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Legal

Oireachtas Committee on Travellers


A group of Senators and TDs interested in Traveller issues will shortly meet to discuss the Traveller Law Reform Bill and issues affacting Travellers. The group is led by Finian McGrath, TD.




Shadow Report for the United Nations Committee on Economic, Social and Cultural Rights


The Law Centre has been selected as the partner organisation working with Amnesty International on this shadow report. It will focus on health and housing. The report should be ready before the end of 2010.




Shadow Report for the United Nations Committee on the Elimination of Racial Discrimination


The Law Centre is on the NGO Alliane Against Racism Steering Group, which is drafting a shadow report for the CERD Committee. A public consultation will take place in April and the report should be ready before the end of 2010.

The ITM Shadow Report and Commentary on the First National Report by Ireland to the UN CERD Committee can be downloaded as  a PDF here




Travellers as an Ethnic Minority (Human Rights in Ireland Article)


This article was originally published on Human Rights in Ireland on April 13th 2010

Guest Post: Siobhan Cummiskey on:

Travellers as an Ethnic Minority

We are delighted to welcome this guest post from Siobhan Cummiskey, managing solicitor of the Irish Traveller Movement Independent Law Centre. You can find out more about Siobhan on the Guest  Contributors page.

Travellers have once again been both literally and figuratively sidelined by the Irish government upon being consigned to the Appendix of Ireland’s State Report to CERD (Convention on the Elimination of All Forms of Discrimination) in their combined 3rd and 4th report to the CERD Committee submitted in December 2009. The consignment of Travellers to a mere Appendix of a state report on racism is a most overt method of affirming the policy-endorsed position that Travellers are social dropouts, failed settled people and an economically deprived social group, as opposed to an ethnic minority.

The Irish government reiterated its tired mantra on the recognition of Travellers as an ethnic minority in their 2009 state report:

"The exact basis for this claim is unclear. The Irish Government’s view is that Travellers do not constitute a distinct group from the population as a whole in terms of race, colour, descent or ethnic origin."1

Our neighbour, the jurisdiction of England and Wales, has recognized Irish Travellers as an ethnic minority through the courts2 and Northern Ireland expressly includes Irish Travellers in their equality legislation under the definition of an ethnic minority3. Our own Equality Acts 2000-2004 fail to include Travellers as an ethnic minority and instead list them as a separate group to whom protection will be provided in that particular legal instrument. The Irish government maintains in their 2009 report to CERD that equality legislation that fails to define Travellers as an ethnic minority but instead singles them out as a separate group worthy of protection, "does not provide a lesser level of protection to Travellers compared to that afforded to members of ethnic minorities. On the contrary, the specific identification of Travellers in equality legislation guarantees that they are explicitly protected."

However, we would suggest that this is in fact positively misguided. As the jurisdictions of England and Wales and Northern Ireland have recognized Irish Travellers as an ethnic minority it is very likely this protection will carry forward into any later legislation produced by their governments regarding ethnic minorities. However, the Irish government continues to cherry pick where Travellers are protected. For instance, Travellers are protected by the Prohibition of Incitement to Discrimination Act 1989 but are not included in the remit of the Office of the Minister for Integration and were not mentioned in the Minister’s speech at the recent launch of the European Week Against Racism. If legislation was introduced tomorrow recognizing hate crimes in Ireland, Travellers may not be included.

In the County Court case of O’Leary v Allied Domecq, unreported 29 August 2000 Judge Goldstein and two assessors sat for six days listening to expert evidence about the ethnicity of Travellers. They applied the criteria laid down in the House of Lords case of Mandla v Dowell Lee to Irish Travellers. They held that Travellers met the two essential conditions laid down in that case, in relation to number 1 ("a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive") the court held that a history that could be traced back to at least the middle of the 19th century was sufficient to fulfil the Mandla test, and in relation to number 2 ("a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance") they found that Travellers were plainly nomadic, even if some of them were now "settled", they preferred to be self-employed and had certain traditional occupations, some of them still practised match-making and they tended to marry within their own community, they had certain taboos about pollution and, though overwhelmingly Catholic, they had a particular attachment to pilgrimages and rituals.

Even this overt recognition across the water failed to move the Irish government. In fact, the then Minister for Justice, Equality and Law Reform mentioned at a session of the Oireachtas Sub-Committee on Human Rights on 11 March 2004 that the UK courts’ and government’s recognition extends only to Irish Travellers, suggesting that the key factor might be their Irish origin. In fact, the Court in the O’Leary case went some way to counteract that point by noting that one of the pubs which had refused entry to the Travellers in that case was itself patronised by "settled" Irish people so that the discrimination complained about was not based on the complainants’ Irishness. In fact, the Court noted that if it had been based on the complainants' Irish origins, it would have been a straightforward issue of discrimination on grounds of nationality or race.

Motion 20 passed at the Green Party Convention last month recognized the potential problems caused by this unharmonious rights recognition between the two jurisdictions: "GP/CG calls on Irish Government to recognise Travellers as an ethnic group in line with legislation in UK and NI.  Referencing the Belfast and St Andrews agreements of duality of recognition of rights accorded to citizens of two jurisdictions."

It must be noted at this stage that all of this is despite the fact that the CERD Committee (and other human rights instruments) has made clear that the concept of ethnicity is based on self-recognition not state recognition.4

While the recognition of the ethnicity of Travellers is not a panacea, it is certainly a way of rooting the protection of Traveller culture in something more concrete than political whim. Oran Doyle in his book on Equality has suggested that if Travellers take a position as an ethnic minority they are more likely to fall within the protection of the equality guarantee in the Constitution.

The consequences of a failure by the state to recognize the distinct ethnicity of Travellers is a series of laws targeting and criminalizing what should be defined as Traveller culture: nomadism is ever decreasing since the criminalisation of trespass under Irish law in 2002, the Control of Horses Act 1996 disproportionately affects the Traveller horse trade and, despite the fact that the High Court has long established the right of Travellers to choose halting site accommodation as part of their culture,5 the 2008 annual report of the National Traveller Accommodation Consultative Committee notes that the numbers of Travellers accommodated on halting sites has decreased year on year since 20036, as homeless Travellers are actively encouraged by government bodies not to put halting site accommodation as a preference on their housing applications as new sites will not be built.

Traveller culture will not be destroyed by a massive trauma but by a thousand cuts: the flick of the pen when a new bill attacking Traveller culture is signed into law and through insidious practices such as those surrounding the provision of accommodation. We lament the treatment of indigenous minorities by the majority government far from home, but unless we start taking real steps, such as that of the recognition of Travellers as an ethnic minority, one day all we will have is a Traveller museum and nothing but our inertia to blame.


1 www.integration.ie/website/omi/omiwebv6.nsf/page/AXBN-7ZLJ9Z13515711-en/$File/CombinedThirdandFourthReporttotheUNCERDCommitteelatest.pdf

2 O’Leary v Allied Domecq, unreported 29 August 2000

3 Article 5(2)(a) of the Race Relations (Northern Ireland) Order 1997 says: “In this Order, ‘racial grounds’ … includes the grounds of belonging to the Irish Traveller community

4 CERD General Recommendation VIII para 1.

5 The University of Limerick -v- Ryan, O’Reilly, John McCarthy, McCarthy, Limerick Co Co High Court 1991

6 www.environ.ie/en/Publications/DevelopmentandHousing/Housing/FileDownLoad,21840,en.pdf Page 13




A Collective Complaint by Travellers to the European Committee of Social Rights


A Collective Complaint by Travellers to the European Committee of Social Rights

The Law Centre is working with the European Roma Rights Centre and the Centre on Housing Rights and Evictions in preparing a Collective Complaint to the European Committee of Social Rights against the Irish government for failing to live up to its promises under the European Social Charter by failing to deliver proper accommodation to Traveller families. Some frequently asked questions on the Collective Complaint are answered below.


FAQs:

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. What rights under the European Social Charter is the Irish government not respecting in relation to Travellers?

Article 16 (family housing), Article 30 (poverty and social exclusion), E (non-discrimination), Articles 15, 17, 23 (respect for the disabled, children and the elderly).


6. 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".


7. 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. This complaint will be by Travellers against the Irish government for the way they have been treated in terms of lack of adequate family housing, lack of access to services, lack of infrastructure (eg: water, electricity) and evictions. In relation to Labre Park it will focus particularly on the failure of the Government to deliver on its promises in relation to redevelopment. In relation to Spring Hill it will focus on the right to health and uninhabitable living conditions.


8. Have there been any other “Collective Complaints” against Ireland?

There have been two Collective Complaints against Ireland. The first was on the issue of corporal punishment of children taken by the World Organisation Against Torture in 2003 resulting in the finding of a violation and the adoption of a Resolution by the Committee of Ministers. The second was about those on Irish pensions living outside the country availing of free travel. It was taken by the International Federation of Human Rights in 2007. No violation was found but the government eventually changes its policy. There have not been any cases in relation to Travellers.


9. Who can take a complaint?

In the case of Ireland 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 (such as ITM) to take a collective complaint).


10. What is an NGO?

An NGO is a non governmental organisation that lobbies the government for change in a particular area. For example Amnesty International lobbies for human rights and the European Roma Rights Centre lobbies for Roma and Traveller rights.


11. Who are the European Roma Rights Centre (ERRC) and Centre on Housing Rights and Evictions (COHRE)?

The European Roma Rights Centre is an international public interest law organisation based in Budapest, Hungary. It is aimed at combating discrimination and human rights abuses against Roma and other Travellers groups (eg: Sinti and Irish Travellers). It is one of the organisations permitted to take a collective complaint to the European Committee of Social Rights.

COHRE is a Geneva-based, international non-governmental human rights organisation founded in 1994. It campaigns for the protection of housing rights and the prevention of forced evictions. COHRE's mission is to ensure the full enjoyment of the human right to adequate housing for everyone, everywhere.


12. 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.  .


13. What happens after we submit the complaint?

After the complaint is submitted it will be reviewed by the European Committee of Social Rights. If they are satisfied that it may be admitted to be considered by them they will declare it "admissible". Once this happens they will read all the information we have submitted to them about the treatment of Travellers by the Irish government.


14. Will the Irish government have to do anything?

The European Committee of Social Rights will contact the Irish government and ask them to explain why they have failed to provide accommodation for Travellers. If they do not have good reasons the Committee will declare that there has been a "violation".


15. What happens once a "violation" is found?

The Committee of Ministers may then make a recommendation that the Irish government address the problem.


16. What is the Committee of Ministers?

The Committee of Ministers is a political body made up of the Minister for Foreign Affairs for each country.


17. Will this change the situation facing Travellers?

It may do. It will lead to political pressure and public humiliation for the Irish government and will therefore be an effective lobbying tool. It will also mean that someone has listened to the difficulties facing Travellers and acknowledged that the government is at fault and that its treatment of Travellers is wrong and not up to European standards and that they are in breach of their international obligations.


18. Will we receive compensation?

No. Only a small amount of money is usually awarded and this is awarded directly to the international NGO to pay for the cost of taking the case.


19. Will the Irish government be forced by the European Committee of Social Rights to make changes?

No. This is a political matter and the European body cannot force the Irish government to do something it does not want to do. However, the political pressure and publicity may make the government want to make changes.


20. Why would we take a complaint to Europe?

The Irish government have been ignoring the complaints by Travellers for many years and it is time to go over their head to another body that may listen.


21. Is this complaint on behalf of one group of Travellers or all Travellers?

This complaint is on behalf of all Travellers for systemic violations by the Irish government.


22. What will happen if no violation is found?

If no violation is found the European Committee of Social Rights will right a report saying there was "no violation". While we believe this is unlikely, it will still help to bring the matter to the attention of other European countries and may "embarrass" the Irish government into action.



23. What is my role?
This complaint will only be taken if Travellers want it to be taken. It will be the role of the Traveller groups to speak to and help ITM Law Centre in taking this complaint. This will involve regular meetings and the sharing of information about accommodation and redevelopment. If the complaint is successful it will be the role of the Traveller groups to share this information and use it to press for change.


24. Where can I go for further information?

Irish Traveller Movement
Independent Law Centre
4/5 Eustace Street
Dublin 2
www.itmtrav.ie
Tel: (01) 6796577