Ms Michele O'Boyle:

Let me begin by thanking the committee for inviting us to attend today's meeting. We have watched with great interest as the committee has focused on various aspects of the State's response to Covid-19 and we appreciate its work in examining the legislative framework underpinning that action.

The March 2020 lockdown impacted every aspect of Irish life, including the work of the legal profession and the courts. From the outset of the crisis, the Judiciary, the

legal profession and the Courts Service worked tirelessly and collaboratively to maintain the most urgent of services and to restore others insofar as it was possible to do so. The operations of Government Departments and State agencies were also severely impacted and I want to thank the officials who worked with us throughout the crisis to ensure that vital services remained available to solicitors and their clients wherever possible.

April marked a seismic shift in the manner in which justice is administered in the State with the commencement of remote hearings. Recent months have seen a remarkable acceleration of the adoption and implementation of technology throughout our profession. We are all participants in that change, which is likely to be permanent as many traditional ways of doing business are unlikely to return. This fact has been recognised by the recent addition of the parameters for remote hearings to the Statute Book.

As the committee members will know, the State's legislative response came in the form of two pieces of primary legislation which were supplemented and extended by many secondary instruments. While many aspects of Ireland's response were successful and compared favourably with other jurisdictions, there was a need for clearer communication as

to precisely what restrictions were being imposed, the rationale for those restrictions, whether or not they were intended to have legal effect and any sanctions for breaches. In order to assist the committee's consideration of the legislative response in other jurisdictions, the Law Society of Ireland has provided some recent case law as well as detailed information on initiatives adopted across Europe. We hope that this, together with this morning's input from representatives of the profession, will assist the committee in framing the Irish response within a wider context.

I now turn to our recommendations.

It is evident, in the face of a pandemic which spread with such speed, that no state’s legislative framework - including that of Ireland - could have been fully prepared to deal with the challenges which would, and did, arise. While acknowledging that everything was moving at speed to address a rapidly changing and uncertain environment, there are lessons to be learned and steps to be taken to ensure that, in the event of a similar crisis, a number of issues can be better addressed. In that regard, the society makes the following recommendations for consideration by the committee.

Sweeping powers granted under the emergency legislation led to the introduction of regulations which required people to largely remain in their homes and limit social interactions. This impacted on a range of fundamental rights which are protected under the Constitution and the European Convention on Human Rights. We set out the parameters of the Heaney test regarding the proportionality of regulations in our submission to the committee. While the courts may ultimately answer the question of whether recent measures were constitutional in the event of a credible legal challenge being brought, and while the situation facing the State in March was unprecedented, when interfering in the fundamental rights of citizens, the least intrusive approach possible which achieves the required result should always be taken. Also of note is the test established in the Cityview Press case which requires that any regulations introduced that flow from, for example, the Health Act 1947, cannot exceed the principles and policies expressed in that primary legislation.

Our second recommendation relates to enhancing clarity. It is a requirement under Irish law, EU law and the European Convention on Human Rights that there should be certainty as to the nature of obligations placed on individuals. On some occasions, the communications in respect of restrictions fell short of providing such certainty because the extent and application of those restrictions was unclear. Statements of guidance by Ministers or public authorities which purport to regulate the behaviour or activities of private citizens or, indeed, businesses are not satisfactory. If such requirements are considered sufficiently important to be mandatory, they should be placed on a satisfactory legal footing to ensure that private citizens and businesses can clearly understand what it is that they must adhere to.

The successful use of technology during the crisis and the introduction of a legislative framework to facilitate remote hearings paves the way for the Courts Service and the Judiciary to offer an improved and more cost-efficient service to the public. In order to achieve this, fit-for-purpose technology platforms must be available to support remote court hearings. It is essential that in developing appropriate systems the Courts Service is not constrained by the limitations of its existing infrastructure.