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Dáil Éireann debate -
Wednesday, 30 Nov 1983

Vol. 346 No. 4

Private Members' Business. - Housing (Private Rented Dwellings) (Amendment) (No. 2) Bill, 1983: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time".
Debate resumed on amendment No. 1:
To delete all words after "That" and substitute the following:—
"Dáil Éireann declines to give a Second Reading to the Bill:
(a) because the Bill would have the effect of removing a right of application to the Courts subsisting at the time of the making of the application and would consequently be in serious risk of being found repugnant to the Constitution, and
(b) because its main provision would have the effect of permitting the respondent to an application to the District Court to withdraw the application against the wishes of the person making the application."
—(Minister for the Environment).

Deputy Tunney moved the Adjournment last night but as he is not present I must call a speaker from the Government side. I have waited some minutes for him. I understand from Deputy Sullivan, the next speaker, that he is sharing his 30 minutes with two other Members.

I am sharing my time with Deputies Shatter and Durcan.

I take it that a similar arrangement can apply to this side of the House?

It has been adhered to on several occasions but the Chair does not have any control over it.

We agree to Deputy O'Sullivan sharing his time.

Last night Deputy Molloy said it was a sad spectable to see old people being brought through the court system and we all agree with that view. That was one of the reasons why the original Bill was dealt with as a matter of urgency in the House last July. Deputy Molloy last night levelled some criticism at the Members of the Labour Party for their lack of concern. I do not accept that criticism. Deputy Quinn in the last Dáil, when Deputy Burke was Minister, highlighted the plight of the tenants affected by the legislation. When he was appointed Minister of State he succeeded in putting amending legislation through the House. Fianna Fáil co-operated fully in July and for that reason I was surprised that they proposed an amendment to the Bill. On 7 July, in the course of the debate on the original legislation, Deputy Molloy said:

The Fianna Fáil Party give a wholehearted welcome to this Bill. The Minister need not offer an apology for the short period allowed for the debate. We recognise the time restrictions on the Minister and we thank him for having ensured that this legislation was finally brought before the Dáil in this session.

It is amazing that a few months later Deputy Molloy is moving an amendment to the legislation.

We all agree that some of the people who were brought through the courts were completely at sea and in surroundings that were alien to them. The Government were advised that it would be unconstitutional to introduce retrospective legislation and that is why some people had to endure the hardship of going through the court system. It is significant that the Fianna Fáil speakers last night, Deputies Molloy and Tunney, did not offer any criticism of the tribunal. I accept that the tribunal have only heard 14 cases to date but I thought we would be trying to improve the system and, if necessary, introduce changes to make it more humane and acceptable.

I will refer to some of the shortcomings of the tribunal system later. Some of the valuers appearing before the courts and the tribunal are doing irreparable damage to their profession. The behaviour of some of them does not do them any credit. They are applying a system of market value to houses and that is wrong. Some families have lived in their houses for more than 80 years and they cannot be compared with short term lettings as valuers have been doing. I would have thought Deputy Molloy would have put forward suggestions to improve that and accept the advice of the Attorney General and his predecessors that such cases cannot be removed from the court unless by mutual consent.

Many people feel aggrieved that proof of ownership is not established under the current system. In some cases there is not proper title to the property. Owners have died and over many years agents have collected the rent. This problem should be tackled and proper title should be proved. There has been a suspicion in many cases in Cork city that the person claiming the increase in rent is not the rightful owner and there is a fear that the age and condition of a house is not taken into consideration. When the original legislation was introduced in July many Cork Members contributed to the debate. That was not surprising when one considers that this is a major problem in Cork city. In that debate the point was made that most of the houses were given to tenants in a poor state of repair. As a result they had to spend substantial amounts rendering them habitable which they feel was not taken into account. There is then the cost of the solicitor and the valuer. In the few short weeks of the tribunal's existence we have had a situation in which people in receipt of social welfare have had to bear costs amounting to over £200 if they were to defend their cases. This is something which will have to be tackled under the courts' system, when the cost was actually borne by the landlord. A person on a low income at present is very vulnerable and cannot afford the best advice of a solicitor or valuer if they are to emerge with a fair rent. It may seem rather extraordinary that a Government party backbencher is suggesting these changes. But in the light of the working of the tribunal and its close monitoring by various tenants' associations, these points have arisen.

I appreciate that there was not sufficient time in the setting up of the Rents Tribunal to appoint a rents' officer in the various local authorities and that there were certain problems with regard to reaching agreement between the various trade unions involved. This matter should be attended to immediately. In so doing it would remove the matter from the courts' system and from within the jurisdiction of the Rents Tribunal as well as which agreement might more easily be reached between tenant and landlord without going to the expense of a court hearing——

The Deputy has been speaking now for nine minutes; I am just telling him.

Another flaw that crops up in the system is that the Rents Tribunal do not have power to force a landlord to carry out repairs to a property. This may be a legal entitlement. But there should be some mechanism available to the tribunal which would permit them to compel a landlord to carry out such repairs where necessary. There is then the question of assessment of the rent. Gratuities, retirement pensions, lump sums, payments of this nature should not be taken into account. Here I am referring to lump sums paid to former employees, perhaps the equivalent to one-and-a-half year's wages on retirement and which should not be taken into account in assessing their rent. This practice should be discontinued.

There is need also for the appointment of rents tribunals at various centres, perhaps in the major urban areas. It would add considerably to overall costs if the tribunal have to travel from Dublin and there would be the inherent danger also of a backlog of cases to be heard in various centres. Such rents tribunals, if operating at local level, would be familiar with local conditions and local effective market values of properties. At present a valuer can strike any figure he wishes. Granted there can be a margin of error on either side but the behaviour of valuers today leaves a lot to be desired.

I am disappointed to say the very least that the Fianna Fáil Party felt compelled at this early stage to seek an amendment knowing full well what was involved and that the advice of the Attorney-General was not heeded. We all share that concern. This concern manifested itself earlier on the introduction of the Bill by the Minister of State, Deputy Quinn, who at all times has shown his concern for the people who will be affected by this Bill. It was accepted in July. Now, five months later, I fail to understand why there is an "about turn".

In the very short time in which the Rents Tribunal has been in operation I should have preferred that we would have continued to monitor its operations, hoping that we would devise a system more equitable than that at present obtaining. At present it is far from satisfactory. Perhaps that is understandable because it is the first of its kind, there are no precedents, people have had little experience in this field and it would take time to overcome the various teething troubles involved.

Deputy Wallace from the Opposition side of the House will begin at 7.33.

I find this a very curious legislative provision——

On a point of order, I thought the debate would revert to this side of the House——

All right.

I find this a very curious legislative provision before us. I found speeches made on it yesterday by Members opposite even more curious. The reason I find this whole exercise exceedingly curious and peculiar is that the rents legislation with which we are concerned, the primary legislation, was that passed by the Fianna Fáil Government through this House in the spring of 1982. This Government subsequently amended that legislation by providing for rents tribunals.

The Bill before us now seeks to enable those cases that are heading into the District Courts, which had been set down here in the District Courts prior to the recent legislation about rents tribunals, to be sent on to the Rents Tribunals at the request of one party to the proceedings. It was explained yesterday evening that there might be, there appears to be, or the Government have been advised that there is a constitutional difficulty with that Bill. I do not know personally whether or not there is a constitutional difficulty in transferring this jurisdiction in this way. The Government are advised that there is — there could be differing views on that — but it appears there may be a problem. We had Members opposite yesterday evening shedding crocodile tears for the difficulties being experienced by many people, particularly elderly people, who found themselves in the District Court unable to cope with or understand what was taking place.

The reason this is a curious legislative exercise for Members opposite is that, when the original Bill was tabled by the Fianna Fáil Government, it provided for the District Court to deal with these matters. When that Bill came before this House on Committee Stage I formally tabled amendments on behalf of the Fine Gael Party to provide for, guess what — the establishment of rents tribunals. That Bill enacted by that Fianna Fáil Government had, on Committee Stage, a very comprehensive amendment tabled by the Fine Gael Party to provide for the immediate establishment of rents tribunals which, if passed, would have ensured that none of these cases ever found their way into the District Court, that no elderly people would have been subjected to the more formal courtroom procedures than they would have experienced appearing before tribunals. That would have prevented any difficulties such as those arising.

What happened in the spring of 1982? Deputy R. Burke, the then Minister for the Environment, said he did not really feel at that stage that rents tribunals were appropriate. The Workers' Party, who had got round to tabling amendments in favour of rents tribunals, retreated to a spectacular attitude and the then Minister, Deputy Burke, appealed to the Workers' Party not to vote for rents tribunals because the Government might be defeated on the issue. The Workers' Party looked into their navels, examined their social conscience and joined the Fianna Fáil Party to vote against the establishment of rents tribunals, while Fine Gael and Labour voted in favour of them.

This exercise here yesterday and today is one of the sickest pieces of political posturing I have seem in my time here. Have Fianna Fáil suddenly discovered they have a social conscience? Where was Deputy Molloy, who tabled this Bill, when Deputy Burke, the Minister, introduced the original legislation and opposed amendments to establish rents tribunals? Was Deputy Molloy protesting? Did he suffer a pang of conscience? Did he feel he should vote against it and vote in favour of rents tribunals when the original legislation was before the House? Has Deputy Molloy a greater social conscience than Deputy Burke? Is that why they have changed places, with one now assigned to the wilderness?

On a personal level I have great regard for both those Deputies but I must say that the attitude taken in this House on this legislation is an example of the type of thing that results in people outside the House viewing our behaviour here with a measure of utter and complete contempt. The problem that now exists has been created solely by the party opposite, but now they are shedding crocodile tears for the difficulties they themselves created for many elderly people, in Dublin and Cork particularly.

What is the reason for the sudden metamorphosis that has resulted in Fianna Fáil realising there is a need for rents tribunals? There are two reasons. The first is the Dublin Central by-election when members of that party discovered many elderly people who were experiencing difficulties in the District Court. Of course they won that by-election. Is the appearance of this legislation the result of a pang of conscience all of a sudden, with Fianna Fáil saying: "Mea culpa, we will go in to confess our sins. We have realised we should have done it in 1982. We have suddenly seen the light”.

Of course it is not. This is about playing party politics. They have put the measure to the House in the hope that it will be voted down and that they can troop around to doors in their constituencies saying: "Did you see the Labour Party and the Fine Gael Party voting against rents tribunals"? They know that is arrant nonsense. I deplore that kind of political opportunism. It does not lend anything to the legislative process and it does nothing to help those people whom the party opposite are allegedly trying to help by this legislation. It would have been considerably more responsible and credible if they had accepted the original legislation and if they had not voted against the establishment of rents tribunals. Let us not have further displays of hypocrisy by members opposite blaming this Government for the difficulties being experienced by elderly people who find themselves before the District Court to deal with their rents problems. Their difficulties are due to one thing only—failure of Fianna Fáil when in Government to allow their own legislative provisions to be amended to permit the establishment of rents tribunals.

Deputy Shatter spoke like a true lawyer, very hard-hearted towards the unfortunate tenants to whom we seek in the Bill to give the same rights given to the landlord classes. The purpose of the Bill is to give these rights. The 1983 Bill gave that right to the landlords and we feel the same rights should have been given to the tenants. This involves physical and mental suffering for many old people.

The Deputy was told that 15 minutes ago.

I did not interrupt the Deputy.

It is ignorance— do not mind it.

We have been told that the only objection from the other side of the House is a constitutional one. We have been told that constitutionally the Bill may not be right, but we have been told that it is constitutionally possible to put this Bill through the House. Many thousands of cases had been lodged for hearing in the District Court before 2 August last.

I will give two typical examples of landlords taking advantage of the situation. One involved an elderly lady. We know that extortionate rents are being charged by the landlords following District Court hearings. We may have the same situation when tribunals have been established but the tenants will be given an opportunity to present their cases there.

I will cite two cases. With some of my colleagues, I attended a District Court sitting to hear rent cases. The first concerned a lady of 82 years who had been a tenant since 1962 at a rent of £8.62 per week. The house was in a shocking state of repair. The first floor where she lived overlooked a car park on one side and a corporation laneway with houses off it on the other. There were no facilities for storing refuse or fuel — such items had to be stored within the flat. The valuer accepted that the roof, the windows, the landings and the paint work were in very poor condition. The faulty roof had enabled pigeons to gain access to the attic. The tenant had complied with the agreement to maintain the interior of the flat. The justice sought clarification on the repairs required in order to justify a rent of £130 per month. On being made aware of the work involved, he fixed a rent of £126 a month and refused a stay pending completion of the repairs.

That case seemed bad enough until we came to the second. It involved a lady born in 1898 with an income of £80 per week from a Posts and Telegraphs pension. She was living in a three-room self-contained flat at a rent of £1.21 a week. In the previous year she had spent £800 on necessary replacements of a bath, a w.c., an immersion heater and a water tank, as well as sewerage repairs. The landlady offered a refund of £170 against that outlay. The flat had major defects in the roof with consequent dry rot in the floors and the skirting. These conditions were extremely dangerous for an old person.

That type of court, though intended to be informal, is intimidating for the elderly who make up the majority of the people involved. We seek in the Bill to give the same rights to the tenants that the landlords have. Tribunals will be somewhat more informal. The landlords have a very powerful lobby but the tenants have nobody to represent them. We want to give them some protection. For that reason, we have submitted this Bill. Even if the Minister feels it is unconstitutional he should accept it and send it to the President who may refer it to the Supreme Court at a later stage.

I should like to ask the real reason for the introduction of the Bill. Did it stem from a general concern for the elderly or poorer sections of the community who might be in decontrolled rented dwellings and who might be liable to be subjected to the rather rigid harassment of court proceedings to attain their rights? Was it introduced for mischievous reasons to which Deputy Shatter has already alluded? Deputy Molloy indicated last evening that it was introduced for a genuine reason and that the Government had only responded to Fianna Fáil promptings originally when we had included a provision for tribunals. Who responded to whom when the original Bill was introduced? Were it not for a decision of the courts the legislation would not have been introduced in the first place and I think it was the Minister who said that perhaps legislators do not respond quickly enough in introducing legislation.

Deputy Molloy questioned the validity of the legal opinion which was available to the Government which suggested that it might be unconstitutional to withdraw the cases which are now before the courts and to bring them before the tribunals. He went on to suggest that perhaps there was more eminent legal opinion available to the Opposition. He went further and said that the Government appeared to be backing the landlords and that people on this side of the House had a vested interest in opposing this Bill. That amazes me because I thought that Members on the opposite benches would surely include people who were representative of landlords and speculators.

Deputy Tunney presented a very constructive appraisal of the situation. He seemed to be very familiar with the subject and probably has ample experience in this field like many other Members of the House. He saw difficulties from the point of view of poor and elderly people who had lived for a great number of years in a dwelling suddenly finding their rents jacked up by a decision of the courts. This could also happen if a decision was taken by the tribunal. Those of us who have attended oral hearings on planning matters know full well the expertise, power and persuasion that can be drawn upon by powerful groups, usually speculators or vested interest groups. The tenants would not necessarily be able to call on the same expertise and would find themselves at a decided disadvantage when being cross-questioned by the landlords' representatives in the circumstances to which Deputy Tunney referred.

I do not see how this amendment will change one iota of the status quo, for the simple reason that regardless of whether the decision comes before the courts or the tribunals, more or less the same procedures will be gone through. The case for and against will be made and, without a shadow of doubt, the more powerful group will always be able to present the more convincing argument. They will have the time, money and expertise to do the research necessary to make a very careful presentation of their case to ensure that from the point of view of the person who has to adjudicate, they will have at their disposal convincing information which will ensure that the powerful group will win. Unfortunately, this Bill will not change that position.

As far as I can see, the Bill was introduced purely for mischievous reasons in order, as Deputy Shatter indicated, to show to the unfortunate sector of the electorate that there is a genuine effort being made by Deputy Molloy and others to alleviate their situation. That is what brings politics and politicians into disrepute because people will ultimately see that their hopes are being dashed once more. The unfortunate poor and old citizens have, up to now, seen Deputy Molloy as their champion, the man who is going to fight their case for them and ensure that they will get fair play. The Bill does nothing to help these people who would normally be housed in the rented dwellings to which the Bill refers. For that reason the Bill can only have been introduced, as I said, for mischievous reasons.

Deputy Molloy queried the validity of the Attorney General's advice. It does not seem to be a very good idea to have an Attorney General if the Government do not have regard to his advice. That does not necessarily mean that we should not listen to other advice but it is the job of the Attorney General to advise the Government. He does so and I have heard no argument put forward by the Members on the opposite side of the House which would indicate that his advice is invalid, that he has not considered the situation fully and that they have.

He is not infallible.

Deputy Molloy said that they have a considerable body of legal opinion who think otherwise and perhaps it is good that people like that are in opposition. There is provision in the original Bill to ensure that the tenants are supported by the social welfare rent allowance scheme and that their interests will be protected. Deputy Tunney said that it appears that we would be subsidising the landlords but we must ask ourselves whether we are prepared to subsidise the tenants. Maybe, in the final analysis, that goes into the landlord's pocket but if we do not do that the alternative is that the rent will be increased and, as a result, the tenants will be poorer.

Having regard to what was said previously when the original Bill was going through the House I cannot understand the reason for the introduction of this Bill now. I can only conclude that it is being introduced for mischievous reasons because it can not do any possible good.

Tá díomá mhór orm nar ghlac an Rialtas leis an mBille seo. Léiríonn siad nach bhfuil siad réidh aon faoiseamh a thabhairt don chruatan agus don imní atá ar dhaoine i lár na cathrach agus ar fud na cathrach go léir.

I am extremely disappointed at the attitude of the Government in relation to this Bill. I am disappointed, too, that Deputies of the calibre of Deputy Shatter would come here and utter what was cynical mumbo jumbo and political point scoring in an effort to confuse the issue. He, together with the Tánaiste and the other Members of the Cabinet, has been unable to grapple with the question of doubt as to the constitutionality or otherwise of this Bill. That is the fundamental point of difference. According to the Minister for the Environment last evening it would seem to be the one fundamental point of difference between both sides in relation to the Bill.

When I heard Deputy Shatter refer to the question of the constitutionality of the Bill, I was hoping that he would make direct references to the Constitution based on the best advice available from the Attorney General. Instead, all we heard was a lashing criticism of Fianna Fáil for what they did in 1982 when they failed to take up what Deputy Shatter recommended then. If the Deputy were as serious this evening as he was supposed to have been in 1982, why did he not stay on and put forward a serious, comprehensive legal argument against our Bill? All he did was to chide us and reprimand us for not accepting the decision of the Attorney General. As a Member of this House I take grave exception to any Deputy telling me that I should accept without question the decision of the Attorney General. In saying that I mean no disrespect to his Office. He is appointed by the Government of the day in their wisdom. His office must be respected but any time I consider that there is doubt in relation to any decision of the Attorney General, I will consider it my duty to express that doubt.

Even if I, as a backbench Deputy with no legal experience, were to allow for the doubt that the Minister continued to express during his 40-minute contribution last evening, I fail to see how, on the basis of that doubt alone, he could reject our Bill or reject suggestions from us that we were prepared to co-operate regarding any amendment the Government wished to bring forward which would enable victims of the present system of processing cases in the District Court to have some kind of redress. I am very disappointed that the Minister for the Environment failed to address himself to the question of the constitutionality of what we are proposing, with the exception of saying that the Attorney General expressed a doubt about it.

At the same time the Minister failed to deal with the issues involved in the District Court in regard to the cases that are being processed there. I shall not delay too long in outlining the hardships, the fears and the difficulties being experienced by those people who have been called before the courts but I speak from personal knowledge, having spoken with at least 30 such people in a certain area of this city. I do not wish to be dramatic or in any way to use the hardships experienced by these people to illustrate what is a very fundamental difficulty but I consider myself compelled on the basis of approaches made to me to quote at least two examples. One concerns a case in Aberdeen Street in which a lady died within days of receiving a valuation drawn up by her landlord or by a company acting on his behalf. I have been told by her doctor that the fatal heart attack she suffered could be attributed directly to the shock she sustained on receiving that bill.

There are a number of other fundamental issues in relation to this whole matter. Briefly I wish to refer to the manner in which Folio Homes notified the tenants of their intention to process the claims through the court. The House will recall that the Housing (Private Rented Dwellings) (Amendment) Bill, 1983 became effective on 2 August 1983. On July 1 Folio Homes decided to process in excess of 300 cases. This was four days before the Bill was circulated. The properties in question were formerly the property of Dublin Artisan Dwellings. Section 12 of the Act requires that no landlord can make an application to the court unless he has notified the tenant a full month previously of the intention to lodge the application. On the basis of the evidence available to me from the people who have been brought before the courts already and from those who have been notified of the landlord's intention to bring them before the courts, it seems to me that Folio Homes made a concerted effort to circumvent section 12. Admittedly the applications for hearing were lodged with the District Court on 29 July 1983. That was a few days ahead of the legislation but the notices of intent were not posted to the tenants for a couple of months later. In other words, these notices were dated 1 July 1983 and were lodged on the 29th of that month, but the tenants did not receive them until months afterwards.

If this is deemed to be legal by the justices who are processing these cases, the whole thing smacks of legal fiction. If the landlords, especially Folio Homes, have to resort to this kind of manouvering, the whole operation must be suspect. On the basis of the evidence available to me I am demanding that the Attorney General be called in to investigate the cases that have been heard already and to refer them, as a matter of priority, to a higher court. I will not accept the suggestion from any source that the tenants should be asked to take this course of action. The basic objection to that would be that the costs would be prohibitive.

I wish to refer also to the manner in which the valuers operate. They were the firm of Sherry FitzGerald and Partners. I do not know of any relationship between the FitzGerald part of the company and myself but perhaps the Government side would indicate if there is any connection in so far as they are concerned. I have reliable information to suggest that the Taoiseach could identify those valuers.

The Deputy's genealogy needs overhauling.

On the basis of evidence supplied to me by people whose cases have been processed in the courts, these valuers concocted fiction which was accepted by some of the justices. I do not wish to impugn the integrity of any justice.

(Interruptions.)

I want to respect the integrity of justices and judges in general but I am extremely dissatisfied at the manner in which these cases were processed. I believe it is a duty incumbent on the Minister to bring it to the attention of the Attorney General. On the question of constitutionality, I am disappointed that the fundamental point made by Deputy Molloy is not taken.

I ask the Minister to enable the next speaker from that side of the House to take up this issue seriously. I have gone through the Constitution and on the basis of legal advice available to me today on Articles 34 to 37, there is no evidence that this Bill of ours is unconstitutional. If the Minister has this evidence then let him produce it in this House before 8.30 p.m.

I am not going to belittle or even discuss the other side's motives in bringing in this Bill. I am going to make every assumption in their favour and I will make them a present of the fact that I have had plenty of complaints about the way the existing situation works and I and my colleagues on this side are as conscious of it as are the Deputies who have spoken. Since this side of the House has been more or less invited by Deputy Fitzgerald to say something about the constitutional dimension of this Bill, I propose to stick to that. I will not be categorical about it because anyone is foolish in making a categorical statement about a legal point not vet decided, but the weight of the authorities is against the validity of Deputy Molloy's Bill and I will explain briefly why.

It is not an absolutely clear case as it would be if, for example, Deputy Molloy's Bill proposed compulsorily to transfer from the jurisdiction of our courts an ordinary case in some traditional area of law such as an action for damages for negligence or personal assault. That would be an absolutely clear case. If anything is clear about this Constitution it is that when somebody has what is called a justifiable controversy — a controversy of a type traditionally dealt with here in the form of a court action — once he has begun a court action he has started a machine moving which must be allowed to move on without interference to its conclusion unless the plaintiff gives up and says that he does not want it to go to a conclusion, in which case the court will be very glad to make an order disposing of the thing by consent. Otherwise it cannot be removed forcibly from the court's jurisdiction.

That is as clear as anything can be and has been since 1947 when the Sinn Féin Bill, which was brought in by the Fianna Fáil Government with the best of intentions, was shot down by the High Court and subsequently by the Supreme Court, both courts largely staffed in those days by judges — if it is not disrespectful to say it — of the Fianna Fáil persuasion. As commonly happens with people when they are put in an independent position they behave like independent men and put their affiliations behind them. I mention the point not in any sense to cause acrimony, far from it, but in order to say that, notwithstanding the political background some of these judges had on their appointment, they did not hesitate in shooting down that Bill although it was brought into this House with the best of intentions, namely to prevent a relatively small fund, the Sinn Féin fund which was the butt end of a fund collected during the years of the national struggle before the split, from being frittered away in litigation and eventually ending up as lawyer's fees.

That was a laudable intention but they went about it in a ham-fisted way. In trying to stop an action which was disputing the ownership of the funds in mid-stream, they passed a Bill which was intended to force the High Court to dispose of the action in a particular way by making an order. Mr. Justice Gavan Duffy, who had been appointed by the Fianna Fáil Government, and the Supreme Court most of whom had been similarly appointed, would not have it. They said: "This Constitution [Mr. de Valera's Constitution, the Irish people's Constitution] confides and entrusts to the exclusive jurisdiction of the courts this kind of controversy and neither the Oireachtas nor anybody else has power to wrench it out of their hands and give it into the hands of some other person or to tell a court how it is to decide something." That goes for the humblest parking prosecution in the District Court as much as it goes for a big case of, as it must have been seen in those days, £50,000 or £60,000.

The Minister did not accept that.

I could not be as categorical about this Bill as anybody would have to be about an action of the kind the Sinn Féin Funds Act tried to stop in mid-stream. This is a different kind of Bill. It is trying to regulate a special statutory procedure which did not exist a couple of years ago which was called into existence by an Act of this House and the other House and which is not part of the ordinary common law. In other words, it is trying to regulate a statutory procedure which has created, so to speak, a new set of rights side by side with the ordinary common law of the land. I cannot and will not be categorical about that. The judicial function here, even when mobilised and deployed in response to a special Act of this kind in order to operate a special scheme of this kind, confers on the operations of that scheme — I hope I am not being absurd in using an expression like this — a certain chemical quality. If I may borrow a phrase from the world of theology, a certain transubstantiation takes place in the dispute.

I am trying to express in a couple of words the way I imagine the majority of legal opinion would see this. Once you entrust something to a court you have done something which is in a sense irrevocable. You have converted the dispute from being an ordinary dispute such as one of us might have across the House, with one's wife at home, with one of one's children or a policeman at a street crossing, into something of quite a different quality. That quality is in the realm of judicial independence and cannot be interfered with even by the Oireachtas let alone by a Minister or anybody else. To that judicial independence and the untouchability, integrity and immunity of the judicial process from interference even by the Oireachtas everybody in this country ultimately owes his freedom. It is a thousand times more protection than anything anyone in this House, the other House, the President or anyone might wish to do.

This point has never yet been decided but a point very like it arose just 40 years ago in regard to an Act passed in consequence of a fire in the Athlone Woollen Mills but it was never litigated. The question of whether the Oireachtas was competent to stop in mid-stream particular litigation or a whole stream of litigation and transfer it to a different tribunal has never been finally decided. Therefore, I will not be categorical about it but my opinion is that the trend of opinion here in regard to the judicial function and process as such would be to the effect that once you have, rightly or wrongly, entrusted a function to a judge in a court you must let him do it. It would be quite all right if Deputy Molloy's Bill were to provide that as from next month or next Monday any fresh application of this kind which one may wish to bring must be brought before this new tribunal. That could well be done.

That is not necessary. There is a matter in which it is being circumvented.

Yes, that would be quite a different matter. Effectively to construct a section which would wrench away, perhaps against the will of one of the parties, an issue from the court before which it is now and hand it on to another tribunal would be of very doubtful validity.

Could I ask Deputy Kelly a question?

He has two minutes left.

I am running out of time.

Would Deputy Kelly accept that the fact that the tribunal was established under the Act makes all the difference?

I do. I have spent most of my ten minutes accepting that. That is an element which separates it to some extent from the Sinn Féin case. Even despite that difference I am inclined to think that the quality of the judicial function here on the basis of the authorities which we are able to study is seen as something which makes a dispute entrusted to them it special. Once it is entrusted to them it cannot be taken out of their hands until the court itself has decided it. My last point is a small debating one which I hope will not be thought contemptible.

Considering the high legal opinion which is available on that side, Deputy Molloy's phrasing is abominable. Although the section as it would stand if Deputy Molloy's Bill were passed talks about a landlord or tenant making an application, either of them could withdraw the application. Suppose the person who wants the application put an end to is not the person who made it, how do you speak about the respondent, the defendant withdrawing an application? He did not make an application. This is a small drafting point, one which would be worth spending time on here if this was a Bill arising here in some other context in Private Members' Time. I only mention the point in order to show that not much legal skill has been expended on the drafting of the Bill.

It was not my intention to speak on the Bill but because of the hypocrisy from the Government benches I must say something. Deputy Shatter and Deputy Durkan criticised this side of the House, but when the legislation was put through the House last July many of the speakers from the Government side were not present. They did not contribute to the debate at that time. I ask, who are the hypocrites in this House tonight? The Public Gallery is full of people who have had to listen to the hypocrisy of Members on the opposite side but those Members had not the decency last July to contribute or to listen to the debate. Deputies from Cork from all sides of the House put pressure on the Minister before the summer recess to bring the legislation before the Dáil. That was the reason it was introduced. In Opposition we are quite entitled to act in the best interests of the people. We will continue with our work of helping them.

Last night the Minister for the Environment expressed surprise that we were discussing the Bill. He was very saddened with the proposal of Deputy Molloy. If that saddened him I should hate to take up too much of his time. Fianna Fáil are very concerned that people of nearly 80 years are being taken to court to have their rents assessed. Many of them had never been in a courtroom before but now in the twilight of their lives they are being taken to court and their rents are being assessed by people who have had no contact or involvement with them and who have no understanding of their background.

The fears expressed last July are still relevant today. Fianna Fáil are convinced that cases can be transferred to the tribunal. I attended the courts in Cork and I saw what people had to go through. They were afraid to open their mouths even to their own solicitors in case they might indict themselves in some way. Fianna Fáil have nothing to be ashamed of. This Bill is in the interests of those who will be affected and the majority are elderly people. They have worked all their lives for this country and they are entitled to the protection of the legislators.

We have had the matter investigated by our legal advisers and where one party agrees to bring the case before the tribunal we believe that should be done. The Minister and the speakers opposite should know that we are bringing forward this Bill for the benefit of the people. The other side of the House should stop the nonsense that we are only doing it for political reasons. In July last we did not obstruct the passage of the legislation. Members opposite who spoke in the debate tonight did not even have the courtesy to wait in the House until the debate was finished. They were only interested in getting their contribution into the papers tomorrow. They were not here last July when we dealt with the matter in detail. The hypocrites are not over here but they are certainly on the opposite side.

In making a contribution to the debate I do not propose to discuss the motives of Fianna Fáil in bringing in the Bill or of the Government in opposing it. There is a much more important constitutional angle to the whole area of rented dwellings. I refer to the seemingly overriding rights of property over the interests of ordinary people. I made this point in 1982 when the original Bill was brought in and also in 1983 when the amendment introducing the tribunals was introduced. I should like to see in the lifetime of this Dáil the Government — of which the Labour Party are a part — bringing in amending legislation to enable the whole question of property rights to be teased out, to ensure that the common good is served by the Constitution, not just the interests of those who own large areas of property or who choose to speculate in property. The difficulties of people in rent restricted property arises mainly because there are elements in our society who insist on speculating and making large profits from the need of ordinary people for homes and for a roof over their heads.

In his contribution Deputy Shatter made a number of accusations against The Workers' Party in relation to the Bill when it was introduced in 1982. If the Deputy had checked the Official Report for that period he would have to admit he presented a distortion of the facts. The Labour Party at the time withdrew an amendment to introduce the tribunals. The Fine Gael Party did not move their amendment and, in the interests of providing protection for tenants, The Workers' Party also withdrew an amendment seeking to introduce tribunals into that Bill. It must be borne in mind that the Bill was brought in a day or two before the Dáil went into recess. The most recent Bill introducing tribunals was brought forward late at night and was pushed through in a matter of hours. It must be a fair criticism of this House that we seem to deal in an emergency fashion with very important legislation. We allow emergencies to develop and we restrict ourselves in terms of time to deal with important legislation while other items are discussed at length which could be dealt with in a matter of a few hours.

The main point that must be made in regard to existing legislation is that this and the previous Government have failed to implement it. On a number of occasions I have raised the question of the implementation of section 26 of the Act which has not been implemented a year and half after its passage. This prevents tenants from ensuring that the houses for which they are paying a market rent will be maintained by the landlord.

We have raised this a number of times and we received assurances a number of times but still these regulations have not been introduced. I would appeal now to the Minister to ensure without any further delay that the Act is fully implemented so that the tenants, who have little enough rights as it is, can avail to the full of the right this House intended them to have. I would also ask him to insist that those who are going before the courts at the moment have a rent established which is a fair rent, as was intended by the Act, and not the market value.

I shall be brief. The reason we support this Bill and are pushing it so strongly is that since the Rent Restrictions Act was found to be unconstitutional by some well-known business people in this House, people who are presently trying to find other legislation unconstitutional, there has been what can only be described as severe harassment of old people by professional classes who have made financial gains for themselves in quite massive proportions. Since then over the past 14 or 15 months both in Opposition and in Government this party have tried to the best of their ability to provide protection for old people who are, in the main, those on fixed rents in accommodation they have occupied for many, many years. Landlords have been awarded by the District Courts increases in rents for this accommodation to the tune of 2,500 per cent.

We have said all this before and the first Act passed was supported by both sides of this House. It had to be brought in quickly because the Rent Restrictions Act was adjudged to be unconstitutional. Following on that the tribunals were set up here between 10 p.m. and midnight just before the recess. At the time we clearly stated the reason why we thought this was dangerous. We were going into the summer recess and the property owners, valuers, speculators and the likes of Folio Homes and others would use the opportunity during the summer to list their cases and then do nothing.

I will spell out simply what we are asking. We have had a dose of legality from a few people here, people very eminent in legal matters. What we want is that the cases listed on the calendar, cases pushed through on to the calendar in the 48 hours before the tribunal legislation was enacted, that the tenants in those cases be allowed to opt. The landlords are allowed to opt. The tenants should equally be allowed to opt for the tribunal.

Last night I heard the Minister say it was unconstitutional and I would be very grateful if he would let us know why. Attorneys General have been wrong in their advice in the past. Indeed, that is how the whole thing started with the Rent Restrictions Act. What we are asking is something very simple. If our phraseology is not up to Deputy John Kelly's standards we are sorry, but I think everyone understands the point we are trying to make. The by-election is over and we cannot be accused of doing this for political gain. We allowed the legislation through before the summer recess. The Minister is now in a position to do a great deal of good for the 48,000 old people who are having sleepless nights, who have been 30 and 40 years in the same accommodation and who now have their rents increased by 2,500 per cent. What more deserving case could be brought before this House? Anyone who argues this is a political gimmick just does not understand what is happening. I know the Minister does understand and I am sure he will accept our Bill. He can subsequently test whether or not it is constitutional. Let him give an answer now to these people who are totally unreasonable, totally unfair and do not give a damn about the old people in this city and in the rest of the country. Let him show that politicians are not prepared to join in what is nothing but an unseemly racket.

I join with my colleague in making a very special plea for this Bill. I do so to emphasise our unanimity on this side of the House about this matter. I have a very special interest in this whole issue because many Members now in this House would not be aware that it was I who brought in the 1960 Act which was subsequently struck down by the Supreme Court. I maintain that that Act stood the test of time for 20 years. It worked quite satisfactorily and I cannot understand why it should ever have been struck down.

In connection with the recent amendment to the Constitution we were told we could leave everything to the good sense and mature judgement of the Supreme Court. I shall never understand why an Act which stood the test of time and seemed to give reasonable satisfaction to both landlord and tenant should have been found unconstitutional after 20 years. If it had been struck down some time in 1961 or 1962 I would, perhaps, have understood.

I am coming into this debate, and I say this with the utmost sincerity, because I am shocked to the core at what I see happening in Dublin city today and I understand the same situation prevails in Cork and elsewhere. I have seen for myself at first hand a situation with which no reasonable person, particularly no reasonable public representative or legislator, can be satisfied.

To some extent we are all to blame because we passed this legislation but I submit we were forced into passing it by the decision of the Supreme Court. We had to deal with that situation and we passed an Act. We did not anticipate, and we could not have anticipated, the way in which the Act is working. Let everbody in this House understand it is working disastrously. It is inflicting unacceptable hardship — I go so far as to say cruelty — on a very large number of old and defenceless people. This is not a situation from which we can stand back. It is not a situation we can tolerate.

This Bill will not solve that but it will do something towards solving the appalling situation that presents itself to us. The District Court is totally incapable of dealing with the situation. It is a slot machine. You have these slick, clever, professional people and they have worked out a formula. It is an ignoble, unworthy process. The ordinary tenant going in there has no hope of getting justice. Dreadful things are happening.

Whatever else we say about the legislation or the situation, we must accept that the District Court has not measured up to the task we, as legislators, gave it in regard to these rent cases. That is why we, in some attempt to ameliorate the situation, have put forward this Bill.

This business of unconstitutionality is all eye-wash, absolute rubbish. When one does not like some legislation the simplest thing and the easiest thing is to jump up and say: "I am a professor of jurisprudence and this Bill is unconstitutional".

I did not say that.

I was not trying to be unfair to the Minister but, if it is in order, and we know it can happen, that a criminal case can be transferred by an administrative act from one court to another, and from a superior court to another, surely a mere rent case, which has no legal or constitutional implication, could be transferred from the most minor court in the land to a tribunal specifically set up by this House to deal with a particular situation.

I have no hesitation whatsoever in saying that this argument about the unconstitutionality of this Bill is spurious. It is merely a device used by the Government to avoid acceptance. Now I would make a very special appeal to the Minister personally at this stage. It is late in the day but hour by hour and day by day the tragedies in this city continue. I make a very direct personal appeal to the Minister to accept this Bill and so provide some amelioration of this appalling situation and then go on from there and tackle the situation on a much broader basis. If he does that he will have the full co-operation of this side of the House. We will facilitate him in every possible way.

We are dealing here with human tragedy that continues to be enacted in the courts of our country week after week. The people who are entangled in this tragedy and the people who are, according to the law passed in this House, obliged to deal with these cases cannot themselves make any change in the law to alleviate hardship caused to those caught in this net. The only place a change can be made is in this House and we in Finna Fáil have taken the only step open to us when, due to the failure of the Government to act in this matter, we have come forward with a Private Members' Bill. It is a shame on the Government that they have not moved before now to correct a serious wrong which is being done to hundreds of elderly citizens week after week in our District Courts.

At the end of my speech in the debate last July I asked the Minister of State at the Department of the Environment, Deputy Quinn, to go back to the Attorney General and get more detailed legal advice on whether our proposal was constitutional. I do not know if he did so but certainly we have heard nothing from him since then. We asked him to come back to us having made further inquiries as to the legal difficulty with which he said he was confronted. We do not accept that this legal difficulty exists.

I said last night that the legal advice available to us is that this measure would not be unconstitutional. The only response from the Minister was that he was advised by the Attorney General. He did not quote any precedents or give any cases. He could not substantiate the argument that this Bill would be unconstitutional. It was a most unsatisfactory reply, especially considering the advantage the Minister has over a person such as myself in that he has the benefit of being in the legal profession. One would have expected a detailed argument from him but he left if hanging in the air, acting at the whim of an Attorney General whose advice has not always proved of great merit, as this country knows.

I quoted the Sinn Féin case in support of part of my argument. In reply the Minister stated:

The Deputy would be well advised to read the Sinn Féin case in detail because my advice and my own reading of it is that the case would back up the constitutional right of the citizen as interpreted under our Constitution.

I do not rely on my own reading of this case but the legal advice available to me, including the opinions of senior counsel is to the effect that the principles in that case do not apply to this Bill. The fixing of rents is not a matter in the purely judicial domain. It is largely an administrative matter and the transfer of these cases to the tribunal would not deprive the landlord of the right to have his rent fixed: it would merely change the forum in which it would be fixed.

Article 37 of the Constitution clearly enables such matters as these to be regulated outside the formal court structure. Article 37 states:

Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or body of persons is not a judge or a court appointed or established as such under this Constitution.

Article 37 does not impinge on this Bill. The fact that an application has been forwarded to the District Court does not of itself give constitutional rights to a landlord to have an administrative matter such as the fixing of rents dealt with by the court. The landlord or other applicant will still have power to refer questions of law to the High Court under section 13 of the 1983 Act.

During his speech last night the Minister stated:

What the present Bill would purport to do is put a person, who has properly applied to the courts in accordance with the statutory right given to him in the Housing (Private Rented Dwellings) Act, 1982, to have his case determined, in the position of having his case struck out retrospectively, and thus his statutory right denied, by the person who is the opposing party to him in the case.

This, I submit, is a wrong interpretation of the Bill. It is not intended to have the matter struck out retrospectively. What is involved is merely a transfer of forum. As matters stand, legislative powers exist for matters to be remitted from one court to another. This is in essence what is intended in this Bill. If the Minister wants the Bill further clarified I will be happy to receive any amendment to ensure that the effect of any application under this Bill will be automatically to transfer the adjudication of rent to the tribunal. The statutory right referred to is the right to have rent fixed. This Bill in no way denies that right.

No Attorney General can claim infallibility in the matter of legal opinion. As I have stated, I have had the benefit of substantial legal advice to the opposite effect of that received by the Minister. The whole matter of the unconstitutionality of Rents Acts arose through erroneous legal opinion held by lawyers. The Supreme Court must be the final arbiter. The present Attorney General, Mr. Sutherland, advised the Government in regard to the first Bill passed in 1981 which was found by the Supreme Court, on reference by the President under Article 26 of the Constitution, to be in conflict with the Constitution. Surely the Attorney General and the Minister must realise, notwithstanding their opinion, that they may be wrong. I am not saying that the advice I have received is any more infallible.

I stressed last night that I would welcome the referral of this Bill to the Supreme Court to test its constitutionality. I do not intend to turn this Chamber into a court of law by indulging in legal debate. All I say is that genuine legal differences of opinion exist which should be resolved by the courts. The legislative will of this House should not be frustrated by differences of legal opinion. Doctors differ and patients die but there is no reason why, if lawyers differ, this Bill should die.

The Minister has asked me to advance legal opinion to him. Unlike the Minister, I am not a qualified lawyer. However, I have had the benefit of the best legal advice and it conflicts in a fundamental way with that of the Minister. I ask the Minister to seek independent legal advice before cutting short this Bill. No applicant has a constitutional right to have these cases heard before the District Court. That seems to be the basis of the Minister's argument. The constitutional right is to have the rent fixed and this right is not affected by the Bill. If it were, things would be different. Similarly, no constitutional right exists to have appeals heard by the Circuit Court. It is merely a statutory right which the Oireachtas is perfectly entitled to terminate. These statutory rights in no way affect the property rights vested in the Constitution.

We have received legal advice to the effect that this Bill would solve the problem of the tragedy befalling so many of our elderly citizens in the courts. We make a final appeal to the Minister and the Taoiseach and all those who claim to have shown concern for the plight of these unfortunate people. We plead with them to accept the Bill and let its constitutionality be tested in the proper forum, the Supreme Court.

Is there any concession?

There is no right to reply.

I would ask your permission to seek leave to withdraw the amendment and refer the Bill to a select committee of the House for further discussion to see if we can make progress on what is obviously a point of grievous concern to the House.

We accept that and I am pleased that the Government have finally decided that there is wisdom in our move. We accept this as a better alternative to the previous intention of the Government to strike down the Bill. We welcome this move and are grateful to the Minister for the Environment for his response in this matter and will be willing to co-operate with any such committee.

Amendment, by leave, withdrawn.
Question, "That the Bill be now read a Second Time", put and agreed to.

When is it proposed to make an order for a referral of the Bill to a special Committee?

On Tuesday next.

The Bill has been read a Second Time and a motion will be introduced next Tuesday to refer it to a special Committee.

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