A Lost Cause? Asserting Public Housing Rights Under the European Convention on Human Rights Act 2003 by Sophie Treacy

A Lost Cause? Asserting Public Housing Rights Under the European Convention on Human Rights Act 2003

By Sophie Treacy, SS Law

In the case of O’Reilly v Limerick Corporation (1989), Costello J famously delivered a catastrophic blow to the prospect of socio-economic rights protection under the Irish Constitution. He limited the role of the Irish courts to corrective justice, as opposed to distributive justice, thereby cutting off countless jurisprudential avenues through which future litigants could assert positive socio-economic entitlements under the Constitution. It is no surprise, therefore, that when the European Convention on Human Rights Act 2003 was incorporated into domestic law, litigants attempted to use it as an alternative route to contend for socio-economic rights protection in accordance with the rights enshrined under the European Convention. Indeed, the 2003 Act has on several occasions been relied upon by members of the Travelling community in seeking to compel the State to provide them with adequate public housing. By and large, however, such litigation has been characterised by its disappointingly low success rate.

Almost every case to date that has been taken by members of the Travelling community to contend for an adequate level of public housing on foot of the European Convention has failed.

Time and time again, we see the Irish courts refuse to entertain a holistic, dignity-centered approach to interpreting the scope of Convention rights, favouring a circumscribed, strict approach of legislative deference instead.

The staunch reluctance of the Irish courts to veer into the realm of distributive justice has resulted in some very harsh rulings for members of the Travelling community. In Doherty v. South Dublin Co. Co., for instance, an elderly couple, who were living in a caravan with no running water or heating and were suffering from a number of ailments, contended that this was contrary to the Housing Acts (Ireland) 1966–2004 pursuant to Article 3 of the ECHR, which protects the right to be free from torture and inhuman or degrading treatment. The High Court emphasised that the provision of public housing and welfare is fundamentally a political issue and refused to intervene unless the applicants could demonstrate “a complete inability to exercise their human rights.” In this instance, the fact that the Council were offering apartment-style accommodation, which was manifestly incompatible with the nomadic cultural norms of Travellers, and intended to provide another caravan after 18 months, was enough to satisfy the Court that the applicants’ rights pursuant to the 2003 Act were not infringed. Subsequent attempts by the Travelling community to compel the State to provide adequate public housing were met with similar defeat.

From an international perspective, the Irish courts seem to have adopted a comparatively strict interpretative approach to how the ECHR might give rise to positive rights in the public housing context. In McDonagh v Kilkenny County Council, for instance, the Irish High Court ruled that the Council had not infringed the applicants’ right to respect for their private life and family home under Article 8 by compelling them to leave

occupied land because they had been inhabiting the land illegally. By contrast, in the decision of Winterstein v France, which involved a similar factual scenario, the ECHR adopted a more sympathetic position and ruled that evicting a Traveller family from the land that they had occupied for over thirty years was a disproportionate interference with their rights. This comparison casts a revealing light on how the Irish courts have actively chosen to narrowly construe the scope of Convention rights when members of the Travelling community attempt to rely on them in order to secure public housing.

The case of O’Donnell v. South Dublin Co. seemed to provide a glimmer of hope for the Travelling community in the context of establishing public housing rights under the 2003 Act. Herein, the Court finally ruled that because the applicant suffered from severe disabilities and had been living in appalling conditions, their rights under Article 8 of the ECHR were sufficiently infringed to justify entitlement to damages from the State. Unfortunately however, it appears that subsequent developments in Irish jurisprudence on the ECHR row back on even this small step forward for public housing rights pursuant to the 2003 Act. As Fennelly J commented in McD v L, the Irish courts are entitled to challenge “over-adventurous” interpretations of the Convention rights. There has also been a general trend emanating from the European Court of Human Rights itself that takes the view that public housing is essentially a political matter for the legislature to deal with.

Overall, the 2003 Act has had a very underwhelming effect on Irish human rights jurisprudence. The Court’s reluctance to engage in distributive justice in the Irish constitutional context has unfortunately spilled over into how it approaches European human rights issues. As the case law in this area illustrates, there has been extremely limited success for members of the Travelling community when it comes to asserting public housing rights under the 2003 Act. What is perhaps most disappointing of all is that the scope of the Convention in Ireland has been interpreted so narrowly that it is difficult to imagine any protection it affords that couldn’t be found to exist anyway through a purposive reading of the personal rights under the Irish constitution. The Convention is therefore not the alternative route to socio-economic rights protection that, in theory, it had the potential to be. Due to the overriding reluctance of the Irish courts to engage in issues of distributive justice, it seems that for the moment, contending for public housing rights under the 2003 Act is little more than a lost cause.

An Eternity in Tuam: The Injustice of the Mother and Baby Homes

By Hannah Hendry, JF Law

This story begins in Paris, France. In 1861, four sisters journeyed across the Channel to reach their destination: Dublin. Mother Fabian, Mother Hedwige, Sister Mary Luke, and Mary Gonzaga had been invited there by a certain Catherine O’Farrell. Together, they saw the first foundation of the Bon Secours Sisters outside of France.

Their mission of ‘Good Help’ and ‘Healing’ spread throughout the land whereupon, in 1885, it reached Tuam in Galway. In this town, from 1925 until 1961, the Bon Secours sisters operated the St Mary’s Mother and Baby Home. Nobody could have imagined the tragedies and cruelty this establishment would later embody.

What’s in a name

Owing to their French origin, ‘bon secours’ translates in English to “Good Help.” As a reflection of their name, their motto is ironically “Good Help to Those in Need.”

Ireland, during this time, was subject to profound influence by the Roman Catholic Church. A child being born out of wedlock was seen as a shameful and sinful act. A pregnant, unmarried woman was, at this time, a scandal. As a result of the support of the Church, these women and children were placed into the care of nuns in institutions such as the Bon Secours Mother and Baby Home. The church dictated the lives and decisions of many Irish families. Furthermore, many families were impoverished and lacked adequate education and support networks. In these merciless institutions, women and their children were treated to inhumane and barbaric conditions.

Tuam is derived from the Latin term tumulus, meaning burial mound. Retrospectively, this is an appropriate name for what, in time, was unearthed within this unsuspecting town. Tuam reached global news outlets in 2017, upon the revelation that “significant human remains” had been discovered in the grounds of the former home. These nameless bones were judged not for their potential but simply because they were born outside marriage. Catherine Corless, an Irish historian, identified that 796 infants had been buried in a septic tank in the Mother and Baby home in Tuam. The children were considered to have died of tuberculosis, convulsions, measles, whooping cough, influenza, bronchitis, and meningitis, among other illnesses. Corless was raised in this town, and holds memories of passing this home as a child. The unmarried women and their children within this place were scorned. They were seen as sinners and illegitimate spawn. These children were segregated from their respective communities and adopted the name ‘Home babies.’

Many of these mothers and their babies will remain without a name for another 30 years. Under this veil of mystery, no name will be left upon this world. Without a name, they have no identity. It is as if they never existed. Phantoms of the Tuam. This makes it easier for any wrongdoing to be ‘buried under the tank.’ This is one reason why the legislation that our President signed into law last year was so controversial. Ghosts shrouded in mystery to cast a mist of protection upon a corrupt regime.

Bill Signed into Law

In late 2020, President Michael D. Higgins signed the Commission of Investigation (Mother and Baby Homes and certain related Matters) Bill into law. This Bill conceals the records of the Commission from the public for 30 years. These records are deposited with the Minister for Children, or with the Child and Family Agency. Furthermore, it provides for the transfer of specified databases being examined by the commission to Tusla.

Former residents of these institutions will not be able to access their personal information. So far the President has never utilised the power conferred onto him by Article 26 of the Constitution, allowing him to refer, upon the advice of the Council of State, certain bills to the Supreme Court to confirm their constitutionality. Thus, it is no surprise that President Higgins also declined to use the power of Article 26 on this legislation. The President justified his reasoning of not using this power by stating that it would afford an opportunity to the public to challenge the Act in the courts. If a Bill is passed by the Supreme Court after consultation, it is then immune from further Constitutional challenges. This decision from the President could be seen as an attempt to negate responsibility and defer it to the public. President Higgins is empowered on behalf of the public to question these concerning matters where it would be difficult for an individual or community to amass support. Court cases are costly, stressful, and time consuming. It is submitted that the President neglected his role. Both the elected representatives in the Houses of Oireachtas, and the President disregarded the morality of their decisions.

Trauma

The aftermath of the trauma will remain in the minds of many of the survivors. Not only will they never learn the names of their mothers and fathers, but the cruelties that many had to endure will have long lasting effects on their lives.

Peter Mulryan, a survivor of such an institution, details his experiences of being raised in the home in Tuam. His life was subject to abuse, a lack of education, and segregation. At Mass, he was not allowed to be a server owing to the fact that his mother had not been married upon his birth. His mother, Delia, was treated as a “slave, washing floors, washing other babies and feeding them.” Her lack of options meant that even after serving her time within the Home, she had no other place to go and eventually ended up in the Magdalene laundries.

Magdalene Laundries

There is a correlation between these Homes and another type of now defunct institution that operated in Ireland: the Magdalene Laundries.

The Magdalene Laundries started as Protestant-run organisations in the UK as far back as the 18th century, although the remit at the time was less punitive than it would be later on in Ireland. Their purpose was to reform prostitutes, cure them of venereal diseases, teach them a trade, and propel them into decent society. That was the original model, as founded in the UK.

In Ireland, religious orders such as the Good Shepherd Sisters, decided to adopt that model and bring it to Ireland around the end of the 19th century, and began to open these institutions for “fallen women.” One could become a fallen woman by having a child out of wedlock, and thus at ‘moral risk,’ or by being raped. It was a punitive environment, much like the Mother and Baby Homes. It offered no solace to innocents and victims, but rather treated them as the offenders.

Children from the Mother and Baby Homes would be sold to American families, adopted, or trafficked. Women would often be inducted into these laundries. They would follow a life of servitude. A cruel and slave-like existence, in which freedom was not a consideration.

Additionally, it would be of importance to ascertain the resemblance between the Mother and Baby Homes, the Magdalene Laundries, and the facilities in place for asylum seekers in current times. There are compari-

sons to be made between the unmarried women of the Laundries, who were abandoned by society, and refugees’ isolation from society. If left unaddressed, history could repeat itself.

Access to justice denied

Many of these crimes are destined to be unsolved, with the perpetrators remaining anonymous, their deeds concealed, and without punishment.

This year, eight UN bodies wrote a letter to the Irish Government on the subject of the newly instated Mother and Baby Homes legislation. In this letter they expressed that they were “concerned that this proposed new legislation would, if adopted, negatively impact upon the rights to truth and justice of affected individuals, whose relatives may be buried in these sites.” The legislation fails to vindicate the survivor’s right to access personal data and records. Their access to justice is denied.

Finally, the unearthing of the atrocities that occurred within Ireland highlights the need to seek justice for these victims and ensure such horrors never occur again within Irish shores. The women, children, and survivors of these horrors deserve to know the truth, to find peace, to find justice. If the walls of the St Mary’s Mother and Baby Home could talk, what atrocities would it uncover? Only time and truth will tell.