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Seanad Éireann debate -
Wednesday, 1 Feb 1967

Vol. 62 No. 8

Landlord and Tenant (Ground Rents) Bill, 1965: Report and Final Stages.

I move amendment No. 1:

In page 3, line 23, to add at the end:

"and different dates may be appointed for different sections."

The reason I am moving this amendment is that there may be some difficulty and that some time may elapse before the Bill is completely in operation. The Minister may have some other views on that and, if he has, the amendment may not be necessary.

It is intended to take amendments Nos. 1, 46 and 47 together.

My principal purpose in putting down this amendment is to ensure that the real amendment to the existing law of landlord and tenant, which is proposed to be effected by amendments Nos. 46 and 47, which are the same, will come into operation without any delay. I think it will be agreed that it is desirable that the relief being provided by the section should not be delayed. In addition, it seems to me that there are other amendments to the law of landlord and tenant contained in sections 25 to 32 which need not be delayed. Therefore, I suggest that the Minister should have power to bring these various sections, which do not deal specifically with ground rents, into operation on a date earlier than the other provisions of the Bill, if it is inconvenient to bring the other provisions of the Bill into operation at that time.

I want now to turn to amendment No. 47 which is the same as Government amendment No. 46. I think the House is already aware of the need for this amendment. Its purpose is to bring relief to tenants who, for one reason or another, find themselves in the position of being the assignees of property which has been let or assigned without the consent in writing of the landlord and therefore find themselves with absolutely no title in law to the property. It has been held in a number of cases, which it is unnecessary for me to go into now, that no relief can be given to a tenant or the assignee of a tenant who has acquired property where there is a provision in the lease against assigning, subletting or parting with possession without the consent in writing of the landlord. I am pleased that the Minister has an amendment down to deal with the same matter and I can anticipate his agreement to accept this amendment.

There may be criticism by some people that this is not perhaps the best amendment that might be effected. That may be so. However, the hardship that is being caused and that will be caused to tenants of property by allowing the law to remain as it is warrants the House in making this amendment to the existing law of landlord and tenant. I do not think there is any great hardship: I know that the amendment will widely be welcomed by the legal profession which sees both sides of the case. It sees the case from the point of view of the landlord and from the point of view of the tenant.

The legal profession is well aware of the extreme hardship caused to tenants who unwittingly have acquired property which was assigned without the appropriate consent, in writing, of the landlord. The improvement in the law contained in the Minister's amendment and in my amendment will remove the temptation, which unscrupulous landlords have availed themselves of up to now, of causing the complete forfeiture of property for which persons might have paid thousands of pounds.

In the ordinary course, in our general law, there are provisions in the Statute of Limitations where somebody has certain rights. However, the general policy of the law is that the line must be drawn at some stage where people have certainty as to their occupation of personal property and are not troubled by litigation long after the event has occurred. In the existing framework of landlord and tenant law, there are cases where breaches of covenant occurred up to 40 years ago and, because the breaches continue and because the assignment was void ab initio, there is nothing in the existing Statute of Limitations to work in favour of the person in possession. In this amendment, we are not doing any more than putting the tenant in the same position as if he were a squatter who had acquired title against landlord property under the Statute of Limitations Act.

The landlord is not shorn of all rights under this amendment. He still has the right to say that the lease is forfeited. If the person is an unsuitable tenant — for example a bankrupt or a person of no substance — he still has his rights under the Conveyancing Act to come into court and, if it is a good case, the court will uphold him. Therefore, we are not injuring landlords in this provision. I am very pleased that the Minister has agreed to accept this amendment. I trust he will not fault me for having, to some extent, infringed his copyright in the improvement of the amendment I had on the Committee Stage.

I think the amendment I put down meets the point made by Senator O'Quigley the last day. I am glad he brought this matter to the notice of the House. Undoubtedly, the two sections in the Deasy's Act, 1860 — section 10 and 18 — imposing the forfeiture principle in cases where assignment or subletting has been carried out without the written consent of the landlord, are too drastic in the modern context and, in effect, in regard to other covenants, have been whittled away by the Conveyancing Act, 1881. This brings this particular kind of assignment and subletting under the 1860 Act into line with the other provisions relating to breaches of covenant and is consistent law in regard to breaches of covenant.

The Senator need not fear that there will be delay in bringing the Act into operation. The drafting of the regulations is in train. My purpose is to have the commencement date declared immediately after the passing of the Act and to have it brought into operation as quickly as possible. By that, I mean a matter of a month or two, no more than that.

In these circumstances, I beg leave to withdraw amendment No. 1.

Amendment, by leave, withdrawn.

The following amendment appeared on the amendment sheet:

2. In page 4, to delete lines 10 to 12 inclusive — (Senators O'Quigley and FitzGerald).

I do not know that this is entirely correctly stated on the amendment sheet.

The deletion of lines 10 to 12?

It is subsection (3) that I was concerned with deleting.

I was not quite clear about it either.

Subsection (3) would be deleted in consequence of the deletion of the county registrar as the determining authority throughout the Bill.

That explains it.

Then we had better take it with the debate on a series of later amendments.

Is the amendment not moved?

It cannot be moved.

Amendment No. 2 not moved.

I move amendment No. 3:

In page 4, line 21, to delete "as respects" and substitute "in relation to".

I think it would be convenient to allow me to take amendments Nos. 3, 4 and 10 together.

Amendments Nos. 3, 4 and 10.

The same principle is involved. This is merely a question of the English usage and the language in which the Bill is couched. We had this discussed already and the Minister promised that he would have a look at it but, apparently, his having a look at it did not prompt him to suggest any change. So we still find that section 3, subsection (1) says "a person who as respects any land". It is the phrase "as respects" that I object to on the ground, simply, that it is not good English. I think "as regards" is quite legitimate but I think here what is meant is either "in relation to" or "with respect to"—"a person who in relation to any land is a person to whom ...".

The Minister gave us as a defence for this "as respects" the fact that a British parliamentary draftsman had used the phrase but I feel that that as an authority for English language usage is not perhaps going as far back a source as could be reached. In each of these cases the drafting would be improved — although it is a small point — linguistically improved, by replacing "as respects" which I again submit respectfully is not English.

I note with pleasure, in support of my contention, that, for instance, on page 6 of the same Bill, line 46 reads: "the rent payable by him in respect of the land"; on page 7, line 54 reads: "the rent in respect of the interest in the land"; on page 9, line 16 reads: "where in relation to a rent" and on page 11 line 5 reads: "the rent payable in respect of the land". I feel, therefore, that this "as respects" in these three instance where it occurs constitutes a minor blemish which we ought to remove.

With respect, a Chathaoirleach, the draftsman is in high dudgeon over the aspersions cast by Senator Sheehy Skeffington on his grammer. I have had discussions with him and he will not be too co-operative with me in future drafting matters if I do not hold the fort for him on this occasion.

I have done some research myself since the last meeting of the Seanad and as regards "as respects" being in the proper order of English grammar and English terminology, I have gone to those two fountains of knowledge in regard to English linguistics, the Oxford Dictionary and Webster's International Dictionary.

Tell us what Fowler has to say.

Both of them refer to "as respects" and refer to what "as respects" means in the context of the English language. I would refer Senator Sheehy Skeffington to Volume 2 of the 1933 edition of the Shorter Oxford Dictionary, page 1717, column 1, and to volume 2 of Webster's Third New International Dictionary (1961), page 1934, column 2, in which "as respects" is dealt with in great detail. From any perusal of the remarks in those two English language bibles, I am firmly of opinion that "as respects" is proper drafting, good grammer and good English in the context of the drafting which is before the House at the moment.

The Minister seems to me to be following a former Leader of his Party in according to dictionaries an authority which they do not have politically or, indeed, as regards correct usage. A dictionary may say what, in fact, words used or abused mean. It does not tell you whether it is, in fact, good usage. I wonder whether the Minister in failing to consult Fowler on the matter was inadvertent or deliberately avoiding taking an authority on correct usage. What the Minister has not done is explain to us why, in fact, it is necessary to use a phrase to which exception is taken, which seems to be out of line with the rest of the Bill, whether it has some special meaning here and is necessary because it means something different from the other three usages to which Senator Sheehy Skeffington has referred, and whether, therefore, if it is dropped, this could lead to a legal flaw of some kind. If, in fact, this were the case, one would understand it. If not, it seems pointless to insist on complicating the Bill by using arbitrarily another phrase. The mere fact that the draftsman is in high dudgeon because an aspersion is cast on his grammer is no reason for retaining the item. The Minister may feel so but I do not think the House would feel so. Unless there is a legal reason for maintaining it, it should be changed to something more acceptable and more in line with the rest of the Bill.

Senator Sheehy Skeffington was making a grammer point, not a legal point. There is no legal point involved.

It is not a question of consistency?

This is only a bit of gentle badinage.

I cannot see that the draftsman has anything to do with it. The mere fact that the draftsman is in high dudgeon is no reason for not drafting the Bill in good English. If the draftsman felt that there was a legal point involved, his opinion should be deferred to. Otherwise, it should not.

The point is, the English is acceptable.

The Minister will appreciate that we employ draftsmen to draft legislation in terms which can be understood, not alone by this House and the other House, but by the people to whom the legislation will be applied. It has been strongly suggested here, and personally I am wholeheartedly in agreement with the point, that this term is badly expressed. It may be good English according to the authorities quoted by the Minister.

Not good English. These authorities say that it is English. They do not say that it is good English.

Quite. My point is that as far as I and many people are concerned, we could understand it if it were expressed more simply and in conformity with the type of phrase we are accustomed to. That is the main point made by Senator Sheehy Skeffington. It strikes me that this House or the other House should not be dictated to by the whims, or the convictions for that matter, of the parliamentary draftsman. We ought to tell the draftsman what we want and what we insist on having and, having done so, should insist on having it.

It is not often that I find myself in agreement with Senator Sheehy Skeffington but when I do, I think I ought to mention it.

It is a grand thing to see that he has one friend in the House.

I do not understand the Minister's argument about the parliamentary draftsman. This has just been said — we are usually willing to bow to his opinion on a legal matter but why we should bow to him on a matter of grammer, I do not know. He is not supposed to be an authority on grammer. This is not the first time a queer phrase has appeared in a Bill. One gets some very awkward constructions. However, I am quite happy about "in relation to". I think it is infinitely better than this dreadful phrase "as respects". The latter does not strike well upon the ear. Legally it may be what the Minister means but from that point of view, the argument would have been more convincing had the parliamentary draftsman stuck to his guns right through the Bill — as respects, as respects, as respects.

I must stick to my guns on this major issue.

The Minister should, I think, pay more attention to the Seanad than to his parliamentary draftsman.

I was being jocose.

I have nothing further to add except to draw attention to the fact that the Minister, in quoting the two dictionaries, did not quote what they said. He mentioned that they say this term exists. It has a tenuous existence, but it is not referred to in Modern English Usage and I think among people using English every day there would be general agreement that "as respects" such-and-such sounds odd and clumsy. I am glad to see there is quite a bit of support for this view here. Because of that I am inclined to press the amendment.

An Leas-Chathaoirleach

Is the amendment being withdrawn?

The phrase I used was "to press the amendment".

Question put: "That the words proposed to be deleted stand".
The Seanad divided: Tá, 20; Níl, 12.

  • Boland, Gerald.
  • Brennan, John J.
  • Browne, Seán.
  • Eachthéirn, Cáit Uí.
  • Egan, Kieran P.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Flanagan, Thomas P.
  • Honan, Dermot P.
  • Killilea, Mark.
  • McGlinchey, Bernard.
  • Martin, James J.
  • Nash, John Joseph.
  • Ó Donnabháin, Seán.
  • O'Kennedy, Michael.
  • O'Reilly, Patrick (Longford).
  • Ryan, James.
  • Ryan, Patrick W.
  • Teehan, Patrick J.
  • Yeats, Michael.

Níl

  • Carton, Victor.
  • Conlan, John F.
  • Crowley, Patrick.
  • FitzGerald, Garret M.D.
  • McDonald, Charles.
  • McHugh, Vincent.
  • Malone, Patrick.
  • O'Quigley, John B.
  • O'Reilly, Patrick (Cavan).
  • O'Sullivan, Denis J.
  • Sheehy Skeffington, Owen L.
  • Sheldon, William A.W.
Tellers: Tá, Senators Browne and Farrell; Níl, Senators Sheldon and Dr. Sheehy Skeffington.
Question declared carried.
Amendment No. 4 not moved.

An Leas-Chathaoirleach

Amendments Nos. 5 and 34 go together and it is suggested that amendment No. 7 should also be debated with Nos. 5 and 34.

What connection has No. 7 with No. 5?

It deals with the fee farm situation and it is relevant. I shall explain the situation and it will become apparent.

Government amendment No. 5:
In page 4, section 3, subsection (2) (d), as amended in Committee, in subparagraph (i) to delete "expire twenty-five years or more" and substitute "not expire within twenty-five years".

This amendment and the similar amendment to section 18 (b) which I have put down and which I suggest should be taken with No. 7 in Senator O'Quigley's name, are intended to remove doubts which were expressed on the Committee Stage as to the application of the Bill in relation to fee farm grants. As the Bill stands, persons holding land under fee farm grants are in exactly the same position as persons holding under leases, because the word "lease" is defined in both the 1931 Act and the 1958 Act as including a fee farm grant. Under section 34 of this Bill, these Acts are to be construed together as one Act. Accordingly, where a fee farm grant satisfies the conditions of a building lease, it will attract the right of purchase in the ordinary way. There will be no difference between the fee farm grant tenant and the ordinary ground land tenant envisaged under the Bill. Alternatively, the fee farm grant may come within the definition of the leases which we are now, by the amendment to paragraph (d) of section 3 (2), making eligible in this respect also.

However, on re-examination of the terms of the latter class of lease, it has appeared that the reference to the lease "expiring 25 years or more"— I am quoting from the section — after the date of service of the notice under section 4 could not appropriately be applied to the case of a fee farm grant, because fee farm grants do not expire. The same applies to a similar expression in section 18 (b). Accordingly, the expressions in question have been redrafted to remove this difficulty of application.

In my view, the incorporation of these amendments will make quite clear that holders of fee farm grants will now be in exactly the same position as holders of leases in so far as the right to acquire the fee simple is concerned. I made this point on the Committee Stage and it occurred to me since that in putting in the word "expire" in the extension of categories coming within the terms of the Bill to expire in 25 years or more, the verb was inconsistent with the rights accruing to fee farm tenants. By substituting "not expire within 25 years", the position is made quite clear and copperfastens what I said on the Committee Stage, that fee farm grant tenants are in the same position as other tenants envisaged in the Bill in regard to purchasing out their fee simple rights. To that extent it is relevant to Senator O'Quigley's amendment.

I can see that. We can take No. 7 and deal with the three amendments together. It is perfectly clear from what the Minister says that it is intended to include the fee farm grant within the terms of the Bill and enable the owner of a fee farm grant to buy out the fee farm land. I quite agree with the Minister that section 2 of the 1931 Act defines "lease" as including a fee farm grant. What I am not satisfied about is that in section 3 we say that "a person who"—pace Senator Sheehy Skeffington —“as respects any land, is a person to whom this section applies, shall, subject to the provisions of this Act, have the right as incident to his existing interest in the land to enlarge that interest into a fee simple.” This is a matter on which I should like the Minister to give his view. I understand that a fee farm grant is a fee simple. If I am buying a property held under fee farm grant it is described as property held in fee simple.

What will puzzle lawyers not to speak of laymen when they come to read this Bill is they will know that property held under a fee farm grant is property held in fee simple and then they will say: "You cannot enlarge interest into a fee simple when you have that already." What I want to do is to make it clear beyond any doubt so that we will not have cases in the High Court or people sending off cases to counsel and counsel going into the origin of fee farm grants and fee simple. I merely want to put it into the Bill so that there will be no doubt that a person who owns property in fee simple subject to a rent is entitled to buy out the rent to which the fee simple property is subject. I think, therefore, that we ought to make it perfectly clear that we intend that the fee farm rent should be bought out.

There is another and perhaps more cogent reason from the point of view of construing the Bill. In section 34 we say that the Landlord and Tenant Acts 1931 and 1958 and this Act shall be construed together as one Act and the Minister relies upon that to bring in a lease which includes a fee farm grant within the provisions of this Bill. Mark that in this Bill we go the distance of giving a special definition to "business" but if you look at the Landlord and Tenant Act of 1931 you find that the word "business" is defined. It is clear then that we are giving a special and more extended meaning to "business" in the Ground Rents Bill than we are in the Landlord and Tenant Act. Therefore, if we are dealing with a lease it seems to me to be inconsistent in the one case to import a particular term into the Bill, that is to say a "lease" but in the other case you do not give a new definition to the term "business". It will put the matter beyond all doubt if we include the definition I have suggested in the Bill. It may be that the Minister thinks it is clear but I think it will puzzle a great number of lawyers that in section 3 you say that you are buying out the fee simple to a person who has a fee farm grant as the fee simple subject to a rent. You cannot acquire any larger interest than you have already. You are merely liable to a rent. You have the fee simple under a fee farm grant and, therefore, it seems to me that it is not appropriate to say you shall enlarge that interest into a fee simple. When you are talking about a fee farm grant it is a fee simple subject to a rent. That is the whole point.

The Senator knows it is very difficult.

I know. It is because it is difficult that I want to put it beyond any doubt. I want to make it perfectly clear that a fee farm grant is within the provisions of this Bill and have it standing out large as life in the definition section. For that reason I would urge the Minister to accept the amendment.

First of all——

An Leas-Chathaoirleach

Before the Minister begins I should like to remind the House that we are on Report Stage and the intervention will conclude the debate. Does any Senator wish to speak?

It is quite clear from this Bill that fee farm grantees, to use the correct term — I previously employed the term fee farm grant tenants — have got the right of the other tenants included in this Bill to purchase their head or ground rent. That is quite clear. To copperfasten that, and I do not think Senator O'Quigley adverted to this, we have in section 2, line 35, a provision that "fee simple" does not include the interest in land of a person holding the land under a fee farm grant. In this Act when it is in operation fee simple does not mean fee farm grant, however fee simple may be equated with fee farm grant under other Acts or in other circumstances. As far as this Act is concerned, fee farm grant is not a fee simple. A fee farm grantee is in the same position as a lessee who has the right to purchase out his head rent.

Amendment agreed to.
Government amendment No. 6:
In page 4, section 3, subsection (2) (d), as amended in Committee, in subparagraph (i) to delete clauses (I) and (II) and substitute "is less than the amount of the rateable valuation of the land at the commencement of this Act,"

I am moving this amendment as a result of the discussion on the Committee Stage during which it was suggested that the requirement that the rent under a pre-1914 lease should be less than three-quarters of the rateable valuation, as first fixed or revised after the granting of the lease, was too stringent and would exclude a great number of leases where improvements had been carried out as a result of which the rateable valuation had been increased to a point exceeding the rent payable under the lease. It was also suggested that the rateable valuation to be considered for this purpose should be the valuation existing at the time the notice of intention to purchase was served by the lessee. This last suggestion would mean that a lessee could bring himself within the purchase category by reason of a revision of the rateable valuation in the future and I am inclined to think that this would be going too far. That is why I have chosen in the amendment to take the middle course relating the rateable valuation to the valuation of the land at the commencement of this Act. I think it is fair that the question should be whether or not the rent is or is not less than the rateable valuation at the present day. I think this is a reasonable compromise and I hope it will be acceptable to the House.

I think this is a very reasonable amendment and is an admirable middle course between two extremes. I am aware that there are certain property interests that would have preferred subparagraph (i) of the amendment that was put into section 3, that is to say, that the rateable valuation would be that fixed on the date of the granting of the lease but as the Minister has said that would be unfair to the tenant. On the other hand, people could readily get their valuations increased. There is no difficulty at all under the law in trebling your valuation any day you want it because the way the valuation Acts work at present is that they make out the valuation in accordance with the present Acts and divide by three. That is all going to be rectified at some date in the future. It would be very simple to bring oneself within the provisions of this Act by just telling the Valuation Office that you wished to have your premises revalued. They would be very glad to do that. I think that the middle course is the best one. I know there are hardship cases on both sides. I am aware of one who, if the original part remained, would certainly be in a position to buy out his rent and convert his property into a fee simple property and make it much more valuable than it is at present. Acting responsibly and reasonably and being fair to all interests, what the Minister has proposed is acceptable.

Amendment agreed to.
Amendment No. 7 not moved.

An Leas-Chathaoirleach

It is proposed to take amendments Nos. 8 and 9 together.

Government amendment No. 8:
In page 5, line 2, to delete "and" and substitute ", being a lease".

These are purely drafting amendments. I think they improve the meaning of the section.

Would the Minister indicate what is the difference?

There is no difference. It is just to make it clear that the second "which" in paragraph (i) of section 3 (3) refers back to "lease" and not to "land". There is a similar point on paragraph (ii). It is purely a matter of getting the grammar right.

Parliamentary draftsmen worrying about the grammar?

Parliamentary draftsmen nod on occasions.

Yes, that is what we are here for.

Amendment agreed to.
Government amendment No. 9:
In page 5, line 8, to delete "and" and substitute ", being a lease which".
Amendment agreed to.
Amendment No. 10 not moved.

I move amendment No. 11:

In page 6, section 5, between lines 48 and 49 to insert a new subsection as follows:

"( ) Where land held under a lease is indemnified against payment of any part of the rent payable under the lease by any other part of the land held under the lease, the apportionment of the rent reserved by the lease shall in respect of land so indemnified be nihil."

This is a section where we are providing for the apportionment of ground rent and we would want to walk cautiously here, especially if the Bill is enacted finally in the way in which the Minister proposes to have it enacted. I have already indicated what the position is where property which is held under a lease is subdivided into a number of lettings; sometimes when that happens, at a future date when some one owner of two properties is selling one of the properties, in order to get a better price, the property he is selling is sold free from rent and the rent that was payable in respect of the property being sold is charged upon or indemnified by the property retained by the person selling. The correct way to do that is to get the consent of the lessor to the apportionment of the rent.

Very frequently that has not been done and, therefore, when it comes to apportioning the rent that was originally reserved by the lease, the authority dealing with that will find that all the property under the lease is subject to the rent. However, private arrangements have been made as between owners of the property, the tenancy interest in the property, that part of it should be indemnified against the payment of any rent and should be free of any rent. That is a transaction which has been provided for and, in effect, the rent of that property has already been bought out by the person who now holds it free of any rent, though vis-à-vis the landlord that property is still liable to pay the whole of the rent under our ordinary law of landlord and tenant.

As matters stand, it is within the powers of the person apportioning the rent under this section to apportion rent on property which might not be paying rent but which in fact is liable to rent by reference to the landlord, thus apportioning part of the original land reserved by the lease. I want to say "No", that should not be so, that in a case of that kind, where the property has been indemnified against payment of any part of the rent, when it comes to apportionment, the apportionment in respect of that property should be nil. That is only fair and reasonable as far as the owner of that property is concerned because he is all the time paying; he paid a higher price by reason of the fact that there was no rent payable in respect of the property.

This is an amendment which will put the law beyond any doubt for those who administer it, for those who interpret it and for those who will try to benefit by the provisions of this Bill. I would urge the House to accept the amendment.

I think Senator O'Quigley has been repeating the point be made on the Committee Stage and, in replying to him, I shall be repeating what I said then. There are many variations in landlord and tenant arrangements, and I am quite certain that in the sort of case outlined by Senator O'Quigley the county registrar would, in fact, do what the Senator seeks to have done by way of his amendment and that the apportionment would be nil. I think it would be better to leave it to the discretion of the county registrars whom we must assume to be reasonable men. It is perfectly obvious that in the situation outlined by Senator O'Quigley the county registrar would make a nil apportionment.

There are cases where that might not be the right thing to do, where the lessor could be prejudiced. Take a case where a speculator might develop a scheme in such a way that the full rent might be payable out of some worthless part of the property with an indemnity against payment of any rent by all the valuable properties in the scheme. If, on apportionment, the county registrar had no option, as suggested by Senator O'Quigley, but to apportion all the rent to the worthless portion, the lessor would be left with no security at all for his rent. On balance, I think it is better to leave it to the good sense of the county registrar.

There is a great deal of force in what the Minister has said about the exceptional case where the whole of the rent would be charged upon the most worthless part of the property under a lease, but that certainly would be an exception and a very rare exception. What I am concerned with here is what one finds very frequently. The Minister says the county registrars are very reasonable men. Of course they are reasonable men, but the most reasonable arbiters have given unreasonable decisions because the law makes them do it. One often hears judges saying in court: "That may not sound very reasonable but it is the law." Where we are dealing with property rights, I think that to give to a non-judicial person such as a county registrar the right to make property, which has never been liable to any rent, liable in future to pay a rent, is certainly treading a long way away from respect for property rights guaranteed to us under the Constitution. To say that a county registrar will have the power under this Bill to do so will cause many people who are concerned with the Constitution and the safeguarding of the rights of citizens to wonder where we are going and what value our Constitution is. I should like to press this amendment because for a county registrar to be enabled to impose a rent on somebody who has not been liable to the rent up to now is too great a power.

Amendment put and declared lost.
Government amendment No. 12:
In page 7, to delete lines 30 to 32, and substitute "of having a fiduciary capacity or a limited estate."

An Leas-Chathaoirleach

It is suggested that amendments Nos. 12 and 22 be discussed together, with separate decisions, if necessary.

This amendment is identical with No. 22 and is mainly of a drafting character, but perhaps I should explain it to the House. It is a question of streamlining the drafting. It will be seen that the effect of the amendments is to delete the reference to an infant and therefore remove from the county registrar the power of authorising an infant to convey or join in conveying the fee simple. The position will now be that in the case of an infant who is not a ward of court, the infant's guardian — his parent or a guardian appointed by the court — may convey the fee simple; or the county registrar may use his powers under subsection (2) of section 8 to appoint an officer of the Circuit Court to execute the conveyance in the name of the infant. Where the infant is a ward of court, then, under the new subsection proposed to be inserted in section 8 by amendment No. 21, the county registrar will exercise the powers of appointing an officer of the court to execute the conveyance only by leave of the High Court or, if the infant is a ward of the Circuit Court, by leave of the Circuit Court.

The position is the same in relation to apportionments on behalf of infants under section 14, where the power to authorise an infant to join in the apportionment is being dropped and the infant's incapacity to join in the apportionment is being remedied in the same way as indicated for the case of an infant required to execute a conveyance of the fee simple.

Moreover, the reference in the existing draft of subsection (1) of both sections 8 and 14 to a personal representative being incapable in law of conveying the fee simple has not been correct since at least the coming into operation of the Succession Act, 1965, on 1st January, 1967. The similar reference to a trustee being incapable in law of conveying the fee simple or, in the case of section 14 (1), being incapable of joining in the apportionment of a rent, does not seem to be quite apt, notwithstanding that it has appeared in the 1931 and 1958 Acts, because a trustee should have these powers in the ordinary way.

Therefore, it is a question of streamlining the drafting and also largely meeting the views put forward by Senators in regard to the infant's position and preserving the position of the courts in regard to wardship.

This probably does effect some improvement in the section. However, I am sorry Senator Sheehy Skeffington is temporarily absent from the House because I think he would revel in the bad English as contained in this section. One can understand the amendment down to a particular point. We are deleting lines 30 to 32. The section will then read:

Where a person who is required by this Act to convey or join in the conveyance of the fee simple in land is, by reason of having a fiduciary capacity or by reason of being an infant or by reason of having an estate for his life. ...

Or by reason of restrictive covenants.

It seems to me extraordinarily clumsy English to say a person "by reason of having a fiduciary capacity". We use the phrase "fiduciary relationship" constantly in law. One finds it in the law reports, but "having a fiduciary capacity"— we all have a fiduciary capacity, but it is the fiduciary relationship we are concerned with. We all have the capacity to have a fiduciary relationship to X or Y. I do not think the phrase "fiduciary capacity" is the kind of one to win laurels for any parliamentary draftsman. However, there is nothing we can do about it at this time.

Would it be as old and rare as nihil?

Amendment agreed to.

An Leas-Chathaoirleach

It is suggested that amendment No. 13 and a large number of following amendments be debated together, with separate decisions if necessary: amendments Nos. 13, 14, 16 to 18, 23 to 28, 32, and 37 to 39.

I move amendment No. 13:

In page 7, lines 35 and 36 to delete "the county registrar for the area in which the land is situate" and substitute "the Court".

In all these amendments I am seeking to do what I understood the Minister indicated he would accept on the Committee Stage. I am not going to delay the House by repeating what I have said already in relation to the position of the county registrars under this Bill. The Minister has said there is almost an infinite variety of relationships and complexities in the law of landlord and tenant. If one looks at section 3 of the Bill, one sees that a county registrar will have to determine whether a person holds land under a building lease or under a proprietary lease and a whole lot of other things. He will have to make up his mind what to do in the case where the originals of leases cannot be got and where only copies of them are to be found.

I am not so much concerned with that aspect of it. In this Bill we are undoubtedly dealing with property rights. I do not say we are not dealing fairly as between landlord and tenant, but there will be cases where disputes will arise. Where these disputes arise, it is my clear view that these disputes should be litigated only before a county registrar if there is agreement between the parties that he shall be the arbitrator; and if there is not agreement as to the manner of determining these disputes, they should be litigated in the courts.

There are other provisions in the Bill which prevent any undue costs being piled up against either landlord or tenant. It is always necessary in this House, and I think elsewhere, for people who are lawyers to disclaim any financial interest in amendments of this kind. There will not be any money in the operation of this Bill as far as the appearances in court are concerned. Even if there were, to safeguard against that, I have provided in one of these amendments — I think it is one of the group we are dealing with at present — that if we allow these matters to go to court, the hearing will be in chambers. That is the procedure the Minister himself devised and the House accepted in respect of the Succession Act — that a speedy, not costly and effective means of determining disputes between parties is by having them dealt with in chambers before a judge.

I cannot understand how it can be contended that where you are dealing compulsorily with property rights, where you are compulsorily alienating the property rights of another person, that does not come clearly within the provisions of the Constitution which guarantees the right of private property to all citizens. That being so, I am concerned that, bit by bit, the powers of the courts in this country are being eroded. That concern is not mine alone; it is a concern of the members of the legal profession of all shades of opinion and all Parties that this gradual erosion is taking place. The disquieting thing about it is that nobody seems to mind. This type of procedure adopted here is like a bit of rust occurring on a piece of metal; nobody takes much notice until one day you find it has corroded or is corroding the whole piece of metal, whether a bucket or a coal scuttle or something else. One finds at that stage, as metal polishers will tell you, it cannot be arrested. Here, bit by bit, we are getting away from the court and from the protection which the Constitution gives to private and personal rights such as the right to property.

For quite some time I was disposed to take the line that there is nothing much that one person can do about it even with the support of my colleagues on this side of the House, but I have been pressed by people of varying shades of political opinion to speak out against this type of provision. I do so voluntarily because these are my views but I do so with more vehemence and more confidence because I have been asked to do so by people of all shades of opinion. I deeply regret that the Minister for Justice who is concerned, who should always protect the rights of private individuals from attack from criminals, by unjust laws and their operation, should be himself the instrument which, in my view, is gradually bringing about a diminution of the powers of the courts.

The only reason one needs to have respect for the courts is that ultimately the protection of private rights and of our democratic system lies in the courts, and if we remove bit by bit the power of the courts and make these inroads into the Constitution, the time will come when we shall wake up to find that the courts have been paralysed or that their area of activity has been greatly attenuated and that many things which people ought to be able to redress in the courts founded under the Constitution and established by Act of this Parliament are being determined by civil servants, whether of the Department of Justice or Social Welfare, or by local government authorities or elsewhere. We shall find that property and other rights that people have are being determined by civil servants who are not answerable to the public and who cannot be got at. One finds that happening increasingly and it is for that reason I put down these amendments.

On the previous occasion I think it was Senator Nash on the other side who suggested that the District Court might be the most appropriate court in which to have these matters litigated as between the tenant and the landlord. The Minister said that if he was having any court, it would not be the District Court for a variety of reasons which he gave, but that it would be the Circuit Court. It is for that reason of ever wanting to meet the Minister as the Minister has, in some cases even on this Bill, met us, that I put down these amendments to provide that all these matters would be determined by Circuit Court judges through the inexpensive procedure of having them dealt with in chambers.

Doing that, I know, is not gratifying the Circuit Court judges who, I am sure, would not thank us for the increased work that we are making as a result of this legislation. At the same time, I do not think that will have the slightest effect on their position — they will administer the law as enacted by the Oireachtas — but what I am trying to do is to go the distance with the Minister of saying that these matters should be dealt with in the Circuit Court. I do not mind if we go the further distance of saying that there will not be an appeal to the High Court from the decision of the Circuit Court judge in chambers. What I am concerned about is that we shall be seen, in this piece of legislation when dealing with a very fundamental thing specifically provided for in the Constitution, to ensure that property rights are being disposed of and finally determined by the courts.

The Minister on the last occasion argued that the county registrar would be concerned under this Bill merely with determining values. That was an oversimplification. It is the kind of clear expression of view of which the Minister is so admirably capable from time to time. That, of course, is not the position. He will have to determine apportionment and leases; construe various leases and he will very often have to decide whether the person is properly the tenant as he alleges he is when somebody may say: "You are not the tenant; somebody else is the tenant." He will have to construe the whole law of property and landlord and tenant law as well as the very difficult sections of this Bill which is not a simple one in some provisions of some of its sections. It is not correct, therefore, to say that the position of the county registrar will be the same as the position of an arbitrator under the Land Acquisition and Compensation Act of 1919 who is determining the value of property. That is a very simple matter if he is determining a whole lot of rights and the amount for each person where there are superior interests involved, the amount that each person is entitled to get.

I cannot think of anything more clearly involving property rights than this Bill. It is well recognised in the law of landlord and tenant in relation to ejectments that the tenant is entitled to plead every defence in law and equity. The reason is that you are dealing with the home or business of an individual. Equally in this Bill we are dealing with the homes and businesses of individuals and perhaps their livelihoods in the case of landlords. I can think of nothing more fundamental in the law of property than that with which we are now dealing. I hope at this stage that the Minister will come the distance in meeting us. If he finds afterwards that this is not a workable system, the matter can be looked at in another way but I am not prepared to agree that a person who is not sworn to administer justice according to law — which the county registrar is not — and that a person who may have for 20 or 30 years, depending on the length of time since his appointment as county registrar, very little acquaintanceship with the law of landlord and tenant, should be constituted the authority under this Bill to determine property rights.

That, to my mind, has been and should always be a function of a court, especially where as in a case like this, the property is being compulsorily taken from the landlord. We have agreed upon that but, having done so, we should decide that what remains to be determined — who is entitled to what amount of money to be paid — should be the function not of a person who is not sworn to do justice but of those who are sworn to do justice, the judges of the courts. That is what they were created for and what they are required to do. I have spoken rather too lengthily on this. I trust the Minister will accept this amendment and I hope that the nominee of the Incorporated Law Society, Senator Nash, and my other colleagues on the other side of the House will lend their powerful support to the arguments I have been making in favour of this amendment.

I should like to second the amendment, not at any length, because Senator O'Quigley has dealt with the matter fully. I should like to express my disappointment that the Minister has not, as a result of the recent consideration he was good enough to undertake after Committee Stage, found it possible to accept the amendment which was pressed effectively and cogently from both sides of the House to a degree which did at least get from him an agreement to reconsider the matter. I would be interested to know why that reconsideration has proved negative, in view of the cogency of the arguments put forward. I am disappointed it should be so and would press him, even at this stage, to reconsider his decision in the matter, in view of all that has been said in keeping this matter with the courts, which will not add to expense or, because matters will be heard in chambers, give undue publicity. None of the arguments put forward by the Minister has convinced us. I would hope that, even at this stage, he could be persuaded to change his mind. I trust, on this occasion, it is not the parliamentary draftsmen who will prevent him from agreeing.

Is it not a fact that this section will be putting the registrar in the position of making a decision on law? Registrars, generally speaking, are either barristers or solicitors; they have a knowledge of the law——

Always lawyers of considerable standing.

At that stage they had gone out of ordinary practice of the law.

So have the judges.

But, under the Constitution, a judge is compelled to make decisions in relation to legal issues, legal differences. Here, we have a situation where this man is not an appointed judge; he is a county registrar. It is proposed now that he step into what was formerly the position of a judge in making a decision in relation to the interpretation of law.

Senator O'Quigley has very clearly set out all the different problems which can arise and which must be clarified before that decision is given by the county registrar. Of course, the judge on the Bench must look into all those legal aspects before he gives his decision, too, but then he is appointed for the purpose of making these decisions in relation to the various laws. I feel you are putting the registrar into a rather invidious position, that is setting him up as a judge to make decisions which normally are made from the Bench.

May I ask the Minister if he is making actual provision in this for extra staff and assistance for the county registrars. I know that at least some of these officers are grossly overworked at the present time and there has been a slowness on the part of the Department, or the central power to sanction additional staff when they have been requested so to do. Has the Minister looked into this very important matter?

I have had very close discussions with county registrars throughout the country. Their association welcome this work and feel themselves competent to carry it out.

I find myself in the position of supporting this Bill and almost all of its provisions; at least the intention of the Bill is something this House must, obviously, pass. At the same time, as I indicated on Committee Stage, I find myself rather anxious about the provisions which give this power to the county registrar. I must indicate that if the matter is pressed for amendment, I will find myself obliged — in favour of the Bill as a whole — to vote against this amendment.

There are many aspects of it I should like the Minister to be aware of. In relation to the costs, which have been referred to here, I think Senator O'Quigley has made a suggestion of hearing in chambers. I would not go along with the suggestion of hearing in chambers, merely in relation to costs, because a hearing in chambers is appropriate to confidential matters and, in the present practice of the courts, it is used for certain matters of a confidential nature and revenue investigations of one kind or another. I cannot see that a matter like this would be a proper case for hearing in chambers. I would say that the court hearing or the arbitration in a case of this sort — on the very odd occasion when it does go to arbitration — would be only a small fraction of the cost involved in cases of this sort, that is the costs involved in the actual investigation of title itself, the execution of title, of preliminary matters relating to title, whether or not it is dealt with by the county registrar or judge. Those are the matters which will be costly in this case. The arbitration fee, whether before the court or county registrar, can be fixed according to scale and, if that is the suggested difference in costs or expense in this case, it is not a very valid one.

The Minister has indicated that the county registrars feel competent and well equipped: experience alone can answer that. I certainly do not want to cast any reflection on the ability of county registrars but I do say this is a very specialised field, a field in which many lawyers would not offer themselves as being experts. In so far as we will now be dealing with what I might call multiple interests in leasehold and ground rents, rather than the registered interest one finds and with which the county registrars' staffs are familiar, I very much doubt whether they will be capable of dealing with these. Certainly there are provisions in this Bill which go further than any provisions introduced in any other Bill. It is not a question of declaration of title, such as we might have had in the Registration of Title Act. This is a question of a judicial determination between the rights of various people. Under the Registration of Title Act, as I see it, it may be a limited function as defined by the Constitution, but here you have two people, certainly not a common right, litigating or arbitrating in a case of this sort. That is a totally different question from a man coming before a registrar and saying: "There is my title; register me". There is no one there on the opposite side to question his title.

Above all that, there is a provision in this Bill which specifically states that where questions of law are being litigated or considered, the county registrar may provide for fees for counsel. This, in itself, is an open admission that here we will be concerned with questions of law coming within the power of the county registrar to determine. There are other powers which he has, for instance, the power to penalise in costs. I am not aware of any similar person having any similar power, which again would involve a review of the whole law relating to this particular Act, as to whether or not a person has acted within reason within the terms of the Act.

For all of those reasons — and I do not think the question of costs enters into this one way or the other at this stage — I would certainly hope the Minister might see fit to accept the spirit of this amendment but, as I indicated, although being in support of the Bill as a whole and its provisions, I would certainly feel obliged to vote against this if the matter is pressed for amendment.

I should mention as a background to this matter that I have over the past 18 months received numerous deputations representative of the landlords' interests, the tenants' interests, business interests, and various other organisations such as those of chartered surveyors, valuers and auctioneers who were all concerned with this Bill. I received numerous representations from lawyers interested in the matter as well. No one has pressed this point with me. In the Dáil it was generally welcomed by Fine Gael and Labour. There was no particular pressure about this point at all in the Dáil.

The whole trend of the representations made to me, and of the comments made in the Dáil, in the public press and elsewhere, on the Bill, has been one of welcome for this expeditious and effective way of deciding the issue as to the amount of compensation to be paid to the landlord by the new tenant who is buying it. There was general appreciation of the fact that the whole purpose of the Bill would be frustrated if there was an expensive court procedure whereby the tenant would be put to excessive cost, in the event of dispute, to enable him to buy out the ground rent. In that situation the cost aspect would be completely oppressive. It was important in framing this legislation that an expeditious, effective and inexpensive way should be found in which the arbitration could be carried out quickly, by a man like a county registrar, between the tenant and the landlord. That was our thinking on this and until we arrived here, and it was generally welcomed.

I want to refer to one matter which was raised by Senator McDonald. I have had correspondence from the County Registrars' Association, who did not take kindly to some of the remarks made about them here and elsewhere.

Is this in relation to this matter, because I am aware that most of the registrars are very interested in this?

I have with me a letter from the County Registrars' Associations. I shall not quote what they say about remarks made by some Members of the Seanad. They said that they hoped the Minister would be able to deal with these criticisms and reflections.

The County Registrars' Association welcome this provision, and welcome the Bill, and feel that this work which is being placed on them is appropriate to their responsibilities. They have not objected to me about what might be regarded as an extra burden on them. Arrangements may have to be made about staff, as was mentioned by Senator McDonald, but that is another day's work. In principle the County Registrars' Association welcome this Bill and the additional duties imposed on them under it.

As regards the general principle of statutory arbitration, this is another form of statutory arbitration. It is not something new or unique that I am bringing in here. It is not a new principle which is eroding people's rights. It is another form of statutory arbitration which is universal in nearly every system in the world. Provided there is a proper appeal procedure to the courts, arbitration is now regarded over a wide field as being the appropriate way to assess compensation as between parties in an expeditious and effective way. This is another form of statutory arbitration and it is a form of statutory arbitration that should be welcome to Senator O'Quigley, Senator FitzGerald and some other Senators who are critical of this aspect, in that the man appointed to be the statutory arbitrator is a man of considerable legal standing. A man can be appointed as a county registrar only after a certain number of years in practice. Many of them are equal in stature and ability so far as the law is concerned to many of our judges — without reflection on either group. They are, in fact, judicial officials of the Circuit Court. They are not just faceless men as some bureaucrats are described. There are officers of the Circuit Court, men of proved legal standing, appointed after a certain number of years in practice as legal practitioners.

In any form of statutory arbitration — and we are setting no precedent in that respect — surely this is precisely the one that should appeal to people who are interested in the part the legal profession and the courts play in our whole system of law and justice. Surely this is one form of statutory arbitration — arbitration by officials of the Circuit Court — that should appeal to people who think the way Senator O'Quigley has expressed himself. Far from being critical of it, it should be welcomed as a form of statutory arbitration which goes further in that direction than any other so far being exercised in this State.

I could go back over the whole scheme of statutory arbitration. It was confirmed by an Act passed by the inter-Party Government in 1954, the Arbitration Act, 1954. The Taoiseach at that time was a lawyer himself. Many eminent lawyers served in that Government. The Arbitration Act, 1954, consolidated the arbitration that had operated for a long number of years. In that Act there is certainly a more extreme form of arbitration than is proposed in this Bill. In the 1954 Act where property is being compulsorily acquired by a local authority, there are more drastic forms of interference with property rights than anything in this Bill which gives very reasonable compensation in regard to compulsory purchase.

In the case of the compulsory acquisition of land, for housing purposes or road widening purposes, by the local authorities the person from whom the property is being acquired has no right at all to resist the action of the local authority if the local authority deem it proper that the land should be acquired for housing purposes or road widening purposes or a number of other purposes. The ESB can purchase land compulsorily in what might be described as an arbitrary fashion.

Who owns that land?

We have to face the facts of life and some form of compulsion is necessary if progress is to be made. Some form of effective and inexpensive arbitration is necessary. I am pointing out that this is one of the facts of life in the age in which we live. There is no point in going back. The arbitration procedure was grouped together and consolidated in 1954 by a Government which could be described as a lawyers' Government. Under the 1954 Act the decision in regard to the person whose property is taken in what might be described as an arbitrary fashion by the ESB or the county council is taken by a person who is not an official of the Circuit Court and has no judicial function. He may be a lawyer of any number of years standing. The people who were appointed to do the job probably do it in an excellent manner. They are technical people, officials of the Department of Local Government, engineers and the officials of the various local authorities. They are the people who decide on very serious cases relating to compensation to be paid, in relation to who is to be compensated.

In this case the arbitrators are not in any sense obliged under the Act to be people of any legal training or officials of the courts. Their decisions can affect enormous sums of money and they can affect substantial property rights.

It is nonsense to go on with all these old-fashioned and Victorian eulogies about the courts and about lawyers. I am a lawyer but one must be practical in 1967 and recognise that the eroding of the functions of the courts has been going on progressively since Victorian times.

It is one of the facts of life in the modern world that arbitration as a system side by side with the courts obtains in every country in the world where the rule of law obtains, provided, of course, that there is an appeal procedure. Here we have an appeal procedure to the Circuit Court.

This, of course, is precisely what was envisaged by Article 37 of the Constitution when it provided that limited functions of a judicial nature could be exercised by bodies outside the courts. It envisaged statutory arbitration as it existed then in this country and as it has been extended since by the 1954 Arbitration Act and as it obtains in every country in the world where the rule of law exists — a system of arbitration such as we envisage in the Bill. It is a much less harmful position from Senator O'Quigley's point of view than that obtaining as a result of the legislation passed by a Government of lawyers in 1954. Lawyers, as a Government, know they have to govern and realise that government must go on. These are all practical considerations I have been referring to.

There is one other point and it might be no harm to mention it. A lot of play was made during Committee Stage about the case of O'Farrell and Gorman. There has been no other case along these lines since, though a disciplinary authority is exercised by a number of professional and trade associations. In that case the phraseology used by the judge, Mr. Justice Kingsmill Moore, in deciding whether powers of this kind were proper to be exercised by the courts — I shall refer to the exact phraseology in a moment — shows he was thinking of very extreme cases affecting the fundamental liberties of the people. He was referring to the Incorporated Law Society Disciplinary Committee and the test as to whether the exercise of such power must be limited. I quote from the relevant portion of the judgment:

The test as to whether a power is or is not limited in the opinion of the court lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far-reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised, they cannot properly be described as "limited".

That sort of situation bears no relation to the situation envisaged here in regard to the functions the county registrar will be exercising under this Bill. Mr. Justice Kingsmill Moore took the view that taking a solicitor's livelihood away from himself and his family for life was not a proper function to be exercised by a limited body like the Disciplinary Committee. One could use that very extreme language in order to bring that type of proceeding out of the limited category but one cannot equate it with the situation in this Bill which merely introduces another form of statutory arbitration as between contending parties on the matter of proper compensation, arising out of compulsory rights, to be given to a tenant. It really extends, in a more modified way and more appropriately to what Senator O'Quigley has in mind, to all functions of compulsory acquisition by State and semi-State bodies and local authorities.

It is always a pleasure to listen to the Minister because he expresses his views clearly and it is always easy to come to grips with them because one knows exactly where the fault lies and where he is wrong. I propose to show how wrong he is in nearly everything he has said and I shall quote chapter and verse as I go along. Perhaps Senators on the other side thought of how well he dealt with the arguments made. I regret that Senator Nash, the nominee of the Incorporated Law Society, is not here to give me the support his Society would wish him to give me on this Bill. He has left the House. The Minister says he has met landlords, tenants, valuers and so on——

And lawyers.

——and lawyers. Of course he has. It is the function of the Oireachtas under the Constitution that it shall not enact any legislation contrary to the Constitution or any of its provisions and it is our job when passing legislation to ensure that it accords with the Constitution.

I am not concerned with the views of landlords on this matter because they are not concerned with the constitutionality of this Bill. What they are concerned with — equally the tenants and the valuers — is to get the best they can out of the Bill. I am sorry Senator O'Kennedy has now left the House because I wanted to say this to him: I raised the question of costs to make it quite clear that I wanted to keep the costs of this procedure as low as possible. I know the Minister likes to refer to Fine Gael as the lawyers' Party and to the inter-Party Government from 1954 to 1957 as the lawyers' Government. There are more lawyers in Fianna Fáil than in either of the so-called lawyers' Governments. The Taoiseach is one; Deputy Colley is one; the Minister for Justice is one; Deputy Ó Moráin is one——

Do not forget Deputy Haughey.

——and Deputy Haughey has the designation and the reputation——

Perhaps the Senator would refrain from criticising Members of the other House.

I am merely showing the distinction between the socalled lawyers' Government and a non-lawyers' Government——

Personal reflection is not in order.

I withdraw entirely. The Minister for Finance is not a practising lawyer and therefore I do not blame him in respect of anything he ought to know as a practising lawyer. That is the present lawyers' Government, and good luck to them: they are probably a better Government than those which were not lawyers' Governments. Lawyers have the merit of being in touch with a wide variety of people every day in the course of their practice. I wish to make it quite clear that I am not concerned with costs for the legal profession and that that was not why I raised the question. It does not matter what fees one pays to an architect or the five per cent on a sale of £3,000 or £5,000 to an auctioneer. Nobody question them. But when it comes to lawyers' fees, which are the only fees in the State regulated by law, then people think lawyers are out to gobble up their property. That does not happen because it cannot happen.

Otherwise it would happen?

It cannot happen. When the Minister said this Bill received uniform praise I agree: it did, of course, from the Press. It received praise from us here, from me, in respect of certain aspects. The Minister did not mention these aspects or this praise. We agree this is an expeditious way to fix compensation. However, nobody among tenants, valuers, auctioneers, has considered the constitutionality of appointing county registrars compulsorily to arbitrate on property values and property rights. The Minister said that was adverted to in the Dáil. Is it not so that the Seanad exists to pick up the things the Dáil has not time to deal with?

There was a very full Committee Stage debate in the Dáil.

It is all the more remarkable then that 19 amendments were made on Committee Stage in this Chamber.

And 42 on the Succession Bill.

I am a reasonable man.

I have become sick of that. I am praising the Minister for that but that does not get away from the fact that it is our business in this Chamber to look at those Bills, as they come from the Dáil, and then to do what we can with them. It is entirely to the Minister's credit that we have made the kind of progress we have on this amendment and that this Bill will leave this House in a better condition than it was in when it came here. If Senator O'Kennedy is concerned about this question of being in chambers, we will not vote on that and we will not move that amendment until later on. We can leave that out if it will meet his objection.

The county registrars will welcome this. I have said before, and I want it to go on the records of this House, that if the county registrars are burdened with this work, so surely as a year and a day passes after they have begun to operate this, they will put in for increased salary from the Minister for Justice because of the increased work of a judicial character which they have to perform under the Bill. There is no doubt in the world about that. The county registrars have to work from 9 a.m. until 5 o'clock in the afternoon five days a week. If their work increases, they are entitled to go to arbitration and they will be given an increase of salary. Of course they want that.

The district justices will welcome the increase in the jurisdiction of the district court because it gives them more responsible work. When they have to do this extra work, they will be entitled to an increase in salary. Of course the county registrars welcome this and they object to any suggestions that they are not competent to do the work. I am certain they did not do their work by reading all I had to say on the Second Stage and on the Committee Stage in regard to this matter. The criticism I made referred only to the position of the county registrars under this Bill. I do not want to retract what I have said. I am really concerned with the unsuitability of county registrars, whatever their abilities may be, to take on to themselves the judgments proposed to be given to them under this Bill.

The Minister spoke about statutory arbitration. I do not know what that phrase means but the Minister seemed to define it in some way by referring to the Arbitration Act, 1954, enacted by a lawyers' Government. Surely the Arbitration Act, 1954, has nothing whatever to do with this Bill? The Arbitration Act, 1954, if the Minister looks at it, is merely concerned with the procedure to be employed in default of agreement under a different procedure between parties who have agreed to go to arbitration. Under this Bill there is no such thing as agreement to go to arbitration. The landlord says: "I am not satisfied with the apportionment" or "I am not satisfied that you are entitled to this money". That body find themselves before the county registrar but the Arbitration Act, 1954 section 2 says:

"Arbitration agreement" means a written agreement to refer present or future differences to arbitration, whether an arbitrator is named therein or not.

It is when there is agreement between two parties to go to arbitration that the provisions of this Act come into operation in default of agreed machinery.

Compulsory arbitration is also covered.

There is nothing compulsory in this.

Read section 48.

The Minister is now talking about another thing, and I want to come to that. In the case of property being compulsorily acquired by local authorities, everybody agrees that the public interest must always give way to private interests. We all accept that as a principle in 1967. That was accepted away back in 1919 and it was accepted in the days when railways and canals were first made. It is not even Victorian; it is pre-Victorian. It is always accepted. It is accepted in our Constitution.

I am really concerned in this particular Bill about defending the Constitution and defending the people's rights. I want this House to appreciate that when you enact legislation of this kind, you are enacting legislation of a very dubious character. When the Minister refers to compulsory arbitration in relation to property, he is referring to an Act which was enacted away back in 1919 and which fixed the price of land. Mind you, the Minister, or his predecessor not such a short time ago had to go to the High Court in connection with the learned Judge Comyn and the Minister for Justice. In order that Judge Comyn should have his compensation in relation to mines, which were taken over during the emergency, he referred to the Land Act, 1919. In this case, under the 1919 Act, he would have got considerably less than what he would have got under a different approach to valuation if the valuation were decided by the court. Therefore, when you are talking about the 1919 Act, let it be understood that you are talking about an Act which in many respects is not fair to property owners. I merely want to point out here that there is no virtue to be derived from saying that property may be valued under the 1919 Act.

I remember the Minerals Development Bill which was passed in the early 1960s. I moved an amendment to that Bill because I held the view that the small farmer with a valuation of £2 15s or £3 10s gained very little under it. Therefore, there is nothing to be derived from the 1954 Act. That is purely a machinery Act and it provides the procedure to be followed in default of agreement. The Minister makes bold to say that county registrars are as well qualified in the law as judges in the Circuit Court.

Some of them and some judges.

I do not at all agree, not for a single moment, because judges and justices have to bring their minds to bear upon different types of legislation every day. They have to deal with evictions, the Social Welfare Acts, offences of all types, in addition to road traffic and other matters of that sort. They are in contact with all types of people during their work. A county registrar has nothing like the experience a district justice has. I do not think they would claim that either. They certainly could not substantiate it and I have little doubt that if the Minister's office were dealing at arbitration with county registrars, this argument would be adduced against the county registrars making their claim. The important feature about the county registrar is that he can be approached and subjected to pressure.

That is a shocking allegation to make against professional people.

Nobody in this judge of any court. This is the big distinction that has to be made.

That is a frightful allegation to make.

country will dream of saying that of a

It applies even to Garda superintendents.

I know of nobody——

It is a frightful allegation.

The distinction between a member of the judiciary and a county registrar is that one is sworn in accordance with the Constitution to uphold the law and administer justice in accordance with the law but the other takes no such oath. The county registrar is entirely answerable to the Minister and the Government; the judges are not. County registrars are bidden to go here, there and everywhere, if the Minister for Justice thinks fit. He appoints them and he removes them from office with the concurrence of the Government. No such thing can happen to judges whose tenure of office is secure under the Constitution. That is the difference between district justices and justices of the other courts and county registrars. There is no use in the Minister saying they are officers of the court. That is a fine phrase but in terms of the law and the Constitution it means nothing. A civil bill officer is also an officer of the court.

The Minister refers to the O'Farrell and Gorman decision. I did not bring in that decision today because I dealt with it last week. I refrained from bringing it in because I hoped the Minister might accept the amendments suggested. Now that he refers to the O'Farrell and Gorman decision, I want to make quite clear what that decision signified. Once the determination of the inferior tribunal, in this case the Disciplinary Committee, was in relation to the status of a person, even though there was a right of appeal, as there was, to the High Court, they had usurped the judicial function, and the section of the Act under which the Committee was established was repugnant to the Constitution. What the Minister has read out from the judgment of the court, by Mr. Justice Kingsmill Moore, is only part of the judgment. They referred also to Article 37 of the Constitution and very quickly decided that the Disciplinary Committee of the Incorporated Law Society could find no authority for its existence under that Article.

My quotation was the key to the whole decision.

It was not. That was the end result. It did not argue that Article 37 justified the existence of the Disciplinary Committee as being a court or a body with limited functions, and the Supreme Court held that Article 37 did not apply to a decision of the Disciplinary Committee without any appeal determining the status of the solicitor.

It is not right for the Minister to say that it took away that right. These are florid phrases used by the Minister to give substance to his argument. There was a right of appeal and solicitors have often been suspended for three or six months and have been restored again. Even though it was only suspending a solicitor for six months, that particular Committee would have been invalid, even though it was determining the status of its solicitor by striking him out for all time.

I shall not go further into that. I am quite satisfied that a case has been made for leaving this power where it belongs, the Circuit Court. I hope Senators who agree with that view will give visible expression to their support of this amendment.

Question put: "That the words proposed to be deleted stand".
The Seanad divided: Tá, 23; Níl, 12.

  • Boland, Gerald.
  • Brennan, John J.
  • Browne, Seán.
  • Crowley, Patrick.
  • Eachthéirn, Cáit Uí.
  • Egan, Kieran P.
  • Nash, John Joseph.
  • Ó Donnabháin, Seán.
  • O'Kennedy, Michael.
  • O'Reilly, Patrick (Longford).
  • Ryan, Eoin.
  • Ryan, James.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Honan, Dermot P.
  • Killilea, Mark.
  • McGowan, Patrick.
  • Martin, James J.
  • Ryan, Patrick W.
  • Sheehy Skeffington, Owen L.
  • Sheldon, William A.W.
  • Teehan, Patrick J.
  • Yeats, Michael.

Níl

  • Carton, Victor.
  • Conlan, John F.
  • Dooge, James C.I.
  • FitzGerald, Garret M.D.
  • McDonald, Charles.
  • Malone, Patrick.
  • Mannion, John.
  • O'Quigley, John B.
  • O'Reilly, Patrick (Cavan).
  • O'Sullivan, Denis J.
  • Prendergast, Micheál A.
  • Rooney, Éamon.
Tellers: Tá, Senators Browne and Farrell; Níl, Senators McDonald and D.J. O'Sullivan.
Question declared carried.
Amendment No. 14 not moved.

The Chair suggests that amendments Nos. 15 and 21 be taken together.

I move amendment No. 15:

In page 7, section 8 (2), between lines 48 and 49 to insert a new paragraph as follows:—

"( ) Paragraph (a) of this subsection shall not apply in the case of an infant or a person of unsound mind who is a ward of court or in the case of a bankrupt save with the leave of the Court having jurisdiction over the ward of court or bankrupt, as the case may be."

In section 8, we have now apparently decided that the county registrar will make the various determinations which fall to be made under the provisions of this Bill. In section 8, the county registrar has been given authority to make orders which would cut across the jurisdiction of the President of the High Court who has the care of wards of court, whether they be infants or persons of unsound mind, or the Circuit Court where it has jurisdiction over such people. I raised this matter on Committee Stage. The Minister has an amendment down, No. 21, to deal with the same matter. Unfortunately, in my amendment, I made no reference to the powers of the county registrar under section 14 and I think my amendment is defective to that extent. However, I think that, equally, the Minister's amendment is defective inasmuch as he does not include a bankrupt. The property of a bankrupt, once the order is made, vests in the official assignee and, as I understand the law of bankruptcy—and there seem to be very few people who know anything about it—that property can be dealt with thereafter only under order of the court.

That is why there is no need for it, really, here. It automatically vests in the official assignee.

I do not think the county registrar can properly direct the official assignee to take £X for a lessor's interest in a particular property. It seems to me that as matters stand the county registrar is exercising in relation to property vested in the official assignee the same power as was given to him under the section as passed in Committee to deal with property of a ward of court. There may be some explanation for that. I certainly do not claim to be even knowledgeable, much less expert, in the law in relation to bankrupts. There are very few people who are knowledgeable in that. It seems to me from what I know that the county registrar will be exercising, or can exercise, powers which might conflict with the jurisdiction of the bankruptcy court.

The situation here is that the official assignee is not a person under any legal disability. He really does not arise under the section at all, which is confined to people under a disability or people who refuse to convey the fee simple. Once this is a bankruptcy, there is automatic vesting in the official assignee and from there on he takes over, as it were. There is no need for this procedure in the case of the official assignee. He automatically comes in on bankruptcy taking place and from there on moves outside the scope of section 8.

The situation, as I understand it, is that the property vests in the official assignee where a person is declared to be a bankrupt by order of the court and thereafter while the official assignee is not under any disability he can act only in accordance with directions given to him from time to time by order of the court.

That is right. That is outside the section.

That may be so but it seems to me that if the county registrar wants to have a conveyance made of the fee simple of property by the official assignee in whom it is vested he can direct the official assignee to convey.

No; the official assignee does not come in under this section at all.

But he is in this position, that he can act only under order of the court. Subsection (3) provides:

Where any person who is required by this Act to convey or join in conveying the fee simple in land

and afterwards it is provided where he will not convey—that is subsection (2):

Where a person who is required by this Act to convey or join in conveying the fee simple in land is an infant or a person of unsound mind, or cannot be found or refuses or fails to execute such conveyance,

the county registrar may order him to convey. As matters stand then, if the official assignee says, "No. I will not convey this property", the county registrar can direct him to convey or he can appoint somebody else to do it. That quite clearly gives the county registrar power to direct the official assignee who, in accordance with the law on bankruptcy, is liable to be directed only by the judge in bankruptcy. That is entirely clear.

I see what the Senator is getting at all right but the bankruptcy procedure is a separate procedure altogether. There is automatic vesting in the official assignee on bankruptcy. From there on the official assignee acts in regard to the property and subject to the direction of the court. It is quite fantastic that the official assignee would not join in a conveyance when this Bill will require him to do so, subject of course to the overriding direction of the court. The official assignee is, again, a court officer and acts under the bankruptcy judge and is subject to his directions. That situation is not being interfered with under section 8.

Is amendment No. 15 withdrawn?

No. I should like to have the opportunity of replying to the Minister. The rules of order do not enable me to do so.

Amendment put and declared lost.
Amendments Nos. 16 to 20, inclusive, not moved.
Government amendment No. 21:
In page 8, section 8, between lines 12 and 13, to insert the following subsection:
"(5) A power conferred on a county registrar by this section or by section 14 of this Act shall be exercised in relation to an infant or a person of unsound mind who is a ward of court only by leave of the court of which he is a ward, and the power conferred on the Court by subsection (4) of this section shall be exercised in relation to any such ward who is a ward of the High Court in accordance with the directions of the High Court."
Amendment agreed to.
Government amendment No. 22:
In page 9, to delete all words from and including "being" in line 23 down to and including "other" in line 26 and substitute "having a fiduciary capacity or a".
Amendment agreed to.
Amendments Nos. 23 to 29, inclusive, not moved.
Government amendment No. 30:
In page 10, between lines 51 and 52, to insert the following subsection:
"(4) Whenever it appears to a county registrar for any county that he cannot properly deal with a matter falling to be determined by his arbitration under this Act by reason of the fact that he has a personal interest therein or such personal knowledge of the facts or of the parties as might prejudice his determination of the matter, he shall nominate the county registrar for an adjoining county to hear and determine the matter and, upon such nomination, the matter may be heard and determined accordingly."

This amendment has been put in to meet a point made on Committee Stage by Senator O'Quigley. The effect of the amendment is that it proposes to enable a county registrar who feels that he cannot properly deal with a matter falling to be determined by his arbitration by reason of the fact that he has a personal interest therein or such personal knowledge of the facts or of the parties as might prejudice his determination of the matter, to nominate the county registrar for an adjoining county to handle it. This is a practical way of dealing with the point raised by Senator O'Quigley. I thought at the time there might be another way of dealing with it. This is more appropriate having regard to the general scheme of the Bill.

I think that meets the point.

Amendment agreed to.

I move amendment No. 31:

In page 10, line 52, to delete "35, 36".

In the light of the fact that the county registrar is now to be the determining authority, it seems to me to be desirable to have this amendment which proposes to retain sections 35 and 36 of the Arbitration Act in so far as it will apply to arbitrations under this section. What sections 35 and 36 of the Arbitration Act provide is that the arbitrator shall, if so directed by the court, state any question of law arising in the course of the reference, or any award or any part of an award, in the form of a special case for the decision of the court. I think it is desirable that the county registrar, acting as arbitrator under this Bill, should be empowered to state a case to the High Court for determination in the same way as an arbitrator in a private arbitration could state a case or would be directed to state a case under the Arbitration Act of 1954.

Really there is not much between us. It is a question of procedure. Which is the better procedure? Under the Arbitration Act, as Senator O'Quigley rightly said, there is provision for appeal by way of case stated to the High Court. Here we make provision under section 22 for an appeal to the Circuit Court. Having regard to the general thinking behind the Bill, which is to make procedure in relation to assessment of compensation as inexpensive as possible, I think it is preferable to leave the very few cases that will arise by way of appeal from the county registrar to the Circuit Court since that will be more inexpensive than the High Court and so of greater benefit to the tenant. On balance, I think it is the better procedure.

What I have been seeking to do—it should be obvious from the amendments tabled—is to put beyond all shadow of doubt, in so far as that is humanly possible, what the law actually is, to state the law clearly and thereby keep down the costs of acquiring the fee simple from the point of view of both the landlord and the tenant. I grant you there is an appeal to the Circuit Court but the Circuit Court does not, unfortunately, make decisions which are binding on other Circuit Court judges. A Circuit Court judge is not bound to follow a decision given by a colleague on a particular matter of law. When the High Court makes a decision, that is binding on the whole country and everybody is bound by that decision, unless and until it is reversed. It would bring certainty into the law here.

There is a queer feeling abroad that law must be kept as cheap as possible. That is a mistaken idea. There would be a great deal more certainty and much more clarity if a District Justice, for example, were allowed to go direct to the High Court to get a matter about which he was uncertain determined. In the Arbitration Act, it is provided that private parties may request an arbitrator to state a case to the High Court. That is something upon which the arbitrator can make up his own mind. It should be borne in mind, too, that the arbitrator will not state a case unless he has some difficulty with regard to the law. Even in a matter such as the Rent Restriction Act, designed to meet the less well-off sections of the community, one would expect it to be drafted in such manner as to make the law as clear as possible, but one finds, in fact, that even judges of the High Court not infrequently, when hearing appeals, state a case for decision by the Supreme Court because of some uncertainty. I am at the moment involved in such a case.

This may puzzle the layman: what is a High Court judge paid for if he is not able to determine the law? Very often there are different decisions, decisions shading into conflict with one another, and there is therefore this area of uncertainty. It is in order to get clarity into the law once and for all that a judge of the High Court is empowered to state a case to the Supreme Court. Such a power is needed much more in the case of an inferior tribunal, such as we are establishing under this measure, and, while it is all right to some extent to provide for appeal to the Circuit Court, the county registrar, if he finds he takes one view and a colleague takes another view, should have power to state a case. I do not think that would add to the expense because presumably whoever wants to have the case stated will pay the piper.

Amendment put and declared lost.

Amendment No. 32 has been disposed of with amendment No. 13.

Amendment No. 32 not moved.

I move amendment No. 33:

In page 11, line 6, after "therein," to insert "and, as far as can be reasonably assessed, the justifiability of the amount of such rent at its date of origin,".

Subsection (a) of section 18 reads:

the purchase price shall, subject to paragraphs (b) and (c) of this section, be the sum which, in the opinion of the county registrar conducting the arbitration, a willing purchaser would give and a willing vendor would accept for the fee simple or other interests having had regard to—

There is a list then of the things to which regard must be had in the formation of any opinion and the first of these is the rent payable in respect of the land by the person acquiring the fee simple. I should like to have included among the considerations which go to the forming of an opinion a consideration as to whether originally the ground rent was or was not a justifiable one. In my opinion, one of the difficulties involved in framing an equitable measure of this kind is the fact that some of the ground rents, within the context of our system, are defensible. There are, of course, countries which do without ground rents altogether and regard them as rather an old phenomenon. Within the context of ground rents, as we know them, it would appear to me that there is a whole range between what I term the defensible ground rent, which constitutes a deferred payment of a capital sum, and the indefensible ground rent which arises as the result of a speculative builder, contractor, or owner of land slapping on a quite unjustifiable ground rent and allowing it to continue forever unless the tenant agrees to buy him out under the very generous terms given by this Bill. I drew attention already, and I apologise for doing so again, to the Minister's statement on the Second Stage that the inflation in ground rents was a post-war phenomenon. It is recognised by the Minister that after the war there was inflation in ground rents. These rents, which he agrees were inflated by post-war conditions, by the shortage of housing, are continued to this day and I am contending that the arbitrator should have power to distinguish between these unjustifiably high ground rents and the more normal ground rent which really represents deferred payments of portion of the cost price, of the capital sum. In other words, some ground rents are justifiable within our system and some are either partially or totally unjustifiable and represent racketeering levies on the tenant at the time of the sale of the house, levies representing an exploiting of the tenant, due to the post-war housing shortage for which the tenant was not responsible and for which he should not be held up to ransom.

Since there are these two types of ground rents, it is inequitable that both types of ground landlord should be compensated at the same level, should be compensated fully in terms of the ground rent which either (a) has been a legitimate one and a reasonably small one or (b) has been a grossly inflated one from the start. After all, if for 20 or 25 years a man has been paying a grossly inflated ground rent, he will think it no compliment for the Minister to say in his Bill: "I am going to allow you to compensate your ground landlord in full for any loss of income which he might otherwise incur by making over to you the ground rent and transforming it into a fee simple holding". He might well say: "I have paid far too much down the years and it is quite unfair that this man who exploited me should be put on a par with perfectly decent ground landlords whose rents are modest and defensible and represent nothing more than repayment of interest on money lent."

Therefore I am asking that the arbitrator be given certain discretionary powers in the formation of his opinion and, after all, it is his opinion that will be operative. We tell him the factors he should take into account in forming his opinion and he should be told to have a look at, and as far as it can be reasonably assessed, to judge whether or not the original ground rent was justifiable and if so, how far was it fully or partially justified? After all, in other legislation we have the concept of a court or arbitrator deciding what would constitute a fair rent and it is not impossible to assess it. It may be more difficult in some cases than in others but the concept is there in other legislation. The arbitrator in trying to determine whether the original ground rent was justifiable or not would view comparable property and similar sites going at about the same date at an equivalent price. If he found rough equivalents of property and sites at an original price at about the same date and that there was a grave disparity as between two ground rents, that one was relatively modest and the other appeared to be grossly inflated, he should have the power to allow this factor to influence his opinion as to what would constitute a fair price now.

He should have the power to decide whether the ground rent in the light of this particular factor was fully or only partially justifiable. Under this Bill, within the context of our property ownership system, it can be agreed that fair compensation for money lent, which is what it amounts to, on fair terms might be granted to the ground landlord when it does represent that, but if it is apparent, after reasonable investigation and comparative assessment, that to a large extent the ground rent in question represents ill-gotten gains and not a justifiable rent in relation to money invested, then the compensation which this Bill will allow should be commensurately reduced by the arbitrator. The racketeering ground landlord should not be compensated on precisely the same terms as his fair-minded and fair-dealing ground landlord colleague with what we would regard as higher standards.

In deciding the amount of the price for the ground rent, the arbitrator should be empowered to take into account the original justifiability of the ground rent as far as it can be reasonably assessed because, of course, it is not possible to get precision in these matters, any more than it is possible under other legislation to get precision in relation to the concept of what constitutes a fair rent. However, my amendment would allow the arbitrator to take these matters into account and I feel we would be wise in adding this to the other considerations which he must take into account.

I should like to urge the reasonableness of this amendment and to point out the obvious necessity for it. I am not in a position to quote exact figures but it seems obvious to me that the overwhelming majority of ground rents have been long established. In the context, that may well be regarded as very reasonable, but on the other hand, we also know that in recent years—in fact, the Minister mentioned this question—a certain amount of exploitation has gone on in the development of land for building purposes especially. I think in many of these cases it would be found that the ground rent assessed is anything but reasonable and therefore there is a strong necessity for some amendments of this type that would draw the obvious distinction between a fair ground rent and an obviously unfair figure. I strongly urge acceptance of the amendment.

I think the theory behind this amendment is a very good one. I see only one difficulty, and it is: what happens where the original owner of the ground rent has sold his ground rent to some other investor? Under the terms of the amendment, this innocent investor who came much later into the whole business would now be penalised. He would not have been the person who imposed a severe ground rent.

It might be a widow or it might be anyone at all who quite innocently is now the owner of the ground rent but the effect of the amendment would be that this innocent person would suffer just the same as the racketeer referred to by the Senator in proposing the amendment. Everyone has great sympathy with this but I think it should not be done in any way that would injure the innocent. It is a point that should have arisen in regard to an amendment by the Senator and I think he has one on similar lines about the amount of compensation to be given. I always understood that it was better that ten guilty persons should escape rather than that one innocent one should suffer. I am quite sure this is the sort of thing that Senator Sheehy Skeffington would very nearly go to the scaffold for himself.

This is permissive rather than mandatory.

I doubt if this has the permissive effect. I have every sympathy but I doubt if the amendment would do so, and I think the difficulty is that innocent persons might suffer.

Business suspended at 6 p.m. and resumed at 7.15 p.m.

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