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On 1 December 2008, FLAChosted the second annual lec-ture in memory of Dave Ellis

in Dublin. The keynote speaker wasSteven Shapiro, Legal Director of theAmerican Civil Liberties Union(ACLU), the largest and oldest generalcivil liberties organisation in the UnitedStates. Dave Ellis’ wife Sarah Flynn andvarious members of his family attendedthe lecture, as did Attorney GeneralPaul Gallagher SC and members of theJudiciary, many FLAC volunteers andsupporters and members of the public.

Opening the event, FLAC’s

Chairperson Peter Ward BL spoke ofthe continuing influence of Dave Ellis, apublic interest lawyer and activist foraccess to justice until his untimelydeath in February 2007. Referring toDave’s unwavering commitment and hismany connections to FLAC’s work,Peter pointed to FLAC’s law reformwork in the area of debt and consumercredit law – reforms that are particu-larly relevant in Ireland today. Pointingto the urgent need for better regula-tion of sub-prime lending and reform ofdebt enforcement procedures, herecognised the role of FLAC’s SeniorPolicy Researcher Paul Joyce, a long

time colleague of Dave Ellis, who hasbeen to the fore in providing analysisand solutions.

Steven Shapiro began his lecture byspeaking of the public interest law workof the ACLU, an organisation which, likeFLAC, is above all a campaigning organ-isation. Currently, the organisation isinvolved in about a quarter of all casesbefore the US Supreme Court eachyear; either directly or as an amicus curiae. It employs about 200 lawyers andhas an office in every US state.

[continued on page 8]

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

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flac News | Vol. 18, No. 4

F L A C N E W S l O C T O B E R Ð D E C E M B E R 2 0 0 822

iinn tthhiiss eeddiittiioonn......

Dave Ellis Memorial Lecture 1, 8-9

Opinion: Equality & human rights: increasingly under threat 2-3

Death of Tony Gregory 2

Social charter body rejects free travel complaint 3

Homeless asylum seeker settlescase against state 4

Rise in consumer, employmentqueries at centres 4

Draft Bill of Rights for NI 4

Nasc forum on Direct Provision 5

Hammarberg backs transgenderrights 5

Fellowship 2008: Report 6

New legal advice centres 08 7

FLAC needs you!!! 7

Follow-up ICCPR conference 09 7

Global credit crisis: How to protect households at risk? 10-11

Focus on FLAC staff 12

Student initiative on CommunityLegal Education 12

Volunteer training day 13

New social welfare law targetsrecession-hit homeowners 14

Focus Ireland aftercare campaign 14-15

Opinion: Code for repossessions 16

60 years of human rights 16

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

Editing & Layout: Yvonne Woods

Contributors: Noeline Blackwell,Saoirse Brady, Michael Farrell, SarahHorgan,Zoe Hughes,Paul Joyce,GillianKernan, Edel Quinn,Yvonne Woods

ISSN 07914148

Photos: FLAC, Mac Innes Photo, MoyaNolan, Derek Speirs, Jack Storms

The views of individual contributorsdo not necessarily represent theviews of FLAC.

EEqquuaalliittyy && hhuummaann rriigghhttss iinn IIrreellaanndd::

DDeeaatthh ooff TToonnyy GGrreeggoorryy

As reported in the last issue ofFLAC News, it seems that thestate’s equality and human

rights infrastructure is at ever greaterrisk of being dismantled by the stateitself.While the threat of merger of fiveseparate state agencies appears to haveabated for the present, drastic budgetcuts have nearly crippled the EqualityAuthority and are likely to cause majordifficulties for the Irish Human RightsCommission. A further blow to thehuman rights infrastructure has beenthe removal of the advancement ofhuman rights as an acknowledged crite-rion for recognition as a charity in theforthcoming Charities legislation.Finally, three important agencies infighting poverty and discrimination inIreland – Combat Poverty, NationalConsultative Committee on Racismand Interculturalism (NCCRI) and theNational Action Plan Against Racism(NAPAR) – have all been closed down.

Sadly, CEO of the Equality AuthorityNiall Crowley felt obliged to resignfrom his post in December, citing hisinability to maintain a false pretence ofnormal service where clearly theorganisation cannot carry out its man-

date. He had even suggested theAuthority could try to survive with acut of 32% rather than the incredible43% reduction imposed by the govern-ment – a cut overwhelmingly greaterthan that required of any other bodyunder the aegis of the Department ofJustice, Equality and Law Reform. Thisoffer was flatly rejected.

The broad community support for NiallCrowley – and for his difficult but bravedecision –contrasts with an almostcomplete absence of official commentaround these troubling developmentsprior to his resignation. It is very regret-table that he had to leave his job – a jobhe did very well – in order to draw seri-ous attention to the travesty underway.

The Charities Bill has been in draftform for a number of years now but itwas only at a late stage that a most seri-ous omission crystallised:The advance-ment of human rights, a pursuit recog-nised in many other jurisdictions as alegitimate activity for a charity, initiallyincluded in the original Heads of Bill,has been removed as a charitable pur-pose. It is worth mentioning that pro-tecting animal rights, promoting conflict

Everyone in FLAC was very sad-dened to hear of the untimelypassing on 2 January of Tony

Gregory, TD for Dublin’s north innercity where our offices are located.Tonywas well known to the organisation,having supported many of our cam-paigns and events.

Born and brought up in the north innercity, where he lived all his life,Tony wasall too familiar with the poverty anddeprivation in the area. He worked tire-lessly for over 30 years as a communityactivist, City Councillor and TD, tosecure decent housing and employmentfor his community and to combat the

scourge of drugs. His achievements canbe seen in the improved housing andthe community regeneration schemes inthe area and in the spirit of hope andpossibility in a once very depressedcommunity. The huge turnout of localpeople for his funeral showed therespect and affection he had earnedover the years.

Tony will be sorely missed by the popu-lation of Dublin’s inner city, especially aswe head into a time of recession whichwill hit hardest at poor and marginalisedpeople.

Ní bheidh a leithéad ann arís.

OOppiinniioonn::

[cont’d page 3]


F L A C N E W S l O C T O B E R Ð D E C E M B E R 2 0 0 8 33

SSoocciiaall CChhaarrtteerr bbooddyyrreejjeeccttss ffrreeee ttrraavveell

ccoommppllaaiinnttIInnccrreeaassiinnggllyy uunnddeerr tthhrreeaattresolution and working for environ-mental sustainability are all deemedcauses of such benefit to the communi-ty that they – rightly – warrant explicitlisting in the legislation.

The question remains: why is advancinghuman rights suddenly no longer acharitable purpose? Its exclusion meansorganisations that advance humanrights will have to now disregard thislegitimate and worthwhile aim whenseeking charitable status. Charitablestatus is essential to obtain funding, vol-unteers and donations or support gen-erally. Existing charities may retain theirstanding, but as part of a reviewprocess may be in danger of losing itunder the broad threat of maliciouscomplaint about their forbidden focuson human rights. An absurd but, sadly,feasible outcome of this inexplicabledecision.

That the Human Rights Commissionwas granted an additional once-off pay-ment of €250,000 at the end of 2008 isperhaps a tribute to the vigorous cam-paign against these cutbacks. But giventhat the Commission was already in thered because of chronic underfunding,this sum will only go towards payingoutstanding bills; it will not enable theCommission to carry out its full pro-gramme of work, which has been badlyaffected by the budget cuts.

FLAC believes the government mustcommit itself to upholding humanrights in Ireland, not just in other coun-tries abroad. We cannot afford to sitback and say that human rights inIreland are so secure that we do notrequire any monitoring. In response, acoalition of organisations campaigningfor a reversal of the cuts and astrengthening of human rights andequality in Ireland has formed. CalledERA (Equality and Rights Alliance), ithas undertaken several actions includ-ing a petition and a delegation to theOireachtas Committee on Justice,Equality, Defence & Women’s Rights on

10 December, which, perhaps ironically,was also International Human RightsDay. (Another, rather pointed irony wasthat at the same time as it was under-mining equality and human rights agen-cies at home, the Irish government wasco-sponsoring a motion to the UnitedNations General Assembly inDecember calling for greater supportand resources for national humanrights institutions.)

The final responsibility for these inde-fensible decisions lies with the Ministerfor Justice, Equality and Law Reform, MrDermot Ahern.What is now needed –before further damage is done to thesector – is to reverse the budget cutsand allow the Human RightsCommission and the Equality Authorityto do their work, monitoring and sup-porting human rights and equality inIreland. Further, the two bodies shouldbe made directly answerable to theOireachtas rather than theDepartment of for Justice, Equality andLaw Reform, which would be more sen-sible and practical given their remits.Finally, human rights should be recog-nised as a vital and legitimate charitablepursuit. Now is not the time – reces-sion or not – for short-sighted budget-ing that will store up very costly prob-lems for the future. It is exactly in theseconditions that, more than ever, weneed to protect human rights andequality for the benefit of Irish society.

The European Committee ofSocial Rights has rejected by10 votes to 4 a complaint by

FLAC and the International Federationof Human Rights (FIDH) about theexclusion of non-resident Irish pen-sioners from the Free Travel Schemefor older persons. These pensioners,most of whom live in the UK, are notallowed to use the scheme when theyreturn home to visit family and friends.

The Committee, which monitors com-plaints under the European SocialCharter, “recognised the close linksthat many wish to maintain with public,social and cultural life in Ireland“ butsaid that restricting access to thescheme to permanent residents of theState was not a breach of the SocialCharter. Former President of theCommittee Jean-Michel Belorgey fileda dissenting opinion, saying it was unac-ceptable for nationals of a country tobe excluded from benefits when theyreturned home simply because theywere not residents. A Turkish memberof the Committee also filed a dissent-ing opinion.

This was the first domestic case takenfrom Ireland under the European SocialCharter and despite the disappointingresult in this case, it is hoped that othercases on social and economic rightswill follow.

The decision on the complaint can befound on the Council of Europe web-site under the heading ‘Social Charter’.

• In late November 2008 FLAC receiveda visit from Antoine Madelin of FIDH.Antoine spoke about the work of theFIDH in its offices around Europe andfurther afield. He was in Dublin to visitsome NGOs and the Irish HumanRights Commission. With FLAC he dis-cussed closer co-operation on a num-ber of issues including the MigrantWorkers Convention.

http://www.fidh.org/

You can read the latestdevelopments on the

threats to equality andhuman rights in Ireland on:

http://eracampaign.org/

and sign the petition atwww.ipetitions.com/petition/erapetition/

You can also download thefactsheet on the Charities

Bill 2007 at

www.flac.ie/download/pdf/2008_12_08_pos_paper_on_

charities_bill_final.pdf



HHoommeelleessss aassyylluumm sseeeekkeerr sseettttlleess ccaassee aaggaaiinnsstt ssttaattee

On 23 October 2008 a case wastaken against the State onbehalf of an asylum seeker

from Afghanistan who sought a judicialreview of a decision by the Receptionand Integration Agency to evict him fromdirect provision accommodation.

A number of government departmentswere also named as defendants, includingthe Department of Justice, Equality & LawReform. Under section 3 of the EuropeanConvention of Human Rights Act 2003,these departments are obliged as “organsof the State” to act in a manner compati-ble with the Convention. The plaintiffapplied for an injunction requiring the Stateto provide him with basic subsistence.

The expulsion effectively rendered theman homeless; he was unable to avail ofhomeless services or social welfare assis-tance as he did not satisfy the HabitualResidence Condition. Furthermore, asasylum seekers are not allowed to workand are ineligible to receive RentAllowance, he could not access private

rented accommodation.

Lawyers for the man argued that therewas a violation of Article 3 of the ECHRwhich prohibits degrading or inhumantreatment. They cited a decision of theBritish House of Lords, R (Limbuela) vSecretary of State for the HomeDepartment [2005] HL 66, in which itwas held that destitution caused by theState’s action, or in some cases inaction,could constitute a violation of Article 3.The man, who suffers from a mental ill-ness, was evicted without being allowedto appeal the expulsion and was offeredno alternative accommodation. FLAC, aswell as a number of other organisations,has serious concerns relating to theimpartiality and fairness of the currentcomplaints procedure. Lawyers for theplaintiff argued that the lack of an inde-pendent and fair complaints mechanismbreached Article 6 of the EuropeanConvention on Human Rights.

There were also concerns that theexpulsion may have negative conse-

quences for the plaintiff’s asylum applica-tion since he would not have a postaladdress where he could receive corre-spondence. Failure to reply to such cor-respondence could lead to his asylumapplication being deemed as withdrawn.

At the initial hearing, Judge Hedigan stat-ed that it was “not an acceptable state ofaffairs” for a person with a mental illnessto be left on the street with no means.The plaintiff was accommodated indirect provision accommodation on thebasis of an undertaking to abide by thehouse rules. The parties agreed toadjourn until Thursday 30 October bywhich time they would make writtensubmissions. Due to the serious natureof the case, it was agreed to hold thehearing on the interlocutory injunctiontogether with the substantive issue,.However, the matter was then settledout of court.The plaintiff has been read-mitted to direct provision accommoda-tion on the condition that he wouldhave access to the appropriate medicaltreatment.

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During 2008, FLAC’s DataCollection Programmereceived over 7,000 data col-

lection forms. We are delighted that46 centres around the country partic-ipated in the programme last year, andare very grateful to our volunteersolicitors and barristers for taking thetime to complete the forms.

Preliminary results indicate that familylaw queries again account for roughlyone-third of all queries brought to thecentres last year, and also show a fur-ther rise in employment law, con-sumer law and credit and debt relatedqueries. Succession/probate and immi-gration queries appear to be downslightly on 2007 figures.

One in five callers to FLAC centreswas referred on to the Legal Aid

Board with the query, which mainlyrelated to family law.

A quarter of callers to FLAC centresin 2008 were advised to consult a pri-vate solicitor, and figures show thatonly one in ten of these were alsoadvised to seek civil legal aid.

This would imply that the legal advi-sors felt that either these clients’issues would not be covered by theLegal Aid Board or that the client’sincome was in excess of the financialeligibility criteria for civil legal aid.

Final figures for 2008 will be pub-lished in the next issue of FLAC News,and will be available to downloadfrom our website in early 2009.

The Northern Ireland HumanRights Commission has present-ed a draft Bill of Rights for the

North to the Secretary of State forNorthern Ireland. Provided for in theGood Friday/Belfast Agreement, it sets outsupplementary/additional rights to thosein the Human Rights Act 1998, whichincorporated the European Conventionon Human Rights into UK law.

The draft Bill contains provisions on arange of rights, including the rights of vic-tims of the conflict in the North, languagerights and the right to identity and cul-ture. There are provisions for making thesocial and economic rights contained inthe draft justiciable and enforceable bythe courts.The UK government will holda public consultation on the draft Billbefore deciding how to proceed.

www.nihrc.org


55F L A C N E W S l O C T O B E R Ð D E C E M B E R 2 0 0 8

On 14 November 2008 Nasc (theIrish Immigrant SupportCentre) hosted a public forum

in Cork on legal and welfare issues affect-ing asylum seekers living in direct provi-sion. The forum consisted of two panelsand was led by Nasc’s chairperson,Senator Dan Boyle of the Green Party.

The legal panel included inputs from ColmStanley, solicitor and Nasc board member,who discussed the current asylum applica-tion process and the difficulties faced byapplicants including the long delays in thesystem and also the culture of disbeliefwith which people are met by the author-ities. He commented that the system is“too often forgiving of the decision-makerin his mistakes but this does not alwaysapply to the applicant”.

Robin Hanan, CEO of the Irish RefugeeCouncil, gave an overview of the upcomingImmigration, Residence and Protection Billwhich will have little impact on thosealready in the asylum process but, hehoped, would improve on the current sys-tem. He referred to amendments put for-ward at Committee stage which totalledover 700.There is some indication that thegovernment may reconsider the issue oflawyers being accused of taking “frivolousand vexatious” cases on behalf of asylumseeking clients. FLAC’s Policy andCampaigns Officer Saoirse Brady spokeabout the negative impact the HabitualResidence Condition continues to have onpeople living in direct provision. She alsodiscussed current casework in this context.

The second panel of speakers dealt withwelfare issues. David Joyce from the IrishCongress of Trade Unions spoke on theright to work for asylum seekers. He stat-ed that ICTU supports the right to workcampaign for asylum seekers once theyhave been waiting for an outcome on theirapplication for six months. ICTU haspassed a resolution calling on the govern-ment to reinstate Child Benefit as a uni-versal payment.

A resident from one of the direct provi-

sion accommodation centres in Cork,spoke on behalf of the asylum-seekingcommunity about the hardship and the“mental challenge” faced by people livingin direct provision under the current sys-tem. She highlighted the lack of trans-portation to and from the centres and theisolation felt by residents.

Bernard Ruane, a GP in Tralee, told theforum that the Irish Medical Organisationhad passed a resolution calling for the rightto work for asylum seekers as a huge per-centage of those living in direct provisionare suffering from depression or relateddisorders. He described the differentstages which an asylum seeker wouldencounter during the course of their asy-lum application, as the positive feelingswhich they may have experienced onarrival in Ireland are replaced by feelings ofdespair on being left in direct provision.

Nasc Director Gertrude Cotterdescribed how asylum seekers are afraidto speak out about their living conditions.She also referred to the case of an Afghanasylum seeker evicted from direct provi-sion accommodation which resulted in hisbecoming homeless (see article opposite).Leave for a judicial review was given butthe case was then settled out of court. MsCotter stated that three individuals in sim-ilar situations had presented to Nasc inthe month following this potential legalaction. She raised other important issuesincluding the barring of NGO workersfrom direct provision centres in Cork aswell as the unsuitability of direct provisionaccommodation in terms of personaldevelopment, especially for children.

Fergus Finlay, CEO of Barnardos, gave theclosing address. He referred to theDepartment of Justice devising currentimmigration policy on the basis of nation-al security and suggested that attitudesneeded to change. He also commentedon a visit he had made to a particulardirect provision centre which he likenedto an “open prison”.

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Hammarbergbacks

transgenderrights

Council of Europe Commiss-ioner for Human RightsThomas Hammarberg devotedhis first weekly Viewpoint of2009 to a call for legal recogni-tion of transgendered peopleand an end to discriminationagainst them.

Commissioner Hammarbergnoted that there is still wide-spread ignorance and prejudiceagainst transgender people inEurope and discriminationranging from brutal attacks toobstruction and humiliation oftransgender people by official-dom.

Commissioner Hammarbergmentioned Dr Lydia Foy’s 10-year battle to get the HighCourt here to rule that theIrish Government’s failure torecognise her gender identitywas in breach of Article 8 ofthe European Convention onHuman Rights. Unfortunately, that battle isnot over yet as theGovernment has appealed theruling to the Supreme Court.

Commissioner Hammarbergconcluded: “There is no excusefor not immediately grantingthis community their full andunconditional human rights.Council of Europe MemberStates should take all neces-sary concrete action to ensurethat transphobia is stoppedand that transgender personsare no longer discriminatedagainst in any field”.

www.nascireland.org/

This item was first printedin the Public Interest Law

Bulletin. To subscribe to thisregular e-Bulletin, mail to

[email protected]


Kelly Mackey, a final yearstudent from DublinInstitute of Technology,

was the recipient of the 2008Fellowship. Kelly spent the summeras an intern in Seattle where shealso attended classes at the LawSchool of the University ofWashington. Here she gives anaccount of her time as ThomasAddis Emmet Fellow:

Under the FLAC Thomas Addis EmmetFellowship for Comparative Law in thePublic Interest, I spent nine weeks as alegal intern with the WashingtonAppleseed Center for Law in the PublicInterest. Washington Appleseed coordi-nates attorneys and public interest causesto provide legal solutions to social prob-lems that leave sections of society under-served and isolated. Through my timethere, I learned of the myriad of socialissues facing lawyers and vulnerablegroups in Washington State and also of thecomplex legal remedies for them.

Much of my time was spent researching thelegislative response of other states topredatory lending. My particular focus wason payday lending, a short-term, high-inter-est loan offered by cheque cashiers atextremely high-interest rates, which hasproliferated in recent years across theUnited States.This form of credit was fed-erally illegal until the mid-1990s, whenusury laws were liberalised to allow for thisnew small-money credit product.However,the past decade has demonstrated that themost financially vulnerable are becomingmired in debt as a result of payday loansand in particular because of their interestrates, which can rise to over 1000%.

My role was to document the legislativecaps on such loans in other states and thealternative credit options offering morefavourable interest rates provided bycredit unions, banks and other financialinstitutions. Documents arising from thiswork are now being disseminated tolawyers and NGOs to assist them in theirefforts to curb predatory lending. I was

also tasked with modifying a recentDistrict of Columbia Appleseed report oneconomic self-sufficiency and opportunityfor low-wage workers and their familiesto suit the Washington legal and socialenvironment.

Applying what I had learned of the pro bonorelationship between Seattle law firms andpublic interest causes, I also researchedand collated a report on possible avenuesfor a similar rapport to be establishedbetween firms of solicitors and publicinterest organisations in Ireland. I wasstunned to discover the difference in theapproaches taken by US firms of transac-tional attorneys and Irish solicitor firms topro bono activities in our respective legalsystems. In the US, the provision of probono work is an enticement for studentlawyers to firms. By contrast, in Ireland itseems that structured pro bono work—with the exception of the role of barris-ters—is not yet within the contemplationof most legal practitioners. It appears thatmany firms in Ireland do not realise thatthere is a role for them in pro bono initia-tives and hopefully this crucial role can berealised in the near future.

The valuable insights I learned in Seattlewere of course not limited to the office,Aspart of the fellowship, there were oppor-tunities to liaise with other public interestand lobby groups on pressing social con-cerns facing marginalised groups in

Washington at present, such as the provi-sion of pre-Kindergarten education to allchildren and the increasing prevalence ofhunger across the state. I also had theopportunity to attend General Externshipseminars for UW law students working inlegal internships. Here I met judges, publicprosecutors and defenders,bailiffs and oth-ers working in public law. From my inter-actions with Appleseed staff and also withother interest groups, I was able toexplore the contrasts between our twolegal systems and the similarities in the pas-sionate dedication to social justice demon-strated by our public interest law centres.


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ss2009 Applications

Applications are now invited for the2009 Emmet Fellowship. Candidatesmust compose an essay from a selec-tion of topics, discuss some relevantlegal issues, and outline experiencewith NGOs or voluntary bodies.

Law undergraduates, postgraduates,King's Inns students and Law Societystudents are eligible to apply. TheHonourable Mrs Justice CatherineMcGuinness chairs the AdjudicationCommittee.

You can download an applicationform/information leaflet from theFLAC website at: http://www.flac.ie/about/fellowships/howtoapply.html



Over the past twelve months,FLAC has expanded its net-work of legal advice centres

throughout Ireland. Many of these cen-tres were set up thanks to the work ofdedicated citizens’ information staff insourcing local solicitors and barristers.

New centres in Balbriggan and Nenaghare evidence of this; the centre in theBalbriggan Citizens’ Information Centrestarted in April 2008 as a monthly servicebut has since increased its hours and willrun as a weekly service from January2009. The new centre based in theNenagh CIC will also open in January2009 and will run on a monthly basis.

In October, FLAC opened a new centrein the Blackpool Citizens’ InformationCentre in Blackpool, Cork City.This cen-tre runs on the second and fourthWednesday of the month – alternateweeks to the centre on South Mall inCork City.

In December we also saw the establish-ment of an immigrant advice service inthe Galway CIC. This runs on the firstWednesday of the month and will bring amuch-needed service to Galway City.

The current economic climate has

caused an increase in the number ofemployment law queries in our centreswhich in turn has meant a surge indemand for our specialised family andemployment law centre on Meath Streetin Dublin’s south inner city. The centreruns on the first three Wednesdays of themonth and is staffed by two employmentlawyers and one family lawyer who dogreat work in helping clients with oftenvery complex queries.

FLAC also extended its immigrationadvice clinic in the CIC on North KingStreet to a weekly service in 2008. Wehope to continue with the expansion offree legal advice centres in 2009. Wewould like to thank all our volunteers forworking towards greater access to jus-tice for all in making legal informationand advice available to so many.

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FLAC, the Irish Council for CivilLiberties and the Irish PenalReform Trust are to continue

work on the International Covenanton Civil and Political Rights (ICCPR)by organising a follow-up conferenceon 6 April 2009.

Having ratified the ICCPR in 1989,Ireland undertook to report periodi-cally to the UN Human RightsCommittee which monitors stateimplementation of the Covenant.Ireland’s third periodic report was

examined by the Committee inGeneva in July of this year. A ShadowReport to the state’s report, producedby a coalition of the three organisa-tions, was also submitted to theCommittee.

This, together with a presentation ofthe report in Geneva, was very wellreceived. The Committee adopted itsConcluding Observations on Ireland inlate July, detailing over twenty areas ofconcern and recommendations for thegovernment on implementing the

Covenant in Ireland. FLAC, the ICCLand IPRT feel that it is vital that thisprocess does not end here and thatstakeholders are given the opportuni-ty to discuss the issues highlightedboth by the Shadow Report and theConcluding Observations and theimplementation of the Committee’srecommendations.

We hope that members of the UNCommittee will also attend the event,.For details, keep an eye on www.flac.ieand www.rightsmonitor.org.

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You can subscribe to FLACNews for €10 a year from:

FLAC, 13 Lower DorsetStreet, Dublin 1

Tel: 353-1-874 5690Lo-Call: 1890-350 250Fax: 353-1-874 5320E-mail: [email protected]: http://www.flac.ie

FFLLAACC nneeeeddssyyoouu!!!!!!

FLAC is aiming to send a teamof runners, joggers, walkers,leppers and crawlers to the2009 Women’s Mini-Marathon in Dublin city cen-tre, with the aim of raisingsome much needed funds butalso to have a great day out.This year the marathon willtake place on 1st June – it mayseem very far off while we arestill in the throes of winter,but the time flies along sothere’s no time to waste ingetting organised!

If you would like to run themarathon for FLAC, please letus know and we will send youout an information pack withdetails of how to enter andother goodies. You can alsohave a look at the dedicatedwebsite (www.womensminimarathon.ie) which haseverything you could wish toknow about the event itself,pre-training schedules andgroups, and plenty more.

And of course keep an eye onthe FLAC website for moredetails of 2009’s Team FLAC!

88 F L A C N E W S l O C T O B E R Ð D E C E M B E R 2 0 0 8

[cont’d from front page]

However, while using public interest liti-gation as a tool to promote rights, andrecognising it as a “powerful engine ofsocial change”, Steven also acknowl-edged its limitations. He suggested thatlitigation “cannot be divorced from itslarger political context”. In his view,courts will rarely move ahead of politicalsentiment.When they do, they risk pro-voking a backlash that will negateprogress made. He described humanrights as a political struggle that requiredlitigation but also grassroots organisa-tion and coalition-building.As he said: “itis hard to maintain change without pop-ular support”. In answer to a questionafter his speech, he developed this pointby saying that grass roots support wasnot just effective in widening access tojustice on a community level, but alsosuch support yields a wider base forhuman rights cases to be built. He point-ed out that the communication withcommunities is a two way process,allowing the ACLU to learn from com-munities as well as vice versa.

The bulk of Steven’s talk centred on theACLU’s work in protecting and defend-ing rights during the BushAdministration.The US has “witnessed alegal struggle...not only over nationalsecurity and human rights, but over theprinciple of separation of powers anddivided government that is so basic tothe US governmental structure.” TheSupreme Court, despite its rather con-servative composition and reputation,has been central in upholding manyrights at risk during the so-called ‘Waron Terror’. The ACLU has raised issuesof detention in Guantanamo Bay and theillegal ‘rendition’ of people around theworld in the court as well as clarifyingquestions of habeas corpus and constitu-tional jurisdiction. In contrast, a numberof the lower courts have firmly backedthe new order and have used “a varietyof court closing judicial doctrines to barany serious judicial enquiry into govern-ment policies”.

Steve cited a number of ACLU cases to

illustrate both the power and the pow-erlessness of the courts to defend rights.The most astonishing case was that ofKhaled El-Masri, a German citizen.

In a horrific case of mistaken identity, El-Masri was secretly abducted by USagents in Macedonia, taken from therevia Baghdad to Kabul and held and inter-rogated for over 4 months secretly, inappalling conditions. While it appearsthat his captors discovered very quicklythat he was not the person they wanted,it took them months to decide how todeal with him. Ultimately, he was uncer-emoniously flown to Albania where hewas released without apology or expla-nation in the countryside. During all thistime, no one in his family or countryknew where he was. Eventually reunitedwith his family, he began the quest to findout what had actually happened. He stillhad no idea why he had been kidnapped.

The case became well-known through-out Germany and eventually El-Masribrought a case through the ACLU in theUS courts against the Director of theCIA and others. The governmentopposed the case on an argument thaton its face seems tortuous but whichwas ultimately upheld by the courts.Thegovernment’s argument was that it couldneither confirm nor deny any allegations.If it had been involved in the events sur-rounding El-Masri’s detention, thoseevents were necessarily covert and sothe government could not speak aboutthem - even if they had happened - whichit would not admit. As a result, the USgovernment argued, it could not defenditself and the case must be dismissed.Despite the overwhelming evidencecompiled by the ACLU including evi-dence of the German government andCouncil of Europe, the court found infavour of the US government and threwout the case, rejected the subsequentappeal and declined to review it.Thus,MrShapiro emphasised, there are limits tothe power of the courts in restrainingexecutive action in the US, even if it maystop the worse excesses.

Steven Shapiro was optimistic regardingthe incoming Obama administration’s

intentions to close down theGuantanamo Bay facility. However hesounded a note of caution regarding thesubsequent fate of detainees, as the chill-ing notion of ‘indefinite preventativedetention’ has been raised in the US.Thiswould see cases being “periodicallyreviewed by a judge, subject to standardsthat have yet to be articulated, and pur-suant to procedures that have not yetbeen identified, but that if theGovernment satisfies its burden ofproof, whatever it may be – every sixmonths let us say – then it can keep peo-ple in detention for perpetuity, as long asevery six months it goes back to a judgeand gets a judge to sign off.”

Steven’s concluding point focused on theuniversality of human rights:

And so, part of the message that Ibring to you from the United States– recognising that we have differentlegal systems, different cultures, dif-ferent political experiences, differentpolitical systems – is that the role ofhuman rights advocacy and humanrights advocates is indispensablethroughout the world. That themeaning of universal human rights isthat they apply universally. And thathuman rights have no meaningunless they are enforced. They arenot enforced on their own.

In the final question and answer session,Steven described increasing restrictionsaround the use of class actions, includingthe absence of legal aid. In ACLU’s view,as class actions cannot now be legallyaided, there is a need for more imagina-tive approaches even in a country likethe United States with a relativelyentrenched system of public interest law.

In conclusion, FLAC Director GeneralNoeline Blackwell spoke of the worryingattacks on equality and human rights inIreland evident in the wholly dispropor-tionate budget cuts to the Human RightsCommission and Equality Authority andthe failure to include the advancement ofhuman rights as a ‘purpose beneficial tothe community’ from draft charities leg-islation.

DDaavvee EElllliiss MMeemmoorriiaall LLeeccttuurree 22000088 llooookkss aatt tthhee



You can read a synopsis of his address onthe FLAC website and we hope to alsoupload an audio version to the site in thenear future.

eevvoollvviinngg llaannddssccaappee ooff hhuummaann rriigghhttss iinn tthhee UUSSAA

You can find more information online at:

http://www.aclu.com

http://eracampaign.org/

http://www.ipetitions.com/petition/erapetition/

http://www.flac.ie/download/pdf/2008_12_08_pos_paper_on_charities_bill_final.pdf

Pictured at the lecture (L-R): Michael Farrell, FLAC Senior Solicitor;Steven Shapiro, ACLU; Attorney General Paul Gallagher; and

Peter Ward BL, FLAC Chairperson

Members of Dave EllisÕ family at the lecture

Steven Shapiro pictured with FLAC Director General, Noeline Blackwellat the Second Dave Ellis Memorial Lecture.

ACLU Legal Director Steven Shapiro (R)with Attorney General Paul Gallagher

Phot

os ©

Der

ek S

peirs



On 13 and 14 November 2008,interested parties of all typescame together in London to

discuss the global credit crisis thatturned the world’s financial system onits head in the latter half of 2008. FLACwas also there.

The event was organised by the Centrefor Economic and Social Inclusion(Inclusion) and the British charity, Debton our Doorstep, and supported byEuropean Coalition for ResponsibleCredit (to which FLAC is currently thesole Irish affiliate) and the US-basedNational Community ReinvestmentCoalition. The conference was held toexchange views on the causes of thecurrent crisis and its effects on con-sumers and financial systems in coun-tries right across the globe.

Noting that taxpayers worldwide arepaying the bill for the irresponsiblelending of banks but that it is house-holds who are feeling the worst effectsof the crisis, the conference took as itscentral theme the need to provideimmediate support for at risk house-holds, to focus on solutions for thosewho are indebted and the need to layground rules to govern the future pro-vision of credit. These aspirations aresummed up in the ‘LondonDeclaration’, a statement of principleswhich all governments are urged toadopt to protect vulnerable con-sumers, as the full effects of the crisisand the global downturn hit home in2009.

Day OneThe first day of the conference includ-ed a contribution from Professor UdoReifner, Institute of Financial Services,Hamburg and Chair of the EuropeanCoalition, who noted that a three tril-lion underwriting of banks was in placeand yet not a single cent had beenreceived in government support forthis conference. He suggested thatfinancial institutions’ less than con-cerned attitude to customers was evi-dent in their language. For example, we

should be speaking not of the adminis-tration of risk but the prevention ofrisk, not of creditworthy people butpeople-worthy credit. What is a non-performing loan, he asked? Surely it wasthe person who borrowed the moneywho was not performing. Risk ofdefault could not be hidden by packag-ing loans as investment vehicles,because risk was a people problem.Ultimately, he concluded, only sociallyresponsible banks are safe.

Regina Jensdottir, Head of the Publicand Private Law Unit of the Council ofEurope’s Human Rights and LegalAffairs section, outlined the reasoningbehind the Council’s decision to issue arecommendation (REC(2007)8) onlegal solutions to debt problems. Shealso stressed the need for a betterunderstanding and more balanced useof credit as an instrument of economicgrowth.

A panel discussion followed on whatcaused the crisis and what tomorrowmight bring, which included two bank-ing representatives sounding appropri-ate notes of contrition. A representa-tive of CitiBank (which to be fair hadsponsored the conference) made aconstructive contribution on the stepsit was taking to prevent repossession offamily dwellings in the USA, involvingboth a ‘Home Assistance’ programme,designed to anticipate problems andthereby restructure loans, and a ‘volun-tary foreclosure moratorium’ subjectto borrowers meeting a number of sta-bility criteria.

The British Bankers Association repre-sentative provided a forensic explana-tion of how the crisis occurred,remarking that former US President BillClinton’s policy of promoting access tohousing for those on low incomesmarked the beginnings of the sub-primesecuritisation trend in the US.This wasrejected by John Taylor, Chief Executiveof the US-based National CommunityReinvestment Coalition, who said hewas tired of the inaccurate suggestion

that loans to poor people caused thecrisis. Toxic refinancing loans, he said,granted to higher income, already over-extended consumers, were far moreresponsible and these only took off in2003. He argued that the crisis wascaused by Wall Street investment firmslooking to find a profitable home formoney and might have been averted byproper consumer protection and regu-lation. Reverend Graham Blount, Chairof Citizens Advice Scotland and Debton our Doorstep, said that out-of-touch governments and people them-selves had become convinced that suc-cess as a nation could be measured bythe profits of banks. He asked that weshould put in place interest rate capson credit and nurture community-based finance initiatives.

Of two workshops, the first dealt withthe potential of the revised EU con-sumer credit directive and the Councilof Europe recommendation on legalsolutions to debt problems in dealingwith the current crisis. Ultimately,members seemed to agree that thedirective had been overtaken by eventseven prior to its transposition inMember States and it would do little toprevent irresponsible lending. TheCouncil of Europe recommendationhad more potential but less prospect ofenforcement.The second workshop on‘Who rescues insolvent consumers’looked at the variety of models of con-sumer bankruptcy across Europe.Although not new, the absence of anysuch developments in Ireland – despiteits credit boom and debt bust – is againparticularly marked.

Day One closed with 18 reports on theeffects of the credit crisis in individualcountries. FLAC’s Paul Joyce had thevery dubious pleasure of trying to sum-marise the Irish situation in less thanfive minutes.What was noticeable fromthis session and informal conversationthroughout the event is that the effectsof the credit and debt crisis on con-sumers seem more pronounced inEnglish-speaking countries. People in

GGlloobbaall ccrreeddiitt ccrriissiiss:: HHooww ttoo



Scandinavian and Benelux countries,Germany and France, less fixated onhome ownership and multiple creditcard use and many cases having interestrate ceilings on loans in place, were suf-fering less even though they too wereheading into recession.

Day TwoThe keynote address on day two wasgiven by Martin Wolf C.B.E., AssociateEditor of the Financial Times, whodeconstructed the causes of the col-lapse. Extreme inflation stability, heexplained, had provided an ideal back-ground for risk-taking. Rising confi-dence fuelled the purchase of assetswith debt, with the hope that the assetspurchased would appreciate in value.‘Success breeds excess’ he suggested.When assets do not appreciate, confi-dence wanes and asset values collapse.In his view, a deep and prolonged reces-sion was inevitable. To combat it, hesuggested that fiscal discipline shouldbe parked, governments should spendand interest rates should be reduced tozero (advice that the UK since appearsto be following). In terms of lessonslearned, he believed that liquidity mustbe better managed in the future andthat the balance sheets of the majorbanks need to be controlled as they arecontingent liabilities of the State.

In the panel discussion that followed,many contributors suggested that a fail-ure to properly regulate had con-tributed significantly to the crisis. DougTaylor of Which? (the UK consumermagazine) made the point that respon-sible lending is not just about assessingaffordability; products must also be safeand fair to consumers. Creditor repre-sentatives noted that a more compre-hensive dialogue between the industryand consumer groups was needed, aswere ongoing consumer education pro-grammes.

An afternoon workshop on irresponsi-ble lending featured contributions fromSouth Africa, the US, the UK and Japan.Peter Setou of the National Credit

Regulator‘s Office provided details ofSouth Africa’s National Credit Act (inoperation since June 2006) which put inplace a new infrastructure for regulat-ing consumer credit. Features of thissystem include the compulsory regis-tration of credit bureaux and debtcounsellors, a consumer complaintsprocess to the Regulator with a right ofappeal to a National ConsumerTribunal and a debt rescheduling mech-anism that has already had 35,000 appli-cations. Reckless lending is specificallyprohibited under the Act, with creditproviders obliged to carry out anassessment of the consumer’s under-standing of the proposed credit, previ-ous payment history and financialmeans and obligations before enteringinto an agreement. Where an agree-ment is deemed to be reckless, a courthas the power to reschedule its terms.

Matt Lee, a board member of theNational Community ReinvestmentCoalition, outlined the purpose of the1977 Community Reinvestment Act inthe US to encourage banks to meet thecredit needs of low and middle incomeneighbourhoods. He said that, crucially,penalties for non-compliance wereslight and sub-prime lenders had not byand large abided by the Act.Opportunities for public review ofcredit provision had, in his opinion,diminished under Republican adminis-tration, with mergers being approved atshort notice and little Federal concernor regulation of sub-prime.

Nigel Cates of the UK Office of FairTrading gave an account of its currentproject on irresponsible lending. Publicconsultation informed its intention totake a wide approach to the questionand it would look at not just the assess-ment of the borrower’s capacity torepay, but also advertising, marketing,and selling techniques, product design,use of appropriate credit scoring tech-niques, and how cases of default orarrears are handled. The identificationof irresponsible lending practices mightthen have a future impact on the grant-

ing of credit licenses under the con-sumer credit legislation.

Finally, Saya Oyama of Kinjo GakuinUniversity, Nagoya, recalled the 1998debt crisis in Japan, where bank failureled to three million job losses andsome 30,000 suicides, many promptedby over-indebtedness. Since then, aseries of legal challenges had succeededin reducing the maximum credit inter-est rate from 109.5% in 1994 to 29.2%in 2002 and to 20% in 2006. Personallending of over one-third of a borrow-er’s income had been banned.Togetherwith improved debt advice services,education programs and public con-sumer finance, the indebtedness prob-lem in Japan had therefore stabilised.However, the potential downside ofsuch a strategy included reducedaccess to credit, perceived harm to theeconomy and the encouragement ofloan sharking.

The final plenary session agreed thatcommon principles of responsible lend-ing needed to be adapted to create abetter financial world. There was aclear sense from speakers, includingcreditors, throughout the conferencethat a much more balanced approachto the provision of credit was required.However, it may be easier to sound theright notes in the middle of a crisis. Asone delegate pointed out, banking is abusiness and employees were underhuge pressure to sell credit.Responsibility must come from the topdown, not just in credit institutions, butalso from regulators and governments.

pprrootteecctt hhoouusseehhoollddss aatt rriisskk

See the ECRC website atfor the text of the ‘London

Declaration’ and moredetails on the Coalition, its

aims and a full list ofmembers:

www.responsible-credit.net



As Policy and Campaigns Officerin FLAC, Saoirse Brady’s roleinvolves analysing certain gov-

ernment policies to see if they are in linewith the work of FLAC. She assistsMichael Farrell, senior solicitor in FLAC,with social welfare cases. She has beenresearching the system of direct provi-sion and is currently updating the FLAC2003 report in this area. She expects thenew report to be out in 2009.

Saoirse works on campaign strategies forall of FLAC’s work, such as the promo-tion of FLAC’s campaign to restoreUniversal Child Benefit. Saoirse alsoworks alongside other NGOs and offersassistance and guidance especially in

cases relating to the Habitual ResidenceCondition.

Saoirse has a BCL degree from UniversityCollege Dublin. During her undergradu-ate studies, she spent a year on Erasmusin Italy. She also holds a Masters inEuropean Studies from the DublinEuropean Institute in UCD. As part ofher Masters, Saoirse also studied Spanish.After finishing university, Saoirse workedas a legal researcher for the Commissionto Inquire into Child Abuse. Herresearch focused on the abuse in indus-trial schools.

Saoirse then went on to be awarded theFrank Jennings Internship with FrontLine, the organisation working forHuman Rights Defenders. This intern-ship gave her experience working for theprotection of human rights defenders.During the course of her internship, shespent four months working in the UNOffice of the High Commissioner forHuman Rights in Geneva where sheworked with Hina Jilani, the former UNSpecial Representative for Human RightsDefenders.

In September 2007, Saoirse joined FLACas she wanted to get some experienceworking on human rights at a nationallevel. Her father worked in welfare rightsso she had a grounding in social welfare

and social justice issues in Ireland.

According to Saoirse, the most rewardingpart of her work is being able to providepeople with legal information and steer-ing them in the right direction. Saoirsealso feels lucky to be able to work along-side the experienced and dedicated fel-low staff members in FLAC and she feelsthat there are always people in the officewho are willing to help her.

One area of law where Saoirse wouldlike to see change is in the application ofthe Habitual Residence Condition. Shefeels that the application does notalways take people’s individual circum-stances into account. This has causedgreat hardship for many families, espe-cially asylum seekers.

Recently, Saoirse was very disappointedthat the amendment to the Charities Billto include the advancement of humanrights as a charitable purpose was struckdown in the Seanad Debate. This is a cru-cial part of many organisations’ work andopens the way to them being ‘accused’ ofdoing human rights work, a ridiculous sit-uation. The reluctance to include humanrights in the Bill was even more starkgiven that these debates took place in thesame week that celebrations took placeto mark the 60th anniversary of the UNDeclaration of Human Rights.

FFooccuuss oonn FFLLAACC SSttaaffff:: SSaaooiirrssee BBrraaddyyPPoolliiccyy && CCaammppaaiiggnnss OOffffiicceerr

FLAC is initiating a StudentInitiative on Clinical LegalEducation in conjunction with

Irish law schools. This will enable lawstudents to get involved in providinglegal information and services to mar-ginalised groups in Irish society.

The students, supervised by qualifiedlawyers, will deliver legal information tothe public through workshops for vari-ous community groups. The aim is topromote access to justice by improvingpublic understanding of law and thelegal process and informing people

about their legal rights and duties.

The second key component involves avirtual legal advice centre for the public.This web-based resource will answerstandard queries in a style that will directthe caller through scenarios based ontypical questions to our telephone infor-mation line. Law students can volunteerto help conduct the legal researchinvolved, which will be substantial. Thiswill require students to work in smallgroups and prepare questions andanswers on a particular topic, e.g. pro-bate or immigration law. Students are

overseen by a qualified practitioner-tutor.They can use this research for presenta-tions to community groups. The pro-gramme will allow students to apply thelegal principles they have learned while atthe same time developing the interper-sonal and analytical skills they will requirefor professional practice, Through workwith communities, students are encour-aged to think about issues such as humanrights, underlying democratic values, howthe law should be reformed and howaccess to justice and equality can beimproved. For more information, [email protected] or 01-874 5690.

PPrroovviiddiinngg iinnffoorrmmaattiioonn oonn llaaww ttoo ccoommmmuunniittiieessAA cclliinniiccaall lleeggaall eedduuccaattiioonn pprroojjeecctt ffoorr llaaww ssttuuddeennttss



FLAC held another volunteer train-ing evening in the Royal DublinHotel on O’Connell Street on

Tuesday 4 November 2008. The eveninghad a packed schedule which includedtalks on family law, the use of collabora-tive law,employment law,civil legal aid andimmigration law.

Jennifer O’Brien, a partner with Mason,Hayes & Curran and Keith Walsh,Vice-Chair of the Dublin Solicitors BarAssociation Family Law Committee(also a FLAC volunteer in Ballyboden)started the evening off with a talk onseparation and divorce and the use ofcollaborative law. Jennifer gave a detailedexplanation of the legislation surround-ing separation and divorce which wasaccompanied by an informative slideshow. She covered the constitutionalprovisions for the family; the EuropeanConvention on Human Rights, 2003; theJudicial Separation and Family ReformAct, 1989 (as amended by the FamilyLaw Act, 1995); the Family Law DivorceAct, 1996 and the Civil Partnership Bill,2008. This presentation also gave exam-ples of case law in the circuit court.

Keith Walsh then spoke about the use ofcollaborative law for separation anddivorce proceedings. Keith gave veryclear examples of the questions to ask aFLAC client who may be in the processof getting a separation or divorce inorder to give the best advice.

Eugene Smartt gave a very useful talk onunfair dismissal and redundancy. A long-standing volunteer in the Clondalkin FLAC,Eugene was able to illustrate clearly howto help FLAC callers with these queriesand deal with the queries effectively in ashort timeframe.He continued by examin-ing both the dismissal and redundancy ofan employee separately. He also looked atimportant considerations when decidingwhether a client should bring an unfair dis-missal action based on A) unfair selectionfor redundancy or B) not a genuine redun-dancy situation, and the comparison of theamount received in the redundancy asagainst the amount which would likely beawarded if the case succeeded before theEmployment Appeals Tribunal.

Eugene’s talk was followed by a talk onimmigration law. The talk was given byRuth Ni Fhionnáin, Legal InformationOfficer for the Immigrant Council ofIreland, who kindly stepped in at shortnotice to give an excellent talk on immi-grants’ rights and entitlements. TheImmigrant Council is a non-governmen-tal organisation established in 2002 thatprovides information services to immi-grants. It also carries out lobbying/policy,research and education & training (formore information, see the website atwww.immigrantcouncil.ie).

In her presentation, Ruth, described cat-egories of migrants, visa processes, vari-ous residency stamps and their condi-tions, employment permits available, theending of residency, family reunificationand long-term residence.

Our final speaker of the night was RuthDowling, a barrister and former FLACemployee and a volunteer in our centreon Pearse Street, Dublin 2. Ruth spoke onlegal aid in Ireland, starting with the CivilLegal Aid Act 1995. She went through theareas excluded from the legal aid scheme,the merits test (case must be reasonablylikely to be successful), the means test(financial eligibility) and how to apply.

Ruth described the private practitioner’sscheme, the complaints procedure andforeign legal aid.She then quickly looked atthe criminal legal aid scheme in Ireland.

We would like to thank those whoattended the training as well as the speak-ers for their excellent contributions. Ifanyone would like copies of speaker’s pre-sentations, please contact us at [email protected] or 01-874 5690.

VVoolluunntteeeerr ttrraaiinniinngg ccoovveerrss iimmmmiiggrraattiioonn,,eemmppllooyymmeenntt && ccoollllaabboorraattiivvee llaaww

Above: Speakers at the volunteers training event on 4 November (L-R):Catherine Hickey (FLAC), Jennifer OÕBrien (MHC Solrs), Eugene Smartt (Solr),

Ruth Dowling BL (FLAC), Ruth Ni Fhionnain (ICI) Keith Walsh (Solr)

Below: Attendees at the training event.


FLAC and Northside CommunityLaw Centre made a joint submis-sion on the Social Welfare

(Miscellaneous Provisions) Bill 2008 on20 November 2008. The submissionwas prepared by Ciara Murray, an inde-pendent Public Information Consultant.

The submission dealt with proposedchanges to a number of differentschemes including Mortgage InterestSupplement, Jobseekers Benefit, ChildBenefit and Early Childcare Supplement.

Mortgage Interest Supplement is a pay-ment made as part of the SupplementaryWelfare Allowance scheme, in circum-stances where the claimant is in receipt ofa social welfare or HSE payment and ishaving difficulty in making the interestpayments on his/her mortgage. The Billsought to insert a new definition forMortgage Interest into the legislationwhich would mean that a person wouldbe refused the payment if s/he were seek-ing to repay a loan which was for a pur-pose other than the purchase and/orrepair of their principal residence. FLACand Northside CLC believe that any loanwhich was secured against the home ofthe claimant should be considered and apayment could be awarded if the othercriteria were met. It was suggested in thesubmission that the definition of a “loan”contained in the Consumer Credit Act1995 (as amended) should be insertedinto the legislation.

The Bill aimed to restrict the HSE ininterpreting the circumstances in whichthe supplement might be granted;heretofore the payment could beawarded where the interest wasdeemed “reasonable”. This allowed for adegree of discretion, as the CommunityWelfare Officer could take into accountthe merits of the individual case, but thenew provision seeks to introduce acommon standard by which all caseswould be determined. Anecdotal evi-dence suggests that persons who bor-rowed from sub-prime lenders in partic-ular have been refused the payment inrecent months on the basis that the loanwas not affordable in the first place.

In the current economic context, it wouldbe a more sensible option for the author-ities to consider strengthening the enti-tlement to Mortgage Interest Supplementin the short term in order to avoid sub-stantial debt or even the repossession ofthe claimant’s home. Furthermore, thesubmission referred to a recommenda-tion of the Working Group on the Reviewof the SWA Scheme,where procedureswould be put in place to addresslong0term housing need.

Northside CLC and FLAC are also con-cerned at the proposed changes toJobseekers Benefit which increase thenumber of PRSI contributions requiredto qualify, reduce the length of time aperson can receive the payment and ret-rospectively limit the time in which anexisting applicant can claim the benefit.Regarding changes to the payment of ChildBenefit and Early Childcare Supplement,FLAC and Northside CLC cautiously wel-come proposals to reform child incomesupport provided they address the needsof all children in the State and retain theuniversality principle of Child Benefit.

Both organisations stressed the impor-tance of ensuring that the changes in thesocial welfare legislation are made in lightof the European Convention on HumanRights, as Section 3 of the ECHR Act2003 provides that all “organs of State”must act in a manner compatible with theConvention. In particular, the authoritiesshould give due consideration to Article8 which affords the right to respect forprivate and family life including a person’shome, and Article 1 of the First Protocolwhich allows for protection of property.

Roisin Shortall TD (Lab) and OlwynEnright TD (FG) referred to the submis-sion at committee stage and the Ministerstated her Department would take it intoconsideration for report stage. Howeverthe Bill was enacted into law on 17December 2008 without including any ofthe changes suggested in the submission.


NNeeww ssoocciiaall wweellffaarree llaaww ttaarrggeettssrreecceessssiioonn--hhiitt hhoommeeoowwnneerrss

FFooccuuss IIrreellaanndd::

Housing and homelessness chari-ty, Focus Ireland, recently pub-lished a magazine that under-

pins its campaign seeking a statutory rightto aftercare for young people leavingState care.

The magazine, Bridging the Gap: From careto home, outlines the case for a right toaftercare and features articles by organi-sations working in the area and a range ofindependent experts, including legalexpert on Child Protection GeoffreyShannon, Children’s Ombudsman EmilyLogan, Focus Ireland Life President Sr.Stanislaus Kennedy, and Focus IrelandDirector of Services Orla Barry.

Recent figures show that there are over5000 young people in state care.Approximately 90% of these are in fostercare and the remainder live in residentialcentres (ref. Office of the Minister forChildren and Youth Affairs). As it stands,once these young people turn 18 years ofage, the State no longer has any legal obli-gation to provide aftercare services orsupport to help them make the transitionto adult and independent living.

Most young people experience a periodof transition from their teenage years toadulthood. They are supported by familyas they take up third level education, asthey find work or as they move awayfrom home for the first time. However,young people who have grown up in Statecare are not automatically entitled to thissupport on turning 18 and can end upbeing out on their own with no one toturn to for advice or reassurance.

This is why Focus Ireland is campaigningfor a statutory right to aftercare – toensure that all young people who needsupport are provided with it and toensure that no young person is left to fallthrough the cracks in the system. Section45 of the Childcare Act 1991 providesthat, “Where a child leaves the care of ahealth board, the board may, in accor-dance with subsection (2), assist him for

Read the submission in full :www.flac.ie/publications/policyunder ‘Social Welfare Law’

FLAC is grateful to Zoe Hughesof Focus Ireland for this article



so long as the board is satisfied as to hisneed for assistance and, subject to para-graph (b),he has not attained the age of 21years.” In effect, this allows the HealthService Executive (HSE) to provide after-care support but does not oblige them to.Any aftercare that is provided is depend-ent upon the will of the HSE and it doesnot guarantee a right to aftercare supportfor those young people who need it.

For many young people, leaving care is adaunting and terrifying time and being leftwithout the supports that most peopletake for granted can have devastating con-sequences. Many young people that FocusIreland works with come from a carebackground and in 2000 Focus Irelandpublished a research report, Left Out ontheir Own, which looked at the fate ofyoung people leaving State care.Damningly, this study found that aroundtwo-thirds of young people who left Statecare ended up experiencing homelessnesswithin two years. This figure shows that itis imperative that aftercare become a legalright to prevent young people frombecoming homeless and becominginvolved in associated problems such asaddiction and crime.

Drawing from his own experiences ofleaving State care, soccer legend PaulMcGrath has endorsed and helped launchFocus Ireland’s campaign for a statutory

right to aftercare. The magazine includesan article from Paul, who speaks candidlyabout his own fears and how he struggledto cope when he left care.

Focus Ireland provides aftercare servicesin Dublin in collaboration with theGovernment and the HSE. These servicesprovide the structured support that youngpeople need to help them make a success-ful transition to independent, adult life.Supported accommodation is provided fora year. Staff work with the young people,helping them to access training or educa-tion programmes and providing the practi-cal and emotional support needed to helpbuild their confidence and independence.

When the young people are ready tomove on from Focus Ireland’s aftercareprogramme, they are assisted in settlinginto the local community and staff contin-ue working with them until they have fullysettled. However, there is already a wait-ing list for the aftercare services and manyyoung people continue to be unsupportedwhen they leave State care. A right toaftercare would mean that all young peo-ple would have equal access to aftercareservices if needed.

Not only is there a strong moral argumentfor aftercare, but it stands to reason that itwould make financial sense for theGovernment to invest in aftercare and so

help prevent young people becomingdrawn into homeless services, addictionservices or even the criminal justice systemin the future. Investing in aftercare servicesnow would lead to better outcomes forboth the young people and the State.

Focus Ireland will continue to campaignfor a statutory right to aftercare in 2009and will lobby Oireachtas members tohelp build momentum and support for aright to aftercare. To order a copy ofBridging the Gap, contact Focus Ireland’sInformation Officer on 01-881 5967.

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Jacinta’s Story

”When I left care I hadnowhere to turn to for sup-port and found myself stay-ing at friends places andsleeping on sofas. I wasn’thappy, I had no support andwas moving from place toplace with no direction.

When I moved in to FocusIreland’s aftercare accom-modation it was so differ-ent. I had my own room andcould get great supportfrom the staff here andcould turn to them foradvice when I needed it. Iwas lucky as there weren’tmany places available.

I really struggled to keep onmy feet when I left care butthe staff here changed allthat. They were so good tome and showed me how tohave more confidence inmyself. I think there shouldbe more support for peoplelike me leaving care and itshould be everyone’s rightto receive this type of careshould they need it.”

The full text of this story canbe read in Focus Ireland’s mag-azine, Bridging the Gap: Fromcare to home. This magazinecan be ordered by contactingFocus Ireland on 01 881 5967.

Pictured at the launch of Bridging the Gap: Fromcare to home are soccer leg-end Paul McGrath and FocusIreland CEO, JoyceLoughnan

Photo:Mac Innes Photography


FLAC notes with satisfaction theFinancial Regulator’s proposal toput rules on repossession of mort-

gaged family homes on a statutory basis.We believe this long overdue measureshould be implemented without delay.However, haste should not negate theneed to adopt the correct statutoryframework. In particular, FLAC seeksmechanisms by which those seeking toprotect consumer rights can be heard andtheir concerns taken on board before themeasures are adopted.

The notification by the acting head of theRegulator’s office came at a hearing of theOireachtas Economic Affairs RegulatoryCommittee on Tuesday 13 January 2009.Mary O’Dea announced that the Regulatorintended to put its existing statutory codeand the voluntary code of the Irish BankersFederation on a statutory basis and to applythe code to all those who lend, including so-called sub-prime lenders.

By combining the codes and putting themon a mandatory statutory basis, there islikely to be an improvement in the meth-ods of handling mortgage arrears whichwill give breathing space to some facingrepossession. However, as they stand, bothcodes fail to adequately protect the needsof consumers. In particular, they fail to

address the inequity that the lender alwayswins the property at the end of the day, nomatter how reckless the loan. FLAC hasdoubts too about the investigation mecha-nisms and the adequacy of sanctions.

The code thus far reflects the view oflenders and the Regulator. But it lacks con-sumer input and no mechanism has beensuggested for consumers or consumers’rights bodies to discuss the proposedrevised code. Nor is it clear that theRegulator proposes to discuss the codewith the Oireachtas. In FLAC’s view, theperspective of consumer rights and publicrepresentatives is crucial and must be con-sidered before the code is adopted.

FLAC has written to the FinancialRegulator raising some consumer protec-tions issues.Among these are the questionof sanctions and machinery to oversee thecode’s application and investigate allegedbreaches.There is currently no analysis –or, at least, none publicly available – of theefficacy of current sanctions. While wel-coming a stronger code, FLAC has reser-vations about the capacity of an internaltribunal (that appears largely untested) toinvestigate a financial transaction which,for many consumers, is the biggest theywill ever make. Any investigation machin-ery must be well constructed, respect fair

hearing standards and consumer rights,and be properly resourced. Sanctions toomust be effective. Those tempted to lendirresponsibly must know that there aregenuine consequences if they fail toobserve the code.

Even if a proper system is put in place, it willnot solve the dilemma of repossessionswhere, no matter how reckless or irre-sponsible the lending, only one party – theborrower – is ever dispossessed. If a lendergoes to court seeking a repossession order,then, in the absence of any technicaldefence, a court’s hands are tied: eitheradjourn the matter or grant a Reposs-ession Order. Courts can only adjust theproperty of the imprudent borrower; theyhave no power to hold the irresponsiblelender at least equally accountable.This isparticularly difficult as in most cases, thepower, knowledge and expertise of thelender are vastly superior to that of theborrower. Rectifying this anomaly by per-mitting the court to use its discretion onreckless loans is not a matter for a code,but rather for legislation. FLAC has askedthe government to use the opportunity inre-capitalising the banks to include provi-sions which would right the inequality ofarms that arises in such situations.

The full text of FLAC’s letter is on www.flac.ie.

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The Irish Human RightsCommission and the HumanRights Committee of the LawSociety recently ran a jointposter competition for schoolchildren to mark the 60thanniversary of the UniversalDeclaration of Human Rights.Pictured left to right are RebeccaKane, Monika Czuba & ShannonWard, 1st year students atPresentation Secondary SchoolGalway with their posters at theopening of the exhibition,Human Rights - Framed ByYoung People, at the LawSociety, Blackhall Place.

Photo: Moya Nolan

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