Evictions into homelessness could be unconstitutional

The Government is pressing ahead with plans to allow the legislative ban on evictions to expire. Many tenants, faced with few other options, will pursue legal challenges of their evictions. There are important constitutional considerations that have a bearing on any such challenges.

For many years the response by successive governments to legal moves aimed at easing the housing crisis was that such legislation would mark an unconstitutional interference with the property rights of landlords. Constitutional scholars are generally agreed that this represents a misreading of the constitutional protection of property and of the relevant key cases. Notably, the Government seems to be avoiding such talk of constitutional restraint this time around. Instead it has relied on the claim that extending the eviction ban would drive landlords from the housing market.

In its most recent treatment of article 40.5, the Supreme Court refused to grant an injunction that would have forced a Traveller family to vacate a site in Clare that it was occupying illegally

Not only, however, does the Constitution not prevent the Government from introducing legislation protecting tenants from eviction; it may also offer protection to tenants wishing to challenge the lawfulness of their eviction even in the absence of legislative protection.

Where a landlord secures a notice of termination of a tenancy, a tenant who remains in a property is “overholding”. The landlord can make a complaint to the Residential Tenancies Board (RTB). Tenants can in turn appeal decisions that go against them internally to the Tenancy Tribunal. Either party can appeal tribunal decisions to the High Court on a point of law. Landlords can also seek an injunction from the District Court requiring tenants to vacate the property. Tenants can seek judicial review of a decision either of the RTB or the District Court, though the costs involved means that this will be relatively rare.

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An important question is whether the constitutional rights of tenants are affected by eviction. If they are, then the courts will be more willing to quash decisions that affect those rights. In general, any interference with constitutional rights must be shown to satisfy a proportionality test. This means that any interference with the right must be proportionate to some legitimate aim pursued by the State. This standard demands greater justification from the State than the standard applied in cases where constitutional rights are not at issue.

The Constitution protects several rights that are affected by evictions: privacy, the position of the family, the rights of children, and the protection of the person, to name a few. Perhaps most relevant is the protection of the inviolability of the dwelling in article 40.5. The courts have noted that this constitutional norm “complements and reinforces” the other rights just mentioned. While the right remains comparatively underdeveloped in the courts’ jurisprudence, there is reason to think that this provision would demand a high level of justification from the State before the courts would order evictions in the present circumstances.

This right, originally thought to function only in the criminal law context, was developed in several High Court judgments of Gerard Hogan, now a member of the Supreme Court. In one he found that article 40.5 protected a woman from harassment by debt collectors. In another, even more relevant to the present context, he suggested that an order for possession of a dwelling after the occupant had fallen into arrears on their mortgage repayments could only follow after a court had conducted a proportionality analysis. The courts have held, then, that article 40.5 is implicated where a person’s peaceful enjoyment of their home is interfered with, even where that person fails to meet the financial obligations that come with occupation of their home.

In its most recent treatment of article 40.5, the Supreme Court refused to grant an injunction that would have forced a Traveller family to vacate a site in Clare that it was occupying illegally. It was emphasised that the seriousness of the consequences faced by the family if forced to leave had a bearing on the protection afforded to them by the article. The more serious the impact on one’s constitutional right, the more difficult it is to argue that interference with that right is proportionate. In the case of tenants, figures suggest that up to half of local authorities in the country have no emergency accommodation available. Many of those evicted, including families with children, face homelessness.

The Taoiseach’s recent statement that judges would be “very reluctant” to enforce evictions is galling: it betrays a disregard for the personal, emotional and financial stresses involved in accessing the legal system

Moreover, part of the reason for refusing to grant the injunction against the McDonaghs was that Clare County Council had failed to secure Traveller-specific accommodation for the family. Similarly, tenants facing eviction face the consequences they do because of the failures of the State, in particular the failure to make emergency accommodation available.

Whether the courts would uphold challenges to evictions will depend on the specific circumstances of each case. But it seems clear that the constitutional rights of those facing eviction are affected. As such, the courts should be willing to subject decisions to force families from their homes to the appropriate level of scrutiny.

The uncertainty of all of this, of course, is precisely what makes it undesirable as a strategy for tenants. Legal challenges take time, can cost exorbitant sums, and exact an emotional cost on those involved. This is why the Taoiseach’s recent statement that judges would be “very reluctant” to enforce evictions is galling: it betrays a disregard for the personal, emotional and financial stresses involved in accessing the legal system. Nevertheless, where such legal avenues are pursued, the Constitution has an important role to play.

Dr Conor Crummey is assistant professor at Maynooth University School of Law and Criminology