Covid-19 restrictions raise ‘human rights and equality concerns’

The State’s human rights watchdog has raised concerns about Covid-19 restrictions, saying aspects of how laws have been formulated, enforced and communicated “raise significant human rights and equality concerns”.

The Irish Human Rights and Equality Commission report argues there is a "black hole" for considering the impact of regulations on human rights, with the delegation of powers to the Minister for Health making it "difficult to maintain effective democratic oversight".

The report warns the National Public Health Emergency Team (Nphet) lacks human rights expertise.

It finds in many instances, there is a justification for public health interventions to slow the spread of Covid-19 due to the State’s obligation to protect public health.

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However other aspects are problematic, including “the erosion of procedural safeguards” for detaining someone on mental health grounds.

The study was done for the commission by experts from the Covid-19 law and human rights observatory in Trinity College Dublin.

It finds regulations have been “applied retroactively, are frequently not published for several days after they are made, are misleadingly described in official communications and are inadequately distinguished from public health advice”.

It argues Government communications “attempted to secure the quasi-legal enforcement of public health advice, in a manner that may infringe the principle of legality”.

Democratic oversight

That most restrictions are introduced through regulations by the Minister for Health “makes it difficult to maintain effective democratic oversight” and “it is difficult to avoid the conclusion that the delegation of legislative power . . . has resulted in a black hole for the consideration of human rights and equality concerns”.

Problems in the law-making process “are exacerbated by the relationship between Nphet and the Government”. At times Nphet acted as “de facto decision-maker”, and there is a risk that public health advice “captures the whole decision-making process”. “This would be problematic both because important decisions should be made by democratically accountable actors and because Nphet has no particular expertise in human rights and equality.”

Nphet “remains a powerful actor in the decision-making process in a way that diminishes attention to human rights and equality concerns” as it “lacks the expertise”.

Rule-of-law concerns

It finds parliamentary oversight of laws and regulation relating to Covid “has been lacking in several respects”, and raises rule-of-law concerns, arguing some regulations have not been published before coming into force and that “official government statements have provided misleading accounts of what the law requires”.

There has been a tendency “to blur the distinction between the regulations and public health advice, making the content of the law unclear” which is “contrary both to domestic legal principles as well as foundational principles of international human rights law”.

This, it finds, “allows for the targeting of measures at disadvantaged and vulnerable groups that would not survive scrutiny if effected through a law” and “creates a real risk of the uneven application of enforcement powers by the gardaí”.

It finds the extension of some powers established in March 2020 to June 2021 is “highly questionable”. Some restrictions have “been implemented in ways that breach the rule of law and that disproportionately affect disadvantaged and vulnerable groups”.

Vagueness in the formulation and application of pandemic rules is particularly problematic “if you come from a group with a history of bad relations with the gardaí”, the report finds.

The report makes 18 recommendations, including the establishment of a Oireachtas committee on human rights and the introduction of sunset clauses on Covid rules.