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

I commend Senator Clonan on tabling his first Commencement matter. I am responding on behalf of the Minister of State, Deputy Peter Burke, who sends his apologies. Before I come to the main body of my response, I make the point that it is unfortunate that elected members feel unable to stand for re-election, for whatever reason. I spent 16 years on a local authority. There is no greater service to the community than that provided by elected members of local authorities. They carry out an invaluable role of public service.

I thank the Senator for raising the matter. Part 20 of the Local Government Act 2001, comprising sections 212 to 214, inclusive, sets out provisions relating to the establishment of public local inquiries. None of these provisions has been commenced. Part 20 was intended to replace a number of provisions in local government legislation, a key provision of which is section 83 of the Local Government Act 1941.This enables the Minister on whom local government functions are conferred to appoint a person to carry out a public local inquiry. Section 212 is closely linked with the other provisions of Parts 20 and 21 of the 2001 Act. This includes section 216 and the ministerial power to remove the elected members of a local authority from office in circumstances where there is a failure by the elected council to duly and effectually perform its statutory functions. The intention of section 212 is that it would only be used in rare and extremely serious circumstances where the removal of democratically elected members from office is being actively considered. The power to remove the elected members of a local authority from office has fortunately only been used on four occasions since 1942. This strongly suggests that the power of public local inquiry and the related power of removing elected members from office were intended to be used only in very exceptional circumstances.

The establishment of public local inquiries would also be a legally complex matter, particularly with regard to how such inquiries would function in practice. Careful consideration would be needed regarding the powers of such inquiries to compel persons to appear before them, how the constitutional rights of such persons could be protected and how they could seek to assert their rights through the courts. The potential costs of public local inquiries would also need very careful consideration as would the question of whether such an option would represent best value for money as a means for addressing the issues of concern.

It is also important to recall that, as the Senator has referred to, a referendum was held in October 2011 on a proposed amendment to the Constitution that, if successful, would have granted full investigative powers to Oireachtas committees to hold full inquiries. This proposal was rejected by the electorate. Concerns raised at the time would also apply in the case of public local inquiries held by local authorities. It would therefore not seem appropriate to try to introduce public inquiries at the level of local government when these were rejected by the people at Oireachtas level.

The other sections of the 2001 Act that have not been commenced are section 22, on the alteration of the number of members of a local authority, and section 223, on the power of the Minister to make regulations to divide local authority areas into electoral divisions. There are no plans at this time to commence Part 20 of the 2001 Act or any other sections that have not been commenced. The priorities in relation to making local government stronger, more accountable and more responsive to the communities it serves are set out in the Programme for Government: Our Shared Future.

I will have to revert to the Senator on the specific question regarding the legal advice the Minister may have sought on the outcome of the referendum and how it impacts on local inquiries.