I should, perhaps, start by begging the Minister to receive my efforts at expressing my ideas on matters legal charitably because, like many other Deputies, I am very far from being an expert in this field. It is possible to see a definite evolution in the law regarding property and the rights of owners of property. That evolution has been going on for 100 years now. We are long past the time when the law expressed the then current social opinion that the rights of the owner were in all cases paramount. Under that law the owner had a great deal of room to dispose of his property as he wished. We have seen in all sorts of matters a continuous circumscribing of these rights of ownership. We have seen it in the matter of death duties and the rights to pass on property. We have seen it in the right to export money from a country being severely limited. We have seen it in continuing efforts of long duration to strengthen the rights of tenants as against the owners of property. We have seen all sorts of strengthening of the position of the person in an economically subservient situation. It is interesting, if one goes back, to find 700 years ago parallels in the law at a time when, prior to the rise of capitalism, the feudal ideas were strongly expressed in the law and the rights of the subservient and the lower classes were perfected.
As I understand the complex wording of this section, it seems to me that this is flying contrary to the direction of evolution in regard to property. It is a strengthening in a sort of 19th century capitalist sense of the right of the owner of property and a weakening of the right of the tenant. I am not clear what exactly the legal definition of tenancy is; let me widen it and say, therefore, a weakening of the position of the occupier and a strengthening of the position of the owner. This seems to me to be contrary to the spirit of this century in regard to the relationship between owners and tenants and owners and occupiers. This is retrograde because in our society we clearly need legislation which all the time discriminates in a way that strengthens the position of the weaker, the poorer, the non-property-owning sections of our society. Surely the need for equalisation and the need for social justice is recognised on both sides of this House.
It may be that I am failing to understand this rather difficult section, but it does seem to me to strengthen the right of the property-owner to occupy, dispense with and do as he will with that which he owns, contrary to the general evolution. This is an objection to the principle of this section which is, I think, the validation for the amendment we are now discussing. I think, too, that we have entered a very strange area; I say this again in ignorance and not as a lawyer; I am simply trying to proceed on the basis of common sense and, I hope, of goodwill in this area. It is no use saying: "Let us write it down that way and agree to it as a sovereign Parliament and let us promulgate it as the law of the land because we all understand it will not quite work out that way." It may be that I am misunderstanding the Minister, but this suggestion that the gardaí would not bring a case is not tenable because, even if we grant that the Minister is right in the vast majority of cases, one might get a cantankerous garda or one who in, perhaps, an unfashionable sense, felt it was his duty to carry out the law as enacted by us.
At times there are signs of too much discretion and it is often very unfair to vest that sort of discretion in the Garda. Their job is not to exercise discretion either to favour people by excusing them from prosecution, if there is a violation, nor yet to punish them by pushing a prosecution beyond that which is normally necessary: their job is simply to carry out the law as enacted, to use the old cliché, without fear or favour. I believe that is something the gardaí would wish themselves. I think they hate being put in the position in which, so to speak, a nod is as good as a wink: the law is on the Statute Book but it does not quite mean what it says.
The other side, the judges, then: it is, I admit, impossible to draw up a body of legislation which, just by reading it, can be applied to any situation. If that were the case we could computerise all the rules, ask the computer a question and the computer would give an answer. Judges, juries and all the rest of it would be totally redundant. There is no way in which one can remove the human element. Again, I do not think the judiciary like being put in the position in which they are showing benevolence because, if you show it on one occasion, what is the opposite of it on another occasion? Malice. If you are benevolent to one you balance it up by being malicious to someone else. You balance it and you do not get justice in every particular case. From the point of view of the judges and from the point of view of the garda this sort of sanction is undesirable.
I understand, and this is not an exact quotation, that the Minister said a person would have a high moral claim after 50 years. The sad experience that one has of the world is that a very high moral claim is not worth a damn if there is not a legal claim which can be upheld. This world is full of people who have very high moral claims not to have been fired out of their jobs but who are nonetheless unemployed; it is full of people who have very high moral claims to have employment in their own country but are working somewhere else; it is full of people who have very high moral claims to occupy a particular house or piece of land but they do not occupy it. They do not have any claim in any sort of legally upholdable form. The world is full of people who have very high moral claims to things which they cannot enjoy. Were it otherwise there would be no injustice in the world and there is patently a great deal. The suggestion of a very high moral claim as far as I am concerned is utterly irrelevant to the process of reasonable law-making and should not be brought forward in connection with a piece of legislation at all.
The final thing which makes us wish to keep reiterating our support of Deputy Cooney's amendment is the extraordinary suggestion that it is not possible to find a form of words which would explain exactly what is intended. Surely this is to deny the possibility to legislate? If one cannot find a form of words to say what one means then one cannot make rules at all. If, on the other hand, the Minister is admitting, and I do not want to put words into his mouth, that the distinction, which he seeks to make for reasons which seem to me to be bad reasons, is, in fact, a distinction which could not be drafted in legal terms which would stand up in all circumstances, then this is a valuable admission because then the Minister is saying: "Yes, we want this legislation because we want to do something but it is not possible to draft it." We can only say to the Minister: "If you are looking for a right which cannot be drafted into that legislation this is a right which this Parliament will resist giving to you."
It is a reproach not just to Parliament inexpert and amateur as it is in the matter of laws to be given an explanation like this. It is also a reproach to the highly qualified public servants with legal qualifications in the employment of the Minister. He is not the actual draftsman: he does not draft the law and if he does it is very irregular. There are people with a great deal of expertise and professional training to do this. I would be surprised if people with this background and this professional skill would come to the Minister and say: "We cannot find a form of words." I very much doubt if any legal draftsman would admit such a thing. He would be knocking away the basis for the validity of the whole activity of his life as a draftsman.
It is the Minister's decision that a form of words cannot be found because, in fact, he is unwilling to expose the basic contradiction which exists in the heart of this section. That contradiction is that he wants to have a law which can be applied at his discretion or at the discretion of certain other persons in a selective way against people whom the Minister does not like. Were we to admit that sort of principle into law-making, were we to admit a partisan or a punitive principle, were we to admit that laws could be made to act against bodies or political activists with whom we happen to disagree we would be violating the principles on which this Parliament is built; we would be violating the many decent strands in the history of the evolution of legislation in the legal profession and we would, I think, be violating all the responsibilities which we have as elected representatives to the people who sent us here. This is, perhaps, an unduly lengthy intervention on what seems a trivial thing but, in fact, it is far from a trivial thing; it is essential.
We are still at the beginning of the Bill and no amount of amending, it seems to me, is going to get over it. There is a basic contradiction in the Minister's approach. One simply cannot draft legislation which will punish black people but not white people, left wing people but not right wing people, women but not men or some other such category which exists in one's mind. The law has to be the same for everybody and this is not intended in that way by the draftsmen. We cannot leave it to the discretion of the Minister or to the discretion of the Garda. If we now enact it we cannot leave it to their discretion to apply it in that way.