WHO owns the Constitution? The answer may be self-evident to
He told a conference last month that he would like to do a lot more about the housing crisis but is prevented from doing so by the Constitution. “I was repeatedly blocked from making provision for what I believe is the common good by the strength by which property rights are protected under Article 43 of the Constitution,” he said.
That position has been disputed by, among others, the master of the High Court, Edward Honohan. He says there is ample provision for the common good to be taken into account. “The Constitution in effect provides that the State may expropriate private property if the Oireachtas decides that to do so is for the ‘common good’,” he wrote in an open letter to Kelly.
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What is at issue is the competing rights between individuals and the common good, and Honohan makes the point that there are circumstances where the common good must hold sway. He provided the example of road-building which often involves the compulsory purchase of land.
If Kelly’s was a one-off plaintive cry of “don’t hit me with the Constitution in my arms” it might have some credibility. But it is not.
Time and again, whenever successive governments have been faced with making a decision between vested interests and the common good they have come down on the side of the former by waving around the Constitution. And not just when property is at issue.
A perfect example of the constitutional defence used by governments was in the area of drink driving.
In 1998, the newly-formed Road Safety Authority (RSA) proposed the “urgent” introduction of random breath testing for drink driving. Younger readers may find it difficult to believe, but back then gardaí had to harbour a “reasonable suspicion” that a driver was under the influence before resorting to the breathalyser. Numerous prosecutions fell on the basis that the suspicion that a driver was under the influence was not “reasonable”, or at least was not shown to be “reasonable”.
Then along came the RSA with an eminently sensible proposal. Let the gardaí breathalyse whomever they wanted on the basis that anybody driving should be observing the law. Who’s afraid of random breath testing?
Well, publicans for one. They had their business to consider. How could anybody drink in peace while fretting the prospect that they could be asked to blow into the bag by a random garda.
Despite the urgency of the RSA proposal, the government of the day refused to play ball. On what basis? Well, there could well be constitutional problems with such a law. Everybody was too polite to point to the elephant at the cabinet table — the almost unrivalled political influence of the publican.
And so it went on for nearly eight years. During that period any time the prospect of random testing was aired, the government of the day waved the Constitution as reason why it couldn’t be contemplated. Between 1998 and 2006 there were 3,181 fatalities on the roads. How many of them might have lived if a more stringent regime of drink driving was in place?
Then in 2006, the constitutional issue disappeared. What had suddenly made the problem go away? For one, the country was awakened to the carnage by high-profile campaigns from the RSA and in particular its chairman, Gay Byrne. This period also coincided with a waning of the political power of the publican.
So once the public mood changed, and power began draining from a vested interest, the road was cleared of the ‘constitutional problems’. Random breath testing was made law and no more was heard about it.
The Constitution has also been continually invoked to prevent interference in the property market. Back in 1974, the Liam Cosgrave-led cabinet of the day was presented with the Kenny report into the price of building land. One of the report’s main findings was that land speculation was hindering the cost of housing.
Once land is rezoned from agriculture to housing, its value increases by a multiple, effectively turning muck into gold overnight. All of this windfall accrues to the landowner, despite rezoning being effected ostensibly for the common good. The canny landowner makes huge fortunes on the back of the common good.
Kenny proposed changing the system to statutorily value rezoned land as its agricultural price plus 25%. On the face of it this would go a small way to rebalancing power between vested interests and the common good.
Reportedly, the Kenny document was passed around the cabinet table. Somebody pointed out that there could be a constitutional problem over property rights. Nobody had the stomach to take on the vested interests of land owners and developers. Consequently, the Constitution was waved as exhibit A to protect the politicians from making difficult decisions that would discommode their friends and benefactors.
There was little further discussion and the report was shelved, where it lay until an all-party Oireachtas committee on the Constitution examined the issue and reported in 2004.
The committee found that in light of developments in case law over the previous 30 years it would now be “very difficult” to see any constitutional impediment to implementing it. In other words, here’s your chance lads to do something to rebalance the power between a vested interest and the common good.
Of course nothing was done. In 2004, the Bertie Ahern-led government had taken to genuflecting at the altar of the developer. There was no way there was going to be any interference in a market that was making overnight millionaires out of Fianna Fáil’s buddies, who in turn paid financial tribute to the party.
The Green Party attempted to do something about it by bringing in a 90% windfall tax on rezoned land, but once Fine Gael got into power that was dispensed with by Phil Hogan.
Today, in the throes of a real humanitarian crisis in housing, another politician is dusting down the Constitution as a defence for doing nothing.
A serious debate over what powers the government can invoke in what is effectively an emergency needs to take place. Honohan has suggested that the hoarding of residential property by vulture funds could be targeted.
Certainly, the hoarding of building land should be examined in a far more aggressive manner that it currently is. The continuing travesty of awarding land speculation through the rezoning — undertaken for the common good — has still not been addressed. All of these and other issues in relation to the constitutional provisions for private property have to be in the mix to find solutions to the crisis.
The day when a minister can simply wave the Constitution as a defence for not doing anything that might discommode a vested interest should be long gone by now.
Michael Clifford
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