Paul Hosford: Gathering evidence that confusion around Covid restrictions reigns

Throughout the pandemic, the Government has been less than clear about what is 'advice' and what is 'law', leaving the public confused and fed-up
Paul Hosford: Gathering evidence that confusion around Covid restrictions reigns

If people are within their rights to do something, the State should make it clear the advice is just that and explain clearly what the law actually is. File picture

"First of all, you can forget about takeaway pints."

Speaking on January 6, the Taoiseach made that emphatic statement. The Government was announcing new lockdown measures, schools were closed and new restrictions on travel were announced.

The line itself became headline fodder and a meme. If you only saw the clipped version, you could at the time be forgiven for thinking that alcoholic drinks being sold by pubs in plastic cups had been outlawed.

But in the full video of that briefing, there is a follow-up question wherein Micheál Martin is asked if the practice of selling the drinks was actually being banned or advised against. In response, the Taoiseach makes it clear that "forget about" was advice as no law was being prepared.

'First of all, you can forget about takeaway pints,' announced Taoiseach Micheál Martin in January. File picture
'First of all, you can forget about takeaway pints,' announced Taoiseach Micheál Martin in January. File picture

In the end, the advice largely worked, because many premises stopped selling drinks to people on the street, though this may have more to do with it being the first fortnight of January than anything else.

But what was seen as that time was a brief showing of the balance the Government has tried to find for the last 18 months – between what was not allowed legally and what was merely advised against.

Friction between mere advice and legal right

We have seen this at different stages throughout the pandemic, but the friction between mere advice and legal right came into full show this week after it emerged Katherine Zappone, who was then in the running for the role of special envoy to the UN on Freedom of Expression, had held an event in the Merrion Hotel in Dublin for about 50 people.

It emerged this week that Katherine Zappone, who was then in the running for the role of special envoy to the UN on Freedom of Expression, had held an event in the Merrion Hotel in Dublin for about 50 people. File picture: Gareth Chaney/Collins
It emerged this week that Katherine Zappone, who was then in the running for the role of special envoy to the UN on Freedom of Expression, had held an event in the Merrion Hotel in Dublin for about 50 people. File picture: Gareth Chaney/Collins

The hotel and Ms Zappone quickly said they were within the regulations, something which is indisputable. The law, as signed by the Health Minister, allows for events of up to 200 people in a "relevant geographical area". 

This was confirmed to the Government by the Attorney General and press release from the Government press office on Wednesday. The same explanation was used to justify Dublin City councillor Claire Byrne's event to thank volunteers on her recent by-election campaign – it was all covered by the legislation.

Which means that there's no issue, right? As with everything in this pandemic, it's a little more complicated than that and may come down to your own perspective.

While there is no question the events were legal, they certainly were not the Government's own stated policy or the public health advice. Time and again over recent weeks, medics have asked people not to gather, even outdoors. 

As recently as July 16, Niamh O’Beirne, the HSE’s national lead for test and tracing, warned a large proportion of cases were coming from outdoor social gatherings.
As recently as July 16, Niamh O’Beirne, the HSE’s national lead for test and tracing, warned a large proportion of cases were coming from outdoor social gatherings.

As recently as July 16, just days before the Zappone event, Niamh O’Beirne, the HSE’s national lead for test and tracing, warned a large proportion of cases were coming from outdoor social gatherings.

“We are seeing more from an outdoor setting. It is groups outdoors. I'm hearing from the tracers things like barbecues, outdoor group dining, outdoor large gatherings of large groups, house parties,” she said.

"And then things we saw previously which were funerals, weddings, family gatherings and after sports training events."

Public health advice

So, while the public health advice was clearly urging people to do one thing, the law was actually allowing the complete opposite. This has not been uncommon in the last 18 months and this has been somewhat unavoidable in some cases as the process of drafting and passing legislation takes a lot longer than to ask people to be careful.

However, the job of a Government is governance and if, for example, it wants to ban the sale of a product, it can do that through legislation and not through a line at a press conference. 

Furthermore, if people are within their rights to do something, the State should make it clear the advice is just that and explain clearly what the law actually is.

In this case, the events were perfectly legal under the statutory instruments signed by the relevant minister, but Fáilte Ireland guidelines in place at the time suggested organised events, whether indoor or outdoor, were not permitted unless they were weddings or “non-social meetings, training and educational programmes considered essential to the operation of a business".

The confirmation that groups of 200 could convene for "social, recreational, exercise, cultural, entertainment or community reasons" was also news to the hospitality industry.

The confirmation that groups of 200 could convene for 'social, recreational, exercise, cultural, entertainment or community reasons' was also news to the hospitality industry. File picture: Damian Coleman
The confirmation that groups of 200 could convene for 'social, recreational, exercise, cultural, entertainment or community reasons' was also news to the hospitality industry. File picture: Damian Coleman

Chief executive of the Restaurants Association of Ireland Adrian Cummins said on Thursday that the hospitality sector did not know until the Attorney General's advice was announced on Wednesday.“It was news to our industry that we're now allowed up to 200 people for outdoor gatherings within social settings,” he told Newstalk Breakfast.

“We didn't know that until yesterday until the Attorney-General made the announcement. We welcome the announcement because it gives us extra capacity and extra revenue opportunity.”

Mr Cummins added he was glad the guidelines had been updated, but that in the meantime the sector had lost a lot of business. “We've missed a huge amount of revenue within hospitality.

“We are disappointed it took an event for 50 people to bring this announcement around and delivered to the industry.”

It was here the Government fell into a trap of its own making. Throughout the pandemic, sector-specific advice and public health guidance has been either accidentally or intentionally presented as legally binding. 

But Fáilte Ireland or the Health and Safety Authority or Sport Ireland or any other State or semi-State body does not possess the power to enact legislation. That is a function of the Oireachtas and one which nearly all members of the two houses take seriously.

The problem throughout the pandemic has been that often the guidance was not put on a legal footing and very rarely were these divergences made clear. 

Indeed in September, the Oireachtas Special Committee on Covid-19 Response was told by legal experts they believed the confusion was used to ensure compliance with public health measures.

Confusion among the public

Dr David Kenny of Trinity's Covid-19 Law and Human Rights Observatory told the committee there was confusion among the public between what were Covid guidelines and what were legal requirements, saying many "cocooners" were under the impression that it was illegal for them to leave their house during some parts of the lockdown.

He said: "It might be thought in some quarters that this is a useful strategy for ensuring compliance with public health advice, as people will be more likely to comply if they think they are legally obliged to do so.

But such a strategy raises serious rule of law concerns, and has real costs. It confuses members of the public, erodes public trust in communication about the law, and is an abuse of State power, implying a legal threat that does not exist."

In this case, the implication of a legal threat for hosting an outdoor event was never explicitly stated, but the majority of people understood the Government rules on the allowance of organised outdoor gatherings to refer to sporting events or trial concerts. 

Indeed, many have said since that had they known the law was not the guidance, they might have pressed ahead with celebrations outdoors that they have instead deferred.

That this competition between guidance and advice exists is sometimes unavoidable but often down to carelessness, but the net result here will be same – a mortal wound to the continued public buy-in to restrictions.

The fact is, had the Taoiseach been asked on Tuesday if you can have 200 people at your child's outdoor birthday party this weekend, he would likely have said no. If you asked today, he would likely say that it is allowed but not advised. This is despite nothing – the regulations, the legislation or the public health advice – changing until after the Attorney General's intervention.

All of that meant that there continues to be confusion about how and why certain things are allowed while others remain restricted. But after 18 months, a public burnt out by the toughest of years does not hear nuance and public health experts will now be praying it is the advice that people listen to when planning outdoor gatherings and not the letter of the law.

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