An Oireachtas committee has made a welcome case for reconceptualising the right to private property, but unfortunately dodged the issue of the right to shelter, writes Padraic Kenna
There is no need for a constitutional amendment to facilitate further State controls on land use in Ireland. Many avenues are open to counter the impact of land prices on the cost of new homes. This was the widely reported radical conclusion of the All-Party Oireachtas Committee on the Constitution on private property, published but little commented upon last April.
Its report was outstanding and modernising in many ways, particularly in the way it addressed the dynamics of the Irish housing market and the need to reconceptualise land in Ireland. The report distinguished between traditional concepts of land rooted in an agricultural economy, and contemporary concepts of land as a marketable commodity and factor of housing production.
The conceptual shift, as it was described, to a "different mind-set", recognises that different legal treatment is required between property as people use it and property, or land, as capital. Development land as a factor in the production of housing, which increases dramatically in value when planning permission is granted, occupies a completely different role in society to agricultural land.
This report has shifted the debate in Ireland from a natural law approach to land and property to one based on utilitarian and positive laws in respect of property rights.
Ownership of development land and ownership of vegetable gardens are not the same.
The committee avoided the issue of the impact of Foreign Direct Investment on Dublin land markets, but outlined new proposals for properly functioning land markets in Ireland.
A simplified and more efficient land registration system, with transaction prices being made public, was recommended. And one significant proposal was that a developer's options to purchase land should be publicly recorded to achieve transparency in property markets.
While the primary focus of the committee was to examine the personal and property rights aspects of the Constitution, the Taoiseach had requested that it also consider the need for updating provisions relating to planning controls and infrastructure development.
The committee also invited submissions in relation to a number of other areas, including the right to shelter. Some 19 submissions addressed the issue, ranging from the Chartered Institute of Building to the Irish Traveller Movement/Pavee Point.
But the issue was kicked into touch by the bizarre statement that the committee did not propose to consider socio-economic rights in this report. Yet the report was, after all, about a fundamental socio-economic right, the right to property.
The submissions were, however, reproduced in the Appendix, which is historically very valuable in elucidating the concepts involved. What emerged was that the right to shelter is but one element of widely established rights to housing. While many aspects of these rights to housing, such as ownership, affordability, standards and exchange rights are legally protected and regulated by the State, the issue of a right to shelter seems to rattle some powerful cages.
Prof Gerry Whyte has pointed out that the case for housing rights is based on the intrinsic worth of each individual, and the need for the State to assist some people to achieve their full potential in society.
It is questionable whether democratic politics, as practised in Ireland and dominated by sectional interests, can achieve socially inclusive outcomes in this area.
Significantly, only the Green Party, Labour Party and Sinn Féin made any published written submission to this all-party Oireachtas committee.
Many of the submissions from charitable and housing organisations highlighted the international human rights instruments containing rights to housing. Some, however, demonstrated a paternalistic approach to granting housing rights to homeless people and citizens.
In parallel with the changing concepts relating to private property, there is a noticeable shift in the approaches of advocates for shelter.
This is symbolised by a movement away from the natural law approach which viewed each person as being made in the image of God and thus imbued with human dignity, and having a natural right to certain resources which ought to be provided by society.
More holistic and concrete rights to housing some distance from the minimalist natural law right to shelter are being proposed. Yet rights-based approaches are often denounced by our new utilitarian politicians as naïve and moralising, and out of touch with the "sophisticated" approaches of our modern Irish State.
While many belittle these proposed rights as a mere aspirational expression of natural law principles, they are in fact part of the law in many European states.
The advocates of rights to housing are not merely promoting abstract and ancient ethical philosophies.
Almost all submissions proposed clear legal measures, where the Irish State could guarantee rights to housing, both market and welfare, from a rights perspective.
Indeed, some showed with detailed evidence how existing Irish housing policy could be reconceptualised from a rights perspective.
Countries similar in size, economy and history to Ireland, such as Scotland and Finland, have managed to grant their citizens enforceable rights to essential services such as free childcare services, housing and education up to, and including, third-level, while maintaining democratic societies, competitive economies and increasing international capital investment.
Against the creation of new enforceable soci-economic rights are regularly peddled fears that such rights will give judges control over an area where political elites and Ministers insist on exercising discretion in the allocation of scarce resources.
Yet it is promising to see that there are many who still believe that Irish society can be improved by giving people an enforceable call on the vast resources of the country through legal principles and rights, openly articulated, available to all and established in law.