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Ireland
Strengthening Traveller Rights through Civil Legal Aid Reform By Hugh Gallagher, JS Law and Political Science Early this year, the Department of Justice committed to a review of the civil legal aid system in Ireland, under its current strategic objective to “improve access to justice and modernise the courts system.” FLAC (Free Legal Advice Centres) called upon the Minister for Justice to deliver a comprehensive review of this system, a central aspect of this rooted in their experience working with “vulnerable and marginalised communities [who] shared and discussed their experience of unmet legal need and difficulties with the civil legal aid system.” Christopher McCann, head of FLAC’s Traveller Legal Service, has highlighted the disproportionate impact the “ongoing absence of civil legal aid for families facing eviction” has on Travellers. As referenced in FLAC’s 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 ramifications of this are broad, beyond the immediate injustice done to any individual Traveller, the inadequacies in our current system of civil legal aid allow for overly broad eviction powers to be deployed against Travellers as a collective group, thereby creating what Darren O’Donovan, discussing the protection of Traveller cultural identity in the housing sphere, identified as “a climate of constructive assimilation impinging upon cultural rights.” This article will therefore highlight that a strengthened civil legal aid system is both essential for access to justice for Irish Travellers, and more broadly to disrupt the cycles of discrimination and assimilation they experience. Eviction Power and Travellers As identified by Christopher McCann in his review of the Traveller Legal Service, “[a] local authority wishing to evict a Traveller living on the roadside or an unofficial site has at its disposal no fewer than five separate legislative mechanisms to do so.” These mechanisms are incredibly broad, carrying with them “the risk of prosecution, of a caravan being towed and/or impounded, and all but one may be invoked on short or no notice, without prior or subsequent recourse to a court or other independent authority.” A particularly draconian element of this legislative framework is Section 24 of the Housing Act 2002, under which the “the mere presence of a caravan, on local authority land without explicit permission, constitutes an offence.” The Gardaí are empowered to direct an individual committing this offence to leave the land and remove any object belonging to them or under their control. An individual failing to comply with this direction is guilty of an offence and their property may be confiscated. In the case of Travellers, this object is generally their caravan, which can be regarded as fundamental to their dignity and identity as Travellers. This framework of eviction powers has been intensely criticised by international human rights bodies, with the European Committee of Social Rights finding a number of violations of Article 16 of the Revised European Social Charter regarding the employment of certain statutory provisions against Travellers. In describing the similar system of eviction powers in the United Kingdom, Justice Pettiti of the European Court of Human Rights identified the vicious cycle “whereby [unreasonable combinations] of eviction laws and housing legislation prevented Traveller families from living in certain areas” leading to the “deliberate superimposition and accumulation of administrative rules” making it “totally impossible” to pursue a Traveller way of life. It should be further considered that the national and international legal protections for Travellers against the arbitrary and extensive use of eviction powers have incredibly limited efficacy. Gerry Whyte, in his work ‘Social Inclusion and the Legal System,’ has noted that there are incredibly limited protections available for Travellers facing eviction in Ireland. For example, McDonald v Feely originally required that housing
