The Gazette 1982

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. 76 No. 4 May 1982 Legislate in Haste. .. N OW that the President has signed the Housing (Private Rented Dwellings) Bill 1982 and a

fortunately for the administration the Senate, sum- moned from its re-election campaigning, actually pas- sed a significant amendment to a vital Section of the Bill, thus necessitating the Bill's return to the Senate which rapidly rejected the amendment. On its return to the Senate the Minister chided the Senators for daring to amend the Bill largely on the grounds that by so doing it had delayed the progress of the legislation. His comments provide a useful insight into the view which Ministers have of the functions of the Upper House. It is doubly unfortunate that this unsatisfactory series of events related to legislation which directly concerns the homes of so many citizens since it was in relation to the Family Home Protection Act in 1976 that the legislature also failed in its duty to critically examine legislation during its passage. That Act, which was enacted with remarkable speed has led to more litigation within a very short period than any other Act that comes to mind. As drafted it appears as a simplistic version of the Homestead Legislation of some of the Canadian provinces but without the pro- cedures for administering the Act which are enshrined in the Canadian Legislation. If these procedures had been included the lot of house buyers and sellers and their solicitors would have been much eased during the intervening six years. Our legislative process is clearly not working satis- factorily. Detailed provisions of proposed Bills are kept secret so that the advice and comment of those who may be professionally involved with the applica- tion ofthe law is not available to the initiators. There is a reluctance to advise a Minister to accept technical amendments to a Bill once it has been introduced, perhaps because of the imagined loss of face involved in accepting such amendments. There are no Standing Committees of the Houses of the Oireachtas dealing with proposed legislation and neither are bills regular- ly referred to specialist committees of the Houses for consideration oftheir technical aspects. Other Parlia- mentary democracies seem to find such procedures necessary for their proper operation. The recent history oflegislative incompetence in Ireland suggests strongly that we need to adopt such procedures also. •

Ministerial Order bringing it into force cannot long be delayed, it may be appropriate to comment on the performance of those charged with the preparation r^nd enactment of legislation in respect of this urgently needed legislation. It cannot be said that either the initiators or the legislators deserve very much credit. The Supreme Court's decision was given on the 29th June 1981 and the Rent Restrictions (Temporary Provisions) Act 1981, a purely holding measure was introduced and passed with commendable speed. It was not however until the 2nd December 1981 that the ill-fated Hous- ing(P.R.D.)Bill 1981 was introduced. Before this Bill was available to the public through the Stationery Office, Dail Eireann had concluded its second stage Debate, in which only comment on the principles of the legislation is permitted. The Committee Stage, when a Bill is examined section by section, never took place because the Government applied the guillotine procedure so the Bill went straight to the Senate without any consideration of its detailed provisions. The Senate, to its credit, did its duty as a second ^hamb er and in its four hour Committee Stage Debate attempted to give serious attention to the measure. A number of Senators were, rightly as it turned out, unhappy about the provisions of Section 9 of the Bill but the Minister for State in charge ofthe Bill appeared to adopt the position that the Bill should be enacted and the Supreme Court could then advise on its con- stitutionality. This is of course a wrong headed approach. Legislation should be drafted with at least one eye on the Constitution. It did not come as any great surprise to those who had studied thejudgment in the Rent Restrictions case that the Supreme Court struck down Section 9 of the Housing (P.R.D.) Bill 1981 and it should not have been seriously offered to the Oireachtas nor passed by them. The Housing (P.R.D.) Bill 1982 fared a bit better at the hands of the legislators in that there was aCommittee Stage debate in the Dail. True it contained an outburst by one Deputy whose unworthy criticism of the Supreme Court as showing a bias in favour of landlords showed that he hadn't read the judgment in the Rent Restric- tions case; nonetheless there was a full Debate. Un-