670 / 736
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,
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