Dermot Ahern (Louth, Fianna Fail)

The proposals before us are not new, rather they are a repackaged version of a Bill introduced by the Labour Party last year which was acknowledged by Government and by Fine Gael as being legally flawed.

When discussing my proposal to ban upward-only rent reviews and the Labour Party proposals, the Fine Gael spokesperson for justice, equality and law reform, acknowledged that he was "not sure whether the Minister can go any further than he already has,". He went on to agree with my assumption that, "retrospection is not an option". Another Fine Gael speaker went on to stress that "as Deputy Charles Flanagan said, however, it would appear that if an attempt was made to interfere with existing leases we would probably end up with somebody challenging this legislation. It will end up in the Supreme Court and God only knows when a decision will be taken. In the meantime new leases will be entered into and no change will have been made". This repackaged version of the old Bill, before us this evening, maintains the constitutional flaws of its predecessor.

Before turning to more practical considerations, I also wish to address two lines of argument which have also gained currency in recent days. It has been suggested that intervention in this area is possible on the basis of the justifications recited in the Financial Emergency Measures in the Public Interest Act 2009. However, the 2009 Act does not give the Legislature the freedom to interfere in an arbitrary way with property rights in general. The legal issues arising under the 2009 Act are entirely different and the same financial imperatives do not apply.

An alleged link between NAMA valuations and demands on the part of some landlords for high levels of rent increase has also been suggested. Any attempt by landlords to increase the value of their property by seeking to impose unsustainable rent increases will have no impact on the valuation placed on such property by NAMA.

Leaving aside legal considerations, the Bill is also unworkable in practical terms. I suggest that Deputies read the Bill. It raises a number of questions to which no answers are given. The trigger for its application is the formation of an opinion by Government that tenants of commercial premises cannot fairly be expected to pay rents at the rates previously prevailing, or at any increased rate. This is a very subjective test. No guidance is given as to how Government is to form its opinion and no mechanism is provided in the Bill as to the objective factors which should bolster any assessment by Government in this area.

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