Mark Daly (Fianna Fail)
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I welcome the Minister of State, Deputy Noonan, to the House.

Tom Clonan (Independent)
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I thank the Minister of State for coming to the Chamber. This is the first Commencement matter I have raised and I will endeavour to deal with it as effectively as I can. I ask the Minister of State to make a statement on the provisions of the Local Government Act 2001 that have not been commenced since the enactment of the legislation and to explain why each of the sections in question have not been commenced. I have a particular interest in the power to hold public inquiries under section 212, which states:

The Minister may cause such public local inquiries to be held as he or she may consider necessary or desirable.

This is followed by several paragraphs setting out the manner in which an inspector appointed by the Minister might carry out an inquiry in a local authority area. My understanding is that there was a preliminary response to this, in that there had been a constitutional referendum on the powers of the Oireachtas to carry out investigations and the people decided this was perhaps a step too far. It has previously been stated that the principle arising from that constitutional referendum was the reason the section was not commenced. Did the Minister receive specific legal advice on this issue? Is it a legally binding opinion or is it a subjective interpretation of the outcome of that referendum?

I tabled this Commencement matter arising from the experiences of a very good friend of mine, Councillor Fiona McLoughlin Healy, who serves on Kildare County Council. I have known Fiona for almost 40 years. She is a person of the utmost integrity and a very high-calibre individual who opted for public service by standing for election to the county council. She was with Fine Gael initially and subsequently has served as an Independent councillor. In her time on the county council, she has raised extremely serious matters relating to the way in which the county council operates with regard to procurement practices and all sorts of other activities carried out at the expense of the taxpayer that are neither transparent nor fair. She has raised serious questions in respect of probity and ethical practice. As a result of raising those issues as a councillor and public representative, she has experienced an incredible and vigorous campaign of reprisal against her on Kildare County Council. That is a matter of grave concern because she is a good citizen who opted for public service and at one point ran for election to Dáil Éireann. She has been left with nowhere to go. Last week, she publicly announced that she will not be seeking re-election. That flows from all of the concerns she raised but, more specifically, the very nature-----

Tom Clonan (Independent)
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It is not my intention to name names. These matters have been dealt with on the public record in the media and are well rehearsed in the public space.

Tom Clonan (Independent)
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The only person I will name in connection with this issue is Fiona McLoughlin Healy. It is her intention not to seek re-election. I was very disappointed to learn of that decision and I was disappointed throughout her experience-----

Tom Clonan (Independent)
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Yes. As someone who has personally experienced whistleblower reprisal, I was very disappointed by what she experienced. I was particularly disappointed by those who engaged in it and those who stood by and did nothing to support her. That is why I have raised this Commencement matter. If ask the Minister of State to address the issue of whether there was specific legal advice on the commencement of that section. I thank him for his patience.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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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.

Tom Clonan (Independent)
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I thank the Minister of State for his comprehensive response. I appreciate his commitment to come back on the question of whether there was specific legal advice. Personally, I found the experience of Councillor Fiona McLoughlin Healy very disappointing and disturbing. Without going into any of the details, which are on the public record, there was a pattern of behaviour designed to personally enrich individuals who were using public office for personal gain. That is a fundamental breach of public trust. The Edelman Trust Barometer, an international survey published every year in Ireland, shows that trust in politicians in Ireland is very low. Only trust in journalists is equally low although trust in journalists is slowly improving. Despite the complications and complex issues set out in the Minister of State's response, we have to find a way to restore the public's faith in politicians. That is not a criticism of local or national politicians. It is just a statement of the fact that it has been recorded that trust is very low here. If we ask ourselves what a jurisdiction looks like-----

Tom Clonan (Independent)
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I thank the Leas-Chathaoirleach but I have been very careful not to name people or the particular areas in which they work.

Tom Clonan (Independent)
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I will finally just ask what a jurisdiction in which there is no trust in politics looks like. It looks like Capitol Hill last year. We need to be very careful.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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On that issue of trust in politicians, the vast majority of those of us involved in politics are here for the right reasons. One thing I want the electoral commission to do is to restore that trust and to be involved in engagement with the public to ensure people are aware of what we do. That is critically important.

I outlined a number of good reasons that section 212, which provides for a ministerial power to hold public inquiries, has never been commenced, not least of which is that its intended purpose is a precursor for removing democratically elected members from office, a measure that could only be contemplated in very exceptional circumstances. Other concerns include the potential cost and legal complexities involved and whether there would be public support for such a far-reaching power to potentially suspend local government functions.

Transparency International Ireland carries out a very good survey of local government transparency. It is a very good piece of work, a barometer for local authorities to work by in improving transparency, public accountability and public participation in the democratic process.