Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

I move amendment No. 304:

In page 181, after line 29 to insert the following:

“CHAPTER 5

Amendment of Local Government Act 2001

Amendment of section 19A of Act of 2001

254.Section 19A of the Act of 2001 is amended—

(a) in subsection (1)(b), by the insertion of “to perform the member’s functions during the absence” after “temporary substitute”, and

(b) by the insertion of the following subsection after subsection (9): “(9A) The member causing the temporary absence shall not perform any functions as a member unless and until he or she returns to office.”.”.

The amendment makes precise amendments to section 19A of the Local Government Act 2001, as inserted by the Local Government (Maternity Protection and Other Measures for Members of Local Authorities) Act 2022. Section 19A of the 2001 Act provides for the possibility of the appointment, by co-option, of an individual as a temporary substitute for an elected member, who either takes a period of maternity leave or is absent due to illness, in good faith, or another reason. Following the enactment of the Local Government (Maternity Protection and Other Measures for Members of Local Authorities) Act 2022, the question was raised about its implications for the exercise of functions of a member of a local authority, specifically around voting in Seanad elections, by either or both the temporary substitute, and-or the member causing the absence.

Legal advice was sought and provided on the matter by the Attorney General. The Attorney General advised that no constitutional difficulties arise in this matter regarding the 2022 Act. It was his view that while the councillor on leave and the temporary substitute may both be described as members of the local authority, the functions of the member can only be performed by the temporary substitute. The Attorney General also suggested that consideration may be given to whether it is appropriate to amend the 2022 Act to make express provision dealing with the exercise of the functions of a member during the temporary absence caused by a member taking maternity leave, illness or good-faith absence.

While such an amendment would not, in the Attorney General's view, be considered necessary, it was suggested as a means of avoiding future difficulties arising with regard to the 2022 Act. The objective of this very precise amendment is, therefore, to reinforce the policy intention in providing for a temporary substitute for elected members who take maternity leave or those facing a long-term absence due to illness, in good faith for another reason, and that the temporary substitute will fulfil the functions of the member causing the temporary absence for the period of that absence. The amendment clarifies that a member who has caused the temporary absence and sought a temporary substitute could not continue to exercise the roles and functions of a member in voting in elections to Seanad Éireann, or any other matter, during the period of their absence.

While the amendment relates to the exercise of all functions of an elected member, the effect, in this case, of voting in Seanad elections is that there would only be one vote exercised.