Background
The Health (Amendment) Act 2021 (“the 2021 Act”) introduced quarantine provisions to reduce the risk of importation of Covid-19. The Minister for Health publicly designated UAE as an area which presented a high risk of importation of Covid-19 under the 2021 Act, and thus mandatory quarantine was imposed for individuals arriving from such states. The designation was made under s. 38E(1) of the Health Act 1947 (“the 1947 Act”) as inserted by the 2021 Act.
Two days after the designation by the Minister, the two appellants travelled to UAE and upon their return, they refused to go to the designated hotel facility for their quarantine. As a result, they were arrested and charged with the offence of resisting being brought to a designated facility under s.38B(7) and in breach of s. 38D(1)(c) of the 1947 Act as inserted by s. 7 of the 2021 Act.
The appellants challenged the legality of the procedure through which the Minister delegated the UAE as a high risk area, claiming that there has been an unconstitutional delegation of power by the Oireachtas of its legislative function, contrary to Article 15.2.1.
The appellants also claimed that there had been an unconstitutional delegation of judicial power to an administrative ‘reviewer’, in this case the Designated Appeals Officer who can review the quarantine decision based on various grounds, including medical reasons, exceptional reasons and urgent humanitarian reasons. The appellants applied to the Designated Appeals Officer for a review of their quarantine confinement but were refused.
Decision
The Supreme Court dismissed the appeal. It stated that there has been no unconstitutional abdication of legislative power from the Oireachtas to the Minister, as the choice to designate states as high risk came within the overall scheme of mandatory quarantine. The parent legislation set out the purpose of the scheme, created the criminal offence and limited the delegated power to the designation of high-risk areas, thus enabling the scheme to operate within the boundaries set by the Oireachtas.
The power of designation was held to be demonstrably within the range of normative decision-making power that the Oireachtas is constitutionally entitled to confer on another decision maker. The appellant’s arguments that the power of designation was too broad was thus rejected, and the delegation of power was found to be constitutional.
In relation to whether the review function of the Designated Appeals Officer was a judicial function, the Court stated that a decision on the loss of liberty is not solely withing the jurisdiction of a court. A decision to limit freedom of movement can also be made in cases of mental illness or as a response to different infectious diseases. The court also pointed out that the officer decides on the release rather than on the deprivation of liberty.
The Supreme Court applied the Zalewski v Workplace Relations Commission and McDonald v Bord na gCon tests, and concluded that the appeals officer was not exercising a judicial function similar to granting bail.