Should The Right To Housing In The Constitution Be Inserted?

Published on 20 May 2021 at 13:58

Developments in Kildare, where so-called REITs (Real Estate Investment Trusts) bought up houses in bulk, in a housing estate, resulted in REITs competing with first-time buyers. 



Meanwhile, first-time buyers across the country are struggling to afford to buy their own home whilst REITs enjoy tax breaks. Thus raising the question; should the right to housing be inserted into the Constitution?



The majority of constitutional amendments in Ireland can only be passed by referendum, which means that if the right to housing can be inserted into the Constitution, then it must be done by holding a referendum. 



According to Focus Ireland, ‘the Irish Constitution protects property rights under both Article 43 and Article 40.3.2. The State is allowed to limit property rights in the interests of the common good and when the needs of social justice require it. In decades past, the Courts have taken a strict view of the protection of property rights, setting a high bar for when these rights can be limited. More recently, the Courts have been deferential to the Oireachtas in determining when property rights can be restricted.



As a result, lawyers take different views on when property rights can be restricted, with the most conservative interpretation currently winning out. Focus Ireland elaborated further by stating that ‘without a floor of protection through a right to housing, it is very difficult in practice to compel the State to take action when a family is homeless. Some argue that one route to resolving the current impasse on property rights is for the Oireachtas to pass legislation and allow the Supreme Court to determine its constitutionality. It is the Courts – and not the Attorney General – which determine the constitutionality of laws'



However, in practice the political system is caught in a loop which is constraining its law-making power, Focus Ireland mentioned. This is because Article 15.4.1. prohibits the Oireachtas from enacting legislation which is unconstitutional. Further, the Government will not enact legislation if the Attorney General advises that such legislation is unconstitutional. If the next Government chose not to follow the Attorney General’s direct advice, this would be a departure from convention.



Testing the constitutionality of laws affecting property rights through the Courts is also a piecemeal, slow approach to addressing the issue. It will take time to build up a bank of precedents sufficient to change the current conservative interpretation of Article 43, the charity added. 



Focus Ireland further advocates that a referendum may be a more direct path to change. Importantly, it would also make clear in our Constitution that the Irish people recognise a right to housing for all, which does not displace the protection of property rights, but ensures that they are properly balanced in the interests of the common good.




In the 2020 Irish general election campaign, Focus Ireland said that ‘Labour, the Green Party, Sinn Féin, the Social Democrats and People Before Profit have all pledged support for a right to housing’.  The Programme for Government agreed between the current coalition partners, Fianna Fáil, Fine Gael and the Green Party mentions a referendum on housing.



According to the Programme for Government, ‘over the next five years we will: put affordability at the heart of the housing system...Prioritise the increased supply of public, social and affordable homes’. 



It also commits to tackling homelessness and ensuring affordable home ownership. However, according to Sinn Féin Spokesperson on Housing, Eoin Ó Broin, "worryingly there is a reference to a referendum on housing, but not on the ‘right to housing." 



This is not the first of many issues which the Government has failed to address as the housing crisis continues to grow. The housing issue has returned to the tables of the Government but has not gone away despite being one of the central issues in the 2020 general election campaign last year. The Government needs to set a timeline for when a referendum on the right to housing will take place to insert this right into the Constitution. 



Evidence clearly shows that it has widespread support from parties in the opposition, as shown by their 2020 general election manifestos. It remains to be seen whether it sets a timeline for when this referendum will take place or whether this referendum will ever take place. 



In the short-term, the Government can implement measures to tackle the housing crisis, such as a vacant-homes tax on vacant properties, a three-year rent freeze and ending the tax breaks that REITs enjoy by increasing stamp duty. 



The housing crisis is not an issue that will end any time soon for the Government. It is likely to be an issue for the lifetime of this Government which can be addressed through Government action and by Government, having a central role in dealing with the housing crisis through increased housing supply by increasing support for local authorities to lead this increase in supply. 



Without significant Government investment in delivering more local authority homes, and public housing on public land, the housing crisis will continue to be an issue for generations to come. It is an issue that the Government will need to pay close attention to, as any failure to deal with this issue which has continued to erupt over the last decade, will result in heavy losses for the Government at the ballot boxes in future elections. 



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