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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
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-
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. •