I want, as briefly as I can, to set in a comprehensive way on the record of the House the various attempts that have been made to alter the law in relation to the question of the value of land and the compensation that should be paid to people in the event of that land being acquired by a local authority. I also want to refer to the various attempts, mostly by the Fianna Fáil Party, but on a number of occasions supported by Fine Gael, tacitly or implicitly, to hide behind the Constitution as the reason for not making any change and to use it as a reluctant but inevitable impediment to enabling the Oireachtas to alter the law in relation to, not just the grounds for compensation which is substantially what this Bill is about, but the basis of the valuation of the land to which the owner of the land, whether compulsorily acquired or otherwise, would be compensated.
I was directly involved in introducing two Bills by the Labour Party. When the first Bill was introduced in June 1980, the then Minister for the Environment, Deputy Barrett, spoke on behalf of the Fianna Fáil Government. The Labour Party Bill was essentially modelled on the Kenny report. When I last spoke on this matter in the House I summarised its contents and, in deference to the House, I will not repeat my remarks. To show how little has changed, I will quote from the 1980 Official Report, Volume 321, column 1494, when Minister Barrett said:
I mentioned earlier the constitutional problems associated with any proposal to acquire land by compulsion in a manner such as proposed in this Bill. As already mentioned, there has been a long history of attempts to find a satisfactory solution to the issues which arise because of, first, pressure on the supply of suitable land for housing and other public purposes and, second, speculation in land expected to become ripe for development as a result of the provision of water, sewerage and other services by local authorities. Numerous proposals have been considered over the years but they were rejected, and a major factor in this was the constitutional problem.
I wish to stress the Minister's remarks, as reported at column 1495:
My Department had in the past given much thought to proposals for amending the compensation code so that local authorities could acquire land at existing use value. However, the legal advice given to them was firmly against such a proposal being acceptable on constitutional grounds.
On the question of constitutionality, there are problems even in regard to the Kenny Majority Report proposals.
If people are interested, they should read the whole debate.
The Minister went on to say, column 1497:
There must be a reasonable prospect that any proposed solution will be an improvement on the existing position. It must be framed within our existing Constitution and laws.
Throughout that debate, which lasted for six hours, the Fianna Fáil Government, assisted by Deputy Andrews, attempted to say that they basically but reluctantly agreed with what was being proposed but that, unfortunately, it could not be done because the Constitution prevented it. I refute and challenge that thinking and I ask the Minister to admit that his party are hiding behind this matter.
The late, lamented Deputy Seán Moore who was Minister of State at the Department of the Taoiseach, spoke on the same issue on 10 June. He was in favour of the principles of the Bill but said he was reluctantly not prepared to support it because it was considered unconstitutional.
Deputy Niall Andrews spoke at considerable length on the Bill and tried to bring in all sorts of red herrings in relation to this, including the question of constitutionality. The Fianna Fáil position has not changed essentially except that they can no longer hide behind that excuse.
In the debate in 1982 when, effectively, the same Bill was introduced again by the Labour Party, the Minister for the Environment was Deputy Ray Burke, now Minister for Industry and Commerce and for Communications. He used the same arguments and I quote from the Official Report, Volume 344, column 881:
We cannot, in this House, be selective in our approach to the personal rights enshrined in the Constitution and we cannot adopt an interpretation of the relevant provisions of the Constitution which would conflict with that of the Supreme Court. The Oireachtas is precluded by the Constitution from enacting any law which is in any respect repugnant to the Constitution or any provision of it. I believe that this Bill is not, in fact, consistent with the Constitution and I shall elaborate on this for the benefit of those Deputies who do not have closed minds on the subject. Such Deputies, I believe form the vast majority in the House.
He went on to elaborate on that but the core of his argument was constitutionality. He elaborated further but I will not take up the time of the House by quoting it.
In contributions from backbenchers similar arguments were made, obviously fuelled by the Department of the Environment. They all suggested that the Constitution prevented the Government and, by inference, the Oireachtas, whether by Private Members' Bill or otherwise, from bringing in this kind of legislation. Is that the case because the same argument is being used here again? The Kenny report was finally published on 26 January 1974 and not in March as has been stated on a number of occasions. The Government issued a press statement dated Saturday, 26 January 1974, which makes very interesting reading. It states:
The Government have, however, accepted in principle the concept suggested in the Majority Report of designating areas in which land would be purchased by local authorities for development purposes on the basis of "existing use" values. They recognise that cases of hardship may occur if existing use value only is paid and accordingly legislation will deal with such cases. In the Government's view, land may be increased in value not only by works undertaken by local authorities but also by works undertaken by other public authorities — as well as by decisions taken by planning authorities. Accordingly, the scheme which the Government will introduce will ensure that designating authorities will take these facts into account. Whilst the Majority Report recommended that a Judge of the High Court assisted by assessors should have authority to designate areas for the purpose of the scheme, the Government are aware that there may be advantages in using a differently constituted designating authority. They will, therefore, take a decision on this aspect of the scheme later in the light of the views which they will receive.
The statement also refers to what cannot be done by the Government of the day. It states:
The Government have been advised that the principles on which they propose to introduce legislation will not infringe the Constitution. The Government, however, concur with the view of the Majority Report and consider that, to avoid any possible doubts about the matter, the opinion of the Supreme Court on the legislation, pursuant to the provisions of Article 26 of the Constitution, should be obtained.
It is my great regret that the Government which I supported did not proceed with enacting that legislation. Deputy Tully, in 1980, gave a partial defence for the reasons as to why they did not proceed. One reason was the collapse in land prices at the time and the fact that a number of builders were selling back to local authorities lands for which they had bid against the local authorities and they were now offering it at a much lower price. The heat, in speculative terms, had gone out of the land market and the matter was not as urgent as it had been before. Another explanation given, and one that I have been reliably informed about, was that notwithstanding that press release issued by the Government, doubts about constitutionality arose and questions about constitutionality were voiced and voiced quite strongly. At no stage was an effort made to try to test, as was suggested, the constitutionality in the courts.
Two Local Government (Building Land) Bills were introduced, one in 1980 and one in 1982. During discussion on the 1982 Bill a compromise was proposed. Arising from that compromise the then Minister for the Environment, Deputy Burke, undertook to establish a committee of the House to look into the problems of building land. That was a concession extracted from a minority Government, a situation not dissimilar to what we have now. The new Government came into office in November 1982 and the building Land Committee was established in the following year. They published their report in July 1985. A number of the recommendations which they made are referred to in the Minister's speech as being incorporated in the Bill that is before the House. It is significant that a lot of the other recommendations made by the same committee have not been incorporated in this Bill. Perhaps when the Minister is replying he will indicate the reasons for this. I will refer to those recommendations later. After the Local Government (Building Land) Bills were defeated the Building Land Committee was established and the matter was considered at some length.
The next process in this development was the publication by the Progressive Democrats of their Bill earlier this year. On Tuesday, 3 May, Deputy Michael Keating moved the Bill on behalf of the Progressive Democrats. It was known as the Local Government (Planning and Development) Bill, 1988. It had the same title, with a different number, as the Bill now before us. In response to that Bill the present Minister for the Environment, Deputy Flynn, on 3 May 1988, at column 210 of the Official Report stated in relation to this Bill and to the whole question of private property and compensation:
Irish planning legislation has, necessarily, been framed with an eye to the qualified guarantee given by the Constitution to the rights of private ownership. Given that the virtual raison d'etre of the planning system is to regulate and restrain development rights in the common interest, this means that some arrangements for compensation are inescapable in our planning code. How exactly these arrangements should be drawn or delimited is a matter for legitimate debate. But it would not be defensible, as a matter of principle, to exclude a compensation facility from Irish planning law.
Nobody I know ever proposed that. This is typical of the kind of illogical arguments the Minister has been putting forward in this entire debate. At no stage did anybody propose that there would not be compensation. What was at issue at all times was the basis upon which compensation values would be established.
The Minister then went on to talk about the Bill which he was in the process of preparing as a justification for refusing to support, or even attempt to amend, the Progressive Democrats' Bill. I want to refer to two points, one from Deputy McCartan who made a very interesting speech during the course of that debate and the other from Deputy John Boland, a former Minister for the Environment. On the Progressive Democrats' Private Members' Bill, Deputy Pat McCartan for The Workers' Party, on 10 May at column 900 of the Official Report stated in relation to the whole question of constitutionality and private property:
Under Article 43 of the Constitution one of the most remarkable provisions in that document of 1937, the position of private property, is laid down in such trenchant terms as to be perhaps the most strongly stated right of all the various rights in the fundamental rights section. Article 43.1 provides:
1º The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
Jurists in interpreting those words have established that the law that derives from a source antecedent to positive law is talking about God-given rights, and it is the only right in the Constitution that has the statement contained in it, that antecedent to positive law our right to private property emanates from the supernatural or from God. No other right in the Constitution is so strongly worded.
There are, however, interesting qualifications to that which are so often forgotten, not so much by our courts but by us as politicians when we try to address our understanding of what the right of property is and what it should consist of. Too often arguments, discussions or deliberations in the area of planning are immediately discounted by reason of the strongly and trenchant words of the Constitution with regard to private property. That view ran right throughout the Kenny report of 1974 which sought to address the question of building speculation and building land and the point was echoed in some of the contributions here over the last number of days in the acknowledgement or concession to Government that they must do nothing that would seem in any way to impinge radically on the right to private property because of the constitutional duty to do nothing by way of legislation that would be seen to impinge directly on the Constitution.
At column 901 he continues to say:
It is interesting that in some of the more recent Supreme Court decisions members of that Bench have sought to remind us as legislators that those qualifications are there and that we, as legislators, should have more regard to them.
The qualifications to which he referred had already been mentioned by him as follows:
As legislators we have failed to exploit the qualifications in Article 43 that allow us to tackle the whole question of property rights. Those qualifications should be exercised as under Article 43.2.1.º in the context of civil society, to be regulated by the principles of social justice in Article 43.2 suggesting that laws can be enacted to delineate the rights reconciling their exercise with the exigencies of the common good.
The last quotation I want to read into the record of the House is of Deputy John Boland, a former Minister in this area, who had some interesting things to say. Clearly, preoccupation with his legal studies informed his considerable political and local authority experience. He had this to say in reference to the Progressive Democrats' Bill at column 1175 of the Official Report of Wednesday, 11 May 1988:
It is interesting to note that in their proposed alternative Constitution the party who are sponsoring this Bill repeated, some months ago, virtually word for word the provisions of the 1937 Constitution regarding the right of the individual to enjoy private property and the benefits therefrom. I do not disagree with that in any way. But we must try to protect, of course — and the general public would not thank us if we did not — the situation where the relatively small landowner, down to perhaps an exaggerated example of the person who owns no more land than that on which his house is built and his front and back gardens, is protected against that front or back garden being expropriated by the State without any right of hearing, or right of appeal on the part of the landowner and without any right to legitimate compensation if, after an independent hearing, it is decided that that land should be acquired by the State. That small landowner would expect that the Oireachtas would defend his small but to him very important property rights and the right to enjoy that property in privacy.
Taking that a stage further, the owner of, say, two, three or five acres of land which perhaps also has been in the family for generations, would feel particularly aggrieved if he were to have that property removed from him compulsorily, without any right to recompense or compensation. He would feel that he had a right to seek to improve that property and to benefit from its enhancement. That is what the Constitution initially and, subsequently the planning legislation, set out to try to do. Equally, there devolves an onus on the Oireachtas to ensure that when misuses of statutory provisions come about, the Oireachtas moves to try to cure that situation.
Deputy Boland went on to talk at some length about the differences of view between various members of the Judiciary in relation to private property rights and effectively, to say that there were divided opinions on these.
Having put on the record of the House numerous references over an eight year period and even earlier to the publication of the Kenny report, it appears that we are all on the same side, basically we are all in favour of doing something about this problem; everybody concedes it to be a problem but, ochón agus ochón, we cannot do anything because the Constitution prevents us. That is the theory put forward by opponents of any type of radical legislative change in this area. It has become a very comfortable moral shelter for people who want to really obscure the main reason for their objections to any type of radical change here. They are not prepared to come out and say they are in favour of land speculation. They are not prepared to state that, all things being equal, they wish they could get a slice themselves. They are not prepared to justify the distortions our orderly land development occasioned by the exorbitant land prices that have obtained over the past 20 years. They are not prepared to say any of those things because it is not terribly popular to do so unless one happens to own some land oneself, unless one happens to be related to people who own land or one has some prospect of benefiting from such transactions. We should recognise that that sentiment exists. The people who privately espouse it should feel sufficiently confident to proclaim it in this House and not pretend one thing when they mean another.
There is a very understandable reason from an historical point of view for that attachment to land. The untrammelled exercise of the full rights of that land should be contained in the body politic and cultural body of the Irish people. One could write a comprehensive history of this island over the last hundred years by confining oneself exclusively to the history of the land struggle, beginning with the campaign initiated in County Galway just over 100 years ago, the step-by-step legislative changes brought about, which parallelled the emergence of a mass political movement resulting in independence in 1992 and ensured that the 1937 Constitution strongly reflected that value system and ethos but the Constitution has not protected the children and grandchildren of those people who had such an attachment to the land. The massive failure of our compensation system — not the planning system — has ensured that this country has been unable to build many of the facilities and urban infrastructural requirements it could have afforded because of the persistent internal transfer of large amounts of community-created wealth from the general body of taxpayers into the pockets of private individuals who, through good fortune or foresight, happened to be in the path of development who up to 1974 were able to reap, untaxed, the windfall benefits of that system.
Whatever else one may say or think about that system, let nobody on the Government side say in relation to the legislation defeated in the past or to the ludicrous impositions now being spancelled in this Bill that we cannot do so because of the Constitution, that basically we are in favour of doing the right thing but, reluctantly, we find we cannot do so because of the Constitution. That is an old refrain I do not accept. Indeed, it is one that perhaps the Supreme Court does not accept. The bluff of conservative politicians in this Parliament is being called by the third arm of the Oireachtas, the Supreme Court.
I might now quote from an article entitled "New Laws `possible' to Solve Planning Problems" contained in a property supplement to The Irish Times of Thursday, 8 September 1988 by Mr. Justice Ronan Keane, a renowned Justice of the High Court. He has specialised in planning law and will be no stranger to many Members of this House. Indeed, I invite the Minister to respond to his article at some stage in the course of our deliberations because Mr. Justice Keane goes on to deal with other aspects of compensation. However he had this to say in relation to the point I am making about the way in which the Constitution allegedly prevents us from doing the right or radical thing:
The constitutional validity of amending legislation of this nature may well be challenged in the courts and I would naturally not wish to pre-judge in any way the outcome of such litigation. But it is clear from the previous decisions of the courts that legislation dealing with such problems will not be struck down unless it amounts to an "unjust attack" on the property rights of the citizen. It should be perfectly possible for the Oireachtas to enact legislation which respects those rights and at the same time, ensures that the planning of our cities, towns and countryside proceeds in an orderly manner. Nor is there any substance in the suggestion sometimes made that the courts will always lean in favour of the property owner. They will, of course, respect the rights of the individual, as they are bound to do, but within those constraints, they have also made clear their concern that planning legislation enacted by the Oireachtas for the common good should be made to work. As Mr. Justice Griffin remarked in one case:
"the purpose of the (Planning) Acts ... is to ensure proper planning and development, not in the interests of the developer, but in the interests of the common good".
I cannot anticipate how the Minister or the Minister of State will respond in relation to these matters and to this charge of hiding behind the Constitution but the Minister's staff will have the time to look at the debates to which I have referred. There are 18 hours of debate with elaborate expositions of the problems relating to the Constitution in relation to the value of building land and the right to compensation. Running through this debate is the basic agreement of successive Fianna Fáil Deputies and Ministers to the proposition but a reluctance to implement it because of the Constitution.
We now know that this argument is invalid not just from the quotation which I have given from Justice Ronan Keane but from the statements of two members of the Supreme Court, on public record at the seminar on the 50th anniversary of our Constitution in the Summer School in Glenties two years ago. Mr. Justice Brian Walsh and Mr. Justice Niall McCarthy both clearly said, and are on public record because of the "Today Tonight" programme on the Constitution and on the proceedings of part of the summer school, that a proper case has never been brought to the Supreme Court, that an effective case has never been presented to the Supreme Court and that people are presuming to second guess the Supreme Court. What these people are doing in some cases subconsciously and in some cases deliberately, is putting into the mouths and the formal decision making process of the judges of the Supreme Court, judgments which perhaps they would like to see made without giving the Supreme Court the opportunity to make such decisions. Once again we have it in this Bill — a restriction on the coming into effect of the compensation claim, relating to the acquisition of property and the changing of the zonings dating from the publication of this Bill, which effectively negatives any possible benefit that might accrue to the community at large.
The present Fianna Fáil Administration, realising that they can no longer hide behind the non-constitutionality argument are attempting to bring in something to give the appearance of activity when in reality, in relation to this aspect of existing use value and the cost of compensation and the method of compensation, they are doing nothing at all. This is a gross abuse of parliamentary time, time which the Department of the Environment could put to better use.
In relation to the abuse of parliamentary time, we had the ludicrous nonsense of the Multi-Storey Dwellings Bill which is now operative and which was a total waste of time. We now have this Bill which will achieve little or nothing if enacted. For the last two years the framework Bill that underpins the legality of the building code for the entire building industry has been stuck on the Order Paper unpromoted by the Department because they want to introduce some amendments, although everybody knows that the framework legislation effectively covers the building regulations which are not being subject to any such amendment. This is a bit of parliamentary bluffing. Tragically the present Minister for the Environment has become renowned for bluff in recent times. It may well be partly the cause of his non-promotion in the last week or so.
In relation to this presumed restriction, this interpretation of constitutionality, why do not the Minister and his Department remove the time constraint proposed in the Bill and get a definitive decision from the Supreme Court in this matter? I am not sure, because of the way in which the Bill is phrased, that if we were to remove the time constraint from the Bill a question posed to the Supreme Court on that point would give us the kind of definitive decision we should have on the whole question of full market value or existing use value which is really at the root of the problems confronting local authorities.
Lest anybody think that the basis of our problems still lies in the unavailability of suburban land, that problem has largely been solved now because of the reduction in the demand and the substantial amount of service land available. That phase of urban development is substantially over as most commentators will concede. What now confronts us and will confront us for the next ten years relates to the regeneration of our existing towns and cities and built up urban areas. We will not be able to ensure that either the public sector or the private sector or combinations of both will be able to assemble derelict inner city land if the present method of compensation prevails, notwithstanding any consolidation that is being engaged in in this legislation.
If this Bill is enacted it will make life easier for some administrators, for some lawyers and for some property valuers because it codifies and consolidates the existing law in relation to the procedures for compulsory purchase and compensation but that is not what we should be doing here now. This is not what should take up the time of this House. We should be talking about radically changing the basis on which compensation is given for land required for redevelopment for the community in such a manner that both the rights of private property and the exigencies of the common good can be protected. This Bill will not move an inch in that direction in relation to the net issue of the Valuation Act 1919 and the basis for determining market value. There are some good points in relation to excluding some aspects and I will deal with those on the appropriate stage.
Some of the recommendations of the building and land committee have been incorporated in this legislation but others have not. Why has the Minister seen fit not to include some of the recommendations? The reality is that the Minister, seeking to get some political mileage, gave instructions when he saw that the Progressive Democrats had produced a Bill on compensation based on some fairly widely publicised cases, so as to come up with something himself. If one reads closely the debate that took place in May of this year and the exchange between Deputy McDowell and Minister Flynn, it is quite clear that this is simply a publicist counter response to pressure that was put on the Department of the Environment in relation to the preservation of woods such as the Coolattin Woods in County Wicklow, where at that stage the Minister saw fit to vote down the Bill the Labour Party had brought in in that instance. He also saw fit to have voted down the Progressive Democrats Bill on compensation. We were to hold our breath and wait for the radical response that was to come from Minister Flynn later in the year.
If this is the sum total of the ingenuity and creativity that resides in the political cabinet of the Minister for the Environment, I do not think any of us should get too excited.
We should perhaps apply to him the same logic he applied to the Progressive Democrats Bill. When it was suggested any changes he wished to make could be made by way of amendment on Committee Stage, he declined that option. Yet, that option is one the Minister has offered to us in his Second Stage speech where he said he was open to constructive proposals and constructive changes and would consider amendments. It seems extraordinary that the Minister can offer that process of parliamentary work to one side of the House when it suits him but refuses to accept that kind of parliamentary procedure from this side of the House if it does not suit him.