The quip that “laws are like sausages, it is better not to see them being made” is attributed to Otto von Bismarck, the 19th century Prussian statesman.
As true as this may be, in a democracy, it is vital that the public has, if they so wish, the ability to understand how and why particular laws are made.
The World Health Organisation (WHO) is clear that good pandemic governance requires accountability and transparency in terms of how decisions are made.
As our recent report into public health law during the Covid-19 pandemic makes clear, the WHO’s guidance requires “that decision-makers publicly explain the basis for decisions in accessible language, while acknowledging uncertainties where they arise".
"Accountability requires both that the public know who is responsible for making decisions, and how they can challenge decisions with which they disagree,” it says.
Sadly, the line of decision-making in Ireland has not always been clear, nor has it always been clear whether the resulting decisions are merely advisory or carry legal force.
Since March 2020, there have been repeated concerns around the role of the National Public Health Emergency Team (Nphet) on Covid-19.
Nphet was set up in January 2020 and has come to play an important role in advising the Government.
However, in strict legal terms, Nphet’s role is advisory only. It is for the Government to listen to Nphet’s advice, weigh that advice with other concerns and evidence, and make a decision on the appropriate course of action.
However, at times, the Government has both been accused of “hiding behind” Nphet’s guidance and criticised for not following it.
The relationship between Nphet and the Government has not always been smooth sailing.
There have been several high-profile disagreements between them, most notably around the imposition of a “circuit-breaker” lockdown in early October which the Government refused to introduce.
Two weeks later, the Government did introduce the stricter lockdown.
A similar disagreement emerged in December and the resulting increase in cases saw the Government again criticised for not following Nphet advice.
It was clearly appropriate that a body like Nphet be created to advise the Government, during the pandemic but there are well-founded concerns around its composition.
In particular, there are concerns that Nphet is not well-placed to consider human rights and equality issues.
This could be addressed in a number of ways, either appointing individuals with such expertise to it or having additional advisory committees.
The second major concern around Nphet is how it has used the media. Nphet’s desire to communicate with the media is commendable and proper, but at times it seemed as though Nphet was trying to use the media to pressure the Government.
This may have been more of a perception on the part of the Government than a deliberate strategy by Nphet but there were times when its guidance was leaked outside of the normal reporting pathways.
Yet, on the other hand, the media has often offered the only effective channel of challenging public health guidance. For example, it was a media campaign that led to the Government amending the retail restrictions to allow for the sale of children’s shoes.
The media’s role in challenging public health guidance is, again, entirely appropriate and underscores the importance of a free media in a democracy.
However, as we note in the report, there should have been governance mechanisms put in place to ensure that the views of the public and other stakeholders were considered before key decisions were made.
That this was not in place by the time of subsequent waves of the pandemic arrived is concerning.
The lack of transparency was not limited to the relationship between Nphet and the Government.
As another chapter in the report notes, there was significant vagueness around whether and which public health measures carried criminal sanctions and which did not.
This is entirely appropriate given the seriousness of criminal liability and the desirability of ensuring voluntary compliance.
What was less appropriate was the fact that official statements about the measures diverged from the actual content of the measures.
Cocooning, for example, was advisory rather than a legal requirement. So too, the list of reasonable excuses for leaving your house or county were open-ended rather than closed.
That is, the guidance mentioned a short list of acceptable reasons, such as exercise, food shopping, medical care, but there were potentially other acceptable reasons beyond these.
Beyond these concerns around transparency, the report makes 16 recommendations ranging from accountability in Government decision-making, to the need for a statutory sick-pay regime, to the abolition of direct provision, to the need for better childcare supports, to changes in deaths registration.
However, we should also be careful that some emergency measures do not become permanent.
Given the speed at which Covid-19 swept the world, governments have had to respond quickly.
In Ireland, as in other countries, this has sometimes led to the appearance that governments are being overly deferential to unelected advisory bodies.
While there is a need for governments to respond quickly, it is also vital that they are held accountable for the decisions they make.
After a year and a half of the Covid-19 pandemic, it is vital that the Government addresses the concerns around accountability and transparency raised in our report.