Ms Sinead Kerin:

I thank the committee for inviting us to speak today. I will explain a little about the Mercy Law Resource Centre, MLRC. It is an independent law centre that provides free legal aid and advice to people who are homeless or at risk of becoming homeless. We also seek to advocate changes in policies and laws that unduly and adversely affect people living on the margins of society.

We provide five key services: free legal advice clinics; legal representation in the areas of housing and social welfare law; legal support and training to organisations working in the field of homelessness; policy work; and a befriending service.

I wish to discuss the Second Right to Housing Report: The Right to Housing in Comparative Perspective. I have given a copy of the report to the committee for distribution. The report is a comparative perspective on the right to housing through consideration of the legal systems of Finland, Scotland, France and South Africa. A wide variety of structural and institutional means are applied by which the right can be guaranteed. There is no one-size-fits-all model. The right to housing does not necessarily equate to a significantly increased constitutional role of the Judiciary. While not a panacea, a legally enforceable right to housing provides a valuable floor of protection. The jurisdictions highlighted in this report show that the effectiveness of the right to housing relies heavily on the existence of fundamental and enduring political will and the allocation of resources.

A right to housing in the Constitution would not mean the right to a key to a home for all. A constitutional right to housing would, however, put in place a basic floor of protection. It would require the State in its decisions and policies to protect the right to housing in balance with other rights and to progressively realise the right to housing.

The report considers the position in Finland. Finland's homeless figures have been decreasing for the past eight years. It is a national priority there. They also have a housing first strategy coupled with a constitutional right to housing. Finland has adopted a form of constitutionalism whereby the democratically elected Legislature and an independent Judiciary are entrusted with a shared duty to protect constitutional rights. There is a combination of ex antereview by a constitutional law committee of the parliament, as well as a limited form of post-judicial review. The work of the committee is to scrutinise proposed legislation to ensure it results in the better implementation of socio-economic constitutional rights.

The report considers the position in Scotland. Scotland has the broadest legal protection for those who are homeless and at risk of homelessness. The protection is regarded as one of the strongest in the world. Scotland's statutory right to housing makes local authorities responsible for the long-term rehousing of homeless people and has an interim duty to provide temporary accommodation in emergency situations. Scotland also has a broad definition of those who are homeless. It also has an order that limits the use of bed and breakfast accommodation as emergency accommodation to seven days for families. The limit was reduced this year from 14 days to seven days. There is currently no limit for the use of bed and breakfast accommodation in Ireland. We regularly meet families who have been in bed and breakfast accommodation for two and a half years before they are appropriately socially housed. Scotland has statutory provisions to prevent homelessness. There is a duty on all registered social landlords, private landlords and creditors to notify the relevant local authority when proceedings are raised for the possession of a dwelling house. This may allow the local authority to respond on an individual basis to prevent homelessness occurring. The report from the Dublin Regional Homeless Executive published last week indicates that 48% of families who present as homeless in Ireland are coming from a notice to terminate. In other words, that is the cause of 48% of families becoming homeless. Under Scotland's model, all landlords have to notify the local authority, which may take action to prevent homelessness. That is a strong safeguard.

France has a statutory right to housing known as the droit au logement, DALO, legislation of 2007. This involved a complete overhaul of the French system. The right to decent independent housing is guaranteed by the French state to all people who reside in France. It is exercised through mediation and, if necessary, through an adversarial process. This is patterned after the Scottish model and includes both an entitlement to emergency shelter and a legal cause of action for individuals who have been denied the right to secure long-term housing, thereby helping to ensure security of tenure and accessibility. Protection is given to those who have a priority of need. If the priority of need is met, the qualifying person may file a petition with a local housing mediation committee for urgent rehousing. This committee comprises state representatives, local county and municipal representatives, representatives of social housing organisations, as well as individuals from tenant rights organisations. The committee refer matters to a local authority prefect, who must then find suitable social housing for the applicant within a time period – usually three months. The decision can be judicially reviewed and enforced.

South Africa has a constitutional right to housing. It demonstrates that the right to housing is subject to trial in a court of law. It offers a legal floor of protection. However, it does not relatively alter the balance of power between decisions concerning the allocation of public moneys and resources. I recognise this is a concern in Ireland.

The right to housing is recognised in Europe in the constitutions of Belgium, Finland, Greece, the Netherlands, Portugal, Spain and Sweden. It is recognised in the legislation of Austria, France, Germany, Luxembourg and the United Kingdom. Across the world the right to housing is included in 81 constitutions. The right to adequate housing is provided for in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the European Social Charter.

As an economic and social right in accordance with international human rights, the State's obligation would be to progressively realise the right to the maximum extent of its available resources. The most important definition of the right to housing is the obligation of the State to progressively realise the right to housing to the maximum extent of its available resources and to do this by all appropriate means, including the adoption of legislative measures.

How would the right to housing alleviate the crisis in homelessness? All legislation and policy would have to be proofed to ensure reasonable protection of the right to housing in the same way as other rights are protected. If the State decided to cut funding for hostels for people who are homeless, such a move could be challenged as a breach. The failure of rent supplement and housing assistance payments to meet market rent could be challenged as a breach of the right to housing. The fact that there is no legal aid for those facing evictions in Ireland could be challenged as a breach of the right to housing. More important, a right to housing would require the State, in its decisions and policies, to protect the right to housing in balance with other rights. This would mean that the courts would look at State decisions or policy as to whether they were proportionate by reference to the right. It would mean the Government, in its stated policies and actions, would be obliged to respect the right.

As shown clearly in our last three High Court cases, there is no right to housing in Irish law nor is there a right to shelter. One has no clear legal right to rely on. The fundamental failure by the State to provide adequate emergency accommodation to a family with young children cannot be challenged directly in the courts.

I thank the committee for the invitation to attend today and for the attention that members have given us here. My colleagues and I would welcome questions.