Doireann Ansbro is Senior Research and Policy Officer with the Irish Council Civil Liberties (ICCL).
Following the Taoiseach’s announcement on 12 March urging people to work from home where possible and hinting at further restrictions on movement, ICCL released a press release highlighting that human rights can be limited but not suspended during emergency periods. This has been our consistent theme over the past three extraordinary weeks, as the response to Covid-19 has dominated the work of Government, the news cycle and our desks (at home) at the Irish Council for Civil Liberties.
Our rights still stand during an emergency
A Bill proposing to give the Government the power to issue regulations to restrict our rights to free assembly, association and movement to a degree unthinkable pre-Covid was published early on 18 March. We spent that day drafting a submission to Government. We highlighted that all of the rights contained within the Irish Constitution still apply in emergencies and can only be suspended in times of war or armed conflict. It may feel like we are at war against Covid-19 but our rights in the Constitution still stand. Similarly, all of the rights contained within the European Convention on Human Rights, absent a declaration of derogation, are still protected during an emergency.
Of course, rights can be limited. Human rights law sets out a clear framework for limits that all human rights lawyers know like the catechism. Limits must be prescribed by law, they must be necessary in order to meet a legitimate aim and they must be proportionate to this aim.
We know the legitimate aim here. Action was necessary to vindicate the right to life and bodily integrity in the face of the grave risk posed by the spread of Covid-19. The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (the Act) prescribes proposed limits to freedom of assembly, association and movement in law. The question was and remains will these limits be proportionate.
Emergency Legislation
Section 10 of the Act allows for regulations to be made that restrict travel to, within and from an ‘affected area’. The section specifically refers to the possibility of restricting people to their homes. Events and gatherings can be banned.
An Garda Síochána can arrest you for contravening ‘penal provisions’ of the regulations or refusing to follow their direction to comply. Conviction can lead to six months in prison, a €2,500 fine or both.
Section 11 of the Act considerably extends existing powers of detention in the health context. It empowers any medical officer of health to detain someone who refuses to self-isolate. It also removes a statutory right of appeal. It allows for one review by another medical officer and provides that a test for the disease should occur as soon as possible or within 14 days.
Rights implications of the emergency legislation
ICCL accepted from the outset that some restrictions on our rights were necessary to combat Covid-19 and that legislating for such restrictions demonstrated a welcome commitment to the rule of law. However, we underlined in our submission that the legal and policy response had to be necessary and proportionate. We recommended enshrining these principles in the Long Title to the Bill, tightening the language in both s.10 and s.11, and introducing more robust safeguards for those who may be detained.
As the Bill flew through the Dáil and the Seanad, a clear commitment to civil liberties emerged. Many TDs and Senators referred to our submission and some expressed sincere regret at the limited time for debate and the rejection of many proposed amendments.
One key change we called for, however, was implemented. We had argued that the emergency legislation had to have a sunset clause. Initially, the Bill foresaw an end date of 9 May but gave the Government the power to continue to make regulations potentially indefinitely without prior Oireachtas approval. Almost everyone that spoke during the debate called for a sunset clause. The Minister listened and put forth his own amendment specifying 9 November as the end date. This means no regulations can be made beyond that date without full parliamentary scrutiny.
ICCL sees this as a significant success. Emergency legislation always poses the danger of introducing laws or standards that seep into ordinary law. For example, if it hadn’t been introduced during a period of emergency it’s highly unlikely we would have a Special Criminal Court. In other countries, with less stable democracies, this is a much more serious issue. Hungary is a prime example.
Our concerns about the need for a proportionate response remain. However, we were heartened to hear Simon Harris say he hoped these powers would not have to be used and that the principles of necessity and proportionality would underpin everything he did. We wrote last week urging him to stick to this commitment when drafting the relevant regulations.
The Oireachtas passed a second piece of emergency legislation last Friday. We analysed the section amending the Mental Health Act and sent this to Oireachtas members. We called for assurances that changes in the Mental Health Tribunal’s procedures to allow for remote assessments and decisions would not drown out the patient’s voice, or significantly dilute hard-fought safeguards.
Current Situation
The Government has not yet made Regulations under the first emergency Act, though we believe we may see them by the end of this week.
The Taoiseach’s announcement last Friday that people must stay at home bar essential activities is rooted in expert medical advice but not yet in law. As such, the policing operation last weekend was an exercise in community policing, not enforcement.
If Regulations are published, we’ll be writing to the Garda Commissioner calling for a human rights based approach to their implementation. We’ve already written to him highlighting the risks of introducing spit hoods for detainees and raising concerns regarding Garda demands for ID at checkpoints last weekend.
We all must follow the advice of our health professionals to prevent the spread of Covid-19. But for those who don’t let’s hope the response is informed by our long tradition of policing by consent, and not by coercion. An overly heavy-handed approach will risk our rights, which have been shaken but still stand.