Why the right to housing should be enshrined in the Irish Constitution

The haunting story widely reported recently of the family with three children under the age of six found sleeping rough in Dublin has once again focused a bright light on the desperate crisis of homelessness in Ireland. As the media coverage over the past months has made clear, this family is one among more than 620 families, including more than 1,300 children, who are homeless.

In the face of this crisis, there is a glaring lack of legal protection for people who are homeless. There is no right to housing in Irish law. A right to housing in the Constitution would not mean the right to a key to a home for all. A constitutional right to housing would, however, put in place a basic floor of protection. It would help alleviate a crisis such as this. It would safeguard against this unacceptable emergency ever happening again.

As the law stands, in cases involving serious lack of adequate housing, the only rights that can be legally relied on are rights around the edges of the issue. These rights are of two kinds: procedural rights and substantive rights.

The procedural rights include the right to apply for social-housing assistance; the right to be assessed for social-housing assistance; and the right to an independent proportionality assessment where your right to privacy and family life under article 8 of the European Convention on Human Rights (ECHR) is interfered with.

Among the substantive rights are the right to fair procedures, which include the right to a proportionate decision where rights are infringed; the right of appeal; the rights to transparency and compliance with the principles of natural and constitutional justice; the rights for children to adequate shelter, food, clothing, medical care and education; the right to privacy; the rights to life and to bodily integrity; the rights to family consortium, to dignity and to person, and the ECHR article 8 right to privacy and family life.

Families living in cars

In our work at the Mercy Law Resource Centre in Dublin we provide legal help for those who are homeless or at risk of homelessness. Every week we meet individuals and families who are homeless and living in their cars. These include families with infants. They are living in their cars because the local authority has refused to provide them with emergency accommodation or has told them that there is simply none available.

We meet families who are being accommodated for prolonged and indefinite periods in one room in hotels and B&Bs, which is grossly inappropriate for their needs, for their health and for their dignity.

In such accommodation they are, for example, unable to cook for their family. They often have to travel great distances to bring children to school, a journey that may simply not be possible. We meet people who are in local-authority accommodation with major issues of overcrowding, and families in local-authority housing in fear for their lives due to serious antisocial behaviour.

The real effect of the absence of the right to housing is that in these situations there is no clear right to rely on. The rights around the edges are all that can be invoked. Action in law requires the most severe and extreme cases and innovative use of the law, relying, for example, on the right to bodily integrity.

The fundamental failure to, for example, provide emergency accommodation to a family with young children cannot be challenged directly. The gap in the law is clear.

The right to housing is recognised in Europe in the constitutions of Belgium, Finland, Greece, the Netherlands, Portugal, Spain and Sweden and in the legislation of Austria, France, Germany, Luxembourg and the United Kingdom.

Around the world, the right to housing is included in 81 constitutions. The right to adequate housing is provided for in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. The right to housing, if recognised in our Constitution, would be a major step towards protecting people facing homelessness.

With a right to housing in the Constitution, the courts could review the decisions of the State as to whether they adequately protect the right. The courts could look at the decision as to whether it was “reasonable” or “proportionate” by reference to the right. The courts could review whether the right was being respected.

Judicial oversight

A right to housing would mean State policies in relation to housing and homelessness would have to respect the right to housing. For example, if the State decided to cut funding to homeless accommodation, the courts could review this decision in a case to assess whether the right to housing had been adequately protected. A right to housing would allow the courts have judicial oversight over whether this basic right was adequately protected.

The right to housing would help those facing homelessness now and would be a fundamental safeguard against the recurrence of this gravely unacceptable crisis. At this time of our gradual economic recovery, we have an opportunity to consider afresh who we are as society, to ask ourselves what we, in our shared humanity, consider that an evolved, decent and humane society protects for every person.

The right to housing in our Constitution would put in place a basic protection in recognition that a home is central to the dignity of each and every person and a foundation of every person’s life.

Maeve Regan is managing solicitor of Mercy Law Resource Centre, an independent law centre providing free legal help for those who are homeless or at risk of homelessness (mercylaw.ie)