. . . and they won. Occasionally litigation can be effective in protecting those the political system might prefer to ignore – this was one such case, writes CAROLINE MADDEN
What is your favourite case?
It’s hardly controversial to say that lawyers are not the most popular professionals. However, belying public distrust of the legal profession, popular culture in movies like To Kill a Mockingbird or Amistad sometimes portrays lawyers in a heroic role, successfully defending the underdog against more powerful opponents. Sadly, life does not always imitate art in this respect and not infrequently attempts to use litigation to defend the weak and vulnerable end in tears. Occasionally such litigation is successful, and my favourite case, Cotter and McDermott v Minister for Social Welfare (1987), is one such example.
What is the background to the case?
As a result of an EC directive adopted in 1978, the State was obliged to remove gender discrimination from certain social welfare payments by December 23rd, 1984. Given the patriarchal nature of the social welfare system at that time, this was a large task. Married women living with their husbands were not entitled to unemployment assistance and received lower rates of various social welfare payments than other claimants. Moreover, while a husband on welfare automatically got an increase in his payment in respect of his wife and children, a wife on welfare hardly ever qualified for such increases in respect of her husband and children.
Despite having six years in which to make the necessary reforms, Ireland failed to implement the directive in time, and even when the State eventually began to do so, the initial implementing measures contained a number of legal defects. First, even though the reforms should have been introduced by December 23rd, 1984, married women continued to receive lower basic rates of certain welfare payments than men (and in the case of unemployment benefit, for a shorter period of time) until May 1986. Second, their entitlement to adult and child dependency allowances remained more restricted than that of men until November 1986 and, moreover, they were excluded from a system of transitional payments introduced that month designed to cushion male claimants from the reduction in welfare income that followed from full implementation of the directive.
Two victims of this discrimination, Ann Cotter and Norah McDermott, decided to sue the State in early 1985 in order to secure proper implementation of the directive. In the first phase of their proceedings, they sought arrears of unemployment benefit dating back to December 23rd, 1984, to compensate them for the fact married women had received lower personal rates of unemployment benefit than men during that time.
What was the outcome of the case?
The issue was referred by the High Court to the European Court of Justice, which held that the married women could rely on the terms of the directive with effect from December 23rd, 1984, notwithstanding the failure of the State to introduce the necessary legislation in time. In anticipation of this ruling, the two women had instituted fresh proceedings in which they made additional claims under the directive. In addition to the arrears of unemployment benefit already claimed, they sought dependency allowances in respect of their husbands and children and they sought to be paid the new transitional payments that had been introduced in November 1986.
Unfortunately when the High Court was asked to apply the ruling of the ECJ to all of these claims, it ruled against the two women through a series of errors in judicial reasoning. This necessitated an appeal to the Supreme Court, which referred the case back to the ECJ for a second time, seeking clarification on new defences to the claims raised by the State. Eventually, some six years after the proceedings had first begun, the ECJ again ruled in favour of the two women.
Even then, the sad saga of the State’s failure to implement the directive was not over, and it took a further case taken by Flac on behalf of 1,900 women, Tate v Minister for Social Welfare, before eventually the State announced in 1995 that compensation of up to £265 million would be paid to 70,000 married women, effectively bringing to a close the long-drawn saga over the implementation of Directive 79/7/EEC in Ireland.
Why is this your favourite case?
Litigation strategy does not always have this type of happy ending. Sometimes legal cases challenging an aspect of State policy will be unsuccessful in court, copper-fastening the policy in question. Even if a case is successful in court, the Oireachtas will sometimes introduce amending legislation that has the effect of preventing other citizens bringing claims based on the original case. In other cases, the political response to the judicial decision sometimes gets bogged down in a bureaucratic quagmire, thereby prolonging the difficulty faced by the litigant.
However Cotter and McDermott was one of those cases in which two ordinary citizens were able to take on the might of the State and ensure their rights were properly vindicated. Not only that, many other married women first became aware of their entitlements under the directive as a result of media coverage of this litigation. So although one should be cautious about using litigation to tackle social problems, occasionally it can be effective in protecting those the political system might prefer to ignore.
Gerry Whyte is law school professor at Trinity College Dublin