Michael Ring (Mayo, Fine Gael) | Oireachtas source

However, points of conflict with the Constitution were identified during the development of that legislation and on the advice of the Attorney General it was not possible to proceed with it. In particular, it was clear that in order to strengthen the ability of any retrospective legislation to survive a constitutional challenge, provision would have to be made for a scheme of compensation to landlords. Payment of compensation is a factor which is also relevant under the European Convention on Human Rights. The rationale for such payment arises because in certain circumstances it would render lawful a restriction on property which would otherwise be unlawful. Given the current economic circumstances, the Government was strongly of the view that the payment of compensation to a particular sector of society could simply not be justified. In any event, it should also be noted that the existence of a compensation scheme would not, in itself, have guaranteed that the proposed legislation would be proof against a constitutional challenge. It is appreciated that the decision which the Government made was, and continues to be, very disappointing for those who have campaigned for change in this area. I know it was also a particular disappointment to the Minister for Justice and Equality who devoted a substantial portion of time to attempt to address the issue. However, legislation could not be brought to the Oireachtas which the Attorney General indicated would not withstand a constitutional challenge. More generally, the major constitutional complication with any model for legislative intervention in this area is that it interferes with leasehold relationships already entered into and it is a well established principle of constitutional law that legislative restrictions which affect property rights retrospectively are prima facie unjust. Of course, it is also the case that constitutional property rights are not absolute. However, there are a number of tests which must be applied if legislation is to be constitutionally compliant and this is where matters such as proportionality and non-discrimination come into play.

While it is accepted that in introducing this Bill, Senator Feargal Quinn is motivated solely by good intentions and that he has been inspired by his own extensive experience in the retail sector, the Bill does not offer a workable solution which can actually be implemented. Compassion and a desire to help cannot change the reality of the legal constraints within which we must operate.