O’Reilly v Limerick Corporation  ILRM 181
Claim for a mandatory order against the local housing authority to provide adequately serviced halting sites for members of the Traveller community, asserting that failing to do so violated its statutory duties under Section 56 of the Housing Act of 1966. The case also involves a claim for damages against the State for violating the constitutional rights of members of the Traveller community by allowing them to live in conditions without basic necessities.
The plaintiffs in this case were members of the Irish Travelling community, traditionally a nomadic people. This particular group of Travellers lived on an unofficial halting or caravan, site in Limerick City for over eight years, in conditions of extreme deprivation and squalor, without running water, toilet facilities, domestic refuse storage and collection, and hard surfaces for their caravans. The plaintiffs sought: (i) a mandatory order directing the local housing authority (Limerick Corporation) to provide them with adequate, serviced halting sites under the Housing Act, 1966 and (ii) compensation from the State for suffering, inconvenience and mental distress arising from breach of their constitutional rights. To support this last claim, the plaintiffs asserted that the right “to be provided with a certain minimum standard of basic material conditions to foster or protect his dignity and freedom as a human person” was one of the unenumerated personal rights under Article 40.3 of the Constitution.
The High Court rejected the plaintiffs’ claim that they were entitled to an order for the provision of serviced sites, stating that there was no constitutional right to a certain minimum standard of living. However the Court did direct the housing authority to review their building plan and include proposals for the provision of serviced sites to the Traveller community.
A positive outcome of the case was that the Court directed the local council to review its housing and building program. Section 13 of the Housing Act 1988 was subsequently enacted which specifically addressed the accommodation needs of Travellers. In a series of later cases, starting with University of Limerick v. Ryan (High Court, unreported, 21 February 1991), the Irish courts recognized that in appropriate circumstances this provision would impose a duty on local authorities to provide halting sites. [Email interview with Dr. David Fennelly, Assistant Professor, Trinity College Dublin School of Law, July 2015]
While there has been an increase in the number of Traveller families living in local authority halting sites between 1973 and 2002, Whyte comments that “there is no evidence that the Ryan judgment had any dramatic impact on these figures” and its potency “would appear to be dissipated when the issue moves from the judicial into the political arena”: Whyte, Social Inclusion and the Legal System: Public Interest Law in Ireland (2nd ed., Institute of Public Administration, 2015), 362-363. [Interview with Dr. David Fennelly, Assistant Professor, Trinity College Dublin School of Law, July 2015]
The true significance of this case was the presiding judge, Justice Costello’s determination that the plaintiffs’ claim for damages was in effect a claim that individuals were entitled to certain material resources from the State as of right, and that the courts were a wholly inappropriate forum within which to advance such claims. Justice Costello, drawing on the Aristotelian distinction between commutative and distributive justice, held that the latter was properly within the remit of the elected branches of government, and that it would be contrary to the constitutionally mandated separation of powers for the courts to adjudicate on, in effect, such socio-economic rights claims. This judgment of Justice Costello was relied on heavily by the Irish Supreme Court in the subsequent cases of Sinnott v Minister for Education and T.D. v Minister for Education, in which the court, for all intents and purposes, foreclosed the Irish courts playing a meaningful role in the protection and enforcement of socio-economic rights. However, subsequent judgments suggest that the Supreme Court may not have entirely shut the door on the recognition of certain economic and social rights in exceptional circumstances.
(Updated August 2015)