Distributing Collective Burdens and Benefits: O'Reilly, TD, and the Housing Crisis

AuthorRachael Walsh
PositionAssociate Professor of Law and Fellow, Trinity College Dublin
Pages63-70
IRISH JUDICIAL STUDIES JOURNAL
[2022 ] Irish Judicial Studies Journal Vol 6(3)
63
DISTRIBUTING COLLECTIVE BURDENS AND
BENEFITS:
O’REILLY, TD
, AND THE HOUSING CRISIS
Abstract: This article considers the underexplored nexus between the debates about housing rights and the
TD deb ate, and the question of the appropriateness of judicial intervention in the social and economic arena.
It contends that the property rights decisions that make response s to the housing crisis problematic are in fact
inconsiste nt with the division of labour between courts and elected branches of government suggested in TD,
and explores possible resolutions to this inconsistency.
Author: Dr Rachael Walsh, Associate Professor of Law and Fellow, Trinity College Dublin
Introduction
Amongst economic, social, and cultural rights, housing is currently in the spotlight in Ireland.
The Housing Commission is, at the time of writing, concluding a public consultation on a
referendum on housing, with submissions likely to touch upon both the case for, and the
appropriate content of, any right to housing that might be proposed for addition to the
Constitution.
1
This follows an academic conference held by the Commission on the case for
a constitutional amendment on housing in May 2022.
2
The Commission was established by
the current Government in part in fulfilment of its commitment to hold a referendum on a
right to housing.
3
In the legal context, housing issues have been increasingly
‘constitutionalised’ through an expanded interpretation of the function of Article 40.5 of the
Constitutions protection for the ‘inviolability of the dwelling’.
4
However, the connection
between the current debate on a right to housing and the core social rights debates in Irish
constitutional law centred around O’Reilly v Minister for Justice,
5
TD v Minister for Education,
6
and
related Supreme Court decisions,
7
has been underexplored. Housing has been subtly (and at
times perhaps subconsciously) treated in political and legal debate as somehow different to
other social rights.
In reflecting on TD’s 21st anniversary, this short article aims to reconnect the current housing
rights debate with the legal debate centred around TD concerning the appropriateness of
judicially enforceable economic and social rights within the framework for the separation of
powers established by the Irish Constitution. In particular, it explores what the division of
labour between the courts and the elected branches of government that was articulated so
1
For details of the public consultation, see <h ttps://www. gov.ie/en/press-release/daa14-housing -
commission-launches-public-consultation -on-a-referendum-on-housin g-in-ireland/ > Accessed 5 Septembe r
2022.
2
For details of t hat conference, including the papers and presentations delivered by expert speakers, see
<https://www .gov.ie/en/publication /127ea-conference-on-a-referendum-on-housing-in -ireland/#papers-
and-presentations> Accessed 5 September 2022).
3
See Programme fo r Govern ment: Our Shared Future <h ttps:// www.go v.ie/en/publication/7e05d -programme-for-
government-our-shared-future/> Accessed 5 September 2022, 120-121.
4
See in particular the Supreme Court’s decision in Clare County Coun cil v M cDonagh [ 2022] IESC 2 and the
discussion of the development of Article 40.5 in Gerard Hogan and others, Kelly: The Irish Constitution (5th ed,
Bloomsbury 2018), 2019-2057.
5
[1989] ILRM 181.
6
[2001] 4 IR 259.
7
Various Supreme Court decisions adopt th e approach taken in O’Re illy, perhaps most notably Sinn ott v Minister
for Education [2001] 2 IR 545. See also S O’C v Minis ter fo r Education [2007] IEHC 170, O’ D onnell v South Dublin
County Co uncil [2007] IEHC 204, and O’Do noghue v AIB M ortgage Banks [2017] IEHC 344.

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