Focus Ireland is a core member of a new advocacy group, Home for Good, which is calling on every party to commit to a referendum on the right to housing. In this blog post, Focus Ireland’s Policy Coordinator Rosemary Hennigan outlines why a right to housing is necessary and what needs to change to make this happen.
No matter which party or parties form the next Government, they will face the same underlying circumstances as the last. While pledges to build more housing and tackle the homeless crisis are very welcome, the enormous challenges slowing down our ability to respond to this crisis will need to be tackled if we are to see change.
One of these challenges is the Constitution. Most recently, Sinn Féin’s Rent Freeze legislation has been deemed unconstitutional by both Fine Gael and Fianna Fáil due to the protection of property rights in the Constitution. This presents a serious challenge for potential coalition partners, such as Labour, which has pledged to freeze rents if elected. The fear of property rights cast a chilling effect across the functioning of the last Dáil, with 12 Bills being blocked on constitutional grounds.
What’s the issue?
The Irish Constitution protects property rights under both Article 43 and Article 40.3.2. The State is allowed to limit property rights in the interests of the common good and when the needs of social justice require it. Any limitation on property rights must be proportionate.
In decades past, the Courts have taken a strict view of the protection of property rights, setting a high bar for when those rights can be limited. More recently, the Courts have been deferential to the Oireachtas in determining when property rights can be restricted. As a result, lawyers take different views on when property rights can be restricted, with the most conservative interpretation currently winning out.
Meanwhile, there are serious gaps in Irish law to protect a right to housing for people at risk of or experiencing homelessness. Without a floor of protection through a right to housing, it is very difficult in practice to legally compel the State to take action when a family is homeless.
Without a floor of protection through a right to housing, it is very difficult in practice to legally compel the State to take action when a family is homeless.
Why do we need a referendum?
Some argue that one route to resolving the current impasse on property rights is for the Oireachtas to pass legislation and allow the Supreme Court to determine its constitutionality.
It is the Courts – and not the Attorney General – which determine the constitutionality of laws. However, in practice our political system is caught in a loop which is constraining its law-making power. This is because Article 15.4.1. prohibits the Oireachtas from enacting legislation which is unconstitutional. By convention, the Government will not enact legislation if the Attorney General advises that such legislation is unconstitutional. If the next Government chose not to follow the Attorney General’s direct advice, this would be a departure from convention. In the context of a crisis, there may be very good reasons for doing so, but when assessing this route as a practical option, we must consider whether it’s likely that the next Government will actually do so in practice.
Testing the constitutionality of laws affecting property rights through the Courts is also a piecemeal, slow approach to addressing the issue. It will take time to build up a bank of precedents sufficient to change the current conservative interpretation of Article 43.
A referendum may be a more direct path to change. Importantly, it would also make clear in our Constitution that the Irish people recognise a right to housing for all, which does not displace the protection of property rights, but ensures that they are properly balanced in the interests of the common good.
it would also make clear in our Constitution that the Irish people recognise a right to housing for all
General Election 2020
Labour, the Green Party, Sinn Féin, the Social Democrats, and People Before Profit have all pledged support for a right to housing. Given the likelihood that one of these parties will form a coalition with Fine Gael or Fianna Fáil, there is cause for hope that a referendum on the right to housing will feature in the next Programme for Government.
You can read more about a referendum on the right to housing here: www.homeforgood.ie
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