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Pauline O’Reilly is the Green Party spokesperson on Education and Higher Education and Senator and the cathaoirleach of the Green Party.
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I heard Mark O’Halloran on an old episode the Mario Rosenstock Podcast recently, he talked very articulately about how the housing crisis affects him, how he as a man in his 50s has to ask someone’s permission to get a pet cat. I totally sympathise with his position, sometimes it’s small things like that which capture so well the dysfunction created by the housing crisis.
I’m sure some left-wing party is writing up a bill as I speak called something like the Tenant’s Right to Pets and Animal Companionship Act 2023. In fact, Sinn Féin is actually proposing a bill to make it illegal to ask for sex in return for a tenancy. That sounds horrific, I’m not convinced how widespread a problem it is, but if it even happens once, that’s obviously unacceptable.
But consider this – do we have a problem of supermarket workers demanding sex in return for groceries? Is that even conceivable? In Ireland, it’s not, but in recent years, there have been scandals of aid workers in both Somalia and Haiti, in the midst of famine, demanding sex for food. The conclusion is obvious. That can only happen where people are so desperate – be it for food or housing – where people are so desperate that they are vulnerable to sexual exploitation.
So it’s particularly insane that you get some people, particularly in the left, saying things like ‘we don’t have a housing crisis, we have a renting crisis’.
We do. We have a housing crisis.
And we get people, again primarily on the left, saying that ‘We can’t build our way out of the housing crisis’. Yes we can. That’s exactly what we need to do. We need to build. We need to build suitable homes in suitable locations, and we need to build them in vast numbers.
If you really need it to be proven, you can look at the figures. Ireland has by far the lowest number of dwellings per 1000 people in Western Europe, those are figures from the OECD.
And there is good reason to think that even those figures miss just how bad the situation in Ireland is. Those figures from the OECD are from 2020, but they only had access to Irish figures up to 2019. Now, to get the number of dwellings per capita, you obviously divide the number dwellings by the number of people.
But Ireland is the only Western European country with a sharply increasing population; so those figures from four years ago understate the current population.
And as per the last two censuses, Ireland has hundreds of thousands of dwellings that are being left vacant for various reasons, so those figures significantly overstate the number of dwellings available to live in. Both of those factors, more people and fewer dwellings indicate that the OECD figure, bad as it is, significantly understates the problem in Ireland.
Another factor is that other Western European countries tend to have very settled, older, stable populations; Ireland by contrast is young, has a high birth rate, and has a high rate of both inward and outward migration, though the net figure is strongly inward, and high internal migration, and for a variety of reasons this means that there is more demand for housing. This is a bit complicated, but basically what happens is that if Johnny in Limerick leaves school and goes to get a job in Dublin, and Mary in Dublin does the same to Limerick, they don’t really each want to stay in the bedroom in the parents’ house that the other has left empty, so internal migration, which we have a lot of, that increases the need for accommodation, even before you start talking about an increasing population.
So, Ireland is at the bottom of the OECD league table for the number of houses per capita, there is strong reason to believe that the true figure is much worse than the OECD figures, and unique features about Ireland mean that we need more, not less, housing per capita than our neighbours.
This is not just theoretical. We have the OECD figures, but we also have just the raw number of dwelling completions from the CSO, that’s basically the number of houses and flats built – there is a sharp uptick in 2022, it’s not clear if that will be maintained in 2023, but in each of 2019, 2020 and 2021 there were about 21,000 completions, and last year there were just under 30,000 completions.
But unpublished research by the Housing Commission reported in the Irish Times says Ireland may need up to 62,000 homes built every year until 2050 to meet demand. So since 2019, there were 92,000 homes built and out of a total demand for 248,000 – so that means that 156,000 families are either living in substandard accommodation, shacking up with parents, homeless, or emigrating because there weren’t enough homes being built for them.
That’s a lot of figures to take in, so to summarise it, over the past four years, 92,000 new homes built; 156,000 more were needed but not built, and that’s just in the last four years, we already had a very serious housing shortage in 2019.
We are building far less than half of what we need.
So what solution are our politicians working on? Well, the government’s housing commission are working on a solution; that is having a referendum to put the right to housing into the constitution. It was reported recently that the work on this referendum is being held up by arguments between membership of the commission. But I’m sure they’ll get round to it. Eventually.
But in principle, enshrining the right to housing into the constitution, this is not a bad idea. It’s not. It’s an absolutely terrible idea. It sounds great, I know, it’s exactly the sort of awful idea that sounds great until you actually think about it. There is a lobby group, made up of various housing NGOs, that are pushing to have the wording create a broad and enforceable right to housing included in the constitution.
I’m sure that loads of you listening out there are among the hundreds of thousands whose life is ticking by, still living with their parents, who have visions of taking a court case on the strength of this, and they imagine some beetroot-faced judge raising himself up on his knuckles and ordering that this injustice against a decent person be rectified by them begin given a house by … the minister? the government? By someone, the fantasy gets blurry after that point.
That’s just not the way the courts work. The function of the courts is to adjudicate when people believe there is a conflict of rights. A conflict between society and the accused in a criminal trial, a conflict between two citizens in a civil case; the court assess the facts and the law, and comes down on one side or another.
The purpose of the law, and ultimately the constitution, is to give the courts instructions on how to make that decision. Some cases are clear-cut but those ones don’t typically end up in court. To understand just how bad an idea that this is, it’s helpful to look at a previous referendum that was inspired by an active and well-supported lobby group.
The so-called right-to-life referendum was passed by a two-to-one majority in 1983. Its one sentence said “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The lobbying came about because mostly religious groups saw that abortion had been legalised in the US by using a general privacy principle in the constitution to stop state interference in abortion, and they were afraid the same could happen in Ireland. The Attorney General at the time, Peter Sutherland, proposed a wording that said nothing in this constitution shall invalidate any law against abortion. That would have removed the risk of a similar ruling in Ireland.
But religious influence in politics was in the ascendancy at the time, and they wanted to go further, not just to have the constitution not protect the right to abortion, but to have it outlaw abortion, and do so in extravagant, flowery language, talking about vindicating rights, which fitted in well with their religious outlook. The amendment didn’t just say that you don’t have a right to abortion, it said that the foetus has the right for the government to do everything to prevent you from having an abortion. And then they threw in that, of course, the mother has an equal right to life; gee, thanks. That was their downfall.
It wasn’t long before their hubris collided with reality. In 1992 child, a young girl had been raped and was pregnant. Her parents took her to England to have an abortion, and they made enquiries about using a DNA sample as evidence against the rapist. Then the full effect of the eighth amendment swung in. Remember, it didn’t just prevent the courts from creating a right to abortion, it imposed a positive duty on the government to, as it said, vindicate the right to life of the unborn. The controversial new Attorney General Harry Whelehan sought, and was granted, a High Court injunction basically ordering her and her parents back to Ireland before the abortion could be completed.
Predictably there was uproar; there was an avalanche of public opinion against this order in Ireland, and huge, mostly hostile, media interest internationally. The case was appealed to the Supreme Court, and I happen to know that – this is not a huge secret, lobbying is not supposed to happen in Supreme Court cases, and maybe it didn’t work, but I am aware that people closely identified to conservative elements in the Catholic Church lobbied ferociously to find some way to allow the girl to have an abortion. They obviously calculated that, rightly I think, that the longer the case went on, the more it damaged their position.
The Supreme Court, which hears constitutional appeals from High Court cases, had a bit of a problem if they wanted to reverse the ruling; it was this: the High Court ruling was well-grounded in the constitution. The eighth amendment didn’t just say that there was no right abortion, it said that the state was bound to do everything it could to prevent abortion, regardless of the fact that a big section of public opinion was outraged by the effect of that, and even supporters of the eighth amendment wanted to make the case go away by any means possible.
They searched hard. I have to give them that, the Supreme Court really had to search for it, but in the end, they found an out. Remember the amendment said the State guarantees the right to life of the unborn, with due regard to the equal right to life of the mother. And the young girl had said that the situation had left her suicidal, so her life was threatened by the pregnancy, and so that equal right to life of hers gave her, the young girl, a right to have an abortion.
And not just her. I don’t dispute her sincerity, but it gave every woman who could make the unfalsifiable claim that continuing a pregnancy made them suicidal, all of them now had a right to have an abortion.
A few years back we had Niamh Uí Bhriain on the podcast, Niamh Uí Bhriain previously of Youth Defence, now of the Life Institute, her mother was Úna Bean Nic Mhathúna of wife-swapping sodomites fame, who was a major campaigner in favour of the eighth amendment. And Niamh Uí Bhriain said that ruling was perverse … and I think she is right. But the irony of it was that the situation was created by the pro-life campaign’s insistence on having that extravagant flowery, ideological language talking about vindicating rights included in the constitution, when they could have agreed to a much simpler and clearer wording.
Such a wording would have left politicians to tweak the law so as not to create cases like this, or the tragic death of Savita Halappanavar, the pro-life absolutists would not have liked that, but in the end the outcome is that those cases, and the way they radicalised public opinion, has left Ireland with an abortion regime that is as liberal as most European countries, more so than many American states.
Their success in passing such an all-encompassing amendment led directly to the situation that they most wanted to prevent.
And all of that detour is to illustrate one simple point: don’t put anything into law, and especially don’t put anything into the constitution unless its effect is totally clear, and in particular, don’t put anything into the constitution that is aspirational or guarantees to vindicate rights without saying exactly how that vindicating is going to be done.
The Home for Good campaign is lobbying to have a constitutional amendment to add the following clause:
The State recognises, and shall vindicate, the right of all persons to have access to adequate housing.
It sounds great. It’s a terrible idea. Why? Because what effect will this have? I can tell you one effect it won’t have. That amendment will not build one extra house, it will not lay a single brick on top of another.
One clear danger of this is that it doesn’t say all citizens, it doesn’t even say all residents of the state, it says all persons. So, say, a pensioner who is emigrated 40 years ago and is coming back to Ireland to retire, they have that right just as much as anyone who lives in Ireland.
But that’s not my main objection. There is no way to word this amendment that doesn’t bring the danger of unintended consequences.
But what could happen? Well in Ireland, we have planning regulations. We have zoning. We have building codes. We have fire safety standards. And these aren’t theoretical pie-in-the-sky for law students to write philosophical PhDs about.
These are real, enforceable rules, and they mostly do get enforced, and they are enforced by people who are very professional, very careful, and very practical and pragmatic about making sure the desired effect is achieved. We do have corruption in the system, to my knowledge we have some cases of serious corruption, but that corruption is exclusively on the side of those regulations and codes not being enforced when they should.
There are some countries where codes and regulations like this are weaponised by corrupt officials, who demand bribes in order to approve things that they have no business blocking, but that does not happen in Ireland to any serious extent. If your planning permission request meets the zoning and building requirements, then you will be granted that request, and you won’t have to bribe anyone, and that’s not something that every country can boast.
The problems in Ireland are of people being paid off to grant permission where they should not.
I know that there people out there, people who get a lot of media attention who talk about zoning and planning permission as if they were somehow the cause of the housing crisis. That’s nonsense. They’re not. There are 70,000 unused planning permissions in the country. That’s sites just lying idle, with planning granted, because the owner makes more money that way than by developing them.
We have hundreds of thousands of houses worth of zoned land just around Dublin, land zoned for housing, with nobody building anything on it.
But despite those figures, we have regular commentators showing up in the media trying to tag their hobby horse onto the coverage of the housing crisis. These are basically rich people who want to make more money, and they are trying to exploit the misery of people searching for a home to get rid of the regulations that prevent them from getting even richer. That’s what they are willing to do.
So you can bet your posterior that if there crops up another opportunity for them to get rid of regulations that restrain their wealth, they will exploit it to the maximum. And it won’t be a billionaire pulling up outside the Four Courts in a Bently. No. They will make sure that it’s a media-friendly litigant, with a hard case that evokes sympathy. Sympathy, and a high-powered legal team, paid for by the billionaire.
And they could argue that, for example, all this planning law means that they can’t build a house on their parents’ family farm, some nonsense about safety of an exit onto a main road, something about imposing the cost of providing services to one-off houses on the rest of society, something about preserving the beauty of the countryside.
And that litigant, and their high-powered legal team will say, yes the government is making laws to protect the common good but none of that other stuff is in the constitution. Our client has no other home and their right to adequate housing is written into the constitution. And, at a stroke, that could blow a hole through our planning laws.
Or our building regulations. Fire safety? Shur we grew up long before these regulations and we all lived to tell the tale. Survivorship bias? What’s that? All we know is that this development would not be economic if we had to comply with all these rules, and none of them are in the constitution, but our purchasers have a right to housing, and that is written into the constitution.
And zoning? What’s wrong with building the housing estate there? If they need a school, I’m sure it will be built … at some stage. It’s not my problem that they all have to drive out the same boreen at half seven in the morning. What’s this car dependency anyway? That’s not in the constitution. But the right to housing is.
The fact is that this referendum, and the campaign around it, is very likely to soak up all the political will, and the NGO activism, behind the demand for reform in our society and it will not lay one brick on another.
