Dr. David Kenny:

I thank the committee for the opportunity to offer evidence today. I am here in my capacity as a co-ordinator of the Trinity College Dublin Covid-19 law and human rights observatory, which considers and analyses many aspects of Ireland’s response to the pandemic. As requested by the committee, the observatory made a submission on several aspects of public governance, and I will briefly speak to these.

The first matter we would highlight is the general adequacy of our constitutional and legislative system in responding to the pandemic. Ireland did not declare a constitutional state of emergency in response to Covid-19. The emergency powers in the Constitution are not applicable in a pandemic or natural disaster; they can only be used in a case of war or armed rebellion. Instead, Ireland very quickly drafted and enacted two pieces of legislation, which though framed as emergency measures, do not enjoy special legal or constitutional status. In spite of this, Ireland was able to mount an effective legislative response, with this legislation seemingly having been adequate to enable swift and flexible response to this crisis. There has been no credible suggestion that the legislation is unconstitutional. We note in our submission several areas where constitutional objections to proposed measures have been mooted, such as entry into private dwellings and the extension of an evictions moratorium. However, it is unclear to what extent it was these constitutional concerns that prevented the taking of these measures, or how valid these constitutional objections were.

Therefore, based on this evidence, we suggest that Ireland's legislative and constitutional framework has been adequate to respond to the pandemic, and there is no need for express constitutional emergency powers to react to natural disasters or public health emergencies.

There may be a case for standing public health emergency legislation to allow for a swift response to public health crises by the Executive in the event that the Legislature could not meet, or was incompletely constituted. Such legislation would have to have very strict limitations and accountability mechanisms such as judicial oversight, time limitations on its use, and a requirement for legislative approval of its use as soon as practicable to ensure it could not be misused.

We also highlight in our submissions several possible improvements to the current Covid-19 legislative response. The most important is the need for better “sunsetting” clauses or time limitations in the legislation. The best approach, we suggest, would be to render the legislation defunct in the absence of express reauthorisation by the Oireachtas for certain specified, limited and defined periods.

The second issue we wish to highlight is the need for a return, as a matter of urgency, to the full functioning of the Oireachtas and the full operation of the committee system. This is essential during a time where we have handed over extraordinary powers to the Executive. This committee has done an admirable job in providing scrutiny of the State’s pandemic response, but the range of matters that require oversight is simply too broad for a single committee. The ordinary committees of the Oireachtas are needed to oversee the effect of a pandemic response in discrete areas, while this committee focuses on the impact of the more extraordinary measures taken, and the overall efficacy of the State’s response.

The establishment of committees has been frustrated by the apparent inability for the Houses and committees to have remote sittings. This is based on what we suggest is questionable legal advice that remote sittings are constitutionally impermissible. For reasons that we have summarised in our submission, and set out in detail elsewhere, we see very little basis for this view. Given the likely ongoing difficulties of convening frequent in-person meetings with all necessary participants, it is essential that remote or hybrid sittings be considered.

Third, we would highlight the need for much greater scrutiny by the Oireachtas of individual regulations and the manner in which they have been made. The two emergency Acts give vast power to the Government to make regulations. This is necessary and, as we argue in our submission, constitutional. Given their extraordinary scope, however, and their potential to restrict the rights and liberties of members of the public, these regulations must be closely overseen by Parliament. We would suggest following New Zealand’s example whereby any regulation made under these Acts would be “disallowed” and cease to have any effect unless the Legislature positively affirms the regulation within ten sitting days.

Fourth, there are several core rule of law concerns in respect of the pandemic regulations that we outline in our submission. 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.

Once again, we thank the committee for the opportunity to discuss these issues. I will be delighted to answer any questions that members of the committee might have.