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Dáil
‹ Leaders' Questions

Constitutional reform and property rights

Summary

Róisín Shortall questioned the Government's planned referendum programme and criticised the omission of Article 43 reform on property rights in housing. The Taoiseach said the timetable came from the Citizens' Assembly, noted a housing-related proposal for further consideration, and argued that property rights are already limited by the public interest.

A Deputy

That is starting now, is it?

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We learned from media reports this morning that the Taoiseach and his Government are considering holding eight different referenda within the next two years. These range from important matters such as repealing the eighth amendment to changing the law on blasphemy to matters such as-----

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Getting up early in the morning.

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-----lowering the voting age to 16. There is one glaringly obvious omission from that list, namely, a desperately-needed commitment to amend the Constitution in respect of Article 43. Article 43, as the Taoiseach knows, acknowledges a natural right to private property above any human-made law. It goes on to state that this right must be regulated by the principles of social justice and that, on occasion, such rights need to be delimited by the exigencies of the common good. Notwithstanding these safeguards, regrettably, the superior courts have consistently taken the narrowest view of Article 43 when the exercise of property rights is deemed to be detrimental to the common good. In the main, the courts have found in favour of the upholding of private property rights or else have ruled that the State must pay prohibitive levels of compensation. The impact of Article 43 has been most profound and most detrimental in respect of the provision of housing. Successive Ministers with responsibility for housing have claimed that Article 43 significantly restricts the capacity of government to introduce key measures to deal with the housing crisis. I refer, for example, to the imposition of a meaningful vacant site levy to address the pressing issue of land-hoarding and not just the meagre little levy that is promised to kick in at some point and which is far lower than the inflation rate of vacant land; measures to tackle the large number of vacant properties; measures to prevent the eviction of families in cases in which a landlord is selling a property; and attempts to implement compulsory purchase orders in respect of unused housing landbanks. While there are major problems regarding housing and housing land, leading to a crisis of affordability and supply, it seems there is no appetite on the part of the Government to remove the constitutional obstacle that is Article 43. How on earth is the amending of Article 43 of the Constitution not on the Taoiseach's priority list for a referendum? Without amending Article 43, how can we achieve social justice and serve the common good in respect of housing? Will the Taoiseach now commit to an early referendum on Article 43 in order that the housing crisis can be tackled comprehensively and effectively and we get no more excuses from Ministers?

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Leo Varadkar The Taoiseach Fine Gael

The priority list agreed by Government today creates indicative timelines for future referendums. The referendums very much flow from the Citizens' Assembly. The Citizens' Assembly did make a recommendation regarding economic, social and cultural rights, and I understand that this, as well as a proposal on housing, has been referred for further consideration to the Department of Finance. The proposal - at least, the indicative proposal - is to have a stand-alone referendum on the eighth amendment in May or June next year. That will very much follow on from the recommendations of the all-party committee that is considering the matter and which has a deadline to report by Christmas. Further referendums are to be held concurrent with the presidential election, whether or not the position is contested, in winter of 2018, dealing with women in the home, blasphemy and the possibility of plebiscites on directly elected mayors. Then, in summer 2019, concurrent with the local and European elections, referendums are to be held to extend the franchise to citizens abroad to vote in presidential elections and to liberalise the divorce laws on foot of Deputy Madigan's Bill.

I dislike the term "property rights". It implies that properties have rights. Properties do not have rights; individuals have rights. If one owns a farm, one has a certain right to deal with that farm, manage it and do what one likes with it. If one has a business, one has certain rights over that business.

If one has a home, one has a right to live in it. Of course, if one has an investment property and it is one's pension, one has certain rights to it too. When we talk about diluting or removing property rights, we should not make the mistake of thinking we are removing rights from properties; we are removing rights from people. I would like to understand better from those who advocate diluting those rights exactly which individual rights they want to take away from which individual people - specifically what and why.

Nonetheless, the protection of property rights in the Constitution can actually be over-egged. We have a vacant site levy. We brought that in notwithstanding property rights, and it is now in place. We have brought in the rent pressure zones, putting caps on rent increases. Again, some people said that was a violation of property rights but it turned out it was not. It is also the case that local authorities can use CPOs to CPO vacant properties and, in fact, Louth County Council has done that on dozens of occasions. People often hold up property rights as an excuse for things not being done but we have shown, on a number of occasions, that we can do those things without breaching property rights.

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It seems the Taoiseach is only interested in the rights of people who have property, not the rights of other people who are on the housing waiting lists, who are homeless and so on. One would have to ask how many homeless does it take for the Taoiseach to recognise the obstacle that is Article 43, and it is most profound, obviously, in regard to housing. The Taoiseach clearly is not listening to the points that are made very strongly by the current Minister for Housing, Planning and Local Government and previous Ministers for housing in respect of the obstacle Article 43 has put in their way. In addition to the whole area of housing, Article 43 has been a long-standing impediment to fair and balanced legislation in many different areas. For example, we know that, in 1996, the Supreme Court ruled that the Employment Equality Bill was unconstitutional because it put too much of a cost burden on employers. We know that the risk of unconstitutionality was also cited as the reason that the last Government reneged on its promise to abolish upward-only rent reviews. We know that, in this Government, the Minister, Deputy Naughten, has indicated that Article 43 is an impediment to legislating to address the over-concentration of media ownership in this country. For all of these reasons, but particularly in regard to the housing crisis, I ask the Taoiseach to reconsider his priorities and commit to a referendum to amend Article 43 of the Constitution.

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Leo Varadkar The Taoiseach Fine Gael

I think there is a difference between not listening and not agreeing. I am listening, although that is not necessarily the same thing as agreeing. As I have already said, we have, on a number of occasions, considered the balance of property rights and the public interest. Property rights in Ireland are not exclusive; they are not without limitation and are limited by the public interest. We have used that public interest test to bring in rent caps, which have kept rents down in large parts of the country. CPOs are used regularly to CPO land for everything from housing to roads, and we have also brought in the vacant sites levy. Certainly, if the Deputy has a specific proposed wording that she wants introduced into the Constitution, as this Government does not have a majority in the Dáil, it is absolutely open to her to bring that proposal to the floor and to have a vote on it in this House.

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