Dáil Éireann díospóireacht -
Wednesday, 2 Dec 1964

Vol. 213 No. 3

Private Members' Business. - Succession Bill, 1964: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Debate resumed on the following amendment:

To delete all the words after "That" and substitute "while Dáil Éireann is of the opinion that the law should require that adequate provision should be made by testattors for dependant spouse and children, the Dáil declines to give a Second Reading to the Bill unless Part IX, and the provisions consequential thereon, are deleted because of their utter unsuitability to Irish conditions."—(Deputy M.J. O'Higgins).

Mr. M.J. O'Higgins

When we broke off discussion on this matter, I was listing a number of reasons why we in Fine Gael put down this amendment and why we considered that the Government proposals, as originally introduced, were utterly unsuited to Irish conditions. I mentioned a number of them. I think I was mentioning, when we broke off, that one of our reasons was that we believed that the proposals as drafted were bound to give rise to considerable litigation, family dissension and unpleasantness of that kind.

So far as the question of unnecessary litigation is concerned, I think it is fair to say that I believe the amendments which the present Minister for Justice proposes to introduce will obviate it to a large extent. In any event, it is fair to say that the same objections on that particular ground to the original proposals do not lie at least as strongly against the modified proposals which the Minister proposes to ask the House to adopt.

One of the main grounds why we felt the original proposals would be quite unsuited to conditions in this country was the provision which was implicit in the original proposals that a testator could not leave his entire estate to his wife, if he chose to do so. I think it was clear to anyone who had any kind of knowledge of the ordinary run of wills, certainly in the city of Dublin and I think the same would be true of other large urban centres, that what would be regarded as the normal will of, for want of a better expression, the middle income bracket was the will leaving everything to the wife. That also is being remedied in the Minister's proposals. To that extent, the objection which we had to the original proposals does not exist to the proposals which the Minister now puts before us.

On the other side of the coin, so far as rural areas are concerned, the Minister will probably agree with me that a perfectly normal average type of will in rural areas in this country is the will of a small farmer who decides to leave the bulk of his estate, which is the farm, to a particular son—it might be the eldest son or it might be one of the younger sons who has shown a particular aptitude for farming or because possibly the eldest son has gone on for one of the professions, the priesthood or into a training college to become a teacher. In any event, I think the Minister will agree that it is quite a usual, normal and average type of will to find in rural areas in this country that the farmer will leave his farm as a unit to a particular son and probably make provision for his wife, if she should survive him, either that she will have some share in it or certainly that she will have, as a minimum, a right of residence and support on the farm. That, as I say, in our circumstances is a normal will and, I believe, a perfectly proper will.

The Minister has not remedied that situation in his proposed amendments. All he has done is this: he says that you cannot leave it by will but that you may do it by deed, provided you get the consent of the spouse. I think that provision certainly does not meet the objections which have been put up to the original proposals—not, let me say, primarily by lawyers who seem to be a bugbear of the former Minister for Justice but by other responsible organisations and individuals, such as, for example, the National Farmers Association.

Mr. Lenihan

I have met them and they are happy.

Mr. M.J. O'Higgins

I know that the Minister extended to them the courtesy of seeing them, as well. They may feel that the Minister has gone some distance to meet them. I do not think he has gone sufficiently far to meet them. I believe the logic of the situation presented to us now by the Minister is entirely faulty. Either it is right or it is wrong that a man should be entitled to dispose of his farm to one of his sons. If it is right that he should be entitled to do that, it is right that he should be able to do it by deed or by will and if it is wrong that he should be entitled to dispose of his farm to one of his sons, then it is wrong that he should be able to do it by deed or by will. The Minister is asking the House to adopt a ridiculous attitude by saying it is right if you do it by deed and wrong if you do it by will, subject to the modification that if you do it by deed, you must get the consent of the spouse.

Mr. Lenihan

That is the important thing.

Mr. M.J. O'Higgins

I do not think that meets the situation at all. The fact remains that the category of people of whom I am speaking at the moment will not be allowed to do what they are entitled to do now, namely, to leave the farm as a unit to a particular son. In the second explanatory memorandum issued by the Minister, the same phrases were used as in his press conference statement. The Minister appears to be adopting the attitude that because he will permit deeds of family arrangement to be entered into by a farmer or a businessman during his life, he is conferring a benefit on them. Let us think what we are doing. In fact, they have that right now and the Minister is taking it away from them to a great extent. We should recognise that fact.

Mr. Lenihan

I am confirming that.

Mr. M.J. O'Higgins

The Minister is limiting that right. The Minister is saying that a man can do it by deed, by family settlement, by family arrangement but he is in fact saying: "You cannot do it by will; you can do it by deed or family arrangement". Is not that the size of it?

As I say, I do not think the Minister has met that case nor has the Minister met another objection which we had to the original proposals, except in a roundabout and completely incidental way. The case frequently arises where a testator, for some reason which he believes to be good, and more often than not is good, wants to give preferential treatment to one of his children, either because of particular family circumstances, which may be known only to the testator and his family or because a particular child has remained at home to care for the parents when others have gone away. The parents feel that that child is entitled to some type of reward by means of preferential treatment.

There is still an objection to doing that under the Minister's proposals. Admittedly, the Minister has now come down to the point particularly that legal shares should be the right of the dependent children only. The Minister means by dependent children, children who are under the age of 21. That leaves greater freedom of disposition which may enable a man to make the type of provision I am talking about. But, to a large extent, the objection on that ground still remains.

It was urged in objection to the original proposals—to some extent this objection is still valid with the Minister's amendment—that they were a disincentive to thrift. I believe this was particularly so in the case of the original proposals because the original proposals had set fixed shares for children irrespective of age and irrespective of their own particular circumstances. No matter how he conducted himself, a person who was a child of a comparatively wealthy family knew that he was going to get a share, come what may. To some extent that objection remains, not by any means to the extent to which it existed before.

There is also another difficulty, that is, when you have this kind of complicated legislation being introduced, the difficulty of the testator who, either because he left it too late, through being dilatory or because he was suddenly taken ill, or involved in an accident, makes a deathbed will. At the moment he can make a simple will without having to go into fractions, without having to evaluate his estate or to get someone else to value it for him. He can make his will according to his concept of fair play and justice, which, again, let me repeat, is remarkably high among testators in this country.

The person who is faced with the position of making a deathbed will has to think of a whole lot of things. He has to think what is the value of his property, what is the value of this or that portion of his estate. He has to think if he makes such and such a will, is he offending against the new rules which are being introduced which say a widow must be entitled to so much and the dependent children entitled to so much? That objection still remains.

I am not entirely sure either whether it is right in making legislation of this sort which proposes completely to alter a person's right of disposing of his property by his will, that it should be made to operate on existing wills. The proposal was, until today, that this Bill was to apply to every will of a person who died after 1st January next, irrespective of when the will was made. The Minister has indicated—and in fairness to his predecessor, he indicated it also after he had become Minister for Agriculture —that he is no longer adhering to a particular deadline. He has indicated that he would be prepared to accept a year from 1st January next. There was an objection which, again, let me say in fairness, does not exist now arising under Part X of the Bill whereby if a person did want to disinherit a member of the family, it was essential that a great deal of washing of dirty linen should take place in public. I was interested to hear the Minister's remark today in making his case against the system that obtains in England. It struck me that the Minister's remarks on that were certainly very relevant to the proposals which his predecessor had included in Part X of the Bill so far as the disinheriting clauses of the Bill were concerned.

The Minister has also modified now section 117 with regard to voluntary disposition. He is modifying it only to the extent of cutting the period from ten to three years and of excluding certain things like insurance policies, pension rights and deeds of family arrangements where consent of the spouse is concerned. I think there is still an objection to this section. It still means that all the voluntary dispositions, made in a perfectly genuine bona fide manner for the wellbeing of the family will be suspect for a period of three years. It will be quite impossible for a voluntary donee of property in those circumstances to raise credit on it because his title is not clear for a period of three years. That is a valid objection which existed to the original proposals and which exists equally strongly, but not for the same length of time, to the Minister's modified proposals.

The overriding objection to the original proposals, which still exists to the Minister's proposals, is that in questions of testamentary disposition, no two cases are alike. It would be an extraordinary coincidence if you did come across two exactly similar cases. All sorts of individual and family circumstances, which will be known only to the testator and his family, will exist and in those circumstances a general rule of the type being proposed, either in the original proposals or in the modified proposals, certainly seems to be somewhat out of place.

I recognise there is a difficulty which must be dealt with and tackled. When we in the Fine Gael Party moved a motion in these terms last November, we recognised that that difficulty existed. The motion we moved was:

That Dáil Éireann is of opinion that legislation should be introduced at an early date to provide that a person may not dispose by will of his property without making adequate provision for a dependent wife and/or children.

An Leas-Cheann Comhairle

Will the Deputy give the reference?

Mr. M.J. O'Higgins

Column 1029 in the Official Report of 6th November, 1963. I think it is necessary that legislation should be introduced to make that provision, but the Government decided not to do that and not to bring in legislation which would be directed towards remedying the particular problem that existed. Instead of doing that, they chose to bring in a comprehensive Wills Bill.

There are many good features in this Bill and I shall deal with them shortly. So far as the particular problem I have already mentioned is concerned, it seems to me that what was required, and what is required, is, first of all, an assessment of the size of the problem that exists. Secondly, the Minister may take it that we are all in agreement that the particular problem of the inofficious, undutiful will should be remedied. It is a question of method of approach, if you like. I can see it is possible to have many different views, all equally sincere and perfectly honest approaches, to this question. There may be disagreement, and violent disagreement, with regard to the methods. To that extent, I am sorry the Minister did not, first of all, circulate a White Paper which would enable orderly discussion and examination to take place, and, secondly, that he did not decide, when a Bill of this sort came along, to have it referred to some type of Select Committee for examination.

Let me state my attitude to this as briefly as possible. I think it is one thing to say you must ensure that spouses and dependent children will be adequately provided for. It is a different matter to say you can only do that by providing that the State will dictate to a testator, with regard to a particular share of his estate, as to how that should go. I have already indicated my view, and I believe it is the correct one, that while the problem does exist it is an exaggeration to say it exists on a great scale.

Mr. Lenihan

Deputy MacEoin did not think so.

Mr. M.J. O'Higgins

If he did not think so, I disagree with him.

General MacEoin

I have a few words to say now if the Minister would like to hear me.

Mr. Lenihan

All right.

Mr. M.J. O'Higgins

I think we can approach this by agreeing on a number of propositions. We are in agreement, first of all, that a man is, as a matter of right, entitled to the ownership of private property. We are in agreement, secondly, that a married man has obligations and responsibilities towards his wife and children. There is a third proposition which I believe to be valid but which, I think, judging by the performance in relation to this Bill, the Government do not accept. The third proposition which I believe to be valid, and which I accept, is that in this country the great majority of Irish testators do make proper wills which make proper and adequate provision for their dependants.

As I have already said, and I can say this from personal experience, a very great number of testators go to the trouble of discussing the provisions which they propose to make, not only with their solicitors, not only with accountants, but with other members of their family as well. They show a concern, not only that their wills or their testamentary provisions will be workable, but that they will be scrupulously fair as well. I go from that to ask myself whether it is right that in the case of the vast majority of testators who do make proper wills, making proper and adequate provision for their dependants, that the State should interfere with their wills in order to remedy a limited problem which, admittedly, is there. My answer to that question is, "No". What is needed is an alteration of the law limited to the particular problem, not an alteration of the law of general application which will apply to everyone for the sake of getting at the few.

So far as the inofficious will is concerned, I want to make it quite clear that I do not mind what type of provision is brought in to ensure that the situation created by that will will be remedied. I think it would be quite proper for the Minister to adopt the system of fixed shares, to adopt, if he likes, the system of saying that if the will is an undutiful will it can be completely set aside and the entire of that estate will go in whatever proportions this House should decide to the spouse, or, if there is no spouse, to the children, or in different shares between the spouse and the children. Approaching it that way, the Minister will be dealing with the problem that requires to be dealt with and, at the same time, he would be leaving without interference the majority of people who make good and proper wills.

Let me say this while I am on the subject. The Minister in his introductory speech today—and the former Minister on at least one occasion— referred to this country as being one of the few civilised countries that have complete freedom of testamentary disposition. As I understood it, these ministerial references seemed to indicate that there was something to be ashamed of in that, that there was something for which we should apologise. I do not accept that. It should be rather a matter of pride to us that we had that freedom of testamentary disposition and that it has not been necessary, in a general way, to legislate with regard to it. It simply indicates, by and large, that in this country there has been a high sense of social justice which did not render interference by the legislature necessary.

Mr. Lenihan

Why the Deputy's amendment, then?

Mr. M.J. O'Higgins

The amendment was to deal with the particular problem of the inofficious will. The Minister should deal with that problem without interfering generally with the wills of testators who make proper wills. It is not everyone who will accept that view. People may advance very forcibly the view that once you are making an alteration it is better to let everyone know where he stands, to have a general rule so that everyone will know he has to conform with that rule.

So far in this country, with the exception of the inofficious will, that has not been necessary. It is a tribute to the social sense of our people that it has not been necessary: it is not something we should be ashamed of or in respect of which we have any need to apologise. It is not a flaw. It is not something that should be subject to criticism.

The Minister mentioned in his introductory statement that he had consulted a number of independent experts. I should have thought an expert was an expert: I do not know what "independent expert" means in this context. A person is either an expert or he is not. I should like to refer the Minister to a letter which appeared in the Irish Times on 25th November last by a very eminent senior counsel who is certainly not a politician. I do not know what his political views are or for whom he votes. He is a person who most of us would regard as an expert in this field. He wrote in the Irish Times, after the Minister had made known the amendments he proposed making to the Bill:

The amendments now proposed by the Minister for Justice leave some of the most objectionable features in this Bill still standing and are such as to create new injustices. It is still proposed to dictate to a majority of testators how they must dispose of a fraction, varying from one-third to two-thirds, of their property. It is still proposed to invalidate dispositions not made for full valuable consideration and taking effect within a certain period before the testator's death or on his death, or later, if it appears to the court that the disposition was made in order to defeat or substantially diminish the share of spouse or issue as a legal right. It is proposed to delete subsections (4) and (5) of section 119 (which provided that persons guilty of "dissolute or dishonourable conduct" or—in the case of issue of the testator—who were adequately provided for might, in certain circumstances forfeit or lose their "legal right").

Mr. Haughey

We should have looked to the Bar Library for enlightenment.

Mr. M.J. O'Higgins

I have dealt with the jibes of the Minister for Agriculture at the legal profession and I have a measure of confidence that his successor will disown him and his jibes. The letter I have read is the view of a person——

Mr. Lenihan

I do not see the logic in the argument.

Mr. M.J. O'Higgins

It is a very long letter.

Mr. Lenihan

I have read it.

Mr. M.J. O'Higgins

I have given the reference and the Minister may look at it if he wishes. I simply mentioned that because I do not know the political views of this man. I take it that when the Minister referred to independent experts he was talking in the political sense—that he was taking the views of people who were not wedded to any political Parties.

Mr. Lenihan

We had a very long memorandum from them as well.

Mr. M.J. O'Higgins

The Minister should recognise that this man would be regarded as an expert. It may be that the Minister does not share his views, but that is certainly an expert view which goes against the Minister's amendments.

With regard to the details of the Bill, I should imagine, offhand, that threequarters of the Bill is unobjectionable. Many features of the Bill are very good and I would have no objection to them. I would have no hesitation in commending them to the House as being an improvement on the existing position. I would urge on the Minister, however, to consider the case that is made and to consider withdrawing the Bill in its present form and coming back with a completely new Bill which will not have any of this whitewashing——

Mr. Lenihan

We can discuss it in Committee in a sensible way.

Mr. M.J. O'Higgins

Before I finish, I should like to suggest to the Minister that the whole thing is rather topsy-turvy at the moment. A number of modifications were suggested by the Minister at his press conference and subsequently in his explanatory memorandum. We have not yet seen the full force of the amendments he intends to make. He mentioned in the course of his remarks today that there were three proposed additional amendments not dealt with in the explanatory memorandum. I submit it is absolutely necessary in these circumstances that the Bill should be recommitted on Report Stage.

On the Committee Stage we shall have an opportunity of seeing for the first time the full Government proposals. In my submission, we should see those and have them before us on the Second Reading. In fact, we shall not have them until the Committee Stage and the first real consideration we can give to the actual amendments will be at that stage. The Minister might now indicate whether he would be prepared to recommit on Report Stage. However, that is a technical matter. I am not entirely sure what the Minister intends to do with regard to section 37. I rather got the impression today that that section is being withdrawn entirely.

Mr. Lenihan

Yes.

Mr. M.J. O'Higgins

If he is doing that, the Minister is doing well. He has improved the position which was proposed by his predecessor. He also indicated today—neither did this appear in the explanatory memorandum—that there would be an amendment to section 63 dealing with advancement which possibly removes one of the fears had in that connection. I understand the gift of spouse will not come under the advancement section.

Section 77 also requires very careful consideration on Committee Stage. That is the section that deals with the witnessing of wills—the Minister mentioned it today. There is no doubt the proposals in the Bill will simplify will-making. That is all to the good. The question we have to consider is whether the simplification taking place will not open the door to fraud and mistake which, to a large extent, is guarded against in present procedure. At present it is necessary, as the Minister knows, to have a will signed in the presence of two witnesses. Both must be present at the same time and all three parties—testator and the two necessary witnesses—must be there at the same time and must be able to see each other signing. The proposal now is to get away from that, still to require two witnesses but witnesses who need not be present at the same time; one could sign at one time and another could sign later. It may be that that proposal is a worthwhile one but I have the greatest doubts about it. We can overdo the idea of simplification and that is one of the cases where we must certainly be on our guard.

There are a number of detailed matters in connection with the Bill that are more opportune to be dealt with on Committee Stage. I do think that the altered provisions with regard to intestate succession are, by and large, an improvement on the existing position. I could never understand why, in the case of an intestacy, where the husband died leaving a wife and children, the widow should get only one-third and the children should take the two-thirds. That position is being reversed under these proposals and that is a substantial improvement and one which should be accepted. Also at present if a man dies leaving a widow and no children, the existing provision is that the widow takes a first charge of £4,000 and one-half of the remaining estate, the other half goes to the next-of-kin in equal shares. It is proposed to alter that so that in future where a man dies leaving a widow and no children, the widow will take the entire estate. That is also a worthwhile amendment.

There are many other matters of details that would take me a long time to go into and I do not propose doing so now because they are more proper for Committee discussion, but may I conclude as I started by protesting against the unreal manner in which this Bill is presented to the House, where the House is not being given an opportunity of seeing the entire of the Government's proposals as we should be given when we are asked to give a Bill a second reading?

General MacEoin

I second the amendment. I will say a few words as I am at it because the Minister is of the opinion that I held a certain view that was contrary to that held by my colleague. Speaking last September 12 months, I said that there were some cases in which there was no provision for the widow. Speaking in that context, I referred to a man with a large, valuable estate who deliberately left his widow or children out of the picture and I said that was a shocking state of affairs. I do not think that the number has been very great——

Mr. M.J. O'Higgins

I hope the Minister will excuse me. I am off to Galway.

Mr. Haughey

An idle errand.

General MacEoin

The Minister very properly described this as a very technical Bill. It is a Bill that lawyers know most about. It has been introduced by a lawyer and there are several supporters on both sides who, I suppose, will speak to it, but there are a number of people who are not lawyers and who have very positive views on the whole question. Let me say right away that threequarters of the farms in Ireland have a gross value of under £5,000 and therefore when the State steps in and says that a man may not, without the consent of his wife, bequeath the farm or the small business or the trade to his son, it is doing something that is rather strange.

Take the case of a farmer with £35 valuation. It is a fair farm; the family has been reared on it—I am citing cases I know of without mentioning names—and the eldest boy works the farm with the father and mother. He went to school until he reached sixth standard and then undertook the task of assisting the father on the farm. He helped to educate two or three brothers. I know of one case where one son has already gone to college and has obtained a post in the Civil Service or in the bank. The eldest boy has been working all the time and has helped the father to pay for the education of the other members of the family. The State now says that the father cannot bequeath that farm to the eldest son without the consent of the wife.

That is a rather serious situation but is it not strange that the father can drink out the place without the consent of the wife? He can gamble it, play poker with it and lose the whole thing without the consent of the wife. He can go to the dogs with it and bet under the legalised system of betting and lose the farm without the consent of his wife and it will be perfectly all right, and there is nothing that this Bill can do to stop it. Yet the Minister says that he cannot do what he wants to do and what in justice he should do. Is it not true that in 90 per cent of the cases, as the Minister himself knows, the normal will for the small farmer to make is to bequeath the farm to the eldest son, the mother to be maintained in the manner in which she had been accustomed?

Mr. Lenihan

That is still permitted under the Bill.

General MacEoin

With the consent of the wife.

Mr. Lenihan

That is a different matter. That is a deed during the lifetime.

General MacEoin

Does the Minister say that that is still going to operate?

Mr. Lenihan

If the wife wants it that way, she can have it.

General MacEoin

I do not read the Bill that way. If the Minister can convince me that that can still take place in the 90 per cent cases relating to the farm, the small business, or the trade, then most of my opposition to the Bill will be removed.

Mr. Lenihan

Section 115.

General MacEoin

I will take the Minister's word for it. That removes part of my objection but, on the other hand, any general assignment is without the consent of the wife. Family settlements are frequently made in which a son has been working on the farm for a long time and finally says that there will have to be some agreement. The farmer has to get the consent of his wife to make an agreement.

Is it not true to say that where an estate is valued for £3,000 and where it is divided between a son and a wife that division is going to disqualify the widow from getting the widow's pension? Her share would be £1,500 and if the pensions officer can prove that there is an estate valued £1,500 which will go to the widow she is going to get it in the neck. Therefore, this Bill will relieve the Department of Social Welfare of some of its responsibilities for widows' pensions.

Mr. Lenihan

I think that is also covered by section 115. She can elect.

General MacEoin

The Minister should see if this is so. I am informed that the section does not cover the case I mentioned. I admit that the person bequeathing the estate should make provision for the widow and for dependent children and I advocated that in the motion which was before the House last September 12 months. But there are some extraordinary cases. Pride in this country is a thing that has queer results. I know a farmer who valued his farm at £20,000 and who made a will bequeathing the farm to his son, some thousands to his wife and so many thousand pounds to each of three daughters based on that £20,000 valuation. The truth of the matter was that the farm was not worth £4,000 but it went into court and the net result is that neither the son, the widow nor the daughters got the farm. By the time the courts were finished with it it was sold by public auction and that was the end of it.

When one starts settling fractions the difficulties arise very quickly. I heard my colleague say that there should be a set figure. That is extremely difficult to do and it is hard to legislate for this particular type of case. The one I have mentioned is a recorded case. One daughter sued for £2,000 and the others went for their £2,000 each, the result being that the son was left out on the side of the road. There are other cases of which I know. Normally the the owner of property should be allowed freedom of choice in this matter. The Minister tells me that he has the right to bequeath it to the son who was helping or as he thinks best. If that is correct, it does remove some of the objections I had to the Bill.

There was one thing that did upset me in the Minister's speech. He said he had taken the opinions and examined the systems obtaining in several countries. He cited and thanked certain authorities for the help they had given him but I did not notice the name of one single Catholic social teacher in the lot, at least not one that I know. The speech the Minister made on this Bill today could have been made by a British Secretary of State for Home Affairs or Secretary of State for the Treasury, it is that lacking in any reference, as far as I could see, to social teaching as we understand it.

Parliamentary Secretary to the Minister for Lands (Mr. Colley)

May I assure the Deputy that the man from Munich is one of the most distinguished Catholic scholars in Europe.

Mr. Dillon

Name him?

Mr. Colley

Dr. Murad Ferid.

General MacEoin

He is brought in with people from Scotland and with Lord Somebody from somewhere else. We got no indication as to what he was an authority on. If he is a prominent Catholic social teacher, is it not reasonable to expect that the Minister would have said so in his speech? I never heard of him; whether that makes any difference or not I do not know. Did the Minister accept his views? Are his views implemented in the Bill or was he just consulted and then politely told that we were grateful for the assistance he had given?

Mr. Colley

I am informed that he expressed the view that this is an excellent Bill.

Mr. Dillon

I should like to see that view on paper and if he did say that I should like to study his credentials.

General MacEoin

I rose to second the amendment moved by Deputy M. J. O'Higgins and to support the views he expressed on a highly technical Bill, made more complex and difficult by the manner in which it was presented. I do not see why the Minister could not withdraw the Bill and re-introduce it with the amendments in it. That has been done before.

Mr. Lenihan

We can discuss the amendments in a sensible way on Committee Stage.

General MacEoin

Fianna Fáil do everything the sensible way.

Mr. Lenihan

This is a Committee Stage Bill, not a chapel-gate Bill.

Mr. Dillon

By jove, you took mighty good care it was not a chapel-gate Bill. You ran away from it like a scalded cat and you were very wise.

General MacEoin

I do not blame them for running away from it, even at the chapel-gate. But, even at this late stage, I think the Minister should withdraw the Bill and re-introduce it. There is nothing objectionable in that. It does not mean success or defeat for anybody.

Mr. Lenihan

I have a very open mind genuinely to any Committee Stage suggestions.

Mr. Dillon

I bet you have. It was battered open.

General MacEoin

If you are open to argument, which this deliberative Assembly should be, we are getting somewhere. The Minister would serve himself and the Government well by taking that step.

Mr. Corish

The Minister and his officials must have spent a considerable time on the preparation of his opening speech. He went to tremendous lengths to justify the main proposals in the Bill. He put so much preparation and research into it that one wonders whether this was done prior to the Government changing their minds on Parts IX and X, or afterwards. If this work was undertaken prior to the publication of the amendments, it was so much wasted effort. It demonstrates to me that it was public opinion, through the press, speeches and consultations, that induced the Minister to make these changes, which the House welcomes.

Deputy MacEoin wondered if a Catholic social teacher had been consulted, and the Parliamentary Secretary to the Minister for Lands assured him that a Minister for Social Welfare in Germany, who was in fact a Catholic, had been consulted. I do not think there was any necessity to say that. The Minister went back even to the Book of Numbers in justification for some of the proposals included in this Bill.

Mr. Lenihan

We had some of the top Catholic theologians in this country also.

Mr. Corish

Where would you get better than Moses? The Minister quoted the Daughters of Salphaad making an appeal to Moses and claiming the right of succession to their father. The Minister also invoked the Constitution in justification of the major proposals in regard to the making of wills. I take no objection to that. The length to which the Minister has gone to justify his proposals emphasises the strong feeling there has been, and still is, with regard to the main proposals in the Bill. There has been much public controversy. As it is essentially a Committee Stage Bill, plenty of amendments will be made.

Like Deputy MacEoin, I find myself at a disadvantage. This is a lawyers' Bill. I do not mean to give the impression it has been created merely for the benefit of lawyers, but it is a Bill they can interpret more easily than Deputy MacEoin or I, if he will forgive me. I had better make the usual complaint about the parliamentary draftsman. Is it possible to get Bills of this kind into simpler language? I know one cannot get Bills like this in words of one or two syllables. Admittedly, the White Paper was of tremendous advantage, but it was not possible for it to give the whole picture and describe the many changes proposed in respect of wills generally or to make clear the major new proposals now contained in the amendments. It is extremely difficult, especially when one finds Latin phrases. I do not know why these phrases are still used. Some of them, by reason of the elementary knowledge we may have of Latin, come easily to us. But it is high time we got rid of these Latin tags and put these phrases into English. I do not know the reason for the Latin. It certainly confuses—maybe it is meant to—the ordinary layman dealing with legal matters.

General MacEoin

You will get them at the end of the dictionary.

Mr. Corish

I know, but I do not think I should be put to the trouble of having to go to the dictionary in connection with a Bill introduced here. The Minister anticipated that the Bill would become an Act by 1st January, 1965. I am glad he said in his speech that he now hopes it will come into operation on 1st January, 1966. I trust that is an indication of the attitude the Minister will maintain in this House in dealing with this Bill. Even from the speeches today, it must be obvious to him that this is not a political Bill. There are no kudos for the Labour Party in it.

While I may preface my remarks by congratulating the Minister on his appointment to the Ministry and on his initial appearance here on a major measure, I think he could set an example to Ministers at present holding office by being a little more liberal and generous when it comes to a Bill of this kind. If we are discussing the turnover tax, let us eat one another like gentlemen in our opposition to it or support for it; but this is not the sort of Bill that should engender any hostility between any of the three Parties in the House. Therefore, the Minister should determine to be receptive to any genuine and sincere proposals made by this Party, Fine Gael and particularly by members of his own Party.

I do not know whether they are unusual or not but they always seem to be very dead when it comes to the Committee Stage of any Bill. I can appreciate that they do not want to appear to be stepping away from the Party line, but this is a Bill where the Minister has little or nothing to lose. In a delicate matter such as this, the Minister should be determined to allow the House to make this the Bill the House and the country want, not what he wants or what the former Minister wants, or even what the Government want. The Minister must appreciate the fact that we represent a considerable number of people. We, in the Opposition, represent, let us say, one-half of the people. I do not say that Fianna Fáil have any sinister motive in introducing this Bill but I do not think they should, in this instance particularly, appear to want to shove their opinions down the necks of the Irish people on a very delicate matter such as this.

Mr. Lenihan

I agree fully with the Deputy.

Mr. Corish

However, I must say that in the Bill as we now have it, apart from the amendments that have been announced by the Minister for Justice, the former Minister for Justice seemed to have little regard for the commonsense of the Irish people. They might have had to accept it by reason of the fact that it might have been passed by a majority, by those who were on the Government side of the House, but I think they would have resented bitterly the strong conditions and the very direct conditions that were to be laid down for the making of a will.

I think I am right in assuming, as Deputy O'Higgins said and as the Minister said, that this is legislation for a small minority. He says it is necessary legislation for a small minority. It should be said and repeated in speeches on the Second Reading that it is not typical of the Irish people not to make adequate provision for their wives and for their children. Therefore, it is right for us from all Parties to declare that this is no reflection at all on the vast majority of the Irish people but that the proposals contained in this Bill are to ensure that a very small minority will do what we think they should be required to do, that is, to make provision for their wives and for their dependent children.

I am afraid that as far as I and my Party are concerned we cannot be very positive in our opinions on many of these sections because if one were to deal with the whole Bill in a Second Reading speech, it would take any of us hours to give our views, to churn the problems over in our minds and then to arrive at a solution. That has to await the Committee Stage. Therefore, as far as we are concerned, we will make up our minds on the various proposals as they come up on Committee Stage.

The Minister has suggested certain amendments here in respect of the making of wills and the provision for wives and dependent children. One-half of my mind says it is the right of every man to decide in making his will how he will dispose of his property or of whatever money he has—I suppose that is the first thing that springs to one's mind in considering a measure such as this—but, there immediately springs to one's mind the undoubted fact that, if a man does not provide for his wife and for his dependants, there should be some regulations, some law, some authority to ensure that he will.

I certainly do not say that the first proposal of the Minister in respect of the making of wills was proper and correct or acceptable to the Irish people. I am not prepared to say yet that his second proposal, as it is worded, is acceptable to me and to the people whom I know. Therefore, within Committee, I trust that with the combined wisdom or, if you like, experience of the members of this House we can evolve some sort of system to ensure (1) that a man will have the greatest possible freedom in the disposal of his money and (2) that in the disposal of it, there will be adequate provision for his wife and dependent children.

I do not know whether this commends itself to the Minister or not but I agree with the members of the Fine Gael Party who have spoken in this debate that it would have been far better if the Minister had brought in an entirely new Bill because people, when they come to consider this Bill, will not be thinking in terms of Parts I to VIII. They will be concerned with Parts IX and X particularly. That is the whole Bill to them and it is rather a hotch-potch merely to amend the Bill by changing the main provisions and the provisions about which people are concerned. They believe that these are the only provisions that are in the Bill. The rest are necessary and welcome improvements. For that reason, it might have been better if the Minister had brought in a new Bill. However, maybe it is too late for that.

Mr. Dillon

Not a bit.

Mr. Lenihan

We can discuss it on Committee Stage.

Mr. Dillon

You cannot discuss it on Committee Stage when we are now discussing the Second Reading of the Bill as it now is.

Mr. Lenihan

As Deputy Corish says, we can have a sensible discussion on Committee Stage on the various proposals made.

Mr. A. Barry

He is only covering up.

Mr. Dillon

I know. These matters are laid down by the Constitution.

Mr. Corish

If the Minister and the Fianna Fáil Party vote against it, I do not think our attitude should be changed by reason of the fact that we did not get our way in this but I do think it would have been better if the Bill had been scrapped and a new Bill brought in. I do not know if it commends itself to the Minister or even to the members of the Fine Gael Party, but I think it might be a good idea if this Bill were submitted to a Select Committee of the House. I do not want to denigrate the efforts of those who attend here in Committee. We have had examples in the past of extremely good work being done expeditiously on the Companies Bill and the Electoral Law Reform Bill and perhaps the Minister and the Fine Gael Party would consider the suggestion that we put forward, in any case, that this Bill be committed to a Select Committee of the House for detailed examination and, again, on the assumption that there is an open and receptive mind on the part of the Minister for Justice.

Even though my notes include references to sections of the Bill, I do not want to take up the time of the House by going into these matters because this is a Committee Bill, whether it is dealt with in the House or by a Committee appointed by the House. As Deputy O'Higgins said, three-fourths of the Bill represents acceptable, very desirable improvements—there may be changes needed here and there—and a certain amount of codification of the law and, for that, the Bill is welcome but my welcome for the Bill is not a 100 per cent welcome.

As far as the main proposals in the Bill are concerned, we will give our point of view here in discussion, and if the Minister is receptive and accepts our point of view or part of our point of view, combined with that of other members of the House, particularly of his own Party, I do not think he will have much trouble. However, it is essential that this Bill be approached with an open mind by all Parties in the House, particularly by the Minister, in order to ensure that we will, in fact, get a Bill that the vast majority of the Irish people will accept.

Parliamentary Secretary to the Minister for Lands (Mr. Colley)

Deputy Corish has put very clearly and very forcibly what is undoubtedly true about this Bill, that it is, first, from, if you like, a technical point of view in the House, a Committee Stage Bill and, secondly, a Bill which affects the vast majority of the people in a very special and intimate way and that, therefore, if the House is to deal effectively with it, that dealing will take place on Committee Stage, and the Minister will maintain an open mind and will listen to any sensible suggestion from any part of the House. It is because I know the Minister has an open mind and is anxious to get the benefit of any suggestions available in the House that I am speaking on this and want to question one or two provisions in the Bill.

I know the Minister's approach is that this Bill to be effective must be generally acceptable to the House and to the Irish people and that there can be no question of trying to ram the Bill through. I have no doubt that that is the Minister's approach and that that is the kind of Bill we shall get. Unfortunately—I think Deputy Corish made some reference to this fact—the Bill has been seen out of perspective because two parts of it which led to considerable discussion in the newspapers and otherwise appear to most people to be the only provisions or the only important provisions in the Bill. But this, of course, is not so.

This Bill, in my opinion, represents a further advance in the programme of law reform which has been undertaken by this Government, the ultimate objective of which is to ensure that the laws of this country, those which have been enacted by Oireachtas Éireann, are in keeping with the needs of this country in the second half of the twentieth century and are enlightened by an approach to social justice which did not exist at the time that many of our existing laws were passed and which we have inherited from the British Parliament. The Bill is doing a most important job in getting rid of old statutes, in not re-enacting those of their provisions which are not appropriate to our present requirements, and in introducing new provisions which are appropriate to our present requirements.

It is also from a lawyer's point of view a considerable advance to have the law relating to the succession to property of all kinds contained in a consolidated measure. It may appear that this last point is one of interest only to lawyers, but this is not so. While it makes life easier for them ultimately, it contributes to the benefit of their clients who constitute all of our people, sooner or later. If the lawyer can do his work more efficiently and more expeditiously, this is to the benefit of his clients. If our programme of law reform enables this to be done, if it does not ultimately result in the reduction of legal costs, it certainly will help to keep them from rising in so far as we are making it possible for lawyers to be more efficient. For that reason also I welcome the steps being taken in this Bill.

I should like to comment on some of the principles involved in the Bill. First, it is proposed to abolish the descent of real property to the heir-at-law. This is a reform which is long overdue. Perhaps I might illustrate the necessity for it to somebody who is not familiar with what is involved by mentioning a case with which I am familiar. A man purchased a plot on which to build a house. It so happened that he had to purchase a plot from two different vendors in order to get the actual site he wanted for his house. He did it and built his house. He subsequently discovered that, because one of the sites which he had purchased was a leasehold property and the other was a freehold, the dividing line was running through his kitchen.

Mr. Dillon

He must not have had a very efficient lawyer.

Mr. Colley

This could not be overcome by any lawyer. You buy what you get. You cannot convert a leasehold into a freehold.

Mr. Dillon

At least they ought to have known what they were doing.

Mr. Colley

The lawyer knew what he was doing but the point is that this man found himself in the position under the existing law that if he did not make a will, portion of his kitchen would descend to his heir-at-law and the remainder of his house would descend to his wife and children. I suppose this is an extreme case but it illustrates one of the reforms that is long overdue. This is the kind of thing that should not happen. We cannot, of course, overtake centuries in a matter of a few years but getting rid of some of these anomalies is another reason why I welcome this Bill.

Section 37 is one on which I would ask the Minister to think carefully, to listen to the comments from all sides and weigh up the balance, because there is a balance to be weighed in this regard. This is the section which is aimed at providing machinery to enable people dealing with small estates to obtain grants of probate or administration at low cost and this is a very laudable objective. Let me say as a lawyer I do not wish ever to adopt a Luddite approach to law reform. If it can be shown that reform of the law will improve the situation for the mass of the people and if, incidentally, the condition of the lawyer is being disimproved, this is too bad. It is one of the prices the lawyers must pay, and I would certainly never attempt to defend or oppose any proposed reform on the ground that it would interfere with the rights or the ability of any lawyer to earn a living. However, in this case I do think the Minister ought to consider whether what is proposed would not—apart from practical difficulties, and there are practical difficulties which I am sure will be pointed out to him on Committee Stage—result in less efficiency than the present system, and perhaps greater cost.

It is probably impossible to gauge any way accurately how much this provision will cost to administer or to gauge how much the same facilities being provided through the legal profession at present are costing. I do not know how close one can go to this but unless one can put forward a very strong case to show that the proposals will be an improvement on the present position by way of efficiency and expedition and by way of cost, then the present situation should be allowed to remain. The onus for changing the present law lies on——

Mr. Dillon

Presumably on the Minister who introduced the Bill.

Mr. Lenihan

That has been deleted.

Mr. Dillon

We are in a proper state of confusion now. The Parliamentary Secretary does not know what has been deleted.

Mr. Tully

It has not been deleted out of this print anyway.

Mr. Lenihan

Not yet. I mentioned it in my opening speech.

Mr. Dillon

I read the Minister's speech in which he said he would set up local probate offices and the Parliamentary Secretary is demurring to that.

Mr. Lenihan

No, he is not.

Mr. Colley

I am sorry. I did not hear the Minister's opening statement and I was not, therefore, aware of this.

Mr. Dillon

I do not blame the Parliamentary Secretary. The Minister is in a state of confusion.

Mr. Colley

I was about to say the Minister is proceeding with record speed——

Mr. Dillon

Not at all. He does not know what he is doing himself.

Mr. T. Lynch

Did he consult the Fianna Fáil Party about it?

Mr. Lenihan

We had a very useful meeting on it last week.

(Interruptions.)

An Ceann Comhairle

Order. The Parliamentary Secretary.

Mr. Dillon

Let us continue and try to get order out of chaos. A short period of consultation would clarify it.

Mr. Colley

Section 77 deals with the abolition of the necessity for both witnesses to a will to be present at the same time.

Mr. Dillon

Hear, hear.

Mr. Tully

Again, this is something on which a case can be made either way and the Minister will have to weigh up the arguments put forward.

Mr. Dillon

Might I suggest to the Parliamentary Secretary that he should ask the Minister is that still in the Bill.

Mr. Colley

I have done so.

Mr. Lenihan

I have a very open mind on that particular section.

Mr. Dillon

Ah!

Mr. Tully

Why not rewrite the Bill?

Mr. Colley

At one moment the Minister is being urged to have an open mind and, the next moment, when he says he has an open mind he is accused of slithering.

(Interruptions.)

An Ceann Comhairle

Order. I must insist on the Parliamentary Secretary being allowed to speak without interruption.

Mr. Colley

On this question of witnesses to a will——

Mr. Dillon

It is going. The Parliamentary Secretary need not worry any more. He has dropped it.

Mr. Colley

——as far as I know. This is a step in the right direction. There has not been difficulty in the past in obtaining two witnesses at the same time. Of course, my experience in that connection is almost exclusively urban. I am not aware of what the position is in rural areas. Perhaps there has been difficulty.

Mr. Dillon

None. It was just a daft idea.

Mr. Colley

Now, I must admit that if someone sets out to commit a fraud in this connection the existing provisions will not prevent him. Indeed, some very frightening frauds have been committed in connection with wills.

Mr. Dillon

Hear, hear.

Mr. Colley

I shall not deal with them here because people might only get ideas, but some very frightening frauds, quite unprincipled frauds, have been committed in connection with wills. Some ruthlessness, some lack of common decency seems to instigate people when it comes to wills. Perhaps it has some psychological basis.

Mr. Dillon

Scripture says the love of money is the root of all evil.

An Ceann Comhairle

Might the Parliamentary Secretary be given a chance to speak now?

Mr. Dillon

Oh, yes. It was a helpful intervention.

Major de Valera

It is not the full moon yet.

Mr. Dillon

And the Deputy is not going to speak, I take it.

Mr. Colley

Despite my doubts about the necessity for the new provisions, I must admit that the existing provisions are not any real safeguard against people who set out to commit a fraud in connection with a will. We know that from experience. That is why I say the Minister will hear many views expressed pro and con and he will have to weigh up the feeling of the House. It is, I suppose, a technical point more than anything else but there may be people in the House who can contribute something of substance. I freely admit I am not contributing anything of substance on this particular point, but there may be some who will and, if they do, I have no doubt the Minister will take their views into account.

I want to give a special welcome to section 84 which provides that a will is not revoked by a subsequent marriage if the will has been made in contemplation of that marriage. This provision is long overdue. I have always considered it a grave injustice that a will should be revoked in such circumstances. On the one hand, the testator was obliged to make another will if he got married again but, in many cases, the testator was not aware of that provision and did not make another will. Very often injustice was committed as a result. For that reason I welcome this provision. It represents a considerable advance.

I also welcome the provision of section 89 providing that extrinsic evidence will be admissible in the construction of a will. The existing law has always been unsatisfactory and unrealistic in this regard. It seems to have been framed in a foolish endeavour to be consistent. Arguments could be made for excluding extrinsic evidence in regard to certain matters, such as the construction of a contract or an Act of Parliament, but these are very different matters from a will and a will should not be dealt with on this allegedly consistent basis because it just does not work out in practice. The fact that there is a number of exceptions under the present law to this rule proves that the existing law is not geared to the requirements of the situation. For that reason the reform proposed in section 89 is more than welcome.

I also want to welcome Part VIII of the Bill which will enable us to adhere to the Hague Convention on the conflict of laws relating to the form of testamentary dispositions. If we can adhere to this Convention that in itself is a very good thing because it will mean that our law will conform to that of a number of European countries, or theirs will conform to ours, whichever way you like to put it. It is the recognition of our common heritage in Europe. It is bringing us into line with twentieth century Europe, which is where we should be. Apart from the inherent advantage in this it is also a considerable advantage from the point of view of the reputation of this country in Europe because it will be seen that we are taking active steps to ensure adherence to these Conventions and to the enabling of the European concept to be applied as between us and other European countries in a way which is more obvious in relation to law than it is in any other field. The scope for cooperation is wider in the field of law than anywhere else. I am very glad to say that under this Bill we are taking another step forward in this regard.

The amendments to the original Bill which have been announced by the Minister are, in my opinion, a very considerable improvement. I am not sure whether the working out of their actual details will result in further amendments coming before the House, but I have no doubt the Minister will be prepared to consider any amendments put forward. He has made clear what the line of the amendments will be. It seems to me the principle he is following is an excellent one, because he is dealing with one of the problems with which it was intended to deal, that is, the inofficious will. He is providing sufficient flexibility to enable the average Irish testator to make his will in the way he wants to, and in the way he always made it. Some play has been made on what has happened in regard to this Bill, but I do not have to put forward arguments to show that it is really a Committee Stage Bill. No one could have made that case better than Deputy Corish here tonight. He made it perfectly clear that this is a genuine non-political, non-Party, Committee Stage Bill, and I could not agree with him more. I do not think there is any real advantage, political or otherwise, to be gained by anyone who tries to suggest anything else.

As originally circulated, the Bill was accompanied by an invitation from the then Minister to all interested persons to put forward their views. There was a clear recognition of the fact that this was a Bill which would intimately affect most of the people of the country, that it was non-Party, non-political, and that the widest possible measure of agreement in the country and the House was necessary, if the Bill were to be effective. That was recognised by the then Minister in the statement he made. Like many other people, I disapproved of some of the proposals in the Bill, but I was not in the least worried about the outcome. I had no fear that the Minister would attempt to have everything follow his line, or that there would be inflexibility. He made it perfectly clear that he was inviting suggestions, comments and constructive criticism. Some months ago I appeared on a certain television programme on which these questions were put to me, and I made the very same observations. I ended by saying I had no doubt that when Dáil Éireann and Seanad Éireann were finished with the Bill, it would be one for which there would be the widest possible acceptance in the country. I had no doubt about that then, and I have no doubt about it now.

It seems good to me in dealing with a Bill of this nature to adopt the procedure—I do not know whether it is new; I am not long enough in politics to know whether it is a new approach but I welcome it as it seems to me to be democracy in action— of getting the views of people all over the country, accepting them when they make sense, and putting down amendments. I grant the Fine Gael Party that there is a grave temptation to try to make something of it. They succumbed to that temptation, but we do not hold it against them. Perhaps if we were in their circumstances we might have succumbed too, but that does not mean that we can forget the actual facts of the situation. It does not mean that we must not make clear what has happened, that is, that we have seen democracy in action in regard to the Succession Bill. That is something of which we can all be proud, and perhaps some time later when this Bill is an Act and Fine Gael have stopped trying to milk it for whatever capital they think is in it, we will see Deputy Dillon holding up this procedure as an example of how Irish democracy can work. When he does I hope I will be able to say: "Hear, hear."

In conclusion, I want to pay tribute to the former Minister for Justice, now Minister for Agriculture. I do not want to wander from the matter before us except to refer to the very considerable programme of law reform which he brought before the House, and the very energetic way he dealt with it. I regard this Bill as a very considerable social advance because it contains a recognition of the position of a wife, which recognition I think has not been granted in our legislation heretofore— recognition of the wife as a partner who contributes to the marriage which is a partnership equally with the husband, and of her position as a consequence. That is a very considerable social advance, in my opinion, and I want to pay tribute to the former Minister for Justice for having incorporated that whole basic approach in this Succession Bill.

Mr. Dillon

Deputy Colley must begin to learn that he is a junior member of the Government and that it is not good enough for him to get up here and say the Minister for Justice with whom he is serving is a bit daft. That does not work. The Government come before Dáil Éireann as a unit, or they ought to, and not as a chaotic mess as they in fact are.

Mr. Lenihan

If the Deputy would do his homework, he would see that no mess is involved.

Mr. Dillon

The words I used were: "a chaotic mess as they in fact are". Those who are not leaving the sinking ship are steering it in circles. The fact is that this Minister is erecting a smoke-screen to cover the retreat of his predecessor.

The history of this is simple. A motion was put down in this House about two years ago in the names of Deputy M. J. O'Higgins and Deputy Ryan pointing out that the law relating to wills required some degree of reform in that there existed a possibility of capricious wills, depriving widows or dependent children of some substance under the testamentary dispositions of the husbands. That was accepted by the House. There was no division. I would not deal any further with the background if Deputy Colley had not indulged in the customary backbencher gambit of saying: "Molaim an tAire thar cheann an méid oibre a chuir sé sa Bhille seo".

I am so sick of listening to Deputies of the Fianna Fáil Party who know no more Irish than that, saying that, that I get weary when I hear the Parliamentary Secretary who speaks Irish very well translating that tag into English, and saying he must pay tribute to the former Minister for Justice for his marvellous programme of law reform. The plain fact is that there was set up in the Department of Justice a small group of civil servants, under one civil servant who has a yen for this kind of work, and a series of perfectly obvious Bills were presented to the Minister for Justice so excellently drafted that they were brought before the House, gave rise to no controversy, and passed rapidly into law.

Then he got lazy. When the same Committee produced this Bill, they submitted it to him and he was too lazy to read it. He was too lazy to do his homework. He went off to the Government with the Bill and they were also too lazy to do their homework. This Bill was issued on the authority of an Irish Government, none of the members of which knew what it contained. That is a grave situation. I could have understood it if the former Minister for Justice had said that this was a complex aspect of the law, that this was a long and detailed Bill and that these were the views of the Government on it, that he would like these views to be published as a White Paper with tentative suggestions for law reform, that he would submit these views to the Incorporated Law Society, the Bar Council, the NFA, the Irish Countrywomen's Association and anybody else who asked for a copy, that he would invite all and sundry to send him their views on them and, that done, he would review the whole question and see if the White Paper gave rise to any serious malaise in the country, or any serious objection.

Mr. Lenihan

That was done in January, 1962.

Mr. Dillon

This Bill we have is what should have gone out as a White Paper. If it had, then coherent proposals could have been made to the Government for the rectification of what ought to be a truly non-controversial Bill. Dáil Éireann is now being asked to discuss the principle of a Bill when the Minister responsible for it says that he repudiates it and his Parliamentary Secretary says that he has not repudiated it half enough. It is a most undignified situation in which Dáil Éireann finds itself and I defy any Deputy intelligently to discuss the Bill as we have it now. We have in the Minister's White Paper a whole series of new amendments. He has announced in his speech four additional amendments and the Parliamentary Secretary has secured assent from him for two further amendments.

Mr. Lenihan

And if you have any constructive amendments, we will accept them from you also.

Mr. Dillon

Now I am expected to discuss the principles of a Government Bill put before the House in this way. If that is not chaotic confusion, as Deputy Seán Flanagan said to another Minister recently, I do not know what is. I have a certain sympathy with the present Minister because he is being used as a kind of a sheet with which to cover the Minister for Agriculture and his golden eggs but this is a bad thing for the House. I invite the Minister to do the sensible thing, that is, to say that, as the Bill obviously needs extensive amendment and as it is obvious that what he first had in mind does not meet the wishes of the majority of the people, he is prepared to withdraw the Bill. He should say that he would make whatever amendments are necessary and then resubmit the Bill.

Mr. Lenihan

We can do that on Committee Stage.

Mr. Dillon

We can do it if we go through the farce of a Committee Stage discussion on the Minister's amendments and then resubmit the Bill. Why go on with this codology?

Mr. Lenihan

It is not codology.

Mr. Dillon

Why go on pretending that the Succession Bill you introduced is in principle the Succession Bill you want the House to pass? It is not.

Mr. Lenihan

It is.

Mr. Dillon

All the fundamental parts are gone. The machinery sections, which are not controversial, remain, but Parts IX and X of the Bill are blown out of the ground. It has now been announced that the important section dealing with the making of wills is to be dropped. The Parliamentary Secretary came in here and he did not know the Minister's proposals; he has now dropped the practice which has been in operation for years in this country in which a small estate could be administered by a customs officer.

Mr. Tully

The non-existent customs officer.

Mr. Dillon

We had one in Ballaghaderreen until they took him away. In some parts of the country, they are more accessible than in others. That system was in operation for years, although in some places people did not avail of it very much. However, it was availed of in the case of some small estates. The Minister has now introduced a new principle, that is, to introduce local probate registries approximately on a county basis and the county registrars will have a wide discretion to help and guide persons in this procedure. But that is not in the Bill. It was announced so casually that the Parliamentary Secretary, who was so anxious to help, told the Minister that this was something that ought to be looked into, only to be told that it was no longer proposed. I like the Parliamentary Secretary. I think he is a good Deputy and all of us in the early stages of our official careers have put a foot wrong but it is not right that we should find two members of the one Government contradicting each other on the Front Bench. That is the fault of the Minister for Justice in trying to push through the House a Bill in such a complex manner. If we take the original Bill and superimpose on it the White Paper, the Minister's speech today and the amendments he has indicated he intends to make, you may get some kind of mosaic of what may be in the Minister's mind but that is not the Bill.

I think Parliament is a system which works well, a system to which Governments, Ministers and Deputies should show deference and I do not think that Parliament will be promoted in the eyes of the people as a reasonable and sensible legislative system as a result of the manner in which this Bill has been presented.

Mr. Lenihan

We will have full discussion on it on Committee Stage.

Mr. Dillon

That is all cod. It may be good enough to fool some of those who sit behind the Minister but it is not good enough to fool those of us who have some regard for parliamentary procedure.

Mr. Colley

Parliamentary procedure is not as inflexible as all that.

Mr. Lenihan

Does the Deputy remember when he brought in 100 amendments on the Committee Stage of a Bill?

Mr. Dillon

That is all very well but what the Minister has done is to alter the principle underlying the Bill. He has boasted of that. When you bring before the House any Bill, the sensible procedure is to amend that Bill in the Committee Stage, if it can be amended.

Mr. Lenihan

That is what I am doing.

Mr. Dillon

It is not right to announce in advance that you have abandoned the principles of the Bill but you do not propose to withdraw it. You should submit it to the House in some form which the House can read and understand. The Minister knows that just as well as I do. I will record then a very emphatic proposal against this House being asked to discuss the principles of a Bill which is in substance withdrawn. I agree with Deputy Colley, the Parliamentary Secretary. I agree that the proposal to abolish the ceremonial procedure in the making of wills is a retrograde and an improvident proposal.

There are very many wills of a fraudulent character but not all wills are so. There is no doubt whatever that the solemn procedure of a testator signing his will in the presence of two witnesses who sign it in the presence of each other does lend a certain solemnity to the procedure which removes or, certainly, mitigates, the temptation to people, actuated by avarice, to make false wills or to falsify them.

I can see the argument proceeding on both sides of this case but as yet I have not been able to think of any persuasive argument which could be advanced for abolishing the old system and substituting the relatively easy procedure which was envisaged in the first draft of this Bill. I believe the Minister himself now recognises that in seeking to honour the principle of protecting widows and dependent children from capricious wills he has gone too far. He would like to lay down a whole set of rigid rules controlling the disposition of property. It is quite intolerable in a way in our social circumstances but that does not close the eyes of many of us to the fact that capricious wills can be a real and tragic disaster for a family.

I remember in my own personal experience a perfectly rational man, whom I could not imagine making the type of will he made, in which he left all his property to his children and nothing to his wife at all. She was confident that she had the wherewithal to rear her family but suddenly found she had not the price of a postage stamp. All her property was in trust for the benefit of the children. I do not know whether that was due to the incompetence of a solicitor or to the man himself. That is something which is hard to understand.

We all know of cases in which a man takes up with a woman and leaves his property to her. He leaves his wife and children unprovided for. Those are very rare cases but they are sufficiently frequent, I think, to require provision to be made to prevent their recurrence. I believe the Minister for Justice should not have gone to the extreme which is proposed in Part IV of this Bill. Mind you, the Fianna Fáil Party are very ready to pour buckets of whitewash over themselves and weep crocodile tears for what they have done. The statement of the Minister for Justice, prior to his migration to the Department of Agriculture, gave us to understand that he seemed to be pretty rigid in his view that this was a great thing he was going to leave to posterity whereby to judge him. It is gratifying that the attitude excited in the country amongst responsible people everywhere has been responsible for the attitude which the present Minister for Justice is now adopting.

I want to make this matter clear. There is a tendency developing in this House to assume that this is a lawyers' Bill. It is not a lawyers' Bill. It is a Bill which affects the daily life of individual citizens, great and small, rich and poor. I am not really deeply interested in the convenience of the solicitors. They are well paid to take the necessary steps to carry out their clients' instructions. Mind you, I hope the Labour Party will not fall into the error of saying this is a lawyers' Bill and that we should send it to a Special Committee.

Mr. Tully

It is not the lawyers who do the work of the Special Committee.

Mr. Dillon

If there is a Special Committee of this House set up to consider this Bill, it is the lawyers' voice which will be heard the loudest. That is a very natural thing.

Mr. Lenihan

Deputy Dillon is right. This is the place to have a discussion on this Bill.

Mr. Dillon

It is a very dangerous proposal to send this Bill upstairs to a Special Committee because it is not an easy Bill to evaluate. It is a Bill in which technicians can very quickly make their views prevail if there are not sufficient ordinary men and women to say: "We do not give a fiddle-de-dee for these doctrines which you declare sacrosanct. We think it is bad to do this and we do not want to have it done." Therefore, I cannot share the views of the Leader of the Labour Party that this is a Bill eminently suited for a Special Committee. It is quite true there are a number of technical Bills dealing with drainage, local government and other technical matters of that nature which can very often, with advantage, be sent to a Special Committee. This is a Bill relating to the making of wills in which the least important party involved is the lawyer who drafts the wills. The testators and beneficiaries are much more important and their voices ought to be heard with respect when we come to consider the details of this Bill.

Mr. Lenihan

Hear, hear.

Mr. Dillon

I am sorry Deputy Colley, the Parliamentary Secretary, has gone because he had fears for the justification and evaluation of the distinction between realty and personalty. He told us a story of a man who bought his holding on a fee simple and found half his kitchen went to his legal heirs and the other half was distributed, as to one-third to the widow and two-thirds to the remaining children. That reminds me of when the Government bought a site in Nigeria for £65,000 and then discovered it was on shifting sand and you could not build anything. The dilemma of that gentleman was due to the fact that he did not have his solicitor draw up the will in a proper manner and not have one-third fee simple, one-third leasehold. I have known of a case in which people thought they were buying fee simple and discovered there were intolerable leases. Those cases take place in the best regulated households but they do not represent the law. People should know what they want to buy and should buy what they intend to buy. If they build a house they are not building a house with theories attaching thereto nor should they build a house on shifting sand. Only Fianna Fáil Governments and improvident testators do that kind of thing.

In regard to section 84, I want to invite the House to consider what I have been describing before as Chesterton's law. I do not know the origin of the theory that if you make a will and subsequently get married, the solicitor must chase you on your honeymoon all over the country to sign your will again before he lets you out of his sight. It has happened to one or other of us. There is always something grisly in seeing an unfortunate bridegroom re-executing his will after having signed the marriage register.

I do not know the history of that. I do not know how it grew up but before we casually abolish it by a short section of the Will Act as it is, I would like to hear that history. G.K. Chesterton once said our society is full of strange archaic observances which one is tempted at first glance to sweep away as being incompetent, but never yield to that temptation, he said, until you first find out what made our forefathers ask for that observance. It was because they were not fools, and they erected that observance for allaying some evil. They recognised the evil that then existed. They erected the observance to allay it and the observance has been so successful that we have forgotten what the evil was. Have we any reason to be assured that, if we sweep away what looks like an archaic observance, this evil will not re-manifest itself and we may not have the intelligence our grandfathers and great-grandfathers had to devise the appropriate remedy?

I would gladly concede that in the Statute Book there are archaicisms which might with advantage be removed today but somebody for some reason must have made this odd provision that a will made prior to marriage ceases to be vaid after marriage. It is hard to see the obvious explanation of it. Since it was done, there must be some reason for it. Some abuse must have existed which this was designed to correct. If we know the abuse and if we are now satisfied that that abuse could no longer arise in the society in which we live, with superior methods of communication and superior methods of recording and so on, well and good, we could sweep it away. But I should like to be told why it was first instituted, and why should it now be decided to sweep it away before accepting blindly that it should be so disposed of.

I should like to be in a position to discuss this Bill constructively, make suggestions and ask and raise queries without trying to obstruct the progress of the Bill through the House.

Mr. Lenihan

Hear, hear.

Mr. Dillon

Naturally that is the rational approach of any rational Deputy to legislation of this kind. The Minister's whole attitude to this business has made that approach as difficult as it is humanly possible to make it.

Mr. Lenihan

If the Deputy did his homework, he would know it cannot be done.

Mr. Dillon

I have done my homework but I do not propose to do the Minister's homework. He is paid £4,500 a year for it.

Mr. Lenihan

I have done it. We can have a sensible discussion on it.

Mr. Dillon

Neither the Minister's predecessor nor himself has done it and it is a pure combination of laziness and a desire to preserve political face that induces the Minister to ask the House to consider the principles of a Bill which he himself and his colleagues are repudiating. If we had before us a new Bill, we could deal with this in a rational way. What will happen is that when the Committee Stage comes, all the Minister's amendments will be inserted into the Bill. Then it will be re-printed and re-distributed and then we will proceed to re-commit, I suppose.

Mr. Lenihan

Yes.

Mr. Dillon

We will have another stage for discussion. Then we will have a Report Stage. We are just introducing an extra Stage. Why? To preserve the pretence that the Minister and his predecessor have done their job. However, let them not say to me: "Do your own homework".

Mr. Lenihan

We can have a discussion on my amendments on Committee Stage. Ministerial amendments are a well-known feature of the Parliamentary process.

Mr. Dillon

I do not know that it is expedient to pursue some of the topics raised by Deputy Colley but he did elect to go through one or two sections of the Bill. Section 89 says:

Extrinsic evidence shall be admissible to assist in the construction of, or to explain any contradiction in, a will.

That would seem superficially a most reasonable proposal. Ninety-nine per cent of average men would say that this is a most laudable reform and is long overdue. I would ask them to pause and consider. There has grown up over the years a pretty comprehensive rule of interpretation applicable to wills, one being that they are taken to speak from the date of the testator's death. There are a variety of other technical rules, all well known to competent lawyers. The average testator goes in to a competent lawyer and he explains what he wants done. This is cast by a competent lawyer into the language long accepted in the interpretation of wills.

That competent lawyer proceeds to give expression to the testator's intention in the language which has been repeatedly tested in court. Take any member of this House who sits down with a sheet of notepaper and writes on that sheet of notepaper in language he believes to be as clear as crystal what he wants done and let him get it witnessed. The correct procedure is adopted to make it a valid will but God knows what a High Court judge will declare that to mean by the time he has had access to extrinsic evidence.

That is not all. We know, as regards probate, any High Court judge in this country can set himself the task of determining by the examination of extrinsic evidence what a testator meant. I venture to say if you took the whole High Court bench of this country, you would not find two judges of that bench who would give the same meaning to the same will after they heard extrinsic evidence. I think that in matters of this kind the nearer you can get to certainty and to uniformity the better: the nearer we can reach the point of saying that no matter what judge is sitting on what bench the meaning of the words used in this instrument has long been interpreted on good advice, the better. Here is something full of danger.

I am open to conviction. Maybe I am wrong, but I sound this note of warning. Most ordinary, rational people say this is a most obvious reform. We have heard of the most extraordinary interpretations being given to wills and of wills which appear to us perfectly clearly to say one thing being held by the courts to say another. We have to bear in mind that if the testator is made to say in the language of wills something other than he meant, that is due to the incompetence of the solicitor he had and not to the form of the language to which the courts have attached certain specific meanings.

If we once depart from that—there are as many interpretations of wills as there are judges on the Bench—it will create a queer situation. You can find two wills in virtual identical terminology. In Court No. 1 the judge declares it to mean one thing and in Court No. 4 the judge declares it the direct opposite. Both have found themselves entitled to have acceptance of evidence. I think I can sum it up by saying that the main dictum in the matter of wills is to approach as nearly as possible to objective truth.

Any more approximation to the objective truth than the evidence of human beings I think it would be hard to find. It is the truth as the witness saw it and we can all see a different truth, honestly, on the same set of facts. In regard to section 89, I would enter a caveat: come as near to objective truth as possible. Extrinsic evidence can lead us down the strangest paths. Deputy Colley, the Parliamentary Secretary, turned to section 103 which deals with the making of wills on board ships or aircraft. Every time I hear the Minister for Justice having the impudence to tell me to do my home work! I have done my home work.

Mr. Lenihan

He thinks.

Mr. Dillon

I must say I have not done as much as I should have liked because I have been too busy. Deputy M.J. O'Higgins has quite a knowledge of the Department of Justice and of his competence I have not the slightest doubt.

Mr. Lenihan

He displayed great competence today.

Mr. Dillon

He would make a good Minister for Justice.

Mr. Lenihan

Does the Deputy believe in the competence of the Irish people?

Mr. Dillon

I still believe the Irish people have the ability to make mistakes, and so long as they go on electing Fianna Fáil, apparently they have that right. I have confidence that they will not only continue to have that right but that they will exercise it as well. Let us turn to section 103. It says:

A testamentary disposition made on board a vessel or aircraft shall also be valid as regards form if its form complies with the internal law of the place with which, having regard to its registration (if any) and any other relevant circumstances, the vessel or aircraft may be taken to have had the most real connexion.

What do you make of that? What the heck does that mean?

Major de Valera

What it says.

Mr. Dillon

I should like the Deputy to parse it. What do you understand by "any other relevant circumstances, the vessel or aircraft may be taken to have had the most real connexion."? What test do you apply—whence the vessel sailed, the nationality of the master, the ownership, the residence of the owners of the vessel? If you once depart from the principle of recognising a vessel by its place of registration and the flag it flies and substitute for it "the place with which, having regard to its registration (if any) and any other relevant circumstances"——

Mr. Lenihan

It is a legal phrase.

Mr. Dillon

I do not know whether it is a legal phrase or not. Can the Minister not imagine that giving rise to a tumult of legislation?

Mr. Lenihan

Not really.

Mr. Dillon

There is a simple test. If people want to make wills on ships —God only knows why they should— can they not go down to the rear of the ship, pick up the flag and say: "Do I want my will to be interpreted according to the laws of Liberia or Panama, or, if I do not, shall I wait until I get home to Cobh?"

Mr. M.E. Dockrell

Or Greece, or anywhere else, with no reference to nationality.

Mr. Dillon

The Minister may have some explanation. It is not a very unlikely contingency. It seems a queer provision when the object of this legislation is simply to find a law relating to wills. Is it not perfectly simple, or is there an implied injustice in saying: "If you want to make a will on board ship go down to the stern and look at the flag and if you do not like its design, wait until you reach terra firma”?

Major de Valera

It might be a flag of convenience.

Mr. Dillon

Suppose it is Liberian, a fellow says: "That is a ship Liberia borrowed the money from the Irish Government to buy from a Dutchman". Is it a Dutch, an Irish or a Liberian ship?

Mr. Lenihan

That is the purpose of the phrase "real connexion".

Mr. Dillon

There is a ship cruising across the Atlantic. It was built in Cobh by a Dutch company which was paid £350,000 for building it, though it only got £150,000 for building it. It is registered in Liberia. The Liberians borrowed some millions from us to buy from us the ship we paid the Dutchman £150,000 for building, and part of the ship is now owned by the Dutchman, who does not own the company which built the ship—it only bears his name—and part of the ship is owned by the Liberian Government. Neither of them paid a penny for it.

Mr. Corry

Whom will you will it to?

Mr. Dillon

"... and any other relevant circumstances, the vessel or aircraft may be taken to have had the most real connexion". I am damned if I know whether that ship has the most connection with the wholly-owned subsidiary of the Industrial Credit Company. Mind you, the Industrial Credit Company did not provide the money, but a wholly-owned subsidiary of the Industrial Credit Company did and the Industrial Credit Company presumably got the money from the Irish Government. So you have the Liberian, the Dutchman, the Dutch company, the wholly-owned subsidiary of the Industrial Credit Company, the Industrial Credit Company and the Liberian flag to consider.

Major de Valera

Now you know why that phrase has to be used.

Mr. Dillon

I suggest that if—and this is highly probable—by this time the ship is flying the Panamanian flag, instead of going into this elaborate inquisition as to what happened, how it was built, how it was financed, who bought it and so on, the simple thing is to say to the intending testator: "Look, under our law, if you want to make a will, look at the stern of the ship and if it is flying the flag of Panama, then it will be determined under the law as Panamanian." Whatever flag it is flying indicates its port of registration and for the purpose of this section the nationality is so determined.

Mr. M.E. Dockrell

Surely it would be easier to say the man is an Irishman?

Mr. Lenihan

That is in the previous section.

Mr. Coughlan

The thing to do is to send it to Bord na gCon and find out the pedigree.

Mr. Dillon

This is a matter for consideration if we intend a simplification of the law.

Mr. Lenihan

It must be read in conjunction with the previous section.

Mr. Dillon

We should bear in mind that the purpose is the simplification of the law in addition to its codification and do not let us ramble into the unnecessary thickets of legal terminology if that can be avoided by a simple expedient which imposes no material hardship on any intending testator.

I deprecate most strongly the procedure adopted in relation to this Bill. I still cherish the hope that the Minister may see the force of the contention I have advanced. The proper course is to produce a new Bill. If he does, I agree with other Deputies that there should not arise in connection with the consideration of such a Bill any matter about which there would be any political contention. I recognise what I imagine Deputies on all sides recognise, that there is scope for honest difference of opinion as to what is the best machinery to provide against the rare capricious will which would do cruel injustice to a widow or dependent children. I believe between our joint wisdom we can find a workable and equitable solution to that.

Some people will favour strongly the British device which appears to have worked well, that is if the will appears to be capricious, it can be referred by the widow and the children to the High Court for determination as to what would be equitable and just. Others will take the view that there should be, in the event of a will being deemed to be capricious, some automatic fractionation of the estate, each fraction appropriated to a different section of the family. That is a matter we could argue rationally and intelligently.

Frankly, I have found myself in complete sympathy with both sides. In theory, I would favour the reference to the High Court judge but when you come to examine that in practice and realise that you may get seven different interpretations from seven different judges——

Mr. Lenihan

That is what happened in Britain.

Mr. Dillon

——you may find yourself in a very embarrassing situation. I do not know that the law of testacy has not operated fairly equitably. There has been the one-third to the widow and two-thirds to the children but I think it is far too rigid when you are dealing with the general testamentary capacity of a rational testator. What I am groping towards is some standard which would declare a will to be capricious whereupon some mandatory minimal provision would become operative for the spouse and the dependent children. But I want to sound one note of warning. Take the case of the parent who is deliberately deciding not to make provision for a particular child. Now, he may have made ample provision during his life and made up his mind that, having done the best he could for that child, the child, the boy or girl, is incorrigible and he intends to do no more. Having given most careful thought to the whole business, he has resolved to declare that he is cutting the child off with a shilling. He may have said to his wife: "you will have to provide for this boy now and see that he does not meet with disaster as he is being bereft of property; I am not going to give him any property because it will be dissipated." We are asking that he state in the will the grounds——

Mr. Lenihan

Not in the amendments.

Mr. Dillon

I have studied the amendments——

Mr. Lenihan

That is out; that has been dealt with.

Mr. Dillon

That is one of the difficulties in which I find myself. Some amendments may have escaped my notice. Originally when I read the Bill we were asking the testator to declare as a matter of public record whatever family misfortune——

Mr. Lenihan

That is gone.

Mr. Dillon

That is a very proper reform and it is evidence of the grave lack of thought on the part of a responsible Minister ever to have allowed it to be incorporated in the Bill. It is his job. It is the Minister's job to comb out the suggestions submitted by the civil servants attached to his Department who do their part of the job which is to put up ideas to him. It is his duty as political head of the Department to interpret what is good and to accept or reject and then inform the Government that he was urged by his experts to put this view forward but he decided not to bring it to the Government because he did not approve of it. This amendment is desirable but the fact that the proposal was first made without thinking and that the situation was created for a parent who, because of the failure of his child, cuts him off, that he was required to proclaim the reasons before the world is evidence of the very careless drafting of the Succession Bill as we first received it.

We will put our amendment to the House because we think the process of legislating this legislation can best be served by a new Bill which can then be calmly considered in Committee, if necessary re-committed, and treated as it ought to be treated, as a wholly noncontroversial piece of legislation. In its present form it certainly is not that. It is not only controversial but incomprehensible. It reflects gravely——

Mr. Lenihan

Not if the Deputy read the explanatory memorandum. The Deputy has not done his homework.

Mr. Dillon

——gravely on the diligence and competence of the ex-Minister for Justice. I pass no immediate stricture on the present Minister for Justice but he should be warned by the fact that his own junior colleague whom, I think, he will agree with me is an honest man, and a diligent Deputy, found himself, in discussing the Bill, in a dilemma not of his making but of the Minister's. It is a dilemma in which every Deputy who takes an intelligent interest in this Bill will find himself unless the Minister presents a new Bill. The end result may be the same but if the procedure which the Minister, in this exercise of face-saving, wishes to pursue for his Government, if we have a Committee Stage in which the Ministerial amendments are incorporated, then we ought thereafter to have a Recommittal and a Report Stage.

Mr. Lenihan

Yes; we will have the full picture on the Committee Stage.

Mr. Dillon

Then we want to re-commit it, that is, a discussion on the Committee Stage and on what is ordinarily the Report Stage and then thereafter the Report Stage—a Recommittal. Is that possible, a Leas-Cheann Comhairle? I think it is.

Mr. Lenihan

I think we should go through the fullest possible parliamentary procedure.

An Leas-Cheann Comhairle

It has been done.

Mr. Dillon

If we take that course, some of the damage can be repaired but let us all be resolved that this silly mess will not be taken as a precedent.

Major de Valera

Why a Recommittal?

Mr. Dillon

To get us out of the mess in which we now are.

Mr. Tully

Have we reached a Committee Stage?

Mr. Dillon

Poor Deputy Tully does not know where we are.

Mr. Tully

Deputy Dillon and Deputy de Valera are discussing the sections of the Bill across the floor of the House.

Mr. Dillon

No.

Mr. Tully

They are.

Mr. M.E. Dockrell

The Minister said it is a Committee Stage Bill. That does not mean it could be discussed——

Mr. Dillon

The proposal is that this Bill that nobody wants, either the Minister or anybody else, and which is the bane of us so that we have to go through the farce of taking a decision on the Second Stage, will then go into Committee——

Major de Valera

With the Ministerial amendments.

Mr. Dillon

No. The Ministerial amendments will then be inserted in this Bill in Committee.

Major de Valera

Can we not short-circuit it?

Mr. Dillon

I have been trying to persuade the Minister to do that. Now he has Deputy de Valera addled. We should throw this Bill on the waste heap and bring in a new Bill.

Major de Valera

No. Can we not take the Ministerial amendments quickly into the Bill, get the thing complete and then have the real Committee?

Mr. Dillon

You must have a Report Stage afterwards. You must have two Committee Stages and a Report Stage. This is all to save the face of the Minister for Justice. All that could be avoided——

Mr. Lenihan

It does not require any magnificent exercise of comprehension to read the Ministerial amendments side by side with the Bill.

Mr. Dillon

You have Deputy de Valera, Deputy Tully, Deputy Coughlan and me addled—the four of us have been members of this House for quite some time—and we are sustained by Deputy M.E. Dockrell. I do not know if he is any clearer than we are on this matter.

Mr. M.E. Dockrell

He is not addled but he is not as clear on the matter as he would like to be.

Mr. Dillon

This procedure reflects badly on the Minister and on his supporters. We will put our amendment to the House. If the Minister wants to persist, he has the majority for the time being to do so. But, in fact, he cannot initiate a proper discussion of this Bill until a farcical Committee Stage which the Minister thrusts upon us has been put through. It is only when we go out of that Committee Stage that we can start a proper examination of the Bill.

Mr. Lenihan

A very constructive——

Mr. Dillon

Putting in the Ministerial amendments——

Mr. Lenihan

And a discussion on them.

Mr. Dillon

It is on the recommittal that we discuss them and further amendments will have to be presented on the Report Stage. However, we shall deal with that situation and extricate the Minister from his own mess as best we can. So long as that document constitutes the basis of our discussions, we shall be in a continual sea of mystification and frustration. If the Minister really wanted a constructive approach to law reform, he would have a new Bill. He could have avoided all this to-do today if he had come in at 3 o'clock and said: "We might as well withdraw the Bill. If the House will indulge me, I will present a new Bill on Tuesday next," and we would have got on with the job.

Mr. Lenihan

The Deputy has not read a single memorandum circulated with the Bill, obviously. The whole thing is quite plain. Even the members of his own Front Bench demonstrated that today by making most constructive speeches on the Bill.

Mr. Dillon

It is as plain as a pikestaff that this is a futile attempt to cover up the incompetence and the lack of duty of the present Minister's predecessor. He was too lazy to do his work. That is why we are faced with the situation we are confronted with today. I hope that in his new sphere of activity he will show a higher diligence and not leave it to the Raheny hens to salvage him by laying golden eggs.

Mr. Tully

It is rather a pity, for a different reason from that which Deputy Dillon puts forward, that the Bill was not introduced next week rather than today because I have a feeling that the battle which is being fought in Galway is having its echoes in this House.

Mr. Dillon

None whatever.

Mr. Tully

For that reason an approach is being made to the Bill from both sides of the House which causes me to think that it would be much better if the discussion did not take place today.

Mr. Lenihan

Not by me.

Mr. Tully

Forty pages are a bit much, I think the Minister will agree.

Mr. Lenihan

Most reasonable.

Mr. Tully

The whole question of whether or not the Bill is the type of Bill which should have been introduced is one which will be debated on the Committee Stage. Again, it is rather a pity that the Bill, the second long Bill introduced in a short time in this House, was one which, no sooner had it been introduced, than Ministerial amendments started to pour in. I grant that there has been a change of Ministers and that, I suppose, has produced a change of attitude to the Bill. However, we have had the Land Bill here for months on end. Eventually we got through the Committee Stage but at the last minute there came the really important motion in relation to the Land Bill in the form of an amendment. Will the same happen now in six months' time? When this Bill has almost completed the Committee Stage, will the Minister get a brainwave and introduce something which will change the whole complexion of the Bill?

As everybody seems to be agreed that this Bill is one which should have no political implications, is it not a pity that everybody here will approach it from a political point of view? Therefore we echo what Deputy Corish said earlier. Why can the Bill not be submitted to a Select Committee— because eventually it will come back here? I do not agree with the suggestion that the lawyers in the various Parties will be shouting in the Committee——

Mr. Dillon

They will talk the leg off the Deputy and vote him down.

Mr. Tully

According to what Deputy Dillon said tonight——

Mr. Lenihan

He is right, for once, on this.

Mr. Tully

——it is the interpretation of the sections of the Bill that will count. Apparently the lawyers will give the correct interpretation of it——

Mr. M.E. Dockrell

No.

Mr. Tully

It was said that they must have a legal interpretation which will give the true meaning of the Bill. If that is so, surely the lawyers who happen to be members of this House should be able to give a lot of assistance in passing, including Deputy Dillon himself?

Mr. Corry

A Bill that will keep them idle?

Mr. Tully

I am sorry to see that Deputy Corry has rested from the battle tonight. Otherwise we should not have the pleasure of hearing his sweet voice. Quite a number of sections in the Bill commend themselves to everybody but there are a number which at present seem to be incomprehensible to most people. People will agree that the law in this country which allows any person to disown, as far as the division of his estate is concerned, the closest members of his family—maybe for a good reason or maybe for no reason at all—should be amended. Most civilised countries have done this years ago. That portion of the Bill seems to be quite good. How the division is to take place is something we should be able to debate on Committee Stage and reach a final conclusion on.

I hope the Minister does not retain the section which proposes that the £500 be raised to £2,000 in the case of small estates which can be administered without going to law. At present that administration is carried out by Customs and Exise officers, but it is almost non-existent because it is hard to find them. I hope the Minister will appoint somebody who can be approached more easily for the purpose of having this done.

Mr. Lenihan

We will have no limit now. If he wants to, he can go in himself to the county registrar.

Mr. Tully

That is not in the Bill.

Mr. Lenihan

That is what is going to be in it.

Mr. Dillon

That is a doublecross. That is really to take the whole benefit away from the small estates.

Mr. Lenihan

We will have to discuss that on the Committee Stage.

Mr. Tully

I am afraid the lawyers will have a lot to say on this section of the Bill.

Mr. Dillon

Watch the lawyers on that and see if you want to send it to a Special Committee. The Minister is thinking of the day he will be a lawyer again.

Mr. Tully

The Minister has quoted the figures. He says the present system is not being used. The reason it is not being used is that it is not possible to get the Customs and Excise officers. I know people who travelled long distances to meet these people and found that the officers were gone when they arrived. All those complications can arise. The Minister intends to have local officers available and, in addition, I hope it will be possible to do it with a central office in Dublin. Many people down the country can more easily get to Dublin than to some of these country towns. That may not be appreciated by the lawyers but I think it will be appreciated generally. Whether or not it is right to bring up the limit I do not know, but it can be discussed.

The original Bill suggested that a farm could be divided up into numerous small sections. I think that is something the Minister for Lands would not agree to. I think he would be perfectly right because that would not work. The Minister for Justice was right in attempting to have it changed. The member of the family who has been settled, who has already left the household and who has got either some money or kind from the family when leaving, who has made himself independent by his own efforts, need not be included. I think that is a good idea.

I honestly believe that if this Bill is to do any good, the Minister will have to ensure we do not have a repetition of the Land Bill. There are 129 sections in this Bill at present. I would like the Minister to assure us we will not find 129 Ministerial amendments before the Bill is finished. It is pretty complicated as it stands. There are some sections which do not seem to make any sense. In his desire to improve the Bill as it goes along, the Minister could find himself in the situation in which his colleague, the Minister for Lands, found himself a few weeks ago—that he had so many Ministerial amendments, not to talk of amendments put in by other Deputies, that it was hard to recognise the Bill as the Bill originally introduced.

Mr. Lenihan

Surely that is good democracy? Is this not what Parliament is for?

Mr. Tully

No. Parliament is for introduction of the Bill considered by the Government, the final product coming from the Minister having been approved by the Government, being as near possible to perfect as they can make it.

Mr. Lenihan

Then Parliament is only a rubber stamp?

Mr. Tully

Parliament then have the right to introduce amendments. It is not right that the Government should, after the introduction of an important Bill, change the whole kernel of that Bill by Ministerial amendments. That is what happened on the Land Bill and it may happen on this one, too.

Mr. Lenihan

There will be a number of Ministerial amendments.

Mr. Tully

I am aware of that.

Mr. Corry

Then what are you making all the noise about?

Mr. T. Lynch

The Bill was never brought before your Party.

Mr. Tully

If the two silent Deputies in Fianna Fáil, who certainly do not speak too often, want to say something, they will have the whole day after the Protection of Animals Bill tomorrow and they can talk as much as they like.

Mr. Fanning

You know a lot about the Protection of Animals Bill.

Mr. Tully

Deputy Fanning might know a lot about animals——

(Interruptions.)

An Leas-Cheann Comhairle

Perhaps Deputies will allow Deputy Tully to speak? There are only a few minutes left.

Mr. Tully

The Bill was introduced as a result of a discussion in the House that something should be done to deal with the position of people dispossessed. Most of us were delighted when it was originally introduced but, when we saw the form of it, we felt it did not meet all we wanted. The amendments the Minister proposes to introduce will bring it much nearer what we hoped it would be. The Minister announced four amendments, then two more and now a further one. If this is only the start, we will see the amendments piling up until eventually we will have the same situation as the possessed. Most of us were delighted Land Bill; it will be hard to recognise this Bill as the Bill originally introduced.

Debate adjourned.