The Gazette 1967/71

be a charge by deed. Restrictive and positive con- venants, profits and easements are replaced by a composite concept styled a "land obligation", various classes of which can exist. Existing methods of prescription are proposed for abolition, but a new limited right to prescribe is substituted. Periodic Rents The Working Party spent a great deal of time on the consideration of how to get rid of the unnecessarily complex "pyramids of interests" caused by fee farm conveyancing. The recom mendations are that their creation should be pro hibited in future, and the draft Periodic Rents Bill contains elaborate provisions for the over reaching of existing rents on sale of the land. Conclusion » This short article contains only the barest out line of what is contained in the Report. How the Report will fare is anyone's guess. We believe it to lay down the most advanced code of common law-based land law in existence, but this does not of course preclude its indefinite pigeon-holing! We do know, however, that the Bahamas (whose own Working Party have studied our working papers) is considering similar reforms and we are also reasonably confident that the Report should, if nothing else, be found of considerable interest to those studying Irish land law, both present and projected. ADVOCATING AND ENCOURAGING by SENATOR MARY T. ROBINSON, M.A., LL.M. (Reid Professor of Constitutional Law, Trinity College, Dublin). A challenge to the constitutionality of Section 4 of the Prohibition of Forcible Entry and Occupation Bill 1970. When a Bill is introduced into the Oireachtas it is one of the conditions for its enactment into law that it should be in conformity with the Con­

stitution. Article 15, section 4, 1°, of the Con stitution states: "The Oireachtas shall not enact any law which is in any manner repugnant to this Con stitution or any provision thereof." Moreover, there is a special procedure to test the constitutionality of a Bill where this is in doubt. Under Article 26 of the Constitution the President is empowered, after consultation with the Council of State, to: "refer any Bill to which this article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof." The only Bills excluded are Money Bills, Bills to amend the Constitution itself or Bills which are urgent and have had the time for their consideration by the Seanad abridged under Article 24. (A procedure which has not been availed of). When a Bill has been referred to the Supreme Court under this article the President will not sign it pending the pronouncement of the decision of that court, which must be given within 60 days of such reference Article 26, 3, 1°, provides: "In every case in which the Supreme Courts decides that any provision of a Bill the subject of a reference to the Supreme Court under this article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill." There is, then, a duty on legislators to question a Bill or a section of a Bill which could be uncon stitutional. It is their duty to ensure that if such section has not been amended or deleted by the Government during the passage of the Bill through the Oireachtas, the President is encouraged to exer cise his discretion to consult the Council of State and refer the matter to the Supreme Court under Article 26. It is my contention that section 4 of the Pro hibition of Forcible Entry and Occupation Bill 1970 is unconstitutional as it stands. The section creates a new criminal offence where a person "encourages or advocates the commission of an offence under section 2 or 3 of this Act." The offences referred to are: firstly, the offence of forcible entry of land or a vehicle and, secondly, 210