‘Justice is too often retrospective’, European Ombudsman tells FLAC lecture

In her address in the Rotunda Hospital last night, Ms O’Reilly decried the disjuncture between the Irish sense of justice and parity, and the actual state of the law and society.

She suggested there is a linguistic hint at this disparity in the difference between the English and Gaeilge translations of “the Department of Justice and Equality”: Roinn Dlíagus Cirtagus Comhionannais distinguishes the concept of law (Dlí) from that of justice (Cirt); perhaps a distinction that hints at Irish society’s thoughts on the matter.

“It strikes me that while the law can be administered fairly rapidly, justice frequently operates on time delay,” she said, taking aim at the governments of Ireland, Britain and the EU for dealing with major societal injustices only when they become “historic issues”. This, in effect, means many of the worst human rights abuses in our society are only dealt with once many of the persons affected have died.

She added: “As an aside, I continue to find it remarkable that not a single man – not a single father of the children of the Magdalenes ever as much as ironed a handkerchief in ‘atonement’ or spent a single day, dressed in penitent clothes, deprived of his autonomy and freedom.”

“Not a single father of the children of the Magdalenes ever as much as ironed a handkerchief in ‘atonement’ or spent a single day, dressed in penitent clothes, deprived of his autonomy and freedom”

Ms O’Reilly continued: “Justice is too often retrospective… Only after 45 years did a British Prime Minister issue an apology for Bloody Sunday … Only now that many of the women of the Magdalene Laundries rest in graves inscribed with names that the nuns made up for them have they been issued an apology.”

Rather than meeting the interests of justice in retrospect, Ombudsman O’Reilly argued that there are a plethora of measures that governments can take in order to see justice done in real time.

Echoing Peter Ward SC’s earlier calls for equality of legal access, Ms O’Reilly said that free legal advice for all persons impacted by our legal system would be a simple step to ensuring that justice “does not become to reserve of the wealthy and powerful”.

“While the law can act with rapidity, justice often acts on a time delay”

On this note, she pointed to the huge expense now involved in litigation as a barrier to justice, as only the wealthiest parties can afford the cost of fighting a court battle. This means the rights of many persons are flouted as they do not have the resources to mount a defence.

She spoke of a cynical move to litigation used by the National Asset Management Agency against her old office as Environment Ombudsman.

When Ms O’Reilly correctly found NAMA to be a public authority, and therefore bound to release information it held on environmental matters, NAMA’s directors launched a costly legal case that made it all the way to the Supreme Court, despite the point of law being quite straightforward. She maintains that NAMA did this to try and use its significant financial resources to quash a challenge from a public regulator, rather than simply comply with the Ombudsman’s findings.

Opening access to the top jobs in the legal profession to those young people without the financial resources to undertake years of unpaid internships is key to ensuring that the judiciary looks like and is accepted by all members of Irish society, added Ms O’Reilly.

She cited a recent case in which she found unpaid internships within top EU institutions to amount to discrimination against candidates on economic grounds. The only bar to the best jobs in our society should be the merits of the candidate, not the financial resources or powerful connections of certain individuals, she said.

Finally, she spoke of the importance of the role of the Ombudsman in ensuring that justice is achieved in real-time. It is the Ombudsman’s role to investigate public authorities and address complaints in real-time to ensure that they are complying with legal principles.

She pointed to work by French and Greek ombudsmen to address ongoing failings in refugee camps in Calais and the Greek Islands as evidence of the impact ombudsmen can have on human rights violations as they are taking place, rather than after the fact.

Ms O’Reilly subsequently sat for questions from the audience, ranging from questions about Brexit and the Good Friday Agreement, to whether the Irish government will extend the mandate of the Office of the Ombudsman to cover two areas that were notably absent from its original mandate; asylum/migration and the prison service.

Kevin Burns, Irish Legal News