Unfortunately we are running late. I welcome the Institute of Engineers in Ireland, which is represented by Mr. Paddy Purcell, Mr. Peter Langford, Mr. Paddy Caffrey, Ms Anne Butler and Mr. Liam Connellan. Members of the committee have absolute privilege but the same privilege does not apply to witnesses appearing before it. I take this opportunity to remind members and viisitors to switch off their mobile phones now. I invite the institute to make its submission. We have already received a very detailed, substantial written submission and I ask the delegates to synopsise it in six or eight minutes, after which members may ask questions. I know this is a short timeframe but we have used this system for the past three or four days.
Property Rights: Presentations.
Mr. Peter Langford
I am Peter Langford, president of the Institution of Engineers of Ireland. I will read our submission and will be delighted to address any questions the committee may have. We represent over 21,000 members and cover all disciplines of engineering and all branches of society, including State bodies, local authorities, contractors, design engineers, industrialists, users of infrastructure and those tasked with providing vital infrastructure.
Our mission is to serve society through the highest standards of professional engineering and to improve the quality of life by creating prosperity and adding value through innovation and the promotion of health, safety and sustainable development. We have a central role to play in the economy and are key contributors to industrial development, through industry, the services we provide to industry and the infrastructure that is required to support it.
The written submission we have circulated to the committee outlines the key items to which we refer when we refer to infrastructure. There is no need to discuss it now. The submission also outlines the importance of infrastructural development - industrial and economic - for indigenous industry and for foreign direct investments in Ireland. We work hard towards balanced regional development and strongly support the implementation of the spatial strategy in conjunction with the IDA, Enterprise Ireland and others.
We regard sustainable development very much as our core focus. This cannot be achieved without optimising energy and resource use and environmental protection. Equally, sustainable development deals with the quality of life, economics and social development. It requires a holistic approach.
Our infrastructure deficit is very clearly defined. Our National Competitiveness Council Report 2002 shows how we are falling behind in that respect. Our written submission refers to the World Competitiveness Yearbook, which indicates that we are 28th out of 29 in terms of maintenance and development of infrastructure overall and that we are last in terms of distribution infrastructure.
Long delays in planning and approval are a major problem. They have a significant cost impact as well as a time impact, invariably leading to less than optimum solutions. Our submission cites many examples in this respect, including the Kildare bypass, Carrickmines Castle, the M50, the Cork electricity transmission grid and the Corrib gas terminal. These are coming up all the time as key areas in which the length of time to deliver projects is a major stumbling block to moving forward with infrastructure and improving the quality of life.
The implications of that are that our international credibility and competitiveness will suffer if we cannot deliver our projects in a more timely and cost effective manner. There will be less inward investment, slower economic growth and higher unemployment if we do not do something about this and the quality of life will be reduced. It will be the public who will suffer on all fronts in terms of higher costs and poorer service.
We believe that some of the causes of this are that the rights of the individual seem to take precedence over the common good in many of the approvals and deliberations which go on before a project can proceed. We notice far more openness to any infrastructural development which has now become the norm. We now have common terms such as NIMBY - not in my back yard - and NOTE - not over there either - and so on. Planning approval in general takes too long. In that respect, we recently wrote to the relevant Ministers and the Taoiseach welcoming the proposal for a critical infrastructure Bill and we are in the course of making a separate presentation to the Government on that issue.
We believe that we need to have a clear understanding and definition of what the national vision is - we see it as being social equity, the development of a spatial strategy, the requirement for value for money, an appropriate mixture of public and private, which must be underpinned by sustainable development which, as far as we can see, is common sense and of which all of our members are fully supportive. The standards of service in the public and private sectors need to be improved and there needs to be accountability.
We have outlined Article 43.2 of the Constitution which the committee has heard ad nauseam and we believe that the common good needs to be taken into account more in considering infrastructural development and projects generally. We also believe that it must be appreciated that public infrastructure benefits every citizen - industry, the economy and society at large - a fact which is often not recognised. In many cases, the people who object to public infrastructure are the closest to it when the infrastructure is in place and, in many cases, are the key people who gain from it. Therefore, in improving the planning process, we must recognise the need to serve the common good more but we must also recognise the rights of the individual, but only when it is consistent with the common good, and we must make balanced and timely decisions.
We have already suggested to the Government that ideally and where possible we need a one-stop-shop infrastructural planning body rather than people having to go to two, three, four or five bodies for approval for a specific and desirable national project. This could be either a dedicated and re-enforced division of An Bord Pleanála, to which it is specifically related, or a separate body. We are open minded on the option provided it works. Invariably these projects seem to be destined for An Bord Pleanála, whether they spend ages in a local authority or not. Therefore, why not have a one-stop-shop body which picks it up at the end as far as possible? We also believe there should be a specialist division of the High Court because in the case of many projects, people dump them into the court where they spend a long time. The High Court is possibly not geared as much as it should be to handle such cases and to prioritise.
We believe there should be mandatory timetables for approval where approval has to be given projects and we believe that the oral hearing process for appeals should be streamlined, more disciplined and more relevant and that the Department of the Environment, Heritage and Local Government should prepare guidelines. We also believe the land acquisition process should be improved and that there should be more incentives and encouragement for development land to be released onto the market. We think that prices ought to be paid which relate to the value prior to rezoning and that windfall gains should not be made just because it is decided to put in infrastructure. As I have already said, often the people who object most and perhaps get inflated prices are the people who benefit most once the infrastructure is in place and the State is caught for a double whammy. That should not happen.
In encouraging development, we believe that optimum use should be made of the serviced land initiative and there should be greater encouragement to use strategic development zones, SDZs, and the process should be simplified. There also needs to be an increased emphasis on integrated and sustainable land use zoning by removing the rigidities from land use zoning to allow more integrated developments to take place.
We believe that infrastructural development is the key to Ireland's competitiveness, economic growth and quality of life. The infrastructure deficit, planning delays and the cost impact must be addressed and we need clarity of vision and legislative backing to ensure implementation. We are not constitutional lawyers and cannot suggest specific wording - nor would we dare. We have pointed out some reforms which are required and perhaps they can be handled through primary legislation or ministerial regulation in most cases. Nevertheless, the committee's legal advisers would tell it whether that would be compatible with the Constitution or if changes in wording are required.
I thank the committee for taking our submission. We made it as quickly as we could and we would be pleased to take any questions.
That is a professional presentation and the document which clarifies and synopsises it is also very helpful.
The committee is somewhat curtailed and restrained by the fact that this is a committee on the Constitution. I gather from the submission that Mr. Langford would like to see constitutional change because the common good - as set out in Article 43 this means the general public - is not benefiting from it. I also gather that he would like to see legislative change. Is it a fair assessment to say that he seeks a combination of both?
Mr. Langford
I must walk on eggshells because, as I said, we are not constitutional lawyers or lawyers to any degree. However, in examining the Constitution, our first view is that, as implemented, the common good seems to be left in the background while the rights of the individual and private property seem to be on top. We feel that the rights of the individual and private property should be attended to only when it is consistent with the common good. Surely the common good must be the primary cause because it affects many more people. The way our legislation is used and interpreted by the courts does not reflect that. In legislative terms, the whole CPO process for arbitration is guided by 16 rules, which the arbitrators are obliged to take on board, six of which come from the 1919 Compensation Act, the other ten come from the 1963 Planning and Development Act. Clearly someone needs to upgrade all that because there are aspects of common sense which the arbitrators are precluded from taking into account which would benefit the State and those promoting infrastructure projects. Those sorts of things could be done in a manner consistent with the Constitution. Therefore, we suggest that the reforms we think are required could be enacted through primary legislation or statutory instruments. However, only a constitutional lawyer will tell whether they would be compatible with Article 43, which we think is sensible but is not implemented well.
Mr. Langford also mentioned planning chaos, an issue which was raised by the Royal Institute of Architects in Ireland. The system of applying for planning, including the delays with pre-planing consultation, dealing with the local authority, objections, and An Bord Pleanála, can take two to three years for some developments. Does Mr. Langford have any quick fix solutions?
Mr. Langford
We seem to have so many different stages and bodies involved and there appears to be a great deal of consultation. Therefore, anyone who wants to object to or stop a project, whether they are right or wrong, has many bites at the cherry. We believe that it is appropriate that anyone affected by a project has the right to make known his or her views on the project. However, once those views are known, someone with the common good at heart must make the decision. At the moment, one can end up going to a local authority, An Bord Pleanála, the High Court and even Europe and the process can drag on and on, and that may be for only an ordinary building project.
For some infrastructure projects approval is required from the local authority. For linear projects, such as the building of a major road, gas pipeline or electricity grid through several counties, all the local authorities may be involved as well as An Bord Pleanála, the High Court, Dúchas, the Health and Safety Authority, the EPA and the Department of Communications, Marine and Natural Resources. For anybody who comes to Ireland wondering how to get a project from A to B it can seem a bit of a minefield. That can be improved and simplified and this leads to the one-stop shop concept.
I thank the institute for its excellent presentation. Page 17 contains some of the key points in the submission. The overall view we are getting from submissions is that this issue can be dealt with under primary legislation, although we have not yet come to a conclusion on this. Has Mr. Langford any views on how we can encourage the release of development land onto the market? I fully accept that it should happen, but how?
With regard to rezoning, controlling the value of land and avoiding windfall gains, it was put to us by one of the groups - I know some of the delegation have been in business for a long time - that changing the price of land will not change the price of housing. The market determines the cost of housing and the demand and supply within the market decides what the purchaser will pay. They gave us an example of two sites beside each other, one of which is sold for €100,000 and the other for €500,000. If both of these are put on the market they will realise the same price. This is also true in general.
There are very strong views on both sides in this matter and we would welcome Mr. Langford's views on why a builder would accept less than the market will pay because he obtained the land for a lower value.
Mr. Langford
This comes into play if somebody is holding land. If somebody is encouraged to develop the land rather than holding on to it and creating scarcity, that will encourage people to make sure there is a reasonable market in place. If the zoning for land is frozen or subject to a time limit, that will encourage development. What concerns us most and where we come across this the most in our institution, however, is the sudden escalation in value of land close to which it is intended to put a road or a gas pipeline. One ends up having to pay more for the land because the value is inflated, but one gets the benefit of the infrastructure. Perhaps the land is rezoned for a better use afterwards. Once it is decided, for example, that there will be five potential routes, any value put on the land concerned for acquisition should be related to the value before those five routes were put on the table.
How does that relate to housing?
Mr. Langford
We are not experts in the supply of and demand for housing but it is clear that the purchasers are ultimately dealing in a marketplace. If the land is held and the supply scarce, the value in the marketplace goes up, but if there is an incentive to use the land so that its value is not lost, surely there must be a way for the public to take the land, perhaps in line with the principles in the Kenny report which has been mentioned a number of times in the last year or two as a possible way of improving things.
Do the witnesses think that capping land prices will reduce the cost of housing?
Mr. Paddy Caffrey
It is difficult for the institution I represent to comment on that because we are doers - we are the people who get projects done. Supply and demand in the marketplace is created by the lack of land available for housing. At a personal level I think that is what tends to keep prices up, as Mr. Langford has said. Our view is that making land available for infrastructural projects is good for the country. We must find a way of making that happen as effectively and speedily as we can. That is the essence of our position.
The report mentions the problems being faced with delays in infrastructure and planning. We are bottom of all the league tables, which I presume are both European and international. We are behind with delivery of motorways, railways and so on. Has the institute ever evaluated the economic damage and cost caused by the delays in planning, compulsory purchase of land and so on? Has it considered the economic downside of the cost to the taxpayer of these delays?
Mr. Paddy Purcell
We have not done an actual analysis but we do have members across all strata of society: in industry, in local authorities and involved in the construction process itself. It is clear that delays in completing infrastructure have a number of effects: they significantly push up the cost of infrastructure, for which the general public pays in the end, and delays in transportation infrastructure affect the competitiveness of industry. We have seen recently how the journey between Belfast and Dublin has been reduced by three-quarters of an hour because a new motorway was opened. That is an hour and a half saved by every delivery van travelling from Dublin to Belfast and back. There is a direct correlation between this and the final price to the consumer. From the points of view of all our members, delays in building infrastructure have a direct negative economic impact.
The problem of delays is already having a negative impact on the national development plan.
Mr. Purcell
Absolutely.
Does the institute have experience from other countries, particularly other European countries, in which the process is much quicker? I was in Portugal recently and there seems to be a much quicker way of delivering infrastructure, particularly roads. I know the institute deals with consultants from France and other places.
Would the one-stop shop concept be useful only for major projects? Would ordinary applications for house extensions and so on be left to the local authorities?
Mr. Langford
The projects for which it would be appropriate are what are currently termed critical infrastructure projects. A typical example of how things are done in other countries is to do with environmental impact assessment. The requirement for environmental impact assessment is guided by a European directive of 1997 and we implement this much more strictly than other countries in Europe. We must ask ourselves whether this is actually benefiting the environment at the end of the day. In certain cases is clearly is not. Professor Manuel Melis, when talking about the metro in Madrid, made it clear that within eight months of deciding to build a metro, they could be tunnelling. The experience here would be a timeframe many times longer than that. Other countries find it much simpler but they have to comply with the EU directives in the same way as us.
An example in constitutional terms, which was also a major issue for those who built the metro in Madrid, is that in common law in Ireland, a householder owns the property to the centre of the earth whereas in Spain, where there is no constitution, the ground under property is vested in the State. That is one clear difference.
I want to ask about the emphasis on integrated, sustainable land use rezoning. There is a general purpose zoning. Could pockets of land around developing areas be zoned in such a way that they can be used for a variety of purposes?
Mr. Langford
If something is zoned as residential or commercial, it can be restrictive and a development may not offer the best mix. We feel there should be a mechanism where, if someone comes up with an idea that is better for the community and environment, the zoning should be flexible enough to take on an integrated development that will give more flexibility to local authority planners and project promoters. That would achieve the best answer in the interests of the common good.
Mr. Purcell
Integration between modern, clean, high-tech industry and older polluting manufacturing industry also promotes sustainable development and would potentially allow people to live closer to their workplace. There should be an integrated approach to zoning rather than 500 acres for housing being zoned in one place with 50 acres for industrial development four miles away. This is outdated and outmoded.
That is an interesting point and should be taken on board.
I have always felt that engineers are clear and precise thinkers and the presentation reflects that. The core of the problem we face is whether we should recommend changes to the Constitution or if the aims that have been outlined can be achieved through legislation. To help us be clear, there are two aspects of the presentation to which I will refer. What is meant by a one-stop shop in relation to critical infrastructure and developments? The submission calls for the release of developmental land onto the market. How would that be achieved?
Mr. Langford
It is inappropriate that a development for an item of critical infrastructure should go through a local authority with a kick back to An Bord Pleanála - it is too critical. In almost every other country, someone listens to the public and the promoter of the project and then decides. A one-stop shop would achieve that. At present, it may also be necessary for someone proposing critical infrastructure project to deal with the EPA, the Health and Safety Authority and a Department and that can make it very confusing. As far as possible, for the different forms of infrastructure project there should be one jumbo approval so that everything is on the table and everyone gets a chance. A body under the authority of the Government decides the answer in the common good. This would streamline the process.
I understand streamlining but it could be argued that the body might have a great degree of authority which would impinge on personal rights as distinct from the common good. The balance might tip too much the other way. Could we establish a statutory body with this authority with an appeals mechanism beyond it?
Mr. Langford
There will always be access to the courts, the guardians of the Constitution.
Would this be separate from the courts?
Mr. Langford
Yes. We have also asked that the courts be prepared to handle this and prioritise it. We would not, however, see this one-stop shop taking over the responsibilities of the courts.
Would there be a separate division of the High Court to deal with appeals?
Mr. Langford
Yes.
What is development land release?
Mr. Langford
We are all aware of situations where development land has lain fallow for decades. It is a question of finding a mechanism to get that into play. At the moment, if a person feels it is to his benefit to sit on such land ad infinitum, it is not doing anything for the common good and there should be a mechanism whereby the person is discouraged from not developing it in the appropriate way, as per the development plan, or encouraged to develop it.
Would that be done through some sort of levy or tax?
Mr. Purcell
It would be very practical because there are two ways to encourage the use of development land. A zoning should last for only a number of years and the person who owns land with potential for development within that area will have no guarantee that the area will be zoned for residential or industrial use again once the initial zoning is exhausted.
There could also be some form of levy or taxation on a person gaining as a result of the State significantly increasing the value of that person's land. There should be an annual taxation on that increase which would encourage people, once the value has been pushed up, to feed it into the market as quickly as possible.
Should we do this through the Constitution or through legislation?
Mr. Purcell
As Mr. Langford said, we are not constitutional experts, we are doers. We see problems at present with doing certain things. We have pointed out what needs to be done and we imagine that the committee or the Attorney General would be able to get the advice of constitutional experts to see if those things are possible, such as a one-stop-shop for planning and a specialist division of the High Court, within the terms of the Constitution as it currently stands. Our limited understanding of the Constitution seems to give the State the right to delimit the rights of the individual if the common good is at stake. One would have to be an expert to know, given the case and common law precedents, if our recommendations could be implemented under the current Constitution. There may well be a need for a tweaking of the Constitution to enable these things to be implemented.
I thought we had concluded but I will allow Deputy Cuffe a quick question.
I apologise to the delegation for not being here in person; I watched most of their presentation upstairs. One of the main points they have been making is the need for a one-stop shop. Nonetheless, there is a principle in law of the right to appeal. I presume that if it is not possible to have everything encapsulated within this one-stop shop, the delegation would like to see the issue of time limits and times for deciding on cases examined. It would appear that is one of the huge problems with An Bord Pleanála and other agencies——
Mr. Langford
A political, statutory objective versus a mandatory timescale would very much be an issue.
Mr. Purcell
We would most definitely see the right to have recourse to the courts so there is actually an appeals process, for want of a better word. If there is a one-stop shop, individuals, if they really believe they have justice on their side, would have the right to go to the High Court.
Nonetheless there is an issue of resources.
Mr. Langford
I am glad the Deputy mentioned that as I was about to come to it. We are a small country with limited resources that has something like 80 planning authorities. The beauty of the one-stop shop would be to enable us to whip in the limited resources available in order to make expertise available as far as possible. That is very important.
Just to clarify, my understanding is that a one-stop shop is for critical projects of national importance, not for an ordinary extension to a house or whatever. Mr. Langford mentioned earlier the notion of a special division of the High Court. In the light of the Minister for Justice, Equality and Law Reform's proposals recently to bring a lot of serious criminal matters to the Circuit Court to speed things up, surely the Circuit Court would be more efficient and quicker in that task than the High Court?
Mr. Langford
It may be tiered, but the beauty——
I know Mr. Langford is not a liar but normally one can wait for months and sometimes years to get into the High Court whereas the Circuit Court can be accessed within maybe three to six months.
Mr. Langford
I understand that but there are two points to be made there. First, we are talking about major, critical infrastructrual projects. Second, the problem with going to the Circuit Court is that somebody then has the right to appeal to the High Court. At least if one goes straight to the High Court the only outlet for appeal is the Supreme Court.
Even higher up.
Mr. Langford
At least it shortens the number of steps.
I thank our guests very much for a very interesting presentation.
Sitting suspended at 2.53 p.m. and resumed at 2.56 p.m.
we will now resume in public session. The next group comprises the Irish Traveller Movement and Pavee Point. They are represented by Ms Sinead Lucey, Mr. David Joyce, Ms Rosaleen McDonagh and Mr. Martin Collins. You are very welcome to our committee. We have already received your written submission which we have studied. I remind you before we begin that members of the committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee. We will allow our guests approximately six to eight minutes to synopsise the report they have submitted - there is no point in reading through it all - and the members will then ask questions. I seek a precise synopsis of the points the delegation wishes to make, followed by questions and answers.
Ms Sinead Lucey
I will speak first about the submission made by the Irish Traveller Movement and Pavee Point. We had the advantage before making our submission of seeing the submissions of other groups, including CORI, the ICCL, Threshold and the Simon Community. I took the opportunity in the submission to endorse the submissions of those groups. When making our submission we wanted to place it in a particular Traveller context while agreeing with the broader points that were made by those groups.
Our initial point regarding the existing constitutional regime, including Articles 40 and 43, is that although there is a provision that allows the State to interfere with private property rights in the interests of social justice, it is all very well to have that principle enshrined in the Constitution but it simply is not effective when it is not obligatory on the State. The question is how to force the State to look at the common good and give meaning to the principle of social justice.
After considering this point we feel that the most substantive way of doing that would be to create a right to accommodation. When discussing accommodation we were very aware that in Traveller culture accommodation can be a very loaded issue because it is often equated with housing and that simply is not sufficient to address the issue of Traveller accommodation. We must be aware of the fact that Travellers traditionally have pursued a nomadic way of life and consider how that could be accommodated as well. It probably would be impossible to insert a bald right to accommodation in the Constitution as it could give rise to problems. For example, there might be a minimalist approach to accommodation which would reduce it to the idea of shelter and people would be put in hostels or somewhere similar. There has to be an interaction between the other property markets and the State which cannot be the only provider of accommodation. There could also be a problem of opening the floodgates to the courts to enforce the right.
Any right to accommodation would mean that the accommodation provided would have to be adequate and appropriate and could not be a minimalist version serving basic human needs. It would have to be aspirational and take in the particular needs of the people involved. We pointed out in our submissions that it is of particular importance to Travellers, taking into account their cultural background, and to other groups, such as the disabled or the elderly who might have particular needs. This is not purely a Travellers' issue.
We also pointed out in our submission that historically Travellers have tended not to accumulate property. They use land in a transient way that almost parallels the use of land by the settled community and sometimes it is seen as interfering with the right of the settled community but sometimes it can be complementary in that they use marginal tracts of land on a temporary basis. Nomadism should be recognised in any constitutional right to accommodation and the idea of appropriate accommodation should also cover that aspect of Traveller culture. The Housing (Traveller Accommodation) Act 1998 recognises that a variety of provisions is necessary to meet Travellers' needs. This should go one step further and in any consideration of property rights variety of provision for accommodation should be recognised under the Constitution, in particular incorporating the idea of nomadism.
Article 45 is a valuable guide to the idea of accommodation and Article 45.2 recognises that the "concentration of the ownership of property" could be detrimental to the common good. This concept, already enshrined in Article 45, could be teased out and perhaps given more substance in a constitutional reform. At the moment Article 45 is simply a guide for the Oireachtas and has no standing in any court. It is rather like the concept of social justice in that it can be ignored and nobody can enforce it.
In our written submission we pointed out some problems that Travellers have in regard to planning legislation, for example, transient presence on the land is not recognised under planning legislation. There should be more provision for granting temporary planning permission or transient planning permission that exists for a finite period. It would be almost impossible, however, to enshrine a code of planning within the constitutional regime - that is a matter for legislation. If there were a right to appropriate and adequate accommodation the planning regime would have to fall in behind that right. We call on this committee to look at the possibility of recommending a right to adequate and appropriate accommodation taking into account the special needs of certain groups in society, in particular Travellers.
You mentioned Article 45 which is the omnibus article referring to many socio-economic rights but they are not justiciable. Would you like to see that changed so that they would become more than a passing mention as in Article 45 and be incorporated with real powers in the Constitution, as a right rather than an aspiration?
Ms Lucey
If we are realistic about our aspirations we should look at Article 45 and decide what it really means and in that way tease out what substance can be given to it.
The distinction between accommodation and housing is well put and we have to bear this in mind because previous delegations have said that the right to shelter should be in the Constitution. Ms Lucey has extended that to the word "accommodation", for valid reasons.
In its written submission, and partly in the oral submission, the Irish Traveller Movement suggests going further than that to refer to an obligation "to ensure that accommodation is adequate and appropriate" and to protect against "arbitrary evictions". Is the Movement suggesting that those kind of words be used specifically in the Constitution?
Ms Lucey
If a constitutionally enshrined right to accommodation is phrased in the right way, one may not necessarily have to speak about arbitrary evictions because by definition if one has a right to accommodation one has a right to security of tenure and cannot be evicted. It depends on how it is worded and there would be room to include a due process of law. People may be evicted for all kinds of reasons but it should not happen if the concepts of natural justice are observed. However, it may not have to be articulated in that way.
Does the Irish Traveller Movement believe that the words "adequate and appropriate" should go in as well to describe the accommodation?
Ms Lucey
Absolutely, yes.
This is one of the first delegations to recommend something positive. Many groups have come before the committee and said there should be no change to the Constitution which may be honest but it is not very helpful. The Traveller movement makes the point that the right to private property is a higher order of right than the requirement of the State to pursue principles of social justice and the common good, and there is a definite hierarchy there.
Does the movement suggest that in Article 43.2 the phrase "The State, accordingly, may as occasion requires delimit by law the exercise of the said rights" should be changed to "The State shall as occasion requires" or is there a need for something as narrow as that? All the requirements in regard to social justice and the common good are discretionary for the State whereas these are guaranteed in the first part of the article and there is a visible hierarchy. Does the Irish Traveller Movement need to equalise that or turn it on its head?
Ms Lucey
I did tentatively draft an article on the right to accommodation. However I do not particularly want to bring that out as it could lead us down a different route. If an equality between private property and the right to accommodation is created, the issue of what is mandatory on the State falls away because there is a substantive right to accommodation. The idea of the State's discretion in terms of social justice is not relevant any more as it is mandatory. One has the right to accommodation and the State has to do something about it. I am not saying what they have to do. Does that answer the Deputy's question?
Yes, it does. That was a helpful answer.
I, too, would like to thank the delegation for the presentation and for attending to elaborate on it.
One of the issues that the committee has been looking at is the possible use of CPO by local authorities for the purpose of acquiring land for a range of issues. It is already used for road development but they have not up to now used it for housing. We are considering that if local authorities had the power to use CPO for the provision of essential services, would that considerably assist the Irish Traveller Movement and Pavee Point in the provision of halting sites? We all know the difficulty and the controversy there is every time a local authority tries to acquire land for a halting site when all hell seems to break loose. Is that one area of interest to the group? If so, then the committee could make recommendations on it.
Mr. David Joyce
It is certainly something we have looked at in the past in terms of local authorities providing Traveller specific accommodation in their areas. We would have thought that under the Housing (Traveller Accommodation) Act there is certainly potential for local authorities to identify block parcels of land that will acquire the implementation of these Traveller accommodation programmes. Combined with such programmes, clearly identifying where locations for Traveller accommodation would be provided and with increased powers of CPO to implement that programme, it certainly has progressed the provision of the Traveller accommodation over the last five years.
While the local authorities have adopted some of the obligations under the Housing (Traveller Accommodation) Act and identified certain needs, they have not taken positive steps to implement the programme. An increased power in the CPO scheme to block parcels of land for the provision of Traveller accommodation would certainly be a major step in its implementation. As the Deputy said, it is used in the same way as block parcels of land are bought to provide for roads. Where a local authority has a Traveller accommodation programme, it could work within that mechanism.
This would significantly assist the concept of the common good. How can it be for the common good that people with children are living on the side of the road? Issues such as child welfare, motorists and road users also need to be resolved because they too come under the heading of the common good. This fits comfortably into some of the issues with which we are dealing.
I was thinking out loud as to whether the difficulties Travellers face is more to do with the priorities of local authorities or the need for constitutional change. The core of the issue lies with the priorities that local authorities make. The next submission to the committee will state that we should insert the right to shelter and housing into the Constitution. Am I correct in saying that the Irish Traveller Movement and Pavee Point are stating that we should enshrine the right to housing in the Constitution?
Ms Lucey
Basically at the moment it depends on the priorities and political will. Whereas the Constitution should be an eternal instrument that enshrines higher values that are not subject to political winds, it would be possible to put it in the Constitution.
I welcome members of the delegation and thank them for their detailed and comprehensive presentation. I am sure they will not disagree with my view that the Traveller community has been failed by both the Constitution and the State since its foundation. This failure has brought about the situation where we have chaos in many towns for the Traveller community.
In Ennis, County Clare, there has been enormous tension between the local community and the Traveller community. How can the provision of urgently needed Traveller accommodation and the traditional pattern of movement of the Traveller lifestyle be reconciled? The cultural tradition of a community that moves from location to location was acknowledged in the presentation. The needs and rights of the Traveller community have been neglected in the present laws and the Constitution. Any improvement that can be made in that regard will be beneficial.
However, the Irish Traveller Movement and Pavee Point have certain responsibilities for their community. In many respects, part of the tension that has developed has been because of some of the activities of the Traveller community. The constitutional issues can be improved and we should look at some provision where we can eliminate the hardship, depravation and chaos that has been experienced by the Traveller community.
To comment on whether the right to adequate accommodation and shelter should be reflected in the Constitution, from our perspective we would say yes. As the Constitution reigns supreme, whenever there is a conflict or incompatibility between legislation and the Constitution, it is the Constitution that prevails. That is why we suggest that in the committee's deliberations on proposing amendments to the Constitution we would like to see a clear and explicit recognition of people's rights, particularly Travellers, to adequate and appropriate accommodation. On foot of that, one could develop appropriate legislation that would in some way give a means to the implementation of the principle that would be contained in the Constitution. That is why we suggest that the Constitution is the appropriate vehicle for this.
There should be a clear and explicit recognition of the particular needs of Travellers as a nomadic ethnic group in this society. There have been precedents set in other jurisdictions such as Romania and Hungary. In other states' constitutions there is explicit recognition of the particular needs, culture and identity of Roma gypsies. There is no impediment to having it in Ireland.
On the face of it, the legislation we have, such as the Housing (Traveller Accommodation) Act 1998, might seem decent. We signed up to it in good faith thinking that it would address our accommodation crisis. However, it has not done that. If anything, the situation has got worse. In particular, the introduction of the Housing (Miscellaneous Provision) Acts has compounded the situation. The legislation is couched in such language that it makes it useless and totally ineffective. Local authorities are empowered by legislation but not necessarily obligated. People play around with words. This is the way our present legislation is formulated. Local authorities are not empowered. This means they are not obligated to implement five year Traveller accommodation programmes. That needs to be changed. If legislation gave an explicit and clear commitment that this is a human right, then that would force local authorities to get off their backsides to deliver and implement the accommodation programmes.
I thank the delegation for its presentation. I am sorry I was not present but I will read the Official Report on the submissions. I notice the presentation suggested that if there was a right to housing, that housing should not be bad or merely of the minimum standard required. It was mentioned that it should be measured against affordability accessibility, location, etc. This morning, the Royal Institute of Architects of Ireland contended that it is very important that our housing policy should include social integration. Do the delegates regard this as important in respect of accommodation provision for the Traveller community?
The Royal Institute of Architects of Ireland stated that instead of furthering social integration we are moving in the opposite direction. It was very disappointed that there was social segregation.
I, too, welcome the delegates and thank them for their submission. I represent Rathkeale on Limerick County Council, where 45% of the population are from the Traveller community and 55% from the settled community. There are strains between both communities but the underlying trend is one of considerable tolerance on the part of both communities for each other. There is relative harmony between them and Rathkeale has one of the lowest crime rates of all the towns in County Limerick.
Members of the Traveller community in Rathkeale occupy all the social strata - some are very rich and others are very poor. The myth being bandied about by some regarding social integration is totally false because members of the Traveller community have their own unique culture, as has the settled community. I notice the difference all the time. There are good and bad elements in both communities and there are aspects of Traveller culture I would love to see the settled community adopt, and vice versa. I always posit Rathkeale to other communities as a model of a town characterised by understanding and tolerance. There is not much communication between both communities because the Traveller community wants to remain apart, and the settled community respects this. I am very friendly with some members of the Traveller community and drink with them and do not have a problem.
The Deputy does not have a problem with drink?
In other places, the segregation of the two communities is very pronounced. This has compounded the problems that exist because the Traveller community now feels it is not accepted in certain areas, thus generating resentment, and its members react in different ways as a result. This problem has developed over decades and until we begin to understand its nature and deal with it in conjunction with the leaderships of both communities we will never get to grips with it.
That is a very valid point, although the definition of segregation by the Royal Institute of Architects of Ireland was broader than that applied by Deputy Neville.
In Rathkeale, we built 16 houses where the Traveller community wanted them. Nobody objected and everybody was delighted because there was a need for them.
We will allow the Pavee Point group to conclude.
Mr. Joyce
There are extremes of poverty and wealth among the Traveller community but the majority suffer from poverty. Rathkeale is probably unique. A point that must be considered, which we tried to raise in our presentation, is that the control of property is brought about through planning legislation, which is certainly detrimental to the nomadic element of the Traveller way of life, and consequently there seems to be a dependency on the part of the Traveller community on local authorities to make provision for it.
What Travellers can and should do themselves has been identified. In recent years there has been a tendency, particularly among Travellers who have the financial wherewithal, to try make provision to accommodate their nomadic way of life by purchasing small strips of land of which they have sole use. The planning laws are about sedentaries and settlement and the acknowledgment of this and of land use in planning legislation prohibits Travellers who engage in self-help and take the initiative to purchase property so they can resource their nomadic way of life.
The option to purchase strips of land is open to very few Travellers. The majority of those who wish to preserve the nomadic way of life are dependent on the making available of public land - a point that needs to be acknowledged by local authorities. Again, planning legislation prohibits the making available of public land and even when a local authority wants to be accommodating it finds that it is restricted by it.
One will find that the majority of members of the Traveller community are segregated from the settled community in local authority housing. Local authority housing itself is segregated from other sections of society. One will find that Travellers are very much socially segregated - they may be integrated with a section of society——
My experience is that Travellers want to stay in their own groups.
Mr. Joyce
I was about to address that. I am just making the point that they are integrated with a section of the settled community which is itself segregated from other sections of the settled community. Other families certainly want to remain with certain cultural or extended family groupings. The development of Traveller - specific accommodation - halting sites or group housing schemes - serves as a recognition of this. The circumstances in Rathkeale are unique and there are many Traveller families there who have the means to make provision——
They need social housing.
Mr. Joyce
They have made decisions as family units to maintain a degree of separation from the settled community. There is no simple answer. In practice, the majority of Travellers have been integrated with the settled community but I reiterate that that section of the settled community is itself segregated from other sections through housing and planning legislation.
I thank the delegates for their presentation.
Sitting suspended at 3.28 p.m. and resumed at 3.32 p.m.
We will now proceed ahead of schedule, if that is all right with the deputation. I welcome JeromeConnolly of CORI and Miss Margaret Burns. Before we begin, I must remind the visitors that, while members of this committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. You might make a short presentation, after which we will have a question and answer session.
Perhaps I might make one correction. I do not represent CORI. Until last year I was general secretary of the Irish Commission for Justice and Peace, and my colleague, Margaret Burns, worked closely with me until recently. She is on the Council for Social Welfare. Our involvement in this matter goes back to the publication of the report of the Review Group on the Constitution. In that capacity, the Irish Commission for Justice and Peace made two related submissions in 1997 to the all-party committee in the area of socio-economic rights. Essentially it developed a detailed critique of the review group's rejection of the proposition that socio-economic rights be included in the Constitution. Since then, we have followed the issue in various ways, one of particular relevance in this connection being monitoring and participating in the examination by the UN committee on economic, social and cultural rights of the first and second Irish national reports under the UN Covenant on Economic, Social and Cultural Rights in 1999 and last year.
There is no need to read out the whole submission, since members have already studied it.
What I have to say assumes that. Our basic proposition is that the Constitution must be amended to include a right to adequate shelter and habitation and that that requires three specific elements which we already mentioned in the submission. We assume that the fundamental proposition in human rights theory and practice is that the majority of all rights must be interpreted in relation to their impact on the exercise and enjoyment of other rights and that the right to property cannot therefore be interpreted as absolute. We also assume that all people have a basic need for and right to habitation, shelter and housing, those being essential to human flourishing. Adequate shelter and housing are essential to the enjoyment of other rights, including health, education, the right to marry and found a family, the right not to be discriminated against and the right to a healthy environment.
The right to shelter is already internationally recognised in a wide range of international human rights instruments and texts, starting with the Universal Declaration of Human Rights. A particular example is the UN Covenant on Economic, Social and Cultural Rights to which I have already referred. Also relevant is the UN Convention on the Rights of the Child. Ireland is a party to both. In its concluding observations following its examination of the second Irish report last year under the Covenant on Economic, Social and Cultural Rights, the UN committee strongly reiterated the recommendation which it had made following its examination of the first Irish report in 1999 that Ireland "incorporate economic, social and cultural rights" in any amendment to the Constitution as well as in other domestic legislation. In that context, it pointed out that, irrespective of the system through which international law is incorporated into the domestic legal order, whether it be a monosystem or, as in our case, a dual system, 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.
As pointed out in my submission, the vast majority of Irish people either own or rent property in the form of housing. Housing is increasingly perceived as a capital asset. However, the role of housing as capital cannot be treated in isolation from its primary function in meeting the basic human need for shelter, privacy, stability, protection and a space in which to grow and develop. The Constitution was drafted at a time when democratic states faced the threat of totalitarian ideologies against which the individual appeared powerless. While there were obviously other reasons too, it appeared at the time that it was imperative to guarantee the individual's right to property as a protection against the undue and tyrannical encroachment of the state. That remains a compelling justification for maintaining and upholding such a right.
However, the primary function of this type of property in meeting the basic human need for shelter, privacy, stability, protection and a space in which to grow and develop, is not addressed by the existing wording or scope of Article 43. Apart from anything else, as we have pointed out, the individual must succeed in acquiring property in the first place before the constitutional protection in the area becomes relevant. Historically, arguments for a right to property reflected the perception and to a large extent the reality that property represented the work, initiative and investment in time of the individual owner. Today, however, society is enormously more complex and interdependent and the value of property reflects to a much greater extent the cumulative work of many generations and the contribution of many sectors of the state itself, apart from that of whomever happens to be the legal owner at a given time.
In a totally unregulated, free-for-all market economy, the rezoning of privately owned land by a public authority is likely to enrich some while impoverishing others in so far as it may greatly increase the cost of land for housing. In human rights terms, that means that it is liable to have a discriminatory effect unless adequate countervailing mechanisms and precautions are enforced. For that reason among others, it is reasonable politically and administratively appropriate - and, we would argue, ethically desirable - that the constitutional guarantee of property rights situates rights claims arising from the use, inheritance, accumulation, disposal, expropriation and purchase of property in the wider context of the common good, of consideration for justice in public policy and of other rights, such as those to shelter, privacy, family and so on.
Present constitutional provisions give no explicit right to shelter or housing. The report of the review group on the Constitution argues with reference to the right to food, shelter and clothing that, should anyone fall below a minimum level of subsistence "the Constitution appears to offer ultimate protection through the judicial vindication of fundamental personal rights such as the right to life and to bodily integrity". That is on page 236. From this it is apparent that even the Constitutional Review Group itself was not certain if such a protection definitely exists. If it is wrong that there might be such a protection, then there is no protection and even if it is right, this protection, we argue, should be made explicit.
How might the lack of a clear and enforceable right to shelter and housing in the Constitution be addressed? We have proposed a three pronged approach. The reason for saying that three complementary steps should be taken is that there are in question here several matters of sufficient importance to human flourishing to merit distinguishing them in the way we have suggested. The State's obligation to protect the individual from destitution, gross physical deprivation or lack of the necessitates needed for a decent minimum existence is more immediate, direct and compelling than its wider obligation in the matter of housing and all its possible ramifications. Equally, the State's obligations in matters of property cover many complex aspects of property which do not directly impinge on matters of shelter and habitation, so we think it makes sense to carefully distinguish these.
The right to property in the Constitution should be qualified with reference to the specific social justice and social policy objective of respecting, protecting and promoting the needs of the family and individual in regard to shelter and housing. As noted, the Constitutional Review Group made a general recommendation that the Constitution should expressly provide that property rights can be qualified or restricted by legislation where there are clear social justice or other policy reasons for doing so. Although the review group listed several such reasons, the right to housing and shelter was not among them even though, in its opening discussion of the ownership of property, it noted that home ownership is the most common form of property ownership in Ireland.
In addition to amending the wording of the existing right to property, the right to housing per se should be addressed in two separate articles. The first of these, as we have suggested, should be a general article stating the right of any person in a situation of extreme hardship to the satisfaction of his or her basic human or material needs, being, as a minimum, the right to shelter, food, clothing and basic medical care. This has been specified in a relatively recent recommendation of the Committee of Ministers of the Council of Europe, recommendation No. R2000, No. 3, which urged member states of the Council, which includes Ireland, to establish a legally enforceable right to a basic minimum of subsistence, including shelter.
The second article should specifically enumerate a right to adequate shelter and housing, utilising, among other things, the phraseology now current in the United Nations, that is, by defining the State's duty to respect, protect and promote the right to housing and shelter in the sense in which the words "respect", "protect" and "promote" have been expounded by the UN. As we have noted, such an article could be drafted using appropriately qualifying phrases already in the Constitution. This can be followed up in more detail in the submission already made to the committee by the Commission for Justice and Peace, contained in this document.
We appreciate that the committee is dealing at this point only with the right to property and shelter, and not the question of socio-economic rights in general. However, we consider it appropriate and helpful to draw the attention of the committee to one major development at UN level regarding this category of rights, namely, the division into a threefold structure of obligations. This development helps not only to clarify the nature and scope of the right to shelter, but also to resolve some of the difficulties and objections which are generally raised against the enforceability of socio-economic rights.
It is well established by the UN Committee on Economic and Social Rights that the obligations imposed on a state, such as Ireland, which has ratified the covenant are threefold. The duty to respect is a duty on the state to refrain from anything that would prevent an individual the specified right. It is, therefore, primarily a negative obligation and does not prima facie require the provision of resources. The duty to protect is a duty on the state to protect the individual’s enjoyment of the right against the actions of third parties, such as other individuals or organisations. This is also primarily a negative obligation. The duty to promote and facilitate is a positive obligation but it is neither absolute nor open-ended. It is qualified, for example, with a reference to the resources available. The UN recognises in its jurisprudence that each state has what is called a margin of discretion in deciding how to discharge its duty in the light of particular circumstances.
Finally, the UN approach to each socio-economic right covered under the covenant, within the general obligations and content of the state and the content of the right in question, distinguishes what it calls core elements, which are the absolute irreducible minimum content which would be, for example, in the case of the right to help, an obligation to provide at the least basic medical assistance in the case of an emergency.
We do not wish to elaborate any further because we do not wish to stray too far from the specific issue of the right to property. However, if our proposition is correct in that one cannot deal with the right to property without addressing, inter alia, the cross-over right to shelter and housing, then since the arguments against or for socio-economic rights in general would come into play, we wish to signal that there is a close connection here, starting with the right to property, but opening into a wider area.
Thank you Mr. Connolly. We will now proceed to questions. I call Deputy O'Sullivan.
I welcome the delegation. Its paper is thought-provoking, especially where it distinguishes between the two aspects of property in terms of its function for providing shelter and capital. It is an interesting way of approaching the issue.
I understand you are recommending three measures in relation to the Constitution. You refer to the need to respect, protect and promote rather than provide the needs of the individual. It is an enabling approach. However, by proposing the insertion of an article which specifically enumerates the right to shelter, am I correct to assume that you consider a stronger obligation should be imposed on the State to ensure that people have shelter?
The previous delegation - the Irish Traveller Movement - suggested that the housing approach was insufficient to cover their accommodation requirements. They prefer the word "accommodation", although it is possible that the word "shelter" would cover both. I would appreciate your comments on that aspect.
On the question of the use of the word "housing", I refer the committee to the relevant general comment of the UN Committee on Economic, Social and Cultural Rights on the right to housing. I cannot quote chapter and verse but I am 99% certain that within that it would also address the issue raised by Travellers. It refers to housing being culturally appropriate housing. This would cover the situation regarding Travellers, nomads and so on. In view of this I have no doubt that a right to housing would be broad enough to encompass that point.
In the past few months, the Minister for Justice, Equality and Law Reform has trenchantly expressed his views as to why he does not believe there can be enforceable socio-economic rights. We would differ from him in that respect, although he has set out some of the main objections very cogently and we accept they cannot be lightly dismissed. We believe there is a middle ground. Clearly social and economic rights require a significant positive allocation of resources.
Let me make two points. First, in practice, many civil and political rights also require resource allocation. Second, the importance of the division of the State's obligation into three elements illustrates, among other things, the fact that significant aspects of social and economic rights, specifically the right to shelter and housing, can reasonably be described as being similar to civil and political rights in the sense that they entail primary negative rather than positive obligations. To that extent, even if there was an insuperable problem in regard to resources, other significant aspects can be legally enforced without leading to this particular problem.
In regard to the question of resources, it is not appropriate for a constitutional statement of rights to go into any great detail. Constitutions are amended only rarely and the rights section even more rarely. Rights must therefore be stated at a sufficiently general level to allow for flexibility, for the courts to be able to reinterpret them in the light of changing realities and perhaps of eventualities which we cannot even anticipate at the moment.
Looking to the UN, for example, there is quite a degree of guidance in regard to the specifics of what would constitute a reasonable discharge by the State of its obligation under, say, a right to housing. I do not know if I have time to go into it. If necessary, I can give references or follow-up afterwards. This crops up not just in Ireland. Every time a state is examined at the UN it has cropped up. It has had to be considered by countries such as Norway and Finland. Finland in particular has included a right to housing in its constitution. In this connection it is useful to draw attention to another recommendation of the UN committee, that is, that the Irish State should develop what it called a rights-based approach in social policy, particularly in the national anti-poverty strategy. Such a rights-based approach does not mean creating a whole clatter of legally enforceable rights. It means building in a concern for rights in the nuts and bolts of, for example, the anti-poverty strategy or the health strategy, leading on to the definition and establishment of what are called benchmarks and indicators. A simple one would be whether a state has, say, a housing strategy or a health strategy in the first place, whether it is based on adequate research into the size, nature and extent of homelessness and what steps are being taken to address that, what targets have been set and so on. That involves a fairly detailed, technical, half-economic, half-political or part-economic, part-political, part-legal discussion. I would simply signal to the committee that much work has been done and is ongoing in this area to give increasing concreteness and realism to the concept and content of the main socio-economic rights. It is not a question of taking a leap in the dark and saying we want an absolute right which, in theory, would allow someone to go to the courts and be given an open ended commitment.
Let me refer to another right in the Constitution which involves the duty on the State to provide for primary education. Primary education is not defined in the Constitution. The Constitution does not define, for example, the age to which this right should be provided. It does not go into details such as the pupil-teacher ratio or the level of per capita funding and so on. This is all left to the State and its governments to deal with. However, since the right is there, it is open to people such as Mrs. Sinnott to appeal. They may or may not get an answer they like. The point is that the courts are in a position to legally enforce socio-economic rights. It is extremely important to emphasise that by making socio-economic rights legally enforceable the aim is not to get the courts to replace the Government or the Legislature but to ensure there is a safeguard in the event of failure by a particular government of this State to live up to its obligations.
I would like to bring in other members again.
I apologise.
Are there any further questions? I thought some members were offering. Do you wish to conclude? We need to conclude this session soon.
Do you have those documents?
Is that all?
Yes.
Thank you for your presentation. The committee will analyse it as it does all presentations. Thank you very much for attending.
There is one item we can circulate to the meeting, that is, the text of the Council of Europe recommendations. It consists of only two pages. Would that be useful?
Yes. Is there any other business for the committee?
I will not be in a position to attend the hearings next week. There are many common threads running through these submissions.
Does the committee wish to go into private session or is it in order to continue in public session?
It is in order to continue in public session. I suggest that we draw up a matrix or list of the common themes running through submissions. There are many very clear issues such as site value taxation or specific articles that should be amended. It would be good to have some kind of system by which to cross-check not only the submissions made in the form of presentations by delegates but also the written submissions. It would be a good way of sieving through the vast amount of background material we have. It is something we can come back to but I wanted to flag it as I will not be here next week.
The joint committee adjourned at 4 p.m. until 10.30 a.m. on Tuesday, 22 July 2003.