Housing Commission’s effective work on policy stymied by tortured exchanges on referendum

“Where’s Darragh?” asked the Taoiseach as he entered the Sycamore Room in Government Buildings at the start of this year.

Leo Varadkar had just been reinstalled as head of government and had put the housing crisis front and centre of his priorities.

He wanted to meet the Housing Commission, a group of experts convened by the Government to future-proof housing policy. A place had been set for Minister for Housing Darragh O’Brien but it was empty.

Afterwards, the press and Opposition seized on O’Brien’s absence. Privately, some sources believe O’Brien was “extremely annoyed”, but both he and the Taoiseach dismissed it as a clerical error.

Large household size makes Ireland clear outlier in Europe - ESRI report

---

Housing is the top issue for voters, especially those aged 25-34

---

Voters largely unmoved by resignation of Varadkar and elevation of Harris

---

It was probably the first time the Housing Commission crept into the public consciousness, and only as a backdrop to political theatre.

Established under a programme for government commitment, it is supposed to look at thorny problems that could compound – or suggest solutions that could alleviate – the housing crisis, and produce a report by the end of July. It was also handed the task of developing proposals for a constitutional referendum on housing – including the wording.

By the time the commission sat down with the Taoiseach, there was already a battle behind the scenes. It is now set to blow through its report deadline, while infighting has bogged down its work on the referendum.

Two housing commissions

There are, in the view of one person with knowledge of the body’s deliberations, two housing commissions.

One focuses on the main task: eight of its nine areas relate to housing policy, the costs of construction, the capacity of the building sector, the rental market, housing affordability, social housing and the like. This work is largely businesslike and is beginning to impact policy. In April, the Government waived development levies on new homes, partially on the suggestion of the commission.

It has also made its presence felt on the vexed issue of how many homes the State should be building – and whether targets in the Government’s Housing for All plan are sufficient. Unpublished research by the commission shows Ireland may need up to 62,000 homes built every year to 2050 – almost double the Government’s plan.

However, insiders say this work is often delayed by tortured exchanges over the question of the housing referendum, which has monopolised many meetings – this is the second, more fraught element of the housing commission that sits alongside its more businesslike incarnation. And this is where a deep divide has emerged.

The insertion of a right to housing into the Constitution is divisive – many civil society groups say it would be a valuable counterweight to property rights currently enshrined in the Constitution. Opponents dispute this, warning of unintended consequences.

[ Ireland may need up to 62,000 new homes a year, Housing Commission indicates ]

The programme for government commits the Coalition to holding a referendum on housing. The commission was asked to advise the Government on “the critical factors for consideration” and make recommendations on the wording of an amendment to be put to the people.

A subcommittee was set up under the leadership of Ailbhe O’Neill SC, a Trinity College academic with extensive experience in constitutional and regulatory law with a research focus on property rights and regulation. Last year, a 200-page report was produced, including proposed wording for a constitutional amendment, to committee members.

After it was first presented, O’Neill did more work on it – but while a “slimmed down” version was given to the commission in June, the recommendations remained the same.

However, it has become a charged debate. Some members believe the issues at play are too complex, and the Government should be presented with a range of options – rather than a single wording – with one favoured by the commission, but giving the Coalition latitude to choose another.

There are also concerns among some on the commission about where exactly the amendment would be put into the Constitution. One issue is that if it is created as a fundamental right, the State can be sued for failing to make good on it. There is a school of thought that it should be inserted in article 45 – a section that deals with “directive principles of social policy” – basically, guidelines for the Oireachtas when making policy, but which cannot be considered by the courts.

Making it a directive principle, rather than a right that can entail legal action, some on the commission believe, would protect the State from the risk of huge costs and endless litigation.

Experts, however, warn against putting any amendment in a part of the Constitution that would effectively make it toothless. Article 45 has no weight in the eyes of the courts, says Trinity College Dublin associate professor in law Dr David Kenny, adding that it has also been serially ignored by the Oireachtas.

To insert the amendment into article 50 would be “a rhetorical gesture of adding it to the Constitution but it would have no legal effect and it would be a bit outlandish to expect it would have a serious impact on legislative deliberations,” Dr Kenny says.

The disagreements show the high-wire nature of amending the Constitution, where wording and placement have a significant impact. It is not known exactly what wording is in the O’Neill report – a version of which has been sent to the Minister for Housing by commission chair John O’Connor – or where it suggests the amendment could be made. However, draft versions are understood to locate it in article 40, which would make it a fundamental right.

One source who has seen a draft wording said it was “in the middle end of the spectrum”. However, the same source believes the draft wording could “give ammunition” to those opponents who argue it would end up in the courts.

The process has been made all the more difficult by a dramatic series of threats made by outsiders against some of the members working on the referendum question – including death threats.

People briefed on the threats say they were “very severe” – with far-right activists suspected. One message spread about the housing referendum on Telegram claimed “they’re coming after everyone’s houses in this country that are Irish”; another claimed the referendum was a “smokescreen for dealing with the real culprits of the homelessness and housing crisis”.

A commission spokesman confirmed a number of threats were made to members “by individuals or groups opposed to the holding of a referendum on housing”.

He said: “These are matters for the gardaí and appropriate steps have been taken in consultation with them.”

Internally, differences of opinion on the constitutional issue came to a head on June 15th, at a “difficult” meeting of the commission which saw “serious disagreements”.

The report was again discussed at a meeting last week, which also saw backlash over the publication of a minute of the June 15th meeting which contained no detail of the debate over the constitutional issue – instead noting that it was discussed in “closed session”.

An internal minute circulated to members is understood to have more detail, with some objecting to the less detailed version being published. The minute was later removed from the Housing Commission’s website. A spokesman for the commission said it was taken down “in order to review it and will be replaced shortly”.

Minority report

A report on the referendum has now been sent to O’Brien’s office. However, while it is believed a majority of commissioners will stand behind the version sent, it does not enjoy the full support of all members. At least two – property developer Michael O’Flynn and academic Ronan Lyons – are understood to be opposed, and four sources with knowledge of the situation now say a minority report is expected.

A commission spokesman said the report sent to O’Brien is a merely a draft for information purposes, with a finalised version “due”, while Government sources said their hope is to bring it to Cabinet in September.

The commission spokesman said it does not comment on individual matters in advance of their release and that members “have been engaging on a collaborative basis and it is expected that all reports will be done by agreement”.

A Government source said it had been told a minority report would be developed “in addition” to the report the Department of Housing has received.

The commission is now likely to refocus its efforts on its main report, but the bruising and time-consuming efforts on the constitutional issue mean this has been delayed until the third quarter of the year

Meanwhile, observers such as Dr Kenny question whether the issue should have been given to the commission at all.

“It was surprising that the Housing Commission – which has a wide policy reform agenda to consider – was tasked with answering the complex constitutional questions thrown up by a right to housing,” he says.

While acknowledging that the commission has a legal expert as a member, he notes the majority have housing policy expertise but are being “asked to advise on a very challenging piece” of constitutional reform.

“It also lacks the popular or political legitimacy of a citizens’ assembly or Oireachtas committee to advise on such questions. It is a very difficult brief.”

As a divisive and polarising debate on this question beckons, the way ahead looks as bumpy as the road travelled.