Sharon Keogan on civil society litigation and socio-economic law
Sharon Keogan argued for allowing civil society organisations to bring equality cases to relieve individuals and to address systemic discrimination, while proposing a broad socio-economic status definition that courts would apply case by case. She defended safeguards such as legitimate-interest tests, charitable status criteria and treating accent, address and education as indicators rather than standalone grounds.
Civil society litigation across Europe
Allowing civil society organisations, including trade unions, to take cases on behalf in the public interest or on behalf of their members is described as standard across the European Union. Keogan noted Ireland is one of only seven countries that does not permit any form of civil society or trade union litigation and highlighted an existing provision that allows the Irish Human Rights and Equality Commission to bring cases when discrimination is generally practised.
Rationale for third-party standing
The primary purpose of enabling third-party litigation is to alleviate the enforcement burden on vulnerable individuals - examples cited include people in direct provision, residents of care homes for older people, and young children in schools - and to expose systemic practices rather than single incidents. Keogan argued that some people will not litigate even with anonymity, and collective action can reveal patterns of disadvantage.
Defining socio-economic status
Keogan supported a broad definition of socio-economic status that lists indicators such as accent, address and level of education, but stressed these are indicators rather than independent grounds of discrimination. She explained the proposal requires claimants to show membership in a socially or geographically identifiable disadvantaged group and that membership is not merely temporary, allowing courts to perform situation-specific analysis.
Safeguards, legitimacy and the role of courts
On democratic legitimacy, Keogan pointed to EU rules that require organisations to show a legitimate interest and said jurisdictions use different metrics - for example charitable status or aims in an organisation's articles - to prevent opportunistic claims. She emphasised that case law will be important to set standards, that legislation is a first step, and that public policy measures must follow to encourage a culture of compliance.
Submission and precedent
Keogan referenced a proposed definition on page 38 of her submission, which was used in a 2021 private members' bill, as the basis for the suggested socio-economic ground. She said courts and legal witnesses will help refine how broad definitions operate in practice as precedents accumulate.
We publish thousands of recordings to make Irish politics transparent and resistant to manipulation. Spotted an error? Report it — together we are building a reliable archive of Irish politics.
So this is for Judy. So you argued that the burden of enforcing equality law should not rest on individuals and that civil society organisations should be empowered to take cases on their behalf. But doesn't this risk turning the legal process into a tool for activist litigation, potentially disconnected from the actual experience or wishes of those affected? How do you ensure democratic legitimacy and accountability in such a model? Allowing civil society organisations, including trade unions, to take cases on behalf in the public interest or on behalf of perhaps their members is standard, basically, across the European Union. So Ireland is one of only seven countries that doesn't permit any form of civil society or trade union litigation. And in fact, we already have a provision in our law that enables the Irish Human Rights and Equality Commission to take cases where it believes that discrimination is being generally practised against persons. So we already recognise that this should be part of the toolbox. And the rationale behind it, whenever it's introduced, is to, as I said, alleviate the burden placed on individuals who may be extremely vulnerable, for example. So if you're living in direct provision, or a care home for older people, or if you're a young kid in school, right, should you be expected to litigate, right? I would say there are very good reasons why particularly vulnerable people don't want to litigate, even if they were granted anonymity. And so how that power has been used, where it's available across the European Union, and indeed outside the European Union, is to draw attention, is to alleviate that burden on individuals, but also to draw attention to systemic issues. So it may be, look, that individual in that care home experienced this, or this person with a disability, but we have evidence, right, from our research, from our membership, that these practices are in fact occurring regularly. It didn't just happen to them, it's actually baked into how, yeah. And so it enables you to have a broader sort of glance at the issue that may be arising. In terms of democratic legitimacy question, I think how that has been dealt with across different countries has been quite different. So the general rule under European Union law is that the organisation must have a legitimate interest in pursuing the case, which is quite a light standard, obviously. And then in different countries, they have established different metrics for demonstrating that you have a legitimate interest. So clearly, you may not want to open it up to absolutely anybody to say, I've just invented an NGO yesterday, and I want to take a case. You may want to say, you must be a charitable organisation, the goal of advancing equality and anti-discrimination must be in your article of association, etc. So different methods have been used across European Union to deal with that issue. Thank you very much. On the 10th line, you proposed a definition of social economic status that includes factors like accent, address and education level. But given that the broad and sometimes subjective nature of these indicators, how do you ensure that this doesn't create legal uncertainty or open a door to overly expansive claims that are difficult to adjudicate fairly? For instance, the case of education level, this is often sometimes a requirement for a particular role. So many jobs require a certain education level or accents. We have hundreds of accents in this country. So can you answer that? Thank you. Yes. So hopefully with support with some of our legal witnesses as well, I think that allowing the ground to be specifically defined and having that broad definition is absolutely necessary to protect people. But also you need to allow for situation specific analysis, you know, for allowing the legal courts to define and to see their cases. That's how things are determined and how case law is built over time. I think having that definition is important and the other grounds within our equality legislation can also be seen as quite broad. But however, you know, our legal courts have been able to work within the definitions, you know, to tease out where discrimination is actually in place or not. In the case of accents, I think, you know, it's absolutely quite clear where some certain accents from certain areas, particularly, you know, inner city Dublin, I think we can all witness that, that people are treated extremely differently. So I think allowing the courts to really have that situation-specific analysis is very important, as is the case with other other grounds. Yes, okay. I might just add to that the definition, and it's on page 38 of our submission, which was used in the 2021 private members' bill, we think is quite strong, and things like accent address level of education. So those are indicators within the definition, but they're not grounds of discrimination of themselves. So it's not a one person has an accent, one has and does not. It's to indicate that you belong to a socially or geographical identifiable group that suffers from disadvantage, and not only that you need to prove you belong to such a group by reference to those indicators, you also need to show that, you know, your inclusion in that group is other than on a temporary basis. Okay, I see that in your submission here now. Just, you've taken great care in aligning your recommendations to international best practices, which I commend you, but I have to ask, have you researched the outcomes of other European countries? For example, in France or Britain the socio-economic background protections have not significantly reduced educational or employment disparities? Yes, I think with us there are several cases, thankfully, that are building up over time, and case law is really important to set the standards and where a culture of compliance will come about. Of course, legislation is the first step. I think public policy measures need to come in. I think it will be a few years before we actually see the impact of those legislation. Public policy measures like actual enforcement of our road map to social inclusion commitments, commitments to poverty reduction targets, those are actually the things that will make a huge difference, as well as legislation that is underpinning the need for socio-economic status anti-discrimination measures. Right, okay. I don't think I have time for the last question. But look, I have to leave now. I have to go to another meeting. But thank you so much. I will be listening to all the other contributions here this afternoon. But thank you so much for coming in this afternoon, this morning. Thank you. Thank you, Senator.
Thank you for downloading 🙏
If you publish this material on social media, we would be very grateful if you tagged VideoParliament. It helps us reach more people and keep building a transparent archive of Irish politics.
