Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 29 May 1946

Vol. 101 No. 8

Land Bill, 1945—From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

I move that the Committee disagree with the Seanad in amendment No. 1:—


In page 3, paragraph (b), at the end of the paragraph a new sub-paragraph as follows added:—

(vi) a certificate under the Common Seal of the Land Commission certifying that the purchaser has failed to comply with a direction under this section shall be prima facie evidence for all purposes of the fact so certified.

As the Bill stands, the Dáil has accepted Section 2, sub-section (b) (v) and the Seanad has also accepted that section. The proposal in this amendment merely confuses the legislative intent, because, while the Dáil and Seanad have accepted the certificate of the Land Commission as conclusive evidence and while that stands part of the Bill, the proposal in the amendment is to add a sub-paragraph to paragraph (b) (v) of sub-section (2) to the effect that the certificate of the Land Commission shall be prima facie evidence. This addition is entirely contradictory of the Bill as accepted by both Dáil and Seanad.

I would be unfair to the Senator who proposed the amendment if I left the Dáil under the impression that he proposed the amendment exactly as it stands. The Senator, I am sure, gave a good deal of thought to the Bill, recognising the evil which the Bill is framed to mitigate, and sought to give to the Land Commission powers which [1039] he considered adequate, at the same time striving to retain to the courts certain powers which he considered the courts should have. He therefore, proposed two amendments which were interdependent. The first amendment meant the deletion of certain words from the Bill as it stands in sub-section (b) (v) of Section 2 and with the deletion of these words and the addition of certain others, he drew up the particular amendment before the House. The Senator very clearly understood the purport of his two amendments and clarified his ideas very well on the whole subject of the amendment. Yet, the Senator rejected the first amendment, on which the second amendment now before the House depended for its efficiency or effect, and because the Seanad did so reject the other amendment this particular one is useless and I suggest it should be rejected.

I do not think, from what I know and from what I have read, that the Minister is being fair to the Seanad or has given a fair account of what occurred in the Seanad. Unfortunately, the amendments, as tabled, were not taken in their proper sequence and the debate that took place in the Seanad on this issue was on the one amendment which raised the entire principle; the other two amendments to which the Minister has referred were only consequential amendments. This particular amendment raised a very important issue — an issue which had already been raised in this House in the passage of the Bill through this House. I did think that the Minister would have shown more respect for Parliamentary institutions here. The Minister was most anxious to meet the views expressed in this House on the matter; they were views that concerned fundamental principles. So far as this Party is concerned, we made it perfectly clear that we were in complete sympathy with the Minister and that we were not going to tolerate here people being given an opportunity to make good on the land while the State was providing them with a home and a holding and where they themselves were not prepared to [1040] fulfil the terms of the contract into which they entered with the Land Commission. We made it quite clear that in those cases something would have to be done. But we were also concerned with another aspect of the matter inasmuch as we were anxious that, not only should justice be done but that it should appear clearly to the public, who are vitally concerned, that justice is done in the courts in this country. That is the reason why we opposed and that is the reason why we must appreciate that the Second House — the Seanad — opposed the principle that the Land Commission could go into a court in this country and there produce a certificate which would be accepted by the court as conclusive evidence, thereby debarring the defendant from any opportunity of defending himself. By that action the Land Commission would bring the courts of this country into contempt so far as the public are concerned because the public would naturally feel that any individual should get an opportunity of defending himself — a right which any criminal has under our Constitution

In this case a particular institution of this State was claiming privileges and this House was giving a particular institution in the State, the Land Commission, privileges over and above those possessed by the ordinary individual. When it comes to litigation and to the dispensation of justice in this country a State institution ought to be in a position to make its case in the same way as an individual is expected to make his case. Both this House and Seanad Eireann expressed themselves very strongly in this matter. It seems an extraordinary situation that the Minister, having agreed to a committee, representative of all Parties in the House, coming to meet him to discuss the matter and having shown his anxiety at that time to meet the existing difficulties, and appreciating the fact that the Opposition Parties had clearly expressed the opinion that they did not approve of establishing on the land people who were not prepared to use the land properly and, in that connection, he was most anxious to meet one man in particular — a man who might be looked upon as an authority [1041] from the point of view of the administration of the law, namely Deputy Costello — it seems an extraordinary situation that on one issue the Minister met us here in this House in so far as the use of land was concerned and accepted from me an amendment that permitted and insisted on a certificate being accepted only where a prima facie case could be established by the State and that, so far as the evidence was concerned, the particular State institution would have to make its own case in court and the defendant would have the right, accorded to him under the Constitution, of defending himself. But here the Minister is taking up a different attitude. He is now defying both Houses. He may argue that in this House he had a majority behind him. A majority vote in Seanad Eireann carried this particular amendment and the Minister is now defying both Houses in coming here and telling us that he is not prepared to accept this principle. What he is really doing is bringing the administration of justice and the dispensation of justice in this country into contempt, inasmuch as he is now expecting the public to accept this position where an institution of the State is put in a privileged position in regard to legislation over and above the position in which the ordinary citizen of this country is, because that particular institution of the State can certify certain things and that certificate must be accepted as conclusive evidence in the case. I think that even at this hour the Minister, in the interests of justice and in order to ensure that justice is properly dispensed in this country, ought to reconsider this whole matter. There may be administrative difficulties, but the principle is much more important than the administrative difficulties involved. Difficulties, after all, can be surmounted. I would appeal to the Minister now to reconsider this whole matter.

If these amendments were not taken in proper sequence in the Seanad that is not my fault.

You were taking advantage of it.

The Seanad has certain rules and regulations of its own which I do not control and I am in no way blameworthy for the manner or the sequence in which they took the amendments. I do not wish to weary the House by a repetition of all the arguments that were advanced both for and against the Bill in its passage through the Dáil. Deputy Hughes has introduced nothing new into the debate, but he has been quite as illogical as usual. He has talked, on the one hand, about my lack of respect for Parliamentary institutions, and, on the other hand, of my known anxiety to meet the views of the Opposition in regard to the Bill.

In the first instance only.

I do not know how he joins the two together. Deputy McMenamin here in the last debate told us that it was much more important that things should seem to be just rather than actually be just; and Deputy Hughes has somewhat the same idea.

No; I never said such a thing and I do not think the Minister ought to misrepresent me.

The Bill as it went through the House stands here giving us in sub-section (b) (5) of Section 2, the certificate of the Land Commission as conclusive. I doubt if Deputy Hughes has read the Bill and the amendments lately because he would see that if the amendment rejected by the Seanad, No. 1, was associated with the amendment we are now discussing there would be some logical reason for a debate. But, when the Seanad, for some reason best known to itself, rejected that amendment it withdrew completely any effectiveness from the amendment we are discussing. I could talk at length again on it.

I have admitted that.

I think we have talked it out pretty well and I suggest to the House that it is only fair to reject this amendment.

The Minister suggested in the beginning that he wanted to be fair to the mover of the amendment [1043] in the Seanad but I think he ought to be fair to this House in regard to what happened in the Seanad. If the Minister will throw his mind back to what happened when the amendment that is now on the Order Paper was passed in the Seanad I think he will recall something that I am sure surprised him at that time and that astonishes him and I am sure he does not want us completely to shut our eyes to it. When the amendment, which was amendment No. 2 in the Seanad, had been declared carried, the Cathaoirleach said: “May I take it that the decision on that matter governs amendments Nos. 1 and 3?” They were all being discussed together. Then Senator O’Dea, who certainly ought to know something about the law, said: “No, I was against No. 1 and No. 3, but in favour of No. 2”. Then the question was put and No. 1 and No. 3 were defeated. Perhaps, when the Minister takes himself back to what he felt, realised and thought when he saw all that happening, he will review the situation here in a more reasonable way. The Minister will admit that the three amendments that were moved to this section in the Seanad did hang together. He admitted in the Seanad that they did. He was, I agree, of the opinion that, as well as hanging together, they should hang. I do not know whether he really wanted them in the Seanad or not but, at any rate, when the Seanad, by a majority, passed amendment No. 2, it absolutely passed the principle that was being discussed then. In case Deputies do not appreciate that, I would ask them to look at the three amendments as they stood there. The first amendment asked that certain words be taken out of paragraph (b), sub-paragraph (v), Section 2. Sub-paragraph (v) said:

“A certificate under the common seal of the Land Commission certifying that a direction in this section was given to the purchaser” — that is (a) — “that the direction had not been revoked” — that is (b) — “and that the purchaser has failed to comply with the direction shall be conclusive evidence for all purposes of the facts so certified.”

[1044] The first amendment was intended simply to delete from that sub-paragraph the words: “and that the purchaser has failed to comply with the direction”. That is, sub-paragraph (v) is intended to remain in the form in which the certificate of the Land Commission, that a direction under the section had been given to the purchaser, and that the direction had not been revoked, would be taken as absolute evidence on that point. The amendment removed from that section the idea that the Land Commission certificate would be conclusive evidence that the purchaser had failed to comply with the direction and that idea was put in amendment No. 2 and that idea, which was the main thing that was objected to here and in the Seanad, that is, that the Land Commission would be judge, jury, advocate and everything and would be under no obligation at all to give any facts with regard to the situation to the court, was the central idea that was objected to. That was the idea that was put in the new sub-paragraph (vi) and the amendment that was passed in the Seanad was to the effect that a certificate under the common seal of the Land Commission certifying that the purchaser has failed to comply with a direction under this section shall be prima facie evidence for all purposes of the fact so certified. That was the positive statement that was made in the Seanad. A positive vote was given that instead of being conclusive evidence it should be prima facie evidence and then, in order to help the Minister and the court, a definition of residence was given in amendment No. 3.

The Minister makes certain play of the fact that the Bill left this House in a certain form but the Minister’s attitude to Deputy Costello, in taking this Bill out of Report Stage in this House, was that if the Deputy could provide a satisfactory definition of residence, he would be very glad to consider it. It was in that frame of mind on the part of the Minister that the Bill left this House, when it was not possible, considering the stage the Bill had arrived at, to have an amendment put up in this House.

Deputies will realise that all that is before us is that amendment and, while we have had some discussion of the proceedings in the Seanad which possibly were inevitable on this occasion, it is very unwise to introduce in this House Seanad proceedings and the virtues or difficulties of any legislation or attempts at legislation they may make.

The Seanad passed an amendment embodying a very important principle. That was really the principle that formed the whole basis of discussion on this Bill in this House. It was the thing, and the only thing, in this Bill to which this House took exception. It was the matter on which the Minister invited every Party in the House to send representatives to discuss with him and his officials. On that point, the Seanad sends us a positive amendment that, from the conversations here and the conversations the Minister had with the heads of Parties, he realises is one which, if it were workable, he would like to put into the Bill. In order to make it workable, there was a third, consequential, amendment, put before the Seanad.

It is not before us, because it was defeated.

But, in arguing that we ought to accept this amendment, the question does arise as to what difficulty the Minister sees in accepting it. The difficulty the Minister has in accepting it is the difficulty the Minister thinks he has in proving to a court that an allottee whom he wants to get rid of has not been in residence. For that purpose, I am showing that this could be accepted here and an amendment making it possible to operate and to operate it perfectly. We are not estopped by accepting this amendment from adding an additional amendment that will improve the legislation that we are dealing with. The process of the Oireachtas in framing this Bill does not stop when we stop this amendment. If anything else is required to be added to it to make it more satisfactory from our point of view here, co-operating with the Seanad still, in the moulding of [1046] this measure, we have procedure by which we can make that addition to the Bill and the addition that was wanted to this Bill to enable the Minister to feel that he could go before a court, with a reasonable prospect of satisfying the court on the facts of the case. In order that he could do that, and for that purpose, a definition of residence is offered to the Minister. That definition is: “That for the purposes of this section the phrase ‘to reside’ shall mean to use, sleep in and occupy the dwelling-house concerned as the normal and sole home and abode of the allottee.” Therefore I think the Minister cannot get away from accepting that the Seanad subscribed to and passed on amendment enshrining a principle that, when the Land Commission certifies that an allottee had failed to comply with a direction to reside in a holding, that would be accepted only as prima facie evidence of the fact. The Seanad accepted that, and it is surely up to this House to look straightly at that fact and realise that that is what we have been trying, with the small number of Deputies who are free from the Minister’s Whip in the House, to get accepted here and that the definition of “residence” was dropped out of the amendment sent down to us by the Seanad in perhaps some of the most extraordinary circumstances that ever occurred in any legislative Assembly. If we accept the principle, all that is necessary is a consequential amendment to make it operated and to make it an effective instrument in the Minister’s hands when putting the Minister in the position that the Land Commission are to be judge, jury and everything else on these matters. I think the Minister should accept that.

Deputy Mulcahy really used a good many words to define the position which I explained in a few words. The only thing before the House is an amendment which is contradictory with the terms of the Bill and which would make the Bill from the legal point of view impossible of interpretation. The only reason I mentioned an amendment that is not before the House in relation to this amendment is because I wanted to be [1047] quite fair to the mover of the amendment in the Seanad. I wanted the Dáil to understand that the amendment passed by the Seanad was proposed by the mover as inter-dependent on another amendment, but this is what we have before the House. It is the only amendment before us. It is contradictory with the terms of the Bill and would make legal interpretation impossible. Therefore, I merely ask the Dáil to reject it.

We have admitted that, as it stands on the Paper, the amendment does not make sense. But the Minister knows the whole history of its passage in the Seanad and the Leader of the Opposition has submitted that we have provision in our procedure for inserting a further amendment to make it operative and to put it in such a way that it can be properly and legally interpreted. I think the Minister ought to be fair when arguing about this.

Question put and declared carried.

I move that the Committee agree with the Seanad in amendment No. 2:—

In sub-section (1), page 3, line 32, after the word “enters” the words “or is deemed to enter” inserted.

Amendments Nos. 2, 3 and 4 are merely drafting amendments and I propose to accept them.

Question put and agreed to.

The following amendments were also agreed to:—

3. In sub-section (1), line 35, after the words “entered into” the words “or deemed to have been entered into” inserted.

4. In sub-section (2), after the word “made”, whereever it occurs, the words “or deemed to have been made” inserted.

I move: That the Committee agree with the Seanad in amendment No. 5:

At the end of the section a new sub-section as follows be inserted —

(3) Where, before with the passing of this Act, an interest in a parcel of untenanted land to which this section [1048] applies was treated by the persons claiming to be interested therein as realty for purposes of devolution on death, then, nothing in sub-section (1) or sub-section (2) of this section shall affect any right acquired or intended to be conferred by reason or in consequence of the interest having been so treated.

This deals with Section 5 of the Bill. In Section 5 we desire to make definite a practice that was normally utilised and which has become the custom and which we were not quite sure had sufficient legal backing. It was normally the custom always and, consequently, we decided that we needed to make it legally authoritative. The Seanad, in discussing the particular section, believed that there might be cases where land might devolve in a manner other than the usual custom which we were making the law and in that case that there might be one or two cases where people would be adversely affected. Therefore the Seanad passed this amendment which I propose to accept.

Question put and agreed to.

Disagreement with amendment No. 1 and agreement with amendments Nos. 2, 3, 4 and 5 reported.

Report of Committee agreed to.

Seanad Eireann to be notified accordingly.