Open letter to Alan Kelly - 'Don't blame the housing crisis on the Constitution'
Published 03/04/2016 | 02:30
In an open letter to Alan Kelly, the environment minister, the Master of the High Court Edmund Honohan says the Constitution cannot be used as cover for political inaction on the housing crisis
Dear Minister Kelly,
It is appropriate that you have, in this centenary year, called for a debate about property rights in the Constitution. Faced with repeated assertions about how the right to property is legally watertight, politicians need to recover control which they have ceded to the lawyers. To do so they need to understand that the position is a lot clearer than they have been led to believe.
Echoes of 1916: The Constitution in effect provides that the State may expropriate private property if the Oireachtas decides that to do so is for the "common good". Road widening is a good example.
Option A. At the moment there are long waiting lists for housing and the private rental market is unable to provide dwellings at affordable rents.
Consequently, if the Oireachtas is of the view that the State should itself (or its local authorities) provide public housing "in the Common Good", the State can (and probably, legally, should) decide not to wait the two/three years needed to build social housing but instead to immediately acquire houses now in private hands.
If the owners of these refuse to sell, acquisition can be by compulsory purchase with full compensation assessed by the arbitrator.
It so happens that there is a stock of such housing which has recently been bought by "vulture" property investment funds from Anglo, Irish Nationwide, Nama etc. at knockdown prices. "Compensation" for these funds would be that they would be repaid the price they paid for the housing portfolios. That is the extent of their Constitutional entitlement.
Option B. On the other hand, the Oireachtas might be concerned to enhance tenants' rights at the expense of the landlords. Rent controls and the like are also a form of expropriation if their effect is to rewrite contracts already operational. And the "common good" rationale for such interference with contracts is not as clearly unarguable as with Option A.
Option A wins hands down and the timing is right.
Cue now the lawyers' alternative analysis: that the Constitution enshrines marketplace rules; that the Supreme Court will determine what is the Common Good. Publish the Attorney General's advice to the Government and have a fully informed debate.
But given that the Supreme Court has already decided, in 2000, that the provision of affordable housing is an objective which is "socially just and required by the common good", what we do about it now is a political decision, not a legal one.
The Constitution cannot be used as cover for political inaction.