Christopher McCann: Defending a Traveller family in High Court proceedings where civil legal aid is not available
Christopher McCann, solicitor and head of the Traveller legal service at legal rights group FLAC, recounts a High Court case where civil legal aid was not available.
On 29 July 2021, FLAC called on the Minister for Justice, in the context of an upcoming review of civil legal aid provision, to ensure that the State’s civil legal aid scheme is subjected to comprehensive reform. FLAC was joined in its call by over 50 NGOs, practitioners and legal academics.
Among its recommendations, FLAC proposed that the areas of law covered by the State’s civil legal aid scheme required expansion. In its current format, civil legal aid is principally provided for family law matters. While this is an essential service, it reflects only a portion of the unmet legal need of the State’s most vulnerable individuals.
The ongoing absence of civil legal aid for families facing eviction is a matter of serious concern for FLAC. FLAC’s Traveller Legal Service, operating since March 2020, routinely assists clients who are in urgent need of legal assistance but who cannot access the necessary support. An example of one such case is set out below.
FLAC’s Traveller Legal Service recently acted in proceedings taken against a Traveller woman, a single mother of four children, by a semi-state body. The semi-state body had brought proceedings against the residents of a lawfully established halting site. The residents, including FLAC’s client, had lived on the site for over 30 years. The semi-state body argued that the residents had no legal right to remain on the site, due to the expiry of a licence between it and the local authority which provided the halting site.
The proceedings had initially been commenced and progressed without FLAC’s client being represented. When FLAC came on record, the semi-state body was seeking to have FLAC’s client summarily removed from the site by court order, due to her failure to file court pleadings within the time allowed by the Rules of the Superior Court.
FLAC entered the proceedings and successfully argued for further time to be allowed to its client. FLAC submitted detailed information requests to obtain its client’s housing file and records of correspondence between the local authority and the semi-state body. In FLAC’s submission the action of the semi-state body did not adequately take account of its client’s rights under statute, the Constitution and the European Convention on Human Rights.
Ultimately, the case settled before trial and the severe consequences facing FLAC’s client were avoided.
The civil legal aid scheme
As FLAC recently highlighted in its evidence to the Joint Oireachtas Committee on Key Issues Affecting the Traveller Community, the Civil Legal Aid Act 1995 contains practically insurmountable structural barriers to Travellers receiving sufficient and timely legal aid in cases relevant to housing and evictions:
the State’s scheme of civil legal aid does not explicitly extend to the provision of advice and/or representation in cases concerning housing and evictions. Nor could the scheme respond in a sufficiently timely manner to evictions, which in some circumstances see Travellers provided with no notice or a period of 24 hours in which to vacate a site on pain of potential prosecution and/or having their caravan impounded.
This is because s.28(9)(a)(ii) of the 1995 Act provides that legal aid shall not be granted in “disputes concerning rights and interests over land”. There is therefore a presumptive prohibition against granting civil legal aid for cases concerning housing or evictions, which, since its launch, have comprised 64% of the Traveller Legal Service’s cases. Additionally, the waiting times for appointments at law centres, according to the Legal Aid Board’s most recent annual report (2019), range from 7 – 52 weeks. Even the shorter of these periods would be insufficient to deal with an eviction order with 24 hours’ notice for compliance.
As a result, Travellers are regularly left with no source of advice or representation, yet are faced with complex legal processes against well-funded and represented opponents. In 2019, the UN Committee on the Elimination of Racial Discrimination (UNCERD) expressed its “concern about the lack of legal aid provided for appeals concerning social welfare, housing and eviction, which has a significant adverse impact on Travellers and other ethnic minority groups to claim their rights”.
The Department of Justice’s review of the scheme of civil legal aid is to be welcomed. The deficiencies in the current scheme are plain to see and an unacceptable reality for some of the State’s most vulnerable people. In the case study outlined above, a single mother was facing removal from her home and potentially being made homeless on foot of a summary procedure for her failure to engage with a court process being driven by a semi-state body with an extensive legal team.
Many such cases involving similar disparities of legal expertise are concluded without a vulnerable party being effectively heard and having their rights asserted. In FLAC’s submission, initiatives like the Traveller Legal Service, funded by private philanthropy, cannot be relied upon or expected to address this gap. Only the State may do so and, in fact, is obliged to do so under European and International human rights instruments.