Brian O'Shea (Waterford, Labour)

Nuair a toghadh don Seanad mé i 1987, thug Príomh-Aoire Fhianna Fáil, an Seanadóir Liam Ó Riain, an-cabhair agus an-chomhairle dom, go ndéana Dia trócaire ar a anam dílis. Is cuimhin liom go maith é á rá liom go bhfaigheadh mé amach de réir a chéile nach mbíonn reachtaíocht a achtaítear faoi bhrú ama go maith. Fuair mé amach go raibh an ceart aige agus mar chruthú air sin ní ghá dúinn ach féachaint ar an gcrúachás ina bhfuilimid inniu.

As a newly elected Senator in 1987, the then Fianna Fáil Whip in the Seanad, the late Senator, Willie Ryan, was extremely helpful to me in terms of assistance and advice. He told me on one occasion that I would find with experience that rushed legislation does not turn out to be good legislation. Today's business brought back Senator Ryan's advice forcibly to me. I wonder what he would have thought of the fact that, according to research available to me, during the existence of the revising Chamber, Seanad Éireann has taken Committee and Remaining Stages together on 171 occasions out of a total of 173, or in 98% of cases, under the present Government. In the Official Report, the heading Committee and Remaining Stages occurs 69 times, 52 of these, or 75%, were between June 1997 and the end of 2002. What is crystal clear is that the Government has increased the amount of rushed legislation passing through the Oireachtas to a dangerous level. The basic function of the Legislature is being most seriously undermined.

I have opposed ground rents all my political life. I have campaigned for the abolition of ground rents and I published a Private Members' Bill on the subject in the early 1990s. Ground rents are an anachronism and a nuisance and have little useful function, if any, in a modern democracy. The Taoiseach informed the House that the Government would like to do its best to abolish ground rents but that there are constitutional concerns regarding citizens' property rights. It is decidedly odd that the Government is seeking here to preserve the rights of the public sector thereby overriding the property rights of citizens. For this the Wild Geese spread their wings.

The two Houses are being asked to take a great deal in good faith in regard to explanations proffered about a Bill that was shown to us yesterday afternoon. I thank the officials for the briefing we were given. By way of comparison, the Health (Amendment) (No. 2) Bill 2004, intended to plug ongoing exposure calculated to amount to up to €2 billion, was presented on a Monday and was debated on the following Thursday and Friday. The only equivalent to genuinely overnight legislation like this which I can recall was the Offences Against the State (Amendment) Act 1985 which granted the power to seize identified funds held by the IRA in a bank account which was liable to be withdrawn at a moment's notice.

It is worth noting that the original 1999 British-Irish Agreement Bill was presented to the DáiI on 8 March, it passed Second Stage on 9 March and passed all further Stages on 10 March. Only three hours were allocated for the completion of Committee and Remaining Stages. When the guillotine fell, the House was on section 16 of a 56 section Bill. The error sought to be corrected was to be found in section 53(b). The guillotine involved the composite approval of 11 Government Committee Stage amendments and two that had missed the Committee Stage deadline and were submitted on Report Stage. The Bill passed all further Stages in the Seanad the following day. The agreement to which the Bill gave effect, establishing North-South Implementation Bodies, had been signed by the then Minister for Foreign Affairs, the former Deputy, David Andrews, and the then Secretary of State, Ms Mowlam, on the day before the Bill passed all Stages.

According to the then Minister:

An important additional safeguard put in place yesterday was that, in an exchange of letters between the Secretary of State and myself, we agreed that the two Attorneys General will consult and co-operate as necessary to address any problems which may arise concerning the interpretation and application of our respective domestic legislation in regard to the bodies. The two Governments are also committed to taking all the appropriate steps should problems arise. The adoption of an approach under which most of the substantive detail is contained in an agreement between the two Governments, rather than in separate legislation, should minimise the risk of divergent judicial interpretation.

If there has been consultation on this issue, the discussion has taken place more with Westminster than with the parties in Leinster House. If discussion has not taken place, what importance was attached to this "additional safeguard"?

Section 5 of the 1999 Act contained a most extensive power to overcome the sort of problem that might be generated in the haste to legislate. It states:

If in any respect, any difficulty arises in bringing any provision of this Act or the Agreement into operation or in relation to the operation of any such provision, the Taoiseach may by regulations do anything which appears to him or her to be necessary or expedient for removing that difficulty, for bringing that provision into operation or for securing or facilitating its operation, and any such regulations may modify any provision of this Act so far as may be necessary or expedient for carrying such provision into effect for the purposes aforesaid, but no regulations shall be made under this section in relation to any provision of this Act after the expiration of 3 years commencing on the day on which the provision came into operation.

That section has its own constitutional difficulties and, in any event, it became spent three years after the Act came into operation. It is noteworthy that the problem we are addressing here went unnoticed not just in the course of the drafting process but apparently for the first three years during which the legislation was in operation.

The relevant portion of section 53 of the 1999 Act provides that a North-South body shall be deemed to be an "appropriate State authority" for the purposes of section 70 of the Landlord and Tenant (Amendment) Act 1980. That section in turn provides that a person who, but for section 4 of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978, would be entitled to acquire the fee simple of a dwelling house shall, notwithstanding those provisions, be entitled to acquire that fee simple unless "the appropriate State authority" is satisfied that such acquisition would not be in the public interest and so certifies. Section 4 of the 1978 Act simply states that the Act does not bind a Minister of the Government, the Commissioners of Public Works in Ireland or the Irish Land Commission, collectively grouped as State authorities.

In summary, the 1978 Act contains two separate provisions, covering the acquisition of the fee simple in dwelling houses and in other property. Neither set of provisions bound the State as landlord. The 1980 Act allows the tenant of a dwelling house to acquire the fee simple from the State, unless there is certified to be a contrary public interest. The 1999 British-Irish Agreement Act, we presume, was intended to assimilate North-South bodies to the position of State authorities exempt from the non-dwelling house provisions and exempt, on "public interest" certification, from the dwelling house provisions. However, that intention was inadequately put into effect. The combined effect of the three Acts is to state that a tenant who, but for the fact that the ground rents legislation does not bind landlords who are Ministers, the Office of Public Works or the Land Commission, would have been entitled to cancel the ground rent and buy his or her property outright can proceed to enlarge his interest and acquire the fee simple from them unless the appropriate North-South implementation body certifies that such acquisition would not be in the public interest.

This is an entirely meaningless provision. The ground rents legislation continues to exempt only Ministers, the OPW and the Land Commission. North-South bodies are classed as State authorities for the purposes of a section that does not change that situation. The tenants of North-South bodies are entitled to buy out the fee simple because they are not and have never been persons who, but for section 4 of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978, would be entitled to acquire the fee simple of their dwellings. Section 4 of the 1978 Act never applied to them because their landlord is not a Minister, the OPW or the Land Commission.

The error is a drafting one and the courts will not correct it. It arises from the fact that the bodies have been deemed to be State authorities for the purposes of the rule that allows such authorities to permit their tenants to acquire the fee simple but have not been deemed to be State authorities for the purposes of the earlier rule that the legislation permitting tenants to enlarge their interest does not apply to State authorities in the first place. The error is described in the note circulated by the Government Chief Whip as a "possible technical defect". This seems to be less than entirely forthcoming. The section does not achieve its intention.

Why should the North-South bodies enjoy the exemption the State does in its capacity as landlord from the application of legislation allowing tenants to purchase a fee simple interest in their property? Why should the State enjoy that exemption? Why should the bodies enjoy the status of State authority for the purpose of the extended limitation period provided by section 13 of the Statute of Limitations 1957? There seems to be nothing in the agreement which this legislation is intended to implement that requires such a status to be bestowed, nor does the equivalent Northern Irish legislation, the North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999, appear to make such provision. This is all the more reason for the Attorney General, even belatedly, to consult his British counterpart. Polling day is of no direct concern to Lord Goldsmith. Policy issues are involved here that deserve greater consideration.

In the history of the State, there have been 189 Seanad resolutions requesting the President to sign a Bill into law earlier than five days after it is presented for signature. The last request was made for the ill-fated Health (Amendment) Bill 2004. Of those 189 requests, a whopping 61 — almost one third — have been moved during the eight years of this Administration's period in office.

The sole purpose served in introducing this Bill without notice and seeking to have it enacted in one day is to prevent any person paying ground rent to a North-South body from escaping the application of this corrective measure by serving a notice of intention to acquire the fee simple of his or her property. Has the Attorney General advised whether the statutory entitlement created by the 1978 Act, the right of a property owner to enlarge his or her interest in that property, is not to be characterised for constitutional purposes as itself being a property right and so protected from arbitrary interference? Has the Supreme Court judgment on the Health (Amendment) Bill been taken into account?

Our normal policy is not to oppose or table amendments to Northern Ireland related Bills. However, this Bill would seem to have a purely domestic application. It has no real implications for the peace process. We dislike ground rents and would support any mechanism for their complete abolition. They are an unnecessary and anachronistic relic of bygone times and serve only to act as an irritating clog on the otherwise complete capacity to sell, bequeath and dispose of domestic property

The 1978 Act specifically exempted the State, in its capacity as landlord, from the provisions enabling tenants from acquiring the fee simple of their property. Prior to that, as the background briefing note makes clear, it was presumed that legislation did not bind or restrict the State unless it specifically said so. This was based on the view that the modern Irish State had inherited the royal prerogatives of the former British crown. The legislation in 1994 over Mullaghmore, Howard v. Commissioners of Public Works, put an end to that belief. However, the Supreme Court allowed for the possibility of an exemption in favour of the State being set out in the legislation itself rather than applying as a matter of course by virtue of former royal status.

I remain to be convinced of the merits of exempting State authorities in the first place and also extending that exemption to include the North-South bodies. I accept, however, that this was the intention of the drafters of the 1999 British-Irish Agreement Act, even though the section in which it was expressly received no Oireachtas scrutiny. I accept also that both the bodies and their tenants must have conducted their affairs over the intervening years on the assumption in good faith that the legislation did not apply to them. We are being asked to take a great deal in good faith and, on that basis, I will not oppose the Bill. However, I stress that if any aspect of the explanations and factual outline given to us today turns out to be defective to any material extent, that would amount to a serious situation. We should not be put in the position of having to rush to judgment on significant issues with such a paucity of information and time for considered assessment.

See this speech in context