Basic rights and Covid: Rushed law on indoor hospitality a recipe for disaster

Divisive emergency legislation passed with little scrutiny poses a risk to our fundamental freedoms

A sign outside a restaurant in Rathgar, Dublin. Photograph: Brian Lawless/PA Wire

A sign outside a restaurant in Rathgar, Dublin. Photograph: Brian Lawless/PA Wire

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Equality before the law is a fundamental principle of our Constitution and of international human rights law. Equality is about ensuring everyone has equal access to opportunities in our society, that no one gets left behind. Equality guarantees also mean that the State has special obligations to prevent private bodies perpetuating discrimination and inequality.

With the proposed domestic vaccine passports system, the Government intends to introduce legislation that would write discrimination on the basis of health status into law, while also providing for discriminatory treatment of different age groups. The proposed scheme will have an impact on workers’ rights, the privacy and data protection rights of customers, as well as compromising the principles of a voluntary vaccination programme that has been so successful.

Liam Herrick, executive director at the Irish Council for Civil Liberties, said: ‘The importance of the separation of powers is key here.’ File photograph: Nick Bradshaw
Liam Herrick is executive director of the Irish Council for Civil Liberties. File photograph: Nick Bradshaw

We are now witnessing an unseemly rush to pass legislation to effect these proposals, with the Government arguing we have only a choice between this model and extended closure of the hospitality sector. However, how we have reached this point is important. The role of Nphet in offering scientific advice during the pandemic has been clear, but the role of government in assessing how to translate that advice to practical and balanced policies is more complex.

From the beginning of the crisis, the Irish Council for Civil Liberties and others have called on government to consider human rights and equality impacts before they make major decisions affecting society. It is notable that this Government, including the Taoiseach, were opposed to the idea of vaccine passports on civil liberties grounds as recently as two weeks ago. In making such a dramatic U-turn, there is little sign that the impact on human rights, equality and data protection have been considered in any meaningful way.

Right to scrutinise

In a democracy, emergency legislation should never be the solution to a political conundrum. To be clear – this rushed proposal is not a response to an urgent public health need; rather it stems from the challenge of trying to reconcile a prior calendar for reopening indoor settings, new modelling on increasing risk from Nphet, and the summer recess of the Oireachtas. Our elected representatives need to have a say in legislation that will affect so many people, and it is essential that the Dáil and Seanad assert their right to scrutinise this proposal.

Consider the rural restaurateurs who will have to ask their neighbours for private medical information and refuse or deny them access to their premises on that basis

Not only is this the wrong solution to the challenge of making hospitality safe, but it will also prove legally and practically unworkable. Industry and legal experts have shared this view. The proposal for enforcement is completely confused. We are particularly concerned that the infrastructure for verification does not exist and, in any event, would pose significant risks to data protection rights. The public health benefits of such a weak system of verification and enforcement are uncertain at best.

The Government must seriously consider how impulsively laying the foundations for a system that creates an infrastructure aimed at segregating individuals based on their health could be used in the future. The new legislation uses the term “indoor settings” and provides for settings outside of hospitality to be brought into the system. It is also unclear how long this “temporary” system will be in place, and the Government has shown a worrying tendency to retain emergency measures throughout the pandemic.

There is an opportunity here for the Government to rebuild a society that is less divided along lines of race, gender, disability or social class

It seems it is intended that the EU Covid-19 Certificate will now be adapted for access to domestic indoor settings. However, the European Data Protection Board and the European Data Protection Supervisor have previously warned that any member state that uses the certificate for purposes other than facilitating free movement between EU member states “may lead to unintended consequences and risks to the fundamental rights of EU citizens”. The two EU bodies further warned, “Any such further use of the Digital Green Certificate and its associated framework under a national legal basis should not legally or factually lead to discrimination based on having been (or not) vaccinated or recovered from Covid-19”.

More anomalies

The Government’s proposal also poses risks to community relations and undermines the solidarity that the Government has emphasised throughout its Covid response. Consider the rural restaurateurs who will have to ask their neighbours for private medical information and refuse or deny them access to their premises on that basis. Not to mention the staff who will be asked to work in premises they would not be allowed enter otherwise. The Government itself seems confused on how the system will operate, and it is inevitable that more anomalies will become apparent as this is rolled out, further undermining the credibility of our public health strategy.

This legislation will be seen by many as amounting to mandatory vaccination by the back door. Vaccine scepticism and vaccine hesitancy are flames that are being fanned by far-right elements spreading disinformation at the moment. Policies such as these only further entrench and alienate those people who are hesitant.

There is an opportunity here for the Government to rebuild a society that is less divided along lines of race, gender, disability or social class. Adding another division signals that Government does not intend to do this, and instead puts us on track to entrench and deepen existing inequalities. Government should row back on this unworkable idea immediately. We all went into this pandemic together, and we should come out of it together.

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