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Kelly blames the constitution for failing to do more on the homeless & housing crisis

Minister for the Environment, Community and Local Government between July 2014 and May 2016

As the new Government settles in and roll outs its Programme it is worth reflecting on comments made by the former Minister of Environment, Community and Local Government Alan Kelly T.D. at the Forum on Housing & Homelessness held in Dublin’s Custom House at the end of March.


Kelly, in one of his last Ministerial engagements, spoke about the challenge in addressing homelessness and emphasized the shared responsibility that all stakeholders had in coming up with solutions.


The Minister used the occasion to make what he called “three key points”.


His first point was that “the entire housing sector is a spectrum, and that the problems in relation to homelessness are deeply and intimately connected with the problems in the wider housing market…….the increase in homelessness is a visible and terrible symptom of the problem, but the causes of the problems in housing are far deeper, and far more widespread. It is not just about Government resources”.


The second point he made was linked to the first. He claimed is that there is “no silver bullet and there is no magic wand that will solve this problem instantly. I truly wish there were. In fact, I want to go further than that, by saying that the solutions to this problem are not all to be found within my Department”.


Kelly’s final point made at the Forum was one that should cause both concern and conversely opportunity. He claimed that “in many instances when trying to tackle this problem, I was not hampered by political or financial obstacles. I was blocked by the Constitution”. He continued, stating that “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.”


There are a couple of pertinent observations to be made here and unfortunately the Minister did not expand on this alleged ‘blocking’. But it would be helpful to know where did the resistance come from - was it political colleagues, civil servants or advice from the Attorney General office. This is vital to establish as the supposed inviolability of Article 43 of the Irish Constitution and property rights has been repeatedly questioned by eminent legal constitutional experts in Ireland and the EU since the 1974 Kenny Report, which called for reform on the price of building land and land speculation.


Article 43 in full reads;


43.1: 1. 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. 2. 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.


Art. 43.2: 1. 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.                    


2.  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.


Since 1974 successive governments have claimed their hands are tied by the constitution over property rights and a couple of court cases, most notably in 1982 (Blake vs. Attorney General) when the Supreme Court deemed the Rent Restrictions Act of 1960 unconstitutional, have been repeatedly used to support this belief. The Courts reasoning in 1982 was little to do with Article 43 and more as the Court believed the Act restricted the rights of one group of citizens for the benefit of another group and did so with having regard to the financial capacity of either group or their right to compensations.


However there are numerous and regular occasions where the State has and will continue to intervene on property rights “for the common good”. Compulsory purchase orders, legislation and restrictions on land usage, inheritance taxes, laws on security of tenure, the legislation authorizing and empowering the Criminal Assets Bureau and the power to freeze bank accounts. All of these common, sensible and agreed upon powers conferred on the State and its organs by its citizens.


In light of the full range of decisions handed down Irish constitutional law expert James Casey has written that the Supreme Courts view is that “legislation will not constitute an unjust attack on property rights if passed to reconcile the exercise of those rights with the requirement of the common good, and if consonant with principles of social justice.”


Only last month The Master of the High Court, Edmund Honohan Senior Counsel, appeared before the Oireachtas Committee on Housing and Homelessness.


His remarks are worth reading in full, but a couple of key statements are important to note.


Mr Honohan emphasized that it is the primary responsibility of the Oireachtas, not the Judiciary, to introduce legislation where that legislation, and its intent, is clear.  He stated that “the notion that the courts are free to veto or shape new law to conform to the personal inclinations of the bench has gained currency in the mind of the public because of the Oireachtas’ tendency to enact laws which devolve to the courts various decision-making powers to be exercised at the court’s discretion”. He went on to inform the committee that “the Supreme 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.”


In his presentation he pointed out that the state had a long history of intervening in the area of the provision of quality affordable housing. He highlighted the slum clearances, the building of 200,000 homes by local authorities from 1880 to 1960, the tax incentives of the 60’s, 70 and 80’s to stimulate building and the more recent Part V for Affordable and Social Housing. On this basis Honohan said to the committee that it should be “obvious that the Oireachtas has, for good or ill, at all times treated housing policy as an area for legislative action, in so doing confirming it’s view, whether expressly or not, that such action is for the common good.”

He pointed out the Supreme Court, ruling on the Part V Affordable and Social Housing in the 1999 Planning and Development Bill, stated

“… the objectives sought to be achieved by Part V of the Bill are clear: to enable people of relatively moderate means or suffering from some form of social or economic handicap to buy their own homes in an economic climate where housing costs and average incomes make that difficult … It can scarcely be disputed that it was within the competence of the Oireachtas to decide that the achievement of these objectives would be socially just and required by the common good.”


In summary the Master of the High Court was clear in his view that “there really is no basis for suggesting that the common good does not include the provision of public housing. The Article 43.2.2 exception is clearly in play. Accordingly, it may be read as an enabling provision allowing regulation of property rights to “reconcile their exercise with public housing requirements.”

It seems that the legislators in the Dail are not listening to the Judiciary in their increasingly clear guidance been given on this matter. There are powerful vested interests that will oppose any legislation that attempts to resolve the housing crisis. It’s up to a Minister to ignore those ‘blocking’ him and let those interests the right to take their challenge to the Supreme Court for judgement. Is blaming the Constitution therefor an excuse for inaction?



Minister Alan Kelly full speech at the Forum on Housing & Homelessness, March 2016

Edmund Honohan S.C. full statement to the Housing and Homeless Oireachtas Committee, May 2016


(Contributed by PHE staff writers. Uploaded 13.06.16)

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