Public Interest Litigation
FLAC sees public interest litigation as one element of public interest law which is most effective when done in tandem with the other key elements. Public interest litigation can be used to help secure social reform either by winning cases which lead to changes in the law or by using court challenges to highlight anomalies and injustices which then lead to public pressure for change.
Public interest litigation has been used successfully in the past to bring about important reforms. Examples are: the Airey case which led to the establishment of the civil legal aid scheme; the Norris case which led to the decriminalisation of homosexuality; the McGee case which led to the legalisation of contraception; and the recent O'Donoghue case which led to greater funding for the Legal Aid Board.
This type of litigation is distinguished from ordinary legal work because it seeks to change the law as well as securing a benefit for the individual involved. It can involve doing large numbers of individual cases on behalf of disadvantaged or marginalised people, both to secure their individual rights and bring about a change in public policy. On the other hand, it can involve strategically choosing test cases to litigate in depth in order to challenge unjust or unfair laws or regulations. The distinction is not rigid. Often test cases will only emerge from what may seem at first to be routine but important individual cases.
Public interest litigation doesn't only take place in courtrooms. It can involve taking cases to Social Welfare or other tribunals or through international mechanisms like the European Court of Human Rights or the European Committee on Social Rights.
FLAC is committed to using public interest litigation in tandem with the other elements of public interest law to secure change for vulnerable and disadvantaged people in its key priority areas.
FLAC casework
This section covers more recent casework only. For information on historical cases, contact us.
Foy case
The case of Lydia Foy started in the High Court again on Tuesday 17 April 2007. A judgment is being considered by Justice Liam McKechnie, who also heard the case when it first came before the High Court in 2002. Ms Foy is seeking to have her birth certificate amended to reflect her correct gender. This is a very important case for public interest law in Ireland and a full report is included in the January-March edition of FLAC News (Vol 17, Issue 1).
The High Court found against her in 2002 (Foy v An t-Ard Chlaraitheoir & Ors [2002] IEHC 116 (9 July 2002)) but two days later the European Court of Human Rights held that the UK had breached the rights of two transgendered women by refusing to recognise their realigned gender and give them new birth certificates. The cases were Goodwin v UK and I v UK. The UK has now changed its law in line with the Strasbourg decision.
Ms Foy made a new application to the Registrar General in 2005 citing his duty to comply with the European Convention on Human Rights under the ECHR Act 2003, but it was also refused. She is now seeking a declaration that the Irish law on transgendered persons is incompatible with the European Convention. This is an important case for the rights of transgendered persons and for the effect of decisions of the Strasbourg Court in Irish law.
Deaf jurors case
FLAC was given leave in 2006 to apply for Judicial Review in a case involving a deaf woman who was prevented from serving on a jury. This was based on the Juries Act 1976, which specifically excludes deaf persons from jury service. The woman was quite willing to serve and the local court staff had originally agreed to engage a sign language interpreter to assist her.
This is an important issue regarding respect for the dignity of deaf people and their role as full members of the community. There were a number of cases on the issue of deaf jurors in the United States until the Americans with Disabilities Act in 1990 put an end to discrimination against blind, deaf or disabled persons in the courts.
Free Travel case
The European Committee on Social Rights has given the Irish government until 15 June 2007 to respond to a complaint by FLAC and the International Federation of Human Rights (FIDH) over its failure to extend the free travel scheme to Irish pensioners living outside the State. A small segment of people who live abroad, but who have paid pension contributions and are in receipt of Irish contributory pensions, are excluded from the scheme when they return on holiday or for family visits. Complaints under the Social Charter can only be lodged through a recognised international trade union or NGO. The complaint is made under the Revised European Social Charter and concerns the Government's refusal to extend the free travel scheme for people aged over 66 to Irish pension holders who are not resident in Ireland during their periodic visits to this country.
Child benefit/HRC cases
FLAC has taken a number of cases recently where asylum seeking or immigrant parents have been refused Child Benefit under the Habitual Residence Condition (HRC), which was introduced on 1st May 2004. It requires claimants to have lived in Ireland for a significant period of time and to have their "centre of interest" here before they can receive social welfare benefits. The authorities generally claim that time spent here as an asylum-seeker does not count towards meeting the HRC.
This is part of FLAC's campaign to restore Child Benefit as a universal payment. The parents in question are usually refused Early Childcare Supplement as well. Child Benefit is not means tested so one of the effects of the HRC is that the rich, who may not need the money, get it; while the really poor and marginalised are refused.
In these cases we are seeking to test the criteria used for deciding whether people satisfy the HRC as these are often unclear or inconsistent. Most of these cases are still at appeal stage but some decisions have indicated that not all asylum-seekers are excluded. And in one recent case, a woman from central Africa, the rest of whose family had been wiped out in political conflict, was granted Child Benefit for her younger sister backdated to when they arrived in Ireland in early 2004. This may affect other asylum-seekers who arrived here before the HRC was introduced.