Michael McDowell (Dublin South East, Progressive Democrats)

To put the matter in context, where a statute creates a duty one must look at its terms to decide whether failure to comply with the duty becomes actionable at the instance of a person who is aggrieved or suffers as a result. This is a conundrum about which law students learn at great length regarding tort. While there is a tort of breach of statutory duty, it only exists where the courts interpret the statute which creates the duty as one which intended that individuals who suffered as a result of a breach of the duty were to have an individual cause of action against the person in breach of the duty. I hope that is clear.

When one creates a statutory duty, as in the case of section 33(1), one must ask what are the consequences of a breach of the duty in question. One must make clear to the courts that either there is to be a cause of action vested in individuals who are at a loss as a consequence of that breach or there is not. Subsection (2) is designed to bring about such clarity. It provides that it is a duty of a local authority to take such steps as may be practicable to assist in the reduction of crime, disorder and anti-social behaviour within its area of responsibility. This is an important point of local government law because local authorities have functions and duties conferred on them. If a local authority, for instance, wants to spend money, the city or county manager will be the first to point out if the purpose for which the money is being spent is not proper because the authority has no function in the area inquestion.

Crime and anti-social behaviour reduction will, under the legislation, be an area in which local authorities have a positive duty to act and discharge its duty in that regard. It is not meaningless to confer a duty which is not actionable at the instance of an individual. It is essential for some purposes that it should be intra vires a local authority to do things which otherwise might be regarded as ultra vires a local authority.

What happens if a local authority is in breach of this duty? Does one vest in the Circuit, District or High Court a right to compensate somebody who is at a loss as a result of a failure to carry out the duty? For instance, if subsection (1) was interpreted as requiring a local authority to have adequate street lighting in a crime infested estate and the lights do not function, can someone whose car has been vandalised three times while the lights were not functioning claim damages for the state of the car? Alternatively, where powers are available to exclude troublesome neighbours from social housing of which one is the landlord and one fails to do so, can a person whose house has been wrecked twice by his or her neighbours demand that the landlord pay the bill? These kinds of issues could arise with the result that people go before a judge, indicating a person has a duty and demand compensation.

Subsection (2) makes it clear that the question of compensation does not arise unless it would already arise, that is, the new duty does not confer an extra right on individuals to sue for damages. In addition, persons are not conferred the right to injunct a local authority to do something or refrain from doing something based on the duty in subsection (1). If one were to provide for such a right, the local Circuit Court judge would, for instance, be in a position to order a local authority to erect four more lights in a particular area because it is clear that criminality arises from a failure to do so. One would have judge-driven local politics if one were to give the right to the courts to hand out injunctions based on that general duty.

These are the reasons for the inclusion of subsection (2) which reads:

Subsection (1) is not to be taken to confer on any person a right in law that the person would not otherwise have to require a local authority to take any steps referred to in that subsection [this is the injunctive relief] or to seek damages for a local authority's failure to take such steps [this is the damages relief].

The subsection, therefore, excludes injunctive and damages relief from a person who claims a breach of a general duty. If this provision were not included, a clever lawyer could seek to persuade a court that a person. whose home had been vandalised 15 times in circumstances in which it was reasonable to believe that tenants could have been evicted for anti-social behaviour but were not, could sue the local authority for the cost of bills incurred as a result. In extreme cases of this nature, my sympathy would go to the person in question, as would a judge's. However, we do not want to create a new head of compensation because it is hard enough to run a local authority without constantly being told by the law agent that certain measures cannot be pursued because the authority faces being sued. For example, advice could be given that a new park cannot be built because all available money must be spent on street lighting on the grounds that ten solicitor's letters have been received threatening the authority with an action. That is the purpose of the subsection.