Dáil Éireann debate -
Thursday, 7 Jul 1983

Vol. 344 No. 9

Estimates, 1983. - Housing (Private Rented Dwellings) (Amendment) Bill, 1983 [Seanad]: Committee and Final Stages.

Section 1 agreed to.

SECTION 2.

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

Mr. Molloy

Concern has been expressed here about the commencement date of the Act and I should like the Minister to tell us what will happen in the meantime. Could he give some indication of when the Act will be commenced and when the present situation will cease to operate — in other words, when will this Bill become law and when can appeals be lodged under the new Act? It would be the wish of everyone in the House that it would become law immediately and that all cases that at present stand for hearing in the District Court, on the commencement of this Act would be transferred to the tribunal.

I have circulated an amendment to that effect which we will be pressing the Minister to accept. It was stated clearly during the debate that many cases have been rushed to the court, particularly by landlords anxious to beat this Bill. We were very disappointed to hear the Minister say that it will be several months before the tribunal will be established. That is unsatisfactory.

I cannot accept the excuse the Minister give for the delay up to now. He said the change of Government did not help matters. That should not have mattered because there was consensus of opinion on both sides of the House before the last election that a rents tribunal should be established, so the change of Government should not have interfered in any way with the preparatory work in the Department of the Environment. That work proceeded even with an election taking place. No matter how many elections were held, no matter how many Minister from both sides of the House were appointed, the civil service were there in continuity. Therefore that is not an acceptable excuse. There was no difference in policy between Fianna Fáil and the Coalition parties on this. We all agreed there is urgency about bringing legislation before the House to set up the tribunal.

The Minister said this legislation had been put at the end of a queue. I was more than surprised to hear that. We regarded it as being very urgent and I am disappointed to hear that the Government now in office did not give it the same urgency. I do not know if the Minister meant to create that impression. It was a surprising form of words to use about a Bill which had to do with the relief of great hardship being caused in the courts while a lot of the Attorney General's time was wasted over the words of the pro-life issue. The poor tenants are the ones who will suffer because of the to-ing and fro-ing of the Taoiseach and the Attorney General on the referendum issue. It is a very sad day for a small vulnerable section of the community, caused by the prevarication of the Taoiseach on the referendum issue. The economy in general has suffered because the Taoiseach devoted so much of his time to that issue. So did employment and the entire economy which has been sliding from under his feet during all that period.

We are critical of the fact that it has taken so long to bring this Bill forward. We will not be too critical tonight because we realise the short time left. We would have been very upset if the Bill had not come before the House this week. We want to get to section 10 quickly.

Mr. Quinn

Following the enactment tonight, if there are no amendments we will not have to go back to the Seanad next week and the Bill can be taken to the President as soon as possible to be signed. The tribunal will be set up as soon as possible thereafter.

Mr. Molloy

The Minister spoke about months.

Mr. Quinn

I have been listening to the urgency of the Deputies' speeches. The advice I got is that it could take a number of months because of all the factors involved. I am saying now that I will do everything possible to establish the tribunal with the minimum amount of delay. I do not want to mislead the House. It would be very easy for me to respond to Deputy Fitzgerald and say that the tribunal would be there by 1 August. I am not sure at this stage if we would be able to do all of the things required between now and 1 August. However, I give an unequivocal commitment, and leave myself open to sanction by the House at a later date, to have it done as quickly as possible.

Mr. Molloy

What is the great difficulty? At the moment the cases are heard by a district justice. All the Minister has to do is to appoint people to the tribunal to have the cases heard. Surely the tribunal members could be selected from people who have similar experience and knowledge in this area as district justices. Indeed we are not very happy with many of the decisions of district justices. That is why we are urging the Minister to get on with the tribunal. This is not something new. The procedures are already established.

Mr. Quinn

If that was the case it could be done, but we are not just trying to replace the District Court; we are actually trying to change the process by which the District Courts took the decisions. The District Court system is an adversary one with the landlord's team on one side and the tenant's on the other, two people competing against each other. The procedures of the District Courts are in existence already for the rules of evidence and so on.

In this instance not only do we have to appoint the members of the Rents Tribunal — which probably is the easiest part of the exercise now required — but under the regulations which we must draw up there are procedures to be established, forms and so on. We want to reach a situation in which a tenant can come down to a rent officer with his or her son or daughter, or daughter or son-in-law, fill in a clear, fairly straightforward form, submitting all the details of their income, all the facts, the kinds of things about which Deputy Mac Giolla was talking — how long they had lived in the place, all of the eight factors set out originally in section 13, quantifying the kind of repairs they had carried out, the number of times a landlord in a particular case did not undertake work he was supposed to do—so that the rent officer could examine the whole matter, adjudicate and make a recommendation in relation to rent.

There is more involved than just nominating a chariman, four or five vice-chairmen and a panel of 20 to 30 people. I could quite easily give a commitment that we could have that done by 1 August. That is the easiest side of establishing the Rents Tribunal. What will take some time is the preparation of the procedures to get away from the adversary system of the District Courts. But, subject to that constraint, I am giving the House an undertaking that it will be weeks rather than months in relation to my thinking on it.

Mr. Molloy

Can landlords still make application to the courts until such time as the provisions of this Bill are implemented, until the Rents Tribunal is established? Can the landlords continue the flow to the District Courts?

Mr. Quinn

Yes, they can.

Mr. Molloy

Then it is essential that that the Bill be brought into force immediately, that the Rents Tribunal be established. If there is then a delay in dealing with cases at tribunal level I am sure all of us would accept that that would be reasonable enough. But, once the Rents Tribunal is established, it will stop the flow to the District Court and will divert all future applications on these matters to the Rents Tribunal. If the Rents Tribunal is not ready and prepared to deal with a big flow of work, nobody will complain about that — it can delay dealing with applications — but at least the applications will be going in the direction of the Rents Tribunal and it will stop them going on to the District Court, which is what everybody is objecting to.

It is obvious from what the Minister says that very little work has been done on section 15 — in other words, in preparing the regulations detailed in great number in that section. Can the Minister very quickly give an indication of how much work has been done on the regulations which would be necessary to facilitate the procedures to be adopted by the Rents Tribunal?

Mr. Quinn

I accent what the Deputy is saying and we shall try and do what he is proposing. As the Deputy will appreciate, I do not want to give too many precise commitments in order to avoid the problems to which he referred. Having said that, we shall respond in full spirit to what he is maintaining. Quite a lot of preparatory work has been done. Some of the officials of my Department have gone to see the operations of tribunals in other countries and have been looking at the forms and procedures as they operate there. Therefore, quite a lot of work has been done in relation to it.

Question put and agreed to.

Sections 3 to 9, inclusive, agreed to.

SECTION 10.

An Ceann Comhairle

There are two amendments to section 10, one in the names of Deputies Mac Giolla and De Rossa, which was handed in first, and another in the name of Deputy Molloy. They are alternative amendments and both may be discussed together.

Mr. De Rossa

I move amendment No. 1:

In page 7, line 23, to delete "the applicant may, if the other party consents" and substitute "the landlord or tenant may".

We have no objection to the two amendments being discussed together. The purpose of our amendment is to seek to allow the landlord or tenant to withdraw an application from the court. The Minister has indicated that he has been advised by the Attorney General that that is unconstitutional. The information we have — and again I should like the Minister's comments on it — is that at present the Director of Public Prosecutions has the power to switch cases from the jurisdiction of one court to that of another and that this right has been tested in the High Court or the Supreme Court, I am not sure which, and found to be good law. I should like to know from the Minister if that does not apply in this instance as well. Not being a lawyer I am not in a position to enter into a judgment on that. Perhaps the Minister or some of his advisers can put us straight on that point.

The amendment is essential if this Bill is to have any worthwhile effect on the situation obtaining. A number of speakers have made the point already that the courts are not taking fully into account section 13 of the 1982 Act. The factors which are not being taken into account in particular in determining a fair rent are the means of the landlord, the means of the tenant, the age and condition of the dwelling, the date of purchase and the amount paid by the landlord on purchase. My information is that those who are processing cases through the courts are of the opinion that the legislation is operating in such a way that at least 80 per cent of market rents are being established, that a sort of rule of thumb has developed whereby the claim by the landlord is counterbalanced against that of the tenant, the difference being split between them. This means in effect that the fair rental, which was the intent of this House when the legislation was passed last year, is not being implemented, rather that it is the market rent that obtains.

Perhaps the Minister would reply to the point I made in relation to the power of the Director of Public Prosecutions to switch cases from one court to another. Though not a lawyer it seems to me there are grounds for hope in regard to that.

Mr. Molloy

These time restrictions are of great inconvenience. I will not delay the House on this amendment. It has been put down for the purpose of having all cases standing before the District Court at present transferred to the proposed new Rents Tribunal. It is clear that that is the wish of the Oireachtas, that everybody here is expressing the same view. I think we would all be prepared to see it challenged wherever it needs. If the Minister's advice is that it is unconstitutional perhaps that advice must be accepted by him. But we are all conscious of the differing opinions emanating from legal quarters at different times, that what may be one man's view tomorrow. Surely not be another's view tomorrow. Surely the will of the Oireachtas should be supreme in this matter? I hope the Minister will come forward with some positive response, as he has been co-operative so far this evening. I am sure the Minister wishes to see this Bill express the will of the Oireachtas in regard to the Rent Tribunal with particular regard to the cases at present standing before the District Court. I am anxious to hear the Minister's response.

Mr. MacGiolla

Either of the two amendments will allow cases to be transferred from the courts.

An Ceann Comhairle

May I remind the House that, if these amendments have not been disposed of by midnight, they fall and cannot be moved.

Mr. Mac Giolla

I want to put it to the Minister that there is some constitutional or legal problem — that if a landlord or tenant applies to the court to have a case withdrawn, the decision is then in the hands of the justice to allow the case be withdrawn from the court. Surely that would not be unconstitutional? Surely the District Court judge can decide — both are applicants, the landlord and the tenant, and have equal rights before the court in a landlord/tenant case. The court is making a decision as between the two. Our amendment is simply to allow either the landlord or the tenant to apply to the court for permission to withdraw the case and then to take that case to the tribunal. It is within the powers of the district justice to do this and would not constitute interference with the courts.

I take it the Seanad could sit in the morning if that were necessary to deal with the amendment. This is an important matter. If we are told our amendment cannot be accepted because the Seanad is not meeting, then we are wasting our time. I should like clarification on whether the Seanad would be able to deal with our amendment in the morning. It is most important. We are the lawmakers and surely we can make a law to do what we want to do? Otherwise we are wasting our time here.

Mr. Molloy

This is what we are asking the Minister to do.

Mr. Mac Giolla

The Minister's civil servants in the background are telling him that it cannot be done but the House is asking him to set out how it can be done.

An Ceann Comhairle

The Deputy should not refer to civil servants.

Mr. Quinn

I appreciate and support what the Deputies are trying to do. In relation to the point made by Deputy De Rossa regarding the DPP, he has the power to direct a case from one court to another court, although in this instance it is not a court but a tribunal. We are trying to get away from the whole court procedure. It must not be forgotten that the Supreme Court adjudicated on one matter only, namely, with regard to rent. My views and those of my party are well known with regard to private property rights. It is our view that the balance is wrong between the common good and private property rights as interpreted in previous court decisions. What the Legislature wants and what the courts decide are dictated by the Constitution. While I would like to accommodate Deputies, I am constrained from the constitutional point of view. Here I am acting on behalf of the Government and the Minister for the Environment and I cannot promote legislation if I believe it to be unconstitutional. We received advice from the Attorney General——

Mr. Molloy

On what grounds was it deemed unconstitutional?

Mr. Quinn

Essentially it is that we cannot have retrospective law. For instance, we cannot have a retrospective law with regard to an increased sentence for a crime——

Mr. Molloy

We have retrospective law all the time.

Mr. Quinn

Not in relation to property law or in relation to sentences. I am not inventing the advice we were given.

Mr. Molloy

What about the question of local authority charges a few weeks ago?

An Ceann Comhairle

Perhaps the Minister will allow me to make a comment? I assumed that this Bill would be brought to a conclusion by putting one question, as that is the usual form. That is not so in this case. The order I have means that 12 midnight I will have to start putting the necessary questions successively to bring the business to an end.

Mr. Mac Giolla

When this Bill is passed into law, will the previous law automatically fall?

Mr. Quinn

Yes.

Mr. Mac Giolla

Then, what power have the courts to proceed under the previous law if this new measure will be the law?

Mr. Quinn

There is a sequential progress in the enactment. It is signed by the President before it becomes and Act of the Oireachtas. Then, the order commissioning it has to be made by the Minister for the Environment. At that stage the cases will be open to the tribunals.

Mr. Wyse

Only this week representatives of the legal profession from Cork city came to the Minister for Justice complaining about the backlog of cases in the courts; in some cases compensation claims are awaiting decision for the past seven years. Can the Minister not reorganise the procedure and direct the court that all cases be transferred to the tribunals? At least that would help to ease the backlog of cases.

Mr. Quinn

All Deputies are trying to achieve the same objective from different viewpoints. In Dublin the District Courts are grossly over-burdened with these cases. I merely point out that district justices have considerable influence. If an applicant is told by the district justice that it would be preferable for him to take his business elsewhere, in this case to a tribunal, and if that person persists in getting his case heard in court it is obvious that he is not approaching the bench in a way that will get the best response from his point of view. I am sure this is a consideration that will be taken into account by a landlord. We wish that these cases will be transferred to the tribunals as soon as possible. I would like to make that mandatory but the legal advice is that I cannot do such a thing. While I should like to accept what the Deputies are proposing, I caution the House against pressing this amendment. If the whole legislative process is called into question we will be back to the Supreme Court again.

Mr. Molloy

Earlier we welcomed the Bill and we agreed to take it in the two hours allocated. I accept that if we were to press the amendment and win it and if it was deemed unconstitutional the whole Bill would fall and we would deprive many people of the opportunity to go to the tribunals.

We urge the Minister to proceed immediately with the establishment of the tribunals so that the majority of people may have their cases heard. I also urge the Minister to take heed of what was said in the debate. He should go back to the Attorney General and seek further legal advice to see if what the House is asking now might be done and if that should prove possible I ask the Minister to do what he can to help. We do not want to do anything that will prevent this Bill from passing into law but we accept that there is this flaw in it.

Mr. De Rossa

We have no wish to cause a Bill to be passed here that may cause more problems in the long run that would othereise be the case. For that reason, we are not pressing the amendment. However, I appeal to the Minister to make every effort to find some device to ensure that the tribunals are established as quickly as possible and that cases are transferred as quickly as possible.

Mr. Quinn

While this Bill is short, Deputies have been unanimous regarding its urgency, which will enable me to introduce this legislation much more quickly than most people had anticipated.

Amendment, by leave, withdrawn.

Amendment No. 2 in the name of Deputy Molloy not moved.

Section 10 agreed to.

Sections 11 to 22, inclusive, agreed to.

Title agreed to.

Bill reported without amendment.

Agreed to take remaining Stages today.

Question Proposed: "That the Bill do now pass".

Mr. Molloy

Could I ask the Minister what financial provisions have been made to enable the tribunal to be established and to proceed with full staffing and all the other facilities which will be required? In these tight financial times could we have an assurance that adequate finance will be made available and that we will not be told later on that the Minister was not able to proceed as promised because there was not enough money?

Mr. Quinn

A Supplementary Estimate will be moved tomorrow to cater for all aspects of the tribunal.

Question put and agreed to