I move amendment No. 1:

In page 4, between lines 27 and 28, to insert the following:

"(2) (a) The Government may from time to time by order extend the emergency period, either generally or with reference to any particular purpose or provision, for such period as it considers appropriate if it is satisfied that, having regard to the threat

to public health presented by Covid-19 and the need to mitigate the economic effects arising from that disease, the making of such order is in the public interest.

(b) Every order under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".

I listened to what the Minister of State had to say in his reply to Second Stage. I am not going to get excited by it but I would suggest that he did not hear what we were proposing or anything from me. I do not like to get too personal so I will not do so and will talk through the Chair. This is a process. There are five Stages in a Bill. If the Minister of State has plenty of time and wants to hear plenty, I am happy to stand here and talk for a long time. I am standing in solidarity with other Senators and I support what they have done. This is my entitlement and right. For some reason, the Minister of State has difficulty in understanding my proposal. He singled me out by name and said he had a difficulty. He did not hear what I proposed. On this side of the House, we can work together. I am of the view that these amendments are valid and should be put. I put it to the Minister of State, who did not answer me, that he has made a decision that all these 40 amendments will not be supported. That sends out a clear message about the Government to the effect that it is not prepared to give any consideration in terms of seeing anyone else's side.

I shared my experience of being a member of the Joint Committee on Housing, Planning, Community and Local Government for four and a half years and the bellyaching I heard from politicians on many sides about what they were going to do for tenants. Remember that Fine Gael has been in office for nine years. The Minister of State tells me that he does not understand or hear what I am trying to say. I am saying clearly, and the record of the House will show this, that I support the amendments. It might be helpful for us all - I am conscious of time - if the Minister of State indicated that it is his decision not to support them. We can spend all of the time here, someone can then get up and guillotine the thing and the newspapers tomorrow will write about another saga in Parliament regarding how people are being shut up and prevented from engaging in the political process. Is it the case that the Minister of State will not accept this amendment or the other 39? If that is the case, then so be it. I am a realist and will go home but if it is not the case and there is any chance the Minister of State might accept one amendment, I will stay and debate matters.

Regardless of whether or the Minister of State will accept the amendments, some of them will be put to a vote because they should be. However, it is disingenuous to suggest that it is simply the decision of this House because the schedule of the Oireachtas is set by the Government and the Government has chosen that the Dáil rose before the Seanad debated this legislation. This is a very important aspect. I urge the Minister of State to feed information back to his fellow Ministers. There are potentially 11 Stages to each item of legislation. There are five Stages in each House and then there is the Stage whereby if changes are made, the relevant Bill goes back to the initiating House. That needs to be planned for in legislation. If we are brought legislation in a situation whereby if we amended it, there is no Dáil to respond to our changes, that is appropriate or proper respect for due process. This issue must be addressed.

I know that we are keen to move on to section 4 in which there are fundamental issues we must address but before we do, I will say that there are unforeseen consequences in section 3. We have seen examples of unforeseen consequences when legislation is rushed. That is why it is unfortunate that the Minister of State is not leaving himself the opportunity to respond to an issue if one is identified. I would like the Minister of State to indicate whether there will be new residential tenancies legislation coming through in the autumn. Will there be an opportunity for us to engage on the substantial issues that are being raised here and on which we have been told we cannot engage because this is emergency legislation? When will we have the opportunity for an holistic discussion and real thinking about doing housing in a different way? That is what people on all sides of the House have been calling for.

I want to clarify a few things. I named every Senator who spoke and responded to them.

The Minister of State did not do that.

Did I not name Senator Keogan?

The Minister of State did not name me.

I apologise.

The Minister of State without interruption, please.

It was not intentional if I did not respond to Senator Keogan. I have written down the names of everyone who contributed so, if I omitted the Senator, I did so in error. I tried to get back to every single person so I did not pick out everyone individually. I agreed with some Senators and not others. The point I made to Senator Boyhan was that he was trying to categorise me when he asked how politicians are landlords. I responded to the Senator because I will not tolerate that. I am very clear about that. I know my background and where I came from. I work very hard in this job to deliver for the most vulnerable and ensure that we strike a balance here.

I want to be clear that I have no issue with discussing all of these amendments and that is what I am here to do. Anyone with proposals that are of merit, as some of these amendments are, will be listened to and those amendments can be explored with the Oireachtas Joint Committee on Housing, Planning and Local Government. We must assess the pathway that the pandemic takes when considering legislation. We may need to come back and do primary legislation if other challenges emerge. We will do that and the Government will not be found wanting in that regard. Let there be no doubt that I am happy to debate these issues and to further engage through the committee. I will bring any concerns that are raised by Senators back to the Minister and the Government.

Does Senator Keogan wish to come in?

I thank the Leas-Chathaoirleach for allowing me in.

The Senator can come in as often as she likes. She should not worry about that.

I thank the Leas-Chathaoirleach. I only raised the issue about the declaration and the communication around that for people who do not have the ability to understand the forms on which the Government is asking them to declare. I asked about how the Government was going to improve its communication around that and the Minister of State did not answer.

I will answer.

It would give me some comfort if the Minister of State could answer that because I need to give similar comfort to the people I represent. The 949 councillors around the country who are required to fill in these forms and assist people in making declarations also need to know what the Government is going to do for them and how this message will be communicated to the most vulnerable people in our country, those who cannot read and write, and the 500,000 people to whom this is going to apply. I would appreciate it if the Minister of State could give me some comfort.

The matter is also dealt with under amendment No. 2, if the Senator wants to come back in.

I understand that and thank the Leas-Chathaoirleach.

Does the Minister of State want to come back on that?

I absolutely do. There will be a multimedia campaign embarked upon by the Residential Tenancies Board, RTB. It is obviously in all our interests that tenants can understand the process, particularly the most vulnerable who have challenges with regard to reading and writing and have had difficulty understanding forms in the past. This form will be simple and help will be available. The RTB will also point to information in that regard.

I agree with Senator Keogan and welcome the fact that the Minister of State has agreed that this information will be provided in plain English because that will be very important. As I have already mentioned, it should also be provided in a number of other languages, particularly of Polish, Lithuanian and so on, because that would be beneficial.

I will make it clear to Senator Boyhan that I am neither landlord nor tenant. I share the Minister of State's concern that a piety emerges when people start to talk in defence of landlords. I was not aware of the statistics that the Minister of State outlined and it is interesting to note that 86% of landlords own only one or two properties and 70% own only one property. As others have said, many landlords are in that position accidentally. This is about the balancing of rights.

I agree with what the Senator said about the declaration of interests on which Members clearly outline if they are a landlord or a tenant. I think most people are good landlords and good tenants. I would sincerely hope that situations in which Deputies refuse to pay their rent and run up a rent bill of €12,000 with a charity, stopping others from being able to rent, would also be publicised. Situations involving bad tenants also need to be addressed. Many of us know that a small minority of tenants in local authority houses do not pay their rent and leave those houses in appalling states. There is also a small minority of tenants in private rented accommodation who often leave the landlord with a very large bill because of the state in which they leave the rental house.

There is another side to that. I entirely accept that there are dishonourable landlords who will use any excuse to try and increase the rent and will not provide the necessary services to tenants. Like the Minister of State, I deal with queries from both landlords and tenants about the challenges that they face. The crucial question to ask about this legislation is are we striking the right balance in an emergency situation. That was the basis on which I made my decision about the legislation. I share Senator Higgins's concerns that the Dáil decided to go into recess before the Seanad passed this Bill and that rushing of legislation is a cause for concern.

I am happy, however, that the Minister of State has indicated there may be a need in the autumn to introduce primary legislation. I welcome that and if there are concerns this at least will provide safeguards until January. If concerns materialise over the summer, I hope we would have a lot longer to consider those in the autumn.

With regard to the concerns expressed around the rushing of this legislation, I agree with the Senators and, in fairness, I believe the Minister of State does too. Nobody wants to have a situation where, as we have, every piece of legislation that has come before the Twenty-sixth Seanad has gone through all Stages in a very short period of time. In every instance there has been a logical and necessary basis for that, but nobody thinks it is desirable. I have discussed this with many of the Ministers who have come before the House and I am pleased to say that many of them have, as the Minister of State, Deputy Burke has today, acknowledged the fact that there is room when we resume in September to take up issues that have arisen in the course of debates here and address them in a more considered and perhaps slower way than we have at the moment. I agree with the Senators' comments that it is undesirable to rush legislation through as we are. I say this while recognising the necessity for some of the provisions here, including the fact that we will not sit again until September and in the context of the current crisis we are going through.

I also want to address, much in the way that Senator Byrne did, the comments of Senator Boyhan, a man who was my ward colleague in the local authority of Dún Laoghaire-Rathdown, a man I know very well and for whom I have great respect. I do have difficulties, however, with the question he asked on Second Stage and which has been addressed by other speakers, on who landlords are. It is a matter of public record.

I remind Senator Ward that we are discussing section 3.

Yes, but the issue is raised in the context of this discussion.

I feel we are going around the houses. I know we are all learning our way but I do not want this to develop into a Second Stage speech. I am not specifically referring to the Senator now as I am talking in general to all Senators. We are on section 3, amendment No. 1, just so the Senator knows that.

If the Leas-Chathaoirleach is telling me I should not discuss that then I will leave it. There is no need-----

I just do not want it to develop into an around the houses discussion.

It is okay. I can leave it. The issue has been addressed by other speakers. I will leave it at that. Go raibh maith agat.

I moved amendment No. 1 and did not speak to it for a specific reason. The specific reason was that Senators Boylan, Ruane, Higgins and I met for an hour before this debate to go through the amendments. For the purposes of time we discussed grouping issues and putting some amendments through a voice vote and others to a division. We did this work to try to lessen the impact on other Members of the House. As I sit here there is a back and forth with Senators getting in and making massive speeches on an amendment I have moved. I ask that Senators please not do that. If Senators are going to do this it will have been a waste of our hour before we came into the Chamber.

I will try to facilitate that.

I hear the concerns. As I said earlier, there is no issue around going through the amendments. Looking down the list there are amendments we went through in absolute detail that have huge merit in terms of receivership and indefinite duration that we are absolutely prepared to look at in the autumn. There is no doubt on that, but I ask Senators to bear in mind the urgency attached to this legislation and the 1 August date. We really need to get these protections in quickly.

Amendments Nos. 2, 3 and 11 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 5, lines 8 to 10, to delete all words from and including “serves” in line 8 down to and including line 10 and substitute “in the opinion of the Board—”.

I was not going to speak on this amendment because we had that agreement, but I will make a very quick point on the issue of balance. I have heard "balance" more times today, and it is a good job we are not playing a drinking game when it comes to the word "balance". There is no balance in this section because the Government is asking renters to sign declarations that, if they get wrong, could possibly lead to them being declared criminals, while the same is not being done with regard to landlords. Amendment No. 2 is asking that the Residential Tenancies Board, RTB, assess the information it has to hand and to make the decision that the tenant is giving the information in good faith. If we trust the RTB to adjudicate on disputes why are we not allowing it to adjudicate on a person's circumstances? This is the reason there is no balance. Amendment No. 3 is about the word "significant" and there being no legal definition of "significant" risk. How will one assess the people who are eligible under these emergency protections if one does not have a legal definition of significant risk?

I support the amendment. We may not press all of these amendments to a vote but with the amendments being grouped in section 4 there will be just two opportunities to speak to the amendments in this section. I put it to the Minister of State that there are a lot of problems with section 4. If the Minister of State cannot accept our amendments, and if he recognises the merit in our arguments, I urge him to consider not commencing section 4. I will be very frank. I believe it opens up significant concerns and fears. I spoke on Second Stage about the fear people might have when they have to make a self declaration. I was concerned about whether people who are cocooning or people of different ages are covered. I went again to see who is covered and who is a relevant person. The Government is asking ordinary citizens across Ireland to make this declaration - and I will discuss the matter of an offence in the next section, which is its own problem - but we must consider the literacy issues as highlighted by Senator Keogan, and that more than half the population have digital literacy issues. How will such a person decide if he or she is a relevant person?

I apologise to my colleagues and I will not give long speeches on other amendments, but this is important. As a legislator who has been legislating for years and is familiar with reading legislation, I was trying to determine who is a relevant person. The section raises the question of whether a relevant person is on temporary wage subsidy, a supplementary welfare allowance, or any other payment from public moneys for the purposes of alleviating financial hardship. Is this a jobseeker's payment or is it for alleviating financial hardship? Perhaps clarity is needed. Will the new jobseeker's payment, due to come into effect in the next few days, definitely be covered in this section? It is currently not named. Again, a Government amendment to this effect might have been useful if it was intended. Instead it says "any other payment". Is the working family payment covered here? If a person receives the working family payment is he or she a relevant person in this regard? Perhaps a family had been on very low wages but is now reliant on the working family payment. Is this enough to qualify a person as a relevant person for this legislation?

Let us consider the other criteria a person might need to be a relevant person. Section 4 says the relevant person will be a person "to whom subsection (7) (inserted by section 5 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020) of section 40 of the Act of 2005 applies". Let us check back into definitions and interpretation where many lines in six different Bills are mentioned, and we find that "the Act of 2005" means the Social Welfare Consolidation Act 2005. We then go to find subsection (7) of that Act. Subsection (7), as inserted by the new legislation relates to those in local authority housing, including Traveller accommodation. Great. Now we know that people who live in local authority housing might not be evicted under this proposed legislation. That was a little bit of work.

Let us now look to see about the other category of relevant persons being "belonging to a category prescribed under subsection (8) of the said section 40". Let us roll back to see what section 40 is. That would be section 40 of "the Act of 2005", which is the Social Welfare Consolidation Act 2005. Now we must look for the Social Welfare Consolidation Act 2005, but it is not updated on the website. I had my assistant go to work on it but we could not find things in the paper. We contacted the Bills Office. We looked in the Irish Statute Book and eventually after 40 minute's work we discovered that the Social Welfare (Miscellaneous Provisions) Act 2010, which is not mentioned anywhere in this legislation, actually had amended that section. We had been told there was no section 8 in the Social Welfare Consolidation Act 2005 as published.

They inserted a new subsection (8) into section 6 of the 2010 Act and it states: "Without prejudice to subsection (7), the Minister might make regulations ... in relation to persons or classes of persons who may certify that an insured person ... [is] incapable of work." We have done all that work and we have got to a part at the end that tells us there may be some regulations the Minister has made in terms of who is qualified but that is subsection (8) as it was in the 2010 Act. The fact that a new section 7 was inserted in the emergency provisions legislation might mean that what was section 6(8) in the 2010 Act has now become subsection (8).

Section 6(7) of the 2010 Act refers to a person who has a document from a registered medical practitioner categorising that he or she is incapable of work and which he or she has provided to an officer of the Minister. Is it what was previously subsection (7) of section 6 of the 2010 Act, which may, since the emergency legislation, have become subsection (8) of section 40 of the Social Welfare Consolidation Act 2005, which states that the person has to have a certificate from a medical practitioner or is it the new section 8 as inserted in the 2010 Act, which is now a subsection of section 40 of the Social Welfare Consolidation Act 2005, which states that it is a person who the person has made regulations to say that they are incapable of work? I am a little unclear about that, and I am a legislator who has been working in the area of legislation for years. I do not know if the Minister of State can categorically tell me which of those it is.

I will respond at the-----

A legitimate point has been raised

I look forward to his response when we are finished. Let us be clear. That is what we are asking citizens to figure out and if they do it wrong, they will be afraid - we will come to the question of the sanction - that they will make a wrong declaration. I appreciate that the Minister of State has indicated that plain English will be used and that the RTB will be involved. However, it would have been much more sensible if he accepted the points made and the amendment, which states that we should let the RTB, which is expert in this, categorise it and not put a new scary document in front of people for them to sign that they are not sure of and who are already scared because of Covid-19. This has not been thought through. I urge him, if it is possible to do so, to commence other parts of this Bill and not to push the declaration aspect. I ask him to not commence elements of this section. If that cannot be done, the senior Minister needs to assign staff resources to deal with this, not just have an online campaign. Will extra staff be hired? Will there be staff in county council foyers who people can meet and who will help them complete these forms and declarations, particularly as people will be afraid?

Senator Higgins raises a legitimate issue that needs to be addressed. However, I propose to speak about it in respect of later amendments. Amendment No. 5 is not grouped with these amendments. The point she raises is legitimate, which is the reason I was very pleased to hear the Minister of State indicate that there would be a public information campaign. I do not know if huge numbers of staff are required but it is important to distinguish between the point Senator Higgins has just made and the fact that we are asking citizens to look at legislation and understand what it means. Unfortunately, that is not the practice and it is an issue I raised in respect of other legislation in this House already. We cannot expect citizens to read this legislation, the regulations that go with it and the legislation that it amends. I am a practising barrister and there are times when I have to go back, as Senator Higgins has just done, through reams of different items of legislation that have been amended. I find that very difficult to do and it is easy to miss something. For that reason, we do not expect citizens to do it. That is why there are officials in Departments and agencies and lawyers and other people whose job it is to do that and to put the matter into plain language. Unfortunately, because of the specificity required for legislation, we cannot write it in the plain language we might like to write it in although that does not mean that there is not room in legislation - in fact in all the Bills we have seen already - to make the language clearer. I believe there is room but I do not believe that the test we apply to whether this legislation works, or is scary for that matter, is whether an ordinary citizen can read it because if that were the test, I do not believe we would ever pass it. Reference has been made rightly to ordinary citizens who might have literacy difficulties, linguistic difficulties if English is not their first language or whatever it might be. There are many reasons they would not be able to interpret this legislation in the way we would like but that cannot be the test. The Senator makes a valid and fair point. It is something we should always have in mind when we are passing legislation. However, just because it is complicated does not mean that it does not achieve what it is meant to achieve or that it is not valid in that regard.

On the issues raised, I sense the passion and real concern Senator Higgins has about these two issues. I am new to dealing with legislation. I have been dealing with people all my life. In the constituency in which I live, 77% of the population identify as non-Irish and there is a very high level of disability. Historically, we had very high levels of illiteracy also. The housing crisis is most acute in my constituency and every day I would help people who are struggling either with the threat of homelessness or are in homelessness. When I read this legislation, I identify a relevant person as being anybody whose income has been negatively impacted upon and who is struggling to pay rent. It would be welcome if the Minister of State could confirm that that is what the term "relevant person" means.

In terms of the issue of the declaration, my reading of the legislation is that it will be specifically defined by the RTB because it will be charged with the administration of this process but I heard the Minister of State say that the declaration can be a handwritten letter or an email. It is critical, however, that it identifies the person, identifies clearly and honestly their circumstances and then can be used to prevent that person from becoming homeless. It can be used by the State bodies to support that person to avoid a rent increase or eviction. That is my understanding of it. The only people who should be worried about being guilty of an offence are people whose incomes are not negatively impacted or may have increased but who are trying to claim these protections. I refer to people in receipt of public housing like Deputies refusing to pay their rent for four years. I would appreciate it if the Minister of State would clarify those two points, but my understanding is that it will be in plain English and that the citizens information bureaux, the RTB and all of the wonderful local authority councillors who deal with tenants every day will be there to support tenants at risk of becoming homeless or of a rent increase.

On the effect of amendment No. 2, the RTB has to have a mechanism and a process to identify people who are in rent arrears and it has to be brought to its attention. That is the key point. As I said, and to be very clear, if someone is in rent arrears, they are suffering because of the Covid-19 pandemic and their income is reduced they can make this case, self-declare and the RTB will adjudicate on it. We will put together a multimedia campaign to ensure that everyone is informed, that the forms will be written in plain English and that it will be very clear to people. We will also issue guidance, when the legislation is passed, in respect of social welfare but we are not putting the onus on individuals. If someone is in rent arrears, he or she has the process to deal with that but in terms of the effect of amendment No. 2, how will the RTB know who is in effect in arrears? There must be a process in place and it must be clear and defined. That is the effect of amendment No. 2.

In the context of amendment No. 3, I know that the word "significant" is subjective but it is key in terms of the identification of people and for the process they have to go through. What is significant for one person may not be significant for the next. That is why the RTB has a clear role to examine that impartially and make a determination.

On amendment No. 11, section 5(4) makes matters very clear in the context of retrospective treatment.

Could the Minister of State clarify which version of section 8 applies. I wish the process was as Senator Fitzpatrick described it.

It would be very reasonable for people to write letters describing their experience. Senator Moynihan's amendment provides that the RTB would be able to tell people if they qualify, but according to the Bill, they must declare that they qualify. That is different.

My specific question was on the effect of a relevant person and who was a relevant person.

I was very clear that we will set out in guidance the social welfare code that will be accepted. Let us not muddy the waters. If people are suffering rent arrears they can make a declaration that will be adjudicated impartially in plain English. It is a very simple, straightforward process. Public information will be put out on it.

I asked about persons with a doctor's certificate to say that they were incapable of work under -----

That is the job of the RTB.

----- the previous section, or are they persons who are deemed by regulation of the Minister to be incapable of work? Which of these sections is the subsection (8) of section 40 being referred to in the Bill was not clarified. I will note that.

I move amendment No. 3:

In page 5, line 12, to delete “significant”.

Amendments Nos. 4 to 6, inclusive, are related. Amendments Nos. 5 and 6 and physical alternatives to No.4. Amendments Nos. 4 to 6 may be discussed together.

I move amendment No. 4:

In page 5, to delete lines 16 and 17.

I wish to echo Senator Higgins's remarks. We should not be including something like this in the Bill as a criminal offence. It is a very cumbersome process. I echo Senator Keogan's point that we have a problem with literacy, particularly among non-Irish nationals, who are more likely to be living in rented accommodation. Including them as a criminal offence is very disproportionate. At the briefing with the Department on Monday, officials said that people can use their judgment about what a false declaration is, but making something a criminal offence is an excessive provision.

This raises a legitimate issue. The concerns expressed by Senators on Second Stage and in moving this amendment are real concerns with a real basis. The people identified are exactly the people to whom Senator Moynihan referred, those with literacy difficulties for whom English is not their first language, or those with disabilities, including intellectual disabilities and so on. I can understand where this amendment is coming from in terms of the creation of a criminal offence in section 4(2). The concern is that people might make a mistaken false statement or accidentally say something that is not true, correct or fully correct and might subsequently find themselves before the courts answering for that mistake. However, that is not the way that the criminal law works.

I spoke earlier in the week of our criminal justice system which is very fair. One of its tenets is that one does not commit criminal offences by mistake, there must be an element of mental intention to commit an offence. The concerns are that people might unwittingly make a mistaken declaration and subsequently find themselves before the court answering, in a criminal context, for having made that mistake are probably unfounded.

It is not immediately clear how the matter might proceed in terms of the prosecution of any offence under this but I suggest, and this is an area in which I have worked for a long time, that one could not prosecute people under this subsection unless they had wilfully and intentionally made a misstatement or an untruth on the form. Anything short of that would not pass muster in terms of the protections that exist within criminal law, the requirement for a mental intent, and the requirement for it to be proved beyond reasonable doubt. They exist regardless of level, whether it is the District Court or a jury trial in a more superior court. While I wholly accept the bona fides that underlines the amendment and the concerns that are genuinely held, they are unnecessary as the system exists in such a way, which applied not only in regulatory matters such as this but everything from shoplifting a Mars bar from a shop to public order offences and very serious offences, with the golden thread that goes through to protect individuals who are charged with these offences.

The concerns that underpin the amendment are unfounded because the system already takes account of people making mistakes or accidents and they are not liable to the criminal law for them.

I understand that amendments Nos. 4 to 6, inclusive, are being debated together. I support the amendment for the deletion of the offence. I have put down amendment No. 5 which covers a very similar ground to that in amendment No. 6 tabled by Senator Boylan. These amendments are us, in good faith, as Opposition Senators, putting forward what we believe are useful clarifications that would have made it a lot simpler.

Currently the Bill states, "A person who makes a declaration referred to in subsection (1) that is false or misleading in any material respect shall be guilty of an offence." That is frightening language for someone to read. I accept what Senator Ward says about the court taking a nuanced definition of intention and those familiar with navigating the court systems or who have solicitors who advise them on their financial matters and so on, may well be confident in that regard, but most people think "false" means "not true". We discussed how complicated it is.

On what Senator Fitzpatrick described, it would be much better if it was an application. Why not put in an application without an offence, where the person may put down the case, they send the application to the RTB and the RTB tells them that they qualify? That would have been a smoother, better process. However, the problem arises from a more fundamental issue, an assumption that I mentioned at the very beginning that we need to dive into, around who one trusts and who one does not trust. Later in the Bill, we will discuss how any notification for rent overdue will be passed on with no scrutiny of whether that is accurate or not. We imagine that if landlords put in the wrong amount, and it turns out that is inaccurate, the RTB might point that out to them - that is what we are asking for - but that will not be an offence. There are all kinds of presumptions at play. It is correct that it is all in the law anyway, so those who are sufficiently advantaged do not need it to be in the law because they already have it. The problem is not how this might play out in the courts but how it plays out in people's kitchens and sitting rooms, when they are on the phone to their mother and they are trying to figure out if they qualify, and if they have a landlord who tells them they are in danger. We know this, and we also know it from employment legislation, that where people are afraid that they might make a mistake, that is an issue in itself. We know it happens where there is a landlord who is notifying people of their evictions and a tenant is believing that they are not entitled to be evicted, and the landlord or some quasi-legal person on their behalf tells them that the tenant better be very careful because of what will happen if they make a mistake in this. We do not know how many people might not seek and claim the chill effect. We already know that in the course of the Covid epidemic, there was under-claiming of rent allowance and HAP. For many who have been on these payments, it is their first time being on a social welfare payment. They do not actually know the system at all, let alone have the confidence to say, "I believe the exact payment that I am on directly exactly qualifies".

I really regret that the Bill is being rushed through. I would like to think that were it not being rushed, the Minister of State would take these amendments on board. Senator Boylan's amendment is possibly more neatly worded than mine and better, where she said that it should not be made "deliberately or intentionally". That may apply in an interpretation before a judge but it would be nice if it was clear. This is not saying that everyone needs to read the primary legislation, that is not the issue. Normally it would not be an issue because we normally look at who must implement or interpret it.

However, it is couched in terms of the declarations people must make. If it turned out that a declaration was wrong and if a landlord wanted to go to the RTB to say that the people involved stated that they qualified but they did not, then the declaration could be declared invalid. That would be enough. It can happen but my point is that it would have been sufficient and that there is an excess of requirement here.

I can see that the Minister of State is frustrated but he can imagine the frustration the persons who face eviction are going to feel. Let us imagine that and carry it through. He mentioned that there is going to be an awareness campaign. Will he, hopefully now, address the points that Senator Ward made in the context of clarifying how he sees the framing of the offence of what constitutes a false, misleading or inaccurate declaration being interpreted and what is his expectation in that regard? Will reassurances be provided by means of the awareness campaigns we are hearing about to people to the effect that they are not in danger of criminal prosecution if there are inaccuracies in what they include in a declaration?

What Senator Higgins is saying is important and needs to be elaborated upon. Senator Ward is right in that if this goes to the courts, it will more than likely be thrown out or it will never make it to the courts in the first instance. He would say that as a middle-class white man. He views the law in a completely different way to someone who is a Traveller, an uneducated individual or, perhaps, a member of the Roma community. It is very different when a landlord says to a person to be very careful about filling in the declaration because that individual could be prosecuted because he or she knows that the law does not treat him or her the same. We are trying to be constructive. I am sorry if the Minister of State is frustrated and that this is the Friday of a bank holiday weekend. He wanted to rush this Bill through, however. We are trying to protect the most vulnerable in society. By not accepting the amendments or taking on board the constructive advice that we are giving, he is putting vulnerable tenants at risk. I know that landlords abuse their position because there is a power imbalance in our society. The provision will be abused.

Does Senator Ward wish to respond?

I will respond to Senator Boylan. I am very slow to take lectures from her on the fact that I am a white male middle-class-----

I remind Senator that we are on amendment No. 4.

There is an important point here. I have spent 14 years of my life representing the very people that Senator Boylan talked about, namely, members of the Traveller and Roma communities and those in the parts of society that are done down by officialdom. I have defended those people and I know very well what life is like for them. There is a suggestion that if we change what is in this Bill, the kind of landlords to whom Senator Higgins mentioned, that is, those who are unscrupulous are not going to say exactly the same thing anyway. There is also a suggestion that if we change the language and put in two words that mean exactly the same thing, that will somehow change the way people approach this matter. There is a further suggestion that the very people who are disadvantaged in society and to whom Senator Boylan refers in the context of her amendment are going to be reading this legislation in the first place. They will not be doing so for exactly the reasons that I mentioned earlier. This amendment creates an apprehension that is ill-founded and unnecessary. The legislation is clear in what it says.

The law is clear. It is not just this legislation, the matter is covered by common law, regulation and the application of that law in the courts. People will not be done down by the fact that this uses simple words such as "false" and "misleading" as opposed to the other language that it is being proposed. I understand where the Senators are coming from but they should not throw it back on me and suggest that I somehow do not understand how this system works. I do because, as I already pointed out to Senator Boylan, I have fought for these people for 14 years and I will not be lectured on the subject by her. I know very well how the system works and I also know that the amendments proposed here are unnecessary. They are not going to change the situation one jot. There will still be unscrupulous people who will try to manipulate those who are done down by society. That is still going to happen no matter what amendments are accepted. Rather than throwing stones across the Chamber, we have a Minister of State who has considered these matters, has engaged on them, has taken on board what has been said but who disagrees. That is the difference. It is not frustration, it is disagreement. If, however, one disagrees with Sinn Féin, one is always on the wrong side of the argument. I will not take lectures from the Senator.

Hear, hear.

I want to make it very clear that I am in no way frustrated. My concern relates to the confusion that has been put out there for tenants. These are very vulnerable people who we may be scaring into thinking that they are facing prosecution. Can we not just remember the core point here regarding tenants' rights, the RTB, seeking advice, making a declaration and the information and assistance available. It is up to the RTB to decide if it is going to prosecute someone. There has to be a level of penalty for someone who wilfully misleads. That has to be the case. The RTB is fair.

Senator Martin went into detail on how the RTB operates. He spoke on the basis of his experience of sitting on the board and working through the cases. The Senator also outlined how impartial the RTB is. It is not going to prosecute vulnerable tenants for genuine mistakes but will work with them and public information will be provided on this. I have assured people that there will be a significant campaign in providing advice regarding how this simple process will work. We need to be very clear. We do not want to be scaring vulnerable people who will need this support tomorrow or over the next few days and weeks. I want that message to go out loud and clear. I am in no way frustrated but we have to respect the rules of debate. I refer to circumstances where Senator Higgins shouts me down before I can finish my responses to her questions. That was the only point I was making.

I move amendment No. 5:

In page 5, lines 16 and 17, to delete “that is false or misleading in any material respect shall be guilty of an offence” and substitute the following:

“shall do so in good faith and where a declaration is found to be false, misleading or inaccurate, that declaration shall not be valid for the purposes of this Act”.

I move amendment No. 6:

In page 5, line 17, after “is” to insert “deliberately and intentionally”.

Amendments Nos. 7 to 10, inclusive, 39 and 40 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 7:

In page 5, line 34, to delete “in relation to the payment of rent due”.

I move the amendment but I do not wish to speak to it. I will, however, push it to a vote.

I move amendment No. 8:

In page 6, between lines 22 and 23, to insert the following:

“(d) his or her having received a Notice to Quit from their landlord the execution of which is likely to result in the tenant(s) presenting as homeless.”.

I move amendment No. 11:

In page 6, between lines 23 and 24, to insert the following:

“(7) A tenant may serve a declaration referred to in subsection (1) whether before or after the service by the landlord concerned on the tenant of notice of termination or of an

increase in rent.”.

I move amendment No. 12:

In page 7, to delete lines 2 to 4.

I thank the Minister of State for being in the House today. I welcome the Bill, but I am extremely disappointed by the watering down of protections for tenants contained in it. It represents an unfortunate weakening of the social solidarity we saw during the Covid-19 lockdown, when we introduced strong emergency measures to support vulnerable people, the unemployed and tenants in the private rental market. It is extremely depressing to see this Government withdrawing these protections at the earliest possible opportunity. The Bill has already prompted a host of Opposition amendments in the Dáil and in this House. It has already cost the Government two votes in the Dáil, including that of a junior Minister. This should be enough to give its supporters cause for concern.

Amendment No. 12 is a straightforward change. It would delete an extremely mean-spirited provision of this Bill. It is identical to a recommendation I proposed during debates on the emergency Covid-19 legislation in the last Seanad in March. As the Minister of State knows, tenants acquire legal rights according to the length of time they remain in the property. In the context of a rental market where protections are extremely weak by international comparisons, tenancy rights under Part 4 of the Residential Tenancies Act 2004 are extremely important to ensuring stability and security of tenure and protecting vulnerable tenants from homelessness. They become even more important during a pandemic, when a person's accommodation becomes a key part of his or her protection against a virus.

Due to the eviction ban instituted in March and the extension of notice to quit periods proposed under this Bill, tenants have remained and will be remaining in their homes for longer due to the increased legal protection from homelessness rightly provided by the Oireachtas. However, this subsection would ensure that the extra time for which a tenant or a family is allowed to stay in a home as a result of these protections is explicitly excluded from any assessment of tenancy rights. This provision was wrong in March and it is wrong now. People have been forced to remain in their homes for months as a result of public health advice issued by the Government. They have been legally prevented from leaving. To expressly prohibit time spent under a legally enforced quarantine from contributing to the tenancy rights of an individual or family and their ability to stay in their own home is not fair. The provision must be removed. I urge the Minister of State to accept this amendment.

I thank the Senator and note the concerns she has raised. The key question at the moment concerns linking Part 5 protections to the emergency and the additional protections that are afforded. We must strike a fine balance to introduce a measure that will be constitutional and will work. The Department has assessed this in detail and it is our considered view that as we move through the stages of reopening the economy, protections must be linked to the paying of rent in the normal manner. If a tenant is under pressure or is unable to pay due to the emergency, this Bill will provide the protocols enabling him or her to seek protection. The Department takes the view that bringing Part 4 protections into this is too big a step and will not stand up.

This amendment does not concern people who are unable to pay. The issue is that people have been living in their homes and paying rent for a certain period but this time does not count where their legal rights are concerned. This is not a protection concerning tenants' ability to pay. It addresses the fact that the period for which tenants reside in their homes does not entitle them to legal rights. It does not make any sense. I do not understand the relevance of the Minister of State's response to the amendment I have put forward.

I wish to make a brief point. I am supporting Senator Ruane's recommendation. Our Part 4 protections are quite weak when compared to protections for tenants internationally.

There are multiple ways in which Part 4 has been chipped away at over the years in previous legislation relating to residential tenancies. There have been multiple exemptions and loopholes. There are many ways to get around people having Part 4 tenancies. Incentives have been given to landlords in various Finance Acts to carry out certain kinds of refurbishments. In these incentives, a balance was not struck between the benefits for landlords and preventing the erosion of the rights of Part 4 tenants, even though amendments were tabled which would have had this effect. We need to examine the issue of balance. The fact that the programme for Government mentions a right to housing should indicate a new perspective and a somewhat greater ambition with regard to how the question of balance is interpreted. As I said, we should be open to implementing what we believe to be good policy and then allowing people to challenge it if they wish to. This is important. I also concur that this is not necessarily about persons who are not paying rent but about recognising Part 4.

I may be mistaken but it is my understanding that Part 4 - and specifically section 67(2)(b) - relates to the obligations of a tenant under an agreement which he or she has made as part of a tenancy. Where such tenants fail to abide by conditions, whether paying rent or another condition, this section puts a limit on the time it takes for a landlord to take action against them. Section 67(2)(b) provides for 28 days. Section 5(5) of the Bill we are discussing does not allow for the period during which, as Senator Ruane said, tenants were under compulsory lockdown due to the Covid crisis to be counted.

I am very sympathetic towards the notion that tenants should be allowed to count that time but, as I said earlier, all the provisions of this Bill involve the balancing of rights. When talking about these issues, there is sometimes a danger of thinking only of the nasty landlord and the helpless tenant who may be out of pocket due to a lack of pay and of therefore thinking the benefit should always be given to the tenant. As a general statement, I have sympathy with that but we should consider a situation in which a person was in a tenancy in March and had not paid rent for a month before the commencement of the lockdown. This amendment would allow such persons to continue in their tenancies without paying rent or attempting to do so. I do not think it is common for tenants to wilfully take advantage but it does happen.

The danger of this amendment is that it may allow tenants in that position to live rent-free at the expense of the landlord who might have to make significant mortgage repayments to a bank. The person who owns the apartment - and who may own it in title only because the bank actually owns it - may still have significant financial obligations which could easily drag them under. The danger with this amendment is that it does not balance those rights. People who are behaving badly may avail of the law to protect them and to allow them to continue to behave badly.

As stated, I have sympathy with the notion that we must protect people who are left at the end of a short rope during a lockdown such as that we experienced in response to Covid. I have sympathy with such a notion but the problem is that we must always have balance in these things. Section 5(5) seeks to create that balance and not to allow people who are already behaving badly to avail of the law to continue to do so. I understand the intent and the import of the amendment but I am concerned that, if it were implemented and section 5(5) removed, it could create unforeseen difficulties for people who have obligations to banks.

I struggle to see the connection between bad tenants who are not paying rent or breaking contracts in other ways and the intent of this amendment. This amendment is about protecting people and allowing the months for which they are living in a given accommodation to accrue towards giving them protection rights. It does not, in any way, shape or form, allow such tenants to live rent-free or to break any other contractual obligations. All the amendment does is protect tenants living in houses and allows the months for which they are living there to accrue for the purposes of building up their rights. There seems to be some confusion. If the confusion is on my part, I am willing to listen to an explanation, but I do not believe it is. When we tabled this amendment in March, we did a lot of work. This does not allow people who are not paying rent to stay in accommodation. It has nothing to do with preventing the eviction of tenants who refuse to pay rent. It is about allowing tenants to count the months they lived in a given accommodation during the Covid lockdown in building up their rights to stay.

Under the legislation the former Minister, Deputy Eoghan Murphy, brought in last year or the year before, if someone lives in a residence for certain set periods of time - one year, two years, three years and six years - he or she will accrue certain rights. This legislation says that time spent living in a residence during the Covid lockdown no longer counts towards the time one has accumulated living in that residence. This amendment seeks to correct that.

I apologise if there has been any misunderstanding but if one does not avail of the declaration, one can still continue to accrue rights under Part 4. I want to be very clear on that. Those who seek the declaration will be unable to accrue additional rights if they are not meeting their obligations. That is a different section. We have to finely balance rights with regard to those who avail of the declaration. The case of those who do not avail of a declaration is totally different. They will continue to accrue rights under Part 4.

The emergency legislation passed in March clearly carved out a scenario whereby people would not accrue credit towards their rights for the period of the Covid-19 measures. That legislation seems to contradict what is being said today.

If people do not avail of the declaration, they are able to accrue time to build up their legal rights in the accommodation. I have heard a lot about tenants in today's debate. There seems to be an argument that we do not understand what it is like to be a tenant. As a tenant for many years, I know what it is like to be asked to leave one's accommodation. I know what it is like to be told that, because of the amount of time one has spent in a place, one has a given number of months to find somewhere else to live. I know what it is like when the bank takes over a property and the landlord is no longer there to allow one to stay in the accommodation. From working in Galway County Council, I have also seen the opportunities for people to try to benefit from the HAP.

I welcome the fact that this Bill extends the period during which people cannot be evicted until 10 January 2020 if they make a declaration that they have been affected by Covid. They will not be evicted and will not have to move and their rents cannot be increased. This can only be a good thing right now. This measure is designed to improve the very precarious nature of tenancies across the country. We have all experienced that. I very much welcome it. It is good to hear the clarification that people may still accrue months towards their Part 4 rights if they have not made a declaration with regard to Covid.

I move amendment No. 13:

In page 7, between lines 4 and 5, to insert the following:

“PART 3

PROHIBITION OF RENT INCREASES DURING EMERGENCY PERIOD

Prohibition of rent increases during emergency period

6. Notwithstanding the Act of 2004—

(a) no notice of a rent increase for any tenancy or licence will be permitted during the emergency period, and

(b) an increase in the rent under the tenancy or licence of a dwelling shall not be payable in respect of the emergency period or any period falling during the emergency period.”.

Amendments Nos. 14, 37 and 38 are related and may be discussed together by agreement.

I move amendment No. 14:

In page 7, between lines 4 and 5, to insert the following:

“PART 3

PROHIBITION OF NOTICES TO QUIT ON GROUNDS OF VACANT POSSESSION

Prohibition of notices to quit on grounds of vacant possession

6. Notwithstanding the Act of 2004 and in order to maintain a low level communal residential occupation of emergency homeless accommodation to limit the spread of Covid-19, no Notice to Quit on grounds of a landlord seeking vacant possession to sell a property will be permitted during the emergency period.”.

I move amendment No. 15:

15. In page 8, between lines 2 and 3, to insert the following:

“Definition of landlord

8. Section 5 of the Act of 2004 is amended by the substitution of the following for the definition of ‘landlord’:

“ ‘landlord’ means—

(a) the person for the time being entitled to receive (otherwise than as an agent for another person) the rent paid in respect of a dwelling by the tenant thereof and, where the context so admits, includes a person who has ceased to be so entitled by reason of the termination of the tenancy,

(b) where legal proceedings in respect of a dwelling have commenced, any person having the benefit of a charge or lien in respect of that dwelling, and

(c) any person appointed to be a receiver of the income in respect of a dwelling, or to exercise any powers delegated by the mortgagee or other person to the receiver.".".

It would be very useful if the Minister of State were able to respond. I noticed a hopeful comment in one of his earlier contributions when he mentioned receivers and the question of the definition of landlord. If he is not in a position to accept the amendment at this point, I hope he might be able to address the question of expanding the definition of landlord and also deal with receivers. I think he made a positive passing comment about addressing that issue in an earlier exchange so I wish to give him an opportunity to tell us about his intentions in that regard.

I thank Senators Bacik and Higgins. We accept this is an issue and it is one that I hope will be addressed in the autumn. There is an urgency attached to it and we will also explore the issue in the joint committee. It is something we intend to action. To be fair, the point has been well made.

I thank the Minister of State for taking the time to give that response. In light of what he said I will not press the amendment on behalf of my colleague, Senator Moynihan, I thank him for engaging with us on this important issue.

Amendments Nos. 16, 17 and 18 have been ruled out of order as they are not relevant to the subject matter of the Bill and No. 18 is a potential charge on the Revenue.

Amendments Nos. 19 and 20 are related and will be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 19:

19. In page 8, to delete lines 3 to 5 and substitute the following:

“Amendment of section 106 of the Act of 2004

8. Section 106 of the Act of 2004 is amended by the insertion of the following subsection(4)—

“(4)Subsection (1) of this section may be satisfied by the online streaming of proceedings from the date of passing of this Act to 10 January 2021. If the online streaming of proceeding under subsection (4) is not feasible, then minutes of the proceedings should be taken and made publicly available.”.

I do not like the phrase "the new normal" because I hope we can do something better and different to what we had as the normal. The Bill in itself is an acknowledgement of the fact that we are looking at a longer period of time to deal with the Covid crisis. Many of the things that we do will have to be done differently, but it is very important that doing things differently is not a cutting of corners on due process. That is true of our discussions in the House and it is also true of the very important discussions that take place in tribunals of the RTB. I am concerned about this, although it might have been a necessary measure, of which we got very little notice in the previous legislation. It was the removal of the effect of section 106 of the 2004 Act requiring a public process in respect of a tenancy tribunal in the case of a dispute. To be frank, I believe it would have been wiser when this was pushed through in March when we were in crisis mode to have introduced a temporary suspension of the effect of that section. There was a case to be made for that but, instead, there has been and should have been time to look at doing things differently.

We are going to have tenancy decisions being made and tribunals will be taking place. We have talked about the RTB and its wisdom. We heard one of our colleagues in the Green Party, who spoke eloquently about being part of those tribunals and what happens and the decisions that are made by the RTB. I am reminded of the phrase that for justice to be done it must also be seen to be done, and due process must be seen to be done. That is extremely important. It is also important that individuals who find themselves in a situation, who might not be lawyers that have seen 20 such cases, would be able to see what happened to somebody else like them in a similar situation. For example, if one type of family in a housing estate is affected, that they can see what arguments were made in a similar case and that they would be equipped with the knowledge.

My amendment simply suggested that rather than suspending the full public visibility and attendance at tenancy tribunals given that we must be careful due to Covid, we would look to online streaming of those processes or where online streaming was not possible or appropriate that minutes of the proceedings would be taken and made publicly available. The Minister of State might address the issue by regulation or other procedure. That would allow people to at least know what has transpired and how the RTB makes decisions because a tribunal might make a decision that would affect them in the future.

It is almost an oversight and this probably got carried over from the previous legislation but I would welcome if the Minister of State could give me some sense of how we can ensure as we go into what might be another six, eight or 12 months of restrictions that we will have due process.

I thank Senator Higgins and other Senators for their responses. This is a key issue in terms of public health considerations whereby one has to weigh and balance them against the right to have a transparent public process. I fully appreciate that that is a major concern. However, public hearings are not suspended, they are just not mandatory. In terms of public health, the RTB will have to make a determination based on how many tribunals are going on per day or what the social distancing requirements are at any given time. There is no prohibition on tribunals taking place in public in section 7. That is key. The measure is in place until 10 January at which time I hope we can move on. I accept the points Senator Higgins made.

Will the Minister of State indicate if he will have an opportunity to engage with the RTB? It does not mean tribunals cannot be held in public but it means they are not required to be held in public. My question is whether regulations or alternative mechanisms might be explored and if there could be a conversation between the Minister of State and the RTB in respect of guidelines, if not regulations or even if it were to provide, for example, a set of sample tribunals.

Yes, we are happy to examine that.

I move amendment No. 20:

In page 8, line 4, after “shall” to insert “, subject to the consent of both parties to the Tenancy Tribunal,”.

Amendment No. 21 has been ruled out of order as it is not relevant to the subject matter of the Bill.

I move amendment No. 22:

In page 8, between lines 7 and 8, to insert the following:

“(a) by the insertion of the following paragraph after paragraph (b):

“(c) notwithstanding paragraphs (a) and (b), on the grounds specified in paragraph 3 or 4 in the Table to this section, only if the emergency period specified in section 3 of the Residential Tenancies and Valuation Act 2020 has expired.”,”.

The amendment would insert a provision into the 2004 Act to make it clear that landlords would not be able to evict a tenant on the grounds that they were selling the property or that they needed it for their own use for the duration of the Covid-19 emergency period. I have also co-sponsored the Labour Party amendments to this section which are tabled in the same spirit. My amendment is tabled on foot of advice from the Simon Communities which contacted all Senators this week to express its concerns about the various inadequacies contained in the Bill.

The briefing indicates the Bill does not protect those tenants who could be made homeless because the landlord requires the property for his or her own use or wishes to sell the property. It argues these clauses in the legislation have been a driver of homelessness over the period of the housing and homelessness crisis and the Dublin Simon Community is concerned that the removal of that protection without the development of comprehensive prevention supports would lead to an increase in the number of individuals and families having to present to homeless services.

The pandemic is not over, the emergency has not finished and the measures we introduced in the initial stages of the crisis have not outlived their usefulness, and they likely never will. The Minister of State has come before us today with extremely narrow proposals to provide very weak protections for certain tenants being evicted where they are not able to pay rent due to Covid-19. The Government is doing nothing for tenants being evicted under other legal grounds in the residential tenancies legislation and withdrawing all legal protections from them, essentially throwing them back to a chaotic private rental market operating in the midst of a pandemic. This amendment would, at least, provide a measure of respite by banning evictions on the more landlord-friendly grounds until the emergency period has expired. The Government, in its legislation, sees this as ending in January 2021.

I urge the Minister to accept the amendment so that we do not see important legal protection for tenants evaporate with the enactment of this Bill next week.

I thank Senator Ruane for her contribution. We are trying to get what is achievable and constitutional, which can be very difficult, while trying to protect the most vulnerable. We have no idea for sure for how long Covid-19 will be here and we cannot rely on a blanket ban on evictions being sustainable in the long term. We must be very clear and I quoted figures earlier regarding balancing the rights of tenants and landlords, as 6,500 residential landlords left the market since 2016 and 86% of those landlords have one or two units. It is important that we have small-scale landlords as well as tenants as public housing is not currently able to meet demand. We need to be very careful that the measures we adopt do not have unintended consequences like those I have mentioned.

This Bill is about protecting the most vulnerable and ensuring those who are under pressure due to the pandemic can make a declaration and rely on the protections set out within the Bill.

Amendments Nos. 23 and 24 are out of order.

Section 9 relates to the tables and the various circumstances under which people in Part 4 tenancies might be evicted. It goes to the absolute core of the issue I mentioned earlier, which is the fact we have a desperate imbalance in the system as is. I will not speak excessively on the two amendments that have been ruled out of order but they relate to the table in section 9. We have been hearing about balance and that when we do something for renters we have to think how it would affect landlords. I reiterate the points we have made. Please look at this in the autumn. When we look at the budget, the finance Bill and all of the other Bills let us make sure there is not undue consequence.

This is a vital issue. The amendment I tabled was simply looking at the question that when a place is being refurbished it should not in itself become a loophole to allow people to be evicted. There is already provision whereby somebody who has to move out for a few months while a place is being refurbished can be offered a new tenancy. Anybody in Dublin will tell us, and I am sure it is the same in Galway and Cork, that this is being used as a way of getting around the rental pressure zones because it can be treated as a new tenancy and the landlord can start from scratch in terms of where the rent goes. We looked for this in respect of the refurbishment grants and it will become much more pressing in terms of the urgent need for work on retrofitting. It will be a terrible disaster if a very positive thing, which is the retrofitting of homes, were to become a loophole to allow people to be evicted and, when the place goes up for rent again, not being offered a tenancy at an equivalent rate.

What we are suggesting is that where there is a rental pressure zone and the Government has set a threshold of a 4% increase allowed in any year, if a tenant is asked to leave and a place is refurbished or retrofitted, or whatever it might be, and the place goes on the market again that the original tenants would not simply be allowed to reapply for the tenancy but that they would be allowed to reapply for tenancy in a way consistent with the logic of the rental pressure zones.

The Minister of State mentioned cross-party work. There is huge wisdom in this House and in the other House, among all of those who worked in local authorities before they came in here, on what is actually happening with regard to the loopholes in rental pressure zones and how the table is misused for this purpose. This is an issue that has been raised by Threshold and others. Perhaps it is an issue we can look at in future.

These are issues we can tease out in the Oireachtas joint committee on housing.

Amendment No. 25 in the names of Senators Moynihan, Bacik, Hoey, Sherlock and Wall is out of order.

Amendments Nos. 26 to 28, inclusive, are related and may be discussed together.

I move amendment No. 26:

In page 8, between lines 31 and 32, to insert the following:

"(2A) Where the board on receipt of a termination from a landlord have concerns that the notice may be prima facia invalid, they will notify both the tenant and the landlord of those concerns.

This relates to a concern that was very clearly put by Threshold and I commend Threshold on its very consistent work on housing policy. It has highlighted its concern that the process put in place with regard to the notice of terminations, particularly the new measure whereby a notice of termination may relate to non-payment of rent in a new way, could in itself compromise the actual role of the RTB, which is to be an adjudicator. The RTB will notify the tenants of their rights under section 76, for example, but even the very fact of receiving a formal notification of their rights under section 76 from the RTB could be seen as it giving an imprimatur of legitimacy to a request that had come from the landlord.

Amendments Nos. 26 and 27 refer to the idea that when the RTB receives a notification of termination from a landlord, which it has to receive on the same day as the tenant, and it is prima facie completely illegitimate as, for example, it cites grounds that are not legitimate grounds in the table we mentioned or in the legislation or that the claim made is outrageous, rather than simply passing on that the tenant has section 76 rights and referring to them, the RTB would, in fact, be able to take action on the notification it received and make meaningful the very positive step put into the legislation, whereby the RTB is informed of a notification at the same time as the tenant. It would give substance to this. Having received a notification that seems to be prima facie invalid to it, it would be able to address these concerns at the same time as telling the tenant about the process. It would be able to tell the tenant and the landlord that there are questions that might need to be addressed. It would be very useful and practical. From the experience of a tenant, it would mean this is not about an imbalance but about a process that works, and that the tenant is not simply getting a letter from the landlord followed by a letter stating his or her formal rights.

Part 3 is not about Covid any more. These are new measures being put into our rental legislation. One of the new measures being expanded and changed is the extent to which non-payment of rent can be used as a basis for termination of accommodation. The rental pressure zones were mentioned. It would be good if the RTB would undergo an actual process to confirm the amount of rent that persons are being asked for is in line with good practice under the rental pressure zones. We know there have been incidents. I know of some cases but Threshold knows of many as it is a first call for renters. The number one issue that Threshold raised is the assumption in the Bill that the claim for rent due from the landlord is effectively assumed to be valid unless challenged by the tenant through a tribunal process. It is the balance between where we place our trust and where we assume good faith. If the RTB had an actual scrutiny role when it gets notifications, there are several ways it could be addressed. I hope the Minister of State will give me a sense of how he would see it working out and how we can avoid unfortunate situations.

I thank the Senator for tabling her views. The board has to be independent. We are very clear on this. It must be neutral. Therefore, by default, it cannot intervene. A tenant can, under section 76, bring forward a determination to get involved in a resolution process. We are providing that the RTB must write to the tenant to get involved in the process when issues arise. We are very clear on the matter. Under section 76 the pathway is there for tenants to bring forward resolutions that may require determinations. We have to be very careful not to compromise the impartiality of the RTB. I am very keen not to do this.

I suggest the amendments are not in any way dealing with impartiality. It is not about being partial to a tenant or liking a tenant. It is about due process. It is about standards in the rental sector and the standards in practice. We know from when we were discussing the legislation and how complex it is that the RTB is sometimes in a better position to know whether something is prima facie invalid or valid. It has the expertise that an individual tenant might not have. I am not suggesting it goes to gun for a particular tenant. I am saying it would raise and flag a concern. There is a concern about the RTB giving its imprimatur . A landlord might say the RTB was also sent this and it did not raise any concerns. I want to know what the mechanism is for the RTB if something comes across its desk that is just straight up wrong.

Obviously a tenant has the capacity to intervene.

The RTB cannot start intervening off its own bat. The key point is that the board is neutral. Having said that, we can seek advice from Threshold and go through the points the Senator is making. We are trying to achieve a fine balancing act in this legislation.

From my time on Galway County Council and having dealt with a number of housing queries, it was always Threshold that would come back to the tenants who made those queries. In every instance where a tenant presented a notice of termination of residency or tenancy, the first advice we always gave was that he or she should contact Threshold. That is what is done in Galway County Council and I assume it is the same in local authorities.

I absolutely commend the work of Threshold. However, to some extent, it is unfortunate that we have voluntary bodies that are happy to fulfil the functions that should be fulfilled by the State.

Amendments Nos. 27 and 28 were discussed with amendment No. 26. Is Senator Higgins pressing amendment No. 27?

As the substantive point was contained in amendment No. 26, I will not move amendment No. 27.

I move amendment No. 28:

In page 9, between lines 4 and 5, to insert the following:

"(5) If the amount of rent sought in a Tribunal dispute is found to be in contravention of any other enactment, including rent pressure zone rates, the claim shall be deemed invalid.".

This amendment relates to situations where the amount of rent that is sought in a dispute is found to be in contravention of any other enactment. In section 16( a ) of the Residential Tenancies Act 2004, which is being used as the basis for notifications of termination of tenancy arising out of the non-payment of rent, there is an explicit reference that the amount of rent being sought should not be incompatible with other enactments. Will the Minister of State provide clarity in this regard? The amount of rent sought by way of a notice served under the authority of section 16( a ) must be compatible with other enactments, which would, I assume, include enactments in respect of rental pressure zones. If the amount sought is incompatible with the rules under the rental pressure zones provisions, does that mean the claim is not eligible? My concern is that once the process is under way and the matter is under consideration by the tribunal, the claim could be seen to be invalid. I want to know what the mechanisms are for dealing with a false claim in that sense.

My fundamental concern, which I will address in my amendment No. 29, is that the process being put in place will move too quickly. The Bill introduces new grounds of non-payment of rent but the timeline involved for dealing with such cases is extremely short. People are being given only 28 days' notice to pay back-----

I remind the Senator that this amendment was already discussed with amendment No. 26.

I am concerned that the process will move very quickly to a point where a claim for rent becomes a basis for a notification of termination. I am asking, because this is new, what steps will be taken to offer some safeguarding, with reference to subsection 16( a ) of the 2004 Act.

The amendment has already been discussed but I will allow the Minister of State to respond.

If a tenant believes that a notification in respect of arrears is invalid, he or she has recourse to the RTB. That is very clear in the legislation. The RTB is the regulator in these matters and it is very aware of the law in this regard. I am confident that the board is able to do its businesses and that we are balancing the rights of tenants and landlords in an impartial manner.

Amendments Nos. 29 and 30 are related and may be discussed together.

I move amendment No. 29:

In page 9, line 8, to delete "28 days" and substitute "60 days".

This amendment relates to the termination of a Part 4 tenancy. The notice period that is allowed in such cases is too narrow, and this is an example of the right balance not being struck. Regardless of the duration of tenancy, people are being given only 28 days' notice. Again, this is not Covid-specific but something that will apply all the time. In a situation where an amount of rent is due, even if the tenant has been in the property for ten or 20 years and it is the first time the rent has not been paid, for which there may be many reasons, a notification period of 28 days is far too short and is not appropriate. Moreover, there is no consideration given to the amount due. If there is to be a fair balance, we should be looking at how much rent is owed over how long a period of time. We should have the same kinds of complicated grids that we have around Part 4 tenancies and evictions.

Where there is a failure by the tenant to pay an amount of rent due, 28 days - or less than a month - is too short a period to allow for the payment to be made. I am proposing in amendment No. 29 that the period be extended to 60 days. This would give people time to get the notification, see how much rent is due and seek confirmation if they do not believe they owe the amount indicated. It gives them time to talk to Threshold, which runs a busy service and cannot always offer 12 hours of help to somebody immediately, and whomever else they need to consult. It allows them time to confirm whether the right amount of rent due is being sought and to challenge it if they do not believe it is correct. Where they are asked to leave the property, it gives them time to try to make other arrangements. A notice period of 28 days is too short and it is not enough time to allow people to pay back any rent owed. It does not even give enough time for them to put their entire next pay cheque into paying off whatever rent might be due.

I hate to be dramatic but this calls to mind the classic stories of debtors' prison and the loopholes that arose under that system. At times when money was short, such as just after Christmas, people fall into arrears. I know there are processes in place to deal with that and I recognise that 80% or 90% of landlords will work with their tenants to address those situations. However, I am worried that the space afforded here is too narrow and that it may create a dangerous situation where a landlord who has been waiting a very long time to get somebody out of a building could exploit it. A notice period of 60 days would offer a more reasonable balance and I hope the Minister of State will review it.

In terms of the notice period of 28 days, I remind the Senator that there are supports available, including through MABS, community welfare offices and the rent supplement scheme. Community welfare officers are turning around applications within three days. Things have improved drastically in terms of the supports that are there to help people who are struggling to pay their rent. We are very much focused in this Bill on the Covid-19 emergency and trying to safeguard people in tenancies who are vulnerable through the effects of the pandemic. The various schemes are in place and the pathway for people in that situation is very clear. As I said, there are supports for tenants who find themselves facing a 28-day notification. One of the big issues we have identified in the Department is the low take-up of the rent supplement scheme. That is something we want to highlight and address further. In the meantime, supports from the State are in place and applications are being turned around quickly.

A notice period of 28 days is absolutely too short. I will be pressing the amendment.

To be clear, there will be no evictions until 10 January 2021 in order to allow for the circumstances in which people who are going through the impacts of Covid right now may find themselves. As the Minister of State mentioned, there are supports that will be available to tenants after that. From now until 10 January next, tenants who can make declarations in the context of the impact of Covid will be protected.

As already pointed out, Part 3 does not relate to the Covid situation. It introduces a change in the law in terms of the notification of termination of a tenancy and it is an important change. It relates to provisions in the Residential Tenancies Act 2004 and broader rental policy.

I understand that the Minister of State might not be able to accept the amendment today because the Dáil has risen. Some people can be evicted during this period. Yes, that ban on eviction will stop this regressive measure having a negative effect for a few months. I urge the Minister of State to use those few months to revisit the fact that 28 days is too short and to ensure we have a fit-for-purpose Residential Tenancies Act that addresses the fact that 28 days is too short before evictions start again because this is the policy for the next ten years unless we and the Minister of State change it.

I think 28 days is a very short period of time for anybody to get anything done when he or she is dealing with public administration or complex issues like this. Any low-income worker will already be on a housing list. He or she should already be on a local authority or voluntary housing list. He or she will be in receipt of HAP or rent supplement and if the HAP or rent supplement is insufficient, there is facility to have it increased. I have helped many people do this. They have had to do this because of all of the pressure caused by increasing rents. The reality is that if anybody is under financial pressure, he or she needs to access the supports because we need to make tenancies sustainable and 28 days should not be an issue. However, it is key that there is greater awareness of the emergency rent supplement that is available. Homeless HAP has become the default in Dublin. HAP itself will not secure someone a tenancy. The increased allowances on homeless HAP represent the default and this is still insufficient. It does not take away from the fundamental issue of affordability, which we must address in other ways.

I hear the points that have been made but it is very important that we highlight the supports from the State that are available and are being turned around quickly. There will be people who will be in distress in terms of discharging their rent. This Bill deals with that with regard to Covid-19. There are State supports for other tenancies and they are being dealt with quickly. There is a three-day turnaround in respect of the community welfare officer, which is very efficient in terms of people undergoing stress. We have all worked with people in our clinics up and down the country who are under stress and we advise them about those supports. They are there and are ready and waiting. We must keep advising people about this because tenants who are under pressure through this period and are unable to discharge their rent need to be aware that the State is ready, willing and available to help through MABS, supports like rent supplement and those other available supports that we will be able to discuss to do our best to keep their in their tenancies because that is the wish of the Government. We want secure quality tenancies and to keep people in them.

We were in a housing crisis before the Covid crisis and we will still be in a housing crisis after the Covid crisis. The problem is that this 28-day measure is a measure whereby 28 days' notice of eviction will go into the middle of the housing crisis we faced beforehand. Yes, measures are in place but let us contrast things. We heard about the landlords and their mortgages. Compare the measures that are there for persons struggling with their mortgages with the measures that are there for persons struggling with rent such as the period of time, the timelines, the processes and the mechanisms to allow somebody to make arrears. We are giving somebody 28 days straight up to pay up and that is it. There is no long process for people to find a reasonable way to pay the back rent and deal with it. It is 28 days. Again, I am not accusing the Minister of State of this but it seems that this smacks of a measure that probably some landlords would like that is tagged on to a Bill that has mainly a very laudable and positive purpose. It needs to be revisited. I would regard 60 days as the basic minimum. I will press the amendment.

Amendment No. 30 was already discussed with amendment No. 29.

I move amendment No. 30:

In page 9, line 20, to delete "28 days" and substitute "60 days".

Is the amendment being pressed?

Yes.

Amendments Nos. 31 and 33 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 31:

In page 9, between lines 24 and 25, to insert the following:

“(c) the Board be satisfied that the stated amount of rent unpaid is accurate and consistent, as required by Section 16(a)(ii) of the Act of 2004, with other enactments, including enactments in respect of rental pressure zones.”.

These amendments relate to the same point that I have already discussed, namely, the RTB being careful and scrupulous about the right amount of rent being charged to reflect the realities of rental pressure zones. The Minister of State is going to have to keep that provision under review. This legislation is making it easier to evict people on the basis of rent unpaid and that will require much more scrutiny. I do not need to speak further on the issue because the relevant points were made in our previous discussion.

I move amendment No. 32:

In page 9, between lines 35 and 36, to insert the following:

“(c) where a tenant is at risk of homelessness having been served a notice for failure to comply with his or her obligations under the Act of 2004, provide the tenant concerned with such information in writing as will enable him or her to apply for assistance from the relevant local authority under the Housing Act 1988, including preventative measures to avoid entry into emergency accommodation. The Board shall have regard to the response of the local authority in assisting the tenant from entering emergency accommodation in any decision on the termination notice.”.

I move amendment No. 33:

In page 10, between lines line 4 and 5, to insert the following:

“(3D) If the amount of rent sought is found to contravene any other enactments, including rental pressure zone rates, the service of a notion of termination shall be deemed invalid.”.

This amendment has already been discussed with amendment No. 31.

I move amendment No. 34:

In page 10, between lines 4 and 5, to insert the following:

“(d) the substitution of the following subsections for subsection (4):

“(4) Where a landlord serves a notice of termination in relation to the tenancy of a dwelling under this section, he or she shall at the same time serve a copy of the notice on the relevant housing authority.

(5) Where a tenant on whom a notice of termination in relation to the tenancy of a dwelling has been served under this section notifies the relevant housing authority that he or she (and his or her dependants, if any) is likely to become homeless on termination of the tenancy, the housing authority shall make such inquiries as it thinks fit and may for that purpose, by notice in writing to the landlord concerned, require the landlord to extend the period specified in the notice by not more than 28 days.

(6) This section is subject to section 69.”.”.

I move amendment No. 35:

In page 10, between lines 4 and 5, to insert the following:

“ Private residential tenancies register: publication of certain details

13 . Section 128 of the Act of 2004 is amended by the substitution of the following for subsection (4):

“(4) The published register—

(a) shall not contain any information, as respects a particular dwelling,that discloses or could reasonably lead to the disclosure of the identity of the landlord or the tenant of the dwelling, and

(b) shall disclose, as respects every dwelling, the amount of the rent payable under the tenancy of that dwelling.”.”.

Amendment No. 36 in the names of Senators Higgins and Ruane has been ruled out of order as it is not relevant to the subject matter of the Bill.

I hope we can engage on the constitutional question, not simply at the committee but also across both Houses. Amendment No. 36 would have addressed the question of the definition of property rights which is something about which my colleague, Senator Ruane, feels passionately.

I move amendment No. 37:

In page 3, line 16, after “significant” to insert “public health risks and”.

I move amendment No. 38:

In page 3, between lines 22 and 23, to insert the following:

“WHEREAS the Emergency Measures in the Public Interest (Covid-19) Act 2020 resulted in a significant reduction in the number of adults and children both presenting and entering emergency homeless accommodation, which in turn played a significant role in reducing the Covid-19 infection rate among residents of emergency accommodation, this should remain an objective of Government that must be sustained until such time as the risk of infection of Covid-19 in congregated residential emergency accommodation settings is reduced significantly;”.

This amendment has already been discussed with amendment No. 14.

I move amendment No. 39:

In page 3, lines 6 and 7, to delete “for failure to pay rent due”.

This amendment has already been discussed with amendment No. 7.

I move amendment No. 40:

In page 3, lines 9 and 10, to delete “in relation to arrears of rent”.

This amendment has already been discussed with amendment No. 7.

When is it proposed to take Report Stage?

Now.

Is that agreed? Agreed.

When is it proposed to take Fifth Stage?

Now.

Is that agreed? Agreed.

As is tradition, I invite the Minister of State to make a final contribution.

I thank the Cathaoirleach for his time, and I thank the Leas-Chathaoirleach and the Senators of the House. It has been a high-quality debate and very engaging. I am aware that Senators have very genuine feelings about the various issues, which I really appreciate. I will endeavour to work and do my very best in the capacity of my office to try to advance the cause to improve tenants' quality of secured tenancies. That has to be the goal. I appreciate the courtesy afforded to me today.