Seanad Éireann debate -
Thursday, 8 Jan 1948

Vol. 34 No. 23

Garda Siochána (Acquisition of Sites and Retention of Premises) Bill, 1947—Committee and Final Stages.

Section 1 agreed to.

SECTION 2.

Mr. Douglas

I move amendment No. 1:—

In sub-section (3), line 38, to delete the word "may" and substitute the word "shall".

I think it might be convenient if I were to take amendments Nos. 1 and 2 together as they really deal with the same subject. Amendment No. 2 reads:

In sub-section (3), lines 38-39, to delete the words "with such modifications as the commissioners think proper any of the" and substitute the words "all the relevant".

This whole matter was dealt with on the Second Stage and the position was left, to my mind, very unsatisfactory and anything but clear. The real matter of importance is to provide that if the commissioners exercise the rights of acquiring sites under Section 2, they shall be obliged to provide for compensation on the same lines as have been previously provided under the Acquisition of Land Act, 1919, and the Land Clauses Acts. Sub-section (3) provides that an order—that is, not an order made by the Government but an order made by the commissioners—for the purpose of acquiring a site may incorporate, with such modifications as the commissioners think proper, any of the provisions of the Acquisition of Land Act and the Land Clauses Act. It seemed to me, and I am still of the opinion, that the word "may" means "may" there and that it could not mean "shall". But whether that be correct or not, if it is intended to mean "shall", I can see no objection to saying "shall". The really important thing is to provide that it will not be possible for the commissioners to cut out of these Acts things that would prevent compensation on the old lines. If they want to change the method of compensation, that should be done in a Bill and not by an order of the commissioners in each particular case.

If I understand this correctly when a site is being acquired, after negotiations, etc., under this Bill the commissioners will make an order for each particular case. I am not objecting to their having these powers because I recognise that compulsory powers are necessary in the case of public services such as the Garda. In this case it might be to provide houses for Gardaí. Both matters are covered under the section but it is of the greatest importance that any provisions for compensation should be statutory and should not be left to be modified by the commissioners in the particular order in each case. That is the general understanding. I consulted several people outside and I have been approached by some people in connection with the matter. The general impression is that the Bill as it stands would enable the provisions in relation to compensation to be left out. I am not pressing that view because I am assuming that there is no intention to leave them out but these provisions should not be liable to be changed and modified in each particular case. What the Act should do is to give the commissioners power to make an order to acquire sites and to set up a system by which compensation will be settled and which they will have no right to change. The object of the amendment is to ensure that the relevant provisions of the Acts to which I refer shall be included in any order made by the commissioners.

Mr. O'Dea

I do not like to repeat what I said on the last occasion but I think it is perfectly clear that the word "may" means "shall". That is the word that is always used where a Minister or a Government Department is given such powers. It is an enabling section and the word "may" in this connection always means "shall" in a case of this kind and I do not think it could have any other possible meaning. It enables them to put into the order the particular provisions of the Acquisition of Land Act, 1919, and of the Lands Clauses Act.

Mr. Douglas

Do I understand that the Senator considers that the relevant provisions of these Acts must be incorporated?

Mr. O'Dea

I do.

Mr. Hayes

While it may be right that the word "may" means "shall", it is by no means certain, as we have heard that matter argued over a long period by Ministers in this House. Sometimes they say it means "shall" and sometimes that it means "may", according as it suits their particular book. Suppose we accept it that in this case the section is an enabling section and that it means that the commissioners shall incorporate these provisions, surely the words "with such modifications as the commissioners think proper" give the commissioners an absolute discretion. The wording of the section would give the commissioners power to leave out of their order, and to exclude from the provisions of a particular order, the part of the Acquisition of Land Act, 1919, which provides for arbitration. I do not say that the Commissioners of Public Works want to do that, but I think it is dangerous to put into a Bill that will be passed here powers for the commissioners to acquire land, in the first instance, and, in the second instance, to acquire land apparently on such terms as they may themselves think fit. Neither Senator O'Dea nor myself would like anybody to be in the position that they could acquire something belonging to us on terms that they thought fit. That seems to be the meaning of it.

Mr. O'Dea

The Acquisition of Land Act, 1919, tells you what can be added to the compensation and what cannot. One of the conditions is that an extra price is not paid because the land is acquired compulsorily. Then you also have the Lands Clauses Act which provides that compensation must be paid before the land can be acquired; it is on the payment of compensation that the title passes to the authorities. You must put in all those clauses in order to get title for the acquiring party—that is, the commissioners—and surely they must put in all those clauses in order to acquire proper title. Also it must be known that in those cases a stereotyped form is made out and used in every particular case—there are no exceptions.

Mr. Douglas

I am not a lawyer and I do not want to enter into a debate with Senator O'Dea as to what is the proper interpretation. That is not my point. My point is that there is genuine uneasiness, judging by communications that I have received. Whether that uneasiness should or should not have been stirred up is not the point. It is there and I want to be clear why this Bill should not be amended so as to put the matter beyond all doubt. There may be cases where it has been done in this way, but the words "with such modifications as the commissioners think proper" are taken by the public and by some lawyer friends of mine to mean that they have discretionary powers which they ought not to have and which are unusual.

This is not a question of good faith. I do not know what the next Government will be like or what the Government 20 or 30 years from now will be like. We must have commissioners and it is not a question of whether we think they will abuse these powers, or of what is intended. The whole point is that we have a Bill in regard to which there is some doubt and I suggest the least we might do is to try to make it clear. One of my objects is to try to get this Bill altered so as to make it clear and get it beyond all doubt. Then the uneasiness which is there will have no justification. I think it has justification at the moment in respect of the wording. That is bound to cause trouble and I urge the Minister to see if it cannot be improved.

Professor Johnston

Is there any hope that the Minister will accept this amendment? If he says he will, I am prepared to sit down, but if he is not prepared to accept it I must say something about it. This section seems to embody one of the provisions that we have objected to in connection with other measures. The practice is to set up as a kind of target a whole category of legal rights. Then the Minister proceeds to load the legislative blunderbuss and he fires it at all these legal rights. He peppers the target all over and then he walks up to it, draws a small circle near the middle and says: "Any shot outside that circle does not count." That was done in connection with the Poultry Hatcheries Bill and it is being done in connection with this Bill.

In that procedure the legal rights safeguarded by the Oireachtas have been shot away and there is substituted the discretionary power of the Minister. He may or not give back in the form of a favour or a privilege legal rights of which he has been depriving individuals, in this case the rights of compensation in accordance with the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919. There is all the difference between legal rights which cannot be altered except by the Oireachtas and privileges or favours completely at the discretion of the Minister, however benevolent he may be. There is just the same difference as there is between a freehold tenancy and a tenancy at will. In this country there is no necessity to point out the difference between a freehold and a temporary tenancy which has been known as a tenancy at will.

Minister for Justice (Mr. Boland)

I cannot accept this amendment. There is no reason for all this talk about taking away people's rights. It must be remembered that these Acts, the Acquisition of Land (Assessment of Compensation) Act, 1919, and the Lands Clauses Acts are machinery Acts. The power to acquire compulsorily is contained in this Bill and these are machinery Acts. One is an Act 100 years old—the Lands Clauses Act of 1845. There are a lot of sections in that Act that are inapplicable and all that is meant by the words "with such modifications as the commissioners think proper" is to cut away the parts of those Acts which are not applicable. Apart from any Acts, the right of private property is acknowledged; it is in the Constitution.

Mr. Douglas

Subject to law, and this is law.

Mr. Boland

Acquisition without compensation never was done and never will be done. These Acts are to the advantage of the Government; if they had not the machinery set out in these Acts to deal with compulsory acquisition, they would have to have some sort of bargaining arrangement. When it comes to acquiring land like that for the State, everyone wants the highest price he can get and these Acts are a protection for the State rather than the individual from whom the land is being acquired. I am not prepared to go so far as Senator O'Dea when he says that "may" means "shall". It certainly gives discretion.

Mr. Douglas

I think you are right.

Mr. Hayes

I am sure of it.

Mr. Boland

I do not think we could delete the words as suggested by Senator Douglas. All these Acts will have to be adhered to, whether they are wanted or not. In the 1845 Act there are references to land tax, poor rate and provisions relating to superfluous lands.

Mr. Douglas

If they are relevant should they not be put in?

Mr. Boland

They are not. All we are asking is to give the commissioners the right to take the essential parts and leave out the dead wood. What we are fighting about is merely a question of drafting. Am I to amend this measure now just for the sake of amending it? That is all it amounts to. I do not think it is reasonable to ask me to do that at this time. There might be something in it at ordinary times, but at the moment I would not agree to strike out those words. Barracks and housing for the Garda Síochána will come up on a later amendment, but I see no reason for this amendment at all. I think the uneasiness was caused by the two newspapers articles. The first article that appeared in the Irish Independent stated quite definitely that we were going to take houses from people without compensation. I see in to-day's paper—I think the Irish Independent again—or was it yesterday's paper?— a letter from some worried house-owner who says we are going to compel the landlord of a house in which a Guard resides to hand it over to another Guard. We are doing no such thing. That is what has caused all the trouble and confusion. I will not say it was malicious on the part of the Irish Independent but it was certainly very misinformed and Senators here in the debate on the Second Reading asked that that point would be gone into more fully. It simply was ignored, with the result that the public have been left under the impression that we are going to take their houses compulsorily from owners of property. In actual fact it is the very reverse of what we intend to do.

We intend compulsorily to acquire sites in order to build houses for the Guards. In respect of the houses which the Guards are now occupying they are entitled, as everyone is aware, to the protection of the Rent Restrictions Act. The landlords cannot get them from them now unless the Guard is removed from the district and then they can get them. As I said before, the reason that some of them are not being moved is because the commissioner cannot get accommodation for them. No rights are being taken from house owners. These articles have caused all the trouble.

I do not know what we are going to do if the papers are going to give leading articles giving wrong information, stirring up unrest. There is no justification for it. It is really too bad that they would not correct that impression. In regard to the other matter, it is simply to cut out the dead wood in these Acts, nothing else.

Mr. Douglas

As far as I am concerned, I have no more responsibility for the Irish Independent or the Irish Press or the Irish Times than the Minister has, perhaps rather less.

Mr. Boland

I have no responsibility for any of them.

Mr. Douglas

Neither have I, and we can leave it at that and agree. I think the reason for this so-called stirring up is that the Minister brought in a Bill that was worded in such a way as to make perfectly sincere and genuine people believe he was taking too much power. He wants us simply to leave it that he has assured us it will not be done. We may have to leave it there but I think he is ill-advised.

It was not my fault—and I think he will agree to this—that when this was debated before it was ignored. When the Irish Independent chooses to ignore the amendments which I put down to a matter which they have raised, I have at least as much grievance as the Minister has but I have a suspicion that there was another form of semipolitical entertainment that was filling the newspapers at the time, which may be part of the explanation. Whatever it is, I am glad the Minister raised the point because it did seem absurd that there should be a leading article dealing with a matter of very considerable importance and the criticism that Parliament was not dealing with it, and, when it was dealt with and debated in Parliament, that there were only two lines in regard to it—hardly a reference.

Mr. Boland

One would think, when a letter appeared, that they would have given the information given in this House but they did not do that.

Mr. Douglas

At any rate, I agree with the Minister, although I do not agree with him about the amendment, that when a matter like this is causing a good deal of criticism, it is a pity, when it is raised, as it was raised in a perfectly proper way, that there was no publicity. I am not claiming that there should be publicity for everything we raise here. To that extent I am agreeing with the Minister but I do not agree with him at all when he says that my amendment would take away powers which are for the advantage of the Government and for the person from whom the land is being acquired. He says they would have to put in all sorts of other things which are not relevant.

My amendment specifically provides that they shall include all the relevant portions of these Acts, and I suggest that I am putting it in a form which people can understand without any fear or uneasiness exactly what the Minister has stated. I do not say that it is exactly what he stated in the Bill but exactly what he stated in his speech that he wants to do. He wants all the relevant portions of these Compensation Acts included in every case. He says it is for the advantage of the Government. Well, I say it should not be for the advantage of the Government as against the person from whom it is acquired. I think the intention of the Acts is to provide a fair balance between the two. That is the object, and I am sure the Minister agrees.

I am sorry the Minister does not see his way to amend this. He speaks about the present time, but I would point out to him that a few weeks does not matter in this case. He has the powers at the moment. We have already put amendments into Bills. The Bill will not lapse if there is a general election in between. It can come to the new Dáil with the amendments in it and, in view of the uneasiness—and it is genuine uneasiness; it may have been wrongly cáused——

Mr. Boland

There are no grounds for it.

Mr. Douglas

Never mind for a moment as to who caused it. It is there. I think it would be better, in these circumstances, for the sake of a few weeks, to amend the Bill and to make it clear. However, that is my case.

Amendment put and declared lost.

Amendment No. 2 not moved.

Question proposed: "That Section 2 stand part of the Bill."

Mr. Duffy

Might I draw attention to a phrase which is not too clear? Sub-section (2) provides: "Where the commissioners consider it proper to acquire compulsorily any land as a site for a Garda Síochána station", and so forth. I am wondering whether the expression "land" is used in a restricted sense here because the expression is defined in the Interpretation Act, 1937, in Article 14 of the Schedule, as including messages, tenements, and hereditaments, houses and buildings, of any tenure. I am wondering whether the expression "land" has a restricted meaning. Does it mean land on which there are no buildings or does it mean land, as I think it must, on which buildings are erected? If I am correct in saying that the Interpretation Act applies here, then the power to acquire land is very much more extensive than what would appear by reference to the word "site". It may mean acquiring land on which a dwelling stands, acquiring a house, out-offices, any buildings, of any tenure, standing on the site. I think it would be desirable that that point should be cleared up.

Mr. Boland

It obviously must be taken in the context. Therefore, it means a site on which there is no building, to build a barracks or a house. You must take it in its context.

Mr. Duffy

But the word "land" is defined in the Interpretation Act, 1937, as including houses—dwelling houses.

Mr. Boland

I know. It has to be taken in the context there. It means land on which to build a house or a barracks.

Mr. Hayes

Land as a site.

Mr. Boland

As a site.

Mr. Duffy

If the Minister, as a result of this discussion, gives an assurance that the commissioners will not acquire any land except a virgin site, then it is one thing; we have achieved something; but, in the absence of that assurance, I would submit in the presence of the lawyers in the House that if the commissioners go into court they can acquire land for a site upon which there are buildings now standing.

Mr. Boland

Of course, I could not give that guarantee. There might be an old ruin on it or a tumbledown shack. The object of the section is to acquire sites in the ordinary acceptation of the term, on which to build either a Garda barracks or houses for Guards.

Mr. Duffy

This land is acquired compulsorily.

Question put and agreed to.

SECTION 3.

Mr. Douglas

I move amendment No. 3:—

In sub-section (1), lines 2 and 3, page 3, to delete the words "the accommodation of members of the Garda Síochána" and substitute the words "a Garda Síochána station".

Amendments Nos. 3, 4, 5 and 6 all hang together and might be discussed together. They deal with the same point. Here again there has been a good deal of uneasiness. A great many people are under the impression, which has no justification whatever under the Bill, that if, for instance, they let a house to a Guard they are going to be forced to let it to another Guard if the other one leaves it. There is nothing in the Bill which gives any justification for uneasiness on that matter. It is important that both the Minister and those who criticised him in other respects should make that clear. A good deal of uneasiness has also been caused by the idea that, in some cases, the Government may hold houses for Guards. The Minister answered that by stating that they do not. In view of that I want to know why they changed the wording in Section 3. Section 2 makes it quite clear that they are acquiring land as a site for a Garda Síochána station or for a house for a member of the Garda Síochána, but when you come to Section 3 you find that it speaks of "premises to be used for the accommodation of the members of the Garda Síochána."

Now premises used for accommodation might be a Garda station or might be a private house, and therefore I am not surprised that there has been this uneasiness. I think that the Minister, with all his legal advice, could misread an Act himself. In view of this change in the wording as between the two sections, I am not surprised that some people, having been scared about this, got a copy of the Bill and decided themselves that it goes a lot further than it does. I think that the answer given by the Minister on the Second Reading was perfectly reasonable—that this section applies only to a Garda station. If that were set out in the Bill it would save all the trouble, and that is my object in putting these amendments.

Mr. Boland

Under the earlier Acts, when barracks were acquired they were not called barracks; they were called premises for the accommodation of the members of the Garda Síochána. That wording was followed in this Bill. Unfortunately, in one section a complication arose when it was proposed to take sites on which to build houses for Guards. It would have been better, I suppose, if the old phraseology had been dropped when dealing with stations in the other section, but the draftsman followed the old wording. Under the earlier Acts, the wording in them was—houses for the accommodation of members of the Garda Síochána held by the commissioner and the Minister. The commissioner and the Minister do not hold any private houses for Guards.

Mr. Douglas

They will in future.

Mr. Boland

When they build them. As I have said, the commissioner or the Minister do not hold any private houses for Guards. That is a matter between the owner of the house and the occupying tenant. When the question arose as to building houses for Guards to live in a distinction had to be drawn as between these sections. It would have been better if the word "station" had been used but it was not. That is what is intended, but the old wording was followed. I admit it is a bit clumsy, but I do not think that it is worth amending the section. There is the distinction that I have pointed out. In one case sites are to be acquired for the building of houses for individual Guards and the other deals with premises for the accommodation of members of the Garda Síochána. If we did not want the Bill in a hurry I would be prepared to agree to the amendment. I do not think the Senator ought to press it because as far as I see there is not very much in it.

Mr. Hayes

The only thing in the amendment is that there was a considerable amount of uneasiness among people who were landlords and the owners of houses which were occupied by individual members of the Gardaí. I got several letters about the matter, and having heard the Minister on the Second Reading, I wrote to those people and told them that their position was that when an ordinary member of the Gardaí occupied a house as an ordinary tenant he was protected by the ordinary law and that this Bill did not concern him. One of them replied to me and quoted Section 3, having, as he said, consulted a lawyer. Perhaps it is fatal to consult a lawyer in the country—I do not know. It is very unfortunate, however, that the word "station" is used in one section and the phrase "premises for the accommodation of members of the Garda Síochána" in another, because the word "members" is assumed by those people to include "member". There is a certain amount of confusion between providing a station for members of the Garda Síochána and providing a house for a Garda.

There is a very genuine case for the amendment so as to allay a certain amount of uneasiness which prevails. I think I understand the defence made for the section by the Minister that the premises to which Section 3 applies are never premises owned by any person except the commissioner or the Minister. The section applies only to premises held by or on behalf of the State at the time of the passing of the Act. It is important that everybody throughout the country concerned should know that this section does not apply to any privately owned premises. Is that not correct?

Mr. Boland

Yes. We are taking power to hold premises in which members of the Garda are accommodated in stations for a maximum period of five years in the hope that new buildings will be provided in the meantime.

Mr. Hayes

A person who leases premises for a station may be affected by this Bill, but as regards the person who has let premises to a member of the Garda Síochána his position, whatever it is to-day, will be no worse when this Bill becomes an Act.

Mr. Boland

That is right.

Mr. Hayes

If people would understand that it would save us a good deal of correspondence. The position, therefore, is that when an ordinary Guard gets a house he is in no better position than a member of the public and the owner may proceed against him and deal with him under the same conditions as if he were a civil servant, an excise officer or a rate collector. I assume that is correct.

Mr. Boland

Yes.

Mr. Hayes

It is desirable that that should be known. It is unfortunate that, in the drafting of the Bill, two different forms of words should have been used. I think that, if we had the time, we could persuade the Minister to accept the amendment.

Mr. Duffy

There is one point which I think should be made clear and which, I think, the public do not understand. In regard to premises held by individual Guards, this case was put to me. There are four council houses in the town of Balbriggan occupied by individual Guards. They have, some of them, been living there for a long number of years. I think that some of the houses have been occupied by Guards for 14 or 15 years. The pressure for house accommodation in Balbriggan is now very great, and the council would be most anxious to get the houses. I do not think they want just to turn the Guards out, but they have this desire, that, if a particular Guard leaves the town, the house would revert to the council and would not be handed down in perpetuity to Guards who might be transferred to replace a Guard who had left. The view was put to me by the members of the council that this section went much further than the Rent Restrictions Act inasmuch as it applied to council houses. The Rent Restrictions Act does not apply to council houses; in other words, a Guard has no claim to a house, if it is a council house, no matter how long he is there. Under the Rent Restrictions Act, the council can increase his rent or acquire the house. He has no right at all under the Rent Restrictions Act in respect of a council house, and the case made to me was that this Bill was doing something which was not done by the Rent Restrictions Act inasmuch as it was giving a Guard a claim in respect of a council house that he could not otherwise have. I think there is no ground for that view.

Mr. Boland

There is not.

Mr. Duffy

I want to get the point clear.

Mr. Boland

I was going to say that. As a matter of fact, the position of house-owners will be improved by this, because we are going to take sites in order to build houses for Guards. When the houses are built, the Guards can go into them and the owners will then have clear possession of their houses. It is going to be a benefit to house-owners when these sites have been acquired and the houses built. So far as Senator Duffy's point is concerned, they are simply tenants in the same way as anybody else would be a tenant of a council house. What Senator Hayes said was quite correct—the position they were in remains unaltered by this Bill.

Mr. Douglas

The reason it remains unaltered is that there are no houses held by the Minister or the commissioners. If there were, the position would be different and that is where the unfortunate wording has caused misunderstanding. The Minister says it would be better worded as I propose, but that he cannot accept the amendment as he wants the Bill in a hurry. We spent two days this week and a considerable number of days before Christmas finding in many cases quite serious flaws in Bills—some of them, in my opinion, much more serious than this—and none of our amendments has been passed. They have all been ridden down because somebody decided that there ought to be a general election. That position is extremely unsatisfactory. I think that it is in fact absurd.

We hear a lot about bringing democracy into disrepute and it seems to me that, when a Parliament exists which finds serious flaws in Bills, as we certainly did in the Seanad Electoral Act, and then proceeds, because it would cost a little money to call the other House together or would mean two or three weeks' delay, to pass those Bills, it is a farce; but so far as this amendment is concerned, I do not intend to press it, because, although I think it is a mistake and a flaw, I quite recognise that it is not nearly as bad a flaw as those in some of the other Bills we have passed without amendment, and, even if I had the power, I am not going to press on the Minister what was not done in the case of other Ministers. I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 4, 5 and 6 not moved.

Question proposed: "That Section 3 stand part of the Bill."

Mr. Crowley

I want to bring to the Minister's notice a position which has arisen in my part of the country in relation to a Guard with a wife and family who came into occupation of a small farmer's house. Since he came into occupation of the house, the property is being destroyed. Trees which give shelter to this small farm are being cut down.

An Cathaoirleach

I am afraid this does not arise on the section.

Mr. Boland

It is a matter between the owner of the house and the Guard.

Mr. Crowley

It refers to the accommodation of a member of the Civic Guards in the area, and I should like to know whether it comes under this Bill.

Mr. Boland

It does not come under this.

Question put and agreed to.

Sections 4 to 8 inclusive and Title agreed to.

Bill reported without amendment.

Agreed to take remaining stages to-day.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Hayes

I think it is clear that amendments to Bills passed by this House, if they were passed, could be considered by the new Dáil. There is, perhaps, some misapprehension about that, but it seems to me quite clear from the point of view of our constitutional rights that if we passed amendments to a Bill it would not kill the Bill but that they could be considered by the new Dáil, because this House will be called upon to consider legislation, perhaps financial legislation, from the new Dáil before it is dissolved. I was rather surprised to hear Senator Douglas say that, having assented to grievous defects in other Bills, he was prepared to assent to other minor defects in this. It is like the man who, having committed a few mortal sins, says he might as well go ahead with a greater number of venial sins. I am sure that was not his intention, but we have been induced to pass a number of measures without giving them the consideration we think they ought to get. In the case of this Bill, however, it was very necessary to get certain statements made in order to allay public uneasiness, and, to that extent, while the amendments were not pressed, I think they served a useful purpose.

Mr. Duffy

I should like to put this view, that the whole idea of pressing legislation through all stages at a sitting is most injurious to the tone, the dignity and the future of this House. The Minister is the least culpable in that regard because his Bill is quite a simple one, and I do not think there are very many difficulties about it, but we did let through other measures which were admittedly defective. It is wrong to create the impression that the legislation sent down from the present Dáil must get through this House before the dissolution. I do not think the Government themselves take that view, as, some weeks before Christmas, the Minister for Local Government accepted amendments to the Local Elections Bill. I do not think they will lapse. I think they will come back to the new Dáil. Those in a hurry have used the excuse of the approaching general election to get away with murder in this House.

Question put and agreed to.