Committee on Finance. - City and County Management (Amendment) Bill, 1954—Committee Stage (Resumed).

Thursday, 21 April 1955

Dáil Éireann Debate
Vol. 150 No. 2

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Sections 7 to 10, inclusive, put and agreed to.

An Leas-Cheann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  I might point out that amendments Nos. 21, 22 and 23 are similar to amendment No. 20 and that a decision on amendment No. 20 should cover the others.

Amendments Nos. 20, 21, 22 and 23 not moved.

Section 11 put and agreed to.

Minister for Local Government (Mr. O'Donnell): Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I move amendment No. 24:—

“In sub-section (4), to delete ‘(whether permanently or temporarily)’ in lines 40 and 41 and substitute ‘permanently’ and to delete ‘(permanently or temporarily, as may be appropriate)’ in line 43 and substitute permanently’.”

This is merely a drafting section to clarify the meaning of sub-section (4) of the section. An Order cannot be made unless the office of manager in one of the counties is vacant. Sub-section (4) provides that if there is a permanent county manager in the other county he will automatically be appointed as manager for the second grouped county as well, on the commencement of an Order under section 12. If, on the commencement date, there is a temporary manager in each of the two counties it will fall to the Minister to terminate the appointment of one of them and to appoint the other as temporary manager for the two grouped counties under the provisions of Section 5 (10) of this Bill. As I said at the outset, this is merely a drafting point and I would ask the House to accept it.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  When the Second Stage of this Bill was being discussed——

An Leas-Cheann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  We are now discussing the amendment.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  The amendment does not quite meet the point raised on the Second Stage. For instance, the county borough manager and the borough of Dún Laoghaire manager happen to be the same person. If he retires under the recent Local Government Bill then you have two vacancies caused by the retirement of the same man at the same time. What does the Minister do there? When the Local Government Bill, which is now with the Seanad, becomes law, the manager will have reached the retiring age and if he wishes to retire or if he has to retire you have two vacancies.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Could I refer the Deputy [292] to Section 14 of the present Bill? It would clarify the position to which the Deputy refers.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  Will it be dealt with on Section 14?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  It will.

Amendment put and agreed to.

Section 12, as amended, put and agreed to.

Question proposed: “That Section 13 stand part of the Bill”.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  Is not this the section we discussed in the Second Reading, where if one wants to associate itself on a particular thing with the other and they both make the request, the Minister may grant it—it is not mandatory on him to do so and he need only do so if he chooses to meet the request?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  The Deputy will appreciate that the Minister must consult with the Minister for Health and the Minister for Social Welfare, so “may” really is the operative word at the moment.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  Subject then to their concurrence?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Yes.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  That is all right.

Question put and agreed to.

Amendments Nos. 25 and 25a not moved.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  We have no authority to move amendments put down by other Deputies.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  It is very unlike Cork not to be represented here.

Section 14 agreed to.

Mr. H.P. Dockrell: Information on Henry Percy Dockrell  Zoom on Henry Percy Dockrell  I move amendment No. 26:—

[293] Before Section 15 to insert the following new section:—

Where in the case of the Corporation of Dún Laoghaire—

(a) the said corporation, by resolution declare that Section 7 of the County Management Act, 1940, shall not apply to the said corporation, and

(b) the Council of the County of Dublin, on the day on which such resolution is passed or on a day within three months thereafter, by resolution concur with such declaration—

(i) the Minister may by Order determine that the said Section 7 of the Act of 1940 shall not apply to the Corporation of Dún Laoghaire, and

(ii) upon the making of an Order under sub-paragraph (i) of this paragraph, the said corporation shall appoint a suitable person to be manager for the borough of Dún Laoghaire.

This amendment seeks to amend Section 7 of the County Management Act, 1940, which provides that the county manager shall by virtue of his office be the manager of every elected body within such county. The intention of the amendment is to permit the appointment of a whole-time manager for Dún Laoghaire.

For many years past Dún Laoghaire has sought county borough status, an increase in area and a whole-time manager. This Bill permits Dublin City and county to degroup. It also gives them separate managers and I see no reason why it should not give Dún Laoghaire a whole-time manager. Dún Laoghaire, on the basis of area, population and poor law valuation, exceeds all other county boroughs except Dublin in some respects and some of them in all respects. As regards poor law valuation, Dún Laoghaire is second with £270,000 in the current year, being exceeded only by Cork City with £276,000. In population it is third on the 1951 figures and in area it is first with 4,179 acres.

[294]Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I have a considerable amount of sympathy with Dún Laoghaire and to show my sympathy I am prepared to appoint a separate assistant county manager for the borough. As legislation stands at the moment, separate managers may only be appointed for county boroughs. I am prepared to give them an assistant for themselves. If and when Dún Laoghaire Corporation make application for the extension of its boundary and for county borough status, I will be prepared—in conjunction with my colleagues, particularly the Minister for Health and the Minister for Social Welfare—to consider favourably such a proposal. Of course, such ad hoc legislation would provide for a separate manager for Dún Laoghaire. I think that should satisfy the Deputy and the House.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  I rise to support Deputy Dockrell's amendment, but not for the reasons given by him. I support it for the reason—which has been fortified by what the Minister said— that we in Dublin, who have the status sufficient to warrant us having a county manager of our own, want to have an end to this business where our manager is also the manager for Dún Laoghaire. If the Minister says that he is prepared to appoint an assistant manager full-time there, he is assistant to whom? Assistant, of course, to the manager in the City of Dublin.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Not necessarily. He might be assistant to the county manager.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  If the Minister is prepared to say now that Dublin will be entitled to have its own city manager for its own exclusive use, I am quite satisfied to allow Deputy Dockrell, if he wishes, to accept the undertaking the Minister has given with regard to the future status of Dún Laoghaire. He and I agree that the present system is a bad one. You have two neighbouring authorities that sometimes have interests in conflict. Our manager is manager of three authorities, all three neighbouring and all three sometimes in direct conflict over certain matters.

[295]Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  The Deputy will appreciate that the section we have just passed deals with that and that I am in full agreement with him.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  Does it mean that we will have our manager exclusively?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Once the city and county request degrouping, then the Minister, in conjunction with his colleagues, may sanction such degrouping and if they do Dún Laoghaire will have a separate assistant manager under the county.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  That is fair enough.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  The decision on amendment No. 26 covers amendment No. 26a.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  What are we taking now? I did not catch the order.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  Is it not in order for Deputy Mrs. O'Carroll to get in on that amendment now?

An Leas-Cheann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  Deputy Mrs. O'Carroll just asked a question. She gave no indication that she wants to get in on it.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  She has an amendment.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  This amendment came up sooner than we thought it would. In the absence of Deputy Desmond, I intend to move it. When I came in, Deputy Dockrell was speaking and I thought it was on our amendment at first. I would like to move it, as I was one of the signatories to the amendment.

An Leas-Cheann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  As the two amendments were similar I understood that they were being discussed together and a decision on one would cover the other.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  We did not withdraw our amendment on the basis that they were being taken together.

An Leas-Cheann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  Very [296] well, then, the Deputy may move the amendment.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  I move amendment No. 26a:—

Before Section 15 to insert a new section as follows:—

(1) Section 7 of the Act of 1940 is hereby amended in so far as it is declared that on and after a date to be prescribed by the Minister the County Manager for the County of Dublin shall cease to be the manager for the Borough of Dun Laoghaire.

(2) Upon the passing of this Act the Minister shall in accordance with the provisions of sub-section (1) of this section prescribe a date, not being sooner than three months after the passing of this Act, on which this section shall come into effect.

(3) Upon the Minister having prescribed a date in accordance with sub-section (2) of this section the corporation of Dun Laoghaire shall proceed to appoint a suitable person to be manager for the Borough of Dun Laoghaire.

I will not go over the ground covered by Deputy Dockrell and Deputy Briscoe, as the Leas-Cheann Comhairle says the amendments are the same. An important factor in this amendment is that this is the unanimous decision of the Corporation in Dun Laoghaire. They are the people who want this county borough status and their own manager. Surely if these people are elected by the ratepayers of Dun Laoghaire they are also entitled to decide in the final analysis how the money should be spent and how the services should be administered. For that reason I am prepared to challenge a division on our amendment.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  It is only fair to Deputy Mrs. O'Carroll that I should explain that the amendment as put down would not give Dun Laoghaire county borough status. Until such time as it gets county borough status it cannot have a separate manager. I have explained to the House and to Deputy Dockrell that I am prepared at this stage to give an assistant manager [297] to Dun Laoghaire. If and when the question of extending the boundary of Dun Laoghaire and declaring it a county borough comes up, when such legislation is before the House—it will, of course, be ad hoc legislation—we can also provide for the appointment of a city manager, but the amendment as framed would not give the Dun Laoghaire Corporation county borough status and, without that, we cannot give it a city manager.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  I take it that, in spite of the fact that the Minister knows what is intended by the amendment, because of faulty drafting or not quite accurate wording, he is misinterpreting it.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Far be it from me to make any such suggestion. I do not wish to make any such suggestion. What I suggested to the House is that we cannot give Dun Laoghaire a separate city manager until it becomes a county borough. I hope I have made myself clear.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  Even if the amendment is passed.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Even if the amendment is passed, we cannot, and even if the Deputy were permitted to amend the amendment. Unfortunately, until it becomes a county borough, it cannot be given a city manager, but I am prepared to consider favourably such ad hoc legislation when it is later introduced. I am not trying to quibble about this matter. I am with the Deputy and the movers of the amendment, but it just cannot be done under this amendment. Far be it from me to suggest that I would take advantage of technicalities in dealing with Dun Laoghaire Corporation or with the movers of the amendment.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  I take it that the Minister would allow us to amend the amendment, to put it down for next week and then put it to a vote.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  That cannot get you anywhere. Until ad hoc legislation is introduced to declare Dun Laoghaire a county borough, no matter how we amend it, we can do nothing about it, [298] but I am prepared to consider favourably such legislation. It is not, however, before the House.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  Could I ask the Minister a final question?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Certainly.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  Would it have been possible when drafting the Bill to provide for making Dún Laoghaire a county borough?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  In my opinion, no.

Mrs. O'Carroll: Information on Maureen O'Carroll  Zoom on Maureen O'Carroll  Then I have no alternative but to withdraw the amendment.

Amendment, by leave, withdrawn.

Section 15 agreed to.

Question proposed: “That Section 16 stand part of the Bill.”

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  Would the Minister explain the meaning of Section 16?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Though the section looks slightly involved, it is not, in fact, involved. It is not a method whereby professional men may be sued for damages. Sub-section (2) of Section 61 of the Local Government Act, 1925, provides that whenever a proposal is made at a meeting of a local authority to do any act, matter or thing in consequence of which an illegal payment is to be made out of the funds of the local authority, or a deficiency or loss is likely to result in such funds, it shall be the duty of the responsible officer of the local authority to make objection and to state the grounds of his objection. If a decision is taken on the proposal, the names of the members present and voting for and against the decision and abstaining from voting on the decision must be recorded in the minutes of the meeting.

In sub-section (1) of that section, “responsible officer” is defined as meaning the secretary, clerk, resident medical superintendent or other chief executive officer of the local authority.

[299] The provisions of this section are being replaced in Section 16 of this Bill to bring them into line with the management system. Under the new section, whenever a proposal is made at a meeting of a local authority to do anything (a) which is a reserved function or is a matter which is covered by a resolution under the requisition section, Section 4, and (b) in consequence of which an illegal payment is to be made, or a deficiency or loss is likely to result, the manager, or, in his absence, such officer as may be designated by him, must object and state the grounds of his objection, and if a decision is taken on the proposal, the names of the members present and voting for and against the decision and abstaining from voting are recorded in the minutes.

Sub-section (3) provides that where the names of the persons voting for a decision to do any act, matter or thing are recorded in the minutes of the meetings, those persons and no other person shall be surcharged on any surcharge or charged on any charge that may subsequently be made as a result of the decision. Section 20 of the Local Government (Ireland) Act, 1902, as amended by Section 61 of the Local Government Act, 1925, provides that:—

“At the audit of the accounts of any public body, the auditor shall charge against the member or officer of such public body the amount of any deficiency or loss incurred by his negligence or misconduct, or of any sum which ought to have been, but was not, brought into account by him and shall, in any such case, certify the amount due from him.”

The effect of sub-section (3) is to fix the responsibility on the members of the local authority, and on them alone, whenever they vote in favour of a proposal to which objection has been made under sub-section (1). It is necessary to fix responsibility on them because of the wording of Section 20 of the Local Government (Ireland) Act, 1902. Otherwise, the manager who signs the advice note authorising the payment could be charged by the auditor. It is merely to fix the responsibility on those voting.

[300]Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  And to charge them?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Yes.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Provided the objection is pointed out.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Yes, in fairness to everybody concerned.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Does that objection have to be backed up by legal opinion or is it to be the opinion of a particular officer?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  If an officer gives the advice, he becomes responsible. That is the position. It is then a matter for clarification afterwards, as to who was right and who was wrong. It is really a question of fact and not of law.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  On a point of order, I think there has been an oversight. There was an amendment circulated to-day which is supposed to be amendment No. 26b, to insert a new section before Section 16, in Deputy Kyne's name.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Perhaps the Deputy would hear the Leas-Cheann Comhairle on that.

An Leas-Cheann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  Amendment No. 26b was ruled out of order.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  The grounds being?

An Leas-Cheann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  That it was not relevant to the Bill, and the Deputy was informed accordingly.

Mr. Briscoe: Information on Robert Briscoe  Zoom on Robert Briscoe  I did not know that.

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  That is correct. Under the County Management Act, as I understand it, it is the manager, and the manager alone, who may be surcharged for making an illegal payment. Under the Management Act it is the manager who may be surcharged for making illegal payments. It is proposed now to make members of the local authority——

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Once it is pointed out to them.

[301]Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  No payment can be made unless the manager seeks authority to pay. Is not that so?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  If the Deputy would look at Section 4 of the Bill where they may requisition.

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  That is just a point I want to raise. There was a lot of talk about the great democratic powers it was giving back to the local authorities. We were led to believe by the Minister and by those who support him that the council in future can requisition managers to do almost anything within the law that they were empowered to do, to get a particular job done. Under Section 16, if the local council or the county council proposes to do a certain thing, the engineer, for instance, may say: “I have allocated all the money that was provided for roads this year for something else, and if the council decides to spend £500 in having this particular job done, I want to warn you that it is illegal to do that, and you will be surcharged.” This is giving greater powers to the officials than ever they had. If there is a deficiency——

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  The Deputy does not appreciate what I am doing in the Bill.

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  You are giving with one hand and you are taking away with the other.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  The Deputy does not want to hide under the skirts of the county manager, does he?

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  I know about the skirts of the manager all right, but under the section you are giving with one hand and taking away with the other.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I am giving them more powers, and they must accept more responsibility. That is all.

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  Let the Minister be quiet. Section 4 “Requisition that a particular thing be done,” says:—

“Subject to the provisions of this section, a local authority may by resolution require any particular act, matter or thing specifically mentioned in the resolution and which [302] the local authority or the manager can lawfully do or effect to be done or effected in performance of the executive functions of the local authority.”

It goes on to say what procedure is to be adopted. It is a very long section.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  But “local” is the operative word.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Yes.

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  In it, the council can order a manager to have particular works carried out, whatever they may be. Supposing the council comes along in the month of June and orders the manager to have particular works carried out, the county engineer can say: “I have allocated whatever money was provided by the council for other works,” although it is only three months after the start of the financial year and there is no other money to carry out the work that the council want done. It will make a deficiency or deficit in the fund. Therefore, the members of the council voting to have that piece of work carried out can be surcharged. It is nullifying 100 per cent. I think there is no doubt about that.

In sub-section (1) (a) of Section 16, Section 4 is specifically mentioned, and it nullifies the power given to the council. There is no doubt about that. Also, the principle in this whole thing must be wrong, because no moneys can be paid by the local authority without the authority of the manager. The council has no power under any Act to force him to make any payment which he considers illegal.

Why bring in the council members into this at all? That is what I cannot understand. There is no power vested in any council at the moment to force the manager to pay out moneys illegally. Under the 1940 Act, the manager was held responsible and could be surcharged. Now the onus is going to be put on the local authority, and they are going to be surcharged. I would like to suggest, apart from paragraph (a) of sub-section (1), the whole principle of this section is something which I am surprised the Minister [303] introduced here. Some of us know that an agitation has been going on by managers since the coming of the 1940 Act to have the onus removed off their shoulders, that they should not be surcharged under any circumstances. We know that. Now this is brought into a Bill which is supposed to be giving back powers, and the members of the local authority who have no responsibility, or who are not being given any responsibility in this Bill for making of payments where they will create a deficiency in the fund, will now be surcharged.

A manager, principal officer or accountant, can at any time tell the council that a payment will create a deficiency in the fund, even if the council authorises them to get a further overdraft. If they did not want to do a job that the council wanted carried out they could always plead that it would create a deficiency in the fund. Any additional work not provided for in the original estimates can be said by the manager, or by the county engineer, or some other principal officer, to create a deficiency in the fund. There is no doubt about that. Why remove responsibility from the shoulders of the managers who are responsible for all payments?

This is to nullify, and I am surprised at the Minister introducing a section to nullify something when it was hoped he was giving a little more power to the council. Why he should set out to nullify it, and put the onus on the members of a local council because an illegal payment may be made by the manager, I cannot understand. Who will make the payment?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Supposing the manager is requisitioned to do it?

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  They cannot force the manager to make an illegal payment.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Of course they can.

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  They cannot.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  All right that is the Deputy's view.

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  They cannot force the [304] manager to make an illegal payment. You point out a section in this Bill, or in the law as it stands, or in the law as it may be when this Bill becomes an Act, where a council can force a manager to make an illegal payment. They cannot. They do not sign the cheques or the pay orders. The officers are designated to make the payments. If they know it is illegal for them to make them, then it is they who should be surcharged and not the members of the local authority.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  I can go part of the way with Deputy Allen. Though I think that the phraseology of Section 4 does prevent this illegality matter, I am not very happy about paragraph (b) of sub-section (1) of Section 16 because added to the possibility of an illegal payment is “a deficiency or loss likely to result in or to such funds”. That seems to me to be very wide. That goes very much further than the possibility of an illegal payment. I would like to hear from the Minister exactly what he envisages here. As far as I can see the question of an illegal payment is sufficiently tied up.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  This is the usual auditor's phraseology.

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  The Dáil is a law-making authority.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  The Minister's explanation is not an explanation at all. The fact that it is the usual phraseology does not convince me of anything.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I hope the Deputy understands.

Mr. Sheldon: Information on William Alexander Sheldon  Zoom on William Alexander Sheldon  I am looking at it here. It is quite specific. The members of a local authority may make a proposal under Section 4 of the Act and may be quite convinced of their right to do so. They may be told by a manager: “This will produce a deficiency in the funds and if you persist you may be surcharged.” That goes very much wider than an illegality. I am entirely with the Minister in trying to prevent an illegal payment. That is something which a local [305] authority ought not to do. The Minister for Finance, his officials and the Government frequently involve the State in expenditure which causes a deficiency in funds and they have to borrow. I cannot see why a local authority should be in danger of being surcharged because they do the same thing. It seems to me to be creating a situation where the local authority can find itself completely stultified. In view of modern views on finance in regard to creating a deficiency in funds, what is the particular crime in that to lead to a surcharge? I think the Minister will have to find some much more precise argument on it than merely saying it is the ordinary phraseology which an auditor uses.

I am not at all satisfied. I think it is going wide indeed to hold a threat over a member of a local authority that he must listen to the manager and any other officer of the council who has only to say: “That is all very well but your proposals, if followed out, will mean a deficiency in the funds and you will be surcharged.” I do not see why a council should be tied up in that way. The Minister will certainly have to produce some better explanation than he has produced to satisfy me.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  I cannot see any necessity for the section at all, to be quite candid. In paragraph 1 of Section 4 the following words occur: “Which the local authority or the manager can lawfully do.” We are not empowered to move to do anything which the local authority cannot lawfully do. Paragraph (b) of sub-section (1) of Section 16 says: “In consequence of which an illegal payment is to be made out of the funds of the local authority.” How is the illegal payment to be made if the local authority cannot move to do anything that cannot be lawfully done? That is what I cannot understand.

In regard to the remainder of that paragraph, I think Deputy Sheldon hit the right nail on the head. Suppose a road is in a particularly bad condition and a council decides to expend £2,000 to put the road in order in the month of January when the funds are running out. Let us further suppose that the council unanimously agree to [306] put the road in order. The usual thing we do in the Cork County Council is to put the road in order.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I wish you would follow their advice in regard to Youghal Bridge.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  If the Minister wants to know more about Youghal Bridge we will discuss that on another amendment here in a minute.

An Leas-Cheann Comhairle: Information on Cormac Breslin  Zoom on Cormac Breslin  That does not arise on this section.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  I cannot help it if the Minister is disorderly. The Minister is endeavouring to drag in a red herring but I will stick to the salmon I am trying to land. The council decide that the road should be put in order at a cost of £2,000. According to this, the council cannot now move a Supplementary Estimate for that purpose. All the manager need say is that there will be a deficiency in the funds. I am objecting. I think this is a nonsensical section and that it should go out. I suggest that the Minister in his less exuberant moments would read the section himself when he will see that it should go.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  It is a pity the Deputy did not put down an amendment.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  There was no necessity to put down an amendment.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Even an amendment to delete?

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  There was no occasion for an amendment of that kind. The Minister clubbed a Labour man and a member of his own Party in regard to his proposals about Youghal bridge and he drove them into the Lobby yesterday when the division was carried by their two votes. He had nothing to be proud of in that.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Could we have from the Minister his own interpretation as to why this section was really necessary? Would the Minister also clear up one thing that sticks very much in my mind? Suppose there is an objection and the manager or his appointee gets [307] up and says he objects on some factual grounds? Suppose that at that particular time there is no proof available of that particular objection, what is the position of the council? Must they let the motion go by the board? What is their way out if the objection was not really genuine?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  The members of a vocational education committee, for instance, may be surcharged. We are now giving to the local authority wider powers. Under the 1925 Act, the secretary of a county council is the only person who may sound the warning, but here we are giving wider powers to the local authority than they ever had. We are providing that someone other than the secretary may sound the warning.

Somebody asked me for an example in regard to a deficiency in the funds. One example I would like to give is where a local authority accepts, despite the warning of the appropriate official, a tender which is not the lowest tender, which may involve a deficiency in funds.

Mr. Allen: Information on Denis Allen  Zoom on Denis Allen  That is a lame one.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  It is a lawful act in many ways and it may involve a deficiency in the funds. Once the warning is sounded, is it not up to the people who refuse to accept the warning to carry the baby and become responsible?

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Would not there be still this safeguard that, despite the fact that the local authority may do such an act, an illegal act, if you like, that does not end the matter; it is not finally and conclusively finished at that stage; it must go through the manager or some of his officials to be finalised? Since it is not finalised by resolution of the council, why this stop gap at this stage?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  The Deputy will appreciate that Section 4 would enable the council to requisition the county manager to do this?

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Is there no overriding sub-section whereby only a lawful act——

[308]Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Yes, but remember, the acceptance of a tender other than the lowest tender would be a lawful act but it might involve a deficiency in funds and there is an onus thrown on the appropriate official to point that out. Despite the fact that it is quite a lawful act and despite the fact that the requisitioning section is being invoked, there is an onus then thrown on the members, if they want to do that despite the warning sounded, that they must accept more than the warning—they must accept the responsibility.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  There is another point. Is it not a fact that in the publication of an advertisement seeking tenders by a local authority the final sentence is “The lowest or any tender need not necessarily be accepted?”

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Yes.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  What is the purpose of such wording in future if a local authority may not, by resolution, accept any tender other than the lowest tender?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I would refer the Deputy to another section—Section 15 —on the question of tenders which gives the local authority the power to make regulations governing the acceptance of tenders.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  If they make regulations under Section 15 and under the section now under discussion do not contravene the regulations so made by themselves then, even though it may result in a loss, they are covered in law. Is that the position?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I am only quoting this as a lawful act which may involve a deficiency in funds.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Are there other acts or illegal acts?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  A number of them.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  If there was not a great number, why not designate them?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  There is a number of them but remember the auditor is the judge. That has been accepted down the years.

[309]Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  We must accept that the auditor will be the judge eventually but that is usually two or three years after the event takes place.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  We hope to speed that up by appointing auditors. We are trying to bring that up to date.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  That is only side-tracking the issue. A number of acts have been cited by certain Deputies. If certain requisitions were made for such things as repair of a certain stretch of road, surely that would not be regarded under this section as an illegal act despite the fact that it would cause a deficiency?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  No, it would not.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  I take it that, despite the section, any act which is a lawful act under other laws cannot become an illegal act under this section and that no loss or deficiency accruing as a result of such act can be surcharged on those performing the act. Would that really be the case?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  It would. The Deputy will distinguish between unlawful and illegal.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  I am trying to but it is only people like the Minister and his colleagues near to him who can distinguish these things properly. I am doing the best I can.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I accept the Deputy's remarks in the spirit in which they are made.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Assuming the section is necessary—I am not too sure that it is, even yet, but I am taking it on the basis that it is—I am trying to get it clear that such things as were cited already, such as the repair of a road which may arise possibly as an emergency, would not fall within the section and be considered an illegal act even though a loss will accrue.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  The Deputy may accept my word for that.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Anything that the local authority does costs money. I do not know anything that we have done that makes money.

[310]Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  The Deputy appreciates that where an officer comes in and warns the council against their own act which may involve a deficiency in funds, it would be very unfair that the officer of the local authority should be responsible for the surcharge.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Surely this point will arise then—if the manager or his appointed officer must sign some document or order or pay order in order to finalise this illegal transaction that we assume could arise under the section, the obvious course would be to leave this section out and the officer concerned, knowing the position, would not sign the order or carry out and finalise the act?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Then you may requisition him.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Yes, agreed, but if he does not act?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Then you may as well take Section 4 out of the Bill.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  If he does not act on that requisition because he knows it to be illegal, what can a council do to such an officer in such circumstances?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  Who is going to decide? I am giving the council power to requisition the officer to do a particular thing. Supposing the officer says: “I will not do it,” surely the section is futile, but if he says: “You are compelling me to do it, but I warn you against the results of your action. I warn you now. I must do it. That is the law. Section 4 gives you that power to compel me to do it. I am going to do it, but I warn you against the result of your own action,” surely it would be very unfair to suggest that the officer who has issued the warning should be responsible for the surcharge.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  He does not have to do it.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I am compelling him to do it under Section 4. He must do it. If that is not the case then Section 4 is useless and, as Deputy Joe Brennan said here, the kernel of the Bill is Section 4.

[311]Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  It would be without this added to it. If the officer concerned is directed or made to do a certain act and he refuses to do this act because he maintains it is illegal, surely he is entitled to stand on that refusal and still refuse to do it and, if he does stand on the refusal, no action can possibly be taken against him to remove him from office or any such thing.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  I am going to make him obey his employer, the local authority.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  I want to get from the Minister, if that is the case, what safeguard has the council from being told by an officer of that council that they cannot do a certain thing because it is illegal? What safeguard have we as local authorities, what answer have we to such a statement by our officer if he says: “It is illegal. If you do this you will be surcharged.”?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  You are taking it that the county officer or manager is a crook. You still have your legal adviser.

[312]Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Not exactly that. He may have his prejudices, as all of us have, and if he says “this cannot be done”, what is our redress?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  He can say: “Go to the Minister and ask the appropriate Minister.”

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  If that is the case, why not allow us to perform this act and let the officer object and come to the Minister?

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  And then who is going to take the consequences?

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Who is going to take the consequences? I move to report progress.

Mr. O'Donnell: Information on Patrick O'Donnell  Zoom on Patrick O'Donnell  The Deputy succeeded anyway, or rather the Opposition did, in holding it up.

Progress reported; Committee to sit again.

The Dáil adjourned at 10.30 p m. until 3 p.m. on Wednesday, 27th April, 1955.


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