Mr. Liam Herrick:

I thank the Chairman. On my behalf and on that of the ICCL and my colleague, Ms Ansbro, I thank the committee for inviting us to present before it today.

Over the past 14 months, ICCL has made detailed submissions on all aspects of the Government response to Covid-19, articulating the view that human rights must be protected in dealing with this great social challenge. The powers created by the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 and, indeed, by other Covid-19 legislation are extraordinary. They permit the Minister for Health to make regulations that impose significant limitations on all aspects of our fundamental rights. The powers supersede the role of the Oireachtas to scrutinise and debate laws and allow the Minister to designate certain public health matters, which are basic aspects of ordinary life, to be penal provisions, drawing the police and criminal justice system into ordinary daily life. While many of the regulations have been clear and had an understandable purpose, on some occasions, the failure to carry out a human rights impact assessment and consult with the Oireachtas and other stakeholders, has led to disproportionate interference. The ICCL is concerned by what is before the House this week and what is proposed by the Minister for Health and the Government.

The situation now is vastly different to the situation in March 2020. At that time, it was unclear if the Oireachtas would be able to sit to consider and pass legislation. The primary role for making regulations was transferred, on a temporary basis, to the Minister for Justice. If, however, the Government is asserting that this extraordinary ministerial power needs to continue, and that the Oireachtas should continue to be excluded from scrutinising and considering legislation in this area, at the very least, the Minister should be putting forward evidence of that ongoing necessity and demonstrating that he and his Department have carried out a review of the exercise of these powers over the last 14 months. This is not about whether the pandemic is over or whether restrictions might still be necessary, it is about whether the Oireachtas will have any role in considering the content of those regulations.

Even it is accepted that some ministerial powers need to be retained in this area, we should at the very least be learning from the experience of the last 14 months. There is no evidence that the Minister or the Department have reflected on the recommendations that have been made by the Oireachtas Special Committee on Covid-19 Response, the Irish Human Rights and Equality Commission, IHREC, the Trinity College Dublin Covid Observatory, or indeed, ourselves in ICCL, which have consistently made recommendations on how the ministerial powers might be better supervised and the Oireachtas might have a role in consultation and scrutiny over the regulations.

Even if the powers are to be retained and extended, we must now consider when temporary measures cease to be temporary. What is proposed before the Oireachtas this week in terms of a renewal and sunset clause will further marginalise the Oireachtas. As was pointed out in the Seanad yesterday, this is not about an extension only until November. This is the possibility of further subsequent extensions beyond that. We believe there should now be an ultimate sunset clause by which all ministerial powers in this area will cease. The mechanism that is proposed for further extension will require only a resolution of the Oireachtas to add a further three months beyond November. At a minimum, there must be a requirement that a technical report be laid before the Houses and that there be a substantive debate.

In light of the fact that the Government has not in any way modified the powers that have been in place since March 2020, we are deeply concerned about an extension to November. At the very same time as the Government is saying that business and society are returning to normal and international travel is coming back, it is extending these powers until November and potentially indefinitely beyond that.

The ICCL considers the upcoming end date for the emergency legislation on 9 June as a moment requiring extensive review of these extraordinary powers. Next week, the ICCL will publish a detailed report in conjunction with the Community Foundation for Ireland on all of the pandemic's impacts on human rights thus far. The Government has had the opportunity to consider the research that has been done and reflect on the experience of the policing of these regulations, yet it is not reflecting any such review in what is before the Oireachtas this week. We call on the Oireachtas to reassert its role and authority as the primary lawmaker in the State and its role in overseeing executive power. We would caution it not to allow such an extreme extension of powers without any modification or oversight.