1st Floor 34 Usher’s Quay 8 T: +353 1 912 1640 E: [email protected] w: www.iccl.ie

Micheál Martin TD Department of the Taoiseach Merrion St Upper Dublin 2

Stephen Donnelly TD Minister for Health Department of Health 50 – 58 Lower Baggot Street Dublin 2

By email 30 November 2020

Dear Taoiseach, Minister Donnelly,

As we enter month nine of the pandemic response and another phase of restrictions to be underpinned by regulations made under the Health (Preservation and Protection and Other Emergency Measures) Act 2020, we write to urge you to change your approach to the making of such regulations in order to improve compliance with human rights and general rule of law principles.

We write this letter as a follow up to our previous letters of 24 March 2020 to then Minister for Health Simon Harris; 17 April 2020 to then Taoiseach ; 20 May 2020 to then Minister for Health Simon Harris; 24 June 2020 to then Minister for Health Simon Harris; 31 July 2020 to Minister for Health Stephen Donnelly; as well as our submission to all members of the on 18 March 20201 and our submission to the Covid-19 Special Committee in September 2020.2

Since March we have seen regulations made to combat the spread of Covid-19 that significantly restrict our human rights and civil liberties. The level of interference with our rights has been extreme. We appreciate that the motivation for these restrictions has been to protect the right to life and public health. Human rights law allows for restrictions on rights in times of emergency but, (absent derogation), such restrictions must be provided for by law, demonstrably necessary, and as minimal as possible to protect a legitimate aim, in this case to protect public health. This is required by the Irish Constitution, the European Convention on Human Rights and Ireland’s international treaty obligations. S.42 of the Irish Human Rights and Equality Commission Act 2014 places a statutory duty on all public bodies to comply with human rights standards.

We are concerned that the manner in which these regulations have been made and are continuing to be made may not meet human rights requirements and may undermine fundamental rule of law principles.

We have not seen a clear demonstration by the government that as each set of regulations are made that the necessity and proportionality of the interference with our rights has been considered.

1 https://www.iccl.ie/wp-content/uploads/2020/03/ICCL-analysis-emergency-COVID19-legislation.pdf 2 https://www.iccl.ie/wp-content/uploads/2020/09/ICCL-Submission-to-Covid-Committee-7-Sept-2020-.pdf 1st Floor 34 Usher’s Quay Dublin 8 T: +353 1 912 1640 E: [email protected] w: www.iccl.ie

We consider that criminal sanctions including the recent regulations, SI 536/2020, providing for on the spot fines are an unnecessary and potentially disproportionate response to public health compliance concerns.

We echo the public letter to on Saturday 21 November signed by 14 Senior Counsel and 21 other legal experts, calling on you to improve the process of making and publishing these regulations.3

Demonstrating that human rights and fundamental rule of law principles are being taken into account will, we believe, ensure greater clarity, better public support and higher compliance with public health guidelines.

Below, we outline specific recommendations in the areas of human rights, democratic process, transparency of decision-making, criminal sanctions and renewal of emergency legislation.

1. Human Rights

In order to meet the proportionality requirements of human rights law, the Government must demonstrate that measures interfering with rights are justified including with reference to their negative impact on mental health, social and economic life and adverse consequences such as a rise in domestic violence.

We recommend:

• Government to certify each set of regulations as compliant with the state’s human rights obligations and to ensure and demonstrate ongoing monitoring of the human rights impact of such regulations.

2. Democratic Process

Ordinary safeguards that ensure democratic principles are at the heart of the legislative process include pre-legislative scrutiny by the Oireachtas, adequate time for debate and targeted consultation with key stakeholders.

As a case in point, the current regulations restricting movement and events are due to expire tomorrow 1 December 2020. As of today, 30 November 2020, while there has been public communication about new restrictions, the regulations underpinning those restrictions have not been officially published or disseminated. This follows the pattern adopted by government since March, criticised by academics4, lawyers5 and human rights advocates6.

We recommend that:

• All proposed regulations made under Health Acts should be subject to pre- legislative scrutiny by the Oireachtas.

3 https://www.irishtimes.com/opinion/letters/emergency-measures-and-civil-liberties-1.4414992 4 https://www.tcd.ie/law/2020.21/Observatory%20submission%20to%20Oireachtas%20COVID- 19%20Response%20Committee.pdf 5 https://www.irishtimes.com/opinion/letters/emergency-measures-and-civil-liberties-1.4414992 6 https://www.iccl.ie/wp-content/uploads/2020/09/ICCL-Submission-to-Covid-Committee-7-Sept-2020-.pdf 1st Floor 34 Usher’s Quay Dublin 8 T: +353 1 912 1640 E: [email protected] w: www.iccl.ie

• Where the regulations contain a significant interference with rights, the Irish Human Rights and Equality Commission should be consulted. • Key stakeholders such as vulnerable individuals and communities or education and business institutions who will be affected by the regulations should be consulted for their views well in advance of regulations coming into force. • Regulations should be published when made, and ordinarily at least 48 hours before coming into force. There must be effective public messaging to ensure the public understands each set of new regulations. • Regulations should lapse if not positively affirmed by each House of the Oireachtas within 10 sitting days of being made.

3. Transparency of decision making

Of fundamental importance to a democracy is transparency of decision making by government. In the context of significant restrictions on rights laid down in law, we need to know why these restrictions are seen as necessary and proportionate. Since the beginning of the government’s response to the pandemic we have seen confusion and opaqueness regarding the advice being given to government from NPHET, the process of taking responsibility for transforming that advice into policy in terms of public health guidelines, and the process of transforming certain elements of the public health guidance into legal requirements that are often underpinned by criminal sanctions. In an open democracy where constitutional rights and freedoms play a fundamental role in how we govern and how we are governed this state of play is unacceptable.

We call on you in your respective capacities of Taoiseach and Minister for Health to bring much greater transparency to these processes. We need to know precisely how these decisions are being made, by whom they are being made and based on what evidence. Discussions by government actors around NPHET advice, the factors being taken into account in decision-making, as well as consultations with other stakeholders, should be communicated, within reason, to the public.

Government has a particular duty to make clear the distinction between public health advice and guidance on one hand, and regulations and legal obligations on the other. Decisions by government should be published and clearly explained as soon as they are finalised. Increasing public understanding of the decision-making process would, in our view, increase public trust, confidence and compliance.

We recommend that:

• The agendas and minutes of NPHET meetings should be published promptly. • Government decisions must be communicated as soon as they are finalised. • Government’s decision-making processes around the introduction of public health advice and guidance should be explained to the public, including a requirement on Government to show how it has weighed up considerations of human rights in agreeing such advice or guidance. • Where advice and guidance is enshrined in legally binding regulations, the Government should clearly state this distinction and all the steps identified above in section 2 should be followed.

4. Criminal Sanctions 1st Floor 34 Usher’s Quay Dublin 8 T: +353 1 912 1640 E: [email protected] w: www.iccl.ie

ICCL considers that compliance with public health guidance must first and foremost be encouraged through education, communication and outreach. Criminal sanctions for failing to comply with guidance must be used, if at all, as a last resort and in a proportionate manner where behaviour is clearly identifiable as criminal. Where criminal sanctions are envisioned in regulations through the classification of restrictions as ‘penal provisions’ the Minister for Justice must be consulted in advance. Crucially, what regulations are classified as penal must be clearly communicated to the public well in advance of the law coming into force. The criminal justice system is designed to address criminality in our society, not dissent or a lack of awareness. The role of An Garda Síochána in this public health effort must be supportive and not coercive.

We recommend that:

• Criminal sanctions should be removed from regulations restricting movement. • Provision for criminal sanctions for failure to comply with public health advice must be demonstrably necessary and proportionate. • All Government communications should distinguish clearly between legal requirements and public health advice.

5. Renewal of the Emergency Health Acts

ICCL consider that the extension of the sunset clause in the Emergency Health Acts and the Garda Enforcement Act without proper debate or longer legislative scrutiny in October was highly problematic. Legislation that so significantly interferes with our rights must be subject to a higher level of scrutiny than normal legislation. We call on government to ensure that if these Acts need to be extended again beyond June 2021 that adequate time for Oireachtas debate and scrutiny will be allocated. Providing adequate time for parliamentary debate is crucial to ensure proper democratic oversight.

We recommend that:

• The Health (Preservation and Protection and Other Emergency Measures) Act 2020 and the other Emergency Acts should be amended so that extensions are (a) by positive resolution of both Houses of the Oireachtas following adequate time for debate and (b) for limited periods specified in the Acts themselves.

We appreciate the difficulties inherent in responding to a global pandemic and we are in no way questioning the fact that the motivation behind these restrictions is to protect public health. We consider that demonstrated adherence to democratic principles, human rights and the rule of law must be paramount in the government’s response. To fail to do so may jeopardise public trust and confidence in this crucial public health effort, and risks weakening fundamental human rights and constitutional protections which take on an even greater importance at this moment of national emergency.

Yours sincerely,

Liam Herrick Executive Director Irish Council for Civil Liberties