Prohibition of Forcible Entry and Occupation Bill, 1970: Committee Stage.

SECTION 1.

I move amendment No. 1:

In page 2, subsection (1), to delete all words from and including "and" in line 13 to the end of the paragraph.

The section is the definition section and the first word defined is "forcibly". It is defined as "using or threatening to use force in relation to person or property". My amendment seeks to delete the words after "property". The reason is that these words constitute in effect the offence of conspiracy and are completely out of place in the definition section. I doubt if the word "forcibly" needs definition because it is a word with a clear and obvious meaning in the ordinary use of the English language and certainly it is not necessary to define it by including what is in effect a definition of the offence of conspiracy. If the Minister wants to widen "forcibly" to include conspiracy, he has already done so in a subsequent section. "Forcibly" should not have been defined in the way it is defined in section 1 and for that reason I consider that it should be deleted.

I cannot accept this amendment because it seeks to delete an important portion of the definition of the word "forcible". The portion of the definition which it is sought to delete is based on the meaning which was given to the concept of the use of force in judicial decisions throughout the centuries in relation to the existing Common Law and statutory offences of forcible entry and forcible occupation. The Forcible Entry Act of 1381 speaks of an entry "with strong hand" or "with multitude of people". According to Halsbury Laws of England and other authorities, it is not necessary in order to constitute the offence that there should be actual violence to the person of anyone. It is sufficient if there are threats to those in possession giving them just cause to fear that bodily hurt will be done to them if they do not give up possession. The offence may be committed by going to the premises armed or with such an unusual number of persons as plainly to show that force will be resorted to. Not only does the definition in the Bill largely coincide with the interpretation which has been given to the concept of force in existing law, it also accords with the forms of action and intimidation practised by the particular groups with whose activities the Bill is designed to deal. So far as I am concerned the whole of the definition is important and I cannot agree to any part of it being excised.

Would the Minister not agree that, as drafted, the words I seek to have deleted in effect constitute a definition of the offence of conspiracy? They are quite unnecessary because if the substantive offence of forcible entry is to be committed it follows that conspiracy to commit it is an offence also. This follows from the laws that exist and it is unnecessary to expand the definition of the word "forcibly" to show conspiracy.

There is a great deal of this Bill which re-states existing law in an up-to-date way. It re-states in a specific way so that none of these people or groups with whom I am concerned can claim that they did not understand the position or complain that they are being prosecuted under ancient statutes.

The Minister's first statement relied on the terminology in ancient statutes for justifying the definition as framed but the statute of Richard II merely sets out that entry by force is illegal. What it had in mind was forcible entry by a landlord. I cannot see that persons against whom this Bill is aimed would be in any doubt regarding the meaning of "forcibly". It has been defined judically time and again. It is a bad principle to bring into the definition section of an Act words which in effect create the offence of conspiracy. It is out of place there.

The 1381 Act to which I referred is the fifth of Richard II. That Act has nothing to do with landlords. It applies to entry on freehold land.

It is well known that it was aimed at landlords.

It was not aimed at landlords. If the Deputy would read the Act he will see that it is aimed at entry by anyone on freehold land.

I have read the Act. However, the evil it sought to correct was entry by landlords. If the Minister knows the history of the time he will realise this.

What they did was to prohibit forcible entry on freehold land.

That is correct. The Summary Jurisdiction Act does not define "forcibly" in this way either. Conspiracy is a separate offence.

The amendment put down by Deputy Cooney is a brave attempt to show up the fundamental inconsistency and sheer stupidity of section 1. No matter how the Minister may attempt to draft section 1, no matter how he may attempt to define what may or may not be calculated to constitute forcible entry or what may or may not be construed by him to mean forcible entry, it cannot conceal the fundamental inconsistency of this basic piece of legislation. So bereft is the Minister in his attempt to convince the House of the need for this legislation that he resorts to definitions at the beginning of section 1. This is an approach which forces one to suspect its true intent. I submit to the Minister that section 1——

The Deputy will appreciate that we are dealing with amendment No. 1 at the moment. Section 1 will be dealt with when we have dealt with the amendments.

It is impossible to deal with the amendments without dealing with the section——

That would be a duplication of the debate on the section afterwards.

The amendment seeks to delete all words after "and" which means in effect that from line 13 to line 25 we are doing a pretty massive piece of excision.

If the Deputy read the amendment he might mislead himself less as well as misleading the House less.

The amendment provides:

In page 2, subsection (1), to delete all words from and including "and" in line 13 to the end of paragraph.

Deputy Cooney's amendment is a very brave but rather futile effort I suspect, with respect to Deputy Cooney, to remove the confused intention of the Minister from this section. The Minister should take a long hard look at it. In terms of the Constitution it is a lawyer's paradise. It is a senior counsel's bonanza in terms of future legal cases. I suggest that the Minister would be better off to withdraw the section and the Bill rather than to introduce a defence against an amendment which, with respect to Deputy Cooney, is designed for debating purposes. We in the Labour Party have not put down an amendment because we find the whole section and, indeed, the amendment rather repugnant.

The Deputy is now going beyond the scope of the amendment.

I should like to draw the attention of the Minister to an extract fromThe Garda Síochána Guide, the fourth edition, page 323. The Minister knows that this book is issued for the guidance of ordinary rank and file members of the Garda in the carrying out of their duties. The paragraph I propose to read is headed “Forcible Entry and Detainer.” It sets out to instruct ordinary rank and file members of the Garda in what constitutes “forcible”. As I said in my opening remarks, there is no need to have this word defined at all because its ordinary meaning is quite clear and unambiguous, and it has been well defined judicially. The Garda Síochána Guide says that everyone commits the misdemeanour called forcible entry “who, in order to take possession thereof, enters upon any lands or tenements in a violent manner, whether such violence consists in actual force applied to any other person, or in threats, or in breaking open any house, or in collecting together an unusual number of persons for the purpose of making such entry. It is immaterial whether the person making such an entry had or had not a right to enter, provided that a person who enters upon land or tenements of his own, but which are in the custody of his servant or bailiff, does not commit the offence of forcible entry”.

It is quite clear from that that it is already well settled that "forcibly" is as defined by the opening words of the definition, and does not mean the words to which my amendment takes exception. It would be interesting also if I were to read for the Minister and the House the direction which up to now has been the standard direction to members of the Garda in matters of this nature. It is by way of a footnote to that paragraph and it states:

The Attorney General has stated his view that the evidence to substantiate charges of forcible entry and forcible detention must show such a force as constitutes a public breach of the peace, or such proceedings as constitute unlawful assembly.

That direction immediately raises a question here with regard to the definition in this Bill as to whether "forcibly" is to be construed in accordance with the direction of the Attorney General or to get a more narrow construction in the sense of its ordinary meaning. The author goes on to say—and again he is quoting the Attorney General's opinion; obviously a direction or an opinion was sought from the Attorney General on some particular problem:

He has also pointed out, for future guidance, that in the Attorney General's Office the line has been taken for many years that the charge of forcible entry ought not, generally speaking, be used as a means of assisting in the enforcement of a civil right to possession of property.

Will the Deputy give the page and the title of the book?

It is the same book, the fourth edition ofThe Garda Síochána Guide, page 323. That quotation is of immense significance when we consider the tenor of this definition and the Bill of which it stands a part. The line of the Attorney General's Office has been for many years “that the charge of forcible entry ought not, generally speaking, be used as a means of assisting in the enforcement of a civil right to possession of property”. Yet here we have a Bill flying straight in the face of that perfectly sound and respectable and commendable legal principle as laid down by the Attorney General's Office. The author goes on to say:

Where a doubt exists as to whether police action should be taken in any particular case, proceedings should not be initiated by the Garda Síochána without prior consultation with the local State Solicitor, who may decide to seek a direction from the Attorney General.

Interference by the Garda in what are essentially matters of civil law were regarded as so serious by the Attorney General that it was felt necessary to have a direction in the Garda Guide warning the Garda against interfering in a civil matter without at least consulting a State Solicitor, and more probably the Attorney General himself. This goes to the very root of our legal system. It goes to the very existence of the rule of law on which our entire system depends. It shows the regard of the Attorney General for that principle that it was introduced into the Garda Guide by way of warning, and yet we have this piece of legislation with this definition flying in the face of it.

I wonder how inconsistent somebody can become, because we have Deputy Cooney now making the case that this is something new, something flying in the face of everything that went before. Five or ten minutes ago he was pointing out to the House that the definition which he wants to take out of the section is in fact a restatement of the law. He cannot have it both ways.

The Minister is misinterpreting me. What I want taken out has never been in.

It is very significant that he quoted the Attorney General's direction about the non-user or the sparse user of the existing legislation, and the fact that it should not be used as a means of assisting the enforcement of a civil right. That is the very point I made right through both my speeches on Second Reading. It was funny to see this sudden turn around on the point now. The fact of the matter is that the entire definition re-states in a concise statutory form the gist of the existing law in so far as it is stated in the first paragraph on page 323 of the Garda Guide. Of course this is not a very authoritative legal textbook by any manner or means. It is an attempt by the learned author——

That is unfair to the learned author.

——and no doubt a fairly successful attempt, to state in a concise and understandable way for non-lawyers the gist of the Common Law on this point. It is made perfectly clear and perfectly simple in this definition. It is much more satisfactory. I have heard Deputies on all sides of the House say with regard to legal Bills that definitions of things like this should be modern and up-to-date and should be in statutes where they can be ascertained precisely by people who want to know what the law is on a particular matter.

It is amusing to hear the Minister talking about a book for non-lawyers. My recollection of this Garda Guide is that the opening pages are numbered off and everyone who wanted to defend people in the criminal courts tried to get a copy of it by hook or by crook. So far as I know it was not for sale and I do not know if it is for sale now. The Minister says this is just a handy book of no significance. The fact is that it is the old RIC guide brought up to date. To the best of my knowledge it was first produced more than a hundred years ago. It is an excellent guide for any person who is interested in ascertaining what the Common Law is.

Deputy Cooney's amendment has a great deal to recommend it. Take the word "forcible" itself in the title— and I shall have more to say on this when we come to the Title of the Bill. That should be "Prohibition of Illegal Entry" if we are to be realistic. Despite the word "forcible" in the Title, if this Bill becomes law, cases will be brought before the courts where there is no question of forcible entry at all. I ask a simple question: will a person be guilty of an offence under this Bill if he finds a door open, goes in and occupies a house or an apartment? We in this party object to every part of this Bill and will have nothing to do with it, but I do agree with Deputy Cooney's approach, and I think the Minister's offhand approach about this handbook for the guidance of members of the Garda Síochána——

I agree with what is in it. That is one of the points I was making.

Thanks for telling us. That is why Deputy Cooney read it out because he agreed——

I was pointing out that Deputy Cooney was agreeing with it, which was 100 per cent different from what he was saying originally.

The Minister was attempting to be smart—and he is not good at that—by pointing out that Deputy Cooney, within a few minutes, was inconsistent. Not at all. Deputy Cooney was not inconsistent.

Seeing that we are at the beginning of the Committee Stage of this Bill I would suggest to the Miniter that Deputy Cooney's amendment is not only fair and practical but elementary common sense. I defy the Minister for Justice to give me a definition of the term contained in section 1 which would be deleted if Deputy Cooney's amendment were accepted, namely, "participation in action". That is a useful piece of legalism. I can say to Johnny Murphy: "I think that because you are standing in that doorway you are participating in action that will ultimately constitute a threat"—not of forcible entry because that does not enter into the section—"to use force." This is the kind of semantics dear to the heart of those who would love to have a piece of legislation to hammer the civil rights of everybody in this country simply because a few Sinn Féin people, a couple of housing action people, got on the Minister's nerves. That is the kind of nonsense that is in this Bill.

Take another section here, which, with due deference to the Chair, is the one which should be deleted by the amendment, so I am quite in order in talking on it. It says here: "... for the purpose of participation in action or conduct with others". There is a nice piece of parliamentary gobbledegook. Could the Minister give us a simple Webster Dictionary definition of "conduct with others"? If Deputy Pattison and I decide to go to the toilet together are we indulging in infamous conduct or are we indulging in infamous conduct together if we decide to walk out and put our shoulders against a door and go into a house? That kind of thing brings parliamentary draftsmanship and the Fianna Fáil Party, the party renowned as the party of reality, into disrepute. Take the other section which would be deleted by Deputy Cooney's amendment: "... conduct with others in numbers". If a husband and wife in bed together decide to have a bit of forcible entry against the approaches of the Minister——

I hope——

I mean it entirely in its property sense. I would suggest to the Minister that that use of words is again absurd.

I think the Bill uses the words a little more accurately and circumspectly than the Deputy does.

I am talking about the words——

I had not that type of forcible entry in mind at all.

Take the title of the Bill.

I had not that in mind, what happens in beds or toilets, which seem to be the two matters most affecting the Deputy.

I regret——

I am sure he does.

I will read the entire section and I am sure the Minister will see that it can be reduced to absurdity.

It is the Deputy who has reduced it; toilets and beds.

It goes on to say: "... conduct with others in numbers or circumstances calculated to prevent by intimidation ...".

Come back to the beds and the toilets. The Deputy knows more about them.

Could the Minister, in all seriousness, give me a definition whereby I would be participating in action or conduct calculated to prevent by intimidation? There is a beautiful piece of draftsmanship. It baffles the imagination. I have not the slightest fear for the redundancy of barristers or solicitors because they have a magnificent source of constitutional litigation for decades to come. It will be worth a fortune to anybody who takes up the legal profession. All that the section boils down to is not forcible entry but a threat to use force. This is not a definition of forcible entry.

May I suggest to the Minister he had good grounds for inserting in line 16 an exclamation mark, after the word "forcible", when he concludes with the words "and `forcible' shall be construed accordingly"? This Bill is hardly worth the paper on which it is written because it is so absurd. It is important to point out here that only ten minutes ago the Minister said that Part I will bring about a concise statutory form. All I can say in relation to that phrase is that Limerick people are lacking in conciseness. I had always thought that people from the south of Ireland and particularly those from Limerick were noted for saying what they wished to say and for saying it precisely and not to hedge about in that kind of spurious parliamentary draftsmanship which shows up the impossibility, under the written Constitution of this country, of trying to devise a piece of legislation which would take into account all the circumstances and which, in effect, would cover the kind of issues that the Minister has in mind. Therefore, I suggest to the Minister that we are not in the least bit interested in what he thinks the Bill is all about. All we are interested in is what is in the Bill and, to be polite, in relation to section 1 all that is in this is rubbish. Deputy Cooney's amendment is one which should save the Minister from some embarrassment not only now but in relation to the remaining Stages.

I just want to point out to the Minister the objection I mentioned when I first spoke. The words I seek to delete create, in effect, the offence of conspiracy. I quote from page 1100 of the 21st edition of Archibold:

A conspiracy is an agreement between two or more persons:—1. Wrongly to injure or prejudice a third person or any body of men in any other manner. 2. To commit any offence punishable by law. 3. To do any act with intent to prevent the course of justice.

That is his definition of conspiracy. As drafted, the definition of the word "forcible" sets out clearly the offence of conspiracy and is completely out of place as part of the definition.

Amendment, by leave, withdrawn.
Amendment No. 2 not moved.

(Cavan): I move amendment No. 3:

In page 2, subsection (1), line 27, to delete the words "any person having an estate or interest in land".

I understand that the purpose of this Bill was to protect the interests of people entitled to immediate occupation of land and on that basis I was prepared and am prepared to accept it subject to amendments which are necessary to remove certain objectionable sections. However, I repeat that I thought the sole purpose of the Bill was to protect the man who was entitled to the ownership of property at a given time but I see here a definition of ownership which reads as follows:

"owner", in relation to land, includes the lawful occupier,

I agree with that but the next part I disagree with entirely——

I have no wish to interrupt the Deputy but I think that amendments Nos. 3, 4 and 5 could be taken together because they are all on the same point and, I think, my amendment goes a good way towards covering the other two amendments.

(Cavan): I think they are different.

Amendment No. 3 is different from the other two.

Amendments Nos. 4 and 5 are similar but if the House wishes to discuss amendments Nos. 3, 4 and 5 together——

(Cavan): As I see it, mine is totally different.

Yes; sorry.

(Cavan): We have a definition of ownership. For the purposes of this Bill, “owner” is defined as “any person having an estate or interest in land”. Section 2 goes on to say that a person who does anything that is prohibited by section 2 shall not be guilty of an offence if he is an owner within the definition contained in section 1. The definition of “owner” as “any person having an estate or an interest in land” means that this section, for the purposes of ownership, regards an owner as a person who is not entitled to go into land and who may never be entitled to occupy land. It defines a person who may be a fee farm grantor. In many cases in this country fee farm grants were granted in 1750, in 1760 and in the 1800's. Those fee farm grants go on forever. In many cases they are subject to normal rent and they confer on the grantee the right forever to ownership, but here we are saying that a fee farm grantor, who may not even be resident in this country, can come back here and forcibly enter land on which a house has been built and on which thousands of pounds have been spent. Under this Act there will be no protection for the grantee. In effect, we are saying that the grantor may come back and use any threats or force that he may think fit. He may go in there and squat but the grantee will not be empowered to put him out.

The same goes for a landlord who grants a lease for 99 years or, for that matter, for 21 years. He will not be entitled to occupation of the land save in accordance with such rights as may be reserved in the lease as long as the terms of the lease are observed. Under this measure a perfectly law abiding lessee who observes every clause in the lease may find himself in a situation in which a landlord, whether it be in the case of a very long lease or a very short one, forcing his way into the premises will not be covered by the definition in section 2 and will be deemed not to have committed any offence. If it was an offence for those people who went into the Hume Street houses, as I believe it should have been, it certainly should equally be an offence for some landlord who may be hundreds of years removed from the right to occupation of land to go there and squat. Under section 2 he should be guilty of an offence in the same way as anybody else.

The amendment I propose merely protects the person who has a right to ownership at any given time and prohibits a fee farm grantor or a lessor from descending on his lawful tenant or grantee and using force to enter the premises. Such a person should be as guilty of an offence as would any stranger who might come in and commit the offence of forcible entry. I hope I have made myself clear because I have strong views on this point.

I should like to support generally the views of Deputy Fitzpatrick. The effect of his amendment must be considered in relation to that part which says "and, in relation to land or a vehicle, any person acting on behalf of the owner". The phrase "any person acting on behalf of the owner" is so ridiculously broad that the Minister has no defence. I find it impossible to believe that any responsible Minister for Justice would bring in a clause in a Bill, in relation to property rights and so on, which says "any person acting on behalf of the owner". Suppose a particular security firm is designated to act on behalf of the owner——

Are we not on amendment No. 3, Sir?

I find it difficult to take amendment No. 3 without relating it to amendment No. 2. It was not our fault that the Bill was so miserably drafted. Such rubbish——

The Deputy seems to be under the misapprehension that I was responsible for drafting the Bill. The Bill, as all Government Bills are, was drafted by the extremely able and learned staff——

Now, now, do not hide behind the staff——

You are the man.

I accepted their draft and I think they drafted it very well.

You are the Minister for Justice,pro tem.

Without in any way trying to pre-empt amendment No. 3 I do point out in relation to amendment No. 2 that one must also take it in relation to the title referred to by Deputy Fitzpatrick, that one must take into account the integral part of the provision, on line 28, "any person acting on behalf of the owner". I challenge the Minister to define what he meant by that. Am I to believe that if an elder son of a property owner, after having a few drinks with his father, decides that he is now going to act on behalf of the father and says to the tenant "Out you go, I am acting on behalf of the owner" or if a security firm is appointed—we had an example of that in Hume Street—or if a caretaker suddenly becomes high and mighty acting on behalf of the owner——

On a point of order——

Deputy Fitzpatrick's amendment is dealing with specific words.

Yes, to delete the words "any person having an estate or interest in land". The Minister has gone further by including the term "any person acting on behalf of the owner" but if the Leas-Cheann Comhairle wishes I will reserve my criticism until later. One is almost ashamed, as a Member of Parliament, having to speak on such rubbish and having to expose such sheer stupidity.

We are grateful to Deputy Desmond for pointing out to us the danger, in view, under the Bill, of husbands and wives committing offences in bed, and I am happy to assure him that there is no possibility of that. Similarly, his trip to the toilet with Deputy Pattison equally would not come under the Bill, no matter what happened there. However, unlike Deputy Desmond I should like to speak to Deputy Fitzpatrick's amendment. I regret I cannot accept it for these reasons. Sections 2 and 3 provide that a person who forcibly enters or occupies land shall be guilty of an offence unless,inter alia, he is the owner. As I explained on the Second Stage the words “any person having an estate or interest in land” were included in the definition of “owner” to ensure that the Bill will not apply—and I emphasise “not apply”—to incidents that arise in the course of private disputes between persons having different interests in the same land, for example, between landlord and tenant or between mortgager or mortgagee. These are matters that should properly continue to be regulated by existing civil property law and I am perfectly satisfied that that will be the position as far as this Bill is concerned.

Deputy Fitzpatrick expressed concern that under the Bill as drafted a head landlord or a fee farm grantor who had no right or entitlement under any circumstances, unless his rent was not paid, or the terms of the grant were broken, could enter the land with impunity. The answer to that criticism is of course that a tenant or grantee has ample remedy under existing civil law if the head landlord or grantor behaves in that way and those remedies are not affected by this Bill.

Criminal law for one and civil law for the other.

Deputy O'Higgins and one or two other Deputies were concerned on the Second Stage lest an overholding tenant might leave himself open to prosecution for an offence under section 3 by remaining on after his tenancy had expired. While I am not convinced that such a tenant would not have had an interest in the property within the meaning of the phrase "estate or interest" it is only reasonable to put the matter beyond doubt and the first of the amendments which I have tabled is designed to do this.

(Cavan): We are only dealing with amendment No. 3.

Yes, amendment No. 3.

Deputy FitzGerald alleged on the Second Stage that the Bill supported landlords against tenants in a way which was not done "even in the most extreme periods of British oppression". That is at column 134, volume 251, of the Official Report. Nothing in fact could be further from the truth. As I said, this Bill by defining "owner" as including any person having an estate or interest in land effectively exempts both landlords and tenants from the scope of the offences created by sections 2 and 3. Accordingly, there is absolutely no basis for the suggestion that the Bill interferes in any way as between landlord or tenant or that it supports one such party against the other. This is not a Landlord and Tenant Bill but a Bill to deal with the forcible entry on property by persons who have no right of any kind to that property. To listen to Deputy FitzGerald one would imagine that he was disregarding completely the substantial body of law which regulates landlord and tenant relationships and which provides——

(Cavan): On a point of order, may I say that this is an extraordinary way to deal with my amendment? The Minister is obviously quoting from some document that was prepared months ago and which is a reply to a Second Reading speech——

Hear, hear.

(Cavan): whereas I have——

On this point.

(Cavan):——put down a specific amendment and I have made a specific point and the Minister has come forearmed to deal with something that is not here at all.

It is completely irrelevant.

The code to which the Minister is referring is the civil code and not the criminal code.

(Interruptions.)

Many Deputies, both on the Second Stage and this evening, made the point that the Bill tends to or is intended to support, they allege, landlord as against tenant——

Of course it does.

——or grantors, under fee farm grants, or the representatives of grantors, and I am endeavouring as best I can to demonstrate that this is not so. By virtue of the words included in it which I wish to retain and which Deputy Fitzpatrick seeks to delete, it is sought to ensure that the Bill could not be used in any dispute as between a fee farm grantor and a fee farm grantee.

If the words were deleted, my understanding of it is that one or other of the parties could seek to have the owner prosecuted; similarly as between mortgagor and mortgagee. If the words are retained, the fee farm grantor or the mortgagee would not commit a criminal offence under the Bill and he would be left to seek his remedy, or the two parties would be left to seek their remedy, in the ordinary way in the civil court under the civil law. That is what I seek to retain.

(Cavan): The Minister is putting the criminal landlord in a much superior position to the ordinary criminal. That is what he is doing.

If the Deputy feels I am doing that, he should wait until we come to amendment No. 8 which adds a subsection saying that nothing in this Act shall be regarded as conferring on any person any right to entry or occupation of land which did not exist immediately before the commencement of this Act. In other words, nobody from that point of view is any better off. That puts it beyond any doubt.

(Cavan): My concern here is that under the Bill as drafted the grantor or the landlord will be able to bulldoze his way into land which another person is entitled to occupy and he will not be guilty of the criminal offence that others entering would be guilty of. In reply to me the Minister says the tenant has his civil remedy. So has the landlord, but the Minister here is conferring a summary right on the landlord to go in and escape subsection (2). Surely the Minister is aware that the very considerable body of opinion in this country opposing this Bill tooth and nail—I do not go all the way with them; I want to make that clear—are opposing it on the grounds that there are existing civil rights to deal with the position.

Hear, hear.

(Cavan): That is the argument being put up by agitators up and down the country and that is the argument the Minister is using here against my amendment. He cannot have it both ways. A landlord or a grantor is not entitled to be put in any better position than any other person who is not entitled to immediate occupation of this land. The Minister is doing that by saying that, while John Jones who is living under canvas down the road will be guilty of a criminal offence subject to fines and imprisonment if he goes into a house, a landlord who may come from the Isle of Wight and equally unlawfully and without any authority bulldozes his way into that house will not be guilty of an offence. If I am thinking clearly, that is precisely the effect of this Bill. I am more with the Minister on this Bill than a good many people are because I believe a man is entitled to the occupation of his private property. That is why I put forward this amendment, to make sure that he will be entitled to the occupation of his private property against all and sundry, including his landlord or his grantor who is not entitled to possession so long as he observes the law and the terms of his lease or grant.

If the Minister is satisfied to leave the tenant with the civil right against the landlord who invades him, why not leave the landlord with the same civil right? I defy contradiction when I say this will put the landlord in a preferential position and give him the right to act in a way that would be unlawful for any other person. It will give the landlord a right to by-pass the courts and use illegal methods to get possession of his land if he wants to take it. We are concerned not with what may happen, as Deputy Desmond has said, but with what we are doing in this measure. I persist in my objection to this particular definition; I think it is unnecessary.

The Minister said that this would not apply to the landlord and tenant but I am thinking of cases of Dublin Corporation tenants. Where the tenant dies the family feel they have a right to the house but they are not covered by this and will be treated as squatters under this Bill. This will be very dangerous. The matter could not be contested but they would feel they had a right to the house. Secondly, the Minister said the tenant can bring a civil action against the landlord. Could he do that after going to prison? I should like the Minister to answer those questions.

It is unfortunate that the very reason why I feel these words should stay are the reasons why Deputy Fitzpatrick thinks they should go out. Obviously, we are both trying to achieve the same objective. If we take them out we leave it open to one party or the other to make use of a criminal statute to solve his civil dispute and by leaving them in and by excluding any activities as between landlord and tenant from the criminal law under this Bill at least we are ensuring that the Bill is not used, as I do not want it to be used or as Deputy Fitzpatrick or anybody else does not want it to be used, to enforce civil rights as between one party and another.

We are in the difficulty that the words were deliberately put in to exclude disputes between landlord and tenant or between grantor and grantee. Deputy Fitzpatrick's point, as I understand it, is that because they are excluded therefore the grantor will do things which would otherwise be a crime if he were not a grantor under the Bill. I do not see any possibility of that and the grantee, of course, has ample rights if any improper entry was made on the grantee's land. I see the point Deputy Fitzpatrick is making and I suppose there is a very remote academic possibility that some fee farm grantor might decide: "I will not commit a crime by going into this property but I will commit a tort and I will be subject to the ordinary action" but I do not see the fact that he does not commit a crime would in any way encourage him to do it. He might allege that he is not committing a crime at the moment in going in and the fact that he then would not commit one would not, I think, have any effect on him.

(Cavan): The Minister complains that if we take out these words we would be using a criminal statute to enforce civil rights. I do not agree with that. If we take out these words we are doing no more than using a criminal statute to preserve the status quo. If we leave in these words we are saying to the landlord or the grantor: “You may use forcible entry, you may short-circuit the civil law, you may short-circuit the courts and we shall see to it that you are not guilty of a criminal offence.” That is a fair and accurate summary of what we are doing. If we leave out these words we are then going to see to it that if the landlord wants to enforce his rights he will do it through the courts; if he takes the law into his own hands he will do it at his own peril and if the tenant wants to enforce his rights he will have to do likewise. I take it that is not an unreasonable proposition.

When one analyses this one finds it is a strange measure in some respects, because it is going to prevent all squatting and all forcible entry; and I am in favour of that within certain limits. It goes on to strengthen the hands of the landlord unnecessarily so, and that is what I object to. This is where the whole measure will fall into disrepute and that is where the people who oppose it, if they analyse it closely, will find further ammunition for their argument against it.

I gather that the Minister is not altogether comfortable with this. He says that he and I want to do the same thing. All I want to do is to make sure that the citizen who is exercising lawful rights in respect of the occupation of property will have those rights preserved as against everybody in the world, including the unlawful landlord. I do not think that is an unreasonable proposition. If the Minister considers it he will come to the conclusion that if a landlord has some reason for going into a property he has the law there at his disposal—he has the civil courts and he should avail of them. Most landlords are people of property, people of means. The Minister wants to say that the landlord can break the law if he likes, take possession unlawfully of the property and the onus is put on the tenant to get him out. The tenant may be a man of humble means and there is no legal aid in this country. The onus has been shifted around in favour of the landlord against the tenant and I do not think this is the kind of legislation that should be taken at the present time.

I appeal to the Minister to examine his conscience in this regard. About half an hour ago he did make the rather interesting revelation that he was not entirely responsible for the legislation which the parliamentary draftsman handed him.

On the contrary, I am absolutely responsible for it. When the Deputy was trying to get out of his difficulties in the bed he started to make highly uncomplimentary remarks about the drafting of it.

(Cavan): The Minister has had a tough day today.

The Minister has had a tough day today. He split the party down the middle on the Unemployment Assistance Order and there was all hell to pay at 12 o'clock, but I am afraid we have got to come back to the so-called prohibition of forcible entry. I am sure Deputy Fitzpatrick will agree it is ironic that legislation which comes before Parliament very often sets out to do the reverse of what is intended and this in practice is what is being done here. Bearing in mind the history of litigation in relation to property and the rather questionable manner in which property inheritance evolved in this country as between family and family and estate and estate anybody can claim, certainly for the purpose of holding up proceedings, that they come magnificently under the phrase used by the Minister: "any person having an estate or interest in land".

In his opening remarks the Minister spoke about "concise statutory intent" and certainly anybody wanting to tie himself up in knots in terms of intent can do so under this section. The Minister said he was not anxious to have it open to one party or another to avail of criminal proceedings and he spoke about a remote academic possibility that this could occur. He knows perfectly well that we are not interested in a High Court interpretation of what was in the Minister's mind in regard to this Bill. All we are interested in is what is contained in the Bill as drafted. We suggest that what is in the Bill is going to lead to eternal confusion and disservice in relation to property legislation.

Members of the Labour Party who oppose this Bill are automatically told by the Minister that they favour squatting, forcible entry and the abuse of property rights, but the Minister knows perfectly well this is not the policy of the Labour Party.

Why do you not act accordingly?

It is not the policy of the Labour Party to make a situation which at the moment might in some relatively minor respects be difficult. I do not see any reason why the Minister should refuse to accept this amendment simply because a few hundred people decided to have some fish-ins on agricultural property or to take over a castle in the dead of night and amuse themselves there for a couple of hours until they were, correctly and properly, removed by the Garda Síochána, or because they questioned the rather questionable rights of the ancient lords of Ireland to the property or the estate which they deemed themselves to hold because of some historical obligation. This all boils down to the Minister, having looked at the situation and having been rather dubious about his entitlement, saying to the parliamentary draftsman, "Bring up something fast; the party does not give a curse". There is not even a backbencher behind the Minister to show an interest in this vital piece of legislation.

Deputy Fitzpatrick has quite rightly put forward an amendment suggesting the deletion of the words "any person having an estate or interest in land." My parents come from rural Ireland. They would not have to go beyond half a mile of Millstreet in north Cork to find many a person who would maintain that he has more than a particular involvement in an estate or land and he would have a bit of paradise under this section of the Bill. The Minister should, without further embarrassment to himself, withdraw the section, have a good night's sleep on it and consult with the Taoiseach. He does not even know what is going on these days, and I very much doubt even with his legal training, admittedly it was not practised very much——

I take it, Sir, we are still on amendment No. 3?

I suggest the Minister should consult with the Taoiseach and bring this measure back to the party. They have enough trouble on their hands at the moment without being accused of passing unconstitutional and irrelevant legislation. That was demonstrated quite clearly in the first hour of this debate. This is ridiculous legislation.

(Cavan): Sometimes when we use words here like “fee farm grantors” and “fee farm grantees” we take it for granted that everybody understands what these phrases mean. I would like to spell out that to which I am objecting here. Away back hundreds of years ago fee farm grants were given, granting the land to the grantees in perpetuity. They were usually small pieces of land, the site for a house or a number of houses. The landlord, or grantor, never built any of the houses usually. The grantee spent, maybe, thousands of pounds building or rebuilding a house on this bit of land from the grantor. What the Minister is saying here is that this man who made a grant of these few perches, this quarter of an acre, or half acre, away back hundreds of years ago will now be entitled as far as the criminal law is concerned——

Not entitled.

(Cavan): As far as the criminal law is concerned.

(Cavan): He will be.

He will not be guilty of a crime.

(Cavan): I said entitled so far as the criminal law is concerned and I mean by that that he will not be violating the criminal law. If the man who gave a grant of this small bit of land goes back and squats in the house built at a cost of thousands of pounds the criminal law will not lift a finger. If, however, the homeless or the helpless man, who thinks he has a grievance and that society owes him a house, goes into that house, Big Brother, the State, will come in and clap him into jail. All I want is equality for all people who take possession of house property or land to which they are not entitled. I do not think that is unreasonable. I persist in my point.

I wonder if Deputy Fitzpatrick ever heard of a fee farm grantor ever doing this?

(Cavan): That is what we get from these benches. Deputy Haughey used to be at this.

I want to be as fair as I possibly can to Deputy Fitzpatrick. While he is not, in fact, correct and while his amendment would give rise to serious alternative difficulty, I want to try to meet him as best I can because, unlike Deputy Desmond, I feel he is sincere. Deputy Desmond is in only to make a laugh out of the thing. If Deputy Fitzpatrick will withdraw his amendment, perhaps between now and the Report Stage either he or I will be able to think of a way to cover the point he is making without, at the same time, throwing the facilities of the Bill open to parties for the solution of their civil disputes. I am certainly prepared to consider how that can be done. Deputy Fitzpatrick may be able to come up with a solution. The amendment does not provide the solution because it goes too far; it allows the Bill to be used for the adjudication of civil disputes. That is something I do not want to do. If I can think of some way of doing it which will not be open to that objection we may be able to find agreement on the point on the Report Stage.

(Cavan): I am satisfied the Minister sees the point I am making and I am satisfied he sees some substance in it. I believe my amendment is the way of dealing with the matter, but I welcome the Minister's approach. As regards my drafting an amendment, I regret I have not all the expertise behind me that the Minister has for solving these problems or drafting amendments.

I am glad the expertise is acknowledged and I, too, would like to take this opportunity of acknowledging it.

(Cavan): I am prepared to withdraw the amendment on the Minister's assurance that he will look into it. I will look into it too and we will have another discussion on the Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 5 is similar to amendment No. 4. Both can be discussed together.

I move amendment No. 4:

In page 2, line 27, after "interest in land" to insert "(including a person who remains in occupation of land after the determination of his tenancy therein), the owner of the servient tenement (in relation to an easement or profità prendre), the owner of an easement or profit à prendre (in relation to the servient tenement)”.

The opening words which appear in brackets are designed to make clear that the phrase "interest in land", where it appears in the definition of "owner", will include an overholding tenant. Some Deputies were concerned lest, by remaining on after his tenancy had in fact expired, such a person might leave himself open to prosecution under section 3 of the Bill. While I am far from convinced that such a tenant would not have an interest in land within the meaning of the phrase "estate or interest", I am satisfied to put the matter beyond doubt as provided for in the first part of the amendment.

The second part of the amendment reproduces in a form that is acceptable to the parliamentary draftsman the substance of what Deputy Cooney is, I believe seeking to achieve in his amendment, No. 5. The idea of extending the definition of owner to include the owner of a servient tenement is acceptable but I think that logically the definition should also cover the owner of an easement or profità prendre. This would ensure that neither the grantor nor the grantee of these incorporeal rights would run the risk of committing offences under section 2 or section 3 in relation to each other's interests. As I have emphasised, it was not intended that the Bill should apply to any incidents which may arise in the course of private disputes arising between persons having different interest in or over the same land.

I trust that the Deputy will have no difficulty in accepting the official amendment in lieu of the one tabled by him.

There are two legs. The first deals with the permissible occupant; the Minister describes him as the overholding tenant. The purpose of my amendment is to ensure that the person genuinely, but wrongly, in possession will not be subject to the sanctions of the Bill. I widened the definition of owner to include the permissive occupier. The Minister's overholding tenant could also be classed as a permissive occupier, but that narrows the categories of permissive occupier. I have in mind the type of person who might be a caretaker or a herdsman. He would not be overholding on the termination of the contractual tenancy; he would be thereab initio by permission. To terminate status all that would be necessary is a simple and informal demand for possession and the protection which permissive occupancy gives is then removed. He has no interest in the land and he will be completely at the mercy of the Bill. Consequently, it is impossible to confine the exemption to a person remaining on as an overholding tenant on the expiration of a notice to quit. The spirit of the Minister's amendment, like my amendment, is to meet what I have in mind—to cover innocent persons in possession after permissive occupancy has been ended. Perhaps the Minister would deal with that before we get on to subservient and dominant tenants.

A person such as a permissive occupant should not, to the extent that his entry or occupation is covered by the permission which was granted to him, be liable to find himself in a position in which he might be guilty of an offence. It was never intended and I am quite satisfied that the Bill as drafted would not have that effect. In relation to the definition of "owner" a person acting on behalf of the owner would presumably come within that definition of "permissive occupant" in any event.

What I have in mind is the situation of a caretaker or perhaps a person minding a gate lodge. There was indeed an example in Laois/ Offaly only a short time ago in which we had the public spectacle of the bailiff with the battering ram where a person was in occupation of a gate lodge by permission and that permission was revoked. That person then refused to leave and actually bolted the door against the bailiff. The Minister said that he did not think the Bill as drafted would have the effect of bringing in a "permissive occupant". I think it would because as drafted "owner" at its vaguest means a person with an estate or an interest in land. Once a demand for possession is served on a permissive occupant, and it need only be an informal demand, his permission is withdrawn and he then technically has no interest in the premises. Consequently if that permissive occupant, who might have been there for many years in his own right and who might have succeeded generations of predecessors in the permissive occupancy of the premises, could find himself after maybe 50 or 60 years family occupation, in a position where he would have to bolt the door against the owner. He would find himself then committing an offence. I think that would be wrong. This is percisely what happened at Tullamore some weeks ago where the person in occupation of a gate lodge did not get out when requested to do so by the landlord and bolted the door against the landlord. If this Bill were in operation that person would be committing a criminal offence because he would have no interest in land. He would not be an overholding tenant because his tenancy was not founded on contract, it was founded on permission. That is why I think that to have the saver limited to overholding tenants is to narrow it too much and I think the Minister is not doing himself justice.

I think if Deputy Cooney looks at my next amendment it is relevant to this. Amendment No. 6 reads:

In page 2, to delete lines 38 and 39 and substitute:

(3) Nothing in this Act shall apply to an entry or an occupation of land or a vehicle in the exercise of lawful authority or with the permission of the owner.

I think this would cover this point. One of the difficulties is that under section 2 an offence is not committed by an owner but the definition of "owner" is so wide that it would include someone who is, in fact, a permissive occupant.

With respect, so long as he continues to be a permissive occupant, but if his permission is withdrawn, he then does not come within the definition of "owner".

But if the permission is withdrawn the Deputy will agree with me that, equitably, he is in a less strong position than an overholding tenant. I think it is valid to draw a distinction between a former permissive occupant and an overholding tenant. An overholding tenant may still have an equitable estate to some extent. A former permissive occupant has none whatever.

He has not. As I see it it could be a serious injustice to such a person whose family might have been permissive occupants for many generations that as soon as permission is withdrawn he is subject to the full sanctions of this Bill. I think he should not be put in this position. I think he should be left with the civil law like the grantor and the grantee.

The Minister used a phrase which I am sure is inappropriate.

I take the point Deputy Cooney is making but I am afraid his amendment as it stands would be unlikely to cover that point anyway.

I concede that "where permission has been revoked" would have to be added to it.

If the Deputy would accept amendment No. 4 and withdraw No. 5 we could think out the question of a permissive occupant again. There is no question of his being put out if he is still a permissive occupant. He is in possession and he is lawfully there. It is only if the permission has been withdrawn.

I could see a case of serious hardship where permission would be withdrawn and the person from whom it was withdrawn would then be subject to the sanctions of this Bill. I do not think that is intended because that would be essentially a civil matter. The whole thing should be, anyway.

I think the Deputy agrees that his amendment as it stands would not cover the point anyway and I think the best thing would be if we thought about the question of permissive occupants again.

May I make a suggestion? It seems to me that where a permissive occupant or a tenant is overstaying by reason of a notice to quit the legal situation when permission is withdrawn or notice to quit served is that there is no equitable interest necessarily involved. Each is an overholding person. One is a tenant and the other is then a trespasser. I would suggest that the situation dealt with in amendments Nos. 4 and 5 might well be considered again and we might have a look at it on Report Stage.

I think we aread idem on what is involved.

Amendment No. 4 in so far as it goes is an entity and can stand on its own. It does not prejudice the question of reconsidering permissive occupancy. It will make it easier to read it on the Report Stage for one thing.

Is amendment No. 4 agreed?

No, that is only one part of it. The Minister is quite right. I introduced the amendment regarding the servient tenement to deal with the question of the owner of land over which some person might have a right of way to perhaps a fishery or just a right of way, and if the owner of the land being the owner of the servient tenement locked the gate against the dominant tenement that he would not draw on himself the rigour of this Bill. I am glad to see that the amendment is being accepted, but the very fact that the amendment had to be made and that the Minister has widened it will point up the difficulty and the ridiculousness of trying to bring into what is completely a matter for the civil code a criminal sanction. In my amendment I say:

and including also the owner of a servient tenement.

The Minister in this amendment says:

The owner of the servient tenement (in relation to an easement or profità prendre), the owner of an easement or profit à prendre (in relation to the servient tenement).

I think the proper expression there is: "the owner of the dominant tenement". It would then follow that it is the dominant tenement in relation to certain incorporeal rights being either an easement or a profità prendre. The point is that the owner of the dominant tenement is the person entitled to the right of way. Take, for example, if I have a right of way over the Minister's lands to my lands, my lands are the dominant tenement and the Minister's lands the servient tenement. Is that agreed?

Yes, but the fact that you own a profità prendre or an easement does not mean that the easement or the profit à prendre is the dominant tenement. The dominant tenement could only refer to other land. The incorporeal right in itself is not a dominant tenement.

It cannot existin vacuo. There must be a dominant tenement to which it is attached.

You could have a profità prendre in gross without attachment to a dominant tenement, for example in fishing.

Yes, but you could not have an easement. However, the point is that the owner of a dominant tenement under this Bill might be in a situation where he would be invoking the Garda authorities to visit criminal punishment on someone who interfered with his rights and perhaps a third party. At the same time, he could not take an action for trespass for damages against the third party. The owner of a dominant tenement cannot maintain an action for trespass on the servient tenement against a third party. An action that he cannot bring under the civil code is now liable to be made a criminal offence. This is one of the ridiculous results that will come from this statute. It is unavoidable when you start bringing the criminal code into the realm of the civil law.

I could foresee situations where rights of fishery are involved: for example, the fish-ins, against which the Minister is aiming this Bill, come into play. Where there is profità prendre—the right to take the fish—and an easement—the right-of-way across land —one could be in deep legal water in an attempt to exercise those rights. The question would arise as to whether some of the rights which this Bill is seeking to protect were easements or profit à prendre—for example, that they would not be irrevocable licences. As Deputy Desmond pointed out, there is here a meaty bit of work for lawyers. If a Bill can have those consequences, particularly in regard to criminal law, it is an unsuitable piece of legislation. Above all, the criminal law must be clear. If it can lead to intricate and highly technical legal consequences it is defective.

My amendment, which includes the owner of the servient tenement, is sufficient without bringing in the owner of the easement or the profità prendre and the person entitled to the dominant tenement. At that stage you are opening the door to exemptions and to quite ridiculous situations. One can consider the various type of easements that exist: for example, the right of light, there can be an easement over water and the right-of-way over land. Under the Bill if a person's easement in respect of light is forcibly interfered with by a third party a criminal offence can be committed. This is not the case if it is interfered with by the owner of a servient tenement as he is protected by the amendments. If a third party for some reason decided to diminish the amount of light to which the owner of that easement were entitled, the third party could be prosecuted under the Bill.

It is the owner of the easement or profità prendre in relation to the servient tenement. The owner of the land to which the right of light accrued would be the dominant tenement.

There would be no offence provided the dispute was between those two persons but if a third person intervened he would be committing an offence.

If the Deputy reads the last part of the amendment he will see that it is in relation to the servient tenement.

It is the servient tenement in the case of the right to light. The servient tenement would be the adjoining building which cannot obscure the right to light. The dominant tenement is the person entitled to receive the light and the servient is the property over which the light passes. They are the two persons involved. If a third party intervenes and diminishes the right to light it would appear that we would have the ridiculous situation that that person would be committing a criminal offence. I do not think that this would be good law. There are various other easements—easements to repair, support, perhaps to take turbary, which could lead to all kinds of contentions in rural Ireland. These are matters that should be settled by the parties involved and the criminal law should not be invoked. The criminal law can be invoked; it is no answer for the Minister to say that these are extreme examples and that it will not be invoked. That is begging the question because it can be invoked in an area in which it has no business. It is bad for the law and is not necessary.

I cannot accept what Deputy Cooney says. So far as the latter part of my amendment is concerned, it differs from the amendment put down by the Deputy only in that quite logically it extends the exemption to the owner of the easement or profità prendre as well as the owner of the servient tenement. I think Deputy Cooney must agree that it is only logical to do this. It is extended to the owner of the easement or profit à prendre, not to the owner of the dominant tenement. It seems to me not only illogical but unfair to have it one way and not the other way—which is the very thing all of us on both sides are trying to avoid doing.

What about the point when a particular right in question is not an easementà prendre but is an irrevocable licence and is an interference? It is hard to think of an actual example. Take, for example, a licence to take turf which becomes irrevocable.

That is a profità prendre of turbary.

Perhaps that is a wrong example. We will say a licence to pick dahlias.

It is the same thing I think.

Let us say that it arises as a licence and becomes irrevocable. There is a clear legal distinction between a profità prendre and an irrevocable licence and an easement. That would appear not to be covered by this if there were interference with it. Perhaps the Minister would consider extending it to deal with such a case.

I think the next amendment would cover a licence, irrevocable or otherwise.

We will hear the Minister on that.

This will be considered on Report Stage?

I think amendment No. 4 can stand on its own. We can look at amendment No. 5 again with regard to a permissive occupant.

If the point about the permissive occupant could be put in with amendment No. 4, amendment No. 5 could go.

If that point could be accommodated it could be put in as an amendment——

To the exemptions.

As an additional exemption.

That is fair enough.

Amendment agreed to.
Amendment No. 5 not moved.
Notice taken that 20 Members were not present; House counted, and 20 Members being present,

I move amendment No. 6:

In page 2, to delete lines 38 and 39 and substitute:

"(3) Nothing in this Act shall apply to an entry or an occupation of land or a vehicle in the exercise of lawful authority or with the permission of the owner."

The object of this amendment is in effect to extend subsection (3) of section 1 by providing that nothing in the Act shall apply to an entry or an occupation of property with the permission of the owner. In this respect the amendment covers what I think Deputy Cooney was trying to achieve in amendment No. 5 by his reference to a permissive occupier. Where a person has permission to enter or occupy land it is, of course, right that his entry or occupation, to the extent that it is covered by the permission granted, should not be capable of rendering him guilty of an offence under section 2 or section 3. It would be possible to ensure this by suitably extending the definition of "owner" but that approach would have an unintended and undesirable side effect in that, for example, when the Bill speaks in section 2 of a person who forcibly enters land being asked to leave by the owner, the reference to "owner" would include a person who was merely on the land with the owner's permission. This would clearly be undesirable because, of course, such a person would have no right to speak for the owner or to exercise any of the rights of ownership in relation to a third party.

(Cavan): I come back to my definition of “owner”. This amendment really shows the thinking behind this Bill. The word “owner” no matter how vaguely used is to be the all important thing. This amendment says that anybody who takes possession of property forcibly, provided he does so with the permission of the owner, will not be guilty of an offence.

"Owner" means the fee farm grantor, a person who is not entitled himself to possession of the land. Suppose this fee farm grantor were devilish enough or mischievous enough, he could authorise some man of straw and give him permission to go in and squat in somebody's house, and the occupier would have to rely on the civil law to get him out, and might be put to very, very considerable expense in getting him out. The Minister may say that I am taking a very far-fetched example but I am not, because I should like to go back to—I was going to say the late Mr. Boland—the former Minister for Local Government and his belted friends about whom he spoke in this House. Perhaps some of them——

Belted earls.

(Cavan): I am talking about his belted friends.

They were not friends of his.

A Deputy

Some of his belted friends are still here.

(Cavan): Belted friends. Assume for the moment that the fee farm grantor of a Georgian house which is scheduled for demolition for some very laudable or very worthy purpose wants to co-operate with people who, according to a lot of other people, quite unreasonably, want that house to be retained. If he believes that at all costs the house should be preserved, all he has to do, if this definition of “owner” is passed, is to give permission to anyone he likes, or to any number of people he likes, to go in there and squat. They will not be committing an offence and the Minister cannot put them out. If this Bill had been in force when the Hume Street episode was in full flight, if the fee farm grantor of one of those houses, or the lessor under a lease for 10,000 years, had given permission to the protesters to go in there, they would have been entitled to go in and the Minister could have done nothing about it.

With all due respect to the Minister he has drafted this Bill badly. He should have spent more time on it. He should have another look at it. He will see that if this amendment and the definition of "owner" go through it will get him exactly nowhere. I feel I am helping the Minister by these remarks and I should be glad to hear what he has to say.

Since it is the intention of the Labour Party to vote against section 1 we are not unduly preoccupied with this last-minute effort on the part of the Minister to try to cover his tracks. The Minister accused me earlier on of making fun of him and of his Bill. Amendment No. 6 proposed by the Minister says:

In page 2, to delete lines 38 and 39 and substitute:

(3) Nothing in this Act shall apply to an entry or an occupation of land or a vehicle in the exercise of lawful authority or with the permission of the owner.

A cursory examination of that amendment exposes the need for having a sense of humour in dealing with this Bill. The tragedy of it, of course, is that, having regard to the fact that political legislation is brought before this Dáil for an entirely different purpose from that for which it was drafted, it will take a half a dozen cases in the law courts, following the passage of this Bill, to expose the inherent inconsistency of amendment No. 6. Therefore, we should not spend much more time on it but, perhaps, pass on to amendment No. 7 in which the Minister provides gratuitously, as he will discover, that the Bill will not apply to trade disputes, for which we must express profound thanks.

The whole tenor of all the amendments so far to the definition section has been to widen the categories of persons who will not be affected by the Bill. There is the difficulty of making it too wide so as to make the Bill ineffectual or of making it too narrow so as to be unjust to people who should not come within its scope. It is gradually getting wider and wider. We have exempted permissive tenants and overholding tenants; we have exempted persons having any interest or estate in land, persons lawfully in occupation of it. We have now exempted persons who are there with lawful authority or with the permission of the owner and, in addition, any person acting on behalf of the owner. That lets in a very wide category of people when the term "owner" is already so widely defined. Then there is the case of a person acting on behalf of the owner.

Every Alsatian dog in the country is covered by the Bill now. One begins to wonder what is the point of the legislation when the exemptions are so wide and there are so many legal loopholes contained within the exemptions, room for so many legal arguments, that the Bill appears, at this stage, to be ineffectual. The Minister's last amendment will further widen the scope of the exemptions. It is perfectly commendable to avoid innocent people being caught by a criminal statute but the Bill now exempts so many people that it is shown up to be what it always was, unrealistic and not at all a suitable or necessary piece of legislation for our society.

I cannot accept Deputy Fitzpatrick's or Deputy Cooney's interpretation of this. As Deputy Cooney correctly says, I have tried to widen the exemptions; in other words, I have tried to narrow the application of the Bill so far as I can reasonably do so. I do not want the legislation to apply to anyone who has any shadow of right in the place. That is the reason for this amendment. Deputy Fitzpatrick produced what I think even he will agree was a very far-fetched example. It is really an extension of his argument in regard to his own amendment No. 3. One of the things he seems to take for granted is that a fee farm grantor exercises some right of occupation.

He does not. He has no such right; therefore, not having it, he cannot give it to anyone else.

(Cavan): Within the Minister's definition he has an estate or interest in land.

Yes, but the fee farm grantor does not, by virtue of his position as a fee farm grantor, have the right to enter property except possibly in very obscure circumstances. Therefore, not having the right himself, he cannot give that right to anybody else. Consequently Deputy Fitzpatrick's example, as well as being far-fetched is, I think it is correct to say, impossible.

(Cavan): The Minister has just argued my case for me and argued it very effectively. My whole complaint is that for the purposes of this Act the only person who should be regarded as an owner is a person who is entitled to possession. I gather now the Minister thinks that is what the Bill says. The Bill does not say that. The Bill says that an owner, for the purpose of this Act, is a person who has an estate or interest in land. A fee farm grantor or a lessor certainly has an estate or interest in land. That is elementary. Such a person——

Does not commit an offence but does not have a right of entry.

(Cavan): Anybody who enters with his permission does not commit an offence. He has not a civil right of entry but he does not commit an offence under this Bill. Let us say that Lord So-and-So is very interested in the protection and preservation of Georgian architecture —and I respect the views of people who believe that these Georgian houses should be preserved. It is a point of view, but it could very well happen—and the Minister will not contradict me here—that Lord So-and-So, who believes in the preservation of Georgian architecture, would be the fee farm grantor or the head lessor of a house of the Georgian type which was about to be demolished. If that landlord or grantor authorised an army of protesters to go into that house and squat there, then this Bill, when it becomes an Act, will be useless in the hands of the Attorney General or the Garda from the point of view of getting possession of the house and the Minister would be right back where he started. If that is what the Minister wants he should say it. I happen to be more with the Minister in regard to this Bill than he thinks. I believe that the occupier should be protected but I do not believe that this Bill is protecting the occupier. It was drafted without due thought for the occupier and with too much thought for the person with a remote interest in land.

The point that Deputy Fitzpatrick is making was put to the law officer and his advice is that the interpretation of the section as I gave it is the correct one but the argument that Deputy Fitzpatrick is making now which, on the face of it, relates to this amendment, in effect relates to amendment No. 3 which we have already agreed to look at again on Report Stage. Therefore, any problem that might arise under this amendment, No. 6, would arise or would not arise, depending on how No. 3 was dealt with, so I suggest that the problem will be overcome by our reconsideration at Report Stage of No. 3.

(Cavan): I agree entirely. My whole purpose in arguing on this amendment was to point out to the Minister and seek to convince him of the necessity for an amendment of the definition of “owner”.

Amendment agreed to.

I move amendment No. 7:

In page 2, after line 39, to insert the following new subsection:

(4) Nothing in this Act shall affect the law relating to acts done in contemplation or furtherance of a trade dispute within the meaning of the Trade Disputes Act, 1906.

I move this amendment in order to make it clear that nothing in the Bill will affect acts done in contemplation or furtherance of a trade dispute. It was never the intention that the Bill should apply to acts of that kind and my amendment will have the effect of specifically excluding such matters from the scope of the Bill. When this Bill is enacted the position will be that anything done in contemplation or furtherance of a trade dispute which would be lawful under existing law will continue to be lawful and anything which would be unlawful now will continue to be unlawful.

The words "an act done in contemplation or furtherance of a trade dispute" are used in the Trade Disputes Act, 1906. Their meaning has been well established in case law. For an act to be done in contemplation or furtherance of a trade dispute, the dispute must be imminent and the act must be done in expectation of and with a view to it, or, alternatively, the dispute must already exist and the act must be done with the support of one of the parties. In either case, the act must be genuinely done as described. The term "trade dispute" is itself defined in the Act of 1906 and has also been the subject of interpretation in case law.

Acts done in contemplation or furtherance of a trade dispute are already exempt from certain aspects of the ordinary criminal and civil law. Section 3 of the Conspiracy and Protection of Property Act, 1875, provides a measure of immunity in this sphere from the law of criminal conspiracy and section 1 of the Trade Disputes Act, 1906, extends the immunity to civil conspiracy.

The only comment we would make on this is that the Bill was introduced with a fanfare of trumpets and now this amendment is brought in to clarify it further. The amendment speaks for itself. Therefore, no comment is necessary at this stage.

Amendment agreed to.

I move amendment No. 8:

In page 2, after line 39, to insert the following new subsection:

(5) Nothing in this Act shall be regarded as conferring on any person any right to entry or occupation of land which did not exist immediately before the commencement of this Act.

This amendment is designed to allay the fears of those Deputies who, on Second Stage, inferred that a right which does not already exist is being conferred on persons to enter or occupy land. As I said earlier, I am satisfied that there is no basis whatever for such fears because while the Bill makes it an offence forcibly to enter or occupy land in certain circumstances, it does not contain any provision that could even remotely be construed as conferring a right of entry or occupation that does not exist at present. From the legal point of view, there is no necessity for this amendment but I have put it down in order to prevent any misunderstanding or deliberate misrepresentation of what is in fact in the Bill.

This highlights what I said earlier in regard to amendment No. 6 which was that the further we go in debating this, the clearer it becomes that it is a most difficult Bill and that the whole fear of the Minister is that it may affect innocent persons. Naturally, it is a commendable fear but what sort of a wrong does it seek to remedy when it is so full of danger for innocent persons? One can only come to the conclusion that the wrong and the abuse must be so minimal within our society as to be underserving of a piece of criminal legislation to try to right it. This has been my case all along in regard to this particular Bill. There is another way of remedying what is a trivial abuse within our society. It is now clear that the Minister and the Government accept that the abuse is minimal and is being perpetrated by a very narrow section of our society. It is almost impossible to draft a piece of criminal legislation that will effectively contain that particular section while impinging on the rights of no other section. So long as society does not suffer from an ailment that is widespread and potentially harmful enough to merit an easily applied piece of criminal legislation, society is not ready for such legislation and does not need it. It is bad to bring in legislation that is not obviously needed.

Amendment agreed to.
Question proposed: "That section 1, as amended, stand part of the Bill."

The Labour Party's point of view in relation to section 1 should be stated at this stage. We believe that section 1 should be opposed. We are vehemently opposed to squatting as such by individuals or by groups of individuals either on public or private property. We do not accept that there is a need for the provisions in section 1. We consider the Bill to be unduly sweeping in its overall implications for the civil and the political rights of all our people.

It is remarkable that the Minister in advancing the various ambiguities in section 1 made very little reference to the purpose of section 1, and entirely related it to his concept of the use of force by persons other than the owners of property. To take one part of section 1, it is stated on line 28 "any person acting on behalf of the owner...". I consider that to be entirely reprehensible. Does this mean that if a security firm in this city decide to act on behalf of an owner, using whatever legal means they wish, they are perfectly entitled, under the full protection of the criminal law, so to act? Does this mean any relative of an owner, or any person acting on behalf of the owner? It does not even say "any unauthorised person".

The implications of section 1 are entirely unacceptable to the Labour Party. This brings me to a comment made by an impeccable moral authority, the Reverend Father Enda McDonagh, Professor of Moral Theology at Maynooth College. He made a very cryptic comment on this Bill with direct reference to section 1. He said that the Bill gave him a vision of a society which he found impossible to take. He said this a couple of months ago. He also said that the Government ought not to be tackling the symptoms that deprive the weak; they should be tackling the strong who are responsible, and he said that this Bill is designed to protect the strong even further. I think that Deputy Cooney, Deputy O'Higgins and Deputy Fitzpatrick would agree with me that this can affect the overall position in regard to the Bill, which is an unbalanced Bill, a Bill I might say, given extreme prominence by the Government in their legislative programme away and beyond——

The Deputy is now making a general comment on the Bill rather than on the section, which is definitive.

I will come then to the section. The definition of what might constitute a threat to use force is something which has already been amply elaborated on by ourselves here tonight and has been shown up to be the spurious piece of drafting which it is. There is nothing in section 1 which can afford us any comfort whatsoever in our approach to this legislation. It would be quite impossible for the Minister to bring in a section which would cover the very many contingencies which he has tried to cover in a very clumsy way. I have the utmost sympathy for the parliamentary draftsmen, for the staff of the——

The Deputy is trying to back out of it now.

I have sympathy for any parliamentary draftsman who would have to respond to any Government or any Minister or who would be directed by a Minister to draft section 1. The parliamentary draftsmen did as good a job as they could but——

That is very different from what the Deputy said a while ago. Then they were highly incompetent.

Not only have they done as good a job as they possibly could do but the Minister gave them an impossible task, a contradictory task and I might say a vindictive task and I do not use that word lightly. The Minister gave them the job of producing what has been described by almost every responsible editor in the country and by anybody with a shred of liberality as retrograde legislation. Any person who owns property or any person enjoying the use of property, any solicitor, barrister or any member of the judiciary reading that section could certainly drive a coach and four through it. The Minister will very much regret that he has produced this definition section in such a ridiculous way.

(Cavan): On the Second Reading I said that I accepted the Bill in principle in so far as I wished to protect the rights of an occupier of land or a building to the occupation of that land or building, but I also said that the Bill would need many amendments before it would be acceptable to me. The fact that the Minister has seen fit to table four amendments to the definition section goes to show that the Bill was drafted in haste, that the section was drafted in haste at a time when there was considerable squatting and forcible entry in this city. It was drafted in that sort of atmosphere. The Minister, as I say, has put down four amendments to the section and he has promised to consider at least two other amendments put down by Deputy Cooney and myself.

I would find it impossible to support the section as it stands were it not for the fact that the Minister has promised to have another look at my amendment No. 3, which is directly related to his amendment No. 6. The Minister will see how absurd amendment No. 6 would be if amendment No. 3, or something like it, is not given effect to. I am convinced that the Minister will see clearly that he will have to do something about this definition of ownership because otherwise the Bill will be a farce and will be unworkable. There is no use putting on the Statute Book legislation that is absolutely meaningless.

The first definition is in regard to the word "forcibly" and the Minister refused to accept our amendment to let that read "the use, or threatening to use force in relation to personal property" and persisted in retaining within the definition what is in effect a definition of the offence of conspiracy. There is no doubt that the tenor of the Bill is penal and repressive and the state of our society does not demand such legislation in this day and age. I am very conscious that the amendments which we have been discussing have been designed to soften the impact of the Bill. The Minister has shown himself anxious to widen the exemptions, to make sure that any person that, as he says himself, has even a shadow of right in relation to property will not be prosecuted. That is commendable but it highlights the fact that there is no evil in our society which demands a piece of repressive criminal legislation to remedy it. There was a minor problem, the result of a social wrong, and the way to tackle it is not with criminal legislation. Possibly, as a lawyer, the Minister is aware of the value of the idea of the rule of law, that the law should be enforced equally on all citizens and should never be unjust or repressive. This Bill is a breach of that rule which is the keystone of any democracy. Any part of such a Bill, irrespective of what good may be in it, if its general tenor has that effect, must be repugnant.

I do not like in any way to criticise the Chair but I wonder where we are going. We are on section 1 and there have been a number of amendments proposed and these were very ably and fully discussed. We are now considering a section which is composed of definitions. We may have strong views as to what "forcibly" should mean, whether it should merely mean using or threatening to use force in relation to person or property or whether it should mean the added words contained in section 1. We may have views also as to what "owner" means, whether it should mean the words contained in the section or the words proposed to be added in different amendments.

It seems to me that, from the point of view of the Committee of the House, in so far as those who hold the views which were expressed—in my view very sincerely—this is not the section in relation to which they are appropriate. This is merely the section defining the terms to be used in relation to the subsequent sections of the Bill. Having passed the Second Reading of the Bill I think section 1, in principle, has been agreed to subject to whatever amendments would be incorporated. I am suggesting that this is a matter that might be taken so that we could get to the more important sections of the Bill which I think are the subsequent sections. I would have supported it but I would also have supported a change in the definition of "forcibly" and other suggested amendments to the section. These have not been carried by the Committee of the House and now the only question is whether this section, which is purely a definition section, should stand so that sections 2, 3, 4 and 5 may be considered in the light of these definitions. I think we should get on to sections 2, 3, 4 and 5 and decide the matter as qiuckly as possible.

In regard to the objections on this side it must be said that we are, for the first time in our history, introducing statutory concepts and legal definitions of terms which most certainly are of major national importance and it would be inappropriate if we did not try to see the full implications of the Minister's definitions in this Bill. We are adamant in saying that there is no need for the criminal law to be extended by means of definition in this Bill into an area concerned with resolving conflicting property interests if the problem can be resolved either by improving relevant civil proceedings or availing of——

The Chair has already pointed out that we cannot have a general discussion on the Bill at this stage. We are confined to section 1 which is definitive and which has been amended.

I accept the rather narrow interpretation of the Chair. I shall not prolong the discussion; as Deputy O'Higgins said, many other sections are certainly relevant if we wish to comment at length on them. I do not think it is entirely a matter of definition. It is a matter of very serious concern that the Minister should resort to such definitions in such a manner in the House this evening.

Does Deputy Desmond understand what I mean? Suppose that by a not improbable circumstance this side of the House suddenly found itself with a majority and section 1 were deleted from the Bill we would then, I imagine, unless there was an intervention of a force outside our control, go quietly to section 2 and discuss it without any definition of what "forcibly" or "owner" might mean and we would find ourselves in rather a peculiar position. It would seem to me that, however strongly people may feel about it, it is at least a good thing to have the terms used in section 2 defined so that we can understand what is meant in the section rather than have them at large without definition. Section 2, if the terms are not defined, becomes a much more repressive section than, in fact, it is.

Question put and agreed to.
SECTION 2.

I move amendment No. 9:

In page 3, to add to the section a new paragraph as follows:—

"(c) he enters in pursuance of abona fide claim of right.”

This section is perfectly in accord with the amendment which the Minister introduced to the definition section, section 1. Section 2 creates an offence by a person who forcibly enters land or a vehicle unless he is the owner of the land or the vehicle or if he is not the owner he does not interfere with it and leaves it in a peaceful way when called upon to do so. The amendment puts in a third exemption, "unless he enters in pursuance of abona fide claim of right”. When we were discussing the first section the Minister was at pains to make sure that no innocent person would be inadvertently caught by this Act. I have put down this amendment to introduce a further paragraph into the section in order to ensure that no innocent person who enters in pursuance of a bona fide claim of right would be guilty of an offence. As the Minister said, and I quote his exact words, because they impressed me at the time: “I do not want the Act to apply to anyone who has even a shadow of a right.” That was a very commendable statement and it meets my amendment exactly as I intended it.

I support Deputy Cooney's amendment and reserve my right to speak until after Deputy Pattison has spoken.

Having said that the definition of an owner includes any person acting on behalf of the owner we immediately find ourselves in trouble on this section because, by implication, it gives legal authority to a great number of unknown people to forcibly enter land or housing or vehicles and this is something we are totally against. In fact, we would be against even the owner himself having the right to forcibly enter the land because, as we have seen far too often in the past, particularly where persons are acting on behalf of the owner, they have been shown to be rather ruthless in the way in which they enter such buildings and in the treatment they mete out to people they find occupying such buildings. The amendment does not help the situation because it gives the person acting on behalf of the owner, who, as I have said, could be anybody at all, certain rights which we do not feel they should have under this section.

Arising out of what Deputy Pattison and Deputy Cooney have said, section 2 is the nub of this Bill and here we are proposing to say that anyone who forcibly, as defined, and I think Deputies will now appreciate how important it is when discussing section 2 to know what the terms are, who forcibly enters—by the way, that is splitting an infinitive, and I am sure we would not do that in the Gaelic version of the Bill, but they drafted it like that in the Department of Justice —land is guilty of an offence unless he is the owner of the land. That is thank you for nothing.

I do not want to interrupt Deputy O'Higgins but I wonder if we could dispose of the amendment first before the section. If I deal with the amendment now, it may be of assistance to him in his consideration of the section.

Is the Minister going to accept the amendment?

Yes. Amendment No. 9 and amendment No. 10, although that is in section 3, make in effect precisely the same point and for that reason, with your permission, a Leas-Cheann Comhairle, I should like to be allowed to discuss them together.

Amendments Nos. 9 and 10 to be taken together.

Does that mean we are syncopating sections 2 and 3?

No, the sections will be taken separately, but the principle in the amendments is the same.

The amendments will be discussed together but the sections will be discussed separately.

If the House so wishes I am prepared to accept amendments Nos. 9 and 10 subject to minor adjustments in wording, which I shall mention in a minute. I want to make it clear that I regard the amendments as quite unnecessary since at common law abona fide claim of right will automatically be a defence to a charge involving an offence under either section 2 or section 3.

That is news to me.

They are absolute offences, are they not? "A person who forcibly enters...shall be guilty of an offence unless..."

Surely there is no offence unless there is an absolute statutory liability?

Unless the word "knowingly" is usedmens rea is excluded, is it not?

There is a presumption ofmens rea which must be rebutted by statute. A person is said to have a claim of right where he honestly asserts what he believes to be a lawful claim even though it may be founded on a mistake as to the fact or as to civil law. Such a claim resulting in a supposition by the person that he had a right to act as he did is a defence to charges involving various types of offences including inter alia malicious damage, larceny and other crimes against property. Since a claim of right concerns the state of mind of the accused it has the effect, if successfully established, of negativing mens rea.

It is, of course, the general common law rule that a crime cannot be committed unless there ismens rea and this rule is imported into a penal statute unless a contrary intention is expressed or implied. I am advised that no such contrary intention is expressed or implied in either section 2 or section 3 of the Bill. Indeed, in so far as section 5 acknowledges the possibility of a bona fide claim to ownership by a person charged with an offence under section 2 or 3, the Bill contains a strong pointer to the presence of the requirement of mens rea and the availability of claim of right as a defence in relation to these offences.

In the statutes relating to malicious damage to property, the defence of claim of right is provided in the case of some offences but not in the case of others. Nevertheless, the courts have held that the defence is available in respect of all such offences. Where the defence has been provided by statute, as in section 52 of the Malicious Damage Act, 1861, it has been criticised as unnecessary and as restricting the defence that existed at common law.

Claim of right is only one of many grounds of exemption from criminal responsibility which exist at common law. These grounds include insanity, incapacity because of age, dress, necessity, mistake and so on, but it is not of course the practice to write them into every penal statute. There is good reason for this, because the common law rules relating to these matters are supported and governed by a substantial body of case law and there is always the very real danger of unintentionally altering or narrowing the scope of one of the rules in attempting to write them into statute law.

Nevertheless, as I said at the outset, I am prepared to accept the substance of the amendment if the House so agrees and if it would make Deputies opposite a little happier. My acceptance is subject to the making of two minor changes, which we could perhaps agree here and now if the House is willing. In section 2, to which amendment No. 9 relates, it will be necessary to add the word "or" at the end of paragraph (b). In section 3, which speaks of a person who "remains in forcible occupation of land",et cetera, amendment No. 10 will have to be altered to read, “or so remains in pursuance” instead of “or has entered thereon in pursuance”. Clearly, the claim of right must relate to the remaining in forcible occupation and not to the entry, since an offence under section 3 could occur even though the manner of entry was lawful.

May I say I was speaking to the Minister and I asked him to intervene and he did intervene to make this concession? I do not say "concession" in any sort of ungenerous way because this is, in my opinion, a major change in this Bill. This change is due largely to the way in which Deputy Fitzpatrick put the argument in the Second Reading debate and to Deputy Cooney's intervention on this Committee Stage. This is, of course, a major change.

It is not a major change. If the Deputy had listened to what I said he would know it is not a major change. The Deputy is scarcely encouraging me now to accept his colleague's amendment.

This is a major change in the Bill. If the Minister wants modern law, there is a section on our Statute Book which says that anyone who imports arms without a licence shall be guilty of an offence. That is an absolute offence. The importation of arms is absolutely prohibited and if a person imports arms, thinking he has a permit from the Minister for Justice, discovering later that it had been forged, that person has committed an offence although he had nomens rea, no guilty intention, no malice. That is what is known as an absolute offence. These absolute offences are not known to the common law but they are known to our statute law. Far too frequently in this House, ill-advised from time to time—I do not say by the present Minister, but certainly by some Ministers—Deputies are asked to pass Draconian sections, sections imposing absolute prohibitions on a course of conduct and things that people might do, irrespective of what they intend. Section 2 of this Bill was just such a section. The section read:

A person who forcibly enters land ... shall be guilty of an offence unless

(a) he is the owner of the land....

I am saying "Thank you for nothing". It is a good thing to know that I can go back into my house, that despite the fact that a number of people might be able to resist me, and though I had to use force to get back into it, under the concession from the Minister, I did not commit an offence because I wanted to rejoin my family.

The section was:

(b) if he is not the owner, he does not interfere with the use and enjoyment of the land... by the owner and, if requested to leave, he does so with all reasonable speed and in a peaceable manner.

As that section stood, it did not matter a thrawneen that the motives of the person were perfectly peaceful, perfectly legitimate, and absolutely, as he believed, in pursuance of his legal right. He may have felt he was the lawful owner of the house; he may have felt he was the lawful tenant of the house. His intentions may have been along those lines but, under this absolute prohibition, that was no defence.

The Minister says he is advised to the contrary. I do not respect, I am sorry to have to say it, the advice tendered to the Minister and I do not think the Minister thinks very highly of it either because the Minister has declared that he is prepared to accept this fundamental amendment. That is, I think, a good thing for the Minister to do. His having done it, let us be thankful for it, but let no one think that this amendment is being accepted by the House on the basis that it is unnecessary. This is a very essential amendment to this Bill. In my view it clearly changes in a very drastic way the provisions of section 2 and the credit for the Minister's acceptance is due to Deputy Fitzpatrick and Deputy Cooney for pointing out this clear omission from the Bill.

I do not want to enter into what is clearly an academic argument now but, as I stated at the outset, and as Deputy O'Higgins very well knows, there was a presumption of the necessity to provemens rea. Mens rea is an ingredient in an offence unless, for one reason or another, the statute excludes it expressly or impliedly.

At common law.

Neither of these sections so excludes andmens rea, therefore, must be proved. If someone wanders in in a daze he is not guilty of an offence.

Because he is not forcibly entering. But the person who forcibly enters commits an offence, full stop.

If he hasmens rea.

It does not say so.

It is necessary to prove it even in malicious damage. It has been held by the courts that there ismens rea because there was nothing specific in the section to exclude it.

(Cavan): The contrary is, I think, presumed in malicious damage. The person is presumed to intend the result of his actions.

What happens in the case of a man who forcibly gets through a fence around a hurling or football field? Can he be arrested? That is quite a common happening.

I do not think it arises on the amendments.

Can such a man now be arrested because he gets in without paying?

He had better not be caught stealing apples.

What happens if a man enters through a fence at a race meeting or a football or hurling match?

He is already on the property.

He is not.

I think the time has come now to advise the Minister and generations of O'Malleys yet to come that, as soon as they forcibly enter an orchard and steal a few apples, they will in all the exuberance of their exploit commit a criminal offence. Acceptance of Deputy Cooney's amendment is welcome, but it is a very poor solution. This is another example of showing why this Bill should never have been introduced. A person will now be deemed guilty until he proves his innocence. Even with this major amendment the section is still repugnant.

Am I to take it the amendments are accepted?

The Minister has accepted them.

In the amended form. As they stand, neither could go in.

It is the principle.

The word "or" will have to go in at the end of paragraph (b).

The Minister said he accepted the amendments and I was speaking on the section.

We have first to agree the amendments as amended.

Amendment amended by leave to read as follows:

In page 3, to insert "or" at the end of paragraph (b) and to add to the section a new paragraph as follows:

"(c) he enters in pursuance of abona fide claim of right”.

Amendment, as amended, agreed to.

Amendment No. 10 would have to read:

or so remains in pursuance.

We cannot rule on the amendment to section 3 yet, but we can rule on the intention.

Question proposed: "That section 2, as amended, stand part of the Bill."

It is still necessary to point out that section 2, irrespective of amendments, still creates a new criminal offence of forcible entry and forcible occupation. This is the basic objection to this Bill and to this section. I see no need at this point in our social development to create such a formal criminal offence. Such activities are already crimes and the need to create another new statutory offence is still not clear to me. Illegal entry and illegal occupation of property has always been dealt with through the civil process and not through the criminal law. In England, where squatting problems are much greater than they are in this country, the position has been met by streamlining the civil law by such means as providing for the serving of proceedings on squatters without necessarily having to formally name each one of them, by simplifying the various technical requirements in respect of civil proceedings and by strengthening the general machinery for enforcing decrees. What do we get here? We get a Garda Síochána in uniform who in his wisdom comes to the conclusion when he sees somebody in a field or in a house that that person has forcibly occupied that premises. We are putting uniformed members of the Garda Síochána in, I would suggest, an entirely new invidious position. We are saying to the garda: "If you feel that somebody has forcibly entered land or a house you may walk up to him and say, `You have forcibly entered there. Out you get. It is a criminal offence and if you do not get out with all reasonable speed and in a peaceable manner I will charge you with a criminal offence.' " There is no question of a civil prosecution. Placing such authority in the hands of the custodians of the law is putting them in an invidious position and making questionable the law of a democratic country.

I would suggest to the Minister that he has gone even further in relation to the definition of "owner". It includes any person acting on behalf of the owner. Supposing I in Dún Laoghaire am the non-resident owner of a house or flat and get a telephone call to say that somebody has moved in. I can ring the Garda Síochána or I can ring K Security and say that I think somebody has occupied my flat and ask them to bring up their Alsatian.

Criminal offences are brought into being under section 2. This is an entirely reprehensible, retrograde step. A farmer could advertently or inadvertently enter land, perhaps land which is in dispute in the family, and another member of the family may say that he has an interest in the land. He may say the farmer has forcibly entered the land and contact the Garda Síochána in uniform or he himself may do it and if that farmer does not leave with all reasonable speed in a peaceable manner he is committing an offence of a criminal nature.

That is the whole point of the definition—that he is not committing an offence.

I do not accept that at all.

The Deputy does not understand what he has been talking about and has not understood any of the Bill.

I read what is in the Bill. I do not read what may or may not be in the Minister's mind.

What the Deputy is reading in the Bill concerns those who are exempted from the Bill, not those covered by it.

I still maintain it can happen under section 2.

The Deputy would not have the faintest idea.

I maintain, quite adamantly, that virtually anything can happen under this legislation. The Minister has not convinced me that a person cannot be charged with a criminal offence in many ways, by many devices, which any owner, alleged owner or person acting on behalf of an owner may feel is open to him under section 2. It is the intention of the Labour Party, not this evening though, to issue a formal challenge to the House on section 2.

The Deputy said that about section 1 and he did not have any Division.

We are not interested in having Mickey Mouse Divisions on definitions.

The Deputy was making a big fuss about it. Deputy O'Higgins was trying to tell him——

I will make a big fuss about it.

He told us a few times he would have a Division.

We will have plenty of Divisions—on sections 2, 4, 5, 6, right down to 9.

Progress reported; Committee to sit again.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m. on Thursday, 22nd April, 1971.