Tuesday 15 October 2019

State bodies 'insisting on confidentiality clauses' before they'll settle cases

Moves to hide outcome of claims criticised by Free Legal Aid Centres

Legal aid: FLAC takes on cases where an issue of public interest is at stake or a wider group of people can potentially benefit. Photo: Stock photo
Legal aid: FLAC takes on cases where an issue of public interest is at stake or a wider group of people can potentially benefit. Photo: Stock photo
Shane Phelan

Shane Phelan

A number of State bodies have sought to conceal the fact they settled lawsuits by insisting on confidentiality clauses.

The clauses not only covered the terms of the settlements but also the fact the settlements were made.

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The worrying development was revealed by a legal advice charity, which has questioned how the use of such clauses can be in the public interest.

According to the annual report of Free Legal Advice Centres (FLAC), published today, the issue arose in a number of cases it was involved in during 2018.

The precise nature of the cases could not be revealed due to the confidentiality agreements.

However, High Court records show FLAC has acted in a number of matters involving local authorities and Government departments in recent years.

‘Oppressive’: Eilis Barry of FLAC said the practice was unnecessary
‘Oppressive’: Eilis Barry of FLAC said the practice was unnecessary

FLAC takes on cases where an issue of public interest is at stake and where the outcome has the potential to benefit not just the individual client but also a wider group of people.

Around a third of its cases relate to housing, homelessness and landlord and tenancy issues, while it has also taken cases relating to citizenship and various forms of discrimination in recent times.

In its report, FLAC said settlement terms being insisted upon by some State bodies meant clients and their legal advisers were not able to reveal the fact proceedings had been settled, even though it was already in the public domain that a case had been taken.

It said strict confidentiality clauses prevent legitimate discussion of an action or inaction by the State and make it more difficult for other victims to obtain supporting evidence for similar complaints.

In the cases referred to by FLAC, the State bodies settled in favour of the persons who took the actions, but only on the basis that both the terms and the fact of the settlements were kept confidential.

"These clauses effectively act to inhibit discussion of allegations of wrongdoing by the State and we fail to see how such clauses can be in the public interest," the report said.

FLAC CEO Eilis Barry described the practice as "slightly oppressive and unnecessary".

She said the cases FLAC was involved in did not involve huge commercial sensitivity or similar issues.

"If we bring a case where we are alleging illegality in some form but there is no information about the outcome of the case, that would suggest there is no change in practice or policy," she said. The report also raised concerns about the vetting by gardaí of applicants for social housing.

The law allows for the exchange of information between gardaí and local authorities. Councils can refuse or defer an allocation of housing where a member of a household has engaged in anti-social behaviour.

FLAC criticised the legislation governing this as "vague and imprecise" and also raised concerns about certain disclosures made by gardaí.

It cited one case where judicial review proceedings were taken over a council's refusal to assess a family as homeless.

FLAC said information provided by gardaí to the local authority was "inaccurate and largely based on hearsay".

The case was ultimately settled with the family being assessed as homeless by the council.

In another case, the report said gardaí expressed concern about a Traveller woman who had been offered housing for her and her children.

This occurred after local residents told gardaí the family had a bad reputation. Following the Garda intervention, the offer of housing was rescinded without explanation.

According to the report, the woman had a common surname in the Traveller community, but was not part of the family with the bad reputation.

The report said email exchanges between gardaí and council officials were without any statutory basis as the woman had no history of criminality or anti-social behaviour.

Irish Independent

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