Friday, 20 October 1944
Dáil Éireann Debate
In sub-section (1), to delete in lines 50 and 51, page 7, the words “after the date of the said order confirming the scheme and” and to delete in lines 8 and 9, page 8, the words “at any time after the date of the said order confirming the scheme and”.
In sub-section 1 (c) to delete all words after the word “and” in line 51 to the word “rights” in line 53, and substitute therefore the following words “to compulsorily acquire any lands found necessary to be acquired in the course of the work”.
The section empowers the Commissioners to enter on land and to do work without assessing compensation. It empowers them to do anything, after the date of the said Order confirming the scheme and before the conveyance or ascertainment of price of such lands, easements, fisheries or  rights. Under paragraph (d) they are empowered to enter on and so interfere with any such land before any ascertainment of compensation in respect thereof. They are empowered under paragraph (e), if the commissioners so think fit, to do any of the things aforesaid at any time after the date of the said Order confirming the scheme and before any ascertainment of compensation in respect thereof, and under (g), “to do all such other acts and things as shall, in the opinion of the commissioners, be necessary or proper for or incidental to the due carrying out of the scheme and are not specifically provided for by this Act”.
I think these are shocking provisions. What is the good of preparing a scheme, going to all the trouble of providing the machinery that is provided in this Act, setting out the procedure, and having the proposal finally examined and certified by the Minister if you are prepared to allow the commissioners to do what they like, to give them complete and absolute power to go as far as they like outside the scheme,
“to do all such other acts and things as shall, in the opinion of the commissioners, be necessary or proper for or incidental to the due carrying out of the scheme and are not specifically provided for by this Act”?
The provision that all these things may be done before ascertainment of compensation in respect thereof is a scandalous one. A man may be left without his money for two years. That might be all right in the case of an individual who would be in a position to bear that loss for two years, but what about the man who is not in a position to wait for two years for his money? If his compensation were delayed for a year or two, it might be a very serious matter for him. We know how lackadaisical the civil servants are in that respect and how inhuman they can be. They do not worry about the individual. He can just suffer on and that is all about it.
There is absolutely rigid red tape.  They will tell you what the law is. If Deputies make representations in the matter they will tell us that we made the law and that we can abide by it. It would be a shocking state of affairs if this House were prepared to agree to a provision of that sort which would do away with all democratic right and authority that should properly be vested in the people. Having handed over that power to a bureaucratic institution, and having gone to the trouble of preparing a scheme, setting out all the details, and inviting a local authority to examine the scheme and make suggestions thereon, the commissioners can vary or change it or do what they like to construct, execute and complete the drainage works specified in the scheme with such additions, omissions, variations and deviations as they think fit and, before the conveyance or ascertainment of price of such lands, easements, fisheries or rights, to go ahead with the job. The individual is to be pushed aside. He cannot be permitted to stand in the way of this important work. His interest does not count so far as this institution of the State is concerned. If we are to stand for that sort of law an intolerable position will be created in the future, and we will be responsible for it. I vigorously protest against it, and on this side of the House we are going to oppose this section. I am trying to reduce the effect of its construction by the few amendments I suggest, but if they were accepted the position would be bad enough.
Mr. Smith: If Deputy Hughes is not anxious to have an authority set up here to deal with drainage, he may not wish to say so in so many words. He may think it more advisable to get around his difficulty by proposing amendments of this kind. The acceptance of such amendments is impossible, because adequate provision is made for the assessment and payment of compensation.
Mr. Smith: I take it that it is not contended that during the course of a scheme, costing £10,000, £20,000,  £30,000, £40,000, £50,000, £100,000 or £200,000, the authority charged with the carrying out of drainage work must, when a certain obstacle is met, stop all work and close down until such time as the little strip of land they want to enter upon is taken over, and not only taken over, but until such time as the compensation machinery being provided has settled in pounds, shillings and pence what the owner is to get. Nobody with the experience of Deputy Hughes could stand up in this House and suggest that that is a feasible plan in cases of this kind. I cannot believe that the contention is being seriously put forward. No matter what care and attention is given to the preparation of a scheme to see that everything that is wanted is included, engineers will want to acquire strips of land or something else, and the people from whom they will be acquired will be notified in advance. Undoubtedly little things will be overlooked. This section to which Deputy Hughes has taken exception in paragraph 1 (g) says:
“to do all such other acts and things as shall, in the opinion of the Commissioners, be necessary or proper for or incidental to the due carrying out of the scheme and are not specifically provided for by this Act.”
As far as I know that provision has been included in every Drainage Act. It is a necessary provision. Anybody without technical skill who studies the problems that these people will have to deal with will agree that it would be impossible to undertake such work unless we were prepared to give this omnibus power to the authority in charge. It is a question whether we want to have drainage work undertaken or not. I have not the slightest doubt that, if the amendments were accepted, Deputy Hughes, in the course of a few years, would be the first on the Opposition Benches to denounce this authority to which responsibility is given because of failure to carry out some work. I have no intention whatever of considering any amendment along the lines of these amendments. Notwithstanding what Deputy Hughes  said with regard to all this type of legislation, while it is all right to talk in terms of protecting the individual— and I am quite prepared to admit that individual rights should be protected in a reasonable way — whatever experience I have had in the past has led me to the conclusion that in legislation of this kind, too much provision was made in that respect. I think Deputies who have had experience on local authorities in connection with water and sewerage schemes are aware that work is often held up unreasonably by the rights conferred on individuals, rights that I think they would regard as being entirely excessive when regard is had to what the public interest demands, if it is in the public interest that we should go ahead with drainage schemes. We are providing reasonable protection for the individual, but I am not going to provide machinery which would have the effect of clogging the work of the drainage authority, or which would prevent them giving effect to what we are trying to do under this Bill.
Mr. Hughes: Let us examine the effect of this section. The Parliamentary Secretary suggests that small matters are going to clog the machine when it is operating. I am as interested in having drainage work undertaken as the Parliamentary Secretary is, and I want to see the right type of authority set up to deal with it. Notwithstanding the necessity of expediting the work there are big principles involved that affect the rights of individuals, the right of private ownership for which we must have some respect by not handing over to a bureaucratic machine, an inhuman machine, the omnibus powers in the section. Having proceeded to set out a drainage scheme for a catchment area, and giving unlimited powers “to construct, execute and complete the drainage works specified in the scheme with such additions, omissions, variations and deviations as shall be found necessary” if an obstruction that was not foreseen in the first instance is met with the work can proceed and compensation can be talked about afterwards.
Suppose that a man has a mill that  serves a locality, and that an engineer connected with the drainage authority had taken fairly accurate levels, if it was then discovered later that some other engineer had made a mistake, and it is found necessary to lower the mill-stream by five or six inches, that might result in cutting off the power and might destroy the capacity of the mill, leaving it high and dry, and compensation might not be fixed for two years. That might involve a loss of £10,000 or more.
The work will be done and that man's rights will be ignored and he will be left high and dry for two years. There is no limit to the delay in the section. The commissioners can delay arbitration proceedings for one year, two years, five years or as long as they like, and leave the man, who may not be in a position to afford it for six months, out of his money. He may be lucky enough to have sufficient capital to keep him going until the commissioners make up their minds that an award should be made in his case and we will talk later in connection with the justice or injustice of the procedure in relation to the making of an award. I do not want to be unreasonable, but it is not unreasonable to suggest that the power we are asked to vest in this drainage authority is far too wide and is capable of being interpreted to mean anything. The provision gives power
“to do all such other acts and things as shall, in the opinion of the commissioners, be necessary or proper for or incidental to the due carrying out of the scheme and are not specifically provided for by this Act.”
If it were only a twopence-halfpenny job, one could understand that there would be no necessity for the insertion of safeguards, but if a man's vital interests are affected, as they can be affected under the section, he has no protection in any shape or form. He must simply wait until the commissioners at their leisure make up their minds that arbitration proceedings shall go ahead and that an award should be made. I believe that  if the Parliamentary Secretary were free from the influence, from the atmosphere of the Office of Public Works, he would think quite differently with regard to this.
Mr. Cogan: The Parliamentary Secretary has suggested that similar omnibus provisions have appeared in legislation in the past. It may be possible that in some Acts passed by the House somewhat similar provisions have appeared, but is the Parliamentary Secretary quite certain that grave injustices have not been inflicted on property owners under certain legislation? Is he quite certain that grave injustice was not inflicted on people by the Electricity Supply Act, under which farmers were interfered with in various ways in regard to the acquisition of property and the provision of compensation? If some limit were set to the amount of damage or injury which could be caused to an individual property owner under the section, there might be a justification for it, but there is no limit whatever. The commissioners can do anything they wish, even to the extent of depriving a property owner, whether a farmer, a miller or a factory owner, of his means of livelihood and leaving him without compensation.
Mr. Cogan: Suppose a man depends on a mill or small factory for his livelihood and that means of livelihood is taken from him, can anything compensate him for the loss of his livelihood for a number of years? How is he to be paid?
Mr. Cogan: It could mean that a man's family might be rendered destitute, that they might be forced to leave the country. It could mean that a man's children would get into ill-health and nothing could compensate a man in such a case for the worry caused to him during the period which would elapse between the date upon which his means of livelihood was taken from him and the date on which the compensation payable to him is ascertained. He would have no means of knowing with any certainty what compensation, if any, he would receive. I do not think there is any necessity for including a sub-section so drastic as this, without making any provision as to the extent to which the commissioners may go.
Mr. Smith: I imagine that those who are criticising this provision must not have read it. When a scheme is prepared, naturally those who prepare it will see, in the main, what will have to be acquired before the work can be carried out, and provision is made that all those whose rights or interests are being affected, or all those in respect of whose property the compulsory powers are to be used, will be notified and told what will happen. Can anyone tell me what other means we could adopt for doing this work? I do not want the House to think that I am too anxious to get this measure through to-day, or that I am irritable because they are taking so long to deal with the amendments. I will stay here for a month so far as that is concerned. I do not mind how long the Committee Stage takes. It does not concern me in the least. I should like to have criticism, and if there are any provisions in the measure which deserve criticism in a reasonable way, I should welcome it, but I want Deputies to apply their minds to the problem which those who are charged with this task will have to handle. They go in on a river, prepare a scheme and see a mill. They see the sluice, the corner and the bend, and the engineer takes note of them. He says: “I shall have to acquire this, that and something else,” and the scheme will be published. It will be exhibited locally and the people whose property will be acquired will  be notified of the intention to acquire it and will be allowed to see what is to happen. When that has all been done and when the drainage authority has proceeded to carry out the work on 600 miles of river in the Brosna area, as I said last night, in one little catchment, there will surely be some little matter which has been overlooked by those who have designed the scheme.
Mr. Smith: It is scarcely likely. We must give them credit for being able to see the big matters. This provision to which Deputy Hughes takes exception is intended to ensure that, in the middle of the carrying out of this scheme on a series of rivers 600 miles long and costing from £100,000 to £250,000, those charged with that responsibility will be able to say: “We have power to carry out the necessary acquisitions,” subject to the owner having exactly the same right. Deputy Hughes wants us to say that we must close down the whole machinery because of a little intrusion on a man's property until such time as what he is to get has been decided to the last penny and he has got the money into his pocket. I do not think that is reasonable. I am not suggesting that Deputy Hughes does not want drainage, but what am I to think if we are to have an attempt made to force amendments on me which, in our considered judgment, in the judgment of those who have had experience of the intricacies and the difficulties of working drainage legislation, would put it entirely and absolutely beyond the power of any body to operate the section.
Mr. McMenamin: The Parliamentary Secretary is either an innocent or an uniformed man. Everybody knows that when you confer rights and powers on the commission you should also impose duties on them. Did the Parliamentary Secretary ever read the case of Sweeney v. the Minister for Industry and Commerce?
Mr. McMenamin: That was a case in which 32 small farmers in Donegal  were to have their entire property taken from them, but at least it was done by an Order. I quoted the case before on some Bill in which similar powers were being taken. Not one of these 32 men was in a position to put up 10/- in order to defend their case. Their entire rights, at least on paper, were being taken from them by the Department under the Mines and Minerals Act. I asked the solicitor if they would be able to put up something to pay the costs if the case went against them, but they could not. I determined that before these poor creatures would be handed over body and soul to the Department I would fight the case irrespective of the consequences. I was beaten in the case, but I went to the Supreme Court and I beat the Department. I am telling that to the Parliamentary Secretary in order to put him on his guard about handing over rights without strictly prescribing the duties in this case. He should remember he is throwing the whole country under the commissioners. They cannot do the job without having statutory rights, but also imposed on them should be statutory duties, and these duties should be defined. The Parliamentary Secretary talks about serving notice. How is it to be served? Has he defined it?
Mr. McMenamin: I am not quarrelling with the Parliamentary Secretary taking powers; I am warning him because he has never had a duty of this kind cast upon him before and I do not want to see him going too far in regard to these rights. I do not say that he is influenced by the atmosphere of the Office of Public Works, but I would ask him to be  sceptical about it. In handing over these rights he should also impose strict duties and define these duties as strictly as he defines the rights. In that way he will protect both parties. He should stand between the Department and the public with a bias towards the public. That is his constitutional and democratic duty. That is the atmosphere in which he should approach this matter and not be quarrelling with people who are trying to defend the rights of the people. The whole tendency nowadays in all countries is for Ministers and Parliamentary Secretaries to get enveloped, as Deputy Hughes suggested, in the atmosphere of their Department while their strict constitutional and democratic duty is to stand between the Department and the public with a bias towards the public.
Mr. McMenamin: That is the attitude which I ask the Parliamentary Secretary to adopt towards this measure. We all want this measure, but we want to see that, where it imposes a right, it does not also allow of statutory wrongs. The Parliamentary Secretary should take his courage in his hands and approach the matter on that basis because, in consequence of my experience, I am desperately sceptical about the matter. Having in mind that the 32 men I referred to could have been evicted, it was in sheer terror that I took up that case. When it came before the Supreme Court I was trembling, because I was morally bound to look after these men with regard to the costs. Anybody with that experience would certainly have a sense of responsibility with regard to handing over any arbitrary rights to a Department.
Mr. Hughes: I can assure the Parliamentary Secretary that I do not want to be unreasonable about this matter. As powers are being granted to the drainage authority to acquire compulsorily land and wayleaves necessary for the due carrying out of the work, I can very well understand  that it may be necessary to give them further powers to correct any errors during the actual execution of the work, or remove difficulties which might arise. There may be rocks in the way or there may be a variety of other things. It may be necessary to give them powers to correct errors that were unforeseen at the time of the preparation of the plan. But surely the power given here is far too wide. On the interpretation of this section I challenge the Parliamentary Secretary to deny that previous planning and submissions could be substantially changed under the section, and no one could question it.
Mr. Hughes: That previous planning and submissions to the Minister, when he certifies the scheme, could be substantially changed under this section as it is drafted, if it is to be operated in its widest form.
Mr. Cogan: The Parliamentary Secretary said that he could rely on his officials in the Department to foresee the bigger issues which might arise in which the rights of citizens might be affected. But there are matters which might appear very small to the commissioners and which might be very big ones for a particular individual. It might be a matter of that individual's means of livelihood. In addition to that, there is the danger in connection with an omnibus clause like this, which provides cover for every mistake, that there may be a temptation to carelessness on the part of those who are preparing a scheme which would not be there if they had not this way of escape which enables them to rectify any mistake which they may make in their plans.
Mr. Smith: I have nothing further to say on this. An exactly similar provision to this is contained in the Act of 1925, and it is not in any way unreasonable.  I cannot conceive of anybody wanting to see the authority charged with the carrying out of this work finding itself, because of a small matter which had been overlooked in the preparation of a scheme, called upon to close down in the middle of it until such time as the land was compulsorily acquired and compensation fixed. I do not think that that could be seriously urged by Deputies.
Mr. Smith: So far as I know, there has not been any undue case of hardship in the past. In the matter of ascertaining compensation, it would not be right to specify any time because it might not be possible to have the compensation fixed in certain cases within that time.
Mr. Coogan: I should like to ask the Parliamentary Secretary why there is discrimination shown in this Bill as between the persons whose lands are to be compulsorily acquired and those whose lands are to be interfered with in the operation of the drainage scheme. Those whose lands are to be interfered with may, within 12 months from the date of interference, apply for compensation.
Mr. Coogan: I think all that Deputy Hughes has in mind is this, that there is a suggestion in the Bill that the Parliamentary Secretary and the Office of Public Works can go in on lands and remain there indefinitely, without making any move towards compensating the occupiers. All we are asking the Parliamentary Secretary to do is to put a limit of time on that operation. I think that is a perfectly reasonable thing in all the circumstances.
Mr. Cogan: Is the Parliamentary Secretary aware that there is no analogy, inasmuch as the schemes under the 1925 Act were initiated by the local ratepayers, while schemes under this legislation will be carried out, not by the local people, but by a Department in Dublin which might override the rights of the local people?
Mr. Smith: That is so. Under the 1925 Act the scheme in all cases was referred to the local people, but in no case was there a unanimous vote in its favour. Sometimes the voting against was as high as 48 per cent. Section 11 of the 1925 Act covers exactly the same ground as the section about which Deputies are now kicking up such a row. That section says:—
“When the Minister has made an order confirming a drainage scheme... the said order shall operate to confer on the Commissioners power (a) to construct, execute and complete the works specified in the scheme with such reasonable additions, omissions, variations, and deviations as shall in the course of the work, be found necessary, and (b) to enter on any land or premises and there to do all such acts and things as shall be reasonably necessary for or incidental to the construction, execution or completion of the works with such additions, omissions, variations, and deviations as aforesaid...”
Mr. Smith: It is not any wonder that I should complain because of all the fuss that is being created over this section when it is the common practice to include a section of this type in all such legislation.
Mr. Bennett: There is a precedent for it in the 1925 Act, Section 11. If it was considered all right there, I do not see why the Parliamentary Secretary should not have it in this section and let the people get the benefit of the section.
Mr. Dillon: The Parliamentary Secretary says: “I took this section out of the 1925 Act. In effect, it is the same section, so what is all the bother about?” Then he takes up the section  and reads it and we discover there is one word left out.
Mr. Dillon.: Now, it is not a printer's error. Someone in the Board of Works went through the sections and said to the Parliamentary Secretary: “Let us take out this word; we do not know what might happen if anyone went to court.” The point made by Deputy Hughes is that if the Board of Works want to make some trifling adjustment, nobody will complain; but what we do complain of is that the section should be so worded that a scheme having been prepared and agreed to by everybody, the Board of Works unilaterally can now make any amendment it likes. All you have to do is to prepare a scheme to which reasonable men will consent. Having once got their consent, you can tear it up and substitute a new scheme. Under the 1925 Act the word “reasonable” was considered necessary for the successful prosecution of schemes. That is the term employed. If the Board of Works went berserk and proceeded to tear up a scheme, it was open to anyone to go before a High Court judge and ask if such action was reasonable and it was open to the High Court judge to say: “That is not a reasonable amendment within the meaning of the Act.”
It is perfectly clear from the attitude of the Parliamentary Secretary that he went through the Act of 1925 desirous of taking out this section, but some of the hoary warriors in the Board of Works, who are past masters in this business, suggested to him: “Let us take out the word ‘reasonable’. That leaves to the contemptible masses a vestige of their rights. The safe thing when you are dealing with the masses is to leave them no rights at all. They are an ignorant lot and we know best what is good for them. If we take out those words it will be impossible for the ordinary man to haul us before the courts.” We are to have a Ministerial amendment later on an amendment covering one and a half pages, designed to crush——
Mr. Dillon: The tendency of the Board of Works is to crush anyone who may be likely to bring them to the High Courts. If anyone who brings them to the High Courts succeeds in an action it might then be necessary to amend the law. To deal with such a possibility an amendment covering one and a half pages has to be drafted.
Mr. Dillon: They took out the word “reasonable” so that no one will have a right to go to the courts later on; they took out that word lest an adverse decision for the Board of Works might arise. The Parliamentary Secretary, in earlier stages, earned encomiums from the House because he was apparently the kind of man who was prepared to go half-way, and if there was something which was not of fundamental importance to the Bill, he was glad to yield to strong representations from various parts of the House. Deputy Hughes makes this representation:—
“I do not want to deprive the Board of Works of the right to amend a scheme to meet minor unforeseen contingencies, but I want to preserve the right of a man who feels himself so deeply aggrieved by a substantial alteration of the scheme that he would contemplate going to court and arguing that it is unreasonable. That is all we are asking.”
Is the Parliamentary Secretary himself reasonable? If he is, will he not give us back the word that was in the Act that he quotes — the 1925 Act? If he does that, I think he will substantially  meet everyone's objection to the section. If the Parliamentary Secretary will make that gesture at this stage he is an old enough hand in the Parliamentary game to realise that it will create an atmosphere. People do not want to be contentious or difficult, and if the Parliamentary Secretary is prepared to concede something to allay what may seem to him groundless apprehensions, but which to us, in our simplicity, are well-founded, he will go a long way to oil the machinery in order to get this Bill through. But if we are to have a handful of sand thrown between the wheels at every stage and on every amendment, and if we find ourselves confronted with a Parliamentary Secretary who sticks his heels in the ground over the insertion of a single word in the context, then the Committee Stage will go on indefinitely and we will all have whiskers a yard long before we get the Bill through.
Mr. Dillon: On the section, is the Parliamentary Secretary prepared to give us back the word “reasonable”? He intervened at one stage to ask who is going to determine what is reasonable or what is not reasonable. My answer is: a High Court judge. If the Minister for Finance seeks to do under this Act that which he should not do, the remedy is to seek an injunction against him in the High Court. The grounds on which you would seek the injunction would be that the amendment in the scheme was not reasonable. It would be for a judge to determine, having heard the evidence of the  Board of Works and having heard the evidence of the complainant, as to whether the Board of Works could satisfy a reasonable person that the amendment was reasonable.
Mr. Smith: But at this time the amendment would have been effected. What then would be the purpose of having a High Court decision as to whether or not the amendment was reasonable? We have here provided for machinery by which the individual whose rights have been interfered with would be compensated. The Deputy talks about the High Court. What could the High Court do after the act had been committed?
Mr. Smith: Of course it arises. What is the use in saying it does not arise? In the case of any owner of property, any person whose rights have been interfered with, provision is made by which he can have compensation paid to him in respect of that interference. When that is the case, what more is there to gain? What more protection does he want?
Mr. Dillon: I will tell you. When you formulate a scheme it is under the authority of that scheme you can enter a citizen's land, alter the river bed there, and so on, but you are limited by the terms of your own scheme. When operating the scheme, the Minister suddenly changes his mind and decides that he is going to expand the purpose of the scheme considerably, but he wants to avoid the nuisance and annoyance of formulating a new scheme under which he would get statutory authority for the additional things he desires to do, and so he purports to make an amendment in his original scheme.
Mr. Smith: No. We are discussing Section 9. The sub-section to which exception is being taken is really designed for the purpose of covering trivial things which would not have been foreseen by those who prepared the scheme. If you turn to Section 12 you will see that that section is designed for the purpose of enabling the drainage authority to amend the scheme. Before it can amend the scheme, it will have to submit the amendment to the Minister, and will have to go through exactly the same procedure which was gone through in the case of the original scheme. What we are covering here is not at all the type of case which Deputy Dillon apparently has in mind. What we are trying to cover here and what has been covered in all legislation of this kind as far as I am informed is the small unforeseen thing that can always arise in doing a job of this kind, no matter what care is exercised in advance. We are trying to ensure that the authority will have power to overcome that trivial matter and get on with the work.
Mr. Hughes: The important thing is not what we are trying to cover; it is what can be done under this section as it is drafted at the present time. It would be unreasonable for this House to refuse to make provision in this Bill so that the drainage authority would be able to correct any errors that might arise, and we do not want to be a bit unreasonable about it. Their powers here are drastic and very wide. Paragraph (a) gives them power
“to do all such other acts and things as shall, in the opinion of the Commissioners, be necessary or proper for or incidental to the due carrying out of the scheme and are not specifically provided for by this Act”.
 Those powers are very wide. Another thing to which I take exception is that they can proceed to do the work and fix the compensation any time afterwards. It might be three, four, five or ten years afterwards that they would fix the award. In the case of a small matter, that might not mean very much to the individual, but it might not be a small matter — it might mean altering the level of a mill stream by six or eight inches or a foot.
Mr. Hughes: It could be done under this section, because you say: “all such other acts and things”. The word “reasonable” I think is absolutely essential there. If the Parliamentary Secretary contends that the intention is to adjust only small errors or to overcome small difficulties, then there is no earthly reason for refusing to put in the word “reasonable”.
Mr. Dillon: I am submitting to the Parliamentary Secretary that it is hard to avoid that danger without unduly and improperly restricting him. We do not desire either unduly or improperly to restrict his reasonable discretion to correct small oversights in the original scheme. To that end, I think Deputy Hughes has made it clear that he would accept the insertion of the word which appeared in the 1925 Act as giving sufficient guarantee that, if there were some extravagant departure from the scheme, which would properly be dealt with under the machinery provided in Section 12, but which the Minister was attempting to deal with under the discretionary powers of Section 9, an aggrieved party could go into court and say: “Those amendments are not reasonable. If the Minister desires to give effect to them he ought to have recourse to the machinery of  Section 12”. Give us the word “reasonable”, and we will accept it. Perhaps we are being too trusting in accepting that very modest guarantee of safety, but the work has to be done. If the Parliamentary Secretary will say that, on the Report Stage or in the Seanad, he will put in the word “reasonable”, so far as I am concerned he is welcome to the powers in Section 9, subject to the reservation about the compensation clause, which Deputy Hughes has dealt with exhaustively and into which I do not intend to go because I have not looked into it as closely as he has. Give us “reasonable”.
Mr. Smith: Read Section 12. “Whenever in the course of the carrying out of a drainage scheme it becomes necessary, in the opinion of the Commissioners, to acquire compulsorily or interfere substantially...” When a real amendment of the scheme is desired, we have Section 12 there.
Mr. Smith: You may call this authority bureaucracy or delegation of democracy or anything Deputy Hughes wants to call it, but, after all, if it has a job of work to do and finds itself armed with the necessary authority to do it, is that not all that it could require? If, in the course of carrying out a scheme, they find a substantial amendment is necessary or called for, all they have to do is to turn to Section 12 and there they have the power to do it.
Mr. Smith: Again, if we are to be reasonable, other people can be reasonable, too, and I have no doubt  that reasonable people, instead of trying to squeeze themselves in through this sub-section (g), will naturally turn and say: “Here in Section 12 are the powers we want; we have them under this section.”
Mr. Hughes: Deputy Dillon may not understand the danger of this. Section 12 provides that you must proceed, so far as acquiring any new roads or wayleaves is concerned, according to the other sections of the Bill.
Mr. Smith: What advantage would there be in doing that? There would be no advantage in the world to them, so there is no temptation whatever to do any of the things to which expression has been given.
Mr. Dillon: Let us assume that the Parliamentary Secretary is correctly interpreting the situation: what conceivable objection can he have to putting in the word “reasonable”? It has been in the Drainage Act since 1925 — for 20 years. Why did he take it out?
Mr. Dillon: Why did you take out “reasonable”? Will the Parliamentary Secretary tell the House the case in which it was found that the  word “reasonable” constituted itself a snag which actuated him to take the word out of the 1944 Bill? If he were in Opposition when it first occurred to the Board of Works' mind to take out the word “reasonable”, he would have made the rafters ring on the subject of bureaucracy, the interference with the rights of the humblest citizen of Cavan, and would have said, in the classic words of Deputy Flanagan: “If anyone comes down to interfere with land in Cavan, blood will flow”. I can imagine his saying that in his salad days, but now that he has become a respectable Parliamentary Secretary he is as bureaucratic, and as reluctant to acknowledge the rights of the humblest citizens as the most hardshelled old Minister who ever sat on those benches. I appeal to the Parliamentary Secretary to look back to the glorious days of his youth, to remember his young blood, even if he can no longer feel it, and to give us the word “reasonable”. “Reasonable” is a word eminently suited to middle age and, if he feels the burden of years of responsibility bearing him down, let him write on tablets of stone the word “reasonable”. If he does so, he will calm the troubled waters.
Mr. Cogan: When Deputy Hughes' amendment was before us, the Parliamentary Secretary urgently appealed to the members of the Opposition to be reasonable. He used the word “reasonable” in the House on several occasions. He told us that this section was lifted completely out of the Act of 1925 and then, to prove it, he proceeded to read the section and in two sub-sections of the section he came upon the word “reasonable”. Some Deputies may be grateful to him for bringing that fact to their notice but, having introduced this attitude of reasonableness into the debate first of all, and having discovered that the word was already in the 1925 Act, there is no case whatever to be made for excluding it from this section of the Bill.
Mr. Bennett: I myself thought the Parliamentary Secretary was acting in a very reasonable way. I confess I am giving away a lot by accepting the section even with the Parliamentary Secretary's acceptance of the word “reasonable”. I could keep the House occupied for the next three or four hours explaining what might happen.
Mr. Bennett: I could explain what might happen under the section as it stands, but I do not propose to do that. Some of the things which might happen, and have happened in other cases, could be explained, but I would appeal to the Minister to meet us in some way. There is one thing which could happen. If there were a scheme which the commissioners were particularly anxious to carry but which they thought would not be at all popular, or about which there would be a lot of criticism, they might bring in the scheme in such a modified form as to be practically only a draft and then proceed to enlarge it under the provisions of sub-section (c) of Section 9 of this Bill. That might possibly happen, though I am not saying it would. I feel I have been more than reasonable in accepting it with the insertion of the word “reasonable” which was in the original Act.
Mr. Coogan: I think the Parliamentary Secretary is frightened of the mysterious significance of this word. There is no limitation caused by adopting the word “reasonable”. It does not put any brake on the powers of the Board of Works, but asks the board to do what the Civil Service machine should do in normal circumstances. We are only asking that and I would appeal to the Parliamentary Secretary to let us have that in the Bill and get on with the work.
Mr. Smith: We have to remember the delay that could arise if we wanted  to interfere in some slight fashion with a man's property and if he proceeded to court to secure an injunction restraining us from doing that certain thing, asking the court over a very trivial matter to determine whether it was reasonable or not. It takes the court time to arrive at those decisions. My contention is that this provision here is intended only for the trivial matters that will undoubtedly arise, no matter what care has been taken in the initial stages. I am not prepared to insert this word here, as it could mean litigation, which would undoubtedly have the effect of impeding us unnecessarily over trivial matters.
Mr. Smith: We all know there are such people. We all know that, where a State authority is involved, they have always been fair game for attacks of this kind. I do not understand those who pretend to have this excessive interest in the rights of the individual: there is nothing here at stake about which they should be contending at all.
Mr. Hughes: The Parliamentary Secretary is pressing to know what we propose to do under it, but our point of view is about what can be done under it, and that makes all the difference. We are pointing out how it could be used, and we do not want to leave the possibility open. The Parliamentary Secretary should look at sub-section (1) (c), which says:—
“To acquire compulsorily the several lands, easements, fisheries, water-rights, and other rights proposed in the scheme to be so acquired, and, if the commissioners think fit to do so, to enter on any such lands or exercise any of such easements, fisheries, water-rights, and other rights after the date of the said Order confirming the scheme...”
There is nothing trivial about that. They can enter on any such lands and exercise rights in regard to fisheries  and water. They might put a mill out of commission which had been working for many years. We do not want to be unreasonable but the Parliamentary Secretary is not trying to be reasonable or to meet the House.
Mr. Dillon: Nobody wants to limit the Parliamentary Secretary's powers but surely the Parliamentary Secretary is not so long removed from rural Ireland as to fail to recognise that what is of immense importance to a neighbour of his in County Cavan may, in the eyes of the Board of Works, who are handling vast schemes all over the country, appear perfectly trivial. It is all very well for us, sitting in Dublin, to wave our hand and say: “Small considerations must be set aside for the greater good,” but, after all, this country consists of individuals and families who have rights just as sacred as larger sections of the community.
It will be admitted, of course, that where the greater good is clearly to be served, the lesser good must give way but we are not envisaging a situation in which every amendment that the Board of Works considers necessary for the successful prosecution of a scheme, already drafted, will be contested. As Deputy Cogan has pointed out, nobody but a fool would dream of going into the High Court against the Government unless a matter of great substance to him was at stake. It is all very well for the Parliamentary Secretary to say that, if the complainant were a prudent man, he would not attach any importance to what he was concerned about at all but that is very poor consolation for the man himself, who cannot see his way to agree with the Parliamentary Secretary and who says: “The amendment you propose to make is going to strike at an interest of mine which I should have raised very vigorously when the original scheme was being drafted had I foreseen that you intended to trespass upon my rights. It was your assurance, when the original scheme was being drafted, that this interest  would not be interfered with that kept me silent. Having imposed silence upon me when the original scheme was being drafted by the assurance that I was not going to be interfered with, you now claim the right to interfere with my interest on the ground that the interference is of a minor character and you preclude me from going into court and making the case before a judge that this amendment of the scheme may be of a minor character in the eyes of the Board of Works but, from my point of view, is of a vital character, which brings my interest within the scope of the scheme and which gravely prejudices me — and this in a way which has prevented me from making the representations I should have been entitled to make had I had notice of the intention of the Board of Works to infringe upon my rights before this scheme was determined in its original form.”
If we are reasonable, as I believe we are, I imagine that such a case as that might not arise in 25 years but one of the surest guarantees that such a case would not arise would be the knowledge in the Board of Works that there was resort to the High Court if it did. If that knowledge is there, as a result of what we put in the Bill, the right to go to the court on the word “reasonable” will rarely, if ever, be exercised. If that right is not in the Bill, in terrorem to the Board of Works, then a very considerable number of little people, of whom we never hear anything, may have great cause of complaint and may labour under a deep sense of injustice.
We all have to live in this country, and the Parliamentary Secretary has enough experience of minor relief and employment schemes to realise that any scheme put into operation in a rural area will have a better prospect of success if there is a conviction amongst the community that substantial justice was done to everybody affected by the scheme. If you have one sore “thumb” in the middle of the district, he himself, his children, grandchildren and relatives believing that he has been unjustly treated and has been denied the right to go into  court and fight his corner, you will create one of those feuds which those of us who live in rural Ireland understand only too well. If the Parliamentary Secretary will concede the word “reasonable”, we are prepared to accept the concession as the most substantial safeguard he can afford in all the circumstances. So far as I know the mind of the Opposition, they want this Bill to go through as a substantially uncontested measure, amending it only in details which will improve its efficiency. The Parliamentary Secretary is not going to ruin his career by making this concession. We ask for the word “reasonable” to meet our views, whether the Parliamentary Secretary agrees with them or not. If Parliament is to enact this Bill effectively, the Parliamentary Secretary should make some concessions to the Opposition which, if they had not asked for them, he would not have thought of affording. We are asking for the word “reasonable” and it is not a very substantial demand. If the Parliamentary Secretary now concedes it, having expressed his own view, it will be a fairly substantial concession and I think I express the opinion of the Opposition when I say that it is a concession that will be properly appreciated.
Mr. Smith: I am not prepared to accede to the request. The Act of 1925 did not contain any section similar to Section 12. If the authority of that time found itself in a position in which it would have to amend a scheme, there was no Section 12 to fall back upon. It might be forced to use a sub-section of this kind. I do not like the word “reasonable” to be applied in this sense. Deputy Dillon has a great deal of confidence in the wisdom of the High Court to-day and in those who preside over those institutions. It is all right for the High Court to determine certain things but this is not the kind of question which should be submitted to a court of that kind. I do not see how such a court could adjudicate on a question as to what is reasonable in the matter of interference with a strip of land for the purpose of properly giving effect to a drainage scheme.
Mr. Smith: There is no section similar to Section 12 in the Act of 1925. We have here a section which enables us to make any substantial amendment which may be necessary. This provision in Section 19, to which exception is being taken, is intended to deal only with minor details which arise in the course of the carrying out of the work and I am not prepared to accept any modification of it.
Mr. Hughes: The argument which the Parliamentary Secretary uses is against himself because, when he has Section 12 here, there should be no difficulty about putting in the word “reasonable”. The fact that the word “reasonable” appeared in the 1925 Act and that, as the Parliamentary Secretary says, you had no section such as Section 12 of this Bill in that Act, made it much more difficult to proceed under the 1925 Act. Then he says that to make bigger corrections or wider variations, you have Section 12 to operate.
Mr. Dillon: Really to hear a member of the Government saying that he is not prepared to leave to the High Courts of this country the interpretation of the word “reasonable” is to advance to an extremely extravagant position because I should say that 70 per cent. of the judgments given by the High Court of Éire turn entirely on the question as to what a reasonable person would do. The first question that a judge has to determine is whether what is alleged to be a libel could convey the meaning alleged to a reasonable person.
Mr. Dillon: The Deputy has too relevant a mind to attempt by a red herring of that kind to deflect us from  the matter we are discussing at the moment. We are discussing the Parliamentary Secretary's dictum, his obiter dictum, that he is reluctant to leave to the High Court the determination of what is reasonable or unreasonable. I am directing attention to the fact that a great part of a High Court judge's time is devoted to determining that very question. If we are to remove from his discretion the determination of what is reasonable or unreasonable, then we might as well set aside the High Court altogether. That sounds very much like the salad days of the Parliamentary Secretary because I remember his saying at one time that it was high time we got rid of the old nuisances in the High Court.
Mr. Dillon: I am dealing with that. I think the High Court is an eminently suitable tribunal for the purpose of determining what is reasonable. The Parliamentary Secretary is referring to his earlier view and that was that the  High Court was superfluous and unnecessary where general executive action——
Mr. Dillon: I think I am entitled to say that if the Parliamentary Secretary wants to expedite the passage of this Bill, he must make reasonable concessions to the Opposition, and if he does not the Opposition is entitled to put forward every argument in support of their contentions.
Mr. Dillon: That may take a long time. We are trying to help the Parliamentary Secretary to get the Bill through expeditiously and the way to do that is by making reasonable concessions at the appropriate time. That would create an atmosphere on this side of the House which will be a very big factor in securing the smooth passage of this measure but if we are blocked and hindered at every point, we must discharge our duty as an Opposition here, and we shall examine every section and every amendment in the exercise of our constitutional rights. We are seeking to preserve the rights of the individual citizen, to go into court if he thinks himself properly aggrieved by actions of the Board of Works, and the attitude of the Parliamentary Secretary is that he will not be allowed to go into the High Court. I do not believe there are half-a-dozen in this House who, in their hearts, do not feel that the individual citizen should have the right of appeal to a High Court judge, if he believes that a Government Department is improperly trespassing on his rights. We are asking that words be put into the section to preserve that right and the Parliamentary Secretary, on his own admission, says that he is deliberately taking out a word that was in a similar section of the 1925 Act because he does not want people to go into the High Court, as, if they did, they would delay him too long.
 I want to preserve for a person, who feels aggrieved and who feels his grievance so deeply that he is prepared to stake £1,000 to prevent a Government Department from inflicting that grievance upon him, his right to go to court. Why should he not have it? Our whole legal system is designed to provide effective remedies against any Government Department that invades the rights of the citizen, and by our legislation we are being asked to stymie the efforts of the courts to provide the individual citizen with a remedy against those who trespass upon him. Surely this House should not set itself to the task of upsetting a system that has been established down through the centuries, to protect the citizens from the encroachment of authority — and the removal of that word “reasonable” is really designed to effect that purpose. Its purpose is to set aside the High Court. An important principle is here involved. I shall be glad if Deputy Hughes challenges a division if the Parliamentary Secretary will not give way, but I should be infinitely better pleased if the Parliamentary Secretary would say that, although he did not see the necessity for this safeguard, rather than appear mulish, he would give us the word “reasonable” although it did not make very much difference one way or the other. If he is prepared to go so far I have no doubt that he will be well rewarded by the co-operation he will receive from this side of the House before the Bill is finally through. I appeal to him not to take up the position that some high principle is involved, that his honour is involved in sticking to what he originally intended to do and that he does not intend to yield to any representations that may be made to him. Unless he has it in his mind to give some concessions, he is reducing the Committee Stage to a complete farce and he is throwing on the Opposition the responsibility of fighting every inch — which they do not want to do — in order to direct public attention to the dangers of this legislation, legislation which need not have in it any dangers and which, between us, we could render quite harmless and possibly  capable of achieving very substantial good.
Burke, Patrick (Co. Dublin).
Crowley, Fred H.
Gorry, Patrick J.
|Lemass, Seán F.
Little, Patrick J.
Lydon, Michael F.
O Briain, Donnchadh.
O Ceallaigh, Seán T.
O Cléirigh, Mícheál.
O'Connor, John S.
O'Loghlen, Peter J.
Rice, Bridget M.
Ryan, Mary B.
Skinner, Leo B.
Bennett, George C.
Burke, Patrick (Clare).
Dillon, James M.
Dockrell, Henry M.
Doyle, Peadar S.
Halliden, Patrick J.
McFadden, Michael Og.
O'Donnell, William F.
Redmond, Bridget M.
Mr. Smith: I move amendment No. 30:—
In sub-section (1), line 42, to delete the figures “1939” and substitute the figures “1944”.
Amendment agreed to.
Question proposed: “That Section 10, as amended, stand part of the Bill.”
Mr. Roddy: On the section, sub-section (1) provides that it shall not be obligatory on the Commissioners, when constructing drainage works... to comply with the Fisheries Acts, 1842 and 1939. Sub-section (2) qualifies that to some extent by stating that when constructing drainage works, etc., the commissioners shall take such precautions and make such provision as the Minister for Agriculture may consider adequate for the protection of and avoidance of injury to fisheries... provided that such precautions and such provisions will not cause substantial detriment to such drainage works or substantial hindrance to their construction. Certain fishermen throughout the country feel rather anxious about the phrasing of this section. Some of them at least feel that they may lose the rights that they  have hitherto enjoyed. I omitted to put down an amendment to the section, but I want an assurance from the Parliamentary Secretary that every possible precaution will be taken to ensure that fishery rights will be safeguarded to the utmost possible limit, and that the section will be interpreted in as generous a way as possible so far as fishery rights are concerned.
Mr. Smith: We have had a good deal of discussion with the Department concerned on this matter, and I think I can give Deputy Roddy the assurance that he has asked for. I suppose the Deputy is right in saying that while sub-section (1) gives an overriding authority, that is qualified a good deal by the provision in sub-section (2). After all, if some point should arise, I am sure the Department of Agriculture and the Drainage Authority will meet and try to arrive at a suitable arrangement. We will be anxious, and they will be anxious, to protect the fisheries. Suppose, however, both parties fail to agree, there must be some means of bringing about an agreement.
Mr. Roddy: It would be of advantage, I suggest, to have an appeal committee.
Mr. Smith: Not between two State Departments. I think the Deputy can take it that ample protection is afforded.
Mr. Roddy: My reading of sub-section (2) is that the Commissioners can ignore the provisions made by the Minister for Agriculture for the protection of the fisheries.
Mr. Smith: That is not so.
Mr. Roddy: The fishermen all over the country are very much concerned about the interpretation that may be placed on this section by the Commissioners of Public Works. They feel that if the section is interpreted too rigidly it may be detrimental to some of our inland fisheries.
Mr. Smith: The Deputy's point has already been recognised, and protracted  discussions have taken place between the two Departments concerned.
Mr. Roddy: And with representatives of the fisheries?
Mr. Smith: The Fisheries Branch of the Department of Agriculture and ourselves have discussed this very fully. Every effort will be made to protect the fisheries. Somebody must be in a position to give the order to go on with the drainage work. That job will have to be performed by us, but only after we have done everything in our power to overcome any difficulties or dangers that may arise.
Mr. Roddy: I am satisfied if the Parliamentary Secretary will give an undertaking to examine the section between now and Report Stage, and that in order to safeguard the rights of fishermen he will introduce an amendment designed to that end. Will the Parliamentary Secretary give that undertaking?
Mr. Smith: It is the Minister for Agriculture who is the deciding authority.
Mr. Roddy: He is not the deciding authority according to sub-section (2) which says:—
“provided that such precautions and such provisions will not cause substantial detriment to such drainage works or substantial hindrance to their construction.”
Mr. Smith: The Minister for Agriculture is the deciding authority, subject to certain reservations.
Mr. Roddy: The Parliamentary Secretary was correct in his first statement, that the Commissioners of Public Works are the deciding authority in these matters.
Mr. Smith: I am advised that that is not so.
Mr. Roddy: We can only judge by the phrasing of the section. If English means anything, the section means what I have just said.
Mr. Hughes: Is not the section very badly drafted? Would you not think that the Commissioners should have to satisfy the Minister and not to satisfy himself?
Mr. Smith: The Minister for Agriculture is the person responsible for the protection of the fisheries. We are responsible for the preparation of the drainage scheme. Naturally, it will be our obligation to satisfy the man responsible.
Mr. Hughes: Why not say that in the section? It is laid down there that the Minister is to satisfy himself. I suggest that the commissioners should have to satisfy the Minister for Agriculture.
Mr. Roddy: I think it is pretty clear from the section that whatever provisions are made by the Minister for Agriculture for the purpose of safeguarding fishery rights, these provisions can be set aside subsequently by the Commissioners of Public Works if they interfere in any way with the carrying out of a drainage scheme. That is the meaning of the sub-section as I read it.
Mr. Smith: The sub-section says:—
“provided that the said Minister shall, in consultation with the Commissioners, satisfy himself.”
That is to say, he will have to be satisfied.
Mr. Hughes: The Minister has to satisfy himself, but he can do nothing about it. That is my objection to the section. If, on the other hand, the commissioners had to satisfy the Minister, he could hold up a scheme until he was satisfied. Anyone reading the section can see that while the Minister has to satisfy himself he can do nothing.
Mr. Smith: The section is all right.
Mr. Roddy: It does not read all right. Will the Parliamentary Secretary look into it between now and Report Stage?
Mr. Hughes: I think the section should not be left as it is with the provision that the Minister is to satisfy himself.
Mr. Roddy: According to the section, there can be no doubt that the Commissioners for Public Works are being given power to set aside whatever provisions are made by the Minister for Agriculture for the protection of the fisheries.
Mr. Smith: They are not.
Mr. Roddy: That is how the section reads.
Mr. Smith: The section reads:—
(1) It shall not be obligatory on the Commissioners, when constructing drainage works in pursuance of a drainage scheme, to comply with the Fisheries Acts, 1842 to 1939.
(2) Notwithstanding the exemption conferred by the foregoing sub-section of this section, the Commissioners shall, when constructing drainage works in pursuance of a drainage scheme, take such precautions and make such provisions as the Minister for Agriculture may consider adequate for the protection of and avoidance of injury to fisheries during or in consequence of the construction of such drainage works, provided that the said Minister shall, in consultation with the Commissioners, satisfy himself that taking such precautions and making such provisions will not cause substantial detriment to such drainage works or substantial hindrance to their construction.
Mr. Hughes: I think it would be better if the section were to read the other way: that the commissioners will have to satisfy the Minister for Agriculture as regards the precautions to be taken to safeguard the fisheries.
Mr. Smith: He has the power there all right.
Mr. Roddy: Will the Parliamentary Secretary look into it between now and Report Stage?
Mr. Smith: Yes.
Mr. Anthony: I quite agree with the section as it is, having heard it read out and having read it myself. The Minister for Agriculture has certain responsibilities in regard to fisheries, the protection of fisheries and the rights of vested interests in fisheries. Assuming that the Parliamentary Secretary decides on a certain scheme of drainage in a given area and that it is in conflict with the views of the Minister for Agriculture, what happens then? I should like to know that. Supposing the Minister for Agriculture advises the drainage authority that a drainage scheme proposed for certain areas would be deleterious to the fishing industry and supposing the Parliamentary Secretary holds a different view, what happens? Is there any authority to appeal to? Can the Minister for Agriculture appeal in this matter or is there anybody to appeal to?
Mr. Smith: I am advised that this section gives to the Minister for Agriculture, who is responsible for the protection of fisheries, all the power towards that end that he requires.
Mr. Anthony: And that he had previously?
Mr. Smith: Yes.
Mr. Anthony: I am satisfied.
Section 10, as amended, agreed to.
Mr. Hughes: Three amendments hang together here.
An Leas-Cheann Comhairle: Amendments Nos. 31, 32 and 33?
Mr. Hughes: Yes. I move amendment No. 31:—
In sub-section (1) (a), line 2, page 9, before the word “with” to insert the following words “after submission to the county council of the drainage district for observations and”.
The section provides that, where a road or bridge is closed to traffic, the commissioners shall maintain a temporary road or bridge, or, by order made with the consent of the Minister for Local Government prescribe an  alternative route. It struck me that it might be all right for the Minister for Local Government and Public Health to prescribe an alternative route where it involved a main road or trunk road but if it were in a very backward part of the country, the Minister for Local Government might not be deeply concerned and might approve of an alternative route which might be very inconvenient for the local people. I wish to insert the amendment that the matter should be submitted to the county council for their observations. I do not suggest that they should be given power of veto, but that it should be submitted to them merely for their observations. I think the amendments are very reasonable and I hope the Parliamentary Secretary will agree to them.
Mr. Smith: Would not that be the very first thing that the Minister for Local Government would do?
Mr. Hughes: If it is the first thing he would do, why not prescribe it, why leave it as a thing that we believe will happen?
Mr. Smith: Could the Deputy imagine a bridge or road being interfered with in County Carlow by those charged with the execution of drainage schemes, and these alterations being approved by the Department of Local Government without consultation with the County Surveyor for Carlow and the county council?
Mr. Hughes: Why not put it in the Bill?
Mr. Smith: One does not set out in a Bill of this kind to direct and provide that every Department will do every conceivable kind of thing that in the normal every-day routine is done. There is no necessity for these amendments, in my view, because the Local Government Department would be bound to consult the local authorities.
Mr. Coogan: Under Section 11 (1) (c), where a permanent bridge is built—
An Leas-Cheann Comhairle: We will come to that on the section.
Mr. Coogan: It arises on the amendments. The local rates will have to bear portion of the cost. I think it is only right that the council should have an opportunity of expressing its views, as suggested in these amendments, because if you deny them that right, you are denying the principle of representation in local taxation.
Mr. Smith: We are not denying them that right.
Mr. Coogan: They have no say what-ever in the matter. They find a bridge built and the cost of it imposed on the local rates by ministerial order.
Mr. Smith: The Minister for Local Government has to be consulted.
Mr. Coogan: The Minister, without reference to the county council, may impose the cost on the local ratepayers.
Mr. Smith: That, of course, is an unreasonable argument.
Mr. Coogan: It is a very small matter.
Mr. Smith: Bridges have been erected in the past by the Board of Works. It is quite a usual thing for agreement to be arrived at as to the amount of advantage that would accrue to the local authority because of the improvement effected and the amount for which each would be responsible in respect of the cost of construction. The term “the Minister for Local Government” is used here as meaning the Local Government Department in consultation — as they will naturally have to have consultation — with the local authority and with the technical officials of the local authority.
Mr. Hughes: It might be only the county surveyor.
Mr. Smith: The county surveyor could not act without authority from his local authority. He has no authority.
Mr. Hughes: What is the objection to putting it in?
Mr. Smith: You could put anything in a Bill, but there is no reason for it.
Mr. Hughes: You can understand that a Minister may be deeply concerned where there was a main road or a trunk road involved and might make sure that the thing was thoroughly examined. If it was at the foot of a mountainside or where it did not matter to him, in the Custom House, what happened, and if he was assured by the board of health that the arrangement was all right, he might, exercising his power, consent right away without further examination, and it might turn out to be very inconvenient for the particular people in the locality. I suggest that the local authority should be asked merely for their observations. They cannot hold it up, but it should be brought to their notice that a temporary road or bridge was going to be constructed. People might have to go miles around for months, and a lot of inconvenience might be caused, because no one up here worries about it. The whole trend is away from the people having any say in the matter or being permitted to exercise any power in it.
Mr. Smith: The local authority will have to be consulted. How are they going to determine, without the assistance of the staff of the county council, the portion of the cost that the Minister should approve as being the responsibility of the county council concerned? It is obvious that there will have to be consultation. It is all right to say why not insert it here. You could insert all kinds of things in the Bill.
Mr. Hughes: The Minister for Local Government fixes the amount.
Mr. Smith: He does, but how could he do that without consulting the local authority?
Mr. Hughes: He could consult the staff of the local authority.
Mr. Smith: I know, but the staff cannot act without authority from their employers.
Amendment, by leave, withdrawn.
 Amendments Nos. 32 and 33 not moved.
Mr. Smith: I move amendment No. 34:—
In sub-section (1), page 9, to insert the words “road or” before the word “bridge” wherever that word occurs in lines 27, 29, 32, 48 and 51.
This is merely to bring the sub-section into conformity with other sections.
Amendment agreed to.
Question proposed: “That Section 11, as amended, stand part of the Bill.”
Mr. Hughes: Sub-section (1), paragraph (d), provides:—
“if any doubt, dispute, or question shall arise as to whether the Commissioners, in the construction or maintenance of any temporary road or bridge or the restoration of an existing road or bridge or the improvement of an existing alternative road or bridge (as the case may be) pursuant to this section, have complied with the relevant provisions of this section, or as to whether a permanent new bridge constructed by the Commissioners confers substantially greater advantages on the public of any county or urban district than the original bridge, such doubt, dispute, or question shall be decided by the Minister for Local Government and Public Health whose decision shall be final and conclusive.”
It is not a very big point, but where a dispute arises, I do not think it is the function of the Minister to settle the dispute. I think it ought to be the function of a court. Sub-section (3) provides:—
“Nothing in this section shall operate to impose on the Commissioners any duty or responsibility in respect of the maintenance of any new permanent road or bridge constructed by them in pursuance of this section or any road or bridge similarly restored or improved by them.”
There is no provision at all as to who is to maintain the road or bridge.
Mr. Smith: The county council.
Mr. Hughes: It may be a bridge that is not the responsibility of the local authority.
Mr. Smith: Under this section?
Mr. Hughes: Yes.
Mr. Smith: It would be only bridges that afterwards would be the responsibility of the local authority.
Mr. Hughes: I have been told that in Longford the county council would not surface a bridge because the railway company had under-taken to maintain it. There should be some provision for maintenance and reconstruction, if necessary. Who would reconstruct a bridge if, by an act of God, it was knocked down?
Mr. Smith: Are we not giving all that is wanted in sub-section (1) (d)? Would not the Minister for Local Government have a right to say who would be responsible? That would be in favour of the line the Deputy is taking. If the Minister has responsibility for the local authority is it not likely that a decision would be in their favour?
Mr. Hughes: The Minister will fix maintenance. I was referring to sub-section (3).
Mr. Smith: If we have to interfere with a bridge, in the normal way maintenance would be the responsibility of the local authority. It is a question of how a bridge would be reconstructed and who would be responsible for the cost.
Mr. Bennett: In sub-section (3) where there is a question of a bridge being rebuilt, which confers an advantage on any county, the Minister may apportion the cost between the public health authorities and the Commissioners of Public Works. This is a Drainage Bill and I am assuming that the commissioners would not interfere with a bridge unless it was absolutely necessary to do so. I also assume that it is not their function to set out to improve the country generally by putting up glorified bridges. County  councils are supposed to preserve existing bridges in fairly good order. They are bound to provide reasonable conveniences for the public and to see that bridges are suitable for the traffic they carry. If the commissioners interfered with a bridge and put up an elaborate one, which they considered to be necessary for the drainage works under-taken, I do not see why county councils should be asked to bear any portion of the extra cost involved. The Parliamentary Secretary will probably say that a better designed bridge than the old one was necessary, but that is not the concern of this Bill. That would be a matter for discussion on a local government debate. As far as we can assume, the Drainage Commissioners are not going to set about putting up any bridges that are not required for drainage schemes. If they find it necessary to put up a more elaborate bridge than an existing one I do not see why the ratepayers should be asked to foot any part of the bill.
Mr. Smith: That is asking too much seeing that there are hundreds of bridges in different counties which county surveyors would reconstruct if they had the money. It is because the funds are limited that they are not able to deal with dozens of bridges every year. If it happened in the course of time that we found it necessary to interfere with a bridge for the purpose of carrying out a drainage scheme, and provide a new bridge, we would be conferring a benefit by the erection of a more substantial bridge which would be likely to last for a long period. We would be doing something that would be of benefit to the local authority as well as improving drainage. That being so I do not see why anybody could object to paying portion of the cost.
Mr. Bennett: I am still not satisfied. I can envisage the possibility of a small benefit accruing to a local authority from drainage and, if God sends such luck, they should get the benefit. Very few things in this Bill would confer a benefit on local ratepayers. If they are lucky in the draw, as a result of the operations of this Bill, and if a better bridge is erected  than the existing one, it is only reasonable that the local people should get the advantage.
Mr. Smith: We give them all they want as a windfall and I think that is enough.
Mr. Bennett: This is a windfall they should get also.
Mr. Coogan: The local authorities have no say, except indirectly through the Minister for Local Government, regarding the erection of a permanent bridge. It is not at all clear that the county authorities as such would be consulted. There may be consultation with the county manager and the county surveyor, but after that the local ratepayers will find themselves saddled with a very substantial charge for a bridge that might not be very beneficial to the local community.
Mr. Cogan: I notice that the Parliamentary Secretary has not objected to the word “reasonable” in so far as it refers to the decision of the Minister for Local Government as to what portion of the cost should be borne by local authorities.
Paragraph (c) of the sub-section reads:—
“...the Minister for Local Government and Public Health shall certify what part of such cost in his opinion ought reasonably to be borne by the council of such county or urban district...”
There is a question as to whether the Minister would be the best person to judge the amount to be borne by the local authority. I would be prepared to go as far as agreeing with the Parliamentary Secretary, where an old bridge was destroyed and a new one was erected by the Drainage Board, that it would be reasonable for local authorities to bear portion of the cost. I am not sure that the Minister for Local Government would be the best person to decide the matter, as he would probably be a member of the same Party.
Mr. Smith: Would the Deputy leave it to the Minister for Finance?
Mr. Cogan: Certainly not.
Mr. Smith: I would be prepared to do that.
Mr. Cogan: I am strongly against agreeing to any Minister of the same Party deciding such questions. I would be inclined to have it decided by an outside body.
Mr. Hughes: What prompted me to put down the amendment is the fact that compensation is involved. It is reasonable that a local authority should pay the difference where improvement results, when an old bridge was taken down and a new one erected. There is then a question of assessing the margin of improvement that resulted and the amount to be paid by the local authority. Actually the Minister for Local Government is going to be asked to arbitrate between a local authority and a Department of State, if a dispute arises. If agreement can be got, well and good, but under paragraph (d) of sub-section (3), if agreement cannot be got, the Minister for Local Government fixes the amount, and that is the end of it. I should be very suspicious that the Minister in that case might be inclined to favour the Department and I do not think he would be an impartial judge. In any case, I object to the Minister arrogating to himself the function of a judge. If the point cannot be settled otherwise, it should be a matter for the court.
Mr. Smith: Surely the suggestion that the Minister for Local Government is not, from the point of view of the local authorities, an excellent choice as arbitrator between the central authority and the local authority is one which cannot be seriously put forward. The fisheries people are satisfied if the Minister responsible for fisheries is to be consulted where fishery interests are involved. Where Electricity Supply Board interests are concerned, there is consultation with the Minister for Industry and Commerce. All these interests are satisfied with that arrangement, but here we come along generously and say that, where a bridge is erected in the course of the  carrying out of a scheme and where there is a dispute as between the local and the drainage authority as to the portion of the cost which will be borne by the local authority, the decision will be left to the Minister for Local Government who has an association with and responsibility for the local authorities. Let any of us put himself in the position of the Minister responsible for Local Government dealing with a matter affecting a local authority. Is it likely that he would give a decision in favour of the other authority, that he would load the dice in favour of the other authority, as against the local authority? The thing is not reasonable and Deputy Coogan, who seems to be enjoying this, realises that it is not reasonable to advance any such contention.
Mr. Bennett: The Parliamentary Secretary has used the word “generously”. I am racking my brains to find out where the generosity arises. The Parliamentary Secretary almost laughed when I suggested that county councils might take advantage of a windfall. Now he goes further and speaks of generosity. The generosity takes the form of building an elaborate bridge, assessing the amount of the cost which was reasonably necessary and saying that anything over and above will have to be paid by the local authority. I fail to see where the generosity comes in.
Mr. Hughes: There is no analogy between the function of the Minister for Agriculture and the function of the Minister for Local Government. The Minister for Agriculture is being asked to look after the interests of fisheries, but the Minister for Local Government is being asked to fix a fine in respect of the improved value of the bridge. The Minister for Agriculture is not asked to fix any fine.
Mr. Smith: The Minister for Local Government is responsible for roads and all such matters.
Mr. Hughes: There is no analogy.
Mr. Cogan: There is also the point that the Minister for Local Government has not to find the money. The  money has to be found by the county council. This is a dispute between a county council and the drainage authority, which is part and parcel of a Government Department. Will the Minister not be more inclined to load the dice in favour of that Government Department as against the local authority, even though that local authority may be subject to his own Department?
Mr. Smith: He will not.
Mr. Cogan: In one case, it is a matter of money to be expended by the drainage authority which will have to be provided from the Central Fund. The Minister, holding collective responsibility, will have to share with the Minister for Finance responsibility for finding it, but he has no such responsibility for finding the funds provided by a local authority, and he will, therefore, be inclined, I think, to be biassed in favour of the drainage authority as against the local authority.
Mr. Smith: I am prepared to accept an amendment that the Minister for Finance be allowed to adjudicate.
Mr. Allen: I suggest that Deputy Hughes and Deputy Cogan are doing injury to the bodies they hope to protect by their proposal. I would much prefer the Minister for Local Government, advised by the county engineer and his own engineers, to a judge of the High Court or anybody else who had no sympathy with a local authority.
Mr. Hughes: If we were sure he would take the advice of the local authority.
Mr. Allen: He will be advised by his own experts and by the technical experts of the local authority.
Mr. Hughes: He may be advised.
Mr. Allen: It is 100 per cent. certain. Any other arbitrators you could select or mention would not have the same sympathy with a local authority as the Minister and his Department, and this  provision is a very good safeguard of the interests of local authorities.
Mr. Hughes: You are asking the Minister to adjudicate between central and local funds.
Mr. Smith: In every case the Minister for Local Government will have regard to the rates and he naturally will be influenced in favour of the ratepayers, in spite of the feeling Deputy Cogan has about it.
Question put and agreed to.
Mr. Smith: I move amendment No. 35:—
In page 10, line 6, to insert the word “navigation-right” before the words “or other”.
This amendment is consequential.
Amendment put and agreed to.
Mr. Hughes: I move amendment No. 36:—
To delete paragraphs (e) and (f), lines 42-54.
If a scheme has to be amended and substantial interference carried out, the section says that the commissioners shall do such and such. It ends by saying that they can proceed with the work in any case without assessing compensation, and that if they do damage which was not envisaged, even under the procedure set out, they will be liable to make restitution or payment of compensation. I cannot understand, where there is a substantial departure from a scheme, why it is necessary to proceed with the scheme and let the people who have to suffer inconvenience and loss wait possibly for one year, two years, three years, or five years until compensation is fixed. It is very unreasonable. It may be all right for a man who can afford to wait until compensation is fixed, but another individual may find it very inconvenient to wait for any period at all.
This is a question of substantial interference and the Parliamentary Secretary cannot get away with it this  time by saying it is a trifling matter. It is provided that the commissioners can go ahead with their scheme and make restoration or restitution or pay compensation afterwards. There are men who might be ruined if their property was substantially interfered with and if they had to wait two or three years for compensation. What are they to do in the meantime? How are they to live in the meantime? Surely you must make some provision for safeguarding their interests. The trouble about all this piece of legislation is that there is no consideration for the individual. It is true that you must sometimes, for the greater good, forget the individual's interests possibly to some extent, but simply to ignore his interests completely or forget about his welfare for one year or two or three years, or until it is convenient for the commissioners to set up arbitration machinery and fix compensation is, I think, most unfair and I certainly object to it.
Mr. Smith: We do not propose to do anything here that we have not already done.
Mr. Hughes: It is not with our consent that you are doing some of them.
Mr. Smith: We cannot eliminate these two sub-sections and make any progress.
Amendment put and declared negatived.
An Leas-Cheann Comhairle: Is amendment No. 37 being moved?
Mr. Hughes: Yes.
An Leas-Cheann Comhairle: But the principle of it has already been decided on three previous amendments. Do you want to go over it again?
Mr. Hughes: It is different in this case. I move amendment No. 37:—
To add a new sub-section as follows:—
Whenever it becomes necessary to acquire compulsorily or interfere substantially with any lands or other rights referred to in the next preceding  sub-section, compensation shall be assessed subject to the provisions relating thereto in this Act, before the Commissioners shall exercise such right of entry or interference.
On Section 9, the Parliamentary Secretary assured us that it dealt only with small corrections which would have to be made in the scheme. Here it is even more important because the section states:—
“Whenever in the course of the carrying out of a drainage scheme it becomes necessary, in the opinion of the Commissioners, to acquire compulsorily or interfere substantially with any lands not mentioned in that behalf in the drainage scheme or to acquire, restrict, terminate, or otherwise interfere with compulsorily any easement, fishery, water-right, or other right similarly not mentioned or to divert, remove or otherwise interfere with any road or bridge (whether public or private) similarly not mentioned, the following provisions shall apply and have effect, that is to say:—”
That is very wide. You can interfere with anything. At the end you make a provision that, no matter what substantial interference there may be, you can proceed with the work and the individual can await the pleasure of the commissioners to get compensation fixed. We opposed this in Section 9 which dealt with small matters, but we must be more concerned with this section, because it definitely states that it is substantial interference — that, notwithstanding substantial interference, they will go ahead with the scheme and ignore the individual's rights.
Mr. Cogan: I think the Parliamentary Secretary should have no hesitation in accepting the amendment and adding this sub-section to the Bill. It would have the effect of ensuring that compensation would be paid and, not only that it would be paid, but that it would be paid before any work was undertaken. It brings substantial changes in the scheme into the same position as if those substantial works had been in the original scheme.  Having regard to the fact that the work is to be of a substantial nature and may have a very important bearing on the livelihood of the people directly concerned, I think there can be no objection from any point of view to the acceptance of the amendment.
Mr. Smith: This whole principle has already been decided upon. It is not very likely that this will arise too often, and where it is necessary to amend a scheme, I find it hard to believe that the amendment will be substantial. If it becomes necessary in the course of carrying out a work to amend the scheme, is it seriously suggested that the work must close down until such time as compensation is fixed in all cases? I do not think that that is a feasible proposition and I can hardly believe that those recommending it really believe in it themselves.
Amendment, by leave, withdrawn.
Question proposed: “That Section 12, as amended, stand part of the Bill.”
Mr. Hughes: Paragraph (f) states:—
“every dispute as to the need for any such restitution, restoration, or compensation or as to the nature, extent, or amount thereof shall be decided by an arbitrator nominated by the Minister from the panel of drainage arbitrators whose decision thereon shall be final and conclusive.”
I object to that whole method of selecting the arbitrator.
Mr. Smith: In every place in which it appears we are meeting you on that. You have an amendment down at a later stage.
Mr. Hughes: I have. If there is a dispute between the Minister for Finance and someone else as to the amount of compensation involved, the machinery for providing the arbitrator is that the reference committee will nominate a panel of arbitrators and the Minister is to select from the panel. It is obvious that a party to the issue should not have the privilege of selecting the arbitrator, and I am glad the Parliamentary Secretary is meeting us on that.
Mr. Roddy: There is a period of 14 days allowed to the local authorities to send in their observations to the Commissioners on the amended scheme. Is not the period rather short?
Mr. Smith: After all, the time will be short. It will be very exceptional.
Mr. Roddy: The period of 14 days is very short to enable the secretary of a county council to get in touch with its members and with the people interested in the scheme. Take a big county like County Cork. It would be difficult for the secretary of the Cork County Council to get in touch with all the members of his council and all the people interested in the drainage scheme. If the observations are to be of any value at all, he must of necessity get in touch with the people primarily interested in the carrying out of the work, and I do not see how that can be effectively done in 14 days. I suggest that you make it a month.
Mr. Smith: There is a number of other things to be done. They have to submit the scheme to the Minister. It will take a fairly long time to get the amended scheme approved. You must remember that the work will be in progress. It is not like the preparation of the original scheme. When they are on the spot doing the work it may suddenly arise that an amendment has to be effected and a month would be a long time to have the machinery lying there and the men not able to proceed with the work.
Mr. Roddy: Surely those people have waited for a great many years for this scheme to be carried out and I cannot understand why it is necessary now to rush the members of the county council and the people interested in the scheme to submit observations within a period of 14 days. It may be necessary for these people to consult with the engineers in charge.
Mr. Smith: Surely they will be able to do it in 14 days,
Mr. Roddy: They could not possibly do it.
Mr. Smith: Ah, yes, they could.
Mr. Hughes: It would not hold up your staff very much. It is unlikely they will be held up over the amendment of any scheme. The Parliamentary Secretary talked about 600 miles of drainage on the Brosna. If you were held up on any portion of that scheme because of some necessary alteration, you could switch your staff elsewhere while waiting for the scheme to be amended. Then when it would be amended they could go back to work again on that portion. The local authorities have to get their engineers to examine the proposals. Then they have to submit these proposals to the drainage authority. I suggest it would be impossible to do that in a fortnight and it would be unreasonable to expect it.
Mr. Smith: I do not see anything to prevent them doing it within 14 days. It is not the same as where an elaborate scheme would have to be examined. It would be nothing more than a simple amendment of the scheme.
Mr. Hughes: On the other hand, it might be a substantial interference.
Mr. Smith: It would refer to a particular portion of the scheme and it would not occasion any great trouble to a county surveyor if he wanted to look at a spot on the river. It would not mean a survey of the whole district, as would be the case when the scheme in its original state would be under consideration.
Mr. Roddy: The Parliamentary Secretary has agreed to accept an amendment moved by Deputy Norton to the effect that particulars of the schemes should be published in the local papers as well as exhibited in the offices of the county council concerned. Let us assume that the scheme is issued on a Monday. It will not appear in the local paper until the following Friday and the people who may be interested will not have an opportunity of seeing the particulars of the scheme until Saturday or Sunday.
Mr. Hughes: The scheme might be a day late for the papers.
Mr. Roddy: Yes, it might be a day late for advertising. I suggest that all sorts of difficulties of that kind will arise. It is only reasonable to expect that the people interested in the scheme would have an opportunity of examining it in order to be able to submit observations. If their observations are to be of any value, those people should be given reasonable time to prepare them. The Parliamentary Secretary is not allowing for difficulties and delays in the publication of these schemes. Delay will inevitably occur, particularly when you have to get in touch with people who may reside in remote parts of the country.
Mr. Norton: Is not the Parliamentary Secretary taking the worst case as an example? He is assuming that the commissioners are working on a particular scheme and that it is only on the 14th of the month that they discover the necessity for some amendment of it. Surely they could see the necessity for amending the scheme at least six months previously and they could then say to the local authority: “We are going to amend this scheme: here are our proposals — what do you think of them?” Of course, the whole scheme might be prepared, approved by the Minister, and accepted by the county council and the commissioners before the difficulty which might require amendment would crop up. The difficulty the Parliamentary Secretary talks about will arise when they are right on top of it, as it were. I submit that that is not giving sufficient technical credit to those who are undertaking the scheme. I assume that they would see these difficulties weeks beforehand. I think the period of a fortnight is too short.
Mr. Smith: Section 12 is put into the Bill because it is possible for men to overlook certain things. The section is inserted in order to meet the extreme case, and the 14 days are mentioned in order to meet the extreme case. While I quite agree that in many cases it would happen, as Deputy Norton says, that an engineer will detect imperfections six weeks beforehand, or maybe two or three months beforehand, still cases may arise where  amendment of the scheme will be necessary while the work is in progress. The section is inserted to meet the extreme case. I would prefer to leave the period as short as possible, consistent with the people concerned having sufficient time to examine the position and make the necessary amendments.
Deputies would be amazed to observe the footy things that can arise and that can cause a slowing-up of activities. If you have, as you will have in some schemes, a good deal of heavy machinery and a big staff, and if it should suddenly become necessary to have an amendment of the scheme, it will be desirable to have this provision in order to make the correction in the shortest possible time so as to eliminate the incurring of additional and, perhaps, heavy expenditure. If I thought that this was likely to do an injustice I would be inclined to meet the point, but I do not think it will. I do not want to reduce this section, which is in itself exceptional, to a point where it would not meet the case it is intended to meet.
Mr. Hughes: Perhaps the Parliamentary Secretary will meet the House by making it 21 days?
Mr. Smith: Very well.
Mr. Norton: Will the Parliamentary Secretary look at the last line of paragraph (b) —“shall in every case be 14 days”? The case made for this is that there may be instances in which it will be necessary to have a speedy decision. This assumes that every case will be identical. I suggest to the Parliamentary Secretary that so long as you have a minimum of 21 days it meets the point. This assumes precisely the same difficulty in every case all over the country.
Mr. Smith: We will look into the point.
Question put and agreed to.
Mr. Norton: I move amendment No. 38:—
In sub-section (4) (a), page 11, line  21, to delete the words and brackets “(if any) newspapers” and insert the words “provincial newspapers circulating in the district to which the certificate of completion refers”.
In this case there is no obligation to publish in a newspaper. Perhaps the Parliamentary Secretary will look into this matter as well. Under this section it is sufficient if you publish in Iris Oifigiúil and “in such (if any) newspapers” as the Minister shall think proper. That is presupposing that he may think it improper to publish in any newspaper.
Mr. Smith: I will consider the point between now and the Report Stage. I hate to make statutory provision for a thing like this. Consider the position if you stipulate local papers. Suppose you overlook the insertion of the scheme in one paper, consider what effects such an oversight might have. As I have indicated, I hate to make statutory provision for this inasmuch as in the odd case something might happen that would create a very awkward situation when nobody wants to do that.
Mr. Norton: The Parliamentary Secretary is most uncomplimentary to his own Department and to himself. When a certificate of total or partial completion is available for issue, somebody will look up Section 13 of this Act, get down to sub-section (4) (a) and say what are we going to do about this? They will say: “Let it be published, in Iris Oifigiúil in any case, and if this section is amended, in a local paper”.
Mr. Smith: What is a local paper?
Mr. Norton: The Parliamentary Secretary is supposing that this person cannot keep two ideas in his mind. He has to get two copies of this certificate, one sent to the Stationery Office and the other to the editor of a local paper.
Mr. Smith: What is a local paper?
Mr. Norton: The Parliamentary Secretary is unable to trust him with 50 per cent. of that operation.
Mr. Smith: How many local papers might circulate there? Look at the  difficulty you are creating. An editor who might have no substantial circulation in that particular district at all might contend that, because a dozen people bought his paper, it had a circulation in the area. Where is the margin to be fixed? I can assure Deputy Norton that before I agree to cover this thing I must see to it that whatever cover I am giving it will not be such a cover as will enable any person at a later stage to make trouble for us.
Mr. Norton: We are not interested in local papers at all. All we are concerned with is that this Section 13 (4) provides that this certificate shall be published in Iris Oifigiúil and in such (if any) newspapers as the Minister shall think proper. Sub-section (4) (b) goes on to say:—
“any person may, within one month after the date of the publication of the said notice in the Iris Oifigiúil, send to the Minister an objection in writing”.
Suppose the Minister does not publish the certificate in a local paper, then any local person who is interested in this matter is expected to have seen Iris Oifigiúil and send to the Minister his objections in writing. Does the Parliamentary Secretary seriously think that folk in this country have nothing else to do but read Iris Oifigiúil? How are they going to know that a certificate has been issued if it is published only in Iris Oifigiúil? Must you not give them notice of the fact that the certificate has been issued? Can the Parliamentary Secretary say how many copies of Iris Oifigiúil are read in County Cavan? I imagine they would all fit in his small pocket. If sub-section (4) (b) stands a person is supposed to see the thing in Iris Oifigiúil, and then lodge an objection —an objection based on a publication in a paper that some of those folk who are now receiving old age pensions have never seen in their lives yet. I put it to the Parliamentary Secretary that that does not make sense. He ought to examine the matter, and at least give the local people an opportunity  of knowing that a certificate has been issued, and an opportunity to submit their objections.
Mr. Smith: I have no objection to doing that at all, but Deputy Norton is not so foolish as not to know that in addition to the main weekly paper circulating in a particular county there might be half a dozen others which would have a limited circulation, some of them indeed a very limited circulation. Suppose we accept this term “local paper,” and suppose this notice is conveyed by advertisement in that local paper to the people concerned, and suppose at a later stage some man comes along and says: “According to this section, you are supposed to publish it in the local papers. I do not read that particular paper. Here is a paper—the Fermanagh Observer, or the Leitrim Observer, or the Roscommon Herald, or the Sligo Champion—that I read.” I am quite prepared to see that a publication in Iris Oifigiúil is not a satisfactory means by which to convey to the people concerned that particular type of information, but, in giving an assurance that I will try to get an amendment which will cover the point, I will not, I hope, have an amendment here that will enable anyone to come along and take proceedings because of our failure to publish the information in the particular paper he might chance to read.
Mr. Cosgrave: Suppose you say “a paper circulating in the locality”?
Mr. Smith: We will try to get over it in some way.
Mr. Roddy: The Parliamentary Secretary can avoid the possibility of trouble arising by saying in the Bill that the certificate shall be published in Iris Oifigiúil and one local paper, and if he wants to select the local paper on the basis of its circulation he can find out the circulation from the association.
Mr. Smith: I do not want to be taken as saying that we will only publish it in a particular paper because of the circulation that paper has, but  Deputies will realise that a paper which might sell only a dozen copies in the area would be entitled to contend that it had a circulation there.
Mr. Norton: There will be no discrimination, I take it, against Mr. Keane of Kilkenny? I will withdraw the amendment only on the understanding that the Parliamentary Secretary will examine the matter.
Mr. Smith: Of course I will.
Amendment, by leave, withdrawn.
Amendment No. 39 not moved.
Mr. Bennett: I move amendment No. 40:—
Before sub-section (5) to insert a new sub-section as follows:—
Where an objection to the issue of a certificate of completion has been sent to the Minister the said certificate shall not be issued without the assent of the Minister for Local Government and Public Health.
I said already, when speaking on another section, that one of the things which I regretted in regard to this Bill was the absence of a closer link between the local bodies and the commissioners. In one portion of the Bill I think there is provision that the local bodies would be asked to make observations, but there is no provision for the consideration of their observations. The one thing in regard to which anybody might foresee an objection is in regard to the issue of the certificate of completion. Occasionally, anyhow, there is bound to be some controversy about it. The Minister for Local Government, whether by accident or design, appears to me to have been left out of this Bill except in the section we were discussing a moment ago in regard to matters that are purely local government matters, such as the construction of bridges and so on, The Minister for Local Government is in closer contact with the local bodies than any other Minister. They look to the Minister for Local Government for guidance in any quandary they are in, and the inclusion of this amendment would create a certain amount of  satisfaction amongst local people that the Minister directly responsible for the collection of the rates of the county, and indeed for the welfare of local bodies generally, will, at any rate, have a say in the issue of the certificate of completion of any drainage works carried out under this Bill. I cannot foresee what objection there will be to this amendment. I assume that it will have the support of Deputy Allen, because a moment ago he interjected that he would rather see the Minister for Local Government as arbitrator than any judge or anyone else.
Mr. Allen: The Deputy is getting very fond of him now.
Mr. Bennett: While perhaps I might like to see some stronger advocate than the Minister for Local Government, still it will meet us in some way if the assent of the Minister for Local Government is necessary before a certificate of completion is issued under any scheme. As the Bill stands, there would be a certain fear in the minds of local bodies and local ratepayers that their interests were not being looked after by any body in which they had complete confidence. I expect that they have a certain amount of confidence in their local bodies—county councils, managers and county surveyors—and these bodies come under the control of the Minister for Local Government and Public Health. To my mind, there could be no objection to the inclusion of that Minister as an agreeing party to any certificate of completion. If there is not some such safeguard as that in the Bill, there will be a certain amount of doubt in the minds of the people as to whether the work has been done satisfactorily or not.
Mr. Smith: A certificate of completion must issue.
Mr. Bennett: I know it must.
Mr. Smith: Partial or otherwise. The people who issue that certificate of completion must be the people who have carried out the scheme. While  consultation is provided for and must take place where matters are in doubt or in dispute, what the Deputy seeks to do here is to ensure that the authority responsible for the scheme and responsible for issuing the certificate of completion, with the approval of the Minister for Finance, can be prevented from issuing that certificate unless it has the consent of the Minister for Local Government and Public Health. I do not think that that is reasonable.
Mr. Hughes: Regarding the certificate of completion, I cannot agree that the people who do the work are the right people to certify it. It is a new idea—that a man might certify his own work and that there should be no question about it. That is the idea running through this measure. However, I am not prepared to propose an alternative. What particular qualifications has the Minister for Finance to certify the work carried out by the commissioners, as to whether it is properly or improperly completed? Would the Parliamentary Secretary tell the House that? It strikes me that this certificate of completion is merely humbug, as we are simply to be told that it has been certified by the commissioners and that is to be the end of it. Who will issue it? Even in regard to the suggestion by Deputy Bennett, if the Minister for Local Government is asked to join in the certificate he would probably ask the local body or the local engineers if they were satisfied or if they had any complaints to make about it. I am not saying that that is the ideal way, but it strikes me as extraordinary that the Minister for Finance should be asked to certify the completion of the work carried out by his own Department. Generally, in the case of any work done by any contractor carrying out a contract job, the certifying of the work certainly does not rest with the man who is head of the firm; it is examined by someone else and that other person is asked to certify it.
Mr. Norton: It is usually certified by the other person's architect.
Mr. Hughes: Yes.
Mr. Smith: Who is paying for it in that case?
Mr. Hughes: In this case, we are asking the head of the firm to certify the job and we are to be satisfied with his certificate.
Mr. Smith: The Minister for Finance is putting up the money to pay for this.
Mr. Norton: Where is he getting it?
Mr. Smith: It is admitted that there must be finality and that the scheme must be completed. A certificate of completion must be issued in order to determine the point at which it is handed over for maintenance. Who is going to do that?
Mr. Hughes: Let the Parliamentary Secretary tell us. We are putting the question.
Mr. Smith: I am telling the Deputy that the Minister for Finance is paying for it. The drainage authority is responsible for the preparation and execution of the work, and the drainage authority alone can say that a scheme is completed. They give time, in which the individual and the local authority may make representations, if they are not satisfied, and there is provision for consultation between the Ministers concerned. The drainage authority hears what the Minister has to say, as to his objection to the issue of the certificate of completion, and they also consider any objections raised by individuals. They examine all these and, if necessary, meet the objections in any way they can. Otherwise, they say there is nothing in the objections and they merely proceed to issue the certificate of completion. I do not think one can provide any other machinery than that.
Mr. Hughes: I would ask the Parliamentary Secretary just two questions. What particular qualifications has the Minister for Finance that empower him to certify the work carried out by the drainage authority? Secondly, who are the people who will advise the Minister  for Finance that the work has been effectively and efficiently carried out, before he certifies it? Obviously, he must have advice: is that advice to come from the people who carried out the work?
Mr. Smith: Naturally.
Mr. Hughes: They are to be the judges of their own work?
Mr. Smith: There is no analogy where the Deputy attempts to make one. In this case, the Minister for Finance is paying for the work.
Mr. Hughes: The taxpayers.
Mr. Smith: Well, the taxpayers are paying. I am not interpreting it in the narrow sense.
Mr. Hughes: Surely they have a right in the matter.
Mr. Smith: The authority to execute the work is being set up by this House under these proposals.
Mr. Allen: I would like the Parliamentary Secretary to consider one aspect of this question. We do not doubt the competency of the Minister for Finance to certify that it is done, as he will be advised by his officers that the work is completed.
Mr. Hughes: They are the people who did the job.
Mr. Allen: Flowing from that certificate, there will be responsibility on the local authority to maintain that work. There is no provision in this section to provide for consultation with the Minister for Local Government.
Mr. Smith: There is.
Mr. Allen: No.
Mr. Smith: The principle of consultation is already accepted.
Mr. Allen: It is an important point. I raise the question, and would like the Parliamentary Secretary to look into it again. There is consultation with the Minister for Local Government when the scheme is being  prepared and before the work commences, but when the work has been completed and the certificate is about to be issued it is then that the local authority has to assume responsibility. It could easily happen that a local county engineer, competent to judge the effectiveness of the work, may not be satisfied that the work will be wholly effective, yet his council and his ratepayers will have to assume the responsibility.
As the Parliamentary Secretary is aware, cases have occurred in the past where certificates have been issued by the Commissioners of Public Works that a particular drainage area was completed under the 1924 Act or previous Acts, but it was found afterwards that the work had not been completed and it was necessary to spend a lot more money on it. I would ask the Parliamentary Secretary to consider the matter between this and the Report Stage, to see that the local authority will have the right to make representations to the Minister for Local Government.
Mr. Smith: So they have.
Mr. Allen: It is not provided in this section.
Mr. Smith: Everybody has the right to make objections when notice is given of the intention to issue the certificate.
Mr. Allen: There is nothing final about sub-section (4) (c). There is something lacking.
Mr. Smith: It says that the Minister shall consider every objection sent to him.
Mr. Hughes: And that he shall take such steps as he thinks proper.
Mr. Bennett: He can do what he likes; he may tear up the objection and put it in the waste-paper basket.
Mr. Allen: I want to stress that from this certificate will flow the responsibility of the local authority. They immediately become liable, as a result of the certificate. It is, therefore,  important that their Minister should be satisfied that the work was completed from their point of view.
Mr. Bennett: Deputy Allen has argued as I was about to argue. It does not end when the drainage scheme is finished. The legal liability does not end there. Perhaps their biggest liability will commence then, as they will be responsible for the maintenance of the completed scheme. Therefore, the manner in which a scheme is completed, whether efficiently or not, will concern them very vitally. It is a matter on which, as the Parliamentary Secretary knows, there has been controversy before and on which there will be controversy again. The Minister to whom the local bodies naturally look as their hope in this particular function is the Minister for Local Government and, whether by design or not, he has been left almost completely out of this Bill. The Minister for Local Government was omitted from Section 7. In Section 7, which deals with the confirmation of drainage schemes, it was provided that the commissioners should consult with the Minister for Industry and Commerce, the Minister for Agriculture “and such other Minister of State as they shall think proper”. The Minister for Local Government was not regarded as a Minister whom it would be advisable to consult in connection with alterations in a drainage scheme. The Parliamentary Secretary consented to insert the name of the Minister for Local Government in that section. I think it is advisable that the Minister for Local Government should also be brought in before the certificate of completion is issued. As Deputy Allen so forcibly said, there will be much expenditure by county councils when the schemes are completed. Ratepayers of the different counties will be heavily mulcted. They will, naturally, look to their county councils to see that the schemes are satisfactorily completed. Unless they have the assurance of county surveyors and, through them, of the Minister for Local Government, that the schemes are satisfactorily completed, there will be trouble for the commissioners and  everybody else. To avoid that, the assent of the Minister for Local Government should be obtained before the certificate of completion is completed. The Minister will not refuse his assent on any trivial account. I cannot envisage any ordinary case in which he would refuse his assent.
Mr. Hughes: The Parliamentary Secretary used the Minister for Local Government in Section 11 to decide disputes between the commissioners and the local authority. The Parliamentary Secretary has argued that the Minister for Local Government has a fatherly interest in the local authorities. Here the interest of the local authorities is at stake because, as Deputy Allen rightly pointed out, theirs will be the responsibility for maintenance. The Minister for Local Government should be given authority in this matter and the local authorities should be entitled to make representations to him.
Mr. Smith: That can be done under sub-section (4) (b).
Mr. Hughes: “Any person”. Will the Minister for Local Government be satisfied to come in under that phrase?
Mr. Smith: The local authority will.
Mr. Hughes: The Minister for Local Government may say that he is not mentioned in the section at all. Bear in mind paragraph (c) which states that the Minister for Finance shall consider every objection sent to him and shall take such steps in regard there to as he thinks proper. I question the Minister's qualification to take decisions on engineering jobs. The Minister for Local Government has an engineering staff and he will also have the help of the local authority staffs. I think that the amendment is very reasonable and that it is very wise, from the point of view of the local authority, to secure that the work will have been efficiently and effectively carried out. There will be nobody to advise the Minister for Finance save the people who carried out the work and, obviously, those people will not be the best judges of their own work.  Another authority should be brought in before the Minister certifies because, once the certificate issues, that is the end of the matter.
Mr. Bennett: I do not understand why the Parliamentary Secretary should have any objection to accepting the amendment. The Minister to whom the local bodies look is the Minister for Local Government. As this Bill was introduced, the Minister for Local Government could have said to any county council which appealed to him in this matter that he had no function whatever and that they should appeal to the Minister for Finance. The ratepayers will look to the county councils to guard their interests and the county councils will look to the Minister for Local Government. I want the Parliamentary Secretary to put the Minister for Local Government in the place in which he ought to be. That is the purpose of my amendment.
Mr. Smith: There is no necessity for this amendment. Sub-section (4) (b) provides that any person—which phrase includes a local authority—may, within a month after publication of notice, send to the Minister an objection in writing to the issue of the certificate of completion. Why, then, bring in the name of the Minister for Local Government, not knowing that the local authorities affected will have any objection to the issue of the certificate? Is it not natural that, if the local authority raises an objection to the issue of the certificate, consultation will take place between the Minister for Finance and the Minister for Local Government?
Mr. Coogan: It is only in cases where an objection has been preferred that we ask that the Minister be brought in. The point has been made by Deputy Allen and other speakers that the local authorities have an interest in this matter, as the maintenance cost will be imposed upon them. In the event of an objection, it is only reasonable that the Minister for Local Government and the local authorities should have their say.
Mr. Smith: That the Minister for Local Government should have the right to impede as long as he desired the issue of the certificate of completion?
Mr. Hughes: I can see the point of the Parliamentary Secretary. An objection by an ordinary individual might be unreasonable but would the Parliamentary Secretary consider the amendment in relation to an objection from a local authority?
Mr. Smith: As I say, if the local authority objects there would be consultation but otherwise there would be no necessity for it to my mind. If the Deputy presses the amendment, I shall consider the matter between now and the Report Stage. We shall consider making provision for consultation in the event of an objection by a local authority.
An Ceann Comhairle: Is the amendment withdrawn?
Mr. Bennett: I am not satisfied to withdraw the amendment if the Parliamentary Secretary merely agrees to make some provision for a consultation. I want something that the ratepayers and local bodies can look to as some sort of safeguard of their interests. I do not think I am asking too much in asking that the commissioners should seek the assent of the Minister for Local Government. It is not going to be lightly refused in any case. If the Parliamentary Secretary will consider meeting me in effect——
Mr. Smith: I certainly shall not agree to the insertion of any amendment which would provide for the receipt of the assent of the Minister for Local Government before a certificate of completion can issue. What I am prepared to consider is, in the event of a local authority raising an objection, as they are entitled to do under sub-section (4) (b), to mention specifically the Minister for Local Government. I am prepared to mention the fact that he would be consulted in the event of such an objection being raised.
Mr. Allen: I think that would be quite enough.
Mr. Smith: I am afraid Deputy Bennett has a Mulcair complex.
Amendment, by leave, withdrawn.
Section 13 agreed to.
Mr. Smith: I move amendment No. 41:—
In sub-section (1), page 11, line 59, to insert the word “navigationrights” before the words “and other”.
Amendment agreed to.
Mr. Smith: I move amendment No. 42:—
In sub-section (1), page 11, line 60, after the word “acquired” to add the words “save that it shall not be obligatory on the Commissioners—
(a) to acquire compulsorily any land, easement, fishery, water-right, navigation-right, or other right proposed in such drainage scheme to be so acquired in respect of which it appears to the Commissioners, in the course of carrying out such drainage scheme, that the acquisition of such land, easement, fishery, water-right, navigation-right, or other right is not necessary for the purpose of such carrying out, or
(b) to make any interference with any land, easement, fishery, water-right, navigation-right, or other right or any road or bridge proposed in such drainage scheme to be compulsorily made in respect of which it appears to the Commissioners, in the course of carrying out such drainage scheme, that such interference is not necessary for the purpose of such carrying out.”
This amendment has the effect of transferring certain wording from Section 9 (2) to this section.
Amendment agreed to.
Mr. Smith: I move amendment No. 43:—
In sub-section (2), page 12, line 2, to insert the word “navigation-rights” before the words “and other”.
Amendment agreed to.
An Ceann Comhairle: The next amendment, amendment No. 44, governs a whole series of amendments —Nos. 47, 51, 56, 90, 96 and 128.
Mr. Hughes: I move amendment No. 44:—
In sub-section (2), to delete all words from the word “with” in line 9 to the end of the sub-section.
The Parliamentary Secretary has met us in deleting that part of the Bill in which he attempted to depart from the principal Act, the Acquisition of Land (Assessment of Compensation) Act, 1919, and in which he proposed to pick his men out of the panel. I made the objection that one of the parties to the dispute should have the choice of the arbitrator, as the arbitrator could be disraissed if he did not make a favourable assessment from the Minister's point of view. However, the Parliamentary Secretary has met us on that point and he is leaving it to the reference committee to nominate the arbitrator. In addition to that, I feel that the individual concerned ought to have the right to appeal to the High Court. In defending an appeal to the High Court, I want to say that there is no danger of anything being brought to the High Court except a really serious matter is involved, a matter where the individual is convinced that an injustice is being done by the arbitrator, because if he fails in his appeal he is going to be mulcted in heavy costs. He, therefore, will not bring a frivolous case to the High Court.
Again when we talk about providing safeguards for the individual, this is a type of safeguard that is absolutely essential. It may be a matter of compensation for millers rights; it may be that a millrace is lowered with a consequent considerable diminution of  power. In that case it would be a question of compensating the individual for the loss of a means of livelihood which might be a very profitable means of livelihood and the arbitrator might not fully appreciate the extent of the loss. In a case of that kind, where the individual feels that he has a grievance because the amount fixed by the arbitrator is not reasonable, I think we should provide the right of appeal to the High Court. We must ensure that the individual is amply protected and that he is satisfied that justice is done in every case. There is also an amendment to delete sub-section (5), which says:—
“No action shall lie at law or in equity against the Minister or the commissioners or any officer, agent, or servant of the Minister or the commissioners in respect of any act, matter, or thing in respect of which compensation is payable by virtue of this section or either of the two next following sections.”
Now that the Parliamentary Secretary has met us by eliminating the Minister so far as picking the arbitrator is concerned, the only matter at issue is whether we are going to provide a right of appeal to the court. We think that the provision of such a right is essential.
Mr. Smith: I never heard of a right of appeal once arbitration was accepted as the basis upon which the matter is to be determined. I thought that the acceptance of the principle of arbitration made the decision of the arbitrator absolutely complete and final and that there was no appeal from that arbitration. Is that not the essence of arbitration — that the decision arrived at shall be final? I am sorry I cannot accept these amendments. I have gone as far as I can but the amendments proposed here would effect an amendment of Section 6 of the Acquisition of Land (Assessment of Compensation) Act, 1919. The procedure we propose for dealing with compensation is the procedure followed in most other similar Acts, the structure on which other Acts rest.
Mr. Hughes: I would be in agreement with the Parliamentary Secretary as to the conclusive nature of arbitration proceedings if both parties to the dispute were in agreement on the question of arbitration, but here you are compelling one party to submit to arbitration. You enter on his land compulsorily and he applies for compensation and you say that the question must be submitted to arbitration. It may be that another interest is concerned— fishery rights or obstruction. You acquire these rights compulsorily. It is not right for the Parliamentary Secretary to say that he never heard of any appeal from arbitration. Strictly speaking, of course, this is not arbitration, because you are forcing the arbitration on a man who has no free will or choice in the matter.
Mr. Smith: Neither has the other party any choice.
Mr. Hughes: Oh, no, that is not correct.
Mr. Smith: There are two parties here, and the arbitrator is appointed by the Reference Committee to decide between them. If injustice is done— and that is possible, no matter to what court you appeal—an arbitrator is here appointed by the Reference Committee to decide between the authority and the individual whose rights are being interfered with. Accordingly, I do not think it is right to say that the rights of the individual are being interfered with more than the rights of the other party to the case. My experience has been—and I think that Deputy Hughes will have had the same experience— that in all these cases of arbitration, under this machinery, the tendency has always been — or at least I think it has always been—to load the dice very heavily in favour of the individual. In view of that, I do not think there is any reason to fear that any injustice will accrue to anybody as a result of this.
Mr. Hughes: But under this we are giving to one party the power to compulsorily acquire, and in the other case you are compelling the individual to give away or cede his property.  Accordingly, I think it is hardly a fair analogy to draw between the position of both of these parties, one the Minister, and the other, the individual concerned: one, where the drainage authority has power to acquire, and the other case where you compel the individual to give up his property.
Mr. Smith: Well, you must compel him in certain circumstances.
Mr. Hughes: Yes, I know that, and I would agree that it is only in a few cases that you would have to refer to the High Court, but that is why I want this provision in.
Mr. Smith: Yes, but the procedure is laid down under Section 6 of the Acquisition of Land (Assessment of Compensation) Act.
Mr. Hughes: But that is a different matter, because that Act merely deals with the acquisition of land. Here you are going to have a variety of other things to be considered also.
Mr. Smith: If we had insisted on the right of the Minister to select the arbitrator I could have some sympathy with the case the Deputy is making now, but we have conceded the point that the reference committee is to appoint the arbitrator and, after all, the arbitrator has no interest in anything except to see that justice is done and that there should be fair play all round. After all, the arbitrator has no power except to assess. Besides that, he will be a man qualified to assess the amount of damage or injury that has been done to the individual concerned, and I think that everything that one might want in that way has been provided for.
Mr. Hughes: Might I point out to the Parliamentary Secretary that we have had experience recently of an arbitrator who was appointed to arbitrate on the water main coming into the city? One arbitrator was appointed to do the job, but his awards were not acceptable and he simply was let go, and another man was put on the job whose awards were  very much lower than those of the first man. I am speaking from experience, and I am sure that the Parliamentary Secretary is aware of the case.
Mr. Smith: Well, of course, you will always have that. You will always have differences of opinion.
Mr. Hughes: But that is the point.
Mr. Smith: You would have that even in the case of two judges of the High Court. It is the very same thing.
Mr. Hughes: Well, we must assume that you would get justice in the courts. I am sure that the Parliamentary Secretary would not question that.
Mr. Smith: No, but what I am saying is this: that as to the value that is to be placed upon property, or the amount of compensation to be assessed for injury or damage to property, any two men may have a different view. That applies to the High Court as well as to any other body, and when I say that, I do not mean any reflection on the High Court or on those who preside there.
Mr. Hughes: Will the Parliamentary Secretary tell us this: who first requests the arbitrator from the Reference Committee?
Mr. Smith: Surely, we have to get an arbitrator?
Mr. Hughes: Well, if we are to get our minds clear on this, let us follow up the procedure and find out who is going to get the arbitrator from the reference committee.
Mr. Smith: The authority responsible.
Mr. Hughes: Who is that?
Mr. Smith: The drainage authority.
Mr. Hughes: Which is already a party to the case. Now, this kind of thing has occurred previously, and I want to see that it will not occur  again. If this safeguard is put into the Bill, it will not occur again. I am pressing the Parliamentary Secretary to put in this safeguard so as to ensure that the people will get justice in every case. You have made provision that the appointment of an arbitrator is to be a temporary appointment, but under the old legislation I understand that it was a permanent office.
Mr. Smith: We shall give a reason for that when we come to it.
Mr. Hughes: Well, I will give a reason to the reverse, and this is one of the reasons.
Mr. Smith: The Acquisition of Land (Assessment of Compensation) Act laid down the whole machinery for settling questions of compensation.
Mr. Hughes: Yes, I understand that, and I read the relevant section.
Mr. Smith: Then, where is the use in our trying here to discuss this?
Mr. Hughes: Well, when the Parliamentary Secretary is talking about that——
Mr. Allen: Perhaps I might be permitted to intervene for a moment. I think that Deputy Hughes's amendment is unreasonable. He, like other Deputies, has had experience of arbitrators in connection with the acquisition of land, and in connection with water rights, building sites, sewerage schemes and so on, under various local authorities, and I am sure he will agree that the arbitrator, in cases where there was a grievance, was liberal in every case. I never yet heard a case of a man complaining of not getting fair play from the arbitrator where his land was being acquired, and I suppose that the same thing will apply here. After all, these men are trained to hear and examine technical and expert evidence, and they give their awards as a result of hearing such evidence, and I think that no local authority has yet had a grievance as a result of an arbitrator's award. For that reason, I think that Deputy Hughes is unreasonable in suggesting that there is a  necessity in this case for something other than the arbitrator's award.
Mr. Hughes: I have mentioned my experience of the pipe line coming into the city.
Mr. Allen: Take the case of a local authority. They first proceed to ask for an Order to acquire land compulsorily. They get that from the Minister, and they first ask for an arbitrator to fix the amount to be assessed as compensation. The local authority gets an Order, and then it is a matter for the arbitrator to fix the price or the amount of compensation. The very same principle applies here, and I do not think that there is any danger that people whose rights are interfered with as a result of drainage will not get reasonable compensation under this Bill.
Mr. Cosgrave: While what Deputy Allen says is usually true, I know of one particular case where a large number of landowners were definitely dissatisfied. I am referring to the Poulaphouca water scheme. That, probably, affects Deputy Hughes's district also, but at any rate it affects my area. The arbitrator there was changed, but even after the change, and when opportunities were given to the aggrieved parties to lay their case before the authorities, in the case of the local authority, there is still grave dissatisfaction with the result. In view of that I would urge on the Parliamentary Secretary to consider this matter. In the case I speak of, a very large area of land was disturbed. Certain people were dispossessed and given other farms or compensation, but even so there was a large measure of disagreement in view of the way it was done.
Mr. Roddy: The Parliamentary Secretary, seemingly, is adhering to the old machinery of the Drainage Acts. This Bill is a compilation of sections from existing Drainage Acts. After all, the old Drainage Acts were designed to deal with sectional areas of the country. In this Bill we are dealing with a national scheme, and the question is whether the machinery  that was suitable for local schemes is suitable for one of a national character. This Bill affects a number of interests. The schemes under it will impinge on the biggest asset that we have — the land. They will also affect turbary, milling, fishing and sporting rights. While I agree that, perhaps, it is unusual in the case of arbitration to give the right to appeal to a higher court, nevertheless in view of the large and important interests involved and the anxiety felt by the large number of people who will be affected by this Bill when it becomes an Act, I think it would be advisable to put in as many safeguards as possible to ensure the smooth working of the measure and thereby secure the co-operation of all the people. I do not see how there can be any objection in principle to this right of appeal to an aggrieved individual. After all, arbitrators are human. I admit with the Parliamentary Secretary that judges also are human. Arbitrators are human, and, of course, are influenced by many considerations. I know, for example, that the people in the Owenmore drainage area when assessed for rates felt aggrieved with the arbitrator's award and considered that justice had not been meted out to them. They felt very much aggrieved, indeed, when they discovered that there was no right of appeal from the arbitrator's award. The same thing will happen when schemes are carried out under this measure. I suggest to the Parliamentary Secretary that in this Bill people should be given the right of appeal to a higher court if they feel that they have been unjustly dealt with. Deputy Hughes has mentioned that milling, which is a very important industry, may be affected by schemes under this Bill. It is surely of the highest importance that vital industries, if adversely affected, should be adequately compensated. In view of the experience which Deputy Cosgrave has quoted, it would, I think, be in the interests of the commissioners themselves that the right of appeal should be given.
Mr. Hughes: Why I am so strong on  the right of appeal is that the arbitrator is going to be a part-time officer. If he held a full-time appointment one could expect more impartial decisions. If we are going to be active in regard to national drainage, there will be a considerable amount of work to be done under this measure. If the work of the man selected as arbitrator for one scheme is found not to be satisfactory, one may assume that a different man will be selected for later schemes. If the arbitrator were a permanent official the position would be quite different. He could act in a more independent way. No man is going to be foolish enough to bring an appeal to the High Court, and incur the risk of being mulcted in costs, if he is not satisfied that he has a good case. The right of appeal will ensure that the arbitrator will do his work more efficiently. I would say that the putting in of this safeguard will not mean that a big number of appeals will be taken. I would venture to say that 99 times out of 100 the arbitrator's decision will be accepted as final, and there will be no appeal.
Mr. Smith: I cannot accept the amendment. As regards the case quoted by Deputy Cosgrave, one, of course, can quite understand the feelings of people when they are disturbed from their homes and farms.
Mr. Cosgrave: They were not disturbed in all cases.
Mr. Smith: Normally, at any rate, if a man is disturbed from his holding he will not be satisfied with the compensation he gets. He would like to have the right of appeal not only to a second court but, perhaps, to a third. Normally, it is not hard to appreciate feelings of that sort.
Mr. Cosgrave: People may like to be able to do that under this Bill, too.
Mr. Smith: It is hardly likely.
Amendment put and declared negatived.
Mr. Hughes: I move amendment No. 45:—
 Before sub-section (3) to insert a new sub-section as follows:—
Notwithstanding anything contained in the aforementioned Acquisition of Land (Assessment of  Compensation) Act, 1919, an appeal shall lie to the High Court from the decision of the arbitrator in any matters heard by him.
The Committee divided: Tá, 24; Níl, 49.
|Bennett, George C.
Burke, Patrick (Clare).
Dockrell, Henry M.
Dockrell, Maurice E.
Doyle, Peadar S.
Halliden, Patrick J.
Larkin, James (Junior).
McFadden, Michael Og.
O'Donnell, William F.
Redmond, Bridget M.
Burke, Patrick (Co. Dublin).
Crowley, Fred H.
Fogarty, Patrick J.
Gorry, Patrick J.
Little, Patrick J.
Lydon, Michael F.
O Briain, Donnchadh.
O Ceallaigh, Seán T.
O Cléirigh, Mícheál.
O'Loghlen, Peter J.
Ruttledge, Patrick J.
Ryan, Mary B.
Skinner, Leo B.
Tellers:—Tá: Deputies Doyle and Bennett; Níl: Deputies Kissane and Donnchadh O Briain.
Amendment declared negatived.
Mr. Smith: I move amendment No. 46:—
In sub-section (3), page 12, line 16, to insert the word “navigation-right” before the words “or other”.
Amendment agreed to.
Amendments Nos. 47 and 48 not moved.
Mr. Hughes: I move amendment No. 49:—
At the end of the section to add a new sub-section as follows:—
Notwithstanding anything contained in the Acquisition of Land (Assessment of Compensation) Act, 1919, the number of expert witnesses that may be produced by an applicant for compensation at the hearing before an arbitrator shall not be limited.
Under the rules laid down for arbitrators in the Acquisition of Land (Assessment of Compensation) Act, 1919, it is provided that only one technical witness can be heard on behalf of an applicant for compensation but in a mineral claim two  witnesses are allowed. I can understand having one expert in the case of land, but here we will be dealing with fisheries, milling and water rights where it may be necessary to have expert witnesses to assess loss of power or output in the case of a mill. When the Act of 1919 was passed it did not envisage milling and other rights being dealt with.
Mr. Smith: I do not think there is anything in that point. Section 3 of the Acquisition of Land (Assessment of Compensation) Act 1919 lays down the procedure before official arbitrators. It is as follows:—
“...not more than one expert witness on either side shall be heard unless the official arbitrator otherwise directs. Provided that where the claim includes a claim for compensation in respect of minerals, or disturbance of business, as well as in respect of land, one additional expert witness on either side on the value of the minerals, or, as the case may be, on the damage suffered by reason of the disturbance may be allowed.”
I think that is satisfactory.
Mr. Roddy: Is it intended to follow that rule?
Mr. Smith: The arbitrator will.
Mr. Hughes: Limited only to lands. If the arbitrator does not so direct, the applicant has no right to produce more than one expert witness, except in the case of mineral rights.
Mr. Smith: It is provided that where the claim includes a claim for compensation in respect of minerals, or disturbance of business, as well as in respect of land, one additional expert witness on either side on the value of the mineral, or, as the case may be, on the damage suffered by reason of the disturbance may be allowed.
Mr. Hughes: With the consent of the arbitrator?
Mr. Smith: With or without his consent.
Mr. Hughes: Are you sure of that?
Mr. Smith: Yes.
Amendment, by leave, withdrawn.
Question proposed: “That Section 14, as amended, stand part of the Bill.”
Mr. Hughes: Sub-section (4) states that Sections 69 to 83 of the Lands Clauses Consolidation Act, 1845, shall apply to the compensation payable by the commissioners under this section, and for the purposes of such application the commissioners shall be deemed to be the promoters of the scheme. There seems to be some discrepancy between the sections in the Act of 1845 and this section. Section 66 of the Act of 1845 provides for arbitration by a jury or a surveyor appointed by two justices. Why bring in a section that does not apply?
Mr. Smith: I will look into the matter.
Question put and agreed to.
Mr. Smith: I move amendment No. 50:—
In sub-section (1), page 12, line 41, to insert the word “navigationright” before the words “or other”.
Amendment agreed to.
Amendments Nos. 51 and 52 not moved.
Mr. Smith: I move amendment No. 53:—
In sub-section (2), to add at the end of the sub-section, line 52, the words “and conclusive”.
Amendment agreed to.
Section 15, as amended, agreed to.
Amendment No. 54 not moved.
Mr. Hughes: I move amendment No. 55:—
In sub-section (2), line 4, to delete the words “one year” and substitute therefor the words “three years”.
This section deals with compensation for injury done to canals and fisheries  and claims must be in within a year. I envisage a situation when there might be a dry season for three or four years and fisheries might be affected if a claim had to be in within a year.
Mr. Smith: We allow ten years for fisheries.
Mr. Hughes: And in any other case?
Mr. Smith: One year.
Mr. Hughes: One year might not be sufficient in the case of a mill.
Mr. Smith: It is necessary to look at Sections 14, 15 and 16 together. Section 14 deals with the acquisition of and compensation for lands, rights etc. scheduled in a scheme. Section 15 deals with compensation for certain interferences with non-scheduled land, and Section 16 with compensation for injuries to canals, fisheries, etc.
Mr. Hughes: If the water level of a canal is lowered the result of drainage might not show up in one year. Why is ten years mentioned in the case of fisheries?
Mr. Smith: I do not profess to know anything about fisheries, but the experts say that it will take a long period before any estimate could be formed as to the amount of damage or otherwise done to fisheries by the execution of drainage works. That is much more than in relation to any other injury that might be occasioned as a result of such activities. We thought we were being fair to all concerned by giving ten years in the case of fisheries and one year in any other case.
Mr. Hughes: I think the period set out in my amendment is really too short. Take the case of a canal. The first year after the work has been completed may be a wet year and there may be a fair amount of water in the canal. There may not appear to be any great damage, but in two or three years' time there may be a dry season and the level of the water may fall very low.
Mr. Smith: If I thought the period was too short, I would be prepared to extend it.
Mr. Hughes: I have no particular interest in it, but I think one year is not sufficient within which to establish a claim.
Mr. Smith: We can consider it, but I do not think it is too short.
Mr. Hughes: Is it not reasonable to suggest that a dry season might come in three or four years' time which might very seriously affect the water level in the canal? I submit that one year is too short and even the period of three years is too short.
Mr. Smith: I should not like to say that I will meet the Deputy's amendment to that extent, or indeed to any extent, but I am prepared to have further consultations to see whether or not it is necessary to extend the period.
Mr. Hughes: Why was one year fixed? You would have no experience of how the canal would work one year after the drainage had been carried out.
Mr. Smith: Why should we not?
Mr. Hughes: Because a dry year might come which might lower the water in the canal to such an extent that it would be unusable.
Mr. Harris: That could happen at present.
Mr. Hughes: Yes, but there could be no claim because there is no interference. Once you interfere, it is a different matter. If there is substantial interference with an individual's rights, he cannot establish a claim in one year because it is not possible to establish the real effects of the work in that period.
Mr. Smith: I will look into the point.
Amendment, by leave, withdrawn.
Amendments Nos. 56 and 57 not moved.
Section 16 agreed to.
 SECTION 17.
Amendments Nos. 58, 59 and 60 not moved.
Mr. Hughes: I move amendment No. 61:—
To delete paragraph (c), lines 29-37, and substitute a new paragraph as follows:—
in the case of a claim in respect of interference with water or a water course providing power for a mill or other industrial concern where the owners of such mill or industrial concern are desirous of continuing to use such water or water course and where the commissioners are unable to provide equal alternative water power or can only provide portion of the original water power, shall in his award require that the commissioners shall provide equivalent alternative electrical power from the Electricity Supply Board with the right for ever to the use of such power free of cost, and in such cases the award of the arbitrator shall provide for monetary compensation equivalent to the cost of purchasing and installing the equipment necessary to control and apply the electrical power to the machinery of the mill or industrial concern, and the arbitrator shall have power to attach the monetary compensation to the provision of equipment in the mill or other industrial concern.
This is a case of substantial interference with water power as a result of which a mill might be left high and dry. That mill may be a very important industry in a district and particularly to the individual owner. It may be vital to his interests that the mill should continue to operate, but there is not sufficient water to provide the necessary power. We feel that, having substantially interfered with the power which was provided by the water, the State might consider providing current generated by the State generating stations. The amount of compensation necessary in such a case would be very substantial. If the mill had a big output and if there was a  substantial profit accruing to the owner annually, the most convenient and cheapest way of compensating him would be by the provision of alternative power which would ensure the continued operation of the mill and the giving of employment in the locality. If that form of compensation is not provided, it might be that the mill would close down, with consequent loss of employment in the district.
Mr. Smith: It is, of course, the normal practice to investigate and probe in every way to overcome the type of difficulty that arises where mills and such industries are situated along a river, but surely it would not be reasonable to ask us to commit ourselves to what the amendment would commit us to. So far as I know, these interests are very often the cause of holding up schemes, in some cases for years, while efforts are made to provide suitably for these people when their industries are being interfered with. I do not think it is possible to do any better than we have done. We naturally try to keep an industry going. We try to provide substitute power, and, where all fruit fails, we have to resort to compensation.
Mr. McMenamin: No compensation would pay for the complete taking away of the power of a mill. If there are people from 20 homes working in a mill, what are you to do with them? How are they to be transferred to another district and what is the use of their going to another district if the mill is not transferred to it?
Mr. Smith: Then we will not get sanction for the scheme.
Mr. McMenamin: If we propose to interfere with rights by legislation, we should take steps to pay compensation and to do justice as between the parties.
Mr. Smith: We have to consult the Department of Industry and Commerce. If we were to interfere with any industry and if we found that we were unable to provide alternative power and that there was no means of carrying out the job without closing  down the industry, we could not do so without getting the consent of the Minister for Industry and Commerce or of another Minister in the case of fisheries. If, by our action, a very important industry were to be closed down, the Minister would say: “I will not agree”, and the scheme would be held up, so that the case the Deputy visualises would not arise.
Mr. Hughes: Is there any legislation which prevents you from interfering with milling rights? Is it necessary to repeal any existing legislation?
Mr. Smith: Does the Deputy mean water rights?
Mr. Hughes: Yes.
Mr. Smith: There are all kinds of provisions with regard to water rights in every part of the country.
Mr. Hughes: Where are they being repealed?
Mr. Smith: The only thing we are doing here is taking to ourselves the right to prepare a drainage scheme. In the course of the preparation of that scheme we will come across industries, mills and such concerns. If, by our scheme, we are likely to take away the water power on which a mill or industry is depending, we will try to design our scheme so as to make it unnecessary to do so. If we cannot do that, we will try to get agreement with the individual concerned as to providing alternative power. If we cannot get alternative power, and if there is no means of carrying out this scheme without putting that industry out of action, we cannot do that except after consultation with the Minister responsible, namely, the Minister for Industry and Commerce.
Mr. Roddy: Is there a provision for consultation with the Minister for Industry and Commerce?
Mr. Smith: There is.
Mr. Roddy: May we take it that, in the case of a mill being situated along the banks of a river for which it is suggested  a drainage scheme should be prepared, the commissioners will be in consultation with the Department of Industry and Commerce before they proceed with the preparation of the scheme for the drainage of that river? The first thing the drainage authority has to do is to find out what effect it will have on the industry on the banks of the river. If they find that, by carrying out the scheme, the water power will be depressed to such an extent that there will be no power to drive the mill and there is no other alternative source of power, they will not proceed with the scheme. Is that the position?
Mr. Smith: I would not go so far as to say we would not proceed with the scheme. Naturally, if we find that we are going to interfere with an industry, we will have to consult the Department of Industry and Commerce.
Mr. Roddy: The point I am making is this. I understand that, in a case where a drainage scheme would deprive a mill of water power and there was no alternative source of power, you would not proceed with the scheme?
Mr. Smith: It is a matter of asking yourself which of the two is the more important. It is the same as the determination of a matter in connection with fisheries. Suppose there is a river in which important fishery interests will be involved, it will be a matter of deciding which of the two is the more important.
Mr. Roddy: Both are important.
Mr. Smith: One could be more important than the other. It is a matter of deciding in connection with a matter of this kind which is the more important.
Mr. Hughes: We are giving you a solution here.
Mr. Smith: You are giving no solution.
Mr. Hughes: Supposing there is a very important mill standing in the way, the Parliamentary Secretary  suggests that, because that mill is there and is an important industry, a very considerable area of land is to be allowed to suffer in consequence of that and is to be left in a water-logged condition and flooded periodically. Merely because the mill is there we are to leave a big area of land in that flooded condition periodically. If we have water tumbling over the dam at Ardnacrusha, and we are generating electric power and dealing with a national problem, should we not supply the power generated there to the mill and keep the wheels turning and tackle the drainage job as well? That is the idea behind this. We are in a position to say that we are a national Parliament. We have provided a national electricity scheme under the E.S.B., and if we have to deprive this mill of water power in order effectively to drain the area in which it is situated, nevertheless we recognise the fact that this mill is an important industry. Why should we not supply the electric power at our command to keep the wheels truning? I think it is a useful amendment and the Parliamentary Secretary should seriously consider it, because no money might be able to compensate the owner of the mill or the people operating it. The owner may not be fit for any other sort of work. He may have devoted a big part of his life to it and trained some of his sons to operate it. If you decide that the drainage of a big valley area is of more importance than a single mill, according to the Parliamentary Secretary's argument, the mill would have to go and that is all about it, because the other would be the more important.
Mr. Smith: Then there would be compensation.
Mr. Hughes: In that case, you could scarcely compensate him, because money would not compensate him for his interests.
Mr. Cogan: The Parliamentary Secretary suggested he might be placed in the position of having to choose between closing down an industry or leaving an area undrained. I  think that that alternative could never arise. I do not think there is any district which is not served by the Electricity Supply Board. I do not think there is any district in which it would not be possible to connect up with the electric current. Therefore, he would not have to make that choice. There is also the point as to the persons who may be affected. Of course the owner of the mill would be affected by its being closed down and so would the employees. There would also be people affected if the mill were working for commission, such as the grinding of corn. A large agricultural area might be adversely affected if a commission mill was closed down. I think the Parliamentary Secretary should accept the amendment and at least endeavour to see if it would be possible to keep such an industry going. I do not think there is any district that cannot be connected with the Electricity Supply Board scheme.
Mr. Smith: I could not accept the amendment. I will not commit the drainage authority to a provision of this kind. It is not reasonable to ask me to do so. It is safe to assume that, just as in the past, we will meet this problem of mills along the river banks and try to leave with them the water power they have or, if we are unable to do so, try to provide alternative power. Undoubtedly, we will provide, if we can, the sort of power suggested here. But that is a different thing from tying our hands and saying that we must do this. How could we have done it for the last six or eight months? How could we commit ourselves to the provision of this type of power for all time? It would not be reasonable to ask us.
Mr. Roddy: Surely it is reasonable to ask that, if you deprive a man of one source of power, you should provide him with another?
Mr. Smith: How will you provide it if it is not available?
Mr. Roddy: It is available.
Mr. McMenamin: It is a question of money.
Mr. Smith: If you want to say that there is no limit to the distance you will have to provide him with electric power——
Mr. McMenamin: You can provide him with an engine to generate the power. It is a very simple matter. It is not a matter of a heavy financial liability. You said that if the mill stands in the way, the mill must go. Why should it go? £100 will put in an engine to generate electricity.
Mr. Smith: Why should we kill the fish? We would not kill them if we could avoid it. Why do we provide for a period of ten years within which to determine the extent to which we have been damaging the fisheries? We have in all these cases to ask ourselves which of the two is the more important. There will be no burning anxiety on the part of the drainage authority to destroy an industry for the sake of getting at a stretch of river. But there is no other means of dealing with it.
Mr. McMenamin: There is.
Mr. Smith: It will ease our problem if we are able to leave them with the power they have, or, if we are free to provide alternative power, that would be a very simple way out for us and we would be glad to take it, but I do not want to tie my hands.
Mr. McMenamin: The Board of Works may say: “We cannot provide any alternative power.” I assume there will be arbitration in a case of this kind and the arbitrator will deal with the loss to the mill owner. But what about the workers — will they come into it? In all these cases you can provide the power simply and cheaply by guaranteeing electric power or the price of mechanical methods to equal the horse power you have taken away. There is no necessity to take away the mill; there is no justification for that attitude. We can remedy the position and we have the method of doing so within our reach. It is a question of money but it is not a serious financial matter.
I think the Parliamentary Secretary  should be reasonable in this matter. We are not trying to tie his hands. I do not want to tie his hands. He has a job to do on behalf of the nation and he cannot do it if his hands are tied. We merely want justice done where otherwise an injustice would be done. There should be no question of taking away anybody's property. The damage done to an owner of a mill can be easily and cheaply compensated. It is only a question of calculating the horse power of the mill and giving him alternative power. If you give him 20 years' purchase, that does not compensate the workers. That mill may benefit ten or 15 homes; maybe 100 individuals will have their livelihoods interfered with. There is no difficulty about providing for that. There must be no high-horse methods, no saying “Come on; get out of this.”
Mr. Hughes: Perhaps the Parliamentary Secretary will examine this matter further?
Mr. Smith: Some 50 schemes have been carried out under the 1925 Act.
Mr. McMenamin: We are not tied by any Act here.
Mr. Hughes: What experience has the Board of Works in this connection?
Mr. Smith: Very considerable experience.
Mr. Hughes: What has happened?
Mr. Smith: In the main we have been able to get agreement by consultation with the owners of those concerns. We have gone out of our way in many cases to meet them and to keep the industries going.
Mr. Hughes: Has it resulted in the closing down of any mills?
Mr. Smith: I am not aware there has been any case in which we were not able to get over the difficulties some way. Of course, every case is different. The circumstances surrounding each case are different. You must have a certain amount of freedom to approach the subject and you must examine each case on its merits. I can  see great difficulty arising in certain cases, but we shall have to try to get over them in the same way as in the past and I have no doubt they will be got over.
Mr. Roddy: If a mill owner is deprived of the water power for his mill and there is an alternative source of power available, will the commissioners see that that alternative source will be provided?
Mr. Smith: We have done that in the past and we will do it in the future.
Mr. Roddy: If it is available?
Mr. Smith: Sure. There is no question of trying to squeeze anybody out.
Mr. Hughes: The Parliamentary Secretary gave us a picture of two conflicting interests and the lesser interest, he said, might have to go.
Mr. Smith: What can you do?
Mr. Hughes: If there is an important milling interest on a river, surely the people in a whole valley ought not to suffer?
Mr. Smith: I admit that.
Mr. Hughes: Obviously there is a solution—provide national current for the mill to keep it going.
Mr. Smith: Everyone will be anxious to preserve the mill, if it can be done.
Mr. Hughes: If there is an important milling right which would involve the State in a considerable amount of compensation, the drainage there might be neglected. I do not believe that would be right and I am sure the Parliamentary Secretary will agree that it would not be right to do that.
Mr. Smith: These mill owners have been very well treated in the past and the House may rest assured that they will be very well treated in the future.
Mr. Cogan: The Parliamentary Secretary will admit that there are other people interested as well as the mill owners?
Mr. Smith: I am thinking of them, also.
Amendment, by leave, withdrawn.
Mr. Hughes: On the section, I should like to draw attention to paragraph (c), which sets out that the arbitrator shall have regard to the extent to which the power so provided — that is, water or a watercourse — was used for an industrial purpose during the ten years next preceding the date of the confirmation of the said drainage scheme by the Minister. That is the position when he is assessing compensation for power. It appears to me that that position arises where that power has been in use. There may be potential power there. Do you propose to compensate for potential power that has not been used?
Mr. Smith: We do not want to provide compensation where a mill has been derelict during the ten years preceding a certain date.
Mr. Hughes: But it might be an asset and some people might value it. It is like digging up a mineral.
Mr. Smith: For goodness sake, do not give them more than they are entitled to.
Mr. Hughes: The ten preceding years might involve an emergency period when the power might not have been used, or used to a very small extent because of the shortage of raw materials.
Mr. Smith: They will be favourable years in this case, will they not?
Mr. Hughes: How is that?
Mr. Smith: The years we will be covering will be favourable years, years in which water power would have been used for that purpose.
Mr. Hughes: On the Second Reading the Parliamentary Secretary told us that this scheme will take 25 or 30 years to complete.
Mr. Smith: I think we mention the date from which the ten years will count.
Mr. Hughes: Yes, the ten years preceding the date of the confirmation of the said drainage scheme by the Minister. But we might have another war. Suppose a scheme was confirmed 25 years hence and there were ten bad years preceding it. The Parliamentary Secretary might look into that matter again.
Mr. Smith: It was the deliberate intention not to let people away with something that they were not entitled to get.
Section 17 agreed to.
Mr. Smith: I move amendment No. 62:—
In sub-section (2), page 13, line 45, to delete the words “of an aggregate annual value”.
This is purely a drafting amendment.
Amendment agreed to.
Mr. Smith: I move amendment No. 63:—
In sub-section (4), page 14, line 8, to insert the words “agent or servant” before the words “of the commissioners”.
This is also a drafting amendment.
Amendment agreed to.
Mr. Hughes: On the section, I should like to mention that the commissioners are given power to amend a final award. This provision of an award does not affect the rated occupier in any way?
Mr. Smith: No.
Mr. Hughes: It is an aggregate, not a detailed one.
Mr. Smith: This relates to a division between counties.
Mr. Roddy: Will there be separate awards?
Mr. Smith: You will have to apportion the amount for maintenance purposes.
Mr. Roddy: In the case of a scheme embracing three counties, will you have a separate award for each county?
Mr. Smith: We will apportion the amount of the improvement.
Mr. Hughes: There is another matter. Sub-section (3) says:—
“Whenever the commissioners amend under this section the statement contained in a drainage scheme of the aggregate annual value or the total increase in the annual value of lands, the commissioners shall inform in writing the council of the county in which such lands are situate of the making of such amendment.”
Can the local authority object?
Mr. Smith: What would they have to object to?
Mr. Hughes: Suppose there is a reduction in any way?
Mr. Smith: It is only a matter of adjustment as between the counties.
Mr. Hughes: But here is the point. If there is an increase in the valuation, it increases the borrowing power of the local authority. I think it is unlikely that there will be a reduction.
Mr. Smith: The amount of the improvement which will accrue from the carrying out of a scheme is assessed, and if there was a mistake made as to the apportionment of that amount as between three counties it is purely a matter of amending the thing. There is nothing in that.
Mr. Hughes: There may be more amendments than that.
Mr. Smith: No.
Mr. Hughes: Supposing there was a partial certification of a scheme; then there will be a further amendment on the completion of the scheme. The Minister has power to certify partial completion?
Mr. Smith: Yes, but what difference would that make?
Mr. Hughes: Except that when it is completed of course there will be an adjustment in the final award.
Mr. Smith: If you had a scheme prepared for a whole catchment area, and you carried out portion of it, and that portion was in two or three counties, you would have to apportion the improvement as between each of the counties, just as you would in the certificate of completion later.
Section 18, as amended, put and agreed to.
Mr. Hughes: I move amendment No. 64: —
Before Section 19 to insert a new section as follows:—
The Minister shall appoint an appeal board which shall consist of three members, one nominated by the commissioners, one by the general council of county councils and the chairman who shall be a judge of the High Court.
It shall be the duty of the board to: —
(a) hear and determine any dispute that may arise between local authorities and the commissioners,
(b) decide any other matter referred to it under any of the provisions of this Act.
Mr. Smith: We have decided this amendment.
Mr. Hughes: We have not decided it at all. The Parliamentary Secretary may have decided it, but Dáil Éireann has not decided it yet. Of course I suppose he will get the fellows to line up behind him.
Mr. Smith: This has been discussed and decided.
Mr. Hughes: This amendment seeks to ensure the setting up of an appeal board, (a) to hear and determine any dispute that may arise between local authorities and the commissioners, and (b) to decide any other matter referred to it under any of the provisions of this Act. According to some of my  amendments, a few matters other than disputes between the local authorities and the commissioners might be referred to the appeal board. Dáil Éireann, in its wisdom, set up a Drainage Commission a few years ago to examine this whole problem of national drainage, and to a great extent this Bill proposes to implement the findings of that commission. One important recommendation made by the commission was in regard to this appeal board. In paragraph 313 of their report, they recommended as follows: —
“We recommend that a standing appeal board consisting of three members should be established for the settlement of disputes that may arise between the central drainage authority and the local authorities and which the Minister may see fit to refer to the board. One member should be nominated by the central drainage authority, one by the County Councils General Council, and the chairman by the Minister for Finance.”
There is a slight change in the personnel there, so far as my amendment is concerned, because I felt that the personnel recommended there might be loaded to some extent against the interests of the local authority. Their recommendation goes on: —
“The Board should include a person with technical qualifications and practical experience and also an experienced and practical farmer. The decision of the Appeal Board in any matter submitted to it should not be subject to review by any court.”
One of the things that strikes me about this machinery is that, first of all, the State carries out a scheme, and the cost of that scheme is provided by the State. Then, on a date to be appointed by the Minister, it is proposed to take over the existing drainage — you have drainage operated by trustees and by local authorities — and all maintenance will become a county-at-large charge. There will be an intermediate stage when the local authority will maintain the drainage works until the maintenance is finally taken over by the commissioners. What worries me is that, once it is taken over by the commissioners,  the local authority will have no say whatever as to the amount that is to be provided for and spent on maintenance. It gives the Government — I am not merely referring to the existing Government but to any future Government; there may be a time when it will be very difficult to provide employment in this country — an opportunity of relieving unemployment through paying almost too much attention to the maintenance of drainage works, and the local ratepayer will have no say whatever in the matter. The commissioners will decide that a certain amount of money must be spent on the maintenance of that particular drainage work; the bill will be presented to the local authority, who will have no court of appeal whatever. They must pay up, and that is all about it. They might feel that the amount spent was excessive. Furthermore, they might feel that the work was very inefficiently carried out, that supervision was lacking, and that they were getting very bad value for their money. They cannot question that.
This commission which we set up was composed of very eminent and very capable men and their recommendation in this case showed an amount of wisdom. I cannot understand why the Parliamentary Secretary saw fit to depart from that, except that I am afraid he is completely under the influence of the Commissioners of Public Works, and that they saw that this Appeal Board might give them a good deal of inconvenience; that they wanted to clear all inconvenience of any sort out of their way; that they wanted to have complete autocratic control; that the vital interests of the individual down the country did not matter; that they in their wisdom were quite capable of deciding how much money should be spent on maintenance, how far the people down the country were able to provide that money, and whether it was a hardship on them or not. The people in Stephen's Green considered themselves quite capable of deciding the amount that should be spent. We can understand very well the mentality that might exist in that Department, and that there might not be anyone in it who would be particularly worried  about the burden that might be thrown on the people, or about whether or not the amount spent was excessive. Obviously, a board of the sort envisaged here would be the proper body to determine between the interests of the local people and the sort of bureau-cratic organisation that we are setting up under this Bill.
Mr. Cogan: If the Parliamentary Secretary is not prepared to accept this amendment as worded, would he be prepared to provide some form of tribunal? He may not be attracted to the type of tribunal proposed here, but at least he will admit that there should be some form of appeal open to local authorities and to anybody else who may be aggrieved, to decide any matter in dispute which it may be found necessary to refer to such a board. If he looks into this, he will see the necessity for some form of tribunal, constituted, perhaps, in a different manner from that set out here. It will be found from experience that, if a properly constituted body is set up, it will not be in any way interfering with the carrying out of the drainage scheme, but will provide safeguards, not only for individuals and districts, but for the various local authorities concerned, and it will promote more confidence in the justice of the whole drainage administration. I think the Parliamentary Secretary should be prepared to consider this and, if the amendment is not acceptable in its present form, he might substitute one which would better meet the case.
Mr. Smith: I have said all I want to say on this matter of the wisdom of an appeal board, and I do not propose to make any further statement about it. The fault I have to find with the Drainage Commission in this recommendation is, to put it in as few words as possible, that they recommended the setting up of a drainage authority and, in this recommendation 313, they recommended the setting up of an appeal board which would, in fact, mean that the authority would be the appeal board. Deputy Hughes put his finger on the difficulty. He cited a number of matters in which a local authority or  local individuals could resort to appeals — the number of drains included in a scheme, whether the work was efficiently carried out, whether it had been done this way, that way or the other way — and the result would be that the authority which the Drainage Commission recommended should be set up for the purpose of handling this whole problem of drainage would have the whole responsibility, while all the authority necessary for that purpose would have been taken away by the setting up of an appeal board which would, in fact, become the authority. That is my objection, in as few words as I can put it.
As I said last night, the idea of an appeal board in anything looks good but, if you apply your mind to all the things that it may be called upon to do in this case, you will find that the board Deputy Hughes is suggesting here will certainly be a full-time job. Not only that, but it will make a full-time job for the drainage authority, and for the officials of the drainage authority coming before them on every conceivable kind of issue and having both their time and the time of that authority frittered away in all kinds of trivial appeal cases.
Mr. Hughes: The Parliamentary Secretary has not attemped to answer my suggestion. First of all, we want to ensure that there will be protection for the people who have to foot the bill for maintenance. Obviously, they are going to get benefit from the maintenance of the drainage works and the works must be maintained. If there were a big problem of unemployment in this country, this machinery might be used to solve that problem, by putting a lot more men on to maintenance than it was economically sound to put.
The Parliamentary Secretary has evidently forgotten — or it may be convenient for him to do so — that he has put down an amendment to Section 57 covering the Limerick case. Obviously, something went wrong in the Department of Public Works, or the Parliamentary Secretary would not be forced to put down that amendment, to over-ride  a decision of the High Court. It is a very objectionable amendment. In the same way, in sub-section (5), there is an omnibus provision to validate anything that might have been done in an invalid way by the Commissioners. Surely that is most undesirable? Yet, the Parliamentary Secretary is bringing before this House provisions of that sort and trying to assure the House, at the same time, that the people up above cannot do anything wrong and that there is no necessity to provide the protection we feel is so essential.
I ask any Deputy of the Fianna Fáil Party to turn over to the amendments to Section 57, by which it is sought to defeat the High Court decision. There is a more objectionable amendment still.
Mr. Smith: We will discuss it when we come to it.
Mr. Hughes: I must cite that, to prove the absolute necessity of providing an appeal board, to protect those who will be mulcted by a provision of this sort. If we have any respect for the commission we set up, surely an important part of their recommendations was the provision of an appeal board to adjudicate on any dispute that may arise. It is quite obvious that disputes are inevitable between the local authority and the commissioners about work of this sort, where the local authority is vitally concerned and must foot the bill and where a bill is presented annually for a substantial sum of money. What are they to do, if they feel they have a grievance, if they feel that the work and the operations in their particular area of authority are not satisfactory? What court of appeal have they?
Mr. Smith: None.
Mr. Hughes: And the Parliamentary Secretary proposes they should have none, that they should suffer the grievance in silence, that they cannot do anything about it? We here as legislators are asked to agree to that?
Mr. Smith: There is a final court in every matter.
Mr. Hughes: If we legislate and it is taken into court, the court could not adjudicate on that, because we are giving power to the Commissioners here to maintain an existing drainage works and they present the bill. A judicial decision would not arise in that case at all. It is a question of administration, which is very different. The judge of the court would not have any function in it. Obviously, a case of that kind is a case which should be adjudicated on by an appeal board of this sort, and it is recommended by the Commission, but the Parliamentary Secretary says he will not have it, because it is incovenient.
Mr. Smith: Because it is impossible.
Mr. Hughes: Because it is inconvenient.
Mr. McMenamin: Why is it impossible? On what grounds? If it were a question of dealing with a chain of individual farmers, I could see the point of the Parliamentary Secretary being so adamant.
Mr. Smith: So it is.
Mr. McMenamin: Well, let us see the question of local authorities involved here.
Mr. Smith: And the individuals.
Mr. McMenamin: I am dealing now only with the local authorities.
Mr. Smith: We are dealing with the question of an appeal board.
Mr. McMenamin: Keep the things apart. A local authority represents the ratepayers and if they unnecessarily bring a matter before the tribunal, to which the Parliamentary Secretary has so great an objection, the Local Government auditor can surcharge them with the costs. They will, therefore, take good care that  they will not apply for arbitration in connection with every trifling matter that arises. The Parliamentary Secretary agreed this evening, when we opened on Section 9, that he would discharge his democratic duty and stand between the Executive and the people. I hope he examines his conscience on that point. Every time he stood up since, it was to defend the viewpoint of the Department and its officials. He has not given way on a solitary point during the whole evening. We are asking him to set up a tribunal to deal with appeals by local authorities who think that their rights are infringed. The members of local authorities are responsible persons. They will have an additional sense of responsibility in this case in as much as they will realise that if they incur unnecessary legal expense they will be surcharged. That is an additional safeguard for the Parliamentary Secretary.
Mr. Bennett: I support Deputy Hughes's amendment. I admit that I have an appeal complex, although the Parliamentary Secretary accused me of having another kind of complex this evening. I do not want to anticipate an amendment which is further down on the paper but I may make a passing reference to events that have occurred. Similar events may occur in the future. Those events in the past helped me to make up my mind that it was almost essential to have some intermediary between the commissioners, the local bodies and the affected public to decide questions in dispute. I do not desire in the least to cast a slur on the engineers or those who will carry out the commissioners' work. I believe they are as fine a body as can be found in any country. But the highest members of every profession have made mistakes and will do so again, and it is not inconceivable that even the officials of the Board of Works will make mistakes. They may not readily perceive their own mistakes but, where there is cause for reasonable complaint, it should not be left to the officials to decide against themselves. They would be likely to decide in their own favour.
Referring to the Drainage Commission's report, the Parliamentary Secretary said in an indirect way that he  himself was rather partial to the idea of an appeal board, but that he did not like the body the Drainage Commission proposed, that it would mean that the Drainage Commissioners would decide appeals for or against themselves. If the Parliamentary Secretary did not like the method proposed by the Drainage Commission, it was up to him to correct it. He could easily have proposed an alternative appeal board. I suggest that the idea of an appeal board did not find favour with the Parliamentary Secretary or, perhaps I should say, the commissioners. If they approved of the idea, they should themselves have suggested some form of appeal tribunal which would be acceptable to the House. There may be objections to Deputy Hughes's amendment. I am sure that Deputy Hughes would be the first to agree to different wording if it would give us what we desire. I am, perhaps, speaking as a prejudiced person on this question because I have had experience of a difference between the Board of Works, local bodies and local people. I shall not say who was right or who was wrong but it was, eventually, decided that one party was wrong. The matter presented a great deal of difficulty and a number of people were involved in considerable expense, including myself. That is why I say I may be prejudiced.
This House should not set up an autocratic body. As the Bill stands, we are setting up a body to undertake essential work which was too long delayed and we are giving that body powers which we never before gave to any similar body in this State, so far as I know. Nobody desires that the powers of this body should be limited to an extent that would impede drainage work. No proposal has been made by any Deputy that such a thing should happen, but it is the duty of the Opposition and of other Deputies to see that the work of bodies such as this, set up by the State, shall be subject to some revision. If it is suspected that their work is not completed in a satisfactory manner, it should not be judged by themselves. I am speaking as much for the Parliamentary Secretary as I am for the parties concerned.  If this body is set up, it will save the Parliamentary Secretary, or some future Parliamentary Secretary, considerable trouble and it will save other interested parties both trouble and expense. If some appeal board is not set up, we are likely to have what the Parliamentary Secretary least desires — legal actions over every conceivable question.
That is if, before the Bill leaves the House, the Parliamentary Secretary does not introduce a provision to make legal action impossible. He has already gone very far in that direction. There are very few loopholes left to aggrieved persons for proceedings in the courts. In fact, it would seem to be injudicious for anybody to have the temerity to resort to the courts against this body if the Bill leaves the House as it stands. Therefore, we shall have a position of affairs in which a body will be invested with powers to undertake work which they will argue is satisfactorily completed, whether it is or not. That is a position for which this House ought not to stand. I do not agree with it and I hope the sense of the House will appreciate the value of Deputy Hughes's proposal. I think the Minister ought to accept it, if not in the words set down here at least in some other form, so that he will give us some chance of obtaining an impartial decision as between the Drainage Board and the bodies or individuals affected.
Mr. Allen: I agree that, as there may be a big clash of interests between the central authority and local authorities in future, some arbitration body should be provided under this Bill. As Deputy Bennett pointed out, there are provisions in this Bill such as were not contained in any previous legislation introduced in this House. You have, first of all, the central drainage authority who will carry out the capital expenditure part of the work and then hand it over to the local authority to maintain. Part III of this Bill is very far-reaching so far as the duties of local authorities go and the drainage board will have very far-reaching powers in respect to local authorities. There is bound to be a clash of interests  but it will not be a clash of interests between ordinary members of the county council and the Board of Works. It will be a clash of interests between the county managers and the Board of Works. The manager will be the executive authority and he will be responsible for safeguarding the interests of the county council. It really does not matter whether it is the manager or the ordinary council, as the councils are going to provide the full cost of maintenance on works handed over to them and certified by the drainage board, to be constituted under this Bill. Some provisions should be made to deal with such a clash of interests. Even with the best will in the world, there is bound to be a clash of interests on some occasions. For instance, the county council may challenge a decision on the point as to whether capital expenditure or expenditure for maintenance is needed. There may be an embankment in respect of which the drainage board will decide that only maintenance is needed, while the officers of the local authority may say that capital expenditure is needed. That is one direction in which I can see a very big clash of interests.
You may have drainage areas in which a big capital expenditure is needed but the Board of Works may decide that it is only expenditure for maintenance that is needed. It is provided in this section that no appeal whatever lies with the High Court. I agree that an appeal should not lie to the High Court, because I can foresee all kinds of litigation and very big expenses put on either the State Department or the local authority in pursuing such an appeal, but an arbitration board of some kind, other than the High Court, should be set up to decide disputes between the central authority and the local authority. The local authorities are taking on a big responsibility, a much bigger responsibility than the Parliamentary Secretary will concede. This future drainage board will have arbitrary powers under the Bill to compel the local authority to do many things that they feel should be done. I think that the Parliamentary Secretary should between now and the Report Stage reconsider this matter. If he does not  see his way on reconsideration to agree to the suggestion, well and good, but I think it needs reconsideration.
Mr. Smith: I do not want to allow Deputy Allen to get away with the idea that even when the scheme that is outlined in the report of the Drainage Commission is carried out, at an estimated cost, as they put it, of £7,000,000 there is going to be such an enormous burden transferred to the local authority for maintenance. The Drainage Commission dealt with that problem and if we have so much respect for what they have to say in some directions, then it is only right— I am putting it this way to Deputy Allen — that we should have respect for what they say in other directions. They estimate that the average maintenance expenditure would be 1½ per cent. of the constructional costs, and if you take 1½ per cent. of £7,000,000 and divide it over the Twenty-Six Counties you will get some idea of what the local authorities are being asked to bear. Deputy Allen is saying here that you have to meet a big cost, but I want to get your mind a little bit ordered.
An Ceann Comhairle: The Deputy's mind.
Mr. Smith: If the Ceann Comhairle interrupts me as well as other Deputies——
An Ceann Comhairle: According to Standing Orders, Deputies should address the Chair. If Deputies address one another familiarly as “you”, the tone might change occasionally.
Mr. Smith: I am saying that I do not want Deputy Allen to get away with the idea that local authorities are going to be saddled with some enormous burden because the Drainage Commission in their report have set out exactly what they thought the burden would be. They said that it would take, roughly, 1½ per cent. of the actual cost of the construction work.
Mr. McMenamin: We are not discussing that.
Mr. Smith: The Deputy may not be discussing that but Deputy Allen has made the point that this is what the county councils were being walked into and he tried to make the case that the county councils should have some redress in the way of a court of appeal. I am suggesting that the burden is not so great as some Deputies would have us believe. I take the following from the Report of the Drainage Commission: —
“The technical opinions given to us are almost unanimous that an annual sum equivalent to 1½ per cent. of the cost of construction should be sufficient to secure good maintenance of completed works. We put forward this figure as an average all-round estimate embracing all schemes. In some areas maintenance costs will be higher than this estimate but in other areas they will be lower. This estimated sum is exclusive of the salaries and travelling expenses of the resident engineers in the regional areas, which we estimate at £6,500 per annum. If the comprehensive scheme is fully carried out and if the embankments, which we deal with later, are reconditioned and repaired, we anticipate that the future annual expenditure on maintenance will be as follows:—
|Maintenance of works carried out under the comprehensive drainage scheme||105,500|
|Maintenance of 51 drainage districts under the 1925 Act||7,000|
|Maintenance of the Barrow Drainage District||6,500|
|Maintenance of the Owenmore Drainage District||500|
|Maintenance of embankments not included in comprehensive scheme||12,000|
|Salaries and travelling expenses of resident engineers||6,500|
Mr. Allen: Per annum.
Mr. Smith: Having regard to the responsibility the State is assuming in  bearing the cost of the constructional work, I do not think that local authorities have anything to be anxious about in undertaking to carry a burden of £138,000 per annum. Deputy McMenamin has made the case that the right of appeal will be confined to local authorities. The right of appeal that is being sought here will be available to every individual.
Mr. McMenamin: No. What I am dealing with is the right of local authorities.
Mr. Smith: Well, I do not know what the Deputy is dealing with.
Mr. McMenamin: What I was dealing with was the right of local authorities.
Mr. Smith: Whatever the Deputy was dealing with, I say that once you set up this court of appeal — and there are other amendments and other proposals further on — it would mean giving to each individual who wants to refer to a tribunal the right to refer to it, and the case I have made and am now making, and the ground upon which I am going to stand, is that once you set up an authority and give it responsibility, and once you set up against that authority an appeal board, to which local authorities and all other people whose interests may be affected in the ways in which many people's interests can be affected, the drainage authority disappears and the court of appeal becomes the authority, and you are asking us to constitute such a court and leave in its hands the entire responsibility for all this work.
Mr. McMenamin: I am not asking the Parliamentary Secretary for any such thing. The Parliamentary Secretary is putting up a separate hare.
Mr. Roddy: The Parliamentary Secretary mentioned the estimate given by the commissioners of what the total maintenance charge is likely to be under the scheme. I think that 1½ per cent. was the amount estimated. That, however, is only an estimate, and the amount, probably, might be much higher.
Mr. Smith: It might be lower.
Mr. Roddy: Yes, it might be lower, but on the other hand it might be higher and, to judge from past experience, I should say that it is certainly going to be very much higher. We know perfectly well already that the amount allowed for maintenance on completed schemes is not sufficient to maintain them in a proper condition. I know, for instance, that in connection with the Owenmore scheme, there was an amount of, I think, £500 provided for the maintenance of that river, but it is a well-known fact that that amount is not nearly adequate to maintain the river in a proper condition. As a matter of fact, that scheme was completed only about 15 years ago, and there is a demand now for another major scheme. Whilst it is interesting to read the estimates of the commissioners in this matter, it must be remembered that they are only estimates, because one never knows what expenditure or cost drainage work is likely to lead us into. After all, notwithstanding the experience of the Board of Works, I do not think we have what you might regard as expert drainage in this country yet, and even the commissioners, notwithstanding their experience, are not in a position to estimate what the cost of maintenance will be or what will be the liability of the local authorities in this matter.
It is inevitable that in connection with a national scheme of this kind disputes will arise between the local authorities and the commissioners, between individuals and the local authorities, and between individuals, the local authorities and the drainage commissioners; and, after all, it seems to me that a board of the type suggested in this amendment would be really an asset to the commissioners, would relieve them of a great deal of responsibility, and relieve them of a class of work which, properly speaking, it is not their duty to undertake. If disputes do arise in connection, for instance, with the awards made in respect of maintenance, then it is right that there should be some authority to determine whether these awards are fair, whether they are in proportion to the works undertaken, and whether they impose an undue  burden on the local authorities. I cannot see what argument there can be against the establishment of an appeal board. I am sure that the Minister or the Parliamentary Secretary is as anxious as other members of the Dáil to see the machinery of this Bill running smoothly and, if he wants difficulties to be readily overcome and to ensure that there will be no disappointment or dissatisfaction in the country, then, surely to goodness, an appeal board would help to ensure the smooth working or smooth running of the Bill.
I know that the question of the appeal board has been discussed on earlier sections of the Bill, and the Parliamentary Secretary has made the same case against it now that he made when we were discussing previous sections of the Bill, but still he has not convinced me that he has advanced any sound reason why an appeal board should not be set up, or, if it were set up, that it would not perform very useful and helpful work in connection with the operation of this Bill, when it becomes an Act.
Mr. Coogan: There is another aspect of this matter which, probably, has not occurred to the Parliamentary Secretary. The initiation of schemes is imposed on the Board of Works as a matter of expediency, not as a matter of necessity. “Expediency” is the word used in Section 4, and we have no indication here as to what order of priority will be applied by the Commissioners of Public Works either in the preparation of schemes or the actual work under schemes. I can conceive of a case arising where a local authority feels aggrieved in that the Board of Works are dilatory in preparing a scheme for them, or may, perhaps, refuse altogether to prepare the scheme.
I think it would be one of the functions of an appeal board to examine into such a dispute, and if you do not set up machinery of this kind you have no machinery by which the local authority can bring their case anywhere else, other than before the Commissioners of Public Works, who may refuse to act in the matter at all. I think that that is a serious aspect of the matter.  For instance, I have in mind a case in my own constituency where we have considerable flooding from time to time: that is, in Kilkenny City. Properly speaking, we do not come under this Bill from the point of view of improving agricultural land, and we will probably have to wait until the farming districts are improved and developed by various schemes before our case would be considered, but there are hundreds of houses in the City of Kilkenny that are flooded periodically, and I have no idea in what order the Commissioners of Public Works intend to tackle this matter, but I would suggest to the Parliamentary Secretary that, apart altogether from disputes that may arise in the actual working of schemes or with regard to maintenance costs of schemes, it is quite conceivable that disputes will arise where there is an impasse, where the local authority will get no satisfaction at all from the Board of Works and they will have no redress.
I do not wish to go into the amendment which the Parliamentary Secretary has down, amendment No. 57. That will be dealt with in due course, but I can see that his difficulty in accepting this particular amendment is that he has tied himself up with his own amendment, No. 57. I would ask him, however, to consider that aspect of the matter and reconsider this whole case. After all, this Drainage Commission was composed of very responsible men, including some of the expert engineers who will have to operate the various schemes; and if they, in their wisdom, saw fit to recommend this appeal board, we, at least, on this side of the House, have heard no cogent reason whatever why an appeal board is not provided now.
Mr. Cogan: In opposing this amendment, the Parliamentary Secretary made the case that this appeal board would have to await the settlement not only of disputes between the local authorities and the commissioners, but also the settlement of matters that might be referred to the tribunal. As far as I know, any amendments which sought to refer other matters to this appeal tribunal, which had been dealt  with so far, have been more or less eliminated.
Mr. Hughes: Very much eliminated, and not “more or less.”
Mr. Cogan: I would ask the Parliamentary Secretary to consider having an appeal tribunal for the exclusive purpose of dealing with disputes between county councils and the commissioners. If confined to that purpose, the amount of work it would have to do might not be as great as the Parliamentary Secretary seems to believe.
Mr. Hughes: If the Parliamentary Secretary will confine the work of the appeal tribunal to adjudication on disputes between the local authorities and the Commissioners I am prepared to meet him on that.
Mr. Smith: It may be that some people are very concerned about having nice efficient machinery and all sorts of appeal boards, but I take it that the House wants, when work starts, to get it done. The House will not get work done by adopting the suggestions made here. I am not prepared to accept the amendment.
Mr. Hughes: I am afraid the Parliamentary Secretary has not yet grasped the importance of putting safeguards for the individual citizen into legislation. If, however, he studies the legislation enacted over many years, he will find that such safeguards are always provided, and it is most important that they should be. The local authorities represent the people in their areas and should have some court of appeal to which they can have resort. Surely, it is not a democratic thing to deny them the right to go before an appeal board if they feel they are suffering under a grievance.
Mr. Allen: The Parliamentary Secretary has pointed out that the maintenance rate will be small in comparison to the amount which the central authority is going to spend. I would like to join issue with him on that. After a certain period of years, the repayment of the capital expenditure  will cease, but the payment of the maintenance rate will not. It is, I think, correct to say that the payment of the maintenance rate will commence even before there is any capital expenditure incurred. The maintenance rate of £138,000 will be substantially greater than half the estimated capital expenditure.
Mr. Smith: That is only when half the work is done.
Mr. Allen: If everything were ready in the morning, you could compel the county councils to take over the maintenance of all existing drainage.
Mr. Smith: To maintain them up to the present standard.
Mr. Allen: You are also taking over the trust funds that are there for the maintenance of this drainage.
Mr. Smith: We are not.
Mr. Allen: According to the Bill you are. You are going to pay over to the Exchequer the trust funds that are there at present for the maintenance of the existing drainage.
Mr. Smith: We are not.
Mr. Allen: As I read the Bill, you are. Arbitrary powers are being taken in the Bill, as far as the local authorities are concerned, and they are very much perturbed about that. I admit that, while the measure is a good, sound one, you are bringing in on top of the local authorities a Government organisation that never had any control over them. Through your engineers you are going to compel the local authorities to maintain the existing drainage up to the standard you believe should be aimed at. I have no objection to that, but you are then going to assess each year on the local authority the sum you think they should provide for such maintenance. As a consequence of that, there is bound to be friction, and probably very big friction, between the local authorities and the Office of Works in the future. That will be bad for the drainage scheme and everything else.  Because of that, I believe the Parliamentary Secretary should consider between now and Report Stage the recommendation of the Drainage Commission to have an arbitration board to arbitrate under Parts 3 and 4 of the Bill, and without reference at all to Part 2. I do not think that is an unreasonable demand.
Mr. Bennett: The Parliamentary Secretary seemed to get angry when Deputy Allen suggested that the county councils might be mulcted in a very big sum for maintenance. I do not think that even the Commissioners themselves can now assess what that amount will be. I do not think anybody is in a position to say exactly what the future drainage of the country is going to cost. The question of drainage and the burden it places upon local authorities and the ratepayers is a very critical matter.
In connection with a section, which is to be debated later, I can say now that the cost envisaged there is only a very trivial matter when compared to the cost of what the whole drainage of the country will be. Yet, it will amount to nearly 3d. in the £ on every ratepayer in a particular county. In my own case, it will be £3 or £4 a year. That is not a trivial matter for an individual ratepayer, but it is trivial when we compare it to the cost of the drainage to the whole country. No one has the right to say that the cost of the maintenance of the rivers to the country, to the ratepayers, is going to be a trivial matter. The Parliamentary Secretary was unwise in adverting to the subsequent expense on the county councils because it has nothing to do with this amendment. The question before us is whether an appeal board should be set up. I think, in view of what the Parliamentary Secretary has said — that the cost to the ratepayers will be small — and of Deputy Allen's assertion that it is going to be very high, that these statements make it all the more necessary why we should have an appeal board.
Mr. Smith: I object to any Deputy saying that there is a provision in this Bill which it does not contain. We are  not providing in this measure that when drainage districts are handed over to the local authorities, these districts will be maintained in a better condition than that in which they were handed over and, therefore, we are not imposing at the moment this fabulous amount for maintenance to which Deputy Allen has referred. The estimated cost of the construction work is £7,000,000. The construction visualised in this measure will take a long time and, therefore, the estimated amount of maintenance that I have given the House will not have to be met in full until such time as the job has been completed, which, as I say, will be a long time ahead. I object, therefore, to any Deputy, no matter on what side of the House, discussing this matter on the basis of something that is not in the Bill.
Mr. Bennett: The Parliamentary Secretary is equally culpable.
Mr. Smith: When I first came to read the report of the Drainage Commission, I was, like everybody else, more or less enamoured of the idea.
Mr. Hughes: The Parliamentary Secretary was not in the Office of Public Works then.
Mr. Smith: Just think of the amount of thought that has been given to this whole question by those responsible for framing these proposals as compared with the time the Drainage Commission had to devote to it.
Mr. Bennett: We appreciate that.
Mr. Smith: There is no comparison. I am not saying this by way of criticism of the men and women who formed that Commission, but they had not the same amount of time at their disposal to consider the wisdom and effect of every one of their recommendations. When we received these recommendations and when we proceeded to give effect to them, as we have given effect to the great majority of them, we discovered a particular recommendation, which, in our opinion, if effect were given to it, would have certain  disastrous results. I said last night, and I still claim, that it would have no effect other than to clog up the whole machine and slow down progress and prevent us from getting on with this very useful and necessary task. There are members of local authorities in this House——
Mr. O'Leary: What powers will the local authorities have?
Mr. Smith: There are members of local authorities in this House who know that even though there is some little slight injustice done as a result of a decision of the drainage authority as between the local authority and the State——
Mr. Hughes: Why suggest it is a slight injustice?
Mr. Smith: There could be a slight error of judgement on the part of the appeal board you are suggesting.
Mr. Cosgrave: In any human affairs there is bound to be error.
Mr. Smith: The suggestion is to provide an appeal board consisting of the following: a High Court Judge, a member nominated by the commissioners, and a member nominated by the General Council of County Councils. From whom would they get assistance and advice of a technical kind in order, as I put it last night, to enable them to decide as between the technical officials attached to the drainage authority and the point of view that was being advanced by the local authority?
Mr. Hughes: One of them would be nominated by the commissioners, and surely they would put an engineer on the board.
Mr. Smith: How do you know whether they will or not?
Mr. Hughes: I am sure the Board of Works will.
Mr. Smith: If they put an engineer from the Office of Public Works on the board would you not think that his view, naturally, would be the view of the technical advisers to the drainage  authority and, therefore, naturally, he would favour the engineering arguments advanced by that authority? Is it not clear and obvious that the only technical people on whom this court of appeal could rely would be the technical people who would be associated with the drainage authority?
Mr. Coogan: The amendment suggests that the General Council of County Councils should nominate a member of the board.
Mr. Smith: Whom would they nominate?
Mr. Coogan: Surely a man experienced in these affairs, such as the chairman of the drainage board.
Mr. Smith: Deputy Coogan knows that it is all right to be experienced. We all have some experience but what use would it be to us in determining highly technical questions?
Mr. Coogan: Of course, it would be of use.
Mr. Smith: Very little.
Mr. Hughes: The Parliamentary Secretary is suffering from an extraordinary complex in this matter.
Mr. Smith: Pardon me. I have not finished my case. Does the Deputy want to ask me a question?
Mr. Hughes: Very well. I will have time enough. I am not in any hurry.
Mr. Smith: Go ahead now.
Mr. Hughes: I want to say that the Parliamentary Secretary is representing to the House that this is a highly complicated and extraordinarily technical problem. Any practical man in the country would know a great deal about the cleaning up and maintenance of drains once the rivers are deepened and all that sort of thing. I admit that there is a technical job. Now we are talking about maintenance, and that involves, almost to 100 per cent., merely trimming and dressing up the drains all over the country. That is not a highly complicated and highly technical operation. When I suggested  to the Parliamentary Secretary that there was an agricultural aspect to this matter, he would not even contemplate that proposition. It would appear that you are a democrat in this House only so long as you are in opposition. The moment you go into power in this country you become an autocrat of the first water. That is what has happened. When those people were on this side of the House they were great democrats, and anything done by their predecessors in office was absolutely undemocratic. If there was an undemocratic policy pursued in the first ten years of native government, it has been continued since.
We know there were some very strong supporters of the present Government on the Vocational Commission. That Commission vigorously condemned the trend in legislation towards handing over to bureaucracy complete and absolute control. The cleaning-up and maintenance of a few drains down the country is so highly technical that the ordinary man cannot understand it. What utter rubbish.
We want to ensure that there will be some court of appeal and that we are not going to set up an absolute autocracy in this country and be told afterwards that it was done by our own act, in our own Parliament. That is what we take exception to. We do not want Civil Servants to refer to the Act and say, “There is the law made by yourself. We are going to operate it in a cold-blooded fashion. There is no human aspect to this. It does not matter to us what it costs the people who have to foot the bill. They have to pay and that is all about it.” We want to see that there will be some court of appeal. The people that this House saw fit to set up as a Commission to consider this problem of national drainage — and I think we should have some respect for their ability in that respect — thought it wise and proper to have a court of appeal. I would suggest to the Parliamentary Secretary that it is wide open if there is no court of appeal and that at any future date, some Government — it may not be this Government — might use this Bill as a means of easing an unemployment problem. There might be far too many  men employed and the local ratepayers would have no redress but would have to pay the rate.
A local authority that engages the commissioners to maintain local drainage works has a right to say whether, in their judgement, the work is being efficiently done or not. If they think the work is inefficiently done they should have the right to question it in some court of appeal. We are told in later sections that if there is any litigation  the commissioners' certificate will be final. Nobody is to dare question it, because it is a technical matter, as no one understands how water flows down a stream but engineers connected with the Board of Works. That is an attitude I cannot comprehend. Are people in the country to be told that they know nothing about gravity? I consider the attitude adopted by the Parliamentary Secretary to be unreasonable — utter rubbish.
The Committee divided: Tá, 20; Níl, 45.
|Bennett, George C.
Burke, Patrick (Clare).
Doyle, Peadar S.
Halliden, Patrick J.
McFadden, Michael Og.
O'Donnell, William F.
Redmond, Bridget M.
Burke, Patrick (Co. Dublin).
Crowley, Fred H.
Fogarty, Patrick J.
Gorry, Patrick J.
Lydon, Michael F.
O Briain, Donnchadh.
O Ceallaigh, Seán T.
O Cléirigh, Mícheál.
O'Loghlen, Peter J.
Ruttledge, Patrick J.
Ryan, Mary B.
Skinner, Leo B.
Tellers:— Tá: Deputies P.S. Doyle and Bennett; Níl: Deputies Kissane and O Briain.
Amendment declared lost.
Mr. Hughes: I move amendment No. 65:—
Before sub-section (4) to insert a new sub-section as follows:—
A copy of the award shall be sent to whatever local authority or local authorities are concerned and shall be available at their offices for inspection.
This merely asks that a copy of the award should be sent to the local authority and be available for inspection at their offices.
Mr. Smith: I have no objection to the amendment. We will see if we can cover the point.
 Amendment, by leave, withdrawn.
Section 19 agreed to.
Mr. Smith: I move amendment No. 66:—
In sub-section (1), page 15, line 11, to insert the word “navigationrights” before the words “and other”.
This is a drafting amendment.
Amendment agreed to.
Mr. Smith: I move amendment No. 67:—
In sub-section (2), page 15, line 15, to insert the word “navigation-rights” before the words “and other”.
This is a similar type of amendment.
Amendment agreed to.
Section 20, as amended, agreed to.
Mr. Hughes: I move amendment No. 68:—
In sub-section (1), line 23, after the word “shall” to insert the words “not later than twelve months after the passing of this Act”.
The section sets out that the Minister shall by Order appoint a day to be the appointed day for the purposes of this Act. We have no guarantee as to when that day will come. It may be in the near future or may be postponed for a long time. I think the House should set some limitation to the period for which the fixing of the day may be postponed, particularly when it is proposed to deal with arrears, which are becoming an acute problem in many parts of the country. It is undesirable that people generally should get to know, when this Bill is passed, that discretion in the matter of collection of arrears in whole or in part is left to a local authority. I do not know whether the period of a year which I suggest is too long or too short, but there should be some limitation.
Mr. Smith: We are hoping to be able to have the necessary inspections  made of all these areas, as we must in order to be able to certify as to their condition, inside a year, but I would not attempt to fix any statutory provision. We would naturally be anxious to have the work done within a year if we could, but I will not have any limit imposed, because one never knows what may arise.
Mr. Hughes: So far as I, representing Kildare, am concerned, and Leix-Offaly Deputies, I am sure, are concerned, we have a Barrow drainage arrears problem. We are being pressed for arrears, and I suppose it is not peculiar to that particular area. It may be a problem in many other districts. The passing of this legislation will accentuate the problem, and the sooner we bring this measure into operation the better.
Mr. Smith: The Deputy may take it that we shall try to put ourselves in a position to fix the appointed day within six months, but I am not going to commit myself to the extent of tying my hands.
Mr. Hughes: Is it the intention to have an appointed day for the whole country?
Mr. Smith: Yes, and that is our difficulty. We shall have to inspect every district, whether in charge of trustees or boards, which will be transferred to the local authority on a day to be fixed.
Mr. Hughes: The whole country will be treated as one unit?
Mr. Smith: Yes.
Mr. Hughes: Will the Parliamentary Secretary give any assurance to the House in the matter?
Mr. Smith: We ought to be able to do it in about a year.
Mr. Hughes: Everything possible will be done to expedite matters?
Mr. Smith: Yes.
Mr. Hughes: It may happen before a year?
Mr. Smith: It might.
Amendment, by leave, withdrawn.
 Section 21 agreed to.
Amendments Nos. 69, 70, 71, and 72 not moved.
Section 22 agreed to.
Mr. Smith: I move amendment No. 73: —
In sub-section (2), page 15, line 55, to delete the words “the responsibility for” and on page 16 to delete all from the word “become” in line 1 to the word “councils” in line 3 and substitute the words “be transferred, as on and from the appointed day, to and become the responsibility of the council of the county or the councils jointly”.
This is a drafting amendment.
Amendment agreed to.
Amendment No. 74 not moved.
Mr. Hughes: I move amendment No. 75:—
To delete paragraph (f) of sub-section (2), lines 29-44, page 16.
An Leas-Cheann Comhairle: The Deputy might move to report progress.
Mr. Smith: I gave Deputy Norton an undertaking to recommit on Report Stage for the purpose of dealing with amendments which he did not move. I wonder if the House would agree to do the same for all the amendments and give me the Committee Stage now?
Mr. Hughes: It is a very unusual procedure.
Mr. Smith: The point is that I would get my Committee Stage. If we continue to deal with the amendments on Committee Stage when we return, I shall have to recommit for Deputy Norton in any case.
Mr. Cosgrave: There is one very drastic amendment which the Parliamentary Secretary has tabled which we should like to be allowed to discuss.
Mr. Smith: It can be discussed in the same way as on Committee Stage. The Deputy will have the same opportunities.
Mr. Hughes: The position is that if we recommit this Bill at this point, we shall have to start at Section 1 and work up to this point when we resume. We cannot start again where we leave off.
An Leas-Cheann Comhairle: If the Bill is recommitted for certain amendments, the sections cannot be discussed.
Mr. Hughes: The whole Bill is recommitted.
An Leas-Cheann Comhairle: That is a completely new Committee Stage.
Progress reported; Committee to sit again.
The Dáil adjourned at 9.5 p.m. until 3 p.m. on Wednesday, November 8th, 1944.
|Last Updated: 18/05/2011 20:36:33||Page of 4|