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32 May-June 2023 May-June 2023 33
Conservative views on property
Housing Minister Darragh O’Brien reportedly told
the Cabinet in early March that correspondence
from the Oce of the Attorney General stated that
any decision to extend the ban on evicting
tenants would require “substantial evidence, and
legal and policy justification”. A memo to Cabinet
stated that the eviction ban was a “substantial
impingement on property rights”. that there was
a “deep concern” in Government that landlords
would consider an extension to be “a serious
breach of trust by Government”. This reveals a
distorted sympathy rather than an acute
understanding of the law.
What’s going on? Clearly there are indeed
policy justifications for extending a ban on
evictions where there is almost no alternative
housing for anyone who is evicted. Clearly the
Attorney General would be the best chap to
provide “legal justification” using “evidence”. It
seems the government just wasn’t into it.
The government’s ideological sympathies are
with the rights of property, the rights of the
propertied: with landlords.
Village
’s are not.
The 1937 Constitution, worded by folk whose
interests to say the least would have been landed,
gives these conservatives the cover they crave.
Time to get rid of it, if we want Ireland to be
modern and happy.
And the problem isn’t just inflation of the
interests or — if you will (which we don’t) — rights
of landlords,
By Michael Smith
Clearly the Attorney General would have been
the best chap to provide “legal justification”
using “evidence” to extend the eviction ban. It
seems the government just wasn’t into it
Rights
Village’s agenda is to promote equality, quality
of life and sustainable development (being a
balance of economic, social and environmental
factors) rather than vested interests. It looks to
the long term as well as to the short term‡ to
social, environmental and economic imperatives
not just vested imperatives. These factors
animate its approach to property rights.
It supports the recognition at every level,
including Constitutional, of these general rights
as well as civil and political rights as “human
rights”. Humans do not have the means to fulfil
For Ireland to flourish we
need more modern property
laws, starting with
the Constitution
their potential unless they are aorded all these
rights.
Bunreacht na hÉireann
Ambiguity in the property rights section of
Bunreacht na hÉireann, the Irish Constitution,
drives a conservative approach on the part of
those charged with the public interest and the
common good. It has militated against good
environmental policy, quality of life, proper
taxation to redistribute wealth and opportunities,
and now it is notably militating against a proper
approach to homelessness, housing rights and
landlordism. It is also undermining eective use
OPINION
Property should be subject to more important imperatives such as
sustainability; quality of life; Housing, equitable taxation including CAT,
CGT, property tax and site value taxes; and CPOs for all these purposes
32 May-June 2023 May-June 2023 33
of Compulsory Purchase Orders to advance the
public interest in all the above imperatives.
The right to private property
The right to property is guaranteed by two
separate provisions of the Constitution − Article
40.3.2 and Article 43. Broadly speaking, Article
40.3.2 pledges that the State shall vindicate the
property rights of every citizen. Article 43,
however, acknowledges that these rights ought
to be regulated by the principles of social justice.
Both Article 40.3 and Article 43 are particularly
open to subjective judicial appraisal, with
phrases such as “unjust attack”, “principles of
social justice”, “reconciling” the exercise of
property rights “with the exigencies of the
common good” are all putty in the hands of any
judge. Professor KC Wheare in ‘Modern
Constitutions’ [1966] famously contrasted the
stress placed on the right of private property in
Article 43.1 – “calculated to lift up the heart of the
most old-fashioned capitalist” − with that placed
on the principles of social justice and the
exigencies of common good in Article 43.2 – “the
Constitution of [former] Yugoslavia hardly goes
further than this”. It was, he said, “a classic
example of giving a right on the one hand and
taking it back on the other”.
‘Natural right’
And the theory is dodgy. Article 43.1 contains an
acknowledgment that man, by “virtue of his
rational being” has the natural right to private
ownership “of external goods”. This is brought to
you by the lads who saw a woman’s work as
within the home and invoked their constitution
“in the name of the Holy Spirit”. It seems
unhelpful to root the right in so controversial a
base.
I would consider that any right to property is
subservient to the public interest. It may be
subverted if it proves iniquitous. Rights don’t
come from the rational being of man or any Holy
Spirit.
Contemporary judicial thinking, reflected in
Attorney General Rossa Fanning’s advice to
Cabinet, seems to stress that, while the State may
regulate and interfere with property rights, it may
not do so in a manner which disproportionately
interferes with such rights.
There have been only about ten cases in Ireland
where a plaintiff has established an
unconstitutional interference with his or her
property rights and in nearly every such case the
potential arbitrariness or disproportionality of
the interference in question was fairly evident.
For me the interference is proportionate if it
advances the public interest.
Is there a right to Property?
The right to property is one that has received
international acknowledgment in, for example,
Article 17 of the United Nations Universal
Declaration of Human Rights and Article 1 of the
First Protocol to the European Convention on
Human Rights.
Generally a right is something untrumpable,
good against all-comers. The right to your life
comes close to this. Village believes in general
economic, social and environmental rights and
thinks there’s a right to equality of outcome.
Nobody has a right to get State support to
advance greater participation in the fruits of this
earth than that of others. Advancement through
property is the antithesis of the right to equality.
But that argument is for another day.
For me property rights should always and
everywhere be subject to the public interest, to
the equal rights of others.
On balance I would not be inclined to endorse
the views of the UN and ECHR that a right to
property should be recognised since for me it is
closer to a mere ‘entitlement’ and easily
dislodged. The chief reason
for its recognition as
anything is economic and
practical. However, we do
not believe the right is a
human right or indeed a
fundamental right. As such
it if it is aorded any place
in any Constitution it must
be separate from the
recognition of fundamental
rights to which it is
comprehensively inferior.
So, any formulation of
the protection of property
rights should at least be
accompanied by a clause
which would allow the
Oireachtas to qualify the
exercise of such rights in
the public or environmental
interest in cases where
there are clear objective reasons for doing so and
where the legislation is proportionate to the aim
sought to be achieved.
In this edition Village features a piece by the
former Master of the High Court on wording for a
referendum that would take account of the need
to ensure global capital does not exploit the Irish
situation at page 34 .
Sustainability
An amendment to the constitution should include
explicit inclusion of a right to sustainability i.e.
intergenerational equity. Sustainability is a
concept which postdates the constitution. It
should now be recognised as it has been in the
South African Constitution.
The Bruntland Report defines sustainability as
“meeting of the needs of the present generation
without compromising the needs of future
generation”. This is a core principle of global and
international application. It forms part of the
state’s international commitments made through
UN forums including the Rio Earth Summit. It was
incorporated in Irish legislation in the Planning
and Development Act. Without the concept the
rights of future generations would be excluded
as a component of the public interest.
Quality of Life
The tacit goal of society seems to have emerged
as the promotion of Quality of Life. Too often
Standard of Living is used as a very poor indicator
of this. This is responsible for many poor
decisions. Proper policy would require the
recognition of the importance of official
monitoring of Quality of Life Indicators. That we
are light years from this, even under coalition with
a supposed Green component, does not alter the
centrality of its importance.
There should be express recognition of the
importance of proper planning as the vehicle to
sustainability and quality of life.
Housing
Housing should address the two last two
headings, being sustainable and equitably
advancing the quality of life. The lack of excellent
The right to housing should
be absolute and no landlord
should be able to deprive
a tenant of this right
(save where the tenant is
dangerous or has acted
violently or anti-socially)
How site-value tax works
34 May-June 2023 May-June 2023 PB
aordable housing in sustainable integrated
settlements in Ireland is caused by the nature of
the current property ownership model that does
not fully recognise the equal right of all to share
in our natural resources, part of the right to
equality of outcome.
It is expected that the Commission for Housing
will shortly recommend holding a constitutional
referendum to incorporate a constitutional right
to housing, a commitment in the Programme for
Government. There is an absolute right to housing
and it is appropriate to pass a constitutional
amendment providing for it. However, the one
envisaged by government is likely to be symbolic
only. What is needed is a right to housing that is
enforceable, that can incite litigation. The right to
housing by way of shelter is absolute. It could
easily be delivered with existing resources if
there were political will.
The right to housing should be absolute and no
landlord should be able to deprive a tenant of this
right (save where the tenant is dangerous or has
acted violently or anti-socially; and been given
enough notice etc). The fact a landlord wants to
sell the accommodation or make it available to
family etc should not be weighted heavily. The
landlord and family can have the property rights
they believe in addressed in accommodation
where nobody else is evicted to facilitate it. The
rights of landlords should be very limited.
In Ireland in 2023, so grave is the distortion
and the paranoia of cutting across the private
market that even Sinn Féin has to favour
landlords. The headline in the IT of 10 April was
“Mary Lou McDonald rejects idea Sinn Féin
housing policy prompting landlords to exit
market”. So what if they did exit - their houses
will remain part of the State’s building stock and
the message is: provide public services.
Taxation
All property, all property rights, all wealth and
income should be subjected to taxation for
fairness and to advance equality.
There should be express recognition of the
need for progressive Capital Acquisition Taxes so
the accident of gift or inheritances are taxed at a
higher rate than the fruits of actual work. In many
ways work should be encouraged. In no way
should accidental windfalls be encouraged.
There should be a progressive property tax, at
higher and better finessed rates than currently.
The price of development land, unacceptably
and unsustainably high in the Irish market, is a
direct result of the current property system that
fails to recognise the fixed nature of land and the
right of citizens to an equal share in the country’s
resources. This can be addressed by aggressive
Capital Gains Taxes on windfall gains (which were
abolished by Michael Noonan some years ago)
and by means of an annual site value tax.
This tax, based on the value of the land (thus
higher for more valuable locations), would ensure
that the best-located sites are developed early
where the community has already made the
investment in infrastructure and services. Less
pressure for premature zoning from landowners
on planners and elected representatives would
lead to Development Plans with a more compact
footprint and greater credibility. One of the few
imaginative measures from the coalition
government, presumably spearheaded by the
Greens, is a new annual tax, the Residential
Zoned Land Tax, will be calculated at threeper
cent of the market value ofserviced land that is
zoned for residential or mixed use but not subject
to the local property tax (i.e. developed),from
2024. Let us hope the latifundist property sector
does not wriggle.
Taxes on labour and capital dampen
investment in these factors of production and so
dampen economic growth but annual taxes on
land do not do so. This is the up-side of the fixed
and pre-existing nature of land – in a virtuous
circle, the higher the annual taxes on land, the
more it is brought into production. Annual taxes
on labour and capital have the opposite eect.
CPOs
Far more use should be made of compulsory
purchase to all the ends in the headings above.
If property is only a bare right, or entitlement it
should be easily dislodged.
Thefamous 1973 Kenny Report’s majority view
called for the creation of areas on the fringes of
our cities, to be designated by the High Court,
where local authorities would compulsorily
purchase land at agricultural values, plus 25%.
The idea was that these lands could be managed
directly, or sold on to developers, thus reducing
land costs for housing. That still seems about
right and should be implemented.
Economists will describe how the high cost of
housing land is related to the demand and supply
for homes. Housing demand is high because of
demographic change, immigration, recent low
interest rates and economic growth. A shortfall
in housing supply, caused by the collapse of the
property boom, construction industry collapse,
borrowing diculties, a policy move against
State provision of housing and ideological torpor,
outlined in another article in this magazine [page
21] allows sellers to extract a high if not the
maximum price from buyers. Land now represents
around 15-20% of the total cost of the housing
unit. The larger part of developer’s profits derives
from the increase in land values from the time
they bought it to the time they sell. Thus,
developers have long amassed land banks on the
edges of our cities, adding to scarcity.
These lands should be CPO’d as well as
subjected to the annual site value tax. As well as
reducing prices in the medium term through
increasing supply, site value taxes would reduce
the price of land in the short term as it was fast
factored into calculations by intending buyers.
NESC conclusions
This is not particularly new thinking — a report
from the National Economic and Social Council
resolved in 2011.
“The case for public land management
supported by widespread compulsory purchase
must explain what agency would be capable of
handling this and must consider contexts in
which the policy can work with and without price
control; Those who argue that additional
betterment capturing measures (such as a higher
CGT or a new Planning Gain Levy) must address
how it would work in those contexts where the
supply of land could be reduced; The case for a
site value tax must clarify a number of features of
its design, including how it would apply to those
who are asset rich but cash poor. The conclusion
reached by NESC in its main report, based on its
analysis of the operation of the land and housing
market, is the adoption of a combination of
approaches: A land-use strategy over a long
horizon, including zoning and servicing of land;
Land for enhanced social and aordable housing
programmes; Sucient active land management
to ensure delivery of housing; and Betterment
sharing measures, designed in a way that does
not damage supply”.
Almost every legitimate agenda
is served by curtailing the rights of
property: ethical: elevating needs
over luck; egalitarian: elevating
fairness over privilege; social:
elevating quality of life, and
housing over profit; environmental:
elevating sustainability;
economic: elevating productive
capital and especially labour over
inert land.
Let’s get a move on, starting
with a proper meaty referendum.
The higher the annual taxes
on land, the more it is brought
into production. Annual taxes
on labour and capital have
the opposite effect
AG and Taoiseach: axis where conservative
legal advice meets conservative politics
