Trinity COVID-19 Law Observatory finds Government blurred lines on emergency powers

Posted on: 25 February 2021

New research published today by the Irish Human Rights and Equality Commission (the Commission) and Trinity’s COVID-19 Law Observatory has found that the Government has persistently blurred the boundary between legal requirements and public health guidance in its COVID-19 response.

The study, a first of its kind evaluation of Ireland’s use of pandemic related emergency powers, also sets out significant concerns that human rights and equality scrutiny has been side-lined when emergency powers have been put in place, and makes recommendations to remedy this.

The report “Ireland’s Emergency Powers During the COVID-19 Pandemic”, further sets out that shifting relationships between the Government and NPHET, and limited opportunities for Oireachtas oversight have made it difficult to ascertain where, if at all, human rights and equality concerns are being addressed.

Authored by experts from the COVID-19 Law and Human Rights Observatory in Trinity College Dublin, the study looks at the 4 statutes and more than 65 sets of regulations enacted between March and December 2020 in response to the COVID-19 pandemic.

Lead author of the report, Oran Doyle of Trinity College Dublin stated: 

“The Government has had to respond to an unprecedented crisis. But by limiting Oireachtas oversight and persistently blurring the distinction between people’s legal obligations and public health advice, the Government has both infringed human rights and made it more difficult to lead the public response to the pandemic. ”

The report also suggests that Garda enforcement of emergency COVID powers has disproportionately affected young people, ethnic and racial minorities, Travellers and Roma. However, because An Garda Síochána has resisted repeated calls, including from the Irish Human Rights and Equality Commission and the Policing Authority, to publish its data on how enforcement powers are exercised against particular groups, the Gardaí cannot be held to account, and effective human rights and equality analysis of these powers is hampered.

Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission stated:

“The Commission is concerned about the lack of human rights and equality expertise in the decision-making structures put in place to tackle the pandemic, and in the systems that implement and scrutinise these decisions. This encompasses a notable lack of consultation with groups likely to be particularly impacted.

“Almost a year on from the first case of COVID being identified in Ireland, there is a need to enhance protections of human rights, equality and the rule of law when adopting and implementing emergency powers, both as we continue to grapple with the current pandemic, as we emerge from it, and in potential future national emergencies.”

The study has been published by the Commission as part of its mandate to keep under review the adequacy and effectiveness of law and practice in the State relating to human rights and equality.

While the report considers the public health threat is sufficient to provide a justification for some restrictions, it finds that in the period examined:

Parliamentary oversight of Ireland’s emergency legislation has been lacking.

Shifting relations between NPHET and Government makes it difficult to ascertain where, if at all, human rights and equality concerns are being addressed.

There has been limited or no consultation with those groups most likely to be affectedin respect of the public health framework.

The Government’s making and presentation of regulations raises serious rule of law concerns.

Among the report’s findings are that“It is difficult to avoid the conclusion that the delegation of legislative power to the Minister for Health has resulted in a black hole for the consideration of human rights and equality concerns.”

The report makes a number of core recommendations:

1.      A specialist Oireachtas Committee on Equality, Human Rights and Diversity is needed to scrutinise emergency legislation and ministerial regulations.

2.      All COVID-19 related emergency powers should have sunset clauses, allowing for 3 month extensions, if approved by the Dáil and Seanad.

3.      NPHET should have an expert sub-group on human rights, equality and ethical concerns, and this expertise should be reflected on NPHET itself.

4.      The Department of Children, Equality, Disability, Integration and Youth should have a voice on the Government’s NPHET oversight committee.

5.      The Minister for Health should publish a human rights and equality analysis of each emergency regulation within 48hrs of their being made.

6.      All emergency regulations should lapse within 10 sitting days if not approved by the Dáil and Seanad.

7.      The Garda Commissioner should take action to ensure that disaggregated data is made available on the exercise of all enforcement powers.

Separate to this research, in September 2020 the Irish Human Rights and Equality Commission appeared before the Oireachtas COVID Committee. Chief Commissioner Sinéad Gibney and Commission Member Sunniva McDonagh warned Oireachtas Members that emergency legislation related to COVID needed to be used exceptionally, and subjected to strict human rights standards and oversight.

The full report can be read here:

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