DR PADRAIC KENNAargues for a fresh examination of housing law and policy dynamics
HOUSING IN Ireland is big business, increasingly driven by global, EU and national forces. It accounts for a significant element of legal work. As people’s main asset and repository of wealth (or debt), as a centre of security, home life and consumption, housing acts as a focal point for many areas of law, perhaps even emerging as a new discipline.
However, it is now clear that many of the legal paradigms and institutional approaches are acutely out of date and detached from contemporary policy development.
Housing consumers lack basic protection and have little confidence in the legal system, with inadequate remedies, unacceptable delays and costs, and unpredictable outcomes. The public, political and legal discourses remain ensnared within the free market versus State provision dichotomy.
Meanwhile, there have been far-reaching legislative reforms in land and mortgage law in 2009 and the EU-IMF deal demands greater competition in conveyancing.
However, within the growing web of public-private partnerships, mortgage defaults and stratified housing access and tenure, echoes of earlier times still resonate, when the Irish State could adopt discretionary or principles-based regulation or freely determine levels of annual housing-related spending and taxation.
Housing law is incongruous with housing policy in many aspects within all three elements of the State: the executive, legislature and judiciary. Of course, the legal and policy domains occasionally overlap, such as in the making or interpretation of legislation, but their separateness outweighs their occasional interplay. Populist arguments of public sector implementation deficits eclipse many basic legal and institutional deficiencies in regulating the Irish housing system as a whole on a sustainable basis.
The dissonance between law and policy is clearly visible in the avoidance of any consideration of constitutional, legislative or curial roles in the development of housing policy. There is no serious transfer of such nebulous State housing policy concepts as “social inclusion” and the more cosmetic “sustainable communities” into legally defined constructs.
In any case, the courts have marginalised policy considerations as being solely within the remit of the Oireachtas or the relevant Minister. Even the potentially invigorating constitutional concepts of social justice and the common good have been relegated into the arena of policy (held to be reflected in legislation), and the courts, often relying on traditional liberal English constitutional principles, tread a cautious path, fearful of entering this unsure and highly charged ground.
Indeed, Irish courts largely interpret housing-related legislation in the context of 18th- and 19th-century precedents, variously constrained or facilitated by the Constitution, and more recent enactments reflecting rights for women, families and others.
A type of feudal treatment is often reserved for social housing tenants and other marginalised groups in some of the lower courts, where status or social position trumps any notions of citizenship or substantive equality. In any case, social housing legislation is dominated by the creation of systems for controlling tenants, encouraging their salvation through subsidised owner-occupation, or facilitating contracting out of obligations.
Housing rights advocates claim to offer an alternative model for directing State law and policy, sometimes as a substitute for politics. Of course, the Treaty of Lisbon with its binding Charter of Fundamental Rights, together with the ECHR Act 2003, will increasingly impact on housing law, and there have already been some significant cases.
Many international human rights instruments could be incorporated into contemporary policy and legislation, despite the legal arguments on separation of powers and justiciable socio-economic rights arising from our variation on the Westminster model of government.
But even suggested Irish legislative rights to shelter may fall far short of contemporary international human rights norms on rights to adequate housing. Concepts of minimum core State obligations and their progressive realisation, however, might offer useful indicators in the development and evaluation of law and policy. A significant challenge lies in defining legally enforceable norms within the overarching market model, and positioning specific, timely, measurable and achievable human rights standards within the existing and emerging Irish and EU consumer protection, regulatory and enforcement systems.
The significance of social housing is rising immeasurably within the financial rescue regime created by Nama and the collapse of the normative owner-occupier housing market. But policies based on traditional nationalist and Roman Catholic communitarian concern for the poor are being displaced in favour of market-oriented philosophies.
Legislation in 2009 created a scheme whereby the Irish State adopted the role of ultimate subprime lender, as Ministers sought to match the fervour of mortgage lenders, estate agents and developers in promoting the iconic role of the market. The appropriation of social housing as a tool for dealing with the crisis of housing market overproduction is also creating new types of tenancies for poor people.
All this is taking place in the context of few effective consumer or human rights-based advocacy agencies, or any representative organisations of social or private tenants.
The existence of national representative organisations of homeowners, mortgage borrowers or those requiring adequate and affordable housing, could dramatically alter the housing debate and legislative programmes.
Within the shadow of the mortgage market crisis, a fresh examination of the integral dynamics of law, finance, consumer rights, rented housing, residential infrastructure, regulation, subsidised/social housing and contemporary definitions of housing need is urgently required.
Housing Law, Rights and Policy, by Dr Padraic Kenna, is published this month by Clarus Press
