Oireachtas Joint and Select Committees

Wednesday, 9 September 2020

Special Committee on Covid-19 Response

Covid-19: Legislative Framework Underpinning the State's Response

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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We are now back in public session. I would like to apologise for the fact that we overran slightly with Lord Sumption and Dr. Buquicchio of the Venice commission. I thank the witnesses very much for joining us. From the Bar of Ireland, I would like to welcome Ms Maura McNally SC, and chair of the council. On a personal basis I would like to congratulate you on your election as chair. I also welcome Mr. Joseph O'Sullivan, chair of the human rights committee of the Bar of Ireland. I welcome Ms Michele O'Boyle, president of the Law Society, and Mr. Ken Murphy, director general of the Law Society. From the Covid-19 law and human rights observatory of Trinity College, Dublin, I welcome Dr. David Kenny, assistant professor. I would like to welcome you all and thank you for your forbearance.

Before we commence the formal proceedings, I wish to advise the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. If you are directed by the committee to cease giving evidence in relation to a particular matter, you must respect that direction. You are directed that only evidence connected with the subject matter of these proceedings is to be given, and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise nor make charges against any person or entity by name or in such a way as to make him, her or it identifiable. Can I ask Ms McNally to make her opening statement and to limit it to five minutes, please.

Ms Maura McNally:

I thank the Chairman. Firstly I would like to thank the committee for the invitation to attend here, and on behalf of the Bar of Ireland, we would like to address certain issues which we feel are very pertinent to what has arisen out of Covid-19. In respect of the context of the legislative response, the members of the committee are well aware of the various responses they have been required to undertake, both in government and as Members of the Oireachtas, in addressing the pandemic, which is an emergency, in every understanding of that word, both legislatively and colloquially.

The need to address the emergency resulted in emergency legislation being required. It was enacted by the Houses of the Oireachtas both through pre-existing Acts and through statutory instruments and regulations.

The regulations and Acts that were passed all had to take into consideration the fundamental rights of the citizen. They had to take into consideration the Constitution and be aware of the European Convention on Human Rights. All statutes and statutory instruments and regulations had to work within those two parameters. Ministers, in enacting statutory instruments and in signing them into operation, had to be aware that those regulations had to put into play the principles and processes of the particular Act under which that statutory instrument or regulation was coming into being.

Necessary measures arose, and they had to take into consideration what we would perceive as the four parameters of ensuring the protection of those fundamental rights of our citizens and of ensuring that there was recognition of the European Convention on Human Rights in our Constitution. First, any Act, statutory instrument or regulation must be rationally connected to the objective for which the restriction was introduced. Second, it must not be arbitrary or unfair, by which is meant it must be based on rational considerations. Third, it must not impair the rights of individuals, and where it does, it must do so in the most limited method or manner possible. Fourth, it must be proportional. Proportionality is a major consideration and we say that word must be read in conjunction with the word "emergency".

There are also important checks in place on how Acts, statutory instruments and regulations are brought into being. Under statutes themselves and statutory instruments, these are discussed in the Oireachtas. For example, the Oireachtas, under section 5 of the Health Act, has the means and method of bringing regulations back before Members. There are also external checks. These arise in circumstances where individuals challenge the constitutionality of either the Act itself or of the regulation or statutory instrument. To do that they must prove their locus standi. They must show to the courts, which is the external body ensuring the protection of the fundamental rights, that they have grounds or a reason. Even during the commencement of the emergency, the courts addressed that question of whether fundamental rights were being breached when a case in respect of an application for leave to judicial review was taken by John Waters and Gemma O'Doherty. Even though we were at the commencement of the lockdown, the courts came into being, exercised their rights, heard that case and addressed whether there were grounds in respect of challenging the constitutionality of those regulations. There are checks and bounds. Ministers are aware that when they introduce a statutory instrument or regulation, they do so to enforce the Act and must do so within the parameters of ensuring the processes, principles and purpose of that Act are addressed. The statutory instrument itself must be in compliance and recognition of the fundamental rights, but there must be proportionality in respect of that.

It is clearly important that there are constitutional rights and procedures which must be protected and observed. One of those includes parliamentary democracy, one of the ground stones, if not the cornerstone, upon which the nation operates. Second, we have the Executive and, third, there are the external means of ensuring that persons do not operate with unfettered powers. In other words, they must operate within the law.

Law must be maintained during any emergency. To this end it ensures the rule of law and ensures that the fundamental rights of individuals are recognised and protected, both through internal regulation by the Oireachtas and external regulation by the courts.

On that subject, access to the courts is a matter of grave public importance and public interest. In order to ensure that the external checks and bounds represented by civil and criminal law are exercised appropriately there must be sufficient funding. I refer for example to the backlog that has built up in criminal courts. The courts are now trying to get back up and running within the parameters of the recognised regulations, statutory instruments and Acts. They are trying to operate safely but the lockdown has resulted in a backlog of cases.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I thank Ms McNally and ask her to conclude if possible.

Ms Maura McNally:

I am terribly sorry; I am known for speaking too much. One of the great external checks on statutory instruments and Acts is access to the courts, where persons can ensure their fundamental rights are recognised and not trampled upon. This check can also ensure the proportionality of measures taken at any particular time to the emergency we face. If the committee members would like to ask me any questions or if the Bar of Ireland can be of any further assistance to them, they need only ask. I thank the committee for this time.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I thank Ms McNally. I now ask Ms O'Boyle for her opening statement. We would appreciate if she could limit it to five minutes.

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.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I thank Ms O'Boyle and ask her to conclude. Her opening remarks have been circulated to members in advance. If there are any concluding remarks she would like to make, I ask her to make them now.

Ms Michele O'Boyle:

It is important for Ireland to continue to invest in the Courts Service infrastructure, staff and other resources. I would also like to refer to the number of small recommendations which we also included around attendance at court. Some courts, particularly the District Court, remain crowded. However, I take this opportunity to acknowledge the enormous and unrelenting work of the presidents of the courts in this endeavour to manage the numbers of people, particularly in the District Court where, by its nature, the numbers are large.

As a profession, we, like many others, have had to adjust, adapt and respond quickly to the unprecedented challenge posed by Covid-19. We have been particularly fortunate to have developed and maintained constructive working relationships with other stakeholders including the Judiciary, our colleagues at the Bar, the Courts Service, Departments and State agencies. We look forward to continued constructive engagement and collaboration across the myriad evolving issues which we know will continue to challenge all of us over the coming months and beyond.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I now invite Dr. Kenny to make his opening statement. I ask the witness to limit his statement to five minutes, bearing in mind that the paper he submitted has been circulated.

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.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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The first member to speak in this session is Deputy Devlin of Fianna Fáil, who has six and a half minutes.

Cormac Devlin (Dún Laoghaire, Fianna Fail)
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My thanks to all the witnesses for their opening remarks and statements. I will turn to Ms McNally first. She made a lengthy submission to the committee in advance of today and we appreciate that. In her opening remarks, she covered proportionality and necessity arising from the emergency. It is crucial that the balance is struck, especially now as we move away from the more stringent restrictions in society and try to reopen the court services. I have several questions for Ms McNally on this.

Access to the courts, including the civil and criminal courts, is crucial. I wish to hone in on the criminal aspect first. Delays have not really been experienced because of the summer months and the lifting of the restrictions I have spoken about. Will Ms McNally give the committee a flavour of the range and types of cases we are talking about and the breadth of the cases that are being held up at present? What kind of delay are we talking about? Are we talking of a delay of eight or 12 months or longer? Obviously, it will be all approximate, but I would appreciate any comments.

Ms McNally specifically referenced the Central Criminal Court. There were statements about the Circuit Criminal Court and the Central Criminal Court. I presume the same applies in respect of the Special Criminal Court. Will Ms McNally elaborate on that matter as well? Ms McNally referred to dates and said that the Circuit Court was returning in September - at some point this month. Has the date been released?

Ms Maura McNally:

I will start with the dates and the criminal courts. The Circuit Criminal Court recommenced on 31 August this year. Although September is considered part of the vacation period, the Judiciary and the Courts Service announced that the courts would sit during September. Hence, all practitioners are back and available, as such. The restriction is in respect of what is available. We have to look at the regulations that prescribe the numbers of persons who can be in any particular room or building. With that in mind, for example, let us consider the court lists for the High Court for personal injury. I will use the list for court 10 as an example. In a bracket after the list, the document states that the capacity is ten. That means ten persons. Only ten persons can go into that court. We have a judge, a registrar, a legal team for the plaintiff, a legal team for the defendant, a plaintiff, a defendant and expert witnesses. We are trying to fit the equivalent of a square peg into a round hole.

Everyone is doing their best to ensure there is access to justice. Let us consider civil cases involving a plaintiff with catastrophic injuries. The accident could have happened three or four years ago. The plaintiff is trying to get the case on and liability is in dispute. However, the resources are not in place. By resources, I do not only mean personnel but accommodation for the numbers of persons required. The unfortunate plaintiff may be no longer at work and may require specialist treatment because of injury. Such a person will have to wait even longer for the case to be heard and to achieve justice and a reward that will include monetary compensation for both the injury and to ensure that he or she gets the appropriate treatment, etc.

Bearing that in mind on the civil end it affects all civil cases. We are limited by what the infrastructure will physically allow. In respect of the criminal cases, criminal courts cases are moving out of Dublin because of the limited capacity of the Criminal Courts of Justice. For example, to try to address its backlog, it is moving to courthouses such as Castlebar. The knock-on effect of that in Castlebar is that the Circuit Court cases and the District Court that would normally sit there have to move and make room for those particular cases, which are murder cases, rape cases, etc. They are moving to sit in Kilkenny and in Cork from buildings that 12 months ago could accommodate every type of case. Under the regulations the courts must adhere to the 2 m distance and suddenly a building that could cater for 100 people six months ago can now only cater for 20. This is a logistical issue that we acknowledge and appreciate the Courts Service and Judiciary are trying to address. The only means of appropriately overcoming this is proper investment in the infrastructure, by which I mean the rental of buildings. If, for example, a court wants to sit in Carrick-on-Shannon, Drogheda or Mullingar, the courthouse will not be big enough to accommodate it and so the jury would have to be brought to a ballroom somewhere so that it can be impanelled. A safe room will also be required. All of this requires monetary investment in the court system.

The issue of backlogs was raised. The parties that can address this with greater accuracy are the Department of Justice and Equality and the Courts Service. We know anecdotally that, on average, there are between 900 and 1,000 criminal cases per year. Since the pandemic commenced, March until now, which is six months, there have been little or no sittings. On top of the 12-month backlog in respect of 2019 there is now an additional backlog arsing from the lack of court sittings during the past six months in which there were no court sittings. This has to be addressed, not only in respect of civil cases but in respect of criminal cases because from the criminal perspective particularly there are two issues. It is the rule of law that those who break the law should be appropriately brought to court and addressed and, also, the victims of incidents of crime are entitled to have their day in court. There are also persons who feel they are being incorrectly brought before the courts, who have the right to have their fundamental rights protected and the right to be defended.

Cormac Devlin (Dún Laoghaire, Fianna Fail)
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I thank Ms McNamara for her intervention. I am sure our witnesses are familiar with the proposal from a few years ago to have all of the District Court sittings moved to the Criminal Courts of Justice building. Thankfully, that did not happen to the extent to which the Courts Service wanted it to happen because we would be in a totally different situation now.

Ms O'Boyle touched on the remote court hearings and the success in that regard. We are all learning in this new era. Does Ms O'Boyle believe that remote hearings will remain post-Covid?

Ms Michele O'Boyle:

The remote hearings have been a success, in the main because of the willingness of all of the stakeholders to make that happen. We did have trial court hearings during the summer. Ms McNamara referenced the difficulties in terms of the infrastructure and the capacity of the courts. If we are to ensure access to justice going forward we will have to adopt a model of remote hearings. Currently, there are remote hearings for some call-overs of court lists. There are some matters that can certainly be dealt with which do not require a court hearing. Judges' time can be more usefully used in dealing with contentious matters rather than matters which could be dealt with remotely, including call-over lists and so on. Going forward, if there is appropriate investment in the correct infrastructure it is the way forward. It will assist in the access to justice and, possibly, cheaper running of the Courts Service.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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The next speaker is Deputy Martin Kenny from Sinn Féin. Deputy Pa Daly will come in on the second round.

Photo of Martin KennyMartin Kenny (Sligo-Leitrim, Sinn Fein)
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I thank the three contributors for their opening statements, which were most informative. I will first focus on the matters raised by Dr. David Kenny on the scrutiny or otherwise of legislation, where that has brought us and the difficulties arising from all of it. I believe the witness mentioned Australia, where regulations are published 48 hours before coming into effect, meaning there is a small period when people can examine them.

I suggest that regulations should have a type of "pre-regulation scrutiny", similar to our normal process of pre-legislative scrutiny. It would be appropriate for a committee of the Oireachtas to look at regulations as they came into play. We have seen this aspect has been the most difficult for the vast majority of people, who see regulations coming into effect where common sense does not apply. This has caused some upheaval.

I made the point in an earlier session that one of the key issues is to have unity of purpose, not just politically but among everybody in the community. This means all sections of society working together for the common good while recognising that certain aspects of their liberty are being denied or curtailed to some extent. At least if it is for a purpose, people will buy into that. However, what happens if regulations do not make sense to people? In places like my county of Leitrim, we have very low numbers of Covid-19 but people cannot even go to a football match. People do not see any sense in that. The regulations require a sense of scrutiny that should be public, so people can see it happening and know what is going on. They could understand the arguments and counterarguments. Do the witnesses wish to comment on that?

There is also the matter of courts. Many of the difficulties we have faced with the regulations around Covid-19 restricting people's movements and ability to carry on what was considered normal life have been exacerbated by the fact that so much of society and the systems out there were already under stress and in difficulty. We saw it in our education system, which had overcrowded schools and high pupil-teacher ratios. There were difficulties with school transport prior to this.

In our courts, people from impoverished backgrounds found it very difficult to access the criminal justice system. We have all come across cases in which people may have been entitled to take a case further. My colleague has mentioned how somebody taking a case because of injury is likely to settle early because he or she might not have the money to wait for the case to be heard. Such positions are being exacerbated by what is happening now and there should be an acknowledgement of that. This crisis also creates an opportunity to look closely at such matters and see how we can bring solutions that would be sustainable after Covid-19. The reality is we will have to learn to live with the virus and move forward in that way.

Dr. David Kenny:

I thank the Deputy. The jurisdiction I referred to was New Zealand, which requires as a matter of law that regulations be published in advance unless there is some pressing public health reason that this cannot be done. I agree that a form of pre-legislative scrutiny for regulations would be even better, if possible, although I am operating on the assumption this may be difficult when considering the time available for the making of regulations. Such a practice would nonetheless be ideal to encourage better understanding and public communication about the content of regulations. Availability and scrutiny in advance of implementation would help with that.

Again, following the example of New Zealand, the idea of defaulting regulations if they do not receive ex postparliamentary approval would be of benefit. There has been some improvement in our regulations. The most recent major set, the temporary restriction No. 4 regulations, as they might be called, were published on 31 August but they were not to come into force until 3 September. At the same time there was a long delay in what was essentially the public announcement of the regulations, as we were told they were coming in the middle of August but it took two weeks for them to arrive.

We have made some progress, but there is more progress to be made in terms of giving people notice that these regulations are being introduced and also acting swiftly to ensure we have the proper law in place for the restrictions that we want to enforce.

Ms Maura McNally:

Mr. Murphy has his hand up. He has not spoken so I should shut up for a moment.

Mr. Ken Murphy:

I know a member of the Bar is chairing this committee but I do not know if Ms McNally is chairing the session here.

I wish to comment on this in response to Deputy Martin Kenny and to express full support for that proposal. It is thematic in the Law Society's submission that the issue of being able to identify what is law and what is guidance and the difference between the two and the potential for sanctions for breach of the law is essential. There is confusion in this regard. I wish to clear up some confusion, if there is any, regarding a headline in The Irish Timesthis morning which seemed to suggest that it was a Law Society suggestion that the confusion between the two had been deliberate by the State. The Law Society is not suggesting that; it is not part of our submission. However, we think that just as the law always strives for certainty, inevitably in circumstances where there was an enormous need for speed of response, which the State rose to admirably during those crisis weeks and months, there was some absence of certainty in the capacity of the public to be able to distinguish what was law and what was guidance. We are not suggesting there was a deliberate confusion of the two by the State or any organ of the State, but we believe, and this is thematic of the society's submission, that for the future there should be greater clarity. We say in the submission there is a need for clearer communication as to what restrictions are being imposed, the reasons for them, whether they are intended to have legal effect and the sanctions for breaching them if they are legally binding. A consequence of an absence of that is confusion and, potentially, resentment due to that lack of clarity.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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Thank you, Mr. Murphy. Does anybody else wish to contribute on Deputy Martin Kenny's contribution?

Ms Maura McNally:

I wish to comment on two points. As the Chairman said in his opening speech this morning, we have two types of legislation. There is primary legislation, which is the Acts and statutes. Then there is secondary legislation, which is the statutory instruments or regulations. Anything thereafter is simply guidance. It does not have the effect of law. There can be no penal sanction in respect of a purported or alleged breach of guidance. You said that earlier, Chairman, and I wanted to emphasise it so there is no doubt about it.

I wish to return to the issue of the remote hearings. One of the basic precepts of our democracy and Constitution is access to justice. Not only must justice be done, it must be seen to be done. That includes in criminal cases the rights of victims to appear in court and address the court. It is the right of the parties to be present. Remote hearings are good in certain instances, but they are not the cure-all or panacea they are being made out to be. People want to be in court. There are certain instances where one must literally see the whites of their eyes, the verbiage and the behaviour of persons, not only what they are saying but how they are saying it. One needs to be able to read people and see how to read them. That is one of the things about having people, our citizens, in court. In most criminal cases members of the public are allowed into the court to see cases being run. It is similar in civil cases. Restrictions would arise in respect of minors being involved and so forth, but leaving that aside justice has to be done and has to be seen to be done. In paperless cases, the ones that require people to stand up and speak, be heard and to have their say in court, the remote hearings will not work in those instances in our submission.

Photo of Martin KennyMartin Kenny (Sligo-Leitrim, Sinn Fein)
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I thank the witnesses for their contributions.

The point that Ms McNally made about justice being seen to be done is vitally important. There are clear problems that remote hearings throw up for people. Traditionally people want to have their day in court and if they are not actually allowed to be in court, they do not feel that this has happened. They also do not understand why it is not happening. This bring us to a broader point regarding the Covid-19 situation. In reality, the public must have confidence in whatever regulations we introduce, whether in the form of guidelines or measures with penal sanction. That is at the core of all of this and building that public confidence will require a level of leadership from everyone, not just from politicians but from various other sectors too. In that context, I commend the Bar Council and various other agencies for the work they have done to try to build public confidence, bring people along and help people to understand what has to happen here and how we have to try to deliver for everyone.

The issue that comes to mind immediately is how the infrastructure that is in place can be improved. Improvements to the infrastructure is one aspect and another is changes to the regulations to allow larger numbers to attend in certain circumstances. In general as we move around the Houses of the Oireachtas, apart from when we are in our seats or speaking, we wear masks to reduce the danger of spreading the virus. If guidelines were stricter in that regard then perhaps some of the buildings which were described as small and cramped with limited access could be reassessed in the context of the provision of court services.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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I thank the witnesses for their presentations and submissions. I also thank them for the work they are doing within the legal services area. It is important that there are checks and balances between the Executive, the Legislature and the courts.

I wish to deal with the issue of regulation. As someone with a legal background I, along with a colleague, was involved a number of years ago in identifying the fact that there was no supporting legislation for a regulation introduced 20 years previously. As a result of highlighting this, emergency legislation was brought before the Dáil and Seanad and passed in three days. The President of the day referred that legislation to the Supreme Court where it was ruled unconstitutional. As a result, over €400 million had to be refunded to people. The regulation in question was in place for over 20 years and even though one element of the health service had received an opinion from a senior counsel advising that it was not in order, nothing was done for 20 years until we highlighted it.

In terms of what has occurred since March of this year, what do the witnesses believe we should do now in terms of the many regulations that have been put in place, not just in relation to health but in other areas as well? Do they feel it is time to look at the issue of regulation in the context of checks and balances and making sure the Executive has not exceeded its powers in bringing forward regulation without adequate scrutiny? When bringing in a regulation the Executive is very slow to put a time limit on it because it is afraid that the expiration of the time limit will not be flagged and issues might arise as a result. Therefore there has been a reluctance to include time limits on regulations. What is the view of the witnesses on this issue, given that the same level of scrutiny has not been possible in the Oireachtas over the last six to eight months?

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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Who should answer first, Deputy Burke?

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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The Bar Council please.

Ms Maura McNally:

As I stated and was outlined by the Chairman, the primary legislation is the Act and the secondary and supporting legislation is the statutory instruments and regulations. They are the means by which the principles, purpose and aim of the Act can be put into effect. The supporting legislation can never go outside the parameters of the Act if it is to be lawful. In other words, if an Act is about making sure all cars are blue, one cannot bring in a regulation or statutory instrument that states cars can be blue and white because the Act had a specific aim. The purpose of secondary legislation is to ensure the primary aim in the Act is effected properly, proportionately and within the bounds of the Constitution and recognised law.

The Deputy referred to a regulation from approximately 20 years ago. I think he is asking about how one reviews regulations. Although the Bar of Ireland does not have a view on that issue because it is a matter for the Legislature, it appears logical that the stakeholders and parties involved should be aware of the possible ramifications and repercussions of regulations as well as of primary Acts. In other words, if an Act is about cars and a regulation is to be brought in, then surely one should ask car manufacturers, licensed taxi drivers, car mechanics and others with an interest in the matter to consider it and make submissions. It is a matter for the Oireachtas as the Legislature to decide how it will do that. It must be done in a constitutional fashion and as a means of promulgating and pushing forward the original Act. I hope that answers the question.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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Does Ms McNally believe that due to the events of the past six months in particular, the usual level of scrutiny was not present and, as such, that all of the regulations brought in since 1 March, for example, should be listed in the next six months to see if there are any that need to be reviewed to ensure they do not give additional powers or procedures that are not covered by legislation? That is my real question. When there is an emergency situation, things can happen whereby not all the t's are crossed and not all the i's are dotted. Do we need to be careful in respect of such issues in this period?

Ms Maura McNally:

From the perspective of the Bar of Ireland, we are the party that would be engaged if there was a judicial review or a challenge to the constitutionality of primary legislation or secondary legislation. However, it falls to the Legislature when it comes to determining the framework and whether the Minister, in invoking or signing into law a particular statutory instrument or regulation, is correct and appropriate. As I stated, under section 5 of the health Act, for example, one has the right to bring matters back for review. A citizen or other interested party can bring a challenge to the courts, which is the other means of checking and ensuring that things are constitutional. I do not wish to go back over old ground by addressing access to the courts, justice and the infrastructure, but this is not a matter for the Bar of Ireland. It could be addressed by the Law Society or the Covid-19 law and human rights observatory of Trinity College, Dublin, which, unless I am mistaken, is carrying out a review of the various statutory instruments and Acts. From the perspective of the Bar of Ireland, it is not our role to do that.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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On the issue of remote hearings and, in particular, mental health tribunals and family law courts, are there issues of which Ms O'Boyle is aware which need to be looked at again with regard to trying to improve what can be done in some other court areas in respect of court hearings?

What level of improvements could be put in place to try to assist people to ensure that all proper procedures are being followed to ensure that there is fairness in how decisions are arrived at?

Ms Michele O'Boyle:

In remote hearings in family law matters, for example, there have not been contested hearings, there are matters around consent. It is a bit early to say what the issues are but I expect that the matters there are not unique to family law. Confidentiality is always an issue in remote hearings and ensuring that the platform is a secure and safe environment. Mr. Murphy might like to add to that.

Mr. Ken Murphy:

The remote hearings commenced in April on the initiative led by the Chief Justice, particularly in the Court of Appeal and the Supreme Court which are appellate courts. In many ways, these are more suited for remote hearings because they are more a forum for legal argument than for evidence. It has worked very successfully there. Among the issues has been whether the technology used for the remote hearings in the Supreme Court, High Court and Court of Appeal is as it should be because the technology being used was never designed for court hearings but for meetings. There were problems with it and the Law Society was happy to engage with the Bar, the Courts Service and others to try and set up better technological platforms. As the president of the Law Society has said, a lot of reviews of procedural matters are taking place by remote hearings now. We have followed the ongoing debate in the United Kingdom, which is having a similar experience to us, on how well remote hearings can work for evidence-based, witness-based cases. It is likely to be more problematic. The Law Society believes this is the way of the future for some cases. I agree with the chair of the Bar Council. I am in no way convinced that it is the way of the future for all cases. We should not go backwards now that we have come in an accelerated way to where we are.

One problem which the Courts Service suffers now is a cut in its income. Much of its income in the course of an annual financial year comes from certain types of applications which are made to court, such as special licensing applications. That income has been almost entirely lost. The Courts Service is suffering from deficiencies of income which is impacting its capacity to upgrade technology and, as the chair of the Bar Council suggested, to hire premises outside of court rooms to assist their use. There are real issues of investment both on the technological side and general support for access to justice in the courts system. I am sure that the Courts Service would make this point were it here, and I wish to make it on its behalf.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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We are out of time, I will bring the Deputy back in at the end. Deputy Leddin is next.

Brian Leddin (Limerick City, Green Party)
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I congratulate Ms McNally on her recent appointment. I will further the discussion begun by Deputy Burke on access to justice with remote hearings, particularly in the case of litigants who may not have Wi-Fi connections or those who have disabilities. Ms O'Boyle or Mr. Murphy might speak to this and I am also interested in the views of Dr. Kenny and Ms McNally.

Ms Michele O'Boyle:

While the Courts Service and the Judiciary have done a remarkable job in facilitating remote hearings using an infrastructure which in many respects does require reinforcement and upgrade, it is important that a stronger technological platform is made available to support the remote hearings.

It is also important that the Courts Service invests in technology in a technologically neutral way to ensure Ireland can take advantage of emerging technology in a rapidly changing environment.

Mr. Ken Murphy:

We could add that this is happening all over the world. Remote hearings are now happening in many other jurisdictions from which we can learn. The justice system should be investing in this because it is the way of the future - not for all cases and perhaps not even for a majority of cases, but for many cases. Ireland is seeking, with the backing of the Government, to present itself as a forum for the resolution of international disputes of all kinds, particularly major international commercial cases. Such disputes may have no particular connection with this jurisdiction but Ireland could be a useful forum for their resolution. As such, having cutting-edge technology in our courts is the way to go. The Law Society of Ireland unhesitatingly recommends having cutting-edge technology in our courts to facilitate remote hearings.

Ms Maura McNally:

The issue of remote hearings is a concern of the General Council of the Bar of Ireland. Deputy Kenny may not be aware that I am from Leitrim, but he will be aware that the broadband there leaves a lot to be desired. We have members in Donegal and we are lucky if we catch every tenth word they say. Broadband capacity, and the investment in the infrastructure required therefor, has been dismal. Broadband capacity outside of Dublin and certain built-up areas is limited. Capacity is Dublin-centric to a degree. If a practitioner is trying to run a case in Galway, Mayo, Donegal, Kerry or some of the islands off the coast, his or her chance of an appropriate remote hearing using the current technological capacity, which has purportedly been the object of investment, is limited to say the least. It is abysmal. It is fine once one passes a certain point on the M4, the M7 or the M9. I do not wish to be geographical but outside a certain area remote hearings just do not work. That applies to every type of case, not just those in which remote hearings could work, that is, cases with preliminary applications for which only the lawyers are needed and not the plaintiff or defendant. Even in those cases, the practitioners cannot be heard. The signal breaks up. When talking about the panacea of remote hearings, we have to look at the circumstances that actually prevail in this country.

Brian Leddin (Limerick City, Green Party)
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I thank Ms McNally. That is a very well-made and important point. Would Dr. Kenny take a particular position on the issue as an academic in this area?

Dr. David Kenny:

I fully agree with all the concerns raised by my colleagues but there is one point I would add. We will eventually have to give more careful consideration to the requirement for public access to justice, that is, the need for justice to be administered in public and for the public to see justice being done. It will be important for any system of remote hearings to provide for that need in an ongoing way. We must also consider that making court hearings available online, and therefore much more accessible, raises privacy concerns. I refer to the details of people's lives that can be aired in a court hearing. For that information to be heard by a few people who choose to come to court to hear it is quite different from making it available online on a lasting basis. We will have to consider those concerns if we wish to move permanently to online hearings.

Duncan Smith (Dublin Fingal, Labour)
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In our first session this morning there was a lot of discussion of the proportionality of the legislative response to the Covid-19 crisis. I would like to direct my question to Dr. Kenny first and then allow the other witnesses to answer.

Overall, how do the witnesses rate Ireland's legislative response in terms of proportionality to the seriousness of the pandemic?

Dr. David Kenny:

That is a great question. The legislation did a reasonably good job in a number of respects. It did a good job in giving enough power to the Executive in terms of having to respond incredibly quickly in a situation where convening the Legislature was potentially impossible. At the same time, as both my colleagues have said, it did so in a way that attempted to restrict that power, in particular with what we call principles and policies, which is the idea that the legislation guides Ministers in making regulations and does not leave them at large to do simply anything they wish. The Health Act, in particular section 10, has a really extraordinary power to make regulations that can affect people's lives, livelihoods and fundamental rights, but it attempts to direct the Minister in how to use that power. It has a very detailed list of considerations the Minister must take into account and a further list of things the Minister may take into account. In doing that, it attempts to direct and guide the use of those powers. The legislation did a reasonably good job in that respect.

Also in terms of individual regulations made under the legislation, Ireland has wisely erred on the side of trying to use advice rather than coercive measures, particularly for some of the more personal restrictions we have placed on people. The concern that has been raised a few times here is that this well-intentioned soft approach may occasionally have gone too far, where things were being treated as if they were law but in fact were just guidance. Overall, I think Ireland has responded reasonably well. Many commentators who have commented for the observatory in Trinity have agreed, but there is always scope for improvement and additional oversight. We have to be wary of how these powers are used in the medium term if these extraordinary measures are to remain in force.

Duncan Smith (Dublin Fingal, Labour)
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I thank Dr. Kenny. Do any of the other witnesses wish to respond to the question in the short time we have left?

Mr. Joseph O'Sullivan:

As we said in our written submission, the legislative framework, namely, primary legislation followed by regulation pursuant to it, seemed to be effective in bringing in emergency and important measures that were communicated to people. The question as to proportionality is ultimately a matter for the courts to determine in any particular challenge. It will depend on the circumstances in which any such challenge is made as to whether the regulations and measures are found to have been proportional.

Coming back to our initial point, while many areas of public life were effectively not able to work during the period of the pandemic, the courts were operational and did work. That was very important in the sense that any issue about proportionality or any challenge to the legislation or regulations could be brought before the courts, as did happen in the one High Court challenge there has been to date. It was important in terms of Ireland's response to the legislative framework and within that framework that the courts were available and continued to be so. It was very important and in that sense the Irish response was very effective.

Ms Michele O'Boyle:

I agree with my colleagues that in terms of the Irish response we did a reasonably good job given the unprecedented nature and scale of the crisis and the speed with which it has evolved.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I thank the contributors. I very much welcome the part of the Law Society's submission which suggests action should be taken to accelerate the end of direct provision and the suggestion in terms of ensuring the resources necessary for social distancing in overcrowded in housing conditions. That is very positive.

Following everything that has been said about confusion over legal requirements as against guidance, about the need for proportionality, if I understand correctly, and about the need for things to be clearly communicated and so on, the witnesses may know there is a motion in the Dáil to deal with section 31A of the Health Act, which gives sweeping powers to the Minister for Health, and the statutory instrument which relates to things like limiting numbers at gatherings in homes and various other restrictions.

Do the witnesses believe that those emergency amendments to the Health Act, and this statutory instrument, are problematic legally and that they sail close to the wind or beyond the boundaries they think need to be observed around legality, constitutionality and ensuring there is public trust in the laws and regulations being used to deal with Covid-19?

I would also like some clarity on the next issue. I very much believe that people should adhere to rational public health guidelines. Several of the witnesses made observations about the need for the Oireachtas committees to function, the legal system to function and so on. The right to protest is also a very important part of the functioning of our democracy. People who refuse to socially distance on protests and who do not wear masks are utterly reckless but I also believe that it would be completely wrong - and I am not even sure what the legal position is at the moment - to prevent protests where people socially distance and wear masks, given the importance of the right to demonstrate and to protest in a functioning democracy. I would like to hear the witnesses' opinions on that. What are the constitutional and legal powers now? Has the Garda the right to stop protests? I will give one example but will not mention the group involved. One group was planning a protest soon and were told by An Garda Síochána that if they organised a protest they would all be arrested. This was despite the fact they had made it very clear they were going to socially distance, wear masks and control numbers and regulate the protest. They were just told "No, if you go ahead we will arrest you." Has the Garda the power to do that? Do the witnesses believe this to be proportionate? Does it relate to any of the concerns the witnesses have expressed?

Mr. Ken Murphy:

I will deal first with the part of the question on public protest. Public protest is an essential part of democracy like many of the other things we are talking about here. If it is to be restricted then any restriction on it must be necessary and proportionate, as would be required by law. Whether that is the case or not in any particular instance then becomes a matter on which ultimately, on evidence, a court might have to decide as to whether a restriction on public protest, which is essential to democracy, was necessary and proportionate. I am not really expressing a view on that and I speak in general terms.

Part of the Law Society of Ireland's submission has under a heading a discussion on house parties, which is something else the Deputy referred to. The proposal to empower gardaí to enter private dwellings with a view to enforcement of Covid-19 regulations is of some concern to the society, as we have said in our submission. Criminal statutes that provide for powers of entry by gardaí into private dwellings generally have safeguards that require certain preconditions to be met. The Oireachtas has generally provided that powers of entry into private dwellings are reserved for the investigation of serious offences, for example, an arrestable offence, whereby the penalty for such an offence is a penalty of five years imprisonment or more. Again, without expressing any definitive view on it I conclude with a sentence from our submission which states that the society cautions against introducing powers which are normally reserved for the investigation of serious criminal offences for the purpose of enforcing what are, in effect, health regulations.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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With regard to SI 326 of 2020, which deals with issues such as the number of people gathering in private dwellings, does the Law Society of Ireland believe there is, at least, a question mark over the legality or the constitutionally of these kinds of provisions?

Mr. Ken Murphy:

Clearly, the Constitution provides protection for the dwelling houses or homes of citizens.

The circumstances in which that can be violated are highly restricted. Again, it becomes a question for argument as to whether the power being introduced and the circumstances for which it is being introduced amount to a necessary and proportionate response. I simply pointed to something that was in the submission of the Law Society of Ireland, which all Deputies received. It was no more than an expression of concern, not a definitive expression one way or another that we are for or against it. We are simply saying there are legal concerns about this.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Am I out of time?

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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Yes, but I will try to bring you in at the end, Deputy. The next speaker is Deputy Shanahan.

Matt Shanahan (Waterford, Independent)
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My thanks to our guests today. I will go back to the point raised some moments ago on the powers of gardaí. The main tenet coming across from the submissions is that we must have robust constitutional oversight, albeit some of the recommendations were probably not well understood early on.

The issue of house parties occupied a good portion of time in the national media yesterday, especially in college towns and cities. Obviously, we cannot blame young people for congregating and so on. However, if we accept the rationale that we have allowed emergency powers to be implemented on public health grounds, then why the reticence among the deputations in terms of giving a legal requirement to gardaí to be able to go in and disrupt such parties to try to stop the transmission of disease?

Dr. David Kenny:

We can speak to that and answer the previous query as well. It is important to say the most recent regulations do not provide for a power of entry. They make it clear that under the regulations it is not lawful to organise a gathering, but no criminal sanction is attached. It is not a penal provision. It has been described in some quarters as a civil offence, but it has been pointed out that this is not something really known to our law.

We were asked to consider that and whether it should be allowed. As the Law Society of Ireland representative has said, there are serious concerns in terms of the constitutional protection of the dwelling. We have talked a good deal about proportionality today. The key thing about proportionality is that context is key. If a severe public health need could be shown, something might be proportionate while it might not be if that evidence cannot be presented. That is why it is difficult to speak in general terms about this. It really depends on the evidence that can be presented for such an extraordinary power to be necessary.

What we can say is that there is certainly a credible constitutional objection to such a power of entry, not that it is certainly or definitely unconstitutional. It is for these Houses in debate to work out whether they believe that the evidence and threat is sufficient if that comes forward as a proposal.

We have been saying repeatedly that there is a need for oversight of regulations. Perhaps it is essential that the primary legislation allows for some broad regulations which may even include making a civil offence relating to the establishment of dwellings. However, we would need primary legislation to create a search power and then there would be Oireachtas oversight. We need Oireachtas oversight of these regulations as well because they are significant. Some of the most significant rule-making in this pandemic has been done by regulation. It is important that this oversight is in place.

Matt Shanahan (Waterford, Independent)
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I agree with Deputy Boyd Barrett in terms of the comments about direct provision centres. Has the Law Society of Ireland or any of the other legal people represented at the committee looked at trying to short-circuit the asylum process? One of the problems we have is that there are several people in the country who have been here for a long stay and who are trying to have their status recognised. That is leading to the increased numbers. Obviously, there is an increase in applications and in numbers.

Ms Maura McNally:

Everyone is pointing the finger at me. Unfortunately, that is not a matter for the Bar Council of Ireland or the Bar of Ireland. As I have said, it is up to the Executive and the Legislature. Then we have the final check, which is carried out by the courts. We need to consider the system and how it operates. If there is a fundamental breach of a person's rights in respect of the operation of the system, then the Legislature, during the course of its debates in the two Houses, has the power, authority and ability to address it. The outside check is through the courts, through a challenge or judicial review. The Bar Council of Ireland has no input into that.

Perhaps the Law Society or Trinity College, which have been carrying out the overview, may have an observation in respect thereof.

Dr. David Kenny:

I can briefly comment to say that it obviously is within the power of the Oireachtas, in legislating on a matter like asylum, as to whether the Houses believe there is an extraordinary need to expedite applications, set up a different system or even create some sort of blanket rule granting people a particular leave to remain or some other status because of the exigencies of the pandemic. Those are powers that the Houses have, and, I think, something that is worth considering in light of the problems that have emerged. However, it would be entirely for the Oireachtas to determine if that is something that is worthwhile.

Matt Shanahan (Waterford, Independent)
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I thank Dr. Kenny.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I thank Dr. Kenny. The next speaker is Deputy Durkan. Is Deputy Durkan going next or is it Deputy Carroll MacNeill? Yes, go ahead.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I thank the Chairman and I welcome the witnesses. I have a couple of questions. I have no legal expertise so I speak as a lay person. To what extent do the witnesses believe that people use their own common sense in determining what is best at a particular time in the context of the Covid pandemic? Is it reliable? I suggest that it is not and that recent events, particularly those in the past in the past month, have shown that people do not necessarily decide in favour of what might be in their interests or the interests of those around them. That is one question.

My other question relates to the point that has just been raised in the context of direct provision. I have with the cases of many people in direct provision over a long number of years. This issue has come to the fore in recent times. The Legislature may well decide on alternative ways and means of housing people, but that takes time. In the interim, what should legislators do? If, for example, people are living in close proximity in direct provision, how can we change that? In my constituency, almost 8,000 families on the local authority waiting lists, and at least double that number again, are awaiting private housing of one kind or another. In those two circumstances, do the witnesses have any advice to give as to what legislators might find it possible to do to accommodate both sets of people? I will take answers from anybody.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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Does Deputy Durkan want to specify who he would like to answer first?

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I am only going to use five minutes anyway so-----

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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Yes, but who does the Deputy want to answer the question?

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Whosoever wishes to respond. I am willing to entertain answers from all and sundry.

Ms Maura McNally:

I thank Deputy Durkan. I will jump in here; I might as well. Again, it will sound as if I am going over old ground from the perspective of the Bar of Ireland but direct provision is a system that has been brought into effect under statutory provisions and primary legislation, namely, Acts and statutes. The checks and bounds on that are via local government Acts, for example, and also through the Legislature, that is, the Dáil and the Seanad. Our role would only come into play if an individual brought a constitutional challenge. We would bring a constitutional challenge if briefed so to do. In the context of the how a system should be put into place or what should be involved in the statute - the primary Act - or the statutory instrument, that is not for the Bar of Ireland to dictate or anything of that nature. It is an Oireachtas issue and also, possibly, an issue at local government level. I will defer to my colleagues here.

Dr. David Kenny:

I thank the Deputy. To address his first point briefly, he spoke about the reliance on people's common sense. That is what we do when we issue public health advice - we try and persuade people to make the right choices. However, I also think that the reason we have a system of laws is because we do not think that people's common sense is always reliable and we sometimes replace it with a diktat about what has to be done. Since that is why we have legal regulation, both in the pandemic context and generally, it is very important that we try to use persuasion and advice to guide people's behaviour. We must also not be afraid to use the law to try control that, while always maintaining proportionality and respecting human rights and constitutional imperatives when doing so.

I will comment briefly on direct provision. It is worthwhile looking into this. Replacing direct provision has been a matter of significant discussion for some time. It would seem, perhaps, like it would be worthwhile for the committee to have some direct discussions with stakeholders such as the Irish Refugee Council and the Movement of Asylum Seekers in Ireland in terms of what might be done in the short term to remedy the situation. Unfortunately, it is beyond my expertise.

Mr. Ken Murphy:

I will respond to the comment from Deputy Durkan on common sense. It is an old joke but it is still true that the problem with common sense is that it is not all that common. Common sense can only be based on information. It depends on what information people are given so that they can make a judgment which they instinctively feel is a common-sense judgment. As Dr. Kenny correctly says, the law must underpin that ultimately because common sense will not be followed by everyone. We have all seen the circumstances where common sense has been flouted. That is where law comes in. It is to ensure some certainty.

The question of direct provision was raised. Again, I agree with the others. The reason there was such stunned silence from this room following the question is because we are not used to being asked such questions. It really is a matter for legislators. It is for those in the Seanad Chamber, not those in this room, to work out how direct provision can be ended. Deputy Boyd Barrett welcomed the Law Society of Ireland's submission. We have welcomed the commitment in the programme for Government to end direct provision.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I have no wish to become part of the advertising campaign but there is an advertisement on television which says that if we leave children to their devices, they might never leave their devices. It is an interesting advertisement. I agree that if we leave it to the common sense of people to make up their minds, they generally might make up their minds in favour of what suits their objects at a particular time. For that reason, it is unreliable.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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We will bring in Deputy Pa Daly and then Deputy Carroll MacNeill.

Pa Daly (Kerry, Sinn Fein)
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My thanks to the three people who made submissions. I will address my first question to Ms McNally. I congratulate her on her recent appointment as chairperson of the Bar Council of Ireland. She mentioned her concerns in respect of video hearings. Is it her view and that of the council that, for example, bail hearings, contested trials and even sentence hearings are not suited to video hearings?

The Bar Council of Ireland raised concerns about trial by jury. Ms McNulty is probably aware of changes in most circuits throughout the country. In the south-western circuit, for example, criminal trials have been moved to Limerick. The forthcoming trials in Ennis and Tralee have been abandoned so that there is now only one week of trials. Did this show a level of inflexibility on the part of the Courts Service? The decision was made in circumstances where the district courts have all reopened in their original court houses. Yet the Courts Service has not been flexible enough to hire other sports halls so that juries can be sworn in at these locations. Ms McNally said that justice has to be seen to be done. I presume she maintains that it has to be done in the local county if possible.

Ms McNally also mentioned judicial reviews. I know several judicial review proceedings were taken at the height of the lockdown. One related to someone who had been arrested under section 6 of the Criminal Justice (Public Order) Act, for something not defined as a serious offence under the Bail Act 1997.

That person was remanded in custody, on the basis that it was a serious offence. Is Ms McNally aware of many judicial reviews taken in the High Court to challenge small criminal or minor cases where custody was as a result? Is she also aware that there was a story, perhaps anecdotal, going around that the Judiciary was told to take a zero-tolerance approach to cases? I am not sure whether Ms McNally will follow me down that road. Did she, however, hear anything like that, anecdotally? Those are my questions.

Ms Maura McNally:

First, I will try and address the fifth part of the Deputy's question about whether I have heard, anecdotally, of any interference with the independence of the Judiciary. I have to say categorically, no, I have heard neither anecdotally nor in any other format.

Pa Daly (Kerry, Sinn Fein)
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Not from outside the Judiciary, but from within, was there any-----

Ms Maura McNally:

Certainly not.

Pa Daly (Kerry, Sinn Fein)
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Okay.

Ms Maura McNally:

I have heard nothing of that nature, and I believe firmly in the independence of the Judiciary, because without that, we will not have rule of law. We will not have democracy. It is one of the tenets of our democracy. In respect of the number of judicial review cases, again that is more an issue that can be addressed by the Courts Service.

On the subject of the Courts Service, the Deputy mentioned, and I mentioned it earlier, about the Criminal Courts of Justice, CCJ, moving rape and murder trials out of Dublin to venues such as Kilkenny, Castlebar, etc. We in the Bar of Ireland are very aware of the knock-on effect of that in each county. In the District Court, if a person wants to appeal his or her case, he or she appeals to the local county. For example, in my own county of Leitrim, the appeals would be to Carrick-on-Shannon. It is not affected. If a person is in Mayo, however, and has a case in Castlebar, the criminal trial is now going to be moved, on a circuit perspective, down to Galway. Is that appropriate? Does it take into consideration the travel capacity of individuals? Does it take into consideration the travelling of witnesses, etc? Again, these are issues that are, unfortunately, outside of the scope of the Bar of Ireland, but they are factual matters that should be taken into consideration.

Perhaps it is another example of where the stakeholders or parties involved, whether they be human rights organisations, the Law Society, the Bar of Ireland, victims' rights associations, prison guards, doctors or gardaí who have to give evidence, should all have a say in these decisions that are being made. However, as we have all heard, these are decisions that are being made in very constricted times, where some of the buildings just are not suitable. One cannot fit that square peg into a round hole. To do that, the hole has to be made bigger, and that means expenditure, investment and the hiring of alternative venues so that the cases can proceed. That is in respect of the Circuit Court cases.

Pa Daly (Kerry, Sinn Fein)
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Does Ms McNally think that the Courts Service could have been more flexible in hiring large sports halls or halls in hotels so that juries could have been sworn in there and trials could have continued, for example, in Mayo?

Ms Maura McNally:

That is actually what is occurring on the ground as we speak. For example, in the circuit from which I practise, namely, the midlands circuit, which involves the counties of Sligo, Roscommon, Longford, Westmeath, Laois and Offaly, the criminal trials that were in each county, such as in Sligo or Roscommon, are now being moved to either Mullingar or Tullamore, but the court facilities themselves are not big enough to facilitate the jury panel. By that I mean, if there is going to be a criminal trial, 12 people will get chosen to sit on that jury, but more than 12 people will have to be brought in. They will have to be summoned. On occasion, therefore, 100 people can be summoned, and if the assessment of the building says that there can only be 50 people in that building, then an alternative venue must be hired for those jurors. We are all cognisant of our own health and our own health issues.

The potential members of the jury are no different from us. We are all trying to wear our masks and stay 2 m apart. With all of that in mind, individuals are concerned about specific issues about their health. These are all practical issues, but these issues should be addressed by all the parties who will be or may be affected by it. We have no control over the hiring of that.

Pa Daly (Kerry, Sinn Fein)
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Is it the view of the Bar Council of Ireland that, wherever possible, jury trials should continue in their designated venues?

Ms Maura McNally:

That would be our assertion. It is very unfair. Let us take the example of Castlebar again. Let us suppose a person is an accused or a victim in Castlebar. The local gardaí in Castlebar have to give evidence. Suddenly, they all have to appear in Galway. Is it fair or unfair? That is not for me to determine, but it is a practicality of real life in trying to get court cases up and running.

We are all aware of the constraints faced, including the constraints in having financial capacity and expenditure and all of that. If we are going to have a successfully operating legal system, which is required to ensure the rule of law, then we must have this expenditure and investment. The committee members should listen to the parties who will be and are being affected by it. That is the position of the Bar of Ireland.

Pa Daly (Kerry, Sinn Fein)
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I have one question for Dr. Kenny. He mentioned the legal lockdown requirements which were introduced in March. Dr. Kenny referred to people being required to stay in their homes. He said that these were not, and never had been, legal requirements. Is Dr. Kenny saying that most or all of the stringent lockdown measures, including cocooning, were not legal requirements at all?

Dr. David Kenny:

I will clarify the reference in our evidence on that. What we meant to say - and what our written submission makes clear, I hope - is that it was advised that those over 70 years of age remain in their homes and the exemptions for leaving home, such as to shop and take exercise within a certain distance, were essentially said not to apply to those people. The idea was they should stay in their home even in circumstances where they may have wished to leave. That was never a part of our regulatory regime. That was never anything but public health advice. The opposite impression was given in communications on departmental websites, statements and press conferences. I appeared on the radio and clarified this at one juncture and I received multiple emails from people who had believed previously that they had been legally required to stay in their home. They were asking whether it was correct that they could go outside. Again, that is an elision of advice versus a legal requirement that we should try to avoid in all circumstances.

Pa Daly (Kerry, Sinn Fein)
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Dr. Kenny maintains that was an abuse of State power. Is that correct?

Dr. David Kenny:

I believe that is how I phrased it in my opening statement. If what happened - I believe it happened in that case - was that people were given the impression they were under a legal obligation that did not exist, then I believe that is something the State should not do. We mentioned in our statement that we are unclear on whether this was essentially adopted as a deliberate tactic. We have no evidence of that either way. What we said is that we were concerned given its repeated occurrence. We said that perhaps this is something that is being used as a tool to ensure compliance. We would be very much of that view that should not be done and that there should be other ways of achieving compliance.

Pa Daly (Kerry, Sinn Fein)
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Dr. Kenny maintains that there is no requirement for a constitutional referendum for remote hearings of the Dáil. Is that the case?

Dr. David Kenny:

We have written on this extensively. We maintain there is at least a significant doubt about any legal advice to the effect that remote hearings are unconstitutional. Essentially, three arguments have been made that the Constitution requires a physical place for the Dáil to meet, that privilege cannot apply to a virtual hearing room and that presence in voting means physically present. We maintain there is no standing interpretation from the superior courts of the Constitution to say that is necessarily true. We argue that it is quite possible to take a purposive reading of the Constitution, which is in fact rather flexible in terms of the Legislature meeting in other places, to say that virtual meeting rooms or some sort of hybrid sitting of the House would be entirely acceptable.

We believe it would be worthwhile for the Houses to pursue that course. If people wanted to take a constitutional challenge on that basis, then that should be done if it would allow the House to resume full and proper oversight.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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Deputy Jennifer Carroll MacNeill is next. Sorry for keeping you waiting, Deputy.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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That is no problem. Dr. Kenny's point is interesting because this committee was faced with the challenge of how we would meet, how we would take privilege, hear from witnesses and afford them privilege and so on. There is a practical difficulty with what he is saying, although it is interesting and I agree with him and I would love to discuss it with him in detail. There is a practical difficulty with making law and regulations under that guise, especially now. It relates to having certainty that they will have the effect that is intended, in particular at a time of public health measures. Would Dr. Kenny accept that this is a practical difficulty faced by legislators in the Houses of the Oireachtas?

Dr. David Kenny:

Absolutely, I believe there was legal advice suggesting that this would be problematic. I can see entirely why it would be seen as a risk that would have been hard to take. However, if a sitting of the House involved a vote of consequence or a motion or the passage of an Act and it had been done in that form toward the beginning of the pandemic, it could have been requested by the President to refer that to the Supreme Court for resolution of any constitutional doubts. If that had been done, we would now have a definitive answer and the Houses, potentially, could be sitting remotely in full and committees could be operating remotely in full. We believe there is too much doubt about that question to simply say that it is resolved and it cannot be done. Obviously, it is entirely up to the Houses and whether they wish to pursue that course. We believe it would be worth considering.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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It is certainly worth considering. These are questions this committee asked several times. At the end of the day, when we are stuck with the legal advice we have, it seems difficult. It would be nice to be able to pursue these things in a speculative way to try to get better answers, but of course that is not an option for us at the moment.

I will go back to my other questions. Deputy Daly raised questions about those over 70 years of age. Like other Deputies and other Members of the Oireachtas, I received multiple communications about that, in particular about cocooning for those over 70. It was clear to me from reading the communications that the message was advisory and that it was a request on the basis of the particular public health impact and the particular risk to individuals over 70 or those with long-term illnesses of different kinds. They were being asked to do it for their own good and well-being. It was based on the best science and advice available. Neither were they in any way required to stay at home nor would they be penalised for doing so. That was the subject of all the correspondence that I went back to my constituents with.

I appreciate that at the time it was difficult for everyone to distinguish between the different categories of law, regulations and guidance, as we have talked about today. Moreover, there was and has been so much information of different kinds with different nuances in the period since the initial lockdown that to distinguish what was advice and what were rules was difficult. That was a clear communications challenge. It remains a communications challenge as we change the guidance necessary to try to keep the balance of things open as much as possible and yet try to protect people's health and keep the economy going.

I wish to ask the Law Society of Ireland one question in particular. I thank Mr. Murphy and Ms O'Boyle for coming. The first page of the submission states that while many aspects of the response were successful, there was a need for clearer communication on restrictions. Can the Law Society of Ireland representatives give me some examples of the types of things the society was referring to? We have discussed the examples of the measures relating to those over 70 already, but is there anything else?

Mr. Ken Murphy:

The measures for those over 70 were the first ones I was going to go with. I really have to look back over it. It is more in the nature of a general statement because of the profusion of announcements that were being made at a time of crisis. We have to bear in mind that this is also a period when people's antennae are over-extended in terms of the amount of information they are getting. There is also the slightly excitable nature of the audience who are listening.

We are making largely a statement of principle to the effect that what is law and what is not law needs to be distinguished. It is a communications challenge. This is one of the points I was making earlier and committee members will see it as thematic in our submission. We have been supportive of the State and we believe the State did a good job at that time.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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It is an ongoing communications challenge.

The committee heard evidence from behavioural scientists and other public health experts. One of the scientific experts questioned the common sense behind the requirement for a €9 meal and how it protects the public, as have many other people, but the behavioural scientists from another university responded that when a person is engaged in eating a meal in that way, his or her behaviour changes and he or she is less likely to interact and so on. The nuance of all of the communications is easy to miss at every level. That is certainly the case in the House and among scientists as well as at every other level. Dr. Kenny referred to things being possibly delivered, but the Law Society is not suggesting that it was a deliberate strategy on the part of the Government.

Mr. Ken Murphy:

I hope I was clear in my earlier comment that the unfortunate headline relating to an article in The Irish Timessuggested that was a view of the Law Society. It is not our view. We are not suggesting and have no evidence to support a suggestion that this was deliberate. It was the fog of war and something that was inherent at the time. There was a time when lawyers, who might be expected to be able to more easily to distinguish law from guidance than lay people are, were asking me whether certain things were laws, regulators, guidelines or just the opinion of a Government spokesperson. We are not being retrospectively critical of what happened. Rather, we are saying there may be lessons to be learned for any future circumstances similar to these. It is to be hoped that we will never have to face such circumstances. These circumstances are unprecedented in the history of the State. We are saying that in future communications, greater emphasis should be placed on distinguishing what is law, with sanction attached to it for breach, and what is not law but, rather, guidance.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I totally agree. We have all learned a significant amount about the way in which this is communicated. Every time we get an answer and explanation about the balance relating to choices that have to be made in terms of reducing contacts generally in the community, we learn more about it. People deserve to be given the respect of knowing the reason for different things but, as Mr. Murphy stated, there is a significant amount of information.

I congratulate Ms McNally on her recent appointment as chair of the Bar of Ireland.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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The Deputy is slightly over time. If her question is short, she may continue. If it is a long question, I will come back to her at the end.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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That is no problem. I will come back in later.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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There are several people who I stated that I would bring in a second time. Before I do so, I wish to ask a couple of questions.

On measures relating to those aged over 70, I distinctly remember hearing advertisements on RTÉ, the State broadcaster, which indicated that such people may leave their homes. This was after the first round of restrictions. If the message at that point was that people may leave their homes, the clear implication was that, until then, they had not been permitted to leave their homes. It is a matter of interpretation. I have met many people who are over 70 and who thought they were precluded from leaving their homes. They thought it was not just guidance but, rather, that they were precluded from so doing. That said, maybe they had a duty to inform themselves better and seek out the regulations on the Internet or elsewhere.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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On that point, I am just suggesting that-----

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I agree that there was a difference of opinion. Some people thought that they were required-----

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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It was the case that people should do so, not that they must do so.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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Some people thought that they must do it.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I agree. I took the opportunity to correct that and state that it was a case that people should do it, not that they must do it.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I did not mean to digress. I thank the Deputy for responding.

Areas affected orders were provided for in the initial amending legislation. This enabled the Minister - I am paraphrasing because I do not have the legislation in front of me - to make an order declaring an area of the State to be an affected area if there was known or thought to be sustained human transmission of Covid-19 in that area. On 7 April, the Minister made a regulation in respect of the whole country. I refer to the amendment to the legislation. A subsequent section states that for the purposes of the subsequent section, but not the overall Act, a Minister could declare all or part of the State to be an affected area. This measure was not for Covid but, rather, for other notifiable diseases. The Minister made an order declaring that the State, being all areas and regions thereof, was an affected are and, on that basis, he could introduce various regulations restricting various activities. Is there an issue with declaring the entire State to be an affected area if there is no express provision for that in the section?

Second, and perhaps more important, is there a duty to review that regulation? On 7 April when the Minister made the order, it may have been thought that there was sustained human transmission in every area of the State, although when I asked Dr. Glynn about it, he did not really answer, but it was clear in mid-May that in some counties there had been no detection of Covid for a month. Is there a duty to review that order going forward or could one almost state that the whole country will be an affected area forever? That question is addressed primarily to Dr. Kenny, but if the representatives of the Law Society or the Bar of Ireland wish to come in, I would be happy to hear their views.

Dr. David Kenny:

My reading of the section is that it is acceptable for the Minister to declare the whole country to be an affected area or, essentially, to apply measures nationally if, in the judgment of the Minister, that is what is necessary. We have spoken at length today about proportionality and it being based on circumstance. It may be that at a particular time a proportionate measure is taken to apply certain measures to the entire country but that at a later time, perhaps because of the way the spread of the disease has developed in practice or because of increased understanding about the risks of spread between various areas, that measure is no longer appropriate and measures should be more tailored and localised. Obviously, that is what we have moved towards in the recent stages of the pandemic. This is why it is important that the legislation and the regulations made thereunder should be quite strictly time limited to periods that are as short as possible and be subject to review. For example, if it was decided that certain measures should continue to apply nationally, there must be a review at regular intervals to examine whether the national measures are appropriate or whether more specific and localised measures are necessary. The matter is best addressed with the understanding that any extraordinary measure taken in the context of the pandemic needs to be time limited and reviewed by the Executive and the Legislature at some fairly proximate juncture to ensure that the decisions that are made remain proportionate in the light of subsequent changes.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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Section 5 of the Act states that any regulation made may be annulled by the Dáil within 21 days. That has been interpreted to refer to sitting days. If the Act is to be rolled over, Dr. Kenny would recommend some type of regular review of the regulations that have been made such that they would come before the Dáil regularly and not merely that the Dáil might annul them within a certain period, but if it did not do so, the regulation would remain in force.

Dr. David Kenny:

That is precisely my point. I would recommend two approaches. The first is that the time for which regulations apply should be more limited. There has been improvement in that regard in recent regulations For example, the original set of face mask regulations, which apply in respect of public transport, run from July to October, but I think it would be preferable to have a shorter period before the regulations expire or need to be renewed. I would also suggest that there be an active requirement that any regulation should have to be laid before the House to be affirmed within a specified number of sitting days. The reality is that, as a result of the demands on legislative attention, calling regulations back to deal with their annulment often does not result in the holding of hearings or the regulations undergoing scrutiny. I appreciate that would be an extra demand on the Houses in a period when their time is limited, but it would be a great benefit in terms of oversight of the regulations that are being made.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I thank Dr. Kenny. Do the representatives of the Law Society or the Bar of Ireland wish to come in on that issue? If they do not, I will move on to my next question.

I have been somewhat confused by the most recent regulations relating to a limit of six people from three households meeting and all of that. To what extent do those regulations apply to religious worship and religious ceremonies such as baptisms, communions, confirmations, mass, funerals, etc.? As funerals were explicitly mentioned in previous regulations, one would have to assume that it is hoped to bring in religious worship, of which funerals may be a type.

The Irish Constitution guarantees freedom of worship to everybody, subject to limitations in respect of public order and morality. Public order obviously has a wide meaning but Article 9 of the European Convention on Human Rights provides that freedom of religion can be limited based on public order, public morality or public health. It appears that the Irish Constitution does not explicitly provide for freedom of worship to be limited on the basis of public health. In those circumstances, do you think that the regulations applied to limiting what churches could do in acts of public worship as opposed to some of their other activities and, if so, was that lawful? My question is primarily directed to Dr. Kenny but if the witnesses from the Law Society or the Bar Council wish to respond to it, I would welcome their views.

Dr. David Kenny:

I wish my colleague, Professor Oran Doyle, was with me because he has written substantially on the question of the toing and froing of restrictions on religious services which were strict at one point and then almost entirely relaxed. I have not investigated the current set of regulations for what they do in respect of religious services. If the understanding that they are restricted is correct, there is certainly an open constitutional question as to the validity of those restrictions given that there is a free practice right in the Irish Constitution. At the same time, public order in the Constitution as a limitation on rights is fairly broadly defined and I suspect that it would be interpreted as including control of public health rather than public order in the strict sense of disturbance. I think there is a good case for public order allowing a restriction in that case but, again, it would be subject to a proportionality test in the courts if it were challenged.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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Those are my questions. I said I would invite Deputies Boyd Barrett, Colm Burke and Carroll MacNeill to contribute again. Deputy Pa Daly is also welcome to contribute. I ask everybody to be brief.

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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My main question refers back to the issue of the right to protest. However, I wish to say in passing that we should be careful about the use of the term "common sense". The great Italian Marxist intellectual, Antonio Gramsci, pointed out that there is a big difference between good sense and common sense. It was common sense at one time that the world was flat but good sense said it was round. We should be very cautious because many common sense truths turn out to be not very good sense when one looks beneath the surface or applies scientific or intellectual rigour. In addition, while any institution, judiciary or otherwise might strive for independence, to simply assert its independence is not helping to uphold its credibility because an intellectual examination of that assertion would say no human being is fully independent or insulated from social, economic or other influences.

My main question seeks clarification of what I have heard from Dr. Kenny, the Law Society or anybody else who wishes to comment. Does the Government legally have the right to prevent protests at present? I stress that any protest that occurs should be socially distant and people should wear masks. As well as the legal position on that, given the constitutional freedom of assembly and so forth and given that the witnesses say it is very important that the Dáil and its committees function and that the Judiciary functions in this situation, how important do they think it is that the right to freedom of assembly to protest and so forth be protected in this context, albeit with adherence to social distancing guidelines?

Dr. David Kenny:

Yes, it is possible for the Government to regulate protest under the powers currently given to the Government under the Acts. There is then a question of whether that raises a rights or constitutional concern because there are clearly speech and assembly concerns with the restriction of protest.

In terms of what my view would be, it would be desirable if the regulations that were being made specifically addressed if protests were possible and in what circumstances, perhaps making very clear what guidelines need to be followed and then making any protest outside of that something that the regulations prohibited, if it was thought necessary to introduce prohibitions. I note that this is one of those areas where it is problematic that regulations can be made and there may be an omission of something like this and the House does not necessarily get input into that. It could be that in future legislation or amending legislation some reconciliation of a right to protest with future regulations that might be made could be put in primary legislation as something that the Minister would have to consider or bear in mind in introducing new restrictions.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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I wish to refer to an issue that arose in the last few weeks. In New Zealand, notice of 48 hours is given of a change in regulations. In Ireland, regulations were introduced relating to gatherings. The Irish Hotels Federation wrote to the Department of Transport, Tourism and Sport and that Department replied saying it had no correspondence from the Department of Health. The Irish Hotels Federation then notified a hotel that it should stick to what was the procedure in place up to that point. The hotel followed through on that. The difficulty that arises is that it is clear there was a breach because the regulations were made on a Tuesday night and the hotel event was held on the Wednesday night, yet there was an exchange of correspondence in which a Department advised a national body. It could also happen with a farming organisation. The farming organisation could write to the Department of Agriculture, Food and the Marine and that Department could reply that it has received no correspondence from the Department of Health. Where does that leave representative bodies in dealing with Departments when they get such replies? Does it not leave those representative bodies wide open to be brought into any court proceedings that may arise as a result of the advice they gave?

Ms Maura McNally:

I will respond here briefly. Even though the Bar Council of Ireland does not have any submission in respect of this matter from its perspective, there should be transparency and clarity in respect of all legislation, both primary and secondary. As to whether there has been a lacuna or a falling down in that respect, that is a matter for other bodies to address. However, there should be transparency and clarity.

Dr. David Kenny:

I will briefly speak to that. There is some protection in terms of when regulations are not yet formally notified in theIris Oifigiúil.The Statutory Instruments Act 1947 will prevent a prosecution on foot of anything contained in that regulation, so there is formally a legal protection for that situation. At the same time, the point being made is extremely good, which is that it leaves people in an incredibly difficult situation in terms of what to advise members of their representative body or people who come to them seeking advice. It is a matter that must be dealt with and publication of regulations could be significantly improved.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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Would there not also be a responsibility on the Department with which it corresponded? The Irish Hotels Federation wrote to the Department with responsibility for tourism. Would there not have been an obligation on that Department, if it did not have the information, to advise the federation that it should correspond directly with the Department of Health? I believe the regulation was made on Tuesday evening and it was Friday before the Department of Transport, Tourism and Sport referred back to the Irish Hotels Federation informing it of the new regulation. That was a gap of 72 hours and as a result there might well be a situation where a hotel is left in a wide open position because of the advice it got from its representative body.

Mr. Ken Murphy:

I will comment on that. The New Zealand principle that regulations are clear and the text is settled and promulgated ten days in advance of them coming into effect is a wonderful proposition.

There is a risk of the best being the enemy of the good. This is a fast-moving and fast-evolving situation. I have some sympathy for Governments that have to act on evidence and make decisions relatively quickly and announce them quickly. Deputy Colm Burke appeared to have a particular instance in mind in the example he gave. If an entity has a concern as to whether or not it is going to be compliant it will, of course, look to its representative body but it may also have an obligation to look to the law and public announcements about the law. It is difficult to keep up with the number of changes that are taking place and also - this goes to our thematic submission in regard to legal certainty - to distinguish between what is law, what is guidance and what is somebody's opinion. The traditional view that the law takes is that ignorance of the law is no defence.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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On that point, we have been examining all of the different changes and nuances in this committee. The three-week period is important. It takes two weeks potentially for symptoms to show, which needs to be borne in mind as the economy opens up and people behave differently. It also takes that long just to get the evidence. There is then a very short window for making decisions, implementing them in whatever form is appropriate and managing to communicate them before they take effect again. It is a difficult, practical problem because the intent is always to try to keep people as safe as possible and society as open as possible.

My question is on the court processes from the perspective of the Law Society and the Bar Council. I congratulated Ms McNally on her election as chair of the Bar Council, the second appointment since 1979, but Ms O'Boyle-----

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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The Deputy said it is the second appointment.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I meant to say the second female appointment since 1979. I should say it slowly because it is so important. The Law Society has had many more female appointments but the election of Ms O'Boyle is excellent.

On the substantive point, I note that much of the attention, particularly in the Bar Council submission, relates to the conduct of criminal proceedings which, of course, are very important but an area of particular concern during the pandemic has been domestic abuse. Family law proceedings and the enforcement of court orders in family law proceedings in regard to access and custody, has been particularly difficult over this period. I ask Ms McNally and Ms O'Boyle for their observations on how the process is working from the perspective of the members who are practitioners in that area and what has been happening for them and for families impacted by the different issues.

Ms Maura McNally:

On behalf of the Bar of Ireland, I know through the Family Lawyers Association of Ireland, which is chaired by one of our members, and through various submissions made on behalf of family lawyers, which includes both barristers and solicitors, that the family courts have been hearing cases but only cases specific to urgent matters. Obviously, there is a choice to be made in regard to which can be heard first but the focus is on those that are of greatest concern. Constitutionally, children are protected so any childcare issues such as their health and well-being, which would include financial support, are all being dealt with as urgent cases. Unfortunately, a backlog is building up in that area in respect of other matters, as is happening in all other civil walks of law and, as I said, in criminal matters. When it comes to children or people with disabilities and-or a specific urgency such as domestic abuse, violence or anything of that nature, the courts and practitioners are dealing with them. They made submissions at the commencement of the Covid-19 pandemic to ensure that would happen.

Ms Michele O'Boyle:

From the Law Society perspective, the committee will be that I am a practitioner and I work in the area of family law and in other areas. It is certainly the case that from the very outset family issues and issues concerning children were considered priority issues. Colleagues have worked collaboratively to ensure that those matters were dealt with expeditiously. Equally, the courts and the presidents of the courts worked hard to ensure that those matters were brought before the courts and addressed and that orders were enforced. I recall that the president of the District Court issued a direction regarding the matter when there was some concern raised about enforcement orders and whether or not parties to proceedings might use the opportunity of the pandemic not to fully comply with orders where there may have been an uncertainty around if they could or could not see their children.

That was addressed very quickly. From a practitioner's point of view, family law matters were considered important and urgent and were treated as such by all of the stakeholders.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I accept what Mr. Murphy said about ignorance of the law being no defence, but would he accept the point made by both speakers in the previous session, Dr. Buquicchio and Lord Sumption, that one cannot seek to prosecute legally for breach of a regulation unless and until that regulation has been published and is accessible to those whom it seeks to regulate?

Mr. Ken Murphy:

I did not hear the submissions referenced by the Chairman so I do not have the benefit of them. In principle, it is consistent with the theme of much of what we have been saying here. As mentioned in our submission, there 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 by law. In the absence of such certainty and the absence of the availability of information in regard to that law, clearly an argument can be made if the law has not been promulgated and made transparently available for people to access. The principle that ignorance of the law is no defence is still a long-established principle of law.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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The point Mr. Murphy is making is that the law has to be accessible.

Mr. Ken Murphy:

Yes, that is true. Ignorance of inaccessible law might be a defence.

Photo of Michael McNamaraMichael McNamara (Clare, Independent)
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I thank Mr. Murphy, Dr. Kenny, Ms O'Boyle, Ms McNally and Mr. O'Sullivan for joining us today and I apologise for the slightly later than anticipated start to the session.

Sitting suspended at 3 p.m. and resumed at 3.30 p.m.