Professor Colm O'Cinneide:

I thank the committee for giving me the opportunity to give evidence this morning from London. I apologise for not being able to attend the meeting in person. Let me begin by giving the committee some idea of my claimed areas of expertise before speaking for a few minutes on the right to housing as it is understood in international human rights law. I will also speak more specifically about proposals to introduce a right to housing into Bunreacht na hÉireann and my take on those proposals.

I lecture, teach and research comparative constitutional and human rights law at University College London. I have also served for ten years between 2006 and 2016 as a member of the European Committee on Social Rights, the Council of Europe expert body that monitors how Ireland and other countries are complying with their obligations under the European Social Charter, including those provisions of the charter, such as Article 16 and Article 31, which protect the right to housing. I was also vice president of the committee for four years in that period.

I will turn to the right to housing as it is understood in international human rights law. Article 11 of the United Nations International Covenant on Economic, Social and Cultural Rights, a key UN human rights instrument, recognises the right to housing as an integral part of the right to an adequate standard of living in general. The United Nations Committee on Economic, Social and Cultural Rights, the expert UN committee in the area, has two general comments on this. They are General Comment No. 4 and General Comment No. 7 from the 1990s, and these clarify the meaning of the concept of a right to housing. It defines the right as an entitlement to live somewhere in security, peace, and dignity. It treats several factors as indicative of "adequate housing", including legal security of tenure, availability of support services, affordability, habitability, accessibility, location and cultural adequacy. Cultural adequacy is relevant for consideration with members of the Traveller community and others, for example. It is emphasised that the right should be secured on a non-discriminatory basis.

When I was a member of the European Committee on Social Rights, it interpreted the equivalent provisions of the European Social Charter in similar terms, emphasising in particular the obligation on states to make steady progress towards giving effect to the right to housing; maintaining meaningful statistics on needs, resources and results; undertaking regular reviews of progress; paying regard to vulnerable individuals; and focusing on the need to ensure adequate, affordable and secure tenure. In the committee's monitoring of the position in Ireland, conclusions of non-conformity were made as late as 2019 with respect to the lack of a supply of adequate housing for vulnerable families, especially local authority housing, and inadequate protection of Traveller families with respect to housing, including regard to eviction conditions.

The committee also expressed concern about the adequacy of housing supply more generally. I have outlined the right to housing as it has been interpreted in international human rights law and as expert bodies have interpreted that right, paying particular attention to the context of Ireland.

Let me turn now to the issue of the potential inclusion of a right to housing in the Irish Constitution. Various constitutions across the world include a right to housing through some provision relating to a right to housing. Provisions either specifically focusing on the right or talking in more general terms about the social obligations of the state are quite common. Most European countries, for example, have at least some provision in their constitution that covers the right to housing to some degree.

There is an interesting debate in the academic literature about the pros and cons of having a right to housing in one's constitution. I will quickly give the committee the pros and the cons as they have emerged in the academic debate and then conclude by giving my specific personal view on these issues.

The major potential concerns about having a right to housing in a constitution is the fear that rights rhetoric will not necessarily translate into effective action. Another concern is that constitutionalising such rights could raise expectations that the State might, in practical terms, might struggle to meet even with the best of intentions. It might also have undesirable legal consequences. It could, for example, result in litigation beginning to distort housing priorities and other problems like that. Those are the major concerns about having a right to housing in a constitutional instrument such as Bunreacht na hÉireann.

There are, however, various pros, some of which have already been put before the committee in this afternoon's session. The right to housing can serve valuable political and symbolic statements, affirm the importance of such rights and can act as a prod to state action. They can rebalance a tendency for constitutional rights to be interpreted as being all about limiting state power and protecting private property, which has been a particular problem in the context of the Irish Constitution, particularly Article 43 on property rights.

Having a right to housing in a constitution can also open up room for some limited judicial and legal protection of such rights, namely, through the form of reasonableness view where manifestly inadequate state action may be exposed to legal challenges in the courts.

Adding together all of those pros and cons, my own view is that good arguments can be made in favour of constitutionalising the right to housing even if its added value will probably be limited, incremental and catalytic, rather than radical and transformative in isolation. Any such constitutional provision will need to be supplemented by legislation, which in legal and practical terms will do much of the heavy lifting.

I will conclude by noting that when I spoke at a conference in University College Dublin, UCD, last month that was organised by the Housing Commission, I recommended that the commission consider drafting a possible referendum proposal that would affirm the right to housing as a fundamental right, make it clear that the primary responsibility for securing enjoyment of this right lies in the hands of the legislative and executive branches of the State; provide that a manifest failure by these branches to take due regard of this duty can be reviewable by the courts; and require the Government to prepare regular action plans on how it is implementing the right through proposed legislation and other measures. In my own view, such a constitutional provision would echo and reflect Ireland's international human rights obligations and secure better enjoyment of the right to housing within Ireland.