Oireachtas Joint and Select Committees
Wednesday, 25 November 2015
Joint Oireachtas Committee on Justice, Defence and Equality
Social Change in Ireland: Discussion
The joint committee will now hear a presentation on a research project entiled, Changing Ireland, Changing Law, by Senator Ivana Bacik, Dr. Mary Rogan and Ms Rachel Power from FLAC who are most welcome. I draw their attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. Members should be aware that under the salient rulings of the Chair, they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
It feels strange to be sitting on the other side of the table. I will not say very much as I will leave most of the talking to my colleagues, Dr. Mary Rogan and Ms Mary Power from FLAC and the PILA. I am very grateful to have the opportunity to address fellow committee members in a different capacity on the research project in which Dr. Rogan, Ms Power and I have been involved in the past year. Dr. Rogan will describe the project in detail. It is entitled, Changing Ireland, Changing Law, and looks at public interest litigation and the way in which legal cases have achieved social change in Ireland. This is the final stage of the process.
We were very privileged to have a range of speakers at the seminars we ran. We heard from litigants who had taken cases and from lawyers and academic experts. One of the litigants from whom we heard was Dr. Micheline Sheehy-Skeffington, who is in the Visitors Gallery. She spoke to us earlier this year about her experience in suing NUI Galway over gender discrimination in promotion. Professor Mark Bell from Trinity College Dublin is also in the Visitors Gallery. He spoke to us about the use of public interest litigation in furthering LGBT rights. I also acknowledge Ms Noeline Blackwell, director of FLAC, who is also present. The PILA, the public interest law alliance of FLAC, was our lead partner in the research project which we considered would be of particular interest to Oireachtas Members, particularly to members of the Joint Committee on Justice, Defence and Equality, because we were looking at the question of access to justice and how we could support and strengthen public interest litigation to ensure litigants in cases who were seeking to achieve social change would be supported.
Dr. Rogan is head of law at the Dublin Institute of Technology and will speak in a little more detail about the project.
Dr. Mary Rogan:
I thank the Chairman, Deputies and Senators for giving me the opportunity to make a presentation on the findings of the research project, Changing Ireland, Changing Law. We had three key objectives, the first of which was to explore the connections between the law and social change and to examine the ways in which the law had not kept up with the pace of social change in Ireland and where it had been used as a tool of social reform. In that spirit, our second key objective was to examine a number of key public interest cases, cases which had been taken in the public interest or which were of major social importance, and to explore the stories behind them. We wanted to hear the personal stories behind them from the litigants involved and the lawyers and academic commentators who gave us a broader perspective on the relationship between the law and social change. As Senator Ivana Bacik said, access to justice was our key theme. By exploring these stories we wanted to examine the barriers which people faced when trying to vindicate their rights by engaging with public bodies and decision-making processes and the barriers and hurdles they faced when they had to take legal action. Our third key objective concerned NGOs, which have contributed so much to social and legal reform in Ireland. We wanted to hear from them about the strategies and tactics they had employed to create and support legal reform and advocacy for change in Ireland and abroad. We partnered with them to hear about their experiences of engaging in social and legal reform in Ireland.
I will say a little about the structure of the project. We were funded primarily by the Irish Research Council, with additional contributions from Trinity College Dublin. I commend the Irish Research Council for providing this funding stream, called "engaging civic society", which allows academics to partner with non-governmental organisations to carry out a piece of research or engage in public awareness work. It is a valuable mechanism whereby academics, practitioners and policy makers can bring their work together to bring research to a policy-making audience. It is in that spirit that we are before the committee. We also partnered with the Gay and Lesbian Equality Network, GLEN, and the Immigrant Council of Ireland, as well as the National Women's Council of Ireland.
We held four seminars which addressed the connections between the law and social change in these key areas. A number of findings and themes have emerged from our work and we have provided a briefing paper which has been circulated. I draw members' attention to a number of the key themes that have emerged thus far. The first is the importance of NGOs to Irish society and our democracy. This is a particularly pressing issue in the light of the ever-challenging funding environment for NGOs and the particularly challenging funding environment in which non-governmental and voluntary organisations find themselves with the planned and well flagged winding down of many philanthropic bodies. The importance of the activity of NGOs in raising awareness of issues which require legal reform and social change cannot be underestimated. Litigation may be a part of their activity, but they engage in many other strategies to support social reform and a well functioning society. This focuses attention on the importance of adequate funding for the NGO and voluntary sector.
The second key theme to emerge from our discussions is the question of how individuals navigate State bodies. When an individual is faced with a decision of a public body or an administrative organisation, a lot of barriers can be placed in his or her way as he or she tries to challenge or address that decision.
I am sure all of those present are very familiar with these types of instances.
A key factor identified throughout the seminars was the lack of reasons given by public decision-making bodies for their decisions. This can be very challenging for the individuals affected by the decision. They do not know what must be amended in their behaviour to reapply. They may not be aware of the precise basis of the difficulty which had been put forward. They may be unsure of the way forward and unable to rectify the matters which gave rise to the negative decision. Delay is often a difficulty in these administrative decision-making processes.
A strong theme in all of the seminars was the intimidating hurdles faced by people who choose to litigate or who are forced to litigate to vindicate their rights. They are often vulnerable individuals because of the circumstances giving rise to the need to litigate, and they have very limited provision for civil legal aid. Added to this is the very real prospect of being sued for costs. The financial indications of a case can have a significant effect on preventing people from taking litigation to vindicate their rights. Delay is often a factor, with many cases taking a very long time. Other issues which can be a significant barrier to people seeking to vindicate their rights are the publicity which may be attracted by the case, the fact the process can be difficult to understand and the cumbersome nature of our legal process. We felt it was important to recognise the courage of the litigants who told their stories at our seminars.
Another theme that emerged was the question of whether alternatives to litigation can be developed to vindicate rights. The legal process is a high-stakes business, and the implications for the individual are severe. The question of costs can be a huge factor influencing a person not to pursue something which is very important to him or her. This means the legal process may not be the most appropriate mechanism for the vindication of rights in many instances. We feel that rights-proofing policy and regulatory impact assessments are critical mechanisms at the preventative level for supporting the vindication of rights. We also feel the country's appearances before international human rights bodies have an important role to play in learning and promoting best practice. Other mechanisms, such as mediation and alternative legal processes, should be examined, particularly in the areas of administrative decision-making where bringing a matter to the High Court may not be the most efficient form of recourse nor the most effective.
A further key issue we identified was the lack of a class action procedure in Ireland, which gives rise to the difficulty of not having a legal process by which one can create systemic or systematic change. Ms Power from the Public Interest Law Alliance, PILA, has a number of particular and precise recommendations we wish to bring to the committee.
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.
I would not do so. I am only joking.
I thank the witnesses for the presentation. For the most part, I support everything that has been said. Mediation and other such approaches are a very good idea. Reference was made to new ways of dealing with cases. Mention was made of Dr. Lydia Foy, who happens to come from my home town originally. My family know her well. What other way could her case have been dealt with in terms of the new approaches? I understand the point made about access to justice and a last course of action for many. If someone takes a case, then he or she really feels very strongly that there has been an injustice against him or her. He or she would not take such an approach lightly. I agree that most money is pumped into commercial law, which is not right. What other way could Dr. Foy’s case have been dealt with to have avoided it taking eight years?
Ms Rachel Power:
Initially, the delay arose because the State appealed her High Court case. That continued for about two years or more while the State was pursuing an appeal because it did not take responsibility for the breach of the European Convention of Human Rights. It took much lobbying and campaigning on behalf of FLAC for the State to drop the case.
I refer to the High Court judgment itself. Judge McKechnie expressed much frustration in the 2007 judgment that nothing had been done by the State in the previous five years because there had been a European Court of Human Rights decision against the UK on the very same point, with almost identical legislation. The State had five years to do something and it chose not to. Again, Judge McKechnie was emphatic in his judgment in saying that he hoped the State would follow the UK in implementing the change quickly but that did not happen. Successive Governments, right up to 2015, promised change but it did not happen. There are many opinions as to what the issues were, namely, various conservative legal or medical opinions on the issues, bureaucracy or the fact the issue was not urgent for the Government of the day. I do not know if that is a question we can necessarily answer because that was the decision of the State over those eight years.
Dr. Mary Rogan:
I thank Deputy McFadden for her question, which I think feeds into the response Ms Power has given as well, namely, the idea that one would take a preventive approach to human rights. The Deputy asked what the alternative might have been in the Foy case. Perhaps when a case such as that one comes onto somebody’s desk, it could be viewed as an opportunity for learning and looking at what other places are doing and seeing whether we could respond to it in a different way rather than throwing defensive legal resources at it.
In the case of rights proofing and regulatory impact analysis, that is really about when legislation is being proposed, that allied to that there would be some sort of analysis or assessment done where human rights might be impacted. One can think of a whole variety of areas in which this would be relevant. The Legal Services Bill might be one of them. Other obvious areas could include prison conditions or penal reform, which is my area of interest. If one makes a change to legislation, tied to that, one would have an assessment done, perhaps by the Department of Justice and Equality or elsewhere, which would set out the implications for human rights of the particular legislation. The analysis would be quite specific, not just a broad based view of what human rights entails but now it would affect individual rights. It would be done as part of a pre-legislative scrutiny kind of process.
I apologise as we had to go for a vote but I suppose that is democracy in action. Senator Bacik could have avoided being present because she is totally on top of her brief in this regard.
In the context of pre-legislative scrutiny of Bills in terms of human rights, I believe it should be proofed on a range of different angles. The more it is proofed, the better the legislation is. Could the witnesses point to international best practice in this area or does Parliament, as is the case in this country, end up proofing legislation from a human rights perspective or any other perspective?
Reference was made to the importance of NGOs. I agree they play a critical role. Is it the contention of the witnesses that the Government does not have the type of engagement with NGOs it should have in the pre-legislative scrutiny period or at any stage? Do they believe NGOs need to streamline in the way organisations under the ambit of the public service have done, for example, the Irish Human Rights and Equality Commission coming together? I think the two agencies were a perfect fit. I contend that there are probably too many NGOs. Should NGOs form synergies and come together in order to be much more influential and effective?
Dr. Mary Rogan:
I thank Senator Conway. He has asked some really challenging questions. In respect of the issue of human rights proofing and who might do that, I would not advocate any new elaborate structure by which that would have to be carried out. It could very much be done at departmental level, with the assistance of academics, lawyers and NGO partners, to examine legislation rather than creating any new formalised structure. Something we mentioned previously is the notion of a human rights committee within the Oireachtas, which I accept has the critical role for proofing pieces of legislation. What is at issue is the capacity by which that can be done. Perhaps that relates to the second point about engagement with NGOs. The more there is engagement and consultation with the academic world and NGOs, the better as those are the kind of things which will provide the best approach to support human rights proofing of legislation. That could be done on an informal level rather than having a big elaborate structure around it.
I will not say whether I think there should be fewer NGOs because I am sure many people will have very strong views on the matter. As somebody who is involved in the NGO sector as well as in the academic world, it is critical the consultation processes are perhaps more formalised. There are some really good examples where NGOs are brought into discussions at the earliest stages and that is when one airs the issues and prevents problems at a later point.
Senator Conway asked whether there are perhaps too many NGOs. This is not quite the same point but what I would like to state is that the question of professionalised NGOs is really important, and that is about funding. This is becoming a really critical issue in this country with the departure of many of the philanthropic bodies or a reduction in the level of funding which they can provide. A professionalised NGO sector is essential. I am not sure whether that is about a multiplicity of NGOs but the critical issue is that it is professionalised with full-time, salaried people who are working in NGOs who can support Government and policy reform.
I would agree with Dr. Mary Rogan's analysis. In the disability sector, there are 400 or 500 advocacy organisations. There was a value-for-money audit done on all of those by a gentleman whose name escapes me and it recommended a certain streamlining where organisations were doubling up. Dr. Rogan's approach, in terms of professionalising, would force amalgamation and synergies. Let us see what happens.
If we are all done, I have just one or two questions. I am interested in this class action proposal. In some other jurisdictions, it is powerful. Would Ms Power elaborate on why it does not happen here, what would be needed for it to happen here and what would be the advantages?
Ms Rachel Power:
Currently, we do not have a class action procedure. Over ten years ago the Law Reform Commission completed an extensive study on it, weighing up all of its various advantages and disadvantages and coming to the conclusion that it would be beneficial in Ireland and would very much benefit access to justice by permitting more people with fewer resources to vindicate their rights in various ways.
There is not an official line as to why we do not have class actions. It is just not something that is built into the court rules at present. FLAC advocated, in terms of the Legal Services Regulation Bill 2011, that there was potential to include this as a mechanism.
It is something that works in different ways around the world, be it as an opt-in or opt-out option. There has been little movement on it and little appetite for it.
It would not involve much change to introduce and implement. It would merely involve a change to the legislation. It is not something that we have had much luck with people wanting to see a change in because people believe that it will open the floodgates in some way. We say it would not open the floodgates in any way. It would merely allow people who have rights who cannot exercise them to be given a position.
Ms Rachel Power:
A class action allows a number of persons to join in a particular piece of litigation where they all have a joint interest and the outcome or decision in that case will impact equally on those who are joined or perhaps, occasionally, a class of persons who are not joined to the litigation who are automatically impacted by the decision.
It has not come across our desk to any significant extent that I can recall. Maybe it is in one of the submissions and we missed it.
I am taken with the NGOs and philanthropy and the fact that a number of philanthropic organisations are going out of business shortly and there will be a shortage. The committee produced 35 reports in the past four or five years and a lot of NGOs came in here. It was costly for quite a number of them to come to the Oireachtas to make presentations to us. I am aware that a lot of them are under pressure to do so but we are grateful for the fact that they did because we made lots of changes to law, we had very good debates and it fed into the system, in particular, in the pre-legislative scrutiny. The area of philanthropy in Ireland is one we need to look at as well and try to beef up a little.
Unless colleagues have further requests or final comments, I thank the witnesses for being here today and for bringing this to our attention. I wish them the best of success with it in the future as it roles on.