Housing (Private Rented Dwellings) Bill, 1982: Second Stage.

Minister for the Environment (Mr. Raphael Burke)

I move:

"That the Bill be now read a Second Time."

Deputies should be reasonably familiar by now with the problems facing tenants of dwellings controlled under the old rent restrictions code. This is the fourth piece of legislation to come before the House in the last 12 months on this subject and I hope that this time we have produced a Bill that strikes a fair balance between the rights of landlords and tenants and is at the same time constitutional.

The need to introduce new legislation to protect tenants arises out of a series of court decisions on the constitutionality of laws controlling rents and restricting the rights of landlords to recover possession of their property. The Supreme Court's judgment on 29 June of last year declared Parts II and IV of the Rent Restrictions Act, 1960, unconstitutional. This had the effect of removing, from an estimated 30,000 tenants, protection from rent increases and from eviction. In essence the Supreme Court held that these parts were an unjust attack on the property rights of landlords in that they were contrary to Article 40.3 of the Constitution. That article requires the State in its laws "to protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen".

Immediately following this judgment the previous Government introduced the Rent Restrictions (Temporary Provisions) Act, 1981. That Act made rent increases unenforceable and provided tenants and their families with protection against eviction for a period of six months in order to allow time for an examination of the Supreme Court's judgment. The legislation was extended for a further three months by the Rent Restrictions (Temporary Provisions) (Continuance) Act, 1981, and is due to expire on 25 April next. I think there is broad agreement on all sides that new legislation is called for and that it must be enacted before the temporary legislation runs out. Only by doing this can we avoid a major social upheaval affecting thousands of persons, many of whom are amongst the poorest and most vulnerable in our community.

In December last year the previous Government introduced and had passed by the Oireachtas the Housing (Private Rented Dwellings) Bill, 1981, which sought to provide permanent controls for this area. Many constitutional questions were raised by that Bill and indeed Deputies on both sides of the House expressed the opinion that it should be tested in the Supreme Court as soon as possible. In the event, the President did refer the Bill to the Supreme Court in accordance with Article 26 of the Constitution. On 19 February last judgment was given that section 9 of the Bill was unconstitutional. That section included provision allowing for the phasing-in of rent increases over a five-year period. The provision was considered an unjust attack on the property rights of a landlord as it deprived him of part of his just and proper rent for the periods specified in the Bill. The Supreme Court could find no justification for so depriving landlords of their rent and accordingly found the provision to be in contravention of Article 40.3 of the Constitution. As a result of this decision the Legislature is faced once again with the urgent need to enact law to prevent the dire consequences, recognised by all, that would occur if the legislative vacuum that has been created is not filled.

The Bill before the House follows the broad outline of the Housing (Private Rented Dwellings) Bill, 1981. Important changes have been made to take account of the most recent Supreme Court judgment and allow for certain amendments put down by me during the passage of the 1981 Bill through the Dáil, including a provision for assistance to tenants for whom payment of increased rent would cause hardship. There are also a number of drafting and consequential amendments to the 1981 Bill. The Government have examined carefully the Supreme Court judgments and the legal advice available to them is that the amendments made meet the Supreme Court's objections to the previous Bill.

Deputies will have an opportunity during Committee Stage to examine the Bill in detail. For the moment I intend only to set out the most important provisions and the significant changes from the 1981 Bill. The present tenant of the dwelling and his spouse are given the right to retain possession of a previously controlled dwelling for their lifetimes. This is in line with the earlier Bill. A member of the present tenant's family who succeeds to possession is given security of tenure for twenty years from the commencement of this Act. Where such a person becomes the tenant towards the expiration of the twenty years, a right to retain possession for a minimum of five years is given. This provision is in line with an amendment I put down during the passing of the previous Bill.

The rent to be paid for the dwelling will be for settlement between the landlord and the tenant and, in default of agreement, the amount the District Court considers a just and proper rent having regard to criteria set out in section 13 of the Bill. This formula requires the court to take account of, amongst other things, the nature, character and location of the dwelling, the means of the landlord and the tenant, the date of purchase of the dwelling and the amount paid for it and the length of the tenant's occupancy of the dwelling. This is an important change from the 1981 Bill.

The second major change concerns the inclusion in this Bill of a provision enabling the Minister for Social Welfare to make regulations providing a system of rent allowances to tenants who might otherwise suffer hardship as a result of increases in their rents. The Minister for Social Welfare will announce details of this scheme of rent allowances in due course.

Apart from the absence of any provision for the phasing-in of rent increases, which falls as a direct consequence of the Supreme Court decision, the remaining provisions of the Bill are substantially the same as before. The gross rent, where set by the court, will take into account improvements carried out by the tenant and the rent is subject to five-yearly reviews. The tenant is entitled, on quitting the dwelling, to compensation for improvements he has done. He may also be entitled to two year's rent of alternative accommodation if the landlord obtains an order for possession to carry out a scheme of development, to house a member of his family or somebody bona fide residing or to reside with him, to house a person in his employment or in the interests of good estate management. The same provisions as previously regarding the right of a landlord to recover possession in certain circumstances are included. The landlord remains responsible for the tenant's costs where the landlord applies to the court to fix the rent, subject to the court considering this reasonable. The Minister may make regulations for the registration and standards of all rented dwellings and, in a change from the earlier Bill, rent books can also be required. As the Deputies will see there are a number of minor changes in the text and the format is somewhat different but these can best be examined on Committee Stage.

During the passage of the 1981 Bill through the Oireachtas considerable disquiet was expressed in both Houses about the use of the District Court to fix rents. It was felt by many Deputies and Senators that the volume of cases arising out of this Bill would swamp the District Court system, so leading to unacceptable delays. There was concern that the formality and cost of court proceedings could prove unnerving for persons who may never have been in a court in their lives. In considering the options open to me to set up a system of arbitration between landlords and tenants I have been very conscious of these difficulties. To ensure that the District Court will be able to cope with the increased volume of work that will be involved the Government have decided to appoint additional district justices to cope with the extra workload. This should ensure that rent cases are dealt with as speedily as possible without, at the same time, overloading the District Court system generally. With a view towards making the proceedings less formal and consequently less intimidating, it is intended that the new district justices will, particularly in the Dublin area where the greatest problems are likely to arise, sit in accommodation separate altogether from the existing court buildings. The Government will ensure that the District Court will have the necessary facilities to deal with the volume of cases coming forward for adjudication.

The possibility of having rents determined by using rent tribunals instead of the District Court was examined. In the time available it is simply not possible to set up such a system of arbitration, however one might favour it. It would take quite some time before rent tribunals could be fully functioning. This could not realistically be done in time to deal with the volume of cases that will arise immediately this Bill becomes law. I should also mention that quite apart from any administrative difficulties there are also a number of legal and constitutional problems associated with the setting up of rent tribunals that need to be resolved. Once the problem of the controlled sector has been dealt with, I intend, as one of my priorities, to have all aspects of the setting up of rent tribunals looked at and examined in a comprehensive and constructive manner.

Legislating in this area is one of the most difficult tasks to come before this House in recent years. The matters to be dealt with are complex, highly sensitive and have far-reaching social implications. Both landlords and tenants have rights which must be protected in the legislation and the balance between what are essentially conflicting rights is not easy to determine. In the final analysis, however, the Government must fall back on its obligation under Article 45 of the Constitution "to safeguard with especial care the economic interests of the weaker sections of the community" and generally "to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life."

With these objectives before us, I commend this Bill to the House.

Mr. P. Barry

The nub of this problem is contained in Article 45 of the Constitution which was read by the Minister, "to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life". It is because of that we are debating this legislation. Last week I agreed to facilitate the passage of this legislation through the House because something must be done before 25 April if many people are not to be exposed to the shattering experience of having their rents increased by enormous amounts.

We must ask if this is the right Bill and if it does that. Will it be effective in protecting tenants' interests? This House and the Seanad must have two primary concerns when they are debating the legislation. One of these is to protect the tenants. We are at a disadvantage in that we do not know how many people will be affected by this legislation. The other concern is that the Bill must take into account the two decisions of the Supreme Court which seem to say that landlords are entitled to a market rent and to get possession of their premises. The previous Government tried to draft a measure which would be acceptable to the Supreme Court and, at the same time, go as far as possible to protect the rights of tenants living in rent-controlled premises. That substantial Bill was introduced and there have been two temporary Bills since, one of which is due to expire on 25 April. We are up against an exact deadline. The Dáil rises tomorrow night and I presume the Seanad will be recalled.

Mr. Raphael Burke

On Tuesday.

Mr. P. Barry

The Seanad dissolves on 20 April and the temporary legislation goes out of existence on 25 April. We have a difficult job to do in the next 24 hours. I know the Minister appreciates the thin path he is walking on and the danger that this legislation may be referred to the Supreme Court. If that happens what will be the consequences for tenants on 25 April?

Controlled rents have existed since 1915. However, the 1967 legislation which controlled rents was found to be unconstitutional. The difference is that that legislation sought to control rents permanently, whereas the 1915 legislation was introduced as a temporary measure. The Blake-Madigan case finally brought down the 1967 legislation. It did so on the basis, inter-alia, that permanent control was being affected which arbitrally identified certain properties as being controlled and left others as uncontrolled. For example, property was defined as being controlled or uncontrolled by reference to the date of construction. This would not happen today because it is very obviously of an arbitrary nature and was one of the faults found with the legislation by the courts.

While in Government we sought to deal with this legislation which was found to be unconstitutional this year. That Bill was referred to the President under Article 40 and broadly contained the classification which was formerly listed but only for the purpose of phasing it out. That is the essential difference between what the Minister is now doing and what we sought to do. It was agreed that this perpetuation of the classification with consequent interference with the rights of landlords on the open market rent was justified because legislators were faced with the existing state of affairs which was the result of the operation over a prolonged period of time of rent-fixing legislation which also provided security of tenure for certain tenants. The fact that this legislation had been in existence and approximately 30,000 dwellings had been affected by it could not be ignored. It was a fact we had to face up to and the Oireachtas had to take it into account when we were dealing with it.

It should be the primary concern of this House and the Seanad that approximately 30,000 dwellings are affected by this legislation. There are people living in fear at present of what will happen to the rents which they enjoyed, perhaps at too low a rate, for a number of years. In some cases sympathy must be extended to landlords who owned property and who were very badly off and yet had people reasonably well off living in dwellings with a totally uneconomic rent. Such rents did not allow the landlord to maintain the dwelling in the condition it deserved nor did he have an economical rent from the dwelling.

We must look at this legislation, as I have said, from two points of view: what does it do to protect tenants and does it conform with the Supreme Court judgment of 19 January last? Many tenants affected are old and have been in the dwellings for a long time. Many are living on social welfare benefits and none of them could readjust their budget at this stage to take on an increase in rent which might be of 1,000 per cent. For that reason the State has an obligation to ensure that whatever rent increase is imposed on these tenants as a result of the Supreme Court decision, there is some form of subsidisation introduced to help them over this. Section 23 of the Bill sets out how the Minister proposes to deal with that. It states:

The Minister for Social Welfare may, with the consent of the Minister for Finance, make regulations for the payment out of moneys provided by the Oireachtas of allowances to the tenants of dwellings to which section 8(1) relates who would otherwise suffer hardship by reason of increases in the rents of their dwellings.

The correct way to do this is through the Department of Social Welfare even though there has been some suggestion that a separate section of local government should be set up to do it or there should be some other means of identifying such people. In the end it does not matter whether the Department of Social Welfare, the local authorities, the Department of the Environment, or some other institution pay the subsidy. The important thing is that tenants should know that on 25 April, if they are faced with an increase in rent, as a result of the decontrolling of the rents of the houses in which they now live, that subsidisation will be there for them.

We decided to include in the Estimates for 1982 a sum of £6 million for that purpose. That sum was arrived at on the basis that our Bill intended that rent increases should be phased in over a five year period. This meant that in 1982 tenants would suffer an increase in rent to the tune of 40 per cent for a period of eight months. The Supreme Court said that phasing in was unconstitutional. Therefore, obviously the rents will be increased on and from 25 April. The Government have made no provision to increase the sum of £6 million. The sum they are providing is demonstrably inadequate to give the tenants a sense of security. It is a very important part of our function here today to give tenants a sense of security, that on 25 April when their rents are decontrolled the Government will tackle seriously the problem of subsidisation.

As I said, we intended that the only rent increase to be faced by tenants in 1982 for a period of eight months would be 40 per cent. In other words, if a rent of £5 per week went up to £25 per week as a result of a court decision that that was a fair rent for that house, 40 per cent of £20, which is about £8, would be the increased rent payable by that tenant in this year. Under this Bill, if the court finds that the rent is subject to an increase of £20, all of that £20 will be due by the tenant from 26 April. This must have been pointed out to the Government by the Department of the Environment, the Department of Finance and the Department of Social Welfare. They must also have pointed out the basis on which the figure of £6 million was arrived at, but the Government have made no effort to include extra money to bridge the gap between the 40 per cent and the 100 per cent with which tenants will now be faced.

This is a serious defect in this Bill. It is a serious defect in the Government's attitude towards these unfortunate people who will be exposed to vastly increased rents from 25 April. The Minister must give the House an assurance that a Supplementary Estimate will be introduced and that money will be provided to tide over these tenants. They need an assurance that they will not be faced with eviction or extremely high rent increases.

I suspect the Government are engaged in precisely the same exercise which the previous Government led by Deputy Haughey were engaged in in January 1981, that is, paring down the figures in the Book of Estimates to give a false picture of their budget deficit. It is quite obvious from the Supreme Court decision that £6 million is not adequate to subsidise the rents after 25 April.

Anyone who thinks the tenants of these houses are unaware of what is happening should have been looking at the RTE "Today Tonight" programme on Monday night. The tenants in those houses are living in fear of what their position will be after 25 April. They wonder will they be dispossessed. Will their rents go up by an extraordinary amount of money? If their rents go up, will they be subsidised?

That brings me to the second point of difference between this Bill and the 1981 Bill, that is, how these rents will be fixed. Section 13(1) of this Bill provides:

Where the terms of a tenancy are fixed by the Court under section 12, the rent of the dwelling shall be the gross rent reduced by an allowance for any improvements, and any such allowance shall be such proportion of the gross rent as is, in the opinion of the Court, attributable to the improvements.

Subsection (2) is the weakest chain in this legislation. It provides:

For the purposes of subsection (1), the gross rent shall be the rent which, in the opinion of the Court, would be a just and proper rent having regard to the nature, character and location of the dwelling, the other terms of the tenancy, the means of the landlord and the tenant, the date of purchase of the dwelling by the landlord and the amount paid by him therefor, the length of the tenant's occupancy of the dwelling and the number and ages of the tenant's family residing in the dwelling.

That seems to me to be a very loose method of assessing the rent of a dwelling. It will not be applied uniformly throughout the country.

Mr. Quinn

Hear, hear.

Mr. P. Barry

The court is asked to define the rent having regard to certain factors, many of which were detailed as being potentially relevant in the Madigan judgment. The court is not directed how it is to take these factors into account. What happens if there is an impecunious landlord and an impecunious tenant? Who will bear the burden? To what extent is State subsidisation to be taken into account? What happens where the nature and the location of the property suggest that it should have a very high rent and the tenant is unable to afford any increase whatsoever, whereas the landlord is a quite wealthy man? What happens when a wealthy tenant with 17 children is living on the Kerry seaboard in a house owned by a poor landlord, or where a wealthy tenant with two children is living in a house in Dublin owned by a very badly off landlord? How are we to get uniformity of rent?

This section may be unconstitutional. I do not know. One landlord has said already that he will challenge it. I believe it is unworkable. It is a lazy handwashing exercise by the Minister who is passing the problem over to the courts which are ill-equipped to deal with a situation like this. He has said that outside the physical structure of the courts he will set up extra district courts. I suppose that would be a help in one way, but it is not the solution to this problem. When we asked the District Courts in the 1981 Bill to take on this task we defined precisely what they were being asked to do in section 6 (2) which reads:

For the purposes of subsection (1), the gross rent shall be the rent which, in the opinion of the Court, a willing lessee not already in occupation would give and a willing lessor would take for the dwelling, in each case on the basis of vacant possession being given, and having regard to the other terms of the tenancy and to the letting values of dwellings of a similar character to the dwelling and situate in a comparable area.

That is not something that came off the top of my head or that of the Attorney General or anybody within the Department. This is the precise legal definition which has been used for decades and with which the courts and lawyers are familiar. Its application would be a relatively simple matter and the courts would certainly understand how it should be applied.

Subsection (2) of section 13 is being substituted for the foregoing and states:

(2) For the purposes of subsection (1), the gross rent shall be the rent which, in the opinion of the Court, would be a just and proper rent having regard to the nature, character and location of the dwelling, the other terms of the tenancy, the means of the landlord and the tenant, the date of purchase of the dwelling by the landlord and the amount paid by him therefor, the length of the tenant's occupancy of the dwelling and the number and ages of the tenant's family residing in the dwelling.

This is a matter on which a court cannot easily adjudicate and a district justice in County Kerry will not give the same adjudication as his counterpart in Donegal. Different adjudications may be given in two areas within the one county. Last week when the Minister kindly gave me a copy of this section I told him I could not see the section standing up. I have no legal training but even from the point of view of a layman it seems that section 13 (2) is questionable. For that reason we will table an amendment on Committee Stage providing for the establishment of a fair rents tribunal. This is essential so that there should be a uniform application of this section throughout the country.

Section 13 is unsatisfactory and there is a danger that it may be referred to the Supreme Court. For that reason I urge the Minister to bring before the House tomorrow a temporary measure to protect tenants in the event of that happening before 25 April. With all its faults, I should prefer to see this passed rather than see tenants go through a further period of fear and uncertainty. I know that many lawyers will tell the Minister that a third temporary provisions Bill would not be acceptable and the same advice is being given to me. However, I suggest that it would be far more acceptable to have a third temporary Bill than to have a situation where tenants are unprotected after 25 April. I appeal to the Minister, no matter what the lawyers say, to substitute another date and I give my personal guarantee that the measure will be passed immediately. The Minister must ensure the protection of tenants after 25 April in case anything happens.

We will be introducing an amendment proposing the setting up of a fair rents tribunal. We have doubts about the section to which I have referred. We will, however, facilitate the Minister in getting the Bill through this House tomorrow evening.

Mr. Quinn

This is atrocious legislation and yet again the House is being forced into the atrocious position of trying to defend the indefensible and pretending that we are doing it with clean hands. I admire the way in which the Minister has tried, with the political skill which he and his party undoubtedly have, to slide over the problem but the function of Opposition Deputies is very clearly to stake out where substance deviates from fact.

The purpose of this Bill, according to the Minister, is to avoid the undoubted social chaos that would occur after 25 April if this Bill were not enacted. That social chaos has already started. The terrorisation of tenants by landlords has already begun and Deputies such as Deputy Fitzpatrick of Fianna Fáil who represents a constituency similar to mine can testify to this. This Bill will not be a substantial comfort to many of the tenants anxiously awaiting the outcome of our deliberations.

It is useful to ask why we are now debating the fourth Bill dealing with this matter. It is because the Supreme Court decided on 19 February that the previous legislation in the absence of any constitutionally permitted justification clearly constituted an unjust attack upon property rights. Speaking on behalf of the Labour Party, I believe that members of the Supreme Court have disgraced themselves in so partially interpreting the Constitution because, as the Minister stated, all the Articles of the Constitution place certain obligations upon the State and upon individuals. At the end of his speech the Minister stated:

In the final analysis, however, the Government must fall back on their obligation under Article 45 of the Constitution "to safeguard with a special care the economic interests of the weaker sections of the community" and generally "to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life".

If this conservative Government can effectively quote in their conclusion that Article of the Constitution, how can five members of a Supreme Court with their accumulated wisdom say:

In the absence of any constitutionally permitted justification this clearly constitutes an unjust attack upon their property rights.

We could be coming back to the House day after day with different Bills trying to get around the Constitution. As long as we have Supreme Court judges so biased in their defence of property rights and in defence of people who own property we will always end up with this kind of situation.

The nub of the problem is not the legislative inventiveness of the civil servants, the Opposition or the members of the Government. The nub of the problem is not even our Constitution but the bias in the property interpretations of members of the Supreme Court. On whose behalf and in whose interests are the Supreme Court interpreting the Constitution? How can they say "In the absence of any constitutionally permitted justification this clearly constitutes an unjust attack upon their property rights" when our Constitution, riddled with all sorts of reservations quite clearly in Article 45 states that the Government have obligations to the weaker sections of the Community?

An Leas-Cheann Comhairle

The Deputy will appreciate that I have allowed him a certain latitude. We must not challenge the decisions of the courts in the House.

Mr. Quinn

Maybe it is about time we did.

An Leas-Cheann Comhairle

That would be another matter. I am informing the Deputy of what the tradition and convention is in the House.

Mr. Quinn

I am challenging some of these traditions. There are at least 4,000 people in my constituency who will be directly affected by the decision of the Supreme Court, who do not have the secure incomes and pensions that judges have. If the House focuses attention for some time on that particular problem all of the secondary problems generated by this Bill will cease to have the scale of importance we are attaching to them.

Section 13 of the Bill is quite likely to be thrown out by the same group of conservative class-biased judges who threw out section 9 of the previous Bill. There is no reason to believe that there has been some extraordinary transformation in regard to social concern in the Four Courts that will bring about a realisation that Article 45 of the Constitution actually refers to the constituents I am trying to represent in the House. There are 4,000 of those people in my constituency, as far as I have been able to estimate, out of 30,000 in the country as a whole.

Deputy Peter Barry is correct in saying that this Bill is substantially the same as the previous one with the exception of sections 13 and 23. When one looks in detail at section 13 one sees that the Fianna Fáil Government have effectively abdicated any responsibility in trying to establish what might constitute a reasonable or just rent and have dumped it all on the shoulders of the over-worked and unskilled justices who have no particular expertise in this field. Section 13 (2) reads very nicely on the surface. It states:

The Minister and his Minister of State must surely recognise that such an interpretation by a district justice within the framework of the conservative interpretation of the Constitution that we now have direct experience of would be deemed to be an arbitrary and unequal interpretation of property rights and must be construed by the Supreme Court to be unconstitutional. We are right back again to where we are now.

Mr. P. Barry

Without a safety net.

Mr. Quinn

Yes, without a safety net. That is the reason why I strongly support Deputy's Barry's suggestion that the Minister should come in tomorrow morning with two Bills, this one and the safety net of a further temporary suspension of an effective decision. This would give us another three or four months. That is good advice and I am not too fussy if it offends lawyers' sensibility or if it means the Supreme Court judges sitting through the summer. I am not challenging the right of the Supreme Court to make those decisions; I am merely criticising it. If the Supreme Court was more representative of all the class interests in our society we would not get the type of decision we have in front of us.

The purpose of the Bill is to try to avoid the social chaos which will undoubtedly occur if something effective and constructive is not done by this House and the Seanad. The Bill is attempting to say that if it is enacted it will avoid social chaos. The Labour Party's criticism of it is that it will not do that for two reasons. The mechanism of the District Court is totally inappropriate and overburdened to enable it to function assuming section 13 is interpreted in the manner the Minister suggested it would be. It simply will not work and the Minister knows that because in his speech today he talked about increasing the provisions for district justices. There is no mention of this in the Bill so it simply goes on the record as good intentions from the Minister. It is not worth anything to any of the tenants who are involved in this.

The Minister stated that he would increase the number of district justices and that there would be new premises for them in which the courts would operate. How many district justices, permanent or temporary, do the Government propose to appoint? When do they propose to appoint them? Where will the new courts sit? What are the arrangements for increased staff? What locations have already been selected? We are talking about three weeks from now when all of these things can take effect. What provisions have the Government made in last week's budget to pay for them? The answer is that the Government have none. This is an attempt to say in the classic words of the Minister for Agriculture: "No problem, boys, we will see you are all right on the day". There is a problem and the Government have no solution.

Deputy Barry quite rightly pointed out that the Estimate for the Department of the Environment, given that section 9 of the 1981 Bill allowed for only 40 per cent of the gross rent to be paid, was approximately £6 million for 1982. That has not been changed by the change of Government because the take-off date was 25 April. That is for a nine-month period, not a full 12-month period. The Minister of State is aware that on his desk is a revised Estimate which states that in the event of section 9 of the 1981 Bill being struck out by the Supreme Court and full market rent being granted by the District Court, the Estimate is for £13.85 million, but there is no provision in the Estimates for it.

If I or Deputy Fitzpatrick meet constituents in our clinics we cannot honestly tell them there is money available to prevent people being put out on the street, because that money has not been made available. Less than half the money estimated as the sum required to prevent social hardship, calamity and chaos, which we all wish to prevent, has been made available in this budget. As Deputy Barry Desmond said on the budget last week, it is a dishonest document to that extent as it does not tell the whole truth in regard to the actual cost the State will incur in the coming year.

At the risk of some repetition I want to give the House the profile of the kind of person I believe is directly affected by this legislation. These tenants are in the main, at least 60 to 70 per cent of them, elderly people, widows or couples but frequently single, elderly people living on pensions or fixed incomes in dwellings they have occupied for many years, who are now aged 60 or over and who have no economic possibility of increasing their incomes. They are people who have paid their way all their lives and never owed a penny. They have lived in constant fear and uncertainty, if not terror, since last June when the Supreme Court made its first decision in the Madigan case. Many of them have never been in a court and have no desire to be there. They would reject as the final insult of their lives the suggestion that they avail of the supplementary welfare allowance in order to pay their rent as an alternative to being made homeless.

If the Bill goes through in its present form my estimate is that at least 3,000 people in my constituency will be faced with being taken to court by their landlord and hearing the district justice say: "In the absence of any alternative other than the law in front of me I have to fix the gross rent at a sum which manifestly is above what you can pay. I am sorry for your trouble. I suggest you see your local welfare officer. Here is the address of the nearest Eastern Health Board office and perhaps they will be able to help you". For the first time ever these people will now in their own eyes and in their world be forced to take charity in order to live on in their own homes, in a house they have looked after for many years when they could not find the landlord to do the essential repairs, in a house for which they have paid rates when the landlord could not be contacted. Amid neighbours and friends they suddenly find themselves, in the final years of their lives, brought to this situation. If this House gives effect to this legislation, that is what it is now deciding it wants to do. On whose behalf? For whom are we doing this? Are the Fianna Fáil Party totally committed to bringing in this legislation? Do they want to do this on behalf of a group of landlords? If so, how many of them are there? Why are we forced to do this? Why is the House again deliberating this kind of legislation? I think it is outrageous. I have heard no justification from the Minister for it.

The Labour Party opposed this legislation in principle because it is as naked an attack on the weaker classes in our society as has ever manifested itself here. It is doubly outrageous that it was supported by a biased interpretation of the Constitution by members of the Supreme Court who have clearly come down on the side of property as against people. In the Seanad before Christmas, when I spoke on the 1981 legislation before the February 18 decision of the Supreme Court on this point, I said:

There has been a view stated that even the miserable attempt to delay giving the full market value for a period of five years as set out in section 9 will itself be taken to the courts, argued with great skill for expensive thieves by all of the professional classes — my own included; I make no distinction. At the end of the day the Supreme Court will take the holy document of our Constitution and say that notwithstanding that clause which talks about the exigencies of the common good and all the lovely, flowery Articles that talk about the rights of people, notwithstanding that remarkable Preamble that proclaims us to be a Christian nation, when the chips are down, we have no choice because "private property rights rule OK".

That is exactly what is happening. We have no reason to believe, seeing how section 13 has been framed, that there will be any change by the Supreme Court if this document is referred to them, as in all likelihood it will be, by the same landlords with property interests who precipitated this crisis in the first place.

Surely we should be in this House, as we were not more than two hours ago, talking about amending the Constitution or perhaps replacing the members of the Supreme Court in such a way as to make this kind of legislation unnecessary.

An Leas-Cheann Comhairle

The Deputy appreciates that power is given to him, but he must follow it on the lines indicated in the Constitution. Under that he, as a member of this House, has power to act but I remind the Deputy that the convention and the tradition is that, not being a judicial body, we do not criticise to the extent to which he has criticised, the decision of any court.

Mr. Quinn

Perhaps I am not long enough in the House to be bound by those traditions. I do not intend to begin feeling myself bound by them now. I accept fully the advice given by the Chair in its experience but I think it is time that we — not challenge the rights of courts but perhaps criticise their decisions. That is what I am trying to do, to highlight what is the nub of the problem.

Two hours ago the Taoiseach was explaining why there would be only one referendum and why it was not possible to amend the Constitution in any other regard, particularly in regard to private property rights, so that there would be a proper balance between the rights of people and property. For everybody's sake there must be such a proper balance. Unless we have that we shall be in the same situation very soon again. We must take cognisance of that fact: otherwise, the House is being dishonest and misleading the people into thinking that this can somehow resolve their problems. Having made what I think is a core argument about the context in which this legislation has again been introduced, I say on behalf of the Labour Party that, warts and all, we shall be attempting to make it better. We have submitted a series of amendments which will be circulated in due course. It is not clear when the Committee Stage will be taken——

Mr. Fitzpatrick

(Cavan-Monaghan): Tomorrow.

Mr. Quinn

Then perhaps the Minister will have the night in which to reflect on the merits of the amendments we are putting forward. The same applies to all Members of the House.

First, we say that the District Courts alone should not have this responsibility. We recognise that the setting up of a fair rents tribunal is a complex and comprehensive procedure and cannot be done overnight. Surely the Minister will accept in the context of the comments I have made that in the initial stages provision should be made under this Bill to enable the Minister for the Environment at a future date to establish a fair rents tribunal and to have it referred to in this legislation, so that we begin with the courts and the provisions of the Bill can, in time, be transferred to the fair rents tribunal by ministerial order. I think that is a reasonable proposal and that it meets the spirit of the views expressed with such passionate vigour by Deputy Burke in this House just before Christmas when he was Opposition spokesman for the Environment. I do not expect there has been a great transformation in his commitment over the last few months. Therefore I will welcome his acceptance of this amendment tomorrow morning.

I am mentioning these amendments so that Members will have time to reflect on them because the normal process does not occur. Another point I want to raise is the way a district justice will have to try to do the impossible, that is establish a fair rent. The district justice is being asked to have regard in the establishment of the gross rent to eight different categories of conditions, such as, the nature, character and location of the dwelling, the other terms of tenancy, the means of the landlord and the tenant, the date of purchase of the dwelling by the landlord and the amount paid by him therefor, the length of the tenant's occupancy of the dwelling and the number and ages of the tenant's family residing in the dwelling. We propose to submit an addendum so that the district justice, when establishing a fair rent, will also take into account the prospects of suitable available accommodation being provided by the local authority in that area. We are doing that because it would be an admissible defence for someone to argue in a court that if the district justice sets a rent, having regard to all the factors listed under section 13 (2) and does not take into account the housing supply in that area, and if that person is unable to pay the rent, he will effectively be made homeless.

Under the provisions of this legislation the district justice should be able to hear a statement from the legal defence of the tenant, or a public representative acting on behalf of the tenant, that the housing authority do not have the capacity to house that person. I know from experience that in cases where the controlled dwellings legislation does not apply, landlords have said in court that it is the responsibility of the State or the local authority to house people and if the person in question cannot pay the rent he should present himself to Dublin Corporation. It is right and proper that the justice should inform himself of the shortage of such accommodation and take it into account when determining the rent. A number of minor amendments arise but I will argue them on Committee Stage.

I want to talk about the substantial difference between this Bill and the 1981 legislation, although the intent of the latter was substantially the same. I want to refer to section 23. In my view, the Department of Finance and the Department of the Environment have succeeded in winning a private battle behind closed doors with the Department of Social Welfare over the question of who gets to carry the can in administering this inadequate sum of £6 million. This battle has been fought with great vigour over a very long time. I can understand why the relevant Departments were very anxious to dump this on any Department other than their own. They know in their hearts that £6 million is not enough and that the administration of the scheme will be extremely difficult. They also know that homelessness is an emotive question and will produce a lot of constituency pressure. It would be far easier for the Minister for the Environment or his Minister of State, notwithstanding the reality of collective responsibility, to be able to say that that is a problem for the Minister for Social Welfare and that while he would like to be able to help, in the circumstances he is unable to do so. I can anticipate the situation where the Chair will have to rule certain questions to be disallowed or to be the responsibility of the Department of Social Welfare because even though these are housing matters and the Department of the Environment have responsibility for housing, where a person is about to be made homeless it is a matter for the Department of Social Welfare.

This is the stuff great novels and television serials of a political nature are made of, but Deputies must remember that the pawns in this game are innocent people who are going to be made homeless. I know from studying the situation that the most obvious way these tenants should be subsidised is through the Department of the Environment, but there are two arguments against that. The Department do not like taking on extra responsibility and resisted the landlord and tenant legislation over many years. That resistance is still there. The Department of Finance, who played a silent role, are even more anxious to control this scheme through the supplementary welfare allowance system because their economists have put on the table of the relevant Ministers of the day that this subsidy scheme, and the implications of this legislation, are a bottomless pit in terms of the money that could be required to be paid out by way of subsidy to prevent tenants from being made homeless. We all know that is the truth. Why not accept and recognise it?

At best, we have a crude estimate that the number of people involved is 30,000. Let us take one of the 4,000 involved in my constituency, say, somebody from Pembroke Road or Rathmines, an area where there is a high demand for flats, who is currently paying something like £20 a week or even £5 a week, which would be high for some controlled rents. The rent fixed by the District Court, even making allowances for certain improvements and alterations that have been made, could be an extra £30, bringing it up to £35. This legislation suggests that a private individual presents himself each week to the social welfare officer to get the supplementary welfare allowance to pay the balance. In some cases that supplementary welfare allowance will be larger than the old age pension or widow's pension that person is receiving. The sums involved will constitute a major security problem for social welfare officers and the administration of the scheme will be very difficult.

The whole area surrounding section 23 is a veritable can of worms which the Department of the Environment, for the time being, have successfully foisted on the Department of Social Welfare. The net social consequences of this are potentially disastrous. The Department of Social Welfare, operating through the health boards, do not have the necessary expertise in the area of housing to deal with this problem. They have said this in public and in private. Yet we are being asked to put into law something which the people involved in implementing this scheme have repeatedly claimed they are unable to do effectively. That is the makings of very bad law. This time round, having regard to the change of Government, no one can claim to be uninformed in advance. None of us can come back in six month's time and say we did not anticipate this would happen when the legislation was going through. That is not the case; we do know. We know the Department of Social Welfare cannot operate under section 23 satisfactorily, and they are bitterly opposed to this scheme being foisted on them. I suggest that if that is not the case the Minister should deny it but in the absence of any such denial I will take it to be the case. Having regard to that, will the Minister be able seriously on Committee Stage to stand over section 23? I ask the question because at this stage the private tenants associations and the individuals who will be affected directly by this legislation are not concerned with the private property arguments of our Constitution. They are simply concerned as to how they will survive after April 25. Their problem is the question of how they are to pay the increases in rents that are being demanded of them. They are anxious to know what this Government and the previous Government mean by the assurance that undue hardship will be avoided by means of the moneys made available in the budget. That is the concern and the fear of these people but neither in the Bill nor in the Minister's speech is there any suggestion that those fears can be allayed.

It is a sad day for this country that we are here attempting to manoeuvre our way around the effects of a Constitution which a minority of the people of this State took upon themselves in 1937 and that as an independent State we are finding ourselves more constricted by our laws in relation to property and class than was the case under the laws of a foreign power, mother England. It is an extraordinary indictment of the Republican traditions in this House that the provisions of the de Valera Constitution are creating a new generation of gombeen landlords who will have greater security of legal power to exploit the weaker sections of the community than was the case in respect of those laws which England foisted on us. It is extraordinary that with our own economic and political independence this is the kind of millstone we have strung around our collective necks.

The House should ask itself some questions. In whose interest are we acting today? Where are the thousands of landlords, where are the quotas of landlords' votes that are involved in imposing this kind of legislation? Where are the myriads of property-owning people who have interest in the Supreme Court sufficient to bring about such a distorted interpretation of our Constitution and where are they now that they can force the republican party to bring in this legislation?

An Leas-Cheann Comhairle

Perhaps Deputy Quinn would wish to think again about an accusation that members of the Supreme Court did other than that which they regarded as being in compliance with their interpretation of the law or that they had landlords or anybody else to influence them.

Mr. Quinn

I am very grateful for that interruption because if the allegation did not stick the first time I wish now to stitch it into the record. With the protection of this House I wish to criticise the decision of the Supreme Court, not their right to make that decision——

An Leas-Cheann Comhairle

The Deputy has not got such freedom in the House.

Mr. Quinn

I am prepared to take my chances anyway. The judgement of the Supreme Court set out that in the absence of any constitutionally-committed justification, the 1981 Bill clearly constitutes an unjust attack on property rights. The Minister for the Environment quotes Article 45 of the Constitution and says that the Government must fall back on their obligations under that article to safeguard with special care the economic interests of the weaker sections of the community and generally to promote the welfare of the whole people by securing and protecting as effectively as possible a social order in which justice and charity shall inform all the institutions of the national life. It may be that because I am not a lawyer my criticisms are more stark and naive than might otherwise be the case, but I venture to suggest that the Supreme Court did not get as far as Article 45 before making their decision but stopped at Article 40——

An Leas-Cheann Comhairle

The Deputy will accept that this is the third time I have drawn his attention to the fact that he is not at liberty to criticise in this House judges or their decisions. I indicated earlier that Article 35 allowed the Deputy to move in that direction if he would wish to do so.

Mr. Quinn

I do not wish to withdraw any of the remarks that I have put on the record of the House and if there is action that must be taken against me, so be it. I am simply saying that as a result of this law being enacted, 4,000 defenceless people in the constitutency that I represent will be considerably weaker. It is an outrageous day for Irish history that the House should be forced to contemplate this kind of legislation.

Mr. Fitzpatrick

(Dublin South-Central): I am sure Deputy Quinn appreciates the importance of our having some legislation on this matter through before 25 April. Only a few months ago I was speaking from the Oposition benches on the Bill brought in by the then Government. We were all hopeful then that that Bill would be constitutional but as we know now certain sections of it have been found by the Supreme Court to be unconstitutional.

The Bill before us now is an improvement on that other Act and those sections which were found to be repugnant to the Constitution are not included. We hope, therefore, that on this occasion the Bill will be found to be in accordance with the Constitution.

The Supreme Court decision has resulted in much hardship and distress to that section of the community affected by such legislation. We know that the legislation will affect the most vulnerable section of the community. It is all right for Deputy Quinn to criticise the Bill but I am sure that if he could suggest amendments that would improve the Bill and still allow it to stand up in the Supreme Court, the Minister would consider favourably any such amendments. However, we are bound by the decision of the Supreme Court and they in turn must have regard to the provisions of the Constitution.

Criticism might be levelled at some landlords in this town and perhaps in other places who have moved hastily in regard to notifying the tenants of increased rents. I am aware personally of letters from various landlords to tenants indicating that increased rents would be required of them and asking these tenants to submit details of their annual income and of their entire family circumstances. I know of a few instances in which increased rent has been demanded. This was a high-handed approach on the part of some landlords. They moved before the holding Act expired and before the enactment of this Bill. Those landlords should know that they have not the right to act in that way. It is obvious that they have terrorised tenants and caused undue hardship to them. The tenants we are talking about are people who are not in a position to defend themselves.

This Bill will go a long way towards meeting the requirements. Undoubtedly the landlords will, as they have said already, challenge certain sections of it. I listened to people the other night stating that their intention was to do so. Whatever happens, we are dealing here with a section of the community who certainly will not be in a position to pay market rents for many of the houses they occupy today. The history and background of these people can go back 50, 60 or 100 years and in many cases the fathers and grandfathers of the present occupants of the houses lived in those houses. Therefore, these people differ substantially from those who occupy uncontrolled rent dwellings. The average person moving into an uncontrolled flat has the intention of moving from it as quickly as possible. It serves as a temporary measure, but especially if such people are young married couples their intention is to move out at the earliest possible moment and put a deposit on their own home.

The people in rent-controlled dwellings look on these houses as their homes. Their grandfathers and fathers were there before them and so, naturally, they have settled into a community and have become part of that community. Now they find that because of a Supreme Court decision all their security is dismantled. They could become homeless or a landlord could demand rent which would be entirely beyond their means to pay. That is what we are trying to regulate in this Bill. It is very difficult to get a perfect answer to this complicated problem. I am not sure of the exact number involved, but I am told that it is between 35,000 and 45,000 dwellings, which is a substantial number. The majority of these houses are in urban districts and probably in the larger cities. Quite a substantial number are in Dublin and many more are in other cities throughout the country.

I suppose the two most important sections in the Bill are those dealing with fair rent and security of tenure, and one is as important as the other. We want to make sure that those who occupy such dwellings together with their spouses are guaranteed the right of tenure during their lifetime. This is as it should be. The section also makes provision as regards sons and daughters, and anyone reading the definition of what constitutes a family will realise that it is fairly broad and embraces all degrees of relationship. However, in certain cases people who may not be related, strictly speaking, to the tenant have lived in a house for perhaps 15 or 20 years and the section does not go far enough to embrace that category of person. It confines itself strictly to relations. That may cause problems for people who have lived with certain families through the years, perhaps all their lives, and maybe in the evening of their lives at 50 or 60 years of age they find that they have no guarantee of tenure under this Bill as it is at the moment and are unable to pay the rent.

When the former Bill was going through the House I hinted that I was not too satisfied that the District Court would handle the number of applications and decide what were fair rents, taking all the clauses of this provision into consideration. It will cause problems, particularly in the District Court in Dublin. I am glad to hear the Minister's indication of a fair rents tribunal. Undoubteldy we will have overcrowding in the courts and an avalanche of applications from various landlords who will be seeking to have their rents adjusted at an early date. A considerable number of personnel will be necessary in the courts to do research, work out what constitutes a fair rent and assess the background of all the applicants. It will be important also to ensure that the tenant is equipped with proper personnel and backup services. Many the tenants of my acquaintance certainly could not handle their applications without some professional advice. Many of them have never been in court previously. I am glad that the Minister intends to remove this out of the element of the courts to some environment which will not cause such harassment to some of these people. However, they will still require professional advice.

Many landlords have very sophisticated operations. Some in this city, such as Folio Homes Ltd., Associated Properties Ltd. and so on have no problem in presenting their case well documented to the courts and proving why their rents should be increased. The same type of services should be available to the tenant. Many tenants are completely ill-equipped to make their application in a positive way, to state what their input was into the home during the years, what repairs they carried out and so on. This will require expert advice from an engineer, architect or costing expert who can present the account to enable such tenants to put forward an argument why the rent should not be increased to a named figure. Whether we like it or not, the district justices will adjudicate these cases and they will have to look at the facts put before them by both the landlords and the tenants if they are to arrive at a fair judgment.

A section of the Bill puts liability for costs on the landlord if a landlord brings a tenant to court, but in the majority of cases probably it will be the reverse and the tenant will be taking the landlord to court seeking a reduction in a rent which he considers excessive. I do not see any provision whereby the landlord will then be obliged to pay the costs. Therefore I hope to see some provision whereby this can be operated through free legal aid. I am not sure whether the tenants can apply for free legal aid or whether they can get advice from the Free Legal Aid Committee as to their rights, how they should process their applications and matters of that kind.

Many of these houses, especially in the inner city, were bought many years ago at a very reasonable price by many of these landlords. We all know of the Artisan Dwellings Companies which provided housing in this city at a reasonable cost. It must be said that they fulfilled their obligations admirably over the years. Now this company ceases to exist, at least many of their properties are no longer held by Associated Properties. I would hazard a guess that something in the region of 1,500 houses were affected and taken over by Folio Properties within the past 18 months.

When deciding what is a fair rent I would hope that any judge would have regard to the length of time the property has been in the hands of the landlord. That fact will play a major part in determining what rent should be charged on houses such as these, because it must be remembered that Folio Properties have come into possession of these houses within the recent past. Therefore I would hope there would be a reasonable adjustment of the rent, basing any decision on the fact that these houses were purchased at a very reasonable price by that company. In that regard a reasonable adjustment should suffice in giving a reasonable return to landlords on what they paid for those houses. There are many such cases on which a court will have to adjudicate.

Of course there are also other cases which will be even more complicated, cases where tenants or their families may have been in occupation of the houses for 50, 60 or 100 years. These are the complications I foresee arising in the District Courts. That is why we will need qualified personnel to ensure that the tenant gets a fair deal. It is the tenants about whom we are concerned here. We are aware from personal experience that many tenants can ill-afford the adjustments that would have to be made when establishing a market rent. We are aware also that the value of property has far exceeded the rate of inflation and the consumer price index in the past ten years. There have been many contributory factors, such as short supply coupled with ample demand, but one could not take the market price of a house today because that does not relate in real value.

These are the types of criteria the District Courts will have to use when deciding what is a fair rent. I would hope that these courts would take into account the length of tenancy and the means and ability of the tenant to pay rather than applying the market value or rent. Many tenants of whom I am aware could not possibly afford to pay market rents at today's going rate. There is no doubt that the State has an obligation in this respect under the Constitution to look after the weaker sections of our community. It will indeed be a complicated calculation to establish the proper subsidisation of such people so that they may be helped in this respect.

I note that there is in the budget provision for £6 million for this purpose. It is extremely difficult to ascertain how much such an exercise will cost at present, because all tenants' cases will be judged individually, and laying down a blanket figure for subsidisation at this point would be impossible. We shall have to await the decision of the district justices, taking this section into consideration, on what is or constitutes a proper rent having due regard to the nature, character and location of the dwelling and other provisions, the tenancy, means of the landlord, the date of purchase of the dwelling by the landlord and the amount paid by him. As Deputy Quinn said, subsidisation will be substantial in some cases if account is taken of the value of the property, the area in which it is situated and so on. This will be a complicated exercise, but to run away from it would be futile. We must legislate for the situation.

I believe that we in this House have no choice but to ensure that some Bill is implemented before 23 April. I sincerely hope this Bill stands up constitutionally. However, like other speakers, I feel it would be advisable to make some provision in the event of it not doing so. We know what would be the situation if no legislation existed at that time. It is obvious that landlords could move ahead, uncontrolled by any legislation whatsoever, and take possession of their dwellings, something that must be stopped at all costs. Certainly I should like to see some holding operation to ensure that some legislation obtains in the event of this Bill being deemed unconstitutional or being challenged by the Supreme Court. What the President may do at this time is a matter for him. Bearing in mind that the House will be in recess for Easter, it would be advisable that some such measure be on hand to ensure a holding operation in the event of this Bill being deemed unconstitutional.

There is an organisation in this city called the Private Tenants' Action Group, with headquarters in Gardiner Street, who have carried out research into the type of tenant likely to be affected and what they feel would constitute requirements to meet the difficult problems many of their members will encounter or are encountering at present. Probably they have lobbied many Deputies on their views and the problems their members face. I have received documentation from them over the past 12 months. Naturally they are concerned, because they have carried out a fairly intensive survey of the tenancies of many of their members, their incomes, age, background, work and so on. The picture they draw is not very promising as regards their members' ability to pay any substantial increase in rents. The majority of their members are old people who have lived in the area for a long time, quite a number of whom are pensioners, in the lower income category. They have made certain submissions to me, some of which are included in the Bill, some of which are not, and which I might read out for the benefit of the House. They specify five or six provisions which might meet their requirements.

The letter is from Mr. Murphy, secretary of the Private Tenants Action Group, St. Francis Xavier Church, Gardiner Street, Dublin. The first request of the group is that a fair rents tribunal be established consisting of a judge and six other members. When the original Bill was going through the House I made that suggestion. Today the Minister said he was sympathetic towards the establishment of such a tribunal and I am aware that he is committed to looking into the question of establishing such a tribunal. There are complications involved but I have no doubt that the Minister will deal with this matter speedily. The secretary of the action group points out that they are anxious that the landlords' and tenants' economic circumstances and the character and situation of the house or dwelling be taken into consideration when rent is being settled by the court. That is covered in the Bill. The group also propose that in cases of hardship created by increases in rent State assistance be provided and not only for old age pensioners. I take it that the group are anxious to cater for those on a low income.

Another proposal of the group was that the term "member of family of a tenant" be extended to include any other person who has resided with a tenant for a period of five years for the specific purpose of providing domiciliary care and attention. As I mentioned earlier, that is not contained in the Bill. The group also propose that a member of the family of a tenant who dies be entitled to continue the tenancy for a period of 20 years beginning on the commencement of the Act or five years from the death of the tenant or spouse, whichever period is the longest. They also suggest that the terms of the tenancy shall not be enforceable by a landlord until he has issued the tenant with a rent book, in cases where this has not already been done, and for the purpose of recording each payment of rent rent books shall remain in the tenants' possession.

That group submitted those requests to me and I am sure other members received a copy. A majority of the suggestions are contained in the Bill. My view is that the ruling of the court on rents will be important. A survey was carried out in Dublin and other centres of the age and circumstances of tenants involved. It was found that 50 per cent of the tenants involved are more than 66 years of age, that 27 per cent are between 51 and 60 and 10 per cent under 50. The majority of the tenants are not in a position to meet any additional costs. Many of the tenants are widows who live alone.

Down through the years in this city we did not develop the full concept of rented accommodation. We have concentrated on getting people to buy a house. We will have to concentrate on providing more rented accommodation. Of course, what will follow from that will be a prices spiral, because demand will be greater than the amount of accommodation available. I accept that the National Coalition endeavoured to encourage the provision of such accommodation in cities and large centres of population. In Dublin, particularly when the university year commences, there is a great problem about rented accommodation and that has encouraged landlords to increase their rents substantially for students. That problem has been neglected by all sides and we have failed to cater for such expansion. As a result those who have had the benefit of controlled rents up to now will have to pay the full market price. I am sure many of those people, if they had not been living in controlled rented accommodation, would have moved out and bought their own homes. Many of the pensioners would have moved out and sought accommodation from local authorities. The fact that they were living in controlled rented accommodation encouraged them to stay on and it is unfortunate that in the evening of their lives they must face this problem.

A fair rents tribunal consisting of professional personnel is needed in the long term, because we will have this problem for many years. More than 35,000 houses are involved and, undoubtedly, many disputes will arise between landlords and tenants. The tribunal would be the best body to resolve the many difficult arguments that will arise between landlord and tenant. It will be difficult for those who have been living in dwellings for many years to establish exactly their input in the house. I have no doubt that but for such input many of those dwellings would be derelict. In the centre of this city some landlords have allowed such buildings to go into decay, but many of the dwellings that are in good condition have been maintained at considerable expense by the tenants who looked upon them as their homes. Many of those tenants would like to be given the opportunity to purchase such dwellings and I hope that a scheme will be devised to help them to do so at a reasonable price. They should be given an opportunity to purchase, just as are tenants of local authority houses. It would not be difficult to devise such a scheme. Other Bills will be necessary to regulate this matter and I hope the Department of the Environment in the meantime will introduce a scheme to encourage landlords to sell such property to the tenants, taking into consideration the length of the tenancy and the amount of work carried out by the tenants down the years.

I hope the substance of the Bill will stand up in court. If it does not, we will be back to square one. This will create greater hardship for the tenants, many of whom do not know exactly where they stand at present. They are certainly worried by rumours which in my opinion, have been circulated prematurely by some landlords. Many landlords have notified their tenants of their intention to raise rents. I know of a few cases where a claim was actually put in for a raised rent which in the case of one old lady was astronomical—more than her income for the week. How could she possibly try to meet that demand?

I trust that the Minister will tell some of these landlords that they have no right to increase their rents until such time as a proper Bill goes through this House and makes provision for this. That is of vital importance. I have seen letters to this effect received from Associated Properties, which is a reputable company, a company which should know exactly the implications of this Bill. We are all concerned and wish to be fair to both sides.

Deputy Quinn criticises the Bill as having no substance. If he could bring into this House within the present Constitution a Bill which would be better than the present one, I am sure it would be very welcome. If we are going to move in the direction which Deputy Quinn advocates, we must consider some type of referendum to try to change the Articles of the Constitution. That is another day's work. We are trying here to be fair and bring in the best possible Bill under the present circumstances to make sure that the tenants are fairly protected. Without some such legislation I do not have to spell out the consequences of the actions, not by all landlords but by some—the advantage which would be taken of the weaker section of the community which cannot protect itself and which the courts cannot protect either without some such legislation as this. I am quite convinced that, if the section dealing with the rents is considered and interpreted fairly, it will go some way towards regulating and keeping rents within a reasonable limit, taken in conjuction with the tenancies.

I ask the Minister to consider the fair rents tribunal, some holding operation in the event of this Bill not being successful and the protection of the tenant when the legislation is eventually processed in the courts. Wherever we find the money, we cannot allow old age pensioners, people of little means, to be thrown out on the streets. I do not believe that anyone in this House would allow that to happen. I know that £6 million has been already earmarked. That may be a start. I do not think anybody in this House could now be positive about the total cost involved. Everyone in this House will agree that every measure should be taken to ensure that those who can ill-afford these exorbitant rents will be protected by this House, whether it is by way of the health boards, social welfare or the Department of the Environment. I am not sure how this scheme will operate.

We have a problem on our hands which must be resolved to the satisfaction of all. I certainly am coming down on the side of the tenant — to try to protect him or her. Many landlords are well equipped to carry disadvantages which may accrue to them by virtue of the interpretation of a reasonable rent to the tenant. They are more able to carry this burden than many of the unfortunate tenants known to me now, who are worried out of their wits wondering if they will have a home next year, or be able to afford it, or be evicted. I would like to see their fears allayed as quickly as possible by this Bill. When it is properly processed, I hope that it will give the necessary guarantees and security to these people.

Mr. Fitzpatrick

(Cavan-Monaghan): Following the judgement of the Supreme Court in the Blake and Madigan case and the judgement of the same court on the Rent Restrictions Act of 1981, as from 25 April next, unless a valid law in accordance with the Constitution is introduced, the position will be that there will be no restriction on what rents may be charged. The legal rent will be the contractual rent. There will be no restriction on the right of the landlord to recover possession, which he will be able to do at will. I need not spell out in this House the enormous hardship which that will present for thousands of our citizens.

That situation has arisen out of the interpretation by the Supreme Court of the Articles in the Constitution dealing with private property and with social justice. One might think that the Supreme Court, in its judgement, was dealing with fair rents — nothing could be further from the truth. It did not set out to do that; it was not asked to do that. It was asked to interpret the Articles in the Constitution protecting private property, as they are affected by the social Articles of the Constitution.

I will preface my further remarks by saying that I practised as a solicitor for many years, but have not practised as a solicitor since 1973, nor have I any interest in a solicitor's practice, my former practice or otherwise. Having said that, I deplore, and disassociate myself and my party from the unwarranted, unfair and quite superficial attack made by Deputy Quinn on the members of the Supreme Court. That attack, in the long run, will do no good but a great amount of harm, to the very people whom Deputy Quinn seeks to protect. In the ultimate, our courts stand between might on the one hand and weakness on the other, between wealth, power and influence on one side and poverty, loneliness and lack of power and influence on the other. If we were to indulge in this House in judge bashing — whether it be against district justices, Circuit Court, High Court or Supreme Court judges, or if we were to downgrade these offices, we would be doing a bad day's work for the poor, the defenceless and the weaker sections of our community. About that I have no doubt.

Nobody is infallible. The Supreme Court judges were interpreting certain Articles of the Constitution, particularly the Articles which protect the rights of private property. They delivered a judgment on that subject having regard to all the other relevant Articles of the Constitution.

Deputy Quinn claimed he could solve the whole thing off the top of his head. He said the judgment was biased, partisan and class-influenced. As a layman and a public representative, I would not be discharging my duties if I did not disassociate myself from that and denounce his attack. The courts can only administer the law as we make it and send it to them. If the law is at fault the courts are not to blame, it is the fault of the Oireachtas. If the Constitution is fettering the discretion of the judges and we do not agree with that, then let us amend the Constitution or invite our sovereign people to amend it.

We were told today at Question Time, in friendly exchanges I had with the Taoiseach, that there was no proposal to change the Constitution and no need to change it unless perhaps in the long term In that situation how unfair can you be? I regard the Supreme Court as a liberal court and I think it is so regarded by everyone. To attack it in the way which was done today is most unfair and unhelpful to the poorer and weaker sections.

The law in relation to rent control and rent restrictions goes back to the First World War. The Acts were introduced about 1919 when there was a great scarcity of houses and a tendency to exploit tenants. Again, in the Second World War, other rent restrictions Acts were introduced, all of a temporary nature, but rents are at present being fixed by the courts by reference to rents that were prevailing in 1914. One section of one class of rents is fixed by reference to rents that were charged and payable in the forties, fifties and up to the middle sixties. Of course, the value of money has changed enormously since those dates and inflation has completely and utterly changed the rents that were payable in those times, so much so that it could be said that the rents fixed by reference to those criteria were meaningless and, if they were meant to be realistic, are absurd.

There is an obligation on the Government to tackle a twofold problem which has been presented to them by the Supreme Court judgements. The first problem they have to deal with is to introduce and enact a Bill which will, as far as possible, relieve the unfortunate tenants from the hardships inflicted by the Constitution as interpreted by the Supreme Court. They can only do so if the Bill which they introduce is constitutional. The Government will not be helping anyone, least of all the tenants who need help and protection, if the Bill which they introduce and seek to enact is unconstitutional because if it is, it will be held to be unconstitutional by the Supreme Court and will have no effect.

The Government must also relieve the tenants in question, tens of thousands of people, from the hardship that will be imposed on them as a result of the change in law. Rents will go up drastically unless the Constitution is changed. It is the duty of the Government to protect tenants from this hardship, particularly tenants who cannot afford the rents to which they will become subject. It could be argued that over the years as a result of the change in the value of money, inflation and the rents being tied to 1914 and 1941 rents, successive Governments have been discharging their social obligations to one section of the community by enforcing another section of the community to carry that burden. There are some landlords who got in on the act, so to speak, who bought these houses knowing they would be controlled and hoping they would be decontrolled. I have no sympathy for that class of landlord and I hope the law can provide that he will not make a quick buck on houses which he bought for little or nothing because they were controlled in the hope that they might be decontrolled. He should be prevented from reaping a rich harvest and the Minister will have my support and, I believe, the support of this party in any effective proposals he has to deal with that problem. There are rich and poor landlords, more rich than poor, but there are perhaps widows who were left with houses which they had hoped would give them an income for the rest of their lives but which, because of rent restrictions, bring in no income.

This is a rather limited debate by agreement and I do not want to keep out other speakers. The problem here is twofold. First, we have to introduce a Bill that will be constitutional and alleviate, as far as possible, the hardships that the law as it now stands will inflict on tenants. Second, through the social welfare code we must compensate tenants for the increases in rent that will be inevitable. This Bill proposes to do these two things. But we have to look at this Bill in the light of the judgments that I have been speaking about, the judgment in the Blake and Madigan case on the 1960 Act as amended and the judgment of the Supreme Court on the 1981 Act.

The most important section in the Bill is section 13 which fixes the rent. Under the law as it now stands the landlord is entitled to the market rent. If there was any doubt about that following the judgment in the Blake and Madigan case there could be no doubt about it following the judgment on the 1981 Act because the judgment on that Act dealt briefly with the proposal to phase in the increase in rents up to the market rent. The judgment said that the just rent is the market rent, that it was proposed to keep the landlord out of the market rent or the just rent in law for four or five years and that that was not on. Without more ado the 1981 Bill was rejected by the 1981 Act. That is the law as I understand it. Here in section 13(2) it is proposed:

For the purposes of subsection (1), the gross rent shall be the rent which, in the opinion of the Court, would be a just and proper rent having regard to the nature, character and location of the dwelling, the other terms of the tenancy...

If it stopped there it would be strictly in accordance with the Supreme Court definition of what a just rent should be but it goes on to say:

...the means of the landlord and the tenant, the date of purchase of the dwelling by the landlord and the amount paid by him therefor, the length of the tenant's occupancy of the dwelling and the number and ages of the tenant's family residing in the dwelling.

While all those considerations may be desirable in order to get what would be a fair rent for the tenant, they have nothing to do with fixing a rent in accordance with the Constitution. Let us stop talking about the Supreme Court and talk about the Constitution because the Supreme Court was only interpreting the Constitution.

What is the purpose of introducing into this definition the means of the landlord and the means of the tenant? It is for the purpose of fixing some sort of equitable rent. But that is the very thing that the Rent Restrictions Act has been trying to do, to fix a rent less than the market rent, and that is why it was shot down by the Supreme Court. What is the purpose of introducing the date of purchase of the dwelling by the landlord and the amount paid by him? It is to decide what would be a fair return to the landlord on the money spent by him. Again, that is very desirable but it has nothing to do with the constitutional provisions for protecting private property. I do not know what the length of the tenant's occupancy of the dwelling means. The number and ages of the tenant's family residing in the dwelling is also included. That is another highly desirable thing, obviously put in for the purpose of deciding what the tenant can pay, what the tenant's obligations are, how much of his family income he can pay in rent or what it would be fair to ask him to pay. Again it is very desirable but, having regard to the judgment on the 1981 Act, it has nothing to do with fixing a just rent for the premises in accordance with the Constitution. I have no doubt that that section of the Bill will be rejected by the Supreme Court at the first opportunity. I would even go further and say that the Supreme Court, in dealing with that section, will be bound by its decision in the Madigan case and its decision on the 1981 Act. I do not pretend to be a constitutional lawyer. I do not pretend to be highly skilled in law. But I do profess to have a general knowledge and a bit of common sense and I would not mind betting that that will not stand up. If it does not then we are back to square one; we start all over again. It is like dealing with the revenue commissioners in a smuggling case. One offers them £100 as a fine and they do not take the £100 but they will not tell one what they will take and then one has to come again and offer them £150. It is that sort of an auction. That is the sort of position we will be in here. If that section is shot down by the Supreme Court then the whole Bill will fall and we will be back to square one.

I want to refer to section 23 which proposes to compensate tenants affected by increases in rent by way of rent allowances. It is the vaguest thing I ever saw. It says:

The Minister for Social Welfare may, with the consent of the Minister for Finance, make regulations for the payment out of moneys provided by the Oireachtas of allowances to the tenants of dwellings to which section 8(1) relates who would otherwise suffer hardship by reason of increases in the rents of their dwellings.

There is no obligation on the Minister for Social Welfare, after consulting the Minister for Finance, to compensate these people, and there should be. The word "shall" should be substituted for the "may". On the one hand we note that the rents will go up unless the law is changed, and that might take a referendum. Even the Bill as it stands visualises the rents being increased.

As regards compensation, there is an indefinite promise made to do something about it. It is far too vague. I would go further than some of my colleagues and say there is no chance of section 13(2) standing up in view of the Supreme Court judgment. I am 100 per cent in favour of those who say a Bill should be introduced tomorrow to extend the temporary provisions Act which will freeze the law as it is and prevent rents being increased or tenants being ejected for a reasonable time. That should be done.

A sum of £6 million has been provided in the budget for section 23 of this Bill. I am told it would take £25 million to meet the Bill that would be presented under that heading. I agree with those who spoke about a film they saw the other evening. My approach to this problem is a realistic one. There is no point in standing up here and spouting out pious platitudes that we wish to help the unfortunate tenants if we know we are hammering our heads against a stone wall and that the only effective way in which we can remedy the situation is by changing the Constitution.

There is no point in Deputy Quinn making a speech that might read very well to those who do not understand it. There is no point in him attacking judges and saying they should fix a fair rent when we present them with a Constitution which says they may not. There is no use in attacking judges——

An Leas-Cheann Comhairle

It was for the reason that we might have an attempt at the defence of judges that the Chair reminded Deputy Quinn that it was not in order for him to proceed in the fashion that he did. I ask the Deputy not to establish here a court of judgment on judges or their decisions.

Mr. Fitzpatrick

(Cavan-Monaghan): What I am doing is explaining the false premise on which Deputy Quinn was attacking them. I wanted to point out that judges can operate only within the law and the Constitution. I am making the case that, if we are not satisfied with the machinery available for controlling rents and the Constitution which controls the laws we may enact, then we should change the Constitution.

An Leas-Cheann Comhairle

That is a valid point.

Mr. Fitzpatrick

(Cavan-Monaghan): I do not stand for exorbitant rents. I saw a film the other evening on certain flats in the city and these were a positive disgrace, unfit for human occupation. Surely there must be enough machinery available to housing authorities to close these places down. They are health hazards both from the point of view of being infested with rats and bringing about disease. They are structurally unsound. The way to deal with the problem is not through rent control but through closing these places. That might or might not suit landlords. There should be an obligation on housing authorities to house these tenants elsewhere.

As my namesake and colleague, Deputy Fitzpatrick, said, as years go by we will want more rented dwellings instead of fewer, because the cost of private housing has gone far beyond the capacity of people to pay for it. The only solution is to provide more rented dwellings, perhaps more flats—but do not let them be 12 and 13 storeys high. They should be of a reasonable size. This would be an expensive solution.

It is very easy to make a flowery speech and say this Bill or a more favourable one should go through. That will not get us anywhere if we know it is not in accordance with the Constitution. It will not solve anyone's problems. It would also be very easy to be misrepresented as being on the side of Rachman type of landlords or landlords who exploit people. I am not in favour of quick buck landlords. I am not in favour of people having to pay a rent which it is beyond their capacity to pay or being condemned to live in unhealthy or unhygienic hovels. I am not in favour of make-believe, or of putting Bills through that will not solve the problem. It may be said that the 1981 Bill did not stand up. I accept that. While there may have been some doubt before the judgment on the 1981 Bill there can be no doubt now as to what the Supreme Court means by a just rent. A just rent is the market rent payable as from now and not by instalments over five years. That is what a Government of which I was a member proposed in the hope that it would stand up. However, it did not and was shot down. I believe this will also be shot down.

Mr. Lyons

We all agree that the need for this legislation arises from Supreme Court decisions. This Bill hopefully, and I say "hopefully" with reservations, will be constitutional this time because of the need to protect the rights of landlords to a fair rent and the rights of tenants to a fair rent and security of tenure. I noticed that in correspondence about the situation since last June reference was made to restricting the right of landlords to recover their property. I represent tenants in Cork North-Central and, when the decision of the Supreme Court which found the Act was unconstitutional was handed down, unscrupulous landlords immediately tried to take advantage of their tenants. I know of a group of tenants who were visited by their landlord and asked for an abnormal increase in rent. The alternative was to pay up or get out. In this case the getting out might suit the landlord because the property was acquired some years ago at a very nominal price and the ground on which these houses stand is now much more valuable to the landlord for speculative purposes. When I speak about one landlord I can use the analogy for many more such landlords. The ground is more valuable to them and they are not even thinking about their social or moral obligations to their tenants.

I hope that this legislation will succeed because since the decision of the Supreme Court in the Madigan case tenants in the type of rented houses we are talking about are living in actual terror of what might become of them. I know of that from talking to them in my constituency, and I believe from what they tell me that they are not sleeping at night. By this legislation here and by having it in accordance with the Constitution we must put these people's minds at ease and ensure for them security of tenure. I lay some emphasis on that as well as on the rent question. We have cases where the landlord did not succeed in evicting the people or frightening them into getting out of their houses when they did not pay the several hundred per cent rent increase demanded, and the action of such unscrupulous landlords is that since last June they have not collected a penny of the rent.

We are talking about a group of people who are moving on in years, who pay their way and who never owed a "bob" to anyone. These are the sort of people who are being hounded by some landlords. Many of these tenants will express freely that the rents they are paying are uneconomic but they are fearful of any proposals or legislation that could make rents impossible for them to pay. We have heard here already this evening of a demand from some people greater than their total income, and in this respect it behoves us all to ensure that these long-established tenants will not come under that sort of pressure. I am pleased to see that because of the likelihood of that happening, particularly to people in the social welfare bracket — many of the people we are talking about are in that bracket — the Minister is proposing to provide through the Department of Social Welfare and the Department of Finance a subsidy to ease the situation for these people. I hope — and in this regard I sound a little note of warning because it has been the experience of all of us as public representatives — that whatever rules we bring in to help people, particularly in the social welfare code, we do not see them being abused to the detriment of the common good. We here and everybody concerned have a responsibility to ensure that this facility being introduced to help people will not be abused and that it will be of good use to as many people as possible.

It is awful to note that we may — and if some people have their way we certainly would — hear that word dreaded in Irish history, eviction. Some of our unscrupulous landlords are thinking along those lines. We must ensure in so far as we can that that unwholesome word will not be put into effect in regard to any of our tenants.

Fair room is left in the Bill before the House for repairs and maintenance done by tenants over the years and that is as it should be. May be because of uneconomic rents in many cases, the landlords could not afford to do repairs, but those who did some repairs discovered a handy little ruse for raising the rents in a controlled rent situation. I will give the House an example. If the landlord put in, say, a new front door for a tenant, the door costing at the time £20 to £30, the landlord would decide that the tenant would pay 5s a week extra — 25p now — for the new door. Lo and behold, when the tenant had paid the £20 to £30 at 5s a week the landlord retained the extra on the rent. If subsequently the tenant had a window fixed or a slate put on the roof there were all these little additions. So much for controlled rents. That is why we must be very vigilant in regard to legislation and so forth which is intended to protect people.

When the former Bill was going through the House I supported an amendment for the provision of a rents tribunal rather than have these matters go through the District Court for a decision as to what was a reasonable rent. Without intending any disrespect to the district justices — and I am not getting into the same realm of thought as Deputy Quinn on the Supreme Court judges — the judge would know about law. To make a decision he would require the services of specialists in the field of housing, estate agents, architects, engineers, to name but a few of the professions involved. The sort of tenants we have been speaking about would not be in a position to avail of the services of these people. Most of these tenants have never been near a courthouse and shudder at the thought of it. On that basis I strongly supported the proposal made by my party last year for the setting up of a rents tribunal. I have not changed my mind on that point but I accept totally the Minister's decision that it would not be possible to establish such a tribunal by 25 April. In the interim we must accept the use of the District Court but I commend the Minister for indicating that he will examine the matter. In the course of his speech he stated:

Once the problem of the controlled sector has been dealt with, I intend, as one of my priorities, to have all aspects of the setting up of rent tribunals looked at and examined in a comprehensive and constructive manner.

I welcome this commitment by the Minister.

Another important matter is the registering of landlords with local authorities. Many tenants do not know who their landlords are because they have never seen them or communicated with them. In many cases they do not know in what countries they live. Estate agents and solicitors — I mean no disrespect to these honourable people — act as fronts for landlords, not perhaps by their choice but by the choice of the landlords. I welcome the provision whereby landlords will be registered and thus made liable for income tax. These faceless people should be flushed out and made to pay their just taxes in the same way as their tenants.

I mentioned last year that the District Courts are overloaded and many months behind in their business. In the Cork area litigation is so far behind that every so often, perhaps once a month, a district justice comes for a couple of days to help clear the backlog. The volume of work will be such before the tribunal is established that it may be necessary to bring in a third district justice from Dublin or perhaps employ some local district justices, if they are suitably qualified.

Some form of legal aid may have to be considered although the Bill provides that a landlord is liable for the cost of taking a tenant to court. Some tenants would do anything rather than go to court and I hope the situation will not arise. It is also my hope that this legislation will be found to be in accordance with the Constitution and will be operable by 25 April. If this is not the case there will be an uncontrollable situation and I would be fearful of the outcome for the tenants. There is a possibility that in many cases landlords and tenants will agree on a fair rent and this would be most welcome. Tenants must be reassured that the Government and the Oireachtas are concerned for their welfare, at the same time recognising the rights of all citizens. Whilst we may have good landlords, a landlord is a landlord.

Mr. Shatter

I believe it is recognised by all sides of the House that there is a need to provide for a balance between the rights and interests of tenants and the rights and interests of landlords. This is the second occasion within a very short period when the House has had to consider this matter. Many of the comments I could make about this Bill have been made by other Members of the House so I want to avoid repetition as far as possible. I would like to refer in a general way to some of the provisions in the Bill and also to some of what I regard as the more serious omissions from it.

I believe the Minister, like his predecessor, was anxious to provide the House with a Bill which would be constitutional and workable but I believe there are many amendments which could be made to it that would render it more efficient. There are also other changes which could be made which would make it a more understandable measure. There are some instances where both landlords and tenants could be provided with greater protection than they are given and provided with other remedies to deal with the situation they find themselves in besides the remedies provided in the Bill before the House.

This Bill is concerned essentially with trying to provide a mechanism whereby tenants living in former rent controlled dwellings can re-negotiate a rent with their landlords or, in the event of not negotiating a rent with their landlords, have that rent determined by the criteria set down in section 13. The Bill is only concerned with the question of rent and tenants' rights and landlords' rights on the basis that the dwellings the Bill is concerned with remain as rented dwellings. A criticism of the Bill is that it could have looked at other ways, in addition to maintaining the rental situation, of dealing with the problem. Most landlords would like to see some return on their asset and whatever Members of the House feel about that the reality is as a result of the Supreme Court decision. I believe the view which has been taken by the Supreme Court is that landlords are entitled to a form of market rent or certainly proper and adequate compensation for ownership rights.

I believe some of the tenants who were living in former rent controlled dwellings or dwellings within the terms of this Bill would probably prefer to purchase those dwellings than be confined to a rental relationship. I believe this only applies to a minority of tenants. The Bill provides a mechanism for the position of the tenant who decides he wants to purchase his rent controlled dwelling, who has a landlord unwilling to sell and who is thereby confined to a rental relationship. The Bill could have provided a mechanism to enable a tenant to purchase on the basis of requiring a landlord to sell a premises, the price being agreed between the landlord and the tenant, or, on failure to agree, such a price being agreed by a court or tribunal decision as to what the proper value of the dwelling or property is. Something could have been included in the Bill and provided for. If it had been it would have provided an alternative way of dealing with the existing problem for some of the tenants, probably not the majority of them. The majority of the tenants will be concerned with attempting to re-negotiate a rent.

I would like to come back to what has been said by other speakers about section 13. We will be dealing with that section on Committee Stage but a general comment should be made about it at this stage. Before we get to Committee Stage the Minister might reconsider some of the contents of that section. I accept the Minister means well in relation to the provisions contained in that section and is trying to maintain the type of balancing act the House will have to maintain to walk the tight rope of constitutionality.

Like Deputy Fitzpatrick from this side of the House, I have my doubts about whether section 13 (2) is constitutional. It is difficult to give a final judgment on that because I believe, with the greatest respect to the Supreme Court, if you take the two judgments delivered so far in this area by them you could give different interpretations as to how the courts might view section 13 (2). There is a possibility that this Bill, like its predecessor, could be referred to the courts for a decision about its constitutionality. If that happens a minimum of 60 days will elapse before we know if the Bill is valid constitutionally and we will be long past 25 April when the present temporary provisions Act ceases its life spell.

I, like speakers on both sides of the House, urge the Minister to introduce an additional Bill to the House tomorrow, a temporary provisions Bill, extending for a further minimum period of three months the life span of the temporary situation we have at the moment. If the President, on the advice of the Council of State, decides to refer this Bill to the Supreme Court for a decision about its constitutionality many tenants will find themselves in a sort of legal limbo in which they will not know what their rights are, what protection they will have and if there is a possibility they could be put out of their houses. There will be a rush of cases heading into the courts and there will be confusion in the courts. They will not know if they should wait for the decision of the Supreme Court on the constitutionality of the Bill before deciding some of those cases. There will be endless problems unless a new temporary provisions Bill is introduced whose life span should carry us for a further three months period to allow time, if this Bill is found to be constitutionally unsound, for the House to introduce a further measure. I was surprised that when this Bill was published it was not accompanied by a temporary provisions Bill to deal with that eventuality.

Leaving aside the possibility of a constitutional challenge succeeding on section 13 there is another problem in relation to the criteria the Minister has set for determining the rents. I believe this is well meaning but it is unworkable. I will give some illustrations of my reason for this. In determining what the rent should be, the courts are asked to take into account, in the context of a dwelling, in respect of whose future rent there is a dispute, the means of the landlord and of the tenant. If the courts or the tribunal are dealing with this how will they do that? Will a tenant have to come to court and give full evidence about all his means, earnings and capital assets if he has any? That will not be a problem with the majority of tenants because we know that they are pensioners and their means are quite simple. They will have a contributory or a non-contributory old age pension.

How will the courts assess this in the context of landlords? Some landlords will be private individuals. Many people in the House may say that they should be required in open court to reveal what their means are. Possibly that should not be the case — that an individual who owns property, in order to reach an agreement as to what rent should be paid for that property should not necessarily have to give full evidence about every aspect of his income in court, particularly when that aspect of income has no relevance to the property itself. Different Deputies will have different views on that, but the workability of it for the court is a major problem.

What happens when the landlord is a company? What happens if a company owns a variety of different properties? What happens if you have a parent company that has a number of subsidiary companies, each subsidiary owning one or two houses that are rent controlled? How are the courts to determine what the means of the landlord is? In those circumstances are we to have company accountants coming into court giving dissertation on the state of the company's finances? I think it is unworkable. The Minister means well. I know what he is trying to do — produce a balancing act between social needs and positions of tenants and landlords. As we all know, the vast majority of tenants affected by this Bill will have real difficulty in meeting any substantial increase in rental payments. Let us not through this House pass a measure meaning well that will either be struck down by the Supreme Court as being unconstitutional or, if it escapes that, will find itself in the District Court or before a formal rent tribunal — which I shall come to shortly — with criteria that neither the court nor the tribunal can apply or interpret in the real world in determining rent. I fear that is what this provision does. I do not believe it is a workable provision however well it is meant. The Minister should look seriously at the possibility of amending it to provide criteria that can be applied in the case of conflict between landlord and tenant as to how much rent should be paid.

An additional criterion I believe should be applied under the provision. It is one that should interact with section 26 of the Bill, which provides for the making of regulations to set minimum standards for residential dwellings that come within the terms of the Bill. That is something long desired and necessary, not just in the context of residential private dwellings that are let and come within the confines of this Bill, but I believe there should be statutory powers to have such regulations enforced generally in respect of residential dwellings.

I welcome that provision in the Bill. It is very similar to a provision in the 1981 Bill; but that provision in this Bill does not, I believe, provide tenants with the protection they should get. I said a similar thing in the context of the 1981 Bill. How that section can interact with section 13 is something I shall come to shortly. Section 26 effectively confers power on the Minister to make regulations prescribing minimum standards and confers power on the local housing authority, the local authority, to enforce those regulations. The local authority can do that effectively by serving a notice on a landlord to comply with the regulations and, if he fails to do so, the local authority can do one of two things: they can do the work themselves on the dwelling and subsequently sue the landlord for a contract debt in respect of whatever work has been done, or the landlord can be prosecuted by the local authority. There is a problem in that. Our local authorities at present are overstretched. They do not have the presonnel or manpower to meet many of the statutory duties already imposed on them. They will not have the personnel or manpower to enforce the provisions of section 26. There is no provision in the Bill to provide additional funds for local authorities to enable them to establish a form of housing inspectorate or rented dwellings inspectorate to ensure that such minimum standards will be complied with.

If the Minister is serious in wishing to implement minimum standards for rented private dwellings coming within the ambit of this Bill he should confer a right on tenants to enforce those minimum standards. That is the obvious thing to do. The tenant will be living in the house and will know what is wrong with it. If the minimum standards are not being complied with the tenant will have an obvious interest in ensuring compliance. Section 26 itself should be amended to confer a right on a tenant to serve notice on a landlord requiring him to bring the property up to minimum standard. If the landlord fails to comply with the notice an additional right should be conferred on the tenant to sue the landlord for compensation. I do not know why that was not done. Not only would it ensure that the regulation enforcing minimum standards would be better complied with but it would take the onus off local authorities that I do not feel at present they have the capacity to meet. The reference to minimum standards in section 26 is to some extent window dressing because I see no way in which these would be enforceable at present.

As to how section 26 could interact with section 13, not only do we need to provide a tenant with the mechanism for ensuring that minimum standards are complied with, but let us provide the landlord with a carrot for meeting the minimum standards. Should not one of the criteria to which the court or tribunal fixing rent should be obliged to have regard in determining the rent a tenant should pay be the condition of the property or dwelling at the time when the determination of rent is being made — not simply the condition of the property but the condition of the matters that are going to be regulated by ministerial Order to ensure minimum standards? In other words, if a dwelling does not comply with minimum standards, the body determining the rent that should be paid should be allowed to have regard to that also. So, if a landlord has not complied with the minimum standards and if the rent is coming up for review after a five-year period, he will know that he may lose out on rent. That will provide a real incentive for landlords to comply with regulations and standards which the Minister may feel should be imposed and which he has power to impose as a result of this legislation.

In the context of the legislation and of section 13 I reiterate what I and other Members have already said. I do not accept the Minister's view that it is not possible within the time span allotted to provide for a form of tribunal to deal with determinations under this Bill. The Minister acknowledges that the Bill when it comes into operation, be it this Bill or a further Bill after a further constitutional case, will result in a large number of tenants and landlords coming to the courts looking for relief. He acknowledges that the courts at present do not have the capacity to provide that relief. He refers to the necessity to appoint additional district justices. Just as additional district justices can be appointed, so can a form of private rented dwellings tribunal be established. Just as there is the need in this area for whatever criteria will ultimately be applied in determining the rent, there is need to ensure a uniformity of approach in applying those criteria right across the country. I do not believe it is possible, certainly within the context of the criteria to be applied under section 13, first, for the district justices in effect to apply it; and, secondly, for there to be that uniformity of approach.

I do not believe the appointment of one or two temporary district justices will provide the additional courts we need to determine applications under this legislation. I agree with what Deputy Fitzpatrick (Dublin South-Central) said. Many tenants will be terrified at the prospect of having to go into a formal District Court situation. There are District Courts operating in very strange places at present — dance halls, rugby clubs and in Rathfarnham the District Court operates next door to the gents' toilets — and the size of the court is not very different from the size of the toilets. The courts are not equipped to deal with some of the work they already have, and they certainly will not be equipped to deal with the massive number of applications which will come before them under this Bill. Temporary or new district justices are unlikely to have the necessary expertise to apply the criteria under this Bill and, even if some of them do, there is very little likelihood that within a short period there will be the type of uniformity of approach that is desired by all.

This Bill affords the Minister an opportunity to establish a rents tribunal, a private rented dwellings tribunal, or whatever one likes to call it, whose activities would primarily be to determine the amounts of rents payable under the Bill and to determine disputes between landlords and tenants about the landlords failure or non-compliance with the minimum standards the Minister may enforce under section 26. It would also provide him with a unique opportunity to see how such a tribunal would operate in one area prior to the introduction of comprehensive legislation to deal with all private rented accommodation. I urge him to consider amending this Bill on Committee Stage, or to accept amendments from this side, to establish such a tribunal. It would be in the interests of tenants because it would provide an informal setting, an inexpensive forum within which such disputes between landlords and tenants could be speedily determined. Many landlords would also welcome it because it would provide a less expensive and more expert forum to resolve the problem. Also it would lessen the burden of legal costs on everybody involved.

The Bill does not deal adequately with the problem of legal costs. It is true that the vast majority of landlords will not have that problem. They can afford the legal costs incurred in bringing an action in the District Court to determine rent. Under the criteria in this Bill the landlord may have to bring into court his accountant to give evidence about the state of his finances, an estate agent to give evidence about the type of rent he should be receiving, and he may have to bring all his children into court to give evidence of their ages, but he will be able to do that. On the other hand, the majority of tenants will not be able to pay the estate agents' fees for carrying out a valuation of the rent they should be paying on their tenancy and to pay his fees to attend court to give evidence.

If there was a rents tribunal the personnel would have the necessary expertise and necessity for these professional people trooping into the tribunal would be obviated. Whether we have a tribunal or a District Court, I believe it is essential that tenants should be properly legally represented in a matter as vital as determining the context in which they are going to retain the roof over their heads.

Our present legal aid scheme is totally inadequate; it is not statutorily based but it is based on ministerial diktat. As there is no reference to free legal aid in this Bill, I ask the Minister to get in touch with his colleague, the Minister for Justice, and ask if it is his intention to amend the existing legal aid scheme and to specifically extend its application to all disputes between landlords and tenants under the provisions of this Bill. When we come to Committee Stage tomorrow I hope we will have the Minister's undertaking that his colleague will extend the legal aid scheme. In so doing, I hope he will ask his colleague something else: in the context of tenants who are badly off and whose means are such that they are entitled to free legal aid, will the legal aid scheme bear the cost of getting an estate agent or other qualified persons to appear in court on behalf of the tenant? There is no point giving a non-contributory pensioner free legal aid if he has to provide £200 to cover an estate agent's fee to give evidence in court. It is not just an extension of the free legal aid scheme that is required, but an assurance that the type of evidence any responsible solicitor would tell a tenant he should have in such disputes be made available to the tenant. We must ensure tenants are not disadvantaged because they do not have the means to pay for such professional services. I hope the Minister will be in a position to give us that additional assurance when he comes here tomorrow when we are dealing with the Committee Stage of this Bill.

I have referred to section 13, the imprecise nature of its terms and the danger that it could be regarded as unconstitutional. I would like to turn now to section 23, which deals with social welfare provisions, with the side heading "Rent allowances for tenants". There is a problem with this section. I take it that the Minister means well in the enactment of this provision, but this section does not tell us what the rent allowances will be. If all Stages of this Bill are passed tomorrow and it goes through the Seanad unamended, and if a constituent tells me his landlord increased his rent and then asks how much he will get by way of assistance each week towards paying the rent, my answer will be that I do not know, and every Member who is asked the same question will give a similar answer. If the Minister has a scheme for the provision of rent allowances, be they paid through his Department or through the Department of Social Welfare, could he not give a more detailed statement as to the nature of that scheme and the criteria that will apply? Will there be an upper limit on the amount of money made available to the tenants? I believe this is a very unsatisfactory situation.

If we take the Supreme Court view that landlords are entitled to the market rent, the other side of the balancing act is that we must ensure no tenant loses the roof over his head because he cannot afford to pay the rent he is judged to pay pursuant to a decision made under section 13. We do not know what financial assistance will be available to tenants under the provisions of this Bill. I hope the Minister clarifies that point and spells out the nature of the financial provisions, tell us to whom tenants will have to apply for such financial support and for what length of time this support will be available. Will it be available for the first year or two of the operation of the Act or will it be available on an on-going basis?

Debate adjourned.

Dáil Éireann debate - Wednesday, 31 Mar 1982

Housing (Private Rented Dwellings) Bill, 1982: Second Stage.

Dáil Éireann debate -
Wednesday, 31 Mar 1982