The Housing Crisis and the Constitution

Ireland has been in the grip of a housing crisis for several years. Lately, there have been mounting calls for a referendum to introduce a right to housing in the Constitution. Regardless of the merits of this proposal, it stems, in part, from a perception that the Constitution in its current form inhibits the Oireachtas from taking radical steps to remedy the housing crisis. We argue instead that legal interpretations of constitutional case law have over-estimated the degree to which the courts will protect individual property rights at the expense of the common good. In Part I, we outline the case law relating to the protection of property rights in the Constitution, and identify a number of key principles. We conclude from an examination of Irish case law that the courts have, largely, deferred to the Oireachtas in restricting individual property rights in favor of the common good, provided any measures are designed to achieve a clear social objective, are not based on arbitrary or discriminatory considerations, and respect fair procedures. In addition, we note that the courts have been particularly deferential to Oireachtas in taking steps to secure the common good in times of crisis. In Part II, we examine some of the Bills proposed in the Oireachtas over the last several years to address Ireland’s housing crisis and assess, in light of case law, the likelihood that they might have been found constitutional. Despite the wide deference shown by the courts to the Oireachtas in limiting property rights in favor of the public interest, we note that in response to these Bills, the Government has often declared itself to be acting on the basis of legal advice to the effect that radical housing reform would necessarily prejudice the individual property rights of landlords. This has meant that, in reality, the wide provision for legislating for the pressing needs of the public has been diminished in favor of prioritizing individual property rights. This does not correlate with the attitude espoused by the courts. We argue that there is little to suggest that the courts would view constitutional property rights as posing a barrier to radical housing reform, should appropriate safeguards be included. In Part III, we conclude that successive Governments have continued to rely on a narrow understanding of property rights case law to justify a constrained role for the State in the housing market. While this is a perfectly valid political preference, we suggest that it is not a constitutional principle.