Seanad debates
Wednesday, 15 January 2014
Local Government Reform Bill 2013: Report Stage
4:50 pm
Paschal Mooney (Fianna Fail)
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Before we commence I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. Also, on Report Stage each amendment must be seconded. Amendment No. 1 is a Government amendment arising out of committee proceedings. Amendments Nos. 1, 2, 3 and 82 to 89, inclusive, are related and may be discussed together by agreement.
Government amendment No. 1: In page 12, between lines 37 and 38, to insert the following: “(12) This subsection, the amendments to the Education and Training Boards Act 2013 provided for in section 5(6) and Part 6 of Schedule 2 and that Act may be cited together as the Education and Training Boards Acts 2013 and 2014.”.
Phil Hogan (Carlow-Kilkenny, Fine Gael)
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This is a set of largely technical amendments to take account of the provisions of the Local Government Reform Bill on other legislation. Part 6 of Schedule 2 deals with minor consequential amendments to Acts other than those already dealt with in Schedule 1 and in Parts 1 to 5 of Schedule 2, as a result of the reform programme. Extensive additions to Part 6 were made on Committee Stage in the Dáil and in the Seanad. I am now taking the opportunity on Report Stage to add further to the listing by including amendments to a number of other areas where necessary changes have been identified. Amendments Nos. 82, 83, 84, 85, 86, 87, 88 and 89 provide for those additions.
Amendment No. 1 is a related technical amendment to amendment No. 83 and provides for the insertion of the necessary collective citation in section 1 in respect of the Education and Training Boards Acts. Amendments Nos. 2 and 3 correct an existing collective citation contained in section 1(13) to the Health Acts, which needs to be updated to include reference to the Health Acts 1947 to 2013 with the collective citation.
Paschal Mooney (Fianna Fail)
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I should have extended the compliments of the season and a happy new year to the Minister.
Paschal Mooney (Fianna Fail)
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Amendments Nos. 4, 5 and 6 are related and may be discussed together by agreement.
4:55 pm
David Norris (Independent)
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I move amendment No. 4:
I must make a confession that it has been -----
In page 14, line 8, to delete “difficulty” and substitute “insuperable problem or problems”.
David Cullinane (Sinn Fein)
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On a point of order, can I receive clarification on which amendments have been grouped? Has amendment No. 8 been included?
Paschal Mooney (Fianna Fail)
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Amendments Nos. 4 to 6, inclusive, are related and being discussed together.
David Norris (Independent)
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I understood this amendment had been ruled out of order because it dealt with the Title, but it is concerned with tidying up the language used.
Paschal Mooney (Fianna Fail)
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Amendment No. 7 has been ruled out of order.
David Norris (Independent)
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I was told amendment No. 4 had been ruled out of order. Amendment No. 7 is not out of order, but I shall argue the point when the time comes.
The word "difficulty" could mean anything and gives the Minister latitude that is too wide. The Minister might be blunt, but he is trustworthy and I doubt I would have huge difficulties with him in this area. However, one never knows what or who is coming down the line. Therefore, substituting "insuperable problem or problems" for "difficulty" would provide a higher and better provision. If the word "difficulty" remains, difficulties are there to be confronted, not to be swept under the carpet, as Lord Denning liked to do. The word "difficulty" gives the Minister a large sweeping or yard brush, but I would prefer to see him with a little dustpan and brush. Perhaps that should be the other way round and I am mixing my metaphor. It would be useful to say there was this provision if there was an insuperable problem or problems, rather than just a difficulty, because a difficulty could mean anything. This change would not affect the Bill in any way, but it would mean that there could be no tricking around with the issue for no reason.
Phil Hogan (Carlow-Kilkenny, Fine Gael)
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During the Committee Stage debate on section 2 of the Bill I undertook to examine the wording in subsection (2) and, in particular, the use of the term "expedient". This was in response to an amendment tabled by the Senator and I am grateful for the opportunity to address the issue again in response to further amendments before the House today tabled by Senators David Norris and Sean D. Barrett. Following Committee Stage on 19 December 2013, my officials and I examined the matter carefully. Having regard to this examination and the legal advice received on the matter, I am satisfied that the provisions, as drafted, should stand and I will explain why.
David Norris (Independent)
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I think the Minister is addressing a different amendment.
Phil Hogan (Carlow-Kilkenny, Fine Gael)
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We are dealing with amendments Nos. 4 to 6, inclusive, together.
David Norris (Independent)
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I did not realise that.
Phil Hogan (Carlow-Kilkenny, Fine Gael)
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It is important to restate what we intend to achieve with this provision. The Local Government Reform Bill, when enacted, will give effect to a comprehensive reform of local government structures, functions and governance. It involves significant amendments of and additions to the existing local government code and it is possible that unanticipated issues may emerge post-enactment. This section has been designed to provide a mechanism for dealing with such difficulties should they arise and similar provisions are found in other Acts within the local government code. I do not envisage that such issues will arise and if I did, a specific provision would be included in the Bill to address them. However, it is only prudent, in the context of such a wide-ranging reform programme, to provide a mechanism to deal with any unforeseen problem that may arise.
I emphasise to the House that the use of this provision is subject to a number of restrictions. In the first instance, it is time bound and may only be used within a period of three years following the coming into operation of the section. Second, regulations made under the provision will require a positive resolution of both Houses of the Oireachtas. Furthermore, the making of regulations under this provision will be subject to rigorous oversight by the Office of the Attorney General. In addition to this triple lock, against any Minister who might try to engage in some nefarious practice in the future, the Supreme Court will act as a further bulwark against a Minister who might seek to interpret and use this provision in a way that was unconstitutional. These are fundamental principles attaching to the operation of this provision.
In addition, it is important to point out that the term "necessary or expedient" is referred to almost 900 times in the electronic Irish Statute Book. The earliest reference is in section 36 of the Public Works (Ireland) Act 1831. There are 834 uses of the phrase in primary legislation since 1922 and 284 uses in respect of delegated legislation. The phrase was also used in the District, Circuit and Supreme Court rules. Given the extensive history and continuing usage as outlined, it is unsurprising that the phrase is well known to the courts in its various uses.
I am advised, therefore, that to use a different formula of words would be open to interpretation by the courts that the Oireachtas intended a different meaning or result to that which would have obtained by using the long-established phraseology of "necessary or expedient". Equally, a seemingly straightforward substitution of words as suggested in amendment No. 4 or a deletion of the term "or expedient" as suggested in amendments Nos. 5 and 6 could result in the threshold for coming within the ambit of the provision being set so high as to make it virtually unusable. At a minimum it would significantly reduce the scope of the circumstances in which the regulation-making power under section 22 could be used.
I understood the arguments that were made by Senator Norris on Committee Stage and was certainly very open to amending this particular section. However, since then I have received extensive legal advice on foot of further legal examination of the Bill, including by the Attorney General's office and based on the precedent that was established back in 1831, I am strongly advised that any other interpretation could have implications for other legislation. Regrettably, but in good faith, I cannot accept the amendment which was tabled by Senators Norris and Barrett in good faith.
5:05 pm
Paschal Mooney (Fianna Fail)
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Is the amendment being seconded?
Thomas Byrne (Fianna Fail)
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I second the amendment.
David Norris (Independent)
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I thank the Minister for the trouble that he has gone to. He has obviously consulted widely on this issue but I suggest that perhaps he has consulted with people who have a commitment to tradition, precedent and so forth. The fact that the use of the phrase goes back to 1831 does not mean anything as far as I am concerned because there was an awful lot of trouble in this country at that time. A lot of very bad legislation and very bad phraseology was introduced then so the argument with regard to precedent is not, in my opinion, convincing. In fact, one of the reasons I tabled this amendment is that I thought it would be a good idea to get rid of the phrase. Whatever about the interpretation of the courts, there is a difference between necessary and expedient. Necessary covers every single aspect. If something is necessary, then it is necessary. Not even the maddest court in the land would find it any other way. I defy anybody, including the Attorney General, who is a very charming person, to prove that this would affect a judgment. I do not believe that for one second because if a thing is necessary, then it is required to be done for the good of the people and the good of the legislation. Expedient means something very different. It is close to what, in theological terms, we call situational ethics. In other words, one does what is easiest and most advantageous from a partisan point of view. I believe it is very bad to continue to use this term in legislation. If the effect of this was to remove or to cause to be reconsidered 834 uses of the word, which is one which brings politics into disrepute, I would be absolutely delighted. I am afraid, despite the Minister's relatively emollient tone as compared to his very vigorous broadcast this morning, I will be pushing this to a vote because I believe it is very important. I do not think we should be hidebound.
People do not like change, by and large. If one is part of a large operation in bureaucracy, there is a tendency to resist change, particularly if there is a long tradition behind something. However, that is no reason. No reason has been given to me by the Minister that convinces me, even though I do accept his goodwill. He has taken advice but I believe he has swallowed that advice a little too hastily. I maintain that the term "necessary" covers any appropriate situation whereas expediency leaves the Bill tainted. It emerges from a time when politics was unrepresentative and undemocratic, when we had no parliament in this country.
The Minister said up to 1922 there were 834 uses of the phrase. That was when we were ruled from Westminster. On numerous occasions they refused to consider the Irish question, including famine, in the Queen's speech. I have just been reading a superb book about Parnell by Mr. Brian Cregan, a member of the Law Library. It is a wonderful book. The obstructionism of the British Parliament at that point is made absolutely clear. I would not be terribly concerned about upsetting a precedent that comes from that time, which had no respect for democracy, when women were not allowed the vote and Ireland was, not always but generally, walked on by an imperial parliament that produced this noxious phrase, "good republicans". I am not a republican really at all. I would love to have the O'Conor Don back. I suppose we could not push the President, Michael D. Higgins, out of Áras an Uachtaráin but we could get him somewhere nice and have him as a king. That would be wonderful. That is light-hearted, but I will press the amendment to a vote.
Tá
- Ivana Bacik
- Terry Brennan
- Colm Burke
- Deirdre Clune
- Eamonn Coghlan
- Paul Coghlan
- Michael Comiskey
- Martin Conway
- Maurice Cummins
- Jim D'Arcy
- John Gilroy
- Aideen Hayden
- Lorraine Higgins
- Caít Keane
- John Kelly
- Denis Landy
- Marie Maloney
- Mary Moran
- Tony Mulcahy
- Michael Mullins
- Hildegarde Naughton
- Catherine Noone
- Marie Louise O'Donnell
- Susan O'Keeffe
- Pat O'Neill
- Tom Shehan
- John Whelan
Níl
5:15 pm
David Norris (Independent)
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I move amendment No. 6:
In page 14, line 13, to delete “or expedient”.
Sean Barrett (Independent)
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I second the amendment.
Tá
- Ivana Bacik
- Terry Brennan
- Colm Burke
- Deirdre Clune
- Eamonn Coghlan
- Paul Coghlan
- Michael Comiskey
- Martin Conway
- Maurice Cummins
- Jim D'Arcy
- John Gilroy
- Aideen Hayden
- Lorraine Higgins
- Caít Keane
- John Kelly
- Denis Landy
- Marie Maloney
- Mary Moran
- Tony Mulcahy
- Michael Mullins
- Hildegarde Naughton
- Catherine Noone
- Marie Louise O'Donnell
- Susan O'Keeffe
- Pat O'Neill
- Tom Shehan
Níl
5:20 pm
Paddy Burke (Fine Gael)
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Amendment No. 7 is out of order.
David Norris (Independent)
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On a point of order, I challenge the Chair's ruling and I ask him to reconsider it. It was one of the most fatuous rulings I have come across in more than a quarter of a century as a Member of the House. It makes no sense whatever. There have been dozens of nonsensical rulings.
Paddy Burke (Fine Gael)
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As the Senator will be well aware, we decide on the Order of Business what will be discussed for the day. The Senator's amendment relates to regulations. If they are laid before the Houses and if they are to be discussed, the time to raise that is on the Order of Business.
David Norris (Independent)
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I do not agree with that because I have three amendments relating to regulations that are proposed to be made under the section. The draft regulations must be laid before each of the Houses of the Oireachtas but the regulations cannot be made until a resolution approving the draft has been passed by each House.
Paddy Burke (Fine Gael)
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That is outside of the scope of the Bill.
David Norris (Independent)
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It is clearly within the scope of the Bill. There is no doubt whatever about it.
Paddy Burke (Fine Gael)
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It is outside the scope of the Bill. The Senator should resume his seat.
David Norris (Independent)
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This is the kind of rubbish that goes on.
Thomas Byrne (Fianna Fail)
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On a point of order-----
David Norris (Independent)
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I have not finished my point of order yet, although I welcome Senator Byrne's point of order. I well remember raising a matter in the interest of the country relating to copyright in the House. The then Minister, who is a Minister in the current Government, said he would make a note of it and make sure it was addressed. The provision went through on the nod without discussion and he forgot to address it. Had we been allowed to have a debate on that, we would have saved ourselves a hell of a lot of time and money.
Paddy Burke (Fine Gael)
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That is a matter for the House.
David Norris (Independent)
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I am challenging the ruling and I am asking the Cathaoirleach to reconsider it in light of my argument because it brings the House into discredit when we have nonsensical, fatuous rulings that mean nothing and contradict what is provided for in legislation.
Paddy Burke (Fine Gael)
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The Senator should resume his seat. Regulations are laid before the House and it is a matter for the House to discuss whether they are discussed. It is not a matter for legislation. It is outside the scope of the Bill.
David Norris (Independent)
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Exactly. It is a matter for the House, as the Cathaoirleach said.
David Norris (Independent)
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Why can we not decide now-----
Paddy Burke (Fine Gael)
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It is outside the scope of this Bill.
David Norris (Independent)
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It is not; it is plainly within it.
Paddy Burke (Fine Gael)
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I call Senator Byrne on a point of order.
Thomas Byrne (Fianna Fail)
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I do not expect to persuade the Cathaoirleach but I agree with Senator Norris.
The decision taken by the Cathaoirleach and his office on this amendment is utterly crazy. Senator Norris makes a very good point on this type of provision. I cannot see why there is any provision against that. It is unconstitutional for the Cathaoirleach to say that we cannot put this into legislation. I cannot see what the problem is and Senator Norris is dead right. I call for a review at the CPP, Committee on Procedure and Privileges, as to what is and is not within the scope of the Bill.
5:25 pm
Paddy Burke (Fine Gael)
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When regulations are laid before the House, it is a matter for the House to then decide whether to discuss them.
Thomas Byrne (Fianna Fail)
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It is a matter for us to discuss them today.
David Norris (Independent)
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We are not doing that today. The Leader of the House said on the Order of Business the whole purpose of the Seanad is for discussion and open debate. We are closing it down in circumstances-----
Paddy Burke (Fine Gael)
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Senator Norris, I have made my ruling on this matter.
David Norris (Independent)
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-----which have been to the detriment of this country’s interests in the past.
Paddy Burke (Fine Gael)
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Senator Norris, I have made my ruling on this matter. Amendments Nos. 7 to 29, inclusive, are out of order.
David Norris (Independent)
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Why? Can we have the reasons they are out of order?
Thomas Byrne (Fianna Fail)
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On a point of order, amendment No. 29 is in the Minister’s amendment.
Paddy Burke (Fine Gael)
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Yes, amendment No. 29 is a Government amendment and is not out of order.
David Norris (Independent)
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What are the reasons for these amendments to be ruled out of order?
Paddy Burke (Fine Gael)
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There are various reasons.
David Norris (Independent)
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We should be all be apprised of these reasons. It is not good enough for democratic debate. This a further perversion of democracy. We have only been told about this five minutes before the debate. It is rubbish. Every single Member should be advised as to why their amendments are not allowed.
Paddy Burke (Fine Gael)
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Some of them are a potential charge on the Exchequer. Resume your seat, Senator Norris, please.
Jim Walsh (Fianna Fail)
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On a point of order. I have serious reservations about the Cathaoirleach's ruling but, having said that, he is entitled to make a ruling. Will he go through each of these amendments and give us a reason why they have been ruled out of order? With respect to the House, he should explain precisely why each amendment has been ruled out of order.
Paddy Burke (Fine Gael)
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Amendments Nos. 7 to 28, inclusive, have been ruled out of order. I have ruled them out of order for various reasons.
Jim Walsh (Fianna Fail)
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Please, hear my point of order.
It is terrible that the House would be going through this process. I would have thought that we would have learned from past controversies that have arisen from failure to monitor and scrutinise legislation. I am not challenging the rulings but will the Cathaoirleach tell us the reason for each amendment? I suspect that, in the absence of him not doing so, it was someone else who made the ruling. That really worries me.
Paddy Burke (Fine Gael)
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The rulings have been made.
Thomas Byrne (Fianna Fail)
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On a point of order.
Paddy Burke (Fine Gael)
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Resume your seat, Senator.
Thomas Byrne (Fianna Fail)
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I have a point of order.
Paddy Burke (Fine Gael)
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Amendment No. 7-----
David Norris (Independent)
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I believe the Cathaoirleach did not make the rulings because he does not know the reasons.
Paddy Burke (Fine Gael)
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I have been asked to outline to the House my decision for ruling out amendments Nos. 7 to 28.
Amendment No. 7 proposes that regulations made by the Minister under the Act and laid before the Houses shall also include provision for debate of the draft regulations. The amendment is outside the scope of the Bill. The scheduling of parliamentary business in the Dáil is the prerogative of the Taoiseach. In the Seanad, it is the decision of the House.
Amendments No. 8 and 11 are related. They propose the holding of a plebiscite on the merging of the six city and county councils proposed under the Bill. Amendments Nos.9-----
David Cullinane (Sinn Fein)
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On a point of order, I have to challenge that ruling.
Paddy Burke (Fine Gael)
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Senator, you cannot challenge my ruling at this point.
David Cullinane (Sinn Fein)
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Well, I can and I am going to take the opportunity to do so.
Paddy Burke (Fine Gael)
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Resume your seat, Senator. You cannot challenge my ruling at this point.
David Cullinane (Sinn Fein)
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With respect, I have tabled 50 amendments, the majority of which have been ruled out of order. We have not been given the opportunity to properly scrutinise this Bill. We are having the same experience we had with the water services Bill. All of the problems that resulted with the passing of that Bill-----
Paddy Burke (Fine Gael)
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Resume your seat, Senator.
David Cullinane (Sinn Fein)
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Due to all of the consequences of that Bill and the moneys squandered on consultants for Irish Water, the Minister should resign.
Paddy Burke (Fine Gael)
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Resume your seat, Senator.
David Cullinane (Sinn Fein)
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Here we are again, guillotining a Bill and ruling out amendments for frivolous reasons while not giving the Opposition proper explanations.
Paddy Burke (Fine Gael)
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Resume your seat, Senator.
David Cullinane (Sinn Fein)
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I cannot accept that we cannot have a debate on the holding of plebiscites because it might incur a charge on the Exchequer.
Paddy Burke (Fine Gael)
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Resume your seat, Senator. Will you address your comments through the Chair?
David Cullinane (Sinn Fein)
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It is ridiculous. We are sick and tired of having our amendments ruled out of order, Bills rushed through and we cannot scrutinise legislation properly.
Paddy Burke (Fine Gael)
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Resume your seat, Senator. You are completely out of order.
David Cullinane (Sinn Fein)
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It is not fair on the Minister, any Senator or the Cathaoirleach. It is completely unacceptable.
Thomas Byrne (Fianna Fail)
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We rushed the property tax and water services legislation. It is always legislation from the Department of the Environment, Community and Local Government.
Paddy Burke (Fine Gael)
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Senator Byrne, resume your seat.
Thomas Byrne (Fianna Fail)
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The suspicion is that certain people want to go home early.
Paddy Burke (Fine Gael)
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Senator Byrne, resume your seat. I was asked to outline my rulings.
Amendments Nos. 9 and 12 to 15, inclusive, and 28 propose to delete the proposal to dissolve the city and county councils in Limerick, Tipperary and Waterford and the establishment of new amalgamated authorities as their successors and other related matters, thereby preserving the existing local government areas. Amendment No. 10 proposes the establishment of a new local authority for the local government area of Connemara. Amendments No. 19 and 20 propose to delete the proposal on the determination by the Minister of local electoral areas and municipal districts, including the application of new governance arrangements. Amendments Nos. 21 to 23, inclusive, propose to delete the proposal concerning the dissolution of town councils. These amendments are in conflict with the principle of the Bill and also involve a charge on the Exchequer as the cost-efficiencies proposed to be gained from mergers and reductions in local authority members would not be achieved.
Amendment No. 24 proposes that each municipal district council may, in respect of that district, vary the commercial rate and the local property tax within the district. Amendment No. 25 provides that each municipal district may vary the commercial rate of tax for the district. These amendments involve a potential charge on the Revenue.
David Norris (Independent)
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On a point of order-----
Paddy Burke (Fine Gael)
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Senator Norris, I have made my ruling on this matter.
David Norris (Independent)
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Perhaps some of the rulings are justified. I certainly do not blame the Cathaoirleach for whom I have the greatest respect. It is time, however, we looked at these rulings. Some of them are complete nonsense. For example, where it says it is in conflict with the principle of the Bill-----
Paddy Burke (Fine Gael)
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Senator Norris, you are a member of the CPP. You know this is a matter for the CPP.
David Norris (Independent)
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I will not resume my seat until I finish my point. The principle of the Bill does not exist until it is passed into law. It can and should be changed by Parliament. Otherwise, there is no reason for Parliament.
Jim Walsh (Fianna Fail)
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I thank the Cathaoirleach for giving us an outline for the reasons he has ruled these amendments out of order.
Amendment No. 8 seeks to maintain the status quo. As of now, there is no imposition on the Exchequer. The Minister is instead abolishing the councils.
On amendments Nos. 21 to 23, inclusive, if we cannot challenge specific aspects of the Bill’s principle, then it neuters the House in dealing with legislation.
Paddy Burke (Fine Gael)
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I understand that. Amendment No. 8 can be a potential charge on the Exchequer.
Jim Walsh (Fianna Fail)
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The Cathaoirleach should think about this. As of today, we are looking for the retention of certain councils which the Minister is proposing to abolish. There is no imposition on the Exchequer, accordingly, as the cost is built into the current structure.
Paddy Burke (Fine Gael)
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Senator, I have given you a lot of latitude on your points of order. Come on. I have made my ruling.
I have made the ruling that it is going to be a potential charge on the Exchequer.
5:35 pm
Jim Walsh (Fianna Fail)
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It is arguable that the Minister is going to create more costs than is currently the case.
David Norris (Independent)
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A Chathaoirligh, the defect in your ruling is in the wording. It is not your fault, because it clearly states "creates a charge on the Exchequer". Nothing is created.
Paddy Burke (Fine Gael)
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It is a potential charge.
David Norris (Independent)
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But it does not create anything. It could not create anything. It is there already, as the point has been argued by my colleague.
Paddy Burke (Fine Gael)
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My ruling is that it creates a potential charge on the Exchequer.
David Norris (Independent)
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One cannot create a potential anything. That is a hypothetical use of the non-existent and it is forbidden------
Paddy Burke (Fine Gael)
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Amendment No. 29 is a Government amendment and is a recommittal. Amendments Nos. 29 to 32, inclusive, and amendment No. 34 are related and may be discussed together. Is that agreed?