A new law giving the Government sweeping powers to tackle the spread of Covid-19 has been approved by the Dáil, sitting with just 30% of our TDs.
These powers, if invoked, will significantly restrict our rights to liberty, free movement and assembly. They allow for the detention of those who refuse to self-isolate.
They allow the Government to ban events, restrict travel and require people to stay in their homes.
These are truly extraordinary measures that the government believes are necessary to protect our health and our right to life during this public health emergency.
At the Irish Council for Civil Liberties, we agree that these extraordinary times call for extraordinary measures.
Human rights law, however, still applies during times of emergency. This means our rights can’t be suspended.
They can be limited to protect health and life but any limits must be demonstrably necessary and they must be as minimal as possible.
At ICCL, we analysed the draft bill and made a number of recommendations to bring it in line with human rights law and standards.
Our chief concern was that in its initial form the bill allowed for indefinite extensions of its duration without prior approval by the Oireachtas.
In practice, this would have meant that the extraordinary powers that the law provides could have lasted long into the future without proper parliamentary scrutiny.
Emergency powers can become normalised and our rights whittled away. We’ve seen that before in Ireland with the Offences against the State Act and the Special Criminal Court.
They were introduced during the period of an emergency but continue to curb fair trial rights in some cases to this day.
We’ve seen it in other countries too where emergency powers brought in to deal with counter-terrorism, for example, have crept into normal law or have been misused to curb the work of civil society and journalists.
This is why we were glad to see the introduction of a proper sunset clause following the Dáil debate last Thursday.
The law now specifies that the powers to restrict events, movement and liberty will last only until November 9. Any extension beyond that period must be approved by the Dáil.
This would have included homeless people, the Traveller community and people living in shared living spaces such as prisons and Direct Provision Centres.
The potentially devastating consequences for those without homes or sanitary facilities are painting the socio-economic inequalities in Ireland in a rare, stark and disturbing light.
The Minister for Health made a clear statement in the Dáil on Thursday that the Government will assist people to self-isolate and people must be treated equally in this regard.
But this commitment isn’t reflected explicitly in the law.
The new powers to ban events, restrict travel, and restrict movement in places designated as 'affected areas' are extensive.
Anyone contravening such an order will be charged with a criminal offence.
The need to prevent the spread of Covid-19 to save lives and the possibility that some people won’t follow the clear medical advice regarding social distancing and self-isolation is what makes these powers necessary.
However, they must be used sparingly and only where clearly required in order to prevent their misuse.
ICCL recommended introducing additional safeguards to mitigate against this.
For example, we suggested that the Minister shouldn’t have the power to make orders to clamp down on events and gatherings when it is 'necessary or expedient' but only when it is necessary.
Unfortunately, this wasn’t taken on board.
The law also significantly expands existing detention powers for those with ‘infectious diseases’.
In the Public Health Act of 1947, a chief medical officer can order the detention of someone who is a ‘probable’ source of infection and can’t be effectively isolated in their home.
The new law allows ‘medical officers of health’ to detain individuals who they believe in ‘good faith’ to be a ‘potential source of infection’.
This is clearly a much broader power than the 1947 Statute and it’s a criminal offence not to comply with an order for detention.
Given that the right to liberty is one of our most fundamental rights, ICCL recommended adding significant extra safeguards to this power.
We suggested requiring a reasonable belief (meaning most reasonable people would believe the same) before an order for detention could be made.
This is the standard required of Gardaí when they want to arrest someone.
We recommended that detention or isolation should be considered necessary and not just ‘appropriate’, as the law currently provides.
We also wanted to see a stronger review and appeals process.
Currently, a person can request a review of their detention by one other medical officer.
We expressed concern that people who may not have full capacity should have the right to an advocate to protect their rights if detained.
These recommendations were not added to the law despite being suggested by a number of TDs and Senators during the debates in the Oireachtas last week.
The Minister could still add such safeguards to specific regulations and we urge him to do so.
This means that the power to restrict events and free movement and the power to detain can only be used when strictly necessary and in a proportionate manner — or as little as possible to protect public health.
We at ICCL will be monitoring their use and campaigning for an end to the powers when the emergency is over.
The Dáil debate on Thursday and the Seanad debate on Friday showed a commitment to civil liberties across a broad political spectrum.
Minister Harris concluded the Dáil debate by saying “these are powers we don’t ever wish to use”.
We support the Government’s efforts to ensure their response to this crisis is prescribed by law and we wholeheartedly commend and thank all of those in the medical profession who are making trojan efforts to keep us safe.
These are extraordinary measures for extraordinary times and a human rights approach to their implementation will protect each one of us now and well into the future.
- Doireann Ansbro, is a senior research and policy officer with the Irish Council for Civil Liberties