Advancing human rights and equality
through public interest litigation

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Ciaran Moynagh's speech to The PILS Project Conference

PILS Project – Panel Contribution 06-06-2018

INTRODUCTION

I am a solicitor in private practice and opened my firm McLernon Moynagh in 2010. With no clients I had an opportunity to meet many people and attend community and rights events. It quickly became apparent that there was a gap between the legal community and the community sector, especially the LGBTQ community.

It should be noted from the outset that no legislation promoting / protecting LGBTQ persons has ever been enacted by the Northern Ireland Assembly. We got civil partnerships in 2005 as we were again in a period of direct rule, and Michelle O’Neil did overturn the ban of blood donation for men who had sex with men when she came into office after lengthy court proceedings but today we have no sexual orientation strategy, calls for conscience clauses, no regulation of school and a lack of policy on homophobic and transphobic bullying.  

INVOLVEMENT WITH PILS

In my practice, strong cases were coming in the door but given the potential clients modest income they were not eligible for legal aid. With little time and small profit margins in a legal aid practice very often these clients were sent on their way as solicitors could not afford to take on work for free and should not be expected to. Even if we are to take it on, the risk to cost exposure was too great and the clients were scared. The PILS Project have bridged the gap for these types of applicants and many cases now get to Court that never would have seen the light of day!

SAME SEX MARRIAGE

A clear example is the case of Petition X. A committed same sex couple entered into a marriage in England and wanted it recognised in NI. They live here, they run a business here, they want to have children and the thought of taking on the Department of Finance, the Attorney General for NI and the Government office for Equalities in England was too much of a risk. At the High Court the PILS Project provided limited funds for solicitor, junior and senior fees after pro bono hours were at a significant level and clear complexity and social impact had been demonstrated.

The case was unsuccessful at the High Court and is it now before the Court of Appeal with judgment awaited. Again, the risk of cost exposure was the key decision on whether an appeal could be lodged and with the assistance of PILS providing an indemnity that protects the couple against any costs should they be unsuccessful it proceeded. A Protective Cost Agreement was agreed between the parties capping costs at the Court of Appeal and I think the PILS Project have been at the forefront of educating the legal profession in NI and promoting the use of PCA AND PCO’s as to ensure their own finite budget. It is something the Courts are quite sympatric of also. This important and strategic case is very likely to go to the Supreme Court and precedents will be set from it.

NOT ONLY BIG CASES

As lawyers we can never underestimate the barrier to litigate costs have.  Another recent case that is in the process of settling relates to access to fertility treatment for female same sex attracted couples on the NHS. PILs covered the County Court civil bill fee of £185 and provided an indemnity for the county court scale fees. This allowed the couple to issue proceedings. Once issued the relevant authorities implemented the National Institute for Health and Care Excellence (NICE) guidelines operating everywhere else in the UK and that made provision for treatment of same sex couples. I am now aware of 4 couples with fertility difficulties receiving treatment and securing their opportunity to form a family.

SEX WORK CASE STUDY

Very often strategic litigation is testing the unknown, it is a first, it makes people nervous, it’s harder for lawyers to comment on the merits. The Legal Service Agency typically do not like these type of cases, they don’t fit into the standard matrix and are expensive. Sometimes Applicants can be eligible for legal aid, but the case is deemed to have no prospects of success.

 In 2017 I was instructed by Antonette Cosgrave a sex worker who was claiming the criminalisation of those who paid for sex put her in greater danger and the law was not convention compliant. This was a test case as it was the first-time legislation (Lord Morrow’s Bill) brought about in NI Assembly was challenged as it was outside the legislative competence of the Assembly. 

Legal aid was not granted and PILS rose to the occasion and granted a fixed amount to get the case prepared and progressed to leave stage. Leave was granted, actually conceded by the Dept of Justice but opposed by OFMDFM and a successful legal aid application followed to allow Ant to carry on her fight. By way of side note, Ant passed away earlier this year and the case could not be progressed. This case was going to have Europe-wide impact as many countries are looking at sex work legislation. Whilst this case did not continue Ant did invaluable work, the case got international attention and the swell in action has continued and I am regularly invited to speak and give insight arising from this cause. Also, on this front, I must say strategic litigation is unique, you don’t simply get a client, you get a community, become a solider in the cause and are involuntarily thrown into a world you know nothing about but learn quickly and get life experiences! It was an honour to meet, know and work with Ant.

BENEFIT TO THE FIRM

The ethos of strategic litigation together with the networks being developed and fostered by the PILS project has enabled my firm to engage with many fellow practitioners, academics and stakeholders who are central to this process and I would not have typically encountered. It is a more collaborative approach to working compared to the usual competitive mentality of get a case and keep a case and that is a much nicer environment. It has given me the opportunity to develop a caseload on equality cases. As it is often the case once you do one another one comes in the door and that has been true for me.

MORE THAN JUST LITIGATION

Unfortunately for the Lawyers in the room there is more to strategic litigation than just litigation. This unique and powerful vehicle for change is demanding and all potential must be exhausted from the process.

You often only get one good run at an issue, so we must ensure that our applicant is the best applicant instead of who is simply available.

We have to engage with the voluntary and community sector. These people are very often the experts, they have been working on the issue for years they hold a wealth of knowledge and will save you a lot of time. The ethos of sharing has to be gripped with both hands, interventions should be welcomed and even sought when you think you have an important case.

When one spots a good case and you have relationships with voluntary and community sector organisations engage with them consider written interventions. They can very much assist the Court but they also demonstrate good corporate responsibility, accelerate a case much quicker than lobbying or calling for reform and can generate further work for you.

My work with organisations leads to greater understanding of social issues and you can become a catalyst for them to more actively pursue involvement in litigation that is important to their issue.

A blueprint to assist may come from the Love Equality Campaign. They have a 3-strand approach to winning civil marriage equality for Northern Ireland; 1. Hearts and minds: engagement and information sharing to engage and inform society 2. Government: they talk to politicians, draft what a private member bill would be, get support in the Assembly and now work at Westminster and Europe 3. Legal: the 2 court cases to bring about change if politicians wont. As we know a judgment is often only the start of enacting visible change, so a multi-strategy approach is essential for social impact.

There are drawbacks to this type of litigation and it is usually for the Applicant. It places a huge burden on them especially when named. It can become all about their particular factual circumstances or they feel it is on them to get it over the line in an adversarial system that often polarises arguments. We need individuals to obtain victim status that engages the ECHR rights. A way we overcome it is with the use of the community and voluntary groups.  In petition X, we have the Rainbow Project supporting the case. They professionalise the argument, they generalise the facts and with that more people can engage and relate without the focus on a particular applicant. Other would say the anonymity continues the perceived stigma and the media will not engage, it is a hard line to tread.

MEDIA

Do not ignore the media, they are our friends in this context. Pre and post every hearing you should be issuing understandable, straight forward press releases so that maximum pick up by the media is achieved and societal debate is ignited.  Have lawyers available for comment, do an explainer or briefing and get your community / voluntary teed up to handle the brunt of the work.

Do not be fooled, the reality is that law can be dry, a 3-day hearing on whether parliamentary sovereignty or what a European judgment actually means to us here is not interesting and it will not be picked up! You have to make it accessible and human.

NO GOVERNMENT

I consider in many other jurisdictions we see social change come about and then the law follows suit. In stark contrast, in NI it is often the legal cases initiates public discourse. This is a unique opportunity for us.

Whilst we have no effective administration in Northern Ireland it appears that public interest litigation will remain the only resort instead of the last resort to deal with inequality and constitutional issues.

Courts need to accept that they are the guardians and experts on discrimination / inequality and the reality of our governmental structure or lack thereof must be taken into consideration.

I will continue to and ask you all to begin or continue to foster relationships, engage with campaigns and make it clear that the Courts are accessible to all.

Thank you.

Ciaran Moynagh