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.