Today (20 November 2019) is the 60th anniversary of the UN General Assembly Declaration on the Rights of the Child and the 30th anniversary of the adoption of the UN Convention on the Rights of the Child. As discussed in a previous blog post, entitlement to child benefit essentially ended for children in the asylum process in 2004, with this legally copper-fastened by the Fianna Fail and Green Party government in 2009. So between 2004 and 2016, a weekly payment of €9.60 per week per child was paid to parents in the direct provision system. (For a broader children’s rights analysis of the direct provision system, see here this post only focuses on increases to direct provision allowance.)
Attempts to legally challenge the non-legislative nature of direct provision allowance failed in the 2014 case of C.A. and T.A. In response to the also unsuccessful argument that direct provision accommodation was ‘abnormal’ and potentially breached rights to family life under the Constitution or the European Convention on Human Rights, Mr Justice Colm MacEochaidh stated,
Though my instinct tells me that ‘direct provision’ is not an ideal environment for rearing children, I cannot assume the skill and knowledge of a psychologist to make conclusions about the suitability of ‘direct provision’ for children. Therefore, again, because of a failure of proof, the contention that the respondents are responsible for creating a negative atmosphere in which the second named applicant is being reared, in breach of relevant ECHR and Constitutional rights must fail.
As made clear by MacEochaidh J. in the judgment, just because these particular applicants in this particular case did not meet the requisite standard of proof, does not prevent others from arguing that in their particular circumstances, the system of direct provision accommodation violates fundamental human rights legal obligations under the Constitution or the ECHR.
Focusing on the rate of direct provision allowance for children, the McMahon Group, early on in its deliberations in 2014/2015 considered the rate of child payment. On June 30 2015, the McMahon Group formally issued its report, which did not differ significantly from the Draft McMahon Report of May 2015, including the recommendation to increase direct provision allowance to the rate of €38.74 per adult and €29.60 per child, per week. This rate of €29.60 was based on the additional child allowance that individuals entitled to a full-rate social assistance payment would be entitled to. Initial government response to this recommendation was cautious, with the then Minister for Social Protection Joan Burton stating that any increase could only occur if additional funding was allocated to her Department.
In January 2016, the Ministers for Social Protection and Justice jointly issued a press release to announce a €6 increase in the child rate of direct provision allowance, to bring the weekly payment to €15.60 per week per child. The justification on this raise was given subsequent as children in direct provision being ‘particularly vulnerable group’, and the €6 increase was taken as an interim measure pending full consideration of the McMahon Report proposed increases. The increase occurred close in time to the consideration of Ireland’s 2016 report to the UN Committee on the Rights of the Child. The 2017 increase by a further €6 per week for children, and €3.50 increase for adults, as with the 2016 increase, had little to do with the recommendations of the McMahon Report. Instead, the 2017 increase was a highly orchestrated collaboration between an NGO and the then Minister for Social Protection, Leo Varadkar during the Fine Gael internal election of a new leader, who would go on to be Taoiseach. During planning for this increase, and the issuance of a Draft Memorandum for Government on the issue, one official within Justice, has the following reaction to the increase:
[T]here are no ‘discussions going on about the DP allowance” here [in Justice]. We are both aware that an NGO- the Children’s Rights Alliance is petitioning you to increase the child payment. If you decide to do so, I can’t see our Department being against that but we are not in or initiating any “discussions” on the matter…
Justice did succeed in making a minor, and fairly petty, change to the draft press release. In announcing the increases, a rationale for increase for children, was that children were a “particularly vulnerable group’. This language was opposed by Justice, who successfully argued that children be described as ‘ a group of particular focus’.
Finally, in Budget 2019 (implemented in March 2019), post the placement of direct provision allowance on a legislative footing (now called daily expenses allowance), the Department of Employment Affairs and Social Protection successfully implemented the recommendations contained in the McMahon Report. This was the first time that approval for increases to direct provision allowance were presented before the Dáil and voted upon as part of the social welfare budget package. There was no specific press release, by the Minister, Regina Doherty, there was no kite flying prior to the Budget 2019, and no external/electoral pressures to explain this increase, other than Social Protection seeking to implement the McMahon recommendations. The child rate was increased to €29.80, while the adult rate was increased to €38.80.
As reported by Ken Foxe in Noteworthy in May 2019, and further discussed in the Irish Times yesterday, one Justice official was none to pleased with this increase. You can access these documents here. From my reading of these documents, I’d go so far to say that Social Protection knew Justice would object and rather than informing Justice early of this plan, decided to not inform Justice until the last possible moment. For the entirety of the time of direct provision allowance, Justice successfully stopped it been placed on a legislative basis, and stopped any ‘formalising’ of this payment. There had always been tensions between Social Protection and Justice, yet this is the first documented evidence of Social Protection going solo. Now whether there was a Government decision approving this, whereby the Minister for Justice knew this was occuring, we will not know for the next five years. I do have a sense that Social Protection simply did a solo run on this occasion, but I could be wrong!
It should be noted, that while the McMahon Report sought to align weekly child direct provision allowance rates with mainstream lower child dependent rates, this index-linking did not occur in Budget 2019 nor in Budget 2020. If this had occurred, then direct provision allowance weekly payment for children should be at a rate of €36 per week for children under twelve years, and €40 per week for children over twelve years.
Liam is an associate professor in UCD School of Law.