Between enabling and suffocating legal measures
Tensions between welfarisms that enable and those that suffocate are evident in Ireland’s move to restrict the spread of the COVID-19 pandemic, and in the reaction to it.
Two pieces of emergency legislation passed through Oireachtas Eireann (the Irish Parliament) by March 26th. The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and the Emergency Measures in the Public Interest Act 2020 address a range of social, civil and economic issues.
The former provides for the powers to restrict movement and participation in social activities by amending existing public health legislation, i.e., the Health Act 1947. The measures include specific powers to restrict travel within and across state borders including with Northern Ireland, to require people to remain in their homes or in specified places, to prohibit events or classes of events, and to require safeguards to be put in place by event organizers, owners or occupiers of a premises, and managers of schools, universities or other childcare or educational facilities. The legislation has been implemented through the adoption of Regulations authorized by the Minister for Health, the first of which was adopted on April 7th with the original intention of running until April 12th (SI 121). It has been extended three times since then through amendments and now will run until June 8th (SI 174).
As the easing of lockdown began on May 18th, the new regulations have modified the restrictions, e.g., through extending the distance people can move from 2km to 5km. The Irish Council of Civil Liberties (ICCL) has called, jointly with others, for a human rights impact assessment of the measures, and continues to call for a return to policing by consent rather than coercion. An Oireachtas Special Committee on COVID-19 has been established to hear evidence and inform and scrutinize decisions, and is due to hear evidence on care homes and direct provision centers the week beginning May 25th.
Police checkpoints have been set up by the Garda Síochana throughout the country in order to check on people’s reasons for travelling and assess whether they amount to a ‘reasonable excuse.’ The official position is that the purpose of the policing measures is to seek compliance and that prosecutions will only be used in the last instance. Breach of the penal public health provisions constitutes a class C offence, carrying the possibility of a fine of up to €2,500, or 6 months imprisonment. By April 25th, 76 people had been arrested because they were more than 2km from home without being able to show they were making an essential journey and after not complying with gardaí urging they go home.
Armed members of the police force have been seen at checkpoints, causing concern that this policing presence is more threatening than usual. Other concerns address the use of spithoods, which cover the face of someone being detained or arrested and have been defended as an appropriate response to incidents of malicious spitting. Their effectiveness in preventing infection has been questioned, and hooding could constitute degrading treatment in breach of human rights protections.
The judiciary has evaluated the measures in the context of a rightwing libertarian challenge to the legislation, which the High Court had no trouble dismissing in O’Doherty and Waters v the Minister for Health Ireland, the Attorney General and Dail Eireann, Seanad Eireann and the Ceann Comhairle  IEHC 209 (2020 271 JR). The applicants had sought a judicial review of the legislation, claiming, among other things, that the statutory measures restricting movement were disproportionate in their infringement of constitutional rights (including family rights 41.1.1, freedom of conscience 44.2.1, rights to bodily integrity, peaceful assembly and liberty under Article 40).
Interestingly, the judge begins his judgment and lays out the factual context for the application by referring to the World Health Organization’s tracking of the outbreak and its January announcement that COVID-19 represented a Public Health Emergency of International Concern. Charles Meenan J ruled, citing the Supreme Court in Esme v Minister for Justice and Law Reform  IESC 26 on the need for an applicant for judicial review to show that an argument “was not empty” — they had not shown that they had an arguable case, that the constitutional rights they invoked were not absolute, and that they had evidence to attest to a disproportionate infringement of rights.
Selective care and the uneven impact of legal restrictions
There has been extensive disquiet about the uneven impact of these measures, particularly given their potential to exacerbate already existing disadvantage.
Direct provision is the system for accommodating asylum seekers in Ireland, which sends people to live in former convents, barracks, hotels, holiday homes. It has been extensively criticised as a form of institutionalism which stigmatizes, segregates and isolates residents. Living arrangements mean that residents share eating areas and have little privacy. As a result they cannot “social distance.” At a direct provision center in Cahirciveen there have been reports of residents being “advised” that they cannot leave; at the same time centers are seeing the spread of COVID-19, which raises concerns about arbitrary detention as well as individual and public health.
Those living in confined circumstances for other reasons – such as women living with domestic violence, prisoners, and those living in care homes – are among those who have been, or are likely to be, disproportionately impacted by the virus and the public health restrictions taken to contain and limit its spread.
Escaping domestic violence is recognized as a legitimate reason for leaving home during lockdown. There has been a 20% increase in reported domestic violence incidents compared to this time last year. While supports have improved, the threat of violence has not diminished, and is being exacerbated by the stressful conditions of lockdown. The Domestic Abuse Intervention and Policy Unit of the Garda National Protective Services Bureau have launched Operation Faoiseamh (relief), where guards will proactively contact those who have previously reported domestic violence. And two years after a legal source of violence against women and pregnant people was removed from the Constitution when the abortion ban was repealed, the pandemic has brought about the permission and establishment of a remotely administered abortion service.
Compliance with the restrictions seems to be high and public trust in the Chief Medical Officer Tony Holohan, who leads on coordinating the public health response and the regular public briefings, seems to be holding. One current risk for public trust and democratic accountability however, is the fact that the situation is being overseen by a caretaker government. The acting Taoiseach (equivalent of Prime Minister), Leo Varadker, and the Fine Gael government are running the country and responding to the crisis, but do not actually have a mandate. There was no clear winner of the general election on 8 February with public support fairly evenly split between three parties Fianna Fáil (38 seats), Sinn Féin (37) and Fine Gael (35), and a number of other smaller parties such as the Green Party (12) and the Social Democrats (6) winning seats alongside a range of independents (19). Fine Gael, Fianna Fáil and the Green Party have agreed in principle to work together on a program for government; negotiations as to that program continue.
The relative success of Sinn Féin, and the weak showing of the then-ruling party was widely seen as the result of public frustration at the failures to develop a public infrastructure which would share the benefits of economic growth. Sinn Féin’s promise to tackle health and housing was popular with younger voters in particular and is sometimes framed as evidence of a Mouffe and Laclau kind of left populism. How will their exclusion, by the coalition of the two parties who have held power since the foundation of the state in 1922, play out as Ireland turns towards an economic downturn and continued civil restrictions? It remains to be seen as COVID-19-related concerns over selective care in governance, policing, hospitals, and homes speak to ongoing tensions over failures to respect the civil rights of those who participate in the reproduction of everyday life.
Dr. Ruth Fletcher is a Senior Lecturer in Medical Law at Queen Mary University of London.