Dear Minister Hogan,
We refer to the Local Government Reform Bill 2013 currently at Committee Stage in the Seanad and the Irish Traveller Movement wish to highlight our concerns therein re the impact on Travellers. Our 2 principal concerns are as follows;
1. The Huge Increase in Reserved Functions as per Schedule 3 of the Bill
Under the proposed reserved functions, where elected councillors perform decisions as opposed to the County Manager and Local Authority Staff, we believe this will unfairly affect Travellers as evidenced in May this year when €50 million allocated for Traveller Accommodation was returned by some Local Authorities, and for the general lack of progress on Traveller accommodation throughout many local authorities over the last 14 years.
Seeking further advice on the matter, we note that the impending implications are as follows:
Courts generally consider exercising a reserved function as a political rather than administrative decision (as it is taken by a vote of elected councillors). Because of the separation of powers principle provided for in the Constitution the Courts are very reluctant to consider any political decisions (although the mechanism of Judicial Review is available). Therefore it is likely that any decision made relating to the additional 176 reserved functions set out in Schedule 3 will be immune (in most circumstances) to challenge in the Courts. [44 reserved functions are to be performed by municipal district members, 24 by either municipal district members or local authority councillors and 108 which can only be performed by local authority councillors.]
Similarly, the Ombudsman’s office cannot examine/investigate any decision/procedure/policy that relates to a reserved function, for the same reasons i.e. constitutional deference to the principle of separation of powers. This means that the Ombudsman will also be prevented from examining any area related to the above 176 reserved functions.
We note Minister Howlin’s comments in the Dail (23rd October 2012) when he denied that access to judicial review would be restricted. However, even if the re-categorization of functions as reserved only resulted in removal from the remit of the Ombudsman, judicial review is only available at a cost of approximately €15,000 so access to justice would be preserved only for those who can afford it.
Some examples of the 176 new reserved functions (with those most relevant to Travellers in bold) in Schedule 3 of the Local Government Reform Bill 2013 include;
8 Establishing a community fund for the purposes of supporting community initiatives as per Section 109 of the Principal Act, Local Government Act 2001.
15 and 16 the delegation to a designated body of a function including maintenance in respect of management and control of any specified dwellings – Section 9 of Housing Misc provisions Act 1992 and Section 30 of the Housing Misc Provisions Act 2009
36 Making of Bye-laws in respect of use of temporary dwellings (i.e. caravans) – Section 30 of the Local Government Sanitary Services Act 1948
37 Making an Order prohibiting the erection or retention of temporary dwellings (i.e. caravans) – Section 31 of the Local Government Sanitary Services Act 1948 – this is an eviction notice and because this is now a reserved function to be performed by elected councillors/municipal district members,, this means that the fairness of such a notice cannot and will not now be examined by the Courts. So access to justice is restricted as the recipient can no longer avail of the Courts and thus there is no avenue available to challenge this eviction notice.
4 Requiring that specified action be taken in accordance with Section 127 for the purposes of consultation with the local community – Section 127
5 Determining the policy of the local authority or municipal district members – Section 130
15 Deciding to vary or modify a proposed local authority own development or deciding not to proceed with the development – Section 179 of the Act of 2000
16 The preparation making adoption or variation of a housing services plan or a draft plan – Section 14 of Housing Misc Provisions Act 2009 – not yet commenced. EG Traveller Accommodation Plan?
19 The Making of a decision re representation of the views of the local community – Section 64
20 A decision (or refusal) by a local authority to provide assistance in money or in kind under Section 66 for promotion of the interests of the local community – Section 66
43 Adoption of a policy for the effective performance of functions under section 58(1) of the Housing Act 1966 or an amendment to such a policy. Section 9 of the Housing (Miscellaneous Provisions) Act 1992.
45 The adoption of a Traveller accommodation programme or an amendment to, or replacement of, the programme. Section 7 of the Housing (Traveller Accommodation) Act 1998.
46 The making of an appointment to a local Traveller accommodation consultative committee. Section 22 of the Housing (Traveller Accommodation) Act 1998.
48 Making and amending a scheme that determines the order of priorities for allocation of affordable houses made available for sale under Part 2 of the Housing (Miscellaneous Provisions) Act 2002. Section 8 of the Housing (Miscellaneous Provisions) Act 2002.
49 The making or amendment of an allocation scheme determining the order of priority to be accorded in the allocation of dwellings. Section 22 of the Housing (Miscellaneous Provisions) Act 2009.
50 The Making and revocation of a rent scheme providing for the manner in which rents and other charges in respect of dwellings shall be determined. Section 31 of the Housing (Misc Provisions) Act 2009
51 The drawing up and adoption of, and the amendment of, an anti- social behaviour strategy. Section 35 of the Housing (Miscellaneous Provisions) Act 2009.
52 The adoption or amendment of a Homelessness Action Plan.
Section 40 of the Housing (Miscellaneous Provisions) Act 2009.
85 The making by a local authority of bye-laws declaring all or any part of its functional area where it is satisfied that horses in that area should be licensed . Sections 13 and 17 of the Control of Horses Act 1996.
86 The making of bye-laws providing certain exemptions in relation to a horse license. Sections 13 and 19 of the Control of Horses Act 1996.
87 The entering by a local authority into arrangements with another local authority, or any termination thereof, in relation to the application for and the granting of horse licenses on its behalf. Sections 13 and 20 of the Control of Horses Act 1996.
103 Establishing, dissolving or replacing a local community development committee. Section 49A (inserted by section 35(1) of the Local Government Reform Act 2013).
104 Appointment of members of a local community development committee. Section 128D (inserted by section 35(2) of the Local Government Reform Act 2013).
105 Approving a local and community development programme. Section 128B (inserted by section 35(2) of the Local Government Reform Act 2013).
106 The approval of a Local and Community Plan. Section 128C (inserted by section 35(2) of the Local Government Reform Act 2013).
2. Community Development – alignment within local government structures
The Irish Traveller Movement’s other concern under the proposed bill as voiced in related fora is the subsuming of local and community development into the local authority structure thus removing the independence, legitimacy and critical voice of community development groups. Specifically Traveller community development projects who have accumulated over 30 years’ experience advocating for Travellers’ rights and working with local authorities in relation to accommodation, inclusion initiatives, monitoring, housing policy and integration. The Irish Traveller Movement concerns remain that there is lack of confidence among Travellers and their representative groups, on the suitability and reliability of local authorities to progress Traveller needs within the community given the well documented lack of progress on Traveller accommodation among many local authorities and the under spend of allocations during the last year, in particular.
The requisite response by Traveller representative groups to advocate for further progress would likely come into conflict with those local authorities deemed to be responsible for funding provision, therefore independent monitoring would also be undermined.
Although we note that Minister Hogan confirmed that an alignment working group has been established, it is unclear from his responses to PQs in the Dail whether any of the 11 recommendations at page 4, 5 and 6 of the Final Report of the Local Government/Local Development Alignment Steering Group March 2012 have been implemented.
In this regard we note the late inclusion of government amendments [particularly the amendment of Section 128 B (1) (g) to remove the function of the Local Community and Development committee “to optimize resources for the benefit of local communities” and just leaving the following for that function – “to improve efficiency with which publicly funded local and community resources are used. This means that the legislative remit of the committees is now focused on economic efficiency than community and social benefit. We are also concerned about the removal of the entire of Section 128(c) regarding detail of Local and Community Plans and insertion of a replacement section into Section 66 or part 7 regarding Local Authority Governance Management] at stage 3, Committee stage in the Seanad.
Minister, we welcome your consideration of these matters and look forward to your response.
Brigid Quilligan, Director ITM