Ireland
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A Lost Cause? Asserting Public Housing Rights Under the European Convention on Human Rights Act 2003 By Sophie Treacy, SS Law In the case of O’Reilly v Limerick Corporation (1989), Costello J famously delivered a catastrophic blow to the prospect of socio-economic rights protection under the Irish Constitution. He limited the role of the Irish courts to corrective justice, as opposed to distributive justice, thereby cutting off countless jurisprudential avenues through which future litigants could assert positive socio-economic entitlements under the Constitution. It is no surprise, therefore, that when the European Convention on Human Rights Act 2003 was incorporated into domestic law, litigants attempted to use it as an alternative route to contend for socio-economic rights protection in accordance with the rights enshrined under the European Convention. Indeed, the 2003 Act has on several occasions been relied upon by members of the Travelling community in seeking to compel the State to provide them with adequate public housing. By and large, however, such litigation has been characterised by its disappointingly low success rate. Almost every case to date that has been taken by members of the Travelling community to contend for an adequate level of public housing on foot of the European Convention has failed.
Time and time again, we see the Irish courts refuse to entertain a holistic, dignity-centered approach to interpreting the scope of Convention rights, favouring a circumscribed, strict approach of legislative deference instead. The staunch reluctance of the Irish courts to veer into the realm of distributive justice has resulted in some very harsh rulings for members of the Travelling community. In Doherty v. South Dublin Co. Co., for instance, an elderly couple, who were living in a caravan with no running water or heating and were suffering from a number of ailments, contended that this was contrary to the Housing Acts (Ireland) 1966–2004 pursuant to Article 3 of the ECHR, which protects the right to be free from torture and inhuman or degrading treatment. The High Court emphasised that the provision of public housing and welfare is fundamentally a political issue and refused to intervene unless the applicants could demonstrate “a complete inability to exercise their human rights.” In this instance, the fact that the Council were offering apartment-style accommodation, which was manifestly incompatible with the nomadic cultural norms of Travellers, and intended to provide another caravan after 18 months, was enough to satisfy the Court that the applicants’ rights pursuant to the 2003 Act were not infringed. Subsequent attempts by the Travelling community to compel the State to provide adequate public housing were met with similar defeat. From an international perspective, the Irish courts seem to have adopted a comparatively strict interpretative approach to how the ECHR might give rise to positive rights in the public housing context. In McDonagh v Kilkenny County Council, for instance, the Irish High Court ruled that the Council had not infringed the applicants’ right to respect for their private life and family home under Article 8 by compelling them to leave
