FLAC: 2016 Thomas Addis Emmet Fellowship

FlacThe Free Legal Advice Centres (FLAC) is now accepting applications for the 2016 Thomas Addis Emmet Fellowship – a unique opportunity awarded each summer to an Irish law student interested in working on critical social justice issues and developing skills in public interest law practice.

Run in conjunction with the University of Washington, the recipient will spend two months with a public interest law justice centre at the forefront of human rights and social change in Seattle, Washington, gaining hands-on experience of targeted public interest litigation, policy development and campaigns.

The Fellowship is open to all current law students, including students that have studied law as part of their undergraduate degree, postgraduates in law, and students of the King’s Inns or Law Society professional practice courses.

To apply please submit an essay on an area of public interest law of your choice (max. 2000 words) along with a cover letter and CV to info@flac.ie by Friday 15 January 2016.

For more information, please download the information sheet.

FLAC: 2016 Thomas Addis Emmet Fellowship

Ireland goes before the UN Committee on Economic, Social and Cultural Rights

UN imageOn Monday, June 8th and Tuesday, June 9th 2015, Ireland will have its third periodic report under the International Covenant on Economic, Social and Cultural Rights (ICESCR), assessed by the UN Committee on Economic, Social and Cultural Rights. You can follow this examination on Twitter, using the hashtag #UNIRL

What are economic, social and cultural rights?

The right to work, just conditions of employment, the right to social security and social assistance, the right to health, housing, food and water, encompass core aspects of socio-economic rights. Cultural rights include the right to participate in the culture of one’s communities and to enjoy the benefits of scientific and technological endeavour. These rights (and others) are protected in ICESCR.

Ireland before the UN Committee on Economic, Social and Cultural Rights

To date, Ireland has had two periodic reports (1999 and 2002) considered by the UN Committee. On both occasions, the Committee have expressed concern that Ireland has not incorporated ICESCR into domestic law, and the lack of reference and utilisation of ICESCR by the superior courts. Ireland has failed to adopt rights based frameworks in areas of anti-poverty, disability provision of health-care, rights of members of the Traveller community, housing and the low rate of social assistance payments. CESCR identified some core issues with Ireland’s compliance with its obligations under ICESCR in December 2014, and the list of issues to be discussed bear striking similarities to concerns previously expressed by CESCR in their 1999 and 2002 Concluding Observations. (See, Ireland’s response to these issues here). Continue reading “Ireland goes before the UN Committee on Economic, Social and Cultural Rights”

Ireland goes before the UN Committee on Economic, Social and Cultural Rights

Call for Applications: FLAC Public Interest Law Fellowship

FLACThe Free Legal Advice Centres (FLAC) is now accepting applications for the 2015 Thomas Addis Emmet Fellowship in Public Interest Law. This is a unique opportunity awarded each summer to an Irish law student interested in working on critical social justice issues and developing skills in public interest law practice.

Run in conjunction with the University of Washington, the Fellow will spend two months with a public interest law justice centre at the forefront of human rights and social change in Seattle, Washington gaining hands-on experience of targeted public interest litigation, policy development and campaigns.

The Fellowship is open to all current law students, including students that have studied law as part of their undergraduate degree, postgraduates in law, and students of the King’s Inns or Law Society professional practice courses.

To apply please submit an essay on an area of public interest law of your choice (max. 2000 words) along with a cover letter and CV to info@flac.ie by Friday 13th of February 2015.

For more information, please download the information sheet here.

 

 

Call for Applications: FLAC Public Interest Law Fellowship

Our Voices, Our Rights: Economic, Social and Cultural Rights in Ireland

FLACHuman Rights in Ireland welcomes this guest post from Geraldine Murphy, Legal & Social Welfare Intern at the Free Legal Advice Centres (FLAC). The parallel report on Ireland’s compliance with the International Covenant on Economic, Social and Cultural Rights, Our Voices, Our Rights is available to download here.

This year marks the 25th anniversary of Ireland’s ratification of the International Covenant on Economic, Social and Cultural Rights. Under this covenant a UN committee sitting in Geneva examines each signatory country roughly every five years on the progression of their obligations under the covenant. Since its ratification in 1989, Ireland has been examined under the Covenant twice, in 1999 and in 2002. The next examination under the covenant will take place in June 2015.

The covenant covers rights including the right to work, fair wages, social security, the right to the highest standard of mental and physical health, the right to education and the right to take part in cultural life. As such it covers areas that span right across the lives of people in Ireland and the organisations in the NGO sector that support them.

In the examination process, each state must submit a report to the committee. Civil society organisations may then submit a “shadow” or “parallel” report which offers an independent view on how the state has or has not realised or progressed its obligations under the Covenant. Ireland submitted its most recent report in 2013, covering the period of 2002 to 2010. As Ireland is being examined by the committee in 2015, the government’s report will thus be five years out of date by the time it is examined – a significant length of time to be left unreported.

Further, State reports naturally tend to focus on positive progress and actions by Government. This is where a shadow report by civil society is vitally important to provide valuable independent information, not just to supplement the government’s report, but to highlight any inaccuracies and, in this case, to account for the glaring gap of five years in the State report, such that the committee can hold the Irish Government to account on the most relevant issues.

Parallel reporting – a tool for rights-based change

A civil society report generally aims to influence the List of Issues on which the committee will question the government party. This may prompt the Committee to request more information from the State in question, and ultimately the government will be publically questioned on the issues involved.

Civil society is growing its knowledge on how to use mechanisms such as ICESCR to promote basic rights. The public questioning of the government by a UN committee provides civil society with a platform to hold the government to account for its progress on protecting, promoting and fulfilling rights and to explain its actions in an international setting amongst peer nations.

Following this examination the Committee publishes a report (“concluding observations”) with recommendations for the government to act upon. This report provides civil society with a strong basis for which they can hold the government to account when campaigning in their particular area.

Our Voice, Our Rights: A parallel report

In early December 2014, the UN Committee on Social, Economic and Cultural Rights will decide the ‘List of Issues’ on which it will question the Irish Government on its performance under ICESCR. With this important event in mind FLAC coordinated a parallel report on how the Irish State is meeting its obligations under the Covenant, based on evidence from a wide variety of diverse organisations throughout Ireland which promote rights covered under ICESCR.

In compiling this report, FLAC consulted with more than 50 civil society organisations and individuals around Ireland. The report represents a range of issues which FLAC believes have not been adequately covered by the Irish State Report. It covers the period from 2002 to mid-September 2014 and examines issues arising under each of the different Covenant Articles where relevant.

“Our Voice, Our Rights” brings together organisations from across the spectrum of rights to voice their concerns and to illustrate how the decisions and action of the government with respect to economic social and cultural right are affecting people on the ground. This report exemplifies a combined action by independent organisations, with a common focus of human rights, to hold the government to account for its responsibilities and obligations under the Covenant.

The reporting process

A fundamental feature of the process involved in a collective report such as this is to ensure maximum consultation with organisations working on the ground in relation to Covenant issues. Consultations were held in Cork, Galway and Dublin in an effort to gather information from as many bodies countrywide as was practicable. While most issues in the report would hold for communities rural and urban all over the country, in some cases such as poor broadband connectivity, the effect of transport quality in rural communities and its impact on people’s right to enjoy cultural life there are region-specific highlights.

Why is this important?

A comprehensive report with clear recommendations for the UN Committee on Economic, Social and Cultural Rights to consider when they compile their list of issues  means the Committee will have a more balanced view of what has been happening in Ireland since 2002. ‘Our Voices, Our Rights’ provides the committee with the opportunity to see the rights and issues in context. It also provides them with a clear view of the rights that have either not been progressed since the last review, or in the case of some rights, which have been regressed.

Our Voices, Our Rights: Economic, Social and Cultural Rights in Ireland

Why Budget 2015 must be that last of its kind

FLACHuman Rights in Ireland welcomes this guest post from Yvonne O’Sullivan of the Free Legal Advice Centres (FLAC). Yvonne is Advocacy and Policy Officer in FLAC.

Speculation on budget measures had circulated in media outlets in the final days before Budget 2015. Reports before the budget abounded that the architect group, the Economic Management Council (of Taoiseach, Tánaiste, Minister for Finance and Minister for Public Expenditure and Reform), had signed off on a suite of complimentary tax measures, benefiting lower to middle income earners as well as committing to investing in social housing stocks which were made real on budget day, Tuesday 14th October. Most people would agree that these are welcome measures, especially in the wake of serial austerity budgets, but how the Council reached such decisions deserves some attention.

As an example, let’s look at water charges. Huge public opposition to these new and significant charges, manifest in last Saturday’s mass demonstration, reportedly triggering the EMC to build into the budget a degree of financial support for those unable to pay for their water usage. Although these supports will aid some social welfare recipients and low income earners to pay for their water services, it is ultimately an extra cost which is not fully offset from the income gained in the reductions in USC and the income tax rates.

However, we have to ask why the government has only now taken on board the concerns of the public around affordability, when these water charges were announced last year in Budget 2014? Surely the time to assess the impact on the public would be from the time the government started planning to introduce the charge? Why would you wait until the Budget Day, after months of stress and worry for ordinary householders, inflamed by rumour on possible waivers and cost, and especially after the charges have already begun? Have these new charges made it impossible for people to live in dignity? Will water supply be adequate, affordable and accessible after charges are introduced? Has the state done an impact assessment on introducing these charges? Continue reading “Why Budget 2015 must be that last of its kind”

Why Budget 2015 must be that last of its kind

Socio-Economic Rights & Budget Analysis: Some Notes on Available Resources, ‘Progressivity’ and Non-Retrogression

FLACHuman Rights in Ireland welcomes this guest post from Dr John Reynolds. John is a lecturer in law in NUI Maynooth. These are John’s notes from the Free Legal Advice Centres (FLAC) seminar Fairer Budget, Fairer Society: A human rights analysis of Budget 2015 from Irish civil society held today, 16 October 2014. 

We are all too aware of the immediate and cumulative impacts that relentless austerity budgets have had on people in Ireland over the last seven years, with the brunt of that austerity disproportionately meted out on working class communities, low-income families and those most in need of social protection. Structural adjustment during that time has been implemented in keeping with right-wing thinking, coming in the form of a 2:1 ratio of cuts in services to tax increases (themselves often regressive in nature). Levels of poverty and inequality have deepened. Socio-economic protections have been resolutely subordinated by the state’s loyalty to financial institutions and the imperatives of transnational capital. There has been no departure from the race to the bottom for foreign investment in which Ireland is engaged, with the diversion of resources to corporate tax reduction measures continuing in various guises.

In the face of such market hegemony, what can international human rights discourse offer when it comes to social justice advocacy and budget analysis?

The distribution of housing, healthcare, education and water is rooted in the underlying struggle for resources between sectors of society, over which ideological lines are drawn and public policy is formulated. Rights to housing, healthcare, education or water, therefore, cannot be limited to narrow formalistic conceptions of justiciable legal claims. Implementation of the state’s obligations under international human rights treaties pertains as much to the legislative and executive branches as it does to the judiciary. All the more so when it comes to the International Covenant on Economic, Social & Cultural Rights, where constitutional protection for the rights that Ireland has pledged to uphold remains distinctly lacking. Deploying the language of socio-economic rights in this sense is best understood as one tactic within a broader strategy of progressive or radical politics aimed at distributive justice.

In this context, the increased attention devoted to budget analysis and fiscal policy in recent times by human rights organisations, UN Special Rapporteurs and legal scholarship is an important step in opening up the political space to socio-economic rights discourse. This is set against the backdrop of an evolving conversation on the need for a radical transformation from mainstream economics to the assertion of control over the market for social benefit. It is important to be clear from the outset, however, that the field of human rights itself is coming from a low base in this regard. International human rights mechanisms and bodies have traditionally maintained an agnostic approach to the choice of economic model, and as such have been weak in confronting financialisation and the neoliberal economic order. In 1990, at a watershed moment for the global expansion of neoliberalism, the UN Committee on Economic, Social & Cultural Rights took the opportunity to clarify that ‘in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach.’ While some inroads have since been made by UN Special Rapporteurs at least acknowledging that the policies of the World Trade Organisation can have negative consequences on social rights, for instance, an overarching ‘trade-related, market-friendly paradigm of human rights’ has implied acquiescence to the prevailing economic orthodoxy and its steady erosion of labour rights standards and public services.

Those structural constraints notwithstanding, there are strands of international human rights law and discourse that can inform a more progressive approach to budgetary policy when it comes to the state’s obligation to devote the ‘maximum of its available resources’ towards the realisation of economic, social and cultural rights. The Committee has stated that ‘the “availability of resources”, although an important qualifier to the obligation to take steps, does not alter the immediacy of the obligation, nor can resource constraints alone justify inaction’, and that ‘even in times of severe resource constraints, States parties must protect the most disadvantaged and marginalized members or groups of society.’ These ‘minimum core’ obligations are supplemented by an ongoing commitment to progressively realising the full range of economic, social and cultural rights for all.

A principle of non-retrogression has been constructed accordingly, under which retrogressive measures imposed in a developed economy should be almost impossible to justify. Aoife Nolan has suggested, however, that the past failures of the Committee on Economic, Social & Cultural Rights in clearly marking out the parameters of retrogressive measures (as well in engaging with issues around privatisation) have limited the capacity of social justice campaigners to contest specific budgetary moves as violations of the Covenant. The Committee’s practice does finally appear to be moving on this more recently though, perhaps prompted by the work of several Special Rapporteurs with mandates over socio-economic rights who have gone furthest in developing the normative framework around tax, fiscal and budgetary policy as it relates to available resources and non-retrogression.

Among the more progressive authorities in this regard have been Magdalena Sepúlveda as Special Rapporteur on Human Rights and Extreme Poverty, and Olivier de Schutter in his capacity as Special Rapporteur on the Right to Food. Before finishing her mandate earlier this year, Sepúlveda built on her previous examination of fiscal contractions and cuts to social protection systems as deliberately retrogressive measures in an investigation that emphasised of the critical role of fiscal policy, and particularly taxation policy, in tackling inequality and vindicating socio-economic rights. She highlighted, among other things, the needs to: increase reliance on direct and personal taxes on income; move away from indirect and regressive taxes on consumption; design taxes so as to that reduce regressive impact and gender inequalities, including in relation to unpaid care work; ensure that public revenue raised from the financial sector is commensurate to the sector’s profitability and the risks it generates; implement a financial transaction tax; and ensure that affected communities and future generations are protected in the exploitation of natural resources, with extractive industries taxed sufficiently.

De Schutter made submissions to Sepúlveda as part of this process, in which he reinforced the importance of raising taxes as a means available to states to progressively improve access to socio-economic rights, and warned of the converse negative impacts in allowing tax avoidance and tax incentives to foreign investors. He pointed out that a ‘regressive system of taxation seriously limits the redistributive aspect of [social] programmes’, concluding that in such circumstances a state is inherently failing to deploy the maximum of its available resources to the realisation of socio-economic rights. Another notable submission to Sepúlveda from the Independent Expert on the Effects of Foreign Debt on Human Rights emphasised that:

policy-based loans and debt relief from the international financial institutions typically require the borrower countries to implement a range of economic and fiscal reforms including the introduction of a value-added taxes and other regressive taxes, as well as tax holidays for foreign corporations. Although the ostensible aim of these policies is to promote economic growth and restore the debt servicing capacity of borrower countries, research indicates that they, in fact, have a negative impact on the realization of human rights over the longer term and that they have contributed to increasing poverty and marginalization among the poor in debtor countries.

These findings of the UN special procedures have been supplemented by academic analysis which suggests that counter-cyclical tax policies (to manage the periodic structural crises which are endemic to capitalism) are necessary to uphold the principle of non-retrogression.

The lack of adherence to principles of non-retrogression and tax justice in successive austerity budgets in Ireland since 2008 has been well documented. The Centre for Economic and Social Rights, for instance, highlighted the explicit priority given (in the National Recovery Plan 2011-2014) to ‘drastic cuts in social expenditures over progressive tax reforms in a country ranking among the lowest in Europe in terms of overall tax levels.’ Budget 2015 appears to stem the tide in terms of those drastic cuts (although the estimates provided by the government suggest that ‘real’ public spending—factoring in inflation—will continue to decrease through to 2018), but remains problematic from a social justice perspective when it comes to tax policy. Finance Minister Michael Noonan made reference in his Budget 2015 speech to the ‘progressivity’ of the Irish tax regime. The Department of Finance has repeatedly emphasised, even in the context of previous austerity budgets, that it equates the existence of income tax ‘progressivity’ with a normative concept of ‘fairness’. This focuses on one component of the tax system only, and fails to account for the trend toward taxes and charges that are regressive in character; that is, indirect taxes such as water charges or VAT increases, which are not progressively scaled according to concepts of equality or ability to pay. From a socio-economic rights perspective, such a shift to indirect taxation may not be ‘fair’ (the continuation of general ‘progressivity’ in the income tax regime notwithstanding) and may be retrogressive in effect.

In the context of Budget 2015, the net impact of newly introduced regressive water charges and the way in which income tax reductions are scaled means that those at minimum-wage level will benefit least in real and relative terms. Many of those earning between €15,000 and €35,000 will be actually be left in a worse financial situation overall next year. Those earning €70,000, more than double the average wage and falling within in the top 10% of income distribution, will benefit most in relative terms from the budget. The choice to devote available resources to reducing the higher rate of income tax has left social justice campaigners understandably ‘outraged’, and dilutes the progressivity of the income tax system.

The tax credits and benefit allowances offered as sweeteners to reduce water charges slightly does not alter the fundamentally regressive nature of the water tax, and fails to answer broader questions about the government’s decision to turn water into a commodity. As experience elsewhere has shown, it can be a very quick and slippery slope from commodification to privatisation. This is all the more the case in an international trade and investment climate that seeks to create increased ‘market access’ to natural resources and public services, as exemplified in Europe’s case in the Transatlantic Trade and Investment Partnership currently being negotiated with the United States. In this regard, the likelihood of commodification and privatisation amounting to retrogressive steps in the state’s fulfilment of the right to water must be weighed. In resisting these steps, as Paul O’Connell explains, the Right2Water campaign’s use of the language of rights to assert that water is ‘a public good that should be funded through general taxation, available to all on the basis of need, and protected from the vicissitudes and inequities of the market’ is more than a mere appeal to a legal provision; it is ‘a rejection of the idea that there is no alternative to the commodification of essential services and resources.’

Questions around budget deficits, borrowing and debt have garnered increased attention of late from international human rights mechanisms. A substantial chunk of the Irish state’s resources continue to be directed to interest repayments on the national debt, which includes socialised commercial bank debt. The work done under the mandate of the Independent Expert on the Effects of Foreign Debt on Human Rights, in particular in relation to conceptions of illegitimate debt, provides interesting tools with which to analyse the allocation of available resources to accumulated debt in relation to socio-economic rights obligations. Against the sense of a prevailing ‘dictatorship of no alternatives’, we have seen that it is possible to imagine radical alternatives in this sphere. Argentina recently passed legislation to conduct a public audit of its national debt with a view to assessing whether it is composed of any illegitimate or odious debt. Countries such as Ecuador and Norway have cancelled debt previously on the back of similar investigations. And just last month, the UN General Assembly adopted a resolution on the ‘establishment of a multilateral legal framework for sovereign debt restructuring processes’, aimed at preventing debt crises and financial speculation from undermining socio-economic rights in developing countries in particular. It was adopted by 124 votes in favour to 11 against. Despite our own harrowing debt crisis experience, Ireland voted in the minority with the global financial centres of Britain, US, Germany and Japan. This is telling of where the current government’s loyalties and solidarities lie, and of its attitude to financial creditors and socio-economic rights respectively.

A final point worth noting pertains to the norms of transparency and participation that international human rights standards require of a budgetary process. The Economic Management Council was created in the context of an ‘unprecedented national economic emergency’ that necessitated ‘strong, resolute leadership.’ This so-called “super-cabinet” structure was mandated to meet on a weekly basis to oversee key economic, budgetary and banking matters. Operating as ‘the equivalent of a war cabinet’, it is open to obvious critique as a further concentration of executive power, utterly lacking in democratic accountability and treading on precarious constitutional terrain. It was accepted by establishment commentators, however, as an exceptional, but temporary, necessity. In line with the tradition of the exception becoming the norm, the EMC was quickly championed by Dan O’Brien as ‘so good it should be made permanent.’ And despite the recent emergence of triumphalist narratives that the emergency has been overcome and the age of austerity is now behind us, there are no signs of the economic ‘war cabinet’ being dismantled. The other main site of decision-making power when it comes to the budget, the Department of Finance, formally accepts pre-budget submissions, but has shown little interest in meaningful external consultation. So while Irish civil society has developed a strong sense of engagement around budget policy, the impact of any alternative social vision presented remains marginal. This year, Social Justice Ireland presented analysis in its pre-budget submissions which examined six different options of income tax changes being contemplated by the government. The study concluded that ‘the most unfair option would be to decrease the 41% tax rate’. Yet this was the very course taken by the Minister for Finance, and one which he has defended as ‘very fair’

Socio-Economic Rights & Budget Analysis: Some Notes on Available Resources, ‘Progressivity’ and Non-Retrogression

Public Interest Law Alliance: Driving the law into activism and activism into law

PILAEithne Lynch is a solicitor who qualified with Matheson before leaving to work on a number of ‘access to justice’ projects in sub Saharan Africa. Eithne now works with the Public Interest Law Alliance (PILA) as their Legal Officer. PILA is a project of FLAC (Free Legal Advice Centres), an independent human rights organisation dedicated to the realisation of equal access to justice for all. 

Public Interest Law Alliance: Driving the law into activism and activism into law

In late March PILA held a major public interest law conference in Dublin, which highlighted the growth in use of law by social justice organisations. Entitled Using the Law to Challenge Injustice, PILA brought together lawyers, members of the judiciary, social activists, policy makers, politicians and students under one roof to develop public interest law ideas.  Over 400 people came together with one common aim; access to justice in Ireland must be universal, that everybody counts.

The conference’s keynote speech was delivered by former South African Constitutional Court Justice Albie Sachs. Justice Sachs was an anti-apartheid activist, and is a pioneer in the constitutional recognition of human rights. The conference was opened by Ms Joan Burton TD, Minister for Social Protection. In her address she said that the use of law by Justice Sachs and his colleagues to overcome a tyrannical system is an “exhilarating example of the law put to the greatest possible use to the benefit of a persecuted, marginalised and disadvantaged people”.

In his keynote address, Justice Sachs spoke of his initial involvement with the South African freedom movement as a young lawyer, and the beginnings of the Free Nelson Mandela campaign. He also described how, after Mandela’s release from prison, activists rolled out legal strategies to quickly advance public interest law issues.

As a Constitutional Court Judge, he was involved in several judgements that were ground-breaking for common law jurisdictions like Ireland, including S v Makwanyane (1995) http://www.saflii.org/za/cases/ZACC/1995/3.html which abolished capital punishment, the Grootboom case (2000) http://www.saflii.org/za/cases/ZACC/2000/19.html which found the State had a duty to provide adequate housing, and Minister of Home Affairs v Fourie (2005) http://www.saflii.org/za/cases/ZACC/2005/19.html which found it was unconstitutional to prevent same-sex couples marrying.

PILA invited Justice Sachs to speak at this conference to inspire attendees; that anybody – not just the elites – can use the law to change society, and to ignite a passion for using the law to create real social change.  You can watch Justice Sachs’ address here. Justice Sachs drew parallels between the vibrant NGO community in South Africa and Ireland. Justice Sachs said that “freedom is something you feel, is part of your culture, your temperament, the way you see the world”; it is woven into the fabric of a society. Freedom once obtained must be nurtured; protected and vindicated by a robust legal system.  He recounted how as a judge sitting on the South African Constitutional Court, the more controversial the issue was, the more important it was to have advocates presenting solidly researched material and arguments – thereby assisting in the development of jurisprudence on strong foundations. To achieve this, collaboration between front line social activists and legal experts is crucial.  Justice Sachs praised the ability of civil society organisations to bring an independent voice to court and to focus on the wider social implications a case may have.

With the challenge set, a plenary panel discussion considered the potential of public interest law to create real social change.  The members of that panel were FLAC Director-General Noeline Blackwell; the PILS Project’s Gerry Hyland; FLAC Chairperson Peter Ward SC; Trinity College Dublin Associate Professor Gerry Hyland and Seanad Eireann Senator Katherine Zappone. The panel reflected on Albie Sachs’s keynote address, and lessons that could be applied from the South African experience to Irish human rights and public interest practice. Senator Zappone recounted her experience of challenging the failure of the Irish government to recognise her marriage to Ann Louise Gilligan.  Senator Zappone spoke of the challenges of navigating the Irish legal system, the long process and the barriers that they had come up against.  Peter Ward SC talked about the role of PILA and how the progress it has made in the area of public interest law needed to be fostered and protected even in an uncertain funding environment.

The afternoon session of the conference featured four breakout sessions, where attendees engaged in practical discussion and learning on pro bono work, helping civil society organisations to use the law, ombudsmen and alternative routes to justice and clinical legal education. Without exception each breakout session raised difficult questions and led to lively and engaged debates on the core topics under discussion.

The session on pro bono work illustrated the difficulty with accessing the courts by civil society and individuals, with costs remaining a huge barrier. While flaws in the civil legal aid system were acknowledged, it was also pointed out that there are areas of unmet legal need that could potentially be addressed through pro bono legal work.  The panel was chaired by Miriam Buhl of US law firm Weil Gotshal, who was joined by David Hillard, Pro Bono Partner with Clayton Utz. The two international lawyers shared with the attendees the approach to pro bono legal services in the US and Australia respectively.  The ensuing discussions revealed that no one size fits all and that approaches to pro bono legal services in Ireland are still evolving and developing!

The consensus which came out of the breakout session with NGOs was the vital importance of working with other organisations to share knowledge and advance a position on particular areas of law reform. In terms of using the law, many of those present expressed frustration that legal cases take so long, so the initial starting of the momentum for law reform is very important. Associated with this, it takes a substantial amount of time for NGOs to build the confidence and know-how which may eventually lead to law reform.   It can be scary for an organisation – big or small – to even contemplate litigation, but the group talked about other ways to effect change, such as advocacy backed by solid legal briefings.  Indeed, it was remarked that over the past four years PILA has proven itself adept at facilitating exactly this type of collaboration. Separately, the point was raised by a number of organisations that it is very important to bring legal actions even if they don’t ultimately win, particularly because it can be a platform to raise awareness of issues and how their client groups are affected. The example of litigation around transgender rights was discussed as a prime example, as the Foy case has raised awareness of transgender rights generally and to a wider audience. Law is an important weapon to help marginalised groups ensure their rights are respected, especially where there is no political will for law reform to benefit smaller groups within society.

The session on alternative routes to justice was chaired by Dr Carol Coulter of the Child Care Law Reporting Project with Carmel Foley of the Garda Ombudsman’s Commission joined by representatives from the offices of the Children’s Ombudsman and the Ombudsman.  The session was highly interactive with many attendees highlighting the confusion over to which office to address a complaint. There was criticism of how an office decides which the most appropriate forum for a complaint is and how they should collaborate if needed. The session also highlighted general public confusion about what office covers what issues and what public bodies and also about what stage the ombudsman can be approached. If these alternative routes to justice are to become truly accessible, it was suggested, better guidance must be provided.

The session on clinical legal education was chaired by Larry Donnelly, Lecturer NUIG with the panel comprising of undergraduate students from a cross section of universities around Ireland. The session enabled the exchange of ideas and approaches to clinical legal education and to inspire future lawyers to embrace public interest law as an inherent part of their professional duties when they proceed into practice.

The conference concluded with a lively round-up panel hosted by journalist and broadcaster (and barrister) Vincent Browne, where some challenging questions were put. The conference was a great success, with the capacity crowd illustrating the strength of the public interest law movement in Ireland.  The impact of PILA in contributing to this development is unquestionable – over the past four years, its pro bono referral scheme has facilitated more than 200 legal referrals for organisations as well as arranging dozens of legal education sessions and law reform working groups focused on using the law for the benefit of people living with disadvantage.

Visit www.pila.ie to watch the keynote address given by Justice Sachs and view coverage of the event.

Public Interest Law Alliance: Driving the law into activism and activism into law

2014 Thomas Addis Emmet Fellowship in International Public Interest Law

FLACThe Free Legal Advice Centres (FLAC)  is now welcoming applications from law students, graduates, postgraduates and Law Society students for the 2014 Thomas Addis Emmet Fellowship.

The Fellowship is run in conjunction with the University of Washington in Seattle, US every summer. The successful applicant works for two months as an intern and gains first-hand experience of human rights and public interest legal cases.

To apply, please download and complete the application which is available here. Application forms should be accompanied with a comprehensive CV and returned no later than 14 February 2014, to FLAC Head Office, 13 Lower Dorset Steet, Dublin 1.

2014 Thomas Addis Emmet Fellowship in International Public Interest Law

Challenging Illegality: Direct Provision, Social Welfare Law & Asylum Seekers in Ireland

Houses of OireachtasThe Office of the Ombudsman has recently played a significant role in highlighting  maladministration in the operation of our social welfare legal code, in particular in relation to  supplementary welfare allowance and direct provision for asylum seekers over the last few days.

Supplementary Welfare Allowance and Direct Provision

The Ombudsman has release her report, Appeal Overruled: A failure to provide basic income for a family seeking asylum This report related to the refusal of a Superintendent Community Welfare Officer to implement in full a decision of an Appeals Officer that an asylum seeker was entitled to the full rate of supplementary welfare allowance, a basic income paid to all whose means do not meet their needs. The complainant arrived in Ireland prior to 2009 so was not excluded, as such, from receiving supplementary welfare allowance, however was placed within the direct provision system (see here for extensive evaluations of the direct provision system). The complainant left for very serious personal and health reasons. Despite decisions of social welfare Appeals Officers being “final and conclusive“, the decision was not implemented for 13 months and the Superintendent CWO decided, without ever putting this issue to the complainant, that she was not habitually resident. The actions of the Superintendent CWO, seeking to undermine the decision of an Appeals Officer and making unwarranted assumptions about the ‘high quality’ of the direct provision accommodation that the complainant left (after a suicide attempt by her daughter) came in for particular criticism from the Ombudsman.  It also should be noted that the actions of other employees of the HSE, social workers and Child and Adolescent Mental Health Service, were praised for their actions. The decision of the Superintendent CWO to refuse to abide by the decision of the Appeals Officer was “incorrect and without justification”. The Ombudsman recommended that a consolatory (time and trouble) payment of €3,000 be made to the complainant due to the actions of the HSE and noted the severe impact that the non-payment of supplementary welfare allowance had had for this complainant and her family. In concluding her analysis, the Ombudsman noted:

….[I]n finalising this report, the Ombudsman has been aware of the significant and growing public unease regarding the arrangements for asylum seekers in this country. More and more questions are being raised now about the appropriateness of  the ‘Direct Provision’ arrangements particularly as they impact on family life, on mental health and on the welfare of children. However the Ombudsman, on the basis of one investigation cannot purport to make a finding on this general issue.

 

Towards Legality in Direct Provision

Asylum seekers have been excluded (since the Social Welfare and Pensions (No. 2) Act 2009) from receiving supplementary welfare allowance. When direct provision was introduced, it was purportedly done under the supplementary welfare allowance scheme (see the  Free Legal Advice Centre‘s extensive work on this issue here and my 2007 article on direct provision here ), with accommodation and food in kind, and a small allowance to make up the total maximum payment that can be made under the supplementary welfare allowance scheme. I would argue that since 2009, whereby asylum seekers are now absolutely prohibited from receiving supplementary welfare allowance, there is no legal basis for the Department of Social Protection to continue to make the small monetary payment of €19.10 per week per adult and €19.10 per week per child.   In recent weeks, Senator Jillian van Turnhout and Derek Nolan TD have raised the issue of direct provision in the Oireachtas. Senator van Turnhout asked the Minister for Justice what the legislative basis for the payment of €19.10 per week is, given that the 2009 Act excludes asylum seekers from receiving supplementary welfare allowance.  The Minister for Health (standing in for the Minister for Justice) stated that direct provision was merely an administrative scheme for which there was no need to have any legislative basis . The Minister for Health noted that:

…flexibility and adaptability of the direct provision system would not be assisted but, possibly, hindered by specific legislation underpinning it.

In response to Derek Nolan’s question, the Minister for Social Protection, Joan Burton TD stated:

Following the introduction of the statutory habitual residence condition in May 2004 and subsequent legislation, asylum seekers are not entitled to receive most social welfare payments. The payment of the weekly direct provision allowance is made on an administrative basis by this Department on behalf of the Department of Justice and Equality.

So the core argument emerging from government ministers, is that direct provision payment is a wholly administrative scheme  unrelated to legislative provision of supplementary welfare allowance.  Successive Ministers for Social Protection have stated that the €19.10 per week per adult/€9.60 per week per child, is a supplementary welfare allowance payment (see here and here).

In addition, Article 35 of the Social Welfare (Consolidated Supplementary Welfare Allowance)Regulations 2007 headed ‘Non-Cash Benefits’ states that where asylum seekers made an application for supplementary welfare allowance (prior to the 2009 Act) the following would be excluded:

 …the net cash value to the person of meals, accommodation and related services provided under a scheme administered by the Department of Justice, Equality and Law Reform and known as direct provision, where the costs are met in full by the State.

The approach of successive governments towards direct provision and their failure to grasp the issue by the neck, now means that at the very least, the Department of Social Protection are acting outside its powers and contrary to the Social Welfare and Pensions Act 2009 by providing the €19.10 per week to asylum seekers (regardless of whoever the Department of Social Protection believes it is acting for). The approach of the current government, in seeking not to provide a legislative basis for direct provision accommodation and direct provision payment, is part of an overarching strategy since the introduction of direct provision to ensure that asylum seekers in Ireland lack the most basic of rights. While government ministers correctly point out that we have international obligations to ensure that asylum seekers are not destitute while their protection claims are being assessed, this must be done so in a manner that complies with Irish social welfare law. There is an urgent need to ensure that if the government is to continue to utilise the system of direct provision to meet our international obligations, clear legislation is introduced that sets down the right of asylum seekers to access direct provision. It is hoped that it will not take a full investigation by the Ombudsman to highlight to government the totally unsatisfactory nature of the administrative-legal regime that governs direct provision.

Challenging Illegality: Direct Provision, Social Welfare Law & Asylum Seekers in Ireland