This is the second report concerning the monitoring of local democracy in Ireland since 2001. It expresses satisfaction that Ireland has made important changes since then, and stresses the commitment of the Irish authorities to move from an almost fully centralised system to a certain level of decentralisation, through an ambitious Action Programme adopted in October 2012. The report notes, however, that the constitutional protection of local self-government is rather weak, local governments can still not be said to manage a substantial share of public affairs, the administrative supervision of their activities by the central level remains high and consultations with local authorities and their associations are not systematic or sufficiently regulated. The report also draws attention to the very limited powers of local authorities to levy taxes or to set rates within the limits of the law.
It is recommended to the Irish authorities that they revise their legislation in order to ensure that the subsidiarity principle is better enshrined and protected in the law, implement the Action Programme rapidly with a view to devolve more powers and financial autonomy to local governments and improve the financial equalisation procedure. The authorities are equally encouraged to continue in the existing regional development efforts. The Government is invited to develop the procedures and mechanisms of consultation with local and regional authorities on matters concerning them directly, so as to entrench these procedures in the domestic legislation and in practice. Finally, the recommendation calls on the Irish authorities to sign and ratify the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207).
The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.
The Charter was ratified on 14 May 2002, with a declaration to the effect that Ireland intends to confine the scope of the Charter to the following categories of authorities: county councils, city councils and town councils.
Constitutional protection of local self-governments did not change during the evaluated period and is rather weak.
Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.
It cannot be said that local government in Ireland manages a substantial share of public affairs, certainly when compared to local government in other European countries. The interlocutors the rapporteurs met during the visit were sceptical about the policy paper granting any new role to local authorities in education, health, welfare, public transport, and policing, which are still essentially run by the central Ministries or agencies.
Since the last Congress Recommendation, no new competences have been transferred to local authorities. In fact, the opposite is true, for example the centralisation of water management, which was mentioned at several meetings. The rapporteurs were informed that, if anything, the transfer of powers has travelled in the opposite direction - from local to the national level. However, as indicated in Section 3.1.3, a certain limited amount of delegation and devolution may actually see the day in the near future as a result of the 2012 policy brief. The Government, through its Action Programme, is aiming to achieve a long term expansion of the role of local government, particularly by virtue of the enhanced confidence and credibility that they hope will ensue from the improvements that will be implemented through the Action Programme, particularly in local government efficiency, finance, governance and structures.
This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.
Consult reply indicated at article 3.1
The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.
In the rapporteurs’ opinion, this principle is not well respected in Ireland, especially with regards to discretion and consultation. Neither is the subsidiarity principle sufficiently incorporated into the Irish legal system. The ultra vires principle limits the right of local self-governments to manage their own affairs under their own responsibility. The LGA 2001 partly improved the situation, albeit not sufficiently.
Representatives of local authorities gave several examples of situations that should, under the principles of Charter, be under full discretion for local council decisions, but are very much centrally regulated, supervised or revoked. Discretion is highly circumscribed also by the use of national regulations, guidelines, statutory instruments, and frequent obligations to secure prior approval in advance of decisions being taken (see for example information about local public finance).
As already indicated, the application of the ultra vires principle to local authority functions has been significantly relaxed and an extensive range of central controls and requirements for prior approval have already been dispensed with or reduced (including various matters listed in Table 2 of Chapter 4 of the Action Programme). More significantly, it has been decided to extend further local authority discretion to a number of local authority functions, as set out in the Action Programme. The Government also claims that the operation of the principle of subsidiarity will be enhanced under the new arrangements, whereby a significant number of functions will be performed on a fully devolved basis at district level, without reference to county level.
The Chief Justice’s Office clarified the situation for the rapporteurs in a written comment, which noted: “However, Article 4 para.1 of the Charter provides that the basic powers and responsibilities of local authorities shall be prescribed by the constitution or statute. In Ireland, such powers and responsibilities are set out in legislation and local councils can only exercise the powers and responsibilities that they are permitted to do in the legislation.”
This letter also explained the relations between managers and councillors further as follows in a telling example: “… most of the powers of local Councils are carried out by a public servant known as a City/Manager. Councillors can direct the Manager to do something. If they fail to do this, the Councillors can sue the Manager in court following a motion passed by the Council. Section 140 of the Local Government Act 2001 provides that the elected Councillors may pass a resolution requiring that any particular matter or thing specifically mentioned in the resolution and which the local authority or the Manager can lawfully do or effect to be done or effected in performance of the executive functions of the local authority, be carried out. It must be a matter which the Manager can lawfully do. This power was considered by the Supreme Court in the case of P & F Sharpe Limited v Dublin County Council [1989] IR 701. A case which illustrates the role of the Manager is East Wicklow Conservation Community Limited v. Wicklow County Council and Treacy [1997] 2 ILRM 72. The Council wished to build a landfill and commissioned consultants to find the most suitable location. On receipt of the report, the Councillors passed a resolution rejecting the proposal. The Manager confirmed that he did not intend to comply with the resolution of the Councillors. The Manager was of the view that legally he was obliged to provide a place for the deposit of domestic waste material collected by the Council. In the High Court, Mr Justice Costello held that the Manager was not required to comply with the Councillors’ resolution because the works were required under legislation. On appeal to the Supreme Court, M. Justice Blaney upheld this decision”.
A regular and standard system of consultations between central government and local authorities has not been functionally established. There are no general provisions in Irish law outlining a general principle or right for local authorities or their associations to be consulted by national government. However it should be noted that numerous specific provisions of Irish law do provide for consultation of local authorities in specific instances. The opinion of the rapporteurs is that the duty to consult all relevant matters with local authorities in a regular and systematic way is so important that, as a core principle, it should be part of local government legislation, and not only mentioned on a “piece by piece” principle.
The preparatory process for the “Action Programme” can be used as an example. According to the information from various interlocutors, there were some public meetings organised by the DECLG, a questionnaire was sent out to local authorities with a two-week deadline for replies, and the Minister held some separate meetings with the different associations. The responses to the questionnaire were analysed by an external agency and considered in the Action Programme.
The Lord Mayor of Dublin informed the rapporteurs that they were not consulted on the decision to establish a central water authority and to transfer this responsibility from the local to the central level. Apparently, Dublin authorities had proposed several changes to the existing legislation, none of which were either reflected in or incorporated into the policy paper. The Government explained that a comprehensive public consultation process had been conducted in 2012 regarding the proposed reform of the water sector and Irish Water had been established as an independent State-owned company. These opposing views are symptomatic of the issues that exist concerning the consultation process in Ireland.
That being said, all interlocutors confirm that the quality of consultation processes improved between the monitoring visit of the Congress in October 2012 and the follow up visit in May 2013.
Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.
Consult reply indicated at article 4.1
Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.
Consult reply indicated at article 4.1
Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.
Consult reply indicated at article 4.1
Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.
Consult reply indicated at article 4.1
Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.
Consult reply indicated at article 4.1
Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.
Alteration of boundaries can be initiated by local governments, but also centrally. According to Article 61.—(1) of the LGA, "Following consideration of a report by the Local Government Commission with respect to the boundary of a local authority, the Minister may, by order, alter the boundary of the relevant county, city or town.
Some consultation in advance of boundary changes is formally provided for in law, but can be cosmetic in practice. Referendums are not provided for by law in the case of boundary changes, although local plebiscites are permitted by law for a very limited number of other local issues (such as changing the name of an area, etc.) The legislation that governs the alteration of local authority boundaries [Section 29 of the LGA 1991 and the Local Government (Boundary Alteration) Regulations 1996 (S.I. No 217 of 1996)] contain provisions for consultation. These procedures include the publication of newspaper notices, submissions by interested persons (which must be considered) and the availability for public inspection of the proposal.]
The local authorities claim that there was not sufficient consultation as foreseen in Article 4, para.6 of the Charter (in due time and in an appropriate manner) on the new territorial structure proposed by the “Action Programme”, either with citizens, councillors or associations. The DECLG contends that they did consult. The rapporteurs note that the lack of an institutionalised procedure and the fragmentation of the associations representing local authorities must have contributed to creating this unsatisfactory situation.
The DECLG has informed the rapporteurs that a Local Electoral Area Boundary Committee has been recently established to review and make recommendations on local electoral area boundaries in the context of the results of the 2011 census and the Action Programme. The Committee has been asked to report back no later than May 2013. The Committee has issued a public invitation for submissions as part of the review process.
Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.
The LGA significantly improved the right of local self-governments to determine their own internal structures (Article 158-1), but in reality the financial limits provided by the central government still remain the core determinant of the number of staff employed by local authorities.
The conditions of service (such as qualification requirements) of local government employees are to a large extent determined centrally. Pay scales for most local authority staff are set on a nationwide basis through ay structured negotiating mechanism with the Local Government Management Services Agency (representing the Government and County Managers) negotiating with the trade unions. For the past number of years, there have been decreases in the pay scales so as to respond to the national funding emergency and, partly, as a result of the increased insistence for value for money in relation to public spending in general. In March 2012 local authority staff salaries stood at 28,765 euros per annum as compared to 37,243 euros in mid-2008 which might be acceptable, taking into account the broader economic constraints and the need for savings on all levels of government.
The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.
Consult reply indicated at article 6.1
The conditions of office of local elected representatives shall provide for free exercise of their functions.
The LGA significantly improved the status of local elected officials, but some obstacles still remain. The LGA clearly defines the code of conduct that applies and also the incompatibilities.
As indicated under its Section 3.2.5, most members of councils work for local self-governments on a part time basis and receive financial compensation. However, there is no legislation containing rules for private employers to provide “free time” to elected officials for participation in local matters. This situation prevents many private sector employees to be a candidate for local elections, despite of the fact that most of the official business of councillors occurs outside of normal business hours.
They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.
Consult reply indicated at article 7.1
Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.
Consult reply indicated at article 7.1
Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.
The adoption of the LGA and consequent amendments to the legislation did not manage to decrease the high level of different forms of central supervision on local government activities (a telling statistic: the word “Minister” appears 461 times in the LGA).
The administrative supervision of local government is detailed – national government remains highly interventionist in local decision-making. In their written replies to questions put by the rapporteurs, the DECLG maintained that: “Where responsibilities rest with local authorities, the exercise of these is occasionally subject to control and monitoring by Government Departments at central level with a view to – aiming to ensure consistency (e.g. in terms of standards and level of service) throughout the State in programmes and schemes; maintaining control over the financial impact of local authority activities; keeping Government abreast of the progress of programmes and activities at local authority level; ensuring adequate compliance with national objectives and international obligations. For example, the specific sanction of the Minister for the Environment, Community and Local Government is required in particular instances, such as for borrowing and lending, which are set out in the Local Government Act 2001. In the light of the current very difficult economic circumstances, it has been necessary for the Department of the Environment Community and Local Government to introduce additional financial management controls and monitoring in relation to local government expenditure.”
The following are some further examples of this “interventionist” approach: The central government can, under Section 199, 8a of the LGA, still revoke any local bylaw, if it is considered “objectionable”, even if they have never done so. According to the section 212 of the LGA, the Minister may cause such public local inquiries to be held as he or she may consider necessary or desirable (a) for the purposes of section 216(1) (a) or the functions conferred on him or her or by any other enactment, or (b) in relation to the performance of the functions of any local authority. The DECLG explains that Part 20 of the LGA, of which section 212 is part and which provides for matters related to public local enquiries, has not yet been commenced. Part 20 thereof was intended to replace a number of existing provisions in local government legislation, the key provision of which is section 83 of the Local Government Act 1941 (which remains in place). Section 83 enables the Minister to appoint a person to carry out a local enquiry “for the purposes of any of the powers and duties for the time being conferred or imposed on him”. This power was envisaged to be appropriate where a local authority’s functions are not being duly and effectually performed. The power has been used only in the most exceptional circumstances.
As mentioned before, the new Action Programme contains the risk, if implemented as it is, of increasing the level of supervision even more through the establishment of a new additional National Oversight Office to monitor the efficiency and effectiveness of local authorities including, inter alia, their compliance with national objectives and policies. A lot will depend on the final Statute of the Office that is expected to operate independently of the DECLG. The DECLG also argues that the main goal of the Office will be evidencing local authority performance and consistency with government policy and not direct supervision. The Government stresses that local authorities are expected to be important stakeholders of the process.
The specific issue that should be mentioned here is that there are quite a number of cases where local government issues have been raised in courts in the context of the services which local councils provide and the law concerned with such services (legal supervision). For example in the case of Brady v Cavan County Council [2000] 1 ILRM 81, the applicant claimed an order against the local council requiring it to keep the roads in its care in an adequate condition, despite the plea that to do so would leave the council with inadequate funds to discharge their duties in other areas such as public housing or water sewerage facilities. A majority of the members of the Supreme Court rejected this claim, resting its decision on the ground that the council did not have the means to comply with the order and that there was no way of knowing whether the central government would have assisted it. This case concerned a poor local authority that would take twenty two years to bring its entire road network into a satisfactory condition. Another aspect of the judgment is the separation of powers between the judicial branch of government and the legislative branch of government which is established by the Constitution. The role of the courts is not to make policy decisions or to direct how government monies should be spent. That is a matter reserved for the legislature.
Another specific way of supervision is when members of the public, who feel that they have been treated unfairly, may also make complaints against local authorities to the Ombudsman. The Ombudsman can examine complaints about how local authority staff carries out their everyday executive and administrative activities. These include complaints about delays or failing to take action.
Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.
Consult reply indicated at article 8.1
Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.
Consult reply indicated at article 8.1
Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.
Consult reply indicated at article 9.1
For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.
Consult reply indicated at article 9.1
As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.
Consult reply indicated at article 9.1
Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.
Consult reply indicated at article 9.1
The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.
Consult reply indicated at article 9.1
Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.
Consult reply indicated at article 9.1
Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.
In the rapporteurs’ opinion, it is difficult to claim that these provisions are fully respected. The system of calculating real costs for all “own” and “delegated” local government functions are not operational and the disputes concerning the appropriate or non-appropriate level of funding are not evidence-based. Rather surprisingly, local governments and their associations do not regularly complain against possible underfunding and limited financial management discretion.
The revenues of local governments significantly decreased during the period of the economic crisis after 2008. Apparently, for the time being, these cuts have not had a dramatic impact on the quality of local public services, although several local governments claim that their financial situation is not sustainable from a medium or longer term perspective.
The DECLG’s point of view concerning the relation between responsibilities and resources of local governments is that, by adopting an appropriate budget to meet identified needs, local authorities have a good level of ability to provide themselves with the financial resources that they need to discharge their functions.
Several local authorities are currently in a very difficult financial situation. Some sources of revenue have effectively disappeared such as development levies; central government grants have been cut, and local authorities have been told to freeze local rates on commercial properties. The impression the rapporteurs had during the visit is that public sector savings are not proportional between central and local level, with heavier impact locally. The Government, in their written replies to the rapporteurs, maintained another point of view, according to which local authorities have had an adequate level of funding in 2012 to provide a reasonable level of local services to their communities.
The public finance system in Ireland cannot be said to constitute a sufficiently diversified and buoyant system, keeping pace with the evolution of local tasks. Local governments manage one local tax, commercial rates and can collect fees for local services. Especially smaller and economically weaker municipalities are too dependent on central grants.
The new property tax to be introduced is slightly changing the situation in local finance. Because it is expected that local governments will have the right to modify the rates within a given interval, this tax is expected to establish a better link between local revenue and expenditure (although the tax will be centrally administered). The Government’s plan is to return 80 % of the revenues back to the local authorities where the tax was collected and use only 20 % of revenues for equalisation purposes. On the other hand, this tax will not mean extra revenues for local governments – this is almost impossible given the current economic situation in Ireland.
Local financial managers indicated that the level of discretion as to how to use revenues is strictly limited – about 90 % of revenues need to be used to cover “fixed” costs. And as said earlier, the equalisation system remains a mystery to practically everyone in the local government system.
Concerning borrowing by local authorities, the LGA (Article 106) states that a local authority may borrow money in any manner which it considers suitable for the effective performance of its functions. However, borrowing by a local authority under this section can only be with the sanction of the appropriate Minister.
Ireland recorded a General Government Deficit in 2002 and with further deficits forecast, the Government, in the context of Budget 2004, set a limit of 200 million euros for the contribution of the local government sector to the deterioration in the General Government Balance (GGB) in any one year. This 200 million euro limit was reaffirmed in 2009 when the DECLG reiterated the importance of controlling the local government sector's GGB contribution and put in place a range of specific measures to ensure that the annual outturn remained within the 200 million euro deficit limit.
The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.
Consult reply indicated at article 9.1
Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.
Different parts of the LGA regulate local authorities’ right to associate and co-operate.
Section 85 of the LGA provides that two local authorities may enter into an agreement for one of them to perform a function on behalf of the other. Section 86 provides for two or more local authorities to make arrangements for the joint discharge of any of their functions. Section 87 provides for the Minister for the DECLG to make regulations requiring local authorities to enter into an agreement for one authority to carry out the function of another authority. The use of the powers provided in section 85 is a “reserved function” of the elected members of each local authority.
Section 225 of the LGA regulates the right to associate as follows: “ … (2) A local authority may hold membership of an association of local authorities. (3) An association of local authorities may carry out such activities as are necessary to represent the collective interests of the local authorities which constitute its membership, including – (a) the undertaking of research and other studies, (b) the promotion of education and training, (c) the provision of policy support and other assistance to its constituent authorities as regards any matter relating to local government, or (d) the making of submissions to the Minister or other public authorities as regards such matters. (4) An association of local authorities shall operate in accordance with its constitution or other procedural rules (by whatever name called).”
This part of the LGA also provides statutory recognition for local authority representative associations.
According to the DECLG, there are examples of cooperation between local authorities throughout the country that provide efficiencies alongside enhanced customer services. Under their local government reform programme, one of the important local authority initiatives is that of Shared Services, which will provide an important mechanism to make savings in administrative costs across local authority boundaries, without having an adverse impact on front-line services. They expect savings that could potentially be in the region of 10-15% of baseline costs. Priority areas for consideration include regional Shared Payroll, Integrated Procurement, Transactional HR and both Back/Front Office ICT Services. The re-organisation of these ‘back office’ functions will afford local authorities the opportunity to manage both their staff and their assets in a more cost-effective manner in the long term.
The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.
Consult reply indicated at article 10.1
Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.
Consult reply indicated at article 10.1
Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.
In Ireland a possible remedy exists, but is not known to have been used in practice. Very seldom does a local authority challenge an act of a higher authority (or a national law) in court.
The Constitution entrusts the power of judicial review to the High Court and the Supreme Court. Article 34.3.2 of the Constitution states that: “Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court.”
Therefore, a local authority could challenge the constitutionality of legislation enacted by the Oireachtas in accordance with Article 34.3.2, but it is highly unlikely to do so. It could also seek judicial review of the actions of a higher authority such as a Government Minister if, for example, it was alleged that the Minister breached fair procedures in making a decision.
Each Party undertakes to consider itself bound by at least twenty paragraphs of Part I of the Charter, at least ten of which shall be selected from among the following paragraphs:
– Article 2,
– Article 3, paragraphs 1 and 2,
– Article 4, paragraphs 1, 2 and 4,
– Article 5,
– Article 7, paragraph 1,
– Article 8, paragraph 2,
– Article 9, paragraphs 1, 2 and 3,
– Article 10, paragraph 1,
– Article 11.
Each Contracting State, when depositing its instrument of ratification, acceptance or approval, shall notify to the Secretary General of the Council of Europe of the paragraphs selected in accordance with the provisions of paragraph 1 of this article.
Any Party may, at any later time, notify the Secretary General that it considers itself bound by any paragraphs of this Charter which it has not already accepted under the terms of paragraph 1 of this article. Such undertakings subsequently given shall be deemed to be an integral part of the ratification, acceptance or approval of the Party so notifying, and shall have the same effect as from the first day of the month following the expiration of a period of three months after the date of the receipt of the notification by the Secretary General.
