Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister of State to the House. I commend Senator Feargal Quinn on introducing the Bill, which seeks to tackle a real and pressing issue for many people, especially those working in retail and running retail businesses. The issue was raised with many of us in the lifetime of the previous Government as well as since the 2011 election. The issue of upward-only rent reviews was dealt with, albeit in a very limited fashion, by the previous Fianna Fáil-led Government under the Land And Conveyancing Law Reform Act 2009, section 132 of which deals with upward-only rent reviews in commercial leases on a prospective basis. In 2009 the Government only dealt with leases on a prospective basis and therein lies the rub and the difficulty.

Senator Quinn's Bill deals with the pressing issue of upward-only rent review clauses in leases and seeks to change the terms of these retrospectively. As other speakers on this side have said, there is a difficult constitutional question about whether one can do that.

I have often been critical of the elevated protection of property rights in the Constitution and that is the problem. I could point to any number of examples. A colleague of mine, Conor Power, wrote about a previous Labour Party Government's attempt to bring in progressive legislation that fell foul of the Constitution on the grounds of property rights. I am referring to the first Employment Equality Bill, which was brought in by the rainbow coalition or perhaps even the Fianna Fáil Labour Party Government. It fell foul of the Constitution in the Supreme Court. As Conor Power put it in an excellent academic commentary, equality rights, particularly the equality rights of employees with disabilities, were trumped by private property rights in the Constitution. This arose with the first version of the Employment Equality Bill. It was subsequently enacted with a different provision on disability. The first provision that fell foul of the Constitution placed, in the Supreme Court's view, an unduly onerous obligation on employers to make reasonable accommodation for employees with disabilities. The court held that there was no distinction between classes of employer and that a small employer would have the same obligation and that this could encroach on the private property rights of employers. That is my summary of the judgment. Effectively, the court held that private property rights in the Constitution prevailed over the rights to equality in the workplace of persons with disabilities. A different and less strong version of that provision was subsequently included in the Employment Equality Bill that was enacted in 1998.

I have written critically about the Supreme Court's treatment of a previous Labour Party attempt to alter property rights through the Matrimonial Home Bill, struck down by the Supreme Court in 1993. That Bill would have given equal rights in the family home to a non-owning spouse. That was to deal with an issue at the time whereby typically the husband was the sole owner of a family property and could sell it or mortgage it without the consent or knowledge of the wife. There were various issues about that.