Oireachtas Joint and Select Committees
Wednesday, 9 September 2020
Special Committee on Covid-19 Response
Covid-19: Human Rights and Civil Liberty Considerations
I welcome representatives from the Irish Human Rights and Equality Commission, Free Legal Advice Centres, FLAC, and the Irish Council for Civil Liberties, ICCL, who are here to discuss human rights and civil liberty considerations. From the Irish Human Rights and Equality Commission, I welcome Ms Sinéad Gibney, chief commissioner, and Ms Sunniva McDonagh, member of the commission. From FLAC, I welcome Ms Eilis Barry, CEO, and Mr. Christopher Bowes, legal officer. From the ICCL, I welcome Mr. Liam Herrick, executive director, and Ms Doireann Ansbro, senior researcher and policy officer.
Before we commence the formal proceedings, I wish to advise our guests 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 they are directed by the committee to cease giving evidence in relation to a particular matter, they must respect that direction. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they 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.
I ask Ms Gibney to make her opening statement. I ask all witnesses to please limit their opening statements to five minutes to allow time for questions and answers.
Ms Sinéad Gibney:
I thank the Chairman and members for the invitation to be here. While this marks the commission’s second appearance before the committee, it is my first opportunity, since being appointed as chief commissioner in July, to engage directly with Oireachtas Members. I am joined today by my fellow commission member, Sunniva McDonagh.
I am conscious of time. I will not cover the commission’s powers and role, except to say that it has a statutory mandate to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality. On behalf of the commission, I will make three specific points today relating to the Covid-19 legislative framework, human rights and equality on emergency powers, legislative vulnerabilities and tools to safeguard rights.
I shall first address the emergency powers relating to Covid-19. The key message we want to communicate to the members of the committee, as legislators, is that emergency legislation should be the exception, not the norm. Where emergency legislation is used, it must meet international human rights requirements of legality, necessity, proportionality and non-discrimination. It is also essential that, once introduced, there is effective oversight of how new powers are implemented to ensure that they continue to meet these standards.
The recent emergency legislation was introduced under the State’s ordinary constitutional structure rather than any formal emergency status. While not recommending the need to declare any formal state of emergency, we do need clarity on what emergency legislation means in terms of legislative practice, monitoring of implementation and its active oversight. The commission has consistently raised the need for more detailed, disaggregated data on the implementation of emergency powers afforded to An Garda Síochána in the course of this pandemic. After all, how can Members of the Oireachtas, as lawmakers, know if emergency powers are being enforced in line with human rights and equality principles if they do not have access to information about the people most affected by them? This could include, at a minimum, information about ethnicity, age, gender, disability and geographical location.
The second point is that the pandemic has exposed problems in our existing legislative framework when it comes to the ability of all people to assert their rights. For those among us who have disabilities, for example, a pandemic, with its restrictions on movement and personal liberty, raises the spectre of a return to a more institutionalised past. It is critical that legislation is enacted without delay that will strengthen human rights protections for this group, such as the Disability (Miscellaneous Provisions) Bill.
It is also essential that legislation which protects people rendered more vulnerable by their circumstances and which shines a light on places of detention is prioritised, including the commencement of the Assisted Decision-Making (Capacity) Act 2015 and the reform of the Mental Health Act 2001.
A glaring legislative gap is the ratification of the Optional Protocol to the Convention against Torture, OPCAT, which Ireland signed in 2007, and which is achievable by passing the inspection of places of detention Bill. This would also formally establish Ireland’s national preventative mechanism. This mechanism provides a structure through which public bodies that inspect places of detention and institutions can come together to identify human rights concerns and propose ways in which potential human rights violations can be avoided and prevented. The United Nations Subcommittee on the Prevention of Torture says that an effective national preventative mechanism is the most significant single measure a state can take to prevent ill-treatment in places of detention occurring over time. These legislative gaps are not cost free, and the reason they are not is because they deliver real and meaningful impact to people’s lives. We recommend that they be resolved by the Government and the Oireachtas as a matter of urgency.
We must look at what legislative tools we already have to safeguard rights during this crisis and in the future. Since 2014, all public bodies have a statutory obligation to implement the public sector equality and human rights duty. If a public body provides a public service, from delivering healthcare to shaping new laws, it has an obligation to identify how what it does might impact on the equality and human rights of its service users, the people affected by its policies, and its staff, and to take positive steps to protect human rights and prevent discrimination. We recognise that public bodies are innovating in the delivery of their services and developing new services to address the challenges of Covid-19. By implementing this duty, they can proactively avoid new and possibly unforeseen discrimination and raise institutional consciousness of the rights and equality of the people who use public services and those who deliver them.
The pandemic has exposed underlying rights and equality issues that have made it a much more challenging experience for some groups and communities. It also has exposed a solidarity and an appetite to improve opportunities and outcomes for those people. The public sector duty and the other legislative improvements that I mentioned can help us to build that just and compassionate Ireland so that for future crises, and indeed simply for the future, we take better care of all members of our society.
I pay tribute to the work of this committee. It has provided critical democratic oversight of the impact of and response to this pandemic. The Irish Human Rights and Equality Commission remains, as ever, ready to offer any assistance we can to the Oireachtas.
I thank Ms Gibney. On behalf of my colleagues I thank Ms Gibney for her kind words. I invite Ms Barry to make her opening statement. I remind witnesses that their contributions have been circulated in advance, so I ask that they limit themselves to five minutes, please.
Ms Eilis Barry:
I thank the Chairman. FLAC very much welcomes the opportunity to make this submission to the special committee.
We believe that access to justice is even more important in a pandemic. Our information line, which provides an insight into the acute and stressful situations that people are facing, has been overwhelmed with queries. These queries highlight the acute need for information, advocacy, legal advice and legal aid in areas of law that most impact on people and groups who are vulnerable and disadvantaged, and areas of law that largely are not dealt with under the underfunded Legal Aid Board with its strict means test, delays and exclusions. The Legal Aid Board has said that it expects a surge in demand for its services once normal practices resume in the courts. The Courts Service was under-resourced since before the pandemic and is now facing significant additional delays. FLAC is very concerned about the difficulties claimants will face in accessing legal assistance, and this will be compounded by the inevitable growing delays in the courts and the quasi-judicial tribunal system.
While we very much welcome the move to online courts, it has to be seen only as a partial solution. It will be unsuitable for certain cases and perhaps for people who have literacy or language issues and those with certain mental health conditions. The digital divide also needs to be tackled. Where possible, we believe that hearings should be held safely within the existing physical infrastructure, but this will need to be resourced. The Courts Service and the Legal Aid Board are essential to the administration of justice and the rule of law, and they need to be resourced accordingly. Access to justice needs to be factored into Government responses to the pandemic.
The Covid pandemic unemployment payment, PUP, introduced in March was a vital response to a critical situation. However, it is regrettable that there was no primary legislation introduced for a period of five months. Many of the issues which arise in the context of the Covid PUP were due to the lack of clarity regarding eligibility criteria for the scheme and its legal basis. These issues were exacerbated by unclear and conflicting information published by the Department of Employment Affairs and Social Protection as to the eligibility criteria for the payment, which changed over the months. Amendments were made to sections of the Covid PUP web page on gov.iesetting out the eligibility criteria at least seven times between March and August of this year. These changes included the addition of criteria to the effect that claimants were required to abide by certain "holiday rules" while in receipt of the payment and to "genuinely seek work". In FLAC’s submission, these criteria cannot be considered as having been conditions for receipt of the payment prior to 5 August.
In relation to the reported actions of departmental officials at ports and airports, it appears to FLAC that social welfare inspectors have been conducting checks in such settings which exceed their powers under the 2005 Act, which only provides for the questioning of persons in such settings on the basis of "reasonable grounds" for suspicion. Recent information released by the Department under freedom of information raises significant questions around the Department’s rationale for targeting certain flights, with 70% of the flights targeted for checks during this period flying to either Romania or Moldova.
While the 2020 Act provides welcome clarity in relation to the eligibility criteria for the Covid PUP scheme, we are concerned about the legal imposition of a requirement to genuinely seek work while in receipt of the payment. No regulations have been introduced for the purpose of setting out how the recipients for this payment are to be assessed as genuinely seeking work. In addition, no regulations have been introduced providing for the circumstances in which claimants may receive the payment while absent from the State. It is therefore the case that the new Act disqualifies claimants from receiving the PUP during any travel abroad for any period, however brief, and for any reason, however urgent.
Covid has highlighted and exacerbated a number of other gaps and systemic failures in our socially protective legislation which predate the pandemic in a number of areas and which are dealt with in detail in our submission. I will refer briefly to a few in respect of employment law. Between March and August employment law queries increased by 58.7% compared with last year. Issues have arisen in relation to what we call lay-off limbos, refusals or impositions of annual leave, refusals of leave for childcare and the harshness of the suspension of the right to claim a redundancy lump sum.
On evictions, we welcomed the intention behind the Act which purported to extend the prohibition on evictions to all tenancies, as well as prohibiting the forced movement of members of the Traveller community. However, it is our view that the section lacked clarity and suffered from interpretative ambiguities that deprived those who ostensibly should have been protected by its provisions of any means to resist an eviction or seek a remedy.
On debt, we know that persistent mortgage debt from the last recession remains with over 26,421 accounts already in arrears. To these will undoubtedly be added people who find themselves with new debt problems or old debt problems compounded following loss of employment, closure of business, etc. We believe that the framework of information, advocacy, legal advice and legal aid for debtors needs to be reviewed. A Covid debt code to deal with legacy mortgage arrears, new mortgage arrears and new and old unsecured debt needs to be considered.
I thank the committee again for inviting FLAC to this meeting. Myself or my colleague, Christopher Bowes, who prepared a significant amount of the material in the detailed submission, are more than happy to answer any questions.
I thank Ms Barry for her statement and for the very detailed information which has been provided. It will be considered in full by the committee in advance of making final recommendations and making our final report. I invite Ms Ansbro to make the opening statement on behalf of the Irish Council for Civil Liberties, ICCL, and to confine herself to five minutes if possible.
Ms Doireann Ansbro:
I thank the Chairman and committee members for having us here today. I am here with the executive director of the Irish Council for Civil Liberties, Mr. Liam Herrick, and both of us will be happy to answer questions. The Irish Council for Civil Liberties is an independent NGO that works to promote and protect human rights law and standards in Ireland. From the outset of this crisis, we have supported the public health effort and recognized that stemming the spread of the virus would likely require some restrictions on our rights.
Such restrictions are permitted under human rights law but, as the committee has heard already, a strict framework exists to ensure that they are as minimal as possible. Restrictions must be set out in law, be demonstrably necessary and be proportionate to a legitimate aim. We have applied this framework in our analysis of the pandemic response at every stage. In our submission, we set out how such an approach can be more effectively applied in legislation and regulations. We set out why we believe a human rights approach can strengthen the Government’s public health effort, and we highlight some specific rights issues that have arisen over the past few months.
When the first emergency health legislation was published in March and we saw the extraordinary powers being granted to the Minister for Health to restrict our rights to liberty, movement, association and assembly, the ICCL made a comprehensive submission to the Oireachtas. In addition to calling for a sunset clause and more safeguards within the legislation, we emphasised the need to ensure that all of the restrictions in any future regulations must meet the human rights framework. We suggest that future emergency legislation could and should be better human rights-proofed by integrating these principles of necessity and proportionality explicitly, by introducing a requirement to certify legislation as compatible with Ireland’s human rights obligations and by making consultation with the Irish Human Rights and Equality Commission a mandatory requirement where legislation so obviously impacts rights.
With the second emergency health Act and each set of subsequent regulations, the ICCL highlighted its concerns about rights. We have made submissions to the Oireachtas, the Taoiseach, the Minister for Justice, the Minister for Health, the Garda Commissioner and this committee. For example, in the early stages we strongly opposed the use of heavy criminal sanctions attached to regulations on movement. We welcomed the removal of these sanctions in July but remain concerned about significant criminal sanctions attaching to ongoing regulations. We called for more guidance around what constitutes a lawful reasonable excuse for not observing restrictions. In particular, we called for clarity in respect of the right to protest. Protest is a fundamental avenue for expressing dissent and takes on an even greater importance when decisions are being made that have such a monumental impact on our lives. Guidance on this issue is still pressing both for organisers and for those policing protests.
While we support the general Garda approach during the pandemic of engage, educate and encourage, the expansion of Garda powers has been and continues to be significant. This carries a risk to public trust, especially where broader powers of intervention in the private sphere are concerned. We strongly opposed recent proposals to criminalise gatherings in private homes and we regard last week’s pub grub regulations as unlikely to meet the human rights tests. We welcome the provision of some statistics on Garda operations connected to the pandemic. We also welcome the oversight provided by the Policing Authority. However, we echo its calls for more detailed public data on the use of exceptional Garda powers to enable a proper analysis of their necessity. We opposed the introduction of spit hoods for detainees during the pandemic because of considerable human rights concerns around hooding and we continue to call for their urgent removal from the Garda kit.
We have also called for better communication, accessibility and clarity around the making of each set of regulations. As the committee has heard already, fundamental rule of law principles require clarity and precision and take on greater importance when rights are restricted and criminal offences are created. A situation where people are uncertain about what guidelines have a legal basis or what behaviour is illegal is untenable. Laws must be published in advance and Government must clearly communicate the content of these laws. We continue to call for wider Oireachtas scrutiny of regulations before they come into force and for a human rights impact assessment of each set of regulations.
Finally, we have called for much greater transparency regarding the process of translating expert medical advice into Government decisions. This is fundamental to ensuring public trust and co-operation. We all need to know that broader societal concerns including rights implications are being taken into account, as complementary to expert health advice, when policies are drawn up and restrictions on our precious rights and freedoms are signed into law. I thank the committee.
We have had three contributions, all of which have been really comprehensive. I thank the witnesses for that and I want to hear from all three organisations.
Perhaps we can all work together to limit the time needed for responses if we can.
There was mention of a proposal that did not come to pass of criminalising gatherings in private homes. That is indicative of the kind of kite flying that has gone on which has been deeply unhelpful and really does not assist anybody when it comes to messaging. Measures like this make their way into the public domain because they were making their way to the Cabinet, so this is important. What level of consultation has occurred between the Government, the Department of Health and the organisations before the committee today? I note the Irish Council for Civil Liberties, ICCL, has made submissions to Ministers or Departments but I am talking about engagement. This is not an invitation to make a submission but rather an invitation to have that level of interactive engagement.
Mr. Liam Herrick:
It is fair to say consultation has varied over the period. The first set of regulations were introduced on 7 April and we had significant consultation through the Department of Justice and Equality about the content. That level of engagement has not carried through, however, and part of that is probably due to the volume of work being undertaken by the Department of Health and time pressures. It is far from ideal.
With regard to the most recent proposals for regulations relating to social gatherings in the home, as well as the fact there was no engagement that we are aware of with any organisations in the civil society or human rights sector, the deeper problem is how we are moving from advice in the public health sphere from an expert independent body such as the National Public Health Emergency Team, NPHET, which is communicated relatively clearly, to how the Government considers that while weighing human rights concerns and showing the public that those principles are being considered before engaging with the Oireachtas around that. None of that happened in this case. If there had been consultation with the Oireachtas or human rights organisations, the obvious difficulties with that proposal could have been identified and we all could have been of assistance to the Government in plotting a better course.
I am sorry for interrupting. When Mr. Herrick states there is an issue with regard to the input of human rights groups, he is essentially referring to proposals such as criminalising gatherings in private homes, which some people thought was a joke but we then found it was contained in a memo on the way to the Cabinet. Am I right in saying that could have been avoided if there had been a level of consultation?
Mr. Liam Herrick:
We recommended to the Government as far back as May that there should be consultation with the Oireachtas and the Irish Human Rights and Equality Commission on all regulations that have an impact on people's rights. Beyond that, we are also available to support and assist in any way we can. We can all accept that in the early phases of trying to respond to a growing crisis, it might have been necessary to introduce regulations in a very short period. We do not believe it is justified at this point that regulations would be introduced without engaging with the Oireachtas and wider civil society in the statutory sector.
We note that this committee wrote to offer its assistance to the Department of Health a number of months ago and that offer has not been taken up. That is regrettable. I hope at this point, when we are undertaking a review of how we go about responding to the Covid-19 pandemic, it is a good opportunity to try to put in place better processes.
Ms Eilis Barry:
We would very much like to have contributed, particularly on the social welfare legislation that was passed with great speed. We were surprised that the provisions were put in law, as were many others. We would have loved to have contributed to the debate, particularly with respect to the provisions concerning the imposition of a requirement to genuinely seek work. We look forward to such consultation in future.
It is very obvious that such consultation is absent when we see much of what is coming from the Government, which is very regrettable. There was mention of six or seven changes made to the social welfare code, including the addition of a proviso that a person should be genuinely seeking work.
Will the witnesses run through what happened and why? Will they include the reference to the appearance on television of An Tánaiste?
Mr. Christopher Bowes:
This relates to the first reference to a requirement that claimants of the Covid-19 pandemic unemployment payment, PUP, be genuinely seeking work. An amendment was made to the Covid-19 PUP website and specifically the section on how to qualify, which details eligibility criteria for the payment. On foot of the comments referenced by the Deputy, the web page was subsequently amended to include, as an eligibility criterion for the payment, that a claimant should be genuinely seeking work. In our submission we go through in detail all the information that had been published relating to the payment. There had been no reference to such a requirement prior to that point.
Mr. Christopher Bowes:
The only reference up to that point was the comment the Deputy made reference to. The website subsequently contained that reference. There was no reference anywhere prior to that comment being made to such a requirement arising in the context of the Covid-19 PUP. It remained on the website and when a legislative basis for the payment was introduced on 5 August through the 2020 Act, it became an eligibility criterion for the payment. As set out in our submission, in FLAC's view it cannot properly be considered as having been an eligibility criterion for the payment prior to the enactment of the 2020 Act.
In our submission we also highlight a number of concerns relating to it now being an eligibility criterion for the payment in circumstances where the payment is expressly stated to be designed for people who may have been temporarily laid off. We do not understand the logic of attaching that criterion to the payment in circumstances where people may have every expectation of returning to their employment after a period. This is particularly in the context of people having to seek the Covid-19 PUP in future if new rules or restrictions are introduced that might limit their ability to go to work or the ability to trade of the business for which they work. The Covid-19 pandemic unemployment payment must be reactive to such positions and take into account the sort of circumstances in which it could be foreseeable that people may claim that payment.
The criterion as it attaches to the payment should be reviewed. It is also regrettable that there are no regulations yet as to how the eligibility criterion would be assessed. For example, we do not know in what circumstances somebody should be held as genuinely seeking work while in receipt of the payment. It is particularly concerning in circumstances where people may not currently have the same access to childcare or be able to seek work as a result while in receipt of the payment. While off work, they may have other childcare commitments.
I am sorry to cut short the witness but time is short. A survey indicates that 70% of the social welfare inspections taking place in Dublin Airport related to flights to eastern Europe, specifically Romania and Moldova. What is Mr. Herrick's view on that? Does he have a view on such targeting, or would he consider it targeting at all? I would consider it targeting if the level is 70%. Does Mr. Herrick have a view on the level of human rights compliance with such action?
Mr. Liam Herrick:
We very much agree with the analysis of FLAC that the power, as we understand it, requires a reasonable suspicion that a person is breaking the law before he or she can be approached and powers of inspection exercised. So far, we know the totality of people on a particular flight were being asked for their personal public service numbers or other details. To us that would not seem to be compatible with such reasonable suspicion. From the information available through the freedom of information process at this point, as mentioned by Ms Barry, it appears a decision was made by senior officials within the Department of Employment Affairs and Social Protection that specific flights to specific destinations would be singled out. We do not know what was the basis for that selection but it certainly gives rise to serious concern that individuals of a certain nationality were being targeted. That is certainly a concern.
Data protection issues also arise around how information about travel was received or processed. We have had reports of individuals who claimed they were cut off where they never even travelled, merely booked travel, which gives rise to other concerns. Much more needs to come out in this regard but the information available gives us cause for concern around the potential profiling of particular nationalities.
It does indeed. It looks exactly like profiling, not even potential profiling, and it is something the Government needs to look at urgently.
I thank everyone not only for their evidence today but for the ongoing important work that they do.
I have a brief follow up question for Mr. Herrick. He said the fact that people booked flights, although did not travel, was a basis on which their payments were cancelled gives rise to other concerns. I presume he means data breaches, in that that their bookings somehow came to the attention of social welfare authorities.
I will take five, please.
I welcome the witnesses and thank them for their attendance and opening statements. It is generally accepted that certain intrusions into human rights and civil liberties took place as a result of restrictions introduced for a particular purpose. On balance were the measures taken necessary and did they do the job they were intended to do, that is, curtail the spread, and its speed, of the virus?
The FLAC submission referred to reasonable grounds and the Department of Employment Affairs and Social Protection. I spent some time in that Department as a Minister of State and am reasonably familiar with the application of the rules there. I was surprised at the surprise expressed at the methodology used for determining whether or not someone had eligibility as some of those means have always been used, as far as I am aware. Having dealt with countless queries and appeals before the Department's appeals officers, I questioned those areas repeatedly, but they were there. For example, on qualification for payment for jobseekers allowance or equivalent, it is necessary to be available for and seeking full-time employment, not part-time employment. I asked was that criteria taken into account and should there have been an amendment at that time to deal with issues that might arise. The counterpoint is that such is the severity of the virus that it was necessary to take particular precautions and some of those regulations might have to be set aside.
On the right to protest, having been involved in some protests in my previous incarnation, I observe that right. The question arises as to whether the restrictions introduced and imposed were on balance in line with the requirements of curtailing the virus and its spread or whether they were excessive. There are two kinds of protest, one which some members refer to as effective protesting, which means impeding the rights of others in the course of their business. Is it considered that the restrictions imposed were excessive or were in line with the requirements to curtail, slow down or restrict the forward speed of the virus?
Is it accepted that the State could have a liability in the courts if it did not take effective action to protect in general the lives and well-being of the community? I refer to various instances where the State was sued and sued successfully.
Ms Sunniva McDonagh:
There must be a balance. The State has a right to protect health and human life. That right can be curtailed in certain circumstances and we have set out clearly what they are. Any restrictions have to be necessary, proportionate, which means there cannot be a very excessive measure to achieve an end, non-discriminatory and be informed by human rights principles. Non-discriminatory means they could be indirectly or directly non-discriminatory but one must look at each individual proposal to see if it complies, that it does not infringe on rights such as the right to associate or the right to protest, freedom of association. Ultimately, each individual case must be looked at on its merits. The ultimate arbiter of whether or not the Constitution has been breached are the courts. They would make that determination if a suitable case was brought.
Mr. Christopher Bowes:
On the second question on eligibility criteria for jobseekers' payments and the criteria of being available for and genuinely seeking work, we have concerns about the continued imposition of those criteria in a very strict manner. The OECD published a very useful paper in May examining the various social welfare responses to the pandemic in OECD countries. It highlights that a number of jurisdictions suspended job search and activation requirements for jobseekers payments. By contrast, in Ireland in the case of the pandemic unemployment payment, PUP, such a requirement was added after the fact to the payment by way of the 2020 Act. We are concerned about the continuing imposition of those eligibility criteria to those payments. The Department, by way of circular 35/2020 published in June, seems to have adopted a policy to the effect that someone cannot be considered as genuinely seeking work during a period having travelling abroad where he or she is required to self-isolate and on that basis is not entitled to a payment during that period. We have serious concerns about the logic of such a policy and circumstances where there has been this huge proliferation of online jobseeking and working from home, with the Department adopting a blanket policy to the effect that someone cannot be considered to be genuinely seeking or available for work during a time when he or she is required to stay at home. The policy also reflects a quite concerning harsh, punitive imposition of the travel advice on people who are in receipt of certain social welfare payments in circumstances where for the rest of the population it remains advice. If someone in receipt of certain social welfare payments breaches that advice there could be a huge implication for his or her income and access to social welfare payments. The Deputy is correct in saying those jobseeking and availability for work requirements may need to be examined, particularly in the context of the Covid payment.
Ms Doireann Ansbro:
I will respond to two of the Deputy's questions on proportionality and protest. I completely agree with what the Irish Human Rights and Equality Commission has said. We agree that the courts are the ultimate arbiter for a proportionality assessment however I will share some observations we have made in recent months on the obligation on the Government to do that proportionality assessment. On whether the measures were necessary and proportionate, that will require a much deeper review in time.
There have been different responses and different regulations, and they have addressed different issues. We have expressed concerns at each stage on different elements of those. The first regulations impacted very significantly on the rights of people, in particular in their movement. The regulations at that time required people not to leave their homes without a reasonable excuse or not to go beyond 2 km from their home. They were introduced as guidelines and An Garda Síochána began an operation assisting with the enforcement of those guidelines, without criminal sanctions. The Garda Commissioner reported at the time widespread compliance with those guidelines without those criminal sanctions. Once those guidelines were put into law in the first set of regulations and underpinned by criminal sanctions of up to six months in prison and a €2,500 fine, which was allowed for in the primary legislation, we expressed the view that they were potentially disproportionate and unnecessary and that, therefore, there was a risk that they did not meet those human rights tests of necessity and proportionality.
In terms of the restrictions on events, nobody would disagree that restrictions were necessary given the human transmission of the disease. We did not express a very clear view whether they were necessary and proportionate. It is likely that they were. Our concerns around those regulations tended to be about communication in terms of what exactly was allowed and when, what the end date of each regulation was, when were they renewed, and what was allowed inside and outside. There was a lack of clarity, and when there is that lack of clarity, it raises issues about necessity, again because we do not know if what is precisely being provided for in law is responding to what is actually happening on the ground.
In terms of some recent proposals, in particular whether there was going to be criminal sanctions attached to gatherings in homes, we expressed a view that that would be disproportionate, particularly because we had not seen the evidence linking a rise in cases to house parties. We know that there were some cases linked to gatherings, but a gathering in a home could just be the gathering of a family of seven who live together. We considered that to be very questionable in terms of meeting that requirement of necessity.
On a final point on proportionality, to prove that laws are necessary, and when we have seen that guidelines can be followed without the criminal sanctions before regulations are introduced, it needs to be proven that education, consent and compliance are not working. When the communication and compliance and not working we have proper communication and education, that is probably when we need to be bringing in regulations with laws and criminal sanctions.
The ICCL has done a lot of work around the right to protest in Ireland. We have had many protestors come to us over recent months asking for advice on what has and has not been legal. We have directed them to the regulations and have done our best. We cannot offer actual legal advice because we do not have practising lawyers on our team, but we do our best to point them to where the law is. It has been difficult at times. The right to protest, as I said in our opening statement, takes on a fundamental importance during a time when so many decisions are being made affecting people's lives in so many different ways. We believe that there was a real need for clarity around what is allowed and what is not. There was a real opportunity for the Government to issue guidelines or to include within the regulations themselves what is allowed and what is not. Whether it is about limiting the size of protests, requiring masks during protests, or requiring social distancing, we think there is definitely potential to have much greater clarity around protests.
I thank Ms Ansbro. Before I bring in Deputy McAuliffe, I would like to make the point that whatever difficulty there has been, and there have been many for people who are looking to protest and for those looking to advise them, there is a commensurate difficulty for those seeking to police the protests. I am very conscious that we have not heard from any Garda representative bodies. We may need to hear from them at a subsequent meeting or session, but that will be in the hands of the committee and can be discussed later.
I appreciate the witnesses attending the committee today.
Dr. Ronan Glynn, on RTÉ on Friday night, talked about us closing chapter one and moving into chapter two, where chapter one was about us suppressing a huge outbreak of a disease that we we were very unfamiliar with, and chapter two is about us learning to live with this virus. The actions that were taken in the first chapter may not be applicable in the second. I fear that as we go forward, we will start to analyse some of the actions which we took in chapter one, or the first phase, but that we will use the standard and space of the second. We should always question authority. Often, in Ireland, the left and right wings are divided around economic theory, but actually they are also divided between the role and authority of the State. I would always regard myself as being somebody at the more liberal end of that spectrum. However, I do worry about us using a high threshold for a period that, no doubt, was incredibly chaotic. There was little information and we were looking for immediate answers and actions. The Social Welfare Bill, is one to which I would point. There are many in this House who would have liked to have seen greater scrutiny of that Bill within the House, never mind those in organisations outside.
Mr. Bowes talks about other countries removing the right to seek work, but a fair comparison is to say that the regime that was put in place in July, probably was one of the most generous regimes, in the sense that it was one of the highest levels of payment. More important, it was for a longer period of time, where other jurisdictions were not guaranteeing that payment for such a long period. By including the obligation to genuinely seek work, we were making a plan in July for something that would happen next March. The Minister has been very clear that there is a common sense approach. I agree that we should see regulations around that, but in making regulations for July, for a payment that will continue all the way until next March, it was appropriate to have that requirement that people would seek work, while at the same time, the common sense that it would not be applied to industries which we were closing in the very short term. Perhaps Mr. Bowes or one of the other witnesses may be willing to respond.
Mr. Christopher Bowes:
I think the Deputy is definitely correct. I made reference to comparing to other jurisdictions. Ireland does compare quite favourably in the context of the social welfare measures that were introduced in response to the pandemic. But that paper also highlights that the pandemic, and the increased demand for social welfare payments across the board, also brought to the fore weaknesses in every individual jurisdiction and in every system. In introducing the 2020 Bill, which came into effect almost five months after the Covid pandemic payment was actually introduced, there was an opportunity there for scrutiny of the Covid Pandemic Unemployment Payment, PUP, scheme, and for a period of consultation as to the working for it. The Deputy has made reference to the requirement to genuinely seek work and being attached to that payment. We should note that that criteria applies to the Covid PUP at the moment, as it stands, to each claimant for the payment. I know the Deputy has made reference to taking a common-sense approach, and the Department has indicated that it will take such an approach. But in the absence of any regulations which reflect that approach, it is impossible to know what approach at all is being taken, or what criteria people are being assessed by reference to in deciding whether or not they are genuinely seeking work.
While I share the witness's concerns on the broader point, I must say that I have not met, in my clinic, anybody who said that they have been removed from the payment on the ground of genuinely seeking work, nor have I heard tell of this from any of my colleagues. So, the questions is, is it a current and legitimate concern, or a broader concern regarding the overall legislation in the longer term? Has any of the organisations received any complaints from individuals who have been removed on the ground of genuinely seeking work?
Mr. Christopher Bowes:
We have certainly been contacted by those who travelled abroad, and were in receipt of the PUP. On their return, they were told that their PUP was not payable to them for the two-week period after their return, during which they were self-isolating, because of the Department's view that one cannot be held to be genuinely seeking work during that period. It is definitely a live concern for Free Legal Advice Centres, FLAC, and it is a live concern on the basis that it now applies and is in the Act. The absence of regulation creates a massive lack of clarity as to how that criteria will be applied. If someone who has been temporarily laid off since March is looking to apply for the PUP and sees there is a criteria to the effect that they need to be genuinely seeking work in order to access that payment, they may feel they are not entitled to the payment because they are not genuinely seeking work as they have every expectation of returning to their employment when it resumes. That may be the real effect of that measure.
I accept that, but at present, I am not aware of any people who have been removed on the grounds of genuinely seeking work, and the Minister has been clear about the two-week holiday requirement. Are the organisations aware of such people, other than those contacting Mr. Bowes with a concern?
It would be good if Mr. Bowes could provide the committee with some of the numbers around that because we could include that in our report, that is, how many people have been removed on that basis.
On the second point about those who were removed for permanently leaving the State, and there is a lot of debate around this, I certainly believe that many ordinary people would feel that it would have been quite reasonable that anyone permanently leaving the State should have had his or her payment terminated. The question is how we investigate that. I agree that there are media reports and people's stories which have emerged in the media which seem to be breaches of the data regulations, yet it is not clear how that happened. If the Department of Employment Affairs and Social Protection, as it was then, carried out operations which were not in line with the Act, then that was wrong. How do the organisations propose that we monitor that investigation as things go forward?
Mr. Christopher Bowes:
On the Deputy's first point, FLAC will certainly be willing to provide any information that has come into our phone line in terms of the number of people who have raised concerns around that requirement. I am sure the Department would also be happy to provide any information the committee may want to request from it.
On the second point about the airport checks, and again this is something about which people have come to FLAC and described their experiences, it seems these checks not only are being conducted in a manner which raises data protection concerns but are also being carried out in a way that goes beyond what is allowed under the Act. There was no basis for these people to be questioned nor was the inspectors’ certificate of appointment provided to those who were subject to these questions. There is a further concern around fair procedures in that people’s social welfare payments seem to have been summarily cut off after these checks with no notification to them or fair procedures of any kind.
The additional concern is around the social welfare code in the context of a number of payments, such as jobseeker’s allowance, supplementary welfare allowance and the Covid PUP up to 5 August. The primary legislation does not create a situation whereby those payments are not payable simply on the basis of someone being absent from the State for a very brief period. I note that the kind of information the Department was gathering was merely evidence of someone leaving the State. It was not asking questions as to the reason for those departures from the State or to the extent which or the length of time the person was going to be absent from the State. There are a number of concerns about the airport checks.
On leaving the State, or being on a flight during a period when the Government was advising people they should not leave the State – that was a guideline, obviously – the question is whether that was enough. Was that a reasonable ground to assume people were leaving the State permanently? I agree with Mr. Bowes. I do not believe fair procedures were used here and that all the normal principles of natural justice applied.
This morning’s discussion with two international contributors was incredibly interesting. They spoke about the UK experience where the Civil Contingencies Act was not used but the Public Health Act was used. It is interesting because we also used the Public Health Act to implement some of the restrictions, or the lockdown as it is generically called. The Civil Contingencies Act was brought in in peacetime and in a way in which it was debated. Do the witnesses believe the Dáil should engage in consideration of what emergency powers could be implemented in a future emergency because obviously the Constitution refers to rebellion and war but this scenario does not fall into that category? Is there a need for that broader debate and legislation to be introduced in a non-emergency time?
The second question is around the right of Government to select which activities are permissible and which are not. Many people think it is far safer to be on the side of pitch watching a match than to be in a pub watching the same match.
I had a mother who contacted me to say that her 15-year-old had asked if he could go and watch the local club game with the father of a friend in a pub rather than being able to watch it at the side of the pitch. The Government should not be determining which activity we should have, but I accept that when I put that to the Minister at this committee, he said that we are in unprecedented times. Perhaps, as we move forward, we will be able to have a more mature and reflective view.
Ms Sunniva McDonagh:
I would just like to add that the Irish Human Rights and Equality Commission has been calling, since 2016, for an Oireachtas committee on human rights, equality and diversity, with a proper cross-departmental mandate to look at various humans rights and economic and social rights that might arise. The Deputy has raised some very interesting points. It would be very nice to see this sort of debate formalised in such a committee going forward.
Ms Sinéad Gibney:
I thank Deputy McAuliffe for his questions. The way the Deputy described chapters one and two in the earlier part of his questioning was very helpful. Of course, there were limitations on how regulations and legislation could be measured and tested during that time. We are now in chapter two, however, and it is now up to the Oireachtas to engage in that scrutiny. As my colleague mentioned, we have been calling, since 2016, for the creation of a committee to deal with human rights. If one thinks about how that could enhance the legislative process in the future, it means that the voices of those affected by these issues, and the human rights and equality experts that are here in the State and ready to help will, by default, be included in that process. That should absolutely be the case. That will then also play into the fact that for future emergency legislation, which I agree should be discussed when we are fresh out of - or still in - this emergency, it is the right time to build in these default structures. That way legislation and practice can be better scrutinised at an earlier stage of the process.
I thank an Cathaoirleach. I thank the witnesses for their attendance here this afternoon and for the submissions they presented to the committee. I also thank them for the very important work they do throughout society in respect of access to justice and equality, not just at this time, but at all times. I have a question for Ms Barry. Her submission was very detailed and covered quite a lot of areas. I only have five minutes, so I do not have time to ask questions on all the areas covered. I want to ask questions, in particular, on employment rights for workers during the pandemic. I note that queries to the witnesses' services about employment law are up by almost 60%. This is perhaps unsurprising given the upheaval in employment and the impact on employers and employees at this time. In Ms Barry's report, she states that there is no legal obligation on employers to use a mandatory procedure in writing to place employees on lay-off from their jobs, or a specific written procedure to notify them that their lay-offs are coming to an end and the date when they will be expected to return to work. It is her contention that there is no legal basis to compel employers to inform employees of a lay-off, or at the end of a lay-off period, in writing. Could she expand on that point, and the impact it is having on employees?
Ms Eilis Barry:
What is happening is that people are contacting us who have been "laid-off", but who do not know for how long they are going to be laid-off, and at what stage they will be able to come back to work. They are actually seeing colleagues return to work or people being appointed to their jobs, so there is a kind of lay-off limbo going on in certain employment situations. This is exacerbated by the lack of that legal requirement that we address to explicitly set out the length if time that workers will be on lay-off. There is also a problem because of the prohibition on people claiming redundancy sums. They are in a situation where they may see colleagues returning to work but they are not returning to work, yet they cannot decide that they want to move on and claim what may be a very generous redundancy sum. We feel that is something that needs to be examined and reviewed. There is a lack of clarity around the legal obligations of an employer in this regard. However it is exacerbated by the inability of people to turn around and claim redundancy.
I agree that this is something that needs to be examined. Is this more common in precarious employment types, or is the witness seeing this across all employers? Is there a pattern to where the witness is seeing this in certain types of employment?
On page 3 of the submission reference is made to the benefit take-up campaign for the newly extended rent supplement scheme. The uptake was very low because not many people are aware that they may qualify under the new criteria. A huge number of schemes, supports and assistance were being provided across different Departments. Was this one that was just missed out on and what lessons can be learned from that?
Ms Eilis Barry:
We launched what we called a benefit take-up campaign because it came to our attention that there was a very low take-up. We also understood that people who might be eligible for the supplement just did not know about it. It was significant that such a positive scheme from the Department was not being utilised. This goes back to our original point that people should have clarity about what is out there and what they may be entitled to claim and be encouraged to apply.
Ms Eilis Barry:
We were dissatisfied with how the changes to the eligibility criteria for the pandemic unemployment payment were achieved. As we set out in our submission, the page on thewww.gov.ie website that dealt with the payment was changed. It would appear that an attempt was made to change the eligibility criteria simply by changing them on the website. We have set out our concerns around the legality of the changes that were being introduced and also the fact that when people were applying for the pandemic unemployment payment, there was no indication that they needed to be actively seeking work or that penalties would be imposed if they availed of holidays. In that regard, we had concerns.
I have one quick question on health and safety. There was an increase in the number of calls seeking health and safety at work advice. Was there a pattern there in terms of the types of employment involved?
Ms Eilis Barry:
The increase in such calls related to all types of employment, both public and private. The calls were from people who belonged to high risk categories who were concerned about returning to work and who were not assured that proper health and safety procedures were in place. They were also from people who had vulnerable relatives living with them who were concerned about returning to work and putting those relatives at risk. It was right across the board. What was particularly evident earlier in the year, when our employment law calls peaked, was that employees were being told to come back to work immediately or they would lose their job. That was a real concern.
I thank the witnesses for their submissions and for attending today's meeting. I will direct my first question to Ms Gibney and congratulate her on her appointment to her new role. On page 2 of her opening statement she discusses the spectre of returning to our institutionalised past. One of the institutions that has been under the microscope a lot during this pandemic is the nursing home. Has the commission done any work on the impact of this pandemic on nursing homes from a human rights perspective? Is there any comment Ms Gibney could make on that?
Ms Sinéad Gibney:
It is an issue that we are keen to look at. As I mentioned in my opening statement, we feel there could have been legislation in place which would have assisted in identifying earlier in the process potential issues in places such as nursing homes.
There has been a disproportionate impact on people in nursing homes, and that is something that we must continue to analyse. We have initiated a report which we will be publishing in the coming months, and this is one of the topics being dealt with in that report.
The national preventative mechanism that I mentioned, for example, would apply not just to places of detention but also to nursing homes where people have been admitted in particular ways. We would like to stress that the pandemic has meant that existing human rights and equality issues have been exposed and this has been exacerbated for certain groups. Where there is capacity, people need to be able to use that capacity to assert their rights. Where that capacity needs to be fulfilled, we need to provide ways in which that can be done, and of course that impacts on nursing homes. The OPCAT mechanism of the national preventative mechanism would potentially allow for that to be used in those settings. This is a live issue for the commission.
On the issue of the Garda and seeking more disaggregated data, will Ms Gibney comment further on the commission's work on trying to get those data, why they are needed and the impact that not getting the data is having on the commission's ability to report effectively on the actions of An Garda Síochána.
Ms Sinéad Gibney:
We have sought on a number of occasions to access those data through letters to the data office of the Garda Commissioner. In our previous submission to this committee we spoke specifically about disaggregated data as it relates to people with disabilities. My colleagues who are on the strategic human rights advisory committee, SHRAC, for An Garda Síochána have also raised it there. What it prevents us from doing is monitoring the implementation of the regulations. If we do not know who is being impacted by the regulations, then we cannot effectively carry out a human rights and equality impact assessment or an assessment of how these powers are being used. We also recently wrote regarding the use of spit hoods, and there are no disaggregated data on that, for example.
Disaggregated data are something that we have been talking about for a long time. They are something that the UN comments on when we engage in the treaty monitoring mechanism that we, as Ireland's national human rights institution, have. Without understanding how powers, laws and practices impact on specific groups, we are unable to monitor effectively the human rights and equality impacts of those activities. Disaggregated data are something that we have to improve on in this State. They are particularly pertinent to this issue and this current phase.
My next question is for Ms Barry of FLAC. Anyone who has been involved in politics in recent years will know that FLAC is stretched to the maximum. Ms Barry mentioned in her submission that the waiting lists are six months long. Has FLAC carried out any analysis on what the waiting lists will look like in 2021 and beyond if it does not get the additional resources it needs?
Ms Eilis Barry:
It is important to distinguish FLAC from the Legal Aid Board. We are a voluntary, independent legal rights body which campaigns for access to justice. In our submission we were referring to the State's Legal Aid Board which indicated at a recent meeting that it expects a lot of applications for aid once the courts are back to normal. I am not aware of whether the board has carried out an analysis in that regard, but I know that it is currently considering its strategic plan. This is something that we will be raising with the board.
Ms Sinéad Gibney:
Obviously there is a lot of work involved.
It is a culture that has evolved. There are issues around the specific jurisdiction we are in and our demographics, but there is no question that Ireland is not providing the disaggregated data necessary for a national human rights institution and equality body to effectively monitor activities in the State.
There may be positive stories there as well. There is an expectation that the provision of data will always have negative consequences. That may not always be the case. It will also help us to improve things.
I would like to ask the representatives of FLAC about conflicting rights. Some sectors, such as bars, the travel industry and the arts, will obviously take longer to return. Rights can come into conflict. Recipients of the Covid-19 pandemic unemployment payment are required to be available for work. However if they terminate the employment to which they want to return, they lose rights such as consideration of time in regard to redundancy payments. Does the State have an obligation there, in light of the fact that this was meant to be a temporary payment and people were expected to return to work? Has the five-month delay allowed a rewriting of the history of the initial intention of this payment?
Ms Eilis Barry:
There are a few issues there. The intention at the outset was to provide a vital payment across the board to all sectors. This was welcome. We have concerns about the prohibition of redundancy claims and the newly introduced requirement to genuinely seek work. We have been contacted by people who may be entitled to very significant redundancy lump sums which they cannot claim. In effect, that constitutes the loss of a very significant right. That is why we wanted to be consulted on the Social Welfare (Covid-19) (Amendment) Act 2020, as well as on the obligation to be actively seeking work and its interaction with the prohibition of redundancy claims.
Ms Eilis Barry:
We see that as problematic. Someone who has been working in a wet pub for 20 years will be hoping that it will shortly be reopened and has been given every indication that it will be. To require such a person to be genuinely seeking work to remain entitled to the Covid-19 pandemic unemployment payment, in circumstances in which a redundancy payment cannot be claimed, is to ask them to waive a very significant entitlement.
Ms Barry referred to the five-month delay several times. There were many reasons for that. Does it matter that the payment had a certain intention at the outset and the dynamic changed over time? Is that what the witnesses are saying?
Mr. Christopher Bowes:
FLAC welcomed the introduction of the Social Welfare (Covid-19) (Amendment) Act 2020 as it provided clarity on the exact eligibility criteria for the Covid-19 pandemic unemployment payment. Regrettably, the manner in which the legislation was passed did not leave any time for engagement and scrutiny. This could have provided a welcome opportunity to resolve issues such as redundancy payments. It is welcome that the payment was put on a statutory basis because as the Deputy notes, it has lasted much longer than was envisioned when it was introduced.
As the payment was in effect for a longer period of time, further operational issues around the attached criteria and their enforcement came to light. The payment is now expected to last until April 2021. In such circumstances the clarity provided by placing it on a statutory basis is welcome.
I would like to ask a couple of questions about rights and how they were vindicated or otherwise during the pandemic. How did the Irish Prison Service do? What happened to prisoners and what was done to facilitate visits? I saw an announcement on social media stating that the Irish Prison Service had managed to reopen and re-establish family visits relatively early. What happened with regard to communal space and recreational facilities within prisons? The witnesses may not know.
Ms Sunniva McDonagh:
I would like to comment briefly here. The European Union Agency for Fundamental Rights in Vienna highlights elements of good practice. It highlighted the Irish Prison service and particularly the Irish Red Cross, which launched several interventions in prisons. It ensured the availability of television and Netflix and set up a buddy system. The agency praised those organisations in its review of all the member states.
Ms Sinéad Gibney:
I would add that the Irish Prison Service has handled the pandemic very well in terms of infectious disease control. It is not the first time the service has had to deal with this, so it may have had an advantage at the outset. There must be oversight of the implications for visits and recreational facilities. Some innovations were introduced, such as remote visits. These must be examined. As mentioned, it has been heralded as a positive example internationally. There have only recently been any incidences of Covid-19 within the prison system.
My next question concerns testing in direct provision centres. The EU reception conditions directive allows for health screening etc., but it is silent on what happens if someone does not co-operate. There is a duty on the State to provide accommodation under the directive. What happens if someone does not want to be tested regularly and argues that he or she is at a heightened risk of Covid-19 because the State has chosen to place him or her in a congregated setting? Such people could argue that it is not their responsibility to be regularly tested as a result of choices the State has made. Have the witnesses encountered this scenario or any trouble following the announcement of regular testing in direct provision centres a month ago? Ms Gibney may wish to answer but the question is directed at the entire panel.
Ms Sinéad Gibney:
Maybe somebody else could address the specifics of the question. We recently wrote to the Minister for Justice and Equality, Deputy McEntee, asking for reassurance and information on measures taken to allow people to self-isolate in direct provision. More generally, we inquired about the health and well-being of everybody in direct provision. As the Chairman has correctly pointed out, it is the State which has put people in circumstances where their health, well-being and ability to respond to this pandemic have been compromised. There is therefore an obligation on the State to ensure those compromises are fixed and these people can deal with the pandemic as well as the rest of the population can deal with it.
Mr. Liam Herrick:
If I might add to that, any proposal to compel people to undertake testing or any medical treatment would give rise to very serious legal questions which would need to be considered in detail.
There would need to be careful deliberation and consultation in advance of them. It is a further example of one of the very complex issues we are trying to deal with at the moment. I do not think it is helpful to talk about introducing measures that are mandatory and compulsory for a particular section of the community without a proper exploration of the legal issues that might arise.
Certainly direct provision has been identified as one of the grave areas of concern over the past months. It is an interesting contrast with the Irish Prison Service where there was considerable success from the point of view of controlling the disease, although there were significant consequences for prisoners and their families in terms of their access. In respect of direct provision, the State does not exercise direct control and there are not clear lines of accountability or responsibility, and we have had ongoing concerns. If there is a criticism to be made here, while we have got very assertive action by the State in some areas of private life where there is no clear evidence of a high risk or problem at the moment, we have seen less action than we would have expected in areas where there is a demonstrable high risk. Specifically we are talking about the ongoing problems in direct provision where people are continuing to live in dangerous situations, and the fact that we have factories operating in some sections of the economy where there is a clear risk as well. This is one of the problems for the public perception of the Government response. It is difficult for the public to see the coherence of criminal sanctions and assertive action around some areas of private activity along with an absence of action where there is a clear risk.
I am aware that all the organisations are human rights bodies and may not be so concerned with civil litigation. I am wondering if they have any concerns about the effect of section 43 of the Health Act which, if a regulation is not adhered to, reverses the burden of proof if somebody contracts Covid-19. It only does so where the plaintiff was not aware of the breach of the regulation. Even if regulations about what people can and cannot do in their own homes do not have criminal sanctions, they could have civil consequences. I am thinking of the whole idea of horizontal effect and all of that. Maybe it is not of huge concern to the witnesses as human rights advocates. Is it something that has been considered?
Ms Sunniva McDonagh:
Many of the rights involved are human rights. The reason IHREC takes so seriously the issue of direct provision is that there are rights of bodily integrity and other human rights involved. Those rights ultimately can be vindicated if they have been breached. That would be the civil litigation route if it were shown that they were breached. Obviously there has to be a balance always in respect of the requirements of public health. We have made clear in our submission that many measures impact disproportionately on people in direct provision, Roma, Travellers, and people with disabilities. There is a particular onus to take account of what sort of measures might be appropriate for vulnerable people.
On the introduction of regulations, the first session this morning included a former judge of the UK Supreme Court, Lord Sumption, and the president of the Venice Commission of the Council of Europe, Dr. Gianni Buquicchio, both of whom agreed as a matter of rule of law that it would not be possible to enforce a regulation before it was published. There was a considerable delay even when a regulation was announced with great fanfare at a press conference by the Minister or indeed on prime time television, the "Late Late Show" or wherever.
Does Mr. Herrick agree that somebody could not be prosecuted for breaching a regulation in circumstances where it had not been published? Does he have any concerns about the manner in which regulations were published or not published?
Mr. Liam Herrick:
In our submission, we set out very detailed recommendations for how we feel the system of developing regulations could be improved. This builds on detailed submissions we made to the Department of Health in May. All the bodies presenting to the committee today had the benefit of listening to contributions this morning, and we are all approaching this in a constructive way, trying to make helpful suggestions as to how we can all do things a little better in future.
With regulations, we must ensure that first there is clarity about which specific set of public health advice is inspiring the Government to consider that it needs regulations. The Government must make its case as to why communications are not sufficient and regulations are required. There should then be a process of engagement with the Oireachtas, in the first instance, and then others to ensure that any regulations are balanced, necessary and proportionate. If that requires more resources and time for NPHET in explaining its advice, the Department of Health or any other Government body in developing legislation, or the Oireachtas, it should be provided as the stakes are so high.
There is a broad consensus in the views of all the bodies presenting before the committee that there are clear and concrete examples from other jurisdictions of how we can improve the implementation of regulations. This is not just an abstract legal or technical point. This is about ensuring a higher level of transparency so the public understands, co-operates and trusts what is happening. In our experience over the past number of months, the vast majority of members of the public who have contacted us want to comply with the law and guidance but they are just asking for more information and clarity. It behoves the Government to provide such clarity.
I thank the witnesses for their presentations. My first question is for FLAC and concerns the pandemic unemployment payment rules. What happened around the changing of the rules was, to be frank, sinister in a number of ways. It is part of an attempt to manufacture consent around generalised cuts to the PUP and it was an arbitrary change in the rules after the fact to make it fit with an interview given by the Tánaiste. There was also the targeting of a particular nationality; I understand that 1% of flights from Dublin Airport are to Romania but that over 50% of the checks of flights took place where the destination was Romania. It was very blatant targeting.
I want to focus on the data protection aspect. There is at least anecdotal evidence to suggest the Department had access to the registers of the ferry and airline companies, which would, prima facie, be a breach of data protection legislation. In investigating this matter, I have been informed of previous cases where people have had child benefit cut because they were out of the State and it seems there is no basis on which the Department could have known - there were no inspections - except from having information from either airline or ferry companies or the immigration authorities at Dublin Airport. Is this a matter that has been encountered previously in the context of other payments whereby the Department has access to information that it certainly seems it should not have?
Mr. Christopher Bowes:
Prior to the issues relating to the Covid-19 pandemic unemployment payment, FLAC has not come across any cases where concern has been raised about information to which the Department has access. Going back as far as 2016, we have had cases where we have raised concerns about the actions of the Department at airports and ports, and such actions potentially exceeding the legal limits created under the 2005 Act.
Deputy Murphy talked about data protection concerns. Free Legal Advice Centres welcomes the fact that the Data Protection Commission has launched an investigation into those actions. Engagement between the Department and the commission is the only way to get clarity and some finality on the issue in terms of what has been going on with these airport checks.
Mr. Bowes talked about previous instances where the inspectors were potentially operating outside the law, that is, without a reasonable cause. Is Mr. Bowes aware of profiling of particular flights to particular destinations among those previous cases?
My final question is to the representatives of the Irish Council for Civil Liberties. I welcome and support the campaign of the ICCL against spit hoods. It might be useful if the ICCL representatives could paint a picture of what spit hoods are like. I know that in Britain they have been compared by the Met to the hoods used in Guantanamo Bay. Obviously, they are not exactly the same, but can the ICCL representatives give people a picture of what they are like?
Ms Doireann Ansbro:
My thanks to Deputy Murphy for the question. We have been campaigning against spit hoods since their introduction at the end of March. At the time we were told that this was required to protect gardaí from spitting and the transmission of Covid-19. Obviously, we fully support the need for gardaí to have personal protective equipment. However, we find the classification of spit hoods as PEE highly problematic because a spit hood is a full hood that goes over another person's head.
From a human rights perspective, hoods have long been defined as inhuman or degrading treatment. We are concerned that using these kinds of hoods goes clearly against the Garda's human rights obligations. We cannot answer how they were introduced without a human rights impact assessment but we would certainly agree that there should have been such an assessment, and there has not been one.
They are currently being reviewed by the Garda. We have put in a comprehensive submission explaining our human rights concerns around the use of spit hoods. A number of points are important to make. The first is that a manufacturer of spit hoods came out in July and said they do not provide effective protection against Covid-19. That initial justification for introducing them to this jurisdiction is simply not accurate. We have called on the Garda to explain precisely why the force is using them and why it considers they are necessary. If they are being used as a method of restraint, can it be a proportionate use of force? Our view is that given the considerable human rights concerns that their use raises, it would be difficult to justify their use as human-rights compliant. We have been calling for their removal from Garda kit as soon as possible.
Ms Sinéad Gibney:
I will comment on the use of spit hoods. Specifically, there needs to be clarification on their use with children aged between 12 and 18 years. I have already mentioned the points about disaggregated data and whether medical assistance was sought. The question of the specific characteristics of the individual arises. For example, is there any learning difficulty? For what length of time was any such guard used? Those are some additional points.
My thanks to the deputations for their submissions and presentations. They are very much appreciated. The presentation from the Irish Human Rights and Equality Commission sets out the need for clarity in respect of emergency legislation. In other words, IHREC is more or less talking about having a structure in place in future.
What kind of structure is envisaged? For argument's sake, let us suppose we have another challenge four or five years hence, although hopefully not, in a totally different context in which emergency legislation would again be required, what type of structure should be established to deal with that? For example, one of the issues I raised earlier this morning is that in Australia an emergency Cabinet was formed consisting of the Prime Minister and premiers from the six individual states together with some other individuals. That was set up to deal with this issue. I am wondering about the Irish context. In fairness, over the years the courts have been instrumental in providing checks in respect of legislation and we have various other checks as well. For example, the President can refuse to sign legislation and refer it to the Supreme Court. Is the witness saying some further structures should be put in place for dealing with emergency legislation should another emergency arise in the future?
Ms Sinéad Gibney:
Yes, absolutely. I have been listening to the discussions today and earlier in this session my colleagues spoke about the use of the courts, for example, in determining the proportionality. There is no reason that we cannot take the jurisprudence that is available to us regarding proportionality - the ICCL has outlined constructive and clear recommendations on how this could happen - and, more broadly, human rights impact assessment models that are used in other jurisdictions and applying them earlier in the process. We will inevitably have emergency legislation again. It will happen at some point. The committee we have pushed for since 2016 would be a mechanism which, when in place, would make this so much easier to implement. It would allow for the easy consultation of human rights and equality experts within the State and the voice of those most impacted by whatever emergency legislation is being proposed. We have heard about the specific groups, such as those with disabilities, the Traveller population, those living in direct provision and people in this pandemic experiencing homelessness and domestic violence. These are all people who we can consult earlier and more effectively in the development of emergency legislation and with the appropriate experts. For me, that structure of the committee is definitely a key part of that.
Another thing we would promote is the public sector equality and human rights duty which, on a longer-term basis, allows for the strategic planning of any Department or public sector body to take account of human rights and equality. Of course, those Departments and various bodies will now be considering future emergency legislation. Thinking about the human rights and equality duty and how it can be best applied will help the Oireachtas and Departments to prepare better for emergency legislation in the future.
With regard to both emergency legislation and regulation, does the witness believe we are giving too many powers under regulation? I know it is there in the legislation, but one does not have the same analysis of regulation as one has of legislation. Does she think we should be more careful that in passing legislation we are not, in a way, undermining the role of the Oireachtas by passing powers to the Executive which it can use by way of regulation?
Ms Sunniva McDonagh:
Obviously, legislation comes from the Oireachtas and regulations come from individual Ministers, but they are all subject to Article 15 of the Constitution. Regulations are supposed to be enacted to give effect to the details of the parent Act. The checks and balances that exist provide that if an individual Minister made a wide-ranging regulation that was not within the parameters of what the Oireachtas had decided by way of legislation, that would be outside the power of the Minister. There is no unfettered power to put anything one wishes into a regulation because of the importance of parliamentary oversight, which would be available in the parent legislation.
I gave an example this morning - it was something in which I was involved a number of years ago - where a regulation was in place for over 20 years and, in fact, there was no appropriate legislation underpinning that regulation.
As I said, the regulation was in place for 20 years but there were no proper checks and balances in respect of it until the matter was brought to the attention of the courts. It is for this reason I raise the need to ensure that the powers we provide for under legislation are not later provided by way of regulation because that process does not get the same level of scrutiny.
Mr. Liam Herrick:
The point made by Deputy Burke is precisely the point made by the ICCL in its submission to the Oireachtas in March in regard to the Health Act 1947, namely, that the powers that were given to the Minister in this particular context to introduce regulations was unusually broad. We appreciate that the Oireachtas was considering the legislation in a very compressed timeframe but that is an ongoing challenge. That legislation and the power to introduce regulations expires on 9 November 2020. It is essential that the Oireachtas has adequate time to consider those powers before they expire if it was to be proposed that they be introduced again in the future in a different form.
The second question, notwithstanding that the power is place for the Minister to introduce regulations, is that there is nothing to preclude any Minister consulting the Oireachtas on regulations and matters therein before they are introduced. It is regrettable that the Minister for Health has chosen not to avail of that opportunity, particularly when many of the regulations that are being proposed now concern matters that have been under consideration in the Department for four, five or six months, including, for example, public houses or movement. The powers are too broad but notwithstanding that the Oireachtas can still be consulted and it should be consulted.
I would like to move on to another issue which arose in my own constituency. During the early summer large numbers of young people were congregating in parties in houses which was causing a problem for adjoining households. The residents had to take this matter to the courts. I accept the need for checks and balances in regard to the powers of An Garda Síochána. Does Mr. Herrick believe there are appropriate powers in place to deal with a situation where lives are being put at risk in real terms because large numbers of people are congregating? When the Garda was dealing with this issue, it found that in many cases it did not have sufficient powers yet the people living in adjoining properties felt at risk of what was happening on a daily and nightly basis.
Mr. Liam Herrick:
I am very familiar with the area and the problem to which the Deputy refers. The law must be precise. It must be predictable and clear. It was suggested that over the summer months there was a particular problem with very large gatherings in rented accommodation, of up to 100 people, and that this might present a public order and nuisance problem and might also potentially present a public health problem. There might be a range of ways in which that could be dealt with. It was not demonstrated that Garda powers under the public order Act were inadequate to deal with that particular problem. The proposal that ultimately came forward was to criminalise gatherings of more than six people in a private setting, which was a completely different problem. This did undermine the clarity and coherence of the overall approach.
With regard to the role of the Garda particularly, I pay tribute to the remarkable job that An Garda Síochána has done in supporting the public health effort and being a front-line agency since March. The strategy around the use of penal provisions and criminal sanctions by An Garda Síochána is that these measures are to be sparing and minimised. Very good decisions were made not to involve the Garda in the policing of private homes and holiday homes or around the policing of quarantine. These were good decisions which we support. Against that background, the proposal to introduce a role for An Garda Síochána in policing private gatherings of six people in people's gardens flew completely in the face of the strong approach that had been there before. It was a mistake and we are glad that that proposal was withdrawn.
The same applies in the context of expanding the role of An Garda Síochána with regard to public houses. For example, there are highly sensitive questions about the police, as a community service, and putting them in a position of potential conflict with members of the public going about their ordinary lives. The approach we have had up to now has been good. We should be careful about introducing new criminal penalties and new roles for An Garda Síochána that would criminalise matters that are properly public health matters.
There was a particular challenge where the residents in the area in question had to take civil proceedings. Does Mr. Herrick believe there could have been a mechanism in place that required them to go down the civil route of bringing the matter to the attention of the courts?
Mr. Liam Herrick:
There may be a question about whether the criminal law was inadequate to deal with what would seem to be, on the face of it, a significant nuisance and public order problem. We would need to have a better explanation of why individual Garda units took the view that there was not a sufficient legal basis to go forward. A civil remedy was available in that particular instance. Of course, we are confusing nuisance, public order and public health matters. We have a clear view that public health matters should be dealt with by health agencies to the greatest extent possible. For example, the Health and Safety Authority could perform certain functions as opposed to involving the Garda in areas that are really inappropriate for community policing.
Overall, does Mr. Herrick believe that the Garda has sufficient mechanisms in place to deal with this issue without going down the route of prosecuting people? Does the force have sufficient powers to deal with an issue like this?
Mr. Liam Herrick:
We have no reason to believe that the powers are inadequate. If there is a need to review particular issues in respect of people presenting a significant nuisance, as some of the instances in Cork seem to suggest, then that is a separate matter. In any event, it should not be dealt with in a public health context.
My thanks to the witnesses for their submissions, feedback and suggestions. I realise that it has been a long afternoon and many of the questions have been asked already, so bear with me while I seek some responses from the various witnesses. My first question is to all the witnesses. I have heard numerous references to other jurisdictions and praise for the manner either in which they brought in regulations or dealt with the pandemic initially. My question is to the witnesses individually. What jurisdictions would they highlight as good examples and what are the reasons for that?
Ms Doireann Ansbro:
I can speak to that. We have included a section on other jurisdictions in our submission to the committee. It is important to say that there is no golden example of another jurisdiction that has done everything right. Overall, Ireland has done a very good job. However, other jurisdictions have approached things in different ways. We can identify parts of those approaches as positive and ways in which we can improve our response in future. We addressed the approaches in France, Germany, New Zealand, Australia and the UK. I have no wish to take up too much time, but one or two things can be taken out of each of those responses, which, we believe, were a little more compliant with a human rights and rule-of law approach.
If committee members have our submission before them, they will see the reference to France on page 10, at paragraph 41. We know one of the ways France dealt with the pandemic. Rather than having large criminal sanctions, as we did from the outset, those responsible had a graduated response. A breach of regulations attracted a small fine first of €135. It rose to €200 on a second breach of the regulations. It went up far higher following a third breach. We believe having such a graduated response is potentially more proportionate than the provision for six months in prison and a €2,500 fine that we saw in our legislation. I will continue with an example from each country.
Many other countries' national human rights institutions were asked for or volunteered observations on legislation. Plenty has been done by the Irish Human Rights and Equality Commission, IHREC, but we have been calling for this practice to be made mandatory so that the Government is required to consult with IHREC where legislation has such an impact on rights. That could start today and apply to all future regulations.
We would also welcome wider civil society consultation. Advisory groups in some other jurisdictions had wider memberships than ours. Rather than just health experts, of which the National Public Health Emergency Team, NPHET, is mainly composed, the French advisory body also included an anthropologist, a sociologist and members of civil society. Having a broader membership may be a positive way to ensure that other concerns are taken into account. Previous witnesses have spoken about New Zealand. That jurisdiction did two very noteworthy things. First, each new set of orders or regulations received wider parliamentary pre-legislative scrutiny. Secondly, a very high level of transparency was maintained. Meetings of the epidemic response committee which scrutinised the Government's actions were broadcast to the public. That could be a very useful way of communicating the precise evidence used to formulate both scientific advice and Government decisions. Some decisions must be private, but there is room for more discussions to be held in public. That would be a very positive contribution to public trust as well as the rule of law, transparency, communication, accessibility etc.
We would particularly highlight the requirement for UK legislation to be certified as compatible with human rights obligations, particularly those arising from the European Convention on Human Rights. In requiring that certification the British Act that implemented the European Convention on Human Rights, the Human Rights Act 1998, goes further than our own European Convention on Human Rights Act 2003. That could be introduced as a general requirement, but emergency legislation especially should be certified as compliant with human rights obligations.
Ms Sunniva McDonagh:
As we mentioned in our submissions, the first chief commissioner of the IHREC is the chair of the European Network of National Human Rights Institutions. That body has published a report dealing with various aspects of states' responses. Our written submission also refers to the report of the European Union Agency for Fundamental Rights. That examines each individual member state in detail. We would be happy to arrange for a hard copy of those four bulletins to be sent to the Deputy. It is exactly the type of information he might find interesting. They are available on the agency's website but I will arrange for hard copies to be delivered.
The idea behind international co-operation in this area is that there is one human rights standard. All countries should be held to the highest standard so that consultation between states should lead to higher standards. One interesting issue on which I will touch extremely briefly is tracing apps. The European Union Agency for Fundamental Rights has just published a series of best practices which touch on the various rights that are potentially impacted in this regard. This was done with the expectation that practices would be adopted uniformly throughout various member states. There is too much in those documents to summarise either of them, but I will send the Deputy hard copies.
In the earlier session we talked about a European co-operative model for the second wave, or indeed for another pandemic. If that were to happen, certainly there is learning to be had, not only by Ireland but other member states across Europe, to ensure there is a uniformity of approach. As the witness has said, there is already legislative cover there, and to be complicit with it is really important if we are to face a similar situation in the near or distant future.
I refer to the particular submissions made by Ms McDonagh and Ms Gibney. In their introduction, they raised the gaps in the State's legislative framework. In particular, they highlighted legislation that is close to my own heart, the Assisted Decision-Making (Capacity) Act 2015, and indeed also the Mental Health Act. Could they elaborate on that? The second element to which I refer is on page 2 of the witnesses' submission, namely, the adequacy of the State's legislative framework in its response to the pandemic. Could the witnesses broaden out on those two points for me?
Ms Sinéad Gibney:
Absolutely. There has been an impact assessment of the Assisted Decision-Making (Capacity) (Amendment) Bill 2019, on which we have commented on multiple occasions. The legislation will provide for a human rights approach to capacity that is decision-specific. It will end the wards of court system, which is based on a black-and-white assessment that the person either has, or does not have, the capacity to make decisions in all areas of their life. While the focus has been on the establishment of the decision support service, the legislation also requires significant change in the legal system, including legal aid court services, and makes provision for the Department of Health to make regulations on advanced healthcare decisions. We have mentioned this in numerous treaty reports and it is something on which we will continue to work. I apologise to the Deputy, but I was looking for my notes when he asked his second question, so I did not hear it.
I referred to the point made by the witnesses in page 2 of their submission about the adequacy of the State's legislative framework and its response to the pandemic. The submission sets out a number of bullet points in that regard. I ask Ms Gibney to expand on that. Before she comes back in, I want to turn to FLAC because I am conscious of my own time. I apologise for not having more time to discuss the various submissions.
I remind Ms Barry and Mr. Bowes that the impact of the restriction on court sittings was discussed in a previous session of the committee earlier today. I compliment FLAC on the very substantial submission it made to the committee. It is greatly appreciated and there is a lot of information in it for all of us to digest. I ask the witnesses to comment on the impact that delays in court sittings and trials are going to have on their own work.
While the clock is in my favour, I would like to put a question to Mr. Herrick and Ms Ansbro of the ICCL. They commented in a previous submission about the response being balance-necessary, and the resources being in place. If we were to face a second wave here in Ireland, how would the witnesses suggest that the State respond differently from the way it did, given the short period we may have between now and if that were to happen? If the witnesses would not mind answering, I would greatly appreciate it.
Ms Eilis Barry:
I am happy to deal with the question about court delays. We have argued for some time that both the Courts Service and the Legal Aid Board are central to the administration of justice and the rule of law, and need to be resourced accordingly. In effect, the majority of court proceedings were adjourned for six months, and before that there were already significant delays in a number of respects. It is our contention that the Courts Service has not been properly resourced and needs to be properly resourced. It has been very evident that huge efforts have been made to conduct urgent hearings, but what has happened in the last six months will add at least six months to the delays that are already there. While hearings are beginning to be heard, that is only happening on a slow basis. We also express concerns about online hearings being seen as a remedy to delays.
While we welcome online hearings, we do not believe that they are suitable in all cases and in relation to all litigants, particularly people with literacy or language issues, or who may have mental health conditions. In addition, the digital divide needs to be resolved and that is something that is beyond the Courts Service. Both the Courts Service and the Legal Aid Board have always been, essentially, the poor relations of the administration of justice. We are anxious that access to justice would be factored into the Government's response to the pandemic.
Ms Sinéad Gibney:
I will finish the point about the legislative gaps before I pass over to ICCL. The point is that in that second section we focused our analysis on specific pieces of legislation that we believe, had they been in place ahead of the pandemic, would have enabled various groups to better assert their rights throughout the pandemic. These are pieces of legislation that can be progressed. They are ready and waiting to move forward. That is our key message within that section.
Mr. Liam Herrick:
With regard to how we might do things going forward, I think it is a very good time to be asking those questions. Today's session is very well timed. We understand the Government is to announce changes to the overall infrastructure and approach next week. The emergency legislation expires shortly, so we will be looking at a review there as well.
First, I think we should review the operation and composition of NPHET at this particular point in time. It has served us very well, particularly in the early phases, but now we might look at examples that Ms Ansbro has referred to of other jurisdictions that have broader expertise, because the decisions now, and the areas and questions it is considering, are not just about arresting the spread of a disease. They are about much more complex considerations and we should review that. We should look at whether we can strengthen its independence in terms of how its role is clearly separated from giving independent expertise and advice, and the deliberations that Government must undertake, subsequently, to weigh up that and translate it into executive action. We need better and clearer communications from Government.
In the legislative process, which the committee has heard a lot about today, we need to have better consultation and greater transparency. If that requires more resources going to those drafting the legislation, which I think it may, we need to look at that, and certainly to put a central role back to the Oireachtas.
The Oireachtas was not sitting and functioning properly for a period of time. That is no longer the case and the Oireachtas is back now. It should be front and centre in considering any legislation, including regulations. If all those things happen, we can have a stronger level of public support and co-operation, which will help everybody.
I thank Mr. Herrick. If the various Oireachtas committees and subcommittees are up and running, oversight and scrutiny will be there, which is important. Hopefully, there will also be a unity among the various participants of those committees. I thank the witness for his answer.
I thank Deputy Deviln.
With that, we have gone over our two hours. We try to finish within two hours. I asked the questions I had earlier. If nobody else has any questions, or there is nothing that any of our witnesses wishes to add, I would like to thank the witnesses for coming. I apologise that we came to them half an hour later than we had anticipated, and kept them longer than we had anticipated. I thank them for sharing their expertise with us and answering our questions. With that, I adjourn the meeting until tomorrow morning, when the committee will hear from HIQA on the matter of nursing homes, specifically its report into same.