Independent legal advice sought by city councillors attempting to prevent the privatisation of the household waste collection service has found that it is an executive function of the city manager that cannot be interfered with and that a resolution directing the service to be retained would contravene Section 140(10 ) of the local Government Act 2001.
However, the fight might not yet be over as Labour councillor Colette Connolly told the Advertiser yesterday that the issue can still be put to the courts and she will be seeking further legal advice from her own party as well as discussing how to proceed with other elected members in preparation for next Monday’s city council meeting.
The privatisation of the refuse service has been a contentious issue ever since city manager Brendan McGrath first announced the plans at September’s city council meeting, stressing firmly that he “cannot and will not stop” the tendering process for a private operator to take over from November 18.
However, councillors continued to fight the plans and at a special meeting held on September 16 Cllr Connolly proposed a motion calling for independent legal opinion to be sought regarding the invoking of a Section 140 motion by elected members and the consequences of elected members directing the city manager to retain the refuse service.
That independent legal advice provided by Conleth Bradley SC was received by city councillors last Tuesday evening. Taking account of all the relevant information provided by Galway City Council, elected members, existing legislation and similar cases, Mr Bradley said: “I am of the view that if a resolution was passed by the elected members seeking to direct the city manager to retain the refuse service it would contravene Section 140(10 ) of the Local Government Act 2001 as it would amount to applying or extending to the performance of any function of the local authority generally and would therefore be void.”
The purpose of the Section 140(10 ) and the Local Government Act 2001 was described as being to “ensure that the manager is not stripped of an entire executive function by means of a general resolution” and that “effectively this would be the result of the proposed resolution”. However, the legal advice, seen by the Advertiser, also pointed out that legal opinion is not the same as a court determination. It also stated “the mere fact that council (the elected members or the manager ) received legal advice does not decide the matter - as one judge described - ‘beyond yea or nay’”.
Explaining this, Cllr Connolly said: “This is just legal opinion. If I were to pursue Section 140 further next Monday it would then be put in the courts’ hands and it would be up to them to decide if it is valid or not valid.”
Cllr Connolly said that it was worth seeking clarification but that she is disappointed with the advice received as it did not access thoroughly enough all 11 sections of the Section 140 Act. “It [the legal advice] wasn’t specific enough. Councillors wanted all of these examined to see if we can tell the city manager not to do something that is an executive function,” said Cllr Connolly, who added: “Section 140 is a complicated act which on one hand says we can’t interfere and then it says we can.” Cllr Connolly explained that although there is a facility for councillors to direct the city manager, these executive functions are provided for under two acts, Section 140 of the Local Government Act and Section 33 of the Waste Management Act, and that it is up to the courts to decide the matter.
“Ultimately the Local Government Act is a balancing of the powers between the councillors and the city manager. The executive has too many powers. We get elected and when we can’t change this or that we’re told it is an executive function. The water is now gone too. It is shocking that we have no say on the provision of water. It’s a slow steady decline of how we represent,” said Cllr Connolly, who also warned that in a year’s time the prices given by private operators will rise, that there will be problems with collection times and methods, and there will be a need to examine bylaws to regulate how operators provide their services.
