Flac winter 2013 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

Law as a vehicle for social changeMartin O’Brien delivers 7 thannual Dave Ellis Memorial Lecture

The Seventh Annual Dave EllisMemorial Lecture took place on5 December in the Pillar Room of

the Rotunda Hospital, Dublin and wasattended by over 160 people, made up ofcurrent and former FLAC volunteers, staffand interns, our colleagues in the legalprofession and wider NGO sector,members of the judiciary and othersupporters. We were particularlyhonoured this year that President MichaelD. Higgins and his son Michael attendedthe event in a personal capacity. This year’sspeaker, Martin O’Brien, human rightscampaigner and Senior Vice President forProgrammes at the Atlantic Philanthropies,was invited to speak about access tojustice. He placed a particular focus onpublic interest litigation and the law as avehicle of social change.

Peter Ward SC, Chair of FLAC’s NationalCouncil, introduced Martin O’Brien andprovided some of the context for thelecture, noting the huge funding challengesfaced by organisations in the fields ofhuman rights and social justice at presentand acknowledging the role of the AtlanticPhilanthropies in supporting FLAC overthe last number of years, in particular theircommitment to moving beyond servicedelivery and funding law reform andcampaign work, seeing these as essentialcomponents in effecting long-term andsustainable change.

Mr O’Brien began his lecture by payingtribute to the late Dave Ellis, a communityactivist who dedicated his career toworking with community groups in areasincluding welfare rights, legal aid, legaleducation and legal entitlements generally,noting that Dave Ellis was one of the first

people with whom Atlantic Philanthropiesworked when they were considering thebest approach to advancing law in thepublic interest in Ireland.

Although the law is meant to make theworld a fairer and a more humane place,Mr O’Brien observed that it often fallsshort of that goal and is not equallyaccessible by all, commenting: “Those whoneed its protection most, are often leastable to avail of it.” He mentioned the workof FLAC and other independent lawcentres such as Northside CommunityLaw & Mediation Centre in seeking tomake up for this deficit.

Mr O’Brien focused on how law can bechanged to create a fairer and accessiblejustice system, noting that while grant-makers such as the Atlantic Philanthropiescan support organisations to have animpact in this regard, they are almost

insignificant in comparison to whatGovernment could offer. He put it toattendees that government policy hasgreat potential to bring about broadersystematic change, with law central to howthis can be achieved, as it “regulates ourrelationship with the state and with othersand how we perceive ourselves and areperceived.”

Noting that it is not always necessary tocreate new laws or to extinguish old law,but often just a question of fully and fairlyimplementing laws that already exist, MrO’Brien highlighted that public interestlitigation can play a key role here. He drewon the example of the “multi-decade andstill ongoing” case of Dr Lydia Foy inpursuit of gender recognition fortransgender people in this respect.

Mr O’Brien then looked further afield toSouth Africa, noting the effective use of

Continued on page 8

L-R: Martin O’Brien, FLAC Director General Noeline Blackwell, President Michael D Higgins, CCLRP Director

Carol Coulter, FLAC Senior Solicitor Michael Farrell. Photo by Derek Speirs

FLAC News WINTER 2013 QK9.qxp_FLAC05 vol15no4 22/01/2014 17:02 Page 1

‘Social Welfare Tourism’ is a termthat has become commonplacein the media in recent times and

which has gone relatively unchallengeduntil now. The European Commissionpublished a report in October this year onthe impact of non-active Eu migrants onsocial welfare budgets. The main finding ofthe report highlighted that there is not asubstantial burden on Member States’social security systems from Eu migrantsthat move between Member States. Non-active Eu migrants mainly includejobseekers, pensioners, disabled persons,students and non-active single parents. InIreland 3% of the population is categorisedas non-active Eu migrants, reflecting thehigh intra-Eu migration to long standingEu Member States.

The study clearly showed that mobile Eucitizens do not use social security systemsmore intensively than nationals of theirhost countries and that generally,economically non-active Eu citizens inMember States account for an insignificantnumber of welfare beneficiaries. Thus theeffect on social security budgets isrelatively low. Eu migrants were onlyaccountable for 1% to 5% of Eu-widenational social welfare budgets. Ireland’sfigure of just over 5% was an estimate anddid not disaggregate between applicantsand beneficiaries for the purpose of thisresearch; as such, this figure does notaccurately reflect the numbers of Eumigrants accessing social security inIreland which would result in a lowerfigure than that supplied by thegovernment.

The Eu Commissioner for Employment,Social Affairs and Inclusion was quoted assaying that “…the majority of mobile Eucitizens move to another Member State towork and [the study] put into perspectivethe dimensions of the so-called benefittourism which is neither widespread norsystematic.” However, the Commissionerdid state that he could understand how asudden large influx of people from otherEu countries could put a strain on certaingeographical areas within a country,leading to problems with housing,education and infrastructure. He said hewas prepared to engage with MemberStates and to help municipal authoritiesand others use the European Social Fundto its full extent.

The study also went on to find that mobileEu citizens appear to be employable morereadily than the nationals of the hostcountry in which they reside and that thenumber of mobile Eu citizens employed inhost countries has increased dramaticallyover the last seven years. Most mobile Eucitizens had been employed previously intheir country of origin prior to migratingand the number of inactive Eu citizens inMember States is currently slightly lessthan 1%.

Finally, the study recognised that the costsassociated with healthcare for non-activeEu citizens in Member States arenegligible relative to the size of totalhealth spending and the size of theeconomy of the host country.

The report also exposes deficiencies indata collection in Member States,evidenced in the methodology section, inparticular in Ireland in terms of thenumbers of Eu migrants in receipt ofsocial security payments.

The issue of ‘welfare tourism’ has beensimilarly contentious in the uK,particularly in light of the newly proposedimmigration bill whose main aim is toprevent illegal immigrants and to ensurethat migrants are prevented from claimingbenefits to which they have noentitlement. However, it was recentlydiscovered that the British governmenthas no records of the number of non-British Eu citizens claiming welfarebenefits.

With the publication of the report, EuCommissioner for Justice, FundamentalRights and Citizenship Viviane Redingproposed a five-point plan to crack downon benefit abuse in Eu states andproposed putting measures in place tomake them more aware of the habitualresidency guidelines so that memberstates will be better able to understandwhat the welfare entitlements of mobileEu migrants are in their host country.Finally, Commissioner Reding proposed atop-up of the European Social Fund andgreater assistance for local authorities tohelp them to better understand Eu freemovement rules.

Download Report at: bitly/1dQrMqi

flac News | Vol. 23, No. 4

in this edition...Law as a vehicle for social change 1 & 8

De-bunking the myth of “Welfare Tourism” 2

Coroners Juries selected by Garda: Time to reform system 3FLAC legal information videos launched 3

Steady rise in calls to FLAC by Q3 of 2013 4More bankruptcy law changes 4

‘A tax on the poor’: Changes to Legal Aid scheme damaging access to justice 5

Pre-budget forum allows NGO input 5

Transgender Recognition Bill deeply flawed 6

International body to intervene in Foy case 7

Child Care Law Reporting Projectlaunches interim report 7

Social security schemes across Europe 9

ESC Rights for Convention? 9

Focus on FLAC:FLAC Student Societies 10

Focus on FLAC:Yvonne O’Sullivan, Policy & Advocacy Officer 11

Civil legal aid changes - FLAC legalresources update 11

PILA update:

PILA Progress Report launched 12

Staff updates 12

Putting Equality and Human Rights into Budgeting 13

Social Welfare & Pensions Bill 2013 14

Northside Community Law & Mediation Centre hosts social welfare roundtable 15

2014 Fellowship application process has begun 16

uN High Commissioner for HumanRights visits Dublin 16

Funding FLAC 16

FLAC NEWS is published quarterly by Free LegalAdvice Centres Ltd., 13 Lower Dorset Street, D1.

Editors: Noeline Blackwell, Emma Cassidy & YvonneWoods

Layout & Printing: Printwell Design, D3

Contributors: Ollie Browne, Emer Butler, EmmaCassidy, Megan Crenshaw, Michael Farrell, ColumbFortune, Ciarrai Healy, Gillian Kernan, EmmaMcCarron, Geraldine Murphy, Yvonne O’Sullivan,Yvonne Woods, Zsé Varga Photos by FLAC, Derek Speirs, Eric Luke.The views of individual contributors do notnecessarily represent the views of FLAC.

ISSN 07914148

De-bunking the myth of“Welfare Tourism”

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FLAC has campaigned for a numberof years against the exclusion ofdeaf persons from serving on juries

in Irish courts. We have pointed out thatdeaf people serve successfully in uS courtswith the assistance of sign languageinterpreters. So when uS law studentMegan Crenshaw came to work withFLAC last summer, we asked her toexplore the position about deaf peopleserving on juries at coroners’ inquests.We thought that there might be lessresistance to this than to deaf personsserving in criminal trials since no-one’sliberty is at stake in the coroners’ courts.

Megan found that the coroners’ courtsexclude deaf people but she also found outthat coroners’ juries are generally selectedby Gardai and that there is no procedureto try to ensure that they represent across-section of the population, unlike theposition in the criminal courts. As Meganwrote: throughout Ireland, coronersinvestigate the circumstances of sudden,unexplained or violent deaths and thesestate-appointed doctors and lawyers seekto establish whether a death was due tonatural or unnatural causes. In cases inwhich the latter is suspected, coroners arerequired by law to hold an inquest, a publicinquiry into the cause of death, and in

many cases they sit with a jury as a way ofinvolving the man or woman in the streetin this important process.

When it comes to selecting this jury,however, the only guidance availablecomes from the Coroners Act of 1962,which states that whenever a jury isrequired for an inquest, the coroner mustinform a member of the Garda Siochana,who will then assemble a jury of six totwelve people. The statute fails to establisha particular manner in which to select ajury and a a result, neither the Garda northe Coroner’s Office have any clearprocedure for doing so.

According to Dublin City Coroner DrBrian Farrell, his office generally relies onthe Garda to summon juries. A Gardamember contacted by FLAC explainedthat upon receiving such requests toassemble coroner’s juries, Gardai typicallygo to the nearest office block seekingvolunteers.

The Coroner’s Office sometimesempanels a jury itself, for example in casesinvolving police shootings or deaths inpolice custody, and when they do so, theoffice uses a variety of differenttechniques. According to Dr Farrell, thesemethods include using the electoral

register, referencing a database of peoplewho have applied to be jurors, or simplyputting out alerts to city councils.

Regardless of whether the Garda or theCoroner’s Office conducts the em panel lingprocess, the use of such arbitrary andinconsistent jury appointment processescreates a system lacking transparency andaccountability. This contrasts with themethod of selecting juries in criminal cases,where the Courts Service goes toconsiderable lengths to select names atrandom from the electoral register so as toobtain a representative cross-section ofthe population. The current system forcoroners’ juries tends to favour whitecollar workers who are in employment andexcludes the unemployed, older personsand, of course, the deaf would-be jurorswhom FLAC has been campaigning for.

A Coroners Bill that would improve thesystem, but would still not allow deafpersons to serve, was introduced in theOireachtas in 2007 and re-introduced in2011. It is high time it was properlydiscussed, amended to include deafpersons and other persons withdisabilities or “impairments”, and passedinto law.


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Lights, camera, action: FLAC legal information videos launched

Ever wondered how Ireland’s court system works? Are youvisiting a court for the first time and are not sure what to do?Or have you ever received aletter and been a bit baffled bylegal terminology?

To help answer these questions,FLAC have prepared a series ofshort information videos to helpshed some light on legalprocedures and systems.

The videos were officiallylaunched by Director General,Noeline Blackwell at FLAC’sDave Ellis Memorial Lecture andwere planned, created (and evenacted) by FLAC interns.

FLAC is very appreciative of thesupport it received from the

Ireland Funds Grant Round for this work. So far, the seriesincludes:

• an introduction to the Irishcourt system;

• an introduction to appearingin court; and

• an introduction to courtdocuments.

You can watch them on FLAC’sYou Tube channel atyoutube.com/flacireland.

Alternatively, you can view themon our website. FLAC plans to addto this information series in 2014– please keep an eye on ourwebsite for updates.

Coroners’ Juries selected by Garda: Time to reform system


F L A C N E W S l O C T O B E R - D E C E M B E R 2 0 1 34


Steady rise in calls to FLAC by Q3 of 2013

L ong-awaited changes to Ireland’sbankruptcy laws were finallybrought into effect on 3 December

2013. Minister for Justice Alan Shatter’ssignature of the relevant commencementorder reduces the bankruptcy time framefrom 12 years to three. This means thatindebted individuals now have thepossibility of emerging from bankruptcyafter only three years. The reduced timeframe is not absolute, as FLAC havepointed out in the aftermath of thechanges. It is true that bankruptedindividuals can be discharged after threeyears; however income payments orderscan mean that the same individual could bemaking payments to the Official Assigneefor a period of up to five years. FLAC

summarised the main changes to thebankruptcy regime as follows:

• Discharge period will be down from12 (or even 20) years to 3 years

• A person must be insolvent with debtsexceeding assets of €20,000 or more

• A person will be able to apply for theirown bankruptcy but only if they havefirst considered a personal insolvencyarrangement or debt settlementarrangement

• Creditors will still be able to apply tobankrupt a person if the debt owed isover €20,000

• A feature of the new rules will allow

for an order to be made where abankrupt person will have to payincome to creditors for 5 years. If thisorder is made at the end of thebankruptcy, the bankrupt may bepaying creditors for up to 8 years

• Bankruptcy will still be a painful, messyaffair with costs to meet

The Insolvency Service of Ireland haspublished a Debtors Guide to Bankruptcy anda set of hypothetical bankruptcy scenarios.Both of these documents are available todownload from the ISI website at:

• http://www.isi .gov. ie/en/ISI/Pages/New_Bankruptcy

Calls to FLAC’s telephone informationand referral line rose by eighteen percent during the first three quarters of

2013 compared with the same period last year.June, July and August were particularly busy thisyear compared with a quieter summerexperienced last year.

Family law queries remain the most commonarea of law discussed on the phone line, as wellas in the centres, with divorce / separation themost frequent family law query. Legal serviceshave become the second most common areaof enquiry, with more than eighty per cent ofthese callers looking for details of their nearestFLAC centre.

Compared with the first nine months of 2012,housing/landlord and tenant calls have seen thelargest increase, rising almost two fold. Legalservices calls rose by 86 per cent highlightingthe growing demand for information aboutFLAC centres. In the centres, the total numberof callers recorded is up six per cent comparedwith the same period last year. Seventy-one ofthe currently operating FLAC centres arereturning data at present, which is roughly thesame as last year.

Family law queries continue to rise in thecentres, up over 6 per cent on 2012.Employment law queries, while down slightly,are the second most common query in thecentres. This is followed by credit and debt-related queries which have shown the highestincrease over last year, and then by immigrationlaw queries.

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T he last issue of FLAC News lookedat the recent legislative changesto the state civil legal aid scheme.

Introduced by Minister for Justice, Equalityand Defence Alan Shatter TD on 12September, Statutory Instrument 346 of2013, ‘Civil Legal Aid Regulations 2013’,made substantive changes to a qualifyingperson’s access to justice, including:

a) an increase in the minimum financialcontribution for legal advice from€10 to €30;

b) an increase in the minimum financialcontribution for legal aid(representation) from €50 to €130;

c) a cut in the overall disposable capitalthreshold allowance for eligibilityfrom €320,000 to €100,000.

These draconian changes must beconsidered from a human rightsperspective. Is the State satisfying equallythe unmet legal need of Irish citizenswhose means preclude them from seekingprivate legal representation, as is itsconstitutional and internationallyrecognised obligation?

uN Special Rapporteur on theIndependence of Judges and LawyersGabriela Knaul makes two clear andcogent points in a 2013 report: firstly, that“legal aid is an essential element of a fair,humane and efficient system of administra -tion of justice that is based on the rule oflaw. It is a foundation for the enjoyment ofother rights, including the right to a fairtrial and the right to an effective remedy, aprecondition to exercising such rights andan important safeguard that ensuresfundamental fairness and public trust inthe administration of justice.” (1)

It is no great revelation that thefundamental aim of a system of legal aid isto eliminate any barriers or obstaclesimpairing the individual’s access to justiceand to an effective remedy.(2)

What is particularly noteworthy is theSpecial Rappor teur’s second point: “Statesbear the primary responsibility to developand implement an effective and sustainablelegal aid system that draws frominternational human rights standards andrecognized good practices.” (3) The most

important principle to draw from thisparticular comment is the requirementthat the system be both effective andsustainable.

While the Special Rapporteur deliveredher comments in light of having visitedPakistan, El Salvador and Maldives,nonetheless this principle is one thatapplies to all States who are members ofthe uN, Ireland included.

To date, the Civil Legal Aid Act 1995 hasbeen significantly altered and amended byway of regulatory changes, a practice notuncommon in Irish legislation. However,several of the changes introduced on inSeptember by Minister Shatter are someof the most disproportionate to come tothe civil legal aid system in Ireland.(4) Norcould they have been introduced at a moredifficult time.

FLAC has welcomed the removal of thefinancial contribution for those defendingproceedings issued by the HSE in relationto a child being taken into state care.However the hike in the minimum financialcontribution offsets this advance.

It is a sad fact that any increase incontributions to be made to the Legal AidBoard, which is the state-funded body incharge of civil legal aid, will serve only tofurther exclude people who are alreadytoo poor to afford legal representation.FLAC Director General Noeline Blackwell

has referred to the increases as “a tax onthe poor”.

Minister Shatter has said he believes theincrease in contributions will net up to€700,000 for the Legal Aid Board, citing anincrease in demand for services as therationale for higher charges. (5) In reality,the purported financial benefit to theBoard by this unprecedented increase incontribu tions is negated by the harshreality that increased fees will create aninsurmountable obstacle for those on thevery lowest incomes who need civil legalaid in Ireland.

As the Legal Aid Board comes underincreasing pressure, with more and morepeople finding themselves unable to affordprivate legal advice or representation,questions must be raised: is it supportableand defensible to intro duce furthermeasures which, in essence, prevent thepoorest people in Irish society frompractically enforcing their basic constitu -tional and international human rights? Isthe civil legal aid system in Ireland effectiveand sustainable – making a real differenceto people who need legal help – or is theright to civil legal aid in Ireland becomingmore and more an abstract rather than areal remedy?

Notes:

1. u.N. General Assembly, 23rd Session,Agenda Item 3. “Report of the SpecialRapporteur on the Independence ofJudges and Lawyers” 15 March 2013(A/HRC/23/43).

2. See Access to Justice: A right or aprivilege? A Blueprint for Civil Legal Aid inIreland, FLAC, 2005

3. Also in Access to Justice: A right or aprivilege?

4. Statutory Instrument No. 346 of 2013,‘Civil Legal Aid Regulations 2013’.

5. See press release from theDepartment of Justice and Equality,“Minister for Justice Equality andDefence announces changes to CivilLegal Aid” available athttp://www.justice.ie/en/JELR/Pages/PR13000338 (accessed 11/10/2013).



‘A tax on the poor’: Changes to Legal Aidscheme damaging access to justice




FLAC has represented transgenderwoman Dr Lydia Foy since shecommenced legal proceedings in

1997 seeking formal recognition in herpreferred female gender. FLAC continuesto represent her in new legal proceedingsissued in January 2013 to enforce theruling of the High Court given in herfavour in October 2007. This landmarkvictory ruled that the Irish governmentwas in breach of its obligations under theEuropean Convention on Human Rightsand must legislate for the recognition oftransgender identity in Ireland. And sincethe Irish government withdrew its appealin June 2010, Ireland has been under aclear legal obligation to provide legalrecognition to transgender persons.

However 20 years after Lydia began herstruggle, we still await a law. A draft Headsof Bill was issued by the Department ofSocial Protection in July and FLACsubmitted its concerns around some of itsprovisions in September. In October, FLACwas invited along with several othergroups to discuss these concerns beforethe Joint Oireachtas Committee onEducation & Social Protection. Thesegroups ranged from rights organisationslike Transgender Equality Network Ireland(TENI) and parent support groupTransparenCI to the Equality Authorityand Amnesty International as well asmedical and legal experts and theDepartment of Social Protection itself.

On 24 October 2013, the second of twodays of debates, FLAC appeared before theCommittee represented by DirectorGeneral Noeline Blackwell andCommunications Officer Yvonne Woods.FLAC welcomed elements of theproposed Scheme, such as the fact that itdoes not propose to require genderreassignment surgery or other specifiedmedical treatment as recognition pre-condition. However the organisationoutlined a number of serious concerns:

a) Forced divorce: Head 5 (d) of theScheme of the Bill would require couplesto divorce as a condition for recognisingthe transgender partner in her/hispreferred gender, given that Ireland doesnot recognise same-sex marriage. A smallnumber of transgender persons will havemarried in their originally assigned gender,and while in many cases the strainsinvolved will have already led to the break-

up of the marriage, in other cases thecouple wish to remain married. Thus theproposed law will effectively force thesecouples to end a marriage. This maycontravene the legal requirements fordivorce – that the couple be living apartfor four of the previous five years and thatthe relationship be irretrievably brokendown. Furthermore, other Eu jurisdictionswhich do not have same-sex marriage haveremoved the divorce requirement forgender recognition and prominentEuropean rights bodies have spokenagainst such provisions. FLAC argued thatrecognising the preferred gender of aperson who is already married would notcreate a new marriage, simply that thesame marriage would continue.

b) Minimum age limit: under Head5(d), certificates will only be issued tothose aged at least 18 on date ofapplication. Since FLAC’s submission tothe Gender Recognition Advisory Groupin 2010, the organisation has learned thatmany young persons become conscious oftheir true gender identity during theirteenage years or even younger. In this light,we suggested that the minimum age for fullrecognition should be 16, the age at whichyoung persons can consent to medicaltreatment. FLAC also proposed thecreation of a provisional or temporaryGender Recognition Certificate for peopleyounger than 16 which could be renewedor converted into full Gender RecognitionCertificates.

c) Medical certification: Head 6suggests that the primary documentrequired for the issue of a GenderRecognition Certificate would be astatutory declaration by the applicant.

FLAC welcomed this as a move away fromthe medical disorder model that basesgender recognition on medical evidence.However, Head 6(vi) requires a supportingstatement from a treating physician, whichappears to reintroduce an emphasis onmedical treatment. FLAC suggested that ifstatements are required to support thestatutory declaration of the applicant,these could be supplied by one or more ofa number of persons with knowledge ofthe applicant’s circumstances - medicalpractitioners, counsellors, social workers,teachers etc.

d) Gender identity as equalityground: Finally, FLAC suggested that theBill should contain a provision amendingthe Equality Acts to include GenderIdentity among the “discriminatorygrounds” listed at Section 6 of theEmployment Equality Act 1998 asamended and Section 3 of the Equal StatusAct 2000, as amended. FLAC argued forthe educational effect of prohibitingdiscrimination on a particular ground, as ithelps to raise awareness around theparticular vulnerability of minority groups.

While the Committee said that they hadlearned much from the variouspresentations, we now await theirobservations and recommendations to theMinister for Social Protection. For the sakeof all transgender people in Ireland andtheir families, and after all the years theyhave waited for recognition and clarity, wehope that this will come soon and be asstrong and inclusive as possible.

• Read a transcript of the hearingonline at http://bit.ly/JOzB4S.

• You can read our submission athttp://bit.ly/FLAC_TGBill13

T R A N S G E N D E R R I G H T S :

Transgender Recognition Bill deeply flawed

On 13 November, Lydia Foy andFLAC’s Yvonne Woods joinedtransgender rights group TENI in

visiting Aras an uachatarain at the invitation ofPresident Michael D Higgins. With his wife MrsSabina Higgins, the President met the 10-person group and listened to concerns andwell as expressing solidarity and support.TENI’s Orlaith O’Sullivan presented him withtheir latest report and annual review afterwhich the group had a tour of the Aras. We areso grateful to President Higgins for hisgenerous invitation and for his encouragement.

Lydia Foy meets President Higgins with TENIDirector Broden Giambrone (centre)

Transgender group visits President Higgins

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In a landmark move, the High Courthas granted standing to the Inter -national Commission of Jurists (ICJ) to

intervene as amicus curiae in Lydia Foy’snew proceedings to secure recogni tion inher female gender.

Composed of 60 eminent judges andlawyers from all over world, the ICJpromotes and protects human rightsthrough the Rule of Law, by using its legalexpertise to develop and strengthennational and international justice systems.

Mr Justice Gilligan opened his judgment on20 December by observing that theplaintiff Lydia Foy had previously issuedproceedings in which a declaration ofincompatibility with of the EuropeanConvention on Human Rights (ECHR) wasissued. He noted that since then, she hadfiled new proceedings seeking recognitionand to give effect to that declaration.

The judge noted that in its application, theICJ had limited itself to discussing the needfor an effective national remedy forbreaches of the ECHR. He said the

jurisdiction to seek to intervene as anamicus curiae in such cases is not in doubt.

He referred to a previous case, in whichthe uNHCR had been allowed tointervene as an amicus, and went on todiscuss another case where it was heldthat an applicant must have a bona fideinterest in the issue at hand. He alsostressed the importance of there being apublic law dimension and that theapplicant’s interest must be a general onerather than a sectional interest.

The judge noted that the ICJ had stressedthat they had a bona fide interest in theproceedings and had clearly shown thatthey have substantial experience in amicus

applications. He also observed that the ICJhave a public law dimension to their work.

Mr Justice Gilligan referred to anothercase where the court had ruled that theapplicant was not capable of providing thecourt with a perspective on matters ofprinciple or public importance whichwould not otherwise be available to it. Hesaid this was not the situation in the ICJ'sapplication He was satisfied that the ICJbrought a certain perspective on mattersof principle and public importance inrelation to the main Foy proceedings. Thejudge therefore granted the application.

The ICJ’s intervention shows theimportance of this case, both in relation tothe rights of Lydia Foy and othertransgender persons and in testing theeffectiveness of the ECHR Act 2003, whichwas intended to give direct effect to theECHR in Irish law. Clearly the decision inFoy will be watched carefully in other Eucountries and further afield. JudgeGilligan’s decision also clarifies criteria tobe met by other bodies seeking tointervene as amicus curiae in other cases.

Following the launch of its dedicatedwebsite in April 2013 and on-goingpublication of case summaries

(volume 4 went live in Decem ber), theChild Care Law Reporting Project launchedits first Interim Report on 5 November2013. The report provides analysis andstatistical coverage of how cases where thestate seeks to take children into care aredealt with in Irish courts.

The Interim Report was launched at theOrmond Meeting Rooms by Chief Justice,Mrs. Justice Susan Denham. Also inattendance were members of the Project’sOversight Board as well as Minister forChildren and Youth Affairs, FrancesFitzgerald TD, Ombudsman for Children,Emily Logan and President of the DistrictCourt, Judge Rosemary Horgan.

Launching the report, Chief JusticeDenham acknowledged that while it couldonly provide a snapshot in time, theCCLRP Interim Report still had “…directrelevance for those involved in the childcare system and for policy makers”. Shealso paid tribute to the work of ProjectDirector, Dr Carol Coulter and her

tireless reporting team who visit courts allover the country to compile case reports.

The interim report provides an overviewof 83 cases accessible on the Project’sown website and detailed analysis of some333 court cases attended by the CCLRPreporting team between December 2012and July 2013.

Without the CCLRP, these 300 caseswould have been unreported. Chief JusticeDenham pointed out that the project“balances the in camera rule withsensitivity by protecting the privacy ofchildren and their families who are part ofthis study and yet bringing the relevantinformation into the light”.

The report suggests developing trends andprovides statistics that supplement thosecurrently available from the CourtsService. Chief Justice Denham pointed outthe sobering fact that we do not live in aperfect, utopian society and that “…therevelations of child neglect and abuse inIreland should place child protectionissues, including the reporting of suchcases, high in our national debate”. Thecases detailed in the Interim Report

support this sentiment. Neglect is themain reason for care orders being sought,comprising more than one in five casescited.

The CCLRP was set up in November 2012to report on child care proceedings takenby the HSE. It is an independent projectwith joint funding from AtlanticPhilanthropies, the One Foundation andthe Department of Children and YouthAffairs. It is supported by FLAC and theChildren’s Rights Alliance.

• Read more at www.childlawproject.ie

Child Care Law Reporting Project launches Interim Report

L-R: FLAC Director General Noeline Blackwell,CCLRP Director Carol Coulter & Chief Justice

Susan Denham

International body to intervene in Foy caseBREAKING NEWS:




public interest litigation by organisationssupported by the Atlantic Philanthropies.This has resulted in 2 million peoplereceiving anti-retroviral treatment for HIVand a significant reduction in the perinataltransmission of HIV/AIDS. This successamongst others in South Africa, he said,shows clearly the scale of what can beachieved through litigation.

He added the important caveat however,that “litigation on its own will often fail todeliver the desired change” and that itmust be complemented by greater publicawareness and information about people’srights, by access to advice and supports forpeople in claiming their rights, and bybroader social mobilisation around theissue at hand: “In short and perhaps mostimportantly rights have to be assertedboth inside and outside the courts.”

Reflecting on an evaluation carried out inSouth Africa that identified eight factorsessential to successful litigation, MrO’Brien listed: proper organisation ofclients, an overall long term strategy, co-ordination and Information sharing, amicuscuriae interventions, good timing, goodresearch, correct characterisation/framingof the legal issues involved, and effectivefollow-up.

He added that success requires dedicatedand talented lawyers who have thetenacity, patience and resources to keepworking on an issue, often for far longerthan could ever have been originallyanticipated. Here again, Mr O’Brienpointed to the Lydia Foy case referring tothe Irish government’s “shameful failure”to align the law with the six-year-olddecision in this case.

Concluding, Mr O’Brien referred to BryanStevenson, a death row and racial justicelitigator in Alabama. He drew on some ofStevenson’s reflections, such as “theopposite of poverty is not wealth butrather justice”; that to secure justice in animperfect justice system you must knowand understand what it is that people aregoing through; and that we must behopeful that change is possible. MartinO’Brien closed his speech by referringback to Dave Ellis as exemplifying each ofthese points and that they are seen to beat the heart of FLAC’s work and that of itscolleagues in the public interest lawcommunity.

Since the first Dave Ellis memorial lecturein 2007, the annual event has gone from

strength to strength and is an importantfixture on the FLAC calendar. As well asthe lecture itself, it is an opportunity togather friends and supporters of FLAC toreflect on the year gone by and to lookforward to the year ahead. Also at thisyear’s event, the Thomas Addis EmmetFellowship 2013 was presented to VanessaLawlor of uCC, FLAC volunteers andmembers of PILA’s pro bono referralscheme were presented with awards forlong service, and PILA’s latest ProgressReport was launched.

Martin O’Brien is currently Senior VicePresident for Programmes at the AtlanticPhilanthropies. Before joining Atlantic in2004, Martin spent 17 years coordinatingthe work of the Committee on the

Administration of Justice (CAJ), anorganisation dedicated to securing thehighest standards in the administration ofjustice in Northern Ireland. Martin haswritten, spoken and publically campaignedon a wide range of human rights and civilliberties issues and was particularly activein securing string human rights protectionsin the Good Friday Agreement. He is a pastrecipient of the Reebok Human RightsAward and his work in Northern Irelandhas been honoured by Human RightsWatch and Human Rights First. In 2001,Martin O’Brien was profiled as one of 51influential human rights activists aroundthe world by Robert F. Kennedy Centerfor Justice and Human Rights.

7 t h A n n u a l D a v e E l l i s M e m o r i a l L e c t u r e : Continued from front page:

Top: Martin O’Brien addresses attendeesat the Dave Ellis Memorial Lecture.

Above: President Higgins meets Brian Ellisand Robert Ellis, relatives of Dave Ellis.

Right: Martin O’Brien




On Wednesday 2 October,FLAC’s Yvonne O’Sullivanand Columb Fortune

attended a trESS (Training andReporting on European SocialSecurity) seminar. The seminarfocused on the coordination of socialsecurity in Europe in the context ofthe impact of economic crisis andincreasing levels of unemployment.Magdalena Ciesielka and AlbrechtOtting of the Eu Commissiondiscussed recent developments in thearea of intra-European social securityprovisions, including Regulation465/2012, Directive 2011/24 andrecent jurisprudential developmentsfrom the European Court of Justice.

In discussing Regulation 465/2012, theCommission representatives outlinedthe significance of a new provision.Article 65(a) provides for a protectionfor formerly self-employed frontierworkers who were covered in theMember State of last activity, butwhose Member State of residencedoes not have an unemploymentbenefits scheme. This means that theMember State of last activity will paythe unemployment benefits, providedthe person registers with theemployment services in that MemberState and is available for work there.

Regulation 465/2012 also introducedchanges in the rules where a person isworking in two or more MemberStates – the legislation of the MemberState of residence applies only if a‘substantial part of activities’ ispursued there.

Another topic raised at the seminarwas the rather politically sensitiveissue of ‘Residence’ and whether thehabitual residence conditions (HRCs)as outlined in the Directive are beingcorrectly and uniformly applied byindividual Member States.

Prof. Dr Maximilian Fuchs, joint authorof an analytical study on“Coordination of unemploymentBenefits”, gave an in-depth summaryof recent caselaw from the EuropeanCourt of Justice on what rules orregulations can be applied in cross-border European social securityprovisions. Issues arose aroundstudents, pensioners and inactivemobile people, and whether any singlerule applies to their situations.

trESS noted that the foundation uponwhich the coordination of unemploy -

ment benefits is founded, is theprinciple of free movement ofworkers, but that issues arise wherecertain member states continue tooperate a protectionist approach totheir own national workforce.

Overall trESS proposes that theexclusive competent state – that is,the state with the obligation to payunemployment benefits – should bethe state of last employment. trESSsuggest that the burden to pay thebenefit should rest on that State.

Social security schemes across Europe

T he Constitutional Conventionhas been tasked by theOireachtas with considering

twelve particular issues either that shouldbe provided for in, amended or removedfrom the Constitution. The Convention ismade up of a hundred members that arerepresentative of Irish society includingparliamentarians working within atimeframe of twelve months.

The Convention has been holding publicmeetings and debates on each of theissues put forward by the Oireachtaswhich are then voted on forrecommendation to the Government forinclusion in the Constitution. To datetwenty-four issues have beenrecommended with three issuessuccessfully given approval forreferendum by the government, theseinclude legal provision for marriage forsame-sex couples, lowering the votingage to sixteen and reducing the age forpresidential candidates as well as citizensoutside the State being involved in thenomination process.

In February 2014, the Convention willconvene for the final time. Six issues havebeen finalised by the Convention for votein mid-December, amongst these areenvironmental rights, economic, socialand cultural rights, political andinstitutional reform, the church and state,

the family and issues of mortality and abill of rights.

FLAC, as part of the Economic, Social andCultural Rights Initiative, has campaignedwith other not-for-profit organisationsfor recognition of economic, social andcultural rights in legislation through arange of different actions. A jointsubmission was forwarded to theConvention for their attention outliningthe need to have such rights explicitlyprotected by the State. Ireland ratifiedthe International Covenant on Econo -mic, Social and Cultural Rights in 1989committing the State to legal obligationsto uphold economic, social and culturalrights. Currently the Constitution doesnot comprehensively provide for theserights and the Convention is the perfectopportunity to discuss the importance ofhaving all human rights included on anequal legal footing in the law.

The Constitutional Convention’s websitehas been open for submissions fromindividuals and organisations with eachsubmission titled under a specific issuefor the Convention to consider. TheConvention has experienced greatsuccess to date and FLAC hopes thateconomic, social and cultural rights willbe amongst the other issues forrecommendation to the Government.

ESC Rights for Convention?


Student FLAC societies in collegesand universities provide an idealopportunity for third-level law

students to step outside of the theoreticallearning environment of the lecture hall.They allow them to gain a freshperspective on the law from a practicalstandpoint by assisting in clinics with aqualified solicitor or barrister.

This year FLAC societies are thriving, withhigher membership as well as a strongerpresence on campuses, providing advice tostudents and college staff with legalquestions and woes as well as runningcampaigns and awareness events. Manywell established societies are faringincredibly well this term with a host ofclinics, events and campaigns underwayand other colleges are now in the processof setting up their own FLAC society.

Trinity FLAC Society has been verybusy so far this year and seems to have nointention of slowing down. Membershipnumbers tripled in September andattendance at its legal advice clinics is up500% due to increased presence oncampus and Student union advertising.Recently, Trinity FLAC has launched a legalinformation booklet aimed at collegestudents entitled “Know Your Rights”,which covers areas relevant to studentssuch as landlord/tenant law, employmentlaw, cyber law, the right to protest andGarda powers and rights on a night out.

Trinity FLAC has run numerous campaignsand events since the start of term,including a strong campaign on Prisoners’Rights which featured a debate inconjunction with the Philosophical Societyon the motion that the death penalty hasno place in the rule of law, a talk by theIrish Penal Reform Trust and a letter-writing campaign which garnered morethan 300 signatures. It has also hosted atalk on Direct Provision with HonoraryPresident of Trinity FLAC, the Hon. MrsJustice Catherine McGuinness, and SueConlon, CEO of the Irish Refugee Council.This along with an event on the topic ofData Protection co-hosted with the DuPirate Party. In December 2013, TrinityFLAC is planning a campaign aroundHomeless Rights, with speeches, aresearch project in conjunction withDublin City Council and a sleep out withthe VDP in order to raise awareness of

homelessness among students.

NUI Maynooth FLAC got off to agreat start this year with membershipreaching 126, a diverse range of studentsgetting involved from 1st year to PhDlevels. Currently Maynooth FLAC is in theprocess of setting up mock clinics toeducate 1st and 2nd year students and givethem some practical experience involunteering in the clinics. This year thesociety has over 90 trained volunteers,which is a massive increase from 43 lastyear. With the assistance of solicitorsDeirdre McGowan and Susan Webster andbarrister Owen Donnelly, Maynooth FLACruns clinics fortnightly, which have beenvery much in in demand to date. Fortraining purposes, it has also had speakersin to talk about relevant legal topics tostudents, the most recent being landlordand tenant law.

Griffith College Dublin FLAC iscurrently running fortnightly clinics forstudents and staff. There has been steadyinterest from the student body in theFLAC clinics this year and recently GCDFLAC has started to run a blog, whichallows members submit articles on legalissues such as how to register to vote andlandlord and tenant rights. As well as theblog, GCD FLAC has started an e-newsletter which provides information on

the recent referendum and FLAC updates.Currently the society is looking into aresearch project on youth justice and theyhad the IPRT’s Fíona Ni Chinnéide come into discuss aspects of their work in relationto youth justice. Though this researchproject is in its preliminary stages, GCDFLAC is looking to complete it by the endof next semester.

A group of dedicated students in CarlowIT is currently setting up their own FLACsociety. They have just put together theirSociety’s draft constitution and are noworganising mock clinics and traininglectures for students looking to getinvolved.

On 6 December, FLAC held one of its bi-annual national student society meetingswhich brought together FLAC societymembers from Griffith College Dublin,Trinity College, DCu, NuI Maynooth andCarlow IT in Dublin to discuss progress sofar this year, plans for the future andpossible joint projects. The societies planto meet again in February 2014.

A large thank-you to Shauna Stanley, JamesDooley, Sean Tynan, Jacinta Lynch andEmmy Marshall.

FLAC soc members should check outour new FLAC Societies page onFacebook.


Inside FLAC: FLAC Student Societies


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

Some of volunteers honoured at the award ceremony on 5 December - read more on page 8. L-R:FLAC Chairperson Peter Ward SC, Angel Bello Cortez, Beatrice Cantalejo BL, Innocent Chukwuezi BL,Maria McDonald BL, Paula King, Katie Dawson BL, Barbara Sherry, Helen Moakley, Brian Connolly,

Susan Webster, FLAC Volunteer Manager Zsé Varga.

FLAC Volunteers honoured in ceremony




W ith a wealth of experience inthe human rights sector,Yvonne O’Sullivan joined

FLAC as Advocacy and Policy Officer inSeptember 2013. Her involvement withFLAC began as a Legal Intern, where sheprovided legal information on FLAC’s legalinformation and referral phoneline, Shealso worked on the organisation’s legal aidcampaign. During her internship, Yvonneundertook a course in welfare rights runby the Irish National Organisation of theunemployed. Her interest in welfare rightsstemmed from a previous internship withthe Migrant Rights Centre Ireland as LegalAdvocacy Intern. At the MRCI, Yvonnefrequently met with clients who wereexperiencing destitution which motivatedher to gain a deeper understanding of theintricacies of the Irish welfare system.Yvonne has always found direct clientcontact hugely rewarding as it allows herto realise the gaps, along with theshortcomings of the government’s policiesand practice: “Each and every system can,and needs to be, improved for the sake ofcivil society and vulnerable individuals.”

Yvonne’s advocacy role on behalf ofundocumented migrants at the MigrantRights Centre Ireland reinstilled this belief:“The experience shone a light on the hugeportion of the population that exist inlimbo but for whom no answers are givenby the State. This group of people are afraidof being noticed, yet the only way for themto become legalised is to presentthemselves to the relevant authorities.” Thecomplexity of issues surroundingundocumented migrants made Yvonnerealise that government bodies must beheld accountable for their legal obligations,particularly as providers of public servicesand duty bearers of human rights. In theshort term, Yvonne would like to see theIrish government stepping up and ensuringthat human rights are at the centre of allstate policy and decision-making.

Originally from Kerry, Yvonne completedan undergraduate degree in Biology andChemical Sciences BSc at universityCollege Cork. After a year’s travelling,Yvonne undertook a Masters degree inInternational Peace Studies at the IrishSchool of Ecumenics, Trinity CollegeDublin. Her thesis focused on acomparison of the motivations behindforeign aid policies in Ireland and the uS.During this time, Yvonne managed to holdtwo volunteering positions; one with SuASReception Centres for Asylum Seekers,and another with the Irish RefugeeCouncil as an Administrative and ResearchAssistant. Afterwards, Yvonne travelled toBethlehem in the West Bank to volunteerin the Palestine Summer Encounter forthree months. Whilst volunteering in agrassroots organisation, Yvonne quicklybecame immersed in the local culture andlearned Arabic. This once-in-a-lifetimeexperience allowed Yvonne to witnessfirst-hand the Israeli-Palestinian conflictand its toll on the lives of civilians.

On her return to Ireland, Yvonne wantedto deal more substantively with domestichuman rights issues and worked as aCasework and Policy Intern with the IrishRefugee Council. Her role primarilyfocused on the direct provision system.After her time there, she participated in avoluntary programme which involvedteaching English to Burmese migrants.Drawing upon her experience in thehuman rights field, Yvonne assisted aBurmese women’s and children’s humanrights organisation in writing and editingpublications on relevant human rightsissues for the Burmese diaspora andinternational community.

In order to gain a deeper understanding ofthe ways in which rights are attained,Yvonne studied for a Masters of Laws inInternational Human Rights Law and PublicPolicy at university College Cork. Drawingon her experience with refugees at homeand abroad, she wrote her dissertation onthe topic of the European union’scompliance with its human rights law inreturning third country nationals.

Yvonne’s current role as Advocacy andPolicy Officer allows her to apply herextensive knowledge of human rights lawat a practical level. Her job includesassessing government policies oncompliance with international humanrights standards or creating strategies forspecific FLAC campaigns. One of FLAC’scurrent drives is aimed at reforming thesocial welfare appeals system.

For Yvonne, it is crucial to feel that she ismaking a positive impact in her work. Shesays the best thing about her role at FLACis that she is now influencing change at ahigher level, after experiencing humanrights violations on the ground for severalyears, concluding “It is interesting to viewthe human rights sector from anotherperspective and to be in a position toaddress its shortcomings.”

Yvonne O’Sullivan, Policy & Advocacy OfficerF O C U S O N F L A C :

Yvonne O’Sullivan

In September 2013, Minister for JusticeAlan Shatter announced several changesto the civil legal aid system. Among thesewas an increase in the minimum financialcontribution for both legal advice (upfrom €10 to €30) and legal aid (up from€50 to €130). FLAC’s legal information

factsheets (FLACsheets) on civil legal aidhave been updated to reflect theseincreased contribution charges. Twoversions of the Civil Legal Aid in IrelandFLACsheet are available - an in-depthversion (covering eligibility and cost ofcivil legal aid, how to appeal decisions,

making a complaint, waiting times, andcross-border civil legal aid) as well as ashorter one summarising these mainpoints.

Both are free to download fromFLAC’s website: www.flac.ie

Civil legal aid changes - FLAC legal resources update



PILA’s updated Progress Report waslaunched as part of theprogramme for the 2013 Dave Ellis

Memorial Lecture on 5 December, duringHuman Rights Week (5-15 December).This Report builds on the 2012 editionand highlights the project’s keyachievements, as well as the spirit of publicinterest law and passion for pro bonowork that led to PILA’s establishment.

Here are some key facts and figures fromthe Report about the work of PILA and itsstakeholders since 2009:

• Over 170 legal advice and litigationsupport referrals have been madethrough the Pro Bono ReferralScheme.

• 23 law reform working groups havebeen set up through the ReferralScheme.

• 39 legal education sessions have beenset up through the Referral Scheme,attended by 769 non-governmentalorganisation staff.

• There are 220 individual lawyers and14 law firms on the Pro BonoRegister.

• There are over 1800 readers of thePILA Bulletin.

PUBLIC INTEREST LAW ALLIANCEU P D A T E


Staff updatesPILA recently welcomed new Legal OfficerEithne Lynch to the team. Eithne is asolicitor who qualified with Matheson andworked in the Commercial Litigation andDispute Resolution Department. Sinceleaving private practice in 2011 she hasworked in three African jurisdictions. InTanzania, Eithne assisted in theestablishment of a telephone hotlineservice for a national NGO aimed atincreasing legal representation forvulnerable women and children. She has lectured at the Law Society of Pretoria,South Africa on the Commercial Law Training Course with Irish Rule of LawInternational. Most recently she was a program lawyer with the Irish Rule of LawInternational "Access to Justice Programme" in Malawi. Her contribution to theprogram was recognised by the Irish Law Awards in 2013 where she was the jointrecipient of the inaugural Bar Council of Ireland Human Rights Award.

Case Study

The Report also features a number of casestudies of referrals, working groups and legaleducation sessions that PILA has facilitatedthrough the Pro Bono Referral Scheme. Oneof these is a legal advice referral that PILAfacilitated for TENI and FLAC, which drawsin FLAC’s ongoing work on behalf of DrLydia Foy.

The issue: Ireland is the only country in theEu that makes no provision for the legalrecognition of transgender persons. On thefoot of a successful case brought by Dr. LydiaFoy before the Irish courts, TENI and FLACsought to address this inequality through theintroduction of legislation.

What PILA did: PILA connected TENI andFLAC with David Dodd BL, a PILA Pro BonoRegister barrister. They worked together todraft a private member’s Bill on genderrecognition, which was subsequentlyproposed in the Seanad by independentSenator Katherine Zappone.

The result: The Bill, together with the ongoingFLAC-supported Dr. Lydia Foy litigation,increased pressure on the Irish Governmentto publish an outline of potential genderrecognition legislation. The referral wasshortlisted for the 2013 PILnet EuropeanPartnership in the Public Interest Pro BonoAward. Dr Lydia Foy was also shortlisted for‘Campaigner of the Year’ at the EuropeanDiversity Awards in London.

Case Study Case Study

Another case study detailed in the Report,the ongoing collaboration between A&LGoodbody and the Irish Refugee Council LawCentre, was recently featured in the IrishTimes

Case Study

PILA Progress Report launched

Rachel Power, PILA Coordinator says,“This Progress Report showcases thework that our stakeholders haveundertaken through our Pro BonoReferral Scheme, and it illustrates theimpact of our public interest law events,research and information services. PILAexists because it is needed, and we hopethis Report will explain clearly to ourstakeholders and other interested peoplethat the project’s ongoing presence isessential for the development of publicinterest law and structured pro bono inthis jurisdiction.”

Giving the keynote address at the DaveEllis Memorial Lecture, AtlanticPhilanthropies’ Martin O’Brien said hewas encouraged by the number of lawfirms and individual practitioners “doingtheir bit” through PILA, and congratulatedthem for their farsightedness. Aside frombeing the right thing to do, Mr O’Briensees the work that PILA is doing as arewarding and valuable experience for allinvolved, and also helps to rehabilitate theimage of the lawyer in modern Ireland.

You can download a copy of the ProgressReport at www.pila.ie.




PUBLIC INTEREST LAW ALLIANCEU P D A T E

Putting Equality and Human Rights into Budgeting

In October 2013, PILA and theEquality Budgeting Campaign cametogether to help NGOs speak with

one voice about the Irish Government’s2014 Budget. As noted in the last issue ofFLAC News, PILA had facilitated aroundtable for NGOs in mid-2013 onequality and human rights budgetingissues. The October joint civil societyresponse to the 2014 Budget called forreforms to the budgetary processincluding equality impact assessments andminimum living standards based onIreland’s international human rightsobligations. This highly successful eventinvolved 50 NGOs that representIreland's most vulnerable groups to cometogether and speak with one voice incalling for a fairer budget.PILA circulateda survey to participating NGOs ahead ofBudget Day on 15 October. Following theannouncement of budget details on theday of the Budget, the NGOs sent their

responses to PILA based on theirassessment of the Budget’s provisions.PILA and the Equality BudgetingCampaign collated these answers and on17 October – the International Day forthe Eradication of Poverty - the NGOscame together again in Dublin's MansionHouse for a very successful discussionforum.The event’s panel was chaired byNiall Crowley (Equality consultant/former CEO Equality Authority) andconsisted of Dr Liam Thornton (uCDSchool of Law & FLAC Council), LouiseBayliss (Equality Budgeting Campaign &SPARK), David Perry BL (Member of PILAPro Bono Referral Scheme), StephenDonnelly TD (Independent) and PILA'sMairead Healy and Emma McCarron.Organisations in attendance representedgroups right across the social spectrum;their interventions from the floorfollowing the panel inputs charted thesevere impact Budget 2014 will have on

people who are already struggling to getby. Most striking was the consensusamong those gathered that a humanrights and equality budgeting approachcould mitigate the impact of budgetdecisions that disproportionately affectsuch groups.The results of the surveyshow:

• 95% of respondents supportedequality proofing of all cuts and taxincreases.

• 92% of respondents called forincreased involvement of civil societyin the budgetary process.•79% ofrespondents expressed support forincorporation of minimum humanrights standards into the budgetprocess.

• 97% of respondents felt the currentapproach is not conducive to optimaldecision -making.

Images from meetings of the PILA Progress Report Working group - many thanks to everyone!




Social Welfare and Pensions Bill 2013

Budget Day was pushed forward amonth earlier than usual this yearon 15 October so as to bring

Ireland in line with the practice in otherEu member states. FLAC had hoped thiswould mean more opportunities topublicly discuss the revision or removal ofsome of the introduced measuresproposed by the Department of SocialProtection. However, in his speech on theday Minister for Finance Michael NoonanTD shed very little light on the thinkingbehind and the predicted impact of manyof the cuts and changes affecting the socialwelfare recipients.

It was only during the Department ofSocial Protection’s Budget Forum on theday that the plethora of cuts were fullyexplained and debated by the invitedorganisations. FLAC was one of sometwenty bodies representing such groups ascarers, elderly people, children andunemployed people which had a chance tovoice concerns on the likely impacts ofbudget measures on their constituencies.Although the Department said a socialimpact assessment will be published in duecourse, it would have been more useful tohave carried out such an assessmentbefore the budget measures have beenfinalised in terms of understanding howbudget cuts would impact on differentstrata of society. Arguably, producing asocial impact assessment after the budgetdefeats the purpose of carrying it out inthe first place.

Ireland’s budget process is flawed, as isclear from the lack of public knowledgeand participation in the lead up to thebudget. Human rights budgeting norms callfor full pre-budget consultation withgroups and individual affected by spendingdecisions so as to ensure that the mostvulnerable in our society are protectedand their rights to an adequate standard ofliving and a life of dignity ensured.

FLAC and the Northside Community Law& Mediation Centre were given very shortnotice that the Social Welfare andPensions Bill 2013 would be guillotined (orrushed through without debate) by thegovernment shortly after the budget. Thisvery important bill was published on 23October, and then hastily scheduled fordebate in the Dáil on 24 and 25 October,to then be voted through. This limitedtimescale reflects poorly on thegovernment’s commitment to basic humanrights principles of transparency andparticipation, particularly as befits a

member of the uN Human RightsCouncil.

Working intensively together to thisextremely tight deadline, FLAC andNorthside put together a joint submissionwhich highlighted concerns about thecurrent closed budgetary processes andlack of time to debate a piece of law withsuch significant and widespread impacts onpeople in Ireland. Deputy MaureenO’Sullivan referred to the joint submissionpicking up on this point in her address inthe Dáil.

The Dáil debates that ensued focusedmainly on cuts and discontinuance ofcertain schemes that had been well flaggedin advance of Budget Day. Little attentionwas paid, for example, to the introductionof a new recovery scheme for peopleinvolved in personal injury claims. OnlyDeputy Aengus O’Snodaigh (Sinn Fein)was able to raise our concerns around the

new recovery system of specific benefitspaid to those with a personal injury claim.Many TDs echoed our criticism on thewinding-up of Mortgage Interest Supple -ment, on the lengthening of the periodbefore a person can receive Injury andIllness Benefit from 3 to 6 days and on thediscriminatory cuts to u-26s jobseekersallowance.

Our observance of the debate over thetwo days available is that there simply wasnot enough time to allow a comprehensivediscussion of provisions in the bill,especially around brand new issues notrelated to cuts. This is where the politicalsystem is failing the public. The CeannComhairle struggled to keep order withthe time limits imposed by the guillotine.Surely this indicates the need for a moremature and in-depth discussion about theissues the bill throws up?

In the Seanad also there was minimal timefor debate at the committee and reportstage over 5-7 November. SenatorsMooney, Cullinane and Norris drew fromthe joint submission, mainly around thediscontinuance of MIS and called theMinister up on provisions in thegovernment’s own Programme forGovernment 2011-2016, which stated that“better use” of MIS was needed ratherthan paying out on rent allowance to keeppeople in their family homes.

Debate in the Seanad did not reach thelast two sections of the bill, which meantno discussion on the implications of thenewly-proposed recovery system forpersonal injuries claims. The lack of aninformed debate meant there was noclarity regarding the right to an appealunder this new system, the return of over-payments from the Department to theinsurer with no reference to the socialwelfare recipient, and no address to thedisregard for fair procedures in thesesections. All these valid concerns were lostin the rush to get the Social Welfare andPensions Bill 2013 through the Oireachtas.

There is undoubtedly much to gain frommore participatory and transparentbudgetary processes, such as fairerdecisions in line with human rights andequality principles, mitigating budgetimpacts on the most vulnerable people inour society. The guillotine should not be aregular tool for passing social welfarelegislation; these laws have implications foralmost every citizen in the country and assuch should be open to public scrutiny.

Budget 2014 Changesq Mortgage interest supplement

discontinued from 2014 for newapplicants, 4-year wind down forexisting claimants

q Telephone Allowance discontinuedfrom 2014 for all recipients

q Rent/Mortgage Interest Supplementcontribution for couples increased by€5 to €40

q Jobseekers Allowance &Supplementary Welfare Allowancereduced to €100 for under 25s

q Jobseekers Allowance &Supplementary Welfare Allowancereduced to €144 for 25-year-olds

q Maternity Benefit set at €230 perweek for new applicants from 2014

q Illness and Injury Benefit not paid forfirst 6 days of claim (up from 3 days)from 2014

q Invalidity Pension for age 65 will bediscontinued at €230 to €193.50 perweek those that reach 65 fromJanuary 2014

q Bereavement grant discontinuedfrom 2014

q New recovery scheme of certainsocial welfare payments frominsurance companies regardingpersonal injury claims


Northside Community Law &Mediation Centre recently rana Roundtable event to examine

Section 13 of the Social Welfare andPensions Act 2012, which allows theDepartment of Social Protection toreduce a basic payment by 15% withoutthe person’s consent in order to recoveran overpayment. Alan Brady BL andBernadette McMahon of the VincentianPartnership spoke on different aspects ofthe topic.

Mr Brady gave a short presentationexamining the legal basis of Section 13 andits compatibility with various human rightsprovisions. He outlined that anoverpayment is defined as a debt owed ins.341 of the Social Welfare ConsolidationAct 2005. An overpayment is owed andpayable to the Department of SocialProtection regardless of who is at fault, theclaimant or the Department. Section 13 ofinserted a legal provision whereby theDepartment can recover up to 15% of aperson’s payment without their consent.

Mr Brady highlighted some Constitutionalcases that tested a person’s ownershiprights over a benefit paid and the limitationof the State responsibility in providing forsocio-economic rights. In one, the Courtsruled that in situations of overpayment aperson does not have a property right to asocial welfare payment and it can berecouped by the State. Mr Brady madesuggestions around challenging s. 341 ofthe Principal Act on constitutional groundsof a right to bodily integrity, to freedomfrom inhumane and degrading treatmentand to personhood.

He then introduced the European humanrights framework, looking at the possibilityof taking a case in breach of article 3 (rightto be free from inhumane or degradingtreatment) or article 8 (respect for privatelife) of the European Convention ofHuman Rights. The Eu Charter ofFundamental Rights is limited in that it onlyconcerns the application of Eu law, whichwould mean only a case involving an non-Irish European union national could onlybe used here. Lastly, Mr Brady referred to

the Convention on the Rights of the Child,which has greater power as an advocacytool than a complaint outlet due to havingno legal recourse in Irish courts.

Sister Bernadette McMahon of theVincentian Partnership for Social Justice(VPSJ) highlighted the social policyimplications of Section 13 on those relyingsolely on social welfare payments. The VPSJpublished a report on the minimumessential standard of living for six differenthouseholds in 2006. This report found thatthere were shortfalls in all six households’income versus expenditure when inreceipt of social welfare payments. Theintroduction of recovering overpaymentsof up to 15% by the Department of SocialProtection will further reduce a person’sminimum essential standard of living belowthe figures that VPSJ presented in theirreport. Sr McMahon said that a personfaced with a reduction in their income will

naturally cut spending on food, which inturn may affect his or her health andwellbeing.

The roundtable ended with discussionaround the table of advocate experiencesof recovery of client overpayments. Peopletalked about their approaches to ensuringthat a client had an adequate income whileat the same time repaying an affordableamount, although this was usually at alower percentage of 2-5% of their socialwelfare payment. The group reflected theinconsistencies in the procedures appliedthroughout the country in recoveringmoney owed to the DSP. The roundtableconcluded that although Section 13 has tobe fought on a case-by-case basis byadvocates, it realised and recognised theneed to challenge the provision on moresubstantive grounds to ensure a person’sright to a life of dignity.



Northside Community Law & MediationCentre hosts social welfare roundtable




Funding FLACWe in FLAC are hugely grateful to all those who supported us with fundingthroughout 2013, allowing us to deliver on our mission of equal access to justice forall in Ireland. As an independent non-governmental body that provides all of itsservices free of charge to the public, grants from statutory bodies and foundations,donations from the public and contributions from the legal profession are crucial inensuring that we have the resources to continue with our work, at a time of greatdemand and need. We thank all of our supporters for their commitment andassistance in 2013. FLAC works hard to ensure that all funding is put to best possibleand most efficient use. If you are interested in supporting equal access to justice in2014, there are a number of ways you can get involved:

• By sending a cheque to FLAC, 13 Lower Dorset Street, Dublin 1

• By using our secure online donation facility, log on to http://www.flac.ie

• By making a regular donation by standing order (Please [email protected] or phone (+353) 1 887 3600 to get the appropriate form)

• By organising an event: consider organising a table quiz, a sponsored walk orrun, or any number of other possible events to support access to justice. Wewill be delighted to support and assist you through providing materials andpromoting your event. Contact: [email protected] or phone (+353) 1 887 3600

• By getting your company involved: if your company or organisation wants to learnmore about supporting equal access to justice, we would be delighted to talk toyou about the various ways in which you can support FLAC’s work.

Thank you!

UN HighCommissioner forHuman Rights visits Dublin

FLAC was privileged to meet with NaviPillay, the uN High Commissioner forHuman Rights, during her recent briefvisit to Dublin. Ms Pillay was receivingan award from a Trinity College Dublinsociety and arranged to meet someNGOs while here. Along with nine other organisa tions,FLAC raised some human rights issuesof pressing concern in Ireland. ForFLAC, these included the continuedlack of transgender recognitionlegislation, limitations on the right ofequal access to justice for all, andhuman rights in administrative pro -cesses such as the right to an effectiveremedy and fair procedures for peopleappealing social welfare decisions.In particular, FLAC called on the HighCom mission to support its proposalthat that the Legal Services RegulationBill incorporate the entire uN BasicPrinciples on the Role of Lawyers as away to promote human rightsstandards among practising lawyers.On the human right to shelter, FLACraised concerns about the State’sfailure to adequately support people’shousing needs, including people inmortgage debt who are at incipient riskof homelessness. FLAC noted inade -quate social welfare supports tomortgage holders in distress as well asthe lack of suitable and timely legal andfinancial advice, coupled with theabsence of an appeals mechanism inboth the process leading up toinsolvency process and in the newpersonal insolvency scheme itself.Ms Pillay was very gracious in listeningto the long list of issues from all tenorganisations and offered timely adviceon joining forces for greater impact.She also looked forward to innovationsin the uN system that would allowcountries to apply more pressurebetween each other on the nationallevel to effect positive change.

FLAC is offering one law student orgraduate the opportunity to gain first handpublic interest law experience in theunited States with the Thomas Addis EllisFellowship 2014.Applications are nowbeing accepted from current law students(at undergraduate or postgraduate level)as well as those enrolled at King’s Inns orthe Law Society of Ireland. Those with aninterest in social justice issues areparticularly encouraged to apply, as theFellowship focuses on the interaction ofhuman rights and public interest law. TheFellowship is run by FLAC in conjunctionwith the university of Washington, Seattleand the award covers flights,accommodation, meals and a livingallowance. Successful applicants will get

the chance to interact with American lawstudents, attend law lectures given byexperts in the public interest field and alsoget involved with casework.PreviousThomas Addis Emmet Fellows haveworked with the non-profit WashingtonAppleseed Centre for Public Interest Law.Washington Appleseed seeks to promotesocial justice by engaging pro bono lawyersand campaigning for legal reform.Thedeadline for applications is 14 February2014. To apply, please download andcomplete the application form available onFLAC’s website at http://bit.ly/TAE2014.Completed forms and CV’s should be sentto FLAC, 13 Lower Dorset Street, Dublin1. Best of luck to all the applicants.

2014 Fellowship application process has begunFLAC Thomas AddisEmmett Fellow 2013,Vanessa Lawlor, receivesher certificate at the DaveEllis Memorial Lecture2013.

Pictured L-R: FLAC DirectorGeneral Noeline Blackwell,Vanessa Lawlor, PresidentMichael D Higgins & FLACchair Peter Ward SC


Documents

Flac winter 2013 web