Flac news spring 2014 for web

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

In late March PILA held a major publicinterest law conference in Dublin,which highlighted the growth in use of

law by social justice organisations.Entitled Using the Law to ChallengeInjustice, this is the fourth suchconference that PILA has helped toorganise since 2009. With nearly 400 legaland civic society actors in attendance, theconference was a summit of publicinterest law ideas and discussion.

The conference’s keynote speech wasdelivered by former South AfricanConstitutional Court Judge Albie Sachs.Justice Sachs was an anti-apartheid activist,and is a pioneer in the constitutionalrecognition of human rights. Acontemporary of Nelson Mandela, he wasjailed for his involvement with the SouthAfrican freedom movement and survived acar bomb assassination attempt in the late1980s. As a judge, he came tointernational attention in 2005 as theauthor of the Minister of Home Affairs vFourie judgment, which found that a baragainst same sex marriage violated SouthAfrica’s constitution.

The conference was opened by Ms JoanBurton TD, Minister for Social Protection.In her address she said that the use of lawby Justice Sachs and his colleagues toovercome a tyrannical system is an“exhilarating example of the law put to thegreatest possible use to the benefit of apersecuted, marginalised anddisadvantaged people.”

In his keynote address, Justice Sachs spokeof his initial involvement with the SouthAfrican freedom movement as a younglawyer, and the beginnings of the Free

Nelson Mandela campaign. He alsodescribed how, after Mandela’s releasefrom prison, activists rolled out legalstrategies to quickly advance publicinterest law issues.

As a Constitutional Court judge, he wasinvolved in several judgments that wereground-breaking for common lawjurisdictions like Ireland’s, including S vMakwanyane (1995) which abolishedcapital punishment, the Grootboom case(2000) which found the state had a duty toprovide adequate housing, and Minister ofHome Affairs v Fourie (2005) which found itunconstitutional to prevent same-sexcouples marrying. He also presided overthe Treatment Action Campaign case (2006),where the South African govern ment wasforced to provide access to HIV drugs forpregnant women based on that country’sconstitutional guarantee of the right to

healthcare.

PILA invited Albie Sachs to speak at thisconference to inspire attendees; to tellthem that anybody – not just the elites –can use law to change society, and ignite apassion for using the law to helpdisenfranchised communities. Justice Sachsand the other international and Irishspeakers spoke with first-hand experienceabout how a state with limited resourcescan still prioritise human rights.

A plenary panel discussion after JusticeSachs’ address considered the potential ofpublic interest law to create real socialchange. The members of that panel wereFLAC Director General NoelineBlackwell; The PILS Project's GerryHyland; FLAC Chairperson Peter WardSC; Trinity College Dublin AssociateProfessor Gerry Whyte and SeanadÉireann Senator Katherine Zappone. The

C ontinued on page 8

L-R: FLAC director General Noeline Blackwell, FLAC Chairperson Peter Ward SC, Justice AlbieSachs, Minister for Social protection Joan Burton TD.

‘Law put to the greatest possible use’:South A frican freedom fighter and other public interestlaw heavyweights speak at PILA ’s annual conference

FLAC News SPRING 2014v6_YW._FLAC05 vol15no4 12/05/2014 18:50 Page 1

Join Team FLAC on Monday 2 June forthe 2014 Flora Women’s MiniMarathon, the biggest all-women's

event of its kind in the world! This yearwe hope to bring together a team ofwomen committed to promoting accessto justice in Ireland to walk, jog or run10km along the streets of Dublin and toraise some valuable funds for FLAC.

We invite all our female supporters to joinus at this annual event; the first step is tohave signed up online throughwww.florawomensminimarathon.ie. Thedeadline for registration was 18 April so

hopefully you managed to get yourselfregistered on time! Get in touch to let usknow and we will provide a FLAC t-shirtand materials to help you fundraise. Just25 participants raising €200 each wouldbring in €5,000 – hugely valuable at thistime where funding is more and moredifficult to find. While this event is onlyopen to women, we invite our malesupporters to encourage the women intheir lives to take part and, of course, tosponsor them!For more information, contact GillianKernan at [email protected] or (01) 887 3600.

flac News | Vol. 24, No. 1

in this edition...

‘Law put to the greatest possible use’:PILA conference 2014 1, 8 &9

Join us in running for access to justice 2

Civil legal aid trends 3

Redressing Imbalance launch sees broadwelcome for reform proposals 4-5

If we don’t ask we won’t hear 6

Telling the real story on rights: A Shadow report on ICESCr 7

Focus on FLAC :

Galway FLAC 10

PILA Coordinator rachel Power 11

Update on FLAC Student Societies 11

PILA update:

Working group on assisted dying 12

Amicus curiae seminar 12

Cork legal education seminar 12

Social impact assessment in Budget 2014 13

Making human rights enforceable at last?The Constitutional Convention and ESC rights 14

Ireland’s record on social rightsEuropean Committee on Social rights Examination 2014 15

Help make access to justice a reality for all 15

opinion: Consumers of financialservices are being badly let down by the system 16

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

Editors: Amy Smyth & Yvonne Woods

Layout & Printing: Printwell Design, D3Contributors: Noeline Blackwell, ollieBrowne, Emer Butler, Michael Farrell,Columb Fortune, Amy Heffron, Paul Joyce,Gillian Kernan, Geraldine Murphy, Yvonneo’Sullivan, rachel Power, Amy Smyth,Stuart Stamp, Kim Watts, Yvonne Woods,Zse Varga

Photos by FLAC, Derek Speirs

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

Join us in running for Access to Justice!

2 F L A C N E W S l J A N U A R Y - M A R C H 2 0 1 4

New report says Irish consumers notadequately protected in financial services

FLAC has published an analysis ofIreland’s legal protections forconsumers availing of financial

services and credit — and finds it inurgent need of extensive reform.Written by FLAC’s Paul Joyce andindependent researcher Dr StuartStamp, the report and an ExecutiveSummary is available to download fromthe FLAC website at www.flac.ie. Moreon pages 4-6 & on the back page.


Civil legal aid trends

For forty-five years FLAC has beencampaigning towards the provisionof a system of legal aid in Ireland

that is sustainable and effective. Havingsuccessfully lobbied the then government,FLAC secured the establishment of thestate-run Legal Aid Board in 1979 whichwas placed on statutory footing by theCivil Legal Aid Act 1995. This actconferred responsibility for appointmentsto the Board on the Minister for Justiceand Equality, who is also responsible fordeciding the conditions under which legalservices are available. The Governmentremains under obligation to ensure thatthe scheme is as timely, effective andsustainable as possible, and FLAC willcontinue to apply pressure to this end.

Since the economic downturn in 2009,Ireland has faced huge challenges, withcutbacks to various state services. Asdisposable income dropped for more andmore people, the numbers who becameeligible for and in need of legal aidincreased. This increasing pressure on theLegal Aid Board became evident as waitinglists in law centres around the countryincreased. The article briefly outlines thechanges to the civil legal aid system inIreland since 2009.

As illustrated above, there has been astaggering 198% increase in the number ofpeople waiting for a consultation with asolicitor between 2008 and 2012. Inresponse, the Legal Aid Board in 2012piloted and introduced a ‘triage’ systemwhereby all applicants are seen by asolicitor for a brief 40-minute consultationwithin a month of applying for assistance.However, the reality is that in some lawcentres there is a waiting time of up to 50weeks for such a triage appointment.

on 1 February 2014, there were 3176people in Ireland waiting for their firstconsultation with a Legal Aid Boardsolicitor, and 1781 waiting for theirsecond meeting.

As Ireland moves slowly towards the endof a prolonged period of economicinstability and uncertainty, it remainsvitally important that the governmentdoes not lose sight of those who cannotaccess justice because they cannot affordit. Although the scheme of civil legal aid inIreland would appear at first to satisfy thebasic requirement for a system to legallyaid individuals of limited means, on closerexamination, the continuing rise in thenumber of applicants, coupled with staticfunding, prevents the system from beingeffective, timely, or sustainable as it is alsorequired to be.


3F L A C N E W S l J A N U A R Y - M A R C H 2 0 1 4

The scheme of civil legal aid in Ireland

So what is legal aid? S. 25 of the Civil Legal Aid Act 1995 states:

...representation by a solicitor of the Board or a solicitor or barrister engaged bythe Board under section 11, in any civil proceedings to which this section appliesand includes all such assistance as is usually given by a solicitor and, whereappropriate, barrister in contemplation of, ancillary to or in connection with,such proceedings, whether for the purposes of arriving at or giving effect to anysettlement in the proceedings or otherwise.’

q In 2013 there were 17,547 applications for legal aid made

q There are 4,957 people waiting for legal services in Ireland

q The average waiting time for a first consultation is 24weeks (6 months)

q The average waiting time for a second consultation is 30weeks (7.5 months) - note some law centres have a waitingtime of 6 weeks, some have a waiting time of 70 weeks

Information correct as of 1 February 2014

Some figures around civil legal aid in Ireland today:

0

1500

3000

4500

6000

2008 2009 2010 2011 2012

1681

2228

3153

4443

5014

No of people waiting for first consultation with a solicitor


F L A C N E W S l J A N U A R Y - M A R C H 2 0 1 44


Redressing the Imbalance launch seesbroad welcome for reform proposals

FLAC’s latest report, Redressing theImbalance: A study o f legalpro tection available fo r consumers

o f credit and o ther financial services inIreland, was unveiled on 7 March 2014 inDublin’s Buswell’s Hotel. FLAC DirectorGeneral Noeline Blackwell chaired thelaunch while report authors Paul Joyce,FLAC Senior Policy Analyst, and Dr StuartStamp, research Associate with theDepartment of Applied Social Studies NUIMaynooth, presented an overview of thereport's findings and recommendations.

The report‘s main premise stems fromthe belief that consumers are entitled to ahigh level of legal protection when availingof financial services and examines the

evidence from the consumer'sperspective as to whether this is actuallythe case in Ireland. It concludes that fromEU consumer credit directives to thedomestic system of complaint available toconsumers unhappy with the conduct oftheir financial service provider and atmany points in between, standards ofprotection leave very much to be desired.

When a consumer is unhappy with theconduct of a financial service provider andthe complaint is not resolved internally,he or she will be directed to complain tothe Financial Services ombudsman (FSo).For the purposes of this report, FLACinterviewed a number of complainantsand MABS money advisers who hadcontacted us in relation to complaintsinvolving the FSo (see separate article byDr Stuart Stamp on page 6). Someexpressed dissatisfaction at the processesinvolved and the lack of independentassistance to respond to detaileddocumentation from well-resourcedproviders. The report notes that noexternal evaluation of the FSo has takenplace since it was established and thisshould be remedied.

The report reviews the legislationestablishing the FSo and concludes that ittoo should be overhauled in a number ofrespects. For example, consumers (orproviders) wishing to appeal against anFSo finding must do so to the HighCourt. This is an intimidating prospect forany consumer and beyond the scope ofmost, given the high costs and the risk ofan adverse costs award. See page ? for afull account of FLAC’s concerns in thereport by Paul Joyce. redressing theImbalance concludes with more than fortyseparate recommendations to improveand strengthen legal and administrativeprovisions for consumers at all levels.

At the launch, the large cohort of

individual MABS money advisers receivedthe findings and recommendations verywarmly. Katherine Finn from MABSNational Development Limited welcomedthe report on behalf of MABS, taking theopportunity to also call for an effectivesystem of legal assistance in debt cases asa matter of urgency. Senior representa -tives from the Department of Finance, theFinancial Services ombudsman office andthe Central Bank attended the launch.Bernard Sheridan, Head of ConsumerProtection with the Central Bank, saidthat the Bank would take a look at thereport and would be willing to engagewith FLAC on this issue in the future. Thisview was shared by Deputy FinancialServices ombudsman Jacqui McCrum andAntoine MacDonncha, Head of Legal Unitat the Department of Finance, who bothechoed Bernard Sheridan’s comment andpledged willingness to engage with FLACon the issue in the future.

While the impact of the report will likelynot be fully quantifiable for some time, ithas already gained support from thepublic and politicians alike. Emer CostelloMEP took to social media to congratulateFLAC and say that she will be pursuingrecommendations at EU level for ‘greaterconsumer protection’.

Senator Aideen Hayden mentionedredressing the Imbalance in a SeanadÉireann Debate on 12 March andrequested that the issue be brought to theattention of the Government and that

Report authors Paul Joyce & Dr Stuart Stamp

Noeline Blackwell, Director General, FLAC




there is a review of the legislation which isnot fit for purpose in defending mortgageholders (the latter sentiment wassubsequently echoed by Aodhano’riordain TD in an rTE interview).Senator Maurice Cummins replied toSenator Hayden, pledging to bring thismatter to the attention of the Minister forFinance.

overall, the report concludes thatcomplaints resolution mechanisms, ascurrently constituted and administered,are inadequate to the task of redressingwhat FLAC believes to be the imbalancebetween financial service providers andthe vast majority of consumers. The loudand public hand-wringing from banking andstate quarters that followed our boommight have led many to believe that stepshad been taken to prevent future recklesslending and provide proper channels ofredress and remedy for people who hadbeen poorly treated during the boomtime. However this is not the case. Inreality, the exact same thing could happenagain and our legal protections would stillnot be fit for purpose.

Please keep an eye on FLAC’s website forupdates on our campaign to overhaulIreland’s legal protections for consumersof financial services and credit.

Key report figures: (back row) Julia Heffernan, Dr Stuart Stamp,Gwen Harris, Paul Joyce, PJ O’Reilly (front row) Lynda Sweeney,

Betty O’Shea, Derek Teeling

Survey respondent PJ O’Reilly during the Q & A session.

Central Bank Head of Consumer Affairs BernardSheridan, Deputy Financial Services OmbudsmanJacqui McCrum and Head of Legal Unit with theDepartment of Finance Antoine McDonncha.

Emer Butler (FLAC); Saoirse Brady (Children’s Rights Alliance) and

Jackie Heffernan (FLAC) Liam Edwards, formerly of MABS, during Q&A

Case study A: Life insurance payment denied to widowPerson A’s husband took his own life due to worries over money; she notifiedher life insurance company about the tragedy only to be told their policy hadlapsed days before because of missed payments. The insurer claimed it hadsent warning letters to both A and her building society but neither party hadreceived these letters. Despite this Person A eventually received a finding of‘partially substantiated’ on her complaint to the Financial Servicesombudsman. Her award was a tiny fraction of the amount she should havereceived in insurance payout. She says she could not have navigated thecomplaint process without the support of MABS as it was too complicated andlengthy, describing it as impersonal. Now facing extreme difficulties to meetmortgage payments, A cannot see how a complaint could be ‘partiallysubstantiated’ as it is either right or wrong; and said the amount awarded was“an insult”.

Case study B: Bank refused to refund stolen moneyPerson B and partner had bank cards stolen and skimmed. The bank, of whichB was a very long-standing customer, refused to refund the thefts. It had notdetected any unusual card usage and even charged interest on the amountsstolen. B says the bank’s delayed response to B’s complaint also held up aGarda investigation. The Financial Services ombudsman partially upheld B’scomplaint and awarded compensation of a fraction of the money stolen; ittook over a year to investigate the case. B is unhappy primarily because of the‘partly’ finding, which is unclear. B is very upset about the long delay ininvestigating the case; also, that an appeal is in reality impossible, as the onlyoption is to go to the High Court, which B cannot afford given estimated costsof around €30,000. This is over and above the conduct of the bank, which Bconsiders to have been very arrogant and dismissive.

FLAC Case Studies




There is a compelling argumentthat both policy development andevaluation should include input

from those individuals or groups uponwhom such policies most directly impact.Although such input has been a feature ofmany aspects of social policy-making inIreland in recent years, there is one realmwhere it has been notable by its absence,that of credit and debt policy.

As part of the initial desk research carriedout for Redressing the Imbalance, weexamined a range of administrative andstatistical data on complaints made byfinancial service users, but could find nodata whatsoever about the characteristicsof the complainants concerned or theirexperiences of making complaints againsttheir providers. We decided, therefore, toincorporate within the study theperspectives of a sample of suchconsumers together with those of theiradvocates (mainly MABS money advisors).For methodological reasons, we confinedour study population solely to complaintswhich had involved FLAC in some way. Asit transpired, a consistent narrativeemerged from the field of 30 interviews;the consensus was that our findings maywell reflect the experiences of financialservice complainants more generally.

The qualitative component of the researchadded value to the study in a number ofways. It illustrated, for example, that thereis a context to complaints, and that a betterunderstanding of this context might informa more user-appropriate system. We cameacross instances where capacity to evenmake a complaint in the first place was anissue, due to ill-health, family difficulty orliteracy issues, a finding which suggests thatmany complainants will require specialistsupport in order to frame and see throughtheir complaint. Further, several of theresponses indicated that there are certainfinancial service providers engaging inpractice in what can only be termed a warof attrition, apparently in the hope thatconsumers and their advocates will give upon complaints; this implies that regulation isnot protecting these consumers as well asit should, and that more robust monitoringand enforcement is needed. The interviewsalso threw particular light on the Financial

Services ombudsman’s complaintsprocedure from a user/advocateperspective; the findings here evinced acold, formal process based on (oftenmultiple) exchanges of technicaldocumentation, a process that favouredproviders used to conducting business insuch a way. Many respondents – includingadvocates – clearly found the process to beonerous and there were frequent reportsof complainants contemplating giving up atsome stage; indeed, many would have doneso only for the advocacy and supportprovided throughout the process by theirMABS money advisor, a finding whichsuggests that MABS may be the mostappropriate home for the creation of aspecialist advice service for complainants.

In addition, the qualitative findings offeredlikely explanations for trends we hadobserved in quantitative data. For example,we had noted in its annual reports that fewcomplaints made to the FSo appear to beresolved by mediation; many of ourrespondents explained how they hadactually opted for mediation, only to be metwith a refusal to engage from their provider– the FSo subsequently confirmed that it isindeed provider refusal that is the mainbarrier to mediating complaints. We hadalso noticed that a large proportion ofcomplainants to the FSo (around 40% overtime) appear to give up after making aninitial complaint to that office; thecombination of provider delay andobfuscation cited by respondents, coupledwith the welter of documentation involved

in the FSo process itself, may go a long waytoward explaining this phenomenon.

Finally, interviewees who had gone rightthrough the FSo process reflected uponhow it might be improved and again, aconsistent narrative emerged here whichinformed our recommendations as to howthe complaints process as a whole couldbe made more consumer friendly. A morepersonal process, centred around oralhearings and mediation, could for exampleaddress the concerns of many who feltthat their complaint had not had a fairhearing. The way the FSo categorisesfindings elicited particularly strong feelings;several respondents objected to the use ofa ‘partly upheld’ category for complaintsthat they believed had actually beensubstantially rejected. Those who hadcontemplated appealing the FSo’s findingspoke in depth about their variousconsiderations before reaching a decisionabout what to do. It transpired that therisk of incurring liability for the potentialcosts associated with a High Courtprocess was the major barrier toembarking on such an appeal, a concernwhich suggests that a more accessibleforum should be found for potentialappellants (like the Circuit Court).

These are just some examples of how thequalitative input to the study enabled us tobetter ground both our analysis andrecommendations for reform from aconsumer perspective. But of course,unless we ask consumers for theirexperiences and perspectives, we will nothear them, and a crucial dimension will bemissing from policy development andevaluation in the arena of financial servicesmore generally. In a biting satire of‘modern life’ at the time he was writing,W.H Auden concluded his poem “TheUnknown Citizen” with the following lines:

Was he free? Was he happy? Thequestion is absurd:

Had anything been w rong, weshould certainly have heard.

The findings contained within this studyillustrate what we might hear if we do ask– but we need to take the trouble to doso first.

R E D R E S S I N G T H E I M B A L A N C E

If we don’t ask, we won’t hear: Incorporating consumer experience in Redressing the Imbalance

by Stuart StampIndependent Social Researcher & Research Associate, NUI Maynooth




In 2014 FLAC is undertaking acomprehensive Shadow report onhow the Irish State is meeting its

duties under the International Covenanton Economic, Social and Cultural rights.This international treaty came into forcein 1976 and Ireland ratified it in 1989. Itplaces obligations on the State to protect,promote and fulfil people’s rights in areassuch as housing, social security, adequatestandard of living, health care, protectionof families, culture and decent workingconditions, amongst many others.

FLAC wants the Shadow report to reflectmeasures the government has and in somecases hasn’t taken, along with the impactsthese changes have on people’s lives.There will be three main consultations inGalway (12 May), Cork (15 May) andDublin (20 May) to allow civil societygroups to provide insight into the currentsituation of economic, social and culturalrights in Ireland.

Two thematic consultations, covering theright to social security and the right tohousing, and tying in with FLAC’s work ondebt & credit law reform and socialwelfare reform, will take place in Dublinon 21 May.

organisations can also feed into this workby making a written submission by 30 Mayor by contacting our research team withconcerns.

Ihe Irish state is obliged to undergoregular examination by the UNCommittee on Economic, Social andCultural rights on compliance withCovenant provisions. The State mustreport on progress of all rights before theCommittee every five years. Ireland wasexamined in 1999 and 2002 and is nextdue before the Committee in May 2015. Itsubmitted its report in 2010, covering2002 to 2010; there is a great opportunityfor organisation’s input into an up-to-dateshadow report on issues that may haveemerged since 2010 or earlier.

FLAC’s Shadow report will be reviewedby the Committee members in con -junction with the State’s report whichthey will use to inform their questions forthe Irish government. Having a report thatis well informed and reliable in terms offacts and figures can have a real influence

in the course of the examination and couldresult in recommendations for thegovernment around specific economic,social and cultural rights.

The Shadow report and Committeerecommendations can then be used byorganisations as an advocacy tool toadvance their agenda on economic, socialand cultural rights. The report is set to bepublished in June and we welcomeparticipation from all organisations inIreland working to advance economic,social and cultural rights.

For information please contact SaoirseBrady, Project Manager, at [email protected] 085-836 9665.

Telling the real story on rights: Shadow report planned on International Covenant on

Economic Social and Cultural Rights

FLAC’s Zsé Varga & Tim Feeney of NUI Galway FLAC Society

Galway student FLACinaugural seminar

NUI Galway FLAC Society held itsinaugural Law Day seminar in January.Speakers like the Hon Mrs JusticeCatherine McGuinness, LarryDonnelly, Lydia Foy and NoelineBlackwell addressed ‘equal access tojustice’.

See page 11 for further updates onstudent societies.

More info?t Follow us on Twitter

@RealRightsIRL

t FLAC info sheet on ICESCRShadow Report: bit.ly/ICESCR2015info

t FLAC ICESCR Questionnaire: bit.ly/ICESCRquest2015




panel reflected on Albie Sachs’ keynoteaddress, and lessons that could be appliedfrom the South African experience to Irishhuman rights and public interest lawpractice.

The afternoon session of the conferencefeatured four breakout sessions, whereattendees engaged in practical discussionand learning on pro bono, helping NGosto the use the law, ombudsmen andalternative routes to justice and clinicallegal education. The conferenceconcluded with refreshments and canapésand lively round-up panel hosted byjournalist and TV personality VincentBrowne.

The conference was a great success and,as with previous public interest lawconferences that PILA has helped toorganise, shows the strength of the publicinterest law movement in Ireland. Thepractical impact of PILA is unquestionable- over the past four years, its pro bonoreferral scheme has facilitated more than200 legal referrals for organisations as wellas arranging dozens of legal educationsessions and law reform working groupsfocussed on using the law for the benefitof people living with disadvantage. In anuncertain funding future, attendees wereleft with a question of how to mostsustainably develop the public interest lawmovement and the growing pro bonoculture among lawyers.

The event was covered by major Irishprint, radio and online news providers.Justice Sachs also took part in severalother engagements during his two-dayvisit to Ireland, including a lecture atUniversity College Dublin where he wasawarded the highly prestigious UCDUlysses Medal. He also took part in theunveiling of a commemorative plaqueoutside the late Kadar Asmal’s home,where Albie helped the exiled activist andlecturer at Trinity College Dublin to writethe first draft of the ANC’s proposed Billof rights for a Democratic South Africa.

P I L A C O N F E R E N C E Continued from front page:

• Visit www.pila.ie to watch thekeynote address by justice Sachsand other coverage of theevent.

• An audio podcast will shortly beavailable with Justice Sachs ininterview at flac.ie & pila.ie

Justice A lbie Sachs

L-R: Justice Albie Sachs, FLAC Chairperson Peter Ward SC, FLAC Director General Noeline Blackwell,Minister for Social Protection Joan Burton TD

All photos by Derek Speirs




Minister for Social Protection Joan Burton TD who opened the conference

Breakout session on ‘Mobilising NGOs to use the law’ with (L-R) Deirdre Duffy (ICCL),Broden Giambrone (TENI), Marianne McKeown (PILnet) & chair Michael Farrell (FLAC).

Concluding panel session chaired by broadcaster Vincent Browne. Also pictured (L-R):Dr Carol Coulter, US lawyer Miriam Buhl, FLAC’s Michael Farrell & Larry Donnelly of

NUI Galway.

Bottom left: Breakout sessionon Ombudsmen & alternativesroutes to justice with (L-R)Niall Muldoon, OCO Director;Carmel Foley, GSOCCommissioner; and Dr CarolCoulter, CCLRP Director.

Left: Jim Winters of InclusionIreland during Q&A

Pia Janning of Amnesty Ireland at the Q&A session


Galway Free Legal Advice Servicesis run by the Galway CitizensInformation Service in the heart of

Galway city. It is a busy centre seeing closeto 30,000 people annually in its CitizensInformation Centre. The Galway CitizensInformation Service is also responsible forthe management of Tuam CIC, ClifdenCIC, and rosmuc CIC which serves anIrish-speaking community.

The Galway CIS involves volunteers in itswork for long decades at this stage.Volunteers are not only involved in thelegal advice side of things, but also in theCitizens Information Centre itself. Thereare some 78 people involved in the workof the CIC, including 23 lawyers whoprovide the free legal services. They alsohave a board of 7 people who volunteertheir skills and time.

Mary Mulkerrin, Development Managerwith Galway CIS, says that this committedboard of management coupled withskilled staff and volunteers form astronghold of good practice in providinginformation and advice.

FLAC training held in Galway

FLAC organised a training event forGalway FLAC volunteers and their peersin November 2013. This event wasstrongly supported by both the GalwayCitizens Information Service as well as bythe Galway Solicitors Bar Association.With our local help, we were able toattract more than 40 participants for aninclement Friday afternoon in lateNovember.

The first topic was on Civil Legal Aid, heldby Maria Maguire, Solicitor from the LegalAid Board’s Law Centre in Galway atSeville House. Maria provided an overviewon Civil Legal Aid in Ireland, including abrief history of the scheme, how thescheme works, the Legal Aid Board’sspecialised services as well as practicalaspects of making an application for legalaid. She also spoke about recent changesin legal aid, such as the triage system, andabout the recent amendments to fees andeligibility criteria.

The second part of the training wasdelivered by Paul Joyce BL, FLAC’s SeniorPolicy Analyst, on the topic of “Moving outof Debt”. Paul gave details on the revisedCode of Conduct on Mortgage Arrears,

on Debt relief Notices, the DebtSettlement Arrangements (DSA) and thePersonal Insolvency Arrangement (PIA).Paul also dealt with key developments inrelation to the Personal Insolvency Actand any questions related to the topicfrom our audience. Bankruptcy andquestions related to the matter were alsodiscussed in the presentation in greatdetail. To finish on a positive note Paulgave a short introduction to a number oforganisations who are involved insupporting those finding themselves indifficulty of debts.

The feedback from the training event wasgreat - participants describing the event as“very worthwhile attending, and […] veryclearly delivered in a user friendlymanner”, “very useful” and simply“brilliant”.

FLAC is always seeking solicitors andbarristers fully qualified to practise law inIreland to join the Galway and Tuam freelegal advice centres. Volunteers give free

legal information and advice to those mostin need.

What happens in a FLAC?

The FLAC service is voluntary andconfidential. The advisors are lawyers andare happy to give callers what legalinformation and advice they can, but theywon’t be taking on a case, acting for orwriting letters on callers’ behalf. Theycannot give second opinions on a legalissue where another lawyer is alreadyengaged. The sessions last a maximum of15 to 20 minutes and if callers need morehelp at the end of that time, the volunteeradvisors may have to direct them on tothe Legal Aid Board or to another service.FLAC volunteers have no client-solicitorrelationship with callers to our centres.Thus while callers are welcome to use theservice more than once, we do not andcannot guarantee they will see the sameadvisor. Equally, FLAC volunteers mustnot refer callers to their own, or anyparticular private solicitor’s practice.

If you are interested in becoming a FLACvolunteer in Galway or Tuam, please get intouch with Zsé Varga, Volunteer andCentres Manager at FLAC (volun [email protected]) or with Mary Mulkerrin,Development Manager, Galway CitizensInformation Service (076 107 76 00)


Galway Free Legal Advice Centre


F O C U S O N F L A C :

Free Legal Advice servicesprovided by GalwayCitizens Information

Service: 4 General Free Legal Advice: 2nd

and 4th Thursday of the month7.30-8.30pm

4 Free Legal Advice on Immigrationlaw matters: 2nd Wednesday ofthe months 6.00-7.30 pmAppointments only

4 Free Legal Advice on Family lawmatters: Every Thursday 2-4pm

4 Free Legal Advice onEmployment law matters: 2ndand 4th Wednesday of themonth 6.00-7.30 pm

Help wanted !If you are a solicitor or barrister,qualified to practise in Ireland, andwould like to help the most margin -alised in our society while using andextending your knowledge and skills,come and join one of our Free LegalAdvice Centres. Contact Zsé Varga,Volunteer and Centres Manager,[email protected]. Your role will bevery much appreciated.




R achel Power joined FLAC inAugust as the Project Co -ordinator of PILA (Public Interest

Law Alliance). With a BCL degree from theNational University of Ireland, Galway,rachel had a broad interest in all aspects oflaw but was particularly interested incomparative disability law, taught in NUIGby Professor Gerard Quinn. In collegerachel was active in the events departmentof the Student Union; it was here thatrachel had her first interaction with theworld of NGos and charities. She quicklydiscovered how much she enjoyedworking with charities within the universityand organising fundraising events.

After completing her degree rachel tutoredin college on a variety of subjects, fromcompany law to family law. She then spentsome time overseas before starting hertraining to become a solicitor withEversheds in Dublin. While Evershedsprovided invaluable training, on qualifying asa solicitor rachel felt the need to return toworking within the charity and NGosector.

Her next move was to the Irish Humanrights Commission working in theEnquiries and Legal Department. Buildingon this experience and wishing to pursueher interests in international developmentled her to help establish Irish rule of LawInternational. This is the joint charity ofthe Bar Council of Ireland and the LawSociety of Ireland, which seeks to developand promote the rule of law in developingnations. rachel managed projects in Africa,Eastern Europe and Asia developingtraining programmes for lawyers and

judges on a wide range of legal issues. Shealso ran projects that focused ongrassroots rule of law development andadvancement of clinical legal education forlaw students.

rachel always followed the work of FLACand PILA and when the opportunity aroseto apply for the role of PILA Coordinatorshe was excited to become involved withthe organisation. In fact rachel had been avolunteer solicitor in the FLAC clinic inrathmines while practising in Eversheds.rachel explains “I have always admiredFLAC’s work in access to justice andespecially the idea of bringing NGos andlawyers together and trying to get them towork in innovative ways. There is hugepotential for public interest development

in Ireland and PILA is very much thecatalyst in driving this forward.”

rachel has a very defined view of what herrole is within PILA and is constantlyworking toward the aims that she has setherself with the organisation. “My role isabout the future of PILA – I deal withsustainability and putting together aninfrastructure for public interest law andfor PILA that will be able to withstandtime and future funding challenges.” Thisattitude towards the work of PILA meansthat rachel has a clear vision of what shehopes for the Alliance: “I would like to seethe increasing goodwill and enthusiasm ofall of our stakeholders continue to growand evolve, and see them continue to becarried by the energy that PILA hasengendered.”

rachel’s commitment to human rightsextends well beyond her working life. Inher free time she sits on the managementboard of Future Voices Ireland, which is anorganisation that works with teenagersfrom disadvantaged backgrounds who areinterested in law but who may feel thatthey are very far away from the legalsystem. Future Voices Ireland works tohelp them find their voice on social justiceissues, while looking to remove barriers toprogression in their studies and careers.

rachel is really enjoying her time withPILA and the fast-paced, ever-changingchallenges that she encounters on aregular basis. She looks forward to seeingwhat the future brings for PILA and publicinterest law in Ireland, and being part of itsevolution and progression.

Rachel Power, PILA Co-ordinatorF O C U S O N F L A C :

With the college year ending and examslooming, some students have been buryingtheir heads in books (others have justdiscovered their college library). over theyear, FLAC student societies around thecountry have been running campaigns,organising talks on legal topics and runninglegal advice clinics on campus. With manysocieties’ AGMS falling around this time ofyear, in fact FLAC societies are nowbusier than ever co-ordinating events andclinics while accommodating committeechange-overs.

In December 2013, FLAC studentsocieties around the country cametogether in FLAC’s head office for a first

roundtable to discuss progress. The maingoal was to set up a simple and effectivecommunication network to share societyevent details with their peers, co-ordinatejoint college campaigns and even to shareadvice and information with one another.The network, primarily maintained viasocial media, has proven a success,allowing different FLAC societies to keepin contact, plan joint initiatives and stay intouch with the FLAC main office.

on 24 February 2014, FLAC societiesagain gathered. Now that they werealready acquainted, the main aim was todiscuss possible joint ventures for2014/2015. Many great ideas for joint-

college ventures arose at the meeting, suchas a “Know Your rights” informationbooklet aimed at students, cross-collegepublic interest law moot competitions, ajoint college public interest and humanrights blog and even larger scale events.

FLAC societies continue to providestudents, staff and even members of thepublic with free access to legal advice.FLAC has high hopes for the collegesocieties in 2014/2015 and with a networkin place amongst the societies and thefoundations for many joint projects alreadyset, 2014/2015 is already looking to be ahugely successful year for the FLACcollege societies.

FLAC student society round-up



PILA has convened a working group which is investigating the introduction of legalprovisions for assisted dying in Ireland. PILA were approached by a euthanasiacampaign organisation following the Supreme Court’s consideration of Marie

Fleming’s case in 2013. Marie Fleming

The working group is working with the late Ms Fleming’s partner, Tom Curran, and isworking on a draft version of a legislative Bill. The working group first conducted anumber of pieces of legal research comparing assisted dying legislation from a number ofdifferent jurisdictions. The draft Bill will then be used by campaign groups to lobby forlegislative change.

If you would like more information about this working group, please contact MaireadHealy at [email protected] at or 01 872 8048.

PUBLIC INTEREST LAW ALLIANCEU P D A T E


Working Group on Assisted Dying convened

On 26 February PILA held a seminar on the role of amicus cur iae in courtproceedings and its impact in advancing public interest law. Sinead Lucey of theIrish Human rights Commission, Grainne Gilmore, BL and Elizabeth Mitrow,

Solicitor KoD Lyons spoke at the seminar, with the panel chaired by Mr Patrick DillonMalone SC. The seminar was very well attended with a cross section of legalpractitioners, front line representatives working in areas such as disability, immigration,childcare and white collar crime and policy and advocacy officers.

The purpose of the seminar was to set the scene for the use of amicus curiae, for examplewhat factors should an NGo consider in assessing whether to apply to intervene as anamicus, what impact, if any, it may have on other areas of its strategic work, potential costimplications and resource constraints. Similarly, practitioners were briefed on thejurisdictional considerations and applicable principles which have emerged from Irish caselaw. Attendees were also provided with guidance on suggestions as to the approaches whichmight be taken in an amicus application. The seminar was followed by a lively question andanswer session with attendees engaging the panel in the role of amicus curiae to advancepublic interest law and the benefits and pitfalls of using this type of court application.

If you would like any more information about amicus cur iae or to suggest future topicsfor PILA seminar please contact PILA Legal officer Eithne Lynch at [email protected] 01 887 3631.

Seminar on Amicus Curiae proves popular

On Wednesday 5 March, PILA andNASC co-hosted 2 legaleducation sessions for a number

of NGos and voluntary organisationsbased in the wider Cork area. Thesessions were presented by lawyers onthe PILA Pro Bono register. The day wasvery well-attended with full sessions forboth events. Attendees came from aroundthe country and included solicitors, as wellas front line representatives from localorganisations working in areas such associal housing, domestic violence andimmigration.

The morning session, on Housing Law, waspresented by solicitor Cian Moriarty. Hediscussed a number of different housinglaw issues particularly relevant to theorganisations in attendance, includingtenants’ entitlements, anti-social behaviourand eviction orders.

The afternoon session on Family Law waspresented by solicitor Claire McCarthy.She discussed topics including mainten -ance and access and custody rights, familylaw in relation to survivors of domesticviolence, separation and divorce, legalrepresentation and access to free legal aidand translation. After her presentation,attendees engaged in discussion aboutfamily law and human rights issues inDirect Provision centres. They alsodiscussed questions about unmarriedfathers, grandparents, trans-nationalfamilies, child abduction, and more.

PILA organises a number of legal educationsessions, as well as seminars androundtables on issues related to law reformin addition to our Pro Bono referralScheme service. The aim of these servicesis to enhance organisations’ capacity to usethe law in promoting change. If you haveany suggestions for future legal educationsessions, please contact PILA Projectofficer Mairead Healy at

[email protected] or 01 872 8048.

PILA and partner NGOshold Legal EducationSessions in Cork

At the afternoon session on ‘Institutionalising pro bono in Ireland’ at PILA ‘s recent conference (L-R): sessionchair & pro bono counsel with US law firm Weil Gottschal & Manges Miriam Buhl; David Hilliard pro

bono partner of Australian law firm Clayton Utz, Sara Moorhead SC, Eamonn Conlan of A&L Goodbody &Dara Robinson of Sheehan & Partners.

Photo by Derek Speirs


In February 2014, the Department ofSocial Protection published a researchbriefing that assessed the social impact

of the main welfare and tax measures for2014 introduced in the budget.

The research concluded that unemployedsingle people were most affected bychanges introduced by Budget 2014, losing3.8 per cent of their income. It found thatincome inadequacy increased for thosedependent on social welfare increased forall family households from unemployedsingle people to lone parents and familieswith children. The impact of Budget 2014is also disproportionately felt byunemployed couples without children;those in employment are least affected.Top earners were most affected bychanges in DIrT and tax relief on healthinsurance. Property tax and welfaremeasures affected the poorest the most.

The Department’s research evaluatedboth the incoming social welfare cuts aswell as the new tax measures for 2014,aiming to provide an insight into theeffects of budgetary decisions on varioussegments of society. The aim is to use thisresearch to tackle poverty and to identifyhow State policies might avoid policiesthat disadvantage particular groups orincrease social exclusion.

The report is interesting in itself, and as anassessment of how changes in welfare andtax policies change the situations ofvarious elements of our society. TheDepartment is to be commended forpublishing this and similar reports. Itwould be equally fascinating to see suchreports issued by other Departments – inparticular the Departments of Finance andof Public Expenditure and reform.

However, this assessment is one-sided. Ittakes the quantitative data available anddoes the sums to come up with itsconclusions, including that combinedwelfare and tax measures for 2014 resultin a loss of 0.8% in average householdincome. However, this assessment doesnot encompass the full impact of thosechanges. A report on social impactassessments commissioned by theEuropean Commission focused on theiruse as a tool for mainstreaming social

inclusion and protection.It found that they hadtheir uses, but that manychallenges exist. Amongthese a stakeholderconsultation wasrecognised as an essentialfactor in maintainingquality control and ingathering data andinformation on the impactanalysis of policies. A fullsocial impact assessmentwould identify the impactthat further austeritymeasures in Budget 2014 had on oursociety, including the most vulnerable inthat society.

In preparing this year’s budget, theinformation in this report will be helpful.However, for a better understanding,more involvement of those who suffer theimpact will be needed. The Department ofSocial Protection normally organises aforum in advance of the Budget. It did soagain in 2013 where FLAC participated inthe civil society consultation opportunity.However, budget decisions are notexclusive to that Department. There wasno such forum organised by the innercabinet who created and produced thebudget – the Taoiseach, Tanaiste andMinisters for Public Expenditure andreform and Finance. Nor was there anyother opportunity during the budgetaryprocesses for civil society and thoseimpacted by austerity to see whatproposals were being developed.

The Department of Social Protectionbriefing paper itself is not detailed enoughto understand how the Departmentreached its conclusions. Nor is it clearwhat use will be made by the whole ofGovernment of its findings. TheDepartment of Social Protection andother governmental departments mustinvest time in carrying out thorough,participative social impact assessmentsbefore budget decisions are made and inconjunction with civil society andvulnerable groups to truly ensure that theimpact of the budget is not shouldered bythe weakest in society.



FLAC recently hosted a group of social work students from the University of Ingolstadt in Germany. Thegroup was led by Tanja Kleibl and was keen to learn about approaches to social justice in Ireland.

Social Impact Assessment in Budget 2014:Must try harder

Read more:t You can download the

Department of Social Protectionassessment athttp://www.welfare.ie/en/downloads/SIABudget2014.pdf

German students visit FLAC




The Constitutional Convention wasa decision-making forum set up in2012 to review proposed

amendments to the Irish Constitution. It ismade up of a hundred people, sixty-six ofwhich are regular randomly selected Irishcitizens with thirty-three parliamentariansfrom North and South nominated by theirrespective political parties, and achairperson, Tom Arnold.

The last major review of the IrishConstitution was carried out in 1996 bythe Constitutional review Group. Itsreport led to the All-Party oireachtasCommittees on the Constitution (1996-97and 1997-2002). These two Committeespublished ten Progress reports on variousaspects of the constitution between them.Given the changes that have occurredsubsequently, it was decided that a furtherexamination of the Constitution should becarried out and thus the ConstitutionalConvention was formed. The first eightissues for consideration werepredetermined, but the group was free toaddress other issues once it had dealt withthose. The Constitutional Conventionaccordingly chose Dail reform and theprotection of economic, social andcultural (ESC) rights as its next two issuesfor consideration. In February 2014, itvoted in favour of affording greatconstitutional protection to ESC rights.But what does this mean?

Ireland signed the UN’s InternationalCovenant on Economic, Social andCultural rights in 1973 and ratified it in1989. However the Covenant has neverbeen enacted in domestic legislation andthe Constitution gives only limitedprovision to certain ESC rights afforded inthe Covenant, such as education and . Thismakes it nigh on impossible to enforcesuch rights in Irish law, with Internationallaw having only a weak ‘persuasive’ role inthe courts when not enacted domestically.Such rights may be legislated for directly,however it has been argued that unlessenshrined in the Constitution, many basichuman rights are open to abuse throughrepeal of such laws and lack of an effectiveremedy in the courts.

The Covenant protects a wide range ofeconomic, social and cultural rights suchas the right to work, in just and favourable

conditions, to form and join trade unions,to social security and an adequatestandard of living, to protection andassistance for the family. The Covenantalso covers rights that are not explicitlymentioned but that stem from those thatare; for example, the right to strike arisesfrom the right to form and join tradeunions. The Covenant recognises thatgovernments face resource limitations inprotecting, promoting and fulfilling theserights. However it does require that statestake immediate steps to meet their dutyhere by at least providing a minimum orcore level of protection and to deliver therights progressively over time. Howeveras mentioned above this Covenant hasnever been given legal effect in Irelandtherefore these rights are not adequatelyreflected in the Constitution currently.

The Convention on the Constitution meton 22 and 23 February 2014 to discuss thepossibility of including economic, socialand cultural rights in the Constitution.over the weekend the Convention heardexpert presentations for and against theidea, including from FLAC Board MemberDr Liam Thornton of UCD. The meetingalso included a round table withpresentations for and against the motionand a panel discussion. The Sunday sessioninvolved a ballot and a discussion of anyother amendments, ending with theresults.

Arguments against the propositionincluded fears of judicial interference inthe elected power of the oireachtas todecide how the state’s resources shouldbe allocated, and that the proposedamendment was so vague as to have manyunintended, negative consequences intothe future. However, supporters of theproposals stressed that it was vital to haveall human rights, not just some, affordedfull protection. They argued that namingthe rights to be protected by theconstitution in fact meant greater clarityfor the courts on their role and also forthe oireachtas in terms of decidinglegislation and policy goals anddetermining where to allocate scarceresources.

Ultimately, at this ninth and final meetingof the Constitutional Convention,members voted overwhelmingly (85%) in

favour of amending the Constitution toinclude economic, social and culturalrights. They were less in agreement onwhether the convention wished to makerecommendations now or whether thematter should be referred elsewhere forfurther consideration (fifty-six per centand forty-three per cent respectively).

The Convention voted to insert into theconstitution a provision “that the Stateshall progressively realise ESC rights,subject to maximum available resourcesand that this duty is cognisable by theCourts”. The Convention further votedthat the certain rights should be specifiedor enumerated in the Constitution:housing, social security, essential healthcare, rights of people with disabilities,linguistic and cultural rights and finally,rights covered in the InternationalCovenant on ESC rights.

A final report from the Convention shouldissue shortly and be submitted to theGovernment. This will mark the start offour months allocated to the Governmentto provide its position on the issuesproposed.

FLAC has campaigned over the last threeyears on the issue of realising rights in arecession and the government’s duty tomeet its international human rightsobligations despite straitenedcircumstances, up to and includingallocating national budgets. We argued forthat the only way to make decisions thatrespect people’s basic dignity - evenwhere hard and unpopular decisions mustbe made on policy and spending – is bybasing them on human rights; in a nutshell,by assessing the impact of policies andlaws from a human rights perspective. Wehope now that the ConstitutionalConvention’s work will bring us severalsteps closer to realising this vision.

Making human rights enforceable at last?The Constitutional Convention and Economic,

Social and Cultural Rights in ireland

Read more:t Read more about the

Constitutional Convention athttps://www.constitution.ie/

t FLAC’s paper on ‘RespectingRights in a Recession’ is atbit.ly/RightsRecession2011


The Council of Europe is anintergovernmental organisationthat promotes human rights, the

rule of law and democracy and has 47member states across Europe. It worksthrough several component bodies, suchas the Committee of Ministers (composedof the Foreign Ministers of member states)which is the Council of Europe’s maindecision-making body, and the EuropeanCourt of Human rights. Ireland has been amember of the Council of Europe since1949.

The European Committee of Social rightsis the Council body responsible formonitoring each Member State’scompliance with the European SocialCharter, the Council of Europe’sfoundation treaty, which was ratified byIreland in 1964 with revision of theCharter and subsequent domesticincorporation in 2000. Ireland alsoaccepted the Collective Complaintsprocedure on the same date. TheEuropean Social Charter outlines anumber of social and economic rights andfreedoms for protection in the Europeancontext. Each Member State produces anational report, which the Committeeexamines to determine whether the stateis acting in conformity with the Charterthrough its national law and practice. TheCommittee is composed of fifteenindependent, impartial experts, elected bythe Committee of Ministers for a six-yearterm of office, renewable once.

At the end of January just passed, theCommittee of Social rights published itsconclusions on how Ireland is meeting itsobligations under the European SocialCharter for 2013. Article 3 (safe andhealthy working conditions), Article 11(the right to protection of health), Article12 (the right to social security), Article 13(the right to social and medical assistance,Article 14 (the right to benefit from socialwelfare services), Article 23 (the right ofelderly persons to social protection) andArticle 30 (the right to protection againstpoverty and social exclusion) wereexamined. The Committee noted four

conclusions of conformity and eightconclusions of non-conformity for Ireland.In the remaining seven situations, theCommittee needed further information inorder to carry out the appropriateassessment which Ireland did not supply atthe time.

Ireland met its Treaty obligations on issuesincluding the maintenance of a socialsecurity system in accordance with theEuropean Code of Social Security, welfarepayments for jobseekers, people withdisabilities and tackling poverty and socialexclusion. However Ireland was found notto be in conformity in relation to areassuch as the minimum levels of socialsecurity payments, including employment,injury benefits and sickness benefits. Asnoted by Dr Liam Thornton, law lecturerat UCD and member of FLAC’s NationalCouncil, Ireland was also seen not to be inconformity in relation to issues pertainingto migrants. In particular Dr Thorntonpoints out that the insurance andemployment periods within our system ofsocial protection for EU nationals of othermember states party to the EuropeanSocial Charter was found to not be inconformity with the Charter.Shortcomings around access to healthcarefor legal migrants and the application ofthe habitual residence condition werefound to incompliant with the Charter. Arecurring issue that the Committee had inrelation to Ireland was the lack ofinformation provided on many fronts,even after specific requests. Dr Thorntonhas also commented that the report was“not as damning as it could have been”.

Ireland has a history of being the poorestcountry in engaging with the process, asnoted by Ann Cahill of the Irish Examiner.The Council of Europe has observed thatpublic policies across Europe since 2009have been unable to combat a generalisedincrease in poverty and that austeritymeasures have had a negative impact on“effective respect for human rights andespecially for social and economic rights”.It would appear this trend continuesbeyond 2013.



Read more:t Committee of Social rights

assessment on Ireland 2013:http://bit.ly/1nEBVt5

t Human Rights in Ireland blogpiece by Dr Liam Thornton:http://bit.ly/1nECjYC

A s an independent humanrights organisation, FLACrelies on a combination of

statutory funding, contributionsfrom the legal professions anddonations from individuals andgrant -making foundations to sup -port its work.

Without this generous support,FLAC could not have provided freelegal information and advice directlyto over 25,000 people last year; wecould not continue to represent DrLydia Foy in her ongoing struggle tosecure a birth certificate; and wewould not have the resources tomonitor the implementation of thelong-awaited reform of the personalinsolvency system in Ireland.

As with most NGos in Ireland atpresent, securing sufficient fundingto maintain FLAC’s services andcampaigns at a sufficient level toensure a real impact is becomingincreasingly difficult.

We are always looking for ways toinvolve new donors and supporters;if you want to find out more abouthow you can support equal accessto justice in Ireland, please [email protected]

Ireland’s record on Social Rights: European Committee of Social Rights

Examination 2013

Help makeaccess tojustice a

reality for all


A consumer of financial services,whether borrowing money,buying insurance or investing

funds, is a risk-taker who contributeshugely to economic growth in a society.Both the State and financial institutionsrely upon such participation of consumers.

Accordingly, Free Legal Advice Centres(FLAC) believes that consumers areentitled to a high level of legal protectionwhen availing of such services. But areconsumers actually receiving the requisitelegal protection, particularly consumers ofcredit whom we believe to be especiallyvulnerable, as the personal debt crisis hasdemonstrated?

FLAC's latest report, 'redressing theImbalance', examines the evidence fromthe consumer's perspective. It concludesthat from EU consumer credit directivesto the domestic system of complaintavailable to consumers unhappy with theconduct of their financial service providerand at many points in between, standardsof protection leave a lot to be desired.

It could have all been so different. TheConsumer Credit Act 1995, whichimplemented the first EU directives, cameinto operation in May 1996 and it wentfurther in some ways than the directivesrequired. However, it was poorly policedduring the credit boom. Structural flaws,such as a complete absence of controlover the rates of interest charged byprime or sub-prime credit institutions orany obligation to assess a borrower'scapacity to pay, began to revealthemselves.

By then, the EU had a further reviseddirective in the pipeline but this directivetook a 'maximum harmonisation'approach, meaning member states werenot allowed to go further in terms ofconsumer protection. Crucially missingfrom this directive was any coherentattempt to curb irresponsible lendingpractices.

It also took eight years for this directive toget from first draft to domestic legislation– Ireland in 2002 was a very different placeto Ireland in 2010.

To add complexity to inadequacy, the

transposition of the revised directive intodomestic law was done in a less than user-friendly manner, leaving the Central Bankdeciding to focus on enforcing its ownConsumer Protection Code instead of thepatchwork of legislation. The mainproblem here though is that this code onlypartially applies to credit agreements anddoes not apply at all to hire purchase (aform of credit making something of acomeback) or credit union loans.

It is also FLAC's view that the admissibilityof these codes in law is doubtful. They aredrafted, revised and amended uniquely bythe Central Bank without any apparentparliamentary oversight and form part ofneither primary nor secondary legislation.This is also the case for the Code ofConduct on Mortgage Arrears (CCMA)and the latest revision of that code isanalysed in some detail in the report.Ultimately, we conclude that this revisionleaves many struggling borrowers open torepossession without the necessary 'fairprocedure' rights of full information and aproper avenue of appeal.

When a consumer is unhappy with theconduct of a financial service provider andthe complaint is not resolved internally, heor she will be directed to complain to theFinancial Services ombudsman (FSo).recent FSo annual reports suggest thatsuccess rates are low, however. Forexample:

Q In almost one in three cases in 2012,nothing further was heard from theconsumer after his or her initialcontact.

Q A further one in five complaints in2012 was recorded as settled pre-investigation but it is unclear on whatterms.

Q only one in four cases that proceededto an investigation resulted in asuccessful finding.

Q The average award of compensation insuccessful cases in 2012 was €2,150.

For the purposes of this study, FLAC alsointerviewed a number of complainants andMABS money advisers who had contactedus in relation to complaints involving theFSo. Some expressed dissatisfaction at theprocesses involved and the lack ofindependent assistance to respond todetailed documentation from well-resourced providers.

It is clear, however, that the service as anavenue of complaint for consumers is agood idea in principle. No externalevaluation of the FSo, however, has takenplace since it was established and thisshould be remedied.

We also conducted a review of thelegislation establishing the FSo andconcluded that it too should beoverhauled in a number of respects. Forexample, consumers (or providers)wishing to appeal against an FSo findingmust do so to the High Court. This is anintimidating prospect for any consumer(and many providers) and beyond thescope of most, given the costs and the riskof an adverse costs award.

The boom and the personal debt crisis itspawned has impoverished manyhouseholds and left a deeply dividedsociety. To prevent a recurrence, it is timethat the role and the rights of consumersof financial services are properlyrecognised.

This article was first published in the IrishIndependent on 7 March 2014. It is reprintedhere w ith the kind permission o f the IrishIndependent.



Consumers of financial services arebeing badly let down by the system

by Paul Joyce, FLAC Senior Policy Analyst


Documents

Flac news spring 2014 for web