THE Constitution should provide for the protection of property rights in a new Article of the Constitution relating to property, according to the review group. In a majority decision, it takes the view it is necessary and desirable to protect against the risk of "arbitrary or disproportionate deprivation or interference" by the State.
The new Article, which would replace the existing property provisions of Articles 43 and remove the words "and property rights" from Article 40.3.2, should include a statement that every natural person is entitled to the peaceable enjoyment of his or her own property and possessions, the review group says.
A majority of the group also recommends that this should be accompanied by a clause which would allow the Oireachtas to qualify the exercise of property rights in the public interest or "for reasons of social justice". These restrictions may relate to the raising of taxation, proper land use and planning controls and the protection of objects of architectural and historic importance and the environment.
The new Article should also contain a guarantee that the State will not pass any law attempting to abolish the general right to private ownership or the general right to transfer, bequeath or inherit property.
But, once again in a majority decision, the review group opposes the affording of constitutional protection of property to legal persons, such as limited companies. Among other reasons, it says if such constitutional rights were extended to legal persons, corporate resources and financial power could be used to challenge the constitutionality of legislation, with "unwelcome legal, financial and social consequences"
The group does not recommend that Articles 40.3.2 and 43 should be replaced by the provisions of Article 1 of the First Protocol to the European Convention on Human Rights, referring to difficulties in the wording.