Damien English (Meath West, Fine Gael) | Oireachtas source

I thank Senator Victor Boyhan for raising this issue. I gather it is not the first time he has raised it. As usual, he is persistent on these matters in order to get to the detail. That is fair enough; that is what it is all about. I hope to clarify the issue as best I can. The Senator has raised an important question concerning the ability of local authority members to use their role to the maximum and also to have a say on major projects in their counties, be they local or of national significance. Certainly, capital expenditure is important. As we roll out Project Ireland 2040, which is a major capital expenditure programme for the country for the next ten years and beyond and which involves an allocation of €120 billion in taxpayers' money, it is important that local authorities be involved in capital projects and in ensuring that they happen on time and, if at all possible, within budget. Expenditure is an ongoing issue as costs increase.

As set out in correspondence to the Senator from my colleague, the Minister of State, Deputy Phelan, it is not the role of Ministers to provide legal advice. We cannot do that. It is interesting that the Senator has obtained different legal advice from different sources. It will differ depending on who gives it. We cannot give the Senator legal advice but I will be happy to confirm what the legislation sets out and what it is meant to be. That is the best I can do for the Senator.

Elected members of local authorities are vested with various reserved functions that enable them to direct and oversee the activities of the local authority generally. These reserved functions are provided for by a broad suite of enactments. Section 149(4) of the Local Government Act 2001, as amended by the Local Government Reform Act 2014, provides that every function of a local authority that is not a reserved function is an executive function to be carried out by the chief executive. Part 14 of the 2001 Act sets out the role of the elected council and provides that it is a reserved function of the elected members to adopt a revenue budget; this provision does not extend to the capital budget or plan. I am no sure of the history of that but that is the way it always has been. It could certainly be considered in the future. It was not a change in 2001; it was always that way. I am just clarifying, from our point of view, what the legislation states.

Section 135 of the 2001 Act provides that before the start of each local financial year, the chief executive shall prepare and submit to the elected council a report indicating the programme of capital projects proposed by the local authority for the forthcoming year and the following two local financial years, having regard to the availability of resources. This report may be considered at the local authority budget meeting or at such other meeting as the elected council may by resolution decide. While the Act provides that both the revenue budget and capital plan be placed before the elected members, section 103 requires the revenue budget to be adopted by the members, while section 135 requires that the capital programme be submitted for consideration and comment only.

The Senator asked me about best practice. I am stating the position in the legislation. To me, it is best practice and would make sense for councillors to consult on and debate the capital programme, and even vote on a motion thereon. I would imagine that, in most cases, local authorities do so. From talking to councillors around the country, I am aware that they generally feel they have a say in this regard. It happens in practice although it might not always be set out in legislation. It would be good practice to have the members on board in respect of projects and to bring them with one as best one can.

Other relevant provisions of the 2001 Act addressing the role of elected members in the area of capital budgeting - this is where they do have very clear powers - include: section 137, which provides that the elected council may by resolution require the chief executive to prepare plans and specifications for particular works and an estimate of their cost; section 138, which provides that the chief executive shall inform the elected council before any works, other than maintenance or repair, of the local authority are undertaken or before committing the local authority concerned to any expenditure in connection with the proposed works; and section 139, which provides that, once the elected council is informed in accordance with section 138 of any works, it may by resolution direct that those works shall not proceed. Therein lies the power of a local authority member when it comes to capital projects. It is very clear that they have a role if they have a difficulty with or are positively disposed towards a project. Section 140 provides that the elected council may, by resolution and subject to the requirements of the section, direct that any specific act be done by the local authority. Again, the elected members have very powers in this regard, which is important. This might satisfy the Senator regarding what elected members can do under the law.

While responsibility for the full range of local authority functions is split between the elected members and the executive, the intention has always been that the members, in the exercise of their role, would act on a basis akin to that of a board of directors served by a full-time chief executive. Councillors, in my view, are the directors of a local authority. They have a very serious and important role. That is very clear in the Department's interpretation.

The legal character of a local authority thus comprises two elements, the elected council and the executive, with responsibility for performing local authority functions shared between them. Legally, however, all functions, whether performed by the elected council or by the chief executive, are exercised on behalf of the local authority. While the law must provide for a precise division of functions, and responsibility for their exercise may be clearly defined, in practice the policy and executive roles are intended to be complementary. That is best practice. I thank the Senator for the opportunity to address the Seanad on this matter. I hope I brought some clarity to the legal position.

Most capital projects require the raising of money, which means loans. Government grants might be available for some part of a project. Under Project Ireland 2040, taxpayers' money, spent through Departments, will fund a significant amount but in some cases money will also have to be found locally. Local authority members have to pass loans. The cost of the loans, in interest, is part of a revenue budget.