Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I thank Deputy Pringle for introducing this Bill. As a result of it, focus has been placed on Article 45 of the Constitution, which is one of the most remarkable articles in that document. It reveals what a progressive Constitution we introduced back in 1937. Article 45 sets out a series of directive principles that this House and the Seanad should adopt when deciding on what laws to introduce. It sets out a series of requirements that we should take into account by way of guidance when deciding how we introduce laws. It seeks to ensure that the State will prioritise justice and charity when it comes to the introduction of laws. It also seeks to ensure that citizens will have jobs to enable them to find the means of making reasonable provision for their domestic needs.

The article seeks fair ownership of the material resources of our community. It seeks that free competition would not result in the concentration of the ownership or control of essential commodities in the hands of a few individuals to the common detriment. It seeks to ensure that credit would be available for the welfare of the people as a whole. In addition, it seeks to allow as many families to live on the land in economic security as was practical. It seeks to promote private initiative in industry and commerce. It also seeks that private enterprise would be reasonable and efficient, and would not be used to permit unjust exploitation. It seeks to safeguard the economic interests of the weaker sections of the community. It seeks to protect the infirm so that they would not have to enter vocations unsuited to their infirmities.

I think all of those principles would be supported by every Member of this House. That article should be recognised as a guide for Members of the Oireachtas when it comes to drafting our laws. Not only should it be a guide, but in the past that article has been an inspiration to other countries. Article 45 was the inspiration for Articles 37 to 39, inclusive, and 46 of the Indian constitution, yet people may legitimately ask why it is that Article 45 has not got the political or judicial attention that many believe it deserves. The reason no doubt is that the provision expressly states that the social principles will not be cognisable by the courts. It means that one cannot go to court to say that individuals have been denied rights or access to certain benefits because the principles of Article 45 have not been complied with.

It is interesting to note that when the Constitution was being drafted, many of the provisions in Article 45 were contained in an earlier draft of Article 43. That article did make them cognisable before the courts. At the time that the Constitution was being drafted by Mr. Hearne and Mr. de Valera, there were serious objections from the Department of Finance and the Department of Justice as to the consequences of making Article 45 cognisable before the courts. A senior official in the Department of Finance, Mr. James McElligott, was particularly concerned about making the provisioning of Article 45 rights that could be used and availed of by citizens before the courts. He said:

These declaratory phrases, while individually unobjectionable as a statement of social policy, might, if launched into the void in the draft Constitution, recoil like a boomerang on the government of some future day in circumstances not anticipated by the originators.

I derived that information from Gerard Hogan's book on the foundations of the Irish Constitution, which reveals exactly how the changes took place in respect of the Constitution. Lobbying by the Department of Justice and the Department of Finance had an effect because afterwards Mr. de Valera decided that the rights in Article 43 would be put into Article 45 and would expressly not be cognisable by the courts of this land. It is also instructive to note that Mr. de Valera was contacted by individuals in America who welcomed the fact that the rights were not going to be given cognisability before the courts.

Nonetheless, Deputy Pringle's proposed amendment to the Constitution seeks to insert after the introductory paragraph in Article 45 a further paragraph that refers to another document, which is the International Covenant on Economic, Social and Cultural Rights. As we are aware, this country signed up to that convention back in 1989. The criticism that is made is that we have not ratified it or introduced it into Irish domestic law. However, when one looks at Part 3 of the convention one will see that many of the rights set out in it have in fact been incorporated into Irish law over the years. In fact, some of them predated the signing of the convention in 1989.

For instance, Article 6 refers to the rights of everyone to "the opportunity to gain his living by work, which he freely chooses or accepts". I would have thought that the right to earn a livelihood is already an unenumerated right in the Irish Constitution.

There is also a provision in Article 7 of the convention regarding the enjoyment of just and favourable conditions of work. We have good employment legislation in this country that ensures that workers are protected. Article 8 deals with the rights of individuals to join trade unions. Not only is that a right recognised under the Irish Constitution in terms of the right of association, but there is also legislation in place which ensures that individuals, in practice, have the right to join trade unions. Article 9 refers to the right of everyone to social security. I would have thought in terms of the social security system that rights exist in Irish law at present. Article 10 refers to the protection given to the family. Under our Constitution those rights exist.

Article 11 is a particularly interesting provision and there is a question as to whether the rights contained within that article exist in Irish law at present. At the heart of Deputy Pringle's proposal is the fact that many people legitimately think that a specific right to housing should be inserted into the Constitution. If one looks at Article 11 of the convention, it states that the State parties will "recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing".

I have an open mind in respect of whether we should have a right to housing in our Constitution. If it results in individuals getting more housing and more housing being built, I will be in favour of it. I remember this was discussed before in the context of whether we should amend the Constitution to have a right to housing. My only concern about it is that having a constitutional amendment can make the political class feel very good about itself. We can go on to argue about how it is so important to have a right to housing in the Constitution, but the reality of it is ultimately, if such a right is introduced, it may not assist as many people in practical terms as we hope it would. For instance, are there many people in this House who think that the rights of the children in this country have significantly improved, or improved at all, since we introduced the children's rights referendum? I question whether they have improved.

One of the factors to be taken into account in terms of including a right to housing in our Constitution is what the practical impact of that would be. I can see the benefits of it. At present the Government has not recognised the emergency nature of the housing problem that we have in this country. I have said before that we need to introduce emergency legislation, similar to the emergency legislation that was introduced to protect and uphold our financial system a number of years ago. We need to introduce such legislation and it needs to specify that extraordinary powers are to be given to the Minister for Housing, Planning, Community and Local Government to ensure measures can be taken, with immediate effect, to commence the construction of housing.

The one real benefit of a right to housing in our Constitution would be that such legislation would be less easy to challenge before the courts. There is no doubt that if such legislation was introduced and gave a Minister the right to, perhaps, transfer the land from NAMA, to seize land held by State entities or to insist that land zoned for residential use is built on within a short period of time, that legislation would be challenged. If, however, there was a right to housing in the Constitution it may protect that legislation from challenge. That is a matter that can be looked at in more detail in due course.

To address the downside, there have been examples before where rights existing in the Constitution, such as the right to free primary education, have been challenged before the courts to ensure its full and adequate vindication. One thing that is noticeable, and has happened in the past, is that an advantage is given to the people who are well-informed enough to get good lawyers to represent them and challenge the State on their behalf. They then go to court and get a judgment vindicating their rights, but the effect of that is only in respect of the individual who takes the case. The effect of court judgments vindicating the constitutional rights of individuals in such circumstances is that the individual gets provision in respect of primary education.

Similarly, it would be the case, in my opinion, in respect of housing. There would be people who are well-informed and who are able to get good lawyers and they would be able to establish that they have a constitutional right to housing and the State would be obliged to provide it. It does not take into account that such issues, where there are individual rights, require a general policy decision by Government that will involve protecting the rights of everyone and ensuring that as much as possible can be done for the community at large.

I commend Deputy Pringle on introducing this Bill. The whole issue of economic, social and cultural rights is an area that is developing and one to which we will undoubtedly return to again.

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