"Barristers employed by political parties don’t get to decide what’s constitutional."
This week, Fianna Fáil undercut Sinn Féin's proposed three-year rent-freeze on the grounds that the party had received legal advice saying such freezes would be unconstitutional.
These concerns were an echo of issues raised by Minister for Housing Eoghan Murphy when Sinn Féin brought a rent-freeze bill before Dáil Éireann last year.
David Kenny, an assistant professor of constitutional law at Trinity College Dublin, told JOE that the reality is far more complicated.
"The constitution provides strong property rights with regards to preventing people from getting value from their, but it's a heavily qualified right, not an absolute right," Kenny said.
"It can be restricted in the interest of common good.
"The legislature gets the first pass at what "common good" means, and if they decide that there is a policy worth pursuing, such as restricting rights a little bit in certain areas then the courts can review it and decide its constitutionality."
Specifically, Bunreacht na hÉireann says that housing "ought, in civil society, to be regulated by the principles of social justice". It also allows the state to regulate property rights "with a view to reconciling their exercise with… the common good."
Ireland is currently undergoing a housing crisis, with rent prices hitting record highs continuously over the last four years. Additionally, over 10,400 people are officially classified as homeless. Through this lens, Kenny believes it would be possible to successfully argue before the Supreme Court that the "common good" stipulation is met.
Kenny also takes issue with the idea that there is precedent ruling out the possibility of rent-freezes, stating that previous Supreme Court rulings on rent-freezes have been nothing like what is proposed now.
"The rent restrictions invalidated in the 1980s were insane, the schemes didn't make any sense. The restrictions were trying to enforce prices from World War I, 60 years later.
"The idea that doing something sensible, rational, systemic is also unconstitutional way over-reads the significance of those precedents."
Kenny has said that no party can confidently decide the constitutionality of rent-freezes, quoting former Taoiseach Jack Lynch in saying: "It would be a brave man who would predict what was or was not contrary to the Constitution."
The legal advice cited by Fianna Fáil this week was provided by Darren Lehane, a former Fianna Fáil candidate for the 2014 local elections.
Emphasising the role of the Supreme Court in the process, Kenny said: "Barristers employed by political parties don’t get to decide what’s constitutional."
