Joanna Tuffy (Labour)

If the Minister will allow me to finish, I will go into that and explain it. The wording of the Bill itself signifies that there is a problem, legally and constitutionally. It does not just prevent one from holding a seat; it actually prevents one from running for election. The proposed new section 13A states that one cannot be elected to a local authority if one is a Member of either House of the Oireachtas. That is a recognition of the fact that one cannot take away the mandate and powers an elected local councillor derives from the people.

The problem from the Minister's point of view – and the factor which dooms this Bill to failure – is that a councillor can run for election to the Dáil. I do not see how such an elected person can be compelled to give up their seat unless appropriate provision is made in the Constitution. That is largely where the constitutional challenge will lie.

The Minister has spoken of separating national and local government, but in reality he wants to have it both ways. He is not going to prevent councillors from running for the Dáil or the Seanad. He cannot have it both ways. By setting out to do so, he is leaving a constitutional loophole.

The Minister also referred to previous legislation. My first argument is that it has not been challenged and, second, it is different in that the disqualifications already existing in the Local Government Act 2001 largely relate to incompatibility or a conflict of interest. Ministers are appointed to their positions. A county councillor cannot "run" for appointment as a Minister. It is different in that sense.

In relation to the European Parliament, one is not prohibited from being both a Deputy and an MEP but one is prohibited from being a Minister and an MEP. That is because a conflict of interest arises. If one is a Minister, one may be involved in negotiations with the European Parliament and local authorities. Clearly, there is a specific reason behind that legislation which is not present in relation to the provisions of this Bill. Being a Deputy or Senator does not involve that type of relationship or give rise to any conflict of interest. I do not accept that there is any disability or incapacity which could be argued in court to justify the provisions in this Bill.

Another problem arises, giving grounds for legal challenge, where a non-party or independent councillor is elected to the Dáil. Under this Bill, the mandate of those people who voted for such non-party representation in the local authority will, effectively, be pushed aside as the outgoing non-party councillor will not have the opportunity to nominate a successor. The position will be filled by the majority group in the council and will, most likely, go to a member of a political party, thereby taking away the democratic rights of those who elected an independent councillor.