Proposals for a temporary moratorium on evictions over the coming winter have generated the latest episode in a long-running series in Irish political life. Let's call it The Constitution Says No. The routine is a familiar one. Advocacy groups and/or opposition politicians call on the Government to enact legislation on a topical issue of the day. But at any early point in the debate, the Government rules out any action on the basis that it would be unconstitutional to enact the necessary legal reforms. The advice of the Attorney General is often (though not always) invoked in support of this view.

However, in spite of the authoritative tones of the Government’s pronouncement, it is not uncommon for significant questions to be raised about the extent to which these constitutional barriers are real or imagined. Constitutional lawyers are often quoted in newspapers or write detailed blogs explaining that the Constitution actually says "yes" (or, most often, "maybe") rather than a blanket "no".

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From RTÉ Radio 1's Today With Claire Byrne, Paul McAuliffe, Fianna Fáil TD & Oireachtas Housing Committee member; Pat Davitt, Institute of Professional Auctioneers & Valuers and Prof Conor O'Mahony from UCC on proposals for a ban on evictions this winter.

The proposed eviction moratorium has been a classic case in point. The initial announcement that it would be unconstitutional was met with comment from a wide range of constitutional lawyers arguing that the position was far less clear-cut, and that it would be possible to tailor such a measure in way that fits the constitutional constraints.

In this particular instance, the controversy revolves around property rights. The thinking is that landlords have property rights both in the property itself and in the contract entered into with their tenant. Where landlords have not been paid rent that is contractually due, a law that leaves them unable to evict the tenants and reclaim possession of the property is a significant intrusion on their property rights, as protected by Article 43 of the Constitution. An oft-cited precedent in this regard is the case of Blake v Attorney General (1981), in which a law imposing restrictions on rent was found to be unconstitutional, as it left the landlords in the case collecting rents that were far below market value.

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From RTÉ Radio 1's Morning Ireland, Mary Conway, Chairperson of the Irish Property Owners Association, says landlords strongly oppose Government plans to ban evictions during winter

However, constitutional property rights (like all other constitutional rights) are subject to proportionate restriction by the Government in pursuit of legitimate policy goals. Article 43 itself expressly states that property rights "ought, in civil society, to be regulated by the principles of social justice"; as such, the State "may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good."

The key yardstick by which restrictions on constitutional rights are measured is the proportionality test. In simple terms, this asks whether the restriction pursues a legitimate policy goal; and whether it goes further than necessary to achieve that goal.

In the case of an eviction moratorium, it is not difficult to point to a legitimate policy goal. Ireland is facing into a winter in which homelessness is already at record levels; and the war in Ukraine has precipitated an energy crisis, a cost-of-living crisis (particularly in the rental sector) and a sizeable influx of refugees. There is clearly a risk that considerable numbers of people will struggle to pay their bills and will face energy poverty, eviction or both.

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From RTÉ Radio 1's Morning Ireland, Tommy Meskill reports on a 58% rise in the number of termination notices received by the Residential Tenancies Board in the first half of the year, compared to 2021.

Mitigating this risk can hardly be claimed to be an illegitimate goal. The Blake case is easily distinguished here, because the law in question was decades old and could not be associated with any particular need on the part of either the tenants in the case or wider society.

Therefore, the issue would likely turn on whether a particular eviction moratorium goes further than necessary to achieve this goal. Relevant factors here would include questions like whether it is time-limited (which the rent restriction in Blake was not), and whether a review mechanism was built in. An open-ended and sweeping moratorium would face strong challenges, but a more time-limited and narrowly tailored moratorium would be considerably less likely to be struck down.

Significantly, an eviction moratorium was implemented during the Covid-19 pandemic, which demonstrates the principle that constitutional property rights are not an absolute bar to the introduction of such a measure. While the pandemic had an added dimension of the necessity for people to stay at home to prevent the spread of the virus, there is nothing in our constitutional law to suggest that this is a pre-requisite to the introduction of an eviction moratorium. The standard is altogether more flexible, and the courts are inclined to afford the Government a wide latitude in times of public crisis.

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From RTÉ Radio 1's Morning Ireland in March 2020, then Minister for Housing Eoghan Murphy on a temporary ban on evictions and a rent freeze introduced as part of emergency Covid legislation

This tendency was evident during the financial crisis following the banking crash. The courts rejected property-rights based challenges to the constitutionality of a range of measures, including a reduction in fees paid to pharmacists; the introduction of a public service pension levy; and a reduction in value paid to shareholders following the compulsory acquisition of a financial institution by the State.

There have been multiple recent instances of the Government back-tracking on claims of unconstitutionality and proceeding to enact laws previously ruled out on this basis. For example, laws preventing schools from using a child’s religion as an admission criterion were described as necessitating a referendum to remove constitutional obstacles in 2016, but passed by the same Government without a referendum in 2018.

The main obstacle to the enactment of some laws is a lack of political will or support rather than anything in the Irish Constitution

Mandatory quarantine for people entering the country during the pandemic was initially ruled out as unconstitutional, but later introduced and maintained for several months. Most recently, laws permitting adopted persons to access information on their birth and parentage (which were blocked by several Attorneys General due to constitutional concerns) were signed into law in the summer of 2022.

Whether the same pattern is followed in respect of the proposed evictions moratorium remains to be seen. The central point here is that the text of the Constitution is vague and leaves a lot of room for interpretation; as a consequence, the Constitution says no far less frequently than Governments claim. The main obstacle to the enactment of some laws is a lack of political will or support rather than anything in the Irish Constitution.


The views expressed here are those of the author and do not represent or reflect the views of RTÉ