Judge rules statements on Traveller Ethnicity in Dail have no legal effect

By Ann O’Loughlin

The Statement of Recognition of Traveller Ethnicity made in the Dail last March by former Taoiseach Enda Kenny has no legal effect, a High Court judge has said.

Mr Justice Robert Eagar said a homeless Traveller family were not entitled to amend their case aimed at having Clare Councty Council house them after their previous home burnt down so as to include claims based on the statement of recognition of Traveller ethnicity.

When initially seeking leave for judicial review, the family could have advanced a claim based on grounds of ethnic bias contrary to Article 40.1 of the Constitution but did not and were now seeking to advance an "entirely different" case, he said.

He would not permit them advance such claims now, he ruled. He was also satisfied the statement of recognition of Traveller ethnicity they sought to rely on in their proposed amendments has no legal effect. It "clearly is not legislation but fact" and has no legal effect for the purpose of the case.

The case concerns David Mongans, his wife Margaret Lisa and their four children who are living in a caravan on the Kilrush Road in Ennis.

They say they have been homeless since their home at Knockanean, Tulla Road, Ennis, was burnt in 2015 and have lived at different locations in the Ennis area, including with relatives, and in a shed, before moving into the caravan.

They are on the Council’s housing list and, in their judicial review proceedings, claim the Council has failed in its obligations to house them.

They got leave in December 2016 for judicial review but in June 2017 sought an extension of time to amend their proceedings to make additional claims, particularly relying on the Statement for Recognition of the Traveller Community as an Ethnic Group, delivered to the Dail on March 1st 2017.

That statement further supports their housing application and particularly their opposition to an indemnity sought from them on March 1st 2017 by the Council, they claimed.

The Council denies any breach of its housing obligations and claims, arising from the “malicious” fire at the family’s former accommodation, it cannot provide insurance for any social housing provided to them unless they indemnify it against liability for any injury or damage caused by any future fire at any of its properties occupied by David Mongans.

Irish Public Bodies Insurance had advised, until further notice, any loss or damage caused by malicious fire is excluded from the Council’s social housing occupied by David Mongans, it says.

This is the only instance the Council has experienced of insurance being refused for social housing being occupied by a named individual, it also says.

The burnt house at Knockanean has bene refurbished and the family can return there if they provide the indemnity, it has also said.

In a sworn statement, Mr Mongans and his wife rejected as "baseless" and "outrageous in the extreme" any contention they knew or were involved in a fire that was started maliciously.

The family say it is impossible for them to provide an indemity and their solicitor had been advised no insurer would indemnify such a risk on the part of the Mongans in the context of what was alleged in the Council's correspondence. That correspondence, they allege, denies their dignity as human beings by treating them as inferior to others due to their ethnic background.

They sought to amend their judicial review to include claims the Council has acted in breach of their family and private life rights, and in breach of anti-discrimination and equal treatment provisions, of the Constitution, the European Convention on Human Rights and a European Council directive.

The Council objected, arguing the family were seeking to advance a totally different case from that for which they had secured leave.

Mr Justice Eagar said, while satisfied he could extend time for judicial review, he would not permit the amendments because they amounted to an "entirely different" case.


 

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