Constitutional Right to Housing – An Unanswered Call

Right to Housing Amid a Housing Crisis

Ireland’s decade-long housing crisis has prompted calls to adopt a constitutional right to housing. This stemmed, at least in part, from a perception that constitutional private property rights inhibited the Oireachtas from taking far-reaching action to alleviate the housing crisis. It is understandable why this view took hold: successive government Ministers and T.D.s have cited the protection of private property rights to explain why various measures to tackle the housing crisis could not be adopted. Yet the drastic measures adopted during the Covid-19 pandemic, including a rent freeze and a temporary eviction ban, demonstrated that the current constitutional framework allows significant flexibility to restrict property rights in the public interest.

Private Property Rights in the Constitution

Article 40.3 and Article 43 of the Constitution protect private property rights. Article 40.3.2° protects the personal rights of the citizen against “unjust attack”, which extends to the protection of private property. Article 43 provides that the exercise of property rights should be regulated “by the principles of social justice” and should be reconciled with “the exigencies of the common good.” A few key principles emerge from the caselaw (which has been analysed in detail elsewhere).

First, measures restricting property rights must comply with the proportionality test. They must meet a clear objective, and rationally linked to the means chosen to achieve that objective. The courts have been particularly critical of measures based on outdated assessments or where a sector of the community, particularly a vulnerable group, has been singled out to bear financial burden for society at large. The best way of reconciling this strand of caselaw is, as Rachael Walsh has suggested, that “targeted burdens [are not permitted] except where those burdens are closely linked to relevant profit-making activities of the burdened group(s).” In other words, the courts may countenance legislation compelling property owners developing their land to sell a portion to local authorities for affordable housing, but look less favourably on efforts to extinguish the entitlement to recover costs associated with hospital and nursing home care (which had been charged unlawfully in the first place).

Second, restrictions on private property rights do not automatically constitute “unjust attack”. An “unjust attack” on private property rights usually arises where the measures are irrational or unreasonable, discriminatory, or lack fair procedures. The courts have tended to view restrictions on property usage more benignly than compulsory acquisition or absolute deprivation of property, which often carries a requirement for fair procedures and some form of compensation.

Finally, caselaw indicates that the courts are conscious that the state should be able to take far-reaching action during times of crisis to protect the public interest. During the financial crisis, considerable incursions were made on private property rights, including emergency pay cuts introduced by the FEMPI Act 2013, and the imposition of pension levies. None of the challenges to austerity measures, including on the basis of private property rights, were successful.

Constitutional Pattern

Yet in the past decade, there have been growing arguments in favour of a constitutional right to housing to ‘balance’ out the protection of private property rights. It is clear why demand for constitutional change arose: as previously outlined, between 2009 and 2019, at least thirteen Private Members’ Bills designed to tackle the housing crisis were rejected by the government of the day, citing constitutional concerns. Of course, the government of the day regularly opposes and votes down opposition bills as a matter of course, and some of these bills certainly did raise points of constitutional concern. But the tone of political debate around this period helped to give rise to a belief that it would not be possible to take far-reaching action to address the housing crisis unless the Constitution was amended.

Restrictions on Private Property Rights During Covid-19 Pandemic

That narrative was complicated by the emergence of the Covid-19 pandemic. In the face of an unprecedented public health emergency, the Oireachtas passed legislation freezing rents and introduced a moratorium on evictions, which was later extended, albeit in narrower form.

This demonstrated that the Oireachtas could take drastic action to restrict private property rights in the public interest, even though there had been no change to the existing constitutional framework: there had been no new judgments on constitutional private property rights, and of course, there had been no constitutional referendum on housing. This demonstrated that the constitutional constraints on the Oireachtas were not as rigid as they might previously have been presented.

Shift in Political Rhetoric?

In the wake of the pandemic, political discourse on the housing crisis seems to have shifted. In debating proposals to address the housing crisis, Government Ministers and TDs have tended to focus on the merits of opposition proposals to tackle the housing crisis, rather than arguing they are flatly unconstitutional. For example, in defending the decision to allow the temporary eviction ban to lapse in March 2023, the-then Taoiseach Leo Varadkar acknowledged that there was scope to extend the ban, but the government made a political decision not to do so.

Elsewhere, while the majority and minority reports of the Housing Commission were at odds on the merits of adopting a constitutional right to housing, both agreed that the existing constitutional framework did not pose a barrier to the Oireachtas taking action to address the housing crisis. The majority, however, considered that a constitutional amendment would correct a “pervasive perception, particularly among government actors and legislators” that constitutional barriers existed to combating the crisis.

Conclusion

Yet even without a constitutional referendum, the belief that property rights pose a barrier to tackling the housing crisis seems to have lost traction. Political actors appear to be slower to invoke constitutional private property rights in opposing measures related to housing. This raises questions about how deeply held that perception truly was, and undermines the argument that a constitutional amendment was required to correct it.

Both the public and political momentum behind a constitutional amendment on housing seems to have abated. The resounding defeat of the family and care referendums in March 2024 has perhaps dampened any immediate political enthusiasm for further constitutional change. A referendum on housing was not included in the 2025 Programme for Government, nor has any action been taking to implement the recommendations of the majority report of the Housing Commission.

This presents an opportunity to propose and consider meaningful legislative solutions to the housing crisis, as well as strengthening the statutory entitlements of renters and those navigating the housing system, short of embarking on a constitutional referendum.

---

The views expressed above are the author’s own and do not necessarily reflect the views of The Bar of Ireland.

---