I welcome the passing of the Rent Restrictions (Temporary Provisions) (Continuance), Bill which will provide a degree of security for tenants for a further period of three months in the event of the Bill under discussion being referred to the Supreme Court by the President, on the advice of the Council of State, for determination as to its constitutionality. That move was suggested by this side of the House. The House is now being given some leeway in that eventuality and will relieve the worries and anxieties of many people who were concerned as to what would happen on 25 April in the event of the Bill being discussed not being signed by the President and being referred to the Supreme Court. I should like to refer briefly to the context in which the Bill we are now discussing came before the House and deal with remarks made here yesterday. The Bill is necessary because the 1981 Bill was rejected by the Supreme Court. It was suggested in the House yesterday that in rejecting the 1981 Bill and finding it to be unconstitutional the Supreme Court acted in some sort of pro-landlord bias. There was a suggestion that the Supreme Court was not doing what it has always done, acting objectively as a court judging an issue. In this context I should like, as other Members have done, to dissociate myself from the remarks made about the Supreme Court in this context. I should like to put on record that I deplore the attack made on the Supreme Court yesterday.
The Supreme Court is an independent court whose members, since its establishment, have served the State well and fulfilled the constitutional duties conferred on them. In making a determination on the constitutionality of the 1981 Bill the court was doing no more than it is required to do under the Constitution, to determine whether that Bill, in the light of the Constitution, protected the fundamental constitutional rights conferred on everyone residing within the State by that Constitution. The suggestion that the Supreme Court was acting in some biased or blinkered way in dealing with that legislation is unworthy of any Member of the House. It casts a doubt on the independence and integrity of members of the Supreme Court. It should go out from this House that all Members have full confidence in the Supreme Court and in the integrity and independence of its members. It damages the institutions of the State to suggest otherwise.
In the context of the remarks made specifically about the court's approach in the area of rent restrictions which we are concerned with today, I draw the attention of Deputy Quinn who launched his somewhat startling and totally inaccurate attack, to the judgment delivered by the Supreme Court in 1982 on the 1981 Bill which specifically referred to the necessity to protect tenants as well as landlords. The court emphasised that legislation dealing with this area must provide for a balance between the rights of all those who are going to be affected by it. For some reason unknown to me Deputy Quinn confined his remarks to the fact that the court found that the Bill it was dealing with discriminated against landlords. The court also found that the tenants have certain constitutional rights.
The court went on to say that in its judgment, on the basis that the landlords effectively were entitled to a proper market rent:
"on the assumption that undue hardship is likely to be caused in some instances to tenants should be made and that the question may arise whether such hardship would amount to an unjust attack on the property rights of the tenant contrary to Article 40.3 of the Constitution or would amount to an unjustifiable treatment of such tenants in contravention of Article 40.1 of the Constitution."
The court went on to say that because under the Constitution it had already found one section of the Bill referred to it unconstitutional, it was not necessary for it to further consider the effects the Bill would have on the rights of tenants because it did not arise as the Bill was not going to become law. The court stated specifically that because of the decision the court had already reached, it was unnecessary to consider the matter further. However, the court stated, having regard to the obligation imposed on the State by the Constitution to act in accordance with the principles of social justice, it recognised the presumption that any such hardship would be provided for adequately by the State.
The court went on to say — it is worth bringing this to the attention of the House and the Minister — that it was not therefore necessary to pronounce upon any other provisions of the Bill it was considering. Earlier in its judgment the court referred to the fact that its decision may not, for the legislators who may have to consider the matter again, completely explain all the possible constitutional imperfections or difficulties in this area. I would caution the Minister in this regard. It should go from this House that we recognise the impartiality of the judgments delivered by the Supreme Court. The Supreme Court has a very real and important function to perform in this area. I take the point made by Deputy Fitzpatrick this morning that when this legislation goes through the House there will be a doubt about its constitutionality and it was better that that doubt be resolved immediately than to leave it up in the air with a legal grey area for a year or 18 months while some private person litigates through the courts on a further constitutional action. There is a need, in the interests of landlords and tenants, to ensure that there is no further uncertainty in this area and that the legislation that goes through this House is recognised as constitutionally able to deal with the problems that arise in this complex area of legislation.
In order to bring about that assurance there is a need for a reference by the President — that is very much a matter for him, on the advice of the Council of State, to decide — of this to the Supreme Court. I hope that in the event of this matter being again referred to the Supreme Court, no matter what decision the Supreme Court makes, Members of the House will refrain from the type of extraordinary attack Deputy Quinn indulged in yesterday. It was unworthy of the Deputy who, apart from that attack, made a valid contribution to the debate. It was a most unfortunate manner of dealing with the problem, attacking the Supreme Court in the way he did. It should be said that all too often our courts have had, due to the failure of this House to bring legislation up to date and take into account social realities and people's constitutional rights, to make decisions that effectively changed and liberalised laws. Many of those decisions, no doubt, have appealed to Deputy Quinn. I have not, in the circumstances of other decisions delivered by the courts heard him make such unwarranted and untoward attacks on the courts. I hope Deputy Quinn, if he has the opportunity of doing so, will withdraw any imputations made in the House against the integrity of members of the Supreme Court.
I should like to refer to some of the provisions in the Bill, in particular those which I feel could be improved in providing the type of balancing act we must provide in protecting the interests of landlords and tenants. I hope the Minister will consider looking at the Bill in relation to two areas I shall deal with. Section 11 sets down the manner in which a court or a tribunal determining a dispute between a landlord and tenant may make that determination in the context of the terms of a tenancy. The section states that the terms of every tenancy of a dwelling to which section 8 relates shall be such terms as are agreed between the landlord and the tenant or, in default of agreement, as shall be fixed by the court. The difficulty with that section is that it goes on to discuss in more detail the context of that. However, the section does not — not does any other provision in the Bill—give the courts any guidance as to what terms should be proposed for particular tenancies or leases. The only circumstance in which the Bill goes into detail is in the context of providing criteria for determining rent of tenancies. It does not provide any criteria of any detail to guide the courts as to whether their terms and conditions should be included in tenancies, upon new tenancies having to be negotiated or conferred by the courts under the provisions of the Bill. The suggestion is that district justices, as the Bill is presently framed, should provide, effectively, detailed leases for landlords and tenants.
The only criteria on which they are given any guidance is in the context of rent. There is a tremendous degree of uncertainty as to how the courts will deal with it. It is fair to say that the legal profession, having had an opportunity to examine the Bill, are considerably worried about how any tenant or landlord will be legally advised properly on what other types of terms should be included, or insisted upon, in respect of the conclusion of new tenancy agreements following upon the implementation of this Bill. The Minister should consider this aspect. In the event of this Bill being accepted by the Supreme Court as being constitutional, we may find that, due to bad drafting, we will have to deal with another amendment Bill very rapidly, in order to give the Bill some sense and make it operational in certain areas.
In the context of section 11, I draw the Minister's attention to my point yesterday in the context of another section, that if the Minister intends by regulation to provide for minimum standards of rented dwellings, which is desirable, he should give the tenants of those dwellings a right of action against the landlord in the event of his failing to comply with such minimum standards. I suggested this on the basis that the housing authorities will not have the capacity, manpower or finance to enforce the section of the Act relating to minimum standards. Unless section 26, which permits minimum standards to be imposed, is given real teeth or made properly enforceable, it will be meaningless. In this regard, I draw the Minister's attention to section 11. I have already suggested that section 26 and the conditions of tenancy and the condition of the dwelling be taken into account in determining rent under section 13. Section 11 again states that every tenancy:
shall be such terms as are agreed between the landlord and the tenant or, in default of agreement, as shall be fixed by the Court.
Subsection (2) goes on to say:
Whenever, after the commencement of this Act, the rent of a dwelling is increased by agreement between the landlord and tenant or by the Court, the amount of the increase shall not be payable until:
(a) the terms of the tenancy have been set out in written form and signed by the landlord or his agent and a copy thereof has been furnished by the landlord to the tenant, and
(b) if regulations under section 24 are in force, the landlord has complied with the requirements of such regulations.
Section 24 is concerned with the registration of dwellings. It is desirable that landlords be encouraged to register these dwellings to ensure that minimum standards are complied with and I congratulate the Minister on the provision that rent increases will not be payable by tenants to landlords unless dwellings are registered. I suggest that section 2 (b) should refer, if regulations under section 4——