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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 September 2015 Lydia Foy was finallyrecognised in the female gender shehas lived in for 23 years. She was

issued with a Gender RecognitionCertificate 22 years after she first appliedfor a new birth certificate in March 1993 –she still has the reply she got at that time,saying that her request was “underconsideration”. FLAC has been honouredto represent Lydia for 19 of those years.

On 8 September, Social ProtectionMinister Joan Burton had launched theapplication process that allows trans -

gender (Trans) persons to be recog nisedin their preferred gender. It was anemotional occasion for Lydia Foy andmembers of the Transgender EqualityNetwork Ireland (TENI) who werepresent for the launch. For the first timein their lives they were officially recognisedas who they are by the Irish state.

The Gender Recognition Act was finallypassed by the Oireachtas on 15 July 2015and the commencement order bringing itinto effect was signed by the Minister on 4September. Because President Higgins had

signed the Marriage Equality amendmentto the Constitution a few days earlier, thecommencement order dropped a con -troversial requirement that married Transpersons would have to divorce as a pre-condition for recognition.

Trans persons who have received GenderRecognition Certificates will still have toapply for new birth certificates, but thatwill essentially be a formality.

This outcome has been a huge achieve -ment for Lydia Foy. It would not have

Victory at last for Lydia Foy:Trans people win right to legal recognition

Minister for Social Protection Joan Burton TD, Lydia Foy, FLAC Senior Solicitor Michael Farrell

Continued page 3

Photo: Cyril Byrne / Irish Times

FLAC News Autumn 2015 PROOF 2_FLAC05 vol15no4 13/10/2015 15:21 Page 1

flac News | Vol. 25, No. 3

Victory at last for Lydia Foy: Trans peoplewin right to legal recognition 1 & 3

Lydia Foy receives birth certificate after 22 year legal battle 2

New guides to social welfareoverpayment launched 4

Social welfare case update: Arrears of benefits paid to asylum seeking parents following appeal 5

FLAC’s Annual Report 2014 showscontinued rise in housing enquiries 6-7

Legislate in haste, repent at leisure? 8

Growing numbers hit by restrictive civillegal aid scheme during crisis 9

PILA update: 10-11‘Changing Ireland, Changing Law’ SeriesIreland in focus PILA Seminar: The Duty of the State inConstitutional CasesMeeting of European Pro BonoClearinghouses‘Labour of Love’ campaign on 11domestic workers UN examination of Ireland on economic,social and cultural rights: additionalresources 11

Focus on FLAC: Athlone and Mullingar FLACs 12-13Ciarán Finlay, Legal & Policy Officer 13

Jury out on personal insolvency law 14

Ireland’s Universal Periodic Review 2016:A peer review of how Ireland is meetingits human rights obligations 15

Save the Date – Dave Ellis MemorialLecture 2015 16

Secure the future of equal access to justice – Join the Friends of FLAC 16

New guide to law on top-up loans fromlicensed moneylenders 16

FLAC News is published quarterly byFree Legal Advice Centres Ltd., 13 Lower Dorset Street, Dublin 1.Editors: Yvonne Woods & NoelineBlackwell.

Contributors: Emer Butler, Naoise Duffy, Deborah Dwyer,Michael Farrell, Ciaran Finlay, JessicaGibbons, Catherine Hickey, Paul Joyce,Eithne Lynch, Rachel Power, Lisa-MarieSalley, Yvonne Woods

Photos: FLAC, Cyril Byrne, Paula Geraghty,Derek Speirs

Layout & Print: Printwell Design, D3ISSN 07914148

The views of individual contributors donot necessarily represent the views ofFLAC.

2 F L A C N E W S l J U L Y – S E P T E M B E R 2 0 1 5

r

Lydia Foy receives birthcertificate after 22 year

legal battle

On Friday 25 September, withthe last barrier to recognitionof her gender removed, trans -

gender champion Lydia Foy un veiled herbirth certificate, giving her full recog -nition in Ireland for the first time andending her 22-year legal battle. Dr Foysaid “This is a great day for me and forthe Trans community in Ireland. Withthis piece of paper and after 22 years ofstruggle, my country has finally re -cognised me for who I really am, not forwhat other people think I should be.”

That same day, Dr Foy was honoured bythe European Parliament, having beennominated by Sinn Fein MEPs for theEuropean Citizens Award for 2015. Sheis the only Irish recipient of this award,which she will receive at a ceremony inBrussels in October. In a reception inDublin’s National Gallery, Lydiaaccepted a Medal of Honour from theParliament presented by the four SinnFein MEPs – Martina Anderson, LynnBoylan, Matt Carthy and Liadh Ni Riada.

Lydia was deeply honoured to be giventhe European award which sheregarded as a tribute to all those whohave helped Trans people to becomeequal citizens of this State. She thankedFLAC and the many others who helpedto ensure that the Act was one of themost progressive transgender laws inEurope.

Paying tribute to Lydia’s courage, FLACSenior Solicitor Michael Farrell said:“Without Lydia there would be noGen der Recognition Act. And without

her long and painful struggle, anothergenera tion of transgender peoplewould have to endure the hardship, fearand lack of understanding that Lydia’sgenera tion experienced, before theycould be recognised and respected asequal citizens in this country.”

FLAC Director General Noeline Black -well said “Lydia has shown extra -ordinary bravery and sacrifice as alitigant in the public interest. This awardis an exceptional honour from Euro -pean Parliament and is thoroughlydeserved by Lydia.”

As a legal rights body, FLAC is proud tohave been part of this historic, ground-breaking case. There will be coverage ofthe Brussels award ceremony in thenext issue of FLAC News. More athttp://bit.ly/foy_medal

Lydia Foy with her new birth certificate.

Lydia with some of the legal team which helped her win her legal case for recognition:Bill Shipsey SC, Siobhan Phelan BL, Lydia Foy, Maureen Maguire-Gourley, Michael Farrell

in this edition...



F L A C N E W S l J U L Y – S E P T E M B E R 2 0 1 5

happened without her and the legal caseshe started in 1997, represented by FLAC.It was a hard, lonely and deeply painfuljourney for Lydia. It involved her ‘comingout’ as a Trans person in an Ireland thathardly knew what a transgender personwas. It was a period of intense conserva -tism about gender issues and hostility toanyone who challenged the status quo.

Lydia Foy was subjected to ridicule andabuse in sections of the media and in thestreets and she lost the first of three legalcases she had to take, when the HighCourt held in 2002 that there was nothingin Irish law or the Constitution that couldassist her. That was a dark moment for herand most people in her situation wouldhave given up, but Lydia struggled on.

The tide began to turn when the EuropeanCourt of Human Rights ruled, just twodays after the decision in Lydia’s case, thatTrans persons had a right to be recognisedin their preferred gender and when theEuropean Convention on Human Rights(ECHR) Act brought the ECHR directlyinto Irish law in 2003.

Lydia took a second case and in 2007 theHigh Court held that the lack of anyprovision for recognising Trans personswas incompatible with the ECHR and inbreach of Lydia Foy’s rights under theHuman Rights Convention.

Even then, it took another eight years anda third court case before the law waschanged. But by 2007 things were changingand Lydia was no longer on her own. Hertwo cases had spread awareness of Transrights and the fact that Ireland was theonly EU country that did not recogniseTrans persons. The Trans community hadbegun to organise, led by TENI; and FLAC,TENI and the LGBT community generallywere all campaigning for gender recog -nition. Ireland was changing too. Civil part -nership was introduced in 2010 and theGovernment had promised to hold areferendum on Marriage Equality in 2015.

Lydia struggled on, buoyed up by growingsupport. When legislation had not beenintroduced by the beginning of 2013, shefelt obliged to issue new proceedings.However, the Government had got themessage and the third legal case wassettled at the end of October 2014 whenthe Government undertook to enact theGender Recognition Bill early in 2015.

In the end it actually took a little longerthan expected but the delay was worth it.

The original Bill was flawed and veryrestrictive. TDs and Senators from the fullrange of the political spectrum, many ofwhom had met with Trans activists to learnmore about the reality of life without legalrecognition, pressed for changes. The resultwas a law that allows self-determinationfor Trans persons with no requirement formedical evidence for people over 18. Inthat respect it is one of the most liberalTrans rights laws in Europe. There are gapsin the Act, which has very onerousrequirements for young people between16 and 18 and no provision for Transchildren or intersex persons but there is atwo-year review provision which will give achance to remedy this quite shortly.

Lydia Foy is owed a huge debt by the Transcommunity and by the whole of Irish soc -iety. She has saved a younger genera tion of

Trans persons a lot of the isolation andsuffering that she herself had to go throughand she has helped to make Ire land a moretolerant and compassionate place.

FLAC is proud that we have been able toassist and support Lydia Foy in her longstruggle, which has also shown how thelaw can be used in the public interest, tovindicate the rights of vulnerable people.We are grateful and appreciative too forthe work of TENI and the Trans and LGBTcommunities because where social changeis required, it is rarely enough to win casesin court. There must be popular pressureas well to get governments to implementthe decisions of the courts.

But most of all we must salute Lydia Foyherself, who has spent a third of herlifetime in this lonely battle with all itsemotional stress and pain. She has donethe State some service. However, no-oneelse should have to go through such a longand difficult ordeal just to secure the rightto be her or himself. In that connection,the history of Lydia’s case shows that theECHR Act needs to be greatly strength -ened if it is to be an effective instrumentfor protecting the rights of othermarginalised and vulnerable groups.

FLAC would like to express its thanks toformer FLAC solicitors Mary Johnson,Maureen Maguire Gourley and EleanorEdmond, and to counsel Bill Shipsey SC,Gerard Hogan SC (now Mr Justice Hogan),Eileen Barrington SC and Siobhan PhelanBL for their dedicated work on the Foycase over the last 18 years.

3

Continued from front page

Victory at last for Lydia Foy

Lydia with FLAC staff and interns

Lydia Foy and Michael Farrell




New guides to social welfareoverpayment launched

t

On 20 July, FLAC and CommunityLaw & Mediation (CLM) jointlylaunched two guides to the law

underpinning the recovery of socialwelfare overpayments. The guides areaimed at helping people to understandtheir rights and obligations when a claim ismade by the Department of SocialProtection for return of money which theDepartment says has been overpaid.

Overpayments can result from

t an error made by the claimant or theDepartment,

t the claimant not informing theDepartment of a change incircumstances or

t the claimant intentionally giving falseinformation to receive a payment.

FLAC and CLM regularly receive querieson the issue of social welfare over -payments. Last year, 13.5% of calls aboutsocial welfare to FLAC’s telephoneinformation line were on overpayments –the third highest area of enquiry on socialwelfare matters - with a further 6.8% ofpeople asking about fraud. It is hoped thatthe two guides will assist people and theiradvocates in dealing appropriately andpromptly with an overpayment claim.

The shorter info sheet is a user-friendlydocument which explains what to do ifthe Department makes an overpaymentclaim against a person. In addition, it offersbasic information on how the debt can berecovered, how much the Department isentitled to recover and what issues theSocial Welfare Appeals Office will considerif the decision of the Deciding Officer ischallenged.

The longer, more detailed guide isintended for use by advocates. Itsummarises, in practical terms, thestatutory framework that gives theDepartment of Social Protection theauthority to decide that a claimant hasbeen overpaid, and what steps a claimantmight take if disputing such a decision. Itthen examines the Department’s debtrecovery powers in the event that the

claimant is found to owe a debt. The guidealso outlines the important proceduralsteps and actions to be taken by a claimantto either challenge a decision in the firstinstance, or alternatively, to reach asustainable debt repayment arrangement ifappropriate.

While both FLAC and CLM accept thatthe State must be able to recover moneywhich has been unlawfully or incorrectlypaid out, they are concerned that people -many of whom are on low incomes or arereliant on social welfare - are being hitwith sizeable claims that could leave themat risk of deprivation or even destitution.Where they claim an overpayment, theDepartment of Social Protection candeduct up to 15% of a person’s net weeklyearnings without their consent and, if theperson involved consents, they can deductmore.

Whilst a 15% deduction may not, at firstglance, seem overly demanding, it may wellbe asking too much from a person who isdependent on social welfare for his or hersole income. For example, where a 15%deduction is made from a person’s socialwelfare payment, this will in many casesmean that his or her income falls belowthe relevant Supplementary Allowancerate. The Supplementary Welfare Allow -ance rate is the level which theGovernment itself considers to be a basicminimum.

People under the age of 26 are atparticular risk of falling beneath thisminimum threshold given the reducedSupplementary Welfare Allowance andJobseeker Allowance payments availablefor claimants between the ages of 18 and25 years. It is also relevant to note that ifthe Department is recovering a debt byreducing a person’s social welfarepayment, that person is not entitled toapply for Supplementary WelfareAllowance to “top-up” his or her income.Therefore, a person’s means may not besufficient to meet their needs.

Some key points from the guides forclaimants and advisors include:

t If the decision is recent, considerlodging an appeal with the SocialWelfare Appeals Office. In thissituation the claimant should alsowrite to the Department requestingthat no action be taken to recover thedebt as the matter is before theAppeals Office.

t Always request proof of the debt inwriting, and use the Freedom ofInformation Act to request records/the claimant’s file.

t If the claimant agrees to repay theoverpayment, he or she should notaccept an agreement which has theeffect of causing him or herself unduehardship. If submitting an alternativerepayment plan to the Department,the claimant should submit evidencethat credibly supports their proposal.

t Make sure that all communicationwith the Department is in writing.

Both guides are available todownload on the FLAC and CLMwebsites at www.flac.ie and

www.communitylawandmediation.ie



5F L A C N E W S l J U L Y – S E P T E M B E R 2 0 1 5

Social welfare case update: Arrears of benefits paid to asylum seeking parents following appeal

Two former asylum seekersrepresented by FLAC have beenawarded arrears of Child Benefit

for the time they spent in DirectProvision. The decisions followed longdrawn -out appeals to the Social WelfareAppeals Office.

Both applicants were mothers of Irishcitizen children and, following the decisionof the Court of Justice of the EuropeanUnion (CJEU) in the Ruiz Zambrano case in2011, were given leave to remain inIreland. In the Zambrano case, the Courtheld that parents of dependent childrenwho are citizens of an EU member statemust be allowed to live there with theirchildren to look after and provide for themso that they can enjoy the benefits of EUcitizenship.

Both women had been refused ChildBenefit while living in Direct Provision onthe basis that they did not satisfy theHabitual Residence Condition (HRC).

In the first case, Maria* gave birth to a babyboy in Belfast in 2004. He was entitled toIrish citizenship, as the law at that time stillgranted automatic citizenship to anyoneborn in the island of Ireland. Mariasubsequently returned to her owncountry, but came to Dublin in 2007 andapplied for asylum. She was placed inDirect Provision and applied for ChildBenefit in January 2009, but was refused.The Social Welfare Deciding Officer saidshe did not satisfy the Habitual ResidenceCondition because her status wasundecided, Ireland was not her centre ofinterest, and her future intentions wereuncertain.

When Maria was given leave to remain asa Zambrano parent in 2011, she againapplied for Child Benefit; this time she was

awarded it, but only from the date onwhich she had been given leave to remain.She appealed, arguing that underthe Zambrano ruling she should have beenentitled to reside here from her son’sbirthdate. If that was so and her right toreside dated from her coming to Irelandwith her son in 2007, she would have metthe first habitual residence requirement asher status would not have been“undecided”.

The Social Welfare Appeals Officer heldthat the Zambrano ruling had “clarified theinterpretation of existing EU law as itshould have been interpreted since it wasintroduced”. In other words, Maria had hada right to reside here from 2007. TheOfficer also acknowledged that Maria hadbeen resident in the State for over a yearat the time of first applying, had mademeaningful efforts to integrate into thelocal community and to establish a centreof interest in this country. She concludedthat Maria had been habitually residentwhen she applied for Child Benefit inJanuary 2009. The Department of SocialProtection subsequently agreed to payMaria arrears of Child Benefit from January2009 to when she was given leave toremain in August 2011, and payment hadcommenced.

In the second case, Anna* also had a sonborn in Belfast in 2004 and came to Dublintowards the end of 2005 as an asylumseeker, whereupon she was housed inDirect Provision. Her son was issued withan Irish passport early in 2006 and sheapplied unsuccessfully for Child Benefit atthat time. She applied again in 2011 but herapplication was rejected on habitual resi -dence grounds. She was given leave toremain as a Zambrano parent in 2011 andwas awarded Child Benefit from then on.The Social Welfare Deciding Officer held

that she did not satisfy the Habitual Resi -dence Condition (HRC) prior to that date.

In this case the Appeals Officer did not relyspecifically on the Zambrano decision.Instead, she noted the absence of adecision on the first application, made in2006, and said she could not deal with anappeal where there was no decision.FLAC, acting for Anna, requested that adecision be made; a Deciding Officer dulyrejected the 2006 application on the basisthat Anna had not satisfied the HabitualResidence Condition. Anna appealed thisdecision.

The Appeals Officer then dealt with the2006 application, saying that in 2006 it hadnot been necessary to have a right toreside in order to satisfy the condition andthe legislation did not exclude asylumseekers. She said that to comply with thecondition required a “degree of perman -ence – meaning that a person has beenhere for some time ... and is intending tostay for a period into the foreseeablefuture. It implies a close associationbetween the applicant and this countryand relies heavily on fact”.

The Appeals Officer held that Anna did notsatisfy the HRC when she first applied forChild Benefit early in 2006 as she had onlybeen in the country for about threemonths. However, she said that an AppealsOfficer could re-assess an applicant’sposition at a later date to see if things hadchanged. She held that by August 2007,when Anna had been in the country fornearly two years and had been joined for atime by her husband, she did satisfy thecondition and that this decision shouldcontinue to apply until she was given leaveto remain in 2011. The Department ofSocial Protection agreed to pay Annaarrears from 2007 to 2011.

* Names have been changed.




F LAC released its Annual Report for2014 with a launch on 6 July byMinister for Justice and Equality

Frances Fitzgerald, introduced by FLACChairperson Peter Ward SC. The reportrevealed that some 28,389 people soughthelp with a legal issue from FLAC andthrough the network of volunteer legaladvice clinics in 2014.

The report catalogues the organisation’sextensive policy and campaigning workthroughout the last year in personal debtlaw, consumer credit protection. socialwelfare law and civil legal aid. It shows thework done in promoting the use offundamental human rights standards andpromoting public interest law, especially viathe Public Interest Law Alliance.

The numbers requiring help on a legalmatter from the telephone informationline were up just over 10% on last year.Locally based advice centres maintained byFLAC volunteers and usually operated byCitizens Information Centres saw anoverall drop of 3% in callers countrywide,mainly due to some centres dropping outof FLAC’s data collection programme.

FLAC Director General Noeline Blackwellcommented: “You might say FLAC’s legalinformation helpline is almost a legalthermometer for issues affecting people inIreland and 2014 has been our busiest yearyet. For the second year running, ourphone line saw a big increase in calls onhousing problems, including landlord andtenant queries, up 81.7% over 2013. This ison top of an 83% increase over 2013. Thismakes housing the second largest area ofenquiry on our phone line, with family lawissues and credit & debt law problems theother top areas.”

Minister Fitzgerald launched the reportand welcomed the idea that FLAC’shelpline can indeed be seen as a legalthermometer to identify the issuesaffecting the most vulnerable in Irishsociety clearly showing a focus on familylaw and housing issues. She announced thatshe will be promoting a Mediation Bill thatwill see solicitors and barristers adviseparties to disputes to consider usingmedia tion as a means of resolving them.Minister Fitzgerald said the purpose of thebill was “to promote mediation as a viable,effective and efficient alternative to court

FLAC’s Annual Report 2014 shows c

At the launch of FLAC’s Annual Report 2014: (top) Minister Fitzgerald with FLAC staff andguests; (middle) Minister Fitzgerald (R) with FLAC Chairperson Peter Ward Sc and Director

General Noeline Blackwell; (bottom) FLAC Executive Officer Emer Butler (centre) who compiledthe annual report.


t



s continued rise in housing enquiriesproceedings thereby reducing legal costs,speeding up the resolution of disputes andrelieving the stress involved in courtproceedings”

Senior Policy Analyst Paul Joyce alsoaddressed the gathering of supporters andvolunteers on the organisation’s work inconsumer credit and personal debt lawreform. He noted the recent publication ofthe Civil Debt (Procedures) Bill whichintroduces some very selective amend -ments to the procedure for resolving debt;he expressed disappoint ment that it didnot take a more comprehensive approachas recommended by the Law ReformCommission.

Paul drew attention to the need for legalinformation and advice for people em -broiled in overdebtedness and in par ticularthose in long-standing mortgage arrears.He said there was an urgent need toreform the mortgage to rent scheme,which is still very much underperformingas a realistic mechanism for keeping peoplein their homes.

Turning to the other side of the debt coin,Paul said Ireland needs more robust legalprotections for consumers of credit andfinancial services. Redressing the Im balance,FLAC’s flagship research report in 2014,analyses Ireland’s current frame work,including the effectiveness of the FinancialServices Ombudsman’s Office, CentralBank provisions and relevant legislation. Inparticular, Paul recalled FLAC’s caseworkon redress mechanisms for consumers ofcredit in 2014 and the critique of the Codeof Conduct on Mort gage Arrearscontained in Redressing the Imbalance.

The Annual Report 2014 highlights newground being broken on law in the public

interest by FLAC’s innovative project, thePublic Interest Law Alliance. Last year, PILAmatched 62 social justice organisationsneeding legal support with pro bono legalassistance from law firms and barristers, aswell as delivering legal education sessionsand supporting 95 pro bono referrals.

PILA was instrumental in FLAC’s workpromo ting human rights standards throughits work on budgeting and in coordinatinga civil society response to the Irish statereporting to the UN under the Inter -

national Covenant on Economic, Social andcultural Rights; this culminated in June2015 with a hearing before a UN Com -mittee in Geneva and strong recom -mendations to the Irish government onactions it must take to fulfil its dutiesunder the Covenant.

t Download the annualreport at

http://bit.ly/FLACrep2014

FLAC interns & staff (L-R): Jessica Gibbons, Suzanne O’Sullivan, Holly O’Callaghan, Claire Macken, Lisa Marie Salley, Ellen Reid, Katie Timmins, Rachel Power.

In 2014 FLAC’s telephone informationand referral line saw a 17% increase incalls about neighbour disputes over theprevious year. People wanted to knowmore on a range of different questions;for example, very straightforward ques -tions about dealing with noisy neigh -bours, barking dogs or anti-socialbehaviour. However some calls weremore complicated – such as one in -stance earlier this year where a per sonasked who should be res ponsible forbringing the complaints about a noisyneighbour, the tenants or the land lord?Other callers queried what should bedone about ongoing disputes whereattempts at mediation have failed.

In response, FLAC has produced a legalguide for the public which looks at thelaw around disputes between neigh -bours involving noise and anti-socialbehaviour. It lays out the steps to take insuch situations in two main sections.Within these two broad categories, thebooklet also addresses specific circum -

stances such as the differ ent approachesyou need to take depending on whetheryou are living in privately owned, privaterented or local authority housing, orwhere you are living next to noisycommercial premises.

The booklet was launched by Ministerfor Justice & Equality Frances FitzgeraldTD on 6 July and is available todownload on the FLAC website or fromyour local Citizens Information Centre.

Neighbour Disputes booklet launched

Minister for Justice & Equality, Francis Fitzgerald TD

Paul Joyce speaking on debt at the launch


8



Governments rushing legislationthrough the Houses of theOireachtas at breakneck speed

before the summer recess is hardlyunusual. Still and all, the Civil Debt(Procedures) Act 2015 will take somebeating as an illustration of the fine art ofcompromising the democratic process. Thelegislation is also clearly intended toprovide for attaching the earnings ordeducting from the social welfarepayments of people who refuse to paywater charges, which may well be why thedebate was cut short.

But legislating in haste may lead torepenting at leisure. This is an ill thought-out and incomplete piece of legislation thattinkers with the area of debt enforce mentrather than compre hensively addres sing it.By rushing it through the Oireach tas, weare left with a two-tier system that is morefavourable to some classes of creditorsthan others and which leaves it up to aDistrict Court judge to decide whatpeople of already limited means can havededucted at source from their incomes.

For the record, the Civil Debt (Pro cedur -es) Bill 2015 was presented in the Dail on26 June and published on 30 June. The or -d er for second stage was made on 3 July.It was referred to Select Committee on 7July. The Com mittee Stage was taken on10 July and the Report and Final Stageson 16 July. It went to Second Stage in theSeanad on 17 July and the Com mittee andremaining stages in the Sean ad weretaken on 20 July. It was enacted on 27July, four weeks after it was published.

In her speech at second stage in the Dáil,Minister for Justice & Equality FrancesFitzgerald TD stated that “The provisionsin the Bill arise from the recommendationsmade by the Law Reform Commission inits 2010 report, entitled ‘Personal DebtManagement and Debt Enforcement’.” Theimplication was that this legislation woulddeal with the debt enforcement side of theCommission’s report. This is only partiallytrue. The Commission proposed a verywide suite of reforms to the system ofdebt enforcement in Ireland; however thisAct represents a selection of isolatedelements of that report, particularly inrespect of attachment of earnings. Thecontinuing lack of any legislative reform intwo key debt enforcement areas in theLRC recommendations – Instalment Ord -

ers or Execution against Goods by Sheriffs/ County Registrars for example – isnotable.

The attachment option under thelegislation is available to small or soletraders, sub-contractors and other bus -ines ses that have supplied goods andservices. The Minister also explained that itwould equally apply to “Irish Watercharges and the charges of energy andtelecommunications companies”. Signifi -cantly, however, the option of attachmentdoes not apply to bodies authorised toprovide credit in the State such as banks,credit unions and moneylenders. Where ajudgment is obtained in court against adebtor and any amount between €500 and€4,000 of that judgment debt remains tobe paid, the relevant creditor may apply inthe debtor’s local District Court for anAttachment of Earnings Order. The debtorwill be obliged to provide the court with astatement of means which the court willuse to assess the debtor’s capacity to ser -vice deductions from his or her earn ings.This is subject to establishing a ‘ProtectedEarnings Rate’ below which the person’searnings should not be allowed to fall.

The Act also allows a court, where thejudgment debtor is a person to whomcertain social welfare payments such asjobseekers allowance or benefit fall to bepaid, to make a ‘Deduction from PaymentsOrder’ directing the Minster for SocialPro tection to make deductions from thatpayment for the benefit of the judgmentcreditor, again subject to establishing aminimum retained income.

In 2003, FLAC published its first majorreport on debt enforcement in Ireland, AnEnd based on Means. One of the catalystsfor this report was the stated intention ofthe government of the day to introduceattachment of earnings in lieu ofimprisonment for non-payment of civildebts. As it turned out, the anticipatedlegislation never materialised; but the

report looked in some detail at attachmentof earnings systems throughout Europe.One feature identified in the report washow frequently the amount of the attach -ment was decided by relying on pre-determined tables or by a court officialworking with specific guide lines, in orderto attempt to ensure consistency oftreatment. This 2015 Act by contrast leavesthe matter in the hands of District Courtjudges with no indication of how they willbe guided.

The 2003 report also found that since anAttachment of Earnings Order is directedat an employer, it is possible that anemployee who is the subject of theattachment order may suffer adversetreat ment at work (even including dis -missal) as a result, and so must be legallyprotected. There are no employmentprotection measures, however, in this Act.

Finally, the Minister also announced thatthe Bill would bring an end toimprisonment for civil debt, a situationaccepted by many as a human rightsviolation and even counter-productivefrom the creditor’s perspective. On closerscrutiny of the Bill as drafted, however, itwas not clear that this has been achieved,in particular because it fails to amendSection 6 of the Enforcement of CourtOrders Act 1940 (as amended) which stillallowed for the possibility of imprisonmentwhere a judgment debtor had ‘wilfullyrefused or culpably neglected’ to meet theterms of an Instalment Order.

FLAC pointed out this last deficiency(among others) in a hastily assembledsubmission. To be fair, the matter wasremedied with a Report Stage amendment.Ironically, however, this amendment wasnever discussed. Such was the desire ofdeputies to discuss the legislation that bythe time the cut-off point for debate onReport Stage amendments was reached at1.30 pm on 16 July, only a small number ofamendments had been taken. The LeasCeann Comhairle put to the House ‘thatthe amendments set down by the Ministerfor Justice and Equality and not disposedof, including those in respect of whichrecommittal would in the normal coursebe required, are hereby made to the Bill,Report Stage is hereby completed and theBill is hereby passed’ – and the vote wascarried with no further discussion.

Legislate in haste, repent at leisure?




Growing numbers hit by restrictive civillegal aid scheme during crisis

Equal access to justice is afundamental human right. As such,the purpose of a civil legal aid

scheme is to seek real access to justice foreveryone, particularly for those withoutthe means to pay for it themselves.Notwithstanding this, the Civil Legal AidAct 1995 precludes the Legal Aid Boardfrom providing representation before mostappellate tribunals including social securityand employment appeals as well as in localauthority repossession proceedings. Theseissues commonly affect vulnerable andmarginalised groups, and have done so toan even greater extent since the onset ofthe economic crisis.

At Ireland’s recent examination by the UNCommittee on Economic, Social and Cult -ural Rights under the International Cove -nant, the Committee expressed concern atthe lack of state legal aid servi ces which, intheir view, “prevents disad vantaged andmarginalised individuals and groups fromclaiming their rights and obtaining appro -priate remedies, particu larly in the areas ofemployment, housing and social welfare”.Subsequently, the Committee recom mend -ed that such servi ces be provided in awider range of areas, including by expand -ing the remit of the Civil Legal Aid Scheme.The UN Special Rap porteur on ExtremePoverty shared simi lar views during her2011 visit to Ireland.

The Government has continually rejectedcalls to provide statutory legal aid for localauthority tenants defending repossessionproceedings, in spite of the fact that theseproceedings are conducted before theDistrict Court. There has been a sharpincrease in the number of repossessions oflocal authority dwellings over the courseof the recession. In the period 2005 –2009, local authorities took possession ofa total of 66 houses. 1 However, asausterity intensified, repossessions jumpedto 89 in 2010 and to 137 in 2012. 2 Giventhat the vast majority of people living inlocal authority houses are on low incomesand cannot afford private legalrepresentation, clearly more people havebeen denied the opportunity to effectivelypresent their own cases in repossessionproceedings during the downturn.

Equally, tribunals such as the Social WelfareAppeals Office and the EmploymentAppeals Tribunal are a common route formany people on low incomes to accessjustice. Since the onset of the economiccrisis, issues related to these tribunals, suchas social welfare and employment, havebecome more relevant for vulnerable andmarginalised groups. This is evidenced bythe dramatic increase in the number ofappeals to these quasi-judicial bodies.

For example, there has been a sharp rise insocial welfare appeals applications sincethe downturn. In 2007, 14,070 applicationswere lodged with the Social WelfareAppeals Office. By 2010, this had surged to32,432 and numbers peaked in 2012 at35,484.

There has also been an upsurge incomplaints to the Employment AppealsTribunal. In 2007, 3,173 complaints weresubmitted to the Tribunal but by 2009 thisnumber had increased almost threefold to9,458. Given the disproportionate impactof austerity policies on vulnerable groups,it is unsurprising that issues such asredundan cies, unfair dismissals and socialwelfare payments have become morerelevant in recessionary times.

Despite growing numbers of complaints tothese bodies, the Government has resistedcalls to broaden the remit of the Legal AidBoard, arguing inter alia that tribunals areintended to be relatively informal, that legalrepresentation works against the objectiveof accessibility to users and that legal

representation would have adverseresource implications.

However, it has long been recognised thatthere will always be cases where therequirements of justice demand legalrepresentation. In the landmark EuropeanCourt of Human Rights decision in Airey vIreland, the Court held that, in terms of thescope of the right to a fair trial, there is apositive duty on the state to provide legalaid in matters where the rights andobligations of the individual were inquestion and where the matter was ofsuch complexity that the applicant couldnot reasonably be expected to effectivelyrepresent him or herself.

In recent times, senior officials workingwith these quasi-judicial bodies have ack -nowledged how complicated some of theseproceedings are. Then Chief Social WelfareAppeals Officer Geraldine Glee son statedin her 2014 Annual Report that decisionsrelating to the right to reside must bedetermined by reference to immigrationlaw and EU law which, in her words, “is verycomplex”. Similarly, Chair person of theEmployment Appeals Tri bunal KateO’Mahony described unfair dismissal casesas “complex and con tested” in theTribunal’s 2014 Annual Report.

Given the blanket exclusion of thesetribunals from the scope of the civil legalaid scheme, the rise in applications and thecomplexity of the issues they cover, it iscertain that during the recession a fargreater number of individuals were notable to present their cases in the mannerthat fairness demands. This interferes withtheir right to access justice.

During the economic crisis, people on lowincomes were, to a greater degree, hind eredin their attempts to access justice by virtueof the Government’s failure to provide legalaid for issues related to housing, employ -ment and social welfare. Up to now, theGovernment has ignored the calls of bothcivil society and the UN to broadenIreland’s existing civil legal aid scheme. It’sabout time those calls are heeded.

1. https://www.kildarestreet.com/wrans/?id=2010-10-05.1671.0

2. http://www.independent.ie/irish-news/a-third-of-local-authority-homes-loans-are-in-arrears-29696111.html

NO ACCESS


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PUbLIC INTeReST LAw ALLIANCeU P D A T e

F O C U S O N P I L A

L-R: Nick Ferreira, Michael Lynn SC, Noeline Blackwell, Gilbert Marcus SC, Paul Gallagher SC.

PILA Seminar: The Duty of the State in Constitutional CasesIn July, PILA hosted a seminar with two of South Africa’s leading human rightsadvocates, Gilbert Marcus SC and Nick Ferreira, that explored the duty of the State inconstitutional cases. This was followed by a panel discussion with Michael Lynn SC andNoeline Blackwell of FLAC, and chaired by former Attorney General Paul GallagherSC, on the experience of public interest litigators in Ireland. The seminar was kindlysponsored by William Fry solicitors. Marcus and Ferreira also facilitated a roundtablewith 14 PILA partner organisations on developing an effective rights strategy for socialchange.

LGBT activists whosecases paved the way forpassage of the marriageequality referendum wereamongst the speakers atthe ‘Changing Ireland,Changing Law’ seminar onLBGT rights and the law.

The seminar focused onindividuals who havetaken legal cases thatbrought about significantsocial change in Ireland,including Senator Kather -ine Zappone, her wife AnnLouise Gilligan and Sena -tor David Norris. Otherspeakers were ProfessorMark Bell of Trinity CollegeDublin and Brian Sheehan of the Gay &Lesbian Equality Network. This was thesecond in the ‘Changing Ireland, ChangingLaw’ series, a project led by Dr MaryRogan, Head of Law at Dublin Institute ofTechnology, and Professor Ivana Bacik,

Professor of Criminal Law at TrinityCollege Dublin. It is funded by the IrishResearch Council, with additionalcontributions from the Trinity CollegeDublin Equality Fund and Arts & SocialSciences Benefactions Fund. As lead

partner, PILA has also had the privilege ofworking with the National Women’sCouncil of Ireland and the ImmigrantCouncil of Ireland on seminars addressingthe rights of women and asylum seekers.

The final seminar will take place onFriday 16 October at 11am in DITGrange gorman Campus and will be achance for PILA to bring togetherlearnings from the lecture series inaddressing barriers to public interestlitigation. If you would like to attend,please email [email protected] to register.

‘Changing Ireland, Changing Law’ Series

L-R: Brian Sheehan, Senator Ivana Ba�ik, Prof Mark Bell, Sen KatherineZappone, Senator David Norris, Dr Ann Louise Gilligan, Dr Mary Rogan

Meeting of European ProBono ClearinghousesIn July, PILA as a member of theEuropean Pro Bono Alliance took partin a collaborative workshop and know-how exchange. The meeting wasorganised by PILnet, the global networkfor public interest law, at its Europeanoffice in Budapest, Hungary. Rep resenta -tives of the European Pro Bono Allianceexchanged know-how about collabora -tions organised by the clearinghousesbetween lawyers and NGOs. PILAfacilitated a discussion on the develop -ment of a Europe-wide definition of probono, which led to a lively and inter -esting debate! On the second day of themeeting, inter national law firm DLAPiper provided a training session onmarketing and promoting pro bono, aswell as strategies to develop new probono programmes to help withindividual human rights cases. DLAPiper provided an invaluable insight intohow a large commercial law firmdevelops pro bono strategies andinterventions.

PILNet will host the European ProBono Forum in Rome, Italy from 11-13November. The only platform of its kind,the Forum provides an inter nationalperspective on pro bono practice anddevelopment in Europe. It bringstogether the NGO sector, law firms,legal academics and students to explorehow they can best collaborate toaddress critical social issues. Furtherdetails about the Forum and registra -tion can be accessed throughwww.probonoforum.org.


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F O C U S O N P I L A

Migrant Rights Centre Irelandrecently launched a cam paigncalled ‘Labour of Love’ which

focused on the rights of workers inprivate homes across Ireland. The cam -paign aims to combat the wide spreadunder payment, exploitation and abuse ofworkers providing essential care andhouse keeping services. Labour of Lovecalls for:

1. The recognition of the employmentrights of au pairs, including the rightto a minimum wage; and

2. The introduction of a work permitfor the domestic work sector, torecog nise increased labour marketdemand for migrant workers in theprovision of care and domestic lab -our in private homes across Ireland.

As part of its campaign, MRCI soughtlegal assistance through the PILA Pro

Bono Referral Scheme on the applicablelegal framework in relation to au pairemployment and au pair employmentagencies in Ireland. Through its extensivenetwork of legal practitioners, PILAsourced an expert barrister, Cathy SmithBL, who undertook the work pro bono.The legal opinion found that while aupairs are protected by minimum wagelegislation, people within those positionsare simply not aware of their rights. Thiscampaign seeks to address this.

On the referral process, Cathy Smith BLsaid she found it very interesting toresearch and consider a group ofemployees and their rights underemployment legislation, that she notpreviously considered:

“It is always interesting to considerhow existing law can be applied in anew way. I was happy to be of

assistance with MRCI and foundthem to be helpful and professionalat all times”.

Aoife Smith, co-ordinator of the MRCI’sDomestic Workers Action Group, saidthe campaign was strengthened by thelegal opinion obtained through PILA, as itprovided credible evidence to supportMRCI case work and grassrootscampaign work with migrant womenemployed in the private home sector aschildminders and au pairs. MRCI intendsto use the legal opinion as part of itscampaign to inform media, politicians,policy makers, au pairs and employersabout existing legislation. Aoife describedPILA’s assistance as “invaluable tocommunity groups and NGOs such asMRCI who can access expert legalcounsel on issues central to progressingsocial justice work”.

PRO BONO UNDER TH E S POT L I GHT:

UN examination of Ireland on economic, socialand cultural rights: additional resources

The last edition of FLAC News was aspecial on the Irish civil societyreporting process under the

International Covenant on Economic,Social and Cultural Rights. This included anoverview of the civil society delegation toGeneva in June, presentations fromdelegations members and the concludingObservations of the UN Committee onhow the Irish state is meeting its legalduties and what it should do to improve itsperformance ahead of the nextexamination.

�The government’s own delegation to theexamination consisted of 23 state officialsheaded up by Minister of State SeanSherlock TD. You can read MinisterSherlock’s address to the UN Committeeat http://bit.ly/DFATcescr

Also present in Geneva was a group fromthe Irish Human Rights and EqualityCommission, headed up by Chief Com -missioner Emily Logan. You can readIHREC’s report on its work in this area athttp://www.ihrec.ie/international/icescr.html

�A number of other NGOs which did nottake part in the civil society report alsomade separate presentations to the UNCommittee. These can be found athttp://bit.ly/orsCESCR15 – under the dropdown at CESCR, then Reporting Cycle III.

t You can download the FLAC Newsspecial on ICESCR from Apr-Jun2015 at http://bit.ly/FN25no2

flacNewsI S S N 0 7 9 1 4 1 4 8 l V O L U M E 2 5 l N U M B E R 2 1 2 0 1 5

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

The Irish State’s response to theeconomic and financial crisis –cutting public expenditure,

especially in housing, healthcare, socialsecurity and education – has beencriticised by the UN’s top body in this areaas having a disproportionate impact onvulnerable groups.

The UN Committee on Economic, Socialand Cultural Rights issued its Concluding

Observations on the state’s performanceover the past decade on Monday 22 June.This followed a formal examination of Irishgovernment delegation led by Minister ofState Sean Sherlock on how Ireland ismeeting its obligations under the Inte -rnational Covenant, a treaty on humanrights to which Ireland is a signatory since1989.

FLAC welcomed the UN observations,

noting the Committee’s grave concerns atthe consequences of austerity measures inIreland. Some of the groups most impactedhad already been severely disadvantagedbefore the recession, while others hadbeen reduced to poverty during it.

The Committee made a host of strongrecommendations for state action on allareas covered by the Covenant. Inparticular, FLAC welcomed its suggestions

Continued on page 27

The UN Committee on Economic, Social & Cultural Rights held its examination of Ireland under the International Covenant

UN: ‘Disproportionate’ state focus on cuts during austerity

SPECIAL UN ICESCR REPORTING EDITION

‘Labour of Love’ campaign on domestic workers



The first community informationcentres were volunteer-run andestablished in the late 1960s to

meet the public’s need for easily accessibleinformation on entitlements and services.Athlone Citizens Information Centre wasestablished in 1976 – it will celebrate 40years serving the local community nextyear. In February 1998 the Athlone andMullingar Centres were registered andincorporated as a county-wide service.

Today, Westmeath Citizens InformationService has two main Centres – one inAthlone and the second in Mullingar – witha weekly outreach in Castlepollard.Westmeath CIS is staffed by paid staff,volunteers and scheme workers. TheDevelopment Manager is Deborah Dwyer.She oversees the day-to-day running of theservice and reports to a voluntary Board ofManagement.

In February 2014, Westmeath CIS was thesecond CIS to achieve the EFQM Gold StarRole Model Service Excellence QualityMark, an internationally recognised qualitymark that focuses on the impact of

services for custo -mers. In 2014, West -meath CIS dealt with15,000 callers andanswered almost30,000 queries aswell as identifying,recording and sub -mitting 100+ socialpolicy matters. Theservice carried 128advocacy cases anddealt with 352 once-off advocacy clienttransactions.

Westmeath CIS wasone of the earliestservices to roll out alegal clinic with aview to promotingequal access to justice for everybody. Localsolicitors volunteer their skills in order tohelp people understand their legal rights.Westmeath CIS, which is a registeredcharity funded and supported by theCitizens Information Board, takes pride inthe Free Legal Advice Clinics it hosts. To

ensure an appointment with a solicitor, allrequests for FLAC must be dealt with by aninformation provider within the CIC – thismeans initial or essential basic informationcan be provided in advance of theappointment with the solicitor so as toensure time spent during the appointment


Mulingar and Athlone FLACsF O C U S O N C e N T R e S

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Zse Varga, FLAC Volunteers and Centres Manager, with Deborah Dwyer,Westmeath CIS Development Manager, at Athlone CIC.

MULLINGAR

ATHLONE

Continued on page 13

Athlone FLAC Clinic is locatedat Athlone CIC, St. Mary’sSquare, Athlone, Co. WestmeathN37 E9D7. You need to make anappointment to see a lawyer inthe FLAC clinic held on thesecond and fourth Monday ofevery month – just call 0761 076610 or [email protected] for moreinformation.

Mullingar FLAC is at MullingarCIC, Mount Street, CountyBuildings Complex, Mullingar.Advice sessions are also byappointment – call 0761 07 6660or e-mail [email protected] tobook a place in the clinics onthe first and last Mondays ofthe month.

Areas of law at Westmeath FLACs Callers in 2014 % of callers

Total Callers 243 100


Ciarán Finlay joined FLAC in August2015 in the newly minted role ofLegal and Policy Officer, taking

over from Yvonne O’Sullivan who had beenFLAC Policy and Advocacy Officer until herdeparture in April. His re mit covers thepolicy focus areas of civil legal aid, socialwelfare and access to justice.

Ciarán hails from Portlaoise, Co. Laois andbrings a wealth of experience to theorganisation.

He completed a Bachelor of Common Law(Law with History) at UCD in 2011, beforegoing on to do a LL.M. in Human RightsLaw also in UCD. During his Masters,Ciarán studied a range of human rightsmodules which enabled him to gain adeeper knowledge of the domesticprotection afforded to human rights, aswell as of regional and internationalbodies, such as the European Court ofHuman Rights and the UN system. Hisdissertation focused on the EuropeanCourt of Human Right’s treatment ofviolent hate crimes, in particular againstKurds, Roma and Chechens.

In recent years, Ciarán has worked withhuman rights organisations including UN -HCR Ireland, Amnesty International, theChildren’s Rights Alliance and the formerIrish Human Rights Commission. He hasalso undertaken voluntary work inschools, hospitals and orphanages inZambia.

Just prior to joining FLAC, Ciarán workedfor a year as a Human Rights Attaché withthe Permanent Mission of Ireland to theUnited Nations in Geneva. His responsi -bilities centred on UN treaty bodyreviews, general sessions of the Human

Rights Council (HRC) and examinations

under the Universal Periodic Review(UPR) mechanism. Particular highlightsincluded leading EU negotiations on aresolution at the 28th session of the HRCand the delivery of a statement to theHRC informing it of Ireland’s historicmarriage equality vote.

Ciarán was motivated to join the FLACteam for a number of reasons. In hisprevious positions with Amnesty Inter -national and the Children’s Rights Alliance,he worked on a number of projectsinvolving economic, social and culturalrights. As a result, he was very impressedby FLAC’s work in advance of Ireland’sexamination by the Committee onEconomic, Social and Cultural Rightsthrough the “Our Voice, Our Rights”project. In addition, while he thoroughlyenjoyed his time working with the IrishMission in Geneva, Ciarán found it difficultto assess how his work at the internationallevel was having a tangible impact on the

ground. Consequently, he was veryinterested in working with FLAC, whosework has such a direct and positive impacton vulnerable and marginalised groups.

Ciarán’s role is to undertake legal andpolicy work in the areas of access tojustice, civil legal aid and social welfare. Heis also assisting in case work and theprovision of second-tier advice to NGOsand Citizens Information Centres.

Having worked within a range ofstructures – from NGO to NationalHuman Rights Institution, UN agency and,most recently, the Government – Ciaránhopes to build constructive workingrelationships with all relevant stakeholderswithin his policy areas. He also hopes inparticular to utilise his experience inGeneva to promote a better under -standing of international human rightsmechanisms at the local level, wherehuman rights can sometimes be viewed asinaccessible or intangible.



F O C U S O N F L A C

Ciarán Finlay, Legal & Policy Officer

is efficient and effective and the overallappointment is engaging for the customer.

Last year some 243 callers attended theFLAC centres based in Athlone andMullingar Citizens Information Centres.Almost forty per cent of callers toWestmeath legal advice centres had afamily law query, while just over nineteenper cent of callers presented with a debtrelated query. Wills were the third mostcommon type of query, similar to last year;

however, consumer queries replacedemployment queries as the fourth mostcommon type of query.

The legal advice clinic within WestmeathCIS is actively promoted by the Service viacommunity based presentations to variousgroups, national, regional and local publicinformation events, information slots onvarious radio stations and ‘Know yourRights’ columns in local papers. The servicealso promotes the FLAC clinic on the web

and takes part in the national datacollection programme for FLAC centres.

Westmeath CIS are co-located with theMoney Advice Budgeting Service (MABS)and with the National Advocacy Service forpeople with disabilities; this co-locationallows for appropriate referrals andensures that clients receive a full andcomplete service as far as possible andpractical.

Mullingar and Athlone FLACs (Continued)




Jury out on personal insolvency law

o

It is hardly a secret that, thus far, thePersonal Insolvency Act 2012 has notbeen a roaring success in providing

effect ive mechanisms for over-indebtedconsumers to resolve their financial prob -lems and return to solvency, particularly inthe critical area of mortgage arrears.

While it is true that activity has picked upafter a very slow start in the autumn of2013, the numbers in receipt of arrange -ments under the legislation is still a smallfraction of the extent of the problem itwas designed to remedy. For example, ac -cord ing to the Quarterly Statistical Bul let -in released by the Insolvency Service ofIreland to the end of June 2015, a total of469 Debt Relief Notices (for small levels ofun secured debts), 216 Debt SettlementArrange ments (for higher levels of un sec -ur ed debt) and 478 Personal InsolvencyArrange ments (for secured (includingmort gages) and unsecured debts) hadbeen approved in the 21 months that thelegislation has been in operation. By con -trast, there have been some 760 adjudi -cations of bankruptcy over the sameperiod.

The latest Central Bank mortgage arrearsfigures, on the other hand, show that38,041 accounts on principal dwellinghouses are now in arrears for over twoyears, with an average arrears figure of wellover €50,000. In the past 18 months, some16,745 new applications have been broughtto repossess family homes; actual reposs -ess ions, while still low compared to thelevel of new applications, are growing. Putsimply, neither the legislation nor associa -ted measures such as the Central Bank’sCode of Conduct on Mortgage Arrears areaddressing the most troublesome cases.

The reasons for this are many and varied.The Act itself is a conservative dipping ofthe toes into the waters of personalinsolvency, with a very firm weather eye onprotecting the financial system, the solv -ency of financial institutions and the fear ofcreditor constitutional challenge. Industryhas responded in kind to the prompting,exercising its voting threshold veto rela -tively routinely. The excessively long time ittook the legislation to pass also created anexpectation that write-offs were about tohappen; when they did not materialise,some debtors retreated into the shadows.The infrastructure to assist debtors tonegotiate with their creditors is too piece -meal and lacks continuity and depth

through the various elements of theprocess. No one has wanted to own thisproblem – and it shows in the results.

On 13 May this year, faced with fairly clearevidence that its measures were not havingthe desired impact, the Government an -noun ced that it intended to introduceamend ments to the legislation “to giveCourts the power to review and, whereappro priate, to approve insolvency dealsthat have been rejected by banks”. Thevehicle for these changes was to be thePersonal Insolvency (Amendment) Bill2014, originally designed to be purely atechnical ‘cleaning up’ of the Act, until itwas pressed into service to accommodatemore substantial changes. The section ofmost interest in this respect is a newSection 115A. Its purpose may be broadlysummarised as:

t Where a proposal for a Personal Insol -vency Arragement includes a mort gageon a principal private residence which iseither in arrears as of 1 January 2015,or where the mortgage was in arrearsprior to 1 January 2015 and an alterna -tive repayment arrange ment has beenentered into, and that proposal isreject ed, a review may be sought in the(Circuit) Court.

t The relevant Personal Insolvency Prac -tit ioner must have reasonable groundsfor seeking a review, must be instructedby the debtor to do so and must makean application to the Court not laterthan 14 days after the reject ion. Theapplication must notify all creditors andthe Insolvency Service.

t The application must identify the credi -tors who voted in favour of and againstthe proposal and whether, in theInsolvency Practitioner’s opinion, thosewho voted in favour of the prop o salshould be considered to be ‘a class’ ofcreditors. At least one class of creditorsmust have already accepted the PIAproposal; the Court may consider onesingle creditor or more than one

creditor to be a class of creditors.

t A creditor has 14 days to object to theapplication and must notify all parties ofits objection.

t A number of conditions must be satis -fied before the Court can grant theapplication. These include

l that there is a ‘reasonable pros pect’that confirmation of the prop osedarrangement will avoid bankruptcyand enable creditors to recoverdebts ‘to the extent that the meansof the debtor reasonably permit’;

l that the debtor is ‘reasonably likely’to be able to comply with the termsof the proposed PIA; and

l that the proposed arrangement is‘fair and equitable’ in relation to eachclass of creditors that has notapproved the arrangement.

It is welcome that the creditor veto willnow be subject to review but, again, ex -pecta tions need to be tempered. Manyinsolvent debt ors never get to make aproposal in the first place, never mind haveit rejected, due to insufficient income orassets capacity to justi fy a (commercial)Personal Insolvency Practitioner’s time andeffort. Equally, those expecting the Courtto start routinely over turning creditorobjections may be disap pointed, given thecriteria set out in the section.

As yet unanswered questions also occursuch as who will represent the debtor atthe Court hearing, what will happen if thecreditor appeals and when the amend -ments are likely to be commenced.

The Government announcement also saidthat ‘Court rules and procedures will alsobe streamlined to guide more casestowards the Insolvency Service, building onexisting measures to allow cases to beadjourned so that a defendant can engagewith a Personal Insolvency Practitioner’.Under the Land & Conveyancing LawReform Act 2013, a defendant in a familyhome repossession case may already applyto have the case adjourned for thispurpose. It is again unclear what ‘buildingon’ this measure will look like but similarreservations apply. It is a long way fromhaving one’s repossession case adjournedto having one’s mortgage arrears problemaffordably restructured and ultimatelyresolved.




Ireland’s Universal Periodic Review 2016A peer review of how Ireland is meeting its human

rights obligations

t

Ireland will undergo its secondexamination under the UniversalPeriodic Review (UPR) mechanism in

2016. The UPR is a process through whichthe human rights records of the UnitedNations' 193 Member States are reviewedand assessed every four and a half years. Asopposed to UN Treaty Body reviews, whichare dealt with by independent experts, theUPR examination is undertaken by UNMember States which make recom -mendations to the State under review.

Ireland was last reviewed in 2011 andreceived 127 recommendations. Of these,Ireland accepted 91 recommendations,partially accepted 17 and rejected 19. Therecommendations touched on a variety ofissues, including prison conditions, domesticviolence and discrimination in access toeducation. Next year’s examination, to takeplace in either April or May, will focus to alarge extent on the implementation of therecommendations which were accepted bythe Government during the last review.However, the review also provides anopportunity for other issues, such as thoseoverlooked during the first cycle or newconcerns, to be raised.

The review itself is based on threedocuments; a national report by the Stateunder review, a compilation of UNinformation on the State under reviewcompiled by the Office of the HighCommissioner for Human Rights (OHCHR)and a summary of information submitted by

civil society organisations and nationalhuman rights institutions also compiled byOHCHR.

FLAC is part of ‘Your Rights, Right Now’, acoalition of civil society organisations whichis submitting a report to the OHCHRdetailing the Government’s progress inimplementing the recommendations receiv -ed during the first review and new issueswhich have arisen in the interim. Thecoalition is coordinated by the Irish Councilfor Civil Liberties. FLAC is also part of theUPR Cross-Sectoral Steering Group whichis providing strategic input into the co -ordina tion of the civil society response.

A series of consultations were held aroundthe country which informed the draftreport. A well attended National Review

Event was held on 9 September, whichprovided an opportunity to review the drafttext of the recommendations to be includedin the civil society stakeholder report beforeit is finalised and submitted to the UN on21st September 2015.

At the event FLAC’s Noeline Blackwelldelivered opening remarks, recapping onIreland’s 2011 UPR examination, outliningthe importance of the UPR mechanism andstressing the added value of a coordinatedcivil society report to the UN.

Discussions covered a range of issuesincluding hate crimes, LGBTI rights, therights of persons with disabilities, Travellerand Roma rights, women’s rights, children’srights and the rights of asylum seekers andrefugees.

In light of our recent experience incoordinating a civil society report to the UNCommittee on Economic, Social andCultural Rights in June, representatives fromPILA and FLAC facilitated the discussions oneconomic, social and cultural rights. Thisfocused in particular on the impact of theeconomic crisis. A number of concernsoutlined in the Our Voice, Our Rights civilsociety report on ICESCR and by the UNCommittee during Ireland’s examina tion inJune were again raised during the focusgroup. These included the home lessnesscrisis, the need for pre-budget human rightsimpact assessments, ratifica tion of theOptional Protocol to the InternationalCovenant on Economic, Social and CulturalRights and the failure of the Government torespond to the Con stitutional Convention’srecom menda tion to strengthen the pro -tection afforded to ESC rights in theConstitution.

FLAC has also sent its own UPR submissionto the Office of the High Commission forHuman Rights. It will be available online onthe FLAC website shortly.

t You can read the report andmore on the ‘Your Rights, Right

Now’ coalition atwww.rightsnow.ie

FLAC Director General Noeline with ICCLExecutive Director Mark Kelly at the UPR

national review event.




We are delighted to announcethat our guest speaker for thisyear’s Annual Dave Ellis

Memorial Lecture will be FLAC’s ownMichael Farrell.

Michael joined FLAC as Senior Solicitor in2005, coming from Michael E. HanahoeSolicitors where he worked in privatepractice from 1990, on areas such ascriminal law, extradition, defamation,personal injuries, and in cases before theResidential Institutions Redress Board. Healso took successful cases to the EuropeanCourt of Human Rights and the UNHuman Rights Committee.

Michael has had a varied career; he workedas a journalist and as a lecturer at the BelfastCollege of Technology before becoming asolicitor, and is the author of several books.

A lifelong campaigner and activist, Michaelwas a prominent civil rights activist inNorthern Ireland in the 1960s and 1970s,was Co-Chair of the Irish Council for CivilLiberties in the 1990s and was a member ofthe Irish Human Rights Commission for tenyears. Michael is currently the Irish memberof the European Commission against Racismand Intolerance. He was appointed to theCouncil of State by President Michael D.Higgins in 2012.

Since joining FLAC in 2005, Michael hasrepresented Dr Lydia Foy in her campaignfor recognition of transgender persons inIreland and has particularly concentratedin his other legal work on the area of socialwelfare law.

The Annual Lecture is a major event on theFLAC calendar and presents a great

opportunity to gather volunteers andsupporters of FLAC, past and present, toreflect on issues relating to access tojustice. This is the ninth year that we willhost the lecture and we have been deeplyhonoured by the calibre of guests whohave previously spoken at the event,including most recently Bryan Stevensonof the Equal Justice Initiative, MartinO’Brien of the Atlantic Philanthropies,Thomas Hammarberg, former Council ofEurope Commissioner for Human Rights,and Baroness Nuala O’Loan, formerNorthern Ireland Police Ombudsman.

We look forward to welcoming you on 3December to hear Michael’s reflections onaccess to justice over his long anddistinguished career. More information andinvitations will follow, closer to the time.

Save the Date - Dave ellis Memorial Lecture 2015 –

Thursday 3 December

For people facing some kind of crisis intheir life – whether it be in relation totheir family situation, their job, or theirhome, for example – the most powerfuland effective response often includes somekind of legal help. This might notnecessarily involve the work of a lawyer inthe courtroom (although sometimes itdoes) but knowledgeable guidance throughunfamiliar rules and processes is crucial.Phoning up FLAC’s Telephone Information& Referral Line, or talking to a volunteerlawyer at a local FLAC clinic, can be thatessential first step for a person to addressand resolve a legal issue. More than 28,000people accessed these services in 2014.

To continue to provide these services – aswell as to continue FLAC’s work in otherareas – securing sufficient funding iscrucial. Through the network of severalhundred FLAC volunteers around Ireland,as well as those members of the PILA probono register, and the support through theprofessional bodies of the Law Society andthe Bar Council, the legal profession inIreland forms the backbone of FLAC andwe simply could not exist without yourcommitment and support. We are appeal -ing to those who have been involved withFLAC in the past – whether in theirstudent days, earlier in their career, ormore recently – and who cannot volunteer

at present to consider joining our Friendsof FLAC programme.

This is a scheme whereby supporters ofthe organisation can either sign up to makea modest monthly donation, or a singleannual donation, whichever is easier.Having a solid financial base is crucial forsecuring the future of FLAC and its workfor equal access to justice, and this kind ofregular income is vital in enabling theorganisation to plan for the future. If wecould get just 100 supporters to committo giving €250 per year, with tax efficientgiving that would equate to just over€36,000, enough to run our TelephoneInformation Line for more than 6 months.

t To find out more, log on tohttp://www.flac.ie/donate, tel: +353 1887 3600, or email [email protected]

Secure the future of equal access tojustice – join the Friends of FLAC

In July FLAC produced a guide in responseto a finding of the Financial ServicesOmbudsman Bureau the pre vious month.In it, the Ombuds man decided that twoconsumer borrowers had been sold illegal‘top-up’ loans by a licensed moneylender. A‘top-up’ loan refers to a loan which is usedto pay off an existing loan balance from thesame moneylender.

While this practice is illegal under Section99 of the Consumer Credit Act 1995, it isnot stated in the legislation that such loans

are unenforceable against the borrower.However the Financial Services Ombuds -man in this case ordered that theoutstanding amounts to be paid on theloans, as opposed to the full amountsoriginally borrowed, must be written off.

This decision of the Ombudsman appliesonly to licensed moneylenders and not tobanks or credit unions. A licensed money -lender, under the Consumer Credit Act1995, cannot charge an arrangement fee inrelation to a loan and subsequently deduct

that fee from the loan.

It is important to note that while such‘top-up’ loans are prohibited, money -lenders are still within their rightsto have more than one loanagreement with a borrower atthe same time, as long as thenew loan is not used to clearthe balance on an existing loan.

t Download the guide athttp://bit.ly/topuploans

New guide to law on top-up loans from licensed moneylenders
