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    Turmoil over de-institutionalisation

    The planned closure of the St Mary of the Angels institution in Beaufort, Co Kerry has brought a disconcerting media focus on the issue of de-institutionalisation of people with intellectual disabilities. The families of residents have made their feelings known on how the closure of that institution is being handled. They have launched a Facebook campaign to ‘Save St Mary’s’ and have been prominent in the media coverage. The families weren’t the only prominent voices in the media. Local public representatives in Kerry County Council called for a reversal of a decision to move the residents of St Mary’s to the community. Fine Gael Senator Paul Coghlan demonstrated a disturbing deficits-model of disability in saying “a stop must be put to this… (residents) cannot decide for themselves. To treat them as if they can move on…is not possible.” Even Daniel O’Donnell weighed in, saying he was sorry to hear of the struggle and lauding the care and the atmosphere in the centre. The voices of the men and women who actually live in the institution have been noticeably absent from this debate. Despite media reports, the closure is not a pilot project. It is national policy to close all such institutions by 2018. The infamous Áras Attracta in Swinford, Co. Mayo is another institution that is due to shut. Following the abuse and assaults uncovered by ‘Prime Time’, a report was commissioned from Dr Kevin McCoy called ‘What Matters Most’. This report captures the abusive nature of institutional living for people with intellectual disabilities. It undertook a ‘day in the life’ exercise of residents. It found that while staff members were pleasant and respectful, it was nonetheless a sterile environment, devoid of meaningful activity and absent of choice. Where the residents had capacity for independent living skills, this was not reflected in planning goals. It concluded that residents of “Áras Attacta have little opportunity to realise their potential to live the rich and satisfying lives that they have a right to aspire to”. Áras Attracta is far from an isolated case. Countless Health Information and Quality Authority reports show that many residents are at risk and that for many, life is demeaning and unfulfilling. An Inclusion Ireland report on the first 50 HIQA inspections found “a picture of extensive non-compliance with regulations in areas such as health and safety, independent advocacy, restrictive practices and correct checking of medicines”. Minister Finian McGrath said in a disappointing response to a recent parliamentary question that he totally accepted that “not all people residing at St. Mary of the Angels in Beaufort will be suitable for transitioning to community living”. Such a statement represents a worrying step backwards from Government policy and contradicts all evidence. Community-based models have been shown to increase personal growth, decrease challenging behaviour, and increase community participation and engagement in meaningful activity. People who are supported to live in the community do better in family contact, social networks and friendships, self-determination and choice, quality of life, adaptive behaviour, and above all else satisfaction. Ireland is not unique in closing these institutions. Across the world there is an acceptance that institutionalisation does not work. The experience in the USA has, in particular, demonstrated that everyone can live in the community and there are no exceptions to this. In fact those with the most complex needs are found to make the most gains from supported, community living. That is why the statement of Minister McGrath is so mistaken. The process of de-institutionalisation is undoubtedly challenging. Supporting the move of individuals, who have sometimes lived for 40 or more years in an institution, requires careful planning. A commitment of resources and support must be made. Independent advocacy is needed now more than ever to ensure that the voice, the will and preference of the men and women who live in such institutions is articulated and respected. Families are concerned that a move to community living will mean a reduction in support and that the de-institutionalisation process is a way of cutting costs. These fears are understandable. Political leadership is required to give reassurance and effective communication to unpick these fears. The Taoiseach admitted in the Dáil that “communication could and should have been better” in the case of St. Mary’s. The ‘Programme for a Partnership Government’ set a modest target of moving one third of the 2,725 people in these so-called congregated settings by 2021. This is not a time to roll back on this promise but a time to deliver. Even if met and sustained, that rate of de-institutionalisation will mean that we will miss the original target date by 13 years. For some people this will mean that they die in these institutions. Sarah Lennon is Training and Development Officer with Inclusion Ireland

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    Beware

    The enforcement of Privacy and Data Protection Law is meagre in Ireland compared to the rest of the EU. This is exciting for practitioners but can be distressing for members of the public; one day it could even be for you! In the case of Max Schrems, now landmark law, an Austrian complainant notified the Office of the Data Commissioner three years ago of alleged violations of privacy law by Facebook but his complaint was originally determined “frivolous and vexatious” by the data commissioner which apparently considered its “hands were tied”. Schrems accused the US social network of breaking European privacy law because, when it transfers its European users’ data to servers in the US, it cannot guarantee that the information isn’t scrutinised by US intelligence. Facebook denied the Schrems allegations but, in a landmark case last year, the EU’s Court of Justice (ECJ) sided with the Austrian and shut down Safe Harbour, the major data-transmission agreement developed by the European Commission in 2000 which essentially promised to protect EU citizens’ data if transferred by American companies to the US, on the basis the agreement made a fool of European citizens’ fundamental right to privacy. But the case didn’t end there because data transfers to the US have not stopped. Facebook – and other companies operating on both sides of the Atlantic – have other legal means to transfer data to the US. Schrems complained again. This time around the Irish Data Protection Commissioner took the view that Schrems had raised “well-founded” objections, but that it needed further guidance from the ECJ to determine the complaint. The case is scheduled to be heard by the Irish High Court for two to three weeks in February 2017. Schrems is a competent Austrian lawyer, author and privacy activist confident enough to challenge disregard for privacy law. All this definitively suggests that even for practitioners data protection is fraught and our authorities make mistakes. However, increasingly ordinary people, non-practitioners nevertheless leading complex lives, are finding it appropriate to make data access requests to businesses, banks and financial services providers to help explain how they are being treated as part of complex operations by far-flung organisations. The experience of the ordinary person, as a recent case shows, can be burdensome and frightening. If privacy is important enough for each EU member state to fund a dedicated agency of data protection, to manage and enforce data and privacy law, why is privacy not being taken seriously by businesses? Data Protection law has been around for a long time and while there was a time for indulgence and forbearance allowing businesses to grow to compliancy, those days should be well behind us. Gerardine Scanlan from Mallow ran into minor financial difficulties and a bank foreclosed on a rental property. A partner in Grant Thornton Accountants was appointed receiver over some of her assets in 2013. Data – contained in a CD – was sent to her in September 2015, in response to her legitimate request for the data concerning her that was being held by Grant Thornton. The CD contained personal data relating to Scanlan but also a vast amount of personal and confidential data relating to third parties, and confidential proprietary matter belonging to Grant Thornton, some of which Scanlan alleges discloses wrongdoing both as to her own receivership and receivership practice in general. It included details of appointment of receivers for a large number of properties of other borrowers not connected to her. Scanlan wrote to the accountancy firm claiming she was concerned to find the extra items of information, among the documents provided to her. She said she was unsure what to do with such documents and wanted advice from the firm. Grant Thornton was unaware of the data breach until it received Scanlan’s letter. In the end Grant Thornton through its solicitors, the ever assertive McCann FitzGerald, brought legal proceedings because it claimed Scanlan repeatedly refused to confirm she would return the information, delete or destroy any copies held by her or guarantee not to provide it to anyone else. It was clear she had already furnished some of the data to confidants and informal advisors though not, as was damagingly claimed, to social media. Scanlan, who was impecunious and therefore had to defend herself without lawyers was given very little time to make her way to the Four Courts in Dublin where she received an unsympathetic hearing from Judge Paul Gilligan who made it clear she should ‘just return’ the material. Scanlan felt appalled that she was being cast as a wrongdoer, that there was no guarantee the third parties would be told by Grant Thornton that their privacy and information had been compromised, that she was being oppressed by having to move so quickly under pressure, that she’d been improperly served with legal documentation, that the name of the branch of Grant Thornton used for purposes of the case was that of the wrong branch and that it was unclear how much of the information furnished to her was rightfully hers and should not therefore have needed to be ‘returned’. She was appalled to see her improvised legal efforts, including a few allegations of dishonesty against Grant Thornton that were implausible, derided by expensive and aggressive lawyers. She was enraged to have been deemed by Grant Thornton and its lawyers to be a “data controller” (for example in paragraph 14 (iv) of their High Court Statement of Claim of 23 February 2016). Above all she was incandescent that a prominent firm of solicitors annotated a Court Order with threats of imprisonment. A data controller is the individual or the legal person who controls and is responsible for the keeping and use of personal information on computer or in structured manual files. They have a legal ‘duty of care’ and are legally obliged to be formally registered with the Office of the Data Protection Commissioner, on a public register. According to the legislation, described by the data protection commissioner: “Being

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    Increasing housing supply won’t reduce prices

    The Construction Industry have said for years that “increasing supply (housing) will reduce prices”. The government have accepted this as fact and current policy is driven by it. The graph below is compiled from Central Statistics Office (CSO ) data for 1975-2015 and includes monthly new home completions and monthly average new house prices in that 40-year period. The information has been directly imported from the CSO website and has not been weighted or adjusted. House prices are for new homes only and 1975 is the reference starting point for both curves. It calls into question that the perceived wisdom of current government policy. The relationship of price to supply appears inelastic; in other words, increasing supply does not reduce cost and in fact the opposite appears to happen (similar to luxury goods). 40 years of CSO data suggests that increasing house prices leads to increasing completions (lead and lag noted). To an architect or builder this makes sense as developments are sales-sensitive and will only proceed if there is enough of a margin to get developers up in the morning. Similarly, phases are delayed if there is any drop in prices. The incorrect assumption, that increasing supply will reduce prices, underpins Government policy aimed at the speculative residential sector: inappropriate pro-cyclical measures (First Time Buyers grant), the reduced apartment-size standards introduced in 2015, the elimination of the local authority role in adjudicating planning applications for over 100 housing units etc. These initiatives are like a landowner’s wish list and disproportionately enhance site values, minimise public input and erode our two-tier planning system. This casts doubt over the competence of Department of Housing officials who advise the Minister and explains the disproportionate influence of vested interests on policy. The net result of current government measures will be to inflate asset prices and consequently increase supply (mid and high end)- not necessarily a bad thing. However, in the absence of any balancing measures aimed at lower-income households, affordability will remain a major problem. Longer commutes to affordable areas outside the capital may become the norm with infrastructural pressures and issues of sustainability as a result. This is happening in the rental sector already. Notable measures that have not been considered for affordable housing include government interventions such as: co-housing, state direct procurement, state financed home-ownership etc. Cost-benefit analyses of such measures are sorely absent from the discourse. Correlation does not mean causation. There are other drivers of demand not shown such as net migration, obsolescence, household formation, interest rates etc. However the graph illustrates that an increase in house supply has not been accompanied by a reduction in prices in 40 years. Unfortunately recent policies conduce to the boom-bust cycle we are supposed to abhor. Maoilíosa Reynolds is a Registered Architect and Certified Passive House Designer.

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    Stacking Up

    Bertie Ahern made a sensible and probably decisive intervention in the controversy surrounding Gerry Adams and the killing of senior prison officer, Brian Stack, which dominated the headlines and political discourse during the first week of December. The resurrection of a story involving the shooting of Stack as he left a boxing match in Dublin’s National Stadium in 1983 was prompted by the leak of an email sent by Adams to the Garda Commissioner, NóirIn O Sullivan, during the final days of the general election earlier this year. The email included the names of four people, including Sinn Féin TDs Martin Ferris and Dessie Ellis, said to have possibly useful information pertaining to the death of Stack eighteen months after the attack. The names, according to Adams, were given to him by Brian’s son, Austin Stack, during his encounters in 2013 with the Sinn Féin leader which culminated in a trip in a van with blacked-out windows to a rendezvous with a senior IRA figure in a house north of the border in August of that year. During the meeting Stack and his brother, Oliver, were given a written statement confirming that members of the IRA had carried out the “unauthorised action” and that one person had been “disciplined” for his role in the attack. The Stack family said that they were satisfied that the meeting had led to some closure in their 30-year-long quest for the truth about their father’s murder. That was until the general election campaign when Austin Stack said that two senior Sinn Féin politicians were among those involved in his father’s killing. He had provided the information to Fianna Fáil leader, Micheál Martin, who did not waste the opportunity to damage Sinn Féin and its leader during the latter stages of the campaign. This prompted Adams to write the email to the Garda Commissioner with the names he claims had been given to him by Austin Stack during their discussions between 2011 and 2013. He did not describe them as suspects and discussed the fact that he was sending on the names with three of those named before posting the email. The fourth was not contactable, he said. Stack has denied providing the names to Adams which in turn raises the bizarre spectacle of a party leader hanging two prominent allies out to dry for no logical reason. After Adams made a statement in the Dáil on Wednesday 7 December, Fine Gael TD, Alan Farrell used a point of order request to name Ferris and Ellis based on a copy of the email provided to him by sources whom he did not disclose. He claimed, somewhat puzzlingly and after being accused of breaching Dáil privilege, that he only revealed the names in order to allow his parliamentary colleagues the option of clearing their names of any association with the Stack killing. Ferris and Ellis were quickly on their feet to do just that and denied any involvement while the Kerry TD confirmed that he had been questioned by gardai in 2013, presumably on the back of the information Garda sources discussed with Stack, and had nothing to answer for. As the story moved along, a full Claire Byrne RTE radio show on a Saturday was devoted to the controversy with Independent Newspapers reporter, Niall O’Connor, robustly denying that he had fed the leaked emailed information to Farrell. Instead he focused, as many others hostile to Sinn Féin have done, on getting Adams to name the driver of the van in which the Stacks were transported and the IRA man they had met. On the same programme Sinn Féin TD, Peadar Tóibín, warned that the manner in which the issue had been politicised by some politicians and media outlets would make it more difficult for other victims of the conflict in the North to get information concerning their deceased loved ones from Republican ‘combatants’ using Sinn Féin mediators like Adams. He also noted that he had sought meetings with Taoiseach, Enda Kenny, on behalf of constituents whose family were killed in County Armagh during the 1970s by the notorious Glennane gang which is now known to have included and been directed by agents of the British army and other state security forces. He pointed out that neither Fine Gael nor Fianna Fáil have been exercised over the search for closure by many victims of British state and loyalist forces during the conflict and had done little or nothing to pursue the information-retrieval and truth process negotiated in the Stormont House and Fresh Start agreements signed up to by both last year. As Ahern pointed out, it is understandable why Adams could not go any further than the assistance he gave the Stack family, and many others over the years, and claimed that he had proposed a peace and truth commission “16 or 17 years ago” but that “the kite fell flat”. Like the constituency motion by his friends in Dublin North Central to bring him back into the party fold (without his knowledge of course), Ahern’s recent attempts to rehabilitate himself is as welcome as Christmas is to turkeys for Micheál Martin, who immediately threw a bucket of cold water on the proposal. Ahern did himself no favours when he told a Sindo reporter whom he just happened to encounter in the Skylon hotel that he still refuses to accept the findings of the Mahon report, which led to his leaving the party in 2012. He intimated that friends of his, including so called ‘dig out’ merchants Des Richardson who was with him in the hotel, and publican Charlie Chawke had since been vindicated with findings against them removed from the tribunal’s record. In fact, a finding against Richardson was removed after the tribunal conceded that he had not been given the opportunity to rebut details of a questionable transaction made through a bank account under his control in the late 1990s, while Chawke also successfully challenged the tribunal on a different matter. The High

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    Villager – Dec/Jan 2017

    Barrister Michael Cush has been appearing for Denis O’Brien in some of his exhausting judicial travails. The last two letters of the senior counsel’s name suggest posh, plush, an advocate who cushions, shushingly. The first two letters suggest something altogether less generous…

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    (Ar)Lean times in North

    December 2016 issue. Six months have been a long time in politics for Northern First Minister Arlene Foster, as storm clouds have gathered round her ascetic political persona. In May she consolidated the DUP vote and seat numbers in the Assembly elections. She seemed master of the political scene, just like newly-minted British Conservative leader, Teresa May. Like May, she is now facing multiple problems. She inherited NAMA in the North One from Peter Robinson’s time as First Minister. No criminality has been proved. However, NAMA’s Northern portfolio was sold for less than a third of its value: and a Northern politician, still un-named though implications are heavy, was due to benefit from at least part of a £Stg7m payment. Several of those involved have strong DUP connections. Foster has fumbled the inherited issue of UDA commander Dee Stitt. Stitt is Chief Executive of Charter NI, a community organisation based in East Belfast, which is overseeing a £1.7m social Investment Fund. In Northern Ireland one can just about get away with being a senior UDA member and convicted armed robber, and chairing bodies that get large sums of money from government. There is a certain feeling in the Protestant community that community projects linked to mainstream Republicans have received funding so projects from ‘their’ community should also be funded. However, he behaves as a clownish caricature of a paramilitary, for example describing the North Down Defenders flute band as “our homeland security”. Police have added to the pressure, by saying that UDA members involved in Charter have also recently been involved in paramilitary activity. In October, Foster told the Belfast Newsletter: “I do welcome the fact that he (Stitt) is stepping down”. However, Stitt failed to stand down. More recently she said it was not for her to advise the organisation on employment issues. At time of writing, it is clear Stitt’s position is untenable. The Renewable Heat Incentive scheme cost the Northern Executive at least £400m and was instigated when Foster was Minister for Enterprise and Investment. In 2012 she launched the scheme, offering grant aid to shift Northern businesses away from using oil for heating and towards renewable energy in the form of wood pellets. There was no ceiling to the level of grant to be paid. Thus, businesses found they could profit by permanently heating empty buildings. The civil servants involved wrongly believed the UK Treasury would cover the costs: in reality these were to come from the North’s Block Grant. BBC Northern Ireland’s ‘Spotlight’ programme has revealed that a whistleblower approached Foster in 2013, explaining how businesses were profiting by wasting energy. She was referred on to the civil servants involved. It took almost three years for the scheme to be wound up. It was monumental incompetence, with there being no suggestion of fraud but a general air of embarrassment about the lack of seriousness of purpose in the North towards the environment. There is another potential problem. At time of writing, it is unclear how serious Deputy First Minister Martin McGuinness’ illness is. Through all  storms, McGuinness has been a sturdy mudguard for first Robinson, then Foster. While Sinn Féin has criticised, it has been in deftly measured tones, falling far short of collapsing the institutions, or seeking heads, though this magazine has noted that Adams telegraphed to Robinson that if he collapsed the executive Sinn Féin would look for his head over the NAMA dodginess. There is now significant disquiet in the Nationalist community. Many feel the DUP is being allowed to call the shots in the Executive. There is also a widespread feeling that, except for the important absence of political violence, there has not been a peace dividend for working-class areas. Instead, there have been cuts to public-sector jobs and services. This was significantly reflected the topping of the poll by Gerry Carroll of People Before Profit in Sinn Féin’s West Belfast heartland in the Assembly election. McGuinness has an authority among the Republican base, and also among the wider Nationalist electorate. He has been able to gain at least tolerance for measures once thought unpalatable. Clearly, Sinn Féin is planning its transition. However, all of the mooted future leaders – the Northerners John O’Dowd and Conor Murphy, the Southerners Pearse Doherty and the ascendant Mary Lou McDonald – will find holding the line among their own supporters much more difficult, at best: and particularly difficult if health issues force an unexpected transition in the North. By Anton McCabe

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    Gender-isory

    This November marks the second anniversary of my successful gender equality case at the Equality Tribunal against NUI Galway for its failure to appoint me to the post of Senior Lecturer. It was hailed as a landmark case and should have been a call to arms, not just for NUI Galway, but for all third-level institutions. However, the awakening is slow and I doubt that much has changed on the ground – or in attitudes amongst university management. Currently, many staff in NUI Galway are disillusioned and afraid. Few staff feel able to challenge the authorities. Many are in precarious posts or worried they won’t be promoted. Some staff, I gather, have been reprimanded for speaking out. Fear has filtered through to the students. Recently a society was told it could not display images of Jim Browne, the NUI Galway President in its ‘Mr Browne’s Boys’ cartoon T-shirts at a table supporting five women lecturers pursuing similar litigation. Last April a cartoon exhibition to raise funds and awareness about the five women was booked on campus by the Students Union, but was taken down by Security in the middle of the night. My case was a landmark case partly because, despite being in the public service, universities have a lot of autonomy, as they should. However, this has led to a lack of transparency in processes such as the promotion and appointment of academics. This has in turn led to an abuse, or perceived abuse, of power. The universities have been getting away with this for a long time now. However, change comes slowly because university management is not answerable to any board of trustees or shareholders. The governing bodies seem powerless or unwilling to effect change. Ireland has an appalling international record for gender equality in academia. It has been ranked second worst in Europe after Malta for its Glass Ceiling Index in academia. Irish third-level institutions have a lot of catching up to do. The facts were stark in NUI Galway when I took my case in 2009. The proportion of successful applicants was stunningly different for men and women. 50% of male candidates were successful compared to the 6.7% of female candidates who were successful (see Table 1). Summing up twelve points in my favour, the Equality Tribunal ruling highlighted that “perhaps the most significant frailty in the respondent’s [NUI Galway’s] rebuttal” was that in all four recent rounds of promotion to Senior Lecturer combined, men had a one in two and women less than a one in three chance of being promoted. One successful man had not even been eligible to apply. I donated my €70,000 award to five other women who, despite being fully deserving of promotion, had been unsuccessful. Their course of action is far more difficult, with only the High Court as an option because the Equality Tribunal deadline was long past. What I find extraordinary is that the university, instead of conceding errors were made, has chosen to spend large sums of taxpayers’ money fighting these women in the courts through an on-going, protracted and emotionally draining, to say nothing of financially stressful, legal wrangle. The Equality Tribunal ruling specified that NUI Galway should send a report to what is now the Irish Human Rights and Equality Commission within 12 months of the ruling. I recently got hold of this and am stunned at what took them 13 months to deliver. It comprises two parts, the larger part being an appendix. The first part, three pages long, sets the tone in stating that “a review had already been underway” but fails to specify that this ‘review’ was actually completed in 2011, three years before the Equality Tribunal ruling and is in fact referred to in the ruling. The first part goes on to repeat the recommendations from that report and devotes one page to the recommendations for the 2013/14 round of promotions, initiated a year before the ruling. No reference is made to the fact that 20 of the candidates deemed suitable but not promoted in that round appealed and that only 18% of female candidates were promoted compared to 35% of male candidates. The consultant’s report commissioned on the back of these appeals is not available even under Freedom of Information (FOI). There was a burst of outrage in the university on foot of my successful case and the action taken by the five other women. The injustice to the five women was immediately raised at the NUI Galway Údarás (Governing Body). I understand the discussion was heated. However, the minutes of that elevated body are only available under FOI where, as part of the process, any useful information has been redacted. Several heated meetings of the NUI Galway Academic Council, that comprises professors, deans and heads of school, and so is overwhelmingly male, resulted in nothing. It was told it was powerless to change matters. Large numbers of students joined the campaign to support the five women, horrified to learn that they had not been promoted. “I am joining the campaign because [name of one of the five women] is the best lecturer I’ve ever had” was a common refrain. The Students Union and both staff unions gave their full support and 26 student societies signed up in solidarity to the campaign. This support continues. What has happened since? A task force was established with much public fanfare and it delivered its final report in May 2016. This was hard-hitting, if limited, since it did not address the position of the five women or focus on non-academic staff, where matters are even worse. The recommendations of the task force are not faring particularly well. It recommended that 50% of the “major influential” committees should be chaired by women by 2018. However, College Deans (all men) chair such committees and three of them were recently replaced by three more men. The task force suggested a cascade system of promotion. This is being watered down. Although 52% of lecturers are women,

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