Mr Kelly told a forum on housing and homelessness last month he had wanted to do more to boost social housing and protect renters during his term in office but could not.
“I was repeatedly blocked from making provision for what I believed was the common good by the strength by which property rights are protected under Article 43 of the Constitution,” he said.
But it has emerged an all-party call, to have social housing specifically provided for in the law on compulsory purchase orders (CPOs), has been ignored for 12 years despite a forewarning of the housing shortage now taking place.
The Joint Oireachtas Committee on the Constitution had also called in 2004 for a progressive charge against developers engaged in land-hoarding when sites were needed for building homes —effectively describing the vacant sites levy that is only now being planned but which will not come into effect for another three years and, then, only at a low flat rate.
Both measures were found to be possible within the existing Constitution, raising questions over the minister’s claims his hands were tied.
Edmund Honohan, who serves as master of the High Court, penned an open letter to Mr Kelly in response, urging him to use CPOs to buy back repossessed homes from vulture funds for use as social housing, pointing out that CPO law allowed the purchase of property where the common good took priority.
Mr Honohan said he was frustrated the public had been given the impression that private property rights were untouchable.
That view was echoed by Lorcan Sirr, lecturer in housing studies at Dublin Institute of Technology, who said the minister’s statement was “patently false”.
Mr Sirr told RTÉ Radio that the 456-page 9th Progress Report of the all-party committee in 2004 had addressed the very issues the minister claimed to lack power to tackle.
That reports warns: “There is a need for a system of formal land use planning designed to manage and regulate the market for property resources in urban areas. Otherwise the market signals will be distorted and difficulties of accommodation supply will arise.”
Mr Sirr said the question was not whether CPOs could be used in this regard but whether they should be used. “I think it should be done without a doubt for land that’s not being used. There is a huge amount of land that is being sat upon by developers and not being used.”
He also said if the minister feared legal challenges, a test case could be brought before the Supreme Court to clear up the matter.
Sinn Féin housing spokesperson Eoin Ó Broin accused the minister of hiding behind the Constitution and said the new all-party subcommittee on housing and homelessness should convene immediately.
“If there is an opportunity to compulsory purchase housing units back from vulture funds who are evicting vulnerable families then that should be looked at seriously,” he said. “But there is certainly no constitutional block on the building of social housing and the minister should explain his failure in this regard.”
The Peter McVerry Trust welcomed the views the housing emergency could be tackled within the existing legal framework and urged those avenues to be explored.
But Karl Deeter of Irish Mortgage Brokers described the ideas as “ill thought out, uncosted, untested, risky and perhaps even reckless”.
“If the State gets into the habit of being able to take property away from people with relative ease then where does it stop? Do we then move on to older people who live alone and who are under-occupying homes?” he wrote in his blog.
“If we signal to the property market in general that you could lose out any time the state takes a dim view of your plans then it will encourage earlier profit taking and could also have other knock on effects.”
The minister did not respond to the calls to produce the legal advice he received.