Skip to main content
Normal View

Dáil Éireann debate -
Thursday, 12 Nov 1964

Vol. 212 No. 6

Committee on Finance. - Land Bill, 1963—Committee Stage (Resumed).

Debate resumed on the following amendment:
In page 14, line 54, to delete "same locality" and to substitute "immediate neighbourhood"—(Minister for Lands).

We were dealing with amendment No. 39a and I should like to draw attention to the relationship between sections 34 and 41 of this Bill, in case any Deputy should be puzzled by their being bracketed together. We are seeking to amend two important sections in previous Acts dealing with the acquisition and resumption of land. Section 32 of the Land Act, 1933, dealt with the acquisition of untenanted land and section 39 of the Land Act 1939, dealt with the resumption of a tenanted holding. Section 34 of the Bill introduces major changes in the first of these sections and section 41 introduces precisely parallel or cognate changes in the other. It will be clear to Deputies that when we suggest an amendment in one, we must logically have a corresponding amendment in the other.

In all, we have 15 amendments to the two sections but many of them are simply duplicates of one another for the reasons I have given and the whole 15 may be gathered into four distinct groups of closely related items. I suggest therefore, with the permission of the Chair, the discussion on these amendments can be carried on in four parts: group (1), which comprises amendments Nos. 39a, 40b, 40c, 42, 42b, 42c, 43a and 43c, dealing with "immediate neighbourhood" and distance limits; group (2) which I would ask the House to consider when we come to them, consists of amendments Nos. 40 and 43, dealing with persons boating or fishing on lakes or rivers or on the sea; group (3), which I suggest can be taken, are Nos. 40a and 42a which deal with residence clauses; and group (4) consists of amendments Nos. 40d, 41 and 43b which all deal with reasonable absences from home.

Coming to the first group I have mentioned, that is, amendments Nos. 39a, 40b, 40c, 42, 42b, 42c, 43a, and 43c, these cover the immediate neighbourhood and distance limits. Deputy Ryan's amendment suggests five miles. I have already said that in the existing Acts and in the Bill there are various uses of the phrases "same locality", "in the district" and "immediate neighbourhood" and that these should be rationalised. "Congestion", "unemployment" and "residence" should all be judged in the same way. This may seem oversimple but we think it is the best way, and in amendment 40c, we have the definition of "immediate neighbourhood" as within a distance of three miles. That is the difference between the amendment I have tabled and that tabled by Deputy Ryan which sets out five miles, but which as drafted, I suggested on the last debate, could mean that a man having a living in Ireland within five miles of a farm belonging to a brother in America could escape.

On the question of distance, I know that it can be said that a well-equipped farmer could work a farm quite well from a distance of four or five miles but this is a matter for the Lay Commissioners to make reasonable exceptions and not victimise a working farmer. I think I am meeting the reasonable arguments that have been made by providing a residence distance of three miles, and I ask Deputies to remember that, in the main, the section, when we come to it, is intended to deal not with the ordinary working farmer but with absentee owners, people who have acquired lands, some of them non-nationals, and who are living abroad. It is to deal with these people, this class of person, that in the main these amendments are devised.

I should like to ask two questions on this. It is rather difficult to differentiate different amendments from the general scheme. In relation to residence, it seems to me to differ unnecessarily in one aspect of the definition in the Bill and the definition that would exist normally in the case of the Revenue Commissioners. Surely we should accept that if a person is deemed to be permanently resident here by the Revenue Commissioners, and in consequence pays Irish tax, such deeming of residence by the Revenue Commissioners should also be a deeming of residence for the purpose of the Land Bill. The two things are the same and it provides a readymade assessment of the position. A person does not allow himself lightly to be classified a permanent resident here for revenue purposes because by so doing, he is accepting very heavy taxation implications. It seems to me, therefore, that here we have got that readymade definition already for the particular case of residence and everybody is covered one way or another who has any land. It seems to me you have got something that is satisfactory and has the benefit of an element of certainty and could therefore be taken into account in this Bill.

Secondly, in relation to the question of residence and what I might call the family company, I do not understand how it is going to work because the Minister is providing that every single shareholder must be resident. In the normal course, the person who is the tenant for life had some shares and the person who is the remainder man had some other shares.

It seems to me that the appropriate method of dealing with that is to provide that, so long as the person who is the tenant for life is resident there, that fulfils the residence qualification required by the Land Acts. Otherwise, I cannot see how you can manage to deal with the case of a man who is genuinely living here but who many years ago, for a variety of reasons, put his affairs into a family company.

I know one case where a very large sum is paid out in wages in excess of the profits of the land. That estate is kept alive by substantial other moneys. There is a substantial amount of employment generated in the neighbourhood and paid for in the neighbourhood. The trustees are the shareholders. The tenant for life lives there and is deemed to be permanently resident for income tax purposes. However, her daughter is married away. Naturally, I presume she will not come back until the father and mother have gone to their reward, because there is not room for her to live in with the in-laws. Yet, as I understand the group of amendments the Minister has put forward, that particular case is going to be hit. It does not seem to be reasonable.

I think the Minister will agree with me when I say it is wrong to provide that residence for the Land Acts will mean one thing and residence for tax purposes another thing. If you have the two together it is much better. You have the definition already and it will be decided in every case, either by assessment or on appeal. Why can they not be taken as ready-made definitions also for the purposes of the Land Acts?

This matter has given me some difficulty. There are so many ways, when one gets down to company laws, of cloaking the real beneficial ownership by company devices that, unless one provides in this way to deal with companies as a whole, the door is wide open. There are company devices—I shall be dealing with them in a later section—where perhaps a herd could be made the majority shareholder in a company. He would be resident there. Let me emphasise that the Lay Commissioners and the Land Commission for their purposes would not in the ordinary course of events be interested in the type of case Deputy Sweetman has referred to, where you have a genuine family company fully working the farm or estate. But there are, I am advised, a number of these estates that are held under companies supposed to be Irish companies with their owners resident abroad and with other people running them. Where such lands are wanted for the relief of congestion—we must have an order of priority in this—I feel this residence qualification, as defined, is the method whereby we can get at these people. There is a large number of acres of land let by absentee owners. A big part of the purpose of this Bill is to get after that land for the land pool. The purpose of these amendments and of this section is to give the Land Commission the necessary legal teeth in suitable cases to get after these people. Some of these companies, bogus or otherwise, have certainly been used by aliens for the acquisition of Irish land——

Hear, hear.

——aliens not resident in this country. This is the best method we can devise of getting after those people. I can assure Deputy Sweetman and the House there is no intention on the part of the Land Commission of getting after the ordinary family farm worked through a private limited company, where everybody knows such is the case. There is no intention of using these powers against such a company. But in order to enable the Land Commission to deal with the type of case I have posed, it is necessary to spread the legal net as wide as possible.

Why can you not exclude cases where the shareholders are entirely Irish nationals? I am at one with the Minister on the case of the foreigners.

There is another device to deal with that one.

I agree with the Minister entirely in spreading his net wide to bring under control companies operated for the benefit of non-nationals who hold land under the cloak of a variety of company law devices which, in fact, are operated to frustrate the functioning of the land code. I think the Minister has received a considerable number of warnings from this side of the House that a situation was developing here that required control. We are glad to see that the Minister has come to realise that an undue acreage of Irish land is passing into the hands of aliens, either by direct purchase or by a series of company law devices which are merely a thin disguise for the alienation of Irish agricultural land to foreigners.

However, in dealing with that situation we should not spread our net so wide as to make no distinction between Irish nationals — people born and reared in this country — and people who have come from the ends of the earth to buy land in Ireland. We want legislation which will bring under the closest possible attention of the Irish Land Commission any acquisition of Irish agricultural land by aliens, no matter what device is operated to achieve that end. We welcome this awakening by the present Minister for Lands to the gravity of the situation, which can only be brought under control by a comprehensive power which gives the Minister the right and imposes on the Land Commission the duty to take note of the acquisition of Irish agricultural land by aliens by any device, so that appropriate steps may be taken to put the matter right.

As the Minister says, we may look at this again in connection with another group of amendments. He has asked us to study the amendments in certain groups. That is acceptable to us. We are glad to convenience the Minister by undertaking to do that. He has asked us to look at this section and these amendments together with section 41— one in the light of the other. Now, in the first group of amendments which the Minister would like us to discuss together occurs amendment No. 43c. That amendment reads:

In page 18, after line 35, to insert the following:

"immediate neighbourhood" includes any place which the Lay Commissioners are satisfied is not more than three miles from the nearest point of the relevant holding.

I had occasion to raise this question of the Lay Commissioners before in connection with section 27, and I explained the vicious and detestable character of the proposal that the executive head of the Department of Lands should also be a Lay Commissioner. This problem recurs here again because he exercises a quasi-judicial function in determining whether lands are in the "immediate neighbourhood" for the purposes of the Act. The Minister intervened very impressively on a previous occasion and quoted from a memorandum prepared for the then Minister for Lands by the late Commissioner Deegan. No doubt it impressed the House that the Minister was in a position to say that Commissioner Deegan—a most distinguished public servant whom all sides of the House are prepared to acknowledge as having given great public service to the country—had expressed his opinion very categorically and very clearly that not only was it permissible but eminently desirable that the Secretary of the Department of Lands should himself be a Lay Commissioner.

It was disingenuous of the Minister, to say the least of it, to make that communication in so formal a way to the House without adding that every single other Lay Commissioner appointed since 1923 down to today wished to be emphatically dissociated from Commissioner Deegan's opinion. Commissioner Deegan was the only person holding that post in Ireland since 1881 to hold that view. It so happens that other men like Mr. Waddell, Mr. Herlihy and Mr. Browne —men I remember with admiration and, indeed, affection—were Lay Commissioners and were also officials of the Department of Lands. It was Mr. Waddell, I think, who most strenuously objected to having thrust upon him the dual duties of chief inspector and Lay Commissioner. I think it was Mr. Nally —another distinguished public servant —who succeeded in prevailing upon Deputy Blowick, then Minister, to relieve him of the post as Secretary of the Department because he said his experience of functioning as Secretary of the Department, and as a Lay Commissioner, which had been thrust upon him, had convinced him of the deplorable character of such a dual relation.

I want to emphasise that every single Land Commissioner who has functioned since the Land Commission was first instituted in Ireland has taken a view diametrically opposed to that of Commissioner Deegan. I want to warn the House that the very best information in the Land Commission is that if anyone challenges in the High Court a decision taken by the Land Commission when the Commission sits with the Secretary of the Department as one of its members, it will be upset as being contrary to the Constitution. Remember the consequences of that. If anyone goes to the High Court or the Supreme Court and succeeds in upsetting one decision of the Land Commission, which comprised as one of its members at a court of the Lay Commissioners the Secretary of the Department of Lands, every decision of the Commissioners in which the Secretary of the Department participated will thereupon become null and void and every individual affected by the decision will have a right of action for damages against the Land Commission. That will be the law. That will be the finding in law, and it will not be open to Oireachtas Éireann to introduce retrospective legislation depriving people of rights which the Supreme Court had declared to be theirs under the law. It is not constitutionally possible for the Oireachtas to legislate and say—once a person has been determined by the High Court to be entitled to compensation from the Government—"You will not get the compensation".

We will put down an amendment on Report Stage which will declare once and for all that executive officers of the Department of Lands must not be members of the Land Commission, and that the quasi-judicial state of the Land Commission must be restored. I most earnestly ask the Minister between now and Report Stage to examine, if he has not already had put before him, the opinion of every Lay Commissioner who ever functioned in this country under a British or an Irish Government, against the opinion which he has tendered to the House as the judgement of Commissioner Deegan.

I put it to the Minister that here is a change which he says is designed to achieve nothing but expedition in the discharge of Land Commission business. Against that, we on this side of the House consider this goes to the root and foundation not only of fixity of tenure but of the judicial functioning of the Land Commission.

I do not want to interrupt the Deputy, but is he speaking of the amendments——

I am speaking of the function of the Lay Commissioners to determine what is the "immediate neighbourhood".

I do not want in any way to cut the Deputy short but the amendment is, in fact, defining the region.

In this context it is not as grave a matter as in the context of section 27. I cannot but bring to the Minister's attention facts which I can only assume he does not know or he would have told us about them when quoting Commissioner Deegan's memorandum here in Dáil Eireann. Looking forward to the amendment which we shall certainly submit to the House on Report Stage, I am asking the Minister to reconsider this whole question in the light of the situation.

I want to say also that in the considered judgement of some of the most experienced ex-Land Commissioners, they are prepared to say that there has been, and that there is as of today, no delay as a result of preserving the existing reserved services of the Lay Commissioners. They acknowledge that by strengthening the field force of inspectors, you could eliminate some delays that at present exist, but they are prepared to testify that whatever delay exists is to be put down to the inadequacy of the field staff—not in quality but in quantity. I want to emphasise that—not in quality.

I do not want to weary the House with tributes to the special quality of Land Commission inspectors but it is an outstanding fact for which the country has every reason to be grateful. No matter how high the quality of public servants may be, if they are called upon to do too much work, they cannot do it according to the standard they have set for themselves. The remedy for any delay which may afflict the Minister for Lands in dealing with various matters appropriate to the Land Commission is to be found not in a change of the character of the Land Commission court itself but in the strengthening of the full force of inspectors not in regard to quality but in regard to quantity. If that is necessary, I am sure the House will not demur to authorising the Minister to expand the number of inspectors available to the Land Commission for the due discharge of their work.

I urge the Minister to reconsider this whole question in the light of what I have said to him today. I can assure him that it is a matter to which we attach most fundamental importance. I want to renew my pledge that if the reform I now urge on the Minister is not given effect to by this Government we shall repeal so much of this legislation as it may be necessary to repeal in order to restore the quasi-judicial character of the Land Commission court as soon as there is a change of Government.

Would the Minister explain two things? Is it not a fact that at present in the "immediate neighbourhood" is considered to be one mile? Does this mean that, in future, when the question of division of estates come up the "immediate neighbourhood" will be extended to three miles? Does it follow? It is very difficult to say that "immediate neighbourhood" in one case is one mile and in another case three miles.

Next, is it proposed to deal with the case of a person who has a residence in one place and an accommodation holding or a small farm more than three miles away? I know that the Commissioner has the right to decide that, in such cases, he need not interfere but is there any guarantee that somebody might not try to bring pressure to bear and say, in effect: "Apart from anything else, you are living more than three miles from the farm" and that, therefore, it could be taken? I have in mind a farm in North Meath which is owned by a widow with a young family who live eight miles away. If her husband had lived, a house would have been built. The family must, therefore, remain in the house in which they are at the moment until they grow up and are able to do something about it themselves. These are the types of cases which would arise. For my information, perhaps the Minister might be able to give me some clarification on that point.

Perhaps, I will get these specious arguments of Deputy Dillon out of the way first. Let me emphasise on these amendments that we are dealing with what is, in fact, the immediate vicinity of the farm for residence purposes, which we are defining. This is a matter for the Lay Commissioners. It would appear that Deputy Dillon, by some very curious reasoning, seems to think that because Commissioner O'Brien is Secretary of the Land Commission he would be able to override his colleagues in the Land Commission and decide, although the law here says three miles that, in fact, it is four or two.

To buttress up that argument Deputy Dillon quotes unknown former commissioners who he says were strongly of the opinion that the Secretary of the Land Commission should not be a commissioner of the Land Commission as well. All I can say about these anonymous gentlemen is that they left no such opinion in writing after them. I have put on the records of this House what I call the last legal Land Commission will and testament of Commissioner Deegan who was appointed by the Cumann na nGaedheal Government in 1930 and who was both Secretary of the Land Commission and a Commissioner of the Irish Land Commission in which capacity he served with distinction from 1930 to 1951. He wrote this letter on his retirement to the then Minister, Deputy Blowick, specifying how essential it is in the interests of good administration to have the Secretary of the Land Commission also a Land Commissioner.

This fear of the Supreme Court's upsetting the whole legal apple cart of of the Land Commission by virtue of Commissioner O'Brien being also Secretary of the Land Commission does not shake me one bit. It is extraordinary how the Supreme Court, if Deputy Dillon's legal advisers are correct in their assumption, never thought fit in all the cases that were before the Supreme Court concerning the Land Commission from 1930 to 1951, to say: "Oh, this business is completely unconstitutional because the Secretary of the Land Commission is also a commissioner of the Land Commission."

I was in a number of these cases concerning the Land Commission before the Supreme Court in my professional capacity. Is it not extraordinary that none of the lawyers all down these years discovered this wide-open constitutional point that becomes so suddenly clear to Deputy Dillon? If he is making the argument against Commissioner O'Brien, appointed by me, the point never occurred, evidently, to Deputy Dillon or to his colleagues in all those years while Commissioner Deegan was Secretary of the Land Commission as well as Commissioner? I think that that disposes of these professed legal fears of Deputy Dillon. While I cannot anticipate any decision of the Supreme Court, if we come to that situation we shall have to meet it.

The Supreme Court, in two cases I mentioned in the course of this debate —(1) in the Dunleavy case from Mayo —upset the whole procedure of the Land Commission since its foundation and the sky did not fall. The Land Commission had to follow out the new procedure laid down under the Dunleavy decision. If something is found wrong in any land court, and the Supreme Court decides it is not properly constituted, that situation will be met. I suggest that this again is another attempt by Deputy Dillon to create legal fears or bogies in the minds of the public outside this House that there is something very sinister in the Secretary of the Land Commission being made a Land commissioner and that in this way the rights under these amendments will be interpreted in a sinister way by at least one commissioner of the Irish Land Commission.

As far as the one mile and three miles are concerned, "immediate neighbourhood" was not defined as far as I remember in any of the Land Acts—this is for congestion purposes. A number of sections gave specific powers to the Land Commission to acquire land for the relief of congestion in the "immediate neighbourhood." That was left to be a matter of fact: I do not know how it was defined. Here, for this particular purpose, that is, for the purpose of defining who is resident and who is non-resident, we are defining it. We are saying that the "immediate neighbourhood" of the lands is a distance of three miles. The answer to Deputy Tully is that there are several cases where you have two farms over three miles distant and so long as they are worked together there is no question of the Land Commission interfering. There is already a provision in law that if it can be proved that the economic working of the farms depends on each other —you may have a man with one farm suitable for tillage purposes——

In the case where there is only a residence in one place and a farm in the other?

I am citing that case. The place where the residence is may be where the man is doing the major portion of his tillage and the other place, which may be over three miles away, may only be useful for winterage. If the Land Commission, in a suitable case, were moving in on him and if he could show that the economic working of his holding required both places it would be a good defence and he would be entitled to severance compensation in the case of the land being taken from him.

We have several cases of this kind throughout the country and I want to emphasise again that these amendments are not designed to deal with such cases at all but to deal with the case where, for instance, a man may have a farm more than three miles distant that he is not living on or not properly using. The amendments are designed to deal with the case of an individual who, through a company— or even himself—is not resident in the vicinity of the land but, perhaps, lives in some city here or on the Continent. I can also think of a fairly common device that has grown up in recent years—I am sure Deputy Tully has come across such cases—of the very big industrialist who has a sort of hobby of having an agricultural holding down the country, to which he can siphon off certain losses on the expense sheet.

They cannot get away with that now.

We have that type of people also. I suggest that where land is required for the relief of congestion this type of person should be vulnerable before others and should be first on the list and in order to give the Land Commission the necessary legal teeth to increase the land pool, to get after that non-resident, it is necessary to have legal definitions of this kind. It is in that sense that I recommend this group of amendments to the House. One of these amendments defines "immediate neighbourhood" as three miles. I was not thinking of that distance originally but Deputy Ryan had an amendment down suggesting five miles and my amendment goes part of the way to meet that view.

The Minister for Lands is now three years in office and despite that he has not gone to the trouble of exploring the records available to him in relation to the subject on which he has now spoken. Those amendments and regulations will be decided on and put into effect by the Commissioners and Deputy Dillon has very clearly stated what may be described as a sound objection against the Secretary of the Department of Lands being a Commissioner. The Minister now refers to the fact that Mr. Deegan was appointed by the Cumann na nGaedheal Government and that he has made a recommendation stating it is advisable, not alone advisable but absolutely necessary, that the Secretary of the Department should be a Commissioner. The Minister did not tell us that when Mr. Deegan wrote that letter to the then Minister for Lands in 1951, Mr. Deegan was dealing with the old Land Commission procedure in court and not with present procedure. There are two quite different and distinct situations.

It is true that Mr. Deegan was the only individual connected with the Land Commission since it was established who made a recommendation of that kind. If the Minister quoted Mr. Deegan and said that he was a nominee of the Cumann na nGaedheal Government, surely the Minister knows that in the records of the Land Commission there is a recommendation by Mr. Dan Browne who was violently opposed to the Secretary of the Department also being a Commissioner, and that Mr. Browne was a Fianna Fáil nominee.

That is not there to my knowledge. There is no such recommendation in the Land Commission that I can trace. The Deputy is drawing on his imagination.

Do not be too sure of that. We might be able to help the Minister to trace it.

I have searched and found no trace of it.

If the Minister does not want to find it, it is easy to miss it. When the Minister found Mr. Deegan's letter to Deputy Blowick when he was Minister for Lands, why can he not find the observations of Mr. Dan Browne who was violently opposed to the Secretary being a Commissioner? Mr. Browne was a nominee of Fianna Fáil in the same way as Mr. Deegan was a Cumann na nGaedheal nominee but it suits the Minister now to quote Mr. Deegan and does not suit him to quote Mr. Browne.

I have already said I could not get any observations on this issue except from Commissioner Deegan which I put before the House.

Between now and the Report Stage, I ask the Minister to make a search in the Land Commission to see if he can find the observations of Mr. Browne who was opposed to this proposal. Everybody knows it is only nonsense for the Minister to say it is necessary in the interests of speeding up decisions to have the Secretary of the Department also a Commissioner dealing with the amendments we are now dealing with when he comes to adjudicate and decide on them. Nobody will believe the officials can give honest evidence in those circumstances.

That is irrelevant to these amendments.

It does not seem to arise.

It certainly does, in regard to distance. When an individual puts up a case to the Commissioners giving reasons why he must reside 3½, 4½ or 5 miles distant from his farm it comes to the Land Commissioners to decide whether there is merit in that case.

That does not seem to arise on the amendments which relate to "immediate neighbourhood".

But may I ask who decides about "immediate neighbourhood"?

It is defined.

But as to whether the distance is three miles or over, who decides?

The Commissioners.

That is the point. Here we have the Commissioners of whom the Secretary of the Department will be one and when he is called upon for his observations as a Commissioner, or to decide on the reports of his inspectors who have already received instructions from him to carry out an inspection and make a report on the matter, he cannot possibly act in the dual capacity as a Commissioner and as the head civil servant in that Department.

He cannot decide what is or is not three miles?

We shall argue about it after Questions.

Progress reported; Committee to sit again.
Top
Share