Strengthening Traveller Rights through Civil Legal Aid Reform by Hugh Gallagher [Page

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

authorities “offer reasonable alternative accommodation to Travellers before taking steps to evict them from unauthorised sites.” However, this principle has been subject to extensive legislative inroading and, in the case of Section 24 of the 2002 Act, complete circumvention. Darren O’Donovan similarly discussed the potential for the European Convention on Human Rights, specifically the obligation to facilitate a Traveller way of life located under Article 8, to act as a more robust condition on the use of eviction powers. Regrettably this has not manifested in practice, with the recent decision of Clare County Council v McDonagh illustrating somewhat cursory judicial engagement with this protection. Therein the court weighed heavily the bare offer of alternative accommodation within their proportionality analysis, rather than engagement with the adequacy and appropriateness thereof.

Eviction Proceedings and Civil Legal Aid

Section 28(9)(a)(ii) of the Civil Legal Aid Act 1995 provides that legal aid shall not be granted in “disputes concerning rights and interests over land.” Resultantly, there is a presumptive prohibition against granting civil legal aid for cases concerning housing or evictions. This disproportionately negatively impacts Travellers affected by the afore-discussed eviction mechanisms. This was explicitly referenced by FLAC in its evidence to the Joint Oireachtas Committee on Key Issues Affecting the Traveller Community. They stated that

“[T]he 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 [n]or 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 has been further substantiated by the UN Committee on the Elimination of Racial Discrimination (UNCERD), who detailed their “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.”

Without adequate legal advice or representation, Travellers are regularly confronted with “complex legal processes against well-funded and represented opponents” which “are [generally] concluded without [the] vulnerable party being effectively heard and having their rights asserted,” as Christopher McMahon has observed. An apparent result from this dynamic is that state authorities may be taking advantage of Travellers’ vulnerability, arising from inadequate access to justice, to make extensive use of its ample eviction powers. In one example detailed by Christopher McCann, a Traveller mother of four was facing proceedings from a semistate body which sought to have her “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.” However, with the intervention of FLAC and provision of representation the case was ultimately settled before trial. This illustrates that beyond the defence of Travellers within the courts, the provision of civil legal aid could operate strategically; levelling the playing field and motivating the party seeking the eviction of Travellers to compromise or halt the brute eviction measures which often infringe on Travellers’ rights.

The role that adequate legal representation and support can play in eviction proceedings against Travellers is evident, and consequently the injustice wrought by its continued exclusion under civil legal aid is apparent.

Reform and Rhetoric

Originally, Ireland’s policy position regarding Travellers actively pursued their assimilation into the population, their structured elimination as a distinct people which Robbie McVeigh, researcher and activist, considered consistent with genocide. This has since shifted towards the formal embracing of Travellers’ cultural

rights and minority status, evidenced recently in their symbolic recognition as an ethnic minority by Enda Kenny who promised that the state “[recognises] the inequalities and discrimination that the Traveller community faces.” However, the new formal objectives of state policy have not altered its consequences and assimilation remains its current primary outcome. Úna Crowley, within her extensive research on the objects of state policy concerning Travellers, has described the evolution as the transition from forced Traveller settlement towards rewarding Travellers for conformity with sedentary norms. Therefore, there is flagrant hypocrisy on the part of the Irish state for spouting rhetoric recognising the plight of Irish Travellers while entrenching the structures which directly harm them.

An immediate step that ought to close this deficit between political rhetoric and meaningful action is through reforming civil legal aid to address the legal needs of Travellers. This article has highlighted the interplay between the extensive eviction powers regularly deployed against Travellers and the current inadequacies in our legal aid scheme in providing effective support for those seeking to challenge them. The consequences of this perpetuate the vulnerability of Travellers in a manner directly conducive to their assimilation. If the state is truly committed to furthering the interests of Travellers, then prioritising their access to justice is necessary. Civil legal aid has the potential to strengthen the rights of Travellers, but this can only be achieved if the upcoming review effectively engages with their lived realities and advocacy of organisations such as FLAC.