David Langwallner: A Challenge Supreme

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From top: The Irish Supreme Court sitting  in 2020 with Chief Justice Frank Clarke (centre) with Supreme Court members , from left: Ms. Justice Isuelt O’Malley, Mr. Justice John MacMenamin, Mr. Justice Donal O’Donnell, The Chief Justice Mr Justice Frank Clarke, Mr. Justice Liam McKechnie, Mr. Justice Peter Charleton and Ms. Justice Mary Irvine (Mr. Seamus Woulfe has since joined); Mr. David Langwallner

Journalist Danielle Idini, from Cassandra Voices, is doing a series of interviews, consultation documents and reportages about the housing and homelessness meltdown in Ireland.

It is a cascade toward social meltdown, escalated by Covid, so this is a serious departure in Broadsheet as I am supportive but driven by a sense of urgency.

I have initiated a campaign and other stakeholders are involved, and believe firmly that the only way forward is to appeal to the semi-civilised Confederacy of Dunces (1980) of our Supreme Court before it is too late. And it is, in graphic terms, three minutes to midnight.

Danielle is an Italian and, I think, an urbane human being, familiar with Vittoria De Sicca of the Italian neo-realist tradition who created the masterpiece Bicycle Thieves (1948).

The plot of the film is this man, driven to destitution and those of his livelihood by the theft of a bicycle, who then steals a bicycle and thus is lowered in his son’s eyes, seeing him chased and arrested and hounded by the mob. An idol fallen. Well, who are the thieves? In parenthesis, Danielle’s bicycle, a little like Gogol’s precious overcoat, was also stolen recently.

The social and economic rights, in fact, have a long intellectual pedigree. They are there in the Englishman Thomas Hobbes’ enumeration of natural rights. They are there in Ancient Greek lists of fundamental natural rights. There was a proposal to include them in the UN charter, aborted by the developed world, and thus they are reconstituted in the 1966 covenant but with limited effectiveness, even allowing for recent rights of an individual petition. But we are now all in the same boat.

Article 40.3 of the Irish Constitution and the Directive Principles (Article 45) allow for the creation of a right to housing but, despite the murmuring of the late vestiges of Christian socialism, our judges have declared these non-justiciable. That is ever since the neo-liberal ascendancy. Including and especially a man I have much praised, Adrian Hardiman, and, let us allocate blame even handedly, Declan Costello (although he apologised and recanted when he retired). Costello was, in fact, responsible in O’Reilly v Limerick Corporation (1990) for stating that such social and economic considerations were matters for Leinster House not the Four Courts. Hardiman followed suit. Egg on faces.

The Indian Supreme Court conversely, in Olga Telis v. Bombay Municipal Corporation, recognised the right to housing in the context of an extension of the right to life. This case concerned public interest litigation by thousands of pavement dwellers of Bombay city. The plaintiffs argued that they could not be evicted from their squalid shelters without being offered alternative accommodation.

They further argued that they had chosen a pavement or slum to live in only because it was nearest to their place of work, and that evicting them would result in depriving them of their livelihood. The petitioners were to be evicted under the Bombay Municipal Corporation Act, which empowered the Municipal Commissioner to remove encroachments on footpaths or pavements over which the public have a rite of passage or access.

The Indian Constitution (modelled on the earlier Irish Constitution) excludes the Directive Principles from cognisance by the court. Yet the Indian court, unlike our judges, opined in finding that the right to life itself was informed by the directive principle that: Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood.

The court concluded that if there is an obligation upon the State to secure for its citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The judgment thus expanded the right to life, guaranteed under Article 21 of the Indian Constitution, to include within its scope, the right to livelihood which, in this context, translated into the right to be allowed to remain on the pavements.

It might be noted that the South African experience is different in that social and economic rights are textual and thus inherently justiciable and dignity is in their charter in several places.

The relevant housing provision in Grootboom is Article 26:

Housing 1. Everyone has the right to have access to adequate housing. 2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. The Constitution also specifies an immediately enforceable specific minimum right against forced or arbitrary evictions. Such a right entails: (i): Meaningful consultation prior to eviction. (ii): Alternative relocation if eviction proceeds. (iii): No eviction to proceed unless the land is being put to productive use.

Nonetheless, the South African courts have set down limits for their review and, in general, such rights are in the text of the document to be progressively realised. In Soobramoney v Minister for Health, the South African Supreme Court was very explicit about the large margin of discretion it would give to the state to set budgets and priorities, stating that the court “will be slow to interfere with rational decisions taken in good faith”. However, if the decision taken is unreasonable then the South African courts will interfere.

In Ireland, the housing market is chronically under-provided with many local councils reluctant to countenance the building of modular homes and the rental market out of control and extortionate. The neo-liberal David McWilliams advises not to buy homes. There will be no security for the mortgaged or rentier class. The state of Ireland is also tolerating an epidemic of evictions by banks and vulture funds from Canada and America who have ‘agency captured’ the banks and bought up the assets of the banks and Nama in a subprime way.

A liquidation sale against the dispossessed. Bicycle thieves.

Our judges have not adequately regulated, and have negligently permitted, said vulture and hedge funds to engage in unfair commercial practices often in breach of consumer protection; reneging on promises bartered with consumers at a time of high ostensible economic prosperity, by refusing their contractual obligations to revert the consumer to a tracker mortgage after the expiry of a fixed rate period; or upping interest rate repayments significantly more than ECB hedge rates, most prevalently with those seeking to exit the country.

Thus, banks with no interest in Ireland, Danske Bank and the Bank of Scotland and now Ulster Bank, simply left the room and disposed of their assets, hiking up the mortgage interest rate payments rapaciously as they left and/or sold the assets off to the underworld of vulture funds and hedge funds.

In 2008, the Central Bank and other banks may have allowed a potential at least €6 billion borrowed, or in accountancy terms classified as income, disappear where? And to whom? And all of this while people are being thrown out on the streets, even in Covid times.

To counteract all of this and deal with homelessness and affordable housing, a challenge has to be made through the courts to establish a right to housing.

Recall that In 2014, the Constitutional Convention recommended that the Constitution be amended to include economic, social and cultural rights including a specific right to housing.

Our politicians have been bought. Now, the only hope is the good old boys of the less-captured judiciary. So, let us in our half-baked non-profession launch… a constitutional challenge.

I am committed and I am sure some legal minds in Dublin would enjoy taking up the challenge?

What will our children think if we don’t? Well, watch Bicycle Thieves.

David Langwallner is a barrister specialising in public law, immigration, housing and criminal defence including miscarriages of justice. He is emeritus director of the Irish innocence project and was Irish lawyer of the year at the 2015 Irish law awards. His column appears here every Tuesday and Friday. Follow David on Twitter @DLangwallner

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11 thoughts on “David Langwallner: A Challenge Supreme

  1. goldenbrown

    “Our politicians have been bought”

    above all that one short sentence is the beginning, middle and end of the problem

    I’m not sure how I could apply my skills but interested in participating

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