Today’s Irish Times features an impassioned and pointed piece by Patsy McGarry about the eviction of a family in Loughlinstown that was carried out by Dún Laoghaire-Rathdown County Council last Friday. In it, he notes the irony that the eviction coincided with the weekend of our second National Famine Commemoration Day.
According to the article
the family included a father and son who had lost their jobs in the construction industry. The mother returned from her part-time night job in a nursing home to find the rest of the family already on the street … The family had been living at their home for 16 years. Their rent was €100 a week. They had run up arrears of €12,500 up to last September. Since then they had been paying €150 a week rent with plans to pay a lump sum of €500 twice a year.
Evictions have clear implications for the enjoyment of the right to adequate housing – a right that Ireland is bound to give effect to under the International Covenant of Economic, Social and Cultural Rights (ICESCR). The minimum standards with regard to the planning and execution of evictions have been set out by the Committee on Economic, Social and Cultural Rights in its General Comment No.7 on the right to adequate housing: forced evictions. According to that General Comment, ‘The term “forced evictions” … is defined as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’ (para 3).
From the limited details of the case outlined in media reports, it is impossible to determine what forms of legal or other protection were available to or availed of by the family. A key general point, however, is that access to ‘legal protection’ for low income tenants of state-provided housing in Ireland is severely circumscribed by, amongst other things, the fact that local authority housing is not covered by the civil legal aid scheme. (The implications of this in terms of ‘unmet legal need’ are outlined in FLAC’s report on Civil Legal Aid in Ireland 40 Years On (2009)). Nor has the evolving unenumerated constitutional right to civil legal aid been held to extend to local authority residents who are being threatened with eviction. (See, e.g., Dublin Corporation v Hamilton, unreported, High Court, 19 June 1998; Byrne v Scally and Dublin Corporation, unreported, High Court, 12 October 2000).
Notably, the Committee on Economic, Social and Cultural Rights states that ‘The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights’ (para 3). Thus, even where an eviction is legally permissible in terms of domestic law, it must still conform with international human rights law obligations under the International Covenant on Economic, Social and Cultural Right and the International Covenant on Civil and Political Rights – obligations which Ireland voluntarily assumed by ratifying both of these instruments.
So what are these obligations?
The Committee explicitly acknowledges that ‘some evictions may be justifiable, such as in the case of persistent non-payment of rent or of damage to rented property without any reasonable cause’. However, it stresses that ‘it is incumbent upon the relevant authorities to ensure that they are carried out in a manner warranted by a law which is compatible with the Covenant and that all the legal recourses and remedies are available to those affected’ (para 11).
If, it is true that – as a local councillor stated to the media, – that ‘the council … refused to negotiate [with regard to payment of rent arrears]’ and that ‘the family was being used as an example to other families in arrears’ then this requirement was certainly not met.
There are also a number of preconditions to eviction that must be met for an eviction to conform with international human rights law. In particular:
States parties shall ensure, prior to carrying out any evictions … that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force. Legal remedies or procedures should be provided to those who are affected by eviction orders. States parties shall also see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected.
In terms of the conduction of evictions itself the Committee has highlighted that eviction must ‘be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality’
Procedural protections that must be provided include
-
an opportunity for genuine consultation with those affected;
- adequate and reasonable notice for all affected persons prior to the scheduled date of eviction;
- information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected;
- especially where groups of people are involved, government officials or their representatives to be present during an eviction;
- all persons carrying out the eviction to be properly identified;
- evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise;
- provision of legal remedies; and
- provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.
In light of media reports (see here, here and here), it is unclear whether any of the other conditions bar (4) were satisfied. As stated above, these conditions serve as the minimum standards for eviction. Where the state fails to comply with them, it is in violation of its obligations under ICESCR.
It is profoundly disturbing to see a state actor – the local authority – which is explicitly entasked with a housing function carrying out such an eviction in circumstances in which such an event could apparently have been avoided.
As McGarry notes, ‘you would imagine then that a statutory authority would never resort to eviction. But that one should took place in a State where there are 345,000 empty dwellings (17 per cent of housing) suggests imperious indifference.’ It also suggests a total disregard on the part of the state of its obligations in relation to the international human right to adequate housing.
Excellent post Aoife. Absolutely shocking state of affairs and so clearly breaches international human rights law, which as you point out the Irish government freely signed up to.
Hi Aoife,
Thank you for this really interesting piece. I was just wondering, is there an ECHR angle to this? Any potential claim under Article 8 for the family?
Hi David, Article 8 case-law on housing rights has been a bit of a mixed bag. In Chapman v United Kingdom (2001), the ECtHR stated that there is no right to be provided with a home under the ECHR as this is a political, rather than a judicial decision. However, a number of English decisions Bernard (2003), improper accomodation conditions for local authority tenants-and positive obligation to alleviate the restrictions on right to family life. Adam (2005) suggests there may be certain positive obligations on States to be provided with accomodation if a person is homeless (not necessarily a ‘home’-and there certainly wouldn’t be any notion of ‘choice’ as to what was provided (O’Rourke v UK (1998)).
In relation to evictions certain procedural safeguards should be in place, but Irish case law has been somewhat mixed-see an excellent summary here: http://www.chr.ie/_fileupload/Fellowship/CHR%2520LB%2520Euro%2520Convention_05.pdf
Hi David, I’d just echo Liam’s comment above about the limitations of the ECtHR’s Article 8 jurisprudence and would add that one of the serious potential drawbacks in using the ECHR Act 2003 is that a victory under that legislation may not result in evictions being prevented in practice.
Instead, following Pullen v Dublin City Council, applicants seem likely to only be able to seek compensation for any violation of Article 8 that such an eviction (or procedure enabling such an eviction) may cause. In Pullen, despite a court finding that the defendant local authority in that case carried out its functions in a way that did not comply with the State’s obligations under Article 8 of the Convention (and hence violated section 5 ECHR Act 2003), the applicants were still faced with eviction. The decision is now under appeal to the Supreme Court on the question of the possibility of injunctive relief under the ECHR Act. However, if the SC adopts the same approach as the HC, this will have serious implications for the capacity of the ECHR Act 2003 to serve as a barrier to forced evictions.
hi what can a tenant do if they are subjected to anti-social behaviour and placed wrongly in an entraptment situation due to mobility, sensory and psychological disability,
the person fled the county but dearly wishes to return but all finances have gone in this fleeing like a war victim.
the fall out has been even worse health and a brokedness beyond measure