Thursday, 6 April 2006
Registration of Deeds and Title Bill 2004 [Seanad]: Report Stage.
I move amendment No 1:
In page 7, line 24, after "Act" where it secondly occurs to insert "(other than sections 76 and 77)".
This is a cluster of drafting amendments relating to the collective citation and the entry into force of sections 76 and 77. Since sections 76 and 77 contain amendments to the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 it is not appropriate to include them in the collective citation contained in subsection 2.
Amendments 2 and 3 provide that sections 76 and 77 will come into effect following passage of the Bill without need for a commencement order. Both sections specify these provisions will apply to relevant transactions on and after 27 February last. Commencement orders will be required to bring the remaining sections of the Act into effect following this enactment.
I ask because this legislation envisages a new dispensation in terms of the registration of deeds and titles to make it more accessible and to make conveyancing easier. What equipment, resources and personnel recruitment will be required to implement the legislation? Has it been put in train or are we awaiting the legislation to be passed before we put in place the necessary equipment and resources and recruit the necessary personnel?
We recently passed the Garda Síochána Bill and the ombudsman commission is supposedly up and running. However, there are hitches regarding a number of matters which I do not want to go into and it does not seem we will have an effective ombudsman commission for 12 or 18 months. The Private Security Services Bill was published in 2001 and was passed in 2004. The Minister eventually appointed the authority in 2005. As we saw last week, security firms operate under a voluntary code because the authority has not drawn up a statutory code for them.
There is no sense in us passing legislation which requires a fair amount of structure to underpin it and then finding that nothing happens after the legislation is passed and it lies idle. The purpose of this Bill is to speed up and streamline the property market so we can move on deeds, titles and conveyancing, bring it into the electronic age and modernise it. I know it is not easy for the Minister of State to come here and speak on this Bill. Perhaps he will outline the steps that will be taken to ensure it is other than aspirational.
I support Deputy Costello. Approximately half of the Bills that go through this House come from the Department of Justice, Equality and Law Reform. We find that after spending hours debating Bills and amendments, the resources to implement them have not been properly thought out, and those resources are not available a long time after a Bill is passed. We constantly state the Minister would be better off implementing Bills already on the books rather than dreaming up new ideas on a constant basis without any thought as to how they will be implemented or how resources will be made available. This is another example. This Bill is important from a business and efficiency point of view. If the track record is anything to go by, all we will get is the Bill and not its implementation.
I am grateful the Deputy admitted this Bill is important, and I agree. The Minister is intent on expediting it as quickly as possible. It must return to the Seanad after Easter.
I move amendment No. 4:
In page 7, between lines 30 and 31, to insert the following:
3.—Part 3 of this Act shall cease to apply to the registration of new deeds as and from the date on which the Act of 1964 is applied by the Minister so as to require compulsory registration of title throughout this State.".
This is not unrelated to what we were discussing. I am concerned that despite the 1964 Act, we have an extremely poor level of registering title deeds. Under the 1964 legislation we are supposed to have compulsory registration throughout the country. Only three counties, namely, Laois, Carlow and Meath, have been registered. The Minister has begun the process of registration in Longford, Roscommon and Leitrim. Surely, compulsory registration is the way to achieve savings in conveyancing costs and all titles should be registered in the State.
The Minister of State mentioned establishing a property registration authority. We already have the 1964 Act in place, which makes provision for compulsory registration, but we have only registered title in three counties. God knows how long it will take to get something done under this legislation. It will be another 50 years before we have compulsory registration of title. That should be moved on. The Minister for Justice, Equality and Law Reform is the first Minister in donkey's years to move the process on at least a little, as he considers fully registering three other counties. We have 26 counties to register, with an amount of title relating to cross-Border land, which would be even more difficult to deal with in many situations. Three from 26 leaves a great deal to be desired. Since 1964, 42 years have passed.
I raise this as an indication of how backward and slow we have been in dealing with this matter and how outdated are our present land registry and registry of deeds systems. We are in a mess and do not know where the title is, its quality or the registration of the title. We transfer and interchange title at a colossal rate, and Ireland is one of the leading countries to do so as the property market goes through a boom, with the accompanying sale of land and transfer of title. We are still in the dark ages when it comes to conducting our business. We should consider compulsory registration of title for the State. The Minister of State might indicate whether there is a move to initiate and institute compulsory registration of title nationwide. If so, are extra resources being put in place, extra staff being recruited and a map drawn of how the country will achieve full registration?
This is an extremely important Bill from a business point of view. There is a high volume of property transactions with unacceptable delays in solicitor's offices and generally in the transfer of property, which hamper business. If there is not some degree of compulsion in the Bill it will go the same way as many other Bills from the Department of Justice, Equality and Law Reform. That is, it will be passed and shelved, and no resources or determination will be put into implementing its provisions.
This is the first time for many years a Minister for Justice, Equality and Law Reform has attempted to take on this issue, in a small way, but Fianna Fáil has been in power for 18 of the past 20 years and the Minister's party has been in power for ten years. It is time to start doing something rather than talking about it.
The Minister cannot accept this amendment because it is not necessary. The amendment presupposes that extended compulsory registration is the only method by which the registration of ownership of land can be extended. Any person outside a compulsory registration area can apply to have his or her land registered in the Land Registry.
The definition of deed in section 31 provides that any document, in so far as it affects registered land, cannot be registered in the register of deeds and Part 3 cannot therefore apply to any registered land.
From 1 April this year, Longford, Roscommon and Westmeath are compulsory registration areas. One of the specific objectives of the new authority is to accelerate compulsory registration throughout the country.
Longford, Roscommon, Westmeath sounds more like a song than a registration process. When did the Minister initiate that compulsory registration and when is it envisaged that it will be complete? What is the next set of counties to be affected? Will they be taken, not two by two like the animals entering Noah's Ark, but three by three ad infinitum?
This will be one of the first strategic issues with which the new authority will deal. One of its primary objectives is to accelerate the compulsory registration process. I am not in a position to pre-empt what the new authority will do.
I will be brief. This underlines what we have been saying from the outset about this legislation. We want to know when the commencement takes place and the authority is up and running, what resources and personnel will be available to it, whether timescales are envisaged and the work is mapped out. Have the resources been earmarked and obtained from the Minister for Finance to do this? It is extremely important for the health of the nation to deal efficiently with property and land sales. We do not want to see another Act sitting on the books without the proper resources, and therefore useless, and all our time here wasted.
I move amendment No. 6:
In page 8, between lines 4 and 5, to insert the following:
""Minister" means the Minister for Justice, Equality and Law Reform.".
This is a procedural amendment, one of a cluster of drafting amendments which relocate the definition of Minister from section 32(3) to section 3(1).
I move amendment No. 7:
In page 8, line 8, after "references" to insert "in it and".
This is a drafting amendment to insert three words inadvertently omitted from the text of subsection (2).
I move amendment No. 8:
In page 9, between lines 39 and 40, to insert the following:
"(g) to provide easy access to the Registry of Deeds, as set out in Part 3 of this Act, for members of the public and the legal professions alike, and to put in place such facilities, or to remain open such hours, as the Authority shall determine, for the provision of that access.".
This proposal was discussed on Committee Stage and the Minister said there was no need to include it in the legislation. While I accept that we live in changing times which places new demands on the public service, this Bill will have a significant effect on commercial and private business. Many young people are involved in property deals and any delay can be expensive. It is important that the authority is run in a customer-friendly way and is open for hours that are suitable for individuals and businesses that want to deal with it. If the Minister agrees to emphasise this to the authority or include it in its terms of reference I will withdraw the amendment.
The Minister cannot accept this amendment because it provides for operational matters rather than the authority's statutory functions. The Registry of Deeds and the Land Registry will be managed by the property registration authority which will be responsible for administrative matters such as the opening hours of offices. It is neither necessary nor appropriate to include provisions for matters such as opening hours in primary legislation.
The Minister is, however, sympathetic to the concerns underlying the amendment and expects the authority to take full advantage of information and communication technology in the development of its services especially on-line access where appropriate.
I move amendment No. 9:
In page 10, line 30, after "barrister" to insert "of at least five years' standing".
This amendment is an effort to ensure solicitors or barristers appointed to the authority have sufficient experience to ensure they do the job. While the Minister was reasonably sympathetic to the amendment on Committee Stage he ruled it out.
It is extremely important that when people are to be appointed to State boards the legislation specifies they must have the proper qualifications and experience to ensure they can do the job properly. This is particularly necessary when political patronage is involved, not that I accuse this Government of such practice but including this in the Bill would do no harm.
The Minister does not propose to accept this cluster of amendments, which seek to impose a five-year qualification period, because he is quite confident that the nominees have been nominated by the General Council of the Bar of Ireland and the council of the Law Society of Ireland. He is confident that the nominees will have the experience and expertise required to contribute to the work of the authority.
I move amendment No. 12:
In page 11, between lines 31 and 32, to insert the following:
"(d) being convicted of an offence involving fraud or dishonesty,
(e) being disqualified or restricted from being a director of any company,".
When discussing subsection (13) on Committee Stage, the Minister stated he would re-examine the grounds upon which an individual ceases to be a member of the authority. In particular, he stated he would re-examine the grounds of bankruptcy and the making of a compositional arrangement with creditors. Arising from this re-examination, it appears these two grounds are common to the various statutory bodies established over the past number of years. For this reason, the Minister does not propose to delete the grounds relating to bankruptcy and arrangements with creditors.
However, other legislation of this type includes additional grounds under which an individual shall cease to be a member, such as being convicted of an offence for fraud or dishonesty and being disqualified or restricted from being a company director. The Minister has, therefore, decided that these additional grounds should be included in the Bill, which is the purpose of this amendment.
I move amendment No. 13:
In page 11, between lines 35 and 36, to insert the following:
"(14) Without prejudice to subsection (12), a cesser under subsection (13)(a) or (c) by virtue of an order of a court shall not operate until the ordinary time for appeal has expired, or until the final determination of any appeal lodged during such time, whichever last occurs.".
This amendment is related to amendment No. 12 because the Minister agreed to re-examine some of the grounds under which an individual could be disqualified from membership of the authority. I have two concerns about his proposals. The first is that nobody should be disqualified without having access to due process so that an appeal would be completed before any disqualification could take place. This is the thrust of the amendment, which states a cesser under subsection (13)(a) or (c) by virtue of an order of a court shall not operate until the ordinary time for appeal has expired, or until the final determination of any appeal lodged during such time, whichever last occurs. This relates to when a person is asked to step down but appeals the decision. The amendment provides that the final decision will not become operational until such time as the process had been determined.
The Minister agreed to examine my second concern, which relates to some of the grounds for disqualification. An individual can be disqualified from the authority if he or she is adjudicated bankrupt. All bankruptcy means is that someone has lost his or her money. It does not mean that he or she has committed a crime or gone through a court process. Bankruptcy should not result in automatic disqualification. According to the Minister of State, the Minister has decided not to delete this section because it appeared somewhere else. I do not believe that bankruptcy is a ground for disqualification and it seems strange to include simple bankruptcy as a ground for disqualification in the Bill. Anyone could, for one reason or another, find himself or herself bankrupt. Many people find themselves in such a predicament during the course of their lifetime, depending on the nature of their employment or developments in the areas in which they have invested. Bankruptcy may not have been due to any misbehaviour on their part. It does not suggest that there has been any referral to the courts for prosecution.
Making a compositional arrangement with creditors also does not smack of criminality or any form of misbehaviour. It is the normal procedure which takes place when a bankruptcy occurs. Creditors must be dealt with and the law demands that a compositional arrangement is set up. It is quite innocent and should not be grounds for anyone to lose his or her position on a board if he or she has been appointed to it as a result of his or her talents or abilities.
Being sentenced to imprisonment on conviction on indictment and ceasing to be an ordinary resident in the State are appropriate grounds for disqualification. If a member does not reside in the State, he or she cannot do his or her job. It is unfair to use bankruptcy and the making of arrangements with creditors as grounds for disqualification or removal from the authority. The Minister should re-examine the situation.
If an individual becomes bankrupt for legitimate reasons, he or she is entitled to appeal his or her removal from the board. Why should he or she be removed from the board until his or her appeal is heard?
As I stated in my reply to amendment No. 12, the Minister does not intend to amend this section, which is a standard provision in all legislation. I have some sympathy with Deputy Costello's position but bankruptcy is likely to be very rare among the people who will be appointed members.
The Minister does not believe that amendment No. 13 is necessary as it is implicit that in such circumstances, a person will cease to become a member of the authority only after all proceedings have been completed and a final determination has been made.
It is not sufficient to simply say that this is a standard provision. What does this mean? There could be standard provisions in legislation which new legislation will update. The fact that a standard provision has existed in previous legislation does not mean it has an aura of absolute correctness. Such provision can be examined as much as any other provision. If it is not a proper provision, it should be deleted. I do not doubt that if someone becomes bankrupt, makes a compositional arrangement with creditors and is removed from the authority by the Minister, he or she will successfully appeal the decision. Why include this unnecessary bureaucracy in this legislation? Legislation should be simple, straightforward and relevant. A provision should not be included simply because it is standard practice in old legislation. Given that this Bill might return to the Seanad, the best course of action is to delete these two sections.
I understand this is a standard provision which has been included in some reasonably recent legislation. This provision has been included in legislation for a very long time for a good reason. The Bill lists these standard provisions as reasons for people to step down as members of the authority. Deputy Costello could probably raise this issue in another forum.
The motto of the Progressive Democrats was to be radical or redundant and to move out into new ground and avoid standard provisions. I still believe the only argument for retaining this provision is that it is a standard provision. It has no merit in its own right.
I move amendment No. 14:
In page 13, after line 48, to insert the following:
"(2) The Freedom of Information Act 1997 shall apply to the Authority.".
This matter is an old hobby horse of mine. We introduced the Freedom of Information Act so there would be access to important matters that seem to be shrouded in mystery within the bowels of the State. All legislation should be subject to the Freedom of Information Act unless specifically excluded rather than being excluded and listed further down the line as legislation that becomes subject to the Act. We are putting the cart before the horse, as the purpose of the Act is accountability and transparency.
Let us pass legislation that we can stand over and allow access to decisions made under it. We are shrouding in secrecy decisions made in respect of State bodies and legislative provisions as much as we can. There is no reason not to specify that the authority should be subject to the Freedom of Information Act. There may be matters that must be addressed with a level of discretion but, in general terms, the proceedings of the authority should be subject to freedom of information legislation. We should not need to wait until the future when somebody may or may not get around to including this Bill, when enacted, on the list of legislative provisions open to freedom of information questions.
I support Deputy Costello's amendment. In recent weeks, this matter arose on Committee Stage of another Bill. The Minister of State spoke about standard provisions in a Bill — this should be a standard provision in every Bill and for every authority that is established. A number of exceptions could be discussed but the applicability of the Freedom of Information Act 1997 to all authorities and legislation should be standard practice.
There is a growing feeling that since the restrictions were placed on the Freedom of Information Act, activities have been conducted in such a way as to prevent people finding information on them. It is a significant issue for the general public, as the Act provides security for people in that they can discover exactly what is happening within a particular service or Department. I do not see why this essential provision should not be included in the Bill.
The Minister agreed on Committee Stage that the property registration authority should, in principle, be subject to the Freedom of Information Act 1997 in the same manner as the Land Registry and Registry of Deeds. However, instead of amending the primary legislation as proposed in the amendment, it is intended to include the authority in a set of regulations currently being drawn up by the Department of Finance that will extend the application of the 1997 Act.
That is something. We have moved further down the road and I welcome the Minister's progress. Section 15, which I will try to amend, states: "Unless otherwise provided for by law, a person shall not, without the consent of the Authority, disclose any confidential information obtained while performing, or as a result of having performed, duties as a member of the Authority or advisory committee or as a consultant or an adviser appointed by the Authority". This is a gagging mechanism and I am concerned that previously established parameters in the Bill are restrictive in terms of freedom of information. It will be difficult for any worthwhile question under the Freedom of Information Act to elicit useful information because of the confidentiality clause contained in this section. It puts the authority on notice that there should be no disclosure of information in so far as is possible without the authority of the body.
There is no sign of whistleblower legislation in section 15, which tells authority members to keep quiet and, if they open their mouths, they could be in trouble. I am not happy with this type of gagging legislation. It is not standard practice in legislation. Wherever applicable, State bodies should be subject to the Freedom of Information Act's provisions and disclosures should be permitted.
In my responsibility as Minister of State at the Department of Finance, I extend the applications of the Freedom of Information Act annually, including to new agencies, authorities or whatever. Deputy Costello referred to putting the cart before the horse, but that does not apply in this instance. The Government is committed to extending the Freedom of Information Act to the RSA as soon as it is established. Confidentiality is a significant issue, as are sensitivities in respect of freedom of information and, in particular, the ownership of land. Regarding the provisions to which the Deputy referred, they are intended to protect confidentiality in the above areas.
Irrespective of the section, I accept the Minister of State's point on confidentiality in terms of important and sensitive information relating to titles and so on, but the thrust of my amendment concerns the broader issues of transparency, accountability and freedom of information. Most people would agree that the opposite to the Minister's comments is the case. There is much less freedom of information now than before the Government entered office. Significant costs and restrictions have been placed on ordinary citizens accessing information that should be readily available.
I move amendment No. 18:
In page 22, to delete lines 21 to 23 and substitute the following:
"(2) Subsection (1) does not affect—
(a) any judgment or order given or made before the commencement of this section in any proceedings, including appeal proceedings, or
(b) any proceedings pending at such commencement, in relation to the execution of a deed.".
The Minister agreed on Committee Stage to examine the need for a provision on the lines proposed by Deputy Costello. Having done so, the Minister is satisfied that such a provision is warranted and, accordingly, has tabled this amendment, which has the same effect as the amendment proposed by the Deputy.
I move amendment No. 22:
In page 34, to delete lines 35 to 41 and substitute the following:
"(a) sections 28, 32(2), 32(3), 51(3), 51(4), 62(5) and 64(3) of that Act are repealed, and
(b) section 105 (certificates) thereof—
(i) applies only in relation to land certificates and certificates of charge issued before the commencement of this subsection and not already cancelled, and
(ii) ceases to have effect 3 years after the commencement of subsection (2).".
This amendment covers two matters. First, the presentation of subsections (1) and (2) has been adjusted to improve comprehension of the section. Second, the Minister proposed to amend the provision relating to section 105 of the Registration of Title Act 1964 following discussions with the Department of Finance and the Land Registry. The amendment provides that section 105 will cease to have effect after the expiration of the three year period referred to in section 2. Not to make this change would mean the land certificate would continue to be required for any future dealing with the land in question, despite the fact the land certificate itself would no longer have any force or effect.
I move amendment No. 26:
In page 38, lines 2 and 3, to delete all words from and including "acquires" in line 2 down to and including "land" in line 3 and substitute the following:
"acquires the fee simple in land under the Act of 1967 or Part III of this Act".
This is essentially a drafting amendment which is intended to clarify the meaning and presentation of this provision.
I move amendment No. 27:
In page 38, after line 18, to insert the following:
"78.—(1) Part 1 of the First Schedule to the Ombudsman Act 1980 is amended by the insertion of "Property Registration Authority" after "Registry of Deeds".
(2) Part 1 of Schedule 1 to the Ombudsman for Children Act 2002 is amended by the insertion of "Property Registration Authority" after "National Museum of Ireland".
This new section is being introduced to ensure the property registration authority is subject to both the Ombudsman Act 1980 and the Ombudsman for Children Act 2002, in the same manner as the Land Registry and the Registry of Deeds, which are already included in Schedules to both Acts.