Enshrining housing rights in the Constitution could prove to be a damp squib

Should the right to housing be enshrined in the Irish Constitution? And if so, how might it work? Should such a right be given legal teeth, with courts able to enforce compliance with its provisions? Or should the right be recognised in some other way, perhaps by inserting some nice symbolic language in the Constitution to affirm its importance?

More generally, what might be the practical impact of constitutionalising such a right? Could it prove to be counterproductive as Michael McDowell has argued in these pages? Or – as others contend – could it help to guide State action and improve housing conditions?

Five years ago, few were discussing these questions. However, times have changed. Prompted by public anger about housing issues, the 2020 programme for government included a vague commitment to have a referendum on housing. In 2021, the newly established Housing Commission was tasked with making recommendations as to what the referendum might involve. Now, it seems the commission has sent an initial report on this issue to the relevant Minister, Darragh O’Brien.

However, it was reported earlier this week that the commission has suffered a “major split”. Reports should be treated with caution as the commission has not officially commented, but different views seem to have emerged as to the best way of constitutionalising the right of housing. It appears the majority of the commission think housing should be included within the list of fundamental rights protected by Articles 40-44 of the Constitution, with the Oireachtas and government expected to take the lead role in implementing this right through appropriate legislative and policy measures – but with the courts being able to take account of this right in certain limited circumstances.

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In contrast, the minority are reported as favouring the inclusion of housing rights within the directive principles set out in Article 45 of the Constitution, which are not legally enforceable in any way.

This may sound like a highly technical difference of opinion. However, it reflects the existence of two divergent strands of opinion about housing rights and how they should be implemented within Irish law and policy.

In international human rights law, the right to housing is acknowledged to be of fundamental importance. Article 25 (1) of the Universal Declaration of Human Rights recognises the importance of access to decent housing. However, not all internationally recognised human rights are enshrined in the Irish Constitution, or made enforceable by courts. Social rights such as the right to housing are very wide-ranging in scope, and can be properly implemented only through legislation and government policy – not least because this involves complex policy decisions and huge levels of State expenditure. As a result, the job of deciding how to protect such rights is usually left in the hands of the political branches of the State. Courts are reluctant to interfere in this area.

This is the first approach to housing rights, which has been orthodoxy for decades. They are effectively treated as amounting to little more than pious aspirations. The directive principles in Article 45 of the Constitution are supposed to give some general guidance as to how the Oireachtas and government go about the job of protecting social rights. However, little if any attention is usually paid to these provisions. So, if housing rights are inserted into Article 45, or given a similar status within the Constitution, this will in all likelihood have little or no practical impact. It will amount to a purely symbolic gesture, which will not change the status quo.

Civil society campaigners seeking reform in this area argue that this old orthodoxy has not worked. In their eyes, successive governments have failed to discharge their responsibility to protect housing rights. In contrast, campaigners highlight how housing rights are embedded in the constitutional frameworks of states such as Finland, France, Germany and South Africa, where such rights play a ‘programmatic role’: the political branches of these states are supposed to engage seriously with the need to protect such rights, with courts playing a residual role in interpreting legislation and helping to correct egregious breaches of human dignity. Campaigners also argue that enshrining housing rights will counterbalance the protection currently given to property rights by Article 43 of the Constitution, and give a clear constitutional basis for sustained State intervention in the housing sector.

It is this second approach, “programmatic protection”, which the majority of the commission are reported to be considering. There is plenty to be said for it. However, concerns persist.

Sometimes the programmatic approach is caricatured as establishing an individual “right to a house”, which would allow anyone to sue the government for failing to provide them with a nice property. This is not how the programmatic approach works in any state where it has been implemented. Instead, a more realistic concern is that giving courts some limited leeway to review government housing policy might open the way for expensive and time-consuming litigation. Property developers, for example, might start invoking the right to housing when planning applications are challenged. It might also result in judges interfering in policy areas in respect of which they have no particular expertise.

However, as the leading housing law expert Prof Padraic Kenna points out, the Irish courts have shown vanishingly little appetite for second-guessing political decision-making in the social rights area. This applies even in litigation involving clearly enforceable constitutional rights such as bodily integrity and non-discrimination.

Instead, the greatest risk with attempting to enshrine housing rights in the Constitution is that they could prove to be a damp squib. Even if the Constitution is amended to include a programmatic right to housing, it might have relatively little impact. Both the political and judicial branches of the State could end up treating such rights as amounting to little more than nice promises. Having said that, it is worth recognising that the old orthodoxy has lost credibility. There are strong demands for political and legal reform in this area. As such, whatever the Housing Commission recommends should be studied closely, and examined with due seriousness.

Colm Ó Cinnéide is professor of Constitutional and Human Rights Law at University College London