Private Business. - Land Bill, 1963: Report Stage.

Before we take up consideration of the amendments tabled for this Bill, it would be well if I indicated that amendment No. 36 is out of order because it was not raised in a substantial manner in Committee.

It is suggested that amendments Nos. 1, 2 and 3 be taken together.

Government amendment No. 1:
In page 3, line 8, after "Act" to insert ", save where the context otherwise requires"; in line 12, to delete ", save where the context otherwise requires,".

On studying the views expressed by Senators on the Committee Stage — and especially Senator Sheldon — I decided that there were some small ways in which the definitions section could be improved and this amendment is put forward to cover them.

Senator Sheldon commented particularly on the latter part of section 1 dealing with the interpretation of "purchase money". This refers to the delegation of power to the Examiners of Title for the purpose of expediting the distribution of funds in court.

These funds are of various types and it is convenient to have a general defining clause to avoid repetition throughout the Bill. It is necessary, of course, to keep the defining clause in line with previous enactments, that is, section 35 of the Land Act, 1931, and section 52 of the Land Act, 1933.

The draftsman has had another look at this provision in the light of what was said in the debate. The official amendment should eliminate any possibility of misunderstanding. It covers the point in Senator Sheldon's amendment, and the opportunity has also been taken to put the customary "saver" phrase —"save where the context otherwise requires"— into the place where it usually occurs, at the beginning of such definition sections. That should, in the main, cover what the Senators had in mind in amendment No. 3.

I must say I am very happy with the Ministerial amendment. My own and Senator Cole's amendment was tabled solely to ensure that the matter could be raised again in case there was not a Government amendment on the point. I would not have had the audacity to go to such lengths in framing a new definition. I am very happy with the Ministerial amendment and I do not propose to move my own.

Amendment agreed to.
Government amendment No. 2:

In page 3, to delete lines 23 to 26 and substitute the following:

"every reference to purchase money shall be construed as including a reference to any redemption price of a superior interest, any resumption price, any compensation or any fund, and any residue of such redemption price, resumption price, compensation or fund, and any share in such redemption price, resumption price, compensation or fund, and any residue of such share.".

Amendment agreed to.
Amendment No. 3 not moved.

It is suggested that amendments 8, 41 and 42 be taken with amendment No. 4 since they are consequential.

I move amendment No. 4:

In page 4, between lines 12 and 13 to insert the following:

"( ) Every order made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder."

This is an amendment to section 4 of the Bill. Section 4 is the section which defines congested areas as:

(a) a county or portion of a county specified in the Second Schedule to this Act;

(b) such other area as may from time to time be declared by order of the Minister to be a congested area.

I said, on previous Stages of this Bill, that I considered it undesirable that the congested areas should not be written into the Bill. That has not been done. The Schedule to the Bill lists a number of counties, seven in all, and portions of other counties which are written into the Bill as congested districts. I shall list the counties and portions of counties. They are:

Donegal, Galway, Kerry, Leitrim, Mayo, Roscommon and Sligo.

The portion of the County of Clare comprising the former rural districts of Ballyvaughan, Ennistymon, Kilrush, Scariff, Tulla and Killadysert.

The portion of West Cork comprising the former rural districts of Bantry, Castletown, Schull and Skibberreen.

These have all been declared congested districts and have been written into the Bill.

The Chair suggests that discussion would be more appropriate on the Schedule.

With respect, I do not think so. I am leading up to the point that if the Minister sees fit not to write these districts into the Bill, then the House should not be deprived of any of the safeguards which are ordinarily given to them. I consider, on that line of argument, I am in order. I would find it impossible to make a case otherwise. These congested districts should be written into the Bill. If they are not written into the Bill and if the Minister is to take power to declare districts to be congested, then the House should be entitled to discuss such order.

I think the Senator has tabled an amendment to the Schedule.

Yes, but it is on a totally different point, with the greatest respect.

Very well, I shall hear the Senator.

As I was saying, these counties were written into the Bill as congested districts, and they were so declared as far back as 1909. Under this section the Minister is taking power to declare other counties, or parts of counties, congested districts by Ministerial order. I think this is an undesirable practice, if it can be avoided. This is legislation by Ministerial order. When a Minister takes unto himself the right to legislate by Ministerial order, the House should be afforded every safeguard normally available to it. The traditional safeguard of checking up on legislation by Ministerial order is the right of the House to discuss orders made by the Minister.

When I use the word "safeguard" I do not use it in any offensive way. I mean that both Houses of the Oireachtas are elected to legislate, and we should be very jealous of that right. The Minister tells us the subsection in this section which gives him the right to add districts to the list of congested districts is absolutely necessary. The purpose of this amendment is to require the Minister, when he makes such an order, to lay it on the Table of this House for discussion, to confer on this House the right to discuss that order within 21 days after it is laid on the Table if the House, and to annul it, if necessary.

The issue is as simple as that. I think it has been the practically invariable practice that when the power to make important orders like these has been given to a Minister in the past the Minister, in asking for authority to make orders, has always agreed to table them for discussion. The Minister was kind enough on Committee Stage to accept an amendment of mine on the same lines. It was an amendment to section 6 providing that every regulation made under the section shall be laid before each House of the Oireachtas as soon as may be after it is made. The Minister accepted my argument on that amendment, and I think the principle at stake then was exactly the same as the principle I wish to establish here. The safeguard which that amendment gave to the Oireachtas is exactly the same safeguard as I am asking the Minister to give to the House in this amendment.

I find it difficult to believe the Minister will not accept this amendment because, as I said it is purely a safeguard for Parliamentary procedure. It seeks nothing more than the retention of one of the privileges and rights of Parliament down through the years. I trust the Minister will accept this amendment as he accepted my amendment to section 6.

I agree with Senator Fitzpatrick, but I think it would be much better if a full list of the congested districts could be written into this Bill. After all, we have the same number of congested districts now as we had way back in 1909 when the British Government were here — 56 years ago. Surely the Land Commission should have at their disposal by now the information necessary for the Minister to declare different areas congested areas——

On a point of order, may I suggest that Senator L'Estrange may be talking very sensibly about something but it is not the amendment before the House.

I shall relate my remarks to the amendment. I believe that would be the proper course to adopt but, as the Minister has not adopted it, I am in favour of Senator Fitzpatrick's amendment. We are delegating too much power, and the idea at present seems to be to by-pass Parliament. I have said before, and I say again, that this power could be abused by the Minister or any Minister in the future. It could be used as a political gimmick before a by-election or a general election. As Senator Fitzpatrick said, we should be jealous of the powers we have, and guard against their abuse. Since the congested districts are not written into the Bill, the Ministerial orders should be laid on the Table of the Houses in order that there could be a full discussion on them by the Dáil and by the Seanad.

The amendment proposed by Senator Fitzpatrick and the three amendments proposed by Senator Cole and myself would have much the same effect except that ours are wider. I drafted my amendments under a slight misapprehension. I noticed that there were regulations to be made under section 5 as well as section 6 and section 45. I thought that all the regulations in the Bill and all the orders would be caught by the wording I suggested and that by saying "made by the Minister" regulations made by the Minister for Finance would be left out of account. On looking at section 2 and section 5 again, I think I am probably going too far and I would be very happy to withdraw my amendments and support Senator Fitzpatrick's. As I see it, the powers section 4 gives to the Minister are exactly the type of powers which cause controversy, and it is very desirable that any orders made with that type of background should be subject to Parliamentary review.

I do not know that I support this for the same reasons as Senators Fitzpatrick and L'Estrange. There seems to be some confusion as to what the Minister can do about the Schedule. I think he can do nothing about the Schedule except add to it. He cannot interfere with anything already in the Schedule.

He can. He told Senator Lindsay that he can.

I must be reading this wrong.

He can add to or subtract from, under section 4 (1) (b) which states "such other area as may from time to time be declared by order of the Minister to be a congested area."

And under subsection (3) the Minister may by order amend or revoke an order under subsection (1) of this section.

He can add to the Schedule.

But he cannot subtract.

He can subtract from what he has added but he cannot touch what is in the Schedule to the Bill. I thought there was some confusion earlier about this. I think the Minister thought at one stage that he could go messing about with County Donegal but he cannot, once this Bill is passed, unless he brings in an amending Bill.

To me, the important thing is that any order made under this section will necessarily be of a type which will be of very great political interest. It is absolutely essential that the Houses of the Oireachtas should have the opportunity to look at such orders. After all, an order made by a Minister may be discussed but it would take a revolution to have it annulled. Everybody knows that, in plain fact, Ministers exist by having a majority in the Houses. Nobody need be under any misapprehension that somehow a desirable Ministerial order will be wiped out in the 21 sitting days of either House but I think the opportunity to discuss it is very important.

I hope the Minister will accept Senator Fitzpatrick's amendment. I am quite happy to withdraw the ones in my name which I think are too wide. It would not be desirable at all that the regulations should be annullable.

I should like to support this amendment, but on general constitutional grounds. Ever since the Congested Districts Act, 1891, the country has been divided into congested and non-congested districts. The power of the old Congested Districts Board in the congested areas was very much greater than in the non-congested areas. It seems to me that to change a non-congested area into a congested area is to do something of fundamental importance to the inhabitants of that area and that it is giving the Land Commission power to do a great many things it had not the right to do before. It is a matter that affects all the residents in the area and it is a very extreme power, really, to alter the whole nature of the area. Therefore, I think that the Houses of the Oireachtas should have the right to discuss this matter.

The Minister has already accepted, in principle, that the order should be laid on the Table of the House. I agree that the House should have the right to annul these orders. It really raises bigger questions of the respective rights of the Executive and the Legislature.

I would agree with what Senator Sheldon has said about accepting Senator Fitzpatrick's amendment and withdrawing those in our name. I would urge the Minister to accept this chiefly because it would bring to the residents in an area a certain amount of Land Act land that did not apply there before. It is very important that the House should get an opportunity of discussing any areas that are added or possibly if changes are made in those areas later. Therefore I ask the Minister to accept the amendment.

Arising out of Senator Sheldon's assertion that the Minister cannot take anything from the Schedule in this respect, I should like to refer to the Official Report, volume 58, No. 6 of Wednesday, 3rd February, 1965. At columns 393 and 394, I am reported as follows:

Mr. Lindsay: In subsection (3) of section 4, which says that "the Minister may by order amend or revoke an order under subsection (1) of this section", does the word "amend" connote an intention to de-schedule an area, so to speak, once the target has been realised from the available pool of land?

The Minister replied "Yes". I think the Minister was right in that — that he can.

This was a very old question — the question of the power of the Minister to make orders. The truth is that the powers of Government have been so extended that it is possible to put everything into legislation. What is being done here is that certain areas which have been established long ago as congested are being continued but the Minister is taking power, which is really power to legislate, to declare other areas to be congested areas. That is a very important power. The very least that can be done — it is the compromise that has been accepted in general by people who object to Ministerial orders — is to have the orders laid before both Houses of the Oireachtas and to have power to have the orders annulled.

I am not advocating Senator Fitzpatrick's amendment because I believe the Minister is corrupt or that anybody will make unjust or improper use of this power but, taking everybody at the very highest possible valuation, it is true, as Senator O'Brien has said, that when you are making an important change about a definite area, a change which may affect everybody in the area — putting the area into a particular category which confers certain rights and benefits upon it — you should do so in the most public manner possible. There are people who would advocate that you should do it by legislation. I am inclined to agree with the Minister that that might be a very cumbersome method. The next best thing certainly is to make the order, to lay it before both Houses of the Oireachtas and to give power to annul, power which, as Senator Sheldon has said, has been very seldom exercised and, as a general rule, is very difficult to accomplish. I am not going the distance of saying the Minister should not have the power but, if the power is granted to the Minister that has been granted, it should be accompanied by the provision in relation to the two Houses which would carry the right not so much to annul as to discuss the enlargement of the list.

I think I still was right in agreeing with Senator Sheldon that the Minister has no power to subtract from the list in this Bill. But, if he adds something to it, he has the right to take from the addition on the list. The areas in the Second Schedule must remain and cannot be lessened or subtracted from by Ministerial orders. In the meantime, I hope the Minister will accept this amendment.

I wish to appeal to the Minister to accept this amendment. The original Schedule has stood since 1909. It is asking very little that amendments in something that has stood since 1909 should come before this House at least by way of having an order placed on the Table. We tried to have it introduced in a much more substantive way but this is the very minimum that can be countenanced.

The whole position of congested areas has drastically been changed by this Bill. Now, there is a very distinct monetary advantage to an area to be classed as a congested district. Previously, the monetary advantage did not apply. I refer to the advantage of halving the annuities in respect of those who come from an area scheduled as a congested district.

The Senator has now gone outside the scope of the amendment.

I am making the case as to why it is necessary now more than ever that changes in the Schedule should be laid before the House. Previously it had not the same importance and it related more to the speed at which the Land Commission were working and their priorities in solving the problem.

The Senator is going outside the scope of the amendment.

With all deference to the Chair, I have to state the reason why it is absolutely necessary that the Minister should accord the House this right. I appeal to the Minister to take the first step and abolish this House altogether.

I do not propose to abolish the House on this amendment, Sir, but I must resist the amendment, as it is put here. There are two legs to this amendment with which I shall deal, but I should like to refer Senators to the provisions of the Undeveloped Areas Act, 1952, which was quoted when we were debating this matter. This section of the Land Bill follows very closely the precedent of section 3 of the Undeveloped Areas Act, 1952. I want to point out that there was no provision under that Act for the laying or annulling of these orders which merely define geographical areas. I am not at all prepared to accept the negative approach signified in the second part of the amendment. It would be an entirely new departure in the land code and is quite unwarranted.

Orders of this type are carefully prepared by Ministers after full consideration of the facts, and no doubt of a very full report from their officials. They must keep within the limits laid down in the Act of the Oireachtas and they must also conform to general policy. I see no reason why such Ministerial orders should for the first time be put at risk of annulment, without even getting a fair practical trial.

If any Senator thinks that a particular order is illegal, unwise or unfair, there are several ways in which he can ensure that the matter will be well aired, as Senators are well aware. I might point out also that the Dáil, to which the Minister for Lands will always be answerable, has not asked for this, and I see no reason why it should now go into this Bill. Incidentally, let me emphasise, as has been said by Senator Hayes, that any extension under this particular section of the Bill to other areas, not previously defined in the Bill, would be for the purpose of conferring benefits on the people concerned in such areas

I want to emphasise the distinction that this would not deprive anybody in the new areas being brought in of some of their rights or taking something from them. On the contrary, it would confer on them the special benefits provided for the congested areas under the provisions of the Bill. In the actual working of the Bill a Minister for Lands may from time to time, on advice received from his officials, have to declare by order that a certain parish in a county not covered by the Schedule should be a congested area because of a particular kind of congestion found there or, perhaps, a townland in some of these counties might require to be scheduled in order to deal with the particular problem there.

If the amendment were carried, it would mean that the geographical extension in the provisions of this Bill would be subject not alone to debate in the Seanad but would possibly be annulled. I can well visualise that motions would be put down week in, week out, not that anybody would object to this particular townland or that particular portion of a county being brought within the scope of this Bill, for the purpose of bringing the Senators' own particularly favoured parish, townland, area or constituency into view, as to why such an area was not scheduled, and so on. It would be alleged that congestion equal to the congestion that exists in areas being brought in exists there. The purpose of the subsection of section 4 to extend the scope of this Bill I have already fully explained to the Seanad on Committee Stage. From time to time in the working of the Land Commission it will be found that portions of other counties need the particular attention which will now be given to the counties scheduled under the Bill and, from a practical point of view, such extension of the benefits being conferred by this Bill could not be objected to by anybody. Senator Fitzpatrick made the case that there might be abuse of this power by a Minister before an election.

I did not make any such suggestion.

Some Senator made the suggestion anyway. I would hope that whatever successor, of whatever colour, might in future occupy my post he would not be so far divorced from the realities of Irish political life that he would come up with a gimmick like that before an election. If he did, he should have his head examined.

We have had numerous gimmicks — the 50,000 letters.

I am reminded by Senator Lindsay — I was reading the Undeveloped Areas Act at the time— that I said yes, implying that subsection (3) of section 4 could be used for the purpose of cutting down the existing congested areas, as provided by law.

I do not think there is anything wrong with that.

There would be nothing wrong, but it could be done in another way. I was thinking of parts of certain counties where you have the two extremes. For instance, in east Galway there are large farmers with good land and you have the opposite in west Galway. The same thing applies in Roscommon. The answer to that proposition is that it will be at the discretion of the Land Commission as to where they will operate. All these matters are matters of discretion for them. They may, in a particular instance, give certain benefits and use these powers, as they think fit, regarding what portions of these counties would benefit from the provisions of the Bill. There is no compulsion on them by the mere fact that the whole of a county is scheduled to give the benefits or use the powers conferred in this Bill for one part of the county, if there is no necessity to do so.

For all these reasons, I must resist the amendment. Also, I might emphasise that the section, as it stands, follows the exact precedent laid down in section 3 of the Undeveloped Areas Act, 1952. I think, merely by extending the taking in of further portions or counties under this Bill, by Ministerial order, for the purpose of conferring on these people the benefits that will come under this Bill could not be objected to by anybody. They would be brought in just the same as under the Undeveloped Areas Act. The special benefits of that Act were confined to the areas set out therein but there was provision to broaden the scope of the Act, should the necessity arise. The same power is there in the very same way under this Bill. It is to extend the provision, should necessity arise, that this is brought in; otherwise, we would never finish with this particular section, either here or in the Dáil because every Senator would argue that his particular area should be brought within the scope of the Bill and that the whole country should be declared as congested.

I wonder would the Minister be allowed to do that in the Dáil or here?

That proposition was argued, if not here, at least in the Dáil. Strong arguments were made that we should make Meath and Westmeath congested areas. Under the 1906 Act these counties and these portions of counties were declared congested because, as everybody will realise, these are the areas where we have the worst pockets of congestion in the country. I could not see any practical advantage, from the country's point of view, or, indeed, from the point of view of the House itself, in accepting this amendment and I am constrained to resist it.

I am very disappointed that the Minister has not seen fit to accept this amendment, as drafted or, perhaps, in some modified form. It has been admitted by the Minister that he is being given very wide and very important powers under this section. He has been given the power to apply important sections of this Bill to various parts of the country, not at present covered by the Bill. That is very important. The people living in parts of the country to be affected by Ministerial order will have their rights as citizens and as owners of property interfered with. Other people in those areas will be entitled to benefits not conferred on people outside the congested areas. Therefore, it is indeed, a very important power the Minister is taking. It is a power which, in normal circumstances, should be exercised only by both Houses of the Oireachtas.

The Minister has seen fit to reject both parts of the amendment and he admits there are two parts in the amendment. The first part of the amendment merely invites the Minister to agree to lay on the Table of this House an order which he makes, as soon as possible after he makes it. That is one distinct part of the amendment. As I see it and, subject to correction, that would merely confer on the House the right to discuss but not the right to annul such an order. I cannot see what arguments the Minister can put before the House against the acceptance of that part of the amendment. It does not, interfere with an order which he may make.

The second part of the amendment seeks to give to this House the right to annul an order within 21 days of its being tabled. The Minister has based all his case against both parts of the amendment on the second part. The Minister has also gone back to 1952 for a precedent in the Undeveloped Areas Act. That leads me to believe that it is the only precedent available to justify what is being done now. From time to time pieces of legislation slip through either one or both Houses of the Oireachtas which constitute a very bad precedent. The Minister has relied on the Undeveloped Areas Act for this particular precedent — a precedent which, I submit, should not be followed here. That is what we are seeking to do now.

We are asking the House to approve giving to a Minister the right to take away from the rights of some citizens and confer further benefits on other citizens by the stroke of his pen and without the right of the House to discuss the Minister's act. It is even more important that we, in this House, have the right to discuss orders of this sort. We should be very jealous of that right. It is sometimes complained that the House performs no useful function and that its continuance is a very doubtful proposition. The Dáil can discuss an order made by the Minister under this section, on the Vote for the Minister's Department the year after he makes it but this House has no such right. Therefore, I consider there is a good deal to be said for accepting this part of the amendment:

Every order made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made...

That is a very simple request. It will not interfere with the working of the Act because once the Minister has made an order that is the end of it. We can only discuss it. We can only bring the full light of day on it. We can only say the Minister should not have made the order.

With all due respect to the Minister, his predecessors and his successors, it is a good thing that, when a Minister is making an important order such as this, he should do so in the knowledge that he may have to answer to a resolution in this House, or in the Dáil, and justify the making of the order. I think it is going a lot too far and acting in a dictatorial way to say: "I am going to take the right to make these orders, and I am going to answer to neither House for them."

In a last and final effort I suggest the Minister should without question accept the first part of the amendment. I say he has not even attempted to make a case against the first part of the amendment. I do not think there is any answer to the case that has been made for the first part of the amendment. I do not see that it could do any harm. It could do a lot of good. The worst feature is that we are re-establishing, confirming and consolidating a bad precedent that crept into an Act, because someone did not detect it in 1952. I cannot put the case any further. I think an unanswerable case can be made for the acceptance of the first part of the amendment and I propose to press it.

Will the Minister accept that suggestion?

I have already said that it is open to anyone who thinks there is anything wrong in the Bill to raise it by way of question or motion. The extension of this section cannot confer any disabilities. It can confer nothing but benefits.

It can confer disabilities.

What disabilities?

On owners. It can make it easier to take land from them.

No, it cannot.

Amendment put.
The Seanad divided: Tá, 13; Níl, 20.

  • Butler, John.
  • Cole, John C.
  • Fitzgerald, John.
  • Fitzpatrick, Thomas J.
  • Hayes, Michael.
  • L'Estrange, Gerald.
  • McAuliffe, Timothy.
  • McDonald, Charles.
  • Mannion, John.
  • O'Brien, George.
  • Prendergast, Micheál A.
  • Quinlan, Patrick M.
  • Sheldon, William A.W.

Níl

  • Boland, Gerald.
  • Brady, Seán.
  • Brennan, John J.
  • Browne, Seán.
  • Costelloe, John.
  • Donegan, Bartholomew.
  • Eachthéirn, Cáit Uí.
  • Farrell, Joseph.
  • Flanagan, Thomas P.
  • Hayes, Seán.
  • Hogan, Daniel.
  • Killilea, Mark.
  • Mooney, Joseph M.
  • Nash, John Joseph.
  • Nolan, Thomas.
  • Ó Ciosáin, Éamon.
  • Ó Donnabháin, Seán.
  • Ó Maoláin, Tomás.
  • Ryan, Patrick W.
  • Yeats, Michael.
Tellers: Tá, Senators Fitzpatrick and L'Estrange; Níl: Senators Farrell and Ó Donnabháin.
Amendment declared lost.

I want to protest in the strongest possible manner at the time it took to close the doors. I was outside the door with Senator Carton and as soon as the bell stopped I put out my cigarette and went towards the door which was still open and was forced against me.

If that is the case, people came in at the other door definitely two minutes after the bell stopped.

The Chair regrets any inconvenience caused to the Senators.

I understood we had a certain length of time after the bell stopped.

I move amendment No. 5:

In page 5, to delete lines 1 and 2 and substitute:

( ) suitable, in the opinion of the Land Commission, for land resettlement purposes for the relief of congestion on adjoining holdings that are under the equivalent of 25 acres of arable land and are not in need of rearrangement.

This amendment is an effort to meet some of the points of view raised here on the Committee Stage when I had a wider amendment. Section 5 deals with advances for voluntary migration to people who are situated in the congested areas and who move out and buy a place of their own accord. They are entitled, then, to the various advantages that can be got under this section— to the advancement of purchase money, and so on—provided they satisfy the definition of "qualified person" under subsection (4) of this section. In other words, a person must (1) be a proprietor of a holding which is situate in a congested area and (2) which is suitable, in the opinion of the Land Commission, for land settlement purposes and (3) agreed to be sold.

In this amendment, I want to restrict considerably the definition of suitability as given in sub-paragraph (b), which says that the holding surrendered should be suitable, in the opinion of the Land Commission, for land settlement purposes. We are very vague about what yardstick is to be used here. All the pronouncements we have got suggest that the yardstick to be used will be the yardstick of the family farm of from 40 to 45 acres or the equivalent of 40 to 45 acres of arable land. If this is applied, and if this is the standard of suitability to be adopted by the Land Commission under sub-paragraph (b) it will lead to the breaking up of a holding to make additions to neighbouring holdings that were formerly settled at considerable expense to the Irish taxpayer under the various land resettlement schemes.

It was pointed out on the last day by Senator Boland that some of the earlier settlements were a mistake and that they were too small. In this amendment, I seek to meet his point by setting the upper limit for holdings at 25 acres. In other words, if there are Land Commission holdings around the proposed farm and if these are under 25 acres, or the equivalent of 25 acres, of arable land, then they would qualify under sub-paragraph (b) for suitability; in other words, are holdings that need additions. I am not happy about the 25 acres but I put it in in the hope of getting something. Any farm that has been the subject of public money up to this should not now be brought back into the queue for land and section 5 should not be used to speed the breakup of holdings.

What could happen is this: if you had an area where there were four holdings of a previous settlement, each of them being of 25 acres, that represents just 100 acres which, according to Government policy, is only the equivalent of two holdings. The section could be used to enable two of those men to move out and leave an area behind to be sub-divided or added to the adjoining holdings. I think that that will be very wrong because, facing the practical realities of the situation, we just have not got the land to give out in that way, consequently this section or any other section of the Bill should not be used to facilitate or encourage such a breakup.

There is no need for me to go very far into figures. The Minister himself has given figures, saying that he accepts the fact that a reasonably well run farm can pay £30 an acre family income to the owner for his labour. At the limit I have set here of 25 acres that provides an income of £750, and surely if such an income can be obtained there is no case for spending more State money in adding to that farm by giving it an increased acreage.

The farmer will probably need increased capital, and that should be supplied as a matter of urgency, but the provision of additional acres is asking us to give something we have not got, and to give what today is the most expensive commodity that can be purchased namely, land, with the greatly inflated prices that are being paid for it. I would, therefore, ask the Minister to meet our reasonable requirements in this regard. I know that it is not popular to advocate not giving, whether it is not giving money or not giving land. but we have to take unpopular stands here. It is too easy to suggest the giving of money or of land without being concerned with their provision. That is why I take my stand on this section and say that its provisions for self-migration should not be used to break up farms that have already been set up and which, if they were given sufficient capital, could provide a first class family income for their owners. I appeal to the Minister to accept the amendment.

I support this amendment, but I should say at the outset that I am not particularly happy about the fact that 25 acres have been suggested. I do, however, support Senator Quinlan's point advocating that instead of spending money on such holdings a second time, an effort should be made to give the particular holding an infusion of capital as an end which should achieve the same results. At present, it is extremely difficult for quite a large section of the farming community to have an easy access to capital. This fact, perhaps, does not rightly come under the Bill, but, nevertheless, I believe that when congests get settlements once it should be considered enough, seeing the large numbers we have — the Minister the last day said that there were over 40,000 congests. Therefore, people who have already benefited from the Land Commission should be made to take their place in the queue as it were, as the Senator rightly suggested. The way should be made easy to them to avail of capital under some scheme in conjunction with the advisory services. I believe that this is something a very definite effort should be made to get under foot.

We read in some of the farming journals where individual small holders are able to make quite sizeable profits out of small acreages. I agree that it is not possible for every farmer to achieve these results in the matter of return per acre, since there are a lot of factors to be considered, including, perhaps, vicinity to towns and large centres of population if he were to go in for market gardening, but, nevertheless, an effort could be made to induce more of these farmers living on uneconomic holdings to turn to intensive pig production or other such schemes that do not necessarily need a large amount of acreage. Instead of the Land Commission, perhaps, devoting several thousand pounds to these farms which have benefited previously from the Land Commission policy, they should be put on the list under some other department such as the Department of Agriculture or the Agricultural Credit Corporation and a genuine effort should be made to have them avail of services already there and, perhaps, make it a little easier for them to do so.

I should like to support the amendment, though I am not too happy about the 25 acres mentioned by Senator Quinlan and would prefer the acreage left without specific mention.

The amendment would be impracticable. It is completely restrictive and, as it is worded, would exclude cases of rearrangement altogether. I am not prepared to accept the amendment, and in relation to a similar amendment on the Committee Stage I expressed opposition to a proposal which would limit the discretion of the Land Commissioners in deciding how they should get land. This new amendment is very similar in this respect and is completely objectionable. It is sufficient that an applicant's land under this section should be in a congested area and should be suitable for land settlement purposes. After that, the Land Commission should decide the details of what is to happen to the actual land. It would be quite wrong, in my opinion, to write in an acreage limit of up to 25, or any other limit for that matter, outside making a statutory provision defining what is and what is not arable land in different parts of the country. It is unworkable, impracticable and must be rejected by me.

I am very surprised and disturbed at the Minister's approach to this. It is simply that the Minister is not prepared to come out and say that farms that have already been done handsomely by the Land Commission in former settlements should not be now put into the land queue and told that they are entitled to more additions. I met some of the points raised the last day where Senator Boland mentioned that mistakes had been made in regard to certain holdings, that they were 10 acres or less. I met that by suggesting a limit, but surely the Minister and the Government are not serious in indulging in the eye-wash that we have land enough to get those of 25 acres and over back into the queue again.

In other words, we are talking in an age of planning. We have had our first and second economic development plans. We have been given targets and told where we are going. But, here we have a Bill which proposes the implementation of a Government land policy and, as is shown in this section, it refuses completely to face up to the consequences of our actions. Government land policy, as enunciated by the Taoiseach, and later by the Minister for Lands in August, 1962, is based on a family farm of 40-45 acres of good land and all farms below that standard would be classed as uneconomic and should seek additions. Let us adopt a rational planning approach to this. First of all, we have 80,000 holdings which have got a great measure of Government support in rearrangement since 1923. As well, we have 80,000 that are in a worse condition than those. They are the rundale holdings in the west. They have not been touched.

If we accept the Minister's figure of 50,000 and that many holdings are vacant and have been abandoned and will be acquired under this Bill, it is optimistic to suggest that these 50,000 holdings have got the equivalent of 15 acres of good land on the average. Government land policy says these holdings must be brought up to 40-45 acres. In other words, they need an addition of 25-30 acres each to meet Government land policy but the Taoiseach in his statement to Muintir na Tíre said it will take a long time before all farms are brought up to this size. But, taking the required 750,000 acres, the Land Commission, as shown in a 1963 report, have been providing at most 25,000 acres. That means they might be expected to solve the congestion problem of the yet untouched farms in thirty years.

Let us look at the matter in another way. The Land Commission have succeeded up to this in dealing with something under 2,000 holdings per annum. Again, at the rate of 2,000 holdings per annum, it would take some 25 years to deal with the 50,000 which should be of first priority. We cannot see in such a policy anything other than the hope that the problem will solve itself merely by attrition, the death of the owners or the departure of much greater numbers to Manchester and Birmingham. Then the land would be left behind to bring the others up to 40-45 acres. If this land could be acquired, the cost — according to the land resettlement figures — would run to around £300 an acre which would require a total of £225 million. At present we are spending £3 million on it. In other words, it is impracticable, both financially and from the point of view of the availability of land, to bring the 50,000 holdings that have not been touched up to the size laid down by the Government of 40-45 acres. They can, at most, be brought up to something substantially less than that and the deficiency made up by proper capital injections which will produce a better result.

We could accept the fantasy, the only word I can use, of suggesting that the 80,000 that have been rearranged and have had the taxpayers' money spent on them should be brought back into the land queue again. We might take the figure of 80,000 on an average and an acreage somewhere between 25 and 30. Government policy says they should get 15 acres more, and 15 acres each for 80,000 holdings totals 1.2 million acres. That land cannot be provided and the cost, even if it could be done, would — for additions alone, which is cheaper than allocation and subdivision — probably run to at least £200 million. In short, the only feasible policy is to build up the farms that have already been done and keep them out of the land division problem until you have solved the problem for the farms which have not been touched. Do not keep them waiting on the bread line; give them the capital that will ensure for them a full and adequate family farm income of at least £30 per acre, or equivalent good land. Such a policy can be put into action overnight. The first additions to that capital could be made in the next year or two and subsequent additions could be made depending on progress and on reports from the agricultural instructors, and so on.

That is a feasible policy but the other policy of waving a flag and saying you can bring everyone up to 40-45 acres is just impossible. In this modern age of planning, this is the very antithesis of planning because it is taking action without calculating either the cost or the amount of land required. What we want, in the first instance, is to know what are the Government's land aims. What future do they hold for this country? The only future we can deduce from Government land policy is a future for, at most, 150,000 farmers on the land of Ireland. The Government have not the courage to come out and say that. If they did, the country would very quickly give them the answer. Goldsmith said "Ill fares the land to hastening ills a prey where wealth accumulates and men decay". That is true today. That is what is happening; that is what is envisaged; that is why I put down this amendment in the hope of focussing the attention of the Seanad and the attention of the public on the absurdity of the land policy as announced by the Taoiseach in August, 1962. I am not alone in condemning it. It has been condemned much more forcibly and, on statistical grounds, in the Christus Rex journal.

Of course, it is not popular. Many Senators may have great difficulty in taking the unpopular side and facing up to realities in this. It is not popular to say we will not give some poor fellow another 10 or 15 acres of land. We cannot give what we have not got and that should be the basis of our realism and our planning in the 1960s. At the same time we acknowledge that the man's lot can be improved and his family income can be improved, and at much less expense than this great Government utopia. It can be done simply by following the advice of the Agricultural Institute and every agricultural instructor in the country merely by making additions of capital to farmers who are starved of capital. That is an easy policy.

Since speaking to the Seanad on the last occasion I had occasion to speak to a group of farmers at Hospital, County Limerick. The subject for discussion was the Land Bill. I had not the slightest difficulty in getting them to face up to the realities of the situation. After that discussion they found it was only feasible to build upwards. We cannot build outwards because the Atlantic ocean surrounds us.

Amendment declared lost.

An Leas-Chathaoirleach

Amendments Nos. 6 and 7 may be taken together.

I move amendment No. 6:

In page 5, line 6, before "is" to insert "in the opinion of the Land Commission".

I had hoped that the Minister by this stage would have resolved his difficulty about deciding who were elderly, incapacitated or blind. It is left here to be done by regulation, after consultation between the Minister for Finance and the Minister for Lands. If we are going to leave such an item to be determined by regulation, then I do not see that we have any function whatsoever here. In one Bill after another, we have a succession of delegated powers, regulations and so on.

We accept the Minister's view about the desirability of the section. In other words, if an elderly person wishes to give up his farm, he might be able to make a settlement that would entitle him to do so. We are in full agreement on the principle of this and the passing on of a farm to some person who is prepared to work it or to use it for land settlement in the area. The Land Commission officials are making decisions on this. They are negotiating the terms and so on. Therefore, it seems very reasonable that they should be able to make a decision on who is to come in under this section.

The two words "elderly" and "blind" have very definite meanings. From a legal point of view, surely a blind person must be certified by medical authority. Take the question of an elderly person. I think that would have to be settled in court as referring to a person over 65 years of age. That age is the official State retiring age for civil servants and others. The case of an incapacitated person is something which defies the making of regulations. You just cannot set down how a person is incapacitated, whether it is by blindness, infirmity or something else. You cannot tie that to regulations and it is not desirable that it should be tied in that way.

The idea is to enable the Land Commission officials to use the section where, in their judgment, it should be used. Consequently, the only feasible, logical and reasonable approach is to go the whole hog with it and leave the matter to the discretion of the Land Commission officials.

I support these amendments mainly because I have a very definite objection to regulations. Last year we all saw the regulations which the Minister for Local Government brought in, which certainly were not mentioned. Members of the Oireachtas, when dealing with the measure I have in mind, certainly had no idea the regulations would be so severe. I believe, for that reason, when we are dealing with this problem, which certainly has always been a vexed one, the members of the Seanad should be left in no doubt whatever as to the position. The Minister stated on this section, that it is hoped to be able to secure quite a large amount of land, at present owned by elderly people who are not themselves in a position to utilise it as some might think desirable, from such people. However, if the Minister is really sincere in regard to this particular section the public should not be left in any doubt. I should like to see these people getting a very fair crack of the whip. Also, that there should be no suspicion of some people qualifying under this section and more being excluded. It should not be left to regulation. The Minister should have it written into the Bill so that everyone may see and understand what is there and not years after find out what the Minister really means.

I support this amendment. It seems to me, in the first place, that this applies only to voluntary sales. There is no question of compulsory purchase. The person has to wish to sell himself. He then approaches the Land Commission and somebody has to make up his mind whether he is elderly, incapacitated or blind. The amendment suggests that the Land Commission should be the judge of that and that seems reasonable enough.

Under the Bill it is provided that the Minister can make regulations to define the people who are elderly, incapacitated or blind. It seems to me that would be extraordinarily difficult. Let us take elderly people. We all know people have different capacities. Some people may go on much longer than others. The retiring age is different for those in the university, the legal profession, Civil Service and so on. How can a Minister really, beyond describing the age, say when anybody becomes incapacitated?

When you come to "incapacitated" there again, there is an extraordinary field for disagreement. Incapacitation in some respects may not make it impossible for a person to work his land. It seems to me that to ask any Minister to define such words as "aged", "incapacitated", or "blind" is asking him to do something beyond the power of man. This could be used in such a way as to prevent certain classes of people from exercising their rights to sell under the section if, for any reason, the Minister wished to exclude them. Therefore I think the amendments would improve the Bill. I think we should leave the decision to the Land Commission to decide each case on its circumstances.

I think the movers of the amendments would wind up by having the Land Commission in a legal straitjacket in which their powers under the section would be completely hamstrung. I do not think the question of blindness should be decided by the Lay Commissioners on the reports of the agricultural scientists, engineers, and others, who make up the field staff. Neither should those people be asked to decide the question of incapacitation on a medical basis. Those are matters in my view that can quite properly be left to be settled in the regulations to be prescribed under the Bill.

No doubt the Minister concerned will consider the extent to which the existing machinery in the health and social welfare branches can provide a ready means of identifying certain classes of persons for the purposes of the section, or make the type of certification on medical matters that would be appropriate. It is necessary to maintain a certain amount of elasticity in the scheme in its early stages until the Land Commission get experience of its working under these regulations. Then, if it is found necessary in the light of practice, the Ministerial regulations can be amended accordingly.

I am most anxious to avoid legal straitjackets in this Bill, and to preserve elasticity. Senators who are conversant with rural Ireland will know the vast difference there is even between parts of counties, and the problems to be met in the question of land congestion which vary in many cases from parish to parish. Any Senator who is familiar with the congested areas will know the difficult problems posed by rundale areas where in many instances the Land Commission have been waiting for years and years to get one or two holdings vacant in an area and acquire them, or where some of those concerned cannot be got to agree to a rearrangement scheme.

In those cases the individual may not be 65 years of age. Let us take the case of a man who is 60 years of age and who is in indifferent health. Perhaps, he is not bad enough to qualify for a disability allowance under the county council scheme, but he is sufficiently bad by reason of a combination of age and health to be ineffective as a land user. This inducement would be there for him to accept a pension under these regulations. Senators will appreciate the great help that would be in a case such as I am posing. I think it would be very undesirable in legislation of this type to write in statutory limits which would prescribe that a man of 64 years and 11 months could not come in until he reached his 65th year, and so on.

No doubt the regulations will prescribe certain standards under which the pension provision will operate, and if it is found in practice that these standards do not cover the cases to be met by Land Commission officers in the field, the Minister concerned will be free to amend the regulations to make them workable. After all, surely it is desirable that the section should be a practical working section to enable the job to be done. If these matters are written into the Bill and if something wrong is found it would take another Land Bill to put it right.

We must have the necessary flexibility and I suggest that in starting off a new proposition of this kind it must be done by way of regulation as envisaged here. Therefore, I suggest to Senators that it would be not only undesirable but very unwise to write statutory minima into this section. It may well evolve in practice that some other criteria may have to be added and the regulations may have to be changed.

In dealing with a new provision of this kind we need experience in the field to enable us to find the most desirable regulations to meet the situation. I am sure that as the section itself is welcomed by the House, Senators would not wish it to be an ineffective instrument. I think the section will be a real help to the Land Commission in solving these difficult cases. For all those reasons I suggest it would be unwise to accept rigid specifications as to who should or should not benefit under the regulations.

The Minister completely misunderstood the amendment when he said that it would operate to put a straitjacket on the operation of the section and his proposal for elasticity. That is not true, of course, because we went to the extreme in elasticity when we suggested that the decision should be left to the officers of the Land Commission. Surely nothing could be more elastic than that. The officials could make their decision on each case. The real purpose of the section is to get land away from these persons and transfer it to somebody who is capable of working it. Therefore, if the Land Commission want to acquire a holding, if it will solve a congestion problem in the area, and if the owner is incapacitated in one way or another — whatever that general term may mean — the Land Commission can avail of the section and get him to agree to the transfer of ownership.

Therefore, I cannot see what could be more elastic than that. If the Minister does not accept this amendment, we shall all have to await a tremendous document, over the signature of two Ministers, that will define "incapacitated". I think even Dublin Opinion will be waiting their verdict on that one, especially when we are told that if the officials down the field find that the regulations are not suitable for some case that comes up and to which they want to apply the section they will then get after the two Ministers again and stretch their definition of “incapacitated” to include that person. Surely the whole thing is absurd. I have never seen legislation reduced to such absurd levels by this House that we shall have to leave to regulation what the Minister has assured us will be subject to constant change in the definition of “incapacitated” when the real function is to give the maximum elasticity possible to the Land Commission officials to use this section wherever they get a person who is anxious to avail of the section and where the Land Commission have good use to make of the land if he gives it up.

I cannot think of any more elasticity than we have proposed. I have been absolutely astounded to hear the Minister say that we are the people putting on the straitjacket and that he is the person applying the elasticity. That is just not correct. We have proposed the maximum elasticity possible. The Minister would be very well advised, even at this late stage, to reconsider this question. It is ridiculous that two Ministers of State will have to form a continual vigilance committee on this.

Amendment put and declared lost.
Amendments Nos. 7 and 8 not moved.
Government amendment No. 9:
In page 6, line 16, before "son-in-law" to insert "first cousin,".

This is a simple amendment. On the Committee Stage, I accepted the proposition of, I think, Senator Stanford that the definition of a member of the family in section 45 should include a first cousin. I mentioned then that it would be logical to include a first cousin in section 6 and this is what I now propose.

Amendment agreed to.

I move amendment No. 10:

In page 8, lines 53 and 54, to delete "of holdings which, in the opinion of the Land Commission, are not economic holdings" and substitute "of any holding which, in the written opinion of the Chief Agricultural Officer of the area concerned, is not an economic holding, and is not capable of being made economic under the farm plan proposed by the applicant."

I move this amendment out of genuine concern as to the use that may be made of subsection (2) of section 12 by the Land Commission in prohibiting desirable sub-divisions. As I stated on the Committee Stage, it would be quite a worthwhile national development if some of our larger farmers, in splitting up land between sons, would use additional capital to intensify each part greatly and develop full cooperative working between the sons. But here the question of the sub-division of any holding is to be submitted to the Land Commission for its consent. Subsection (2) of section 12 contains a very positive prohibition by the Land Commission. It states:

The power of the Land Commission to withhold their consent under this section shall be so exercised as to prevent the creation or continuance of holdings which, in the opinion of the Land Commission, are not economic holdings.

We have so many definitions of "holding". We have the viable holding, the economic holding and the family income holding. What is meant here by "economic holding"? The only standard we can take for that and the only one the Land Commission will take in their sub-divisions is the area they regard as an economic holding. Government land policy lays it down that that must be the equivalent of 40-45 acres of good land.

Under this section, the Land Commission are forced to accept that acreage as their measure for what is an economic holding. I do not see that they can take any other measure for an economic holding without going directly against this section. It means that a sub-division into lesser holdings will be prohibited by the section. Now, that is very serious and very wrong. It is tying the whole idea of economic holdings down to an acreage basis. Nobody, indeed, has protested against that more vigorously than the present Minister when he was talking, in a different context, to the Agricultural Science Association more than two years ago. He stated that, in his view, it is as fallacious to generalise that a businessman's future success must be in direct ratio to the frontage or floor space of his shop as it is to lay down the standard unit of land on which any occupant or even the majority is bound to succeed economically. I heartily endorse those words of the Minister.

We have to cut away from this acreage concept altogether and a decision on whether or not the proposed new unit is viable depends on all the local circumstances of the case. It depends on where it is located. It depends on the present level of the working of that land. It depends on the proposals made by the owner for its future development.

Of course, that brings us right into the heart of farm management work, the work that the agricultural instructors are doing day in, day out. It is their function to advise the farmer on how to increase his income. If, under this, a man with 60 acres and two sons decides to divide it between the two sons at 30 acres each then the obvious first step is that the agricultural instructor should be consulted by the farmer as to how each of those units can be intensified. In other words, there must be a dairying base and provision for more intensification as well—perhaps a big unit—and maybe it depends on whether beet-growing quotas are attached, and so on.

It is a decision that can only be made by the man who knows the locality, that is the agricultural instructor. I am not in any way taking from the standing of the inspectors of the Land Commission when I say that it is not their function, because they are primarily concerned with implementing Land Commission policy. They are concerned with the regulations and the intricacies of the Bill, with the negotiations that go with it and the decision that a particular 40 or 45 acres are good land and nothing else. They have not the experience of working under a farm plan. They have not the experience of developing that side of it. That is a special facet of the work of an agricultural graduate, and I am not taking from standing of the Land Commission inspectors when I say that it is not their speciality. I would expect each and every one of them to agree with me on that. That is why I think the Minister should rid the Land Commission of this straitjacket of the term "economic holding" and substitute what I have proposed here, that is, a holding which in the written opinion of the chief agricultural adviser of the area concerned is an economic holding or would be capable of being made one under the farm plan proposed by the applicant. That seems to be very reasonable, and the permission for subdivision given could no doubt be a conditional one, to include that the further steps to make it economic as set down in the plan, like the addition of a large pig unit and so on, should be carried through before the final consent to subdivision should be given.

What I propose here is the effective utilisation of the agricultural advisory services making this decision. I propose that it should be from the chief agricultural officer because he would act on the report of the field man, the local assistant agricultural adviser, who knows the local position, but the authority should come from the chief agricultural adviser. I commend the amendment to the Minister and to the House.

I think this is a most reasonable amendment. Most Senators will agree that we should not endeavour to set up duplicated services. Within every county in Ireland today we have an extensive and very fine organisation of agricultural advisory services under the county committees of agriculture and directly under the Department of Agriculture with the parish agents. I feel that if the Land Commission are allowed to set up a branch and put men on the road to determine whether or not a farm or farm unit is an economic or viable unit, this is a task which could best be done by the men who are on the job for years back and who know the land and the composition of the soil and the other relevant data in every part of every county in the country. These are the people who are best qualified to do so. We have in every county quite a number of graduates not only in agriculture but in horticultural science as well. These people are in the field every day of the week and are doing quite a good job. I feel that we should encourage co-operation between the various services. It would be much more economic on the country as a whole and much more beneficial if these people who are actively engaged in the advisory services and whose job it is to prepare farm plans from the farmers were asked to determine whether or not a farm is an economic holding or whether or not a scientific formula can make it into one.

As well as that, in recent years all the new graduates in agricultural science are qualified also in farm management. This is a new departure for only three or four years and it is a very welcome one. With this added qualification, our young advisers in the field now are surely in a better position to assess the possibilities or otherwise of a farm. For these reasons I would strongly urge the Minister to accept this amendment, which in my opinion calls for active co-operation between two very important services in dealing with Irish agriculture today.

This amendment brings me back to the argument we had on Committee Stage on whether we should make the CAO a land reform judge in his own area in effect. Senators should ask themselves if they should let a function formerly reserved to the Land Commission be handed over now to a single local official, be he qualified or otherwise, working under the committee of agriculture to decide. If the owner of an existing substandard unit can put a good plan forward that will produce a good family income from the small acreage, by all means let him continue to do so. This is not the type of land we have been looking for permission to subdivide. If someone puts forward a plan for a new fragmentation based on an assumed future capacity, I would not be prepared to give him carte blanche by a decision which, except by consent, would be irreversible once it had been taken.

What this particular subsection of section 12 states is what has been happening in respect of 80 per cent of land down through the years, because it is practically invariable where the Land Commission refuses consent to subdivision that it is done because of the creation of an uneconomic unit and the individual who is doing it or whoever is coming along after him will be put back on the list of the Land Commission to be relieved. I have pointed out on the other Stages of this Bill that it would be an exercise in futility if the State which is expending a lot of money to relieve congestion and uneconomic units and fragmentation on the one hand should go ahead and allow it in a different way on the other.

I cannot for the life of me understand the proposal that the chief agricultural officer should be involved, because it appears to me from the wording of the amendment that it is only in the case of the refusal of consent, not a granting of consent, that he would come in. I should like to see the position of a chief agricultural adviser throughout the country concerned with his local committee of agriculture who would be saddled with the distasteful job of forbidding the subdivision of a holding because a man was urgently seeking it because of his family or financial circumstances on the basis that by adopting Senator Quinlan's plan — by going in or out I do not know which — he could in years to come turn this holding into a gold mine. The function of the CAO under this amendment, if accepted, would be that he would stop the Land Commission consenting in certain cases. If a farm plan had to be produced and examined by the CAO for the purpose of indicating to the Land Commission and the individual concerned who wants to subdivide his holding that he should forget about it but that it could be made economic under some new plan, I should like to know what that individual would think about it or where he would find himself.

The simple provision in the Bill is that the Land Commission will exercise the right they have been exercising to stop fragmentation except it is written into the law. They cannot exercise such right arbitrarily. It was always implicit, I think, and would be so held by the courts, that the Land Commission could not unreasonably withhold their consent to a subdivision if it did not unduly fragment. The difficult cases the Land Commission come up against always involve fragmentation and the danger of an uneconomic unit being left there.

Subsection (2) says:

The power of the Land Commission to withhold their consent under this section shall be so exercised as to prevent the creation or continuance of holdings which, in the opinion of the Land Commission, are not economic holdings.

The Land Commission have always exercised this function. They are the practical people to do it and they do exercise a discretion. To my own knowledge on occasions they do allow fragmentation which a strict judge would say they should not, but because of special family circumstances they do on occasion allow subdivision.

The effect of this amendment would be, as I have said, to bring in, by this extraordinary procedure somebody, who is not concerned with land structure at all, to produce some kind of plan that would be used by the Land Commission to prohibit the subdivision of land. Outside its merits or demerits it would be unworkable and impracticable and would not be accepted by anybody.

I am disappointed at the Minister's approach. It seems to me that co-ordination between Departments, and joint working, is impossible, that the CAO cannot fulfil a very simple function which he is fulfilling every day of the week with banks, with the local agricultural instructor, as to the condition on the farm and the proposed scheme for which the money is required. That is part of routine work by a local agricultural adviser and there is nothing impracticable in the present suggestion. In fact, a subdivision should not even start unless this approach is adopted. A farmer wishing to divide his farm of 60 acres into two would obviously consult the local agricultural adviser as to what new buildings would be required, the house needed on the second unit, the level of income, intensification, and so on that would be required to make a success of the project and where the money should be got. He should already have that advice and, consequently, there should be no difficulty whatsoever in the Land Commission producing a certificate in accordance with the amendment.

The Land Commission have no farm economics department. Farm economics in this country are primarily the concern of the Agricultural Institute and, at local level, the concern of the resident agricultural adviser. In order to carry out the details of this subsection, the Land Commission should have their own farm economics department so that they would be able to assess whether the holding concerned was an economic holding or could be made into an economic holding. The work of the Land Commission officials is of a totally different character and only implements Government land policy which lays down a specific acreage of 40-45 or its equivalent of arable land.

The only measure of judgment required is to decide what portion of the farm is to be classed as arable and what is its equivalent in arable terms. There is no mechanism whereby 30 acres of reasonably good land in some locality can be certified as an economic holding. This cannot be under this subsection because the only function the Land Commission have is to judge the size of an economic holding. That is what they are using as Government policy for such holdings. Consequently, it means that in future no sub-division under 40-45 acres will be accepted. If the Land Commission agree to a subdivision less than that acreage of arable land, they will be acting in contravention of subsection (2) of this section.

This highlights the fact that the criticisms of Most Rev. Doctor Lucey on the Land Commission's reluctance to agree to the subdivision of family farms are well justified. In the past at least the standard used was 30 acres. Now, when this Bill becomes law, the standard jumps to 40-45 acres. In short, the Land Bill sets out to complete the work Cromwell began when he said to the small farmers: "To hell or to Connacht." The cry now is: "To Connacht or to Birmingham." That is all that is set out here and we are heading for an Ireland populated with 150,000 farmers. That is the goal of Government' land policy and when that comes, there will not be much of Ireland left—150,000 farms. Even the Pampas of the Argentine will look over-populated.

It would be better than 150,000 professors.

Question put: "That the words proposed to be deleted, stand."
The Seanad divided: Tá, 25; Níl, 11.

  • Boland, Gerald.
  • Brady, Seán.
  • Brennan, John J.
  • Browne, Seán.
  • Cole, John C.
  • Costelloe, John.
  • Donegan, Bartholomew.
  • Eachthéirn, Cáit Uí.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Flanagan, Thomas P.
  • Hayes, Seán.
  • Hogan, Daniel.
  • Killilea, Mark.
  • McGlinchey, Bernard.
  • Mooney, Joseph M.
  • Nash, John Joseph.
  • Nolan, Thomas.
  • Ó Ciosáin, Éamon.
  • Ó Donnabháin, Seán.
  • Ó Maoláin, Tomás.
  • O'Reilly, Patrick.
  • Ruane, Thomas.
  • Sheldon, William A.W.
  • Yeats, Michael.

Níl

  • Butler, John.
  • Carton, Victor.
  • Fitzpatrick, Thomas J.
  • Hayes, Michael.
  • L'Estrange, Gerald.
  • McDonald, Charles.
  • Mannion, John.
  • O'Brien, George.
  • Prendergast, Micheál A.
  • Quinlan, Patrick M.
  • Ross, J.N.
Tellers: Tá: Senators Farrell and Ó Donnabháin; Níl: Senators Quinlan and McDonald.
Amendment declared lost.

I move amendment No. 11:

In page 8, between lines 54 and 55 to insert the following:

( ) Where an application to let, sublet or subdivide an agricultural holding has been made in writing to the Land Commission and the consent of the Land Commission has not been given or refused within one month of the receipt by the Land Commission of such notice of application, such consent shall be deemed to have been given unconditionally on the last day of that period, unless prior to that day it shall have been certified by one of the Lay Commissioners that there are special grounds for delay in dealing with such application and the nature of such grounds is stated in such certificate.

Section 12 is the subsection which prohibits letting, subletting or subdivision of certain holdings without the consent of the Land Commission. The purpose of the new subsection is to provide that proper notice be given to the person who applies for subdivision or subletting by the Land Commission that the consent will be given or, if the consent is to be refused, that the consent will, in fact, be refused.

The object of the new subsection is to establish a principle that, while consent may be sought by the Land Commission, there is a time in which the Land Commission must say whether they will give this consent or not. That is somewhat similar to a proposed new subsection which we put down on Committee Stage. It differs on two counts. In our proposed Committee Stage amendment we provided that the consent of the Land Commission should be given within two months. In his reply at that stage the Minister told us that in the great majority of cases the consent of the Land Commission was given within two weeks. Therefore, we amended the period from two months to one month.

The Minister also felt at that stage that it was undesirable to put in the subsection, I think basically because there had been such an improvement in Land Commission procedure over the past few years that it was no longer necessary. He cited to us an undertaking which had been given by the Land Commission to the Incorporated Law Society to deal swiftly with applications, and said that undertaking has been honoured. I have no doubt that that is so, but we put down this amendment because a principle is involved, a principle which goes beyond the undertaking by the Land Commission. We want to put into the Bill an obligation upon the Land Commission to give these rulings within one month, and to try to meet the Minister we added to the proposed amendment on the Committee Stage the words "unless prior to that day it shall have been certified by one of the Lay Commissioners that there are special grounds for delay in dealing with such application and the nature of such grounds is stated in such certificate".

As I say, a principle is involved here. It is the same principle as has been observed in the Local Government (Planning and Development) Act, 1963. The principle is that if consent is sought, some ruling must be given within some stated time or consent is deemed to be given. If consent is not given, or if the Land Commission do not intend to give consent, they would have one month under this amendment to state the grounds on which they did not intend to give consent. This seems to us, on what the Minister said, to be fairly reasonable. We want to write into the Bill what is now the practice, and we want to preserve it for all the time in which the Bill will be an Act. The significance lies in the requirement on the Land Commission to give a ruling within one month.

I support the amendment for the reasons given by Senator Ross. The amendment is slightly changed from what it was on Committee Stage for reasons which Senator Ross explained. The purpose of the amendment is to try to keep alive the rights of people to deal with their own land. One of our objects in the Land Acts has been free sale of land. If a person must get permission from the Land Commission any time he wishes to let, sublet or subdivide, he is no longer master of his own land. That is why he should not be kept waiting until they are prepared to give a decision. I accept the Minister's assurance that, as a general rule, decisions are given quite unequivocally inside a fortnight, but the amendment will ensure that owners of land will not be unreasonably prevented from exercising their rights. Therefore, I second the amendment.

I strongly support this amendment. It has been said already that a great danger in this Land Bill lies in the fact that there are good sections in it, and certain praiseworthy intentions behind it, but, in an effort to attain those desirable objects, there is the real danger that we are going too far. There is the real danger that we are inclined to overlook the rights of others. The relief of congestion is a desirable object, and a very desirable object, but we should not overlook the fact that farmers and owners of land have some rights which should not, and cannot, be taken from them.

In putting down this amendment, Senator Ross is following a well-established precedent, a precedent which was established, I think, by the Town and Regional Planning Acts. One section in one of those Acts laid down that if an application were made to a local authority for permission to build, and if the local authority did not give a decision within two months, either granting or refusing the application, the application was deemed to have been granted. That made the local authorities sit up and get on with the job.

In piloting this Bill through the House, and through the Dáil, the Minister admitted that the Land Commission are tied up in red tape. As a matter of fact, he based some of the arguments to substantiate some of the most objectionable sections of the Bill on the fact that he wants to get rid of red tape in order to cut delays. As the law will stand under this Bill if the section goes through unamended, a person may apply to the Land Commission for consent to let, sublet or subdivide a holding, and no decision may be given on that application for six or 12 months, and nothing can be done about it. People who have experience of dealing with the Land Commission know it is not unheard of for queries put to the Land Commission to be left unanswered for a considerable time. It might be months before consent is obtained. It may be a case in which an inspector has to be sent down to look at the farm and get a report on it.

At any rate, it is unreasonable that a man who wants to sell a piece of his holding should be kept waiting for six to 12 months, or for such time as the Land Commission think fit and that, during that time, his farm should be frozen and he cannot do anything with it. I think this is a perfectly reasonable amendment. It seeks to say to the Land Commission: "If you take unto yourselves the right to tell me whether or not I can sublet my farm, you will have to give a decision within a specified time". The time specified here is one month which should be ample for the Land Commission to make up their mind on a subject like this especially when they have their inspectors here, there and all over the place.

If one month is considered too short a time, why should the Minister not go back to the time stipulated in the Town and Regional Planning Act which is two months? However, let there be some time limit and let the farmers and landowners know where they stand as of right, not as of sufferance or on an ex gratia basis that they may be told by the Land Commission: “We shall give you an answer on that just as soon as we can come round to it.”

I do not accept an assurance from the Minister that the Land Commission will act reasonably. If we accept that everybody will do the reasonable thing, there would be no necessity for many of the sections which the Minister has put into this Bill. He has put these sections into the Bill on the basis that people are inclined to be unreasonable. State bodies can be unreasonable and Departments of State can very easily convince themselves that the putting into operation of their particular policy is all that matters and all that counts and that that is paramount and should take precedence over the rights of everybody else. I should think that if the Minister had given this amendment serious consideration he would have come to the conclusion that it is one which he cannot reasonably resist.

I have given some thought to this matter since we had the discussion here on Committee. Lest I forget it, let me point out that there is no analogy at all between planning authorities and the Minister for Lands under this Bill. Planning authorities are not subject to or under Dáil Éireann: the Minister for Lands is. Therefore, there is really no analogy between certain safeguards by way of time that might be very necessary in the case of what I would call, as far as the Legislature is concerned, a body circulating in outer space and something to be done under a Land Act because the Minister for Lands is always there to be made amenable by way of Question or our democratic procedures in the event of some extraordinary delay or allegation that the Land Commission are not doing one thing or other in this particular connection.

Surely the county manager is answerable to the elected representatives before whom he must appear once a month?

There is a provision quoted here about the two months. He has not, of course. The position under his function would certainly be a reserved one, as far as I know, which has nothing to do with the local authority. Here, outside the fact that the Minister for Lands is answerable to the Dáil, as some Senators know well, if there were some fantastic or unreasonable delay, they would very quickly bring the Land Commission to book for failure to give their consent or unreasonably withholding it in the case of the land and we should have the very same type of legal procedure as we had in respect of the local authority to which reference was made here, though we had a very large legal cause célèbre to do what they should have done.

I pointed out the actual position on the last stage of this Bill. The figures cut this matter down to size. I gave the yearly average in respect of the subdivisions for the past 10 years, which were as follows. The number of yearly applications over the past 10 years, on average, was 2,903, the number sanctioned was 2,840 and the number refused 63. For the year 1963/64, there were 4,121 applications, sanctioned 4,072, refused 49. Therefore, in the case of refusals, we had what we could call a reasonable refusal of only 1 per cent of cases for subdivision.

For lettings, the average over the past 10-year period was as follows. The total for the 10 years is 824 applications, 821 sanctions and 3 refusals. In the past year there were something like 92 applications and the 92 were sanctioned.

I pointed out that in the actual experience of the Land Commission over the past number of years, consent came in the vast majority of cases inside a fortnight. There has been no complaint about delay in this field as far as the Land Commission is concerned or that I can recollect receiving, particularly in the past two or three years.

As Senators know, consents are given on occasions, subject to certain conditions. I think I referred on the last stage of this Bill to the difficulties that can arise and sometimes do arise because of the necessity to apportion the annuity. Over the past weekend, I personally came across a case in which a sale was agreed to this farm in two portions and the parties were falling out on the basis of apportioning the annuity between these two portions in accordance with the purchase money— in other words, to relate the apportionment of the annuity to the amount of purchase money paid by each of the two purchasers. On one of these portions there were buildings, whereas on the other there were none. The only way in which that contract could be completed was to make it a subject of the contract that the apportionment of the annuity would be left to the Land Commission. In a case of that kind, it will be necessary for a Land Commission official, when he is available, to go on the ground and to work out what would be fair to put on each of these purchasers and, of course, another condition of the purchase would be that one of these portions would be consolidated with the holding of the man who bought it.

You have these cases, which must take time. They are the odd cases. The normal, straightforward cases or the question of subdivision for the purpose of building sites and so on, go through automatically. If the officials in the office have sufficient information to enable them to give consent, there is no delay and therefore no demand, I would suggest to Senators, for writing in this subsection.

I did point out, too, the danger of putting in a subsection like this that would not serve the purpose Senators have in mind. If you have a rigid rule that all consent must be given within one month and if, for any reason, the officials could not get the necessary information or otherwise, well, to keep this right the thing to do would simply be to refuse the consent and therefore to keep themselves right under the law — and once the consent was refused it would make it doubly difficult for such an applicant to get that decision reversed.

There is no necessity, as suggested by one of the Senators, for the House to rely on any assurance of mine in this field. I have told the House the experience of the Land Commission in this matter. I have pointed out that in recent years there has been no complaint from the legal profession or anybody else that I know of about undue delay in the Land Commission in dealing with these applications. I am pointing out the danger of writing in such a rigid provision as this. I am suggesting to those moving this amendment that if there were a fantastic delay of 6 or 8 months, as suggested here, though I have never heard of such a case in recent times, there is a legal remedy there open to the individual who is being frustrated by this extraordinary delay of the Land Commission. In actual practice and experience, I cannot visualise how such a delay can possibly occur unless there were some extraordinary combination of circumstances to make it one of the most unusual cases the Land Commission have ever come across. There is no complaint at the moment about the operation of this consent and I do not see any reason why, for the reasons I have stated, I should accept this amendment. I would suggest to Senators that they should withdraw it.

Business suspended at 6.05 p.m. and resumed at 7.30 p.m.

This amendment would on the face of it commend itself, and I am not terribly impressed by the Minister's case against it. I must, however, confess that I do not think it would work in practice. I think that Senator Ross and Senator Fitzpatrick who supported him on it underestimate the ingenuity of civil servants when it comes to this type of condition. I can well imagine the production of a form listing all the various reasons why there should be delay and all that the Land Commission would have to do would be to tick off what appeared to be the appropriate one and send it off. This amendment will produce nothing material. The Minister did suggest what I think is a most shocking way around it, and that is that in despair of doing it in the stated time the officials would just refuse to sign. I should not like to think that they would go as far as that, but they could validly have a form with a number of specified reasons typed out with little squares in which you could put the appropriate mark to indicate, and it might even be in Irish so that the recipient would be still in reasonable doubt about why the application had been refused or delayed.

I have sympathy with the idea behind it but I do not think it would work in practice. I do not think it is a good thing to put into legislation something which, in effect, is inoperable and might even add to delays. For instance if you specified a month or two months, or whatever the time may be, if the official dealing with it realises that it will take a day more than that he is not going to send out the form, but says that there is a delay caused by such and such a reason. It is much better to rely on everybody's commonsense and, as the Minister said, in fact there have not been undue delays, so that on the one hand I cannot see that red tape is going to be circumvented by this amendment if red tape is determined on in the Department and the Land Commission, which I very much doubt, and on the other hand it might very well have the effect of causing delays which would otherwise not have happened. Something which might very well take place in 32 days would be put off for another month because it could not be done within 30 days.

I want just to deal with the points the Minister raised in objecting to my amendment. There are three points. First, as he said on the Committee Stage, we must cut down the question of refusals by the Land Commission and also bring the delays to size, and he showed us that over the years there has been an average of only about one per cent of applications which were refused. I do not think that this is the point of this amendment at all. The point is to try to prevent delays. It is not to prevent a legitimate refusal, but purely to prevent delay by the Land Commission in dealing with cases. Granted that at the present time there is virtually no delay or certainly very little delay, the reason why we want to put this amendment into the Bill is to provide for the future when the administration may not be the same.

The Minister in a second point said that there was no analogy between a planning authority giving consent within two months to a man putting up a building and a consent given by the Land Commission after a period of two months from the application. I think that there is an analogy, because while it may be true that the Minister for Lands is answerable to the Dáil the principle is very much the same. The principle is that consent should be given within a certain time and that the application for consent should not lie out permanently without being dealt with. There should be a statutory requirement that an application is dealt with within a certain reasonable time. It may be said that a Deputy may bring a matter of delay before the Dáil, but surely it is not a desirable procedure that something of this nature should be brought before the Dáil. It is far better that the procedure should be left here and that the Land Commission should make up their mind in a stated time. We are not particular about the one month period. On principle, we would be perfectly prepared to agree to two months.

The third point made by the Minister was that if our amendment were accepted there would be a temptation for the Land Commission to refuse consent automatically, if there was going to be any danger of delay. I think that point is answered by the addition to the amendment on Report Stage, which provides that:

unless prior to that day it shall have been certified by one of the Lay Commissioners that there are special grounds for delay in dealing with such application and the nature of such grounds is stated in such certificate.

We wished to have this amendment put in on principle and not by way of any complaint against the Land Commission at the present time. It is on the principle that an application to the Land Commission should be dealt with within a reasonably stated time. For that reason we feel we have no option but to press the amendment.

Might I ask the Senator before he concludes whether he thought of the position of the solicitor (1) who is negligent, who does not fill the form properly and does not give the necessary information vital for the Land Commission consent to be given, and (2) who is cute and leaves out something vital, lets the month pass and achieves the consent automatically? He might deliberately not comply and not give particulars of the holding of somebody buying portion of it, or withhold any other vital information that must be given in relation to subdivision. Can the Senator not appreciate that the legal man either by design or otherwise could obtain the consent of the Land Commission by default?

There is a decision of the High Court on that point under the Town Planning Act, where it was held that an application must be an application in order and where a defective application was submitted it was treated as not being an application.

I should like to see that argued on this.

Perhaps I could deal with the Minister's point. If a solicitor delays, or if he submits an application in which there is not sufficient evidence to satisfy the Land Commission, under our additional sentence here the Land Commission have the right to state the special grounds for their certificate and this would be a reasonable course for the formal certificate to set out what is further required.

Does the Senator wish to press the amendment?

Amendment put.
The Seanad divided: Tá, 11; Níl, 24.

  • Butler, John.
  • Crowley, Patrick.
  • Davidson, Mary F.
  • Fitzpatrick, Thomas J.
  • Jessop, W.J.E.
  • Lindsay, Patrick J.
  • McDonald, Charles.
  • Mannion, John.
  • Quinlan, Patrick M.
  • Ross, J.N.
  • Stanford, William B.

Níl

  • Boland, Gerald.
  • Brady, Seán.
  • Brennan, John J.
  • Browne, Seán.
  • Cole, John C.
  • Costelloe, John.
  • Donegan, Bartholomew.
  • Eachthéirn, Cáit Uí.
  • Farrell, Joseph.
  • Flanagan, Thomas P.
  • Hayes, Seán.
  • Hogan, Daniel.
  • Killilea, Mark.
  • McGlinchey, Bernard.
  • Mooney, Joseph M.
  • Nash, John Joseph.
  • Nolan, Thomas.
  • Ó Ciosáin, Éamon.
  • Ó Donnabháin, Seán.
  • O'Reilly, Patrick.
  • Ryan, Eoin.
  • Ryan, Patrick W.
  • Sheldon, William A.W.
  • Yeats, Michael.
Tellers: Tá: Senators Ross and Stanford; Níl: Senators Farrell and Ó Donnabháin.
Amendment declared lost.

I move amendment No. 12:

In page 9, line 13, before ", by" to insert "or portion thereof", and in line 15, to add "or building purposes" after "development".

Subsection 4 states:

Subsection (1) of this section shall not apply to any holding which is not subject to purchase annuity or other payment payable to the Land Commission, and either—

(a) the whole of such holding is situate within the boundary of any county borough, borough, urban district or town, or

(b) the Land Commission certify under their common seal that in their opinion such holding, by reason of its proximity to a county borough, borough, urban district or town, is required for urban development.

We are providing in this amendment for two eventualities: firstly, that the Land Commission certify under their common seal that in their opinion "holding" shall also apply to portion of a person's holding. We have put in the words "or portion thereof after such holding" and we have also adopted a proposal of Senator O'Brien on Committee Stage that this should be a requirement for urban development or building purposes. We feel that "urban development" does not go really far enough. We believe there may be a case where only portion of a large holding is required for the erection of, say, six houses. The Minister, when dealing with this on Committee Stage, envisaged, I think, large scale development but we feel the provision should be wider and should apply to both the holding and portion of the holding where such is required for urban development or building purposes in general.

I second the amendment.

Regarding the first part of the amendment, I would refer the Senator to the definition section of the Bill. Section 1 says:

Every reference to a holding or land shall be construed as including a reference to part or parts of a holding or land and to a parcel of land in whole or in part and to an incorporeal hereditament in whole or in part.

I think that covers what the Senator has in mind so far as the first leg of the amendment is concerned.

It do not see the necessity for the remaining portion. I have considered it, and I have been unable to see any effective value in it. I have a feeling it might turn out to be restrictive if the words "or building purposes" were added. That may accidentally be the meaning given to "development" in some other legislation or some other Act. At all events, I feel the expression used is wide enough for our purposes, and I do not see any practical use in adding "or building purposes". As I say, I feel it might well be restrictive and I therefore prefer the wording of the section as it stands. It suits our purposes better. While I have considered the implication of the amendment that is my own view, and that is the advice I have received.

I should like to thank the Minister for drawing our attention to the definition in subsection (1). I cannot see how the latter part of the amendment would be restrictive, but I do not intend to press it.

Amendment, by leave, withdrawn.

It is suggested that amendments Nos. 13 and 14 be taken together.

Government amendment No. 13:
In page 9, lines 22 and 23, after "acquisition" to add the following: "; provided that, in any case where the title has been or is acquired (whether before or after the passing of this Act) by or through possession wholly antecedent to the passing of this Act, such consent shall not be required."

Senator Fitzpatrick made a point on Committee Stage about the possibility of a slight injustice being done to persons who obtain title to land by possession before the Bill is passed and who would thereafter have to obtain the consent of the Land Commission before they could have such title registered. If such a position arises the official amendment will exempt such a person provided the whole period of possession on which he bases his claim is antecedent to the act. Therefore, in view of what was said on Committee Stage, I am moving this amendment.

I am obliged to the Minister for introducing amendment No. 13 because I agree that it covers the point raised by me on Committee Stage. Subsection (6) of section 12 as it stands would, in effect, change the law retrospectively. I think the House would agree that would be a most undesirable thing to do. As the Bill stands, a person who had acquired title to land before the coming into operation of the Act would have found it necessary to obtain the consent of the Land Commission. I am very glad the Minister agrees that would be an undesirable state of affairs.

Amendment agreed to.
Amendment No. 14 not moved.
Government amendment No. 15:
In page 10, line 20, after "necessary" to add the following:
"and shall, as soon as may be after the expiry of the appropriate period or receipt by him of notification from the Land Commission of the termination of the proceedings referred to in this section, cancel such entries.".

This is a drafting point. In order to give landowners the assurance that the restrictions imposed by the section will not affect them for any longer time than is strictly necessary, this amendment furnishes positive instructions for the Registrar of Titles about the removal of restrictive entries on the relevant folios. While it is not strictly necessary, I thought it better to write this in.

Amendment agreed to.

I move amendment No. 16:

In page 10, between lines 20 and 21 to insert the following:

"( ) This section shall not apply to the transfer by an owner of land to the child of that owner."

Section 13 is the section which freezes all dealings for holdings for land where proceedings have been commenced by the publication of a provisional list under subsection (2) of section 40 of the Land Act, 1923, or where a holding has been inspected pursuant to subsection (6) of section 40 of the Land Act, 1923, which means that after an inspection has taken place, or after the publication of a provisional list, no dealings can take place for a period of three months.

The purpose of the amendment is to try to ensure that this prohibition shall not apply to a transfer by the owner of a farm to his child. The Minister tells us the object of the section is to make it easier and more expeditious to acquire land for redistribution. In the case of a farmer who is to be divested of his farm, if he has a child who is prepared to take over the farm and work it, the child should be given the opportunity of doing so. My argument on this case is as simple as that. There is no need to elaborate on it at any great length.

You can have the case of the farmer who is holding on to his farm and not working it to the best advantage. He is not prepared to give the reins to his son and he will hold on to the farm until his dying day. Perhaps the only thing that will persuade him to part with the holding is the threat of having it taken over by the Land Commission. He then sees reason and blood becomes thicker than water in his desire to keep the farm in the family and perpetuate his name. He will almost certainly offer to transfer the farm to his son if he has a son who is prepared to take it over and work it.

My plea is that that son should be given the opportunity of taking over the farm and working it. If the son proves to be a bad farmer, or does not take up residence on the farm, or does not work it to the reasonable satisfaction of the Land Commission, the Land Commission will not be prejudiced. Admittedly, they may be prejudiced in point of time. They may have lost a few months, or even a year, but is that unreasonable in the case of a father wishing to pass on his farm to his son? I do not think it is. If a farmer who is unreasonable and stubborn is forced in this way to transfer the farm to his son and is prepared to do so even under this compulsion, the son should be given the opportunity of proving himself.

I think it is desirable in Ireland that farms should be kept in families. Where there is a certain family pride in owning farms and continuing to live in the same locality that should be encouraged. I do not think the Minister made a case on Committee Stage that this was jumping the legal gun. He gave the case of a father transferring his farm to a son in New Zealand, the son in New Zealand selling the farm to someone in America, and the person in America appointing someone else to operate it at home. I think that is a very far-fetched case.

As I said on the Committee Stage — I do not know whether the Minister has looked into it in the meantime — it should not be impossible to devise a section which would cover that and protect only a genuine transfer from the father-owner to the son who is prepared to reside on the farm and to work it. In the process of land acquisition for distribution, the case I have mentioned will not very often happen, and I concede that, but it will happen sufficiently often to make it necessary to put this safeguarding subsection into the section.

I was reading the debates before I stood up. Replying to me on Committee, with all respect to him, the Minister ran all over the place and dealt not with the net case I am making here. I am making a case not for the farmer who wants to sell his farm to anybody to avoid acquisition, not for the farmer who wants to transfer his farm even to his collateral nephews or relations of one degree or another.

I am making the point as net as I possibly can and covering only the one instance, namely, that of a farmer who wishes, after having been brought to reason, to transfer his farm to his own child. That is the case I should like the Minister to deal with and not any other case of collateral relations or non-resident children or anything else — the transfer by the owner-father to a child who is prepared to come and take up residence there and work the farm within a specified time.

I repeat that I would not be satisfied with the statement that in such a case the Land Commission will act reasonably. That is not enough. I want this for the owner, who has a son or a daughter, as a right. In our anxiety to relieve congestion and to provide economic holdings, we should not lose sight completely of the rights of owners and of the rights of fathers of families.

I wish to second the amendment moved by Senator Fitzpatrick which is very reasonable. It simply recognises the right of a father to pass on his farm to his son even though the father might have been remiss in his farm practice at some stage. The qualifying period is just one year. There is a grave discrepancy between what the Minister states and what is undoubtedly Land Commission practice at present that the owner must have a long history of bad land usage before a notice is served on him. The Bill limits this long history of bad land usage to a qualifying period which is defined as a period of one year. Any father can get lax in this respect. All he needs to do is to let his land for a year or for two years and then this notice can be slapped on him and he cannot transfer to his son.

I should like to see added to the section that it shall not apply to the transfer by an owner of the land to the child of that owner where the child is prepared to take over and work the farm and undertakes not to sell it for at least five years. In other words, there can then be no jiggery-pokery. If he cannot sell it for a fixed period of five years it means that if he does not make a significant improvement in the first few years of that period the Land Commission can come back and take the farm from the son. Therefore, it is only right and proper that this clause should be inserted.

Furthermore, it could add considerably in the transfer of property from father to son because we know the reluctance of many of the old farmers to transfer their property but yet most of them have a wholly unjustified fear of the Land Commission coming in. Their fear is almost as if the Land Commission were to seize their property without payment. That fear is nevertheless there, and it is a fear that would cause the old father to transfer the property to his son at the first sign of such a notice; consequently, it should have a very positive effect in ensuring a transfer at a reasonable time to his son. At the same time, it could protect what is undoubtedly the right of our people to inherit the family farm. That is what is guaranteed here.

We cannot rely on the good will of the Land Commission or on their present practice or anything else to continue into the future and that a father could effect such a transfer merely by the sufferance of the Land Commission. It should be there as his right. There might arise a case where the Land Commission felt that they had their hands on the farm and were not going to leave it go but would stand on the strict letter of the law as given in this Bill. Consequently, I do not see any reason why the Minister would not accept this amendment suitably re-worded to guard against any real abuses that might arise.

The effect of this amendment would be to negative the whole spirit of the Bill. We have had many farms acquired by the Land Commission since 1923. At all times since then once a farm appeared on the revised list the owner was prohibited from selling or disposing of it. This Bill goes a slight step further in that now a man is prohibited from selling his land from the time that there is a notice of inspection served on him. The procedure under the law is as follows. A farm has been badly run, so badly run that the attention of the Land Commission has been drawn to it. They then serve on the owner of the farm a notice of inspection. When they come down to inspect the lands at that stage they have no powers whatsoever to acquire the land unless they can establish that for at least twelve months prior to the inspection the farm has been neglected or abused. It then takes usually a further four to six months before that farm, assuming it has been abused, is put on the revised list. The Land Commission then may have acquired other farms in the locality with a view to rearranging a subdivision scheme. These farms dovetail into each other. The whole scheme has to be one entity. Any one of those farmers at that stage can say: "I propose to make my farm over to my son" and the whole scheme falls through. That farm cannot be acquired.

The amendment as we have it before us is that this section shall not apply to the transfer by an owner of land to a child of the owner. That is the amendment we are actually considering, not whether the son proposes to use the land well, not whether he proposes to live on the lands for five years, not whether the son even is living in this country, not whether even it is a son — it may be a daughter who has no interest whatsoever in the land. The effect of the amendment would be to make it practicably impossible to acquire the land of any married man because he could even adopt a child and the legal rights of an adopted child are the same as those of a child of his own marriage.

Let us assume that this amendment were carried. As I say, the whole scheme can be upset. The son gets the land. He may put on a spurt, assuming that he wishes to work the land at all. He may put on that spurt for six months. This is land, perhaps, where corn has been in and no grass has been set down after it. For the first time he puts down grass seed. You have to wait a minimum of twelve months before you can serve a further notice of inspection, because the Land Commission must adopt the whole procedure all over again and go back to the lands and inspect them a second time, a period certainly longer of necessity than twelve months if the farm was transferred to the son.

Then let us assume that the son does not even put on a spurt and the place has to be put on the revised list again. There is nothing in the world now to prevent that son transferring to the grandson if he has a son of his own and then we are back where we started, playing ring-a-ring-a-roses. The effect of the amendment, if accepted, would, I respectfully submit, make the position of the Land Commission absolutely impossible. Either as a House of legislature we approve of the Land Commission and their acquisition of land or not. If we do not approve of them the appropriate thing to do is to introduce a Bill to abolish the Land Commission. If we do approve, and I think we do, then surely we should allow them to carry out their functions and not frustrate them in every possible way.

I think that this is a most reasonable amendment. I feel that Senator Nash is really advocating a completely new departure in modern Irish legislation. I should like to ask him to point out the parallel where the State is trying to force industrialists to work their businesses to a given or predetermined standard. The farmer must surely have a right to carry out whatever kind of farming he desires himself. Many farmers set their land or, perhaps, can be described as not utilising it to perhaps a scientific standard for a number of valid reasons. A man can set his land for a year because of personal disability, but I see no reason why he should be penalised for doing so. Surely he must have some rights left. Surely a farmer who owns his land should be allowed to set it or sell it. There are many cases throughout the country of a farmer who finds himself getting old and endeavours to hold on to his land. If in the heel of the hunt he decides to transfer it to his son even at a late hour, I still think he should be allowed to do so.

Senator Nash mentioned that if this amendment is allowed to go through it will hold up Land Commission proceedings for another year. I have not as yet seen any Land Commission proceedings being finalised within any one calender year. It certainly has not happened in County Meath. I am not saying that the Land Commission are not able to get through all their findings within a year, but that a year does not really matter a lot to them.

He also asked what is to stop a farmer transferring his land to his grandson. Surely there is not going to be a generation every year. There will have to be an interval as you will not get more than four in line anywhere. There may be a possibility that a man has a grandson but I doubt if he will have a great grandson living to transfer to after the fourth or fifth year. That type of argument is not really valid. I believe that the fact that Senators are objecting to this particular amendment shows clearly that the farmer's right to transfer his property to his own family is really being taken and those who say that we shall still have free sale and fixity of tenure will be whistling in the wind. If this simple amendment is not accepted then the Minister cannot say that the farmers still enjoy the free sale and fixity of tenure that we have enjoyed for the past hundred years.

This amendment is not in my view designed at all for the purpose which is proposed here. I think that the mover and Senator McDonald know quite well that if it were accepted it would provide a ready-made escape clause for probably 90 per cent of the cases that escape the Land Commission net at the moment where sales take place to frustrate Land Commission action. Nobody is suggesting, and I do not think I should have to repeat this, that a farmer should not have the right, which he has, to leave his land to his son in the ordinary way. One would think, listening to people advocating this amendment, that this power will be used to stop the farmer doing the normal thing he does every day in the week.

Let us remember that in these cases the Land Commission would not be after these lands were it not for a long history of bad user. It is suggested that there will be what I might call a deathbed conversion of the farmer concerned from what he thinks of his son who is God knows where. This kind of case does not arise where the farmer's son is living on the farm. It arises with people who have let their lands for a long time, or people who have a history of bad user and whose family are not there. If this gateway were open, the landowner with a long history of bad user having many reports sent in about him and ultimately served with a notice from the Land Commission, could defeat the whole purpose of the Land Commission by a simple deed of transfer to his son or daughter in Australia, New Zealand or in England, where many are. It would make a laughing stock of the whole Bill.

I am satisfied such an excuse could and would be used to defeat the Land Commission proceedings. Perhaps, we will not often have cases of transfer to children as far away as Australia but we can commonly have transfers to sons and daughters in England. If necessary, these children would be instructed by their legal advisers to keep their addresses secret so as to escape service of notice. We would have their transfer registered on the folio and we would be in a position of watching the thimble and the pea looking for the owner. That is a practice that has been operating week in, week out to defeat the Land Commission purposes in this country for many years.

I have considered whether we could make an exception limit, to add some kind of qualification for a child who was prepared to reside on the holding or for somebody who might have agricultural training, because we have to face it in many cases we have in mind. There are people in different vocations in life who would not come back no matter what was offered to them. I have considered that aspect of it and the answer is the same as the answer the Land Commission have been given year in, year out where they move against any landowner who is a bad user, or is away and has the land let for years. The Land Commission give ample time for such landowner to come back, take up residence and start work as a normal farmer would. The Land Commission have, in many cases, been severely criticised by people in the vicinity when cases of absentee owners were adjourned for two or three years to give them a chance to come back. The Land Commission find this does not happen and they have to continue with the proceedings.

When this section is passed, when there is a history of bad user and the lands are badly required for the relief of congestion, and the Land Commission serve their notice, quite obviously the same facilities would be extended by the Land Commission to a son if he is available and is prepared to come and reside on the farm, as would be extended to the absent father at the moment. He can apply and tell the Land Commission what his intentions are and that he is prepared to come back and work the farm which, mind you, his own father has refused to give him until the eleventh hour.

I should like to know how many genuine cases of this kind one would have. But, now that we have gone into the realms of outer space in discussing this amendment, if a son from England or anywhere else were prepared to come back and the father was prepared to hand over the holding to that particular son, then the Land Commission would be entitled and would give consent to the son having the lands, provided they were satisfied he was prepared to come back, live on the lands and work them.

There is no reason why Senators, disregarding what I term my pious hopes or disregarding any suggestion that the Land Commission would act reasonably and they are not prepared to accept that the Land Commission would, should go for the proposition that the Land Commission would exercise the law any more harshly against the absentee son than they are at present doing against the absentee father. It is not the Land Commission's purpose to acquire lands in any case in which the owner is prepared to live on the lands and work them. That is the experience of everybody concerned with Land Commission workings in these cases. If this amendment were accepted, this section might as well not be there. If every single landowner, no matter where he may be, has his lands let for donkey's years he has only to transfer them to his son or daughter to defeat Land Commission proceedings. It is to stop the frustration of Land Commission proceedings by quick sales that this power is sought and, indeed, the Bill would be ineffective without it. That particular abuse which has been there for so long would still be there to an even more marked degree. I, therefore, suggest to the House that this amendment should be rejected.

On Committee Stage, I invited the Minister to put down an amendment which would entitle a farmer, even if the farm had been inspected, to transfer that farm to his child who was qualified, prepared and willing to work it to the reasonable satisfaction of the Land Commission. I am still convinced that it is quite within the capacity of the Land Commission, the Minister and his advisers to draft such an amendment. Senator Nash based his objection to this amendment on the argument that we should either approve of the Land Commission and give them a blank cheque to do as they like in the acquisition and distribution of land, or we should vote no confidence in the Land Commission and abolish them. I think, if that is the only argument against this amendment, it shows the merit of the amendment.

I believe in the Land Commission and I believe that, by and large, over the years since the foundation of the State, the Land Commission have done reasonably good work and I hope will continue to do so, But I am not prepared to give a blank cheque to the Land Commission to do as they like, without reserving to the Legislature safeguards for the interests of farmers and fathers of families. It is as simple as that. Senator Nash and the Minister both have said that if this amendment is accepted the section might as well not be there. I disagree with that entirely. Every farmer who sees his land inspected will not have a son or a child to whom he can transfer the farm or to whom he wants to transfer it.

There is one point I should like to urge on the House. There is no question of money in this. A farmer can get no more money out of his farm by retaining it for himself or by retaining it for his child than he can get by selling it to the Land Commission. Thanks to the wisdom of the Oireachtas, the Land Commission must pay a fair market price for land. The person selling land can appeal to the judiciary if he is not satisfied with the price offered. The only thing which will encourage a farmer to transfer land to his son is that he wants to keep it in the family. The son is not likely to accept the farm unless he is interested in farming or is prepared to work it. I do not agree with the Minister when he says farmers' sons who emigrate to England or elsewhere and who come back to Ireland are not fit to own farms.

I did not say any such thing.

That is what the Minister implied.

If the Senator is quoting me let him quote me. I did not imply any such thing.

The Minister implied many of them would make bad farmers, that they were brought up and were working at a different job and in different surroundings in England. If the Minister did not mean that, there does not appear to be any ground for his arguments against the amendment. I have seen families who were left orphans, who went to England, earned money there, came back and bought land here. They made excellent farmers.

The Minister said there is no desire to prevent a farmer from transferring his farm to his son. That has been creeping into Government policy over the past twelve months. We have the Succession Bill which says that a farmer who transfers his farm to his son and does not live for twelve years afterwards, cannot actually transfer that land. That is going a long way, but, in my opinion, it seems to be evidence of Government thinking on this particular point.

It is not in order to anticipate legislation.

With great respect, I do not think I am doing so.

It is not in order to discuss a different Bill on this amendment.

I am discussing the Bill, as it was introduced, and, as it still stands. At any rate, we shall leave it at that. The Minister, in another argument, said my amendment spoke of quick sales. There is nothing in it about quick sales. I am not talking about quick sales. I am talking about the transfer from a father to a son. I believe the Minister, in opposing this amendment, is unreasonable. I am quite prepared to agree that, perhaps, a more desirable phraseology might be used in the amendment. I made my point on this matter crystal clear on the Committee Stage and I invited the Minister to introduce an amendment to cover the point.

The Minister also made a point that the Land Commission do, and will continue to do, all things to relieve congestion. If that is so, what is the objection in not putting that into the Bill?

The Minister told us time and time again during discussions on the Bill that things will be tightened up, that it will be made easier to acquire land for distribution. That is the sort of thing I am afraid of. The Land Commission are getting a lot of power in this Bill. A different approach by the Minister to an amendment of this sort would do a lot to allay the fears that many people have about many sections in the Bill.

There is one point I should like to make.

An Leas-Chathaoirleach

The Senator may only ask a question. The debate on this amendment is over since Senator Fitzpatrick has concluded.

There is no distinction made in this section. Does it apply to all holdings, to large holdings, medium-sized holdings or small holdings? The Minister has made the point that a son or a child may be away in some other country, but I think there may be good reasons why he may have to go away. There may be good reasons why the father might want to will him the holding. I think that is a good point.

An Leas-Chathaoirleach

Senator Desmond will have to content himself with asking a question on this Stage.

This has nothing to do with the farmer's will at all.

Amendment put and declared lost.

I move amendment No. 17:

In page 10, between lines 20 and 21 to insert the following:

"( ) This section shall not apply to any sale or transfer made pursuant to any court order or made by an executor or administrator in due course of administration or to any transfer giving effect to a contract duly stamped with an impressed stamp and bona fide entered into before the publication of the relevant provisional list or the service of the relevant notice.”

Section 13 deals with the prohibition of sale, transfer, letting or subletting of certain lands without the consent of the Land Commission. The Minister, on Committee Stage, promised us he would look into the points we raised. I can see he may have certain objections on the first two points, the sale or transfer made pursuant to any court order and the sale made by an executor or administrator in due course of administration. I should like particularly to deal with his objection to the third point which is a contract duly stamped with an impressed stamp and bona fide entered into. The Minister said if he were to accept this, it might leave the way open for all sorts of bogus contracts. It is with the object of getting over this difficulty, which I can see is a real one, that we inserted in our amendment that it should apply to a contract duly stamped with an impressed stamp. The impressed stamp, as the House knows, will go out of date on the date on which it is stamped. There can be no question of back-dating it. It might be that it could be dated prior to the date of publication of the provisional list or of the service of the notice.

At least if the Minister would accept the other part of the amendment, the Land Commission would not be able to prevent a genuine sale. The object of the amendment is to prevent the Land Commission from prohibiting a genuine sale. We see very clearly the difficulty the Minister and the Land Commission face in dealing with bogus sales, but if there were an impressed stamp it could not be faked. It would be dated prior to the publication of the relevant provisional list or the service of the relevant notice. We think this would get over the difficulty of the Minister and the Land Commission.

This amendment has given me some difficulty and I considered it with special care because, on the face of it, there seems to be a lot to be said for some relaxation in favour of the bona fide purchaser. It seems hard that such a purchaser should find himself in difficulties through the action of a third party, after the event. I do not regard the impressed stamp as the solution to any problem nor do I concede that there is any need to provide for a purchaser whose contract antidates the provisional list. In the normal case, the standstill imposed by an inspection notice will be in operation for some time before the provisional list is published, and no question of a sale without the consent of the Land Commission should arise.

Furthermore, I would not be impressed with the case of the secret sale by private treaty. The sale by public auction is the only one that would trouble me. In this connection I should like to draw attention to section 27 of the Bill under which the senior inspector in each division will be authorised to order an inspection. The date fixed for an auction will be public knowledge, and it will be the responsibility of the senior inspector to approve action before the auction takes place, or if he received his information too late and the auction has taken place then, as a sensible official, he should hold his hand and ascertain the result of the auction before a notice goes out.

Therefore, as I see it, we will only have this problem of the bona fide prior purchaser in some case in which the ordinary lines of communication have got mixed up, or some misunderstanding has arisen. If such happens to be the case, the purchaser will be put to some trouble anyway. If his solicitor sees a section 13 entry on the folio he will insist on going to the Land Commission for an “all clear”. Indeed, I cannot visualise a solicitor closing a sale no matter what was said by the vendor's solicitor until the vendor's solicitor produced the consent of the Land Commission. He would not assume that his client was automatically exempt even if we did write it into the Bill.

I think Senator Ross, on thinking it over from a practical point of view, will appreciate that no matter what might be here, if some of those things happened, the solicitor for the purchaser would, as a matter of course, insist on the consent of the Land Commission so as to make sure the transaction was quite in order. I am afraid that taking one thing with another I am unconvinced by the case made for this amendment.

An obvious case which springs to mind in regard to the document with the impressed stamp is that even in local post offices there are documents which can be used for promissory notes. Without elaborating too far on this, an impressed stamp would not be the answer to our problem. If I did not tell the House on the previous occasion, let me say now that we have already had experience of faked contracts and faked sales for the purpose of evasion. There have been faked contracts with auctioneers, and in one case a member of the legal profession was involved. That being so, the Senator will appreciate that the type of case he envisages would be fraught with suspicion. It would be a case in which there was sale by private treaty, alleged to be at the time—or within days—of notice being served under this section. I am sure the Senator will appreciate that such a contract would obviously be open to suspicion. If it were a genuine case the Land Commission would have to accept it. I do not see how we could write something like this into the Bill without providing another escape route.

As I have said, I cannot see this arising in practice in the case of a public auction unless there was a mix up in communications or some accident of that kind. Obviously, suspicion would be caused by the peculiar coincidence that the farm which in the ordinary course of events was under observation by the Land Commission for a considerable time happened to be sold a couple of days before the freezing notice was served. The House will appreciate that such a contract would be fraught with suspicion. That type of contract has been produced to evade the law as it is, and there would be far greater reason to invent such a contract as the law will be, for the purposes of evasion. For those reasons I am afraid I cannot accept the amendment.

I should like to thank the Minister for giving consideration to the amendment. I can see his difficulty and I think he can see mine.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 10, line 37, to add at the end:

", and to all other persons (if any) appearing to be in receipt of the rents and profits or to have control and management of the land in question".

Section 14 provides that where there are proceedings under the Land Purchase Acts the Land Commission have power to appoint nominees. They can do this by order, and they can appoint any person or persons who appear to them to be in receipt of rents and profits, or to have control and management of any land. Subsection (2) goes on to provide that before the Land Commission make an order they must give notice of their intention to make the order to the person whom the Land Commission propose to be appointed as the nominee. Subsection (1) deals with any person or persons appearing to the Land Commission to be in receipt of the rents and profits or to have control and management of the land and, out of those persons — and they may be a group of persons — the Land Commission are able to pick a nominee.

Subsection (2) goes on to say that they shall give notice, then, before making the order, of their intention to make the order to the person whom they intend to appoint as nominee— and that is only one person out of that whole group. This is a small but, I think, important amendment. What we seek to do is to add to the end of subsection (2) that the Land Commission shall give notice to the person whom it is proposed to appoint the nominee but also to these other persons who it appears to them are in receipt of the rents and profits or to have control and management of the land in question. The amendment merely adds to the end of subsection (2) that the Land Commission must give notice to all persons, if any. If there are no other persons then, of course, they do not have to give notice to anybody else except to the person picked as nominee — the person appearing to be in receipt of the rents and profits or to have control and management of the land in question. This is the small but very important amendment.

It is quite wrong in principle that the Land Commission should be able to pick one person out of a group of persons known to them who have some interest in the land or the control and management of it and to serve only that one person with notice. Therefore, the amendment is put down to provide that the Land Commission will serve notice on such other persons as appear to be in receipt of the rent and profits or are in control and management of the land. It seems to be a fundamental necessity in ordinary common justice to put these people on notice and, in practice, it will not be of very great hardship or difficulty to the Land Commission.

I think the Senator is under some misunderstanding about the practice envisaged here. I went very fully into an explanation of the same point on amendment No. 32 on the Committee Stage. I am satisfied that what the amendment asks to be done is already contained in the section as far as it can be achieved from a practical point of view.

The Senator will see that subsection (2) requires the Land Commission to give notice to the proposed nominee or nominees, the plural is there in lines 25 to 27 of subsection (1) requiring that the Land Commission will normally appoint one of the persons mentioned in the Senator's amendment who will thus get notice. In other words, they will appoint one of these persons that are there and appear to be in receipt of the rents and profits. The section will naturally make special provision to overcome any practical difficulties arising from such persons being under a disability or being absent and, therefore, not capable of being dealt with expeditiously.

To accept the amendment as it is would, I am afraid, really make the section unworkable. The Senator will appreciate that if, as he suggests here, there are other persons appearing to be in receipt of the rents and profits or to have control and management of the land in question, and readily available, the Land Commission would automatically give them notice.

Take the first case I pose, that is, where there are some people actually on the lands or on portion of them. If the Land Commission ignore any such person they are simply walking themselves into trouble. It would be impossible for them to deal with the lands without getting rid of these people or getting their interest or dealing with them, one way or another, because they would ultimately be forced to eject them. There is the odd case of the queer person who comes back after giving up possession of the land but lands with anybody on them are completely useless to the Land Commission from the Land Commission's point of view irrespective of whether or not, under the law, they become the legal owners. Therefore, there is provision here to nominate not alone one but they can constitute a number of people. They can make nominees if they are there and if they are readily available, of a number of people — to put it in the words of the Senator's amendment, "persons (if any) appearing to be in receipt of the rents and profits or to have control or management of the land in question."

What this is destined to do is that, where there are not people readily available or people who can be served or people whose whereabouts are unknown, the Land Commission in such a case can appoint this nominee and proceedings can go ahead. The Senator appreciates that the compensation and the purchase money must be dealt with in accordance with law.

The only effect of the appointment of a nominee is to enable Land Commission proceedings to go ahead and not to be held up and that those who are entitled under law will have to prove their title to the purchase money of the land in due course. The procedure now is that where there are ascertainable people, within the category written into the Senator's amendment, they are served. Where there would be such people, after the enactment of this section, they would also be served and a number of them would be and could be nominated as nominees under this section.

Therefore, for the purposes of the law, it is a section that, from a practical point of view, is very necessary in a number of cases, particularly in cases like commonages, and so on, where it is not at all clear who the owners might be or where they might be. It is, in the main, in that kind of case that the Land Commission need a nominee to enable Land Commission acquisition proceedings to go ahead and, when it comes to those entitled to the money, the ordinary law applies. Where they are readily ascertainable, they would be served and constituted nominees for the purpose of this section.

I appreciate that this does not concern compensation or purchase money. That, as the Minister says, is quite adequately dealt with elsewhere. I am concerned with the fact that a nominee can be chosen by the Land Commission. The person who is chosen will obviously be someone who is on the land and easily accessible to the Land Commission. Our concern is that there are other people who may well be in receipt of rents and profits or may have some management or control of the land who will not have notice and for that reason will be at a disadvantage. They may not be at a disadvantage as far as compensation or purchase money is concerned ultimately, but they will not have so much time to prepare whatever case they may have to put. The person taking the land will be in a different position compared to those people. Those other people who are known to the Land Commission should be put on notice.

Amendment put and declared lost.

Would I be in order, in the unavoidable absence of Senator Sheldon, in moving amendment No. 19?

An Leas-Chathaoirleach

Certainly, if you have a seconder.

I move amendment No. 19:

In page 12, line 33, before "to" to insert "power."

In section 20 the phrasing is awkward and might be misleading. As I see it, the difficulty is that in the first line we have the phrase "the powers of the Land Commission" to do so and so and in line 32 we have the phrase "including power to." This makes it ambiguous in line 33 whether the phrase "and to define and extend" and so on is governed by the clause in line 28 "the powers of the Land Commission" or by the clause in line 32 "including power to convert". As I see it—perhaps if Senator Sheldon were here he might shed a different light on the matter—the wording is a little awkward and might be misleading, and would be improved by the insertion of the word "power" as suggested by Senator Sheldon.

I second the amendment.

This is a choice of wording, but there is another good reason why my choice of words should be left there. I am satisfied that there is no legal difficulty in the text as it stands and that Senator Sheldon's problem relates in the main to a question of style. I conceded that the words might flow better if they were changed as he suggests, but I should point out that they have been taken exactly from section 39 subsection 2 of the Land Act of 1931 which still remains on the Statute Book and has not given the Land Commission any trouble for the last 34 years. I suggest that it might be all right if we left well enough alone and did not disturb the balance between the sections in this manner. We might only raise a minor doubt about the basic section of the 1931 Act and create some legal trouble in that sector. If there are different formulae in analagous sections the courts are likely to consider them differently although this may not be the underlying intention. At all events, the words are there for 34 years in the 1931 Act and I would suggest that it would be unwise to disturb them as a tightening-up operation.

Amendment by leave, withdrawn.
Government amendment No. 20:
In page 12, line 45, after "defining" to insert "and extending".

This is a small drafting point. The word "defining" in the existing text covers the normal case of the creation of a new right. It is necessary to put the words "and extending" to cover other cases in which the right does exist but needs to be extended.

I do not want to raise a hare, but does the Minister really want "for the purposes of conferring and defining and extending"?

Or does he want "conferring, defining or extending"?

And extending.

Amendment agreed to.

I move amendment No. 21:

In page 12, to delete lines 48 to 54 inclusive and substitute:

"( ) The powers of the Land Commission under this section shall not be exercised compulsorily in such a way as would be likely to cause serious interference with the amenities of any occupied dwelling-house in existence at the date of the service by the Land Commission of the notice of intention to exercise such powers."

The Minister in Committee promised that he would look at this amendment and consider it, and as a result he has produced 5 amendments — Nos. 22, 23, 24, 26 and 27.

Amendment No. 24, which is mine, is designed to meet your point so far as I could on this.

Yes, but I think all these amendments to some extent meet the point of amendment No. 21. We objected strongly to the word "adjoining" and the Minister has suggested amendment No. 24 in which he proposes to substitute "within 50 yards". We would have preferred our own wording here, because while 50 yards is very reasonable it could be still an area in which a modern transistor could be heard and might interfere with the amenities of a dwelling house. With the leave of the House I should like, if this can be done, to withdraw amendment No. 21 if the House should accept the Minister's amendments which follow. If the House should not accept the amendments which follow, I should like to reserve my position on amendment No. 21 if that is possible. This is, of course, theoretical.

An Leas-Chathaoirleach

A conditional withdrawal?

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendments Nos. 22, 23, 24, 25 and 27 may be taken together.

Government amendment No. 22:
In page 12, lines 48 to 50, to delete "to define and extend or improve rights of way to and from the sea or to and from a lake or river".

On amendments Nos. 22, 23 and 24, on Committee Stage, we had a reasonable discussion on section 20, as a result of which, I now propose some improvement in the wording. In particular fears were expressed about the effect of the word "adjoining" in line 51. I came to the conclusion that it might be better to lay down that the right of way or parking places must be at least 50 yards from the occupied dwelling. This is fair and the amendments I have tabled are designed to meet this proposition.

Amendment agreed to.
Government amendment No. 23:
In page 12, line 51, to delete "of way".
Amendment agreed to.
Government amendment No. 24:
In page 12, line 51, to delete "adjoining" and substitute "situate within fifty yards of".

Arising out of amendment No. 24, I wish to thank the Minister for meeting substantially the points raised in my amendment No. 25. This is of special significance to us in Cork where a great deal of resentment has been felt over the denial by a foreign landowner of access to a beach in Fountainstown. That has been resented very deeply by the local population and now, under this section, can be put right and we can ignore the threats of injunction hurled against us by this foreign landowner who should realise his position much more clearly.

Amendment agreed to.
Amendment No. 25 not moved.
Government amendment No. 26:
In page 12, line 53, to delete "one year" and substitute "six months".

It was argued very reasonably on the Committee Stage that every existing dwelling should be protected from possible nuisance and that I was being over-careful in seeking to provide that only a dwelling which was in existence 12 months before the relevant notice would be protected.

I am still of the opinion that it is necessary to provide against the objector who rushes the erection of a cheap dwelling to defeat imminent proceedings but I am prepared to concede that six months may do instead of twelve in order to meet the arguments or fears expressed in the House on Committee Stage.

To be realistic about the matter, the type of work to be done under section 20 would often have a lower priority and the inspectors might have to put it aside temporarily in favour of urgent acquisition and resale work; in such a situation, an objector would have time to erect, say, a holiday chalet which would rank as an "occupied dwelling". At all events, in view of the discussion we have had and the opinions expressed here, I felt I should reduce the period to six months and I think that should reasonably meet the wishes of the House in connection with this particular provision.

I would still like to have seen the period put down to the date of service, and I should like to thank the Minister for the way in which he has met our points on this and on earlier amendments. We accept six months as being better than twelve.

I should like to join with Senator Ross in thanking the Minister for the way in which he has met us on these points.

Amendment agreed to.
Government amendment No. 27:
In page 12, line 54, to delete "of way".
Amendment agreed to.
Amendment No. 28 not moved.

An Leas-Chathaoirleach

I move amendment No. 29:

In page 14, to delete lines 33 to 40 inclusive and substitute:

"Notwithstanding anything contained in subsection (6) of section 40 of the Land Act, 1923, as amended by this Act and section 12 of the Land Act, 1950, for the purposes of expedition it shall be competent for the Land Commission to authorise a senior inspector to initiate acquisition proceedings."

I hope, in this atmosphere of extreme politeness, I shall be in a position to thank the Minister too.

On Second Reading I dealt at some length with this matter and I made the position perfectly clear that there was nothing personal or political in my point of view. I want to make the same position clear now. The Minister, in his reply on Second Reading, made that point of view more easily tenable for me because his view was that section 27 was clearly designed for the purposes of expedition and expedition seemed to be the main point with which he was concerned. With that in view, I tabled this amendment for this stage of the Bill with a view to giving the Land Commission the power to enable the senior inspector to initiate acquisition proceedings and thus bring about the expedition which the Minister, and indeed all of us, so earnestly desire and I think it can be accomplished in that way.

The only difficulty I see is that the Minister wishes to retain the power. I want to give the power to the Land Commission. I want to do that, not alone to protect the present Minister but all future Ministers and to preserve the quasi-judicial atmosphere that has prevailed in the land code over the years. It is to preserve that that I am strongly of the view that this power should be preserved to the Land Commission itself. I think, at this time of the day, it would be a poor tribute to the Land Commission to take it away from them. I admit quite readily it was necessary to make some change with a view to expediting the procedure. Accordingly, I do not think there is anything more to be said one way or another in urging this. The position, as I have stated it, is quite clear. I want the power reserved to the Land Commission. I want the procedure changed whereby they can expedite the use of their powers and hasten the acquisition of land. It is in that spirit and in the spirit of the Land Acts right through that I urge on the Minister to accept the amendment.

I formally second this amendment and reserve the right to speak later.

I would first like to make it clear that I disagree with the use of the phrase "to initiate acquisition proceedings" in the amendment. It has never been the practice to regard the serving of the inspection notice as the commencement of proceedings. It is no such thing. This notice initiates an examination or a fact finding operation. That is all it initiates, and if, after considering the ascertained facts of the case, the Lay Commissioners decide there are grounds for compulsory acquisition, they authorise the publication and the service of the notice of the provisional list. I have stated that is the start of the proceedings; it is in the initiation of the legal proceedings.

I think I said on a discussion of this section on Committee Stage that in 50 per cent of the cases of inspections, notice of the inspections are served under section 40 and nothing further at all is done. In other words, when the facts are ascertained and they are reported to the Lay Commissioners of the Land Commission and the Commissioners decide that they should not go ahead with proceedings on any account that is the end of the matter. Where a landowner is in trouble with the law, once the notice has been served and published in Iris Oifigiúil that is the initiation of the proceedings.

It was, I think, on section 27 the position was explained that this was put there for the purpose of removing doubts and it is undoubtedly necessary to have this change made for the purpose of expediting proceedings. In these circumstances, I regret I cannot accept this amendment. I accept what the mover has said. He has not suggested that there would be any abuse of this particular notice. All these notices that will be served or have been served in the past are just fact-finding. As I pointed out, that is 50 per cent of these cases. It is only in the other 50 per cent, where the facts are ascertained, that the Commissioners — whose job it already is — will have to decide whether the proceedings should go on or not.

Will the Minister be much longer?

I have said all I want to say.

Acting Chairman

The debate will stand adjourned until 3 o'clock tomorrow.

The Minister seems to be in difficulty about initiated proceedings. Perhaps, between now and tomorrow, we might be able to devise a common phrase that might cover the matter entirely.

Is the Seanad meeting at 10.30 a.m. tomorrow?

We thought of sitting at 10.30 a.m. but in deference to the views expressed by the Opposition, we are meeting at 3 o'clock.

Some of us have come up from the country and we have got to hang around until 3 o'clock.

Acting Chairman

The time specified in Standing Orders is 3 o'clock.

We could change them as we have done before for the purpose of conveniencing Senators.

Debate adjourned.