Eoin Ó Broin: A constitutional right to housing could restore faith in our political system

In February 2014 the Constitutional Convention considered whether to enshrine social, economic and cultural rights into Bunreacht na hÉireann.

One of the key moments in the Convention’s deliberations was a debate between senior counsel and former attorney general and minister for justice Michael McDowell and Dr Mary Murphy, a member of the Irish Human Rights and Equality Commission and former Dublin City Councillor.

In a contribution that was decisive for many, Murphy countered McDowell’s claims that a constitutional right to housing would “devalue politics” and lead to an increase in litigation against the State.

[ Housing Commission split over proposals for constitutional referendum on right to housing ]

She told the convention that “enumerated [written] rights, democratically determined, limit judicial activism and clearly demarcate government’s policy role”.

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Her conclusion was: “Justiciable economic and social rights offer opportunity to restore faith and trust in political institutions.”

Having considered all of the arguments laid before them, 84 per cent of the 100 convention members voted in favour of placing the right to housing into the Constitution.

A decade on and Government continues to disregard the decisive recommendation of the convention.

Meanwhile, the housing crisis deepens with every passing day. House prices and rents continue to rise. Social and affordable housing delivery is glacial. And homelessness has reached levels never thought imaginable.

When it comes to housing there has never been a more opportune time to try and “restore faith and trust in our political institutions”.

The case for holding a referendum to enshrine the right to secure, appropriate and affordable housing in the Constitution is more compelling than ever.

But what would such a right actually achieve? Contrary to some commentary it would not create an entitlement to a free home for every citizen.

As the Mercy Law Centre has outlined in several reports and in testimony to the Oireachtas housing committee in 2016, a right to housing would “put in place a basic floor of protection” and “require the State, in its decisions and policies, to reasonably protect that right”.

In our most recent consideration of the issue, the Oireachtas housing committee heard from a range of experts in June 2022.

The most compelling testimony came Colm Ó’Cinneide, professor of constitutional law and human rights at University College London. His contribution was important not only because of his legal expertise but also because at an earlier point in his career, he was a self-described sceptic but over time has become a convert to the idea of a right to housing.

He told the committee that placing the right to housing in the Constitution would have two impacts. Politically it would act as an impetus for change, creating an expectation that could be a driver for policy action. Legally it would allow the courts to take the right into account where the State failed, manifestly, to vindicate the right.

Ó’Cinneide told the committee that “a right to housing can have catalytic effects” and that “its primary effect may actually be in the sphere of politics, administration and policy”, concluding that this “would be a good thing”.

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The Oireachtas has debated this issue at great length since 2016. Several Private Members’ referendum Bills from Sinn Féin and others have been defeated by Fianna Fáil and Fine Gael.

The Housing committee has heard regularly from Irish and international advocates and experts on the issue.

The current programme for Government includes an ambiguous commitment to hold a referendum on housing. Minister for Housing Darragh O’Brien asked the Housing Commission, established in 2022, to consider the matter and make a recommendation to Government.

[ Michael McDowell: Right-to-housing referendum would not lay a single brick ]

The commission has done that and by a significant majority voted to recommend not only the holding of a referendum but a specific wording for the amendment. It is expected that the final report from the commission will be delivered to Government in September.

While a majority of TDs in the last Dáil did not support the holding of a referendum on the right to housing, that has now changed. All parties bar Fine Gael are now on record saying they want a right to housing in the Constitution.

[ Housing Commission’s effective work on policy stymied by tortured exchanges on referendum ]

There is a concern, however, that disagreement on this issue between Fine Gael and Fianna Fáil may lead to a fudge on the commission’s report. To avoid a public row between the main Coalition partners the report may be referred to the Oireachtas housing committee for further consideration.

This would be a terrible waste of time. Our committee has considered this matter and a majority of its members are on record as supporting a referendum.

The commission was asked to do a job. It has done that. When the Government receives the final report it must publish this and consult with political parties and civil society on the proposed wording. Then the Oireachtas should be allowed to debate and approve the necessary legislation before the end of 2023.

There is no reason why a referendum on the issue should not take place in early 2024.

It is high time for people to be allowed to decide whether they want the status quo in housing to continue or whether they want to enshrine the right to secure, appropriate and affordable housing in the foundational law of our State.

A constitutional right to housing will not, in and of itself, fix our broken housing system. It would, however, place a firm legal obligation on the current and all future governments to realise that right through its laws, policies and budgets.

That is a worthy outcome by any standard.

• Eoin Ó Broin TD is Sinn Féin spokesman on housing