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Tuesday 15 October 2019

Minister to probe claims State sought gagging clauses before settling cases

Probe: Justice Minister Charlie Flanagan said he would be concerned if gagging clauses were being insisted upon as a matter of policy. Photo: Steve Humphreys
Probe: Justice Minister Charlie Flanagan said he would be concerned if gagging clauses were being insisted upon as a matter of policy. Photo: Steve Humphreys
Shane Phelan

Shane Phelan

A Cabinet minister is to examine claims a number of State bodies are insisting on confidentiality clauses before they will settle lawsuits.

Justice Minister Charlie Flanagan said that while there may be good reasons for confidentiality in some cases, he would be concerned if gagging clauses were being insisted upon as a matter of policy.

His comments came after a legal advice charity highlighted the issue and questioned how the use of such clauses could be in the public interest.

In its annual report, Free Legal Advice Centres (FLAC) said it was involved in a number of cases in 2018 where public bodies agreed to settle cases against them, but only on the basis that both the terms and the fact of the settlement were confidential.

This led to a situation where neither FLAC nor the persons they represented were able to discuss the outcome of a case, even to say it had concluded.

The legal advice charity tends to only get involved in litigation where the public interest is at stake, with much of its efforts in recent times focussed on cases relating to housing or homelessness, citizenship and various types of discrimination.

Speaking at the launch of FLAC's annual report in Dublin yesterday, Mr Flanagan said he noted the concerns raised by the legal advice charity.

"In some cases there may be good reasons for confidentiality. It may be acceptable as an intermittent practice but as a regular way of doing things it seems less than satisfactory," Mr Flanagan said.

"I intend to engage with FLAC and evaluate their information because I do believe that imposing a pattern of confidentiality clauses or using them as a matter of policy or strategy would be concerning."

The minister said good governance was the foundation for organisations to grow and prosper. He said he would engage with the legal charity on what the Government might need to do to ensure State bodies act in accordance with what might be regarded as best practice.

FLAC CEO Eilis Barry welcomed Mr Flanagan's commitment to examine the issue.

She said she believed the insistence on absolute confidentiality to be "unusual".

"FLAC was involved in a number of cases in 2018 where a State body settled a claim on terms favourable to our client, but only on the basis that the terms of the settlement and the fact of the settlement are confidential," said Ms Barry.

"So we cannot tell our legal colleagues that the case they saw us start in court has now settled.

"We cannot tell other people who may have similar cases that a case settled.

"We fail to see how the absolute strict nature of this confidentiality is necessary or could possibly be in the public interest. These clauses effectively inhibit discussion of allegations of wrongdoing by the State."

Meanwhile, Ms Barry echoed recent comments by Chief Justice Frank Clarke who said there were economic and moral arguments for the system of civil legal aid to be "broadened and deepened" amid growing demands for legal assistance in the area of housing and homelessness.

Ms Barry called for a "root-and-branch" review of the civil legal aid system.

"We believe the legal aid should be resourced so it can deal with all kinds of cases, including housing, social welfare and discrimination cases," she said.

Ms Barry said the civil legal aid system was also being hindered by long delays in assisting clients. She pointed to recent figures which showed waiting times of 61 weeks in Finglas, 33 weeks in Tralee, six months at Pope's Quay in Cork and 22 weeks in Dundalk for a first appointment with a legal-aid solicitor.

Irish Independent

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