Vol. 333 No. 7
I move amendment No. 1a:
In page 3, subsection (2), to delete lines 23 and 24 and substitute the following:
"(2) This Act shall come into operation on such day as the Minister may appoint by order."
This amendment would bring the legislation into operation by order rather than on 25 April. It follows from the passing of the temporary legislation.
It is a consequence of the temporary legislation being passed?
Yes.
To facilitate the House perhaps we could take all the amendments dealing with the rents tribunal together?
Amendments Nos. 1, 2, 3 and others are on the basis of the rents tribunal being accepted. If the substantive amendment falls these amendments also fall.
Amendments No. 1 is consequential on 6; 2 and 4, 3 and 5 are alternatives; 13, 14, 16 to 21, 23 to 26, 28 to 38 and 40 are consequential on 5; 48 and 49 are consequential on 6 and 4 respectively. Amendments Nos. 1 to 6, 13, 14, 16 to 21, 23 to 26, 28 to 38, 40, 48 and 49, together, by agreement.
I move amendment No. 1:
In page 3, subsection (1), line 26, to delete "the District Court" and substitute "the Fair Rents' Tribunal to be established by regulations made by the Minister under this Act".
We are discussing all the amendments which refer to the fair rents tribunal in whole or in part. My party's submission is not very different from that made by the Minister when he was in Opposition and the fair rents tribunal was being discussed. We do not need to play party politics on this issue. What we are arguing about is the practicality of its implementation — the how, where and when. To that extent I will concentrate on our amendment No. 6. We accept the argument of time constraints which operate within the framework of this legislation and against the background of the Supreme Court decision. For the time being we will accept the District Courts because I understand the Minister has some points to make about improving the support system for those courts.
While discussing this Bill we should make use of this opportunity to refer to a rents tribunal which would enable the Minister to establish such a tribunal by way of regulation in an appropriate time, without having to come back to this House. In view of the guarantee of co-operation that was put on the record this morning by the Taoiseach, we would be happy to be flexible on the length of time required in terms of our amendment to provide that the Minister shall within two weeks of the commencement of this Act establish such a tribunal. There is all-party agreement on the need for a fair rents tribunal. There are many ways in which such a tribunal could act, but we are anxious that it come into operation sooner rather than later. Initially what we want the legislation to embody is reference to the District Court system with the proviso that the provisions of the Act be legally and properly transferred to the jurisdiction of a fair rents tribunal when that tribunal is established.
With specific reference to the amendments in the names of myself and some of my colleagues, and which contain far more detailed reference to the rents tribunal, I would make the point I made on Second Stage, that is, that I do not foresee the type of time constraint Deputy Quinn referred to. The time constraint referred to by the Minister was primarily on the basis of this Bill coming into force on 25 April. By virtue of the introduction of a Temporary Provisions Bill and resulting from the Minister's amendment which has been accepted in the context of this Bill now coming into force by way of ministerial order, the time scale position as before the House now is that this Bill need not come into force until 25 July. Therefore, if this Bill is completed here today and in the Seanad next week and then signed by the President and if there is no referral to the courts, we will be in the position for a period of almost three-and-a-half months wherein the necessary procedures could be undertaken to establish a private rented dwellings tribunal such as that proposed by Members on this side of the House. I suggest that the Minister seriously re-assess the proposal being made now in the light of that time scale.
I would not foresee any difficulty regarding the establishing of a tribunal, of getting people to man it within a period of three-and-a-half months. If the Minister genuinely accepts the need for a tribunal of this nature, I would ask him to accept the amendment in my name and in the names of my colleagues. Because of the detailed nature of the amendment we made, the tribunal is not one that would give rise to a great deal of concern as to what is required. The prototype for it is to be found in the Employment Appeals Tribunal. That tribunal was set up under the redundancy payments legislation and it works well. It is a more informal forum than the forum provided by the courts. It has worked in a number of ways a good deal better than the courts could have worked when formerly they dealt with the types of problems concerned. The amendment before the House provides for the number of members that should make up the tribunal and provides the facility whereby the tribunal could meet in various parts of the country, just as the Employment Appeals Tribunal sit in divisions in different areas.
In these circumstances I urge the Minister strongly to accept the amendment. During the Second Stage debate I pointed out that this gives us a unique opportunity to provide a tribunal with a degree of expertise to mediate in disputes between landlords and tenants and to decide on such disputes while at the same time not involving either the tenant or the landlord in the type of expenditure that they would have to incur in the event of a court action.
I do not envisage the present District Court system being capable of coping with the great rush of applications that will result from the passing of this Bill. Consequently, if the Minister must find new premises and appoint additional district justices, presumably in a temporary capacity which would mean that they would be people who would not have a great deal of experience of such work, I suggest that by far the more efficient mechanism would be a rents tribunal composed both of personnel who have legal expertise and of ordinary members who have expertise in this general area of rents — the fixing of rents and the valuation of property. It is fair to say that Deputy Quinn is trying to achieve what we are trying to achieve except that his amendment is less detailed than ours and would leave the Minister to do by regulation the nitty gritty of what we propose in a far more extensive amendment. I am convinced that if the Minister accepts our amendment he will have the goodwill not only of all Members in the Opposition benches but also of many on his own side who have expressed a commitment to the establishment of the type of tribunal in question, and that is a commitment that was expressed recently also by the Minister.
Would the Minister elaborate on what he said about the alternative accommodation he would provide for the District Court to decide on what would be fair rents? He referred particularly to Dublin, but I expect that there would be similar problems in Cork, Waterford, Kilkenny, Galway and so on. If the Minister intends providing alternative District Court accommodation he should do so on a national basis rather than confining it to Dublin.
I should like to hear from the Minister, too, what has caused him to change his mind since he was on these benches in December last. I ask the question because the one point more than any other that he laboured then was the question of the capacity of the courts to deal with the cases that would come before them. The Minister is on record then as mentioning between 20,000 and 30,000 cases per year. He said it would not be possible for the courts to deal with such a large number of applications. I had the view then, and I have not changed my mind in the meantime, that in terms of the legislation a case can only go to court after failure on the part of the landlord and tenant to reach agreement. Consequently, I did not consider the problem of accommodation to be of the magnitude expressed by the Minister at that time. In addition, the Minister expressed grave reservations then about the capacity of district justices to determine questions of fair rents. In other words, the Minister was saying that it was far outside the qualifications of these people to make such decisions. In the Seanad debate that followed there was a division on that point.
We all accept that a fair rents tribunal is the ideal way of determining what fair rents should be and the Minister rightly referred at that time to the prospect of old age pensioners being dragged through the courts. I agree it would be an experience for some of those people who were never in a courtroom before. The Minister made that point very forcibly. He referred to the delay in setting up a fair rents tribunal. I believe there would be some delay and that it could not be done instantly. I imagine there would be some problems.
I should like to know from the Minister if the Government have discussed this and if they have taken any decision on it. Can the Minister indicate that this is a temporary measure only, while we await the introduction of a fair rents tribunal? I should like to get as much information as possible from the Minister on that point. He was very concerned about it last December. He made the point on more than one occasion and to such an extent that his party called for a vote on it in the Seanad. An air of uncertainty exists so far as the Minister is concerned, and I should like him to clear it up.
I should like to refer Deputies to what I said yesterday. I said:
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.
Following on that and the discussions which took place here yesterday and the decision taken by the Government to introduce the temporary Bill, this morning on the Order of Business the Taoiseach gave categorical assurances to the Fine Gael Party, the Labour Party, Sinn Féin the Workers' Party, the Independents, and members of my own party who have expressed considerable concern about the question of rents tribunals.
We are now talking about rents tribunals as such rather than fair rent tribunals. We are tied by the Supreme Court decision in the Blake-Madigan case and the decision on the 1981 Bill, and we are talking about rent tribunals to deal with just and proper rents rather than fair rent tribunals. This morning the Taoiseach gave firm guarantees that, if this Bill is passed today in its present form, immediately after the Easter recess discussions can take place at Whips level, or at party leaders level, or some other level to be decided, perhaps between spokesmen on the Environment and myself, on the whole question of the introduction of rent tribunals.
The views I expressed in December when this issue was being discussed in this House have not changed. We must find a way to remove the level of fear and intimidation which the courts and the atmosphere of the courts may create for many old people who never had anything to do with the courts. With the time constraints on me, the only way I can go forward at this stage is through the District Courts. It has been suggested that, since the temporary Bill has been passed, there is no great urgency about the permanent legislation and consequently we could introduce a tribunal. I should like to correct that false impression. Already in the courts there is a challenge to the temporary legislation. There is also the possibility that this new temporary Bill may be referred to the Supreme Court. An extension of the temporary Bill increases the risk that it will be found unconstitutional. Were this to happen, the position of the tenants would be very serious indeed, and the options open to the Government would be severely limited. Accordingly, it is imperative that the permanent Bill should become law at the earliest possible date.
I said — and I want to say it again as clearly as I possibly can — that my difficulty about rent tribunals is the time factor involved. I give a firm commitment to the House that, as soon as this legislation is passed, the discussions to which the Taoiseach referred this morning will take place either at party leader level, at Whip level, or between myself and the Environment spokesmen of the various parties. We can sit down and discuss the form of the tribunals. I cannot do it now because of the time constraints. My fear is that I may leave the tenants involved without cover.
I do not want to become political in any way about this. We all share the same deep concern about the problem of protecting the tenants. Deputy Creed raised the point that I made comments about rent tribunals when I was on the other side of the House. I still hold those views. I want to remind Deputy Shatter that, as reported at column 1501 of the Official Report of 9 December, he said it was fair to say that in the amount of time available and in view of the speed with which this Bill would come into force it would not be possible to set up rent tribunals. At that stage his party had been in office for six months. I have been in office for one month. I do not want to be partisan because it is an issue which unites us all. We all share the same feelings about this issue. We want to provide the best protection we can for the tenants while, at the same time, being fair to the landlords and the interests of the landlords. In the time available the District Courts system is the only system that can work.
On the question of the additional district justices and the type of premises in which they will be sitting, I said yesterday that the Government had made a decision about the appointment of a number of extra district justices in the Dublin area, and that they would be sitting in buildings away from the courts buildings, to remove the level of intimidation and try to get as near to the atmosphere of a tribunal as possible. I do not want to be held to the letter on this but, because of the nature of this debate, I should inform the House what the Government have in mind. The idea is that two district justices will be appointed. The premises the Office of Public Works are looking at for us at this stage is the old Dolphin Hotel building. That is in the Dublin area. There will be some other smaller courts in the Dolphin Hotel as well. They will be away from the Four Courts complex.
The reason I specified Dublin had nothing to do with the capital versus the rest of the country. Nobody has any precise knowledge of the exact number of tenants involved. The Private Tenants' Action Group suggest that the figure may be about 30,000. It is an imprecise number. It is generally recognised that for obvious reasons the numbers will be greater in the major cities. I guarantee to the House that a similar situation will prevail in the major centres of population. I do not say it can be done in every District Court area. I guarantee to the House that I will look favourably at Cork, Limerick, Galway, Waterford and other areas. If I leave out any major city or town I am sorry.
I do not doubt the commitment given this morning. We are presented with a unique opportunity not only to stitch it into the record of the House but also to stitch it into this Bill. Perhaps I could suggest a formula that we might, on the nod, put through on Report Stage this evening because that time limit is there. The House is obviously agreed on the need for a rents tribunal, so we strike the word "fair" from it. We have, under section 3, the power to do this by way of regulation. Why take up the time of this hard-pressed House by coming back with more legislation?
I was going to handle that regulation question. I am trying to give as much information as I can to the House on this question so that we can all be at one on it. The how, the where and the when of the tribunal was asked by Deputy Quinn. He suggested that the tribunal should be set up by regulation. The difficulty with the tribunal being set up by regulation is that under this Bill the courts will be looking not just at the rent — there are other issues, the terms of tenancy as well as the rent — and there are constitutional difficulties there. I feel that that would be a matter of such importance that it should be discussed here in terms of a Bill rather than by regulation. It would be the simple way out for the Government of the day at any time to do it by regulation but I do not honestly believe that it would be in the best interests of the community that a body as important as a tribunal should be set up by regulation. Even if I did it by regulation, any regulation under this Bill has to be there for 21 days and only if it is invoked; then it becomes effective and will be back-dated to the date it was signed anyway. I feel it is such a major issue, with all sorts of implications, that it would be right and proper that it be here as a Bill setting up tribunals rather that than be dealt with by regulation of the House.
Deputy Sherlock made the point that, in the time, I would have to find premises and so on for the district justices anyway, and that there would be problems in finding accommodation. Even if I set up a tribunal today I will still have to find accommodation for that tribunal and face the difficulties which will be encountered there.
I honestly believe that the best way forward is our shared view with regard to tribunals. I do not necessarily agree with the way it is being done, or under direct call from the employment agency, or the tribunals.
That is not a direct clause; it is an adaptation.
I do not necessarily agree that that is the way forward. What I do think is the best way forward is that we all sit down together and establish what is the best way forward. I would appeal to the members of all parties in the House today to follow the course I am suggesting and on which they got a guarantee from the Taoiseach this morning. It is a firm guarantee which I once again solemnly give to this House — that that is the way forward. I will see to it and give the House that guarantee. It is not a political point, it is not a party political issue, what we are talking about is acting in the best interests of the tenants, also in the interests of the landlords, but in the best interests of the tenants who would be left unprotected unless we pass the major Bill we have. I am already grateful to Members for their co-operation on the Temporary Bill. But that is constitutionally on very thin ice and I would appeal to Members to follow the line of approach I have just outlined.
In view of the fact that commitments were given by various parties over a long number of years to bring in rents tribunals to order the rents and possession of tenancies by all tenants, both controlled and uncontrolled, and the failure by any party to bring in legislation to that effect, would the Minister consider broadening his commitment at this stage to a rents tribunal which would cover uncontrolled tenancies also?
Now we are going into a different matter altogether. That is a matter that needs great consideration and decision by Government. I could not give a commitment like that here on the floor of the House. The national implications of that for the Exchequer, for the housing stock and other matters is something that would require detailed consideration and I would not be in a position to give that commitment here today. However, I will once again reaffirm the commitment to a rents tribunal on the basis of this particular set of tenants affected by the Bill before us today.
Might I just make the point that the Fianna Fáil Party are on record as saying that they would bring in a rents tribunal to cover uncontrolled tenancies. I am simply asking the Minister at this point to broaden his commitment to the tribunal in this Bill to include a discussion in that area when the parties are brought together afterwards.
My mandate here today is to discuss the Bill, to give the commitment I have given with regard to the tribunals and the discussions that will take place immediately after the Easter recess on tribunals dealing with tenants affected by this Bill.
The other is a much wider and broader question that would require full Government discussion, consideration and is something that I would be pleased to discuss with the Deputy and his party, or any other Deputies, in the future. But the matter we have before us today is the passing of this Bill.
Arising from the Minister's comments, firstly, in the context of the provision of a rents tribunal, the Minister still has not dealt with the point that, as a result of the Temporary Provisions Bill, together with the first amendment to this Bill, it was accepted that there would be a period of three months to three and a half months to establish a rents tribunal. That point has not been dealt with in the context of the provision of premises, just as the Ormond Hotel or the premises——
The Dolphin——
——the Dolphin Hotel to which the Minister referred. Just as a District Court could be established to operate on an informal basis, so equally could a rents tribunal be established within the time period. If additional district justices are to be appointed there is not a great deal of difference between their appointment and the appointment of the chairman and vice-chairman of the form of tribunal we have suggested which is a similar tribunal in the context of the provisions that would apply to the Employment Appeals Tribunal. The provisions are not identical, they are quite different in some respects; that merely provides a prototype.
Might I ask the Minister again to consider those points. In addition — and I would put it on the record of this House — I do not believe that two additional district justices appointed for Dublin will serve the purpose, certainly not in the initial stages of the provisions of this Bill coming into operation. But even if they did the Minister still has not clarified the other aspects of the reasons for a rents tribunal. The Minister referred to the fact that, on the previous Bill I stated that it was not possible to set up such a tribunal. Also on the debate on the previous Bill, in the Bill produced by my own Minister, I said I was disappointed — and it is on the record of the House equally — that that Bill was not providing for a rents tribunal. But I believe a rents tribunal is required to render this Bill operational because of the criteria section therein for determining rents. Those criteria are quite different from the criteria laid down in the 1981 Bill that was found to be unconstitutional, which were far wider criteria, far more imprecise and very difficult to interpret and apply. If district justices throughout the country are to operate it there will be a lack of uniformity of approach. The advantage of a rents tribunal is that we would have that uniformity of approach within the context of a rents tribunal, with a chairman who could, to some extent, co-ordinate the operations of that tribunal to ensure that there was uniformity of approach. That is another reason why a rents tribunal is required more under this legislation than under the previous legislation.
Even if section 13 is found to be constitutional I do not believe it will be workable. It will be very difficult to work and it would be far easier for a body with expertise in the area to operate it than it would be for the ordinary courts. There is a further reason for a tribunal in the context of legal costs that both landlords and tenants would have to incur in going to District Courts, in particular the tenants, the vast majority of whom will not be able to afford court proceedings. They will not be able to pay fees to estate agents for valuations of property or dwellings or pay these agents' fees to come to court to give evidence as to what the proper rent should be. The reason for a rents tribunal is that it would ameliorate that problem particularly in the interests of the tenant. If one had a rents tribunal with a degree of expertise there would be an easing of the burden imposed on the tenants in this area. I ask the Minister to consider that further as a reason for incorporating in this Bill the establishment of a rents tribunal.
I also ask the Minister to reply to something I raised on Committee Stage. Whether or not this Bill is operational through District Courts or tribunals tenants will need to be legally represented. The vast majority of landlords will be able to afford legal representation although a minority will not — we all know of some extreme cases — but in the vast majority of instances tenants will require legal representation and will be unable to afford it. Would the Minister be able to confirm to the House if he had a discussion with the Minister for Justice and if it is intended to extend the legal aid scheme to tenants in this case who are affected by this Bill whether proceedings are brought before tribunals or courts? Would he also clarify — I think this is relevant to the tribunal — if these matters are to be dealt with by courts will the legal aid scheme foot the bill for tenants getting professional advice that they may require from an estate agent or architect?
I would ask the Minister to put on the records of the House what he suggests are constitutional objections to the establishment of a private rented dwellings tribunal. Whenever there is a suggestion of reforming any area of law in any way that smacks of originality or a different approach, some lawyer somewhere suggests it might be unconstitutional. I suggest that a private rented dwellings tribunal is no more likely to be found unconstitutional than is the Employment Appeals Tribunal or the vast panoply of other tribunals that we have. I ask him to state in what way he suggests such tribunal would be unconstitutional. If there are doubts about it I suggest with respect that there are far greater doubts about the constitutionality of certain other provisions in this Bill. If the Bill is referred by the President to the Supreme Court, as I believe it may be, that would equally afford the opportunity to him of having the constitutionality of the tribunal dealt with also.
Once again we have this three-and-a-half months because of the temporary Bill. I thought I had answered that earlier. I would remind Deputy Shatter of section 1(2) of the temporary Bill which says:
This Act shall have effect until the 25th day of July, 1982, or the date of the commencement of the Housing (Private Rented Dwellings) Act, 1982, whichever first occurs, and shall then expire.
If the President signs this measure, as I hope he will, the temporary Bill falls and the permanent Bill which we are now discussing comes into operation. It will be my intention to bring it into operation immediately the President signs it as I feel that this is the best protection for tenants and they deserve the best protection we can provide.
On the question of lack of uniformity of decisions of district justices there could equally be a lack of uniformity in decisions of tribunals and I do not want to get into a discussion in that area. I have already accepted and I confirm the guarantee given by the Taoiseach on the Order of Business. This is a matter that only time itself can resolve. Time constraints on the passing of the Bill prevent us from setting up tribunals at this stage. A number of constitutional matters have to be cleared up. In addition there are some questions regarding rights between landlords and tenants and these problems must be cleared up also.
Tenants will be entitled to have access to free legal aid. Also, as regards costs, I remind the Deputy that under section 12(6) of the Bill the landlord will be liable for the tenant's costs reasonably and necessarily incurred arising out of an application by a landlord to the court unless the court on consideration of all the circumstances, including the means of the landlord and the tenant otherwise orders.
We are trying to get through 23 sections before 5 o'clock with an hour for Question Time. We have a clear commitment from the Taoiseach that he will be reasonable and talk to us, which I accept. We have a unique opportunity for that commitment given on the Order of Business to be stitched into this Bill in a formula on which we can all agree. We shall have an hour at Question Time in which the Labour Party and, I am sure the other parties on this side of the House, will be quite ready to sit down with the collective expertise of the Minister's Department and incorporate a formula for an amendment of the Bill which can be taken on Report and which will enable the provisions of this Bill when it becomes law to be handled initially by a District Court until such time as a tribunal is established and enable the tribunal to be established, preferably by way of regulation. It would appear from the record of the Minister's eloquent speech in the House before Christmas, in which he is personally very much in favour of this, that we can do it by regulation.
The Minister knows that it is a long process to get legislation on to the floor of the House and if he is talking about the on-going internecine war between the Department of Social Welfare and his own Department in relation to it will be even longer. On behalf of the tenants that we believe we represent in the main we have offered full co-operation with the Government in this matter. That offer was made without prejudice to our right to press amendments in the House on Committee Stage and I want the Minister to be clear about that. The Minister now has a unique opportunity to demonstrate on green paper as distinct from the black and white paper of the record of the House, the limit to which his co-operation will extend in this matter.
I want the Minister to say if he is prepared during Question Time to negotiate an agreed formula for an amendment to be taken on Report Stage which will meet the requirements of Deputy Shatter, as a legal Deputy, Deputy De Rossa of Sinn Féin the Workers' Party and certainly the Labour Party in regard to two things, that initially the provisions of the Bill will apply to the District Court but in time will be extended to a rents tribunal and that the form and shape of the tribunal may be prescribed by regulation and that the Minister will put on the record of the House his commitment to consult formally with Fine Gael, Sinn Féin the Workers' Party and ourselves, the Labour Party, in that regard. That is the nub of the matter. Either the Government are prepared to give substance to the formal undertaking of co-operation given by the Taoiseach earlier today or they are not. The Minister has had sufficient time for consultation with his own people today to be able to respond on his own behalf and on behalf of the Government to the request I have made.
With all due respect to the House we are going over old ground about which there is not much disagreement. We are arguing about tactics and strategy rather than the substance of a type of tribunal.
While I am certain that Deputy Quinn's proposal is well intentioned and bona fide——
My proposals always are.
I would not have thought that the Deputy's remarks in relation to the Supreme Court were either well intentioned or bona fide. However, I do not wish to be drawn down that cul de sac. I can see the proposal put forward by Deputy Quinn leading to chaos and confusion. I can see great difficulties in the proposition that between 2.30 p.m. and 3.30 p.m. the Minister and the Deputy would cobble together an amendment. That would fly in the face of what we are trying to achieve, a balance between the rights of the landlord on the one hand, and more particularly, the rights of tenants. We are talking about 30,000 of our citizens. I will strongly resist any effort by the Minister, or Deputy Quinn, or any other Member, to get together in the privacy of a room to prepare an amendment which I would not be party to.
In relation to the question of introducing rents tribunals by regulation, I understand that we will have to introduce a Bill to establish the structures of such tribunals. At the best of times the introduction of legislation by regulation is a form of subterfuge to avoid a discussion on aspects of the law. As a matter of principal I object to such fundamental legislation as promised by the Minister being introduced by regulation. A Bill setting out clearly the membership, functions and status of such a tribunal — Deputy Shatter also mentioned the question of costs in relation to the appearances of tenants at such hearings — should be introduced so that the House can discuss all aspects of it. I see the introduction of a fair rents tribunal by regulation as a sly form of introducing legislation. The Minister should resist Deputy Quinn's suggestion, well-intentioned though it is. It is not my intention to be disrespectful to the idea put forward by the Deputy but I do not agree with it.
Deputy Andrews has just expressed my thoughts on the matter. The whole question of rents tribunals is a fundamental one. Such tribunals will decide on rent and other matters that arise between landlords and tenants and I do not believe the way to handle them is by regulation. It would not be doing justice to the tenants, or to the House. It is wrong to suggest that the matter is being put on the long finger. I have introduced this legislation within three weeks of taking up office. Section 13 (2) is very much my own idea as are the social welfare elements of the Bill. The Taoiseach gave a firm commitment this morning to have constructive discussions as soon as the legislation is passed and I have stated that that holds. I accept Deputy Quinn's bona fides in this matter, that he wants to nail it into the Bill. However, enough constitutional questions have been raised about the Bill today and in various newspaper reports that we do not need further complications such as setting up tribunals by regulation. That would only give further ammunition to those outside the House to suggest that the Bill is unconstitutional.
I appeal to all Members not to divide the House on this issue. The House has been given as solemn a guarantee as can be given by a Government by the Taoiseach and myself about this. I intend to stand over that guarantee and I do not think the suggestion made will help those we are trying to assist. I give an assurance that in the next session of the Dáil, at the earliest possible opportunity the legislation on rents tribunals will be brought forward.
I reluctantly rise to add to this debate because I have stitched into the back of my head clearly memorised assurance after assurance about legislation being under review in relation to the Kenny Report and other things. I do not doubt the bona fides of the Minister but to get the legislation concerned through he must go through the office of the Attorney General, the 14 other Departments and the Cabinet. I have some outside knowledge of the number of hurdles he has to get over in order to get a Bill before the House and therefore, I am sorry that I cannot agree with the Minister. The provisions of the Bill would stand the District Court for the time being. That court, now housed in the former Dolphin Hotel, would be the initial instrument for dealing with such matters. A formula of words could be worked out — Deputy Andrews is welcome to participate in that work — so as to accommodate all the arguments put forward in relation to this matter. The Minister has the wherewithal to deal with this matter on foot of the commitment given by the Taoiseach. We are not asking for very much and we are responding to the request for co-operation here. We could press many amendments in relation to this but the appeal from the Minister is that we do not press any of them. I should like to see something coming from the other side of the House in substance as distinct from words because the Minister is not, in his capacity as Minister, capable of delivering the things he is offering formally to the House. It depends on the legal advice of his Department, the advice of the Attorney General's office and the co-operation of the Government. We should not be naive about this. The Minister has the capacity and power to go halfway down the road to meet what I believe is a reasonable compromise. If the Minister makes one reasonable step forward he will find us extraordinarily co-operative.
The Deputy has asked me to go one step forward but I have not only done that but I have gone miles down the road with the Deputy and others in regard to commitments on the setting up of rents tribunals. This morning the Taoiseach also gave such a commitment. He specified a time when it would be discussed. He did not refer to the future or say that the matter was under review. He specified the type of discussions which could take place. If I recall correctly, the leader of the Opposition party, Fine Gael, accepted the type of discussions offered, while at the same time reserving his position with regard to possible amendments.
It would be the simplest thing in the world for me to cobble together some kind of amendment agreeing to the setting up of tribunals under this Act in the District Courts, but that is not good legislation.
Does the Minister think this legislation is — the putting of the whole Bill through the House in three hours, for goodness sake?
I did not create the situation. This is a situation which has been created for us and about which the Deputy was very vocal yesterday.
Yes, and my views have not changed.
The Deputy should be consistent.
I have been accused of being naive. It would be naive to set up the type of tribunal required, with the detail which has to be discussed, by some form of regulation. I honestly believe that the vast majority of Members on all sides of the House would prefer this done by legislation rather than by regulation — I may be wrong in this. This needs detailed consideration.
I am giving, once again, a firm commitment here that as soon as this legislation is completed, that, either at party leader level, be it my own party, Fine Gael, Labour, Sinn Féin the Workers' Party, or at Whips level, or at my own level together with the appropriate spokesman on the far side, we can sit down immediately this legislation has been passed and discuss ideas on tribunals. I will put forward my proposals and bring before this House in the next session, and as early as possible in the next session, legislation with regard to rent tribunals as they effect the groups of tenants involved in this legislation.
Before the summer recess for certain?
The next session is the next session. That is the one before the summer recess. That guarantee was given this morning by the Taoiseach. I am reconfirming it now.
I understood that there was to be discussion on amending legislation.
I am extending it.
What we are talking about here is trust as between members of the Government and of the Opposition. I was not here this morning when the Taoiseach gave a similar undertaking that we would have the type of legislation which we all want, namely, a rents tribunal. I will call it a fair rents tribunal, despite the remarks in that regard. I know that the title of it would be the rents tribunal, but I would like to see it as a fair and equitable rents tribunal.
To return to Deputy Quinn's piece of illogicality, with respect, on the one hand he complained about this complete Bill being passed in three and a half hours and, on the other hand, he is prepared to go into some smoke-filled room in some part of these premises to discuss the possibility of an amendment introducing the fair rents tribunal in the space of an hour. I find that a very tenuous and thin argument, indeed, apart altogether from the fact that we would not have an opportunity of discussing the proposed amendment by Deputy Quinn in association with the Minister, who has properly resisted any such proposal.
I ask the House to take into account the interests of the 30,000 people, both tenants and landlords, affected. This legislation will be operative so long as there is no rents tribunal. When we come back to the House with legislation setting up the rents tribunal then we can abandon the proposals under this Bill, but not until then. There is undoubtedly, a matter of extreme social urgency involved here. We are talking about social justice for the many tenants seeking justice from this House. We will be abandoning them in their hour of need if we do not now accept the Minister's proposals. I am not saying that as a backbencher of the Fianna Fáil Government. The Members recognise me as being an independent-minded person. I am not, in any way, being sycopathic in regard to the Minister or the Fianna Fáil Government — that has never been my style. I take the view that this legislation is urgently required in the national interest and in the interests of those affected.
If I may conclude on a different tack, there is nothing wrong with the District Court as it is constituted. As I understand it, the Minister intends immediately appointing two district justices to preside over fair rents sitting in the Dolphin Hotel for the Dublin area. District justices throughout the rest of the country would also be party to this legislation. District justices must have a minimum of experience to be appointed as such. Someone suggested — I do not know whom — that the district justices would not be competent enough or experienced enough to deal with this legislation. I do not agree with that at all. Subject to the correction of the lawyer Deputies, I understand that a district justice, to be appointed, must be either a practising solicitor or barrister, having not less than ten years' experience in practice. Inevitably, one finds that district justices have far longer personal experience in practice than ten years. If appointed after only ten years' experience, a district justice would be from 26 to 29 years of age and it is very seldom that one sees so young a district justice. Inevitably district justices are aged from 45 to 50, having considerable experience. I would not underrate the capacity of the District Court to do the job required by this legislation — quite the contrary.
Finally, on the question of intimidation by reference to court atmosphere, the District Court is a court of first instance. I do not have as wide a district court practice as Deputy Shatter and others because I do not practice that much in that court, but there is a certain informality about that court which I find to be a very good thing. One does not have the Queen Anne era garb of the wig and gown——
Nonsense.
——present in the District Court.
All that is required of a district justice in relation to a citizen who appears in front of him or her is that that citizen be given the courtesy to which he or she is entitled. A person is put at ease in the atmosphere of the District Court. I find it very informal and not intimidatory. It is not a bad outlet for justice in the first instance. I would not underrate on the one hand, the atmosphere of the District Court and, on the other hand, the capacity of the district justices, as presently appointed and about to be appointed, to regulate the law when this Bill becomes an Act.
When the Minister was speaking on the discussions which are likely to take place, emphasis was placed on the fact that it would be either the Minister himself, or his counterpart in the Opposition, or the Whips, or the party leaders. In view of the fact that we have put forward amendments on the issue of the rents tribunal, would the Minister be more specific and tell us that our party will have an input in it?
I specifically said that it would be discussions with my own party, Fine Gael, Labour and Sinn Féin the Workers' Party, either at parliamentary leader level, or Whip level, or with spokesmen for the Environment on behalf of the various parties. It can be decided by the Whips as to the form of discussion. Obviously, all four parties in the House would be involved in these discussions.
I am still trying to clarify certain aspects of the Minister's thinking. Deputy Andrews referred to the question of competence of district justices. I am not suggesting district justices are not competent people or that a district justice would not be a solicitor of ten years' standing. Indeed, on our own proposal for a private rented dwellings tribunal we suggest that the qualifications for sitting on such a tribunal would be that the chairperson would have to be a barrister or solicitor of at least seven years' standing. The point that is being lost in all this discussion is that such a tribunal would have three members, one might be a vice-chairman or chairman who would effectively have the necessary legal qualifications, but the other two would be people who had some expertise in the area of valuations of dwellings and be in a position to provide the type of technical expert advice which a tribunal of this nature would have within itself, and that a District Court would not have, unless independent evidence was presented to it.
Although the Minister has said that tenants would get free legal aid, I should like confirmation on the record of the House that his colleague will issue a ministerial directive to that effect pursuant to the scheme for civil legal aid and advice which is at present in operation because unless such a directive is given the scheme will not apply. Whatever the Minister wishes is dependent on his colleagues extending it in that way. Leaving the problem of legal expenditure aside, what will be the position of the tenant in the District Court who wants to assert a rental value that is something less than the landlord is seeking? What expert evidence will that tenant be able to present? Will he get an estate agent or somebody else to come into court and give a valuation for him? If so who will pay the fees of that estate agent, not merely for coming to court but for going to the house or flat and ascertaining a value? The point of the rents tribunal is that there will be a degree of expertise within the body itself. The courts will be dependent on the professional evidence given to them in determining a valuation. That is a fundamental problem in the context of the Minister's proposal.
On a point of order, perhaps Deputy Shatter is not aware of subsection 6 (2) which says that the landlord shall be liable for the tenant's costs reasonably and necessarily incurred arising out of an application by the landlord to the court under this section, and so on.
I am aware of that but I am presuming many of these tenants will require and get legal aid. I expect that to happen. The problem with court costs is that they are dependent on the court ordering them and people ultimately paying them. I do not know whether the District Court, even if a tenant succeeded in getting an order for costs against a landlord, would order that £100 or £200 be paid in respect of estate agents' expenses for attending court. On the scale of costs in the District Court, I have my doubts. An estate agent might get £10 or £20 as a fee. I am not raising a theoretical issue, it is a real problem for any tenant trying to establish the necessary evidence to secure what he believes the rental payment should be.
With respect to Deputy Quinn, that provision in this Bill will not cover that because no estate agent is going to go to court for a tenant on the basis that, if an order for costs is given against the landlord, he will be paid. He will not do it as a charitable act because we are talking about 20,000 or 30,000 tenants in this position and there will not be enough estate agents available and willing to do such charitable acts. The situation will be the same as it was before we had any legal aid scheme where the sort of remedy available depends on the amount of funds at your disposal. The cost provision in this legislation is not going to ease this burden when the tenant first has to go to court.
The Minister and Deputy Andrews indicated that what I propose would be extremely difficult to accomplish within one hour and that by extension it might somehow or other take on the atmosphere of some kind of under-the-counter deal in smoke filled rooms. That impression may have been mistakenly taken by Deputy Andrews. I am simply suggesting that we avail of the procedures of this House to negotiate an amendment and to come back with it on Report Stage. It was right and proper that we should avail of that procedure. The Minister's argument is that it would be very difficult to do that within the space of an hour.
My argument is that it is not the right way to do it by regulation.
I argue that we can stitch into this Bill, for the time being, that the District Courts are the agencies which deal with the administration of this Bill but that we provide for the establishment of a tribunal within the terms of this Bill. I respectfully suggest to the Minister and the Government that a Government that were capable of doing a deal amounting to approximately £150 million with an individual Deputy before this Dáil met are capable in the space of an hour of coming forward with an acceptable formula. Our case rests on that.
With regard to Deputy Shatter's comments, I did not go into the details of the type of tribunal envisaged because we have been discussing the general broad issue and we did not discuss details of amendments put down by Deputy Shatter and other Members. The free legal aid scheme is a matter for the Minister for Justice but it has been decided it will apply. As far as a tenant's costs are concerned, I think section 12(6) sets it out very clearly, that the landlord shall be liable for the tenant's costs reasonably and necessarily incurred. "Reasonably and necessarily incurred" would, in my view, take into account such issues as the Deputy raised, either an architect giving evidence as to the quality and standard of the building or an auctioneer giving evidence as to the approximate rent that other premises get in the area. Surely those costs would be reasonably and necessarily incurred arising out of an application by the landlord under this section? The only proviso is "unless the Court, on consideration of all the circumstances, including the means of the landlord and the tenant, otherwise orders". I see also the free legal aid scheme being extended, not just to the court hearings themselves. There will be many tenants caught in this unfortunate trap who are old and will need advice on their rights under the Bill even before going to the court. They will be eligible for free legal aid.
As far as setting down tribunals by regulations is concerned, I have made all my points. I appeal to Deputies to take the commitment given by the Taoiseach and extended by me with regard to bringing this in in the next session and having immediate discussions with all parties in the House. That is as far as I want to go at this stage.
Reference was made by the Minister to the question of costs. I think they are less than adequate. I do not think the Minister is correct in thinking that the way it is worded providing for costs under the landlord's application would cover a valuer's fee. My experience is that the word "costs" means legal costs and the question of witnesses' expenses — the key witness, of course, would be the valuer — comes under the description of expenses rather than costs. It might be necessary to make a consequential amendment there to provide for costs and expenses. It only provides for application by the landlord. There could be circumstances under which the tenant might have to seek the assistance of the court or tribunal as the case may be. I do not see why it should be limited to applications by the landlord.
There is a further matter arising there and that is the question of an appeal. It could well happen that an application by a landlord would go to the Circuit Court on appeal from the District Court or from the tribunal, as the case may be, but there is no provision in the section to govern such appeals. Would the costs of such appeals be covered? Such costs would be much higher than those incurred in the tribunal of first instance.
This section is the same as section 17 of the Bill passed by the Oireachtas and found to be unconstitutional. The free legal aid system does not cover the cost of advice of a technical nature, but the advice I have is that this will cover costs "reasonably and necessarily incurred". That cannot be interpreted in the narrow sense merely to mean legal advice. It must be interpreted to include advice of a technical nature needed to back up the case of the tenant.
I have not the qualifications of the legal Members here but I want to make the point that during a number of years there has been a tendency in the House to bring in legislation to set up rent tribunals, but nothing has happened. We take the view that if there is to be such a tribunal — we demand that there should be such a tribunal — it should be established by legislation. In view of the time constraint and in order to give immediate protection to tenants, we are prepared to accept the assurance given by the Minister and the Government to have discussions with a view to bringing in amending legislation.
I thank Deputy Sherlock for his statement. I assure him and the House that the trust placed in me and in the Government in this instance will not be found to be misplaced.
(Dún Laoghaire): I am not a lawyer Member of the House and a lot of the debate has been conducted in that atmosphere. For old people, going to court is a traumatic experience. Many of them have never been in court before. The human aspect of this should be taken into account. In my constitutency I know a number of widows who happen to be landlords, but in no circumstances could they be regarded as speculators. They happened to find themselves in a situation in which their only source of income was from a dwelling, may be with a tenant in it.
Therefore, the Bill should have provision for the payment of legal expenses in circumstances when the landlord of the type I have mentioned would incur costs. My understanding is that there is no provision in the Bill for that. I am sure Deputy Andrews, my colleague in the constituency, has had a number of representations like I have had concerning people who find themselves without any income except a small one from a dwelling left to them at some stage.
I suggest that all of us here would be anxious to see that people who genuinely need assistance would get it. I have no brief here to try to secure legal aid for speculators in property at the expense of people who cannot afford to provide roofs over their heads, but in justice we must see to it that everyone who needs help would get it so that his rights would be protected.
Of course assistance can be given to a landlord also. As we all know, there are many landlords of the type just mentioned and if they are eligible for free legal aid they will be entitled to it. Section 12 (6) states:
The landlord shall be liable for the tenant's costs reasonably and necessarity incurred arising out of an application by the landlord to the Court under this section unless the Court, on consideration of all the circumstances, including the means of the landlord and the tenant, otherwise order.
The whole Bill is a balancing act between the rights of the landlord and the tenant.
Deputy Barrett made a very balanced point. It must be stressed that the vast majority of tenants are pensioners and social welfare recipients, but there is a minority of them who are financially well off. Deputy Barrett illustrated the case of a widow or widower with a small income from a rent controlled dwelling which he or she inherited at some stage in the distant past and that a tenant in such a dwelling might have a far higher income than the landlord. That arises occasionally. It appears that if the tenant does not reach agreement with the landlord and if an impecunious landlord is taken to court he might not be given costs against the tenant. That would happen only occasionally but there will be cases like those referred to by Deputy Barrett. All of us have come across situations like he has described, but the vast majority are wealthy landlords and poor tenants. If we are going to provide for an equal approach there should be a provision to enable courts to make the reverse sort of order. I agree with Deputy Taylor because I am not happy that there is a provision to include professional fees, and even if it does I am not happy with it because I am not satisfied the District Court will be able to order the type of payment to the tenant who has made himself liable for full professional advice.
If the landlord is in the financial state outlined by Deputy Shatter he or she will be covered by free legal aid. It is highly unlikely that a tenant who is well heeled will go before a court if he is on a fairly low rent: it will be the landlord who will be bringing the tenant to court.
We have been discussing amendments Nos. 1 to 6. Is Deputy Quinn withdrawing amendment No. 1?
I will be asking for a division on amendment No. 6. I will withdraw amendment No. 1.
I move amendment No. 2:
In page 3, subsection (1), line 26, to delete "the District Court" and substitute "the Private Rented Dwellings Tribunal".
