The news that 8,000 people are homeless in the State points to the need to curtail the protection given to private property in article 43 of the Constitution. Otherwise politicians are powerless to intervene against the market forces that are determining this unacceptable outcome, and are forced to fall back on a mish-mash of disconnected schemes and projects that are manifestly not working.
Minister for Housing Eoghan Murphy’s reported consideration of enhanced compulsory purchase powers or more stringent levies on vacant properties and unused sites requires more than just legislation. To work it needs prior amendment of the Constitution.
If such legislation were introduced it would very likely have to run the gauntlet of constitutional challenge in the Superior Courts, with little guarantee of success.
Under current legislation, compulsory purchase orders (CPO) on any type of property, and for any purpose, are usually hotly contested through the courts and take an interminably long time to conclude. In all cases the resulting compensation is never less than full market value.
In any event, the State does not have available to it the hundreds of millions of euro that would be needed to compensate property owners at full value.
Real solution
A real solution would be one where less than the market value could be awarded in certain circumstances or where the value could be deferred in whole or in part or paid in instalments. However, the Constitution needs to be amended to allow that to happen.
Article 43 confers power on the State to delimit the exercise of private property rights once the limitation is proposed in pursuit of the common good. The challenge for the State lies with the consistently restrictive interpretation the Superior Courts have taken of the measures the State may implement, as well as a narrow view of when the exercise of private property rights is detrimental to the “common good”.
The outcome has been a considerable diminution in the State’s room to manoeuvre in response to the housing and homelessness crisis.
In its existing wording article 43 begins by acknowledging a natural right to the private ownership of external goods that is placed above any human-made law.
It further guarantees that the State will not pass any law abolishing the right to private property or the general right to transfer, bequeath and inherit property.
In section 2, sub-section 1 of the article, the State recognises that property rights must be regulated by the principles of social justice. Under sub-section 2, the State may delimit property rights by law in the interests of the common good.
Every citizen
Instead article 43 could commence with a statement to the effect that “the State acknowledges the right of every citizen and of persons lawfully resident within the State to a home and, accordingly, undertakes to defend and vindicate such right”.
The existing protection for private property rights in article 43, section 1, sub-section 2 could be amended to make its protections “subject to the aforementioned right”. Section 2 would remain unchanged.
This proposal would require a referendum. The necessary wording is straightforward enough, but the politics are more complex because it would represent a significant shift in economic power from property to people.
Have enough of our politicians the will to stop tinkering with solutions and make a real change?
To achieve a referendum date and mobilise a majority of voters in favour of the change would require a degree of co-operation and prioritisation hitherto never seen between Sinn Féin, Labour and left Independents.
Based on its record to date, Fine Gael will implacably oppose the change, and Fianna Fáil as usual will be torn between populism and realpolitik.
Party lines
Could one or both of these parties at least be persuaded to give the people their say on the issue in a referendum while continuing to campaign along party lines for their own policy?
Over the past 30 years the people have voted in referendums on a diversity of topics, many of them far less compelling than the current crisis in housing and homelessness.
We need an all-party consensus, or as near to all-party as is possible, to give the people the opportunity – as a matter of urgency – to pass judgment on the exercise of private property rights in the Celtic Tiger era and the Austerity Era, and to set a new framework for the incipient recovery phase.
Liam Cahill worked as a special adviser to several governments, including with Alan Kelly TD as minister for the environment. He is a bachelor of civil law