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.