Situating Social Rights: Housing and Distributive Justice - Post TD

AuthorPadraic Kenna
PositionCollege of Business, Public Policy and Law, University of Galway
[2022 ] Irish Judicial Studies Journal Vol 6(3)
Abstract: This article considers the impact of TD on housing rights in Ireland . While Ireland has signed up
to mul tiple housing rights protections in the interna tional human rights context, it has faile d to implement
them. TD ensures no constitutional intervention from the courts in this context. Despite generous Irish State
funded social housing over the past century, access to shelter or housing is not treated as a rights issue.
Author: Professor Padraic Kenna, College of Business, Public Policy and Law, University of Galway.
The TD
case marked a watershed in Irish law in many ways, and its implications for housing
and housing rights still reverbate today. What seemed a simple case of curial oversight of the
provision of services for a young vulnerable person became a touchstone for Irish
constitutional socio-economic rights enforcement. Since the need for such services is
concentrated among those with few resources, or indeed, political power, the last resort role
of c ourts becomes all the more significant . This article begins by providing some insights
into the nature of housing in Ireland, and the nature of international housing rights adopted
by Ireland albeit as a dualist State. It then considers some issues of distributi ve justice in
the modern Irish housing context, where historically the Irish State has heavily and
generously funded socia l housing, leading to a relatively healthy (if unaffordable) housing
system, but where applied human rights have no role.
Housing, for most public commentators, is primarily about buildings. How a nd where we
build them, how much they cost to build and maintain, how we pay for them, who can access
them, and for how long, what purposes can we use them for, and, of course, what is their
value? Actual ly there is a very clea r gender perspective hidden in this approach and it
describes a very male view of housing. Womens’ descriptions and views on housing are quite
different. Here, we see terms l ike home, household, place of care and support. Lorna Fox-
‘O Mahony has described home as a building plus a n x-factor, representing the social,
psychological, and cultural values that a physical structure acquires through use as a home.
It is therefore, not surprising that when we transla te the debate about housing into
constitutional or property law that analogous conceptual divisions emerge. Can we give
someone access to a building or caravan site, or not? Alternately, we might ask what physical
and social supports can the State provide to support and enhance the lives of people without
resources. This is not to say that male judges are blind to the second approach, just that
constitutional and property law is generally framed in this way. Thus, it is not surprising that
arguments about recognising constitutional rights to housing (and support services as in TD)
seem to always come down to questions of buildings, land, money and the power to allocate
TD v Ireland [2001] IESC 101.
Lorna Fox-‘O Mahon y, ‘The Meaning o f Home: A Chimerical Concept o r a Legal Challenge? (2002) 29(4)
Journal of Law and Society 580.

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