Rent Restrictions (Amendment) Bill, 1954—Second Stage.

I move that the Bill be now read a Second Time.

The purpose of this Bill is, firstly, to cure retrospectively a defect in the Rent Restrictions Act, 1946, that was brought to light by the quashing in the High Court of two provisional orders under Part III of the Act fixing the lawful rent of certain premises, and, secondly, to secure, so far as possible, that the interests of the particular persons on whose application the defective provisional orders in question were made, and any others who may find themselves in the same boat by the time that this Bill is enacted, are not allowed to suffer by reason of the defect I speak of, so that what everyone knows to have been the intention of the Legislature shall not be frustrated to the detriment of the interests of the tenants of small premises.

As the House is aware, the purpose of Part III of the Act of 1946 was to enable a justice to deal privately, and without the necessity for a hearing in court, with applications for provisional orders from the tenants of small premises and until the procedure was challenged a few months ago, it was assumed by all concerned that a justice was authorised and empowered to deal with all such cases in this way. The High Court has now decided that where it is necessary to make an apportionment of the rent in respect of partly furnished or partly serviced premises, it is the court alone that is competent to make the apportionment. The consequence is that applications from the tenants of small premises which are partly furnished or partly serviced cannot be dealt with by a justice sitting in private until the rent has been apportioned by the court. Needless to say, this was never intended and the purpose of Section 2 of the Bill is to cure this defect and to cure it retrospectively but not so as to validate a provisional order which has been quashed before this Bill is enacted.

But although it is not proposed to validate a provisional order which has already been quashed, neither is it proposed to leave the small tenants on whose application the quashed provisional orders were made in a position where, through a defect in the law frustrating the intention of the Legislature and through no fault of their own, they may have to pay a rent that is grossly in excess of the lawful rent in respect of a period extending over 14 months after the time they had sought to have the matter put right. Consequently, we are providing against this possibility by the provisions of Section 3. The effect of the section is that the district justice is required to make a fresh provisional order which will be effective as from the date upon which the tenant ought originally to have been able to have his rent fixed, while safeguarding the landlord's right of appeal.

It is the recent decision of the High Court referred to by the Minister which has necessitated the bringing in of this amending Bill. We are in complete agreement with the proposals in Section 2 and in complete agreement with the reinstating of the practice which, before the recent decision of the High Court, for many years, since the passing of the Act of 1946, had been followed in the courts. It would be a great hardship on many tenants who have had provisional orders made if this Bill were not passed, because, as a result of the decision of the President of the High Court, many provisional orders which had not been appealed against by the landlord could now be quashed bycertiorari in the High Court, and I thoroughly agree that it would be wrong for the Legislature to allow such a state of circumstances without interfering in the way suggested by Section 2. In the special circumstances of this case, I am in complete agreement with legislating retrospectively to the extent that any provisional orders which have been made in the past and in the body of which it appears that an apportionment has been made by the District Court, in the special circumstances of Section 28 of the 1946 Act, should be deemed good retrospectively as is proposed by this Bill.

There is, however, one very important matter of principle involved in Section 3 and I think the Dáil should carefully consider, before Section 3 is passed, whether it is prepared to legislate retrospectively in the manner proposed by Section 3. The position, as I understand it, is that, as a result of the decision of the President of the High Court, the contract rent which was entered into between the landlord and the tenant in the case which was the subject of the proceedings in the High Court is good and the tenant is liable to pay his contract rent as a result of that decision. The landlord has many remedies open to him if the tenant does not pay his contractual rent and we are now proposing to take away legal rights from the landlord in this case, rights which he has as a result of that High Court decision. I presume that there are many weeks' arrears of rent due to him as a result of it which he is anxious to obtain.

I do not want to be misinterpreted in any way in what I am saying in this regard. I spend a lot of my time appearing for tenants and I have the utmost sympathy with tenants and with the tenant in this particular case, although I should say that I do not know his name or the name of the landlord but we should appreciate what it is proposed to do by this Section 3. We are proposing retrospectively to take away a right from an individual and our judgment in meeting this question of principle should not be altered in any way by dwelling too much on the fact that the individual in question is a landlord. We must face the principle that in this case, as a result of that decision of the High Court, an individual has got a legal right which we are proposing to take away from him.

It is a very important matter of principle and I think we should not be legislating retrospectively in the way proposed by the section to take away from any person a legal right no matter what the legal right may be. There may be very many cases in which the High Court or Supreme Court decision could be invalidated and doing great injustice to the parties concerned merely by bringing in a measure such as this to do away with a right which the High Court or the Supreme Court has declared that person to have.

As I say, I have the utmost sympathy with the tenant in this particular case. I have the utmost sympathy with somebody who believed he had a legal right, and it transpires when this particular point is brought for the first time to the notice of the High Court he has not got the right. But, as I say, it is a question to a very great extent of principle, not an academic one but a very important one, and I think Section 3 as it stands should not be passed into law for the reason that we are taking away rights from an individual. I would suggest, perhaps, that the tenant in this particular case should be entitled to go back to the District Court and have a provisional order made and that the rent to be paid by him would be the rent determined by the provisional order, or, if there is an appeal from it under Section 31, by the District Court, or, if there is an appeal from that, by the Supreme Court. I think that the rent to be paid by the tenant in this particular case should be the contract rent until it is varied by an order of the District Court. I feel that the sympathy which we all must have with the particular individual concerned in this case should not blind us to the fact that we are deliberately taking away a legal contractual right from an individual. The Dáil, I think, should not pass an Act doing that merely because the person who has the contractual right is a landlord and may use it against the tenant with whom we all have sympathy.

Major de Valera

Could Deputy Costello oblige us by telling us precisely the legal content of the decision in question? What was the point at issue, and what was the decision in the High Court?

Unfortunately, I have not seen the decision other than the report in the papers but, as I think the Minister pointed out in his opening speech, up to now District Courts have been apportioning the rent of small premises when tenants of small premises have come in to have their basic rent fixed by the District Court. When it appears, under Section 3, that certain payments are made by the tenant, not only in respect of rent but also in respect of light or heat or the use of furniture, then it has been the practice of the District Court when making the provisional order to apportion the rent—portion of it in respect of light, portion in respect of heat, portion in respect of the use of furniture—and thereby to discover whether the case is a case to which the Act refers or not. When that apportionment is made it then goes on to fix what, in its opinion, should be the basic rent. It has now been decided by the High Court that the right of the district justice sitting in private to apportion the rent in that manner is not given by the Act, and all those provisional orders, many hundreds of which, I am sure, have never been appealed against, are now bad orders because district justices have been making this apportionment under Section 3 wrongly. As I say, I am quite in agreement with giving them power which, as the Minister said, was intended by the Act of 1946—giving them power to apportion the rent, and the application is made under Section 28 in the manner in which they have been doing it up to now. The effect of the judgment was that the order made in this particular case by the district justice was a bad order and consequently the contractual rent stood, and as a result of that quashing of that provisional order this unfortunate tenant owes, I am sure, many pounds of arrears of rent to his landlord.

What we are proposing to do by Section 3 now is to allow the tenant to go back to the district justice and have his basic rent fixed by a provisional order. I should say that I am not against the principle of allowing the tenant to go back because in effect what we are doing by this Act is to allow all tenants who have got provisional orders which have not been appealed against to get their provisional orders without fear of their being set aside on application by the landlord. Therefore, I am of opinion that the tenant in this particular case should be allowed to go back and get his basic rent fixed, but the position at the moment is that he owes some money to the landlord which the landlord is entitled to under the law at the moment. The law as it stands is that the landlord is entitled to certain money for his rent. What is proposed by Section 3 is to allow the tenant to return to the District Court and get his provisional order. If not varied subsequently by the District Court or the Circuit Court the rent he has to pay is the rent fixed by the provisional order as from the first gale day after the order ofcertiorari was made. As I have said the effect will be in this particular case that the tenant is going to go back and get his provisional order made and the landlord will not be entitled to his contractual rent and to the legal right which he has at the moment as a result of the High Court decision. I think we should be very chary indeed about taking away rights from people. We should not be prejudiced by the fact that in this case this man might be taking a rent which might be high and exorbitant, for all I know, from the tenant. I think a principle is involved in it and we should not waive it.

Major de Valera

I am somewhat at a disadvantage in intervening, as I must confess I am not completely clear on the ground of the High Court decision, but perhaps Deputies who are in contact with the courts will correct me if I am wrong in the impression I have got. It appears to me that the decision hinges on the interpretation to some extent of the word "court". Is that correct?

Major de Valera

And that a distinction is drawn between the words in the section which was initially in question—I think it is Section 29 or Section 28—relating to "district justice" in contradistinction to "court." Am I right in that?

More or less, I think.

Major de Valera

It rather conditions my argument; that is why I asked the question. Here we have a case where apparently for what I might call a technical reason the High Court has intervened to quash orders already made, and Deputy Costello has raised the point of retrospective legislation. I think that most of us who have had any experience in these matters as worked out in practice in the courts and elsewhere are very reluctant to concede in any case where it can be avoided retrospective enactment, particularly where there is any question of taking away existing rights; and to that extent I should be inclined, if that were merely all that was involved in this, to support the sentiments expressed by Deputy Costello. Perhaps it would be as well to safeguard myself by saying that I think the principle in general which he has stated is sound.

But here we have something different. It is true that technically, on a strict technical construction of the law, that will be the effect of Section 3; but we in this House have to look further than the mere technical construction of enactments. That is what is peculiarly our function—to define and give effect to intention. That particular function which we have may be contrasted with the function the courts have. In the case of the courts they are constrained by the terms of an enactment in construction. No court under our system may look to parliamentary debates, or to any other extraneous sources, for evidence of intention. That is why many of us frequently point out that a ministerial assurance here carries no weight whatsoever when it comes to giving effect to the enactments of this House in a court of law. That is the position in which the court finds itself.

Now we are in an entirely different position. It is our prerogative to provide for the reality. It is our prerogative to deal with the specific problems that arise on the base of justice in its real sense as against—shall I say?— an unswerving adherence to precedent. Many of the principles that rule the courts should also rule us here as principles of experience, but I do not think we should be bound to the same extent; we should be cautious; we should be alive to all the problems, but I do not think we should ever accept that we are bound, in the same way as a court of law is bound, by precedent or by the rules which bind a court in regard to interpretation even where retrospective legislation is concerned. It is a very good thing that the courts lean to interpretation in that way because it is a safeguard for us as well as for them. Nevertheless, our case is somewhat different, and I make these remarks because I feel that principle should not be lost sight of by us, while still preserving our freedom to legislate.

What are the actual facts as distinct from the law in this particular case? What is the reality as distinct from the law? I, like Deputy Costello, have no personal knowledge of the case at all, but the facts appear to be that in 1946 an Act was passed by this Legislature the provisions of which intended, and were heretofore operated to mean, that in the case of certain dwellings, the subject-matter of Part III of the Act of 1946, a certain cheap procedure would apply whereby a tenant could make application to a district justice. It was, and is, clearly the intention of this Act that the district justice would exercise the powers of the court and that he would make an order. Section 30 provided for the safeguarding of the landlord's position. Now, that was the clear intention of the Act. That was to be the law and any time after the passing of the Act the tenant was to have the benefit of its provisions. Likewise, the landlord was to have the benefit of its provisions in relation to him and both the landlord and the tenant were mutually to have the protection of the Act as enacted by this Legislature.

That being so, a situation has now arisen whereunder an order has been quashed. The reason why I was anxious to know the grounds was because if the order had been quashed on some substantial ground which deprived his landlord of the right to enforce his rights at the time the order was made I would perhaps take a different view. For instance, if the application was made privately, if the provision that a copy be served on the landlord had not been complied with, and if the grounds of the decision had been such as would deprive the landlord of a real right, then I think I would be arguing in the same sense as Deputy Costello.

In the net, the grounds of the decision are simple. The procedure was complied with. The landlord had full knowledge and he had the right to come back and assert his side. All that was wrong was a technical construction of terms, but no substantial injustice was done and for that reason I think it is legitimate for us to face the situation. No substantial damage has been done to either party by the original order. That view is tantamount to saying that a substantial case made by the appellant, or the person who applied for the order ofcertiorari in this case was established as against a purely technical one. If that technical point were not there, the decision would have been on the merits. I grant you that is an assumption on my part and I am, therefore, open to correction; but, if that is the case, then this is a situation wherein retrospective legislation is justifiable.

I appreciate that I am building on the premises of a technicality but, presuming that to be the case, it seems to me the tenant applied in the way intended under the Act, and in conformity with the provisions of the Act, to a district justice privately under the enabling section of Part III. The district justice consequentially made an order, provisional in its nature. In so doing, he exceeded his jurisdiction technically in making certain apportionments but he otherwise acted in accordance with the spirit and letter of the Act and in accordance with the intention of this Legislature when the Act was originally passed here in 1946 and universally applied since in every case. All the subsequent provisions in relation to safeguarding the landlord's rights were likewise complied with and the landlord had the opportunity at all times of moving within the same machinery to assert his claims. Presumably he did so. The machinery operated in reality in compliance with the intention of the Act until the situation was upset on a matter of construction.

I ask Deputies which would be the greater injustice: to amend a technicallyab initio and leave the parties in the position in which it was intended they should be left, a position of equality vis-à-vis all the other applications made in court which do not come under this section but are nevertheless ruled by the same principle, or nullify the tenant's rights? Remember, we are in a cleft stick. Deputy Costello has pointed out that there is an element of retrospective legislation here which operates against the landlord. I can equally well point out that if certain other steps are taken the Bill will equally have the effect of retrospective legislation against the tenant because the tenant is in the position that he had rights accruing to him under this Act at the time he made his application. Had there been no technical hitch he would as from the time he got his order be in a position to obtain his rights and have the benefit thereof. To legislate for the landlord would deprive the tenant of certain rights. We cannot escape the dilemma that in effect we are legislating retrospectively against someone. We will hit either the tenant or the landlord.

Having regard to all the circumstances, I think the solution offered by the Bill is probably the best one, again being very careful to agree with the principles and sentiments expressed by Deputy Costello in relation to retrospective legislation. If we adjust the position in the way it is proposed to adjust it, we will do no more than provide for the implementation of the Act as it was originally intended it should be implemented. The expression is very very clear from a common-sense point of view. It is, if you like, thestatus quo, but the intention of the Act is very very clear; all you are doing is to regularise something which happened which was in no way in reality at variance with the intention of the Act. That is all that is being done in this case.

There is another slight point about it. Again, I am at some disadvantage, not being in immediate contact and not having the report. As I understand it, the effect of the High Court order is to quash the existing order. It does not do anything more than that, but it does raise a number of questions. It raises the possibility presumably of the landlord suing for arrears on the basis of the contract, the contract rent always ruling, as Deputy Costello pointed out. It does not debar the tenant from making an application now. We must always presume that the decision of the district justice was right in substance because every lawyer knows that if there is an appeal you rely on a technicality in the last resort. Perhaps that is rather a sweeping way of putting it, but the court rather leans to the reality than the technicality if at all possible. So, presumably, the court order was a just one and the tenant will be able to apply now, but he will be open to an action for arrears if he does not pay or compulsion through the threat of an action to pay the arrears.

Then we are back to the question of depriving the landlord of rights which he has under the Act, whether we agree with it or not. I do not want to go into that issue, but I do think that the landlord's rights are something which ought to be preserved and looked at. They are things by no means to be overlooked because they have already been severely limited.

Including slum landlords.

Major de Valera

I think the landlord's rights have been so severely restricted that in the case of further restriction they are entitled to very careful examination. Nevertheless, taking that view of the case, of the two evils, if you like to look at it from the point of view of retrospective legislation, of choosing whether you are going to legislate against the tenant or the landlord, I think the course taken in this Bill is the preferable one of the two, and to that extent I would disagree with Deputy Costello, while admitting fully the force of the principle upon which he based his argument.

I should like to say that I share the view expressed in regard to retrospective legislation, but at the same time I do not think it can be condemned entirely. It has been admitted by Deputy Costello that the intention of the 1946 Act was to act fairly as between landlord and tenant and to have equitable rents fixed. If that were the intention of the House, and I think it is not denied that it was the intention, and it is now found that the courts are not interpreting the legislation in that manner, we have no option but to enact the legislation which is suggested here. I think Deputy de Valera struck the nail on the head when he said somebody will be victimised, either the landlord or the tenant.

I think the issue is quite clear. If it were the intention of the House in 1946 to protect the tenant's rights it is now up to this House to ensure that the tenant's rights will be protected. It cannot be forgotten that if the landlord was fortunate enough to get away with an exorbitant rent from the period the tenant went into possession until the application was made he has not much of a grievance, because I think it is obvious that exorbitant rents were being charged in this case. I am not concerned with technicalities at all. I am concerned with morality, and morally, to my mind, the tenant is entitled to the legislation which was intended and no mere technical juggle by any court should be allowed to operate which will militate against the tenant and deprive him of the rights which this House intended to give him. I may say, in conclusion, that I have not the slightest qualm of conscience in giving my support to legislation of that kind.

The only point I wish to make is one which has already been made. I do not think anyone will quarrel with the intention behind the section of the 1946 Act and, undoubtedly, Deputies on all sides are anxious to see that the intention is implemented. Whenever Acts are passed here they are intended to express the intention of the Legislature. If subsequent defects are found in the legislation then they may operate either to confer a right on an individual or individuals or may impose some liability on somebody else. But what we regard as a matter of principle is that in this case—and I do not think we should allow our minds to be coloured entirely by the fact that in this particular case it is the landlord, because we are all in favour of the provisions of Part III of the 1946 Act—because of a technical defect in the Act which was discovered by the landlord or, more likely, by the landlord's legal adviser, we now by legislation propose to take away from that individual a right which he or she, as the case may be, secured as a result of an application to the courts. While we are not bound in any way by precedents —in many cases, we do not follow precedents—I think there is a question of principle involved. In this case, there was a defect in the Act which may be described as a technical defect. Nevertheless, this probably means to the person concerned something of value which we here seek by legislation to take away from an individual who has established his or her right. That does not in any way interfere with the decision which the House will undoubtedly take to make clear that other decisions, where a district justice made a provisional order, should not be invalidated merely by reason of a technical defect in it.

I think we are all quite satisfied that no other cases which have been decided by means of provisional orders and which have not been appealed and have since become so far as the persons involved are concerned, legally binding on them should be affected, but I think there is a question of principle involved that this House should not, except for very exceptional reasons, either where the public good or the well-being of a certain number of persons is concerned, by retrospective legislation interfere with a right which a person has established. That is a question of principle. In this case, I do not know, but I understand that the amount of money involved may not be a big sum to either party, but it could probably be a considerable sum to any tenant. I think we should not by retrospective legislation take away a right which a person has established. The principle is sound. We all have sympathy with the individuals affected and indeed it is easy to allow our views to be coloured probably by the fact that in this case it was the landlord who secured this right. Nevertheless because we are prepared to see that the intention is carried out we are certainly going to make effective the intention of the Legislature as expressed in the 1946 Act, but I still think there is a question of principle, and I would be glad if the Minister would consider a suitable amendment.

Major de Valera

Would the Deputy concede my distinction about substantial damage? I would be all with the Deputy if there was substantial damage to the landlords.

It can always be argued that because a person has secured some benefit through legislation being interpreted in a particular way it gives him a technical right. I agree in this case the intention of the Legislature has not been clearly expressed or implemented, but I still think we should not take away a right that a person has secured.

I will be very brief on this. The amount of money involved has no bearing whatsoever on our attitude or the attitude of this group to a measure of this kind. We have over a long period of years and on every matter opposed the introduction and passage of retrospective legislation, if I might put it that way. The surrounding circumstances that concern the necessity for the introduction of this measure have been fairly, fully and satisfactorily explained to the members of this group and the introduction and passage of this amending measure is going to help to give effect to the original intention. It is for that reason, and that reason only, and not for the purpose of creating a new precedent that I will, with these few words, allow this measure to go through without opposition.

Mr. Boland

I can assure the House that the Government did not light heartedly bring in this measure. They foresaw that people were going to raise the points raised by Deputies Costello and Cosgrave, but they had to take into consideration the equities as well as the actual letter of the law. As Major de Valera says, the dilemma was that they were going to hurt somebody, either the landlord or the tenant, and they had to consider the equities of the case. In all the circumstances we were satisfied that it would be a far greater hardship on the tenant, because it was clear that every Deputy who has spoken and everybody who recollects the passage of the 1946 Act through the House is satisfied that was definitely the intention of the Legislature. By a mere technicality, it has been held that in apportioning the rent between the amenities of furniture and light, or something of that kind, the wrong procedure was adopted. While, so far as we ever knew, we had made it the same both for an empty room and a room with a certain amount of furniture, apparently the court held that we did not do that effectively. What we are doing now is putting the tenant back in the position he was in when the application was first made. On the whole, I think we are justified in doing that.

I do not think there is very much more I can say about it. Since the Act was passed everybody else who proceeded under this Act had got the benefit of it and these people in this particular case did not. We have decided that the equities are on the side of the tenant and therefore we put Section 3 into the Bill. I think in all the circumstances the House would be wise to accept it.

Will the Minister give us his own assurance that he at least while in office will not use this as a precedent?

Mr. Boland

No. But we have to deal with things as they arise. There was at least one measure in which a statutory right was taken away from people by retrospective legislation. There was objection to that, of course, but this could not be a precedent. If the equities were not as they are I would not have brought this in but I think everybody will say if the rent is reduced from say 40/- to 9/7 the tenant has no possibility of accumulating that amount of money. How are they possibly going to pay it? The amount of money has certainly something to do with it. A person earning a week's wages would find it practically impossible to pay such an amount because we all know these people want the money for the necessities of life, and if the rent is allowed to accumulate that way they are simply put in a position in which they would never have been if they had not thought that they had full rights under the Act. That is the consideration that induced the Government to approve bringing that in in that form.

The Minister would agree that this could be considered a precedent for using the Oireachtas as a court of appeal which would be highly undesirable?

Mr. Boland

I can assure the Deputy and everybody else that unless there is something like this I would not be a party to depriving anybody of their rights but when you are faced with alternatives you naturally try to do the better thing.

We agree with that.

Would the Minister say, while on the subject, what is the position about the rent tribunal that reported over a year ago?

Mr. Boland

We are examining the whole thing.

You are not waiting for it to be printed?

Will the Minister say if he is going to bring in a Bill this year?

Mr. Boland

I hope so, before the end of the year.

Question put and agreed to.

Mr. Boland

I would like all stages now if possible.

Does the Minister say there would be serious damage done by leaving it until next Tuesday, and we will give him all stages on Tuesday?

Committee Stage fixed for Tuesday, 16th February, 1954.