Ladies and gentlemen, distinguished guests, good morning.
It gives me great pleasure to address this very timely and important conference today, and I’d like to thank Noeleen Blackwell, the Public Interest Law Alliance and FLAC for the kind invitation.
I’d also like to welcome Mr Justice Albie Sachs, a man who has been an absolute inspiration in his life-long commitment to human rights and the principles of justice and equality for all.
The theme of this conference is “using the law to challenge injustice”.
The key words in that sentence, in my mind, are “using the law”.
In his book, “The Strange Alchemy of Life and Law”, Albie describes very elegantly how this was precisely what the ANC did to bring about the end of apartheid and set South Africa on a new constitutional path.
He writes:
“Far from the law constituting a barricade of injustice that had to be stormed and torn down for freedom to be achieved, it became a primary instrument for accomplishing peaceful revolution.”
In South Africa, Albie and his colleagues used the law to overcome a hated, tyrannical and seemingly indestructible system.
There can be no more exhilarating example of the law put to the greatest possible use to the benefit of a persecuted, marginalised and disadvantaged people.
Today, I’d like to talk about the crucial importance of public interest law, the vital work being undertaken by PILA, and what the Government is doing to ensure a fairer, more open and more transparent legal system – and society - in the best interest of all citizens.
A long-running conversation
In “Dreams from my Father”, one of the world’s more famous law professors, Barack Obama, acknowledges that the study of law can be “disappointing at times” and seem like “a sort of glorified accounting that serves to regulate the affairs of those who have power”.
But he argues that the law is, in fact, much more than that.
He says:
“The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.”
The law is not static, contrary to what some believe.
It constantly evolves, be it through legislative change by governments, through interpretation and rulings by judges, and through public demands for change.
So if indeed it represents a nation arguing with its conscience, it is essential that all sections of society have their voice heard in that argument.
But how do the vulnerable, the marginalised and the disadvantaged get heard?
As Michael O’Farrell of FLAC has previously pointed out, first they need to know about their rights, and then they need the organisations, structures and whatever professional legal advice is required to help them vindicate those rights.
That is why the work of PILA in promoting public interest law is so important.
PILA describes public interest law as “a way of using the law for the benefit of marginalised and disadvantaged people”, involving the use of litigation, law reform and legal education as tools of change.
Since PILA was launched just a few short years ago, it has undertaken a very significant programme of work to help increase equal access to justice.
PILA’s Pro Bono Referral Scheme is an excellent example.
The goal of the scheme is very simple – to match legal experts with the legal needs of NGOs, community groups and independent law centres who work with the marginalised and the disadvantaged.
Through this and other work, PILA is working with the legal profession to build a strong pro bono culture to help those most in need, the importance of which cannot be overstated.
For instance, PILA arranged training for Women’s Aid support workers who help victims of domestic violence to prepare for court.
On a pro-bono basis, barrister Eithne Reid O’Doherty presented a legal education session on court procedures and family law in relation to domestic violence.
Equality of access
This is all part of PILA’s work to remove the barriers preventing access to justice.
There are several elements to this very complex issue, but I would like to touch upon a couple here briefly – court structures and costs.
Firstly, the structure of the court system itself can present difficulties.
That is why the Government held a referendum last October to establish a Court of Appeal.
We believed the establishment of a Court of Appeal would be a crucial step in eliminating the backlog at the Supreme Court and providing more rapid access to justice.
But it was Chief Justice Susan Denham who put it best, writing ahead of the referendum that it was:
“in essence an invitation for us all as citizens to reimagine the constitutional framework of our courts system – to enable the superior courts to work better to guarantee access to justice for all – strong or weak; rich or poor; individual or institutional.”
The public saw fit to reimagine and approved the referendum to establish the Court of Appeal, something I very much welcome.
But of course, a fit-for-purpose court structure is just one element.
Before people ever seek justice through the courts, they will first generally need to access professional advice.
The question is whether people on low incomes, or from disadvantaged backgrounds, can truly afford to access legal services.
This is why the Department of Social Protection funds the Northside Community Law Centre – providing €350,000 last year.
This independent centre provides free information, advice, and in some cases representation, to individuals and groups in its community, who otherwise would not be able to gain access to legal services.
It also campaigns for law reform.
The provision of funding for such organisations is far from enough, however, even if the public finances were not constrained in what the State can do in this sphere.
On the wider issue of legal costs, they simply must come down.
This is why the Government is bringing forward the Legal Services Regulation Bill to provide for a new, improved and more transparent costs regime.
It will ensure a better balance between the interests of legal practitioners and their clients by setting down a series of “Legal Cost Principles”.
And legal practitioners, whether solicitor or barrister, will be obliged to provide more detailed information about legal costs from the outset of their dealings with clients.
While the bill has been the subject of considerable debate and examination – which is healthy - the most important thing, in my mind, is that the legislation achieves the critical objective of reducing costs.
Socioeconomic rights
The Government has also initiated a fundamental examination of the Constitution via the Constitutional Convention, which recently concluded its work.
The Convention comprised 66 members of the public selected at random, 33 parliamentarians from both north and south, and an independent chair.
It was tasked with examining a range of constitutional issues, and made a series of recommendations to Government.
Among others, these include reducing the vote age to 16, amending Article 41.2 on the role of women in the home, providing for same-sex marriage, and much more besides.
Most recently, members voted in favour of amending the Constitution to strengthen socioeconomic rights – such as housing, healthcare and social welfare rights.
I want to talk a little about this issue in the context of the financial crisis and the degree to which the State sought to protect the most vulnerable in society from its worst effects.
Socioeconomic rights are included in our Constitution, but in what might be termed a restrained way – a fact with which Albie is very familiar.
Most people in this room will know of the late Kader Asmal, Trinity law professor for almost three decades and co-founder of the Irish Anti-Apartheid Movement who returned to South Africa to become a minister in Nelson Mandela’s Government of National Unity, Reconstruction and Development.
What everyone may not realise, however, is that it was in Kader’s home in Dublin that he and Albie painstakingly drafted the ANC’s Bill of Rights in the 1980s, the precursor of the Bill of Rights that became a cornerstone of the subsequent South African constitution.
In determining whether to include socioeconomic rights, Albie and Kader looked for precedents elsewhere.
In the Irish Constitution, they found what they termed the “midway” position – that is, socioeconomic rights were included but were not made enforceable by the courts.
This midway position is, of course, contained in Article 45, which sets out “directive principles of social policy” – and decrees that the principles are intended for the “general guidance of the Oireachtas” rather than the courts.
The Article states:
“The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.”
Now, what the Constitutional Convention has recommended is that the level of protection for socioeconomic rights should be enhanced, making them amenable to supervision by the courts in certain circumstances.
This an incredibly complex issue which
the Government will - as with all of the Convention’s recommendations - consider in depth before responding.
But in the meantime, I would argue that it is a fallacy to suggest – as some have done – that the existing Constitutional position has no practical effect whatsoever.
Just consider the staggering extent of the economic crisis this country suffered, and the very striking degree to which social cohesion was nonetheless maintained.
Why was this the case?
I would argue it was because the Government – and the Oireachtas – were firmly guided by the principles of Article 45.
Despite being in an EU-IMF bailout programme, and despite having to reduce State expenditure to get the public finances in check, we maintained a massively strong social welfare safety net.
Research conducted by the Economic and Social Research Institute in tandem with my Department, and published last December, shows that about 87% of all households in Ireland receive social transfers.
Social transfers are payments such as Jobseekers’ payments, pensions, and Child Benefit.
We pay Child Benefit in respect of every child, we have a strong support system for those unfortunate enough to lose their job, and we have a State pension structure that has dramatically reduced pensioner poverty.
For all those reasons, Ireland’s system of social transfers is the most effective in the EU in reducing poverty and is far superior to that of the other countries most affected by the crisis.
The fact that we maintained this safety net throughout the worst financial crisis this country has ever seen is, I believe, one of the key reasons we are now emerging on the other side.
But I am not the only one who believes this.
In its “Society at a Glance 2014” report on Ireland, published earlier this month, the OECD said:
“Income losses in Ireland would have been far greater without a functioning and adequately resourced social protection system. Spending on unemployment benefits more than doubled and also increased markedly for other income support programmes. Much of this spending was targeted to the poor. In fact, despite big losses overall, relative poverty… did not increase.”
The OECD also said something else, namely that the “focus now needs to be on helping people get off benefits and back into work”.
And this is precisely what my Department is doing.
Since coming to office, I have focused on transforming the Department from a passive benefits provider to an active and engaged public employment service through a strategy which we call “Pathways to Work”.
The strategy is succeeding.
The number of people in work increased by 61,000 last year.
Unemployment has fallen from a crisis peak of 15.1% to 11.9% now.
That is still too high, and that is why I am absolutely determined to increase the pace of progress we are making.
Full employment must be the central target.
Because my conviction since entering politics has been that decent, secure and fairly-paid work is the strongest protection against poverty.
And arguably the best way for any government of vindicating people’s socioeconomic rights is by doing everything it can to ensure the availability of such decent, secure and fairly-paid work.
Conclusion
In conclusion, let me say that a combination of the best will of government, a pioneering constitution, and a reformed court structure would still be insufficient to ensure the complete vindication of people’s socioeconomic rights and true access for all to justice.
Every state, every constitution and every court is open to error and omission.
That is why it is absolutely crucial that organisations like PILA exist, and more than that, that they become a central and fundamental part of the system of justice.
When Albie Sachs published “The Strange Alchemy of Life and Law”, he wrote in the preface of his and his wife’s delight when their young son started asking the question: “Why?”
Using the law to challenge injustice is about continually asking that question: “Why?”
I wish you every success with today’s conference and with your future work.
Thank you.