Joint Committee on Housing, Local Government and Heritage díospóireacht -
Tuesday, 22 Oct 2024

I welcome everybody to the Joint Committee on Housing, Local Government and Heritage. Today, the committee meets to commence our discussion on the constitutional amendment on the right to housing. This was referred to us by the Minister, who asked the committee to carry out some scrutiny of the proposed wording for the constitutional amendment. I welcome the witnesses. In the room, from Home for Good, we are joined by Mr. Adam Boyle from the Mercy Law Resource Centre and Ms Cat Clark from Threshold. We are joined remotely by Mr. Wayne Stanley from the Simon Communities of Ireland and Dr. Conor Casey from the University of Surrey. They are very welcome. We are also joined remotely by the former members of the Housing Commission, Dr. Ronan Lyons from Trinity College Dublin and Mr. Michael O'Flynn from the O'Flynn Group. I welcome the witnesses and thank them for taking time out of their busy schedules to assist us.

I remind members of the constitutional requirement that members must be physically present within the confines of the place where the Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. Those witnesses attending in the committee room are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Members and witnesses are expected not to abuse the privilege they enjoy. It is my duty as Chair to ensure that this privilege is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. For our witnesses who are attending remotely, there are some limitations to parliamentary privilege and, as such, they may not benefit from the same level of immunity from legal proceedings as a person does who is physically present. Members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person or entity outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

I invite the witnesses to make their opening statements. Those opening statements were circulated to us. I note that the report from the Housing Commission and the minority report previously were also circulated to us. I invite Mr. Stanley to speak and we will then follow up with Dr. Lyons.

Home for Good would like to extend our thanks to the committee for the invitation to attend and give some thoughts on the Housing Commission's proposed wording for an amendment enshrining a right to a home in the Constitution. As the committee is aware, Home for Good is a coalition of organisations and individuals who believe that constitutional change is needed as an essential underpinning for any programme to tackle our housing and homelessness crisis.

In preparation for these comments, we reviewed previous submissions made to this committee in addition to important points on the issue of a right to housing. I was struck by some very telling statistics. The Simon Community reports that, at the end of 2014, 3,738 people were reported as officially homeless in Ireland. As of June this year, that number stands at 14,303. In ten years, these has been an increase of more than 10,000 people residing in emergency homeless accommodation, to say nothing of the number of people experiencing hidden homelessness.

There are numerous factors contributing to this fundamental failure but one factor that is clear is that our Constitution is often perceived as imbalanced towards private property rights without any equivalent right to housing being recognised. It is clear throughout the Housing Commission's report that this perceived imbalance is restricting the capacity of the State to implement the types of policies we need to tackle the housing crisis.

Clarifying the constitutional question is only one of the important reasons for us to insert a right to housing into the Constitution. More importantly, it presents an opportunity for us, as a people, to clearly and boldly enunciate our values and a national moral position that every person is entitled to access to adequate housing. As Professor Colm O’Cinneide has previously advised this committee, it also presents the opportunity for an amendment that could act as a catalyst for political and legal change. Furthermore, it could present an opportunity to create an enforceable right not only encouraging the State to adopt policies to vindicate a person’s right to a home but providing that, where people or families are fundamentally failed in this regard, they have the means to enforce their rights against the State.

In November 2020, Home for Good provided our proposed language for an amendment to this committee, seeking to insert a right that is directly enforceable and which includes a separate statement of the State’s obligation to realise that right within available resources. That appears on page 27 of the Housing Commission’s report. The Housing Commission has recommended instead to insert a new Article 40A, spread over two subsections.

The proposed wording from the Housing Commission is quite similar in a number of ways to the language we had recommended. If inserted into the Constitution, the legal subcommittee of Home for Good is confident that it should create a directly enforceable stand-alone right. The drafting also contains a number of strengths. The proposed Article 40A.1, which paints a picture as to why we must respect a right to housing, may well provide welcome clarity to the Oireachtas and Judiciary in interpreting the scope of the right. In addition, any legislation or plans undertaken by the Oireachtas to vindicate such a right should also be informed by the expansive body of guidance on the legal meaning of "adequate housing" in international law, in particular under the International Covenant on Economic and Social Rights. While we cannot guarantee the manner in which the courts will interpret the Constitution, it appears that the word “therefore” in Article 40A.2 may require the court to have regard to the importance of adequate housing when interpreting the justiciable right. The standard set in using the language “as far as practicable” reflects other sections of the Constitution, including Article 42A, which is related to the rights of children, and Article 40.3, which is related to personal rights. The word “pledge” appears in Article 41.3, which is related to the institution of marriage. The point I am making is that this is all language that should not be unfamiliar to Members of the Oireachtas, legislative drafters, practitioners or the Judiciary. That provides welcome clarity that may be lacking if different language was suggested.

In the Housing Commission’s report, the responses to its public consultation are discussed. The commission indications that it received substantial numbers of submissions from the public. It noted that many of these submissions voice personal distress at the consequences of housing precarity, in addition to anger and frustration at the intractability of the housing crisis in Ireland. These are the voices that inform the work of the members of Home for Good. These are the voices that should be considered when seeking to amend our Constitution, making a statement of our values as a people. In so doing, we can clarify the legal and constitutional position, express publicly the importance of a right to a home and place an enforceable obligation on the State to take measures to protect this right.

I hope the members can hear me okay. I apologise that I cannot be there in person. I doubly apologise if it suddenly goes dark here. I am travelling for work and there were two power cuts in the last hour. If I go dark, that is what has happened. It is not that somebody has come out to get me.

I thank the committee for the opportunity to present. I am an associate professor in economics at Trinity College Dublin with a focus on housing. At the request of the Minister, I served on the Housing Commission from its establishment in late 2021 until its dissolution in mid-2024. I contributed across its terms of reference, in particular acting as chair of the demand working group. During 2023, I also chaired the subcommittee that prepared a minority report on inserting a constitutional amendment on the right to housing in the Irish Constitution. In this opening statement, my aim is to provide a brief overview of the origins of that minority report and its preparation before moving on to the substance of the report with particular regard to systemic solutions to Ireland’s housing crisis.

On the origins, in brief, the minority report on the right to housing arose due to unanswered questions that a number of commissioners had regarding the report prepared by the commission subcommittee working on the constitutional amendment, that is, the majority report. In particular, given that there is no barrier to a healthy housing system in the Constitution as it currently stands provided there is active Government policy in supply and demand supports, a number of commissioners had questions as to the relative merit of the proposed insertion compared to the status quo. There is unambiguously no constitutional barrier to a healthy housing system and no barrier to passing legislation and policies that would lead to and maintain a healthy housing system. This was something where both the minority and majority reports agreed. Page 3 of the majority report states:

In fact, Articles 43.2.1 and 43.2.2 of the Constitution provide considerable scope to the Oireachtas to regulate private property rights in accordance with the principles of social justice and to advance the common good.

In section 1.2 of the minority report, this is discussed in more detail. For example, the section outlines the role of Article 40.5 of the Constitution, which often interpreted solely as a "negative protection" but which has also acted as a "positive protection". A new and explicit right to housing in the Constitution is, therefore, not a necessary ingredient to having a healthy housing system in Ireland. The question on the worth of any proposed amendment is therefore a question as to the costs and benefits of any proposed amendment if inserted into the Constitution.

At a basic level, as the majority report stated, the challenge appears to relate to perception. As it stated, it is “evident that there is a pervasive perception, particularly among government actors and legislators, that the Constitution does in fact present such a barrier”. Those of us who support the minority report have full confidence that, if Members of the Oireachtas are given appropriate legal advice and assured in introducing changes necessary in the law, they would have the courage and determination to do so. However, as written in the minority report, a proposal to hold a referendum to amend the Constitution to correct a “perception” or to clarify or demonstrate commitment to solving the housing crisis is misguided and unjustifiable. In part, this is because there must be some threshold for making constitutional amendments.

Such amendments are costly even in just their administration but can have far-reaching and profound consequences. A key unanswered question for some commissioners arising from the majority report was on the likely legal consequences of the proposed amendment. The lack of an answer prompted significant concern, which ultimately led to the minority report. It is uncertain how courts would interpret the wording proposed in the majority report. Its meaning would only be ascertained on a case-by-case basis as per litigation. Those of us who supported the minority report believe that one of the most important things for a healthy housing system is certainty. Housing policy should be developed by the Oireachtas and not reactively by the courts based on individual cases.

There is no doubt that there are many worthwhile reasons a constitutional referendum might be required but allowing one to take place in order either to correct a perception or to engage in the signalling of values would seem to fail any reasonable bar. As Dr. Conor Casey, who is here today, said in his submission that it would be “constitutionally irresponsible” to pursue a referendum on the right to housing based on nothing more than “an ultimately mistaken political perception” of how Articles 40 and 43 are limiting the Oireachtas’s ability to regulate private property rights.

The second part relates to the preparation of the minority report. A subcommittee of two commissioners, Mr. O'Flynn and me, was formed to prepare a minority report, and I was chair of that subcommittee. Our report was ultimately supported by Dermot O'Leary and submitted to the Minister in November 2023. As I am sure is obvious, neither Mr. O'Flynn nor I has any legal training, so to ensure that our report made a meaningful contribution to delivering the Housing Commission's terms of reference, the subcommittee engaged Peter Kelly, the former President of the High Court, as senior counsel, and Claire Hogan, BL, to provide legal advice. The subcommittee had further support from Philip Lee LLP.

We formed a working group which reported to the subcommittee - in line with the established mode of working within the Housing Commission - which could add further legal expertise and opinion. In forming this group, we aimed for a number of different views, in the belief that difference in perspectives makes for better decision-making. That working group included Noeline Blackwell, then CEO of Dublin Rape Crisis Centre; Mark FitzGerald; Michael McDowell SC; Michael Peart, judge of the Court of Appeal from 2014 to 2019; and Alex White SC.

Moving on to the substance of the minority report, as the joint committee members will know, the majority report proposed a two-part amendment to create a standalone right in what would become Article 40A and place it in the fundamental rights section of the Constitution, similar to the rights to life, equality, liberty, one's good name and freedom of expression, and property rights. Notably, it was not proposed to insert it in Article 45, which contains the "Directive Principles of Social Policy", taken to be for the general guidance of the Oireachtas and "non-justiciable", that is, it is not possible to sue the State in relation to them.

In the view of the minority, the majority's proposal is vague enough that it could create a far-reaching justiciable right that would in turn create significant difficulties for the judicial branch of the Government and at the same time not improve housing outcomes in any material way. In other words, supported by the legal expertise on which we could draw, our conclusion was that the majority's amendment had a high potential cost, arising from the uncertainty of the meaning of the wording, the cost of litigating this and the cost of potential payouts to individuals, and a low level of potential benefit.

In that sense, the proposed amendment did not engage with the housing shortage as a systemic issue. This is in contrast to jurisdictions such as Portugal, where Article 65.2 of its constitution outlines four obligations placed on the state by its "right to housing", including the planning and implementation of a housing policy within the context of wider planning and the promotion of low-cost and social housing, together with local government. The other two elements of the Portuguese article are the stimulation of access to owned and rental housing and of private construction, subject to the "general interest", and supporting local community initiatives.

While such international experience suggests that the judicial branch exercises its power only where there has been a "persistent and systemic failure", to quote from page 6 of the majority report, the majority's proposal seemed instead to create immediately enforceable obligations on the State in respect of individual citizens. In the context of a housing deficit of likely greater than 300,000 homes as of now, based on the commission's own analysis, this element of the majority's proposal would certainly need to be investigated more closely than its report did. Constitutional experts would point to the phrase "protect and vindicate" as implying a clear duty, and not something that the Government, or indeed the courts, could pretend is softened somehow.

Ultimately, it was the minority's view that an individual justiciable right would, therefore, where financial damages are involved, simply have the effect of prioritising some over others and not address the underlying issue. It would effectively give the State the chance to write a cheque and make that day's problem - in other words, that litigant - go away, and no doubt it would do the same the next day. Those who would, so to speak, "win" under the new system would be those with better access to the courts system, and we know that, ultimately, access to the courts becomes easier with more means. There is a real risk, therefore, with the majority's proposal that it would enshrine housing inequality rather than combat it.

It is agreed by both the majority and minority reports that there is no impediment in the current Constitution to addressing Ireland's housing crisis. It is the view of the minority, further, that the majority's proposal carries a real risk of making the crisis worse rather than better. Given the terms of reference given to the commission, which seemed to assume a referendum would take place, the minority report explored in its final section what a systemic solution might look like if placed in the Constitution.

The minority report's proposal actually comes from the list of options in the majority report itself - to place, in Article 45:

... an obligation on the State to draw up a long-term plan on housing, which would be reviewable by the courts, in a manner akin to the Climate Action Plan mandated by section 4 of the Climate Action and Low Carbon Development Act 2015, which was considered by the Supreme Court in Friends of the Irish Environment v The Government of Ireland. This would frame housing as a societal problem that the State is obliged to tackle rather than an individually enforceable right. The emphasis would be on whether the State is adequately meeting its aims, rather than the impact on a particular individual.

As section 3 of the minority report points out, there is no requirement to involve the Constitution in this. The Friends of the Irish Environment litigation demonstrates that a State plan arising from legislation and not from the Constitution - one addressing a systemic crisis - is reviewable by the courts.

Nonetheless, all this is being written after decades in which housing policy has failed, creating an insufficient number of homes, with those that are built disproportionately in the wrong locations and designed for the wrong size of household. Thus, it is not hard to see why it would be appealing to make the Government answerable, specifically on its long-term housing strategy, to an outside agency. While that does not require an amendment to the Constitution, if voters wanted to ensure that a change of government did not bring about a change in legislation and watering down of its accountability to the courts, then an amendment could do that. It was for these reasons that the minority report made the recommendation that it did.

As outlined in the minority report, blaming the Constitution for Ireland's housing woes is looking in the wrong direction. It is trying to fix something that is not broken. The fix proposed in the majority report could make things worse, by giving the Government the opportunity to simply pay off those who make it to the courts, rather than making systemic fixes. There is nothing in the proposed amendment in the majority report that would require the State to address the housing challenge. The housing system is broken because of poor policy, not a poor Constitution. Systemic fixes are needed. The minority report would require the Oireachtas to make those systemic changes and the performance in this regard would be reviewable by the courts. For that reason, the long-term benefit to society rather than the benefit to individuals is, we think, the key difference between the minority and majority reports. I thank the committee for its time and I look forward to Members' questions.

I welcome the opportunity to present at today's session. I would have liked to have attended in person but, unfortunately, the notice was short and I could not move a prior commitment in Cork. As the Cathaoirleach said in his introduction, I am the chairman and CEO of the O'Flynn Group, which has been in the development business since 1978. Housing development has been a major portion of our business, and since that time we have delivered circa 15,000 houses in a number of locations. We are currently developing residential on five sites in Cork and two in greater Dublin. Like my fellow commissioner, Ronan Lyons, I served on the Housing Commission from its establishment in late 2021 until its dissolution in mid-2024. I contributed across its terms of reference and I acted as chair of the supply working group.

On the issue of the constitutional referendum, I had an open mind. When the appointed subcommittee first presented its draft report, I had a lot of serious questions. At no point did I receive any satisfactory answers. As the commitment given on accepting my appointment to the commission required me to act independently and objectively, I was unable to support the majority report. With Ronan Lyons as chair, I participated in the subcommittee which prepared the minority report.

Dr. Lyons has already outlined in some detail the core issues which led to the minority report so I will not repeat those other than to say that, in my opinion, an amendment to the Constitution is not necessary. The reason some people are denied housing is not that the State does not recognise their right to housing; it is that there are simply not enough houses being built, for many reasons, which I am happy to discuss in this forum if convenient.

Granting of individual rights to housing does nothing towards generating enough housing to accommodate all who are in need of housing. The only way the right of every citizen to housing can truly be vindicated is to create enough houses and a properly functioning housing system.

The proposed amendment in the majority report is not appropriate as it grants rights to individuals. When there are not enough houses, a serious consequence of that is that the individuals or groups of individuals who litigate will be given preference for available housing over those who do not litigate, or the State will end up paying money to those whom we cannot house. It makes far more sense that this money would be invested in putting in place the infrastructure and housing this country so badly needs.

The minority report which Dr. Lyons and I produced and which was also supported, as Dr. Lyons said, by another commissioner colleague, Dermot O'Leary, on the other hand, compels the Government of the day to adopt and implement policies that will actually fix our broken housing system.

Some would say including the right in Article 45 is a cop out because that article refers only to directive principles of social justice and is not actionable, that is, it is not possible to sue the State to enforce those principles. However, the minority report proposes a sting in the provision to be included in Article 45 to make the Government’s progress in addressing housing reviewable by the courts. That is really important. The majority report relies on international experience to say the courts will not enforce individual rights unless there has been a persistent and systemic failure on the part of Government. However, this view does not take account of the fact the wording of the laws examined in other states is very different from the wording proposed in the majority report and in some cases it is closer to the wording proposed in the minority report. It is disingenuous to create legal rights to something that for many does not exist and it is wasteful and irresponsible to spend significant money on a constitutional referendum both reports acknowledge is not necessary. The only reason given for the amendment in the majority report is that its authors say our elected representatives are hiding behind an alleged barrier in the Constitution to avoid introducing laws that might impact on property rights because they do not want to do what is required. The authors say elected representatives are not capable of understanding or not sufficiently committed to putting the housing system right and that the only way they can be compelled to do it is by putting individual rights in the Constitution. I do not accept that is the position of the people elected to Dail Éireann and have no doubt members may have something to say about this.

The minority report says a far better option is to provide elected representatives with the legal assurances that they can introduce laws that are proportionate and fair and to require the State to address the housing problem progressively and to have that progress reviewable by the courts. The law is not broken. Our housing targets have been too low for a number of years and because of this our zoning, infrastructure delivery and planning system are all out of sequence. Basically, our housing system is broken. Elected representatives need to fix what is broken and not divert attention from the real problem with a so-called fix that will give rise to false hope and expectation and lead to other risks and costs. Both the majority and minority reports agree there is no certainty around how the courts will interpret the wording proposed in the majority report. At a time when hundreds of thousands of our citizens are in need of housing, it is irresponsible to introduce more uncertainty than already exists.

It was rather unfortunate that a vote was taken on the majority report at a time when some commissioners were not satisfied that the full information had been provided to all commissioners. The urgency to finalise the report was not apparent. It would have been preferable if both arguments and both options had been outlined in full to all members of the commission before the vote was taken. The record will show I have dedicated much of my time over the past decade advocating for policies which would make housing affordable and accessible to all. Having worked across the entire commission and chaired the supply work group I can see that with appropriate policies and strong leadership we can make a meaningful impact on reducing the housing deficit in Ireland. This, and only this, will truly vindicate the right of our citizens to adequate housing. I thank the Chair and the members.

I thank Mr. O'Flynn. All those opening statements are available on the website now for anybody who wishes to read them.

I wish to clarify a couple of items. We extended an invite to members of the Housing Commission so both sides could be represented, but unfortunately members of the commission who were not on the minority report side were unable to attend due to short notice and other commitments. We have a note from Mr. John O'Connor, who was the chair of the commission, stating we have a Housing Commission report and we have a minority report. Just to clarify, it is not a majority report; it is the Housing Commission report and then we also have a minority report as has been outlined by witnesses. I might also read into the record for anyone not familiar-----

I will bring Mr. O'Flynn back in a moment. That note was from the chair of the Housing Commission in correspondence to the committee.

The amendment proposed by the commission in its report would be to Article 40. The new Article 40A would contain two subarticles:

1° The State recognises that having a home is of fundamental importance to quality of life and that access to adequate housing, by facilitating the development of family, social and community relationships, promotes the common good.

2° The State therefore guarantees to every citizen a right of access to adequate housing and pledges, as far as practicable, by its laws to protect and vindicate that right.

I wanted to read that into the record.

Mr. O'Flynn wanted to come back in on that.

I just want to comment on the ex-chair of the Housing Commission's suggestion that for some reason there is a Housing Commission report and there is a minority report. The very fact we are saying there is a minority report would suggest there is a majority report. Why would you call it a minority report? For the record, when we had the meeting where the approval was put to the commissioners, Dr. Lyons and I made our position clear. When it was clear there was a majority voting in favour, the minority suggested at that very meeting we would be exploring this and we got the permission of the commission - if I can use the word "permission" - to produce a minority report. It is just nonsensical to suggest there are two reports, with one the commission report and the other the minority report. That is not the position as I see it, and Dr. Lyons can speak for himself.

Okay. It is just the two reports I have. One is entitled the Housing Commission report and proposed wording for an amendment and the second report I have is called the minority report. I just wanted to clarify that there is the Housing Commission report and there is minority report. It is just for clarity. Mr. O'Connor wrote to us to outline that as well.

I will go to members now. Deputy Clarke is going to take the first slot.

I thank the Chair for obliging Deputy Buckley and I so we can be here. It is much appreciated.

We are not going to get anywhere constructive, and it is indeed quite futile, to be having discussions at this juncture about what a report is or is not titled. We are here to discuss the report. We have witnesses here to outline their opinion on it. It is also important to say that if the Minister had acted on this we could have had a referendum this year, but he chose to sit on it. In the dying days of the Government here we are having a committee meeting when this should have been treated with a lot more seriousness at a much higher level - with all due respect to this committee - in the Dáil and Seanad Chambers.

I have a very straightforward question for Mr. Boyle and Mr. Stanley. Mr. Boyle said there were people who were fundamentally failed and I could not agree with him more. What came foremost to my mind was a family I am very well aware of. We have to talk about this as a State-wide issue. It is not through any mischievousness, but when we speak of a housing issue, a housing crisis and a shortage of houses we tend to focus on the very urban areas. My constituency is a rural one. We are as affected, if not more so, by the lack of appropriate housing. I am using the term "appropriate housing" in a very specific way in relation to this family because no matter what it is they do for their children with disabilities the goalposts are ever moving. They will get to one set and it will be moved again. They get to that one and it is moved again. This has been going on for years now. In that specific circumstance, what benefits do Mr. Boyle and Mr. Stanley see constitutional change having for them?

It is a real privilege to be before this committee. I agree with much in the minority report.

I agree with Dr. Lyons entirely that if a referendum were merely designed to clarify what is already known, that is, the ability of the Oireachtas to regulate property rights for the common good, there would be no point. The wording in Article 40A goes well beyond this. Its main intent is to create a distinct constitutional obligation and onus on all branches of State, primarily the Oireachtas and Government, to come up with proposals, plans, policies, legislation and a system-wide response that helps to vindicate the right of access to adequate accommodation. This would help embed regard for the end into the law-making process on a departmental level, in the Office of the Attorney General, the Cabinet and in Oireachtas pre-legislative scrutiny. It would be valuable to embed concern for the constitutional end of adequate housing in the law-making process.

The other benefit to a provision like is that it would provide a constitutional backstop in the form of judicial oversight to assess the basic reasonableness of Government policy to ensure no group is unreasonably excluded from consideration when it comes to forming policies concerning access to housing or that the Government has not made irrational and indefensible policy choices that cogent expert evidence can fairly show are simply not appropriate to the ends the text seeks to achieve in respect of adequate housing. This would put the primary onus on the Oireachtas and Government but like with other rights we already have such as the right to a primary education, the right of children whose parents cannot take care of them to be cared for by the State and the right to criminal legal aid to ensure a fair trial, the courts can play a valuable backstop role where Government action falls unreasonably short. They played a valuable role in other rights and they could also play a valuable role here. Overall, this would be added value. It would not simply clarify powers the Oireachtas already has. In some ways, one can think of the backstop role as encouraging the Oireachtas to use the powers it already has. It will add distinct value in those ways.

I will direct a question to Dr. Lyons and Mr. O'Flynn. I listened to what both of them outlined. I understand the content of the second report. I think Mr. O'Flynn referred to the cost and this being an unnecessary step. Outside of the financial cost, does he place any value on what Dr. Casey said about assessing the reasonableness of any Government policy? What negative outcome could there be from having a referendum?

One must first say what is the benefit. Of course Dr. Casey is an expert in this area but the blunt reality is we need more housing. We do not need housing to be available to those who have the ability and means to litigate and access to courts. We need housing for all our citizens and not a selective way to get housing. Having access to court to individually compensate people who take that step is not going to fix the housing crisis. We need to resolve housing. It is a basic right for all. I am interested in housing being resolved for all our citizens, not for a small number of people or for people to think that because this is in the Constitution, it will be a silver bullet. It will not solve the housing crisis or the shortage of housing. I heard in the earlier statement about homelessness. Homelessness is an awful situation but people sometimes confuse homelessness with a housing shortage. There are two very different situations. I am against both but am interested in policies and change that will resolve the housing issue, not the perception that this constitutional amendment is going to change anything. It will not make the difference. It will cost money, to answer the Deputy's question directly. I would prefer that money to be spent on providing a wider range of housing than individually compensating people with the means to go to court. I want to solve housing for everyone, not just individuals.

I agree with Mr. O'Flynn on the last point. Housing needs to be fixed pretty pronto for a growing number of people. However, I am cognisant of the fact that those who have been failed by successive policies are the ones who most need faith and trust to be restored in Government policy. By putting this amendment to a referendum, does he place any value on them receiving the additional trust and faith that there will be additional access, not even as an individual but if the Irish Council for Civil Liberties, for example, decided to look at an element of Government policy and found it to contravene the Constitution?

I am not saying some individuals will not succeed with this constitutional change but it will not resolve it for the masses of people who are short housing. It will not resolve anything in terms of the shortage and crisis we have. We need to solve the housing crisis. We do not need to come up with an amendment to the Constitution; that will not make any significant difference. That is why, having considered the report, I am interested, as an individual appointed to the Housing Commission, in making a difference in solving the bigger crisis. I am not against any individual situation being resolved but let us look at how to deal with the big crisis and resolve it. That is the policy and legislative change to which Dr. Lyons alluded. In our expert group, we had serious legal input because it is not our area of expertise but we also had practical input as to how to do this better. We think the minority suggestion and wording is a far better solution. We are all on the same side. We are all trying to resolve a crisis. It is about how to do it best.

Listening to Dr. Casey and as Mr. O'Flynn just said, we all have the same motivation. In some ways, when Dr. Casey described the proposed amendment, he could have been describing our proposed amendment. I, and the legal experts who advised our subcommittee for the minority report, could not see in the majority report or whatever we term it the impetus to get Government to take action at a systemic level. I will read out our proposed constitutional amendment. It has three short paragraphs, each one sentence, concerning Article 45(5):

i. The State shall direct its social policy towards ensuring adequate affordable housing for every citizen, as part of a national housing policy that meets the needs of its citizens.

ii. In furtherance of such obligation, the State shall take legislative and other measures, within its available resources, to achieve the progressive implementation of such a housing policy.

iii. Notwithstanding the provisions of the preamble to this Article, compliance with the requirements of paragraphs 5(i) and 5(ii) shall be cognisable by the Courts established by Article 34 of this Constitution.

Going back to the family the Deputy had in mind, what will the Government actually do and how will it be compelled to take action? We felt our proposed amendment was much more likely to get that reaction and the steps needed than the majority's proposal. I hope that helps to clarify. I just realised the oversight of not including our amendment in my opening statement.

That is fine. The Housing Commission report recommended wording for the Constitution. The minority report is of the view that the constitutional change is not required because there are other ways of dealing with it. However, if it is decided that there is to be a referendum, Dr. Lyons has proposed alternative wording.

I thank the Chair. To take off from where Dr. Lyons finished, it would be helpful to have that wording because it is not in his opening statement

I have taken a few notes on what he said.

As regards the minority report, was it just two members of the commission who constituted that minority?

I apologise. As Mr. O’Flynn mentioned, a number of commissioners - certainly more than two - had questions about the report, that is, the report supported by the majority and prepared by the commission. A decision had to be taken at that meeting, however. People either had to support it or hold their peace. Mr. O’Flynn and I said we could not support the report in those circumstances. We then prepared a minority report. While I am not aware whether every member of the commission read the minority report, Dermot O'Leary read it and subsequently wrote a letter to the Minister stating that, of the two reports submitted, he supported ours. I have not received any confirmation that other commissioners read it. That is not to disparage them; I accept that everyone has a lot to do. It is not the case, however, that we can say for certain that all of the other commissioners preferred one report over the other. We do not know that for certain.

I can add one thing, of which there is correspondence. Once we submitted our report, commissioners were advised that they were not allowed to state that they supported it because they had already indicated their support for the other report. I commend Dermot O’Leary on reading it nonetheless and on writing a letter to the Minister stating that he supported it. Obviously, we objected to that because it was not particularly fair. This, therefore, may affect the apparent number of commissioners who supported one report or the other.

Senator Cummins has asked a relevant question. Commissioners were not given the opportunity to consider both reports. Dr. Lyons described the way in which it was put well, which was very unfortunate. We would have liked the majority report, or whatever they want to call it, to have been held until we had finished our minority report. People were put in a position whereby, having supported the report at the meeting where Dr. Lyons and I objected to it, they could not switch or consider our report subsequently. The question is highly relevant.

Dr. Lyons and I worked very hard that summer. It took from July to November to finalise the report with the support of a helpful work group. By the time our report came out in November, people who had supported the other report in July felt they were not in a position to consider our report. That is important, in case people will think that, of the 12 commissioners, nine or ten of them, or whatever way you want to look at it, went one way and the other two or three went the other way. That is not the position at all because both reports were not available at the time.

In the context of the great advice we got and the question we posed, unfortunately, as I said earlier, when the sub-committee came to the commission with the recommendations, it was, for want of a better description, pushed through at that meeting when we felt there were unanswered issues. That is why we took the serious step of preparing a minority report. There were a lot of unanswered questions. Speaking for myself, I certainly took my position on the Housing Commission very seriously and felt I could not support the report. That is why we explored another way of doing this, given that we all have a common objective. We all want to fix this situation. This is systemic rather than individualistic. I was coming at this from my experience in the housing area.

I will make one comment before Mr. Boyle comes in. I read Mr. O'Flynn's opening statement last night. Much of what he said I could say myself. It is a topic about which I have an open mind. I am on record as saying so. While I do not feel I have been fully convinced of the need for it in full, it is not something that I have ruled out either. The Housing Commission analysed it in far more depth than this committee. The last session we had on this issue was probably in 2023. It is a topic that warrants deep consideration because of the points being made on both sides. I invite Mr. Boyle to come in.

We are a group that has concerns about the right to housing in the Constitution. Clearly, there seems to be some sort of dispute within the Housing Commission. There is one side to that. I wish to clarify that we are not speaking for the Housing Commission or speaking against it. We are here to comment on the wording from the Housing Commission.

It is important to clarify that. Home for Good has been before this committee before where we had these frank and honest discussions. The question I wish to ask Mr. Boyle or, perhaps, Dr. Casey relates to the points that both Dr. Lyons and Mr. O'Flynn made in their argument that this constitutional amendment is not required and that this can be achieved without it. If there is to be a constitutional amendment, however, as has been put forward, I assume Housing for Good has looked at the wording put forward by the minority report. What are its views in this regard?

There are a couple of pieces to this. One of the things we have highlighted, and it should be very clear, is that the commission’s report does not come down on the side that a referendum is unnecessary. That is not the case. It indicates there is a lack of clarity around this issue and the ability to take plans and legislation. We point out, however, that this is not an either-or situation. If it is the case that, constitutionally, we are able to bring in certain policies without constitutional change, that is great; we can do that. At the same time, the benefit of a justiciable right to housing stretches beyond that. It stretches into, as I am sure Dr. Casey will discuss again, the backstop idea. It also stretches into the impetuous side of it.

I am sorry to cut Mr. Boyle off but my time is up. I am sure the Chair will give me just as much latitude as the previous speaker. My specific question relates to the wording in the minority report. A different view is expressed in it, and that is fine. However, a wording is suggested in the report to cover circumstances where certain action might be taken. This is the Joint Committee on Housing, Local Government and Heritage. We have not decided on any wording. That is what I feel this forum is for. I am asking a question specifically about the wording put forward by Dr. Lyons and Mr. O'Flynn.

It is unclear from their wording as to how this creates an impetus on the State. Article 45 has traditionally been non-justiciable. They have indicated an intention to place language in Article 45 that is specifically justiciable. If there is any question about unforeseen circumstances, it may be about the idea of creating a justiciable right within an area that has never previously been justiciable.

At the same time, it is wholly unclear who they are expecting to take this litigation. It would be far more complicated to challenge a plan of a State as opposed to an individual failure on such a fundamental level as would be in a right under the proposed Article 40A. I would like to hear Dr. Casey's comments on that as well.

As my colleague Mr. Boyle said, I put most of my focus on the Housing Commission wording but I find the minority wording interesting. Reasonable minds may differ but having regard to both, it is actually difficult to say that we could put a cigarette paper in between them. The way I understand it, and I think the minority disagrees with this reading of Article 40A, the focus on the right of access is about putting systems in place. It is not about individual, specific guarantees that mean people can sue and get a house. It is about putting in place policies, laws and so forth that are reasonably and cogently fitted to providing avenues and circumstances in which citizens can secure adequate housing. That looks a lot like putting in place a housing policy that meets the needs of citizens, that functionally seems just like adequate housing that is able too meet the needs of citizens and, in furtherance of that obligation, to take legislative and other steps to achieve its implementation, subject to judicial review. There are considerable similarities. As I said, I have focused on the commission's wording because it is valuable but I cannot see much difference between it and the minority report. That is because, unlike the minority, I see Article 40A as dealing with systems, policies and reasonable frameworks that are fitted to securing access to housing that meets citizens' needs. As I believe the focus is on systems, I do not see much of a difference between the two.

Thank you, Senator Cummins. I am always conscious that those participating online are at a disadvantage. I may not see a hand being raised but if witnesses switch on their microphones and indicate, I will call them.

I do not know if we are going to have time to have further meetings on this topic but the committee was tasked by the Minister to look at these reports and report back to him. The Minister has also written to us indicating he will convene a group with expertise on this to also advise. Our role here is not to say whether the minority report or the majority report was correct. The fact that we have two reports and two suggestions is healthy. It is a good place to be because changing the Constitution is a very significant thing to do. We need to be cautious. I thank members of the Housing Commission and those who felt they could not agree with the commission's report and who took the time to produce their own report.

My first question is for Home for Good. Its representatives appeared before this committee two years ago and proposed a wording for the Constitution. The Housing Commission report proposes a potential wording for a constitutional change and the minority report outlines a possible wording for Article 45. How much does the Home for Good wording differ from that in the Housing Commission report?

My next question is for the minority report grouping. Its wording is not set out as specifically as the Housing Commission's report. Rather, it refers to changes to could be made to Article 45. It would be helpful if the group would submit to the committee the actual wording it would put in to Article 45. I will go to Home for Good first and then to Mr. Lyons and Mr. O'Flynn.

It may be helpful to read into the record again the different wordings. The Home for Good wording, which was first submitted in 2020 and then repeated in 2022, recommended a change to Article 43A, to read as follows:

43A (1) The State recognises and shall vindicate the right of all persons to have access to adequate housing and

43A (2) The State shall, through legislative and other measures, provide for the realisation

As distinct from that, the Housing Commission, recommended that a new Article 40A be inserted which would read as follows:

40A (1) The State recognises that having a home is of fundamental importance to quality of life and that access to adequate housing, by facilitating the development of family, social and community relationships, promotes the common good

40A (2) The State, therefore, guarantees to every citizen a right of access to adequate housing and pledges, as far as practicable, by its laws to protect and vindicate that right.

The two are quite close to one another. They both exist within the justiciable Articles 40 through 44 on personal rights. They both appear to be stand-alone justiciable rights which also include a statement of purpose. There is a mirroring there although, as I said in my opening statement, the Housing Commission has included language that is probably more familiar to the Judiciary, the Oireachtas and so on and more reflective of other elements of Irish constitutional law, in that it very clearly mirrors Article 40.3 as well.

Before going to Dr. Lyons and Mr. O'Flynn, I have a question for Dr. Casey. We now have three potential places within the Constitution, namely Article 43, Article 45 or Article 40. Dr. Casey said previously that the difference between Article 45 and Article 40 was very minor and that either one could potentially provide the solution. Does he believe that original wording from Home for Good for Article 43 brings us closer to a solution? If he had to put these in order of preference, deliverability or function, where would he go?

I got involved with Home for Good more recently so I am not as familiar with the original wording proposed. The Article 40A proposal and the minority report proposal are very similar. The latter proposes to make a carve-out in Article 40A at Article 45 to make it justiciable because everything else in Article 45 is explicitly non-justiciable. It makes sense to create an Article 40A for a few reasons. It uses the same wording as the other provisions in Article 40.3, uses the same language of the State "guaranteeing" by its laws to protect and vindicate particular rights of citizens, as far as practicable, and because it is so textually similar, it makes a lot of sense to put it in that location. There is an advantage in not putting it in Article 43 because that makes clear that the balance struck by Article 43 between protecting individual property rights and the robust powers of the Oireachtas to regulate those property rights in the interests of the common good are sound and remain unaltered by any constitutional change. There is no need to recalibrate that relationship. This is a new, distinct obligation on the State which might, in some cases, prompt the Oireachtas to use those powers that it already has. For those reasons, Article 40A makes the most sense.

Our view is that the optimal solution to address the housing crisis is through legislation with judicial scrutiny. It is important; that is what the minority grouping concluded. To go back a moment, we did suggest a wording and in doing that, we were not dissimilar to the Climate Action and Low Carbon Development Act 2015. We referenced that in the actual report. To answer a query a few moments ago, if there is a conclusion that a constitutional amendment is necessary, we came up with a wording and it is in the minority report. It is clearly set out that if there is a referendum held on a constitutional amendment relating to housing, the minority proposes the insertion of the following text into Article 45. It is there; there are three bits to it and I can read them out if members wish, for the record. I think Dr. Lyons read them out earlier, so perhaps he wants to come in on that.

Yes. Paragraph No. 114. Maybe we buried the lead, in that it is the final punchline of the entire report. It says that if we are going ahead with this, this is what we should do. I probably did not help my case by not including it in my opening statement. I probably should have attached the minority report or included the wording in there. I am more than happy to read it into the record again if it is helpful.

This is paragraph No. 114:

114. In the event that a referendum is held on a constitutional amendment relating to housing, the Minority proposes the insertion of the following text into Article 45, at its conclusion:

“5 i. The State shall direct its social policy towards ensuring adequate affordable housing for every citizen, as part of a national housing policy that meets the needs of its citizens.

ii. In furtherance of such obligation, the State shall take legislative and other measures, within its available resources, to achieve the progressive implementation of such a housing policy.

iii. Notwithstanding the provisions of the preamble to this Article, compliance with the requirements of paragraphs 5(i) and 5(ii) shall be cognisable by the Courts established by Article 34 of this Constitution.

That was the specific wording we proposed if a referendum was to be held.

Okay. I thank Dr. Lyons. There is talk in the minority report about a perception of a barrier, and the concern about holding a constitutional referendum just to deal with a perception. The witnesses are of the view that the legislative route is adequate to deal with this. Without going into too much detail, what legislation would they be seeking to introduce, and what legislation previously has been rejected based on the Constitution? I asked this question before when Home for Good was in. Where has the constitutionality of legislation to provide for housing been challenged previously? What are the significant or stand-out ones? Anyone who is online can come in on this.

It may not be the best place to answer this but off the top of my head, I know that the Housing Commission report supported by the majority - if that is what we are calling it - had in one of its appendices examples of statements where Members of the Oireachtas were under the impression they could not do X, Y or Z because of the nature of the Constitution and the protection of property rights. In that sense, it was kind of defeated before it even started. People were not even going to get into it because they thought that. As Dr. Casey has outlined in his remarks, there is no issue there. Our report went a different way and the advice we had was different but I respect his view that the proposal, as he reads it, creates something new. It is not just that we needed to fix this to clarify it for the people, and that there was something wrong in the Constitution. There is no serious legal expertise that believes there is something wrong in the Constitution. It is just something that seems to get mentioned a lot. That is my perception not as a legal expert but as someone who, at least this time last year, was very heavily invested for a few months in trying to understand this and to make a helpful contribution.

There has been legislation that has been suggested or put forward either by Government or the Opposition over the past number of years where people have said it would be unconstitutional, and therefore we cannot proceed with it. There is a check to that as well. If legislation is passed, it goes to the President, and the President has an oversight role as well. No matter what legislation is put forward in or passed by the Oireachtas, there is always the ability to test that legislation. At the end of the day, opinions and views are only opinions and views. The only one that really stands up, at the end of the day, is when a judge makes a decision that says this is not constitutionally legal. Then you amend that law, or the law passes and it stands up.

Hopefully, regardless of the side - majority or minority, whichever - one contribution that the Housing Commission will make is that it puts to bed that idea that there is any issue or challenge to Government taking the actions that are needed. Anyone can read both reports and see that is not an issue.

To answer the Chair's first question, he asked what we would be suggesting and what is the legislation that would help. The key bit for us, and we refer to it in the first paragraph of our proposed wording, is that we need a long-term systemic plan that adequately addresses the housing need that is there. That is something that would be, related to the rest of the commission's work, medium- to long-term in making a healthy housing system. The parallel was with climate change, which is a different type of systemic challenge but one facing the State nonetheless. These long-term plans need to be put in place. They would engender certainty and give clarity around what the medium- to long-term Government policy is. For me, at a high level, that was the most important contribution this area could make.

I thank Dr. Lyons. I am well over time but I do want to come back on a question afterwards if I get a second slot. A plan and a piece of law are very different. We have a Housing for All plan but we have legislation that underpins that, like the Affordable Housing Act 2021, etc.

The next slot is Deputy Creed, and then I will go to Deputy O'Callaghan. Is Deputy O'Callaghan okay with that?

I thank Deputy Creed. I have a question for Home for Good but first, I thank the members who served in the Housing Commission here for all the work they did on the full report. It is very detailed. A huge amount of work went into it and it is greatly appreciated. The huge amount of work they put in by a lot of us is a very valuable piece of work, and I do not think anything like that has ever been done before. There are a huge number of solutions in it overall so I am very grateful to the members who are present and everybody who contributed to that report.

I wish to ask Home for Good about the alternative suggested wording put forward in the minority report on page 33 - paragraph No. 114 that was read out. Does Home for Good have views on that alternative wording and if so, what is its view on it?

Dr. Casey has already indicated that there is a similarity between it and the recommended Article 40A. There are a couple of elements with it. To be clear, Home for Good still believes that we need a referendum on a right to housing. We believe that it should be a stand-alone justiciable right. We believe that not just because of the fact that there is some disagreement around the clarity of the constitutional powers but also that we need it as a means of creating impetus for legislation and plans, and a backstop.

We see in Article 45 that there is a suggestion that there would be an impetus on the State to take action on that. It is a little unclear as to how that works. There does not appear to be a backstop. There is some suggestion that there is judicial scrutiny baked into it but it is very unclear on what mechanism that is based and how that would differentiate from the Article 40A recommendation. This is still presumably individual litigants and is not building some sort of system whereby the judges are reviewing a plan of the State. That is not in there.

Another point to clarify is that when we are talking about the idea of an enforceable right to housing and this idea of the backstop, wherein the Government or the Oireachtas is compelled to create a plan which actually and truly respects the fact that having a home is of fundamental importance to quality of life and that access to adequate housing is by "facilitating the development of family, social and community relationships, promotes the common good", that is the impetus that is put on the State. The idea of a backstop is where there is a fundamental failure such that it interferes with the individual rights of a person that they can take proceedings.

It has been suggested that these proceedings will be taken by a certain cohort of society who have the capacity and means to do so or that there is going to be a wave of litigation. The reality is that that the recommended Article 40A is modelled very closely on Article 40.3, where there has not been this wave of litigation. Where litigation has been taken previously on this backstop, it has been focused on those most in need and most impoverished, generally, who will have been the ones who have been failed. It is pretty hard to see where someone with political power will be the one who is fundamentally and seriously failed by the State.

While we are being told there would be litigation under 40A, the Article 45 language is also suggesting that there would be some means of litigating but it is wholly unclear who could litigate that. The thing to note is that in much of the focus on litigation there has been talk about damages and so on, which is perhaps a red herring. In reality, it features throughout the report which refers to what that might look like. Where there is a fundamental failure, it is more likely to be an attempt to get an injunction or, most likely, in the model similar to the right to education, which is an enforceable socioeconomic right that has been in the Constitution for some time, it would be where the courts would be making a declaratory order to say that the State in this case has failed in its responsibilities to this individual and it should remedy the plans and legislation that it has in place. It is unclear if that is the structure that Article 40.5 cases might take. Perhaps Dr. Casey is able to enlighten me a little more on that.

I do not have much to add to that. On my reading of Article 40A, the concern is with a right of access. The commission report makes clear that it is concerned about putting proper plans, policies and frameworks in place to create avenues and circumstances conducive to access adequate housing. The proposal that would go into Article 45 in the minority report is also concerned about taking a systemic approach to it but it is the means by which housing that meets the needs of citizens can be promoted.

Looking at both of the proposals, the advantage of Article 40A is that one of the things that comes to mind is that there is continuity with the existing text and structure of the Constitution. The language in Article 40A(2) is of a piece with some of the most well-litigated provisions of the Constitution, such as Article 40.3, where it is guaranteeing "a right as far as practicable" and protecting and vindicating rights. Courts are familiar with that kind of language. It also refers to "pledge", which mirrors language in Article 40.1 on the protection of the married family. Courts have scrutinised these types of terms before and it would fit less awkwardly into our constitutional order than the language in Article 45, which is sort of alien - "progressive implementation" and things like that. That is not to say that it would be unworkable. It is just to say that if I was to give one reason I would prefer one over the other, it is that I would prefer continuity and congruity with the existing text and structure of the Constitution. There is merit in the Article 45 proposal, to be sure. It is that I just do not see what advantage it has over Article 40A. That is my position.

The majority of the Home for Good wording risks policy being created by the courts. Housing is complex and the development of policy in that manner creates serious risk for the housing system. It is essential that policy is made by the Government and not the courts. When Dr. Lyons and I got into the depths of how we deal with the housing crisis, we were looking at policy changes, at systemic failure and what big changes can be made. We do not have the legal experts on our side today and obviously there are legal experts on the screen and they are very good. Of course, they hear that. We do not want to get into a situation where the courts will decide in dealing with this crisis, rather than the Legislature. Dáil Eireann, the Government and those further down should be the people dealing with this, rather than having a prescriptive courts scenario. I would be concerned about that. Obviously, we do not have the legal expertise here to comment on that. I am concerned that the majority wording and the Home for Good wording risks the courts taking over, which is something we try to avoid.

At the same time, we are suggesting legislation and in the end Dr. Lyons came up with the wording he called out a few moments ago, in case this is required. We do not believe this amendment to the Constitution is required. Lots of other changes can be made because of the perception that is there. We had many a good session in our working group on these very points which are being discussed now. We are interested in a solution that will work. We are not interested in more court access that will not solve the housing crisis.

We are not in conflict in the point about policy. I spend my days, weeks and hours trying to cajole people into better policy. As Deputy Cian O'Callaghan indicated, we are very supportive of the commission report, particularly in the area of social housing, but also the broader report. We have had a number of events at which we have supported it.

There is a false narrative here around the courts taking over policy intervention. The benchmark we have often held this to, one which has already been mentioned, is the right to education. We do not have people going to court every day to vindicate their right to education. It is in the Constitution because it is valued and where there are very egregious failures of the State when it comes to the right of access to education, cases can be taken. I may defer to Dr. Casey on this point as he is better placed to speak to it, but in those instances the court put it back to government to say that it had failed in this instance and before taking any action, it was putting the matter back to the government to remedy it. That is my understanding of the way the courts engage with the Oireachtas. It is not that they start writing or deciding policy. Rather, they say they have manifest examples of the State failing, the State needs to do better and they are sending it back to the Oireachtas for it to do better.

I acknowledge that the agenda today is in some respects a response to a ministerial request to consider this particular aspect of the commission report. Considering the scale of the housing crisis and the excellent work done by the commission in all its collective wisdom, I wonder what the people on the housing list who are homeless would think about this debate. With the greatest of respect to everybody advocating constitutional change, it will not build one house and will not get shelter for someone who is homeless tonight on the streets of Cork or Dublin.

It will not build one house. It will not get shelter tonight for somebody who is homeless on the streets of Cork or Dublin. It is reflective of skewed priorities that we are not considering taxation, zoned land and a myriad of other issues that have an immediate and detrimental impact on the capacity to deliver more housing and that we are here discussing the, to some degree, academic issue and certainly the political issue of constitutional change. My experience over many years on such matters is that we should make haste really slowly on constitutional change. Once bitten twice shy but having been twice bitten and three times bitten including recently, we should be inclined to think. If constitutional change has a contribution to play, it is certainly the cherry on the cake. It is certainly not the cake or the ingredients that would bring about a solution to the housing crisis.

All the political parties represented in the committee membership, Sinn Féin, Social Democrats, Fianna Fáil, Fine Gael, the Green Party and whatever, may have significant differences on how we might fix the housing crisis. All of us want the same objective to increase supply and bring supply and demand into some degree of equilibrium. The danger is that the political capital that is there will be extinguished in this debate, which in my view contributes little or nothing to the practical physical challenge that we face. It is in that context that I have a few questions.

I certainly do not hold the Michael Gove view that we are fed up with experts - if people recall the comment he made in the context of the Brexit negotiations in the United Kingdom. When considering constitutional change, we need experts and I certainly would not be one. One of the phrases used in the proposed amendment is the familiar legal phrase, "as far as practicable". It was a line that was used back in the eighth amendment and used in many other legislative and constitutional provisions. How is it possible for someone to vindicate a justiciable right to housing when supply and demand are not in equilibrium? What does that justiciable right look like after going through the courts? I have had much engagement, as all of us have had, with constituents who have housing problems, including homelessness, being on a housing waiting list, etc. What does that vindicated right look like if not vindicated at the expense of somebody else who is waiting for a house?

The State will write a cheque to someone who has access to the courts but not everybody has. It seems to me that this would perpetuate an inequality rather than address a social problem which we all, in different ways, are anxious to resolve. The Constitution should be the last port of call and in some respects it should be at the Minister's and the Department's discretion. I am sure the mandarins in the Custom House are looking in at this believing we have gone down a rabbit hole now and will not be back for quite a while. What we should be doing is bringing in representatives from the Housing Commission. I appreciate that we have some commission members here today and there are others who could not be here. We should be bringing them in to discuss the substantive issue.

I have some questions for Dr. Casey who might be the leading legal expert in the room. What does a justiciable housing action look like? When supply and demand are out of kilter, how would that in any way add to the national good by addressing housing problems generally?

There is a lot of interesting content in the Deputy's contribution. The wording in the report was very deliberately chosen by the Housing Commission. The focus on access is intentional because its focus is on whether the Government and the Oireachtas have put in place, through their laws, policies and so forth, the means that are reasonably fitted through cogent evidence to provide the circumstances in which people can access housing. It is not the guarantee of a specific entitlement to a house that someone can go into court to enforce. The vindication would come in circumstances where the court believes on the basis of cogent expert evidence that the Government's policies are indefensible and irrational because they are simply not appropriate to secure the end the text seeks to achieve, which is adequate housing.

That is a fairly deferential standard. We are not looking for perfection. It would be a similar standard the courts use when they are assessing the adequacy of provision for primary education or adequacy of provision for children whose parents can no longer look after them and it falls to the State to step into a guardianship role. While they do not require perfection, they require reasonable endeavours. They require evidence-based policies that show they are stepping in the right direction. If the court is convinced by the evidence that reasonable policies and laws are not being put in place, the main mechanism the courts use to vindicate rights is a declaration to declare that this situation is unconstitutional and they put it back to these Houses and the Government to solve that situation.

That puts considerable trust in the Houses of the Oireachtas and the Government to take their constitutional obligations very seriously. The courts do not get into the business of dictating how the political branch should respond, but that is the main mechanism through which it will be vindicated, declaring that this state of affairs is unconstitutional and needs to be remedied. As I am sure every Deputy knows, the courts are very reluctant to be in the business of granting mandatory orders against the Government to take steps and I do not think this wording would change that. They can issue declaratory orders that the Oireachtas and the Government should take very seriously.

I do not believe that has answered the question. If Joe Citizen, as somebody who has been on the housing list for ten years or who is homeless, brings his case to a constitutional court, the outcome is that the State must respond to his vindicated housing right, as would be the consequence of a changed constitutional scenario. It means that that citizen gets a remedy from the State as an individual. That is only vindicated at the expense of others. The point I am making is that that might be well and good at a time when we have had the opportunity to look at all the other provisions in the commission report and acted upon them. This is the last thing we should be doing and not the first thing we should be doing. I appreciate, Chairman, that this is not your fault.

I will ask this question of Dr. Casey in another way and perhaps other witnesses may wish to come in on it. If we are to change the Constitution and believe that is the vehicle to bring about the perfect housing policy circumstances, what is the constitutional impediment that exists now? I cannot see anything in the Constitution that prevents the body politic, the Houses of the Oireachtas, from having housing policy that constrains it in any way.

To the first point as to what the remedy would be, someone would not be able to go into court and say they are entitled to priority over someone else on a housing list or entitled to a specific form of housing because that is not what the wording would provide for. The wording deliberately mentions access to adequate housing. The question would be whether there are proper policies, laws and regulations in place facilitating access. If the court believes that reasonable steps are being taken, notwithstanding delays, trade-offs and queues, then it is no dice and there will be no declaration. Even if someone does get a court to decide that the steps being taken are not reasonable and are not robust enough to vindicate the right of access to adequate accommodation, the remedy will be the declaration. It is a limited remedy. No one is saying this is a silver bullet.

The report is refreshingly candid, and correctly so, in stating that a constitutional amendment like this can only do so much. As with any issue, in order to see true progress, it will depend very much on this House and political will.

Where does the value come in? The value comes in because the court can act as a backstop. It can prompt political action when there has been unreasonable inaction. The courts have played this role in respect of at least three other constitutional rights and they have played a valuable role. In the 1990s there was a total lack of provision for primary education for children with special needs and disabilities. Litigation helped prompt serious political responses that put in what many people would say was imperfect but was the first attempt to make reasonable provision. The fact the court was there as a backstop was very important. It was similar with children who were at risk and in danger and the State had a duty to care for them. The courts coming in and saying the State had that duty and had to take steps was very important and helped kick-start policy responses. It was also similar with legal aid. The courts saying the system of legal aid was not such as to guarantee the right to a fair trial and the Government had to respond. In all these cases the court never dictated the outcome; it just said the steps the State had taken were not reasonable to vindicate this right and that it must try again and try a bit harder. That usually led to a valuable response. It is about keeping your expectations in line. If people think this is going to be a silver bullet that is not what it is going to do and they will always be disappointed. If they think it can make a modest, but valuable, contribution to an overall suite of responses, primarily coming from the political branches, that is where it can have value.

Deputy Creed has posed a number of interesting issues that are highly relevant and practical, if I can use that word. It is a big concern that people can go and get compensated, which takes money away from the system. We are looking at the big picture here, rather than the smaller solution for the individual who is in that position. Dr. Casey used the words “adequate housing” in his response to Deputy Creed and he did so quickly and easily. I struggled, with all the people we have engaged with, as to what those words actually mean, and they are in the article that is being proposed. I do not know what “adequate housing” means and I have not heard anybody say what it does. Perhaps this group will enlighten me. It is the kind of wording that scares the life out of me when it comes to going to courts. Deputy Creed has raised issues around the consequences, if I can use that word, and I would like to know whether anyone in the meeting can tell me what “adequate housing” means because I am not sure anyone knows.

I will come back on a couple of things. I direct Deputy Creed to pages 31 and 32 of the report. There are five key considerations as to what this right looks like in practice that have been detailed. Not all of them, in fact very few of them, are about going to court. It is about the impetus being put on the House. It is about a statement of values. It is also about the behaviour, for example, of local authorities when they know there is the potential backstop and where they have been shown there is a value system at play there.

The second thing I really need to say is it needs to be clarified that, as Dr. Casey said, this constant talk of compensation is a red herring. We are talking about declaratory relief wherein a person has been fundamentally failed. It could be a local authority that has failed to comply with its allocation scheme or a Government policy that is fundamentally failing to comply with the right of adequacy of housing. That is what we are talking about. It is declaratory relief. This is where we can compare, as Dr. Casey said, with the right to education, which is the clearest comparator to this recommended piece.

As to the word “adequate”, I direct the committee to the Housing Commission report and proposed wording for an amendment, page 41, which examines the definition of “adequacy” under the International Covenant on Economic, Social and Cultural Rights. There are seven pieces within that. This is not binding. It is international law. It would not be the first step for the courts to look at, but it has informed the definition of adequacy of housing in jurisdictions both within, and external to, Europe. The other thing is that if we accept Article 40A.1° then adequacy, as a legal term, will be informed by whether the policy and the type of housing being provided is such that it is facilitating the development of family, social and community relationships promoting the common good. The thing to note again is this is about the people making a statement in their document about the values they hold and putting the responsibility onto the House, which represents the people, to enunciate those values into policy. As for the focus on the idea of litigation, that should only take place, with this here, if the people’s representatives have so fundamentally failed individuals or families that they are forced to go to the courts. What the courts will do in that style is make a declaratory order that says the State has not complied sufficiently in this case, with this policy, in this local authority and a variety of different ways and send it back. That is what is happening here. It needs to be clarified and it is quite unfortunate there keeps being this talk about people going to seek compensation. It is a red herring.

I am sorry Mr. O'Flynn but people have to go through the Chair and I do not have witnesses questioning other witnesses. It is the members who ask the questions. We have ruled on that before. You can ask a question through the Chair if you wish to and I will bring you back in at a later point.

Deputy Buckley is up next.

Thanks very much Chair. I thank everybody for coming in. I am going to start in the middle. I have an admission to make to the Chair that Mr. O’Flynn is a former employer of mine, so we go back a good bit. There is certainly no conflict of interest.

I just will touch on a few points because a lot of it has been covered. A while ago we were checking what the European human rights commissioner said about the broad picture, which encompasses what Mr. O’Flynn said frightened the living daylights out of him. He was saying it was the availability of services, the affordability, the accessibility, the location and cultural adequacy. That could be anything. That is very broad. Mr. O’Flynn in his opening remarks said:

The law is not broken. Our housing targets have been too low for a number of years and because of this our zoning, infrastructure delivery [which is absolutely bonkers and we are miles behind on] and planning system are all out of sequence. Basically, our housing system is broken.

I move to Mr. Boyle. The problem with coming in last is you get all the points and all the articles. It was like a game of Scrabble a while ago when I was listening to all the different articles. Mr. Boyle said in the conclusion of his statement that "... we can place an enforceable obligation on the State to take measures to protect this right". Whether it is in the majority report or the minority report it was very interesting. Dr. Lyons stated:

Articles 43.2.1 and 43.2.2 of the Constitution provide considerable scope to the Oireachtas to regulate private property rights in accordance with the principles of social justice and to advance the common good.

He noted "This was something where both the minority and majority reports agreed." He continued by noting "The minority report's proposal actually comes from the list of options in the majority report itself - to place, in Article 45 [new text]".

We have all been talking about legislative stuff here, but it is down to building houses at the end of the day. We have had instances at other committees where there have been four or five people protecting each patch. We have two reports now. Can people not just get into one room and sign off on this? They could decide to take out the difference between Article 45, Article 43.2.1° and Article 43.2.2°. There was an issue with, I think, Article 40A.1°.

They are all rights and they respect housing. I am afraid of courts to an extent because it is about how you determine what a right is.

Mr. O'Flynn made a very interesting statement, He said: "I believe that the record will show that I have dedicated much of my time over the past decade advocating for policies which would make housing affordable and accessible to all.". At the end of day, this is what we are talking about. We want housing to be affordable and accessible to all. How do we, as legislators, ensure that affordability and accessibility for everyone is the main goal? How do we address that but also address the fact we have massive capacity issues when it comes to water and sewerage? We have an inundated planning system. It is very late in this Dáil term, but surely there could be some kind of a policy document, a Green Paper or something where everyone can sit down or even come in here and sit in front of the housing committee to thrash out these three points I have made and say, while we are at it, we need to have availability of services.

We have mentioned affordability and accessibility but we also have to look at the culture. This could be Traveller-specific accommodation or accommodation for people with disabilities. Everything has to be encompassed in that and, of course, location is vital for services. Have we gone too far? Have we missed the boat? There are probably only two or three weeks left in this term. There are probably only two weeks left because we are officially off next week.

What do the witnesses think of that? We have moved way past discussing it when the stakeholders here today have put it in their blueprints and their statements. How do we marry that together and say let us come up with a plan rather than Article 40A.1, Article 42.A. and so on. The question is open to anyone who wants to answer.

At the risk of self-promotion, what the Deputy has described seems a bit like the Housing Commission report in full, and not just on the constitutional element but the wider report in terms of how we bring everything together to bring about a healthy housing system. I know Mr. Stanley mentioned earlier there is a lot of support for the commission's report in the broadly defined social partnership system. That is where the solutions will be. In some ways, I am comforted by what Dr. Casey said about how there is not really a big difference between the two. If the concerns that I and Mr. O'Flynn had are smaller than we thought they were and there is not a huge difference, that is good news.

If there is an amendment and somebody takes a case, it will then be up to the Government as to how it will do this. The Government does not necessarily wait for that to happen; it could just try to do this. As I say, at the risk of self-praise or self-promotion, the Housing Commission report should be the frame of reference for whatever is left of this House and, indeed, for the next one too. It will be there and relevant for years to come.

I was thinking about what Deputy Buckley said. The majority report places enforceable obligations on the State to make and implement policy which vindicates the right of an individual that comes before the court. I am very interested in the declaratory order and the suggestion there is no compensation. I can assure the committee that is not what we discussed in our minority work group. The minority report places an enforceable obligation on the State to make and implement policy which works for everyone and I think that is where Deputy Buckley is coming from. That is the core and fundamental issue here and the difference between the minority and majority situation. We want to resolve the housing crisis for all, not just individual cases.

It is the responsibility of the Government, the Deputies and the Senators here to be proactive in a situation where there is a crisis like this. Whereas, if we rely on the courts, that is reactive rather than proactive. That cannot be what we need. I am a bit thrown by the declaratory order without compensation that has been mentioned because that is not what we were advised. I know Dr. Lyons just made a point there because of what has been said that there may not be a lot of difference between us but we need to think about the bigger picture here and not solve a perception that is not necessary. I have heard some very good legal minds outline it and explain it. That is why we set up the work group.

To follow on from that point, there is a sense in this discussion that the reason we are here is that we are in the midst of a housing crisis and the constitutional change will create an impression that there has been some kind of leap forward. I make the case that the housing crisis has been an impetus for more discussion on the insertion of the right to housing in the Constitution. It is a conversation that has been had a number of times by different Oireachtas committees and has been put forward a number of times.

The last time we were here with Professor Ó Cinnéide, and Mr. Boyle mentioned this in his opening statement, the professor talked about the catalyst and the impetus that could be inserted. We also talked about the counterfactual of where we would be now if we had a right to housing in our Constitution. When NAMA was created, there should have been a greater focus on the value of housing and not the choking of supply. The provisions applying to NAMA by the Legislature that a social good should be delivered from it were roundly ignored in fact. In terms of delivery of housing., would there have been a difference now? Where would we be if we had that right to housing in the Constitution? That is the way for the Legislature to think about it - as part of the recipe of success going forward for the next 20 to 30 years. That is why it has been part of the conversation within the Housing Commission. That is why the Minister put it in there, although I do not know what was in the Minister's mind so I do not want to overly declare that. However, it is part of the recipe for the long term. Nobody is making the case it is some silver bullet that will move us rapidly forward.

To Deputy Creed's point on where we should be looking, the Legislature and the public can do a number of things at the same time. There is nothing that says inserting a right to housing into the Constitution or inserting our values around the value of home that is explored informatively in the commission's report is a waste of the Legislature's time. Upholding the law and deciding on the Constitution is what members are here to do as public representatives. I do not think it is a waste of time or effort; it is part of the recipe for the long-term, sustained solutions that will move us forward.

This is a quick point on damages for breach of constitutional rights which is to say that courts sometimes award damages for breach of constitutional rights but they do not do it lightly. It is a very contextual assessment and it depends on the nature of the case. It depends on the nature of the right that is breached. In recent cases where courts have given damages, it tends to be breaches of rights that are very closely linked to basic human dignity.

In the Simpson case, modest damages of €7,500 were awarded to a prisoner who was kept in very unhygienic conditions for seven and half months in breach of his constitutional rights. There was a case where there was an egregious delay in getting someone to trial. The person was remanded in custody for around two years - it was the O'Callaghan case from 2021 - in breach of their right to a trial in due course of law. That person was awarded modest damages of €5,000. Again, there was quite a long delay in vindicating their right to a fair trial and liberty.

In cases involving the right to primary education, in the famous Sinnott case in 2001, the Supreme Court awarded £50,000 in damages as well as a declaratory order. That was in a case where there had been no provision for Jamie Sinnott over many years, which profoundly exacerbated his disability.

It is very contextual. It would depend on whether the Government and Oireachtas are taking good-faith measures, there is culpability in any failure and the level of damage caused. It would not be the case that anyone who feels aggrieved that they are not accessing accommodation quickly enough could go in and make an argument. The court will look at a whole range of factors, including culpability, the nature of the delay and the resource constraints. Our judges are very rigorous and do not award damages lightly in any way. I wanted to make that point for a bit of context.

To come back to Deputy Buckley, we fundamentally believe in the need to build proper policy and legislation. The Housing Commission's larger report on this is very important and says the same. I direct the Deputy to the top of page 16. It is stated that where the right has been most successfully realised in other jurisdictions where such a right has been inserted into their constitutions, and among the jurisdictions examined in the report, the right to housing has been underpinned by broad political support, manifested in terms of legislative and budgetary commitments.

This is not an either-or situation. We fundamentally need policy, budgetary commitments, a plan and to clarify the constitutional point that has been discussed, namely the claims that there is no issue with private property rights, but that is being relied on consistently. An Oireachtas paper from when I was a year old determined that there is broad scope, which is noted in the commission's report, under Article 43 for the State to be able to make certain policies without necessarily interfering with the right to private property, yet a few years later that is still being used as a defence. That is one aspect . Let us not suggest that the majority report stating that the only thing we are doing is clarifying that point. Clarifying that point is important, in particular if we have had 30 years of not clarifying it.

We need to have this as part of the omnibus of approaches. It needs to be included as part of policy, which is pointed out on page 16 of the report. As Professor O'Cinneide pointed out, this is a possibility for a catalyst of change wherein we say that our values as a people are this and we need to create a floor below which people will not fall and a powerful policies that are going to fix this problem. As we have done with the right to education, where those policies and plans so fundamentally fail people there needs to be some way in which the State is told by the Judiciary that it has been insufficient with plans or an individual has been failed in a case. If we do not amend the Constitution, we do not get that ability and impetus. If we amend under Article 45, as suggested by the minority report, it is somewhat unclear how justiciable rights would work under that article. As Dr. Casey stated, theoretically it may be that it may work in a similar way.

While that may be a justiciable right, it is also being placed into an area wherein the Constitution has set out directive principles of social policy. They have never had an impact before, therefore we do not see how the impetus is created. Let us be clear. It is not an either-or situation; it is about an ability to do this as an impetus and a tool with which we can review the State where it fundamentally fails in its plans and policies.

The Deputy raises a really important point. The Housing Commission has a huge omnibus of information. We do not need more external experts coming in to redesign the wheel. There is plenty of information; we need to get the impetus to get this done.

I will be brief as I am conscious of time. One of the motivations behind the option the minority report chose was something in the majority report, namely that the Article 40 version was explicitly motivated as an individual right not a systemic solution. The report outlines the advantages of the systemic approach that we ended up choosing. This is a more desirable means, from one perspective, of addressing the question of housing in constitutional terms rather than as an individual justiciable right, owing to the complex policy and resource distribution questions the latter option could involve for the courts.

Instead, with an obligation to achieve long-term aims relating to housing, the courts could review whether the measures the State was taking to achieve those aims were a reasonable or proportionate means of doing so. The majority report said that this kind of approach can be equally criticised for shifting the focus away from individual need in terms of whether it is being adequately met by the State. When we wrote the minority report, it was our understanding that there was not necessarily a systemic element to the Article 40 proposal.

I am more than happy if our concerns are wrong, but I would rather that I understood that. We did not understand it the time. It seemed to be an individual approach rather than a systemic one. I am building on the previous contribution. I hope that might be helpful contribution to make.

We do not have a means in Irish law for class actions. Unfortunately, where there are fundamental failures if we want the courts to review the behaviour of the State that often involves individual cases. The history of constitutional law which have determined cases involves people's last names versus the State. I would love if we were here to discuss class actions and the means by which we would fundamentally change the Irish legal system, but it is important to note that when we refer to individual actions, it must be recognised that such actions are part of our system for systemic change and they always have been in Irish law.

Yes, For example, an entire policy could be struck down if there was a fundamentally illegal policy in any area, whether housing or education. If there is a policy that fundamentally interferes with an individual's enumerated rights, that policy may be unconstitutional and can be struck down, causing systemic change. That is a very important aspect we need to consider.

On who would take a case, we built our proposal on an analogue in climate change, where the action was taken by Friends of the Irish Environment. I imagine, for example, that Homes for Good or any number of other organisations in Ireland would be able, under the proposal we have set out, to take the Government to court for failure. It would not necessarily have to fall to an individual. Again, that is explicitly outlined on pages 27 and 28 of our minority report.

Again, I will go back to Dr. Casey on this, if I am not ambushing him. Representative actions in Irish law are very rare and stringent in terms of how a person can take them. They tend to be based around environmental law under the Aarhus Convention.

They tend to be based around environmental law, under the Aarhus Convention. This idea of representative actions is not the most common in Ireland. We do not have a legal system that is built for it. Again, maybe we should be at a justice committee to discuss that. It is a nice idea but not reflective of the common approach to constitutional law. The organisation typically that would take such a case would need to have that particular constitutional right infringed. I am going to defer to my colleague, Dr. Casey, who is much more familiar with constitutional law around this.

On the point Mr. Stanley made earlier where there would be a right under the Constitution, that would also apply in the case of the minority wording. However, with the minority wording the policy would work for everyone and not just resolve an individual situation. That would work in both cases.

Another point I would like to make is that Portugal has a right to housing but it still has a housing crisis. We studied different countries when we were in the depths of the housing report. It is important that people understand how other countries have operated. Some of those countries have a housing crisis. As I said, we have to deal with policies that bring about the change necessary to have the right supply. That is what it is all about, rather than legal solutions.

On Mr. Boyle's point, I agree. They prefer individuals who are directly affected by a policy to take a constitutional action. They take that quite seriously, as Mr. Boyle said. I agree with Mr. O'Flynn entirely. An important part of this is where to put a referendum. An important part of the framing of any amendment would be to set expectations. No one who deals with this issue seriously thinks it is some kind of silver bullet. The real debate is between people who support Article 40A and those who endorsed the minority report or whether you think the constitutional backstop provided by putting in an explicit obligation can in a subset of cases be valuable. Looking at the sweep of our constitutional history and how rights to primary education, particularly for children with special needs, the State's duty to look after children at risk when their parents cannot, and things like that, the courts' role has been very valuable there. We can draw an analogy as to how they might perform a similar function with Article 40A. The real contest is whether that backstop will be valuable. It is not about whether this will solve everything or not. It is just one piece of a larger jigsaw of policy and measures.

I thank Dr. Casey. He saved me the job of having to say that. I am going to conclude the meeting because there are no more contributors. From today's discussion, I am still not clear in my own mind because each has made very valid points. As Dr. Casey said at the end there, I do not think this has been proposed as the be-all and end-all and the solution to the housing crisis. However, it may arm the legislators with some confidence that they could go further with legislation than may have been the case. Our job, as a committee, is to look at this, and having read the reports and having had other meetings on this, report back to the Minister with our views and opinions. The committee will look at reporting back. We are not going to have much time to do a very lengthy report on this but we could accurately reflect the views and opinions expressed today. I am of the view that it is something the committee should try to complete over the next week or two, bearing in mind that the Minister has already indicated to us that he will be bringing together a further group of experts. He has looked to the committee to input into that structure as well.

I am always conscious that when people appear before committees, something always occurs to them later, on their way home on the bus or the next day, that they forgot to say. If anything occurs to the witnesses, please send us on any further views. We had a very well-rounded panel of contributors today from the legal, construction and research areas, from those working in these areas throughout their lives. I thank the witnesses for their help to the committee.