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Honohan and Equality

Housing and the sidelining of the Master of the High Court

THE RIGHT to Private Property and private ownership of goods tends to divide the Right from the Left. In Locke and Hobbes, it is the central human right as it has always been from a Whig-Liberal or indeed a Neo-Liberal perspective. From a Marxist perspective it is an unqualified evil and even those who accept it as a human right from a leftist perspective do so under characteristically qualified conditions. I have not noted much enthusiasm in Village magazine for property rights.

Striking its inevitable balance, the Irish Constitution subjects property ownership to the common good, whatever that means. It has been much elaborated and is more progressively interpreted than is probably widely believed, by Irish courts, especially the Supreme Court.

What has not been developed in Ireland is Article 45 of the constitution whose stated object is to establish social and economic rights. In this respect it has always been open as the South Africans, Canadians and others have done to establish a right to housing. In India they are defined as a basic survival right intrinsic to life and General Comments 4 (1991) and 7 (1997) of the UN Economic and Social Rights Committee – on the right to adequate housing – recognise that the human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights. The UN Declaration of Human Rights and its Covenant on Economic and Social Right article 11 (1) requires that its 153 States parties “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing”.

Article 26 of the South African Constitution stipulates that the state has an obligation to build adequate housing and is prohibited from arbitrarily evicting anyone. Subsequent jurisprudence has established that before an eviction there should be meaningful consultation through arbitration and that no one should be evicted without having somewhere to go. The state also has a duty to have a housing plan and to build houses.

In contrast the courts in Ireland are powerless: once processes have been undertaken for eviction or dispossession and those processes comply with the formalities then that is that. A grandmother can be jailed for contempt of court as she seeks to repossess the house from which she has been evicted.

In February the Master of the Irish Court was bumped by a High Court judge out of his role in managing debt repayments as he was blocking banking repossessions and was perceived to be anti-bank. Given his role as a filter of claims always susceptible of appeal to the High Court which almost always over-ruled him, when offered the chance, there is some, not much, merit in the acid view of Judge Garrett Simons that he was giving people false hope by staving off the evil day.

Perhaps that seems true from the perspective of a positivistic judge with a planning background who through his filters sees no role for the courts in interfering in social and economic justice issues centring on housing. On the other hand it would not be false hope if it yielded real solutions and radical change. Elsewhere in this edition of Village Tony Lowes explains the evolving right to a good environment in Ireland. It would not be qualitatively different in a country where homelessness is a universal preoccupation if the right to housing crystallised judicially.

Ireland has witnessed an upsurge of NGOs and, depending on your perspective, busybodies, clogging up its busy courts, often as lay litigants, agitating for some measure of protection for the dispossessed. The Land League which I have represented is one and of course New Beginnings, a separate initiative before in effect it was flogged to the banks with a profit motive.

On the other hand for soft liberals and leftists an overarching concern is that those who massively over-borrowed while others kept their discipline are not to be empathised with as they are part of the casino capitalism problem. Accepting the validity of the blandishments pf property speculators or professional hypocrites is Sleeping with the Enemy.

Well yes and no. Firstly, a common Irish failing is to separate out the dancer from the dance. However, in the interests and fairness it is essential to depersonalise and be objective.

One of the defects in populism is that it allows demagogues to showboat and scream even when they are the authors of their own downfall. Village readers will dislike populism, demagogues, the property brigade and presumably people who are the authors of their own downfall. But it does not make it unreasonable to support rights to housing – for the following reasons:

1: That the requirement constitutionally (and for example under the UN Covenant on Economic, Social and Cultural Rights) is merely to affordable housing of an appropriate scale – possibly rented – not to the freehold in a ten-bed in Killiney – even if Jerry Beades can justify it; and even those sinking in greed-generated debt are entitled to a humble abode in a just society for without it all dignity and much capacity is lost. The indisputable fact that some of the agents in property-rights activism have lost sight of this entirely should not blind us to the fact that the imperative is none the less forceful for being so limited. It should be conceded that dishonest transfers of assets and the Family Home Protection Act have created a justified sense that in its execution some people are unfairly getting to keep enormous homes when the constitutional right is, and should be, limited to modest lodging.

2. That though the goal at least for those on the left may in theory be equality, in practice we are dealing with the crooked timber of humanity and in Ireland some of the most abject are boomtown debtors, by definition still reeling after more than a decade. The right to equality does not dissipate even for the turpitudinous. Even for egalitarians at some stage it becomes necessary to remove even the most red-in-tooth capitalist from abjection.

3. That even for the left, short of communism, those who take risks should not be pariahs but celebrated, in a society as redistributive as Ireland as contributors, at least on the economic side, to a society that depends on wealth creators to fun social and environmental imperatives, as well as further economic ones.

4: That the scattergun approach of neo liberal liquidations hoovers up not just the property speculator but ordinary people. How in practice are ordinary people responsible for their downfall when through ignorance and trust they listened to fraudulent and negligent misrepresentations, the variation of mortgage agreements often ex post facto and not in accordance with ECB rates as pariah entities such as Danske Bank simply left the country and the judges uphold the interests of the banks and their usury including the nefarious factoring on debts to vulture funds, the practice of bundling and the buying of communities such as the Tyrellstown estate, who could pay their rent, to later expose them to the stringencies of a hyper-inflated market and destroy a community.

5: The meltdown has protected those who most benefited casino capitalism: bankers, judges, lawyers. Nobel Prize winning economist Stiglitz remarked: “It is socialism for the rich and capitalism for the poor”.

Judge not or you shall be judged is lost in all of this and when the gatekeepers themselves are the problem well then matters are even more complicated. Who shall judge the judges?

So, The Master was doing his best within the structure of his limited powers. The real culpability should be attached to the inner circle of do-nothing judges, deeply compromised, part of the neo liberal problem and with no desire or sense of empathy to provide all the people of Ireland with affordable housing and rents but merely to implicitly endorse state sponsored and corporate liquidation.

The argument is not about the protection of the assets of Mr Beades or his ilk, it is about substantive equality and the right to a humble abode.

So, I think for all his misguided banging of windows, occasional arbitrariness, playfulness and pedantry the Master has provided a measure of social protection for the indebted. His compassion and the twinkle in his eye have been a rare deviance from the harshness of the debtor courts. For those who need forgiveness but also for those who forgive, it will be missed.

David Langwallner is a barrister at Great James Street Chambers London.