Oireachtas Joint and Select Committees
Tuesday, 3 November 2020
Joint Oireachtas Committee on Housing, Planning and Local Government
Referendum on Right to Housing: Discussion
We are here to discuss the proposed referendum on the right to housing. We are joined, in person, by Mr. Wayne Stanley, Chair, Home for Good Coalition, and Ms Rebecca Keatinge, Mercy Law Research Centre. We are joined, via video link, by Professor Gerry Whyte, Trinity College Dublin, and Ms Rosemary Hennigan, Focus Ireland. I thank them for their attendance and for the submissions they made in advance.
Members have been circulated with the opening statement as well as a more detailed briefing note. I shall first ask the representative of the Home for Good Coalition to make an opening statement and members will then be invited to address their questions. I urge people to limit their questions and answers to five minutes so that we can get around the room for a second round of questions, and follow-up questions.
The witnesses attending in the committee room are protected by absolute privilege in respect of the presentation that they make to the committee. This means that they have an absolute defence against any defamation action for anything they say at the meeting. However, they are expected not to abuse this privilege. It is my duty, as Chair, to ensure that such privilege is not abused and, therefore, if their statements are potentially defamatory regarding an identifiable person or entity they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.
For witnesses attending remotely, there are some limitations to parliamentary privilege and, as such, they may not benefit from the same level of immunity from legal proceedings as enjoyed by a witness who is physically present. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. The opening statements submitted to the committee will be published on the committee's website after the meeting.
I invite Mr. Stanley or Ms Keatinge to make an opening statement on behalf of the Home for Good Coalition. On conclusion we will proceed to questions.
Mr. Wayne Stanley:
My colleague, Ms Keatinge, and I shall share the delivery of our opening statement. As chairperson of the Home for Good Coalition, I extend our thanks to the Oireachtas committee for the invitation to present on this issue of bringing forward the referendum on a right to housing.
Home for Good is a coalition of housing non-governmental organisations or NGOs. They include the Fórsa trade union, academics, activists and lawyers. As a group, we believe that constitutional change is urgently required to rebalance our Constitution, and ensure that enabling the provision of secure and adequate housing be recognised as a central role of the State. We call for a referendum to provide a constitutional amendment that would insert a stand-alone right to housing in our Constitution.
As advocates and experts, we understand how important a right to housing will be for those experiencing homelessness, and for those in inadequate, unaffordable, unsafe, insecure or overcrowded accommodation. A constitutional right to housing will recognise that a balance must be struck between the right to private property, on the one hand, and the right to housing, on the other hand.
The period of the Covid-19 pandemic has starkly demonstrated the importance of an adequate home to keep a person safe. As a group we are more certain than ever of the need to amend the Constitution to ensure that the necessary policies can be implemented to work towards ending the housing exclusion and homelessness that has marred our society for too long, and in the pandemic has left too many vulnerable.
The Home for Good Coalition welcomes the inclusion of a referendum on housing in the programme for Government. We have monitored the discussions of the committee so welcome, within the committee, what appears to us to be a very strong cross-party consensus that this will be a referendum on a right to housing. We now wish to work closely with the committee to get the process under way of determining the wording and aims of this amendment. To that end, we began working with a group of legal experts to develop an amendment that will meet the objectives I have briefly outlined.
Professor Gerry Whyte has joined the meeting via Zoom technology and is professor of law at Trinity College Dublin. He is one of the experts who have given generously of their time.
We are also joined by Rosemary Hennigan, who is part of that legal group and who is a colleague from Focus Ireland. I will hand over to Rebecca Keatinge, who will outline why this referendum should be proposed with a view to having a stand-alone right to housing, and the wording which Home For Good has endorsed and believes best achieves this right.
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:
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.
I thank the witnesses for attending and I am delighted to welcome them to the committee. As the other speakers in my group will indicate, Fianna Fáil is very supportive of this proposal. I come from Dublin Central and I have been a city councillor for 15 years. I come at the housing crisis, therefore, from the lived experience of my constituents over those 15-odd years.
I firmly believe in a couple of things, one of which is that the housing crisis will only be solved if there is the political will to do so. The inclusion of such a commitment in the Constitution would take it away from the transience of day-to-day politics and would make it a State commitment to provide adequate housing to citizens, which is really important. It is only with that strong commitment that it will become something that is perpetuated, which is what we need it to be. As I am not a constitutional lawyer by any stretch of the imagination, I will defer to those with much greater knowledge but I strongly believe that traditionally and historically, everything has been weighted towards the rights of private property, which is understandable. Not to take away from that, we should use this as an opportunity to assert the State's commitment to people's human rights and their rights as individuals to achieve their full potential. Mr. Stanley mentioned the Covid-19 pandemic. Through the housing crisis, I have seen how not having a home or a place that is secure and to which one can go, close the door and have a bit of quiet time and peace of mind - without necessarily owning it - deprives people of their ability to go to school, do their homework, go to college, progress in life or contribute to our society.
As we approach this issue, we should look at asserting that right, namely, the provision of housing and secure homes, as contributing to each individual's right to achieve his or her full potential. I am interested to hear from the lawyers how that can be captured in any amendment. From my understanding, there are very limited examples internationally of such a right being included in constitutions but the witnesses should talk a little about how or if it has worked and how that can be demonstrated. I thank the witnesses for their engagement with the committee and look forward to working with them to deliver this referendum as part of the work in the next four years of the Government.
Mr. Wayne Stanley:
I thank the Senator for her contribution and her reiteration of that commitment. It is really valuable to us to know that we are building the sort of cross-party consensus around the need for this referendum. On the question the Senator raised on its full potential and the examples from other countries, I will defer to Professor Whyte and Ms Keatinge, as the lawyers present, to provide the legal examples.
Ms Rebecca Keatinge:
In respect of Covid-19, we have seen that both our individual and our collective well-being depend on people having secure and safe homes, so it has brought this issue into a sharp focus. We see the referendum as being future-looking. It is to provide that floor of protection against recurring crises looking forward, as the Senator commented.
In other jurisdictions, there are 83 constitutions that protect the right to housing across the world. This is constituted in a whole range of different wordings, and as a sub-group, we have looked at many of those wordings. As an organisation, the Mercy Law Resource Centre produced a report on the protection of the right in other jurisdictions in Europe, including Finland, and the statutory protections that exist in France and Scotland. That details how, in those legal frameworks, the protections exist and the impact they have had. The overall conclusions I would draw from that report and from our own research is that to introduce the protection we would not be an outlier. It is a common protection that exists in modern, well-functioning democracies. The other comment I would make is a bit of a caveat and while Ms Hennigan and Professor Whyte will be able to speak to some of the specific examples, we have a very specific legal framework. It is difficult to import how some things operate in other jurisdictions. For example, Finland has a protection in relation to housing but its laws operate and are formed through a very different process. There is pre-legislative scrutiny to make sure that things are constitution-proofed, and there are other interventions, but we have quite a unique system. We have looked at the South African example, which is obviously a very different context, but that does have some comparators with our own legal system. The committee will see in our note that we have commented on how that example can be used. I will defer now to Professor Whyte and Ms Hennigan might add some further comments.
Professor Gerard Whyte:
If I may, I will comment briefly on the South African experience. When we were drawing up our formula, we looked at the experience in South Africa. The first clause of our proposal is based on section 26 of the South African Constitution. The important point to make is that when it came to judicial enforcement of the right of access to adequate housing, the South African constitutional court used a standard of reasonableness which leaves considerable room to the legislative and executive powers in South Africa to protect or vindicate this particular right.
In one particular instance, the Grootboom case, the South African Supreme Court, using this standard, highlighted an omission from the then policy. It did not address the position of people who are in crisis situations as a result of eviction and who needed emergency accommodation. It stated that the absence of this provision made the existing policy unreasonable or failed to comply with the constitution. The ball was then passed back to the legislature and executive and within a period of four years both at state and provincial level they had adopted policies which addressed this problem. That is how we would see a constitutional guarantee of right of access to adequate housing operating in this jurisdiction as well.
I thank the witnesses for their presentations. I commend the work of Home for Good. It is a really good alliance and initiative to try to bring this issue to the next level. I acknowledge the good campaigning work of other networks, such as Raise the Roof, which has been strongly arguing for such a constitutional referendum. As committee members will know, Sinn Féin has long supported such a referendum. It is important to acknowledge that this is probably the fifth time we have discussed this issue in this room and in this format. We did it on four separate occasions, twice when Mercy Law Resource Centre had published two very good reports and at two other hearings. At some point, we have to stop discussing it in this room, we must have a referendum campaign and try to change the Constitution. Perhaps this will be the Dáil and the committee that pushes it on to the next level.
Three arguments are often used against such a referendum. I will put them to the witnesses because I would like to hear their responses. The first is that such a constitutional right would guarantee everybody in the State the right to a free home and there would be a big queue outside Government Buildings where everybody would looking to get their keys. It is a counter-argument often used by critics. I would like the witnesses to respond specifically to it. Another counter-argument we hear is that a constitutional right to housing will not build any homes and there are many jurisdictions that have such rights and their housing crises are as bad if not worse than ours. I would interested to hear the witnesses' response to that argument. A third argument, which was used heavily by opponents of economic, social and cultural rights in the Constitutional Convention, is that this would be an interference in the role of the Legislature and Government to set policy and it would give the courts undue influence in that area. I will give the witnesses an opportunity to respond to those points.
The witnesses might outline, for those members who do not know, what the outcomes of the Ninth Report of the Convention on the Constitution 2014 were, specifically with respect to this right. More than 80% of people at that convention voted strongly in favour of such a right. I would like to hear the witnesses' thoughts on that. Will they explain, in plain English to those of us who are not lawyers or constitutional experts, why this is valuable, what use this would be to those members of this committee who are genuinely concerned about the state of our housing crisis and would like additional tools to try to resolve those problems?
Mr. Wayne Stanley:
The referendum is to last well beyond Covid-19 but the reason we mentioned Covid-19, and why it stands out so starkly, is we have been using the language of crisis about housing and homelessness for a number of years. Constantly in Oireachtas discussions, when more far-reaching proposals were put forward to address the crisis, the Constitution was held up as the barrier. When the Covid crisis - an almost existential crisis for the State - arose, this barrier was got over. I do not believe the public needs us to be at this level of crisis to be able to address what everyone acknowledges is a housing and homelessness crisis but it seems the Constitution does, or certainly the political system engaging with the Constitution does. This was a watershed moment in my thinking but I would have supported the referendum prior to the onset of Covid-19.
As for the constitutional convention on this issue, the important and interesting aspect of this for me was that when citizens entered an iterative discursive unpacking of all of the issues in the three arguments outlined, which always have had a lot of force and effect, more than 80% of people said we should put it in our Constitution. When citizens enter into this discussion, I believe a referendum on it will be passed because people will see the true value of it.
I have answers for the Deputy's three questions but the lawyers would be much better placed to speak about them, particularly on the right to a free home and interfering with the role of the State. I will hand over to Ms Keatinge and then we might go to all of my colleagues.
Ms Rebecca Keatinge:
I will make a few comments on the three points raised by the Deputy because they are valid concerns that need to be addressed. With regard to whether this gives people the right to a free home, it is certainly not the position. Criticism levelled against such a protection in other countries is that it has not provided people with homes. In this, we are looking at generalised access to housing for people who are not able to provide for their own housing, as well as providing that to an appropriate standard. The second section of our proposed wording refers to available resources. As for this not leading to the building of any homes, it is an enabling provision designed to influence and enable the Government to bring forward progressive policy measures and a legal framework that can develop the housing infrastructure we need to meet the need that is not being met at present.
With regard to interference in the separation of powers, Professor Whyte will pick up on the reasonableness point. He mentioned the South African example. This is an assessment of whether the measures being taken by the State are reasonable. We see cases that would get to the court as being very egregious. In these situations, the courts will simply pass it over to the Legislature or the State to determine what policy responses are required.
Professor Gerard Whyte:
To pick up on the point of interfering with the Legislature and the Executive and to go back to the point I made earlier, we envisage the courts would use the reasonableness standard the Constitutional Court of South Africa has used. This would give rise to a dialogue whereby the courts would indicate whether there was a problem with a particular policy that needed to be addressed and the matter would be passed back to the other two organs of government. We have had experience of this in our Constitution in a different context. If we look at the guarantee of the right to free primary education, in the mid-1990s the High Court in the O'Donoghue case drew attention to the fact that existing educational policy at the time was falling short of the constitutional guarantee because it did not provide properly for children with severe or profound learning difficulties. Mr. Justice O'Hanlon granted a declaration in the High Court to this effect and ultimately it led to the adoption of State policies providing appropriate support for children at the more severe end of the learning difficulty spectrum.
That is a good example, which we have in our constitutional order, of how the courts, the Legislature and the Executive would dialogue about the problem, leaving it ultimately to the Legislature and the Executive to come up with a particular solution.
I thank the witnesses for coming before the committee to discuss this important topic. I respect their bona fides. As a politician of 11 years and a former member of Waterford City and County Council who has dealt with many housing projects, I share their goal that everybody should have secure and adequate housing. However, as a committee it is our job to interrogate that and to ask the hard questions. I preface my questions with those remarks.
I would like to know a little more about the potential impact of such a move and a referendum, assuming it is passed. For example, I would like to know what the witnesses consider to be secure and adequate accommodation. Is it accommodation leased for one year, two years, five years, ten years or on a lifelong basis? Is it a small, cramped apartment or a house that is suitable for a person's current or future needs? If I am an 18-year old who cannot afford to purchase a house, which any young person I know would not be able to do, can I potentially take a case against the State for breaching my constitutional rights in terms of it not being able to provide me with a home, presuming that this referendum is passed?
I have read the opening statements and I note the reference therein to "within available resources" being stated in the proposed amendment. Would the witnesses agree that is very subjective? One could argue, if taking a case against the State on these grounds, that there were plenty of resources available to the State or the Government of the day but, perhaps, they chose not to apply them in the area of housing. Government must make these very difficult decisions at budget time and all of the time, and it may choose to put additional resources into health over housing or into community over another area. As somebody taking a case against the State, I could argue that the resources were plenty but the State chose not to use them in that manner. Are we opening up the State to potential significant legal costs into the future? I would welcome the witnesses' opinions on those matters.
Ms Rosemary Hennigan:
It is good to be here. I thank Senator Cummins for his question. The first point to make in regard to the definition of "adequate" is that primarily it is for the Oireachtas and policymakers to decide what it means. This constitutional provision would require the State to make that decision and to have that debate in a substantive way. If the State fell short on that, it would be open to an individual to challenge that. At that point, the Judiciary would step in with a form of oversight. This is common across many different rights areas which already exist in our Constitution. We would be coming out of the current housing crisis having learned a lot of lessons the hard way. We want to build on that now by having this constitutional amendment such that the State is committed to investing in housing. Professor Whyte may be able to expand further on that.
Professor Gerard Whyte:
The following is a slightly technical point but I will keep it brief. If this constitutional referendum is adopted, we will have a right to private property and a right of access to adequate housing. In that scenario the Oireachtas would be required to balance two competing rights, for example, to regulate property rights and the rights of landlords to vindicate the right of access to adequate housing. The Supreme Court indicated a number of years ago that it takes a very deferential approach to any judgment the Oireachtas would make.
It would only be if the Oireachtas struck a balance which was contrary to reason and fairness that the courts would intervene. Again, it gets back to this point that having a Constitutional provision would require the Oireachtas and the executive to address housing issues and housing crises but they retain considerable room for manoeuvre. The courts would only intervene if there were serious or egregious neglect of the rights of somebody to adequate housing.
I am sorry to cut across Professor Whyte but I am running out of time. I refer specifically to the question of what the witnesses consider secure and adequate housing to be. I appreciate Ms Hennigan's comment that this is a matter for the Oireachtas but I am asking the witnesses their opinion on what constitutes secure and adequate housing.
Professor Gerard Whyte:
I am not an expert on housing policy. I can tell the Senator what the courts might do around it and, as I said, they would use the reasonableness standard. However, the onus will fall back on the Oireachtas and the Executive to come up with an appropriate proposal to vindicate the right.
Ms Rebecca Keatinge:
I might add that in terms of adequate housing, factual scenarios must be looked at against the characteristics of adequate housing that are set out in the International Covenant on Economic, Social and Cultural Rights. It sets out seven different characteristics, which include security of tenure, accessibility, cultural adequacy and location. It is about measuring those factual circumstances the Senator drew out against those characteristics. There is a whole body of opinion that will guide the Government's consideration around what is adequate, so I do not think it is about specifying the size of an apartment.
Ms Rebecca Keatinge:
I refer the Senator to the characteristics. We do not believe it is constructive to define an exact form of accommodation that is adequate because every factual situation is different and diverse. I know this from my own practice. One might have a very vulnerable single mother with a health condition who has young children, or a very able adult male. Those housing needs would be different so I refer the Senator to the characteristics.
Ms Rebecca Keatinge:
There is a very large body of very authoritative opinion which will provide very valuable guidance to anyone who is determining that. The committee will see in Supreme Court and High Court decisions that they refer to the international guidance as guiding principles to enable them. That would be available to the Legislature as well.
Ms Rebecca Keatinge:
I referred to the International Covenant on Economic, Social and Cultural Rights. General Comment No. 4, a seven-page document, sets out what the UN has defined as adequate housing. It is informative and instructive and we refer to it in the course of our own work. On resources, that document also talks about progressive realisation and that is where we have the available resources point. It talks about how a state is expected to achieve this through progressive realisation, within the available resources. I refer the committee to that as well.
I welcome all the representatives from the Home for Good Alliance. It is a very positive movement and I am very familiar with it. I do not need to be convinced because this is critically important. I thank the representatives for their papers and the documents they have submitted, which we have all had an opportunity to read. I want to share some of my observations and comments on this. I have only one question, which I will ask at the end.
All citizens should have a constitutional right to adequate, secure and affordable housing. We know that 80% of the participants in the Convention on the Constitution on this issue said as much and that the right should be enshrined in our Constitution. That is fact and it is worth every member of this committee taking time out to look at the recommendations and the findings. Some 80% of the people who sat on Convention on the Constitution came out strongly in favour of this referendum. Providing for the constitutional right to a home will be challenging. As people identified earlier, it will oblige the State to make reasonable provision to vindicate that right through its policies and its actions. That is reasonable and fair and would be a natural follow-on from if there were a successful outcome in such a referendum.
As has been alluded to, more than 80 countries around the world provide a right to housing in their constitutions. Home for Good identified and considered the issue of providing a constitutional right to housing. Having read some documentation, we acknowledge that this would not be an instant solution and would not provide homes for everyone. However, it lays down a marker and it is a good aspiration. The United Nations special rapporteur on the issue also spoke in favour of it.
We are in the middle of an unprecedented housing and homelessness crisis. That sentence has been rolled out often but it is true. In recent weeks, a number of people who were homeless died. I am not saying they died because they were homeless but they were homeless when they died. There are a number of questions around that and we need to ask them of ourselves.
Thousands of low and middle income families which would once have been able to secure local authority or social and affordable homes are now languishing on never-ending lists. As someone who spent many years in local government and who was involved with the housing sector generally, I know that we have thousands of people with no hope of a home. I am not talking about owning a home. I am not in the business of owning a home. I do not really care who builds a home, be it public, private, social or in a partnership. I am talking about having a place to call home in which people feel safe and secure.
Behind all the homelessness figures, there are lives and real people. For many years now, this committee has spent most of its time discussing housing and homelessness. Too many children have nowhere to sleep at night. A few years ago, the then Government stated that no person would be in a hotel within six months. That never happened. People are in emergency accommodation and bed and breakfast and other inappropriate accommodation. People slept under hedges last night. That is the reality and the crisis we have.
We can bring this crisis under control. We need to believe in ourselves as members of this committee, politicians and advocates for housing. We need to believe we can bring about and effect real change. It can be done. We have land banks of public and private land. I do not want to get hung up on public versus private because I believe the way forward lies in having synergy and co-operation between the private and public sectors to address this issue. We have the capacity to build homes. We have the vision and the land. We need collaboration and we need to change the direction of policy. The most important phrase I am hearing today is that housing is a "human right". It is a human right that people have a place to call home.
On the formulation of the wording, Ms Keatinge indicated there are two aspects to the recommendation, namely, the recognition of directly enforceable rights because that is important and the separate statement about the State's obligation to realise that right within available resources. The latter could be used as a bit of a get-out but that is the reality. How did the witnesses arrive at the formula of words they are recommending? Will they tease that out for me?
To be clear, I fundamentally support citizens having a constitutional right to adequate and reasonable housing. For far too long, we have talked about this crisis across all parties and none. We can now do something about it. I am highly impressed when people such as the witnesses, with their strong credentials in housing and advocacy, come to the table. I thank them for sticking with this issue, pursuing it and, more important, making it simple for people to grasp because that is the real key. I ask Ms Keatinge to respond on the wording.
Ms Rebecca Keatinge:
I will speak to the process involved in how we arrived at this wording. It came in the context of Mercy Law Resource Centre's discussion and examination of other jurisdictions, to which I referred. Home For Good came together and formed a legal subgroup. A specific objective was to examine what wording might work in an Irish context. We examined wording from other constitutions and put together a document featuring the wording from all 81 constitutions. We looked at the Irish legal framework. We brought in legal experts, including Professor Whyte and others, to examine different formulations.
Then we examined our constitutional framework, where it would be best positioned and the best wording. We examined the international guidance I referred to and then arrived at the formulation.
We are putting our formulation out for discussion and for engagement with the committee. We have legal experts engaged but we would be interested in hearing everybody's comments on the formulation so we can arrive at the right wording for this referendum. That is crucial.
I thank the members of Home for Good for attending to share their knowledge and assisting the members in moving forward to hold a referendum on the right to housing in our Constitution. The Green Party argued for this referendum to be included in the programme for Government and therefore welcomes the discourse today to make progress on this human right. As the witnesses mentioned, the Government has an obligation to provide free primary education through the Constitution. This being the case, could the witnesses state why, according to their understanding, a right to housing has never been part of our Constitution? Given the strong political support for a referendum, what could hold up the proposed legislation? How would obstacles be overcome?
Professor Gerard Whyte:
I thank Ms Keatinge. The right to free primary education was an outlier. The Irish Constitution does not specifically recognise any socioeconomic right other than the right to free primary education. At the turn of this century, the Supreme Court indicated it was not appropriate for the courts to identify implied socioeconomic rights. That is why we are in the current circumstances, in which we have to argue for referring the matter to the people to allow them to vote on including a right to adequate housing in the Constitution.
Mr. Wayne Stanley:
I do not believe anything can stop it. If the Oireachtas decides to have a referendum, we will go to the people and we will state our case. When the matter was brought to the Convention on the Constitution, these arguments were all played out. Some very authoritative people on both sides of the argument spoke to the members and there were significant conversations. It was felt that some of the decisions that emerged from that process were far too radical and would never be accepted by the public but they were fully endorsed by the public so I do not believe there is an issue.
To go back to the first question, it seems there is an historical context. When the Constitution was written, food was much more expensive than housing. There was an abundance of housing. We had a very different country and context. For me, part of this process is modernising the Constitution to reflect the world and country we are in now.
On Deputy Duffy's question, that the proposal is now in the programme for Government puts us much farther down the road. Everybody in this room agrees with it and there is considerable popular support for it.
I thank the representatives of Home for Good for attending. I appreciate all the work that has been done on this issue to date. The Social Democrats have been very supportive of a constitutional right to housing. It is good to see near cross-party consensus on this.
According to research carried out by the Oireachtas Library and Research Service, approximately 13 different Bills could not go through the Oireachtas and proceed on the basis of the Constitution, which is certainly one of the reasons we need this referendum. As has been referenced, the Constitutional Convention in 2014 recommended a constitutional amendment to include the right to housing. This has been knocking about and has been before other Oireachtas committees. It is now in the programme for Government and there is a proposed wording for a referendum on the right to housing. What sort of timeframe do our guests think we are looking at? What sort of preparatory work would be needed on the wording and building political consensus? What sort of timeframe are we looking at? We do not know when we can have a referendum because of Covid-19 but if we park that consideration and assume it would not be a factor, how soon could we have a referendum? How soon do our guests think we need to have a referendum on this matter? There is a strong argument from a housing rights perspective. We also know from previous cycles that if commitments included in a programme for Government do not happen within the first couple of years, they will not always be delivered on in the final year, or whatever. What would be our guests' views about the timing of a referendum?
Ms Rosemary Hennigan:
We would like to see progress within a year, if possible. Getting agreement to a date for the referendum would be fantastic because it would give us a framework within which to engage the public and agree a form of wording. A referendum within a year would be our preference but we are bearing in mind difficulties around that.
The Deputy also asked if we feel the referendum is urgent; we absolutely do. A good example of why we think it is urgent is the recent legislation banning evictions that came to an end in July. There is now a much narrower restriction in place as long as level 5 is activated. It is only at the highest level of lockdown that there are protections in place to protect people from homelessness. That is the case because of constitutional concerns. It just shows that not only have there been historical Bills and the Deputy mentioned the Oireachtas research briefing, but there is an ongoing issue even in the midst of a public health crisis. There is a real urgency to this and we would like to see it advanced as soon as possible.
We do not know whether the Constitution is actually a barrier or whether it is a matter of political will and the Constitution is used as a cover. If this is brought in, we would have clarity as to how far the Oireachtas wants to go or not when it comes to housing initiatives. It would remove the constitutional argument as a barrier and something that is used to delay progress. It would be useful because it then becomes purely a matter of what the Oireachtas or the Government want to do or do not want to do.
I will take five minutes. I thank the witnesses from Home for Good. The committee and I firmly believe that everybody needs a home. It is a human right and, as previous speakers said, we are in a different world now. I have been a councillor, Senator and Deputy for more than 20 years and have seen the need and criteria for housing over the years. This referendum has to happen. The policy measure to meet the need is the biggest issue we will have, going forward. That needs to be addressed, whether we are considering people living with disabilities or older people. People are living longer and the housing systems within the 31 local authorities are not catering for that fact. All of us here know people who suffer from mental health problems. Local authorities are not equipped to deal with people who are looking for housing. We must implement policies to meet the needs and criteria of how people are living now.
Families and single people are coming to me now. We have no housing for single people. This needs to happen. We cannot leave it any longer. All of us have a duty to the people of Ireland to meet and to give them this referendum so that we can change policy because we are falling down on policy. We cannot blame our local authorities but we, as a Government, have to do this. One of the speakers said that, hopefully, this should be done within a year. As we know, in 2014 this was spoken about and we said it would happen but we need to make it happen now.
The Government is paying out so much money on rented properties to local authorities through HAPs for people who are looking for housing and we now need a policy to build. To do this we need proper legislation and policies in each local authority. We need to look at a different road and to build more rather than having rented properties.
We also need to look at the eviction ban. I do not want to see anybody facing homelessness or families living in hotels which is a very emotional issue. I am dealing with cases in Carlow where I have particular people who are in homeless situation and are in this position for over a year now. That is unacceptable. I am aware that we cannot solve everything overnight with a referendum but by putting this into the Constitution we can make significant changes. We need a proper referendum and a Constitution in which we can deal with everyday living.
We have lost that. Everybody is doing their best and I am not here to criticise anyone. Due to our situation and the way in which everybody’s livelihood has changed, people who are working and are looking for mortgages cannot get them anymore. These people are working and paying such high rents and we have no proper policy in place for them. We cannot say that they do not have to go on the local authority list because we can now help them to get a mortgage. That is what is happening. This policy with a referendum will play a significant part in people’s lives and will give people a different outlook on what we can do as a Government to give them that better quality of life which people need. Children need to know that they have a home and if we cannot deliver on this, as a Government, we are failing our country.
My questions are as follows. The timescale is of great importance. Speaking on the housing committee is fine but have our Home for Good Coalition guest witnesses been meeting with other organisations? In order for us to move forward and more quickly on this, what do our witnesses believe we need to do now, besides our meeting today? What do they believe we can deliver upon to ensure that we get this referendum and can bring in proper policies to meet the criteria of the changing times that we are living in now? That is the biggest issue here as we are in a completely different world now.
I welcome this proposal and I will give it my full support. I see it in my own constituency of Carlow-Kilkenny where I am dealing with families every day. It is getting harder. It is just one case after another. People are getting angry and think that they are forgotten. We cannot allow this to continue any longer. What do we need to do in order that we are not sitting here again in another six years with no referendum or change in the Constitution, or do not have the proper policies that need to be brought into our local authorities, through the Government? I thank the committee.
Mr. Wayne Stanley:
We need to progress this quickly. Ultimately, it is the Oireachtas that will decide this. I know that this committee engages regularly with the Minister who has oversight of housing. I hope that we can move very quickly to a process where a wording is agreed. Deputy O'Callaghan noted the fact that we are in the middle of a pandemic so there is fluidity around that issue. We could, however, within the next six months decide on a wording and be ready to go with a constitutional referendum. It is then a case of when we schedule it to ensure that we keep everybody safe, which is the priority. I do not see any bar to us deciding this in the next six months. The Department will obviously have its own opinion on that. Do Professor Whyte or Ms Hennigan wish to come in on this point?
My apologies. Senator Moynihan is next. Then we will go to Deputy Gould and then Deputy Higgins and Senator Seery Kearney will share. We are doing okay on time. We have an hour left and five more speakers. Everybody is sticking pretty well to time and we are getting through it. I do not want to stall the conversation by being too strict on time but I want to allow everybody in. I call Senator Moynihan.
I thank the witnesses for their presentation today and their background work on this. I have a couple of questions on how the wording was arrived at and what is included in it. Did the group consider including "security of tenure" in the wording? "Security" and "adequacy" can be two separate things. Did the group give consideration to that? If so, what were the reasons it was decided to go with the more general wording? Did the group consider things such as proportionality to income? One can have adequate housing that is not proportionate to income and one can then be left with income inadequacy in other areas.
Of the 83 constitutions that protect the right to housing, could Ms Keatinge provide a couple of examples of court-directed interventions? What has been the effect of those constitutional protections? There is a good mini-series that came out last year called "Show Me a Hero". There was a federal court-directed construction of public housing in that. This happened in Yonkers, New York in the 1980s. I would be interested in that type of example. In terms of protection of housing in a constitution, what has the outcome of that been? Have there been court directions to build public housing or just to facilitate an environment in which housing is built? Is there an over-reliance on the private sector in that, as sometimes happens in Ireland?
In more general terms, what actions do the witnesses think could have been taken in this country over the last number of years that have not been taken because of what the witnesses consider overly restrictive interpretation of the legal advice? I am particularly interested in the area of a more general eviction ban, not in the context of a pandemic, and also in the area of rent caps and rent freezes. Many people will argue that Blake v. Attorney General was not about rent freezes and that it was a particular judgment which does not mean there is a blanket ban on rent increases.
I am also interested in the area of legislation to back up the amendment because that has worked successfully in other referendums we have had in terms of killing the more vexatious arguments that can come out. We have even heard such arguments in this room today relating to an 18-year-old demanding a house to buy for themselves. I have concerns that some arguments could be made that this could become a developer's charter. A developer could take the State to court saying he or she should be able to build 30 storeys because this will provide housing. We have heard developers use the housing crisis in their arguments to create developers' charters. They said strategic housing development, SHD, would give us many housing units and we have not seen that happen.
Like Deputy O'Callaghan, I would like to hear about the next steps. What would the witnesses like to happen following this meeting? As Deputy Ó Broin said, previous committees have discussed this issue. How do the witnesses think we should proceed?
Mr. Wayne Stanley:
Most of the questions are about legalese. I will refer almost all of them to my colleagues, starting with Professor Whyte.
On the politics of the situation and what the committee can do, we have started a process here today. The quality of the questioning has been useful. In terms of developing wording, this could well be the committee to do that. If this committee could decide on the wording within six months that would be incredibly welcome. I will pass the other substantive questions to Professor Whyte.
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.
Ms Rosemary Hennigan:
There is a benefit to having a slightly more general wording in that our understanding of these things develops over time. If a provision in the Constitution is very specific there is a risk that we are essentially stuck with that wording and an understanding of that wording which is very much rooted in a time and place. The Constitution, we hope, extends over the decades.
Consequently, there is much to be said for leaving some scope for developing that language, in particular through legislation where making changes is much easier. Along with what Professor Whyte mentioned, that is why we went with this general wording.
Regarding what actions could have been taken that have not been so far, I do not need to tell the housing committee about the chilling effect of Article 43 on many measures that might have been introduced, for example, rent freezes, rent caps and anti-eviction measures for families that would otherwise be homeless. A number of policy and legislative proposals over the past few years from Private Members and the Government have stalled, usually on Second Stage, over constitutional concerns. There are two problems with that. First, we do not always see that constitutional advice. Second, we never get into a discussion on the substantive policy itself and whether it would make a difference to the housing crisis and the people affected. Moving us past that point will have a significant benefit in terms of getting to grips with the issues and asking ourselves whether rent freezes would make a difference and do they constitute a substantive policy that we should pursue instead of stopping short at the initial point of it being unconstitutional due to Article 43.
I thank the witnesses for their attendance. This is a major issue. In my maiden speech after I was first elected to Cork City Council in 2009, I spoke on the homelessness and housing crisis. I was actually challenged on that and told that there was no crisis but anyone who was on the ground could see it. Here we are 11 years later in the midst of the worst housing crisis in the history of the State. It is why we support a referendum. My colleague, Deputy Ó Broin, has been a fierce advocate and has led the charge on housing and homelessness.
I wish to ask a few questions. For the people we represent, the housing crisis does not just affect people who are sleeping on the streets or in shelters or emergency accommodation. There can be three generations of the same family in one house. People are sleeping on couches. There are families who have broken up, with the mother and kids in one house and the father on his own or with some of the kids in his parents' house. It is a tragedy that needs to be resolved, which is why this referendum is key. I understand that it will not solve the housing crisis by itself but it will be a tool to help us down the road of putting policies in place whereby we can tackle the crisis in a constructive way.
Due to the Dáil's extension of the eviction ban the week before last, people who had been facing eviction can now stay on into the new year. However, we will still face the issue of notices to quit and evictions in January and February. This major issue needs to be addressed.
Whose job do the witnesses believe it is to define social and affordable housing? The programme for Government states there will be a referendum on housing. Have the witnesses met the Minister to discuss what he considers to be in the programme for Government? Is it a referendum on housing or a referendum on the right to housing? Is it a referendum on housing as a human right? Have the witnesses asked the Minister these questions?
A question was asked about how far the Government wanted to go. We need to move on a referendum as quickly as possible. We want to support the witnesses. I have met them already on this matter. I listened with great interest about the wording and how the witnesses were trying to bring everyone together and progress this. I want to be constructive and we want complete cross-party support in that regard. I would like to hear the witnesses' thoughts on my questions.
Ms Rebecca Keatinge:
I thank the Deputy for his questions and comments. Ms Hennigan may have some remarks to make as well.
We have seen that a right to housing has been included in the programme for Government. We are encouraged by the public statements by the Minister and, most recently, the Tánaiste indicating that this has been interpreted to mean a right to housing. That is our understanding. We very much hope to meet with Minister and we have written to him to seek a meeting. We hope to have a constructive engagement with him and his officials. We are here to present wording and to engage with members of the committee today and we also want to engage with the Minister and his Department so that we can arrive at something that will bring everyone along in what we hope will be an inclusive and constructive process.
In terms of defining social and affordable housing, and to speak to the points raised by Senator Moynihan, the wording we propose is quite stark. It is not detailed because we do not see the Constitution as a place to include a detailed description of a form of housing. We believe that housing should be adequate, a matter to which Professor Whyte spoke, and that is what is defined and explored in General Comment No. 4, the document to which I referred the committee earlier. I refer to words such as "affordable" and "secure". These are all things that we are on board with but we do not feel that the Constitution is the appropriate place to include them. We also think that there are interpretative difficulties with those two words as well. That is my comment on how we have arrived at the wording. Ms Hennigan may have something to add.
Ms Rosemary Hennigan:
I agree with Ms Keatinge. We will be led by the committee in terms of what happens next but, as Mr. Stanley has mentioned, there is a need to have some kind of agreement on a form of wording. We are conscious that it does not have to be our wording, as presented. Members might like to engage with our wording a little further and make their own amendments. Having a form of wording that involves a consensus, particularly on the part of a cross-party committee like this one, would be helpful to us when we meet the Minister and engage with him on a referendum on the right to housing.
I offer our support, and we will do whatever we can. As Deputy Ó Broin said, we feel this is a vital piece of work that needs to be done as quickly as possible and we would prefer to move ahead together.
Ms Rebecca Keatinge:
We are not aware but we would be delighted to engage with anyone who is. It is not a straightforward task, as we have learned through what we are doing. We have had lawyers join us to give their input. We are in a process, as a coalition, of reaching out and building a consensus. Engagement with groups is very much part of our work plan on the wording that we are putting out there.
I thank the Chairman. I thank Ms Keatinge and Mr. Stanley for their presentation. I thank Ms Hennigan and Professor Whyte for their responses. I thank everybody who works in this crucial area for us on the front line.
I am in the same position as everyone else in this room. I want to be part of a society where everybody has access to safe, secure and appropriate accommodation. I do not want to live in a society where families are being raised in hotels or tents are erected in parks and along canals. I want to make sure that we change that and I want to play my part in changing that.
I agree that we, not just as a Government but also as a nation, need a strong statement in respect of housing, not just now but also in the form of a continuing commitment that will tie in successive Governments to policy commitments on the right to adequate housing. The witnesses have clearly explained that a constitutional right to a home does not mean that everybody becomes entitled to a free house. I would love if they could explain a little bit more the additional legal obligations a constitutional right to housing would put on the State. The witnesses have likened it to a right to education. My understanding is that the right to education places an obligation on the State to provide enough schools and sufficient school places. If a right to housing is introduced, would it then be up to the State to provide enough houses and accommodation at all times for our expanding population? Would the responsibility be divided between the private sector developers, whose business it is to build homes, and the State? Would it be a legal position that the buck stops with the State because local authorities are responsible for the zoning of land and the granting of planning permission?
I am also wondering if additional legal obligations would be put on banks to allow people to access mortgages and what impact that would have on people's household budgets. I am interested to hear how "adequate accommodation" would be defined and what legal questions arise in specific circumstances. I have two examples. If a situation arises where a homeless person for whatever reason prefers not to enter accommodation, does that homeless person waive his or her right or can a third party bring a case on his or her behalf? My second example is in the case of family separations and relationship breakdowns. For example, in a situation where a couple or a family were self-sufficient in terms of their housing need but now, unexpectedly, their housing need doubles because they need two homes instead of one, and often two quite large homes in the case of shared custody, what role, if any, would the State be expected to play in intervening in such circumstances?
My questions relate to the impact and implications of a constitutional right to housing. I would like to understand better the witnesses' perspective on that and I thank them.
Ms Rebecca Keatinge:
I may defer to Professor Whyte on the legal obligations on the State and the primary education response.
I will respond briefly on the "adequate accommodation" definition. I pointed out those characteristics of the right, which include security of tenure, accessibility, affordability, availability of infrastructure and cultural adequacy, habitability and location. Those characteristics are the touchstone in terms of what adequate provision would look like.
As for those two examples, the situation of the homeless person who has refused an offer of accommodation is quite familiar to me in my own day-to-day practice. This constitutional protection operates rationally and proportionally, and in circumstances where an offer has been made, I cannot see that it will come to the assistance of that individual in circumstances where that offer was made of adequate housing.
As for the separated family, in the current architecture such a family would be able to register their housing need with the local authority and I am not sure it will recast that in any great sense. I suppose our overarching aim with this is that it influences the broader housing infrastructure and essentially enables more progressive policies that increase housing supply that ultimately mean that those two families will not be waiting for a considerable period in perhaps insecure private rented accommodation and they may be able to get more secure accommodation, be that through greater security of tenure or State housing.
I might pass over to Professor Whyte on the analogy with primary education.
Professor Gerard Whyte:
In relation to primary education, the wording used in the Constitution is that "The State shall provide for free primary education". We do not use that exact formula. We talk about the State recognising and vindicating this right to access adequate housing. What that means is that the State cannot be passive in relation to a housing crisis. It cannot sit on its hands and just decide that it will abdicate its responsibility to the markets. The State has to take some action to ensure everyone has access to adequate housing.
The State can do that, under our wording, in one or both of two ways. Clearly, the State could get involved directly in providing housing. The State did this historically in the past and continues to do it to some level, but the State could ramp up its efforts in that regard in directly providing. Equally, and here one has the analogy with the education clause, the State could support others, perhaps financially, in addressing the need for adequate housing. The obligation, though, is imposed only on the State, at least, directly. This referendum would not impose any direct constitutional obligations, in my opinion anyway, on third parties such as banks. As to whether the State would wish to see fit to legislate for such obligations, if the State saw fit to legislate for such obligations, this clause would protect that legislation but that would be a step beyond the referendum itself or beyond this constitutional clause.
I welcome the witnesses. I would welcome a constitutional right to housing. I have been in construction all my life and I have listened to people in the room talking about building houses and giving people the right to live. When co-living was brought up recently in the Dáil, I voted against it because there should not be any co-living. When we consider the Covid virus today, I do not believe we should have 20 people sharing accommodation and sharing one kitchen and one sitting room. I do not believe in one-bed units and there should be no units that have fewer than two bedrooms. If somebody gets sick, they will need someone to cater for them. In addition, the building cost to build a two-bed unit is only 10% more than that of a one-bed unit.
From a rural point of view and in the context of giving everyone the right to a house, under the Project Ireland 2040 plan, an environmental impact study has to be done for any project that requires planning. I am thinking of rural parts of County Limerick outside the city. If people are looking for the right to housing and the right to live, rural Ireland has no infrastructure and has had no investment in infrastructure over the past ten years, when it has been looking for it. If people want a right to live in Oola, therefore, they cannot live there because there is no infrastructure. Askeaton has been 30 years looking for a sewerage plant and, again, people cannot have a right to live there either. All I am hearing with regard to the right to live is about people within a city area where there is infrastructure. However, for people living in an area that has no public transport, or very little, and no infrastructure, where do they get a right to live if they want to live in their own area? That is my question. Once people leave a large town or city, there is no infrastructure for them to have a right to live in their own area.
If there are estates to be built in certain areas, who will the rights be given to? For example, the local authority might get a parcel of land, although people might have bought land in a certain area or bought a house in the boom times because they wanted a location. We will want to provide housing for everyone, so they can work together in areas. If people have a right to live, do they have a right to live in County Limerick? Do they have a right to live in an area which does not have infrastructure or investment? Is the right to live only where there is infrastructure at the moment?
Ms Rebecca Keatinge:
I absolutely hear the concerns. This is something that needs to be engaged with and needs to be acceptable to everybody. This is not about people who live in cities, although I appreciate the discussion seems to be focused on that.
In terms of "adequacy", we have gone for that word because adequacy does not encompass just simply the physical dimensions of where people are living but also encompasses a range of aspects of the type of housing, including infrastructure. All of those elements would require planning, legislation, resources and political will, so there is a whole element to that which is not within the scope of this proposal. However, I point to the general comments that I highlighted. It is not proposed that this would simply protect a structure; this is designed to promote housing and living in the broad sense of the word. I will pass over to Ms Hennigan.
Ms Rosemary Hennigan:
One interesting way to look at this is to take the example of how the right to housing works in Finland. It is not so much a right to a house in a place of a person's choice but more about building into our laws and planning, and our decisions on budget and infrastructure, a thought and a consideration for housing and for the impact on people of housing.
That is one of the very important effects of the right to housing. In that specific case, when it comes to decisions on investment in Limerick, infrastructure such as roads and all of those kinds of issues, one would ask how that will have an impact on the right to housing locally in Limerick or anywhere in the country. It works more in that sense. Finland, for example, which Ms Keatinge mentioned briefly earlier, has a pre-legislative rights committee, which it set up as a way to vindicate the right to housing in a way that works best for it. An Oireachtas committee such as this one would sit down and consider, when dealing with planning legislation, how it impacts on the right to housing and what needs to be considered to vindicate that right. That is probably the way that we would see the right to housing working in that sort of case.
From the point of view of dereliction in areas, many buildings within our county, Limerick, are under conservation orders. They are already involved in our infrastructure but I am looking at this from a planning law point of view. We have many buildings that are derelict and many under conservation orders. Under the current planning regulations, those buildings cannot be done up. They cannot afford to do up those properties even though they are enrolled within our current infrastructure. It is about getting people into areas where such buildings are already listed in the infrastructure within our areas. We have buildings under conservation orders across the county that cannot be done up because that has to be done in accordance with the conservation laws but it is not affordable to do that under the laws. I believe that conservation buildings in towns and villages that are not iconic should be allowed keep the front facade and the roof structure and then be modernised. We should get people back into villages and living in such buildings, which are already included in our infrastructure. When this is being handed down to our local authorities the investment needs to go back out into the counties. As we can see in this pandemic, people are trying to move out of the cities to areas where they can have more space. The buildings are available. The infrastructure is there, in parts, but it is not in the entire county. I want this to cover everyone.
I thank the Deputy for his comments on that. I have a question on other jurisdictions. Ms Hennigan mentioned Finland. Did it start from the same position as Ireland in having a private property right enshrined in its constitution? Are we starting from the same place as Finland or the other international examples she gave?
I do not have the wording in front of me but I refer to available resources. We need more clarity on what Ms Hennigan means by "available resources".
Following on from Deputy O'Donoghue's point, in terms of our land activation or housing provision policy and our objectives in regard to cost rental or land being subject to CPO, what policies have been stymied by the lack of balance in the Constitution, which is tipped more towards private property rights than the right to housing? What type of policies does she believe would be more successful if there was such a balance in the Constitution?
Ms Rosemary Hennigan:
On Finland, I am not a Finnish expert so if any of my colleagues want to jump in they can do so. It is a different constitutional system. Whenever we look at those international comparators, there are limits to them. We raised them because in creating this sort of a right we have options open to us in terms of how we as a state will go about vindicating that right, especially in terms of economic and social rights. They are different so it does not have to be business as usual in terms of how we interact with them. We can develop our own way of doing that in the best way for Ireland, bearing in mind our own constitutional system. It is worth looking to other jurisdictions in that sense but my colleagues might have more on that for the Chairman.
In terms of the policies that might have been brought forward were it not for this protection of private property rights, Article 43 does have regard for the common good. What we are seeing in many cases is that Bills do not even get past Second Stage.
I have not seen the courts look at Article 43 and determine what the content of it might be, as regards private property rights. That means that we are very much stuck with case law from decades ago which is tied up in different contexts, and that is very important to think about when we are looking at this issue. However, at the same time, there is a very deep political chilling effect from Article 43, which we have seen in a range of different areas, the most recent one being the eviction ban which came to an end in July 2020. As I said, we do not know what the reason was for that, but it is on the record that it was constitutional concerns. I do not want to repeat myself, but in circumstances where there is an ongoing public health threat to the extent that we can close restaurants, pubs, cafés, shops, yet we can only protect the interests of tenants in the private rental market in a very narrow way, then we really have to ask ourselves if Article 43 can have a outside influence on our political culture when it comes to housing policy and law.
Mr. Wayne Stanley:
I am the only non-lawyer in the group, so I ought be very careful about my pronouncements, although I suppose I have more latitude as I am not responsible. I know that in the context of the conversations that were had around it, we wanted to emphasise that ultimately, somebody who is a homeowner currently has the protection of the sanctity of their personal life, and the protection of their private property. Following a change to the Constitution, they would also have the protection of their home and housing in the Constitution, so it would be another addition to the homeowner in that way. Perhaps Professor Whyte wants to build on that comment.
Professor Gerard Whyte:
In addition to the rights that Mr. Stanley has mentioned, there is also an explicit guarantee of the inviolability of the dwelling in Article 40(5), which would obviously remain in the Constitution, and that is an additional protection for homeowners. Therefore, this right to housing does not threaten homeowners - if anything, it enhances the protection available to them under the Constitution.
I have one minute left. Our primary concern here is homelessness and the provision of housing. If this right is put into the Constitution, could it go further in terms of adequate housing, in areas such as universal housing design, adaptability, future use etc.? Could it be called on that it is in the Constitution that we provide adequate housing and housing of an adequate size where we are looking at the average occupancy rates of houses now dropping, so that going forward, planning permissions or applications have to meet adequate design standards?
Mr. Wayne Stanley:
A number of us are members of a European organisation called FEANTSA; those working in housing and homelessness in the French context said one of the things that happened when the French took on the right to housing said it immediately changed the conversation they had with their local authorities, and their capacity and willingness to engage with those issues. I will defer to Professor Whyte or Ms Keatinge on the legal impact of those kind of changes in terms of the long-term viability of different housing options and how we might look at it. I would imagine that certainly constitutional change would increase the capacity for the necessary conversations. I will hand over to Professor Whyte on the legal force and effect of such change.
I thank the witnesses for attending the committee today. First, I wish to state my clear commitment to the right to housing and I am appreciative that it is included in the programme for Government. I am a little disappointed that we have had arguments perhaps being rehearsed here that were made by the previous Government about why this would not happen. This is a Government commitment and I believe all parties to the Government should be committed to championing it, and I hope that we can continue to do that in this committee.
My fear is this will pass but make no practical difference, so let us ensure that when it passes, it will have teeth.
I looked back at the document published by Mercy Law Resource Centre and the Trinity free legal advice centre in 2014, which is a really good synopsis for any members who wish to read about international examples. One of the biggest issues seems to be that of judicial activism. There is a fear that even if this referendum passed and a case was brought to court, and if the State pointed to the homeless assistance payment, HAP, homelessness hubs and emergency accommodation, the case would be lost and there would be no additional obligation. That would be a greatly missed opportunity. Given the State's failure to interpret the terms "public good" or "social justice" in the Constitution in an ambitious way, I am sceptical that it would do differently in this case. That is something we need to think about.
In the environmental area, we talked about moving away from individual change to systems change. Again, the proposed wording leans too heavily on individual change rather than systems change. Local authority members have said the real reason for many difficulties is private property rights. There cannot be a complete ban on evictions or rent increases because of property rights. None of the proposed wording would necessarily allow the Government to do that. We would put the obligation on the Government to provide housing but not give it the tools to balance that against private property rights. I am very concerned about the phrase "within its resources". I would like to remove that and to see how it could be teased out. Why was consideration not given to defining the common good in the context of a right to housing? Even if there is a balance and we still have to pay full market value to developers or property owners, which does not provide any affordability or enable us to deliver housing, that will not achieve what we want either.
We are leaning too strongly towards individual change. I think we should focus a little more on the interpretation of the common good in the context of providing housing, although I greatly appreciate our guests' work.
Ms Rebecca Keatinge:
The Deputy hit on something we discussed in great detail, namely, whether to propose wording that tinkered with Article 43 and whether there was scope to define the common good more explicitly. This was considered through the Home for Good Coalition and the legal subgroup. Ultimately, we came to the conclusion that a stand-alone right would provide much greater protection and have greater force and impact. That is because two stand-alone rights would be competing against each other, rather than the internal tweaking and balance that happens, which has been the block that has been identified and discussed to such an extent during the meeting.
Ms Rebecca Keatinge:
I take the point but that is what the wording is designed to do, where it refers to the State using legislative and other measures. In other forums, such as the Finnish example, there is similar phrasing but it has led to legislation being examined in a broader way and not just in respect of the individual rights. For example, in our report on Finland, the constitutional committee that Ms Hennigan mentioned considered legislation that would give subsidy to entities providing social housing and whether they could sell the properties. It was ultimately decided that would not be consistent with the constitutional protection to the right to housing because it would reduce the stock. That is looking at the broader, more systemic impact it could have. Professor Whyte will speak to the broader constitutional architecture. It is fitting that within the architecture, it is phrased as "all persons", and that it states that all policies and legislative measures will have an impact on persons.
On the Deputy's query about judicial activism, we at Mercy Law Resource Centre have been working very much at the sharp end of the housing crisis. We work with homeless families, many of whom are constituents whom members will have met. The 1988 Act is a discretionary provision. At the moment, we rely on rights around the edges, such as the rights to fair procedure and to family life, but this measure would enable us to tell local authorities they need to act in a manner compatible with the Constitution, which protects access to adequate housing. It would recast how that assessment would be done. As Professor Whyte has highlighted, we do not foresee matters coming before the courts. This is not designed to create legal cases. It will only be in egregious and serious infringements that such cases get to the courts. That is an example from our practice.
Professor Gerard Whyte:
On that point, I think the amendment would enhance the ability of the Oireachtas to legislate in these areas. It goes back to the point we made earlier that where there are two competing constitutional rights, and where the Oireachtas attempts to balance those rights, the court will only upset that legislative balance if the balance is completely contrary to reason, rationality or fairness. Currently, with regard to property rights, there is a guarantee of private property qualified by the concept of the common good. That is a different situation, and we do not really have enough detail as to what the common good requires in this specific situation to predict confidently that legislation restricting private property rights would pass. However, in a scenario in which we are told legislation will be sustained by the courts unless it is unreasonable and contrary to common sense, that gives a lot of room for the Oireachtas to legislate on security of tenure, rent freezes and the like. Therefore, from a technical point of view, I think that inserting in the Constitution this specific right to access to adequate housing would address the issue of the perceived limits on the ability of the Oireachtas to legislate in this area.
I thank the witnesses for their presentation and all the background documentation, which I have read. I completely support the objective of prioritising housing and security of tenure. Everyone should have the right to a secure home. I have been involved in the provision of social housing, worked with the homeless and, as a public representative, advocated on behalf of families in need. I therefore support absolutely the spirit of the witnesses' presentation and the work they are doing. Over recent years, as we have emerged from an economic crisis, and it is the economic element I wish to address, we have seen a rise year on year in the provision of housing, with this year seeing the largest ever commitment in that regard.
My question arises from the witnesses' positioning of the proposed amendment under Article 43 and the use of its placement within that article. I hear them in that this is a qualifying right to the interpretation of the right to private property and how that would be applied. I hear them also on the chilling effect it has and respect that contention. To be fair, as a lawyer who has worked in a pro bonocapacity trying to keep people in their homes as a consequence of sub-prime lending and so on, I could see it being a really useful tool for me arguing in court. The wording of it does raise concern, however. There is a lack of precision in the term "adequate housing". I understand why at a constitutional level one would want as broad a church as possible. Then, however, we get into what is adequate. How does any Government start legislating as to what is adequate? Does it mean that children have to have a bedroom each? I think we could get into that, and that concerns me.
The greater concern I have with the amendment, however, are the words "within the available resources". That means we will have competing rights within a budget or within the context of a pandemic or an economic crisis arising from an exuberance of policy. One of my judicial heroes is Mr. Justice Peter Kelly. He got himself into a lot of hot water back in 2000 by attempting to injunct Ministers in the application of policy on care packages for young people.
Did the witnesses consider perhaps addressing Article 45 instead and looking at invigorating that?
Any Government putting forward a budget must look at competing spends. My concern is this could go in, and its aspiration is fantastic and the right is fantastic, but it could end up being non-justiciable because we will have a budget competition. If we were addressing the idea of social policy, and Article 45 specifically speaks to the directive of social policy, why not then include housing or a roof over people's head? I assume the amendment would not propose that no one would ever rent again and that we would arrive at such nirvana. There will always be different types of tenure, whether that is home ownership or rental. Was any consideration given to the possibility of ensuring that in the competing budgetary rights we could move the right to a roof over people's heads higher, with the Government being directive on social policy in this respect? Consequently, flowing from this we could have the administration of budget happening on a particular hierarchy, such as homes always being above law and order. We could look at it in this way, whereby a radical overhaul of Article 45 would be a consideration. I am interested to hear what the witnesses have to say on this.
Professor Gerard Whyte:
The suggestion it might be included in Article 45 would present some problems for the group because those particular principles are stated in the Constitution to be solely for the guidance of the Oireachtas in making laws. They cannot be relied on by the courts when the courts are scrutinising the laws the Oireachtas has made. If this clause were to go into Article 45 and if, at some point, there was a concern that some piece of legislation did not adequately vindicate the right to access adequate housing, its location in Article 45 would mean the courts could not entertain that argument. This is why we consciously decided it should be a stand-alone right. We propose it would have its own clause in the Constitution. The numeration simply reflects the fact that it comes between the existing Article 43 on private property and Article 44 on the completely unrelated issue of religion. Saying it is Article 43A does not mean it is a subordinate part of the guarantee of private property. If this were to go through they would be two separate provisions, in the same way that children's rights are protected in a separate provision in Article 42A of the Constitution.
I was not suggesting that it was a subordinate right within Article 43 but it is being advanced as a qualifying provision. It comes back to the fact that the right is being attached to individuals and not to the Oireachtas. I would have thought putting the impetus and obligation on the Oireachtas would be a more secure means of ensuring it would be more effective in budgetary allocation. If we are always going to have the qualification of available resources it does not secure the right.
Ms Rosemary Hennigan:
One of the common arguments against socioeconomic rights is that they involve judges and the Judiciary overstepping the mark when it comes to the separation of powers and taking over from the Oireachtas what is ultimately a decision for the democratic organs of government with the benefit of all of the institutional knowledge the Government has, which is the expenditure of public funds. The reason we included the availability of resources was more to safeguard the role of the Oireachtas within it. It is also to draw out the reality that a court will not overstep these bounds. It is not usually what our courts do. We have made this explicit within the clause but, in any event, it is not something the courts generally do as I am sure the Senator is aware. A constitutional amendment can only do so much. It can lead and create a political culture, and this is what we hope to do, but it very much will depend on the political will in the Oireachtas to act on it. When it comes to budgetary decisions and how allocations are made the Constitution is not the best place to do it.
All it can do is set out a value, a principle and a framework for what we, the people, think should be done. We then hand over those decisions to the Oireachtas. I understand what the Senator means about it positioning the right in terms of individuals' access to courts. We see it as doing both. It both empowers the Oireachtas to better legislate in this area and, in the extreme cases which Ms Keatinge mentioned, it gives an individual the ability to step forward and declare that he or she has fallen through the gaps and has a right to housing that has not been vindicated.
My concern is in regard to other arenas of law such as in the X case and the court determining a right within the Constitution. It was not until the Fine Gael-led Government came to power that that was brought into law. There can be a 20-year gap. Just because something is written into the Constitution does not mean it will happen.
We are over time on this particular point. The Senator raised an important point that will need to be examined further. There are only two minutes remaining. I will allow a brief question from Deputy Ó Broin, followed by Senator Mary Fitzpatrick.
I would like to make a brief comment and a suggestion. Something very significant has happened in this meeting today. This is the first time in my five years in the Oireachtas that a clear majority of the housing committee has spoken in favour of the holding of a referendum to enshrine the right to housing in the Constitution. That is really significant. I say that while not in any way questioning the motives of other members who have different views or are still teasing out the issue because that is the purpose of this committee. We tried very hard to get that commitment into the 2016 report of the Committee on Housing and Homelessness but we did not succeed. We also tried to get into subsequent documents of the committee but we could not do that either. This is a really positive moment.
I suggest that on foot of this meeting, the Chairman write to the Minister setting out a flavour of the different views of the committee, because all of the views of the committee are valid, but also urging him to meet the Home for Good Coalition at the earliest available opportunity to take this dialogue to the next step. I do not think the committee should commit to a position one way or another because there are differing views but the Chairman could set out a cross-section of our views and ask the Minister to meet the Home for Good Coalition. I think that would be a positive outcome from what has been a very good discussion today.
On behalf of the Fianna Fáil group, I thank all of the witnesses for being here today. I agree with Deputy Ó Broin that this has been a very worthwhile meeting and that there is consensus but it is important that we tease out the issue further. The Constitution is very precious and important. Any proposed changes to it must be well-thought out and well balanced. I agree there is broad consensus and that the committee should write to the Minister. My colleagues and I will take up the matter with the Taoiseach and the Minister, Deputy O'Brien. We should be ambitious. Once Cover is over, let us be ready and make this happen. Let us give people the opportunity to amend our Constitution to reflect our societal values. There will obviously be a great deal of work for politicians to do, not just in this Oireachtas but in future Oireachtais, to deliver on the constitutional commitment that I believe the people of Ireland will approve. Go raibh míle maith agaibh go léir.
I was going to suggest, as Deputy Ó Broin requested, that the committee write to the Minister and ask him to meet the Home for Good Coalition to discuss this further. It is a good suggestion that we also write to the Minister providing him with an outline of what was discussed by the committee today and asking him to set out how the Department is progressing that action in the programme for Government. It may be working on a proposal in parallel. We need to know what wording it is proposing. There may be many iterations of the wording as we progress this matter.
I thank the Home for Good Coalition for attending the meeting today. The meeting has been really informative and helpful. As Deputy Ó Broin said, this is a very positive step in housing as a right. We have made good progress here today.