Abstract
“Though a dwelling house is property and often indeed the most valuable piece
of property an individual citizen possesses, it would be quite wrong to equate
it with other forms of property such as money or money’s worth […] The free
and secure occupation of it is a value very deeply embedded in human kind
and this free and secure occupation of a dwelling house, apart from being a
physical necessity, is a necessity for the human dignity and development of the
individual and the family”: per Hardiman J. in The People (DPP) v Barnes.
The words of Hardiman J. elegantly express the profound relationship between
the secure occupation of a dwelling and basic human needs, both physical
and mental. In this piece, we shall consider the extent to which a right to
shelter currently exists in Irish law. It has been extensively noted that there
is no explicit constitutional or statutory right to shelter or housing in Irish
law, save for the State’s duty to children under the Child Care Act 1991 (the
“1991 Act”) and Art.42.5—now Art.42A—of the Constitution. However, in
this article we explore whether a right to shelter may be feasibly secured or
implied through the protection offered by other constitutional provisions or
through the jurisprudence of the European Convention on Human Rights
(“ECHR”). In Part I we shall consider whether a right to shelter can be secured
through the Constitution of Ireland, by examining a number of rights, namely
the right to bodily integrity, the constitutional right of the person to protection,
the constitutional property right a tenant may have in a lease, and the State’s
constitutional duty toward children. Our analysis suggests that there are a
number of ways in which the Constitution could afford extensive protection to
such a right. In Part II, we examine whether a right to shelter may be grounded
in the jurisprudence of the European Convention on Human Rights through
the obligations placed on state organs through the European Convention on
Human Rights Act 2003 (the “ECHR Act 2003”). The recent work of the
Constitutional Convention, and the majority vote of confidence by its members
for the recognition of an explicit enumeration of socio-economic rights in the
Constitution, once again raise controversial and contentious issues concerning
the proper role of the courts in the democratic order and their legitimacy and
capacity to grapple with such questions. We hope to demonstrate that although
those in favour of vindicating a right to shelter through the Constitution will
invariably continue to pursue an explicit enumeration of that right through
amendment, the current jurisprudence in the area suggests that there may be
other, albeit more subdued, means of vindicating a right to shelter.