With regard to the amendment to Section 2 which appears on the Order Paper in my name, an amendment proposing to delete "sub-paragraph (ii) of paragraph (b)", may I say that when I put it down I was under the impression that the purpose of the sub-paragraph was solely to deal with new Land Commission houses. I have since ascertained that it will deal also with old houses on land acquired by the Land Commission. I can quite see that, in the case of old houses, though not in the case of new houses, there would be need for revocation, and therefore I am not proposing to move the amendment.
Land Bill, 1945—Committee
Section 1 agreed to.
SECTION 2.
Amendment not moved.
I move amendment No. 2:—
In paragraph (b), sub-paragraph (iv), in line 41, page 2, after the word "fit" to insert the words "and subject to the provisions of the next succeeding sub-paragraph"; and after sub-paragraph (iv) in that page to insert the following sub-paragraph:—
(v) before enforcing a direction given by them under this section the Land Commission shall have regard to the amount of capital and the equipment possessed by the allottee at the time the holding or parcel was allotted to him.
I hope that the Minister will be able to accept this amendment in some form and that the Land Commission, before they proceed to do what they are empowered to do under the section, will give consideration to the conditions which existed for the allottee at the time that he entered into possession of his holding. I think it is correct to say that in both Houses there has been a general acceptance of the principle embodied in this Bill. Neither the Minister nor anybody else can be the least enthusiastic about evictions. That will be the feeling, no matter what justification there may be for the action taken by the Minister when he proceeds to take possession of one of these holdings. The Minister, of course, has information available to him with regard to the conditions of each allottee which has not been presented to us. We know what takes place when a tract of land is being divided. People are put into possession of holdings. The Land Commission, and others who, perhaps, may be interested in them, act with the best intentions in the world in regard to them, but no matter how good the intentions may be, you will still find people who, for one reason or another, fail to make good when they get possession of one of these holdings.
Put two persons in possession of two parcels of land, side by side, under exactly similar conditions. One man will make good and the other man will not. It will be necessary to make better provision for one man than for the other. It is hopeless to expect any allottee to make a success of his holding if he finds himself without adequate capital or equipment and, particularly, if he finds himself in a period when he must battle with falling prices. Before the Land Commission finally decides to retake possession of a holding and turn an allottee on to the roadside, consideration should be given to the question of the chance which that man had obtained. His position should be reexamined from the standpoint of the capital and equipment he had, so that the possibility of his making good at the time he got the parcel of land would be assessed. All the responsibility cannot be put, under certain circumstances, on the allottee for his failure. If a man received a farm under conditions which made it impossible for him to be successful, the Land Commission should take that into account. If the Ministry give a man such an opportunity, they should ensure that the conditions are such as will make it possible for him to achieve success. If the promoters of a new industry have to borrow money, their capital is made secure by the action of the Government in affording such protection as will ensure a price-level which will enable the industry to meet its obligations. There is a certain similarity between the position of an allottee and that of the promoters of a new industry. If a man has no plough and no horses and has not the capital necessary to purchase them, he will succeed in agriculture only by a miracle. I do not think that the Land Commission can justly claim to have discharged its obligations fully to the allottee by merely providing him with a parcel of land, four bare walls and a couple of out-offices entirely insufficient for the necessities of the farm.
The step proposed by this Bill is an extreme step—a thing which has not yet been attempted by a Government here. I am sure the Minister is not in the least enthusiastic about it. No matter how unworthy a man may be, to turn him out of his home after a certain number of years is an unpleasant task. In a district, you may have one or two persons favourable to that course of action. They will be favourable if they think that the parcel of land will be divided and that additions will be made to their own holdings.
Generally, however, such action will create an unfavourable atmosphere, which will not be in the least pleasant for anybody. If the allottee never got a chance, the Land Commission will be taking a decision which can hardly be claimed to be equitable. Consideration should be given to the circumstances under which the allottee commenced to operate his holding before the Land Commission finally decide to exercise their powers and resume possession.
I gave this amendment considerable thought. Having done so, I was still at sea. I was anxious, therefore, to hear what the Senator had to say as to how this amendment might affect the section. This section solely deals with residence in the houses on the holdings. There is no difficulty in giving an allottee an opportunity to live in the house provided for him. We are most anxious that the allottees should do so and we have given them the fullest opportunity to do so. Any shortage under which they may labour, in respect of either capital or stock, has no reference to their capacity to live in the houses. This section is solely concerned with inducing, or compelling, men who get houses at the public expense to live in those houses. I cannot see that the amendment, as explained by the Senator, has any reference to the question of residence in those houses.
The amendment should have been put down to Section 4. The purpose I have in mind would, probably, be served by considering it in conjunction with that section.
I have no objection to its being so considered if the rules of the Seanad permit that to be done.
That cannot be done now. The amendment may be put down to Section 4 for the Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 3:—
In page 2, sub-paragraph (iv), after the word "purchaser" in line 47, to insert the following words:—"Alternatively the Land Commission may calculate for the holding or parcel of land in question an enhanced annuity of such annual amount as will fully cover interest and sinking fund on the capital cost of providing the said holding or parcel of land, and the purchaser may sell his legal interest in such holding or parcel subject to such enhanced annuity".
I should like to emphasise that, in proposing the amendment which stands in my name, I am not doing anything contrary to the main purpose of the Bill. On the contrary, I am suggesting a real addition to the powers of the Land Commission. Some people might hold that the Land Commission have too much power already and I can quite conceive its being argued that, if the Land Commission is to fulfil its widest economic possibilities, there are very good reasons why either its powers should be immensely increased or substantially diminished. I shall not go into that question at the moment. This amendment, certainly, proposes a real extension of the powers of the Land Commission. Owing to the way the Bill is drafted, I found it necessary to introduce this suggestion in relation to Section 2 of the Bill but, if the principle of the amendment is accepted, I should like, on the Report Stage, to have it re-drafted so as to cover the case of Section 4, as well, which refers to the point about operating a holding in accordance with proper methods of husbandry. If this amendment were adopted, it would emphasise the fact that every time a person gets an allotment from the Land Commission he obtains a real subsidy from the State, which might be expressed either in terms of capital value—as the Banking Commission Report made quite clear, the capital value in question approaches, and in some cases exceeds, £1,000—or in terms of annual value, equivalent to a subsidy from the State of the order of £2 an acre.
I am not at the moment arguing whether it is sound public policy to pay people £2 an acre for owning land or not but I would like to put somewhere on record in black and white, and in the land code itself, the fact that this method of purchasing land from the Land Commission does involve a subsidy of a very substantial amount whether it be looked at from the point of view of the capital value or the annual payment. The main purpose of the Bill is to get rid of what I might call the bad bargain made by the Land Commission and, provided that is done with all due regard to humanitarian considerations I, personally, have the utmost sympathy with the desirability of getting rid of undesirable tenants, people who take the bounty of the State and make no positive contribution to an increase of the National income.
The method of getting rid of undesirable allottees proposed in the Bill seems to involve the maximum amount of friction and administrative difficulty. My alternative method is a method of squeezing them out by financial pressure in addition to the possibility of using the method in the Bill, which is the method of throwing them out. The amendments suggest that any allottee who fails to live in a dwelling provided by the Land Commission—and I hope at a later stage to be able to add an allottee who fails to cultivate his holding in accordance with proper methods of husbandry— may have the annuity on the holding fixed no longer at the present nominal rate which leaves uncovered the major part of the capital cost to the State of providing the holding, but raised to such a higher level as will cover the annual cost to the State, by way of interest and so on, of providing that holding. The difference there might amount to £2 an acre or it may be more. The effect of fixing such an enhanced annuity to an allotment or holding in the case supposed would be that, if permission to sell is given, the tenant would not be able to profit by the capital value of the difference between the present low rate of annuity and the higher annuity that I propose. If he could only sell subject to this enhanced annuity then, presumably, the market value of the holding would be reduced by the capitalised value of the difference between the new rate of annuity and the old rate of annuity.
It is of the utmost importance that these people who have failed to do their duty by the State should not be allowed to, or facilitated in, cashing-in on the State bounty and turning it into an increment of value of the order of £1,000. The reason for allowing free sale subject to that annuity would be that it would have the effect of diminishing the market value of the land, and if he were allowed to sell he would probably get a price for that land of a very small amount indeed. That would be an easy way of encouraging these people to get out and make an honest living in some other way and it would allow another person to come in who would be prepared to buy the land on those terms and would be better qualified to make it a success.
Another objectionable feature of the present system is that some of these tenants get this land, pay this nominal annuity and let the land on the 11-months' system, becoming in fact a kind of 18th-century landlord on a small scale and profiting on the land to the amount of the difference between the annuity they pay and what they get from the lettings on the 11-month system. The margin between the annuity per acre and the amount from the letting of the land on the 11-month system is a very wide margin indeed. It may be £5 or £6 an acre and it is a considerable temptation to a man to get an income out of the land in the easiest possible way, to get a return from that land without any work on it. One effect of raising the annuity to the higher level would be to skim some of the cream off this unearned income. It might still make it possible for him to make something by letting the land— to get something from the difference— but it would lessen the difference, and in a few years when prices of land are not so high, and lettings not so profitable as they are now, that difference would disappear and the man would have no interest in keeping the land but would have to sell it. There again the tendency would be to squeeze him out rather than throw him out.
I would emphasise once more that this amendment does not interfere in any way with the powers proposed to be conferred on the Land Commission but this would be another alternative power which the commission might find it convenient to use in certain circumstances. I hope the Minister will receive it sympathetically and that other Senators will be persuaded to give it their support.
Senator Professor Johnston has said that his amendment is not contrary to the main purpose of the Bill. I think it is not only contrary to the main purpose of the Bill but completely contrary to land policy altogether. If we do decide to remit the only qualification an allottee may have which enables him to sell the land given him free by the people of the country we ought to pursue that to its logical conclusion and when the second man has failed we ought again to permit him to sell it at double the annuity to the incoming individual. Then we should let the second man go out, as the Senator has said, to make an honest living in another way, having made a dishonest start by getting capital to which he is not entitled.
I do not agree at all that we should do anything like that. No allottee, unvested, can sell the land which has been given him by the Land Commission without the authority of the Land Commission, and if we substitute for that the idea of giving freely authority to the allottee to sell the land simply because he has through incompetence or any other reason failed to meet the commitments in the agreement I think we would be going completely across land policy.
I do not know what the Senator means by making it clear that there is a subsidy involved in this question of land division and allotment. Of course, there is a subsidy, and a very heavy subsidy, and it cannot be justified except it has been devoted towards the destruction of a real economic evil and for the development of a great social purpose. If we give land and a house to any individual arbitrarily selected from among people, many of whom may be far better entitled to land and better able to work it, and if we, because of his incompetence or recalcitrance, give him free permission to cash in a gift given him by the people, I think it would be very wrong. Of course, the present amendment does not relate at all to the question of residence, but nevertheless, not only should I reject it but I would be very much surprised that any Senator should support it.
The idea put forward by Senator Johnston pleased me for one particular reason, that it drew from the Minister on the last occasion the admission that nobody paid the slightest attention to the amount of the annuity there was on land when that land was being sold by auction or in the ordinary market. However, apart from drawing that admission from the Minister, I could not support the amendment itself. I hope the Minister will implement his statement on the last occasion, the statement which was made by me on the first occasion that he and I had any discussion across the floor of this House and which he then rejected; and I sincerely hope now that his change of policy will shortly be implemented in a measure brought before the Oireachtas.
So far as the Minister's case on this particular amendment is concerned, I must confess that I agree entirely and absolutely with him. I feel that it is a great measure of progress that we now have that view on the method and the reasons for the distribution of land, that that view is expressed by a Minister of the present Government. It certainly is not my impression that it was the originally published view of the Minister's Party in 1932 and immediately afterwards. Credit must be given where credit is due and I do want to give credit to the policy adumbrated by the Minister, which must be the correct one. If Senator Johnston's amendment were to be considered, it should also be considered that anything that a bad allottee was getting by way of purchase money should to a large extent be paid—as well as being paid to the State—also to the man who was dispossessed and whose land was taken from him by the Land Commission at a fraction of its value.
I do not agree with the amendment at all. There is one matter, however, which might be considered by the Minister. This Bill prevents the sale of a holding to which an addition is about to be made until that addition is consolidated with the original holding and vested, but once the additional land and holding are consolidated and vested there is nothing to prevent the tenant purchaser from selling the entire holding. Perhaps the Minister would like to amend that in some way. It seems a strange thing that a man cannot sell until the addition is vested, but then the Minister has no power to prevent the sale.
How does this arise on Senator Johnston's amendment?
It is a matter for consideration by the Minister. I see what is in Senator Johnston's mind in proposing the amendment. His idea is that this Bill allows a man to get away with an extra price because of an addition of land and he suggests that a higher annuity should be put on. That really would not be of much effect at all. As Senator Sweetman and the Minister said, the annuity does not interfere very much with the price to be paid. It is a strange fact that a man cannot sell, if he gets an addition of land to his holding, until it is vested, but the day it is consolidated and vested he can sell without any objection. That is a matter to be considered.
I am surprised at the attitude of the Minister and I can only conclude that I failed to make my policy quite clear. I am convinced that, if this is contrary to his policy, it certainly is not contrary to mine, and of the two I think my policy is the better. Clearly, even as things stand now, once a holding has been vested in a successful allottee he can and often does sell it and sells it at a market price higher by reason of the fact that the annuity to which it is subject is a purely nominal annuity. In fact, that is the Minister's policy, but it certainly is not the policy I would recommend or stand over. I would like to see a provision —which, unfortunately, is not contained in this Bill—which would enable the State to prevent people, even when holdings are vested, from cashing-in on the capitalised value of that difference between the nominal annuity and what should be the full annuity.
The whole point of my amendment was that, if you raise an annuity from its present nominal level to the full economic level, you are putting an annual charge on the land, you diminish by the capitalised value of that difference the market price at which it would sell. If there is any reason at all in the people who buy land, they will give considerably less for land bearing a charge of £3 or £4 an acre in 60 years or so than they would give for the same land subject only to the present low annuity. So, while allowing free sale subject only to this enhanced annuity, I sympathise with the desire of the Minister to prevent people cashing-in on the bounty of the State. It was only because I was convinced that this higher annuity would diminish the value of the land to practically nothing in normal times that I was prepared to allow it at all. I do not want to encourage these people to cash-in on the bounty of the State. I was only allowing them to sell because I thought they would cash-in on nothing or next to nothing and that it was an easier way to get rid of them than that proposed in the Bill.
Senator Johnston is an economist, and I would say Senator Counihan is not, but I think that Senator Johnston would get a good deal of enlightenment about the price of land from Senator Counihan. The bigger annuity would certainly not diminish the price of land in the market.
That is a question of fact.
There is not a shadow of doubt in my mind that it would make no difference.
If it were £10 an acre, it would make a difference.
I assume that the Senator would agree that a stabilised price is brought about roughly by a reasonable balancing of supply and demand. The demand for land is not at all balanced by the supply available. If Senator Sweetman thinks he has scored over me by getting an admission from me in regard to something which is common property, then I wish him joy of his triumph. Everybody knows that the land annuity is never taken into consideration in the market if there is an auction. There is no doubt about that.
Surely, if it were a matter of £3 or £4 an acre, it would make a difference to the market value of the land?
That is possibly true.
It would make a difference to the man working the land.
That is just the point. If we permit a man who has failed in his duty and responsibility, simply because he has failed, to sell the land and then put an annuity on the incoming tenant, we are putting a burden on him which is altogether unfair. If you raise the rental by £3 or £4 an acre, I am sure prices would not be so good with the auctioneer. That is only by the way. What we are concerned with is the economic position of the country and if you did raise the rental of land by £3 or £4 per acre, I think your economics would have gone completely "wonky".
Senator Sweetman had some criticism to offer of land policy. I have made some study of land policy since the 1923 Act was passed. It has affected me always, being a countryman and being interested in farmers. I do not think that in any statement of mine in regard to land policy I have made any change in the fundamental view of what land policy is. Senator Baxter, I think, talked about the Land Commission being interested in land and other people having certain interests. I am afraid all the time when I come into this non-political body that I shall find that it is saturated with politics. To my mind, Senator Sweetman's first amendment had a very definite political tinge and I was surprised that he withdrew it. This amendment would not bring about the condition which the proposer thinks it would bring about and therefore I shall have to oppose it. I could not accept it and I do not think that anybody who gives thorough consideration to the matter could give it any backing.
The Minister said that under my proposal we would be putting a burden on the incoming tenant but surely the truth is that we would be really taking a burden off the incoming tenant. You would be putting perhaps an increased annuity on him, but you would be diminishing considerably the capital cost at which he might acquire the land. As I see it under present conditions, with the annuity at its present nominal figure, an incoming purchaser might well pay £1,500 for a typical holding bearing an annuity probably of £1 per acre, but if my proposal were adopted, taking into account the fact that the annuity would be more in the region of £3 or £4 per acre, the purchaser would be likely to get that holding for £500. His burden in respect of the annuity is increased by an extra £2 or £3 per acre but the other burden is diminished by a substantial amount, the amount that represents the capitalised value of this differential advantage. As the great handicap under which small holders suffer is lack of adequate capital for the running of their farms, it would be of great advantage if they could get possession of the land at a relatively low capital cost and conserve their capital for properly stocking and equipping the land. That is one of the advantages I have in mind which this proposal would confer if it were adopted.
The Minister has again stressed the fact that he agrees that the amount of the annuity charged on land does not in any way affect the purchase money. I quite sincerely want to know from the Minister, if he does admit that, how he can possibly suggest that there is any justification for a redemption of the land purchase annuity charged on land when land is being acquired, and why he will not ensure when that land is being acquired by the Land Commission, exactly the same machinery for fixing prices will be adopted as is already in existence for the resumption of holdings? The Minister seems to think that I am anxious to score a personal point off him in that regard. We are all anxious to score points if we can but I am interested in something very much more than that. I am interested in raising a principle which the House considered last year, which the Minister on that occasion vehemently opposed and which the Minister has in the House to-day said is correct. When the Minister comes in and tells the House that the whole basis of that argument is correct we are equally entitled to hear from the Minister when he is going to implement it.
It is quite possible that the arrangement proposed by Senator Johnston could be put into operation. Let me again state what I consider to be land policy in the narrow sense for the moment—the creation of as many economic holdings as possible in the country. We can all have our views as to what an economic holding is. I have views somewhat different from those which some of my predecessors had. That may be because I lived in a different part of the country and saw conditions as they existed in my area, but I think we can agree that land policy roughly is to try to create as many economic holdings as possible in the country. You would get men to purchase land even at the enhanced value which would be placed on it if we adopted the proposal put forward by Senator Johnston, and you might eventually get what would be regarded by some people as economic holdings but, as regards the creation of economic holdings generally, I do not think you would arrive at that desirable end by this means because by putting an annuity of £3, £4, or whatever the figure would be per acre, on that land, you would ensure that the person who would be capable of buying that land would not be an agriculturist. He would more likely be a man who had made money in activities other than those of agriculture.
One of the reasons, in my opinion, why the price of land is so high is that the money that goes into the purchase of land is made in the pursuit of activities other than those of the land. Is it not good policy to try as far as possible to get land into the hands of farmers, into the hands of agriculturists? My own view is that as far as it is humanly possible—and we cannot get perfection in the Seanad sense always—we should try to have only farmers on the land. I have argued time and again that landless men who have no land outlook should not be getting small parcels of land, what are called accommodation holdings. I think it is ridiculous to be splitting land up into small patches all over the country. To my mind the trend in agriculture is towards larger holdings. I have not the same ideas as Senator Counihan, of course, as to what constitutes a larger holding but, nevertheless, we would tend to stabilise farms and keep families on the land for hundreds of years, I think, if we could create such farms as would give a reasonable livelihood to the farmer who keeps to the land and who divorces his mind from trying to add to his income by activities outside his farm.
I have known in my youth in the County Cork many men with small farms—very small farms—who were, according to the local standards, extremely well off, but they were well off because they were road contractors or something of that nature. They could not have been well off otherwise, because the holdings on which they lived were incapable not merely of giving them a reasonable standard of living but of enabling them to make any provision for their children. I think that a farm should be large enough—if we are to stabilise farmers in this country—to enable a farmer not only to live in reasonable comfort but to make reasonable provision for his family. We are all anxious to score a personal triumph. I am glad of the admission from Senator Sweetman.
I will go back again for a moment to Senator Johnston. If he does not understand conditions on the land, and I think he does not, let us take housing in the cities. A house in the city, provided the annual rent is not an abnormal rent, sells for just as high a price as if it were a freehold. That has been my experience of housing in the city.
As long as the rent is not too high, that is certainly true.
I do not think that I have changed my mind in any way in admitting to Senator Sweetman something that is common knowledge about the price of land. You cannot stabilise the price of land. Land, at the moment, is booming, and it would be madness to expect the Land Commission to go out on any extensive campaign to purchase land. It would be wrong to the taxpayer, to the allottee, to the owner of the land and to the whole lot of them together. The Senator, as a lawyer, particularly as a lawyer, knows that we can only have approximate justice, and that we cannot always agree. Senator Kingsmill Moore shakes his head. He is a man who has been in the Four Courts for a long time and he suggests by his action that he believes that there is abstract, perfect justice to be had in any court in any part of this imperfect world.
When we are legislating we should aim at it as a thing to be done, and there is no excuse for not doing that.
At the moment I was try to talk economics with Senator Sweetman.
I am sorry if I interrupted.
I agree that we should try to aim, as far as we can, towards perfection in any legislation. The difficulty in doing that is that, in order to get justice in regard to land in this country—from the Deasy Act of 1860 down to 1946—legislators have been passing Acts in regard to land, and still we feel that we have not quite got to the end of justice. I will make an admission. I do think that, in the purchase of land—I do not intend to go back into the past—the Land Commission must try, as far as possible, to go near the market value of the land that it acquires, or else leave it there.
That is very fair.
I hope that Senator Johnston will withdraw his amendment. As a farmer, and despite anything the Minister has said, and has so very well said, I still think that Senator Johnston does know a considerable amount about farming. I want, however, to put this to the Senator. What can be done on land if, side by side, you have two farmers, one who is paying £3 or £4 an acre—I think the Senator even mentioned the figure of £10—and the other farmer who has land at 7/6 an acre?
On a point of explanation. I only mentioned the figure of £10 by way of showing that, if the annual charge was high enough, it would make a difference to the market value of the land.
That is true, if the Senator puts it as high as that. Would any of us who are land-minded stand for the principle of what we would term rack rents, because a rent of £3 or £4 an acre would be that? I do not know what Senator Counihan, or people who live near cities and thereby enjoy advantages that are not open to the rest of us, would say on that, but surely such rents could not be termed otherwise than as rack rents. If there was a farmer who had so much capital that it enabled him to pay such a rent out of his land, I do not know where the rest of us would stand. Instead of getting rents reduced, if Senator Johnston's argument were to be accepted, it would mean that it would be paying the way for an outcry for the raising of rents on every farmer.
I was very much struck by a remark that was made to me on one occasion when I was coming out from a sitting of the Agricultural Commission. Senator Ó Buachalla was my colleague on that occasion. A group of people representing certain interests in this country, gathered on the steps of a house in St. Stephen's Green after they had given evidence before the commission. Those people were very much concerned about the production of one type of agricultural commodity. The production of that commodity—as a matter of fact it was the pig—had fallen to a very low level. A gentleman on the steps turned to me and said: "I think you will have to put the farmers back on rack rents again in order to get pigs produced." The man really meant that and would like to have seen it done. It might be that you could get such conditions of slavery revived, that farmers would work 16 hours a day, and that in order to hold on to their land they would pay these exorbitant rents. As an individual farmer, I do not think this House should stand for that. Neither do I think that Senator Johnston would stand for the implementation of that principle, because I am certain that it would have a very adverse effect on the attitude of our people towards the productivity of the land, as well as the responsibilities which the ownership of land carries. I do not think that the members of this House should be a party to that.
My amendment has at least served this purpose, that we have had a very interesting discussion on it. We have had a confession of faith from the Minister which was interesting and which in some, though not all, respects commands my sympathy. If I have got myself in the wrong with the Minister and Senator Baxter I am not, I suppose, going to achieve very much by pursuing this matter. What I had at the back of my mind was the desirability of reducing the capital cost of acquiring the ownership of land from the point of view of people who have not got any land and who are prepared to buy land without asking the help or assistance of anybody—that is pure private enterprise in the acquisition of land.
The Minister does not sympathise with the idea of getting new blood into the farming industry. He seems to contemplate turning the farmers of Ireland into a kind of hereditary caste and to discourage the entry into the farming business of other people whose origins and occupations were formerly not agricultural. I totally dissent from that point of view. I think it would be an admirable thing for Irish agriculture to have an infusion of new blood and enterprise, and to have new capital put into it by people who are not farmers at all, and I would like to see every facility given to people of that kind to acquire land and to use it in the best interests of themselves and the country.
There is one other point. The Minister holds that it makes no difference to the market value of land whether the charge be £1 an acre or £3 an acre. In isolated cases, that may be so, if people lose their heads at auctions, but taking it by and large, I think you will find that the market value of land bearing a charge of £3 an acre is going to be less, on the average, than land bearing an annual charge of £1 an acre, and that difference will be the capitalised value of the differential charge.
If the Minister is right in holding that it makes no difference to the value of land whether it bears a charge or not, then, as Senator Sweetman pointed out, there is no case at all for the Land Commission deducting the capitalised value of the unredeemed charges from land which they buy from the present owners with a view to redistribution. As we all know, it is their practice to deduct from the so-called price of the land the capitalised value of any unredeemed charges on it, and the unfortunate who often had to part with land at a very unattractive price suffered through that further diminution in days gone by, and, I take it, still suffers from it. If it is sauce in one case, it ought also to be sauce in the other. Why should not the Land Commission accept the same principle in both cases?
Is the amendment being withdrawn?
So far as Senator Johnston's last remarks are concerned, I hope that I am not entirely misunderstanding the remarks of the Minister.
The Minister has admitted, I think, that the Land Commission price of land should be the market value, and if it is going to be the market value, then it will have to be based on the resumption method and not on the acquisition method to which Senator Johnston has referred. I think that the Minister is to be congratulated that he has admitted quite frankly the mistakes that have been made in the past and he has told us, in his view, that the mistakes will not be made again in the future. I think he deserves to be congratulated on that point.
So far as the amendment is concerned, it is going to be perfectly clear that except in isolated instances, such as those where a man dies and leaves a widow and children unable to work a holding, the Land Commission will not be prepared to give permission to sell. Unless there are very special circumstances the Land Commission should not allow a private person to cash-in on anything given him by the State with the object of remedying social evils. I do not think that there can be, so far as we on this bench are concerned, any difference between the Minister and ourselves on that point of view.
I think we have strayed very far away from the first question. I would not like the Seanad to read into anything I said that the Land Commission will agree in future that a body like the Seanad or anybody else should act as a price-fixing instrument. The Land Commission must be the final arbiter of the price offered. I do not believe that we must take into consideration, even more than in the past, the question of market value. When this question of market value was being discussed before, cases were put forward to prove that the Land Commission was guilty of something of which it should not have been guilty but which was an exceptional case.
I would say that the Land Commission is a very—I would say the most important—Department of State. I believe the sinews of the State come from the land, not merely in money but in human ability. We all come up from the land.
There is nothing to prevent new blood or new brains from being introduced to the agricultural world. There is no great desire, of course, on the part of men who make their living in cities and towns to go back to the land. We need not be very worried about that but anybody who does want to buy land may find plenty of vested holdings coming up for sale now and again, and if he is anxious to come into business he can do so, but what we are trying to prevent is the purchase of unvested holdings which have been created by the Land Commission in pursuit of social and economic principles, being absorbed by people for whom the Land Commission or the Government should not at all be concerned.
Is the amendment being withdrawn?
I suppose so.
Amendment, by leave, withdrawn.
I move amendments Nos. 4 and 6:—
In paragraph (b), sub-paragraph (v), page 3, after the word "purchaser" in line 3, to insert the word "and"; and to delete the words "and that the purchaser has failed to comply with the direction" in lines 4 and 5.
In paragraph (b), page 3, to add at the end of the paragraph a new sub-paragraph as follows:—
(vi) A certificate under the Common Seal of the Land Commission certifying that the purchaser has failed to comply with a direction under this section shall be prima facie evidence for all purposes of the fact so certified.
Both amendments are interdependent and I think that the principle in Senator Johnston's amendment No. 5 is covered.
I think I need not move the amendment in your case.
The only difference between the two is that the Land Commission is permitted to certify conclusively that it had given a direction and had not revoked it. The real difficulty, I feel, arises because of the absence of some definition of residence, and before I say anything on this, I admit quite frankly at once that in any case I have come across, the tendency of the Land Commission has not been too stringent, but rather too generous, in not being even more severe because people had not lived in their holdings. I am not making a case for this amendment on the ground that the Land Commission has in the past been over stringent and over severe in insisting that holdings become occupied.
It is fully admitted that allottees have gone to enormous lengths to defeat the efforts of the Land Commission to ascertain whether in fact the houses were being lived in. But, there are dangers, and there should be some tribunal other than the Land Commission itself to decide this question. I do not think it is correct to leave a man under a possible sense of grievance that he has not got a fair deal. Even if he has got a perfectly fair deal, there should not be a possibility of leaving him with a sense of grievance. Where the Land Commission is going to be plaintiff and judge in the same case, a man must feel he has a grievance. It is absolutely certain that that will happen. I put down this amendment not so much because I am very enthusiastic about the exact method I have suggested, but from the point of the general principle. I suggest that the Minister should introduce something into this section to make certain that the case put forward by the Land Commission —that a man has not been living on his holding—will be examined by some tribunal, preferably the Circuit Court, and, having been examined by that tribunal, that the man will get a chance of offering objections to the Land Commission's case and proving that, in certain respects, the Land Commission case may be quite honestly but entirely incorrect.
It seems to me that the proper person to do that would be the circuit judge. I am perfectly willing that the Land Commission proof should be accepted unless it is disproved. I am prepared to put the burden of proof on the allottee but I feel very strongly that, where there is a risk of turning a man out of his home, some body other than the Land Commission should be the final arbiter as to whether the case put forward is correct or not.
I support the point of view put forward by Senator Sweetman though I prefer Senator Johnston's amendment—that the words "prima facie” be substituted for the word “conclusive” in paragraph (v) of Section 2 (b) of the Bill. In my opinion, there is too great a tendency on the part of Government Departments to arrogate to themselves judicial functions. When the Land Commission gives a direction to an allottee to reside continuously in his house to their satisfaction, the question will arise whether or not he has so resided. The Land Commission constitute themselves prosecutors, judge and jurymen. They give a direction and then they take it upon themselves to consider whether that direction was complied with to their satisfaction or not. On the Second Reading of this Bill, I commented on the fact that this section did not provide for the making of statutory rules governing the procedure to be applied in connection with the directions to be given by the Land Commission. A “direction by the Land Commission” is a very vague phrase. There is nothing in the Bill to show in what manner that direction will be given—whether it will be given by word of mouth, by a Land Commission inspector, in a letter written by the Secretary of the Land Commission to the allottee or by an advertisement in a newspaper. Then, the section provides that the Land Commission can certify as conclusive evidence that a direction was given and that that direction was not complied with. In other words, the Land Commission can arrange the form of the direction and also constitute itself judge as to whether or not that direction was complied with. I have no sympathy whatever with those allottees who do not reside on their holdings but, when we are making law to deal with that situation, we should follow well-known principles in legislation—that the direction which must be given should be the same for everybody, that it should be given in a stereotyped form which would be applicable to every allottee, that it should be served in a special way and so that a copy of it would be evidence that it had been so served. We all know that allottees and persons who obtain holdings are not what I might call legally minded. Oftentimes, a notice may arrive from a Government Department which is cast aside or overlooked or not understood. If there were a stereotyped form of direction, the allottee could take that direction to a solicitor and obtain his advice as to his position under this measure. Otherwise, there will be a certain amount of chaos, confusion and, ultimately, possible injustice.
I object to this section on the ground that it seeks to make the court a kind of rubber stamp. The Land Commission issue a certificate, which is deemed to be conclusive evidence. Is there anything for the judge to do except to give a decree? Why not adopt the direct method, which is adopted in the case of land annuities, and send a warrant for possession to the sheriff, instead of going through the farce of instituting proceedings in a court and then throwing down a certificate which is conclusive evidence? In those circumstances, the judge can do nothing. His hands are tied and the defendant's mouth is shut. It is like going back to the old days of criminal procedure when a man who was charged with felony could not give evidence or call witnesses on his own behalf. Therefore, I say that this is a practice which should not be extended—the practice of conferring powers on a Government Department to issue conclusive certificates.
We have had discussions from time to time upon what I might describe as the extraordinary powers of Ministers, because a Minister's power, strictly speaking, is an executive one; it is to execute the laws as made by the Legislature. But Ministers intrude into both the judicial and legislative spheres. They intrude into the judicial sphere by constituting themselves judges of fact and deciding the rights of parties. They enter into the legislative sphere by making Statutory Rules and Orders. This section would be very much improved if, firstly, it provided for the making of statutory forms governing the procedure to be adopted in connection with directions to be given by the Land Commission. Secondly, I think that the certificate to be given by the Land Commission should be only prima facie evidence. There is nobody in this world without stain, nobody is without some form of blame, some way or another, and if the loose system in this Bill should be allowed to pass there is a great danger that injustice may be done without either the courts or anybody else being able to prevent it. I say that where the Land Commission take such power upon themselves, the allottee, however unworthy he may be, should have an opportunity of pleading his case before the courts established by the Constitution. Therefore I suggest that the Minister should accept, on this section, the principle which he accepted in the other House on Section 4.
When this Bill was introduced in the Dáil, the certificate under Section 4 provided that it should be conclusive evidence, but the Minister wisely yielded to the arguments put forward against making such a certificate conclusive and we now see that that certificate is only prima facie evidence. I cannot see any reason why he should not, so to speak, oblige the Seanad as he obliged the Dáil by agreeing that the certificate under Section 2 should be merely prima facie evidence. This is a matter upon which I feel strongly. I feel that it is, to a certain extent, more or less an abuse of the process of court to make the judge merely a rubber stamp who will make a decree of ejectment on a certificate over which he has no control, a certificate which cannot be disputed and which is drawn up in an office and which is not accessible to the judge or to the public or even to the defendant. In addition, I would say that that is an intrusion of the Executive into the proper functions of the judiciary under the Constitution.
I notice that on my copy of the Bill when I first read it I put in the margin "amend ‘conclusive' to ‘ prima facie’”. I have not moved that amendment because its substance has been moved by Senator Sweetman. I would remind the Minister, who I know is a student of such matters, that I think it is Pliny who says that if a man acts as a judge in a case in which he is interested, even though his decision is fair, it is not right because he should never have entered upon the consideration of such a case. Similarly, even if the certificate of the Land Commission which the Minister seeks to make conclusive is fair in every case it is not right that that method should be adopted because people will be found who are difficult to convince that Government Departments, in their anxiety to get on with a special job which is allotted to them, are not inclined to ride rough shod over the particular interests of the individual.
I agree with Senator Ryan that this is a very undesirable principle and even if I were sure it would never work an injustice I should still consider it undesirable because it is so important not merely that justice should be done but that it should appear to be done. I would ask the Minister to accept this amendment making such certificate merely prima facie evidence and allowing it to be contested. After all why should any person in this country be turned out of his home on the certificate of a person in a Government office without a chance of appealing to the law courts to protect him.
I am aware that that is, perhaps, an undue simplification of the position but, substantially, if you make this certificate conclusive evidence you are, as Senator Ryan has pointed out, doing very much the same thing as allowing the Land Commission to issue a warrant and send down the messenger to take possession of the place. I would ask the Minister to accept the amendment. It is not going to do him very much harm to accept it and it will preserve a principle which I think is of importance.
I would join in that appeal to the Minister to accept the amendment of, I think, Senator Johnston who has suggested that the certificate should be only prima facie evidence. The Bill provides that a direction may be given by the Land Commission and, as Senator Ryan has pointed out, we have no rules which provide how that direction is to be given. Must it be signed by the Secretary of the Land Commission or must it be signed by the three commissioners of the Land Commission? May it be given by a local inspector and is it to be given verbally or in writing? All these are very big questions when you are going to deprive a man of what has been originally allotted to him. He may not of course be conducting himself properly, and if he is not, he will not be able to contradict the certificate in court if it is prima facie, but if all those other questions are open, they are not open according to this section because it says that a certificate is to be absolute evidence that the direction was given. The direction itself need not appear in court evidently. All you have to produce is the certificate and that will be evidence that the direction was given and again evidence that the direction was not complied with. It is very strong wording and, as Senator Ryan says, it does away with the judicial powers of court. It is making the Land Commission a judge in its own case and, whether it is fair or unfair, it does not appear to be right.
I would suggest very strongly to the Minister that he should accept the amendment proposed by Senator Sweetman or else—and which I think would be better—the amendment proposed by Senator Johnston and use the words prima facie evidence instead of the words absolute evidence.
Perhaps I was not as clear as I should have been because I do not appear to have made my amendment clear. Paragraph 5 deals with a certificate for three different things: first, a certificate that a direction has been given; second, a certificate that the direction has not been revoked; and third, a certificate that the allottee has not complied with the direction. So far as I can see, the difference between my amendment and Senator Johnston's is this: I am prepared to admit that the certificate of the Land Commission should be accepted conclusively as evidence that they did give the direction, because that appears to be a matter of office routine about which it does not matter. I am prepared to admit also that the certificate of the Land Commission that they had not revoked that direction would be conclusive, but I am not prepared to admit that the certificate should be conclusive that the allottee had failed to carry out the direction. Senator Johnston in his amendment did not admit any of the three things. I am prepared to give the Land Commission the first two, as they are really only administrative matters, but on the third one—which is met by the consequential amendment No. 6, which must fall if No. 4 is not accepted—the words change from "prima facie” to “conclusive,” because that is the manner in which I drafted the amendment.
I would like to make it clear that I agree with Senator Sweetman. That is why I was pressing his amendment in preference to Senator Johnston's.
My reason for not pressing my amendment was that I realise, like Senator Sweetman, that there is no objection to allowing the Land Commission to certify conclusively that they did issue a certificate under common seal and did not revoke it, but there is serious legal objection to allowing the same legal weight to be given to a certificate to the effect that the allottee had failed to carry out the direction. That is a matter which ought to be thrashed out by one of the courts provided by the Constitution.
When, in my experience, I went first to the Land Commission, the thing that struck me most forcibly was their tolerance and patience with the annuitants. On their record, nobody could be so fully trusted as the Land Commission to deal reasonably with cases of this sort. I admit the principle that the judicial authority must be preserved, but in this case we are dealing with facts as well as with law. When Senator Sweetman says: "Let us have a definition of ‘residence'", I ask whether there is actually in law a definition of "residence" that covers the needs of the Land Commission in regard to the matter that can be related to the facts of these particular cases. Senator Kingsmill Moore says—in over-simplification of the case, as he says—that when the man is being turned out of his house, that is not punitive legislation but corrective legislation. We do not want to turn a man out; we want to bring him in. He has never gone in, he has not lived there.
The Minister is completely begging the whole question by saying he has never gone in.
Strangely enough, I have often been accused of begging the question, even by such a clever Senator as Senator Douglas. It is not my habit: I am rather forthright. In regard to the direction which is worrying Senator Ryan, there is a rule in regard to direction. The direction is given in writing, sealed by the Land Commission and served personally. I have not heard from any of the legal Senators if there is a definition in law that suits the facts of the case. I remember quoting in the Dáil the case of an American, a millionaire many times over, who lived, moved and had his being in New York; and yet when he died it was found that his official residence was in New Hampshire, where there were no death duties.
If the Minister will permit me for a second, may I say I read of the Minister making that statement in the other House and I also recollect reading something about the case to which the Minister referred. I have a very clear recollection that the millionaire lived in New York but had his domicile in New Hampshire and, if the Minister inquires from his legal advisers, he will be assured that, so far as death duties are concerned, it is domicile and not residence that counts. They are two very different things. We are dealing with residence here and not with domicile.
I will admit I am no match for the Senator in regard to the legal point, but I know America and he does not, and many words are used in a different sense there from what they are in Ireland. The whole point about it was that the millionaire's heirs got away with the "swag," whether it was domicile or residence. Here we are with the problem of people who have had houses built for them at public expense. They have never lived in the houses as we know what living is, the day to day living a farmer must carry on if he is to work his holding in the ordinary sense. The compliance with legal requirements there is a bed in the house and a chair, a curtain on the window, but after repeated visits by various inspectors, who never find a hen or a mouse stirring in the house, we have found out that the law courts hold that the man has been in residence. Under a section of a previous Act—I think it was the 1939 Act—we were informed that, if a man is given a direction to live in the house and goes to live in it any time within three months, he may immediately vacate it and it is still held to be residence. That is not common sense.
But it is law.
Senator Ryan offers me a few suggestions. One is a very mild one, that having obliged the House in one matter I might now oblige the House in another matter. It is not a question of obliging the Seanad or the Dáil, the Land Commission or the Minister, but a question of doing what is right and getting a procedure adopted that will be workable. He also said the Minister took over the question of legislation and considered himself a judge of facts. I do not know that this makes any difference to legislation. I would take Senator Counihan to be as sound a judge of facts in regard to land as any judge in the country.
He will be made a land commissioner before long.
Here is a grave evil. It is a limited one and this Bill is directed only to that limited evil inside a limited area. We have no possibility of securing the evidence acceptable to a law court that will compel these people to go into the houses. An inspector visits the house and he finds nobody living in it on that day. He goes back to it at a different hour on another day and still finds nobody there. Another inspector goes there on a third visit and still finds nobody there. Yet this particular individual who has never been in the house to anybody's knowledge, about whom his neighbour will write reams of anonymous letters to the Land Commission although he will never come forward to give evidence—civic spirit is so strong in this country—is able to get away with it. The Land Commission have knowledge of the fact that these people do not live in the houses, but when we take them to the court the judge decides that they have been resident within the meaning of the Act —whatever Act it is. Would the Seanad in common sense accept the fact that the Land Commission deals, with endless tolerance and generosity, with all these people, that we are not concerned with punishing them, that we merely want them to live in the house, to get in and not to stay out?
Remember that each allottee for whom a house has been built and to whom land has been given is getting a free gift from the nation and has a very definite commitment imposed upon him because of that gift. This Bill, if it becomes law, will not be of general application. I might call it emergency legislation framed to deal with a particular evil which cannot be remedied otherwise. I think that I have to ask Senator Ryan and his colleagues to step down from their high legal eminence, face facts and deal with the situation as we find it.
I can well understand the difficulties of the Land Commission but, in my opinion, a most vicious principle has been enunciated by the Minister, and it is this: "We, the Land Commission, have gone to court and we have failed. We have not got satisfaction from the courts because the judges have held that a certain man was in residence when we ourselves were satisfied that he was not, so from now on we are taking the law into our own hands. We are going to oust the courts from all dealings with this matter and we are going to give our own certificate. We are going to settle this matter to our own satisfaction." If this is pushed to its logical conclusion, we shall soon have legislation under which, when a man is charged with being drunk in charge of a motor car, a certificate by the police officer that the man was drunk shall be conclusive evidence in the court. I do not consider that mere non-residence in a house—the Bill does not say non-residence—or not continuous residence in a house is a crime. Therefore no matter what class of person an allottee may be—and all allottees are not wrong ones—I think that he should have an opportunity of putting his case before the court. If the Land Commission in the past failed in court, because the court held that the man was in residence, then that matter can be very easily remedied by legislation which the court must follow in every case. Therefore it is, in my opinion, a confession of failure on the part of the Government and of the Legislature that neither is able to frame a definition of "residence" to guide the courts and to enable justice to be done between the Land Commission and the allottees.
I do not think the Minister quite realises the plan he is making. What he said in effect in simple words was this: "I have failed to draft a definition to meet what I want and, because I have been incapable of doing that, I am going to give power to my officers to make their own definition to suit each individual case." Because of incapacity to frame a definition in adequate words, an official or civil servant is to be enabled to make his definition ad hoc for each particular case. That is the very vice which it is the business of the Legislature and the courts to avoid. If the Minister desires to give a special definition for the purposes of this section to the word “residence”, let him try to do so. Let him say that residence shall mean such continuous occupation as shall permit of the effective personal working of the holding or parcel by the purchaser or words to that effect. The courts can then deal with the facts which are presented to them and see if they fall within that definition. But let him not say that because the courts have had to consider the word “residence” in different circumstances—one case, for instance, where residence is imposed by a clause of a will, another case where it may be a condition of a deed, another in connection with income-tax or death duties, and in the different cases the word “residence” has been given different meanings, because you have to take into consideration the context and the ambit of the type of law you are dealing with—that, therefore, the courts can give no meaning to the word. It is perfectly true that there is no single definition of the word “residence” and it would be ridiculous if there were. There should be no difficulty, if the Minister knows the type of residence he has in mind, in stating plainly in the Act what the definition of the word shall be. If he cannot do that, or if he finds difficulty in doing it, that is the very reason why it should not be left to an official to give a conclusive certificate to decide a matter which the Minister cannot even define for this House.
Would there be any point in suggesting that the Minister might give further consideration to this matter if the amendments were withdrawn? As the Minister can appreciate, the House is in general agreement that there is a necessity for the Minister having certain specific powers, but we are disturbed, and I think we are justified in being disturbed, about certain aspects of the matter.
We are in agreement that something has to be done but there are wrong ways of doing the right thing, and the House is not satisfied as to the way in which it is proposed that this power should be exercised by the Land Commission. If the House is prepared to give such power as will enable the Minister to do what he wants to have done, I think it should not be beyond the capacity of the draftsman to get a formula for what the Minister wants. Perhaps the Minister would like to look into this matter before the Report Stage and the amendments could then be withdrawn.
Might I suggest that the effective consideration that should guide the court in deciding whether a person is resident or not, is not so much whether he is personally there every day in the week and every week in the year, as whether he is keeping poultry, pigs and above all milch cows on the premises because if he is regularly doing that, he must make effective provision for the upkeep of these birds and animals. I think the court might take that as the proper criterion of residence in the place.
The Minister has objected to the decision given on the question of residence and he has provided against such decision because he provides in Section 2, sub-section (b) (i) that the Land Commission can give a direction that the tenant shall reside continuously to the satisfaction of the Land Commission on the premises. That gets over the danger that a person may merely go into the house and come out again, believing that to be a sufficient compliance with the direction. The residence must be continuous to the satisfaction of the Land Commission. That is a definition that any court will have to follow. I think there is no reason to fear that a court will decide contrary to that definition.
Maybe Senator Ryan is right, that there is Government failure in the matter. When I was confronted with this difficulty in the Dáil I asked the representatives of all Parties there to come together and discuss the difficulty with me. They did so and we failed to find a satisfactory solution. Is there a definition of residence, a non-ambiguous definition of residence, legally? I do not know that there is. Again I put this to the Seanad. We have people who get houses built for them at the public expense. They do not reside in them. At the most, they make a pretence of residence. We do not want to evict them from their farms, but we do want to compel them to live in their houses and carry out their commitments in accordance with the agreements made between them and the Land Commission. The Land Commission is, after all, entirely independent of the Minister in most matters, a thing which I very much regret now and again. It may be thought that it is safer to have it so, since I am the politician that I am. The Land Commission is a judicial body in the sense that it is the body that is to decide who is the person that will get land from among innumerable applicants. Surely, it is the plain and common duty of the Land Commission to see that the applicant selected to get land will fulfil the commitments that he has entered into. If it does not do that, it is of no use at all and ought to be abolished. If it puts a man on land it surely ought not to suffer from the incapacity of being able to remove him if he does not carry out his duty. Nobody is more anxious than I am that judicial authority should be preserved. I went within an ace of getting a few bullets in my head on one occasion when I was put before a court. Therefore, I have a tremendous respect for the ordinary courts. But here is a very grave evil, limited in extent, but still very great. The House knows that the Land Commission is tolerant and generous. It wants authority and power to see that those people on whom, in its capacity as agent, it has conferred a great benefit, will fulfil the commitments which they have entered into. Is there any defence in the world for people who will not live in the houses that have been built for them, or any answer to the argument that they should not be touched? There is none.
No one is trying to make it.
If there is no way of handling the situation other than the way we are proposing, should not the Seanad agree to it? This is a definite and a grave evil, limited in extent, that is doing great economic harm to the country. There is no intention of utilising this as an instrument for punishment. It is merely a corrective for evil. We want those people to live in their houses. We do not want them to leave them, or to leave the land. We want them to utilise the land for their own benefit and for the benefit of the country. It was for that purpose they were put on the land. I think that we are getting too meticulous in regard to the legal and judicial aspect of this. Is the Seanad going to refuse to face up to this evil and rectify it through the only method that I know of by which it can be rectified?
With the permission of the House, I propose to withdraw amendments Nos. 4 and 6 in order that I may resubmit them on Report, with the addition of a definition of residence to meet the point of view put forward by the Minister.
Amendments Nos. 4 and 6, by leave, withdrawn.
Amendment No. 5 not moved.
Question proposed: "That Section 2 stand part of the Bill."
On the section, the Minister I think gave us on the Second Stage the number of houses that will be affected by this section. As well as I recollect, he said 211 houses had not been occupied up to date. Immediately this Bill is passed, the Land Commission will give the allottee a new direction and an opportunity of starting off with a clean slate. Can we have a complete assurance on that?
Yes.
Question put and agreed to.
PROPOSED NEW SECTION.
I move amendment No. 7:—
Before Section 3 to insert a new section as follows:—
3. As soon as may be after every 30th June and 31st December the Land Commission shall lay on the Table of both Houses of the Oireachtas a return showing the name of every allottee in whom a parcel of land has been vested during the six months ending on such date, and there shall be included in such return the name and area of the townland so vested, the country in which it is situate, the date on which such holding was originally allotted (to the person in whom it has been vested or his predecessor in title, as the case may be), and a note of the special reason, if any, why such land was then vested.
I have very little to say on this amendment. I want to allay any feeling that there may be about priority of vesting. I think that the best way of doing that is to put the facts before the two Houses in the same way as proposed leases under the State Lands Act of 1924 are put before the Oireachtas. I want to stress now, as I did on the Second Reading of the Bill—I think the Minister will agree with me on this without any reservation—that the whole effect of this measure, when it becomes an Act, will be to make vesting for the individual allottee an even more important matter than it was in the past since he will enjoy greater freedom from the control of the Land Commission.
I think it is desirable that in view of that fact, without saying anything more, that there should be some public method of knowing who has been vested. I am not tied to a statement laid before both Houses of the Oireachtas, but I thought that was the simplest method of publicity to suggest. I think the Minister might prefer that it would be part of the Statutory Land Commission Report issued as an appendix with the report. I would be perfectly happy about it.
Senator Baxter suggests that it might be published in the Official Gazette. I think that would be an unnecessary expense, quite frankly. It had occurred to me, but I did not think it was necessary, so long as there was some public method of knowing who had been vested, and that people would appreciate as a whole what allottees were still under the control of the Land Commission, and what allottees were no longer under its control, having had their holdings vested in them. I have tried so far as I can in making the case for this amendment, to remember what the Minister said on several occasions, namely that he thought when he was coming to this House, that he was coming to a non-political body.
This is the new section?
This is amendment No. 7.
It is a practice with the Land Commission to try as far as possible to work along definite lines of priority in the matter of vesting. Vesting has, well, rather been delayed over the past few years, because of the number of inspectors who had gone to work for other Departments. Vesting is, in some cases, a very simple matter. In other cases, it involves many questions of rights-of-way, boundaries, water, and so on, which makes it a long and tedious process.
The Land Commission would, I know, be delighted to speed up the question of vesting to the highest possible level. Carrying on unvested holdings from year to year merely creates added work for the Land Commission, and within that body we have a special revesting section, with an augmented staff, and, as Senators know, quite a great deal of progress has been made in the past year, as compared with other years.
It is a matter that absorbs a great deal of the staff on administrative work, and to do what Senator Sweetman proposes would impose a much heavier burden on the staff which would not be justifiable by results.
Now and again it is essential that cases must be given special priority for certain reasons. I will admit that now and again errors have resulted from this. But wherever errors have occurred there has been no lack of publicity. Everybody in the country, wherever the error has been made, has advertised the iniquities of the Land Commission to all and sundry, night and day, and if these errors had been in any way numerous, instead of being, well, altogether very few, we would have a continuous clamour from all sides of the country. We have not.
There are just a few cases here and there and so much noise about them, even in a non-political body like this. There have been accusations of political corruption against the Minister, the Government and his Party. One case came to my notice quite recently during the past year where a man who had got an allotment was very anxious to sell, but he was not vested, and he made application through Deputies of three different Parties in the Dáil.
He must have been a Corkman.
That destroyed him—he had no chance then.
Mind you, the Minister is very anxious to oblige a Deputy from any Party in the Dáil, and if there are any Parties in the Seanad——
There is no obligement when you have to go round all of them.
But in this case the holder was not vested, and a very strong protest came in from one of the Deputies, not of the Fianna Fáil Party, that two adjoining allottees who had never applied to be vested, had been vested and he had not been vested. The reason was that the Land Commission got information that he proposed to sell the holding immediately he was vested. I do not think there is really any need for this amendment. The Land Commission has worked entirely objectively—altogether honestly. We could not stand to do the things that some people suggested we try to do. It would add a tremendous amount of work to the Land Commission if this section was accepted.
First of all, I am afraid that in spite of my effort to be non-political, the Minister has made the discussion a political one. However, I do not agree at all that the amount of work involved in the preparation of the list suggested in this amendment would be in any shape tedious. There is not going to be very much work in it. I can see practically none. In the ordinary routine administration of the Land Commission, there must be a Land Commission file showing that the holdings have been vested. It is done by fiat, and it only means that the fiats have to be put on the file and listed for the printer every six months. There is not going to be any serious objection to it, I think, on the grounds of additional work.
So far as the Second Reading was concerned, the Minister in his reply suggested, I think, that I have accused him of graft in respect of the cases I mentioned in Kildare. I was most particular in the speech I made not to accuse the Minister personally, but I cannot accept the Minister's assurance just given that the Land Commission has never yielded to wrong impulses in regard to vesting.
Wrong influences—not impulses.
I was putting it in a particular way.
You are too gentle with them altogether.
I am absolutely satisfied that in the particular cases of the two holdings in Kildare to which I referred on the last reading, a decision was taken that was not in line with the policy of the Land Commission as a whole, or indeed with the policy of the Minister. If I had any assurance that steps would be taken by the Minister to see that there could not be such a repetition I would feel very much easier in my mind in withdrawing this amendment.
It is common gossip around Kildare that these particular two transactions were got through in the Land Commission in a manner that does not reflect any credit on it as a body and I feel that if there was the knowledge before an official that the act he was doing would have to be made public in a particular way then there would be less temptation on that official to yield to the assurances, to yield to the influences—I do not mean influence in any objectionable way—to yield to representations that were being made to him that a particular holding should be vested when the rest of the estate was not being vested. The cases in which I am interested are cases in which one holding was taken out of a whole estate and vested. I think the Minister will agree there is a 90 per cent. presumption that where a man asks for vesting he is asking for it because he wants to dispose of his holding after having it vested.
I cannot see the Minister's objection to accepting this amendment. I confess he is a very clever tactician and his method of dealing with the Seanad is really that of a master. All through this debate he has shown very considerable ability and psychological understanding.
In this matter I agree with Senator Sweetman and I do not think that the Minister generally has made a good case. I do not accept at all that the reason why this amendment is not being accepted is because of the extra labour it would mean in his Department. He would have to give us more proof than he has advanced in order to convince us that that is the fact. The amendment says:—
"As soon as may be after every 30th June and 31st December the Land Commission shall lay on the Table of both Houses of the Oireachtas a return showing the name of every allottee in whom a parcel of land has been vested during the six months ending on such date, and there shall be included in such return the name and area of the townland so vested, the county in which it is situate, the date on which such holding was originally allotted (to the person in whom it has been vested or his predecessor in title as the case may be), and a note of the special reason, if any, why such land was then vested."
I take it, and I accept absolutely the Minister's point of view, that the policy of the Land Commission and his policy is to administer the law, as it is, fairly and judicially.
He, we take it, has no desire whatever to take out one individual from amongst a number and put him in a privileged position which we have evidence has taken place in the past to the advantage of particular allottees. The Minister has said that where anything like that happened mistakes are made. But were they mistakes? Not at all. They are deliberate acts of policy and the purpose is quite clear —it is to confer on certain individuals a definite privilege and a definite monetary advantage that has not been enjoyed by their neighbours.
If this addition to the section is accepted, the Minister and his Department will at least be in the position of being able to say: "Whatever I might do about that before the recent Land Act passed, that is finished. If I am going to vest your holding and leave your neighbours aside and not put them in the same position, you will know and everyone will know about it. It is going to be publicised and the reason why this advantage is being given to you as against your neighbours will have to be stated." I think that the amendment would be protection for the Land Commission and it will put the commission in a position of satisfying themselves as to the reason and purpose behind any vesting of one particular individual as against other people on the same estate. Then the mistakes which the Minister says have been made will not be made because I take it that as soon as either House of the Oireachtas discerns that a particular individual has been vested and others have not, we will be looking to see what is the purpose of the vesting. If we see a sale and it is contrary to the reason given in the particular statement issued by the Minister then the Land Commission will stand charged with having accepted reasons which have not turned out to be true. In this Bill you are making provision to evict men from holdings which they have held for a period. If on the other hand, men are put in the position of collaring a considerable sum of money because the State has allowed them to do so then the State should be in a position to come in and lay claim to these very considerable assets which it has made possible for these men to get possession of. I believe the Minister will be protecting himself and the Department by accepting this amendment. I have one incident in my mind where a particular individual was vested and had an opportunity to sell. It was not a mistake but I do not want to go into it at length.
I am opposed to this amendment for several reasons. If it asked for a list to be prepared of the holdings that were purchased and not vested and that reasons would be given why they were not vested I would be rather inclined to agree, but I cannot accept an amendment that asked that reasons for vesting of holdings should be given. After all, the Local Registration of Title Act, 1891, provides that holdings shall be vested in a purchaser and the only reason that may be given is that it was done subject to that Act of 1891. There is no other reason necessary. There might be some reason for asking for a list of those who were not vested and to give the reasons why they were not.
Would the Senator permit me to say that if he reads the amendment he will see that it asks for a note of the special reason, if any, why such land was then vested.
A special reason is a very big thing to consider. Supposing the Land Commission said there was no special reason, would that be an answer to that question?
Yes, a perfect answer.
That does not get us any further.
It does. It answers the whole question.
Then if the Senator would be satisfied with that answer, it would be very easy to satisfy him. If he suggests that somebody in the Land Commission vested a holding for an improper reason, surely if that man is capable of such a thing he is not going to be foolish enough to say: "I did it because I was asked by some person for a wrong reason and I fulfilled the request that he made to me". Surely that would not do in an official document. There is, furthermore, the point that these statistics will be prepared for six months and laid on the Table of the House. I wonder if we could get any information as to the number of Senators who ever read a document which is laid on the Table of the House.
The Senator should not judge every member by his own experience.
That is a clever answer but, in fact, who does read a document laid on the Table of the House? Is it not pure nonsense? I see provisions added to Bills providing that Orders made under those Bills are to be laid on the Table of the House. They are so laid and nobody ever reads one of them. They pile up unnecessarily. If anybody wants a copy of an Order, they can get it from the proper Department by applying for it. There are printed copies available and they can be obtained by anybody who wants to read them. That is the reason why all Orders are not laid on the Table. If they were laid, nobody would ever read them.
I suggest that the Senator should ascertain the truth of that statement, because the Ceann Comhairle is aware, from his office, that it is not correct. I asked for certain Orders and they were not available. I think that the Senator will find another Senator rather close to him who did the same thing.
There is a Senator close to me who asks for Orders and reads them but he will tell you why. He says that there is very good Irish in them and that is why he reads them.
There are other Senators who read Orders for the same reason. That is, at least, two members of the Seanad who read those Orders.
Senator Sweetman asks for Orders and two other Senators read them for the Irish. We could provide the Orders for those three Senators in a much easier way than is here proposed and it would save a great deal of printing, as well as time and energy. With regard to the suggestions made, that holdings were vested for an improper reason, two cases have been mentioned and we are told that knowledge of them is common property. Of course, we hear reports every other day against public Departments but we generally find on investigation that the reports are wrong. I am sure my friend made some inquiries with regard to those cases. Reasons may have been given—perhaps they were not true reasons—which were believed by the Department. My experience of the Land Commission—and I have a great deal of experience of it—is that it is impossible to move it except in a defined direction. They adopt a certain course and they will not make exceptions.
I never say, when writing on behalf of a man to the Land Commission, what his politics are. I do not think that it would have the smallest effect if I did. In any event, I do not think that it would be right to mention his politics, and I write on behalf of any man who approaches me, no matter what his politics are. I think that this amendment is unnecessary and I object to it.
The attitude taken by the Minister would, if I had heard this case argued for the first time, have made me exceedingly suspicious of Government motives. I should think that the Minister would be only too glad to allay suspicion as to action on the part of himself or his advisers. This is an amendment which one would think he would welcome, because he would want people to see that he and his advisers were perfectly fair in their methods. He says that adoption of the amendment would mean too much work. I am sorry to ask the question, but does the Minister know what goes on in his Department when he makes such a statement? The work involved, to anybody with any knowledge of administration, would, on the face of it, seem to be very slight. It makes me uneasy when the Minister makes such a statement in the House. It is almost an insult to our intelligence, because anybody who knows anything about such work is aware that the amount of labour involved would be insignificant. I hope the Minister will accept this amendment. If he does not, I hope that it will be pressed.
I support the amendment, because I believe that nothing allays suspicion or counters unfair criticism so well as a certain amount of publicity. It is not necessary that such a list as is proposed should be published in the newspapers. The very existence of such a list, which could be referred to, would go a long way towards reducing the volume of unfair criticism of which the Minister complained. I have often agreed with Senator O'Dea and more often disagreed with him. But I never heard a speech from him with which I disagreed more fundamentally than the speech he delivered to-day. He seems to think that there is no value whatever in laying documents on the Table, which means making them available to members of either House.
He holds that opinion because a large number of documents are laid on the Table and members of the House are lazy and do not do their duty. I do not think that his general charge against the House is true. It may be true of some members. I have been a member of this House almost as long as anybody here. If the Clerk were here, he would bear me out when I say that, over a long period, I asked to see every Order issued. I always read the list of papers laid on the Table and I always went down and got copies of those of which I had knowledge.
And other Senators did likewise.
I am sure they did. Even if other members did not do so, I think that the value of this practice is very great. Apart from the question whether this amendment is of great value or not, the provision that certain Orders by the Government should be laid on the Table and should be annullable by specific motion is an essential part of democratic government. If it were proposed to depart from it on the ground that sufficient use is not made of it, I should be a very strong dissentient. I agree with Senator O'Dea that as much use as might be made of it is, probably, not made of it. It would not be in order to go into that question now. Some of us have advocated a small committee of the House to which every Order would be submitted. That committee would consider it and report, if necessary, on anything that seemed to be unusual. However, that is a matter of detail. In this case, I think that, with very little expense and comparatively little trouble, the list suggested could usefully be laid on the Table. In principle, I think that an issue of very great value is involved.
I think Senator Sweetman is fond of euphemisms if he talks about the Land Commission impulses. The Land Commission is not impulsive. With all respect to the experts on administration, I would roughly assume that we would have 6,000 vestings at least in the next year. This amendment proposes that:—
"As soon as may be after every 30th June and 31st December the Land Commission shall lay on the Table of both Houses of the Oireachtas a return showing the name of every allottee in whom a parcel of land has been vested during the six months ending on such date, and there shall be included in such return the name and area of the townland so vested, the county in which it is situate, the date on which such holding was originally allotted (to the person in whom it has been vested or his predecessor in title, as the case may be), and a note of the special reason, if any, why such land was then vested."
I would suggest that that means a lot of work and I would suggest also that it would be entirely valueless as ammunition for either Senators or Deputies, since if I were a civil servant preparing such a list I would make my case so watertight that no one could ever use it against me.
I welcome this debate as being a much more effective weapon of democracy than any printed list laid on the Table of the House. I am not a Minister by accident. I would not accept complacently the say-so of any Department or Minister. It is the duty of Senators and Deputies to criticise, even very virulently, the proposals for administration and legislation. That is their duty. I think the work of the country is better fulfilled in that way than by the placing of a dead White Paper on the Table of the Dáil. That is my own view. It would really mean a lot of work and the only use it would be would be to supply ammunition to a book-worm type of legislator who would not be able to make full use of it.
That is the most ingenious argument we have ever had in the Seanad. The Minister should stop at that point. It is marvellous.
I really think this type of debate serves the purpose better than the printing of a White Paper. As far as I am concerned, I have not interfered personally in the question of vesting. I doubt very definitely and sincerely that there is corruption within the administrative section of the Land Commission. That should be a sufficient guarantee that things will not happen that the Seanad and the Dáil desire not to happen and which can best be prevented by a debate of this sort either in the Dáil or here.
I think there is something in what the Minister has just said. I wish to withdraw the amendment, as I hope the little disturbance I have been able to create in regard to these two cases in Kildare will ensure that the same operation will not happen again. If I have achieved anything towards that, the purpose of my amendment was designed to cover will have been met in some way.
It was perfectly clear from Senator O'Dea's speech that he had not read one of the official publications available to him, even though I gave him the references on the last occasion. He would have found in Volume 97, No. 8 of the Dáil Reports for last July, that when the Minister was questioned on the particular case, he was most careful then, as he has been to-day, not to say that he stood over the action that had been taken.
Amendment, by leave, withdrawn.
Sections 3 and 4 agreed to.
SECTION 5.
I formally move amendment No. 8 standing in Senator Quirke's name:—
In sub-section (1), page 3, line 32, after the word "enters" to insert the words "or is deemed to enter".
Amendment agreed to.
Amendment No. 9 seems to be met by the Minister's amendment No. 10, but I want to be a little bit clear about it. It was only this morning I had the opportunity of studying the actual wording of the Minister's amendment, as I did not get my post yesterday. I want to be quite clear that the wording does exactly cover what I wish. I am mentioning it now, so that I need not move amendment No. 9 but may introduce an amendment on the Report Stage to the Minister's amendment No. 10, if that is necessary.
It is a legal affair with which I am not conversant, but for the purposes of the record, perhaps the Senator would move the amendment, so that I may read the explanation I have here regarding it.
I move amendment No. 9:—
In sub-section (2), page 3, to delete the words "and deaths which occurred before the passing of this Act" in lines 41 and 42, and also the words "and deaths occurring" in line 44.
Section 5 of the Bill was framed to meet legal doubts which have arisen as to whether the view hitherto generally accepted and acted upon by the Land Commission and all others concerned in regard to the mode of devolution on death of parcels allotted by the Land Commission was in law correct. The section as drafted declares that the position for the future will be what everybody has heretofore considered it to be: it also declares that such view was right in the past. This retrospective provision is most essential, inasmuch as a great number of parcels of land have been dealt with by personal representatives of deceased allottees, and in very many cases these parcels have been vested in personal representatives by the Land Commission, and it is obvious that the validity of these dealings and vestings must be put beyond doubt or question. For this reason, Senator Sweetman's amendment, which would remove the retrospective effect of the section, cannot be accepted.
The section was intended primarily to meet these difficulties in the case of allotments; but, as was pointed out in the course of the debate on the Second Stage in the Seanad, the section should also cover those cases where fee farm grantees make successful application under Section 44 of the Land Act, 1931, to be admitted to the benefits of the Land Code. These applicants' interest in their lands would appear to devolve as realty even after a Section 44 application is granted and the parcels vested in the commission and up to and until the parcels are revested in the applicants; and thenceforward devolve as personalty or chattels real. It is agreed that it would make for consistency and would be more apt that these Section 44 parcels should devolve as personalty once the benefits of the Land Acts are extended to them. In fact, these parcels have in many instances been treated as passing on death to the applicants' personal representatives. It is thought that the section as it stands might not, however, be held to extend to these Section 44 fee farm grantees, for it applies "where a person enters into an agreement", etc., that is, the case of allottees—they sign an actual document, an agreement or an undertaking. But the Section 44 applicants do not actually sign any document—they are by law deemed to have signed or entered into an agreement; it is only a notional transaction. It is to clarify the position and to ensure that these fee farm grant cases are comprehended in the scope of the section that the words "or is deemed to enter" are proposed to be inserted in sub-section (1) of Section 5.
Both in the Dáil and Seanad, references were made by various speakers to the retrospective effect given to Section 5 by sub-section (2) thereof and apprehensions were voiced lest, in the endeavour to confirm and settle the many titles which are based on the practice and the view of the law heretofore acted upon, vested rights might, in some instances, be adversely affected and disturbed. The points so raised have been gone into carefully and considered. It is felt that there is no danger that the section, in so far as it relates to what may be called the primary category of land to which it is applicable, that is, allotments, would in any way operate to affect past transactions. The persons claiming these unvested parcels on the death of the allottees must of necessity come to the Land Commission and show their title to have the parcels ultimately vested in them. And the experience of the Land Commission is that all these titles are shown on the basis and the assumption that the parcels pass on death as if they were tenancy interests. It is the personal representatives and next-of-kin of the deceased allottees who deal with them.
However, the express inclusion, within the compass of this section, of parcels held under fee farm grants coming within Section 44 of the Act of 1931, makes it necessary to secure that the retrospective effect of this section will not damnify anyone whose title to any such parcel is based on the land devolving in the past as real estate. Not all persons regarded and dealt with these fee farm grant lands as so passing on death as real estate once the Section 44 application was granted by the Land Commission. Views were divergent on the point. The new sub-section now proposed to be inserted at the end of Section 5 is designed to protect rights and interests acquired and conferred in the past where the parcels concerned were dealt with as real estate for the purposes of devolution on death.
I shall withdraw the amendment. I entirely agree that so far as the position in respect of allottees, pure and simple, is concerned, the people must go to the Land Commission and, therefore, the Land Commission were in a position to know whether anybody was damnified or not. It was Section 44 of the 1931 Act cases that were worrying me. In point of fact, I had knowledge of a case where a man had bought a farm for £1,790 from the heirs-at-law of a deceased owner. That purchase was carried out strictly in accordance with the law and in accordance with the ideas in the judgment of Mr. Justice Overend in the Desmond deceased case. I felt that there was a danger that if the section was passed in its original form, the purchaser would have no title even after he had parted with all that money and that he could be put out of the holding.
It was not absolutely certain whether my view was right or whether the views of the Minister's officers were right. I think the Minister will agree with me that it was a borderline case. The Minister's intention now I think is to put it beyond doubt in either case. That is eminently satisfactory. As I have already stated, I am withdrawing the amendment but as I did not get an opportunity of looking at the exact wording of the Minister's statement perhaps I might be allowed to refer to it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 10:—
At the end of the section to insert a new sub-section as follows:—
(3) Where, before the passing of this Act, an interest in a parcel of untenanted land to which this section applies was treated by the persons claiming to be interested therein as realty for the purposes of devolution on death, then, nothing in sub-section (1) or sub-section (2) of this section shall affect any right acquired or intended to be conferred by reason or in consequence of the interest having been so treated.
I do not know whether this is worded sufficiently definitely. The word "treated" is one I do not quite understand.
Is "treated" a convivial or a legal word?
It is neither a convivial nor a legal word as used here. "Treated by the persons claiming to be interested therein as realty"—in other words if the eldest son goes into possession his younger brothers and sisters go out of possession. He thinks that he is the owner and that it descends to him as heir at law. The other members of the family have not asserted their rights. Perhaps they are too young to assert their rights.
Perhaps the word "treated" is not very apt. I think the intention is that nothing should be disturbed that had been dealt with. I would suggest that the word "treated" should be replaced by the words "dealt with".
"Regarded and dealt with" is my suggestion.
If Senator O'Dea is satisfied I shall consider it.
I think you might find something more definite than "treated".
The word "treated" is a rather unusual word in legislation. It is a rather vague type of word. The word is not bona fide, if I might so use the term. At all events, I think the words “dealt with” would be more appropriate and I would make that suggestion to the Minister.
That is even too indefinite.
I shall reconsider it.
There is a possibility that the words "dealt with" might be construed as meaning a conveyance or an assignment. If the eldest son remained on in the holding and worked in it, it would be very wrong to upset a situation in which he had been working for some years. There is the possibility that if you change the word "treated" to the words "dealt with", it might be taken to mean only a case of sale. It is obviously a technical matter that should be looked into.
"Treated" by the persons claiming to be interested therein as realty, is the same as "dealt with". The person who claims the realty has treated it or dealt with it. You must take into account the persons who were entitled to it as next of kin who may have some very valid reasons for not asserting their rights. It is too indefinite as it stands.
Amendment put and agreed to.
Question proposed: "That Section 5 as amended stand part of the Bill."
Before the section is passed, may I point out that Senator Quirke already moved an amendment to insert after the word "enters" in line 32 the words "or is deemed to enter". There are certain other portions of that section which, I think, should be amended, following on the acceptance of amendment No. 8. The section, as amended, will read:—
"Where a person enters or is deemed to enter into an agreement or an undertaking to purchase from the Land Commission,"
and so on. I think that is intended to cover Section 44 of the Land Act of 1831. In the same section we have the words "at the date on which the said agreement or undertaking was entered into". I think it would be necessary to amend that by saying: "was deemed to have been entered into". In sub-section (2) of the section it says: "shall apply with respect to agreements and undertakings to purchase parcels of untenanted land". It will be necessary there also to insert the words "deemed to have been made". Further, in the same sub-section we find the words, "applies with respect to any such agreements or undertakings made". There, also, it will be necessary to insert the words "deemed to have been made". These are matters which might be considered before the Report Stage is taken.
Section 5, as amended, put and agreed to.
SECTION 6.
I move amendment No. 11:—
In sub-section (2), to add at the end of the sub-section the following words: "except as against a bona fide purchaser for value who had no notice that any additional land had been provided by way of enlargement.
I and other Senators referred to this matter on the Second Reading of the Bill. If the Minister is accepting my amendment, I do not want to waste the time of the House in speaking on it. Otherwise, I shall have to explain it.
I am afraid the Senator will have to explain it.
The purpose of this amendment is quite clear in my mind, but I find it a little difficult to explain it in words. The Local Registration of Title Act of 1891 provided that a land certificate was to be conclusive evidence of the title of the persons thereon registered as the owner. That conclusive evidence was to be subject, however, under Section 47 of that Act to certain burdens even though they did not appear on the document of evidence. It was also to be subject to what is visualised here, in one shape, under Section 38 of the same Act. I understand that the practice of the Land Commission has been to enter a caution or an inhibition in the Land Registry so as to make it clear that there would be something on the document of title to show that the Land Commission had enlarged the holding. I understand that it will be the practice of the Land Commission in future to ensure that a note does go on the document of title drawing thereon the purchaser's attention to the fact that there has been such an enlargement. The Minister and I are in entire agreement that where there has been an enlargement for the purpose of making a holding—one that is too small—of an economic size, that it should not again be split. The Land Commission, I understand, are going to send to the Land Registry a notification that an enlargement has been given. I suggest that when they send that notification to the Land Registry it will be thereupon entered by the Land Registry on the document of title, and will be perfectly satisfactory, but it is possible, even for the Land Commission, to make a mistake. If the Land Commission omitted, in any particular case, to send that notification to the Land Registry—if it were overlooked and it could happen—and that a purchaser bought under the section as it stands and without the words which I am proposing to insert, then that purchaser would have no title even though he were not guilty of any negligent act.
If, on the other hand, the notification is sent to the Land Registry, then it appears to me that the Land Commission are not in any way damnified by my amendment, because under it, once the Land Registry had been notified, the purchaser would have had notice, and consequently, my exception would not apply. This matter is a little bit technical and rather hard to explain in simple language, but it appears to me that it should be statutory: that is to say, that, if a notification intended was overlooked, the person who through no fault of his own had worked on the assumption that there was no enlargement would be entitled to be protected. If the Minister was not previously aware of my point of view in respect of this rather technical matter, I would be quite prepared to withdraw the amendment so as to enable him to be able to consider this matter before the Report Stage is taken.
With regard to the intentions of the Land Commission on this matter, may I reassure the Senator that his proposal to amend Section 6 is prompted, as he has explained, by his desire to protect bona fide purchasers of registered holdings from its restrictions on dealings if the folio does not disclose that the provisions of the section apply. The Senator may not, perhaps, be aware that, where a parcel is allotted for consolidation with a registered holding, it has always been the practice of the Land Commission to lodge a caution or inhibition in the Land Registry. In actual fact, therefore, his amendment would have effect only during the short period between the date of allotment and the date upon which a note appears on the folio. The number of instances of the transfer of registered holdings to bona fide purchasers during such period would certainly not justify the amendment of the Section. Besides, there might be an equal, if not greater number of cases in which the allottee of a parcel might sell his registered holding immediately he was given his parcel knowing that if he did so before a note appeared on the folio the restrictions imposed by the section would not apply.
It has always been the practice of the Land Commission—in their own interests—to lodge a caution or inhibition when a parcel is allotted for consolidation with registered lands. In the case of parcels which will be allotted after the Bill becomes law, the Land Commission will supply to the Land Registry, as soon as possible after allotment, the necessary information to enable the registrar to enter on the folio, in accordance with the provisions of Section 38 of the Registration of Title Act, 1891, a statutory note that the restrictions as to dealings under the section apply.
Once that is done I am perfectly happy.
It is. In the case of parcels which have been or will be allotted for consolidation with an unvested holding it has been arranged that should either be vested before the other a note as to the restrictions under Section 6 will appear on the vesting Order and this will enable the Land Registry to place a statutory note on the folio as soon as it is opened.
These arrangements should ensure that in any case in which the restrictions as to dealings involve a registered holding the period which will elapse before a note calling attention to the fact appears on the folio will be very short indeed. Legislation to cover the very rare case of sale during the short period between allotment of an enlargement and the noting of the folio would not be justified. That is the Land Commission view.
Of course, I take a very different view from that. The Land Commission attitude appears to me, if I am not misjudging them, that if there is demonstratively one case of hardship an amendment is not justified. I cannot take that view. It appears to me that even if there was a danger of one case of injustice, and that injustice can be obviated by an amendment in this House, it is our duty to make that amendment. I will stand on that submission to the extent of testing the opinion of the House on it, because I cannot possibly accept that attitude. However, I am not going to stand on it at the moment, because I want to give the Minister a chance of looking into the point between now and the Report Stage of the Bill. I do that because I do not think that the Minister appreciates the full implication of what he has explained to us. When the Land Commission gives notice, such notice being understood, and that notice appears on the folio, I am perfectly satisfied that the purchaser should have notice of it as well.
The explanation given by the Minister does not cover my submission that a mistake may be made, and the Minister will agree with me that a mistake is possible, even in the Land Commission. His statement does not cover that the mistakes may occur. Mistakes might easily happen, and matters may be held up in the Land Commission for an undue time. But, I am quite at one with the Minister in feeling that if he deems it necessary to ensure that on the day a man gets an enlargement of his holding, before the following day that the Land Commission will give notice to the Land Registry, he will not split up that holding. I am quite prepared to meet the Minister if he feels there is a real danger, but I must stand on the point that if there is a likelihood of one single case of injustice which we can obviate by putting in an amendment to the Bill, which is going only to make some slight administrative difficulty in the Land Commission, we should do it. As a matter of statutory obligation, we should say clearly what we intend to do. I think we have a serious duty to perform, and after making my viewpoint clear I would ask leave to withdraw the amendment and to say that I intend to bring it forward on the Report Stage.
I would like the Minister to look into the matter before the Report Stage. Two different documents have been mentioned here. One is the Land Registry certificate and the other the folio. Very often, the folio is not issued to the purchaser and there is no record on the document of title. The folio is what appears in the Local Registry of Title Office, copies of which can be got.
Not only should a note be put on the folio but the certificate should be recalled, and the note recorded on it as well as on the folio. The reason I mention that is this: in some towns far away from local registration offices they have no opportunity of the investigation of title which people who live in towns in which offices are situated possess. It is very necessary that the record should be on the certificate as well as on the folio. I suggest that to the Minister.
Is the amendment being withdrawn?
Before it is withdrawn, I would like to say a few words. I may not have heard the Minister correctly. If I heard him correctly and the Minister understood what he has read aright, he would not have taken his stand on the case put forward by his Department. The Department's case seems to be that if the chance of injustice is not very large it does not justify this House in making amendments to the Bill. Now if the Minister had said that if the chance of injustice is not very large, and the amendments as drafted would be liable to do harm, and that, accordingly, the House will have to make a choice as to the lesser of two evils—I could understand that. But, if it is admitted that there is a possibility of error, or of delay, if this Bill stands as drafted, and no reason is given why the amendments introduced by Senator Sweetman could do harm, I cannot understand the attitude apparently taken up by the Department. They admit there may be injustices, but they see no reason for making amendments. They may think that it is an affront to the prestige of the Department to alter the drafting. I may have misunderstood the Minister, or I may have misunderstood what he read from his brief.
He certainly did not read that.
I am making the point because if that was contained by implication in what he read, I feel quite certain that he would like to contradict that point of view. My ears may have played me false, and, perhaps, the Minister would like to reread clearly that passage and explain it to the House.
I dislike raising my voice too loudly in this august atmosphere, but Senator Kingsmill Moore has partly covered what I would have said in my reply to Senator Sweetman. My view is that if an injustice can be remedied, without evil repercussions elsewhere, there is no reason why we should not meet it.
Amendment, by leave, withdrawn.
Sections 6, 7 and 8, inclusive, agreed to.
Question proposed: "That Section 9 stand part of the Bill."
On this section I want to make another plea. I made the plea once before and I want to make another now, that something should be done to have the Land Acts consolidated. They are becoming more and more difficult to construe. They are becoming, as the Minister said in his opening remarks, more and more complex, and, really, I think consolidation of our land code should be a task which should be undertaken as soon as possible in regard to this new code we are considering. Not only from the point of view of people who have to deal with the Acts, but also from the point of view of the student, there is nothing whatever in the way of a satisfactory explanation of our recent Land Acts available for the student and it would be very desirable to have them consolidated for the benefit of everybody. I urge that on the Minister, and on the Government, that something should be done in the matter I am thinking about.
I should add, and I made the suggestion before to this Minister—at least I think it was to the Minister—that there are certain Departments where consolidation would be exceptionally easy. The Land Commission is one of them, because the Land Commission happen to have available a senior official whose business it was to work out the Land Code for the commission.
That official has now retired from the Land Commission. Because of his age he is not considered by the State capable of working on a whole-time basis, but he would be a person eminently suitable for the State to employ to deal with this necessary consolidation of the Land Acts. Therefore, the objection so often put forward, that consolidation is a very technical matter, that there is nobody available to consolidate and that it would take the time and the attention of the Department away from more pressing problems, does not apply to the work which I suggest should be done by the Minister's Department. He could get somebody outside the Department to do the work, so that there would not be any pressure on the staff.
Sub-section (2) of Section 9 of this Bill states:—
"This Act shall be construed as one with the Land Purchase Acts and may be cited with those Acts."
This statement has been repeated parrot-like in almost every Land Act since 1923, without amendment. In the Interpretation Act, 1937, the expression "Land Clauses Acts" has been defined as meaning certain Acts therein specified but I have been unable to find in the Interpretation Act any definition of "Land Purchase Acts". In the 1933 Act, the same expression as in this Bill appears. It also appears in the Act of 1936 and in the Act of 1939. The phrase "Land Purchase Acts" must have some meaning. I suggest that this matter should be looked into and that the words "Land Purchase Acts" should be defined in some Act.
There was agreement that the House would adjourn at 6 o'clock to facilitate the Minister. It is now almost 6.15 and I suggest that, if necessary, the debate should stand over.
Section 9 put and agreed to.
Schedule and Title agreed to.
Bill reported with amendments.
Report Stage to be taken not earlier than 15th May.
The Seanad adjourned at 6.15 p.m. until 3 p.m. on Wednesday, 8th May.