Is it time for a referendum on a right to housing? the Oireachtas housing committee debated last week

Last week members of the Housing Commission clashed politely at the Oireachtas housing committee, over whether the government should add a right to housing to the constitution.

The Housing Commission reported earlier this year that it was split as to whether the inclusion of the new constitutional right, would protect vulnerable households and create the systemic change needed to tackle the housing crisis.

Ronan Lyons, associate professor in Economics at Trinity College Dublin, said the constitution does not block the government from creating a healthy housing system.

However, including a right to housing in it could result in some people being prioritised over others, he said.

“Those who would, so to speak, ‘win’ under the new system would be those with better access to the courts system, and we know that, ultimately, access to the courts becomes easier with more means,” said Lyons, at the committee meeting.

There is a real risk, therefore, that the change would enshrine housing inequality rather than combat it, he said.

But Conor Casey, a senior law lecturer at the University of Surrey, argued that a right to housing could help those most at risk, in the same way that other constitutional protections have worked in favour of vulnerable children.

“Looking at the sweep of our constitutional history and how rights to primary education, particularly for children with special needs, the State’s duty to look after children at risk when their parents cannot,” he said. “The court’s role has been very valuable there.”

Constitutional change is not a silver bullet, said Casey, but “just one piece of a larger jigsaw of policy and measures”.

A spokesperson for the Department of Housing said an inter-departmental group is being established to develop policy proposals on the issue and is set to meet in early December.

It will take advice from the Attorney General, among others, and is expected to issue recommendations in the first half of 2025. “Proposals regarding the scheduling of a referendum will be considered at that time,” said the spokesperson.

Proposed wording for a referendum

The Housing Commission was established in December 2021 to take a deep look at how Ireland’s housing system is set up, and should be changed, including the issue of a proposed right to housing amendment to the constitution.

The commission members were split on the question, and so they put out two separate reports: a majority report and a minority report.

The majority report recommended that a referendum be run on a proposed amendment, that “the State recognises that having a home is of fundamental importance to quality of life and that access to adequate housing, by facilitating the development of family, social and community relationships, promotes the common good”.

“The State therefore guarantees to every citizen a right of access to adequate housing and pledges, as far as practicable, by its laws to protect and vindicate that right,” it says.

Speaking at the Oireachtas housing committee, Lyons – one of the two commissioners behind the minority report – said both sides agree that the constitution is not causing the housing crisis at the moment.

“There is unambiguously no constitutional barrier to a healthy housing system and no barrier to passing legislation and policies that would lead to and maintain a healthy housing system,” he said.

Rather than amending the constitution, the government should focus on introducing legislation where necessary, to change the housing system, says the minority report.

“The Minority is of the view that, given the systemic nature of the housing crisis, legislative remedies, rather than constitutional ones, should be prioritised, as these are more likely to yield systemic solutions,” says the report.

If a constitutional change is needed it should place an obligation on the state to draw up a long-term housing plan that can be reviewed by the courts rather than conferring individual rights, it says.

“This would frame housing as a societal problem that the State is obliged to tackle rather than an individually enforceable right,” says the minority report.

“The emphasis would be on whether the State is adequately meeting its aims, rather than the impact on a particular individual,” it says.

Focus on individual right

Much of the debate at the Oireachtas housing committee centred around the benefits or otherwise of granting individuals the right to take cases, if their need for adequate housing is not met.

“Granting of individual rights to housing does nothing towards generating enough housing to accommodate all who are in need,” said Michael O’Flynn, CEO of the O’Flynn group, the other commissioner behind the minority report.

“The only way the right of every citizen to housing can truly be vindicated is to create enough houses and a properly functioning housing system,” he said.

Fine Gael TD Michael Creed agreed with the minority report and said he was worried that the state would end up spending money on compensation to individuals instead of on building houses.

“If Joe Citizen, as somebody who has been on the housing list for ten years or who is homeless, brings his case to a constitutional court, the outcome is that the State must respond to his vindicated housing right,” said Creed.

“It means that that citizen gets a remedy from the State as an individual,” he said. “That is only vindicated at the expense of others.”

Casey, the University of Surrey law lecturer, said that proposed wording in the majority report creates a constitutional obligation on all branches of the State, to come up with policy and legislation to allow people to access their right to adequate accommodation.

“It is not about individual, specific guarantees that mean people can sue and get a house,” said Casey . “It is about putting in place policies, laws and so forth that are reasonably and cogently fitted to providing avenues and circumstances in which citizens can secure adequate housing.”

Judges usually don’t award big payouts in these circumstances, he said. For example, a person who was remanded in custody for two years while awaiting trial was awarded €5,000.

“There was quite a long delay in vindicating their right to a fair trial and liberty,” said Casey.

Adam Boyle, a solicitor with the Mercy Law Resource Centre, speaking on behalf of the Home for Good campaign, said that individual legal cases can and often do cause systemic change.

“If there is a policy that fundamentally interferes with an individual’s enumerated rights, that policy may be unconstitutional and can be struck down, causing systemic change,” he said.