Ireland in Breach in Practice and in Legislation of Traveller's Housing, Accommodation and Eviction Rights
The European Committee of Social Rights has found Ireland to be in breachin practice and in legislation of Traveller's housing, accommodation and eviction rights.
The European Committee of Social Rights in a first ever Traveller Collective Complaint has found the Irish government to be in violation of Article 16 of the European Social Charter on 5 grounds including on the grounds of insufficient provision of accommodation for Travellers and concluding that many Traveller sites are in inadequate condition.
European Social Charter
As Ireland is not a signatory to the part of the European Social Charter that allows national NGOs to take a collective complaint, the Irish Traveller Movement Independent Law Centre with the assistance of the European Roma Rights Centre, took a Complaint to the European Committee of Social Rights against the Irish government (lodged April 2013) for failure to comply with principles of the Charter with respect to accommodation for Travellers.
The assessment of Ministers to the European Committee of Social Rights examining the Collective Complaint also concluded that Ireland had violated Article 16 of the Charter in current legislation and practice where Travellers are threatened with evictions which were without the necessary safeguards.
In order to satisfy Article 16 countries like Ireland who have signed up to the European Social Charter must promote the provision of an adequate supply of housing for families, take the needs of families into account in housing policies and ensure that existing housing be of an adequate standard and include essential services (such as heating and electricity). The Committee in its report stated that a not insignificant number of sites are in poor condition, lack maintenance and are badly located. The Committee recalled the obligations stemming from Article 16 of the Charter regarding the right of families to housing as it applies to nomadic or semi nomadic groups such as Travellers. In response it referred to concerns raised in the complaint and not disputed by the Irish Government that despite legalisation in place there was a not insubstantial shortfall of transient sites across the country and of the 1,000 transient bays identified as needed in the 1995 Task Force Report only 54 are in existence and not all functioning as proper transient sites.
In order to comply with conditions of the Charter in relation to evictions (1), legal protection for persons threatened with eviction must be in place. The Committee noted there was insufficient and unreasonable grounds for evictions affecting Travellers specifically it cited insufficient legislation which allows eviction notice of not less than 24 hours’ notice . Specifically referencing Section 19 of the Criminal Justice (Public Order) Act 1994 (as amended) as it fails to provide for prior consultation, adequate or any prior notice, nor any limits as to when evictions may take place and no requirement to provide proposals for alternative accommodation and further finds that the legislation does not justify the lack of safeguards for those in occupation and who are likely to be in need of genuine accommodation.
The committee also found that there is no legal aid for those threatened with eviction and that while Travellers may seek pro bono legal advice and representation from the Irish Traveller Movement Law Centre this is not sufficient and that the remedy of judicial review in the absence of legal aid is also not sufficiently accessible.
According to Bernard Joyce Director of the Irish Traveller Movement:
“Since the complaint was lodged in 2013 the Irish Traveller Movement Independent Law Centre has closed due to lack of funding. The centre provided a much needed specialist and dedicated legal service for Travellers which despite a legislative framework to protect Travellers’ rights in certain areas, including for Traveller specific accommodation, in many instances legislation is ineffective, insubstantial nor lacks enforcement. In its absence access to remedies for Travellers encountering racism and discrimination and access to a home will be severely diminished. Given the violations found under the Charter, we call for the Government and newly appointed Minister for the Environment to amend the current legislation related to evictions of Travellers, evidenced recently in families affected in Dundalk and Galway. We also call for the mode of delivery of Traveller accommodation to be reviewed and provide powers to the NTACC to give direction to any local authority who does not achieve it targets. 17 years and four National Traveller Accommodation Programmes later an independent National Traveller Accommodation Agency is vital to provide real results to deliver Traveller Accommodation, in light of these findings the time to put that right is now”
European Roma Rights Centre
The European Roma Rights Centre complained that in the absence of a central register of evictions the Government cannot prove that Travellers facing eviction are in practice consulted, given reasonable notice or offered alternative accommodation. Data collected by the Irish Traveller Movement of their national network of members in 2015 of issues most frequently requiring support and advice related to:
- housing applications refused
- problems in accessing private rented sector
- overcrowded accommodation
- lack of management on halting sites
- lack of Traveller Specific accommodation
- transfers and homelessness
Of these member groups 10 out of 26 counties sought support on eviction matters, the highest was recorded in Dublin followed by Wexford. The committee welcomed the suggestion of a central register of evictions being brought forward by the Government under the national overseeing body the National Traveller Accommodation Consultative Committee.
Responding to the findings to ERRC President Đorđe Jovanović:
“I am particularly concerned about the lack of safeguards for those facing evictions in Ireland”, “Right across Europe, we have legally contested forced evictions of Roma and Travellers, and twice in the last month succeeded in getting the European Court of Human Rights to invoke emergency measures to halt evictions in Romania and Italy. Forced evictions are often discriminatory measures creating new forms of hardship for those evicted, and exacerbating a pattern of human rights violations. In the case of Ireland, the ECSR noted there is a failure to provide for prior consultation, prior notice, no winter moratorium, and no requirement to provide adequate alternative accommodation. I am especially concerned that there is no legal aid for those facing eviction. The remedy of judicial review in the absence of legal aid is no remedy at all. I would call on the Irish state to ensure that all those facing eviction have full access to free legal aid. “
The committee also noted that complaints were made that certain halting sites were far from shops and amenities. Major problems included lack of water, insufficient hot water and drainage, poor or no refuse collection, and problems with flooding and sewage. Damp and water ingress were reported to be a constant problem.
Situation of Travellers
The situation of Travellers in the republic at the end of 2015 showed 534 families- 89 up on last year- were living in unauthorised halting sites. There was an increase of 135 families estimated to be sharing accommodation accounting for 862 families, bringing the total number of people sharing accommodation in overcrowded conditions and in unauthorised sites with limited or no access to sanitary and other facilities to over 5,584 people, as a low average.
National Traveller organisations and the Irish Traveller Movement have continuously raised concerns to successive Ministers and Governments that the National Accommodation Act 1998 which mandates all Local Authorities to deliver Traveller Accommodation Programmes to meet the accommodation needs of the Traveller Community in their areas is not working and there is crisis in Traveller accommodation. Adequate and timely delivery has failed with some families on waiting lists for 10 years or more for Traveller specific accommodation and with ongoing and worrying increases in families sharing facilities with others. In the 5-year period from 2009 -2013, only 9 city or county councils fulfilled their targets for delivery of accommodation to families in need and the remaining 25 councils had significant shortfalls.
Copies of the full decision, a summary of the decision and some unofficial background notes are available here.
(1) B. Assessment of the Committee
135. The Committee recalls that illegal occupation of a site or dwelling may justify the eviction of the illegal occupants. However the criteria of illegal occupation must not be unduly wide (European Roma Rights Centre v. Greece complaint No 15/2003 decision on the merits of 8 December 2004, § 51).
136. The Committee recalls its well established case law, most recently set out in Medecins du Monde-International v. France, Complaint No.67/2011, Decision on the merits of 11 September 2012, § 75, where it stated that in order to comply with the Charter, legal protection for persons threatened with eviction must be prescribed by law and include:
an obligation to consult the affected parties in order to find alternative solutions to eviction; - an obligation to fix a reasonable notice period before eviction; - a prohibition to carry out evictions at night or during winter; - access to legal remedies; - access to legal aid; - compensation in case of illegal evictions.
137. Furthermore, when evictions do take place, they must be: - carried out under conditions respecting the dignity of the persons concerned; - governed by rules sufficiently protective of the rights of the persons; - accompanied by proposals for alternative accommodation 138. The Committee refers in this respect to judgments of the European Court of Human Rights in cases such as Connors v. The United Kingdom, judgment of 27 May 2004, where the Court stated “The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.”
Conclusions European Committee on Social Rights.
The Committee concludes:
- Unanimously that there is a violation of Article 16 of the Charter on the grounds of insufficient provision of accommodation for Travellers;
- Unanimously that there is a violation of Article 16 of the Charter on the grounds many Traveller sites are in an inadequate condition;
- Unanimously that there is a violation of Article 16 of the Charter on the grounds that the Criminal Justice (Public Order) Act 1994 (as amended) provides for inadequate safeguards for Travellers threatened with eviction;
- Unanimously that there is a violation of Article 16 of the Charter on the grounds that the Housing (Miscellaneous Provisions) Act 1992 (as amended) provides for inadequate safeguards for Travellers threatened with eviction;
- Unanimously that there is a violation of Article 16 of the Charter on the grounds that evictions are carried out in practice without the necessary safeguards
Background Collective Complaint and Charter
1. What is the European Social Charter?
The European Social Charter is a regional human rights treaty protecting economic, social and cultural rights. It was drafted by the Council of Europe. It is a complement to the European Convention on Human Rights which protects civil and political rights (which may be described as the rights that are essential to a democracy like freedom of expression, freedom from torture, the right to privacy).
2. What are economic, social and cultural rights?
These rights include education, housing and health. The difference between economic, social and cultural rights and civil and political rights is that civil and political rights such as a right to a fair trial and the right to freedom of expression are recognised in the Constitution as rights that can be litigated therefore you can take the Irish government to an Irish court if your civil and political rights are not protected. Economic, social and cultural rights (such as the right to health) are also recognised by the Constitution but are difficult to enforce through the Irish courts as our Constitution says that these rights “are intended for the general guidance of the Oireachtas… exclusively, and shall not be cognisable by any Court”. (This means that if the government interferes with your right to health it is more difficult to take your case to an Irish court but if they interfere with your right to a fair trial it is easier to take your case to court.
3. What is the Council of Europe?
The Council of Europe is separate to the European Union. It is a political organisation, founded in 1949, to defend the principles of democracy, human rights and the rule of law. Its members are European countries and at the moment it has 47 members. Ireland is one of them. The European Social Charter and European Convention on Human Rights come under the Council of Europe.
4. What is Ireland’s connection to the European Social Charter?
The European Social Charter (ESC) was adopted in 1961 and revised in 1996. On 4th November 2000 Ireland adopted 92 of the 98 paragraphs of the new Charter. Amongst the rights they failed to sign up to was the rights to housing under Article 31. However, it has signed up to Article 16 which guarantees the protection of the family as the fundamental unit in society including the right to family housing.
5. How is the European Social Charter enforced against governments?
The Charter is monitored by the European Committee of Social Rights. The Irish government reports to the Committee every few years on how it is respecting the rights laid down in the Charter. If Irish citizens are unhappy with the Irish government and believe it is not delivering on its promises under the Charter they may take a “Collective Complaint”.
6. What is a “Collective Complaint?”
Ireland has also signed up to the Collective Complaints Procedure. This allows international NGOs (non-governmental organisations) to take cases on behalf of a collective group to the European Committee of Social Rights.
7. Have there been any other “Collective Complaints” against Ireland? There have not been any cases in relation to Travellers. However, there have been five cases against other Ireland and where violations were found in three of those.
Subject: Corporal punishment of children: Association for the Protection of All Children (APPROACH) Ltd. v. Ireland, Complaint No. 93/2013, (Decision December 2014)
Finding: Violation of article 17.1
Subject: Protection of child victims of trafficking: Federation of Catholic Family Associations in Europe (FAFCE) v. Ireland, Complaint No. 89/2013, (Decision: 12 September 2014)
Finding: No violation
Subject: Trade union rights of police representative associations: European Confederation of Police (EuroCOP) v. Ireland, Complaint No. 83/2012 (Decision: December 2013)
Findings: Violations on 6 grounds of Article 5 of the Charter.
Subject: Discrimination against persons who are in receipt of Irish Contributory Old Age Pension and who do not reside permanently in Ireland, in the Free Travel scheme when they return to Ireland on a visit: International Federation of Human Rights Leagues (FIDH) v. Ireland, Collective Complaint No. 42/2007 (Decision, June 2008) Finding: no violation
Subject: Corporal punishment: World Organisation against Torture (OMCT) v. Ireland, Collective Complaint No. 18/2003. Decision: December 2004.
Finding: violation of article 17
8. Who can take a complaint?
Only international NGOs (non-governmental organisations) with participatory status can take a case. Ireland has not signed up to the part of the Charter that allows national NGOs to take a collective complaint).
9. What is the European Roma Rights Centre?
The European Roma Rights Centre (ERRC) based in Budapest, Hungary is an international public interest law organisation working to combat anti-Romani racism and human rights abuse of Roma and Travellers through strategic litigation, research and policy development, advocacy and human rights education.
10. Has the European Roma Rights Centre ever taken a case like this before?
The European Roma Rights Centre has taken two successful cases against the Greek and Bulgarian governments for their failure to protect the rights of Roma living in their countries..
11. What happens once a “violation” is found?
The Committee of Ministers may then make a recommendation that the Irish government address the problem.
12. Are decision of the Committee of Social Rights binding on Ireland?
The political pressure and publicity may be an incentive for the government to legislative for or make policy changes, depending on the violations found and the political administration in place. Ireland’s examination under the Charter is contrary to its place on the Committee.