ICCL sends briefing to Oireachtas: Mandatory Quarantine and Human Rights Concerns

Health (Amendment) Bill 2021

ICCL Briefing Note

25 February 2021

The Irish Council for Civil Liberties (ICCL) is appalled at the planned steamrolling of the Health (Amendment) Bill 2021, (the Bill) through both houses of the Oireachtas today and tomorrow. This is an affront to our democratic system of law making. The Bill contains provision for significant interference with fundamental rights and requires the thorough, effective scrutiny that is necessary for a valid proportionality assessment, as required under Bunreacht na hEireann and under human rights law. Rushing the Bill through the Oireachtas deprives the people in Ireland of a key safeguard against a disproportionate interference with our rights.

On a preliminary reading of the Bill, while highlighting that this document does not constitute a thorough or complete assessment of the constitutional and human rights impact of its content, ICCL has identified a number of significant human rights concerns. These concerns are outlined below and we urge all members of the Oireachtas to consider these issues before deciding how to vote on a Bill that has such an impact on our rights and significantly expands the powers of An Garda Síochána.

If the Bill passes, we urge Government to ensure that the legislature is given the opportunity to carefully scrutinise any regulations made pursuant to this Bill and demand opportunities for further debate and amendments to the law.  We urge Government to conduct a human rights impact assessment for this Bill and any subsequent regulations and we echo the Irish Human Rights and Equality Commission’s recommendation that a Joint Oireachtas Committee on human rights, equality and diversity must be set up to scrutinise legislation with such a significant impact on rights.[1]

We urge the Oireachtas to demand that on the expiry of this legislation in three months from date of commencement, (if passed), sufficient time is given to members to scrutinise and debate its contents before it is renewed, if that is proposed, including a consideration of the human rights impact of its operation. We consider all emergency legislation should be subject to extensive Oireachtas debate and scrutiny before its renewal.

ICCL’s initial concerns about this Bill, expanded on below, include the following:

1. Mandatory quarantine is a form of detention and requires the State to uphold the highest standards of care for those detained. The Bill omits to include a requirement of an individual assessment of needs of all those proposed to be quarantined.
2. The Bill omits to include a system of inspection for places of quarantine.
3. The Bill omits to include provision for access to an independent advocate for those who may need assistance appealing their quarantine or access to legal advice.
4. The Bill creates new criminal offences and provides for an expanded role for the Gardaí, which ICCL considers are unnecessary and potentially disproportionate.
5. The Bill includes a new requirement for a person to “adduce evidence” of reasonable excuse for leaving their home if prosecuted. This goes beyond the ordinary types of evidence acceptable in our Courts where oral testimony is considered an acceptable form of evidence.
6. The Bill includes a significant increase in fines for other public health related criminal offences, which ICCL considers are unnecessary and potentially disproportionate to those criminal offences, including the crime of attending an event at a private dwelling.
7. The Bill appears to introduce a retrospective application of penalties for the crime of leaving your home to go to a port or airport. Retrospective application of penalties is forbidden under international law.
8. The Bill addresses data protection concerns without specifying that a Data Protection Impact Assessment has or will take place.

 

Quarantine is a form of detention and triggers a high duty of care

The Bill proposes to introduce a system of mandatory quarantine in designated centres for certain categories of travellers entering Ireland. This is a state organised system of detention. ICCL recognises the important and urgent imperative of reducing transmission of Covid-19 and preventing new strains of the disease from entering the country. The control of infectious disease is a legitimate aim under human rights law that permits deprivation of liberty.[2] However, any state organised deprivation of liberty carries with it significant duties and responsibilities. The government must take these duties seriously and treat anyone detained with the utmost respect for their dignity. It must be understood that the State has a significant duty of care towards all those who are detained.

Health and Welfare Assessments

ICCL welcomes the fact that the Bill provides that all designated centres will be assessed for their suitability to meet the “health and welfare” of those who will be detained in the facility.[3]  However, Government must ensure all individuals to be quarantined are assessed by medical professionals for their health and welfare needs prior to or immediately upon being detained in quarantine to properly ensure their care. This must be provided for in subsequent regulations if the Bill is passed.

Inspection of quarantine centres

The government must ensure that there are regular inspections of places of quarantine centres. These inspections must be regular, unannounced and focused on ensuring that the dignity and human rights of people detained are respected.[4]

Access to legal advice and advocate

It is positive that the Bill provides for an appeal mechanism under s.7 and that an officer must give reasons for refusing an appeal.[5] However, there will be people who need assistance in understanding that they have a right to appeal, how to appeal, and how to make their arguments. Provision for access to legal advice and to an advocate, in particular where someone has reduced capacity, is vital.

S.23(b) of the Bill proposes to allow movement between quarantine facilities where  “necessary or expedient to do so for the health and welfare of the traveller or for any other good reason.”  We have seen in the Direct Provision system that movement between centres without consent can cause great distress. We urge Government to ensure that any movement between centres is based on consent of the person quarantined, or, at least, that there is a requirement of notice and reasons given to the person quarantined proposed to be moved.

Draconian powers for the Gardaí

ICCL agrees with the Policing Authority that the Gardaí should not be required to transport or supervise mandatory quarantine.[6] The Bill provides that the Gardaí can assist in detaining individuals, forcing them into quarantine, and forcing them to return to quarantine. We would emphasise that this is a deprivation of liberty and that all individuals must be treated with respect and dignity. The Gardaí must approach this role first and foremost as a community service with explanation and encouragement required before police powers, including use of force, are engaged. ICCL believes there should be a requirement for a health worker or medical practitioner to first explain the necessity of quarantine to anyone refusing to quarantine before Gardaí should be involved.[7]

Mandatory Testing

The Bill creates a new offence for a person to refuse a Covid-19 test, and specifically identifies an RT-PCR test. This is the first time a Bill proposes to introduce mandatory testing and given the impact on bodily integrity of a person, we highlight the need for a proportionality assessment. We also question whether introducing a requirement to take a specific test is appropriate for primary legislation given that testing methods may evolve with time.[8]

New search powers for Gardaí

The Bill creates new search powers for Gardaí. The power of search engages the right to privacy. We question whether such powers are necessary and whether their exercise can be a proportionate interference with the right to privacy in the context of a public health effort.[9]

Onerous costs

The Bill makes clear that the cost of mandatory quarantine will be borne by the traveller.[10] ICCL urges Government to provide for a needs assessment for those who cannot afford quarantine. We also question whether the extension of covering costs to include medical care is consistent with our public health system?

Data protection concerns

ICCL welcomes the inclusion of measures to ensure compliance with Data Protection law, including the General Data Protection Regulation and the Data Protection Act 2018. However, we ask whether there has been or will be a Data Protection Impact Assessment, as required by law?

We are also concerned at the power created for the Gardaí to inspect records held by quarantine centres. This power to inspect should not be a general power but should be contingent on reasonable suspicion that an offence has been committed.

We are also concerned that the Bill creates the power for the HSE to use such records for contact tracing. We suggest there should be requirement of consent for sharing data for the purposes of contact tracing. We would also ask how the 42 day retention period is calculated?[11]

Criminal justice concerns: Expansion of fines, concerning expansion of garda powers, evidentiary requirements and potential retrospective application of punishment

Expansion of Fines

Section 5 of the Bill increases all fixed penalties for all Covid restriction breaches to up to 2000 euro from a previous maximum of 500 euro. ICCL would question the necessity of increasing fines for a breach of Covid restrictions. We are particularly concerned at a notable inconsistency in policing, including the apparent differential application of the law, given reports that over half of fines were given to a particular category of age and gender.[12]

Section 6 of the Bill increases fines for private dwelling related offences, including attempting to attend an event in a private dwelling, from 1000 euro to 4000 euro. ICCL would question whether this significant increase is necessary and proportionate to the offence. This is an offence ICCL has voiced significant opposition to previously given its implications for the Constitutional protection of the home.

General criminal law principles that punishment must fit the crime must be taken into account by lawmakers. ICCL would highlight the fact that behavioural psychologists have consistently stated that research shows the best way to ensure compliance with public health guidelines is through positive encouragement and social engagement, not through threat and punishment.[13] The trend of increasing punitive sanctions in lieu of a focus on positive and targeted messaging and supports for compliance with public health guidelines and restrictions must end.

New evidentiary requirements for reasonable excuse

The Bill proposes to add a requirement to “adduce evidence” of reasonable excuse, where a person seeks to rely on a reasonable excuse for leaving their home in Court.[14] This creates an unjust and impractical burden on a defendant. Oral evidence is an acceptable form of evidence in our Courts and an additional requirement to ‘adduce evidence’ appears to be unnecessary and may constitute an interference in the right to a fair trial and the right to be presumed innocent.

Retrospective application of the law

ICCL is particularly concerned at the proposed new s.31AA, which appears to be attempting to apply criminal law retrospectively.[15] This contravenes a fundamental principle of human rights law. The European Court of Human Rights has stated repeatedly that punishment cannot be retrospectively applied.[16] It appears that fixed penalties for the offence of going to a port or airport without reasonable excuse were not previously provided for in primary legislation. Subsequent legislation cannot seek to retrospectively legalise punishment. The Bill proposes the following: “A fixed payment notice given, during the relevant period, under section 31C to a person in respect of an alleged offence consisting of a contravention of the provision referred to in subsection (1) shall be deemed to be, and always to have been, valid.” This must be removed from the proposed Bill.