Ballyfermot Traveller Action Project: Discrimination and Access to Sanitation

The issue

In 2015, Sallyann Berry, who was pregnant, and her young family were without adequate sanitation facilities for 6 months due to delay by Dublin City Council (DCC). Mrs Berry is a member of the Traveller community resident at Labre Park, Ballyfermot.

A fire in late January 2015 destroyed the sanitation unit adjacent to their mobile accommodation. On reporting the damage to DCC, Mrs Berry was refused maintenance services due to an alleged previous ‘incident’ of anti-social behaviour by other persons on site.

What PILA did

Ballyfermot Traveller Action Project (BTAP) brought to case to PILA, which facilitated pro bono representation by Kevin Brophy Solicitors.

The result

Mrs Berry took her complaint to the Workplace Relations Commission, claiming that DCC failed, refused or neglected to provide a maintenance service, thereby directly discriminating against her under the Traveller status ground of Section 3 and contrary to Section 5 of the Equal Status Acts in relation to access to a service.

The WRC found that the delay in providing proper access to a sanitation unit was discriminatory against the complainant and would not have occurred in similar circumstances for a person from the settled community.

“This is a very important decision for the Traveller community. All too often an entire community, whether it be Labre Park or another Traveller-specific accommodation area, is discriminated against by local authorities and other agencies as blanket policies are implemented without regard to individual need,” according to Lorraine McMahon, BTAP Coordinator.

Blind Legal Alliance: Right to a Secret Ballot

The issue

According to the 2011 Census, there are almost 53,000 people in the Republic of Ireland with a severe visual impairment – with approximately 52,000 being above the age of 18. This figure is set to rise significantly as average life-expectancy increases. Despite recent advances in technology that have revolutionised how people with visual impairment interact with the world, many inequalities persist.

In 2011, Robbie Sinnott – who suffers from severe visual impairment – founded the Blind Legal Alliance, with its first action to campaign for the right to secret ballot in elections and referenda. Currently if a person with a visual impairment wishes to vote, they must do so through a ‘trusted friend’ or the presiding officer.

After pursuing complaints to a number of public bodies, Robbie came to PILA looking to challenge the State’s failure to put in place mechanisms to enable him to vote in secret.

What PILA did

PILA sought a legal opinion from Michael Lynn SC on the legal basis for challenging the current method of voting.  The opinion found that Ireland is currently in breach of its obligations to the EU under the Convention on the Rights of People with Disabilities, and the time was opportune to challenge current procedures in advance of the European elections in May 2014. PILA then approached Eversheds Solicitors to come on board on a pro bono basis.

The result

Robbie took his case to the High Court in a bid to assert the constitutional right of all visually impaired people to participate fully in democratic decision making processes. The case initially yielded a positive result in November 2016, when the State introduced regulations to provide for template voting in referenda for persons with a visual impairment.

After nine days in the High Court, the case succeeded in March 2017 in securing a declaration that the State had a duty to put a mechanism in place to facilitate visually impaired persons to vote in secret. The case provided clarity to public bodies on their obligations to enact regulations and to engage with interested members of the public. It also established that there is an onus on public bodies to identitfy the rationale where a particular ‘duty’ cannot be vindicated for economic or practical reasons.

Robbie’s legal team at Eversheds Sutherland won the ‘Excellence in the Marketplace’ at the Chambers Ireland Corporate Social Responsibility Awards 2017 for their work on the case.

International Commission of Jurists: Amicus Curiae

The issue

In her fight for gender recognition, Dr. Lydia Foy instituted three separate proceedings before the Irish courts, the last (Foy No. 3) being to require the State to act on the High Court’s decision in Foy v  An t-Ard Chlaraitheoir & ors [2007] IEHC 470 which found the Irish Government in breach of Article 8 of the European Convention on Human Rights (ECHR).

The International Commission of Jurists (ICJ) sought to intervene as amicus curiae in Foy No. 3 as part of its remit to ensure that international law – especially human rights and humanitarian law – is utilised effectively for protection, particularly for the most vulnerable, and is implemented through effective national and international procedures. The ICJ hoped to assist the High Court in the determination of certain points of law relating to the right to an effective national remedy under Article 13 of the ECHR.

What PILA did

PILA obtained pro bono legal assistance in bringing together the amicus curiae intervention from KOD Lyon’s Elizabeth Mitrow and Grainne Gilmore BL.

The result

The ICJ was successful in the amicus intervention; one of the first occasions an international NGO has been admitted as amicus in Ireland.  The ICJ’s submissions addressed, among other things, the requirement that a domestic remedy be effective in law and practice. Namely, that a remedy must be accessible and enable the enforcement of the substance of the rights at stake; and that the national authority before which recourse is had must be capable of granting an appropriate relief, and offer reasonable prospects of success.

Ultimately Foy No. 3 was settled following the publication and introduction of Draft Heads of Bill in the Oireachtas, and the commencement of parliamentary debate on the Gender Recognition Bill. The intervention, however, showed the importance of the case to the rights of transgender people, as well as to the effectiveness of the Irish ECHR Act 2003. The decision also clarified the criteria to be met by other bodies seeking to intervene as amicus curiae in other cases.