Joe Costello (Dublin Central, Labour)

I suppose I should start off by thanking the Minister of State. It is the first time that I have had the opportunity of thanking him for sharing his time with me and with the Opposition.

The present convulsions in the Irish economy have revealed some strange practices in commercial activities. What ordinary citizen in his or her right mind would have imagined that commercial rent reviews could only be upward and that a downturn in the economy could not be reflected in a similar downturn, or reduction, in the existing rent of commercial premises?

The Government's attempt to rectify the anomaly last year, in the Land and Conveyancing Law Reform Act 2009, only applied to new leases and thus fails to address the existing business leases which are the real cause of the problems. The Government has refused to move beyond this point referring, as the Minister, Deputy Dermot Ahern, did last night, to the Attorney General's advice, which the Minister has not published, and blaming the Constitution as the obstacle.

This is exactly the same hands-off position adopted by the Government on the Kenny report on land valuation after rezoning. If implemented at the time it was published, the Kenny report would have prevented most of the corruption of the planning process and the reckless rezoning, which has destroyed much of our urban, and indeed, rural, landscape and has gave rise to a number of tribunals of inquiry.

The question that the Government should have put to the Attorney General was whether it was constitutionally correct that a one-sided system of upward-only evaluation of commercial rents that could benefit only one party, namely the landlord, should be recognised and was enforceable in the common law of the land. That was the question that should have been asked.

The constitutional requirement of natural and social justice, fairness and the public interest would seem to suggest otherwise. For example, liquidations or assignees in bankruptcy cases can disclaim or walk away from the leases of insolvent companies or bankrupt individuals where they believe - mark my words, they need only believe - the terms of these leases are unduly onerous. That can be done within the present law without infringing constitutional principles.

Indeed, a better example is to be found in the Minister's Act, the Land and Conveyancing Law Reform Act 2009. Section 50(1) of the Act states:

A servient owner may apply to the court for an order discharging in whole or in part or modifying a freehold covenant (whether created before or after the commencement of this Chapter) on the ground that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of the servient land.

The Act goes on to state, in section 50 2(f), that the court shall have regard to "whether compliance with that obligation has become unduly onerous compared with the benefit derived from such compliance". Thus, if it is constitutionally possible to set aside or modify a freehold covenant or agreement where the obligation to pay is unduly onerous, then surely it cannot be unconstitutional to set aside a leasehold covenant where the obligation to pay has become unduly onerous? There are precedents. The Minister did not choose to go near them. If he had done so, then this piece of legislation could now be enacted.

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