Wednesday, 14 July 1971
Dáil Eireann Debate
This amendment arises out of a point which was raised on Committee Stage by a number of Deputies. It is designed to put beyond doubt that caravans and mobile homes are included in the definition of “land” for the purposes of the Bill.
Mr. T.J. Fitzpatrick: (Cavan): This matter was raised by me on Committee Stage following a speech by Deputy Lenehan from Mayo who seemed to think that the virtue in the Bill was the fact that it would protect caravans and that sort of thing. I pointed out that caravans seemed to be excluded specifically from the definition in the Bill. The Minister has now decided to include caravans and this amendment is acceptable to me.
As I pointed out on Committee Stage, any virtue that there is in this Bill lies  in the fact that it seeks to protect occupiers of buildings and premises; it seeks to protect people entitled to immediate occupation of premises and it seeks to protect these against all and sundry. It strikes me that the definition of “owner” in section 1 seems to be out of line with the spirit of the Bill because, as the definition now stands, it will not be illegal for one type of person, not entitled to occupy premises, to go in and, in fact, take forcible possession of them against the will of the person rightfully entitled to occupation. “Owner” is defined in section 1 as follows:
That is the part of the definition to which I take exception. In order to explain my objection it is necessary to point out the various types of interest a person could have in land. There is an interest in land known as a fee farm grant. Fee farm grants were first granted away back in the old days when a landlord gave grants forever to tenants at a small rent. Under a fee farm grant the conditions are usually very limited. Unlike a lease the conditions attached to a fee farm grant are usually merely that a small rent will be paid and, if the rent is not paid, the grant can be terminated. The conditions are minimal. They are grants forever and so long as the fee farm grantee discharges the obligation to pay the rent the fee farm grantor has no right at all to occupation of the land. In my professional experience I have never known a fee farm grantor recovering possession of land or property held under a fee farm grant. Subject to the rent being paid, the fee farm grantor has no right, good, bad or indifferent, to occupation of the land or premises and, if he wants to get possession of the land or property, he must invoke the law. If he thinks he has a right he must invoke the  law. Under this measure, however, he is to be treated as within the law if he bullies his way in on top of his tenant or fee farm grantee. When I raised this matter on Committee Stage I was hopeful that the Minister would do something about it. I concede he did not promise that he would but he definitely stated he would have a look at it; he said that on numerous occasions because this runs all through this Bill. The Minister did say that the tenant could resort to his legal rights and put out the offending landlord or grantor. I say the position should be reversed: the fee farm grantor, if he wants to get possession, should rely on his rights. It is not right that a man of substantial means and substantial power should be specifically excluded by the Minister from the criminal element in this Bill.
This owner, who has no right, good bad or indifferent, to occupy the land can, under the provisions of this Bill, take possession of the land. As I pointed out on Committee Stage this is a situation that could very easily arise. One of the arguments put forward by the Minister in justification of this measure was the occupation of certain houses in Hume Street. These houses were occupied in furtherance of a protest against the proposal of the Government to allow their demolition and the replacing of them by office blocks, thereby destroying buildings of architectural value. We know that many people of the fee farm grantor class were interested in the preservation of these buildings. In fact, the Minister in this House subtly referred to them as belted earls.
Whether we like it or not we know from experience that many of these fee farm grantors are titled people many of whom are interested in the preservation  of this type of architecture. In this city all that a fee farm grantor of a Georgian building that is about to be destroyed to make place for office blocks, would have to do, if he wished, if this Bill were law—I emphasise that he is a fee farm grantor, he is not entitled to possession or occupation— would be to stencil hundreds of thousands of leaflets or forms saying, “I authorise the bearer to take possession of No. 1 Hume Street” and distribute these wholesale over the city. If the Bill goes through as it is anybody going into occupation armed with authority from the fee farm grantor— admittedly he must be the fee farm grantor of this particular building— will be going in lawfully under the provisions of this Bill. I pointed that out to the Minister on Committee Stage and I do not think it can be contradicted. I am not really interested in that particular case; I am only pointing it out to show the absurdity of the definition of “owner”.
Surely the Minister wants to protect the tenants. Surely the Minister does not want to change the law, and if he quibbles with me about changing it, surely he does not want to create laws under which it will be illegal for one person to take possession forcibly of land or property and it will not be illegal for another person to take possession, the other person here being the absentee landlord or his agent. This absentee landlord, who may be in Hong Kong or anywhere else, can under this Bill send an authority to some bullyboy in Dublin city authorising that bullyboy to take possession of a house forcibly and knock it down over the ears of the tenant. If that is done the tenant has his right of course, if he has any money, to sue the landlord overseas. This is a disgraceful definition. It is a disgraceful bit of legislation which discriminates against the tenant vis-à-vis the remote landlord. It is no answer at all for the Minister to say to me, “Let the tenant resort to the civil law”. Why not let the landlord resort to the civil law?
I state my case here in support of this amendment principally on the basis that the tenant should be protected  from the offending landlord just as much as he should be protected from anybody else. I have picked out here to demonstrate my argument the fee farm grantor; with a bit of research it would be possible to think out people by the score who would have an interest in land or property but who would not be entitled to possession of it. Some elderly person might have a life estate which in the ordinary course of nature could not be expected to last for more than a very short time, yet that person can take forcible possession of his land or authorise somebody else to do it, and will not be guilty of any offence.
As I say, any lawyer who wanted to research could find out dozens of ways where a person could be legally stated as having an estate or interest in land without being entitled to possession thereof. On the Second Stage I stated that we were in agreement with the general principles of sections 2 and 3 if the Bill was stripped of the extremely offensive sections like section 4 and this definition of “ownership”. I did that on the basis that protection was being given to the occupier. I certainly never agreed to it on the basis that the law was going to be changed in a way that the battering rams were again to be placed in the hands of the landlord. That is what this section is doing. It clearly differentiates between the landlord on the one hand and the general public on the other. It is going to be an offence under this Bill for some unfortunate down-and-out man with a wife and family who have no shelter over their heads to take possession of an unoccupied house but it is not going to be an offence under this section for a wealthy landlord with a 40-room mansion, hundreds of acres of land, yachts and all the rest, to act the bully and land himself in on top of an unfortunate tenant in lowly circumstances. He is going to get the blessing of the Minister for Justice and the gardaí will not be allowed to go near the place. They will be told that is a matter for the civil law in so far as this gentleman is concerned. They are going to be foretold by the Minister and the Government that they are to go in and arrest the unfortunate homeless man and lodge him in Mountjoy  and bring him before the courts—arrest him without warrant.
I am terribly disappointed that the Minister did not look into this matter between Committee Stage and Report Stage as he led me to believe he would. The definition of ownership does not stand up to any sort of examination. I have pointed out the absurdity about the belted earl being able to authorise all and sundry to take possession of the place and, if he does it, it is OK. All he is entitled to may be a fee farm rent of 16s 8d in perpetuity; he is going to be immune; but the people who feel strongly about the protection of Georgian architecture or any ancient form of architecture are to be guilty of an offence even when they are making a protest which is reasonable and which the Government subsequently hold to be reasonable and to which they yield.
Then you have the case of the homeless man being guilty of an offence if he dares to go in and being subject to the most rigorous provisions of this Bill. Indeed, the newspaper editor will be guilty of an offence if he says that the homeless man was right to take the house. If the same newspaper says that the fee farm grantor——
Mr. T.J. Fitzpatrick: (Cavan): We are not. I am back right on it. I am dealing with the definition. If the Chair will have patience with me for a minute, I am pointing out that if the newspaper editor supports the taking of a house by a man who has not a house he will be guilty of an offence but if the newspaper editor supports the taking of possession of a house by a fee farm grantor he is not going to be guilty of any offence.
Mr. T.J. Fitzpatrick: (Cavan): I know, but this would be relevant. If the Chair will have patience with me, I am clearly relevant. I am pointing out the absurdities arising under this Bill from the definition of owner and when I get to amendment No. 9  the definition of owner will be over and finished with and there will be no use in my pointing out then the absurdity of this, as I am pointing it out now.
This definition of owner really riddles this Bill with absurdities. It runs contrary to the whole letter of the Bill which seeks to protect tenants in occupation, which seeks to protect people lawfully as at the time of the event entitled to occupation of land. It is simply an attempt to arm the absentee landlords with the battering ram which we all thought had been done away with and taken out of the landlord and tenant code in this country.
Mr. Cooney: Just briefly, I should like to support Deputy Fitzpatrick in his arguments on the deficiencies of the definition of owner. The kernel of the objection is that it permits a person who is an absentee landlord to interfere with the occupants of a premises without incurring the criminal sanctions which this Bill introduces, and that raises two points. First of all, it raises the point that the obvious answer is that if he does, the occupier has his civil remedy but this again gets back to the essential contradiction in this piece of legislation in that it is trying to effect a compromise between the civil and criminal law in relation to a matter which is essentially a matter of civil law. This is the essential objection to this Bill and that objection is highlighted by the deficiencies in the definition of owner.
A further serious deficiency in regard to the definition and which would be cured by Deputy Fitzpatrick's amendment is that as well as the persons defined in the definition part of section 1, an owner is also any person acting on behalf of the owner and this is unduly and dangerously wide in relation to the type of owner mentioned by Deputy Fitzpatrick, the absentee owner, the person who has only what you might call the colour of a right because a fee farm grantor in  this day and age has no more than the colour of a right. It is a legal right but it is only the colour of a right in reality. Nevertheless, that person can act through somebody else. He can act through the private army, as we all fear. He can even act through the very subversive organisations the Minister says the Bill is aimed against. Then you end up having a ridiculous situation. The more we consider this Bill, particularly the more we consider how it will develop, how it can and how it might develop having regard to the definitions and particularly having regard to this definition of owner, the more ridiculous and inept the Bill becomes.
Mr. Desmond: I should like to support the amendment. The deletion of the words as proposed by Fine Gael spokesmen is quite fair and reasonable because there is in the Minister's mind such a sweeping extension of the concept and definition of ownership as to illustrate the negative and discriminatory thinking, overloaded in favour of property owners and developers, on the part of the Minister. The imbalance in the Bill is shown up in that section. In respect of the rights of any occupier I am quite sure that in no circumstances would the Minister give parallel support within legislation to such persons. This is a public authorisation, a public licence, by the Minister to any landlord in this country to designate anybody whom he wishes and whom he may deem for the time being to have a vested interest in the land, to proceed to crucify the tenants or occupiers of land or of a structure. This is grossly unbalanced and grossly unfair. It does one thing more than anything else. It highlights the negative concept of the Minister in introducing this Bill. In that context the amendment proposed by the Fine Gael Party is worthy of support and will certainly enjoy ours.
Mr. O'Malley: These two amendments—Nos. 2 and 3—which I see as alternative amendments and which we are discussing together, are amendments which would have an effect on the principle which, as Deputy Fitzpatrick says, runs throughout the Bill. For that reason I shall deal with them  in somewhat more detail than I propose to deal with various other amendments.
Mr. O'Malley: Of course, Deputy Desmond is well aware that there are a large number of Deputies performing an important corporal work of mercy, giving their blood, at the moment. Undoubtedly Deputy Desmond will be delighted to take them away from that work.
Mr. O'Malley: In the interval since this matter was discussed on Committee Stage, I have given very careful consideration to the views expressed by Deputy Fitzpatrick and to his suggestion that the definition of “owner” should be amended in the manner which he has proposed again. Because I believe that Deputy Fitzpatrick is sincere in his approach to this particular matter I have gone out of my way to see whether it would be possible to accommodate his views without giving rise to the objections that I voiced on Committee Stage and which I regard as still being valid. Unfortunately, I find that there is no way of reconciling the Deputy's wishes and my own objections and, therefore, I must oppose the amendment again on this Stage.
 The sole purpose of this Bill is to deal with the specific problem with which the community has been confronted in recent times and which manifests itself in the forcible occupation of other persons' property and in forcible interference with the legitimate rights of owners by persons who have no semblance or colour of right to the property affected. I have been criticised at great length by some Opposition Deputies for introducing a Bill which they say goes too far. They allege that it introduces the sanction of the criminal law to an area where existing civil remedies are adequate or would be adequate if the procedure for enforcing them were streamlined suitably. I have answered that criticism by pointing out that in the case of the particular activities to which the Bill applies civil remedies are completely inadequate, not because of any procedural defect in the law but because of the violent and crude methods of intimidation that are adopted by the organised groups responsible as a result of which individual property owners are afraid to invoke the process of the civil law and are otherwise powerless to defend themselves.
It is in these circumstances that the State must step in and protect the individual in the interests of the community as a whole and to protect public order and public peace. In effect, Deputy Fitzpatrick is now saying that the Bill does not go far enough and that it should introduce the sanction of the criminal law not only in cases where property is entered forcibly or occupied by people who have no legal interest in or claim to the property but also in cases where entry or occupation is effected by persons who have a legal interest in the property. In other words, Deputy Fitzpatrick wants to introduce a sanction of the criminal law into an area which at present is governed adequately by the law of property and in particular the law of landlord and tenant.
Today Deputy Fitzpatrick described the definition of owner in this Bill as being absurd, but to illustrate how, as he alleged, it was absurd, it was necessary for him to give an example and I think that even he, if he is honest,  must agree that the example he gave was absurd in the extreme. He spoke this morning at fair length about fee farm grantors and what they could and could not do and what offences they would commit or would not commit. I wonder how many people in this country, apart from solicitors and barristers, have even the remotest idea of what is a fee farm grantor. I wonder how many fee farm grantors there are in this country or how many people who are fee farm grantors know that they are fee farm grantors. I wonder how many people who are fee farm grantors would have the slightest interest in the property concerned or would seek or would have ever sought to interfere in any way in the running of it. I am sure a great many fee farm grantors are not even aware of the property in respect of which they hold that fee farm grant because all they are entitled to is their rent charge. Their entitlement is to the rent charge and not to the land.
Mr. O'Malley: For Deputy Fitzpatrick to say that the definition in this section is absurd because fee farm grantors can do what he must admit are rather absurd things which no fee farm grantor has ever done or is ever likely to do, only highlights the absurdity of Deputy Fitzpatrick's argument. If he has to rely on such obscure matters as the rights or lack of rights of fee farm grantors, I am confident that there cannot be very much wrong with this definition. The Deputy goes on to make sweeping generalised statements about licences being given to landlords to do this, that or the other but he fails totally to advert to subsection (5) of section 1 of this Bill which says that:
I put that in at Committee Stage to make the position crystal clear but in spite of this Deputies as well as others outside have misrepresented the position  continuously and I can only conclude that they misrepresented it deliberately. I do not think that anything could be clearer than that subsection. In three lines it sets out that nobody is given a right under this Bill to do anything that he did not have the right to do before. However, the fact is that no matter how often it is repeated to the contrary, no landlord whether he is a fee farm grantor, a lessor, a mortgagee or anyone else with any interest in land, remote or not entitled to immediate occupation, is given even a tiny fraction of right to do anything that he does not already have. He is not given any extra rights nor are any rights taken from him. There is no change at all in the position of a landlord vis-à-vis his tenant or a fee farm grantor vis-à-vis the fee farm grantees or the other occupiers or a mortgagee vis-à-vis a mortgagor.
Deputy Cooney in supporting Deputy Fitzpatrick is in effect quite inconsistent because if these words “estate or interest in land” are taken out of the definition it will then become an offence for certain people, with whom Deputy Cooney was concerned on earlier stages, to remain forcibly in possession. The obvious example of that is a mortgagor against whom a mortgagee has obtained an order for possession. I argued at considerable length with Deputy Cooney on this point, not in any acrimonious way, on Committee Stage. I thought we had sorted that out. I accepted Deputy Cooney's point that a mortgagor against whom an order had been made should not be open to some sort of arbitrary ejectment. I made the point that the mortgagor in that instance had an interest in land because he retained an equity of redemption. I have since checked on that and I am informed that what I said at the time was right.
I hope the House will accept my effort to demonstrate the inconsistency of what Deputy Fitzpatrick says on the one hand and Deputy Cooney says on the other. In a sense I am not blaming them for this. This is highly technical, it is extremely difficult, it is very hard to understand it. I have  spent hours studying it. Here was an instance this morning of two Deputies who are purporting to make the same point—they are moving and seconding the same amendment—but in fact the reasons they ascribe to it are mutually exclusive because if Deputy Fitzpatrick's amendments were accepted for the reasons which he proposed the very things which Deputy Cooney wants to prevent would thereby happen. This matter is so technical and so difficult that it is regrettable that people who do not understand it from Adam and who do not know what fee farm grantors, mortgagors, mortgagees, equities of redemption or anything else are, will get up and make the most profound and sweeping statements about what is in this Bill, what is not in it, what it is purporting to do and what it is proposing not to do. The public are being continuously misled——
Mr. O'Malley: ——and the proof of that is in the situation that we have here this morning with two people proposing an amendment for diametrically opposed reasons, in fact. It is easy to see why they fell into that difficulty but unfortunately they did fall into it. This matter is very technical and it has been subject to a great deal of what I might call non-technical and purely political comment which does nothing to try to resolve any technical legal difficulties that there may be in the Bill.
Mr. O'Malley: Deputy Fitzpatrick made a statement that this Bill would bring the battering ram back into Irish life or give a battering ram to landlords. Nothing could be further from the truth. The fact is that subsection (5) of section I puts it beyond the slightest shadow of doubt that no landlord has the right to do under this Bill anything that he did not have the right to do before it. That statement of Deputy Fitzpatrick's, with all due respect to him, is totally false and he must know that it is false because if  he reads and if he understands, as he must, subsection (5) of section 1 it must be clear beyond a shadow of doubt that a landlord is not allowed to do anything under this Bill that he was not in a position to do before.
Mr. O'Malley: That is a very different matter. That is the very point that Deputy Cooney was making, that nobody concerned in a landlord and tenant relationship should ever be guilty of a criminal offence and that the whole thing should be allowed to go to civil remedies. The very point that I have been trying to make throughout this is that I want to keep the criminal law in it to the very minimum. I do not want the criminal law involved as a sanction in disputes between landlords and tenants, between mortgagors and mortgagees, between fee farm grantors and fee farm grantees, between lessors and lessees. I want to keep it out.
Mr. O'Malley: If I were to accept Deputy Fitzpatrick's amendment it would mean that as between landlord and tenant, as between fee farm grantor and fee farm grantee, the present position would not continue as it does under the Bill but in fact the criminal law could be invoked by either party against the other. In other words the Garda, the Attorney General are dragged into things which are not alone essentially but entirely matters of private dispute between two parties in a civil action. I want, as Deputy Cooney does, to resist bringing the Garda into that sort of situation. I want mortgagors and mortgagees who have a dispute, landlords and tenants who have a dispute, fee farm grantors and fee farm grantees who have a dispute, to fight that out as they do at the moment in the civil courts. I do not want it to be open to either side to bring in the Garda, to bring in the criminal law, in aid of them and I do not want this sort of dispute fought out in the criminal courts. These types  of disputes at the moment are fought out quite adequately to everyone's satisfaction in the civil courts. I want that situation to continue. For that reason I must reject these amendments because I do not want the Garda in it, I do not want the criminal law in it. I do not think I can say that often enough to try to get it across.
Where you have a situation that two parties to a dispute have certain rights in property of different kinds—there is a wide variety of interests or estates in land—those people should confine any dispute between themselves to the civil law. It would be a very retrograde step if the whole concept of criminal law were broadened to include that kind of situation. This Bill is designed only to deal with the type of situation where persons who have no colour of right, who have no estate or interest in land come in and forcibly enter it or forcibly occupy it.
When I talk about forcibly entering or forcibly occupying I want to make it very clear that these proposed offences are defined in this Bill. In particular they are set out in sections 2 and 3 which have to be read in conjunction with the definitions in section 1. These offences are forcible entry and forcible occupation. They are not squatting simpliciter. It must be something more. It must be either forcible entry or forcible occupation and that is a good deal more than squatting. Therefore, it is totally misleading for Deputy Fitzpatrick to say that if a homeless man and his family decide to go into an unoccupied or empty house for shelter they are automatically lodged at the gate of Mountjoy Jail. That is emotionalism of an extreme kind. It is worse than that. It is a gross misrepresentation of the position. Before there can be any question of a man being summoned in respect of any offence under this Bill he must have committed the offences set out in sections 2 and 3, forcible entry and forcible occupation. They are very different to simple squatting.
Mr. O'Malley: I made it clear at the very beginning of the Second Stage of this Bill several months ago, in the first speech I made on it, that the sort of situation where a man or family go into a place that is unoccupied for the purpose of seeking temporary shelter and while they do not seek to bar themselves in in such a way that they can remain permanently or semi-permanently there, those people will not commit any offence under this Bill.
Mr. O'Malley: I repeat that any person or family in those circumstances going in for temporary shelter are not necessarily—unless they go further and do the acts set out in the Bill—committing any offence. Therefore, to make this sweeping statement about homeless people looking for shelter being locked in Mountjoy jail is totally wrong and misleading. I do not know how often I must repeat that in order to get it across. I begin to despair. No matter how often I say these things if certain people get certain ideas about a Bill like this they will simply continue to propagate them regardless of the facts. The Bill could well become associated in the public mind with things that are not in it at all. I see in that a grave danger to the whole legislative process. You could have a situation, particularly when you put it the other way around, where it is alleged that things are not in the Bill which, in fact, are in it and the Bill is passed without public outcry for that reason. If what is in the Bill were known there would be a public outcry which might prevent the Bill being passed. That is the converse of the case here. Here we have the situation where it is alleged that things are being done in the Bill which are not being done and people who would otherwise be very much in favour of the Bill tend to feel they must oppose it for that reason.
Mr. O'Malley: I have dealt fully with the points made and as clearly as  I could. I have tried to explain them as best I could. Putting it mildly, the essential effects of these two proposed alternative amendments are highly technical and difficult to understand and even when one grasps them one must apply them in practice to a whole series of particular instances in the law of property. I think I have shown already the traps a person could quite unwittingly fall into in making generalised or sweeping statements on this matter. Quite unwittingly Deputy Fitzpatrick and Deputy Cooney are proposing the same amendment in order to achieve, as it were, opposite effects. That, in itself, is an eloquent commentary on the difficulties involved and had I not dealt fully with the other objections it would be a very good argument against the acceptance of these amendments because, whatever they are designed to cure, they would inevitably create far greater problems.
Mr. T.J. Fitzpatrick: (Cavan): The Minister has emphasised repeatedly in the discussion on this amendment and the mis-definition of ownership that he does not want to involve the criminal law in spheres where the civil law is adequate. In my respectful opinion if there is any field of operations in which the civil law is more than adequate to deal with the situation it is in the field of landlord and tenant. The Minister may say that is an argument in his favour: it is no such thing. What the Minister is doing here is encouraging the introduction of criminal activities into the relationship of landlord and tenant and then he is writing into the Bill in black and white that it shall not be a criminal offence. That is precisely what he is doing here. Activities of a landlord which, under the law as it now stands, might be regarded as illegal and might fall within the criminal code will, when this Bill becomes law, be specifically excluded because the measure when it becomes an Act will be regarded as the standard authority on the law of illegal occupation or forcible entry or forcible occupation.
The Bill has been introduced, according to the Minister, to tidy up the law and clearly state the law. In section 1 (3) it says that “nothing in this Act  shall apply to an entry or an occupation of land or a vehicle in the exercise of lawful authority or with the permission of the owner”. It does not matter what the owner does; he can shake this Bill in the face of any member of the Garda or any Minister and say: “Oireachtas Éireann decided that I could do what I liked because I am a fee farm grantor and even if I am not entitled to possession I am put in a privileged position.” It is no argument for the Minister to say that section 5 ensures that nothing in the Act can be regarded as conferring on any person any right to enter or occupy land which did not exist immediately before the commencement of the Act. It will say that while A, B and C will be guilty of a criminal offence, the remote landlord will not be guilty. I am convinced that the Minister is in fact introducing into the landlord and tenant code criminal activities and then proceeding to declare that they are not criminal.
Just now the Minister made some play about squatting. I did not mention the word “squatting” this morning. I know if there is a house with no doors or windows and somebody goes in and sits on the floor he is not committing an offence under this legislation unless he does so by threatening somebody outside that if he does not let him in he will beat him up or break his face. “Forcible” is described here as meaning “using or threatening to use force”—for the time being we will leave out “threatening to use force”. This means that if the door of a vacant house is closed, if a homeless man who has a wife and family comes along and puts his shoulder to the door, it could be said that he used force and that he has committed a crime. When this Bill becomes law that man may be arrested without warrant. I defy the Minister to contradict that.
Mr. T.J. Fitzpatrick: (Cavan): He has committed an offence under section 2. We should remember that we are talking about a homeless man who has a wife and children. Of course, if he leaves when requested to  do so that is all right. However, the absentee landlord who acts through his bullyboy and who uses ten times as much force has a charter in this Bill which will declare that he is not guilty of an offence. I am surprised that the Minister has tried to confuse the issue here by saying that a fee farm grantor is a rare bird and that fee farm grantees are few and far between. I would say that a large percentage of the homes in this city are held under fee farm grants or are carved out of fee farm grants. I know that in many towns most of the property is held under fee farm grants from local landlords. In many cases fee farm grants of two or three acres were given 50 or 100 years ago; they are now split up into building sites and houses are built on them. I am not a statistician but I should be interested to know what percentage of the houses in built-up areas are held under fee farm grants. I am sure the Minister would find a big percentage are so held.
I repeat that so far as section 5 is concerned it merely writes in some kind of pious expression, that it does not confer a right on the landlord to bully his way in, in that he is answerable to the civil law. However, it places him in a privileged position; it says he can act the bully as much as he likes and that he has subsection (3) of section 1 to protect him.
The Minister did not deal with the position of the mischievous or artistic landlord who wants to protect himself against the demolition of houses in Dublin. He can do this under this Bill because he can issue authorities ad lib to all the people who are interested in co-operating with him and they will not be guilty of an offence. I am pointing that out to demonstrate the absurdity—and so far as this Bill is concerned, the futility—of this definition.
The same protection should be afforded to law-abiding tenants against the criminal landlord as against any other person indulging in criminal activities. From the Minister's opening remarks I know that he sees the force of the objections I have put up against this definition but he has been advised  in the old and best departmental tradition that it is never likely that such things will happen in his time. He has probably been told that if he changes the definition he will run into other kinds of criticism. This is the kind of advice he has received and has accepted. We have heard this argument used in this House from time to time: that it is unreasonable to think somebody would be guilty of this kind of thing but that if the Minister yields he will let himself in for trouble in other directions. I am going to press this amendment.
Brady, Philip A.
Burke, Patrick J.
Connolly, Gerard C.
de Valera, Vivion.
Fitzpatrick, Tom (Dublin Central).
Gogan, Richard P.
Healy, Augustine A.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Clinton, Mark A.
Conlan, John F.
Coogan, Fintan. Hogan O'Higgins, Brigid.
Jones, Denis F.
Murphy, Michael P.
O'Connell, John F.
|Cooney, Patrick M.
Fitzpatrick, Tom (Cavan).
Governey, Desmond. O'Donovan, John.
O'Sullivan, John L.
This is again an amendment of the definition of “owner”. On Committee Stage the definition was extended by the Minister to incluude a person who remains in occupation of land after the termination of his tenancy. The reason behind this extension was, I think, to ensure that a person overholding on notice to quit or a decree for possession would not be guilty of a criminal offence and criminal sanctions would not be invoked against him. This is perfectly acceptable to me, but it does not go far enough. It does not deal with the person who stays on following the termination of a permissive occupation.
The amendment is necessary in that a permissive occupation is not a tenancy. There is no element of contract and, on the termination of such a permissive occupation, the protection the Minister sought to include would not be available. It is a very common situation to have tenants at will. I am thinking now of persons in occupation of gate lodges or houses in connection with their employment. Such occupation may have continued for a long number of years. There was a case in Tullamore lately where a family occupying a gate lodge, tenants at will or permissive occupiers, were evicted. They were not able to go as quickly as the landlord wished and they were actually evicted. I think they barred themselves into the gate lodge and there is no doubt that would have been forcible occupation within the meaning of section 3. I do not think the Minister would intend that such persons, who had been in possession, and their predecessors before them, of such premises should be guilty of a criminal offence under this Bill. That would be contrary to the spirit of the Minister's reasons for introducing his Bill; he said it was designed to get at people who resort to violent and crude methods.
My amendment would cover persons in the category I have described. A farm worker might have a house in connection with his employment. His people before him might have worked for generations on the same farm and been in occupation of the same house as permissive tenants. If there should be a change of ownership and the Land Commission or some German decided the cottage was needed and sought to remove the permissive tenant, having terminated his employment, and that tenant refused to go, he could be guilty of an offence under this Bill. That tenant should not be subject to the sanctions of this Bill. That is another example of persons who would come within the scope of my amendment.
The important thing is to ensure that any person with a right could not be guilty of an offence under this Bill. The Minister accepted that general principle, the idea being to keep the criminal law and the civil law entirely separate. As the Minister pointed out when he was alleging inconsistency as between Deputy Fitzpatrick and myself, it is just not possible to keep the two branches of the law separate. That is a defect in this Bill. That is the whole difficulty. The borderline between the two branches criss-crosses to the detriment of the law generally. The Minister, in trying to keep the criminal law out of what is a matter of personal  contention between two parties, must in some of the definitions and sections unavoidably allow the criminal law to enter and the persons in dispute would then, according to this Bill, have the option of taking their civil remedy or calling in the gardaí. The gardaí would possibly have no option but to act on the complaint made. At the moment they can refuse to interfere on the ground that these matters are essentially matters of civil law. The Minister says he does not want the gardaí brought into what are essentially title disputes, but it is inevitable this will happen.
I would urge the Minister to accept this amendment because it softens what could be a very harsh situation for innocent people very far removed from the type of person against whom the Minister aims this Bill. They would be far removed from the type of person who resorts to violent and crude methods for remaining in forcible occupation or taking forcible possession. The person covered by this amendment would be the exact opposite. He would be a person in possession for very many years but he might not have a legal right under the law as it stands; he would, however, have an unassailable moral case not to be evicted and to prevent eviction and that person should not be touched in any way by the criminal sanctions of this Bill. It should be a matter purely and simply for the civil law. If the owner uses the battering ram in those circumstances he is using it without the sanction of the criminal law; he is invoking the civil law as it stands. It would be sad to see an owner doing such a thing. Regrettably it happened in Tullamore, but that particular episode ended happily; the people who were ejected were housed by the local authority because the local authority had compassion for their plight. I should not like to see persons in that situation being arrested for committing a serious criminal offence. Persons in that category should be included in the exemptions: any person with a colour of right should be exempted from the penalties of this Bill. That person would not, I submit, be covered by the exemptions contained in subsection (5) of section 1 which says:
That would have nothing to do with the cases I have in mind where the permissive occupation of the tenancy at will would be determined. To determine it all at once is a simple demand of possession; there is not even the necessity to serve a notice to quit. The simple demand of possession followed by a summons can in most of these cottier tenancies permit the owner of the property to sue for possession. I would ask the Minister to accept this amendment.
Mr. M. O'Leary: The Labour Party support this amendment. There are many people who do not have a legal right to their continued occupation of the premises. The result of this particular section would be that the new powers given for their removal would mean that such people would be put in a most unfortunate and invidious position. Though they might claim, in Deputy Cooney's words an unassailable moral right to continue possession all power would be given to the caregories of owners mentioned in the Bill to remove them with the full sanction of criminal law.
Whatever the Minister may say about his overall intent in this Bill I do not think he can defend such a resulting situation. I do not know if the Minister expressed any willingness to accept this amendment but I cannot think of any argument that he could put forward for rejecting it. It seems to me an eminently reasonable amendment and one that possibly covers a great many other cases than those mentioned by Deputy Cooney and it protects them. There are possibly many agreements to stay on in tenancies which have nothing to do with a standardised position under the law, only the benevolence of the owner or the existing arrangement between the owner and the tenant protects these people. With a change of ownership a person who was not guilty either of coming on to the premises by force originally, or not coming on illegally,  could be in a very peculiar position if this amendment is not accepted. Such people living with full approval on a particular premises may after the death of the person who gave the approval find themselves in a very difficult legal position with the new owner who may claim rights under this Bill for immediate vacant possession. A case in Tullamore was mentioned and I am sure there are other cases around the country. I would join with Deputy Cooney in asking the Minister to accept this amendment.
Mr. O'Malley: I have every sympathy with the purpose behind Deputy Cooney's amendment. I have expressed myself already as being in sympathy with people involved in the particular type of cases which he mentioned but I am afraid, for reasons which I shall explain, I cannot accept the amendment. I am satisfied that if it was adopted it would curtail drastically the efficacy of section 3 which covers the offence of forcible occupation. In the type of case with which that section is designed to deal it very often happens that persons enter lawfully into a building with the licence or permission of the owner and, having gained entry, then proceed to remain in forcible occupation. If the word “owner” as defined in section 1 were to include a person who remains on land after the termination of the licence which entitled him to go in there in the first place the effect would be to exempt from the scope of the offence provided for in section 3 the very persons whose activity gives rise to the need to create the offence in the first place.
I fully appreciate that Deputy Cooney's amendment refers to permissive occupation and not to mere physical presence on land by someone who has permission to be there. Nevertheless, this is a criminal statute and it is to be expected that the courts would lean over backwards to give defendants the benefit of the most liberal interpretation of what might constitute occupation. Indeed, the Parliamentary draftsman has advised that if we were to seek to open the door at all by accepting this amendment we might well find we had opened the floodgates and that the  effect of section 3 could thereby be largely nullified. I am afraid I cannot undertake to accept that risk.
A further consideration is that acceptance of the amendment would mean that the scope of the definition of “owner” would be very greatly enlarged and we would have the anomalous situation in which a person merely being on land with the owner's consent and who remained on after the consent had expired would have an equal status, so far as the Bill is concerned, with the person having a proper legal interest in the land. I know that Deputy Cooney's concern is primarily with the type of case in which a person has been in occupation of a house for a long time under, for example, a caretaker's agreement, and then finds the owner's permission is withdrawn. In that connection I would invite his attention to the fact that if a person remains on in forcible occupation of the house in the honest belief that he has a claim of right to be there he will not be committing an offence under section 3 by virtue of the words at the end of subsection (1) “remains thereon in pursuance of a bona fide claim of right”. Deputy Cooney has mentioned the type of case that he would like to see covered and I agree with him that type of case is one in which a person or family have been in occupation of a gate lodge or a similar building for a very long time, often 50 years or more, and even though they have only been there as caretakers or licensees they, in a sort of vague non-legal way, regard it as their house. They do feel they have a claim to it. They have a very high and very strong moral claim to it and that claim is sufficient to bring them within the wording at the end of subsection (1) of section 3.
In any event, where there was such a situation, in practice the gardaí would not bring a prosecution because it would be clear to them that this was a case in which the occupier felt that he had a bona fide claim of right. There would be few who would dispute that feeling or that claim with him, in a non-legal sense at any rate. The nub of the difficulty is that if I were to accept the amendment, much as I  am in sympathy with it and attempted to do it, because this is a criminal statute and because the definitions must be made or construed by the court for the benefit of the defendant as widely as possible, mere invitees and licensees would be covered by it too because they are permissive occupants of a different type but they would come under that phrase. Somebody who goes into a shop or an office is an invitee or a licensee as the case may be and the situation would be that all those people would be exempted from the provisions of the Bill. Those people who go in as invitees or licensees to a business premises or a similar property and proceed forcibly to remain in occupation are the type of people we are endeavouring to deal with in the Bill.
I did think that, perhaps, if we added the words “excluding licensees and invitees” to the words suggested in Deputy Cooney's amendment I might be able to meet the point but I am afraid, on reflection, that will not work because the actual people in possession under a caretaker's agreement or something similar are themselves either invitees or licensees. They are more normally licensees. Because it is a criminal statute it must be construed in a way that where there is any doubt the defendant gets the benefit of it. I do not think that Deputy Cooney, in fact, need worry on the point that he has made because I think the words at the end of subsection (1) of section 3 will cover that situation in practice.
Dr. Cruise-O'Brien: The Minister has just told us that he has every sympathy with the motives behind the amendment, the purpose envisaged by it, but at the same time that he is not going to accept it. The main reason, as I understand it, for his non-acceptance was that this being a criminal statute the courts would, as he said, lean over backwards in favour of defendants under it and that, therefore, apparently, this tendency had to be compensated for or counteracted in the wording of the statute itself. It seems to me that this is an odd general principle to invoke the general principles of law and the general practice of the  courts. These are, in fact, designed to protect against the possibility of unjust conviction. If this humane tendency which is part of the legal heritage— only part of it—which does exist, is deliberately to be offset in the wording of our legislation so that the judges are as far as possible to be constrained in the other direction, it seems to me that we are introducing a very odd principle at this stage.
Dr. Cruise-O'Brien: I know. Only the Minister understands anything. This principle has been made very clear in a series of extremely arrogant interventions here. It is generally, I think, taken that one of the purposes of discussion by Members is to enable people to have a say who have no professional grasp of the technicalities involved. We are not supposed to be an association or group of technical people and if the technicalities are unclear it is the Minister's duty to explain them to the House and to do so in a reasonable tone without brushing aside all who differ from him as ignorant and incapable of discourse.
I do think that the principle invoked here by the Minister is a dangerous one and one which has a tendency in favour of draconian legislation and I think also it exemplifies the general state of mind behind this Bill which is one indifferent to or contemptuous of the whole structure of conventions which we know as civil rights and I think that in every detailed intervention in the discussion of every amendment here this pattern becomes more and more clear that the tendency of this Government is to introduce legislation and enagage in practices which may erode and eventually destroy civil rights in this country.
Dr. Browne: In relation to this humanitarian tendency, the case for which was made so forcibly, so convincingly, by Deputy Cooney, in fact, the Minister has simply no answer to it, to me as a layman. I support Deputy Cruise-O'Brien's plea to the Minister  to try to remember that he is talking to laymen and that is our function as legislators. We are laymen attempting to legislate and it is the function of the Minister to explain in the clearest possible terms to us as laymen so that we can take a decision one way or another, for or against his proposals, as representatives of the vast majority of laymen in the community. If he does not make his case clearly to us it is no good to dismiss us as not being technocrats in law and for that reason incapable of understanding what he has in mind.
It is of no use whatever to the unfortunate person to whom Deputy Cooney referred to know that the Minister is in sympathy with the general proposal that the person who has been in occupation over a long period of time should be protected but that he finds that, clever and all as he is, skilled and all as he is in the intricacies of the law and skilled as his advisers are in the law and as his Parliamentary draftsmen are, in regard to this case which he supports, the case for this type of person with whom he sympathises and in respect of whom he says there is a very valid argument for an attempt to be made to protect him in the way suggested by Deputy Cooney, he must say: “Technically we cannot protect them; technically it is outside the capacity of the Parliamentary draftsman or of myself who have given hours to the whole consideration of this question to protect these people and, therefore, these people shall not be protected.”
This is a very extraordinary attitude for a Minister or a Government or a Dáil to adopt. A case has already been cited and the case is simply one of a number of such cases, not only in rural Ireland but in urban areas as well, of a speculator who comes in, takes over a vast estate or a property and somebody happens to be in this property, in the lodge or in a cottage on the estate, in possession as caretaker, whatever it may be. This additional support is now being given against the person who has a traditional or, as the Minister himself admitted, a very strong moral case—“high moral claim,” is what he said—to continued possession of this property.
 Of course, this suggestion that the courts may lean over backwards keeps occurring in the governmental pronunciamientos on these different issues from time to time. Deputy Faulkner used it recently. It has absolutely no meaning whatever in law. I am surprised that a lawyer should advance it as if it had any meaning. I should like the Minister to say has it any meaning and if it has any meaning would the Minister try to explain to us why is it that the person mentioned by Deputy Cooney was, effectively, forcibly ejected from a cottage and if it was not for the humanitarian attitude of the local authority the person concerned, whoever he was, would have pursued the law against the leaning-over-backwards judge on the bench, if he was leaning over backwards—I do not know whether he was or was not. He was not very successful, apparently, because the person was in fact forced to leave the property and the local authority was forced, out of compassion for this unfortunate person, to provide him with a house and by so doing denied somebody else the right to that house. It all started with this person who took over the property and insisted on his rights in spite of this provision which the Minister says is in our laws and in spite of what he says about it being within the power of the judiciary to lean over backwards and interpret the law in their own way. It seems to me that if the law is drafted with such precision as the Minister insists there is, then there shall be precision in relation to it and there can be no way in which one can get around the precise words and phrases put in in this House by the Minister acting on the advice of his advisers. The Minister sweeps away the whole element of precision in saying that a judge has a right to lean over backwards and break the law. Has he the right to break it? Surely his job is to administer the law as we write it here in this House. If he has the right to break the law, what is the purpose of taking up all the time of the House by deciding whether it shall be an “if”, or “but” or whether it shall be “shall” or “will” lest the unfortunate judge be not clear as to precisely what we had in  mind when we framed the laws?
The Minister was contradicted before he sat down by the point made by Deputy Cooney in relation to the case in Tullamore. There are many precedents up to this and no doubt there will be many other cases subsequent to that particular one that will not be covered by this extraordinary new O'Malley principle of the judge in his bench leaning over backwards and breaking the law, bending the law, twisting the law, perverting, misusing or misapplying the law in order to try to honour the humanitarian principles for which, in my view, the Minister hypocritically expressed concern. It is no good coming here and supporting the sympathetic case made by the Deputy who proposed this amendment and then, with all the authority of the Minister for Justice and with all the legal expertise at his disposal, saying: “There is nothing I can do about it. I agree with the case being made. I appreciate that we should try to protect these people but the law cannot protect.”
Dr. Browne: They will not stand up in any court in this country. The Minister has admitted that because he has said there is no legal protection that can be given to this person other than this sanctimonious hypocritical assertion that the Minister shares this Deputy's humanitarian attitudes. The Minister does not share these attitudes because if he did he would devise a section——
Dr. Browne: Take the case of an ordinary cottier or occupant of a lodge. A German or a Frenchman may wish in Common Market conditions, when these people will have bought up land all over the country, to put somebody else into the dwelling and send the Irishman to the Rhineland or elsewhere. The German or the Frenchman will have the right to do so. It is no good the Minister saying that the gardaí will not take action or will  not bring a case because we know already of cases in which people have been displaced from cottages in circumstances of this kind. We have the specific instance mentioned this morning in which, lest the person concerned find himself on the side of the road as the result of an appeal by a person who had bought an estate, he was re-housed. In spite of what the Minister has said that the Garda would not take action in such a case, in fact, the Garda must bring a case if they are to administer the law. When the Minister says that few would dispute that, he is talking rubbish because it is not in accordance with the facts as we know them. When the Minister says that both the Garda and the judiciary can ignore the law, can break the law and need not apply the law——
Dr. Browne: The Official Reporter will no doubt verify that. If the Dáil record is not interfered with, as happens  so frequently, we will find that the Minister said the gardaí would not bring a case——
Dr. Browne: The gardaí must enforce the law and, even if the Minister for Justice comes in here and decides to exempt or in advance exculpate the gardaí for not implementing the law, then he is acting outside any powers he has, even as Minister for Justice. He cannot do that. The Minister is particularly careful to emphasise to us how meticulous we must be about every word, phrase, comma, sentence and section of a Bill which we discuss, debate and incorporate in law and then he proceeds to attempt to drive a coach and four through this particular legislation by saying: “As a matter of fact, because they will all be shedding tears about these unfortunate cases which you refer to, Deputy Cooney, they are exempted from this particular legislation. I cannot exempt them in so many words. Unfortunately we cannot devise a section which would protect them in the way we would like them to be protected but, take it from me, a nod is as good as a wink to the gardaí and the judiciary. They do not, in fact, have to carry out the law because they will understand that we in Leinster House did not mean to put this kind of person out.” The man in Tullamore, in fact, can now go back to his cottage. He can now vacate the local authority cottage and re-occupy the home in which he and his family lived for generations. He can now take up occupation in that house because, in retrospect, we have, with the authority of the Minister for Justice, said that he should never have been put out of the house; in fact, the gardaí should never have taken the case; in fact the  judge, if it were brought to the courts, would never have put the man out; in fact the local authority panicked because the man did not need a local authority house, he had a good house and nobody would have dispossessed him of the house and nobody ever will dispossess him of the house.
Mr. T.J. Fitzpatrick: (Cavan): I am not replying. I have not intervened. It is sometimes said that Parliamentary debate is a waste of time. We hear criticism of long Committee Stages and long Report Stages of Bills but as we get through a Bill of this sort I think the power of Parliament becomes apparent. While it might be going too far to say it is powerful when you have a Government with a majority who will not listen to the Opposition, it is certainly valid to say that it is a powerful forum for ventilating the rights of the citizen and for pointing out proposals in Bills which invade the rights of the citizen no matter how lowly he is.
I spent a considerable time here this morning trying to get the Minister to accept an amendment which sought to amend the definition of “owner” by deleting part of the definition which defined “owner” as a person having any interest in land. I did that because I thought that it was unfair that an absentee landlord, under a fee farm grant, who would never be entitled to ownership of land, could be entitled to come in and forcibly take possession of the land and eject his tenant and still would be immune from the provisions of this Bill when it becomes an Act. The Minister told me then that the civil law was adequate to deal with the relationship of landlord and tenant and that the tenant should use the civil law to get rid of the offending landlord.
We have gone, in this proposal of the Minister's, to the other extreme when it comes to the most humble type of tenant. I agree with some of  the Labour Deputies that they should not be criticised by the Minister for not being all legal experts. It has been a criticism of some people in this House that they have legal qualifications. By and large, this is a House of lay people speaking lay people's language, trying to understand it, and trying to bring common sense to bear on the deliberations of the House. We come to the other end of the scale and we are dealing with the most lowly type of tenant, the permissive occupant, perhaps not in strict legal parlance described as a tenant but somebody who has been in legal occupation of a building, the gate lodge which is the most humble type of abode that anybody can occupy, until perhaps he is no longer any use. He has occupied it for 50 or 60 years. He has become feeble and is not able to perform the services demanded of him. Is the landlord here to be left to his civil rights to get this man out? He is not because this permissive occupant, as the Bill stands, is to be brought within the criminal law, is to be treated as a criminal if he refuses to get out when the landlord tells him to do so. He becomes a criminal under this Bill. Such a contrast! The absentee landlord is to be above the law. The lowly permissive occupant is to be a criminal. It is to be perfectly legal for the owner of this house to take the permissive occupant—the herd, the caretaker—by the back of the neck and throw him out. He will not have to rely on the civil law and take proceedings in the district court under which he does not even have to serve a notice to quit because there is the most simple, inexpensive summary provision made for dealing with permissive occupants. You simply demand possession, serve a summons, go to the district court and get an order. That would be too much trouble to impose on the landlord in this case. Whether he is a foreign speculator, a native speculator or the Land Commission he is to be saved that trouble. He is to be able to go in forcibly and throw this man out by the back of the neck. If he is not fit to do it he can hire a couple of bullyboys to assist him and they will not be guilty of an offence under this Bill.
 I would not speak so strongly on this were it not for the fact that at the other end of the scale the Minister could not discommode the absentee landlord who wants to effect forcible possession and take physical occupation of a premises that he is not entitled to and the Minister must concede he is not entitled to it. He is to be left to the civil law but this humble caretaker, the permissive occupant is to be at the mercy of violence and force and the big speculator, although there is already the simplest and most summary machinery built into the law, as the Parliamentary Secretary knows. The argument that was put forward by the Minister in support of bringing the criminal code into forcible entry was—and to some extent I agree— that to get out a person who took illegal possession of property action must be taken on the title in the circuit court and that could go on indefinitely, but here we have the most summary provisions for getting out a permissive occupant, no notice to quit, no action on the title, simply a summons provided in the old days to protect the landlord and ensure that he would not have much trouble in getting out permissive occupants of this type.
The Minister was not here when I was speaking. I know he cannot sit here all the time but I shall conclude by saying that I was doing my best to point out that while the Minister is quite prepared to tolerate the absentee landlord using force against his tenant in respect of a building to which he is not entitled and is prepared to leave the tenant to resort to the civil courts to get him out, he is prepared to allow the owner or landlord to take a permissive occupant who has been in occupation of a building for 50 years by the back of the neck and throw him out. If the landlord is not able to do that physically he can get the Garda to prosecute. I say that is completely wrong and utterly inconsistent. At the highest level of the landlord and tenant code the Minister says the head landlord need not resort to the civil court or, in case the Minister says I am misrepresenting him, he is saying that if he does not resort to the civil court and takes the law into his own hands,  the Minister will not blame him and the Garda will not be entitled to prosecute him and the tenant can take civil proceedings. But when we go to the lower rung of the ladder we find that the owner of a gate lodge or a bit of land occupied by a man and his family for generations is treated very differently. If that man, after getting a simple demand to get out, does not get out, he can be bundled out and if he stays on, the criminal law will operate to throw him out as a person violating the criminal law.
I wonder does the Minister appreciate the contrast? Do the members of his party realise the distinction we are making here between the head landlord, on the one hand, and the lowest form of tenant life on the other? I will not accept from the Minister that a permissive occupant is not a tenant. He may not be a tenant in the hard definition of the law but he is a man who got into possession by rightful means and, perhaps, had possession for years by law and is only being thrown out now because the big ranch can no longer pay the rates and is being sold to some foreign speculator who does not appreciate the relationship that existed here and who cannot have his driveway obstructed or suffer the inconvenience of having somebody living on his property and gets the criminal law to throw them out. If the Minister thought hard enough about this he would accept Deputy Cooney's amendment as one in keeping with the spirit of his definition——
Mr. T.J. Fitzpatrick: (Cavan): I was not here when the Minister was giving them. Deputy Cooney will deal with those. I am dealing with this aspect of the matter and I am speaking principally to draw the contrast between the Minister's treatment of the higher rungs of the ladder and the bottom rungs.
Mr. Desmond: The failure of the Minister to accept this reasonable amendment, put down by Deputies  Cooney and Fitzpatrick, will, in practice, provide encouragement to landlords or their agents and owners, as defined in the Bill, to institute proceedings against, one might say, any occupancy on which they want to get their hands. Every occupancy will, in time, one might say, be brought into question. As Members of the House well know many thousands of occupancies are of a casual, traditional nature, a caretaker or general takeover nature. The structure of land inheritance, because of the history of land development and agitation by the people, is such that not many Members of the House cannot trace back more than a few generations without calling into question in many cases the means by which they or their forefathers came to live on a particular piece of property. There are many occupancies for which people would find it extremely difficult to produce watertight titles. The failure of the Minister to accept the concept of permissive occupation will give rise to considerable difficulty and agitation in the future.
Land values and property values generally have increased very considerably in recent years. We in this country have a great propensity for agitation and litigation in relation to land and its ownership and no law should be so devised as to form what one might call a lawyers' paradise out of a situation in which people can suffer severely. The definition of “owner” in section 1 is so wide that it is an open invitation to persons to indulge in such litigation. I am surprised that the Minister has kept on reassuring Deputies that in certain circumstances a prosecution will not evolve; these references bear no relation to what is in the Bill. I am surprised that a man who professes such legal expertise would fall into that kind of trap.
The Minister said he has every sympathy with those who have moral claims by virtue of traditional casual occupancy over a long period. He considered that if any such person found himself in court his moral claims would be respected; no garda would bring a prosecution or no judge would  feel constrained to lay the heavy hand of the law on such a person. The fact is that there is provision in the Bill that such could happen. I do not think any spiritual comfort the Minister might give to the person concerned will alleviate the worry we have in regard to this Bill.
The Minister also said that the Garda would not necessarily bring a prosecution and he was very irate when this was fired back at him by Deputy Browne. I heard the Minister say that a person who had a moral claim or was in traditional occupancy need not worry because the Garda would not be constrained to bring prosecution. However, that does not stop land agents. In these days when the mineral re-cources of the country are being subjected to close scrutiny it does not stop owners suddenly coming into possession of new title; it does not stop them from going to the Garda Síochána and from launching into prosecutions. Irrespective of the goodwill that may be displayed by the Garda Síochána towards the people concerned, they may not have the benefit of such goodwill if litigation is indulged in.
I do not think it is entirely proper that a law should be adopted on the basis of what a Garda superintendent might like to do. We do not legislate on the basis of the goodwill interpretation of members of the Garda Síochána. The Garda themselves would agree that this is not good law or justice. In conscience, the Minister should accept the amendment. It is reasonable and just and it will get rid of much of the complaints made in relation to the section, particularly by Deputy Cooney. We are in a difficulty on Report Stage because, once again, the Minister himself becomes the interpretative authority. He has taken interpretative responsibility to himself; he is not entitled to do this because what the law will say in the future is what matters, not what the Minister now thinks the law might interpret in future.
I have noticed in relation to the division already called on this section that such is the bemused contempt of the former Minister for Justice, Deputy Haughey, for this Bill he sits in the Distinguished Visitors' Gallery. He  has such contempt for this Bill he did not even vote for the Government this morning in relation to this Bill.
Mr. Desmond: At any rate his propensity for avoiding any contact with the voting procedures this morning is unique. The Minister should accept the amendment. The Labour Party fully support it and we consider the arguments advanced by Deputy Cooney to be fair and reasonable. Whether we are legal experts or not I do not think the petulant query by the Minister will get him very far in this debate. I do not know any property lawyer or any person of eminence in this field who has come out in favour of this section. I do not know of any authoritative source in that regard who is prepared to defend the Minister. The Minister should read the article by Senator Robinson in today's Irish Times and he would appreciate the public's repugnance of this Bill.
Dr. FitzGerald: Since I became a member of the Oireachtas, there are certain principles of legislation which I have understood to apply. First, that one should seek clarity in legislation and, secondly, that one should legislate in such a way that the law is enforceable and enforced. In relation to any Bill the Minister brings into the Dáil, because of inability to draft it correctly, he should not say that the law will not be enforced. I understood another principle of legislation to be that there is no problem of the kind we are discussing which cannot be resolved by some form of drafting. I understand the Minister this morning has been breaching these principles of legislation and has been knocking them down like skittles in relation to this matter. I was not here during part of his speech, but if I am not correct I am sure the Minister will put me right. I understand that the Minister has indicated that while he is in sympathy with the purpose of the amendment  he does not want to include more than certain types of cases within the amendment; he is not prepared to accept it in its present form and cannot devise an alternative. The Minister's solution is that the Garda Síochána will not prosecute.
This is intolerable, not only on a political basis between the Government and Opposition but as a principle of legislation. Our job in this House is to try to legislate to ensure that the law is clear and precise. The law should do what it states—no more or less. It should be drafted with clarity; the law should be enforceable and should be enforced. Any other approach leads to the law falling into disrepute.
It ill becomes the Minister for Justice to adopt the attitude he has adopted this morning, to suggest that while he is in sympathy with the idea, he cannot see how it can be done. He thinks the amendment goes too far and he is incapable of devising an amendment that would meet the point. His answer is to let the law fall into disrepute and not be enforced. We must protest against this attitude and ask the Minister to reconsider the position. Neither he nor any other Minister is entitled to adopt this position, above all a Minister for Justice who, one would have thought, would have available to him sufficient legal advice to enable him to re-draft an amendment if the form of the draft by the Opposition unintentionally goes beyond what the Opposition are seeking and does something which he is not prepared to agree to and when there is a clear principle with which he is in sympathy.
Dr. FitzGerald: That is one of many good solutions to this problem. I remain mystified as to what the Bill is doing before us, what purpose it is meant to fulfil—this has never been adequately explained to us—or why we are wasting our time discussing it when there is such urgent legislation before us which will not get through before the end of the session.
Dr. FitzGerald: There is agreement and agreement, a Cheann Comhairle. It has been suggested by those proposing this amendment that, if it is not passed, somebody who has a caretaker's agreement, somebody who is in permissive occupation, can be put out and can be sent to jail if he resists the process of being put out of property in which he has been in occupation possibly for a very long time. I think the Minister has not denied that this would be the position. He has only suggested that the law will not, in fact, be enforced, that the police will not enforce the law and the judges will not enforce the law.
Mr. O'Malley: What I said was that the words at the end of subsection (1) of section 3 might well preclude the police in many of these cases, or would preclude the police in many of these cases, from bringing a prosecution.
Dr. FitzGerald: That is a different point altogether. Of course, if there is a bona fide claim of right in those circumstances that is covered in the Bill, but we are talking about cases which may not come within that. It may be that some of the cases we mentioned  may be covered by that, but some of them may not.
Dr. FitzGerald: He may or he may not. It depends on the circumstances in which he is there and the nature of the permission given to him over that period. I have not got the legal knowledge the Minister has to know in what precise circumstances that constitutes a bona fide claim of right. There is a good legal authority here, and the Minister does not appear to have controverted it, that there are circumstances in which permissive occupation does not constitute a bona fide claim of right. If there can be such circumstances, then the Bill cannot be enacted in its present form without offending against the principle to which the Minister has subscribed, and which he has sought to implement by his acceptance of the concept of the bona fide claim of right.
It would appear from what has been said, and from what the Minister said himself, that the bona fide claim of right principle, which he has accepted, may not extend to some of these cases. It is the duty of both sides of this House to implement what is the clear wish of both sides of the House to cover these cases. We cannot allow ourselves to be put into the position of being told that we are incapable of drafting a Bill to achieve the purpose we want to achieve. That is something which Parliaments do not accept. The job of Parliament is to draft the Bill in the form they want it. It is well within the power of the Government and the Opposition, especially with the legal advice available to the Government, to do just that. It has been suggested, and it is apparently the position, that if a person in permissive occupation has not got what would be judged in a court of law to be a bona fide claim of right, the landlord can act against him with impunity under this Bill. I should like to ask the Minister whether this is the case.
One curious feature of this legislation is that in introducing section 2 the  Minister purported to be replacing earlier legislation. He said section 2 was necessary because although everything in it, as he claimed at that time, was in earlier legislation—the Forcible Entry Acts of the 14th and 15th centuries in particular—these Acts were so ancient that courts were reluctant to enforce them and, therefore, it was necessary to enact the same principles in a modern Act so that these Acts would be brought up to date. I was never quite sure that the Minister was correct in saying, as I understood him to say, that all section 2 did was to implement existing Acts and to codify or re-enact them.
My understanding of those Acts is that they were, in fact, enacted to prevent the displacement of a lawful occupier by his landlord by force and that problems arose in that century of a kind not dissimilar to those that have arisen in the past year or two of landlords or owners of property seeking to by-pass the civil law and take the law into their own hands by forcibly ejecting occupiers who were lawful occupiers and who were entitled to remain there until civil proceedings had been taken to eject them. That is what those Acts were for. As I pointed out in this House, the Irish Act of 1402 was distinguished from the earlier British Act by the special provision that, not alone was it an offence for a landlord or any other person so to eject a lawful occupier, but the occupier concerned was entitled under the Irish law to re-occupy at the end of that period, whereas in English law, although it was an offence to put him out, once he was out he had to stay out, as was shown by the Stoke Poges case in 1921. That was the Irish law on the matter.
This Bill does not repeal these laws. Am I, therefore, correct in thinking that they remain in force and that the situation now is that, if somebody in permissive occupation is, in fact, put out by a landlord in accordance with this Bill, both the landlord and the tenant or the occupier will be in contravention of different statutes and amenable to the criminal law? Is that the situation if these earlier Acts remain in force? This seems a rather curious kind of situation to create. If not, how  are the earlier laws not in force when the Minister is not repealing them? What is the purpose of section 2 of the Bill? The Minister said it was to replace the earlier laws but he has not repealed them. I am in a state of confusion as to what the law is or will be when this Bill is enacted.
This Bill does not purport to repeal existing laws designed to protect the occupier. Yet this Bill is designed to give to the owner of property rights against an occupier. It appears to me that under this Bill we are setting up an extraordinary conflict of laws in which everybody will be in the wrong. The Minister may find great satisfaction in seeing the whole lot going to jail but I do not think it should be our purpose to set up such conflicts of laws that, in circumstances of the kind contemplated here, everybody concerned on both sides is wrong and goes to jail.
The Minister is in a state of great confusion over this Bill. The House is in a state of confusion over it. We should have this point clarified before we go any further. Is it the case that the existing laws remain and that the Minister could have answered Deputy Cooney's criticisms in these terms? I want to know if the fact that he did not do so has any significance. Would somebody taking the action suggested here be in contravention of these earlier statutes? Are they still law? Is that the case or is the Minister claiming that they have fallen into desuetude and that they are not the law at the moment? What is the position? Who will offend against what law in the cases mentioned here?
The confusion between bringing in this Bill to replace earlier laws and not, in fact, replacing them and leaving a contradictory situation, and the Minister's ineptitude in refusing even to contemplate trying to enact the will of both sides of the House in this matter by saying he is incapable of finding a form of words to achieve this, have left us in an impossible position. The only thing we can do in these circumstances is to minimise the damage done by the confusion created by the Minister by pressing this amendment.
Mr. Pattison: I cannot see why the Minister cannot agree to this amendment. I know there are quite a number of occupiers of property in the circumstances with which this amendment deals. There is a certain amount of inconsistency between Government Departments because the guidelines laid down for local authorities in allocating houses to tenants do not give preferential treatment to people in houses such as these. According to the rules of allocation local authorities regard people living in houses such as these as being in good circumstances. I could quote from personal experience several examples to prove my point. The problem is aggravated by the fact that there is a very serious shortage of alternative housing for these people and, if this amendment is not accepted, we will be weakening the position of these occupiers and strengthening the position of their landlords. If this Bill is passed in its present form landlords will be able legally to eject, or engage a private army lawfully to eject, these tenants. The Minister has, I think, admitted that these people have a good case. We should ensure in any legislation we pass that these people are adequately and fully protected and that their position is not worsened.
Mr. Keating: I should, perhaps, start by begging the Minister to receive my efforts at expressing my ideas on matters legal charitably because, like many other Deputies, I am very far from being an expert in this field. It is possible to see a definite evolution in the law regarding property and the rights of owners of property. That evolution has been going on for 100 years now. We are long past the time when the law expressed the then current social opinion that the rights of the owner were in all cases paramount. Under that law the owner had a great deal of room to dispose of his property as he wished. We have seen in all sorts of matters a continuous circumscribing of these rights of ownership. We have seen it in the matter of death duties and the rights to pass on property. We have seen it in the right to export money from a country being severely limited. We have seen it in  continuing efforts of long duration to strengthen the rights of tenants as against the owners of property. We have seen all sorts of strengthening of the position of the person in an economically subservient situation. It is interesting, if one goes back, to find 700 years ago parallels in the law at a time when, prior to the rise of capitalism, the feudal ideas were strongly expressed in the law and the rights of the subservient and the lower classes were perfected.
As I understand the complex wording of this section, it seems to me that this is flying contrary to the direction of evolution in regard to property. It is a strengthening in a sort of 19th century capitalist sense of the right of the owner of property and a weakening of the right of the tenant. I am not clear what exactly the legal definition of tenancy is; let me widen it and say, therefore, a weakening of the position of the occupier and a strengthening of the position of the owner. This seems to me to be contrary to the spirit of this century in regard to the relationship between owners and tenants and owners and occupiers. This is retrograde because in our society we clearly need legislation which all the time discriminates in a way that strengthens the position of the weaker, the poorer, the non-property-owning sections of our society. Surely the need for equalisation and the need for social justice is recognised on both sides of this House.
It may be that I am failing to understand this rather difficult section, but it does seem to me to strengthen the right of the property-owner to occupy, dispense with and do as he will with that which he owns, contrary to the general evolution. This is an objection to the principle of this section which is, I think, the validation for the amendment we are now discussing. I think, too, that we have entered a very strange area; I say this again in ignorance and not as a lawyer; I am simply trying to proceed on the basis of common sense and, I hope, of goodwill in this area. It is no use saying: “Let us write it down that way and agree to it as a sovereign Parliament and let us promulgate it as the law of the  land because we all understand it will not quite work out that way.” It may be that I am misunderstanding the Minister, but this suggestion that the gardaí would not bring a case is not tenable because, even if we grant that the Minister is right in the vast majority of cases, one might get a cantankerous garda or one who in, perhaps, an unfashionable sense, felt it was his duty to carry out the law as enacted by us.
At times there are signs of too much discretion and it is often very unfair to vest that sort of discretion in the Garda. Their job is not to exercise discretion either to favour people by excusing them from prosecution, if there is a violation, nor yet to punish them by pushing a prosecution beyond that which is normally necessary: their job is simply to carry out the law as enacted, to use the old cliché, without fear or favour. I believe that is something the gardaí would wish themselves. I think they hate being put in the position in which, so to speak, a nod is as good as a wink: the law is on the Statute Book but it does not quite mean what it says.
The other side, the judges, then: it is, I admit, impossible to draw up a body of legislation which, just by reading it, can be applied to any situation. If that were the case we could computerise all the rules, ask the computer a question and the computer would give an answer. Judges, juries and all the rest of it would be totally redundant. There is no way in which one can remove the human element. Again, I do not think the judiciary like being put in the position in which they are showing benevolence because, if you show it on one occasion, what is the opposite of it on another occasion? Malice. If you are benevolent to one you balance it up by being malicious to someone else. You balance it and you do not get justice in every particular case. From the point of view of the judges and from the point of view of the garda this sort of sanction is undesirable.
I understand, and this is not an exact quotation, that the Minister said a person would have a high moral claim after 50 years. The sad experience that one has of the world is that a very  high moral claim is not worth a damn if there is not a legal claim which can be upheld. This world is full of people who have very high moral claims not to have been fired out of their jobs but who are nonetheless unemployed; it is full of people who have very high moral claims to have employment in their own country but are working somewhere else; it is full of people who have very high moral claims to occupy a particular house or piece of land but they do not occupy it. They do not have any claim in any sort of legally upholdable form. The world is full of people who have very high moral claims to things which they cannot enjoy. Were it otherwise there would be no injustice in the world and there is patently a great deal. The suggestion of a very high moral claim as far as I am concerned is utterly irrelevant to the process of reasonable law-making and should not be brought forward in connection with a piece of legislation at all.
The final thing which makes us wish to keep reiterating our support of Deputy Cooney's amendment is the extraordinary suggestion that it is not possible to find a form of words which would explain exactly what is intended. Surely this is to deny the possibility to legislate? If one cannot find a form of words to say what one means then one cannot make rules at all. If, on the other hand, the Minister is admitting, and I do not want to put words into his mouth, that the distinction, which he seeks to make for reasons which seem to me to be bad reasons, is, in fact, a distinction which could not be drafted in legal terms which would stand up in all circumstances, then this is a valuable admission because then the Minister is saying: “Yes, we want this legislation because we want to do something but it is not possible to draft it.” We can only say to the Minister: “If you are looking for a right which cannot be drafted into that legislation this is a right which this Parliament will resist giving to you.”
It is a reproach not just to Parliament inexpert and amateur as it is in the matter of laws to be given an explanation like this. It is also a reproach to the highly qualified public servants  with legal qualifications in the employment of the Minister. He is not the actual draftsman: he does not draft the law and if he does it is very irregular. There are people with a great deal of expertise and professional training to do this. I would be surprised if people with this background and this professional skill would come to the Minister and say: “We cannot find a form of words.” I very much doubt if any legal draftsman would admit such a thing. He would be knocking away the basis for the validity of the whole activity of his life as a draftsman.
It is the Minister's decision that a form of words cannot be found because, in fact, he is unwilling to expose the basic contradiction which exists in the heart of this section. That contradiction is that he wants to have a law which can be applied at his discretion or at the discretion of certain other persons in a selective way against people whom the Minister does not like. Were we to admit that sort of principle into law-making, were we to admit a partisan or a punitive principle, were we to admit that laws could be made to act against bodies or political activists with whom we happen to disagree we would be violating the principles on which this Parliament is built; we would be violating the many decent strands in the history of the evolution of legislation in the legal profession and we would, I think, be violating all the responsibilities which we have as elected representatives to the people who sent us here. This is, perhaps, an unduly lengthy intervention on what seems a trivial thing but, in fact, it is far from a trivial thing; it is essential.
We are still at the beginning of the Bill and no amount of amending, it seems to me, is going to get over it. There is a basic contradiction in the Minister's approach. One simply cannot draft legislation which will punish black people but not white people, left wing people but not right wing people, women but not men or some other such category which exists in one's mind. The law has to be the same for everybody and this is not intended in that way by the draftsmen. We cannot  leave it to the discretion of the Minister or to the discretion of the Garda. If we now enact it we cannot leave it to their discretion to apply it in that way.
Mr. Cooney: The amendment seeks to exempt from the criminal sanctions of this Bill persons who might remain on in the possession of cottages, gate lodges or other premises following the termination of a permissive occupancy therein. They might have been there as caretakers or in connection with their employment; they were not there as contractual tenants. The Minister concedes that the spirit of the amendment is acceptable to him but he rejects the amendment for a number of reasons.
The first and most startling reason to my mind is that he says it would, in effect, nullify the effect of section 3. Section 3 is the section which makes it an offence to remain in forcible occupation. I presume the Minister in saying that this amendment would nullify section 3 has in mind a situation where a person of the category sought to be protected by this amendment remains in forcible occupation but if the amendment were allowed that person would not commit an offence, whereas if the amendment is disallowed, as the Minister wants, that person will then commit an offence.
This, to my mind, is completely contrary to what the Minister has said all along as being the spirit and the intention behind this Bill. The Bill is aimed at subversives and people who deliberately occupy forcibly, with malice, property, whereas the person we are concerned with in this section is the very opposite type of person, the person who the Minister admits has a moral claim to be where he is. Consequently, it seems to be an extraordinary argument to reject the amendment and to say that the amendment would take that person out of the criminal sanction of the Bill.
Mr. P.J. Burke: On a point of order, there are 20 men down there giving their blood to try to help people and Deputy Cruise-O'Brien wants to try to destroy all this. He is not concerned with the people one way or the other. He never was concerned. He is only acting the blackguard, as usual.
Mr. Cooney: I was making the point to the Minister that his first reason for not accepting the amendment was that it would nullify section 3. The Minister has always indicated and propounded here that the spirit of this Bill was not to make any person who would have a colour of a right a criminal.
Mr. Cooney: Section 3 is intended to deal with persons who have gone into occupation and who remain in occupation in such circumstances that remaining there becomes forcible occupation. I think it was always the Minister's intention that the type of person who would come within section 3 would be a person who would originally have gone in illegally. I do not think it was ever the Minister's intention that section 3 would apply to persons who went in legally in the first instance, whether as contractual tenants or as permissive occupants.
Mr. Cooney: They are not permissive occupants. The Minister goes on to make a further point in reply to my amendment that the amendment,  by dealing with permissive occupants, would also cover mere invitees or licensees. That was the type of person to whom Deputy Crowley refers. I would suggest to the Minister that there must be a clear distinction between the two categories of persons in the sense that in the case of the person I seek to deal with, the essence of his position is occupation, occupation in the sense of being exclusive occupation, whereas the persons the Minister refers to, invitees or licensees, are mere visitors to a premises, are only temporary, and are not in any sense occupants. They are merely using portion of the premises for their particular piece of business and they could not by any stretch of the imagination, I would submit to the Minister, be considered to be permissive occupants within the amendment I propose.
Mr. O'Malley: They are, unfortunately. That is the whole root of the trouble. There would be no problem with the amendment otherwise. They are, and I have been advised of that several times by highly competent people. They are permissive occupants and the section must be construed in their favour. If people who go into an office and then kick everyone out and barricade it and all the rest of it, go into court afterwards and make the claim that they went in as invitees or licensees and if that is established, that is an absolute defence to them under the Deputy's amendment.
Mr. Cooney: With respect, I must disagree with the Minister and, with the greatest of respect to the advice the Minister gets, I should like to see that advice substantiated by reference to a judicial decision or to some authority to say that a person who is a mere invitee or mere licensee is a permissive occupant.
Mr. Cooney: For the life of me, I cannot see it. “Permissive occupant” in regard to the law of property invariably means a person who is in occupation. This is the essential difference between the two categories of persons.
Mr. Cooney: I was making the point that there is a very clear distinction to be made between people who are invitees or licensees and people who are permissive occupants. I make the point that the distinction lies in the fact that an invitee or licensee could not by any stretch of the imagination be considered to be an occupant. An invitee or a licensee is on a premises for a specific purpose. Generally, I have never heard the word used in relation to the law of property. I have only heard it used in relation to the law of tort. I cannot and will not accept the Minister's contention that the words “permissive occupant” could let in persons who are invitees or licensees, that it could include the visitor to an office and that visitor who has locked himself in would be exempt from the Act if my amendment were accepted. I must say I just cannot accept that. If the Minister can produce authority or case stated to support that, then I would accept it but it would surprise me greatly.
Mr. Cooney: The Minister accepts the spirit of the amendment. His objection is one of drafting difficulties and that part of the drafting difficulties is that, as phrased by me, it would let in persons who are invitees or licensees. I deny this and say that, as drafted, in that regard it is quite in order. Do you follow me?
Mr. Cooney: The court must interpret the statute reasonably. I have no doubt that if a person went into an office to buy a stamp and decided to remain on and locked himself in and then tried to defend his action on the grounds that he was a permissive occupant, he would be laughed out of court.
Mr. Cooney: The distinction I am asking the Minister to draw is based on the word “occupation” in that the invitee referred to by the Minister could not be an occupant, as no court would hold him to be.
Mr. Cooney: I could say to the Minister that the courts will apply the law in a common sense and realistic fashion. As I pointed out, these are terms in the law of tort and they will not be interpreted in dealing with the law of property as those persons who have the right to occupy. It is so obviously ludicrous as to be non-arguable.
Mr. Cooney: The next reason put forward by the Minister for rejecting my amendment was that, while appreciating the spirit of the amendment, it is unnecessary because the last words of subsection (1) of section 3 refer to a person remaining in occupation in pursuance of a bona fide claim of right. Again we are getting back to a rather nebulous but entirely praiseworthy sentiment. I proposed originally the insertion of the words “bona fide claim of right” but I did not propose them out of any sympathy with the Bill or for the Minister. My reason for proposing them was to try to soften the Bill so as to make its effect woolly when the time would come for it to be applied in the court, in an effort to try to nullify it because in my opinion the words “bona fide claim of right” can only lead to the court metaphorically scratching its head and saying “What the hell does this mean?” If a court seriously has to consider the words “bona fide claim of right”, it will not consider them in reference to any moral issue and neither will it consider them in any layman's language. It will consider them in the light of the word “right” meaning a property right and the property right can arise only under some contractual tenancy right or under documentary evidence of title or some evidence of ownership. I do not think that a court faced with the problem of interpreting a praiseworthy sentiment—and that is all the words “bona fide claim of right” are—will give any moral interpretation. In the situation envisaged by the amendment, a court faced with those words would say to itself that a bona fide claim of right arises only if the person is there as a result of a contractual tenancy or under a legally documented title.
I do not think that a court could allow itself to say that a bona fide claim of right is referable to this case where all that is involved is a moral right. The court will say to itself that it is not a court of morals but a court of law. Consequently, the Minister's argument that those words would give protection to those whom I seek to protect does not stand up in that regard.
Another point raised in rejecting  the amendment is that it is unnecessary in the sense that the gardaí would not prosecute or would not dispute this claim. This is moving on to dangerous ground and I submit to the Minister that this is no argument for his rejection of what is acceptable in principle. The gardaí should have no discretion as to whether to prosecute because they have the utmost sympathy with the type of person whom this amendment is intended to protect. Everybody would have this sympathy but that would not relieve the person from the rigour of the law. Therefore, I submit to the Minister that this is not an answer to my argument.
There is no doubt that the principle implicit in this amendment is acceptable entirely to the Minister and the kernel of the Minister's argument against accepting the amendment is that there are drafting difficulties in the way. Drafting difficulties should never prevent legislation that has merit even if it means rephrasing completely the section and altering the structure of other sections.
Mr. Cooney: The Minister has yet to go to the Upper House. These things should be done if by doing them the end is desirable and is one that would prevent injustice to a person who, as the Minister admits, should not suffer any injustice. The Minister says that while such a person should not suffer any injustice he did not think he would suffer any injustice because (a) the courts could hold that he is on the property under a bona fide claim of right, (b) the gardaí might not prosecute or (c) the courts would lean backwards to be lenient with this type of person. These are not valid arguments because they are not capable of being enforced rigidly and consistently. A person in the predicament of having to depend on such non-legal protection is not being protected by the Minister and is being subjected to bad legislation. I urge the Minister strongly to reconsider the problem. If it is merely one of drafting or restructuring the layout of the Bill, I would ask him to accept the amendment. The Dáil divided: Tá, 49; Níl, 57.
Clinton, Mark A.
Conlan, John F.
Cooney, Patrick M.
Dockrell, Henry P.
Fitzpatrick, Tom (Cavan).
|Flanagan, Oliver J.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Murphy, Michael P.
O'Connell, John F.
O'Sullivan, John L.
Brady, Philip A.
Burke, Patrick J.
Connolly, Gerard C.
de Valera, Vivion.
Fitzpatrick, Tom (Dublin Central).
Gogan, Richard P.
Healy, Augustine A.
Kitt, Michael F.
Lalor, Patrick J.
Lemass, Noel T.
Tellers:—Tá: Deputies Begley and Cluskey; Níl: Deputies Andrews and S. Browne.
Amendment declared lost.
Mr. Pattison: I move amendment No. 5:
In page 2, to delete all words after “tenement” in line 31 down to and including “accordingly” in line 33.
This amendment seeks to amend the provision whereby a person acting on behalf of the owner can be construed as the owner. This is most objectionable. We had experience of what people acting on behalf of owners can do and already on Committee Stage we  cited the Hume Street case. If this section is passed without amendment it will give rise to wholesale development of such practices. It will encourage owners to engage private armies to do bullyboy work for them. I can even visualise advertisements in our papers, perhaps, in the “Positions Wanted” columns in which private armies will offer their services to landlords and big property owners with all kinds of inducements, guaranteeing prompt service and success.
We have already discussed the definition of “owner” as distinct from a person or persons acting on behalf of the owner and we have seen how unsatisfactory the definition of “owner” is. Extending the definition to a person or persons acting on behalf of the owner makes the definition far too loose and can make it cover practically anyone. It will give rise to all sorts of problems. It will make the work of the Garda far more difficult because it is much easier if one wants to get occupiers out of a house to get them out with one person and much less troublesome than with a group of ten people who will be legally entitled to use an amount of force and will be legally entitled to do an amount of damage in the ejectment process.
As we will see later, the damage these private armies can do will have to be paid for by the unfortunate occupier. These people acting on behalf of the owner will be really responsible to nobody when their defence is that they are acting on behalf of the owner. They can even justify the use of physical assault on people. This amendment should be accepted. It will help to restore the balance so that the unfortunate occupier will have some protection not only from being ejected but also from physical assault and damage to property. I do not think it is the intention of the Minister to encourage the formation of this kind of private armies or gangs of bullyboys but that is what the definition will achieve. Also, it will give such groups the protection of the law. If these groups go to eject somebody they will have the protection of the peace keeping force, whereas the occupier will not. We want to correct this by our amendment which I hope the Minister  will accept. I do not see why “owner” would not be as effective as a person or persons acting on behalf of the owner. We have experience of what this type of activity can lead to. We shall only be creating a situation in which many breaches of the peace, to put it mildly, will occur and creating the environment which leads to breaches of the peace.
I do not think that the amendment, if accepted, will detract from the Minister's intentions in this Bill but that it will lead to a more peaceful process if the Bill goes through and will restore the balance that is now heavily weighted in favour of the big landowner or landlord.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
Mr. T.J. Fitzpatrick: (Cavan): In normal circumstances one might accept as reasonable a definition of “owner” which included any person acting on behalf of the owner. However, that would presuppose that the definition of “owner” was reasonable. The definition of “owner” in this interpretation section is so unreasonable that to extend it to include someone acting on behalf of the owner would be unacceptable to me. I have done my best to convince the Minister that he should limit the definition of “owner” to include only a person entitled to occupation. The essence of this Bill deals with occupation: its title is “Prohibition of Forcible Entry and Occupation Bill, 1970”. Here we are defining “owner” as anyone having an interest in land or building or a vehicle, irrespective of whether he is entitled to occupation.
I dislike harping on this all the time but it is the foundation of my consideration of this Bill. We will create a situation whereby an absentee landlord, who has leased his property for 10,000 years, can delegate someone in this country to act on his behalf; he can take possession of the property but he is excluded from this Bill. That is my main reason for supporting this amendment. It could be used by an absentee landlord holding only a very slight interest in the land. He could  authorise teddyboys to harass the tenant; they could go in night after night, they could force their way into the house and then say they were acting under the authority of the landlord and they would not be guilty of an offence. This is another of the absurdities that can arise because of this definition.
It is a pity that when the Government introduce a measure in this deliberative assembly they do not listen to reasonable suggestions that are put forward. Had they done so in this case, so far as I am concerned it would have curtailed the debate to a considerable extent. However, the Minister has refused to budge on this and, as I have said, I think it is because of the built-in attitude of the establishment. They want to make sure that all the gaps are closed, that there is no escape, even if it means enacting dangerous legislation. They use the argument that it will not be availed of, that we can always rely on the forces of law and order to act in a reasonable manner.
I do not accept that argument. It is unsound in regard to any criminal legislation but it is particularly so in regard to this Bill. Not only does this Bill confer powers and rights on the Garda Síochána, in spite of what the Minister has said, it confers rights in a roundabout way on lay people— people who are not subject to discipline, not subject to Parliament, to the Minister, or to the commissioner of the Garda Síochána. This is one reason we should be slow to extend powers, particularly when we are extending them in favour of the absentee or native landlord against the tenant.
If I accepted the definition of “owner” as reasonable, I should find it difficult to support this amendment as fully as I do. However, I do not accept the definition of “owner”. It is unsound and out of line with the principle enshrined in this Bill, namely, the protection of the occupier. This Bill does the opposite. I made my position abundantly clear on this issue on the Second Reading of the Bill and right through Committee Stage. I know that the Minister was coming  with me to some extent—perhaps, only to the extent that he said he would consider it. When I insisted on raising my objection to the definition of “owner” on various sections of the Bill subsequent to section 1, the Minister reminded me that he had already told me that he proposed to consider the matter.
The fact of the matter is that he would not be let. We are drifting fairly quickly towards accepting what we are told by certain advisers of the Government. The result is that we were told here the other day that ten Acts of Parliament have been declared unconstitutional by the Supreme Court or the High Court since 1937. It would be interesting to know how many more will be declared unconstitutional, or are unconstitutional, as a result of the recent Supreme Court decision. It would be more interesting still to ascertain how many would be unconstitutional——
Mr. O'Malley: What has this to do with the amendment?
Mr. T.J. Fitzpatrick: (Cavan): I am arguing on the basis that it is impossible to get the Minister to accept any amendment. It would be more interesting still to know how many of these Acts would be found unconstitutional if they were challenged or if people had the courage and the finance to challenge them in the superior courts. This all follows from the refusal of responsible Ministers to yield an inch on measures once they bring them in here. They are afraid they will not have the big stick and they steamroll them through the House.
I think I have made my position abundantly clear. I pointed out this morning the inconsistency in the definition of ownership. I certainly could not be a party to accepting an extension of ownership to include the agent of an owner and I do not think that should be accepted for the purpose of this Bill.
Dr. Cruise-O'Brien: In supporting Deputy Pattison's amendment I should like also to register a protest against the manner in which the Minister and his supporters have treated the House  during the debate on this Stage of the Bill. Just now we had a situation where Deputy Keating was speaking from these benches and there were two members of the Government party on those benches, the Minister and one other——
An Leas-Cheann Comhairle: This does not arise on the amendment.
Mr. O'Malley: This comes well from a man who comes in here once in three or four weeks.
An Leas-Cheann Comhairle: If the Minister will permit the Chair, the Deputy should address himself to the amendment.
Mr. Desmond: He was doing far more positive work.
An Leas-Cheann Comhairle: Deputy Desmond should allow Deputy Cruise-O'Brien to continue.
Dr. Cruise-O'Brien: With your permission, a Leas-Cheann Comhairle, I venture to submit the point that it is relevant to this amendment and to every other amendment on this Stage of the Bill that the Minister in charge should treat the House with reasonable courtesy.
An Leas-Cheann Comhairle: The Deputy should make an argument for the amendment.
Dr. Cruise-O'Brien: Very well. I accept your ruling but I think this matter is of importance in relation to the Bill and to this amendment. The amendment put down by Deputy Pattison arises from an acute consciousness here of the abuses which can be perpetrated by persons acting on behalf of an owner especially when, as Deputy Fitzpatrick pointed out, the term “owner” is defined as widely as it is here.
We have seen in the Hume Street case the use of brutal and unnecessary violence by persons commercially employed to act on behalf of an owner and applying unnecessary force and violence in so doing. We think this is a dangerous trend. We think that the enforcement of the law should be left  to the Garda. In other countries, and in the United States under the Pinkerton system, in particular, we have seen the growth of private law enforcement bodies acting on behalf of private commercial interests. We have been concerned to see this same trend creeping into this country, apparently with some measure of Government approval and connivance. During the last election members of the Government appeared with a sort of Praetorian Guard furnished by these commercial enforcers and appliers of force.
This is socially undesirable in the highest sense in that the people used for this purpose have not the kind of training or the kind of discipline which the Garda have. They are not carefully trained over a considerable period in the limitation of their authority. In general, perhaps, they are not of the same standard of education as the Garda are. They do not look forward to an established secure career. I do not want to malign them collectively as a class, or any class collectively, but included among them are, perhaps, some adventurous toughs who take up this work and go on to something else.
We think it very undesirable, particularly when these extended powers of coercion are being introduced in this rather extraordinary Bill, that there should be any language in it which may tend to give licence to this kind of operation. We hope the Minister may be able to see and understand the nature of the concern behind this amendment and accept the amendment.
Dr. Browne: This amendment is particularly important because, if it is not accepted, then, as Deputy Fitzpatrick said, ownership is extended to include any individual or agency nominated by the legal owner of the property. I make the plea of the layman enmeshed in a lot of legal jargon which he does not fully understand, for understandable reasons, that this kind of sweeping power included in one line of the section could change the whole implications of the words “ownership of property”, “ownership of a house”, “ownership of an estate”. This is an extraordinarily  emotive phrase in the language of a capitalist society and it is wrong that we should, by the use of half a dozen words, vest this power in the individual owner of property.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
Dr. Browne: At first the layman tends to be very impressed by the tortuosities of the lawyers, the legalisms and complicated phraseology but, when one is presented with three or four words like this, words which can so change the law and vest so much power and authority in an individual, power and authority, we are led to believe, which can only be vested in any individual as a result of the most complex and intricate laws going back into the roots of history, the other thing one hears about the law, that the law is an ass, seems to be very much closer to the truth. If it is as simple as this to transfer ownership with all the power that ownership implies in a capitalist society, then we should not be as frightened as we tend to be by this factor of ownership in a society such as ours. I am reminded here of Alice in Wonderland when, on asking what a word meant, she was told that it meant whatever meaning the user of the word wanted it to mean. It seems to me the Minister is here taking on this magic power to use words to transfer authority from one individual to another and, as Deputy Fitzpatrick said, there are circumstances in which one must be permitted to transfer ownership; but, in this set of circumstances, the authority to transfer ownership is for a very specific purpose and the purpose is, if necessary, to evict, eject, or look for ownership, or occupation, of a property occupied by another individual whether as a squatter or in any other capacity.
The Minister plays two tunes here. He has done so consistently throughout the debate on this Bill. Most Deputies on this side of the House throughout the discussion have shown humanitarian and liberal attitudes in their attempts to try to keep off the Statute Book the very worst and, in  our particular historical context, the most harrowing and evil powers of landlordism, going back to the terrible evictions, the famine, the expropriation and consolidation of estates, all these lovely euphemisms to cover the appalling brutality and inhumanity of landlords over the centuries here in Ireland. This side of the House has consistently pleaded with the Minister not to vest in individuals these extraordinary powers for dealing with unfortunate individuals who squat in houses or take possession of houses because of the failure primarily of the community, of the State, of the Government, to discharge their responsibilities and give these people houses. These people are not doing this for fun. No man is going to take his wife and children down the road and into a derelict or an occupied building, risking the terrible emotional assault and possible physical assault on his wife and children, without great thought to the consequences.
We have consistently advocated that the Minister should provide legislation, if I may coin a phrase, with a human face and have some compassion for these people and not expose them to the great dangers which must eventuate if care is not taken in this particular section to amend it in the way suggested here by Deputy Pattison.
In my life as a protester I have seen the forces of law in action and felt them in action on a number of occasions as well. I suppose the last time was in the Hume Street incident in which I participated, along with other Deputies. That was the first time I saw the emergence in this country of the private army, the private bullyboy, the private strong arm man in action. As it turned out on that occasion it was a girl who was assaulted by this particular bullyboy and fortunately, if I remember aright, the girl was able to take action in the courts and was able to show that this private bullyboy had overstepped the law.
As events have turned out, because of the benevolence of the Minister for Justice and his concern for the rights of the landlord as opposed to the rights of the ordinary citizen, that private bullyboy will not overstep the  law the next time; he will not hit an unfortunate girl on the back of the head, or wherever it may be, and throw her to the ground. She was not a member of any subversive organisation, she was a youngster who had a very ordinary, reasonable sense of the aesthetic value of a beautiful street in her own city of Dublin and she was attempting to assert her right to protest against the attempt to vandalise that very nice street and in the process of doing that she was physically assaulted by this particular bullyboy.
I was very impressed at the time because the gardaí were there too. The interesting thing about the gardaí was that they refused to intervene, correctly, while I was there anyway. Now whether they should or should not have the right to intervene the important thing is, and will be, the way in which an intervention is carried out. This brings us to the nub of Deputy Pattison's amendment, the sense of responsibility used by individuals in implementing the law. Earlier we heard the Minister, on the humanitarian side of the Jekyll and Hyde performance he is giving here, telling us that in fact the gardaí need not prosecute and even if they have not read his speeches telling them that they need not prosecute the judge need not convict if in fact the guard does happen to prosecute. That is the humanitarian side of the Minister showing, but we then have the other side of the Minister who says, when a reasonable amendment of this kind is suggested, that it must be ruled out because in fact there is no form of words which would give the protection required without in some other way weakening the Bill.
As I said earlier on, we have this loose string of half a dozen words here whereby he tells us that we can authorise an individual, who goes along with a cheque book and buys an estate, to give power and authority to another individual, group of individuals, or agency to do more or less what they like. The Minister is giving authority to a German, Frenchman, Dutchman, or anybody else, who may not even know enough English to be able to tell the Irishman to “get out” and may  have to get somebody else to tell him, to put somebody out of a cottage in which he and generations of his family before him have lived.
Mr. O'Malley: What amendment are we on now?
Dr. Browne: They say in Hume Street the position was that the man apparently acted ultra vires and that will not happen again. We will get further repetitions of this kind of scandalous action of members of a private army. We believe this is a very loose provision. It is such a loose provision that as Deputy Fitzpatrick has said it is more than likely to be questioned in the courts and found as so many Acts passed by this House have been found, to be contrary to the Constitution.
Our problem is that the Minister is allowing an individual to delegate his power to a completely untrained individual hired simply because of his ability to act in a strong-arm capacity when he is told to and without any serious background of training or experience of discipline or tradition which we feel are the absolute prerequisites for any individual or group of individuals in whom is vested the great powers of compelling somebody to leave a particular building.
Progress reported; Committee to sit again.
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