SEANAD IN COMMITTEE. - LAND BILL (COMMITTEE STAGE RESUMED.)
I will not move the next amendment standing in my name. It is the same principle as I argued before. The Seanad have recorded their decision, and I am satisfied.
SECTION 32.
Where the owner of a parcel of untenanted land which is vested in the Land Commission by virtue of this Act uses and cultivates the same as an ordinary farm in accordance with proper methods of husbandry; then
(a) If the price of the parcel together with the value of any other lands in the possession of the owner as ascertained by the Land Commission does not exceed £3,000 the Land Commission shall, unless in their opinion it ought to be retained for improvement or enlargement or for utilization in connection with the relief of congestion, resell the parcel to the owner at the said price, if before the appointed day he has undertaken to purchase it at the price; and
(b) if the price of the parcel together with the value of any other lands in the possession of the owner as ascertained by the Land Commission exceeds £3,000 the Land Commission may resell to the owner either the whole thereof at the said price or any part thereof at a price bearing the same proportion to the said price which the value of the part bears to the value of the whole of the parcel as ascertained by the Land Commission, but the advance shall not in any case exceed £3,000, unless in the opinion of the Land Commission it is expedient that this amount should be exceeded, the difference (if any) between the amount to be advanced and the price being paid in cash by the owner to the Land Commission.
I beg to move:—
Section 32: To insert after this Section a new Section 33 as follows:—
"33. The Land Commission may purchase from an owner any demesne, or other land in his occupation adjacent thereto, at a price which, in their opinion, represents the selling value thereof, and in such case may resell the whole or any portion of that land to him as if he were a person to whom advances might be made under Section 31 of this Act."
I am accepting his amendment.
The effect of this amendment will be to benefit, to a small extent, the owners of demesne land, and on behalf of land-owners I beg to thank the Minister for accepting the amendment.
Amendment put, and agreed to.
AN CATHAOIRLEACH
I suppose it is inevitable to make this a new Section? You are altering the numerical arrangement of the whole Bill. I was wondering whether you could bring it in as a Sub-Section and thereby avoid upsetting the numerical arrangement.
I was just wondering that myself. If you will defer the amendment I will get someone to consider that matter.
I beg to move:—
Section 32; to insert after this Section a new Section 33 as follows:—
"33. Immediately after the date of the passing of this Act the Land Commission shall enquire into and investigate the claims of persons claiming to be persons specified in Section 31(c) of this Act (i.e., persons commonly known as evicted tenants), and upon being satisfied as to the genuineness of any such claims shall take steps either to restore such claimants to their original holdings or to provide land for them elsewhere in Saorstát Eireann.”
I consider that the claims of those persons ought to be enquired into. There appears to be a large body of claimants. Some of them probably are not genuine cases, but I am satisfied that in some cases genuine evicted tenants have been passed over under previous settlements and that their cases should now receive consideration. The amendment simply asks the Land Commission to inquire into their cases, to reject the undeserving and to put on their list for land those whom they consider deserving cases. The claim of the genuine evicted tenants is quite as strong as the claim of any congest. Under this Bill all the available untenanted land in the country will pass into the hands of the Land Commission and this is the last opportunity these evicted tenants will have of being provided with substitute holdings, if their claims are passed as deserving after inquiry by the Land Commission. It is a bad policy for any Government, at least not to enquire into the grievances of a substantial number of the citizens of the country. The least they might do would be to make that enquiry. It would cause a great deal of heart-burning if those who consider they have claims are turned down without having their cases enquired into. I hope the Minister will see his way to accept, if not the whole of this clause, at least the part of it that refers to an enquiry.
Has the Senator any idea as to the number of evicted tenants he appeals for?
I saw some figures some time ago and the number of actual claims would be about 400. I am satisfied, however, that a good number of these would not be deserving cases, but there is a large number of genuine cases among them.
I think the persons mentioned by Senator Linehan are covered by another sub-section which states that the Land Commission are to have regard to cases of persons who, or whose predecessors, had been evicted from their holding in consequence of proceedings taken by or on behalf of the landlord and who are not included in paragraph (c) above—that is those who do not come within the 25 years.
I do not propose to go beyond the period fixed in the Act, August 14, 1878. The Section read by Senator Kenny refers to people who were evicted before that and who may come in under the Bill as it stands if the Land Commission so direct.
Is that so? Take paragraphs (f) and (g) of the Section which read:—
(f) Any other person or body to whom in the opinion of the Land Commission an advance ought to be made.
(g) In selecting persons under this paragraph the Land Commission may have regard to the cases of persons who, or whose predecessors have been evicted from their holdings in consequence of proceedings taken by or on behalf of the landlord, and who are not included in paragraph (c) above.
It was only after a good deal of consideration that we agreed to the passing of that Section. It is passed and surely under it an evicted tenant or the successor of any evicted tenant can put forward a claim. It does seem rather going beyond the rights of the case when we have given every evicted tenant or his successor the right to put forward his claim that we should go and make it compulsory on the Commissioners to hold a special inquiry into this part of the matter. I think the evicted tenants and their successors are well able to take care of themselves and to put forward claims in a direct way.
Senator Jameson has pointed out that we have covered every point that Senator Linehan has made already. If there is land in the hands of the Land Commission we will take into consideration any genuine cases of evicted tenants. The Senator did not tell us where we were to get the land. If we bought the land at the price that the Senator voted for yesterday, namely the market value, how would we deal with it?
In reply to the Minister I would say that there is the same method of getting land for evicted tenants or there ought to be as for congests.
This is a compulsory Bill, and the Land is being acquired under the Bill. I cannot see why evicted tenants should not come in on equal terms with congests to whom parcels of land are to be given. As regards the price of the land the Minister states that I voted for a certain price, but land in County Dublin might be worth £100 an acre whereas in other parts of Ireland it might be bought at £5 an acre.
That is all I want to know. I am quite satisfied as long as it is clear that Senator Linehan believes we should deal with evicted tenants on untenanted land bought at market price of £100 an acre in County Dublin and £5 an acre in Connemara.
Amendment put and declared lost.
Section 32 put and agreed to.
SECTION 33.
Where in the case of a holding retained by the Land Commission, the Land Commission do not exercise their powers of resumption, or if they exercise their powers of resumption in respect of only part of the holding, then if the tenant has used and cultivated the holding as an ordinary farmer in accordance with proper methods of husbandry, the Land Commission may resell to the tenant the holding at the standard price, or any part thereof not resumed at the proportionate part of such price applicable thereto as determined by the Land Commission, and may make an advance for the purpose of the purchase not exceeding such sum as with the amount obtained by capitalising at the rate of four and three-quarters per cent. the original annuities payable on the advances, if any, whether redeemed or not, which may already have been made under any of the Land Purchase Acts for the purchase of lands of which the tenant is the proprietor at the date of such resale, does not exceed £3,000, unless in the opinion of the Land Commission it is expedient that this amount should be exceeded, the difference (if any) between the amount to be advanced and the price being paid in cash by the tenant to the Land Commission.
The following amendment stands in my name: Section 33—"To delete the words from the word ‘if' in line 59 to ‘husbandry' in line 61.'" As the amendment is similar to one I have already argued and upon which the Seanad divided I am satisfied with the record on our Journals. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I move: "Section 33 to delete the word ‘may' in line 61 and to substitute the word ‘shall.'" This and the next amendment can go together and I will be satisfied with the decision of the Seanad on one of them. The amendment affects the position of the owner of a retained holding. My examination of the Bill leads me to the conclusion that the greatest injustice in the Bill is done to the unpurchased tenant whose holding is retained. The Seanad may remember the life history of the land of this unpurchased tenant. If the value of the holding is over £3,000, or if the tenant holds under an annuity land valued over £3,000, his holding is automatically retained. The Minister stated that such a tenant still gets his breakfast but I am not quite certain that he takes it with the same relish. The tenant remains in occupation of the holding, but it is liable at any time to be resumed, which means taken over by the Land Commission in whole or in part. Assuming it is taken over in whole, the Land Commission has power to deal with it. They can give it to congests or landless men, and if there is any left over they can do what they like with it. It is purely optional whether they resell it to the original owner. They may resell it but they are not bound to do so. I do not think that is fair but the Seanad can give its decision. I hope I have put the case fairly. I urge that the Land Commission shall be bound to resell and that decision will be affected by the substitution of "shall" for "may."
On the general question I would ask the Minister to consider such an amendment before the Report Stage. It will scarcely do justice to the owners to retain holdings, and it would to a certain extent alleviate their anxiety. The owner, whose holding is retained, should have power to call upon the Land Commission to resume the holding if he so wishes and at least be spared the anxiety of having his property filched away from him piecemeal. It is not going to deal with the whole injustice, but it is going a certain way to relieve the anxiety of this unfortunate being who has the sword hanging over his head from year to year.
I could accept it there, but I think it is only right to say that it would not make any real difference in the powers of the Land Commission.
If the Minister accepts it I am satisfied.
I would like to read the Section first.
It is in line 64, Section 33. I think both words "shall" would be necessary if you accept one.
Leave that question over to the Report Stage.
Supposing by any chance a tenant did not want to purchase it back does this "shall" make it incumbent on him to take it whether he wants it or not? It cuts both ways. Could not some words be put in such as "if the tenant so desires"?
That is exactly the suspicion that occurred to me. That was really the difference between "shall" and "may."
Would it be necessary to have some dates specified?
I do not think it is necessary.
I have an amendment, it is: "To delete in Section 33. all words from the word "such" in line 1 to the word ‘exceed' in line 7." I do not think that amendment is necessary as the Land Commission have power to exceed three thousand pounds. I ask the leave of the Seanad to withdraw it.
Amendment, by leave, withdrawn.
Amendment:—
Section 33. To delete in line 4 the words: "whether redeemed or not," and to substitute therefor the words: "unless redeemed."
AN CATHAOIRLEACH
This has been disposed of already.
I wish to propose:—
To add at the end of the Section the words: "The price of any land acquired under this Section shall be ascertained in accordance with the rules for assessment of compensation provided by Section 2 of the Acquisition of Land (Assessment of Compensation) Act 1919, 9 and 10 George V., Chapter 57, and in exercising the powers given by this Section, the Land Commission shall have due regard to the reasonable requirements of the owner."
This divides itself into two parts. The first of it I do not propose to make a case of because the matter has been decided already in a sense adverse to this amendment in Clause 25 (2). I take it there will be no use suggesting that the price of bog land should be determined in the manner different to the price of untenanted land which we were discussing. But there remains a second part of the amendment in the last two lines.
I will accept that.
Agreed.
SECTION 37.
Where a parcel of untenanted land situate in a non-congested districts county is held under a Fee Farm Grant, lease for lives or years renewable for ever or lease for a term of years of which 60 or more are unexpired at the date of the passing of this Act and the proprietor of the parcel applies in the prescribed manner to the Land Commission for an advance for the purpose of redeeming the rent created or reserved by the Fee Farm Grant or lease or such proportionate part thereof as may be payable in respect of the parcel, the Judicial Commissioner shall, after hearing all persons concerned, apportion the rent if such apportionment shall be necessary and any superior rent and order the redemption of the rent or the apportioned part thereof as the case may be and all interests superior thereto and fix the redemption price thereof. The redemption price so fixed together with such costs as may be allowed by the Judicial Commissioner shall be advanced and paid by means of 4½ per cent. Land Bonds and distributed by the Judicial Commissioner as if the redemption price of the rent were purchase money of land vested in the Land Commission under this Act and the amount advanced shall be payable by the proprietor of the parcel by means of an annuity (charged on the parcel and recoverable in like manner as a purchase annuity) calculated at the rate of 4¾ per cent. on the amount of the advance and where the parcel is held under a lease the proprietor shall acquire and have an estate in fee simple therein instead of the term created by the lease.
I have an amendment; it is:—
"To insert after the word ‘lives' in line 52 the words "renewable for ever."
My object in putting down that amendment is to clear up that point as to whether in the case of a holding held under a lease for life came under the definition of "untenanted land." or not, or whether it only refers to the case of a lease for lives renewable for ever. It is in order to make that point perfectly clear that I ask to have these words put in.
As it reads I think it is clear enough. I understand that is the way it is usually drafted.
If the Minister thinks it is clear as it is, I am satisfied.
AN CATHAOIRLEACH
Suppose it was made read to insert the words "renewable for ever" after the word lease?
I will accept that alteration.
Amendment, as altered, agreed to.
SECTION 38.
Where a holding has at any time been vested in a purchaser under the Land Purchase Acts subject to a superior interest or charge the Judicial Commissioner shall, on the application of the proprietor after hearing all persons concerned order the redemption of the said interest or charge and all interests superior to them and fix the redemption price thereof. The redemption price so fixed together with such costs as may be allowed by the Judicial Commissioner shall, notwithstanding the provisions contained in sub-section (4) of Section 9 of the Purchase of Land (Ireland) Act, 1891, be advanced and paid by means of 4½ per cent. Land Bonds and distributed by the Judicial Commissioner as if the redemption price were the purchase money of land vested in the Land Commission under this Act. The advance shall be repayable by the proprietor of the holding by means of an annuity calculated at the rate of 4¾ per cent. on the amount of the advance and the said annuity shall be recoverable in like manner as a purchase annuity.
I wish to insert the following amendment:—
To insert after the word "them" in line 13 the words "including any Tithe Rent Charge."
This is a slightly different amendment. It is to ascertain whether the superior interests that can be redeemed include the tithe charges
In that case I withdraw it.
Amendment, by leave, withdrawn.
SECTION 39.
(1) It shall be the duty of every person who is entitled to the rents and profits of any land to which this Act applies or who pays any rent in respect of such lands or who receives or pays such rents and profits, or rent on behalf of any other person, to furnish in writing to the Land Commission such particulars with respect to the land in such form and verified in such manner within such time as the Land Commission may by a general or special notice require and prescribe.
(2) The Land Commission shall from time to time publish provisional lists of the lands which will, if not excluded in consequence of a valid objection, become vested in the Land Commission on the appointed day, together with notice of the manner in which and the time within which the objections may be made to the list by reason of the inclusion or non-inclusion therein of any land.
(3) The Land Commission (other than the Judicial Commissioner) shall consider all objections duly made, and there shall be a right of appeal to the Judicial Commissioner whose decision shall be final.
(4) The Land Commission shall publish a final list of lands with respect to which no objection has been lodged, and from time to time as and when objections to other lands have been finally settled a final list of those lands, and a final list when so published, whether after or before the appointed day shall be conclusive evidence that the lands comprised therein became or will become vested by virtue of this Act on the appointed day.
(5) If any person wilfully neglects or refuses to give any information which he is required to furnish under this section within the prescribed time, or knowingly furnishes any information which is false in any particular, he shall on summary conviction be liable to a fine not exceeding fifty pounds or to imprisonment with or without hard labour for a term not exceeding three months.
(6) Any Inspector or other person appointed by the Land Commission may after notice sent by post to the person who appears to be owner or occupier of any land, enter upon the land and make all such enquiries as may be necessary to enable the Land Commission to ascertain the extent and character thereof, and such other particulars in relation thereto as they may require for the purposes of this Act.
(7) Where duties under this section are performed on behalf of the owner of any land by any land agent, solicitor or land clerk nominated with the approval of the Land Commission, he may be paid such remuneration as may be directed by the Land Commission with the assent of the Minister for Finance, and such remuneration shall be paid as part of the expenses of the Land Commission.
(8) Where in the case of the sale of any land an agent has been employed in the management of the estate comprising the land sold, such sum as may be sanctioned by the Land Commission may with the consent of the owner of the land be paid to the agent in Land Bonds out of the purchase money on his ceasing to act as such agent.
(9) Any notice or list required to be published under this section shall be published in the "Iris Oifigiúil” and in such manner as the Land Commission consider best adapted for securing publicity.
I beg to move:
To insert after the word "Commission" in line 29 the words "upon application in that behalf made to him by the Land Commission."
I do not think that is necessary but to avoid discussion I will accept it.
Agreed.
I beg to move the following amendment:—
Section 39, Sub-section (3). To delete in lines 42—3 the words "whose decision shall be final" and to substitute therefor the words "and there shall be an appeal to the Court of Appeal from any decision of the Judicial Commissioner."
This raises an important question of appeals from the Judicial Commissioner. I am anxious to save the Seanad a somewhat lengthy argument and if the Minister would give any indication of his attitude towards the question of appeal, it might very much shorten our proceedings.
I might as well put all my cards on the table at once. With regard to Sub-Section 3 of Section 24, which provides that certain lands can only be taken, now that we have amended it, when there is no other land available in the neighbourhood and which provides for making special provision for purchased holdings, I would accept an appeal to the Appeal Court on any matter arising out of that Sub-Section with the exception of price. On any issue in regard to the acquisition of land I would accept an appeal. That would be when the Judicial Commissioner would decide first and the Court of Appeal afterwards in regard to demesne land, purchased holdings, parcels of untenanted land, and so on. The Section as it stands is to the effect that we shall take even this excepted land specified in Sub-section 2 if we require it for the relief of congestion and if there is no other land available, and in the case of purchased holdings we shall resell an equivalent holding to the owner.
On any question of acquisition under that sub-section, I would accept an appeal to the Court of Appeal; but on any question of price—and I have given the question a lot of thought— it would be out of the question to give an appeal to the Court of Appeal on a question of whether say the owner was to get £5,500 or £6,000. To ask the Court of Appeal or any such tribunal, to give an opinion in such a matter, would be out of the question. This question, as the Cathaoirleach knows well, was argued on the 1909 Act at length in the House of Commons in England and it was the general opinion there, and I think the opinion shared by both sides, that an appeal to the Court of Appeal on a question of price, a question involving the bringing up of auctioneers, witnesses, valuers and people of that sort to give evidence as to price, would be impossible and would not be businesslike. The only suitable tribunal for such a question would be the Judicial Commissioner.
I have already indicated how we are appointing the Judicial Commissioner in relation to the Land Commission, and the arguments that were potent in regard to the 1909 Act, in regard to the Evicted Tenants' Act, where compulsory powers were given also and where the whole question was discussed again, and the arguments that convinced the people who drafted the Convention Report, are as potent to-day, and there is no more reason to-day to think that the Judicial Commissioner in the future will be under the influence of any particular Government than there was in the past. I could not agree to accept an appeal on the question of price. We have put the price here that was recommended by the Convention of 1918. It was a question that was discussed at great length and the exact phraseology of it is inserted here. We will give an appeal under Sub-section 3 on the question of what lands are to be acquired.
On this question of price I should like to make some remarks. I regard this as one of the most vital things that could possibly be discussed in the interest of the country. I should like a ruling as to whether this would be the most convenient time to raise that matter, or would the Report Stage be more suitable? I am sorry to say that I cannot agree with the Minister in making one man judge, jury and all in his own case. I do not think you can ever get justice by leaving all to one person.
AN CATHAOIRLEACH
I think the proper time to discuss this would be on the Report Stage. The whole question might be raised on one amendment which might say that wherever a decision is given by the Judicial Commissioner the appeal shall be to someone else, whoever you wish to name. It occurs in so many Clauses that one wholesale amendment would more satisfactorily cover it.
Your suggestion is that on the Report Stage one amendment could be introduced giving an appeal from the Judicial Commissioner on every question in which he has the last word at present in the Bill, to some other person or tribunal.
AN CATHAOIRLEACH
I suggested that to avoid moving separate amendments to each Section.
There may be Senators here who would think it fair that if there was an appeal on one question there should be on another. I feel extremely strongly on this matter of giving an appeal to the Judicial Commissioner on practically every issue of the Bill.
AN CATHAOIRLEACH
I meant that it might be well to avoid having an amendment wherever there is an indication that where a price has to be fixed it has to be fixed by the Judicial Commissioner; one amendment might cover all. However, as the Minister would prefer a separate amendment to each Clause, it would be better to have it that way. Of course I am not encouraging this, but I am asking which would be the more convenient way.
I do not express any preference.
AN CATHAOIRLEACH
I am not holding out the slightest encouragement that there should be one general amendment.
Under Sub-section 3 of 24.
Under this Sub-section certain matters will come before the Judicial Commissioner. The Land Commission proposes to take certain untenanted land or, perhaps, to resume certain retained holdings, and they have various proposals under which they take these powers. Presumably they apply these powers to correct husbandry. They may say "we are retaining these holdings because we consider that the food-producing capacity of this holding has not been properly developed," or else they may say that it has been farmed in an improper way. There would be grave contention on this point. Litigation of as circumscribed a character as possible will ensue. I want the Seanad to consider the status of this Judicial Commissioner because the whole thing involves the question of judicial independence. I reinforce my argument from the Land Law Commission Bill.
I argue that the Judicial Commissioner is empowered to act both in his administrative and judicial capacity. That Bill says "The Irish Land Commission shall be deemed to have had as soon as transferred a continuous corporate existence in Saorstát Eireann and shall after the passing of this Act consist of a Judicial Commissioner and such number of other Commissioners as the Executive Council shall consider requisite." I think the Judicial Commissioner there is associated in his administrative capacity with the other Commissioners. I have no doubt that the Judicial Commissioner will do his best to keep away from his notice all matters on which he might perhaps subsequently have to give a decision, but I will ask the Seanad whether in reality that is possible as he will be living in the same building and in the same administrative atmosphere as his brother Commissioners, and must be frequently coming into contact with them, and I fancy as Administrative Officer he will be responsible for their decisions as Commissioners. Then conceive what happens.
A party aggrieved at a decision of a body of which the Judicial Commissioner is a member and who is associated with that decision, appeals to the very man who is one of the number who have already given the decision. All through this Bill I want the Seanad to clearly understand what they are doing. I thank the Minister for what he has given us, but I feel I will not get much satisfaction on this fundamental principle, so all I want to know is what we are doing. We are giving the citizens a so-called Judge to try his case although he has been associated already with the matter in dispute in his administrative capacity. I should like to know that there is a precedent for that principle in the laws of any country as I have not heard of anything of the kind. I may be wrong. The Minister may tell me that under previous Acts it has been so. The question of law will undoubtedly arise on these matters that I have indicated when I quoted from the Act.
Under Section 62 of the Act of 1909, especially as concerns its compulsory powers—of course this part of the Bill only assumes that matters of grave constitutional importance regarding compulsory powers are involved—it was laid down "There shall be an appeal to the Court of Appeal from any decision of the Judicial Commissioner under this Section, and the decision of the Court of Appeal shall be final."
Would the Senator mind explaining what that Section dealt with?
It dealt with compulsory purchase.
I think when the Senator quotes a Section he should quote the whole of it. Not only does it deal with acquisition but it gives an appeal only in respect of a particular class of land which was excepted under Sub-section (3).
I would like to consider that point because I have not examined this closely, but I am quite satisfied that a wide power of appeal is given.
Then I will read the whole Section:—
62.—(1) If any person interested in the estate or untenanted land objects to the acquisition of the same under this Part of this Act on the ground (a) that other land sufficient and equally suitable for the purposes for which the estate or untenanted land is proposed to be acquired is available for purchase by the Commissioners or Board, as the case may be, by voluntary agreement at a reasonable price; or (b) that the estate or untenanted land consists of or includes land in the occupation of the owner which is, or forms part of, a park, garden, pleasure ground, recreation ground, demesne, or home farm, or was purchased under the provisions of the Irish Church Act, 1869, for a sum not exceeding two thousand pounds; or (c) that the estate or untenanted land consists of or includes land which has been purchased under the Land Purchase Acts (d), or is the property of a local authority, or is held by any corporation or company for the purpose of a railway, dock, canal, water, or other public undertaking; or (d) that, if the estate or untenanted land is acquired as proposed, other land of the owner adjoining the estate or untenanted land will be injuriously affected; he may, within the prescribed time and in the prescribed manner (a) apply to the Judicial Commissioner for an order restraining the Estates Commissioners from acquiring the estate or untenanted land, or any specified part or parts of the same under this Part of this Act.
(2) The Judicial Commissioner shall hear in the prescribed (b) manner and determine all applications coming before him under this Part of this Act, and for that purpose shall have and may exercise the powers conferred on the Land Commission by sub-sections (1), (3), and (4) of section forty-eight of the Act of 1881 (e), and may, if the justice of the case so requires, amend the final offer by excluding there from any part or parts of the lands described therein, or (with the consent of the owner and the body by whom the final offer was sent) by including therein any other lands of the owner. (3) Where a final offer (f) is amended by the Judicial Commissioner under this section, the body by whom the offer was sent may make such consequential amendments in the offer as appear to them to be necessary, and the offer as amended in pursuance of this section shall be deemed to be the final offer for the purpose of any subsequent proceedings under this Part of this Act. (4) There shall be an appeal to the court of appeal from any decision of the Judicial Commissioner under this section, and the decision of the court of appeal shall be final. (5) An order of the Judicial Commissioner or the court of appeal restraining the Estates Commissioners from acquiring land under this Part of this Act shall remain in force for five years after it is made. (6) The expression "owner" in this section means any person having power under the Land Purchase Acts to sell the estate or untenanted land.
This is a bigger question than the Act of 1909. If that Act did not afford a trial by a judge that was absolutely independent of all administrative concerns, I say it was wrong and it should not be perpetuated. I ask the Seanad to accept that view. There is a sacred principle involved in this that the judge should act with an open mind, and we should shut the door to all possibilities that he should have before him such cases, even in private, let alone in an administrative capacity. I stand on that, and even if the Act of 1909 conflicts with that principle, I say it should not be perpetuated, and I ask the Seanad not to allow the Act of 1918 to red-herring the main issue. As the Statute stands, on a question of law or a question of price, or both, he should be independent, because he must in the nature of things, have been brought into contact with the negotiations and actions which led up to a judicial hearing. I hope the Minister will not force the issue. Even if he gave an appeal to another High Court Judge it would be something, but to deprive a man of that right is, I say, an infringement of the liberty of the subject.
I think if the Minister could see his way, in place of the "Judicial Commissioner" to insert "a Judge of the High Court" it would meet the case. From a common-sense point of view I do not see where the objection lies to a Judge of the High Court.
I may mention a case where it is obvious that an appeal to the High Court is necessary to the owner. Under the compulsory clauses of the Land Act for Demobolised Soldiers, I know a case of a townland where the Land Commission offered a sum of £10,000. On appeal to Judge Ross's Court that amount, after the hearing of evidence on behalf of the owner, was increased to £16,000. Therefore, it is obvious that unless the Judicial Commissioner had a similar hearing, where evidence was produced on behalf of the owner from valuers, he would be very unlikely to make much alteration in the price fixed by the Land Commission. I think it would be an advantage, and in the interests of justice, to have an appeal to a Court of Appeal, even to a Judge of the High Court.
We are arguing a question that was argued on the 1903 Act in all its bearings. Every argument put forward here by Sir John Keane and other Senators was put forward in the English House of Commons when the 1903 Act was being passed, and when compulsory powers were being given to the Land Commission. The same arguments were again used in the 1909 Act, and it was agreed on both sides of the House that though there were certain objections to giving no appeal on the question of price from the Judicial Commissioner, nevertheless there was no suitable substitute. That was agreed, and I think An Cathaoirleach will bear me out in that.
AN CATHAOIRLEACH
The only respect in which my recollection differs is that though the Minister says it was agreed, it was not unanimously agreed but there was, undoubtedly, a majority in favour of it.
That was the opinion even of Conservatives in the Opposition.
AN CATHAOIRLEACH
I would not like to pledge my memory to that. I may have been there myself.
You were. That is so. They discussed this thing very carefully and closely. Anyone, on the face of it, could see the objection to asking the Court of Appeal to decide questions—they are generally Equity Judges, not exactly suitable to such work—whether the price should be £5,500 or £5,520. We are not on the question of price or value. The Court of Appeal would be an ideal court to decide on the interpretation of the Act, but to say what the price should be of a particular area of land is to ask the Court of Appeal or any other body of High Court Judges not used to that sort of work, to do something which, according to the discussions of the Acts of 1903 and 1909, they were not suitable for and which the Judicial Commissioner, though not exactly ideal, was the most suitable person to do. The opinion of the Conservatives during that debate is fairly summed up by saying that there was no better substitute. That is a question of fact. Why was that their opinion of the Acts of 1903 and 1909? What objections did they see to going into the Court of Appeal when they were anxious to give the vendors every fair play. There was an amendment to that effect, and why was it the general opinion, both of the leading Conservatives and Liberals, that there was no suitable substitute to the Judicial Commissioner?
Anyone who knows anything about Land Commission operations will see it at once. On the question of price, to bring into the Court of Appeal auctioneers, land valuers, and all the rest, would be really asking the Court of Appeal to do something for which they are not peculiarly suited as a Tribunal. If you get a capable Judicial Commissioner who is accustomed to dealing with these things he would give more satisfaction. Senator Sir John Keane has been protesting too much that all he wants is to give the Seanad the facts. He started to quote the 1909 Act to support his contention that that Act gave an Appeal to somebody other than the Judicial Commissioner. The fact is, as he read it out, that the only appeal under that Act to the Judicial Commissioner was an appeal on the question of acquisition and only on the question as to whether the land came within the exceptions—whether it was demesne land and whether other lands sufficient and equally suitable were available.
These are the only questions on which the 1909 Act gives an appeal. That gave no appeal on price. I am not saying too much when I say it was the general view of the English House of Commons that there was no other suitable tribunal. I feel that it would do a terrible lot to hold up and wreck the Bill and make its workings arbitrary if there was an appeal on every question. If there was an appeal on every question that we give the Judicial Commissioner a say in, the Bill would never operate. On the question of price an appeal, in my opinion, would make it more arbitrary. There has been an effort to show that the Judicial Commissioner is part of the judicial machinery of the Land Commission. Sir John Keane with his usual frankness quoted one Section and left it so.
I am sure if I did it was quite accidental. I only had the Act put in my hands a short time ago and I was directed to this Section and dealt with that only. If I excluded any relevant matter I apologise.
AN CATHAOIRLEACH
I am afraid that the Minister was hardly justified in making that reference to the assumed frankness of Senator Sir John Keane. I am only speaking now from what I have heard and seen here during this debate, and I do not think there is any justification for the suggestion that the Senator was in any way wanting in candour.
I agree. I will withdraw that expression.
AN CATHAOIRLEACH
I am sure the Minister did not mean it in any disparaging sense.
The Section he quoted was Sub-Section (2). It must be remembered that this is only an amending Bill and that all the previous Land Acts apply. This Bill specifically continues the previous existence of the Land Commission—it shall be deemed to have continuous existence. The functions of the Judicial Commissioner were carefully defined in all previous Land Acts and all the Acts were carefully drawn and all the duties that were assigned to him were carefully scanned with special reference to the fact that he was the arbitrator between the Land Commissioners and the vendor. This Land Commission Bill in the appointment of the Judicial Commissioner makes two things perfectly clear: (1) That he must be a High Court Judge assigned to the work by the head of the Judiciary, not by the Executive Council. The Executive Council cannot appoint him. (2) That the Land Commissioners themselves are a totally different body appointed by the Executive Council and are only ordinary civil servants. They had the status of County Court Judges. They have not under this Act. They are appointed by the Executive Council as heads of Departments. They are the administrative and executive head of the Land Commission and they do all the administrative work. The functions of the Judicial Commissioner have been defined in previous Acts and are specifically defined in this Bill and any functions assigned to him have always been assigned to him in the light of the fact that he must be the final arbitrator between the Commissioners and the vendors.
I do not say that he has not administrative functions. He has some small administrative functions but that was essential in the nature of the case. What I say is absolutely accurate, that all the Land Acts, realising on the one side the special position, and on the other, the fact that no other tribunal would be equally suitable, assigned his functions to him with great care and defined them with great care. The point that Senator Sir John Keane made now has nothing in it on the merits. He is in name part of the Land Commission and the mere statement contained in that Section 2—which says that the Land Commission shall consist of a Judicial Commissioner and the Land Commissioners—and insisting on the point that he is part of the Land Commission, without reference to the fact that his peculiar position has been carefully defined in all Land Acts, is merely confusing the issue. There are no merits in that point. It is merely a point that could be made easily and which takes a good deal of explanation to meet. That is all that is in it.
I have here a report signed by Lord MacDonnell, the Bishop of Ross, Lord Oranmore and Brown, M.J. Barry, J.J. Clancy, Michael Knight, and G.F. Stewart. I do not think anyone would call them Bolsheviks. Here is what they say on that question of price: "In such a case the Judicial Commissioner in fixing the price, failing agreement between the owner and the Estates Commissioners, is to have regard to the fair value of the land to the owner and to the Estates Commissioners." We have abolished the Estates Commissioners and called them Land Commissioners. There is no occasion to have a sort of pooh-bah arrangement.
I wish to point out that the amendment does not concern the question of price at all, and this Section does not deal with price.
It has this concern, the Court of Appeal would have some functions on the question of the principles of price and the principles of valuation. That would be the Court proposed to decide what is the meaning of resumption value. On the question, whether the land to be paid for is worth £5,000 or £6,000, the only suitable tribunal is the Judicial Commissioner. If there is an appeal on price to the Court of Appeal it will, in my opinion, do a considerable amount to throw out of gear the working of the Land Commission without doing any good whatever to the vendor or the tenant.
The recommendation of those persons whose report I have read says that the price should be defined in the Act as a fair price having regard to the fair value of the land to the owner and the Estates Commissioners. We have put in that. It was in the 1920 Bill. None of the previous Acts gave any appeal to anyone else except a Judicial Commissioner —neither the 1903 nor 1909 Acts. I say here considering all the difficulties, considering the times and everything else, we have not done badly at all in just putting in exactly the same provisions in regard to this question as were suggested by the body I have read out, and that were followed previously as far as appeals are concerned by the British House of Commons. I ask the Seanad not to press this amendment.
As the Minister has gone so far as to read a certain portion of the Report I would like to ask whether it goes on to say that there shall be no appeal from the Judicial Commissioner as to whether he has given a right price or not.
It does not. I quoted from the point of view that I had put into the Bill itself the exact recommendation as to how the price should be arrived at—the recommendation of a very conservative body. On the question of appeal I quoted the precedent of the English House of Commons that discussed it at length in the 1909 Act.
The Minister has told us a great many things about what other people said and how nothing could possibly be better. I do not know what evidence he has to show that. If it is repeated sufficiently often it might have a certain amount of weight. There is no evidence that there should be no appeal from the Judicial Commissioner. We are quite satisfied with him as far as he goes, but on the question of untenanted land we want an appeal to someone else.
The question of whether there is an appeal from the Judicial Commissioner under the 1903 and 1909 Acts is one of fact which Senators can verify. I have said there is no appeal.
At the present moment I do not think so. We are legislating for the future. What was in the Bill of 1920 and so on is really irrelevant. What we want to do is to make arrangements which will be fair to everyone and best for the country in the future.
If there is any doubt Senator Sir John Keane has the Act and can refer to it.
I have been listening to this debate to try to bring to it the test that I bring to every vote I give. Will the amendment, if pushed, wreck the Bill or not? I have listened to the Minister to find out what grounds he would give me for forming the opinion that if there is an appeal to the Court of Appeal it would so alter the conditions that it would wreck the Bill. I must say he has not convinced me. He based his main argument against the Court of Appeal being used on the fact that it would not be the proper body to discharge such a function, and that it would interfere with the position of the Judicial Commissioner or of the Land Commission. Suppose we grant that. The Court of Appeal might probably not be the right body to decide such a matter, still I think an independent High Court Judge, having nothing whatever to do with it could be a fair and reasonable individual to hear arguments for and against a certain price. I think the Minister has met us to a very considerable extent in what he has offered in regard to appeals on Sub-section 3 of Section 29. How far that goes to meet Senator Sir John Keane I do not know.
The main point the Minister made was that he was adamant on the question of appeal with regard to price. I wonder will he look into the matter again. If it is merely that he doubts that the Court of Appeal is a good court to go to, will he look into the question of another independent High Court Judge? It is hard to understand that it would absolutely upset the whole machinery of the Bill if such an appeal was allowed even on the question of price. There is no question, I think, as to how it would be viewed by the persons affected by this Bill. I think anyone who has heard it discussed and knows the feelings of those who are affected and who knows how far this Bill goes beyond the Act of 1909, would say that we might go a little further as Senator Barrington stated, as a purely Irish body in giving a little more protection as regards appeal than was given by the British House of Commons or the British House of Lords. I would again ask the Minister to consider whether he is quite right in thinking, even as regards the question of price, that it would wreck the Bill. I listened to his arguments to see if I could find out why it would wreck the Bill, and I honestly confess I have not heard that yet. They may be there. If that is so, and if it is only a question of the Court of Appeal being the proper body, would he consider another Judge of the High Court? As this Bill goes beyond anything we had before, and has given rise to doubts in the minds of people affected, if they had an independent High Court Judge to whom they could appeal, when, in their opinion, a decision was flagrantly wrong, it would be an enormous relief.
I do not think, if the Judicial Commissioner is, as I am sure he will be, from what the Minister states, a Judge of the High Court, a very high-class individual, there will be a great many cases that will go beyond him. People are not so fond of litigation, and a well-known upright Judge giving his decisions in a right and impartial way will bring about a condition of things that people would not care to go beyond his decision. If cases do arise where people would wish to go beyond it, I do not see how it would wreck the Bill for the Minister to allow it even on the question of price. I cannot see how it would. It would be on every side taken for granted that he had met a genuine case genuinely, and it would be a great relief to everybody affected by the Bill.
I do not think that this would really wreck the Bill. That is a very strong word to use. But it would delay the work of the Land Commission if this appeal were accepted. It would delay the operation of the acquisition of land, and there would be hundreds of cases to be re-heard. The Minister has said, and said very truly, that all sorts of people would be called in, land agents, owners, tenants, proprietors. Let me give you an instance. Let me draw an analogy from this. You can wreck a motor car by running it for ever. You have only to go on long enough running it and in time it must smash up. That is what I think the Minister means. The delays would be continual and enormous. I heard this argued over and over again, and when you introduce a question of price you re-open all those difficulties, which I have shewn to the Seanad. I am not in love with the Bill, not in the least. But I see the necessity of this measure, and I see the necessity of the Seanad passing it as soon as they possibly can, considering the immense stress of business that is before the Oireachtas of this country.
The question raised by the amendment is one which even those of us who do not know a great deal about the intricacies of land purchase are very much interested in. At first it seemed to me that to make an appeal to the man who was really a member of the body from which you were appealing, was not really a good law or practice. But on further consideration I am inclined to think that the Minister is right, that this is not really an appeal from one court to another, but it is a case of providing that the Judicial Commissioner will really be an outside body, as distinct from the Land Commissioners, who have no legal training. With regard to the appeal on price, I have had a conversation with an experienced Irish lawyer, a Conservative, and he told me that it would be a great blunder if the Oireachtas were to agree that there would be an appeal from the Judicial Commissioner on the matter of price, because it would add greatly to the cost, and it would ensure no more accuracy or possibly as much accuracy in the matter of price. He said you may have two men in the box before you. One swears this and one swears another thing, and if you have intelligence you can have a pretty good idea of which of them is lying. If, on the other hand, you get two statements signed, it will be extremely difficult, and the appeal would be of little value unless you had the persons before the Appeal Courts. This would add enormously to the expense. For that consideration I think the stand taken by the Minister is the wisest one.
I understood the Minister to say that everywhere in the Act where acquisition is concerned, he will give an appeal?
Acquisition under Sub-Section 3 of Section 24.
I should like to say a word in reference to the remarks of Senator Douglas, that it is not a question of one witness lying or the other witness telling the truth. It is not a question of that at all. It is a question whether the bald facts and figures are there. I can give you an instance of the case. We can never forget that this Bill is entirely different from any Bills passed before this. It gives power to buy the land compulsorily. It has always been held in the past and I hold now that land should never be bought unless the man from whom it is compulsorily taken should be given the full value. Why should property be taken away from one man and given to somebody else unless the man is fully paid for it? As long as compulsory power is there, it alters the case entirely. I can give you an instance which illustrates the difference very clearly. I am aware of a case in the country in which the Congested Districts Board have power compulsorily to acquire land. They went down and they proceeded to prepare an estimate to acquire this land compulsorily. The proprietor said, "There is to be an appeal in this case, we will produce all our figures before the Judge of Appeal, and then you can acquire my land. We are sure they will give us justice." The result was they did not acquire the land compulsorily. If compulsion was taken out of this I would have no objection, but as long as there is compulsion there, and as long as it is possible that a man's land may be taken, and only a half or a quarter of its value given, I think it is absolutely necessary to have an appeal. I hope the Seanad will be impressed by the very grave and weighty words which Senator Jameson has addressed to them.
We are dealing now with amendment 42 (a). That is an appeal on the question of the acquisition of any land. In fact this amendment does not deal with prices. It is a question of acquisition. I stated what I would be prepared to do in regard to acquisition, to give an appeal in respect of any land acquired under Section 24 (3). I want to say one word in answer to what Senator Jameson has said. He suggested a tribunal. When this question was being discussed before, that was the very point raised. What is the tribunal to be? That was the difficulty they found themselves in. Because taking even the question of prices it will always be an issue what amount of money there will be to give for the land. And you will have a Judicial Commissioner deciding that question day after day and becoming absolutely an expert on that question.
If you give a general appeal to a High Court Judge you would be giving it to a Judge of exactly the same status as the Judicial Commissioner, and what you would be doing, in fact, is appointing a new Judicial Commissioner. The Judicial Commissioner is and must be a High Court Judge. If you give an appeal on every question or even if you give an appeal on price alone, because price will occur week after week, you will be really appointing a second Judicial Commissioner. You would not be appealing to any new tribunal. I am dealing now only with the suggestion that has been put forward by Senator Jameson. Once the Land Commission would get going appeals would come in every day and every week and the second High Court Judge of the King's Bench would be dealing with this question and would have his hands probably fuller than any other Judge.
You disagree apparently with my contention that the appeals would not be many? We all know that in the ordinary cases before a Court, we have a Court of Appeal in front of us, but not many of us go there.
Let us suppose there were many appeals. You will be making a second High Court Judge a second Commissioner. You would have no tribunal really because the second High Court Judge would, in fact, become a second Judicial Commissioner, and he would happen to be by chance just over the other High Court Judge. If you like you could put the Judicial Commissioner over him. Take any two High Court Judges and appoint one of them a Judicial Commissioner and the other the Judge of Appeal. It would be really the same Court. In the case of the second High Court Judge you would really be appointing a man who could do no other work if appeals were many. Would it really be advisable in view of the cost and slowness? Of course it would be impossible if there were a general appeal on all other questions; it would hold up the whole Land Commission.
If you gave a general appeal from the Judicial Commissioner on every question, then you would have the Land Commission functioning under impossible circumstances. When they were discussing this question under the 1909 and other Acts that is what they felt. Supposing there was only an occasional appeal, it must be remembered that this is work that essentially a Judge becomes expert at. There is not much law involved. It is not like interpreting a Statute; it is not legal work of that kind. It is work at which a Judge becomes an expert and if he is an efficient Judge and deals with these matters every day he can get through the work much more quickly and uniformly than if there were five or six Judges dealing with it, and appeals would come before one now and one again. The work would be more uniform under one Judge and more quickly dealt with, and I venture to say would be much more just. If there is an occasional appeal before a Judge who has not been dealing with that sort of work and who may be dealing meantime with Divorce, Probate and other cases, more than likely, his decision, being a superior one to that of the Judicial Commissioner, would be a decision that might upset the decision of the Judicial Commissioner. It might be very much lower or very much higher on the matter of price.
The decision might upset the whole uniformity of the Judicial Commissioner's decisions, which, quite conceivably, and more likely, would be fairer. What I mean is this; the decision of the superior Judge might possibly err on the side of the landlord or on the side of the tenant. The Judge would be more liable to error if he were only dealing with cases occasionally. The work is essentially expert work and the judgment would be a superior judgment. If he erred on one side, until there was another decision on a similar set of circumstances, which would probably come soon, then, the Judicial Commissioner's decisions would be put out of gear. For all those reasons there would gradually be developed a situation in which you would have in the nature of the case a tremendous number of appeals and the Judge would become, in fact, a second Judicial Commissioner. This question was debated on its merits; it is no new question, and I put it very strongly that it will be a serious hardship and is much more likely to be as serious a hardship to the owner as to the tenant if you set up a tribunal such as was suggested by Senator Jameson. That is on the question of price. On the question of acquisition of land, which is the subject of the amendment before us, I am willing to accept an appeal under Sub-section (3), Section 24.
AN CATHAOIRLEACH
The debate must be confined to the amendment. I allowed it to range over the whole question of appeal. This is not a question of price at all and therefore I want the Seanad to confine its discussions to the amendment.
I have heard nothing from the Minister to relieve my anxiety on this matter of the sanctity of the Judicial temperament. I hope the independence of the Judiciary would be like the integrity of Caesar's wife, beyond reproach. I claim it has been clearly established that nominally, in law, in atmosphere and in propinquity, the Judicial Commissioner is part of the Land Commission and exercises his administration accordingly. That being so, I should have thought it unnecessary to argue any further the question as to a principle of high constitutional importance that is involved.
Apparently judging from remarks that have fallen more especially from Senator Douglas, whose reasoning power is usually exceptionally acute, I see there is a doubt on that important principle. The Minister led us to believe that he is giving an appeal on all questions of acquisition.
Acquisition under Sub-section (3) of Section 24.
I accept the correction. He is giving an appeal on the question of whether a given parcel or estate comes within the exact sections. I am sure the Seanad will appreciate my great difficulty as a layman without any legal advice arguing these intricate matters. The Minister fortifies himself behind the 1909 Act when he says that practically in identical cases an appeal was given. Therefore the argument is satisfactorily made in respect of precedent. This Bill gives new and vastly more increased powers than the 1909 Act. To say that the 1909 Act in equity covers this Act is, I do not think, fair or equitable. I need hardly tell the Seanad of the additional powers which are given here. There are powers of acquiring land compulsorily outside the Congested Districts. I understand that the 1909 Act only gave power to acquire within the congested districts. They also give power, the greatest power of all, to retain unpurchased tenants' holdings and parcel them out as they think fit. Those are new and wide powers undoubtedly. The Minister says that the 1909 Act applied all over. That only affects my argument to an insignificant extent. It did not give these wide powers of retention and resumption over unpurchased holdings.
Those are new features and will involve very wide and important considerations. My argument is that those new powers, unprecedented on the Statute Book of this country must, in the essence of the thing, lead to doubtful interpretation. Here with enormous new powers we are not to allow an appeal beyond the Court of first instance and the Court of first instance is not, nominally anyhow, divorced from the Minister's responsibility. The Senators can follow the case as well as I can. It is a question of acquisition under new and very wide powers that have not existed probably in any statute in the world and surely in the interest of justice and fair play an appeal should at least lie higher than the Court of first instance. The Minister is continually asking us to stand upon the report of other people, for instance the report of the Convention. Need I hardly say the responsibility is ours absolutely and, while it is interesting and may help us to our decision, we have to form our own judgment.
I beg to move that a division be taken.
I would appeal to Sir John Keane not to press this or future amendments to a division but to be content with the taking of a show of hands. I think we all recognise the great ability with which he is putting his view and many of us agree that there are grave dangers. Sir John Keane has emphasized his protest in the strongest possible manner from the point of view of the tenant purchaser and the future occupiers of land. He has pointed out the grave dangers the unrestricted exercise of the powers of the Land Commission will have upon the future prosperity of the country. With those views some of us sympathise fully. Having regard to the mass of business before us and with a view to the appeal made by the Government—the responsibility rests with the Government—I would respectfully suggest that he would not press the motion to a division.
I regret I cannot accept that suggestion. We are a young body embarking upon our first attempt at constructive legislation. Our decisions may have a serious effect on the country. Therefore I must ask in matters of this kind that a permanent record be taken.
Amendment put.
The Seanad divided: Tá, 9; Níl, 30.
Tá
- William Barrington.
- Richard A. Butler.
- John C. Counihan.
- Henry Seymour Guinness.
- Rt. Hon. Andrew Jameson.
- Sir John Keane.
- The Earl of Kerry.
- Thomas Linehan.
- Col. Sir William Hutcheson Poe.
Níl
- James Green Douglas.
- Thomas Westropp Bennett.
- William Cummins.
- Peter de Loughry.
- Dowager Countess of Desart.
- J.C. Dowdall.
- Michael Duffy.
- Sir Thomas H. Grattan Esmonde.
- Sir Nugent Everard.
- Thomas Farren.
- Oliver St. John Gogarty
- Rt. Hon. the Earl of Granard
- Mrs. Alice Stopford Green.
- Cornelius Joseph Irwin.
- Patrick Williams Kenny.
- Joseph Clayton Love.
- Edward MacEvoy.
- James MacKean.
- John MacLoughlin.
- Edward MacLysaght.
- Thomas MacPartlin.
- General Sir Bryan Mahon.
- The Earl of Mayo.
- William John Molloy.
- James Moran.
- Michael O'Dea.
- John Thomas O'Farrell.
- William O'Sullivan.
- Mrs. Jane Wyse Power.
- The Earl of Wicklow.
Amendment declared lost.
SECTION 44 (1).
On the vesting of any lands in the Land Commission under this Act, all sporting rights as defined in sub-section (2) of Section 13 of the Irish Land Act, 1903, including such sporting rights as may be superior interests, and all fisheries appurtenant to the said lands shall vest in the Land Commission subject to any lease then existing as if the owner or owners had agreed to sell them at such price as in the absence of agreement shall be fixed by the Land Commission (other than the Judicial Commissioner) or by the Judicial Commission on appeal from the Land Commission, regard being had in fixing such price to the fair value of the sporting rights and fisheries to the Land Commission and to the owner or owners respectively:
Provided that in the case of tenanted land the sporting rights other than fishing rights and fisheries shall be deemed to be of no appreciable value.
I move:—
Section 44, Sub-Section (1).
To delete in line 54 the words "Provided that," and to add at the end of the Sub-Section the words: "Where it can be shown that the sporting rights, other than fishing rights, on tenanted lands are of appreciable value, they may be vested in the Land Commission and dealt with in the same manner as is provided in respect to fishing rights and fisheries."
I lay emphasis on the word "or," because Senators will see it is assumed that no shooting rights on tenanted land are of appreciable value, and therefore, they should be made over without any consideration being given for them. The sporting rights I am contemplating are not those which would interfere in any way with the tenant, that is to say, not in cultivated fields where the tenant might reasonably object to anyone trampling on his crops and doing damage. The rights I am contemplating are those generally known as rough shooting on waste land and mountain. Within my knowledge there are many such stretches of mountain which are included in tenanted land. Some mountains, at all events, would not come under that definition, and the rights to them might be held to be quite separate from any connection with the tenanted land, and would remain with the owner. The ones I mean are where there are small farms with half a dozen fields of low-lying ground and a stretch of rough mountain pasture running up from those farms to the skyline. It is quite true that in most cases of that kind the shooting would be of very small appreciable value, but nevertheless it is of value to those living on the spot, and would increase in value if the rights were retained by the State.
What I suggest is that such rights where they can be shown to be of value should be treated in the same way as the fishing rights; that they should be taken over by the Land Commission who would then be in a position to deal with them, and could either let them to those who had exercised them in the past or to anyone else whom they might think fit. If they were allowed to go with the land I maintain that nobody would be any the better for it after a short time. Every one who had got a gun would be out on his particular bit of land and would very soon destroy all the game on it. From that point of view I think that a certain national asset, apart from the preservation of wild life, would be destroyed. It is an advantage to a locality to have a certain amount of that ground, especially in the regions of the West, as it would tend to keep resident gentry in the district, which must be of some advantage to that district in the way of employment. It would tend also to bring visitors to the district.
I have in mind regions in the Co. Kerry where there are hotels which in the past have taken some of those areas of mountain, and where they have had people using those hotels during the winter months, when they would probably not be used otherwise, so that they might have plenty of fresh air and exercise and the excitement of pursuing animals, perhaps more or less visionary. All that I think is of great advantage to the district. I do not think that it need be any liability to the State. I have distinctly aimed at a permissive form "may" and not "shall." It would be up to the owner of those rights to show that they were of some value. Naturally the State would not want to buy a pig in a poke. They, I suppose, would say, "What are you prepared to give for them." He might say, "I am prepared to give you £5 or £10 or £20 a year," whatever it might be. The Commissioners might be able to buy them from him and I apprehend they would give him only such a sum as would make it quite sure that the rental would fully compensate them, so that they would not be losers over the transaction. The great point to my mind, apart from any individual enjoyment, is that if this is not done there may be large tracts of tenanted land without a bird on them. The grouse, woodcock and snipe would disappear and the country would be the poorer for that disappearance.
I know a good deal about the West of Ireland particularly Connemara, and I wish to support this amendment in regard to the shooting rights.
This amendment does not refer to the fishing rights but only to sporting rights. The fishing rights are reserved to the Land Commission. This is a rather difficult and a rather embittered question, and has attained an importance, both in regard to tenants and, perhaps, owners, that it hardly deserves. For a long time this question of sporting rights has been a bone of contention in all sales under the 1903 and 1909 Acts. We were faced with the position that it would be quite impossible to reserve sporting rights on tenanted land. As Senator the Earl of Kerry has stated very fairly, the sporting rights on tenanted land are negligible as far as 80 per cent of the land is concerned and of very little value in the balance. Knowing the value—the exaggerated value if you like—that both sides attach to these sporting rights I took great care to get all the advice I could, both from the landowners and the tenants point of view, before drafting the Section. The information I got was that the sporting rights on tenanted land are of no appreciable value as far as 80 per cent. is concerned, and on the remaining 20 per cent. would, in all the circumstances, be of very little value. I asked myself was it worth while for the sake of rights which are of very little value, and only apply to about 20 per cent. of the land, to put the whole question as an issue. I decided it was not, on the advice of parties interested on both sides of the question.
On the facts I think the Seanad will agree that it is not worth while raising the whole question. If the amendment were carried it would mean that we would have to examine every holding to see what sporting rights are on it, to see whether any particular holding came within the 80 per cent. We would then have an embittered wrangle on the question of what was the value of the sporting rights on the other 20 per cent. It would be found in the end that they were worth practically nothing. Whatever they would be worth, if they were reserved to the Land Commission the landowner would have to get a price and an advance would have to be made to the tenant in respect of that price. Is it worth while to put the Land Commission to that trouble for the sake of that small percentage of holdings, and the very negligible sporting rights on the balance, to raise the whole question? You would raise an extremely important and embittered question. I want to assure the Senator that I have taken the trouble to enquire from lawyers, who would know, and I am told that a mountain on which tenants have grazing rights is not tenanted land in practically any case.
Not even in the case I gave of a few fields at the bottom and a big grazing area behind on the mountain?
To decide whether in any specific case it is or is not tenanted land would require a judge and all the facts to be carefully set out, but I am advised by lawyers, who know the facts from both points of view, that mountains on which tenants have grazing in most cases are not tenanted land. I would ask the Senator not to press the amendment.
The Minister has stated that he is advised by his Law Advisors that grazing on mountain and bog is not tenanted land.
That is not exactly what I said. I asked some lawyers who know the circumstances in the country, whether as a rule, mountain land in Ireland, on which tenants had grazing, is in fact a portion of the tenancy, and they tell me as a rule it is not.
That mountain land, as a rule, is not part of the tenancy. Senator the Earl of Kerry explained what he meant, in a case where there is a little cottage at the bottom of the mountain, on which the tenant had a grazing right. The particular wish of Senator the Earl of Kerry is similar to my own, I imagine. Like myself he likes to be able to go out and amuse himself of an afternoon and shoot a few snipe or grouse in the particular district in which he lives. I should like to do that in the same circumstances. Senator the Earl of Kerry is not the only one who would like to do it in Kerry. He adduced the case of the hotels that have very large tracts of mountain, the sporting rights on which attract visitors. This class of sport is an asset to the country and it brings a great many people who spend their money here. There is another aspect. I agree with the Minister that in some cases it is a very delicate and disagreeable question to have to argue before the Dáil. The fact remains, however, that if the tenants are allowed to wander over these tracts and bring dogs with them, it is not only a question of shooting, but the dogs eat the grouse eggs. With regard to snipe and wild duck, I believe they can take care of themselves. I know perfectly well that there were professional poachers even before the late trouble who made their living by shooting snipe and sending the game to the Dublin market. Excellent shots they were! I hope the Minister will consider this matter. He said that eighty per cent. of the tenanted land of Ireland was out of the question with regard to sporting rights. I agree but as to the twenty per cent. it must be remembered that Ireland is a country with a hollow in the middle, most of which is bog— the Bog of Allen, which is untenanted land.
On which you can shoot to your heart's content.
And with mountains around.
On which you can also shoot.
I did not gather that from your remarks. There are people on these mountains that can make themselves very disagreeable.
I had such an experience in Donegal. I suggest to Senator the Earl of Kerry, that this matter can be arranged by mutual consent. The fact cannot be got over that some people wander over this land with dreadful dogs that eat the grouse eggs. I saw a whole moor in Donegal destroyed by them. I used to put out poison for grey crows and it killed them. They used to take the chickens from the doors of the cabins of the peasantry of Donegal. I will tell you a story of what happened one year. A man came to me stating that his dog was poisoned. I asked him where was the dog. He said "I do not know but he is poisoned." He next came to the river where I was fishing and said, "I found the dog." I said "You are a nice fellow after telling me he was poisoned." He said, "well, the dog is dead." I told him he was a nice sort of fellow. I had to pay him for the dog.
In view of what the Minister has mentioned I do not desire to press the amendment.
Amendment, by leave, withdrawn.
I move:—
To add after the Sub-Section a new Sub-Section (2) as follows:—
"(2) In disposing of any sporting rights which may be vested in them under the terms of this Act the Land Commission shall have due regard to the future preservation and development of such rights, and shall have power, where they consider that such object would be advanced by so doing, to let such rights to the former owner thereof."
This amendment is directed towards the fishing rights which Senators know are reserved by this Bill to the Land Commission. The Bill does not state what procedure will then be adopted by the Land Commission. It was in the hope of eliciting a statement from the Minister that I put down the amendment. I am not contemplating in this amendment the large rivers of Ireland; they are more or less able to look after themselves. It is more difficult to interfere with the big river. You may get an odd poacher on it but the fish cannot be exterminated. What I have in mind is the little river, about ten or twelve miles long, in which there are about half-a-dozen pools. When the water runs to a very low level the fish can be seen from the bank, and enterprising persons can get them all out of it in half an hour. I am afraid the local population do not realise the habits of the salmon, and realise that if you kill salmon in a river you will probably have none at all there in three or four years. Salmon are born in the river and stay there for two years. Then they go to the sea for another two years, and come back fully grown. If you kill salmon in little rivers the stock will soon disappear. It was with a view to the importance of preserving fish in the future that I put down the amendment.
It seems to me that the Government could give some indication that they would let the fishery rights on these rivers to the former owner or some responsible person, that is some person who would be able to employ people to protect the fisheries and not let them go to ruin. If that is not done you will very soon have all the fish in the rivers exterminated. There might be a temptation on the part of the Land Commission to say "The fishing rights are bought, why should not this poor fellow fish in that pool?" If he were given permission to fish, the fear is that he would not only fish legitimately with rod and line, but that he would not resist getting out a net and perhaps put in a small charge of dynamite there, and take out the fish and in that way the whole fishery would be destroyed. That is why I put down the amendment.
It was because we realized that the sporting rights and the fishing rights were valuable commercially, and valuable for letting them to people for sport, that we reserved them to the Land Commission. You can divide both the sporting rights and the fishing rights into two. Those are of commercial value. I am almost certain that fishing rights will be handed over to the Fisheries Department. As far as commercial fishing is concerned, it will be the business of that Department of State to look after the commercial fishing. With regard to the sporting side of both fishing and shooting, we realise that they are extremely valuable, that there is a big income to the State from them, and these small fisheries that are not of commercial value will be carefully preserved by the particular Department of State to which they are assigned. These will be let to people who will take them. As far as this portion is concerned the former land-owner is one of the most likely to become the purchaser.
Under the Bill as it stands, we have ample power to let it to him, or to any other person who is willing to pay rent for the sporting and fishing and shooting that will be carefully preserved and looked after. There is another reason why we preserve those fishing rights and that is that rather it will have the effect that there will be no abuse of the fishing of the rivers adjoining the lands we have purchased, and hence no loss higher up stream or lower down stream on the river which runs through the owner's demesne. From every point of view the right thing to do was to preserve the sporting and fishing to a State Department and that will prevent the constant abuse of the fishing rights in the demense. We have got the power under the Bill to let these sporting rights. The person who is most likely to take them and pay for them is the landowner and other people who have money to spare.
AN CATHAOIRLEACH
Do you wish me to put the amendment?
I have explained that it is already in the Bill.
I do not wish to press the amendment.
Amendment, by leave, withdrawn.
