That is not my intention, Chairman. In preparing for this meeting, I reflected on the healthy disrespect which lawyers and politicians have for one another. Lawyers are frequently accused of being excessively verbose and prolix, while politicians are often accused of being preoccupied with sound-bites and spin over substance. I hope neither the presentation nor reception of this morning's proceedings will fall into those categories. However, I will open with an unashamed sound-bite: "If it ain't broken, don't fix it". That, in essence, is the nub of our submission this morning, but in using that phrase, I do not mean to suggest that there are not societal problems in connection with property rights. It is very clear there is a wide range of problems and issues confronting our society at this time in that arena.
What I mean to convey is that, in our view, the Constitution has worked rather well in this general area and generally strikes an appropriate balance between the rights of the individual property owner, on the one hand and, on the other hand, the rights of the community or society at large. Furthermore, there are serious practical and ideological reasons whereby a move to amend the Constitution at this time would be premature, fraught with danger and would represent an insult to the role of the judicial branch in the separation of powers, under which our model of democracy works.
Bearing the Chairman's admonition in mind, I wish to refer the committee to selected features of our written submission, of which additional copies are available if required. Paragraph 6 of our submission refers to the relevant constitutional provisions. Article 40.3.1° states: "The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."
That is the general, unenumerated rights provision which does not refer to any particular case. Property rights are referred to in subsection 2° of the same Article. Property rights are more extensively considered in Article 43, which I do not propose to read in full, save to say that, while it protects and recognises the institution of private property, it makes it very clear that the institution can be regulated by the principles of social justice and, under Article 43.2.2°, may be delimited by law with a view to reconciling the exercise of property rights with the exigencies of the common good.
Our submission states, at paragraph 8, that certain propositions are self-evident from the text of those articles. Property rights are simultaneously acknowledged and protected by the Constitution, but the rights are capable of limitation by the broad principles of social justice and the exigencies of the common good. The submission goes on to make a somewhat academic point about the partly overlapping nature of the two articles, which need not trouble the committee at this stage.
At paragraph 12, we make the important point that, at times, the superior courts in this jurisdiction have demonstrated a willingness to intervene and to strike down legislation on the basis that it constitutes an unconstitutional interference with a citizen's property rights. However, the celebrity of the occasions on which this has been done illustrates an important feature of case law on property rights: most intrusions into an individual's property rights which have been challenged, have been challenged unsuccessfully. The two notorious examples, so to speak, are the Sinn Féin funds case - now of almost 50 years vintage - and the more recent decision of 20 years ago in Blake v Madigan in the Rent Restrictions Acts cases.
Those cases are at the extreme edge of the spectrum which, in many ways, constituted an effective confiscation of property or were, at least, tantamount or analogous to that. Unless something equally draconian is proposed by the committee or is on the legislative agenda, it is not immediately clear from the case law - we go on to develop this point in our submission - what is, in fact, certain to fall foul of the existing constitutional provisions. At paragraph 14, we quote Professor Casey, my colleague in the UCD law faculty, who stated: "Legislation will not constitute an unjust attack on property rights if passed to reconcile the exercise of those rights with the requirement of the common good and if consonant with the principles of social justice."
In particular, we refer and strongly rely on the decision of the Supreme Court three years ago in respect of the Planning Bill 1999, which was referred to that body by the President in accordance with her powers, under Article 26 of the Constitution, to refer a Bill to the Supreme Court for a determinative view on its constitutionality. As the committee will, no doubt, be aware - because it involves the most recent important piece of intrusive legislation in the property rights sphere - the planning Bill made unprecedented inroads into the rights of property owners.
Without going through the detailed legislative scheme in the short time available to me, it proposed a social housing system whereby, in various circumstances, developers would have to hand over either undeveloped land, or land with houses already completed, to a local authority in part return for a grant of planning permission in the first place. It is important to note that the Supreme Court was without any apparent strain in holding that legislation to be constitutional on the basis of the Article 26 reference. That is clearly a landmark decision, being the most important recent decision, which underlines my central opening point - "If it ain't broken, don't fix it". The fact that the most recent intrusive piece of legislation in relation to property rights was upheld by the Supreme Court begs the question as to what amendment is required and for what purpose it is required.
At paragraph 16, our submission quotes the Supreme Court as recognising the provision of community housing as being an objective of particular importance and stating its view that the measures set out in the Bill were:
. . . rationally connected to an objective of sufficient importance to warrant interference with a constitutionally protected right and given the serious social problems which they are designed to meet, they undoubtedly relate to concerns which, in a free and democratic society, should be regarded as pressing and substantial. At the same time, the court is satisfied that they impair those rights as little as possible and their effects on those rights are proportionate to the objectives sought to be obtained.
I suggest that the committee should bear this important landmark decision in mind in its deliberations.
In summarising the historical jurisprudence of the courts, paragraph 18 of our submission states that the concepts of "social justice", "common good" and "unjust attack" are broad and flexible notions that effectively amount to an inbuilt balancing scheme which is provided in the existing constitutional text.
At paragraph 23, we go on to examine property rights, particularly as they occur in the sphere of licences or permits - more by way of abstract property rights than by physical rights of ownership over land. It is, perhaps, in this context of planning permission or zoning, where more abstract issues of property entitlements arise, that the committee may ultimately find much of its concerns. We regard the jurisprudence of the courts in this area as of particular note from the perspective of the committee. We submit that challenges to variations in laws or legal schemes regarding licences or permits which have had direct implications for the financial value of a particular asset, whether it be land or another form of real property, have been mainly unsuccessful. In the Hempenstall case Mr. Justice Costello states property rights arising in licences created by law, enacted or delegated, are subject to the conditions created by law and to an implied condition that the law may change those conditions. Changes brought about by the law may enhance the value of those property rights or diminish them. Mr. Justice Costello went on to state:
A change in the law which has the effect of reducing property values cannot in itself amount to an infringement of constitutionally protected property rights. There are many instances in which legal changes may adversely affect property values (for example, new zoning regulations in the planning code and new legislation relating to the issue of intoxicating liquor licences) and such changes cannot be impugned as being constitutionally invalid unless some invalidity can be shown to exist apart from the resulting property value diminution.
That approach was followed recently in the context of taxi deregulation whereby the capital value of a taxi plate was, in effect, abolished overnight. A challenge on the grounds of interference with constitutional property rights was unsuccessful as it was in the context of a change to the milk quota regime which was the subject of Maher v. The Minister for Agriculture and Food. We state at the outset that the constitutional jurisprudence of the courts establishes that decisions in respect of planning permission and zoning are generally non-compensatable. There are constitutional triggers to the entitlement to compensation under the compulsory purchase scheme and we quote that towards the end of paragraph 27 of our submission. The Supreme Court stated clearly in reference to the Planning and Development Act that there can be no doubt that a person compulsorily deprived of his or her property in the interest of the common good should normally be fully compensated at a level equivalent to at least the market value of the acquired property. This is the standard position and there has been no attempt to interfere with that orthodoxy.
At paragraph 30, we say in conclusion in addressing the jurisprudence of the superior courts that we believe the superior courts have struck a generally appropriate balance in this area between meeting the needs of society at large on the one hand and of the private property owner on the other. We attribute the generally intelligent and appropriate decision making of the superior courts to the far-sighted equivalence with which the property rights provisions in the Constitution were drafted in the first place.
I do not wish to trespass unduly on the committee's time as members will have had the opportunity to read section B of our submission. In it, we acknowledge that property rights and this general area are causing severe societal problems in terms of the cost of housing and infrastructure. Democratically elected Deputies and Senators will be far more familiar with those problems from their constituents than we will. We say, in short, that no link has been suggested between the Constitution and the societal and social problems in the area of property rights. As a starting point, we ask rhetorically what is the panacea that has been stymied by the obduracy of the property rights provisions in the Constitution. What legislation which promised to be the great salvation and solution to society's problems has been struck down by the Supreme Court? We ask these questions rhetorically as they cannot be answered in the affirmative.
Legislation, by its very nature, can have important effects and consequences in this area. Planning law and zoning decisions have an immediate effect on the supply of land, the demand for it and its price. Policy making by local authorities and An Bord Pleanála, and legislative change governing the way they make decisions, have important roles to play, but no case has been made to our satisfaction to amend the constitutional provisions which underpin legislation. Far from acting as an impediment or break on social or legislative reform in the context of property, we say in paragraph 40 of our submission that the recent Supreme Court decisions in terms of the Planning and Development Act paves the way for future legislative innovation. It gives such innovation the "all clear", provided it is proportionate and in accordance with the principles of social justice.
In section C of our submission we raise the general concerns we - the legal profession - have as conservative guardians of the Constitution with regard to any amendment of it. We say that in the 76 years of its operation Bunreacht na hÉireann has served the State in its present form with minimal amendment. A compelling case must always be made before its amendment is seriously contemplated. Constitutional amendment is a legitimate and lawful response to a problem which has developed and crystallised. It is a lawful and legitimate response to a decision of the Supreme Court which purports to interpret the existing text in a way which the majority of Members of the Oireachtas and of the people find is not to their liking. By way of referendum, the Oireachtas and the people are entitled to amend the Constitution if they do not like a decision of the Supreme Court. We have seen this happen in respect of the sequalie of the X case. The referendums on the right to travel and the right to information in effect reversed the Supreme Court decision.
Without involving ourselves in that substantive issue, we say that no problem has yet crystallised in this case. While there are weaknesses in the present text, they are superficial and relate to the sort of wording in use in 1937. Such weaknesses do not appear to pose a significant problem in terms of the enactment of legislation in the current context. A different wording was suggested by the Constitution review group in its report of eight years ago, but at paragraph 46 we state the wording drafted was suggested in advance of and without the assistance of the Planning and Development Act decision of the Supreme Court which supersedes it. The Supreme Court decision gives the "all clear" to that which the group was concerned would not pass constitutional muster in anticipation of the decision. While the wording proposed is perhaps more modern and focused, it fails to offer a single tangible advantage over the provisions as they stand. A window-dressing exercise to update the text is not sufficient reason to amend the Constitution without proposing substantive change. There is no need to trouble the committee with the legal points we make in the paragraph.
Paragraph 50 addresses the difficulty of amending the Constitution without strong motivation. To do so creates an unavoidable effect of casting the settled jurisprudence of the courts into doubt until an entirely new range of cases has been fought under the amended provisions. We refer to the eighth amendment which was made in 1983 as the best example of a constitutional amendment passed to remedy a problem which had not yet materialised. It was an unhappy example from whichever perspective one speaks.
We conclude that there is a great need for extreme caution when tinkering with a complex and organic mechanism such as the Constitution. It is appropriate to adopt the alternative approach of simply drafting legislation deemed to be appropriate by the Oireachtas to remedy problems. Such legislation can be constitutionally tested in the ordinary way by the President, ab initio, by means of an Article 26 reference, or immediately on enactment through a private challenge by a property owner. It is the only time to instigate a constitutional process after the Supreme Court has had the opportunity to review the legislation and approve it - in which case there would definitely be no need for a constitutional amendment - or reject it in the context of a period of reflection in which the court’s views are given due consideration according to our constitutional scheme. To seek to amend the Constitution parallel to introducing amending legislation is an effective attempt to oust the jurisdiction of the Supreme Court to review legislation. Simultaneously, the design is to ensure the constitutionality of legislation before the legislation has been even put into practice. That, we believe is to oust the proper role of the courts as a kind of brake and supervisory process on the legislative process to allow for reflection and to protect against the enactment of, perhaps, on occasion, reactionary or ill-considered legislation. That is the proper role of the Supreme Court. Any attempt to amend the Constitution while simultaneously introducing legislation, or as an attempt to ensure the constitutionality of legislation is ultimately a startling insult to the proper role of the judicial branch under our constitutional system. The case for an amendment to the Constitution has not been made.
I am happy to answer any questions members may have, subject to the limitations that it is a very poor lawyer, indeed, who will offer on-the-spur advice, or any meaningful opinion at all, on the constitutionality of any given measure that individual Members of the Oireachtas may have in mind.
I am a barrister speaking on behalf of the Law Society which does not see it as its role to have any particular proposals or legislation in mind in making this submission. It is not in a position to offer any views or perspectives on mooted proposals or legislation. The Law Society does not have that kind of authority and we make our proposal this morning purely as a matter of law.