Friday, 4 June 2021
Right to Housing: Motion
Alice-Mary Higgins (Independent)
I welcome the motion and the fact that a Bill to address this issue was introduced in the Dáil. This is a sign of the momentum and demand that is there in respect of housing. However, I will not deal with the initial parts of the motion. There are counter-motions on the different parts of housing policy, but I will focus primarily on the constitutional referendum. We know the UN Committee on Economic, Social and Cultural rights, as mentioned, has spoken about the right to adequate housing.Ms Leilani Farha, the former UN special rapporteur on adequate housing, wrote to the Government expressing specific concerns regarding policies and laws in this State that treat housing as a commodity and undermine the enjoyment of housing as a human right. She specifically identified the financialisation of housing, including the role of global capital in using housing as security for financial instruments, as a key counterpoint and underminer of the achievement of the right to housing, whether or not such a right is included in the Constitution. That type of financialisation is, she said, disconnecting housing from its core social purpose.
There are many positive measures contained in the legislation that is coming through but it is really important that we listen to the concerns expressed by Ms Farha. We are hearing from the UN and others that there are tensions in terms of the financial instrumentalisation of housing and the role of global capital markets. The warning is that their aims are not necessarily the same aims we may have in terms of protecting the right to housing. We need to be very careful in regard to that power balance. Notwithstanding the many positive aspects of legislation brought forward, as I said, there are concerns in terms of addressing the tension that has been identified by the UN rapporteur, who not only looked at the situation in Ireland in detail but also the wider perspective.
That is the context of our discussion on the right to housing. It is not simply that such a right would be a nice and good thing to have and would show how much we all care. It is important and necessary to specify that right because of the way the Constitution has been interpreted. It is necessary because it is not simply a case of adding something on; in fact, it is needed to counteract an interpretation that is already there. Article 40.3 talks about the "property rights of every citizen". Article 43.2 refers to the need for private ownership rights "to be regulated by principles of social justice" and specifies that the State "may as occasion requires" delimit the exercise of private property rights, "with a view to reconciling their exercise with the exigencies of the common good". Unfortunately, it has not been interpreted that the common good should outweigh property rights on occasion. The scope to do so was potentially there but we have had not the case law to facilitate it.
Many good legislative provisions have not been moved forward because they were claimed to be blocking property rights. In the case of my proposal for a vacant sites tax, for example, we were told it could not be done. Such a tax was, in fact, introduced at a later date. We have had the same experience in our Civil Engagement Group. We were told that proposals we put forward would undermine property rights but, a year or two later, the same proposals were introduced. The same argument was made in respect of proposals on domestic violence and the status of illegitimacy in terms of how they might impact on the rights of homeowners. A number of times, property rights have been given this heavy weighting and emphasis in interpretation. That is why we need these proposals. They might not have been needed if there had been a different interpretation of property rights, but they are needed as things stand. It is true that when we create rights, we also create responsibilities. The concern at the moment is that the State already has responsibilities to its citizens that it is not fulfilling because of concerns about the Constitution as currently framed. The responsibilities are already there and the purpose of including a right to housing is to ensure the State can meet those responsibilities.
I want to refer briefly to the wording of the motion. Senator Fitzpatrick, in proposing it, spoke about how such provision is made all over the world, through constitutions and in legislation. It is part of the UN's sustainable development gains. I absolutely support the Home for Good campaign and my former colleague, former Senator Colette Kelleher, was an incredibly strong champion in promoting this issue. However, I wonder whether the language used could be stronger. The motion proposes that Article 43 be amended to state "The State recognises, and shall vindicate, the right of all persons to have access to adequate housing." That is good, but it further proposes that the Article should state "The State shall, through legislative and other measures, provide for the realisation of this right within its available resources." We need to be clear that the State will not simply have the responsibility to use its resources to deliver housing. It must also have the power to produce laws that may temper private rights. That may require a reference to "the law" in the first clause. I really like the wording in the Thirty-ninth Amendment of the Constitution (Right to Housing) Bill 2020, which was put forward by People Before Profit, because it refers to a right to "dignified housing", which is included as part of the UN's economic, social and cultural rights, and places a requirement on the State to vindicate the right to housing through laws and policies. My final point relates to the major concern that I hope will be addressed in the Affordable Housing Bill. The State must guard its resources if it is to fulfil its responsibilities. If we give away public land to the private market, we are in danger of not having the resources we need to vindicate the rights that are, rightly, being proposed in the motion. Let us make sure we protect the resources of the State in order to use them for the common good. I support the motion.