Conor Lenihan (Dublin South West, Fianna Fail)

In effect, this amendment is proposing that a change to the law affecting business tenancies be made retrospective. The proposed change to the Landlord and Tenant (Amendment) Act 1980 contained in the Bill amends sections 17 and 85 of that Act. Section 17 deals with restrictions on right to new tenancy and section 85 covers void contracts. The purpose of these amendments is to enable parties to a business tenancy to contract out of the provisions of Part II of the 1980 Act which covers the right to a new tenancy, provided that the tenant or would-be tenant has received independent legal advice. The provision draws upon section 4 of the Landlord and Tenant (Amendment) Act 1994 and section 191 of the Residential Tenancies Act 2004.

Senator Regan will be interested to know that unlike the provision in the 1994 Act, the ability to contract out is not confined to cases where the renunciation has been completed prior to the commencement of the tenancy. This is a deliberate policy choice since it is intended to facilitate existing business tenants who, in the absence of an ability to renounce their statutory right to a 20-year tenancy, might face eviction as the period of five years, after which the right accrues, draws to a close.

The question of further amending the Landlord and Tenant Act to provide for the opt-out to be retrospective to a specific date is, I take it, an effort to accommodate some whose tenancies are governed by existing legislative provisions but who would like, in effect, to avail of the new provisions in this Bill before those provisions become law. By definition, the existing provisions would have been in force when the original tenancies were entered into; when there was no proposal to change the law in the manner now contained in this Bill; and when there would have been no reasonable expectation that such a change would come about. In other words, tenants in such leases are no worse off now than they were when they entered open-eyed into their tenancy agreements.

A difficulty with this amendment is the somewhat arbitrary nature of the date from which the renunciation would be given retrospective force. Accepting the amendment would privilege some categories of tenant whose tenancies expire on or after the date in question while discriminating against all those whose tenancies expired before that date and who, in consequence, have had to make alternative arrangements in respect of their business activity.

There are good reasons retrospective legislation is resorted to only on very rare occasions. When it is necessary, it is desirable that the rationale be very clear, that adequate notice be given to all parties and that the maximum effort be made to avoid invidious discrimination. In the current case, the focus is on commercial arrangements where the need for legal certainty is especially acute. In my view, that certainty is best served by adhering to the well-established rule that a provision will generally apply only from the date of its commencement. While I understand the motivation underlying the amendment, I cannot accept it.