Thursday, 27 June 1946
Seanad Éireann Debate
“() A copy of the report of any local inquiry under sub-section (1) of this section shall be sent to the rating authority concerned at least fourteen days before the issue of a notification under sub-section (2) of this section.”—(Senator Sir John Keane.)
Sir John Keane: When the train of my thoughts was broken last night by the intervention of Senator Ryan on a point of order, I was trying to develop the background of the past in relation to local government services and the prospects of the future in relation to which the whole of this Section 30 has to be examined. In so far as the past is concerned, I would not very greatly object to Section 30. I should like to know from the Minister how many times, within recent years, his Department has been confronted by a refusal to strike an adequate rate and how, in the absence of Section 30, he has acted?
 I would like to repeat that because, although I do not wish to be discourteous, I have asked so many questions that he has never answered that I would like to know how many times in the past, in recent years, the Minister has been confronted by a refusal on the part of the rating authority to strike an adequate rate, and how he has dealt with the situation? I imagine that such occasions have been very few, and that he has been able to deal adequately with such a situation under his existing powers. So far as the existing services are concerned, although I object to the principle, I would not be very much concerned at these new powers that he has taken, but I would ask Senators to have in their minds what are the prospects facing us with regard to the possible requirements of the Department of Local Government and Public Health.
In passing, I must refer to a Bill which has been before the Dáil for some time and which is, I understand, only held up for the moment owing to a certain dislocation in the personnel of the Minister's Department. Many members of the House will realise what the powers in that Bill are. The Minister takes power to order a local authority to provide and maintain a health institution of any size or character or with any equipment he may require. There is no provision for consulting such a local authority and there is no indication of the grant from central funds which such local authority is to receive. I ask the House to accept in general terms the statement that that is a complete departure from the spirit of local government as we have heretofore known it.
I do not mean to say that services have never been imposed on local authorities. I do not mean to say that there has ever been any resistance to the imposition of such services, but such resistance has never been strong and the requirements have been, in the main, moderate. Although there has been a steady tendency towards reaction, centralisation and dictatorship from the centre in local government, that has been slow and gradual and local authorities have got used to the change. They have usually been consulted  and they have accepted any new burdens that came their way. I remember when such offices as that of tuberculosis officer and public health officer were permissive. Some councils adopted those services and some councils refused to do so. When the idea had sunk in, those appointments were made mandatory. By that gradual method of approach, there was a general feeling of agreement and acceptance.
Sir John Keane: I submit that my remarks are entirely appropriate to the conclusions I have reached with regard to the amendment. I consider that we have to look at this section in relation to a completely different situation from that which confronted us in the past. We have to face a situation in which burdens of undisclosed and unknown magnitude are to be imposed on local authorities, whether they like it or not. In fact, the local authorities will have to accept the Minister's dictation in respect of services which, I think, the Minister will not deny will be of considerable magnitude.
Sir John Keane: I think that I have said enough on that point. I wish to ask the Minister what I have already asked him—can he give us figures with regard to the total rates raised in the past year, because I have been able to get from official sources only the return of rates for 1942-3. These are the latest figures given in the Statistical Abstract, the compilers of which have, no doubt, better access to official information than I have. I have seen figures showing that the burden has risen from £4,000,000 at the outbreak of war to £7,000,000 two years ago. I should like to know what the rates were last year. We are very much hampered in examining a section such as this by our ignorance of the burden  of rates imposed upon the local authorities.
In justification of the amendment which I am proposing, I ask the House to appreciate the difference between rates and taxes. In the main, taxes are paid out of profits. A person who has made no profits and who does not drink or smoke pays little or no taxes. Rates are of a completely different character. They are a charge on the primary producer. One has to realise that the imposition of rates without the consent of the local elected representatives places a very serious burden on our main industry—agriculture. Some of us who do not farm do not realise the significance of the matter. To a man who lives in a small house rates are a matter of little or no significance. When the burden is heavy, amounting to 10/- or 12/- an acre as a charge on the production of lands, I think the local authority require every protection before such burdens are imposed. In the past, these burdens were imposed by agreement. We are facing a situation in which such burdens are to be imposed by the ukase of the central Government on top of burdens which are at least—I am speaking without official information—100 per cent. higher than they were before the war. The Minister can correct me if I am wrong. Presumably, he has what we have not, the latest figures.
The Minister has power to impose in the future services of untold magnitude. He can come along and say to the local authority: “If you refuse to supply these services we are going to dissolve you, and appoint our own servants to impose rates on the production of our primary and most important industry, to impose trading charges, working expenses”.
That is a very serious matter indeed and the Minister proposes to offer as an excuse for such dictatorial action only what I can call the farce of holding an inquiry. I say it is a farce because under the present Bill the report of the local inquiry is not going to be published. The local authority is going to be abolished. That in itself may not matter very much but the manager who is under the direct orders  of the central authority is going to have a free hand to impose whatever rates he likes on our primary producers, mainly the members of the agricultural industry. I say that is an intolerable situation, a complete turn of the wheel from the basis on which local government was founded. Local government was founded on the idea of service through local elected representatives. It has passed a long way from that original conception of allowing responsibility to local representatives, initiative on the part of local representatives, the fixing of rates by local representatives and the fixing of services by local representatives.
Sir John Keane: Surely, Sir, I am giving the reasons why the report of any inquiry held before the local authority is abolished and the servants of the central authority put in, should be published? It is all leading up to that. I am leading up to the very serious state of affairs that will arise when the rating authority is abolished owing to its failure, in the opinion of the Minister, to strike an adequate rate.
Sir John Keane: I submit it is within the scope of my amendment. My amendment is very wide in its purpose but I think I have come to the end of my remarks in any case. Here we are in this position. Without cause stated, without trial, without any semblance of judicial procedure, the Minister, as head of the Department, is going to bring about a position which will enable him to impose what burdens he likes on the local authorities. Before he does that, surely in all reason it is fair that the local authority should have some knowledge of the report on which such high-handed action is likely to be taken. That is the purpose of the amendment, that before the Minister takes power to impose, through the county manager  what rates he and the county manager in association see fit, the local authority should know the grounds on which he is acting and that his report should be somewhat in the nature of a quasi-judicial document which will be published and available to the local authority before it is extinguished. I say the amendment is perfectly reasonable. The Minister will at present not publish any reports. There was a very disquieting case not long ago where the Minister acted on an undisclosed report and, as some quarters believed, in a manner contrary to the spirit of the report but that is only conjecture. I say if he wants to put himself right with the local authority and give an answer to the charges that are definitely being made that he is acting in an unreasonable manner, he should publish such reports before he takes action to extinguish a local authority.
Mr. Kingsmill Moore: The amendment proposed by Senator Sir John Keane goes considerably further than a more limited amendment to another section which stands in my name but, between them, they propose the only possible alternative to a state of affairs which is now regarded as profoundly unsatisfactory. Local government inquiries were originally introduced for two purposes. They were to inform the mind of the Minister as to certain facts which he might have difficulty in ascertaining by himself in the secrecy of his own office and they were made public inquiries in order that the public might have the same opportunity of knowing the evidence on which findings of fact could be based as the Minister himself might have. It was understood, and it has been believed for a long time, that the Minister would act upon the findings of fact made by the person whom he put in charge of the inquiry. That was the original object and for a long time it was the practice, but the state of affairs which now has arisen is that, rightly or wrongly, a public local inquiry is associated in the minds of most people with a previous Ministerial determination to achieve a certain state of affairs, an inquiry which has no effect whatsoever upon assisting the Minister to make up his mind, because that mind is already  made up, but which operates merely as a smoke-screen to conceal the fact that the action has been predetermined. I may be right or I may be wrong, but that is the belief of the majority of the citizens of this country, a belief which certain matters referred to by Senator Sir John Keane have helped to augment. I think that in the present juncture it is not open to me to lend point or pungency to my remarks by further references, so I shall omit them and deal with the matter purely in the abstract.
There has been an amazing amount of clotted nonsense talked on the subject of these inquiries and I regret to say that a very appreciable portion of it has emanated from the Minister's Department. It has been suggested that these inquiries are judicial inquiries. They are not judicial inquiries. It has been denied that they are quasi-judicial inquiries. They are quasi-judicial inquiries. They possess all the elements of a judicial inquiry except one and that is a very important one which, in fairness to the Minister, must be always stressed. They involve an investigation of facts by the well-known method which centuries of experience in courts of law have shown to be best for ascertaining those facts. They involve to a certain degree opposite parties. They involve considerations of law and they involve the presentation of views as to facts and views as to law by the persons concerned. In all those respects they are the same as a full judicial inquiry, but there the resemblance ceases.
In a judicial inquiry the determination of the action which arises out of the facts found rests with the person who is in control of that inquiry. In other words, it is the judge presiding in a court of law who not merely hears the evidence and decides the facts with or without the help of a jury, but it is he who determines what is to be done in view of those facts. That element is completely absent from these local inquiries. It is the Minister who decides what eventually must be done and, therefore, it is absurd to call them judicial inquiries and it is equally absurd to withdraw from them the name of quasi-judicial inquiries.
Now, what is the position? The  Minister is in complete charge of what is to be done. It is his discretion and it his responsibilty, and for that he answers only to the Oireachtas and, more particularly, to the Dáil. But in so far as the facts are to be ascertained by judicial methods the Minister ought to be bound by the findings of fact as found by the person who takes the inquiry, and that for two reasons. It is only the person who takes the inquiry and hears the witnesses who can form a correct view as to the reliability of the witnesses. It is only that person who knows when he is satisfied and when he desires further information, and even if the Minister were a trained lawyer it would not lie in his mouth to refuse to accept the conclusions of fact come to by an inspector or other person who is taking the inquiry.
Observe now that I say “conclusions of fact”. The evidence adduced is a completely different thing from the conclusions of fact which are based upon that evidence. The mere publication of evidence or the mere admission of the public does not cure the evils of the refusal to disclose what were the conclusions of the one person who can draw conclusions from the evidence which has been adduced before him. There can be very little doubt that when these inquiries were first inaugurated the intention was that just as the inquiry itself was public so the conclusions of the person acting in a quasi-judicial office should also be made public. It is quite obvious to everybody I think that the Minister will not come here and arrogate to himself any particular right to be able to judge evidence from a written print, but in fact unless those portions of the report which deal with conclusions of fact are published the Minister has a free hand to disregard anything which is put before him. I say that when these inquiries were first inaugurated, although there was no particular provision that the inspector's report should be published, I consider that that was probably the intention.
Let us now skip the years to a period when the matter had to be considered as to whether it was or was not desirable that the report should be  made public. Departments, not merely the Department of Local Government in this country, but other Departments in this country and other Departments in other countries have found it very convenient to keep reports secret. It was not a universal rule. Reports were published, but it was found convenient to have the power to keep them secret. The matter was considered at length by eight judges, the contention being the somewhat absurd one that as the law then stood no adverse decision could be given unless as an indispensable prerequisite the Department concerned published the report.
Now, that was an untenable legal proposition at the time, but of the eight judges who considered the question one only was of opinion that publication of the inspector's report would, as a general rule, be undesirable. Of the eight judges who considered it, three were in favour of the general practice of always publishing the inspector's report, four judges were of the opinion that though there should be no general rule that the inspector's report should be published, yet that in many cases, or in most cases, it was in the public interest and it was desirable that publication should be made. Now, that is a summary of the views of the eight judges who were concerned in Arlidge's case. The matter did not rest there, because it was referred to a select committee of exceedingly eminent publicists in England who considered, amongst other things, the question of Ministerial tribunals. That report, which recent events have made quite familiar to the people of this country, was the Donoughmore Report.
Now, that report, first of all, at page 73, gives substantially the definition of judicial and quasi-judicial tribunals which I have given in shortened form to the House. Secondly, it came to consider, after having put before it all the arguments for and against publication of inspectors' reports, whether it was or was not, all things considered, desirable. I would like to read a short extract from that publication. It deals, first of all, with the arguments for and against publication  and it comes to the following conclusions:—
“To these various arguments for and against publication we have given prolonged consideration and on balance have come to the conclusion that publication is right. By that we do not mean that the expense of printing a long report should in every case be incurred; but that in all cases the report of the inspector should be made available to the parties concerned and to the Press, and in important cases should be officially published by the Department responsible for the inquiry.
We fully appreciate the importance of not undermining the confidential relationship between the Minister and his officials and, however strong the case for publication in order to allay a public suspicion, we should, in the public interest, resist the demand for publication if any such consequence were, in our judgment, likely to ensue.
We have considered the question whether the inspector or other person who holds the public inquiry should be entitled to make a confidential report to the Minister in addition to the report for publication. In our opinion this should never be done in the case of an inquiry preliminary to a judicial decision. If judicial decisions are to be given by Ministers at all, it is essential that they should be given as far as possible in accordance with the forms of justice and that nothing should reach the ears of the judge behind the backs of the parties. Most inquiries, however, are held in connection with quasi-judicial decisions and in the case of such inquiries, we do not take so strict a view. Whilst we think that there should be no confidential reports on those matters of fact or law which come strictly within the scope of the report of the inquiry, we see no objection to the tendering by separate report or otherwise of such advice as the Minister may call for on any questions of Ministerial policy which may be involved.”
“We have heard the objection made to the publication of the inspector's report that it might lead to a demand for a hearing by way of appeal of the question upon which evidence was taken on the inquiry, and that, for obvious reasons, there ought to be finality in such matters. With the last point we entirely agree, but we do not fear any such results from the publication of the inspector's report. We do not recommend that there should be any further investigation of the facts after full public inquiry. Indeed, our view would be met if the inspector's report was communicated, with the Minister's decision, to the parties concerned.
In certain cases the Minister's decision may be influenced not only by reasons of law or public policy which lie entirely outside the field of public inquiry but by information which reaches him through channels other than the inspector's report. We do not think there is anything improper in this; but when it happens, and the Minister feels it right to make a decision which is against the weight of evidence of the inquiry, we are of opinion that he should, in communicating his reasoned decision, include the statement as to the nature of extraneous evidence by which he has been influenced and thereby remove, at least, one possible source of misunderstanding and decision.”
That was the view that was unanimously come to. It is the view that has been reinforced recently, because a habit has grown up in this Department, not merely of withholding the inspector's report which is sometimes done in England, because the general recommendation of publications has not yet been implemented in England, a habit not only of withholding inspectors' reports but of publishing a summary produced by a person or persons unknown which purports to be a finding of facts on the evidence. And those summaries are so mendacious, so totally devoid of any reasonable conclusion which any person with any  training or skill could possibly draw from the evidence, that the whole of public confidence in local inquiries is completely undermined. We are left to the conclusion either that the persons who drew up some of those reports and made those alleged statements as to what the evidence proves, have not got the ability of the ordinary office boy, or they have the ability and are deliberately abusing it to mislead the public.
I have had occasion to look at one or more of those documents. I can understand the Minister saying this: “I will go my own line, I am responsible, I have made up my mind to do so-and-so, and I will do it and give no reasons.” I can understand him saying: “Here are the findings of the facts by the inspector: there are other matters which I have taken into consideration which have influenced me and caused me to act.” But I cannot understand the withholding of the findings by the only person qualified to make findings and the publication of alleged findings of fact which to any person with any skill or training, are on the face of it not only merely misleading, but either deliberately distorted or completely incompetent. That is not playing fair to the public and is not playing fair to whatever persons may be in fault. That is a system which shows at once either that local inquiries should be abolished or the present system of holding them should be discontinued; and the only way in which the public can have any safeguard is that there should be a publication either of the inspector's report other than such portions of it as merely give advice or at least that there should be publication of those portions which are deliberate findings of facts by the person who was there and was qualified to judge.
Senator Sir John Keane has chosen the course in his amendment of desiring that the whole of the report should be published and he is probably right in asserting that he has the backing of the unanimous findings of the Donoughmore Report. For myself, realising the difficulties in which a Minister may find himself, I would not be prepared to press the matter on to that length, but I am prepared to press that in so far as facts are  found, they should be found by the person who hears the witnesses, and that those facts should either be binding upon the Minister as being the findings by the person best qualified to find, or if not binding on the Minister, they should be disclosed so that the public may know that the Minister has chosen to put his own interpretation upon the evidence or has chosen to neglect the evidence, or has chosen despite all the evidence, to take into consideration other extraneous matters for which he may have to be responsible to the Dáil and even to a certain amount of criticism in this House.
Mr. O'Dea: Before the Minister concludes, I would like to say that I have listened to Senators Sir John Keane and Kingsmill Moore on this question of the publication of a report of the inspector. We had that matter up before in this House and I do not think we got any further enlightenment on it that would help us to change our mind and the opinion expressed at the time. Senator Kingsmill Moore states that eight judges considered the matter and that three were in favour of the publication of the report, if I took him up rightly. Three out of eight decided that the report ought to be published.
Mr. O'Dea: That would throw a very big suspicion on the opinion of the three if they were in the minority, but apart from what any judge would hold in proceedings of that kind, I think we ought to approach the matter as people of common-sense purely and simply. We ought to consider it, first of all, from the point of view of the unfortunate inspector who has to go down the country and listen to the evidence of that public inquiry at which members of the Press are present. As a rule, those local inquiries catch the interest of the big majority of the people in the area. So great is the interest that the Press generally finds it necessary to publish a verbatim report of all the evidence given. If  there is any danger that the Press will not publish a verbatim report, I think it would be very easy for any interested persons to get a verbatim report, setting out word for word the questions and answers, cross examination, etc.
It is suggested that the inspector should give his findings of fact. What exactly does that mean? It would be very easy to give statements of fact if there were no contradiction in the evidence, but supposing that the evidence is given and contradicted and that an inspector reports to the Minister: “I find as a fact that such and such is the case” what does that mean? It is the same as saying: “I find that the people who gave evidence to the contrary were perjurers and that there was no truth whatever in their statements.”
Mr. O'Dea: I take the point of view of some of us down the country who read all these reports carefully word for word. “John Kelly swore so and so, Patrick Murphy contradicted him and the inspector found that Patrick Murphy was committing perjury.” That would be a dreadful position in which to put the inspector. I imagine that very few inspectors would like to hold inquiries if they were compelled to draw conclusions of that nature.
I admit it is very difficult for a Minister to judge by the evidence if he has not seen the persons giving evidence, but I take it he will be guided, firstly, by the evidence and, secondly, by the confidential report of his inspector, who will give reasons for believing some witnesses and not  believing others. I think that is the ideal way to hold an inquiry. The inspector can be more independent and can state his mind more freely than if he is liable to be called to book in the public Press or anywhere else for his findings of fact. There may be debates in the local council:—“The inspector disregarded the evidence of So-and-so, that respectable man we all know who would not tell a lie to save his life and the inspector held that that man was committing perjury.” There would be no end to the rows on that matter and I would not like to be the inspector. If we pass into law any section that would compel an inspector to publish his report, we will be doing a very serious injury to local government.
Mr. Kingsmill Moore: Every time a judge decides a case, he has contrary evidence before him. He decides one way or another and finds that such and such are the facts. That does not mean finding people are perjurers. The inspector merely finds that such and such things are proved and not others. There may be sometimes a reflection, but there is inherently no reflection.
Mr. O'Dea: That is perfectly right. Every man who takes up the position of district justice, Circuit Court judge, High Court judge or Supreme Court judge knows when he is taking the appointment that he will be called upon to find facts publicly in that manner. He enters into a contract with the State that he will do so and knows it will be his painful duty to do so when he takes the salary allocated to that office. That is not the position of a local government inspector who may have given up his appointment say, ten or five years ago, being doubtful as to whether he should take the appointment or continue in his position as auditor. He is probably undecided as to whether the salary is worth it. He certainly would not take up that appointment if he were put into this position of deciding whether some respectable people are telling the truth and others are committing perjury and having that published in the local and daily papers, having it debated in public councils and possibly brought  into the Seanad and the Dáil. I do not think his life would be worth living and I do not think any official would put himself in that position unless he had nothing else to do.
With regard to the officials at present in existence, I say now that if you put that responsibility on them you are committing a breach of contract, by asking them to do what they never contemplated, by asking them to do something unfair and unreasonable. I would ask the House not to place an undue burden of that nature on people who never contemplated that they would be called upon to carry the dangerous and ugly job of finding facts as between different people.
“(1) If, at any time after the rate in the pound of the rate for a local financial year has been determined by a rating authority, it appears to the Minister that such rate at such rate in the pound is likely to be insufficient to meet the part defrayable out of rates of the expenses to be incurred by the rating authority in that financial year in—
the Minister, after holding a local inquiry into the sufficiency of such rate, may require the rating authority either to revoke such determination and determine a new rate in the pound for such rate or (if by reason of any steps already taken for the making, levying or collecting of such rate, such a course is more convenient) determine a rate in the pound of a supplementary rate for that local financial year.”
Minister for Local Government and Public Health (Mr. MacEntee): Perhaps I might intervene at this stage to try to correct an impression which, perhaps, some Senators may have formed as a result of the speech of Senator Kingsmill Moore. It came to me as a surprise to learn that the report of the inspector in regard to a public inquiry had always been published, had customarily been published, and this particularly in respect of an inquiry held under the Department of Local Government.
Mr. MacEntee: I gathered that Senator Kingsmill Moore suggested that it had been the custom to publish the report of the inspector, but that gradually that had been replaced by the issue of mendacious summaries.
Mr. Kingsmill Moore: I do not want to create any confusion. My information is that, in the earlier days after the introduction of this system, the reports of local inquiries were frequently published. I do not say in this country, but in England. There is a statement in a book quite recently issued—and I think it was stated in a letter—that the reports are still sometimes published in England. As far as I know, for a very long time, local government reports have not been published in this country, though reports to the Minister for Industry and Commerce, on questions such as accidents, are customarily published. I will accept any correction from the Minister on that.
Mr. MacEntee: The latter are concerned with entirely different matters.  As there seems to be a conflict of opinion in the matter, perhaps I can do nothing better than to give the opinion of a very eminent lawyer.
Mr. MacEntee: Well, at least it is as good as the Senator can do. We have heard a great deal said in favour of one course: that three lawyers out of eight favoured one interpretation of the law, and that the others, I assume, favoured another interpretation of the law.
Mr. Kingsmill Moore: I was specific on that. There were three different views. One judge was against publication in general, three were in favour of always publishing, four thought that it would be generally desirable to publish but not desirable to have a rule in all cases.
Mr. Ryan: Would it not clear the air if Senator Kingsmill Moore would say whether the eight judges sat together? I gathered from him that there was one judge in the court of first instance, that there were three judges in the Court of Appeal and four in the House of Lords. Am I correct in that?
Mr. MacEntee: I must say that the Senator presented his case as a skilled but not ingenuous advocate. The suggestion has been made here that in some way—and it has been repeated by the Senator, unless I am unable to interpret correctly his meaning—that while the reports of these public inquiries were not invariably published, nevertheless the general custom was to publish them. Well, as a layman I can only set against that the opinion of a former Attorney-General and Lord Chancellor, Sir John, now Lord Simon, who, in a case which came before the House of Lords, of which Senator Ryan seems to have cognisance, said this:—
“The inquiry referred to is the ordinary local inquiry with which Parliament was familiar. The holding of local inquiries by the Local Government Board is directed by many statutes. May I say in parenthesis that they are held for many purposes—and it has always been the practice of the board to treat the reports of their inspectors on such inquiries as confidential documents for their own use.”
Mr. MacEntee: He was merely pointing out what the practice was. Are we going to assume that the Attorney-General—perhaps I should say the learned Attorney-General—tried to mislead the court by misstating the practice or the law?
“It is said that the report of the inspector should have been disclosed. It might or might not have been useful to disclose this report, but I do not think that the board was bound to do so, any more than it would have been bound to disclose all the minutes made on the papers in the office before a decision was come to. For the reasons I have given, I have arrived at the conclusion that the judgments of the Divisional Court and of Lord Justice Hamilton in the Court of Appeal were right, and that this appeal should be allowed with costs here and in the Court of Appeal, and that the order of the Divisional Court should be restored.”
“The practice of the board, like that of its predecessor, the Poor Law Board, had always been to dispose by correspondence of appeals even in important matters, ... and in treating the inspector's report as confidential it was only following an old and well-known practice.”
“The next proposition is this, that when a local inquiry has been held in compliance with statute, the person whose interests are affected is entitled to something more, namely, a disclosure of the views of the inspector written out by him, in jottings or otherwise, for the guidance or consideration of the Department. ... I incline to hold that the disadvantage in very many cases would exceed the advantage of such disclosure.”
“To set up any rule”—such as it is proposed should be set up by this amendment—“that that decision must on demand, and as a matter of right, be accompanied by a disclosure of what went before, so that it might be weakened or strengthened or judged thereby, would be inconsistent, as I say, with efficiency, with practice, and with the true theory of complete parliamentary responsibility for departmental action. This is, in my opinion, implied as the legitimate and proper consequence of any Department being vested by statute with authority to make determinations.”
“The second objection raised is that the respondent was entitled to see the report of the inspector, and that to withhold this document deprived him of a fair hearing in accord with the principles of substantial justice. The only word in the statute on which a claim to see the report can be based is the word ‘public’ prefixed to ‘local inquiry.’ This word is said to have been used for the first time in the 1909 Act. In my opinion, a public local inquiry  means no more than that an inquiry should be held in the locality and be open to the public.”
“The obligation on the Local Government Board to hold a public inquiry in the locality is to enable the facts on either side to be ascertained by oral testimony, subjected to the test of cross-examination if either party should so require, and to ensure, in this respect, a full opportunity to the appellant to be heard before dismissing his appeal against the decision of the local authority. In my opinion, the appeal (the appeal of the Local Government Board) should be allowed with costs here and below.”
“There is one point which needs notice—namely, the claim that the respondent was entitled, as of right, to see the report of the inspector who held the public inquiry. No such right is given by statute nor——”
“by an established custom of the Department. Like every administrative body, the Local Government Board must derive its knowledge from its agents and I am unable to see any reason why the reports they make to the Department should be made public. It would, in my opinion, cripple the usefulness of these inquiries. It is not for me to express my opinion of the desirability of an administrative Department taking any particular course in such matters, but I entirely dissociate myself from the remarks which have been made in this case in favour of a Department making reports of this kind public. Such a practice would, in my opinion, be decidedly mischievous.”
Mr. MacEntee: Will the Senator have patience? I had to listen at length to his speech which, in my view, was not directed to his amendment. I cite that judgment to show the House that the practice in this matter has been established over a very long period and that the law in the matter was finally determined so far back as 1914. What it is proposed by Senator John Keane to do here is to change the law and to impose upon a Minister of this State a disability which the legislature and the judiciary of Great Britain refused to impose upon Ministers of the Crown in that country.
Upon what grounds is it proposed to impose that disability? Upon a suggestion that there is some public disquiet in relation to the manner in which the Minister's power to come to a decision upon the evidence elicited at a public inquiry is exercised. I see no evidence of such public disquiet— certainly, no evidence of public disquiet on the part of the majority of the people. On the contrary, so far as the Dáil is concerned, this matter has been fully thrashed out and there has been nothing to suggest that there is any uneasiness in the public mind as to the manner in which the Minister has exercised his discretion and has discharged his responsibilities in relation to the administration of local authorities or institutions. The other ground upon which we are asked to adopt this amendment is that 14 years ago a commission or committee set up in Great Britain reported, in that rather careful and diffident manner which Senator Kingsmill Moore has made the House aware of, that, in some circumstances, the report of the inspector should be public.
Mr. MacEntee: If they said in all circumstances, it does not make any difference because the legislature which set up that committee has not approved of its findings and has not accepted its recommendations. What  is not good enough for Great Britain is, apparently, in Senator Kingsmill Moore's opinion, good enough for us. There never was a more preposterous example of trying it on the dog than this attempt to foist on this Government, this legislature and this State the findings of a committee set up in another country. These are the only two reasons adduced in support of this amendment—that the Donoughmore Committee had recommended it and that there was widespread public discontent and suspicion as to the manner in which the Ministerial powers had been exercised. I see no substantial evidence that such disquiet exists. I have told the House that the findings of the Donoughmore Commission have not been adopted in the country of their origin and I shall ask the House to reject this amendment and every other amendment which would compel a Minister to disclose any report made to him by one of his own officers.
If the House were to give effect to any such proposal, we should be at the end of representative Government here and we, certainly, should not be able to keep the Civil Service above and aloof from politics. A question would arise every time a Minister, who remember is responsible to the Dáil, ventured to form his own independent judgment in relation to evidence secured and obtained for him by an inspector. That is the inspector's function. He is appointed only to hear evidence, to collate it and to submit it to the Minister. That is laid down in the House of Lords decision. He may, for the Minister's guidance, express his own views. He may, for the Minister's further assistance, disclose to him matters that may not appear in the script as to the conduct and behaviour of witnesses. But the only thing that an inspector does in relation to a public inquiry is to elicit the facts. It is on that basis that the Minister must form his judgment.
It would be absurd to hold the Minister responsible to the Dáil if one of his officers happened to err in his judgment or happened to give a judgment which was inconsistent with the evidence. As I have said, if the evidence, and any memoranda which the inspector might attach to the evidence  in submitting it to the Minister, were to be published; if he were to express his views as to what the findings should be and the Minister, having read the evidence, came to the conclusion that the inspector did not attach sufficient importance to something that had transpired in the course of the evidence and the Minister, rating this more important than the inspector had done, overrode the inspector and made his own judgment in the matter, what would be the position if the subject were to go to the Dáil? Invariably, you would have a motion down condemning the Minister because he had not become a rubber-stamp for his own officer. You would have at once two parties aligned in the discussion—a party upholding the Civil Service and the Minister's officer and condemning the Minister, and a party upholding the Minister and condemning the Minister's officer. How can we in such circumstances keep the Civil Service, as we are trying to do, as we want to do and as I believe it is in the public interest to do, remote from the hurly-burly, the dissension and the controversy of political life? We should, by doing what Sir John Keane wants, politicalise the Civil Service beyond yea or nay. We would, I submit, fetter the Minister and make him less responsible than he is at present to the Dáil, because he could right away say: “It is not my opinion; the inspector recommended me to do this and I signed on the dotted line.” That is the position which would be created if this amendment were to be accepted.
There is another point that is overlooked here. That is, that these local inquiries deal with very many diverse subjects. You have the inquiry which is related to the proposed acquisition of property. You have, on the other hand, the inquiry which is related to the discharge of its responsibilities by a local authority, such as is contemplated here in Section 30. You have the inquiry which is related to the discharge of his duties by a particular official. You have inquiries related, say, to the technical efficiency of an engineering scheme. There are in relation to all these, many matters which would have to be considered. The Minister, no doubt, would be very  largely guided, I am sure, in relation to engineering matters, almost entirely by his engineering officers. He would be a foolish man if he ventured to override them. But when it comes down to the question of the efficiency or the inefficiency, the zeal or the negligence of a public body or a public officer in the discharge of his duties, the Minister must be the final judge because it is he who carries the responsibility for seeing that the local authorities administer the affairs of their functional areas satisfactorily. It is the Minister who has the responsibility for seeing that all the officers of such authorities, particularly those who are charged with the care and the assistance of the poor, discharge their duties zealously and honestly. There is no intermediary between the Dáil and these people except the Minister. It is the Minister who is responsible to the Dáil for seeing that these various agencies discharge their duties satisfactorily.
We have many instances of that in the Dáil when the Estimates for the Department of Local Government and Public Health are under consideration, because then what a public functionary does or does not, is charged against the Minister. It is the Minister who has to satisfy the Dáil that he is zealous in ensuring that these public officials will, as I have said, function efficiently and satisfactorily. The Minister cannot carry that responsibility if he is to be bound by the reports of his inspectors. In the last analysis he must be the person who will say: “This man was or was not in my view negligent”. It is not a question of fact very much in many cases; it is a question of opinion—whether he was or was not so negligent that he should not be allowed to continue to hold his office or whether, having been negligent, there are mitigating circumstances and whether the mitigating circumstances are such that he can overlook the negligence or whether they are not sufficient to justify him in overlooking the negligence. The Minister is put finally, in relation to these matters, in the position of a judge. There is no other person who can step into the shoes of the Minister in that regard. It cannot be left to the  opinion of an inspector or to any officer of the Minister. The Minister in the last resort must have the power of effective decision. For these reasons, I would ask the Seanad to reject this amendment and any other amendment similar to it which would compel the Minister to disclose the report of an inspector or any memoranda, made either by the inspector or by an officer of the Minister.
Mr. Hayes: Perhaps I should say at the outset that if there were a division on this amendment I would not vote for it. At the same time I should like to say that I suffer from no uneasiness of any kind. I have never been at a local inquiry. I have never read the decision of the House of Lords. I have never read the Donoughmore Report and I look on this matter entirely from the point of view of a person interested in Irish government. I sympathise with a good deal of what the Minister has said but there is, I do feel, a problem here with which the Minister has not dealt with at all. In his usual, shall I say, excitement to “down” people on the one principle of the inspector's reports, he has refused to look at what the real problem is. It was apparently the practice always to publish reports but the House of Lords decision on the matter——
Mr. Hayes: I beg your pardon—not to publish the reports. I do not see any relevancy in this House of Lords decision. The judges were not considering the advisability of publishing reports. They were considering what the law and the practice were and, therefore, their opinions are only valuable to establish what the law or the practice should be. We have power to change the law. We have the power, if we like, to argue quite calmly, without all the controversy about which the Minister talks, that the law is defective and might be changed in a particular degree. But the Minister wraps himself in the mantle of the British Attorney-General and the Lord Chancellor. Then he charges Senator Kingsmill Moore with trying to do the same thing.
 I have not the same fervent admiration for the House of Lords as the Minister and Senator Kingsmill Moore have, not by any means. I do not feel any uneasiness about these reports. I do not feel if this amendment were passed that we would have reached what the Minister calls in his grandiloquent manner “the end of representative Government”. The Minister did his best to put an end to representative Government in this country and so did many others. But representative Government has survived in this country for a long time back.
“If at any time it appears to the Minister that such rate is likely to be insufficient to meet the part defrayable out of rates of the expenses to be incurred by the rating authority in that financial year in—
“If it appears to the Minister,” that is to say if it appears to someone in the Department of Local Government, that the rate struck by a particular local body is not sufficient to maintain the public service at a reasonable standard, then the Minister orders an inquiry. That is the position under the section. Whom does he order to conduct the inquiry? A servant of the Minister and that servant of the Minister is one of the Minister's advisers. I have complete sympathy with the Minister in his position relating to the civil servants, but the fact remains that one of the Minister's advisers, bound to his policy and who shares his view, presumably, about the rate he has struck is sent to hold the inquiry. He goes out to find that the rate struck is not an adequate rate.
Thus, an official of the Minister's Department, bound to the Minister, bound to accept the Minister's policy goes out from the atmosphere of the  Local Government Department, to whom, in the words of the section, it appears that the rate struck is not a sufficient rate, goes out to find is the rate sufficient. Surely he is bound to find that it is not.
Mr. Hayes: But he would be a very foolish person if he did not so find. I have great admiration for the civil servants. I know their independence and their great qualities, but let us not forget that we are dealing with people who are in the Minister's own office. Are these people to go out and say that though the rate appears not sufficient to the Minister, it appears to them that it is sufficient? A man would want to be a very brave fellow to do that and, apart altogether from my admiration for the Civil Service, I do not think there are many of that kind going around. I think there is a real problem here in so far as there is confusion of the advisory capacity of civil servants, which is their old capacity, and the new capacity being thrown upon civil servants of acting in a judicial function.
I think this amendment does not solve the problem because I agree with the Minister that if an officer of his gives advice to the Minister, that advice should be private and confidential and it should be the Minister's responsibility to accept or reject it. But remember that we have had that practice adopted when it was the business of civil servants, like a good boy, to be seen and not heard or rather to be neither seen nor heard. Surely civil servants must advise the Minister and it is the business of a civil servant not to give the Minister the advice which he thinks the Minister would like but to give him the advice in which the civil servant believes himself. When you send out a man from the Custom House to conduct an inquiry, and he is to be confronted by lawyers like Senator Kingsmill Moore and my other friends here, and asked to decide the admissibility of evidence and other things, then you are bringing in a new function for the civil servants.
 Whatever may be said about 1914, everyone knows that Local Government, like other Departments of Central Government, is taking on more and more functions every day but I would like to suggest here and now that there is something to be considered in regard to the general question of carrying out inquiries by these people who carry out the inquiries on the order of the Minister. The Minister says he is eventually the judge, but I am not so sure that the Minister ought to be the judge in certain cases. There are certain analogies which like every other analogy are not quite sound or complete. If we take the conduct of an inquiry into a railway accident, we find there, not only the inquiry report but the decision and the recommendations and the findings of the inspector. Of course the Minister for Industry and Commerce had not at one time the function towards the railways that the Minister for Local Government has towards local bodies. Even that has changed, however, and the Minister for Industry and Commerce has now a different relationship to the railways than the Minister for Industry and Commerce had some years ago. The situation has altered.
Mr. Hayes: Oh, yes, it has. There is no use in telling me that the Minister for Industry and Commerce is in the same position in regard to Córas Iompair Éireann as the Minister was in regard to the Great Southern Railways in 1913.
Mr. Hayes: And that in turn may mean a change, too, in relation to inquiries. We do not know. We must see that there is a certain confusion here between the function of civil servants  who advice the Minister and the function of civil servants who carry out public inquiries, and it is for that reason that as a general principle, it seems to me that it ought to be altered.
I have in mind one particular inquiry in which I had no interest and about which I have no uneasiness. It lasted for five weeks and it concerned an individual's future. I do not know anything about that individual or about the sky over him, but the inquiry concerned some sort of a quarrel between a county or city manager and the manager of a gas company. To have the chief engineer of the Local Government Department inquiring into this thing for weeks and that the Minister should have then read a voluminous report and decided whether individual A, B or C should be dismissed, suspended or reduced, seems an extraordinary business. It seems an absurd function for a Minister to have from his own point of view. It seems a complete waste of the time of a very important officer of the Department. Perhaps Senator Kingsmill Moore and Senator Ryan thought it was a rather good scheme. I do not.
Secondly, the Minister's theory is quite all right, but in practice, a man must feel that he is not getting a fair crack of the whip if he is convicted by somebody who was not there, who did not hear the evidence, who did not see the witnesses and who just sits in his office and reads the report. I know the Minister is very industrious. The Minister probably read all the evidence in that case, but how he did it I do not know because it was enormous. I suggest that some kind of judicial functionary, even if he were a civil servant invested with special powers, should be entrusted with making a decision of that kind, and that it should be public.
The Minister says the Dáil can challenge this matter. You could not have a more incompetent body than the Dáil to challenge these things except perhaps the Seanad. The Dáil is quite incompetent in these things. So is the British Parliament, or the French Parliament and all Parliaments. They are incompetent to  decide whether Patrick Murphy in Ballymaguthery was guilty of dereliction of duty. I think there should be officers attached to the Department whose special business it would be to conduct these inquiries and who would have special functions and who on particular things would publish their reports. People are dismissed automatically, for example, after a judicial decision and the Dáil has no power to question it. In our modern and complicated system of Government there is a necessity to distinguish between the judicial functions and the advisory functions of civil servants. In the Department of Local Government I suggest there might be people whose sole business it would be to conduct inquiries and publish their findings then.
I have not got a very definite scheme on this. I am not very skilled in local government matters now, but it seems to me that this is one of our national problems and for the Minister to say that he is the final judge—if I may say so without offence—is really a kind of platform oratory.
If I were the Minister for Local Government I would not like to be the final judge in these matters and I think there should be some scheme devised whereby the person making the decision would be able to see the demeanour of witnesses and hear the evidence. It is all right to say that a person in the Custom House reads all the evidence but he does not see the witnesses and he is not in the same position as a judge in that regard. He is not in the position of a judge presiding in an open court where the matter is tried, where the witnesses give evidence and are examined and cross-examined and where the person presiding comes to a conclusion on certain fixed principles. You must remember that in local bodies there was a definite Governmental policy that they should be political and the Minister, in his capacity as a Party politician, advocates that local bodies should be political. What is going to happen when an official clashes with the poltical body where the Minister has functions to decide, having got an inquiry to deal with that particular office? It would be much better,  instead of generating a certain amount of heat, if we considered it was a real problem, and in the complex nature of Local Government there should be some other practice adopted rather than the practice of the Department in conducting the inquiries, refusing to publish the report and having a Ministerial decision on it.
I am not challenging the Ministerial decision, and I am not full of uneasiness about any particular report, but I think that when we read this particular section, the wording of it makes it clear that before the inspector goes out to conduct an inquiry, he and the Department of which he is a member and the policy of which he must perforce carry out, will know that it appears to his Department that a reasonable rate had not been struck. In these circumstances something is necessary. I feel that the Minister and myself would agree in concluding that we have sufficient Irish ingenuity to reach a decision, even if the British had not reached any conclusion at all.
Mr. Ryan: We are speaking now on an amendment moved by Senator Sir John Keane. This amendment would require, under sub-section (1) that after an inquiry a copy of the report should be sent to the rating authority concerned at least 14 days before the issue of the notification under sub-section (2) of the same section. I do not know what is meant by a copy of a report of an inquiry—that might mean a newspaper report of the proceedings. I assume that Senator Sir John Keane intended that a copy of the report of the inspector holding the inquiry should be sent to the local authority. That is only a small point.
Mr. Ryan: It is a small point, I agree. I think the time has come in this country to clear the air about the publication of reports of inspectors holding local inquiries, because local inquiries have been established by statute for a number of purposes. Public local inquiries have been held in connection with the acquisition of land, the clearance of slum districts and the demolition of house property on the one hand, and with purely administrative  matters confined, let us say, to the Department of Local Government and Public Health, on the other hand.
Now the Donoughmore Report was a report of the committee that was set up to report on the powers of Ministers, not the ordinary powers, but what I might call the extraordinary powers of the Ministers—powers of legislation which are, of course, the proper function of the Legislature, and judicial powers, on the other hand, which are the proper functions of the judiciary.
The proper power of Ministers is the executive power but in some cases Ministers must exercise what I call extraordinary powers of legislation, or extraordinary judicial powers. Ministers exercise legislative powers by the making of statutory Orders under statute and the making of statutory rules, and the exercise of judicial powers, which are called quasi-judicial powers principally in respect of local inquiries.
I have a feeling myself that the Donoughmore Commission was set up to investigate the use of judicial and quasi-judicial powers, not in reference to the administrative Departments of the Ministers concerned, but rather to the exercise by the Minister of quasi-judicial powers which affect the rights and the interests of persons who were in no way concerned with the administration of Departments, and, in particular, by the exercise of the Minister concerned of judicial powers affecting the property rights of persons who were not concerned with the Minister's Department.
There was a case in the courts, reported in 1924, where in the City of Jarrow the local corporation proposed to demolish some property for the purpose of building new houses or clearing a slum area and a local inquiry was held about the proposed clearance of the area.
It would appear that the inspector, or the person holding the inquiry, was rather in favour of not advising the Minister concerned to make a clearance Order, but after the inquiry was held, I think the Mayor of Jarrow and  some members of the council went to London and interviewed the Minister of Health or his chief officials in the absence of the owner of the property, and having heard the representatives of the corporation in London, in the absence of the owner of the property, the Minister's advisers apparently changed their minds and made the Order which had the effect of demolishing the property.
That was brought to court and it was held that it was a denial of natural justice to the owner of the property that a decision to deprive him of the property should be taken on the representations of the other side in his absence. In other words, he had a right to be heard. These were matters which brought about the setting up of the Donoughmore Commission, and not what I might call the purely administrative matters or what I might call the internal matters affecting the administration of, we will say, the Ministry of Public Health, or any other Government Department.
I have not got before me the Report of the Donoughmore Commission—I have it at home—but I remember reading it, and as far as I remember the commission did make recommendations as regards the publication of reports in matters affecting administration. Senator Moore will correct me if I am wrong, but if he reads the report, he will probably find that there is a reservation, and therefore, the Donoughmore Commission Report would not apply to a public local inquiry held in conjunction with the administration of a Minister's Department, and the intention of the Donoughmore Commission in reporting that the report of a public local inquiry should be made public was limited to the cases where outsiders—persons not at all under the jurisdiction of the Minister administratively—were concerned. Senator Moore will correct me if I am wrong.
Sir John Keane: May I ask the Senator a question? I am not trying to obstruct him. Into what category would a matter of this kind fall? If it were a question of a conflict—the Minister may say a building is adequate and the local authority may say it is not adequate, but that another building is.
Mr. Ryan: I think that is an administrative matter, in the proper sense of the word, where the person concerned is an outsider who is not under the administrative jurisdiction of the Minister. My own conclusion from reading the Donoughmore Report is that the recommendation as to publication has no application to the report of any inspector holding a local public inquiry in respect of matters which comes within the administrative sphere of the Minister for Local Government and Public Health. That is my opinion where it applies to the inquiries concerned with an official of the local authority, the county manager or the county council. Therefore, the decision of the House of Lords referred to by the Minister applies to-day as much as it applied in 1914 in Arlidge's case.
For those reasons, I am satisfied that there is no case whatever for publication in respect of matters of administration. The making of rates is a matter of administration by a local body, by local representatives who are exercising the function of a local body. They are in no better position and should not be in any more privileged position than the county manager who is exercising his executive functions on behalf of the local body. A number of elected representatives of the people style themselves a local authority. There is no such thing; they are only part of the machinery of local administration.
Mr. Ryan: One might be elected as a white-washer. The mere vote of election does not give you any special privileges beyond people who pass a competitive examination and are appointed county managers by the Local Appointments Commissioners. Is a man who gets a number of votes at an election in a better position or entitled to more respect than a man who gets to where he stands by his own energies and abilities? The county manager is entitled to as much consideration and respect as the self-styled elected representatives of the people.
Mr. Ryan: There never has been at any time any question of the publication of inter-departmental reports. The Senator might as well ask for the publication of the report of the assistant secretary of the Department to the secretary of the Department, as ask for the publication of the report of an inspector to the Minister. For these reasons, I ask that the amendment be rejected.
Mr. Baxter: One never knows what Senator Ryan is going to say, as he always says the opposite to what you expect. I will concede to the Minister that it is quite impossible to get an inspector to make a report which he knows is going to be published and have the report anything but the most limpid, unconvincing document ever presented to any Minister or public authority. Whatever course the examination might take, the fact that the inspector was going to have the report published would mean, I frankly admit, that he would look around to see who were concerned on both sides and would weigh up the strength and weaknesses of both sides and the consequences to himself of reporting on the facts. If I were the Minister and if someone who was a colleague of mine  on the county council of my native county appeared for some reason in a not very shining light as a result of an inquiry, the inspector would know all that and I am afraid the report would be coloured by that knowledge. In appreciation of those facts, I see where the Minister stands, but to make that the argument for not publishing any report is begging the whole question. I am absolutely convinced that, in certain specific cases, a report ought to be published. I am a member of a local authority and curiously enough, the one instance in which I think the report should be given is the one where Senator Ryan says it should not. Senator Ryan is not a responsible member of a local authority. There are such people in this House on both sides.
They regard themselves as having sufficient knowledge and a sufficient appreciation of their responsibilities to be able to determine the charges that should be imposed for the maintenance of the local services, as well as the level at which those charges should be maintained. When you have such people on local bodies, when their decision is disputed by the Minister, and when in the course of the dispute there is an examination of the facts, it is going to be suggested that these people are to be held up to public odium in the sense that they are not capable of determining the amount of money that should be levied to maintain the local services up to a reasonable standard. If the point of view is held by the Minister that they are not capable of doing that, there is then to be a local inquiry. When that inquiry is held, why should not the ratepayers of the county be made aware of the report which the inspector made on the competence or incompetence of the local men that took that decision?
The argument made by Senator Ryan with regard to that was absolutely inexcusable. I was astonished at the Senator making it. If it were made by somebody who had no contacts with country life in Ireland, or whose upbringing or associations had been different from those of  Senator Ryan, one could, perhaps, excuse the expression of such an opinion. With regard to certain issues which have to be determined by way of an inquiry, I think that, from the point of view of the public good, of stability and order in local affairs, there are times when the reports of these inquiries should be published. If there is one instance where they should be published, it is on the question as to whether or not the rate levied by a local body was or was not sufficient. Senator Ryan referred to the people who are elected on local bodies. To an extent he poured ridicule on them. Apparently, they seem to be very irresponsible people in his view with a peculiar kind of mandate.
I would remind the Senator that the people who give a mandate to their representatives on local bodies are the very same people who are privileged to give a mandate to people elected to Parliament, and, of course, when they give a mandate to Senator Ryan or to myself or to others to come here they are magnificent people. In my opinion they are no less a sovereign people when they elect their representatives on the local bodies than they are when they act in the capacity of voting for Deputies to sit in Dáil Éireann or for the representatives of universities to sit in this House. Perhaps a Senator with the legal mind of Senator Ryan can define a sovereign people in such a way as to make them sovereign at one moment and to restrict their sovereignty at another time. I cannot understand the Senator's argument.
The representatives on local bodies are freely elected by the people. Are such people to have no sense of responsibility? Are they not to take cognisance of the charges that they are expected to levy on the people for the maintenance of the local service? Is it not their responsibility to strike a balance between the demands of the local services and the competence of the people to pay? In my opinion that is a moral obligation which the sovereign people impose on them. There is no use in suggesting that the county manager is equally responsible. He is not. I do not want to say anything at  this stage about the functions of the county manager, but there is no use in pretending that he has equal responsibility. On the net point, if you are going to have an inquiry as to the rate which is to be levied, what is wrong with publishing the findings of the inspector? If it can be shown that I and others who serve on local authorities are not doing our duty, then we should be shown up. That would be the right way to treat us. It would help to establish a spirit of responsibility in the minds of those who serve on local authorities. I suggest that is the way to create a civic sense. If the findings of the inspector indicate that the local representatives are not performing their duties faithfully, and discharging their responsibilities in the way they are expected to do, then the local people should be told that their representatives are unworthy of their trust. I give that as one instance to support the suggestion that the reports of the inspector should be published.
I am not very much concerned with what was said by the Donoughmore Committee or with what Lord Haldane or Sir John Simon said. But I do agree with what Senator Hayes said. I would like to see Irish intelligence exercised and applied to our own problems in trying to find a proper solution for them. I confess that I think it is quite hopeless for Senator Sir John Keane to ask the Minister, in the form in which he is asking for it in this amendment, to have publication of the findings of an inquiry. In my opinion we would not get what we want in that way. We want decent local administration, with a sense of responsibility on the part of those who compose the local councils. We want harmonious relations between the Department and the local authority, an appreciation of the responsibility of each in its own sphere, with a desire for co-operation. These are the things which in my opinion would be calculated to raise local services to the level that we should all desire. How is that going to be provided?
In certain instances, of course, it will be necessary to hold inquiries, but, no matter how the Minister may argue, nothing will convince the people of a  county that the holding of an inquiry by an official of his Department is a satisfactory procedure so long as the report is not published. Therefore, when inquiries have to be held, the Minister should find some method of holding them, other than the procedure which is adopted at present. It is essential that that should be done. I believe that if it were done local administration would become much more healthy. It would also provide an excellent method for educating public opinion. It would make the local people appreciate the fact that these inquiries can be impartial, and that the reports of whatever body was set up to hold them—somebody other than an official of the Department—can be fair reports. At present it is terribly easy to argue that that is not true of these reports. It is unfortunate that it should be possible for people to make such a case as that.
To some extent I was brought to my feet to speak on this by the annoyance which Senator Ryan's attitude of mind towards it caused me. I suggest to Senator Sir John Keane that if we want protection for local authorities, that if we want to ensure that when local authorities are found unworthy by the Minister or his representative that the public will be made acquainted with all the facts, so that the people will be able to form their own judgment, I believe we are not going to get that by the method which the Senator has suggested.
Liam Ó Buachalla: Duirt an Seanadóir Bacster gurbh é an fáth gur éirigh sé chun labhairt ar an leasú seo an fhearg a chuir an Seanadóir Ó Riain air mar gheall ar an dóigh in ar phlé sé an cheist. Is é an fáth is mó a éirímse, le cur in úil don tSeanadóir Ó Riain chomh mór agus atá an Seanad fá chomaoin aige agus an scéal a phlé chomh cúramach, chomh soiléir agus chomh cruinn agus a rinne sé. Thaispeáin sé go soiléir dhúinn lochtaí na leasuithe seo a thug an Seanadóir Ó Catháin os ár gcomhair. Roimhe seo, bhíomar faoi obligáid ag an Seanadóir Ó Riain agus ní lú an oblagáid sin anois.
Do léigh mé tamall ó shoin, nuair a bhí díospóireacht ar an gceist seo,  tagairt do Thuarascáil Donaghmore agus an méid a bhí inti maidir le tuarascála rúnda. Ós rud é nach bhfuil tréineáil i gcúrsaí dlí agam, bhí mé níos mó ná sásta gur mhínigh an Seanadóir O Riain an pointe sa Tuarascáil sin maidir le tuarascála rúnda, mar ní raibh tuairim ro-chruinn agam air.
Fuarthas locht inniu ar na daoine a a bhios i mbun fiosrúchán phoiblí. Níl mórán eolais agam ar na fiosrúcháin sin. I rith mo shaoil ní raibh mé i láthair ach ag cúpla ceann acu. Ní raibh baint agam leo ach chuaigh mé chucu chun a fháil amach conus a scrúdaíonn siad na ceisteanna a bhíos ós a gcómhair agus conus a iompraíos na cigirí, na fiadhnaithí agus na dlío-dóirí a bhíos pairteach sa gcúis iad féin. Caithfidh mé admháil gur iom-pair na cigirí iad féin ar bhealach an-chothrom agus an-uasal. Chuir siad rompu teacht ar an bhfírinne agus, do réir mo thuigsiana, bhí siad an-chúramach. Bhí dlíodóirí i láthair ar gach taobh agus bhí cead acu ceisteanna a chur ar na fiadhnaithí. Thug mé fá deara go raibh lucht na bpáipéar nuaíochta i láthair agus an chéad lá eile bhí cuntas cruinn, iomlán ar imeachta an fhiosrúcháin sna páipéirí. Fuair na daoine eolas cruinn iomlán ar an gceist tríd an bhfiosrúchán agus tré na paipéir nuaíochta. Do réir mar thuigimse, cuirtear cóip iomlán den fhiadhnaise chuig an Aire agus is ar an tuarascáil sin a tugas an tAire a bhreith.
Taobh amuigh de sin, an cheist atá ós ár gcómhair inniu is ceist shimplí i. An ceart údaras a bheith ag Aire— sa gcás seo, an tAire Rialtais Áitiúil —seirbhíseach a thoghadh chun fios a fháil ar cheisteanna áirithe tré fhios-rúchán agus an ceart don Aire iar-raidh ar an seirbhíseach sin tuarascail rúnda a thabhairt dó, má shíleann sé gur gá é. Is ar an gceist sin a chaith-feas an Seanad breithiúnas a thabhairt. Duine ar bith ag a bhfuil eolas ar chúrsaí poiblí, duine ar bith a bhí ar Choiste Leabharlainne, nó Choiste Gairm-Oideachais nó Chomhairle Chontae, tá a fhios aige gur gá eolas rúnda a bheith acu ar ócáidí chun an n-intinn a dhéanamh  suas ar cheisteanna áirithe. Ar an gcaoi chéanna, nach ceart, mar a míníodh inniu, údarás a bheith ag Aire—agus go háirithe an tAire Rialtais Áitiúil—iarraidh ar sheirbhíseach iontaofa eolas faoi rún a thabhairt dó, nuair atá gá leis, i dtreo go mbeidh sé i ndon a chuid oibre a dhéanamh go sásúil? Labhair Seanadóirí ina aghaidh sin agus sin an méid a rinne-adar. Duine ar bith a tháinig isteach inniu chun na hargóna pro agus con do chluinsint agus breithúnas a thabhairt orthu, b'éigin do admháil gurb iad na hargóna ba láidre na hargóna ar son cúise an Aire.
Rinneadh tagairt don imní atá ar na daoine mar gheall ar na tuarascála seo. Dúirt an tAire féin nach raibh fhios aige go raibh a leithéid ann. Tá an ceart aige. Tá a fhios agam Comhairle Chontae a cuireadh fá chois cúpla bliain ó shoin. Cuireadh Coimisin-éara isteach in ionad na Comhairle Contae. Bhí trácht air sin sa Teach seo agus dúradh go raibh muintir an chontae mí-shásta mar gheall air. Tar éis tamaill, bhí toghchán sa gcontae sin chomh maith le contaetha eile. Fuair muintir an chontae sin seans a dtuairim a thabhairt an raibh siad sásta nó mí-shásta le breithiúnas an Aire. Tá a fhios againn toradh an toghcháin sin. Thaispeáin na daoine go raibh siad ar aon intinn leis an Aire, agus na daoine a chuaigh suas ar an taobh eile bhriseadh iad. Má tá fiadhnaise ag teastáil nach bhfuil aon imní ar na daoine mar gheall ar an gceist seo, ní gá dul thairis sin.
Mhínigh an tAire dhúinn go bhfuil sé freagarthach don Oireachtas, faoin gcórus polaitíochta atá againn, ar ceisteanna poiblí agus deirimse nár cheart réiteach na gceisteanna sin a fhágáil ag seirbhísigh an Stáit. Ba dainséarach an rud é an dualgas sin a chur ar seirbhísigh poiblí. Ar mhaithe le rialú poiblí agus leis an saol poiblí, tá súil agam go seasóidh an Seanad leis an Aire agus go n-aontóidh an Teach leis sa tuairim a thug sé, gurb é féin ba cheart a bheith freagarthach don Pháirliméid agus do na daoine as réiteach ceisteanna poiblí.
Mr. Sweetman: But for the remarks made by Senator Ryan, I had no intention  of speaking on this amendment. I must confess I have never really been so grateful to any Senator as I was to Senator Baxter when he spoke after Senator Ryan because if I had stood up to speak immediately after Senator Ryan concluded, I might have said things for which I would have been sorry after I had some opportunity of cooling down. As it is now, I am merely sorry for Senator Ryan because in his usual alacrity to defend the Minister in his attitude to any amendment that might be proposed, he did not seem to realise that the Minister has travelled somewhat in the past three or four years and that the Minister now realises, as he did not realise three or four years ago, that the elected representatives on a local authority are entitled to a certain primary function in regard to the carrying out of the duties of a local authority. The Minister's view now, as it was not then and as Senator Ryan did not seem to realise when he got up, is that the manager is carrying out his duties in a manner subservient, not to the individual elected representatives, but to the collective authority of the elected representatives of the people in any particular area. If we are going to move away from that in local government, then we might forget completely the farce of having in any area elections every three or four years for the purpose of constituting county councils and we might as well say that those who do give their time without reward to carrying on the local government business of their county, could easily save themselves that trouble and devote their time to their own business. Happily, as I feel that view is not accepted in all its implications by the Minister, I think that the speech that was made by Senator Ryan does call for the most emphatic denial that along that road in regard to local government lies any hope of their being any tradition of co-operation from the people of a county with central government.
So far as this amendment is concerned, I do not think that the position is such that the amendment in its simple form can be adopted. I take another view in regard to the position  as visualised in Section 30. I find it somewhat difficult to discuss the amendment as such, without infringing slightly on a discussion of the section itself. It seems to me that the essential thing to consider is what is the best method of achieving voluntary successful co-operation between the Central Government and the local authority. The Minister's view is that that can best be achieved by all the time wielding the big stick in his hand, the big stick that is particularly included in the Minister's power of striking an additional rate set out in line 21 onwards. I do not think that that is the way the Minister is going to get from local authorities the co-operation that is essential if local government is going to be a success. I think we shall eventually reach a successful system of local government only if the people of a county—I am dealing with county councils for the moment—are enabled to see, appreciate and understand and be made to appreciate and understand, where the people who have elected them have let them down. If the elected representatives make, so to speak, a “muck” of it, the people must be allowed to see where they have been led, where the mess has been created and by whom the mess has been created, and they must be permitted to suffer as a result of that or else you are not going to achieve anything in the future under the new authority that will be elected.
The Minister's point of view is that the desirability of that is completely overriden by the necessity of having co-operation and direction from the Central Government. I differ from him in that view. We shall discuss these differences later on the section but, in regard to this amendment, I suggest that if there were some functionary analogous to the arbitrator appointed by the Minister in connection with the acquisition of land, somebody appointed by the Minister but who yet would not be in the Minister's Department, to hold these inquiries, to publish, not recommendations, but findings of fact upon which the Minister would be the person, not exactly to make a recommendation except in  so far as he was recommending a certain course to the Oireachtas, but to take a decision on certain facts presented to him and presented to the public, presented not by a servant of the Minister—I entirely agree with the Minister in that—but by some outsider appointed by him in the same manner as an arbitrator is appointed in connection with the acquisition of land, then and only then in my view would you get from the people of an area that loyal and voluntary co-operation which is necessary for the success of local government. If the facts were published the people of the area would know exactly where they stood. If there had been default by the local elected representatives that default would be known beyond yea or nay. Then there could not be any dispute about it and there could not be any possibility of faction being created because representatives who were being ousted felt that they did not get, whether in fact they did or not, a fair crack of the whip. That would give no possible excuse to the people, who in the long run, and it will always be so, are the best judges of what is going to be best for their county.
Although we cannot do it in this amendment I would earnestly ask the Minister to consider the possibility of appointing some other person of the nature I have suggested to deal with inquiries such as these merely on the basis of facts. In addition, if the Minister likes he could have his own civil servant at the inquiry for the purpose of being able privately to make recommendations to the Minister as a result of what he saw at the inquiry, and then to have a fact finding statement—I will not call it a report, because a report is a colourable document—but a fact finding statement which would mean that there could not be any argument afterwards about what were the facts and that it was on the facts that the decision was ultimately founded so far as the dissolution of a local authority is concerned. I think that along those lines the Minister would get more co-operation from the people who, I believe, and I think he believes, too,  are the essential feature in local government—the elected representatives, not the managers.
Mr. Duffy: I do not desire to say much on this amendment except to draw attention to what I think is the atmosphere of unreality in which this discussion is proceeding. Part of that, I think, is due to the desire of the Minister and perhaps of some of the other speakers to dramatise the subject under discussion.
Mr. Duffy: We are discussing an amendment to Section 30 and the whole question of local government inquiries and the publication of reports does not arise on this amendment. What does arise is the proposal in the amendment to publish a particular report in regard to a particular matter. The whole issue is not raised here. As I understand it, under sub-section (1) of Section 30 the Minister is required to hold a local inquiry before he determines that the rate struck by the local authority is insufficient.
Mr. Duffy: And if he considers the rate is insufficient he sets it aside and orders the striking of a new rate. Before he does that, however, he is required under this section to hold a local inquiry and the proposal, as I think the amendment contemplates it, is that the result of that inquiry in regard to the insufficiency of the rate, if insufficiency is alleged, should be made public. Now there is no use in the Minister talking about signing on the dotted line. That does not arise here at all and the opinions of the Lord Chancellor and other distinguished lawyers in England have got nothing to do with this amendment.
In saying that I have grave doubts as to whether the amendment would achieve its purpose. I gather from  the speech which has been delivered by Senator Sweetman that he too, has the same doubt as to whether the amendment if inserted in the Bill would achieve its purpose. I think it will not and I agree entirely with what Senator Hayes said earlier in regard to this matter. If the person holding an inquiry is an officer of the Minister's Department and if that person knows that his report is going to be published I think it is not unfair to say that having regard to the relationship between the Minister and his officials that report will be presented in a form in which it may with safety to the Minister be published. I do not think that is what you want in relation to this question when the matter involved is the setting aside of a rate which is struck by a local authority.
Let us assume, for instance, that the county manager requires a certain sum for a particular purpose. It may be a good purpose, a purpose in which the county manager would have the support of a great many people in both Houses of the Oireachtas, but at the same time it might be a purpose which would not commend itself to the local authority. One example has occurred to my mind. I do not know whether it is a good one or whether it is safe for me to cite it or not. I can imagine a county manager taking the view in some particular town, let us say in West Cork, that there should be a fair green and that the cattle in future should not be exposed for sale on the public street. In his submissions to the county council the manager might propose that a sum of £5,000 or £10,000 would be included in the rate to enable him to provide a fair green. The county council may take the view that that is an extremely bad thing though I personally would think that it is a good thing. Then the county council by a majority decides to strike this item out of the rates and probably there would be other items of a similar kind in which I will hold or the Minister will hold with the county manager.
 Dáil or Seanad may be wrong too but unfortunately we have to obey decisions arrived at by a majority and I am afraid we will have to put up with decisions of the county council, even though some members will think they are unwise decisions. Once we accept the principle that the local authority has that power of refusing to strike a rate or the power of striking a rate, then we ought to hesitate before we permit the Minister to set aside the rate struck by the local authority and to determine that there shall be a new rate which will include this item that the county council desires to exclude. Inquiries are held before that decision was taken by the Minister and I cannot see anything wrong in requiring the person holding the inquiry to make his report in public. As I have said already, I do not think that requiring the publication of the report of the person holding the inquiry will achieve anything if that person is an official of the Minister's Department.
Mr. O'Dea: The requirement is that it should be sufficient to meet the part defrayable out of the rates of the expenses to be incurred by the rating authority for that financial year in maintaining at a reasonable standard the public services for the maintenance of which the rating authority is responsible. I do not know how he can bring in the fact that the county manager can order a matter of that kind to be done. There is a provision in the Act of 1941 that the council may order certain things to be done——
Mr. O'Dea: He may order certain things to be done and if a certain number of persons called a meeting and decided by a majority of two-thirds they can require things to be done, but they must provide the money before the manager can do the work and they  do not know what authority has authority to order for itself that certain things must be done.
Mr. MacEntee: May I again try to emphasise what Senator O'Dea has already tried to convey to Senator Duffy? The county manager cannot require the local authority to do anything. He can recommend. He can say: “if you want these local services maintained it will require such-and-such an amount of money to maintain them,” but he cannot require the local authority to do a single thing.
Mr. Duffy: I do not think it is essential for the case I am making. Let us assume that a county manager considers that fairs should not be held on the public streets. Is he not entitled to suggest to the local authority that a fair green should be provided so that fairs can be held there?
Mr. Duffy: It is not specially essential to the case I am making. I am only drawing attention to this fact, that a conflict may arise between the county manager and the county council in relation to the sum of money which should  be provided. If that conflict arises, the Minister is entitled to step in and to say that in his opinion, the county council is not providing sufficient money for the local services they are required to maintain.
Having formed that view he appoints an officer of his Department to hold a local inquiry. By the way, he does not say it shall be a public inquiry; it shall be a local inquiry. This inquiry is held. The report of the inquiry reaches the Minister. I do not know the form in which it reaches the Minister. It may be that what reaches him is a transcript of the evidence without any recommendation or observation at all by the officer holding the inquiry. Therefore, that is where I think the amendment is defective because there may be nothing to publish whatever except a transcript and if the matter is of sufficient public importance that will have been read in the local newspapers, so that the amendment does not achieve its purpose in that regard.
The point I am trying to make is, that the Minister has to make up his mind in relation to this matter, a matter of outstanding importance—the question whether he is going to order the making of a new rate in the middle of a financial year. Therefore, a very important responsibility is placed on him. That responsibility cannot be passed on to the shoulders of any officer and I therefore think it is entirely unrealistic for the Minister to talk about signing something on the dotted line. He is obviously required to make up his mind, because he is requiring a local authority to strike a rate, and then to strike a new rate, and probably upsetting the whole collection of rates in the area of that particular local authority.
The Minister attached a lot of importance to the fact that there is no legal right here or in Great Britain to insist on the publication of a report made by an officer of the Department holding the inquiry. That is admitted. There is no question about that. There is no legal obligation, but what is proposed in relation to this particular incident is that there shall be an obligation  on the Minister to publish a report. As I have said already I think that is ineffective because, in fact, there may be no report at all. Senator Keane doubts that.
Mr. Duffy: There may be no report and what is in the Minister's Department is a transcript of evidence, the publication of which will enlighten nobody, but at any rate what I have in mind is that the Minister, in a matter of this kind and also on the other occasions on which inquiries are held for this type of case, should appoint a person who is not attached to his Department, for the purpose of holding the inquiry and having received a report on the outcome of the inquiry, the Minister ought to communicate to the local authority the contents of that report.
That does not mean that the Minister is required to adopt the report. The fact that he communicates it makes it public, but imposes no obligation on him to accept the report. He is entitled to say: “There is the report of the officer or inspector who held this inquiry. I do not propose to accept it. I propose instead to make the following Order...”
I do not see any embarrassment in that course for the Minister. He is in, at least, a better position than he is in now under the present procedure, where a suggestion is being made and being reported abroad that the Minister is in fact doing something which is in conflict with the person holding the inquiry. What is running through this whole discussion is the suggestion that the Minister appoints somebody to hold an inquiry, ignores the report, and does what he set out to do in the first instance, despite the report.
That is the suggestion and, therefore, the Minister would be in a better position to say: “I am making the report available in this case, but I do not propose to follow it; I think it is wrong and that the person who made the report ignored certain considerations  which I, as head of the Department, am bound to take into account.” If the Minister would view it in that way, instead of becoming involved in the legal decisions of learned judges in the House of Lords and legal institutions in England, he would be doing himself credit and be removing some of the difficulties with which he is confronted when these questions arise here and elsewhere.
Mrs. Concannon: There is one small point not raised in this debate which is important—it arises in connection with the amendment, as the amendment speaks of a report. It is important to remember that it is the Minister who holds the inquiry—that is the wording of the section—and, therefore, no report can issue until the Minister issues it. The Minister will issue it in the form of a decision. The inspector is his agent. It is not a question of his appointing anyone to make the inquiry. He holds the inquiry and I presume he is at liberty to use any instrument he likes for the purpose of that inquiry. Therefore, any report that will issue must be the final report of the person who holds the inquiry—the Minister.
Mr. Kingsmill Moore: Every time we have the pleasure of having the Minister here, my very genuine admiration for his adroitness, ingenuity and ability grows. I thought I had spent a good portion of my remarks in making it perfectly clear that the decision in all these matters rested with the Minister, that I appreciated it, that I did not desire to alter it and that it could not be otherwise. I drew a distinction between a judicial and a quasi-judicial tribunal, largely for the purpose of emphasising that the ultimate decision as to what should or should not be done must rest with the Minister. Then the Minister gets up and, with a mixture of blandness and passionateness, suggests that I am condemning him because he is not a rubber stamp, that he should sign on the dotted line because the inspector recommended him to do a thing, and a lot more to the same effect. I am not suggesting that the inspector should influence in any way the Minister's decision. That is  the Minister's own business. There is a Spanish proverb which says: “God says, ‘Sin and pay for it’.” That should be up before every Minister.
Mr. Kingsmill Moore: The Minister must make decisions and he will not always be right and, if he is wrong, he may have to pay for it; but I would be the last person to suggest that his power of making a decision should be controlled. He may have to justify it, but he must take it. That is not what I started to say and it is not what I did say. I said that, when the Minister was seeking to inform himself as to facts, he should adopt rational methods. It is all very well for him to suggest that he spends the majority of his time in reading lengthy verbatim reports of commissions. I have already paid tribute to his ability, but the Minister has also something else to do. It takes me, a person who has had some practice in these matters, four days to read, with such discrimination and intelligence as I may have, the report of an inquiry which has taken a week. It would take the Minister at least ten days to assimilate and judge the report of an inquiry which Senator Ryan said, I think, took three weeks—whether that has anything to do with Senator Ryan appearing in it or not, I do not know.
Mr. Kingsmill Moore: The point I am making is that the Minister is not going to suggest to me that he has time personally to examine all the evidence, because he has so many other things to do. Furthermore, even if he had time, I do not think it follows necessarily that he is the person best qualified. I am leaving out for the moment the point that he has not heard the witnesses. If you have not heard them, it requires a pretty long legal or semi-judicial training to understand the drift of contrary evidence merely on the written page. It is never as good as hearing it. I say boldly  that the Minister does not spend his time reading verbatim reports and, even if he did, he could not get as good a summary of facts as the inspector would have given him.
I agree entirely with the remarks that it would be better for more or less skilled people to take these inquiries and come to a conclusion on the facts. The Minister has evaded the issue—as least as far as put by me— that where he takes the decision he should inform himself as to the facts which are reasonably deducible from the evidence, by looking at the finding of facts of the person who took the inquiry, and in order to keep himself safe, he should allow that portion of the report—which is merely a statement of the facts which are properly deducible from the evidence—to be published. He could then say: “I have followed that finding of fact or have not followed it, because I had very good reasons.”
The only other matters I wish to make clear arise on certain suggestions by Senator Ryan and certain remarks about the Arlidge case. The only reason I referred to Arlidge's case was that the Department of Local Government, when in a difficulty, took Arlidge's case and put it up over their heads like an umbrella and have kept it up ever since to try to avoid the drips. I move to report progress.
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