Ms Rachel Power:

I thank the committee for having us before it today. Public interest law is not something that necessarily gets much attention in public discourse, but it is at the core of our work as we promote a healthy environment for public interest law to develop in Ireland. When we speak about public interest law we are not specifically speaking about going to the courts as for us it is much broader than this; it is about allowing vulnerable groups input to various processes which affect their lives, such as the legislative process. Sometimes litigation is the only way possible and the only course of action. This is what happened for many of the litigants who spoke at the Changing Ireland, Changing Law seminar. It was the last and only way to vindicate their rights. Speaking to us at the seminar were seven litigants from six cases over 40 years, and the people who spoke were all very different types of litigants. Some very much wished to highlight an issue and some were at crisis point, but none of them took the decision lightly. For all of them it was last course of action upon which they wanted to embark.

For FLAC and PILA, the starkest reality was the delay in most of the cases. One might think this is nothing new for the justice system, but the delays involved in these cases are quite striking. Dr. Lydia Foy pursued her case for a new birth certificate for more than 20 years. It took Senator David Norris 14 years to see the decriminalisation of homosexuality. It took almost ten years for Gandhi Mallak to get his citizenship, and he has still not been given the reason he was refused naturalisation. This is a very long and painful process for people who must put their lives on hold.

We have delays in our justice system but we also have new processes and new ways to dealing with these delays, such as the commercial court system, which has proved very effective and efficient in speeding up the determination of cases. Why is this fast-track litigation only available when it comes to business? The most resources are put into the commercial law list. Why are similar resources not put into other lists, particularly lists that can contribute so much to the public interest jurisprudence of the State?

We spoke much of the Legal Services Regulation Bill, which was up for discussion this week and last week. Nothing in the Bill deals with the latent inefficiencies of our system, and something which FLAC has raised over again is that the system across the board must put money and energy into coping with this day in day out. FLAC has advocated on this issue, and at this point we suggest the review period in the Bill should be used to assess whether the new legislation actually assists and facilitates access to justice through the timely and efficient administration of justice. If it does not, it is time that resources are put into making improvements in the system.

The court system itself is part of the delay. Another part is the efficient and effective implementation of judgments. The case of Dr. Lydia Foy was taken by FLAC and although Dr. Foy won her High Court case in 2007 it was not until this year, eight years later, that the relevant legislation was introduced in the country. During these eight years Dr. Foy had to continue to campaign and use her energy to fight for her rights, FLAC had to resource the fight to bring the legislation into being and the rights of the trans community in Ireland continued to be undermined. The European Convention on Human Rights Act, under which the case was brought, was also seriously undermined. This is the mechanism which protects those rights not protected under the Irish Constitution. These are not acceptable delays when comes to the vindication of rights and they are not acceptable frustrations to change.

As Dr. Rogan mentioned, costs are unquestionably the single biggest barrier to public interest litigation. When we speak about costs in terms of public interest law we are not speaking about the costs of our litigant taking the case, because quite often these cases are taken pro bonoor on a no foal no fee basis. We are speaking about the financial roulette that arises should a case be lost and an adverse costs order is made against the client. This can quite legitimately bankrupt somebody if it is of sufficient size. The very nature of public interest litigation is that it is unpredictable because it occurs in areas where the law is uncertain and needs clarification. This means we can be certain a case will win in very few circumstances, therefore, the chance and risk a public interest litigant takes in deciding to take a case is very huge. When it comes to public interest litigation, the Government is usually on the other side as it is usually the defendant. When one weighs the significant resources of the State with the resources of many of our public interest litigants it is frightening how easy it is to chill an individual out of taking a case.

There are various ways in which certainty as to costs is possible. One of them is a protective costs order, which can be seen in other jurisdictions. This is where an order as to costs is made at the outset of the litigation, providing certainty at the beginning so a plaintiff knows exactly what the risk is. There is no provision for this so far in the Irish State. FLAC advocated for its inclusion in the Legal Services Regulation Bill, but unfortunately this was another missed opportunity.

I will close on some thoughts that came from practitioners on taking public interest litigation cases. Test cases and public interest litigation are specifically excluded from civil legal aid in this country, so a vast majority of cases are taken by very small firms and some are taken by independent law centres, such as FLAC. What came across during the Changing Ireland, Changing Law series was the very real pressures in taking those cases because they are large cases that can be all-consuming for some small practices. It is a very real issue that lawyers do not take cases simply because they have to earn a living elsewhere. There are cases that lawyers want to take, as they want to challenge injustices that are present, but the cases are not being taken. Much work must be done in civil legal aid across the board but if the ban on civil legal aid taking test cases was removed and the Legal Aid Board was allowed perhaps to contract out this kind of work to NGOs and to other firms, it would create a much more welcoming environment for those cases.