Dr David Kenny (above) assistant professor at the Covid-19 law and human rights observatory of Trinity College Dublin

Yesterday.

At the Special Covid-19 committee, a number of legal experts went before the committee to answer questions about the rule of law during Ireland’s response to Covid-19.

The experts included Maura McNally SC, chair of the Bar Council of Ireland; Ken Murphy, director general of the Law Society; and Dr David Kenny assistant professor at the Covid-19 law and human rights observatory of Trinity College Dublin.

Dr David Kenny: said

“…there are several core rule of law concerns in respect of the pandemic regulations… One significant problem is the failure to promulgate or publish regulations in a timely manner. Ideally, this should be done before they come into effect, to allow scrutiny, comment and explanation.

We would recommend a statutory requirement, similar to the one found in New Zealand, that regulations be published 48 hours in advance of their coming into effect unless there are public health reasons that make this requirement unworkable.

Another major issue is the failure to properly communicate the content of regulations. This is most problematic in the repeated elision, in State communications, of legal requirements and public health advice.

For example, it was unclear to those “cocooning” in the most severe period of movement restrictions if they were legally required to remain in their homes; they were not.

It has been heavily implied in several instances and fora that the requirement to isolate for 14 days after travel is a legal obligation. It is not and never has been.

It might be thought in some quarters that this is a useful strategy for ensuring compliance with public health advice because people will be more likely to comply if they think they are legally obliged to do so.

“Such a strategy raises serious rule-of-law concerns and has real costs. It confuses members of the public, erodes public trust in communication about the law and is an abuse of State power, implying a legal threat that simply does not exist.

We believe this could have long term consequences in terms of public confidence in, and compliance with, legal obligations and public health advice in respect of the pandemic.”

The Law Society’s Ken Murphy said:

“It is thematic in the Law Society’s submission that the issue of being able to identify what is law and what is guidance and the difference between the two and the potential for sanctions for breach of the law is essential.

“There is confusion in this regard. I wish to clear up some confusion, if there is any, regarding a headline in The Irish Times this morning which seemed to suggest that it was a Law Society suggestion that the confusion between the two had been deliberate by the State. The Law Society is not suggesting that; it is not part of our submission.

“However, we think that just as the law always strives for certainty, inevitably in circumstances where there was an enormous need for speed of response, which the State rose to admirably during those crisis weeks and months, there was some absence of certainty in the capacity of the public to be able to distinguish what was law and what was guidance.

We are not suggesting there was a deliberate confusion of the two by the State or any organ of the State, but we believe, and this is thematic of the society’s submission, that for the future there should be greater clarity.

“We say in the submission there is a need for clearer communication as to what restrictions are being imposed, the reasons for them, whether they are intended to have legal effect and the sanctions for breaching them if they are legally binding. A consequence of an absence of that is confusion and, potentially, resentment due to that lack of clarity.“

Mr Murphy added:

“Part of the Law Society of Ireland’s submission has under a heading a discussion on house parties, which is something else the Deputy referred to. The proposal to empower gardaí to enter private dwellings with a view to enforcement of Covid-19 regulations is of some concern to the society, as we have said in our submission.

“Criminal statutes that provide for powers of entry by gardaí into private dwellings generally have safeguards that require certain preconditions to be met.

The Oireachtas has generally provided that powers of entry into private dwellings are reserved for the investigation of serious offences, for example, an arrestable offence, whereby the penalty for such an offence is a penalty of five years imprisonment or more.

Again, without expressing any definitive view on it I conclude with a sentence from our submission which states that the society cautions against introducing powers which are normally reserved for the investigation of serious criminal offences for the purpose of enforcing what are, in effect, health regulations.”

Mr Murphy added:

“Clearly, the Constitution provides protection for the dwelling houses or homes of citizens.

“The circumstances in which that can be violated are highly restricted. Again, it becomes a question for argument as to whether the power being introduced and the circumstances for which it is being introduced amount to a necessary and proportionate response.

I simply pointed to something that was in the submission of the Law Society of Ireland, which all Deputies received. It was no more than an expression of concern, not a definitive expression one way or another that we are for or against it. We are simply saying there are legal concerns about this.”

David Kenny added:

“The key thing about proportionality is that context is key. If a severe public health need could be shown, something might be proportionate while it might not be if that evidence cannot be presented. That is why it is difficult to speak in general terms about this. It really depends on the evidence that can be presented for such an extraordinary power to be necessary.

“What we can say is that there is certainly a credible constitutional objection to such a power of entry, not that it is certainly or definitely unconstitutional. It is for these Houses in debate to work out whether they believe that the evidence and threat is sufficient if that comes forward as a proposal.

“We have been saying repeatedly that there is a need for oversight of regulations. Perhaps it is essential that the primary legislation allows for some broad regulations which may even include making a civil offence relating to the establishment of dwellings.

However, we would need primary legislation to create a search power and then there would be Oireachtas oversight. We need Oireachtas oversight of these regulations as well because they are significant. Some of the most significant rule-making in this pandemic has been done by regulation. It is important that this oversight is in place.”

Yesterday: Sumption Happening Here