The meeting is now in progress.
Procedure
Question again proposed: "That Section 2 stand part of the Bill."
We have five substitutes. I understand that in the event of one of the members who has been substituted for here turning up, the stand-in will leave. We will commence proceedings where we left off yesterday, that is, section 2 of the Housing (private ? Dwellings) (Amendment) (No. 2) Bill, 1983. It will be recalled that we adjourned our meeting last night on the understanding that Mr. Quinn would circulate the Attorney General's opinion to the members of the Committee. In his response to the Bill he undertook to circulate copies of the legal advice which was being made available to them. I understand now from the clerk of the committee that the Attorney General's advice is not being made available to the committee. It certainly has not been circulated and we have not received the legal opinion of the Attorney General, though we were assured last night we would be given it. The Minister, Deputy Fergus O'Brien, is here. He has taken the place of Deputy Ruairí Quinn in the Department. There has been no contact since from the Department. The sponsors of the Bill have a legal opinion which, I understand, it was difficult to get together fairly fast. Unfortunately it is not typed out and it has not been decided whether or not to circulate it. The fact is that the commitment was made but it has not been fulfilled by the Government side.
Yes. First of all, I apologise to the committee. If the commitment was given that it would be circulated it was given in good faith, but the Attorney General's advice is confidential. I am personally not in a position to circulate his legal opinion. He is there to advise the Government and that advice is of a confidential nature.
I would like to make one point. The Minister was prepared to go ahead last night and discuss the document he had here from the Attorney General. Could it now then be taken as confidential?
He offered to read it out. I stopped him because we would not be able to take down all the references sufficiently quickly.
I think, Mr. Chairman, that he qualified what he said by saying that, perhaps, there might be certain circumstances whereby at a later stage he might be requested to take a certain line and in that event circulation might prejudice the line he might take. He wanted to put the record straight.
I do not have the record and I do not know what other members recall.
He offered to read it. He started to read it at one stage and I stopped him because it was quite long and complicated.
He offered to read it, but it was decided in order to enable the members to take in the recommendation as much as possible, it should be said the Minister did agree. He did say there might be some parts of it he might not be in a position to give his opinion on.
That was because the document he had in front of him was not written in a form for general circulation. I said the document which we had was not suitable for general circulation and would need to be amended. His comments in regard to amending his own document only refers to the form in which it had been written and not to the actual legal content.
I was very surprised at the turn of events because as Chairman of another committee of the House — the Building Land Committee — I can say we were delayed for nine months waiting for the Attorney General's opinion, which was promised to us by the Minister, Deputy Quinn, who was also a member of that committee. Having waited that length of time it transpired that the Attorney General was not going to make his advice available to the Building Land Committee and the deliberations of that committee were delayed for nine months from March to October before we got his decision. I asked in the Dáil on the Order of Business, after agreeing to this special committee, if the Attorney General's opinion on the constitutionality of the Bill would be made available to this committee and I did not get any answer at that time. When the Minister attended the meeting yesterday he made a commitment and we adjourned the meeting on the understanding that he would circulate the Attorney General's opinion to us. In view of the refusal of the Attorney General to circulate his opinion on the Kenny Report to the Building Lands Committee and the delay of several months in arriving at that decision and then the commitment last night that the Attorney General's opinion on a subject matter of this Bill would be circulated, now we are told that it is not going to be circulated, and I am sure members will agree that this frustrates the work of the committee to the detriment of the tenants whom we are trying to assist, who have their cases at present before the District Court and are anxious to get them transferred to the tribunal. I am sure the committee are anxious to know where will they go from here? We are still discussing section 2 and the only issue that seems to be before the meeting is whether what is proposed in the Bill is constitutional or not?
Could I make the observation that the fact that the Attorney General is not prepared to allow his views to be made known to the committee seems to indicate that his views would not prevent the enactment of the Bill. That is what has been suggested. We have gone into this matter in some detail in the very limited time that is available and the view of three people, including for what it is worth, the former Attorney General is that this Bill is constitutional. Some people may be under the misapprehension that if an Attorney General advises against the enactment of a provision that is the end of it, that he is some form of omniscient court. I know that that is the view that is taken in the Civil Service, who believe that if the Attorney General advises one not to cross the road, one just cannot cross the road. This is not the case as we know from experience. Attorneys-General have regularly been wrong in the advice that they have given to Governments as Governments know to their cost. We have no reason to believe that any advice given is more than just an opinion, which is no better or worse than any other opinion of someone of equal standing at the Bar. The giving of advice is a statutory function but the content of the advice is not statutory, even though it was often believed to be by some people.
All that is open for the Chairman to do is to allow the committee to debate these aspects of it and let the new Minister of State, who is here tonight, put forward the arguments on constitutional grounds and we will thrash it out as best we can. It is much less satisfactory than if we had been given the opinion. I must confess that I feel somewhat at fault in this matter. In retrospect I should have allowed the Minister to read it out last night because it would have gone on to the record. It is my mistake. I was not conscious of the fact that the proceedings were being recorded. If he had done that there would have been no problem at all. As members will recall from the circumstances of last night's meeting if we thought that we were not getting his opinion, we would not have adjourned at all, we would have gone on. The only purpose of adjourning was to allow the opinion to be copied and handed to each member of the committee. We are back in the situation in which we were before, except that we are worse off, because we could have had it read out to us then and apparently we cannot now. The Minister of State will simply have to argue it and we will have to argue it.
As I indicated, I regret this but the Attorney General is the adviser to the Government and he advised that this Bill is unconstitutional. If the Bill were passed he might have to go into a court to defend its constitutionality. That is a valid reason for not coming up front with his opinion at this stage.
But he could do that in relation to any Bill.
He is the Government's legal adviser and obviously the Government take his advice and consult him on the constitutionality of any Bill. They would be very unwise not to take his advice as that is why he is appointed. When the Attorney General advises that a Bill is unconstitutional the Government do not proceed with it. It is in the Constitution that if the Government are advised by the Attorney General that something is unconstitutional, then the Government do not proceed with it.
That is not in the Constitution.
We are in an unfortunate position now having spent three hours debating this Bill in the Dáil. The sponsors of the Bill asked that it be brought to a committee or passed. We asked that it be passed and let the Supreme Court take it from there. The Government requested us, at the last minute, to accept a special committee where we could debate the Bill. We accepted that. The sponsors did a considerable amount of legal research on it; we had considerable legal opinion, both from our own Members of the Dáil with legal experience and more importantly, from a number of people outside who specialise in that area. The arguments were put up last night and the Minister indicated that his only objection related to a document in front of him from the Attorney General. When the Minister proceeded to read it, to be helpful to the committee we decided to adjourn and then come back to him to get into an argument about it. The Minister is not prepared to give the information which the Minister who had been involved in this for the last 12 months was prepared to give last night, and he has now taken the attitude that it is unconstitutional because the Attorney General said so, no matter what arguments are put forward. The members of his party will vote with him so is there much point in having an argument on something when the Minister has a closed mind? He has now come in on a direction from the Government and the Attorney General and has decided not to give the information and he has a closed mind on the matter from the start. There is no point in giving our arguments when the Minister probably has a short script in front of him which says "no, no, no." Is there any logic to that type of debate? Are we all wasting our time?
We should establish the position here before we proceed any further. We understood coming in here that we were going to have the arguments put forward for and against the constitutionality of this Bill. That was the issue which arose in the House when the Tánaiste withdrew his amendment and asked if the Opposition would agree to have the Bill referred to this special committee. Are we now in the position that the Government side are not here to discuss the merits of the Bill and its constitutionality? Are we just here for the exercise of the Government in voting down the Bill? Is that the reason it was transferred here? If it was we were misled in the House.
If it was to be voted down and if there was no recognition on the Government's part that there was a need for us to do something about it, it would not have been brought into this committee. The Government had the ability to vote it down in the Dáil. They did not do that. It is not unprecedented that Governments have been guided by the opinion of the Attorney General. Opposition members, who have been in Government have, from time to time come up against the same problem. One's heart will say one thing but legal advice another. There was absolutely no doubt last night that people were concerned and shared that concern which you expressed in your Bill. Now we find that we have legal advice from the Attorney General which says that he cannot make these documents available to us. There was no doubt last night of the goodwill from Deputy Quinn. There was a recognition that we had reached an impasse, a barrier which we could not overcome. For that reason we agreed to go back and seek legal advice. As a means of forwarding this debate, would the Chairman be prepared to submit the legal advice that he has prepared to the Attorney General for his consideration? It would be a pity if we were to take sides on this issue, because it is so difficult. It is something that each of us recognises as being a major problem for the people affected by this legislation.
(Interruptions.)
I am taking note of the people who are indicating to me that they wish to speak. I have Deputy Vincent Brady down here.
Chairman, it is a great pity this situation has developed. The Minister for the Environment by referring the matter to this Special Committee did more or less indicate or agree that there were strong doubts in the advice he had received from the Attorney General. If the Minister did not have those doubts obviously he would not have referred the Bill to the committee. I think if Minister Quinn was here tonight he would feel very embarrassed about the situation. He certainly did give an undertaking last night and he did not see anything wrong in doing so. Obviously Minister O'Brien, perhaps due to no fault on his part here tonight, but following instructions, appears to be stone-walling on the basis that the Attorney General has given certain advice and the Government must accept it. The question then is why did we come here at all tonight. We have legal advice too. If the Attorney General's advice is not to be discussed what is the point in having our people here?
There are a number of problems. First of all, we are told by the Minister of State, Deputy O'Brien, that this is an unconstitutional Bill on the advice of the Attorney General. I would have thought that in any free flow discussion or argument, having said that it is unconstitutional, we would then have been given the reasons why. But it now appears that we are not to be given the reasons. The second point is that the only legal opinion available to this committee, stateable and explainable, is from the Opposition. We have a document here which states this Bill is constitutional. With the greatest respect, having discussed it elsewhere we have no doubt as to its constitutionality. The third and final point is in regard to Deputy O'Sullivan's point. He is asking us to submit our advice to the Attorney General. But the Attorney General has already advised that it is unconstitutional. We have a document which says that it is constitutional. Is the Attorney General going to come back to us and say that he is wrong?
The first point is that we are entitled to ask the Minister of State what Articles or Article of the Constitution is this Bill supposed to contravene.
I have not got the actual Article. What I am saying is that we submitted this to the Attorney General and he has informed us that it is unconstitutional. In Article 15 of the Constitution the Oireachtas should not enact any law which is in any respect repugnant to this Constitution or any provision thereof. In other words, if we get advice that it is unconstitutional——
What Article does it contravene? It will not be law until it is signed by the President.
In fairness to Minister O'Brien, he is here at very short notice and we should not lose cognisance of that fact.
As you are aware, the Bill is likely to be found unconstitutional because it removes the right of a person who probably started proceedings before the courts to have his case determined by the courts.
Could I ask you, Minister, what Article of the Constitution is contravened?
I am not so aware. It does not have to be an Article. If the Attorney General on the basis of principle decides it is unconstitutional he may do so. The fact of the matter is that, if a person starts proceedings before a court, he has a right to have that case determined by the court.
A constitutional right?
He has that right.
In Article what?
I cannot define the Article.
Might I remind the committee in regard to the alleged confidentiality of the Attorney General's advice to the Government that in the recent referendum campaign the government published the Attorney General's opinion?
Not in toto.
He went so far as to go on television and argue his point in public and say why it would not work and what was wrong with it and all the rest.
Just very briefly, I want to refer back to the reason for having this committee. I would like to point out that the reason that the Bill was referred to this committee was not because the Minister believed it was unconstitutional but because he has concern for the large number of people who are involved — the large number of tenants throughout the country who would have been affected by this particular Bill. It was referred to this committee in an effort to work out something that would be equitable and in an effort to find out whether or not it would be possible to meet the requirements of this Bill and have the cases coming before the courts referred to a tribunal. That is the real reason for its referral. The Constitution provides in Article 34:
Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public.
Article 37 provides:
Nothing in this Constitution should operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
According to that Article of the Constitution cases may be administered by non-courts, such as, for example, a tribunal, the tribunal proposed by Fianna Fáil. The tribunal is already being set up or is proposed to be set up under section 2 of the Government Bill. Equally the Government cannot claim that the idea of transfer from the courts is unconstitutional because they have already provided in their own Bill, in section 10, that this can be done by consent.
I wonder, Chairman, to take us out of this impasse, would it be possible for the committee to be informed of the general substance of the Attorney General’s advice rather than receive the verbatim report itself which might be difficult? Could we request, perhaps since difficulty has occurred in getting the word for word report of what was handed to the Minister, that the general substance and legal pointers be made available to us? I cannot see why not.
That is exactly what we were told we would get last night.
I see the implication. We will have to direct that question from the Chairman to the Minister.
I do not wish to be argumentative. I can see the full force of what you are trying to do and I am in general sympathy with it. We feel we should not get bogged down on whether the Attorney General's view was known here tonight. I certainly will consult with the Attorney General and ask him to give his opinion — though not necessarily the full text of it — in the interest of this committee, so that we can get the constitutional arguments out of the way and move on from there.
Why not do that now? That is essentially what I asked you to do when I asked you what Article it is supposed to contravene?
The man sitting in your place last night had the document there with him; it had the information. All we want is a summary of the points that were put forward for accepting his advice.
Has the Minister got a copy of the document here?
Yes
Well, surely you could summarise it?
The Minister would have to get the advice of the Attorney General at this stage before he releases any section of he advice that he has been given.
The urgency of this whole situation was to have this finalised by tomorrow, when the House rises for the Christmas recess. If the Minister is giving this undertaking to the committee, obviously there is no alternative but to adjourn until early tomorrow morning.
I am against any further adjournments. The advice is well documented and it is available in the Department. The Minister who was here last night, had read it and was representing the Government point of view that what we propose is unconstitutional. He was replaced by another Minister who has the same advice available to him. This committee was brought together as a special committee of the House to hear the Government's arguments as to why the proposals in this Bill are unconstitutional. It was clearly stated by the Tánaiste in the House when the Bill was being debated that he supports the principle of it but he was advised that it was unconstitutional. We are in committee now to discuss that one issue. What are the arguments which prove that this Bill is unconstitutional? Surely the Minister is here to put forward those arguments. If he cannot circulate a written document from the Attorney General, surely he can give us book and gospel as to what he is relying on for this opinion.
I propose that we take the opportunity of getting the Attorney General telephoned to see if we could get permission to give the general substance of his views rather than the text? The Minister is in a position here where he was told coming to the meeting not to release the text.
He need not give the Attorney General's view, he can give his own view.
Be fair to the Minister; he is only 24 hours in the position.
On the Building Land Committee what happened in that case when the meeting was informed that the Attorney General felt that he could not make his advice available direct to the committee, was that the law officer of the Department of the Environment gave his legal opinion on what was before the committee. I suggest that the responsibility rests on the Minister of State at the Department of the Environment who is present with us, to give us the legal opinion of his Department who are handling this on behalf of the Government.
I am prepared to get my law office in the Department to look at this and give the Department's legal view on it. I have not got the Department's legal view now. I only discovered late this evening that I would be attending this meeting so I had not time to consult. I am not making excuses, but it was pretty late when I was informed that I would be attending this meeting. I was out most of the afternoon at a function and I had not time to consult with the legal people in the Department.
In relation to the courts, Article 34.1 of the Constitution reads:
Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution. . ..
2. The Courts shall comprise Courts of First Instance and a Court of Final Appeal.
3.1th The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.
3.4th The Courts of First Instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law.
It is quite clear that the Constitution required the establishment by law of a District Court as a Court of First Instance, of local and limited jurisdiction, in the same way as the High Court was required to be established by law. This constitutional requirement was given effect by the Oireachtas in 1961 when the Courts (Establishment and Constitution) Act 1961 was passed into law. The long title to this Act, sets out the purpose of the Act as follows:
An Act to establish in pursuance of Article 34 of the Constitution, a court of Final Appeal, the Court of Criminal Appeal and Courts of First Instance, to specify the constitution of these courts, to provide for the vacation of judicial offices and the filling of vacancies therein, and, in pursuance of Article 58 of the Constitution, to disestablish the several Courts of Justice mentioned in that Article and to abolish the offices of the judges and justices thereof.
The Act therefore provided for the establishment of courts for the administration of justice and accordingly the Supreme Court, the High Court and Court of Criminal Appeal and Circuit Courts were established. Each court constituted a judge, while section 5 provided for the District Court. On the commencement of the first Act a Court of First Instance which was to be called the District Court was established. The District Court was to be constituted of the following judges; a judge who shall be styled the President of the District Court, such number of other judges, each of whom shall be styled judges of the District Court, as may from time to time be fixed by Acts of the Oireachtas. The judges constituting the courts are required, before taking up office to make a declaration in the presence of the Chief Justice. Every person appointed a judge under this Constitution shall make and subscribe to the following declaration: Do members want to hear it?
No. I suggest you skip a couple of pages and come to the point.
What is the relevance of all that?
That is only reciting bits out of the Constitution. When he has all that over he will make his point.
That is right.
I suggest one cannot read Article 34 without reading Article 37 in conjunction with it.
Be a little patient.
This is the fourth meeting. We have had three abortive meetings of this committee. A lot of us are under pressure attending to our parliamentary duties and it is quite frustrating for Members of the House who have given their time and who are deeply concerned about the issue which is before this meeting, to find that all of the efforts to have this matter resolved properly in committee of the House are being frustrated by the Government side of this committee. There is no lack of patience on our part. This is our fourth time assembling and we do not seem to be making a lot of progress. I do not think the party sponsoring the Bill can be accused of being responsible for any of the delays. We have shown great patience.
On a point of order, I would just like to set the record straight regarding the implication that in fact it was the Government that caused all the procrastination. I would point out that you advised the meeting not to proceed on one occasion because of the lack of recording facilities.
To keep the record straight, as Chairman I was advised that we could not legally proceed to consider this Bill in Committee unless there were facilities available for the verbatim report of our proceedings to be made. I was informed by the Clerk that such facilities were not available and we as a committee could not legally proceed with this committee. We had to adjourn, not through any wish or desire of our own; so would you withdraw that statement, Deputy?
Mr. Chairman, I withdraw the inference if you took me up wrongly but you implied that in fact all the procrastination was caused by the Government side and I do not withdraw that because the Government in fact, could not possibly have deliberately unwound the wires that are over our heads to the extent of a possible break-down on recording.
That only concerns one meeting because of the procedure in appointing a Chairman.
The last few meetings were abortive.
We have at the moment verbatim recording and when this volume is finally published it will be a bit thinner because rarely has a meeting been reduced to the level of farce that we have seen today. It is really dreadful. Could I make the suggestion to the Minister of State that on all the early parts of the opinion which was read, the preamble setting out the Constitutional and legislative provisions, and so on, the nittygritty will be contained in the latter part of the document and will he read that to us and we will know what the argument is then?
Chairman, you did say you had someone who advised you on this particular issue. You are arguing here regarding his opinion and I would suggest now that you tell this committee the legal opinion that you have in your possession for consideration. Armed with that the Minister can go to the Attorney General with the points made in your document.
I would like to know whether the deliberations of this committee are meaningful inasmuch as is the Minister stating that because he finds the Government find the contents of the Bill unconstitutional that the Government have absolutely no intention of approving of the Bill because, if that is so, there is no point in our proceeding with further discussion if the Government side have already made up their minds. We are here to debate the points.
I do not see this as the black and white situation the Chairman is trying to paint. First of all, you have an opinion and I believe that you should submit that opinion and, as Deputy O'Sullivan indicated, I will bring it to the attention of the Attorney General. I am prepared to argue the case with the Attorney General.
Why not argue it here? That is the object in having this committee.
I have not got your legal qualifications.
Argue it with the Attorney-General? He is alleging that it is unconstitutional. A Bill is constitutional until it is proved not to be. The onus is therefore on whoever suggests that it is not constitutional to prove that. Before he can prove it he will have to put forward arguments to that effect. So far we have heard no arguments. All we have heard is the rather silly situation that you say something is wrong and the other person asks why it is wrong and the first person says I will not tell you.
Chairman, I would suggest that you have a case to put before this committee and you have not yet presented it to the committee. You told us what the Attorney General is suggesting is not unconstitutional. I would like to hear the argument you have to put forward in support of that and you are refusing to do this.
There is no difficulty in that.
The onus is not on us, Chairman. The onus is on whoever suggests that a Bill is unconstitutional to make that case. All we have had is the attitude of a surly child almost: "I will not tell you. You will just have to take my word for it". This is a Committee of the Parliament of the Irish people.
I respectfully suggest that the purpose of the exercise is to see whether or not it can pass this Bill and not to see whether the Attorney General's opinion is unconstitutional. That is the point. It is not for the purpose of interpreting the Attorney General's opinion we are here. It is for the purpose of discussing this Bill.
There is a misunderstanding here. I do not think that there could be any basic objection to the substance and the general views of the Attorney General being known to us. As it arose last night, they were reading actually the text. I think perhaps the objection is based on the actual text being read out here.
Just to support that point, two or three pages of the opinion have been read tonight.
Could I ask a question? Are we here to discuss the Attorney General's opinion or are we not? We are told that we cannot be given it so what are we discussing here?
I know that, but the text and the substance are two different things.
Then what are we here discussing? Let us be clear about it.
We are here to hear the opinions of those members of this committee who believe that what is in the Bill is unconstitutional. We are here to hear those views.
When are we going to hear them? Can we find that out?
Mr. Chairman, if you look at the agenda we are here to consider the Bill and, secondly, to arrange the date of the next meeting.
We adjourned last night to enable the opinions to be circulated and for no other purpose.
On the proposition of a member of the Cabinet.
Given in good faith but he is not infallible.
I am prepared to argue on the constitutional point, Mr. Chairman, from now until midnight if necessary. I have the means to do it. The manner in which these two opinions I have are drawn is to counteract any suggestion of unconstitutionality. Necessarily, those who gave the opinions had to speculate as to what were the grounds on which the Attorney General was alleging the Bill was unconstitutional. To some extent the opinions are speculative because they are dealing with matters that the Attorney General may not have raised at all. In fact the people who prepared these opinions found some difficulty in trying to advocate precisely what Article the Attorney General would be relying on. The Minister of State, Deputy Quinn, last night offered to give me a list of cases that were referred to in the Attorney General's opinion and foolishly I did not let him read them out. If I had, we would not be in this situation now because we do not know what we are talking about. This is the first time I suspect that the committee or the House itself has ever had to deal with a situation in which someone says: "No, that is wrong" but will not say why.
It is a ridiculous situation.
It is farce to the ninth degree now.
There are two things I can do. I can continue to read some of this but I would prefer if I had consultation with my law agent in the Department to get his view on the matter. It is reasonable and fair to do that.
I disagree with that.
If Deputies are interested in making progress——
We are interested in making progress.
That is the way to do it.
The Minister should be allowed time to consult with his law officer in the Department. That is a reasonable request.
It is but it would have been more reasonable if the Government had allowed Deputy Quinn to continue his membership. It is unreasonable to expect Deputy O'Brien to have picked everything up in the last hour or two.
It was even less than that.
That does not show much respect for the Committee.
(Interruptions.)
There are elderly poor people waiting for this committee to determine the contents of this Bill, to see whether they will be able to benefit under it or not. We should all bear that in mind.
Could I make the point that the timetable of this Committee was examined very carefully last night and the Bill, if it is going to be passed and is not going to be voted down by the Government without given reason, will have to go through this committee tonight, will have to have its Fourth and Fifth Stages in the Dáil tomorrow and will have to go to the Seanad on Tuesday. The Dáil does not sit after tomorrow and the Seanad does not sit after Tuesday. If that timetable is not adhered to, the Bill will not be passed until the end of January or maybe into February. In the meantime there are hundreds of these cases before the court. We were told last night that a case has been started but I am advised that many of the justices, as is their right, are not adjourning the cases but are continuing to determine them, so that every day that passes more and more people are being treated in a way that I thought this committee was unanimous in trying to prevent. We cannot drag this thing out indefinitely. The fact that we have delayed already has cost maybe a hundred people a lot of money that they might not have been called on to pay if the Bill had been passed, say, a week ago.
To get over the impasse, the Minister has asked us if we would allow him to consult with the law agent in his Department and I accept Deputy Doyle's suggestion that we adjourn for an hour. Some of us might like to get something to eat anyway.
This committee is the nearest thing to a jury I have seen. I will be sitting here as a layman listening to two legal opinions and I will have to make my mind up as to which is right. As a Government Deputy I have to and will accept, the Attorney General's advice. They are the facts.
What about the question I asked a quarter of an hour ago? Is there any point in listening?
(Interruptions.)
If that is the opinion of all the Deputies who are opposing the Bill, there is no reason why we should continue.
Everybody is getting annoyed. I made a statement of fact. The people around the table here, laymen, will hear two sets of legal advice.
To qualify that in relation to what Deputy McLoughlin and Deputy O'Malley have said, if a case is stated in the courts, does the matter of sub judice not come into it?
No. That relates to something else.
I accept what Deputy O'Malley said. Unless we clear this up tonight, we have a problem. I suggest, further to what Deputy McLoughlin said, and accepting the Attorney General's view, we can also hear the anti-view that will be presented. If we in this committee feel that the anti-view is reasonable and we can be convinced by good points, I see no reason why we cannot give them full consideration.
(Interruptions.)
People got me wrong. I did not say that. I said that I had been put in the position where I was to hear two legal advisers. But, Chairman, the law officer must be a civil servant. It is very near Christmas, and if he can be got in an hour——
The law officer is not a civil servant.
The Department are well aware that their Minister is present at this committee which is discussing a legal, constitutional issue. The law officer must be on call and if he is not, somebody has fallen down on the administrative side. The Minister has officials present with him.
I would require a two-hour adjournment.
We will accede to that if the Minister feels he needs two rather than one hour. I would appeal to the Deputies to approach this matter with an open mind; otherwise we are only going through a charade. I hope that is not what is happening.
You can be assured, Chairman, that we will do that. But we would like, first and foremost, to hear your argument.
We have to know the Attorney General's points. I would also like before we come back, if members on our side could be told what Articles of the Constitution are contravened by this Bill. We would like to have the actual legal references to justify the claims that this Bill is unconstitutional. It is very unsatisfactory from our point of view that the only grounds you have is that the Attorney General said so. There must be legal grounds. I expect that that will be presented to us when we resume at 9 o'clock.
The committee adjourned at 7.05 p.m. until 9 p.m.
The Committee resumed at 9 p.m.
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Deputy |
B. Ahern |
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D. Andrews |
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V. Brady |
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R. Bruton |
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M.J. Cosgrave |
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Durkan |
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T. Leonard* |
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McLoughlin* |
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F. O'Brien*Minister of State at the Department of the Environment |
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Deputy |
O'Malley |
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O'Sullivan |
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Owen |
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Timmins |
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Wallace |
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S. Walsh* |
Deputy Molloy in the Chair.
* In the absence of Deputies Lenihan, the Minister for Labour, Glenn and Ahern respectively (for part of meeting) (S.O. 70).
We will reconvene the meeting. As you understand, we adjourned at seven o'clock to enable the Minister, Deputy O'Brien, to consult with the legal advisers in the Department of the Environment and to report back here on the arguments being advanced in support of the contention that the Bill is unconstitutional. I presume we can now take it up with the Minister, Deputy O'Brien on the legal points he is submitting in support of his contention that the Bill is unconstitutional.
I would like to thank you for affording me time to consult with my legal advisers. Naturally, while I cannot give you the verbatim report of the Attorney General, which is confidential to the Government, I can outline the basic Articles. I am not a lawyer but the Government, on the basis of the Attorney General's advice, is of the opinion that certain provisions of the Bill would be found unconstitutional. The main reasons are based on the opinion that this Bill would result in a situation not dissimilar to that existing in the Buckley case in the Supreme Court — the Buckley case is known locally as "the Sinn Féin funds case — having considered the distribution of powers set by Article 6 of the Constitution. The effects of Articles 34 to 37, inclusive, rests in the courts the exclusive rights to determine judicial controversies between citizens or between a citizen and citizens and the case may be handled by the courts. In bringing these proceedings the plaintiffs were exercising a constitutional right and were entitled to have the matter in dispute determined by a judicial organ of State.
Sorry, Minister, we have to establish the membership. Can we clarify who is substituting for whom? Deputy Leonard, are you substituting for Deputy Bertie Ahern?
No, for Deputy Lenihan.
The principally held judgment is that the Oireachtas cannot deprive a citizen of a constitutional right when he has already elected to exercise such rights under existing laws. The principle decided in this case was that the citizen could not be deprived of his right of access to the court. In the Housing (Private Rented Dwellings) Act 1982 persons have the right to apply to the District Court. Once this right has been invoked it would be an unwarrantable interference in the exercise of the constitutional right properly exercised to stay their actions so that they then transferred to a tribunal. The initial decision of the landlord to invoke the 1982 Act to bring an application to the court in an exercise of his rights implies as a corollary that the courts will hear his action in courts and that the matter will be brought to a final decision. The Constitution provides in Article 40 3.1th:
The State guarantees in its laws to respect, and, as far as practicible, by its laws to defend and vindicate the personal rights of the citizen.
This article was invoked by Judge Kenny in the McAuley v The Minister for Posts and Telegraphs case as supporting the constitutional right of recourse to the court to vindicate the legal right. A law would of course be repugnant to the Constitution if it failed to vindicate the personal right of a citizen which clearly includes the right to have recourse to the courts. If the present Amendment Bill were to become law, it would be incumbent upon the State to show that the State as far as practicable defended and vindicated the applicants' right where the applicants want to consent to the removal of their applications to the tribunal. Were he to contend that it was not his free choice to proceed before the tribunal, his right of recourse against the respondent would be lost, while if the case were to proceed at the instigation of the respondent, against his will, it would no longer be an exercise in his constitutional rights but rather of denial of his rights. In these circumstances it is impossible to accept that the law had defended and vindicated his rights.
The Government's case is based on what is known as the Sinn Féin funds case and your interpretation of that?
The Government are using that as a precedent. That is right. That is why I accept the Attorney General's advice.
What the Buckley case decided was that the courts had the exclusive right to determine justiciable controversies between citizens or between a citizen and the State.
On a point of order, could we have an explanation of what that word means.
It means a controversy or a dispute as to the merits on which a decision must be made by some outside agency, in this case the court. The point that was in dispute there was whether this controversy as between citizens on the one hand and the State on the other, should be decided by the court or should be decided by the Oireachtas. The Oireachtas took the view in that case that they should decide it. They passed an Act which said, irrespective of what the court may think, that money belongs to the State or to a board of trustees established under the Act to administer the funds. The courts understandably very strongly repudiated the rights of the Oireachtas to do that. They said that where there is a dispute between citizens or a dispute between citizens and the State, the Oireachtas cannot make a decision. It must, under Article 6 of the Constitution be left to the courts to make a decision of that kind where their rights were involved. That case is not relevant to this circumstance because in this circumstance the Oireachtas through this Bill is not trying to fix the rents of the houses which it would be doing if the Attorney General's contention were correct that the Buckley case applied to this Bill. What is happening here is that the forum for the making of the decision is moved from one tribunal to another. That is a common enough occurrence within the law because cases are frequently remitted from one court to another; from the High Court to the Circuit Court; from the District Court to the Special Criminal Court and so on. There are quite a number of other examples both on the civil and the criminal side. A more precise definition of justiciable controversy is to call it a controversy within the purely judicial domain. In other words, the decision as to rights between certain people or rights between citizens and the State. This is not an attempt to deal with anything which is within the judicial domain. It is simply to change the forum for decision from one tribunal to another.
It is worth noting, for example, that the District Court, which was what was provided in the 1982 Act, is not a constitutional court in itself or a tribunal in itself, it is the statutory one. It is not referred to in the Constitution. It is established by Statute under Article 37, section 1 of which says that
Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers,
It goes without serious argument that the fixing of rents on houses is a very limited function. It has to be, because it would not have been given to the District Court in the first instance if it were not. Therefore, it is open to the Legislature to have any such tribunal, District Court, Circuit Court or non-judicial tribunal, as appropriate, to hear it. The probability is that once these thousand or so cases are over, any future cases that would arise must, under the terms of the 1982 Act, come before the tribunal anyway. So one cannot say that people who have to resort to the tribunal rather than the District Court are not getting justice, or are having their constitutional rights or whatever interfered with.
It is important to remind ourselves again that the Sinn Féin Funds case had nothing to do with where the decision would be made as between tribunals. It was entirely based on the fact that the Oireachtas attempted to arrogate to itself the right to decide where certain funds in dispute between certain citizens should go. The courts blew it out, understandably. In other words, that Act made the decision in the matter that was at issue. The Sinn Féin Funds case would be appropriate to this Bill if this Bill set out a long list: the rents of No. 14 St. Patrick's Avenue, Cork shall be £5 a week; the rent of No. 15 shall be £6 a week, or something of that kind. That, expressed in the terms of this Bill, is what the Sinn Féin Funds case did. The court said that the Oireachtas has no power to decide a matter of that kind which clearly comes within the judicial domain.
The Minister of State in reading the Attorney General's views made reference to the McAuley case as in some way supporting that view. I respectfully disagree again. McAuley's case was based on whether or not the citizen had a right to sue the State, because up to relatively recently the citizen unless he got a specific statutory power to do so, did not have the right to sue the State on the basis that we had imported the old British system of concepts suitable, that the Crown can do no wrong and, therefore, could not be sued.
I do not know if McAuley's case vindicated the right to sue the State but I do not see that as being really relevant to this matter. To go into some slightly more detail. In the Sinn Féin funds case to demonstrate the difference, the Sinn Féin Funds Act, 1947, which was the one found to be unconstitutional, compulsorily confiscated the funds of certain citizens and paid them over to a State board. The Act also purported to compel the High Court to strike out the action which was before it at the time and thereby left the citizens without any form in which to argue their differences in regard to the ownership of the money.
I would hope that the committee would agree that there is a very fundamental difference, therefore, and it is not enough to say that citizens have certain rights in the District Court and do not have them in other subsidiary tribunals of an equal type. These tribunals are becoming more and more a feature of modern life and administration because of the wide range of things for which courts are not necessarily nowadays regarded as the best judges. Examples of these are the unfair dismissals tribunal, the employment appeals tribunal, and other areas of that kind, where the courts would have no special training or knowledge and there are people who specialise in those areas and have a particular knowledge of, say, labour and law, employment negotiations and conditions and so on, who are in a better position to deal with these matters. There are, of course, various other statutory tribunals of that kind and we are likely to continue to see more of them. I do not think anybody has suggested up to now that they should be set aside, as it were, or that the citizen who has recourse to one of these tribunals is deprived of his constitutional rights because he cannot go to the District Court with them.
Among the various other non-judicial tribunals dealing with matters of considerable importance, and often of much more importance I suggest that the rent of an individual house, even though that is very important to the individual tenant, but where a person's whole livelihood is involved such as the employment appeals tribunal, there are the Racing Board which sits as a tribunal in betting levy cases where a bookmaker's livelihood is at stake and Bord na gCon likewise; old age pension tribunals are there since 1908 and where the awarding or the non-awarding of an old age pension can be of crucial importance to an individual citizen; the Land Commission, which deals with important matters relating to land and, of course, An Bord Pleanála among others. If a citizen thought that he or she was wronged by a tribunal in regard to a point of law, or if the tribunal misinterpreted the law relating to these matters, there is a right under section 5 of the 1982 Act to appeal to the High Court on that point of law. That right of access to the High Court is, of course, not affected at all by this Bill. For these reasons, the committee should agree that the Sinn Féin funds case, which is the only argument put forward, is not appropriate. I would say, for example, if the Minister of State were correct in his suggestion that this is a matter within the judicial domain involving constitutional rights then he will have to concede that the 1983 Act itself, to which this is just a minor amendment, is unconstitutional because that established the tribunal. The arguments that he made against the tribunal and against citizens having to go to it would mean, if they were valid, that the tribunal was invalid and therefore that the 1983 Act was unconstitutional. We would also have the curious situation that the post 2 July applicants or respondents were in one situation and the pre 2 July respondents were in another, which again would be an untenable proposition.
Chairman, I will not even try to go into all the legalities that Deputy O'Malley has gone into because I am not a lawyer. If I understand what he is saying about the justiciable case and the reference of the Sinn Féin funds case being not exactly like what we are dealing with here, the reality is, as Deputy O'Malley as a lawyer will know, that no two cases are identical but that decisions are taken on precedents on the general principle on what is decided in a court and what the precedents have set down. There is no doubt that in the Sinn Féin funds case the decision was made on the basis that, having started the procedure in one court, nobody had the right to remove it from that forum and take it somewhere else and make the decision somewhere else. That is my understanding that that is why it was declared unconstitutional for the Oireachtas to remove it from the forum in which it had already been taken.
This is really the kernel of what we are at here. Where a case has already been stated in one particular forum, we have been advised that it cannot be removed without loss of constitutional rights to one party or another, removed somewhere else where maybe one party or another feel that he will get a better and a fairer hearing. We may not be talking about funds or money or exactly the same thing but we are talking about rights. It strikes me that in passing this Bill there would be loss of constitutional rights on the part of one side of the case. In this instance it would probably be the landlord, but it is more likely to be the tenant, who would want to remove the case from the court and go to the tribunal. With that kind of advice we have to decide whether we would be responsible. There is no guarantee that, having passed this Bill, if it was declared unconstitutional we would then put tenants unnecessarily to a great deal more hardship than perhaps we are trying to save them from by allowing them to stay in the courts. That is what we really have to look at. Are we by endeavouring to pass this Bill actually forcing the tenants or encouraging the tenants into a situation where in reality they will lose out? That is not what we are here to do today. That is not what this Bill is trying to do. I would be very wary that that is what would happen in view of the advice the Attorney General has given. If we pass this Bill and a tenant removes the case from the District Court to the tribunal, at that stage, a case taken by the landlord to the courts could be declared unconstitutional. It would have to go back again to the District Court and during this time the tenant in the tribunal has no guarantee that if he stays with the tribunal his costs will be paid. If we go against the advice that we are being given here, we are not doing a service to the people.
On the point of rights we are not setting out that No. 40 St. Patrick's Terrace has rent at such and such, and that is the kind of case you are making. We are trying to do something that would lose somebody rights that they now have. The landlord would have his rights taken away. If he has already a case in court and he thinks that is where it will be decided if we pass this, whether he likes it or not, a tenant can come along and take it out of court. That is where the similarity between this and the Sinn Féin funds case is.
Could I quote to Deputy Owen what Professor John Kelly said in the House on the Second Stage on the point of whether or not there is any similarity with the Sinn Féin Funds case as he says there is not. At Volume 346 column 839 of 30 November 1983 he says:
I could not be as categorical about this Bill as anybody would have to be about an action of the kind the Sinn Féin funds Act tried to stop in mid-stream. This is a different kind of Bill. It is trying to regulate a special statutory procedure which did not exist a couple of years ago which was called into existence by an Act of this House and the other House and which is not part of the ordinary common law. In other words, it is trying to regulate a statutory procedure which has created, so to speak, a new set of rights side by side with the ordinary common law of the land. I cannot and will not be categorical about that.
That answers the point that Deputy Owen made about the cases being similar and so on. I accept her point that perhaps no two cases are ever exactly the same. It sometimes happens that they are. Cases are often analogous to one another and one can argue from one to the other as a result. In this case there is no question of their being analogous and Professor Kelly is certainly of that opinion.
On the question of somebody's rights being infringed by movement from one forum to another, I would remind Deputy Owen that in addition to the list of changes and movements that I gave earlier, perhaps the most important of all in terms of affecting people's rights is the right of the State to move a criminal trial from the circuit in which the event happened to the Dublin circuit or to move a criminal trial from any circuit to the Central Criminal Court. That right is frequently exercised. It is also exercised by defendants in those trials in cases, for example, that might have created a certain local controversy, for example, a rape case or something of that kind where a lot of people in the locality had come to the conclusion that the defendant was guilty before they heard the evidence at all and where a jury might be prejudiced within a particular county. The defendant exercises his right to move it to Dublin or to move it to the Central Criminal Court. It is not different in this case, because the District Court was almost fortuitously picked in the first instance under the 1982 Act to operate this and it was changed in 1983 to tribunals. We are trying to deal with the people in respect of whom applications for increases in rent were made before the change had become fully operative and where they seemed to be hard done by for that reason.
The Minister of State, in fairness to him, did not clarify the exact facts of the Sinn Féin funds case. We know that at that time this case attracted great political and legal controversy. Would the Minister of State like to encapsulate, briefly, the facts of the case so that we can alert the other members of the committee to what we are speaking about now? Would the Minister like me to help him in that regard? I could assist him if he is so minded. I do not want to pre-empt anything the Minister might say.
I made the point——
If Deputy Andrews read the head note to that case?
I am just wondering if the Minister could help us.
Basically, the Sinn Féin case is a question of principle, the principle of an attempt to move a case out of court. That is all I am interested in. The actual factual basis is not of concern.
It is. That is the point I am making. I would just like to place on the record of this committee the history in encapsulated form of the origin of the Sinn Féin funds case.
In the 1947 survey, executives of the trustees of the Sinn Féin organisation had certain funds on their hands. There was controversy about what should be done with these funds because of the various changes and splintering in the original Sinn Féin organisation since the foundation of the State. A group of people who claim to be the official successors to the original office or board sued them to get the money. This of course was a High Court action. The Government of the day were perturbed by this because it involved the court in deciding various questions of a politically sensitive nature, such as who were the genuine successors to the original Sinn Féin organisation, and they accordingly passed the Act the Minister has referred to — the Sinn Féin Funds Act. This Act, as the Minister stated, proposed to set up a board in which the money was to be vested. It also provided in section 10 (2) that:
The High Court shall, if an application in that behalf is made ex-parte by or on behalf of the Attorney General, make an order dismissing pending action without costs.
Of course, as members know this Act was treated scathingly by the High Court and eventually it was found to be unconstitutional. This was because, in the words of the Supreme Court judgment of the day, Irish Reports 1950, "this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain". From Article 34.1 of the Constitution which was quoted in some detail by Deputy O'Malley it can be seen that the circumstances of that case were completely different from the present case. Most fundamentally the Sinn Féin Funds Act proposed to remove a dispute pending before the High Court from the judicial sphere altogether and to transfer the moneys which were the subject of a dispute to a State board. This was both the confiscation of what was certainly private property and the denial to the parties of any kind of arbitration. The present Bill merely allows one of the parties to change the forum in which the dispute is decided. This is the essential point. It does not determine the result of any particular case. It does not, of course, prejudice any party to that particular case. On the one hand, the Minister has said that we are to accept that the Attorney General has said that this is bad law and he is opposed to that law and, on the other hand, we are saying that this is good law and never the twain shall meet. It really boils down to who has the better advice. On the question of hardship I think we should get on to the business of passing this legislation in this Committee and in the final analysis there is the safeguard of the President if there is any question of hardship. The President under Article 26 of the Constitution can refer the matter to the Supreme Court. There is no problem in that regard. I do not think we should be funking the issue. We have an obligation to pass laws as we see them. The large majority of Dáil Deputies who stand up at Committee Stage of any Bill do so without any background of law or legal advice. The view has been expressed here that there is a general acceptance of the principle of this Bill and we should get on with the business of passing it into law. If it is challenged by a private individual, or a group of individuals, so be it, or if the President refers it under his constitutional obligations to the Supreme Court, so be it. I do not believe it will be found to be constitutional. In the meantime I will say that we are funking the issue or we seem to be funking the issue.
Unconstitutional.
Mr. Chairman, Deputy O'Malley and Deputy Andrews raised a very interesting point. They said it was not uncommon for the State to move cases from one court to a higher court or from the higher court to the lower court without, of course, the consent of the other party. He also mentioned that it was not uncommon for bodies such as the Old Age Pensions Tribunal and An Bord Pleanála to determine matters of a similar nature. What is the relationship there, for instance, if the case was before An Bord Pleanála or the case was before the courts and could be referred back to An Bord Pleanála. What would be the legal situation there? Or if it was referred to the Old Age Pension Tribunal, what would be the eventual outcome? For instance, which would take precedence — the court or the tribunal? Could the case be withdrawn by either party without the agreement of the other?
That would depend on the terms of the statute setting up that tribunal and how it would operate. Could I say this to Deputy Durkan that the Sinn Féin funds case relates to things that are declared or defined by the Supreme Court as being in purely judicial domain. The fixing or determination of rents is an administrative act and not a purely judicial act. That is borne out in this very legislation itself — not this particular Bill but the other two Bills. The 1982 and the 1983 Acts in particular make reference to the fact that a housing officer can determine the rent. That is why there are references to the housing authority, for example. The determination of local authority rents is a matter for the housing officer of the particular local authority. It is an administrative act. It is not a judicial one. The other big difference with the Sinn Féin funds case is that that did not attempt to move the particular dispute or matter in question from a court to any other tribunal. The Supreme Court held that the Oireachtas had purported to determine the merits of the case and that is why they threw it out. If the Sinn Féin Funds Act 1947 had, for example, provided that the particular tribunal should be set up to decide who owns this money that would have been perfectly all right.
On Deputy O'Malley's point in regard to the fixing of rents, that is not what is in issue here. We are not discussing that. Here we have what is acknowledged to be an extension of the Dáil. Yet we have the Opposition coming in with their legal advisers. With all due respect, Chairman, we want a little more than legal advice. We have had nothing except for Deputy John Kelly's speech in the Dáil, of a political nature rather than a legal nature. It was an abuse of privilege and I am a little disappointed. We have not heard yet what Fianna Fáil think on the issue. We have not got the Attorney General's case and they have not presented their own. I would suggest, Chairman, that we should go along and try to advance the argument. I share Deputy Andrews's——
On a point of order, are the civil servants entitled to brief other members of the committee apart from the Minister of State?
Persons who are here in an advisory capacity are here to advise the full committee and not to advise anyone in particular. Could I ask Deputy O'Sullivan to clarify the abuse of privilege to which he referred?
I would suggest that one of the advisers, whom I cannot name, offered political advice rather than legal advice.
If the Deputy is looking for a ruling from me on that I would not accept that. Any of the people who are here in an advisory capacity are here to advise members. They may not themselves contribute to the debate.
Surely it is only fair that if one quotes Deputy Kelly one should quote from what he actually said.
The Deputy has every right to make a contribution here. If he wishes to quote further from Deputy Kelly there is nothing to stop him.
Deputy Bruton has every right to quote from Deputy Kelly. I am talking about legal advice, not a political contribution.
It is not for me to decide whether or not to use it or any other Member's contribution.
It is a serious issue before the meeting here.
The point Deputy O'Sullivan is making is that we are a Committee of the House. The Deputy is disputing Deputy O'Malley's right to quote from a Second Stage speech in the House.
I am ruling that Deputy O'Malley has every right and any of the advisers can offer advice with regard to Dáil debates or any other matter. It is up to members here to decide what they wish to do.
We ought to be more specific in determining whether or not we should have legal advice.
It is not confined to legal advice as such. They are here as advisers. The distinction was never made at the outset. The type of advice which emanates from advisers in the House to Ministers is not always confined to strictly legal implications.
I share the sentiments of Deputy Andrews. I share his concern for the people affected, but I feel you have not presented a fair case here. You have attempted to knock down the Attorney General's case and adopted a negative approach to the whole problem.
The Old Age Pension Committee and An Bord Pleanála were given as examples of this type of situation. I accept what Deputy O'Malley says but in a case where you have before the courts a dispute between the State or between a local authority and an individual what would be the legal situation if one of the parties without the agreement of the other withdrew the case to be determined by An Bord Pleanála or by the Statutory Committee of the Old Age Pension tribunal?
They might have no statutory right to do that.
So that the court could over-rule their decision?
I do not think so. I do not think old age pension cases normally would go before the court except occasionally to the High Court on a point of law. The District Court, for example, would not have any jurisdiction in regard to old age pension cases.
These were put forward as possible examples of a very similar situation.
Under the betting levy legislation, the Racing Board Act, that board can decide whether to bring a case in a court or to bring it before itself. Bord na gCon can do the same. They can prosecute in a court if they want or they can hold a hearing to determine whether or not the booking permit is to be withdrawn. In the case of the Racing Board that has been the position since 1947 and it has not been challenged. In the case of Bord na gCon it is the position since the Greyhound Industry Act, 1958.
After determination by those boards the case could be referred to the courts?
Not under that legislation. A choice would have to be made in the first instance by the body concerned as to which form they were going to operate. Of course the defendent could go back to the courts on a point of law, if he felt that the board concerned was misconstruing the Act.
From the quotation by Deputy Kelly in the House, it would appear that Deputy Kelly could not be entirely certain as to whether it might or might not be declared unconstitutional at the end of the day, which could mean that it might have to be referred to the Supreme Court for a decision which could involve a delay in the normal course of events.
If it was referred by the President they must give a decision within 60 days. The committee should remember that if that happened and there was that delay of up to 60 days, in the meantime the cases would be frozen and they would be on ice and no tenant would be affected detrimentally as a result.
Deputy O'Malley has very clearly spelled out the case. The Minister came back and outlined the Attorney General's view. It has been shown very clearly by Deputy O'Malley and Deputy Andrews that it does not stand up and that the Sinn Féin funds case bears no comparison with the present situation. As far as I am concerned the committee are sincere in what they are about. We have no option but to accept what is being put before us here tonight and I hope that the Deputies on the other side of the House are not just looking for an easy way out. There is no comparison with the cases the Minister has outlined and therefore the amendment is quite in order.
Before I call Deputy Owen I should like to say that something useful has emerged in our discussions so far. It is the first time we have had any proper discussion on the content of the Bill in as much as that those opposing the Bill particularly the Minister here, for the first time identified the case and the precedent upon which they are basing their judgment that the Bill is unconstitutional. I am very pleased that the Minister has finally done that and that he has stated that he is basing all of his arguments on the Sinn Féin funds case. The legal advisers available to the sponsors of this Bill have examined the Sinn Féin funds case very extensively and have advised us that in their opinion there is a fundamental difference between the case dealt with on that occasion and the cases referred to in the Bill. On the basis of advice given to us by our legal advisers we are absolutely convinced that the Attorney General's judgment in this matter is faulty and that he has given incorrect advice to the Minister and those who are opposing the Bill on the basis of that advice. We are very pleased that we have established clearly that your case stands and falls on the Sinn Féin funds case. Deputy Andrews put it very clearly before the meeting some time ago, and I am surprised that Deputy O'Sullivan stated that we have not brought forward the arguments against the Attorney General's contention. We have, and it has been gone into at some length by Deputy O'Malley and Deputy Andrews. The crucial part of what Deputy Andrews put before the meeting is the actual words of the Supreme Court judgment in the Sinn Féin funds case, where it said that what was being proposed was clearly repugnant to the Constitution, that is confiscation of property and moneys and handing it over to a State board. There is no comparison between that case and what is proposed in this Bill which is merely transferring the administration of decisions in rent cases from one forum to another. It is not confiscating property; it is not confiscating funds. In the words of the Supreme Court judgment, this is clearly repugnant to the Constitituion as being an unwarrantable interference by the Oireachtas with the operations of the courts in a purely judicial domain. Rent fixing could not be deemed to be in the judicial domain. That is a very fundamental difference. It is a completely different case from the Sinn Féin funds case where property and moneys were in dispute and where the State confiscated them and sought to have them vested in a State board which was outside the judicial sphere.
I am glad of your intervention because you have highlighted a number of the points I wanted to raise. I dispute the argument that this case is not judicial. The reality is that once a case goes before the courts — and we are talking about cases that have already been listed — they are in the judicial sphere. We have a new system where they are in the tribunal and it is administrative, but something that goes before the courts, in my layman's understanding of it, is subject to the judicial process. We are not talking about something which is at the tribunal stage where it would be administrative. We are talking about something that has already gone into the system, like it or not. Various cases are stated. There are three points I want to make. First of all, in answer to something I said, Deputy O'Malley quoted from Deputy John Kelly. It would be only fair to point out that on balance Deputy Kelly came down on the fact that on the weight of evidence it would be unconstitutional.
There is, I think, a flaw in Deputy O'Malley's argument. Deputy O'Malley made a very strong case of the fact that it is perfectly common to find that a judge would move a case from one court district to another court within the judicial system. That is fine. We are not talking about that. A District Court on the system constructed is much the same as the tribunal. In a court you have recourse to an appeal. If you are not happy with the rent that is fixed in the District Court you can appeal to a higher court. In the tribunal you do not have that right. In other words, the instructions of a tribunal are totally different from the District Court, so you cannot juggle around from one system to another. You could draw comparisons and say that, because you are a politician, you could move from one party to another, just willy-nilly. I do not think a District Court is equated to a tribunal. In a tribunal you cannot appeal the rent that is fixed. You can appeal a point of law but you have no higher tribunal. There is no other tier in a tribunal to appeal. The system is different. You cannot just mix them up like that. I want to repeat again what I said at the beginning. There are other arguments against this Bill over and above the constitutional argument. I made that case right at the beginning. We have to look at the affect of passing this Bill. Are we actually helping the people? We are here as a responsible, legislative body. I would not like any decision to be made finally on this without actually considering more than the constitutionality of the Bill. That is why it is important to highlight that again. We are talking about a situation where you could actually be setting up a worse situation for the tenants we are trying to help. We cannot forget that.
Deputy, on your last point, when this Bill was in the Dáil we understood from the Minister for the Environment that he fully supported the principles, was very desirous of proceeding with the proposals in this Bill and would do so, but the only restriction on him was the advice of the Attorney General.
The first part of Deputy Owens' submission would mean then, as I understand it, that section 10 (1) of the Housing (Private Rented Dwellings) (Amendment) Bill, 1983 would be unconstitutional. Section 10 (1) says:
Where a landlord or tenant has made an application to the Court under section 12 (1) of the Act of 1982 and, at the commencement of section 5 of this Act, the matter has not come on for hearing before the Court, the applicant may, if the other party consents, withdraw the application and may make a new application under this Act to the Tribunal or a housing authority, as the case may be.
There is consent there and there is no thought for rights on one side or another. There is a consentual agreement.
Yes, but I am sure Deputy Owen will realise that, if we get away from the sheer realities of this, that the argument she is making is entirely against the tenants. The tenants want to go to the tribunal.
If there was a simple straightforward approach involved without having this doubt that it is unconstitutional ——
The problem with the tenants is that they are in terror of the courts. What they want is an informal atmosphere. First of all, they are being brought in against their will. They do not want to be brought into the District Court. Some of them are brought into court for the first time in their lives. If we are talking about social justice, my goodness, who are we dealing with? The great majority of the people who are being brought into court by these landlords are elderly people living in their homes for 45 or 50 years. That is part of the social justice we are trying to achieve in the Fianna Fáil Bill. We have the challenged the generality of it, as the Minister has said, particularly in relation to the bogus argument. I say this with the greatest respect for the adjudication on the Sinn Féin funds case, but what we are talking about here is bringing people into the District Court for the first time, particularly in their later years. It is a very frightening experience for the large majority of these people and they would much prefer the informal atmosphere of a tribunal. That would be my view on it.
If I might come back again there, I would disagree with the assertion that, in fact, the case that we are making is not in the interests of the tenants. I would disagree with that on the basis that, assuming that the argument that the Opposition have put forward that the Bill is constitutional, assuming that it is constitutional, and that at a later stage it is referred to the Supreme Court, how then will we be safeguarding the interests of those tenants whose cases are now before the courts and whose cases will not be determined in any event? There is also the question of costs arising in those particular cases.
The tribunal has discretion in that regard.
The landlord has to pay the costs.
In the court. How can we pass this Bill if it is equally open to the landlord to remove the case from the District Court, thus withdrawing himself from paying the cost and leaving the tenant to carry the cost?
The cost will amount to less than the rent in most of the cases.
The landlord has a solicitor. Invariably a landlord does have a solicitor at a tribunal and therefore he has to bear the cost of his own solicitor plus the cost of the tenant's solicitor.
Assuming the Supreme Court decided in favour or against, from the point of view of those tenants whose cases would be held up, if the Supreme Court decided that the view this Bill was unconstitutional was correct, how then would we have served any useful purpose from the point of view of those tenants? All we would have done would have been delayed the action for them and they would still be subjected to the same trauma that they are subjected to at present, allowing the present situation to continue and perhaps clear the cases that are already there before the courts. I would assume that by the time the Supreme Court would have made a decision, if the situation now prevailing was allowed to stand, perhaps most of those cases would be cleared.
The Bill, of course, was brought forward at the instigation of the tenants who dread the prospect of having their cases heard in the District Court and who are very annoyed at being denied the opportunity of availing of the new tribunal.
On a point of order, how much would the tenants costs be before the tribunal?
It would cost very little. It would be minimal. It would depend on whether he employed somebody on the case. Other than that it would not cost very much.
Deputy O'Malley more or less indicated that I was suggesting that there was something wrong with tribunals, that they were improper and, indeed, that the 1983 Act would be unconstitutional. I want to make it quite clear that I did not indicate that at all. I favour the tribunal very much. Basically what I was saying was that where a case was properly started in the courts it would have to continue there. That is the case we have been making. It is based on the Sinn Féin funds case which was adjudicated by the court. Unless both parties agree the status quo must be preserved. For that reason I am quite satisfied that the case the Opposition are making is not standing up, and I would have to say quite clearly that the more I hear of the changes that are being made or to be decided the more I am satisfied that the advice we have been getting is the correct advice. I would have to make that quite clear at this point rather than carrying on to and fro unless there is new input from the far side. The advice we received is right and I see no reason not to accept that advice.
The Minister, by his comments, is showing the Government's insincerity from the very beginning. They were let off the hook by withdrawing the motion in the Dáil. It is being proved here tonight that there was no genuine effort by the Government in allowing this motion to come in there. They had their minds made up not to accept the case put on behalf of the Bill here. From the very beginning the Minister made no case. Our time is being wasted at this rate.
Would the Minister clarify some points? He gave me the impression that he was talking about cases which were being heard in the District Court. The Bill does not refer to cases that are being heard in the District Court. It only refers to cases that are listed for hearing in the District Court.
They would be seen as being properly before the court.
None of the cases that we are referring to would have commenced. They would be ones listed for hearing.
The distinction is drawn under section 10 subsection (1) which says that the matter has not come for hearing before the Court.
Surely once the person applies to have the case heard, that constitutes the case being before the court.
The case is only before the court when it is set down for hearing before the court. One can start High Court action by issuing a plenary summons but the case is not before the High Court until such time as a notice of trial is served and the case is set down.
Is Deputy O'Malley saying the existing Act covers his point?
It makes that distinction, yes. The Minister of State's difficulty is that if his argument is right, section 10 of the 1983 Act is unconstitutional. He is arguing against himself.
Equally, under section 10, in the way Deputy O'Malley reads it, all the cases that are only listed but are not heard are actually free to go to the tribunal?
That is why we are disputing it: they are not free.
Then they are properly before the courts. You cannot have the argument of one side that once they are only listed but not——
With the consent of the other party, at the moment. What we are trying to achieve is with or without the consent of the other party.
That is a diminution of rights.
Without consent, one would be impinging on people's rights. That is the case we are making as to the constitutionality of it.
Just to give some idea of the opinions of senior counsel which we have already expounded in the Dáil debate: We were advised that the Sinn Féin funds case dealt with a fundamentally different matter than the matter contained in our Bill. The opinion of senior counsel is to the effect that the principles in that Bill do not apply to this Bill. The fixing of rent is not a matter of purely judicial domain. It is largely an administrative role. Furthermore the transfer of these cases to the tribunal does not deprive the landlord of the right to have his rent fixed; it merely changes the forum at which it is to be fixed. The Constitution clearly enables such matters as these to be regulated outside of the formal court structure. Article 37 states:
Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
It is clear that Article 37 does not impinge on this Bill. On the contrary it can be quoted in support of the Bill, and has been so quoted by us. The fact that an application has been forwarded to the District Court does not in itself give constitutional rights to a lessor to have administrative matters such as the fixing of rents dealt with by that court. The landlord or other applicant will still have a power to defer questions of law to the High Court under section 13 of the 1983 Act. The Tánaiste said in the Dáil that what the present Bill purports to do is to put a person who has properly applied to the courts in accordance with the statutory right given to him under the Housing (Private Rented Dwellings), Act, 1982, to have his case determined, in the position of having his case struck out retrospectively and thus his statutory right denied by the person who is the opposing party to him in the case. We are advised that this is a wrong interpretation of the Bill. It is not intended to have the matter struck out retrospectively. What is involved merely is a transfer of the forum. As matters stand at present legislative powers exist for matters to be remitted from one court to another, as evidenced by Deputy O'Malley earlier on. This is the essence of what is contained in the Bill which we propose.
The Madigan case, Chairman, to bear out what you said, decided that the original Rent Restrictions Acts, 1946 and 1960 and their amendments were unconstitutional because they deprived a landlord of the right to have adjudication about his property made by a court, not because he could not go to any forum but because no adjudication of any kind could be made by anybody because of the terms of the statute. In this case the only question arises as to which forum at any particular time the adjudication should be made. There is a forum to adjudicate on property values or whatever. It is just a question of which one the Oireachtas considers more appropriate. It is the view of the Oireachtas, it is fair to say, as represented in this Committee, that the tribunal is the more appropriate forum to make the decision. My suggestion, since there are different points of view on the constitutional question, is to pass the Bill and have the Dáil pass a resolution requesting the President to refer it. Since it is such a short Bill and such a net point, there should not be a question of having to wait 60 days and the Supreme Court will be able to give a decision in a much shorter time than 60 days.
Deputy O'Malley has been a Minister in Government. Can he say therefore, if there is a precedent here? If he in Government referred something to the President with the intention of remitting it to the Attorney General, if there was an element of doubt about it, what would happen?
There was a precedent about three or four years ago.
There was a more recent case, the Electoral Bill.
The present Electoral Bill is being referred to at the moment. There was another one. I am trying to remember which one it was, I think it was in 1979. I have to look at the list of Statutes.
There was a recent debate in the Dáil on the Electoral Bill. The Minister at the conclusion of the debate stated that it was clear from the debate that a genuine doubt existed as to the constitutionality of this Bill and that though the Government could not instruct the President to refer it to the Supreme Court, it was the intention that the President would take into account the views expressed in the Dáil during the first half of the debate, though the Government could not instruct him to refer it. That is what the Government more or less desire. They are not the exact words they use but they desire that it should be referred.
Chairman, there was no conflict of opinion there in that particular case. I said there is a definite conflict here and what I am saying is that there are precedents where the Government of the day referred to the President with a view from everybody that is should be referred to the Supreme Court.
I am a person of conflict. When the Minister was introducing the Bill he stated that it was the advice of the Attorney General given to the Government that the Electoral Bill was constitutional and the Government accepted that and yet, at the end of the debate, he accepted the offers from the other side and it was agreed that it would be appropriate that this Bill be referred by the President to the Supreme Court for decisional issue. But of course the direction given by the Government is purely in the domain of the President himself.
But do you not concede, Chairman, that no two cases are exactly similar? What we will be doing is setting a precedent.
Those words clearly expressed.
They are trying to set a precedent. That is what we will be doing.
I do not believe that we will be setting a precedent but, if we were, it would be for everyone.
It would be a very worthy one. It would be a socially just one and a socially proper one and it has the full support, I think, spiritually and philosophically of all members of the committee. To come back to Deputy O'Sullivan's point, I think we just have to push the door open a little bit further there. I think he would be willing to go half the way if not all the way with us and have the matter agreed here and referred to the President and the President then could exercise his powers under Article 26 of the Constitution and there would be no further problem about the matter. I think it is unfortunate that we have even to consider the possibility of having the President refer it, under Article 26 of the Constitution, to the Supreme Court because we believe, and we have argued and, I think, Deputy O'Malley in particular has argued very clearly, both legally and otherwise, the merits of the Fianna Fáil Bill as presently drafted. There is a general movement towards consensus. I really think we should not be afraid of precedents. If we are creating the precedent, let us, for goodness sake, be part of the precedent. Let us be part of the history of precedent.
I think it is right and proper that the Government should be courageous. We have argued that on the basis of precedents but Deputy O'Malley and Deputy Andrews put their hearts on precedent and Deputy Andrews is now saying let us set a precedent ourselves. That is exactly what he said to me.
On the Bill, we are discussing something which was brought before the House by Minister Ruairí Quinn in the Department of the Environment. It was he who introduced the Bill. We recognise the social commitment in the Bill. We fully appreciate that. But we have no advice and no legal viability to do what is desirable. There is something there which according to the opinion of the Attorney General we are not entitled to and it is quite legitimate for the Government of the day to yield to the warning of the Attorney General. That is the purpose of his being.
I do not really feel that Deputy O'Malley has answered the essential points. As a layman listening to what the Attorney General has said, the question is what is the use in talking about the example cited, the Sinn Féin case? The courts may talk of an unwarranted intervention in a purely judicial domain but what essentially seems to me to be involved was that they were switching, in the first instance, from the courts to a new forum for decision, that forum being the Oireachtas. I do not accept the point that Deputy O'Malley is making that it was the Oireachtas which decided the merits. In the first instance what they were doing was shifting the forum from the courts into the Oireachtas. I think that is quite clear and the Attorney General's case hinges entirely on the switching of the forum, not on the question of deciding the merits. I think that it is quite wrong of Deputy O'Malley to suggest that the Attorney General's case would make the whole rents tribunal unconstitutional. That is totally beside the point. He is purely focusing on the switching of cases already initiated from one forum to another. The citing of the example of movement within the judicial domain from one court to another is quite a different sort of example. You are going within what they talked about, namely, a purely judicial domain. You are still within it and you are just making switches within it. I do not think that example is a relevant example for Deputy O'Malley to fight against the Attorney General's case. Equally, I do not think Deputy O'Malley's citing of the existence of other boards is in any way answering the Attorney General's case. No one here is disputing the top priority of the rents tribunals, or Bord na gCon, or any of the others. That is not in dispute at all. I do not think that Deputy O'Malley has really answered the Attorney General's case especially when he said that decision is not in the judicial domain. That is not the case. When a dispute arises it surely is in the judicial domain. Again, I do not think that point raised by Deputy O'Malley and by the Chairman is answering the case. On the point that essentially we are funking the question, I do not accept that because what we are doing is essentially saying this Bill should go to the Supreme Court for the Supreme Court to decide and thereby force the tenants to endure a long delay on the final outcome of the case with the possibility of costs. I do not know how real that possibility would be but I would say definitely there is the likelihood of their being faced with a lump sum arrear of rent from the time that the case was first introduced. I believe that there is an overwhelming likelihood that tenants at the end of the road would, as the Attorney General has outlined, end up far worse off.
Very briefly, the reason this was brought in was for social reasons in order to take the cases out of the courts to where all the cases are going now, namely, to tribunals. The arguments put up by the last speakers are pretty ridiculous. They do not stand up at all. All cases now go to tribunals. We are endeavouring to take the cases after 2 July out of the courts. Why did the Government Deputies not produce the legal arguments in their contributions in the Dáil? They certainly did not adopt that line. They were as conscious of the social consequence to the people concerned. I can see here, in the last half an hour, they are switching now to try to defend the Attorney General's interpretation which is a complete reversal of their contributions in the Dáil and I was very disappointed with that.
On a point of order, the reality is that most Bills get teased out on Committee Stage and I do not want it on the record that we here on the Government side are funking anything by teasing out all the points in this case. It is wrong of Deputy Wallace to make that accusation about us.
It is not an accusation. I am entitled to my interpretation of what is being said here. It is in direct contradiction of the remarks that were made in the House.
This is the forum in which to tease out the problems.
I reject the assertions of Deputy Wallace. We all believe in social justice and because of that the Minister referred the case to this committee for discussion. We are also agreed that there is a possibility that if referred to the Supreme Court the case could go one way or the other. What, for instance, would be the net benefit to the tenants whose interests we are trying to protect, if the Bill was decreed to be unconstitutional in the Supreme Court? Would cases which the Bill would purport to refer to the tribunal be referred back to the courts again for decision?
We do not believe that would happen.
It is a very simple case. As far as I can see the Attorney General bases his case on the fact that you are changing cases from one forum to another and he says that this is unconstitutional. I agree with Deputy Bruton that the tenants would suffer in this. Certainly high costs would be loaded on them for cases that are already there. We would not be doing the tenants any favour by passing this.
On the point of tenants suffering and having to pay arrears of rent and large sums, if things move from one forum to another, the existing Act makes it clear that no arrears can be awarded. The longer these things are drawn out, the better from the tenants' point of view, because the increased rent only becomes payable from the date that the decision is made.
As a lay person listening to the debate, particularly on the constitutional aspect, I think the Minister is basing his assumption on only one case, the Sinn Féin funds case. Deputies O'Malley and Andrews have answered that case very eloquently. It bothers me that the arguments put forward by Deputy O'Malley which completely cancelled the points made by the Minister have not been replied to by the Minister. The Government are on very weak ground, so weak in fact that the Minister is not really participating in this debate except by going back to the same case all the time. Regarding the social aspect, I do not dispute the willingness of the Government side to be social-minded but I appeal to them if there are any doubts — and having listened to the debate here tonight I think there must be — to go along with our Bill and support us and if necessary have it sent to the President for ratification.
Just to come back——
I just want to correct something. From my understanding of the Bill which has been passed, it says at Section 12 (1) (a):
Where an application is withdrawn under section 10 (1) and a new application is made under this Act, the period from the date of notice referred to in section 10 (2) to the date of the fixing of the terms.
Deputy O'Malley implied that there would be no arrears. The reality is that if this Bill is passed and a case is withdrawn from the District Court and sent to the tribunal it commences from the date of notice to serve. That would involve the tenant possibly — it depends on the ruling of the Tribunal — in arrears. We have debated this for a considerable time and in view of the Attorney General's advice and the other relevant aspects we would be irresponsible to pass the Bill. We must take into account the effect of this if passed and then proved to be unconstitutional. We have discussed it sufficiently for us all to have our minds made up and we should bring the debate to a conclusion.
There is one important part of it which was referred to by Deputy Michael J. Cosgrave, the question of changing from one forum to another and the contention that there may be a constitutional problem about that. I would refer the Deputy to section 10 of the 1983 Act which allows the applicant in proceedings before the District Court, inevitably the landlord, to transfer a case from the District Court to the new tribunal if he gets the consent of the other parties. The Government envisage the transfers from one forum to another without any difficulty with the consent of the other party.
That is the argument. It is the kernel of the whole thing.
It is not.
It is. You are depriving the person of the right.
(Interruptions.)
There is no problem. What our Bill is doing quite clearly confirms my view that it is constitutional.
If there is consent there is no problem. What we are saying is that this Bill is depriving people of a particular right.
We are depriving landlords.
The tenants want what is in the Bill.
(Interruptions.)
What about the tenant whose rent is increasing from £2 per week to £50 per week? We should give those the benefit of the doubt.
There is no evidence to say that the tribunal may not adopt the same rent criteria. There have not been enough cases judged by the tribunal yet but the few that have gone before it would be in line with what happened in the courts.
If we pass this Bill the landlord could withdraw. We tend to think that is one instance the landlord has all the rights and in the other instance if we pass this Bill the tenants will have all the rights. The reality is that either side can withdraw. If the landlord withdraws the case the tenant will be left with the costs. I am not talking about the legal costs, but the costs the tenant would have already incurred such as a valuer's statement, a solicitor and so on. They could be considerable costs. We are leaving the way open for a landlord to have a better situation if the Bill is passed. He could withdraw the case and leave the tenant with the costs if the Bill is later declared unconstitutional. There are too many ifs about this for us to responsibly pass it. The Fianna Fáil side seem to say, "let us give it a try." That would be fine if we were not talking about people who will suffer as a result of us setting a precedent and just giving it a run as it were. We are talking about people who are going to be affected as a result of this.
As the person whose name is on the Bill as sponsoring it, there is no question of us just putting forward the Bill on the odd chance of giving it a try. The Bill is being put forward on the basis of very solid legal advice. The reality which confronts us here is that no matter how each of us seeks to apply our minds to the legal complexities and the constitutional aspects contained in the provisions in the Bill, those who are trained in the law and who have achieved qualification in the law, are the people best able to advise. On the Government's side, the Attorney General is advising one thing, so I want to put some legal advice on the record which we have received from a number of eminent barristers, including the former Attorney General in regard to the removal of a matter from the District Court, which is what we have been arguing about here, and in regard to whether it would be effected without the consent of the applicant parties. In regard to the removal of a matter from the District Court, some of this legal opinion has already been mentioned here but I will give it in the form in which I have it here in front of me. The determination of rent is essentially an administrative matter and while the power of determination was initially vested in the District Court under the 1982 Act, it is now operated under the 1983 Act, by a tribunal, not being a judicial body. The 1983 Act, in its own terms, accepts that the fixing of rents does not have to be determined by a court. It represents the case of Buckley and Others and Sinn Féin versus the Attorney General and Another in 1950. The authority for the fact in this case is that the effect of Article 6 and Articles 34 to 37, inclusive, of the Constitution:
is to invest in the courts the exclusive right to determine justifiable controversies between citizens or between a citizen or citizens, as the case may be, and State.
The issues with regard to this Bill is one of the fixing of the terms of tenancies, including rents, amounts to determining justiciable controversies. The Attorney General lost the Sinn Féin case as it was held by the Supreme Court that the determination by the Oireachtas of a claim by the plaintiffs to register property and trust moneys was "an unwarrantable interference by the Oireachtas with the operations of the court in a purely judicial domain". It is clear that the issues involved in that case were "in a purely judicial domain". But the determination of the terms of a tenancy cannot be so considered, as to concede this would be to suggest that the 1983 Act, on the whole, is unconstitutional. Therefore, one can conclude that no constitutional rights exist to have rent, etc., determined by the courts as opposed to "any person or body of persons duly authorised by law" to exercise limited functions and powers of a judicial nature — Article 37 of the Constitution.
On the other question of the application to transfer without the consent of the applicant, under the proposals contained in this Bill it is proposed to allow a respondent to effect a change of court from the District Court to the tribunal, of an application not brought by him, without the consent of the applicant.
Following upon the case of Blake and Others versus the Attorney General in 1982, the landlord has a constitutional right to have rents reviewed where the absence of such power would be a circumstance of inherent injustice. The Bill proposes not to alter that right, namely, to have the rent reviewed, but simply to alter the forum. The right to a change of forum cannot operate to affect the property right of a landlord as both the tribunals, etc. and the courts must apply section 13 of the 1982 Act in fixing a rent. Therefore, without a constitutional right to a court hearing, and where the transfer will not affect the right of a landlord to have the rent fixed, the landlord, the applicant, cannot suggest that the Constitution should operate to debar a change of forum on the application of a respondent especially where the tribunal must apply the same provisions as the courts under the 1982 Act. Only if a constitutional right to have these matters determined by the courts existed, could one suggest that such a change of forum as is proposed, be unconstitutional. Even within the court structure parties may, in certain circumstances, apply to a court for the transfer of a case from one court to another without the necessity of obtaining the consent of a plaintiff or defendant as the case may be. You can see the records of that in the Courts of Justice Act, 1924. Furthermore, extensive powers are vested in the Director of Public Prosecutions, formerly in the Attorney General for the transfer of criminal trials from one court to another or from one circuit area to another. The reference for this is the Courts Act, 1981. This Act has operated to prevent certain cases from being commenced in certain courts, including the High Court, from 12 May 1982. At a recent meeting of barristers the President of the High Court, Mr. Finlay, expressed views to the effect that that Act would have been better if it forced certain cases to be transmitted from the High Court to the Circuit Court, even after the commencement of proceedings in the High Court. That is the opinion of the President of the High Court and it is the opinion of a large number of lawyers that we have consulted on this matter, whose ability I do not doubt.
I would like to say, in relation to you, Chairman, and in particular to Deputies O'Malley and Andrews, that the case put forward has been reasonable and without prejudice. But in the final analysis my view, as a layman, would be that while the cases put forward have been fair, there is no way that the Opposition can, without doubt, say that this Bill would be constitutional. Likewise, there is no way that we can prove here that the view that we hold, on the advice of the Attorney General, is correct either. In the final analysis, again it might have to be determined by the Supreme Court. I would contend then that the interests of the people we are now trying to protect in this Bill would not be best served by that kind of a delay. In the long run it might be just as well to allow the current situation to prevail, have the cases that are now listed before the courts, cleared in the normal way because, if we do not do that, we could have a situation, as I already pointed out, whereby in the event that the Bill was declared unconstitutional, those cases being referred back to the tribunal would again have to be referred back to the courts for determination. As a result the trauma for those people we are now all trying to protect would not be mitigated one iota.
Chairman, regarding the trauma of the people we are discussing here tonight, it could not be any greater than it is at the present time. I do not wish to labour the subject but a number of our Deputies have had personal experience in going to these courts and looking at the proceedings. Certainly, it can be very traumatic. I would submit that if there is any possible way in which we can help that situation as far as the tenant is concerned we should do so. That is why this committee has been set up. Deputy Durkan has expressed very strongly doubts regarding the Attorney General's own recommendation. On the basis of that alone, Chairman, it is the responsibility of this committee to look in a very balanced way, at the alternatives. I further contend that the alternatives put forward here tonight have been excellent. We have heard various views from very highly respected barristers and lawyers. That type of evidence should be sufficient. I would ask the Minister at this late stage if he will reconsider the Government position and agree to accept this Bill.
I would like, Mr. Chairman, to clarify that I did not express very strong doubts as to the validity of the Attorney General's viewpoint. What I said was that there was no way that we here could conclusively decide whether his view was right or whether the view expressed from that side of the table was right unless the courts decided.
Let the courts decide. We could be here until next week. The only way the courts can decide it is if we pass the Bill tonight. Let them decide it.
That does not remove the trauma for the people we are trying to protect.
I take the point made in Deputy Durkan's contribution because it is exactly along the lines that we have been suggesting from the outset. There is very substantial doubt on the Government side as to the validity of their argument that this Bill is unconstitutional and, so long as substantial doubt exists I think that those who would benefit from this Bill should not be denied the opportunity of having the issue decided in the correct forum. All along we have asked that the Bill be passed by the Oireachtas as quickly as possible and allow the matter to be referred by the President to the Supreme Court so that this issue can be decided. As a Committee of the Dáil we do not have the competence to make a legal decision on whether or not it is constitutional. We have legal opinion from both sides which leaves a very substantial doubt as to whether or not the Bill is constitutional. The people who are promoting the Bill are fully satisfied that the Bill is constitutional and until proved otherwise it remains constitutional. The reason why this Bill was put forward must not be forgotten, the people who have suffered and who have expressed the very strong desire to have these cases transferred from the District Court. We had statements in Dáil Éireann from the Minister for the Environment, the Tánaiste, the Minister of State for the Environment and several Deputies from all sides in support of the principle that all of these cases should be transferred to the special tribunal which has been established by Dáil Éireann. It is very difficult to understand why there should have been any reluctance on the Government's part to accept the Bill or, to understand the doubt introduced into the matter by the Attorney General's advice. But the doubt can only be resolved in the correct forum, and this is not the correct forum in which to settle it. We should do what we can only do, that is, pass the Bill and allow the President to refer it to the correct forum for discussions on constitutionality. We would be doing less than our utmost to help the unfortunate people who have had to suffer the trauma of courtroom experience arising from these cases if we do not pass it. A number of our Deputies have attended the District Court hearings and have come away absolutely shocked at the distress caused to the tenants in having to appear there and in the proceedings which took place there, elderly citizens all of them. The distress is something that none of us would wish to see continuing. That is the reason why the House brought forward a Bill to establish tribunals. This section of the community has been denied that opportunity but this Bill will restore the opportunity to them to avail of a new facility and a new forum. We are absolutely convinced that our Bill is appropriate and constitutional and will not be struck down in the Supreme Court. We appeal to the Government side to proceed on the basis that we have established a substantial doubt which is admitted by yourselves and we would ask you to allow the correct forum in this country to decide the issue.
There is no doubt in the Government's minds about this. The Government are quite satisfied with the Attorney General's advice and they are accepting that advice. We have talked now for two hours and I certainly have not heard anything that would convince me not to accept the advice that has been given. If we proceed with this we would indeed build up people's hopes. I have no doubt that this will be deemed unconstitutional so after their expectations have been heightened they will be dashed. I accept what Deputy Brady said, that there is great hardship but I do not want to impose greater hardship. For that reason I would have to oppose this Bill.
The Minister of State started this latest session, this fifth meeting of this committee, by reading out part of the Attorney General's opinion. I listened carefully and he confirmed afterwards what I had heard, that the opinion was based on the Sinn Féin funds case of 1950, and that that was the grounds on which he felt that this Bill might be unconstitutional. I want the permission of the Chairman to read one paragraph of the judgment of that court and to ask the committee, having heard it, to draw their own conclusions from it.
Permission granted.
It is the judgment of Mr. Justice O'Byrne, who gave judgment of the court, page 84 of the 1950 Irish reports:
There is another ground on which, in our view, the Act contravenes the Constitution. We have already referred to the distribution of powers affected by Art. 6. The effect of that article and of Arts. 34 to 37, inclusive, is to vest in the Courts the exclusive right to determine judiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas and the Court is required and directed by the Oireachtas to dismiss the plaintiffs claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain.
For these reasons we are of the opinion that the decision of the President of the High Court was correct.
This application will be dismissed.
It is perfectly clear that what the Supreme Court were objecting to was the arbitrary action of the Oireachtas in saying, "that case is before the Court. We do not care what way the court would have decided. That money is going to the State; we hereby confiscate it; none of the parties who are litigating about it can have it; we are grabbing it. Now, to equate that with the provisions of this little Bill is just turning any kind of normal legal argument on its head. What we have in this case is the movement of a certain limited number of cases, because all the cases after 2 August 1983 have to go, whether the landlord likes it or not from one tribunal to another. There is no constitutional right to have the case started in the District Court in the first place, so nobody is deprived of any constitutional right by its being heard in a tribunal. A lot of argument has come in about extraneous matters. The gist of the Attorney General's argument relates to that case, and that is the kernel of the decision of the Supreme Court expressed in very clear terms. There is no question but that that decision could have no effect on the constitutionality of this Bill.
Certain points raised by Deputy Durkan will be covered, if we ever get to it, by amendment No. 1 in my name which is to add a section after section 3. On the question of arrears which Deputy Durkan and others raised, I would like to make it very clear that no question of arrears under section 12 can arise if our new section 3, that is this amendment No. 1, is inserted, because it provides that a new application must be treated as if it were at all times an application under section 5. I accept that that means that any question of arrears cannot arise, and this question of double trauma or whatever cannot arise. If this Bill is passed by this Committee tonight there will be thousands of grateful people — old, vulnerable, frail people — who will go to bed at least tomorrow night in the happiness that, thanks be to God, that bloody awful vision that they saw before themselves of being hauled into court and shouted at by barristers and solicitors and judges, and so on, will be at an end. This awful prospect, which frightened some of them almost more than the actual rent itself does, will be lifted from them. I would make a final appeal to this committee now to let the Bill go through. It is a very short Bill and I am sure the Supreme Court would co-operate in the circumstances in giving a decision on it in a very, very short time and that the 60-day limit which normally applies would not apply in the case. I cannot venture any opinion as to how long they might take, but I would venture the opinion they would take very substantially less than 60 days. To put it mildly, I think that the predominance of evidence and opinion tend to be in favour of the constitutionality of this Bill, but the presumption is anyway, if it is passed, that the obligation will be on whoever wants it declared unconstitutional, the landlord, to do that. Landlords may not bring a case. They may feel that it is unacceptable socially, or otherwise, for them to do that but, if they do, the onus is on them. They will have to prove it to the Supreme Court beyond reasonable doubt, I think they are going to find the greatest difficulty in convincing the Supreme Court that this rather moderate provision, which is so clearly in aid of a very distressed class in our community, a class who incidentally would never have been depressed if the original case had not been taken to challenge the Rent Restrictions Act, is ultra vires the Constitution. Another reason why the landlords will not perhaps challenge the Bill is the fact that they will get no increase in their rent anyway until that case is over.
Might I just say here in support of what Deputy O'Malley is saying, and to remind him, that it was the present Attorney General, Mr. Sutherland, who advised the Government in regard to the first Bill that was passed by the Oireachtas in 1981. That Bill, despite the best advice available from Mr. Sutherland at the time, was found by the Supreme Court to be wrong and that Bill was found on reference by the President under Article 26 of the Constitution to be in conflict with the Constitution.
That is the argument ad Rominem.
With all respect, I think you are abusing the Chair by saying that. What you are actually doing is calling into question the Attorney General's qualifications.
I am referring to the fact that a lot of the present difficulties arose from the decision in regard to that Bill. I am referring to advice which was given to the Government at that time on a Bill which was subsequently found to be unconstitutional.
It proved the advice of the Attorney General was wrong and can be wrong again.
I think the Minister in his comments made a very interesting remark. He said the Government were satisfied with the Attorney General's advice that this Bill was unconstitutional. He is quite happy about that unless he changes his mind here tonight. Personally I believe the Minister came in here tonight without any intention of changing his mind anyway. The Minister remarked that we would only be raising people's expectations if we were to accept the Bill here tonight. My interpretation of that is that if the Minister accepts that we would be doing a good job by raising people's expectations, he is in actual fact admitting that we have a case here tonight — a very good case and a very substantial case that would stand up. We came in here tonight and the Government had their minds made up. Irrespective of what was said or what case was made they were not going to change their minds. The Minister's own admission in his last comments gave me that impression very clearly.
I am sorry Deputy O'Malley is gone out. He is proposing in his new section 3 ——
Section 3 is not before the meeting.
No, but he referred to it in answering the point about arrears. In saying that the whole area of arrears would not be relevant because, if we have this new section 3, arrears would not come into question, he is actually admitting that there is a possibility of arrears. The point I want to make is that actually we started off discussing this on the basis that all the Bill was trying to do was to change the forum from the court to the tribunal. Now we are actually talking about changing the law because at the moment in the District Court arrears are allowable and what Deputy O'Malley is intending to do, having passed one section, is to actually change the law even from what you yourself admitted to the Dáil, and that is certainly not what we are here about tonight, Chairman, and that will have to be highlighted.
I do not think that is relevant.
It is very relevant because Deputy O'Malley raised it in response to the arrears area. We were knocked down on the arrears. We were told it was not a relevant argument. But it must be relevant. It has been proved to be relevant in the fact that your party have submitted a section to make sure that there will not be arrears so you are admitting there would be arrears. We have got to the point now where we have a different legal opinion and — I do not know if I am correct under Standing Orders but I would like to ask now that the question be put and a vote taken.
Deputy O'Malley made a point I was going to make: it is the will of the people that this be transferred to a tribunal and I am sure the public representatives here know that.
There is one thing I would like to say. I do not want to be hurtful to anyone about this committee but, when I came into the Dáil a Minister came in and moved a Bill and then the Minister came in and closed the debate. I welcome the decision to set up committees but I never thought we would be put in the position we are put in today. Here we have six people from the Opposition coming in here with top legal advice and we are here with advice from the Attorney General. Ordinary lay people here are set up as a jury between the decisions of two legal advisers. The way I sum it up is every day of the week legal advisers have to be on but if I see two people going into court both with advisers and the judge says both are right or both are wrong, I made it quite clear earlier on that if a Government backbench Deputy asks the advice of the Attorney- General——
Is that legal advice?
It is legal advice and I have to accept that and, if I go into court, I am not going to accept the Opposition's advice.
I think it is very important just for the record that the Opposition referred to by the last speaker did not ask to come to this committee. We asked that the Bill be passed in the House and that it then go, if necessary, to the Supreme Court. It was the Minister on the night, who decided to set up a special committee and who has put his own Minister and his Government backbenchers through all this trauma. The legal arguments have been made. It is clearly a case that if this Bill is not passed it is a victory for the landlords and people like those behind Folio Homes. If this Bill is rejected by the Government on the shady advice ——
(Interruptions.)
Through the Chair, please. One voice please. I did not hear what was said.
(Interruptions.)
I withdraw it. I said ‘shady'. The advice does not convince anybody on this side of the House and it does not hold up in the arguments that have been made. It is unfortunate that we have had so many changes of personnel on this committee because we broke the continuity that would have been there. Somebody who was involved with the Bill all the way through unfortunately had to pull out and that is regrettable.
On a point of order, Standing Order 83 provides that should a Private Members' Bill pass its Second Reading it shall be referred to a Select or Special Committee. I want to correct what Deputy Ahern said, that it was our choice. We did not have a choice. Once a Bill passes Second Reading it must be referred to a special committee.
I would remind Deputy McLaughlin that they are the opposition to this Bill.
On that point of order, the Bill would not have passed if the Government had not withdrawn the amendment which they had put down.
The reality is that it passed and it is now being dealt with under Standing Orders.
It was the Government's wish that it come here.
It is Standing Orders.
You agreed on the night.
Yes, because I knew that their amendment objected to the Bill.
(Interruptions.)
As one of the people who was here from the beginning of these meetings, when it was referred to the special committee, let me say that the Government's attitude at that point was as it is now: there is no change in the Government's position on this. We were hoping that Fianna Fáil would offer some reasonable alternative, and they have not. They have engaged in a knocking exercise.
(Interruptions.)
Chairman, on a point of order——
(Interruptions.)
On a point of order——
Deputy Andrews on a point of order.
We have been here for five hours. I do not think Deputy O'Sullivan should suggest that we are engaging in a knocking exercise. He should withdraw that remark. It is unworthy of him.
(Interruptions.)
We introduced the Bill in the first place. I am a little bothered that at this late stage the Fianna Fáil Party are in effect, trying to get in on the act. That is simply what they are doing. This was a Bill brought before the House by Deputy Ruairí Quinn as Minister of State at the Department of the Environment.
It is a Private Bill we are talking about now.
A few short months ago Fianna Fáil had an opportunity to raise all these objections, but they did not do so.
(Interruptions.)
I did not interrupt one person during the whole course of this debate. I sat through every meeting and not once did I interrupt a speaker. It is a fair vote of confidence in the tribunal system which was introduced by this Government. I was hoping that as a result of these meetings we would come up with something which would enable us to transfer. We all realise the trauma that is the background to the thing. I thought that we would be trying to advance and improve the tribunal system, which is not faultless. Have any of the members ever been present at these tribunals?
A Deputy
We have, yes.
There are certain shortcomings in that system as well. The question of costs has not been ironed out either. I have seen a case brought under the tribunal system, that cost a man £264 for legal and professional advice by way of the valuer. The man has an income of £74 a week. I would have thought what we should be doing is trying to advance the system which was introduced. Acrimony has crept into it at this stage. It is regrettable. Everybody here is concerned about the welfare of the people who are affected by this legislation. We have legal opinion and as Deputy McLoughlin would say it is one opinion versus the other.
We expressed reservations in July when this Bill was passed, so Deputy O'Sullivan is incorrect in saying that we did not. He expressed reservations too on that occasion. He was as concerned about it as I was and he was as much informed about the situation in Cork as I was. To say that we did not express these opinions then is incorrect.
Could I add to that the fact that an amendment which would have had the same effect as this Bill was refused by the Government when the amendments were put forward by the Fianna Fáil Party and The Workers' Party in the Dáil last July when the Bill was being debated.
We are only covering the same ground that we have covered all night. I move that the question be now put.
I second that.
It is unfortunate that some Deputies on this Committee are coming in with closed minds.
(Interruptions.)
On a point of order——
If there are Deputies offering to speak——
I am offering, Chairman.
After the question had been proposed and seconded the question should be put.
(Interruptions.)
Under Standing Order 57 is it in order to put a question in this way? In the House one would not get a Member standing up to put a question in this way. It would be done by agreement of the House, and there is no such agreement. I do not think it is in order for anybody to put the question in the middle of the debate.
It is in order.
Am I right in summing up that most of the points that both sides wish to make have been made and we might be moving into a lot of repetition and we want to avoid that if at all possible? I would appeal to both sides, if anyone wishes to make a further contribution, to indicate, and we should try to terminate this debate as quickly as possible. Would that be acceptable to people who wish it to be terminated now?
You have a proposal.
I moved that the question be put and it was seconded and I have yet to know whether or not we are in order in proceeding to discuss the matter.
At a county council meeting you could not.
It is a matter for the Chair.
Is there a Standing Order which gives the discretion to the Chair?
I do not think we should make too much of an issue of this.
If this were the case anybody could have moved the question two minutes after we started. The procedure in the Dáil is that this is moved from time to time and the Chair announces that, in his opinion, there has not been sufficient debate and it is debated further for a half an hour or an hour more and then the thing is put again. This is an infringement on liberty which the Government are now trying to impose.
On a point of order, if I were chairman I would try and have some agreement between the Whips on a time limit.
Not now. It would be highly impractical to have that type of arrangement in all Committee Stages of a Bill. Most of the points that can be made have been made. I am giving an opportunity to any Deputies who wish to make a final contribution to do so.
I would like to ask the Minister a question. When we adjourned earlier tonight was contact made with the Attorney General's office? Having heard the debate here tonight, and having heard the various legal arguments and points put forward, which obviously must have implanted very large seeds of doubt in anyone's mind, would the Minister agree to consult the Attorney General-further to ascertain if the Attorney General could confirm either his own convictions or perhaps the doubts that have been raised at this committee and thus enable the Minister to accept the Bill more easily?
I do not accept that any reasonable doubt has been implanted in my mind. I have not changed my view. I have not, as the Deputy might think, a closed mind. I was literally thrown in at the deep end tonight and I am satisfied, after looking at the Attorney General's ruling and having advice from my own law officers on both sides, that the Bill as proposed is unconstitutional and I believe the Government could not accept it.
It is remarkable that the Minister of State is so certain in his mind now of the constitutionality or otherwise of the Bill because, when we started the meeting this evening, he had not the remotest idea on what grounds it was unconstitutional.
It was to have that sorted out that we broke up for two hours.
Can I take it then that when we broke up for the two hours that he actually discussed this matter personally with the Attorney General?
No. I said I would discuss it with the law officers in my Department. That is what I said.
So what we have been discussing here for the last three-and-a-half hours has not been the Attorney General's opinion. It has been the law officers' opinion.
It was the Attorney General's advice that we went through with the officials of the Department. It was the Attorney General's advice.
May I continue, Chairman? I was interrupted by the Minister of State whose demeanour is somewhat akin to his — I will pass that particular point — but it shows the attitude of the Minister of State and the Government, I think, that on his own admission he came in here on behalf of the Government without knowing the first thing about the Bill or any of the arguments for it or against it on constitutional grounds. A great deal of time of the committee has been wasted. If we had the attitude displayed on behalf of the Government tonight that was displayed last night by Deputy Quinn, we could have long since gone home secure in the knowledge that we had passed the Committee Stage of the Bill and that a very serious wrong which is being perpetrated every day of the week on old and vulnerable people had been averted. That is not the case. We have the admission here as we come towards a vote publicly, and I may say honestly given, by one Deputy that he does not understand any of the arguments one way or the other but he does not really care. He is a Government back-bencher and he has to vote in a particular way anyway. It certainly is not a good example of the use of the committee system as a deliberative assembly for sorting out things that are difficult. It is obviously a waste of time. It just depends on how many numbers of bodies are in the committee at any particular time. To put it at its mildest, nobody in this committee can deny that there is some doubt one way or the other in regard to the constitutionality of this Bill. But the onus, I repeat, is entirely on whatever landlord or group of landlords will seek to challenge it. If it is passed by both Houses it is constitutional. The onus is on the landlords to challenge it. I believe that they will have the greatest difficulty in doing so. It is very unlikely that the Supreme Court are going to go along with them particularly when they know the purpose why they want this Bill set aside. It is extremely unlikely. This Bill can be reduced down to simple terms. It is a question of whether or not this committee on behalf of this House want to facilitate the blackguarding of vulnerable, indefensible and frightened people which we all know has been going on. We have heard that from several Deputies on both sides of this committee and on both sides of this House. I would suggest now, Chairman, that we come to a vote, and that we allow those Deputies to express their concern for those people and to vote to alleviate that concern or to vote in support of Folio Homes and other landlords who are quite unscrupulous and have resorted to all kinds of improper tactics against old people and frightened and ignorant people. What are we here as the elected assembly of this country unless it is to protect those people in our society who need protection. I can assure you that people who bought a well protected house for a couple of hundred pounds because it was subject to a rent of £1 per week and who are now able to convert that house into a source of income of £60 a week at the expense of these old people are not the class whom any of us were elected to protect. I suggest in particular, Chairman, that they are not the class for whom the Labour Party Deputies were elected to represent.
That is most unfair. We have spent the whole night discussing legal points and for Deputy O'Malley to come in and try to insinuate we are protecting landlords who are blackguarding tenants is a very sad reflection of the attitude with which he took up this discussion.
On a point of order, the one objection to Deputy O'Malley's advice that I would see is his statement that no party would stand up in the court and say it is unconstitutional. That amendment at this stage is wrong.
I regret at this stage that Deputy O'Malley is trying to distort the whole discussion. It was as a result of these hardships that were imposed on these elderly citizens, and in particular as a result of the Madigan case, that this Bill was introduced. It was the Labour Party who introduced that Bill.
What name is on the writ?
The tactics being employed by Deputy O'Malley will not impress anybody. The Deputy said that a wrong was being perpetrated on these old people. Is he suggesting for a moment that there is something unjust about our judicial system? I concede that it is a trauma to go through the court procedures and that old people tend to be intimidated by it. But I do not see any wrong in that as such. They are being intimidated by the system but Deputy O'Malley and his colleagues when in Government had ample opportunity to do something about that. They had far greater opportunity than the Government of today and they did absolutely nothing. This is a rather shoddy stroke to pull at this late stage.
I support Deputy O'Malleys views and I do not think he should make an apology. He represents the Fianna Fáil view. The question should be put, because tempers are becoming somewhat frayed and that is unfair to the workings of the committee. The landlords' Government should get on with their dirty work and pass this.
(Interruptions.)
No one side in this debate has a monopoly of feeling and social conscience. It is not fitting for a Deputy with the experience of Deputy O'Malley to break out like he did at the end. Perhaps it is the late hour and tiredness we are all suffering from now. It was reprehensible of him to say the things he said. There is no monopoly on one side or another. We are all trying to face up to an issue as best we can.
The Minister put the case for the Government here tonight and I have a certain sympathy for him. As the Minister admitted he was put at the deep end without any knowledge of the background to the whole case. The big disadvantage we have had here tonight is that the Minister, Deputy Quinn, is not here, because from the very word "go" last night he had grasped what we were about; he was sympathetic to the whole situation and if he had been here tonight the Government would be accepting this Bill. The change has been a disadvantage to the committee. People have expressed their opinions and the silence of the Minister here tonight has been frustrating, not so much to the Minister himself. Not alone is he deciding for himself but he is deciding for everybody on the side of the Government here tonight. Irrespective of what opinions they have they are going to vote with the Minister and he has made absolutely no contribution tonight. He did not substantiate anything that was said. As Deputy Owen said we came in here to tease it out. The leading spokesperson for the Government was the Minister and he made no contribution. It is a tragedy that this Bill will fall just because the Minister was not informed enough. I agree with Deputy O'Sullivan that back in July, the Minister, Deputy Quinn was personally interested in this whole affair. It was all the Cork Deputies who brought this Bill to the floor of the House. I am sure Deputy O'Sullivan would agree that our main concern was not legal but what people were going through in Cork. That point is being lost tonight. The main reason we asked the Minister to bring this Bill before the House was to take the situation that was going on in the Cork courts where people 70, 80, 90 years old were being brought into court for the first time to go through an experience that would stay with them for the rest of their lives. It sent some people into an early grave and Deputy O'Sullivan knows that. That is the kernel of the thing. We have lost sight of it. I am surprised that some of the Deputies on the Government side have allowed themselves to lose sight of this just because the Minister came in and put the case of the Attorney General without replying to any of the points made. This committee has suffered because of the change of Minister. This is to be very much regretted.
Having sat through all of the meetings without a break I would like to say also that the Minister, Deputy Quinn, showed a genuine interest in this committee and in the Bill which was proposed by Fianna Fáil.
He understood it too.
In fairness to Deputy O'Brien he was thrown in here at the deep end tonight, not knowing anything about the Bill, about the constitutional situation and so on. Despite that, and on his own admission, his first statement was that he would not accept the Bill because of the constitutional situation. That, having acknowledged earlier that he did not appreciate or know the facts concerning the case. The entrenched attitude shown to this committee by the Government Deputies is to be regretted. This committee has sat here for two-and-a-half hours, since 9 o'clock, and valid and good agruments were put forward. Despite all of that, the Minister had an entrenched mind and he was not prepared to listen or to accept. That is on his own acknowledgement. That says very little for the future of the committee system.
I agree fully with Deputy O'Malley's comments and maybe he could be accused of an outburst but he was totally justified in the circumstances. If certain people around the table feel a little bit hurt, or if they have rather thin skins, and feel that the finger is being pointed at them, so be it. They will have to live with that.
There is not a monoploy on one side or another for good advice.
I would like to wind up my submission by rejecting the assertion that this Bill would remove the trauma referred to by Deputy O'Malley which is caused to the unfortunate tenants. We are all concerned about the tenants. The correction should be made quite clear. It might remove the trauma provided that the Bill later was proved constitutional. That is the nub of the problem as far as I can see. I also reject out of hand the assertion made by some people that on this side of the House we were representing the views of the landlords or the speculators. I never felt that we on this side of the House had the monopoly of representation in that area.
Why does not Deputy Durkan let the matter go to the Supreme Court? Is that not what we are about? Why not come part of the road with us?
By everybody's agreement it might remove the trauma, but there is no guarantee that it will.
As a result of that doubt, there is only one conclusion that could come from the Supreme Court and there is the failure of the argument from the far side of the table. At that stage, notwithstanding the case of costs or arrears, taking all that element out of it, the fact would still remain that if it was not constitutional those unfortunate people whose interests we are trying to defend would have to go through the system as it now exists.
Give our little but important Bill the benefit of the doubt.
That was what was wrong with previous Governments. Governments have to be sure.
(Interruptions.)
Order, please. We are concluding the discussions here, so just to have it on the record could I ask the Minister, Deputy O'Brien, if he would state the precise provision of the Constitution that he feels my Bill offends.
The case we are making is the precedent in the case of the Sinn Fein Funds Bill.
Which provision of the Constitution are we offending?
Acting on the basis of precedent, which has been established in the courts, that moving a case from the court is unconstitutional because it is denying a person a right. It is unconstitutional. The precedent is there and the advice the Attorney General is using is the advice on that precedent. That is the answer.
Precedents are wrong and the advice is wrong.
In the final deliberations of this committee, can we know from the Government side which Articles of the Constitution are being contravened at this stage?
As I have indicated to you, Mr. Chairman, it is on the precedent of a case, the Sinn Féin funds case, and if we try to implement this particular provision of the Bill it will be struck down because you cannot deprive persons, who have properly gone before the courts, of a right by removing them from the courts and putting them into some tribunal. That is what is unconstitutional.
The precedent of the Sinn Féin Funds Bill has nothing to do with that.
That is what we have been arguing all night. You have asked me the question and that is the answer.
I asked you to tell us the Articles? I want the record to show.
I told you what the Attorney General has based opinion on. That is the opinion. It is based on that precedent.
What I want to know is why my Bill is being struck down.
It is being struck down on the basis of a precedent set in the Sinn Féin funds case. The courts is one. The Articles are 34 to 37.
Go on to six, eight and 40. They are the other numbers on your sheet of paper.
Right.
Would the Minister of State submit to the Attorney General the opinions which we have of the two counsels with both of which a former Attorney General had his party's agreement?
I have no doubt that the Attorney General can get these on the records of the committee if he so wishes.
I do not think they are fully on the records of the committee. The only point about it is, when we take a vote here does our Bill effectively go? Could we defer the vote or could we postpone the vote until the Minister——
Is there a motion that the vote be taken?
Can you not withdraw the motion? I mean if you were serious about what you were saying for the last three hours——
Open minds and open hearts, gentlemen.
The record of the debate that has taken place here will show the kernel of the legal argument which has been presented by the Fianna Fáil Deputies in support of their Bill. In fairness, I do not think that any of the Government representatives on the committee are claiming to have special constitutional legal qualifications and, in fairness, would it not be appropriate that you bring away the points which have been put on the record here now to the Attorney General for his opninion?
The report of this Committee's meetings will not be published for weeks I would imagine.
Within a few days.
We have got none of them so far and this is our fifth meeting.
If the vote is taken here, Chairman, what happens?
If the vote is taken here the tax devolves on the people who will be trying to have their cases transferred.
Would there be a chance that they would postpone the vote until the views of the Attorney General are sought. I am just asking for guidance.
We have the views of the Attorney General. I have given you the views of the Attorney General.
I would oppose the closure of the debate. I would propose as an amendment to the Government's proposal that the deliberations be postponed until the Attorney General's advice is sought and that the minutes on our submissions and the deliberations of this committee be looked at by the Attorney General and, when the matter has been settled with the Attorney General, the Minister of State would then come back.
I second that.
I would support that because the Attorney General who has offered the opinion which you have put forward here has not heard the counter legal arguments which have been put forward in support of the constitutionality of the Bill.
In support of my proposal, the Minister of State admits that when we adjourned on the last occasion earlier in the evening, he did not obtain the advice of the Attorney General. He received the advice of his respected law officers. I am not making any point in relation to their legal advice but specifically he should have sought and obtained the advice of the Attorney General. I am asking now that this particular matter be postponed until the Attorney General has seen the arguments put forward by the proposers of this Bill. It is the only way to do justice.
You had the advice.
No.
Is there agreement to the proposals by Deputy Andrews?
Deputies
No.
It seems extraordinary that the Attorney General would not want to avail of the benefits of these views. I am quite sure if the Attorney General were here himself that he would be glad to have the benefit of these two opinions.
I think we can take it that the Attorney General would have considered this very, very carefully before giving the advice he gave to the Government and he would have looked — I mean he is a lawyer the same way as your advisers are. He would have looked at all these matters. They would not be new to him.
The view of the Attorney General is that it is unconstitutional. We were asking that he would not make a decision until he heard both sides and I am certainly not in a position to say whether he would or he would not. We were asked here tonight to present the case in the light of the legal advice we had available to us. That has been done. People here are laymen the same as myself. The case has been put now and, in fairness, if those people are sincere about their remarks here tonight they should give an opportunity to the Attorney General to have a look at the case put here tonight. They are not seeking the same as I am. They were saying we did not present the case at 6 o'clock. The case has been presented now and I am putting it to those people that they cannot express the opinion that the legal case was not put by this side. It has been put. They are not in a position to interpret whether it is right or wrong. They should now give us the opportunity of allowing the case to go to the Attorney General and bring it back. If he says "no", well and good. At least he should have an opportunity of looking at the situation that has been put here legally by us tonight and people were very careful in their expression. The case has been put. It was put very clearly and unequivocally and we have legal advice here for the Attorney General and I think that if the Attorney General looks at this case he will certainly have to have a rethink. I would appeal to the Minister to try to get those on his side to take this course of action if they are sincere about the whole business. We have been here until nearly 12 o'clock tonight because this is a very serious issue affecting many people and I really am appealing now particularly to my colleagues further down the table.
Here are the two opinions from Mr. Hardiman and Mr. Ó Cuiv to whom we are extremely grateful for all the trouble they have gone to in this matter. I know that the Attorney General will have a high opinion of their views and will greatly benefit in his consideration of the matter from the views which they have expressed with both of which a former Attorney General has expressed his concurrence.
I confirm what Deputy O'Malley is saying. The legal advice available from Mr. Hardiman and Mr. Ó Cuiv has the support of the Attorney General from the last Fianna Fáil Government who is not present at the committee. There is not much more to be achieved by our debate here. In the interest of tenants who are being deprived, the only final thing we can do on their behalf is to allow an adjournment of this committee until tomorrow to allow the Attorney General to examine the legal points made in the submissions, and to resume tomorrow and see whether the Attorney General would make any change in his advice.
On a point of order, I do not agree. Any Government of the day gets advice from the Attorney General and must accept it. You are trying to turn this committee into a forum where the Attorney Generals' advice can be contested by the Opposition party. What I can see happening is that we will have committees and Ministers on the stand being questioned. I am not in favour of that. The Government have got advice from the Attorney General — end of story. The advice of the Attorney General is that your Bill does not stand up. We could continue here until 3 a.m. but that is the advice we have got from the Attorney General. That is the end of the story.
(Interruptions.)
The Bill was referred to the committee because doubts about it were expressed in the Dáil. It was referred to the committee so that we could have an opportunity to look at it and present a legal case from this side of the House. Deputy McLoughlin is wrong in what he is saying.
(Interruptions.)
In reply to what Deputy McLoughlin said and in support of what Deputy Wallace said, this Bill was referred to the committee by the Tánaiste, Deputy Spring.
You agreed to it at the time?
I will quote from what Deputy Spring said to the Ceann Comhairle in the Dáil at column 852, Volume 346, of the Official Report of 30 November 1983:
I would ask your permission to seek leave to withdraw the amendment and refer the Bill to a select committee of the House for further discussion to see if we can make progress on what is obviously a point of grievous concern to the House.
We are here to examine the legal aspects. If the Government were of the opinion that the Attorney General's advice was the only advice that could and would be accepted, then there was no point in the Tánaiste referring the matter to the committee for further discussion. It was recognised that there was grievous concern on all sides about the issue. That is not being disputed. We have put forward the legal arguments countering the opinion received from the Attorney General. In fairness, it is reasonable to accommodate the different points of view. On other occasions we have agreed to adjourn the committee. We have sat for a very long time. If the Bill is voted down now, all the effort will have been an absolute waste of time. The only good which could come out of it is to at least allow the Attorney General to examine the legal points contained in the documents here and to reassemble tomorrow at 4 p.m. for one hour to consider the Attorney General's reaction on the points raised. Then you can move it and I assure you I will put the vote, if you move it, having had a response from the Attorney General.
It is a very exceptional measure, to have a Private Members' Bill brought before a special committee of the House. To my knowledge it is only about the fifth occasion since the foundation of the State that this procedure has been followed. There is no question, Deputy McLoughlin, of frequent meetings of committees of this kind and Ministers being put on the stand. This is a very exceptional measure and we could not have got to this stage unless the Government agreed to refer it to the committee. The Government alone have the final say as to whether or not special committees would meet. On this occasion they decided that there should be a special committee to consider these matters. I would appeal for unanimity. Nothing would be gained by voting it down now without allowing the Attorney General to consider the points of law which have been raised. They are very valid, they have been examined by very eminent people and people who have held similar posts to the man who is advising. We know that the final forum would be the Supreme Court, if there was to be a challenge. In fairness, it would be appropriate, and I appeal for unanimity so that we leave here feeling that justice has been done by consideration being given to the new points raised.
I propose an amendment that the deliberations of the committee be adjourned so that the views of the proposing party could be considered by the Attorney General so as to obtain his legal opinion thereon. I propose an amendment to the Government proposal.
The legal opinion of the Attorney General has not been made available to this committee. Would the Minister seek advice from the Attorney General on the basis of the points raised here by us? Would the Minister then come back and inform us of the Attorney General's opinion and whether or not it was appropriate to accept the Bill?
Or some such similar amendment.
I am satisfied with the Attorney General's advice and it is accepted. I do not see any reason for procrastination.
If this is the case and this Bill is unacceptable to the Government why did the Minister, a Member of the Cabinet, Deputy Quinn, last night accept one section of it which has already been passed by the committee? We are going to have a Committee Stage anyway, even if this section is beaten. We can, of course, have a Report Stage where we can put down all these amendments in the Dáil. The impression one would get last night from the Minister, Deputy Quinn, as opposed to the Minister of State whom we hear today, is that in principle the Bill is acceptable to the Government. That is borne out by the fact that he has already accepted one section and the committee have passed it. We are not ending the thing. If the Minister of State thinks this is the end of it——
I do not think that at all.
——we can have a very long Report Stage
Of course, in Private Members' time.
No, it has gone past that.
If there was unanimity on that we could conclude tonight's deliberations.
There is not unanimity. There is a proposal that a vote be taken.
The Minister is being very inflexible.
He does not understand it. If he did——
I do.
—— we would be able to get through, if we had somebody capable of understanding——
The Minister has indicated that he understands it.
With the greatest of respect, would the Tánaiste, the Deputy Prime Minister of the country, refer this Bill to a special committee of the House unless he felt there was some light at the end of the tunnel? I would not suggest that the Tánaiste was using the committee as a subterfuge to get himself off the hook, but if the Government vote against the proposing party tonight it can only be seen as a subterfuge.
Why does not the Minister, Deputy O'Brien consider it appropriate that the Attorney General should have the opportunity of examining the legal points raised by the proposers.
The Attorney General has studied this and has made his submission on the basis of his experience and knowledge.
The Attorney General could not have studied the points raised here because they were not raised before.
I do not know whether they were raised or not and you do not know, Chairman. I am merely saying that the Attorney General's advice has indicated a number of cases. I am accepting it.
But you cannot inform me that the Attorney General has in fact considered the points which we have brought forward. You do not know. You do not think that it would be appropriate that he should consider the points?
When the Attorney General took this decision he considered all aspects of the case.
Can you assure me that the Attorney General has considered all of the points brought forward by the proposers of the Bill?
I would say the Attorney General, when he is making a decision like this, considers all aspects of the law.
Has the Minister had confrontations with the Attorney General?
No.
How would the Minister know then?
I would accept that any law officer doing his job would do it efficiently and well.
Is the Minister not aware that as I said — he disliked me saying it — that previous legislation brought forward, recognised and approved as constitutional by the present Attorney General, was subsequently deemed unconstitutional. We are talking about precedents. That is a very recent one in that area. I do not want to make too much of it, but it is there and it is of grave concern.
Could I refer back to what Deputy Andrews said. I really think we should decide this once and for all. There were inferences made by Deputy Andrews that the Tánaiste might have used the setting-up of a committee as a way to get himself off a hook. To my knowledge at the time the Bill was before the House the Tánaiste had a certain amount of advice but that he also received further advice. In other words, it is not exactly the same situation. He did not just pass the Bill on knowing that it would be exactly the same situation. The Attorney General has further considered the matter since it was in the House and given us his advice.
What we are saying then is that the Tánaiste, Deputy Spring, did not have the Attorney General's advice available to him when he was discussing these matters in the House.
He did have the Attorney General's advice, but he had further advice also, exactly the same as you yourselves who have probably had additional legal advice.
Why bring the Bill before this committee then?
In order to allow what has happened here, in order to allow a further teasing out.
We have had five meetings of the committee. We had a fairly good and open debate and we said what we had to say in the interest of the Bill before us. At this stage I feel it is not too much to ask the Minister if he would refer the points made here to the Attorney General. We can come back tomorrow and he can tell us the answer is "no" and we will be satisfied with that. Since so much work has gone into it by everyone concerned will he just put it before the Attorney General and we will be happy with that.
Chairman, could I ask Deputy Owen at what point did the Attorney General receive further advice since the matter was referred to this committee?
The reality is that the advice that you have been receiving and the advice that the Minister has been receiving has been ongoing. The advice we are working on here is the full advice. You are not telling me on your side of the House that you took advice before this Bill went before the House and left it at that. You have your fine gentlemen here giving you continual advice.
The only purpose of the question was that apparently the Tánaiste or the Attorney General have been having different advice since this was first initiated.
Not at all.
The reality of the situation here is that a lot of people here, out of genuine concern for tenants who find themselves in a very awkward position, spent a lot of time examining the legislation, bringing forward proposals, debating it in Dáil Éireann and transferring it here. We have had a very lengthy discussion here. We have had five meetings. Today we have had two meetings. At the previous meetings we had a different Minister. We had a change of Minister today, who, at the first meeting had not a notion of what the Bill was all about, or what the constitutional objections were. We adjourned the committee to enable him to brief himself. He came back after two hours and has adopted the attitude that the Attorney General's advice, which I have now read, is such that the Bill before the committee is unconstitutional and that is that. All of the work which has gone into this particular Bill, all of the legal arguments which have been brought forward during the course of today's debate are not even to be conveyed to the Attorney General, who had previously given contrary advice to the Government. I think that is very unreasonable. It is very disturbing and upsetting to those of us who have spent so much time on this Bill and attending these committee meetings bringing forward our valid points in support of our contention. It is very disappointing to think that a Minister would walk in without having any briefing, without knowing what the issue was and, just because he had a change of Department, he would adopt the attitude he has adopted. We are going to put it down and that is it. We are not allowing any reasonable consideration of the legal arguments that have been raised. Because of the time and effort that has gone into it I think that is very very unfair. I would appeal to the Deputies on the Government side to recognise that this committee is very exceptional, that the issue before us is, as the Tánaiste says, of grievous concern to all of us. I would appeal to them to agree now to our request. We agreed last night to the Minister Deputy Quinn's request to adjourn. I would appeal to them to respond in the same way that we did and agreed to adjourn. In fact we agreed to adjourn this afternoon to accommodate the Minister. I would plead with him now to accept our request for an adjournment until tomorrow to allow the Attorney General to look at the arguments in the documents we have here. I think that is very reasonable. If we cannot co-operate to that extent in this House, then I think it is a very sad day for democracy and for the work we are trying to do in Parliament. Worse than that, it is very sad to think that all of the efforts that have gone into this will all have been in vain if it was the intention all along to vote this down.
Last night it was not. Part of it had been accepted already and if the Minister, Deputy Quinn, were here he would not be acting in a zombie-like fashion.
I appeal to the Minister.
I do not see any point in postponing this at all. I have the points quite clearly. The Attorney General's submissions and findings are, in my view, correct. To go back to him with other people's advice, in my view, will not improve the situation. The Chairman said he spent some time. With all due respect, Chairman, Committee Stages of any Bill take up a lot of time. People often put down amendments and continue to do battle for hours and hours on end and do not get the amendments through. That is the cut and thrust of the whole committee system. That is what it is about. It is not just about accepting people's legal advice and saying: "Yes, I will co-operate with you", even though we do not believe it is correct advice. We cannot accept that.
But the Attorney General has not seen the advice and the Minister is certainly not fit to decide whether or not the advice we have got is correct.
The Attorney General will do his job correctly.
On a point of order, we asked for your legal advice and you would not make it available until the Attorney General's legal advice was available. It is time the Chairman could see what is happening. Put the question. You can stay here all night pleading. It is going to be decided to night, end of story.
That sums it all up.
That is the fact. You have not got the numbers.
You are a credit to your party all right.
You did not get a mandate from the people.
If the people could vote on this matter, what way would they vote? They will be reminded of how you voted.
Would the Minister kindly spell out what was the purpose of being here tonight? What was the purpose of coming here and, on his own admission, being thrown in at the deep end. In other words he knows nothing about what we are doing here tonight, and he is now deciding for the Attorney General, the Government, and for everyone on the other side of the table without having the facts. It is a waste of time and I would be very slow to go on a Committee again if this is the kind of way in which we are going to work. It was a futile exercise. The Minister came in here at 6 o'clock tonight and admitted that he was only told about it ten minutes before he came in the door. We knew here last night at our meeting that the Minister would be taking over from the Minister, Deputy Quinn. I am aware that communications break down, but certainly this committee have suffered tonight and I do not know for what purpose. The Minister comes in without knowing the facts and he just says "no, no, no, I am not prepared to budge." Yet his predecessor last night started to accept part of the Bill. This is very serious legislation and all we get from the Minister is a quote from the Attorney General. That was his whole contribution and it is a disservice to this committee that we are teated in this manner. The Minister should have a look at the whole situation and put this before the Attorney General and stop this dogged attitude. We should get recognition for the work that we put into this committee. It should be put before the Attorney General. Tomorrow you can come back and tell us it is not on and we will accept that. At least our points should get some recognition. The Minister is being very unfair to all concerned, if he will not at least take the matter back to the Attorney General.
Just one point. As it is now gone 12 o'clock, my understanding of Standing Orders is that a special Committee is the same as the House and that this Committee must now stand adjourned.
I move that we adjourn for 5 minutes.
(Interruptions.)
Where is the standing order? That is in breach of Standing Orders. One cannot adjourn a meeting unless a standing order allows you to do it.
It is adjourned, I have adjourned it. I am the Chairman.
(Interruptions.)
Where is the Standing Order? You cannot adjourn the meeting without a reason.
Chairman, you are contradicting the precedent you set earlier on by not putting the question.
The question was put and you are not acting in accordance with the rulings.
The meeting continues tomorrow at 4 o'clock.
Why are you adjourning?
(Interruptions.)
The Committee is no longer valid.
The Chairman and other members withdrew from the room and the clerk went to consult with the Clerk of the Dáil.
Clerk to the Committee
I will read out Standing Order No. 94.
In considering a Bill, a Select or Special Committee may at any time adjourn, and a Committee of the whole Dáil may at any time report progress, provided that the necessary motion to this effect has been carried. Any such motion which is deemed by the Chair to be dilatory or obstructive shall not be accepted.
The Chairman cannot adjourn the meeting; it must be a decision by the Committee and, if necessary, by a vote. The committee is still in session. If there is a quorum here you can elect a pro-temp chairman.
I propose that Deputy Richard Bruton be the temporary Chairman of the Committee.
I second that.
Motion agreed.
Deputy Bruton took the Chair.
I would like to propose that a vote be taken to continue with this evening's meeting if that is in order. I would like at this stage to express my disapproval and dismay at the manner in which the then Chairman summarily abandoned the meeting and by doing so abused the position that he held as chairperson. It was unfortunate that he allowed the proceedings to degenerate to the extent that he walked out of the meeting and was, in fact, in breach of Standing Orders by so doing.
I would like to second that motion. It was unfortunate that this should have happened when we obviously had a very long and fruitful discussion on the Bill.
Do you want any further discussion on section 2 of the Bill?
I feel at this stage that there are two things we should consider: whether we should adjourn indefinitely or whether we should adjourn until some time tomorrow when, if necessary, the people can come back and make their case. I am agreeable to do whatever the majority of the members decide.
The Chair will do as the committee wish.
I would agree provided there is a time limit. I would like the Chair's ruling as to whether or not we can propose a time limit on our discussion. We already have proposed that the motion now be put which was duly seconded.
I would have to get a ruling on whether we could put a time limit on it. I would have thought that all we could do is to move an adjournment at a certain time and carry it at the time or move a motion.
I think it would be inappropriate, in view of the spirit in which this committee was set up by the Government allowing the Second Stage of this Bill to come to the committee, to deal with section 2 of the Bill and pass on to the next section. The appropriate thing to do, and I would so propose, is to adjourn this meeting to a time agreed to by the Whips.
I second the proposal.
I take it that is agreed by the committee.
The committee adjourned at 12.45 a.m. on Friday, 16 December, 1983.