I move amendment No. 13:
In page 7, lines 35 and 36 to delete "the county registrar for the area in which the land is situate" and substitute "the Court".
In all these amendments I am seeking to do what I understood the Minister indicated he would accept on the Committee Stage. I am not going to delay the House by repeating what I have said already in relation to the position of the county registrars under this Bill. The Minister has said there is almost an infinite variety of relationships and complexities in the law of landlord and tenant. If one looks at section 3 of the Bill, one sees that a county registrar will have to determine whether a person holds land under a building lease or under a proprietary lease and a whole lot of other things. He will have to make up his mind what to do in the case where the originals of leases cannot be got and where only copies of them are to be found.
I am not so much concerned with that aspect of it. In this Bill we are undoubtedly dealing with property rights. I do not say we are not dealing fairly as between landlord and tenant, but there will be cases where disputes will arise. Where these disputes arise, it is my clear view that these disputes should be litigated only before a county registrar if there is agreement between the parties that he shall be the arbitrator; and if there is not agreement as to the manner of determining these disputes, they should be litigated in the courts.
There are other provisions in the Bill which prevent any undue costs being piled up against either landlord or tenant. It is always necessary in this House, and I think elsewhere, for people who are lawyers to disclaim any financial interest in amendments of this kind. There will not be any money in the operation of this Bill as far as the appearances in court are concerned. Even if there were, to safeguard against that, I have provided in one of these amendments — I think it is one of the group we are dealing with at present — that if we allow these matters to go to court, the hearing will be in chambers. That is the procedure the Minister himself devised and the House accepted in respect of the Succession Act — that a speedy, not costly and effective means of determining disputes between parties is by having them dealt with in chambers before a judge.
I cannot understand how it can be contended that where you are dealing compulsorily with property rights, where you are compulsorily alienating the property rights of another person, that does not come clearly within the provisions of the Constitution which guarantees the right of private property to all citizens. That being so, I am concerned that, bit by bit, the powers of the courts in this country are being eroded. That concern is not mine alone; it is a concern of the members of the legal profession of all shades of opinion and all Parties that this gradual erosion is taking place. The disquieting thing about it is that nobody seems to mind. This type of procedure adopted here is like a bit of rust occurring on a piece of metal; nobody takes much notice until one day you find it has corroded or is corroding the whole piece of metal, whether a bucket or a coal scuttle or something else. One finds at that stage, as metal polishers will tell you, it cannot be arrested. Here, bit by bit, we are getting away from the court and from the protection which the Constitution gives to private and personal rights such as the right to property.
For quite some time I was disposed to take the line that there is nothing much that one person can do about it even with the support of my colleagues on this side of the House, but I have been pressed by people of varying shades of political opinion to speak out against this type of provision. I do so voluntarily because these are my views but I do so with more vehemence and more confidence because I have been asked to do so by people of all shades of opinion. I deeply regret that the Minister for Justice who is concerned, who should always protect the rights of private individuals from attack from criminals, by unjust laws and their operation, should be himself the instrument which, in my view, is gradually bringing about a diminution of the powers of the courts.
The only reason one needs to have respect for the courts is that ultimately the protection of private rights and of our democratic system lies in the courts, and if we remove bit by bit the power of the courts and make these inroads into the Constitution, the time will come when we shall wake up to find that the courts have been paralysed or that their area of activity has been greatly attenuated and that many things which people ought to be able to redress in the courts founded under the Constitution and established by Act of this Parliament are being determined by civil servants, whether of the Department of Justice or Social Welfare, or by local government authorities or elsewhere. We shall find that property and other rights that people have are being determined by civil servants who are not answerable to the public and who cannot be got at. One finds that happening increasingly and it is for that reason I put down these amendments.
On the previous occasion I think it was Senator Nash on the other side who suggested that the District Court might be the most appropriate court in which to have these matters litigated as between the tenant and the landlord. The Minister said that if he was having any court, it would not be the District Court for a variety of reasons which he gave, but that it would be the Circuit Court. It is for that reason of ever wanting to meet the Minister as the Minister has, in some cases even on this Bill, met us, that I put down these amendments to provide that all these matters would be determined by Circuit Court judges through the inexpensive procedure of having them dealt with in chambers.
Doing that, I know, is not gratifying the Circuit Court judges who, I am sure, would not thank us for the increased work that we are making as a result of this legislation. At the same time, I do not think that will have the slightest effect on their position — they will administer the law as enacted by the Oireachtas — but what I am trying to do is to go the distance with the Minister of saying that these matters should be dealt with in the Circuit Court. I do not mind if we go the further distance of saying that there will not be an appeal to the High Court from the decision of the Circuit Court judge in chambers. What I am concerned about is that we shall be seen, in this piece of legislation when dealing with a very fundamental thing specifically provided for in the Constitution, to ensure that property rights are being disposed of and finally determined by the courts.
The Minister on the last occasion argued that the county registrar would be concerned under this Bill merely with determining values. That was an oversimplification. It is the kind of clear expression of view of which the Minister is so admirably capable from time to time. That, of course, is not the position. He will have to determine apportionment and leases; construe various leases and he will very often have to decide whether the person is properly the tenant as he alleges he is when somebody may say: "You are not the tenant; somebody else is the tenant." He will have to construe the whole law of property and landlord and tenant law as well as the very difficult sections of this Bill which is not a simple one in some provisions of some of its sections. It is not correct, therefore, to say that the position of the county registrar will be the same as the position of an arbitrator under the Land Acquisition and Compensation Act of 1919 who is determining the value of property. That is a very simple matter if he is determining a whole lot of rights and the amount for each person where there are superior interests involved, the amount that each person is entitled to get.
I cannot think of anything more clearly involving property rights than this Bill. It is well recognised in the law of landlord and tenant in relation to ejectments that the tenant is entitled to plead every defence in law and equity. The reason is that you are dealing with the home or business of an individual. Equally in this Bill we are dealing with the homes and businesses of individuals and perhaps their livelihoods in the case of landlords. I can think of nothing more fundamental in the law of property than that with which we are now dealing. I hope at this stage that the Minister will come the distance in meeting us. If he finds afterwards that this is not a workable system, the matter can be looked at in another way but I am not prepared to agree that a person who is not sworn to administer justice according to law — which the county registrar is not — and that a person who may have for 20 or 30 years, depending on the length of time since his appointment as county registrar, very little acquaintanceship with the law of landlord and tenant, should be constituted the authority under this Bill to determine property rights.
That, to my mind, has been and should always be a function of a court, especially where as in a case like this, the property is being compulsorily taken from the landlord. We have agreed upon that but, having done so, we should decide that what remains to be determined — who is entitled to what amount of money to be paid — should be the function not of a person who is not sworn to do justice but of those who are sworn to do justice, the judges of the courts. That is what they were created for and what they are required to do. I have spoken rather too lengthily on this. I trust the Minister will accept this amendment and I hope that the nominee of the Incorporated Law Society, Senator Nash, and my other colleagues on the other side of the House will lend their powerful support to the arguments I have been making in favour of this amendment.