Bernard Durkan (Kildare North, Fine Gael)

In general, I am supportive of the modernisation of legislation and, hopefully, this Bill will be helpful and modernising. Unfortunately, since I became a Member, I have frequently heard mention of modernisation of legislation or "promoting the simplification of the law and its language to make it more easily understood and accessible". If I have heard that statement once, I have heard it 100,000 times but I have never witnessed its manifestation. Any Member who has studied a legal document in recent times, notwithstanding the modernisation and simplification that has taken place, will know it is something to behold. I hope the legislation has more depth to it than previous Bills that purported to address this important issue.

Deputy Finneran raised a number of important issues. When modernising legislation, it should be improved. We should not create more pitfalls and obstacles and we should not make it easier for those who abuse systems to practise their craft in an uncontrolled and unsupervised way. The Bill is intended to update the law so that it is in accord with the changes in society, which is positive. It should address all changes in society. For example, all Members have dealt with cases involving a search going back 100 years to unravel somebody's will to ascertain whether it had been discharged or when it had been discharged and who should benefit now if it has not been discharged. I am not a legal practitioner but, notwithstanding the proposal to modernise the legislation, on countless occasions I have had to help unfortunate constituents unravel legal documents.

I hope the Bill will prevent multiple registrations of the same property. This has become alarmingly common in recent times and two or three people could have title to the same land and have a house built on it. Will it be possible under the legislation to ensure certification of clean titles, which do not have encumbrances? I do not know whether that will be achieved.

Many of us have served on local authorities. A number of local authorities in respect of planning permission in rural areas used to apply a condition whereby sterilisation of the property with the Land Registry was a burden on the title. It was an interesting practice, which should have carried the authorisation of the local authority since only local authority members have the power to do this. However, numerous such burdens were placed on properties without the authorisation of local authority members and, as a result, they are illegal and do not carry any weight. Direction was given to local authorities that this practice should cease. As the Minister of State will recall, Kildare County Council pursued that practice for a number of years without the authorisation of members. The interpretation of planning by an administrator has no relevance in this instance.

The Bill proposes to promote simplification of the conveyancing process, especially the procedures involved and the taking of security over land. I do not know whether the simplification of the procedures will be of major benefit but the simplification of the language could be of colossal benefit. Hopefully, that will be the case if the proposal is put into practice. Invariably, with the best will in the world, people say the rules will change to ensure a totally smooth and level playing pitch by simplifying the language but the first and second letter issued afterwards includes language that must be read four or five times to be understood. It could well be that people are not well versed enough in these matters but to protect the public, it is important that such language is comprehensible at all times by those of reasonable intelligence and competence and not only a chosen few.

The registration of commonages should also be evaluated under this legislation. Interesting practices were pursued in the past in this area. The theory is that a person who has an interest in common with others in a property cannot have it taken from them without their authorisation or co-operation. That is not true, as people have found out on a number of occasions when others who wanted to acquire the land decided to secure the support and goodwill of a majority of those who were deemed to be tenants in common and were able to acquire full title and ownership of the property, with obvious beneficial consequences for themselves. I hope the legislation will address such scenarios to ensure tenants in common are not disinherited by virtue of the speed and slickness of others in these circumstances.

The number of properties held by or transferred to people who have acquired their wealth through various dubious means is another issue. In other words, they use property to launder money. If a person or an entity wishes to purchase a property for which a loan is required from a financial institution, the presumption is a thorough examination of the title will ensue and it will be certified in the normal way to ensure it is clean. However, if the purchaser has sufficient resources to acquire the property without a loan, the issue of registration of title falls by the wayside. I have come across this practice in a number of cases. If this issue is not addressed by the legislation, it should be because there has never been a greater need in the history of the State to deal with the issue of purchasing property to launder money. Never in the history of the State has there been more need to deal up-front with that whole question of money laundering, and the purchase of property as houses, lands etc, in order to hide funds the source of which could not be publicly disclosed. Such an initiative would dramatically ease the difficulties the Garda may have as regards some properties that are put on the market from time to time. An alternative would be to have a requirement as regards all property transactions stipulating that the usage must be in line with the current planning permission. As regards conveyancing, I am sure our legal friends would not be too enthusiastic about embarking on such a course. However, a property might come on the market and be purchased by a person or group who do not need to get a loan. They may buy the property regardless of whether there is planning permission or if its usage had been established by virtue of what went on in it over a number of years. Five, ten, or 20 years later the property could be sold to somebody else who may well have to show whether permission exists for the use to which it is being put at that time. In the event, the property's usage must be regularised. Whatever use it had for money laundering purposes, for example, will have been washed away and things can proceed with impunity on a level playing pitch. This is an area that bears careful scrutiny. It would be foolish to allow a Bill to pass without checking that area to make absolutely certain that nobody can transfer a property that does not have a clean bill of planning health to be conveyed through the system. The only people who can buy a property without such a clean bill of planning health are those with resources they want to hide, because if one has to get a loan or mortgage there must be certification of title.

The previous speaker, Deputy Michael Finneran, made reference to the right to roam, which has become very popular in recent times. Nobody has any problem with the right to roam. The only reservation in this regard is to appreciate that if a person has the right to roam over another's property, then he or she has the right to reciprocate. That is where the fun arises and it should be applicable to all. In other words nowhere can a property exist that is absolutely excluded from such a right. Otherwise it is only done by agreement. If it is by agreement, there is no problem, but it should not be done on any other basis. Many landowners believe it should be on foot of a charge, but I am not so sure, because with that goes responsibility, liability and the potential for insurance claims and claims where there is no insurance. For those who argue there must always be insurance, sadly, that does not always apply. We have all dealt with cases where there are people who were deemed to be insured, or who had gone through the motions for such purposes, but who were not insured. We could all write books about that. If we need any inspiration in that regard we need just look at our records to find ample examples.

Another aspect of the Bill is the definition of property. It makes clear that land includes both the air space above and the substratum below the surface and layers of these, however the division is made. There is going to be great fun if we believe this is a simplification of conveyancing of land or property. We can imagine what it will be like in terms of air space above and the sub-stratum below. By the time our good friends in the legal profession have argued over all the possibilities and the potential in each of those areas, there will be great fun and entertainment for all. Those who will not be entertained will pay a price. I am somewhat worried over the description and how it is settled in the proposed legislation because I am not sure we fully appreciate the degree and extent to which variations are likely to occur in the future. I can assure the House there will be many. Perhaps the Minister of State might note that, as well as the previous issue I referred to as regards money laundering. If the proposed legislation is not sufficiently strong in that regard, this is the time to deal with it and it should be done as a matter or urgency.

The Bill retains the concept of an estate in land, which is part of the feudal system. I welcome the proposal to abolish the feudal system, although I thought it had been abolished for years. I am delighted to be reminded, in the context of this proposal, that the feudal system is about to be abolished again. Various politicians indicated many years ago that it was abolished and had set about achieving this in various ways.

I am particularly worried about e-registration. I know information technology has become very popular. It is the way forward and has enormous potential in terms of speeding access to information, records etc. It is of great benefit to the country, the economy and individuals. However, as we know from recent reports as regards other areas where the law is being blatantly broken through abuse of IT, and where international communications has leant itself to criminality, I hope there is sufficient provision in the legislation to ensure that those who want to hack into, adjust, amend or interfere in any way with somebody else's property registration, rights and entitlements will be prevented from so doing. I do not know whether that is possible. We use technology to access bank accounts, tax and social welfare affairs and a whole range of areas specific to each person. With the growth in technology, however, so-called computer hackers appear to be able to get information which was not intended for them and to access data regardless of pin numbers or anything else. This is not a good thing, so the Minister should bear in mind the security of the system and the need to ensure that in any proliferation of e-registration or e-conveyancing, there is ample protection for the individual. If there is not, we are likely to witness unprecedented growth in crime, whereby the unscrupulous might decide to acquire for themselves the substratum below or airspace above a property or properties. This could lead to complications and have serious implications for the rights of individuals to the properties concerned.

The Bill is substantial. Unusually, its explanatory memorandum is voluminous also, which makes me uneasy. In that regard I hope the debate so far has been of help to the Parliamentary Counsel. I hope the Bill will lead to improvement and make a positive difference. I hope it will not create obstacles and problems that are worse than those already encountered.

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