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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.
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”.
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.”
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:
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.
“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:
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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I would agree that everyone is entitled to have a place to live. I also think that too many people expect to be given a house for free .there are some people who through no fault of their own will need to be looked after but there are too many who need to get a job like the majority of people and stop scrounging of the state
@Mike Heelan:
Supply & demand man, if you build social housing, private renters still benefit due to the decreased demand on the private market. HAP right now is artificially inflating the market and costing the state billions. Social housing isn’t “a house for free”, the council collects rent from it, it’s more cost effective in the long run.
@Mike Heelan: The country has been mismanaged for decades and it won’t improve anytime soon. We have a population smaller than New York City and a national debt approaching 250 BILLION euros.
It is scandalous that we have let things get so bad here as it will be our kids and their kids who will suffer.
Let’s keep voting for the same 2 or 3 political parties who have got us into this mess, right?
@Mike Heelan: I’ve a well paid job, the issue is I’m single and getting a mortgage is nearly impossible, and renting is just burning through my wages. Nobody is demanding a free house, and nobody actually gets one, even scroungers I know who never worked are paying rent on the house or apartment they have. The issue is we have too many developers wanting to build either shoe box apartments in cities or big housing developments miles from anywhere and charging a King’s ransom for it.
@David Bourke: But there is a limited pool of builders. Building more social houses means less supply on the private side
@David Bourke: Social housing is a house for free. Here’s why. My wife and I have put a deposit on a house that is under construction. In order to get a mortgage. My wife and 1 both have to be working full time. Have 6 month’s wage slips. We have been advised not to change jobs or take out other loans like car loans etc as our mortgage application will have to be redone to take into account our new circumstances. We have to 10% of the price of the house for the deposit. We’ve had to pay for engineers report on the foundation, solicitors etc. Still more to pay for when the house is ready. Once we get the house our mortgage will be over 1200 per month, not including the house insurance we have to get.
For the same house on the social housing list none of that happens. It’s handed to them.
@David Corrigan: I’d be all up for a shake up in irish politics but I think its a bit delusional to think that we could expect a seismic change by say a SF LAB SOCDEM GREEN plus a scattering of the smaller left wing groups…… At least FFG + 1 other group has a chance of staying together and getting a programme of government that can be enacted. Labour and the Greens are the only ones who have shown that they can make compromises to enter Government, much to their detriment btw…. SF want everything on their terms and until they learn to compromise they won’t be part of any government!! And…. If they compromise they risk loosing their support and we’ll have everyone bleating on about FFGSF!!!
@Michael Healy: The rent they pay is minimal. I know a family, 3 kids, went on housing list as soon as pregnant with first child ten years ago. Recently got a lovely new build after years renting and it being paid by HAP. Neither of the parents have worked a day, he said he’d get a job when they got a house but surprise surprise hasn’t, there is nothing wrong with him. On the sick with vertigo! It is sickening when you’re paying mortgage and bills and they are handed a brand new house with latest mod cons for doing nothing.
@Roy Dowling: that doesn’t mean it is handed to them. They pay rent just like 100s of thousands of others the difference being their rent is not subject to ‘market effects’. Your logic seems to be ‘It was difficult for me to get a house, it should be difficult for everybody forever’ rather than wanting people to not subsequently have to jump through the same amount of hoops you had to due to broken system. The vast majority of people in social housing work and pay rent.
@Jerriko17: We can’t keep going ahead with this. The national debt keeps increasing while the quality of services gets worse. Accountability has to be built into the political system and keep ALL parties in line. Corruption and decision making to suit individuals and their cronies in wealth has to stop. It will get to the stage where the IMF will be in our government buildings full time.
@Aidan O’ Neill: Didn’t say it should be difficult but they are handed a house for free. Before I get the keys to my house I’ll have to fork over nearly 40thousand Euro for the deposit, engineering reports, solicitors fees etc.
How much do they have to pay before they get their keys to their social housing? Absolutely nothing. Tell how exactly is that not a House for free?
@Roy Dowling: The landlords are the ones getting the free houses. I rented a house through the hap scheme for 12 years.
My landlady lived in Canada, only few years prior she bought her house in ireland , or should I say, had taken out and started to pay a mortgage as she left soon after to take up predtigeous job and let her house so the rental income would take care of the mortgage. Both her first tenant and I applied for the hap scheme and paid rent to the council, she was happy to accept their contract and the council leased the house for the following 16 years and paid off her mortgage. As soon as her mortgage was completed she put the house on the market and sold it for €330,000 .
Someone got a house for free alright. And it wasn’t me.
@Aidan O’ Neill: How much rent do they actually pay? And if they don’t pay this small sum what happens to them? Do they get kicked out?
@Roy Dowling: it’s not free. They have to pay rent that’s assessed according to their income.
Repeating a lie doesn’t make it true.
They don’t have 40,000 to fork over, if they did,they d probably prefer to live in a special one off out in the country like you rather than in a box made of ticky-tacky where they can hear the neighbors coughing.
But they don’t have parents who can give them a site or had good educations to get a well paid job. Or they may be old or disabled or even the sole breadwinner for their family and not be able to compete in a double income economy.
@Mary Fitzsimons: My house isn’t a special one off in the country. i dont have parentd who can give me a site to build. I done an apprenticeship to get the job I have now so again my parents didn’t pay for my good educations. Well done for jumping to conclusions on everything.
My house will infact be part of a new housing estate that will consist of 84 houses.
You say it’s not free because they pay rent..
Genuine question. What do you call it when someone gives you something that you didn’t have to pay to get it?
They didn’t have to pay to get it means it’s free. They fact they rent after they get it doesn’t take away from from the fact there are handed the keys to a new house with having to pay a cent to get it
@Aidan O’ Neill: And if two or three people are working , that is all assessed as means . A lot of the housing stock has 50+ years of rent paid .
Tenants cannot use their home as an asset, it cannot be borrowed against , it cannot be passed down. Just look at the list of repairs that Fingal Co Co will NOT do on housing stock at least 50yrs old ( a private landlord would be legally bound to complete )
I cannot think of a single problem in our society that is made better by housing insecurity and homelessness . As far as I can see , the only people getting free houses are the landlords whose mortgages are being paid for by HAP and the vulture funds who are bulk buying
@Mike Heelan:
Landlords get free houses.
Social housing tenants pay more than what a landlord pays.
@David Bourke:
That old chestnut again… supply and demand has been proven not to work in the case of housing. 70k+ units were being built per year during he boom and this coincided with peak housing prices. Thats more than double what is being delivered now.
Short term thinking means that the councils are the biggest players in the building, buying and renting of property outside the cities. Low and medium income workers are the victims of this as they cant get local authority housing and are competing directly with local authorities for a shrinking number of houses.
@Aidan O’ Neill: the rent that the scroungers pay is a pittance. I know one guy married with 3 kids but has now finally got a job and he pays 46 euros. Yes 46 euros per month to the council for a 3 bed semi in Dublin 12
A total joke
We don’t need to have a constitutional right to housing being put in place, instead we need people to stop voting in parties that are either a large part landlords, via their members or in bed with greedy developer’s who will build dog house style housing in cities while charging a kings ransom for the privilege. The link between state and developer’s and its seedy relationship is becoming as toxic and infamous as the relationship between church and state back in the day. The fact is the likes of FF who suddenly care about the housing issue only do so cos they face being wiped out in the next election, while the likes of FG couldn’t careless if the common folk owns a house as long as their rich and well off base support are fine.
“Ah, a symbolic referendum, genius. That will keep the heat off us for a year at least, without requiring us to do anything that impacts our property investments”
Fianna Fail are pushing this to look like they’re an “alternative”, as if they haven’t been propping up FG for 5 years now.
“Delimit the right private property in the interests of the common good.” This is straight out of the blood-soaked Stalinist/Leninist communist playbook. Anyone who thinks its a good idea to enshrine in law the right of a government to “delimit private property in the interest of the common good” needs their head examined.
This law would give the government carte blanche/legal right to seize all kinds of private property. We’ve already seen how the government seized public money to pay off their bankers friends for the “common good.” This proposed law would put too much, far too much power, in the hands of the quisling political elite who have sold out Ireland time and time again. Now it seems they’re attempting to legitimize coming for the shirt on your back all in the interests “of the common good.”
@Seamus Hanratty: what do you think eminent domain is, you _____! Except that is used for private business.
@Seamus Hanratty:
Good rant there Seamus, but limtations to private property rights are already permitted in the constitution.
The European Commission will not allow us positively discriminate in favour of Irish resident citizens. This will attract millions of homeless to Ireland. Chaos on the way.
@Neil Neart: There isn’t any issue with EU citizens residing in Ireland unless the administration would treat them inequality to Irish citizens. This is something already in place
@Neil Neart: Well, there could be a clause that you have to be resident in the state for x amount of years in order to avail of this right.
@Neil Neart:
The Commission doesn’t seem too worried about the majority of Local Authorities who are actively discriminating against people who dont have the “local connection” in their county development plans.
This is a clear breach of EU rights of freedom of movement and establishment
You may not be able to evict non-paying renters?
@ChronicAnxiety: They brought that in last year during the first wave of the pandemic, unsurprisingly many landlords left the long term let market, myself included. Not sure what they thought would happen. Did they really think private landlords would house their tenants long term?!
@Sarah Lou:
Good, the more of you we get rid of the better. The home can now go to someone who *owns* the home and will pay less than rent.
@Dean: Yep , you will get a much better deal from the corporate landlords.
Another hair brained idea that will probably make things worse.
I didn’t need any constitutional right to housing for me to decide I needed to put a roof over my head when I was homeless all those years ago,what I did need was the determination and discipline and hard work to make the effort to provide my own home, the cost to the state (taxpayers) don’t even bear thinking if they are on the hook for every Tom dick and Harry who make no effort whatsoever and depend on state handouts for everything,where is the incentive to work and save to buy and own your own property if it is handed to you on a plate,sounds to me like another piece of pie in the sky socialism who love the thought of state control of everything but as always they never even mention the fact its the taxpayers who will end up footing the bill in less wages and never ending higher taxes.
@Richard Mccarthy:
Hi Dick,
Yeah. You’re a great goy all right. Obviously a step above every ‘Tom, Dick, and Harry’ that isn’t as brilliant as you are. The .ucking State does ‘control everything’ to do with housing. That’s the problem. The FGFF ‘Housing Policy’ of Private Landlords [currently 91 in the Dail] is the same British Imperial Absentee Landlordism System of ‘Farming tenants like human livestock’ introduced by Strongbow in 1170 and enacted into the Irish Constitution in 1949 as ‘Land and Property Rights’ for 130k farmers, Big House Estates and urban wealth belt landlords. But FG did not include any basic ‘Housing Rights’ for the vast majority of the population, who are ordinary workers. Before you go online spouting fascist, Right Wing bullshit Richard, try to educate yourself on the subject.
When political motivation is mainly driven by Greed very little is going to change .
Who decides what kind of house I’d be constitutionaly entitled to , see I fancy a nice place in the country ,where I’m from ,my girlfriend wants a place in the city … One each ?
——And if I get a free house in accordance with my constitutional right does that mean that I have a constitutional right to use the doors, stairs and window frames as firewood and then apply for another house in accordance with my constitutional rights?
@John Mc Donagh: N.B. I forgot the floors—-There’s a lot of B.T.M’s in a good floor!
A bit off topic but is there an agreed definition of what it means to be ‘homeless’?
I can see it happening, somebody from Port Laoise gets offered a house in Mullingar so they take a case to the High Court on the basis that their Constitutional Rights are being infringed or some such rubbish.
People saying its so bad that our kids and their kids will suffer. But what if the housing is so bad that we aren’t having any kids to begin with? And only the wealthy will be having them, and only one child at that.
So you and another tenent got to live in the house for 16 years. So basically the tax payers paid your rent and still your moaning.
It’s interesting the application of the constitutional right of private property in some Acts. It seems to be more protection of abusers committing offences rather than constitutional rights.
For instance the Domestic Act, abusers made sure to still have access to their victims with the constitutional right of property as property is only houses. The belongings of the victims of domestic violence are also property as well as the personal and private data that we all keep in our homes.
There are diverse Acts that you inexplicably give free access to people’s homes to the property owner, even in the cases of domestic violence.
In private residential renting the thing is even worse. The definition of landlord is dual and unclear. A landlord can be or not the property owner. However the Act treats landlords as property owners with this constitutional right protection. People renting don’t have the right to decide who hold or not the keys of their homes. An able adult capable to entre in a commercial contract … magically the law treats them as a child unable to look after themselves and their homes. Guilty by default. The Fundamental human rights of presumption of innocence is ignored because of the property article of the constitution.
The new article won’t resolve the underlying issue and the current unconstitutional legislation and its regulations.
For instance the Housing Assistance Payment aka HAP. The privacy of the tenants in temporary economic need is completely ignored because of presumption of a number of things. Here is when the thing turns interesting. If the landlord has breached the tenancy law, the HAP cannot be granted to the tenant. The assistance is paid directly to the landlord under the presumption of all and every single tenant would not use the money to pay their rents. The data from the rent supplement shows that tenants in temporary financial difficulty have been using the money to pay their rents. Tenants with other difficulties might fail to pay the rent, and in this cases is only when the rent is paid directly to the landlords
And then comes the rare interpretation of ownership of property of the scandal of vulture founds, when a debt with a financial entity was understood as property ownership and people lost their homes, their properties without missing a single mortgage repayments
The new article on the constitution wouldn’t fix the strange interpretation in the property
Demand a Referendum on Housing ..
There is no other solution at this stage to clear all the artificial barriers and hurdles put in place to enslave citizens in rental slavery and mortgage hell. Read the Petition…
“They tinker around at the edges with legislation and look surprised when their meagre efforts fail.” – Mark O’Halloran
A referendum is essential to put the balance of power back with the citizen … where clearly for all to see the political/legislative process influenced by non citizen centric interests has failed.
https://www.change.org/p/irish-referendum-on-family-home-special-status
Rachael Walsh, an Assistant Professor of Law at Trinity College Dublin, doesnt get it … silo view.
Having a referendum put to the Irish people on housing is a good call.
have your say