Enshrining right to housing could give lawyers field day
In many referendums held in Ireland in recent times, turnout didn’t top half of the electorate. In some cases, 70pc did not bother casting ballots
AFTER the State’s current Constitution came into effect in 1937, just one referendum to amend it was held in the following three decades.
Since then, things have changed. More and more referendums are being held. That is to adapt to a rapidly changing society, economy, continent and world.
Over the past decade alone, 10 amendments to the State’s foundational legal document have been put to a vote. More than 10 further changes are currently being mooted by the Government and opposition parties.
One of the changes being proposed is that a right to a home be enshrined in the Constitution in order to deal with the housing crisis.
Before considering that idea, it is worth reflecting on how we change the Constitution in the first place.
Ireland is very unusual among democracies when it comes to making constitutional amendments. Among our European peers and around the world, the vast majority of democratic states do not use referendums. Instead, when they want to change their constitutions they use supermajorities in their national assemblies, with the backing of two thirds of parliamentarians a common threshold to get amendments passed.
Some people in Ireland believe that we are more democratic than other countries because we use referendums. A more common view internationally is quite the opposite. Referendums elsewhere are often considered a tool of demagogues. Most infamously, Adolf Hitler used them to cement his grip on power in Germany in the 1930s.
Many students of democracy also believe that they are blunt instruments, obscuring issues rather than illuminating them. Last year’s Brexit vote in the UK was a classic example.
Referendums often cause and/or deepen divisions within societies. The Eighth Amendment to our Constitution, the referendum on Scottish independence and Sunday’s referendum on Catalan independence are just some plebiscites which have generated a great deal of bitterness and recrimination.
Another downside of constitutional referendums is how they drain political energies that could be channelled more productively elsewhere. If they were held in Ireland as infrequently as in the 1940s, 50s and 60s, this would not be an issue. But with an accelerating rate of constitutional amendment, the political agenda looks set to be cluttered by them for the foreseeable future. With a bias towards inertia already built into our political system, and the fragmentation of the vote more recently leading to weaker governments, there is real cause to fear for the future of effective governance in Ireland.
If amendments on big issues generate lots of distracting heat, votes on small ones have a different set of downsides. In many of the referendums held in Ireland in recent decades, turnout didn’t top half of the electorate. In some cases, more than 70pc of voters did not bother casting their ballots.
Issues on which citizens are likely to have to vote in the not too distant future include a new international court to deal with patents. ‘Intellectual property’, as lawyers call it, is not an issue that is of interest to a lot of people. Yet the Government’s legal advice is that the Constitution will have to change if Ireland is to sign up.
Given the strict rules on equality of representation for both sides in all referendum campaigns, having a vote on patents will be an invitation to cranks and attentionseekers to oppose the idea in the hope of making a national name for themselves.
If turnout is low and those who vote use the patent court referendum to give the government of the day a kicking, it is conceivable that just 15pc of the electorate could scupper it. Ireland would then have locked itself out of the international legal order which protects inventors and innovators. Ask the tens of thousands of people who work in technology and pharmaceutical companies how that would affect their businesses.
Representative democracy has won out over direct democracy in most places across the world. It is far from perfect. But it offers the calmest, most deliberative and least divisive way of addressing the issues that societies face.
With a fragmented Dáil and weak Government – both of which increasingly look more permanent than transitory features of Irish politics – and an accelerating pace of change requiring ever more constitutional change, the referendum we really need is one on allowing a super-majority in the Oireachtas to change the Constitution. That is what most democracies do. We should do the same.
Now let’s look briefly at one of the many mooted referendums: the enshrining of a right to housing in the Constitution.
There are two kinds of rights. The first kind are rights that citizens can enjoy without an effect on anyone else. Freedom of worship is a case in point. The second can only be enjoyed at the expense of someone else.
In an overwhelming majority of countries, only the first kind of rights are covered in constitutions. That is also the case with Bunreacht na hÉireann.
A constitutional right to housing is an example of the second kind of right. Putting such a right into effect would mean a cost to some citizens and a benefit to others.
In all politics, redistribution is a central issue of political debate. There is no right or wrong level and societies change their collective views on how much of it there should be over time.
Locking a right to housing into the Constitution would force all future governments to prioritise providing subsidised homes over other health, education and welfare programmes, otherwise lawyers would have a field day taking cases against the State. It should be for governments and legislators to decide on housing policy, not lawyers and judges.