The Gist: A dirty little Act
Elected reps and candidates are being told that they could and should use a 1948 law to block housing for people seeking protection. They're wrong on both counts. This is the Gist.
We are going to do an election overview once the whistle is officially blown, but in the meantime I was prompted to look at a niche question after speaking to a councillor who told me that they were getting multiple emails on it.
Local Councillors in Westmeath were unhappy with a Ministerial order to establish temporary accommodation in a place improbably called Lissywollen. Some of the elected reps on Athlone Moate Municipal District council got it into their heads to try to use a piece of legislation from 1948 (with a shameful history of being weaponised against travellers) to block this plan.
The legislation was Section 31 of the Local Government (Sanitary Services) Act 1948. To save me having to type all that out loads more times, we'll just call it The Act from now on in portentous capital letters.
Section 31 of the Act allows "a sanitary authority" to issue an order prohibiting "temporary dwellings" on a number of grounds including if it is of the opinion that erection of the temporary dwellings would be prejudicial to
1) public health
2) the amenities of the locality or
3) would interfere to unreasonable extent with traffic
So, let's look at this idea. To see if elected officials have the power, first of all, to do this we need to break down two phrases. We need to see if elected representatives are actually "a sanitary authority" and we need to see if the proposed temporary accommodation facility falls inside the definition of "a temporary dwelling".
Are elected councillors "a sanitary authority"?
I urge readers to resist the temptation to make a joke to themselves on the personal hygiene habits of Moate's elected representatives and to try to answer the question seriously.
A "Sanitary Authority" is defined in Section 82 of the Local Government Act 2001 as an "urban district council or a borough (other than a county borough) corporation"
The same section defines the power set out above under the 1948 Act as part of the "water functions" of a Sanitary Authority. That's going to be an important point later on.
It then transfers those powers to County Councils in Section 83. (1) .
The Chief Executive in Westmeath had been preventing an order being issued by the elected members by telling them they're trying to bring it before the wrong meeting "In the 2014 Local Government Act, the government specified that any orders that might issue under this legislation must be considered and approved at Municipal District level." he told the burghers of Moate.
But there is a more fundamental reason they can't issue this order.
They don't have any power to do so. They lost that power over a decade ago.
In Section 7(4) of the Water Services (No. 2) Act 2013 all references to a "sanitary authority" in any enactment which related to water functions were transferred to mean Irish Water.
And, as we know, this particular dirty little clause is defined as a water function by the 2001 Act. Leaving these councillors holding an empty bag.
Who knew Irish Water would finally be good for something?
Tents or Huts?
Oh, and one more thing. Even if Irish Water went insane and wanted to issue the order while wearing a Napoleon hat, the original 1948 Act would prevent it from effecting anything other than a "temporary dwelling". But there is a special legislative meaning given to that phrase for the purposes of The Act.
Leaving aside watergoing vessels, a "temporary dwelling" is defined as
(a) Tent
(b) Van or other conveyance
c) Shed, hut or similar structure
Building an accommodation centre for housing people temporarily doesn't meet the definition of a temporary dwelling (at least, we hope not).
So, in short, the elected councillors have no power to issue any orders under Section 31 of the 1948 Act, and even if they did still have that power, they wouldn't have the power to issue them in respect of an accommodation centre which went beyond tents, vans or sheds.
Which is probably why they didn't actually issue a Section 31 Order under the 1948 Act in the end yesterday, and instead bloviated about getting an injunction.
An unsanitary business, this.
Do let any elected councillors you know that just because they receive an assertion that they have a power that they ought to exercise, it doesn't mean it's actually true. Maybe forward them this little essay, just so they'll have an explanation to hand when voters who have been misinformed raise it.
Reeling in the Disinfo
Given the merry purchase this sort of misinformation and disinformation can have as we approach an election, this might be a good moment to suggest one long-term remedy. I recently made a short submission on a Bill to allow non-commercial access and re-use of the RTE Archive. This was to fight what has been described as the asymmetry of bullshit's economics. "Chaotic information was free: good information was expensive.", as the Guardian's former Editor Alan Rusbridger described the problem.
RTE's Archive represents decades of professionally made and edited video, ready to be reused to fight barefaced lies and false assertions, all owned by the state and through it the public. It's a rare trove that the Bill would let us all make better use of.
