Berlin referendum shows the way on fixing Ireland’s housing crisis

As housing costs continue to surge across Ireland, pushing people like me into exile in search of somewhere to live, some inspiration is to be found in one of Europe’s largest cities. It comes in the form of a referendum, held last Sunday in my adopted home of Berlin, as the nation went to the polls in Germany’s general election. In Berlin, where rents have gone up by 45 per cent in five years, and where 86 per cent of the population rent their home, campaigners have spent the past three years pushing for a referendum to expropriate housing from corporate landlords. All housing owned by large for-profit companies would be compulsorily purchased by the state, for the public good.

The campaign’s success in Berlin serves to expose how Ireland’s constitutional bent towards the interests of landlords is perpetuating our own crisis. It follows a wider trend of political action on the issue across Europe this summer. In June, Sweden’s Prime Minister became the first ever to lose a motion of no confidence after proposing an end to rent caps on new-build homes in the midst of Sweden’s housing crisis. A fortnight ago, 15,000 people marched in Amsterdam in a demonstration against soaring house prices and rents across the Netherlands.

Berlin’s campaign to expropriate is radical. It proposed to move the portfolios of all corporate landlords with more than 3,000 homes in Berlin into public ownership. This would effectively nationalise 240,000 homes, or 11 per cent of the city’s housing stock for ‘a fair price’ (read: to be negotiated). When the final tallies were counted on Monday morning, voters had backed the measure by 59.1 per cent to 40 per cent - an historic victory for a style of grass-roots democratic activism rarely seen in Germany.

The path ahead for the expropriation movement is by no means clear. The article of the German constitution it’s based on (Article 15, which says that “Land, natural resources and means of production” may be nationalised in exchange for compensation) has never before been tested. Any legal challenge (and there will be legal challenges) could go all the way to the Federal Constitutional Court in Karlsruhe and may take years. Furthermore, while Berliners voted conclusively for expropriation on Sunday, a majority also voted for parties (SPD and the Greens) who announced their intention to ignore the results of the referendum weeks ago (referendums here are merely advisory, and not legally binding). Given the popularity of the proposal, this may change. The activists I’ve been campaigning with over the past few months are buoyant. It would be a difficult thing for a government to deny them at this stage.

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By contrast, in Ireland we are hamstrung by the constitutional right to own private property outlined in Article 43. In very strong language, it says people have “the natural right… to the private ownership of external goods”.

Ordinarily, constitutional interests like this are balanced and counter-balanced so as to achieve an equal representation of the rights of all citizens. The 1937 drafters of Bunreacht na hÉireann failed to counter this right to private property with a right to housing. The result has been that since 1986’s Blake v Attorney General case, in which the Supreme Court cited Article 43 in its decision to scrap rent controls, no government has dared to introduce strong measures to get a grip on Ireland’s disastrous housing situation.

Even before the Covid-19 pandemic, when in December 2019 Sinn Féin introduced a rent freeze bill in the Dáil, the Fine Gael government refused. Then-Housing Minister Eoghan Murphy declared it unconstitutional. Scholars disagreed, citing Article 43’s provision that property “ought, in civil society, to be regulated by the principles of social justice”, meaning the State can limit property rights “with a view to reconciling their exercise with… the common good”. But to Fine Gael, the common good takes second prize to the profits of private landlords. The Tánaiste’s recent comments that one person’s rent is another’s pension demonstrated that worldview succinctly.

Only a global pandemic could at last persuade the government, and particularly Fine Gael, to admit that there are emergencies so threatening to the common good that action must be taken to freeze rents and ban evictions. Once they’d done so, who could deny that the housing crisis is fundamentally manufactured: the clear result of a shameful lack of political will? A solution equal to the scale of the problem is now required, and a constitutional right to housing for all is that solution.

The current coalition’s Programme for Government contains a commitment to a ‘referendum on housing’ but is vague on detail. In June, Fianna Fail senators brought forward a private member’s motion to amend the constitution to “ensure that every citizen has the right to housing.” They called for a referendum to be held within 18 months.

But as activists triumph in Berlin, thousands of Irish families remain homeless, and their numbers are growing. The time for a referendum is now.

Hugo Mills lives in Berlin and is training to be a barrister at the King’s Inns