We were promised an amendment by the Minister. We have no evidence that the Minister has fulfilled his promise to the House. I wonder will the Minister tell us what has happened.
Land Bill, 1945—Report and Final Stages.
Question proposed: "That the Bill be received for final consideration."
In regard to what?
In regard to an amendment covering the problem of accepting the Land Commission's certificate as prima facie evidence of a man not occupying a house. I suggested on the Committee Stage that the Minister might try to introduce a definition of “residence” with a view to putting him in the position of accepting my amendment in relation to the occupation of a house. I wonder will the Minister tell us now what he has done to fulfil the promise. We did not divide on that amendment because the Minister undertook to look into the matter with a view to meeting us.
It was not so much a question of the amendment that was in Deputy Hughes' mind, as I understood it, or as it appears in the Official Reports. What Deputy Hughes was concerned with was trying to secure from me a definition of "residence" and I promised to look into the matter. The whole difficulty, as I explained to the Dáil before, is the impossibility of defining "residence" in legal fashion. We all know what residence in fact is, but residence in law might mean one of 100 different things. I had the whole question of a definition of "residence" examined and I find that if I tried to give any description of "residence" it would lead to endless litigation. Any definition of "residence" that has been made in wills and so on has always been difficult to uphold in the law courts. The Dáil, I think, quite understands what exactly it is that we mean by "residence". These people with whom we are concerned are people for whom houses are built at public expense. They have never lived in the houses. Worse than that, they make pretence of living there by installing a little furniture, but never go near the place. A farm given to a man who does not live in the house or on the farm can hardly be utilised according to the proper methods of husbandry which forms part of the condition under which the occupier gets the holding. I gave a particular instance here during the previous stage in regard to the question of legal residence and residence in fact and, having had the matter thoroughly examined by the legal experts in the Land Commission, I find it would be impossible to define "residence" in the particular clause of the Bill that would give us an effective instrument for putting the Bill, if it passes, into operation. I promised to examine the matter. I have examined the matter and I find it is impossible for me to give any fairer definition than I have given.
I think it is highly unsatisfactory. I believe the Minister appreciates what our difficulty is in the matter. Our case was that it is an elementary principle in the dispensation of justice that a charge has to be proved and that a defendant has a right to defend himself. Here we are asked to bring in a provision under which a certificate of the Land Commission is to be accepted as conclusive evidence and denying the man who is supposed to have broken his contract an opportunity of defending himself. I think it is going to bring the courts into contempt and to lessen the respect which our people have for the administration of the courts. It is on that principle that we appealed to the Minister to try to meet our point, whatever the legal difficulties were. Possibly I did not appreciate these difficulties as much as the Minister did. But I did feel that there was a very big principle involved and that the Minister should go a long way to try to meet the issue that we raised—that it was not good enough for any Department of State or any individual to claim the right to go into court and ask the court to accept a certificate as conclusive evidence. I am very disappointed with the Minister's telling us now that he has not succeeded in getting over the difficulty. I felt that the Minister would find some way out of the difficulty. I believed at the time that he was anxious to meet the issue that was raised. It is very unsatisfactory as it stands.
I should like to point out to the House that this is the Report Stage of the Bill. The Report Stage deals with what has been done in Committee. There is no amendment before the House at present and, therefore, there is no ground for the discussion of this at all. On the Fifth Stage the Deputy can discuss what is in the Bill.
Deputy Hughes is dealing with an undertaking given by the Minister.
The Deputy asked a question and the Minister gave an answer which the Deputy said was unsatisfactory. I think we ought to leave it there and proceed to the next stage.
I should like to explain that there was not the least intention on my part to deceive anybody and no attempt to put any stage of this Bill through by a trick or any particular promise which has not been kept. I was asked to give a definition of "residence" under this clause.
The word "trick" was not used from this side of the House.
I agree.
The Minister did not say that it was used.
The whole insinuation is that I have been trying to get away with something. That is not correct. Nobody could have dealt with this more fairly than I have. I have gone as far as any Minister could possibly go by trying to get from the Opposition any form of words suitable to them that might produce the effect that everybody in the House knows needs to be produced. I promised Deputy Hughes that I would look into this particular clause to see if I could get a definition of "residence". Having got my legal experts in the Land Commission to look into the matter, they find they cannot give us any definition that might not militate against the whole purpose of the Bill and cause endless litigation. I think I have been quite fair to every Party in the House with regard to the matter.
Surely the Minister will appreciate that in this particular case proceedings will be based on a breach of a condition of residence continuously in the premises to the satisfaction of the Land Commission. Now, these proceedings are concluded ab initio by the production of the Land Commission certificate, which will be worded to the effect that the holder has failed to reside continuously in the premises to the satisfaction of the Land Commission. That is conclusive evidence of failure to observe the condition imposed upon the landholder. It is a farce to suggest that the landholder in that case has an appeal to the court. He is cut from the start. I admit that there are considerable legal difficulties in defining “residence” but the certificate should be prima facie, and not conclusive, evidence. The aggrieved person is not able to make his case. There may be instances in which men will have legitimate cases to make in court but, on production of this certificate, they will be bowled out. They cannot make their case. That is an injustice to them if they have a legitimate case to make.
I appreciate the difficulties of the Minister but I do not think that the proposal which has been made would lead to endless litigation, because the Land Commission would be able to show that their inspections disclosed that the person was not living in the house allotted to him. It would not take a great deal of time to determine whether that was or was not the case— particularly if the Land Commission could produce this certificate as prima facie evidence. I suggest that the Minister should yield to the House on this matter. Otherwise, he will be shutting the door to legal redress in particular cases. I agree, on the other hand, that it is impossible to get a satisfactory definition of “residence”.
I am grateful to the Deputy for saying that. The point is not that of the clause, which we discussed already, but the framing of a definition of "residence". I tried in every way to get a form of words which we could put into the clause.
Would the Minister mention some of the formulæ suggested? That would enable us to see where the difficulty lies.
The point is——
I know the point but I should like to know the definitions which were brought forward to meet the point and which proved unsuccessful.
I do not say that there were any definitions. The difficulty was that we could not find a definition. The meaning of the words "dwell", "live", "occupy" and "reside" has been argued in the courts time and again.
Some of them are fairly well defined.
Certain definitions of the words "residence" and "occupation" in relation to wills have been found by the courts to be faulty and useless, with the result that it has not been possible to implement the intentions of testators in some cases. The same difficulty has arisen in respect of the word "residence" in income-tax and divorce law. Deputy McGilligan and Deputy Coogan know that there is a difficulty in defining "residence" in such a way that it will be upheld in court. It has never been possible to define "residence" or "occupation" in a manner to satisfy the courts, despite the fact that common sense makes clear to everybody what "residence" is and makes clear the type of residence we require, so that this measure may be operated for the benefit of the country.
The necessity for discovering an acceptable legal definition of "residence" will never arise if the people who are fortunate enough to get land and houses from this or any other Government will go and live in the houses built for them by the State. I do not want endless litigation on a simple issue of this kind. I prefer to take the certificate of an honourable official of the Land Commission as to whether a person is, or is not, living on a holding awarded to him. I do not think that the issue deserves much further debate.
I understand that the Minister originally held himself out —I am speaking now without having been present at the time—as going to make an attempt to get a solution of the difficulties that attach to this word "residence" or "residing". The Minister now comes in and says that he has not been able to get that definition. We are on the Fourth Stage of the Bill. Would it not be possible to allow a delay to see if other people could get formulæ which would suit? That is the reason I asked the Minister what formulæ had been suggested and what deficiencies had been found in them. We could then see whether phrases used ordinarily in legislation have been tried and found wanting. The Minister has referred to difficulties arising from the word "residence"—I think the term is "ordinarily resident"—in connection with the income-tax law. There has not been very much difficulty in that connection. Some of the Acts produced by the Minister's Government have interpreted the phrase "ordinarily resident", notably, the Act dealing with nationality and citizenship. I do not see why phrases accepted by the draftsman in other pieces of legislation would not give the certainty sought here. If there is that difficulty, why not have a period of delay so that some other formula may be thought out?
I have no undue wish for rushed legislation. The Deputy was not in the House when this Bill was being discussed. When it was first discussed, I invited members of all Parties to come and confer with me with a view to seeing if we could find a solution of this matter. The only hope I could have had would arise from Deputy Costello's assistance but he suggested that it was not his business to give us a form of words. We did discuss the matter at great length and I could not accept the viewpoints put forward by the various members who attended the conference. We discussed every clause of this Bill at length. The issue which should be raised here is as to the definition of "residence" and not any other point. I cannot find any form of words which will give me a definition of "residence" which will be upheld in law.
Does the Minister say that no definition of "residence" has found legal application?
The interpretations of "residence" and "occupation" have been so varied that there is no certainty that acceptance of any of them would not leave an opening for endless litigation.
They have not been varied within the same Act. They have not been varied where the word occurs once or twice in the same Act. It may be that there were different interpretations of the words "continually resident" or "ordinarily resident".
What definition would the Deputy suggest of "continually resident" that would be upheld in a court of law?
The words have been used in various pieces of law which have been upheld by the courts.
A man may visit a house only once a week or a man may have half a dozen houses and yet be in residence in all of them.
That does not say that there is no phrase which cannot find legal application.
I have not got it.
The Minister was good enough to say that I was a sort of sole hope to produce a satisfactory definition of "residence". I think it is only right and fair that we should say that the Minister did on this occasion meet the various Parties with very great fairness with a desire to meet the various points of view put forward on this measure. We took up the attitude that we were in favour of the principle of the Bill but that there were certain pieces of machinery to give effect to the principle to which we objected. The Minister did meet us on one or two of these matters. He has made the certificate of the Land Commission prima facie evidence, not exclusive evidence, so that the person affected by the certificate has an opportunity of making his case in court.
I do not agree that it would pass the wit of the draftsman to find a phrase which would solve the Minister's difficulty here. At least he might try it. When I said that it was not my business to give him that phrase, I meant of course that I was not either a Parliamentary draftsman or a draftsman by profession, that I use my tongue rather than my pen in the profession. At the same time, I have occasionally used the pen rather effectively from the point of view of legal draftsmanship. I think that even on the spur of the moment I could give him some sort of definition that would meet the situation. I think the intention is to cover a person who gets a holding of land and uses it as his home or the place from which he works and operates the land. There has been a number of definitions of the word "residence" and "ordinary resident" but there has never been any difficulty in the courts in deciding on the facts as to whether a person is resident or ordinarily resident, within the meaning of that particular phrase, as used in a deed or will. I imagine that the Minister wants a phrase which will run something like this—"who resides permanently and continuously in the dwellinghouse and uses the dwellinghouse as his sole and exclusive means of residence". I make the Minister a present of that phrase. There would be no difficulty in the courts if the certificate of the Minister's Department is taken as prima facie evidence: the man can then make his case.
Deputy Davin amazed me by the benediction he gave to a certificate of this kind. He startled me and astonished me. Of course we have got use to happenings of this kind but this idea of making Departmental certificates methods of ousting people from making their case in courts, because somebody may be put to expense, is certainly new coming from the Labour Benches. We do think it a fundamental principle that a man should not be condemned without being heard and the place for him to be heard and make his case is in court. The suggestion we make is that the certificate of the Land Commission is prima facie evidence only and that there is a burden on the tenant of proving to the satisfaction of the court that the Land Commission is not right.
Deputy Davin rose.
Deputy Davin cannot speak twice. The House is not in Committee.
Apparently Deputy Costello is the only person who can speak twice.
I have not spoken twice.
Deputy Costello has not spoken twice. I am putting the question that the Bill be received for final consideration.
What about the suggested delay? The Minister apparently would accept an amendment defining this word, if he could get a proper definition. A suggestion has been made. Could it not be considered?
Deputy Costello has defined in fact what we in the Land Commission regard as residence for our purposes but Deputy Coogan, Deputy Costello and Deputy McGilligan all know how that question of residence may be treated in the law courts. The courts may not accept the definition that Deputy Costello proposed. Is it not true that a man may have half a dozen houses?
Not under that definition.
I wonder.
He has to use it as his sole and exclusive residence.
We will probably find that out after much costly law.
We will give you the Bill then.
I think you should give the Bill now. It is an effort to deal with a very limited evil and I think it is not unfair to ask that you should give it now.
That is the very reason for asking that the amendment be accepted, that it will apply to very few.
If this is what might be called general legislation, the general application of the land code, it might be regarded as drastic. It would not be really justifiable at all, if this evil did not exist. It is an evil which must be cured and we have no other means of curing it. I think it very unreasonable to ask us to hold up the Bill further.
I am putting the question.
I assumed that we were getting a certain amount of consideration for the suggested amendment.
Would the Minister not postpone the Report Stage so that the matter might get further consideration?
Question put and agreed to.
Question proposed: "That the Bill do now pass."
Now, Sir, I shall have an opportunity of replying to Deputy Costello.
That is hardly the appropriate way to start a speech on the Fifth Stage.
I am not proposing to criticise your ruling, but it is quite evident to anybody who has been listening that other Deputies have had the privilege of speaking more than once.
That is not so. Deputy McGilligan got up to ask a question, and it was received as such. The question was long and involved, but it was only a question.
I am sorry you say that, Sir.
I studied this Bill very carefully and I read the speeches on the measure to which I had not the privilege of listening, including the speech made by the Minister. I studied particularly the provision in the section which has just been the subject of discussion and I can tell Deputy Costello or anybody else that I was not sent into this House to defend the small number of citizens who are put in the privileged position of getting houses and holdings at the expense of the State and who, after having been so fortunate as to get them, refuse to go to live in them. Unfortunately, a very small number of such cases arise in my own constituency but if one citizen or two or three citizens were fortunate enough to get these houses and holdings and did not go to live in them for reasons best known to themselves, for reasons I could not understand, I say it is the duty of the Minister representing the taxpayers who paid for the building of these houses to see that somebody else occupies these houses and works the land to the advantage of the community. I am making no apology to anybody for refusing to defend the limited number of people who get these holdings and the land attached to them and refuse to occupy them.
May I reply to Deputy Davin as he has replied to me? He has made a speech which is utterly irrelevant and pointless, from the point of view of his alleged reply to me. The Deputy, apparently, has not at all appreciated the matters which were in discussion between the Minister and us-including members of his own Party—because we made it perfectly clear that we were in favour of what the Minister wanted to achieve.
It is very late the Deputy is saying that.
The Deputy must not have been present at any stage. What I wanted the Deputy to explain, as a matter of principle, is why he wants to oust even that particularly favoured individual who got a house and a holding from his right to go to court and make his case? The Deputy carefully avoided saying a single word about that. I do not want to make a speech on the Fifth Reading of the Bill. I merely want to reiterate what has been said and to state again that we do appreciate the attitude of the Minister, while regretting that he could not see his way to accept our suggestions. It is due to him to say that he made an effort to understand our point of view.
The reason is that I do not believe in endless, costly and unnecessary legislation.
This legislation would not be endless, costly or unnecessary, from the point of view of keeping a man's right to go to court as a matter of principle.
Question put and agreed to.