AMONG MEASURES TO address the ongoing housing crisis, some Irish political parties have suggested constitutional amendments guaranteeing a right to a home.
A bill by People Before Profit-Solidarity would enshrine the right to housing within the Constitution – leading to arguments among commentators as to what exactly this would mean in practice.
Some critics have suggested that the bill would mean the Government could forcibly evict people from their homes. But is this actually true? Let’s take a look at what exactly the bill proposes.
The proposed amendment laid out in the bill would have to pass through several stages in the Dáil and Seanad – and a referendum – before it could be signed into law. It proposes adding the following English wording to the Irish constitution:
An explanatory memorandum submitted with the bill explains the bill is being proposed partly because “among the various rights enshrined by Bunreacht na hÉireann, the ‘right to housing’ is not one of them”.
Calls to change the role of housing in the constitution has not just been the realm of People Before Profit. Sinn Féin has also proposed an alternative amendment, while the Government itself has established a Housing Commission to suggest wording on a future referendum.
“In its current form, the Constitution provides for the right to private property but not for the right to housing – except in a manner that is somewhat nebulous, imprecise and open to challenges,” the Citizen Advice Board said in a submission to the Housing Commission.
The People Before Profit bill has passed the second stage in Dáil Éireann, meaning the general principles of the bill have been debated.
However, it would still need to complete a further three Dáil stages before it could be sent to the Seanad, where it would then pass through a further five stages, before being put to a referendum.
Despite still being at early stages, the bill has garnered a substantial amount of opposition online.
One popular video on Facebook, viewed more than 145,000 times, focused on what the proposed 39th amendment would entail.
The video went so far as to claim that the Government could, if the amendment was passed, forcibly remove people from their homes.
“What that means is that we will not own our own property anymore,” a commentator says in the video.
“If you’re living in a three-bedroom house — yourself and your wife and two kids — and the kids grow up and it’s you and the wife there. Well, then the State has the right to come in and take you out of that house.
“If you are living in a council house, they can take you out of the council house and put you in a one-bed house, because you only need one bed for you and your missus, because the kids have moved out.”
He later claims that the term “residents of Ireland” used in the proposed amendment applies to anyone on Irish soil.
“This means they can move you out of your home, if your home is under-occupied, and just give it to some other resident of Ireland, who may have come in the day before.”
But is this interpretation fair?
A spokesperson for People Before Profit told The Journal that the goal of the ‘residents of Ireland’ wording was to protect people who have a visa to work and live in Ireland.
“It says ‘residents’ to ensure it’s not limited to citizens,” Nick Lee told The Journal. “It means that protection against eviction, or the responsibility on government to ensure decent housing, cannot be limited to only some groups.”
Lee also pointed out that Article 43, the section of the constitution that addresses private property, already says the state may “delimit” these rights for the common good.
“[The proposed amendment] doesn’t confer a right to anyone to reside in the state,” Lee said. “It doesn’t extend or alter current regulations or procedures for entry to the state etc.
“We have a large workforce from outside the state who are not citizens, many of our nurses, care workers, construction and transport workers are not citizens.”
John O’Dowd, an Assistant Professor who teaches constitutional law at UCD’s School of Law, told The Journal that it was unlikely that people who had just entered the state would be covered by the bill as it was worded.
“The courts in the UK and Ireland, in a variety of contexts, generally treat residence as involving not merely physical presence in a country at a particular point in time, but as an intention to remain there for some substantial period of time or for some specific purpose and also a degree of reasonable expectation of being permitted to remain.
“A tourist is clearly not a resident of Ireland, and I doubt whether a newly arrived asylum seeker is either, although it might be debatable at what point he or she subsequently becomes one.”
When it came to the prospect of whether the amendment might allow the government to move people from their homes as outlined in the first two claims from the video, experts who spoke to The Journal said that there was no clear path from the proposed amendment to additional evictions.
O’Dowd explained a subsection of the amendment states that the State shall delimit the right to private property in order to ensure the common good and to vindicate the right to housing. This, he says, could be read as meaning that the new right has no special priority over any other constitutional rights with which it might come into conflict.
These other rights would include the right to “inviolability of the dwelling”, which prevents a person’s current home from being forcibly entered.
“That would not mean that the right to inviolability of the dwelling would automatically take priority over the right to housing,” O’Dowd said, “merely that the courts would review whether a fair balance had been struck between them.”
The spokesperson for People Before Profit provided a more forceful response to claims the bill would allow government-led evictions.
“This suggestion is ludicrous as a simple look at the bill’s provisions would make clear,” Lee told The Journal. “There would be no legal or constitutional basis for such actions even if the measure were approved.”
Purpose of the Bill
Given that the bill is unlikely to do many of the things that the widely watched Facebook video claimed, what is its the purpose according to People Before Profit?
“Regularly, the government and individual ministers claim that the constitutional provisions around private property mean that rent controls, the compulsory purchasing of derelict sites and any measures to stop the hoarding of land by developers, could be unconstitutional.
“Our bill is an attempt bring clarity to this issue,” Lee said of the proposed amendment. “The right to private property would not be removed or altered in our bill, it would simply no longer be a reason for a government not to address the crisis.”
The Citizens Information Board, has also noted that, as the constitution currently stands, “there is little to suggest that the courts would view constitutional property rights as imposing a barrier to radical housing reform, should appropriate safeguards be included”.
“My impression,” O’Dowd said, “is that the proponents of the amendment intend that the right to housing should be superior in all circumstances to the right to private property of those who provide, or could provide housing, but not necessarily or in all cases superior to the property rights of those who own their homes.
“Even in the Soviet Union, such a distinction existed, in that the only forms of private ownership recognised were of individual dwellings (which would have been the case even if Trotsky rather than Stalin had been in charge).
“Perhaps the most substantial criticism of what is proposed in the form of this amendment is that the Soviet experience shows that it is an illusion to think that the right to private property can be meaningfully guaranteed at all if it is confined to such a narrow area.”
So, how would this affect the hypothetical example of a couple being evicted from a three-bedroom council house when their children move out?
O’Dowd told The Journal, that even without the proposed amendment, such a couple could not successfully “claim that being relocated to a more appropriate form of council accommodation is necessarily a breach of their fundamental or human rights”.
“It is more a question of whether a fair balance has been struck between the competing rights and interests in the context of the management of the social housing estate.
“I don’t think making the proposed amendment would actually have much effect on such a scenario.”
Another constitutional expert also told The Journal, off-record, that the amendment would be unlikely to have any dramatic consequences.
Lee also said that he did not foresee his party’s bill impacting council tenants negatively.
“The rules around council housing are developed by councillors and the executive of councils in line with national legislation,” he said. “This bill would have no impact on this as council homes are not private property.”
O’Dowd also mentioned that an alternative Sinn Féin proposal “seems much more like the kind of amendment that might actually be put to the People and approved”.
This bill, which is currently going through the second stage of the Dáil, proposes the state should be constitutionally bound to take “steps” to “prevent and reduce homelessness” and ensure a right to “appropriate and affordable housing”.
The 2020 Programme for Government commits to holding a referendum on housing, and the Housing Commission has sought public consultations on the proposed referendum, however the proposed wording for a constitutional amendment on housing that the government will put forward has not yet been announced.
However, O’Dowd cautioned against forecasting how any amendment would work in practise.
“Overall, it is difficult to say definitively that a particular proposed amendment would or would not have specific effects,” he said, “especially if one does not know what Government or majority in the Dáil would be making policy as to how it would be implemented.”
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