The vindication of property rights

IN recent High Court hearings related to Apollo House, Mr Justice Paul Gilligan correctly stated that it was not the function of the courts to become involved in the provision of suitable accommodation for homeless people. Most people would also share his sympathy for the general issue of the occupants of a disused building in the ownership of the National Asset Management Agency (Nama), which is intended to be developed for office and private housing. The issue before the High Court, however, related to a fundamental right to ownership of private property.

There is little public sympathy with Nama, as a result of the occasion and manner of its establishment. That said, Nama has offered more than 6,600 houses and apartments to local authorities for social housing, more than 1,000 of which have been rejected because of a lack of demand for housing in their areas, with a further 1,300 rejected because their use would result in an over-concentration of social housing tenants. However, since 2011, a not inconsiderable 2,500 Nama properties have been accepted for social housing use.

The Constitution recognises and declares that people have certain fundamental personal rights. These rights are natural human rights and are confirmed and protected by the Constitution. There is a right to assemble or meet peacefully and without weapons, for example. This right is limited by legislation to protect public order and morality. The law also prevents or controls meetings that are calculated or designed to cause a riot or breach of the peace. There in no question that the occupation of Apollo House was peaceful; indeed a good case could also be made for its moral justification. There are other limitations on freedom of assembly, however. People cannot meet on private property without the consent of the owner — that is trespass.

The definition, allocation, and protection of property rights comprise one of the most complex and difficult sets of issues that any society has to resolve, but one that must be resolved. For the most part, social critics of “property” rights do not want to abolish those rights. Rather, they want to transfer them from private to Government ownership. The Constitution declares that the State will vindicate the property rights of every citizen. This means people have a right to own, transfer and inherit property and also to bequeath property upon death. These are important rights. The State guarantees to pass no law to abolish these rights. Article 43 also acknowledges that these rights ought to be regulated by the principles of social justice. This means that the State may pass laws limiting the right to private property in the interests of the common good. Examples of limitations include town and regional planning, protection of national monuments, compulsory acquisition of land and property taxes. The Fr Peter McVerry Trust and Dublin City Council assured Mr Justice Gilligan that there was accommodation available for all those in Apollo House. The judge also said that the occupants were entitled to take legal proceedings under the Constitution or the European Convention on Human Rights, a suggestion that was not acted upon.

Social critics across the Western world complain “property” rights too often take precedence over “human” rights, with the result that people are treated unequally and have unequal opportunities. It is not true to say that the Apollo House case proves that the rights of private property “trump” the human rights of vulnerable people. The purported conflict between property rights and human rights too often fails to take into account that property rights are also human rights. There would have been serious consequences for citizens’ property rights had the Apollo House case not been prosecuted.