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Moral argument for increased civil legal aid – Clarke

16 Sep 2019 / justice Print

'Moral argument' for civil legal aid boost– Clarke

Chief Justice Frank Clarke said this morning (16 September 2019) that the first step in access to justice has to be the outreach into the community that allows people to know about potential legal remedies for their problems.

Speaking at the launch of the Mercy Law Resource Centre annual report on homelessness for 2018, the chief justice said that such a committed, focused service, embedded in the community, is a vital first step in the provision of proper access to justice.

Legal approach

If there was a legal approach that might be of some advantage to solving problems, then people could learn about it through such community-focused organisations, the chief justice said.

The next step was proper advice and legal advocacy, with litigation as a last resort, he said.

Those who are engaged at the coalface of homelessness have a reservoir of information and knowledge that any government would be foolish to ignore, he said.


“Government … whether legislature or executive … would do well to listen to those who have the experience on the ground, and who can identify how improvements in the law can provide better solutions,” the chief justice said.

He added that, in the absence of an adequate supply of appropriate housing, the problem of homelessness would continue.

Legal expertise in non-lucrative areas was hard to develop, but such expertise should be shared, he suggested.

Focused groups have an important role to play outside of official legal aid, he said.

Compelling case

“There is, in my view, a compelling case for a very significant increase in Government legal aid services,” Chief Justice Clarke said.

Ireland’s legal aid spend was much smaller than comparable jurisdictions, he commented, which was a considerable saving to the Irish taxpayer.

The burden of costs in the Irish legal system was transferred to the parties, rather than the court, as in a civil law system.

“The moral of that story is that some of the money that is thereby saved should be earmarked for alleviating the financial burden that that system places on those who cannot afford to pay.”

He said that the economic argument backed up the moral argument that we needed a much stronger system of civil legal aid.

‘Income thresholds too low’

Income thresholds for civil legal aid are too low, the chief justice said, and many people on modest incomes could not afford litigation that they should be entitled to bring.

The scope of the areas covered by legal aid needed to be both considerably widened and deepened, he added.

The chief justice stated that dedicated focus groups, such as Mercy Law, were vital in offering services that would not be provided in any other way.

The Mercy Law Resource Centre was established in 2009 to provide free legal aid to vulnerable people affected by homelessness.

That year, it provided assistance to 270 people but, by 2018, that figure had risen to 1,381.

Legal recourse

The Mercy Order’s Sr Helena O’Donoghue told this morning’s gathering at the annual report launch that having recourse to legal help was usually a last resort for most people.

For those of no or little means, legal help was an “unknown unknown – too far off on the horizon to be accessible”, she said.

The purpose of Mercy Law was to redress that imbalance, she said, and the organisation was seeking to influence public policy in favour of those most marginalised, and those who had ‘fallen through the cracks’ in the current acute shortage of housing.


Sr Helen said that Mercy Law was marking its tenth birthday in a “sober and not a celebratory way”, as a result.

The launch heard that the housing crisis has a disproportionate impact on minority ethnic groups, which face greater barriers to accessing housing services.

IHREC has funded Mercy Law’s research into how the new public sector equality duty might be used as a tool to address the largely negative experiences of minority groups in accessing housing.


Managing solicitor Rebecca Keatinge said that long-term hotel stays can have a serious impact on family life for homeless families, and be very detrimental to children.

Since 2014, there has been a 400% increase in child homelessness, she said, with a total of 3,779 children affected.

Other jurisdictions have imposed a time limit on families in hotel accommodation and Keatinge said it was time that Ireland followed suit.

“Strategic litigation in individual cases has limitations, and our domestic legal framework does not allow for class actions,” she said.

“That is why we have explored innovative, alternative legal remedies to raise well-evidenced concerns about the damage to children attributable to their placement in inappropriate emergency accommodation,” she said.

Collective complaint

Mercy Law Resource Centre is currently drafting a collective complaint under the European Social Charter to being the Government to task on its failure to meet the needs of homeless children.

Chief Justice Frank Clarke said that he had been educated on Cork Street in Dublin 8, home of Mercy Law, and his father grew up in the Liberties, so he knew the area well.

Mercy Law is supported by pro bono work by corporate partners Mason Hayes & Curran and A&L Goodbody.

A&L Goodbody developed a housing law clinic at the Focus Ireland offices in Temple Bar, Dublin 2, attended by 225 clients, who received advice on a range of complex housing and homelessness issues throughout 2018.

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