Michael McDowell: Right-to-housing referendum would not lay a single brick

Sometimes it seems that the classical notion of the separation of powers in our democracy is slowly liquefying into a veritable soup of hopeless inability to run the country.

Montesquieu, an 18th-century French political philosopher, saw powers of government or the political authority of the state as properly divided into three channels – legislative, executive and judicial. He believed that they should be separate and independent of each other. However, they can never be wholly separate or independent of each other in practice. The executive power must be accountable to an elected assembly if there is to be genuine democracy. The judiciary must administer justice in accordance with laws enacted by the legislature. And the legislature’s power to make laws must also be subject to judicial review and accord with constitutional safeguards. These political realities are provided for in the Constitution. Absolute separation of powers is neither desirable nor feasible in a democratic state with a written constitution. But significant departure from the separation of powers is fraught with danger.

A case in point is the hapless political proposal to hold a referendum to enshrine a right to housing in the Constitution. If such a right were made personal, there would be a right for someone who claimed to be homeless or inadequately housed to go to court to seek an order compelling the executive arm of the State, the Government and/or statutory agencies, to provide him or her with housing, and/or to compensate them for failing to do so.

While lawyers might salivate at the thought of litigating such rights, there is no reason to believe that such a constitutional amendment would lay a single brick. Unless the judiciary could order the legislature and the Government to provide such funding as the courts considered necessary to solve the housing crisis, and then supervise their expenditure, a constitutional amendment would only enrich the legal profession and politicise the unelected judiciary.

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

[ Split in Housing Commission over proposals for constitutional referendum on right to housing ]

After all, is every 24 year old who wants to live away from the family home to be given a constitutional right to have a new home or accommodation provided by a State which recently abolished bedsits? Or are we talking about a general constitutional duty on the State to ensure that there is an adequate combined supply of social, affordable and privately owned and/or rented accommodation to meet the foreseeable demands of the population?

Well, there is already such a general duty under the Housing Acts. Each local authority in its capacity as a housing authority is legally obliged to have and execute a housing strategy to provide for the needs of its area – whether by planning and development powers, provision of social and affordable housing, or by use of compulsory purchase powers.

The problem is not the law – statutory or constitutional. The problem lies in the pitiful failure of both the executive and legislative arms of the State to deal competently with the massive shortage of housing in a rapidly growing population. Legal duties and powers of housing authorities to provide directly and by planning for the needs of the people are subject to the vice-like grip on local government exercised by the Department of Housing which is supposedly accountable to the Dáil.

It is a centre of paralysis. It considers that, by a combination of financial and taxation measures, it can largely control and stimulate what it terms “the housing market” in a way that meets our social needs. By a number of measures, including financial approvals, planning regulation and minute oversight of housing provision by a system of directives and the activities of the Office of the Planning Regulator, this department has long presided over the creation of the present housing crisis.

[ Why aren’t we grasping the opportunity to invest our spare billions in housing? ]

[ Cliff Taylor: The slow squeeze which has locked younger people out of the Irish housing market ]

The elephantine gestation of its Land Development Agency is a monument to the massive failure of that department and of its managerial puppet-prefects in local authorities to discharge their functions.

Is it naive to expect that a shortly-to-be appointed chief executive of Dublin City Council will show greater interest and application in the statutory duties of the council as a housing authority as his or her outgoing predecessor applied to cycle lane provision or white-water rafting? Will the council address the city’s chronic dereliction and underutilisation of land and buildings for housing?

A constitutional amendment won’t give us an executive that can deliver effectively its own functions.

Politicians talking about railway programmes to be built in 30 years’ time while a recent Public Accounts Committee report speculates that the MetroLink hole in the ground could cost as much as €20 billion over the next 10 years is simply delusional. Dargan’s navvies built the Dublin-Cork railway far faster armed only with barrows, picks and shovels.

We badly need an executive arm of our State that can live up to its name.