At the start of March 2022, the Minister for Housing, Darragh O Brien, confirmed that a referendum on inserting a right to housing in the Constitution could be held as early as next year.

In order to ensure that members of the public are fully informed as to the necessity of this referendum, the ICHR has carried out significant research into this area, such that by the conclusion of this piece, you should be in a position to answer the following question:

is it necessary to enshrine a right to housing in the Constitution to realise the aim of building more homes through the compulsory purchase of land owned by private individuals and if a specific right to housing provision is not necessary to realise this aim, what is the real agenda behind the proposed referendum?

In this piece we will review:

• the introduction of compulsory purchase orders, which in the main, are granted to statutory bodies, such as public authorities, to allow them to take land off private individuals without their consent;
• the introduction of property rights for individuals;
• the limitations placed on the property rights of individuals through the Constitution, legislation and caselaw;
• the findings from different government commissioned reports and committees regarding the necessity to delimit the right to private property in favour of the common good; and
• actions that can be taken to fight back.

1845-1919
The decision to modernise agricultural production and the subsequent industrial revolution developed the practice of compulsorily purchasing land into a statutorily protected power vested in local authorities and statutory bodies. This is quite a complicated area of law and it is not helped by the fact that many of the pre-1922 acts on compulsory acquisition are still in force in Ireland, such as

• the Land Clauses Consolidation Act 1845;
• the Land Clauses Consolidation Acts Amendment Act 1860;
• the Railways Act (Ireland) 1851; the Railways Act (Ireland) 1860;
• the Railways Act (Ireland) 1864; the Railways Traverse Act 1868;
• the Local Government (Ireland) Act 1871;
• the Local Government (Ireland) Act 1898; and
• the Housing of the Working Classes Act 1890 and the Acquisition of Land (Assessment of Compensation) Act 1919.

1922
In 1922 the Constitution of the Irish Free State was enacted but it contained no general provision dealing with the property rights of individuals, it did, however, contain a specific constitutional guarantee to protect minority churches and educational establishments from the threat of oppression at the hand of the majority under Article 8. This Article 8 reflected an obligation already contained in Article 16 of the Anglo-Irish Treaty of 1921 and a similar provision contained in section 5 of the Government of Ireland Act 1920.

1937
Bunreacht na hÉireann (hereinafter referred to as the “1937 Constitution”) introduced two separate provisions dealing with property rights for individuals, namely Article 40.3.2 and Article 43.

Article 40.3.2 states: –

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen”

Article 40.3.2 is, therefore, directed at the personal and individual rights of citizens and among the rights expressly protected is the right to property.

Article 43 on the other hand is exclusively concerned with the right to property and states: –

“The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods. The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property. The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice. The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.”

The wording set out in Article 40.3.2 and Article 43 has given rise to a commonly perceived view that property rights are weighted too heavily in favour of the individual and that this has created obstacles for the Oireachtas, where it attempts to regulate or control such property rights, in the public interest. As you consider the information in this piece, it will become evident that the caselaw does not bear out this frequent criticism and the question that must therefore be asked is:

if the Oireachtas already enjoy a wide discretion in relation to the restriction or extinguishment of property rights where such restriction is proportionate or in the public interest, what is the real agenda behind the referendum on a right to housing?

1963
In 1963 the Government enacted the Local Government (Planning and Development) Act 1963 (hereinafter referred to as the “1963 Act”). The enactment of this legislation was the first time that substantial legal constraints were placed on the development of land. When the 1963 Act was enacted all local authorities were granted planning powers and all planning authorities were required to prepare and adopt development plans for their areas before October 1967.

1963-1971
Between 1963 and 1971 there was a remarkable increase in the prices paid for serviced land suitable for building and for potential building near cities and towns in the State. In this context serviced land means land that had services such as water, sewerage and drainage available to it as a result of works undertaken by public bodies.

It is said that the high land values and windfall profits arose, in part, due to the introduction of the 1963 Act, before which property development took place with minimal planning regulation and the difference between the values of agricultural land and development land were not great.

After the introduction of the 1963 Act, the zoning decision of the planning authority to concentrate development and confine it to particular lands led to the primary escalation in development land values.

Between 1963 and 1971 the average price for serviced land in County Dublin increased by 530%. In response to this increase in the cost of serviced land, then Minister for Local Government, set up a committee to consider possible measures for controlling the price of building land, in the interests of the common good and for ensuring that some or all of the increase in the value of the development could be secured for the benefit of the community.

1973
In March 1973 a report titled “Committee on the Price of Building Land”, otherwise known as the Kenny Report (hereinafter referred to as the “Kenny Report”), was published.

One of the questions under consideration in this report was:

whether the Constitution imposed obstacles to the introduction of laws to control or regulate the price of building land, or laws which would seek to eliminate many of the obstacles to the speedy rollout of major infrastructural projects.

This Kenny Report is particularly important as the recommendations from this report are often cited as being crucial in resolving the housing and homeless crisis.

The principal conclusion of the majority of the committee was that new legislation should be introduced to allow local authorities to compulsorily purchase land in specific areas called Designated Areas at existing land use values plus 25%, with this land being managed directly by the local authorities or later sold onto developers, with the aim of reducing land costs for housing.

At the time, although there was little case law around restrictions on the right to ownership of private property, the committee still felt that such a proposal would not be found to be unconstitutional if legally challenged. It is also important to note that the Kenny Report was not suggesting that a local authority should have the power to acquire land anywhere at a price below its market value, the proposal advanced was that a court should be authorised to operate a form of price control in designated areas only.

By the time the Kenny Report was published in 1973, the Government had changed, the country was in an economic recession (which resulted in falling development land values) and one the legal cases the committee referred to, to justify their recommendations (the Rent Restrictions Act) was later deemed unconstitutional, as was the Italian legislation on which the recommendation was based – so the findings from the report were never actioned. There was also a concern that the recommendations in the report, if implemented, would be found to be unconstitutional, noting however, that these opinions were on the basis of unfounded criticism that the property rights provisions in the Constitution were/are weighted too heavily in favour of the individual.

The critical question, therefore, is:

could the recommendations from the Kenny Report, be confidently actioned now, given the  constitutional jurisprudence that has followed in the last 50 years?

The reason this question is important is because: if the recommendations from the Kenny Report could be actioned, without fear of successful constitutional challenge, there is absolutely no justification in holding a referendum on a right to housing – if the reason for a referendum on a right to housing is to free up development land for housing as opposed to the realisation of another agenda.

1980’s
The 1980’s gave rise to a significant amount of litigation in the area of property rights – the vast majority of which support the position that property rights are far from absolute and that, in some cases, far reaching interferences with such rights can be justified by reference to the common good.

The reason this is important is because if the case law already supports the position that far reaching interferences with an individual’s property rights is not unconstitutional where this interference is in the public interest, what is the real agenda behind the right to housing referendum?

Examples of a legal cases from this period include: Cafolla v O Malley in 1984, in this case the judge expressed the view that restrictions reasonably required by the exigencies of the common good could not amount to an unjust attack on property rights and listed the following as examples of such legitimate restrictions:

• laws prohibiting fishermen from catching fish at certain times and limiting the nature and size of the catch; and
• restrictions on the hours of trading in licenced premises

– both of which limit the right to private property. The judgement in this particular case was upheld on appeal to the Supreme Court.

A second case from this period is Madigan v Attorney General, this case was challenging the constitutionality of the residential property tax on private dwellings. In this case the Supreme Court held that tax measures which necessarily interfere with citizens property “cannot be challenged as being unjust on that account, if what has been done can be regarded as action by the State in accordance with the principles of social justice and having regard to the exigencies of the common good as envisaged by Article 43.2.”

1990’s
The 1990’s also witnessed significant litigation in the area of private property, but probably more important during this period is the fact that the courts also endorsed the principle of proportionality – which provided that any legislation seeking to restrict the property rights of a person must be of significant importance to warrant overriding a constitutionality protected right.

This principle is not only relevant to challenges around property rights, but this doctrine has proved enormously influential in this realm in particular. In this regard the modern case law demonstrates that, provided the essence of the right in question is respected, then the Oireachtas already enjoys wide discretion as to the manner in which it chooses to regulate or even restrict property rights.

The question, therefore, is:

if the caselaw does not support the position that private property rights will be given supremacy over the principles of social justice or the requirements of the common good, what is the real agenda behind the referendum on a right to housing.

1994
In its 1994 Programme for Government, the then three-party coalition government proposed a review of the 1937 Constitution. This review was to be carried out by an All Party Oireachtas Committee. It was agreed that to prepare the way for the committee’s work, an expert Constitutional Review Group would be established.

May 1995
On 11^th of May 1995, the Constitutional Review Group was established. 15 people were appointed to sit on the review group including 9 lawyers. The terms of reference for this group were: –

“to review the Constitution, and in light of this review, to establish those areas where constitutional change may be desirable or necessary, with a view to assisting the all party committee on the Constitution…..in its work”.

July 1996
The Constitutional Review Group published its report in July 1996, with the report running to 700 pages (hereinafter referred to as the “Review Group Report”). We will briefly highlight the findings of the Review Group Report with respect to property rights.

One of the questions the group considered was: –

“whether Article 40.3.2 (in so far as it concerns property rights) and article 43 should remain unamended”?

Again, the reason behind the query as to whether the property rights provisions in the 1937 Constitution needed to be amended relate back to the frequent criticism that the provisions are weighted too heavily in favour of the individual. The Review Group Report states the following: –

“The Review Group recognises that some of the difficulties of interpretation to which these provisions have given rise have now been clarified by caselaw. It further observes that some of the possible fears about an absolutist interpretation of these provisions, which could severely handicap the Oireachtas in areas such as planning law, have not been realised. Serious consideration was given to the suggestion that these provisions – for all their drafting imperfections – should be left unamended, largely because the law has been, to some extent at least, clarified through the case law. As already indicated, this suggestion was rejected because the present provisions were regarded as unsatisfactory. The Review Group is of the opinion that it ought to be possible to re-draft these provisions so that a more direct, self-contained clause would clearly set out the extent of the States powers to regulate, control, or even extinguish property rights.”

“The Review group suggested that a new self-contained article on property be drafted and that this article contain a new qualifying clause which would provide that “such property rights, since they carry with them duties and responsibilities, may be subject to legal restrictions, conditions and formalities, provided these are duly required in the public interest and accord with the principles of social justice, and that such restrictions, may, in particular, but not exclusively relate to the raising of taxation and revenue, proper land use and planning controls, protection of the environment, consumer protection, and the conservation of objects of archaeological and historical importance”

The Review Group Report states that: –

“this clause would give the Oireachtas extensive rights to regulate and control the exercise of property rights”

The Review Group Report is said to be the most comprehensive review of the 1937 Constitution undertaken by the State to date. The takeaways from this report are as follows:

1. the caselaw up to 1996 has clarified that the courts have not interpreted Article 43 of the 1937 Constitution in an absolutist fashion, meaning that the caselaw confirms that the courts are already weighing the rights of the individual to the private ownership of goods, against the principles of social justice and the common good;
2. up to 1996, there had only been about 7 cases where a plaintiff had successfully established an unconstitutional interference with his or her property rights; and
3. the Review Group Report confirms that the amendment proposed by the Review Group would give the Oireachtas extensive powers to regulate, control or even extinguish property rights.

The question, therefore, is:

if the Review Group Report has itself confirmed that the prior concerns that private property rights would be given supremacy over the principles of social justice or the requirements of the common good thereby impeding the introduction of legislation which would attempt to cure the housing and homeless crisis, have not been realised – what is the real agenda behind the referendum on a right to housing?

July 1996
Following the publication of the Review Group Report, the Government established the All Party Oireachtas Committee on the 1937 Constitution, the purpose of which was to carry out a full review of the 1937 Constitution on an all-party basis in order to establish those areas of the 1937 Constitution where change was considered necessary or desirable and in this regard the committee was to have regard to the Report of the Review Group.

The All Party Oireachtas Committee ran between 1996 and 2007 and during this time published 10 separate reports dealing with the following issues:

• 1st Progress Report, 1997
• 2nd Progress Report, 1997
• 3rd Progress Report: The President, 1998
• 4th Progress Report: The Courts and Judiciary, 1999
• 5th Progress Report: Abortion, 2000
• 6th Progress Report: The Referendum, 2001
• 7th Progress Report: Parliament, 2002
• 8th Progress Report: Government, 2003
• 9th Progress Report: Private Property, 2004
• 10th Progress Report: The Family, 2006

2000
In February 2000, the Taoiseach wrote to the then chairman of the All Party Oireachtas Committee on the 1937 Constitution to ask the committee to consider the constitutional provisions in respect of property rights.

2003
In 2003, Ireland enacted the European Convention of Human Rights Act 2003 which provides at Article 1 of Protocol 1 that: –

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

It is said that the rights guaranteed to private property under the 1937 Constitution and under the ECHR are similar in nature, in that neither impair the right of the State to enforce such laws as it deems necessary, in order to control the use of property in accordance with the public interest.

2004
In 2004 the All Party Oireachtas Committee on the 1937 Constitution published its 9^th progress report titled “Private Property” (hereinafter referred to as the “Progress Report on Private Property”) spanning 456 pages. The findings from the Progress Report on Private Property are particularly important, and include the following extracts: –

“In effect, therefore, the committee was asked to traverse much of the ground covered by the Kenny Report and to examine afresh the question of whether the Constitution imposes unnecessary impediments to legislation which would either control or otherwise regulate the price of building land on the one hand or which would seek to eliminate many of the obstacles to the speedy rollout of major infrastructural projects on the other hand. In this context, the committee considers that its principal function is to examine the property rights provisions of the Constitution generally and to express a view on whether, as commonly perceived, they are weighted too heavily in favour of the individual. In this regard, the committee proposes to examine the recommendations of the Report of Constitution Review Group. As part of these deliberations, the committee proposes to consider whether legislation which sought to impose controls on the price of building land would survive constitutional challenge and, in particular, could the key recommendation of the Kenny Report – namely, that local authorities should be empowered compulsorily to acquire land in designated areas at existing use value plus 25% – be safely enacted in the knowledge that it was likely to survive constitutional challenge.”

“Despite these difficulties, it is important not to lose sight of the fact that a significant majority of constitutional challenges in the area of property rights fail. Contemporary cases where such claims have been rejected include restrictions on the use of gaming machines; control of land use on which national monuments are situated; domestic regulations dealing with the superlevy regime on milk production; challenges to the taxi licensing regime affecting the capital value of a taxi plate and the operation of the ‘red zones’ adjacent to airports which may have the effect of significantly impairing the right of landowners to obtain planning permission for development underneath aircraft flightpaths. Moreover, the right of the Oireachtas to impose restrictions on the right to property in the public interest is by now well established and much of the subjectivity and uncertainty of the relevant constitutional provisions has been tempered on the one hand by the evolution of the proportionality doctrine and by the emergence of relatively settled case-law on the other.”

The report concludes by answering the following question: “Are the conclusions of the Kenny Report still valid?”

“Judged by contemporary case-law, it is nevertheless very difficult to see why the recommendations contained in the Kenny Report would not survive constitutional scrutiny. In the Planning and Development Bill the Supreme Court held that the Oireachtas was entitled to conclude that ‘the provision of affordable housing and housing for persons in special categories and of integrated housing’ was rationally connected to an objective of sufficient importance to warrant interference with a constitutionally protected right and, given the serious social problems which they are designed to meet, they undoubtedly relate to concerns which, in a free and democratic society, should be regarded as pressing and substantial. By extension, therefore, the imposition of price controls on building land would be regarded as an objective of social importance which would warrant interfering with a constitutional right…”

“Accordingly the committee is of the view that, having regard to modern case-law, it is very likely that the major elements of the Kenny Report recommendations – namely that land required for development by local authorities should be compulsory acquired at existing use values plus 25% – would not be found to be unconstitutional. Indeed, it may be that in certain respects, the Kenny Report was too conservative, since there seems no necessity that either the act of designating the lands in question which are to be subjected to a form of price control or the payment of compensation to the landowners thereby affected would require to be performed by a High Court judge…. The committee is not, therefore, persuaded that the existing constitutional provisions place any unjustified impediment to infrastructural development. It does not, therefore, consider that constitutional change is necessary before any reform of the existing system of compulsory purchase and acquisition is attempted…”

“Conclusions: 1 While the committee agrees that the formulation of the relevant constitutional provisions in regard to property rights is wordy and invites subjective judicial assessment and is to that extent unsatisfactory, we note that many of the uncertainties have been clarified by the extensive case-law. We do not consider that it is correct to say that this case-law bears out the frequent criticism that the property rights provisions unduly protect the right of property or create undue difficulties for the Oireachtas where it attempts to regulate or control such property rights in the public interest.

2 Although constitutional change may not be strictly necessary, the committee nonetheless think that change along the lines recommended by the Constitution Review Group may be desirable. The new wording proposed by the Constitution Review Group would have the merit that the property rights provisions were contained in a single self-contained constitutional provision and would perhaps more clearly articulate in express terms the proper balance which must be struck between the rights of property owners on the one hand and community interests on the other.”

In summary the Progress Report on Private Property found that:

1. a significant majority of constitutional challenges in the area of property rights fail;
2. the right of the Oireachtas to impose restrictions on the right to property in the public interest is by now well established;
3. much of the subjectivity and uncertainty of the relevant constitutional provisions has been tempered by the evolution of the proportionality doctrine and by the emergence of relatively settled case-law;
4. judged by contemporary case-law, it is very difficult to see why the recommendations contained in the Kenny Report would not survive constitutional scrutiny;
5. the committee was not persuaded that the existing constitutional provisions placed any unjustified impediment to infrastructural development; and
6. the committee did not consider it correct to say that the case-law bears out the frequent criticism that the property rights provisions in the 1937 Constitution unduly protect the right to property or create undue difficulties for the Oireachtas where it attempts to regulate or control such property rights in the public interest.

Yet again we see that a committee established by the Government have confirmed that the Oireachtas already enjoys a wide discretion in relation to the restriction or extinguishment of property rights where such restriction is proportionate or in the public interest, in those circumstances we must, therefore, ask:

what is the real agenda behind the referendum on a right to housing?

2012
In 2012 both Houses of the Oireachtas passed a resolution to establish a Convention on the Constitution (hereinafter referred to as the “Convention”), the role of which was to consider a number of possible changes to the Constitution and make recommendations. The Convention consisted of up of 100 members, made up of 66 citizens, randomly selected from the Electoral Register; with the other 33 participants being members of the Dáil and Seanad and a representative of each political party in the Northern Ireland Assembly that wished to be represented.

Between January 2013 and February 2014, the Convention considered a range of changes to the 1937 Constitution and made a total of 38 recommendations, 18 of which would require a referendum.

2014
The final topic covered by the Convention was whether the 1937 Constitution should include enhanced constitutional protection for economic, social and cultural rights (hereinafter referred to as “ESC Rights”). In this regard ESC Rights are those rights relating broadly to health care, education, access to housing, food, clothing and water, social security, the workplace, family life and participation in cultural life.

The recommendations from the report prepared by the Convention state the following: –

“The results of the ballot were clear with a large majority (85%) of the members favouring changes to the Constitution in order to strengthen the protection of ESC rights. However, a sizeable minority (43%) of Convention members recommended that the issue be referred elsewhere for further consideration of the implications of possible reforms. The Convention also recommended that there should be a constitutional provision that the State would progressively realise ESC rights, subject to maximum available resources, and that this duty would be cognisable by the courts, and that the provision would not diminish the level of protection already afforded in the Constitution. The Convention also identified a number of specific rights including housing, social security, rights for those with disabilities, healthcare and language and cultural rights which it recommended should be enumerated in the Constitution.”

The findings from this Convention are quite important as they are often cited to illustrate that the majority of citizens of the State would vote in favour of including a right to housing in the 1937 Constitution, if put to a referendum – for this reason it is important to review the specific questions put to the members of the Convention and how they voted:

Question 1

“Should the Constitution be amended to strengthen the protection of Economic, Social and Cultural rights?” – 85% confirmed yes

Question 2

“In the event that the Convention votes in favour of reform, does the Convention wish to make recommendations now or refer it elsewhere for further consideration of the implications of possible reforms?” – 56% said they wished to make recommendations now, while 43% said they wished to refer it elsewhere

Question 3

“If the Convention wishes to make recommendations on the issue now, which options are best?” – this question refers to what amendment would be made to the 1937 Constitution to strengthen ECS Rights. There were 3 options:

Option1: Update Article 45 but keep the first paragraph – 24% voted in favour of this option, noting that this amendment would have made very little different in terms of enhancing rights as article 45 of the Constitution is stated to be solely for the guidance of the Oireachtas in making laws and cannot be relied upon by the courts.

Option 2: Insert a provision along the lines that the State shall endeavour to progressively realise ESC Rights, subject to maximum available resources, and that this duty is cognisable by the Courts – this option secured 16% of the vote

Option 3: Insert a provision that the State shall progressively realise ESC Rights, subject to maximum available resources and that this duty is cognisable by the Courts – the difference between option 2 and option 3 is the word “endeavour” is not included in option 3, meaning option 3 places a heavier burden on the state to enhance ESC rights. Option 3 secured 59% of the votes.

Question 4

“In the event that the Convention wishes to make recommendations on the issue now, are there specific additional rights that should be enumerated in the Constitution?”

As stated earlier, the findings from this Convention are often cited to illustrate that the majority of citizens of the State would vote in favour of including a right to housing in the 1937 Constitution, if put to a referendum.

It is clear from the above table (extracted from the report of the Convention) that 84% of people stated that they would like to see a right to housing enumerated in the 1937 Constitution with only 8% voting against. These percentages illustrate that we have a great deal of work ahead of us in educating the public as to the extent of the powers currently enjoyed by the Government in relation to the regulation, control and extinguishment of property rights.

2016
In 2016 a Citizens Assembly (hereinafter referred to as the “Assembly”) was set up by the government to consider a range of topics including:

• the 8^th amendment;
• challenges and Opportunities of an aging population;
• fixed term parliaments;
• the manner in which referenda are held; and
• making Ireland a leader in tackling climate change.

The Assembly was made up of 99 citizens chosen at random and a chairman. This Assembly ran from 2016 to 2018.

June 2016
In April 2016, the Dáil agreed to establish a Special Committee on Housing and Homelessness (hereinafter referred to as the “Special Committee”) to identify how the obstacles that were impeding progress on housing and homelessness could be surmounted; and the specific actions that needed to be taken to achieve urgent implementation of measures to address the problems involved.

In June 2016 the Special Committee published its final report titled “Report of the Committee on Housing and Homelessness”.

Chapter 9: Legal Issues states the following: –

“Several witnesses and other contributors to the Committee’s deliberations addressed the issue of Article 43 of the Constitution, which deals with property rights, and whether it is necessary or desirable to amend the Constitution to incorporate a right to housing. Differing views were offered on this. There was general consensus among legal experts addressing the Committee that there was no particular legal impediment to the extensive use of compulsory purchase orders as a policy instrument in increasing housing supply…”

The report goes on to state: –

“Addressing the Forum on Housing and Homelessness in March 2016, the then Minister for the Environment, Community and Local Government, Alan Kelly TD, cited the Constitution as a barrier preventing him from passing laws to address the housing crisis, and suggested holding a referendum to remove a provision that protects property owners’ rights. Mr Kelly stated that legal advice on Article 43 had stopped him from introducing a more powerful vacant site levy, which would have imposed a fee on developers who refused to build on unused land. He said that it had also stopped legislation preventing keeping houses vacant and laws that would protect tenants from so-called vulture funds, which invest in undervalued properties and then profit from selling them: “I was not hampered by political or financial obstacles. I was blocked by the Constitution. From the time it is taking to introduce the Vacant Site Levy in order to tackle land hoarding, to protecting tenants from eviction in circumstances where their landlord wishes to sell the property, and many other issues, I was repeatedly blocked from making provision for what I believed was the common good by the strength by which property rights are protected under Article 43 of the Constitution. I believe that we need to honestly re-examine the balance between the protected and legitimate property rights of individuals, as property owners, and the wider needs and common good of society, including housing needs. As a society we need to reflect on the desired impact of the constitution here. I believe that addressing these issues raises politically and socially important issues which will have to be debated over the coming years.”

“In 2004, the Ninth Report of the Joint Oireachtas Committee on the Constitution called for a progressive charge against developers engaged in land hoarding when sites were need for building homes. It was of the view that such a measure was not incompatible with Article 43. The former Minister’s claims have also been challenged by some experts, including the Master of the High Court, Mr Edmund Honohan. He has urged policymakers to use compulsory purchase orders to buy back repossessed homes from so-called vulture funds for use as social housing, pointing out that CPO law allowed the purchase of property where the common good took priority. Addressing the Committee on May 10, Mr. Honohan expressed the view that politicians and lawyers are inclined to interpret things very differently, and that this had given rise to a misunderstanding of Article 43 and the jurisprudence relating to it. Elaborating upon this in his written submission, he stated that there is a surprisingly widespread misconception about the parameters of the Supreme Court’s function: the court, in considering constitutional challenges to legislation, “is always at pains to defer to the primary legislative intention of the Oireachtas and will always start by presuming that the measure is constitutionally sound.” The Supreme Court’s jurisprudence, he notes, has settled on a methodology which owes much to the judgments of the European Court of Human Rights in regard to “public interest” expropriation of private property, both with and without compensation”

“… the notion of ‘public interest’ is extensive. In particular, the decision to enact laws expropriating property or affording publicly funded compensation for expropriated property will commonly involve considerations of political, economic and social issues. The Court has declared that, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, it will respect the legislature’s judgments as to what is ‘in the public interest’ unless that judgment is manifestly without reasonable foundation.”

“Whilst the Constitution does not contain any positive right to housing, noted Mr Honohan, “there really is no basis for suggesting that the common good does not include the provision of public housing.” On this basis, he expressed disagreement before the Committee for calls for constitutional change and a referendum: “I do not believe it is necessary to have a constitutional referendum because the common good requirement is such that it can be argued – and I have made the argument in relation to children – that society demands a paternal view of its role in regard to how to house people.” This view was supported by Professor P.J. Drudy, who addressed the Committee on May 10. He described the constitutional issue as “a red herring” which “had been thrown about since the early 1980s.”

In summary the final report by the Special Committee found that:

1. there was general consensus among legal experts addressing the Special Committee that there was no particular legal impediment to the extensive use of compulsory purchase orders as a policy instrument in increasing housing supply;
2. Edmund Honohan, Master of the High Court, expressed the view that politicians and lawyers are inclined to interpret things very differently, and that this had given rise to a misunderstanding of Article 43 of the 1937 Constitution and the jurisprudence relating to it. Mr Honohan further stated that “there really is no basis for suggesting that the common good does not include the provision of public housing.” And he went on to express disagreement for calls for constitutional change and a referendum stating: “I do not believe it is necessary to have a constitutional referendum because the common good requirement is such that it can be argued…. that society demands a paternal view of its role in regard to how to house people”; and
3. the notion of public interest, is extensive.

So, the question, therefore, is:

if the legal experts (including the Master of the High Court) are in consensus that the Oireachtas already enjoys a wide discretion in relation to the restriction or extinguishment of property rights where such restriction is in the public interest and the notion of the public interest is extensive, what is the real agenda behind the referendum on a right to housing?

March 2017
On the 28^th of March 2017, the first right to housing bill (hereinafter referred to as the “2017 Bill”) was proposed by means of a private member bill by Richard Boyd Barrett, Ruth Coppinger, Mick Barry, Paul Murphy, Brid Smith and Gino Kenny. The 2017 Bill sought to amend the 1937 Constitution by including the following additional wording at the end of Article 43: –

“The State, in particular, recognises the common good as including the right to secure, affordable, dignified housing, appropriate to need, for all the residents of Ireland and shall guarantee this right through its laws, policies and the prioritisation of resources.

The State, accordingly, shall delimit the right to private property where it is necessary to ensure the common good and to vindicate the said right to housing for all residents of Ireland.”

In a Dáil debate on the 20^th of September 2017, Ruth Coppinger stated the following: –

“Another day, another housing Minister. We have had Deputies Alan Kelly and Simon Coveney and now we have Deputy Eoghan Murphy. The faces are certainly changing but the policies are not. In the context of this Bill, the continual refrain we heard from all of the Ministers I have named when asked to deal with the crisis was that it was unconstitutional. Rent controls allegedly were unconstitutional, as were a ban on evictions, the acquisition of any of the 200,000 vacant units or compulsory purchase orders. None of this is true because the housing committee heard last year that the common good overrides private property.”

The 2017 Bill got to Stage 2 in Dáil Eireann before being defeated by a vote. It is worth noting that at the time the then Minister for Housing, Eoghan Murphy, expressed the view that the broader recommendations of final report of the Convention in relation to economic, social and cultural rights (which would include a right to housing) should instead be considered by an Oireachtas Committee.

December 2017
On the 14^th of December 2017 the Law Reform Commission published a report titled “Compulsory Acquisition of Land” (hereinafter referred to as the “Law Reform Commission Report”). The purpose of the Law Reform Commission Report was to review the then current law on compulsory acquisition of land with a view to suggesting reform of the principles and rules that underlay the process. A review of the Law Reform Commission Report, which spans 232 pages, confirms that the compulsory acquisition system in place is Ireland is unnecessarily complex, with more than 70 individual pieces of legislation governing the system.

Some important extracts from the report include the following: –

“It further held that if the law is contrary to the common good, “whatever that may mean, it must be clearly proved, and I repeat that an Act is deemed to be constitutional until the contrary is clearly established”. The presumption of constitutionality is a running theme among cases concerning CPO legislation. There is no doubt that there is a significant deference to the Oireachtas in matters of policy, which has extended to matters of social justice and the common good”

It may be argued that the threshold that the authority must pass before it can be said to be achieving the “common good” is rather low. The common good could be seen as any benefit to either an identifiable group (such as in a social housing estate) or a non-identifiable group (such as the building of a motorway)”

One of the most significant statements made in the Law reform Commission Report was in relation to the findings In re the Planning and Development Bill 1999, in which the case of James v United Kingdom was mentioned. In this regard the Law Reform Commission Report states: –

“the most noteworthy aspect of the case was the extremely broad view of public interest that was taken, with the Court finding that the compulsory transfer of property from one individual to another “may, depending on the circumstances, constitute a legitimate means for promoting the public interest”. It continued, “neither can it be read into the English expression “in the public interest that the transferred property should be put into use for the general public or that the community generally, or even a substantial proportion of it, should directly benefit from the taking”. This may be considered to be at odds with the general understanding of the term “public” and the need for the law to be clear and not operate entirely in abstraction, especially when fundamental rights suffer from such interference. This conception would dilute the need to prove a pressing necessity on the part of the acquiring authority and resist adequate protection of the rights of the individual. The Court held that any policy calculated to “enhance social justice” may be considered to be in the public interest”

Just to clarity, this case is suggesting that there may already exist a power to take private property off one individual to give it to another, if this is considered in the public interest.

June 2019
On the 26th of June 2019, the second right to housing bill was proposed by means of a private member bill by Thomas Broughan (hereinafter referred to as the “2019 Bill”). This 2019 Bill sought to amend the 1937 Constitution by including the following additional wording: –

“The State recognises the common good as including the right to adequate and appropriate housing and shall guarantee that right through its laws, policies and the prioritisation of resources, with particular regard to children.”

The 2019 Bill lapsed with the dissolution of the Dáil on the 14th of January 2020.

January 2020
In January 2020 a group called “Home For Good” published a report titled “for the common good – the housing crisis and a proposal to amend the irish constitution” (hereinafter referred to as the “Home for Good Report”). Home for Good is a group made up of the Simon Community, Focus Ireland, Respond, Threshold, Forsa Trade Union, the Mercy Law Centre (and other legal and academic experts). The Home for Good Report states: –

“Our Constitution contains an overt protection of the right to private property, while making no mention of a right to housing. In our Constitution, Article 43 protects private property and prevents the State from abolishing the right to private ownership or the right to transfer property. Article 43  recognises that the right to private property must be regulated in the interests of social justice and permits limits on the right in the interests of the common good. A right to housing is not mentioned anywhere nor is there any guidance in the text of the Constitution on how to balance the right to private property with the requirements of the common good. This is not good enough in 21st century Ireland where we have been in the midst of a housing crisis for ten years and more. Many of our neighbouring jurisdictions enshrine a right to housing in their laws or in their Constitutions. Ireland is an outlier amongst well-functioning democracies in not providing legal protection of the right to housing. Inserting a right to housing in our Constitution will eliminate any doubt that property rights can be appropriately restricted to allow access to decent, affordable, and secure housing for all.”

July 2020
On the 28th of July 2020, the third right to housing bill was proposed, again by means of a private member bill, by Richard Boyd Barrett, Paul Murphy, Mick Barry, Brid Smith and Gino Kenny (hereinafter referred to as the “2020 Bill”). The wording proposed in the 2020 Bill is identical to the wording proposed in the 2017 Bill. The 2020 Bill is still live and is currently at Stage 2 in the Dáil. The title of the 2020 Bill is “39^th amendment of the Constitution (Right to Housing) Bill 2020”.

In a Dáil debate on the 28th of July 2020, Richard Boyd Barrett stated the following: –

“It is important to introduce this Bill to amend the Constitution and include the right to housing. Time and again, when we sought measures to protect the rights of tenants, such as preventing unjust economic evictions and taking over property to house people who are desperately in need, we have been told with these and other housing-related matters that we cannot do it because of the provision on the protection of private property in the Constitution. Frankly, I have never accepted that. In the midst of the Covid-19 pandemic, we discovered that things we were told we could not do by the previous Fine Gael Government because they were unconstitutional, such as eviction bans and control of rents to some extent – although not enough – could be done. It suggests some of the legal justifications for not introducing a right to housing or taking measures to ensure housing provision for people in this country and protecting tenants etc. were spurious in the first place.

Nonetheless, it is important that this Bill be introduced when we think of the current efforts by the Government to dismantle the emergency protections for tenants that were introduced at the beginning of the Covid-19 pandemic. Today’s disgraceful move by the new Government to remove those protections for tenants is being justified by the so-called advice from the Attorney General regarding the ban on evictions and rent increases being unconstitutional because of a constitutional protection of private property. I reject that but just to be sure, let us have the referendum. Let us get it clear in the Constitution that people would have a right to housing and that this is under the definition of the common good; this common good of the right to housing should override protection of private property, particularly when we are talking about the private property of landlords, vulture funds and others who seem to think their wealth is more important than the right to secure and dignified housing for ordinary people.”

November 2020
Also, in 2020 a Joint Committee on Housing, Local Government and Heritage was established (hereinafter referred to as the “Joint Committee”). The primary remit of the Joint Committee was to consider bills, estimates and other business referred to it by Dáil Eireann, which relate to the Department of Housing, Local Government and Heritage.

In November 2020, the Joint Committee held a discussion on the proposed referendum on a right to housing. The following are some noteworthy extracts from that discussion: –

“We are here to discuss the proposed referendum on the right to housing. We are joined, in person, by Mr. Wayne Stanley, chair, Home for Good Coalition, and Ms Rebecca Keating, Mercy Law Research Centre….. I shall first ask the representative of the Home for Good Coalition to make an opening statement and members will then be invited to address their questions………. thank the committee for inviting Home for Good to discuss this important topic. I am managing solicitor at Mercy Law Resource Centre, which is one of the founding members of Home for Good, and we chair the legal subgroup of which Ms Hennigan and Professor Whyte are members. I will refer to the existing protections of private property rights in the Constitution and why a referendum specifically on a stand-alone right to housing is needed, in our view, and I will also set out the wording that Home for Good is proposing to progress this important discussion………….. The Constitution currently provides for the protection of private property rights in Article 43 and Article 40.3 but there is no equivalent right to housing protected in the Constitution. This means that the starting point of every legal analysis in respect of the regulation of land begins from the perspective of the property owner’s right. While this right may be restricted in the interests of the common good, the starting point for analysis remains the private interest, with the common good only relevant insofar as it justifies the State in limiting this right to private property. As a result, the Constitution perceives property as a private interest held by a rights holder, though this interest is capable of being restricted by the State in appropriate circumstances in the interest of the common good. A difficulty, however, is that it may not be easy in advance to predict when the common good would justify a restriction on the right to private property. Furthermore, it is a complex task to identify in what circumstances such considerations may justify an interference in private property rights……A more effective and proactive constitutional approach, which we propose, would be to continue the existing protection for private property rights but weigh these against the protection of a right to housing….. Our proposal, therefore, is for a stand-alone right, one that is directly enforceable and that includes a separate statement of the State’s obligation to realise that right within available resources. Home for Good proposes the insertion of a new Article 43A, which states:

Housing Article 43A- The State recognises, and shall vindicate, the right of all persons to have access to adequate housing. The State shall, through legislative and other measures, provide for the realisation of this right within its available resources.”

In relation to what adequate housing means, Home for Good would refer you to the definition contained in the International Covenant on Economic, Social and Cultural Rights, which sets out 7 different characterises which include:

• security of tenure;
• availability of services;
• affordability;
• habitability;
• accessibility;
• location; and
• cultural adequacy.

One might question why the wording proposed by Home for Good differs to the wording proposed in the 2020 Bill, the following comment by Rosemary Hennigan of Focus Ireland may give the answer: –

“There is a benefit to having a slightly more general wording in that our understanding of these things develops over time. If a provision in the Constitution is very specific there is a risk that we are essentially stuck with that wording and an understanding of that wording which is very much rooted in a time and place. The Constitution, we hope, extends over the decades. Consequently, there is much to be said for leaving some scope for developing that language, in particular through legislation where making changes is much easier.”

The views expressed by Rebecca Keating of the Mercy Law Centre (who by the way appear to be given a great deal of credence in this debate) are at odds with the opinion of the Master of High Court, Edmund Honohan, with Mr Honahan stating that: –

“Whilst the Constitution does not contain any positive right to housing, there really is no basis for suggesting that the common good does not include the provision of public housing.”

November 2021
On the 23rd of November 2021 the Government approved the establishment of a Commission on Housing, as part of its Programme for Government and Housing for All Policy. There are currently 12 members on the Housing Commission. One of the roles of the Commission is to establish a subgroup who will be tasked with examining previous proposals for a referendum on a right to housing and thereafter to draft wording for an amendment to the 1937 Constitution on a right to housing, which would later be put to the people.

As of the 18th of March 2022, the Housing Commission has met four times on 12 January 2022, 27 January 2022, 10 February 2022 and 1st of March 2022. It is worth noting that by the second meeting on 27 January 2022, work was already underway to set up a subgroup to examine the issue of a referendum on a right to housing – which in our view is the primary reason for the creation of this group by the Government.

Although the work of the Housing Commission is due to continue until the end of July 2023, it is quite likely that they will have finished their proposed wording for a referendum to amend the 1937 Constitution to include a right to housing for all this year (2022), given that the Minister for Housing has said that he expects a referendum on housing to be held in 2023.

Summary

The following is a summary of the information set out above:

• The compulsory acquisition of land dates back many centuries in Ireland and we have in excess of 70 compulsory acquisition systems in place, with some of the laws governing these systems predating 1922, therefore a genuine question arises as to whether this system should be overhauled and simplified.
• The 1922 Constitution of the Irish Free State contained no general provision on property rights for individuals.
• The 1937 Constitution introduced two separate provisions dealing with property rights for individuals, namely Article 40.3.2 and Article 43. The wording set out in Article 40.3.2 and Article 43 has given rise to a commonly perceived view that property rights are weighted too heavily in favour of the individual and that this has created obstacles for the Oireachtas where it attempts to regulate or control such property rights in the public interest.
• Prior to the enactment of the 1963 Local Government (Planning and Development) Act, planning permission was seldom required to build or demolish buildings.
• Between 1963 and 1971, there was a significant increase in the prices paid for serviced land, that many attribute to the introduction of the 1963 Act which created zoning restrictions and concentrated developments to particular lands.
• In 1973 the Kenny Report was published, this report was commissioned by the Government to consider possible measures for controlling the price of building land in the interests of the common good. The Kenny Report recommended that legislation be introduced to allow local authorities to compulsorily purchase land in specific areas at existing land values plus 25%, the committee felt that such a proposal would not be found to be unconstitutional if legally challenged.
• The 1980’s and 1990’s gave rise to a significant amount of litigation in the area of property rights – the vast majority of which support the position that property rights are far from absolute and that, in some cases, far reaching interferences with such rights can be justified by reference to the common good.
• In 1995 the Government established a Constitutional Review Group to consider areas in the 1937 Constitution where change was desirable or necessary.
• In 1996 the Review Group published its report which spanned over 700 pages. The Review Group confirmed that the caselaw up to 1996 clarified that the courts have not interpreted Article 43 of the 1937 Constitution in an absolutist fashion, meaning that the caselaw confirms that the courts are already weighing the rights of the individual to the private ownership of goods against the principles of social justice and the common good. Regardless of this acknowledgment, the Review Group proceeded to propose that the 1937 Constitution be amended, and that the proposed amendment would give the Oireachtas extensive powers to regulate, control and extinguish the exercise of property rights.
• In 1996 the Government established an All Party Oireachtas Committee on the Constitution to establish areas of the 1937 Constitution where change was necessary or desirable. The All Party Oireachtas Committee published a report spanning 456 pages in 2004 dealing exclusively with Private Property. The report concluded that a significant majority of constitutional challenges in the area of property rights fail and that the caselaw does not bear out the frequent criticism that the property rights provisions unduly protect the right of property or create undue difficulties for the Oireachtas where it attempts to regulate or control such property rights in the public interest.
• In 2012 the Government established a Convention on the Constitution to consider possible changes to the 1937 Constitution and make recommendations, the final topic covered by the committee in 2014 was whether the 1937 Constitution should include enhanced constitutional protection for economic, social and cultural rights (which would include a right to housing). The results from the Convention found that 85% of the members favoured amending the 1937 Constitution in order to strengthen ESC Rights.
• In 2016, the Dáil established a Special Committee on Housing and Homelessness to identify how the obstacles that were impeding progress on housing and homelessness could be surmounted; The report of the committee found that “There was general consensus among legal experts addressing the Committee that there was no particular legal impediment to the extensive use of compulsory purchase orders as a policy instrument in increasing housing supply…”
• There have been three separate private members bills introduced since 2017 to attempt to bring forth a referendum on a right to housing in Ireland. The only bill that remains live is this regard is a Bill proposed in 2020 titled “39^th amendment of the Constitution (Right to Housing) Bill 2020”.
• In 2017 the Law Reform Commission published a report on the Compulsory Acquisition of Land and confirmed that the threshold that an authority must pass before it can be said to be achieving the “common good” is rather low. The report confirmed that the common good could be seen as any benefit to either an identifiable group (such as in a social housing estate) or a non-identifiable group (such as the building of a motorway). This report also confirmed that the term in the public interest is interpreted extremely broadly, in that the compulsory transfer of property from one private individual to another “may, depending on the circumstances, constitute a legitimate means for promoting the public interest”.
• In November 2021, the Government established a Commission on Housing, one of the roles of the Commission being the establishment of a subgroup tasked with examining previous proposal for a referendum on a right to housing, such that they can draft wording for an amendment to the Constitution that can be put to the people in 2023.

Conclusion:

From the caselaw and reports commissioned to date, it is quite clear that the compulsory acquisition of development land to build more houses is not impeded by the current wording in the Constitution.

The question, therefore, is:

in circumstances where the property clauses in the Constitution and the Supreme Courts interpretation of those clauses do not prevent the capping of the price of building land,  limiting compensation or rent, reducing land speculation or land hording and other reforms of the planning and rezoning process – all of which illustrate that the Oireachtas already enjoys a wide discretion in relation to the regulation, control or extinguishment of property rights where such restriction is for common good, what is the real agenda behind the proposed referendum on a right to housing?

Proposed Course of Action

Stage 1: Pre-Bill Stage
This is stage we are currently in. In the view of the ICHR we can disregard the 2020 Bill proposed by Richard Boyd Barret and others as this is a private members bill, meaning the Government can stifle the 2020 Bill in a multitude of ways thereby ensuring that it does not progress.

In light of this fact, there is little point (at this stage) in lobbying TD’s, Senators, or local councillors. In our view, at this stage, members of the public should focus on securing as much information as possible to counter any emotional argument that this referendum is necessary to cure the homeless crisis and in this regard the best argument is that the caselaw informs us that far reaching restriction on property rights can already be justified in the public interest.

Once members of the public are comfortable to argue this position, we believe Stage 1 should be focused on educating family and friends and in this regard we have prepared a summary document with bullet points to assist – this document can be found here.

Stage 2: Bill Publication Stage
We expect that the bill that will be put to the people will be published by the end of this year (2022). This is the point at which the ICHR recommend the commencement of a lobby campaign targeting TD’s, Senators and local councillors.

Stage 3: Referendum Stage
Once the bill has passed both Houses of the Oireachtas the benefit in lobbying evaporates and we revert to an information war. At this stage we need to be able access mainstream media to stand any chance of success and we also need to continue educating family and friends as to the possible implications of a yes vote to this referendum.

Final Comments

We ask you to please be wary of anyone suggesting that a referendum of this nature will only or should only target developers and vulture funds as we see some lawyers are already doing. While many of you may be persuaded by such an approach, we would urge you to exercise extreme caution in accepting or advancing any argument like this.

Whether this referendum passes or not, will be down to an information war, and in this regard the worst possible position to attack this from is the vilification of another, by suggesting that the non-consensual acquisition of property is acceptable provided it is someone else’s property. In our view such proposals will spark the fires of communism and once the developers and vultures have been sufficiently drained, the only target left will be you.  That said, you will now be well informed that there is much caselaw to support the position that developers and vulture funds can actually be targeted through the current laws on compulsory acquisition, so the right question is:

why is this referendum required at all, as opposed to who should be the target of this referendum.

Please accept this piece as a warning that the Government are well on the road to: –

“You will own nothing and you will be happy” – and the only thing standing in their way is us.