The Bill extends the provisions of the Rent Restrictions (Temporary Provisions) Act, 1981, to 25 July 1982 or to the date of commencement of the Housing (Private Rented Dwellings) Act, 1982, whichever date first occurs. The Bill is required in the event that the Housing (Private Rented Dwellings) Bill, 1982, is referred by the President to the Supreme Court in accordance with Article 26 of the Constitution to test the constitutionality of the Bill. The extension of the temporary legislation will ensure that tenants of controlled dwellings will continue to be protected against rent increases and against demands by landlords for possession of their dwellings. We shall in the course of the day's sitting be dealing with the permanent Act and in these circumstances I think I need not go further in relation to this short Bill which I commend to the House.
Rent Restrictions (Temporary Provisions) (Continuance) Bill, 1982: Second Stage.
I do not propose to dwell too long on this short Bill, because, as the Minister says, we will be dealing with the longer Bill and substantial legislation later on. I would like to express our support for the short Bill. The Minister has met very fairly the view of the other House and the wish of the Members of our party in the other House that this temporary provisions continuance Bill should be introduced. In that regard I should like to thank the Minister for his co-operation and courtesy and to extend a welcome to him on his appointment as Minister and on his first appearance in the House. I hope that he will have a successful, though short, tenure of office. The main Bill will be discussed later and I have nothing further to add on this measure.
I cannot be as brief as the Minister or Senator O'Leary in relation to this Bill. I welcome the Minister on his first visit to this House since taking office.
It is necessary to examine the background to this Bill in more detail than the Minister has done in his speech. I say this because of the very serious underlying problem which faces the Seanad in the area of controlled tenancies, both in this Bill and the other Bill which we will discuss later. I do not propose to make any party political points or to allocate blame in this matter to any Minister or Government. This is a very serious issue which has caused immense worry and anxiety and, in some cases, physical illness. In a number of cases it has led to steps being taken which were not warranted under the then existing law. The problem has also been of concern to landlords, particularly where the landlord is in more deprived circumstances than the tenant — in other words, where the tenant has taken advantage of the controlled tenancy under the pre-existing law and is paying a very low rent whilst enjoying, perhaps, a much higher income than the landlord. I recognise that in some cases there are two sides. There are some instances where the equity is on the side of the landlord, but these are only some individual cases. The main thrust of the legislation dealing with this problem is addressed to seeking to secure a reasonable position for the tenants of premises which were formerly controlled. It is worth confessing that we, as a Legislature, have singularly failed to do that since the problem arose in June 1981.
I do not think any of us can be happy with the long period that has expired since June 1981 and the heartache, worry and concern that have been caused to a very substantial number of tenants affected by the decision of the Supreme Court and by the legislation which ensued. We must be particularly concerned when we know that very many of these tenants are elderly; very many of them are living in very deprived circumstances as it is and they have no alternative option if they are forced to leave those premises and they could not afford to pay some free market rent if that was imposed on them. They have lived in great fear and great anxiety. I do not believe that any of us can be happy about the way in which successive Governments and we, as a Legislature, have responded to that problem. I do not believe we have given it sufficient priority. I do not believe we have addressed ourselves with anything like the degree of urgency that we should have to redressing the problem.
The first legislative measure that was passed is the one we are seeking to continue in this Bill. It was the Rent Restrictions (Temporary Provisions) Act, 1981 which came into effect on 16 July 1981. That Act froze the pre-existing position, continued the pre-existing position pending the enactment of legislation to deal with the issues raised by the Supreme Court. That was done in July because the Oireachtas was about to go into summer recess. That meant that although the legal position had been successfully challenged, the response at that time of the Oireachtas was to say, "Well, we are going to allow it to continue for a short period while we address ourselves to the new legislation which will replace the old legislation". It effectively meant that the sections of the legislation which had been struck down as unconstitutional were being continued for a temporary period.
The question we have to ask ourselves, and it is a very serious question, is how long can this continue? How long can we go on freezing a position which was declared by the Supreme Court to be unconstitutional? It is an invidious position to be in and indeed I do not want to add further to the anxiety and the alarm of the tenants who are protected by the 1981 Act and now this Bill proposing to continue that Act freezing the existing situation and continuing the rent controlled premises. It raises very important and complex legal issues and even issues which bring into very sharp focus the relationship between the Judiciary pronouncing upon the constitutionality of legislation and the Oireachtas concerned about policy in relation to tenancies, to rent and rent restrictions generally and in relation to ownership and the control of land and rights that flow from that.
I have serious doubts about this Bill because as it is going through this House it is proposing to continue until 25 July, that is for more than a year, a situation declared unconstitutional by the Supreme Court in their judgment. That is very worrying. That is a problem that the Minister faces indeed and I have considerable sympathy for him because he does not have any easy options on it. He is faced with the need for a holding position until the Government are sure that the next Bill we are going to consider this afternoon is constitutional and until the question has been determined of whether it, too, will be referred to the Supreme Court under Article 26.
I have to put a question to the Minister. Has he considered the possibility that this Bill might be referred to the Supreme Court under Article 26? The position as set out in the first of the judgments of the Supreme Court which was handed down in a decision called Blake and Madigan against the Attorney General, was handed down in June 1981. That decision appeared to state in unequivocal terms that the particular sections were in breach of one of the two Articles of the Constitution which protect property rights, namely Article 40.3.2. Since we are proposing in this Bill to continue that situation in operation until next July, it is on this Bill that it is appropriate to refer to the reasoning and conclusion of the Chief Justice in delivering the judgment of the Supreme Court. There was only one judgment of the Supreme Court because it was a judgment on the constitutionality of the particular measure.
I propose to quote the extract from the judgment from the report in the Irish Law Reports Monthly, Volume 1, No. 2, 1981. It does not contain the full judgment which I have here but it is a convenient source from which to quote what the Chief Justice had to say. It is appropriate to start at the part of the judgment where he considered the relevant Articles which protect the property rights of citizens. We have to look at this because we are the ones who will have to take the policy decisions. It is our responsibility and has been since June 1981 to take decisions which will stand up on this issue and to afford protection, particularly to the most vulnerable sector of our community.
In looking at Articles 43 and 40.3.2 the Chief Justice in the Report stated:
Article 43 is headed by the words "Private Property". It defines the attitude of the State to the concept of the private ownership of external goods and contains the State's acknowledgement that a natural right to such exists, antecedent to positive law, and that the State will not attempt to abolish this right or the associated right to transfer, bequeath and inherit property. The Article does, however, recognise that the State "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. It is an Article which prohibits the abolition of private property as an institution, but at the same time permits, in particular circumstances, the regulation of the exercise of that right and of the general right to transfer, bequeath and inherit property. In short, it is an Article directed to the State and to its attitude to these rights, which are declared to be antecedent to positive law. It does not deal with a citizen's right to a particular item of property such as a controlled premises. Such rights are dealt with in Article 40 under the heading ‘Personal Rights' and are specifically designated among the personal rights of citizens. Under this Article the State is bound, in its laws, to respect and as far as practicable to defend and vindicate the personal rights of citizens.
There exists, therefore, a double protection for the property rights of a citizen. As far as he is concerned, the State cannot abolish or attempt to abolish the right of private ownership as an institution or the general right to transfer, bequeath and inherit property. In addition he has the further protection under Article 40 as to the exercise by him of his own property rights in particular items of property.
The question of the relationship of Article 40.3.2 to Article 43 was discussed in The Attorney General v Southern Industrial Trust Limited and Simons 1960 94 ILTR 161. In that case Lavery J. when delivering the judgment of the court said, at p. 176: ‘In any event, in the opinion of the court, the property rights guaranteed are to be found in Article 43 and not elsewhere, and the rights guaranteed by Article 40 are those stated in Article 43.’ The court is unable to accept this view. Article 43 does not state what the rights of property are. It recognises private property as an institution and forbids its abolition. The rights in respect of particular items of property are protected by Article 40.3.2, by which the State undertakes by its laws to protect from unjust attack and in the case of injustice done, to vindicate the property rights of every citizen. It is the duty of the courts to protect such property rights from unjust attack and the decision as to what is such an attack is to be made by the courts.
An Leas-Chathaoirleach
Excessively long quotations are not in order. Short quotations are all right.
I accept that as a general ruling, but it is very difficult to understand the problem and to examine, from a legislative perspective, a Bill to deal with that problem without knowing in fairly substantial detail, what the legal position is. This may not be easy listening and I sympathise with some of my colleagues who sit here patiently during an examination, but I submit it is necessary to know what precisely was the problem the Supreme Court identified, why the Supreme Court struck down the legislation, and then to ponder on whether we can reinstitute that position and continue it until 25 July. That is the Bill before us. I will try to limit my quotations in so far as possible, but I submit that I must be able to refer to the relevant passages of the judgment.
The next relevant passage is where the Chief Justice applies the Article 40.3.2. of the Constitution and said:
In this case the plantiffs claim that their rights to the private property in question have, by the impugned legislation, been subjected to unjust attack and that what has been done is in breach of Article 40.3.2. of the Constitution. In the opinion of the court, this legislation cannot be regarded as regulating or delimiting the property rights comprehended by Article 43. It accordingly requires to be examined for its validity in relation to Article 40.3.2. The question, therefore, to be decided is whether the impugned provisions of the Act of 1960 (as amended) constitute an unjust attack on the property rights of the plaintiff.
I now come to the two parts of the judgment where the Chief Justice applied the law to the facts, and found it was unconstitutional. At the top of page 45 of this report he said:
In the opinion of the court, the provisions of Part II of the Act of 1960 (as amended) restrict the property rights of one group of citizens for the benefit of another group. This is done without compensation and without regard to the financial capacity or the financial needs of either group, in legislation which provides no limitation on the period of restriction, gives no opportunity for review and allows no modification of the operation of the restriction. It is, therefore, both unfair and arbitrary. These provisions constitute an unjust attack on the property rights of landlords of controlled dwellings and are therefore contrary to the provisions of Article 40.3.2 of the Constitution.
In addressing himself to the question of the landlord's lack of power to recover possession, the Chief Justice stated:
In the view of the court, a restriction to this extent of a landlord's right to obtain possession of rented premises is not in itself constitutionally invalid, provided the restriction is made on a basis that it is not unconstitutionally unfair or oppressive, or has not due regard both to the personal property rights of the landlord and the rights that should be accorded to tenants having regard to the common good. However, the restriction on the right to recover possession contained in Part IV is not distinguishable, or capable of being saved, by such considerations. It is an integral part of the arbitrary and unfair statutory scheme whereby tenants of controlled dwellings are singled out for specially favourable treatment, both as to rent and as to the right to retain possession, regardless of whether they have any social or financial need for such preferential treatment and regardless of whether the landlords have the ability to bear the burden of providing such preferential treatment.
They were the grounds on which the Supreme Court found the relevant provisions of the existing legislation unconstitutional. In July 1981 we had the temporary Bill which re-enacted those provisions for a period. We are now proposing in this Bill to continue the same provisions until July, unless the second Bill to be taken today is passed and enacted into law in the meantime and replaces that measure. There is a legal difficulty in doing that. The Legislative last July said it was necessary to do something for a temporary period — and there is a portion of the judgment of the Supreme Court that I have just referred to where that is one of the criteria mentioned:
This is done without compensation and without regard to the financial capacity or the financial needs of either group, in legislation which provides no limitation on the period of restriction.
That is only one of the grounds on which the original legislation was found to be unconstitutional. When the first temporary provision was brought in, there was a limitation on it and we extended it; now we are proposing a further extension for more than a year. This raises a very serious question as to whether that is the kind of very limited and temporary provision which might be permitted by the passage I have just read in the judgment of the Supreme Court.
The reason I feel it is appropriate to ponder on this is that it gets back to my original point. Since the very far-reaching and significant judgment of the Supreme Court in June 1981 — a judgment which affected critically the stability and security in their homes of very vulnerable people — this Oireachtas has not addressed itself to this matter with sufficient care, attention, time and energy. Perhaps we should not have had a summer recess; perhaps we should have had far more sittings in the period between September and Christmas, and since, in which to fully thrash out the kind of replacement legislation we sought to enact. At the moment, there is a cloud over this Bill, as well as a potential cloud over the Bill we will be considering later and on which I will make my comments in due course.
I would like to turn to an even more difficult area. In looking at the interpretation by the Supreme Court of the Articles on property, it is clear from the judgment in the Blake and Madigan case that in considering the property rights of individuals, the Article in question is not Article 43, which guarantees no abolition of property rights, but Article 40.3.2. It is worth looking at that Article because it is one of the most basic Articles for the protection of the personal rights of individuals in the Constitution which has contributed more to a growing jurisprudence in the protection of human rights than any other Article. Article 40.3 provides:
1º The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of a citizen.
2º The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.
We are talking about vindicating property rights. The legislation was struck down as being unconstitutional because it did not adequately vindicate the property rights of the class of landlords involved in relation to the class of tenants involved — the tenants in rent controlled properties.
The problem for us as elected representatives, as people who are concerned about policy in this matter, is that that Article is extremely difficult to contemplate amending because it is the key Article in the protection of personal rights. It is not just a question of somehow adjusting that Article and feeling that we can get over this problem, because I do not believe we have a problem which arises from the particular interpretation by the Supreme Court of property rights — perhaps one could say, not so much the interpretation, but the application of their interpretation to the cases before them. I am inhibited in my remarks in relation to the Supreme Court by the fact that I am a practitioner and, even with the privilege of this House it would not be appropriate for me to do more than point up the problem which arises, which is there in this Bill and the next Bill, and which the Minister would have to see, about how the Legislature is to respond to the particular interpretation of words. That is the proper role and function of the Supreme Court — to interpret words. I express this view because I would be interested in the contributions of other Senators on this point, as it is one of the most important things we could be debating and I am glad we have this opportunity to discuss it. It seems that when property rights are related to land, the application by the Supreme Court of the principles which derive from the Articles is much more absolute. There is much greater protection of a property right in relation to land than there is for any other property right. For example, publicans, hotels or shops cannot charge what they want, they cannot make a property profit to the extent they want, particularly in relation to prices that can be charged in public houses or hotels. The trade would respond in dismay to the responsible Minister that he was putting them out of business, that they could not continue. I submit that that is a property right. Yet it would appear that there can be very substantial regulation and control of that property right. It appears to be much more difficult to have control of a property right to land. It is as though there was some difference in the way in which the Supreme Court approach the application of the principles relating to property, when it is land.
This is more evident in the second judgment of the Supreme Court to which I will refer when we are discussing the next Bill. It seemed evident that when the Supreme Court delivered judgment on the reference in the Bill passed before Christmas that the principles applied appeared to rule that the rent a landlord was entitled to get was the market rent, and if there was any inroad on that, for example, was as there was in that legislation by having a phased period over five years, that did not defend and vindicate the property right of the landlord. There are inroads of the kind I described on all kinds of property rights. There is the whole are of planning controls, which seem to be another kind of inroad. Yet in this case, we seem to be faced with a very real difficulty — and it is a difficulty we will have to examine extremely carefully in relation to the second Bill because I do not think the second Bill gets over the difficulty — that the landlord is entitled to a fair market rent for the premises and any inroad on that, it appears, would be liable to be challenged as unconsititutional. We will deal with that when we look at the manner in which a fair rent is to be ascertained by the District Court under the Bill.
It would be useful for Senators to take this opportunity to place on the records of this House a view on the protection of property rights under the Constitution. When I say "a view" I mean a policy approach. What kind of policy do we want to see on this? I speak as a member of the Labour Party who have a very clear policy in wishing to see proper social control and planning in relation to property rights in land. We wish, for example, to control the price of and profits made out of re-zoning of development land. We are scandalised by what has happened in and around the city of Dublin and other cities of what can only be described in modern Irish circumstances as decadent profits being made by exploiting property rights without any control. At the same time, for the reasons I have given, it is very difficult to know how to propose an amendment of the Constitution to deal with this. It is difficult to know what wording could be put forward because it seems as though it is not the words in the Articles — the words in either Article 43 or Article 40.3 (2) — it is the approach, what one reads into those words, how one regards a property right.
In this instance it is the individuals who compose the Supreme Court who have a view of that which has become an interpretation of our property rights and which is going to continue to pose very real problems for us. It is a matter of the gravest concern and one on which we should ponder. I hope that the Minister, in replying to this debate, will deal with these issues which arise on this Bill. He introduced the Bill with an opening statement of half a page. That is not good enough. We need to ponder on these matters. We may not have easy answers. We may be opening up questions that will worry people but it is our responsibility to look at these things. I hope the Minister will give a much fuller response when he replies.
I propose to reserve what I have to say on the main matter until the next Bill. Senator Robinson's contribution has prompted me to reflect on some of the basic issues she raised and on which there will be a more elaborate discussion in the next Bill. What is wrong it seems to me — I speak purely as a layman — is that the considerations of private property in the Constitution are paramount and mandatory. There is no corresponding concern in the Constitution for those who are at the receiving end of property. Thus, proprietors are taken care in, as has been pointed out, two Articles. They receive a double protection and the mandatory verb "shall" occurs only in connection with private property. There is no such concern or guarantee by the State for those who are the victims of private property. Senator Robinson suggested that it would be extremely difficult to amend Article 40(2) because it contains such fundamental guarantees, for personel liberty anyway. A review of the Constitution day in day out becomes more imperative. There is no topic discussed in this House that does not raise how imperative the reviewing of the Constitution is and it is shortsightness to the point of myopia on the part of the Government to close their eyes to that. Is it not possible in a review of the Constitution to give the family corresponding rights, or equal rights, to those guaranteed to those who are in possession of private property? There is, of course, an Article on the family. It does guarantee the family certain things, but it does not guarantee the family shelter or a home, which is an extraordinary omission. There is more than enough for any reforming or crusading zeal which the incoming Government may have to consider in this matter. I will confine myself to asking the Minister one point: in introducing the main Bill in the Dáil he expressed the confidence that it would prove constitutional and can he give the same assurance or how does he feel about this Bill?
I should like to thank Senators O'Leary and Robinson for the welcome they extended to me on this my first occasion in the Seanad since the change of Government and on my appointment as Minister for the Environment. I should like to refer to Senator Robinson's contribution. I was glad she started by saying that this was far too serious an issue for party politics because so many of the tenants involved are old and have suffered concern, anxiety and distress. There are many landlords suffering this distress. It is for that reason that I hope the main Bill we have before us will receive the welcome of the Seanad and will be passed as soon as possible to relieve the worry of the tenants that has existed since June 1981 from the original Supreme Court decision on the Blake-Madigan case.
Senator Robinson raised the question of how long the temporary Bill can continue. It was suggested in the other House that when the temporary Bill passed that there was no great urgency about the permanent legislation. I am glad Senator Robinson recognised that this is a false impression. There already exists a challenge in the courts to the existing temporary legislation. There is also a major possibility of this temporary Bill being referred to the Supreme Court. Extensions to the temporary Bill increase the risk that it too will be found to be unconstitutional. Were this to happen the position of tenants would be very serious indeed and the options open to the Government very limited. Accordingly, it is imperative that the main Bill should become law at the earliest possible opportunity.
Senator Robinson referred to the brief speech I made when introducing this temporary provisions Bill. The main issues we have to debate today arise on the second Bill and it is for that reason that I reserve my main contribution to the introduction of that Bill. Senator Robinson also referred to the Blake-Madigan case. The main Bill has been drafted in accordance with both the judgment on that case and also on the referral to the Supreme Court. I do not purport to represent myself as a constitutional lawyer and, consequently, I must take the best legal advice available to me, that of the Attorney General and the legal advisers available to the Government. This Bill has been drafted in accordance with that advice. There can be different points of view and I have no doubt I will hear them from Senators with legal backgrounds and training in the course of the afternoon. I can assure the House that the Bill was drafted on the best legal advice available to the Government.
Senator Robinson made the point that perhaps the Dáil and Seanad should have continued to sit right through the summer to debate the issues which arose as a result of the Supreme Court decision last year. I would remind the Senator that the Bill which the President referred to the Supreme Court, on the advice of the Council of State, appeared in December last year and it was not possible, even while we were in Opposition, to discuss legislation which we did not have before us.
Senator Murphy and Senator Robinson made the point that apart from property rights tenants also have rights and they must be protected in any legislation. The balance which I am trying to achieve in the second Bill is essentially a balance between the conflicting rights, and this is not easy to determine. However, in the final analysis, we must fall back on our obligations under Article 45 of the Constitution — and this goes some way towards meeting the point made by Senator Murphy — to safeguard with special care the economic interests of the weaker sections of the community, and generally to promote the welfare of all the people by securing and protecting as effectively as we may a social order in which justice and charity shall inform all the institutions of the national life. That is the principle which guided me in drafting the main Bill we will be discussing later on.
Senator Murphy also made the point that he intended to reserve his main contribution on this whole area to the main Bill which we will be discussing later, and it is my intention also to reserve the remainder of my comments for the main Bill.