Do sweeping new powers in Covid-19 Bill go too far?

Security Correspondent Cormac O'Keeffe looks at the unprecedented and sweeping powers in the emergency Covid-19 bill

A woman wearing a mask to protect against Coronavirus on Patrick Street, Cork. Picture Dan Linehan
A woman wearing a mask to protect against Coronavirus on Patrick Street, Cork. Picture Dan Linehan

On the face of it, the emergency measures under the Government’s Covid-19 bill are sweeping and unprecedented.

And the powers given to health officers— and, to assist them, to gardaí — appear draconian.

But these are not ordinary times and as the Taoiseach Leo Varadkar warned there is a public health “storm” coming.

The powers include orders requiring people to stay inside their homes. Where they refuse, and they are a “potential” source of infection, they can be detained and removed to a location.

If they breach these orders they are committing a criminal offence and are liable to prosecution and could face up to three months in prison and/or a fine.

Anyone who organises an event — almost any gathering in a premises — could also be prosecuted and fined.

The same applies to people who continue to open a premises after a temporary closure order has been issued.

The Government will also be able to restrict movement and declare “affected areas”, or exclusion zones.

The measures are contained in the Government’s Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020, due to be debated and voted on in the Dáil.

It amends a number of parent laws, including the Health Act 1947.

The bill will last until May 9, which some see as a short-time period, but the powers can be extended — and any extension will be by order of the Government and not requiring Dáil approval (but the Dáil can seek to annul an extension)

The Irish Council for Civil Liberties wants a “sunset clause” on the emergency measures and that any decision to extend them to be vested in the Oireachtas and any extension time bound.

The ICCL also has concerns regarding criminal sanctions applying to breaches.

The bill will amend the 1947 Act to allow the Minister of health to issue regulations:

  • Prohibiting or restricting the holding of certain events, access to certain premises and enforcement measures
  • Powers for certain medical officers to order the detention of persons who are suspected to be possible sources of infection of Covid-19 and to provide for enforcement measures
  • Confer on the Minister for health the power to designate regions as areas of infection of Covid-19

The bill allows for restrictions on people and groups living in, working in or visiting locations.

Moreover, the regulations may require people to “remain in their homes”.

The Minister can prohibit events that “could reasonably” be considered to pose a risk of infection.

An event refers to “a gathering of persons, whether the gathering is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, [religious] or other reasons”.

The health Minister can also order the temporary closure of a premises, defined as “a building or any part of a building, any outdoor space surrounding or adjacent to the premises, whether or not used in conjunction with the premises, any land, premises, tent, caravan, or other temporary or moveable structure, ship or other vessel, aircraft, railway carriage or other vehicle”.

The bill gives examples as schools, including language schools, creches or other childcare facilities, universities or other educational facilities.

It says that anyone who contravenes a regulation made under this section or who willfuly obstructs its implementation or gives false or misleading evidence in purported compliance with this regulation “shall be guilty of a Class C offence”.

This is thought to refer to a Class C fine for a summary offence in the district court— a maximum of €2,500.

Explaining the requirement for these measures, the bill refers to a “national emergency” that is of such character that there is “an immediate and manifest risk to human life and public health”.

As a consequence, “it is expedient in the public interest that extraordinary measures should be taken to safeguard human life and public health”.

It cites the Public Health Emergency of International Concern made by the World Health Organisation in respect of Covid-19 and that Covid-19 was duly declared by the WHO to be a pandemic.

The Health Minister can also issue “affected areas” orders, declaring that an area or region is hit by “sustained human transmission” of Covid-19 and from which there is a high risk of importation of infection.

The Minister can restrict travel to and from that region.

In relation to detention and isolation of people, the bill will confer powers on a medical officer who believes that a person is “a potential source of infection” and a risk to public health and that his or her detention is appropriate to prevent the spread of Covid-19.

A person is a “potential source of infection” if they have been in recent contact with a person who is a probable source of infection or is suffering from Covid-19 or if they have attended an event that was attended by people who are a probable source of infection.

Where such a person can’t be effectively isolated or “refuses to remain or appears unlikely to remain in his or her home” or other accommodation arranged by the HSE, the medical officer may “order the detention and isolation” of the person in a specified hospital or other place.

Though the bill doesn’t refer to it, the parent 1947 Health Act contains provisions where medical officers need the assistance of gardaí, including in enforcement.

Section 95 of the 1947 Act says assistance includes the detention of a person, the “bringing of any person to any place, the breaking open of any premises or any other action in which the use of force may be necessary and is lawful”.

It further says that a garda “shall” comply with the requirement ordered.

 The 1947 Health Act states that Gardaí may be called upon to detain people who pose a risk
The 1947 Health Act states that Gardaí may be called upon to detain people who pose a risk

Section 96 states: “The Minister may, with the consent of the Minister for Justice, by order provide for the enforcement by the Garda Síochána of any specified provision of this Act or the regulations or orders made thereunder in the whole or a specified part of the State and either generally or in so far as such provision relates to a specified matter.”

The 2020 bill says that a medical officer ordering the detention of a person must ensure that a medical examination of the person is carried out as soon as possible and “no later than 14 days”.

A person detained may request that his or her detention be reviewed by a medical officer, other than the officer who make the order.

The bill says a person who is guilty of an offence under this section shall be liable upon summary conviction to penalties specified in subsection 6 of section 38 of the 1947 Act.

This includes a fine and possible imprisonment of up to three months.

Garda sources have said that they can’t see the detention provisions being used much, but that it was important that clear legislation was in place specifying the powers available.

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