18 May 2020
Dear Members of the Special Committee,
Further to our email to the Committee on 10 May, ICCL had strongly urged the Minister for Health to carry out a human rights impact assessment ahead of any new or extended regulations under the Covid legislation.
We are disappointed that no such assessment was undertaken, and that the Minister did not demonstrate the necessity for further regulations and Garda enforcement at this time. We are also disappointed that the Minister did not avail of the opportunity to consult with this Committee before determining to introduce these latest regulations. We hope that the Committee will play an active role in pre-legislative scrutiny of any further regulations.
In that regard, we understand from media reports and comments by the Minister for Health, that he intends this week to enact additional regulations making a 14 day quarantine for people entering Ireland a legal requirement. Such regulations raise a number of human rights issues.
First, creating a blanket legal requirement to self-isolate is a significant interference with the right to liberty and free movement. Any such interference must be proven to be necessary and proportionate to the ongoing health risk posed by Covid 19. This means that there needs to be clear advice from health experts that this is required. And it needs to be the least interference possible to achieve public health aims. If such advice exists it should be put before the Oireachtas and before the people.
We are concerned that a blanket imposition of quarantine without connecting such a significant limit on rights to specific contexts such as the reproductive rate of the virus in a particular country, duration of stay in that country or activities undertaken abroad is too broad a restriction on rights to be proportionate. Before making such regulations, the Minister must provide evidence that such an approach is in line with expert health advice, is necessary and is a proportionate interference with the right to liberty.
Secondly, we are particularly concerned at suggestions that An Garda Síochána may have a role to play in enforcing new regulations on mandatory quarantine. We believe such an approach to be unnecessary and disproportionate. Furthermore such an approach is not in line with our understanding of the position of the World Health Organisation.
A WHO representative, Margaret Harris, made it clear on Irish national radio last week that the WHO has cautioned that heavy-handed enforcement of quarantine measures could be counter-productive to health aims because police enforcement could drive people underground. This could result in people not seeking the health support they need or trying to conceal symptoms. It is not clear that an approach to quarantine restrictions based on health authority tracing and follow up is or would be inadequate.
Thirdly, we believe an approach that might see a Garda member knocking on private residences to enforce quarantine controls would be a significant interference with the Constitutional right to the inviolability of the home and would go beyond the powers envisaged in the Emergency Health Legislation.
We believe that at this stage of the response to the crisis, extraordinary police powers should be reduced and not enhanced. The complexity of Phase 1 provisions on essential work and essential retail already present members of An Garda Síochána with an unenviable challenge of interpretation and application. In this context, ICCL cautions strongly against adding a new layer of legal powers of enforcement, where no necessity has been demonstrated, and which will engage the gardaí unnecessarily in matters giving rise to grave interferences with constitutional rights.
We urge the Committee to ensure that its role in pre-legislative scrutiny is fully carried out before any new regulations are signed by the Minister for Health. As such, we recommend that you consider calling the Minister for Health before you as a witness to, at the very least, explain his intentions on these issues before any new regulations are signed.
Executive Director Irish Council for Civil Liberties