Seanad Éireann debate -
Thursday, 16 Jul 1981

Vol. 95 No. 23

Rent Restrictions (Temporary Provisions) Bill, 1981: Committee and Final Stages.

Section 1 to 3, inclusive, agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Ruairí Brugha

I should like to repair an unintentional omission in regard to welcoming the new Minister, Deputy Fergus O'Brien, to the House. I wish him well in his office.

On section 4, I should like the Minister to explain what I interpret as being that if an agreement is arrived at between a tenant and a landlord it will not be approved of. The section reads:

An increase in the rent of a controlled dwelling notified by the landlord to the tenant on or after the 18th day of April, 1980, whether before or after the passing of this Act or agreed to by the tenant on or after that date and before such passing shall not be enforceable while this Act is in force.

I would like the Minister to explain the reasons, if an agreement is arrived at between a tenant and a landlord in relation to a restricted property, the Act does not permit that agreement to become enforceable.

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

Any agreement made after the passage of the Bill will stand. There is no question about that. It is a question only, after the High Court decision, where an agreement might have been made that there may have been some doubt about how it was arrived at. There may have been a worry in some people's minds though they may have agreed. But after the Bill is passed people will be aware that they did not have to make any agreement. Agreements made prior to the passage of the Bill and after the High Court decision would not be enforceable.

Ruairí Brugha

I take it the Minister has said that any agreement that was arrived at could work. But the section says: "while this Act is in force".

Mr. F. O'Brien

Yes, after the Bill has been passed.

Ruairí Brugha

Any agreement arrived at between a tenant and landlord is not enforceable——

Mr. F. O'Brien

Is enforceable after the Act has been passed.

Ruairí Brugha

I am sorry, the section says the reverse: "...before such passing shall not be enforceable while this Act is in force".

Mr. F. O'Brien

As I indicated, any decision made between the time of the High Court decision and the passing of the Bill is not enforceable. If an agreement was made within that period it is not enforceable. It is enforceable if after the passage of this Bill a tenant and a landlord make an agreement. Such agreement is then valid.

Ruairí Brugha

That is quite clear. I understand that any agreement arrived at between 18 April 1980 and the date of the passing of this Bill will not be enforceable but any agreement made subsequent to the passing of this Bill will be enforceable.

Question put and agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Mrs. Cassidy

I would like to ask the Minister a question on subsection (7). I think I am correct in saying that section 5, apart from subsection (7), is taken work for word, line for line, comma for comma from section 29 of the 1960 Act. It leaves out the small subsection (4) of the 1960 Act which I do not think has any relevance now. These are the provisions which have been found unconstitutional; they have all died. Would the Minister agree that we are now in the process of resurrecting them? On subsection (7), is it not a reversal of the orders for possession given by the courts, whether it was the District Court, the Circuit Court or the High Court, since 18 April 1980? Is it not a reversal of existing orders of all the lower courts?

Mr. F. O'Brien

This subsection protects the position of any tenant against whom an order for possession might have been granted on the strength of the High Court order or the Supreme Court decision.

Mrs. Cassidy

Let me put it in this way. A man is entitled to go to court to have his case adjudicated on. In many cases the courts will have decided in favour of the landlords since 18 April 1980, 15 months ago. What we are trying to do is say that in such cases these orders must be reversed and, having power to do that, is it not blatant interference with the functions of the courts?

Mr. F. O'Brien

I understand the Senator's position. Any order made after the Supreme Court decision cannot be implemented.

Mrs. Cassidy

With respect, I think it reads any order that has been made subsequent to the decision of the High Court on 18 April 1980. Is it not any order made since 18 April 1980 or is it any order since 29 June? As I read it, it seems to suggest that orders made since 18 April 1980, if they have been made by any of the lower courts in favour of the landlords, will have to be reversed.

Mr. F. O'Brien

Yes. If a tenant is still in possession that would be correct.

Mrs. Cassidy

A person is entitled to know where he stands if he goes to court and a decision is taken in his favour and we may take it that if the courts decide in his favour they will do so on an impartial basis. How can we come along then and say that these orders must be reversed? I have never seen a section like it in any Act of Parliament; I hope I never will see another one.

Ruairí Brugha

Section 5(1)(h) refers to where the dwelling is reasonably required for purposes of the execution of duties, powers or requirements of a Minister of the Government or the Land Commission and so on. Are these normal compulsory acquisition requirements or what are they?

Mr. F. O'Brien

That is a re-enactment of the sections of the 1960 Act.

Ruairí Brugha

Can the Minister say if it refers to exceptional compulsory acquisition?

Mr. F. O'Brien

Yes, CPOs.

Question put and agreed to.

Sections 6 and 7 agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

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

Mrs. Cassidy

Having pointed out what I consider to be the fatal flaw in the Bill I am confined now to what is actually in the Bill. It would be correct to say that the preamble is an incorrect description of what is actually in the Bill. Sections 3, 5 and 6 completely reverse the decision of the Supreme Court. Section 5(7) reverses all the existing orders of our lower courts.

I do not think it is important or even relevant that this Bill has been described as a relic of the last administration. I would like to think that those who are affected by it, whether they be tenants or landlords, would find some consolation in the fact that Fine Gael are right and Fianna Fáil are wrong. However, I do not think that is relevant at all. The only thing that is relevant is that we should know what we are about here. What we are about here today is to be concerned with the separation of the judicial and the legislative functions. Perhaps the events of the last few weeks have so befogged and befuddled our minds that we are too tired from standing on kitchen chairs outside chaple gates and mouthing inanities at the electorate that we have let this fact escape us. The organs of the State must always work in harmony. They must never be set at loggerheads. Our democratic structure is frail enough and is under enough stress from without so that we should be very careful not to subject it to attack from within.

Mr. F. O'Brien

It is not my intention to usurp the functions or powers of the Supreme Court. This has been trust on us. It is not necessarily the fact that most of us had a campaign to participate in over a number of weeks and that we are tired. We were faced with an urgent situation and we had to face it in a way that was fair to everybody and interpret what the Supreme Court wanted. We believe, given Article 43 of the Constitution, we are not acting unconstitutionally. We are trying to allay the fears of many people who will be dramatically affected by the Supreme Court decision. We do not wish for conflict and I believe we are acting in unison in interpreting the Supreme Court decision. We are doing what is right by interpreting the Supreme Court judgment correctly and ensuring that there is equity and social justice prevailing in our society.

Ruairí Brugha

The Minister is being flexible.

Mr. F. O'Brien

It is a nice way of putting it.

Question put and agreed to.