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Centre for Housing Law, Rights and Policy (CHRP) NUI Galway Submission on Referendum of Housing.

Professor Padraic Kenna, NUI Galway. 

Padraic.kenna@nuigalway.ie

There is a significant popular movement for inserting a right to housing into the Irish Constitution, and significant work has been carried out by civil society organisations to prepare a suitable wording.

One of the key questions on a constitutional right to housing is whether and how it would be enforced by courts – the question of justiciability. Would the courts order a State body to provide housing to any person who invoked the constitutional right? While there has been much written on this question internationally, especially in relation to South Africa – which has had such a rights for more than 20 years, it is important to recognise the particular role of courts in Ireland under the Irish Constitution -Bunreacht na hEireann. 

This Submission from Professor Padraic Kenna at NUI Galway to the Commission on Housing examined significant Irish housing cases where constitutional rights were invoked by people seeking basic housing services.  Since there is no explicit right to housing in the Constitution Irish courts have relied exclusively on a natural law rights interpretation of Article 40.3.2 on the unenumerated right to bodily integrity (established in Ryan v Attorney General in 1965). However, even while recognising the existence of this constitutional right, in the O’ Reilly v Limerick Corporation case (and later cases) judgments have reiterated the principle of separation of powers which precludes courts from adjudicating on the redistribution and allocation of common goods (taxation) and common burdens (regulation). These are seen solely as functions of the Government, Ministers and State bodies. 

A constitutional right to housing would be a valuable step forward from the reliance on natural law unenumerated rights based on a case in 1965. It could move judicial oversight to a more structured, contemporary and internationally accepted standard of housing rights protection. This could encompass not just rights of access to housing for homeless people, but also address issues of affordability, sustainability, community safety.  At the same, time it could preserve the highly prized independence of the Irish judiciary from the political branch (allowing elected governments sufficient legal space to decide on the overall level of resources to be made available for public benefit), respect for separation of powers, and non-interference in public bodies allocation of resources to individual applicants.

Clearly, any Irish constitutional right to housing would not undermine or contradict already accepted Irish State human rights obligations under the UN, Council of Europe and European Union Treaties, and a harmonious interpretation is assumed. Irish courts could draw on human rights jurisprudence on respecting, protecting and fulfilling the right, declaring the content of the minimum core obligations, in their interpretation of existing housing legislation – which, in any case, already involves extensive State housing provision and support, possibly meeting the requirements of the minimum core obligations of the UN Covenant (with some gaps in provision for particular groups). In addressing the concept of progressive realization of a right which is exceptionally complex and expensive to implement, Irish courts could draw on Council of Europe jurisprudence on how the State should take steps to implement it within a reasonable time, with measurable progress and making maximum use of resources. 

The Submission also explores some recent research on housing and home generally, international housing rights jurisprudence, potential costs of implementing a constitutional right to housing in Ireland, and contemporary distributive justice issues. One key question is what would a right to housing cost? It is important to point out that the overall objective of Irish housing policy is that every citizen in the State should have access to good quality homes: to purchase or rent at an affordable price; built to a high standard and in the right place; offering a high quality of life (Housing for All 2021). Between 2001 and 2020 some €29bn. was spent on this objective, a further €12bn. is committed in Housing for All  by 2030. A recent Parliamentary Budget Office Report calculates that the total cost of meeting all existing housing need would be approximately €29bn. In this context, a constitutional right to housing would build on the existing and extensive legislative and resource commitments of the State, and consequently, the anticipated costs of implementing a constitutional right to housing are no longer a mystery.

The Submission concludes that shifting the constitutional basis of housing from “unenumerated rights” and “bodily integrity,” to a specific Article approved in a referendum, linked to modern international jurisprudence, would signify a major and historical step, while at the same time preserving the common law tradition, and separation of powers doctrine.

CHLRP submission to the housing commissions