Dáil Éireann díospóireacht -
Tuesday, 16 Feb 1954

Vol. 144 No. 4

Rent Restrictions (Amendment) Bill, 1954—Committee Stage.

Sections 1 and 2 agreed.

SECTION 3.

(1) Where, before the passing of this Act—

(a) the tenant of any premises made an application under Section 28 of the Act of 1946, and

(b) on such application, the district justice purported to make a provisional order in relation to the premises, and

(c) that order was quashed by absolute order of certiorari,

the appropriate district justice shall proceed with the application.

(2) Where, on such application, the district justice makes a provisional order, then, subject to paragraph (a) of sub-section (1) of Section 31 of the Act of 1946 and notwithstanding anything to the contrary in that Act, the rent to be paid for the premises, as on and from the gale day next following the making of the order which was quashed, shall be the rent fixed by the provisional order or, in the event of an application by the landlord under the said Section 31, by the court on the final determination of the matter under that section.

Mr. D. Costello

I do not want to go over matters that were raised on the Second Stage last week save to repeat very briefly the objection which I have to this section remaining part of the Bill. As I indicated on the Second Reading, I feel we are legislating in Section 3 retrospectively and that the justification in certain circumstances for retrospective legislation is not here in the circumstances of this case. I believe that there would be great hardship on the particular tenant in this case if this section was not put through the Dáil, but I think it is wrong for the Dáil merely because a question of hardship is involved to get away from the principle, and in fact abrogate a principle of such vital importance as is involved in this section.

As I have already indicated, I believe the landlord in this particular case has got contractual rights declared to be given to him by the President of the High Court. I do not agree with the Deputies who spoke last week and who said it was a mere technicality. It is possible to wave aside every decision of the courts by saying such a decision was given on a mere technicality. It was not given on a technicality. It was given on the interpretation of the Act as it stood and as passed by this House. The fact that it was wrongly passed by this House should not alter the principle involved which is that the courts have declared that an individual —in this particular case a landlord— has got certain rights, an ancillary to which will be his right to claim arrears of rent. We are now taking away those rights from him by this Section 3.

There is one other matter I want to raise on this section which I think is of equal importance and that is the constitutionality of this particular section. I would ask the Minister to state whether he has been advised by the Attorney-General whether this particular section is, in fact, constitutional. I think this case comes very close indeed to the decision of the Supreme Court in the case known as the Sinn Féin funds case and I would just like very briefly to quote to the Dáil a section from the judgment of the Supreme Court, of Mr. Justice O'Byrne as quoted in the 1950 Irish Reports, page 82. It reads as follows (referring to Article 43, which refers to the rights of private persons):—

"It seems to us that the article was intended to enshrine and protect the property rights of the individual citizen of the State and that the rights of the individual are thereby protected, subject to the right of the State, as declared in Clause 2, to regulate the exercise of such rights in accordance with the principles of social justice and to delimit the exercise of such rights so as to reconcile their exercise with the exigencies of the common good."

It seems to me quite clear that we are taking away a right of a person in this Bill and we would have to persuade the High Court—if the constitutionality of this Bill were to come before them—that the Dáil by so doing was regulating the exercise, in this case, of the landlord's rights in accordance with the principles of social justice and also that we were delimiting in this particular case the landlord's rights to reconcile them in their exercise with the exigencies of the common good.

I would be extremely doubtful that it could be held that it is necessary for the exigencies of the common good that the Bill should be passed into law or that it is necessary that these rights are regulated under this particular Bill according to the principles of social justice. I should like to find out from the Minister whether he has obtained the opinion of the Attorney-General on the constitutionality of this particular section of the Bill as I feel it is very close to the decision of the Supreme Court in the Sinn Féin funds case. I also repeat the objection which I dealt with at greater length on Second Reading as to the manner in which we are legislating retrospectively to deal with a case of hardship, admittedly, but none the less taking away a legal right from an individual person.

Major de Valera

I understand we have no amendment before us. We are pretty well back on the ground we covered the last day. On the previous occasion I understood that Deputy Costello based his argument on that of retrospective legislation. Furthermore, I believe it was generally conceded in the House that in all the circumstances of this case it seemed to be a justifiable case to be dealt with in the way this section proposes to deal with it. I approached the matter from the point of view of the basis of the decision. I should like to know, before I go any further, whether any further light or information is available as to the exact nature of that decision or whether the basis on which I approached it before is correct.

If the basis is correct I think I would repeat the arguments I made the last day. In the first place I quite agree that we should lean against retrospective legislation but I do not agree that we are completely bound. The principle should be a guiding principle and should not be departed from except for a serious reason. Beyond that I think we are free to provide for contingencies such as have arisen under this Act. If this were the very first instance on which we were to line that principle, I would have considerable hesitancy about so doing. But there are numerous instances of legislation in this House from time to time over the last 30 years where there have been enactments with retrospective effect so that we are not introducing any new principle.

Mr. Sweetman

Surely not dealing with the one case in respect of which the court has adjudicated?

Major de Valera

I cannot quote for the Deputy. I know there has been legislation which dealt with matters arising out of court decisions.

Mr. D. Costello

The Sinn Féin Funds Bill was a particular one and it was declared unconstitutional.

Major de Valera

This was a different one. Somebody has mentioned the Mental Treatment Act.

Mr. D. Costello

That was not retrospective.

Major de Valera

In any event let us come back to the principle of this. I am conceding to Deputy Costello as I did before, with some care, because I think the point is one worthy of attention, that retrospective legislation should only be undertaken after great caution. It would require considerable justification. I still feel that you had a position under the 1946 Act where in regard to the rights of property in relation to the rights of landlord and tenant certain tenancies were regulated by statute. In that case rights of property were dealt with, adjusted and taken away, if you like, in some cases and conferred in others.

Under that Act the intention was perfectly clear as to what was really intended. Quite apart from the niceties of legal interpretation, I think no man of common sense reading the Act can say that the intention was other than that which was operated until this decision arose. On the other hand I see quite clearly that when it is pressed to a matter of close construction the courts of necessity, when the matter comes up before them, must look at the matter in the way of close construction. Furthermore, they are coerced by such principles as that rights shall not be taken away unless it is clearly expressed that they should be, etc.

In these circumstances a distinction appears to have been drawn between the words "district justice" and "court". The intention of the House and the Legislature was perfectly clear. It was clear and agreed upon by everybody here. It appeared to be so clear and implicit that it was being operated by the District Courts and it was being accepted by other courts for a considerable time. It was clearly intended that as from 1946 a tenant would be in the position by means of a cheap procedure to go before a district justice and get a provisional order with a minimum of costs securing for him the benefits that the Act proposed to give to him and the tenant, having done that, there were certain provisions for preserving the landlord's right in the matter. But in the net the intention was clearly that as from 1946 all tenants coming within that category should have the benefit of the provisions of that Act. I do not think that can be controverted. What, in fact, happened?

Certain tenants availed of the procedure of the Act and they got no more than it was intended they should get. The common-sense intention of the Act, if you like, was applied and a number of tenants had their rights as from the date they got their order. Then, of course, a tenant appeals and on the technical point, apparently a point of construction, succeeds. That case resulted in the tenant finding that he had not these rights as from the time he thought he had and could only enforce such rights as he had under the Act as from the present moment so to speak. That was something which was not contemplated under the Act. In those circumstances I think the equities and the merits seem to be with inserting this provision in the Act.

In a sense there is a certain dilemma before us, something purely formal. The view expressed by Deputy Costello would probably be the more sustainable one, but from the human point of view I think there is a lot to be said for the argument that if you put the tenant back in the position he was intended to be in you will not have done any real injustice to anybody. It was intended that he should have these benefits and rights as from that date. There is no injustice done to the landlord either because it was intended that he should be in that position, whereas if you leave the matter stand you will find that the tenant is not only deprived of his rights which it was intended he should have for a considerable period, but it may also affect a very large number of tenants. A very large number could be affected apart from the one individual case.

Mr. Sweetman

How could it?

Major de Valera

I do not know but I imagine that if the procedure is bad in one case it could be made bad in others.

Mr. Sweetman

Not after Section 2 was passed.

Major de Valera

That is quite true although I am not quite sure. Frankly, it was on that line of country, as mentioned by Deputy Sweetman, that I thought the Opposition, if they were serious, might have been able to give us an amendment. I thought, perhaps, that Fine Gael would have tabled an amendment something on those lines, something on the lines of blocking proceedings taking place further and confining the effect to the actual decided case.

Mr. Sweetman

Deletion of Section 3 does that.

Major de Valera

It will not. It leaves the door open to every one of the tenants to move in court to have the original order quashed.

Mr. D. Costello

What does Section 2 mean?

Major de Valera

Section 2 (4) reads:—

"This section shall not operate to validate any provisional order which has been quashed by order of certiorari made absolute before the passing of this Act."

Mr. D. Costello

Section 2 legalises all the provisional orders that have been made up to now. We are not objecting to that.

Major de Valera

It does but there might still be some question about it. If there is not, well and good, but, on the whole, you are more or less caught whether it is going to be retrospective for the landlord or retrospective for the tenant and that was the case we tried to make for the section on the past occasion. About the constitutionality of it in regard to the principle of retrospective legislation I do not know but on the question of taking away a right of property, perhaps there is quite a lot in what Deputy Costello has said. However, I think it is a matter for the Minister to look into. This is a specific vested right in an individual and if—and here is a question which is really one for the legal advisers of the Minister—it can be shown to be specifically restricted to some individual cases, as Deputy Sweetman suggested across the floor of the House now, I think there is substance in Deputy Costello's point.

Mr. D. Costello

There is no doubt about it.

Mr. Sweetman

Absolutely none.

Major de Valera

What I am not clear on is how far this can apply beyond the scope of the actual case which has been decided.

Mr. D. Costello

It only applies to one person. One person has brought proceedings by certiorari.

Major de Valera

That would be a question to examine.

Mr. D. Costello

We have examined it.

Major de Valera

Whether the section is necessary from the point of view of safeguarding against the situation to which I referred in relation to a number of other tenants of preventing retrospective effect—and even in the individual case that argument can be applied—on the whole this does need some consideration.

If you take it that there is a number of cases concerned, then I think the arguments we have made on this side hold and a court would be quite reasonable in its approach and that the arguments that were actually made here would be accepted in court because of the public need. If, on the other hand, it can be tied down to one individual case then the story might be different but it did seem to me on a cursory reading of the Act—and let us take Section 2 in conjunction with Section 3—that it was necessary to effect the general intention of Section 3. Deputy Costello has referred me to Section 2. Which part of the section is he referring to as having the effect of closing all other gaps even retrospectively?

Mr. D. Costello

Look at sub-section (3).

Mr. Sweetman

It is obviously in sub-section (3).

Major de Valera

Sub-section (3) reads:-

"Sub-sections (1) and (2) of this section shall be deemed to have come into operation on, and shall have effect as on and from, the commencement of Part III of the Act of 1946."

One of the answers to that is that if any actions pending are brought, that does not cover them.

Mr. D. Costello

No. If this Act goes through the Dáil people who bring their actions to the High Court can rely on this Bill.

Major de Valera

But not necessarily if the writs are served before the Bill is through.

Mr. D. Costello

Of course, because this is retrospective.

Mr. Sweetman

The order of certiorari for quashing must be made absolute not provisional.

Major de Valera

You are going on legal interpretation. It is conceivable the courts would hold that any action commenced and in connection with which the writs were served——

Mr. Sweetman

It does not say that.

Major de Valera

Do not let us get confused.

Mr. Sweetman

Hear, hear!

Major de Valera

I am speaking about the way the courts would interpret it and it does seem to me on first reading that Section 3 was necessary to complete the picture and that in the absence of Section 3 there was a possibility of interpreting it in the way in which I have said. However, there is no use in trying to entangle the matter in that way in the House. On the previous occasion I argued that, taking the general case, the merits were in favour of the tenant, and the House seemed to be of the same opinion.

Mr. D. Costello

There is no doubt about that.

Major de Valera

That being so this is a justifiable case for retrospective legislation of the sort here. If Deputy Costello is right in the contention that there is a constitutional point in it, it is very proper that that should be raised and brought to the notice of the Minister but even so it is probably better to put the Bill through as it stands now rather than to delete that section.

Mr. Sweetman

If Deputy Vivion de Valera had been practising at the Bar I would not say what I feel I can say since he is in an another more exalted sphere, that he had not read the Bill before he came into the House. I think his speech made it clear he had not. Two entirely different things are visualised under Section 2 and Section 3. Section 2 is the section retrospectively declaring in more clear terms what I believe the Legislature intended in 1946. It is undesirable as a principle that we should be retrospective but—and to this extent I must agree with Deputy de Valera—it is desirable that that would be a guiding principle and not a rigid rule and the merits clearly, in my view, warrant us in departing from the principle to the extent of Section 2. As I understand the position—and certainly the Minister led us to believe that this was the position-there has been so far one case and one case only in which an order has been——

Mr. Boland

One landlord and two tenants.

Mr. Sweetman

There has been one judgment—shall I put it that way, because the two judgments were the same—and one judgment only. I may say that I concede Section 2 to him entirely, but in Section 3 the Minister is, in fact, setting up the Oireachtas as a court of appeal over the legal courts. There is only the one case, for all practical purposes: we may call it the one case. The courts have decided that, in that case, the parties to the action —one vis-à-vis the other-have certain legal rights. Now that the courts have made that declaration, the Minister comes here and says that he does not like the decision the courts have taken and that he is going to turn it upside down by Section 3. I am not suggesting that Deputy Boland as Minister for Justice is doing that as a sort of Mephistopheles, but if you analyse it down to bedrock that is exactly what it is.

While Deputy Major de Valera was speaking on this subject I think the Parliamentary Secretary prompted him about the retrospective provision in the Mental Treatment Bill which we considered here before Christmas. I am grateful to the Parliamentary Secretary for having so prompted the Deputy because, in fact, it is a very strong argument in favour of our contention. It will be remembered that in the Mental Treatment Bill we were very careful to leave out of the mental home the person who had successfully contested the interpretation of the Act in the courts. What we did in that Bill was that we legislated along the lines of Section 2 of this Bill—and we were very careful to omit any Section 3.

The Mental Treatment Bill—to which Deputy Major de Valera made mention at the instance of his colleague —is the best possible precedent to have Section 3 of this Bill omitted. I seriously suggest to the Minister that the only effect of Section 3 is to set up the Oireachtas as a court of appeal in an individual case—taking away contractual rights that have already been declared by the court. I believe, from my understanding of the Constitution, that so to do may be unconstitutional. I do not know whether or not it will be contested in the particular case but if it is I think we will be in the position that we may find that not only is Section 3 unconstitutional but that the Bill and the safeguards we are trying to get for the 999 other tenants under Section 2 will also go by the board until we can bring in a new Bill again. As I understand it, it will be the entire Bill that will go, not merely the one section, because it is not a Bill that is in parts. You can deal with parts of a Bill as such but I do not think you can take out a single section and have the rest of the Bill left; that is something that is not worth the candle.

If the Minister feels that, if he drops Section 3, between this afternoon and the day the Seanad meets and passes this Bill there will be another flood of motions for provisional orders of certiorari—if that is the Minister's view —and if, on the Report Stage this evening or to-morrow, he tables an amendment that will prevent new applicants then I am quite prepared to support him because that is an entirely different thing.

The decision of the court has been given. That decision has created contractual rights between the parties. We are setting those rights aside by this section and are, in fact, acting as a court of appeal in a particular case. No matter on what side of the House we may be sitting, I think Deputies will agree that that is not a proper thing for the Oireachtas to do. The Oireachtas should lay down the general principles-and we are very properly laying down those principles in Section 2.

Major de Valera

An interesting suggestion there—I am not throwing it out merely as a suggestion—would be a qualification date in Section 3: for instance, in paragraph (c):—

"Where, before the passing of this Act...

(c) that order was quashed by absolute order of certiorari, the appropriate district justice shall proceed with the application."

Mr. Sweetman

That order was quashed prior to the 11th February, 1954, by absolute order.

Major de Valera

You could even bring it down to the date of the introduction of this Bill into the Dáil.

Mr. Sweetman

That is the date I said.

Major de Valera

Or the date of passing in the Dáil. I anticipated an amendment on those lines from the Opposition.

Mr. Boland

Judging from some of the speeches which we have heard, one would think that I did not bother to find out whether or not this matter was unconstitutional. I go by the advice I am given and I am assured that it is quite constitutional. If it went to the court, another opinion might be given; I do not know about that. I definitely and specifically raised the point as to whether or not it is constitutional and my legal advisers tell me that it is. The court quashed this order and we are accepting that; we are accepting that that order was bad. We are telling the district justice to go into the case and make a provisional order with retrospective effect. Everybody who was in the Dáil and in the Seanad at the time the main Bill was being enacted was well aware that it was our intention that, in this matter, the district justice was to have as much right to apportion the valuation of a premises, or of a room which included some furniture or amenities such as lighting and heating, as he had in respect of an empty room. Unfortunately we left out the words "district justice" when dealing with an apartment which had electric light and furniture in it. I would say that that is a pure technicality. What about the tenant? The tenant believed as everyone else believed, that he had a full right to get his rent reduced. Others had got it before him.

The accumulated rent payable since last April represents very big arrears for a working man. We have to face the dilemma either of depriving the landlord of something or of depriving the tenant. As I said last week, on the equities of the case, they are with the tenant. Others have got the same concession. It was purely a technicality that deprived them of the rights. I have thought over the matter in the course of the week-end and I must say that I do not see any reason for putting down an amendment. I was thinking of an amendment and then I decided that, in all the circumstances, Section 3 should stand. If the section is unconstitutional there is another place to decide that point. I am advised that it is constitutional.

Mr. D. Costello

I would agree to giving to the tenant the right to go back to the District Court to have a new provisional order made. What we are doing under Section 2—and we are all agreed on Section 2—is that we are allowing tenants, who at the moment have provisional orders, the protection of Section 2. That section protects them against landlords who could, as a result of this High Court decision, come in and have these provisional orders quashed.

I would be prepared to agree that the tenant in this particular case should not be in any worse position than all the other tenants who may have provisional orders at the moment which are quashable and which have not been quashed. I would, therefore, suggest that under Section 3 we would entitle the tenant in this particular case to return to the District Court and have his rent reduced but to knock out the portion in sub-section (2) which says:—

"the rent to be paid for the premises, as on and from the gale day next following the making of the order which was quashed, shall be the rent fixed by the provisional order or, in the event of an application by the landlord under the said Section 31, by the court on the final determination of the matter under that section."

That would give the tenant the right to apply to the district justice and have his rent reduced. It would not give him the right to have his rent reduced retrospectively, as will be the effect of this section. It will give the landlord in this particular case the right to claim arrears of rent.

I can visualise the prospect of the landlord in this case bringing ejectment proceedings for non-payment of rent but I think a court would be extremely lenient in this particular case in putting a stay of execution on the order on payment of the arrears and, I am sure, in very small sums, in view of the hardship in this case. It would be much better to leave to the courts the granting of a certain amount of leniency rather than we ourselves being lenient to the tenant in what I regard as an unconstitutional way.

I would ask the Minister, therefore, to accept or at any rate consider an amendment by which the tenant in this particular case would be entitled to apply to the court and have a provisional order made notwithstanding the fact that his provisional order has already been quashed and not to legislate as we are in sub-section (2) to the effect that the rent to be paid will be the rent payable from the gale day next after the quashing of the old provisional order.

That would be a fair compromise which would not take away the landlord's rights and would not completely negative the tenant's rights. I do not think it would be unconstitutional.

Mr. Boland

If this section is passed the landlord still has his right to go to the court and perhaps get a higher rent fixed than was fixed in the provisional order.

Mr. D. Costello

There is no doubt.

Mr. Boland

In that case extra rent may be fixed but, if extra rent were fixed, he would be entitled to get the arrears of that. The other suggestion would be far too much because the tenant was definitely under the impression, and so was everybody, until this technical fault was found, that he was entitled to the full reduction he got. The landlord did not avail of the three months. I understand they examined the Act and found where they were and that that is how the matter arose. The landlord neglected in the three months to do what he was instructed to do. Then he discovered that he had slipped up. He looked at the matter and found this technical fault—that is all it was. He will have the right to go back to the court, the same as the tenant, and claim an increase, if he objects to the rent fixed. That is meeting it fairly enough.

Mr. Sweetman

That stresses the point I made that the Minister is setting himself up as judge of appeal.

Mr. Boland

No.

Mr. Sweetman

Very definitely.

Mr. Boland

That is the Deputy's opinion. People who have advised me are just as good lawyers as anyone who has spoken here and they do not agree.

Mr. Sweetman

There are two different things and if the Minister would not get so excited I would deal with them.

Mr. Boland

I have a loud way of speaking but I am not one bit excited.

Mr. Sweetman

One is whether the section is unconstitutional or not. As to that, doctors differ and patients die. The Minister has his opinion on it. We have ours. It is not merely our opinion, it is the opinion of people whom we consider competent to advise us. Quite apart from whether it is constitutional or not, the Minister is putting himself in the position of being an appeal court. The Minister under the Constitution can do that but it is highly undesirable.

So far as hardship is concerned—if I may use the word—that can be easily got over if the Minister does not feel that the district justice has sufficient power to grant a stay of execution so as to provide that the arrears will be paid over a period of years by instalments of 1d. or 2d. a week. It is not the amount that I am concerned about; it is the principle involved. Once you get the principle that this House will act as a court of appeal then, in fact, you are starting to undermine the independence of the judiciary and of the courts. I do not think the Minister appreciates that that is what he is doing. That is what he is doing. That is highly undesirable. We can quite easily get a form of words that would protect the individual from undue hardship and save the principle, if that is what is worrying the Minister. What is worrying the Minister may be that there may be a flood-gate of provisional orders between now and next week, when the Seanad meets. If that is so we could easily get a form of words to prevent that.

So far as we are concerned, we take the view very strongly that once you start to put this House in the position of upsetting a particular judgment, you are starting to undermine the independence of the courts. Once you start along that road you are going on a very slippery slope indeed.

May I give notice that I want liberty to move an amendment on the Report Stage to cover the matters that we have been discussing?

An Ceann Comhairle

If the Deputy sends in the amendment it will be considered.

Question put and agreed to.

Section 4 and Title agreed to.

Bill reported without amendment.

Report Stage ordered for Wednesday, 17th February.