Public Interest Law in Ireland – the reality and the potential Conference Proceedings Public Interest Law in Ireland – the reality and the potential Conference Proceedings ISBN: 1-873532-121 © FLAC, February 2006 Copyright declaration You are free to copy, distribute or display this publication under the following conditions: • You must attribute the work to FLAC • You may not use this report for commercial purposes • You may not alter, transform or build upon this report For any reuse or distribution, you must make clear to others the licence terms of this publication. Any of these conditions can be waived if you get permission from FLAC. FLAC (Free Legal Advice Centres Ltd.) 13, Lower Dorset Street, Dublin 1 Tel: +353-1-874 5690 Fax: +353-1-874 5320 E-mail: [email protected] Website: www.flac.ie Designed and printed by Printwell Co-operative, 10-11 North Richmond Street, Dublin 1 Table of Contents Introduction 5 Proceedings of Public Interest Law Conference HOW PUBLIC INTEREST LAW CAN BENEFIT MARGINALISED AND VULNERABLE GROUPS IN IRELAND Opening addresses Noeline Blackwell 8 The Hon Mrs Justice Catherine McGuinness 9 Dr Maurice Manning 9 How public interest law and litigation can make a difference to marginalised and vulnerable groups in Ireland Mel Cousins 11 Using Law to Change the World Julian Burnside QC 25 Morning Questions & Answers Session 34 Session 2: PUBLIC INTEREST LAW AND LITIGATION IN OTHER JURISDICTIONS 3 The UK Experience of Test Cases and the Human Rights Act 1998 Roger Smith 35 Goliath Arisen: Taking Aim at the Health Care Regime in Auton Ellie Venhola 43 Race, Poverty, Justice, and Katrina: Reflections on Public Interest Law and Litigation in the United States Robert Garcia 65 The Suit Against Secretary of Defense Donald Rumsfeld on behalf of Former Detainees in Iraq and Afghanistan Fiona Doherty 79 Public Interest Law: The South African Experience Geoff Budlender 85 Session 3: SETTING THE CONTEXT FOR PUBLIC INTEREST LAW AND LITIGATION IN IRELAND Setting the Context for Public Interest Law and Litigation in Ireland: The Draft Bill of Rights in Northern Ireland Prof Monica McWilliams 91 The Ombudsman and Information Commissioner – Righting Wrongs and Protecting the Public’s Right to Know Emily O’Reilly, Ombudsman 95 Using Law and Litigation in the Public Interest 99 Michael Farrell Strategies for Promoting Social Inclusion through Public Interest Law Prof Gerry Whyte 103 Questions & Answers session 105 PLENARY SESSION PRESENTATIONS: Response from the Law Society of Ireland Owen Binchy 113 Response from the Bar Council of Ireland Hugh Mohan SC 115 4 Summary of Conference Key Points Prof Gerard Quinn 117 Profiles of contributors 123 List of conference participants 129 Introduction These conference proceedings, entitled Public Interest Law – the Reality and the Potential, represent the culmination of a research project into public interest law and litigation in Ireland and record a conference on public interest law which was held in the Royal Hospital Kilmainham on 6 October 2005. As the large attendance at the conference and as subsequent inquiries to the FLAC office showed, there is a great deal of interest in the development of public interest law and litigation (PILL) in Ireland. FLAC will be facilitating a number of events over the next few months to continue the discussion on how to deliver public interest law and litigation. We will organise a seminar for NGOs and interested lawyers on how PILL can address issues faced by disadvantaged and vulnerable groups. A seminar will follow on the procedural obstacles to PILL and the development of a strategy to remove them. There will also be a seminar on structures in place in other jurisdictions to facilitate public interest litigation and a discussion as to their suitability in the Irish context. Finally, in mid 2006, FLAC will host a major roundtable discussion on the possible shape and delivery of a PILL strategy. Meanwhile, a consultant will be engaged to make concrete proposals on how PILL should be developed and supported in Ireland. FLAC will also establish a network of interested parties, 5 individuals, NGOs, academics, the legal profession and others to discuss these issues. The network will involve experts from other jurisdictions as well. FLAC hopes that this publication will contribute to the debate on the development of public interest law in Ireland and to a meaningful discussion on how we can make the law more accessible to disadvantaged people and use it to protect and extend their rights. The publication of the conference proceedings has been funded by The Atlantic Philanthropies. FLAC February 2006 6 PR O C E E D I N G S OF PU B L I C INTEREST L A W 7 C O N F E R E N C E Opening Address Noeline Blackwell, FLAC Director General We are delighted and greatly heartened by the number of people who have registered their interest in this topic of public interest law in Ireland. Not only do we have a large number here but we also have a great mix of people. We have people from the state and semi-state sector, we have lawyers, practising lawyers at the Bar and solicitors and we have academic lawyers. We have students and we have people who are working with those who are marginalised because of lack of access to justice and those who are particularly vulnerable. We have people from civil society generally. We welcome you all here today. What we will be looking at is how law is currently used in the public interest in Ireland, how litigation is currently being used and its potential for use in the future. FLAC in particular welcomes today its supporters and volunteers. At some stage during the day we are also going to have the pleasure of welcoming David Byrne, a noted lawyer, former EU Commissioner, former Attorney General and founder member of FLAC. It is just extraordinary that we have people working with FLAC – him and others – over the entire time of its existence, over thirty-five years, who are still interested in new developments in which FLAC is interested. FLAC is – for those who do not know us - an independent human rights organisation. Our main aim and ambition is to achieve equal access to justice for all. Since its foundation, FLAC has campaigned for a legal aid system to give access to justice to those who can not get it for lack of resources. Over the years FLAC has also sought to represent or resource those who otherwise would not have been able to go to court to vindicate their rights. With the assistance of our dedicated and able volunteers, we work 8 in our own office and with Citizens Information Centres around the country to provide legal advice for individual legal problems. Those initiatives have been aimed at increasing the access of individuals to justice. In addition FLAC has promoted and encouraged the delivery of law through community law centres in recognition of the fact that services designed by the community, with the community’s interest at heart, are those most likely to deliver effective access to justice, something which is particularly true for marginalised communities. This current project, where we examine how law and litigation are used in the public interest, and how they could be used, is geared at examining another aspect of equal access to justice for all. With funding from The Atlantic Philanthropies we were able to commission Mel Cousins to do an assessment of public interest law and litigation in Ireland. Mel will present his main conclusions here today. There is already substantial law and litigation practised in this state in the public interest. We hope that today will be instructive for those engaged in that work, of whom several are here today, along with those who wonder what relevance the law has for them in their work with people who have trouble accessing justice. We hope that this conference will be useful in developing a common understanding of what public interest law and litigation means and exploring its uses and potential. We think that the contributions that you will hear today from those who work with public interest law and elsewhere will be particularly enriching. Though working in very different fields, the group of speakers we have gathered from abroad work in systems that are based, like our own, on the common law system, which is more useful for us than other systems such as those in mainland Europe. We are grateful to Judge McGuinness who has agreed to chair this conference here today. As an advocate and a judge she is held in the highest esteem. Her biography is in the notes. I think she is the only judge that I have come across who has sat as a judge in the Circuit Court, the High Court and the Supreme Court, so she has an unrivalled wealth of experience across the courts in Ireland and also has wide experience from her previous practice as a barrister. As well as that she has an extremely wide variety of interest and understanding in how to use law in the public interest. I am delighted at this point to hand the conference over to her. Thank you very much indeed. Opening Address The Honourable Mrs Justice Catherine McGuinness President of the Law Reform Commission Conference Chairperson I would like to echo Noeline’s welcome to party litigation, we see as a way of offering access e v e r yone here this morning. It is re a l l y to justice, very often in cases that may represent encouraging to see what a large public interest the public interest, or groups that otherw i s e there is in public interest law in Ireland and in this would not have access to justice.