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.