Tuesday 18 June 2019

Colette Browne: 'Changing our laws over housing could at least offer the homeless some hope in a time of misery'

'Clearly, Government policy is not working. Radical new ideas, and new solutions, are required if we truly want to tackle this problem.' (stock photo)
'Clearly, Government policy is not working. Radical new ideas, and new solutions, are required if we truly want to tackle this problem.' (stock photo)
Colette Browne

Colette Browne

It's the season of goodwill - but sometimes, goodwill isn't enough. Sometimes, people need more than charity and kindness. They need change.

Today, as most of us relax at home with our families, thousands of people are sitting in small, cramped rooms wondering where they will sleep tomorrow, whether there will be room at the inns in which they are currently staying.

For them, there are no decorations, no Christmas tree, no festive cheer and no break from the stress and the worry.

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In December 2017, there were 8,857 people, including 3,079 children, living in emergency accommodation. This year, that number has swelled to 9,968, including 3,811 children. That's another 732 homeless children in just 12 months - two children becoming homeless every day.

Those figures would be much worse - 11,574 people, including 4,792 children - if the Department of Housing hadn't insisted on "recategorising" more than 1,600 people, who had been counted among the homeless statistics until this year. They were summarily removed from the figures because the department insists they have "own-door" accommodation. But that accommodation is temporary and, in most cases, paid for with funding for homeless services.

Despite the crude cull of these people, more than half of them children, from the official figures, the overall number increased anyway. Despite the Government's best efforts, this is a problem that cannot be massaged or airbrushed away.

Even those increased numbers are an underestimate of this crisis. They don't include rough sleepers - 156 in Dublin alone at the last count. They don't include couch surfers, sleeping in friends' houses as they have nowhere else to go. They don't include the many thousands who can't afford to move out of their parents' homes and are trapped in their childhood bedrooms. Clearly, Government policy is not working. Radical new ideas, and new solutions, are required if we truly want to tackle this problem.

But the Government refuses to countenance anything that isn't already part of its existing homeless strategy - a strategy that is, demonstrably, failing. Even those ideas that are not very radical, and not particularly new, are deemed too controversial for this conservative Government.

As far back as 2014, the Convention on the Constitution, the precursor to the Citizens' Assembly, endorsed the notion of including a right to housing in the Constitution, with 85pc voting in favour of its insertion.

Why? Predominantly because there are already two separate articles in the Constitution, Article 40.3.2 and Article 43, which protect the right to private property, but nothing that explicitly confers a right to housing. Given the disproportionate weight afforded to the right to private property in the Constitution, it was considered that there should also be a provision that enabled courts to balance that right against the right to a home.

Despite the overwhelming support for this amendment to the Constitution from the members of the convention, nothing has happened to advance it in the intervening four years. This is largely because discussions of a constitutional right to housing are invariably infused with a lethal combination of ignorance and misinformation, with some of our more hysterical commentators, and politicians, suggesting it would inexorably lead to some kind of communist land-grab.

The rather more prosaic truth is that including a right to housing in the Constitution would not mean a new home for everyone in the country. It would simply require the State to reasonably protect that right in its policies and practices.

In countries that do have a constitutional right to housing, the practical impact is not the State seizing private property en masse. Rather, governments are simply required to adopt reasonable measures to try to vindicate that right within available resources - and courts are empowered to examine whether these reasonable steps have been taken.

Some would say we don't need to include this express right, as Article 43 of the Constitution already states that the right to private property is not absolute and can be regulated and restricted if the common good requires it.

However, the problem is that the State has been extremely reticent to test its limits in courts, preferring instead to take a cautious approach. It presumes that, in any battle between these conflicting rights, the right to private property trumps the right of the State to interfere with that right. So, when opposition TDs propose legislation in which a more decisive intervention in the market is mooted, the Government routinely shoots it down as being unconstitutional. Yet, at the same time, it refuses to do anything that would bolster the right to housing in either legislation or the Constitution.

Last year, a report from the Law Reform Commission (LRC) into the existing law relating to the compulsory purchase of land (CPO) suggested that when the State does opt to use the CPO process, it is successful. A review by the LRC of a list of CPOs submitted by local authorities in 2017, 69 in total, found that of the 58 that had been decided by An Bord Pleanála, 54 had been approved and four had been withdrawn by councils before a decision was issued. Therefore, of all of the CPOs that were considered by An Bord Pleanála, 100pc were approved.

While this success rate is encouraging, less so is the fact that, in the middle of a housing crisis, just 69 CPOs were submitted by local authorities for the entire year. Given the huge number of vacant and abandoned houses that can be found in cities and towns all over the country, why is this process not used more frequently by local authorities to increase their supply of housing? Is it the case that local authorities will use the CPO process only if it is perceived to be a slam dunk? Or are different local authorities receiving conflicting legal advice about the usefulness of the process?

While the State dithers about using its existing powers to ameliorate the housing crisis, a clear constitutional provision enshrining the right to housing would at least provide the benefit of relative clarity.

According to the Mercy Law Centre, the "gap in the law is clear" as "fundamental failures to provide emergency accommodation to a family with young children cannot be challenged by reference to a clear and direct right".

The Government may be loath to allow courts to adjudicate on whether its policies adequately protect the right to housing, but it has had carte blanche to address this crisis for years, with no improvement - so some oversight is required. Patently, a constitutional right to housing would not amount to a panacea that solves the housing crisis, but it would at least provide those suffering homelessness some additional power and protection. Unless we want to see hundreds more families homeless and celebrating Christmas in hotel rooms next year, it's time to take some action.

Irish Independent

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