Creating an Enforceable Right to Disconnect in Ireland

Mark Bell, Trinity College Dublin

Alan Eustace, Trinity College Dublin

Marta Lasek-Markey, Trinity College Dublin

Thomas Pahlen, Trinity College Dublin

 

 

The pandemic provoked a sudden increase in the proportion of people working remotely. While the vaccination programme is creating conditions that should permit a gradual return to workplaces, it seems likely that remote working will remain a prominent feature of the post-pandemic labour market. While remote working offers flexibility in respect of where and when work is performed, it poses challenges for work-life balance. In particular, there is a risk that remote working gives rise to an organisational culture of constant availability. If work can be performed anywhere, and at any time, then workers may find themselves ‘always on’, with damaging consequences for physical and psychosocial well-being. In response, there are growing calls across Europe for the creation of a legally-enforceable ‘right to disconnect’. These are supported by a new public policy report published by the Covid-19 Law and Human Rights Observatory, which recommends that Ireland adopt legislation creating a right to disconnect. 

 

The report explains that there are already enforceable rights to rest found in the Organisation of Working Time Act 1997. Recently, this has been complemented by a Statutory Code of Practice on the Right to Disconnect. This is not legally-binding, but it can be taken into account when the 1997 Act or any other relevant legislation is applied. The government has already committed itself to introducing legislation to provide a right to request remote working and, due to the EU Work-Life Balance Directive, it will have to create a right to request flexible working arrangements for parents and carers by August 2022. It seems, however, that the right to disconnect will not be included in such legislation and it will remain dependent upon the non-binding Code of Practice.  

 

The report examines the situation in EU Law, followed by discussion of the position in France and Germany. At EU level, in 2020, the European Social Partners adopted a Framework Agreement on Digitalisation. One of the four themes in this Agreement is ‘modalities of connecting and disconnecting’. This includes a commitment for the social partners in all EU Member States to engage in collective bargaining in order to clarify the ‘legitimate expectations’ of workers when using digital work devices. In January 2021, the European Parliament went a step further, calling for legislation on the right to disconnect. Its resolution included a draft Directive fleshing out what is entailed by such a right. This included an obligation on Member States to take measures such as: ensuring practical arrangements for switching off digital tools; creating systems for measuring accurately working time; providing health and safety assessments related to remote working, including psychosocial risk assessments; and establishing criteria for derogations and any related compensation for work outside normal working hours. 

 

As described in the report, the European Parliament’s initiative builds on the experience of other Member States that have already introduced legal measures on the right to disconnect. France was the first European jurisdiction to enact a statutory right to disconnect. Its experience demonstrates that practical implementation of this right demands the active involvement of employers and trade unions. In contrast, Germany has not yet adopted such legislation. Nevertheless, as in Ireland, there is an active debate on the rights already flowing from the law on working time and certain businesses have already taken initiatives designed to facilitate disconnection by workers. 

 

The report identifies those measures that should be addressed in any future legislation on the right to disconnect in Ireland. Legislation needs to clarify the distinction between ‘working time’ and rest periods; during the latter, the worker should not be expected to be normally available to the employer, albeit that there may be circumstances where flexibility is required. This non-availability is key; rest periods must be protected from the risk or expectation of being contacted for work purposes, whether or not work is actually performed. However, account needs to be taken of the realities of the business – including any business conducted across time zones, and flexible working arrangements. For such laws to function in practice, it is necessary that they are implemented by employers with the participation of trade unions or other workers’ representatives. To be effective in practice, all workers should be included and this should encompass ‘non-standard’ forms of employment, such as those in the ‘gig-economy’. Finally, it is important that the law provides for adequate remedies if it is breached and effective enforcement mechanisms.

 

Mark Bell is Regius Professor of Laws and Head of School at the School of Law, Trinity College Dublin. He has published widely on Anti-Discrimination Law and Employment Law, particularly in relation to EU law.

 

Alan Eustace is a Scholar of Trinity and a PhD candidate in the School of Law. The subject of his thesis is The Worker and the Constitution: A Theory of Constitutional Labour Law, and his research is funded by the Irish Research Council.

 

Marta Lasek-Markey is a PhD candidate in the School of Law. The subject of her thesis is Posted Workers and Precariousness in Practice, and her research is funded by the Irish Research Council.

 

Thomas Pahlen is a PhD candidate in the School of Law. His research examines the horizontal effect of the EU Charter of Fundamental Rights in employment law.

 

Suggested citation: Mark Bell, Alan Eustace, Marta Lasek-Markey and Thomas Pahlen, 'Creating an Enforceable Right to Disconnect in Ireland' COVID-19 Law and Human Rights Observatory Blog (1 June 2021) https://tcdlaw.blogspot.com/2021/05/creating-enforceable-right-to.html

 

Shareholder Meetings in Virtual Formats: From Crisis Response to Covid-19 to Permanent Feature of the Corporate Landscape

 

Philip Gavin, Trinity College Dublin

 

Introduction

The movement towards a digitalised world has significantly impacted virtually every facet of modern life. It is indeed unsurprising, that the agenda of corporate governance reform has also, in recent years, grappled with the movement towards digitalisation.  It is equally a trite point, that digitalisation efforts have been significantly hastened by the outbreak of the Covid-19 pandemic. One area where this digitalisation appears to have had a lasting legislative impact is the ability of companies to hold virtual shareholder meetings. The digitalisation of shareholder meetings became necessary during the pandemic and were permitted through temporary amendments enacted in August 2020. However, while the permitting of virtual shareholder meetings was initially conceived as an interim response to Covid-19, Minister Robert Troy recently announced the intention of the Government to draft a framework for permitting virtual meetings on a permanent basis through amendments of the Companies Act 2014. The objective of this post is to identify which aspects of the interim framework are likely to remain on a permanent basis and which will be terminated upon the conclusion of the temporary measures responding to Covid-19. 

 

Pre-Pandemic Status Quo

At the outset of Covid-19, the use of technological communication for shareholder meetings received only limited statutory recognition. A company holding a meeting outside of the state is under a duty, under s 176 (3), to provide technological means of participation to participants wishing to engage without leaving the State. Likewise, where a company holds the meeting over multiple venues then the company, under s 176 (4), is to use technology which provides members the opportunity to participate. In either instance, there is still an in-person meeting and physical venue and the aim of the technological access is simply to facilitate distanced engagement with that otherwise physical meeting. Therefore, the statute does not explicitly anticipate a scenario where the meeting is to occur in a wholly virtual setting, something which became an understandable necessity during Covid-19. These provisions are also of limited assistance because they apply to particular scenarios – meetings abroad or in multiple venues – rather than a singular domestic meeting. While there does appear to be a budding intention to digitalise corporate engagement in the Companies Act 2014, there are clearly shortcomings when faced with the challenges of the pandemic and lockdown.

 

Interim Measures During Covid-19

In response to the outbreak of Covid-19, several temporary amendments to the Companies Act 2014 were introduced in August 2020 through the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 (hereafter the 2020 Act). The amendments made by the 2020 Act all sought to address particular concerns raised by the Covid-19 pandemic, either focusing on the impact Covid-19 as a shock to the economy or the particular concerns of Covid-19 as a virus and the need to facilitate corporate activity despite social distancing. Rather obviously, it is the second of these categories which is of relevance for the digitalisation of general meetings of shareholders. The 2020 Act goes beyond the Companies Act 2014 in facilitating virtual meetings in that it does not require a physical venue to anchor and legitimise the shareholder meeting. The 2020 Act instead states that ‘[a] company need not hold a general meeting at a physical venue but may conduct the meeting wholly or partly by the use of electronic communications technology as long as all attendees have a reasonable opportunity to participate.’ This reasonable opportunity of participation requires the technology to effectively facilitate engagement, ensure secure voting and ensure the identification of participants where necessary. The notice of the meeting must also note the platform being used and explain the means of accessing the virtual meeting and any procedures in place during said meeting. Furthermore, the Act states that temporary disruption will not invalidate the meeting and the company will not be liable provided the disruption is not attributable to a wilful act of the company. This would be of particular comfort to companies given that the adjustment to distanced meetings on virtual fora arose in the tumultuous context of Covid-19 which may have limited the time and resources available to the company to prevent such disruption arising.

 

The focus of the 2020 Act being squarely on Covid-19 is best evidenced by all of its substantive provisions applying solely for the ‘interim period’ included in the Act. This interim period is defined as ‘ending on 31 December 2020’ unless extended by Governmental order. Ultimately, the interim period had in fact been extended to June 9^th 2021 and then again to December 31^st 2021, reflecting the continuing threat of Covid-19 and imposition of social restrictions. Limiting the application of legislation to an interim period is of course understandable in the context of a pandemic given that the measures put in place may not be desirable outside of a crisis. Of further interest however is that interim measures can serve as a guinea pig for future legal reform. In the case of virtual shareholder meetings, the Government has indeed indicated its desire to permit such meetings on a permanent basis going forward, transforming an exceptional statutory instrument during Covid-19 into a permanent feature of the corporate landscape. This is perhaps unsurprising given that digitalisation has been an ongoing trend for years. While Covid-19 acted as an accelerant, it would be regressive to remove this option for companies who find the virtual format preferable going forward. The main question however lies in the extent to which the regime enacted by the 2020 Act will be replicated by the permanent framework.

 

Drafting a Permanent Framework for Virtual Meetings

While the temporary Covid-19 measures have served as an impetus for permanent reform, the future framework cannot be a direct transposition of the existing temporary measures. Most obviously, existing provisions directly addressing Covid-19 would be omitted. For instance, in order to comply with public health advice, directors may cancel the meeting, change the venue or move the meeting to an electronic format with only one day notice – or in exceptional circumstances, no notice at all. Such an inclusion would certainly have been an unusual addition to permanent legislation and as such it is unsurprising to see its removal from the newly proposed framework. Furthermore, given that the power is available to companies notwithstanding any limitation to the contrary in the company’s constitution, this might be seen as too great a power for management with too little accountability outside of the context of a global pandemic. Indeed, prior to the 2020 Act, abrogation from the constitution to facilitate virtual meetings during Covid-19 was something which required judicial approval per Xtrackers (IE) Plc v Companies Act 2014. It is understandable that directors require the flexibility to cancel, postpone or change the format of meetings during the pandemic and that the courts should avoid a flood of applications, but it would be a significant power were it preserved within the permanent framework, meaning the likely reversion is to judicial approval for such changes contrary to the company’s constitution. 

 

Now that the drafting period has commenced it is likely that the Government will respond to feedback from practitioners who experienced the virtual process under the temporary Covid-19 measures. The notice required to members as well as the obligation to provide technological means to access the meeting as far as practicable will likely remain in place. What will be of importance is whether there is any need to expand further on these obligations. For instance, the permanent regime may want to clarify whether the obligation to ensure that members can, as far as practicable, speak and submit questions should explicitly extend to both written and oral communication over the technological medium. Furthermore, while the protection for companies that temporary disruptions do not invalidate meetings is worthwhile preserving, guidance may be needed on what is meant by a temporary as where a disruption goes beyond that, then the meeting may become invalidated under the existing regime. One can also foresee the permanent regime providing a narrower protection for companies in this context. Given that companies have time to prepare outside of the pandemic and that virtual meetings will not be the only option once lockdown ends and in-person communication resumes, there may be less latitude for companies whose meetings are ultimately disrupted through negligent preparation by the company. Thus, while companies are now only liable for wilful disruption to the meeting, the standard may feasibly be lowered within the permanent framework to cover negligent preparation by the company.

 

Conclusion

Covid-19 has served as an impetus for the digitalisation of personal and commercial communication. This has clearly been the case also for corporate engage and shareholder meetings. Now that the Government has announced its intention to permanently allow virtual meetings to take place, the framework adopted the pandemic will need to be adjusted so that it is fit for purpose outside of a crisis scenario.

 

Philip Gavin is a PhD Candidate and Adjunct Assistant Professor in the School of Law, Trinity College Dublin.

 

Suggested citation: Philip Gavin, ‘Shareholder Meetings in Virtual Formats: From Crisis Response to Covid-19 to Permanent Feature of the Corporate Landscape’ COVID-19 Law and Human Rights Observatory (25 May 2021) https://tcdlaw.blogspot.com/2021/05/shareholder-meetings-in-virtual-formats.html

 

Appealing mandatory hotel quarantine: a procedural perspective

 

Cian Henry, Honourable Society of King's Inns

Introduction

Mandatory hotel quarantine (“MHQ”) has been the source of significant controversy since its introduction in Ireland via the Health (Amendment) Act 2021 in March of this year.  Much debate has centred on whether the deprivation of liberty and curtailment of associated rights which is entailed by MHQ can be justified by the public health rationale which underpins it.  Approaching this question from a legal perspective, posts on this blog have considered both the constitutional and EU law dimensions of MHQ generally.  The prevailing view emerging from legal commentators, as reflected in a comment by David Kenny to the Irish Times, is that the substance of the MHQ measures is likely to survive constitutional challenge, but aspects of the procedure underpinning it may be more vulnerable.  

 

In this post, focus is placed on an important procedural aspect of MHQ, namely the process by which a person can review the imposition of MHQ on them.  This review procedure has generated much media attention in recent weeks, in light of a number of notable appeals brought by individuals in MHQ.  In many of these cases, these people have failed in multiple attempts to review their obligation to remain in MHQ via the statutory procedure and have initiated Article 40 proceedings to challenge what they maintain is their wrongful detention.   In many cases, the State has released persons bringing Article 40 proceedings such that the proceedings have been struck out; however, several of these cases shed light on certain notable features of the review procedure and will be considered later in this piece.  This piece will provide a short analysis of these features, but first a summary of the measures governing the MHQ review procedure is provided. 

 

Outline review procedure in Health Act

The review procedure for MHQ is provided for by s. 38B(17) of the Health Act 1947, as amended.  A review is triggered by a request from a quarantined person.  Where such a request is made, the Act requires a designated appeals officer (“DAO”) to conduct a review as soon as practicable and in any case within 24 hours of the making of the request.  A DAO is described by s. 38B(25) of the Act as “an independent appeals officer designated by the Minister”.  In answer to a parliamentary question, the Minister for Health has clarified that there are 35 appeals officers, who have been selected from the ranks of barristers who have provided a previous service to the International Protection Appeals Tribunal.  The DAO responsible for reviewing a particular request is required to call on and consider “such evidence as he or she requires to make a decision in relation to that request”.  Having done so, they must either determine that the person is no longer obliged to remain in quarantine or refuse the request and provide reasons for such refusal. 

 

Section 38B(16) sets out the possible grounds on which a person can rely when making a request for review.  It would appear from the language of the Act that the grounds therein listed are intended to be exhaustive.  For purposes of illustration, the seven grounds listed can be divided into two categories: one where release is justified on the basis of a reduced risk of COVID transmission, the other where release is justified on non-COVID related grounds.  The first category includes instances where a person never met the entry requirements for MHQ (s. 38B(16)(a)), where they now meet the exit requirements ((b) and (c)), and where they have undergone pre-quarantine and certain testing (g). The second category, being less technical and touching more directly on certain kinds of rights deprivations, has generated more controversy.  In particular, there is an exemption for medical and other exceptional reasons including the necessity of providing care for a vulnerable person (d), urgent humanitarian grounds (e), and for dependant persons with special needs or other circumstances pertaining to them which make quarantine inappropriate (f).  It should be noted that, where the DAO is satisfied that a ground for appeal has been raised, they must determine that the person is no longer obliged to remain in MHQ.  In this sense, s. 38B(17) does not  appear to vest the DAO with discretion as to the determination of appeals.

 

Regulations setting out precise procedure 

Pursuant to s. 38G of the Act, the Minister for Health has made regulations which set out in more granular details the procedure to be applied with respect to these appeals.  These regulations clarify a number of significant points.  First, the process for making a request for review is that the request is made to a state liaison officer who is a responsible person present at a designated facility.  A request may be made any time from 8am – 8pm and is made by way of an application form.  A person must be given this application form upon their arrival at the quarantine facility if they have not already been given it at the airport or port into which they arrived.  The completed application form should specify which of the grounds set out above are to be relied upon, and should include such information and documents as the applicant wishes to include.  Where a translator is required, the regulations require that arrangements are made for this. 

 

Second, regulation 5 provides for the role of chief appeals officer (“CAO”), who is appointed by the Minister for Health.  On a day to day level, the CAO receives the review request from the state liaison officer and allocates it to a DAO, who returns the completed decision to the CAO to be passed back to the state liaison officer.  At a higher level, the CAO reports to the Minister the number of requests received and the outcome of these requests.  In addition, the CAO may issue guidelines to DAOs in relation to the conduct of, or arrangements for, any requests for review. 

 

Third, the regulations give more detail on the form of procedure which is required where a request is under consideration.  Notably, regulation 8 states that a decision in relation to a request for review shall be made without an oral hearing, except in exceptional circumstances which are determined at the discretion of the DAO.  Any exceptional oral hearing which occurs is to be a remote hearing.  A DAO may, for purposes of clarification or verification, seek further information from any person, including the applicant.  In making their decision, the DAO is required to have regard to the application form, further information submitted, guidelines set down by the CAO, and any other relevant information.  Having done so, the DAO must provide a decision, one way or the other, in writing, including reasons for that decision.  Finally, the regulations clarify that second or subsequent requests for review are possible, and that there is no fee payable for the making of a request.  

 

Review procedure in practice 

While the procedure for appeals as set out in legislation and regulations has been set out above, the manner in which it is applied in practice is less clear.  Although the CAO reports to the Minister on the operation of the review process, these reports are not required to be published, and have not been.  However, media reporting and answers to parliamentary questions have provided a snapshot of what is occurring.  Notably, the Irish Times recently reportedthat, as of 26 April, there had been 685 reviews initiated against MHQ.  Of these, 614 (just under 90%) had been refused, with 71 granted.  Unfortunately, this provides little insight into the reasons for decisions and the procedure which is in reality being adopted (for example, how often oral hearings are held).  Notwithstanding the relative obscurity of the system, it seems that three issues with the operation of MHQ have been persistently raised by concerned parties, and these are examined below.  In some instances, cases which have received media attention, usually through the initiation of Article 40 proceedings, can shed some light on tensions emerging within the review process. 

 

Detention as pre-requisite for challenge  

An apparent anomaly in the review procedure is that it can only be initiated after a person is detained.  This became apparent in a recent case involving a man who wished to travel home from the United States to visit his dying father.  Prior to travelling, he sought an exemption from MHQ on humanitarian grounds, but was advised that in order to challenge his detention he would need to travel to Ireland and be taken into a designated facility.  He did so and was successful in his review, however some have argued that the requirement to be detained in order to claim an exemption is unsatisfactory.  Indeed, the unavailability of a pre-detention review has been criticised in the Dáil by two opposition TDs, Holly Cairns and Roisin Shortall, on the basis of the practical and financial difficulties it creates for certain travellers.  Such difficulties are well illustrated by a case recently reported in the Irish Times, where a woman in Dubai wished to travel home to Ireland for the funeral of her brother who had died unexpectedly.  As observed by the woman in a comment to the media, in order to challenge the imposition of quarantine, she would be required to book not only a flight but also a stay in MHQ (itself costing €1,875), in addition to actually beginning the detention.  The uncertainty that this would entail, alongside the financial barrier, deterred her from travelling.  

 

On one account, this is MHQ working as intended by deterring international travel.  On another, the manner in which the procedure is set up creates serious practical and financial barriers for people wishing to exercise their right to seek an exemption from MHQ.  Arguably, this state of affairs possesses a discriminatory edge insofar as, in practice, only those with the means to pay the cost of an MHQ stay upfront can avail of their right of appeal.  In the case where a person has an exceptional reason to travel to Ireland, giving rise to a good reason for an exemption from MHQ, but cannot in reality benefit from same, their rights are harmed in a manner that on the face of it seems disproportionate.  For this reason, the State may at some point be required to justify its omission to allow reviews to be taken prior to travel. 

 

Fair hearing 

As alluded to previously, it is difficult to know exactly how often an oral hearing is held in order to determine a request for review.  However, the strong presumption within the regulations that an oral hearing is not to be held, coupled with the short 24-hour turnaround time, would suggest that an oral hearing is rarely held.  The lack of an oral hearing for reviews has been denounced in a legal briefing written by the Irish Council for Civil Liberties (ICCL), which also criticises the absence of legal representation for persons requesting reviews.  It is a well-recognised principle of Irish and European law that a heightened obligation to ensure robust procedures exists where a possible consequence of a hearing is the detention of a party.  Thus, this criticism clearly raises the issue of whether the requirement to stay in an MHQ facility can be classified as a matter of law as ‘detention’.  It appears that it has generally been accepted in Article 40 proceedings taken thus far that being compelled to stay in hotel quarantine is a form of detention.  For example, in the case of an Israeli woman who initiated habeas corpus proceedings on the basis of her vaccination status, it was conceded by counsel on behalf of the State that the applicant was being detained.  This seems a logical conclusion to reach based on the essential nature of MHQ as a requirement to stay in a particular place, enforceable by Gardaí and by criminal penalty as seen in the case of two women arrested and charged for refusal to undergo MHQ.  

 

The robustness of procedures required where involuntary detention is concerned was considered by the Supreme Court in Croke v Smith (No. 2) [1998] 1 IR 101, where it was held that there was no general requirement for a review to be made of a patient’s detention under the Mental Treatment Act 1945.  It is notable, however, that this area of law has since been reformed by the Mental Health Act 2001 and now every involuntary detention requires a tribunal hearing.  However, some other factors may militate against a finding that an applicant for review is denied a fair hearing.  Most particularly, the maximum period of detention in MHQ being relatively short means that the interference with liberty is significantly smaller than most comparable situations.  Further, given the necessarily short turnaround time, it is likely that a paper-based review would be justified from a practical perspective.  Additionally, a person in MHQ at all times retains the ultimate right to review the legality of their detention via the Article 40 procedure and this aids in mitigating any infirmity in the statutory procedure.  

 

Failure to account for personal circumstances 

As explained above, the possibility of success in reviewing MHQ is entirely tied to the exemptions set out in s. 38B(16) of the Act.  It would appear that the said list of exemptions is exhaustive and that appeals officers are not vested with any discretion.  Some have questioned whether this method of decision-making is too rigid, and whether it prejudices applicants by restricting appeals officers from considering cases on an individuated basis which takes account of all personal circumstances.  This argument was raised in Article 40 proceedings where a South African woman contended that an appeals officer could not consider her personal circumstances and in particular her status as partly vaccinated.  However, the High Court judge found that the woman had been detained lawfully.  Since that time, the law has been tweaked so as to add vaccinated persons to the category of exempted travellers.  To a significant degree, the validity of the concern that appeals officers cannot consider individual circumstances depends on how restrictively exemptions are interpreted in practice.  For example, in principle ‘humanitarian grounds’ is capable of encompassing a broad range of circumstances.  In one case, a seemingly very restrictive approach was taken to the interpretation of humanitarian grounds, in circumstances where a man was returning from Israel to visit his dying father and was twice rejected release on the basis of humanitarian grounds.  However, in a more recent review, a man returning from the United States in very similar circumstances was succeeded in demonstrating humanitarian grounds. 

 

It seems that this criticism of the MHQ review procedure tends to collapse into substantive criticism of the narrowness of the exceptions for which the legislation provides.  While potentially valid, returning to the beginning of this post, it was suggested that such criticism is unlikely to undermine the legality of the MHQ review procedure.  In a similar vein, the European Commission has denounced the Irish MHQ regime on the basis that it fails to set out ‘clear and operational exemptions for essential travel’.  This comment can best be understood by reference to the principle of proportionality, which of course occupies a central role in European law.   Whether the exemptions set out in Irish law are disproportionate and in breach of European law is a worthy question which has been considered elsewhere, but does not as such go directly to the question of whether the Irish review process is procedurally defective.  

 

Conclusion

With a new set of regulations, the Minister for Health has provided a procedure for the review of MHQ by reference to a set of explicit legislative exemptions.  This post has summarised the procedure to be applied and suggested that three features of this procedure have in particular generated controversy and, to varying extents, come into tension with the rights of persons detained in MHQ.  First, the lack of facility for a pre-detention challenge means that in practice significant practical and financial barriers stand in the way of a person seeking to claim an exemption from MHQ.  Second, the rarity of oral hearings and absence of legal representation in circumstances where a person is detained in principle raises fair hearing concerns, although such concerns will be counterbalanced by the relatively short period of detention and the exigencies of public health.  Third, there is some concern in relation to the rigidity of the exemptions to be applied and the extent to which appeals officers can consider cases on an individual basis.   Given that procedural infirmities are more likely to undermine the legal validity of the review process, these matters will be of concern to detained persons and the State going forward.

 

Cian Henry is a graduate of Trinity College Dublin and Harvard University, and a student at the Honourable Society of King’s Inns.

Suggested citation: Cian Henry, 'Appealing mandatory hotel quarantine: a procedural perspective' COVID-19 Law and Human Rights Observatory Blog (13 May 2021) https://tcdlaw.blogspot.com/2021/05/appealing-mandatory-hotel-quarantine.html

 

 

Broadening access to Covid-19 vaccines: intellectual property dilemmas and the role of the EU

Giuseppe Mazziotti, Trinity College Dublin

 

Introduction

In the past few months, the World Health Organization (WHO) has been claiming that the only effective solution to immunize the world's population from the SARS-CoV-2 virus is a vaccine intended as a common or public good, accessible to everyone without geographical and economic discriminations. However, it has been hard to achieve such an ambitious goal at a time global intellectual property law, as defined under the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement administered by the World Trade Organization (WTO), conceives drugs mostly as a form of private property subject to patent protection. 

 

Unfortunately, none of the limitations of pharmaceutical patent protection embodied in the TRIPS Agreement applies to a health emergency with no geographical boundaries, such as the current pandemic. A specific solution to this problem might derive from the adoption of a pandemic treaty, an idea that the WHO will start discussing in an assembly in May 2021. Such an unprecedented instrument could pave the way for international obligations enabling free access to life-saving drugs, such as vaccines, and effective standards of supranational sharing of scientific knowledge on a free or at least sustainable basis for all the world’s countries. 

 

At government level, the disruptive effects the Covid-19 pandemic has had even within the most-developed countries have spurred a predominantly nationalist approach to public health protection, to the detriment of an international cooperation and solidarity. This approach has made the wealthiest countries compete in securing the largest supplies from each of the vaccine manufacturers for their own peoples, to reach a long-awaited (although purely territorial) herd immunity. In this scenario, least developed countries and other poor economies have been benefiting from initiatives that public-private institutions and consortia such as Medicines Patent Pool (United Nations), the WHO’s Technology Access Pool (TAP) and GAVI’s Covaxinitiative are currently putting in place to broaden distribution of available vaccines. 

 

Compulsory licensing

In this unprecedented situation - at least in the past century – it is hard to understand why the European Union and its member states have not tried to implement powerful legal instruments that are expressly contemplated under the TRIPS Agreement, such as compulsory licences of pharmaceutical patents. The sole fact of openly taking them into consideration or threatening their use within their own borders, while negotiating with pharmaceutical companies, would have allowed EU members to obtain better prices and conditions for their vaccine supplies. 

 

According to the original version of the TRIPS Agreement (1994), each WTO member was entitled to allow uses of a patented drug without the right-holder’s consent in cases contemplating national emergencies or circumstances of extreme urgency, predominantly for the supply of the domestic market. This exception entailed that countries without domestic manufacturing capacity in the pharmaceutical sector could never have used this tool to enable access to generics. It was South Africa that, in 1997, amended its patent law to allow its Minister of Health to provide affordable generic forms of essential drugs, including anti-HIV therapies,triggering a harsh reaction from pharmaceutical groups and the US government, which claimed a violation of WTO law. It was in that historical context that the 2001 Doha Declaration on the TRIPS Agreement and Public Health amended the Agreement to allow WTO members not only to locally manufacture but also to import (and export) generic versions of patented medicines. The EU strongly supported this amendment by passing Regulation 816/2006, which enables EU member states to readily respond to help requests coming from third countries having no manufacturing capacity and legalize production and export of generics within the limits justified by each health emergency.    

 

The role of the EU 

What should the EU have done, and what it could still do, to make access to available Covid-19 vaccines faster, fairer, and wider, even in least developed and developing countries that, for obvious historical reasons, look at Europe in situations of health and humanitarian crises?

 

Serious delays in the current vaccine rollouts are not entirely a European Union’s fault. The Commission and other EU bodies have found themselves facing the Covid-19 pandemic emergency without controlling two essential areas which are fundamental to the development and distribution of vaccines, namely: (i) health systems, which are strictly state-owned, and (ii) the European patent system, whose organization, the European Patent Organisation (which includes the European Patent Office) is not a EU institution and does not pursue full harmonization (or unification) of national patent laws, especially in the domain of patent exceptions and compulsory licences. 

 

The purely contractual path the EU Commission has decided to take, with the support of its complex bureaucracy, by centralizing all acquisitions and supplies of vaccines for the EU population, proved to be much less effective and timely than vaccination campaigns in the United States and the United Kingdom. The ensuing restrictions EU member states took, in an uncoordinated and very often anti-European fashion, established unprecedented exceptions to the principles of free movement of people and unity of the Single Market, which are authentic cornerstones of the European Union. This nationalist approach has resulted in immeasurable damages to European economies and the sacrifice of European citizens’ fundamental rights that national authorities have imposed without adequate justification and a reasonable time limit. The fact that the Commission intends to re-establish free movement of tourists and other travelers through a Digital Green Certificate without seeking to ensure a significant acceleration of vaccine rollouts is a further blow to citizens’ fundamental rights and to the Schengen agreement. 

 

If vaccination campaigns are being so heavily delayed and widely unpredictable, causing so much economic harm, why has not the European Union discussed and tabled intergovernmental or legislative initiatives that could have significantly increased production and supplies of Covid-19 vaccines on a EU-wide basis? Why has not it encouraged EU member states to plan a concerted application of Regulation 816/2006, to help third countries produce and import life-saving vaccines? Even more importantly, why has not the EU immediately endorsed the proposal for a temporary waiver of Covid-related pharmaceutical patents that India, South Africa and dozens of other countries made before the WTO Council, from October 2020 onwards? Having expressly acknowledged the relevance and desirability of a relaxation of patent rights and having advocated, one year ago, the idea of vaccines as public goods through its President Von der Leyen, the EU should have taken the lead in supporting compulsory licences or temporary waivers at international level. A lead that is now being taken by the US trade representative before the WTO following a statement of President Biden on May 5^th, 2021. 

 

The position of EU member states  

Given this inaction at the EU level, and lack of uniformity under national patent laws, national governments found themselves in very different situations. Most EU countries (including Austria, Belgium, Czech Republic, Denmark, Spain, Finland, Greece, Croatia, Netherlands, Poland, Portugal, Romania, Sweden) already had provisions in their legislation allowing compulsory licences to enable access to essential drugs on public health grounds or, through a broader definition, in the public interest. Other EU members (such as France, Germany, and Hungary) took a step further by reforming their patent laws to be able to broaden and streamline use of this powerful tool for specific purposes related to the Covid-19 pandemic. Other EU countries, instead, did not take any measures in this field, buying the argument of the pharmaceutical industry that vaccine manufacturers could have coped with the ongoing emergency doing their business as they usually do, i.e., through voluntary licences. The fact that countries like Ireland and Italy are part of the latter group should not come as a surprise if one considers how strong and influential the lobbying of large pharmaceutical companies headquartered in both countries can be on governments, political parties, and the media. 

 

A policy agenda under the control of the EU

Within the policy areas entirely under the control of the European Union, two of them could play a greater role in improving and broadening access to vaccines in the current pandemic. The first is the pharmaceutical law concerning quality and safety controls, as well as market authorizations, based on the federal regulatory power of EMA, whose acts are uniformly valid throughout the EU. The second one is competition (or antitrust) law.

 

As regards pharmaceutical regulations, one can only imagine the administrative and public health chaos the EU would have faced if a pandemic like Covid-19 had broken out before the establishment of a centralised procedure for market authorisations in 2004. Twenty-seven national pharmaceutical agencies would have made potentially conflicting decisions, making the actual harm even bigger than it has been. In this context, the authority of EMA ensured not only uniformity but also availability of ad hoc and fast-track procedures, where all the relevant data and clinical trials related to Covid-19 vaccines have been examined as soon as their manufacturers submitted them (rolling review). What could be done at this stage is a reform of the EU regime of market exclusivity, which currently grants pharmaceutical companies a proprietary right to control access to their drugs’ clinical trials and data and to prevent third parties from producing generic versions. In a context such as a pandemic, these exclusive rights should be limited or suspended to make compulsory licences immediately effective.

 

As far as antitrust is concerned, the EU Commission has extensive powers of investigation, inspection, and sanction against companies to verify whether serious delays and failures in the supply of Covid 19 vaccines to EU countries are in any way linked to any refusal to grant licences or to agreements (which would clearly be illegal) aimed to slow down the sale on the market of much larger amounts of vaccines. A serious investigation on this front would be much more effective than any lawsuits like those that the EU Commission and some national governments (including Italy) have threatened against manufacturers because of their delays and failures to provide contractually agreed supplies. 

 

Conclusion

Exceptional circumstances such as a pandemic justify limitations of the scope of intellectual property rights, whose strict enforcement has harmful consequences on people’s right to health and other fundamental rights. It is time for EU institutions and national governments to act in a much more coordinated way and to use exceptional powers they have at their disposal or whose availability depends on reforms and policy changes that, especially at international level, would greatly help face global health emergencies in the future.  

 

Giuseppe Mazziotti is a Fellow and Assistant Professor at Trinity College Dublin.

 

Suggested citation: Giuseppe Mazziotti, ‘Broadening access to Covid-19 vaccines: intellectual property dilemmas and the role of the EU’, COVID-19 Law and Human Rights Observatory (11 May 2021) https://tcdlaw.blogspot.com/2021/05/broadening-access-to-covid-19-vaccines.html

 

Ireland most stringent Covid restrictions in EU since January: Way out of lockdown has to keep on prioritising children’s education

 

Stephan Köppe, UCD School of Social Policy, Social Work and Social Justice 

Robert Cazaciuc, UCD College of Social Sciences and Law

 

Inrtroduction

Despite the vaccine rollout, governments across the globe still grapple with containing the Covid infections, keeping hospitalisations down and preventing a surge in fatalities. Since last spring, a group of researchers and volunteers, led by Oxford University, have tracked the multiple government restrictions to citizens, businesses and society at large in almost every part of the world. Last week we have launched the UCD Covid Compared dashboard – in short UCD CoCo – to easily access the underlying data of these Covid policy responses and make the tremendous work of the Oxford team more accessible to everyone through simple colour-coded tables and graphs.

 

Table 1: Ten most stringent countries in Europe since March 2020

 

Following the third lockdown and opening up of Ireland in April, the obvious question is how strict were Ireland’s rules compared to other EU countries? Out of 42 countries, Ireland had the 3rd most stringent restrictions since the beginning of the pandemic. Only Italy and the UK had enacted tougher rules since March 2020. Broken down by some key indicators, Ireland had closed workplaces and businesses much longer and tougher than any other European country. Similarly, on public transport restrictions Ireland is within the top 5 and for stay-at-home requirements and school closures within the top 10. Most noticeable is that Ireland’s rules on international travel were very lax throughout 2020 and were only tightened after the Christmas travel debacle (Figure 1).

 

Figure 1: Lax international travel restrictions compared to EU28

 

Toughest Lockdown in First Quarter of 2021

Between January and March this year, Ireland had the toughest restrictions in place across Europe. Of course, Ireland also faced the worst incidence rate during that time and the health system was at the brink of collapse. It is still too early to fully assess if these tight rules have contributed to the overall low mortality rate. In the middle of a pandemic it is very hard for social scientists to evaluate which of the policy measures has contributed to keep the infection rate down and how other factors outside of the control of governments have mitigated the mortality rate. It has been argued that the relative young age profile of the Irish population might have kept the mortality rate down, despite the virus circulating relatively freely in December. On the other hand the returning Irish diaspora, who was desperate to visit loved ones over Christmas, might have fuelled the surge of the virus back then more than in other countries. Despite the overall tight the restrictions, the lax international travel rules might have been the weak link in our Covid defences.

 

While all restrictions were escalated quickly to their maximum in January, our UCD CoCo Dashboard also reveals how the coalition emphasised to reopen schools quickly this time, compared to relative late reopening of creches and schools in the first wave (Figure 2). While having enacted the maximum restrictions in other areas of society, the educational progress of children – and mental health of working parents – had been rightly prioritised. However, Ireland continued to score very weakly on travel restrictions, testing policies and contract tracing during the third lockdown. These apparent flaws in health service related indicators may contribute to the stubbornly high case rate across the country, despite shutting down the country with relative blunt containment instruments.

 

Figure 2: Ireland reopens schools late in first wave, but prioritises return to schools in third lockdown compared to EU28

 

In the Dark about Enforcement 

Although UCD CoCo reveals that Ireland is among the most stringent rule makers, we cannot assess its enforcement. For instance, Ireland had a very poor record in enforcing the anyway permissive quarantine and travel restrictions. Despite some high-profile media investigations that led to the resignation of the EU Commissioner Phil Hogan, this was the exception rather than the norm. Such public outcries highlighted the lack of enforcement across the country and everyone driving through check points played along the charade associated with tough rules and weak enforcement. We also do not know yet, if the tighter restrictions were more effective in keeping the population safe or the economy rolling.

 

Encourage Data-driven Public Debate

What we do know is that Ireland had – on paper – enacted one of the most stringent Covid policy responses in Europe. Whether it has paid off, we will only know once the majority of the population has been vaccinated and this is all over. Regardless of whether we cheer to the Irish success regarding managing the pandemic or drink down the poor government record with sorrow in a pub, at least we know then that it is over. However, the public debate on which policies were successful will continue for a bit longer. We hope that the UCD CoCo can contribute to this policy discussion by making the key data and indices more accessible for everyone.

 

 

Dr Stephan Köppe is Assistant Professor of Social Policy and Robert Cazaciuc is Master of Public Policy student at UCD.

 

Suggested citation: Stephan Köppe and Robert Cazaciuc ‘Ireland most stringent Covid restrictions in EU since January: Way out of lockdown has to keep on prioritising children’s education’ COVID-19 Law and Human Rights Observatory (6 May 2021) https://tcdlaw.blogspot.com/2021/05/ireland-most-stringent-covid.html

The Ghost of Crisis Past - Social Partnership 2.0 (Pandemic patch)

    Jack Larkin, Pembroke College, University of Oxford.

Social Partnership is on the march again, maybe. Oft-blamed as one of the key contributors to the last economic crisis (unfairly), there is talk in the Pandemic of reviving the idea in a new, jazzy form: social dialogue. Everyone seems to have agreed not to use the actual term ‘social partnership’, and also not to confine the model to grubby wage deals; social dialogue will be more into a holistic approach to how society and government can work together for the common good: a new social contract.

 For some, the green shoots for this new social partnership (for simplicity I’m going to keep using the term) appeared earlier during the pandemic, for example, s. 28 of the Emergency Measures in the Public Interest (Covid-19) Act 2020, which provides for wage subsidies for employees, initially excluded women who were returning from maternity leave. The unions rightly sought to have this changed. The Government admitted the oversight and the Oireachtas amended the Act.

More substantially, the Labour Employer Economic Forum has been pointed to as another example of the idea’s success, as it contributed to the first ‘return-to-work’ policy following Lockdown 1.

For others (read: myself), it’s difficult to see how such examples avoid the elision of ‘social partnership’ with its more anaemic cousins: ‘public pressure’ and the even punier ‘engagement with civil society’. For example, the children’s shoes issue: children’s clothing in general was ‘non-essential’ last October; then it simultaneously became ‘maybe essential but under review’ and ‘absolutely essential, awaiting urgent reform’. Would we say these changes were ‘social partnership’ simply because some social partners were involved?

Moreover, it’s difficult to see how social partnership can be seen to be flowering again in Ireland when one considers the following events, all of which occurred during pandemic. First, the collapse of the Low Pay Commission talks last September, wherein unions were unable to get a mere 20c increase on the minimum age. Second, the looming threats of industrial action by teachers. Third, the State’s demonstrated lack of trust with what workers and employers are spending their welfare supports on. Fourth, the more general criticism, made prominently on this blog, that the State and society often seem to be out of sync in their understanding of what is and is not restricted.

So it’s fair to say that the pandemic has not been Ireland’s moment for a Union Sacrée.

But this piece isn’t about pummelling the concept of social partnership as it’s sometimes (mis)understood. It’s  short piece about what a return of the idea could mean for society and law in Ireland.

But first, some history.

Partnering Down

When the financial music stopped in 2008, the social partners finished dancing too: IBEC was out; ICTU was out; and for the politicians clearing away the broken glass, there was a sense that the model, bargained as it was outside the Oireachtas, was a bit subversive. As Enda Kenny said at the time:

The social partnership model practised by previous governments had become a closed shop, where decisions with national consequences were made behind closed doors by a chosen few, accountable to nobody.

He had a point (ironic as it was from the man who ran the Economic Management Council). For example, the decision to exempt the Public Service Benchmarking Body (responsible for much of research justifying the wage increases under social partnership) from the Freedom of Information Act led to budgetary expenditure which was difficult to scrutinise without the relevant data.

We see now that the social partnership initiatives which survived the crash (or have been set up since) have pleasant names which convey a certain openness: they’re forums, commissions, centres: transparent bodies whose minutes and publications can be read on State websites.

The current momentum following the pandemic seems to be all about intensifying these forums: ramp up the Labour Employer Economic Forum – get the Low Pay Commission talking about the living wage again – have a new code that might sometimes be used at the Workplace Relations Commission.

In the meantime, however, the government is dead against giving any actual substantial legal rights to unions and workers vis a vis collective bargaining and minimum wage entitlements, making  efforts to stymie the current efforts on the European scene for a directive for such rights. Another front in that particular struggle has also opened up in the courts, where an important decision is awaited on collective bargaining rights.

But let’s pause for a moment and summarise what the government position actually is. Their thinking can be followed like so:- ‘we can’t return to the Social Partnership of the past because that lacked legitimacy and accountability – we don’t like the present social partnership-lite because it seems too tepid and shuts out too many voices – however we don’t want to give too much power to the unions legally – so let’s just intensify the existing dialogue structures we have’.

However, intensifying existing social dialogue structures alone would be a mistake. If policy-makers learn from the discoveries of the pandemic, great progress could be made for both workers’ interests and the rule of law.

 The Opportunities

The Irish Small to Medium Enterprise Association (ISME) didn’t like the old social partnership model. Part of their beef was with the membership – why were they not allowed in? Why did others get the chance to chat to power? Was it a case of elites only talking to other elites?

Tragically for ISME, they continue to mostly huff outside the social partnership cordon of power (Note the latest activities of LEEF in the childcare sphere). Some initiatives have been more broad-minded, such as the National Economic Dialogue, but its scope is limited: NED lasts for 2 days a year and exists primarily to discuss what might go into a pre-budget submission, not the actual budget, with the Chair in 2019 noting that the process did ‘not have identified clear priorities for Budget 2020 and could be viewed as having provided too much sectoral pleading and not enough discussion of the “national interest”.

But it’s not just ISME who remain outsiders. The pandemic has shown that there are a large number of un-unionised, unrepresented workers in Ireland who work in difficult conditions with few rights (think of the early outbreaks in meat factories). Who will speak directly on behalf on these people and convey their grievances?

Moreover, this point cuts both ways: the pandemic has also shown us enormously powerful non-statutory, ad hoc bodies who are deferred to and sometimes treated almost like another constitutional arm (for example, the recent deference to NIAC on the Johnson & Johnson vaccine), which has made others (read again: me) slightly queasy about the constitutional order.

Any re-thinking of a social dialogue model should radically consider who is in and who is out and the kinds of structures for dialogue we put in place. This kind of thinking will have to engage seriously with corporatism and how to emphasise its democratic nature. However, such an approach will have its pay-offs, consider the following example:-

Much has been made of the recent issue regarding religious worship and the movement restrictions, with some arguing that a rule of law violation has been committed by the government in stating that religious restrictions were banned when they weren’t. Indeed IHREC’s recent report pointed to a number of other similar violations, where the law and the government’s commands to the public were out of step.

Regardless of who is actually in the right about these issues, a social dialogue model which had engaged with those to whom these commands were spoken ahead of time might have saved costly litigation, clarified legislation before its promulgation, given a voice to all those affected, and ultimately achieved better compliance.

Such an approach may lead to some unpalatable dialogue - some might baulk at the idea of a minister and an archbishop pre-emptively discussing whether mass might be banned in another lockdown (as opposed to afterwards)– but such are the costs of seriously committing to liberal democracy, wherein many groups are to be given a voice. My point in this regard is that it’s easier to adopt an ex-ante approach of a partnership rather than the inefficient post hoc posture of a unilateral command – when everything is broken, people are angry, and court lists begin to fill up.

This is neither quixotic nor foolish: not foolish because pandemic measures rely on everyone’s constant compliance and so it is wise to make the people both the subjects (and not just the objects) of any measure through partnership and dialogue. It is not quixotic because it has been done elsewhere: social partnership in Austria quickly devised a comprehensive wage subsidy scheme, leading to praise for both its generosity and its maintenance of a relatively low unemployment rate (though there are important differences here, not least that corporatism has been alive and well in Austria since the guilds of the Holy Roman Empire, but I do not have the space right now to say why that’s not a huge problem).

This ghost of a crisis past may flicker away with the news cycle, but if the government is serious about reviving an idea of social partnership, then they first need to be radical about who they are going to talk to.

Jack Larkin is a graduate of Trinity College, Dublin and the London School of Economics. He is currently a Master’s in History candidate at the University of Oxford.

Suggested citation: Jack Larkin, ‘ The Ghost of Crisis Past - Social Partnership 2.0 (Pandemic patch)’ COVID-19 Law and Human Rights Observatory’ (4 May 2021) https://tcdlaw.blogspot.com/2021/05/the-ghost-of-crisis-past-social.html