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A constitutional right to housing has expressive value but would it force government to act?

More than six out of 10 Irish people believe the right to housing should be enshrined in the Constitution.

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FOR THOSE WHO advocate inserting a right to housing in our Constitution it isn’t so much about leaving the State open to legal challenge as ensuring aggressive legislative change, says David Kenny, Assistant Professor of Law at Trinity College Dublin. 

Kenny is one of a number of legal academics who have closely watched the debate about this issue over the last few years and as the broader conversation about the housing crisis rolls on, the idea of a constitutional right to a home has come back into focus. 

The Programme for Government commits to holding a referendum on housing – a  commitment with little detail on what said referendum would look like, though broadly interpreted to mean asking the people of Ireland whether we should insert a right to housing in our Constitution. 

On Friday, Fianna Fáil senators brought forward a private members’ motion to amend the constitution “to ensure that every citizen has the right to housing.” The group called for a referendum on the issue to be held within 18 months. 

But how would this work, and specifically what constitutional amendment would be required?

In the first instance, says Kenny, an amendment on a right to housing “is what we call an economic, social, cultural right that touches directly upon socio-economic distribution”.

“It touches upon our core matters such as social policy and that’s much different to the kinds of rights we protect in the Irish Constitution. The only other right that’s like it in the Constitution at the moment is the right to free primary education,” he said. 

Article 43 of our Constitution specifically deals with property rights in Ireland. It holds that a person has a “natural right” to private property, that the State can pass no law attempting to abolish private ownership and that these provisions are guided “by the principles of social justice”.

However, the State may delimit by law these rights “with a view to reconciling their exercise with the exigencies of the common good”.  For those advocating a constitutional right to housing, this section is key. 

Kenny said that for many years, the Irish State has been reluctant to pass laws impacting property rights but that an amendment on a right to housing would “counterbalance that a little by saying ‘we’re restricting property rights for the sake of housing provision’”.

That’s more acceptable and clearly for the common good…but private property rights would still be there and still be strong.

Any attempt to change the Constitution would, said Kenny, require a referendum.  The Government has set about establishing a Commission on Housing which is expected to be formally established in September 2021. 

The setting up of a commission is contained in the Programme for Government, with the commission set to be tasked with examining issues such as tenure, standards, sustainability and quality-of-life in the provision of housing in Ireland.

In an interview with The Journal this month, Minister for Housing Darragh O’Brien said it would look at examples from other countries to help plot out a roadmap for housing over the next few decades. 

He said the commission would also make implementable suggestions around changes in housing policy and legislative changes that might be needed. The commission will also examine the need for a referendum on housing. 

Cabinet arrivals 002 Minister for Housing Darragh O'Brien Source: Sasko Lazarov

As this conversation grows louder, recent research shows strong support for constitutional change. 

More than six out of 10 Irish people believe the right to housing should be enshrined in the Constitution, according to research published in December.  

The survey, commissioned by the Irish Human Rights and Equality Commission (IHREC) and carried out by the Amárach research group, revealed that 64% of Irish people believe citizens of this country should have a constitutional right to housing.

More than 80% of those surveyed said housing was a basic human right while 79% supported the inclusion of a new ground in Irish equality law to protect people against discrimination due to their socio-economic status. 

The majority of respondents said family background, a person’s home address or type of house, educational background and economic situation should be outlawed as grounds for discrimination.

IHREC chief commissioner Sinéad Gibney said the survey results underlined the need to look at housing in Ireland “as a right, not a commodity”.

“Housing represents more than just the cost of bricks and mortar; it’s where our children grow, where our families gather, and where generations should feel safe and secure,” said Gibney.

Discrimination against people living in areas facing socio-economic challenges should now be considered for prohibition in law, she added. “This approach would allow people seeking employment to ensure that their applications are assessed on their skills, qualifications and ability rather than on social background or postal address,” she said. 

The IHREC survey was carried out among 1,200 participants to mark the UN’s Human Rights Day which takes place every year on 10 December – the day the UN general assembly adopted the Universal Declaration of Human Rights in 1948.

This declaration lays out the rights every human being on Earth is entitled to regardless of race, colour, religion, sex, language, political or other opinion, national or social origin, property, birth or other status.

The UN has previously criticised Ireland’s lack of a constitutional right to housing with Leilani Farha, the UN’s former special rapporteur for adequate housing, saying in June 2018 that a good starting point to tackle the country’s housing and homelessness crisis is “to either constitutionalise the right to housing or failing that, legislate the right to housing”. 

A number of EU countries including Spain, Belgium and Sweden protect the right to housing in their constitutions. In Sweden it is incumbent on public institutions s shall secure the right to work, housing and education, social care and social security, as well as favourable conditions for good health”. 

Untitled-design-1 Former UN special rapporteur for adequate housing Leilani Farha Source: Focus Ireland

The UN’s International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty that commits countries, including Ireland, to providing certain rights including the right to “adequate housing.”

Farha said what is unfolding in terms of Ireland’s housing crisis is tragic and serious but solvable because of its small population. Housing was the issue of “our times right now”, with homelessness considered a gross violation of human rights but on the rise “virtually everywhere”.

“Evictions continue unabated worldwide, particularly because so many people lack security of tenure. Unregulated private actors are filling the void left by governments that are continuously receding from the housing sector, thereby leaving unchallenged the prevailing paradigm that housing is a commodity rather than a social good. Ireland is in the throes of all of these phenomena,” she said.

That insecurity of tenure is a key aspect in Assistant Professor at Maynooth University  Dr Rory Hearne’s argument for drawing up constitutional change. 

“Over the last 30 years, policy has consistency failed to ensure a housing system that provides secure, affordable homes for people,” he said. 

“Government have converted housing into an investment asset and for many years myself and other academics have argued that there’s no philosophy around our approach.

“The only values that are promoted within housing policy is the idea of heavily indebted home ownership, treating housing as an asset, as an investment, rather than a home,” said Hearne. 

Hearne argues there are both “practical reasons and then what you might call value reasons” for inserting a right to housing in the Constitution. 

But crucially, he says, it isn’t about giving everyone a house tomorrow.

“The idea of a right to housing, as set out by the United Nations, is this concept of ‘adequate housing’. That means at its core affordability, security of tenure, people having a standard of housing,” said Hearne. 

“[A constitutional right] would act as a balancing right to the right to private property but it would very specifically mean that the State would have an obligation, not that everyone is given the key to a house tomorrow, but that our housing policy and our housing system would ensure that everyone would have access to an affordable, secure home.”

sinn fein 762 Dr Rory Hearne Source: Sam Boal

Hearne’s argument has been echoed by homeless charities including Focus Ireland and the Simon Community, which in 2018 laid out its case for constitutional change. 

The charity said that enshrining this right in our Constitution would “acknowledge in a meaningful way” Ireland’s commitment to the UN’s ICESRC and would establish “a statement of our society’s values and concerns”.

While the exact phrasing of this constitutional amendment requires further discussion, it said key elements of the amendment must include: 

  • That the right to housing is “justiciable” i.e. where social policy or legislative measures fail.
  • The right to housing should be specified in such a way as to be arbitrated, determined and enforced by the courts. 
  • That the right to housing make real our international legal obligations.
  • That the primary responsibility of the individual to meet their housing needs from their own resources is enshrined, ensuring the targeting of state intervention for those most in dire need.

In this regard, any future wording in the Constitution would be critical, said TCD’s Kenny.

“There might be differences in terms of how it’s worded, words like progressive realisation have been used, with the idea that you don’t have to give everyone a house right away.

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“The idea is that we’d have progressively better provision of housing to try and meet everyone’s needs. The language in that case would be a little bit different from most of the Constitution,” he said. 

The Fianna Fáil Seanad group has suggested amending Article 43 as follows:

  • The State recognises, and shall vindicate, the right of all persons to have access to adequate housing. 
  • The State shall, through legislative and other measures, provide for the realisation of this right within its available resources.  

On a practical level, said Kenny, Ireland could follow South Africa’s model which has an enforceable right to housing. 

The right of access to adequate housing is provided under section 26 South Africa’s Constitution, which in addition to requiring the State to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right.

Kenny cites the landmark case of the Government of the Republic of South Africa v Grootboom from 2000 in which the High Court found that the State was obligated to provide shelter to 510 children if their parents if their parents could not, and that – where this was the case – the children’s parents were entitled to accompany.

The case involved 390 adults and 510 children who were living in poor conditions in an informal squatter settlement where they had no water, sewage or refuse removal services.

When they left this settlement behind to live in shacks and shelters on privately-owned vacant land that had been earmarked for low-cost housing, the owner obtained an order to evict them. Their homes were bulldozed and burnt and their possessions were destroyed.

After demanding temporary accommodation from the municipal government without success, the squatters asked the High Court to order the government to provide them with adequate basic temporary shelter or housing until they could obtain permanent housing, or basic shelter.

“This case was an example of a major, long-term policy failure,” said Kenny. “It’s a useful example because it gets away from the idea that person X is looking for house Y and more the idea that on a major, system-wide level [the State] failed a group of people,” said Kenny, who added that this type of case is a more likely legal scenario if Ireland adopted a constitutional right to housing. 

And yet a constitutional amendment like a right to housing is not a replacement for legislation, says Rachael Walsh, an Assistant Professor of Law at Trinity College Dublin, who specialises in property rights.  

Walsh says we need to consider the lack of political will and whether a constitutional amendment would in fact force Government to act. 

“It very much depends on what your goal is – how the Constitution should treat housing. A very important function of a constitution to my mind is to say what is important for a country, particularly when it comes to rights, to recognise what we value for our citizens. 

A standalone right to housing obviously has huge expressive value in making a public commitment to it but a concern I’ve had is that some of the push for a right to housing has come from a worry that the Constitution as currently structured stops the government from legislating in various ways.

Walsh said that while there are good reasons behind the idea of a constitutional right to housing there are few barriers to legislative measures to tackle the housing crisis. 

Walsh has said narrower changes to property rights could be explored, notably the Programme for Government undertakes to give the Land Development Agency compulsory purchase powers. 

Property rights, meanwhile, are protected against ‘unjust attack’ in the Constitution, but the State is empowered to restrict the exercise of property rights to secure the common good and social justice.

Walsh adds: 

That said, the difficulty is that it does seem to be the political perception of what the Constitution says on this issue so we’ve had frequent government statements from ministers over the last 10 years really indicating that they are hamstrung from doing X, Y, Z in relation to housing, for example, because of the Constitution and the difficulty is, we presume that those statements are probably based on the advice of the Attorney General…but we don’t see the advice. 

“But what we can kind of deduce from what ministers are saying is the read of successive attorneys general has been that the scope to legislate is quite narrow because of constitutional property rights. 

“As somebody immersed in this field, in research, you know I would disagree with that interpretation of the Constitution because when we look at the wording of the Constitution, it very clearly states that property rights can be limited to secure the common good.”

Walsh says that traditionally courts rule in favour of the State in property rights challenges, thus recognising that the public interest gets significant weight and that the primary arbiters of what’s in the public interest are the political branches. 

“So actually when you look at the body of case law in the round you know, really, there’s an awful lot of scope for the legislature to act where there’s a clear common good, social justice rationale behind it.”

Inserting a right to housing into the Constitution won’t make it harder to legislate for change but it won’t necessarily make it easier either if the traditionally conservative approach to property rights persists, Walsh says. 

“We’ve seen the legislature act really quickly when it felt best to do so in political terms like on bulk-buying [by investment funds]…so one would just hope that the political impetus is really there.” 

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