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Seanad Éireann debate -
Wednesday, 21 Nov 1990

Vol. 126 No. 12

Private Business. - The Altamont (Amendment of Deed of Trust) Bill, 1990: Second Stge.

An Leas-Cathaoirleach

I move: "That the Bill be now read a Second Time."

I support the Second reading of this Bill, which is a very specific piece of legislation, entitled the Altamont (Amendment of Deed of Trust) Bill, 1990. Many Senators are probably aware of the personal situation of the Honourble Jeremy Altamont and his family. The Bill before us will deal specifically with this trust and this trust only.

In this country we have no Act enabling us to vary trusts once they have been formed. In the UK in 1957, they introduced the Variations of Trust Act which allows changes in trusts if there are changes in circumstances since those trusts were initially formed. In 1963 Jeremy Altamont, as a relatively young man, entered into and was the signatory to a trust which provided that his son, and only his eldest son, would be the benefactor of the Sligo estate and all the assets therein contained. As is now history, Jeremy Altamont is a happily married man with five daughters and no plans for any further family. He has now tied himself inadvertently into a trust where his assets can only go to a notional eldest son at this stage. This Bill is specifically to deal with such a situation.

Apparently, in law, a man is considered capable of begetting a son as long as he is alive — even at 100 years of age. The legal opinion in the country, and indeed the Bank of Ireland trustees who are the trustees of this particular trust, will still argue that it is in theory possible for Lord Altamont to produce a son even at this stage. In practice, that is not likely to be so as is agreed by both of the Altamonts and as a result he is very anxious that he is allowed to provide for his five daughters while he is still living. He is precluded from doing so by the trust he signed in 1963. As he says himself, it has been his personal agony that inadvertently, as a young man without knowing what the future would bring, he tied himself and his wife and five daughters into this position. It is a question of equal rights. Very few in this day and age, in 1990, in a similar position with assets such as this family, would tie everything down to a sole heir, a sole son. Times have changed in the 30 odd years that have gone by and this family's circumstances are quite different to what they might have been considered to be in 1963 when the trust was signed.

If a provision had been included in the original trust document to allow change if circumstances changed, this Private Members Bill before the House would not have been necessary. No provision was entered into at the time. I suppose one could question the legal advice available, but one must remember the legal climate in the early sixties pertaining to people who had property in Ireland. As a young man, the signatory treated the trust document much as any of us would treat the signing of a will. He assumed it would be possible to change it given changing circumstances over the years. He was unaware that the legislation pertaining to trusts in this country would preclude him from changing any aspect of the trust if his circumstances changed. Hence, with senior counsel's opinion, and having spoken at length to the trustees of the Bank of Ireland in relation to this trust, this is the course of action he is now taking and which, on face value, we support. I can see absolutely no reason why any parent should be precluded from looking after their daughters in their lifetime because of archaic legislation that has not been updated. I have no difficulty in supporting the principle.

The Bill before us, as I said, pertains only to this family's circumstances and the assets referred to in this trust, but there are many trusts that have run into similar difficulties or difficulties of one kind or another. The question that is being begged by the procedure we have had to enter into here today is that we look at our trust legislation and have on our Statute Book a Variations of Trust Act so that without going through this rather cumbersome process of a Private Members' Bill other families who find themselves in changed circumstances, but tied into a system that no longer suits the family needs, may, given certain conditions laid down under a Variations of Trust Act, change without resorting to a Private Members' Bill.

Interestingly, legal opinion in this area needs looking at again. There is no doubt that legal people in this country are operating to what are on our Statute Books. Changes must start in the Houses of the Oireachtas. Even if, in a situation such as we have now, a vasectomy was contemplated to prove conclusively to the legal people that no further children were possible and/or wanted, as a result, they would not accept that. The legal opinion says, no, that is not sufficient because there is a 50 per cent to 60 per cent chance of it being reversible even before the latest information on a totally reversible procedure. Nothing has been spared in researching possible ways of changing this trust before the family, through their legal advisers, have had to resort to a Private Members' Bill. As such we support the Bill. I feel very strongly that Jeremy Altamont should be in a position to look after his five daughters and their familes and to look after his wife during his lifetime if he should so wish.

There is another anomaly. This trust was signed in 1963. We produced a Succession Act in 1967 which, to my knowledge, was retrospective only for three years. There is a year between when the trust was signed and the operation of the Succession Act would effectively come into operation. If, indeed, Jeremy Altamont had had a son, the trust would have had the effect of overriding any of the principles in the Succession Act about which we all feel very strongly. His wife and five daughters would have been cut out of any will, notwithstanding the issues in the Succession Act to look after his wife/spouse and all the family. If they had a male child in this family, because of the date of the signature of the trust, the Succession Act would not apply to it and the five daughters and the wife would have been excluded from all inheritance.

Basically the family want to get the family assets to treat them under the normal succession procedures for his wife and five daughters. The Bank of Ireland trustees, I understand, will be opposing this legislation. They have no choice but to oppose it. They are there to act and to protect the interests of a notional son not yet born, and never likely to be born. One can understand the role they have to play given the situation they find themselves in. They will oppose the Bill on principle. That is understandable. I support the Bill very strongly on principle also, so that the family can put their assets into a position of treating them normally for the benefit of the wife and family.

I want to say a few words on this. As Senator Doyle said, Lord Altamont entered into a family settlement in 1963, which was customary at the time, and made provision that his eldest son would succeed to the Sligo estate of which Westport House forms a part. The effect of the settlement is that now, because he does not have a son, but has a wife and five daughters, he is precluded from making any provision for them during his lifetime. That is what this Bill hopes to do. He can, of course, make a will and make necessary provisions for his family, but this will only apply after his death whereas he considers that he should be allowed to make provisions during his lifetime and that his wife and daughters should not be denied benefit because of some archaic custom. I tend to agree with this. In the event of his death he can deal with the assets by will but he wants to do it now while he is alive. That seems a reasonable enough thing to want to do.

The attitude in 1963 was completely different from what the attitude is now and having got advice he discovered the only way he could change the terms of the family settlement of 1963 was through the introduction of this Private Bill which is being put forward in the Seanad today. This is to give him access to the estate and the assets so that he can make provision for his family. It does not seem reasonable that they should be disentitled simply because they are ladies. I agree with this. As Senator Doyle said, the Bank of Ireland trustees will object. They have no option but to object being the trustees of the particular settlement. Their objection will not be a very strong one. They may, in fact, withdraw it in the end. The trustees, in their original objections, did state that Lord Altamont could still father a son and they even mentioned that he could donate sperm for future use in the sperm bank. This is something he could do, but I do not think he intends to do it. He actually agreed to have a vasectomy and become sterilised if this would allow him to settle these assets on his wife and children.

The Bill is necessary because we do not have any legislation which allows for the breaking of trusts. In the British Parliament in 1958 they introduced a Bill which allowed them to do this but we do not have such legislation here so we have to go through this procedure. That is not something that should cause us any great agony. If we agree that the man owns the estate, then he should be allowed to settle it on his wife and children during his lifetime, and perhaps break this settlement. There have been some objections put to me that it would be better if the land was given over to the community and settled because there may be some dispute as to how he got the land in the first place, but that is going back into the far reaches of time.

(Interruptions.)

Maybe this time we will just let him settle it on his family and leave it at that.

On a point of order, there are a number of queries which arise. Could you just explain to me the process and the procedure under which you are working at at the moment? Who will deal with questions arising from the legislation?

When Second Stage is concluded and agreed, then the Leas-Chathaoirleach will be invited by me to move a motion of expediency which will allow a joint committee to be set up to examine all the matters that you are considering at the moment.

I would like to make a few brief remarks about this. I do so with a certain delicacy because this is a family matter. I do not think it is appropriate to refer in any detail to the possible hypothetical sex life of the noble marquis. However, I am concerned about a couple of things of a technical nature. Unusually, we did not get copies of this Bill. I do not want to criticise the staff of the House——

I was not aware of that. This is quite a technical Bill. Without wishing to oppose it directly, I would like to express a little bit of concern about it because it seems to me that what we are dealing with is a situation where there should be reform of the trustee laws rather than an attempt to introduce a special Bill for one private person. I do not think that legislation ought to be contemplated simply for the individual; it should be for the entire people of the country. I recognise that this is a particular case and I assume it is a particular case not because the noble marquis is a member of what is now an extinct peerage of Ireland, but because he holds assets, including some of the very important cultural inheritance of this country, notably Westport House and the parklands surrounding it and its contents which we are all grateful to the Browne family for maintaining and for opening to the public. Here there is another thing that ought to be attacked, that is the way in which these houses are taxed to their destruction. If we want to recognise the contribution that these places make to the life of the country, instead of introducing Bills to deal with individual cases, we ought to be making proper provision. I do not think that this is an attempt to evade the tax provisions; it is an attempt to break a trust. As I understand from reading the newspapers, the intention is to break a trust so that Lord Altamont can use funds which are not currently at his disposal because of the nature of the trust in order to invest in the estate and to protect the estate as part of the inheritance of his daughters. This, in my opinion, would not be necessary if there was a proper understanding of the role of these houses in the cultural life of our country and of the potential as a major tourist draw. I hope that the Government will address this particular problem.

The next point I would like to make is that the trustees are opposing this. There has, I understand, already been a court case in which the Bank of Ireland, acting as trustees of the estate, opposed it. I am not in possession of any information about the character of the person who wishes to break the trust, and I would not in any sense wish to cast aspersions on his character, but we have had no explanation in any detail as to what precisely it is intended to do with moneys which could be obtained by the breaking of the trust other than to say it is to make provision for his daughters and that they should be treated equally and not discriminated against on the basis of gender, with all of which we agree. Do we not have a further responsibility before we introduce and pass legislstion which could be instrumental in breaking the trust to ensure that there will be a wise employment of these funds subsquently? I make this point without wishing to suggest in the slightest way that there is any doubt about the character, the business acumen, the parental responsibility of Lord Altamont, I have no doubt that he is exemplary in these matters, but we simply have not been given any information on it. I think it would be rather unwise to pass a Bill of this nature unless we have some information and are satisfied that it is in the best interests of the children.

I say this because — and this will be my final point — reading the newspaper reports suggested to me, not from any defective character or anything else, that there was a division of opinion among the trustees as to whether the kinds of investment of capital in the Westport estate that were apparently contemplated by the Marquis of Sligo, or the Earl of Altamont — I forget what his correct title is — were in fact the most productive employment of the money. It may well be, as Senator Doyle said, that the bank has a technical obligation to oppose. It seemed to me, however, that there might be a little bit more than that. It may be a question of business judgment, although in this week of all weeks for the Bank of Ireland to express concern about the business judgment of an individual does take a kind of Westport biscuit.

Nobody, in principle, could do other than have sympathy with the family. I do not even want to mention the name of the family although Senator Doyle, of necessity, mentioned them. There are issues that, in a proper and humane ways and with proper respect for the privacy of the family, deserve to be discussed. If this problem exists, should we not deal with it by proper legislation? Will there be a succession of unfortunate families who find themselves in this rather peculiar position having to go through the extraordinary procedure of introducing a private Bill? Do we not need proper legislation to deal with it?

I would also have to inquire — and I want to do it with some care — why precisely a trust was set up. Was it to do with understandable concern for the welfare of children or was it to do with the minimisation, perhaps, of obligation to the Revenue Commissioners at some future date? Those sort of things arise.

I must say too, that in the light of what I know to be the legislation in this country to deal with the equality of the sexes and also the status of children I would like an explanation from somebody at some stage. I appreciate the trust predates the legislation but at least I would like to be assured that from now on trusts which would appear to discriminate between children on the basis of their sex are no longer legal or possible. Can somebody, presumably from the Government side, give me a categorical assurance that it is no longer legally possible to set up a trust which effectively discriminates between the children of the person setting up the trust on the basis of their sex? Is that still a legal possibility? Is it still something that can be done in spite of equality legislation, in spite of the Succession Act and in spite of the Status of Children Act which is in force for some two or three years? These are the sort of issues that arise out of the difficulties that arose for one specific family.

I would like also to put on record my own view. I have absolutely no problems at all about a trust which involves the transfer of the ownership of property. I have considerable reservations about page three of the Bill regarding a trust which confers ownership of something as intangible as fishing rights; I do not accept there is a right to private ownership of such a fundamental natural resource in this country. Therefore, there is a fundamental distinction between the ownership of property and land and other things which, in spite of the image that I sometimes have, I regard as the property of individuals to be disposed of by themselves within the taxation code of the country. Fisheries are a different thing and it seems to me there is a slight anomaly in this House introducing legislation to secure for family the future ownership of what is essentially a national resource which in many cases will exist irrespective of what contribution that particular family make to the well being of that resource and which will probably exist because of the work of many other people, including the State, to sustain that and protect that resource. That perhaps is by way of a smaller point.

I would like to know essentially about this legislation why is it that this issue and this family have at their disposal and are given to their disposal the right to have legislation introduced to remedy a quite wrong, unfair, improper although admittedly legal, anomaly when there are perhaps thousands of people around the country who are the victims of anomalies of the law in all sorts of other areas? They have to wait in a long queue perhaps for five, ten, 15 or 20 years to have their positions sorted out. A classic example would be children born to parents who were not married who, until the Status of Children Act, had virtually no legal rights and had to wait until that legislative reform took its place in the queue.

People are entitled to be assured that there are specific reasons of considerable and fundamental national importance which justify this legislation being introduced ahead of a queue of reforming legislation in all sorts of areas to do with taxation, welfare and all sorts of areas where people lose out on what they thought to be their own rights because of anomalies, contradictions, internal conflicts within legislation and which have to wait for their position in the queue.

I have no problems about the principle of this but I know the delays in introducing reforming legislation in this country, I know how slow it is, I know how many people have to wait and see their lives go by while waiting for reforming legislation that would have changed their own circumstances. There are all sorts of areas, family breakdown, welfare anomalies. There are long lists of areas where families and people have to wait because of the logistics and the physical impossibility of moving up in the queue to get the legislation dealt with.

What is so fundamental about this family's circumstances that actually enables them, has facilitated them or has provided them with the right to move through that queue to introduce a private Bill? Is there something out there that people are entitled to know about which could enable other people to do the same thing, to have a private Bill introduced? Is it to do with access to good legal advice, to resources to finance this or what? The discomfort and inconvenience of the family is something that all of us would sympathise with and be at one with in any attempt to remedy it. The choices that were made somewhere along the way that enabled this anomaly to jump the queue of perhaps a thousand anomalous situations in law, many of them affecting large numbers of people, is a question to which we should get an answer. At the end of it all, why this legislation, why this anomaly, why this family before all the others?

I, too, have certain questions which are causing me some difficulty. When I read this legislation and saw it on the Order Paper all that came to mind was the arrangement for a divorce in Victorian England when people with money were able to operate through private legislation through the Houses of Parliament in order to get a dissolution of a marriage.

There is something about this arrangement here which makes me very uneasy. It makes me uneasy that it seems certain people, a certain person or a certain family apparently have been able to initiate a Private Members' Bill in the House, I want to know why this case above all others is the one that we should be dealing with? I understand — I seek your guidance on this — that an objection from any Members of the House would halt the Bill at this stage. I would like a ruling on that because I certainly do not want to cause hardship for any family of any class or in any place. At the same time, you will understand that there are problems here for us. Legislation itself is a most interesting vignette of a discriminatory insight into a discriminatory family arrangement which I would have thought was something of another age.

I find it impossible to believe that such an arrangement, discriminatory by its nature because it does not even refer to names, discriminatory purely on the basis of sex, does not fall retrospectively on the basis of legislation particularly in the mid-seventies that has come into being in the meantime. I understand indeed that this is not the case. I find that to be a flaw in the legislation that was passed at that time. It also brings to mind my profound belief that case law is bad law and that individual cases in the end of the day make bad law.

It would be just as easy for us and just as quick for us to put through legislation introducing general principles which would allow such changes to take place without difficulty. I would like to have an answer to that question. Why is it that we cannot introduce legislation which would take up precisely the same amount of time of both Houses, but would at least have the effect of releasing other trusts which have found themselves bound into unacceptable and unworkable arrangements? I would like to know the position on that.

On the question of the first undivided moiety, which is referred to, I had occasion about five years ago to take a group of 60 school children from Dublin to west Mayo, that beautiful part just north of the fiord, Killary Harbour, where they spent a very happy weekend in the Delphi Adventure Centre run by a very well known Gaelic footballer from that county. That was a very successful operation except for one aspect — he did not have access to certain waters which are owned by the Delphi Fishery. Those 60 children who were with me could not understand why they could not fish the water — this was before the rod licence issue — and neither could I. I felt it was a relic of an age, of a part of our history that was long past. Today, I am participating in the further exclusion of those young people who accompanied me on that weekend and others from this also. I know that is by the way but, nevertheless, we have hand and part in it.

What will happen if the Bill is not enacted or passed through this House? My understanding is that, on the death of a person making the trust, the trust would revert to the estate of that person and would then be divided properly among the members of the family. That seems much more equitable than many of the arrangements that the person who thought up this selection of division of property might come up with in the future. I do not know the person or the family involved, but I know that the legislation protects all the people whom this legislation seeks to protect, the only difference being that the person who wishes to have the trust changed now wants to have access to the money. The decision we take today might allow the dismantling of this trust, might allow the money to be badly invested in some project which would fritter it away and leave nothing for the proposed beneficiaries. In that case we would be doing a bad day's work. I do not have the knowledge Senator Norris has regarding Mr. Altamont who has added the title to the family surname by deed poll. If Mr. Altamont decides to reinvest the money, it might be to the detriment of his family at the end of the day. We should also be aware of that. I would also like to know why the trustees of the Bank of Ireland feel they have to oppose it. We have been told they are opposing it but their opposition has not been outlined. Are they afraid of where the money might go? Are they afraid for the long term effects on the family? What is their fear? We are entitled to know. We are not experts in the area of trust law or in any aspect of it and, therefore, we would like to know where this might lead us.

If the Government support this legislation, we are entitled to hear why a Bill has not been introduced to allow the dismantling of trusts. If the Government support this Bill, why can we not take out the names and make it a general Bill? If, through a process of amendment on Committee Stage, I delete all the names, and references to aspects of wealth, money or property, could I then change it to a general Bill which might have a wider application to other people? Is that possible? Can we widen the Bill to give access to other people who do not have access at present to the operation of this House?

I do not object to something that will improve the position within a family, but, at the end of a day, exceptional cases make bad law. If there are underlying problems, let us address them and decide what the next step might be. Are we now opening the floodgates? Are we looking forward to ten more of these Bills in the next session? Who will stop another ten Bills being introduced in the next session? Whose decision was it to allow the Bill to come this far? Where does it begin? Who made the decision to tackle it? Were other people seeking similar arrangements from the House? Did we decide on this one as opposed to others? I do not know. These are questions which will be asked by other people. In the same way that one should not tip the cap to the upper class, neither should one discriminate against them. I want to be very careful with my use of words here. I would be sensitive to the challenge, the decision or the charge that, as a House, we are reacting to the needs of the landed gentry. I am not saying that in any demeaning way to the person referred to in the Bill; I do not know the person and I want to make it clear that I am not personalising it except in as much as there is a name in the legislation. Why is it that name as opposed to others in the legislation? Members will be asked about similar problems in other areas. I know families who are inarticulate, who do not have the legal resources to write up this legislation. As I have been reminded, in the last three weeks for instance, we have had two different families outside the gates of the House, one a man from Cork on hunger strike seeking to get back the only property he or his family ever had, and there is another woman outside the gate today protesting about land that has been in her family for five centuries — including seven generations of farriers and blacksmiths — and now by some convolution of the law, finds she does not have access to her own property. Can these people have access to this House? Is this access restricted to people who are titled? Is it restricted to people who are important? Is it restricted to people who have money? Is it restricted to people who can put the resources together in order to get the legal brains to draft legislation which then comes to us? How does it come to us?

We discussed this morning the need for the initiation of legislation. We have talked in both Houses and in all our committees of the need to develop progressive social legislation. This social legislation which is looking after the needs of one family. How can we justify giving time to this when we do not have the time to deal with other aspects of social legislation? For the past, ten years I have been asking why we are the only country in Europe which does not have an education Act, for instance. The Minister for Education has been saying for three years that she looks forward to the introduction on an education Bill. We would be far better off here today discussing an education Bill. I understand that is not relevant to a Second Stage speech but I merely using it as an example. The people who elected me could say that: if I have the time to look after the hereditary arrangements for Lord Altamont while their schools have over-crowded classrooms, and are under funded, would I not be better dealing with aspects like that? I could not argue with that. I need to know the answers to those questions. I think we are establishing a very dangerous precedent.

I want to know what to do when my telephone rings, or more likely when the telephones of Members on the Government side ring and influential people say "I believe you passed legislation last week to allow Lord Altamont change his trust fund from his notional son to his very real daughters. Will you now do something for me? Will you allow me make whatever changes are required because I am tied into some deed or some trust fund?" I am worried. This is unprecedented. I do not mind establishing a precedent but this establishes a precedent which is not very attractive. We seem to be responding to the needs of the wealthy and the titled. We seem to be giving our time to the introduction of legislation on issues such as this instead of concentrating on the poor, the services they need and many other matters. We always make judgments on a day-to-day basis on which legislation to debate. I am not saying that in a criticism of the Government and I would not want it to be seen in that way. Neither am I making that objection to the Leas-Chathaoirleach whom, I understand, by role and virtue of office is required to deal with this type of legislation. However, I have serious reservations about what we are doing today. This is a mirror image of what happened in Victorian times when wealthy families could acquire a divorce by bringing a private Bill to the Houses of Parliament, but only the wealthy could do that. This seems to be precisely what is happening here today.

I also have difficulty with the passing on of the fishing rights of the Delphi fishery to anybody. They should be owned by the State and there should be access for the people, a point raised by my colleague, Senator Ryan.

The person who devised such a discriminatory arrangement for his or her potential family in 1963 should have made it clear that whatever future arrangement he proposed to put into place was not anywhere near as discriminatory because if we do nothing, eventually the value of this trust will go into the estate of the person who set up the trust and will be divided fairly among his surviving family. At least that will be fair and acceptable to all. However, leaving the Bill aside, we should not establish a precedent here by dealing with individual items in legislation. I do not like it. It is a fire brigade action dealing with the wrong kind of problem. I have raised quite a number of questions and I look forward to hearing answers to them.

The position at the moment is that we are dealing with the Second Stage, as moved by the Leas-Chathaoirleach. Senator O'Toole asked if I would make a ruling on the position in the event of an objection being raised to the Second Stage reading or to anything contained in the Bill.

The position is that any Member can object but the manner by which Second Stage is agreed is a matter for the House in the normal way. Nevertheless, some fundamental matters pertaining to this legislation have been raised by Members. There are serious questions of clarification and interpretation and the impact of this legislation in the context of legislation passed over the years. Many issues have been referred to in a considerable way by the contributors. I have the authority at this stage to defer any further discussion on Second Stage and I request the Leas-Cathaoirleach to seek full clarification and briefing by way of an explanatory memorandum which will allow, on the resumption of Second Stage, for a more informed understanding of the background to this Bill and all the matters that are causing concern and reservation for the Members.

Is there agreement that we adjourn the debate? Agreed.

Debate adjourned.
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