Q: What is the Oireachtas doing to deal with the Covid-19 outbreak in Ireland?
A: It is rushing through a Bill with sweeping powers that at any other time would be considered draconian and punitive. Its full title is the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. It will give the Minister for Health Simon Harris powers to restrict the movement of people; to detain people who have Covid-19 (or are carriers) but are refusing to self-isolate; and essentially quarantine entire areas and put them into lock-down. Those found to have breached certain restrictions will find themselves subject to fines and possible imprisonment, as is happening in Italy and France.
It is based on legislation from 1947 which was designed to curb the spread of other infectious diseases such as tuberculosis (TB) but the powers are more extreme.
Q: Are there other measures?
A: Yes. The legislation also provides for the hundreds of thousands of people who find themselves out of work as businesses close, or who have been forced to take sick leave. It provides for them to be entitled to jobseeker's allowance after three days of being let go, or sick leave.
Q: What about travel?
A: The legislation gives sweeping powers for restrictions to be imposed upon travel to or from the State. Already any traveller coming into the State from overseas (including Britain but not Northern Ireland) faces a health check and a request that they self-isolate.
The Bill goes much further than that. It gives the Minister power to make an “affected area order”. That is defined as an area or region in the State where there may be sustained human transmission of Covid-19, or a risk of it.
The Minister can then restrict travel to and from that area. So if there is a cluster of cases in a town or region and it is considered the outbreak there is serious, travel bans can be imposed in relation to going to that region, and leaving that region. In essence, the region is put into lock-down as we have seen in Italy and France, and Madrid.
Q: Is that the extent of the measures imposed in those affected areas?
A: No, unfortunately. Travel restrictions can also be imposed upon people living or working in those areas. They may be required to remain in their homes or in their place of work, or accommodation (if visiting). That would leave them in the same situation as the entire populations of Italy and France, who are allowed to leave their homes only for very limited reasons such as grocery shopping or getting medical supplies. They need to carry a form stating the purpose of their journey each time they leave their home.
Q: And what about events?
A: Since the crisis escalated, severe limits have been put on numbers attending outdoor and indoor events with limits of 500 and 100, respectively. In reality, few events have been taking place, especially since pubs and sit-down restaurants have been closed.
The new powers will allow the Minister to shut down any event which “could reasonably be considered to pose a risk of infection with Covid-19 to persons attending the event”.
On top of all that, there is a kicker: a wide-ranging provision that allows “any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19”.
That theoretically sets no limit on what can be done to contain the spread of the virus.
Q: So what happens if somebody contravenes any of the orders?
A: Anyone who contravenes a regulation who wilfully obstructs its implementation or gives false or misleading evidence in purported compliance with this regulation shall be guilty of a Class C offence. That essentially will result in a fine of up to €2,500.
An amendment to the Bill, Section 31A, published on Wednesday now also provides up to 3 months in prison.
It also gives a clear definition of what constitutes an offence. It is an offence to obstruct or interfere with a relevant person exercising power under the law. It is also an offence to refuse to give necessary information to a relevant person, or to give false or misleading information.
It is also an offence to refuse to comply with a Garda’s direction . A person can be arrested without warrant for failure to comply with the direction.
Q: What are the powers of detention?
A: These give most concern to those who advocate on behalf of civil liberties but, given the exceptional and grave circumstances, none have raised specific objections.
If a person who should be isolated because they are a potential source of infection refused to do so, the Bill will give the Minister power to detain those persons involuntarily.
An order of detention will be made to isolate the person “in a specified hospital or other place until such time as the medical officer certifies that the person’s detention is no longer required”.
A “relevant person” may request the Garda to detain a person. That severe power can be reviewed. In a way it is similar to a person being detained involuntarily under the current mental health legislation.
A new section has defined a relevant person as an authorised officer, a medical officer of health, an officer of the Minister for Justice and Equality,) an officer of customs , or a person, or group of persons, appointed by the Health Service Executive.
A relevant person can require a member of the Garda Síochána to assist in the exercise of the power or the performance of the function, including by way of temporarily detaining any person, bringing a person to any place, breaking open of any premises, or any other action in which the use of force may be necessary and is lawful.
Q: So how long will the law be operable?
A: It is an emergency piece of legislation and is designed to be temporary. There is an end date of May 9th, but that can be extended by the Minister. This is probably one of the more controversial aspects of the Bill. The extension can be made by the Minister. The Oireachtas does have the powers to vote the extension down but not until after it is made.
With other emergency legislation, the practice has been for the Oireachtas to vote on an extension before it is made rather than after it was made. Even then, some temporary emergency legislation such as Offences Against the State Act have become more or less permanent. Some TDs, notably Denis Naughten, and the Irish Council for Civil Liberties, have called for a sunset clause to be introduced in the legislation.
Q: When will it come into effect?
A: It is being rushed through the Dáil on Thursday and the Seanad on Friday. There were 86 amendments tabled by the Opposition, only a handful which were accepted, including the sunset clause.
The speed it has passed through the Oireachtas may mean the President could conceivably sign it into law over the weekend if there is not a constitutional doubt. Senator Michael McDowell was interesting on this issue of constitutionality in an oped piece for The Irish Times. He argues the Bill cannot rely on Article 28 of Bunreacht na hÉireann which allows emergency legislation "for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion". There is no military aspect to this. However, he writes that Article 24 can give cover as it is " by reason of the existence of a public emergency, whether domestic or international".
