TCLR Secondary School Essay Competition Winner: In light of the current housing crisis, should a constitutional right to housing be adopted?

Jack Leahy

8212 people in Ireland are homeless, including 2189 children.[1] It has long surpassed crisis point. We need more affordable accommodation. We need more social housing. Housing is a basic human right.[2] So the question becomes whether enshrining the right to housing will help or hinder progress to solve this crisis. It could force necessary action to tackle the crisis. But its effectiveness could be limited as the courts can not force the government to spend money.[3] However, the government's policies and plans can be within the remit of the courts.[4] As such, the best way to examine the efficacy would be to look at the efficacy of another right the constitution guarantees; the right to free primary education,[5] and how effective it has been and who is left behind. 

Homelessness is a worsening crisis now. The number of homeless people is rising.[6] A constitutional right to housing could force the actions that are necessary to tackle this crisis. It is worth looking at another country that has a constitutional right to housing; Finland.[7] They are also the only country in the EU that has seen its homeless numbers decrease in recent years.[8] Despite having a slightly larger population than Ireland they only have 5500 homeless people, approximately 75% of whom would not even be counted as homeless in Ireland.[9] While other factors certainly contributed to this, it is clear the government has been forced to take more action, something the government here is not forced to do. 

In Finland however, there are ex-ante protections for this right, meaning that the constitutionality of a law is considered before a law is passed.[10] However in Ireland, if such a measure would be introduced, it would likely be limited in its effectiveness, because of the doctrine of non-justiciability. In Ireland there are topics that are non-justiciability, this means that the courts can not rule on them as they are the remit of other branches of government. One of these topics is the spending of public monies.[11] This means that the court's ability to enforce the right will be limited. So if a right to housing could be introduced, the courts could not require the government to spend money. In D. (T.) v. Minister for Education,[12] it was ruled the courts could not force the government to build “special care units”. This would likely imply that the courts would be unable to force the building of affordable housing units or other necessary facilities to ensure the right is upheld. 

However in Friends of the Irish Environment v The Government of Ireland & Ors it was ruled that government policy once enshrined in law is subject to judicial review.[13] As such if a government policy was insufficient, the courts could order the government to rewrite the policy. The government would likely have to set out their housing policy in law. As such the courts could force the government to write a policy that would ensure the right to housing was protected. This would ensure that the housing policy the government introduces would have to protect this right. 

It would however be worth looking at how another similar right guaranteed by the constitution has been enforced; the right to free primary education.[14] Everyone now goes to primary school. While we pay for books, uniforms, and other materials, we do not pay for school itself. We take this for granted. The constitution gives us this right. Housing likely would be very different, but the core principle would be the same but not everyone enjoys the right to free primary education equally. In Sinnott v. Minister for Education, a boy with severe autism was unable to exercise this right due to his disability.[15] The court found there had been violations of his right to free primary education but that it could only step in in the most serious of situations. This same situation could easily be applied to a right to housing. If we extrapolate from this, people with additional needs such as wheelchair access could be disadvantaged as their extra needs might not be accommodated or sufficiently accommodated. This would mean that the most vulnerable could be left to fend for themselves.

The right to housing though would help in the fight to tackle this crisis. But it would not solve it. It would be hamstrung by non-justiciability and other checks. But that is not to say it would not help. The right to housing would ensure that government policy would be subject to judicial review. While the courts might not be able to force the government to spend money, the government does not want to be seen violating the constitution. After McKenna v An Taoiseach, an Tanaiste and ors, the government avoided rigorous referendum campaigning despite the courts having already said it was a non-justiciable issue.[16] Housing is an issue far closer to people's hearts. If ignoring the constitution and the judicial rulings was so politically toxic that the government avoided fully campaigning, then it follows that it would be political suicide to ignore the constitution on such an important issue, even if they could not be forced by the courts to. So while enshrining a right to housing is not a silver bullet that will solve the housing crisis, it will at least help in reducing the crisis. Homelessness is far beyond the crisis point. The time for action was long ago. A constitutional right is not the end of the crisis, but it is the start of the path to an end to the crisis. 

[1] Dominic McGrath, “8,212 people currently homeless in Ireland as figures rise for third month in a row”, (Dublin, September 24, 2021).

[2] Universal Declaration of Human Rights, Article 25.1.

[3] McKenna v An Taoiseach, an Tanaiste and ors [1995] IESC 11.

[4] Friends of the Irish Environment v The Government of Ireland & Ors [2020] IESC 49.

[5] Article 42.4.

[6] Dominic McGrath, “8,212 people currently homeless in Ireland as figures rise for third month in a row”, (Dublin, September 24, 2021).

[7] Constitution of Finland, Article 19.4

[8] Juliette Gash, “How Finland solved its homelessness problem” (RTÉ, 24 Jan 2020).

[9] ibid.

[10] Mercy Law Resource Centre “Second Right To Housing Report: The Right to Housing in Comparative Perspective”.

[11] McKenn(n 3).

[12] [2001] IESC 101.

[13] Friends of the Irish Environment (n 4).

[14] (n 5).

[15] [2001] IESC 63; [2001] 2 IR 505.

[16] Thomas F. O'Higgins, “McKenna judgement was mistaken and was also central to Nice rejection”, The Irish Times Nov 19, 2001.

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