!1 Researchers Matthew O’Shea Arlene Walsh-Wallace Aislinn Finnegan Emily Duncan Samantha Tancredi Chloe Dalton Alan Eustace Campbell Whyte Hannah Edwards Orla Murnaghan Veronica Janice Bleeker Caoilainn McDaid Nathan O’Regan Sierra Mueller-Owens Adam Elebert Ronan McGurrin Gareth Foynes Nadine Fitzpatrick Nicola O’Corrbui Jack Synnott Eolann Davis Eoin Forde Roisin Casey Ella Woolfson Seamus Small Editor: Celia Reynolds With thanks to: Professor Gerry Whyte, Trinity College Dublin Eilis Barry, CEO National FLAC Rachel Power, PILA & FLAC Strategic Development Manager Mary Murphy, Secretary, Trinity FLAC Caoilainn McDaid, Fundraising Officer, Trinity FLAC Chloe Dalton, Clinics Coordinator, Trinity FLAC Catherine Teevan, OCM, Trinity FLAC Ivan Rakhmanin, PRO Trinity FLAC !2 DISCLAIMER Trinity FLAC assumes no responsibility for and gives no guarantees, undertakings or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in this report and/or for any consequences of any actions taken on the basis of the information provided, legal or otherwise. The information provided in this report is not a complete source of information on all aspects of the law. Trinity FLAC takes no responsibility for any information or advice passed from a client to a third party. If you need professional or legal advice you should consult a suitably qualified person at one of our weekly clinics. If there are any questions, please contact: [email protected] !3 Trinity FLAC 50th Anniversary Public Interest Law Research Report Table of Contents Foreword 5 Professor Gerry Whyte Introduction 7 FLAC Legal Research Officer: Celia Reynolds Part I: Socioeconomic Rights I.I Socioeconomic Rights in Ireland 10 Nicola O’Corrbui, Roisin Casey, Celia Reynolds I.II Comparative Analysis of Other Jurisdictions 21 Chloe Dalton, Caoilainn McDaid, Ella Woolfson Part II: Rules of Practice and Costs of Litigation II Rules of Practice and Costs of Litigation 36 Aislinn Finnegan, Sierra Mueller-Owens, Matthew O’Shea, Campbell Whyte Part III: Standing of Campaigning Groups III.I Irish Jurisprudence on Standing of Campaigning Groups 54 Adam Elebert, Eolann Davis, Gareth Foynes III.II Comparative Analysis of Other Jurisdictions 62 Ronan McGurrin, Nathan O’Regan, Seamus Small Part IV: Multi-Party Litigation IV.I Representative Actions in Ireland 73 Alan Eustace, Arlene Walsh-Wallace, Hannah Edwards, Eoin Forde IV.II Comparative Analysis to the United States 84 Samantha Tancredi, Veronica Janice Bleeker, Emily Duncan IV.III Comparative Analysis to Other Jurisdictions 95 Jack Synnott, Orla Murnaghan, Nadine Fitzpatrick !4 Foreword Professor Gerry Whyte When FLAC was established in April 1969, it had three objectives: a) To oblige the State to establish a comprehensive scheme of civil legal aid and advice; b) In the meantime, to provide free advice to those unable to afford the services of private practitioners; and c) to improve the education of law students by giving them an opportunity to be involved in providing legal support to marginalised individuals and communities. Fifty years later, FLAC’s services, and the services of other legal aid organisations, are still in great demand, a telling reflection on the limitations of the State scheme of civil legal aid, first introduced in 1980 and put on a statutory footing in 1995. But in addition to making a very significant contribution to the provision of civil legal aid and advice, FLAC has also contributed significantly to the education of law students, in particular, through the operation of FLAC societies in most of our law schools. Trinity College’s involvement with FLAC goes back to FLAC’s earliest days when undergraduate students like Susan Denham and Alan Shatter worked as FLAC volunteers and Kadar Asmal sat on FLAC’s executive as one of four advisors representing each of the four institutions of legal education in Dublin at the time. Trinity FLAC was established in 1986/1987 and formally recognised as a college society in 1990/91. Since that time, it has pursued the twin aims of providing legal advice to Trinity students and also raising awareness among the student population about the need for legal and social reform in certain areas. Marking the fiftieth anniversary of the establishment of FLAC, Public Interest Law and Litigation in Ireland continues in the proud tradition of Trinity FLAC, providing a well- researched and very accessible analysis of four key issues relevant to Irish public interest lawyers. These issues are the system of protection for socioeconomic rights in this !5 jurisdiction, the impact of rules of practice and procedure and legal costs on public interest litigation, the issue of standing in public interest litigation and, finally, the legal regime regulating multi-party litigation here. In relation to each topic, the report provides a comparative analysis of other common law jurisdictions. Public interest law entails the use of political campaigning and, where appropriate, litigation to address the needs of marginalised groups and individuals. Over the past fifty years, FLAC has established a reputation as Ireland’s leading public interest law organisation and has inspired generations of law students to give of their time and energy in the pursuit of social justice. This current publication continues in that proud tradition and is a testimony to the values of social solidarity and empathy that animate Trinity FLAC. Gerry Whyte !6 Introduction TCD FLAC Legal Research Officer: Celia Reynolds In recognition of the 50 year anniversary of the founding of national FLAC, Trinity FLAC decided to conduct this research project on public interest law and litigation in Ireland. The intention of this paper is to provide an analysis of the key issues in PIL, evaluating the current legal system and providing a comparative analysis to other jurisdictions. The hope is that this project will be accessible to both law and non-law students as well as legal and non- legal campaigning organisations. The recommendations that will be made in the concluding remarks will reflect the positions advanced by the volunteer researchers. Part I of this paper will begin by discussing the system of protection of socioeconomic rights that exists in Ireland. The purpose of this part will be to provide public interest litigation in context, exploring judicial conservatism with reference to the background principles that form the underpinnings of the Irish justice system. The analysis will support O'Cinneide assertion that Anglo-American constitutional systems usually lack a ‘social dimension’, rejecting attempts to direct the executive and legislative branches of government from giving effect to principles of social justice.1 For the purpose of this Part, it should be noted that the existence of socioeconomic rights will be assumed.2 Section I.I will attempt to summarise the main arguments advanced against judicial protection of socioeconomic rights, making reference to key Irish judgments that have framed this debate. Efforts will also be made to capture the academic response to such conservative arguments, ultimately attempting to provide a brief overview of the legal discourse. Section I.II will further this discussion by providing a comparative analysis of socioeconomic rights protections in other jurisdictions. The intention, of course, is to bring the Anglo- American background principles that form Irish legal discussion into contrast with thematically opposed constitutions. This will be particularly effective when having regard to 1 Colm O’Cinneide, ‘Zones of Constitutionalisation and the Regulation of State Power: The Missing Social Dimension to the Irish Constitutional Order’ 37 DULJ 173 (2014). 2 This is not an accepted matter in the Irish legal system, controversies exist surrounding the identification of such rights, and whether they may be implied into the Constitution, or read from various provisions. !7 the Indian and South African constitutions. Canadian vindication of socioeconomic rights will also be considered, providing a useful example of an Anglo-American Constitution that supports judicial protection in this arena. Part II of this report will focus upon the rules of practise and costs of litigation that shape the Irish justice system, first with reference to the general access to justice, and then secondly with a focus on public interest litigation in particular. Acute attention will be paid to how costs of ascertaining legal advice and taking claims acts as a barrier to justice. A brief comparison of the Irish approach will also be given to other common law jurisdictions, with the intention of placing Ireland in a global context. Section II.I will also draw attention to the various rules that affect public interest litigation, including those concerning Ireland’s ‘loser pays’ system, maintenance, champerty and the doctrine of mootness. The legal issue of standing in public interest litigation will be brought into focus in Part III, noting how narrow or broad interpretations of this doctrine may impede or empower the advancement of social justice. A simplified history of the doctrine of locus standi will be provided in the Section III.I, noting the doctrine’s limited flexibility. Focus will be paid as to the treatment of campaigning groups in Irish jurisprudence and it will be concluded that the legal system should better embrace the goals of public interest law. The second half of this part, Section III.II will again provide a comparative analysis of Ireland’s legal approach to other jurisdictions, in this case with a particular focus on Canada and the United States. Canada will be identified as a having a favorable approach, in creating a division between private standing and ‘public standing’, such that public interest issues may be appropriately brought into the remit of a court’s decision. The final and largest part of this paper, Part IV, will discuss multi-party litigation, a litigation tool that adequately matches the goals of public interest law. The current system of representative actions in Ireland will be criticised as under utilised and overly constrained.