Mr. Liam Herrick:

I thank the Chairman and members for their invitation to appear before the committee today. Over the past 16 months, the Government has taken a number of drastic and far-reaching measures to protect life and health and maintain economic activity and income. Some of those measures have involved very significant interferences with human rights. The choices the Government and the Oireachtas have faced have been onerous and complex and often had to be executed in a changing environment. Ireland did not suspend constitutional rights or derogate from its international human rights obligations. Everything that was done by the Government, unlike in some other jurisdictions, has been executed within human rights norms and subject to those norms.

Against those norms, the impact of Covid-19 and the State's response have been enormous. To step back and reflect on how extraordinary this period has been, we have seen that the role of our elected representatives in considering and enacting our laws has been diminished. Access to the justice system has been frustrated, including with regard to matters of liberty and the punishment of crime. We have been prevented from leaving our homes without a reasonable excuse under threat of fines or criminal prosecution and we have also been prevented, again under threat of criminal sanction, from meeting family or exercising our constitutional rights, such as those to worship and to protest. In addition, new systems of detention have been established to deal with those who may be ill or for people arriving into Ireland.

Since the onset of the pandemic in March 2020, the ICCL has assessed a wide range of measures introduced by the Government and recommendations have been made to the Government and to the Oireachtas across a broad range of policy areas. We have published reports, held public meetings and participated in public discussions on these matters. All our submissions and analyses are captured in our Human Rights in a Pandemic report, and that has been circulated to the committee as our submission in respect of the questions posed in this regard. At all times we have supported the public health effort, but we have also articulated our view that human rights standards provide a framework for how all these difficult decisions facing the Government could be made.

Our analysis is that the Government has done well in many areas, but the restrictions introduced in other areas have been disproportionate or have impacted disproportionately on some sections of society. I will focus on just some of these issues. The Government has failed to follow good practice in the development of laws during Covid-19. This topic has already been addressed by Professor Fennell, but the ICCL is deeply disappointed that the Oireachtas recently approved, albeit narrowly, the Government’s proposal to extend extraordinary ministerial powers until November, with the possibility of further extension. The refusal by the Government to accept even modest amendments which would have provided the Oireachtas with the role of reviewing regulations and to cease the use of criminal sanctions in a public health sphere is deeply regrettable. The ICCL calls for an urgent return to normal democratic practice in this regard.

The choice to rely on criminal law and police enforcement is a key theme in our report. The ICCL believes in following the science, and we have relied in our work throughout the pandemic on the work of behavioural scientists, such as that of Professor Lunn and his colleagues at the ESRI and the International Covid-19 Awareness and Responses Evaluation, iCARE, project of the National University of Ireland Galway, NUIG. We believe behavioural science indicates that while law and enforcement using criminal sanctions may play some part in underpinning a public health effort, the key elements in securing public compliance with public health guidelines lie in voluntary actions, clear and simple messaging and peer influence on behaviour.

We must remember that the behaviours addressed in public health guidelines are not criminal acts in any ordinary sense of the meaning of that word. The decision to involve An Garda Síochána in the enforcement of guidelines through criminal punishment rather than having a role as a front-line service protecting public health carries great dangers of damaging Ireland’s model of community policing by consent. These risks and dangers have been managed well during the pandemic through strong leadership from Garda management and robust oversight by the Policing Authority, but a return to normal policing must be a key stage in the recovery process. These extraordinary police powers also carry a risk of discriminatory application. In the early stages of the pandemic, this risk was largely mitigated by the inclusion of safeguards, such as prosecutions requiring consultation with the Director of Public Prosecutions, DPP. However, since the shift to fixed penalty fines, we have seen an emerging pattern of discriminatory application, particularly concerning enforcement against young men from certain urban areas.

While at present the restrictions on movement have largely been suspended, restrictions with criminal sanction continue for events. We are also seeing the emergence of a pattern of uneven application of those enforcement mechanisms. The ICCL is also deeply concerned about the continuing system of deprivation of liberty under mandatory hotel quarantine. The Government’s failure to provide clear criteria and justification for the continuance of the system and to meet certain minimum standards concerning conditions, inspection and accountability mean we can no longer support the continuance of the quarantine system as it prevails.

Finally, regarding all these areas, access to justice is crucial as a protective measure against potential denial of rights. There is an urgent need for additional resources in the courts system to allow it to address the backlog of cases built up during the suspension of hearings. This situation is especially acute concerning the criminal courts. We are now at a crucial stage of reopening Irish society, but we are not yet seeing a commitment to and a clear plan for returning to normal democratic rights and civil liberties. The ICCL calls on this committee to send out a strong message to the Government, and to the Department of Health especially, to commit to the end of the use of criminal sanctions in public health matters. Taking policing and criminal justice out of public health, restoring civil liberties and a return to democratic oversight should be the ultimate priority for the Government.