ISSN 0791 4148 l V OLUME 19 l NUMBER 1 l JANUARY – MARCH 2009 flacNews FREE LEGAL ADVICE CENTRES

40 Years of FLAC Celebrating four decades of the Free Legal Advice Centres in Ireland s r i e p

FLAC is an independent We take cases to challenge the law S

k e human rights organisation and so promote access to justice r e D

dedicated to the realisation on behalf of marginalised or disad- ©

of equal access to justice vantaged groups. Some cases have o t o for all. It campaigns led to important law reform and h through advocacy, strategic enhanced rights for such groups. P litigation and authoritative analysis for the eradication Underpinning our campaigning of social and economic and casework is a strong tradition exclusion. of research and policy work.FLAC generates submissions on legal We provide necessary legal servic- and social policy developments es to the public, including an infor- and proposes reforms to the law. mation and referral line, and we The organisation produces sub- support a network of 70 free legal stantive reports on our key areas advice centres throughout Ireland. of work as well as smaller publica- tions designed to explain and The helpline, available at 1890 make relevant legal issues for a 350 250, is open during office wider audience. hours Monday to Friday and while it does not provide legal advice, it offers 7500 people at its centres, which are Our newsletter, FLAC News, is now in basic information on the law and refer- operated in conjunction with Citizens its 19th year and appears quarterly.To rals to an appropriate service or cen- Information Centres. FLAC’s website mark the organisation’s 40th anniver- tre. Our centres are open in the offers a wealth of useful information sary, FLAC News will include a special evenings and are staffed by volunteer and is available at www.flac.ie insert documenting the four decades lawyers who advise people on their of the organisation's existence in pho- legal queries. We do not offer repre- FLAC campaigns on a range of issues tographs and press clippings. This will sentation. connected with our core areas of appear in each issue throughout 2009. work: civil legal aid, social welfare law In 2008 FLAC answered some 9500 and credit & debt law. In addition we This first issue of 2009 covers the queries on its helpline and provided seek to advance the use of law in the 1970s. We hope you will enjoy this non-means tested legal advice to about public interest. series; we welcome any feedback.

FLAC News is available free on subscription, in print or PDF format. For this 40th anniversary year, it is being sent to all Irish legal practitioners. If you want to receive an electronic version rather than a printed one, or no longer wish to receive FLAC News, please e-mail us at [email protected] flac News | Vol. 19, No. 1

in this edition...

Courts Service gets it wrong on Courts Service gets it jurors 2 FLAC @ 40 2 wrong on jurors he Courts Service has been The Jury Summons and leaflet are accom- Comment: Much more action sending out Jury Summonses that panied by a photocopied sheet which says required on over-indebtedness 3 wrongly tell people over 70 that – not in bold type: “[T]here is now no Checklist of actions for surviving Tthey are disqualified from serving on a upper limit to the age at which someone the recession 4-5 jury. can serve on jury”. It does not say that State mortgage assistance the information on the Jury Summons and scheme under review 5 Since 1 January this year, the upper age leaflet is incorrect. limit of 70 for serving on a jury has been Government fails to submit Social abolished but the Courts Service is still ‘Confusing’ would be the politest way to Rights report 6 sending out old Jury Summons forms that describe the effect this must be having on Manager appointed for new public include the previous age limit, together people over 70 who are now legally enti- interest law project 6 with an explanatory leaflet that repeats tled to serve on juries but are told three the ban on people over 70. times on the official forms that they are New Charities Act does not still disqualified. recognise human rights 7 Under the heading “IMPORTANT Expanding advice centres on NOTICE” in bold type, the Jury Summons And just to complete this sorry mess, the immigration law 7 form asks the question: “What Age Must Jury Summons also has a list of people FLAC’s 2008 statistics show major You Be To Serve On A Jury?” and answers: ineligible to serve which, under the sub- rise in legal aid needs 8-9 “You must be between 18 and 70 years of heading “Incapable Persons”, includes: “A age. If you are over 70 years of age you person who because of insufficient capac- 40th anniversary insert: are disqualified from serving on a jury...” ity to read, deafness or other permanent No.1: FLAC in the 1970s i-iv infirmity is unfit to serve on a jury”. The elephant in the room: A page later, under the heading “QUALI- Personal over-indebtedness FICATION FOR JURY SERVICE”, the Another amendment last year removed & public policy 10-11 form says “You are qualified and liable for the offensive reference to deaf persons as jury service if ... you are not less than 18 unfit to serve, replacing it with more sen- Focus on FLAC: Peter Ward BL 12 nor more than 70 years of age”. And on sitive language, although it still did not give FLAC @ MACRO, Dublin 7 13 Form J2,“Reply to Jury Summons”, it help- them the right to sit on juries. FLAC fully tells the prospective juror that it is an client Joan Clarke, who has challenged the Casework round-up: Social welfare offence under the Juries Act,1976, punish- ban on deaf persons in a High Court appeals;Accessibility case against ? Iarnrod Eireann 14 able by a fine of 253.95, to serve on a action, is still awaiting a decision on her jury knowing that s/he is disqualified. case. Perhaps if she succeeds, the Courts Challenge to ban on deaf jurors 15 Service will produce a new form of Jury Kenyan legal aid activists murdered 16 An accompanying printed leaflet also says Summons which tells those aged over 70 in bold type: “Note: The qualifica- and deaf persons that they are welcome Pakistan: Rule of law restored 16 tion age for jury service is to serve on juries. between 18 and 70 years of age”. FLAC News is published quarterly 8See also page 15 for further news. by Free Legal Advice Centres Ltd., 13 Lower Dorset Street, Dublin 1. Editing & Layout: Yvonne Woods n 25 April FLAFCL willA celebrateC at its4 040th anniversary in the Contributors: Noeline Blackwell, Mansion House, where President Mary McAleese will address Saoirse Brady, Michael Farrell, assembled guests. The evening aims to thank FLAC volunteers Michael Green, Catherine Hickey, Oover four decades for their vital work and to acknowledge the contribu- Sarah Horgan, Paul Joyce, Gillian tion of FLAC’s founders. At this event. we hope to gather some 500 Kernan,Aisling McHugh, Fintan guests to include current volunteers, FLAC’s founders and supporters Monaghan, Edel Quinn, Peter Ward, who are central to FLAC’s development. Yvonne Woods We will organise other events throughout the year providing opportuni- ISSN 07914148 ties to thank volunteers and promote FLAC’s work. The current eco- nomic situation has placed increased demands on FLAC’s services and Photos: FLAC, Eamonn O’Dwyer, campaigns. FLAC relies on the help of volunteers solicitors and barris- Derek Speirs ters to operate its centres and plans to expand volunteering opportuni- The views of individual contributors ties to meet increased demand for its services. For further information do not necessarily represent the on events, contact Catherine Hickey at [email protected] views of FLAC.

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Comment: Over–indebtedness — much more urgent action required ccording to figures released home. The situation was exacerbated the lender, where the house sells for by the Financial Regulator in by the lack of any consultation with less than the borrowed amount, in December 2008, almost groups representing consumer inter- addition to costs and penalties. Given A14,000 residential mortgages were in ests before the code was adopted.As a that properties are not selling at pres- arrears of at least three months as of result, the code that came into effect ent, how the amount payable to the June 2008. Nine months later, with the on 27 February provides even less pro- lender will be calculated is critical, but steep rise in the rate of unemploy- tection than the draft version first the code does not set any parameters ment and evidence of small business viewed by FLAC in January. for this. failure across the country, unfortu- nately this figure is now likely to be Where the draft code would have Equally,for all the talk of reckless lend- appreciably worse. prevented a mortgage lender from ing in recent months, there has been issuing a formal demand and legal pro- no proposal on a legislative initiative In turn, figures issued by the Courts ceedings against a borrower unless to examine and potentially reschedule Service at the end of February 2009 there were “six months cumulative grossly irresponsible housing loans. show that the number of High Court arrears,” the code as adopted allows a The borrower continues to endure applications to repossess properties formal demand to be made if a third the pain unaided. It has also recently and the number of orders granted repayment is missed and permits legal come to our attention that in one par- both more than doubled in 2008 over proceedings to be brought after “six ticular area of the country, a local 2007. Within 2008, the number of months from the time arrears first authority has started to issue eviction applications and orders rose apprecia- arise.” There are many borrowers proceedings against tenants with size- bly in the final quarter, a trend that already well beyond this point. able rent arrears, a practice that speaks for itself.The number of unem- would appear to serve no purpose ployed people in receipt of mortgage Furthermore, whilst the code does whatsoever in the current climate and interest supplement (MIS), a payment apply to all lenders, including sub- which we hope will not be replicated intended to prevent the occurrence of prime, and does oblige lenders to in other local authority areas. mortgage arrears, appears to have explore alternative repayment meas- increased though not substantially. Yet ures with borrowers in arrears, its lan- Meanwhile, the Money Advice and the Department of Social and Family guage is vague and enforcement will Budgeting Service (MABS) struggles Affairs is unable to provide a figure for be subject to the Regulator’s with referrals of large numbers of the number of new applications for ‘Administrative Sanctions’ pro- over-indebted people to its services. the payment, as it only keeps records gramme, a convoluted process unlike- In its framework for economic renew- on successful applications.Anecdotally, ly to strike fear into a mortgage al in December 2008, the Government however, it is clear that many appli- lender tempted not to comply. It is committed itself to sustaining MABS cants are being refused this badly also instructive that as yet little or no funding for 2009 at ?18 million.This is needed payment. information has been published on the simply not enough. Already in 2009, code for the benefit of consumers and MABS has seen an increase of 30% in As economic circumstances further this has led to some misconceptions the demand for its services and cen- deteriorate and the pressure mounts about its effect. tres have begun to develop waiting on families to keep their heads above lists, an unacceptable trend when water financially, the question must be The code largely ignores the impor- often deeply distressed people have asked: what is the State doing to pro- tant question of how negative equity faced their financial difficulties and tect vulnerable people whilst the cases should be treated. For many sought help. recapitalisation of the banks with tax- borrowers who took out expensive payer’s money proceeds apace? 100% mortgages in recent years, who Instead of piecemeal reactions by a now find themselves in arrears and variety of departments and agencies, If the Regulator’s recently adopted whose property may now be in a neg- FLAC believes that a joined-up Code of Conduct on Mortgage Arrears ative equity situation (i.e. worth sub- approach to resolving increasing prob- (see FLAC News, October-December stantially less than what they bor- lems of over-indebtedness is needed – 2008) is anything to go by, Government rowed), this is now a very pressing urgently. has failed to understand the extent of question. Some may be tempted to this problem for many hard-pressed hand back the keys and move on. Saving people is more borrowers trying to protect their However, money may still be owed to important than saving banks.

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Checklist of actions for surviving the

LAC has compiled a list of tips Supplement. If you are turned J Contact your creditors – for people who have lost their down for these or any other Where you can see that your jobs – it is not exhaustive and social welfare payment, you may expenses exceed your income, it Fshould be taken as a suggestion for appeal the decision first to the is a good idea for you (or MABS) actions rather than the final word on HSE Appeals Office and then if to contact as early as possible what people can do. unsuccessful to the Social those from whom you have bor- Welfare Appeals Office.The local rowed to try to renegotiate pay- A list of other agencies which might be Citizens Information Centre/ ments. of assistance is at the end. Service should also be able to help you with this. The Code of Conduct on J Claim all your entitle- Mortgage Arrears obliges all ments - If you have just been J Check whether you have pay- mortgage lenders (including sub- made redundant, make sure that ment protection insur- prime mortgage lenders) to look you have received all your enti- ance – Life Insurance cover is at alternative ways of repayment tlements under employment leg- compulsory for almost all mort- that will assist borrowers to meet islation. Depending on the cir- gages. However, you may have their obligations. A similar cumstances, this could include gone further and bought redun- approach should be taken by arrears of wages, holiday and dancy cover, not just for your other types of creditors (the peo- public holiday pay, pay in lieu of mortgage but maybe also for a ple to whom you owe money) notice and a redundancy lump personal loan. If you have, now is including local authorities to sum. If your employer has gone the time to claim. If your insurer whom there may be arrears of out of business, you may be able refuses your claim, you can use rent. to claim these monies from the their complaints procedure to Social Insurance Fund under the try to have the decision changed. J Legal advice and repre- Insolvency Payments scheme. A If it is still refused, you can make sentation – One or other of Citizens Information Service a complaint to the Ombudsman your creditors may decide to should be able to help you with for Financial Services about the take legal action against you, even this. refusal to make the payment. though you have tried your best to pay what you can currently J Sign on immediately – Yo u J Do up your own budget – afford. In this situation, as well as may have difficulty getting tax Add up your expenses on the consulting MABS, you should documentation like a P45 but one hand and your income on seek legal advice immediately. you don’t have to wait to sign on the other in as much detail as for Jobseeker’s Benefit/ possible, taking everything into If you are on a low income, you Assistance. When your claim is account, including household can apply to the state civil legal sorted out, you should be paid expenses, all loans, utility bills, service, the Legal Aid Board, for from the date of a valid claim.You motor tax, and house and car legal advice, legal representation may also be entitled to insurance. Look to see if there is or both at the nearest Law Supplementary Welfare anything you can cut back on to Centre to you. You will have to Allowance from the Community save money. take a financial means test to Welfare Officer at your local qualify for legal aid and you will Health Services Executive (HSE) J Contact the Money have to pay a contribution for Health Centre while you wait for Advice and Budgeting the service. You can also go to your social welfare claim to be Service (MABS) – To assist with one of the legal advice centres processed. putting together your financial run by FLAC to get basic legal details and negotiating with your advice. J Claim Rent or Mortgage creditors, you may wish to make Interest Supplement (MIS) an appointment with a MABS J Mortgage arrears – the – You can try to prevent your money advisor locally. Bear in Code on Conduct on Mortgage mortgage getting into arrears by mind it is a service under pres- Arrears obliges all mortgage claiming MIS from the sure and you may have to wait lenders to wait at least six Community Welfare Officer at for an appointment. MABS also months from the time arrears your local HSE Health Centre. If has a national helpline at begin on a mortgage before they you are in private rented accom- 1890-283438. bring any legal action against you. modation, you can apply for Rent Bank of Ireland and AIB must

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recession State mortgage assistance

wait for a year. If this rule is ollowingsc FLAC’she mjoint esubmission undinterester payments.review ignored, you should complain to with Northside Community Law the Financial Regulator – see Centre on the Social Welfare It is essential that these government http://www.ifsra.ie for more (FMiscellaneous Provisions) Bill 2008, departments take a more creative and detail on the Code and how to FLAC has learned that the Department collaborative approach to keeping fami- complain. of Social and Family Affairs is currently lies in their homes at a time when they conducting a review of the application of are now at risk of becoming homeless J (Re)training – As well as con- the scheme. through no fault of their own. The State tinuing to apply for any jobs that is ultimately responsible for accommo- may be out there, you might also Mortgage Interest Supplement (MIS) is a dating people, whether through the pro- payment made as part of the overall vision of local authority housing or investigate what training cours- Supplementary Welfare Allowance through rent supplement, so a more co- es you could enrol in that might scheme in order to help people who are ordinated response could prove more help to update your skills or finding it difficult to make their mortgage cost-effective in the long run. provide you with new ones. interest payments. In order to qualify for the supplement, the claimant must be in In her reply to a recent parliamentary You might also wish to check receipt of a social welfare or HSE pay- question from Fine Gael Deputy Olwyn out what courses in further ment. The scheme is administered by Enright, Minister Mary Hanafin indicated education might be available Community Welfare Officers (CWOs) of that there are over 8500 people current- through your local Vocational the Health Service Executive. ly in receipt of MIS. However, she also Education Committee (VEC) – revealed that the DSFA does not keep sta- see for example The scheme’s main aim is to keep people tistics on the number of applications http://www.cdvec.ie if you are in their home, which should underlie any received for the supplement. Instead, it living in the Dublin area. proposed changes to the scheme. The only records cases where the payment is payment is particularly relevant in the cur- granted, so there is no way of accurately rent environment of job losses. One of knowing how many people are actually in Useful web resources: the main criticisms of the way the scheme need of this measure. is currently operated is a lack of consis- Useful information can be tency in decision-making,g as each CWO The DSFA estimates that an average 20 obtained from the following has his/her own interpretation of what to 25 per cent of cases are refused but websites constitutes a “reasonable” mortgage. anecdotal evidence suggests that this fig- ure could be much higher. The current State organisations: As reported in the last issue of FLAC News, budget for the supplement currently the 2008 Act contains more restrictive stands at ?30 million for the year but the provisions regarding the application of the Irish Examiner (2 March 2009) reported 8 www.citizensinformation.ie scheme. However, the DSFA is currently the Department may face a deficit of ?13 8 www.welfare.ie drawing up guidelines for CWOs on the million in relation to this scheme. 8 www.hse.ie new application of the supplement. It is hoped that this will help eliminate current The Minister also emphasised that there is 8 www.fas.ie discrepancies between different decision- an onus on financial institutions to show 8 www.cdvec.ie makers. willingness to reschedule payments in sit- 8 www.mabs.ie uations where a person finds him/herself 8 www.legalaidboard.ie To address current problems with mort- in financial difficulty. While the govern- gage arrears and repossessions, relevant ment has recently introduced a code of 8 www.ifsra.ie government departments must meet to conduct for mortgage lenders, this meas- 8 www.financialombuds discuss the potential housing crisis. Any ure is not an adequate response in dealing man.ie such consultations should include the with the growing issue of mortgage Health Services Executive and the arrears and repossessions. Non-governmental organi- Departments of Social & Family Affairs; sations: Environment, Heritage & Local FLAC hopes the government will use the Government; Finance; Justice, Equality & review of the MIS scheme as an opportu- Law Reform; and Enterprise, Trade and nity to collate up-to-date statistics show- 8 www.flac.ie Employment. As the current wave of ing the actual need for MIS while at the 8 www.redundancy.ie redundancies continues, newly unem- same time exploring other ways of help- 8 www.mrci.ie ployed people who purchased their fami- ing people who are coping with this 8 www.ictu.ie ly home at the height of the boom are increasingly worrying situation. It is 8 www.inou.ie now in danger of losing it since they sim- essential that people who need this sup- ply cannot afford to keep up mortgage plement are helped to keep their homes.

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Government fails to submit

he Irish government has failedS toocpersonsial withR idisabilitiesghts to rindepend-eporThet next Report from Ireland is due to submit a report on how it pro- ence, social integration and participation address Articles relating to “Health, social tects economic and social rights in the life of the community (Article 15); security and social protection”. Tto the European Committee on Social the right to engage in a gainful occupa- Rights which monitors how states are tion in the territory of other States The European Social Charter is the implementing the European Social Parties (Article 18); the right of men and social and economic companion to the Charter. The Committee is set up under women to equal opportunities (Article European Convention on Human Rights. the Strasbourg-based Council of Europe. 20); the right to protection in cases of It shows little respect for the concept of termination of employment (Article 24); a Europe based on respect for human Under the Social Charter, the govern- and the right of workers to the protec- rights if the Government ignores its ment is obliged to submit periodic tion of claims in the event of insolvency responsibilities under the Charter. reports for assessment by the of the employer (Article 25). Committee of Social Rights, but it failed But then maybe this is just consistent to deliver its most recent report which In the absence of an updated report, a with its attitude to human rights moni- was due on 31 October 2008. somewhat annoyed Committee had to toring bodies closer to home, like the base its conclusions on the Government’s Equality Authority and the Human Rights The latest Report should have dealt with performance during its previous examina- Commission. the articles of the Charter relating to tion of these articles in 2006 and 2007. It “Employment, training and equal oppor- found that Ireland is not in conformity Read the full text online at tunities”. These include the right to with parts of Articles 1, 9, 10 & 18. In rela- http://www.coe.int/t/dghl/mo work (Article 1); the right to vocational tion to a number of other provisions the nitoring/socialcharter/Conclus guidance (Article 9); the right to voca- Committee said it would need more infor- ions/ConclusionsIndex_en.asp tional training (Article 10); the right of mation in order to arrive at a conclusion.

Manager appointed for new public

ony O'Riordan has ibeennteparrties.eIndividualsst la wand organisationsproject appointed Manager of the are invited to become members of the Public Interest Law Alliance Alliance which is intended to be a (PILA).T Welcoming his appointment, dynamic community which will quickly FLAC Director General Noeline become aware of the potential for Blackwell said “this exciting new proj- common work, agendas and resources. ect builds on the work FLAC and oth- ers have undertaken in recent years to Tony is well placed to head up this ini- bring together all strands of Public tiative. He is a graduate of NUI Galway, Interest Law in Ireland already under- Milltown Institute, University of way and so foster a more vibrant cul- London and University of Oxford and ture and practice of working with the holds degrees in Law and Politics, law to benefit marginalised and disad- Philosophy and Theology. From his stu- vantaged people.” dent days he has been active in various areas to promote social justice. In 1994 A key objective of the Alliance is to he was appointed Co-ordinator of the develop a more coordinated infrastruc- WEB Project, a scheme based in Dublin ture for Public Interest Law in Ireland. 15 to divert 10 to 16 year-olds at risk Community in Ballymun: he currently This will be done across four strands, of being in trouble with the law. For chairs the Ballymun Neighbourhood law reform, legal education, community over ten years he has been a regular Council and is a Board Member of legal education and public interest liti- visitor to many of the country's prisons Ballymun Regeneration. Prior to his gation. PILA will facilitate exchange of and was one of the founders of the appointment to PILA he was Director information and will be a vehicle for Blanchardstown-based BOND Project of the Jesuit Centre for Faith and idea and initiatives and will have a range in 1998. Justice where he led a number of signif- of stakeholders, including lawyers, icant contributions to policy debate in statutory bodies, law firms, law centres, In 1994 Tony joined the Jesuits and has the areas of health, housing and penal NGOs, educators and other interested lived for many years in the Jesuit reform.

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New Charities Act does not Expanding recognise Human Rights advice centres he Charities Act 2009 was signed Attorney General in determining what into law on 28 February 2009 constituted a charitable purpose within on immigration and while regulation in the area the legislation. Twas long-anticipated and welcome, FLAC law is very disappointed that the “advance- A number of Senators including David In January 2009 FLAC decided to ment of human rights” was deliberately Norris (Independent), Ivana Bacik expand its specialist immigra- removed from the legislation as a recog- (Independent), Alex White (Labour), Joe tion services. The staff of the nised, valid purpose for organisations O’Toole (Ind) and Jerry Buttimer (Fine Immigrant Council of Ireland seeking charitable status. Gael) tabled amendments to the Bill call- kindly offered to train our volun- ing for the inclusion of human rights as a teers on Saturday mornings over The Charities Bill 2007 was debated charitable purpose. However, the amend- a three-week period. The first before the Seanad on 26 November 2008 ments calling for the inclusion of human training took place on 21 and Committee stage took place on 4 rights were ultimately defeated and the February; it covered the basic December 2008, during which much Bill passed through the Seanad without aspects of immigration law in attention was given to the exclusion of this glaring omission being rectified. Ireland, providing an introduc- “human rights” as a purpose beneficial to tion to the subject. Two more the community. A joint position paper The Charities Bill then returned to the sessions are to follow covering from FLAC, Amnesty International Dáil for approval before its enactment. the more detailed aspects of Ireland, the Irish Council for Civil While it was not included in the agenda, immigration law and the issues Liberties and Front Line was circulated to members of all opposition parties used surrounding its implementation all Senators. this opportunity to raise the issue of on the migrant population of human rights by asking Deputy Curran Ireland. This paper subsequently had frequent to explain the government’s motivation FLAC hopes to set up two fur- mention throughout the Seanad debate. in removing this from the Bill. Deputies ther specialist immigration law It referred to the corresponding legisla- Jack Wall, Michael D Higgins and Joe centres in Dublin. These will run tion in neighbouring jurisdictions, includ- Costello (Labour) all spoke in favour of alongside the existing clinic in ing Northern Ireland, which all include including human rights in the current bill Macro Community Resource human rights as a charitable purpose. as did Deputy Michael Ring (Fine Gael) Centre on North King Street The paper also highlighted possible and Deputy Aengus O’Snodaigh (Sinn every Thursday evening from issues with the exclusion from the legis- Féin). The Minister reiterated the gov- 7pm. One centre will be located lation surrounding funding and the prin- ernment’s position and insisted that the on the south side and the other ciple of equivalence contained in the legislation would be revisited in five will operate out of Good Friday agreement. years time. The Bill was later approved Blanchardstown CIC alongside by the Dáil. our general service there on The Law Society of Ireland also submitted Monday evenings. One of our a memorandum to all Senators in advance In the absence of legal advice to the con- immigration experts has agreed of Committee stage held on 4 December trary, FLAC cannot understand the to begin the Blanchardstown 2008, outlining concerns that existing exclusion of the advancement of human service on 27 April, initially on a charitable organisations advancing human rights from the Charities Act 2009. monthly basis. rights may be vulnerable to exclusion While the Minister has insisted that from the register at some future point organisations carrying out human rights since their raison d’etre would not be work are covered under other provi- Transgender expressly included in the legislation. sions of the legislation, it is not certain that they will be protected from mali- conference Minister for State John Curran defended cious complaint or removal from the he Transgender Equality the omission of human rights from the register in the future. FLAC calls on all Network Ireland, Union of legislation, stating that existing organisa- elected representatives to monitor the Students in Ireland and tions with charitable status which use a situation and ensure that the inclusion of TBeLonG ToYouth Service are hosting a human rights-based approach would not human rights in this important piece of Transgender human rights conference be adversely affected by the introduction legislation is incorporated into any and educational seminar entitled of the new legislation. He justified the future programme of government. Transforming Attitudes on 17 & 18 April exclusion by stating that the legislation 2009 which will feature FLAC Senior only sought to “maintain the status quo” See the position paper at Solicitor Michael Farrell and a video in this area and such a provision for address by Thomas Hammarberg, the human rights was unnecessary. It later www.flac.ie/download/pdf/2 Council of Europe’s Commissioner for emerged during the Seanad debate that 008_12_08_pos_paper_on_ch Human Rights. More details at the government received advice from the arities_bill_final.pdf http://www.teni.ie/Conference Revenue Commissioners rather than the

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FLAC: 2008 statistics show LAC is keenly aware of the need head office in 2008.This was a substantial One in ten clients said that they had to understand the legal needs of increase on the 4,815 data collection already engaged a solicitor in relation to its callers in order to campaign forms returned in 2007. Table 2 shows their query.The majority of these queries Fefficiently on issues important to them the type of legal queries that callers that had already been discussed with a and to provide a basic free legal advice brought to FLAC’s network of centres private solicitor were family law issues. service to the public. Our data collection over the period from 2004 to 2008. programme entered its fifth year in 2008 20% of callers to FLAC centres during and the information collated from our The quantity of family law queries pre- 2008 were referred on to the Legal Aid telephone information line and network sented to legal advisors has increased Board for further advice or representa- of centres has been of great assistance to over the period from 2004 to 2008, yet tion. Of these, 70% were family law FLAC’s development and ongoing as a percentage of total queries, this has issues.The next largest area referred on research. fallen slightly from 37% of all queries in to the Legal Aid Board was employment 2005 to 31.5% of all queries in 2008. law issues, which accounted for only 6% Telephone Lines of cases referred on to the LAB. In 2008, FLAC head office received 9244 There has also been an increase in the telephone enquiries to its information level of employment law queries brought 28% of the callers to FLAC centres dur- service.This is up 53% from 6034 calls in to the legal advice centres. In 2008 ing 2008 were advised to consult a pri- 2007 and 4303 calls in 2004, showing a employment law queries accounted for vate solicitor, 230 of these were being sharply growing need for legal informa- 14% of all legal queries, and were the sec- referred back to their own solicitor. Of tion and an increasing awareness of ond largest area of law discussed at the the clients referred on to a private solic- FLAC’s service. centres.The centres also saw an increase itor, only 27% of these cases were family in the number of credit and debt related law issues. Examining the 535 clients who Family law was again the largest area of queries. were referred to a private solicitor with enquiry, with one-in-five calls to the information line.The number of employ- Table 1 Information and Referral Line 2006-2008 ment law queries also rose to one-in-five calls during 2008.The next largest area of 2006 2007 2008 enquiry was legal services, followed by consumer law.The number of debt relat- Family 25.1% 22.8% 20.7% ed calls increased steadily over the year, Children’s Rights - 0.1% 0.2% with figures for October to December Civil 5.3% 5.0% 4.6% double those for January to March. During 2008 the phone lines were Company - 0.8% 0.5% busiest during the period from July to Consumer 5.7% 7.3% 14.4% September. Debt 1.5% 1.7% The number of calls made to FLAC’s Contract 0.8% 2.5% 1.7% information and referral line has doubled Discrimination/Equality - 0.2% 0.1% since 2005.Table 1 compares the break- Employment 6.7% 14.1% 20.1% down in calls between 2006 and 2008. Civil Non- The most noticeable increase is the rise Housing 1.6% 0.9% 0.7% Law Family in employment law queries, which rose Immigration 2.0% 1.8% 1.8% from 6.7% of calls to the information line Landlord & Tenant 2.5% 2.1% 2.5% in 2006 to 20.1% in 2008, accounting for Legal Aid 1.8% 4.5% 3.5% one in every five calls during 2008. Family law queries fell from one quarter of all Legal Services 12.4% 18.1% 10.7% calls in 2006 to just one fifth of all calls in Personal Injuries 1.3% 2.2% 2.5% 2008, showing an increase in demand for Tort - 1.3% legal assistance in non-family law matters. The period from 2006 to 2008 also saw Probate 6.9% 5.4% 5.9% a fall in the actual number of calls relating Property 6.2% 3.7% 4.4% to both housing and property issues. Social Welfare 1.1% 0.9% 0.9% Solicitor/Client Issues 3.0% 4.0% 3.8% Centres By the end of 2008, 47 legal advice cen- Miscellaneous 2.7% - - tres were participating in the Data Criminal Law 5.0% 4.6% 5.7% Collection Programme, and 7,233 data collection forms were returned to FLAC Total legal queries 5,786 6,034 9,244

8 FLAC NEWS l JANUARY Ð MARCH 2009 F L A C N E W S l S P E C I A L 4 0 T H A N N I V E R S A R Y E D I T I O N l F L A C I N T H E 1 9 7 0 s 1970s: Building a movement for

civil legal aid in IreAll lphotosa n© Derekd Speirs except where indicated n April 1969, law students David Byrne, educated about their rights, echoing FLAC’s Denis McCullough,Vivian Lavan and Ian demands. However, the government Candy began a Free Legal Advice Centre remained slow to implement these recom- Iin Ozanam house in Mountjoy Square. mendations. FLAC’s immediate aim was to use law stu- dents to give free legal advice to those who Nine years and 22,421 cases later, FLAC could not afford it. The need was so great, continued to provide a free legal aid service however, that FLAC also began providing as the government continued to break its representation and opened centres in promises. However, in March 1978 FLAC Molesworth Street ISPCC Offices, in resolved to close its centres from April 1979 FLAC protest to save Coolock CLC from Ballymun and in Rialto. FLAC Cork opened if Government were not taking adequate closure, December 1979 its first centre in October 1969. steps to implement the Pringle report. FLAC followed through with this threat and It was through this work that they hoped to announced impending strike action. advance their ultimate objective: to per- suade the government to put in place a com- In May 1979, the Government succumbed prehensive plan providing civil legal aid to to pressure from FLAC and, having given those in need. FLAC’s work expanded rapid- assurances during the Airey case, committed ly. By 1972, 2437 cases had been handled. By itself to setting up a legal aid scheme by the 1974, some 8000 cases were taken by stu- end of the year. The landmark Airey judg- dents and a panel of lawyers in eight centres. ment came that October: The European Court of Human Rights found that Ireland FLAC EGM, Ormond Hotel,April 1979: Ultimately, FLAC’s threat to withdraw these had breached the European Convention on Walter Walsh, Gerry Durcan, Karen services forced the government to take Human Rights by failing to provide Josie Banks and Bill Shipsey action on civil legal aid. Responding to Airey with legal assistance. FLAC’s campaign, in 1974 the government r e

formed the Pringle Committee to address Following the state’s commitment, FLAC y w

the issue of civil legal aid in Ireland. voted at an EGM to stop representing clients D Õ O Meanwhile, FLAC achieved one of its early from 30 June 1980. However the organisation n o

ambitions in 1974 by opening the first com- pledged to establish centres providing legal m a E munity law centre in Ireland. Coolock advice based in community services organisa- © Community Law Centre was established to tions.These advice centres still operate today. o t o

provide an accessible full-time legal service h

There is little doubt that the social and P to individuals in Coolock and to promote legal landscape have benefited immeasur- knowledge and awareness of legal rights. At a demo to mark the 3rd anniversary ably from the work of the law students of the Pringle Report, FLAC Chair Bill who set up that first legal advice centre in Shipsey talks to Michael Keating TD In 1977, the Pringle Committee published its Mountjoy Square in 1969. report calling for the provision of state-fund- Padraig O’Morain,The History of the Free ed legal aid centres and for individuals to be Legal Advice Centres 1969-2003.

FLAC EGM, Ormond Hotel,April 1979

Protest outside Dail, March 1978 Irish Times, 12 December 1972

FLAC NEWS l JANUARY Ð MARCH 2009 i F L A C N E W S l S P E C I A L 4 0 T H A N N I V E R S A R Y E D I T I O N l F L A C I N T H E 1 9 7 0 s

FLAC protest outside Dail on 1st anniversary of Pringle report, December 1978

Above right: Evening Press,24 April 1979

Irish Times, 27 March 1979

Right: Irish Independent, 24 April 1979

During protest march on legal aid in Dec 1978, FLAC’s Mary Griffin (centre left) and Greg O’Neill (left) talk to TDs Eileen Desmond and Jim O’Keeffe

FLAC delivers a birthday cake to the Department of Justice Mr Justice Pringle Protestor on anniversary of marking the 2nd anniversary of the Pringle report, 14 Dec 1979 Pringle Report, Dec 1978 ii FLAC NEWS l JANUARY Ð MARCH 2009 F L A C N E W S l S P E C I A L 4 0 T H A N N I V E R S A R Y E D I T I O N l F L A C I N T H E 1 9 7 0 s

Above: Woman with child being welcomed into Coolock Community Law Centre by community solicitor Dave Ellis, Nov 1980

Left: FLAC protest to save Coolock CLC from closure, December 1979

Far right: Irish Times, 3 April 1975 Cover of FLAC’s Annual Report 1978

Right: Southside, 4 April 1979

At a news conference in 1972 calling for Irish Times, state funding for divorce and other law Irish Times, 8 March 1979 28 July 1971 reform, L-R: David Molony (Chair),Anne Colley (Secretary),Alan Shatter (Director)

FLAC NEWS l JANUARY Ð MARCH 2009 iii F L A C N E W S l S P E C I A L 4 0 T H A N N I V E R S A R Y E D I T I O N l F L A C I N T H E 1 9 7 0 s

Right: Irish Times, 26 March 1979

Josie Airey FLAC picket on Department of Justice in support of Melíosa Dooge at picket in support Josie Airey’s case, February 1979 of Josie Airey’s case, February 1979

Irish Times, 23 March 1979 Irish Times, 12 December 1974

Inge Clissmann speaking at FLAC EGM, FLAC picket address by Gerry Collins TD, Mary Robinson speaking at FLAC April 1979 Minister for Justice, at Jury’s Hotel, Jan 1979 protest, December 1979 iv FLAC NEWS l JANUARY Ð MARCH 2009 flac News | Vol. 19, No. 1

sharp rise in legal need a family law query,191 of these were also through the Data Collection Programme In relation to our campaign for a com- advised to contact the Legal Aid Board, was also 50% higher than in 2007. prehensive civil legal aid scheme there suggesting that the remaining 344 clients has been an increase in property queries were referred onto a private solicitor Family law continues to be the largest in FLAC centres which would suggest rather than the Legal Aid Board would area of enquiry on both the phone lines this is an issue which needs to be not satisfy the means test.The question and in the centres. However, family law addressed by the Legal Aid Board who remains as to whether these clients can queries fell from one-quarter of all calls should reconsider their position on dis- afford a private solicitor. in 2006 to just one-fifth of all calls in qualifying people who need assistance in 2008. This trend is also reflected in the a dispute or right over land. 225 clients were informed about family number of family law queries received on mediation, and 215 were sent to the dis- the telephone information and referral Also in queries related to immigration or trict courts. Other agencies to which line, again highlighting an increase in refugee law, despite the drop in asylum clients were referred in 2008 included demand for legal assistance in non-family applications and the enlargement of the the Small Claims Court, the Gardaí, PIAB law matters. EU in 2004, the figures for 2007 and and the District Court Office. 2008 were significantly higher than in the There were marked increases in queries previous three years. There is a need to Trends related to our specialised areas of work ensure that persons with such queries 2008 was a busy year both on the tele- including debt and credit as well as social are able to access appropriate legal phone information and referral line and welfare. From 2004 to 2008 there was a advice and representation through the in the centres. Statistics for the tele- 55% increase in people attending FLAC Legal Aid Board if necessary. phone lines showed an increase of 53% centres with social welfare issues (29% in the number of calls received in 2008, increase from 2007 to 2008) and the The data collection programme provides and showed that the number of calls to number of people with debt and credit valuable insights to the wider communi- the information line doubled over the queries more than doubled in 2008 from ty on the gaps that remain in meeting last three years. the 2004 figure (53%). These increases legal need in Ireland. FLAC would like to may be due in part to the change in eco- take this opportunity to thank our dedi- Two-thirds of FLAC legal advice centres nomic climate but they may also be due cated and hardworking volunteers and contributed to the Data Collection to FLAC’s greater media profile and cam- all those who contributed to the colla- Programme in 2008, up from just half of paigning work, which means that other tion of information for their commit- our centres in 2006.The number of data organisations working in these areas may ment in helping the programme to suc- collections forms received in 2008 also refer people to FLAC. ceed.

Table 2 Areas of law discussed at FLAC centres 2004-2008 2004 2005 2006 2007 2008 Count % Count % Count % Count % Count % Family 1249 35.3 1425 37.4 1504 33.7 1,741 32.7 2438 31.5 Employment Law 361 10.2 343 9.0 455 10.2 508 9.5 1094 14.1 Succession/Probate 293 8.3 342 9.0 395 8.8 393 7.4 275 3.6 Property 265 7.5 288 7.6 389 8.7 436 8.2 439 5.7 Housing/Landlord 247 7.0 275 7.2 336 7.5 330 6. 2 521 6.7 Civil Non- Consumer Law 179 5.1 192 5.0 265 5.9 348 6.5 505 6.5 Law Family Credit and Debt 123 3.5 120 3.1 135 3.0 153 2. 9 259 3.4 Neighbour Dispute ------205 3.9 157 2.0 Immigration/Refugee law 95 2.7 83 2.2 83 1.9 222 4.2 258 3.3 Negligence/Personal Injury - - - - 102 2.3 165 3.1 413 5.3 Wills/Power of Attorney 3 0.1 1 0.03 13 0.3 14 0.3 268 3.5 Client-Solicitor Relations 41 1.2 49 1.3 34 0.8 20 0.4 89 1.2 Social Welfare Law 63 1.8 58 1.5 68 1.5 99 1.9 139 1.8 Other civil matters 420 11.9 445 11.7 444 9.9 392 7.4 446 5.8 Total non-family 2090 59.1 2196 57.6 2719 60.8 3,285 61.7 4863 62.7 Criminal Law 197 5.6 190 5.0 245 5.5 297 5.6 432 5.6 Total legal queries 3536 100 3811 100 4468 100 5,323 100 7,733 100

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The elephant in the room: Personal

Michael Green is Visiting Research Fellow at the College of Business, Social Sciences and Law, University of Wales in Bangor. He is one of the UK’s leading academics and researchers on the topic of personal over-indebtedness and régime design.

Introduction policy and the Insolvency Service became resolution rather than publically funded One of the primary economic and social committed to reviewing both corporate courts at its centre. features of developed and, indeed, some and personal insolvency legislation. developing economies, over the past Simultaneously, it instituted a programme of This early template for reform has proved decade has been the expansion of retail research and extensive consultation. This to be robust. IVA reform came through the credit and the resultant growth in unpaid combination led to a period of unprece- Insolvency Act 2000 (enacted in 2003) balances and serious personal over-indebt- dented reform which is now reaching the which largely removed the role of the edness. What happens if there is a break- final stages of its implementation. courts and speeded up the process. down in an individual’s array of credit bar- Subsequent informal administrative reform gains, particularly in a multi-creditor situa- Research commissioned by the Service came via the IVA Protocol Agreement of tion and what should be the philosophical concluded that bankruptcy was ineffective 2008 and further changes are due in 2009. and practical public policy response? This as a means of creditor recovery with the Bankruptcy reform came with the passage matter is now one of singular political IVA system working better. However, of the Enterprise Act 2002 (enacted in importance, if individuals and economies though well respected,the IVA had become 2004) which introduced a one-year dis- are not to suffer indiscriminately.This arti- a bloated, slow, costly and inefficient mech- charge period for ‘no fault found’ debtors cle summarises and describes contrasting anism and informal debt management plans and gave more protection to the family recent developments in relation to this were exceeding IVAs at a rate of over ten home. However, it simultaneously intro- topic in England and Wales and then in the to one. Over-indebtedness was forecast as duced a new punitive sanctions regime by Republic of Ireland. a looming social and economic problem for way of Bankruptcy Restriction Orders the UK with an estimate of two million ‘ice- (BROs) with a maximum disqualification of England and Wales berg bankrupts’ i.e. those who could not 15 years. In addition, entry into any formal repay their debts without - or even with - mechanism will generally lead to a debtor Individual Voluntary Arrangements (IVAs) liquidating their assets. Against convention- being barred from mainstream credit for and Bankruptcy al thought, overspending emerged as a the next six years.Thus, the idea that bank- Following the groundwork of the Cork greater cause of over-indebtedness than ruptcy is now easier in the UK is a myth. Committee (1977-1982), the Insolvency changes in financial circumstances. Act 1986 materially changed the rules sur- Other proposed mechanisms are con- rounding personal bankruptcy and the These conclusions demanded a practical tained in the Courts, Tribunals and management of insolvency. It introduced response in terms of reform running con- Enforcement Act 2007 and are likely to be for the first time the Individual Voluntary trary to perceived wisdom. An improved enacted in 2009 or 10.These include: Arrangement (IVA) as an alternative to regime should no longer be based on the 8 Debt Relief Orders – protection bankruptcy. This allowed debtors to pay belief that financial failure and moral failure for debtors with few assets and insuf- what they could afford over a finite period went hand in hand and should be effective ficient income to support an IVA and with the remainder of the debt being writ- in times of economic recession. Primarily, it who have debts of less than £15,000. ten off, i.e. a composition of debts. should move away from the dominance of 8 Enforcement Restriction Originally intended for the business debtor, a bankruptcy mechanism in favour of an Orders – protection for persons such as a partner or sole trader,it has been updated IVA system, where costs to the with a temporary break in income overwhelmingly used by ‘consumer State were minimised and payments to flow and who are anticipated to debtors’ since the end of the 1989-93 creditors were higher. Bankruptcy should resume earning within six or eight recession.Typically,an IVA will last some five be seen as a last resort and principally months of the Order. years, has an average debt level of £60,000 directed against those who can pay but will 8 A new Administration Order and provides a net yield of 25%-30% to not, those who have been guilty of some process, i.e.one payment to be distrib- creditors after costs (£5,000 - £7,500). offence or those for whom the medium- uted pro rata to creditors where total IVAs are administered by licensed insolven- term economics for recovery are hopeless. unsecured debts are less than £15,000, cy practitioners and their incidence has In turn, the regime should shift from a judi- this process to be administered by the expanded dramatically in recent years. cial to an administrative basis, with conflict courts with no judicial intervention. Personal Insolvencies in England & Wales 1998-2008 The advent of New Labour in 1997 brought a sea-change in Year 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008* political thinking and attitude. Bankruptcies 19.6 21.6 21.5 23.5 24.2 28.0 35.9 47.3 62.6 64.5 64.1 Insolvency reform became a IVAs 4.6 7.2 8.0 6.3 6.3 7.6 10.7 20.3 44.3 42.2 38.0 foundation stone of economic *Annual running rate based on 9 months to Q3: 2008

10 FLAC NEWS l JANUARY Ð MARCH 2009 flac News | Vol. 19, No. 1

over-indebtedness and public policy Finally,this Act has given enabling powers to debt to be repaid. increasingly approached by over-indebted the Lord Chancellor to bring informal debt individuals who are in work, are recently management plans (DMP) within the for- However, the position in the Republic over unemployed or are self-employed and who mal regime. a very similar chronology to that of England may have a house or other assets. Some of and Wales is markedly different on the these new clients are outside MABS’ tradi- The above table tracks the increase in the question of proposing and adopting solu- tional catchment and may also be outside uptake of both bankruptcy and IVA applica- tions for over-indebtedness. The their skill base.A fundamental philosophical tions from 1998 to 2008. Debtor petitions Bankruptcy Act 1988 provides for dis- question follows as to whether or not pub- now comprise 84% of all bankruptcies with charge after either a period of twelve years lic funds should be used to subsidise the creditor petitions remaining constant each or a settlement of at least half the debt plus efforts of commercial lenders to recover year over the entire period. One of the sig- costs or otherwise by creditor and Court civil debts. Should MABS’ efforts, capacity nificant features of the sector is the pres- approval. It is therefore a little-used and resources be confined to helping those ence of a well developed commercially- process.The 2007 and 2008 calendar years on low incomes; and should those who are based provider network which generates in total will have seen less than a dozen in work and who may have an asset base in solutions to distressed debtors in the bankruptcies and almost all such cases have turn be assisted by commercial operators working economy. At this point, some 30 business-related circumstances. Bankruptcy where creditors pay a reasonable price for firms deal with 90% of IVAs. The leading in Ireland is a High Court Process, is there- this service? dozen of these firms generally follow the by necessarily expensive and generally pre- ‘one stop shop’ model and will provide a cludes actions for lower value debts. Irrespective of any eventual improvement in range of options in addition to IVAs or Hence access is artificially constrained, its lenders’ assessment of borrowers’ credit- bankruptcy, including general advice, DMPs, scope limited and the process itself is cum- worthiness in Ireland, the historical errors remortgages or consolidation loans. bersome, slow and unsuitable for con- and the subsequent delinquent debt will still sumer debt recovery. have to be dealt with in terms of write offs. Increase in Unpaid Credit Balances The scale of this delinquency problem is The increases noted in the table above,par- Further, two further issues in Ireland stand likely to be significant in the context of the ticularly in IVAs, have coincided with the out as against the grain of current interna- Irish economy and will seriously impact on expansion of retail credit lending, unpaid tional practice. Firstly, there is no facility for banks’ already troubled balance sheets. credit balances and an escalation in the gen- attachment of earnings to help recover There seems little in terms of outcomes for eral level of the ratio of debt to household debts - individually or collectively. Secondly, the economy in the foreseeable future to income. In May 2001, unpaid unsecured the continuing practice of imprisonment for help already seriously distressed individuals/ credit balances stood at £130 billion; in what is notionally described as contempt of households, other than a personal windfall. December 2008 this had risen to £236 bil- court for debtors who do not appear at The absence of formal or informal mecha- lion. Potential delinquency within this figure court hearings and do not meet the terms nisms, other than MABS, to simultaneously could be in the range of £30 - 60 billion and of Instalment Orders. Both are exception- balance the accommodation of distressed has been exacerbated by the effects of the ally unhelpful. individuals within some format of econom- economic downturn. This is a huge figure ic, social or emotional rehabilitation, while and is further evidence of the lack of con- What, therefore, happens to less serious looking to maximise creditors’ recoveries trol exercised by lenders over their expo- levels of consumer over-indebtedness and and minimise the costs to the State, is sures. The ratio of household debt to recovery? Outside of bankruptcy itself, therefore very marked. MABS on its own is income has risen from 40% (1990) to 104% there is no equivalent mechanism to the unlikely to be sufficient without major (2001) to 170% (2008). Underpinning this IVA system or similar repayment schemes changes in skills, resources and structure. quantum shift has been a government ide- that exist elsewhere in mainland Europe. ology wedded to the notion of a relatively Apart from the highly respected Money There is as yet no accessible evidence in unfettered retail credit market, where con- and Budgeting and Advice Service (MABS), the public domain that would suggest that sumer spending has been one of the main- there is little or nothing in the informal this topic is yet deemed pressing at either a stays of now illusory economic growth. régime. Debt management companies are political or administrative level in govern- rare,given open access to the publicly fund- ment in Ireland. Equally, there is little sign The Republic of Ireland ed and free MABS service by debtors and that boundaries in levels of acceptability of In relation to unpaid credit balances, the creditors alike. moral hazard and commercial lending Republic has had a similar experience:The behaviour within society have been exam- figure for personal non-housing or invest- However, MABS is now subject to increas- ined. Experience from other countries ? ment borrowing has escalated from 3.9 ing financial and operational stress. The would suggest that the time lags associated ? billion (Q2: 1999) to 8.3 billion (Q2: autumn 2008 budget has provided that with over-indebtedness are difficult to 2001) to ?18.8 billion (Q3 :2008) including MABS is now to become part of the ? gauge. Consequently, action is best taken 2.9 billion of credit card balances. Recent Citizens Information Board but its struc- sooner rather than later and its need must events within the Irish economy clearly ture has not been rationalised.Anecdotally, be openly debated. show that it is unrealistic to expect all this it is apparent that the service is being

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Focus on FLAC: Peter Ward BL Chairperson of FLAC Council eter Ward BL joined FLAC in 1981 when still a student and has been a member ever since. ItP was just after the introduction of the Civil Legal Aid Scheme in 1980 and FLAC was in the process of adapting to the new environment whereby its cam- paign to establish a state-funded civil legal aid scheme had been successful – albeit partially.

Today Peter is Chairperson of FLAC Council. For many years Council was responsible for the day-to-day manage- ment of the service which FLAC provid- ed. Nowadays, however, the organisa- tion has a full-time staff. The administra- tive management of the organisation is in the hands of the Director General. FLAC Council has overall responsibility for the governance of the organisation and for policy formulation. This takes the concrete form of a devising a peri- odic strategic plan and overseeing its implementation. Great memories for Peter also include out the country. He believes that this FLAC’s successful test cases – most means the organisation can identify the Peter has been a member of FLAC for obviously the test cases on equality in most pressing legal issues facing the poor- 28 years. His involvement in the organ- social welfare payments and recent suc- est people in society. He cites an exam- isation has changed over that time, hav- cess in the case of Lydia Foy on the law ple of this:An End Based on Means?,FLAC’s ing spent many years as a volunteer on transgender. report on debt published in 2003 which adviser both in the evening centre at identified the need for a complete over- Westland Row and at head office. Some In his view,“FLAC has always had a dual haul of the legal regulation of credit in this of Peter’s fondest memories of working role. It provides a service which is badly country, including the issue of reckless in FLAC date back to the 1980s, when needed to people who otherwise would lending. the head office was one small room at not have access to legal advice from the top of a building in North Earl solicitors and barristers. This has always Peter is hugely impressed by the Street. As he says, “it was a tiny space been at the core of FLAC’s existence dynamism and idealism of law students but it was a hive of activity with huge and continues to be so.” and young lawyers, who for him represent demands being placed on the service at the lifeblood of the organisation. a time when unemployment was At the same time FLAC has sought to “Combined with the continued support extremely high and the economy was campaign for law reform in the areas of and involvement of the established pro- completely stagnated – and it survived law in which it works. In the 1970s this fession, this means that FLAC will contin- on doughnuts from the Kylemore meant that many proposals for reform ue to thrive as the most progressive legal Bakery. It was a time of great energy of family law grew naturally out of the services organisation in the country,” he and fun in the organisation and lifelong family law service which FLAC provided. says. friendships resulted.“ In the last number of decades FLAC has likewise made proposals most success- Most recently FLAC has led the debate A great milestone was reached for Peter fully in the areas of social welfare law, on the role of Public Interest Law gen- when FLAC moved into its own premis- employment law and the law governing erally in Ireland and Peter hopes that the es in Dorset Street in Dublin’s north the enforcement of debt., while also organisation will expand this debate in inner city. He believes this has given the being at the heart of the debate on the the near future:“FLAC is a vital and pro- organisation a secure base and the abili- provision of legal services. gressive organisation with a large pool ty to plan long-term in a way that many of good will in the legal profession, com- non-governmental organisations find dif- Peter sees FLAC as networked into front- mitted volunteers and a highly skilled ficult. line services and organisations through- specialised full-time staff.”

12 FLAC NEWS l JANUARY Ð MARCH 2009 flac News | Vol. 19, No. 1

Inside the Centre: The Free Legal Advice Centre @ MACRO, Nth King Street, Dublin 7

Julie Fitzgerald, and take pleasure in helping unteer at FLAC I am presented with a dif- Solicitor and FLAC people learn about their ferent issue. I think this shows how the volunteer in the legal rights in general organisation is extremely important in Macro terms and directing helping people in all types of situations. I Community those people to the decided to volunteer because I was lucky Resource appropriate forum enough to go to college and qualify as a Centre, North for their complaint. barrister. I felt that I should use the train- King Street, ing that I received working with FLAC. Dublin 7: Over the past year volun- I’ve been a volun- teering with FLAC I teer for three years. I have come in contact learned about FLAC with people from all while studying law at walks of life and all UCC, being a volunteer was backgrounds. I feel highly encouraged and it has been a Brendan I've learned a great very rewarding experience. It is a pleasure McKeon BL; deal from the vary- to be part of such a noble tradition. Barrister and ing questions I've FLAC volunteer been asked. Many of Being a volunteer has taught me a lot at North King St: the queries relate to about how the law and the Courts system family law or criminal is still a daunting prospect for many peo- I have been volunteering law but some more ple. It has also made me aware of the with FLAC for about a year unusual questions arise now invaluable work carried out by the now. My Master during my first year and then. The staff of FLAC are Citizen’s Advice centres around the coun- at the Bar volunteered with FLAC and she always very well organised and have infor- try. More recently, it has made me aware was the one who really got me interested mation packs ready for each consultation of our growing immigrant population and in participating. She told me that I should should volunteers need to look up any the problems they face in Ireland and of apply to be a volunteer as it is a good way information or provide clients with the need to continue the good work in to help people who need legal advice but brochures. educating people about their basic rights, who may not be in a situation to gain that whether in relation to Employment mat- advice easily. I think if any barrister or solicitor is con- ters, Family law, Landlord and Tenant rela- sidering volunteering with FLAC they tions or Consumer rights. It provides a great opportunity to develop should definitely participate. It is a fantas- my knowledge of different legal issues tic organisation. I have seen over the past I would encourage all solicitors to partic- which I may not otherwise experience year how you can make a difference by ipate in FLAC, to share their knowledge during the working day. Every time I vol- volunteering.

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Casework Round-up: Social Welfare Appeals

LAC is representing a number of merely ‘present’. As a result, the As well as contesting the Department’s clients in an important review by Department claims, people in the asy- application for a review in the four suc- the Chief Social Welfare Appeals lum/leave to remain process cannot build cessful appeals, FLAC itself subsequently FOfficer of the Habitual Residence up any entitlement to benefits, no matter sought a review by the Chief Appeals Condition for qualifying for social welfare how long they remain here, unless or Officer of another four cases where an benefits. Four of the clients had won until they are given leave to remain. Appeals Officer had found against other social welfare appeals against the refusal FLAC clients based on Goncescu-type of Child Benefit but then the The Department now routinely relies on arguments. These cases included applica- Department of Social and Family Affairs the Goncescu judgment in new social wel- tions for Carers’ Allowance and Disability asked the Chief Appeals Officer to review fare appeals as well. Allowance as well as Child Benefit. the decisions. The clients are all in the asylum/leave to remain process and the In response to the Department’s claim, It is not clear whether the Chief Appeals Department is claiming that no-one who FLAC has argued that the Goncescu deci- Officer will decide on all these cases is seeking asylum or leave to remain can sion was made before the introduction together since they raise similar issues, or satisfy the Habitual Residence Condition of the Habitual Residence Condition whether he will decide the earliest (HRC) for welfare benefits. and in a case that did not concern social (February 2008) case first and then apply welfare issues, but instead a claimed that reasoning to the others. These deci- These cases are about Child Benefit but right to establishment as self-employed sions will be very important in relation to the decisions in them will also affect persons under EU bilateral agreements determining the entitlement to social applicants for a wide range of other non- with candidate member states. FLAC welfare benefits of people in the asy- contributory benefits which are subject submitted that Goncescu could not just lum/leave to remain process. to the HRC. A decision on these cases is be transposed to quite different circum- expected shortly as it is over a year since stances under a different statutory FLAC has also issued Judicial Review pro- the Department applied (in February framework. ceedings to challenge the Department’s 2008) for a review of the first of these refusal to pay Child Benefit to the woman successful appeals. The Department has In addition, FLAC pointed out that the whose appeal succeeded in February refused to pay Child Benefit to any of the legislation governing the Habitual 2008. There is no provision in the legis- four applicants pending the outcome of Residence Condition, which contains lation to put a stay on the payments of the review. quite detailed and specific criteria for benefits pending a review by the Chief complying with the condition, had been Appeals Officer. FLAC is arguing that the The Habitual Residence Condition was enacted after the Goncescu decision and Department, as a party to the proceed- introduced in 2004 to guard against an should supersede the reasoning con- ings, should not be able to unilaterally influx of supposed “welfare tourists” tained in it. In particular, a supposed decide to withhold payment after the from the new EU Accession states. The general prohibition on compliance with duly appointed Appeals Officer, acting influx never happened but the HRC has the HRC by anyone in the asylum/leave entirely within his/her jurisdiction, has remained. The criteria for fulfilling the to remain process could not be taken to allowed an appeal. HRC were set out in the Social Welfare override specific criteria adopted subse- (Consolidation) Act, 2005, amended by quently in legislation and which made no The Judicial Review proceedings are the Social Welfare and Pensions Act, reference to such a blanket ban. ongoing. 2007. It is nowhere stated in either Act that people in the asylum/leave to remain process are to be excluded as a group or class. Accessibility Case against In seeking these reviews by the Chief Appeals Officer, the Department has Iarnrod Eireann relied upon a decision by the Supreme Court in the case of Goncescu & Others v. ubmissions closed in February after a two-day hearing in a case The Minister for Justice, Equality and Law where FLAC represents a disabled man who had complained to the Reform [2003] IESC 49, where judgment Equality Tribunal about wheelchair accommodation on inter-city was given on 30 July 2003. The trains.S He also claimed that he had been victimised and harassed because Department argues that this case is of his complaints. The Equality Officer reserved her decision in what was authority for holding that persons quite a complex case which had also taken a long time to come to hearing. allowed to enter the State to apply for A decision is expected shortly. asylum are not really “resident” here but

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Challenge to ban on deaf jurors

n 2008 FLAC represented Ms Joan Sign Language interpreters. She did not Clarke, a deaf woman from Galway expect to hear any more about it. To her Asked by SIGNMatters, the magazine of who last year challenged her exclu- surprise the Coroner’s office got back to the British Deaf Association,how this fit- Ision from jury service on account of her her to say that they could not book ted in with previous decisions barring deafness. Joan’s case was heard in the interpreters for the date in question but deaf persons from juries, the British High Court at the beginning of June 2008 they arranged for her to serve on a jury Department of Constitutional Affairs and a judgment is expected soon in this on another day with the assistance of drew a not entirely convincing distinc- case which is important for ending dis- the interpreters. tion between the role of juries at crimination and exclusion of the deaf inquests and in criminal trials. They community. Ms Barber was nervous about how she seemed to forget that juries also sit in would manage at the hearing but all some civil cases such as defamation During the hearing, FLAC stressed the went well and the inquest passed off actions. position in the United States where deaf without difficulty. Afterwards, Derby persons can and regularly do serve on Coroner Peter Ashworth commented: Here in Ireland, there is no distinction juries. On the other hand, the State, in I can say quite clearly that her par- between the eligibility requirements for opposing Joan’s challenge, relied on the ticipation did not disrupt the hear- juries in criminal or civil trials or example of the UK where deaf people ing in any way. It was clear to me inquests. Deaf persons cannot serve on are still excluded from jury service at all that, with the help of two excellent any of them. levels. sign language interpreters, she fully understood the issues and partici- It happened in Derbyshire without the Or are they? We have recently heard pated fully. After the inquest one of sky falling in. Isn’t it time this outmoded about an interesting case in the UK the jurors gratuitously commented discrimination was scrapped, the way the where a deaf woman did serve as a juror that she had taken a very real part in upper age limit for jury service was in a Coroner’s Court. the decision-making. scrapped last year?

In 2005, Joanne Barber received a sum- Deaf persons who are otherwise fit FLAC is grateful to SIGNMatters and the mons to serve on a Coroner’s jury in and well should always, with the help British Deaf Association for the information Derbyshire. She replied saying that she of good sign language interpreters ... in this article. was deaf and would need the service of feel fully qualified to serve as jurors.

Implementing Human Rights in a Time of Change: Facing up to Challenges under the International Covenant on Civil and Political Rights s regular readers of FLAC implement them. Three members of the Also confirmed to speak are Éamonn News will be aware, in July UN Human Rights Committee will MacAodha, Chief Executive of the Irish 2008 Ireland was examined by address this conference, including: Human Rights Commission; Michael Athe UN Human Rights Committee 8 Judge Elisabeth Palm, Rapporteur Farrell, Senior Solicitor at FLAC and Dr under the International Covenant on on Ireland and former judge of the Siobhan Mullally of UCC’s Centre for Civil and Political Rights (ICCPR). Having Swedish courts and former Vice- Criminal Justice and Human Rights. participated in the shadow reporting President of the European Court of process of the examination, the Free Human Rights; The conference will take place in the Legal Advice Centres (FLAC), the Irish 8 Judge Rajsoomer Lallah, former Radisson SAS Hotel, Golden Lane, Council for Civil Liberties (ICCL) and Chief Justice of the Supreme Court Dublin 8 on 6 April. Anyone interested the Irish Penal Reform Trust (IPRT) are in Mauritius; in attending should contact FLAC’s Legal organising a follow-up event. 8 Professor Michael O’Flaherty, Co- Research Officer Edel Quinn at (01) Director of the Centre for Human 8745690. The purpose of the conference is to raise Rights at the University of awareness of the UN Committee’s rec- Nottingham and the Irish elected We will report on the outcomes of the ommendations on Ireland and to open a member of the UN Human Rights conference in the next edition of FLAC dialogue with stakeholders on how to Committee. News.

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Kenyan legal aid activists murdered wo activists from a Kenyan Alston's ensuing report criticised Kenyan organisation which provides free President Kibaki and called for the sack- Read more at: legal aid and advice to poor peo- ing of the police chief and the attorney pleT were murdered on a busy street in general. The report provoked outrage Oscar Foundation: the country’s capital on 6 March, in what from Kenyan authorities. http://oscarfound.org/ appears to be retaliation for their expo- sure of police brutality. The Oscar Foundation, founded by Report of UN Special Kingara in 1998, made its name investigat- Rapporteur on extrajudi- Director Oscar Kamau Kingara and ing police abuses. Since 2007 it has cial executions from fact- Programme Coordinator John Paul Oulo, reported thousands of "enforced disap- finding mission to Kenya: both of the Oscar Foundation, were shot pearances" and extrajudicial killings by http://www2.ohchr.org/ at close range in their car by gunmen in police. Kingara was a 37 year-old lawyer, english/issues/executions/ central Nairobi. Oulo a former student activist. index.htm They had met and briefed Philip Alston, the UN special rapporteur on extrajudi- Both the Kenya National Commission on Kenya National cial, summary or arbitrary executions, Human Rights (KNCHR) and the UN Commission on Human when he was conducting a 10-day investi- have demanded an investigation into the Rights: gation in security force abuses in Kenya in killings. Kenyan police have denied any http://www.knchr.org/ February. involvement.

Pakistan: Rule of law restored here was good news for the Since then there have been widespread sations against him, and it was speculated people of Pakistan in mid-March protests, spearheaded by the country’s that the new president feared Chaudhry when the government finally lawyers. Chaudhry had a reputation as would instigate charges against him for Tacted to restore the judiciary and rein- fiercely independent and had challenged corruption. state Chief Justice Iftikhar Chaudhry. the Musharraf regime on a few occasions. The interim Chief Justice, Hamid Dogar, Former President Pervez Musharraf had With the change in government follow- will now retire. dismissed the Supreme Court head in ing the election of Benazir Bhutto’s hus- 2007, breaching the separation of powers band, Asif Ali Zardari, it was expected There will be a longer analysis of the current doctrine and shattering the independ- that Chaudhry would quickly be reinstat- state of the legal system and judiciary in ence of the judiciary. ed. Instead, the new regime levelled accu- Pakistan in the next issue of FLAC News.

Making access to justice possible FLAC has been working for equal access to justice for all people in Ireland since it was set up in 1969. Forty years later, we are still campaigning, researching and providing practical help to people all over the country. In 2008, FLAC answered some 9,500 queries over its telephone helpline and provided free legal advice to around 7,500 people via its centres around the country. The current economic climate means increased strain on FLAC’s workload. If you would like to help FLAC continue its work promoting equal access to justice for all, please consider making a donation to the organisation. You can help FLAC by: 8 Sending a cheque/postal order with your details to FLAC, 13 Lower Dorset Street, Dublin 1 8 Logging on to www.flac.ie and following the link to www.mycharity.ie 8 Making a credit/laser card donation by completing and returning the donation form below:

E I am : a PAYE taxpayer Name: ...... Amount: ...... a non-PAYE taxpayer If you are a PAYE-only taxpayer, a gift of E250 or more could be Address: ...... worth up to an extra 72% to us! ...... Please debit my: Visa Mastercard Laser Card number: Expiry date: | CSV:

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