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'Housing A National Scandal'

'Housing A National Scandal' | by Constitutional Barrister David Langwallner | Law Lecturer and Director of the Innocence Project

 

It is intrinsic to the sustainability of any social structure that people are adequately fed, clothed and housed. This may seema rather primitive and basic assertion that needs no explanation or contradiction but, of course, in the last respect at the very least The Irish State is not providing for adequate housing for its citizens or intervening to ensure that such accommodation that is provided is adequate and affordable. The housing market is chronically under provided with many local councils reluctant to countenance the building of modular homes and the rental market definedly out of control and extortionate. The state is also tolerating an epidemic of evictions by banks and vulture funds that they have not adequately regulated and have negligently permitted to engage in unfair commercial practices often in breach of consumer protection. The non-intervention in the banking structure which should have led to nationalisation or a significant measure of state control has led to the secretive deal-making in the deeply suspect NAMA and a banking inquiry compromised from the outset. Iceland chose to nationalize its banks to much derision at the time and is now in a stable financial situation. The banking inquiry into the whole farce was deeply compromised with many documents redacted and in addition to that core witnesses either not called or called out of sequence.

 

All of this has been premised on the voodoo logic of neo-liberalism, which has led to a homelessness and eviction epidemic threatening, and it is no exaggeration to say so, the very fabric of our society.

 

In fact the level of our homelessness in Dublin city center in particular has reached a point that there is almost a surreal zombie like feel to the atmosphere of late at night. It is not unlike the night of the living dead.

 

We have become socially displaced and a dislocated nation where many of our citizens do not feel part of a society that has clearly abandoned them. In terms of my professional experience as a lawyer I have only once before witnessed such social collapse and that was when I worked in New York in the early 90’s. The scenes on Dublin streets also remind me of a recent visit to Nairobi where I litigated a death penalty case where multitudes walk the streets and fields in a non-directional aimless way.

 

The question arises: what causes such matters and what can be done?

 

First, it is obvious that the root cause, now at a distance, was our banking collapse the levels of responsibility for which among our top lawyers, civil servants and bankers have never been adequately probed or explained even after the utterly ludicrous banking inquiry which did not have access to anything like the requisite documents or witnesses concealed under a smokescreen of legal manoeuvres. The banking inquiry I have written elsewhere was a poorly performed French farce but in point of fact it was a good deal more sinister than that and the controlling cartel of our increasingly plutocratic society have just cause to feel they aborted or fended off serious scrutiny. It was noble and morally correct of Pearse Doherty and Joe O’Higgins not to sign their names to such a charade. The inquiry further ended in the shambles of an inquiry into the inquiry. At this stage we have reached not so much a farce as a theatre of the absurd.

 

The solution at the time was of course not to defer to the decidedly unstructured non-intervention in the internal affairs of banks or the self-interested club that NAMA has been since inception but to nationalize the banks and/or regulate them in such a fashion that they honour their promises and act responsibly and fairly.

This of course has not happened.

As a postcard from the edge and a view from the law library trenches on all of this the banks have continued a sustained policy of reneging on promises bartered with consumers at a time of high ostensible economic prosperity by refusing their contractual obligations to revert the consumer to a tracker mortgage after the expiry of a fixed rate period or upping interest rate repayments significantly in excess of ECB rates most prevalently with those seeking to exit the country. Significant litigation in the Four Courts is now geared at understanding precisely what went on in this context.

 

Further, banks with no interest in Ireland Danske Bank and The Bank of Scotland in particular simply left the room and disposed of their assets hiking up the mortgage interest rate payments repaciouslyas they left and/or selling the assets off to the underworld of vulture funds, a curiously apt word to describe the predatory behavior of such entities.

 

In point of fact the banks also bundled assets. In a particularly scandalous case now wending its way through the court structure Danske Bank refused a repayment offer of €90,000 from the consumer and then sold the house via receiver to a composite property portfolio, which often consist of American and non-national investors, at the bargain basement price of €60,000. This is simply an outrage devoid of any ethic of moral justification other that that of naked corporate greed. And yet like the tracker issue it passes unregulated and unprobed. Recent reportage suggests that the vulture funds are now gathering with a plethora of mass evictions on the cards.Tyrellstown is the beginning of a veritable tsunami of mass evictions.

 

Further, the vulture funds are in essence profiteering often massively from human misery and something needs to be urgently done so as to ensure how much they in point of fact paid for the asset rather than how much they are in effect hitting the consumer for in effect the hyper inflated market price of the debt.

 

The tolerance of unscrupulous behavior of banks and vulture funds is in effect the tolerance of an unregulated wildcatting neo liberalism, which profits the privileged few and is simply not compatible with fairness and egalitarianism so essential to the existence of a just society. Our society has become in effect a plutocracy dedicated to the preservation of the few at the expense of the many. It is difficult to work out how much of this is simply impromptu and how much a coalition of interests or at a stretch some sort of inchoate conspiracy.

 

It should also be stressed, in the interests of candor, that there is seemingly an ideological preference amongst much of the judiciary to uphold the practices of banks and vulture funds in a misplaced belief system that this is ethically or morally or in many cases legally appropriate. Such a vantage point shows scant empathy or understanding of the plight that ordinary people find themselves in.

 

Indeed to rub salt in the wound judges sit hearing cases where they themselves are in hock to the bank which raises crucial constitutional issues of fair procedures.

 

Further, the consumers often stand-alone as lay litigants given the parlous nature of our legal aid system and a distrust of money grubbing lawyers against well paid and often tag teams of lawyers representing banks often fully abreast of every stratagem and ruse. This also augurs the absolute necessity for greater legal aid funding and perhaps a representative cadre of lawyers preferably grouped in a set of chambers dedicated to representing in such cases at a tolerable and not extortionate price. There is a defined need for a public interest set of chambers that will afford top quality representation at a reasonable rate.No doubt opposition will present itself from the bar council, a body that through it's opposition to the legal services bill has not promoted the interests of the consumer or indeed the bar specifically the junior bar but the interests of the bar council and its friends.

In sum it is surely time if not for a Greek or Portugese style democratic revolution then at the very least for a more socially just social democratic society.

In this respect although we are in a state of electoral flux with the probability of a joint enterprise right wing coalition with another election on the cards militant socialist values will, in my view, if endorsed in any subsequent election come up against the vested interest of the Eurocracy and will as Mr. Tsipras found out to his cost be stillborn and ineffective in accomplishing their goals.

Surely what is really needed thus is the return of social democratic interventionism or the master John Maynard Keynes. It is also perhaps necessary to hope if not expect some inspired leadership in the national interest by one of the national parties or better several that Roosevelt showed during the American depression. The word depression is not lightly used for that is what it is not austerity not cutbacks but a full-scale depression with the entire attendant effects on human suffering that that produces.

 

So what can be done?

 

First, as argued above we need state regulation and control of and/or independent scrutiny of banks. In this respect I am decidedly in favor either by way of a new direct democracy initiative which would lead to a new populist referendum procedure or astate led referendum under Article 46 to institute a constitutional amendment to establish a right to housing.

 

In this respect the Economic and Social Committee of The UN has indicated in General Comment 4 that the right to housing encompasses adequate, affordable, habitable, accessible, culturally adequate housing and that there is an obligation to have a defined housing plan. The problem is we have no housing plan but a constitutional referendum establishing same would put the courts in the position of overseer of the absence of defined initiatives taking place.

 

In domestic constitutional terms in India the Right to Housing has been established as an emanation of the right to life and established as a basic survival right intrinsic to life and a quality of life.

 

Also in Canada a right to housing is negatively accepted where even informal settlements exist they cannot be taken away from you under Clause 7 of the Canadian Charter, which protects the right to life, and security of the person.

 

Both within the structure of the African Charter and the Inter American system the right to housing has been established as it has been in various domestic South American and African jurisdictions.

 

In this respect the most prominent recent constitution on world terms The South African constitution has such a right in Article 26 and in Section 28 the right of children to shelter.

 

What that right initially entails is the establishment of a right to housing subject to progressive realization and reasonable allocation of resources. The Constitution also specifies an immediately enforceable specific minimum right against forced or arbitrary evictions. The South African constitutional court have interpreted this later provision in a number of cases particularly Joe Slova (Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (CCT 22/08) [2009] ZACC 16; 2009 (9) BCLR 847 (CC) ; 2010 (3) SA 454 (CC)) that such a right entails:

 

(i): Meaningful consultation prior to eviction.

(ii): Alternative relocation if eviction proceeds.

(iii): No eviction to proceed unless the land is being put to productive use.

 

I recommend either legislatively or constitutionally the immediate implementation of same with one further embellishment that an arbitrator be appointed to determine on the facts of a particular case whether the amount that a consumer can pay is sufficient in the circumstances. That arbitrator should also be able to probe the banks or the vulture funds as to how much they could practically gain if they sold the property on the open market or sought to bundle it as in the terrifying previous example involving Danke Bank.

 

The arbitrator would of course reject spurious defenses involving colossal amounts of borrowings but it would in effect achieve a re-calibration of the system and also establish some equality of arms in the process, which is badly needed.

 

Finally, there is no question in my view that a government has an ethical obligation to provide someone evicted with an abode however humble even a modular home and not the ludicrous episodic nature of existence in temporary hotel structures.

 

A right to housing does not lead to a right to a home in Kiliney but to some sort of shelter so intrinsic to the most important of all constitutional rights the right to dignity.

 

Without adequate shelter no one can live a dignified existence. It is intrinsic to any meaningful understanding of the quality of life.

 

Further, the housing and eviction crisis is corroding the very fabric of our society with attendant problems for public order and the mental and physical well being of our citizens. This will further lead to problems of social dislocation and rising crime.

 

The electorate has comprehensively rejected Neo-liberalism if you look at the totality of the returns. Unfortunately, the ruling power broking elite is likely in substance to be restored to power and has bought the mumbo jumbo of unregulated markets and trickle downeconomics wholesale and panders to the cosy club of lawyers, bankers, civil servants and businessmen who run this country in an oligarchical shadowy netherworld fashion.

 

In the present climate extreme left wing rejectionism will not be able, in my view, to provide an adequate negotiated settlement but social democracy could.

 

We need such a society, a fairer, more substantively just Rawlsean society committed to a measure of egalitarianism and redistribution of wealth and resources. A society committed in an ethic of social justice to building homes as a right for everybody and not as a privilege. Resources we have aplenty if we taxed the right appropriately and not mugged the poor for that is what neo-liberalism is, legalized mugging and thuggery.

 

We need the return of Mr. Rawles and for that matter Mr. Keynes.

 

In my view it is three minutes to midnight and this needs to be urgently addressed.The clock is ticking and fast.

DAVID LANGWALLNER | April 2016

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