Special Committee Housing (Private Rented Dwellings) (Amendment) (No. 2) Bill, 1983 debate -
Wednesday, 14 Dec 1983

SECTION 2.

Question proposed: "That section 2 stand part of the Bill."

Mr. Quinn

The position of the Government and the reason why we agreed to the Second Stage is that while we supported the principle of and the aspiration towards ensuring that all tenants affected by the consequences of the Supreme Court decision that removes the protection that they previously had should ideally be catered for by the rents tribunal, our understanding, and the advice given to us by the Attorney General is that that you cannot retrospectively legislate for those people who sought out their rights under existing statute law. In effect while all of us would like to achieve what is the intention of this Bill, that those cases that were filed before 2 July 1983 should automatically be transferred from the District Courts where they were applied to for hearing to the rents tribunal, in law we cannot do that. If we were to pass this Bill in its present form the consequences could, we believe, be very serious. First of all, it is our considered view that it is unconstitutional for a whole raft of legal and constitutional arguments which I can quote. As a consequence, under one of the clauses of the Constitution — I think it is Article 13 or 14 — the Oireachtas cannot pass legislation which it knows or believes to be unconstitutional. There seems to be a substantial body of legal opinion that would suggest that this retrospective compulsory transfer of a case from one judicial forum to another, and in this case not necessarily another because the rents tribunal is not a judicial forum in that sense, would be deemed to be unconstitutional.

Secondly, this whole area of legislation is fraught with constitutional challenge. Mr. Madigan, who initiated the original claim or action against the landlord and tenant legislation that precipitated this legislation, has indicated that he proposes to challenge this Rents Tribunal Bill in its own right — the original one the 1983 Act that was put through by agreement and with the co-operation of the Fianna Fáil Party in July. If that is the case then what we may possibly do tonight will undermine the credibility and the trust of the existing rents tribunal system. The main point that I want to make at this stage is that the best legal advice — if the members wish I can go into the Attorney General's comments on it — is that it is unconstitutional. If we knowingly proceed with something with the advice that we have we then must anticipate that we will precipitate an action against this particular piece of legislation, which in turn must begin to undermine the credibility of the rents review in itself and for the rents tribunal to work properly there has to be a degree of trust on both sides, otherwise one side or the other will start too actively.

Mr. O'Malley

In reply to that, the only constitutional provision of non-retroactivity in law is clearly expressed to relate only to criminal law and this, of course, is civil law. The Constitution is silent on this point and it is clear, therefore, if there is no prohibition on potential retroactivity in civil law that this provision is all right.

Mr. Lenihan

I would like to support Deputy O'Malley because fundamentally this whole retroactive aspect is always related to criminal matters and rightly so, but there has been a whole area involved such as the revenue area for instance where retroactive principles have always applied and I do not see why we should be afraid to do it in this instance. I feel this is a matter of civil law, not criminal law and the constitutional aspect refers rightly to criminal law. It is concerned with the liberty of the individual and so on. Here we are talking about the civil matter. There is a long history of retroactivity applying in the case of new matters.

I think everybody would agree that there is a social need here to deal with this problem. I feel the Oireachtas should go to the ultimate, as it were, in seeking to settle it, rather than being in any way over-cautious or over-afraid of what might happen to these courts. There is a basic case——

Chairman

I have to interrupt you, Deputy. I understand there are people in the room who are not members of the committee and who are not part of the recording staff. If there are people here to advise some members of the committee then they should make it known because they have no authority to be here.

Mr. Quinn

I understood that the procedures and the standing orders that govern this committee are similar to those that govern a Committee Stage in the House. I am here on behalf of the Government in the same way as I would be if I was inside in the House and the civil servants, Mr. Lewis and Mr. O'Connell, who are behind me, are from the Department and are here in exactly the same capacity as they would be if they were in the House.

Chairman

There was no request for permission for any persons other than those who were appointed by the House to be present at this meeting and participate in it. If there are officials here without the permission of the committee, then I have to adjudicate that that is against the decision of the committee. If one part here has brought legal advisers with them, I feel the committee should also ensure that the other side also has legal advice. We should have two sides or none. The committee has not decided to have any experts advising any member in the room.

Mrs. Owen

I thought so far we had been particularly careful to follow procedures in the committee as if we were sitting in the Chamber. It is normal practice in the Chamber that a Minister taking a debate or taking Committee Stage would have to his right in a little box civil servants.

Chairman

As I interpret that, the procedures to be followed here were procedures for Dáil debates, but it was made quite clear at the outset that no member had the right to have expert advice tendered to him while the meeting was continuing.

Mr. Durkan

That was not my understanding of it. I understood that Deputy Owen originally inquired whether or not it would be permissible to call before the committee people who would be able to give expert legal opinion. My understanding was that was refused, but there was no reference to personnel from the Department.

Chairman

The meeting started without any permission being given for anybody else to participate in the discussions here and it is clear from the passing of papers that there is expert legal advice being supplied to one side in this debate.

Mr. Quinn

Possibly I owe the committee an apology. I should have formally indicated that the two civil servants were present and should have sought the agreement of the committee in relation to it.

Chairman

That is one aspect of it. The other aspect of it is because of the nature of this discussion there is going to be a lack of balance in the discussion. This is a strictly legal matter. There are some people around the table who have some legal training, but others may not have it and I think if the subject matter is to be argued adequately that expert legal advice should be available to both sides because this Bill has been brought forward by the Opposition party who, it seems, do not have any expert legal advice present in the room. Normally in the House, it is the Minister who is bringing forward the Bill and who has his officials present adjacent to where he is speaking. On this occasion it is not the Government who are bringing forward the Bill; it is the Opposition and I would suggest that if we are to have balance and equality here and even if common sense is to prevail in view of the complexity of this issue, which is strictly a constitutional question, it is imperative that if one side is to be allowed to have legal advisers present then the other side must also be so allowed. That seems fair to me if we want to arrive at a just decision. The people outside would expect that every possible facility would be provided to enable that kind of decision to be arrived at.

This is a Bill sponsored by the Opposition which is exceptional. I looked up precedents and there have been only about four other occasions when a Private Member's Bill was referred from the Chamber to a Special Committee of this kind.

Mrs. Owen

Could I further ask the Chairman, when checking precedents, was there any indication that there were any civil servants present in that instance?

Chairman

I did not check for that but I will if you wish. This is a Special Committee as distinct from a joint or other type of committee. It was set up as a Special Commitee not a Select Committee and therefore we are not entitled to send for persons, papers or records.

Mrs. Owen

But normally there would be civil servants present whether at Private Members' Time——

Chairman

Normally it is the Minister who is promoting the Bill.

Mrs. Owen

Yes, but in Private Members' Time it is the Opposition who usually put forward the motions. In Private Members are there not normally civil servants sitting there with the Minister? In other words, we are trying to adopt exactly the same procedure here as is in the House. I am not aware of what these civil servants are experts in but I assume that they are normal civil servants who would accompany the Minister.

Mr. B. Ahern

Discussing a Bill is entirely a different matter from discussing a motion. A Bill is treated separately under Standing Orders. The rules governing a Private Member's motion are totally different.

Mr. Timmins

What are the rules? Are you saying that if it is a Private Member's Bill the Minister is not entitled to have advisers in the House?

Mr. B. Ahern

I think it is a valid point. If a Minister brings forward a Bill in the House he is entitled to his advisers, but if an Opposition Bill is passed by the House to a committee the Opposition should be allowed advisers. Rather than argue about the fact that if a Minister should have advisers I think it is self-evident that the Opposition, who are the people who promoted the Bill——

Mr. Durkan

If the Bill was being debated in the House the Opposition would not have access to advisers other than the Members of the House.

Mr. B. Ahern

It was the Government who asked that the Bill be referred to a Special Committee, and not the Opposition, and the fact is that the Bill is now in Committee Stage at the wish of the Government. The Opposition, who sponsored the Bill, would be very glad if it was in Committee Stage in the House.

Chairman

I am advised that there is no entitlement on the Minister's part to have officials with him at this meeting.

Mr. D. Andrews

Could the committee agree to having the Minister's advisers there? The other point is that we did go off procedure and we are now into the Bill itself. The first Stage of the Bill has been passed and we are now on to the second section. It appears that we are going back now to procedure.

Chairman

There is an obligation on the Chair to draw the meeting's attention to the fact that people are present in an advisory capacity. I was not aware in what capacity they were present. They could have been reporters.

Mr. Lenihan

Whatever about the entitlement could we not devise our own arrangement as to whether or not——

Chairman

This is for the meeting to decide.

Mr. O'Malley

I propose that they be allowed stay. If we wanted it we could bring in somebody too but they would only be entitled to act as they would in the House, they cannot speak or give evidence or anything like that; they can convey privately their views or advice to the Minister.

Mr. D. Andrews

I second that.

Mr. V. Brady

If the advisers are staying I would presume that they would advise the committee in a balanced way rather than merely advising the Minister in response to the points made by the Opposition.

Chairman

Deputy O'Malley has proposed and Deputy Andrews has seconded that permission be given to the advisers to the Minister to remain on condition that if the party sponsoring the Bill wish to bring in advisers to advise them without the right to speak that that be allowed.

Mrs. Owen

Have we the right to do that?

Chairman

It is a matter for the committee.

Agreed.

Mr. Lenihan

I do not think this sort of measure is one that comes within the ambit of the sections of the Constitution which are concerned with criminal matters. The second point is that I feel that the Oireachtas has a social duty to go to the maximum in regard to the alleviation of the situation where an obvious injustice has arisen regarding the tenants. I feel that we should go ahead with this legislation giving the option to go before a tribunal, making it retroactive to existing cases before the courts if we feel that there is that social requirement, and in brief to test the courts' authority.

Mr. D. Andrews

I would like to support what Deputy O'Malley and Deputy Lenihan have said. I do not pretend to be an expert in matters of constitutional interpretation, but there is general agreement about the Fianna Fáil Bill now before us on Committee Stage. I think its social consequences are generally accepted to be good. The constitutional bar has now been raised by the Minister, which he is entitled to do, but I think we should look to ourselves in this respect. The Minister for the Environment during the course of his contribution on Second Stage appeared to me to be groping towards the point that if someone, for example, had litigation pending before the District Court with the right of appeal, for example, to the Circuit Court, it is in some way incompetent for the Legislature to intervene with help after he had started his case to go before a tribunal from which there was no appeal. I believe that to be a fundamental misconception on the part of the Minister for the Environment. I think he recognises that he was in error in regard to some of the responses he gave on the Second Stage of the Bill.

The constitutional provision, as has already been said by Deputy O'Malley, about non-retroactivity applies only to criminal matters. In my layman's view it has no application to the rents tribunal.

Mr. O'Malley

The reference is Article 15.5 which reads:

The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

That infringement of the law is a criminal act.

Mr. Wallace

There is this point that I want to refer to. Back in July we came before the Dáil and the Cork Deputies from all parties approached the Minister because we were becoming concerned that this legislation would not come before the House before the summer recess and the Minister drew up the legislation at short notice, and we were very grateful for this. At that time everybody expressed concern about the cases that were before the courts and we asked that they could be transferred to the tribunal and the Minister made reference at the time of the unconstitutionality of this. I think it is fair to say that maybe the word "rushed" would not be correct, but we endeavoured to get the legislation through pretty quickly at the time to accommodate the Minister, to accommodate ourselves and the people who were affected by it. I feel that some of the criticisms levelled against us in the House recently were most unfair, because we were all concerned at the time about the situation. Since then it is very clear that what has been happening is most unsatisfactory. Fianna Fáil did seek legal advice on it and our legal advice very clearly tells that this amendment can be accepted by the Government without any infringement whatsoever regarding the people's rights. If we read the explanatory note, at present the applicant, usually the landlord, can go to the courts and have the case transferred to the tribunal but the tenant may not, and it is very clear that there is discrimination alone there in favour of the landlord.

Chairman

Either party could apply to the tribunal if this Bill is passed.

Mr. Wallace

The point I want to make is that we also have got legal advice and our legal advice very clearly tells us that this can be accepted and therefore it is on that basis that we put it down and not for some of the reasons that some of the spokesmen for the Government were giving in the House when they accused us of all sorts of things on why we were bringing in this legislation.

Mrs. Owen

At present it is possible for either the landlord or the tenant provided whichever of them applies gets the agreement of the other. I think that should be made perfectly clear.

Mr. Wallace

We are all very clear that it is the landlord in most cases——

Mrs. Owen

It is my understanding that the facility is there and that the tenants are free to do so if they wish provided they get the landlords' consent, and obviously that might in some cases be difficult. It is my understanding that any application made since 2 July goes before the tribunal, so we are talking about the people whose cases are being considered prior to that. If we take the sort of logical progression from this Committee Stage of the Bill and if we decide in our wisdom to recommend to the House that the Bill be passed, it is obvious if there is legal advice that the Bill is unconstitutional that it will be challenged or put to the courts by the President after he signs it — or before that, or whenever it gets to the President. I am just wondering whether by the time we go through all that — the District Courts at the moment are actually hearing the cases that were put before them before 2 July — will it all be in vain and will there be any cases left that will want to transfer to the tribunal that at the moment cannot do so? It is important for us to have a look at that side of it also. It is my understanding that they probably will all be cleared and that by the time we have all this through, if we do decide to go through with it, there will be no cases left; they will have gone through the District Court.

Chairman

Of course, the delay in the matter was not caused by Fianna Fáil.

Mrs. Owen

I realise that. I am not making a political point; I am making a practical point.

Chairman

And if this committee and the parties in the House wished to have this Bill brought into law they could do so within a minimum period of time, if they so desired. We cannot argue that aspect of it. We are here to argue the objections which were raised in the House on the constitutionality.

Mrs. Owen

I am.

Chairman

If there are people arguing here that there is no need for this type of Bill at all, that there are no cases coming before the court——

Mrs. Owen

No, I am not saying that.

Chairman

——we can all go home. But that is not the position. There are large numbers of cases still before the court which have not been heard. There are appeals in regard to some of those cases that have not yet been decided.

Mr. Durkan

How many cases are there before the courts?

Chairman

I do not have information of that kind available to me. If the Minister in his capacity has, it would be helpful if he would make it available to the committee.

Mr. Quinn

We do not have any departmental records. We can give you some estimates, approximately 200 in Dublin to be disposed of by January.

Chairman

Does that include all the Folio Homes cases?

Mr. Quinn

It would, yes. A number of the Folio Homes cases have been struck out on the grounds that they did not provide the correct statutory notice or advance notice to tenants.

Mr. O'Malley

I understand there are 600 of those alone.

Chairman

There was an appeal against that.

Mr. O'Malley

The number would be substantially more than 200.

Mr. Quinn

There has been a case stated in relation to the Oxmantown Road Folio Homes.

Chairman

We are only getting bits of information.

Mr. Quinn

I am sorry.

Mr. O'Malley

If the position is as stated it would mean that those District Court cases probably will not be going ahead for quite a while so the point that has been made would not arise.

Mrs. Owen

I just wanted to clear it up because it has been said in various discussions I have had with people involved in the legal side and so on that perhaps it is a social problem that obviously must be tackled. But by the time we get through all this we would actually have no more to tackle. The problem would have gone away. I just wanted to make sure that is not the case.

Mr. Quinn

There has been to date — and it certainly is the spirit in which I would like to continue this — a degree of all-party support in relation to this area of legislation. I do not think it is constructive for us to attempt to score points off each other but if we want to, we can both do it. Both sides are vulnerable. Our objections have been clearly shared on both sides. The question is how do we go about doing it. As legislators, it would be a common concern that we would not do something that turned out to be unconstitutional. There are two sets of conflicting legal advice given bona fide. I would suggest to the committee that in the event that whatever action we took resulted in another constitutional raid on this particular institution, the rents tribunal, it would be to the detriment of the people whom all of us wish to try to help and protect.

I would propose, therefore, if I am correctly interpreting the degree of all-party agreement that I think is there, that I should read out quite clearly the full Attorney General's opinion. Members on the Fianna Fáil side may wish to consider that and come back with an alternative view. It is a legal opinion. It is no more than that. But obviously on the Government side we have to be governed by it. With your agreement I propose to read the points.

Mr. O'Malley

Would the Minister have copies of it? It is very hard to take in all this now. There will be references throughout it.

Mr. Quinn

What I could do, if the committee agree, is to make it available to members of the committee.

Mr. Lenihan

That is very fair. I think we should consider that.

Chairman

Do you propose to circulate it?

Mr. Quinn

I am proposing that I would circulate — I have to take advice as to whether I am at liberty to circulate the entire legal opinion in its total form or the substance of it.

Mr. O'Malley

Unfortunately, with something of that kind you either have to get the whole lot or not get it at all.

Mr. Quinn

All right, you can have the whole lot. Let us create a precedent here.

Mr. D. Andrews

That is very fair. I wonder if the Minister instead of having to read it out, could give us a copy now and let us go and study it; come back later and so curtail the thing?

Mr. Quinn

Adjourn to another time?

Mr. Lenihan

A very short adjournment. We want to do something about this matter before Christmas. Have it adjourned perhaps until Friday. We could get these copies tomorrow, I presume.

Chairman

For the sake of Government Deputies present could I say that as the promoter of the Bill I would just like you to know that we have very well considered legal opinion available to us confirmed by a number of different legal persons that what we propose in our Bill is constitutional. We are going to get an opinion from the Attorney General, circulated through Minister Quinn, which says that it is not constitutional. A former Attorney General is among the legal advisers who have advised us on the proposals in our Bill and has confirmed to us that what we are proposing here is constitutional. These are very eminent legal people on both sides — one arguing that it is and the other arguing that it is not. We humble Members of Dáil Éireann who do not have legal training might be somewhat puzzled at this type of situation which arises in our courts fairly regularly. It is a matter for those in superior authority to make decisions on matters of this kind. No matter what legal opinion is expounded by the Attorney General on behalf of the Government, because of the advice available to us, doubt will remain that what we propose is constitutional. We could be voted down in the Dáil, we recognise that, by the weight of numbers on one side. We feel that the tenants who are caught in this trap are entitled to the opportunity of having the constitutionality of this determined by the appropriate authority, which is the Supreme Court.

Mr. O'Sullivan

As a layman my reaction to this is that switch off the lawyers and doctors and you would halve the population. They would be dead because they differ so often. While going along with the sentiment of the Bill, here we are caught in this legislative proposal and it poses a far deeper question, does it not, than was first thought of. Should we be taking steps to amend the Constitution to ensure that we are in a position to make these decisions? I think everybody is concerned. It is in the best interest of the people who are affected by this proposal. Deputy Wallace and Deputy Andrews go along with your sentiments in claiming this, but we are caught up in the legalistic argument which affects the lives of people. We are totally helpless. We should try to overcome these legalistic problems.

Regarding the number of cases, I was under the impression that Folio Homes were just a recognition. I got the document from a colleague of mine in London where 900 houses were originally involved. Some of these cases have now been referred to the High Court simply because the solicitor was concerned with October. You have an identifiable group of people in the Folio Homes. In Cork we have witnessed hardship since the foundation of the State with old people who have been brought into the court sitting. These are the real victims. What we have to decide is how do we overcome the legal problems.

Mr. Lenihan

Speaking as a lawyer and one who has worked his way as a working politician there is only one way out of this dilemma, and that is to put it up to the courts and the lawyers that the Oireachtas feel that there is a social requirement that needs to be dealt with and agree with the terms of the Bill, to pass the Bill and to put it up to the lawyers and let the Supreme Court decide. That is the way out of the dilemma that is posed by our legal advisers besides the Government's legal advisers.

Mr. O'Malley

In the short term could I suggest that we consider the Attorney General's opinion anyway? If the Attorney General argues very compellingly that what was involved was unconstitutional, perhaps we and the people who might advise us would agree that this argument was right, then I think that would probably be the end of the Bill. If the argument does not seem to be compelling then the course of action suggested by Deputy Lenihan should follow, that since there is a social and political desire to try to come to grips with this problem we should pass the Bill, with the consequence that if somebody, whether it be Folio Homes or someone else, thinks it is unconstitutional let them challenge it. On the other hand if the President has doubt he himself will get separate legal advice to consider the Bill carefully before he signs it. It may well be that the advice the President will get will be to the effect that they consider it constitutional. Assuming he signs it, if any citizen or company feels aggrieved by it, it is open then to challenge it if they want to, but until such time as it is proved to be unconstitutional it is constitutional, and that is the only option that is open. I would hate to see a situation where there would be a very long delay.

Perhaps Friday morning would be an appropriate time to which to adjourn, and assuming we get copies early tomorrow morning, we would have the day to consider it.

Chairman

It cannot become law without passing through Seanad Éireann and perhaps being referred lack to the Dáil. The Seanad is meeting next week.

Mr. O'Malley

Obviously, it does not have to be referred back to the Dáil if it is not amended in the Seanad. In view of the very short time, could I suggest that it be taken here tomorrow night?

Mrs. Owen

I was going to ask, and obviously I have not seen the Attorney General's advice, would it not be equally appropriate that perhaps the Fianna Fáil advice would also be circulated? We will continue to argue perhaps from the Attorney General's point of view and Fianna Fáil members from the other side, and it may be better.

Chairman

We do not have a suitable document for circulation as such but we could arrange a circulation.

Mr. Quinn

We are debating now a point of law in relation to the interpretation of this. Both sides have received technical constitutional opinion in relation to this matter. I do not want in any way to prejudice the position the Attorney General may find himself in should he in fact have to defend the law in a subsequent Supreme Court case. It seems to me what we are saying is, so that we can actually move collectively together towards a common objective, we would circulate to each other the legal opinions we have received in a suitable format to enable us to come back and argue the case as Deputy O'Malley suggested. If you, sir, have put down reservations about the format of these documents on the Fianna Fáil side I would like at this stage to register a similar reservation about the precise format of the document that I have. The object of the exercise is to give the bones of the legal argument for and against to allow us to digest it, and then come back and discuss it.

Chairman

We would be able to circulate a document to you sometime tomorrow.

Mr. Quinn

We would be in a similar position. I want that reservation clearly understood.

Mr. D. Andrews

Six o'clock tomorrow?

Mr. Quinn

I will not be here. It is Deputy O'Brien who will be here tomorrow night.

Chairman

People who will be advising us will have to work whatever hours they are asked to.

Mr. O'Malley

In the early hours if necessary.

Chairman

I would like to make sure that we would have an opportunity of having all the legal people here.

Mr. Quinn

There is another factor which members of the committee may wish to consider since we are going into recess. I would suggest that assuming that we came to some sort of agreement on the constitutionality constraint, which is regarded by us as a very real one, what are the implications in relation to costs? I am putting in a note to facilitate a consensus conclusion, if we do wish to decide to proceed on the basis that there is no constitutional problem we are going to have to make some provision to deal with the problem of costs since at the moment if somebody goes to the District Court, the tenant's costs are covered, and the landlord is obliged to pay the costs. The same provisions do not apply in relation to the rents tribunal. Supposing if we amended the law, a tenant successfully invoked a transfer from the District Court into the rents tribunal and felt the need to be legally represented both in the legal sense and in a valuation sense, it is at the discretion of the tribunal whether the costs on the tenant's side, which would be economically the most vulnerable side, would be paid. We would want to have due regard to provide for the continuity of that as well. Otherwise, we might be doing them no favour at all. We would actually be transferring from the District Court to the tribunal, but loading them with three, four or five — I do not know what your going rate is at the moment, Deputy Andrews——

Mr. D. Andrews

I am not in the landlord and tenant business, happily.

Mr. O'Malley

He has a respectable practice.

Mr. Quinn

I see. But that is something that should be considered.

Chairman

The meeting is adjourned until 6 o'clock tomorrow.

The committee adjourned at 10 p.m. until 6 p.m. on Thursday, 15 December 1983.