Eilis Barry

On foot of a meeting requested by FLAC, Department of Justice officials have provided it with details of a number of clarifications and proposed changes to the Civil Reform Bill which, if implemented, could address some of the issues with the bill. The changes are, however, still “subject to drafting and Government approval”.

The department informed FLAC that it is their intention to set the standard for getting permission to take a judicial review cases at an “arguable grounds” threshold and that they are reviewing the inclusion of language in the bill which would require cases to have a “reasonable prospect of success”. 

FLAC has raised concerns that requiring people to show that their case has a “reasonable prospect of success” would effectively block public interest cases which raise complex or new legal issues which have not been considered before by the courts, such as the recent O’Meara judicial review case concerning cohabitants’ access to the Widower’s Pension.

The department has also stated that it is intended to include language in the bill which would address concerns about its provisions blocking people from taking constitutional cases as “plenary actions”. The department intends to amend the language used in the proposed legislation about “alternate remedies” - to ensure that people without an effective and meaningful alternate remedy are not blocked from taking a case.

The new discovery regime introduced in the bill will only require the production of documents after a defence has been delivered in a case – rather than at the very outset as had been proposed in the General Scheme and which would have created a major practical barrier.

The Department expects to publish the Civil Reform Bill in the third quarter of 2026, and it intends to hold a ‘symposium’ about the legislation before the summer.

FLAC chief executive, Eilis Barry, said: “As presently drafted, the General Scheme of the Civil Reform Bill would have a disproportionately negative impact on ordinary people that FLAC represents who are trying to establish and vindicate their rights in relation to very basic public services like social housing, emergency accommodation, additional educational supports, and basic social welfare payments.

“FLAC has been seeking consultation and engagement about potential changes to judicial review since 2019 - so we welcome the Department’s engagement with us, and the updates they have provided may address some of the issues with the Bill. However, we still have very serious concerns about the Bill. For example, we do not see any justification for its proposed reduction of the already very restrictive 12-week time limit for taking a case to eight weeks. If implemented, this restrictive time limit will put access to judicial review out of reach for people who don’t have the resources to pay for and access immediate legal assistance.

“Our concerns also remain about proposals to limit the court’s discretion to grant judicial review, to limit the availability of appeals in judicial review cases, or to restrict when even successful applicants may be awarded their costs. It is incumbent on the Department to provide the evidential basis, policy basis and the rationales for each of the changes it is proposing before they proceed any further.”