Wednesday, 18 August 1971
Seanad Eireann Debate
Mr. J. Fitzgerald: Before I move amendment No. 1, I should just like to  ask the Minister is there any hope that, while we have 32 amendments here on the Order Paper, any worthwhile amendment will be accepted, or are we to take it that this is just a futile exercsei and that the Bill, as passed by the Dáil, will pass through Seanad Éireann and we are only complying with the law, in other words, that the Minister just stopped by here on his way to the Park and, no matter how worthwhile an amendment may be, not one comma will be altered in the Bill as a result of this Committee Stage today?
Mr. J. Fitzgerald: This is just information which, I am sure, the House would like to have, because this appears to me to be the annual farce in which you have the Seanad discussing Bills that have passed through Dáil Éireann, the Dáil is in recess and there is no hope. I should like to appeal to the Minister that if he feels that there is an amendment that he should assess and could assess, there will be no necessity to recall the Dáil in this particular case, that it could be deferred until the Dáil reassembles. I think that is a reasonable request to make in view of the fact that we have quite a number of amendments on Committee Stage. I would hope that would give this debate some little value.
In the interpretation in the Bill “forcibly” means using, or threatening to use, force. Now there could be considerable difficulty in many cases in establishing what is force. In practically every action you do, you may have to use a certain amount of force. In opening a door, perhaps the door of a car, as well as the door of a house, or a window, or opening a gate, a certain amount of force is necessary. To say  that the word “force” should supersede the word “violence” in this Bill is wrong. The word “violence” has a definite meaning; the definition would be “illegal force”. We believe it would improve the section if the Minister were to accept the amendment and delete the word “force” and substitute the word “violence”.
Miss Owens: I should like to support Senator Fitzgerald in this amendment. Much of the argument about this Bill from the Minister has been that he is very anxious that everybody who reads the Bill or anybody who might be affected by the passing of the Bill should be very clear as to what the implications are. I believe that “violence” to the average person is far clearer in regards to what is involved than the actual use of force because of some of the reasons Senator Fitzgerald has pointed out. Force is something that can be quantified or qualified. Violence is much clearer to the average person. People are doing something which is physically forcible; they are using an illegal type of force. I think the word “violence” would make this section much clearer. I am convinced that the Minister himself is very anxious that there should be no doubt, or no element of doubt, to the average person as to what is intended by the Bill.
Mr. O'Higgins: I should like to support this amendment. I think it is an extremely good amendment. Even looking at it from the point of view of the presentation of the Bill by the Minister, it seems to me that this amendment would fit in extremely well into the context of this Bill.
I think the Minister has made it clear enough in his Second Reading speech here that what is in mind in connection with this Bill is the use of violent means for the purpose of either illegally entering land or for the purpose of remaining in occupation. It is the violence that is used that will make the act a crime under this Bill. Under the definition section the word used is “forcibly” and “forcibly” is defined but, as Senator J. Fitzgerald  has indicated, there may be difficulty in defining the word “force”. “Forcibly” is defined as meaning the use or threatening of force. But what is force? Undoubtedly, merely lifting the latch on a door requires the application of a certain amount of force. At the same time I do not think I am taking the Minister up wrongly, or misinterpreting his attitude, when I say that that is not the kind of force to which he intends this Bill to apply. A person may open the door of a house, and he is using force to turn the handle, but he is not being violent about it; he is not exercising force—not, I think, in any event, force of the type the Minister wants to put an end to under this Bill.
From all of those points of view the choice of the word “violence” instead of “force” would be far better. It would make this Bill, to use a modern cliché, much more meaningful. It would certainly make it much more understandable to people who might possibly have in mind contravening the provisions of the Bill. If I am wrong, and if the Minister intends that any entry at all, peaceable though it may be, involving the opening of a door, any application at all of force, is what he intends to capture under this Bill, then I am afraid I have misunderstood the Minister's approach even on the Second Reading of the Bill here. I understood, as indeed other Senators did, that what the Minister had in mind was clamping down on subversive organisations who violently take action, take possession of land—that includes houses under the definition here—and retain occupation of land. This is subversive organisations and not the person who goes in and uses force simply by opening a door.
If the Minister decides that this amendment is worthwhile, as I think it is, I would very strongly urge on him not to allow the fact that the Dáil is in recess to deter him from acting the man and accepting the amendment.
Mr. Honan: It seems as if we are going to start today with splitting hairs about words. Any time that I ever heard of anybody making an entry into a house by interfering with a lock, or making an entry into land by wrenching a lock off the gate to make it possible  to open the gate, it is common language that the lock of the house was “forced” or the lock of the gate was “forced”. If somebody goes away on holidays and does not take as many precautions as he should before he goes, and he comes back and finds his house has been occupied by somebody who should not be occupying it, then I find it very difficult to describe such unlawful occupation as violent. I have never heard the expression that anyone used violence against a lock, a catch, a knob or a padlock on a barn gate. It is generally accepted in ordinary conversation, and even in the courts, that the expression normally used is that the lock, the door or the gate has been forced.
Mr. Honan: To quote the Senator, he said that if you just press down a latch and walk in you have used force. If you turn a knob you use force but you would, of necessity, be in possession without using violence. That would not be of any great help to a person who has been deprived of his property because he could not prove violence. The ordinary expression people use, and it is rightly used in the courts also, is that possession was obtained by forcing locks, catches, et cetera. I think the applicable word here is “force”. In a case where somebody gave the door a push, because it had a very light catch on it, if the owner of the property has to go to court and base his case on violence, I do not think he would succeed.
Mr. O'Higgins: Does the Senator not appreciate that, as the Bill stands, the sense in which force is used is that it has given rise to the application of violence to enter or to remain in occupation? I do not think I am misunderstanding the Bill in this regard. On my understanding of the Bill, it is in that sense that the word “force” is used. If a person enters peaceably and leaves when requested, then he is not committing a crime under the Bill. To get into an unoccupied house, the lifting of the latch must give rise to the  use of force. Although it is not intended to include the person who enters peaceably and leaves when told to do so under the terms of this Bill, at the same time by the continued use of the word “force” rather than “violence” in the definition section that person may be captured by the Bill.
Mr. Honan: I can understand a person twisting a knob or pressing a catch to gain entry and I do not think any sensible person would say he has used violence at that stage, but, on request to leave, if he refuses to leave, then the question of violence might arise as a secondary act. I do not think you could go into court and succeed in a case where a person has pressed a latch or twisted a knob—and this is Senator O'Higgins's contention—that he is guilty of force.
Mr. Horgan: I should like to support this amendment although I can see very well the concern expressed by the Senator who opposed it. I can sympathise with his difficulty in finding suitable words. It seems to be almost impossible to define “force” in such a way that would satisfy everybody. It is a word which is used in a wide variety of contexts and situations. For instance, we speak of the interplay of forces in our society. The laws we make, including this law, are not made in a vacuum; they are made in a situation in which there are forces of different kinds acting and interacting.
Mr. Horgan: The Senator will be relieved to know that I have left my dictionary downstairs for the time being. We use the word “force” in a number of situations which have nothing to do with the kind of physical violence which, I think, is intended by this Bill. I am concerned that a word with as many and varying implications as “force” should be used as a root word for one of the most important sections in the Bill. We speak about the forces that play in our society. It is obvious that there are many forces that play in society which are, perhaps, unhealthy and yet we do not do anything about them. Money, for instance, is one of the greatest single forces in modern society today and yet we do not choose to outlaw millionaires. I suspect the Government party would be in a very bad position if we did so.
The basic distinction which the Senator proposing this amendment has made, and I should like to underline it, is the distinction between force and violence. It is, I think, a very relevant and a very important distinction. To be hypothetical for a moment, if the British Government many years ago had seen fit to introduce legislation like this prior to the granting of Indian independence, the great non-violent campaign which was launched by Gandhi and which was instrumental in gaining independence for India, might have been cut off at the root. We must remember that in that campaign of non-violence, which was launched in India at that time, Gandhi made no secret——
Mr. Horgan: In relation to its use in this amendment. To me the word “violence” as put forward in this amendment is something which has a very clear and specific meaning, a meaning which is not at all carried by the word “force” and a meaning which, I think, should be written into the Bill if we are to have this Bill and if it is to have the effect that the Minister so patently intends it to have. When I spoke on the Order of Business earlier today a mental confusion made me refer to the now defunct Criminal Justice Bill. The confusion is understandable. I sympathised with Senator McDonald when he said in relation to this amendment—which is the first in a long series of amendments—that it is important we should have a statement from the Minister on his attitude to these amendments and to the whole application of amendments to legislation.
Mr. Horgan: In conclusion, I should like to suggest to the Minister that he might shorten the debate on this amendment, and, indeed, on every other amendment, if he undertook to combine this whole Bill with the remainder of the Criminal Justice Bill and bring it back to us.
Mr. O'Malley: The difference between the words “force” and “violence” must, inevitably, be one mainly of degree. “Violence” is defined in the Oxford Dictionary as one of the primary meanings of force. I would ask the House to bear in mind that the word being defined is “forcibly” and that it is therefore more appropriate that it should be defined in terms of the basic word from which it is derived rather than in terms of an entirely different word.
With regard to what the legal meaning of “force” is, or “forcible”, apart from deducing by analogy what it means from the circumstances set out in the definition here in section 1 (1), it  is worth quoting from the 36th Edition of Archbold, page 1306, where he states:
An entry by an open window or by opening the door with a key or by mere trick or artifice such as by enticing the owner out and then shutting the door upon him or the like without further violence, or an entry effected by threats to destroy the owner's goods or cattle merely and not by threats of personal violence will not support an indictment for forcible entry. There must be such force or show of force as is calculated to prevent resistance.
That shows pretty well precisely what Senator Honan has been saying. I think he has drawn the distinction very clearly and it is perfectly correct, which makes it quite unnecessary for me to amend the section in the way suggested and I would ask the House not to accept the amendment.
Mr. O'Higgins: Would the Minister agree there is a number of different ways of regarding the word “force”? I think the Minister's argument and Senator Honan's argument would be understandable if what was referred to in section 1 (1) was physical force. But there is no reference to physical force in the section at all. “Forcibly” means using or threatening to use force. If a person uses moral force, if a person endeavours to muster the force of public opinion, for example, is that force within the meaning of this section? It appears to me that it could be. It is simply a question of which point of view one takes.
Mr. O'Malley: It so very clearly is not that, it is scarcely necessary to say that. I have given Archbold's definition and examples and I think it puts the matter beyond any doubt. I am talking about “forcible” in the context of forcible entry.
Miss Owens: I am grateful to the Minister for his quotation from Archbold but I am sure he would accept that the average person in the State is not aware of Archbold and his definition of “force” and “forcible”.
 It is very important that in our interpretations of this Bill we clear up what is in mind and what is in the Minister's mind so that it can be on the record. In the first line of section 1, “forcibly” is defined in the context of this Bill as using or threatening to use force. I assume, from what Senator Honan said, that he maintains that any person using force just to enter the door—and I agree with him there is force used there—is covered. It was understood it is a physical act of violence that is involved here. If it is not I think it is a far more serious matter than we had already considered. Let us take an example of homeless people who just physically open a door of an empty house and go in for the night. If that is using force—and they may very well not know the definition, with due respect to the Minister—it is a very serious thing and something we should clear.
I sincerely believe that the word “violence” would be very clear to the average person for what is involved— that it means a breaking in, doing something physical which involves the use of force also—that it is a violent action and therefore it is something we are much more aware of as violence in our context of the use of the word, because force seems to have so many definitions. Some of them have been quoted here.
Indeed to follow on Senator Horgan's argument, the non-violent action that is taking place at the moment in the civil rights movement in Northern Ireland could be considered, perhaps, as the use of a moral force. That is another example of how words can create problems for people. I would sincerely ask the Minister to think of it in the light of the people it will affect. It will not necessarily affect the subversive organisations which the Minister states it is aimed at but the ordinary person on the street who may not be involved with any subversive activities but is in need of shelter.
Ruairí Brugha: As Senator Honan said, it seems as if we are to have a lot of discussion on what is the meaning of words. Perhaps Senator Owens was not following the Minister during the  previous session. Anybody who enters a premises and leaves when requested to do so will not be guilty of any offence. This covers the sort of thing she is talking about. What we are talking about here is forcible entry or occupation. I cannot see where the reference to moral force that Senator O'Higgins referred to comes in. What comes to my mind immediately is that if you break down a door or break the lock of a door it is forcing the lock. That is the sort of description that is intended. What the section really talks about is the use of physical force, either to enter a premises or to occupy a premises, and that is all. You cannot easily describe breaking down a door as simply being violent. It is forcing an entry into a premises. It seems to me, and I am not a lawyer, that the word “force” or “forcible” here is the sensible and reasonable word to use here.
Miss Owens: In reply to Senator Brugha, we are speaking about forcible entry and occupation not “or occupation”. It was made quite clear that they are two separate offences under the Bill. It is not one or the other. There are two.
Ruairí Brugha: When we get further on in the Bill Senator Owens will find that anybody who enters the premises, not forcibly enters, but enters the premises as Senator Owens was describing, when asked to leave if they leave, it will not be an offence. That is the way I interpret it anyway.
Mr. McGowan: I am quite interested in the new legislation. I can understand that we have many amendments and many different approaches to the type of legislation that is needed. I can understand Senator Robinson's proposal and that we should have a different approach. Basically, without claiming that one belongs to a party that can do no wrong and could not draft wrong legislation, the proposed Bill is practical. It aims at being understood by the section of the people that  are likely to be involved, and that is somebody who is not a professor of law. This is the best attitude one could have: who is this legislation to affect, who is going to understand it? To me this is the fundamental issue. I think the approach here is certainly accepted in general by the mass of the people in the country. I certainly see a great need for it. On Second Stage I listened to several people and one would nearly get the impression that there is no place affected except a few houses in Dublin— that the Dublin Corporation have a few houses——
Mr. McGowan: I will do my best. I should like to make my contribution and I should like to keep as near as I can to the points at issue. I know that we have many amendments but I want to say that most of the people who would be affected are very much opposed to the legislation, not on grounds that they can offer very sound arguments but they are opposed to this legislation in the same way as they are opposed to every other type of——
An Cathaoirleach: We are not discussing the general question of this Bill as a whole; we are discussing a limited amendment: “To delete ‘force’ in lines 12 and 16 and substitute the word ‘violence’.” It is a very limited question we are discussing at the moment.
Mr. McGowan: The word “violence” here is so limited that I have to discuss it, and I have to discuss the whole basis of what violence means here. In Donegal we have a group of people who organise themselves to take advantage of every situation, whether it is the misfortune of a housing need or an unemployment need. No matter what the unfortunate situation is, they are ready to cash in to the point of being violent.
I wonder if you can let me go on from there? If not on this amendment, I may have to mention it on one of the other amendments. In relation to any amendment to this Bill, the Minister  was very fair in his statements. He covered it admirably. The opposition to the Bill in general is very artificial.
Mícheál Cranitch: The point at issue is apparently which is the better word in this context, “force” or “violence”. To my mind the obvious choice is the word “force”. The word “force” connotes straight away pressure or the use of strength, a small amount of strength or possibly a great amount of strength to do something. In physics we envisage the triangle of forces, the parallelogram of forces, and the amount of force or pressure need not be very great.
Most of the cases where this Act would be invoked will deal with the opening of locks. We are reminded again of the forcing of windows, of doors, and so on and one does not think of doing violence to a door or to a lock or to a window catch. The word “force” has an ordinary acceptable meaning, whereas the word “violence” connotes something that involves great or uncontrolled strength, or bad temper. One thinks of force as being controlled and methodical. To my mind the word “force” is the ideal word here, and if this amendment were accepted, in all fairness to everybody —particularly to those in the legal profession—the Title of the Bill should be changed from Prohibition of Forcible Entry and Occupation to Prohibition of Violent Entry and Occupation.
Mr. Boland: I am a little confused having listened to this whole discussion. The Minister read out a definition which I took to be his definition of the word “force”. I wonder if he could give the House an example and if he might explain if it is covered by the definition as embodied in the Bill at present? I understood the Minister to say that under his definition of “force”, a person opening a door with a key, or entering a house by way of an open window,  would not be deemed to have used force.
In that case we could take the example of the Minister's famous subversive groups going to a house in Mountjoy Square, or any other Dublin area, and by the use of a key which happens to operate the lock, opening that door and going in and occupying the premises. If I interpret the Minister properly, that subversive organisation, having carried out that task, would not come within the scope of this Bill. Therefore, I wonder if the Minister could explain to the House if that is what he meant.
Mr. O'Malley: In reply to Senator Boland's inquiry, first of all in principle I am against giving explanations to the House of what would be the law on a particular topic, or replying to queries as to whether a given set of facts would, or would not, constitute an offence. The reason for my being against that in principle is that I was very heavily criticised elsewhere for attempting to do so, and for saying that some of the rather outrageous examples given would not be a breach of the Bill, when passed. I was told that I was impertinent to express any opinion as to whether anything was, or was not, or would or would not be a breach of the law.
It would be quite impossible to discuss any Bill in either House of the Oireachtas without in some way expressing opinions on the law. I was very heavily criticised for that, and for that reason I am loath to answer specific queries on whether a given set of facts would or would not be a breach of the law. I am also loath for the reason that there are 32 amendments to this Bill. They all deal to some extent with the deletion of certain words and the substitution of certain others. Therefore, the abstruse legal meaning of all those words is presumably to be called in question, and I am not capable of giving long precise definitions that I can apply to a precise and complex set of facts. I do not think that any other man would be capable of doing so either, unless he were very vain and foolish.
What Senator Boland referred to as my definition of “forcible” is not mine:  it is a matter for the courts to decide in each instance. What I read for the House was a quotation from Archbold, who is the leading practical authority on the practice of criminal law. If Senator Boland did not get the quotation, I think that it is a fair summary of Archbold to say that going in by a window or opening a door with a key, and similar activities of that kind, would not support an indictment for forcible entry. That is, they do not amount to forcible entry in the context in which we are discussing it. Archbold, of course, gives a number of authorities for that.
Mr. O'Higgins: It is all right for the Minister to adopt the attitude that he is not going to attempt to say positively whether any particular set of circumstances would constitute an offence under this Bill. He is wise not to make that effort. It would not be unreasonable for Senators to expect the Minister to say whether it is his intention that this Bill should apply to particular sets of circumstances that are sketched for him by Senators. If the Minister says he does not intend that a particular set of circumstances should be caught within the net of this Bill as an offence under the Bill and if it then appears to the Seanad that the Bill as worded is going to catch in its net as an offence the particular circumstances described, it would be the job of the Seanad to set about amending the Bill so as to make the intention clear. The Minister will not find me criticising him for adopting the attitude that he cannot adjudicate, that he cannot usurp the functions of the court in deciding what particular set of circumstances may or may not  be an offence. He can at least tell the Seanad whether it is the intention behind this Bill that in the circumstances described the people should be brought within the framework of the Bill.
Mr. O'Malley: In so far as I recall Senator Boland's question, the entering of a house by turning the key and walking in is not and would not, under the Bill, be of itself an offence, but if subsequently there is forcible occupation by barring windows and doors to keep out the legitimate occupiers, then an offence, in my opinion, would be subsequently committed.
Mr. Boland: The majority of Senators, if not all of them, were opposed last week to what is commonly known as squatting and we were all basically in agreement with the Minister's aim in trying to stop that practice. Surely under the definition of force as the Minister has read out, the subversive or other elements can still go along and by means of a master key enter the property and wait until they are requested to leave and then, if they leave in accordance with subparagraph (b) of section 2, they would apparently not be guilty of an offence under this Bill. So the act of entering somebody's property in order to draw attention to the fact that the property is not being used to the full can still be carried on, even if this Bill as it is written at the moment becomes law, without any change.
|Brennan, John J.
Cranitch, Mícheál C.
Eachthéirn, Cáit Uí.
Flanagan, Thomas P.
Gallanagh, Michael. Ó Maoláin, Tomás.
Ryan, Patrick W.
Honan, Dermot P.
Nash, John J.
O'Callaghan, Cornelius K. Ryan, William.
Lyons, Michael D.
McDonald, Charles B.
Mannion, John M.
O'Higgins, Michael J.
Owens, Evelyn P.
Prendergast, Mícheál A.
Quinlan, Patrick M.
Reynolds, Patrick J.
Robinson, Mary T.W.
West, Timothy T.
“forcibly” means using or threatening to use force in relation to person or property, and for this purpose participation in action or conduct with others in numbers or circumstances calculated to prevent by intimidation the exercise by any person of his rights in relation to any property shall constitute a threat to use force, and “forcible” shall be construed accordingly.
The purpose of this amendment is to delete every word after the first mention of the word “property” leaving the definition of “forcibly” simply that forcibly means using or threatening to use force in relation to person or property and then continue with the rest of the section.
The reason I did not speak on the last amendment, although I agreed with the underlying reasons given for it, is that I would feel, from reading the judicial interpretation of use of force and of forcibly, that it does mean violence or putting in terror, and it is in that sense that I understand it means using or threatening to use force in relation to person or property.
I have put in this amendment because I feel that the wording of the interpretation of “forcibly” amounts to a very vague and dangerous offence of conspiracy and this is an extension of the possibility of being involved in forcible entry or occupation, but is even worse than sections 2 or 3 of the Bill.
... for this purpose participation in action or conduct with others in numbers or circumstances calculated to prevent by intimidation the exercise by any person of his rights in relation to any property shall constitute a threat to use force, and “forcible” shall be construed accordingly.
I say it is a very dangerous extension because it is, in effect, an action of conspiracy and there is not even the  element of knowingly participating in action or conduct and the numbers or the circumstances may be calculated to prevent by intimidation the exercise by any person of his rights in relation to any property. This could be a very dangerous extension of the common law conspiracy to this form of statutory conspiracy which does not seem to require any mens rea and which would mean that even a person who was not aware of the activity, if he was involved as one of the numbers, could be indicted as having forcibly entered under the terms of the Bill. Therefore I put forward this amendment to delete this paragraph because it would be a very dangerous extension of the meaning of conspiracy.
Professor Kelly: My objections to this part of the section do not go quite as deep as Senator Robinson's. The amendment in my name is one which I would not describe as a pure matter of drafting. There is some substance in it but the substance is not of such a radical kind as that involved in Senator Robinson's amendment. My idea in suggesting a change of words here is as follows: the Bill as it stands proposes to catch in the notion of “forcible” what it describes as “participation in action or conduct with others in numbers or circumstances calculated to prevent by intimidation the exercise by any person of his rights” and so on. The words “action” or “conduct” seem to me to be tautologous. Action cannot be distinguished from conduct, or not usefully distinguished, and one of these words could go. The word “participation” seems to me to be too weak a word and not to be clear enough to leave the possibility open that a purely passive participant or a not very significant participant in some kind of demonstration, some miserable camp follower on the fringes of a crowd waving placards, will be caught in the provisions of this criminal statute. As the Minister knows perfectly well, I am anxious to put down subversion which takes this form just as much as he is and as much as everybody in the House is, but I am not anxious to provide a statute which is going to make it possible to prosecute criminally people whose connection  with an act of forcible entry is minimal My impression, which the Minister may be advised to contradict, is that the sort or mob which creates trouble of this kind very often has people on its fringes who have not really thought through the consequences of their action and are only in a very marginal way participating in what is going on. I should like to see the definition changed in such a way as to enable a defending counsel to say: “My client cannot really be said to have been actively participating in this. He may have been swelling the crowd a bit. Possibly he clapped or yelled or cheered, but it would be too much to describe him as being an active participant in this intimidatory exercise. Because it would be right for us to be cautious in creating new offences and in spreading the net to catch potential new offenders, I should like to see the definition narrowed a little so as to make it possible for somebody charged under this Bill when it becomes an Act to say: “My participation was of a passive kind. It was of a drifting-with-the-tide kind.” I do not want to chop words here and I do not want to hold the House up with this, but there is in practice in ordinary life a distinction between active and passive participation. In the campaign of civil disobedience which is promised in the North of Ireland it would be very easy to distinguish between those who participate actively in it and those who participate passively or who only participate marginally. I do not urge this with any particular passion because I hope it will be reasonably interpreted, but I believe the definition would be better if participating was strengthened by the adjective “active” and if the phrase “action or conduct” were cut by half because these two words seem to me to be the same.
Mr. O'Malley: With regard to amendment No. 2, I would like to say that the part of the definition of the word “forcibly” which that amendment seeks to delete is based on the meaning which has been given to the concept of the use of force in judicial decisions over the years in relation to the old statutory offences of forcible entry and forcible occupation. The Forcible Entry Act, 1381, speaks of an entry with strong hand or with multitude of people. According to the leading authorities it is not necessary in order to constitute the offence that force should actually be applied to the person of anyone. It is sufficient if there were threats to those in possession giving them just cause to fear that bodily hurt would be done to them if they do not give up possession, or the offence may be committed by going to the premises armed or with such an unusual number of people plainly to show that force would be resorted to. Not only does the definition of the Bill coincide with the interpretation which has been given to the concept of force in the existing law but it also accords with the forms of action and intimidation that are practised nowadays by the particular groups with whose activities the Bill is designed to deal.
With regard to Senator Kelly's amendment the only real change proposed in that amendment is the addition of the word “active” before the word “participation”. There is a redrafting of the remaining words in the existing subsection They do not materially change its meaning but the Senator will be aware of the doctrine of common purpose by virtue of which when several people take part in the execution of a common criminal purpose each is a principal in the second degree in respect of every crime committed by any one of them in the execution of that purpose. It is well established that if several people come together for the purpose of committing some unlawful act and if one of them actively commits the act in the sense that he fires a shot or breaks the window or whatever it happens to be, the others who were with him for that purpose but who were passive in the sense that they did  not pull the trigger, are of course guilty also. That is a fundamental concept that runs entirely throughout our law.
As far as I am concerned the whole of the definition of the word “forcibly” is important. If we were to exclude any part of it we would narrow considerably the existing long-established meaning in legal terms of that word and of the usefulness of it in this Bill.
Professor Kelly: The Minister is right in saying that people who accompany a man who fires a shot are involved in his offence. But it is precisely for this reason and because of the nature of the offence which we are now creating that I am anxious to try and narrow the application of the crime. The sort of demonstration which may culminate in a forcible entry—the parade or procession or something of that kind—is the sort of thing which is going to attract camp followers, fringe hangers on, people who are not really worthy of the attention of the criminal law—weak-minded youths and the like. My only anxiety is that if we draft the thing in this way, notwithstanding what the Minister says about the ordinary criminal liability of somebody who passively takes part in the commission of an offence, we may catch a large number of people whom there is no great point in trying to catch.
If people parade to, let us say, the office of British Railways or of the airline company of a country which at the moment is experiencing unpopularity with some section of the population here, and if they break into that place or forcibly enter it, I can very well conceive that some weak-minded youths will observe this happening and, perhaps, follow them in. I think it would be unnecessarily severe and harsh if the sanctions were to be applied to them, although they are passively participating—it would be certainly wrong to say that they were not participating—in the principal criminal conduct.
My other observation on what the Minister says is that if it is true that people who passively participate in the  commission of an offence are guilty in a lesser degree, but at any rate attract some of the guilt offence to themselves, it seems to be a strong argument against subsections (2) and (3) of the later section 4. Perhaps, I can save that argument until we reach section 4. The Minister seems to be trying to have it both ways. If I have understood him, his argument amounts to this: that he intends to catch, via the definition as it is, these people who are passive participators and they will be caught anyway. If that is true, I cannot see the necessity for the last two subsections of section 4, which virtually presuppose that the person or persons prosecuted under them will have been passively acquiescing in what the principal offender has done.
Mrs. Robinson: It is because I agree with the analysis of Senator Kelly that I would prefer to have this extension of the definition of “forcibly” deleted from this section. The wording is extremely vague. On the face of it, it is a charge of effective conspiracy and is very broadly stated. It would give rise to the type of situation where you would have a large crowd with less concerned hangers-on around the crowd, and they would, under the terms of this, be “participating in action or conduct with others in numbers or circumstances calculated to prevent by intimidation”. Only a hard core at the centre might know exactly what was going on and might have the intent against which this Bill is directed on the face of it, but they would all be liable.
As well as arguing that a section is very dangerous in the broadness of its application, one can also argue that it is not necessary. It is quite clear that if we enact substantial offences of forcible entry and forcible occupation, and if we have an interpretation under section 1 of “forcibly” meaning “using or threatening to use force in relation to persons or property”, then it is open to the Attorney General to bring in a prosecution for conspiracy to either forcibly enter or remain in forcible occupation of a property.
I quoted on Second Reading, and I shall refer very briefly to a recent  English case, Argent, Robinson and Others in the Court of Appeal in July, 1970, where there was a successful indictment for conspiracy to forcibly remain in occupation of a school under the Forcible Entry Act of 1429, in which Robinson and four others were indicted of a conspiracy of forcible occupation with others unnamed, of the buildings. It is clear that in a charge of conspiracy to forcibly enter or forcibly occupy a building the legal reasoning behind it would be a matter which would already have been judicially determined, whereas it is not at all clear from the broadness of the scope of wording such as “participation in action or conduct with others in numbers or circumstances calculated to prevent by intimidation the exercise by any person of his rights in relation to any property”, and that that would constitute a threat of force. It is undesirable to have very vague and far-reaching wording in a definition not only because it extends the commission of an offence of conspiracy to circumstances where nobody would like to see somebody prosecuted for an offence, but also because the offence of conspiracy will lie at common law anyway for any offence under this Bill. It is preferable that the definition be shortened and the conspiracy charge be brought at common law if the facts warrant it and in that case there would have to be sufficient mens rea and sufficient intent. I do not think it is as tightly drawn up or as acceptable as a common law conspiracy charge would be.
Mr. O'Malley: With regard to the point on conspiracy, I think it right to say that the essence of conspiracy is agreement, and agreement in advance, and there is no question in this section or in this definition of any sort of agreement, formal or informal, being entered into. What is envisaged is something less than conspiracy, because the coming together of a large mob could not be described as conspiracy. Certainly, I do not think any indictment would lie for it or any conviction be obtained.
With regard to Senator Kelly's points, I am not certain that I follow  them all, but it strikes me that to some extent there is a contradiction in what he said. While I take it that he is anxious to prevent this coming together of large numbers of people who constitute by their very numbers a form of intimidation, if you exclude all the people who are at the very centre or core of the activity, you, as it were, allow or condone the intimidation by force of numbers. For that reason I would suggest to the House that Senator Kelly's argument on that point does not really hold water.
Professor Kelly: I agree with the Minister's view about intimidation. I think that large numbers of people would be terrifying, even if they were not waving placards or shouting. I do not dissent from his anxiety to control this form of intimidation. I am not looking at it from that point of view. There is an existing common law of unlawful assembly; there is an existing common law of rout; there is an existing crime of rout where persons set out to accomplish an unlawful activity; and there is an existing common law offence of riot. Unlawful assembly, rout and riot are offences which, in my recollection anyway, have never been the subject of criminal prosecution here. Naturally, I have not got the Minister's statistics available to me and I do not recall questions being put down about this. My strong impression is that these common law offences would go a long way to control intimidatory mobs setting off to do something unlawful. That might not even be unlawful in the civil sense, which trespass certainly is, but it would have gone a long way to meet this problem.
I do not sympathise with the Minister's idea that the only protection we have against intimidatory mobs marching off to a house or a premises and threatening by their numbers violence to the premises or to the people inside the premises is this Bill. There is law there already which provides protection against such things. What I am concerned with, therefore, is not so much to provide us with a shield, which I believe we already have, as to make sure that the new offences we are creating  under this Bill do not catch too many people. In other words, they should not subject to too many criminal sanctions persons who could be dealt with in some other way.
Perhaps, I ought to have added to “unlawful assembly, rout and riot” the offence of committing a breach of the peace. Perhaps, in modern conditions they are not weapons which are as effective as the police would like them to be. If so, we should be devoting our attention to updating the law of breach of the peace, unlawful assembly, rout and riot.
I do not regard this Bill as essential for the achievement of the Minister's purpose. Naturally, I am concerned about the question of intimidatory crowds, but I do not sympathise with the Minister's apparent worry that unless this Bill passes we will not be able to deal with those crowds. I am more concerned that—and this is the reason why I put down this amendment—under this new legislation and with these new offences, we may catch in the net persons whose degree of guilt by any sensible standard is very small, if present at all. I am thinking more of the defendant in the district court, the circuit court or the central criminal court on indictment who is charged with an offence constituted by participating in intimidatory conduct. I should like to feel that that person would have a toehold somewhere in the law by which his counsel could say: “That man's participation was of an absolutely secondary kind. It added nothing to the intimidation of which the State complained, or anything which it added to it could have been dealt with by some other branch of the law.” We are dealing with a special new statutory offence here and this man's participation was entirely marginal and secondary and does not warrant the application of a penal sanction under this Bill.
I should like the House to be clear on this point before we go any further. It is not the case that the trouble which the Minister is trying to prevent, and rightly trying to prevent, cannot be dealt with at all unless we have this Bill. I think the Bill has a good  deal to be said for it. It will in some respects simplify the job of the police and the job of the courts in controlling this behaviour, but this is not the only way of doing it. We are creating new offences and that is something this Parliament should be very slow to do until it has made absolutely sure that the new offences will not catch anybody who is, in the ordinary sense of the word, innocent or as good as innocent. It should not catch anybody whom it would be a gratuitous cruelty to prosecute. That is the reason why I am anxious to narrow this definition to active participation.
In subsection (1), lines 13 and 14, to delete “participation in action or conduct with others in numbers or circumstances calculated” and to substitute “active participation in conduct calculated, by reason of the numbers of persons involved or of other circumstances,”.
In subsection (1), paragraph (c), line 24 after “otherwise,” to add “and whether such houses, buildings or structures are in a finished condition or are still in course of building, repair or adaptation,”.
There was some doubt in my mind as to whether I should proceed with this amendment. I certainly do not intend to press the matter beyond speaking once on it and finding out what the Minister's reaction is to the amendment. My view, although I am not an expert on land law by any means, is that the words in section 1 (1) (a), (6), (c) and (d) in the definition of “land” overlap to some extent. It seems to me that “messuages and tenements of any  tenure” is a phrase which must include, if not all, certainly the greater part of, “houses or other buildings or structure whatsoever”. I assume from the fact that paragraphs (a) and (c) seem to overlap that the definition is drafted with abundantia cautela and that the intention is to put the matter beyond any doubt and to put it beyond the power of a defendant to escape from the consequence of his action. If that is the intention of this excessively careful drafting of the definition of “land” it seems to me that it might be helpful—I do not put this forward as a contentious point; I put it forward simply for the Minister's consideration —to extend the definition of “houses or other buildings or structures” in such a way as to make it clear— although it would seem to me to be clear already—and to put it beyond all doubt that a house or a building or a structure is a house or a building or a structure for the purpose of the Bill even though such a building has not reached the finished condition intended for it.
What I have in mind is an offence of forcible entry or forcible occupation taking place in an unfinished house or in a block of flats or offices which are only present in a skeleton condition. If I were a justice or a judge I would have no difficulty in concluding that these premises fell already within the definition of “messuages and tenements” or “houses or other buildings or structures”. It might be no harm, from the State's point of view, to put the matter beyond doubt, particularly since the question of drafting indictments may be involved in a case where an offence under this Bill will be the subject of an indictment. It may be that a defendant, who has in substance committed the offence which this Bill is constituting, argues that because the indictment has specified a house he is entitled to acquittal because there was no roof on it. If I were a judge or justice that argument would give me no trouble. I thought it worth putting down the amendment to give the Government an opportunity of considering whether they might not make their own definition of “land” more watertight by extending it in the way that I have suggested.
Mr. Alexis FitzGerald: I should like to support the amendment. It seems to me that the effect of introducing section 1 (1) (c) may be to narrow the significant meaning of what would have embraced all that is in paragraph (c) other than caravans and mobile houses under the definition at paragraph (a) and that “structures whatsoever” would be construed as meaning a house or a building—particularly when you read the second part of paragraph (c) which refers to “parts of any such houses, buildings or structures whether divided vertically, horizontally or otherwise”— which is completed and is divided in some fashion. An unfinished building cannot be said to be divided. Any division, horizontally or vertically, is something you can only judge as being made when the building has been completed. The effect of paragraph (c) as drafted is so narrow as to exclude something that has not been completed. It seems to be purely a matter of draftsmanship. I do not think Senator Kelly wishes to press this amendment beyond getting the Minister's consideration of it. Senator Kelly's definition improves it and includes something that may by implication be excluded by the introduction of paragraph (c).
Mr. O'Malley: I have considered this amendment. I appreciate Senator Kelly's desire in putting it down to put matters beyond doubt but I quite honestly feel, and the draftsman feels likewise, the amendment is unnecessary because if (a) does not cover the position—which I think it does in any event—(c) certainly does. The words in brackets in section 1, subsection (1) (c) “(including caravans and mobile homes)” were introduced as an amendment in the Dáil. I think they were put down by me, but suggested, as far as I can remember, by Deputy O'Higgins. I do not think that the words which follow the words in brackets would be construed ejusdem generis with the words in brackets but that they would in fact be construed ejusdem generis with the words before the words in brackets which would quite clearly include part of the building. In any event, from the practical point of view, I do not think we are  ever likely to be troubled with the forcible occupation of unroofed houses or similar property.
Professor Kelly: I said I would not speak again; I am sorry for going back on what I said, but I am not sure that the Minister entirely understands what I had in mind. Suppose an indictment is drawn by the State in such a way as to accuse a defendant of having taken forcible entry contrary to this measure of a house, to wit, number whatever it is in such and such a street, and it turns out that the house is only in course of erection. Certainly in the law of contract, a contract to sell that thing as a house would involve the person representing it is a house in a breach of a fundamental term if there were no roof on it. It seems to me to be perfectly arguable, and if I were being charged under an indictment of that kind this would be one of my lines of defence. I certainly would say “I am being charged with having forcibly entered or forcibly remained in occupation of this house, but I dispute that it is a house”. If the indictment were drawn in such a way as only to mention that, I would be entitled to a day out on that point. If I were the presiding judge or justice I would not entertain it, but people have escaped conviction on points no more substantial.
Mr. Nash: I agree with Senator Kelly that if in such circumstances he were charged with forcible entry or forcible occupation of a house he would be entitled to a verdict of not guilty and would get it. But, of course, also if Senator Kelly were the prosecuting counsel what he would set out in the indictment is “lands.” The land includes “messuages and tenements of any tenure”. I myself think that (b), (c) and (d) of section 1 (1) are merely for, shall we say, the non-legal person to be quite sure that he knows the law and that, if the land is covered by water, for instance, it is included also. Some non-legal people might also think that a house is not land and, therefore, houses are set out. Likewise, “incorporeal hereditaments” are set out. But the indictment would undoubtedly charge the  person with forcible entry of lands. Then the definition of “land” would be given, which would include the whole house, the house partly constructed or even a house that has fallen into ruin or is under repair and has had the roof removed. I am quite certain that no prosecuting counsel in his sane senses would, in relation to a house in the course of construction, frame his indictment in that form, but would frame it simply for land.
Professor Kelly: I can remember at least one celebrated case here in recent years in which an indictment was so badly drawn by the State that a man popularly supposed to deserve conviction was acquitted by direction.
Mr. O'Higgins: I would beg leave to doubt that (a), (b), (c) and (d) were put in for the benefit of the better understanding of it by non-lawyers when one looks at “incorporeal hereditaments of any tenure”.
This amendment is being introduced because at this stage we are defining the meaning of the word “owner” under this Bill. If “owner” is defined in such wide terms, then it would exclude from the offences under the Bill certain categories of persons who might well be guilty of the sort of conduct that this Bill is being introduced to prevent. That is why I consider that to include in the definition of “owner” the words “any person having an estate or interest in land” means that a very wide category of  people would be absolved from the possibility of committing an offence of forcible entry under this Bill because in section 2 it states:
Therefore, that means unless he has any estate or interest in it under the definition section. It is possible to conceive of a number of cases where a person who had an estate or interest in the land might have no immediate or even remote right to possession of the land. What we must be concerned with in a Bill relating to forcible entry and occupation is possession and the protection of possession. I am thinking of the type of estates which are very common in Ireland of either a fee farm grant or even a very long or short lease given out by the lessor. This effectively deprives the fee farm grantor or the lessor, for so long as the terms and conditions and covenants of the lease are fulfilled, from possession. He has no right to possession of that property but he is still an owner in the definition section under the present wording of the Bill because he has an estate or interest in the land. There is a great danger here because—and I am certainly not prepared to admit this— either we state categorically that landlords and fee farm grantors are not the sort of people who would forcibly enter and occupy land and therefore we can safely exclude them from the Bill—that certainly is a form of logic which does not appeal to me at all; it does not make sense—or else we must remove this wide category of exempted persons, because they are owners, from the definition of “owner” under the Bill.
On Second Reading this argument was put to the Minister and he stated that the reason this phrase was inserted in the Bill was that the type of relationship between a fee farm grantor and a fee farm grantee, between a lessor and a lessee, a mortgagor and a mortgagee, was going to be kept in the civil law and regulated by the civil law and was not a matter for the  Forcible Entry Bill. But this presumes—and we are not entitled to presume this—that the person with an estate or interest in land has not forcibly entered on the land when he had no colour of right to do so and has not forcibly entered in the terms of the meaning of the word “forcibly” which we have been discussing.
As the Bill is at present drafted, any person having a remote interest and no right to possession of property who forcibly enters on the land, in lay terms, with a private army and takes it over cannot be convicted under section 2 of the measure because he is exempted. It is not a question of keeping that sort of relationship in the civil law. It is a question of exempting a wide category of persons who might have any estate or interest in the land from the operation of the Act. That is a loophole which not only does not make sense but is, in fact, obnoxious when one thinks about it.
Also, has she considered the cases in which this type of force has, in more recent years, been used in the country, where there is conacre and 11-month lettings of land. In those cases, in theory the person in occupation of the land is the person who makes the 11-month letting. He is not the conacre tenant or the person who enjoys the 11-month tenancy.
Very frequently the people who make these conacre or 11-month lettings are widows and helpless individuals on whom it is easy to bring pressure to bear. They get frightened easily. The 11-month tenant, or the conacre tenant, is not too worried, perhaps likes to fall in with local feeling, and does not lose anything if he is put out. There have been some instances recently of which I am aware where unfortunate widows, sometimes spinsters with nobody to  help them, have been rather terrorised regarding land lettings.
However, my argument is—and the reply given by the Minister on Second Reading does not satisfy me at all— that the person who objects to an owner as defined will not get a right to do it. In other words, any person with an estate or interest in land, and this could be a very remote interest and not entitling him to possession, will not get a right to do it. The only remedy which the person would have is a civil remedy, which would be an inadequate remedy in the circumstances, if there was forcible entry. If we are drawing up a scheme, we should not have a very wide loophole for somebody who has some colour of right as an owner, if “owner” is so widely defined. He will not be given a right under the Bill, nor will he be committing a criminal offence.
Professor Kelly: My amendment is not drawn in the same way as Senator Robinson's, but our point is basically the same one. If it is not out of order for me to do so, I should like to refer briefly to the proceedings in the other House where this point was argued for a very long time. I hope the Minister will not be annoyed with me, but on reading the debate it seemed to me that the Minister, although he came in for more criticism than he deserved on that occasion, showed an extraordinary unwillingness to see the point which Deputies Fitzpatrick and Cooney for this party were trying to emphasise. They may have made the conviction power of their own case weaker by taking the extreme case of the successor in title of a person who had made a fee farm grant in the year 1800. However, there are a whole range of persons described as owner who come  under the definition of owner as it stands in the Bill, and who represent cases which are not so extreme.
Take an urban instance of the owner, whether fee simple owner or owner under a long lease of a house, who lets part of the house as a flat on a weekly or a monthly or a yearly tenancy. That person has an interest in the flat, naturally. That interest is sufficient to bring him under the description of owner in the definition. In the absence of a breach of covenant on the part of the tenant, or in the absence of something in the contractual relationship with the tenant entitling him so to do, he has absolutely no right in the world to break into the tenant's flat. The tenant is as secure from that landlord as he is secure from you or from me.
So far as the criminal or civil law goes, it seems to me that the landlord in a situation like that should be in no more advantageous a situation than you or me. Perhaps it was a rhetorical device or a reduction to absurdity to introduce the fee farm grant situation. This part of the definition is very easily reduced to absurdity. The trouble about a reduction to absurdity is that the commoner cases are obscured. A little more than a year ago I noted a case in Dublin in which I thought it was wrong to give such publicity to what was essentially a private dispute between a landlord and a tenant. Wrongs of this kind are probably very frequent and this one was arbitrarily picked out. It was a case in which a landlord had trouble with his tenant, had waited until the tenant was out of the house and had then forced a window, got in and locked the tenant out.
As Senator Nash said, this Bill will not make that landlord's situation any stronger than it was. Subsection (5) of section 1 will not confer any right to entry or occupation of land upon him which did not previously exist. That is certain. The Bill is not strengthening the position of the landlord absolutely.
Professor Kelly: Under this Bill, he is not. That is the point. If Senator Nash reads the definition section he will find that the expression “owner” is so widely described as to include this man. It does not make him immune from civil remedy. In other words, the occupier of that flat found himself, his wife and children locked out by the landlord—perhaps rightly locked out: I shall not judge the case as I have forgotten it—who waited until the tenant was out, then broke through a window and locked the tenant out. That was an act of forcible entry. The landlord had an interest in that land, which would not include the right to occupy until the tenant's interest had been determined. However, it was an interest in land and that owner is outside the criminal sanctions of this Bill.
As Senator Nash says, it is perfectly true that the civil sanctions which the dispossessed tenant has against him still exist and the Bill does not destroy them. The point which Deputies Fitzpatrick and Cooney made for us in the Dáil, until they were blue in the face but to no effect, was that it is not right to differentiate so far as this criminal statute is concerned between people who are equally disentitled from breaking into a particular piece of property. A landlord who has let a flat on a weekly tenancy—the humblest in the city of Dublin—is no more entitled to break his way into it than I am. If you are having a criminal statute which is to apply to forcible entry, it should apply to him as well as to everybody else.
That is the reason why the section should be amended in such a way as to insert after the words “any person having an estate or interest in land” the following words: “where no inferior estate or interest exists entitling the person having such inferior estate or interest to the occupation, use or enjoyment of the land”. The object of that is to ensure that if we are to use the word “owner” for reasons of neatness—and I do not object to that —it should be used in such a way as to mean the person immediately damnified or prejudiced by an act of forcible entry. That is the person at the bottom  of the scale. Sometimes these scales run to five, six or seven steps, from the man who owns the fee simple right down to the weekly tenant. There may be four or five people in the middle.
It is wrong to put these people in the middle, who have no interest in the property except a contingent one and the right to draw rent, in a privileged position by comparison with a person who has no such interest. Neither they nor an outsider are entitled to commit a trespass on the tenant, or whoever is entitled to the occupation of the property. The Minister has been widely accused of not accepting amendments. He did accept several amendments in the Dáil and he produced a couple of his own which corresponded to points which were being made. However, I genuinely could not see why it was that he remained so inflexible on this simple point and which I believe would be politically uncontentious.
Mr. E. Ryan: This Bill was intended for certain purposes which the Minister outlined when he was introducing it. Certainly the kind of situation which Senator Kelly mentions is not the kind of situation which it was intended to deal with. It is true, of course, that the Bill may be used in ways for which it was not intended by the Minister. That cannot be helped. In view of the fact that the kind of situation which Senator Kelly mentions is not the kind of situation which it was intended to deal with under this Bill, it seems to me that it would be unnecessary and absurd to amend the Bill specifically so as to deal with a situation which it was not intended to deal with in the Bill. I think that those who have put down this amendment would agree that, in the ordinary course of events, the law did not need any amendment to deal with that specific kind of situation.
Mr. O'Higgins: Could I just say that I think Senator Nash put his finger on this whole thing quite accidentally? When Senator Kelly described the kind of situation which is being exempt and deliberately exempt apparently, from the operation of this Bill——
Mr. O'Higgins: ——Senator Nash spontaneously said: “But he would be guilty of forcible entry.” In fact, he will not be guilty of forcible entry under this Bill. He is exempt from the provisions of this Bill and that is the whole kernel of this. There is a very important matter of principle here. I do not charge the Minister with doing this deliberately initially, but it seems to me that it is deliberate in the sense that although the situation has been pointed out to the Minister, he is still carrying it on. If we allow this to remain unaltered, we are definitely being selective in our legislation. We are electing to exempt from the provisions of this Bill a particular class of person. It may be that, by and large, the particular class of person we are electing to exempt from the provisions of this Bill will be property owners, possibly large land-owners, but it need not necessarily be those. As Senator Kelly pointed out, a whole variety of people who may be of very much lesser importance in the property sense than people who would be regarded as large property owners, will find that by reason of a sloppy definition, in the definition section of this Bill, the Bill will not apply as it should apply.
What is the difference in principle between a person who has no right to occupation forcibly entering a house or a flat to which someone else is entitled to occupation because he has a superior estate or interest in the property and the situation where he has no interest in the property? There is no difference at all in principle here. Either a person is entitled to possession or he is not. If a person is entitled to possession, and if we legislate to make it a criminal offence for anyone forcibly to enter that person's house or flat or building or whatever it might be, it does not matter who enters forcibly, provided that the person who enters forcibly is not entitled to possession. The crime should be regarded by the law as being as great for one as it is for the other. It is perfectly true—and I conceded this to the Minister on Second Reading—that this Bill  does not set out to give a landlord or a person with a higher estate or interest in property any right to possession which he would not have had prior to this Bill becoming law, whenever it does become law. That is quite right. He does not get any additional right.
Placed alongside someone else who forcibly enters possession, is he not being put in an advantageous position, because that other person will be guilty of a criminal offence, whereas if a person who has any estate or interest, but is not entitled to possession, forcibly enters he will not be guilty of a criminal offence? All the weaknesses that we are told exist in the criminal law for dealing with such a situation, will continue to be felt by the person entitled to occupation who possibly has been forcibly put out of possession by his landlord or, taking the extreme case mentioned, by an owner, a fee farm grant owner or someone like that. Whatever inadequacies exist in the civil law will remain. No effort is being made in this Bill to tighten up those inadequacies. The unfortunate person who is subjected to forcible entry by his landlord, or someone else having a superior interest in the property, has to depend, without any assistance from this Bill, on the existing law, infirm, or weak, or whatever it may be. I understand that the whole approach of the Minister and his party to this Bill was that the existing civil law was not strong enough.
That is the only remedy the occupier will be left with if his landlord forcibly enters his premises. If anyone else enters it, it will be a crime. Why is that differentiation being made? Surely it is completely illogical. I do not want to labour this but Senator Robinson and Senator Kelly have made the position quite clear. There are many cases where a very tenuous interest in property may exist. I am sure Senator Eoin Ryan as a lawyer practising in this city is aware that in Dublin city you may have a veritable pyramid of interests above the man in actual occupation. I have had personal experience of dealing with a case with as many as five superior interests. All  of these people will be exempt under the provisions of this Bill. Whereas if I, the Minister, and Senator Nash, go into occupation, we will be clamped down on under the Bill; we will be criminals; we will be guilty of a criminal offence. The owner of a fee simple who might never be entitled to obtain possession, the owner of a fee farm grant whose possibility of possession will be postponed indefinitely, the lessor or lessee under a lease for 1,000 years which cannot come into occupation for 1,000 years, provided the conditions of the lease are adhered to, will be exempt if he forcibly enters, under the provisions of this Bill.
The present owner of an estate such as the Pembroke Estate can go in and squat without the slightest effect so far as this Bill is concerned. This Bill will have no application whatever to him. Not only can he go in and squat himself, but he can also authorise anyone he likes to go in and squat. He can authorise a dragoon of students, or workmen, or security men, secret police or anyone else, to go in and squat and, under this Bill, no one can touch him because he is exempt and the same is true for any person who has any superior estate or interest in land. All they have to do is either squat or authorise others to squat. No section of this Bill is going to apply to them. What is the logic in that? Supposing someone who has a superior interest or estate in land is a member of a subversive organisation, why is the Minister under this Bill exempting that person from an Act which he tells us is aimed at the activities of subversive organisations? All you want is a good recruiting sergeant in the subversive organisations to get the right type of property owner in and they can go on squatting from now until kingdom come. As far as this Bill is concerned it will not knock a feather out of them. They are entitled to do it without being regarded as criminals. I am not saying they are entitled to do it under the civil law, but remember the civil law has been written off as something that is useless, inadequate and of no effect in dealing with this problem.
The Minister hands it on a plate to anyone who has an interest in property.  The attitude is: “As far as you are concerned go in and squat all you like, I am not going to lay a hand on you. Anyone who wants to get after you will have to depend on the old inadequate, infirm, weak civil law.” What is the logic of that situation? Surely if the Minister wants to make this Bill effective against anyone who contravenes the provisions of it, the thing to do is to accept one or other of these amendments. If the Minister does not like the wording of either of these amendments let him bring in his own. We are not trying to gain a political point out of this. We are simply trying to straighten the anomalous position that exists under the Bill at the moment.
Mr. O'Malley: Senator Kelly made reference to the fact that, when this point came up in the Dáil, Deputy Fitzpatrick was blue in the face explaining his point of view as has been put here today by several Senators. It is equally true to say that I was blue in the face trying to put my point. Unfortunately, my side of it was undramatic. Because I am the Minister it has to be factual and accurate. It is non-dramatic, non-political, and technical and is not easy to understand at first sight but it is very necessary.
Mr. O'Malley: It is very easy to paint a lurid and dramatic picture in the opposite direction and that has been done very effectively if I may compliment those who did it. The fact of the matter is that nobody is being allowed to do anything that he could not do before. I pointed that out many times; Senator Nash has already pointed it out in this discussion. That is fundamental. Therefore, the question of empowering landlords and other owners to behave reprehensibly does not arise. Nobody can dispute that statement I have made now. Nobody is being allowed by this Bill to do anything that he was forbidden before. Therefore, landlords or anybody else are not being given the power to do anything extra. If you accept that——
Mr. O'Malley: ——and the House has accepted it, it puts a different complexion on things. But at the same time, in going on to discuss it one must not fall into the error that Senator O'Higgins and others have fallen into of putting a gloss on it that, because certain people will not commit crimes under the Bill when enacted, therefore they are being allowed to do it. In effect, while he accepts my contention that nobody is being allowed to do what is now forbidden him he goes on in effect to say that landlords and others, as he picks them out specifically, are being allowed. That is wrong. It is a fallacy. It is a fundamental weakness in the argument. It is difficult for many people to grasp this point. Nevertheless, that is the basic fact. No matter how often any number of people repeat this statement or allegation that landlords are being given extra powers or being given special protection and so on, no matter how often that statement is repeated does not make it any more true. It was false the first time it was made and it is still an incorrect statement.
The gloss that is put on it is that because people who have an interest in property will not commit a crime therefore the Bill gives them some extra power. This was put very strongly, as Senator Kelly has said, by Deputy Fitzpatrick in the Dáil and I spent a long time during and after the Committee Stage there trying to amend this particular definition. I did so not so much to meet the point which Deputy Fitzpatrick was making, because the point was really an invalid one, but so to amend it to prevent that allegation continuing to be made. Try as I might and try as people a lot more learned and experienced than I did, we simply could not come up with a solution to this difficulty, if difficulty you can call it, because it is really only a political difficulty rather than a legal one. The reason we could not come up with a solution was that, if you make people who have an estate or interest in land subject to the provisions of this Bill, you bring the criminal law into the private relationship between the landlord and tenant, mortgagor and mortgagee or indeed any other two groups of persons Their rights as  against one another, if they are in dispute, are a matter to be solved or settled by a civil court.
That is one of the fundamental principles underlying this Bill. I want to ensure that they will continue to be solved or settled by a civil court. If I were to accept these amendments here or the similar amendments proposed in the Dáil, it would mean that the private relationship of landlord and tenant, mortgagor and mortgagee, lessor and lessee or any other two similar relationships of the dozens that are possible, all of those would become subject to the criminal law. If a dispute were to arise in the future between any of these two private individuals in their contractual relationship or their relationship of tenure, to describe it more accurately, the Garda, the Attorney General and the State in general would be dragged into the solution of that problem.
It would be very pleasant for me to knock out these words. It would save me a lot of criticism which, in fairness to him, Senator Kelly, who I think sees the point, has agreed was unjustly directed at me on this point. But I would then be creating the situation that every time there was a private dispute about land or an interest in land or a mortgage or anything else of that kind, the two parties involved in that dispute would have recourse to the Garda or the criminal law. I simply cannot, as Minister, allow that sort of situation to be created. It would be politically easy to do it because I could then say this allegation that landlords are being given a power that they did not have before would have to stop. They should stop making that allegation now because in fairness to them the Opposition have accepted that landlords are not given that power. It still unfortunately does not stop people saying that this is a landlords' Bill. All that is being done by my insisting that these words be retained is that where you have this private civil relationship that it will continue to be governed by the civil law and by the civil law only and that  the Garda are not going to be dragged into every dispute between landlord and tenant, mortgagor or mortgagee. When Senators say that landlords are exempt from committing a crime in certain circumstances under this Bill if they are honest about it they must equally say in the same breath that tenants are exempt too, mortgagors are exempt.
I have been referring a lot to mortgagors and the fact that I do not want to bring the criminal law down on top of them. I have not had much success possibly because most people do not know what mortgagors are. Mortgagors are people who owe money on their houses and that constitutes a pretty substantial section of the community. Everybody with a loan from a building society or a local authority or an insurance company or anyone else is a mortgagor. If a mortgagor were to forcibly enter his own premises out of which he might have been ejected by a building society he would commit a crime if the amendment I am now asked to accept were accepted. I would bring the criminal law in as the dominant theme in the relationship between the mortgagor or a person borrowing money on a house and the people from whom he borrowed it. I cannot in all honesty do that. If any member of the Opposition were, God forbid, ever in my position as Minister for Justice and they were asked: “Will you make the criminal law the dominant theme in landlord and tenant and similar relationships?” unless they are crazy they would have to resist it and they would have to resist it even if they were being misrepresented.
Those who say the landlord is being exempted should in all honesty say in the very same breath that the tenant is being exempted. I want to give the House an example of that. One example is where the tenant of a Dublin Corporation dwelling has been forcibly ejected or has found that his dwelling, flat or house, has been forcibly occupied by some group of people. He would not, and will not, when the Bill is passed—assuming it is passed in its present form—commit an offence by going in and endeavouring  to eject those people who are in there because he is a person with an estate or interest.
Mr. O'Malley: Or indeed where it has terminated. If he is an overholding tenant, he is still an owner for the purpose of this Bill. That brings me to the point that arises in amendment No. 7. Are we discussing that with Nos. 5 and 6?
Mr. O'Malley: I reserve what I wanted to say on that particular point. But Senators should remember that my refusal to delete these words and my refusal, therefore, to make the criminal law the dominant theme in contractual relationships in respect to property ensures the right of a tenant just as much as it ensures the right of a landlord. It gives nobody any right that they did not already have. That is spelled out in black and white. It is not just a question of my saying that is the law. Apart from the fact that it is the law it is spelled out in black and white as well to put it beyond doubt. Therefore it is incorrect, untrue, and it is a very definite misrepresentation of the position to say that this gives a landlord a right and that he can go in and kick out a tenant. He cannot do it. His exemption is exactly the same exemption as has the tenant, the mortgagor, the lessee, the fee-farm grantees or anybody else you like to name. It is exactly the same exemption. It is no greater or no less. The reason all of these people, everyone who has an interest in the land, must get the exemption is because, if we did  not, every time they got into a dispute they would find themselves dominated not by the well-developed law of landlord and tenant but by the criminal law and I do not want that situation. Even though it would be politically easier for me to accept the amendment and put a stop to this sort of thing, I still have to take cognisance of the facts and of what the consequences of this amendment would be. I would like Senator Kelly to tell me that I am wrong and that the criminal law would not be invoked in a dispute as between landlord and tenant.
One can take another example which is equally as valid as those given by Senator Kelly, Senator O'Higgins and others. Take a situation where a landlord serves a notice to quit which expires and through some lawful means gets possession on the demanding of possession—normally it is refused. Assuming that there was nobody at home when the landlord or his agent went to demand possession he got into possession. Then the tenant discovers this an hour or two later and is very perturbed about it. The normal thing for a tenant to do would be to go back into his house. That is what most tenants would do in the particular circumstances. But if I were to accept these two amendments in the names of Senator Robinson and Senator Kelly the position would be that that tenant would thereby commit an offence under the Bill. I cannot have that whichever way it goes and I am being perfectly fair to both.
Professor Kelly: The Minister is, first of all, using words which suggest that we on this side have said that landlords are being given a right. I went out of my way on several occasions to admit that was not the case. They are not being given any right which they did not previously have and Senator Nash, who made this point first, is absolutely correct. I see the Minister's difficulty but it is a difficulty which he himself has created, not us. I see what he is trying to achieve but he is going the wrong way about it. There are two ways of looking at this and the Minister has given me an opportunity to mention both of them because  he has brought in the question of the tenant as well which is relevant to the amendment which the Minister was going to deal with but which he was prevented by the Chair from dealing with.
I sympathise with the Minister's anxiety that the Garda and the criminal law should not be brought into disputes between landlord and tenant. That is a healthy political or quasi-political rule of thumb, but it may be that one is making laws of such a sweeping kind that one cannot, without injustice, retain this rule of thumb. I am not urging that the Garda be brought into this relationship of landlord and tenant at all—I would be sorry if they were. It is a healthy thing that they are not, just as it is a healthy rule of thumb that family squabbles should be settled without the interference of the Garda or the criminal law so far as that can be done.
I accept all that, but if a Minister or a Government proposes to make a law of a sweeping kind it may be that a rule of thumb like that will have to go by the board in order to avoid a greater injustice still. That is the point that the gentlemen in the other House were trying to make. The Minister certainly did his best to try to contradict them in the vigorous way which he has here today. He is caught in an inextricable trap from which nothing will free him except the votes of 30 Senators on his own side. Without taking the discussion too far afield, could I refer to the constitutional aspect of what the Minister now proposes to do?
I am going to take a far-fetched example—it might not be all that farfetched—so as to make it clear. No doubt simpler examples would make it nearly as clear, but a far-fetched one would make it crystal clear. Suppose I am the Earl of Pembroke, and suppose I dislike the idea that houses on my estate are going to be pulled down in order to make room for some development which displeases me aesthetically. Under this Bill I will certainly not be exempted from my civil liability to whoever I am trespassing  on, but I am criminally free from liability if I forcibly enter the premises in order to prevent this going on and —this is the point—if I am joined in that enterprise by the Dublin Civic Group or by members of An Taisce, not with my authority or consent, but simply as a simultaneous gesture of solidarity. If this Bill becomes law the Garda arrive, and what happens? The people who have done exactly the same thing as I have done, and with just as little right to do it, are prosecuted and convicted and fined or sent to prison, but I cannot be touched.
I see the Minister's point very well about keeping the Garda out of relationships between landlord and tenant, but the result of doing that, if he insists on having this legislation, is to create a very serious discrimination. I am not one for squealing exaggeratedly about Fascist jackboots or anything like that, and I think that the Minister and the Government have had to put up with expressions of this kind in regard to this Bill which they do not deserve. I think that the people who are directing these expressions at them would be better advised to concentrate on other parts of the Government's performance and to use less exaggerated expressions about them. The plain fact is that discrimination is taking place. Two men, the Earl of Pembroke on the one hand, let us say, and a member of An Taisce on the other, have done exactly the same thing with exactly the same lack of right so far as the occupier of these premises is concerned. One of them goes to prison, perhaps, the other one escapes scot-free.
If I were in the Minister's position I would say: “The social function clause lets me out. A landlord vis-á-vis a tenant whose possession he has no right  to break occupies a social function recognisably different from that of a member of An Taisce or the Dublin Civic Group.” That might be arguable, but it might be very wrong. It might be that an argument put up in that way against the background of penal legislation which had the effect of sending people to prison would fail before the kind of judges in the High Court and the Supreme Court that we now have and that I, for one, am glad we have got. It might be that the judges could not see the distinction in social function which would justify applying to one man a prison sentence and to another man complete freedom where both have co-operated in doing an act equally without right on both parts.
While I entirely accept and sympathise with the Minister's anxiety to keep the criminal law away from private relationships, this Bill is not going to do it. If it does so, it will be only at the cost of a more serious injustice still and of something which, in my view, is possibly unconstitutional. I do not believe in wagging the Constitution unnecessarily. I may be wrong about that; one man's view about it is as good as any other until it gets as far as the Supreme Court. If I were a member of An Taisce or the Dublin Civic Group, or if I were an unorganised student who went into possession along with, let us say, an aesthetic nobleman, in order to prevent one of his houses from being pulled down, it is the first point that I would make if I were being prosecuted. I believe firmly that that point would carry me a very long way. In case I am accused hereafter, or anyone on this side of the House is accused, of being a learned lawyer who did not spot this weakness in the Bill, I want to put it on record that in my view this aspect of the Bill as proposed has a potential constitutional weakness.
I do not question the Minister's good faith in trying to keep the criminal law out of the landlord/tenant relationship. He is involved in a second difficulty here. That difficulty is one which it might be more appropriate to discuss on amendments Nos. 7 and 10, because if that is his intention he is not going to succeed in doing  it in a large range of cases where no subversive activity of any kind is involved. Part of the definition of “owner” says “including a person who remains in occupation of land after the determination of his tenancy therein”. In other words, the Minister proposes to exempt and I see the point of this very well. He proposes not to apply—and this is what he was saying very vigorously a moment ago—the sanctions of the criminal law, so far as this Bill creates them, to an over-holding tenant. That is fine but what about a permissive occupant whose permission is withdrawn and who still remains behind in his cottage or whatever and barricades himself in? He is not a tenant whose tenancy has been determined.
What about a licensee whose licence is withdrawn in some other letting and simply stays on? He is not a tenant whose tenancy has been determined. What about a far-out relation, or a guest of a statutory tenant under the Rent Restrictions Act, who finds himself in the position where the statutory tenant dies; a court does not recognise him as being a member of the tenant's family so as to entitle him to a continuation of the statutory tenancy, and he boards himself in and refuses forcibly to give up possession?
I will not cite all these instances as landlord and tenant relationship because these people are not tenants but for the broad purposes of the political objective of the Minister they are not far from a tenant's position, not unanalogous to a tenant's position. These people are not within the protection of the Bill. These people are not in the position of over-holding tenants. These people may have nothing to do with a subversive organisation: maybe it is a cranky old woman who boards herself in and refuses to give up possession after she has held a permissive occupancy which has been determined; perhaps, it is a licensee whose licence has been withdrawn; perhaps, a long-standing guest or far-out relation not falling within the definition of family for the purpose of the Rent Restrictions Act. What about someone like that?
People like that have no connection  with subversive organisations. I shall make this point at greater length when we are dealing with these amendments. These people are not protected from the operation of the Act and, whether the Minister likes it or not, these people are going to feel the weight of this penal sanction if they forcibly retain possession. I shall came back to this point later. I hope I have said enough to demonstrate that the Minister is not only in a logical and practical dilemma but is possibly in a constitutional one as well.
Mr. Alexis FitzGerald: I should like to support very strongly the amendments which have been proposed. Without wishing to be rude, I think the Minister is being misled by his own sense of vigour, which is very evident and which, coupled with a sense of frustration with regard to the problem he has to solve, may mean that he is not directing his mind as freely as he would like in other circumstances to a very real problem.
I think that the proposers of these amendments have put the finger on a fundamental weakness in this legislation through which a coach-and-four can be driven. Let me take the Minister's case as made on Second Reading, which I think everybody in the House accepts—though whether the instrument he has chosen to deal with it is the best one or not is debatable—that this measure is directed at subversive organisations.
Assuming for a moment that a particular subversive organisation decides to get itself well advised as to how to drive a coach-and-four through this Bill and how to put itself into a position that it cannot be prosecuted for a crime, what will it do? It will, of course, simply acquire at enormous cost an estate or interest in the land in question which it is desired to occupy. If I find myself as the lessee of a rather long lease of my property and if I find the lessor has changed and it is now a limited company controlled by persons with subversive intent, they can occupy my house and be exempt from any criminal activity under section 2, though my rights in relation to them civilly are preserved by the provisions  of subsection (5). The very mischief that the Minister designed this measure to cure will not be cured if these people or any one of these groups choose to take this sort of step.
This is a much more real danger than the illustrations which have been given to which the Minister could give the kind of answer unfortunately that he did not give, namely, that these things have not happened under the existing law because the civil remedies have prevented people from doing these things. However, a criminal code has been brought into existence. I think the Minister should listen to this seriously and remain uninfluenced by the merry wit of the leader of the House. There are people in this country at present who are very seriously concerned to do the things that the Minister and the Oireachtas wish to prevent them from doing. They need only a little bit of advice. As everybody knows, ground rents are a drug on the market. It is the simplest thing in the world to acquire a ground rent.
Mr. Alexis FitzGerald: Will the Minister please wait? He can speak many times on this amendment and I am sure the Cathaoirleach will encourage him to do so. I will be able to hear him if he allows me to complete what I want to say on this.
Mr. Alexis FitzGerald: It is no good saying that this is unreal. I think this is very real. If a person with a good understanding of this Bill—and there will be people with a good understanding of it—study it carefully enough they will be able to see how they can put themselves in the position where they will not be committing crimes. That is the real point which is being made in support of these amendments by Senator Robinson, Senator Kelly and Senator O'Higgins.
I must confess I was disappointed with the Minister in dealing with the proposals here as if they were Opposition proposals. They are not that at  all. Any amendments put down in the name of any member of this party— and I am sure this is true of Senator Robinson also—are designed to try to improve a measure which has been brought before this House. I think I speak for other members of my party when I say that we do not see where political advantage lies in relation to this. We are not concerned with political advantage in regard to it. We are concerned to see that whatever comes out of this House is better than what came into it. I should like to think that the Minister is not doing what Senator Jack Fitzgerald suggested at the beginning—that he is not playing the game by sitting here listening to us with a closed mind on the basis that he will never go back to the Dáil again with this Bill because of the treatment he received there. That is not fair to this House. It is not a fair Parliamentary procedure and it is not fair to the Members of this House who are concerned in the work they have done to improve this measure.
Mr. Alexis FitzGerald: Would the Minister deal with my point as to what happens to people who put themselves in this position? He wants to get certain people. They can put themselves very simply beyond the reach of his instruments.
Mr. O'Malley: I pointed out to the Senator what would be the consequences of accepting the amendments. I think they would be disastrous and I think everyone accepts that but that has not been dealt with.
Professor Kelly: The disaster is something ancillary to the Bill. If the Minister wants the Bill he will have to take the disaster with it and face the music. That is the long and the short of it and there does not appear to be any other way out of it. If the Minister proposes to have this Bill and this party does not dissent—and we have said that repeatedly—from the main object of the Bill, he is going to have to pay a price for it. Part of that price  may be the sacrifice of the rule of thumb which he explained here a few moments ago, namely, keeping the police out of private landlord and tenant relationships. Otherwise he will find himself in a situation of asking us to pass clearly discriminatory legislation. I know he does not intend that but that is the result he is going to get.
Mrs. Robinson: I differ slightly from my colleagues in relation to the statement the Minister made in his intervention that nobody would be allowed under this Bill to do what they could not do before. I do so, although I am aware of the provisions of subsection (5) of this section which states that:
Certainly no rights will be created which did not exist before the enactment of this Bill. I take it that the law as it exists in Ireland at the moment is the law under the Forcible Entry Acts. The Forcible Entry Act, 1381—here we have a very ironic situation—was brought in to prevent landlords forcibly occupying their land. It was brought in to prevent them using private armies or their own force against tenants. It was brought in to protect tenants whatever the civil rights between them, whether the landlord had a right to the property or not. It was a measure to prevent aggressive self-help.
If the Minister has read these statutes or if he has any sense of history, he will know that, ironically, he has now changed the whole pattern in the Prohibition of Forcible Entry Bill from protection of the tenant against the force of the landlord to protection of the landlord by exempting him from the possibility of prosecution under the Forcible Entry Bill. If I may quote what I think is the existing law. I think the Forcible Entry Acts are in operation in Ireland today. I think that this Prohibition of Forcible Entry and Occupation Bill will displace  them and, in displacing them, it will take away the protection under the existing law whereby it is an offence for a landlord to forcibly take possession of his property. It is an offence for a person with a tenancy in land forcibly to take possession of the property.
None from henceforth make any entry into any lands and tenements but in case where entry is given by the law and in such case not with strong hand nor with multitude of people but only in peaceful and easy manner. If any man from henceforth do to the contrary and therefore do duly convict he shall be punished by imprisonment.
The judges have interpreted this in such a way that even if a landlord has the right to possession of the property, even if the landlord has the interest in the property, he does not have the right to forcibly go in, either with a private army or with friends or his family or even alone. Under the definition of “owner” in this Bill an owner is exempt under section 2 from committing the offence of forcible occupation. It seems to me that we are changing the position. The owner with an estate or interest in land would no longer be criminally liable as he is under the Forcible Entry Act at present for forcibly entering land even if he has a civil right to do so.
I would agree with the Minister that the relationship between landlord and tenant, mortgagor and mortgagee, should be regulated by the civil law. It is a matter for the civil law. We do not want the criminal law substantially invading this area. It so happens at present it is a criminal offence for a landlord forcibly to enter on the property of a tenant and yet we do not have the courts clogged up with actions on this matter. In other words it is an unreal fear.
Mrs. Robinson: I am tired quoting recent prosecutions in England and there were prosecutions much more recently in Ireland, not in this century. It is possible to prosecute under such statutes and I would be prepared to submit that they are the law at the moment. The Minister is not creating an entirely new pattern.
Mrs. Robinson: If the Minister is not repealing them then why admit that a landlord is liable under the Forcible Entry Act and not make him liable under this Act? I do not understand. If the Minister admits that position and if he admits that under the Forcible Entry Act the landlord is liable——
Mrs. Robinson: If it is possible to prosecute him under the 1381 Act why is he now being omitted from the provisions of the Prohibition of Forcible Entry and Occupation Bill, 1970? I do not understand—and here I agree with Senator Kelly—why this constitutionally unequal treatment is brought into this Bill because it is not going to bring about the disastrous consequences that the Minister foresees. The Minister envisages that it will mean that the landlord and tenant and other property relationships will be totally regulated by the criminal law and the courts will be clogged up because of this. In England they have prosecuted in the last year under the Forcible Entry Act. It is deemed to apply to landlords as well as to others. People who take the self-help forcible entry remedy in their hands are covered by the Act and it has not brought about a clogging of the courts there. It would not bring about a clogging of the courts here if the definition of “owner” did not extend to any person having an estate or interest in land, in other words the various cases that have been mentioned here. I do not understand the reason the Minister cannot see that this amendment is both necessary and desirable to the constitutional  equality of treatment under the Bill. Why should certain classes of people vaguely defined as having an estate or interest in the property—which can be a very wide net indeed—be exempt from the provisions of the Bill?
Mr. O'Higgins: Before, the tea break I should like to put this point to the Minister. I appreciate what the Minister says about mortgagors and tenants and so on, but surely the Minister can see that there is that very big distribution between a tenant who has overheld possession or a mortgagor, between that category of persons who either have or immediately had a direct interest in the sense of possession of the land—there is a very big difference between that category of person and someone up the ladder towards the fee simple interest; the owner of a fee-farm grant, the owner of a lessor's interest under a long lease who, for practical purposes, have no interest as regards possession of the land at all and are never going to have it, for example in the case of a long lease, unless there is a constravention of the terms of the lease possibly for a thousand or ten thousand years. The interest there is entirely remote. Possibly this was the reason that these were the kind of cases that were emphasised to the Minister previously. There the question of possession is absolutely too remote to be compared with the position of the mortgagor who has an immediate interest, who is a person in actual possession of the house, or a tenant who has overheld, even a tenant against whom a decree was given, because there might still in certain circumstances be a right of redemption vested in him. In the one case there is an immediate interest in the occupancy of the land. In the other case of remote superior interest, there is no question, good, bad, or indifferent, of possession ever accruing within the foreseeable future.
Mr. O'Malley: ——or if you bring one in you have got to bring them all in. In effect what I am being asked to do is make mortgagors, fee farm grantors and lessors subject to the law but let mortgagees, fee farm grantees and lesses be exempt. If there was ever a constitutional difficulty that would be it. You cannot have one without the other. You either have the whole lot in or you have them all out. The consequences of bringing them all in are what I have outlined.
Professor Kelly: I was speaking very shortly before the interval and, perhaps, the Minister would like an opportunity to reply to the points made. Before saying any more, I should certainly like to hear his response to the arguments put forward from this side.
Mr. O'Malley: I think that I replied to what was said here and I really have not anything very substantial to add because I do not think anything very substantial to the arguments from the other side has been added since I spoke. The basic problem that I am faced with is that if I accept the amendments I have a sort of free-for-all as far as the adjudication of civil private disputes are concerned. It must happen inevitably. People will try to bring the Garda, the Attorney General or the State in to have their disputes adjudicated in that way.
I want to prevent that. I do not think that I am doing any injustice to anybody in seeking to prevent it. If we do not do that and if the House does not reject these amendments, there will be a situation where every private dispute as between a landlord and tenant, or a mortgagor and a mortgagee, and so on, could be, and presumably would be, decided in the criminal courts, which is something I do not want. I do not think that that problem has been dealt with on the opposite benches. It is something that we have discussed at great length.
 We both see one another's point of view and what the difficulty is. Unfortunately it is one of the problems about which one cannot do anything on the lines suggested by the Opposition. If I am to accept their amendments. I am in the position that every private dispute immediately becomes something for adjudication in the context of the criminal courts. I cannot have that. It would make a farce of our land law and of our landlord and tenant law. The other side of the coin is that this is not something that is of assistance, as has been alleged, in some way to landlords. Tenants, mortgagors, lessees and similar people are in the same position: they are equally exempted— I think that that is the correct phraseology. They do not commit an offence, either, in the context of this situation. That is what I have said already and is as valid as far as the arguments which followed it are concerned as it was for those which preceded it.
Professor Kelly: The situation is entirely different from that which the Minister represents. To say that the tenants will be in the same situation as the landlords is not an answer to the points which we have been making here. For example, take a situation involving three parties, a landlord, a tenant, and somebody who dispossesses the tenant. It would be perfectly natural and understandable if the tenant—in other words, the person who was immediately entitled to possession—were exempted from criminal sanctions. His first reaction to finding himself being dispossessed by a squatter is to say: “To hell with you; this is my house and you can damn well get out.” I believe that that is what the Minister would say if somebody took over his house and it is what I should say if somebody took over mine.
A landlord, or somebody with a superior interest—it does not need to be an immediate landlord; it could be a landlord higher up the scale, such as the Earl of Pembroke—is not in that situation. It is not an answer for the Minister to say that landlords and tenants are in the same situation. They should not be in the same situation.
 The tenant, the person with the inferior or the lowest interest, the man at the bottom of the pyramid with the right to immediate use and enjoyment, to immediate occupation, is in a palpably different situation from a landlord higher up the scale.
This is what I have been trying to say all along. It would be perfectly all right to define the owner as being him. That is the whole point of this amendment. I have no objection to the owner being described in this context as the man who is immediately inconvenienced and immediately outraged by this forcible occupation of his property. That is legitimate. What is not legitimate is to equate this man with somebody whose interest in the same piece of property is a much more remote one, higher up the scale. Neither is it legitimate to exempt that much more remote man from liability for repossessing himself, or for possessing himself forcibly, in exactly the same way as the tenant.
I see the Minister's point but he is not doing himself justice, because he is overstating his case by saying that, if he were to accept this amendment, every landlord and tenant question would be settled by the lámh láidir. That is not so and the Minister knows this perfectly well. The vast majority of landlords and tenants would still litigate in the ordinary way. It is only in a minority of landlord and tenant cases in which there is any element of violence involved, but these cases do exist. I gave an example, which was reported in the Press, of a house in, I think, Upper Leeson Street, in which the landlord was alleged by the newspaper reporter to have come through a window while the tenant was away, and bolted the tenant out. That kind of case is certainly exceptional and the Minister is overstating what is a reasonable case. This case is utterly illogical and does not hold water. I sympathise with what is in his mind but he is overstating his case by pretending that all landlord and tenant disputes would end in this way. That is certainly not the case.
Professor Kelly: That is perfectly right. I do not wish to give a lecture on law to the House but let me get back to what I was saying about the constitutional aspect of this. The Supreme Court has repeatedly said that if a particular course of conduct is intra vires a statute, but is repugnant to the Constitution, then the statute must fall to the ground; at any rate that part of the statute which is in question.
Professor Kelly: In this case very likely the entire statute because we are dealing with a central part of the definition on which the rest of the statute hinges. In this case, except possibly for the title of the statute and you can have a present of that——
Professor Kelly: It is possible that this whole statute, or certainly the guts of it, would fall to the ground if a situation such as I described arose. The fee farm grantor is a remote possibility but the immediate landlord is not a remote possibility nor is the trouble-making lessor that Senator FitzGerald described who, for a small consideration, is able to acquire some interest in a substantial piece of property. He is not within the purview of this Bill and the Minister is not facing up to the difficulty which his own policy has created. I do not dissent from his policy. I have said that seven or eight times during this debate. I know we must put down subversive organisations that trample on people's rights in order to make their political points of view. We must do that and if a Fine Gael Minister was sitting where the Minister is, he would be saying the same thing, except that he would have said it sooner and he would have applied the existing law a lot harder and much earlier.
I accept all that but what the present Minister is not accepting is the logic into which his legislation, as drafted, is forcing him. It is forcing  him into a situation whereby two people equally with no rights to the immediate occupation and possession of a premises are treated differently by the criminal law. None of us knows how these things will go in litigation but I want to warn this House seriously that in my view that kind of law is discriminatory and is potentially repugnant to Article 40, section 1 of the Constitution. I understand well the difficulty the Minister sees in accepting my amendment. I understand this but I am not frightened by it. It will make a price which will have to be paid for making this into a workable statute. Although the Minister is exaggerating the situation, I do not think that any more than a minute fraction of landlord and tenant cases would involve the police even if this amendment were accepted. The number of people who would be encouraged to settle in that way their differences with their tenants or with their landlords because of my amendment would be minimal. I cannot imagine anyone taking advantage of it for that purpose if there were any other way of doing it.
Be that as it may the Minister is refusing to pay the price which logic requires him to pay for importing into the law this principle which he is putting before us. I do not wish to hold up the House too long. I have made this point as forcibly as I can. There is no political mileage in this either way, as Senator FitzGerald has said. I could not see myself addressing a church gate meeting on the definition section of the Forcible Entry Bill and I do not think I would get my point of view across through a loudspeaker on a windy day. We are not trying to make political mileage out of this. We are trying to prevent the passing of a bad Bill into law and that will happen if the 30 Senators supporting the Minister are dragooned out in order to kill this amendment. I am sorry to have to put this so strongly. I thoroughly believe that this is a bad piece of law. It invalidates and takes all the good out of anything else that may be good in that definition section.
Mr. Alexis FitzGerald: I do not  want to try the Minister's patience but, unlike my colleague, Senator Kelly, I understand the point of view I have expressed in criticism of the Bill and I completely agree with the proposed amendment to the Bill. I frankly do not understand how the Minister is not able to follow out by example to illustrate his difficulty. I perhaps could then grasp what it is. At the moment I do not. The position is, as I see it, that a landlord under the law, as stated by Senator Robinson, would be committing a crime if that landlord broke into premises of his tenant and this is clear and is not in dispute. When this Bill is enacted in its present form, he will not be committing a crime.
This amendment would have the effect of only excluding from liability the occupier, the person entitled to immediate possession, use and occupation and persons permitted by the occupier from liability and persons with a bona fide claim of right to that occupation. I cannot see how that will bring the police into all matters of civil dispute between the landlord and tenant or other interested parties in a particular piece of property. The Minister said this. I accept there must be a real problem here if it is affecting his judgment in rejecting an amendment which would seem to exclude a lot of trouble for him and to exclude what is at least a possibility that this measure may be held by some court to be unconstitutional. I do not see how, if we make it a crime for anybody other than the person entitled to the use and occupation of premises to forcibly break into the premises, that this brings the police into civil disputes.
Mrs. Robinson: I find myself in entire agreement with Senator FitzGerald. I have exactly the same problem as he has and this is a matter which we must discuss at some length. It must be thrashed out because there is an apparent attempt to change the law here in order to exempt persons with an estate or interest in land from the operation of the Forcible Entry Bill. This is not the law in England at present and I am going to argue now that it is not the law here. If we are going to change the law and exempt these people from the provisions of the Forcible Entry Bill, we ought to be aware of what we are doing and we ought to be aware that when this is called the Landlords Bill that there is a good deal of truth in it, that it is exempting landlords from its operation in a way which does not prevail in England and has not prevailed up to now here. In order to substantiate this argument I should like to quote briefly from Bullingbrooke's Justices of the Peace, 1766, to show the continuity of the Forcible Entry Acts, to show that the statutes were brought in in order to modify the common law position. It is stated under “Forcible entry and detainer”:
It seems that at the common law, a man dispossessed of any lands or tenements, if he could not prevail by fair means, might lawfully regain the possession thereof by force, unless he were put to a necessity of bringing his action, by having neglected to re-enter in due time; and it seems certain, that even at this day, he who is wrongfully dispossessed of his goods, may justify the retaking of them by force from the wrongdoer, if he refuses to redeliver them; for the violence which happens thro' the resistance of the wrongful possessor, being originally owing to his own fault, gives him no just cause of complaint, inasmuch as he might have prevented it by doing as he ought.
But this indulgence of the common law, in suffering persons to regain the lands they were unlawfully deprived of, having been found by experience to be very prejudicial to the public peace, by giving an  opportunity to powerful men under the pretence of feigned titles, forcibly to eject their weaker neighbours, and also by force to retain their wrongful possessions, it was thought necessary by many severe laws to restrain all persons from the use of such violent methods of doing themselves justice.
I quote from Bullingbrooke's Justices of the Peace page 278 to show the continuity of this idea. I now go to the other end of the scale and look at a case in the Court of Appeal a couple of months ago in England the case of Regina v. Mountford, May, 1971 Part 2, page 83 of the All England Law Reports. In this case Lord Justice Phillimore gave a summary of the Forcible Entry Acts and went right back to the 1100s. I will quote briefly from what he said when he gave an account of the statutes from 1100 to 1388.
A few years later in 1388 the Justices were required to sit four times a year for the purposes of enforcing a statute known as the Justices of the Peace Act, 1361 and thus quarter sessions began. It is apparent from the legislation which followed that this was an age of violence and in particular the ordinary citizen was apt to find himself evicted by force by someone else who coveted his house or land. The likelihood is that the perpetrators of these injustices were in general the barons with their private armies.
The purpose of the statute, in other  words, was to keep the peace, to prevent people from forcibly regaining possession of their property even if they had a right to this property. It is clear that two months ago in England the Forcible Entry Act was being enforced in these terms. It is clear that it has been carried on in our law. I would like clarification from the Minister as to whether in his view the Forcible Entry Acts exist under Irish law and that this is the position. If so, why is he then changing it under this provision of the Bill?
Finally, I should like to turn to the question of the overlap with the civil relationship which seems to worry the Minister a great deal. This came up in a case in England in 1920, the case Hemmings v. The Stoke Poges Golf Club Ltd., 1920 King's Bench. In that case Lord Justice Banks heard an appeal from the appellants where a tenant had remained in occupation of a cottage. He was the plaintiff in the lower court and he had been put out of the cottage by the golf club because his employment had ceased and they said that he was no longer entitled to stay on in the cottage. They sent an agent and his men along and evicted Hemmings and his wife. Hemmings brought a successful action for damages arising out of being forcibly put out of his building. On appeal, the court of appeal made it clear that it was a criminal offence to forcibly take repossession of property even though the golf club in this case were entitled to the property. I should like to quote briefly from the judgment:
A person who makes a forcible entry upon lands and tenements renders himself liable to punishment and he exposes himself also to the civil liability to pay damages in the event of more force being used than was necessary to remove the occupant of the premises or in the event of any want of proper care in the removal of his goods.
The effect of the decision was that the court of appeal held that there had not been unreasonable force in these circumstances. There was no civil action, but there would have been a criminal prosecution under the  Forcible Entry Act if such a course had been taken. In other words, it would be very rare, and here I agree with Senator Kelly, to have in the relationship of a landlord and tenant the circumstances giving rise to the necessity of a prosecution under the Forcible Entry Act. It exists at the moment in the law if we care to enforce it. It exists in England and there has been no breakdown of the system. There has been no clogging of the courts.
I, again, come back to the importance of the principle which we are debating here. Are we going to change the law in relation to the possession of property from the position as it stands now and from a similar position under the criminal law in England to exempt owners, meaning any person with an estate or interest in the land and, therefore, meaning any remote lessors or free farm grantors or any person who may have some vague interest in the land but may have no right to the possession of it, from being found guilty of the offence of forcible entry? It is for that reason I most strongly differ from the Minister when he says he is not changing the law prior to this Bill. I think he is changing it. He is not conferring any new right to do anything but he is conferring a very bad exemption to the stronger members of the community from the effects of the Bill and I do not think this should be welcomed.
Professor Kelly: Before the Minister replies, I should like to say I understood the Government's case to be, the last time we were here, that the old legislation on forcible entry was so uncertain as to be useless. I was inclined to take their word for that. If Senator Robinson's point is a valid one, we ought to have a firm statement from the Minister as to whether or not he regards that old legislation as being in force here or not. Either it is in force or it is not. If it is in force, then this Bill is in conflict with it and although the principle that a later statute repeals an earlier one might apply, it would be more sensible and honest if the Minister added a schedule of repeals if he intends to go ahead  with this, which I strongly advise him not to do. It would be more sensible, honest and clear if he were to add a schedule of repeals to the Bill repealing the legislation which Senator Robinson has spoken about which, if she is correct, provides a possibility of criminal prosecution even against landlords who forcibly repossess themselves of tenants' property. Are these statutes in force? If they are in force, and if the Minister intends to repeal them, which he must do in logic, if it is to be consistent with the point which he appears to be sticking to in this Bill, let him have a schedule of repeals.
Mr. O'Malley: Let me deal with that point briefly. This has become an arid and over-academic discussion. I have access to the advice given to the then Government in 1955 by the then Attorney General, Mr. Patrick McGilligan. I loathe to make much use of it because I do not think it is quite right. In any event, a direction went out at that time from the Attorney General's office to the Garda that these statutes of forcible entry were obsolete. A direction was given to the Parliamentary draftsmen to prepare a Bill on these topics. That Bill was drafted. It was not introduced by the then Government, apparently, from what I can gather, on the grounds that it was more or less a re-enactment of all this 14th century legislation. It was not something they were very keen on. It was not proceeded with after the change of Government in 1957 but the advice which went out from the Attorney General's office in 1955 was that experience had shown that when charges were laid under statutes of Richard II, the first two of these at least were passed in the reign of Richard II, the courts treated the antiquities of the enactments as having deprived them of any force in modern times. The fact is that these old statutes were designed to deal with conditions as they existed in feudal times and they are not suited to modern circumstances. I do not see anything wrong with that and I particularly call to mind the fact that I have been criticised a number of times in the Dáil and, I think, outside the Dáil too—at  least, if not I personally, then the Attorney General and the State in its capacity as a prosecutor has been criticised both inside and outside the Dáil quite frequently and up to very recently—for prosecuting people under Acts that were passed in the 1860s and the 1870s. In particular, I heard a Labour Deputy criticise the Attorney General very strongly in recent months for having prosecuted somebody under an Act that was passed in the 1870s which was pooh-poohed and laughed at and sneered at as this Victorian legislation that the Government or the Attorney General is falling back on.
Mr. O'Malley: No. The point I am trying to make is I am giving the view as it was held in 1955 and was given to the Garda at the time and the steps that were taken at that time. I think that what was valid in 1955—it is now 16 years later—would be at least as valid today. Criticism has been voiced quite strongly of prosecutions having been taken under Acts that were just about 100 years old. I do not accept that that particular criticism is valid but, if it is valid, and if those criticisms are made in regard to Acts 100 years old, surely it is at least six times as valid in relation to Acts that are 600 years old. I made the point in my reply on Second Stage here last week that the very people who would seek to assure us now that these famous Acts of 1381 and 1391, which are allegedly in force and which could be enforced by us, if we saw fit to do it, are the very people who would get up and criticise the Attorney General if he did prosecute under Acts of that age——
Mr. O'Malley: It is rather farcical. There are many human beings sitting in this Chamber and there are three, or four, or five lawyers carrying on with this sort of thing and to my mind, even though I am a lawyer, I cannot help agreeing with the late Taoiseach, Seán F. Lemass, in many of the remarks that were attributed to him at least with regard to lawyers, particularly during the war period when they were finding ways out of his efforts to prevent the black market and all the rest of it. As a profession we let ourselves down if we waste the time of one of the Houses of the Oireachtas with this sort of thing, whether an Act of 1381 is still in force or whether it is not. Who gives a damn whether it is in force or whether it is not. Secondly, as I pointed out here last week, it is not even possible to get a copy of the wretched Act which was written in 1381 in Norman French which no one now can speak. In Russell on Crime, the 12th edition, which is one of the major books on crime, he tries to quote from some of these Acts; he does not purport to quote from the Act at all. He quotes from what he describes as Chapter VIII of Roughhead's edition. Who Roughhead was I do not know. When he wrote it, I do not know but——
Mr. O'Malley: I do not care twopence whether it is or not. The view of Attorneys General since 1955 has been not to prosecute under Acts 600 years old. Quite frankly, I think they are right. If they were to prosecute, even if they had a copy of the Act, which they have not, the first question, as I pointed out here last week, that the defendant or his counsel would get up and ask is: “Prove the Act. You are prosecuting me under an Act: prove it.” There is provision in our legislation that one can prove an Act of the Oireachtas in a particular way without calling on, say, the Clerk of the Dáil or the Clerk of the Seanad to prove that it has actually passed both Houses. I think the provision is that if it is published by the Stationery Office, or something on the face of it appears to be an official document, then it can be regarded, in the absence of proof to the contary, to have been passed by both Houses and to have been signed by the President. But what are you going to do with an Act of 1381 which was originally written in Norman French which no one now can speak? There is no extant copy of it. The writers on these topics rely on Mr. Roughhead, whoever he is, and his edition of what he believes was said in these Acts; he may well be accurate but I am afraid that is not sufficient to sustain a criminal prosecution.
Professor Kelly: The Minister accused the lawyers—I presume on this side—though he did not take the trouble to exempt the ones on his own side, both of whom made long speeches here on the last day, and whom I  expect to hear quite rightly contributing to this debate——
Professor Kelly: “Carry-on” is a word that the Minister has learned from Senator Ó Maoláin. I would advise the Minister to drop it from his vocabulary because it will not make him any friends. I hope the Minister will not take it amiss if I say that he has wasted the last ten minutes by avoiding dealing with the point which Senator Robinson and myself have made. I am not interested in the advice which an Attorney General may give the police about the advisability of using a particular statute to prosecute or not. I think that Paddy McGilligan was probably very well advised when he told the Garda in 1955 that it was taking a risk to bring a prosecution under a statute 600 years old and if the present Attorney General were to give the Minister that advice he would be well advised too. That is not the point. The point as to whether the prosecution is likely to succeed or not is a perfectly different question from the point whether this statute is in force or not.
Professor Kelly: The Minister is doing himself no credit by approaching a serious legal question on which people's liberties may hang in this way. Either the statute is in force or not, or there is doubt about whether it is in force or not; there have been occasions in the past, as the Minister knows, when statutes were passed here in order to repeal large loads of ancient lumber. Nobody had bothered to find out to what extent they were still in force, but just to be on the safe side they were repealed. The Minister knows that there are Acts of that kind. If he wishes, I will produce them for him tomorrow. We have had Acts of that kind. I suppose we will have them again in the future. I should like to know from the Minister what is the point of view of his Department or the Attorney General's office today. It is no use citing the Attorney General of  1955 because, if I understood the Minister correctly, he gave no opinion on whether the Act was in force or not. He merely gave an opinion on the practical advisability of using it for prosecutions and on practical experience which had been gained when it was used in prosecutions. But what we want to know is are these old Acts in force or not. Does the Government regard them as being laws here or not or are they in doubt about it? If they regard them as being in force, or if they regard the matter as doubtful, then their plain duty is to repeal them because the existence of these old Acts, if Senator Robinson is correct, and I do not doubt that she is, is plainly contradictory to the sense of this present Bill.
I said a while ago that there was a usual principle that a later statute repeals a former one, but it is not invariable, and there is a large area of doubt and of borderline here. Let there be no sneering at lawyers because, if I may make a remark about what people are quick to do, as the Minister did a minute ago, I find that people who sneer at lawyers the most are the quickest to run to them when they are in trouble and, as long as there is going to be a straw in this world, there will be people there to chop it or, as long as there is a hair in the world, there will be people there to split it. The legal profession is as decent and as honourable as any other one and it ill becomes this Minister, who is a member of it himself, to be throwing dirt on it. His own party have not been slow in recruiting them, and the means by which they recruit them are well known.
Professor Kelly: Let Senator Ó Maoláin not make the House ridiculous. He knows perfectly well I do not teach French and he knows perfectly well also that, if there was any difficulty about enforcing an old statute, I would be the first to recommend either amending it or repealing it and replacing it with a new one. That is what I want the Minister to do if he is  advised that the statutes which Senator Robinson has mentioned are still in force. If they are still in force, and if this statute does not repeal them, it may very well be that this statute will not succeed in repealing them unless it does so expressly. The general principle that a legal statute repeals an earlier one is by no means universal. There is another principle which has equal defenders to the effect that a statute passed for a particular purpose cannot be repealed by a sidewind of a later statute. It might very well be, for all I know, that somebody would argue that the particular purpose involved in the ancient statutes mentioned by Senator Robinson cannot be repealed by the sidewinds of this Forcible Entry Bill. I am not purporting to decide these questions now. I would not attempt to do that off the cuff, so to speak.
What the Minister is doing by taking up this attitude is doing something which Fianna Fáil are always accusing us of trying to do; he is putting bread in the mouths of lawyers. He is making material for litigation. This is the third occasion today on which we, on this side of the House, have tried to simplify and straighten out a difficulty in a Bill which is going to produce either injustice or difficulty, or both. The Minister, it is true, accepted amendments in the other House.
I wish the Minister had been here last week towards the end of the debate, or when the debate had ended. Perhaps, it was the Parliamentary Secretary who was representing him who was here after the debate had ended. The question was what hours or days we were going to sit this week. We were asked by the Leader of the House to agree to finish by Friday. There was objection to that from this side and I asked: “How could we possibly give an indication when we do not know what attitude the Minister is going to take to our amendments?” I wish the Minister had heard the hearty guffaw we got from his own benches at the suggestion that he might have a flexible mind about amendments, at the suggestion that he might be prepared to accept rather than reject  them. It does him no credit, let me tell him.
I want to try to do him and his Department justice. I observe that in the Courts Bill the Government themselves have put down an amendment which goes a very long part of the way, if not the whole way, to meet the point which we made on the Second Stage of the Courts Bill.
Professor Kelly: I have been provoked by the suggestion made by the Minister, backed up by various grunts and growls on the other side, that we on this side are wasting time by “lawyers' rubbish” and by the “carry-on”, a weak as well as an inelegant expression.
Professor Kelly: This particular intervention I shall conclude quickly. I want to know from the Minister what the Department's view is and what the present Attorney General's view is on whether or not the statutes mentioned by Senator Robinson are in force, or whether there is a doubt about it. If the advice is that they are in force, or if there is some doubt, I want to ask the Minister whether he will introduce an amendment expressly to repeal them, because they conflict, if Senator Robinson is right, with the purpose of this Bill.
Mr. O'Higgins: I want to think about this for a moment and I am prepared to do it on the basis of forgetting completely about the 1381 Act, or any other Act that the Minister feels he cannot put his hands on, or on which he cannot give an answer now. If we forget about the old Acts, then the situation is that the only Act which is going to make forcible entry a crime in certain circumstances is the Bill before us at present when it is enacted. In that situation it seems to me that all the arguments made earlier on these two amendments as regards the discrimination between different categories of people are all valid. On the basis that the old Acts are gone and that we need not consider them— and I am not saying this for the purpose of excusing the Minister from giving a reply to the queries put by Senator Kelly—surely the situation is, as has been argued here already, that, while no new right is being given to the owner of superior interests under the Bill, an exemption from the provisions of this Bill is being granted to such persons.
Before I heard Senator Alexis FitzGerald I thought I had understood the Minister's point but, as Senator Alexis FitzGerald was unable to grasp it, I doubt my ability to grasp it. I understood the Minister to argue that his difficulty was that he wanted to treat landlords and tenants in exactly the same way and that, under this definition section, he was doing that because, while he was exempting landlords under the general description of “any person having an estate or interest in land”, he was also exempting tenants. What the Minister has not dealt with adequately to my satisfaction is the question of this pyramid of interest which can arise and does arise very frequently. I could understand it more readily—I do not say I would necessarily accept the argument—if the Minister said: “Listen, I am concerned here with simply two classes of people, landlords and tenants. I want to ensure that both of those are treated in the same way and I want to ensure that the criminal law is not going to be—I think the phrase he used was— the dominant theme in landlord and  tenant relations.” I could understand that provided the Minister, when he was talking about a landlord and a tenant, was talking about the tenant who was in occupation and the landlord as being the person entitled to the reversion immediately expectant on the termination of the occupancy of the tenant. In that sense I could see that there would be something to be said, possibly a great deal to be said, for the Minister saying: “Right, as far as these people are concerned, the tenant who is there in possession, even if his tenancy has expired and he is overholding, that person, and the landlord who would be entitled to possession when that tenancy is gone, remove any application of the criminal law to those individuals. Let them battle it out under the civil law.”
There is quite a case to be made for that but the Minister does not do that or, at least, he does that, but he does not stop there. He also, by virtue of his definition, gives the same exemption for every superior interest over and above the landlord who would be entitled to possession when the tenancy is gone. I want to give this kind of example, and I shall try to make it so simple that even lawyers will understand it, never mind non-lawyers: if we have a situation where A is the fee simple owner of land, A makes a fee farm grant to B; B then is the person entitled under the fee farm grant to possession and occupation of the land; B goes further and makes a lease for 999 years to C—there you have a situation straight away where you have the fee simple owner A, who is not entitled to possession; you have the fee farm owner B who, likewise, is not entitled to possession because he has made a lease to C. At this point C is entitled to possession because he has a lease for 999 years. C then goes on and makes a sublease to D for, say, 600 years. There you have three people above D none of whom is entitled to possession. D is the only one entitled to possession. Let us assume that D decides to develop the land and he gives licences out to various builders and as a result 100 houses are erected on that land and each house is granted a lease of, say, 550 years: now you have a situation in which you have 100 owner/  occupiers of houses. Above them you have the sublessee D, the lessee C, the fee farm grant owner B and the fee simple owner A. Suppose, somewhere along the line, the lessee C died intestate, a widower with five children all of whom, by virtue of the Succession Act, have an equal interest in his share of the rent, you then have a situation where you have the fee simple owner—possibly his interest is scattered amongst various people—the fee farm grant owner, whose interest may be scattered among various people, the first lessee, whose interest is scattered and the interest of the person who has died intestate and which is split five ways. Under all that you have 100 houses erected on that estate. All of those people, the fee simple owner, the fee farm grant owner, the lessee, the original sublessee and the people entitled to their interest, have an estate or an interest in the land. None of them is entitled to possession, or none of them ever will be entitled to possession, in the forseeable future. Is it reasonable that all of those people should secure exemption under this Bill? But that is what is being done.
There is no point in the Minister reducing it to the simplicities of the situation by talking about a landlord and a tenant. It is not only a landlord and a tenant who are concerned here. There is a tenant, on the one hand, and a whole pyramid of interests, on the other hand. One solution for the Minister's difficulty would be to say: “Let us reduce it to the very simplest and clearest issues of a tenant, on the one hand, and a landlord, who would be entitled to possession after that tenancy has ended, on the other hand.” In that framework the Minister's argument might be understandable. I have not considered it very fully but you would at least have something balancing something else there instead of a whole pyramid of interests, on the one hand, and a single tenant on the other. If the Minister would look at that suggestion between now and Report Stage he might be able to come up with another definition which would get him out of the difficulty he obviously is in. I agree fully with Senator Kelly in this. The Minister is in this difficulty because of the way in which this Bill  is worded. If the Minister intends going through with the Bill as it is— again I agree with Senator Kelly here —something must give; obviously, what will give is the desire to keep the relationship between landlord and tenant completely outside the criminal law.
Senator Eoin Ryan, when speaking on this amendment, said that the Bill was intended for certain purposes, but that it may be used for purposes not intended. Then, if my memory serves me correctly, with a lofty wave of the hand Senator Eoin Ryan said: “That cannot be helped.” I disagree fundamentally with that attitude. That is exactly the attitude that seems to me to be coming across from the Minister. To my mind, that can be helped and this is the place to help it. Whatever jeers, jibes or sneers may be made at lawyers in this House or in the other House, it is our job as Senators to give what help we can because of whatever expertise we have in these matters, as well as from our own personal experience in dealing with problems of this sort. Of course, it can be helped and we are trying to help it by urging on the Minister at least to consider these amendments or something similar.
Mr. Honan: The last example that has been given by Senator O'Higgins makes me wonder whether this discussion is worthwhile at all. I have no personal experience of purchasing property or the building of houses, but I know that the common practice is that, if anybody wishes to purchase an estate, be it big or small, the first thing he does is to consult his solicitor——
Mr. Honan: ——with the idea of establishing title. I do not think that any man in his sane senses would contemplate building 100 houses on an estate, as described by Senator O'Higgins, with a pyramid of interests.
Mr. Honan: I do not think any man in his sane senses would build that number of houses and subsequently find that he had a pyramid of owners breathing down his neck. I have never heard of a case like that. I have some experience of local authorities and they certainly would not put a house anywhere where they would not have a clear title to the land. We have a situation here where we are splitting hairs. There have been innumerable Acts passed by successive Governments through the Houses of the Oireachtas before tonight. One would imagine that this Bill before us tonight was the most momentous piece of legislation that was ever put before the Oireachtas.
We have obviously upset the lawlords here. I venture to suggest that if we were to take the advice of our four law-lords here, and enact a Bill precisely as they desire us to do, there is not the slightest doubt but that there would be people in the Four Courts who would bring it before the Supreme Court and have it turned upside down in as little time as it would take you to say “Jack Robinson”. Everybody would like to see perfection in law and it would simplify people's problems tremendously if this could be done. I do not know of any case where Daniel O'Connell's coach-and-four could not be driven through most Acts enacted by the Oireachtas——
Mr. Honan: ——and ordinary people know that to their cost. Whether or not the Minister's opinion is as good as the people who are advising him, I could not say, but his opinion and the advice he has got is likely to be as good as the advice he is getting here tonight. I have been in the Seanad for a few years now and I have heard one  accusation after another against the Government from a lot of people who have a lot of talk out of them tonight. No less than a couple of months ago they accused the Minister of copying British law, that every law that was enacted here was a copy of a British statute, that we should be bold enough to bring in our own laws as they affect our own people and that we should leave all this antiquated British law behind us. We hear ourselves tonight being hammered with Acts of 1381, 1429 and others. I do not know whether it is British law but I accept it as British law because of all the quotations we have had tonight. This is what we were told we should not be doing. Here tonight we have taken two hours to discuss this section and we do not seem any nearer to the end of it. What we are doing tonight is usurping the functions of the Judiciary and if the Bill is not good enough for the Judiciary no doubt somebody will find out whether it is or not.
Professor Kelly: I know Senator Honan is gallantly coming to the aid of a hard-pressed Minister and I do not despise him for his contribution at all, but I should like to say this about the duty of any Member of either House whether he supports the Government or is a Member of the Opposition. There is no question of usurping the function of the Judiciary. It is not very long—I will get back to this section in a moment but I should like to come to what Senator Honan has said—since a very lengthy resistance was put up by the Opposition in both Houses to the Livestock Marts Bill. One of the constant themes of the Opposition on that occasion was that there were sections in that Bill which were repugnant to the Constitution and they were subsequently shown to be right.
Last December a Bill was passed by both Houses in one day. It was the Bill to give special powers to the Dáil Public Accounts Committee. I do not think I am betraying any party secrets when I say that on our side we were told this was an all-party attempt, this was one of these Dáil things which surmounted party feeling, that we must facilitate the Government in what they  wanted to do—we were not whipped into this point of view—but this is the word which went round, that we were to facilitate this. It might have been better for us had we neglected that advice. It might have been better for us, instead of letting it go through, as Senator Honan would wish every Bill to go through, if we had sat down and said: “No, we will have a look at this thing——
Professor Kelly: ——and we will see if there is something in it which is repugnant to the Constitution or which is objectionable in some other way.” Had we done so I believe that the country, let alone the Government, would have been spared a minor crisis. It is little to our credit that we allowed that Bill to go through in one day. I willingly accept my share of the blame for that because I, like the other lawyer Members here, am supposed to have the kind of training which would enable me to spot the weaknesses in a Bill of that kind and I accept my share of the blame for that. Therefore, I will not accept blame from Senator Honan for doing the opposite, for doing what I take my duty to be, and I am sure I speak for Senators FitzGerald and O'Higgins as well. I believe I speak also for Senators Ryan and Nash on the far side.
What are we doing here? We are not producing a manifesto, we are not producing a pamphlet or a book of instructions on how to lead the good life; we are trying to make law here, and where are lawyers to be used or where is anybody's intelligence to be used in a case like this except they are trying to see where the thing is weak? We say it is weak. It is weak and bad. I have explained to the Minister several times, and I cannot believe there is anyone in the House so unintelligent as not to be able to see the point what the discriminatory effect of this provision will be if it is passed.
Professor Kelly: No. On the contrary. On the occasions that I have  passed personal remarks about him they have included the remarks that I believe him to be not unintelligent. I said I do not believe anyone in the Seanad is so unintelligent as not to see the point that we are making.
If this passes without either Senator Robinson's amendment or mine, I confidently predict that this Bill when it passes into law will not work the way the Minister wants it to work, if it is not shot down by the Supreme Court. I make no prediction about the Supreme Court definitely shooting it down. But either the Supreme Court will shoot it down or it will not work, one or the other. That is my firm prediction about it.
Mrs. Robinson: I should like to make some remarks on the comments of the Minister when he was asked about the earlier statutes on forcible entry, whether they are still law in this country. I agree with Senator Kelly that he did not really answer the question. He quoted from the 1955 advice to the then Minister for Justice that it would not be very wise to implement them or that they might not work.
He also said that they were very old, they were written in Norman/ French and nobody could get an authoritative text on them. The Minister's attention might be drawn to my own recollection of the Criminal Justice Bill which came before the Dáil but has not yet come before this House —and I hope it never does. In that Bill there was a long Schedule repealing very old statutes, among them Magna Carta of 1214 written in Norman/French and this does not seem to have prevented the parliamentary draftsmen from taking cognisance of these old statutes, from repealing sections of them or not as the case might be. It is very bad that there is this lack of clarity here.
The Minister is obviously unsure whether the early statutes do or could operate in this country. He is not clear whether we can, as in England in the last few months and the last few years, have numerous prosecutions for forcible entry, forcible occupation, conspiracy  to forcibly enter and, as I have already quoted, an improvement of the civil procedure there. If it is possible to operate these old statutes quite effectively and quite without any opposition in England I cannot see why it is not possible to do so here.
This is all a side issue to the major principle of the reason for putting forward these amendments—that whether these old statutes are operative now, and that seems to be in doubt this new statute is departing fundamentally in principle from the definition of the meaning of the word “owner”. Under the Forcible Entry Bill an owner is included as a person who could be guilty of a crime of forcible entry or occupation. Here under the definition of “owner” we find that any person having an estate or interest in land need not have an immediate right to possession, they need not have even a remote right to possession. They may have a very extended interest in the property, yet they are exempted from the provisions of this statute.
The Minister has failed entirely to even explain, never mind convince anybody of the necessity for this. Like Senator FitzGerald, I just cannot follow his argument when he talks in a vague way that this would mean that the relationship between landlord and tenant and mortgagor and mortgagee, would all be suddenly brought into the criminal courts. Why is that not so in England then? Why is it not so here at the moment under the existing law, if that is the existing law? I just cannot follow that argument and I do not think other Senators on this side of the House have followed the argument.
On those lines and for the reasons put forward, I propose to withdraw my amendment because I am not satisfied with the wording of it. It requires a slight change in the rest of the section deleting the brackets in the next sentence and I propose to reintroduce it on Report Stage. I hope the Minister will then be clear on the position.
Mr. O'Higgins: I should not like to embarrass the Parliamentary Secretary but I should like to hear the Minister reply to the point which I raised as regards landlord and tenant. Can we  have an indication as to when he will be back.
Professor Kelly: I am not going to withdraw my amendment but I would be glad of your guidance, Sir. Is it the case that if I press it to a vote I am prevented from raising it on Report Stage, that if I wish to raise it on Report Stage I must withdraw it?
Mr. O'Higgins: Senator Kelly was indicating his intention when the objection came from Senator Ó Maoláin. Earlier I had asked to hear the Minister in reply to the point which I had made in regard to limiting the definition to a tenant and landlord who would be entitled to possession after the termination of that tenancy rather than the entire pyramid.
Mr. Alexis FitzGerald: Was the  amendment withdrawn? I did not think you could withdraw an amendment, save with the permission of the House. There is unmistakably opposition from the Leader of the House to the proposal to withdraw it. The amendment has not been withdrawn because it was opposed.
Mr. O'Higgins: If it is still before the House, I repeat my request to the Minister. In order to minimise the difficulty, would the Minister consider looking at this again with a view to cutting down the definition of “owner” on the landlord side, so as to cut out this pyramid of superior interest that may arise, and limit it to a landlord who would be entitled to possession on the termination of an existing tenancy?
Mr. O'Malley: I shall certainly look at that. There are very serious difficulties in it. I shall look at it more closely between now and Report Stage. However, straightaway, on listening to Senator O'Higgins, I wish to say before I start that I have no brief for fee farm grantors or the like. What Senator O'Higgins should bear in mind is that a fee farm grantor, for example, has a right under the grant he gave to repossess any part of the property, assuming that the rent is in arrears or that some other condition of the grant is broken. He cannot repossess it physically, or enter physically, as against his grantee, because his grantee, in Senator O'Higgins's own example, may be number two in a pyramid of five. The actual physical  re-entry under the terms of the grant would be against number five in that pyramid, one or other or all of 100 owner-occupiers. The fee farm grantor has a legal right to re-entry as against any part of the property. For example, if you are buying one of those 100 houses that have been built on the field that originally was the subject of a fee farm grant, you would be well advised—and I am sure that Senator O'Higgins would agree with me—to ensure in your requisition that you get a receipt for the fee farm rent, even though your purchaser will never really be involved in that at all. For that reason it is not easy to cut it down to the person who——
Mr. O'Higgins: I do not like to interrupt the Minister, but I do not want to interfere at all, and I do not want the Minister to interfere at all with the ordinary case where there is a lease or a fee farm grant, and there is a breach of covenant or a default in payment of rent. The civil remedies and the remedies for repossession, and so on, are there. That does not come into this. Here we are dealing with a question of exempting these people from coming in under the terms of this Bill. That is all. I want to limit it to that only.
Mr. O'Malley: I am sure the Senator will appreciate the difficulty that in the example he gave the exemption under this Bill could not be confined to what he called the No. 4 man there, that is the man who made the 100 subleases, because No. 2 or No. 1 could be entitled under the terms of his grant, or under his predecessor's entitled grant, to physical re-entry as against any one of 100 existing semi-detached owner-occupiers. That is something that immediately springs to my mind as a difficulty. At the same time, I get the Senator's point. We have both gone a long way from where we started, and I am quite prepared to consider it between now and the Report Stage.
Acting Chairman: The fact that a Senator withdrew, or offered to withdraw, his amendment, concludes the debate, whether the House gives leave or not. The second question is that the amendment must then be put. All I can ask now is whether the Senator is pressing the amendment——does he wish to it put?
In subsection (1), line 28, after “any person having an estate or interest in land”, to insert “where no inferior estate or interest exists entitling the person having such inferior estate or interest to the occupation, use or enjoyment of the land”.
Yes, amendments Nos. 7 and 10 belong together. If the House would allow me, I think that the sensible thing would be to begin with amendment No. 10 for the purpose of explaining its intention to the House. These two amendments illustrate one-fourth of the cleft stick into which the Minister has worked himself.
Professor Kelly: I heard the Minister say that he was prepared to look again at the points which have been raised in regard to the definition of “owner”, so far as concerns the question of superior interests. I hope that he will look again also at the question of owner so far as it concerns the person now contemplated by the words “including a person who remains in occupation of land after the determination of his tenancy therein”.
My recollection is that these words which I propose to delete were inserted in the Dáil. Whether they were or not the benevolent intention was to give a certain immunity from the application of this statute to somebody who was an overholding tenant. The idea behind that is presumably exactly the same as the idea which the Minister explained some time ago in regard to not allowing landlord and tenant law to become a matter of concern to the Garda, and I presume what the Minister has in mind here is that a tenant who finds himself a defendant in an ejectment suit or perhaps has had an order for ejectment made against him will not be committing a crime if he barricades himself in and refuses to give up possession.
That, to my mind, is a perfectly fair thing to do. The reason why I want to delete these words is not because I am against them but because I wish to extend that principle to a wider class of persons, including the people the Minister has in mind in using the words which are given in amendment No. 7. I am in favour of the principle behind the words in brackets in amendment No. 7, and the reason why I propose to delete them is because the essence of amendment No. 10 would be to widen the application of that immunity. The reason why I propose it is this.
The Minister has put this whole legislation, both in the Dáil and the Seanad, on the basis that he was out to put a halt to the activities of subversive organisations. I do not think I am doing him an injustice in saying that the subversive organisation element in this thing was uppermost in his mind all the way through. So far uppermost was it that he gave us here last week examples of the kind of advice  which these subversive organisations hand around to one another. He explained that they said: “It does not matter what you agitate about. When one thing drops out of the public gaze, seize on something else. Agitate, agitate.” I quote from column 256, Vol. 71 of the Seanad Report: The Minister said:
The basic instruction with regard to agitation in general terms runs something like this: “Agitate at all times. Pick on any topic, it does not matter what it is. If there is a shortage of something or other in the country, if there is a lack of something or other in a particular locality, pick on that and stick to it.”
I only mention that because it is an instance of how intense the Minister's concentration on the subversive organisation element of this whole discussion has been. So far as his desire to contain subversive organisations is concerned, I am with him 100 per cent. The reason why I put down these two amendments is because I take the Minister at his word that he is aiming at subversive organisations and I want to exclude from the purview of the Bill, so far as possible, people who in the typical case, in 99,999 cases out of 100,000, would have no connection good, bad or indifferent with a subversive organisation.
I know the Minister had these people in mind when he acquiesced in the words in amendment No. 7 being put into the Bill, including a person who remains in occupation of land after the determination of his tenancy. In other words, he is giving an artificial meaning to “owner,” because somebody whose tenancy is determined is not an owner in law in any shape or form and could only be deemed such by an artificial interpretation which the Minister proposes to provide out of compassion.
What I am proposing to the House now is that the Minister should go further than that and that anybody who has been at any stage lawfully in occupation of a premises, should be not immune from civil proceedings but immune from criminal proceedings under this Act even after the conditions which rendered his presence there lawful have terminated. I will give  three or four examples of that and the House will see what I am getting at.
The tenant whose tenancy has expired and who is perhaps defending an action or has had judgment issued against him in an ejectment is the most obvious case. There are other people, some of whom were mentioned in the Dáil, and I could not understand why the Minister would not see this point or did not appear to see it. This is the case of the permissive occupant. There are plenty of permissive occupancies in the country—people who do not pay rent, are not really in a situation or in a relationship of tenant with anybody but who are simply allowed, as a matter of grace and favour, to live in a particular premises or to use a particular premises.
These permissive occupancies are not tenancies and when the permission is withdrawn, which it may be at any time, the person's rights there are at an end. The typical permissive occupant is somebody who digs his heels in and stays on—and I think the Minister admitted this in the Dáil. He would be the kind of person who would regard the place as his home even though he was not paying rent and though he enjoyed no tenancy relationship. That kind of person is not associated with a subversive organisation. I am not saying that the owner of the property ought not to be entitled to have a civil remedy in order to eject such a person. That has to be the case. The main burden of the Minister's song has been, “This Bill is intended to secure us against subversion,” and the kind of person of whom I am talking is not a proper target for a criminal statute, the intention behind which is to protect us against political subversion.
The same applies to somebody who might be lawfully present in a premises as a licencee of a person who was a tenant of the premises. There have been cases under the Rent Restrictions Acts involving members of a tenant's family where the tenant had died. There was a time when the word “family” in the Rent Restrictions Act was very narrowly interpreted so as to mean only parents and children, which would mean that none but the spouse  of the deceased or the children could claim to be family so as to retain an interest in the premises under the Rent Restrictions Acts. But the definition has been judicially extended since then so as to embrace people a bit further removed—a niece or perhaps even a niece-in-law—and these are lawfully entitled to protection under the Rent Restriction Acts.
I can visualise a case in which somebody who is either not a member of the tenants' family on any definition or is a member so far out and who has been there for such a short while that no court would regard him as a member of the family for the purposes of protection by the Act, would still dig in his heels if the tenant died and say, “Well, I am here now and I intend staying here”, and resist any attempt by the landlord to put him out. I am not saying that the landlord should not be entitled to have his own civil law remedies to eject this person. This is the kind of person who is not in the typical or any case associated with subversion and the Minister ought to look at the Bill again and redraw the definition so as to exclude persons of that kind from the operation of this criminal sanction.
Another example would be a mortgagor who has reached the end of the road. The Minister spoke about mortgagors earlier and he said one of his difficulties was that many people did not know what they were. He then gave a succinct and graphic description of a mortgagor—somebody who owes money on his house.
There comes a time when a mortgagor reaches the end of the road and when his equity of redemption is gone. It is not a thing which lasts for ever. A mortgagor who has at one time been in lawful possession of his house and is in no way associated with subversion, even when his equity of redemption is gone, should not be placed in the same situation, for the purpose of this penal statute, as if he were a member of a subversive organisation taking possession of the place forcibly in order to demonstrate a political point of view.
I hope I have said enough to enable  the House to see the point. I do not disagree with the spirit behind the words which I would have deleted by amendment No. 7. I am merely hoping that because of amendment No. 10 the Minister will see his way to accept it. We will be able to extend the idea behind these words so as to include other clearly recognisable categories of persons who are not in one case in a 1,000 associated with subversive groups and whom it would be, therefore, sensible, logical and in conformity with the Minister's own policy to leave out of the application of this statute.
Mr. Alexis FitzGerald: I should like to support that but very briefly by telling the House that I am aware of one particular case in this city where a man died leaving his shop subject to a mortgage in favour of his relations. At this moment and for many years his widow has been carrying on the business by permission given her to do so by the mortgagee who is a relative of her late husband. She never had a tenancy, is not staying on, is there as a mere licensee and she is managing to bring up her family as such. She is not exempt. Although I would join with Senator Kelly in recognising the compassion which lead to this particular amendment, I do not think it goes far enough to take in a variety of cases that could occur to one. That is a case in this city of which I am aware at the moment. If she came home one evening and found through some mistake that she had to break her way into her own shop—you may say this is academic and theoretical—strictly speaking she would bring herself within the range of the criminal code as this is drafted.
I am sure Senator Nash could give many other examples of a similar type of situation. We are all aware that on the industrial front you may have a factory at a particular point of time too large for the entrepreneur who is manufacturing and it may suit him to let somebody into part of his factory pending the further development of it but he cannot let the other party in on the basis of giving them any legal right, because this would obstruct his  complete development. He, therefore, makes a licence agreement with the other party for some years or, perhaps, it may be on a semi-permanent basis but the property interests involved of the owner are such that he cannot afford to allow any legal right in the other company and there is a licence position existing between them. That licensed company could in certain circumstances be brought inadvertently within the scope of this criminal code. These are two cases that occur to me. Others may occur to other Senators.
Mr. O'Malley: With regard to amendment No. 7 those words in brackets now sought to be deleted “including a person who remains in occupation of land after the determination of his tenancy therein” were inserted by an amendment put forward by me on Committee Stage in the Dáil as a result of the Second Stage speech of Deputy O'Higgins. I agreed with what he said in that an overholding tenant should be put in the position of an owner for the purposes of the Bill. I inserted those words and I am surprised to see a suggestion now by Senator Kelly that they be deleted. Amendment No. 10 put forward by Senator Kelly appears to be consequential on amendment No. 7.
Mr. O'Malley: I will go on to deal with it. In normal terminology we  regard as a permissive occupier somebody who had what would generally be regarded by laymen as a sort of a tenancy in the place. He worked as a gardener or something for many years and as part of the perks of his job he was given the gate lodge. He lived there free of rent but at all times subject to the owner of the property. If that permission were withdrawn, he would be in a somewhat different position to an overholding tenant who is covered by the words in brackets be cause he was never a tenant and he would be a sort of overholding permissive occupier, if there could be such a thing.
We dealt with this at some length in the Dáil and I explained at the time that my difficulty was that while I had every sympathy with that man in this particular situation, if I were to accept an amendment on the general lines of exempting permissive occupiers because this is a criminal statute and because the interpretation of it where there was any doubt whatever would be entirely in favour of the defendant, we would be faced with a situation that mere invitees and mere licensees would be exempt also. The case would immediately be made, and I am sure Senators Kelly and FitzGerald will agree with me on this, by whoever was defending them that these people come within the permissive occupant exemption because they went into X's office, shop or whatever it was ostensibly in the ordinary course of business. They were legitimately there for five or ten minutes. It was only then that they decided they would bar the place up and squat. The trouble is if you use the words simply exempting permissive occupants or if you use the somewhat longer version of it that Senator Kelly has in his amendment No. 10, you are still up against that problem, because of the fact that defendants must get the full benefit of any doubt or ambiguity and that people who were originally invitees or licensees will become exempt. I do not want to exempt them because I want to try to prevent that sort of activity of people going into a premises ostensibly on legitimate business, spending five or ten minutes there and then when a sufficient  number of their friends had entered also ostensibly on that business locking themselves in or throwing out the staff.
There is a further point with regard to amendment No. 10 that I feel Senator Kelly may well have put down inadvertently to the wrong section because amendment No. 10 is expressed as an amendment to section 2. But section 2 is the section which prohibits forcible entry. If you have a permissive occupier whether he is the long-term sort of occupier we have been talking about or whether he is the invitee or licensee type, one thing all these groups have in common is that they entered lawfully. It was not in any case a forcible entry. Therefore, the question of any of them committing an offence against section 2 could not arise whether or not they might commit an offence against section 3.
With regard to the question of these sort of long-term permissive occupants, people who might have spent 30 or 40 years in a house, as they often do, under a permissive occupancy or a tenancy at will as it is called, I gave a good deal of consideration as to how I could exempt them without exempting the other groups to which I referred. I was satisfied at the end that they were, in fact, exempted under paragraph (c) of section 2 and under the last part of subsection (1) of section 3 because undoubtedly they entered there and they remained thereon in pursuance of a bona fide claim of right. If a man is in possession of a house for 30 or 40 years, as people very often are, even though it is a permissive occupancy, he himself, his family and, indeed, all his neighbours and associates would certainly regard him as being there under a bona fide claim of right. Therefore, that type of person whom I would be very anxious to exempt and to protect with regard to his property is, in fact, exempt and by not accepting a more general amendment of permissive occupancy in general I am avoiding the difficulty that would arise of exempting people who for a mere five or ten minutes were invitees or licencees.
Professor Kelly: I do not think the Minister is right in the last thing he  says. By the way, I do not want this debate to get into the topic of permissive occupiers alone. I gave at least two other categories of persons apart from permissive occupiers and overholding tenants who I think should be outside the purview of the Bill. I do not think the Minister is right in saying that exemption (c) would cover a permissive occupier who refuses to get out. First of all, the Minister is optimistic in supposing that a permissive occupier whose position is determined will be recognised by a court and have a bona fide claim of right. I do not think a judge would be disposed in most cases to accept that somebody is in good faith if he is told in simple words that his commission is at an end and, secondly, the Act should not apply even to somebody who is in bad faith. This is the point. Let us bear in mind that we are being asked to pass a statute to counter subversion. Let us keep that in the forefront of our minds. Even an overholding tenant, an overholding permissive occupier, an overholding mortgagor or licensee who is in bad faith in regard to what he is doing— as I said earlier, a cranky old woman who barricades herself in in bad faith and will not come out, knowing that she has no right to be on the premises. She certainly is not a meritorious case in the civil law but neither is she an appropriate object of this new criminal statute. I believe that such a person should be left outside the purview of the criminal statute and the Minister will be leading the House astray—un-wittingly perhaps—if he gives the House the impression that the exemption under (c) in section 2 is going to be any good for the purpose of what I am talking about.
People who once upon a time, whenever it has been, were lawfully on the premises—I will not say they should be allowed to stay there, by all means let the person who is entitled to the enjoyment and occupation of the premises eject them by the processes of the civil law—are in the typical case not members of a subversive organisation and are not there for subversive purposes and should not, therefore, be the object of prosecutions under this Act. That is a very simple point and if  the Minister were willing even to indicate a readiness to reconsider between now and Report Stage I would say no more except to mention his two other arguments. He appeared to say that somebody who is an invitee would be somebody who might come into a place of business and ostensibly do business for five or ten minutes and then say: “Hands up, all out, this is a stick-up or this is a sit-in” or whatever it is and order the staff out. I will not give this opinion off the cuff. I will have to go and look it up but the law of invitees will not extend to or protect somebody of that kind. These expressions “invitees and licencees” are usually used in the law of occupiers liability for accidents which happen to people on their premises. A member of a subversive organisation who comes on to my premises affecting to be doing business with me but really for the purpose of squatting there is someone to whom I own no duty in the civil law of occupiers liability in the way that I would to an ordinary invitee who is coming to do business with me bona fide. I may be wrong about that. I do not insist on it. I will look it up before the next Stage but I believe for the moment that an invitee, in other words, is someone who is welcome to come on to your premises to do business with you or to visit you. Somebody who comes on to your premises only ostensibly to do that but really with the intention of doing something unlawful which even under existing law interferes with your ordinary business would be a trespasser in one form or another. I do not think somebody of that kind is an invitee and I do not think the law governing invitees would apply to him and I would not have the same duties to him in regard to care in my premises as I would have to an ordinary invitee.
Although the Minister's objection is honestly meant, I do not think it is a very strong one and if he were disposed to accept that this exemption from the application of the Act should be widened, I do not think it is beyond our combined ingenuity and that of his Department to draft an exemption which would be satisfactory.
In regard to the sequence of these two amendments there is nothing surprising,  as they appear to say, in my moving to delete something which was there because of what Deputy O'Higgins said in the Dáil. The reason I am deleting it is purely consequential on my anxiety to produce a different provision in amendment No. 10 which will be wider than the one mentioned in amendment No. 7 and will, therefore, render it unnecessary. I have no objection to the phrasing of amendent No. 7 as it stands; it would just be untidy. If the House were to accept amendment No. 10 and not accept amendment No. 7, the result would be an untidy result. It would not be fatal but it would be untidy; that is all I have got against the lines which I propose to delete the amendment. I am perfectly certain that exemption (c) in section 2 will not cover the kind of person I mean, who is not in the typical case a subversive person, and I do not believe either that the Minister's anxiety is based on the possibility of an invitee or somebody coming on and ostensibly doing business but really intending to occupy the place unlawfully being let off the hook by the acceptance of my amendment.
Mr. Nash: One difficulty I see in this amendment relates to one of the early squatting cases here in Dublin when the Carlton Hotel in Harcourt Street was taken over. Let us suppose that some people went into an hotel and rented a room for the night. We will all agree that they are in lawful occupation but their real intention in going in was to avoid the effects of this Bill. Next day they told everybody to clear and they barricaded themselves in. Would they not be protected? They would seem to me to be protected if Senator Kelly's amendment came into effect. I see what is at the back of his mind but the whole difficulty that I fear is that if you close one door with a view to protecting what we call innocent people, then you are opening another door and letting in some guilty people. Even people who go into a hotel and book the functions room are in lawful occupation. Let us assume then that they barricade themselves in. Would they not escape all possibility of prosecution if this amendment was  accepted? I say this subject to correction.
Professor Kelly: Again, I say this subject to correction. Offhand, I would say that Senator Nash is probably not right about this. If I were to go into my bank in the morning with the intention of staying behind until the doors were closed and then robbing it—I might do some legitimate business before closing time, lodge money or draw money or transfer from one account to the other—I do not believe, subject to correction, that my presence there is lawful if I have come in with the ultimate intention of robbing it. I believe I am right but I do not think it is beyond the ingenuity of the Minister and his Department and of the combined forces in this House to produce a satisfactory provision which will exempt from the application of this penal statute people who in the typical case are not associated with subversion. That is the whole point. Could I just hear what the Minister's reaction is? Is he going to meet us——
Mr. O'Malley: I shall have another look at it. We have looked at it already and there are a number of problems which we have come up against. I am not certain that we are going to solve them at this stage. I shall certainly have a look at it with a view to trying to do that between now and the Report Stage.
Mr. O'Malley: If there is any doubt, Senator, as to whether I am right or wrong, the defendant must get the benefit of it. At least I am not being dogmatic that I am right and that you are wrong. If there is even some doubt as to whether I am right the defendant must get the benefit of it and the thing is blown out anyway.
Professor Kelly: Could the Minister not put it beyond doubt, that is the point? The reason why I suggest that the Minister might look at what he said about the invitee position—he  might be right about it, but I do not think he is—is that an ostensible invitee might use the amendment in order to get himself outside the application of the law. If the Minister would look that up to see whether he is correct about it,—and I suspect that he is not —but if he is will he consider fairly and squarely whether my amendment could not be further amended by him so as to meet the object which I believe——
The purpose of this amendment is to have deleted from the definition of “owner” the words “Any person acting on behalf of the owner”. I think we have seen during the past couple of hours that, excluding this extension, the definition of “owner” is loose enough and vague enough and, to say the least, unsatisfactory enough. To extend it to cover persons acting on behalf of the owner is in the estimation of my party a highly dangerous thing to do. We believe that it can cover practically anybody.
Our main concern, however, is that we can see this as permitting an unscrupulous owner to employ a still less scrupulous person as his agent to do on his behalf some distasteful work of ejection or some work which might incur for the owner public odium. We see it further as encouraging the development of private law enforcement bodies acting on behalf of private commercial concerns. It needs no great imagination to realise how the approach of such bodies could differ from the approach of the Garda Síochána who now enforce the criminal law. The Garda are guided by a sense of service to the community, they have a proud tradition to uphold and their training enables them to uphold that tradition.
Private forces may not be guided by  such noble traditions and their main concern would be to give satisfaction to the persons who paid them. Furthermore, under this Bill if enacted they will be fortified by the knowledge that under section 6 the defendant whom they would be employed to eject would be responsible for any damage that they may do to his property or to himself. There is no reference in the Bill to the fact that such persons acting on behalf of the owner would be forced to produce any sort of authorisation or any identification to show that they were authorised to act on his behalf. That would be very unfair indeed to the occupier in this regard.
I see this Bill in toto as making a law to protect the strong against the weak and I thought we had got away from that sort of thinking several decades ago. I noticed that the Minister's main objection in the other House to amendments of this kind was that in several instances the owner could not act on his own behalf. I think he quoted limited companies and wards of court and such like. With respect, I think the Minister was talking about civil law and the objections he raised could be covered by having recourse to the civil law.
My party feel that our fears are very real ones in this regard, and only the Garda Síochána should enforce the criminal law. We have very sincere fears and we have very sincere motives in putting down this amendment. Perhaps the Minister can convince us that our fears are groundless. I hope he can see his way to accept our amendment.
Mrs. Robinson: I should like to support this amendment, because I agree with Senator Desmond that it imports into the Bill the idea of private armies, of owners being able to engage others to forcibly enter their property to dispossess others and that these people so engaged would be given complete exemption under section 2 of the Act because they would be included in the definition under section 2 (a) as the owner of the land or vehicle. That is the purpose of this definition, to extend “owner” to anyone whom the owner might engage to act on his behalf. I would agree with Senator  Desmond that in a civilised society with a highly qualified police force we do not want to give power to owners to engage people on their behalf in this way.
We saw an example of that which has been overtalked perhaps—the Hume Street affair. A private army was able to go in and create considerable damage there and these K Security people would be owners for the purposes of this Bill and could not be prosecuted for forcible entry. Yet I think that they might well be one of the groups against whom this Bill might be directed.
Going back to an ironic feature of this Bill and to a sense of history, if the House did not accept this amendment and if we allowed the section to stand as it does to include any person acting on behalf of the owner, we would be granting exemption in this Bill to the barons and their armies which the early Acts were brought in to defeat. They were brought in to curtail the common law and to deny to powerful people the right to engage others on their behalf to enter private property, even if they had the right to possession. They had to either bring a civil remedy or go to the proper authorities—go to the police and have them carry out their dirty work.
Mr. O'Malley: The words which this amendment seeks to delete are essential to the definition of “owner” so as to exclude from the scope of the offences created by sections 2 and 3 anything done by a person acting on behalf of the owner of the land or the vehicle. If the definition of “owner” was restricted as proposed in the amendment a person entering or occupying land or a vehicle in the course of his duties undertaken on behalf of the owner, who would normally be his employer, could find himself committing a criminal offence. This would be a ludicrous position and one for which there could be no justification whatsoever.
 It has been alleged that under the Bill as drafted, security firms acting on behalf of an owner are being given the right to force their way into the property of the owner and to behave in a reprehensible way and that they are being given the full protection of the law for such behaviour. This is, of course, quite untrue. Nothing in this Bill confers on any person any right to enter or occupy land which he does not have at the present time. Moreover, there is nothing in the Bill that condones or authorises behaviour which is contrary to the existing criminal law, nor is anything done by the Bill to exempt persons from the civil consequences of their tortious acts.
In the Dáil I gave a fairly extensive list of instances where the acceptances of this amendment, or a similar one proposed in the Dáil, would give rise to quite ludicrous consequences. It would be the first time in the history of our law that an owner of property could not act through some employee or some agent. The very obvious consequences that spring to mind are so ludicrous that if they were fully appreciated by the proposers of the amendment they would scarcely press it.
One of the most obvious examples that one can give is that of a limited company. A limited company has a separate legal personality of its own. It is a person recognised in law as quite distinct from the individuals who happen to be shareholders or directors of it. Since a limited company, which physically is no more than a certificate in the Companies Office in Dublin Castle, cannot go in to exercise its rights in relation to its property it must act through its agents or servants even though one of these might be a director who owns 99.9 per cent of the shares and who, to all intents and purposes, was the company and was the owner of the property. He would be precluded and that company would be left, as, indeed, every company would be left, in the ridiculous situation that it could not enforce any right in relation to its own property.
You have the example, too, of a situation where, say, an old woman owns certain property and somebody moves into it; she is obviously not  going to be in a position to do very much about it. You have the situation where a great deal of property in this country is beneficially the property of wards of court, persons who may be very young or persons who may be of unsound mind and confined to mental hospitals or similar institutions. All their property is vested in the President of the High Court or in their committee as the case may be. How is the President of the High Court expected to go around to vindicate the rights of his many wards? It simply could not be done.
These are just examples that spring readily to mind. Another example that springs to mind is the question of what does a building society or a local authority, for example, do. They are in much the same position as limited companies. You would have the rather ludicrous position that a corporation could probably only exercise its rights, if it could exercise them at all, if the mayor, aldermen and burgesses physically went there all together and exercised their rights. If it was the case of a council, I do not know what they would do. I presume all the members would have to go together to exercise their rights. The same thing would apply in regard to a building society. If a building society owned property from which it sought to eject squatters or trespassers it simply would be precluded from doing so.
The purpose behind the amendment does not take into account these practical difficulties but, unfortunately, I have to face up to the practical difficulties. To accept the amendment would create an immense amount of extra problems of a far more serious nature than anything it would solve. In fact, I do not think it would solve anything. There were vague statements about private armies. The only example ever given of an alleged private army is some security firm which apparently assisted in getting squatters out of a house or houses in Hume Street in the course of which it was alleged excessive force was used. It may well be that excessive force was used in that case. In fact, it probably was, because one of the people concerned, if not the chief man in the organisation, was prosecuted, convicted  and penalised or fined for some act that he did in the course of this affair. That should bring home to us the fact that security firms or anybody else who might be employed by an owner of property have no rights. They are not given any extra rights by this Bill. They are very much subject to the ordinary law and in the only instance that is quoted where a security firm was used in connection with a matter of this kind one of the members of that firm apparently infringed the law and was prosecuted and convicted for it, which is proof surely—I suppose in fairness to the appellant I should not refer to it and I withdraw any suggestion that he acted improperly under the circumstances.
Mr. O'Malley: The fact that there has been only one alleged instance of the excess referred to shows that is not a problem. Such people are subject to the ordinary law which is, of course, enforced against them in the same way as it is enforced against any other citizen. Therefore, this amendment would not solve any problem. It would, in fact, create an enormous number of other problems. I have already mentioned some of them and I am sure if I spent some time thinking about them I could produce dozens more.
Mr. O'Higgins: I just want to ask the Minister one point in connection with this. I take the opportunity on this amendment to ask it because this is really in point here. I do not want to add to what has been urged on behalf of the amendment. I fully understand the case that has been made for it. The exemption, so to speak, provided here by the definition of “owner” refers to “any person acting on behalf of the owner”. There is no requirement in this definition that that person should be authorised by the owner. Once he declares himself to be acting on behalf of the owner it seems that he comes within the definition and,  therefore, he comes within the exemption. Whatever about the remedy which is suggested in the amendment of deleting the words “acting on behalf of the owner” completely, it seems to me to be essential that “acting on behalf of the owner” should be limited to “acting on behalf of and with the authority of the owner”, so that a person merely by claiming to act on behalf of the owner would not come within the definition and get the exemption.
Mr. Alexis FitzGerald: I think the Minister has made a number of very dubious statements in his remarks with regard to the law. With regard to the amendment, I do not think the amendment would achieve what is sought to be achieved by the proposer of it. I do not think the words are needed in the section to avoid the difficulties that the Minister has referred to. It is a very well established proposition of law that anyone can do anything through his agent unless the statute in question deprives him of the right to do it through his agent. Even if these words were not here the agent in my view— and I think this is a correct statement of the law—would be able to act on behalf of the law assuming he was, as Senator O'Higgins has said, an authorised agent. All these words do is cast in some doubt whether he needs authority to act.
The Minister recited a number of examples. He mentioned the case of a limited company and if it could not organise all its shareholders to go together to exercise its rights. It is well established that a limited company actually operates through its officers or agents and does not need the authority of this statute to exercise or claim any rights that may be conferred on orders by way of exemption under sections 2 and 3. He mentioned that the vesting of all property of lunatics and minors is in the President of the High Court. This is not a correct statement of the law. The property is vested, in the case of lunatics or persons of unsound mind, as they are now called, in the committees of the estates of persons who have legal interests involved and who would be,  for the purposes of this Act, the owners, and in the case of minors are vested in the guardians of the property of the minors and would be as such the owners within this State within the terms and ambit of this section.
The amendment does not achieve anything because, even if the amendment is passed, all it does is remove the doubt that Senator O'Higgins has raised as to whether it is necessary that these persons acting on behalf of the owner be properly authorised or not. If these are exercised, then duly authorised agents will, as a matter of law, without being dependent upon any of the terms or this Bill, be entitled to claim the rights of owners under it.
Miss Owens: There are just a few points I should like to make on the amendment. Senator FitzGerald has just cleared up some of the problems I had in relation to it. The definition of “owner” under this Bill is very important, because it is a word that appears in practically every section, and it is reasonable that we should be clear on what is intended. Quite frankly, it is the lawyers acting on his behalf that causes me great trouble, particularly with regard to section 9.
Senator O'Higgins has pointed out tht there is no formal identification needed under the Bill. This is extremely important, particularly under section 9, the section which gives the right to arrest without warrant. In section 9 (b) the owner of the land makes representations to a member of the Garda Síochána. The interpretation clause “owner” literally means that anybody can make representations to the Garda and it fulfils the requirements of section 9 (b). This is highly dangerous because, as I see it, there is nothing to prevent anybody, Joe Smith, saying to a garda: “I am acting on behalf of the owner”, whether he is entitled to act or not. If it achieves the object, with the result of which the owner would be very pleased, he could then be post facto appointed as the agent. I doubt if this is the intention of the drafters of the Bill.
I would possibly agree that the amendment, as drafted, does not necessarily fulfil all the requirements on  some of the difficult ones, particularly for people without any sort of legal training, but there is a very serious problem here as to what might arise out of the very broad interpretation. I would be quite happy—and I am sure my colleagues here would be— to withdraw the amendment if we felt the Minister was prepared in some way to redraft, between now and Report Stage, an amendment which would cover his very valid point. I accept there is a problem if you withdraw the agent in the cases he mentioned such as wards of court or limited companies. But there are other problems and I should like the Minister to take our view into account on this, particularly in relation to section 9 which gives very wide powers and could have very serious consequences for the people who were arrested in those circumstances.
Mrs. Robinson: In relation to what the Minister said about the problems to which this amendment gives rise, most, if not all, of those problems are covered by subsection (3) of section 1 which provides that—
There must clearly be the permission of the owner or lawful authority. That is wide enough to cover all of the examples that the Minister gave as a reason for not being able to accept the amendment. I would agree with Senator Owens that the wording of this, “any person acting on behalf of the owner”, does give rise to the belief that it would authorise the employment of a large number of people to retake property, and that this would be much better done by our lawful police force, the Garda Síochána.
I would emphasise what I said earlier in relation to another amendment, that we are reversing the whole process of forcible entry, that we are now going to exempt not just the owner but anybody acting on behalf of the owner. If has been well argued by Senator O'Higgins that acting on behalf of the owner does not mean even authorised by the owner, that we  are exempting somebody who says he is acting on behalf of the owner from forcible entry or forcible occupation, from the criminal sections and provisions of this Bill. That is a departure from the position as it was under the law, if the law is still operative. It is certainly a new provision that an owner and those acting on behalf of the owner could not be prosecuted for forcible entry or occupation. I have said before that was the reason for the Forcible Entry Act and to extend it still further from the individual to any agents the individual may employ specifically to either defend or retake his property is the type of situation which was thought not to be condonable in a civilised society in the 14th century, and I do not see why we should allow it now with a regular police force to look after us.
Ruairí Brugha: Perhaps when the Minister is dealing with the query that was raised he could tell us what exactly would happen to the garda who arrested somebody under section 9 (b) if it was a bogus owner.
Mr. O'Malley: With regard to the query out of which the rest of the discussion has arisen what happens if the person purporting to act on behalf of the owner is not acting or does not have authority, the simple answer to that is that he is committing an offence under the Bill. I do not see that any form of authority could be perscribed under the Bill. There are no set ways in which persons could identify themselves as agents of owners. The way of making sure that bogus agents or agents of bogus owners are not going to do anything they should not do is to provide that they will commit an offence if they go ahead and try to do it if they are not duly authorised.
With regard to Senator Brugha's query about what would happen to a garda who arrested somebody on the complaint of a bogus owner or a bogus agent, the short answer to that is that the guard would be very slow to make any move at all in this regard unless he was absolutely certain. In addition to the complaint of a particular set of serious conditions under section 9 (b) having to be complied with, each of  the other conditions (a) (c) and (d) must be complied with also. The possibility of its happening in practice would, I could honestly say, be nil.
With regard to Senator Robinson's predilection for the 14th century, in so far as I have been able to understand the earlier statutes it would seem to me that the 1381 Act and the 1391 Act were not directed at landlords; they were directed against forcible entry. It was the 1634 Act which extended it to landlords in the sense that we know it now, inasmuch as it applied the provisions of the earlier Acts to leaseholds or to chattels real where before they had been confined to freehold only. In that sense it could be said that in certain circumstances what we would now call the landlord would then have been the lessor for a term of years.
Mr. O'Higgins: I should like to know whether or not it is intended that a person acting on behalf of the owner should be a person who is genuinely an agent acting with the authority of the owner. I am not raising this simply as a debating point. It is an important point and I could accept it from the Minister, if he said to me: “I want to exempt people who are genuinely acting on behalf of the owner, whether or not they are authorised”. If I see someone whom I am quite satisfied is up to no good and is entering the Minister's car, and if I try to stop that person from entering the car, I may be acting on behalf of the Minister genuinely, but I have no authority. It seems to me that under the present wording I would be exempt. That could also apply the other way: by acting on behalf of the person who is an owner, although having no authority, good, bad or indifferent, a person might succeed in getting an exemption under this Bill  which the Minister does not intend him to get. Is it intended that this phrase “any person acting on behalf of the owner” should be limited to a person who is authorised, no matter how formally, or even if by implication the authority is there? Or is it intended that it should cover anyone who, out of the goodness of his heart or the badness of his heart as the case might be, decides to act on behalf of an owner?
Mr. J. Fitzgerald: Can we leave the way open here for an owner of property which he intends to develop and in which there are people living whom he tries to get out by one means or another? If he asks the leader of the local gang to get these people out of the house, by intimidation or other means, can he be taken as the agent? What authority has that owner to give to that local gang boss, if he is acting as his agent?
Miss Owens: In reply to a query from Senator Brugha, the Minister mentioned that the Garda Síochána would be very loathe to move on the submission of a person purporting to be the owner, unless he was reasonably sure that he was the owner. This puts a very unfair onus on a member of the Garda Síochána, who may come upon a very unpleasant situation. Somebody comes along and says to him: “I am acting on behalf of the owner of this property and I want you to arrest this person.” This is very unfair to a member of the Garda Síochána. In those circumstances there should be some form of identification or some authorisation so that the  member of the Garda Síochána could say: “Can I have your identification? How do I know that you are the agent?”
The point that a person who purports to be the agent commits no offence under the Bill presumably is a fair one. However, I do not know what the penalties for that are; I know the penalties for forcible entry and forcible occupation, but I do not know the penalties for this offence.
Mr. O'Malley: It would not be an offence under this Bill, but it could possibly be an offence of creating a public mischief, similar to bringing the fire brigade to a bogus fire. With regard to what would be the position of the garda, if he was in doubt as to the bona fides of the person making the request, he would not arrest. That is quite clear. That particular problem does not arise. The gardaí are very sensible men.
Miss Owens: I agree the gardaí are sensible men. That is why I should like to make sure that they would not be put into this position, because it would be very unfair to them. Now it is not an offence under this Bill: it is an offence under some other Act, and we  do not know what the penalties for it are. This makes me more uneasy. It is quite wide open and the power of arrest without warrant is a very serious one for the people who might be arrested. This bogus agent could do this, and members of the Garda Síochána could be put in the position where they might operate section 9 on the recommendation or the request of a bogus agent. If they do so, who is going to charge this bogus agent, if it is proved that he was a bogus agent? My contention is that it would be in the actual owner's interest to say: “Well, okay, he was my agent,” although in fact he was not at the time.
Mr. O'Malley: In relation to Senator Owen's point, when she asked me what the penalty would be, I assumed that it was the penalty for a bogus agent forcibly entering and putting somebody out. I said that it would be the penalties set out in section 7, because that would be an offence under section 2. However, I missed the point, because apparently what she was asking me was what would be the penalties for passing yourself off to a garda under section 9. While that would be an offence, it would not be one under this Bill, and I could not say offhand what the penalty would be, but probably it would be about £50, or three months imprisonment, or both. I could find that out for the Senator before tomorrow.
Mrs. Robinson: Could I ask the Minister what is the difference between the wording “acting on behalf of the owner”, which is attempted to be deleted, and what I referred to in section 3: “or with the permission of the owner”? What is the necessity for this wording?
Mr. O'Malley: One of the differences that strikes me is that under subsection (3), somebody acting with the permission of the owner is not necessarily acting on his behalf. Somebody acting with the permission of the owner would be a licensee and would not necessarily be the agent.
Mrs. Robinson: Does it mean that somebody could be acting on behalf of the owner without his permission? They could be asserting that they were acting on his behalf and it would not be necessary for them to have his permission?
Mr. O'Higgins: Can you have a long line of delegation of authority here? “Owner” is being defined, amongst other things, as a person acting on behalf of the owner. If the person acting on behalf of the owner authorises someone else or gives permission to someone else, does that person become owner under the definition ad infinitum?
Mr. O'Higgins: You have, as Senator Robinson points out, this phrase in subsection (3), “lawful authority or with the permission of the owner”. But that can be read as “with the permission of the person acting on behalf of the owner”.
The last words the Minister used in  replying to amendment No. 8 has virtually made the case I wanted to make in regard to amendment No. 9. This is not contentious; this is really little more than a matter of drafting and I do not propose to delay the House on this matter.
The Minister has stated not more than 60 seconds ago that the word “authority” to him implied the gardaí or sheriffs or something of that kind. That is exactly what it means to me too, and I think that is what it means in normal speech. If we are speaking about an owner or somebody exercising his own rights, we do not use the word “authority”, we might use the word “right”. This is a small point and I am only concerned with having this subsection drafted in such a way as to make it clear that the Act does not apply either to entry in the exercise of lawful authority, which I take to mean, let us say, entry by a garda in pursuit of a search warrant, or entry by a sheriff under a warrant entitling him to enter, or by the owner himself, or by somebody with the owner's permission. My amendment seeks to delete the words “or with the permission of the owner” and to substitute “or by the owner, or with his permission”. In other words to bring the owner in specifically, because as the subsection stands there is no mention of the owner at all, except the mention of somebody coming in with the permission of the owner. The expression “lawful authority” in normal usage as the Minister implied does not include “owner”. It is a small drafting point. Possibly I misunderstood something but I think the subsection would be better if it were amended as I have suggested.
Mr. O'Malley: I think the amendment is unnecessary because an entry or an occupation by an owner is in terms excluded from the scope of the offences created by section 2 or 3 and, therefore, it is not necessary to refer to it specifically here. In any event, if it were, it must be presumed beyond doubt that if something may be done with the permission of the owner it may be done by the owner himself.
Professor Kelly: If that is so, the whole of subsection (3) is otiose because the intent of section 3 would be adequately covered by exemption (c) in section 2. If what the Minister is saying is that the offence under section 2 is not constituted by anybody who enters under exemptions (a), (b) or (c), if somebody enters under exemption (c), he enters in pursuance of a bona fide claim of right and quite clearly anybody who enters and——
Mr. O'Malley: I am afraid the Senator misunderstands me. I did not say that. I said that in the terms of the sections themselves the owner is excluded from committing an offence under section 2 or 3. In section 2 it would be (a) because (a) reads: “he is the owner of the land or vehicle, or”.
Professor Kelly: The point is not one of substance; it is one of drafting. There is something sloppy here either in subsection (3) of section 1 or in section 2. If the Minister wants sloppy legislation, that is all right with me. I have done my best to point it out to him. Exemption (a) and exemption (c) in section 2 cover all the ground of subsection (3) in section 1. If subsection (3) of section 1 has some purpose, then the recitals of it should be extended to include “entry by the owner” as well as “with the permission of the owner” because, as the Minister has said, the expression “lawful authority” normally means not the exercise of a private right by a private owner but the exercise of some public right by a garda or sheriff.
Mr. O'Higgins: If subsection (3) remains—as apparently the Minister wishes—should it not be made clear that we are referring here to the prior permission of the owner, not to sanctioning or ratifying later something that has been done in the name of the owner?
Mr. O'Malley: I do not think this is necessary, nor do I take Senator Kelly's point. I accept that he makes it in all good faith to try to make this more clear but I do not think it does this. The point is adequately covered either by subsection (3) as it stands or by section 2 or by a combination of both.
Professor Kelly: I do not wish to string this out; perhaps we are all tired and it might be better if we left this until the morning and the Minister can consider this matter again. A scholar looking at this would be able to reconstruct the process by which it was drafted and he could come to the conclusion either that subsection (3) of section 1 had been drafted first and whoever drafted the exemptions in section 2 forgot to adapt subsection (3) of section 1 accordingly. They seem to cover much the same ground. If there is any point in saying in set terms “nothing in this Act shall apply to certain persons” then let us enumerate them properly. The enumeration that has been made is sloppy.
The only meaning which subsection (3) has is to make it plain that the Bill does not apply to a garda or a sheriff or somebody authorised by an owner to enter the property. Why not include the owner as well? The Minister states that the owner is expressly excluded from the commission of an offence under section 2 or 3. What is the point in bothering with subsection (3) at all because the other people are excluded equally? I do not mind either way but perhaps the Minister would like to speak on the matter.
Mr. O'Malley: The owner was defined there. The purpose of defining him was to exclude him. He is defined at great length and it takes in all sorts of people who would not normally be regarded as owners at all. Having clarified the point regarding the owner subsection (3) was inserted to make it clear that people like sheriffs and gardaí and those who had the permission of the owner were also outside the scope of the Bill. It is not necessary to specify the owner as such.
Professor Kelly: I do not want to string this out unreasonably. If the Minister is relying on the definition section in the paragraph, or the hunk, as he calls it, dealing with owner, in order to demonstrate to us that there is no need to mention him in subsection (3) of section 1, equally it does not seem to me there is any need to have the words “with the permission of the owner” because the very same hunk further up the section mentions any person acting on behalf of the owner—the matter we have just been talking about. I do not wish to annoy either the Minister or his officials——
Professor Kelly: I am not saying the two terms are co-extensive but one certainly includes the other because  somebody who is acting with the owner's permission is undoubtedly acting on his behalf. The Minister or his Department might perhaps look at this overnight because between the definition of “owner” or subsection (3) or the exemptions in section 2 it seems to me we are ending up with a sloppy set of provisions.
Mr. O'Higgins: To my mind it is a bit more serious than this. I do not wish to go back over the discussion we had as regards the definition of “owner” but it is relevant to point out that the definition of “owner” here in relation to land refers to any person having an interest or estate in the land and we have discussed earlier this question of a pyramid of interests. Now it transpires under subsection (3) that any of those people, even a person having a very remote superior interest—when I say superior I am talking about a person higher up in the step of the pyramid—can secure exemption for a person by giving that person permission to forcibly enter land. Subsection (3) here goes a lot deeper even than we have been considering. It enhances the importance of Senator Kelly's amendment. It might be a good idea if the House would agree that we should break off discussion at this point and think about it between now and tomorrow.
Professor Kelly: What Senator O'Higgins says is true, but my amendment would not cure the trouble that Senator O'Higgins is talking about. I recognised this trouble all along but the reason I did not try to cure it here was because the amendment which I put down in the owner section was intended to cure it. However, I am willing to leave the discussion over until tomorrow.
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