I Can't Get No Satisfaction: An Analysis of the Influence of the European Convention on Human Rights on the Repossession of Public Housing in Ireland
| Author | Caroline Carney, Lorna Nic Lochlainn, Siobhfin O'Donoghue, Tom Power |
| Position | Senior Freshman LLB Candidate, Trinity College Dublin; BA, Senior Sophister LLB Candidate, Trinity College Dublin; Senior Freshman LLB Candidate, Trinity College Dublin; Senior Freshman LLB (Ling Germ) Candidate Trinity College Dublin. This venture was supported by the Trinity Free Legal Advice Centre. The authors wish to thank Prof Gerry Whyte... |
| Pages | 55-70 |
I
CAN'T
GET
No
SATISFACTION:
AN
ANALYSIS
OF THE
INFLUENCE
OF
THE
ON
THE
REPOSSESSION
OF
PUBLIC HOUSING
IN
IRELAND
CAROLINE
CARNEY,
LORNA
Nic
LOCHLAINN,
SIOBHAN
O'DONOGHUE,
TOM
POWER*
Introduction
Irish
public
housing
case
law
has
undergone
a
significant evolution
in
a
series
of
recent
judgments
concerning
the
repossession
of
local
authority
dwellings.
The
repossession
of
such
dwellings
is
governed
by
s.62
of
the
Housing
Act,
1966
and
this
provision
has
been
the
subject
of
a
number
of
unsuccessful
challenges
rooted
in
the
Constitution. However,
since
the
transposition
of
the
(ECHR)
into
domestic
law in
2003,
tenants
have
increasingly sought
to
invoke
Convention provisions
to
halt
repossession
and
vindicate
their
rights.
Section
62
provides
that
on compliance
by
a
housing
authority
with
a
number
of
perfunctory
criteria,
a
District
Court
judge
is
obliged
to issue
a
warrant
for
repossession
of
a
dwelling
owned
by
said
authority.
These
criteria
include
the
requirement
that
the
tenancy
be
terminated,
1
that the
occupiers
neglect
or
refuse
to
vacate
the
premises,
2
and
that
notice
of
an
intention
to
apply
for
repossession
be
given.
3
Once
these
criteria
have
been
"duly"
met,
the
local
authority
is
free
to
make
an
application
to
the
District
Court
to
recover
the
property.
The
District
Court
judge,
if
satisfied
that
these
criteria
have
been
adhered
to,
must
issue
the
warrant
sought
without
*
Senior
Freshman
LLB
Candidate, Trinity
College
Dublin; BA,
Senior
Sophister
LLB
Candidate, Trinity
College
Dublin;
Senior
Freshman
LLB
Candidate,
Trinity College
Dublin;
Senior
Freshman
LLB
(Ling
Germ)
Candidate Trinity
College
Dublin.
This venture
was
supported
by
the
Trinity
Free Legal
Advice
Centre.
The
authors
wish
to
thank
Prof
Gerry
Whyte and Mr Des
Ryan
for
their
support and
assistance
in
relation
to
this
article.
1
Housing Act,
1966,
s.62(1)(a).
2
Housing Act,
1966,
s.62(1)(b).
3
Housing Act,
1966,
s.62(1)(c).
©
2010
Caroline Carney,
Loma
Nic
Lochlainn,
Siobhdin
O'Donoghue,
Tom
Power
and
Dublin
University
Law
Society
Trinity
College
Law
Review
4
engaging
in
any
further
review
of
the
circumstances
of
the
case.
In the
course
of
this
article,
Irish
jurisprudence
pertaining
to
s.62
and
the
trajectory which
it
has
followed
will
be
considered
in
detail.
The
article
will
begin
by
examining
early
constitutional
challenges
to
s.62
and
the
Irish
courts'
reluctance
to
strike
down
the
provision
as
being
repugnant
to
the
Constitution. It
will
proceed
to
analyse challenges
mounted
on
the
basis
of
Article
8
of
the
Convention,
which
deals
with
the
right
to
respect
for
private
life
and
the home,
as
well
as
Article
6,
which
guarantees
due
process.
Finally,
it
will
address
Article
13
which
ensures
an
effective
remedy
in
the
event
of
a
breach
of
Convention
rights.
The
argument
will
be
advanced
throughout
that
although
the
courts
have
recognised
the
incompatibility
of
s.62
with
certain Articles
of
the
Convention,
the
remedies afforded
have failed
to
respond
adequately
to
the needs
of
tenants
in
danger
of
eviction.
Constitutional
Challenges
to
Section
62
of
the
Housing
Act,
1966
The
coming
into force
of
the
2003
has
seen
a
marked
diminution
in
the
number
of
constitutional
challenges
to
s.62.
Past
constitutional
challenges
have
been
largely
unproductive,
with
the courts
holding
unequivocally
that
a
District
Court
judge
does
not
have
the
jurisdiction
to
evaluate
orders
made
under
s.62
on
their
merits,
but
is
confined
to
ensuring
that
only
the
formal
and
procedural
requirements
outlined
in
s.62
have
been complied
with.
5
In
The
State
(Kathleen
Litzouw)
v
Dublin
Corporation,
6
for
example,
Gannon
J
dismissed
the
applicant's
claim
that
she
was
not
given
an
opportunity
to
explain
the
alleged breaches
of
her tenancy
conditions
in
the
District
Court,
stating
resolutely
that
the
occupiers
of
public
housing
"...do
not
have the statutory
protections
involving investigation
of
'merits'
afforded by the
Landlord
and
Tenant
Acts
and
the
Rent
Restrictions
Acts."
7
Since
the
has been
incorporated
"subject
to
the
Constitution,"
8
however,
it
is
crucial
that the
failure
of
constitutional
challenges
to
s.62
be
analysed.
It
must
be
4
Housing Act,
1966,
s.62(3).
5
See
The
State
(O'Rourke)
v
Kelly
58;
Dublin
Corporation
v
Hamilton
486 and
Byrne
v
Scally
[2000]
JEHC
72.
6
The
State
(Kathleen
Litzouw)
v
Dublin
Corporation
273.
7
273,
at
277.
8
describes
itself
as
"An Act
to
Enable
Further Effect
to
be
Given,
Subject
to
the
Constitution,
to
Certain
Provisions
of
the
Convention
for the
Protection
of
Human
Rights
and
Fundamental
Freedoms..."
(emphasis added).
[Vol. 13
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