Marian Harkin (Sligo-Leitrim, Independent) | Oireachtas source

I welcome the Minister back to the House. It is great to see her and I wish every happiness to her and her new family. She is straight back with a bang, so let us get down to work.

An interesting aspect of the Bill is that very few of my constituents have contacted me about it specifically. While there are all the ongoing issues, I was surprised, given it will have such an impact on so many people, that more people have not contacted me about it.

The truth is that the Land and Conveyancing Law Reform Act 2009 has been hugely significant for most of those who own commonage on the Ox Mountains, share back laneway access to their homes in one of the smaller towns in my constituency or that of Deputy Pringle, or have fishing rights, a right to light, turbary rights, a right of way across a neighbour's land to access their own land, rights to water or rights to access sewer pipes through a neighbour's land. With a few exceptions, many of them were blissfully unaware of the freight train heading down the tracks straight towards them. It is not the case for everybody, but it is for anybody and everybody relying on prescriptive rights, easements or profits à prendre, which, of course, allow people to take produce from other people's land, such as in the case of turbary rights or fishing rights, as a consequence of a gentleman's or gentlewoman's agreement and where they have simply been doing what they have always done. It might well have been what their fathers and grandmothers did as well, without validating or registering those rights. All or many of those people could have ended up facing possible court cases, protracted legal wrangling, delays by banks in the granting of mortgages and delays by solicitors in sorting out wills. It was a recipe for disaster. It did not impact everybody, but it did impact many people.

What I found really astonishing was that so few people were aware of the situation. In fact, I was unaware of it until this legislation was introduced in the Seanad. We are all aware that this legislation was a recipe for disaster. It was not just a potential problem; in many cases, there is the certainty of the spectre of neighbour versus neighbour conflict. Today's work is urgent because we are repealing those parts of the 2009 Act that would have led us into a legal quagmire with extortionate costs and never-ending delays. In that context, we are doing a good thing. Claims made after 30 November will be dealt with in, basically, the same way as those made before the 2009 Act came into force. There are some changes, but nothing major.

What we are attempting to do today, therefore, is not to fix the overall issue, because many of the issues which arose pre-2009 remain. We are, however, trying to prevent the creation of further problems that would have come about because of the 2009 legislation. I refer to the circumstance surrounding access to land and rights of way. People think this issue just affects rural areas. It effects urban areas just as much, and many of my colleagues have referred to this aspect. It also does not just impact private land but public land as well. All these issues are hugely complex. I do not pretend to understand the legislation or, indeed, all the issues, but we know that some agreements in this regard go back generations and, as I have said, often with no formal documentation, but just gentleman's or gentlewoman's agreements.

In cases in which those agreements were made perhaps 100 years ago, it can now be very tricky to establish the rights concerned. People want to do the right thing, but, equally, they are concerned about ownership. People are worried that if they grant formal rights in this context that they might dilute their ownership and their ability to sell or lease their land. In that context, I am pleased to hear that the Minister is setting up a time-bound review to establish any further changes that may be desirable to the law on prescriptive easements and profits à prendre. Like many other Deputies, however, I have concerns about the rushed nature of this part of the process. There has been widespread consultation with stakeholders, and I have no doubt that much time and effort has gone into producing this draft repealing legislation. In my view, though, and that of several speakers, the assessment of this legislation by this House has been rushed. We are part of this process, even though sometimes it might seem as if we are separate from it.

Nobody disputes that this legislation is urgent. That we are setting out to eliminate flaws in the legislation from 2009, and hopefully all the flaws in that regard, demonstrates the need for proper and due process in this House. That will not guarantee success, but it moves the likelihood up a notch. The truth is that the Minister knows that our role and our job is to make our contribution to amending and shaping legislation. The Minister may or may not take on board our views on legislation, but that is our role. It is not just to rubber-stamp legislation. We will, of course, do as expected and support the passing of this Bill. We do so under pressure and in a hurry, however, and I think we all agree that is not a good way to operate.

Having said that, I support the repealing proposals in this Bill because they will make a difference to so many people, even though they do not know it. Thankfully, perhaps, many will never know it. One issue I wish to raise is my concern that the requirements for a person to establish prescriptive rights, easements or profits à prendre on State land are much more onerous than on private land. Why is this the case? The State is a juggernaut. The Minister and I know this. Those who do not know this are in for a rude awakening if they take on the State.

I read the documentation, and it states "that it is more onerous for the State than for a private owner to be aware of any easement or profits being exercised against its land – and particularly so regarding foreshore [...]". I just do not buy that. I do not want anyone to try to tell me that anything is more difficult for the State than for an ordinary individual. In addition, if even, initially, an unexpected claim is made against the State, the whole apparatus of the State, which I have described as a "juggernaut" and that is what it is, is there to defend its and, yes, our interests. Therefore, I do not support the premise that the State needs greater protection than the ordinary person. We have often heard about "competence creep" when it comes to institutions attaching greater powers to themselves. In my view, what is happening here is "possession creep" or "acquisition creep". We can call it whatever we like, because when it comes to rights being exercised on State lands, it is considerably more difficult for an individual to establish easements or rights of way. I have a real issue with this provision and the rationale provided in the documentation that I received does not satisfy me in any way.

I started by referring to the fact that surprisingly few people contacted me about this issue in recent times, although a few people did of course do so. This tells us clearly that we need an information campaign in this context. Such a campaign is not just required for the public, but also for everybody concerned in the legal profession. I refer to ensuring that those dealing with this matter and those affected by it will be aware, and fully aware, of how current or impending legislation can significantly impact their lives and the rights they exercise on property other than their own.

I support this Bill as a necessary and essential first step but we need to see evidence of ongoing work to streamline, where possible, the current legislative framework. We need to ensure that the general public are fully aware of this, insofar as we can. Not everybody will be fully aware but there needs to be a proper awareness campaign so that people have a sense of some of the implications of this or any future legislation we pass in this House.

Because this legislation has been rushed, I simply have not had time to look at the issue of seaweed rights. I know my colleagues, including Deputies Pringle and Connolly, spoke about the issue. When I was a Member of the European Parliament, I was significantly engaged with the matter. I heard Deputy Pringle say he was reasonably satisfied with some of the proposals in the legislation. I need to have another look at them. It is certainly a matter that needs to be dealt with as soon as possible. I again welcome the Minister back to the House.

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