Vol. 31 No. 20
Amendments Nos. 1, 2 and 3 hang together. In our discussions on the last day, we were agreed that it was only after adequate definition of the word "residence" that it would be possible to have the certificate of the Land Commission limited in the way suggested in the then amendment. With the permission of the House, therefore, I propose to deal with the three amendments together.
Agreed.
We discussed this matter at some length on the last occasion and I do not propose to weary the House by going over the same ground. The dangerous provision is paragraph (5) of clause (b) of Section 2. The certificate of the Land Commission, under that paragraph, is to be conclusive, in the first place, of the fact that a direction was given to the allottee to reside on the holding. With that, I am in entire agreement. That is a purely administrative act and I see no reason to query it. In the second place, the clause provides that the certificate of the Land Commission shall be conclusive that the direction given to the allottee has not been revoked. Again, that is an entirely administrative matter and one with which it is entirely unnecessary to deal. In the third place, it is provided that the certificate of the Land Commission shall be absolutely conclusive and binding on the allottee and on the courts that the allottee had not carried out the direction to reside on the holding. It is having regard to that provision that these amendments are framed, so as to make it incumbent on the Land Commission, and possible for the allottee, to discuss in court whether or not these are the facts. As the section is phrased at the moment, the Land Commission are not only, so to speak, prosecuting counsel but they are also judge and jury. I suggest that that is a bad principle of law. So long as you have that principle, no matter how just the decision may be—the House will recollect that, on the last occasion, I admitted freely that, in my experience, the Land Commission had not been unjust in dealing with these matters—you will not have that facade of justice which is as absolutely essential as justice itself if you are to have an ordered community and a self-satisfied community, so ordered. The effect of the amendments is that the Land Commission would go to the court and hand in their certificate in evidence stating that the allottee had not complied with the direction given to reside on the holding. The court would then call on the allottee and the allottee would have an opportunity of showing, if he could, that he had complied with the Land Commission's direction. If that were done, the Land Commission would then have an opportunity of putting forward further evidence to show that the evidence offered by the allottee was not, in fact, true but was misconceived. They could show that Land Commission inspectors had gone to the holding on such and such a date and such and such a date and that there had been no sign of life about the house or the farmyard, as there would be if they were being used. In order that the court may determine the matter on a reasonable basis, it is, of course, necessary to define the word "reside". In amendment No. 3, I have suggested a definition, which is, I think, sufficiently stringent and restrictive to make certain that it meets the very proper idea in the mind of the Land Commission that people for whom houses have been built should occupy those houses. If the House would be good enough to look at the wording of amendment 3, it will see that "to reside" is there defined as meaning "to use, sleep in and occupy the dwelling-house concerned as the normal and sole home of the allottee". It appears to me that that is about as stringent and restrictive as a definition could be and therefore it seems that the Land Commission could scarcely say that a definition so phrased was so wide as to enable allottees to escape the net. I have no doubt that, if the Minister is opposing this amendment—and he has not said so yet—he will do so on the ground that the Land Commission inspectors go through the holding from time to time on various occasions before they throw a man out on the side of the road and that it is not possible for them to ascertain anything more than that there was nobody living there on a particular day or days.
A very valuable suggestion in regard to that was made to me by another member of the House outside, that it should be possible for the Land Commission to make arrangements with the Department of Justice so that the local Gárdaí would be available to give evidence as to whether the man was using the place as his normal and sole home. It would not be very much trouble for the Gárda on patrol round that area to drop in from time to time and find out whether the allottee was really living there. Even without that, in a country area everybody knows the position and the Guards know very quickly if Paddy Murphy is really residing on the holding or living with his mother four miles away and coming to the holding only on a day when somebody gives him the wink that the inspector has been seen in the neighbourhood. All the difficulty could be overcome by reasonable co-operation between the Land Commission and the Department of Justice.
I suggest seriously that the House should not accept the view that it is impossible to frame legislation which will deal with the genuine case merely because of the difficulty of proof. We are completely united in making certain that people who have been given houses, erected for them at the public expense, are made give them up or live in them and utilise them properly. There is a risk that we might put a man out of his house and home on to the side of the road without a full and complete investigation by an independent authority; and that risk, however small people may think it may be, is one that should not be taken when there is another avenue open, as I have indicated in these three amendments.
I hope the Minister will see his way to accept these amendments. I am sure he is not going to make the case that they are put down to obstruct the Land Commission in discharging the obligations which this Bill will put upon them. Senator Sweetman had no such intention, nor has any member of the House any desire to restrict the activities of the Land Commission when they get these powers. However, it is of fundamental importance, even from the point of view of the Land Commission, to assure the public that, in their administration, they have exhausted all possibilities in order to establish the facts of the case. It would be very unpleasant experience indeed to find that they had carried out the equivalent of dispossessing a man of a home which had been given to him and had left the impression in the minds of people that they may have acted on information which was not completely and absolutely correct and sound in every particular.
Doubtless, there will be cases where the facts may not be too clear and nothing is better, from the point of view of the prestige of the Land Commission itself, than to challenge any of these alleged defaulters to go to the court. That is the desirable course, though it may take a little more time. That would be a challenge to the man and to those who would defend him, to his friends or to people who might go even to the extreme of becoming law breakers in his defence, to go into court and prove that the facts were not as the Land Commission held they were. From that point of view, this is the sort of amendment which the Minister should accept. It would make sure that he would never be open to attack from right or left for having done something he could not stand over before any judicial authority. In cases which must be, for a number of reasons, difficult and highly sensitive, it is very important that every possibility be exhausted, in order that the Land Commission may establish that its decisions have been equitable. I hope the Minister will see it from that point of view and accept the amendments.
Since the Committee Stage, I have had an opportunity of re-reading a rather important report which was made in a neighbouring country and which the Minister will recognise when I call it the Donoghmore Report. It was made to the British House of Parliament on Delegated Legislation and the delegation of judicial and semi-judicial functions to Ministers and Ministerial Departments. One of the points on which the Commission was unanimous was that, where a Department was given power to decide judicially or semi-judicially a point in which they were interested, only a bad Department could decide the question fairly. A cynical Minister or a cynical Department would be able to approach the question with complete dispassionateness, but a Department really keen on carrying out its own job, and a Minister imbued with the spirit of his Department, would inevitably approach the question from a point of view which would be objectively biased, though from his own attitude it would be subjectively fair.
I think that position would apply to any decisions given by the Land Commission in a matter such as this. I have no doubt whatsoever that the officials and inspectors, in making decisions, would not for one moment be guilty of any conscious unfairness. Their very keenness and anxiety to get the thing done as well as possible must inevitably create a slightly one-sided and biased outlook. The better the man, the more keen he is to get the job done, the more he will suffer from that unconscious bias. The House must remember that, if there is a bias of which you are conscious, you can guard against it, that there is very little danger in the case of people who have a conscious bias, as they know of it; but if you have an unconscious bias it is one against which you cannot guard, for the very reason that it is unconscious. Lawyers have laid down, and statesmen have recognised, that no one should be put in the position of attempting to decide a thing judicially when all his desires and interests are on one side and when his outlook is inevitably coloured.
Now, that is the position in which people who give certificates of this nature are inevitably put. I have no objection to a prima facie certificate, but I have every objection to it being a conclusive one, because if it is to be conclusive it means that the person who gives it will have to divorce himself from the interests of his office and attempt to look at it in a way which is impossible for a really keen administrator. I strongly support the amendment. Although the certificate may be prima facie and would be accepted in nine cases out of ten, I still think there should be an opportunity of going to the courts, both in the interests of the Department itself and in the interests of the people against whom such a certificate may be given.
I have no doubt of the good intentions of Senator Sweetman. I am reminded by Senator Baxter's support of Senator Sweetman of the old saying: "The Lord preserve us from our friends." I had no suspicions of Senator Sweetman's attitude, but when I heard that Senator Baxter is prepared to give him a character I began to get slightly suspicious, especially when Senator Sweetman used the old phrase that it is better that the three amendments should hang together rather than hang separately, I suppose. There is something in that unconscious bias. It is a good thing to know it is there. Most of us do not recognise, of course, that we suffer from it, the members of the Seanad particularly. I am not a cynical person, nor do I think the Land Commission is a cynical Department. As I have often pointed out to the Seanad, it suffers itself from a particular defect. The Seanad is perfectionist, but we in the Land Commission are not. We do not ever look for, or hope for, perfection in the allottees, it is so difficult to get suitable allottees even allowing for their various faults, the Land Commission will be more than slow in dispossessing any allottee.
There is such a clamour for land, there are so many tricks, shall we say for want of a better word, utilised by these applicants to secure tenancies, that when the Land Commission does secure an allottee that in any way reasonably meets his commitments, it grasps him in its arms and retains him in spite of the many and various faults that he may have.
This Bill is directed entirely against people for whom the Seanad have no more use than I have, people who have got land as a gift from the State, a gift to which very definite commitments were attached. In spite of every effort on the part of the Department authorised to deal with these people, they have failed to meet in any way their commitments.
Senator Sweetman said that he did not wish to bore the Seanad by going over all the arguments that have been used in the debate on this Bill. If I were to speak at length on it, I would be merely repeating what I have already said. The Land Commission does not regard itself as a punitive body or instrument. Its real purpose is to implement State benevolence. It is because you must take men as you find them and try to make them what you would wish, that we have to take men who are not by any means perfect for our purpose. We try to do the best we can with them under all conditions. I said before that this Bill is directed at a very definite evil. We have here an evil which is confined within a limited circle, and the purpose of the Bill is to deal with people who are doing harm to the fabric of this State. The body that is authorised to deal with them is the one that has the greatest amount of experience, and, if I may say so, it has achieved and retained the highest character in its dealings with those people. That body is the Land Commission.
Now, in an ordinary case of contract, it is only right that both parties to the contract shall have full access to the courts. This particular case is entirely different. Here are people for whom houses have been built at the public expense who sometimes refuse to live in them—
That is begging the question.
—and who, at the best of times, make the pretence of living in the houses. The Land Commission inspectors, as I have said, visit these houses at different periods of the day. Different inspectors visit them, and their neighbours write in anonymous letters about them. They never will, of course come forward as good citizens and give direct evidence. In regard to some things a knowledge of a departure from right is quite clear, but yet it is difficult to prove that in court. In view of that we might, of course, take the attitude that we had no evidence that would be accepted in court against those people, and, therefore, we might say that they must go free. That would seem to be the attitude of the Seanad. In general, it is correct. But here are people—again I must repeat myself— who are beneficiaries of the State with certain commitments imposed on them because of the gifts they have received at the expense of the nation. Time and again inspectors of the Department, who are concerned in dealing with them, visit their houses. They find that there is not a mouse stirring in any of the houses—no animal or bird of any kind.
Why cannot that be told to the court? I am sorry for interrupting the Minister who did not interrupt me.
We have, of course, certain cases in which decisions have been made by the courts with which the legal men who are Senators are quite familiar Very often, much as they know about law, they do not know as much about the inner meaning of the decisions as we, unfortunately, do in the Land Commission.
I think the Minister would require to explain the meaning of that to the House.
It is a reflection on the judiciary.
I did not catch what the Senator said.
I understood the Minister to say that certain cases have been decided in court and the court did not know the real reason of the decision as well as the Minister did.
No, he did not.
No, he did not say that. "The real effect of the decision," is what he said.
The inner meaning, is what he said.
I beg your pardon. That makes it different.
I, as a layman, find it very difficult to argue the finer points of law with distinguished lawyers and Senators here.
You are too modest.
What I want to convey is that decisions in court are made by the judge on the bare facts he has before him. I suggest—and I do not think it needs any explanation for Senator Baxter—that the Land Commission has a much deeper knowledge of the facts associated with all these cases than ever comes out in court. They know a good many of the repercussions that cannot be brought forward in evidence. Under the 1923 Act the allottee is supposed to work his holding to the satisfaction of the Land Commission and not to the satisfaction of anybody else but the Land Commission. It is only reasonable to argue that a man for whom a house has been built on land, who will not live on the land and who will try to deceive in every way the Land Commission by making a pretence of living on it—that such a man cannot meet his commitments under the 1923 Act of working his holding to the satisfaction of the Land Commission. As a beneficent body, the Land Commission is not inclined to punish these people in any way and this Bill is not directed towards punishment but directed towards reform.
We ask the Seanad to give us the power to deal with this, that or the other man who is an allottee and who is not residing in his house in accordance with his agreement and to the satisfaction of the Land Commission. The form of words given us by Senator Sweetman is perfect. It is a perfect description of residence, but a form of words will not meet the case, unfortunately.
The Minister's objection in the other House was that there could not be a perfect form of words.
A perfect form of words that will give us authority and power to deal with these people who are recalcitrant—that is my argument. I think whether they hang separately or together, they must hang.
I feel towards the Minister exactly as he feels towards Senator Sweetman. I have confidence in his sincerity in regard to this matter. I am even prepared to accept his word that when he says he felt a certain nervousness in facing the lawyers that, as he pointed out before, there is no cynicism in his nature. I still think, however, that without accusing him of cynicism he largely evaded the principles that are behind the amendments. He said that the people whom this Bill was intended to deal with were people for whom the Seanad had no more sympathy than he had. That is agreed. His answer is that because there is a difficulty you are to give to a Department of State the final decision. He argues that these people will be treated almost as if they were in swaddling clothes and that they are placed in the hands of the most reasonable Department that ever existed. He seems to think that has something to do with the principle underlying the amendment.
I suggest that for the purpose of considering the merits of this amendment the Land Commission have all the infallibility they can have, and the question of their merits or how they will deal with the matter will not arise. I am strongly of the opinion, however, that it is not wise nor is it a good principle to introduce, that the final decision in a matter of this kind should be left to a Department of State. I know you may say there are other cases. I know there are similar cases and that there is a tendency in that direction, but on every occasion when that principle arose I have opposed it. If I did not it is because I overlooked it. I am strongly of the opinion in this case that the three amendments proposed by Senator Sweetman would provide the Department with as good an assurance as they could possibly get in law—that where they had a case they would have very little difficulty in proving it.
The Minister says that a judge could only decide on the facts before him. I am puzzled by that statement because it does not seem to me that the Land Commission can decide otherwise than on the facts before them, and I do not believe that they would decide otherwise. What else could they have but the facts before them unless they had whispers or rumours, which I do not think they will deal with. It is a question of whether the Land Commission or the judge in the last instance can decide the facts before them. Under these amendments I think the Land Commission will be placed in a much stronger position. If they decide that the allottee had vacated his holding and if he appealed against that then unless I am wrong—and I am not a lawyer—it seems that the allottee would have to satisfy the judge that he resided within the meaning of the definition in this amendment, that is that he lives and sleeps in and occupies the dwelling-house concerned as his normal and sole home and abode.
I cannot conceive of a case where the allottee could prove that to the satisfaction of the judge and where the Land Commission would have any grievance. Frankly, I do not believe there would ever be a case taken by the Land Commission in which the allottee could prove that because the Land Commission would jolly well know and be in a position to find out if that were so. Here is a principle introduced in a Bill which I think is fundamental and one which the Seanad should not acquiese in.
I wonder would the Minister compromise on these amendments. With regard to the first amendment which suggests leaving out certain words, it would not be so important to leave out these words if the second amendment were accepted and make the Order of the Land Commis- prima facie evidence.
But the first amendment gives only consequential words, if the second amendment is accepted.
It says that it shall be evidence not alone that the direction was given to the purchaser but that the direction has not been revoked and that the purchaser has failed to comply with the direction. Could we leave out the words "the purchaser has failed to comply with the direction." I do not think there would be any harm in having it as evidence that the purchaser has failed to comply with the direction because I presume that the certificate will be given a very short time before proceedings are instituted. It would be given where the purchaser has failed to reside in the dwelling-house.
I know that the Land Commission will treat each allottee with very great consideration. That will make it all the more difficult for them to decide. They will have reports from their own inspectors. It is very difficult for a public authority to turn down the reports of its own inspectors. If they do not accept an inspector's recommendations, their action will look as if it were a vote of lack of confidence in the inspector. It will be very hard for the Land Commission to do that. The certificate is to be conclusive and the allottee can offer no defence in court when the case comes into court afterwards. The words are used here, "shall recover possession". I suppose that refers to recovery of possession by process of law, so that the case will have to come into court in any event if the allottee refuses to give up possession. Why should there not be an opportunity, then, to offer evidence? It is for the allottee to give the evidence. If the certificate is prima facie evidence, it is evidence for all purposes unless evidence is given to contradict it and show that it is wrong. The onus will be on the allottee and it will be a very strong onus. He would not only have to give evidence himself but he would have to bring some of his neighbours to prove that he was actually residing in the place and that the certificate should never have been issued. It is difficult for inspectors to decide these matters. They will get anonymous letters from people anxious, perhaps, to get the holding of the allottee. Their letters may contain untrue statements. When the inspector calls, the allottee may be working in a bog a long distance off and he may find no sign of life about the place. Taking that state of affairs in conjunction with the letters he had received, the inspector would be justified in reporting that the man was not residing on the holding.
I do not know what the procedure after that would be. I suppose the matter would go to the commissioners. The commissioners would be in the awkward position that they would not like to turn down their own inspectors. There will, therefore, be a certain amount of compulsion on them to make the order. At the same time they will be slow to make it. It would be easier to make if they knew that it would be only prima facie and not conclusive evidence. I think that the second amendment should be accepted and that the other two amendments should be withdrawn.
I cannot see why the Minister would not accept the words "prima facie” instead of the word “conclusive” because, by doing so, he would be giving away nothing, so long as the words remain in Section 2 (a) (1) “to the satisfaction of the Land Commission”. The purchaser must reside continuously to their satisfaction in the dwelling-house. Senator O'Dea has stated that a person against whom proceedings are instituted may call in his neighbours to prove that he is residing in the house.
No. What I said was that, if the amendment were accepted and if the certificate were only prima facie evidence, then the allottee would have an opportunity of calling evidence to prove that he was residing in the house.
Assuming that the amendment is accepted, the neighbours can prove nothing because of the phrase "to the satisfaction of the Land Commission". Senator Sweetman's definition is worthless because the Land Commission must be satisfied that the person resides in the dwelling-house. The Land Commission are the final judges of fact under the Bill. Before bringing in this amendment, making the certificate only prima facie evidence, the words “to the satisfaction of the Land Commission” should have been deleted. It appears to me that it is a matter of tweedle-dum and tweedledee whether the words “prima facie” or the word “conclusive” go into the Bill because, if a certificate is given that the purchaser failed to comply with the direction, that direction, even if merely prima facie evidence, cannot be rebutted by anybody so long as the Land Commission are not satisfied that the purchaser resided continuously in the house.
Therefore, in my opinion, the Minister would be giving away nothing by agreeing to the insertion of the words "prima facie” and Senator Sweetman would be gaining nothing by their insertion. The only advantage is that there is a strong dislike in legislatures to a Department of State being the final judge of fact, apart altogether from any legislative powers given to it. But, in this Bill, we are giving the Land Commission power to determine facts, because the Bill provides that the person must reside continuously in the dwelling-house to the satisfaction of the Land Commission. If he resided there even to the satisfaction of the judge, that would not be sufficient.
It is very difficult to define "residence" because the word "residence" has a special meaning in reference to the Act in which it appears. We have the word "residence" appearing in the Income Tax and other Acts. The question of residence is a personal one. For example, it was held in England by a judge that a man who lived in a boat for twenty years resided in England, although the boat shifted about from time to time. A person may have a residence even though he lives in a hotel and has no home, so to speak. In a number of Acts, the word "residence" is qualified by other words. A person is said to be "actually resident", "ordinarily resident" and "temporarily resident". The word has many shades of meaning but, in the end, the question is one of fact for the tribunal before which the question comes for decision. Under the Income Tax Acts, the question of residence is one of fact for the Special Commissioners. Under this Bill, residence is to be not only impliedly but expressly "to the satisfaction of the Land Commission". In the operation of this Bill when it becomes an Act, it will, in my opinion, be immaterial whether the words "prima facie” or the word “conclusive” appear in the Act so long as the words “to the satisfaction of the Land Commission” remain. Therefore, I suggest that the Minister should accept the amendment. He will be giving nothing away so long as the words “to the satisfaction of the Land Commission” remain. Even though the certificate may be prima facie evidence that the purchaser has failed to obey the direction, it will be, for all practical purposes, conclusive, because no person—not even the judge—can say that a peson has resided in a house to the satisfaction of the Land Commission if the Land Commission itself says that the person did not reside there to its satisfaction.
I am inclined to think that the point made by Senator Ryan—that there should be a further consequential amendment deleting the words "to their satisfaction"—is probably correct. The only reason I say "probably" is because, if his argument on these lines is correct, it is perfectly clear to me that paragraph (5) in clause (b) is meaningless. If paragraph (5) is necessary then Senator Ryan's point falls completely to the ground. If I may say it against myself, it is just as much Senator Ryan's point as a lawyer's point. There is a principle at issue here clearly set forth in the amendment for the House to be able to understand and, of course, there is the underlying argument that, in a Legislative Assembly, when you decide a principle you make minor verbal alterations following this principle. That is not the way the Act must be construed after it is passed and signed and when it comes up in the courts for construction. In the Legislative Assembly it must be on the lines on which the Assembly carries out its business. So far as these amendments are concerned I agree that they must, as the Minister said, "stand or hang together". If these three amendments are passed it is a very simple matter to make a consequential verbal amendment in the other House when the Bill goes back there. The real question at issue is a question of principle and the Minister and I are agreed on that point. We are not tying ourselves to any verbal difference. I must say I was very surprised when the Minister was prepared to accept the actual wording of the definition of "residence", and as he has accepted this the only issue in principle is whether the allottee is going to get a chance of proving in court that the inspector of the Land Commission was incorrect. It is entirely begging the question for the Minister to say that this section is only for the purposes of dealing with recalcitrant allottees. If the allottee is recalcitrant in the manner in which the Minister suggests, the court will give the Land Commission their decree. But if, as pointed out by Senator O'Dea, the man is away on the bog when the inspector of the Land Commission is visiting the holding, he should get an opportunity of so stating in court and of leaving it to the judge to determine whether he or the Land Commission is correct. I cannot accept the Minister's view that this is a provision that is going to be operated benevolently.
My view about such a principle is that we should never in legislation consider the personnel of the particular Department who are going to operate a measure. I may fairly say that so far as this provision is concerned I am perfectly satisfied that the Minister himself and the personnel of the Land Commission are going to operate it satisfactorily and that they are not going to operate it unfairly. But that is not the basis upon which legislation should be enacted. The basis upon which legislation should be enacted is the restrictive basis that any Minister or any Department can be wicked if they got the chance. I am not suggesting anything personal against the Minister or the Land Commission in making this statement. But this is the basis on which legislation should be enacted, otherwise you are going to have the absolute power of the State overshadowing the rights of the individual. That is the principle I am seeking to have established and I ask the House to support it.
As the numbers are equal, I give my casting vote in favour of the amendment.
Question accordingly declared carried.
May I take it that the decision on that matter governs amendments 1 and 3?
No, I was against No. 1 and No. 3, but in favour of No. 2.
I move amendment No. 4:—
In page 3, Section 4, to add to the section a new sub-section as follows: (2) Before certifying under the preceding sub-section that the purchaser has not so worked the holding or parcel 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.
The object of the amendment is set out on its face. I do not know how long some of the allottees may be in possession of some of these holdings. It may be so long ago that they have forgotten, and so may the Land Commission. I believe that a number of these people may find themselves on the roadside due to this: that they were given holdings originally without any of the capital or equipment necessary to make these holdings a really workable proposition. It is very hard to condemn a man to-day for weakness and faults that are really due to that original decision, because it was a fault to give a holding to a man who had neither the capital nor the equipment necessary to make the holding a success. Anyone who has any experience of farming, large or small, can be quite satisfied that if a man does not get a proper start he would want to be a miracle worker to make a success of the undertaking. I know some people can actually work miracles; others are expected to do it but failed—and that failure may come about because of circumstances being altogether too strong for the occupier and because of the fact that at the time the Land Commission transferred the land to these people they should have known that without these men getting a proper start they could not be expected to achieve success. I think if that is not taken into account before a final decision is taken by the Land Commission, the Commission is doing less than justice.
What you have got to do with people like that instead of putting them on the roadside is to put them in a position to work the holding. It may be that some of them were very much older and less competent than others and that somebody else will have to be put in possession. When these other people come along if they get the capital and equipment necessary they may be able to make a success where their predecessors failed, but I am convinced that the Land Commission will be doing less than justice if they put out on the road men who failed because they never got a decent start. I say that that failure lay as much at the door of the Land Commission who put these people on the land originally as it did at the door of the occupier, of the man who got the holding. The natural desire is to get possession of land in this country or any other country. Men want to get possession of property, whatever use they will make of it. I am not going to go into considerations which may have been weighed in arriving at decisions in relation to these people who were given holdings originally, but I think it is a lack of consideration and certainly not equitable to dispossess a man who was not able to start properly and whom you did not treat in the way others may be treated now when they get possession of a new holding. These people are doing better than many who originally got possession of the holdings. If these considerations were taken into account by the Land Commission I do not know how many cases would be influenced by them, and I hope the Minister will see his way to accept the amendment.
It seems to me that there is no necessity for such an amendment as this. The section of the Bill is quite clear. In practice the Land Commission take into account, not alone the matters which Senator Baxter wishes to provide in his amendment but they have taken into account every surrounding circumstance in regard to each case so as to avoid any injustice. The Land Commission has held its hand from doing many things which it would be reasonable, right and just to do rather than adversely affect any allottee.
Here again men get land and houses from the Land Commission as a gift of the people of the country. There is attached to this gift certain commitments and every allottee who gets a holding from the Land Commission knows the conditions under which he gets it. He gets no stock. He gets the house and land and he is supposed to have sufficient capital and equipment to make it a going concern. If he has not that he is getting the land under false pretences. As Senator Baxter says, a great number of people in this country will do anything they can to get possession of land. They will make every sort of statement possible to support an argument in favour of giving them land. The Land Commission must make every effort it can to secure suitable applicants and in the great majority of cases the Land Commission succeeds. There are bound to be failures in every activity of life. I think that the Land Commission has succeeded and I want to insist again and again that this Bill is not a punitive measure. It is a measure of reform. There is no intention of taking punitive action against any man who is now holding land, but if he does not reform in the future then this Bill is the weapon for dealing with him.
Certain powers would be taken from or not given to the Land Commission by the acceptance of these and other amendments and I think Senators are not quite logical in depriving or denying the Land Commission of these powers. If the principle embodied in the Bill was of general application I could understand the anxiety of Senators not to give the desired powers, but it is directed to an evil which is in a circumscribed area. Senator Sweetman spoke some time ago on the question of restricting any type of personnel by legislation, but we have already given the Land Commission absolute powers to give the land. The land is not given by the courts. There is no court decision, and grievances are often expressed, as every Senator knows by people who do not get land—by applicants for land.
Their grievances might be quite legitimate. Many of them are, in fact, quite reasonable. But you have given complete authority to the Land Commission to select applicants for land arbitrarily; there is no question of a court. This amendment does nothing but emphasise the action the Land Commission will take. There is no need for such an amendment. It would be very wrong to give expression to this view in legislation because it would give an opportunity to many people to defeat the Land Commission in their attempt to get the land properly worked.
I find it difficult to see how this amendment would operate in practice. What is at the back of Senator Baxter's mind is quite clear—that it is very unfair to blame allottees for not having done a job when they were not given the means to do that job. I must confess that I agree with Senator Baxter that that would be unfair. The objection is, quite frankly, an antecedent one. The objection, as I see it, is that the Land Commission should not have alloted land to people who had no hope of working it. It was unfortunate that that was done. If he has done nothing else, Senator Baxter has drawn attention in this amendment to that fact and it is to be hoped that, as a result, there will not be a repetition of this action of giving land to people who cannot possibly work it.
The Minister says that what I am drawing attention to in this amendment will be present to the minds of the Land Commission in coming to a decision. I am sure that the Minister is no less kind-hearted than I am. He has a job of work to do. A limited number of people are not using certain lands which they got, as he puts it, as a gift from the State, in the way in which it was intended they should use them. I am not disputing the facts nor am I disputing the wisdom of the action being taken by the Land Commission in certain cases. Here, you have a number of people who have grown older since they got possession of this land. Probably, they went into possession with high hopes. Presumably, they were men of spirit with not much means. They were given possession of holdings and, from the word "go". they were not equipped to work the holdings. There is no question that there was an error of judgment on the part of the Land Commission. I agree that people will go to very great lengths to get possession of land from the Land Commission but the Minister cannot have it both ways.
It is not easy to hoodwink the Land Commission and I do not think that it was possible for allottees to persuade the Land Commission that they had possessions which they actually had not. I do not think that any of those people got possession of land by persuading the Land Commission that they had deposits in the banks or stock to put on the holdings. Perhaps the men had the conviction that they could make good. Many of the men in possession of land and fully equipped who got holdings were broken since 1929 or 1930. That was due to circumstances quite beyond their control. Men who were less well-equipped to meet the onslaught of economic difficulties could hardly be expected to make good in circumstances in which abler men were worsted. For the Land Commission to come in and dispossess a man now, to leave him on the roadside without adverting to the circumstances which existed when he got possession of the holding, is to put all the fault at the door of the allottee and to fail to advert to the failure of the Land Commission in its original decision.
It is easy for a Department to wash its hands of failure. I find no fault with the administration of the Land Commission. Perhaps, I am less in contact with it than other Senators because it has less to do with the part of the country from which I come than it has to do with other parts. Be that as it may, account must be taken of the fact that you have a limited number of persons who are now ten or 15 years older and less competent than they were when they got possession of these holdings. They are to be dispossessed. I do not know what is to happen to them. If they are to become the waifs and strays of society, you will be creating a problem. There is a moral obligation on the Land Commission, before these people are dispossessed, to cast their minds back to the circumstances under which they obtained possession of the land and see whether or not they got a fair start. If they did not get a fair start, if they got land under conditions which made it impossible for them to be successful, all the responsibility for failure should not be placed at their door. Some of the blame should be borne by the Land Commission. Before the Land Commission put these men on the roadside, there is a moral obligation on them to consider that aspect of the problem. However, the Minister is not accepting that view.
Amendment put and negatived.
The following drafting amendments by the Government were agreed to:—
5. In page 3, Section 5, sub-section (1), to insert in line 35, after the words "entered into" the words "or deemed to have been entered into".
6. In page 3, Section 5, sub-section (2), to insert after the word "made", wherever it occurs, the words "or deemed to have been made".
I move amendment No. 7:
In page 3, Section 6, 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.”
Is the Minister accepting this amendment?
No.
The Minister made no case against the amendment on the last occasion. The point at issue is a very small one but a principle underlies it. On the last occasion, the Minister said that there was no need for this amendment as the Land Commission would always do what it suggested. If the Land Commission are to carry out the necessary steps, they should do so in pursuance of a statutory obligation so that they cannot change their minds at a later date. In the Act of 1891 it is provided that the land certificate will be conclusive evidence of title except as by that Act is otherwise provided and except in so far as on the face of the land certificate is expressed.
Section 38 of the Act of 1891 provides that where a holding has been added to another holding it need not be expressly stated on the face of the land certificate. The Minister makes this point, that in land certificates in the future there would be a note added that the particular land in question would be subject to Section 38 of the Act of 1891. I made the point that while I accepted this as being his intention, it could happen, even with the Land Commission, that a mistake could be made. If, after a proper investigation, this certificate was not given, no solicitor and no lawyer and no competent person purchasing this particular holding could avoid getting a bad title. No matter what investigation a solicitor went through on behalf of his client if the Land Commission certificate did not contain these words, even through a mistake, the people who purchased, maybe at a substantial price, could be put out the next day. Sub-section (2) of Section 6 declares that any assignment made in contravention of the section is void. The Minister produced so many red herrings and begged the question so often on my first three amendments that the result is that what the House has done is completely chaotic. I am trying to avoid the Minister drawing more red herrings and begging the question on this amendment. Let us keep to this amendment. I am entirely in agreement with the Minister that where land has been added to an uneconomic holding to make the holding economic, the holding should not be again subdivided. If it is, it means that there are two uneconomic holdings where there was only one originally. We are all agreed on this principle. It is only a question of the machinery to operate it and the machinery proposed by the Minister is quite satisfactory if carried out. I fail to see why there would not be a statutory obligation on the Land Commission to carry it out and a statutory right for a person who purchases, if through error, the Land Commission fails to do what the Minister promises. I suggest that if the Minister looks at it from this angle he cannot find any objection to this amendment. All I am asking is that if a person buys without notice what is a consolidated holding, his rights should be preserved.
I suggest that the Land Commission and the Minister should be able to take all the steps necessary to make sure that the purchaser has notice. If he buys a consolidated holding after getting notice I have no patience with him, but where a purchaser buys in good faith without notice, there is no justification for the Land Commission saying that this man has a bad assignment and is liable to be put out of his land.
I fear the Greeks when they bring gifts. When Senator Sweetman kicks off by saying he is in entire agreement with the Minister I immediately see a red herring in his hands with which he proposes to disembowel me. The principle is that where a man with an uneconomic holding applies to the Land Commission for an addition to the holding when land is being divided in his locality and is successful in his application, the Land Commission has achieved one of its main purposes of making uneconomic holdings economic by the addition of a certain amount of land. If permission is given to the man who gets the land, to sell immediately one portion of it, then instead of having made an uneconomic holding economic we have made two uneconomic holdings. I do not think that any great injustice can be done or even a minor injustice, but I can see that if the loopholes were permitted to continue a great many people might take advantage of them. I said to Senator Kingsmill Moore on the last occasion that there is no reason why we should not try to make any case of injustice in a Bill right, unless through our trying to do so, a greater injustice is created. In this particular case the Land Commission will take the first opportunity, and that will be an immediate one, of notifying the Land Registry to make the necessary endorsements on the papers concerned, and will, as far as is humanly possible, provide against the errors which Senator Sweetman fears. I think that instead of any defective decision of the Land Commission he was more fearful that his legal colleagues might neglect to make the proper investigation.
That is most unfair.
I did not mean it so.
If the Minister will undertake, so that it goes on the records of the House, that in any case in which a solicitor asks if there has been consolidation in a particular case and if Section 6 of the 1946 Act applied that the Land Commission will answer the solicitor within seven days of getting the request, then I am prepared to accept the Minister at his word. But I am not prepared to have every sale held up while interminable correspondence is carried on. If the Minister will say that this will be done within seven days, then any solicitor who does his duty properly can get what he wants.
I would like to give this undertaking but I do not think it would be possible. I could say that there could be a guarantee given to reply within seven days informing the solicitor that the matter was being examined, but to give a guarantee that the information could be given is a different matter.
The Revenue Commissioners produce a certificate always within one week.
I would like to give this guarantee but I do not know what its implications are, and I doubt if it would be possible to give it.
Might I suggest this: I take it that I have caught the Minister a bit short in his imputations on the legal profession, but I did not imagine he was serious. I know that the Minister will want an opportunity of looking into it, and I think he will find that it will always be possible for the Land Commission to know at once whether they have made a consolidation up to date or not. I am not tied to the period of seven days. Fourteen days might be a more suitable period. Might I suggest that the Minister would meet it in this way—he could accept the amendment and examine the possibility of giving an extension of time at a later stage? If necessary, the amendment could be rejected by the Dáil. If he adopts that suggestion, I would not move to press the amendment. My only object is to find a modus operandi.
I want to avoid any injustice being done, but I do feel that if the amendment is accepted, openings would be provided for the evasion of the Act.
If the Minister could give us that guarantee, he could accept the amendment and have it deleted in the Dáil.
It is not a simple matter, but I will undertake to go into the whole thing.
But, if you do accept the amendment, you cannot introduce something else in the Dáil. That is the position you are in.
Would the Minister be prepared to state it quite clearly so that it will go on the records of this House and be available to the other House? Would the Minister, and the House, be prepared to accept the amendment? If it is accepted on the Report Stage, the Minister would be enabled to look into the matter before the Bill goes back to the Dáil. I am quite satisfied if it is considered on those lines.
The difficulty is that the amendment would leave openings for evasions and create a condition of things which we want to avoid. I have no knowledge that the difficulty which the Senator envisages has ever been created before——
We never had the section before.
Yes, we never had the section before. The section is there to meet a difficulty, and we have not yet met that difficulty.
You have something similar in the Act, but it is not quite as clear so far as the avoidance of assignments is concerned.
It appears that this section is for the purpose of restricting the purchaser in dealing with additional land given to the seller for the enlargement of his holding. The original holding may be registered in the Land Registry, but the enlargement may not. If the original holding is vested, then it ought to be easy to put on the folio some note of caution that would enable the purchaser of the original holding, which I presume would be sold with the enlargement, of the existence of the enlarged holding. It is usual, I think, to provide that where a holding is given to a purchaser, he cannot assign, sub-let, or sub-divide it without the consent of the Land Commission.
This provides that he cannot assign, sub-let or sub-divide the additional holding or the additional land. The difficulty may arise where the additional lands are registered with the Land Registry and the section applies in such a case. The question then arises: how is the purchaser to know that this was additional land? In theory, perhaps, the method suggested by Senator Sweetman would work, but it could never work in practice because the seven days' limit would be impossible, and it would be unfair to impose it on any Government Department.
Senator Sweetman has said that the Revenue Commissioners can give a certificate within seven days that there is no income-tax due. I do not agree with him, because I know it is the practice of the Revenue Commissioners when they receive an application for certificate, to look for some means of imposing income-tax, and I know that certificates have been held up for months while the Revenue Commissioners proceeded to see how they could assess income-tax. It looks all right in theory, but it does not work out in practice.
Senator Sweetman has not tied himself down to seven days in his amendment.
That is the compromise. His amendment would make sub-section (2) read as follows:—
"Every assignment, transfer, sub-letting or sub-division in contravention of sub-section (1) of this section shall be void, except as against a bona fide purchaser for value who had no notice that any additional land had been provided by way of enlargement.”
It is clear that the amendment can apply only to transfers. It cannot apply to sub-letting, because the bona fide purchaser will not be concerned with these matters. I wonder are there many bona fide purchasers for value who would be in the dark as to the exact position, because if a person is selling land, I think it is his duty, when he receives a requisition on title, to make inquiries in the Land Commission and if necessary, to send his town agent to ascertain the exact position.
I think the onus is on the landlord to satisfy the purchaser that the purchaser is not in danger of buying something against which there is a statutory inhibition. While, in theory, Senator Sweetman's amendment may be all right, I do not think that anybody will suffer injustice if the amendment is not inserted in the Bill. I do not think there was any danger of that.
There are two classes of holdings, the vested holding and the unregistered holding. A tenant cannot sell a holding that is not vested, without the consent of the Land Commission.
Unregistered holdings, agreed.
He must apply to the Land Commission, and the Land Commission can very easily say that they cannot consent because he is getting additional land.
Agreed.
If it is a vested holding a note can easily be put on the folio in the local registry of title and there can be no dealings on the land without reference to the Land Commission. It would be easy to ascertain whether the additional land can be given or not. Looking at the section I cannot say that I know the meaning of the word "provided". The Land Commission provide for the addition of land to a tenant's holding before they actually give him the addition. They must, first of all, provide it. After they provide it, they convey the fact to him at some future time that he is getting the land. According to the wording of this section, if the Land Commission have taken a portion of land for a particular person and have provided that land for him, although having given him no notice, then if that man sells his original holding, the sale would be null and void. It is all very well for Senator Ryan to say that the duty is on the vendor to show good title. It is, but the trouble is that, if the vendor gets hold of the money and disposes of it before the sale is declared null and void, it means that the purchaser has lost both land and money. That would be a very unfortunate position.
That is my difficulty.
On the amendment itself, I do not approve of the words "without notice to the purchaser". That would seem to imply that somebody is bound to give notice. The Land Commission is not so bound, so from whom must the notice come? I would prefer the words "without knowledge and who could not have had knowledge of the fact". Something should be done to provide for the danger that Senator Sweetman has contemplated. I do not know now when it could be done. There is also a difficulty about the word "provide". If notice is not given, he could easily say: "I am not getting additional land." Then application has to be made to the Land Commission and it would be very hard for the Land Commission to know within a certain time. The position is that a scheme is made by the local inspector and is sent to the commissioners. It is approved or disapproved. I suppose it is made out in duplicate, as otherwise it would be very hard for the Land Commission to notify within the time. Some provision should be made and I do not know when the Minister can do it, if he does not do it now.
This Section is in operation since the Land Act of 1939 and the change in the law now is to make it retrospective. If it were not there, any man who had a vested holding could sell his holding immediately he had an addition made to it. This would create a position which we must try to avoid. The Land Commission proposes to take the point of view expressed here in the previous debate, that is, to try to get in a note on the folio as quickly as possible Naturally, I expect that a solicitor doing his duty and trying to protect his client will make application for information in regard to the matter to the Land Commission and to the Land Registry; but there cannot be, under the new circumstances, any tremendous delay in getting the particular note on the folio, and that will be done.
I am not so sure that people will pay away money easily, particularly under the direction of a solicitor, without being sure of their ground in regard to these things. I have not such a bad opinion of solicitors as Senator Sweetman appears to think I have. Every effort will be made to provide information as swiftly as possible for solicitors and their clients. We cannot make provision for everything. It is not possible even for Senator Baxter to interpret Senator Sweetman for me, nor is it possible for Senator Ryan to do so.
Supposing I write in to the Land Commission and ask: "Has an addition been provided for the lands of folio XX, the property of John Murphy?" and they reply: "No"; and if I go on then and act for my purchaser, and with that letter in front of me I close my sale, the Minister will agree I have done everything I possibly can. Then it may transpire that the Land Commission made a mistake in writing that letter. Under this section, as phrased, notwithstanding that, my purchaser would have no title and could be put out of his holding, not merely by the Land Commission but also by the fraudulent John Murphy. That is what I am trying to avoid. The Minister will agree that that should not be and that there should be some method of avoiding it.
Again I doubt that you could have that letter from the Land Commission.
One satisfactory point about it is that, when a man knows he is to get an addition, he is not going to sell the land until the addition comes, since the holding would be so many times more valuable with the addition. He also knows that an addition usually is given to him for the purpose of being amalgamated with the holding and that, if he parts with the holding, the addition probably would not be given.
Amendment put and declared negatived.
I rise solely for the purpose of trying to see what we might do about the first three amendments. The situation now is that the second amendment was passed, the first amendment—which was bound to be consequential on the second—has been defeated and the third has been defeated also. Therefore, you have the certificate of the Land Commission at one moment prima facie and the next moment conclusive. I am not worried about it in regard to a particular case, but there is a principle involved. So far as the second amendment is concerned, the last person to agree to it would be the Minister, if he had not got the third amendment.
The Minister got the third amendment thrown out, so that I really do not know where we are. I suggest that there should be some agreement, some method under the procedure of the House, by virtue of which, when it is agreed as it was agreed and formally put from the Chair that the three amendments would be taken together, the decision of one would automatically carry a decision on consequential amendments. I raise this matter so that it may be clarified perhaps at the next meeting of the Committee on Procedure and Privileges, because otherwise the effect of it is that we have arrived at a completely nonsensical result.
Certain members did not regard amendments Nos. 1 and 3 as consequential.
We think they did. It was put from the Chair that the three were to be taken together.
The suggestion was that they might be discussed together.
Perhaps after that preliminary skirmish, I had better get back to the Bill itself. Everyone regrets that the Bill was necessary, and everyone hopes that the power that is there in terrorem with the Land Commission will be used very sparingly and very seldom. I sincerely hope that, apart from the power in Sections 2 and 4, we are not going to have some solicitor or some purchaser coming to Senator O'Dea or myself in order that we may go to the Minister and say: “Look here, the Land Commission has made a mistake; we have lost our purchase money, we have lost our land and it is up to the Minister for Lands to pay us back.” I hope, for the Minister's sake, if such a thing ever does happen, that he will not be the Minister in charge.
I understood that the first amendment was to leave out the words——
The Senator cannot discuss the amendments again on the Final Stage of the Bill.
There is a difficulty. If Senator Sweetman's second amendment had gone far enough in the deletion of words, it would have knocked out the words that are a contradiction. I thought they had, but evidently they did not.
They did.
Amendments cannot be rediscussed on this stage of the Bill.
If they had done so, it would be all right. With regard to the second amendment——
The Senator cannot discuss amendments on the Final Stage of the Bill.
