All-Party Oireachtas Committee on the Constitution Submission 

May 2003

The Right to Private Property

(i) Constitutional distinction between different forms of property

The protection given to private property within the Constitution is based on the recognition that land is one of the most valuable forms of productive wealth or capital that individuals can aspire to possess. However, the generalised statement in the Constitution in relation to property rights fails to capture important distinctions between different forms of property. There is a failure to distinguish between non-created forms of property (ie land) and created forms (ie dwellings, buildings, vehicles). We believe this latter form of ownership constitutes a natural law right and as such should be recognised by the constitution, with limited qualifications. These qualifications would concern the ownership of certain goods and chattels that are against the common good interest as regards biodiversity or sustainability. (Examples include endangered species or goods that are of heritage value). 

The provisions of the Constitution regarding private property rights should therefore make an important distinction between property rights involving goods and chattels on the one hand, and property rights involving land and other natural resources (ie minerals, water and air) on the other hand, where the broader community has a legitimate interest and a stake.

We recommend that the creation of rights in relation to land and other natural resources such as minerals, water, air, the capacity of the ecosystem to process waste, various forms of intellectual property etc. should be governed by common good objectives. In providing for and regulating such rights, the State should act in a manner that is proportionate and not arbitrary.

Private Property and the Common Good

(i) Definition of the Common Good

The reference made to “the common good” in the Constitution is not sufficiently well defined to reflect the challenges to human welfare, both present and future, that characterise the highly developed society in which we now live. In particular, current public policy neglects the rights and interests of future generations.

The Green Party proposes that a new definition of the “common good” should be developed to include the concept of ‘sustainability’. The new definition should enshrine in the Constitution the rights of current generations to meet their legitimate needs while explicitly protecting the rights of future generations to do the same.

In this regard the definition of ‘sustainability’ used by the FEASTA organisation (Foundation For Sustainable Economics at www.feasta.org) may be useful. The FEASTA organisation defines sustainability as the right of future generations to inherit an enhanced, or, at least, an equivalent ‘stock’ of Natural Capital (ie land and natural resources) to that which the current generation enjoys, without any significant deterioration, depreciation or reduction in that stock. The definition of sustainability proposed should also cover the maintenance of ecosystem functions, the maintenance and restoration of biodiversity, and the protection of the natural, archaeological, cultural, spiritual and historic patrimony of the nation. 

(iii) Right of access to the countryside

We believe that the Constitution should provide for a right of access to the countryside limited by law in the interests of protection of agriculture and other legitimate use of land and privacy.  

As with all constitutional provisions this should be general for specific regulation by statute.   The provision of the Swedish constitution is a good model. We would suggest either the Swedish formulation or a wording which involves a recognition on the part of the State of the right of physical access to land, regulated by law, in a manner and at locations compatible with protection of the environment, the carrying out of agriculture and other legitimate uses of land, privacy and other appropriate considerations.

(iii) Rights of fictitious legal persons

We note and agree with the view of the Constitution Review Group in its 1996 report that constitutional protection for property rights should be limited to natural persons.

Legal opinion is mixed as to whether the protections of Article 40.3.2 (which refers to citizens) and Article 43 (which refers to ‘man, in virtue of his rational being’) extend to corporate entities. The Green Party believes that legal persons enjoy the privilege of limited liability and the other benefits of incorporation. We believe they must accept some of the disadvantages of incorporation, amongst them the absence of any constitutional rights. We also believe that if legal persons were accorded constitutional rights, including the right to the protection of property, it might mean that corporate resources and financial power could be employed to challenge the constitutionality of legislation. Indeed, the vindication of those rights would in all likelihood be an issue primarily in cases where it would be to the detriment of the interests of natural persons or the common good. The use of derivative action by shareholders provides adequate protection for the rights of individuals that may be directly affected by legislation impacting on the company. Since legal persons are the creation of statute, we believe that the protection of the rights and interests of legal persons is a matter for the Oireachtas alone.

Compulsory Purchase

The Green Party believes that powers of compulsory acquisition of property rights are an important element of the delimiting of property rights and the promotion of the common good. The Party wishes to see the Constitution empowering the State to compulsorily acquire property rights to fulfil a broader range of social policy objectives than merely road-building or the provision of transport infrastructure. We believe the appropriate tests for such acquisition are; the public interest; proportionality, and non-arbitrary character. We would propose the following wording for the Constitution:

The compulsory acquisition of property rights may be provided for by law but such acquisition must be demonstrated in each case to be in the public interest, proportionate and not arbitrary.

However, we also believe that if an equitable system of Land Taxation were introduced, the use of Compulsory Purchase Orders would not be as necessary as people would have a much greater incentive to sell or develop their land.

The Zoning of Land

(i)Windfall Tax

We propose a Windfall Tax as advocated in the Kenny Report on Building Land thirty years ago. This proposal is based on the principle that communities, rather than developers should benefit from the excessive profits accruing from rezoning land. We propose that the level of the Windfall Tax should be linked to the increase in value on development land caused through local authority rezoning or through proximity to other development.

The Price of Development Land

(i) Control of price of development land

The prices paid for serviced land suitable for building and for potential building land near cities and towns in the State contribute greatly to the cost of housing - these prices are much higher than for comparable land which is used for agriculture only. We believe that such prices should be controlled.

We support the main recommendation of the Kenny Report (1973) regarding land reform that Local Authorities should be able to acquire potential development land designated by the High Court at its existing use value plus 25%, rather than the much higher development value.

(ii) The introduction of land taxation

The Green Party believes that the nettle of land and property taxes has to be grasped. Such taxes can play a positive role in levelling the playing pitch in achieving equity in housing provision. We agree with the general concern that the State should be able, in a fair manner regulated by law, to recover increases in value resulting from zoning or planning decisions.  We do not believe that the current constitutional provisions would prevent this.  However we see no reason not to make an appropriate explicit provision.  We believe this recovery of value would most appropriately be done through taxation.  Taxation would be superior in all or almost all respects to the recently suggested mechanism of “step-in rights” by compulsory purchase.  It would be easier and cheaper to administer, would raise revenue, be fairer, more transparent, less contestable and involve fewer conflicts of interest and less scope and incentive for corruption.  Therefore we recommend that the Constitution specifically provide that the use of land may be taxed. 

A possible wording would be:

The State may promote the common good by imposing taxes on the use of land and other natural resources.

If such taxes are to be introduced they need to be linked to the ability to pay, possibly through the introduction of income limits. The Green Party supports a site value tax, as opposed to a property -based tax like the former domestic rates, which discouraged the improvement and upkeep of houses. We believe that an Annual Development Site Tax on the site value of development land should be triggered on the zoning of the land, or on the granting of planning permission. This Annual Development Site tax should be made available to local authorities (and through them to housing associations, housing co-operatives, community companies or trusts) and should correspond to the increased value of the land due to zoning or granting of planning permission. 

The Right to Shelter

(i) Right to Shelter or Adequate Accommodation

Shelter is a need for every person, and adequate housing is a basic human right, being recognised as such in the United Nations Universal Declaration of Human Rights (Article25(l)). Ireland has also signed up to the UN Convention on Social, Economic and Cultural rights which contains a commitment to a right to housing. The Committee on Economic, Social and Cultural rights considered the second periodic report of Ireland on the implementation of the International Covenant on Economic Social and Cultural rights in May 2002. The Committee noted with regret that, despite its previous recommendation in 1999, no steps had been taken to incorporate or reflect the covenant in domestic legislation, and that the Irish State could not provide information on case law in which the covenant and its rights were invoked before the courts. The Committee pointed out that, irrespective of the system through which international law is incorporated into the domestic legal order following ratification of an international instrument, the state party is under an obligation to comply with it and to give it full effect in the domestic legal order. The Committee reiterated its previous recommendation that the state incorporate economic, social and cultural rights in any proposed amendments to the constitution.

The Constitution should recognise a right to shelter or adequate accommodation and impose a duty on the State to vindicate that right.  Unlike property rights in relation to land, it is the view of the Green Party that this right is a natural law right.  We would also propose that any right to shelter referred to within the Constitution should explicitly include those with special housing needs.

(ii) Responsibility of State to ensure provision of adequate housing supply

The responsibility of the State to ensure the provision of adequate levels of housing for citizens, in particular social and affordable housing for those on low incomes, should be referred to within the Constitution.

We propose that Article 43.2.1 should read as follows:

The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice, and the State shall ensure the provision of an adequate supply of social and affordable housing.

As the lack of suitable sites is often a major problem in the development of new local authority housing, we propose that local authorities be given first call on any State lands which are due to be sold. Local authorities must also be mandated to work with housing co-operatives and other non-profit organisations, and to provide sites and seed funding for joint venture projects with these organisations. Much greater subsidies, whether in money, sites or materials, should also be provided towards non-profit housing organisations including housing co-operatives and voluntary housing associations.