10 May 2020 (via email)
On behalf of the Irish Council for Civil Liberties (ICCL), I would like to congratulate you on your appointment to the Special Committee on Covid-19 Response. We welcome the establishment of this Committee and we believe that this Committee can play a crucial role in monitoring and contributing to the State’s response to the Covid-19 pandemic, particularly as we enter new phases of relaxing restrictions where democratic accountability of decision-making will be of even greater importance.
In line with the agreed terms of reference of the Committee, we would respectfully urge the members of the Committee to take two key issues into account in shaping the programme of work of the Committee:
- Call on Government to demonstrate how it is taking into account its human rights and equality obligations in shaping its response to Covid-19; including requiring detailed data from Government on the impact of the pandemic and the impact of the State’s Covid-19 response on vulnerable and marginalised communities.
- Pre-legislative scrutiny of any proposed regulations under the emergency health legislation; including seeking explanation and justification from the Minister for Health on the need for any such regulations, and the need for any powers of enforcement in any such regulations.
1. Human Rights Impact Assessment and Dis-aggregated Data on Impact
On 22 April, ICCL and a range of other civil society organisations submitted a joint letter to government outlining the need for a Human Rights Impact Assessment in a letter sent to the Taoiseach on 22 April 2020.
Such an assessment would identify those most affected by the virus, the restrictions, and the accompanying garda powers. It would also inform a comprehensive and appropriate response, in line with the State’s human rights obligations.
Collecting and publicising quantitative data on those affected by the virus, with due respect to privacy and data protection obligations, is essential to identify vulnerable and at-risk groups and allow policy supports and safeguards to be introduced to meet those needs. Statistics must be broken down by nationality, ethnicity, disability, gender and age.
Statistics on the impact of Covid-19 in congregated settings are of particular importance. Where a person affected by Covid-19 was living in a residential setting, it must be specified whether this was a care setting, a detention facility, or a direct provision centre. Where the person was in a care setting, it is vital we know if this was a setting for older people, people with disabilities, or people with mental health issues.
The inadequate living conditions in direct provision centres, which do not allow for adherence to public health advice, give rise to serious concern and should be addressed as a matter of priority.
The Committee should also take into account data on people who have been arrested, charged or detained under the Emergency Health Regulations or for related reasons, which has been collated by the Garda Commissioner and the Policing Authority. This data may help the Committee to monitor the consistency of enforcement of regulations across the State.
2. Pre-Legislative Scrutiny of Regulations under the Health (Preservation and Protection and Other Matters in the Public Interest) Act 2020
ICCL recognises that in light of the grave risk to life and bodily integrity that Covid-19 poses, legislation allowing for significant restrictions on our rights was necessary. However, from the outset ICCL has called for human rights obligations under the Constitution, the European Convention on Human Rights and international human rights treaties to be taken into account in the drafting of all relevant primary and secondary. The Health Act provides for what are essentially emergency powers, and the application of such powers gives rise to acute human rights concerns and demands close scrutiny and oversight.
We have now had three separate sets of regulations signed into law by the Minister for Health under the Health (Preservation and Protection and Other Matters in the Public Interest) Act 2020 – on 7 April, 11 April and 2 May. While there was some consultation (including with ICCL) in advance of the introduction of the first set of regulations; the subsequent extension of those regulations, including the extension of police powers of enforcement was not accompanied by any consultation or any publicly available analysis of the necessity or proportionality of the regulations.
The terms of reference of this Committee clearly prescribe a role for the Committee in pre-legislative scrutiny of primary or secondary legislation. The current regulations expire on 18 May, and it is of paramount importance that this Committee asserts its role in ensuring effective pre-legislative scrutiny of any proposed further regulations, to ensure they meet the tests of lawfulness, necessity and proportionality.
- The Minister for Health should be asked to set out his intention with regard to the expiry of the present regulations and whether he intends to introduce further regulations from 18 May.
- If the Minister does propose to introduce further regulations, the Committee should consider calling on the Minister to afford this Committee an opportunity to consider any proposed regulations in advance of their introduction.
- The Minister should also be called on to provide the Committee with details of any analysis or consultations carried out by his office or by other Government officials concerning the introduction of regulations under the Act.
- A critical question for the Government and the Oireachtas with regard to any future regulations is the role An Garda Síochána should have in supporting the Government’s public health efforts, including the enforcement of legislative powers where appropriate. We note that during the first period of public health restrictions on movement (from 27 March to 7 April), the Garda successfully supported public health measures by providing guidance and advice to the public. Any further decision to assign powers of enforcement to gardaí should be supported by evidence that enforcement (rather than guidance or advice) is absolutely necessary. The data provided by the Garda Commissioner and the Policing Authority on enforcement of the regulations over the period since 7 April should be considered by the Committee in this context.
ICCL believes that this Committee can play an essential role in helping to shape and hold to account the Government’s response to Covid-19, and we are available to support and assist the Committee in its work in any way that it may deem appropriate.
Liam Herrick, Executive Director,
Irish Council for Civil Liberties.
To add your voice to the call for a Human Rights Impact Assessment, follow this link.