Seanad Éireann debate -
Thursday, 16 Jul 1981

Vol. 95 No. 23

Rent Restrictions (Temporary Provisions) Bill, 1981: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of the Environment (Mr. F. O'Brien)

The Rent Restrictions (Temporary Provisions) Bill, 1981, is intended to provide a measure of protection for tenants of dwellings which were controlled under the Rent Restrictions Acts, 1960 and 1967. These Acts were recently the subject of a Supreme Court decision which declared that, in important respects relating to the control of rents and the restrictions on the landlord's right to recover possession of dwellings, they were outside the provisions of the Constitution. This Bill will give tenants affected by the Supreme Court judgment protection against rent increases and against ejectment from their dwellings for a limited period of time. It will be followed by a further Bill within six months to deal on a more permanent basis with the problems in this area. For the moment we are called upon to respond quickly to a particularly grave social problem.

The Supreme Court decision to which I referred declared unconstitutional Parts II and IV of the Rent Restrictions Act, 1960. The effect of this is that upward of 30,000 tenants of controlled dwellings have had their protection from rent increases and security of tenure under the Act removed. Questions were raised in the Dáil about the actual number of tenants involved. As I indicated then, there is no way of knowing what the actual numbers are. However, on the basis of past trends, my Department estimate the number of such dwellings at present to be in the region of 30,000. In any event the actions proposed here are not related to a particular estimate of the number of persons involved but are based on the realisation that a large number of persons, many of them from the poorest section of the community, are in need of protection and help. This the Government are determined to provide.

The basis for the Supreme Court's judgment was that the control of rents as operated under the 1960 Act constituted an unjust attack on the constitutionally guaranteed property rights of the citizen. This was because rents were fixed without provision for review, compensation, any regard to the respective economic circumstances of landlord and tenant, any limit on the period of restriction or any allowance for modification of the operation of the restriction. This the Supreme Court held to be both arbitrary and unfair. The restrictions on the landlord's right to recover possession were considered to be so closely entwined with the rent control provisions that they had no independent existence of their own and fell to be unconstitutional as a result.

The present Bill is designed to meet the situation arising out of the Supreme Court's decision. It is a response to comments in the judgment which referred to the need for new legislation to deal with the statutory void created by the judgment and affecting this whole area. It takes into account the recommendation of the court that in the period before such substantive legislation can be enacted, courts in dealing with an application for a decree for possession arising out of the judgment should either adjourn the case or grant a decision for possession with an appropriate stay of execution.

This Bill effectively puts this recommendation on a statutory footing. It does this by continuing for six months the restrictions of the landlord's right to possession set out in the 1960 Act and by making rent increases notified after the date of the High Court decision unenforceable for that period.

Comments have been forthcoming from different quarters that this Bill itself might be unconstitutional. This I do not consider to be the case. This Bill, in its Long Title, refers specifically to certain provisions of the Constitution. The effect of these has been amplified in the explanatory memorandum circulated on the Bill. Under Article 43 the State may delimit by law the natural rights of property with a view to reconciling their exercise with the exigencies of the common good and regulating them by the principles of social justice. Article 45 pledges the State to direct its policy towards ensuring that the ownership and control of the natural resources of the community may be so distributed amongst private individuals and the various classes so as best to subserve the common good and to safeguard with special care the economic interests of the weaker sections of the community. In the face of these provisions of the Constitution, the temporary nature of the legislation and the explicit recommendation of the Supreme Court with regard to decrees for possession, I consider the Bill a proper, and indeed necessary, course of action for the Government to follow.

The six month period of the operation of this Bill is intended to provide the breathing space for the Government to prepare and initiate, within the confines set by the Supreme Court's judgment, the appropriate policies and legislation that will be called for to meet the new situation.

The suggestion was made in the Dáil that this period might not be long enough. While I realise that the work which must be completed within the next six months is considerable I am confident that the necessary legislation will be ready when this Bill expires. With regard to what future action is envisaged, the short time that this Government have been in office has not put us in the position to set out our final views on this complex subject. At this stage I can go no further than refer to the programme for Government in which we have promised to secure fixity of tenure for existing tenants in rent controlled accommodation and to provide a scheme to subsidise rents where they are beyond the means of existing tenants.

During the debate in the Dáil on the Bill a number of suggestions were put forward for amendments. Some of the suggestions had considerable merit in themselves, but they are really more appropriate to the substantive legislation which is to follow this Bill. Further, as I indicated earlier, the Bill is designed to take into account the Supreme Court's judgment as well as the relevant provisions of the Constitution. Suggested amendments to the Bill which would have the effect of negativing the Supreme Court judgment or which would conflict with the reasoning behind that judgment cannot be accepted. Having regard to the need to deal immediately with a particularly urgent situation and the limitation of the Bill to six months, I have concluded that the Bill in its present form is the appropriate and best response.

The situation facing the tenants of controlled dwellings is a serious one. Nobody in this House can be unaware of the major change in the conditions governing the controlled rented sector which the Supreme Court's judgment will bring about. The change will have far-reaching social implications with which we must cope while at the same time being fair to the interests of both landlords and tenants. This Bill will provide the necessary breathing space in which to prepare the policies needed to deal with these social problems. I accordingly commend the Bill to the House.

Mrs. Cassidy

I should like to extend the courtesy of the House to the Minister of State on his first visit and to wish him well in his most important portfolio. I am confining my comments on the Bill to the basic principles behind it. The reason the Bill is before the House today is that Parts II and IV of the 1960 Rent Restrictions Act as amended by the 1967 Rent Restrictions Act were found in a judgment of the High Court, and upheld by the Supreme Court, to be repugnant to the Constitution in that they represent an unconstitutionally unjust attack on the property rights of the citizens of the State. We have, therefore, to consider whether the Bill before us is an adequate response to what the Supreme Court called the statutory void which has resulted. The preamble to the Bill suggests that the purpose of the Bill is to provide a measure of protection in conformity with the Supreme Court decision in order to enable legislation to be prepared and initiated. But the central provisions of the Bill before us were contained in the parts of the Rent Restrictions Act which were found to be repugnant to the Constitution. Section 5 repeats section 29 of the 1960 Act. Part IV of the 1960 Act centres around section 29. Section 29, therefore, is central to Part IV of the 1960 Act, that part which has been found to violate the property rights of citizens.

The reason that section 5 has to be enacted is that it ceased to be law at the date of the High Court judgment, namely, 18 April 1980, and it is not now law, so that the House is being asked to place on the Statute Book legislative provisions which both the High and the Supreme Courts have said are repugnant to the Constitution because, in the words of the Supreme Court judgment, they are an unconstitutionally unjust attack on the property rights of a section of the community.

It is sought to justify this measure on two grounds: first, that it is temporary, and, second, that it is an attempt to implement the recommendations of the Supreme Court. Let us take the first point. No argument is needed to reject the proposition that the Oireachtas should do something which is contrary to the Constitution simply because the unlawful Act is to be temporary. Is the Oireachtas to be told it is all right to do something unconstitutional because after all we are only doing it for six months? One does not need to argue against that kind of justification. It is totally unreasonable to say that we can deprive a section of the community of their constitutional rights simply because we are doing it only for six months. We cannot do it for six months; we cannot do it for six minutes.

Let us look at the second excuse we are given for this Bill—that it is an attempt to implement the recommendations of the Supreme Court. It is, I am sorry to say, nothing of the sort. The Supreme Court never suggested that the Oireachtas should adopt the extraordinary expedient now before the House. What the Supreme Court did say was that it assumed that new legislation would be speedily enacted and that such legislation might be expected to provide for the determination of fair rents, for a degree of security of tenure and for other relevant social and economic factors. It is obvious that the court had in contemplation not the re-enactment of legislative provisions declared to be void because they were unconstitutional but rather the enactment of provisions which would be consistent with and totally in harmony with constitutional provisions and the fundamental property rights of all groups of citizens.

Again it is suggested that the proposed temporary legislation is necessary pending the preparation and enactment of permanent legislation. The Supreme Court never suggested temporary legislation. Indeed, it went on to indicate how steps might be taken for the protection of tenants pending the enactment of permanent legislation and it indicated the following steps. First, that agreement should be reached wherever possible between landlords and tenants and, secondly, that where agreement is not possible it indicated that it as the duty of the courts in dealing with ejectments to have regard to the basic requirements of justice when exercising their jurisdiction. The judgment went on to say that in this regard, in the reasonable expectation of new legislation, when a decree for possession is sought, the court should, where justice so warrants, in a case where the now condemned provisions of Part IV would have given a defence against the recovery of possession, either adjourn the case or grant a decree for possession with such stay as appears proper in the circumstances.

The onus here is placed on the courts specifically to provide, where necessary, a stay of execution. Nowhere does the Supreme Court say that it is the duty of the Oireachtas to provide a stay of execution.

I have already remarked and I now repeat how the preamble to this Bill suggests that its purpose is to provide a measure of protection in conformity with the Supreme Court decision in order to enable legislation to be prepared and initiated. But the Supreme Court never suggested temporary legislation. As I have just stated, they have taken us by the hand and shown us how the rights of the tenant should be protected pending the enactment of legislation in conformity with the Constitution. To purport, therefore, to re-enact legislative provisions declared to be unconstitutional is to usurp the constitutional functions of the Judiciary and is, in any event, a wasted exercise. Since such provisions in the parent Act have been declared to be unconstitutional then a fortiori the same provisions in amending legislation must also be repugnant to the Constitution.

The House is being asked to do something wholly without precedent. We must be aware that the vindication of the fundamental rights of citizens enshrined in the Constitution can be guaranteed only if the organs of the State act in harmony. In their judgment the High Court and the Supreme Court have discharged their constitutional function in this regard and it is now up to the Oireachtas to do likewise. This duty cannot be discharged by a measure which will negative and render nugatory and ineffective—although only for a period of six months—the decisions of the superior courts.

Apart from this fundamental argument it should be observed that it can scarcely be reassuring for the citizens who will have the vindication of their constitutional rights postponed or set at nought to tell them that this is a temporary measure. The whole notion of rent control was introduced as temporary in 1915 and temporary amending legislation continued control until it was made permanent in 1960. There are too many other examples of measures introduced as temporary which have now become part of the permanent law of the State. The measure proposed, if enacted, would be void and the proposals in it are a demonstrably unacceptable invasion of the judicial domain. For these reasons I believe the Bill should be rejected by the House.

Mrs. Hussey

I have a few brief words to say on this Bill. I listened almost unbelievingly to the contribution from Senator Cassidy. I have no doubt that the Senator is extremely concerned, as we all are, about the situation arising after the Supreme Court decision, but it would seem that she is prepared to allow countless thousands of vulnerable people to be put out on the side of the road, bringing back visions of very bad times indeed.

This Bill is a measure which had to be brought in as quickly as possible. It had to be brought in now in order to give time for thoughtful and caring consideration of the preparation of a complete set of measures both social and legislative which will protect people who are most affected by the Supreme Court decision, and this House is being given the opportunity to do something quickly to protect a great many people.

The whole constitutional question of private property arises when we discuss this issue as it arises on so many other issues also. This country must face up to the various implications of the constitutional provisions concerning private property. This shock which we all had arising from the Supreme Court decision is very good in one way in that it might make us all give our full attention to the implications for the ordinary citizen and for social legislation of the constitutional provisions on private property.

However, this Bill before us was envisaged and organised by the previous administration who were absolutely clear in their undertaking to protect the vulnerable after the Supreme Court decision. It would be totally unthinkable either to leave the situation as it is or to rush through very major legislation without giving it proper time for preparation.

Professor Murphy

I must first express my surprise at Senator Cassidy's contribution. I understand that this Bill was drafted by the outgoing administration of which Senator Cassidy, as far as I know, was a supporter. In the Dáil the Bill, although criticised in detail, was accepted in a bipartisan spirit. It seems to be a very independent stand indeed for Senator Cassidy to be challenging the whole Bill.

Like Senator Hussey, I can say that the measure before us makes me think a little about the basic issues which the Bill raises, apart from the immediate emergency, so to speak. The first thing that any Member of either House must think about is the alarming extent to which the courts are now having to tell the Oireachtas how to run its business. This, I hasten to add, is the fault of the Oireachtas. In recent years there have been numerous cases in which it was quite obvious that because the Houses have neglected the legislation, that legislation has been pointed out to be defective and anti-constitutional. I think many Senators would share my views and my uneasiness about this kind of legislation by court decision.

The other fundamental reflection raised by the Bill and by the circumstances which gave rise to it is the way in which the courts seem to be constantly interpreting the Constitution as upholding the rights of private property against the common good, so that it is not simply the rights of landlords of rent-controlled premises that are being upheld. On other occasions the rights of ground rent landlords and their right to be compensated have been upheld, again based on the interpretation of the privacy of private property as against the common good. Land speculators whose property is required for public development also are considered to be entitled to compensation.

I do think that when the framer of our Constitution went to work the terms "property" and "private property" were not really meant as the right of large landlords or land speculators or anything of this kind. In Deputy de Valera's day "property" meant property in a distributivist sense, in the vein in which people like Chesterton and Belloc used it, the property of the small man. In the way things have turned out and in the various court decisions in these matters that is not the sense in which property is being emphasised.

The Minister's statement is an oblique rebuke to the courts and very rightly emphasised Article 43 of the Constitution which might well be receiving more attention from the courts than some of the other articles. Article 43,2.2º clearly de-limits the rights to private property in the interests of the common good. Article 45 in that section of the Constitution, which is not cognisable by the courts, emphasises the importance of the weaker sections of the community. I should be glad indeed if this present temporary measure were to prompt the Government to consider the much larger issues which arise out of the interpretations of the courts in these matters.

Possibly Senator Cassidy's point is that the measure is unconstitutional. I am at the moment prepared to accept the consensus in the other House and the Minister's assurance that it is not anti-constitutional. One approves of it as an emergency measure. I share the reservations of people who are concerned about section 2 which limits this operation to six months. This will certainly concentrate the minds of the parliamentary draftsmen very much. Section 4 is very obscurely worded.

I am glad, like Senator Hussey, that the interests of the poor, the elderly and the infirm, pensioners and so on, who would seem to be the greatest victims of the consequence of the court's decision, will be protected or at least will be given a stay of execution, so to speak. It has been pointed out that they suffer as much psychologically as materially from the consequences of the court decision. Senators have received a memorandum from Threshold, which is a voluntary housing body, which informs, and advises and does research on certain housing conditions — an admirable organisation. The memorandum they have sent us is informative and well researched. Perhaps it will be more useful later on when more substantive legislation is being considered. It points to the curious lack of data to which the Minister refers in his address. It points out also some of the consequences of the court ruling which have already become evident. On page 11 of the Threshold memorandum it is stated:

One case of which we do have information involves a group of some 85 controlled tenancies situated in a central Dublin area and owned by a single company. Before the High Court decision the dwellings were on offer to the tenants at an average price of around £400. In the weeks following the decision the asking price has risen to figures ranging from four and five thousand pounds. The asking price for tenant purchase was dramatically affected by the court decision.

The memorandum from Threshold also very interestingly points out the problems that landlords have as well as tenants. They point out that the whole rent control sector is a problem area for landlords. Page 7 of the memorandum says:

Rent Control has in this way, actually encouraged the neglect of residential property and dwellings have thus been lost from our housing stock which could have been maintained for relatively modest maintenance outlays spread over a number of years.

I am not going to develop my final point because there will be a further opportunity to do so but the term "landlord" is not uniformly a disparaging one. There are Rachmans in the business and of course we are all conditioned by the historical connotation of the term "landlord" or the folk historical connotations there might be. But in fact not all landlords were baddies and not all tenants were goodies. Just as 19th century landlords in Ireland sometimes were simply unable to improve the conditions of their tenants because they were impoverished, there are landlords, it is a matter of record, who are poorer than their tenants and there are documented cases of well off people paying ridiculously nominal rents to landlords who are poorer than themselves.

This anomaly raises the final question of what will be the eventual outcome of the substantive legislation. It is the policy, as I understand it, of the Government and of the constituent parties which make up the Coalition to implement the rent tribunal's fair rent proposals. The trouble here is that if you implement fair rent, and a rent tribunal will obviously be weighted in favour of the tenant both in terms of rent, fixity of tenure and so on, the landlord may well become an obsolete phenomenon in all this. In other words, the landlord will not consider it worth his while to invest. As the Threshold memorandum pointed out, rent controlled property tends to decay, become dilapidated, because it is in nobody's interest to maintain it. Therefore, the Environment Department may well consider, when they are framing the more substantive legislation, that in the end the appropriate remedy is for the State or local authorities to purchase properties like this.

In The Irish Times of 14 July a colleague of mine from University College, Cork, Mr. Donal Nunan, an economist, had an article which is relevant to our present consideration. This is his ultimate conclusion: “The appropriate remedy is for the State”—and I would put in as an alternative “or local authorities”—“to purchase the properties in question rather than bring in a general system of fair rents which will compel all landlords to subsidise the accommodation of their tenants; and not because of their proven greater financial capacity to do so compared with the rest of society, but because they happen to be landlords.” A more useful form of rent control, he concludes, would be for the State to encourage the supply of additional accommodation to let rather than penalise its voluntary provision. I congratulate the Minister on his appointment. I am very glad to see him here and I hope that both of us will see each other here for some time to come.

Mr. Harte

I share Senator Murphy's last remarks and welcome the Minister. He has a very onerous task before him but I know he is able for it. With regard to the Bill, I think Senator Cassidy's case falls down. She quoted certain sections of Article 43 of the Constitution, which protects the right of property, which states that the State cannot legislate against that right, and which establishes the right to inherit property. The former Minister for the Environment was quite correct in the other House when he quoted Article 43 and read the various sections. He quoted Section 2.1º, which reads: "the State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought in civil society, to be regulated by the principles of social justice." Paragraph 2 provides that: "The State, accordingly may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good." That is what is happening in this case and what motivated the former Minister for the Environment when he brought in the legislation. Senator Cassidy's argument fails because her case was largely based on the fact that people had certain rights, that those rights had to be protected and that you could not do anything to protect those rights. However, in fact the Constitution says that you can. This is what the Bill is doing — it is protecting those rights over a limited period.

It would be a strange Constitution if it did not give that sort of protection. If we had not a Constitution fellows like me would be standing up screaming about people who lived in houses for up to 60 and 70 years of their lifetime and maybe longer. These people are on fixed rents. Then somebody by some sort of speculative deal, takes over control of that property and stipulates conditions they just cannot afford to live up to. Eventually an eviction order is given against them. Now, we could not, whether we have a Constitution or otherwise, put up with that situation.

The fact is what we are doing is constitutional. There is a section in the Constitution which provides for it. The former Minister was guided by that and I am glad that he took the initiative in this respect.

The arguments advanced by Senator Murphy were very interesting, but they would be more suitable for a much wider debate on the substantive legislation, which, in fact, will be needed. The former administration introduced a Bill which would have been welcomed by all sides. This Bill was accepted in the other House — there was a mutual acceptance of it there and I cannot see how we can take any other line of action on this Bill in this House.

The people now need a degree of security. The Constitution says that we should give it to them and the Bill proposes to give them that security of tenure and protection against an increase of rent for a period of six months. The other Acts that were introduced earlier did, in fact, allow people to get increases in their rents and, in that sense it looked after the owners of property.

In the short-term, we need this measure to look after those in society who cannot protect themselves. I would suggest to the House that it is urgently needed and that we should not delay it.

Ruairí Brugha

It is fairly obvious, following the Supreme Court decision, that some measure was necessary to protect the rights and security of those in controlled rent situations. The need for this emergency legislation is a fairly serious reflection on all administrations going back over very many years because, as has been said already, the provisions are to protect the common good, which is the greater good of the greater number of people and, particularly, families in certain circumstances in these homes. On the other hand, without in any way involving ourselves in defending vested interests, or landlords as they are called, we must all acknowledge that over the years there have been very many injustices to people who purchased houses and let them for rent, pre-1945, as an investment on which they could retire but found subsequently—not only up to the time that rates were removed—they were liable in many cases for repairs in situations where the income from the rent was totally unrealistic. In that sense, the courts have moved to the side of those to whom an injustice has been done. It is a reflection on all administrations, and I, together with other Members of the House, have sympathy with the Minister in that some measure was necessary.

The conflict in Senator Cassidy's mind is one that is in all our minds and it is difficult to perceive how, if there is a Constitution, you can play ducks and drakes with it. How can you tell your courts to postpone the effective law, because that is what this Bill intends to do? From the point of view of the common good and of the natural sympathy that we all feel for people who find themselves in a threatened situation, while it may be, as the Minister has said, ultra vires, so to speak, all our sympathies lie with protecting people for the time being. The question will resolve itself in due course as to whether a measure which postpones the effect of a decision of the Supreme Court can be found to be a practical measure at all. I would question, as it was questioned in the other House, whether six months is sufficient to enable agreement to be reached on the sort of legislation that is necessary in a situation like this, in order, on the one hand, to do justice to those who own property and have been at a very serious loss, sometimes over a life time, because of legal enactments, and, on the other hand, to defend the common interests of families who may be faced with ejection.

I subscribe to the view that if we have no certain means of solving a problem we should try whatever means is available, and this Bill appears to be the only means available to us at present. It does not stop any of us with commonsense from asking how in the name of goodness one can set aside a decision of the Supreme Court? It is difficult to perceive how one can do that sort of thing but in the common interests of people it may be justifiable for the time being.

Dr. Whitaker

I would like first to join other Senators in welcoming the Minister on his first appearance in the House.

I must confess that I, too, am still puzzled, in spite of the explanations given, and perhaps even because of the length of the recitative in the Long Title, as to how statutory restrictions pronounced to be unconstitutional by the Supreme Court can validly be re-enacted, even for a short period. I have no wish to pose as a constitutional lawyer and I would like to say that I do not regard a six months' suspension as objectionable or unreasonable, provided it can be validly put into effect.

Leaving that doubt aside, my basic concern is whether, other than in very special circumstances, rent control is a form of regulation of private rights consistent with the principles of social justice or of good economic sense.

As the explanatory memorandum reminds us, rent control was introduced as a temporary war-time measure. It could be justified when incomes, prices, fees and everything else were being controlled to safeguard the life of the community and to prerserve some measure of social equity at a time of scarcity and grave difficulties of all kinds. But rent control alone has persisted in a rigid form in peace-time. Incomes are now determined by negotiations between the parties at national, firm or individual level. Prices, in the non-competitive areas, are still subject to general surveillance but surveillance by a specialised body with access to professional advice. Allowance for cost increases is virtually automatic in price control. What is the case, economic or social, for continuing to severely clamp down the rents of a wide range of properties, subject only to such relaxations as an ordinary court may allow?

It seems that the economic case is not good, because, so far as rents are kept below an economic return, existing properties must go into dilapidation for want of adequate repair and maintenance and new properties for letting at low rents will not be constructed because the return is insufficient. In other words, the trend must be towards a dwindling and deteriorating stock of houses for letting.

Coming to the social case, I find it no less questionable, and I will try to show this by an illustration. Let us suppose that we all recognise that there is a certain amount of poverty in a particular district. Would it be thought consistent with the principles of social justice if we were to enact a law which declared that all the residents in that district were entitled to get their groceries at half price from local suppliers? The crudeness and inequity of any provision which did not distinguish between residents in need and those not in need, and inflicted the burden on suppliers irrespective of their capacity to bear it, would make such a law so ridiculous as to be unthinkable. Yet the rent restrictions code is scarcely much better. The Minister said he thought there were about 30,000 tenants in controlled dwellings; he was not too sure of the precise number, but how many of whatever number it is are in a position of need? Nobody can tell us that.

I echo here what Senator Ruairí Brugha said: it is high time for Governments to reconsider fundamentally the social justice requirement and how it can best be met in normal circumstances. There is a scarcity of the supply of rentable houses in relation to demand, and this could create opportunities to charge more than an economic rent. If there were no control, there could be exploitation through overcharging. A general surveillance over rents of particular categories of property could be exercised by a specialised professional body like the National Prices Commission. In general, however, I would favour letting economic rents prevail, just as economic prices prevail, and dealing with social needs by direct payments to supplement the incomes of those whose incomes are too low to enable them to afford to pay an economic rent. That is the way we deal with social need in all other cases. By that more rational and selective approach, market and investment distortions would be avoided and inequities as between individuals would be avoided as far as possible. The present system of rent control is unsound and ought to be replaced, I suggest, by a combination of general supervision to ensure that only economic rents are charged and social payments to supplement incomes in cases of individual need. Although only six months remain, I hope it is along these lines the Government will be thinking about appropriate policies and legislation to replace the present outmoded code.

Mrs. McGuinness

May I join with other Senators in welcoming the Minister to this House and join Senator Murphy in hoping we may be here with him for a long time? I would also like to join in the welcome to this Bill.

There may be certain difficulties about enacting this type of legislation, but there is a qualitative difference between enacting legislation for six months only, with the promise that it will be changed and reviewed at the end of that period, and saying that for an indefinite period a certain right is to be removed. In a sense, a Bill like this almost gives effect to the idea of the Supreme Court, which was clearly expressed in its judgment, that immediately after the decision there should not be a lemming-like rush of people to eject tenants or to raise rents enormously.

Senator Cassidy has set out the various ways the Supreme Court recommended that this should be dealt with through the courts, but I am inclined to think that the learned judges of the Supreme Court were a little optimistic in their view that the majority of landlords and tenants would be able to do this by voluntary agreement. Anybody who practises the law must be aware that there were large numbers of ejectment proceedings held in cold storage awaiting the Supreme Court judgment in order to rush them into court, and some kind of protection would be necessary.

The idea that the courts should deal with each case on the basis of the individual judgment of a justice is not so easy to achieve in practice where these kinds of ejectment proceedings and small landlord and tenant proceedings are dealt with in such very large numbers. To take each case separately would put the Circuit Court back to the position they were in before their recent reform where one could not get a case on for several years. It is a good idea to bring in a six months moratorium on what can be done about this while new legislation is being enacted.

As regards the almost seeming contradiction within the provisions of the Constitution about the rights of private property and the common good, there was an extremely interesting discussion on this subject some years ago in the Kenny Report. Mr. Justice Kenny wrote about the possibility of acquisition of land for building development, and discussed very fully the whole implication of the balance between the right of the individual to private property and the right of the common good. He drew attention to the situation Senator Murphy referred to where one tends to think of private property as being the house belonging to an individual person, and not property belonging to enormous development corporations or very large companies. That report would be well worth studying by those who are framing the new legislation.

As other Senators have emphasised, the difficulty in this situation is one of balance. Although research is needed into what the real situation is, it is well known that many of the people who live in rent-controlled accommodation are the poor, the weak and those in need of protection—and they do need protection—from exploitation. On the other hand it is also well known that not all those living in rent-controlled accommodation are like that. There are many landlords who cannot afford to repair their premises and there is the discouragement to bring new houses into the reasonably rented accommodation area. The crudeness and inequity that Senator Whitaker referred to is what must be avoided in framing new legislation.

Landlords must be encouraged to provide properties that will create a stock of reasonably rented accommodation. We need such a stock, particularly in urban areas. At the same time, there must be control to prevent exploitation of those who really need protection. I hope this was the direction in which the judgment of the Supreme Court was moving.

The Government have almost a monumental task in trying to frame all this legislation within six months. I would not join with people who say that one should lengthen the period because, like all human beings, parliamentary draftsmen and Government Departments tend to put things off, and the longer the period one makes it, the longer it will stretch out. If people are told that they must provide it within six months and there is a danger that if they do not do that the six months period legislation will become unconstitutional as well, it will be much more effective.

We will not then have the situation, as happened with the original rent control legislation, where it was introduced as a temporary wartime measure and lasted for the next 70 years.

The most important effect of this legislation is that it will hold the position in cold storage and as such I welcome it. When the Government bring in this awaited new legislation it will be of supreme importance that a balance be held between the danger of exploiting the weaker tenants and the danger of creating a climate where there will be no rented accommodation available.

Mr. Reynolds

I congratulate the Minister of State on his appointment. I am delighted he is appointed to the housing section. I know his interest in housing and I am satisfied that he will do a very good job. I wish him luck and every success in it. Like previous Senators, I hope that he will be there for some time.

Approximately 30,000 people are affected by this. It would be impossible to get a breakdown on that figure and that is one of the reasons for the delay of six months. If we got a breakdown we would find that 90 per cent of these people are in receipt of old age pensions, disability benefit, etc. The delaying period of six months is to see where we are going. Senator Cassidy was critical of it and that is understandable. We must remind Senator Cassidy that this Bill was inherited by the Government. It is of the last Government's making and I doubt if the Minister will accept responsibility for more than the six months' period.

Mr. Donnelly

I join with other Senators in welcoming the Minister. I wish him every success in his new appointment. It is obvious from the debate here and in the Dáil and the general response that we are dealing with an urgent and important social problem. I do not suppose one could find an issue that worries people to the very nature of their being as much as security of home and accommodation. We are all very conscious of our history in this regard and a home and roof over our head is of fundamental social importance. For that reason it is important that we have an immediate response to the decision of the Supreme Court to deal with this matter.

As public representatives we all agree that the worry and anxiety that this decision caused to people living in rent-controlled accommodation was enormous. The numbers are hard to calculate and I sympathise with any Department that has to calculate them. A figure of 30,000 has been mentioned. I thought it would have been more. That figure has to be analysed. Each of the tenants is not in the same position but the number of people who were worried to distraction by the possibility of finding themselves faced with enormously increased rents or else no accommodation was frightening. Elderly people who lived in accommodation for many years and had reason to believe they had security legally felt endangered and threatened. That worry and anxiety was sufficient to eliminate all hope of normal living or happiness in their lives. It is essential that we respond with this legislation to the Supreme Court decision.

It is a very complex and complicated situation. Many issues come before this House because that is the way society is today. It is important that we are as analytical and sensitive as we can be in dealing with the problem. Every tenant is not a poor person and everybody who owns property is not wealthy person. There are many cases of hardship on the part of owners of property who have not got the means to look after the property and are not getting sufficient income from it. That is a very grave social problem. As far as I know, if they had any legal redress available to them they had to go to court and prove financial stringency. That meant exactly what it said. They had to prove financial stringency, that they simply could not continue to live unless they got the support of the court in acquiring the property. That also has to be balanced, understood and fed into any subsequent legislation that will follow this Bill, hopefully in six months' time. Our job as legislators is to be aware of that and to respond to it.

While we are dealing today with this Bill we are really discussing the overall problem in its entirety, and the subsequent debates in the legislation to follow will be of fundamental importance. We are dealing with a problem of accommodation which has changed dramatically since the 1960 Act which was the subject of the Supreme Court decision. The whole situation in relation to housing and accommodation has changed dramatically as our society and our economy has changed. We have to take into account the enormous effect of inflation over that period of time, the population growth and the justifiable expectations of people that they and their children are entitled to share in the progress of the country. We must also take into account the requirements in providing that accommodation, the building skills and the financial structures needed when we set about drafting the subsequent legislation, which really has to be the solution to this problem.

We accept we have an urgent fundamental problem now and that it is right to respond to it in this way. But we should accept that we as legislators must have the ability and sensitivity to respond to this highly complex problem in a way that recognises the apparent conflicting needs of both the landlord and the tenant.

The question of the constitutionality of this Bill providing that solution to the problem that would otherwise be created is so important that I and everybody else wants to be assured that this solution is not open to legal attack and that it cannot be found to be unconstitutional. I hope that the essential job we have set ourselves to do is something that will be done bearing in mind that six months is a relatively short time. It is a very long time for the tenants to be left without protection, but in terms of drafting legislation of the complexity and sensitivity which will be needed it could turn out to be a short time. If it is necessary to come back again, perhaps the Minister could assure us that the situation will be met then either with a subsequent Bill or with some solution to ensure that this gap is provided for in a way which is free from legal attack on constitutional grounds and in such a way that we as legislators on this very fundamental social problem can respond to the need with sensitivity and with social justice in a way that is not frustrated by legal argument or legal quibble.

Minister of State at the Department of the Environment: (Mr. F. O'Brien)

I thank Senators for their congratulations and good wishes to me in my new office. Having for a long time had a deep interest in local government matters I am sure I will find my new responsibilities very rewarding. I also thank the Senators for their constructive and helpful approach to the Bill so that it may be indeed speedily enacted. Among my first duties as Minister of State has been bringing forward this legislation to safeguard the position of tenants of controlled dwellings whose continued occupation of their dwellings may have been put in doubt by the decision of the Supreme Court.

The Bill has two main provisions. These are in section 4, which for the six months during which the Act is in force makes an increase in rent of a controlled dwelling unenforcible, and in section 5, which for the same period reintroduces restrictions on the landlord's rights to recover possession of a dwelling. The Bill is an emergency measure to deal with a major social problem and to provide the Government with a breathing space in which to examine the full implications of the Supreme Court judgment and so as to ensure that we bring in a legislative measure to meet the situation on both sides.

Senator Cassidy was very concerned about the constitutionality of the Bill and it is only right that these fears should be expressed in the House. It is not my wish to usurp the Supreme Court judgment. One has to be guided by natural justice. The Bill is founded on important principles enshrined in the Constitution. This is amply demonstrated in the Long Title of the Bill. Article 43 of the Constitution, mentioned in the Long Title of the Bill acknowledges the natural rights to property but recognises that in a civil society those rights ought be regulated by the principles of social justice. The State may as occasion requires delimit by law the exercise of those rights with a view to reconciling their exercise with the exigencies of the common good. This is what we are trying to do.

This decision was thrust upon me in my first week as Minister. The problem has caused me and others in the House great distress as we are aware of a larger number of people who are at risk. We are asking for the six months so as to gain a breathing space in which to bring in substantive legislation which will be fair to everybody and which will interpret the Supreme Court decision. That is a clear indication that it is not my wish to infringe the Supreme Court decision. We are acting in the spirit of that decision. They indicated that there was a void and that legislation was necessary. Given that legislation is necessary, they requested the lower courts not to make decisions or to defer the implementation of such decisions. We accept the Supreme Court decision as being correct. We need time and, given the provisions of Article 43 of the Constitution, we are acting constitutionally. Time will ensure that we can, in the spirit of the Supreme Court decision, implement the substantive legislation needed.

It is important that we have time. Members expressed fears that six months would not be long enough. I have instructed my Department to ensure that a Bill will be before the House in the next session and I hope it will be law before Christmas. That is what we will be aiming for. I do not like the idea of temporary legislation. This is not in the spirit of the Supreme Court's judgment. It is not the spirit of what I want here in this Bill. We are sincerely seeking a breathing time in which to implement the Bill. Neither do I think we are being emotive when we say that there are a lot of elderly people involved. The very fact that this restriction goes back a number of years means that most of the people affected would be elderly, many living on fixed incomes, their livelihoods at risk. It is important, therefore, that their fears be allayed. I believe this is causing grave concern to a number of people. The speedy passage of this legislation will help to alleviate these very genuine fears. It must be admitted that a number of these people have already been approached and asked for exorbitant rents. That reason alone is sufficient for having this six months in which to operate.

I am happy also that by and large the House recognises the need for this six months stay. I am happy also that the Bill will pass all Stages quickly. By so doing we can demonstrate that the interests of the people at risk are protected, given the Government's commitment that there will be in the substantive legislation fixity of tenure and that there will be an allowance added to the supplementry allowance to augment their rent. By devising such measures we will be meeting the wishes of the Supreme Court judgment. People have asked why we wait for the courts to take decisions for us. That is a valid question but one can only think of the political consequences of its implementation. Successive Governments may have been very slow to implement the provisions of the legislation. Now that it has been thrust on us by the Supreme Court there is no alternative to taking these difficult decisions.

I should like to make a further comment on this matter. The Supreme Court judgment will bring about fundamental changes in the respective positions of landlord and tenant. Perhaps it is true to say that in a very short time landlords stand to benefit from the decision. In the Dáil I asked that they be patient and wait six months. They have had a decision in their favour. It is not a question of this Bill upturning or changing the decision of the court; it is not and that has been accepted. That is why I would ask landlords to be patient for the next six months. I can assure them that whatever legislation is brought before the Houses of the Oireachtas will be fair and in accordance with the Supreme Court judgment. Basically that is what we all want to see.

Again, that is the reason I ask that this House pass this Bill quickly. Certainly it should be debated fully to ensure that what we are doing is correct. It is my view that this Bill is constitutional and is in accordance with the Supreme Court decision. I again assure the House that we will have the appropriate legislation through within the six months.

Question put and agreed to.

Agreed to take remaining Stages today.