Oireachtas Joint and Select Committees
Tuesday, 5 July 2022
Joint Oireachtas Committee on Housing, Planning and Local Government
Right to Housing: Discussion
I welcome members to the meeting to discuss the right to housing. We are joined in the room by Mr. Wayne Stanley, Ms Aoife Kelly-Desmond and Mr. Gavin Elliot from Home for Good and we are joined remotely by Professor Colm O'Cinneide of University College London. The opening statements and briefings have been circulated to members.
Before we begin I remind members of the constitutional requirement that they must be physically present within the confines of the place where Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. Witnesses attending in the committee room are protected by absolute privilege in respect of their contribution to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy. It is my duty as Chair to ensure this privilege is not abused. Therefore, if their statements are potentially defamatory in regard to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction. Members and witnesses 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.
I will ask the witnesses to make their opening statements and I will ask Home for Good to go first, followed by Professor O'Cinneide. Then we will go to questions and answers with the members, who will have a seven-minute slot for both the question and the answer. I call Mr. Stanley on behalf of Home for Good and he is welcome back to the Oireachtas. I thank him for his attendance today.
Mr. Wayne Stanley:
I thank the committee for the invitation. My colleague, Ms Kelly-Desmond, and I will give the opening statement together. Home for Good would like to extend our thanks to the Committee for the invitation to present on the right to housing and particularly the ongoing engagement of committee members and the committee as a whole on this important topic. As the committee is aware Home for Good is a coalition of organisations and individuals who believe that constitutional change is needed as an essential underpinning for any programme to tackle our housing and homelessness crisis. Many of our members are advocates from front-line organisations and through that work, we understand how important a right to housing is for those experiencing housing exclusion, homelessness and for those living in inadequate, unsafe, insecure or overcrowded accommodation. More generally, as citizens we understand the importance of a home as the fundamental social and economic infrastructure of our society. The meaning of home became abundantly clear during the Covid-19 pandemic, which starkly demonstrated the importance of an adequate home to keep ourselves and our families safe. We advocated for a redoubling of efforts to assist those in housing distress during and subsequent to the pandemic. We are more certain than ever of the need to amend our Constitution to ensure that the necessary policies can be implemented to end the housing and homelessness crisis in Ireland. The last number of months have seen an unwinding of Covid-19 restrictions in the area of housing, as many areas of life return to some version of normal. What we have seen in housing, however, is a return to crisis.
Homelessness in the past six months has increased by 16% and we now have more than 10,000 people living in emergency homeless accommodation, including more than 3,000 children. The cost of housing and rent has continued to grow and supply has constricted further. In the first three months of this year, 1,132 notices to quit have been issued, the highest number since data collection started in 2019. There were 3,818 eviction notices issued since the Covid-19 ban on evictions was lifted last April.
The recent heightening of the housing crisis has had a number of driving factors but we firmly believe the seeds of this crisis were sown in the belief that "a home" is not understood as central to our social infrastructure and it is not a right for individuals and families in Ireland. More generally, the lack of balance in our Constitution has facilitated the development of a housing system based on financial commodification to a level that now undermines the capacity of too many people to participate fully in society.
Home for Good has welcomed the recent support for and the developments towards a referendum on the right to housing, particularly the launch of the Housing Commission, which has included a sub-committee tasked to bring forward wording for a referendum on housing. The Housing Commission is due to present its deliberations on a referendum on housing in the coming months. Housing in Ireland is truly in a state of crisis at all levels and a referendum on the right to housing cannot be delayed. We hope that the recommendations from this upcoming report lead to timely progress towards a positive referendum on the right to housing.
Home for Good wants to ensure that two key actions are taken as next steps to progress the right to housing. There should be a referendum called as soon as is practical after the commission publishes its report. To ensure this, we hope the commission in its report will includes a positive proposal for wording for a referendum on the right to housing. From our perspective, this would ideally build upon the work that Home for Good has done in this area, but we of course remain open to engagement with the commission.
The sense of urgency for a referendum on a right to Housing is driven by the ongoing housing crisis and we cannot afford postponement. In 2018, during his time as Taoiseach, the current Tánaiste, Deputy Leo Varadkar, declared a national homelessness and housing crisis in Ireland. More than four years later, we have over 10,000 people living in emergency homeless accommodation, record high rental costs and an increasingly unstable housing market.
The next issue is why we need a referendum on the right to housing, and Ms Kelly-Desmond will speak to that.
Ms Aoife Kelly-Desmond:
We have spoken for a few minutes about the level of the housing crisis and I will speak to why we feel specifically that a referendum on a right to housing is essential in addressing the crisis.
At a really basic level, the Constitution is a statement of fundamental values of the people of Ireland. It shapes Government policy and legislation and it provides an important bedrock of protection for basic rights that transcends individual Governments or particular developments of the day.
People experiencing ongoing housing insecurity in the turbulent market we have are failed by a gap in our Constitution as it addresses housing. Currently, the Constitution is fundamentally imbalanced towards private property rights without any equivalent right to housing being recognised either explicitly or implicitly. This means the starting point of Government policy and legal analysis around the regulation of land and property is very much from the perspective of a property owner’s right. There are restrictions in the Constitution relating to property rights with respect to the common good and in particular scenarios, it is very much a secondary perspective. In simpler terms, the way housing is addressed under the Constitution now is very much through the lens of being a commodity and asset rather than as something essential for people in meeting their fundamental rights.
The imbalance in the Constitution has proven repeatedly to fail people in need of housing in this country perpetuating issues like the high levels of vacancy and dereliction that we see across the country. It increases land hoarding and it has contributed to the housing crisis on many levels. That said, including a right to housing in the Constitution will not fix the housing crisis overnight; it has an enormous potential, however, to be a catalyst for change. It would be a profound statement by the people of Ireland through a referendum that they do not accept an endemic housing crisis as a normal or natural state of affairs.
Including a right to housing in our Constitution would place an onus on the State to develop and implement policy and practice to ensure the right to adequate housing is met and it is available to people in Ireland, now and into the future. As political and policy actors, members of the committee have a unique understanding of the capacity for issues, no matter the importance, to fall between stools of responsibilities. Recognising a right to housing through the Constitution would bring a very clear message to all levels of Government that a guiding principle in their actions must be the consideration of how to meet a right to housing. In more practical terms, this means a renewed respect for the need for housing to be accessible, affordable and available to people, and to meet the different levels of need we have in society. That may be through universal design principles for people with disabilities, housing for people who are part of our aging population or dealing with families of different sizes and constitutions.
Home for Good wishes to work closely with this committee and the Housing Commission in a process to reach wording for a constitutional amendment that could recognise this right in a meaningful and impactful way. Ultimately, it is about bringing about a referendum that can be won to have such a right recognised. In closing, I will read into the record the proposed amendment that Home for Good has formulated. It would be the insertion of a new Article 43A stating:
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.
I thank the committee.
Professor Colm O'Cinneide:
I thank the committee for giving me the opportunity to give evidence this morning from London. I apologise for not being able to attend the meeting in person. Let me begin by giving the committee some idea of my claimed areas of expertise before speaking for a few minutes on the right to housing as it is understood in international human rights law. I will also speak more specifically about proposals to introduce a right to housing into Bunreacht na hÉireann and my take on those proposals.
I lecture, teach and research comparative constitutional and human rights law at University College London. I have also served for ten years between 2006 and 2016 as a member of the European Committee on Social Rights, the Council of Europe expert body that monitors how Ireland and other countries are complying with their obligations under the European Social Charter, including those provisions of the charter, such as Article 16 and Article 31, which protect the right to housing. I was also vice president of the committee for four years in that period.
I will turn to the right to housing as it is understood in international human rights law. Article 11 of the United Nations International Covenant on Economic, Social and Cultural Rights, a key UN human rights instrument, recognises the right to housing as an integral part of the right to an adequate standard of living in general. The United Nations Committee on Economic, Social and Cultural Rights, the expert UN committee in the area, has two general comments on this. They are General Comment No. 4 and General Comment No. 7 from the 1990s, and these clarify the meaning of the concept of a right to housing. It defines the right as an entitlement to live somewhere in security, peace, and dignity. It treats several factors as indicative of "adequate housing", including legal security of tenure, availability of support services, affordability, habitability, accessibility, location and cultural adequacy. Cultural adequacy is relevant for consideration with members of the Traveller community and others, for example. It is emphasised that the right should be secured on a non-discriminatory basis.
When I was a member of the European Committee on Social Rights, it interpreted the equivalent provisions of the European Social Charter in similar terms, emphasising in particular the obligation on states to make steady progress towards giving effect to the right to housing; maintaining meaningful statistics on needs, resources and results; undertaking regular reviews of progress; paying regard to vulnerable individuals; and focusing on the need to ensure adequate, affordable and secure tenure. In the committee's monitoring of the position in Ireland, conclusions of non-conformity were made as late as 2019 with respect to the lack of a supply of adequate housing for vulnerable families, especially local authority housing, and inadequate protection of Traveller families with respect to housing, including regard to eviction conditions.
The committee also expressed concern about the adequacy of housing supply more generally. I have outlined the right to housing as it has been interpreted in international human rights law and as expert bodies have interpreted that right, paying particular attention to the context of Ireland.
Let me turn now to the issue of the potential inclusion of a right to housing in the Irish Constitution. Various constitutions across the world include a right to housing through some provision relating to a right to housing. Provisions either specifically focusing on the right or talking in more general terms about the social obligations of the state are quite common. Most European countries, for example, have at least some provision in their constitution that covers the right to housing to some degree.
There is an interesting debate in the academic literature about the pros and cons of having a right to housing in one's constitution. I will quickly give the committee the pros and the cons as they have emerged in the academic debate and then conclude by giving my specific personal view on these issues.
The major potential concerns about having a right to housing in a constitution is the fear that rights rhetoric will not necessarily translate into effective action. Another concern is that constitutionalising such rights could raise expectations that the State might, in practical terms, might struggle to meet even with the best of intentions. It might also have undesirable legal consequences. It could, for example, result in litigation beginning to distort housing priorities and other problems like that. Those are the major concerns about having a right to housing in a constitutional instrument such as Bunreacht na hÉireann.
There are, however, various pros, some of which have already been put before the committee in this afternoon's session. The right to housing can serve valuable political and symbolic statements, affirm the importance of such rights and can act as a prod to state action. They can rebalance a tendency for constitutional rights to be interpreted as being all about limiting state power and protecting private property, which has been a particular problem in the context of the Irish Constitution, particularly Article 43 on property rights.
Having a right to housing in a constitution can also open up room for some limited judicial and legal protection of such rights, namely, through the form of reasonableness view where manifestly inadequate state action may be exposed to legal challenges in the courts.
Adding together all of those pros and cons, my own view is that good arguments can be made in favour of constitutionalising the right to housing even if its added value will probably be limited, incremental and catalytic, rather than radical and transformative in isolation. Any such constitutional provision will need to be supplemented by legislation, which in legal and practical terms will do much of the heavy lifting.
I will conclude by noting that when I spoke at a conference in University College Dublin, UCD, last month that was organised by the Housing Commission, I recommended that the commission consider drafting a possible referendum proposal that would affirm the right to housing as a fundamental right, make it clear that the primary responsibility for securing enjoyment of this right lies in the hands of the legislative and executive branches of the State; provide that a manifest failure by these branches to take due regard of this duty can be reviewable by the courts; and require the Government to prepare regular action plans on how it is implementing the right through proposed legislation and other measures. In my own view, such a constitutional provision would echo and reflect Ireland's international human rights obligations and secure better enjoyment of the right to housing within Ireland.
I thank all the witnesses for attending today. I am delighted that this is at least the second time that this committee has met to discuss the right to housing since being established, which reflects the importance that this committee places on that right. The programme for Government contains a commitment to granting a right to housing and, as part of the Housing for All policy, the establishment of the Housing Commission.
Like many members here, I attended the conference at UCD which was organised by the Housing Commission. The conference helped to move the debate on and it is good that this committee has set aside time for this discussion today. The public consultation on a referendum on housing in Ireland is now open and invites members of the public to make a submission by Friday, 2 September. We should all encourage the members of the public to make a submission.
Professor O'Cinneide has clearly set out the delicate balancing act required when setting people's expectations as to what can be achieved by inserting a right to housing in Bunreacht na hÉireann. He talked about the European Social Charter and the review of previous housing initiatives. It struck me, having read that, that it did not review the initiatives under Housing for All and I ask him to confirm that for this committee, as that would be important. The Housing for All plan has commenced and is far from complete but it marks a very significant change in the State's approach to the delivery of housing. It is important for this committee to understand that when Professor O'Cinneide referenced criticisms, whether those criticisms reviewed Housing for All and its commitments.
Professor O'Cinneide has said the value of having a commitment and an objective in the Constitution or Bunreacht na hÉireann is largely symbolic but balanced his comment by saying that it can act as a catalyst. I ask him to elaborate on how it has been used as a catalyst for change in other jurisdictions.
I commend Home for Good and all its members, who are in the trenches on a daily basis trying to help people who struggle with the housing crisis and emergency. One of its delegation clearly said that "including a right to housing in the Constitution will not fix the housing crisis". The delegation has recognised that changes have been made to housing policy. What tangible good would the right bring to the people who are in the grips of the housing crisis?
Professor Colm O'Cinneide:
I thank the Senator for her excellent questions. In respect of her first question, she is right that in its 2019 conclusions, the European committee noted that Housing for All had been introduced and was being implemented. The committee effectively reserved its decision in respect of that and asked the Irish State to keep it updated about progress. It did not make any findings about the wider housing situation in Ireland pending information on how Housing for All has been rolled out. The 2019 conclusions, effectively, suspend any opinion on the implementation of Housing for All and note that the strategy was introduced to engage with the housing problems in Ireland. The committee's conclusions noted that inadequate housing for vulnerable groups and inadequate protection for Traveller families, in particular, are a long-standing problem. The 2019 conclusions relate to earlier conclusions that had run through for most of the 2010s.
The Senator asked the key question of how would a right to housing, if included in the Constitution, act as a catalyst for change. The last thing that anyone wants is to have a constitutional dead letter, to have something nice inserted in the Constitution that just sits there but does not do much good. My own view, which is based on research into comparative developments in this area in Europe and the wider world, is that there are two general ways in which a right to housing can act as a catalyst.
I will use the simple categories of "political" and "legal" to illustrate the two ways. Politically, a right to housing can act as a focus for political change. The symbolic statement that this right is important, that it is a constitutional priority, means that it can be invoked by political parties, NGO groups, trade unions and others to push for change, and it also acts as a focus within the legislative branches of parliament. It is quite striking to me, for example, in studying how equivalent institutions to these work across continental Europe, that there is often a strong focus on what are known as the social-state provisions of continental European constitutions. I refer to the provisions of the Italian state constitution or the social-state provisions of the German constitution that commit the state to advancing social progress. Having constitutional provisions there in relation to something like the right to housing can act as the focus for legislative review and scrutiny, which then in turn can feed down through the state processes in general.
The second aspect is legal. Having a right to housing means that the courts can take it into account when, for example, interpreting property rights. It can help to rebalance or compensate for any excessive focus on private property rights that might hamper a more reasonable statewide housing strategy. It can also empower the courts to deal with manifest failures by the state of blatantly inadequate housing such as clear manifest failure by local authorities to do the job they should be doing in respect of housing or clear failure by Departments to take the action they should be taking. In other words, a right to housing can have catalytic effects in both the political and legal spheres. It is not just a matter of law and lawyers. In fact, in many ways, if it all works according to plan, its primary effect may actually be in the sphere of politics, administration and policy. That would be a good thing.
I thank Professor O'Cinneide. We are almost out of time on that slot. The witnesses can briefly answer the question from Senator Fitzpatrick or if they wish to take more time we can return to it. We will get an opportunity to do so.
Mr. Wayne Stanley:
First, I think Professor O'Cinneide has answered very effectively. I probably would have given practical Irish examples to illustrate the points that he has made. The comparator with the way education is treated in Ireland is one good example. There is also research, which perhaps I will return to, that was done on rights-based services in homelessness and the impact that had on the person. While we have very good homeless services in Ireland, there are very good homeless services in Scotland, for example, where it is a rights-based system. The sense of ownership of the right in Scotland is reflected in research, which is valuable. I do not know if anybody wants to add to that.
We will return to it. I would like to hear more on it and I do not want to rush the witnesses. Although that slot has finished, I assure Senator Fitzpatrick that we will return to the practical examples later.
I thank both the professor and Home for Good for their presentations. Senator Fitzpatrick is correct: this is the second hearing in this Dáil but in fact we have been discussing the matter for six years, since 2016. The special Dáil Committee on Housing and Homelessness had a very significant discussion of these issues. This is the third programme for Government that has a reference to a referendum on housing or the right to housing. Hopefully, it will be third time lucky this time round.
I will make a couple of comments and then ask some questions. I have always been of the view that our Constitution is not as restrictive as some people claim, in particular those politicians who hide behind the Constitution as an excuse not to do things. Therefore, it is important to put on record that there is more latitude within the Constitution to take action with respect to property rights to meet housing need than some people believe. Rachel Kenny, among others, has publicly made that point very eloquently.
Having said that, I am strongly in favour of holding the referendum. The sooner it comes the better. If we have a cross-party Government and Opposition campaign supported by civil society, that is the best outcome for all of us. We are all eagerly awaiting the recommendations of the Housing Commission. Like Senator Fitzpatrick, I too would encourage people to log on to its website and to get involved in the public consultation because that is very important.
Professor O'Cinneide has given the most eloquent case for the value of it. It is important that as a committee and as politicians we do not overstate it. I remember when the Mercy Law Resource Centre, which has done considerable research work on this, came before the committee many years ago, one of the phrases that it used that stuck with me was if we get the referendum and we secure the right to housing in the Constitution, we are not going to have a queue of people around the Custom House the following day looking for their keys to a free home. That is not what it means. We do need to say that because some of the people who do not like the idea will misrepresent it as that. The phrase the centre went on to use was about placing an obligation in the Constitution on governments to progressively vindicate and realise that right, in particular for those with the greatest level of housing need, into the future. That is the way we need to think about it.
Likewise, it is only one of many tools, and it may not even be the most important, but given the declining housing situation for large numbers of people, the more tools that we have in the toolbox the better. I reiterate our support for the Home for Good wording. If the Housing Commission comes out and strengthens the wording on the basis of even more legal advice, and we have a single recommendation from the commission, that is the best possible opportunity for all of us. Then it is a question of setting the date and running the campaign.
It would also be important to have the conversation. Marriage equality, while primarily about advancing the rights to marriage equality for the LGBTQI communities, also had the profound effect of an important national conversation. We urgently need that conversation about housing and what housing and home means to us as a society, whether it is an investment category and a financial asset or a public good. If it is conducted in the right way, the referendum debate in and of itself, could be hugely beneficial to us as a society.
My question, which leads on from Senator Fitzpatrick's, is to go back to Home for Good in the first instance and continue those practical examples of the benefits and merits. Perhaps one of the questions the witnesses could address, which Professor O'Cinneide did not mention in his list of negatives but was often used during the convention on socioeconomic rights back in 2014, is that somehow putting the right in the Constitution takes away from the Oireachtas our right to decide the best way to vindicate that right. I ask the witnesses to respond to that.
If I could push Professor O'Cinneide further, he very neutrally set out the pros and cons but he came out in favour of the side of an appropriately worded amendment. Could he perhaps give us a little bit more critique of the weaknesses of the negative arguments, or the arguments against it, either in his own opinion or in terms of the academic literature? I would welcome a little more detail on how those arguments are critiqued by advocates of a constitutional right to housing.
Ms Aoife Kelly-Desmond:
Something that is important to bear in mind about the right to housing is that while it is a new right for us to recognise in the Constitution, it still fits into an existing constitutional framework, which has a very long history in the State. We have a very strong and robust court system with a lot of respect for the separation of powers. There is no reason why the right to housing would be different to any other right, whether socioeconomic or otherwise, in terms of the courts overstepping their role. When we look at the way the courts have approached the right to education in this country, which is the most comparable right we currently have, they have very much come at it from the perspective of a principle-based approach to pointing out where the State is failing at a high level and leaving it back to the appropriate organs of the State to address how we achieve that right on a practical level. The right to housing should be framed in such a way that it is about the State creating the conditions for the right to be vindicated, not about reframing it as a legal issue. It would very much be the position of Home for Good that it is not a substantial concern and that there is nothing to suggest there would be court overreach. That would be going against the history that we have of how the courts have dealt with constitutional issues up to now.
Professor Colm O'Cinneide:
I always enjoy such interaction because when I was a law student and beginning my academic career, I used to be a sceptic about socioeconomic rights and consitutionalising them, so I am a convert, having thought and read a lot about it.
Consequently, I am always happy to share my journey with the committee. The major weaknesses of the negative arguments of not constitutionalising this come back to the fact that constitutions are important documents. They are supposed to steer the exercises of State power by all organs of the State. They are supposed to ensure that we the people provide a guidance framework for the organs of the State to exercise their powers. Therefore, what is in the Constitution is supposed to be important, because we have signed up to it and constitutionally endorsed it. If the Constitution contains a right to housing, it sends a significant signal. If the Constitution does not have such a reference, it is lacking that messaging. I know that may sound slightly intangible but this then becomes an important factor for courts and other bodies dealing with complicated issues about housing policy, questions of priorities and the scope of legal powers. If courts have to ask whether it is reasonable for the State to be taking this action to advance housing policy, their job becomes easier if the Constitution states something about the right to housing. The job of Departments becomes easier if a Minister can point to a right to housing in the Constitution. The jobs of committees, such as this, becomes easier if the Minister can be called in and asked what he is doing to implement a constitutional article on the right to housing. It becomes more crystalised and clearer. The absence of that, which is what the status quodoes not have, is a problem. The major concern with leaving things as they are, in not having a right to housing, is precisely the fact that it leaves a void in the Constitution.
I thank the representatives from Home for Good and Professor O'Cinneide for being with us. As Senator Fitzpatrick said, it is timely to have this discussion now because the Housing Commission recently launched its public consultation process seeking the views of the public on this issue. It runs throughout the summer until 2 September and it is important that people engage with that process. I urge the witnesses to contact all stakeholders they deal with on a regular basis, as we all will do, to encourage them to have their say. The consultation process will build on the housing conference that was about a housing referendum, which was held in May. As Deputy Ó Broin said, a referendum on a right to housing is a commitment of the Government and is contained in the programme for Government. I am certain the referendum will happen. By the Housing Commission setting the wording of a referendum at such a high priority shows the Government's commitment to the cause and its determination to follow through on it.
I previously worked on the wording of the children's referendum. I know how challenging, frustratingly slow and lengthy is the process of getting constitutional wording correct. It needs to be legalistic, watertight and understandable, that is, something people can communicate about freely. It will spark a national debate and rightly so. It will shape democratic decisions around one of the most - if not the most - important publications we have; Bunreacht na hÉireann. We all know that housing affects everyone and we do cross-party work in this committee because we appreciate that. Housing affects those who own their home and those who do not, those who rent homes to others and those who have no home whatsoever. That is why we need to make sure we get this right.
Home for Good has presented the committee with a wording twice. What feedback, if any, did the group receive from the Attorney General, the Minister, the Housing Commission or both on the proposed wording? Professor O'Cinneide outlined some concerns about this. I also have a concern, which others have raised, in that people may see this as some sort of a silver bullet that will solve the housing crisis overnight. We know it will not. What will solve the housing crisis is getting the balance between supply and demand right and, when that is done, making sure there is affordability in the market for everyone. Housing for All is setting us on the path to achieve this.
Professor O'Cinneide said that by not having this reference, it would leave a void in the Constitution, which is interesting. I agree with him that having such a reference in the Constitution would provide a focus for political change and legislative reform, as well as being a symbolic statement. What would this right mean to people, landlords, homeowners, renters and those who are homeless on a practical level? How should we communicate this to people so that they fully understand it? Mr. Stanley may wish to contribute to this. I know he said earlier that he had practical examples, which I would love to hear, because they will help to shape the debate and make sure the right messages are out there and that the right result is had by this referendum. Ms Kelly might start with the wording of the referendum.
Ms Aoife Kelly-Desmond:
The wording that we put forward was prepared within the confines of Home for Good, and is still at that stage. It was prepared following thorough analysis from a range of legal experts looking at the international and domestic contexts. It was stuck with a careful balance. In terms of it being considered more broadly, that will be the next stage of the process and needs to happen as soon as possible. It is important that the proposal for the referendum contains a clear wording and direction, which is a primary concern of ours.
Mr. Wayne Stanley:
We made the Housing Commission aware of our wording and we offered to meet the commission. We will submit it again through the consultation process, which we very much welcome. We have started to inform all of our stakeholders and supporters of our organisation across the country about this process. Hopefully it will receive a good and wide hearing and response.
By way of a practical example, I referenced research that looked at countries with similar commitments in responding to homeless and housing-led responses to homelessness, which were Scotland and Ireland. In Scotland, the language used and the legal commitment was around a right to housing and in Ireland, the commitment was constructed in a way that was closer to a charity model of providing services to people who were in need. The researcher found, in talking to people who were recipients of those service, that the people in Scotland who recognised it as a right, had a sense of ownership and engagement with service providers and local authorities. They felt it was their right and they wanted to know how it was going to be vindicated whereas in the Irish context, people were very grateful for the services they got. While a local authority or agency might appreciate an appreciative customer, the person who feels that it is his or her right, is someone you work with to vindicate that right. That in a broader citizenship context is the way we should go.
All of us in this room and most of the politicians I have engaged with on this committee are working very hard to try to progress housing on the ground and the changes we can make. We sometimes get frustrated by the fact that no matter how good the people you are engaging with are, the issue seems to fall between two stools or different organisations. The single-minded focus that a constitutional right gives us will help to bridge those gaps and close those silos.
Mr. Gavin Elliott:
It is important to point out that a stand-alone right to housing would be a huge benefit to policy and decision makers. It would give them space to operate, which may currently be constrained by the right to private property. When the Department is considering initiatives on renting, compulsory purchase or any of those issues, this kind of balancing of rights would provide a more imaginative space for policy makers to work in.
Professor Colm O'Cinneide:
I do not have much to add to those excellent contributions. I will respond to Deputy Higgins's question about what you should say to the public.
The point about creating a sense of ownership, a focus and a sense of rights vindication as something people are entitled to is extremely important. It is also important to be honest and say, if the right to housing is introduced, this will be the beginning of a process. The really hard work begins the day after the referendum gets through, when we start thinking seriously about translating this into new legislation, if necessary, and certainly new policy, in addition to new, more focused initiatives translating the constitutional rhetoric into reality. It is an important message that this will be the opening of a door and the beginning, not the end, of a journey.
I will take the next slot. I will expand on that line of questioning and ask about the practical applications of this. Many people will wonder how a referendum on housing is going to affect them or whether they want a house. They will also consider whether they are concerned about private property rights. The matter can be broken down in that way. What barriers or impediments are there in housing policy or in housing legislation that this would somehow address? I am thinking of long-term dereliction, vacancy, compulsory sale orders and those kind of matters that we do not really act on well. Is there something in that regard? I will address that to the Home for Good representatives first.
Ms Aoife Kelly-Desmond:
Professor O'Cinneide has already touched on this. The extent to which property rights in the Constitution prevent more creative policymaking is a matter constitutional lawyers do not all agree on. It is certainly the case that, in practical terms, there is a chilling effect on more creative legislation due to the extensive protections that are there, with nothing on the other side to balance it.
Ms Aoife Kelly-Desmond:
Certainly. In 2019, there was a Oireachtas Library and Research Service report on how much legislation about which a concern was raised regarding its impact on property rights was stopped over a ten-year period. It was a significant amount. It was more than ten Bills that covered matters such as dealing with mortgage arrears, rent, the protection of families from homelessness, the eviction of people into homelessness and various other issues.
Ms Aoife Kelly-Desmond:
It was a mixture of Private Members' and other Bills. It is quite a comprehensive report into the particular concerns that were raised. As I said, there are some views from a constitutional perspective that a number of those concerns could have been overcome if we looked at the matter from the perspective of the common good. In any event, it is something that comes up again and again. As Mr. Elliott said, if we put that counterbalancing right into the Constitution, it does not take away from private property rights. It does, however, create a space for policymakers to say we have one right here and another right here - what is the appropriate balance to strike? Right now, we have a right here and a very vague concept of the common good on the other side that people are less comfortable engaging with. That is one particular context in which we see it having a practical impact.
Mr. Gavin Elliott:
The research done by the Oireachtas Library and Research Service only looked at Bills that made it to the Oireachtas. There is probably an awful lot of legislation that never even got off the page because there were those concerns about private property rights. As a result of the fact that those rights are mentioned in the Constitution and, as Ms Kelly-Desmond said, there is not a counterbalancing right to housing just a vague notion of the common good, that is almost an instruction in a way to the Government to the effect that private property rights are paramount in any consideration of what we do about things such as compulsory purchase, rent freezes or whatever. Those Bills were never engaged with on their merits. We are not saying that all of them included things that Home for Good would support or anything like it, but it is to point out they were rejected on the basis of being unconstitutional in the first place.
Mr. Wayne Stanley:
The only additional point I will make is it is worthwhile considering where we would be now, if we had that constitutional right in place from 2008 to 2011. Some decisions were made that people recognised at the time were controversial. There was an insertion into the National Asset Management Agency, NAMA, legislation around there being a public good element to it that, in my view, was never really progressed. Certainly, when we read the presentations of NAMA to this committee, its overarching ambition was to ensure that it achieved a profit that was returned to the State. The public good of housing was never a part of its thinking in any truly substantive way. If we had a constitutional right to housing, the thinking on that would have been different or, at least, the potential for thinking on it would have been greatly increased. That goes back to the fact this will not be a silver bullet that will drive things, but it will change the culture. In times of crisis, and leading up to times of crisis, that will be very important to the way we think about housing.
Professor Colm O'Cinneide:
I very much echo everything the committee has just heard. The point about the NAMA legislation is extremely well made. It is very interesting, counterfactually, as Mr. Stanley just set out, to consider what would have happened if things had been different. That is quite important.
To go back to something Deputy Ó Broin said, I will emphasise that a great deal of expert academic opinion from Dr. Rachael Walsh, Dr. Padraic Kenna and others in Ireland, rightly states the concerns about property rights provision in the Constitution are over-exaggerated. There is a lingering legacy of a few questionable Supreme Court decisions from the 1980s that hang like a miasma over this area and they can be exaggerated. That is true. I also think that what often matters when it comes to legal constitutional analysis is risk and uncertainty rather than the rights and wrongs of a specific legal question. What happens, and what has happened in Ireland for quite some time, is a general air of uncertainty prevails about the freedom of State action in the housing sphere, including the State's capacity to regulate and act. That uncertainty can have a paralysing effect, often inside Government and when the Government defends its actions against external political criticism. There can be interdepartmental discussions and if there is uncertainty and legal risk, that can prevent things moving forward. One of the principal potential advantages of putting a right to housing in the Constitution is that it reduces the legal risk and the legal uncertainty. That can be quite important.
I will return to the Home for Good representatives very briefly. They may not have to answer but they can come back to me on the next round. When they were before the committee previously, we referred the wording they suggested to the Department and asked for engagement on it. Have they had engagement on it, or any sense of how that wording is being received or considered?
Mr. Wayne Stanley:
We met with the Minister on foot of the committee meeting. There was a reiteration of the Government's commitment to the right to housing and of progressing it. That is when the conversation around putting this into the commission began. That is what our conversations were around rather than the appropriateness of the wording necessarily. Our wording was part of a motion tabled by Senator Fitzpatrick that got broad cross-party support. There is certainly a political commitment to the Home for Good wording and what it is trying to achieve. The commission has to be aware of that.
I welcome our guests and thank them for their submissions, which we have read and considered. I will go to Professor O'Cinneide first. He mentioned that he was at a conference in May and he talked about affirming the right to housing as a fundamental entitlement. I fully agree with that. I believe we should have a constitutional provision for that right, but it then raises the issue of how that right is vindicated. That is empowering in itself. That is what it is all about and that sense of empowerment is the kernel of this. How can people vindicate their rights? It is empowering to the citizen and to the people. All of us in Ireland are very proud of our Constitution. Something is always being cited as being in the Constitution - which is the bible for us - and, therefore, it is good.
In his submission, Professor O'Cinneide states: "There are some reasons to be sceptical about constitutionalising social rights, such as the right to housing." He continues, "Rights rhetoric often does not translate over into effective action". He also states, "There are arguments for and against such a plan". What are the disadvantages? Will he list three disadvantages of a constitutional provision for housing?
Professor Colm O'Cinneide:
I will act as devil's advocate. It generates expectations that cannot be fulfilled. People will say they have a right to housing and they expect it to be vindicated. The Government will reply that it is running low on money, there is a crisis in Ukraine, it is dealing with substantial inflation and it has a problem. The gap between reality and practice can be a problem. It can cause discontent, disillusionment and anger.
The second problem is the risk of unintended legal consequences. This is always a risk. My view is that these can be overstated, especially in a jurisdiction like Ireland where the courts are very consistent in how they interpret and apply legislation on constitutional provisions. One can have unanticipated legal consequences, such as middle-class, quite privileged litigants being able to afford very expensive senior counsel to challenge a particular provision relating to a right to housing. That is a potential risk. I think it can be overstated.
The third potential problem relates to the creation of uncertainty. There is an abstract constitutional provision. No one is quite sure how it affects landlord and tenant law, property law, existing administrative policy on housing allocation and so on. It would put things up in the air, which can a problem. Those are three negative arguments.
If we have a constitutional provision of a right to housing, how does a citizen vindicate that right? Professor O'Cinneide might say it will be through the court. That may be a difficulty. Will he take us along the road of vindicating our constitutional right to housing?
Professor Colm O'Cinneide:
These are all excellent questions. Vindication can come in different forms, including political and legal. There is often a tendency to think that because it is in the Constitution, it must be legal. The Constitution was never designed to be just legal. I will come to the political side in a moment. Legal avenues are potentially opened if there is visibly a condition of totally inadequate housing supply. For example, where housing accommodation for a disabled member of a family might be utterly inadequate and the State is manifestly screwing up and failing to act. In that situation, there is potentially room for legal action. One can talk to an advice agency such as Free Legal Advice Centres and to civil society organisations to try to help in that respect.
An often-neglected aspect of this is the political aspect. There is something concrete in that a person can go to a Deputy, Senator or even to the Ombudsman, as well as other similar complaint structure, to say what is happening. The right to housing does not create whole new legal structures or provide a magic bullet, as the Senator rightly said, but it puts a spotlight on the different vindication avenues and makes everyone in the system aware that this right exists and must be responded to.
I am sorry I am only concentrating on Professor O'Cinneide. There are issues he raised in his submission that interest me. There is also the issue of legitimate expectation. The Constitution is a strong document. We believe in it and that it will vindicate our rights. We have a legitimate expectation that the State will uphold those constitutional rights. I support putting this wording in the Constitution. That gives the State added responsibility. It already has responsibility. This is a committee dealing with housing. It does not necessarily get results but we focus on it across the Houses of the Oireachtas. I thought that if citizens came out in large numbers to vote in a referendum to include this provision in the Constitution, they would do so on the basis that they would have some sort of leverage or legitimate expectation to be able to crank the State into position. Professor O'Cinneide referred to disabled people who might be in dire need of housing. Surely they will have significant rights. This will enhance a rights base to housing for the citizen. Would I be correct in saying that?
I will wrap up by saying, without putting words in Professor O'Cinneide's mouth, that he would endorse this proposal for a referendum on the right to housing in the Constitution. Would he be in a position to say that?
I will follow up on the point about whether, if it were to be passed, a referendum would create an expectation of change and give rise to a rights-based approach. In previous referendums, especially very controversial ones, much work was done on the implementation. It was not just about the wording but about how the detail of a change would be implemented. Some of that was provided to the electorate as part of a referendum process to show people what a constitutional change means if they make it. Does he think there is a case for spelling out, as part of a referendum, what the Government, State and Department will do and what processes will be put in place to assist people to vindicate their rights? Is it a case, if a referendum were to be successful, of people and organisations having to start to individually look for advice, to take test cases, and so on? Is there an argument for doing some of that work on implementation and how people can assert their rights as part of the preparation for a referendum?
Professor Colm O'Cinneide:
My view is that that would be helpful. I recognise that there may not be a political consensus about what should be done but I think, as part of any referendum campaign, that it would be useful and desirable if there was a clear idea, given by the political groupings in Ireland, of what might happen if a referendum were to pass. It would be useful for the debate. It would make it concrete and would give citizens a much greater sense of the issues at stake. I certainly think it is desirable.
In previous referendums, it has been felt that this is very important work, rather than debating the wording, with people having no indication of how it might pan out. Does Home For Good have a view on that work? Does it need to be done?
Mr. Wayne Stanley:
We were of the view, in the initial discussions on the Housing Commission, that that would have been a fruitful use of the commission. When it came to the wording, we initially proposed that it would be continued in this committee and done in a deliberative democracy process. That policy work that might go with it could have been progressed within the Housing Commission. We support that. It would be useful. Professor O'Cinneide raises one of the issues with that, which is that the different political parties might have a different view of how one can go about vindicating that right. That might cause some conflict in a campaign. Ultimately, the drive towards vindicating people's rights, how we might achieve it, and what might flow from that, would be useful addition.
Mr. Gavin Elliott:
If such a right were placed within the Constitution, it would also be useful if the Government reviewed existing legislation to ensure it was coherent with this new right, rather than leaving that up to the courts. If there was suddenly a right to housing in the Constitution there is a good argument that the Government should be reviewing the Housing Acts, for example, or the Residential Tenancies Act and making sure they are coherent with this new right, rather than forcing people to go to the High Court to delineate that with various test cases. That sort of approach should be taken, where the Government tells people that if the referendum is passed, it will require it to review housing legislation to ensure it is now coherent with the Constitution.
That is a very important piece of work because it would give the referendum meaning. Cynical people who are cynical might say this will not mean anything but we could then say A, B or C will happen if this referendum is passed and say how things will progress. From the limited engagement Home for Good has had with it, is there any indication that the Housing Commission is doing that piece of work? When did Home for Good publish the suggested wording?
It is important for us as a committee to try to get some of this information from the Housing Commission. We need to know if it is looking to do that as a piece of work. I propose we write to the commission. I know we invited its representatives to this meeting but it would be useful to get that information because that is an important part of this process.
I think the witnesses for their time. It is much appreciated. Following on from what my colleague Deputy O'Callaghan said, I would like to tease out the wording of the amendment. The witnesses have proposed the insertion of a new Article 43A on housing into the Constitution, to read as follows:
The State recognises, and shall vindicate, the right of all persons to have access to adequate housing.
What determines "adequate" housing? Is it a roof over someone's head in an emergency scenario? Is it a two-bed house for an individual or couple with one child or a three-bed house for an individual or couple with two children? What is the determination of adequate housing? If we are to put this suggested wording into the Constitution, we have to understand what it means. That is an important place to start.
Ms Aoife Kelly-Desmond:
The term "adequate housing" was very carefully chosen after a lot of deliberation because there has to be balance with a constitutional provision. It cannot be too granular or detailed but it also has to get across the substance of what is intended. The phrase "adequate housing" comes from the international context. Professor O'Cinneide has already touched on this and he is extremely familiar with this area. The phrase comes from the International Covenant on Economic, Social and Cultural Rights. There has been a lot of discourse at international level about what it could mean and what elements it could include, such as things like security of tenure, affordability, accessibility and those various criteria. The most important thing about the term "adequate housing" is that it allows space for the organs of the State to determine, at a particular time and in a particular context, what "adequate" means for society at that time. It would make this a living provision that can continue to evolve as time goes on. It provides a framework for how the State must consider this but it leaves the actual detail of it up to the organs of the State to decide at a particular time.
I appreciate that. However, the Constitution is a rigid document. It is not so much a living document like a policy document or a statement would be. It requires a vote of all citizens of the country to change it. It is not like a policy statement or document, which can be a living document that can change as times change. That is where I come up against the difficulty of that wording around "adequate housing". It is not that I have a difficulty with it; it is about understanding it. The biggest issue when we get to a referendum will be being able to explain to the public what we are inserting into the Constitution. We have seen many times before that where there is uncertainty among the public about what they are voting for, they will vote against it. There is no surer thing than that. There is a huge body of work to be done and we need to tease the wording out and understand it. Using words like "could" is probably an uncomfortable place for the public to be in as regards knowing and being knowledgeable about what they are voting for.
I have another concern. We are saying everyone has the right to housing but who determines that right? If I have the means to look after my own housing, could I choose, because there is a right inserted in the Constitution, to lean upon the State and say I need the support of the State to look after my housing needs even though I am in a position to do so myself? This is going back to those unintended consequences that Senator Boyhan referred to.
Ms Aoife Kelly-Desmond:
As the Senator says, the right to housing would apply to everybody but it is not a right to be given a house or a right to some specific housing support from the State. It means that generally, citizens should be able to access housing and the State should create the conditions whereby people can access housing. That can be about housing being affordable or rent being secure or it can be about State support if that is needed in a particular case. A constitutional amendment could not and should not be that prescriptive about someone being given a house by the State. That is where this wording has come from. It is about ensuring the realisation of the right to housing, so people can realise their right to access housing.
Professor Colm O'Cinneide:
These are all excellent questions and they will inevitably be discussed as part of any referendum on any potential wording. It is important to emphasise that the heavy lifting in all of this will ultimately come from the executive and legislative branches of the State. There will be a lot of work involved in the State defining what counts as adequate housing, shifting its definition of what counts as adequacy, revising old legislation and so on. It is necessary to be very clear about this. The right to housing, as set out very clearly in international human rights law, is not an entitlement to a State subsidy. It does not mean people have a right to have their roof immediately repaired in the morning or to have access for a disabled member of their family immediately guaranteed and provided by the State. It is a right to have their right recognised and for the State to take steps to vindicate that right. That has to be very important. It puts the focus on the State to act. It is a demand for the State to take action to vindicate the right, rather than a static entitlement. That will be very necessary. Everyone will have to be very honest and very clear about this. It is about propelling the State forward. That is the aim of a constitutional provision like this.
Yes. I thank both guests for their responses. There are different types of housing support in place, including social housing and HAP. We now have cost rental and we are introducing a shared equity scheme this week. We also have the affordable purchase scheme and we have private housing. There is emergency accommodation as well. It comes down to the debate about whether the State is doing enough. Is it able to lean on the fact we are doing X, Y and Z to vindicate that right to housing versus the opinion of somebody else, perhaps through the courts? It is certainly a debate that will roll on but we are in a better space now with the commission established and a consultation in place. I thank the Chairman.
This is a good conversation so maybe I will continue it a little. It is important to recognise the State already has lots of definitions in statute of what adequate housing is with respect to minimum standards, overcrowding, etc. In some senses, while we can argue whether those standards are adequate, there are some already there. For example, the State has been found to be in breach of the European Convention on Human Rights with respect to the conditions it leaves its own tenants living in, especially in council flat complexes. This is because of the very inadequate standard of such accommodation, which often does not meet the minimums the State has itself set. That is worth recognising.
It is also worthwhile to go back to one of the recent insertions on rights we introduced, namely, the rights of the child. One of the things that wording refers to specifically is the right of the child to an education. The Constitution does not say whether it is private education or public education, or whether it is funded by the household or by the State. That is not the job of the courts. The job of the courts is to say that this right is not being realised and that the Government must work out how best to do it. While I am a strong advocate of public housing, as the Senator knows, there is nothing stopping a Government saying it is going to vindicate this right through a set of measures that are about activating private sector supply. This is really about putting pressure on the Government to progressively realise and vindicate that right but the policy prescriptions are entirely a matter for the Government. The crucial thing is that the Government must act. We cannot emphasise that enough.
The Chairman asked really good questions about where this was not done in the past. Two instances strike me. At the start of the very significant upsurge in rental costs in 2014-15, Deputy Kelly was the Minister. As people will remember, he wanted to peg rents to inflation. The idea was that because inflation was relatively modest at the time, that would have allowed a certain degree of certainty and affordability for landlords and tenants. Two arguments were used by Fine Gael, which was the coalition partner of Deputy Kelly's party at the time. The first was that it did not want to negatively impact on private sector investment in the rental sector. The second was the Constitution. If we had linked all private sector rents to inflation in 2015, we would be in a much healthier position today. We would not have the spiralling rents that have gone up since that time but we also would not have the two-tier rental market where some properties have constrained rents and others do not. There is a good example of where the Constitution was used by some as an argument not to take a course of action that, with the benefit of hindsight, it would have been very wise to take.
More recently, the current Minister has said, and I have no reason to doubt him, that the advice from the Attorney General is that a ban on increases in rents in the private rental sector outside of Covid would be unconstitutional. Very eminent constitutional law professionals like Dr. Rachael Walsh of TCD have disagreed. However, if you had the right, as has been outlined by others, and you could balance that right, it could make those types of actions eminently easier and again help us to stop the rising rents at present. It is really important for those of us who have been arguing for this for a long time to emphasise it is not a silver bullet, a key to a free home or a change overnight but it is about that kind of impetus for change. While we can agree or disagree with the merits of the Government's housing plan, the Government would argue that it is doing what this constitutional right would be advocating. Therefore, it should be quite comfortable with having that right in the Constitution. Those of us who take a more critical view of Government policy can argue to the contrary but I think all of us can agree the right is crucial.
I have another point to emphasise. There is such a strong degree of consensus emerging in this meeting I do not want to break it in any way. However, it is important to emphasise that the programme for Government does not commit to a referendum on the right to housing. The wording is it commits to a referendum "on housing". I get the sense we are edging ever closer to a referendum on the right to housing. Notwithstanding some of the questions today, which were all legitimate ones, that would be a very good thing.
My last question is probably more for Home for Good, although it would be helpful if Professor O'Cinneide has a view on it. Let us put to one side the legal arguments and imagine the commission recommends we hold a referendum and gives us a wording. The big issue then is the campaign. What is the best way to convince people of the merits? Do our guests have thoughts, from their own involvement in or reflections on previous referendums, on what we would do post a positive recommendation from the commission and a positive agreement at Cabinet to move forward with a referendum? How do they think such a campaign should unfold? What would be the role of civil society versus the political parties, etc.? If there are any observations our guests would like to share with us at this stage it would be very helpful.
Mr. Wayne Stanley:
One of the things that is helpful, and Senator Cummins raised some of it, is to build a consensus. Deputy Cian O'Callaghan's suggestion around doing some of the work on what this will look like in reality will be important. We have experienced consensus in this committee and in our broader consultations with political parties around the commitment that is there around the right to housing and the referendum. I would like it if we could see that consensus in the campaign, in order for the public to see that the political system sees the benefit of it. As we come to that wording, there should be a process. One of the things that is unfortunate about the commission is that it is sitting and thinking. The conference in UCD was very welcome and helped to move us forward, so this is not a criticism of the commission in any way. That kind of process of deliberative democracy, which involves talking these things through and questioning the wording, is really important. While we want the referendum to happen as quickly as possible, we want it to happen as quickly as possible in the right conditions and ensure we have essentially done the groundwork. I am not sure if anyone else wants to add to that.
Gabhaim buíochas leis an Cathaoirleach. I thank all our guests for their contributions here and for their work. A majority of members on this committee support a right to housing in the Constitution. That has happened because of campaign groups like those present and in response to effectively ten years of undersupply and dealing with the fallout of that. The Government is committed to a referendum on housing, as has been said, but certainly within this committee and I can say within Fianna Fáil, there is a majority of people who believe in a right to housing.
When explaining it to people, for all of the concerns that are there, I often use the phrase that we are inserting a balancing right to housing because we have extremely strong rights around private property. This gives the Government more options by providing a balancing right to housing. That seems to have been convincing to some. There is always an argument about whether the different Attorneys General are more or less conservative but giving Governments more tools in their toolbox to deal with the issue of housing is something that can be supported. I thank our guests for all that and for the contributions they have made.
There is a job now for the commission. It is going to be really important in presenting the legal cases and particularly in articulating some of the concerns. The wording and the deliberative stuff will happen in this committee. We cannot have a referendum without having a Bill coming though the Houses. That will have to come through these committees, so that will come.
My worry in all this is the red herrings. The majority of people in my constituency voted against the children's rights referendum. That was not because they were opposed to the rights of children but because red herrings, or let us call them concerns, were raised and people gelled with them. We must start voicing some of those concerns and dealing with them in a pre-emptive way rather than waiting for them to happen through a campaign.
We have seen where things arise in a campaign and campaigns are not ready to address them. They can take legs. I am concerned that the issue of racism against the Travelling community could be used in the course of a referendum. That could play into a debate. We have to deal with those kind of issues in advance. In many ways the good work the witnesses have done has got there. Only civil society groups will be able to lead the way on some of those issues and Government and the Ministers, Departments and politicians. We know from the debate around referendums that civil society groups have been important. The fear on this is that people will support it. That would put us in a very weak position. We are actually not prepared for those red herrings that arise. If we go into a referendum thinking it will be passed that leaves us open to the very real possibility that it will not pass. Have the witnesses given any consideration to those type of issues? For example I imagine a campaign to frighten landlords could be successful in spreading not just the concerns people might have about big institutional landlords but also people who might have one house, or family members of people who might have one house. Has any work been done in that space about the red herrings? The ways in which different countries have vindicated this right are fascinating. If we can provide ways to bring those examples into the public mind such as the way it is done in South Africa and elsewhere, that will help play into a debate and prepare the public for what is going to be a more difficult campaign than we expect.
Mr. Wayne Stanley:
The Deputy raised many important questions, as indeed all the members have. That is welcome. I might hand over to the legal brains to talk about the red herrings as they have spent a great deal of time thinking some of those through. In regard to preparing for the referendum, at the recent international conference, FEANTSA came over and Ms Kelly-Desmond spoke in a session which looked at previous referendums in Ireland and how some of the learning from those might translate into advocating for a right to housing indeed across Europe. We had a particular eye on Ireland. Marriage equality was one issue that was raised. If a person was against marriage equality the polling at the time would have told them that if they took a particular tack – on a particular concern or red herring – that 70% of the public was going to vote against marriage equality. A person on that side would have felt very secure in the way that Ireland was going to vote. We are conscious of that. There is a good deal of positive polling on the right to housing. That is welcome. It is a better position to be in rather than having it the other way around. However as the Deputy raised we are conscious that the polling can be soft. In the context of a referendum things can get away from you. We have to prepare for that and as a group we are thinking that through. We have already started the thinking on it and building that broad civil society coalition will be an important part of that.
Mr. Gavin Elliott:
There are two types of red herring. One is the fact that there are undoubtedly bad actors who will come up with things they know not to be true and use them as a way to try to convince people to vote in a certain way. The second is that other people may be genuinely scared. They may misunderstand what it means. They may be worried about their own homes or about the family farm, any of those sorts of issues. Those people are easier to address because you can explain to them that this does not mean what they might think it means, or that it might be a positive thing for the family farm. It does not mean the State is going to take your home away. The bad actors who have cropped up in all recent referendums will be difficult to combat, certainly on social media we see that all the time. As with previous referendums it is that engagement of individuals and people telling their stories, probably not organisations such as ours but individuals who are suffering through the housing crisis actually saying “this is what this could mean for me”. That is what has been successful. The previous referendums were not necessarily won by the organisations that were running them, or supposedly running the campaign group. They were won by the people who volunteered and went out and spoke.
Ms Aoife Kelly-Desmond:
It is very important to get across to people, as Mr. Elliott says, that fear people have. The right to housing is a right for everybody, every single person in society needs housing. It is not a right that is only for a specific group of specific people. It is for everyone. Whether you are a homeowner or whatever your situation is it is a right that adds to your rights, it does not take away from them. Another important point the Deputy mentioned is around it being a balancing right. Private property rights are there. They are strong and they are not going anywhere. They will continue to be there to protect the interests of people who are concerned about their property ownership in whatever context. Getting that positive message across that the right to housing is a positive thing for society, not a negative thing for particular groups, will be really important.
Professor Colm O'Cinneide:
Deputy McAuliffe makes an excellent point. It occurs to me that the focused questioning we had in this evidence session is in a way exactly what is needed in this type of referendum. We need to ask the demanding questions about what this right will do, what this proposed referendum will do, what changes will it action and what is the significance of it and how is it going to affect individuals. They are precisely the difficult and demanding questions that need to be answered. They cannot just be smoothed over. The discussion today is a good test run for all of this. It is precisely those demanding questions that need to be flagged in a referendum. If they are not flagged, debated and discussed openly they will come in anyway.
There are a few points to be made on international comparisons. There are very interesting concrete examples from countries such as South Africa but also from various European countries such as Finland and France of the right to housing generating concrete changes for the better. France had a massive housing crisis in the 2000s. It introduced legislation on foot of the constitutionally recognised right to housing and it actually had an impact. There are lessons to point to. I will make two more general points from my time on the European Commission of Social Rights examining how the right to housing was being fulfilled throughout Europe. First of all there is a diversity of ways to give effect to the right to housing. There is no single, fixed right or wrong model especially when it comes to a mixture of social housing and private housing. Different horses for different courses. That is an important point to make. Also important is the need to have flexibility so that State responses to housing crises and changing global financial and economic conditions are not too hemmed in by concerns about private property rights. You need that flexibility which the referendum will help to give. However you also need that focus, that sustained attention over time, both the good times and the bad times, on the need to provide secure housing for the population of Ireland. That is something the referendum can give. Sustained focus over time plus flexibility in State responses are two important points to add to the conversation.
Listening to the last round of contributions the recurring theme is the need to build consensus. It would be presumptious to suggest that this is agreed. There are many cynics and people who will say "give me the economic argument". I could nearly name the constituencies. I could tell you ten of them where there will be difficulty getting it over the line. They would have a view that getting up early in the morning - dare I say it - and doing a hard day's work and paying your way and paying for your home is the way to go. "What's the problem, why are we carrying the burden?" people will ask.. There are many potential arguments. I would not agree with them but I can nearly tell you the constituencies where they will be made..
There will also be extreme-right-wing people who will use it for another political agenda. There will be different groupings. We know them. Many of them are on the political landscape already. They will use this potential referendum to bring about different focuses and different arguments in a politically very cynical way. We need to have our eyes wide open in that regard. People talk about defining housing. I get a bit uncomfortable when the most basic of things have to be explained to people.
The issue here is the need to build consensus. I acknowledge Mr. Stanley, Mr. Elliott, Professor O'Cinneide and Ms Kelly-Desmond for their work and other people who have engaged with us. We have come a long way. Traditionally, we had people with megaphones on the streets talking about rights in the Constitution but with nothing thought out other than the suggestion of tapping into the anger and discontent of the citizen. That is not the responsible way to deal with such matters - end of story. There are different political narratives and political agendas, and we have to be always mindful of that. That is the reality. We know that and acknowledge that.
How, then, do we move forward? It is back to the empowerment of the citizen. I know that no one here is suggesting this, but it would be crazy to suggest that a constitutional referendum would somehow suddenly sort out our ills not necessarily next year but in three years' time. It will not. We need to be clear all along that this is about providing an impetus and focus on the issue. This will ultimately empower the citizens if they agree to the proposal, and I hope they do, and then also empower them to seek to vindicate that right. It has to be as simple as that. It must be another power in the Constitution that is dearly valued and held to and that can be suddenly put up politicians and policymakers, whoever they may be, who are told: "This is now a right in our Constitution." People could maybe poke at them and say: "Remember this, boy? This is what it is about." That in itself would be empowering.
My question is about building the consensus. It should be remembered that the programme for Government, on page 120, under the title "Constitutional Reform", not under housing, states that the Government will hold a referendum on housing. That is all it says. That is a promise, which is fair enough, and I believe that the Government will do that. We know that this Government has two and a half years or, at the very best, three years left in government, so if this referendum is to happen, it will happen before then. That gives us a pretty tight timeline, which allows us to get organising ourselves now, not in six months' time. There may be very different players on 15 December. I am not suggesting there definitely will be. In a few lines, simple messages or take-homes for us, how do the witnesses feel we can partner with them, not lead above them, in building this consensus? They might each give a brief response. We have three minutes.
Mr. Gavin Elliott:
That sort of consensus-building will be vital. A referendum cannot be won without that. There will have to be consensus-building among organisations such as ours, which are in the NGO and civil society sector, but there are also groups that are maybe a little less organised such as tenant advocacy groups, housing activists and so on who are on the ground and who will need to be brought into this process as well. They may be even slightly more effective at that sort of messaging than we could be. Groups like this committee also play a vital role in that. Even this discussion is playing a vital role in pushing this forward and reminding the commission and the Government that this is not going away and will not fall off the agenda. It is here to stay.
Mr. Wayne Stanley:
What has just been phrased and some of the conversation we have had about that kitchen table discussion is, I think, what Senator Boyhan is talking about. The question is how we get inside people's homes and make sure that the arguments we are putting forward are cogent and clear in order that when people discuss this around the-----
Mr. Wayne Stanley:
It would not have been my first time trying it either.
The political system has a huge role to play in this. One thing the political system in Ireland is particularly good at is getting out, knocking on people's doors and asking them for their votes. In the context of this discussion about the political system getting out, it is really important that people are armed from having had that deliberative process and understand why they are going out for these things and their importance in order that they can have those real conversations on the doors with people.
A number of us are members of other advocacy groups like Raise the Roof, which is holding a number of meetings around the country, engaging with people on issues of housing. The appetite for a conversation and for action is definitely there on the ground. Harnessing that through the different modes would be really important.
Professor Colm O'Cinneide:
I am a law professor in London; I am probably the least qualified person in this meeting to comment on winning hearts and minds on the doorsteps of Dublin or elsewhere. I will just emphasise the need for an honest and transparent debate. In the context of Irish politics, that is incredibly important and necessary. As I said, this committee's discussion is a good example of exactly the sort of transparent and honest debate that needs to happen.
I do not think there is a Green Party or Fianna Fáil slot left. Next is a Fine Gael slot, which I will take, and then we are on to the free round. I know you have indicated, Deputy Ó Broin.
I will focus a little on the perceived impact of this. The Home for Good statement refers to the number of notices to quit this year. It is no secret that there is a large number of landlords leaving the market. There are many reasons for that, including taxation, prices having risen to an extent that it has taken people out of negative equity, and the hassle of being a landlord. There are also policies being espoused by some in the Opposition on tenants in situ, and many landlords are fearful of that. I am just stating what I think are facts. In balancing the rights, as Deputy McAuliffe referred to, do the witnesses feel that this wider debate - and the onus is on all of us to ensure that this does not occur - could have an impact in worsening the flow of landlords out of the market? As I said, the onus is on us to ensure that that does not take place, but my question is whether the witnesses believe that or whether there is any evidence from elsewhere that has indicated that such a thing has occurred?
Mr. Wayne Stanley:
I think what the Chair is talking about is the very real potential for political impact and that political impact and concern leading into economic impact. The broader point we were making in referring to those points is as Deputy Ó Broin phrased it, that is, that a referendum is one of the tools that would allow us to create the infrastructure to ensure we have a functioning housing system for the benefit of all our citizens. The point we are making is that the crisis is getting deeper and we still do not have that tool. The addition of that tool, while it will not stop evictions or stop landlords from leaving tomorrow, will create an impetus and a recognition of housing as a fundamental right as part of the social and economic infrastructure in a way that is not there at the moment and that will perhaps work as a leveller to ensure we do not end up back here. That is the broader point.
I understand what Mr. Stanley is saying but the question is whether he fears that such a debate will worsen the situation when it comes to landlords leaving the market due to the fear that this balancing will negatively affect them as landlords. When a landlord leaves the market, it takes another property out of circulation, which can worsen the housing crisis, so it is a circular effect. Could Professor O'Cinneide jump in here? Is there any evidence of such an occurrence elsewhere where this debate has occurred?
Professor Colm O'Cinneide:
Not with the constitutionalising of provisions; not with the existence of a right to housing. There is very little correlation between a constitutional change and significant economic effects. Again, I emphasise that the constitutional stage is only one part of a wider set of responses. As ever, if you mess up your housing policy and legislation, it can have unintended economic consequences in the same way as it can have unintended legal consequences. My own sense is that the referendum is unlikely to have those effects if the referendum campaign is conducted with a certain degree of honesty and clarity. The insertion of a right to housing in the Constitution is not going to immediately change much directly in the law, particularly when it comes to private parties of landlords. The negative effects you are talking about are much more likely to come from errors in legislation and policy mistakes later on in the process but that could happen today. In other words, it is more of a potential issue when it comes to policy design rather than at the constitutional stage.
Ms Aoife Kelly-Desmond:
It is important that the messaging is right and that we allay people's fears. We need to explain where landlords will stand and that people do not have to have such a fear regarding their rights. The other point I would make is that we are in a serious housing crisis, which is detrimental to landlords. No landlord wants to evict somebody into homelessness. Somebody being evicted in the first instance is not a crisis unless that person has nowhere else to go, which is the situation we are seeing on a daily basis because of the crisis. A better and more structured housing system that works in a more rational way would be better for landlords, together with everyone else. Getting that message out is really important.
Regarding the knock-on effects of policy instruments, and I know we are deviating slightly, and evidence of negative intervention in the market, I have done some reading about Berlin, where they looked at intervening with regard to the rental market. I am not sure if Professor O'Cinneide is familiar with that. Would he like to comment on it?
Professor Colm O'Cinneide:
I do not know enough about the situation in Berlin, which is ongoing, to give the Chairman a very clear idea of what is happening there. I could not provide much of value about that example. There is the general point here that it can have unintended consequences and housing brings its own issues like every other aspect of economic and social policy. I would emphasise the potential role of a referendum in actually freeing up the State to able to deal with all sorts of unintended consequences because some unintended social consequences have been playing out very recently. These social consequences have been building up for the past decade or more of inadequate or slow State responses. There are different forms of unintended consequences to be concerned about. By balancing out some of the pro-property pressures that can often work in favour of inertia, the balancing amendment involving a right to housing referred to by Deputy McAuliffe can in a way free up State policy to be more flexible and responsive and to be quicker to respond to these changing social conditions. In one way, it has the potential to free up State responses to these problems as they develop.
Some of us would argue that it is poorly designed policy with respect to the private rental sector that has led to the crisis in that sector and all of the unintended consequences that flow from that but we will debate that another day. One could say that there is a case to be made that private sector landlords might see the right to housing in the Constitution as a positive thing. One complaint of landlords is that the failure of the State to provide an adequate supply of social and affordable housing has led to an over-reliance on the private rental sector to meet a range of housing needs it was not designed to meet. Landlords often complain to this committee that the solution to the homelessness crisis is more social housing. Therefore, if it is presented in the right way, they might see this as a benefit in stabilising the housing system overall in a way that might be conducive to good landlords complying with the law etc., but that is a debate we can have at a later stage.
I am really interested in the fact that Professor O'Cinneide said there is some research around the positive impact of legal or constitutional rights to housing in a number of jurisdictions. If he was in a position to share by way of an email to the committee links to any academic papers or articles he thinks would be useful for us to read, that would be really interesting because those are the kind of tangible things we would be very keen to promote.
We spoke about the children's referendum. One of the problems with that referendum is that the result was taken for granted from the outset. It was a very lacklustre campaign. Everybody thought "who is going to be against enshrining the rights of children in the Constitution?" and we were all caught off guard even though the entire political system was in favour of that referendum. The lessons of marriage equality and repeal in particular show that you take nothing for granted. You have a positive message and convince people of the merits of the argument not just by the human stories but door to door. Let us not forget that this debate started in earnest in 2014 with the constitutional convention on social and economic rights. After open and informed public deliberation, including strong arguments for and against, 84% of people voted in that convention to enshrine the right to housing as one of a number of social and economic rights. That gives me great confidence because what it says is that if the debate is open, transparent, honest and sincere with people about what this can and cannot do and we listen to people's genuine concerns and respond to them in an intelligent way, reasonable people will do what reasonable people always do and vote the right way. The constitutional convention should give us some comfort in that regard. I am not really looking for a response. I want to end on that because we often forget that there has already been a very extensive public deliberation on this matter. It was instituted by the Acting Chairman's party. It gave us some very good research and documentation. People should go back to that report, which was published in 2014, because it is a really important starting point for us after almost a decade of debate around this. If Professor O'Cinneide has anything he thinks the committee should read, could he send it on because some of us would be very interested to see that?
Mr. Wayne Stanley:
To follow on from the point made by Deputy Ó Broin, housing is a problem across Europe so Ireland is not unique. We have our own unique aspects. One of the few successes has been Finland. I understand that Finland has almost fully deregulated its private rental market because its public housing system and its housing system in general are functioning so efficiently, the for-profit sector has been given more and more free rein to be a for-profit sector. There is a culture there of respect for renters and their entitlements that allows that level of freedom.
That should be a positive example to landlords in future.
I have some comments rather than questions at this stage. I thank the witnesses for their attendance. It goes back to tapping into and supporting people who want this to be a success. However consensus building was talked about earlier. We cannot see that in isolation from the political climate in which we live. We have 10,000 people in emergency accommodation today. The criteria are quite strict for emergency accommodation. We have a national housing crisis. The Government has said there is a crisis. There is no dispute over that any more. There was a battle for years over whether or not we had a crisis. We are now at a stage where we all accept there is a crisis. We are singing from the same page. We have to look at it in that context and in the cycle of this Government. On this commitment for a referendum as I said earlier, we are on a countdown time now. Of course people are aggrieved about housing. Why would they not be? People who are working, people who earn €45,000 and €50,000 a year are aggrieved because they cannot access housing. People who work here in Leinster House and have to travel many miles to work are aggrieved because of housing. People who work here and cannot afford to pay rent are travelling 50, 60 and 70 miles a day to come to Leinster House to work. I know these people; they exist. These are the real issues. Therefore it is also going to be a barometer of the opinion polls. We know where the political parties stand on those polls. I envisage this will be quite a tense period of engagement. It will become a plebiscite or a vote of confidence in the Government. That is the nature of these mid-term elections or referendums. I hope it is not an angry one. People have to be robust and engaging because it is a real issue of concern. We have to be very careful about it. As politicians we can only lead from the front and be responsible in terms of our communication. Today's exchange was a classic example of how we can engage and share. Let us not forget that if there was an opinion poll tomorrow, there may be a very different political situation. Were this plebiscite or referendum to take place, I believe it would be a very protracted and angry one, and understandably so, in regard to housing. There is a lot ahead of us but ultimately if we explain it, as Deputy Ó Broin has said it is about example, being positive and bringing those stories to the front. We have a hell of a lot of work to do. If I were leaving here today even just teasing this out we have much more work to do than we even imagine we have. It is going to be an enormous task. It is a Government commitment to hold a referendum on housing and I presume this is going to be the nature of it and we have a lot of work to do.
As there are no other members indicating it gives me great pleasure to thank our witnesses, Mr. Stanley, Ms Kelly-Desmond, Mr. Elliott and Professor O'Cinneide. We appreciate their presence this afternoon and their sharing of their insights on this important topic. We look forward to continuing our work with them as a committee in the future.