Mr. Christopher McCann:

I thank the Chair. The Free Legal Advice Centres, FLAC, welcomes the opportunity to participate in this committee's hearing on the subject of access to housing and accommodation, including Traveller-specific accommodation. Since early 2020 FLAC has operated a dedicated Traveller legal service, supported by the Community Foundation for Ireland and in co-operation with a steering group of representatives from all of the national Traveller organisations. The purpose of the Traveller legal service is to address and highlight the unmet legal need of the Traveller community, through legal representation and the provision of legal training and assistance to Traveller advocates.

Since its launch, the Traveller legal service has received more than 90 inquiries from Travellers and Traveller advocates requesting legal assistance. To date, the Traveller legal service has formally represented Travellers, either through entry into or bringing proceedings, or preparing a case and issuing pre-action correspondence, in 20 instances. While many of these cases involve the consideration of multiple areas of law, the majority concern housing law issues, such as the failure to provide Traveller-specific accommodation, inadequate standards in Traveller-specific accommodation, evictions and the failure to provide emergency accommodation. FLAC’s evidence to the committee is predicated on its experience of providing legal assistance to the Traveller community via the Traveller legal service. It is our firm belief that equal access to justice, an unrealised ideal in the State, must form a core element of addressing the issues being considered by the committee today.

While there is no unitary definition of what the right of access to justice entails, its importance to societies governed by the rule of law is reflected in the recognition of aspects of the right under the Constitution and also international human rights instruments, such as the European Convention on Human Rights and the EU Charter of Fundamental Rights. Access to justice can be conceived of as a gateway right, meaning that it operates as a prerequisite to the fulfilment of other substantive rights. Without the possibility of receiving access to legal information, early advice and representation, an individual’s entitlements under the law are rendered illusory. By way of salient example, it took a judgment of the High Court in the case of University of Limerick and Ryan to first recognise the State’s statutory obligation to make provision for Traveller-specific accommodation.

It is well documented that the State is undergoing a multidimensional housing crisis. One aspect of this crisis is the disproportionately high level of homelessness among Travellers. A long-standing and related aspect is the failure of the State to deliver on its commitments as envisaged by the Housing (Traveller Accommodation) Act 1998, which has resulted in a chronic under-supply of Traveller-specific accommodation. In FLAC’s experience, many of the issues faced by Travellers in relation to housing, such as challenging evictions, accessing emergency accommodation, or being provided with Traveller-specific accommodation, are justiciable issues. That is to say, they are issues which require the input and expertise of legal professionals and, if necessary, the judgment of a court, to clarify and enforce entitlements and obligations. Notably, FLAC’s experience is in fact consistent with international research, which has found that vulnerable groups are more likely to suffer from justiciable problems.

As it is currently constituted, the State’s scheme of civil legal aid does not explicitly extend to the provision of advice and-or representation in cases concerning housing and evictions. Nor could the scheme respond in a sufficiently timely manner to evictions, which in some circumstances see Travellers provided with no notice or a period of 24 hours in which to vacate a site, on pain of potential prosecution and-or having his or her caravan impounded. Civil legal aid is also currently unavailable to parties appearing before quasi-judicial tribunals such as the Workplace Relations Commission. The import of this is that a Traveller who has been discriminated against in the provision of housing or access to Traveller-specific accommodation, an issue which has been very comprehensively highlighted by our co-attendees, the Irish Human Rights and Equality Commission, that Traveller cannot access legal aid to litigate his or her claim with the benefit of advice and representation.

The remainder of FLAC’s evidence addresses recommendations for the reform of housing legislation as it relates to Travellers. However, it is our firm submission that any reform of substantive law must be accompanied by an expansion of the scheme of civil legal aid to unambiguously offer and provide advice and representation on matters related to housing, evictions and appearances before quasi-judicial tribunals.

In regard to eviction legislation, a local authority wishing to evict a Traveller living on the roadside or an unofficial site has no fewer than five separate legislative mechanisms to do so. Each of these mechanisms carries with it a risk of prosecution, of the Traveller having his or her caravan, that is to say his or her home, towed and-or impounded, and all but one may be invoked on short or no notice and without prior or subsequent recourse to a court or other independent authority. In particular, under the provisions of the Criminal Justice (Public Order) Act 1994, commonly known as the criminal trespass legislation, the mere presence of a Traveller's caravan on local authority land without explicit permission constitutes an offence. That is an offence for which the Traveller legal service’s clients have in fact been prosecuted. In contrast to that situation, a local authority wishing to evict someone from a dwelling which it owns, even where there is no legal basis or right for the person being there, must first apply to the District Court for a possession order. The proceedings are on notice to the person against whom the order is sought and the order may only be granted by the court if it is satisfied that it is proportionate and reasonable, having regard to all the circumstances of the case. In FLAC’s submission there is no justification for the disparity between the protections afforded to a squatter in a local authority dwelling and the absence of such protections for Travellers living on unauthorised sites. Indeed, the European Committee of Social Rights has found that Ireland is in fact in breach of Article 16 of the Revised Social Charter for the continued use of certain of these provisions in the absence of adequate safeguards, such as the provision of legal aid, for those against whom the provisions are invoked.

FLAC has therefore recommended for the introduction of reforming legislation to ensure that, other than in the most exceptional circumstances, a family home can never be interfered with, and not until there has been a merits based determination involving a proportionality assessment by a court, and accompanied by a requirement to offer alternative appropriate accommodation to homeless families.

On the issue of Traveller-specific accommodation, in 2018 then Minister of State at the Department of Housing, Planning and Local Government, Deputy Damien English, established an expert group to review the Housing (Traveller Accommodation) Act 1998 and other legislation impacting on the provision and delivery of accommodation for Travellers. The expert group’s report was published in July 2019 and it concluded that the 1998 Act must be overhauled, its failings having been evidenced by an extremely high rate of Traveller homelessness, failures to meet the scale of accommodation needed by Travellers and an increase in those living in overcrowded conditions. FLAC considers that the recommendations of the expert group must be implemented in full and without further delay. In particular, FLAC considers it a serious flaw of the 1998 Act that councillors may adopt a programme for the provision of Traveller accommodation for a period of five years, which the local authority is legally bound to implement, yet vote against the delivery of components of that programme with impunity. This pattern of voting for, and then against, Traveller accommodation, has been identified as a significant blockage to the delivery of Traveller accommodation by the Traveller legal service's clients, by the steering group which oversees the service, the expert group report and also independent research commissioned by the Housing Agency.

In circumstances where this committee’s current module is examining the issue of access to Traveller-specific accommodation, it cannot ignore the evidence pointing to the actions of councillors in voting down plans for Traveller-specific accommodation as a significant obstacle to be addressed. Accordingly, FLAC concurs with the recommendations of the expert group for the introduction of legislative provisions suspending the reserved function of councillors for the approval of proposals for Traveller accommodation, and also for the introduction of legislative provisions providing for an alternative and direct route for Traveller accommodation to be provided through An Bord Pleanála.

FLAC’s evidence today has addressed a number of issues which are raised in its written submission. These are the matters we wished to discuss in the time available to us today.

However, we would really encourage the committee to review and consider the written submission in full, which also refer to the issues of Garda vetting of social housing candidates; standards in Traveller accommodation; the application by local authorities of a local connection test; section 42 of the Irish Human Rights and Equality Commission Act 2014, commonly known as the public sector duty; and an expansion of the Equal Status Acts. My colleague, Ms Lucey, and I are happy to address any questions the committee may have. We thank the Chair for the opportunity to speak to the committee today.