Wednesday, 24 February 1954
Seanad Éireann Debate
Professor Hayes: May I say on the general principle I quite agree with what Senator Hearne said on the Second Stage that the Houses of the Oireachtas are superior to the courts in so far as the Houses devise the law and the courts interpret it? When the courts have interpreted the law, it is extremely bad practice that a Parliament should come along and reverse a decision to the detriment of the persons who had benefited by the interpretation given in the courts. That is what is objected to. There is no question but that we are superior to the courts as far as making the law is concerned.
One other point. It is not a question of the landlord or the tenant. It is not a question of any section, rich or poor, landlord or tenant who get something from the courts. It is generally felt by most lawyers and by nearly all constitutionists that such a person would be allowed to retain the rights he has got from the particular court decision and that any amendment of the law which purports to put the law back into the position it was meant to be in should only apply to subsequently tried cases.
I feel that in Section 3 the Minister has effected a compromise. He has left the decision to a person who got the decision. He endeavoured to make in this section changes which will mean that the decision will not weigh too heavily on the person who lost the  particular case. From that point of view it does seem to be a reasonable compromise. When I say that I am, unlike Senator O'Reilly, a person without practical knowledge of the courts as they work.
Mr. Boland: It applies to these old houses. In this Rent Restrictions Act we provided that the district justice in his private chamber could apportion the valuation of a particular room in one of these tenements. Only unfurnished apartments come under the Rent Restrictions Act. In order to be unfurnished the furniture or services, that is, electric light and heat, should at least be 25 per cent. In the section in which we were making this decision we said the court would fix it instead of saying the district justice. Since 1946 they have proceeded on the basis that the intention was there. It was not spotted that we did not put the district justice down instead of the court.
The practice is that a person who feels the rent is too high gets a provisional order. The district justice then makes the order. The landlord is told that this order has been made and he gets three months within which to appeal. In this case the solicitor for the landlord did not appeal. I do not know whether it was deliberate or otherwise. The time was up and I am told that when he looked into it he found a flaw in the Act and he got the whole thing quashed.
Professor Stanford: A fundamental principle of legislation is involved here and I think it is a very serious matter. The proper government of a country depends on a balance between the Oireachtas and the law courts. I can see that the law courts and the judges might well take umbrage at this measure. They, exercising their functions as part of the management, so to speak, of the country, made certain rulings. Apparently they were right, having regard to the terms of the 1946 Act. As far as I can see—I may be wrong; it is a very technical point— we are now removing that by what, to my mind, amounts to retrospective legislation. Although the Attorney-General and others seem to take a different view, and they are naturally more competent to judge, I think we should look carefully into this matter. Very important constitutional crises have arisen over a clash between the judicature and the legislative body.
We can go too far in this. I do not think we have a right, under the ultimate principles of legislation, to enact this measure. It virtually amounts to retrospective legislation. I think that the law courts and the judges may well take a poor view of it. I should like to hear a lawyer speaking from the point of view of the courts on this matter.
Mr. P.F. O'Reilly: I share the views expressed by Senator Hayes in regard to what Senator Hearne said. Senator Hearne and the Minister are quite right. It was never intended that the district justice in chamber would not have this power but the Legislature did not give him the power; therefore Senator Stanford is  quite right in saying that we are now stepping in by retrospective legislation to correct a mistake or an oversight of ours.
Let us imagine that the penalty for an offence was intended by the Oireachtas to be, say, two years' imprisonment and that in the course of proceedings against an offender whom it was understood would be visited with this penalty, it was found he could be sent to jail for only six months. If we here are going to allow retrospective legislation to be passed we may expect to have a Minister coming in and saying: “You will remember that in such and such case the Oireachtas had intended that if such a person as has been convicted recently of that particular offence were to be convicted he should get two years' imprisonment instead of six months. I want you to pass legislation to enable us to give that particular person two years instead of six months.”
Mr. P.F. O'Reilly: It is not a bit far-fetched. What has happened in this case is that the district justice made an order, as the Minister has explained; undoubtedly the Oireachtas intended to give him jurisdiction but we failed to give him that jurisdiction and that order which was wrongly made was subsequently quashed by the High Court, whose duty, incidentally, it is to quash orders of that kind. We are now turning around and not merely correcting the mistake in general, not merely giving a new to the district justice the jurisdiction we had intended, but we are also saying to the High Court in regard to the two cases in which the justice acted wrongly and in which the High Court, having had its powers invoked, quashed the orders: “We can operate without you.” If the High Court exercises its jurisdiction and quashes an order we restore the position by new legislation.
Mr. P.F. O'Reilly: In this case a High Court order was made quashing  the district justice's order. According to the legislation as it stood, on the day on which the High Court order was made the matter should end. Does the Minister say that that will have ended the matter when this Bill goes through? The tenant whose order was quashed may now come along and operate as if the law always had been as it may be to-morrow.
Mr. P.F. O'Reilly: I am not concerned with the position of any other tenant. I am quite ready to let the Bill go through to deal with any other tenant. That will not be retrospective legislation. That will be new or additional legislation so far as any other tenant is concerned but in so far as the tenant and the landlord concerned with the particular order are dealt with in this Bill, the intention is to restore the tenant's position that had obtained when the order was made.
On principle, if we have any regard for our obligations to our citizens we must set our face against retrospective legislation of this kind. We here should say: “It is unfortunate that that tenant was not within the Act at the time but the courts dealt with him and administered the law as it existed when they made their order.” I do not know what view the High Court will take of our action in this matter, but I should imagine they will think it strange that in one Act the Oireachtas gives the High Court power to quash orders which other courts made in excess of or without jurisdiction, and then, when these orders have been made under the authority of statute, the Oireachtas comes along and undoes them.
Mr. P.F. O'Reilly: I am sure the courts will think it very strange. I am against this entirely on principle. I feel we should not assist anybody by retrospective legislation. Certainly we can assist people by amending legislation or repealing legislation that we think is wrong, but if we have any regard for people's rights we should not permit or pass retrospective legislation.
Mr. Hartnett: I would like to ask Senator O'Reilly one question. If the Minister had phrased this differently and said that the tenant whose provisional order had been quashed by the High Court should be permitted to make a new application in due form of law, would Senator O'Reilly consider that that was a infringement of the dignity of the courts or an interference with the functions of the courts?
Mr. Hartnett: I can tell him that that would mean that one tenant or two tenants who have been unfortunate enough to be caught on the wrong foot are going to be victimised in respect of the premises which they occupy for all time while 10,000 other tenants get the benefit of that section of the Rent Act and of this amending Act. That would be inequitable and unjust.
Mr. Yeats: He expatiated at some length on the position that would arise if the Oireachtas, while a judge was practically on the point of sentencing a man to six months, thereupon extended the total sentence to two years. That is a very interesting problem and I have no doubt many more people than Senator O'Reilly would become excited if that occurred but it has not arisen. It is not in the Bill. The Bill we are dealing with has nothing to do with that and is on a very different plane. I would suggest that what we are doing in this Bill is what is done at least once every year in the annual Finance Bill. Everybody knows very well that the income-tax law, for example, is very complicated. That is a better instance to choose than the one Senator O'Reilly produced. A certain wise man is very adept at finding loopholes in various laws and because some of those loopholes  are discovered certain lucky clients of his get away with the lot. However, the next year the Minister for Finance closes up that loophole and they will not get away with it again.
Mr. Yeats: Yes. The person who gets away with the loophole saves paying income-tax but nobody else can try it. That is precisely what we are doing here. The position in regard to certain anomalies is now being remedied. All we are doing here is what has been done on numerous occasions in the annual Finance Bill and certain other legislation. I do not see that there is any real problem and certainly there is no injustice involved. I think Senator Hartnett's point is absolutely valid and that Senator O'Reilly wants to have 10,000 tenants coming in under this particular section of the 1946 Act with one solitary tenant remaining without the protection that the Oireachtas has given to the remaining 10,000.
Mr. Boland: What happened is this. The order was quashed because they had not jurisdiction. All tenants owed the difference between the contract rent they had paid and what was fixed by the court. We are not interfering with that. We are providing that they will pay by instalments. We are not interfering with the debt incurred through no fault of their own. We are just making the Act as we intended it to be. Surely we are entitled to do that? We are amending it. We are not doing anything else except saying that this provision has been shown to be defective and we are making it as the Oireachtas intended it to be. We are not interfering with anybody who has won or lost in this matter. I do not know how that can be objectionable. It is simply that an order was quashed. Therefore, it is as if it did not exist. Everyone who wants to avail of this, including the two persons concerned, can now get an order and  so can the landlord if he objects to whatever the court decided. They can still go to the court: they have their three months. If the court says: “There has been too much of a reduction. We will fix the rent at such a point,” the landlord's rights are still there. Of course, no one likes retrospective legislation but it has to be done practically every year.
Mr. Boland: If the court says: “You have not done what you purported to do,” surely the Parliament can say: “We slipped up there. This is what we intended. We will make it right for the future.” We are doing that in this case.
Professor Hayes: My name has been mentioned by the Minister. It is quite clear that we have a right to amend the law and to make the law mean what we think we originally meant. However, it is not correct to say that there have been frequent examples or, as far as I recollect, any examples of endeavouring to take away from an individual the benefit of the judgment of a court. Retrospective legislation —yes, if you like, but not if you take away from a citizen the benefit of the judgment of the court. Actually, the Minister is not doing that here, so he is giving his own case away, to some extent. Here, he is amending the law for the future. He is giving the people who lost the case the right to get the future benefit of this law we are making now and he is giving them the additional benefit of modifying the losses by letting the money be paid in instalments rather than in one lot. I hope I have made the Minister's case well. I should also like to say that there have not been examples of depriving a citizen of a judgment given to him by the court.
Professor Stanford: I support Senator O'Reilly and Senator Hayes in this matter. It is a matter of fundamental principle. It is a small point in relation to what looks, in a way, an unimportant Bill. This is how bad precedents can be made. It will be argued on a more important Bill: “We said so and so on the Rent Restrictions Bill. Why should we not say it now on this more important Bill?” We can deal with this in a calm manner. The fundamental question of the balance of power between the courts and the Legislature is at fault in this. For the benefit of those members of the House who do not know the Constitution by heart, as we all should, I suppose, I should like to read paragraph 5 of Article 15 of the Constitution, which is as follows:—
Suppose someone appealed to the Constitution in this matter. The Supreme Court might rule that this was a case of declaring acts to be infringements of the law which were not so at the date of their commission. These people had the benefit of the law from 1946 until now—and now we are going to deprive them of that benefit, retrospectively. That has now been conceded.
Professor Stanford: It sounded like it to me. Even if there has been retrospective legislation in financial matters—which I would dispute—I think the less we have of it the better, and the less suspicion we have of it the better. There is certainly a suspicion of retrospective legislation here. I appeal to the Minister, in all calmness and solemnity, to reconsider this clause. It goes right through the fundamental principle of the balance of power in our country between the Legislature and the courts. That is why I make this appeal in this matter.
Mr. Hartnett: May I add a final word and appeal for some clear thinking on this particular matter? Before I came into the House and  listened to what we all had to say on the matter I thought it was quite clear. I find a little more difficulty now. The subject has been somewhat confused by Senators on the other side of the House who are undoubtedly expressing an honest point of view in the matter. Surely no rights which have accrued to the landlords in question in respect of the orders which were quashed by the High Court on certiorari do remain to them. The provisional order having been quashed, the landlord is still entitled to recover the rent which the tenant pays up to the date that the district justice proceeds with the application. As I understand it that is what the Act proposes to do. For the life of me I cannot see how that can be suggested as an infringement of constitutional rights.
If a person made an application to the court last year or this year, for example, and got an order fixing a lawful rent, a basic rent, under the Rent Restrictions Act, 1946, and if next week the Minister were to introduce a new Rent Restrictions Act enabling tenants to apply to the court to secure the fixing of rents at a lower ceiling than now obtains, in accordance with a different rule of thumb, would that be an infringement of the constitutional rights of the tenants who had already obtained an order under the 1946 Act? Of course it would not. There should be some clear thinking on the matter. It would certainly not be an infringement. In my view it is clearly not unconstitutional. If Senators on the other side think it is they have a way of testing it.
Professor Stanford: I noticed the Minister nod his head when Senator Hartnett was speaking. As I learned at a recent court case, nodding the head is not evidence; it cannot be written down. I should like to have something that could be written down on the records from the Minister on this point. Will the Minister state categorically that the effect of this  Bill, as far as the rent and legal rights in respect of premises go, will be from the date of the enactment of this Bill— in other words, that there will be no effect on the rent as it was until this Bill is passed? If this is going back to 1946, and saying that as far as rent is concerned the state of affairs is the same as it was in 1946, that is retrospective legislation; but if it simply means that the state of affairs will be the same as if a district justice had made an order at the passing of this Bill, I am satisfied. Senator Hartnett made it seems very clear, but the more clear he makes things the more I begin to wonder.
Mr. Boland: The old contract rent is running until this Bill is passed. As far as this particular landlord is concerned, we are not interfering with his rights to get the arrears; but we are preventing any other landlords—unless they get in before we pass this—from taking advantage of the law that was made in respect of their tenants. That is as clear as I can make it.
Mr. Boland: I do not know whether any of these other landlords wish to go in at all. They have not made any move. When we change the law—which we are entitled to do—there is no question of them going in. The person who has got the decision, however, enjoys what he has got. I see nothing wrong in that at all and the more Senators think of it the more they will find it is right.
Mr. P.F. O'Reilly: On this occasion may I say that we have no objection? I would say to the Minister, however, that when he is coming here again to this House with legislation which will  have retrospective effect he must be prepared to spend some considerable time here.
Professor Stanford: With reference to certain “geographical” expressions which are used in this House in regard to “this side” and “that side” of the House, may I say also that one of the independent Senators has no objection to taking the remaining stages now?
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