document

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 3 l J U L Y - S E P T E M B E R 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 third issue of 2009 covers the2000s, a time of tremendous growthand change for the organisation. Wehope you enjoy this series and wel-come 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 74 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. 3

F L A C N E W S l J U L Y - S E P T E M B E R 2 0 0 922

iinn tthhiiss eeddiittiioonn......

EU social security network discusses HRC 2

NIHRC launches homelessness report 2

Legal aid needs reform for the better, not the worse 3

Debt law reform after the horse hasbolted must be more effective 4

Short-term loans, long-term hardship 5

FLAC Fellowships 6-7

Rule of Law project 7

Films show life in Direct Provision 7

Irish legal project fostering the rule of law in Ethiopia 8-9

40th anniversary insert:No.3: FLAC from 2000 i-iv

FLAC casework makes progress inclarifying law on habitual residence 10

New legal resource for homelesspeople 11

Public interest litigation - Northern style 11

Focus on FLAC: Don Crewe 12

FLAC @ Clondalkin 13

The Poor Can’t Pay campaign 14

EU appoints new racism monitor 14

ERA complaint to EU 14

Public consultation on responsibleborrowing & lending in the EU 15

Equality and rights at the heart of recovery: ERA conference 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, SaoirseBrady, Kristine Duncan, Michael Farrell,Brian Gallagher, Catherine Hickey,Michael Irvine, Paul Joyce, Kelly Mackey,Fintan Monaghan, Helen Nolan, MichaelO’Dwyer, Edel Quinn,Yvonne Woods.

Photos: Patrick Bolger, Collins PA,Courtpix, Steven de Paoire, FLAC, DerekSpeirs

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

EEUU ssoocciiaall sseeccuurriittyy nneettwwoorrkkddiissccuusssseess HHRRCC

NNIIHHRRCC llaauunncchheesshhoommeelleessssnneessss rreeppoorrtt

The trESS (Training and Reportingon European Social Security)network is a European

Commission initiative administered byGhent University in collaboration with 27independent social security experts fromeach of the Member States. The currentindependent expert for Ireland is MelCousins.

The objectives of the network are to:8 Increase knowledge amongst stake-

holders in relation to the coordina-tion of social security systems inMember States.

8 Form strong networks at thenational level.

8 Monitor problems with the imple-mentation of social security regula-tions.

8 Carry out legal analysis in relationto social security issues.

Each year the independent expert sub-mits a report on developments at thenational level in relation to EU regulations1408/71 and 574/72 which are concernedwith the harmonisation of social securitysystems across the EU. The countryreports are then compiled into a singleEuropean report. In the 2008 report onIreland, the Habitual Residence Condition(HRC) was highlighted as an area of con-cern.

It was in this context that Saoirse Brady,FLAC’s Policy and Campaigns Officer wasinvited to make a presentation on theoperation of the HRC to the trESS semi-nar. (This presentation is available todownload from the trESS website:

http://www.tress-network.org/TRESS-NEW/PUBLIC/SEMINARS/PRESENTA-TIONS/IE_2009_2_en.ppt)

The seminar also heard from ClaesTenggren of the European Commissionwho discussed recent developments andthe forthcoming EU Regulation 883/2004which is due to come into force in March2010. This regulation will allow greaterharmonisation of social security regimesthroughout the EU. It will also simplifyand enhance co-operation and informa-tion sharing between national institu-tions. trESS project manager MichaelCoucheir discussed the objectives andoperation of the trESS project in furtherdetail while legal expert Jean-PhilippeLhernould gave an overview of recentEuropean Court of Justice decisionswhich may be useful in interpreting EUlaw in the field of social security.

Attendees at this year’s seminar includedrepresentatives from the EuropeanCommission, officials from theDepartment of Social and Family Affairsand Health Service Executive, AppealsOfficers from the Social Welfare AppealsOffice, Social Security Commissionersfrom Northern Ireland and advocatesfrom Citizens Information Centres aswell as individuals from other interestedindividuals working in the area.

The trESS network may prove to be avaluable resource for people working inthe sphere of social welfare or Europeansocial security law in Ireland and the web-site can be accessed at http://www.tress-network.org/

In September the Northern IrelandHuman Rights Commission launched areport entitled No Home from Home -

Homelessness for People with No or LimitedAccess to Public Funds. The report exam-ines the increasing problem of homeless-ness in Northern Ireland for immigrants in

a variety of different circumstances whocannot access housing nor any social wel-fare payments due to their immigrationstatus. Practitioners south of the bordermay also find it useful.

Download the report at http://nihrc.org/


F L A C N E W S l J U L Y - S E P T E M B E R 2 0 0 9 33

LLeeggaall aaiidd::IItt’’ss nnoott jjuusstt aabboouutt tthhee mmoonneeyy

In August 2009, in advance of apromised Bill on criminal legal aid,the Minister for Justice, Equality

and Law Reform reportedly said thatthe scheme needed the addition of ameans test.

Newspapers described how theMinister has concerns around anom-alies and difficulties leading to abuse ofthe system which needed to beremoved. At the time, FLAC issued itsresponse, noting that in fact criminallegal aid already has a means test – apractical one, where the circumstancesof the applicant for criminal legal aidare actually examined.

While recognising that an accountablegovernment must guard against abusesin the system, FLAC warned againstimposing the kind of restrictions set bythe current civil legal aid scheme, whichresult in a substantial bureaucracy, andunfairness to many applicants where aperson who is assessed at a single eurounder a “disposable income” of

€18,000 is eligible for legal aid – albeitwith a hefty contribution to pay – but aperson assessed at a single euro overthat limit does not get any help, no mat-ter how desperately needed.

According to the Department ofJustice's Annual Report for 2008, thecost of the Criminal Legal Aid Scheme

amounted to €55.3 million in 2008, an

increase of nearly €10 million on 2007.However, this rise was simply the resultof a growth in the number of criminalprosecutions of people who neededlegal aid. The Courts granted 19 per-cent more legal aid certificates forcriminal matters in 2008 than in 2007.The Department had actually set a payfreeze for legal practitioners operatingunder the Scheme in 2008.

Concerns about the cost of legal aidarise in other jurisdictions too.The UKgovernment is seeking cuts to thebudget of the Legal ServicesCommission, the body which oversees

the entire state-funded legal aid systemthere. Nonetheless, the UK Legal AidMinister Lord Bach has said: "The UKhas one of the best-funded legal aid sys-tems in the world and it is a vital serv-ice for many people, particularly duringthe current economic downturn. Moreand more homeowners, employees andthose facing financial hardship, are vul-nerable to civil law problems at thistime. We need to do all we can toensure that legal aid is prioritised effec-tively so that more people are able toaccess it to and resolve their legalproblems.”

That service does not reach everyonewho needs it. According to a CitizensAdvice Bureau report issued to markthe 60th year of state-funded legal aidin the UK:

Despite legal aid’s achievementssociety and its laws have grown farmore complex in recent years andtoo many people cannot accesslegal help when they really need it.Of the third of the people whoexperience legal problems in anyone year – only 38 percent suc-ceed in getting help. Eight per centof people in England and Waleshave tried to get advice for a civiljustice problem and failed. Thisequates to 2.3 million people.Thissuggests there are still critical bar-riers to accessing civil legal servic-es – a fact that presents an ongoingchallenge for the Community LegalService.

It is not just legal aid practitioners andadvisors in the UK who are concernedabout the continuing gaps in civil legalaid in the UK. In a report issued by theHouse of Commons Justice Committeein July 2009 on proposed changes tothe family law civil legal aid system, theCommittee commented:

Much of the debate about familylegal aid reform inevitably revolvesaround fees and payments, whichgives the impression that the issuesare solely about how much to pay

lawyers. It is all too easy to losesight of the overall purpose of fam-ily legal aid which is the provisionof a service to families, and partic-ularly to children, to enable themto gain access to justice and to helpthem navigate effectively throughan increasingly complex system.The families, and particularly thechildren, involved are often con-fused, emotionally damaged andvulnerable.”

The debate in the UK and the concernsexpressed by lawyers, judges, citizensinformation bureau, politicians, commu-nity law centres and many others, aboutattempts to cut back an already inade-quate service that may not give peoplethe access to legal advice they need forcomplex legal problems, has a reso-nance in Ireland too.

Already, the state-funded civil legal aidservice here is problematic. In variousLegal Aid Board Law Centres, clients inreal and immediate need of legal adviceand assistance may have to wait for upto 6 months for a first appointment.And now it appears that the govern-ment proposes to introduce a CriminalJustice (Legal Aid) Bill in Autumn 2009which will impose further restrictionson criminal legal aid.

Whatever restrictions to existing sys-tems or changes are contemplated inIreland, it is important that all the deci-sion-makers remember why legal aid isstate-funded at all. That is because thecrucial right of access to justice cannotbe achieved without it.

While legal aid alone will not guaranteethat people will be able to understandthe law as it applies to them, nor thatthey will be able to apply it to theirown circumstances, it does nonethelessassist very poor people in dealing withthe complex and difficult world of legalrule and regulation.As such, it is funda-mental in a society that respects therule of law. It must be guarded.

During the summer months, thecurrent economic and bankingcrisis continued to create diffi-

culties and misery for many people.There is no doubt that there were aminority of borrowers who borrowedmore than – in hindsight – they shouldsafely have done, but equally there is nodoubt that many lenders sold creditrecklessly, or at least without properlyassessing whether people could repay it.Many who borrowed from one or morelenders on one or more terms of repay-ment truly believed they were con-tributing to Ireland’s economic boom.They believed this when they mortgagedtheir houses to finance their businessesor took out numerous loans. They alsobelieved it when they developed, overyears, the habit of borrowing and repay-ing to expand their capacity to live andto work. Irish social habits now rou-tinely include borrowing and lending butthe regulation of those who lent themoney was extremely light.

Now events are moving with frighteningspeed, leaving many people exposed andvulnerable. People who could affordrepayments while they were workingare in difficulty when they lose theirjobs. For many, there is no realistic wayof selling a home to pay off a mortgageoriginally obtained to house a family.Even if a house can be sold, the chancesare that it will not realise enough to payoff what is owed on it. But yet, at gov-ernment level, the emphasis remains onsaving the financial institutions and pro-tecting our investment reputationworldwide. As this edition of FLACNews goes to print in September 2009,the NAMA legislation is being intro-duced in the Oireachtas and will bedebated. But where is the parallel legis-lation to protect vulnerable borrowers?It does not exist.

It is not that legislators are not aware ofthe plight of borrowers.The Minister forSocial & Family Affairs, Ms. Mary HanafinTD recognised the value of the MoneyAdvice and Budgeting Service (MABS)

when she announced the appointmentof five full-time and 14 part-time newmoney advisors in August 2009. FLACwelcomed this increase in resources toMABS, an organisation which is on thefrontline in advice and assistance tothose with financial difficulties. Wepointed out however that money advicealone would not solve people’s prob-lems, although such advice, if delivered ina timely and sensible way, can helpaddress many aspects of over-indebted-ness. Nonetheless, this will not deliverthe kind of comprehensive protectionthat is needed. That requires a centralgovernment focus on the crisis of peo-ple in debt, and co-ordination and co-operation between government depart-ments.A good example of the absence of a co-ordinated strategy and apparent cross-purposes arose in the enactmentrecently of two pieces of legislationwhich have the potential to serve entire-ly contradictory aims.

In a late amendment to a major work ofland law reform in June 2009, theMinister for Justice Equality and LawReform, Mr. Dermot Ahern TD, pro-posed the inclusion of a provision in theLand and Conveyancing Law Reform Act2009 which will require lenders, in hous-ing loans taken out after the Act is com-menced, to issue any proceedings forrepossession in the Circuit Court.Heretofore, lenders had a choice of theCircuit or the High Court. High Courtproceedings tended to be more difficultto access and understand, and moreexpensive for borrowers who ended uppaying all of the costs of the case. In theDáil debate, the Minister said that “(t)hisprovision will make life somewhat easierfor those people who are subject torepossessions” and would “ensure therewas more understanding” for them.While this clause is worthless for allthose who already have mortgages andwho therefore can only avail of the veryweak protection in a FinancialRegulator’s code dealing with mortgagearrears, it is nonetheless a useful reform

of the law for future borrowers.

At the same time as this reform wassuggested, the Minister was also sug-gesting changes to the rules of theCircuit Court.This was done by way ofa private direction to the Circuit CourtRules Committee, and was not adver-tised or discussed in the Oireachtas.Weare now told that the Minister’s aim wasto enhance the change introduced inthe Act. However, on FLAC’s analysis,the new rules, brought into effect on 8July 2009 by Statutory InstrumentNo.264 of 2009, do the opposite towhat they were intended to do. Whilethey do produce a simpler and morestreamlined procedure in the CircuitCourt, the lender is more likely to ben-efit from this than the borrower. InFLAC’s analysis, the revised rules willmake court proceedings in the CircuitCourt more expensive than they were,will speed up the capacity of the lenderto recover a property and will reducethe negotiation opportunities for bor-rowers. They may even result in anorder for repossession of a person’shome without the case ever comingbefore a judge. FLAC has asked theMinister to rescind the statutory instru-ment to allow some time for a re-think,and a revision which would actuallyincrease borrower protection. At thetime of writing, a reply is awaited.

Between January and June this year,there has been a four-fold increase indebt-related calls to FLAC's telephoneinformation and referral line and a dou-bling of debt-related visits to our coun-trywide legal advice centres over thesame period in 2008. This increasereflects what most people know with-out statistics – that many feel vulnerableand insecure and subject to the whim oflenders, who might be slightly boundedby protocols, but are certainly not gov-erned by them.Thus there is a pressingneed for government to show that theyare at least as aware of the rights andproblems of borrowers as they are ofthe banks.



OOppiinniioonn:: TThhee ccaassee ffoorr ccoooorrddiinnaatteedd aaccttiioonn ttoopprrootteecctt bboorrrroowweerrss


55F L A C N E W S l J U L Y - S E P T E M B E R 2 0 0 9

For almost 100 years, paydaylending was deemed by US legis-lature to be usurious and pro-

hibited by State laws across the UnitedStates. Since 1996, statutory limitationshave been repealed or relaxed to allowfor the provision of quick credit toconsumers.

A ‘payday loan’ is a small-value, short-term, unsecured loan made to a bor-rower who guarantees repayment byproviding a post-dated cheque or pre-authorised debit. There are now anestimated 22,000 outlets nationwidegenerating an estimated $27 billion inloan volume. Currently, 35 states per-mit high-cost payday lending while 15states and the District of Columbiaprohibit extremely high-cost paydaylending.

The industry has been criticised forexploiting financial hardship for profit.And there is certainly merit to theargument: Low-income individuals aretargetted by payday lenders as con-sumers of their high-interest product.The typical payday loan customercomes from a low-income communityand has little or nothing by way ofassets – rendering them ineligible for asecure, lower-interest form of credit.

Critically, an average of 80% of borrow-ers take out more than one loan peryear and of that cohort, 87% take out asubsequent loan within the very nextpay period, or - in other words - at theborrower’s earliest opportunity. Arecent study by the Center forResponsible Lending (Phantom Demand:Short-term due date generates need forrepeat payday loans, accounting for 76%of total volume, July 2009) found thatmost payday loan borrowers have to

take out subsequent loans becauserepayment of the original loan left themwithout adequate means to meet theirneeds.The borrower becomes mired ina cycle of debt. When one considersthat the payday loan product often car-ries an average of 400% APR, it is appar-ent that the success of the industry’sbusiness model relies on the conver-sion of occasional borrowers intochronic and dependent borrowers.

The combination of short-term andhigh-cost has resulted in an unhealthytrend of perpetual indebtedness whichhas been identified across the UnitedStates since the liberalisation of paydaylending laws. In response, many stateshave either capped interest rates onpayday loan products or reintroducedstate-wide bans.

The most recent proscription wasintroduced in the District of Columbiain January 2009. D.C. effectively prohib-ited the payday industry from operatingwithin its jurisdiction by capping inter-est rates at 24% – the same maximumrate as banks and credit unions – and,accordingly, payday operators in D.C.ceased trading overnight.

However, the payday lending industryfinds ways of circumventing prohibitiveor restrictive laws by either relocatingto more favourable states or onto theinternet.And while the industry contin-ues to find new ways to survive, thedemand for the short-term, high-inter-est loan product has only gained morepopularity. Indeed, the industry’s adver-tising practices are almost as aggressiveas its collection practices.

In terms of solutions, the majority ofmeasures introduced to draw cus-

tomers away from predatory lendinginstitutions are coming from creditunions. Credit unions in various com-munities across the United States havedevised small-dollar loan products withless debilitating levels of interest fortheir customers. However, these alter-natives are only available in a limitednumber of districts and to existing cus-tomers. Perhaps what is needed is forlarger credit institutions and banks toprovide some of the innovative solu-tions developed by such smaller institu-tions in order to create greater accessto payday loan alternatives.

However, the lending institution mayitself be inimical to vulnerable borrow-ers, as many of these are “unbanked”because they do not meet the mini-mum registration criteria for main-stream credit and banking products.

The experiences of the 15 prohibitingstates and D.C. have shown that policy-makers and legislators are able to pro-tect individuals from usurious interestrates by capping APR. The Center forResponsible Lending recommends a36% APR cap (federal regulationalready mandates that loans to militarypersonnel be capped at 36%) as itwould curtail the practice of lenderstrapping borrowers with ballooningrepayment rates.

This would also encourage the prolifer-ation of short-term loan products witha more manageable repayment periodand break the cycle of supply creatingdemand, which has created a culture ofindebtedness among financially vulnera-ble communities across the UnitedStates.

SShhoorrtt--tteerrmm LLooaannss,, LLoonngg--tteerrmm HHaarrddsshhiipp::TThhee UUSS EExxppeerriieennccee ooff PPaayyddaayy LLeennddiinngg

Kelly Mackey was the recipient of FLAC's Thomas Addis Emmet Fellowship in 2008. She spent nine weeksstudying at the University of Washington, Seattle and as a legal intern with the Washington AppleseedCentre for Public Interest Law in Seattle. There she concentrated on researching the legislative responseof other states to predatory lending, in particular so-called 'payday lending', and on identifying alternative credit options.



Over the summer I interned withFLAC as part of the WilliamSampson Fellowship in

Comparative Public Interest Law. TheFellowship is arranged through my lawschool in the United States, the Universityof Washington in Seattle. Interning atFLAC allowed me to gain perspective onmy own legal system and as well as seehow public interest lawyers in Irelandaddress the complex legal issues that facethe State today.

The first project I worked on for FLACwas the follow-up report to the ThirdPeriodic Report of Ireland under theInternational Covenant on Civil andPolitical Rights. I researched and sum-marised the State's progress on theEnforcement of Court Orders Act as wellas the lack of progress on the rights oftransgendered persons and same-sexcouples. This project taught me a greatdeal about the structure of the UNHuman Rights Committee as well asIreland's policies surrounding a number ofcomplicated and sensitive issues.Working on the ICCPR report also high-lighted for me a number of injustices athome in the US, where the rights of cer-tain populations are not even as advancedas those the Human Rights Committeedeemed inadequate in Ireland.

I was also fortunate to be at FLAC for thelaunch of its Debt report and subse-quently the passing of the newEnforcement of Court Orders Bill. It was

not only educational but inspiring to seethe public support and government reac-tion to the report, which brought light tothe grievous problems caused by theEnforcement of Court Orders Act 1940that allowed a person to be imprisonedfor non-payment of debt even in his/herabsence from court. I feel quite fortunateto have been even a small part of thelaunch for the report, To No One's Credit,by Paul Joyce. Seeing the Enforcement ofCourt Orders Act debated and eventual-ly passed in the House of the Oireachtasalso gave me a new interest in politics thatmy American education up to this pointhad not managed to provoke.

In addition to gaining perspective and arejuvenated interest in the politicalprocess, I hoped to be able to contributein some way to the tremendously impor-tant work that FLAC does in bringing jus-tice to those who otherwise do not haveaccess to it. My final project this summerwas to begin FLAC's contribution to the

While in Seattle, theAppleseed Foundationwas in the middle of a

move, so I ended up working onAppleseed projects taken on by the probono department of a large corporatefirm, Foster Pepper. I was involved intwo projects. The first was a reportexamining access to transportation forlow-income individuals in Washington,particularly in terms of access toemployment. My research covered theway insurance rates are decided, thepower of the Insurance Commissionerto reform insurance laws, and alterna-tives to car ownership (such as car-shar-ing, car-pooling and individual employersproviding employees with access tocars).

The second project examined the mer-its of using alternative data (for example,utility bill payments) to improve/buildcredit scores for people with 'thin cred-it'. I was in charge of the preliminaryresearch into current use of alternativedata and other possible alternatives

TThhoommaass AAddddiiss EEmmmmeett && WWiilllliiaamm SSaammppssoonn

Each year FLAC gives one Irish student the opportunity to take part in a programmerun in conjunction with the University of Washington, Seattle, as part of the ThomasAddis Emmet Fellowship. During a two-month stay in the United States, the can-didate has the chance to work in the field of international public interest law and earninvaluable first-hand experience in human rights and public interest cases.At the sametime, a student from the University of Washington comes to Ireland to work with FLACover the summer as part of the William Sampson Fellowship.

The Thomas Addis Emmet Fellow for 2009 is Helen Nolan, a 21 year-old student oflaw in Trinity College Dublin. Here she describes her time in Seattle, while the WilliamSampson Fellow, Kristine Duncan, outlines below her experience with FLAC:

LLeefftt:: TThhoommaass AAddddiissEEmmmmeett FFeellllooww 22000099,,

HHeelleenn NNoollaann,, ppiicc--ttuurreedd iinn SSeeaattttllee aatttthhee SSaaffeeccoo bbaasseebbaallllffiieelldd ffoorr aa MMaarriinneerrss

ggaammee..

BBeellooww lleefftt:: WWiilllliiaammSSaammppssoonn FFeellllooww22000099,, KKrriissttiinnee

DDuunnccaann,, ppiiccttuurreedd iinntthhee WWeesstt ooff IIrreellaanndd



The Bar Council of Ireland andthe Law Society of Ireland cametogether in early 2007 to pro-

vide a programme to enhance the Ruleof Law in the developing world.Government policy enumerated in theWhite Paper on Irish Aid in September2006 set out that “improving gover-nance, reducing corruption and buildingdemocracy must be an integral part ofIrish Aid’s work.” The Rule of Law is atthe nexus of these objectives.

The Bar Council and the Law Societyhave attempted to ensure that any per-son in either body may play a part in theprogramme. Open meetings are heldquarterly at which any member of eitherprofession may speak on any topic relat-ed to the enhancement of the Rule ofLaw in the developing world.Attendance at these meetings, heldalternately on Bar Council premises andat the Law Society, usually comprisesabout 50 to 60 lawyers.In 2009, it was resolved by both bodiesto incorporate a company limited byguarantee with charitable status so thata structure could be established to for-mally undertake the tasks/projectsassigned to it. The company is now inthe process of incorporation and will beestablished shortly. It will be jointlyfunded by the Bar Council and LawSociety in its initial stages. Irish Aid haveprovided funding for all of the pro-

grammes or projects undertaken todate. These include the following:

a) Training for lawyers from historicallydisadvantaged backgrounds in com-mercial law in South Africa (projectin existence since 2002).

b)Training for lawyers in human rightsand criminal law in Ethiopia (projectundertaken in 2008 – see BrianGallagher's article on page 8).

c)Assistance in the redrafting of theRules of Procedure for the courts inBosnia/Herzegovina (project under-taken in 2008).

d)Training of Judicial Assistants inZambia (project undertaken in2009).

Other programmes have been undertak-en to assist the judiciary or lawyers inTanzania, Kosovo and Sri Lanka. Thesehave not been funded by Irish Aid. Aprogramme on Access to Justice is at apreparatory stage for Malawi and aneducational project is also proposed inKosovo.

It is envisaged that work will grow andhopefully the establishment of theCompany will enable a greater aware-ness of the efforts of the legal profes-sions in Ireland in this field. Practitionersare most welcome to come along to thequarterly meetings - further informationcan be obtained from the Law Society orBar Council.

In May a number of FLAC staffattended the screening of Living inDirect Provision – 9 Stories in the Irish

Film Institute. The digital stories (shortfilms) were the result of a media work-shop run by FOMACS – the Forum onMigration and Communication based inDublin Institute of Technology (DIT) – inconjunction with Integrating Ireland andthe Refugee Information Service.

The nine asylum seekers and refugeesparticipated in a six-month process dur-ing which they came up with the con-

cept for their individual stories andrecorded it using multi-media technolo-gies. The short films cover issues such asliving in direct provision, family membersliving in other countries, racism andpotential sexual exploitation of asylumseeking women.

It is hoped the stories will be shown toa wider audience across the country toraise awareness of everyday challengesfaced by asylum seekers in Ireland.

View them at www.fomacs.ie

RRuullee ooff LLaaww iinn DDeevveellooppiinngg WWoorrlldd

FFiillmmss sshhooww lliiffee iinn DDiirreecctt PPrroovviissiioonn

Social Welfare Casebase, which was cre-ated by Northside Community LawCentre in order to help those currentlyinvolved in social welfare appeals gain anunderstanding of the rationale behindappeal officers' previous decisions. Iaimed to use my knowledge of similarcasebases in the United States to makethe decision summaries of cases FLAChas brought before the Social WelfareAppeals Office as helpful as they can beto those who are involved in taking simi-lar cases to appeal.

I spent the last year immersed in theintricacies of the American legal system,and while this is necessary to become alawyer in the States, it makes it easy toforget that the world's legal systems giverise to their own problems and solutions.Interning at FLAC not only reminded meof this, but also allowed me to see first-hand how some of these complex prob-lems can be solved with creativity, inno-vation, and people who truly care.

(such as micro-lending).

In terms of academic work, I missed thefirst term of the course at theUniversity of Washington, but was ableto attend a few of the online classes inthe second term.We looked at a varietyof practical topics (such as confidential-ity and conflict policies in a firm, the useof eyewitness testimony and racial pro-filing) as well as issues specific to publicinterest law (for example, mandatorypro bono service and compensation forlegal services attorneys). I was able tohear about other student experiencesclerking for judges and working forstate departments.

I really enjoyed the experience.Thoughmy direct contact with Appleseed itselfwas limited, I was involved in exactly thekind of work I hoped to be. I wasresearching areas I knew nothing about,so that was challenging, but it was inter-esting to look at issues that wouldn'tnecessarily be important in Ireland, yethave a huge effect in the US.

FFeelllloowwsshhiippssMichael Irvine is a Consultant with Matheson Ormsby Prentice solicitors with exten-sive experience in international consultancy. He was President of the Law Society ofIreland 2005-2006.

88 F L A C N E W S l J U L Y - S E P T E M B E R 2 0 0 9

Iwas in a group which travelled toAddis Ababa in November 2008 atthe request of the Ethiopian Ministry

of Justice to provide training to judges,prosecutors and ministry staff. The tripwas part of the wider 'Rule of Law' proj-ect of the Law Society and Bar Council ofIreland. It comprised five days of seminarsintended to promote an awareness andunderstanding of the fundamentals of theadministration of justice and a respectfor human rights and the rule of law.Nearly 90 legal professionals and stafffrom all over Ethiopia participated ineach session. Seminar topics includedinternational human rights law, theimportance of an independent judiciary,access to justice, criminal law basics,alternative dispute resolution and regula-tion of the legal profession.

Ethiopia has a very advanced constitu-tion (available in English) and civil/crim-inal legal system. Parallel to this it alsohas systems of customary and religiouscourts, particularly in rural areas. Thestatutory legal system takes precedenceover the customary/religious ones. Formany Ethiopians, however, access to thestatutory system is difficult or impossi-ble, given that in a country of about 70million people, there are only approxi-mately 1500 lawyers.

From discussions with our Ethiopiancolleagues, it rapidly became clear tome that the basic problems with accessto justice in Ethiopia today bear manysimilarities to those experienced inIreland when FLAC was set up 40 yearsago, although they are much moresevere than in the Ireland of the 1960s.Ethiopia does not provide a state sys-tem of free legal aid or advice in eithercriminal or civil matters.There are seri-ous resource problems; judges andprosecutors are poorly paid and manyhave second jobs. Legislation is not dis-tributed in a timely fashion; issues of theofficial Gazette containing new federal

laws are not sent out to either courtsor other legal officers. Legal librariesare practically non-existent. Membersof the public are generally almost total-ly ignorant of the country's laws and/orlegal system.

Obviously the most likely reason for thesedeficiencies is lack of funding. Participantswere acutely aware of the shortcomingsof the country's legal system and werevery willing to make improvements (I wasreminded that in Ireland in the 1960s,while we did have access to statutes andstatutory instruments, we had very fewIrish legal textbooks).

The training was the context for mymeeting with the Executive Director ofthe Ethiopian Women LawyersAssociation (EWLA), Ms MahderePaulos. I was very much reminded ofFLAC when I met the EWLA. Itdescribes itself as a "non-profit, non-par-tisan organisation with an objective ofenhancing the political, economic, legaland social rights of women". To achievethese aims, EWLA "has set its pro-grammes through research and lawreform advocacy, public education andlegal services". The legal services theyprovide consist of free advice and coun-selling to women, mediation for disput-

ing spouses and provision of free legalaid for court appearances. Since itsestablishment in 1995, approximately73,000 clients have benefitted fromEWLA legal support, provided from itshead office in Addis Ababa and itsbranches in the nine districts of the city,its six regional offices and its 54 localcommittees. Because of the nationalshortage of lawyers, much of the work isdone by paralegals.

Mahdere told us that EWLA's workincludes examining old laws which arecontrary to the current constitution,providing paralegal training, paying liti-gant travel expenses and providing atoll-free telephone advice service.Theyhave devised a 'conciliation form' whichis sent to the husband and mediationensues. Family law problems can be dif-ficult to solve by mediation, as thewomen come for help only as a lastresort. However, because of the trustpeople have come to place in EWLA,about 80 percent of problems areapparently resolved. The EWLA takesvery different stance on family law fromthe traditional process, where commu-nity elders tell women they must obeytheir husband. EWLA paralegals informthe women of their legal rights and alsodeem it part of their brief to recom-

IIrriisshh lleeggaall pprroojjeecctt ffoosstteerriinngg


Brian Gallagher is a former Chairperson of FLAC and is now managing partner in Gallagher Shatter, witha wide range of legal practice including constitutional and administrative law, civil litigation, employ-ment law and family law. Brian is a member of the Law Society’s Human Rights Committee. He isinvolved in the Law Society's 'Rule of Law' project (see page 7 for details).

BBrriiaann GGaallllaagghheerr ((sseeaatteedd,, cceennttrree)) ppiiccttuurreedd wwiitthh ppaarrttiicciippaannttss iinn tthhee lleeggaall ttrraaiinniinngg ccoouurrsseess oorrggaanniisseedd bbyy tthhee RRuullee ooff LLaaww pprroojjeecctt iinn EEtthhiiooppiiaa

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iF L A C N E W S l J U L Y - S E P T E M B E R 2 0 0 9

During this decade FLAC invest-ed in developing a legaladvice service at every key

Citizens Information Centre in Irelandwhere a service was not in place in con-junction with the dedicated staff andorganisers at CICs around the country.All counties have at least one legal adviceservice and centres outside Dublin(apart from Cork City) operate inde-pendently of FLAC, although we refervolunteers to them and assist them withtheir legal advice service in any way thatwe can.

FLAC is deeply indebted to the volun-teer barristers and solicitors, cur-rent and past, who have given so gener-ously of their time providing legal adviceto members of the public in FLAC cen-tres. In 2008, FLAC through its data col-lection programme recorded 7,500callers attending centres for a consulta-tion with a solicitor.

During this decade, FLAC has alsoresourced its telephone informa-tion and referral line which is nowtaking in excess of 10,000 queries peryear and we are also constantly develop-ing legal information leaflets and book-lets for members of the public, includinga series of information leaflets whichcover matters such as separation anddivorce, employment rights, the SmallClaims Court and wills/probate.

FLAC has long been a vocal advocate ofdebt law reform and has been work-ing in the area throughout the decade. In2003 FLAC published its report An EndBased On Means? which condemned legalprocedures for dealing with debt as out-dated. It was followed by a conference inFebruary 2004 proposing alternativedebt settlement approaches. FLAC madevarious subsequent law reform propos-als around credit regulation and debtenforcement, leading in 2009 to anotherreport, To No One’s Credit, the debtor’sexperience of Instalment and Committal

Orders in the Irish legal system, the culmi-nation of a major piece of research,including interviews with people experi-encing indebtedness who have beenthrough the legal system.

Campaigning for expansion and reformof the civil legal aid systemremains a core issue for FLAC’s work. In2005 FLAC published an in-depth assess-ment of the Irish system including itsBlueprint for Civil Legal Aid, calling for fair-er means testing and action on unman-ageable waiting lists. The governmentintroduced some improvements in thestate scheme in September 2006.Coinciding with its 40th anniversary in2009, FLAC launched its report on CivilLegal Aid in Ireland: 40 Years On. Thereport highlighted ongoing issues withthe state scheme of civil legal aid: longwaiting times; limited resources; and thecontinued exclusion of important areassuch as employment tribunals.

During this decade FLAC has also beenconcerned with the treatment of peoplein the asylum/protection/leaveto remain system, particularly withregard to their treatment under thestate's 'direct provision' which requiresasylum seekers to live in hostel-typeaccommodation. In 2003 FLAC pub-lished a report, Direct Discrimination? Ananalysis of the scheme of Direct Provision inIreland. An updated report will be pub-lished in late 2009. FLAC initiated a cam-paign to restore universal Child Benefitin 2006 which led to work on theHabitual Residence Condition that con-tinues today and has yielded importantclarifications on the law in this area ofsocial welfare.

While well established in other jurisdic-tions, Public Interest Law is anemerging concept in Ireland. Startingwith a major conference in 2005, FLACran a series of public seminars androundtables featuring eminent speakersto raise awareness of PIL in Ireland. In

2008 FLAC established the PublicInterest Law Alliance to focus and coor-dinate groups in Irish civil society wish-ing to use law to advance socially pro-gressive goals.

FLAC’s most high profile public interestcase currently is Foy -v- An t-ArdChlaraitheoir & Ors. Dr Lydia Foy soughtlegal recognition following gender reas-signment and, represented by FLAC inthe High Court, obtained the first everDeclaration of Incompatibility with theECHR in 2007. However FLAC has takenother cases that further public interestin recent times, such as its action to endthe discrimination in participation onjuries for deaf people and a separatecase on the jury ban for older people.

In 2008 FLAC, in conjunction with theICCL and IPRT, produced a ShadowReport to the state's Country Reporton compliance with the United NationsInternational Covenant on Civil andPolitical Rights. At a follow-up confer-ence in 2009, UN Human RightsCommittee member Professor MichaelO’Flaherty decried the “scandal” of gov-ernment cuts to the Irish Human RightsCommission (IHRC) and the EqualityAuthority, only weeks after the UN rec-ommended increasing their resources.

FLAC has continued the ThomasAddis Emmet Fellowship through-out this decade, sending Irish law stu-dents to Seattle to work in a US publicinterest environment and hosting USrecipients of the William Sampsonfellowship in our offices each summer.Since 2007 FLAC has hosted an annuallecture in memory of socio-legal activistDave Ellis.

Over four decades, FLAC has cam-paigned to improve the lives of disadvan-taged people in Irish society and its cam-paign for equal access to justice forall is ongoing.

22000000 ttoo tthhee pprreesseenntt:: WWoorrkkiinngg ffoorr tthhee ppuubblliicc iinntteerreesstt

FF LL AA CC NN EE WW SS ll SS PP EE CC II AA LL 44 00 TT HH AA NN NN II VV EE RR SS AA RR YY EE DD II TT II OO NN llFF LL AA CC FF RR OO MM 22 00 00 00

Irish Independent, 3 December 2008At the launch of FLAC’s campaign torestore universal Child Benefit, September2006: Senator Ivana Bacik; Maria Corbett,

Children’s Rights Alliance, David Joyce,ICTU; Jacqueline Healy, MRCI

On 8 March 2004, at a conference onreform of laws on consumer debt:TomKeating (MABS), Paul Joyce (FLAC), FelixO’Regan (IBF) and Peter Ward (FLAC)

iiii F L A C N E W S l J U L Y - S E P T E M B E R 2 0 0 9

FF LL AA CC NN EE WW SS ll SS PP EE CC II AA LL 44 00 TT HH AA NN NN II VV EE RR SS AA RR YY EE DD II TT II OO NN ll FF LL AA CC FF RR OO MM 22 00 00 00

Irish Times, 9 June 2003

At the FLAC/SICCDA conference on ‘Realising Rights’, 30June 2005,(L-R): Sarah Flynn, Donncha O’Connell, Dave Ellis

At FLAC’s conference on Public Interest Law and Litigation in Ireland,6 October 2005 (L-R): Canadian lawyer Ellie Venhola, FLAC DirectorGeneral Noeline Blackwell and Mrs Justice Catherine McGuinness

Launching FLAC’s report and blueprint on civil legalaid, 22 July 2005 (L-R): Peter Ward BL, Padraic Kenna

(NUIG), Catherine Hickey (FLAC)

Irish Times, 6 July 2009

Irish Times, 6 October 2005

Irish Times,18 Feb 2008

Irish Times, 12 February 2005

F L A C N E W S l J U L Y - S E P T E M B E R 2 0 0 9 iii


At a FLAC seminar on public interest law, 30April 2007 (L-R): Solicitor John Costello, retiredjudge Declan Costello and Prof W Kingston.

Irish Independent, 18 May 2008

Dr Lydia Foy with FLAC Solicitor Michael Farrell following the issuing ofthe first ever Certificate of Incompatibility with the ECHR in her case

for gender recognition in the High Court, 19 October 2007

Irish Times, 3 February 2004

Right:Irish

Examiner,20

October2004

Left: SingerMary Coughlan(centre)launchedFLAC’s reporton debtenforcementon 6 July 2009.Also picturedare Paul Joyce& NoelineBlackwell.

Dr Maurice Manning (R) launched FLAC’s report DirectDiscrimination? on 16 July 2003. Here also FLAC solicitor Eleanor

Edmond, FLAC Chair Siobhan Phelan and Ruslan Tschoev

At the joint NGO follow-up conference on ICCPR, 6 April 2009(L-R): Eamonn MacAodha (IHRC), Prof Michael O’Flaherty,

Michael Farrell (FLAC), Dr Maurice Hayes,Tanya Ward (ICCL).

iivv F L A C N E W S l J U L Y - S E P T E M B E R 2 0 0 9


Irish Examiner, 6 July 2009

Irish Times, 23 July 2005

Right: IrishExaminer,

3 December 2008

Below: LawyerColin Gonsalves

speaking at apublic interestlaw seminar in

India (right: FLACDirector Noeline

Blackwell)6 Sept 2006

Irish Independent,23 December 2008

Irish Examiner, 7 December 2003

At the Thomas Addis Emmet Fellowship award cere-mony, 10 June 2002 (L-R): the Hon. Mr Justice DonalBarrington, Chief Justice Keane, Fellowship recipient

Paul O’Connell and FLAC Chair Siobhan Phelan.

FLAC was recipient of a People of the Year award in 2004.Accepting onbehalf of the organisation on 9 October 2004 were (L-R) Siobhan

Phelan, Peter Ward and Iseult O’ Malley of FLAC Council.Irish Times, 25 October 2001

mend HIV tests where there is domes-tic violence involved.

The EWLA carries out research andadvocacy and where there is a need fornew legislation (especially in the area ofgender-based violence) it makes submis-sions to Parliament. Anecdotally, theEWLA also supplies copies of the PenalCode to police, as in many cases this isnot supported by central government.

Domestic violence is deeply rooted andculturally acceptable in Ethiopia. Much ofEWLA's time is devoted to projectsaimed at eradicating gender-based vio-lence, and on our visit we heard of proj-ects such as 'Best Area Husband,' with acalf as the prize.This may seem to ourNoughties, sophisticated mindset to beineffectual, but the EWLA is convincedthat using non-confrontational methodsand respecting traditional practices willachieve much where the state itself hasfew or no resources to devote to erad-icating gender-based violence.

My experience in Ethiopia convinced methat the FLAC methods are successfullyapplicable in countries which are verydifferent from Ireland.

F L A C N E W S l J U L Y - S E P T E M B E R 2 0 0 9 99

tthhee rruullee ooff llaaww iinn EEtthhiiooppiiaa


LL--RR:: EErrccuuss SStteewwaarrtt SSCC,, PPaattrriicckk DDiilllloonn MMaalloonnee BBLL aanndd HHiillkkkkaa BBeecckkeerr,, ssoolliicciittoorr wwiitthh tthhee IImmmmiiggrraanntt CCoouunncciill ooff IIrreellaanndd,, wwhhoo aallssoo ttrraavveelllleedd ttoo EEtthhiiooppiiaa ttoo pprroovviiddee ttrraaiinniinngg oonn lleeggaall pprraaccttiiccee aanndd pprroocceedduurreess ttoo llooccaall pprraaccttiittiioonneerrss

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In the course of K's marriage, she gavebirth to three children. After her hus-band's death, his grandchildren from aprevious marriage pursued K and herthree children in the Sharia courts(Muslim religious court) claiming ashare of the late husband's estate. Krefused to be judged by the Shariacourt and wanted the matter dealtwith in the state courts.Article 34.5 ofthe Ethiopian Constitution states that"the Constitution shall not precludethe adjudication of disputes relating topersonal and family laws in accordancewith religious or customary laws, withthe consent of the parties to the dis-pute," i.e. the consent of both parties isrequired to give the Sharia court juris-diction.

Despite this constitutional right, theSharia court denied K's request to bejudged by the state courts and gavejudgment in favour of the grandchil-dren. K appealed to the Upper ShariaCourt of Appeal which reaffirmed thejudgment. K then came to the EWLA

which decided to take on the case andrepresent her in the state courts. Itwas concerned that the higher Shariacourt had denied K's constitutionalright and that this would affect not justher but all Muslim women in Ethiopia.Furthermore, the Constitution statesin Article 3.1 and 3.7 that women haveequal inheritance rights with men.EWLA brought the matter unsuccess-fully before the Supreme Court (as inEthiopia the civil courts are not per-mitted to adjudicate on constitutionalissues).

EWLA then brought the matter beforethe 'Council of Constitutional Enquiry'which is the body charged under theEthiopian Constitution with dealingwith constitutional matters. There theerror in interpretation was acknowl-edged and judgment given in favour ofK. EWLA complained that this casetook a very long time from start to fin-ish - some four years, but I told them itwould take at least as long in Ireland!

CASE STUDY: Here is an example of a case taken on by EWLAlawyers, from a booklet of selected casework:



FFLLAACC ccaasseewwoorrkk mmaakkeess pprrooggrreessss iinn ccllaarriiffyyiinngg llaaww oonn hhaabbiittuuaall rreessiiddeennccee

The Department of Social andFamily Affairs had appealedpositive decisions by Social

Welfare Officers in four cases to grantChild Benefit to mothers in the asy-lum/protection/leave to remain processduring 2008. FLAC represented thefour women in the reviews by theChief Social Welfare Appeals Officerand also applied for review of a furtherfour cases where the Appeals Officerhad ruled against the appellants basedon the 2003 Supreme Court case ofGoncescu v Minister for Justice, Equality &Law Reform.

The Department claimed that followingthe Goncescu ruling, nobody in the asy-lum/protection/leave to remain processcould qualify under the HabitualResidence Condition (introduced in2004) as they could not be consideredresident in Ireland.

This was now a stricter departmentalposition than was previously the case,where the five criteria laid out in theSocial Welfare and Pensions Act 2007were taken into account. It nowseemed that the Department wasexcluding people in the asylum/protec-tion/leave to remain process as a classfrom qualifying under the HRC, asdetailed in its Guidelines to DecidingOfficers dated June 2008.

FLAC argued that the Goncescu rulingwas not relevant in deciding social wel-fare cases, given that it concernedunsuccessful applicants for asylum/leaveto remain who were seeking to stay inIreland as self-employed businesspeo-ple based on EU agreements.

Further, FLAC queried how theDepartment used advice from theAttorney General in regard to these

cases. The AG had advised that timespent in the asylum process could notbe considered 'residence'. However theAG had given the opinion that timespent in the state was only one of thefive factors used in determining habitu-al residence, and that other factors suchas forming relationships, putting downroots in communities and having chil-dren attending local schools could helpto establish habitual residence also.

By August 2009, the Chief SocialWelfare Appeals Officer had decidedon four of the total eight cases. Hefound that the Goncescu ruling was notrelevant to social welfare cases andnoted the Department's failure toquote the rest of the AG's advice withregard to residence.

In practice this means:

1. The Department and DecidingOfficers cannot exclude applicantsfor asylum/protection/leave toremain as a group from satisfyingHRC. Each case must be decidedon its own facts.

2. The length of time spent in the Stateis not the deciding factor in deter-mining habitual residence and giventhat applicants for asylum/leave toremain are not allowed to work orleave the state while their applica-tion is processed, the “centre ofinterest” criterion and the futureintentions of the applicant should beduly considered.

3. Contacts and associations devel-oped while in the asylum/leave toremain process can help satisfyHRC criteria.

4. As regards precedents, the Chief

Social Welfare Appeals Officerseeks to ensure consistency andthus deems it important to identifyunderlying general principles in anycase. Therefore it is open toclaimants to cite examples of previ-ous cases where people in the asy-lum/protection/leave to remainprocess met HRC criteria.

FLAC suggests that claimants who havespent long periods in the process,awaiting decisions through no fault oftheir own, should not be penalised orprevented from having that time recog-nised in determining HRC and shouldargue that it be taken into account.

It should be noted that not everybodyin the asylum/protection/leave toremain process will now qualify underHRC. In order to satisfy this condition,applicants must still satisfy the criteriain the 2007 Act.

It should also be noted that theDepartment had unilaterally decided towithhold all payments to clients whohad successfully appealed decisionsuntil the review of the decision hadbeen completed. FLAC issued judicialreview proceedings in one case but thedecision review was completed andpayments made (with arrears) shortlybefore the hearing date for proceed-ings. Thus the issue is still outstandingfor future reviews of successful socialwelfare appeals where the Departmentagain refuses to issue payment.

On 1 September, FLAC issued a briefing note on the Habitual Residence Condition (HRC) which is aresumé of work the organisation has been doing to clarify the law in the this area. The briefing sum-marises four recent decisions by the Chief Social Welfare Appeals Officer and explains how the pos-itive decisions help clarify Irish law on habitual residence, which remains to some degree arbitraryand confusing. The briefing is summed up below:

For the full briefing paper,please go to the FLAC website:

http://www.flac.ie/download/doc/09_09_01_

hrc_briefing_note_final.doc



Mercy Law Resource Centre isa new organisation which willopen its doors to the public

this September. It is the brainchild of theSisters of Mercy who saw that law wasbecoming increasingly important as away of influencing public policy and shap-ing society and who wanted to use thisforce on behalf of those most margin-alised in society.

After much consultation and research, itwas finally decided that the new servicewould be aimed at those who are expe-riencing homelessness. It was felt thatpeople going through the experience ofhomelessness were particularly disad-vantaged because, as well as contendingwith material poverty, they had to con-tend with societal attitudes and preju-dices.These are particularly strong whenpeople are struggling with additionalissues such as addiction, mental illness,leaving prison, prostitution and so on.

Because people in these situations canbe alienated by authority, they may findthe legal system difficult to access andnegotiate.Accordingly, the Centre is try-ing to develop a service that will be

friendly, easy to access and responsive tothe needs of its client group. Innovativefeatures include dealing with any area oflaw with which clients have problems,meeting clients at times and in placesthat suit them e.g. early morning adviceclinics in homeless hostels and providinga befriending service where clients areaccompanied and supported through theprocess of accessing legal services. In thisway, the Centre hopes to make someeffort towards overcoming the culturaland psychological barriers that can standin the way of people’s access to justice.

In addition to working with individualclients, the Centre will offer legal sup-port to voluntary and community organ-isations working in the field of home-lessness and related areas. It also wantsto use the law to advocate on behalf ofpeople going through homelessness forchanges needed in law, policy and socialattitudes.

MLRC will start with the services ofsolicitor Michele O’Kelly and administra-tor Caitriona O’Hara.

PPuubblliicc iinntteerreesstt lliittiiggaattiioonn -- NNoorrtthheerrnn ssttyyllee

NNeeww lleeggaall rreessoouurrccee ffoorr hhoommeelleessss ppeeooppllee

Anew initiative has recently beenestablished in Belfast named thePILS Project (Public Interest

Litigation Support). After a 2005 studyshowed that there was a need anddemand for dedicated strategic litigationproject in Northern Ireland, theCommittee on the Administration ofJustice (CAJ) sought funding from AtlanticPhilanthropies to embark upon a five-yearpilot project in the area. Funding wasgranted in 2007 and the project wasestablished in May 2009.

The PILS Project will work to advancehuman rights and equality in NorthernIreland through the use of and supportfor public interest litigation. Its defini-tion of public interest litigation is theuse of litigation or legal action which

seeks to advance the cause of minorityor disadvantaged groups or individuals,or which raises issues of broad publicconcern.

The main aims of the project are to:a. Enhance awareness of public interest

litigation and facilitate communicationbetween non-governmental organi-sations working in this area throughThe PILS Project Stakeholder Forumand other awareness raising activities;

b. Provide financial and/or legal supportto public interest cases which meetthe PILS Project case criteria;

c. Work with the legal profession toincrease levels of pro bono activity inNorthern Ireland;

d. Raise awareness of and seek to tack-le existing barriers to public interest

litigation through the organisation ofconferences and seminars,productionof publications and other non-litiga-tion based activities.

Strategic oversight of the Project lieswith a five member Board. The projecthas 3 staff: Melissa Murray is ProjectManager and Solicitor, MarieanneMcKeown is Development Officer andMickey Ghanni works as the FinanceOfficer. The team can be contacted atArthur House, 41 Arthur Street, Belfast,BT1 4GB, telephone: 048 90446201 orwww.pilsni.org.

FLAC and PILA look forward to workingclosely with PILS over the coming monthsand years to promote the use of the lawin the public interest across Ireland.

PPiiccttuurreedd aabboovvee aarree TToonnyy OO’’RRiioorrddaann,, MMaannaaggeerr ooff ooff FFLLAACC’’ss PPuubblliicc IInntteerreesstt LLaaww AAlllliiaannccee((PPIILLAA)) pprroojjeecctt aanndd MMiicchheellee OO’’KKeellllyy,, ssoolliicciittoorr wwiitthh tthhee MMeerrccyy LLaaww RReessoouurrccee CCeennttrree



Don Crewe is a member ofFLAC's National Council and isa partner with Patrick Buckley &

Co Solicitors, based in Cork. He firstencountered FLAC in UCC in 1979,whenhe joined the University's FLAC associa-tion as first year law student.He never didmanage to break that early connectionand has been involved with the organisa-tion ever since; as he says himself, "Everytime I thought I was out…”

Having finished his BCL in 1982 and LLBin 1985, by the time he was apprenticedDon had become involved in providinglegal advice and information to the publicin the FLAC advice centres in Cork. Atthat time there were two centres, one onTuckey St and the other in the BlackpoolCommunity Centre. Don volunteered inboth, and feels he benefitted very muchfrom the experience and contact with thepublic that volunteering in a FLAC centrebrings. He was a volunteer for much ofthe 1980s and 1990s.

He joined the National Council of FLACin 1989 and has remained on the Boardever since. The Council was, at the timehe joined, much more involved in hands-on management of the organisation, asthe staff was very small. In the years sincethen however the organisation and staffhave grown vastly and the Council's rolenow is more one of governance and strat-egy. As he comments, "in fact, FLAC isabout to enter into a new phase of strate-gic planning towards the end of 2009 so itis very timely to reflect on how the struc-ture has changed over the years."

Don works as a solicitor in generalpractice specialising in commercial workand so his involvement with FLAC is awelcome opportunity for him to exer-cise his interest in other areas of lawsuch as access to justice, debt, employ-ment and social welfare law. “Issues likedebt and employment law are very top-ical and relevant to increasing numberstoday and FLAC’s work on credit anddebt law in particular is very timely andimportant,” Don comments.

The growth in FLAC's profile over the

last number of years is very heartening,says Don. It is great to see FLAC makinga difference and being recognised formany decades of hard work. However,other simple things like moving to itsown premises on Dorset Street havealso made a big difference for the organ-isation. Another development that hasmuch potential for effecting positivechange in Irish society is, he believes, thePublic Interest Law Alliance (PILA) proj-ect. Ultimately, says Don, change is whatFLAC is trying to achieve – change thatwill "establish, maintain and improvepeople's basic rights and meet the chal-lenge of a transformed social, politicaland economic environment."

He feels that FLAC, with its strongresources of volunteers and staff, is wellplaced to help people impacted by eco-nomic recession and be a strong voiceand advocate for change to enhancepeople's rights. Into the future Donhopes for improvement in the legal aidscheme.While funding is a huge problem,FLAC must continue to campaign for

better provision of civil legal aid for thepublic as it is needed now more thanever. He hopes FLAC's new project,PILA, will go on to make the connectionsbetween the various stakeholders andcreate a new general concept of usinglaw in the public interest in Ireland, basedon Irish conditions and resources ratherthan following a specific model fromabroad. He hopes PILA will expand thelimited view of public interest law as onlybeing about litigation and will bring peo-ple together to see how the law can beused in a mixture of ways.

At the end of the day, Don would like tosee FLAC continue to work on improv-ing basic human rights for vulnerableand under-resourced people, in keyareas like housing, social welfare, healthand employment – basic issues thataffect those who have been impactedmost adversely over the last year. FLAChas to target these areas, as he says," sothose with the least voice and leastpolitical clout have somebody battingfor them."

DDoonn CCrreewweeSSoolliicciittoorr && mmeemmbbeerr ooff FFLLAACC CCoouunncciill

FFooccuuss oonn FFLLAACC::



As it is not means tested and isintended for those who cannotafford to engage a private solici-

tor, FLAC is an important access point forpeople requiring straightforward, speedylegal advice who cannot wait for advicefrom or an appointment with the LegalAid Board (LAB).With the Civil Legal AidAct 1995, the state established the LAB toprovide legal representation and advice incivil matters to people meeting financialcriteria. However, waiting times to see aLAB solicitor in Clondalkin currently canbe up to two months.

I think there is a general lack of knowl-edge among people about their entitle-ments to state civil legal aid and how toapply for and access the service.The LABis under a statutory obligation to dissem-inate information in relation to its servic-es.Added to this, the LAB is excluded bylaw from acting in certain areas, for exam-ple in the Employment Appeals Tribunal,the Social Welfare Appeals Tribunal, theEquality Tribunal and areas such as localauthority housing.

At Clondalkin FLAC, I provide advice on arange of legal queries including family law,court related matters, housing/landlordissues, probate issues and, more increas-ingly since the economic slump, employ-ment law and credit/debt issues. It was

assumed that the tide of the Celtic Tigereconomy would raise all boats. A lot ofpeople got caught up in the hype of Irisheconomic success and over-extendedthemselves financially.

It is now apparent that the high level ofIrish personal over-indebtedness resultedfrom a culture that encouraged easy cred-it, fuelled by the belief that the economywould continue to grow and that anyslowdown would come as a ‘soft landing’.To use an analogy,unfortunately the econ-omy crashed into the Hudson River. It isbarely afloat, with some people ‘injured’,and a takeoff for the economy in its pres-ent form is not estimated for some time.

For example, some Clondalkin FLACclients got car financing or signed up tomortgages (including sub-prime mort-gages) that focused more on their abilityto meet a certain repayment per monththan on the high fixed-interest rates appli-cable or the potential for disaster if cir-cumstances deteriorated due to reducedpay, working hours or redundancy.

A lot of people now find themselves indire financial distress, having to negotiatewith lenders without assistance and facingcourt applications for repossession oftheir homes, despite the recent Code ofConduct for Mortgage Arrears from the

Financial Regulator. Repossession applica-tions may be delayed or put on hold, butthey remain active and hanging over theheads of those affected. If a person hastaken out a 100% mortgage and the prop-erty is now in negative equity, even ifhe/she hands back the keys to the lender,he/she will still owe the differencebetween the current house value and theoriginal purchase price, plus costs andpenalties.

The Money Budgeting and AdviceService provides a very highly respectedfinancial advice service; however oncelegal proceedings are issued, a personrequires legal advice and representation.Individuals and families struggling tokeep their heads above water financiallywho cannot afford a private solicitormust be able to seek legal aid if they areto access the legal system and protecttheir position.

Another example is of employers takingadvantage of the economic downturn tolay off staff under the guise of ‘cost sav-ings for company survival’. A post may bereported as redundant, where in fact thismay not be the case. It is very difficult foran employee being let go to take a case tothe Employment Appeals Tribunal if he/shecannot afford it, as the civil legal aidscheme does not cover representation atquasi-judicial forums. This is not consis-tent with the right to a fair hearing asguaranteed by the Irish courts and inter-national human rights law. The EuropeanCourt of Human Rights has held (in Aireyvs Ireland) that the state has a duty to pro-vide legal aid where the rights and obliga-tions of the individual are in question andthe matter is so complex that the appli-cant could not reasonably be expected torepresent him/herself effectively.

In summary, people with legal problemsrequire legal help at the earliest possibleopportunity in order to avoid a slew ofother problems developing which mayprove more costly to the state in the longterm. FLAC is providing a stop-gap forthese problems but ultimately the statemust take appropriate action to serve itscitizens adequately in this area.

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Michael O’Dwyer, a partner in a firm of solicitors, volunteers in theFLAC Centre in Clondalkin on Tuesday evenings and is rostered inabout once a month. The centre is based in the Citizens InformationCentre (CIC). Below Michael speaks about his work with FLAC:

Equality and Rights Alliance (ERA)has lodged a complaint to the EUCommission following the savage

cuts to the equality and human rights sec-tor. ERA members contend that the IrishGovernment has used the cover of finan-cial cutbacks to mount a targeted attackon Irish Equality and Human Rights insti-tutions.This has undermined the ability ofthe Equality Authority to function as adesignated national body under EU equal-ity directives.

In particular, the combination of a budgetcut and an accelerated decentralisationprogramme have undermined the abilityof the Equality Authority to effectively ful-fil its prescribed functions. The Authority’sbudget was cut by 43% last October whilecuts to other Justice departmental agen-

cies were in the order of just 2 to 5%. Inaddition, the McCarthy report has recom-mended a further 10% reduction in theAuthority’s non-pay budget.

The complaint was prepared by OrlaghO’Farrell who worked formerly as alawyer with the European Commissionand is the Irish member of the EU’s net-work of independent legal experts onanti-discrimination law.

ERA has also submitted a petition to theEU Parliament on this issue. ERA hasreceived the support of all oppositionMEPs who are signatories to the petition.For more information and to read the fulltext of both the complaint and petition,goto: http://www.eracampaign.org/com-plaint-to-the-eu

The European Union’sFundamental Rights Agency(FRA) has appointed the Irish

Council for Civil Liberties (ICCL) andUniversity College Dublin (UCD)School of Social Justice as the FRA’snew RAXEN National Focal Point onracism, xenophobia, islamophobia andanti-Semitism in Ireland.

The ICCL/UCD consortium will beassisted by a panel of the country’s topacademic experts, as well as by theImmigrant Council of Ireland (ICI),which has been subcontracted todevelop the communications work ofthe RAXEN National Focal Point.

RAXEN National Focal Points are theFRA’s recognised national coordina-tors, contracted to manage an informa-tion network including governmentdepartments, research bodies, statuto-ry human rights and equality bodies,NGOs and social partners. Based oninformation gathered through this net-work, the ICCL / UCD consortium willprovide regular reports to the FRA onracism and related forms of intoler-ance in Ireland.

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FLAC has joined the ‘Poor Can’t Pay’Campaign, a civil society movementthat believes people earning the mini-

mum wage or living on social welfare are notresponsible for our present economic crisisand should not be penalised in the forth-coming budget. You can support the cam-paign by visiting www.thepoorcantpay.ie tosend an email to your local representatives.

Pictured left are representatives of campaignmember organisations seated around the "cabi-net" table on Molesworth Street – in the shad-ow of Dail Eireann – to appeal to theGovernment to consider the harsh impact cutswill have on thousands of families and singlepeople living on welfare or struggling on lowincomes.

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EERRAA ccoommppllaaiinntt ttoo EEuurrooppeeaann UUnniioonn

FLAC’s third annual Dave Ellis Memorial Lecture will take place on Tuesday1 December at 6pm, followed by a wine and cheese reception.

Venue will be confirmed. We are delighted to announce that Dr MauriceHayes will deliver this year’s lecture. All are welcome. We extend a special welcome to all current and past FLAC volunteers.

For further information, please email us at [email protected] or phone us at (01)8745690.You can also check the website for updates under our Events section.

Date for your diary: FLAC annual lecture for 1 December



It may be too late for Ireland but theEuropean Commission has recentlyinvited submissions to a consulta-

tion on responsible lending and bor-rowing which closed at the end ofAugust.

Nonetheless, FLAC felt that it wasimportant that we attempted to put onthe record our view of how recklessattitudes to credit in Ireland played asignificant role in the ‘boom to bust’scenario that is the new reality for somany today. FLAC’s submission to thisprocess can be accessed on our websiteat www.flac.ie.

At the time of writing, the economies ofmany EU Member States are said to berecovering and doubtless there aremany across the EU who look forwardto fresh lines of credit being opened,whether as consumers or to developand maintain small businesses.

Equally, there are doubtless lenders outthere in search of new market places.There is no doubt that credit oils thewheels of economic activity but thepursuit of economic growth withoutregulatory vigilance is a recipe for disas-ter. Consistently, the worldwide reces-sion and US sub-prime crisis was said tobe the main catalyst for our deteriorat-ing economic situation. The reality isthat while it played a significant part,poor regulation and largely unfetteredaccess to credit were crucial elementscontributing to the current debacle.

Consistently too throughout the boomperiod the State maintained that com-petition would look after the interestsof consumers. In fact it seems to us thatcompetition between credit providersreached such a fever pitch that would-be consumers were bombarded withcredit offers and common sense was inmany instances abandoned.

A sub-prime lending market sawlenders issuing loans at high interestrates to people with impaired credit

histories on the assumption that analready overheated property marketwould remain buoyant. Calls to proper-ly regulate the sub-prime market wereignored until long after the damage hadbeen done.

What role has the European Unionplayed so far in curtailing reckless lend-ing? The answer would appear to be nota great deal.The common standards ofconsumer protection adopted in thefirst Consumer Credit Directive wereconfined in the main to ensuring thatconsumers received transparent infor-mation in relation to credit agreementsand the updated directive that hasrecently been agreed does not substan-tially alter that approach.

Equally, there has never been an attemptto agree a directive that would imposesome minimum standards of fairness inrelation to debt enforcement proce-dures.This has allowed a Member Statelike Ireland to maintain outdated debtrecovery and bankruptcy proceduresdespite huge increases in credit andover-indebtedness.

It is notable too in this regard that theEU has nonetheless seen fit to agree anumber of legal instruments to makedebt collection and judgment enforce-ment easier across borders. If the EUcan harmonise cross-border debt col-lection, should it not insist on commonstandards of fair treatment for con-sumer debtors?

Summary of FLAC’s submission

In brief, FLAC’s submission suggestedthat the primary onus should be oncreditors to ensure that credit is pro-vided responsibly. Financial institutionshave the necessary expertise to assessrisk, whereas consumers often lack thefinancial and legal knowledge necessaryto fully understand credit products andtheir consequences. In many instancesduring the boom, loans were grantedwhere financial information and existing

commitments should have indicatedthat default was inevitable.

This is not to say that some borrowerswere not reckless too in the manner inwhich credit was consumed.A responsi-ble lending culture should involve theprovision of safe, responsible and com-prehensible products, linked to genuineassessments made by the lender of theborrower’s capacity to repay at rates ofinterest that are profitable for thelender but not exploitative.

In response to the specific question asto whether there were any classes ofcredit agreement that might be regard-ed as inherently unsuitable for con-sumers, FLAC suggested that a 100%mortgage at the height of a propertyboom, the latest in a series of multiplecredit cards, or a Hire Purchase agree-ment on a very expensive vehicle mightbe potential examples. The role thatmortgage intermediaries and creditintermediaries had played in lining upcustomers for credit was outlined and,in particular, the lack of objectivity ofintermediaries whose commissionoften depended upon a successful loanapplication.

FLAC suggested that meaningful reformwould require a multi-prongedapproach, enhancing consumer informa-tion and education on financial prod-ucts, curbing sharp and dishonest mar-keting practices, and imposing minimumstandards of care on credit providers.The key to the success of a reformedregulatory system, however, lies withenforcement. Lenders facing civil andcriminal sanctions for breaching regula-tory requirements will be discouragedfrom engaging in reckless lending.

Although increased regulation mayincrease costs and complicate transac-tions, a balance must be struck betweena free-for-all and unduly restrictingaccess to credit. Consumers in Irelandare currently paying the price for thelack of balance.

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The Equality & Rights Alliance (ERA) ishosting a major conference on Tuesday24 November, in the Radisson Hotel,Golden Lane, Dublin 8.

The conference will outline:

What a more robust equality andhuman rights culture and statutoryinfrastructure would look like, andthe positive difference it will makefor people experiencing inequality.

Why there is a need for a morerobust equality and human rightsculture and statutory infrastructureand why it is key to invest in equali-ty in times of economic difficulty.

How a more robust infrastructurecan be achieved by:

8 an examination of the key findingsof research commissioned by ERA;

8 drawing on informed perspectivesof participants at the conference;and

8 inviting key Justice and Equalityspokespeople from all the politicalparties to outline their vision for amore robust infrastructure.

ERA is also in the process of arranginga number of excellent key-note speak-ers, including Karen Chouhan. Karenwas named a Key Visionary by theJoseph Rowntree Charitable Trust inthe UK.

Places will be limited so early booking isadvisable – for more information contact [email protected]

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:

Name: .............................................................................................................................. Amount: € ...........................

Address: ..............................................................................................................................

..............................................................................................................................

Card number:

Please debit my: Visa Mastercard Laser

Expiry date: | CSV:

I am : a PAYE taxpayera non-PAYE taxpayer

If you are a PAYE-only taxpayer, a gift of €250 or more could beworth up to an extra 72% to us!

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Note for your diary:ECHR seminar for practitioners

16 October 2009 from 4 to 5.30pm.

PILA (Public Interest Law Alliance) will host a seminar in Dublin fronted by KevinKerrigan, co-author of Advocacy in the Courts: Using the Convention in courts andtribunals. Kevin is Associate Dean, School of Law, University of Northumbria. Heis a practising solicitor with experience of criminal and human rights cases incourts at all levels. He is a Human Rights Act consultant.Further details and venue to follow – see www.pila.ie for updates.

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