Dáil Éireann díospóireacht -
Thursday, 1 Apr 1982

Vol. 333 No. 7

Supplementary Estimate, 1982. - Housing (Private Rented Dwellings) Bill, 1982: Second Stage (Resumed).

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

Mr. Shatter

I welcome the passing of the Rent Restrictions (Temporary Provisions) (Continuance), Bill which will provide a degree of security for tenants for a further period of three months in the event of the Bill under discussion being referred to the Supreme Court by the President, on the advice of the Council of State, for determination as to its constitutionality. That move was suggested by this side of the House. The House is now being given some leeway in that eventuality and will relieve the worries and anxieties of many people who were concerned as to what would happen on 25 April in the event of the Bill being discussed not being signed by the President and being referred to the Supreme Court. I should like to refer briefly to the context in which the Bill we are now discussing came before the House and deal with remarks made here yesterday. The Bill is necessary because the 1981 Bill was rejected by the Supreme Court. It was suggested in the House yesterday that in rejecting the 1981 Bill and finding it to be unconstitutional the Supreme Court acted in some sort of pro-landlord bias. There was a suggestion that the Supreme Court was not doing what it has always done, acting objectively as a court judging an issue. In this context I should like, as other Members have done, to dissociate myself from the remarks made about the Supreme Court in this context. I should like to put on record that I deplore the attack made on the Supreme Court yesterday.

The Supreme Court is an independent court whose members, since its establishment, have served the State well and fulfilled the constitutional duties conferred on them. In making a determination on the constitutionality of the 1981 Bill the court was doing no more than it is required to do under the Constitution, to determine whether that Bill, in the light of the Constitution, protected the fundamental constitutional rights conferred on everyone residing within the State by that Constitution. The suggestion that the Supreme Court was acting in some biased or blinkered way in dealing with that legislation is unworthy of any Member of the House. It casts a doubt on the independence and integrity of members of the Supreme Court. It should go out from this House that all Members have full confidence in the Supreme Court and in the integrity and independence of its members. It damages the institutions of the State to suggest otherwise.

In the context of the remarks made specifically about the court's approach in the area of rent restrictions which we are concerned with today, I draw the attention of Deputy Quinn who launched his somewhat startling and totally inaccurate attack, to the judgment delivered by the Supreme Court in 1982 on the 1981 Bill which specifically referred to the necessity to protect tenants as well as landlords. The court emphasised that legislation dealing with this area must provide for a balance between the rights of all those who are going to be affected by it. For some reason unknown to me Deputy Quinn confined his remarks to the fact that the court found that the Bill it was dealing with discriminated against landlords. The court also found that the tenants have certain constitutional rights.

The court went on to say that in its judgment, on the basis that the landlords effectively were entitled to a proper market rent:

"on the assumption that undue hardship is likely to be caused in some instances to tenants should be made and that the question may arise whether such hardship would amount to an unjust attack on the property rights of the tenant contrary to Article 40.3 of the Constitution or would amount to an unjustifiable treatment of such tenants in contravention of Article 40.1 of the Constitution."

The court went on to say that because under the Constitution it had already found one section of the Bill referred to it unconstitutional, it was not necessary for it to further consider the effects the Bill would have on the rights of tenants because it did not arise as the Bill was not going to become law. The court stated specifically that because of the decision the court had already reached, it was unnecessary to consider the matter further. However, the court stated, having regard to the obligation imposed on the State by the Constitution to act in accordance with the principles of social justice, it recognised the presumption that any such hardship would be provided for adequately by the State.

The court went on to say — it is worth bringing this to the attention of the House and the Minister — that it was not therefore necessary to pronounce upon any other provisions of the Bill it was considering. Earlier in its judgment the court referred to the fact that its decision may not, for the legislators who may have to consider the matter again, completely explain all the possible constitutional imperfections or difficulties in this area. I would caution the Minister in this regard. It should go from this House that we recognise the impartiality of the judgments delivered by the Supreme Court. The Supreme Court has a very real and important function to perform in this area. I take the point made by Deputy Fitzpatrick this morning that when this legislation goes through the House there will be a doubt about its constitutionality and it was better that that doubt be resolved immediately than to leave it up in the air with a legal grey area for a year or 18 months while some private person litigates through the courts on a further constitutional action. There is a need, in the interests of landlords and tenants, to ensure that there is no further uncertainty in this area and that the legislation that goes through this House is recognised as constitutionally able to deal with the problems that arise in this complex area of legislation.

In order to bring about that assurance there is a need for a reference by the President — that is very much a matter for him, on the advice of the Council of State, to decide — of this to the Supreme Court. I hope that in the event of this matter being again referred to the Supreme Court, no matter what decision the Supreme Court makes, Members of the House will refrain from the type of extraordinary attack Deputy Quinn indulged in yesterday. It was unworthy of the Deputy who, apart from that attack, made a valid contribution to the debate. It was a most unfortunate manner of dealing with the problem, attacking the Supreme Court in the way he did. It should be said that all too often our courts have had, due to the failure of this House to bring legislation up to date and take into account social realities and people's constitutional rights, to make decisions that effectively changed and liberalised laws. Many of those decisions, no doubt, have appealed to Deputy Quinn. I have not, in the circumstances of other decisions delivered by the courts heard him make such unwarranted and untoward attacks on the courts. I hope Deputy Quinn, if he has the opportunity of doing so, will withdraw any imputations made in the House against the integrity of members of the Supreme Court.

I should like to refer to some of the provisions in the Bill, in particular those which I feel could be improved in providing the type of balancing act we must provide in protecting the interests of landlords and tenants. I hope the Minister will consider looking at the Bill in relation to two areas I shall deal with. Section 11 sets down the manner in which a court or a tribunal determining a dispute between a landlord and tenant may make that determination in the context of the terms of a tenancy. The section states that the terms of every tenancy of a dwelling to which section 8 relates shall be such terms as are agreed between the landlord and the tenant or, in default of agreement, as shall be fixed by the court. The difficulty with that section is that it goes on to discuss in more detail the context of that. However, the section does not — not does any other provision in the Bill—give the courts any guidance as to what terms should be proposed for particular tenancies or leases. The only circumstance in which the Bill goes into detail is in the context of providing criteria for determining rent of tenancies. It does not provide any criteria of any detail to guide the courts as to whether their terms and conditions should be included in tenancies, upon new tenancies having to be negotiated or conferred by the courts under the provisions of the Bill. The suggestion is that district justices, as the Bill is presently framed, should provide, effectively, detailed leases for landlords and tenants.

The only criteria on which they are given any guidance is in the context of rent. There is a tremendous degree of uncertainty as to how the courts will deal with it. It is fair to say that the legal profession, having had an opportunity to examine the Bill, are considerably worried about how any tenant or landlord will be legally advised properly on what other types of terms should be included, or insisted upon, in respect of the conclusion of new tenancy agreements following upon the implementation of this Bill. The Minister should consider this aspect. In the event of this Bill being accepted by the Supreme Court as being constitutional, we may find that, due to bad drafting, we will have to deal with another amendment Bill very rapidly, in order to give the Bill some sense and make it operational in certain areas.

In the context of section 11, I draw the Minister's attention to my point yesterday in the context of another section, that if the Minister intends by regulation to provide for minimum standards of rented dwellings, which is desirable, he should give the tenants of those dwellings a right of action against the landlord in the event of his failing to comply with such minimum standards. I suggested this on the basis that the housing authorities will not have the capacity, manpower or finance to enforce the section of the Act relating to minimum standards. Unless section 26, which permits minimum standards to be imposed, is given real teeth or made properly enforceable, it will be meaningless. In this regard, I draw the Minister's attention to section 11. I have already suggested that section 26 and the conditions of tenancy and the condition of the dwelling be taken into account in determining rent under section 13. Section 11 again states that every tenancy:

shall be such terms as are agreed between the landlord and the tenant or, in default of agreement, as shall be fixed by the Court.

Subsection (2) goes on to say:

Whenever, after the commencement of this Act, the rent of a dwelling is increased by agreement between the landlord and tenant or by the Court, the amount of the increase shall not be payable until:

(a) the terms of the tenancy have been set out in written form and signed by the landlord or his agent and a copy thereof has been furnished by the landlord to the tenant, and

(b) if regulations under section 24 are in force, the landlord has complied with the requirements of such regulations.

Section 24 is concerned with the registration of dwellings. It is desirable that landlords be encouraged to register these dwellings to ensure that minimum standards are complied with and I congratulate the Minister on the provision that rent increases will not be payable by tenants to landlords unless dwellings are registered. I suggest that section 2 (b) should refer, if regulations under section 4——

An Leas-Cheann Comhairle

I do not like to interrupt you, but I would ask you to keep more detailed comments for Committee Stage. Normally, Second Stage debate gives an opportunity to the House to discuss a Bill on a broad base.

Mr. Shatter

The only reason I am making comments is that this is a matter which interacts between a number of sections in the Bill. This is a general matter which the Minister might consider before Committee Stage.

An Leas-Cheann Comhairle

The Deputy will appreciate that other Deputies might hope to make general comments on Second Stage.

Mr. Shatter

I was suggesting to the Minister that increased rental should not be payable to landlords who have not complied with minimum standards. That section should, in addition, refer to section 26, as well as section 24. That would do a great deal to improve the content of the Bill before the House. In relation to the further sections of the Bill, as the Minister correctly says, a number of amendments could be made to the Bill. Most of these should be dealt with on Committee Stage.

I make one further general point. Under the provisions of the Bill, in the event of a landlord getting repossession of a premises as a result of a court order and in the event of a tenant being able to establish that the landlord had misrepresented or concealed material facts when the matter came before the court, the Bill provides that the landlord may be required subsequently to pay compensation to the tenant. That is a matter which arises under section 19. However, there is a curious omission from the Bill. If a landlord by deception gains repossession of a dwelling he may be required to compensate the tenant, but the Bill does not confer any power on the court to order the landlord to hand possession back to the tenant. In other words, if, through false evidence, the landlord succeeds in getting repossession of a dwelling, it should be open to a court, upon that falsehood being established to the satisfaction of the court, not merely to compensate the tenant but to repossess him in the dwelling out of which he was wrongly put in the first place. The Minister might consider making that a further amendment, which I have no doubt will be agreed to on both sides of the House.

In the context of this area of legislation we must be conscious of the rights of both landlord and tenant. It is very easy to take one side or the other and, as a consequence, produce imbalanced legislation which will have a very detrimental effect on the availability of housing within Dublin city, county and the rest of the country. Landlord's rights must be protected, as must tenants'. In the area of private rented accommodation many thousands of people depend on landlords to provide such accommodation. We must be wary of adopting the approach of attacking landlords because they provide houses and dwellings for rent when this State is not in a position to provide the vast majority of people who live in rented accommodation with accommodation out of its own finances.

In the context of ensuring that this legislation is easily enforceable, that the rights conferred on both landlords and tenants can be implemented easily and that it is not an unduly complex and involved procedure. I turn briefly to an item referred to by other speakers, which will be discussed in far more detail on Committee Stage. I seriously urge the Minister to consider adopting amendments proposed on this side of the House to meet the establishment of a private rented dwellings tribunal. I do not believe that it would be impossible within the time available to establish such a tribunal. The type of tribunal being proposed is not a unique or difficult body to establish. The prototype of the tribunal, the type of regulations which it would require, can easily be gleaned from the employment appeals tribunal. The Minister has recognised and accepted that, within the present court structure, there will not be sufficient district justices or, in fact, facilities by way of buildings, available to take all the applications which will be made under this legislation. If this Bill is enacted then when it becomes operational the court situation in the context of the District Courts will be far worse than at present because on 12 May 1982 a wide variety of additional jurisdiction is being conferred on District Courts under the Courts Act, 1981. The District Courts will be swamped with cases on different areas of law over some of which at present they have no jurisdiction and because the financial limits of the District Court have been so increased cases which presently can be dealt with only in the Circuit or High Courts will then be dealt with in the District Court.

The Minister intends, under this Bill, to confer jurisdiction on the District Court which would, by itself, overload that court and, by the Minister's admission, so overload it as to result in the Minister's recognising the need to appoint additional justices. This will happen at a time when the court will be overloaded and ill-equipped for the massive new jurisdiction conferred upon it under the Courts Act, 1981.

It would be less disruptive and far simpler if the Minister were to accept amendments on the establishment of a rents tribunal which would give approximately one month to establish such a body. The new facilities or buildings which the Minister suggests which would now have to be dealt with by a district justice could be dealt with by members of the rents tribunal. It would not be an impossibility or a difficulty to establish such a body.

I hope that as this House is co-operating with the Minister in accepting the need to pass this Bill swiftly through the House before the Easter recess the Minister will treat the amendments put down on this side of the House with a similar degree of understanding, give them realistic and proper consideration and not reject them purely because they are amendments put down by the Opposition. I believe the Minister is personally committed to a rents tribunal; I have heard him saying so in this House and elsewhere. I believe all Members of the House recognise the need for one and this Bill before us provides a unique opportunity to establish such a tribunal to deal with one area of rented dwellings. I hope, in the not too distant future, we will have a further Bill which will consolidate the law in this area and provide a more coherent approach so that all private rented dwellings will be treated in the same way, regardless of when they were purchased or when tenants moved into them. I hope it will have general criteria applicable to deal with the totality of this area and provide for a tribunal such as a private rented dwellings tribunal with jurisdiction to determine all disputes between landlords and tenants.

Before we provide that type of comprehensive approach we should establish a rents tribunal under this Bill to see how well it works and to afford an opportunity to extend its application in other areas of law affected by landlord and tenant in the context of private dwellings.

Mr. L.T. Cosgrave

On a point of order, while thanking the Minister for the extension to the debate, I wish to appeal to all the Members that, due to the restrictive nature of the debate, they might be a little more restrained than usual including my own party colleagues.

An Leas-Cheann Comhairle

The Chair endorses that request.

Mr. B. Desmond

Could we have an informal understanding that we would each speak for about ten minutes because Second Stage must conclude by agreement?

An Leas-Cheann Comhairle

On Second Reading, provided the Deputy is relevant, there is no limit to his time but the Chair would appreciate if Deputies, being conscious of the present time limitations, would be considerate of the fact that other Deputies may wish to speak before 1 p.m.

Mr. G. Birmingham

Since the House is co-operating with the Government could you exercise some flexibility on Committee Stage in allowing Deputies to make contributions more general than might otherwise be tolerated, if Deputies do not get an opportunity to contribute on Second Stage.

An Leas-Cheann Comhairle

The Chair must do what is required and must carry out to the letter what is in Standing Orders as far as Committee Stage is concerned. I would ask the House not to anticipate anything, except the realisation that we have an hour-and-a-quarter during which Second Stage must be completed. I ask Deputies to be considerate of the wishes and rights of other Deputies.

Mr. De Rossa

The spirit of the Bill before the House is summed up in the first paragraph of the Explanatory Memorandum:

....the Bill is founded on important principles in the Constitution, in particular the rights of private property and the role of the State in defending these rights....

That is the nub of the problem which bedevils any attempt by this House to deal with the rights of tenants and families and the scandalous rip-off of those people by housing and land speculators. This Bill sets out to achieve three basic aims, to decontrol immediately the rents of tenants at present in rent restricted dwellings, to decontrol over the next 20 years the rights of these tenants to possession of their homes and to pay out taxpayers' money, through the agency of the social welfare subsidy, a subsidy to private landlords. This course of action has been forced on us by the Supreme Court decision and we are now being warned by representatives of the landlords that even the minimum safeguards being written into this Bill for the landlords' tenants will again be challenged in the Supreme Court.

Apart from the urgent need there is for this House to bring in this Bill and to prevent an open season on rent restricted tenants, it is becoming increasingly urgent that legislation be brought in to protect the thousands of private tenants who are living in uncontrolled rented dwellings and who are literally being mugged by grasping landlords who pay no tax.

At present all furnished dwellings and residential lettings made since 1966 are uncontrolled and, therefore, in the vast majority of flatland areas there is no security of tenure, no rent control and no set standards for the accommodation provided. Furthermore, it is widely known that most, if not all, the rents received by landlords is never declared to the Revenue Commissioners. A myth has been created by landlords of rent restricted dwellings who have agitated relentlessly for complete decontrol and have been instrumental in bringing the constitutional action which has brought about the present situation, that they are a minority who are discriminated against and have lost financially because of rent control. It should be noted in this regard that a great many rent controlled dwellings were bought cheaply by property speculators who, having bought these properties for a fraction of their open market value, proceeded to indulge in extra-legal bullying activities to obtain vacant possession. There are cases in Dublin city where speculators bought rent controlled dwellings for as little as £7,000 while adjacent properties with vacant possession were selling for £60,000. There are also cases in Dublin where landlords have used disgusting tactics to force tenants out of their homes, such as covering stairways with excrement, smearing doors with grease, spraying children's clothes hanging on clothes lines with acid, ripping off sections of roofing and turning off water and electricity supplies. In short, these landlords have waged war against their unfortunate tenants over the past ten years, most of whom are elderly and in poor circumstances.

The ALONE organisation will testify to the degrading conditions in which many of our old people have to live in these rent restricted houses. This is going on while, in the majority of cases, the tenant has paid more in rent over the years than the landlord has paid to acquire these so-called rights. Landlords who have just bought a dwelling have more rights than a tenant who has lived there for more than 50 years. Clearly Article 43 of the Constitution which relates to the rights of private property and on which the judgment striking down the relevant parts of the Rent Restrictions Act is based, is far too favourable to the rights of private property owners and is weighted against the concept of the common good and of social justice which is also enshrined in the Constitution. It clearly contradicts Article 41 which reads as follows:

The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

The rights of a family manifestly include the right to a home which is being denied to thousands and thousands of families by the court's interpretation of Article 43 of the Constitution.

There is, therefore, an urgent need for an all-party review of the Constitution, to make some attempt to restrict the all powerful rights of private property owners. These rights run through our laws and are responsible for the restrictions that exist in many areas and for the failure in social and industrial development. For example, planning authorities are literally coerced in many cases into disregarding the proper planning and development of an area because of the compensation clauses of the Planning Acts. These clauses can be directly attributed to Article 43 of the Constitution. The result is a transfer of public funds to private hands as is happening in this Bill. The various Rent Restrictions Acts and landlord and tenant law in general have at best been a makeshift approach to the problem of controlling rents of dwellings. In urban areas I understand it goes back to the time of the First World War when the British Government attempted to control rising rents resulting from a large movement of people from rural areas to the cities and who were being ripped off by the predecessors of the present species of predator landlords.

Since then there has not been a rational attempt to provide social justice by regulating rents or providing security of tenure. As it stands, in the view of my colleagues and myself, the Bill has unnecessary weakness which we consider can be eliminated without raising Article 43 problems and, consequently, we have tabled a series of amendments to the Bill. For instance, we believe there should be a rents tribunal with the power to determine rents. We believe the landlords should be obliged to bring dwellings up to standard before any new rent would become payable. We consider that the provisions under which landlords may recover possession should be narrowed and that the tenant should have his ability to pay the new rent assessed on the basis of the housing authority differential rents system. We also suggest that the Minister should be obliged to make regulations in regard to the registration of dwellings, the provision of rent books and the prescription of standards. In the Bill as it stands, the Minister has no such discretion. We believe that the compensation for tenants being dispossessed and evicted should be increased from the proposed two years' rent or alternative accommodation to five years' rent or alternative accommodation.

We welcome the introduction of the Temporary Provisions Bill which was announced here this morning. It will extend protection for tenants for a further three months. We on these benches as far as possible will facilitate the speedy passage of the Bill now before us on the clear understanding that we will be given an early opportunity to have the amendments which we have put down debated. I also ask the Minister to incorporate, where he feels it possible to do so without causing undue delay, any of the amendments tabled here today so that tenant rights will be strengthened. I urge that an early move be made in relation to the constitutional problem. Otherwise, that problem will be with us until we sit down to decide definitely that we will limit the right to private property in the State.

Mr. Spring

I welcome the Bill. I welcome the efforts of the Minister to bring this Bill before us today. As well, I welcome the Temporary Provisions Bill, but with reservations. My reservations are twofold. First, we will not succeed in our efforts to overcome the problem that has arisen by reason of the unconstitutionality of the Rent Restrictions Act; and, secondly, this Bill leaves a lot to be desired from a technical point of view. I do not think it will stand the test, even if it will survive the test of constitutionality, on technical grounds because its implementation will cause severe problems.

In relation to the findings of the Supreme Court on the 1981 Bill, having studied the judgment in detail I feel that the court acted soundly on the basis of law. The court's interpretation of the Constitution gave it little choice but to find the 1981 Bill unconstitutional. I am afraid this problem will continue until we get to grips with the balance between the right to private property and the cause of social justice. At the moment the Constitution allows for the right to private property to take precedence over social justice requirements, and until the Oireachtas takes up that task and allows social justice to have priority over right to private property we will not solve the problem in relation to rents of private dwellings.

In relation to the technical administration of this Bill I notice from the Minister's opening speech that he is aware of the problems now existing in the District Court without contemplating the problems that will exist there when a whole new area of legislation will come before the court later. Does the Minister believe honestly that the appointment of extra district justices will get over the difficulties of accommodation and other facilities to cope with what I would expect to be a wave of new cases coming before the District Court?

Deputy Shatter referred to the implementation of the 1981 Courts Act, due to come into force on 12 May next. This will further burden the courts system, which is already saturated. I cannot see any possible way to have satisfactory administration of this Bill, given the present structure of the District Court, the present delays in that court and the delays which will ensue from the implementation of the Courts Act, 1981.

I believe that the Minister agrees that a fair rents tribunal will be the only remedy and I think this can be done in a short time. I suggest that in the meantime the Temporary Provisions Bill be extended for a longer period so that we can get to grips with the machinery of the Bill now before us in order to give it some chance to work, because I do not think it would work in its present technical form and anyway it would come up against the delays in the District Court to which I referred.

I am hesitant to give approval to the provision whereby the Department of Social Welfare would be instrumental in dealing with the subsidies to tenants. That Department, like the District Court, are already over-burdened, and this provision in the Bill would put an obstacle in the way of tenants who would have to go to the Department of Social Welfare. The Bill is sponsored by the Department of the Environment. Because each local authority have their own housing sections, I suggest it would be far wiser to keep this matter within the ambit of that Department so that it would be administered by the local authorities' housing sections.

There are many aspects of the Bill rather weak in their construction. For instance, the section excluding from protection persons with tenancies other than year-to-year contracts, who were hitherto protected. I say this is unjust in relation to tenants who may have two-yearly tenancies. Section 8 (3) deprives tenants who have taken assignments of leases. I cannot understand the reason for that. Because the assignees were protected by the 1967 Act, they should continue to have protection under this Bill. It is not clear from the Bill whether the section relates to past or future assignments. Of course it can be justified in relation to future assignments, but I cannot see the slightest justification for it being applied to past assignments.

The provisions of section 9 of the Bill, though sound in their intention, will confront us with the same difficulties in relation to constitutionality. The technicality in section 12, whereby a person is prohibited from reapplying to the District Court for a period of five years after the fixing of a rent, is unrealistic when we take modern circumstances into account and the possibility of a person's circumstances changing very rapidly at a time of high unemployment. It is quite ludicrous that a tenant whose circumstances may change within a very short time of the rent being fixed by the District Court will still be bound to pay the same rent and not have liberty to apply to the District Court to have that rent changed in view of his changing circumstances. Any fear that this may lead to frivolous applications can be allayed by having costs allowed against the applicant in such frivolous cases.

There are certain terms in the Bill which will lead to a lot of confusion and difficulty for the people who are given the responsibility of interpreting and implementing the provisions of the Bill. Where the length of a tenancy is deemed to be a factor to be considered by the court in fixing a fair rent, the Bill does not clarify what weight should be attributed to the length of the tenancy or whether it could be used to the disadvantage of the tenant in the case of a tenant who has been in long residence. The judge may take the view that, because the tenant had a long controlled tenancy and had been paying a reasonable amount, this person could now afford to pay a market rent.

The failure to provide for the giving of specific notice of improvements by a tenant to a landlord will also lead to confusion. If we are to prevent a landlord being taken by surprise in a situation where both the landlord and the tenant are not au fait with improvements being done which need to be done, we should introduce a simple mechanism whereby a short form notice of improvements would be required to be given by the tenant to the landlord prior to the improvement being carried out. Otherwise chaos will result.

The term "in the interests of good estate management" is used in section 16 and the question of interpretation of that section is left to the courts. But we have defined other terms such as "planning and development". The Minister should have specified the meaning of "in the interests of good estate management". If this term is interpreted to mean commercial and economic considerations we will end up defeating the purpose of the Bill, because if only commercial and economic considerations are taken into account the tenant will be put in a vulnerable position. The Minister should have specified what he meant, because we are well aware that what that term may mean to a landlord or estate agent may be totally opposed to what it means to a tenant of poor means.

In relation to the provisions in the Bill allowing the court to make an order for possession. I feel we should have provided that the landlord would be allowed to obtain possession of a portion of a dwelling. It may be that in a situation that has arisen over a period of years where a tenant, particularly in a larger dwellinghouse, would not need the use of the whole premises and where the landlord was seeking to obtain possession, both interests could be adequately catered for by allowing for an order for possession of a portion of the building in question. This would certainly provide for the needs of the tenant in situations where the tenant does not need the use of the full premises.

I welcome the efforts of the Minister and his advisers in getting this Bill before the House. But it should be borne in mind that the likelihood of this Bill surviving the rigorous test on a constitutional basis must be fairly slim. We should not allow a situation to develop where there is going to be a grey area of law for some time. Already notice has been served that this Bill will be challenged in the courts and we should hope that the most expeditious mechanism will be used to get this Bill before the Supreme Court at the earliest possible date. However, as I said at the outset in view of the problem of the Constitution whereby the rights of private property gain precedence over the necessities of social justice, we are not going to solve this problem despite the efforts of this House. I would urge the Government to set up a committee of the House so that all parties can be consulted and we can tackle the problem seriously. I would humbly suggest that the Constitution be amended to solve the problems of rent control.

Mr. G. Birmingham

I will be brief and I will abide by the suggested ten minute limit. I first spoke in this House some seven months ago when I spoke on the first Temporary Provisions Bill. At that stage I suggested to the then Minister of State, Deputy Fergus O'Brien, when he brought the Bill before the House that the time given to it was likely to prove inadequate, so intractable was the problem we faced. It is regrettable that that apprehension has proved to be justified. But I indicated at that stage that I was concerned because the Temporary Provisions Bill then introduced seemed to hint that when substantial legislation came before this House it would preserve the distinction between controlled dwellings on the one hand and uncontrolled dwellings on the other.

That apprehension also proved to be justified, and I regret that that distinction is maintained in this Bill. If this Bill becomes law tenants in controlled dwellings will continue to enjoy a bundle of rights not enjoyed by tenants in uncontrolled dwellings. With respect, that makes absolutely no sense whatever, because the distinction between a dwelling that is controlled and a dwelling that is uncontrolled is entirely arbitrary. It is a matter of historical chance if someone enjoys these rights or finds himself totally at the mercy of the market and totally unprotected by legislation. It is a matter of historical chance whether a building was built before or after 1941, whether or not at any stage the landlord came into possession and what the poor law valuation of the premises happened to be, and it has nothing at all to do with the circumstances of either the landlord or the tenant. It seems that legislation that is grounded in the maintenance of that artificial distinction must itself be inherently flawed.

Without delaying the House I would refer briefly to the judgment of the Supreme Court in the Blake and Madigan case which was the judgment on the original Act and, in particular, to a portion of the judgment of Chief Justice O'Higgins. He makes the point that:

Neither the means of the tenant nor the lack of means or possible hardship to the landlord may be considered in determining the permitted rent. It is therefore, apparent that in this legislation, rent control is applied only to some houses and dwellings and not to others, that the basis for the selection is not related to the needs of the tenants, to the financial or economic resources of the landlords, or to any established social necessity, and, since the legislation is now not limited in duration, is not associated with any particular temporary or emergency situation. Such legislation, to escape the description of being unfair and unjust, would require some adequate compensatory factor for those whose rights are so arbitrarily and detrimentally affected.

I would respectfully suggest that in preserving that illogical distinction between controlled and uncontrolled dwellings this legislation is similarly flawed and is similarly suspect constitutionally.

The Bill that has come before the House clearly must go through today, because we all accept that legislation is urgently needed. The Bill is inadequate in serving both landlords and tenants. When the Supreme Court considered the abortive 1981 Bill they had to stop as soon as they found one section which was unconstitutional. They found that when considering the position of landlords. However, since the matter had been argued before them they gave a very broad wink and a very firm nod to the fact that tenants were entitled to expect more than they received from the 1981 Bill. It is my contention that tenants are entitled to expect a great deal more than they receive in the 1982 Bill. All they have is that the Minister for Social Welfare may, with the consent of the Minister for Finance, make regulations. The section is not mandatory. There is no obligation on the Minister to make funds available.

A number of Deputies represent constituencies with substantial rent-controlled populations. If people come along to their advice centres next weekend and say that they heard something about subsidies and ask how they are affected, the only truthful answer a Deputy can give is that he does not know. He will have to say that he does not know if the Legislature has served their needs. This is totally unsatisfactory. Tenants are entitled to look for more than the possibility of a discussion between the Ministers for Finance and Social Welfare. They are entitled to more than the possibility that regulations may emerge from that and the further possibility that the regulations when drafted will cover their situation.

However, a Deputy could guess at what their situation will be. He knows that £6 million has been provided as a contingency measure in the budget. A sum of £6 million was also provided by Deputy Bruton in his budget at a time when our legislation would have required tenants to pay only 40 per cent of the market rent. Our Bill was seen as an unjust attack on the property rights of landlords. If this Bill is to have any hope of standing up constitutionally it must be less of an attack on their rights. If the Department of the Environment decided in January that £6 million was needed on the basis of tenants paying 40 per cent of the market rent, that sum will now be entirely inadequate.

A number of Deputies expressed doubts as to the constitutionality of the Bill and whether it is workable. I share those views particularly in relation to section 13 (2) which is really what the Bill is about. The criteria for fixing the rent are laid out in that section. They include the nature, character and location of the dwelling. That should not give rise to any difficulty. The other criteria are:

...the other terms of the tenancy, the means of the landlord and the tenants, the date of purchase of the dwelling by the landlord and the amount paid by him therefor, the length of the tenant's occupancy of the dwelling and the number and ages of the tenant's family residing in the dwelling.

One would not have to be very imaginative to realise the combinations, permutations or peculiar difficulties that could arise if one had a dwelling in an up-market residential area occupied by an impecunious tenant and perhaps owned by an impecunious landlord. It would seem that only a court of Solomon could have any possibility of administering that section as it is intended. With respect to the District Court as it is constituted, I do not believe it is a court of Solomon. The background of District Courts in the areas of law with which to date they have been involved does not equip them to take on what is an almost uniquely complex task. The demands we would put on any tribunal to deal with that section are such that it would be beyond anyone to conceive. If we are to have any hope of achieving uniformity there is need to look at the idea of a rents tribunal.

The legislation we introduced and which was found to be defective by the Supreme Court also provided that rent fixing was a matter for the District Court. There is a distinction between our legislation and this legislation. The matter we asked the District Court to administer, what would a lessor give and a lesee take, is a legal test and one to which the court is competent to give an answer but, with the best will in the world, the test now suggested is one which no court of law has any experience of dealing with. The Minister should recognise that and proceed to establish a rents tribunal.

I am concerned about the adequacy of the £6 million to be given by way of subsidy. My concern is heightened by the Taoiseach's statement on the Order of Business today that he would not wish to see this considered by the Supreme Court on an Article 26 reference. I cannot help feeling that there may be an element of thinking on the Government benches that if they get this through and provide £6 million this year, even if it does go to the Supreme Court and is successfully challenged in, say, two years at least they will have bought time. Perhaps I am being unfair but it is a suspicion which starkly arises from the inadequacy of the funds being made available and the Taoiseach's firm view that it is not a matter to go before the Supreme Court. If that is the case it is reprehensible and deplorable.

I welcome the response of the Minister for the Environment during the debate and thank him for responding so quickly to the suggestion from these benches that a new temporary provisions Bill was required. It is an encouraging sign of co-operation.

An Leas-Cheann Comhairle

Deputy Taylor, with characteristic brevity no doubt.

Mr. Taylor

Short and to the point. The two broad categories of lettings and tenancies we have are broken down into what are loosely described as tenancies of business premises and tenancies of residential premises. It has always been axiomatic that the greater degree of security and protection should be accorded to residential tenants by reason of the fact that the premises they occupy constitute their home rather than place of business where profit and so on could be made. We must compare the two types of tenancies and see what the situation would be were this Bill to become the norm. A business tenant at present, if he has occupied that business premises for three years, becomes entitled as of right when that three-year period is up to a new lease for 35 years, subject to a rent and a five-year review. At the end of the 35 years he is entitled to renew that lease again for a further 35 years and so on. Therefore, his tenancy in the premises is potentially indefinite and can continue on an indefinite basis.

Let us look at the comparable situation of a tenant who is seeking to protect his home. The tenants we are talking about have been in occupation not for three years but for, 30, 40 and 50 years. Yet we find ourselves faced with the proposal to decontrol their rents and take away the potential permanency of their interest. They always had a permanent interest under the rent restrictions code, which goes back not to the 1981 Act or the 1960 Act but to the 1946 Act and the 1923 Act. There are still in existence tenancies that came in and were controlled under the 1923 Act and were continued by the 1946 Act. For all those decades those people knew — or they thought they knew — that they had a permanent vested tenancy at a fixed rent subject only to such variations as would be permitted from time to time in various rent restrictions amending legislation. By reason of the continuation of their occupation at fixed rents for such a long time — 30 years and upwards — that, within the meaning of the Constitution, is a right to private property. That right of private property was vested in that tenant, who was entitled to regard himself as having a permanent private property right in his home by reason of that very prolonged period of years. Consider that a mere squatter on land who commenced his occupation as a trespasser becomes the owner after only 12 years in occupation. Should not the tenant who has been in occupation for so many years at a fixed rent have the same permanency and permanent control of his tenancy as is accorded by law to tenants of business premises?

Reference has been made to the question of a subsidy. The one key factor — on Committee Stage I will ask for this to be spelt out — is that the subsidy will have to be available to a tenant suffering hardship "as of right". Those are the key words. He must not be compelled to go to a social welfare or community welfare officer to explain his position, state that his income is that and his rent is that and to rely on that officer making a decision on the basis: "I will consider the matter and I may or may not grant your application for assistance to meet your hardship situation". That would be entirely unacceptable. The regulations must be so framed that the person has a legal right to that subsidy and the manner in which it is to be calculated must be clearly spelt out. I would like an assurance that the unfortunate tenant who has to go to that officer to seek this subsidy will not be met with the reply: "You come here as a case of hardship seeking assistance, but that cannot be because under the terms of the Act the district justice was obliged to take your means into account. Therefore, I have to assume that the district justice did his job and took your means into account; and, if that is so, how can you come to me and say that you are suffering hardship?" This is a potential catch-22 situation. By the same token, when the district justice is considering the matter he might be entitled to say to himself: "I do not have to trouble myself unduly about the criterion of the means of the tenant or taking the means of the tenant into account because a specific provision in the Act says that in the event of any hardship the social welfare people will take care of that". I would like the Minister when he replies to give his comments on that.

The Bill purports to give a limited security of tenure of 20 years. That is entirely unsatisfactory. The very least the tenant in that situation would be entitled to would be to put him in the same position as the business tenant who has been in occupation for only three years — in other words, give him a lease for 35 years. The residential tenant should have a right to no less than a lease for 35 years, renewable in the same way at the end of 35 years as is the business lease. The lease ought to be assignable and saleable by that tenant, just as the business lease is assignable and saleable. The tenant may wish to change his residence, and he is not obliged to be chained there. He has a vested interest by reason of his very long occupation there and, if he decides to move or is constrained upon to move, he ought to be in a position to sell that interest.

The whole structure and concept of this Bill when it comes into operation will give rise to a remarkable multiplicity of litigation and to the employment of solicitors, valuers, possibly barristers and perhaps actuaries because some of these requirements might call for actuarial assistance. Certainly, valuers will be called for. The tenant will require a valuer, as will the landlord. The valuers will be giving conflicting evidence about the correct and appropriate rent applicable to the premises. The tenants we are seeking to protect here are not in a position to gear themselves to meeting the organisation and the legal and valuer costings that are essential if their case is to be presented properly to a court under the terms of this Bill. The Bill contains a limited provision dealing with the question of the costs, but it is entirely discretionary and inadequate. It covers only an application by a landlord. The tenant may get the costs. Will his valuer's fee be covered? Is he in a position to get a valuer? Will the whole cost be paid? And, so on. It highlights the urgent need for a comprehensive free civil legal aid scheme. This is a classic example of where tenants of rented premises should be in a position to call upon the services of a comprehensive legal aid scheme which will put at their disposal what they require urgently not only in terms of legal assistance but of the assistance of a valuer also.

One wonders again about the advisibility of case after case being heard in the District Court with an endless procession of solicitors, valuers and landlords queueing for case after case. It will be a bonanza for those who practise either on the legal side or on the estate agency side, but it will not provide an admirable system of justice or a fair and efficient result in its administration. It would be far better to have a skilled tribunal which would have on its board of assessors a valuer or two who would deal with valuation aspects without having to call in separate valuers in individual cases.

I sympathise with the unfortunate district justices who will have to try to assess rents in these cases. It must be remembered that a district justice may be assigned perhaps 20 to 40 cases in a day. Not for them the luxury of the Supreme Court in having several weeks available to go into the details of just one case. District justices have long lists of cases which they are obliged to get through. In dealing with the assessment of a fair rent, the simplest part will be in regard to the nature, character and location of the dwelling. The district justice will hear evidence on this point from the valuers for the landlord and the tenant and possibly split the difference between them. That is what used to happen under the old legislation. He arrives at a figure and then proceeds to the next test relating to the means of the landlord; perhaps he will add something on account of that. Then he comes to the means of the tenant; perhaps he will take away something on this account. Then he must consider the date of purchase by the landlord: maybe he will add on again. At the end of this procedure one wonders whether the net result will be fair.

My final point concerns the constitutionality of this Bill. This House finds itself in a very unedifying situation because we are considering legislation which is under a cloud. There is an unreal atmosphere because most of us feel that there is a very large question mark over the constitutionality of the Bill. In introducing the Bill the Minister indicated that he had legal advice to the effect that the Bill was constitutional, but such advice was given also to the previous Government in respect of the earlier Bill. The situation in which the plight of these unfortunate tenants is being bounced back between the Oireachtas and the Supreme Court would be comic were it not for the tragic position in which these tenants are left.

The sensible thing would have been for the Minister or his predecessor to have brought in a holding Bill to freeze the situation for several months and state his intention of bringing in legislation and going to the country in a referendum to validate it under the terms of the Constitution. That is what must be done at the end of the day. Why not do it now? It would be remarkable if we had to bring in legislation on this matter some months from now and then hold a referendum. The Taoiseach has indicated that he intends to have a referendum on an issue which is not an urgent matter. Could this provision not be combined with that?

Mr. B. Allen

I am somewhat at a disadvantage in speaking on this Bill in that most of the previous speakers are members of the legal profession. I speak, however, as the representative of a constituency which has a large number of controlled tenancies. I have an advantage in understanding the position in which tenants find themselves because at a very early age I faced eviction because of defects in legislation. I have a certain affinity with tenants who will be affected but I also recognise that many landlords have been very badly affected by the present situation.

In Cork many elderly people are being harassed by landlords to pay increased rents, even though they are still covered by the temporary Act. I was informed this morning that the Southern Health Board have been receiving many calls during the past few weeks for financial aid. Section 23 allows for the compensation of tenants who will be affected but I have been advised that present legislation in relation to supplementary welfare allowances will not provide adequate cover because the maximum payment allowed is £5. I would ask the Minister for an assurance that this matter will be reconsidered.

I am unhappy that the Department of Social Welfare are to be given the responsibility for compensating tenants and I should prefer to see the responsibility formally laid with the Department of the Environment. The budget provision of £6 million is clearly inadequate and should be closer to £14 million this year. I contend that when this Bill becomes fully effective the necessary figure will be in the region of £30 million per year. The implications for the staffing of health boards must be considered, as must the embargo on the recruitment of community welfare officers.

We must ask who is to receive the money that will be gathered from the taxpayers. A number of landlords have been badly affected by existing legislation but many speculators, anticipating the introduction of new legislation, have bought up properties and are now awaiting a bonanza.

Speaking last December on the previous Bill, I expressed reservations about the suitability of the District Court system for dealing with disputes between landlords and tenants. I pointed out that 75 per cent of the people affected are over the age of 60 and that going to court will have a traumatic effect on them. The courts have not the personnel or expertise to treat the problem in the proper manner and during the debate last December the then Opposition were anxious to have an alternative system. I would ask the Minister to consider again the early establishment of a rents tribunal because this is the only way that people can be fairly treated. I find it very difficult, because of my experience, to go along with this Bill. I cannot agree with a Bill which has been drafted to accommodate a Supreme Court decision which has put the law of property before the rights of people and a decision which deemed unconstitutional the phasing-in of rent increases. The Supreme Court decision is a dangerous one.

An Ceann Comhairle

The Deputy is not permitted to criticise the Supreme Court decision.

Mr. B. Allen

Am I permitted?

An Ceann Comhairle

The Deputy is not.

Mr. B. Allen

I am not criticising. I am giving my opinions on it.

An Ceann Comhairle

The Judiciary are exempted and we cannot criticise them.

Mr. B. Allen

I have to comment when I feel the decision is making Members of the House very irrelevant in the eyes of the people. If we do not say what we feel it is very dangerous for the country. I feel, by our actions here today, the House will become irrelevant in the eyes of the people. We were elected to represent the views of the people. It is a major issue who is really making decisions affecting the people.

An Ceann Comhairle

We cannot interfere with the court's interpretation. Members of the Deputy's party stood up and deplored such a criticism yesterday by Members of the House.

Mr. B. Allen

I have to put my own views.

An Ceann Comhairle

The other Member who spoke yesterday and was criticised gave his own views and the Deputy's party deplored that Member's criticism.

Mr. B. Allen

They deplored the extent to which he criticised them.

An Ceann Comhairle

The Constitution gives power to the courts to interpret the law. The only thing we can do is make new laws and hope they will be constitutional.

Mr. B. Allen

We should not be drafting Bills to fit interpretations of the Constitution by the Supreme Court. If the Constitution affects the lives and rights of people instead of drafting Bills, which I believe will be only temporary Bills, we should look at the Constitution. I fully agree with the views put forward by Deputy Taylor that if this Bill is passed today it should be only a temporary Bill; the Government should have a hard look at the Constitution and examine if people's rights are being affected by it and if we find that people's rights are being affected an early referendum should be held on it. I hope, like Deputy Taylor, that a subsidy is given to tenants as a right, that they will not have to go cap in hand to seek one. I hope it will be given to them as a right and that the rights of the people will be protected.

Mr. B. Desmond

I will be brief because I am sure that Deputy Cosgrave like myself wishes to bring to the attention of the House the situation which affects many of our constituents in Dún Laoghaire and South Dublin who are directly affected by this Bill. I wish to confine my comments to three aspects of the matter.

Many Members of the House have not paid due regard to the precise judgment issued by the Supreme Court with particular reference to the findings relating to section 9 of the referred Bill on which the Supreme Court has just given judgment. We should put it on record that the court has accordingly come to the conclusion that the provisions of section 9 of the referred Bill would constitute an unjust attack on the property rights of owners of controlled dwellings and would, accordingly, be a contravention of Article 40.3.2º of the Constitution. The other vitally important section in the judgment of the Supreme Court relates to two other sentences in the judgment which states:

On the assumption that undue hardship is likely to be caused in some instances, a question may arise whether such hardship would amount to an unjust attack upon the property rights of the tenant contrary to Article 40.3 of the Constitution, or would amount to an unjustifiable treatment of such tenant in contravention of Article 40.1 of the Constitution.

The court dealt with that question and said:

Because of the decision the court has already reached, it is unnecessary to consider this matter further. However, having regard to the obligation imposed on the State by the Constitution to act in accordance with the principles of social justice, the court recognises the presumption that any such hardship will be provided for adequately by the State.

This is the nub of the judgment. I want to take one final sentence from this very interesting judgment, which states:

In the absence of any constitutionally permitted justification, this clearly constitutes an unjust attack upon their property rights.

That is the question of the five years section 9 referred to. I will repeat the sentence because this has been ignored by some Members of the House. It reads:

In the absence of any constitutionally permitted justification, this clearly constitutes an unjust attack upon their property rights.

This brings me to my conclusion in relation to the judgment. I firmly believe we need a referendum on the property sections of the Constitution. The President has considered this Bill, the Council of State have considered it — I am a member of that particular body like the Ceann Comhairle — and the Supreme Court have considered it and found the matter to be unconstitutional.

An Ceann Comhairle

I am sorry to interrupt the Deputy but I am sure he realises that only 10 minutes remain and the Minister has to reply.

Mr. B. Desmond

I will finish in two minutes. We need a referendum to revise the sections relating to property in the Constitution. That referendum must introduce a new section in the Constitution which, while recognising the basic rights of property, must also ensure that the State has the right to arbitrate in a socially just manner between the respective rights of property owners and tenants. The State has the right to get involved in that area. That is the nub of the need for a constitutional referendum. I deeply regret that the Taoiseach has not seen fit to start the process of an all-party review of the Constitution because I have no doubt that successive areas of rent legislation and a range of other aspects of legislation will be affected by that particular section.

I regret any attack on the Supreme Court and the members of the court on the work they have done. The Supreme Court, the President, the Council of State and this House must act within the Constitution. I regret that any Member of this House should attack members of the court in the way it was done. I am sorry time does not permit me to elaborate on this but I know that Deputy Cosgrave wishes to speak also. We need to have a constitutional referendum on the question of property rights and the quicker that is held the better in the interests of the country. The Taoiseach will have to bow to that. Since apparently we are going to have referenda later in the year we should take the opportunity of having a referendum on this matter.

Mr. L.T. Cosgrave

I appreciate the Minister's difficulty in bringing in this legislation as I did in the case of his precedessor. As Deputy Desmond said, we may be trying to reconcile the irreconcilable. If this Bill is submitted at the President's discretion to the Supreme Court it may be that some part of it may be found yet again to be repugnant to the Constitution and we may find ourselves in this House discussing the question of holding a referendum to amend the Constitution, providing for the insertion or the omission of certain property rights.

What we are trying to achieve here is to continue the rights of tenants to have security in rent-controlled properties at a certain level and to give them security of tenure at some fixed rent. On the other hand, in the light of the Supreme Court's decision we must recognise that landlords have certain rights. I represent the constituency of Dún Laoghaire and in that area many tenants are wondering what they will face in the future. There are also landlords who have been affected by this matter during the years. No matter what we may say about some landlords who may have obtained exorbitant rents for dilapidated premises, there are many other landlords who have received only a token rent during the years. Perhaps when the rent was fixed 20 or 30 years ago it was adequate but it is not adequate now. The added onus on such landlords to repair the premises is totally ridiculous. One pound nowadays would not pay for the paint, never mind paying for substantial repairs.

We must recognise the rights of both sides. If a District Court decide that the rent is not adequate and that the landlord is entitled to an increased amount this House will have to consider giving the necessary protection to tenants, whether by providing some subsidy or alternative accommodation. There will be major difficulties in this area as a previous speaker pointed out. I should like the Minister to tell us if the decision of the District Court will be the final one. Will the tenant concerned be put in the invidious position of having to go through a lot of red tape and of having to go through a means test in order to get help to pay the additional rent?

Section 13 is very wide and is open to many interpretations. Even if there are additional district courts provided, there will be several thousand cases to be dealt with and I foresee chaos developing. I can see landlords being well represented and giving the impression that they are entitled to get the premises. There will be major problems in this area.

I welcome the proposal of the Minister to extend the provisions of the Temporary Provisions Bill. This at least will be some kind of safety net. I think it would be beneficial in this case if the Bill were sent to the Supreme Court where I hope it would be found constitutional, although I have some doubts about this.

Minister for the Environment (Mr. Raphael Burke)

I thank Deputies who have spoken in the debate. No one will argue that the problems with which the Bill strives to deal are anything other than difficult and complex problems. Unless provisions on the lines of the Housing (Private Rented Dwellings) Bill are enacted, about 30,000 tenants and their families will be faced with great uncertainty about the future possession of the dwellings they have occupied for so long. This Government are determined that measures must be taken to avoid the social disruption that would ensue. There are those who suggest that rather than social disruption it would be social upheaval.

The Bill before the House is a balanced measure that is in line with the common good. It gives reasonable protection to tenants and allows landlords a just and proper return from their dwellings. The provisions in the Bill will redress the injustice landlords have endured over a lengthy period and which led to the decision of the Supreme Court.

Perhaps surprisingly the Bill has attracted much comment not only in this House but in the media. Representatives of the landlords have attacked the Bill on the grounds of the restraints it imposes on them. Representatives of the tenants have taken issue with certain aspects of the Bill not to their liking. The Bill is neither pro-landlord nor pro-tenant in its approach. It is a balanced set of proposals that takes account of the constitutional advice available to the Government and of the terms of the judgment of the Supreme Court. It is manifestly obvious that in face of the judgment of the court the benefits so long enjoyed by tenants of controlled dwellings could only continue for the limited period required to enact permanent legislation. Equally, the Government have a responsibility in line with the pledge in the Constitution that the State should safeguard with special care the interests of the weaker sections of the community and to protect tenants of controlled dwellings, many of whom are among the poorest members of the community. The manifestation of the Government's concern in this regard is the provision in section 23 of the Bill for the payment of rent allowances to tenants faced with hardship in paying increased rents. I shall come back to this later. I will attempt to deal with the most significant points raised by Deputies.

Like the previous Bill, the most serious question raised on both sides concerned the constitutionality of the Bill. This is a matter to which the Government have given considerable attention and the advice available to them is that the Bill is in conformity with the Constitution. The Bill has been prepared bearing in mind the criticism of the Supreme Court of particular aspects of the former code and the terms of the court's judgment on reference to it of the 1981 Act.

Much comment was made on the operation of section 13 of the Bill. Deputy Fitzpatrick (Cavan-Monaghan) contended that the rent set must be the market rent if it is to be in accordance with the judgment of the Supreme Court. I do not agree with this interpretation of the Supreme Court judgment. That judgment held that the rent must be the just and proper rent, but what was unconstitutional was the provision which phased in the just and proper rent. That there remained some discretion as to what constitutes a just and proper rent is a reasonable interpretation. This interpretation is supported by the comment by the Supreme Court in its earlier judgment in the Blake-Madigan case that part of the reason the 1960 Act was an unjust attack on property rights was that the Act did not take account of the means of the landlord and tenant and this is taken into account in this Bill.

I agree with what Deputy Fitzpatrick (Cavan-Monaghan) said about Deputy Quinn's attack on the Supreme Court. I do not propose to go into detail except to disassociate myself from Deputy Quinn's unwarranted criticism. I also agree with Deputy Fitzpatrick (Cavan-Monaghan) that in legislating we must operate within the Constitution because we do not help the tenants by producing legislation that is unconstitutional. This imposes constraints on me in bringing forward this legislation, but I am optimistic that this Bill succeeds in being within the Constitution.

Following from comments on section 13 it is natural to deal with the subsidies scheme. As I said in my opening speech, I am not in a position to spell out the details but the Minister for Social Welfare, who will administer the scheme, will announce the details in the near future. In the normal course of events it would be usual for such subsidisation to be provided for in legislation sponsored by the Minister for Social Welfare. However, because of the time constraints I have included them in this Bill. Its inclusion is a major feature of this Bill.

Deputy Barry asked about the budget provision of £6 million. It is true that the January 1982 budget included a provision of £6 million to provide a subsidy scheme for tenants in controlled dwellings faced with hardship and paying increased rents, and this provision was continued in last week's budget. Whether the £6 million will be sufficient to meet allowance payments this year depends on the number of cases coming forward for subsidy, the speed with which the rents increases are sought and secured and the amounts of the rents fixed under this Bill. This is a matter on which the Minister for Social Welfare will be keeping a close eye.

The formula for fixing rents under the Bill is totally different from that set out in the 1981 Bill. This will make a difference in the amount required for the present year as the gross rent fixed will be lower under this Bill than under the previous Bill. There need be no concern that the Government will not live up to their responsibilities to provide tenants suffering hardship with the assistance they need.

An Ceann Comhairle

I have to remind the Minister that we were to start Committee Stage at 1 o'clock.

Mr. Raphael Burke

Most of the points I wanted to make could be dealt with on Committee Stage.

Mr. Quinn

In his opening speech the Minister referred to extra district justices. Perhaps he would respond to that point.

Mr. Raphael Burke

The first amendments on Committee Stage refer to the rents tribunal. Perhaps at that stage I could answer any questions that might arise. At this stage I am tied by the rules of the House. Could I ask the Chair's indulgence for a few moments to finish Second Stage?

In bringing this Bill before the House I have been striving to achieve a solution to a difficult problem in a manner that would be fair to both landlords and tenants. I also had to do so in the knowledge that the time available was limited, given the 25 April deadline and the fact that the Government came into office recently. It is not enough for Deputies to express concern about the plight of tenants; we must take positive legislative action. No one can be happy while this legislative vacuum remains. The temporary legislation does not provide a satisfactory solution to the problem. If the constitutionality of the temporary legislation should be impugned — and action in that direction has already been started by landlord interests — tenants would be left in a very perilous state in the absence of legislation, such as this Bill. I ask for the co-operation of the House, which has already been promised, as we go through Committee and Report Stages.

I would like to thank all Deputies who contributed to this debate for their interest in this highly complex and controversial legislation.

Question put and agreed to.