Mr. Liam Herrick:

On the question of consultation, it is fair to say that there have been examples over the past year where there has been very positive consultation by the Department of Health and others with civil society in isolation. For example, there was very positive engagement by the Department of Health with civil society experts concerning the Covid tracking app and as a result, good privacy protections were built into it. This is an example of what is possible if the Department takes a wider view. As I said earlier, I agree with the Senator that if the Oireachtas Special Committee on Covid-19 Response had remained in place, it would certainly have improved the situation.

Regarding the constitutionality of what is being done, this is not a question about the proportionality of specific regulations. Certainly, there are some regulations that it is arguable were disproportionate and Ms Ansbro has identified some of them. A number of other ones have come before the courts, which have had to consider their constitutionality. The deeper question is whether the Government is acting within the rule of law when the Minister has been delegated such a broad power to introduce legislation which , in some instances, takes on the character of primary rather than secondary legislation, particularly when those regulations have a criminal effect - a penal provision dimension to them - and where we seen instances where the law has not even been laid properly before the public when it has come into effect. That is the area in which the Government has shown some poor practice. Whether that falls beyond the threshold of what is constitutional in terms of compatibility with the rule of law is a matter for the courts. It might be excusable in the short term but whether it is excusable in the medium term, which we are entering, is a question this committee should have to consider.