Mr. Adam Boyle:

Dr. Casey has already indicated that there is a similarity between it and the recommended Article 40A. There are a couple of elements with it. To be clear, Home for Good still believes that we need a referendum on a right to housing. We believe that it should be a stand-alone justiciable right. We believe that not just because of the fact that there is some disagreement around the clarity of the constitutional powers but also that we need it as a means of creating impetus for legislation and plans, and a backstop.

We see in Article 45 that there is a suggestion that there would be an impetus on the State to take action on that. It is a little unclear as to how that works. There does not appear to be a backstop. There is some suggestion that there is judicial scrutiny baked into it but it is very unclear on what mechanism that is based and how that would differentiate from the Article 40A recommendation. This is still presumably individual litigants and is not building some sort of system whereby the judges are reviewing a plan of the State. That is not in there.

Another point to clarify is that when we are talking about the idea of an enforceable right to housing and this idea of the backstop, wherein the Government or the Oireachtas is compelled to create a plan which actually and truly respects the fact that having a home is of fundamental importance to quality of life and that access to adequate housing is by "facilitating the development of family, social and community relationships, promotes the common good", that is the impetus that is put on the State. The idea of a backstop is where there is a fundamental failure such that it interferes with the individual rights of a person that they can take proceedings.

It has been suggested that these proceedings will be taken by a certain cohort of society who have the capacity and means to do so or that there is going to be a wave of litigation. The reality is that that the recommended Article 40A is modelled very closely on Article 40.3, where there has not been this wave of litigation. Where litigation has been taken previously on this backstop, it has been focused on those most in need and most impoverished, generally, who will have been the ones who have been failed. It is pretty hard to see where someone with political power will be the one who is fundamentally and seriously failed by the State.

While we are being told there would be litigation under 40A, the Article 45 language is also suggesting that there would be some means of litigating but it is wholly unclear who could litigate that. The thing to note is that in much of the focus on litigation there has been talk about damages and so on, which is perhaps a red herring. In reality, it features throughout the report which refers to what that might look like. Where there is a fundamental failure, it is more likely to be an attempt to get an injunction or, most likely, in the model similar to the right to education, which is an enforceable socioeconomic right that has been in the Constitution for some time, it would be where the courts would be making a declaratory order to say that the State in this case has failed in its responsibilities to this individual and it should remedy the plans and legislation that it has in place. It is unclear if that is the structure that Article 40.5 cases might take. Perhaps Dr. Casey is able to enlighten me a little more on that.