Government “using Constitution as excuse” to block housing reform – Sen. Colette Kelleher

Over the past three years, the Government has repeatedly cited concerns about constitutional property rights in blocking legislation on housing reforms.  That’s according to a research report, published by independent Senator, Colette Kelleher, today (03.09.19), which lists at least 12 examples of legislation blocked in this manner.

The research was commissioned by Senator Kelleher – who is a member of the Joint Oireachtas Committee on Housing, Planning and Local Government – to examine how the Constitutional right to property is contributing to the housing crisis.  It was conducted by the Oireachtas Library & Research Service, and sets out recent instances in which property rights under the Constitution have been invoked in Oireachtas debates on housing legislation.  Such invocations are typically made by the Government, opposing a Private Members’ Bill.

Commenting on the research findings, Senator Kelleher said: “This research shows definitively that the Government is using the Constitution as an excuse to avoid taking radical action to address the housing crisis.  In the past three years alone, at least 12 Bills intended to alleviate the crisis were blocked by the Government, citing constitutional concerns.

“If the Constitution is really such a major impediment to housing reform, it needs to be changed.  The private property rights enshrined in Articles 40.3 and 43 are currently being interpreted by the Attorney General – and, thus, by Government – in an extremely restrictive way.  Until this is addressed, there is little scope for us to introduce the type of far-reaching, bold and radical measures that are needed to properly address the housing crisis.”


Research Findings

The vast majority of Bills detailed in the research report are from 2016 onwards, reflecting the onset of the current housing crisis.  Those analysed include:

  • No Consent, No Sale Bill 2019.  Introduced by Pearse Doherty TD in January 2019, this Bill aimed to prevent the sale of a mortgage onward by a bank or credit institution without the consent of the borrower.  The Government objected strongly to the Bill on the basis of potential harm to the financial sector and constitutional concerns.
  • Residential Tenancies (Prevention of Family Homelessness) Bill 2018.  Introduced by Eoin O’Broin TD in October 2018, this Bill proposed to prevent landlords from evicting tenants on the basis that they intended to sell their property – where the landlord or developer had availed of tax-breaks in purchasing the property in the first instance.  Speaking in the Dáil, Deputy O’Broin stated he had been informed that the Government intended to oppose the Bill on the basis that the Attorney General had advised it was unconstitutional.  The Bill was defeated at Second Stage.
  • Residential Tenancies (Greater Security of Tenure and Rent Certainty) Bill 2018.  Introduced by the Labour Party in May 2018, this Bill proposed to extend rent pressure zones to the entire country, and to remove an intention to sell the property as grounds to terminate a tenancy.  The Housing Minister, Eoghan Murphy TD, criticised the Bill, citing legal advice to the effect that the proposed legislation was unconstitutional.
  • Mortgage Arrears Resolution (Family Home) Bill 2017.  This Bill was introduced by Fianna Fáil in July 2017 with the aim of creating an independent mortgage arrears tribunal with powers to make binding orders against banks and lending institutions, requiring them to restructure a mortgage in particular ways.  The Justice Minister, Charlie Flanagan TD, argued the Bill was unconstitutional, in part because of the property rights protections in Articles 40.3 and 43.
  • Residential Tenancies (Housing Emergency Measures in the Public Interest) (Amendment) Bill 2016.  This was introduced in May 2017 by Richard Boyd Barrett TD, and proposed to give the Housing Minister power to declare a housing emergency and to direct that rents be lowered in a particular area.  The Government refused to support the Bill, citing constitutional concerns.

“Under the Constitution, the right to private property is firmly established in the legal foundations of the State,” said Senator Kelleher.  “But the Constitution also states that this right should be regulated by the principles of social justice and should be reconciled with the needs of the common good.  At present, this reconciliation is not happening.

“The current constitutional protections are being interpreted in restrictive and ambiguous ways.  They are obstructive, and are contributing to the housing crisis.  Housing is the single biggest domestic issue of our time, and we need radical and bold measures to address it.  This research points to a need to amend our Constitution, amongst other measures.”


Role of the Attorney General

Senator Kelleher said the research also points to the need for greater clarity on the role of the Attorney General.

“A number of the Bills discussed in this report were opposed by the Government, in whole or in part, on the basis of advice from the Attorney General,” she said.  “The Attorney General has an extremely wide remit and extensive influence on the development of legislation, but it has been observed by many commentators that their work in providing such advice is ‘shrouded in secrecy’.

“The advice given to the Government by the Attorney General is almost never published, although the Government often alludes to it in opposing Bills, as we have seen in this research.  The reluctance to publish the Attorney General’s advice makes it very difficult for opposing voices to probe and challenge its quality or accuracy.  It also makes it difficult to gauge just how truly independent the role of Attorney General is.

“The latest figures show we have 10,000 people experiencing homelessness, including almost 4,000 children.  We need to start a conversation – urgently – about whether our Constitution is fit for purpose to allow for the radical measures we need to end the housing crisis.”