To get information out of council managers, councillor considers seldom-used “sledgehammer”-like power

At July’s monthly meeting of Dublin City Council, Fine Gael Councillor Ray McAdam seemed frustrated.

He still couldn’t get a satisfying answer to why the council had changed course from planning to install 350 shared on-street secure bike storage lockers, or bike bunkers – to a review and rethink of the idea.

The roll-out was announced in 2021, but then the council rowed back on that in April of 2023. For months, councillors have been asking why.

At the July meeting, the council management’s response was, as it has been in the past, that they’d decided they needed to do a review, and they’d bring the results of the review to councillors when it’s done.

“I honestly believe senior management have an awful lot to answer for in respect of this,” McAdam said after this. “There are still an incredible number of questions that require answers.”

“I spoke to [meetings administrator] Ruth [Dowling] about a potential Section 140,” McAdam said at the meeting.

Wait, a Section One-What-Now?

It turns out that McAdam was talking about proposing a resolution under Section 140 of the Local Government Act 2001 – a provision that lets the elected councillors, if they vote to back such a resolution, order the council executive to do something.

In Ireland’s system of local government, elected councillors have relatively little power – and complain about it often. Instead, it’s the council’s appointed chief executive, and the people hired to work for him, who wield the most clout.

And yet, councillors rarely break out their Section 140 power to try to make council managers bend to their will. If they’ve got it, why don’t they use it?

The issue

The issue at hand on that meeting on a Monday evening, 3 July, was McAdam’s desire for a more substantial explanation of the reason for the council’s change of course on the further roll-out of the bike bunker programme.

“So we appointed, we basically have undertaken a review,” said Patricia Reidy, a senior engineer at the council, at the meeting.

“And this is important before we roll out bike bunkers any further because basically there’s a lot – it’s not a straightforward gig to be honest – there’s a lot to it,” she said.

“How are we going to – so, the best model, is it a one-stop shop? Are we going to … tender for basically an all-in package where they supply the kit, they deliver the kit, will they maintain the kit? Are they going to operate the kit?” she said.

“The financial aspects of it, all of that has to be just pinned down and teased out because we want to make it as efficient and as effective as possible,” she said.

The council will present a proposed strategy to councillors at a scheduled meeting of their transport committee in September, she said.

The council started testing bike bunkers as far back as 2014. It then installed more towards the end of 2019 or early 2020, before announcing the wider roll-out of 350 more in 2021.

McAdam said later on the phone that he wasn’t planning to try to use Section 140 to force the council to roll-out the bike bunkers.

“What I was looking at was the use of Section 140 in order to ensure clarity one way or the other as to what’s happening with the bike bunker programme,” he said.

“I am at a loss as to why we need a full root-and-branch review,” he said.

A power with a history

Labour Councillor Dermot Lacey, who first joined the council in 1993, says he only recalls one use of Section 140 – by then-Labour Councillor Joe Connolly.

A 10 May 1983 article in the Irish Times tells how members of Dublin County Council as it was at the time tried to get the county manager to buy 100 acres of land on the Naas Road “for amenity open space”. Connolly’s resolution didn’t get the votes.

At the time, this was a motion under Section 4 of the City and County Management (Amendment) Act 1955. The power would be renamed Section 140 under the Local Government Act 2001.

And then it would be stripped back after a corruption scandal (in which Connolly was not implicated).

The Tribunal of Inquiry into Certain Planning Matters and Payments, also known as the “Mahon Tribunal” was set up “to inquire into concerns regarding corruption in the planning process from the late 1980s to the late 1990s”.

“It is clear from those inquiries that these concerns were well-founded,” its report says. “Throughout that period, corruption in Irish political life was both endemic and systemic.”

“In the late 1980’s and early 1990’s Dublin County Council rezoned thousands of acres of land, repeatedly against the advice of the professional planners,” the report says.

“There was a widespread belief that many of these rezoning decisions had been bought by developers and that some public officials, including local councillors, were for sale,” the report says.

“This Tribunal is satisfied that at least for some councillors in Dublin County Council, corruption had become a regular aspect of their public role,” it says.

The Mahon report came out in 2012, and it recommended the restriction of councillors’ powers under Section 140, to keep them from using it to make planning decisions.

That power had allowed councillors without planning expertise to overrule professional planners, leading to bad decisions, and also rewarded planning applicants with enough connections to get help from councillors, the report said.

“There is also a view that in some instances at least some elected members have used their powers under s. 140 corruptly,” it said.

Minister for the Environment, Community and Local Government Phil Hogan, of Fine Gael, pledged to “review reserved powers under section 140 of the Local Government Act 2001 to ensure that Councillors will no longer be allowed to direct the executive in respect of planning functions”.

That was, indeed, among the changes made by the Local Government Reform Act 2014.

This whole history has left a bad smell around the power, says Lacey, the long-time Labour councillor. So “there has been a tradition of [councillors] trying to reach agreement [with the council]”, he said.

McAdam, the Fine Gael councillor, was first elected in 2009. “I’ve never seen a Section 140 motion brought,” he said.

Practicalities

It’s not just this tradition that keeps councillors from successfully exercising their power to tell the council what to do, though.

Although Lacey and McAdam did not recall it, in 2021, independent councillors Cieran Perry and John Lyons, and Right to Change Councillor Sophie Nicoullaud, brought a Section 140 resolution calling on the council to move to take back a council-owned site at O’Devaney Gardens from the developer Bartra.

But, like Joe Connolly in the 1980s, they weren’t able to get the votes from their fellow councillors to pass the resolution: 25 voted in favour and 36 against.

This points to a very practical problem with trying to use a Section 140 resolution to force council managers to do something.

On a council with 63 seats, filled by people representing Fine Fáil, Fine Gael, Sinn Féin, the Social Democrats, the Labour Party, the Green Party, People Before Profit and Right to Change – as well as independents – it can be hard to get the votes on a contentious issue.

Even if a councillor could get the votes to pass a Section 140 resolution, the council executive might then find that either they didn’t have the money to do whatever was ordered, or could not legally do it.

And also, “it’s like a sledgehammer”, says Social Democrats Councillor Cat O’Driscoll.

Councillors get a lot of things done based on good working relationships with council executives and staff. And using a sledgehammer on them could certainly sour those relationships and make it harder for that councillor to get other stuff done.

Says Labour Councillor Joe Costello: “I suppose councillors like to think of their work as in partnership with the local authority.”

An “exceptional” issue

Given all this, why did McAdam, the Fine Gael councillor, raise the prospect of using a Section 140 resolution?

“It’s an exceptional situation,” McAdam says. “You can’t be using the threat of Section 140 willy-nilly. If you did that, the department would probably take the power away.”

He said he hasn’t made a decision yet on whether to bring the resolution, he says.

If the report on the bike bunkers isn’t on the agenda for the September transport committee meeting, and he’s not given a good reason why it isn’t, “then I will begin consulting my colleagues”.

McAdam named Lacey as one of the councillors he’d go to, to talk about supporting a resolution to force more information out of the council on the issue. But Lacey did not seem charmed by the idea.

“I find Fine Gael’s newfound commitment to local government powers to be annoying,” he said by phone, pointing to Phil Hogan and the Local Government Act 2014 stripping away local councillors’ powers.

“Pardon my cynicism, but we’re 12 months away from a local election and Fine Gael suddenly embraces local government powers? I find that a little hard to take,” he says.

Beyond that too, “Councillors have very little power. We do have this power, but it is a very blunt instrument, and blunt instruments are seldom the way to get agreement on anything,” Lacey said.

However, “If Ray puts forward a proposal we would look at that seriously,” he said.