Doireann Ansbro: We need a model of policing by consent

Emergency legislation must be temporary, it should not be renewed without rigorous debate and scrutiny to ensure our rights are respected and the most basic tenets of our democracy are protected, writes Doireann Ansbro

The Government intends to seek an extension of legislation giving gardaí additional powers of inspection and enforcement, and allowing for mandatory hotel quarantine. Photo: Dan Linehan

On Tuesday evening, the Cabinet announced its decision to seek an extension of the emergency Covid powers to at least November 9. 

This is the bedrock legislation which has allowed Government to introduce laws requiring, under criminal sanction, that people stay at home except for essential purposes, and to effectively ban all gatherings and events, including protests and religious services. The Government also intends to seek an extension of legislation giving gardaí additional powers of inspection and enforcement, and allowing for mandatory hotel quarantine.

However, the extension of emergency legislation is not a decision Cabinet should make alone. These laws allow incredibly wide-ranging restrictions on our rights and freedoms.

While some restrictions may still be necessary over the coming months to protect people from Covid-19, it’s crucial that the people have a say via our elected representatives in the Oireachtas.

When these powers were introduced in March 2020, a rushed debate in the Dáil was necessary. The Government needed to act urgently to save lives. Thanks, in part, to ICCL advocacy, a sunset clause tied to a review on November 9 was added. 

But in late October 2020, the legislation was again steamrolled through the Oireachtas, with only a nod to meaningful debate. And there was no review. Now it looks as though Government intends to do the same, and still with no proper review of the exercise of these emergency powers.

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From the very outset, ICCL has warned against the danger that temporary powers might become more long-term. The proposed extension of five months is too long, given the improving public health situation. 

The Government is saying on the one hand that 80% of the population will be vaccinated by June and that international travel may resume in August. Yet on the other hand it intends to retain these extensive powers until November. 

Human rights law requires emergency law to expire as soon as an emergency period is over. We think any extension from now on should be as short as possible and should be reviewed in light of the public health situation on a monthly basis.

There is no reason the legislation can’t be modified at this stage to better protect our rights.

In a number of submissions to the Government over the past year, ICCL and others have called for better consultation, better scrutiny and a clearer human rights test when the Minister decides to restrict our rights. The Irish Human Rights and Equality Commission (IHREC) should be consulted. 

The Oireachtas should have oversight. The Government should demonstrate that interferences with rights are as minimal as possible to protect public health; and this should be regularly reviewed in light of the changing situation.

Police interference in ordinary life must end. Emergency legislation allowing gardaí to inspect restaurants for compliance with the ‘pub grub’ regulations, or to stand outside your home to tell you to end your social gathering, or impose heavy fines for crossing a county boundary should not be extended. 

We need to return to a model of policing by consent and not coercion.

ICCL has consistently campaigned for clear protections for fundamental rights such as protest and worship during the pandemic. Both of these rights can be exercised in a pandemic-safe manner, but Government never clarified that for people. Now is the perfect opportunity to do so.

Legislation on mandatory hotel quarantine is also due to be renewed in June. This system should not be renewed without a human rights assessment as to its necessity and proportionality relative to alternative options such as widespread testing and home quarantine with proper oversight. If it is retained, the highest standards of care and key safeguards must be in place.

Doireann Ansbro: "From the very outset, ICCL has warned against the danger that temporary powers might become more long-term."

While we have welcomed changes that allow additional exemptions on humanitarian grounds, we remain deeply concerned that the review and appeals process is flawed. People must have the opportunity to challenge their detention and they must be supported with access to legal representation. 

Additionally, there appears to be no independent inspection mechanism, which is a key safeguard for systems of detention. We call for the system to be overhauled in order to make it rights-compliant, or else for it to be abolished as soon as possible.

Emergency legislation must be temporary. As time goes on, it should not be renewed without rigorous debate and scrutiny to ensure our rights are respected and the most basic tenets of our democracy are protected.

• Doireann Ansbro is Head of Legal and Policy at the Irish Council for Civil Liberties. ICCL in conjunction with the Community Foundation Ireland will soon publish a wide-ranging report on human rights during Covid. We have sent the section on the emergency powers to all TDs and Senators to equip them for the forthcoming debate on the powers.