I move that the Committee agree with the Seanad in amendment No. 1:
Section 7: In subsection (2), paragraph (b) deleted.
Housing Bill, 1970: From the Seanad.
The Dáil went into Committee to consider amendments from the Seanad.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 2:
In subsection (3)—
(1) paragraph (b) deleted, and
(2) paragraph (c) (ii) (II) deleted, and
"(II) subsection (4) of this section shall apply and be deemed always to have applied for the purpose of enabling the expenses of the council of the county in relation to the grant to be charged." substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 3:
The following new subsection added:
"(4) The following provisions shall apply with respect to the expenses under a relevant section of a housing authority who are the council of a county:
(a) in the case of a county with respect to which paragraph (a) of section 8 of the Act of 1966 applies, the exclusion of boroughs and urban districts contained in that paragraph shall be taken as not extending to any borough which stands not designated by regulations under subsection (2) of this section as excluded with respect to the relevant section or to any urban district which stands not designated by regulations under subsection (3) of this section as so excluded,
(b) in the case of a county with respect to which paragraph (b) of the said section 8 applies and which includes an area or areas in relation to which this paragraph applies—
(i) there shall firstly be taken each area in the county consisting of an area or areas in relation to which this paragraph applies and the rural sanitary area adjoining it or them and the expenses under the relevant section in respect of that combined area shall be charged on it,
(ii) other expenses under the relevant section shall be charged as provided for by paragraph (b) (i) of section 8 of the Act of 1966.
In this paragraph `area in relation to which this paragraph applies' means an area consisting of—
(i) a borough standing not designated by regulations under subsection (2) of this section as excluded with respect to the relevant section, or,
(ii) an urban district standing not designated by regulations under subsection (3) of this section as so excluded."
This is rather confusing. There are two sets of amendments— the amendments from the Seanad and the amendments tabled by Deputy FitzGerald and myself.
The first amendments in the name of Deputy Tully is Amendment No. 1 to Seanad Amendment No. 5 with which we shall deal when we get to Seanad Amendment No. 5.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 4:
Section 9: In page 3, line 52 "31st day of August, 1970" deleted and "31st day of December, 1970" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in Amendment No. 5:
Section 10: Before section 10, the following new section inserted:
"10. (1) Subsection (1) of section 26 of the Act of 1966 is hereby amended by the substitution of the following paragraph for paragraph (b):
`(b) the total, determined by the housing authority, of the income of the person and the income of his spouse (if any) does not exceed the appropriate limit, that is to say:
(i) in case the supplementary grant is made in respect of a house the erection of which commenced before the 1st day of August, 1970—one thousand and forty-five pounds per annum,
(ii) in case it is made in respect of a house the erection of which commenced on or after the 1st day of August, 1970, and before the coming into operation of the first regulations made pursuant to the next subparagraph—one thousand two hundred and fifty pounds per annum, and
(iii) in any other case— the limit for the time being specified by the Minister, by regulations made with the consent of the Minister for Finance, as the appropriate limit for the purposes of this paragraph.'
(2) The following subsection is hereby substituted for subsection (2) of section 26 of the Act of 1966:
`(2) A housing authority, in determining the income of a person applying for a grant under this section or of his spouse, may, if the person satisfies the authority that he or his spouse maintains at his or her own expense a dependant person, make such allowance as they think fit, subject to the appropriate limit, that is to say:
(a) in case the supplementary grant is made in respect of a house the erection of which commenced before the coming into operation of the first regulations made pursuant to the next paragraph —one hundred pounds in respect of each person so maintained, or four hundred pounds in the aggregate, whichever is the less, and
(b) in any other case—the limit for the time being specified by the Minister, by regulations made with the consent of the Minister for Finance, as the appropriate limit for the purposes of this subsection.' "
I move amendment No. 1 to Seanad amendment No. 5:
In the fourth line after "total," to insert: "reduced by such amounts as are disregarded by resolution and by amounts deposited with the authority under a housing deposit savings scheme and,".
I know there is only one hour allowed for the discussion and I do not want to have a Committee Stage debate on this. It is suggested in the Bill, as amended, that the local authority would have the authority to fix certain sums in regard to income limits, but in fact instructions are sent from the Department of Local Government as to what, in effect, they should be able to take into account when fixing the income limits. I suggest that, in order to give the local authority the right to do this properly, my amendment should be accepted. This does not need any explanation. The Minister understands what it is aiming at and in order to save time I shall leave it at that.
If I accept this amendment any local authority could pass a resolution reducing the assessable income by a specified amount for the benefit of individual applicants or certain categories of persons. This would lead to too wide a variety of income limits applicable to different individuals and these would be different in different local authority areas. It would lead to a great many anomalies in the administration of income limits. As Minister, I believe the Department must retain control because of the obligation on the Department to provide the funds to enable local authorities to pay these grants. I could not accept the amendment suggested by Deputy Tully.
I should like to point out to the Minister that the section says: "the total, determined by the housing authority, of the income of the person..." In effect, as it stands the local authority has no right to determine; the Department of Local Government determines. Either the wording of the section is wrong or the local authority should be entitled to determine the income. Like the Minister, I do not want to see certain local authorities deciding to allow somebody, for whom they have a special regard, to get into the scheme, who would otherwise be debarred, but I think it should be possible to accept this amendment and depend on the good sense of local authorities to make a general determination which would cover the eligibility of applicants.
This disregarding of "by resolution and by amounts deposited with the authority under a housing deposit savings scheme" would enable a person with an income of £3,000 a year and with £2,000 in this savings scheme that is proposed to qualify for supplementary grants. The whole purpose of the payment of these grants is to enable persons of modest incomes to build their own houses. I do not feel it would be justifiable to extend the income limit to persons having an income of £3,000 because this is not the category of person that we are anxious to cover and to whom we are anxious to see local authorities paying supplementary grants. It would also create difficulties because it would be difficult to assess the cost of this scheme in advance. My main objection to it is that it would allow for an extension of grants to persons of much higher income. This is not the purpose of paying these grants.
Not without the authority of the local authority. The local authority would have to determine from time to time. I imagine they would do it perhaps at the beginning of the year. The Minister is suggesting that if somebody saves money and puts it on deposit for the purpose of building a house—and young people nowadays are doing this to a great extent; saving the deposit for a house before they get married—there should be a special way of preventing these people from becoming eligible. I do not agree with that. As regards somebody with a high income being allowed to get a grant, I do not think that would happen because we all know of local authorities who, when money became scarce, changed the scheme in such a way as to allow in only those who would normally be eligible—the worst cases they could find, so to speak— and when the money became more free they improved the position.
I am not trying to be contentious with the Minister. I am sure he is as anxious as I am to see the scheme applied properly but there is no point in having a rubber stamp. Let us say the Department of Local Government will decide what the income limit will be, which is, in effect, what the situation is now, but do not let us say in this Bill that the local authority shall determine the amount and then say: "But, of course, they cannot. We shall tell them what the amount will be." Either one thing or the other is right. Both cannot be right. Possibly this matter should have been dealt with earlier but I shall not hold up the House. If there is any way in which the Minister can meet me on this point, I shall be grateful.
The Department fix the income limits and it is up to the local authority then to deal with individual cases, keeping within the limits set by the Department. The questions the Deputy has raised about persons making savings before marriage will be dealt with on the Deputy's second amendment, but there is provision made for those persons who have earned exceptional income in years leading up to marriage, and directions have gone to the local authorities asking them to exclude this exceptional income earned usually on overtime by persons anxious to purchase a house in the years shortly before they get married. It is not possible to accept this amendment as the Deputy has it here, as it would divert the sources to an indeterminate amount into subsidisation, thereby reducing the amount of money available for the building of houses.
I do not think the Minister is being fair to the local authorities. What he is saying is that he cannot trust the local authorities to do their own job. In fact, he says the amount is so-and-so. The local authority, the Minister says, work within the income limits set. Frankly, I do not know what he means there because if the limits are laid down by the Department the local authorities cannot go beyond them and everyone eligible under them could come in. However, if the Minister will not accept the amendment, I do not propose to have a trial of strength, knowing what the result would be.
Amendment, by leave, withdrawn.
I move amendment No. 2 to Seanad amendment No. 5:
In the fifth and sixth lines to delete "income" and substitute "regular income (but excluding non-recurring income)".
This is a simple amendment which does not require very much debate. This situation has occurred time and again where people who have considered themselves eligible have been excluded because of having arrears of wages paid to them. Perhaps, a wage increase has been in operation and they are given a lump sum of £100, £150 or £200 during the period for which the eligibility is considered, or they may for one reason or another have got a considerable amount of overtime for a particular period, a bonus for some job they have done. This has been used again and again by local authorities all over the country to declare people eligible who would normally be eligible. It has meant that these people must sit back for 12 or 18 months until they think they have become eligible again. Some of them never do. I think it is a reasonable amendment.
(Cavan): I should like to support this amendment proposed by Deputy Tully, if it is necessary. The principle problem here is overtime. A person might earn an exceptional amount of overtime in one year and that might put him over the prescribed limit for a loan. It is basic or normal salary that should be taken into account, and I think that probably can be done at the moment, notwithstanding all that Deputy Tully says. I should like the Minister to clarify that. If this amendment is necessary it certainly should be accepted.
I do not think the amendment is necessary. As I have explained to Deputy Tully, we have circularised local authorities, and I shall give him the references so that he can check it out. If to his knowledge there are local authorities who are not taking the recommended attitude I shall be pleased to hear about them.
When were they circularised?
On 14th April, 1967, circular H.5/67, as amended by circular H.H.68 of 13th May, 1968. Basically what this circular contained was advice to the authorities that exceptional or windfall receipts in a particular period might reasonably be excluded from its estimate, and that also supplementary earnings such as overtime or commission should not be excluded in all cases because of the danger of creating anomalies between persons whose incomes are approximately the same but made up in different ways. A liberal interpretation of overtime earnings is asked for in marginal cases where a person may have earned an unusual amount of overtime in a particular period in order to accumulate funds for the initial deposit on a house or for marriage. I think that covers the situation fully.
(Cavan): I accept that.
As I told Deputy Tully, if there are local authorities which the Deputy believes are not taking this attitude in their assessments, then I shall be pleased to hear of them.
(Cavan): This is being operated in Cavan and I was wondering if it is completely regular. I am glad to hear it is.
This point arises in relation to Army personnel other than officers. I had occasion lately to apply on behalf of Army NCOs for a housing loan and they have been refused on the ground that the total figure as given by the Department of Defence exceeds the income limit. The figure given by the Department of Defence is under three headings: Army pay, ration allowance and wife's supplement. All these things are taken into account by the local authorities. There is the ridiculous position of which I have had experience lately of a corporal in the Defence Forces being refused a housing loan by the local authority because his income was too high. I would ask the Minister to direct local authorities to exclude ration allowance and wife's allowance. Just to highlight how ridiculous it is, if this man decided to live in barracks the ration allowance would have been excluded and he would have qualified for the loan.
The Deputy has a good point and I shall look into it to see if I can advise local authorities to take a more liberal approach to the assessment of the income of Army personnel.
The Department, in issuing the certificate of pay, could exclude the ration allowance, which is not properly pay——
Whatever way it is dealt with, whether we get the local authority or the Department of Defence to exclude it from income, I shall look into it.
I am glad the Minister has agreed to accept Deputy Cooney's point. The Minister referred to a circular which says "windfall". A windfall is something you get for nothing. On the question of arrears of wages, someone has money coming to him and it happens occasionally that he does not get it, for instance, an employee of the State or local authority. Deputy Lenehan was talking about someone in Mayo who did not get arrears due to him from last year. Anyway, arrears of pension or wages cannot be counted as a windfall and I know a number of local authorities do not exclude them when assessing income.
A second point is that of overtime. The Minister says in his circular that overtime should not be taken into account but should not be excluded in every case. I am afraid local authorities are saying that, if a man has overtime over eight or nine months in a year, it is his regular income, when in fact it may be for a particular year. He may not have got it the previous year and he may not get it the next year. The local authority have no way of knowing that this will not continue and therefore they will count the overtime as part of his regular income. I can assure the Minister that any complaints I receive will be poured on to his desk. If he is satisfied, I am prepared to withdraw the amendment.
Where the income relates to one year only and is outside the general pattern of the person's income, then it could, in my estimation, be taken to be exceptional income. The direction we have given to take a liberal interpretation would apply and it would be excluded.
Certain local authority employees will receive overtime rate or special income because they are doing a special job for three or four months in the summer. They will get that every year. Would the Minister consider that a regular income because they will not get it for the remainder of the year and therefore it cannot be counted out?
I think I have explained the Department's attitude and the advice we have given to local authorities. I do not want to go into individual cases, as the Deputy is now leading me. The House can take it that, generally, our approach to this and our direction to local authorities is not to be strict and severe in their interpretation of these income assessments, but to be liberal and generous in deciding what is the assessable income of the applicant for the purpose of qualifying for the supplementary grant. This is our advice to local authorities and this, I hope, is the manner in which it is being interpreted and operated locally. I would prefer not to go into individual cases. I have told the Deputy I shall consider anything he brings to my notice.
(Cavan): When the Minister said that, if the pattern was that the overtime was rather consistent for a number of years, I gather he said it would then be taken into account. The only case I had recently was a patently clear one because the basic salary was about £1,100 and the overtime brought it to £1,300 but in the previous year the total earnings were less than £1,000. This was a clear case. But if the basic salary had been £1,100 and if for three years running the overtime brought it up to £1,300, would the Minister think that was a case in which the grant should be paid?
The Minister is wise enough not to decide individual cases in the House.
(Cavan): That is not an individual case. It is far from it.
It is.
Mr. J. Lenehan
Deputy Tully has made my point but I understood the Minister to say that in 1967 a circular was sent out to the local authorities on this matter. I would ask the Minister to send another copy of that circular to the Mayo local authority because, if it did go out, the housing officials there are either illiterate or refuse to read.
(Cavan): I thought the Deputy said he would not waste his time reading what goes out from that place.
Amendment, by leave, withdrawn.
I move amendment No. 3 to Seanad amendment No. 5:
In the fourteenth line after "1970" to insert "(or in respect of an application for supplementary grant received by the authority before 1st August, 1970, provided that the grant was not paid in full before that date)".
This is an amendment which the Minister can accept without any qualms of conscience. It is the usual case where the grant has not been paid in full. What I am suggesting is that, if the grant has not been paid out in full in respect of an application for supplementary grant received by the authority before 1st August, 1970, and provided that the grant was not paid in full before that date, the person should qualify. It would appear to me from the reading of the Bill that it is intended to exclude people who have received any part of the supplementary grant before 1st August, 1970. If that is not so, then I am satisfied.
Is this for the supplementary grant?
Yes.
But if part of the supplementary grant has been paid this does not arise.
Why?
Because if the local authority have agreed to pay part of it then the person has qualified and must have been within the income limits which operated at the time.
If the Minister will look it up he will find that a person may not qualify under this. If he has applied for the grant before the 1st August and if none of it is paid at all the decision whether or not he qualifies has not been made. I claim that if the application has been made before 1st August, 1970——
Deputy Tully's amendment does not make this clear but I think I understand now what he is getting at—persons who have applied for the supplementary grant before 1st August but who have not got any decision from the local authority. If these people have not commenced building their houses before 1st August they will qualify. Even if they have had a decision from the local authority refusing them because of being in excess of the income limits they can reapply before 1st August provided they have not commenced the building of the house by 1st August.
Why should the building of the house have any bearing on it? It is not completed anyway. Building is in progress. The day after tomorrow is 1st August so it would be almost impossible for people to reapply before that date, or for people who have decided they would not qualify to apply. This is only a small point which will affect many people. It will never recur.
It does not arise. There must be some operative date. I have taken this date, which was included in the Bill for other purposes. The concession is something which was desired and I have gone quite some way. I am afraid I cannot go back, as the Deputy would wish me to. All I can do is allow the payment of this to persons with this additional income from 1st August onwards. I do not propose to go back.
Would the Minister not agree that, if a person has applied for the State grant and has not been paid in full and the House is still being built it is unfair for the Minister to say that he will not qualify, whereas, if the application was made after 1st August, the person would qualify. Only a matter of weeks is involved. If this had gone through the House a month ago—let us not quarrel about who is to blame for that—this situation would not arise. Because it is a question of days the smart fellow who gets information on what is happening here and dashes in to his local authority and makes application this evening qualifies. The normal man in the same situation will not qualify.
There is no question of anybody being smart and rushing into a local authority. If construction of the house has commenced on or after the 1st August the person will qualify —1st August is the operative date. The construction of the house has been used as the commencement date for all the other provisions in the Bill and it is normal procedure to accept it.
Amendment put and declared lost.
I move amendment No. 4 to Seanad amendment No. 5:
In the seventeenth line after "per annum" to insert "(related to the Consumer Price Index for mid-August, 1970 and varied thereafter to the nearest pound sterling by reference to subsequent changes (if any) in the Index on the date of publication in Iris Oifigiúil by the Central Statistics Office)”.
It would make it most convenient in future years if we could alter the amount without having to introduce a Bill here. This would give the right to the Department of Local Government to alter by order, just as the consumer price index alters, the qualifying figure. I think the Minister will understand what I mean.
The amendment approved in the Seanad gives me the power, with the consent of the Minister for Finance, to fix income limits. At present legislation is required to change these income limits. It is very necessary that the Minister and the Government should have some control over the income limits and be able to fix them at any particular time. It would be wrong to tie the hands of the Minister for all time by tying this to the consumer price index. As well as that you would have to take a lot of other factors into account. These would include trends in wages and salaries and particularly changes in building costs which might not necessarily be reflected in the consumer price index.
On those grounds I could not agree to accept the amendment. There could be a substantial difference between the variations in the price of building materials and the variations in the consumer price index. The amendment gives the Minister the option of varying the limits as he sees fit in the circumstances that arise at any particular time, and the Department will now be able to keep the income limits under constant review and with the consent of the Minister for Finance vary the income limits. I would assume that it would be an upward trend, that they would be increased as conditions allowed and as it was felt necessary to increase them.
I know that they have the right to review them constantly but the object of the amendment was to ensure that they are reviewed constantly. We have had the ridiculous situation where this sort of thing has not been done and we have had, as the Minister knows, increases. The Minister talks about increases in building costs. There have been fantastic increases in building costs and neither grants nor loan eligibility have been increased in line with the drop in the value of money. If the Minister was at my job for a while—I am sure he will pick it up quickly enough in his Department but not as quickly as if he had 20 years' experience as a trade union official—he would find that there is a pattern which runs right through the whole thing and if the cost of one aspect of living goes up then right along the line the cost goes up. It has been generally accepted that the consumer price index is an index on which most prices can be based and most costs and indeed the value of money if one goes to the trouble of checking it, comparing it with the changes in the consumer price index, and they have been running parallel for a long time. For that reason the Minister should give himself the right and have the onus on his Department to alter them and not have us waiting for a number of years before somebody like the Minister, new to the job, comes along and says "This has not been changed for a long time, I will change it." That is what has happened in this case. When the Minister has been there long enough he might just fall into the groove and say "It was good enough in 1970, so it is good enough in 1980; we will leave it be."
I do not think the Deputy genuinely expects me to accept his amendment. The proposal is completely unprecedented in statutory provision and I do not intend to try——
The Minister could always say that he was the first to do it.
——to tie all future Ministers for Local Government to the income limits as determined by the rise in the consumer price index. I think it is much more practical to do as I have proposed, that the Minister should be able to influence changes without having to wait for housing legislation to do it. This is an important step forward because it allows for greater flexibility for the Minister to ensure that if at any time he feels there is a genuine case for increasing the limits he can bring that proposal forward and having got the sanction of the Minister for Finance, go ahead by regulations as against by legislation as at present.
Amendment, by leave, withdrawn.
I move amendment No. 5 to Seanad amendment No. 5:
In the thirty-third and thirty-fifth lines after "pounds" to insert "(related to the Consumer Price Index for mid-August, 1970 and varied thereafter to the nearest pound sterling by reference to subsequent changes (if any) in the Index on the date of publication in Iris Oifigiúil by the Central Statistics Office)”.
As time is running very short I will not detain the House. This is a rather similar amendment.
As far as I know, Deputy, there is no time limit. I want to be fair to the Deputy.
We were informed that there was an hour to discuss this Bill.
The Chair was not informed and that arrangement would be by agreement amongst the Whips.
I was officially informed by the Parliamentary Secretary, the Government Whip, that the time limit was 10.30 to 11.30 and that has not been withdrawn. I would be glad if you could clarify that.
I am not aware of any time limit. I would have been opposed to it if I had heard it.
In fairness to Deputy Tully, I did mention to him that there would be an hour. I did not mention it to the Chair, of course. But there is no specific time limit, one way or the other.
You should have waited until 11.30 to tell me that.
As I say, the Deputy is right in the context.
Thank you very much but——
That is all I can say. Otherwise——
We are establishing new precedents here all the time, Minister.
A new precedent in that the Deputy is right.
The only thing the Deputy can do now is to execute me.
Unofficially you are doing something which officially is wrong.
It is neither official nor unofficial. I just mention it to the Deputy.
The Parliamentary Secretary told me there was a time limit on the debate.
(Cavan): On a point of order, the position instead of becoming clear is becoming obscure. What is the position? I take it there is no time limit?
The position is that there is no time limit.
There was no agreement on a time limit amongst the Whips.
(Cavan): The Parliamentary Secretary just misled Deputy Tully.
No, I did not mislead him. It was a by the way remark —an hour.
No, it was no by the way remark. Deputy Andrews came to me and told me it was proposed to have a time limit of an hour and subsequently he confirmed that with the Labour Party Whip who told me the same thing. However, it is not worth quarrelling about.
I agree.
Having had eight years' experience as a party Whip I am always very careful that when the party Whip says something he will be able to stand over it in this House.
Anything I have said in my short experience as a party Whip I have been able to stand over. In this particular context there has been no particular agreement amongst the Whips.
(Interruptions.)
Deputy Tully on the amendment.
The Minister is asking for a long discussion which he may get if he is not careful. The discussion might outlast his position. If a couple more of his backbenchers come into town he might find he has no Government.
(Interruptions.)
I have moved the amendment, Sir.
For the same reasons as I could not accept amendment No. 4 I cannot accept this amendment. This amendment is more or less identical as it is tying the income limits to the consumer price index.
The trouble is that the Minister has only been a short time in office but he has had the misfortune to follow somebody who had a reputation of being very rude. Possibly he got the idea that by saying "No" to everything he would develop the same reputation but, maybe, not with the same results. For that reason he intends to throw out this amendment pretty arbitrarily. I suggest this is something which requires consideration by the Department and, if the Minister does not accept it, I hope to see in the not too distant future an approach being made by a government to this whole problem, a government which will not tolerate the situation in which for years and years it has been stated that the standard set with regard to grants and loans will remain despite the fact that the Minister now says he has the power to alter them by regulation. I am quite sure the regulations will be used very sparingly and I am trying to ensure that when regulations should be used they will be used.
Amendment, by leave, withdrawn.
Question put and agreed to.
I move: That the Committee agree with the Seanad in amendment No. 6:
6. Section 11: In subsection (1), page 4, "31st day of August, 1970" in lines 18 and 20, deleted and "31st day of December, 1970" substituted in each case.
Question put and agreed to.
I move: That the Committee agree with the Seanad in amendment No. 7:
7. Section 11: In page 5, line 3, ", provided that this subsection shall not apply in relation to a person who, at the time when the tenancy last created in the dwelling was terminated or otherwise ceased to exist, was ordinarily resident in the dwelling" inserted after "imprisonment".
There is an amendment—No. 6—in the name of Deputy Dr. FitzGerald to Seanad amendment No. 7.
I move amendment No. 6:
After "resident in the dwelling" to insert "or to his licensee or invitee".
This amendment is designed to avoid the situation that would arise through the inadequacy of the amendment introduced in the Seanad. That amendment certainly alleviates the position or improves the position created by the amendment originally introduced in the Dáil because that amendment was one under which anybody who entered under any circumstances on corporation property, after a tenancy had terminated, could be sent to prison, including, of course, the sitting tenant who might simply be a person who had failed to pay his rent and had been proceeded against on that account. As the amendment was introduced in the Dáil a new principle was also introduced and to overhold would be a criminal offence for which one could be sent to prison. The Minister tried to meet this by introducing an amendment in the Seanad to cover the case of a tenant in that position. It is a good thing he did.
This shows the undesirability of hasty legislation. A special procedure had to be adopted here to get this amendment into the Housing Bill and that in itself reflects the fact that this provision seems to have arisen from the feeling of the Government that they would not get their Forcible Entry and Occupation Bill through and they desired to get at least some of the provisions of that Bill into law. They, therefore, adopted this unusual procedure, which required a special resolution of the House, to enable them to introduce an amendment in the Dáil. That procedure was undesirable; to introduce a new criminal offence by means of a Housing Bill is something which, I believe, has no precedent.
The Deputy is confined to the amendment. We can discuss only what is in the amendment.
The need for the amendment arises because of the fact that the Government acted hastily in order to get this amendment through here for their own purposes and, in acting hastily, the amendment was so badly drafted it now requires to be itself amended. That is the point I am making. It was foolish of the Government to tackle the matter in this way. One needs to think very carefully before creating a criminal offence. It is now proposed to make it a criminal offence for anybody to visit a property in which there is a sitting tenant who has overheld and the person who visits can be sent to prison for doing so. Anybody who introduces a provision of that kind deserves criticism and criticism is necessary here because this was done in haste. This is a wrong procedure.
The whole question of people's rights in the matter of property is one about which the law is very careful. The law has always protected the occupier and has protected him against any forcible ejection, even by the landlord himself. This is, in fact, one of the most striking provisions of the law of property in these islands. A particularly striking feature is the fact that, whereas British legislation in this respect confines itself to penalising the landlord who forcibly enters property to put a tenant out, even if the landlord has a right to that property, the Forcible Entries Act in Irish legislation goes further and requires that the occupier, if ejected, be allowed to reenter. The reason for this is the undesirability of allowing people to take the law into their own hands or even allowing the police to act without the authority of the court in a matter concerning the ownership of property, even where that ownership may be in doubt.
I am afraid the Deputy is getting away from his own amendment.
On the contrary.
The Deputy may not widen the discussion at this stage.
I am trying to explain why this amendment is necessary. It is necessary because legislation was drafted so hastily as to leave innocent people under threat of being sent to prison. This should not happen. It is undesirable to introduce a new criminal offence in a haphazard, thoughtless way, and, it is because that was done, that we are in the difficulty in which we now find ourselves. The difficulty is a quite serious one. It is true that the tenant who has not paid his rent and holds on cannot be sent to prison for so doing. Let us think of the people who can be sent to prison under this amendment: anybody who enters can be sent to prison.
What does entry mean? There is no definition of entry in this hastily drafted provision. There is no definition of entry in the Local Government code or in the legal dictionaries so far as that particular law is concerned. The word "entry" exists in the criminal law all right and there it is something which can happen very easily. One need not go into a building to actually enter it; under the criminal law the smallest entrance or trespass of the human body on the premises is sufficient. Putting one's foot on the doorstep of a dwelling is sufficient to connote entrance.
There is no special definition of entry here and so the interpretation that must be given to entry must be that in the criminal law already on the Statute Book. If you put your foot on the doorstep you are committing the act of entry under this Bill as drafted. In those circumstances anybody who goes to the door of a house in which there is a tenant who happens not to have paid his rent and to be overholding—the tenant is protected from criminal proceedings by the amendment introduced in the Seanad—is committing an offence.
The milkman delivering milk could be sent to prison for a month. Supposing a cat strayed in and a boy followed it to take it out he could be sent to prison. If someone is sick in the house and a priest comes to visit he can be sent to prison. If a doctor calls to see a patient he can be sent to prison. If a lawyer calls to advise the tenant he can be sent to prison. If a TD calls to persuade the tenant to leave he can be sent to prison. If a member of the St. Vincent de Paul Society calls, he can be sent to prison. Even the postman could be committing the offence of entry by putting the mail in the letter-box. The postman and the milkman can be sent to jail. The process server who calls to serve a writ can be sent to prison. The man calling for the insurance contributions can be sent to jail; the man reading the gas or electricity meters or indeed relatives or friends, who may be invited to call, can be sent to jail.
I cannot conceive that it is the Minister's intention to fill the prisons with this varied selection of innocent people. The fact that he threatens to do so is, I am sure, due to inadvertence rather than malevolence. In view of the situation that has been created by the hasty drafting of the section and the decision to bring this matter within the scope of criminal law—which is itself dubious—I would ask the Minister to accept this amendment.
After six centuries of provisions in the law designed to protect the occupier of premises, I have grave doubts about making trespass into buildings a criminal offence. It has never been a criminal offence in this country and I am doubtful about it now. I recognise that a defence can be made for such provision in one instance only. The reason the offence of trespass has not been a criminal offence is that by making it an offence it would involve sending people to jail over matters of disputed property rights and as property rights are often in dispute the use of criminal law is entirely inappropriate. It has only been used once in this country in a penal code against land agitation in 1851 by the British Government; even the British Government did not go so far as to apply it to buildings but only to land. That is the Act under which anything that inhibits agricultural exports is a criminal offence, as well as the breaking of workhouse windows.
In this instance we are dealing with corporation property, the ownership of which is not in doubt. For that reason it is defensible, and, although I am not happy about it, I accept the Minister can make a case for making it a criminal offence because the ownership is not in doubt. In those circumstances perhaps there is a case for making it a criminal offence, but there is no case for making it a criminal offence for anyone who legitimately goes into the house. The Minister must realise that a mistake has been made through inadvertence and at least by accepting the amendment the mistake can be retrieved.
This section is required to act as a deterrent to persons to take up occupation of local authority houses without the consent of the local authority. The House is aware that this has been a practice, particularly in Dublin city, for quite some time, and it has created many difficulties for the officials of Dublin Corporation. It has caused frustration to the legitimate applicants on the Dublin housing list. Had these persons not acted in an illegal manner qualified persons would have obtained a house from the local authority. This kind of action cannot be justified——
Hear, hear.
Because the law as it stood was not strong enough to act as a positive deterrent, it was felt necessary to introduce some legislation that would act as a greater deterrent. The purpose of this section is to do that. I think Deputy FitzGerald has let his imagination run away with him when he quoted cases of a TD calling on a house and as a result of entering the house without the knowledge of the local authority he commits a criminal offence. The Deputy named a variety of persons who in the ordinary course of their work could have legitimate reason to call to these houses and it is naïve of the Deputy to expect that a case would be prosecuted in any court against persons acting in this manner. The section is not intended to operate against people who are going about their legitimate business; it is only intended to act against those who take up occupation of local authority houses without getting the tenancy from local authority. It is not intended that it should operate against a person who had been living in the house with the official tenant who may have died. The person remaining in the house could be said to be there without the consent of the local authority; but it is not intended that the section should operate against that person. I am satisfied, as are my legal advisers, that this section caters for the kind of occurrences we are trying to prevent.
There are some anomalies in Deputy FitzGerald's proposals. The Deputy mentions the licensee or invitee but he would be creating a situation where the tenant could nominate his successor if he was about to relinquish the tenancy. If the Deputy's amendment were accepted it could act as an instrument for intimidation of the tenant by persons who were anxious to go in as squatters. If those people were aware that the tenant was about to leave the house, they could intimidate him into saying that he had invited them in. I could not agree to accept this amendment because of the extra difficulties that would be created.
There is a difficulty that tenants of corporation houses may begin to sublet certain rooms in the house. In some cases local authorities permit this, but it cannot be done without the consent of the local authority. However, it would be highly improper of the local authority to turn a blind eye to subletting that was creating gross overcrowding. Again, this would be covered by Deputy FitzGerald's amendment. These people would be invited in——
Will subletting be a criminal offence?
These people would be invited in as subtenants and if there was gross overcrowding, unless the local authority proceeded to evict them, they would lose control over management of houses they had built. It would create a most unsatisfactory situation. Therefore, I cannot accept the amendment proposed by Deputy FitzGerald.
I hope the Minister in his remarks on his own legislation does not think that the housing crisis in Dublin, which in the first place gave rise to this lamentable habit of squatting, will evaporate by virtue of any legal enforcement he may bring in in any Bill. The problem in Dublin is the shortage of houses——
The Deputy appreciates that he is getting away from the amendment.
I am fully aware of the housing situation, not alone in Dublin which seems to be the only area in the country that occupies the Deputy's mind——
It is the worst area.
I am conscious of the situation that exists in the whole country. I do not take Deputy O'Leary very seriously when he suggests I might consider this an instrument to relieve that problem. It is not and was never intended to be. It is getting away from the intention of the section, which is to ensure that those who are fully and legally entitled to the houses get them and not other people who use strongarm methods.
The House must get back to the amendment that is before the House, namely Deputy FitzGerald's amendment.
The purpose of the amendment, as Deputy FitzGerald sought to make clear with his examples of what could happen, is to show that the section, as introduced, is inadequately drafted and leaves room for consequences not desired by the Minister. The Minister has indicated the reasons for the section and they are commendable reasons. You cannot have a situation where people take the law into their own hands and force entry into an unoccupied house. That must be curbed.
Why it happens is another thing. How to curb it is the point of this section and this amendment. We are anxious that it will be curbed in a way that will be clear and that will not lead to any doubt as to the legal position. The section, as drafted, requires Deputy FitzGerald's amendment to ensure that innocent people will not be perhaps unwittingly prosecuted. It is not an answer to say that, in a bona fide case, no prosecution will be taken. If the legislation were properly framed, that could not be said because it would not be possible to take a prosecution in a case where an innocent person might have gone into possession or a person not intended to be covered by the spirit of this Act.
The courts will have to be dealing with the letter of this Act and the corporation will have to enforce the letter of the Act. As drafted, the consequences which Deputy FitzGerald outlined could follow. I think he gave those extreme examples to highlight for the Minister the consequences that could follow. As drafted, the offence can only be committed when there is no tenancy. At what precise point of time a tenancy becomes a non-tenancy is something that gives rise to considerable doubt in the legal world. Is it when notice to quit expires or is served or is it when a demand for possession is made consequent on such notice to quit? The ordinary incidents of a normal tenancy are excluded to some degree in the case of local authority tenancies. I can foresee a field day for lawyers in both the summary and superior courts in interpreting whether or not there was a tenancy in existence at the time the alleged offence was committed. In order to remove that situation and to tighten the drafting, Deputy FitzGerald's amendment will go some way towards that end. It is essential that, when a new criminal offence is introduced, the crime should be absolutely clear. There should be no doubt whatever as to when it is being committed. As drafted, this section does not make that position clear at all.
You could have the situation where a person could be in occupation legitimately following the termination of a tenancy. You could have the situation where a person took out letters of administration to a deceased tenant and it was necessary for that person to obtain access to or to enter the dwelling concerned in order to secure the assets of the deceased. That person, technically, would be committing an offence under this Bill in performing his legal duty. Again, a person without obtaining formal letters of administration might constitute himself administrator dissentor and, for that purpose, enter into possession. Again, he would be technically, under this section, guilty of an offence. It is not an answer for the Minister to say, in effect: "But that person would not be prosecuted". The point is that he could be prosecuted and, so long as he could, the section is badly drafted. I submit strongly to the Minister that there is something very wrong in this, in any criminal offence, particularly in a novel and new criminal offence.
(Cavan): I shall not detain the House more than a couple of minutes. In the first place I want to make it clear that I am not here to defend illegal squatters or people who improperly take possession of houses. I think I made that clear in my remarks here yesterday evening. However, I am a little bit alarmed to hear the Minister saying that this section is wide enough to cover subtenants. The Minister said that. I do not think it is.
Deputy FitzGerald's amendment would cover subtenants.
(Cavan): I understand the Minister to say that this section as drafted will leave subtenants open to prosecution and imprisonment. That is what he said. I hope it is not so. From his local authority knowledge the Minister will know that corporation and urban council houses throughout the country are full of subtenants, most of whom are related or inlaws of the legal tenant. I hope the Minister does not intend to make it a criminal offence for a parent to bring his son and daughter-in-law into the house to reside with him or her because I think that is going much too far.
I could see difficulties if Deputy FitzGerald's amendment were accepted exactly as it is here. It could be difficult to enforce the section and there might be abuses. However, the spirit of the amendment is correct and it should be accepted. If instead of "...or to his licensee or invitee" words such as this were substituted, "...or to his bona fide licensee or invitees", or words to that effect,"or to a licensee or invitee who, in the opinion of the court, was a bona fide licensee or invitee". That would get over the intimidation the Minister spoke about or it would get over bogus invitees or licensees.
My amendment does not include subtenants in any way. Deputy FitzGerald's amendment would include them. If a tenant of a local authority invited persons to stay in the house these persons could be deemed to be invited by the tenant and——
(Cavan): He is excluded. I am afraid the Minister is getting out of his depth. I know he is a good swimmer but he is out of his depth here.
It is not intended to include subtenants for prosecution. I should not like any comments of mine to be so interpreted. My amendment excludes from the provisions of section 12 all persons ordinarily resident in the house, this would include subtenants. My amendment was recommended to me by the Parliamentary draftsman and legal advisers. I am accepting that and I cannot accept the amendment proposed by Deputy FitzGerald.
Was the original Bill not recommended by the same Parliamentary draftsman?
This section was introduced by me after I took up office as Minister for Local Government.
Originally the Bill was drafted by a Parliamentary draftsman who recommended at the time that it should read in a certain way.
Without the Minister's amendment.
I am not happy about Deputy FitzGerald's amendment. It would create further anomalies. One must bear in mind that it is the local authority who would prosecute in this case. It is unreasonable to expect that the local authority would prosecute the type of person whom Deputy FitzGerald suggests may be prosecuted. The section does not intend to cover persons in that category. A local authority would want to be out of their mind to bring the type of prosecution the Deputy is suggesting. This amendment is not put down to cover that type of person at all.
Is it not true that the local authority can apply for ejectment proceedings without specifying the reason and get the ejectment?
(Cavan): of course they can.
They can eject, yes. This is a criminal offence which we are now discussing.
They can eject.
What is the point of it?
The present law as it stands is not acting as a deterrent to persons going in and taking up occupation.
The local authority will not do their stuff.
They can be ejected and the same persons can take up possession immediately after ejection. This process can become a continuing action, with the local authority not achieving their aim to regain possession of the house for the purpose of reletting it to a person who qualifies on their priority list. Those are the simple facts of the situation.
(Cavan): Surely the Minister is not correct in saying the local authority prosecute. What is his authority for saying that?
Surely it would have to be the Garda authorities.
Section 116 of the 1966 Act.
My apologies to the Minister.
The Minister has raised so many points now, some of them very doubtful, that I think we must go back over this a bit. The Minister opened by explaining that this was intended to deal with squatting. As I have pointed out to him several times in the House, in fact, squatting comes under the ordinary civil law and at present local authorities have no difficulty in securing ejectment proceedings against squatters. Sometimes they are loath to proceed but this does not change anything here. They will be even more loath to proceed if it is a criminal offence than they are when it is only a civil offence.
I am not clear as to why the law has to be changed and a criminal offence has to be introduced. The Minister should have regard to what was said by Lord Hailsham, the Lord Chancellor of England, the conservative and Tory Lord Chancellor of England, the upholder of law and order there. In an interview in the Sunday Times last Sunday week, when asked whether he intended to introduce criminal legislation to deal with these matters he said: “Certainly not”, that there was no need for it, that the civil law dealt with these matters and that it needed to be strengthened and improved. In England they have strengthened and improved it. A new Supreme Court rule, No. 113 I think, has been introduced which enables them to proceed against people who are squatting on property even if their names are not known, whereas hitherto it was necessary to know their names.
I would fully support any measures to strengthen the civil law against squatting. I would also support measures for local authorities to use these provisions, though I would wish them to be used humanely and I would hope that where people were squatting, not for political motives, not to cause trouble, but in desperation, they would, before being ejected, be offered alternative accommodation. Incidently, that has been the practice of Dublin Corporation to my knowledge until today. I understand at this moment an ejectment is proceeding in which the people have not been offered alternative accommodation. It is the first time in my experience that this has happened. This is a case in which people have been in a house for over a year.
The Deputy will appreciate that we are getting away from the amendment.
I am answering the Minister's opening remarks about why this is necessary. I am pointing out that it is not necessary.
The Chair cannot permit a wide-ranging discussion again. The discussion must be relevant to the amendment.
I did not want it to be suggested that on this side of the House we were in any way condoning squatting. On the contrary, we would welcome any steps to deal more effectively with squatting although, in cases of genuine hardship, to deal with it humanely.
I did not really follow the point about the subtenant. Is the Minister suggesting that under my amendment the person who is overholding could invite someone in and make him a subtenant? I would have thought—and my knowledge of the law may be defective —that somebody who is an invitee or a licensee is not a subtenant. I would have thought a subtenant was in a different category. I would not have thought that a subtenancy would be valid as covering a licensee or invitee. Surely if a man became a subtenant he would no longer be a licensee or invitee. Therefore, if a subtenancy were created by an overholding tenant after the point where he had ceased to hold the tenancy, it would seem to me the creation of that subtenancy in respect of somebody who had become a resident in the house, would withdraw the protection of my amendment from him because by becoming a subtenant he would cease to be a licensee or invitee. On this, I would require legal advice. The point was raised by the Minister. I had not considered it. I think it is open to question as to whether I am not correct in this respect.
Deputy Fitzpatrick has suggested an amendment saying a bona fide invitee or licensee. I would accept that, if it helped. I would accept any proposal from the Minister to meet my point. There is normal procedure for legislation in this House. Legislation is prepared. The Opposition examine it carefully. They may find defects or loopholes. If there is a genuine defect or loophole, in particular if a law creates a criminal offence in respect of innocent people because of defects in drafting, it is the responsibility of the Minister concerned—a responsibility which most Ministers accept—to meet the point made. The amendment drafted by the Opposition may itself be effective in some respects just as the original legislation was defective.
That is met by the Minister saying— this is the normal procedure and the Minister must know this from his experience as a Deputy, even if his experience as a Minister has not yet been sufficient to bring him through this mill—to the Opposition Deputies, as the Minister said to me: "Your amendment is too sweeping. It has these defects. However, you have a valid point and I propose to meet it by doing X, Y or Z." He then proposes a counter draft which, if it meets the point made, the Opposition accept, and the amendment goes in in the Minister's name and he is welcome to the credit for it. That is how legislation is put through this House, a Leas-Cheann Comhairle, as you know from your long experience.
In this case we have an extraordinary position. The Minister made objections to my amendment which I think have some validity. I do not quarrel with that. I do not claim that it is a brilliant amendment. It is designed as a means of dealing with the problem, but it is not necessarily the best means. Having admitted that he is creating a criminal offence in respect of all the categories I have mentioned and that any of these people could be sent to prison, the Minister simply says that the law will not be enforced against them. It is a bad principle to introduce legislation which makes criminal offences in respect of innocent activities and then promise it will not be enforced.
That principle is one which no Opposition party could accept. If the Minister were sitting on this side of the House and a Fine Gael Minister or a Labour Minister said this to him, he would be the first to protest that it was bad law, and bad legislation, and not the way to proceed. The onus is on the Minister to propose an amendment to my amendment, or a modification of my amendment, or an amendment of his own to meet this point. He has a duty to do that. The House cannot accept that innocent people—a boy following his cat into the house, a postman delivering a letter, a milkman, a priest, a doctor—should become guilty of criminal offences but the Minister promises that the corporation will not prosecute them. That is no way to proceed.
If there is a genuine need for this provision, which I gravely doubt, because it is adequately covered by the civil law if properly enforced by the local authorities, it should be designed to meet the problem of squatting, whereas this legislation covers the whole field of anybody who enters. May I also make a point that the Minister in introducing this Bill to the House told us it was intended to deal with people who break into corporation dwellings? That, of course, was misleading. He misled the House. There is no reference anywhere to breaking into a corporation dwelling. The Bill talks about people entering. They do not need to break in. I can quite see that there may be some kind of a case for making breaking into a corporation dwelling and occupying it a criminal offence but, that anybody who enters through the door which is wide open, at the invitation or behest of somebody who, as far as he knows, is the legitimate occupier of the house, should be guilty of a criminal offence is quite wrong.
I have two other amendments down. I have some reason to believe that they may not be accepted as being in order. This may be a pity because one of them deals with this question of entering and suggests that the entry should be forcible. That, in fact, is what the Minister in his opening speech on Committee Stage told us the Bill was doing. He referred to the question of breaking into a house but that is not what this Bill does. May I make this point, and it is completely relevant to the amendment? If the word "forcible" had been used in relation to the entry, my amendment would be unnecessary because, obviously, the boy following his cat in, or the postman, or the priest, or the doctor, does not make a forcible entry. Our difficulty here arises because the Minister in drafting the Bill did not implement his stated intention. Had he done so, and had the Bill applied only to squatters who broke into a house, then my amendment would not be necessary at all.
There is bad drafting from start to finish of this section, with its failure to implement the Minister's own stated intentions that it was to deal with people who break in, its failure to exclude those categories of people who would be completely innocent entrants of the dwelling, its failure to appreciate the need to define "entry" more precisely—because, in the absence of a definition, the criminal definition of "entry" would apply. These defects in the Minister's handling of this Bill have got us into this difficulty. It is not our fault. It is the Minister who in these three different ways created the problem.
The onus is on the Minister to propose to us the means to remedy it. We clearly cannot accept, he cannot expect us to accept, he would not himself accept on this side of the House, a statement coming from the Minister that we are making it a criminal offence for all these innocent people to do these innocent things but we promise we will not enforce it. That is something we cannot accept and the Minister knows we cannot accept it.
Another point to which I wish to draw the Minister's attention is that certainly under Dublin Corporation corporation houses are left vacant for a long period and are a standing temptation. Vacancies are not filled by ordinary tenants at the proper time so that in a situation of poor housing there is a temptation to unfortunate people to go into these vacant houses when they are vacant over long periods.
The Deputy is moving wide of the amendment to the amendment and it is not relevant.
I am being generally critical of the Minister's attitude to the whole problem.
The Deputy will appreciate that the Chair cannot allow a wide ranging discussion on matters like this where we are discussing an amendment to an amendment and where we are strictly confined.
The corporation should fill their houses rapidly and in time so that there is no temptation to these people to come in and take over.
There is a further point arising on the question of drafting and the uncertainty of the position of a defendant prosecuted for this allegedly criminal offence. The Minister's amendment in the Seanad excepted from the ambit of the offence any person who was ordinarily resident in the dwelling at the time of the termination of the tenancy. This phrase "ordinarily resident" has not been defined and I think it defies definition. You would then have a situation where a person comes into court and says: "I had gone in to live there and I was a week there but my grandmother died in England. But for that I would be ordinarily resident in it for a longer period." Or he may say: "My one day's residence in it constitutes the commencement of ordinary residence." It is being left to the individual courts to interpret what "ordinarily resident" means.
I do not think the law is satisfactory when somebody cannot look at a piece of legislation and say: "If I do this I am committing a criminal offence." As it stands, a person will look at this and say: "I might be committing a criminal offence."
The Minister may be in a difficulty because points have been made that, perhaps, he had not fully appreciated before this debate and it is not easy to find a solution to them quickly. If it facilitates the Minister in finding a solution—I think he must agree that we need a solution to this problem—we would be willing to agree to leave the matter over so that he could come back with an amendment later in the day which we would then take without discussion, if he came back with an amendment that met our point. We appreciate the difficulty in regard to the business of the House. We would like to help the Minister. We appreciate that he may have a problem in drafting something to meet the points made in this discussion. If we can help him in any way by giving him an opportunity to think about it and come back later with an amendment which we would be prepared to take without discussion, we would be happy to do that.
There is one aspect of the section with which I am not particularly happy and this is the definition of a person making an entry into the dwelling. I think this is the point that is bothering the Deputy also. I appreciate the Deputy's offer to facilitate me. I shall accept the offer and introduce an amendment later in the evening. I am not completely satisfied that the section, as drawn up, covers the situation.
We appreciate that statement. The Minister's willingness to do this is something we very much appreciate. That is the way good legislation is made.
Progress reported; Committee to sit again.
Could the Minister indicate to the House when the discussion can be resumed because an order must be made?
Immediately after Question Time.
Ordered: that the Bill be resumed immediately after Question Time today.