RESEARCH SERIES Ireland’s Emergency Powers During the Covid-19 Pandemic Conor Casey, Oran Doyle, David Kenny and Donna Lyons Ireland’s Emergency Powers During the Covid-19 Pandemic Report prepared for The Irish Human Rights and Equality Commission by The COVID-19 Law and Human Rights Observatory Conor Casey, Oran Doyle, David Kenny and Donna Lyons First published in February 2021 by the Irish Human Rights and Equality Commission 16–22 Green Street, Dublin 7, D07 CR20. Copyright © Irish Human Rights and Equality Commission February 2021 The Irish Human Rights and Equality Commission was established under statute on 1 November 2014 to protect and promote human rights and equality in Ireland, to promote a culture of respect for human rights, equality and intercultural understanding, to promote understanding and awareness of the importance of human rights and equality, and to work towards the elimination of human rights abuses and discrimination. ISBN 978-1-913492-03-8 Acknowledgements Foreword The authors of this Report are all members of the COVID-19 Law and Human I am delighted to present this report by the Trinity College Dublin COVID-19 Law Rights Observatory at Trinity College Dublin.1 The Observatory was established and Human Rights Observatory, which we commissioned in autumn 2020. We in June 2020, with the support of the Trinity College Dublin COVID Response did so in order to take stock of, and to better understand, the human rights and Fund, to engage in research across the full range of Ireland’s legal response to equality implications of the emergency measures undertaken since March 2020 to COVID-19, with the aim both to inform the public and to provoke public debate. tackle the COVID-19 pandemic. The Observatory maintains the only consolidation of the regulations introduced by the Minister for Health, a catalogue of official statements and documents related The pandemic has posed an unprecedented and complex set of challenges to to the pandemic response, and a blog that has addressed many issues, including both State and society. Thousands of people have lost their lives and many more all those mentioned in the Introduction that have fallen outside the scope of this have experienced severe illness, while hundreds of thousands have seen their Report. On 10 December, we published ‘Law and Policy Responses to COVID-19 in livelihoods affected. Many more have seen essential services, support mechanisms Ireland: Supporting Individuals, Communities, Business, and the Economy’. Further and community structures, on which they rely, stripped away and severely curtailed reports will be published in the coming months. by the pandemic, and by the measures put in place to tackle it. We wish to record our thanks to all other members of the Observatory whose work COVID-19 is more than a public health crisis. It is arguably the most significant set over the past six months has formed the basis for this Report, and in particular to of human rights and equality challenges Ireland has ever faced. The way in which Mark Bell, Mel Cousins and Andrea Mulligan who commented on earlier drafts. We state and society meet these challenges, and adapt and improve as lessons are were hugely fortunate to benefit from the excellent research assistance of Daniel learned, will be a measure of how durable Ireland’s commitment is to human rights Gilligan, Kate Heffernan and Cian Henry. We are grateful to the Commissioners and and equality, and how much we need to strengthen our efforts. staff at the Irish Human Rights and Equality Commission for their support, advice and expertise. This partnership has enabled us to produce a Report that will both From the outset of the pandemic, and from the earliest introduction of legal and inform the public and—we hope—provoke debate on our response to one of the policy measures to address it, the Commission has stressed the need for the State greatest challenges Ireland has ever faced. to have regard to the human rights and equality impacts of its emergency decision- making. The COVID-19 crisis presented an unprecedented challenge to the State, and its obligation to protect the rights to life and health. However, it remains essential, and is in the public interest, that human rights and equality norms are upheld to the greatest extent possible. This adherence to the principles of human rights and equality is not only important to protect people in times of crisis, it is also about protecting against erosion of our values, our democracy, and the rights and equality we all deserve . In particular, the Commission stressed the importance of ensuring clarity, transparency and adequate scrutiny of the regulations arising from the emergency legislation enacted in the early days of the pandemic, as well as transparency in the exercise of new powers by An Garda Síochána and other agents of the State. The Commission has also communicated to Government and the Oireachtas that the lessons learned thus far during this crisis must be brought to bear on how we continue to address the pandemic, as well as on how we meet the challenges of any potential future national emergency. This is the context in which we commissioned this report from the Trinity College Dublin COVID-19 Law and Human Rights Observatory. The report provides a clear overview of the human rights and equality obligations that must inform the state’s deployment of emergency powers in response to COVID-19. It also demonstrates the crucial relevance of the Public Sector Human Rights and Equality Duty and its 1 https://www.tcd.ie/law/tricon/covidobservatory/index.php. function in informing decision-making on all aspects of law and policy. The report iv Ireland’s Emergency Powers During the Covid-19 Pandemic Ireland’s Emergency Powers During the Covid-19 Pandemic v provides an insightful account of the manner in which emergency measures and disabilities. A sudden and novel public health crisis presents an enormous regulations are being decided and introduced, including where there appear to be challenge to any State, and its services. However, as the pandemic has progressed, concerning gaps in transparency and in our systems of democratic scrutiny. there has been little evidence in the policy response that the need to balance the requirement to protect health and life, and other rights and freedoms, has While, in the main, such measures can be justified by the obligation on the State to reflected the particular rights and freedoms of people with disabilities. protect public health, the report identifies some areas of particular concern shared by the Commission. Intersecting with the experience of people with disabilities during the pandemic, is that of older people, many of whom have age-related disabilities and live in These include: congregated settings such as nursing homes where the impact of the virus has been particularly severe. Due to their particular vulnerability to the virus, and • The blurring of the boundary between legal requirements and public to public health measures such as ‘cocooning’, older people have experienced health guidance – something which is fundamentally out of step with a significant level of isolation and dislocation from their families, and prolonged the principle of the rule of law; disconnection from social supports. • The potential for emergency measures and their enforcement to A second clear divergence has been along socio-economic lines, with certain disproportionately affect certain disadvantaged and more vulnerable people, including children without access to technology or space for remote groups, including the significant effect of indirect enforcement. Of learning; people living in overcrowded accommodation, including Direct Provision particular and urgent concern is the relaxation of procedural safeguards centres, Travellers and Roma; as well as those in precarious employment, for detention on mental health grounds; and experiencing the impact of the pandemic more acutely. • The lack of human rights and equality expertise in the decision-making A third clear trend has been in the divergence of the experience of women and structures put in place to tackle the pandemic, or in the systems that men, specifically with reference to a dramatic increase in reported domestic implement and scrutinise these decisions. This also encompasses violence, and the impact of school and childcare closures on working mothers. a notable lack of consultation with groups likely to be particularly impacted. The Commission is committed to continuing its work to independently scrutinise the State’s approach to the pandemic. The Commission also welcomes the authors call for greater scrutiny and human rights proofing of regulations, including through the establishment of a Joint Many, if not most fundamental societal challenges laid bare by the pandemic Oireachtas Committee on Equality, Human Rights and Diversity – something for – systemic inequality, the strains on our social harmony, the serious gaps in which we have long advocated. The authors’ focus on the importance of adequate democratic scrutiny and accountability – will not fade away as the virus does. collection of disaggregated data – fundamental to understanding the differentiated However, our collective experience of the pandemic, our renewed appreciation of impact of the emergency measures on different groups – is also welcomed. community and solidarity, and this magnification of our most fundamental societal challenges can inform a more equal and just society for our future. We hope this report will make a contribution in identifying some of the core areas where we can enhance protections of human rights, equality and the rule of law Sinéad Gibney when adopting and implementing emergency powers, both as we continue to Chief Commissioner grapple with the current pandemic, and in potential future national emergencies. February 2021 A report such as this, however, can only begin to document the human rights and equality challenges presented by COVID-19.