Flac news spring 2013 final press

flacNewsI S S N 0 7 9 1 4 1 4 8 l V O L U M e 2 3 l N U M B e r 1 l J A N U A r Y – M A r C H 2 0 1 3

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

A new legal dawn for insolventdebtors, but more support needed

It would be fair to describe 2012 as amomentous year for campaignersseeking reform of Ireland’s extremely

outdated debt laws. Despite delays andnotwithstanding the gaps still remaining inthe law – and that it is still largely notenacted as of the end of March 2013 – thefact that we now have a working legalstructure to help those who are insolventwork through their debt situation is amassive step forward. While it is worthreflecting on how we got here, we willalso consider how to move on from apoint where too many people have beenwaiting too long for a suite of solutionsthat, unfortunately, do not join together inthe way that people need.

A crisis with deep roots

FLAC has been working on this issue formore than ten years. A landmark reportA n End based o n Means, penned by SeniorPolicy Analyst Paul Joyce in 2003, clearlyidentified deficits in consumerprotections. In particular, it underlinedthe need to update Ireland’s literallyDickensian debt laws given a burgeoningand largely unregulated credit market.Sadly, various governments did not agreewith any need for legal reform. As timewent by, FLAC’s contacts with people inour network of advice centres, on ourtelephone information line and thoughour legal support to the Money Adviceand Budgeting Service confirmed that thelack of regulatory and legal protectionswas hurting consumers, and that peoplelacked access to legal supports in anadversarial, court-based system fordealing with debt where the ordinarydebtor is very much at a disadvantage.

Unfortunately, these core problems haveremained stubbornly in place. By 2009,the Central Bank had begun publishingfigures on mortgage arrears on people’sprivate homes that showed the personaldebt problem was spiralling out ofcontrol, quarter on quarter, with no legalway of helping people to manage theirsituation once they had got into seriousarrears. While the rate has slowed, mostrecent figures show that about 12 percentof all mortgage-holders are in difficulty.An inexplicably and worryingly slow stateresponse has only recently culminated in anewly-minted insolvency law, but severalconcerns remain.

From our work on the ground and withMABS and other partners, FLAC had aclear vision of what was needed in a state

response to the spiralling debt crisis.Together with other legal rights groups,campaigning organisations and individuals,we launched ‘Nine principles to overcomethe personal debt and mortgage arrearscrisis’ in October 2011. This laid afoundation of basic issues on which tobuild a policy and legal response to thedebt crisis. They centred around the Statetaking a holistic approach that wouldencompass all of a person’s debt, ensuringindependence in decisions on debt cases,and aiming to keep people in their homeswhere appropriate with access to socialhousing where needed.

A law at last

FLAC put forward these principles in ourpolicy submissions on the draft scheme of

C o ntinued o n page 8

Paul Joyce, Senior Policy Researcher, speaks at FLAC’s Personal Insolvency conference in April 2012©

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FLAC News Spring 2013 Printwell_FLAC05 vol15no4 17/04/2013 12:22 Page 1

flac News | Vol. 23, No. 1

in this edition...A new legal dawn for insolvent debtors, but more support needed 1 & 8

eCrI calls for publication of decisionson Habitual residence Condition 2

Social welfare appeals continue to rise in 2012 3

Central Bank announces arrears targets 4

Steep rise in housing-related queries to FLAC 5

UN report on human rights defenders in Ireland 6-7

Woman who fled abusive relationship gets Child Benefit arrears 7

UN issues new Principles & Guidelines on Access to Legal Aid 9

Lydia Foy: My Story 10

Lydia Foy goes back to court 10

Focus on FLAC:Maeve regan, PILA Legal Officer 11

On meeting Lydia Foy 11

PILA update:Focus on PILA register lawyers:Michael Kinsley BL 12

Charter of Fundamental rights seminar 12

Legal education for NGOs through PILA 13

TeNI book launch 14

Austerity on trial in the UK: Is there a case for economic cuts? 15

Tri-City Project conference on eUmigrants’ experiences of accessing social welfare 16

Government recognises foreign Transpersons, but no Irish need apply 16

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

editors: Noeline Blackwell, emmaCassidy & Yvonne Woods

Layout & Printing: Printwell Design, D3Contributors: Noeline Blackwell, SaoirseBrady, emer Butler, Jonathan Butterworth,emma Cassidy, Michael Farrell, Laura Feely,Lydia Foy, Paul Joyce, Gillian Kernan, BalqisA. Mohamud, Doris Obot Ogodo, LianneMurphy, Maeve regan, Maria Victory,Yvonne Woods.Photos by Derek Speirs, Lensman & FLAC

ISSN 07914148The views of individual contributors do notnecessarily represent the views of FLAC.

ECRI calls for publicationof decisions on HabitualResidence Condition

In February 2013, FLAC welcomed a reportby the european Commission againstracism and Intolerance (eCrI), a human

rights body of the Council of europe whichmonitors issues related to racism,discrimination and xenophobia in each of the47 member states.

representatives of eCrI conducted a joint visitto Ireland In 2012 with members of theAdvisory Committee of the FrameworkConvention on National Minorities (FCNM),another international human rights body.While eCrI’s report was issued in February2013, the FCNM report is not due out untilApril and is likely to deal with issues affectingTravellers and roma people living in Ireland.

In its report, eCrI highlighted a number ofconcerns shared by FLAC, including themerger of the Irish Human rights Commissionand the equality Authority which it hopes willmeet international standards on independence.eCrI also called on the government to ensurethat the new body is adequately funded andsuggested that it take up the mantle of theNational Consultative Committee on racismand Interculturalism (NCCrI) which wasabolished in December 2008 and has not beenreplaced.

eCrI also called on the Irish Government toenact the Immigration, residence andProtection Bill, which has been in preparationfor the past six years or more. This will finallyintroduce a single procedure for protectionclaimants. Direct Provision for asylum seekerswas another focus of the report with eCrIcalling for a review of the system, as it fellshort of international human rights standards.

FLAC and other NGOs had raised concernsaround the Habitual residence Condition onsocial welfare payments with therepresentatives of eCrI. As a result, itrecommended that clear rules be published forthe application of the Condition as well ascalling for the publication of Social WelfareAppeals Officer’s decisions in cases involvingthe HrC, highlighting the importance of accessto this type of information.

Michael Farrell, the Irish expert for eCrI,convened a meeting of NGOs following thepublication of the report. It is important tonote that the national expert does notparticipate in the official state visit. At themeeting, organisations discussed theusefulness of the recommendations and howbest to use them in their lobbying work toprogress the recommendations.

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For more information on the ECRI report, see http://bit.ly/YKkHMm

Best foot forward for Access to Justice!

On Monday 3 June, over 40,000 women will take to the streets of Dublin for the2013 Flora Women’s Mini-Marathon, the biggest all-women’s event of its kind in theworld. This year we hope to bring together a team of FLAC runners (and joggersand walkers!) to take part in what is always a great day out, rain or shine, and toraise some funds for FLAC to widen access to justice in Ireland.

We invite all our female supporters to join us at this annual event:

4 the first step is to sign up online through www.florawomensminimarathon.ie

4 then get in touch with FLAC to let us know!

We will provide a FLAC t-shirt and materials to help you fundraise.

Just 25 participants raising €200 each would raise €5,000 – hugely valuable at a timewhere funding is more and more difficult to find.

And for all the guys: While this event is female-only, we invite our male supportersto encourage the women in their lives to take part and, of course, to sponsor them!

For more information, contact Emer Butler in FLAC: [email protected] or (01) 887 3600.

F L A C N E W S l J A N U A R Y - M A R C H 2 0 1 3



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Social welfare appeals continue to rise in 2012

On 20 February 2013 the ChiefAppeals Officer, GeraldineGleeson, was invited to make a

presentation to the Joint OireachtasCommittee on Social Protection on socialwelfare appeals, in particular aroundprocessing times and delays. FLAC sentbriefing documents to the Committeemembers in advance of the discussion tohighlight some of the issues arising inFLAC’s report, No t Fair Eno ugh, whichcalled for reform of the appeals system.

At the meeting, the Chief Appeals Officerprovided the 2012 statistics for theAppeals Office which indicated a rise bothin the number of appeals lodged, as wellas in the number of overall live appealswhen these were added to the backlogfrom the previous year. In 2012, theAppeals Office recorded a new high of35,484 appeals received, resulting in aworkload of almost 53,000 live appeals.

Ms Gleeson also addressed the issue ofdelay. She outlined the work her officehad done to reduce processing times fororal hearings from an average of 52.5weeks in 2011 to 39.5 weeks in 2012,although the length of time needed toprocess summary decisions had increasedfrom 25.1 weeks in 2011 to 27.8 weeks in2012. On the whole this was a reductionof 10.2 weeks in processing times. Sheacknowledged that the delays were“significant and unacceptable” and calledon the rest of the Department of SocialProtection to “improve processing timesfor the portion of the appeals process forwhich it is responsible”. Ms Gleesondrew attention to the fact that the biggestdelays were experienced by thoseapplying for medically based schemes.This, she explained, was because therewere backlogs which the Department wasactively trying to clear and new MedicalAssessors had been appointed to this endwith more expected in the near future.

However, despite the fact that thenumber of Appeals Officers increased in2012 to 41, the number of finalisedappeals actually fell. The Chief AppealsOfficer attributed this to the rise inSupplementary Welfare Allowanceappeals now made directly to the AppealsOffice cutting out a first stage HSe appeal,as well as the high number of new Appeals

Officers who had less than 18 monthsexperience by the end of last year. Shenoted that there had been a significantrise in the number of finalised appeals inthe second half of 2012 as AppealsOfficers became more familiar with theprocess and she expected that on thisbasis more appeals would be concluded in2013.

Members of the Joint Oireachtas Sub-Committee on Social Protection were allfamiliar with social welfare appeals fromtheir constituency work and raised issuesaround processing times, independence ofthe office and inequality between theparties, as well as the lack of civil legal aidfor appeals.

FLAC welcomes the rise in the number oforal hearings, as they offer the appellantan opportunity to meet with an AppealsOfficer and present reasons why apayment should be granted; as borne outby the statistics, they once again provedto be more successful for the appellant.However, the majority of appeals werestill dealt with summarily. While the Chief

Appeals Officer is considering FLAC’srecommendation to include an ‘expressroute’ to request an oral hearing, weargue that the higher success rate clearlydemonstrates the benefit of holding ahearing where the appellant gets thechance to put forward his or her side ofthe case in person.

While we recognise the huge amount ofwork carried out by the Appeals Office,the 2012 figures only serve to emphasisethat more needs to be done. It mustensure that people are informed of theright to an oral hearing, as time and timeagain the statistics evidence a betteroutcome for the appellant. Processingtimes have improved because of betterworking models and the office must lookat other ways to improve efficiency andensure that fair procedures are followed.It is clear from these figures that theDepartment must improve decision-making at first instance to cut needlessappeals as well as reducing the delayscaused within the various paymentsections.


t Number of overall live appeals roseto 52,972 in 2012 from 51,515 in2011 marking a new record high.

t The number of appeals receivedrose by more than 4000 than thenumber received in 2011 but theAppeals Office finalised almost 1500fewer appeals in 2012.

t There was an increase in thenumber of oral hearings from 8821in 2011 to 9267 in 2012 marking anincrease of 5 per cent. In turn thesuccess rate at oral hearing rosefrom 48 per cent to 53 per cent ofall oral hearings resulting in apositive decision.

t Despite the increase in oralhearings, the majority of appeals in2012 were still decided summarily;

almost 60 per cent, or 13,730appeals, were decided on thewritten evidence only. Theseresulted in a lower success rate of31 per cent.

t In 2012, 7303 decisions wererevised by the original decision-maker compared to 6035 in 2011which represented a 5 per centincrease. In total 22 per cent offinalised decisions were revised by aDeciding Officer in favour of theappellant.

t The longest processing times inJanuary 2013 were in relation toappeals for Carer’s Allowance (46weeks), Invalidity Pension (40weeks), Illness Benefit (40 weeks)and Disability Allowance (38weeks).

2012 statistics at a glance




Central Bank announces arrears targetsMeaningful action or just good intentions?

In March 2013 we saw theannouncement of targets to beimposed upon Irish banks in the

latest attempt to tackle the country’slong running mortgage arrears crisis. Ata joint press conference, Minister forFinance Michael Noonan and Financialregulator Matthew elderfield unveiledthe Government’s updated strategy andacknowledged the distress that thesearrears are causing to many Irishfamilies.

Under the Mortgage Arrearsresolution Targets (MArT) publishedby the Central Bank, six Irish lendinginstitutions will now have performancetargets set in terms of offeringsustainable arrange ments withborrowers in mortgage arrears. Thesetargets will be monitored by theCentral Bank and failure to engage withborrowers in arrears and meet thetargets may result in additional capitalrequirements being imposed on thebanks by the Central Bank.

The new targets specify that sustainablemortgage solutions must have beenproposed by the banks to:

t 20% of those homeowners inarrears of 90 days or more bythe end of June 2013

t 30% of homeowners in arrearsof 90 days or more by the endof September 2013

t 50% of homeowners in arrearsof 90 days or more by the endof December 2013

These thresholds apply to mortgageson principal dwelling houses (that is,homes where the mortgage-holder isresident) and buy-to-let mortgagesfrom six main banks: ACC, AIB, Bank ofIreland, KBC, Permanent TSB andUlster Bank. However, sub-primelenders and local authorities are notinvolved in the new target arrange -ments.

The Central Bank has said that it alsointends to publish targets for theconclusion of these so-called sustain -

able solutions proposed by the lendersto borrowers. In addition to thesepublic targets, each of the banksmentioned will be subjected to internaltargets set out by the Central Bank onan individual basis.

It is clear that mortgage arrearsconstitute a worsening problem thatrequires a robust and durable solution.Over 94,000 (or 11.9%) of homes werein arrears of over 90 days as ofDecember 2012. The buy-to-let arrearsfigures were even worse, with over28,000 (18.9%) behind on payments forthree months or more. However, whileFLAC agrees with the Government’sassertion that the mortgage andpersonal debt crisis is one of the mostserious social and economic issuesfacing the country, we do not sharetheir optimism that the setting of thesetargets alone will resolve the problem.

As ever, the devil is in the detail of theCentral Bank’s plans. The definition ofwhat makes a ‘sustainable solution’, thefact that it will be for the banksthemselves to determine thesustainable solution offered to theborrower, and questions around theenforceability of the targets are ofparticular concern. It is also our viewthat all debts – not just mortgage debt –must be considered in any resolutionprocess.

equally, debtors must be guaranteed areasonable income standard whilepaying down debt.

Finally, it is worth noting that at thepress conference, Minister Noonanstressed that people in talks with theirbanks need support and advice ‘to evenup the exchange’. He also referenced anew scheme offering free consultationswith accountants to people in arrears,to be paid for by banks. However, whatwas not made clear is that a person willonly be able to seek a one-offconsultation on the deal offered by thebank after it is made, not during thenegotiations. Moreover, the accountantwill only explain the terms of the dealon offer, not advise or give an opinionon whether it is a good or a bad deal,and will not re-negotiate with the bankwhere necessary – except where theperson separately pays him or her todo so.

The bottom line is that the currentinfrastructure for supporting people indebt is entirely inadequate. More thanever, it is crucial that people in debt areprovided with the full range of moneyadvice, financial and legal supports fromthe outset to ‘even up the exchange’and help them navigate through theseprocesses to a real, practical andsustainable solution, not one thatmerely serves the interests of financialinstitutions and the financial system.


FLAC is seeking solicitors and barristerswho are qualified to practice in Ireland tovolunteer as advisors in our legal advicecentres.

Volunteer advisors are asked to committo dedicating two hours of their time permonth providing legal information andadvice to members of the publicotherwise unable to access such help. Thecentres are chiefly open in the evenings.FLAC provides information resources andother supports to our volunteers.

Centres needing new volunteers atthe moment include: Listowel, Killarney& Tralee in County Kerry; Arklow,Wicklow & Blessington in CountyWicklow; Dundalk in County Louth; andLetterkenny in County Donegal. We arealso recruiting in the Dublin area for ourcentres in Clondalkin, Lucan & Tallaght.

If you are interested in using your skillsand time to become a FLAC volunteer orif you have any questions aboutvolunteering with FLAC, please get intouch with Zsé Varga, Volunteer &Centres Manager, by e-mail [email protected] or by phone at 01-8873600.


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Steep rise in housing-related queries to FLAC

L-R: Michaela Benassi, Development Manager, Blanchardstown, Dublin 15 CIC, Zsé Varga, FLACVolunteer & Centres Manager, and Anne McCloskey, Development Manager, Dublin 12 & 6W

CIS at the opening of Tallaght Citizens Information Centre on 22 March.

Towards the end of 2012 and inearly 2013, FLAC has witnessed a200% increase in the number of

housing/landlord and tenant queries toour telephone information and referralline. Housing-related queries now accountfor 9% of all calls to FLAC's informationline. Housing questions make up 6% of allqueries in FLAC legal advice centres.

Housing queries to FLAC cover a broadrange of related topics, including landlordand tenant issues, problems withmanagement companies, rent issues, localauthority housing problems andcommercial housing queries.

Within this ‘housing’ heading, landlordand tenant queries to FLAC’s telephoneinformation line in early 2013 have risenby 333% compared with the first twomonths of 2012. They have remained atroughly 60% of all housing-related queriesin the legal advice centres.

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150

225

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Jan & Feb 2012 Jan & Feb 2013

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All HousingLandlord & Tenant

Housing / Landlord & Tenant Queries Jan-Feb2012 & 2013

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Opening of Tallaght CIC

Volunteer lawyers needed for advice centres!




UN Special Rapporteur on human

UN Special rapporteur onHuman rights DefendersMargaret Sekaggya visited

Ireland in November 2012. It was thefirst visit by this UN expert mandate toan eU country. She reported on theresults of her trip to the UN’s Humanrights Council on 4 March 2013.

Ms Sekaggya’s report is an overview ofhow Ireland is performing in itsprotection of human rights defenders athome. Ireland has assumed a leadingrole in initiatives promoting humanrights defenders internationally formany years, a point emphasised by MsSekaggya. This review was anopportunity to examine thegovernment’s protection of humanrights defenders at home. The timingwas significant too, coming duringIreland’s presidency of the europeanUnion but also during the first regularmeeting of the Human rights Councilsince Ireland was elected to a 3-yearmembership of the body in November2012.

Overall, Ms Sekaggya found that "[t]heenvironment in which defendersoperate in Ireland generally facilitatesthe defence and promotion of humanrights and fundamental freedoms."Balanced against that, her scrutiny foundsome significant gaps in protection inIreland’s laws and structures and also inthe situation of certain specific groupsof defenders.

In the course of her report, she notedthat the term ‘human rights defender’was not well understood or promotedhere, even by public officials. Humanrights law and in particular, the UN’sDeclaration on Human rightsDefenders adopted in 1998, recognisesthe right of everyone, individually or inassociation with others, to promote andstrive for the protection and realisationof human rights. Those who do suchwork are known as human rightsdefenders.

Front Line Defenders, the Irish-basedinternational foundation which worksfor the protection of human rightsdefenders, speaks of "people who,

individually or collectively, workpeacefully on behalf of others topromote and defend internationallyrecognised human rights. They aredefined by their actions rather than bytheir profession, job title ororganization."

Herself a Ugandan lawyer andmagistrate and a former chairperson ofthe national human rights commission,Ms Sekaggya examined Ireland’s legaland structural framework and also thespecial challenges facing some groups ofdefenders.

Looking at Ireland’s legal framework,she echoed concerns of otherinternational observers thatinternational human rights treaties arenot directly applied in domestic law andthat there is a lack of any otheraccountability mechanism. This, shebelieves, may hinder Ireland’sobligations under international humanrights law. Nonetheless, she urgedIreland – particularly in light of itsHuman rights Council membership - tosign and ratify outstanding treaties toprotect the rights of children, personswith disabilities and migrants, amongothers.

She also looked at national lawsprotecting the fundamental rights offreedom of opinion and expression andfreedom of assembly. As the currentoffence of ‘blasphemy’ may lead to self-

censorship amongst defenders, she waspleased that the ConstitutionalConvention was examining whether thisoffence should be removed from theconstitution, which would thenhopefully facilitate its removal from theDefamation Act 2009.

In addition, by refusing to recognise thepromotion of human rights as acharitable purpose, the Charities Act2009 excludes human rights defendersfrom the protections of charitablestatus – a matter of concern for theSpecial rapporteur.

At executive level, Ms Sekaggya praisedan initiative of the Department ofForeign Affairs & Trade where regularmeetings take place with an NGOstanding committee. This provides aformal framework for exchange ofviews between the executive andNGOs, including human rightsdefenders. By contrast, she isdisappointed that the framework forthe proposed Human rights andequality Commission contains no similarprovision, given the importance ofinteraction between the Commissionand civil society actors, includingdefenders.

Some institutions which are specificallydesigned to protect human rights cameunder scrutiny in relation to theirindependence and accountability. Thereport raises concerns about provisions

FLAC interns and staff with UN Special Rapporteur Margaret Sekaggya and her assistantDolores Infante Canibano on her country visit to Ireland in November 2012



7F L A C N E W S l J A N U A R Y - M A R C H 2 0 1 3

rights defenders reports on Irelandwhich require approval from theDepartment of Justice and equalitybefore the Garda Siochána OmbudsmanCommission can open investigationsinto police policies and procedures.Similarly, she questions the ‘strong links’proposed for the Human rights andequality Commission with theDepartment of Justice and equality. Sheunderlined the importance of anautonomous and independentCommission for the protection ofhuman rights in the State.

The rapporteur notes with approvalthe recent establishment of the InterimJudicial Council – seen as a preliminarystep to the creation of a statutorymechanism which would permit filing ofcomplaints against judges. There is aneed for effective complaintsmechanisms particularly to ensure thathuman rights defenders can go abouttheir work safely. On this principle, theabsence of an effective complaintsmechanism for those in detention was aconcern.

She singled out certain groups ofdefenders facing particular challenges, in

areas such as environmental rights,sexual and reproductive rights,Travellers rights, asylum seeker andrefugee rights, as well as whistle-blowers. Her recommendations hereinclude engaging with and ack nowled -ging the work of defenders; imple -menting legislation relating to legalabortion and for the protection ofwhistle-blowers; and investigating andprotecting defenders from intimidationand harassment where they occur, sothat they can claim the rights of theircommunities unhindered.

She also pointed to other challenges,including the ‘chill factor’ caused by theprohibitive costs of litigation. Here thereport recommends that the LegalServices Bill 2011 include provision forprotective costs orders in publicinterest cases.

As Ms Sekaggya says in her conclusions,the report's findings and recom -mendations are made “in a spirit ofconstructive dialogue with theauthorities and the other stakeholdersinvolved”, as part of the review and

maintenance of international humanrights standards. The work of humanrights defenders is important foreveryone in society and it is in our owninterest as well as theirs that they andtheir work be well protected. Thisreport offers expert and thoughtfulrecommendations as to how that can bedone.

Awoman who had to flee anabusive relationship with herhusband has been paid a

substantial sum in arrears of ChildBenefit following a review requested byFLAC. Sarah (no t her real name) is anon-eU citizen who was married to aneU national who had come here as aneU worker. She joined him here aftersome time.

The relationship was abusive and Sarahhad to leave her husband not long aftershe arrived. She had one daughteralready and was pregnant when she left.Her son was born some months later.

Sarah’s right to reside in Ireland wasderived from her husband’s status andthe Irish Naturalisation and ImmigrationService (INIS) refused to renew herresidence card and the Department ofSocial and Family Affairs then refused topay her Child Benefit.

The Immigrant Council of Irelandrepresented Sarah in connection withher residency status and eventually INISaccepted that she was entitled toremain in the State despite beingseparated from her husband.

FLAC was dealing with her socialwelfare situation and appealed therefusal of Child Benefit but the appealwas rejected because of the INIS refusalto renew her residency.

When INIS changed its position somemonths ago, FLAC sought a review ofthe Appeals Officer’s decision by aDeciding Officer because of the changein circumstances. The Deciding Officeraccepted that the residency decisionshould be backdated to when Sarah firstarrived in the State at the end of 2007.She also noted that Child Benefit is a‘Family Benefit’ under eU regulationsand such benefits are exempted from

the Habitual residence Conditionwhere the claimant is an eU worker orthe spouse of an eU worker.

The Deciding Officer stated that:

As Mr [...] was an eU migrant workerin December 2007 and Ms [Sarah’s]status as his spouse has now beenrecognised, the provisions of eU lawoverride national legislation and theHabitual residence Condition does notapply to this claim”.

The Deciding Officer noted that thiswas the position when Sarah had firstapplied for Child Benefit and so she hadbeen entitled to receive it. In additionthere were no provisions to review herstatus because she was no longer co-habiting with her eU national husband,so she should have been in receipt ofChild Benefit all along and was nowentitled to payment of the full amount.

Woman who fled abusive relationship gets Child Benefit arrears

Notes:

The report acknowledges the support of

Front Line Defenders and FLAC to the

Special rapporteur during her visit.

You can learn more about Front Line

Defenders at www.frontlinedefenders.org

FLAC is a member of the Department of

Foreign Affairs and Trade NGO standing

Committee.

report of the Special rapporteur on the

situation of human rights defenders:

http://www.ohchr.org/Documents/HrBodie

s/HrCouncil/regularSession/Session22/A-

HrC-22-47-Add-3_en.pdf


8 F L A C N E W S l J A N U A R Y - M A R C H 2 0 1 3


A new legal dawn for insolvent debtors, but more support needed

a Personal Insolvency Bill when it waspublished in January 2012. This sketch ofthe future Bill was very detailed. Itrevealed a debt settlement approachbased on four categories, from smallerunsecured debts to full bankruptcy. Thefirst three stages would require a newInsolvency Service under courtsupervision as well as an overhaul ofexisting bankruptcy law.

Giving it a cautious welcome, FLAChighlighted some serious lacunae in theproposal. These included the lack ofinformation around the appointment ofintermediaries who will make debtsettlement proposals on behalf of debtors.We also raised the Bill’s failure to provideindependent oversight on debtsettlements, leaving banks with aneffective veto. FLAC highlighted the needfor clear guidelines around minimumincome for people making debt deals. Oursubmission and presentation to the JointOireachtas Committee on Justice inFebruary was included in its report on thedraft scheme.

After much delay, the actual Bill emergedin June and was given a little debate beforethe summer recess in mid-July 2012. InSeptember, FLAC appeared before theJoint Oireachtas Committee on Justice,equality and Defence to voice renewedconcerns around the outstanding issues inthe Bill. Some remained from our earliersubmission. However we highlighted theBill’s inadequate provision for independentmoney and legal advice and supports forinsolvent debtors as well as the lack ofclarity around the appointment ofinsolvency practitioners in the scheme.FLAC feared that if the Bill was notamended, it would produce a bank-led andbank-oriented system that retained majorgaps and pitfalls with only a promise ofreview if things don’t run smoothly.

FLAC made a follow-up presentation toDáil and Seanad representatives and theirassistants at Leinster House in Novemberoutlining these concerns.

The new law is widely acknowledged bylegislators as one of the most important inour history. FLAC was thus dismayed atthe lack of space for debate given to it inthe Oireachtas. Despite reservationsvoiced by FLAC and others, the Bill was

rushed through both Houses. It wassigned into law by President Higgins at theend of December 2012.

While a few provisions have been enactedin the intervening period, as of the time ofwriting (March 2013) the PersonalInsolvency Act 2012 remains as yet largelyon the shelf.

FLAC was glad to have contributed to thethinking around the draft legislation – inparticular, with a conference in April 2012where people skilled in economics, law,comparative insolvency legislation andconsumer supports in various jurisdictionswere able to present and debate ideas andsystems. We hope that this had aformative influence on what is a relativelyinnovative piece of law, at least in thecontext of english-speaking countries.

While in FLAC’s view the new law couldhave been stronger in terms ofprotections for insolvent debtors, on apositive note, it was very heartening tosee that it includes minimum incomeguidelines, as we had recommendedthroughout our campaign. These shouldensure that people doing deals with theircreditors are left with enough to live indignity, and are based on the ground-breaking work of the VincentianPartnership (see www.misc.ie for more).

A wider debt strategy?

It is worth mentioning that the personalinsolvency law is one part of an overallgovernment strategy on debt. ThisGovernment Action Plan on Debt wasunveiled in June 2012, complete with itsown cabinet sub-committee. The otherplanks of this programme are theMortgage Arrears Information & AdviceService, a mortgage-to-rent scheme, and aMortgage Arrears resolution Strategy toensure banks make more efforts to dealwith a debtor’s arrears before resorting tothe Insolvency legislation (see page 4 foran update on this issue).

On the information and support front,Minister Joan Burton has promoted a newadvice scheme involving some 2000accountants. Here people can have aconsultation worth up to €250, paid for bythe lender, on the long-term mortgagerestructuring deal their bank is proposing

to them. However, FLAC believes thisscheme will not meet the needs of peoplefor support and information throughoutthe entire process of dealing with theirdebt. It comes only after the bank’s offerhas been finalised and made, not beforeor during negotiations. This is particularlythe case where people have multipledebts. All of a person’s debts have to betaken into account if he or she is to reacha truly sustainable solution. Consistentsupports may also reduce the stress andanxiety that is causing major healthproblems for over-indebted people, andwhich is likely to have a long-lasting andtoxic legacy for the population.

Many thanks are due to the Money Adviceand Budgeting Service, which has been alife-saver for many thousands of peopleover its more than 20 years of operation.Other organisations and individuals toonumerous to mention have worked hardto highlight the issues around over -indebt -ed ness in general and mortgage arrears inparticular, and they are also deserving ofmuch gratitude.

In the absence of an operationalinsolvency system and for those who arenot in an insolvency position, the CentralBank’s Code of Conduct on MortgageArrears is a crucial document. While it iscurrently under review, it governs howbanks must deal with customers in arrearson their family homes. FLAC will bemaking recommendations to strengthenthe hand of borrowers in this keymechanism, including that it be madelegally binding.

Over-indebted people undeniably nowhave a legislative framework on which tostart building a new future and possiblyfind a way out of their debt. But while thenew law is a considerable step forward, itis not the end of the story. FLAC willcontinue to monitordevelopments and tocampaign for a fair,independent and sustainabledebt resolution process forall people in Ireland.

[continued from front page]

FLAC has published a number oflegal information leaflets, including aguide to the Code of Conduct onMortgage Arrears. These areavailable to download from

www.flac.ie




To mark Human rights Week inDecember 2012, FLAC created apop-up website dedicated to

gathering and publicising details of thevarious human rights events taking placearound the country in a dedicated space.

UN Human rights Day takes place everyyear on 10 December – the date on whichthe Universal Declaration of Humanrights was adopted. Apart from thisimportant anniversary, it also offersactivists around the world a chance tocelebrate their human rights work. SoHuman rights Day has inspired anunofficial ‘Human rights Week’ and FLACfelt a comprehensive list of all the week’sevents would be a useful resource.

With the cooperation of several IrishNGOs and voluntary groups, FLACcompiled a calendar of ongoing campaigns,one-off events, seminars and other humanrights-oriented activities available atwww.humanrightsweek.com and withdaily updates under the Twitter hashtag#hrweek2012.

Despite the short time scale, the websiteproved very popular, which only serves tohighlight how vibrant the Irish humanrights community is. The United Nation’stheme for Human rights Day 2012 was‘My Voice Counts’ and it drew attentionto the millions of people all over the worldwhose voices are seldom heard within thepolitical process. In a year of widespread

unrest and popular uprisings, the themewas particularly apt.

Some of the week’s highlights includedFront Line’s ‘Voices From the Front Line’concert at Vicar Street; President MichaelD. Higgins speech at the IHrC humanrights lecture; a blog carnival hosted bythe Human Rights in Ireland blog site andFLAC’s own Dave ellis annual lecture,delivered by long-standing human rightsactivist, Thomas Hammarberg. Manythanks to all who took part! Hope to seeeven more actions in December 2013.

Making our voice count withhuman rights pop-up site

Every so often, the debate aboutaccess to free or subsidised legalaid emerges in political debate.

Often, the starting point is a question as towhy someone on a criminal charge shouldget state funding for the defence ofproceedings. While the debate willgenerally also recognise the crucial rolethat legal representation plays in ensuringthat a person has a fair trial, there is notalways a discussion of the principlesunderlying the provision of legal advice andassistance. Although there is clear law onthe right to criminal legal aid in Ireland, thestandards could not previously be tied towider international standards on this topic.

However, that has now changed. Since theUN’s General Assembly adopted them on20 December 2012, there is now aninternationally accepted set of principlesaccepted by the nations of the world onthe right to legal aid in the criminal justicesystem. The document adopted on thatday, the United Nations Principles andGuidelines on Access to Legal Aid inCriminal Justice Systems, is the world’sfirst instrument exclusively dedicated toaccess to legal aid. It roots itself in theUniversal Declaration of Human rights,which “enshrines the key principles ofequality before the law and thepresumption of innocence, as well as theright to a fair and public hearing by an

independent and impartial tribunal…” andthen goes on to outline a set of keyprinciples, together with guidelines fortheir implementation.

Bearing in mind that the document has toserve widely divergent legal systems, theguidelines give ample room for variedimplementation, but the underlyingprinciples should be ones on which allthose engaged in developing debate orpolicy on legal aid may agree.

In its preamble and in its first principle, theUN-approved document recognises thatlegal aid is an essential element of a fair,humane and functioning criminal justicesystem based on the rule of law. Legal aidis also seen by the internationalcommunity as a foundation for theenjoyment of other rights, including theright to a fair trial. Access to legal aid is aprecondition to exercising other rightsand an important safeguard that ensuresfundamental fairness and public trust inthe criminal justice process.

The declaration points to the need for acomprehensive legal aid system that isaccessible and effective and that is equallyavailable to all without discrimination. Itsets out special safeguards that states needto consider to protect the rights of peoplein detention, children and women. Itreminds states of the need to ensure legal

aid for victims and for witnesses whereappropriate. It also stresses the need forhigh quality representation and advice andsanctions against those who fail to meetthose standards.

The UN Principles and Guidelines alsorecognise the principle of the right of aperson to be informed of his or her rightto legal aid and other proceduralsafeguards. This right exists prior to anyquestioning and at the time of deprivationof liberty. This right to information incriminal proceedings has also been raisedwithin the european Union, with adirective published in April 2012. The eUis currently discussing a further directiveon the general right to legal aid with adraft promised in late 2013.

Being a pragmatic document debated by thegovernments of the world, there is aspecific guideline on funding whichrecognises that the benefits of legal aidinclude cost savings throughout thecriminal justice system. elsewhere, thisinstrument notes the public and societalbenefit in ensuring fundamental fairness andpublic trust in the criminal justice system.

You can download the principlesdocument at http://bit.ly/YHAAdi

UN issuesnewPrinciples& Guidelines on Access to Legal Aid



Lydia Foy: My Story


The following text is an extract from theTransgender Equality Network’s latestpublication, ‘Equality & Identity’, launched inMarch - see www.teni.ie and our report onpage 14. We are grateful to Lydia and to TENIfor permission to reproduce it here.

It’s been a long road. When thisstarted – decades ago, now – I wascompletely alone. People didn’t want

to know. They didn’t want to considerthat this – people like me – happened inIreland. I encountered little understandingand no tolerance. I had one door afteranother closed in my face. even those whosympathised with my case felt they coulddo nothing to help – they certainlycouldn’t support me in public.

I was seen as a threat to society, told thatI was going to turn Ireland into a lunaticasylum. And I was alone: I hadn’t the priceof a stamped addressed envelope and Iwas expected to take on the AttorneyGeneral and the Irish State – take on thewhole lot myself.

I was fair game. My home and car werevandalised. The media were nasty, writingabout my case in the language of ‘castratedmales’ and ‘sexual deviancy’. I felt treatedlike a dog in court. I wanted what anycitizen should be entitled to: the right toreply; the right to be heard; a birthcertificate that shows my true gender.

The process was barbaric. I faced manylosses – my home, my family, my job, myprivacy, my dignity. After all that, my backwas to the wall. I had nothing else to lose.I had no choice but to fight.

People sometimes say to me: “You’reeither very brave or very stupid”. I wasn’tparticularly brave. Many’s the time, Iwondered if I would be able to carry on. Ireached depths of depression: I washeartbroken and isolated. One day I col-lapsed. I thought I was dead, but I felt cold,and I realised I couldn’t be cold if I wasdead. And so I went on: afraid to live andafraid to die.

There are amazingly good people in FLAC.And they listened. They might ask me hardquestions, but at least they’d wait for meto reply.

Sometimes, things about my case spreadto the evening news before I even heardabout them. I feel I can’t win with themedia: if I keep my head down it’s becauseI’m a criminal; if I hold my head up then I’mpublicity-seeking and out for money. And Ihave no right to reply.

I might not have been brave, but I wasn’tvery stupid either. I studied up on law,

journalism, medicine, computers – what Ineeded to engage on an equal footing. AndI didn’t give up.

Whatever happens, my privacy has beenabsolutely violated. Destroyed. And it willbe, indefinitely. What I have lost will stay

lost. But I’m still going to battle on foreveryone else. It’s not going to be as badfor the next generations in Ireland.

I suppose that sounds like I’m a martyr,but I’m not. It’s just that no matter what Iget now, it won’t make up for the loss.

L-R: Maria Victory, Dr Lydia Foy and Michael Farrell pictured at FLAC's offices

Twenty years after she first applied for anew birth certificate showing her femalegender, Dr Lydia Foy has had to go back tocourt. Despite a High Court ruling over fiveyears ago that her rights under theeuropean Convention on Human rightshad been violated by the failure torecognise her gender identity, Dr Foy hasstill not received that birth certificate.

The current and previous administrationsboth pledged to legislate to recognise transpersons in their lived-in gender. TheMinister for Social Protection said thisgovernment would make it a priority. Butwhen there was still no sign of even draftlegislation by January 2013, Dr Foy andFLAC, which has represented herthroughout her legal battle, reluctantlyconcluded she would have to go back tothe High Court to try to enforce thedecision given in her favour in October2007.

As part of that decision, the Court alsoissued the first-ever declaration that Irishlaw was incompatible with the Humanrights Convention as it made no provisionfor legal recognition of transgenderpersons. This was a key provision of theeuropean Convention on Human rights(eCHr) Act 2003, which was brought in toenable people to obtain their rights underthe Convention without the long delaysinvolved in taking a case to the europeanCourt of Human rights in Strasbourg.

The idea was that when a court issued adeclaration of incompatibility, thegovernment would move promptly tochange the law.

The lack of any action on this issue has beena major blow to Dr Foy, who thought her20-year struggle was finally ending, and toall the other trans people in Ireland whosehopes had been raised when Dr Foy wonher case in 2007. And it also shows verylittle respect by the government for thejudgment of the High Court, or for theState’s commitments under the eCHr.

Lydia Foy’s new legal action asks the HighCourt to order the government to makeprovision for issuing her with a new birthcertificate; to rule that her right to aneffective remedy under the eCHr and theIrish Constitution have been violated;and/or to declare that the eCHr Act, 2003is ineffective and is itself incompatible withthe eCHr.

If it has to go to trial, this case will be amajor test of the State’s human rightslegislation and the Government’scommitment to the eCHr. All this could beavoided if the Government would simplyact on its pledge to introduce Genderrecognition legislation now.

Legal recognition of trans persons would bea key step towards combating theignorance and intolerance that fosters theirabuse.

Lydia Foy goes back to court




Maeve is a solicitor, lecturer andauthor specialising in employ -ment and equality law. She

joined the PILA team as Legal Officer in2011. Maeve trained with Arthur CoxSolicitors in Dublin and after qualifyingworked with the firm’s employment LawGroup. On secondment from Arthur Cox,Maeve worked with Herbert Smith,London and in the international legaldepartment of Schering-Plough in NewJersey. On the NGO side, Maeve workedon a forced labour issue for MrCI,alongside barrister Claire Bruton.

She is course tutor on the Law Society’sDiploma in employment Law. Maeve isalso the editor and co-author ofEmplo yment Law (Bloomsbury Pro fes -sion al, 2009), which she co-authored with22 leading employment, pension and taxlawyers. In 2011, Maeve worked as asolicitor with Northside Community LawCentre, advising the North Dublincommunity on employment and equalitylaw and social welfare law.

On why she felt drawn to PILA, Maeve says“Through my work and contact with PILA,I had an insight into how well-organised anddynamic the organisation is. I am also goodfriends with my predecessor Jo Kenny,who with Lianne Murphy, was instrumentalin establishing PILA.”

Maeve had previously encountered theconcept of public interest law and pro bonowork in her career. “While working inHerbert Smith, my supervising solicitor,

Joanne Cross, did a considerable amountof pro bo no public interest law work. Ihugely admire Joanne for the balance sheachieved in her work. Yet I found when Iworked in a corporate firm here, thatthere wasn’t a structured pro bono schemein Ireland. At the same time, there is aclear desire on the part of Irish lawyers todo this kind of work. PILA broke newground in establishing a way to do this andhas changed the legal landscape. When theopportunity arose to work with PILA, andcontinue this, I jumped at it!”

As Legal Officer, Maeve is responsible forliaising with lawyers and law firms thatwork with PILA, developing the register ofsuch lawyers, making legal advice referralsto the lawyers, convening working groups

and organising events and seminars. Asshe says, “PILA is very much a team. Iwork closely with Lianne Murphy, ProjectOfficer, and Kim Watts, Legal Informationand Communications Officer.” She alsocontributes to PILA’s regular electronicnewsletter of developments and news inpublic interest law, the PILA Bulletin.

Maeve is enthusiastic about her work inPILA, commenting that “It is so hearteningto meet and work with so many lawyerswho want to do public interest work probono, and who do it with such enthusiasmand to such high standards.” equally, sheenjoys contact with the many organisa -tions who have used PILA’s services toaccess legal expertise and information. “Ithas been wonderful too to meet with theNGOs that we work with and get aninsight into the real issues that they areworking on. Working with the PILA teamis really energising and inspiring as wework to develop the project!” she says.

As for the future, Maeve is hopeful thatpro bono legal work becomes a completelynormal part of the work of lawyers in thisjurisdiction. “More and more, we areseeing that lawyers recognise that theyhave unique and valuable skills, that thosemost in need of them can often not affordor access them and that throughorganisations such as PILA they can sharethose skills pro bono,” she says.

You can read more about PILA’s work atwww.pila.ie – the Bulletin is free tosubscribers by e-mail, log on and sign up!

Maeve Regan, PILA Legal OfficerF O C U S O N F L A C :

On meeting Lydia Foyby Maria Victory

Maria V icto ry is a Legal Intern w ith FLA C . A s w ell as w o rking o n o ur telepho ne info rmatio n & referral line, Maria assists FLA C ’s Senio r So licito r Michael Farrell o n casew o rk.

Iremember reading about the Lydia Foycase in college as a landmark piece oflitigation in public interest law. I am

now working on the case with MichaelFarrell in FLAC and I have had the privilegeof meeting this remarkable woman. LydiaFoy is a fascinating, extremely intelligentindividual who despite her inhumanetreatment has managed to retain aninfectious sense of humour.

I think what society and perhaps especially

the media tend to forget is the humanbeing behind this case. This is a personwho has weathered a highly adversarialcourt system and felt the ‘fangs’ of themedia for twenty years.

Her life has been – and still is – subject tothe scrutiny of the courts and ofjournalists. But we should remem ber thatLydia Foy did not want this attention; allshe wants is to be legally recognised as awoman.

It’s remarkable to think that what standsout for Lydia in twenty years of litigation isthe rough treatment she has endured atthe hands of the courts. No one wouldlisten to her; society wanted her to haveno voice,’ to be locked away’. FLAC gaveher a voice and for the first time someonelistened.

I am truly honoured to have worked withLydia Foy and I will remember myexperience in FLAC forever.



A n interview w ith o ne o f the vo lunteerlaw yers w ho have signed up to PILA ’s ProBo no Referral Scheme.

How did you find out about the PILAPro Bono Referral Scheme?

I have volunteered with FLAC since Istarted practicing at the Bar. I becameaware of PILA and the referral Servicethrough my work with FLAC and wasimmediately interested in becominginvolved, so I e-mailed PILA to register myinterest in being included on the register.

What was your experience of dealingwith the scheme?

The scheme is very professionally run andeasy to deal with. referrals are firstadvertised in a group e-mail, containinggeneral information about the organisationand their legal query. If the volunteer isinterested and feels that they can provideadvice, the next step is to contact PILA formore information. When the volunteeragrees to take on a referral, a meeting isset up between the organisation seekingassistance and the lawyers in the group.The meeting allows volunteers to establishthe exact requirements of the requestingorganisation and divide up the workinvolved. PILA is available to answerqueries for the volunteer at any stage ofthe process and provides an effectiveintermediary between the working groupand organisation.

What were the most challengingaspects of referrals that you havetaken on?

I have been involved in a number ofreferrals through PILA, mainly involvingareas of law with which I would be veryfamiliar, such as employment law andfamily law. referrals may contain issuesconcerning the interaction of law andpublic policy and require a comparativeanalysis between legal provisions in Irelandand abroad. The challenge in each of thereferrals in which I have taken part hasoften been to source reliable informationconcerning the law in foreign jurisdictions.

How did the experience benefit oraffect your regular work?

It has allowed me to gain experience inresearching legal provisions in otherjurisdictions and in comparing them withequivalent provisions in Ireland. It isvaluable as a practitioner to have a goodoverall knowledge of the public policyimplications of legal rules and systems.

Would you do more pro bono worklike this?

I enjoyed the experience of working withPILA. It gave me an insight into how lawreform is researched, proposed andadvocated by interested parties andNGOs. The process is well managed byPILA. They make great efforts to ensurethat volunteers are given the time andflexibility needed to complete the work foreach project while at the same timerunning their own practices. So, I do intendto take on more pro bo no work.

Would you recommend doing probono work through PILA’s referralscheme to other barristers?

I would recommend it. The experience ofbeing involved in a research project or aproposal for law reform gives thevolunteer a much more in-depth androunded understanding of the law inIreland and elsewhere. I think that this canonly be positive for a practitioner’sknowledge of the law and ability to advisein particular cases.

Lawyers are in a privileged position in thatthey have expert knowledge of the law andtraining in research. Access to legal adviceshould not be the preserve of the wealthy.I believe it is important that lawyersassume a responsibility to wider society tomake their expertise available to thosewith limited access to the legal system. ThePILA referral Scheme provides the perfectopportunity for barristers and solicitors togive some of their time and expertise inaddressing an unmet legal need, while atthe same time hopefully improving theirown knowledge of the law.

PUBLIC INTEREST LAW ALLIANCEU P D A T E

Focus on PILA Register lawyers:Michael Kinsley BL

Clinical Legal Educationconference to take place inGalwayThe School of Law at NUI Galway, inconjunction with PILA, will host aconference entitled ‘Developing ClinicalLegal Education in Ireland’ on 26-27 April2013. The conference will launch the newly-formed Irish Clinical Legal EducationAssociation (ICLEA). ICLEA seeks toenhance and expand clinical legaleducation programmes in law schools inIreland by providing a forum to shareexperiences and foster collaboration; bylobbying collectively for necessaryresources; and by ensuring optimuminternational engagement with clinical legaleducators in other jurisdictions.Taking place on the NUIG campus, theevent aims to bring together practitioners,academics, clinical partners and students toexplore the emergence and assess thefuture potential of clinical legal education inIreland.Keynote speaker will be KevinKerrigan, Executive Dean of the Faculty ofBusiness and Law at NorthumbriaUniversity. A National Teaching Fellow ofthe Higher Education Academy since 2010,he is also a practising solicitor and HumanRights Act consultant with experience ofconducting criminal and human rightscases.

Registration for the conference is free.There will be an optional conference dinneron NUI Galway campus on Friday eveningwhich will cost €20.

For further information & registration seehttp://conference.ie/Conferences/ind ex.asp?Conference=217.





On 7 February, PILA held apractitioner seminar on Usingthe C har ter o f Fundamental

Rights o f the EU – fr o m theo r y topractice. There was great interest in thisseminar, with over 180 people attending.The speakers were Jonathan CooperOBe, a barrister with Doughty StreetChambers, the leading human rightsChambers in Britain, and Dr SuzanneKingston, Lecturer in Law at UniversityCollege Dublin and a practicing barrister.Jonathan has particular expertise in humanrights law and the Charter while Suzannehas published widely on eU law issues,including eU human rights law. Theseminar was chaired by Michael Farrell,FLAC Senior Solicitor. The two guestspeakers discussed how the Charter couldbe used in public interest litigation and inother ways and the practical obstacles thatthere may be in doing so.

Jonathan Cooper, in a lively and detailedpresentation, explained that following theLisbon Treaty, the Charter was giveneffect by being given the same legal valueas the eU Treaties. He gave a veryinteresting outline of how the Charterwas negotiated and agreed upon and thedetail of the rights actually contained inthe Charter. Jonathan gave an excellent,user-friendly summary of “The Applica tionof the Charter in 10 easy Steps”,emphasising that the Charter only applieswhere eU law is implemented. Heconcluded with summaries of key casesthat have come before the europeanUnion’s Court of Justice and the englishcourts in relation to the Charter.

Suzanne Kingston then gave a compellingand deeply layered overview of how the

Charter fits into the Irish legal framework,what difference it makes to the law here,and the use of the Charter to date beforethe eU Court of Justice, the europeanCourt of Human rights and before theIrish courts. Suzanne also considered thepotential of the Charter in Ireland towiden the scope of workers’ rights, and togive greater force, weight, visibility andclarity to rights. Suzanne made clear thatone of the limitations on the impact of theCharter is that the Charter only applieswhere the Member State is acting withinthe scope of eU law. Suzanne concludedwith practical points on using the Charter,including the advice that lawyers shouldnot be afraid to ask for a preliminaryreference in relation to the application ofthe Charter.

The Charter is a blind-spot for manylawyers. Jonathan and Suzanne’s clear andcompelling presentations, into which theyhad distilled complicated and widematerial, shone a bright light on theCharter for all those who attended. Thankyou to Jonathan and Suzanne for this! PILA

also thanks Michael, who advised on theestablishment of the seminar and whoprovided practical and useful questionsand points at key points in the seminar.And of course many thanks to everyonewho attended!

Charter of Fundamental Rights seminar

Legal education forNGOs through PILA

Through its pro bono referral schemePILA organises legal education sessionsfor NGOs that are delivered by lawyerssigned up to the PILA register. In January2013, barrister Kevin Baneham delivereda session on the Habitual residenceCondition and the social welfare appeals.Kevin dealt with a range of issues withinthis topic, including social welfarecontributory payments, the kind ofpayments eeA migrant workers canreceive, the application of the HrC andsocial welfare appeals. Almost 30 peoplefrom 14 different NGOs attended thesession and the feedback was excellent.The presentation is available on the PILAwebsite, as are other recent pre senta -tions on topics like landlord and tenantlaw (again delivered by Kevin Baneham)and health & safety law (by Alan robertsand Deirdre St John from A&LGoodbody).

The presentations and materialsfrom the seminar are available

now at:http://www.pila.ie/events/archive/pila-practitioner-seminar-using-the-charter-of-fundamental-rights-of-the-eu-from-theory-to-practice/

L-R: Dr Suzanne Kingston, Michael Farrell and Jonathan Cooper, at the Fundamental Rights seminar

We are an independent non-governmental organisation and we providelegal information and advice to thousands of people free of chargeeach year. But to deliver on our mission of promoting access to justicefor all, FLAC has to seek funding each year through donations from thepublic, grants from statutory bodies and foundations, and contributionsfrom the legal professions.

FLAC works hard to ensure that all funding is put to best possible andmost efficient use. If you would like to help us promote equal accessto justice for all people in Ireland, please visit our website or e-mail usat [email protected] for more information. Thank you!

Help us make a difference




Firstly, Lydia Foy has asked me toconvey her best wishes for thelaunch of “equality and Identity”.

She is unable to be here but she haswritten an article for the book which givessome idea of the pain and stress she hassuffered during her landmark legal case –and that is a perspective you do not alwaysthink about when you hear aboutimportant and ground-breaking legal cases– the price people have to pay in order totake such cases in terms of the invasion oftheir privacy and exposing themselves toabuse and worse.

I would also like to pay tribute to TeNIand in particular to Dr Orlaith O’Sullivanfor her remarkable achievement inorganising the production of this veryimpressive book in a little over twomonths. I don’t know how she did it, butthe result is a very moving documentwhich brings home to those of us who donot have to suffer it ourselves, the crueland frightening abuse to which many transpeople are subjected and the need foreducation in tolerance and respect fordifference. And a key part of that is officialrecognition of trans people in their trueand lived-in gender.

It is 20 years this month since Lydia Foyfirst applied for a new birth certificate inher female gender. And it will be 16 yearsnext month since she began legalproceedings seeking that birth certificateand legal recognition in her proper gender.And she is not there yet.

Five and a half years ago, the High Courtheld that the Irish State had violatedLydia’s rights under Article 8 of theeuropean Convention on Human rights(eCHr) and declared that Ireland’s laws inthis area were incompatible with theeuropean Convention.

Since then Lydia has had promises fromtwo successive governments. There hasbeen an interdepartmental WorkingGroup on Gender recognition legislation,

a sub-committee in the Department ofSocial Protection to draw up legislation,and an opinion from the Attorney General.But there is still no legislation and Lydia stilldoes not have her birth certificate.

When the european Court of Humanrights held in July 2002 that the UK hadviolated the rights of trans womanChristine Goodwin, they had a Genderrecognition Act in place by 2004. That Actis not perfect and we in this countryshould be able to do better nine yearslater but currently we do not seem to begetting anywhere.

And there is another aspect to all this. TheGovernment has basically ignored adecision by the High Court that it is inclear breach of the european Conventionon Human rights. That shows very littlerespect for the decision of the High Court,for the european Convention, or for theeuropean Convention on Human rightsAct, which was brought in in 2003 toimplement the european Convention inIrish law. We tend to criticise the Britishgovernment for its current hostility to theeuropean Convention and to human rights

in general, but at least in almost all thecases where the UK courts have madedeclarations that UK law is incompatiblewith the Convention, the law has beenchanged.

I am not saying all this to attack Ministerfor Social Protection Joan Burton, whoseDepartment is responsible for the issuingof birth certificates. She has indicated hersupport for introducing Gender recog -nition legislation and she is probably nearlyas frustrated as we are by this stage. But itis deeply unfair and unreasonable for LydiaFoy – and all the other trans people whosehopes were raised by the High Courtdecision five and a half years ago – to haveto wait any longer for what they areentitled to.

That is why a few weeks ago we issuednew legal proceedings in Lydia Foy’s case.This time we are asking the Court todeclare that the Government must actnow to end the violation of Lydia’s rightsand to bring Irish law into line with ourobligations under the europeanConvention on Human rights.

We have done this reluctantly. Lydia hashad enough of court cases over the last 16years. But, sadly, we have come to theconclusion that whatever the reason forthe delay in dealing with this issue anddoing justice to Lydia and the transcommunity in general, it is going to takemore than just lobbying and politepersuasion to break this log jam.

On the other hand, legal action by itself,even if it is successful, does not auto -matically deliver change. Campaigning,awareness raising, and combating ignor -ance and prejudice are needed too. And Ibelieve that this book, “equality andIdentity”, will make a major contributionto that process.

On 15 March, the Transgender Equality Network Ireland launched its latest book, ‘Equality andIdentity’. FLAC Senior Solicitor Michael Farrell spoke at the launch, as reported below. You canobtain a copy of the book, compiled by Dr Orlaith O’Sullivan from a host of fascinatingcontributions, by contacting TENI at [email protected]

The book can be obtained fromTENI at Unit 2, 4 Ellis Quay, Dublin 7

or by e-mail from [email protected].

Equality and Identity:Transgender and Intersex Experience In Ireland


Does UK government policy oneconomic austerity breachinternational human rights law?

London-based campaigning organisationJust Fair, in partnership with LondonSchool of economics’ Department of Lawand Matrix Chambers, set up a trial totest the hypothesis. Charges werebrought, and ‘Austerity’ defended, by ateam of legal experts, backed bydistinguished human rights and otherspecialist witnesses from the UK andaround the world.

Karon Monaghan QC (Matrix Chambers)led the Prosecution case with JamieBurton (Doughty Street Chambers andChair of Just Fair). They alleged thatausterity had failed in its duty to securethe progressive realisation of the rightsrecognised in the International Covenanton economic, Social and Cultural rights,including the rights to work, fair wages,health, social security, education and anadequate standard of living. In short,according to the Prosecution, austerity isillegal.

The Defence, led by Martin Howe QCwith richard Honey, strongly contestedthe charge. Firstly, they cried, this was acase of mistaken identity. There had beenno reduction in public spending; rather, amodest trimming in its rate of increasecompared with the previous plans whichwere wholly unsustainable. In any event,they alleged, there has been no materialretrogression in the enjoyment of humanrights and austerity has not beenoperating in a discriminatory manner.Finally, the Defence argued that there wasno remedy which could cure thebreaches alleged by the Prosecution,other than possibly an order that littlegreen men from Mars should descend toearth and shower money on the UK.

The Prosecution, however, were infighting spirit and called Will Hutton(Oxford University), Polly Toynbee (TheGuardian) and Magdalena Sepúlveda (UNSpecial rapporteur) as expert witnesses.Hutton lambasted the UK Government,

stating that there was no necessity tomake the kinds of choices that have beenmade. The time scale to eliminate thestructural deficit could have beenextended, possibly to 10 years, he argued.

The UK did not have to cut in such amanner that 4/5 of the burden was bornethrough expenditure cuts and 1/5 via taxincreases. Toynbee told the court that ‘atrisk’ groups, including women, childrenand disabled people, will be hit hardest byausterity. Childcare subsidies have beencut, 400 “Sure Start” centres have beenclosed and child benefit has been frozen.Further, education Maintenance Allow -ance has been abolished, 36% of disabledpeople have been pushed off benefits andthe ‘bedroom tax’ may force up to600,000 people out of their homes.

Sepúlveda contended that austerity hasfailed on its duties. Firstly, it mustmobilise all necessary resources toprogressively realise rights and ensureminimum essential standards throughbasic health care, social services,education etc. Further, the UK must

avoid deliberate retrogressive measures,uphold the principles of equality and nondiscrimina tion, as well as ensuring that allausterity processes are open, transparentand accountable.

The Defence held their nerve and calledAndrew Lilico (europe economics), ruthPorter (Institute of economic Affairs) andTim Frost (Cairn Capital Group). Lilicoboldly argued that austerity just has notbeen present. rather this was its uglybrother: profligacy. In short, whileausterity would solve the economic crisis,the Coalition policy of profligacy had ledto shameless economic dissoluteness.Porter tagged in for Lilico. She declaredthat economic growth has the greatestpotential to transform the lives of thepoorest. Pro-growth policies are likely tobe pro-poor in the long run. Poverty inBritain is not a symptom of trying toreduce public spending, Porter suggested.It is a consequence of centralised govern -ment obsessed with benefits and socialservices which fail to help people get intostable and well paid jobs. In conclusion,Frost opined that austerity stands as thechampion of our future lives. Austerityknows that resources saved today can beused to secure more rights in the future.Frost called on the audience to considerthe consequences of big government andits attempt to spend out of recession. Itwill be the poor, the weak, and thevulnerable that will suffer the most.

The arguments were done, the court wascleared and the jury entered intodelibera tions. Tensions mounted to afever pitch. Would austerity be foundguilty or not guilty? Finally, the publicwere ushered back into the court and thejury gave their finding: not guilty by 9 to2! The court erupted with a cacophony ofcheers and jeers. Defiantly, theProsecution demand ed a retrial. Beneaththe din, austerity was unchained,stretched her legs and walked free…



Austerity on trial in the UK: Is there a case for economic cuts?

Watch the full trial at:

http://just-fair.co.uk/

A guest contribution by Balqis Abdulkadir Mohamud & Jonathan Butterworth, JustFair

“‘at risk’ groups,including women,

children anddisabled people, will

be hit hardest byausterity... the

‘bedroom tax’ mayforce 600,000 peopleout of their homes”




As previously reported in FLACNews, FLAC has been partneredwith the AIre Centre in London

and Lize Glas, legal consultant and formerAIre intern, in Amsterdam, in an eUCommission-funded Tri-city project. Theproject focuses on eU migrants’ access tospecial non-contributory benefits whichinclude Jobseekers’ allowance; Statepension (non-contributory); Widow/er’s(non-contributory) pension; Disabilityallowance; Mobility allowance and BlindPension.

The overall aim of the project is toimprove the information that eU migrantsin Amsterdam, Dublin and London haveabout their right to access special non-contributory benefits. Three round-tablestook place in London, Dublin and TheHague in the Netherlands respectivelyduring the course of 2012. Leadingpractitioners and NGOs in each of thethree project countries discussed issuessuch as the application of the right-to-reside test and administrative delay as wellas highlighting the problems faced bycertain vulnerable groups like victims oftrafficking and domestic violence,homeless eeA nationals, disabled people

and pregnant women.

On 7 February 2013, FLAC, in conjunctionwith its project partners, concluded theproject with a conference and trainingsession at the London office of SkaddenArps LLP. The event aimed to bringtogether NGOs, welfare benefits advisers,lawyers and those interested in the area ofeU social security rights. The conferencewas a great success and was attended byNGOS, lawyers and interested partiesfrom Member States such as UK, Ireland,Belgium, Sweden and the Netherlands. Itwas an opportunity to network withcolleagues from across europe, improveone’s understanding of eU nationals’ rightsto claim social welfare benefits and learnabout the special rules applying to specialnon-contributory benefits.

Nuala Mole, Senior Lawyer at the AIreCentre, began the conference by giving theattendees an overview of eU law onspecial non-contributory benefits. LegalDirector of the AIre Centre Adam Weissdelivered a presentation on eU law issuesof claiming special non-contributorybenefits in the UK & Ireland. MartinWilliams, Welfare rights Worker at theChild Poverty Action Group, discussed

the UK’s upcoming Universal Creditregime and the position of jobseekers inthe UK. FLAC’s Policy and AdvocacyOfficer Saoirse Brady provided anoverview of the situation of jobseekers inIreland while Lize Glas of radboudUniversity delivered a presentation on theHendrix decision and on the exportabilityof special non-contributory benefits.Finally Sarah St. Vincent of the AIreCentre discussed how to litigate refusalsof special non-contributory benefits in theUK.

A new interactive advice website will soonbe launched and will assist eU migrants inseeking to apply for special non-contributory benefits in Ireland, the UK orthe Netherlands. A report of the Tri-cityproject is also due to be published shortly.The project partners will then meet withrelevant stakeholders to discuss theimplementation of the recommendationsoutlined in the report.

Tri-City Project conference on EUmigrants’ experiences of accessing

social welfare

More information on the project andthe materials from the roundtablesand the conference are available at:http://www.airecentre.org/pages/ec-social-security-materials.html.

The Irish Government has told the Council of europe that it willrecognise transgender persons from other countries in theiracquired gender and allow them to marry or enter into civilpartnerships. But this will not apply to people born in Ireland.

The Government informed the Council of europe’s SteeringCommittee on Human rights that “Gender reassignment is notyet recognised in Ireland”. “However”, it said, “the Generalregister Office in Ireland (GrO) will accept a birth certificateamended by another state where gender reassignment isrecognised in support of notification of intention to marry or toenter into a civil partnership, from a person born out ofIreland”.

This follows a case last year where FLAC represented atransgender woman from another eU country, who wasworking in Ireland and wanted to enter into a civil partnership.The woman was recognised as female in her own country andFLAC successfully argued that if she was prevented from

entering into a civil partnership, it would be in breach of herrights under eU free movement legislation.

The Government made its statement in the course of replies toa questionnaire about the treatment of lesbians, gay men andtransgender persons in Council of europe member states, whichwas discussed by the Steering Committee on Human rights inStrasbourg in March 2013.

The new policy extends recognition to Trans persons from allcountries where they are recognised by the national authorities,not just eU or Council of europe member states. But personsborn in Ireland are still excluded from recog nition, giving a newtwist to the old notice “No Irish need apply”.

This absurd situation just underlines the urgent need to bringour law into line with the european Convention on Humanrights and almost every other state in europe.

Government recognises foreign Trans persons, but no Irish need apply
