Professor Gerard Whyte:

On some of the questions posed by Senator Moynihan, the first point related to security of tenure and whether that is separate and distinct from adequacy. Our reliance on the international covenant on economic, social and cultural rights addresses that point. Security of tenure under that covenant is seen as an aspect of access to adequate housing. We consciously used language from that covenant so that these sorts of issues would be encompassed in the wording we have proposed.

In terms of examples of court-directed interventions, I do not want to repeat myself but the South African example is probably the most obvious place to go to. It adopted its Constitution in 1996 and made explicit provision for the right of access to adequate housing. That was done while being conscious of the fact that Irish people, judges, lawyers and politicians could look to the South African experience with that wording and see how it panned out there.

As I said earlier, the court engages in a dialogue with the Legislature and Executive. It holds up the policies of the State and tests them against the principle of reasonableness. It is only where the State falls short when there is some sort of egregious neglect of the housing needs of a group of people that the courts will require the authorities to take some steps. It will leave it to the authorities to decide what those steps are, as long as they are reasonable.

On what actions could be taken now that might have been seen as being precluded in the past because of the emphasis on the right to private property, rent freezes were mentioned. The Senator is right. The Blake case was quite a peculiar and specific case in the 1980s. The issue in that case was not so much the concept of a rent freeze per se. Rather, it was the fact that the legislation was old and anachronistic which led to situations where the ability of landlords to charge rent was being restricted when the landlord was more economically needy than the tenant. It was that element of arbitrariness that was the problem with the rent restriction legislation struck down in that case, not the concept of regulating rents per se. If a constitutional referendum was introduced it would set a balance against the right to private property that featured in the Blake case and would enhance the room for manoeuvre that the Oireachtas would have for regulating property rights.