Eithne 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.