News and Updates

Clare County Council v. McDonagh [2022]: Updates On The Recent Landmark Supreme Court Decision.

1 Feb 2022

The TEJP welcomes the Supreme Court’s landmark decision to overturn a High Court interlocutory injunction granted to Clare County Council, requiring a Traveller family to vacate lands they had been residing at for several years. 

 

In 2019, the High Court had granted the Council an interlocutory injunction requiring the McDonagh family to immediately vacate council-owned lands in Ennis, Co Clare. The injunction was upheld by the Court of Appeal in 2020. 

In a judgment released on the 31st January 2022, the Supreme Court rejected the lower Court's approach as flawed and has remitted the case back to the High Court. Mr Justice Hogan emphasised that when considered in the light of Article 8 of the European Convention on Human Rights and the constitutional protection afforded to the home, the lower Courts had not proportionally justified the removal of the caravans before allowing the injunction. 

 

Justice Hogan also acknowledged that:

 

The legal system has not found it altogether easy to accommodate the distinct cultural traditions of the travelling [sic] community – such as nomadism and living in large family groups – within its traditional ambit of protecting and enforcing property rights, enforcing laws restraining trespass and legislation designed to give effect to legitimate planning, zoning and environmental concerns.

 

This is a crucial decision as it confirms a number of key elements including that: 

  • The constitutional protection of the home extends to Travellers living on unauthorised sites, even if the judgment suggests that this right may be enforceable in a lesser way because of the lack of authorisation. 
  • This recognition occurs in a manner consistent with ECHR case law such as Winterstein and Others v. France. 
  • There is a need to ensure appropriate decision making in terms of exercising powers that impinge upon the right to a home, such as a proportionality review. 
  • There is recognition of Travellers as a vulnerable minority, placing a duty on the Courts to take into account their circumstances when faced with an application to have them effectively evicted from an unauthorised site. 

 

Our partners FLAC welcomed the decision and emphasised the importance of the Supreme Court’s findings. Mr Christopher McCann, Solicitor with the FLAC Traveller Legal Service stated that:

All too often Travellers are evicted from sites by local authorities whose responsibility it is to house them, without any alternative accommodation being offered, and without any assessment by a court of the impact of the eviction on the Travellers’ rights. In our view, this should prompt the Government to reconsider the other legislative mechanisms used to evict Travellers which have no requirement for the proportionality of an eviction order to be considered by a Court and which barely contain any procedural safeguards at all.

 

Eilis Barry, Chief Executive of FLAC also highlighted the crucial nature of the case:

 

The McDonagh judgment makes clear the importance of access to justice for Travellers. It is imperative that as part of the Government’s current review of civil legal aid, access to legal aid is broadened to encompass situations like this.

 

Overall, this case has extremely important implications, in terms of the future reviews of trespass law and the broader policy changes needed around Traveller accommodation policy, and the expansion of the definition of ‘home’ as is protected by the Constitution. Key here is the inference of a state obligation that is constitutionally enforceable, even if the enforceability is tempered by the unauthorised location of the site. This is certainly a step in the right direction. 

The TEJP extends congratulations to the McDonagh family, and the team representing them in this ground-breaking case! 

For more on this story contact:

If you are a Traveller in Cork and Kerry and have been discriminated against in the access of goods and services, please contact TEJP@ucc.ie

 

 

Sources:

https://www.flac.ie/news/2022/01/31/flac-welcomes-landmark-supreme-court-decision-conc/ 

https://twitter.com/flacireland/status/1488188220848455685

https://twitter.com/tejpucc/status/1488470484975038468

https://www.rte.ie/news/ireland/2022/0131/1276913-supreme-court-ihec/ 

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