Seanad Éireann debate -
Tuesday, 6 Jul 2004

Vol. 177 No. 10

Residential Tenancies Bill 2003: Committee Stage (Resumed).

Question again proposed: "That section 39 stand part of the Bill."

Minister of State at the Department of the Environment, Heritage and Local Government (Mr. N. Ahern)

I tried to explain earlier how this came about. Originally, the section provided that on the death of all the tenants of a Part 4 tenancy, the Part 4 tenancy would no longer exist. When this was discussed on Committee Stage in the Dáil, considerable concern was expressed by Deputies about the position of dependent family members when a tenant dies. The advice I would offer to all people in tenancies, which will be strongly recommended by the private residential tenancies board, is that all prospective tenants should enter joint tenancies at the outset or when a person moves in with another. The situation should be regularised and placed on a legal footing.

I was asked in the other House, after a long and heated discussion, to amend the provision to protect other family occupants where the sole family member who is a tenant might die. It was stressed by Deputies on all sides that the amendment was only being sought in the case of a genuine family relationship, married or unmarried. At the end of the debate I gave an undertaking that I would try to do that and we took the matter up with the Attorney General. On Report Stage we came back with an amendment that was drafted by the Attorney General and made the precise change I was asked to make. His office considered that the change would not pose constitutional difficulties for landlords' property rights as the Constitution also protects the position of the family. Here we had a case of competing constitutional rights but the Attorney General recommended this as being in order and that it complied with the request.

The amendment that was introduced enabled spouses, unmarried partners, adult children and parents who were residing with the tenant to elect to become tenants and to continue the Part 4 tenancy where the death of a tenant occurs. It was specifically targeted at the groups I was asked to target, married and unmarried couples. It does not cover everyone but it is wrong for any Member to feel that any group is specifically excluded. It does not cover several other categories of multiple occupant dwellings — friends, cousins, siblings, people in same sex relationships, work colleagues or anyone else — it was specifically targeted at dependent spouses in family relationships.

That is where the debate arose and where I tried to strengthen the provision on the request of Members on Committee Stage in the Dáil. It is wrong, however, to think that any specific group was excluded. Even when I came back with the amendment, one of the Members who was very vocal on Committee Stage wanted to know why siblings were not included but I had not been asked to do that.

I am not an expert in constitutional law but the Attorney General considered that, because the Constitution recognises the family, in this case it would be in order. Everyone can overcome this concern on the first day of the tenancy and the residential tenancies board will strongly recommend in future that in cases of joint tenancies, people register themselves as joint tenants so they will have complete protection if one of them dies.

The broader extension of the provision, to include partners other than those living together as husband and wife, is not possible. The expression is too vague and capable of a number of interpretations. It would not be appropriate to formulate a statutory provision using such a vague expression. It would be likely to include any person who had been living in the accommodation. Any extension of the provision to include same sex partners in sexual relationships would require specific reference to that category of occupant.

I brought forward a measure, having consulted the Attorney General at the request of Members across all parties, and no group is specifically excluded. More than one group is included but there are other groups that are not included. The amended section was composed entirely by the Attorney General and was framed so it did not impact on the position of leases under the Succession Acts. There was a constitutional concern but I brought forward a measure, as requested, and no one has been specifically excluded and I refute the suggestion they have. It was brought forward to cover certain groups as requested and some groups are included and some are not.

Mr. Norris

I have no desire to antagonise the Minister of State, whom I know is a decent and caring, if somewhat conservative, gentleman. There is, however, an area here that we should examine. The Minister of State says that he has not been asked to look at this area. I am now formally requesting that he does so because it is such a glaring omission.

I have no qualification in law but that has never prevented me from giving my opinion on the subject. I have some slight acquaintance with Constitution. Yes, it pledges to protect the family but it does not give a definition of "family". It might be taken that "family" corresponds to what was meant in 1937 but that would fly in the face of the consistent practice since 1937 of the organs of the State, especially the courts and the Supreme Court in particular, in interpreting the Constitution in ways which would most certainly have surprised the original framers of that document. The belief is that it is an organic document which did not stop in 1937 but continued to develop and that the Constitution contained certain un-enumerated rights specified subsequently. I believe I am correct in assuming that in this situation where we do not have the narrow definition of the family to which the Minister of State seems to wish to cling, it is quite consistent with the Constitution to protect vulnerable citizens even in terms where the rights of landlords come in. That is governed by the superior clause relating and referring to the "common good", the public good.

I again refer to the former Minister for Justice, Máire Geoghegan-Quinn. What public good is served by discriminating in this manner against people simply on the basis of their sexual orientation, a matter which is generally outlawed in the European Community and will be specifically outlawed by the equality directive which this Government will be required to pass into operation in 2006?

The Minister of State in his reply raised the question of arrangements for siblings and other arrangements. I remind him that very case was made from the Front Bench of his own party in this House by none other than Dr. Mansergh, who followed it up with a very interesting article in The Irish Times. I thought the article was a little too narrowly focused but he made the point about the position in a caring society of two old dears of either sex who may or may not be related and who may have contributed to the household over many years. What is so bizarre about that arrangement? I am not opposed to it.

The Minister uses phrases such as "genuine family relationship". I do not wish to tie down the Minister of State. I am quite incautious in my own language and I will not make a meal of it. I was in a relationship for 27 years which is longer than quite a lot of marriages I know of. Did I have no rights at all? Did the person I loved have no rights whatever? Should I just contribute to a tenancy or a pension and leave that person absolutely stranded? As a decent Christian man, what would the Minister of State say to somebody in that situation when he or she is grieving? If I translate his reply into the immediate human circumstances — I am sure he would never do this — it would be to say to the person: "I told you so. You should have looked after that in the beginning. You should have gone to a solicitor." His reply would recommend that in the first flush of romance when two people have moved in together they should go to a solicitor and sign the documents. The Minister of State knows well that human life is not like that. This reply is not an appropriate answer to give to somebody who has lost a spouse and is then thrown out on the side of the road. We cannot say to people that we debated the matter in the Seanad and decided they should go to a solicitor. This is not an adequate response to a problem we know exists.

A similar situation was addressed in this House by the former Minister for Justice, Máire Geoghegan-Quinn. She laid down the principle that discrimination should not be contemplated in legislation unless there were clear, cogent reasons therefor. The Minister of State has not put forward any that I can see. I ask him to examine this question seriously and to examine the question of supporting a reasonable and measured item of legislation. If he is not prepared to do that in this Bill, I suggest a portmanteau arrangement. I have been working on a Private Members’ Bill. A difficulty exists because of the capacity of the Seanad to infringe on the rights of the Exchequer to spend money, for instance. It is up to the Minister of State. There are tragic human situations which are made unnecessarily worse by the operation of this Bill. I ask the Minister of State to consider the situation so eloquently raised by Senator McCarthy.

Mr. McCarthy

A report on the judgment of the European Court of Human Rights states:

The Court reiterates its findings stated in various previous judgments that "differences based on sexual orientation require particularly serious reasons by way of justification".

In the Karner case, the justification for the provision made by the Austrian Government was that the aim was to protect the traditional family unit. The government could not convince the court that excluding same-sex partners from the right to succeed in a tenancy would help to achieve this objective. The judgment states:

Accordingly, the Court finds that the Government have not offered convincing and weighty reasons justifying the narrow interpretation of Section 14(3) of the Rent Act that prevent a surviving partner of a couple of the same sex from relying on that provision.

The judgment completely demolishes the argument put forward by conservative forces on this issue down through the years.

I do not believe the Minister of State's present position will change, despite the debate and arguments put forward in favour of our case. How does his position on section 39 reconcile with the EU anti-discrimination directive to be introduced in 2006? This is an important question if we are serious about the implementation of that directive and it has been given a rebuff in this House today. The decision in the early 1990s to decriminalise homosexuality was taken by a Fianna Fáil Minister, Máire Geoghegan-Quinn. It was a progressive and brave step for any politician to take at that stage, requiring amazing courage and fortitude on her part. Ten years later, it is a pity that section 39 of this Bill is so glaringly stark in respect of its exclusion of same-sex couples to succession of tenancy rights. The two do not add up.

I appeal to the Minister of State's better nature to consider the implications of this section in respect of the implementation of the EU anti-discrimination directive. I ask him to reconcile what is happening today with what his colleagues in Government bravely agreed to ten years ago, the decriminalisation of homosexuality and the extension of the debate to include equality and human rights.

Mr. Bannon

I agree with my colleagues. This section is discriminatory and the Minister of State should reconsider it. It is evident that this part of the section is in breach of the judgment of the European Court of Human Rights. It is also contrary to the Constitution which cherishes all citizens equally. The Minister of State should agree to an amendment to this section, otherwise there will be serious problems in the future.

Mr. N. Ahern

I have outlined the history of this legislation and the debate in the other House. It is wrong for anyone to interpret it in the manner outlined. It was not designed to exclude any particular group. This is a good Bill which is moving forward the situation of tenants' rights. I am not suggesting it will last forever. I am sure different sections of the Bill will be improved as time passes. There may well be further development of this section. I am aware of a recent Law Reform Commission report which could well affect and influence the direction and wording of the Bill in the future.

The provision in this section is confined to persons who have been residing in the dwelling with the deceased tenant. These are the only people whose accommodation is directly affected by the death of the tenant. The primary concern in this section is the accommodation of those people. There could well be situations in which other people who are not residing in the dwelling might have rights under the succession Acts. It is a very fine point of argument. The premise of the Bill is to afford rights to both sides and, for the first time, afford rights to tenants. If rights are given to one side, they are taken from the other side. This provision does not remove a right from same-sex couples to inherit a tenancy. The section, as amended, gives the specified people the right to become a tenant of a Part 4 tenancy in circumstances where there is no living tenant.

This is the only instance in the Bill where a landlord of a house or apartment has no say in granting a tenancy to a particular person in circumstances in which there is no surviving tenant.

Discussing an earlier amendment on a similar matter, we noted the importance of achieving balance from a landlord's point of view and discussed whether a landlord should have a say with regard to new sub-tenants in the event that a tenant goes away for a period, for example, to London. The landlord has this right in all cases, with the exception of this specific exclusion. It was possible to insert this denial, as it were, of a landlord's right to choose or give consent regarding a person who would become a tenant because of the constitutional protection afforded to the family. For good or bad, this specific provision denies the landlord the usual right to decide who can assume a Part 4 tenancy. We are doing this because of the constitutional protection of the family.

I have listened to Senators' arguments and it is possible that it will be necessary to change the provision as a result of future developments, other legislation or the report of the Law Reform Commission. It is not true that it has been included to allow for what the Senators may regard as my personal baggage. While we all have personal views, this measure was not influenced by mine but resulted from strong demands by Members of the other House for protection in a specific case. We have tried to offer such protection and its inclusion was only possible because of other constitutional protections. The Attorney General concluded that it could be included because of the constitutional protection of the family and, while we did not specifically seek to add other groups, his message was that difficulties would arise if we were to do so because it might create an imbalance.

Acting Chairman

Is section 39 agreed?

Mr. Norris

I wish to make a brief comment.

Acting Chairman

I remind Senators that we are under severe time pressure. The arguments on this amendment have been well rehearsed.

Mr. Norris

I welcome the tone of the Minister of State's final contribution and his statement that it may be possible to examine this matter in other legislation. Apart from anything else, we may be forced to do so but I would prefer if it was done with goodwill. We must examine the notion of the family and confront the human aspect of the issue. As legislators, we have been put on notice by the courts in this regard that injustice is being done in human terms to people who have lived together and contributed.

I agree with the Minister of State that the inclusion of others may give rise to difficulties with next of kin, which is abominable. I have seen circumstances in which couples lived together happily for 20, 25 or 30 years during which they were neglected, despised and shunned by their families, who then appear at the deathbed of a spouse to claim the booty and evict the grieving spouse. In the part of the country where my Irish roots are, "eviction" is a dirty word. In this case, eviction takes place at the moment when somebody is most vulnerable.

The Minister of State stated he is not removing a tenancy. I accept that and I am glad he has shown a degree of movement and understanding of our position. While not removing a tenancy, however, he is neglecting an opportunity to do something decent in circumstances of great hardship and suffering, one which has been before the courts and for which the Legislature was rebuked for its inaction. He should note that he has been asked and solicited by the House to examine this matter in a humane manner.

I do not want to contemplate the sexual lives of the people involved in tenancies. It would be too horrendous to imagine that every time one looked at a lease, one would wonder what the tenants get up to at half past ten on a Saturday night and who does what to whom. Such matters are not relevant.

I will conclude on a slightly lighter note. The legislation refers to a person cohabiting with the tenant "as husband and wife". If one tenant puts on a lumber jacket and pair of jeans and the other a crinoline, would they qualify?

Mr. McCarthy

I will not refer to any form of dressing up. I welcome the Minister of State's statement that work may be done in this area in the context of other legislation. In the past ten or 12 years, successive Governments have made considerable improvements in equality legislation. It would be a pity if, in the third millennium, our record in this area began to abate. While I can understand that this matter would give rise to difficulties in terms of passing this legislation, Senators' arguments must be taken into consideration. I encourage the Minister of State to examine the approach of other Departments to this issue. I appreciate his disposition and reply.

Question put and agreed to.

Sections 40 to 75, inclusive, agreed to.

NEW SECTION.

Mr. Bannon

I move amendment No. 19:

In page 55, before section 76, to insert the following new section:

"76.—Either or both parties to an existing or terminated licence to occupy a dwelling may, individually or jointly, as appropriate, refer to the Board a licence agreement relating to a dwelling so that the Board may determine—

(a) whether it is a licence, or

(b) whether it is a device by which the landlord was seeking to deny the tenant or his or her rights under this Act.”.

I thought the Acting Chairman was calling out the litany of the politicians as opposed to the litany of the saints.

Acting Chairman

It was the litany of the sections.

Mr. Bannon

The amendment proposes to insert a new section. I am concerned that the failure of the Bill to address the question of licences will result in landlords increasingly using licences as a means of defeating the accrual of tenants' rights, which would otherwise arise from the operation of tenancy under the legislation. In the same way as the courts can lift a veil on a corporation or company, I am proposing the inclusion of this section to empower the board to lift the veil on a licensing order to determine whether it is being used as a device. This short section would add substance to the Bill and I appeal to the Minister of State to accept it.

Mr. N. Ahern

There is well established case law in the area of licensing versus tenancy arrangements to which the board will be required to have regard when deciding whether to accept a dispute referral. The amendment is unnecessary and Senator Bannon's concerns are met by the Bill and by the relevant case law.

Mr. Bannon

Perhaps the Minister of State might outline where my concerns are met. My amendment proposes a new section which is designed to strengthen the legislation and its provisions are not covered elsewhere in the Bill. Can the Minister point to the sections which incorporate these provisions?

Mr. N. Ahern

The provisions of the proposed new section are covered by the well established case law which has been built up by the courts over the years and to which the private residential tenancies board must have regard. The Law Reform Commission is currently undertaking a review of landlord and tenant law which will have a bearing on this area in the future. Unless any of the exclusions in section 3 apply, any letting which has the characteristics of a tenancy is covered by the provisions of the Bill irrespective of what the landlord may seek to call it. That is the important issue and this protection is provided by the Bill without any need for amendment. Neither the landlord nor the tenant can make the decision as to what constitutes a tenancy. It is an objective fact which is determined by the conditions under which the dwelling is occupied and the relationship between the owner and the occupant. If the occupant has reason to believe the letting is a tenancy, he or she should proceed on that assumption. Each party can take its case to the board for adjudication if a dispute arises.

Mr. Bannon

The Minister of State said earlier that the protection envisaged in my amendment is covered in the Bill but he has not pointed out precisely where it is incorporated and he has diverted into talk of impending legislation and so on.

Mr. N. Ahern

I can repeat myself by reiterating that this protection is afforded by the case law——

Mr. Bannon

In what section of the Bill is it incorporated?

Mr. N. Ahern

——which has been built up in the courts. Any letting will come under the provisions of the Bill, unless any of the section 3 exclusions apply, irrespective of what the landlord may seek to call it. Prior to this legislation, any dispute between a landlord and tenant had to come before the courts, which was a slow, expensive and cumbersome process into which neither party entered gladly. The private residential tenancies board established by this legislation will mediate and adjudicate in a user-friendly manner and one hopes that both landlords and tenants will avail of the opportunity it presents. The objective is that people will not require legal assistance or representation and will be able to make their case in a simple way.

Mr. Bannon

I am still concerned by the failure of the Bill to deal with the issue of licences and the Minister of State has done nothing to clarify that matter. I am disappointed but I will not press the matter.

Amendment, by leave, withdrawn.

Sections 76 to 114, inclusive, agreed to.

Amendment No. 20 not moved.

Sections 115 to 122, inclusive, agreed to.

SECTION 123.

Mr. McCarthy

I move amendment No. 21:

In page 79, lines 47 and 48, to delete subsection (4).

Section 123 deals with the binding nature of determination orders. It is only in exceptional cases that an appeal to the Supreme Court would be appropriate but the Bill should make provision for such cases.

Mr. N. Ahern

The Commission on the Private Rented Residential Sector recommended that appeals of the board's decisions should be to the High Court on point of law only and that the court's decision should be final. Nevertheless, the Bill contains provision for applications to the Circuit Court for enforcement orders where the determination order of the board is not complied with. This allows aspects of the dispute such as an absence of procedural fairness to be considered by that court. This provision makes appeals on points of law beyond the High Court even more unnecessary and there are many examples in similar legislation where such decisions of the High Court are final. It is a standard provision and is particularly so in the case of Labour Court and Employment Appeals Tribunal decisions.

Amendment, by leave, withdrawn.

Section 123 agreed to.

SECTION 124.

Mr. McCarthy

I move amendment No. 22:

In page 81, subsection (4), line 13, to delete "respondent will be unable to pay the costs of the applicant" and substitute "applicant will be unable to pay the costs of the respondent".

The provisions of subsection (4) reverse the entire law of security for costs. The latter is not a mechanism which can be used to oppress a defendant but rather a mechanism whereby a plaintiff must prove that he or she is able to pay costs before being permitted to present a claim. It must never be a mechanism whereby a defendant can be prevented from defending a claim. This is almost unprecedented in legal terms.

Mr. N. Ahern

I believe the argument being made by Senator McCarthy, as represented in his amendment, has already been clarified for his party in the Dáil. I do not accept the amendment and I presume the Senator has received the clarification he required following the Dáil debate. As I explained on Committee Stage in that House, this subsection deals with a party who has not complied with a determination order and who has claimed, at a Circuit Court hearing of an application by the board or by the other party for an enforcement order, that there was an absence of procedural fairness, that material considerations were not taken into account by the board, that manifestly erroneous decisions on legal issues were made or that the determination was manifestly wrong. The amendment would require the board or other applicant for the enforcement order to offer security for the costs of the non-compliant party should he or she fail to establish legal grounds for the non-compliance. It is not normal to award costs to the party who fails to establish his or her case or to require security from the other party for the costs of the person who may not be in a position to establish a case. I do not know whether that assists the Senator. However, the issue was discussed in the other House and I thought we had come to an understanding that the Labour Party had interpreted the provision incorrectly.

Acting Chairman

As it is now 1.30 p.m., I must put the following question in accordance with an order of the House: "That amendment No. 22 is negatived, that sections 124 to 202, inclusive, the Schedule and the Title are hereby agreed to in Committee and that the Bill is reported to the House without amendment."

Question put.

The Committee divided: Tá, 27; Níl, 12.

Tá

• Bohan, Eddie.
• Brady, Cyprian.
• Brennan, Michael.
• Callanan, Peter.
• Cox, Margaret.
• Daly, Brendan.
• Dardis, John.
• Dooley, Timmy.
• Fitzgerald, Liam.
• Glynn, Camillus.
• Kenneally, Brendan.
• Kett, Tony.
• Kitt, Michael P.
• Leyden, Terry.
• Lydon, Donal J.
• Minihan, John.
• Mooney, Paschal C.
• Morrissey, Tom.
• Moylan, Pat.
• O’Brien, Francis.
• Ó Murchú, Labhrás.
• O’Rourke, Mary.
• Ormonde, Ann.
• Phelan, Kieran.
• Scanlon, Eamon.
• White, Mary M.
• Wilson, Diarmuid.

Níl

• Bannon, James.
• Bradford, Paul.
• Browne, Fergal.
• Burke, Ulick.
• Finucane, Michael.
• Hayes, Brian.
• McCarthy, Michael.
• McHugh, Joe.
• Norris, David.
• O’Meara, Kathleen.
• O’Toole, Joe.
• Phelan, John.

Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Bannon and U. Burke.

Question declared carried.

Report Stage ordered for Thursday, 8 July 2004.

Sitting suspended at 1.45 p.m. and resumed at 2 p.m.