20090817152854

conjunction with Citizens InformationCentres. FLAC’s website offers awealth of useful information and isavailable at www.flac.ie

FLAC campaigns on a range of issuesconnected with our core areas ofwork: civil legal aid, social welfare lawand credit & debt law. In addition weseek to advance the use of law in thepublic interest.

flacNewsI S S N 0 7 9 1 4 1 4 8 l V O L U M E 1 9 l N U M B E R 2 l A P R I L - J U N E 2 0 0 9

F R E E L E G A L A D V I C E C E N T R E S

FLAC News is available free on subscription, in print or PDF format. For this 40th anniversary year, it isbeing sent to all Irish legal practitioners. If you want to receive an electronic version rather than aprinted one, or no longer wish to receive FLAC News, please e-mail us at [email protected]

We take cases to challenge the lawand so promote access to justice onbehalf of marginalised or disadvan-taged groups. Some cases have led toimportant law reform and enhancedrights for such groups.

Underpinning our campaigning andcasework is a strong tradition ofresearch and policy work. FLAC gener-ates submissions on legal and social pol-icy developments and proposes reformsto the law. The organisation producessubstantive reports on our key areas ofwork as well as smaller publicationsdesigned to explain and make relevantlegal issues for a wider audience.

Our newsletter, FLAC News, is now inits 19th year and appears quarterly.Tomark the organisation’s 40th anniver-sary, FLAC News will include a specialinsert documenting the four decadesof the organisation's existence in pho-tographs and press clippings.This willappear in each issue throughout 2009.

This second issue of 2009 covers the1980s and 1990s, when FLAC diversi-fied and expanded, despite major finan-cial constraints.We hope you enjoy thisseries and welcome any feedback.

FLAC is an independenthuman rights organisationdedicated to the realisation ofequal access to justice for all. Itcampaigns through advocacy,strategic litigation and author-itative analysis for the eradica-tion of social and economicexclusion.

We provide necessary legal services tothe public, including an information andreferral line, and we support a networkof 70 free legal advice centres through-out Ireland.

The helpline, available at 1890 350250, is open during office hoursMonday to Friday. While it does notprovide legal advice, it offers basicinformation on the law and referrals toan appropriate service or centre. Ourcentres are open in the evenings andare staffed by volunteer lawyers whoadvise people on their legal queries.We do not offer representation.

In 2008 FLAC answered some9500 queries on its helpline andprovided non-means tested legaladvice to about 7500 people atits centres, which are operated in

4400 YYeeaarrss ooff FFLLAACCCCeelleebbrraattiinngg ffoouurr ddeeccaaddeess ooff tthhee

FFrreeee LLeeggaall AAddvviiccee CCeennttrreess iinn IIrreellaanndd

flac News | Vol. 19, No. 2

F L A C N E W S l A P R I L - J U N E 2 0 0 922

iinn tthhiiss eeddiittiioonn......

FLAC research shows how Ireland’sdebt laws must change now 2-3

Traveller law centre opens 3

McCann case & Enforcement of CourtOrders (Amendment) Bill 4

Irish Rail must welcome disabled passengers 4

FLAC appears at OireachtasCommittee on debt 5

Sex trafficking and prostitution:Immigrant Council report 5

Single Protection Procedure: RefugeeCouncil report 6

Report on access to justice showsmajor gaps still in state provision 7

Singer reveals lasting trauma of debt at FLAC report launch 8-9

40th anniversary insert:No.2: FLAC in the 1980s & 90s i-iv

FLAC at 40: President honoursfounders and volunteers 10

Voices for Justice: Poetry readingmarks 40th anniversary 11

New members for PILA team 11

Focus on FLAC: Michael Farrell 12

FLAC @ Finglas, Dublin 11 13

ICCPR follow-up conference 14

Casework round-up:Appeals chiefrejects welfare ban; Dept eases ruleson unobtainable documents 15

Legal challenge to governmentmauling of equality & human rightsinfrastructure 16

FLAC News is published quarterly byFree Legal Advice Centres Ltd., 13Lower Dorset Street, Dublin 1.

ISSN 07914148

Editing & Layout: Yvonne Woods

Contributors: Noeline Blackwell,Saoirse Brady, Siobhan Cummiskey,Tracy Ennis Faherty, Michael Farrell,Catherine Hickey, Sarah Horgan, PaulJoyce,Aisling McHugh, FintanMonaghan, Jill Nesbitt, Orla O’Malley,Edel Quinn, Caoimhe Sheridan,YvonneWoods, Nusha Yonkova.

Photos: FLAC, Hugh McIlveen, ITM,Eamonn O’Dwyer, Derek Speirs

The views of individual contributors do notnecessarily represent the views of FLAC.

FFLLAACC rreesseeaarrcchh sshhoowwss hhooww

The right of equal access to justiceis a firmly imbedded and funda-mental human right. Nowhere is

the need to protect rights, the need tocurb abuses of poor and the need to pro-duce fair and effective resolution mecha-nisms clearer than where law meets com-merce. Law reform in these areas hasbeen very slow to materialise, particularlyin the area of debt enforcement.

On 6 July, singer and songwriter MaryCoughlan launched FLAC’s report enti-tled To No One’s Credit, a study of thedebtor’s experience of Instalment andCommittal Orders in the Irish legal sys-tem (see page 8 for a full report on thelaunch).

This was the culmination of three years'research work, commencing with a seriesof 38 in-depth interviews with clients ofthe Money Advice and Budgeting Service(MABS).Accordingly, the main purpose ofthe study was to hear the views of thoseaffected by debt enforcement proceduresand indebtedness generally. A wide-rang-ing series of observations were made byinterviewees emphasising, in some casesvery poignantly, the fear, stress, confusionand sense of helplessness and hopeless-ness felt by debtors who find themselveson the receiving end of legal proceedingsas well as the consequences for them-selves and their dependants.

The key findings of To No One's Creditinclude:8 Two-thirds of debtors were social

welfare recipients at the time legaland debt enforcement proceedingswere brought against them and theremainder were on limited incomes,having suffered an adverse change intheir financial circumstances.

8 A significant majority of those inter-viewed said they did not understandmuch of the legal documentationand their options at various stages ofthe procedure.

8 A number claimed not to havereceived documents served by regis-tered post that others had signed forand had not passed on to them.

8 Many were unaware of where to get

assistance and looked for help fromMABS or other sources far too latein the process. Informal offers of pay-ment by debtors were generallyrefused by creditors but similaroffers made by MABS money advi-sors were usually accepted.

8 There was great reluctance toappear at debt enforcement hearingsin open court unless MABS advicehad been received. Of 27 applica-tions for Instalment Orders,23 failedto send in details of their finances orattend the hearing so that the courtset instalments with out-of-date orno financial information.This result-ed in only one out of 27 InstalmentOrders being fully paid.

8 Of 22 applications for arrest andimprisonment, 16 resulted inCommittal Orders being granted.Not one of these 16 debtors was incourt to defend his/her position.Three successfully appealed to theCircuit Court, two paid the arrearswith borrowings and five servedterms of imprisonment.The remain-ing six creditors eventually declinedto follow through on the executionof the committal when it becameapparent (usually through MABS)that there was inability as opposedto unwillingness to pay, clear proofof an inefficient system that allowedmatters to progress so far.

A brief summary of some recommenda-tions includes:

8 Court documents should be simpli-fied and explanatory booklets pro-vided which would include details ofwhere debtors can get help at theearliest opportunity.

8 The ‘money advice approach’ of pre-senting verifiable financial informa-tion should be the basis upon whichassessments are made of those withlimited capacity to pay, ideally priorto any legal proceedings beingbrought. All debts should be takeninto account on a pro rata basis.

8 The Legal Aid Board should checkwhether debts are actually owedand where appropriate, provide legal


F L A C N E W S l A P R I L Ð J U N E 2 0 0 9 33

IIrreellaanndd’’ss ddeebbtt llaawwss mmuusstt cchhaannggee nnoowwrepresentation to defend claims.

8 The Instalment Order procedureshould be completely reformed.Hearings should take place in privateand the attendance of the debtorshould be compulsory.

8 In order to frame future policy, farmore extensive information shouldbe available on participation in debtenforcement proceedings. Creditorstoo should have access to morecomprehensive information in orderto prevent pointless applications.

8 Imprisonment should be removedas an option for those unable to paytheir debts and non-penal remediessuch as attachment of earningsshould be examined.

8 A Debt Rescheduling Service oper-ating in private should be set up asan alternative to deal with debtenforcement cases. It could have adebt settlement role in consumerbankruptcy cases where a person’sdebt situation is chronic and unlike-ly to be resolved in the long term.

It is regrettable that the government didnot seize the opportunity in better eco-nomic times to reform the laws on debtenforcement in Ireland, in particularbecause a downturn was inevitable andcasualties of that downturn are growing.Still, we must start from where we are

now. The recent High Courtjudgement in the McCann casehas resulted in new legislationthat excises the more extremeoutcomes of our outdated pro-cedures (see page 4 for moredetail).

This is a chance to build on thatprogress and to haul our debtenforcement system into the21st century.

The Law Reform Commission’sforthcoming Consultation Paperon debt enforcement, due to bepublished before the end of September,presents the ideal opportunity to achievethat goal.The Commission has consultedwidely in preparation for this publicationand the indications are that it will take abroad rather than a narrow approach tothe subject.

It is encouraging that the Minister forJustice, Equality and Law Reform, DermotAhern TD, during the course of the Daildebate on the Enforcement of CourtOrders (Amendment) Bill on 10 July, hasflagged his support for this work.

Specifically, he said that it will lead to the publication of a majorpaper next year in which [the LRC] will

make recommendations for any in-depth reform of this area, whichundoubtedly is overdue.The Commissionhas lengthy experience of broad consul-tation and produces excellent, workablesolutions in complex areas. I have nodoubt that it will take into account thejurisprudence, as well as the detailedand helpful research produced this weekby FLAC. Any other issues arising in thisarea can and will be considered in thatcontext.

For hard-pressed borrowers facing anuncertain future, many of whom havefound their financial situation deteriorat-ing beyond their control, it cannot comequick enough.

AAfftteerr tthhee llaauunncchh ooff TToo NNoo OOnnee’’ss CCrreeddiitt oonn 66 AApprriill,, ppiiccttuurreedd oouuttssiiddee DDaaiill EEiirreeaannnn:: SSeenniioorr PPoolliiccyy

RReesseeaarrcchheerr PPaauull JJooyyccee,, ssiinnggeerr MMaarryy CCoouugghhllaann aanndd DDiirreeccttoorr GGeenneerraall NNooeelliinnee BBllaacckkwweellll

TTrraavveelllleerr llaaww cceennttrree ooppeennss

The Irish Traveller Movement LawCentre opened its doors on 2 June2009. The Law Centre replaces the

Legal Unit, which was attached to the IrishTraveller Movement from 2003 to 2008. Itwill operate as an Independent Law Centrewithin ITM and is one of the five IndependentLaw Centres in Ireland.

The Centre will provide a unique specialistlegal service to Travellers in Ireland. It recog-nises an unmet legal need in the Travellercommunity and that a specialist legal serviceis essential to advancing Traveller rights inIreland. It aims to advance the ability ofTravellers to access expert legal advice andrepresentation;Traveller human rights underthe various legislative frameworks; recogni-

tion of Travellers as an ethnic minority; andthe capacity of Traveller organisations torespond to legal issues facing Travellers.

The Law Centre will take test cases to chal-lenge laws that attack Traveller culture. It willpursue cases in line with ITM’s core issues(Accommodation, Equality and HumanRights, Education, Access to Services andEthnicity) and is seeking case referrals. LegalOutreach Clinics will run in ITM’s fiveRegional Centres.Legal Education workshopsand research & policy work will also beundertaken.The Law Centre hopes to lobbyfor the re-establishment of the Oireachtassub-committee on Travellers..

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IITTMM LLaaww CCeennttrree ssoolliicciittoorr SSiioobbhhaannCCuummmmiisskkeeyy ((aabboovvee)) ccoommeess ttoo tthhee LLaaww

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On 18 June 2009, judgment wasdelivered by Ms Justice MaryLaffoy in the High Court in the

case of McCann vs Judge of MonaghanDistrict Court & others, a landmark actionthat challenged the constitutionality ofSection 6 of the Enforcement of CourtOrders Act 1940 and its compatibilitywith the European Convention onHuman Rights and FundamentalFreedoms.

A single parent with two children,Caroline McCann, without ever havingbeen present at a sitting, had been sen-tenced to one month in prison by herlocal District Court following debtenforcement proceedings taken byMonaghan Credit Union.

The credit union had obtained a judg-ment for just over €18,000 on a loanthat Ms McCann had failed to pay due tofinancial, family and personal difficulties.This was followed by an application forthe debt to be repaid by instalments.AnInstalment Order was made for €82 permonth. Ms McCann did not attend thehearing, as she did not sufficiently under-stand the nature of the proceedingsgiven her limited educational back-ground and did not (at the time) haveaccess to legal or financial advice.

Surviving on one-parent family paymentand living with her mother in localauthority accommodation, she could notpay the Instalment Order amount andarrears quickly developed. The creditunion applied for her arrest and impris-onment and an order to serve onemonth was granted.

By that time, Ms McCann had become aclient of Monaghan Money Advice andBudgeting Service (MABS) who in turnhad sought legal advice from NorthsideCommunity Law Centre (NCLC) on herbehalf. NCLC looked to extend the 14-day time period to appeal the order tothe Circuit Court. This application wasdenied in the District Court and theconstitutional challenge followed.

The Laffoy judgment is very thorough

and is critical of the continuance of ascheme of enforcement of debtdescribed as vague and lacking in guid-ance for either creditor or debtor. In anutshell, it finds Section 6 of the 1940Act deficient primarily on three grounds.

Firstly, it allows for the imprisonment ofthe debtor in his/her absence. Secondly,the onus of proof is on the debtor toshow that his/her failure to pay theinstalments is not due to ‘wilful refusal’or ‘culpable neglect’. Thirdly, the Statedoes not provide legal representationfor the debtor to defend him or herself.Given that the sanction that can beimposed at such a hearing is a term ofimprisonment, these were found to beunacceptable infringements on adebtor’s right to liberty and fair trial pro-cedures. Having found the sectionunconstitutional, the Court did not findit necessary to deal with the question ofits compatibility with the Convention.

The publication of the judgment sparkedapplications for the release of debtorswho had been imprisoned under theterms of this section and the adjourn-ment of other cases where committalapplications were pending. The Ministerfor Justice, Equality and Law ReformDermot Ahern TD ordered the releaseof a number of debtors and by 10 July itwas reported by the Minister that "therewere no loan defaulters in Irish prisons."

On 29 June, the government approvedthe drafting of the Enforcement of CourtOrders (Amendment) Bill 2009, sig-nalling its intention to shore up the com-mittal procedure in relation to debt withemergency legislation. The press releasethat accompanied this announcementleft no doubt that the Department stillvalued the potential option of imprison-ment as it stated that the procedure "isused sparingly by the courts, even priorto the High Court judgment. However,its value is its persuasive power – peopletend to settle up when they know theyare at risk of prison."

As FLAC commented when the Bill waspublished, it attempts only to rectify the

defects identified in McCann and nomore,with the government press releaserelying heavily on the upcoming publica-tion of the Law Reform Commission’sconsultation paper on debt enforcementin September as a possible source offuture changes.

However, at least imprisonment of adebtor without establishing his/her capaci-ty to make instalment payments shouldimmediately become a thing of the past, asthe Bill basically makes attendance at thecommittal hearing compulsory. It also pro-vides that the onus will now be on thecreditor to establish that the debtor’s fail-ure to pay instalments was due to wilfulrefusal or culpable neglect. Finally, it pro-vides for the debtor’s right to criminal legalaid where s/he cannot afford a solicitor.

Until McCann, Ireland was the only coun-try in Europe where you could be jailedfor failure to pay a privately contracteddebt. This is not the same as failure topay a fine, the subject of a recent billwhich introduces the idea of 'equality ofimpact.' This gives the courts power toassess a person's financial situation andhow repayments will impact on thedebtor and his/her dependants – some-thing which would be very welcome inthe area of civil debt.



TThhee MMccCCaannnn ccaassee aanndd tthhee EEnnffoorrcceemmeenntt ooffCCoouurrtt OOrrddeerrss ((AAmmeennddmmeenntt)) BBiillll 22000099

The Equality Tribunal has orderedIarnrod Éireann to put up signsnear designated wheelchair

spaces in their carriages stating that peoplewith disabilities are welcome to travel ontheir trains and are protected in doing soby the provisions of the Equal Status Acts.The rail company has also been ordered totrain all its staff in the requirements of theEqual Status Acts 2000-2004.

It found that William Hennessey, a disabledman who is confined to a wheelchair, washarassed by Iarnrod Éireann staff whoapparently felt his wheelchair got in theirway. Represented by FLAC,he was award-ed €3000 compensation for the distress,humiliation and intimidation he suffered.

IIrriisshh RRaaiill mmuusstt wweellccoommeewwhheeeellcchhaaiirr uusseerrss


55F L A C N E W S l A P R I L Ð J U N E 2 0 0 9

FFLLAACC aappppeeaarrss aatt JJooiinntt OOiirreeaacchhttaass CCoommmmiitttteeee oonn ppeerrssoonnaall iinnddeebbtteeddnneessss

On 22 April FLAC made a presen-tation to the Oireachtas JointCommittee on Social and

Family Affairs. This was an importantopportunity for FLAC to persuade theGovernment and the Financial Regulatorof the need to make the current code onmortgage arrears more protective ofpeople facing personal debt. SeveralGovernment departments and stateagencies also made presentations.

FLAC focused on the sharp increase inpersonal indebtedness and especially theincrease in the number of people goingto prison due to the non-payment ofinstalment orders. Some 276 peoplewere jailed in 2008 under the heading‘offences relating to debt’ in 2008, upfrom 201 the previous year.

FLAC has been involved in the area ofcredit and debt since the 1990s. It saw adoubling in requests for advice on debtin its legal advice centres between 2007and 2008.There was a five-fold increasein the number of telephone callsreceived in the first quarter of 2009compared to the same period in 2008.

FLAC’s main objective is to improve pro-cedures for people in arrears and toensure that there are alternatives to tak-ing legal action. With this in mind, thedelegation made the following recom-

mendations to the Committee:8 That the Financial Regulator’s code

on mortgage arrears be extendedto cover all kinds of debt arrears, inparticular, credit agreements, per-sonal loans and hire purchaseagreements.

8 That the code should contain acompulsory referral to the MoneyAdvice and Budgeting Services forpeople in arrears, while acknowl-edging that this clearly poses aresources problem for MABS.

8 That there should be an obligationon lenders to look at the completefinancial circumstances of borrow-ers, taking into account over-indebtedness, and to look at afford-able repayment options as an alter-native to legal action.

8 That the current court order legis-lation be reformed. District courtjudges should be given the powerto adjourn proceedings where thedebtor fails to make an appearance.This would help prevent a debtorbeing sent to prison for non-com-pliance of an instalment orderwhere the order was made in theirabsence. A person in such circum-stances should be entitled to civillegal aid from the Legal Aid Board ifneeded in order to fully understandand participate in the proceedings.

Regarding the government's currentreview of the Mortgage InterestSupplement scheme, FLAC believes thatthis should include an examination ofreckless lending and, in particular, sub-prime lending. As the scheme was setup to protect the consumer, FLACbelieves this must be reflected in prac-tice and that legislation should be intro-duced for a rescheduling of loans in cer-tain circumstances where repossessionof the family home is likely.

FLAC’s presentation received wide sup-port and positive feedback from all sidesof the Committee and from the othergroups present. Ms Mary O’Dea, speak-ing on behalf of the Financial Regulator,said that the mortgage code had beenput on a statutory footing very quicklyand that they would be open to dis-cussing the issues raised by FLAC toimprove the code. Deputy ThomasByrne recommended that the FinancialRegulator and FLAC should both beinvited back at a later date in order tofurther discuss the code of conduct onmortgage arrears.

Please see www.flac.ie for a full versionof the presentation and more informa-tion on FLAC’s campaign to reformcredit and debt law. Transcripts of thecommittee meeting on 29 April 2009are on www.oireachtas.ie - follow thelink for Committee Debates.

Research released by theImmigrant Council of Ireland(ICI) earlier this year showed

that 102 women and girls were traf-ficked into or through this country overa 21-month period for the purpose ofsexual exploitation. The researchreport, “Globalisation, Sex Traffickingand Prostitution: the Experiences ofMigrant Women in Ireland”, also foundmany hundreds of migrant women arebeing exploited in Ireland’s sex industry.The ICI has called for a comprehensive

and urgent response from the govern-ment to address sex trafficking andexploitation of migrant women and chil-dren, with the needs of victims at theheart of that response.

Funded by the Religious Sisters of Charity,the groundbreaking report is available athttp://www.immigrantcouncil.ie in PDFformat (hard copies of the Summary &Recommendations can be obtainedfrom the ICI office at 2 St AndrewsStreet, Dublin 2).

GGlloobbaalliissaattiioonn,, SSeexx TTrraaffffiicckkiinngg &&PPrroossttiittuuttiioonn:: TThhee EExxppeerriieenncceess ooff

MMiiggrraanntt WWoommeenn iinn IIrreellaanndd


The Irish Refugee Council’s newreport, The Single ProtectionProcedure--A Chance for Change, by

Brian Barrington BL, was launched by theHon Mrs Justice Catherine McGuinnesson 31 March 2009. It is hoped that therecommendations put forward in thereport will be realised with the enactmentof the Immigration, Residence andProtection Bill later this year and the cre-ation of the new Single Procedure forthose seeking international protection inIreland.

With the introduction of the SingleProcedure, the time period usually facedby asylum seekers under the currentprocess should be shortened significantly.An applicant will be considered forrefugee status, subsidiary protection andany other “compelling reasons” as to whythey should stay in the State. However, inorder for this new procedure to offer afairer and more efficient system, significantchanges still need to be made to both thelegislation and the administrative prac-tices. The Hon Mrs Justice CatherineMcGuinness welcomed the proposed pro-cedure, criticising the current one statingthat it was very prolonged and benefitsneither the applicant nor the State.

One of the main areas in which changewas recommended was with regards tothe proposal to introduce “frontloading”.This generally refers to the provision ofincreased legal resources at a very earlystage in the asylum process. It also envis-ages consultation between the legal repre-sentative and the interviewer before theinterview in order to identify the mainissues in the applicant’s asylum claim thatare in contention.The legal representativewould attend the hearing with the appli-cant, something that generally does nothappen at present.

After the interview, the interviewer andthe legal representative would meet todiscuss any further issues that needed tobe resolved, if any evidence is outstandingor if further written submissions arerequired. This model was carried out inSolihull in the UK as a pilot project and,when evaluating the project, it showed

higher recognition rates as well as lowerrates of appeals allowed, faster determina-tions and lower costs overall. On thisbasis it was recommended that the Officeof the Refugee ApplicationsCommissioner and the Refugee LegalService introduce frontloading. It isthought that such a model will lead to fair-er and more efficient decision making.

A Chance for Change also focuses on theimportance of ensuring transparency andaccountability. In Ireland, unlike in othercountries, guidelines on the protectionprocedure are not published. It is recom-mended that all current guidelines arepublished and that there be consultationon their revision to take account of thesingle procedure and any other points thatconsultees may raise. Furthermore atpresent neither the initial nor the sub-stantive interview is audio recorded byORAC. Audio recording is standard inmany counties including Sweden,Germany, Luxembourg and Canada. Inorder to alleviate any discrepancies ininterpretation and to protect the applicantand the interviewer alike, it is recom-mended that the initial and substantiveinterviews be audio recorded.This wouldprovide an accurate record and inspireconfidence in the asylum process.

The report compared protection statis-tics in Ireland to the rest of Europe and

it transpired that the overall positivedecisions to grant protection in Irelandis relatively low and that the recognitionrate is far below the EU average. It alsolooked at Judicial Review figures, many ofwhich are being taken and settled. TheHon Mrs Justice Catherine McGuinnessnoted that the fact we have such a highlevel of Judicial Review may indicate thatthere is a fault in the system. She alsoexpressed concern at the large numberof cases being settled, which at over 26%could indicate that something may bewrong with the current process. It is rec-ommended, amongst other things, thatfull statistics on Judicial Reviews com-menced against each of the bodiesinvolved in managing the immigrationsystem be published, including informa-tion on the defendants in cases, the stageat which settlements were reached, theoutcome of cases not settled, the type ofcases and the legal costs involved. It isalso recommended that research beindependently commissioned to investi-gate why the Irish protection recogni-tion rate is lower than the EU average.

These are but a few of the recommenda-tions put forward in the report, it is hopedthat by highlighting some of the areas thatcan and need to be improved upon, it willmean a fairer protection system and thatthose who are in need of protection willreceive it.


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In April FLAC launched its report, CivilLegal Aid in Ireland: Forty Years On.Lobbying for and working towards a

more comprehensive civil legal aidscheme has long been a core part ofFLAC’s work.

This document is timely given the increas-ing number of people who will requirelegal assistance and representation andwho may not be able to afford it as aresult of the current economic climate.

The report puts the spotlight on:

8 The scope of the civil legal aidscheme;

8 The practice and funding of theLegal Aid Board;

8 Financial eligibility to qualify for civillegal aid; and

8 A study of unmet legal need in thenorth east inner city area of Dublin.

In spite of certain improvements thathave been made to the civil legal aidscheme over the years, issues remain interms of meeting the unmet legal needsof marginalised groups and ensuring thevindication of their right of access to jus-tice.

In 2008 FLAC carried out a survey withthe help of some of its volunteers. It sur-veyed a range of organisations in thenorth-east inner city area of Dublin, thearea where our head office is situated.The purpose of the survey was to investi-gate issues of unmet legal need.

What FLAC found was:8 a lack of knowledge of basic legal

rights and entitlements among thepeople who presented themselvesat the organisations we surveyed;

8 legal services are neither adequatenor understood;

8 a majority of the organisations donot have the capacity to provide theadvice and services required. (Andindeed, it is not their role to providethe legal services omitted by thecivil legal aid scheme.)

FLAC learned that the major barriers toobtaining adequate legal information are alack of awareness that an issue or prob-lem may have a legal dimension and theprohibitive costs of seeking legal adviceand proceeding with a case.

The organisations reported that thethree legal areas most commonly dealtwith by them are local authority housing,social welfare and domestic violence. Yetthe civil legal aid scheme only readilyoffers assistance in one of these areas,domestic violence, which incidentally alsocomes under the criminal legal aidscheme. Social welfare issues are notcovered by the scheme at all and localauthority housing only on a very limitedbasis.

This highlights a fundamental flaw in thecivil legal aid system – the exclusion ofcertain areas of law, nine in total, from theremit of the work of the Legal Aid Board.As a result, many of the people who

require legal aid are denied it and as aresult are effectively denied their right ofaccess to justice.

For example, while civil legal aid may begranted to a person to take a case beforethe High Court, it is not available toaccess the Employment Appeals Tribunal,or most other tribunals such as theEquality Tribunal. This is in spite of thefact that these tribunals often the onlymeans by which certain groups of peoplewill attempt to access justice. Thesegroups are left with no legal support. Thisis not referring to individuals who work inthe Legal Aid Board or the quality of theirwork, this is a comment on the system.

The Legal Aid Board predominantly dealswith family law issues at over 90% of itswork, even though its actual remit ismuch broader.While family law is a veryimportant area of law for those who useits services, FLAC data – again collectedwith the help of the volunteers at FLACcentres – shows that only approximatelyone-third of the queries to FLAC centresrelate to family law. Awareness of theBoard and its actual remit should beimproved for both potential service usersand for all those involved in the adminis-tration of justice.

In 2009, the government faces enormouschallenges with the recession. That can-not be used as a reason to deny access tolegal services and representation to thosewho need it the most.

NNeeww rreeppoorrtt oonn aacccceessss ttoo jjuussttiiccee sshhoowwss mmaajjoorrggaappss ssttiillll eexxiisstt iinn ssttaattee pprroovviissiioonn

TTeeaamm FFLLAACC:: MMiinnii--MMaarraatthhoonn 0099


FLAC had its first ever team in thisyear’s Dublin Women’s Mini-Marathonon 1 June. Our sixteen walkers & run-ners were raising much-needed fundsfor FLAC under the banner of ‘EqualAccess to Justice: One Step at a Time!’Despite the heat, the team all man-aged to cross the line in respectabletimes and are already planning for2010. (See the back page for info onhow to donate to FLAC.)

88 F L A C N E W S l A P R I L - J U N E 2 0 0 9

FLAC unveiled its report on debtenforcement in Ireland at a pressconference in Dublin's Buswell’s

Hotel, chaired by FLAC Director GeneralNoeline Blackwell, on 6 July.

The report, To No One's Credit, details thedebtor's experience of the Instalment andCommittal Order process in the Irish legalsystem and proposes new measures aswell as amendments to existing proce-dures which will make the system moreefficient and human rights-compliant.

Blues singer Mary Coughlan launched thereport, relating her own personal experi-ence of debt enforcement, right up to thestage where Gardaí were waiting outsideher house ready to take her to Mountjoy.

Her re-mortgaging of her house to financea major tour resulted in the bank repos-sessing her home, but that was not theend of it. Pregnant at the time, with smallchildren, Mary was dismayed when evenher car was taken as well. Added to this,there was a shortfall in the sale price ofthe house which meant the bank pursuedMary for the outstanding amount over 10years, getting payments when she couldafford them.

Finally, the bank obtained an order for herimprisonment. With the gardaí outside,she rang businessman Richard Branson,with whom she was about to sign arecord deal, to see if he could help. “Hecame to a deal that I couldn’t come towith the bank in the previous 10 years,that was leading up to this, and evenbefore he signed me, he paid off my debt,”

said Mary. His deal cut the final amountpaid by almost half.

“But it has still followed me!” she contin-ued. “I still have a bad name with thosepeople. The rent has been paid everymonth. I have enquired, my mortgagewould be much less than the 1800 amonth, and I still can’t get a mortgage. So,it’s not just something that happened 20years ago, it’s every single day. My mostrecent refusal was last Friday from anoth-er banking institution, to say ‘I’m sorryMary but we can’t help you.’”

As FLAC's Senior Policy Researcher PaulJoyce pointed out, the “purpose of thisreport primarily is to give people in thissituation a voice.Up to now,people in thissituation are often talked about but theydon’t get a chance to articulate their ownsituation.”

Those surveyed in To No One’s Credit werefailed by our debt enforcement systembecause of “its lack of common sense, itslack of efficiency and primarily its lack ofcompassion.”

The report finds that two-thirds of thosefacing debt enforcement proceedingswere on social welfare when proceedingswere taken against them; none of thesepeople said they wouldn’t pay, they weresimply incapable of paying. Five ended upin prison.What the report makes clear isthat people are getting assistance far toolate.

Among FLAC’s recommendations are theneed for more user-friendly documents;

that creditors should be obliged to referdebtors to the Money Advice andBudgeting Service (MABS) at the earliestopportunity as a pre-requisite to havingthe right to bring legal proceedings.Debtors should be entitled to have advi-sors with them to put forward proposalson affordable repayments. Legal aid shouldbe made available either through the civilor the criminal legal aid scheme if a debtoris trying to keep him/herself out of prison.Imprisonment should be removed as anoption in debt cases and other types ofenforcement used such as attachment ofearnings. FLAC has also proposed analternative system, a Debt Reschedulingand Mediation Service, that would takedebt enforcement hearings out of thecourts.

Colin Daly of Northside Community LawCentre which represented Ms CarolineMcCann in the recent High Court casesaid that we need a new system whichtakes a “holistic view” of a debtors’ cir-cumstances. Mr Daly said it needs to giveprotection to priority payments like mort-gages, utilities, rent, light, heat and recog-nise a minimum income threshold. Hesaid it also needs to offer some degree ofprivacy “because this is possibly one of thebiggest barriers to people actually activelyengaging in the process.”

Patricia Rickard Clarke, chief executive ofthe Law Reform Commission, said thatthe Commission will be looking at respon-sible lending and mandatory codes;arrears management and debt settlement.“We’ve already produced a paper onmediation but we will be going into quite

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iF L A C N E W S l A P R I L Ð J U N E 2 0 0 9

In response to the establishment of thestate-run Legal Aid Board, in 1980 FLACdiscontinued its centres which provided

legal casework and court representation.However FLAC then reopened them as legaladvice centres. Short-comings in the statelegal aid scheme quickly became apparentalmost all of their resources were taken upwith family law work. Representation at tri-bunals was excluded, thus limiting the serv-ice it could provide in employment andsocial welfare matters.

FLAC addressed this gap by setting up a net-work of welfare rights advice centres in con-junction with other social service organisa-tions. However, FLAC itself faced difficulttimes. Having created the Legal Aid Board,the government ceased its funding to FLAC.Financing basic operations became a con-stant worry. Yet despite limited resources,FLAC responded to public demand byexpanding its range of advice centres.

FLAC’s finances improved in the mid-1980sas the Bar Council and the Law Societyorganised donations as did other agencies.

FLAC continued to take cases, primarilytesting welfare issues. Tens of thousands ofwomen won back-payment of welfarearrears as a result of the outcome of Cotter& McDermott vs Minister for Social Welfare &AG. FLAC acted on behalf of 1,800 marriedwomen in the Equal Treatment ArrearsCases and reached a settlement with theDepartment of Social Welfare in relation toarrears dating back to 1984. This case wasfinally settled in April 1994.

FLAC also continued to monitor and criti-cise the limitations of legal aid, notably in areport The Closed Door: a Report on Civil LegalAid Services in Ireland in 1987.

During the 1990s FLAC expanded its cam-paigning. Alongside legal aid and social wel-fare work, operations expanded to includehuman rights, credit and debt and immigra-tion. FLAC held a protest outside theDepartment of Justice in January 2002 yield-ing last-minute funding to FLAC ofIR£40,000 and enabling it to stay open, withpromises of continued support.

Another FLAC campaign aimed to pres-surise the government to expand the rangeof the state civil legal aid scheme. Althoughthe campaign led to the Legal Aid Boardgaining a statutory footing with the CivilLegal Aid Act 1995, its scope and fundingremained restricted.

In the 1990s, FLAC commissioned and pub-lished a range of studies and guides on socialwelfare and on evaluating FLAC’s social wel-fare campaigns. Written by Mel Cousins andGerry Whyte, the social welfare guides wereaimed at the general public.

The 1990s also saw the launch of FLAC News.

Together with MSF trade union, FLACorganised an annual labour law seminar formuch of the 1990s.

FLAC also began to develop an expertise incredit and debt. In 1993, FLAC began toresearch this area at the request of theEuropean Commission as Ireland had notyet implemented relevant EC Directives.This research culminated in submissionsbeing made to government on theConsumer Credit Bill.

Involvement in asylum and immigrationissues also developed. Working with theImmigration Law Practitioners’ Association,FLAC held a seminar on legal remedies fordiscrimination and racial attacks in 1993.FLAC was later among the organisationswhich successfully called for a legal aidscheme for asylum seekers.

FLAC was also involved in the successfulcampaign to remove the constitutional banon divorce in 1995, as well as the campaignto establish a community law centre inBallymun in the late nineties.

In 1999, the FLAC arranged its firstFellowship exchange in International publicInterest Law in conjunction with theUniversity of Washington, Seattle, USA.

Throughout this period, FLAC continued tooperate a growing number of legal advicecentres in conjunction with CitizensInformation Centres.

The 1980s and 90s saw a great expansion inFLAC’s areas of work, its core campaign con-tinues to be equal access to justice for all.

Few people would disagree with the con-stitutional principle that all people areequal before the law.We take for grantedthe notion that anyone appearing in acourt of law is entitled to an even-hand-ed application of the law without regardfor personal status or wealth. In practice,we should accept that this principle alsorequires equality of access to the lawand, by extension, equality of access toeffective legal assistance.– Iseult O’Malley, FLAC Chairperson, 1995.

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Irish Times, 28 January 1981

11 January 1980 – Bill Shipsey speaking ata FLAC meeting in TCDPhoto by Derek Speirs

February 1998 - FLAC Chairperson Siobhan Phelan with Pat Rabbitte TD atthe launch of Moneylending and the Law

iiii F L A C N E W S l A P R I L - J U N E 2 0 0 9

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1 Feb 1981: Gerry Durcan and Sue Doyle at a presenta-tion to Gerry for his work. Photo by Eamonn O’Dwyer.

Evening Herald, 3 June 1984

1 Feb 1981: Geraldine Shanley & Mary O’Malley at theFLAC AGM. Photo (also below) by Eamonn O’Dwyer.

4 Feb 1981: William Durcan, Ruairi Quinn, CatherineMcGuinness & Lily Doyle at Divorce Action Group

meeting, Mansion House.

Irish Times, 11 March 1985

Irish Times, 12 June 1986Irish Times,18 March 1981

12 Dec 1980:Walter Walsh & Bill Shipsey at FLACpress conference, Photo by Eamonn O’Dwyer.

F L A C N E W S l A P R I L Ð J U N E 2 0 0 9 iii


IrishTimes,21October1988

27 May 1995: Brian Gallagher, Peter Ward, Iseult O’Malley, Dr Anthony Clare and Carmel Stewart at FLAC conference on ‘Clearing the Way for Divorce’.

FLAC’s ResourcesManager SabhaGreene in 1996.

FLAC Solicitor Mary Johnson

in 1993.

At FLAC’s 25th anniversary celebrations in June1995, President Mary Robinson (L) is greeted by

FLAC’s Paul Joyce and Iseult O’Malley.

Jan 1992:Peggy O’Rourke &Siobhán Phelan picket for

FLACfunding at Dept of Justice

Irish Times,14 October

1996

Irish Times, 12 March 1984

14 July 1997: Gerry Whyte, Minister for Social WelfareDermot Ahern and Mel Cousins at the launch ofFLAC’s Guide to Sickness and Disability Payments.

2 October 1991: Eric Byrne TD, Mel Cousins andLeonie Lunny at the launch of Moving within the EC:

Your Rights to Social Welfare.

iivv F L A C N E W S l A P R I L - J U N E 2 0 0 9


Evening Herald, 4 January 1991 Irish Times, 14 March 1991

29 January 1997: Paul Joyce, Gerry Whyte, RTE’s CianaCampbell, Siobhan Phelan & Dave Ellis at the joint launch ofGuide to Maternity Rights & Social Welfare by FLAC & CCLC.

Irish Times,21 January1991

Left: 12 Oct1992: Launchof Civil Legal Aid Alliance.Back row L-R:AmandaJane Field BL, SusanMcKay, Eamonn Carroll,Karen Armstrong; Frontrow L-R: Grainne O’Hara,Mary Higgins, RoisinMcDermott.

14 June 1999: The Hon. Mr. Justice DonalBarrington (L) and FLAC’s Peter Ward (R)

present the first Thomas Addis EmmetFellowship to Nuala Ní Mhuircheartaigh.

30 Oct 1993: Eilis Barry, Matt MerriganSr, and Tony Kerr BL at the FLAC AnnualLabour Law Seminar at the MSF office.

a bit of detail on the need for appropriatedebt mediation in relation to debt settle-ment,” added Ms Rickard Clarke.

Speaking on behalf of MABSndl, AnneMarie O’Connor said that the reporthighlighted the importance of developingprotocols with a range of agencies.“We’vealready developed a protocol with theIrish Bankers Federation with a view toformalising existing processes and makingit easier to agree affordable, sustainablerepayment plans outside of the courts.”

Louise O’Mahony of the Irish BankersFederation, expressing the IBF's supportfor FLAC's proposals, said that the IBF’sPilot Debt Settlement Scheme includedthe “principle of a fresh start."

The idea that prison is an appropriatesanction by the State for somebody infinancial difficulties was queried by LiamHerrick of the Irish Penal Reform Trustwho said it was “great to see the IrishBanking Federation supporting this initia-tive.”

“It’s worth bearing in mind that very smallperiods of imprisonment can cause hugeharm to individual lives and their familiesin terms of family life, employment, long-term credit and so on,” he said. Even withshort sentences,“the effect that can haveon a vulnerable person can be life-lasting.”

The principle of imprisonment as a lastresort meant that all other alternativeshad to be tried first. It was clear from thereport that there were “many more prac-tical and effective” avenues which werenot being exhausted, which really showedthat the State was failing to observe thatprinciple.

F L A C N E W S l A P R I L Ð J U N E 2 0 0 9 99

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FLAC turns 40 in 2009 and theorganisation marked this milestonewith an event thanking volunteers

and supporters in Dublin's Mansion Houseon 25 April, attended by some 300 guests.President Mary McAleese spoke to thegathering, praising the initiative of theorganisation's founders, who were all pres-ent – former Attorney General DavidByrne SC,Denis McCullough SC,Mr JusticeVivian Lavan and retired Hong Kong magis-trate Ian Candy.

President McAleese spoke of the signifi-cance of FLAC's founding in 1969 for manypeople who needed legal assistance whennone was available:

From the moment its doors first openedFLAC was deluged.The unmet needs of somany of our citizens became undeniablyobvious as thousands sought the only helpavailable to them. The FLAC volunteersbecame advocates not just for those individ-uals but for a society where equality ofaccess to justice was a reality. It was theirpressure that provoked political change, theiradvocacy that brought epoch changingcases before the courts, in particular the leg-endary Airey case which, with the great helpof my predecessor Mary Robinson, was toset the scene for a new statutory Legal AidBoard.

The President acknowledged the difficultiesFLAC has encountered over the years andpraised the tireless work of volunteers,commenting, "to the extent that your workhas been substantially augmented, thoughnot replaced, by government providedservices, you can take considerable creditand pride in a job of proving and persuasionthat was well done."

President McAleese also recognised thefears and sense of exclusion experiencedby people facing legal worries and why itwas so crucial that people could rely onsomeone to help steer them through:

The legal world so familiar to many of ushere is often still impenetrable and frighten-ing to laymen and women. FLAC, possiblybecause it was set up by students still tryingto get their own heads around the languageand practices of the law, has always had ahuge sensitivity to that public fear and senseof exclusion. Part of its mission has been tobe the interpreter, guide, demystifier andfriend to those who would otherwise havefelt like outsiders.

Wishing FLAC and its volunteers contin-ued success, the President concluded thatthe future “will see the continuation of thepositive contribution to Irish society thathas been FLAC's hallmark since 1969." The four founders were presented withframed copies of the first comprehensivearticle published on FLAC, from the Irish

Times of 16 February 1970. David Byrne,speaking on behalf of the four founders,said it was one thing to have establishedFLAC,but another to have continued it.Hewanted to thanks all those who had volun-teered over the last 40 years.

FLAC's latest report on access to justice inIreland, Civil Legal Aid in Ireland: 40 Years On,was launched on the night – see page 7 forfurther details. FLAC’s new Public InterestLaw Initiative (PILA) was introduced toguests by its newly appointed manager,TonyO'Riordan (see opposite page for morePILA news). Finally, the gathering wasaddressed by Deputy Lord Mayor, EmerCostello.

The evening presented many with a chanceto meet old friends and former colleagues,and so it was not until the small hours thatproceedings ended, amid much music andchat.FLAC will be marking its 40th anniver-sary with other events in 2009 – pleasecheck the website for updates!


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President McAleese addressing the audience Dr Martin McAleese & President McAleese with FLAC Council (L-R):Roisin Webb, Iseult O’Malley, Liam Thornton, Don Crewe, Peter Ward

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FLAC marked the 40th anniversaryof its founding with a poetry read-ing at the James Joyce House,

Ushers Island,Dublin 8 on Sunday 26 April.

Irish poets Dennis O'Driscoll and JohnO'Donnell and US poet Jane Hirshfieldread from their work.FLAC was fortunateenough to be able to present poetry fromthree poets with connections to the lawand justice, the area in which the organi-sation campaigns and works.

Denis O'Driscoll, a noted and internation-ally acclaimed poet, studied law at UCDand his philosophical and thoughtful poet-ry has been described as seeking to "givea voice to the language of law and com-merce."

Jane Hirshfield, a leading US poet,has writ-ten six books of poetry, several transla-tions and two collections of essays. Shehas written several poems with justice asa central theme including the poem'Justice without Passion' in 2003, explain-ing later that the poem was inspired by a

hope that in the word 'passion' readersmight also hear the word 'compassion.'

John O'Donnell has been published innewspapers, journals and anthologies inIreland, England, Australia, and the UnitedStates. His most recent collection ofpoems is Icarus Sees His Father Fly, which

appeared from Dedalus in 2004.

The reading was generously hosted byBrendan Kilty, owner of the James JoyceHouse. FLAC was honoured to welcomethree esteemed poets with the shared aspi-rations of giving a voice to law and bringingcompassion to the pursuit of justice.

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Jo qualified as a barrister in Englandand worked as a legal advisor to theDepartment for Work and Pensions

for three years. During this time shedefended statutory appeals, judicialreviews and matters before the EuropeanCourt of Human Rights. She also advisedon the ECHR aspects of policy proposalsand legislation. Jo has an LLM inInternational Law and has worked as alegal researcher on textbooks on interna-tional law and human rights. She alsotrained and volunteered as an advisor atthe Citizens’ Advice Bureau.

On returning to Dublin, Jo worked as anassociate at Arthur Cox for 2 years andco-authored the pensions chapter in therecently published Employment Law(Tottels). She has volunteered with FLACas a law centre advisor and researcher.

Prior to her appointment to PILA, Joundertook a professional placement atthe Irish Human Rights Commission. Shedid her undergraduate degree in Spanishand Anthropology at St AndrewsUniversity and spent two years teachingEnglish in Madrid.

Lianne has a BA in History and Politicsfrom UCD and a LLM in InternationalHuman Rights Law from the Irish Centrefor Human Rights, NUI Galway. On com-pleting the LLM, Lianne interned in theHuman Rights Law Network in Delhi,India, where she wrote a research pieceon fair trial rights in the Indian criminaljustice system and worked with theWomen’s Rights Unit. She also got aninsight into how HRLN used public inter-est law in India. Lianne then completed aninternship in FLAC where she worked on

FLAC’s campaign to restore universalchild benefit.

Prior to taking the role in PILA, Liannewas Advocacy Officer in AmnestyInternational Ireland, working on lobbyingand researching areas in Amnesty’s advo-cacy programme on domestic issues,including trafficking in human beings, vio-lence against women, refugee rights, andchildren’s rights. She also worked onAmnesty’s human rights-based approachinitiative.

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Aformer Civil Rights activist inNorthern Ireland and then ajournalist before he became a

lawyer, Michael Farrell was a member ofthe Irish Commission for PrisonersOverseas in the 1980s and was involvedin the campaigns against miscarriages ofjustice like the Birmingham Six, GuildfordFour and Sallins mail train case.

He qualified as a solicitor in 1993, work-ing with Michael E. Hanahoe Solicitors, afirm which deals with a mixture of crimi-nal and civil cases. During his time inHanahoes, Michael worked on a numberof high profile trials in the Special CriminalCourt. He also did a lot of libel cases,reflecting his journalistic background,including cases for the Birmingham Six,when there was a smear campaign againstthem in sections of the British media aftertheir wrongful convictions had been over-turned. A few substantial settlementssoon put paid to the smear campaign.

Michael also worked on many ordinarycivil litigation cases, where he says helearned his trade.He acted in a number ofRedress Board cases for victims of abusein residential institutions. The details ofthe abuse were shocking but it was satis-fying to be able to help people who oftenwanted to be heard and believed as muchas to get compensation for what they hadbeen through. He did some work for theEquality Authority in pregnancy dismissaland gender discrimination cases and wassurprised to find how common this still is.He is really angry at how the EqualityAuthority has been undermined and hashad its budget slashed recently andbelieves that this will allow discriminationand bad practices to continue.

During most of the 1990s, Michael wasvice-chair and then co-chair of the IrishCouncil for Civil Liberties and since 2001he has been a member of the Irish HumanRights Commission.

He joined FLAC in 2005 as part of an initiative to try to increase the legalresources available to marginalised andexcluded groups. That has led to thePublic Interest Law Alliance,which aims to

stimulate more ‘buy-in’ topublic interest law by thelegal community general-ly.As part of the initiative,FLAC also aimed atincreasing the amount ofstrategic public interestlitigation it does.

The most high profileFLAC public interest caseis that of transgenderedwoman Lydia Foy, now inits twelfth year, andMichael pays tribute tothe FLAC solicitorsbefore him who startedand carried on this casein tougher times. LydiaFoy finally won her casein the High Court at theend of 2007 with the firstever declaration ofincompatibility with theEuropean Convention onHuman Rights (ECHR).

This outcome hasgiven a measure of recognition and hopeto a small and very vulnerable group andhas also showed how the ECHR Act 2003can be used to effect change.Unfortunately for Lydia Foy and othertransgendered people, the State hasdecided to appeal to the Supreme Court,underlining Ireland’s isolation from therest of Europe on this issue.

Other interesting cases included challeng-ing both the age limit for jury service –the law was amended before the casecould come to court – and the exclusionof deaf people from juries. A judgment isstill awaited in the deaf juror case over ayear since it was heard in the High Court.

However,much of Michael’s time has beentaken up with less high-profile but, in hisopinion, equally important work on socialwelfare appeals. It began with challengesto the withdrawal of Child Benefit fromasylum-seekers and immigrants under theHabitual Residence Condition for socialwelfare benefits and has expanded tochallenging the use of this condition to

block payment of other benefits as well.

There have been some significant success-es, including the recent rejection of a bid bythe Department of Social and FamilyAffairs to impose a blanket ban on any asy-lum seeker receiving benefits unless s/he isgranted asylum or leave to remain. It isgratifying to be able to stop something thatwould make life even harder for people forwhom it is hard enough already, he says.

In the short term Michael would like tosee full legal recognition of the rights oftransgendered people and would like asy-lum-seekers and immigrants – and espe-cially their children – to be entitled to thesame welfare benefits as anyone else. Inthe slightly longer term he would like tosee Ireland enthusiastically embrace theECHR and other international humanrights treaties it has signed up to, insteadof its present grudging attitude. And hewould like to see a legally enforceableright to at least minimum standards ofshelter and subsistence guaranteed toeveryone in our society.

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Ihave volunteered in FLAC in Finglasfor almost three years and haveencountered a wide variety of legal

queries. However, in the last year and inlight of the economic downturn, I havenoticed a huge change in queries to thecentre. In particular, queries aroundemployment have increased dramatically.These generally relate to a dismissal theemployee believes is unfair. Sadly, in manyof these cases the dismissal might be moral-ly unfair, but legally there is no redress.

Another growth area is debt collectionand repossession complaints on foot ofmortgage default. Rules on repossessionhave been addressed to a small degree,with agreement by some of the mainlenders to defer repossession proceed-ings for a period. But there is no suchassistance for debt collection and the vastmajority of such queries to the centreinvolve situations where clients havereceived summons to attend court, whichcauses huge upset and worry. Worryingly,legal aid generally does not cover debtcollection. Evidence suggests these com-plainants do not have the money toengage a solicitor and on most occasionsmust attend court unrepresented.

While family law usually forms a high per-centage of queries to the clinic, over thepast year difficulties with people losingtheir jobs, debt collection, mortgagerepayment difficulties etc., have led to ahigher percentage of family law queries, inparticular on unpaid or reduced mainte-nance payments. Indeed, at present,District Court judges are awarding a fig-ure of €0 to €20 in respect of mainte-nance where a father is unemployed.

Thankfully FLAC continues to provide asupport network for people with legalproblems and goes some way in assistingpeople affected by the current state of theeconomy.

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Case Study:

A recent case in Finglas FLAC involved a person who had left a full-time job inOctober last year for a permanent pensionable job in a very good company.This man is married and has children. He was on six month probation and hadhis review in March 2009. He was told at that point that he was being put ona further three months probation after which he was dismissed for havingunsatisfactorily completed his probationary period. This is a classic example,where the employer has an ‘out’, i.e., a way to avoid redundancy payments anduses it.

Tracy Ennis Faherty BL is avolunteer with Finglas FLAC,which has just moved officesto the new Finglas CitizensInformation Centre.

TTrraaccyy EEnnnniiss FFaahheerrttyy BBLL iinn tthhee nneeww ooffffiiccee ffoorr FFiinnggllaass FFLLAACC

Readers may be aware from pre-vious items in FLAC News that inJuly 2008, Ireland was reviewed

by the UN Human Rights Committeeunder the UN International Covenanton Civil and Political Rights (ICCPR).Asa result, the Committee produced itsobservations and recommendations asto how Ireland should best progress thedevelopments already made to furtherthe civil and political rights agenda in theState.

Together with the Irish Council for CivilLiberties and the Irish Penal ReformTrust, FLAC hosted a one-day confer-ence entitled Implementing Human Rightsin a Time of Change: Facing Up toChallenges under the UN InternationalCovenant on Civil and Political Rights on 6April 2009. The aim of the event was toensure that the ICCPR process is notforgotten with the issuance of theCommittee's recommendations; focusmust be maintained on the implementa-tion of the recommendations and inraising awareness of both the processand the recommendations in Ireland.The event was very well attended withalmost 150 delegates.

Keynote speakers at the event were UNHuman Rights Committee members:8 Judge Elisabeth Palm, Rapporteur

on Ireland and former judge of theSwedish courts and former Vice-President of the European Courtof Human Rights, and

8 Professor Michael O'Flaherty, Co-Director of the Centre for HumanRights at the University ofNottingham and the Irish electedmember of the Committee

Both speakers expressed dismay atongoing cuts to the budgets of the IrishHuman Rights Commission and theEquality Authority. Prof O’Flahertycalled the cuts a “scandal” and went onto say “it beggars belief that theGovernment has failed to designatehuman rights protection and promotionas a charitable purpose in the Charities

Act (2009)”. Elisabeth Palm saidshe was deeply disappointed by theheavy cuts which came only a shorttime after the Committee recom-mended to the government thatthe resources of the Commissionbe increased.

The morning session of the confer-ence was chaired by Dr MauriceHayes, former Chairman of theNational Forum on Europe. TanyaWard, ICCL Deputy Director, pro-vided an overview of the involve-ment of the three host organisa-tions with the shadow reportingprocess and James McIntyre of theDepartment of Foreign Affairsdelivered a brief statement on gov-ernment plans for follow-up.

The afternoon session was lead byrecently appointed Director of theNational Women's Council ofIreland, Susan McKay, who chaireda panel of three speakers followedby an open discussion forum. Thepanel of speakers included ÉamonnMacAodha, Chief Executive of theIrish Human Rights Commission,Michael Farrell, FLAC SeniorSolicitor and Dr Siobhan Mullally ofUCC. They were joined by speak-ers from the morning session foran engaging open forum where awide range of interested groupsgave their views.

The government is due to submitits next periodic report to theCommittee by 31 July 2012, but intheir Concluding Observations theCommittee stipulated three pri-mary areas of concern: prison con-ditions, rendition and religion ineducation. They requested that thegovernment report back to themwithin one year on these issues.



IICCCCPPRR ffoollllooww--uupp ccoonnffeerreennccee:: CCuuttss iinn hhuummaannrriigghhttss ""aa ssccaannddaall"",, ssaayyss UUNN eexxppeerrtt

FFoorr iinnffoorrmmaattiioonn oonn tthhee ccoonnffeerreennccee,,tthhee HHRRCC rreevviieeww ooff IIrreellaanndd aanndd tthhee

CCoonncclluuddiinngg OObbsseerrvvaattiioonnss,, sseeee::wwwwww..rriigghhttssmmoonniittoorr..oorrgg..

SSttaannddiinngg,, LL--RR:: LLiiaamm HHeerrrriicckk,, IIPPRRTT;; SSiioobbhhaann MMuullllaallllyy,,UUCCCC;; MMiicchhaaeell FFaarrrreellll,, FFLLAACC;; DDrr MMaauurriiccee HHaayyeess;;

EEaammoonnnn MMaaccAAooddhhaa,, IIHHRRCC;; SSuussaann MMccKKaayy;; SSeeaatteedd:: JJuuddggee EElliissaabbeetthh PPaallmm;; PPrrooff MMiicchhaaeell

OO’’FFllaahheerrttyy,, NNooeelliinnee BBllaacckkwweellll,, FFLLAACC

CCoonnffeerreennccee ddeelleeggaatteess

((LL--RR)) JJuuddggee EElliissaabbeetthh PPaallmm,, PPrrooff MMiicchhaaeell OO’’FFllaahheerrttyy&& DDrr MMaauurriiccee HHaayyeess bbeeffoorree tthhee eevveenntt

((LL--RR)):: EEaammoonnnn MMaaccAAooddhhaa,, PPrrooff MMiicchhaaeell OO’’FFllaahheerrttyy,,JJuuddggee EElliissaabbeetthh PPaallmm,, MMiicchhaaeell FFaarrrreellll,, DDrr MMaauurriiccee

HHaayyeess,, TTaannyyaa WWaarrdd,, IICCCCLL..

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The Chief Social Welfare AppealsOfficer has rejected a bid by theDepartment of Social and Family

Affairs to exclude all asylum seekers andpeople seeking leave to remain in Irelandfrom receiving social welfare benefits otherthan through the direct provision scheme.

In two cases decided in June and July,ChiefAppeals Officer Brian Flynn has rejectedclaims by the Department that people inthe asylum/leave to remain process can-not satisfy the Habitual ResidenceCondition (HRC) for social welfare intro-duced in 2004. FLAC represented thewomen involved in the cases.

Both women, one from Africa and theother from the Middle East, were unsuc-cessful asylum seekers who had thenapplied for protection or humanitarianleave to remain. Social Welfare AppealsOfficers had held that they had sufficientconnections with this country to satisfy theHRC and qualify for Child Benefit in addi-tion to the €9.60 per week they receivefor their children under direct provision.

The Department promptly asked theChief Appeals Officer to review thesepositive decisions and refused to pay thebenefit in the meantime. It claimed thatpeople in the asylum or leave to remainprocess were only “present” in thiscountry and could not be regarded as“resident” unless or until they weregranted asylum or leave to remain. Mere“presence” could not count towardssatisfying the HRC.

The Department based its argument on aSupreme Court decision in Goncescu v.Minister for Justice, Equality & Law Reformfrom 2003, i.e. before the HRC was intro-duced, which did not deal with social wel-fare issues. It also quoted advice from theAttorney General’s office which said thattime spent in the asylum process couldnot count towards ‘habitual residence’.

Unfortunately, the Department did notinclude another part of the AttorneyGeneral’s advice, which said that althoughtime spent in the asylum process couldnot count towards habitual residence,

length of time in the country was only oneof five factors to be taken into account inassessing habitual residence. It added thatconnections built up during the time peo-ple were in the asylum process could gotowards establishing habitual residence.

FLAC made detailed submissions to theChief Appeals Officer on behalf of theapplicants in a review process that tookmore than a year. In the end,Mr Flynn saidthat because the Goncescu case “did nothave a social welfare relevance and …predated the introduction of the habitualresidence condition legislation”, he doubt-ed its relevance to the cases in question.He also noted that the Department hadnot quoted the portion of the AttorneyGeneral’s advice which indicated that peo-ple in the asylum process could build uplinks during that time that would help tomeet the HRC.

He concluded in both cases that it wouldbe hard to argue that the applicants didnot satisfy the HRC. And he added in animportant passage:

I do not believe there was any intentionin framing the legislation [on the HRC] toexclude a particular category such as asy-lum/protection seekers from access tosocial welfare benefits. If there was anysuch intention,the relevant legislative pro-visions would have reflected that inten-tion and removed any doubt on the issue.

FLAC is involved in another six relatedcases awaiting decision by Mr Flynn butthe general principles seem to have beenclearly established in these cases. TheDepartment has not appealed the firstdecision.

The HRC is still in operation but theDepartment’s attempt to exclude every-one in the asylum/leave to remain processfrom qualifying under it has been firmlyrejected. And Mr Flynn’s decisions seemto point to a more flexible interpretationof the five factors used in assessing com-pliance with the HRC.

These are important and welcome deci-sions at a time of increasing hardship forthe most vulnerable in our society.


FFLLAACC ccaasseewwoorrkk rroouunndd--uupp

Arecent decision by the Department ofSocial and Family Affairs in a case

taken by FLAC should help asylum/protec-tion seekers who cannot obtain official doc-uments because the civil administration hasbroken down in their home country.

The Guardians Section of the Departmenthad refused to pay Guardians Payment inrespect of M, a young woman from anAfrican country where civil war and armedconflict have led to the collapse of the gov-ernment and administration in her area.

One of M’s parents had been killed in theconflict and she had lost contact with therest of her family when she came to Irelandand applied for asylum. She was givenrefugee status and went to live with a relativewho applied for Guardians Payment for her.

The Department refused because she couldnot produce an official death certificate forher dead parent, even though her guardianhad sworn an affidavit setting out her circum-stances and pointing out that it was impossi-ble for her to get an official certificate.

The Department was relying on legal advicegiven by the Attorney General’s office someyears earlier, saying that they should insist onofficial certificates and, oddly, that affidavitswere not proof of what was stated in them.

Following submissions from FLAC, theGuardians Section accepted that theAttorney General’s advice was given in rela-tion to the situation in Ireland and couldnot be applied to countries where theadministration had collapsed and certifi-cates could not be obtained. They alsonoted that where the Department ofJustice, Equality and Law Reform hadaccepted M’s credibility and had given herrefugee status without official certificates, itwould be “incongruous” for the GuardiansSection to demand a higher standard ofproof for social welfare payments.

They accepted that in such circumstancesand where no official documents were avail-able, affidavits should be taken into account.And they paid the benefit in M’s case.

Though this decision was made specificallyin the case of someone who had beendeclared a refugee, it is hoped that in futurethe principle of not insisting on documentsthat cannot be obtained will be appliedmore generally across the Department ofSocial and Family Affairs.

AAppppeeaallss cchhiieeff rreejjeeccttss wweellffaarree bbaannKKeeyy ddeecciissiioonn oonn bbeenneeffiittss ffoorr aassyylluumm//pprrootteeccttiioonn sseeeekkeerrss

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LLeeggaall cchhaalllleennggee ttoo ggoovveerrnnmmeenntt ccuuttss iinneeqquuaalliittyy aanndd hhuummaann rriigghhttss iinnffrraassttrruuccttuurree



MMaakkiinngg aacccceessss ttoo jjuussttiiccee ppoossssiibbllee

The Equality & Rights Alliance (ERA)plans to lodge a legal complaintwith the European Commission

and a parallel complaint to the PetitionsCommittee of the European Parliament thatIreland is in breach of EU Equality Law.

The initiative came from a Roundtable heldon 25 May to explore legal grounds forlodging such complaints. ERA, a coalition ofover 90 civil society groups, formed in reac-tion to government cutbacks to the humanrights and equality infrastructure in Ireland.

Speaking at the event, ERA ChairpersonJoanna McMinn said that Ireland could illafford to tear down its watchdog bodies,adding that “the Ryan Report shows howessential it is that Ireland has independent,well funded equality and human rights bod-ies to blow the whistle on behalf of vulner-able, and often voiceless,people at all times,”she said.

ERA's complaints centre on the independ-ence and viability of the Equality Authorityfollowing the 43% cut to its budget lastOctober as well as other ongoing develop-ments. At the Roundtable, European andIrish anti-discrimination and equalityexperts set out how the disproportionatenature of the cuts to the Equality Authority

and the Human Rights Commission formedthe nub of the case for complaint. This,combined with the threat of copy-catactions by other European governmentsalso looking to limit their equality bodiesduring the tougher economic times, meantthat a complaint should be taken seriouslyby the Commission and the Parliament, theyconcluded.

Anti-discrimination lawyer Orlagh O’Farrellsaid that “in the face of recession, can any-one doubt the case, not for less protectionfrom discrimination, but more?” Cuttingback on the rights infrastructure was a falseeconomy, she said, pointing out that in soci-eties with greater income inequality, morepeople are sent to prison and less is spenton education and welfare.

“This gives a hollow ring to our Minister forJustice’s explanation that he has halved theEquality Authority’s budget in order to per-mit increased spending on policing and tack-ling crime,” O’Farrell pointed out.

Lodging a legal complaint with the EuropeanCommission is the start of a process whichcan take two to three years. If accepted, theCommission must question the memberstate about issues raised within the com-plaint. If, after questioning, the complaint is

upheld, it then moves to the EuropeanCourt of Justice.

In April, UN Human Rights Committeemember Professor Michael O'Flahertydecried what he described as the ''scandal''of deep government cuts to the budgets ofthe Irish Human Rights Commission and theEquality Authority, only weeks after theUN's top human rights body had recom-mended that the resources available to theCommission be increased and its independ-ence strengthened. He was speaking at thefollow-up conference on the InternationalCovenant on Civil and Political Rights joint-ly organised by FLAC, the Irish Council forCivil Liberties and the Irish Penal ReformTrust - for more details see page 14.

FLAC has been working for equal access to justice for all people in Ireland since it was set up in1969. Forty years later, we are still campaigning, researching and providing practical help to peopleall over the country. In 2008, FLAC answered some 9,500 queries over its telephone helpline andprovided free legal advice to around 7,500 people via its centres around the country.

The current economic climate means increased strain on FLAC’s workload. If you would like to helpFLAC continue its work promoting equal access to justice for all, please consider making a donation to the organisation.

You can help FLAC by:8 Sending a cheque/postal order with your details to FLAC, 13 Lower Dorset Street, Dublin 18 Logging on to www.flac.ie and following the link to www.mycharity.ie8 Making a credit/laser card donation by completing and returning the donation form below:

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AAtt EERRAA’’ss RRoouunnddttaabbllee,, LL--RR:: EEqquuaalliittyy llaawweexxppeerrtt OOrrllaagghh OO’’FFaarrrreellll,, PPrrooiinnnnssiiaass ddee RRoossssaaMMEEPP,, ffoorrmmeerr EEqquuaalliittyy AAuutthhoorriittyy CCEEOO NNiiaallll

CCrroowwlleeyy,, FFLLAACC’’ss MMiicchhaaeell FFaarrrreellll..

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