Eviction ban: What would a legal challenge need to prove?

Any successful challenge to the constitutionality of the Government’s proposed ban on evictions during the winter would have to show that the measure is disproportionate, according to legal scholars.

While the Constitution protects the right to hold property and to profit from that property, it also contains provisions on social justice and the common good.

In any dispute, the courts will look at whether a restriction on a person’s property rights is not just justified on social justice grounds and the requirements of the common good, but is proportionate in the context of its stated aim.

The Irish Property Owners Association intends to examine the Government’s latest intervention in the private rented market to see if there is scope for mounting a successful legal challenge, according to its chairwoman, Mary Conway. The measure will be “another nail in the coffin” for the sector she represents, she said.

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There has been a change of attitude in Government Buildings on the topic of introducing measures that infringe on people’s property rights, according to one legal expert.

[ Share your story: How will the eviction ban affect you? ]

Measures such as rent freezes and eviction bans introduced in response to the Covid-19 pandemic have influenced thinking on what is possible, according to David Kenny, associate professor of law at Trinity College, Dublin.

“But I think more than anything the difference may be the Attorney General [Paul Gallagher SC]. I think the current Attorney General has a slightly more bullish attitude towards private property restrictions than his predecessors and, in my view, it is the correct approach.”

For any temporary eviction ban to be overturned on the basis that it is unconstitutional, the body or person going to court will have to show it is a disproportionate restriction of their rights.

The courts would examine whether the restriction is as minimal as it could possibly be while still achieving its aim, and whether the public good being achieved is sufficient to justify the harm to the rights of property owners. The time limit on the Government’s proposed ban would be an important issue in any such assessment.

“I wouldn’t be betting on [an objector’s] success,” said Dr Kenny. “But it is a brave person who would predict what the Supreme Court would do.”

One way a new law can be attacked is when it can be shown that it is in some way arbitrary, or singles out one group of persons but not another, he added.

The issue of proportionality can also arise if it is argued that the policy objective for a proposed restriction is not rational, according to Eoin Daly, law lecturer at University College, Galway.

“You can argue that a policy will not achieve its aim, that the means is not rationally connected to the end, and it is by its nature disproportionate. You can’t restrict a right for a bad reason.”

But in the case of a measure aimed at preventing homelessness during the winter, a measure aimed at preventing evictions might be hard to argue against on that basis.

Any such argument would need to show that the policy is irrational or clearly ineffective, he said.

“If you get into a policy debate, the courts may say it is a matter for the Oireachtas, that it is not for the courts to interfere. The Oireachtas will be given the balance of the doubt.”