Situating Social Rights: Housing and Distributive Justice - Post TD

• Author: Padraic Kenna
• Position: College of Business, Public Policy and Law, University of Galway
• Pages: 55-62

IRISH JUDICIAL STUDIES JOURNAL

[2022 ] Irish Judicial Studies Journal Vol 6(3)

55

SITUATING SOCIAL RIGHTS: HOUSING AND

DISTRIBUTIVE JUSTICE – POST TD

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.

Introduction

The TD

1

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

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.

2

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

1

TD v Ireland [2001] IESC 101.

2

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.