I have no objection to and indeed I welcome the section, which is one of the main sections of the Bill and a piece of antiquity that we may well properly get deleted from our legislation.
Family Law Bill, 1981: Committee and Final Stages.
Question proposed: "That section 1 stand part of the Bill."
It seems an extraordinary thing after all these years that a mere two-and-a-half lines could undo so much damage and that these same two-and-a-half lines could change something which we were told for so long by so many people could not be done. It was said it was too delicate, too difficult, too dangerous, that marriage would be threatened and that our whole legal system would be thrown into upheaval if we changed this procedure.
This Bill says in one short section that after the passing of this Act no action shall lie for criminal conversation, for inducing a spouse to leave or remain apart from the other spouse or for harbouring a spouse. We were told there would be no problem about a simple deletion of this provision from our legal code but then objections were raised and the Law Reform Commission proceeded to examine it. They recommended something to which many people objected. There were misunderstandings about the intentions of the Government.
I cannot let section 1 pass without saying that it has implications for so many of our other legal provisions. It took us so long to pass the simple two-and-a-half lines because men did not understand the feeling caused in women by that legal provision. They did not understand how it felt to know that you could have a price put on you. As more and more women became aware that this actually existed in our legal code, they became outraged by it. The outrage reached a height — certainly in my case — when, a few years ago, a particular case was emblazoned all over the papers, the upshot being that the price put on that woman was £1,000 less than a racehorse which was sold the same week. Men did not seem to realise what that kind of code meant to women. There is enormous regret that this change took so long.
I am very glad that the passing of this Bill has been much easier than was expected, causing no trauma. The fear of an ensuing increase in adultery seems to have been laid at rest. I have always felt that if a marriage needed a crude instrument like the criminal conversation provision, that marriage had very severe problems in every area.
I do not want to hold up the House any longer but feel that it is extremely important, for the sake of women, to welcome section 1 and to hope that we will now set about attacking other insulting or anachronistic provisions in our legal system and eventually set up a decent legal code.
Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
Mr. Alexis Fitzgerald
The breach of promise action is to go, by virtue of this section. I said on Second Reading that I thought that was right and am still of that mind. I said, also, on Second Reading that the breach of promise action should not go in respect of promises made before the passing of this Bill, and which would be enforceable actions at the moment and before the passing of this Bill. The law as it stands, which it is now proposed to change, gives people who are now subject to that law rights to procure damages — indeed, if I understand the law correctly, exemplary damages, compensation for loss of face, for being jilted, for what used to be known universally and may still be known in parts of Ireland as the loss of chance to the jilted girl. At present, in Ireland, there almost certainly are people who have rights which they may be thinking about pursuing by way of action, or whose affairs and relationships with the other party may be such that they are totally relying on the other party, and the breach may take place after the enactment of this Bill of the promise made before, and accepted before, this Bill was enacted. We should not change the law so that these rights are taken away from people who now have them.
There is a considerable social background to this. Our society, undoubtedly, has been changing, in line with general western European conditions but there is much of old Ireland still remaining unchanged. Girls still feel that they can rely on the man who has made promises to them. They have given up careers. They have made choices about their life-style which they would not have made had they not thought that they had a right to trust the other person and a right to be compensated if their trust was misplaced, if the primary, growing suspicion was replaced by the certainty that this man was not as they had thought him to be. These people should not have these rights taken from them.
I know the provisions about taking proceedings. The Civil Liability Act, 1961 sets a three-year period for taking this kind of action. The limitation period applies and that right, which has a correlative obligation on the person who made the promise, lies over the affairs of that other person during the period of limitation and should remain over the affairs of the other person.
I expressed doubt on Second Reading and am not going to be satisfied with an assurance that I am wrong. It is a matter of view. I expressed doubt as to whether it is constitutional — and I have not here been heard referring too much to the Constitution — to take away a personal right of action existing for centuries under our law, which has a value, without providing any alternative to that right. The Law Reform Commission do not weigh very heavily with me, I regret to say. They did, however, recommend that, in making this change, we ought not to take away the existing right, and that, while the law should be changed, such rights of action as there were at the moment should remain.
That leaves two points I made on Second Reading. I will have a number of other points to make on other sections. It may be helpful if I make a general point about a curious paradox in the Bill resulting from the proposed abolition of the breach of promise action. By abolishing the breach of promise action and introducing a series of sections — sections 3, 4, 5, 6 and 7 — we are paradoxically saying of the breach of promise action in section 2: "He promised to marry you. You have as much reason to complain as if he promised to bring you to a dance and did not turn up, or he asked you to dinner and you had to pay for it yourself." We are treating these promises as if they were domestic grievances, of a kind no one ever intends to enforce in law, whose character and nature are that they have no legal effect, because they were never intended to have legal effect.
Yet in this Bill we are introducing a series of changes of law with regard to the conduct of the parties towards each other and in relation to other parties. For example, while we are abolishing the right of action for breach of promise, we are treating them as if they were married persons in another section. I think it is right to abolish the breach of promise law. We are going to give more effect than that promise has at the moment in its consequences for the further legal relations of these two people and the legal relations of their friends, their parents, brothers, sisters or whoever has the swag. It is a paradox. Maybe it is a paradox we cannot escape, but I think the language of the other sections may take more account of what we are doing in section 2.
I would have preferred to have seen a simple Bill with the abolition of that breach of promise action at the same time as we abolished the criminal conversation action. I am not going to deal with them in this section but there are many other sections to deal with the consequences of engagement. The most important consequence of engagement is the removal of the right to be compensated for the suffering caused by the breach of promise, but the whole structure of other things is erected on the existence of engagements between couples and the knowledge of other parties of the existence of the engagements. Under section 2 we say engagements to marry are not enforceable in law. Then we say it is equivalent to not turning up for dinner and, notwithstanding all that, the jugs, the silver, the furniture, the arrangements about the mortgage, and so on, will be treated very seriously, and on an entirely different basis from the basis on which they would be treated if there was not an engagement, which at the moment would give rise to an action for breach of promise.
I urge the Minister very strongly to accept the Law Commission's report to preserve such rights as there are at the moment while changing the law for the future. It is not good thinking to say that the limitation period will mean these actions will take place during the next few years because if we let them survive this Act and only preserve such actions that have already commenced, we are going to have a spurt of litigation in this area. I do not know about that. The reasoning is bad. If we want to change the limitation period with regard to this then let us do that, let us shorten that period, but I do not see why our citizens should be expected to know that if they consult the fastest solicitor in town and get their action out they are going to be £10,000, £20,000 or £30,000 better off than the poor decent slob who had a poor decent slob as a solicitor but did not get his action launched because his solicitor was too busy to read Bills going through the Seanad in the middle of a general election.
Could the Minister enlighten me on subsection (1) which states that "An agreement between two persons... shall not under the law of the State have effect as a contract..."? A normal engagement is an agreement but it is not set out in legal terms; it is merely an understanding between people. The subsection says "no action shall be brought in the State for breach of such an agreement, whatever the law applicable to the agreement". Does this mean that in the unusual circumstances of a legal agreement being drawn up between two people and signed as between solicitors, such a legal agreement would not have effect in law?
I have already informed the House that the Government have given very serious consideration to the specific point raised by Senator FitzGerald, and decided that once the basic decision to abolish the action for breach of promise was taken this should apply to all agreements to marry, including those made before the Bill becomes law. In that connection, I want to tell Senator Brugha that this section abolishes an action for breach of an agreement to marry. Senator FitzGerald seemed to suggest on Second Stage that another and better way of dealing with agreements to marry entered into before the Bill becomes law would be to reduce the period of limitation, at present six years, within which an action for breach of promise might be brought after the termination of the agreement.
I believe that this would not solve the problem which the Government sought to deal with when they decided that the abolition of the action should apply to all agreements, whether entered into before or after the passing of the Act. There could still be long engagements and no matter how short the period of limitation, actions could take place years after the Act is passed. This the Government consider to be a most unsatisfactory situation. The reason for the abolition of the action was that such actions have in recent times become very rare, mainly because of the change in social views. In particular the risk that a girl whose engagement has been broken will thereafter be shunned by potential marriage partners has lessened greatly in recent years. Also if either party to an engagement is convinced that he or she ought not to marry the other, it is highly doubtful if public policy is served by letting the threat of action push him into a potentially unstable marriage or penalising him or her in damages if he or she breaks the engagement.
It has also been said that to equate responsibility for the termination of the engagement with fault is the wrong way to look at the situation, because in one way the engagement period has been successful if the engagement is broken since one of the parties has utilised this time to find out if the marriage could be proceeded with. It is a very essential ingredient of engagements of whatever duration that the two people involved should use that time to advantage. We have heard much in the House today and in the Dáil about some of the difficulties that subsequently arise in marriages, and proper examination by individuals who are having a courtship or have an agreement to marry provides them with an opportunity to assess all of the essential ingredients for that marriage. It is not correct to state that because the action for breach of an agreement to marry is being abolished in section 2, we should not then proceed to recognise the agreement for the purposes of settling any question in relation to property or gifts that may have come into existence in consequence of the agreement. We are abolishing an action by one party against another. It is important that we have legislative provision for the settlement of any questions in relation to property that has come into existence or has been given by one party to another or by a third party. It is the first time that this has happened and it has been welcomed by many. I do not think that regardless of the successful general election that we have had, there is going to be any rush to solicitors' offices for the purposes of instituting proceedings or actions on the passing of this Bill.
Senator FitzGerald on the one hand says he is delighted that this is abolished, and on the other hand he seems to favour the continuation or preservation of old legal traditions when society, and young people in particular, no longer wish to avail of that type of remedy for the purposes of being compensated. The modern view is that people who can discover during the period of engagement that they would not be suited to each other in marriage are very fortunate. It is the greatest compensation they could get. No monetary compensation could properly compensate them for a bad marriage. I am satisfied that if they have the opportunity many young intelligent and talented people can use the period valuably and if they can discover during that period that they are unsuited for each other in a subsequent marriage arrangement, it is the greatest compensation they can achieve as a result of courtship. We cannot afford to overlook that or fail to recognise that this should be the fundamental importance of the pre-marriage relationship. To put a monetary price on it would be in conflict with the spirit of the Bill which has abolished the monetary price in the case of criminal conversation by the abolition of that action. I am satisfied that the reasons for the abolition of the action as decided by the Government are proper and correct and meet the requirements of modern society and intelligent thinking about the purposes of engagements and what they should be about.
What I have said I have said and it can be read, presumably, on the record. The Minister must not seek to argue against the case I have made for the preservation of such rights as there are. I have made it very clear that I think the change is correct. It is no argument that the point I made with regard to the failure to preserve the rights that exist is invalid because I have not made the same point about section 1. I have made my point about that and we will go on the next section.
I was not arguing against the point made by the Senator. I was simply justifying the Government's decision that the abolition of the action is correct and proper. I was justifying that action by the Government.
Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Although we have gone through the process of abolishing the right to damages in passing section 2, we are now attaching changed consequences to that very agreement because, if I understand the existing law, there is no principle of law to the effect that if you make a present to either of the engaged persons the property is presumed to be given to both engaged persons as joint owners. I am aware of the differences of enactments between our two communities, but the most recent edition of Halsbury's Law states that there is no particular principle of law applicable to wedding presents so as to make them joint gifts to both spouses. Where there is evidence of intention on the part of the donor a wedding present may be found to have been given to one spouse or to the other or to both, but where intention is not clear, the inference may be drawn that gifts originating from the husband's family and friends were intended for the husband and that gifts originating from the wife's family and friends were intended for the wife and that the nature of the gift may supply evidence of the donor's intention. That is a great deal more sensible than what we are proposing to do. We are not merely abolishing, with great mass enthusiasm, the right to take action for breach of promise but we are going to change in a fundamental way the law relative to wedding presents.
What about the gift of a house?
At the moment I am trying to make a point with regard to this. I wonder should we be changing this law in such a frightful hurry. The whip is not out on our backs to do this thing. It is because of the way in which the Seanad is constituted that we are here at all — 47 out of 60 of us — and God knows what powers are in our hands if we took time off together to find out what we could do. The law relating to breach of promise to marry contains the recommendations with regard to this matter, not a frightfully impressive document produced by the Law Reform Commission, Working Paper No. 4, 1978. Here we are, three years later, in a frightful hurry doing what they are telling us except for the preservation of the right, to which we have given an enormous amount of executive attention, to decide that that recommendation should not be followed. They tell us all about Canada and God knows where. But if we get down to what they say about what we ought to do, we will find that they are looking very closely at the British Law Commission's report. I cannot see why we should be in a mad rush, in June 1981, to do a lot of the things that the Law Reform Commission told us was their view on this. My strongest recommendation to this House on this section and on all the other sections is that we should give ourselves time to consider whether we will do the various things proposed, because we are going to do rather fundamental things. In the next section we refer to an engagement ring. In talking about our younger people and modern arrangements, God knows where the engagement ring stands now. I do not know what the most recent sociological report says on the subject of the engagement ring, but we are changing the law in regard to it in the next section as if it was an enormously important matter.
In section 3 we are talking about any property given as a wedding gift — the control of some public companies, vast tracts of uncollected or undominated land, silver, cheques endorsed, bills of exchange and rights to collect any property. There is no exclusion. At the moment there will be daddies who will give their daughters property when they are getting married and the law is that it is their daughters who are getting it, not their daughters and their husbands. Now it is proposed that there should be a presumption in the absence of evidence to the contrary that it is given to both spouses. What happens when a person dies and there are presumptions which cannot be rebutted? There is a presumption that daddy's property is now given to the two of them. It is also presumed that is should be returned if the marriage for whatever reason does not take place. That is another and a separate presumption. When is the marriage to take place? What are they to do about it in the meantime? What if they wanted to raise money to build what Mr. de Valera used to call the dowerhouse? If they are going off to get money to build a dowerhouse before they cohabit — and we have all sorts of other possibilities if they have already cohabited — how are they going to get money if there is a presumption, in the absence of evidence to the contrary, that it is to be returned at the request of the donor or his personal representative? He is gone at this stage and may be in no position to give any evidence to the contrary if the marriage for whatever reason does not take place. There can be all sorts of reasons. This goes to the heart of an argument about fault. You can think of all sorts of reasons. One does not have to know too many modern characters or ancient characters or any kind of characters to know that there are people who turn out not to be what one first thought they were. This is to be irrelevant, apparently. If it is to be returned at the request of the donor what does one do? If one has a gift of the transfer of shares and the transfer is registered, and the transferee is the owner. If one makes a gift of a lot of stock and there is a symbolic deliverance of the stocks, what is the position about that? Should we not make distinctions between immovable property, chattels, commercial pieces of paper, all of which may get transferred into other things? I wonder has all this been thought out. All I know is that the Law Reform Commission did not bother to tell us anything about it. They did not seem to direct their minds in this paper to the problems. Nemo dat quod non habet was a thing I was taught when I was a child. It means that if one does not have something one cannot give it. If one buys a bullock at a fair one is all right because even if the seller did not own the bullock one gets a good title to it. But if one buys silver from somebody and he does not own it, one does not own it either even if one has paid for it. What is the position if a man declares even orally — this may not apply to land — that he owns something for another person? That is the end of it unless he has explicitly made it subject to the wedding taking place. If the marriage for whatever reason does not take place surely “within a reasonable time” or something should be put in. Surely we should have different and more precise rules. The fact that they may have done the thing in the UK would be different because they cleaned up their law of property 56 years before we started doing it. We are moving into all sorts of areas here without evidence before me that the consequences of these steps have been considered by the different people. I think I have said enough on that one.
Surely, one has to distinguish here between a gift and a wedding gift. If you transfer property to a son or a daughter as a gift, that is one thing, but if you do it as part of a marriage arrangement, it is a different thing.
It would appear that the Senator is not aware — and that is quite possible for no unusual reasons — of the Working Paper No. 4, 1978, from the Law Reform Commission.
That is what I am looking at.
I thought the Senator said that he wondered where this recommendation had been or how long it had existed.
I was making the point that the report was made three and a half years ago.
Yes, but, strangely enough, no objection has been communicated to me about the contents of that report. That is the point I am making. Perhaps the Senator is not with it in this connection. It would appear that the very modern society about which he has spoken seems to have, by their silence at least, given quite a reception to the commission's report.
It will be very dangerous to be silent in the future when you are giving wedding gifts, apparently.
Not at all. Views have generally been expressed regarding what intention should be presumed from the action — here I am quoting from the commission report — of the third person donor. One approach is to consider that the party who is a relation or a friend of the donor is the intended sole beneficiary. The other approach is to consider that both parties are intended to benefit jointly. It is recommended that there should be a presumption of intention to benefit the parties jointly. There frequently are difficulties in deciding which party is the friend of the donor. It is often the case that the donor is a friend of both, although he or she has known one longer than the other. It seems artificial in such cases to require the court to infer, in the absence of evidence to the contrary, that one party only was the intended donee. However, where there is solid evidence of the intention that the gift should be the property of one spouse only, effect should be given to that intention.
The section has relevance both for the situation where the engagement has been terminated and for a situation where a marriage takes place. A dispute could arise after marriage as to the ownership of, say, a particular valuable wedding gift. The section will help to settle that dispute. The point has been made that the donee would have a lot of difficulty, or somebody would have a lot of difficulty in deciding whether it was intended for one person or the other or both jointly. If, say, a particular garment were given to one of the two people involved, it could not be presumed, for instance, that a male overcoat was intended for the woman.
Who is with it?
If we could be more delicate, if you like, and consider such items as would be used for the adornment of the female, we will put it that way, that would be evidence of the fact that the person for whom the gift was intended was the woman in the partnership. I am also satisfied that the donor can always make it clear himself as to whom he wishes to give the donation, and specify it in many ways. I am quite satisfied that he can specify also when giving it — and this point has been raised by the Senator — that it is being given on the basis that the marriage will occur. I would not like to suggest that if a gift is given it should necessarily mean that a marriage should occur for the purposes purely of acquiring the right of ownership to the gift. But I hold the view that the donor can always, if he so wishes, prescribe a time limit within which the marriage should occur so as to ensure that, in the case of valuable property, it will not lie indefinitely in the hands of the two people who might think fit to enjoy or use it for their own personal gain and never get married. That is something about which the individual donor can make the necessary arrangements, if he so wishes. In the absence of his doing that, and with no evidence to the contrary, the presumption is of course that it is the property of both. In the transfer of property — be it houses, land; I do not know whether I should mention oil wells, — if somebody wants to donate property of this nature, again there are the normal standard procedures of which the Senator is well aware under which the individual or both parties can be the nominated recipients. There are procedures and practices well established in our law for the purpose of identifying who gets what.
I do not think that all of the fears that the Senator seems to express will upset a whole tradition and create enormous problems. I say that because the vast majority of the members of society are normal. It is only in the abnormal situation that you will have disputes. It is important that this provision be here, in so far as it is a new provision for joint ownership, but it does not in any way interfere with all the other possibilities that both the parties to the agreement and the donor can avail of if they want to decide who gets what.
I am afraid that it is not possible to dismiss lightly points I made with regard to this. We are making a fundamental change of law. The law has emerged through a long series of judicial precedents which have been reflecting judicial consideration of a whole variety of different human circumstances and conditions and as a result of which, as the law stands at present, there is no principle making wedding presents joint gifts. Where no intention is clear the inference may be drawn that gifts originating from the husband's family and friends are intended for the husband and gifts originating from the wife's family and friends are intended for the wife. Of course, there are problems and these have to be worked out in the event of difficulty. But we are changing an important principle and I am not convinced that any of us, here or in the other House, has given sufficient consideration to the change.
Incidentally, I hope not irrelevantly, I think it illustrates the obsolescent nature of our procedures that we should be engaging in what we are doing on this day. Quite honestly I think it is a very clear pointer to the need for a change in our procedures. These sorts of Bills should get empanelled by people with responsibility, people with access to the appropriate expertise, people whose expertise would be able to challenge the expertise available to the Minister. And from the resulting debate, perhaps inevitably, a result will emerge from my ranting on to the Minister here. I would have thought it was perfectly obvious to everyone present. Also on this question of the marriage, it is perfectly open at present to specify a gift as being given subject to the condition precedent that there is a marriage. It is possible to provide for that. But if it is not made a condition precedent — if, for example, it is a father-daughter situation — there is a presumption that the father is advancing the daughter. It is not the daughter and her fiance, which is what we are proposing. It is a wedding gift from the father to his daughter. Are we proposing to change that? People apparently must go to elaborate lengths to make matters expressed that may be offensive to the proposed marriage partner. People do not like saying: "I am giving it to my daughter and I do not want you to have anything to do with it". The present position is that it would be a gift to the daughter in which the new husband would not have an interest. Under this arrangements will have to be set up to make it clear in the future that he knew it was so. Human beings know these things without being told. I do not see why human relationships should become strained by a necessity to express things that flow naturally from the existing law relative to this matter.
Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
Does the presumption of revocation mean that somebody who has been insulted the Tuesday week before the wedding can dash in and snatch back the silver jug on the grounds that the marriage has not taken place and his gift was subject to his power to call it back? A man gives a wedding present and we are now saying that it is subject to the condition that it should be returned at his request if the marriage, for whatever reason, does not take place. He visits the house on Tuesday and the marriage is to take place a fortnight later. If it has not taken place is the donor of the silver jug entitled to say he wants it back, that the marriage has not taken place and "My gift was subject to the marriage taking place"? Can we get an injunction restraining him from taking it back the night before the marriage was due to take place?
If it does not take place——
If it has not taken place on the day he wants his jug back, is he entitled to it?
Does section 4 not concern the engaged couple only?
The Senator is properly pointing out my irrelevancy to section 4. I was covering my tracks on what I should have said on section 3.
It must be presumed that the marriage will take place.
We are now going to make the engagement ring a returnable deposit placed on the woman. Is that not the new law the Minister wants to have on the subject? The man wants his deposit back. He is not bound by the agreement to marry. We have already made that clear to all characters in the neighbourhood in section 2. The man has now got a hold of her attentions by giving her an engagement ring. He has placed a deposit on her. Now we have decided the form is not as good as we thought it was. If the man wants his deposit back he is entitled to get it. He is not entitled to get it back at the moment under the ancient common law which we must apparently regard was wrong in everything.
Now, under this new law, irrespective of the reason why the marriage is not taking place, it is presumed — you can imagine the nature of the engagement taking place between this pair — that when the gift is given it is subject to a condition: "I want you to understand, Margaret, that it should be returned to me or my personal representative if the marriage between us does not take place, that is to say, other than if I should die." It is to be presumed it is subject to that condition and we are including a marriage ring. What happens if it does not take place owing to the fact that the lady concerned cannot stand the sight of the fellow any more, has found him to be a fraud or has reason to think he is incapable of full responsibilities in marriage and so on? We have torn up the agreement, the promises between them. They are just as unimportant as keeping breakfast engagements or luncheon engagements. All sorts of gifts, including this love token between them, he can get back. Are engagement rings given by males to females only?
Usually.
It is an engagement ring that is of no importance and is returnable irrespective of the behaviour of the donor. That is what we are proposing should be the law, unless there is tremendous evidence written out between them. I am not satisfied that this is right. What if the chap is violent? What, for example, if they live together and it turns out that he is a bigamist but the donee did not know it? What happens if there is seduction and illegitimate and non-legitimiseable children resulting from it? Is this to be the law with regard to the gifts of property? I need to be convinced on these matters. I suggest the Seanad needs to be convinced on them. The Oireachtas should give more thought to them. I do not think this should become law without a great deal more thought than as far as I can see, has been given to it yet. A reference to the great silence of the Irish public does not impress me. They simply have not got around to it and people who ought to be doing their duty with regard to these things are not doing their duty, and this includes my profession and Senator Ryan's.
If there is a case then surely the whole thing falls through anyway — there could not be agreement on marriage.
If Senator FitzGerald is prepared to accept the consequences of section 2 without any major objection, then I cannot see why he would not accept the consequences of section 4 which very largely flows from the consequences of section 2. If what was a major contract is to be no longer enforceable, then the consequences, or what used to be the consequences, should also be set aside as no longer enforceable.
At the present moment, as I understand the position, if a girl is jilted she can sue the fellow and get compensation and damages. There are all sorts of reasons why that is undesirable, and the Minister has made the most significant point with regard to why it is undersirable that that action should be left, and that is, that it may tend to lead people into marriages that ought not take place.
At present if there are presents made, particularly the engagement ring, a girl can keep the engagement ring and she can have the great satisfaction of putting her heel on it in front of him or throwing it into the river Barrow or wherever they happen to be, and owning it and not being subject to make any return or repayment of deposit to him. The courts can take due cognisance of this in relation to other property.
What is the position now with regard to awkward and ill-thought-out presumptions with regard to gifts given by third parties to a couple? "Let the damage lie where it falls". That is the way it ought to be with regard to these things. We were talking about land. It may not be encashable. If land is transferred, and so on, it should go back to the man or the woman, as the case may be, instead of being made subject to this urbane type of law which comes from Birmingham or wherever the hell it comes from. It must be thought about in Dublin, Cork, Galway. This ought to be thought about in Dublin, and that is what I am arguing for. I know Governments are very busy and they cannot be thinking out the implications of all these things. They have got to depend on the opinions of individuals who also may be very busy with other matters. The Government may say, "All that is being said here is a load of rubbish. We will go on with the Bill".
I have a non-legal kind of mind but I regard the section and indeed the whole Bill as being very progressive. I agree with Senator Eoin Ryan that section 4 flows from section 2. When a couple become engaged and he gives her an expensive engagement ring, that is part of their love, but when love grows cold for some reason, then surely the engagement ring should become not a sign of promise but simply a piece of property which he may require again, assuming he is thinking of venturing a second time. Perhaps he would not be so callous as to give the second one the same engagement ring. It is a gift but when the arrangement is terminated, it is no longer a pledge of love but a piece of property which I suggest should revert to the donor. I suspect that beneath Senator FitzGerald's grim forensic exterior there beats a sentimental heart which wants the girl to keep the ring.
Under the present law, if the marriage does not take place for any reason other than the death of the donor, it will be presumed in the absence of evidence to the contrary that the gift was given on condition that it be returned on request. If the marriage does not take place because of the donor's death, it will be presumed that the gift was made unconditionally.
Under the present law a gift in contemplation of marriage given by one party to the agreement to the other is conditional on the marriage taking place — and thus returnable if the marriage does not take place — but it cannot be recovered by the donor if he or she is in breach of the promise to marry.
At present, it is an implied condition where the woman unjustifiably breaks off the engagement or where the engagement is terminated by mutual consent that she return all presents of significant value including the engagement ring — unless they were given unconditionally. Where the man unjustifiably breaks off the engagement or where the engagement is terminated by mutual consent he must return such presents and he may not lawfully demand the return of the ring. The section removes any consideration of fault from the determination of whether such gifts are returnable, and is similar to the equivalent English provision in relation to such gifts with the exception of the engagement ring.
The Law Reform Commission, whose recommendation in this matter we are following, considered the English position. The solution adopted in England in regard to engagement rings was a compromise one arising out of the desire to ensure that a jilted woman should be free to do as she wished with the ring. Accordingly, the English legislation introduced a general presumption that the gift of an engagement ring would be an absolute gift. There are two sustainable views. I think Senator FitzGerald's view is that in relation to engagement rings the existing law should remain unchanged — that is if the man breaks off the engagement the woman should be free to do what she likes with the ring. On the other hand, the general policy adopted by the Law Reform Commission in their approach to the questions relating to property arising out of breach of promise of marriage was to remove as far as possible any consideration of fault from the determination of such questions. Their recommendations in relation to engagement rings follows this general approach. It should also be said that this particular proposal was published in the Law Reform Commission's Working Paper No.4 and as far as we are aware it received no adverse criticism. Also, one English family law commentator, (Bromley) expressed the view that one would have expected the presumption in the English Act to have been the other way, that is, that the engagement ring should be presumed to be returnable as being in the nature of a pledge.
I believe, as Senator Ryan has said, that the provision in section 2 is proper and necessary. Therefore, I do not accept the argument made by Senator FitzGerald in relation to sections 3 and 4, which simply provide for the settlement of property in cases where marriage does not take place or where death occurs.
In other words, does the Bill remove a sexist discrimination?
You could say that.
I am all for that.
Apparently any little operation enables Senator Murphy to stop thinking. He is delighted if he can get some word like "feminist". He can retreat behind any such word as "sexist" or "feminist" and give it as an excuse from further thought. He is nearly as bad as Senator Martin who regards it as some defect on the human race if he tries to read a section in order to dismiss it. It is our job to read sections of Bills before us and we do not need all this talk about lawyers and legal talk. What the blazes should we be doing here on this Bill but engaging in legal talk? We had those references to my sentimental heart and my forensic exterior. I am not allowed to practise in the courts, it is not my business to do so, as Senator Ryan knows perfectly well.
Did Senator Murphy ever stop to think that merely because 13 years after an English law commission made a report our people ten years later make a similar report? Three years after that they tell us that we are not doing what they recommended. Has the Senator read Working paper No. 4? It is a pity if he did not because he would then know that this Bill will have considerable effects on many aspects of people's affairs. It is not good enough for Senator Murphy to produce his judgment on such matters as his interpretation of feminism.
I do not think it logically follows that because there are good reasons for abolishing the breach of promise action there are equally good reasons why all questions of fault should effect the questions of property between the parties or between third parties and the two of them. There are reasons which make it undesirable to maintain a breach of promise action if the effect of it is to lead some pair into a marriage which should never have taken place. If property is passed then the court ought to be allowed to take any view they think is right and damned if it is going to be a sexist view because sex does not enter into this matter, any more relevantly than it enters into Senator Murphy's intervention. It does not enter into it any more relevantly than Senator Murphy's interventions here and the pending Seanad election. The fact is that questions of justice are properly applied by judges who are concerned with justice whether they are male judges or female judges. Look at what the British have done with their whole marriage code and their whole institution of marriage. Are we to go trotting after them in all directions? I do not think so. It is undesirable that consideration should be withdrawn from the question of the fault of the parties concerned and the fact that the marriage does not take place. That factor of justice and misrepresentation and behaviour should remain as a relevant factor and should be the dominating factor in the determination of what is going to happen to all of this. I have said enough on that section.
Surely it is the consideration of the gift on marriage and if that consideration fails then there is no longer any reason why the property should remain the property of the other person? I think Senator FitzGerald is emphasising this engagement ring which is probably not the principal concern of this section at all: it is property much more valuable and much more tangible property than an engagement ring. Merely because the engagement ring has a romantic aspect, perhaps it seems unfair and ungallant for the person to ask for the engagement ring back; but certainly in regard to all other kinds of property it seems to me quite right that the property should be taken back if the consideration has failed.
The consideration of the marriage may have failed but a lot of other considerations may have passed. What if there is a child, for example, resulting from a seduction not of an entirely modern character which has given rise to the responsibility of a child? Are we then going to be told that we will look at some other law that will deal with that, a law that will get around to making it right in five years' time? Let all these matters be taken into account. I referred to the bigamist situation: these things have happened; these things do happen and all these things are human realities. The law should be left as it stands with regard to that. If the position is as simple as the Senator suggests why are we going on in the next section to treat their transactions as if the pair of them are married? Section 5 opens with words with which section 5, subsection (1), subsection (2), section 6 and section 7 open but notably the other sections do not open, that is, "where an agreement to marry is terminated". Incidentally what happens in relation to any of these things if the parties are killed at the same time? There is mention here of the death of a donor. What happens if they are both killed in a crash together or in an accident? Where are the presumptions at that stage? Are we going to presume that one of them died before the other?
There is no coherent logic to this whole Bill in my view, a male feminist's view, if you like. Where an agreement to marry is terminated, having said the lady cannot sue the fellow for breach of promise she suddenly finds herself in the position because of the rules of law relating to the rights of spouses, that this matter is a notional spouse under section 5 in relation to property in which either or both of them have a beneficial interest while the agreement is in force. As Senator Ryan knows extremely well, the words "have a beneficial interest" themselves raise questions for lawyers. What are we talking about? Where does the whole question of trusts and limited interest and other people's interests stand, settlements on the pair to be married and the prospective issue of that marriage and so on? Have they rights? If there is not a marriage, have the illegitimate children any rights? Is that a male feminist view, Senator Murphy, to be concerned about illegitimate children? Or is that excessively rhetorical of me to be referring to it? It is relevant at any rate because there will be nothing but illegitimate children out of this proposal. If there are children they will be illegitimate because we are talking about an agreement to marry that is terminated. We are talking about the rights of these two people and we are not contemplating the possibility that there may be other people involved at that stage.
Question put and agreed to.
Is section 5 agreed to?
In the sense that it is disagreed, yes.
Section 5 agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
Here we have a new thing again hopping in on the UK report which generates the Irish report which generates an Irish Bill which deviates somewhat from the original UK report which is followed by, in part, a UK Act. We have a side note here for the first time "Application to the court in the case of a substantial benefit to a party". A "broken engagement" suddenly appears in the side note. A broken engagement does not matter if you break it under section 2 because we have provided to that effect under section 2. But it matters a lot if it is broken under section 3, because you get your money back, and under section 4 you get your engagement ring back irrespective of who did what to whom. We have here something which I think needs definition. Under section 3 we are talking about two persons who have agreed to marry one another and what happens to any properties given as wedding gifts to either or both of them. Various things happen under that and that property, where the agreement to marry is terminated under section 5, is dealt with as if the two of them were married and questions are determined as between husband and wife. The presumption is not as it is at the moment in favour of what is given by the husband's relatives and friends being for the husband and likewise in the case of the wife under section 5. In section 6 there is something called "a benefit of a substantial nature not being a gift to which section 3 applies". What is that? Section 3 applies to what are described as being gifts to engaged couples by other persons.
We must in some way be distinguishing between wedding gifts — why we do not say it I do not know — to which section 3 applies and some things that are not wedding gifts under section 6 and where, notwithstanding that the matter given is not a wedding gift, there has been an agreement to marry which is terminated and the party to the agreement received a benefit of a substantial nature from the applicant in consequence of the agreement. What is a "benefit of a substantial nature"? Is that not a property too or is it saying: "I am going to make him managing director of the local shoe factory or I am sending him on a holiday to Hawaii"? I take it we are talking about something other than wedding gifts. Let us say so rather than something not being a gift to which section 3 applies. I notice the words used are "in consequence of the agreement". What if the benefit we are talking about is not in consequence of the agreement at all but was to provoke the agreement? Did you ever hear of that kind of lark from the dame who actually wanted to bring about a marriage, who did some expenditure to procure the agreement, and gestures were made and transfers were effected and promises are pursued to some degree? However, none of that, even if it results in substantial things, is going to be the subject of section 6 because the only matter that the courts are going to look at, no matter how substantial it is, in section 6 is something that is in consequence of the agreement. Presumably, therefore, it must follow in time the agreement and presumably, therefore, it cannot precede the agreement to marry. Life is very strange and I imagine there are people listening to me who are aware of maybe substantial enough benefits that have preceded agreements to marry.
These are not to be the subject of the court even though they were not wedding gifts, I welcome section 6. It should apply to the whole thing, including section 3. It should be in connection with the agreement, in furtherance, in subsequent, consequence or whatever. It should take in all the links about the agreement notwithstanding that the agreement is not a contract. All these sections really should have a subsection saying "that notwithstanding the provisions of subsection (2),". As a matter of elegant art I would have divided it up and made that section 2, something independent to be ignored for the rest of what follows. That is my feeling about it.
This section provides for the making of orders by the court where one party to an agreement to marry has received the substantial benefit, other than a wedding gift, which is provided for in section 3. That substantial benefit can mean the provision of finances for decorating or carrying out improvements to a home or for payment for a holiday provided for either of the parties before the engagement broke up. The Law Reform Commission first proposed a provision of this nature in their Working Paper, No. 4 1978: The Law Relating to Breach of Promise of Marriage. The basis of the proposal was that where it appeared that either party to an agreement to marry that had been terminated had been unjustly enriched by the other party or had been substantially or unjustly enriched by a third party, the court should be empowered to make such order for restitution or compensation as appeared to be just in all the circumstances. The Working Paper also proposed that the court was not to have regard to the question of the responsibility of either party for the termination of the engagement except where there had been violence, fraud or deceit by one of the parties but this latter proposal was dropped by the Commission in its First Report on Family Law — 1981, so that less stress would be laid on the parties' conduct in respect of the termination of the engagement.
Senator FitzGerald has also stated that we have copied British law in relation to this section. We have not. This section is new and there is nothing in British law that bears any resemblance to it. We did not consider any aspects of British law in connection with the preparation of this provision.
I should like to accept the correction from the Minister on that and I am glad he drew my attention to it.
The House has been dealing with great skill, if I may say so, with this piece of legislation. My colleague, Senator FitzGerald, has been highlighting many points which are too complicated for me. In connection with this section I should like to ask the Minister to explain the situation regarding a young engaged couple who plan to marry — bearing in mind that the earning power of women nowadays is on a par with that of men, equal pay for equal work — and, as is common practice, while they are engaged, embark on providing and building a home for themselves. It is not unknown to hear of long engagements here. I should like the Minister to give the House an indication of what the situation is and if this section can be helpful where a young man and young woman spend a considerable amount of time, energy and, indeed, finance providing themselves with a home. My experience in rural Ireland is that a young fellow will get a plot of ground, maybe he gets it from a friend or, indeed, a relation and he goes through the Land Registry registering it in his name. Then he proceeds to build. Very often the woman's salary will make a considerable contribution to the provision and the building of that home. Houses at present cost a lot of money and in the event of that house being completed before a marriage, or in this case before the engagement becomes a broken engagement, has the partner who is not registered owner of the site any comeback or any guarantee of recovering her input at least. If the matter carries on for any considerable time, with the rapid rate of inflation over the last couple of years, or if there is a time lag or a long engagement, then the value will greatly appreciate. This could cause a lot of bother and I wonder if section 6 is sufficient to give the court power to make an equitable distribution and an equitable divide of the value of the property.
From what the Senator has said it appears that he is referring to section 5 rather than section 6. Section 6, the section we are on, deals with third parties while section 5 deals with engaged couples and the property of engaged couples. Property of engaged couples, where the engagement is terminated, is to be dealt with in the same way as the property of married couples. The rules of law that apply to the property of married couples will apply to the settlement of any disputes or otherwise that may arise between formerly engaged couples.
At the risk of drawing Senator FitzGerald's withering fire, I am reminded of a remark of an American Civil War general, "Elevate them guns a little lower". In section 6 the court has to adjudicate on the matter of considerable property. If there are children — the point which Senator FitzGerald brought up — if there are issue of the engagement, would the court not be adjudicating on that matter as well? Would the court not be taking into consideration the existence of the children and their right? The point which Senator FitzGerald brought up under section 4 seems to be absolutely distinct from the section which follow. Section 4 deals with the simple case of an engaged couple who are no longer engaged, whereas section 6 presupposes perhaps a long standing arrangement which may have all kinds of extensions and which the court would adjudicate on.
The court could make whatever order it thought equitable which could include recognition of the children who might be the issue of the engagement.
With respect, I do not think that is correct. There is no provision there for illegitimate children of any union. It would be highly desirable. I do not understand this point about substantial nature. I welcome section 6 and the Minister may be cheered to know that I welcome the next section too. I think that in ignoring the question of responsibility we are going too far, in our Irish circumstances, when we are abolishing the breach of promise action, in going ahead to ignore the question of fault in relation to the termination of the engagement save in so far as it may arise by analogy of the application of the Married Women's Status Act. But under the Married Women's Status Act the children will be legitimate children with all the rights of such. Earlier today we passed a Bill which ignored the position of an illegitimate child, the earlier of these two family law Bills; we do not have any mention of children in this entire Bill. We are assuming that such matters do not arise when we are solemnly engaged in enacting laws here. I do not see provision for it and I would like to think there is. That is another reason for not rushing this Bill through.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
I welcome this provision. It deals in new territory. I do not think there is any follow through. The idea is to prevent, though we abstain from using the words for some reason or other, unjust enrichment. Why do we not use them? It is simply because there has been a great deal of judicial commentary on it. It is a phrase that we could possibly understand from judicial findings what it meant. What we are concerned about here in section 7 is somebody getting unjustly rich out of engagement exercise. At any rate it seems I should welcome it.
Question put and agreed to.
Section 8 agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."
What is a right conferred by this Act arising out of the termination, for whatever reason, of an agreement to marry? What rights are conferred by this Act? Would the Minister tell us to what we are limiting by this section? What rights do we understand ourselves to be conferring by this Act in respect of proceedings which are not to be brought after the expiration of three years from the date of the termination of the agreement which is the uneforceable contract, which we have said in section 2 is unenforceable? There is one right, that is that the financé can get back his engagement ring. He has not got that right at the moment and we are conferring that right on him anyhow. The donor can have three years to get it back apparently and if it is not in dust at the foot of the woman, the women of Ireland are not what I think they ought to be. What other rights do we think we are conferring?
Section 6 and 7 cover substantial benefit, substantial expenditure, the ring and any wedding gifts and presents that were given in connection with the engagement.
With great respect that is extremely unclear from the Bill. Section 9 refers to termination of an agreement to marry. There is no such language in section 3 or section 4. There is such language in sections 5, 6 and 7. If it is intended to include section 3 as well as sections 6 and 7 and 5 which the Minister did not mention, and if it is intended to curtail the rights of action to three years in respect of these rights, it should be stated specifically and expressly and without doubt in this Bill. If it is not, I will oppose this Bill.
Sections 3 and 4 are conditional on the marriage not taking place.
The language used refers to a right conferred by this Bill. What is this right?
To get it back.
The language is very inadequate because there are rights which are expressed in this Bill which exist already and there are rights conferred by this Bill which do not exist. If we are going to limit the period for action in respect of language such as that, we should know what we are doing expressly and we should say if it is every right enforceable and expressed in this whole code whether it exists or not at the moment. We should say so because at the moment there are rights to bring actions under contracts. The period for bringing actions under contracts is a different period. If we are going to change that period, let us know what we are doing. But we are saying in section 2 that the agreement is not a contract. If we are going to say that all the rights that are spelled out in sections 3, 4, 5, 6 and 7, even though we use different language in sections 3 and 4 from what is used in 5, 6 and 7, are to have different periods of limitation for bringing actions these are very important matters. Men may wake up in a sweat to discover suddenly that they have not served their proceedings in time.
There are periods set out for bringing proceedings. Let us, for God's sake, be clear about it. Do not ask me to say what is in the statute of limitations at the moment because I could not remember it. But there are periods set out for bringing proceedings. If this is a different period, as I think it is—and let us not be trapped about the breach of promise; there are other contractual rights which flow from existing law and periods of limitation for enforcing these contracts —and if we are changing the period of limitations, let us do so in a clear way. Let us take the statute of limitations out now and look at it and see what we are varying. Perhaps the Minister's advisers know all about that. It they do they should tell us all about it and we should have an opportunity of thinking about what it means before we agree to it, and that will not be today.
Senator FitzGerald is arguing that there is a distinction between the termination of an agreement to marry and the fact that a situation arises where the marriage for whatever reason does not take place. I think that is a distinction of words but one of the circumstances in which the termination of an agreement takes place is when it is impossible for the agreement to take place. That gets back to meaning "if for any reason the marriage does not take place". That is not a very valid distinction. It seems to me that the rights conferred by this Act — the provision in section 9 — are provided for in sections 3, 4, 5, 6 and 7 and even though they are worded differently they are all in fact a termination of the agreement.
To take Senator Ryan up on section 3, that section simply introduces a new presumption in the absence of evidence to the contrary with regard to property given as a wedding gift being subject to the conditions that it be returned at the request of the donor. That is not the creation of a right. It is a presumption of construction. If we are going to change the law in regard to the limitation period let us be clear about it. On the question of the termination of the agreement, this reminds me of my listening a long time ago to Mr. Justice Gavin Duffy construing a will when he said, "It seems to me that the draftsman took out a precedent in Butterworth and then took out another precedent from Key and Elsinson and put the two together and produced as a result this botched job". because we have language here which does not reconcile in some sections with the language in others. What I am saying is that nobody should be left in any doubt about what the periods are for taking action. Here there is considerable doubt because the language used is "a right conferred by this Act". I do not know what "a right conferred by this Act" is unless it is spelled out as being sections 3,4,5,6,7 or whatever you want to say. It is a separate issue to ask the question why the periods of limitation should be different in relation to these situations because it might be arguable that they should be longer rather than shorter. I should like to know why they should be different from the ordinary. I just want to know. Human intelligence has been brought to bear on the matter. All I am clear about and absolutely clear is that section 9 is unclear.
Section 9 applies to the various provisions of the Act and I have no doubt that any of the alleged doubts or ambiguities of different language used will not create any problems. All the information available to me and the reports from the Law Reform Commission and so on have convinced me that what is proposed in section 9 is adequate. On the question as to why the periods should be reduced to three years in this Bill, I think it is correct that matters related to the settlement of disputes or the settling of property matters in relation to engaged couples should be dealt with as soon as possible after the termination of the agreement to marry. Otherwise you could have a situation emerging where the people involved, and particularly the parties to a termination, might find difficulty in entering into new relationships. The termination might have resulted from a relationship that had begun. It is also important for both of them that they would not be in any way affected or be in any way restricted in pursuing whatever other interest they had. For that reason I think that it is in the best interests of the parties involved that the limitation period for taking proceedings should be reduced to theee years. I might add that this is also the view of the Law Reform Commission.
Question put and agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
So that I can follow the matter up at Report Stage, I would like to understand the reason for the proposed amendment of section 9 relative to the disposal of household chattels. I understand the social need for the amended section 3(1) but I am quite happy to leave that over for Report Stage.
Question put and agreed to.
Section 11 agreed to.
Title agreed to.
Bill reported without amendment.
When is it proposed to take Report Stage?
Now.
It has been very obvious from the tone of my contributions that I could not agree to anything less than a week. Even a week is insufficient, but let it be a week if that is what anybody wants.
I am not prepared to agree to that for the simple reason that my office has been inundated with inquiries on a regular basis and on some occasions on a daily basis regarding the coming into operation of this legislation and section 10 in particular. There are many young couples who are at present being put to enormous expense by having to obtain valid consents through the High Court. I have had contact from their solicitors and from some couples themselves and I do not think that what I consider to be a vast improvement — good sensible legislation that is remedying difficulties — should have to be put back for another week. My only regret is that we could not have dealt with it on the last occasion here.
Previous delay is no excuse for rushing through legislation that has not been properly considered. It was the responsibility of the Government if there have been cases in respect of which there has not been adequate legislation.
I am satisfied that this is adequate.
I cannot accept the proposal to put through legislation about which very considered views have been expressed without the Seanad considering the Report of the Committee on the different sections of the Bill. Therefore I cannot agree to have Report Stage immediately following Committee Stage, because it would mean the Seanad had not considered the Committee Stage debate on the Family Law Bill. There is no way in which it can be pretended that the Seanad has considered the Committee Stage debate, as it is its duty to consider when we are making changes of considerable importance in the law. In so far as these are considerable improvements it is important that they be properly considered if we are to avoid causing subsequent injustice to the people of this country.
I cannot agree to the Report Stage being taken now. There is no reason why we should end the proceedings of this House on a division. It would be much better and a good symbol for the future if we did not divide. I am being serious; there is nothing trivial in what I have contributed. I think that the matters that have been raised here ought to be considered. It may well be that every word of the Bill should go through as it is provided that the criticism that has been expressed has been considered and provided it is evident to everybody concerned that it is worth while devoting our time to this matter. I do not want to end what may be the last debate in the Seanad with a division and I do not want to put the Government in a position of putting a closure on the debate. I do not want to appear to be obstructive. I am in no way looking for a division on this, but there will have to be a division if the Government press the matter. I would hope that there would be an agreement to take this at a time which is up to the Minister and the Leader of the House to decide, but not for less than a week.
On a point of information, may I ask what specifically Senator FitzGerald hopes will be achieved by a week's postponement of Report Stage?
I hope that what has been said here, by me at any rate, and anyone else who has contributed, will be considered as serious contrubutions to what I think ought to be the law relative to very important matters. I have the feeling that this is not being considered, that it has been futile for me to have said anything, to direct my intelligence to this. This is a very unhappy note for me on which to end this session of the Seanad. As I have said honestly to the House, I may be wrong in everything I have said, but I do not think so. I think I have made quite a number of points of substance. All I would like is to be sure that they have been examined, without any sense that they should not receive as much examination at this time of the year as they would have received six months ago and they would have received such examination six months ago. I know from previous experience of this Minister and his Department, and other Ministers and their Departments, that what one says here is considered and it is worth while putting forward suggestions. We are all perfectly well aware that there is a Seanad election and there are other things happening but I cannot be responsible for that.
As I understand it, Report Stage is of use where amendments have been made on Committee Stage, where amendments have been discussed which are not in the view of some Members of the House or the Minister entirely appropriate and where it is clear that some kind of amendment might be useful. Report Stage gives an opportunity to discuss amendments or to discuss a better form of amendment but it only arises where this kind of situation has taken place. There were not amendments to this Bill. There were not any suggested amendments and, consequently, although this may not be the only reason why a delay for a debate on Report Stage would be appropriate, it seems to be the principal one. I do not want to be difficult and I certainly agree with Senator FitzGerald in that I hope we would not have a vote on this. It seems to me that this is not the kind of situation in which it would be reasonable to insist on a delay, an interval during which time consideration could be given to the Committee Stage debate and a further debate to take place on Report Stage. In my view in all the circumstances it is not reasonable to ask for an adjournment of a week.
Many times in this House I have decided as a matter of deliberate policy and out of fairness to the Ministers in charge of legislation not to table amendments on Committee Stage hoping that in making points on Committee Stage I would be able to win the Minister's interest in the points I was making and that the Minister would put down amendments on Report Stage. I made my judgment then on how I was doing with the Minister in the debate, as to whether or not I put down amendments on Report Stage. If the Minister cares to have the exercise done for him, he will find there have been many Bills where I put down amendments on Report Stage when I had put none down on Committee Stage. It would be my intention to put down amendments on Report Stage of this Bill and I will do so.
I appeal to the Leader of the House. It is quite obvious that Senator FitzGerald has put an amount of work into this technical Bill. It is a very important Bill and I compliment the Minister on bringing in this legislation. I think it is certainly very necessary now. Senator FitzGerald who has handled the Bill has put much study and effort into it, and I believe it is only reasonable to give him a reasonable opportunity to consider the arguments and the views the Minister put forward. It is unreasonable of the House to expect him to be able to table amendments on Report Stage in the space of half an hour or an hour. I would ask for an adjournment of this.
I want to make a final comment. As Senator Ryan has stated, there does not appear to me either to be any justification for not taking Report Stage this evening. I have already made known to the House and to Senator FitzGerald that there is great demand for the early enactment of this legislation and it is vital to the interests of many young people. I think it would be wrong of me, in view of the national interest, and the interests of the particular people involved, to agree to Senator FitzGerald's suggestion, particularly when I am aware that solicitors in many instances have been waiting patiently for this legislation, I feel I have no option in the matter.
An extra week will not make any difference.
An extra week is quite a considerable length of time if a person has been waiting for a number of weeks and months. I appreciate the in-depth and valuable comments made on the Bill by Senator FitzGerald but while he expressed definite views he did not at any time seriously conflict with any of the principles in the Bill. For that reason I feel I must take the view that we take Report Stage this evening and, hopefully, have no division. I appeal to the Senator to respect my plea in this matter.
I would wish to do so but I cannot do so.
There is no entitlement to speak more than once on this. I have allowed several contributions here which I should not have allowed.
Question put: "That the Report Stage be taken now."
The Seanad divided: Tá, 14; Níl, 10.
Tá
- Brugha, Ruairí.
- Cassidy, Eileen.
- de Brún, Séamus.
- Donnelly, Michael Patrick.
- Doolan, Jim.
- Dowling, Joseph.
- Herbert, Anthony.
- Honan, Tras.
- Kiely, Rory.
- Lanigan, Michael.
- Mulcahy, Noel William.
- O'Toole, Martin J.
- Ryan, Eoin.
- Ryan, William.
Níl
- Butler, Pierce.
- FitzGerald, Alexis.
- Harte, John.
- Howard, Michael.
- Hussey, Gemma.
- McAuliffe, Timothy.
- McDonald, Charles.
- Murphy, John A.
- O'Brien, Andy.
- Staunton, Myles.
Tellers: Tá, Senators W. Ryan and Dowling; Níl, Senators Butler and Harte.
Question declared carried.
Report Stage agreed to.
When is it proposed that the Fifth Stage be taken?
(Interruptions.)
What is meant by now? Does it mean instanter without an opportunity for the Seanad to consider the Committee Stage debate and amendments which it would be appropriate to make to the Bill arising from the debate which has just taken place on Committee Stage? Is that what the Seanad is deciding to do? Is that the final decision?
We are deciding when to take the next Stage.
I am looking for clarification on what "Anois" means in this context.
It means now.
At this moment it has been decided by the House——
There is no question before the House now only when is Fifth Stage to be taken.
I am not allowed——
The Leader of the House has not yet proposed when the Fifth Stage is to be taken.
I am proposing that it be taken now.
Do I understand the Leader of the Seanad is proposing that we should not consider the Bill in the light of the debate which has taken place? Is the Chair ruling me out of order?
The Fifth Stage is proposed to be taken now.
The decision of the Government party is that we should disregard the debate which has taken place in the absence of many Senators from both sides of the House. Is that what they have decided to do—to disregard the debate which has taken place on the sections in the Bill? Is that their decision?
We are not deciding anything. We are proposing.
The Senator is making a proposal. I thought he had reached a decision. What are we debating?
It has been proposed that the Fifth Stage be taken now.
Is it proposed to give Senator FitzGerald time to draft the amendments he wants to put down?
There are no amendments on Fifth Stage.
The decision is therefore, that no amendments will be considered by the Seanad following the debate on Committee Stage.
The House has already agreed to the Report Stage of the Bill. There were no amendments and there is now no possibility of putting down amendments for Fifth Stage.
So the House has decided there is to be no opportunity to table amendments to this Bill in the light of the debate which has taken place in the past few hours? I think I understand it correctly. That is what the House has decided. It is a mistaken decision.
The House has taken a decision in accordance with Standing Orders, and that is that.
The House slipped over Report Stage.
Can the House not decide anything? It can change its decision.
The Senator cannot speak two or three times.
Can I not? Would the Chair tell me under which of the Standing Orders I cannot speak more than once?
This is not the Committee Stage of the Bill.
I did not say it was. Will the Chair tell me which Stage we are on?
We are naming a time for taking the Fifth Stage of the Bill. That has been made clear.
We have not taken the Fourth Stage yet.
Could I propose to the House that we adjourn the proceedings of this House for the purpose of——
The Senator is out of order. The Report Stage was put to the House and was passed.
Does the Chair mean it is not open to the House to make a decision? If we heard at this moment that the ceiling was falling in, would we not very quickly make a proposal that we get through the door?
It is not falling in.
Can we not——
I have to ask the Senator to please sit down because the House is now deciding when to take Fifth Stage and nothing else. He cannot speak ad nauseam.
Can I not make a proposal on the Adjournment of the House?
No.
Cannot the Leader of the House make a proposal to this House? I would like the Leader of the House to propose an adjournment of the House. He is the most reasonable man I have dealt with in my whole career in this House. I would like him to propose to the Seanad that we end our debate in a rational manner and adjourn the proceedings until 11 o'clock tomorrow morning.
If the Senator wants to be awkward——
I propose that the Fifth Stage be taken now and I respectfully suggest that the Chair should put that proposal to the House.
The question is: "That the Fifth Stage be taken now".
Agreed.
What if the House says: "No, we do not want to take it now"?
The question is: "That the Bill do now pass".
Have we had Report Stage?
Yes.
Could anyone on the other side of the House who just decided to rush through Report Stage tell me what Bill have we rushed through?
The Senator is out of order.
Question put and agreed to.
The answer to that is in the negative.
Tá an Bille rite.
Is there not a Final Stage to the Bill? Is the Chair in order?