Ms Rebecca Keatinge:

I thank the committee for inviting Home For Good to discuss this important topic. I am managing solicitor at Mercy Law Resource Centre, which is one of the founding members of Home For Good, and we chair the legal subgroup of which Ms Hennigan and Professor Whyte are members. I refer to the existing protections of private property rights in the Constitution and why a referendum specifically on a stand-alone right to housing is needed, in our view, and I will also to set out the wording that Home For Good is proposing to progress this important discussion.

The Constitution currently provides protection of private property rights in Article 43 and Article 40.3 but there is no equivalent right to housing protected in the Constitution. This means that the starting point of every legal analysis in respect of the regulation of land begins from the perspective of the property owner’s right. While this right may be restricted in the interests of the common good, the starting point for analysis remains the private interest, with the common good only relevant insofar as it justifies the State in limiting this right to private property. As a result, the Constitution perceives property as a private interest held by a rights holder, though this interest is capable of being restricted by the State in appropriate circumstances in the interest of the common good. A difficulty, however, is that it may not be easy in advance to predict when the common good would justify a restriction on the right to private property. Furthermore, it is a complex task to identify in what circumstances such considerations may justify an interference in private property rights.

A more effective and proactive constitutional approach, which we propose, would be to continue the existing protection for private property rights but weigh these against the protection of a right to housing. In this recast scenario, the Legislature and the courts would be tasked with balancing two rights against each other, subject to the usual restrictions around proportionality and rationality. This, in our view, would remove the current overly narrow interpretation of private property rights in the Constitution and enable the Government to respond to the current housing and homelessness crisis in a manner that properly and fairly balances competing interests. Not only does this create a fairer balance, it will better frame the State’s role in housing, not only as a protector of private property rights but as a protector of our human right to safe and secure housing. Thus, the State would have an obligation to provide for the realisation of this right within available resources, analogous to the existing constitutional obligation to provide for free primary education.

Our proposal, therefore, is for a stand-alone right, one that is directly enforceable and that includes a separate statement of the State's obligation to realise that right within available resources. Home For Good proposes the insertion of a new Article 43A, which states:

Housing

Article 43A

1. The State recognises, and shall vindicate, the right of all persons to have access to adequate housing.

2. The State shall, through legislative and other measures, provide for the realisation of this right within its available resources.

In conclusion, we very much welcome this session. It is an occasion to both consult and discuss the formulation of this amendment in public session. The committee's scrutiny is an important preparatory step towards any referendum. We hope the committee's engagement and consideration will progress this important issue and give impetus and a clear timeline within which the referendum can be held. We look forward to engaging with the committee and thank members for their time.