Ms Doireann Ansbro:

I thank the Chairman and committee members for having us here today. I am here with the executive director of the Irish Council for Civil Liberties, Mr. Liam Herrick, and both of us will be happy to answer questions. The Irish Council for Civil Liberties is an independent NGO that works to promote and protect human rights law and standards in Ireland. From the outset of this crisis, we have supported the public health effort and recognized that stemming the spread of the virus would likely require some restrictions on our rights.

Such restrictions are permitted under human rights law but, as the committee has heard already, a strict framework exists to ensure that they are as minimal as possible. Restrictions must be set out in law, be demonstrably necessary and be proportionate to a legitimate aim. We have applied this framework in our analysis of the pandemic response at every stage. In our submission, we set out how such an approach can be more effectively applied in legislation and regulations. We set out why we believe a human rights approach can strengthen the Government’s public health effort, and we highlight some specific rights issues that have arisen over the past few months.

When the first emergency health legislation was published in March and we saw the extraordinary powers being granted to the Minister for Health to restrict our rights to liberty, movement, association and assembly, the ICCL made a comprehensive submission to the Oireachtas. In addition to calling for a sunset clause and more safeguards within the legislation, we emphasised the need to ensure that all of the restrictions in any future regulations must meet the human rights framework. We suggest that future emergency legislation could and should be better human rights-proofed by integrating these principles of necessity and proportionality explicitly, by introducing a requirement to certify legislation as compatible with Ireland’s human rights obligations and by making consultation with the Irish Human Rights and Equality Commission a mandatory requirement where legislation so obviously impacts rights.

With the second emergency health Act and each set of subsequent regulations, the ICCL highlighted its concerns about rights. We have made submissions to the Oireachtas, the Taoiseach, the Minister for Justice, the Minister for Health, the Garda Commissioner and this committee. For example, in the early stages we strongly opposed the use of heavy criminal sanctions attached to regulations on movement. We welcomed the removal of these sanctions in July but remain concerned about significant criminal sanctions attaching to ongoing regulations. We called for more guidance around what constitutes a lawful reasonable excuse for not observing restrictions. In particular, we called for clarity in respect of the right to protest. Protest is a fundamental avenue for expressing dissent and takes on an even greater importance when decisions are being made that have such a monumental impact on our lives. Guidance on this issue is still pressing both for organisers and for those policing protests.

While we support the general Garda approach during the pandemic of engage, educate and encourage, the expansion of Garda powers has been and continues to be significant. This carries a risk to public trust, especially where broader powers of intervention in the private sphere are concerned. We strongly opposed recent proposals to criminalise gatherings in private homes and we regard last week’s pub grub regulations as unlikely to meet the human rights tests. We welcome the provision of some statistics on Garda operations connected to the pandemic. We also welcome the oversight provided by the Policing Authority. However, we echo its calls for more detailed public data on the use of exceptional Garda powers to enable a proper analysis of their necessity. We opposed the introduction of spit hoods for detainees during the pandemic because of considerable human rights concerns around hooding and we continue to call for their urgent removal from the Garda kit.

We have also called for better communication, accessibility and clarity around the making of each set of regulations. As the committee has heard already, fundamental rule of law principles require clarity and precision and take on greater importance when rights are restricted and criminal offences are created. A situation where people are uncertain about what guidelines have a legal basis or what behaviour is illegal is untenable. Laws must be published in advance and Government must clearly communicate the content of these laws. We continue to call for wider Oireachtas scrutiny of regulations before they come into force and for a human rights impact assessment of each set of regulations.

Finally, we have called for much greater transparency regarding the process of translating expert medical advice into Government decisions. This is fundamental to ensuring public trust and co-operation. We all need to know that broader societal concerns including rights implications are being taken into account, as complementary to expert health advice, when policies are drawn up and restrictions on our precious rights and freedoms are signed into law. I thank the committee.