Ask an Expert: Campaigning for Prisoners’ rights during the COVID-19 pandemic, with Irish Penal Reform Trust

 

In the midst of the COVID-19 pandemic, prisons pose a particularly challenging environment in which to prevent the spread of disease. Next in our Ask an Expert series, PRILA asks Fíona Ní Chinnéide, Executive Director of Irish Penal Reform Trust (IPRT) about IPRT’s work, with a specific focus on advocating for prisoners’ rights during the COVID-19 pandemic. Established in 1994, IPRT is a leading NGO in Ireland dedicated to advancing the rights of people in prison and penal reform. Given the unique challenges that COVID-19 poses for prisons, we appreciate the insight and reflections Fíona provides here.

The PRILA Project (Prisons: the Rule of Law, Accountability, and Rights), located at Trinity College Dublin under the leadership of Prof Mary Rogan, aims to improve policy and practice in the governance of Europe’s prisons.

 

Questions:

1. Ireland has been notably successful in managing COVID-19, with no cases reported thus far amongst people in prison. What do you think is unique or particularly significant to the approach taken by the Irish Prison Service to combat the threat of COVID-19?

 

Early action on reducing prison crowding was one of the most significant preventative actions taken in Ireland, in stark contrast with England and Wales in particular. From the moment the pandemic was declared, the UN, Council of Europe, WHO and others were insistent that the release of prisoners was essential to prevent COVID-19 from “rampaging” through crowded prisons, given the difficulties of adhering to public health guidelines, coupled with the compromised health that generally characterises prison populations. Ireland responded by releasing over 10% of the prison population from mid-March to mid-April 2020, and numbers have continued to fall slowly. There were 3,672 people in prison on Friday 19th June 2020; this is the lowest figure since 2017.

 

Importantly, people weren’t simply let out: prison service staff and community-based organisations worked closely to ensure planned structured releases from prison, and prevent release into homelessness. There have reportedly been very few recalls to prison, which underscores just what can be achieved by joined-up collaborative working – something that IPRT, the Interagency Group for a Fairer and Safer Ireland, the Penal Policy Review Group and others had called for over many, many years.

 

Another key element has been good communications between prison staff and prisoners. The Irish Red Cross prisoner volunteer programme, in particular, has played a critical role through the peer-to-peer sharing of information about COVID-19, helping to foster an environment of trust and co-operation within the prisons. This is essential as COVID-19 restrictions have resulted in particularly harsh prison conditions. The success of keeping COVID-19 out of prisons has not been without impact on the physical and mental health and wellbeing of people in prison.

2. Can you share with us some thoughts on how COVID-19-related restrictions have impacted families?

 

Families are often described as the “hidden victims” of imprisonment, and the burden of having a family member in prison is significant at all times. In response to COVID-19 risks, children have not been allowed visit prisons since mid-March, and all in-person visits have been suspended since the end of March. This means that around 6,000 children in Ireland have not hugged their parent in prison in almost four months. It has been a deeply worrying time for families concerned about the health of their loved one in prison, and for people in prison feeling helpless concern for their families outside. At the same time, for some families, it has been experienced as a break from having to travel sometimes long distances at significant financial expense for what can be a short and unsatisfactory visit with their loved one.

 

Innovations introduced by the Irish Prison Service include the ability to lodge money electronically into the family member’s prison account and video calls. However, it is critical that video visits are retained as an option and not as a replacement for in-person visits when life returns to ‘normal’ in future.

 

3. IPRT has been active in calling on the government to take measures to reduce the prison population, both before and in response to the threat of the COVID-19 pandemic. What steps is IPRT taking to ensure the IPS continues these practices after the threat of COVID-19 has subsided?

 

Although IPRT has so far resisted saying “I told you so” (externally, at least!) it remains the case that if the actions and recommendations IPRT had made over many years had been implemented previously, the prison system would have been starting from a different place in March 2020 when the pandemic was declared. Prisons would have been operating within capacity, video calls would already have been available, there would have been a seamless transition to e-learning when the closure of prison schools was announced, and more. We welcome that so many positive reforms have been achieved in such a short time; however, it should not have taken a global pandemic for this to happen – the evidence was already there to support these reforms. A key challenge for IPRT now is to ensure that we don’t return to “business as usual” as the threat of COVID 19 recedes, and to ensure that good practices are retained.

 

An objective for IPRT this year is to capture the positive reforms that have been implemented, document how these reforms were achieved, outline and measure the longer-term benefits of the reforms to wider community and society, and then advocate, engage and raise awareness across all stakeholders – from policy-makers to legal professions, from legislators to the wider general public. The centrepiece of this work will be the 2020 edition of our annual Progress in the Penal System report.

4. What are the challenges ahead for the prison service? And, are there any lessons learned from the response to COVID-19 that may shape Irish Prisons going forward?

 

Restrictions that were introduced in line with public health guidance on residential settings should now be eased in line with the same guidance, in order to reduce the significant negative impact of the measures on men and women in prison. However, managing the expectations of people in prison and their families on the outside as Ireland slowly re-opens will be challenging – particularly if there is any resurgence of the virus in the community.

 

Some specific challenges that lie ahead for the Irish Prison Service include:

1. Responding to the long-term mental health impacts of what has been de facto solitary confinement for a large cohort of the prison population.
2. Maintaining social distancing while operating above the prison capacity levels that would allow for single-cell occupancy of cells.
3. Preventing release into homelessness in the longer term.

 

Lessons from COVID 19 include:

 

1.     The importance of external monitoring and oversight of prisons. The absence of published inspection reports on prisons means that we have little insight on current prison conditions and the extent to which the human rights of people in prison have been respected during the pandemic. This is a concern.

 

2.     The importance of good communication. In particular, the role that the Irish Red Cross Prisoner Volunteer Programme played in peer-to-peer communication and working alongside prison staff has been key to the success of keeping COVID-19 out of prisons in Ireland. Empowering and giving agency to prisoners was essential to this success, and forms a good basis for increased opportunities for prisoner groups in future.

 

3.     The recognition of the continuum between prison health and public health, and the inclusion of the Irish Prison Service Executive Clinical Lead in the NPHET Vulnerable Persons Subgroup has played an important role in recognising that prisoners are part of the wider community, and public health can learn from prison health in this instance.            

 

Thank you to Fíona Ní Chinnéide, Executive Director of IPRT for sharing her insights and experience of campaigning for prisoners’ rights during the COVID-19 pandemic. To read the unabridged version of this blog post, please visit the PRILA website.

Suggested citation: 'Ask an Expert: Campaigning for Prisoners’ rights during the COVID-19 pandemic, with Irish Penal Reform Trust' COVID-19 Law and Human Rights Observatory Blog (30 June 2020) http://tcdlaw.blogspot.com/2020/06/ask-expert-campaigning-for-prisoners.html

Return to home page of the COVID-19 Law and Human Rights Observatory.

Ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Particularly Pressing in Pandemic Context

Donna Lyons, Trinity College Dublin

 

Some of the greatest challenges facing humanity are inescapably global in nature. National measures alone cannot adequately address social and economic inequality (no longer exclusively a domestic matter due to the international flow of capital), the plight of refugees, environmental degradation, or pandemics.

 

This blog post argues as follows: (i) by facilitating discussion, cooperation, compromise, and therefore transnational norm development, global platforms are essential for resolving global challenges, (ii) by way of example, State reporting and review by the various international human rights monitoring mechanisms contribute to norm development at the international level, (iii) individual communications processed through the monitoring mechanisms, due to their frequency, enhance norm development more significantly as compared with periodic reviews and since socio-economic rights are particularly engaged in the Covid-19 context, it is essential that States ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and finally, (iv) ratification as a course of action is not a priority for the current Irish government and thus the onus will lie on civil society organisations in Ireland to keep the issue on the agenda over the next 12 months.  

Global platforms essential for the resolution of global challenges

For all of its imperfections, the United Nations created a platform in 1945 for the consideration of issues which have implications beyond borders. A large and complex organisation, its principal organs include the UN Security Council (to which Ireland was elected earlier this month for the period 2021-2022), the UN General Assembly (UNGA), the International Court of Justice (which presides over inter-State cases as opposed to individual applications), and the Secretariat (the head of which is the Secretary-General).

 

In order to develop the argument proposed in this blog post, some background regarding the UN’s structural approach to human rights protection is necessary. The UNGA established the Human Rights Council in 2006 (of which Ireland was a member for the period 2013-2015). The Human Rights Council, which operates within the Office of the High Commissioner for Human Rights (OHCHR), conducts the Universal Periodic Review process (a review of each State’s international human rights obligations on a five-yearly basis) and coordinates the work of Special Rapporteurs. The OHCHR was also created by the UNGA and constitutes part of the UN Secretariat. The head of the OHCHR is the High Commissioner for Human Rights (this position was held by Mary Robinson during 1997-2002). The UNGA adopted the International Covenant for Civil and Political Rights (ICCPR) and the International Covenant for Economic, Social and Cultural Rights (ICESCR) in 1966, both of which came into effect in 1976. The ICCPR and ICESCR are crucial to the issues explored in this blog post and are thus discussed in more detail below. It should be noted that regional approaches to norm development, such as the Council of Europe (see, for example, today’s COE decision on equal pay in Ireland), are extremely important but do not feature in this particular piece.

 

Norm development through State reporting and review

The treaty monitoring mechanism for the ICCPR is the Human Rights Committee, and for the ICESCR is the Committee on Economic, Social and Cultural Rights (CESCR). The treaty bodies are also situated within the OHCHR and their mandates include oversight of periodic reporting by States Parties and the receipt of individual communications.

 

Taking socio-economic rights as an example, due to their particular relevance in the Covid-19 context, if one were to consider the frequency of review of a country’s progress in implementing its obligations with respect to such rights, where that State has ratified the ICESCR but not its Optional Protocol, it becomes clear that such review processes are relatively sporadic. To take Ireland as a case study, this country ratified the ICESCR in 1989 and signed the Optional Protocol in 2012 but has not yet ratified. Ireland was reviewed by the CESCR in its periodic reviews of 2015, 2002, and 1999. In addition, Ireland was reviewed under the Universal Periodic Review process in 2016 and 2011 and by the Special Rapporteur on Extreme Poverty in 2011. Given that the ICESCR came into effect in 1976, this constitutes a total of 6 reviews over a 44 year period. Moreover, the less punctual a State is in submitting its periodic report to the CESCR, the less frequently it will be reviewed under that mechanism (reports to the various treaty monitoring bodies are notoriously late: one example of a report submitted over 20 years late is available here).

 

A review of the operation of the treaty body system itself is due to take place in 2020. One of the proposals historically tabled as a means of reforming the treaty body system is the reduction and streamlining of reporting as between the various human rights mechanisms. While in and of itself this may be a very positive development, it would further reduce the frequency of review of progress on implementation in the field of socio-economic rights.

 

The role of individual communications in norm development

On the other hand, review of individual communications by the treaty bodies increase the opportunities for review of a State’s human rights record, albeit on more niche points.

 

Articles 1 and 2 of the ICCPR’s Optional Protocol (entered into force in 1976 and has 116 States Parties) provide the Human Rights Committee with the mandate to hear communications from individuals within States Parties alleging violations of their rights, where they have exhausted all domestic remedies. Individuals within those jurisdictions which are party to the ICESCR’s Optional Protocol (entered into force in 2013 and has 24 States Parties) may apply to the CESCR regarding alleged violations where they have exhausted all domestic remedies.

 

Ireland ratified the ICCPR and its Optional Protocol in 1989 and the Human Rights Committee has heard numerous individual communications from Irish citizen over the years. Indeed, there is every possibility that should ‘Friends of the Irish Environment’ be unsuccessful in their recent Supreme Court bid, that an application to the Human Rights Committee will follow, given that the Committee issued a significant decision on the right to life as it relates to climate degradation in January of this year.

 

The relatively broad ratification of the Optional Protocol to the ICCPR has had the positive effect of influencing norm development as between State actors in the international system over the past four decades. By contrast, since there are only 24 States Party to the ICESCR’s Optional Protocol, inter-State convergence on the application of the ICESCR is much more limited.

 

This blog post is not concerned with the traditional argument that individual communications improve domestic implementation of treaty, but instead emphasises that the frequency of individual applications leads to a speeding up of international norm development. Periodic reviews (both treaty body and UPR) are simply spaced too far apart to be of great effect in this context. The decisions of the treaty bodies on individual communications are non-binding. However, in my view, direct participation by individuals in the international value system intensifies local understanding and debate on matters of domestic and international concern (while not a point of issue here, this process may reduce the oft-discussed democratic deficit in international law governance). Being a party to the ICESCR Optional Protocol leads to more regular engagement with the treaty body on specific aspects of socio-economic rights protection, and therefore enhanced understanding, engagement with, and discussion of national and transnational policies. 

 

If individuals lose their actions at the highest level in the domestic forum and have an option to argue the matter in an international forum, with other individuals from other countries doing the same, international norms and consensus on matters of international concern start to build from the ground up. In addition, this process leads to greater dialogue at the State and inter-State level, and the possibility of reputational protection through State action in response to international pressure. The more countries that ratify the ICESCR Optional Protocol, the more successful this process will be for norm development in the socio-economic rights context.

Ratification of ICESCR Optional Protocol not a priority for Irish government

There has been no shortage of recommendations by the international mechanisms in relation to Ireland’s failure to ratify the ICESCR Optional Protocol. For example, in its 2015 Concluding Observations on the third periodic report of Ireland, the CESCR encouraged the State to ratify the Optional Protocol; in the 2016 Universal Periodic Review of Ireland, Ireland was advised to ratify the Optional Protocol, and Ireland supported this recommendation; and in the 2011 Report of the UN Special Rapporteur on Extreme Poverty, Ireland was again advised to incorporate the Optional Protocol into domestic law.

 

In announcing the government’s intention to sign in March 2012, Eamon Gilmore noted as follows: ‘I am delighted that Ireland is in a position to support the Optional Protocol and to help strengthen UN human rights protection mechanisms.’ Minister Shatter, as he then was, stated that the government was ‘deeply committed to the protection and promotion’ of human rights. If this was true for the government in situ in 2012, it is certainly does not hold true for today’s government.

 

The 2020 Programme for Government emphasises that ‘membership of the UN is a cornerstone of Irish foreign policy’ and that ‘at a time of ever-more complex global threats, which respect no international boundaries, including climate change and pandemics, only coordinated international action and collaboration will bring about solutions’ and yet, nowhere in the Programme is there any mention of the ICESCR Optional Protocol.

 

Moreover, the Department of Foreign Affairs and Trade (DFAT) published a first draft of its ICESCR Fourth Periodic Report in May 2020. Throughout the 67 pages of text regarding Ireland’s implementation of the ICESCR, there is not a single reference to the Optional Protocol. While UN Guidelines on periodic reporting provide that the process ‘should encourage and facilitate, at the national level, public scrutiny of government policies and constructive engagement with relevant actors of civil society in a spirit of cooperation and mutual respect’ the consultation conducted this year in respect of the first draft was rather narrow. Therefore, the onus will be on civil society to engage with 2020 CESCR periodic reporting process, as well as the upcoming 2021 UPR process, to continue to put pressure on the government to not long-finger ratification any further.

 

Indeed, one of Ireland’s leading foreign policy priorities is the protection of civil society space, so nowhere would it be more appropriate than for Ireland to take full advantage of this space.

 

Once ratification of the Optional Protocol becomes more widespread, it will then be crucial as I have pointed out elsewhere, to provide increased funding for the CESCR to adequately deal with an increased caseload.

Donna Lyons is an Assistant Professor at Trinity College Dublin School of Law and a member of the Covid-19 Law and Human Rights Observatory.

Suggested citation: Donna Lyons, 'Ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Particularly Pressing in Pandemic Context' COVID-19 Law and Human Rights Observatory Blog (29 June 2020) http://tcdlaw.blogspot.com/2020/06/ratification-of-optional-protocol-to.html

Return to home page of the COVID-19 Law and Human Rights Observatory.

COVID-19 and its Implications for Financial Stability in the Eurozone

Alexandros Seretakis, Trinity College Dublin

 

Even before the outbreak of COVID-19, numerous international organizations, including the IMF and leading economists, were warning of a forthcoming crisis in the world economy. The world economy was already vulnerable to the trade war between China and the US and high private debt levels. The COVID-19 pandemic has forced governments to impose severe lockdowns with economic activity grinding to a halt. The European Commission predicts that the Eurozone’s GDP will contract by more than 7.5%, the worst recession in the Eurozone’s history. In contrast, during the financial crisis, the recession in the Eurozone did not exceed -4.5 % of GDP.

 

During the past decade the Eurozone has witnessed two major crises, the 2008 financial crisis and the Eurozone sovereign debt crisis. The 2008 financial crisis, which started in the US, was caused by excessive risk-taking and the irresponsible behaviour of financial institutions. The 2008 crisis was predominantly a liquidity crisis, which led to the near collapse of the financial system. The financial crisis set the stage for the sovereign debt crisis in the Eurozone. The Eurozone debt crisis saw numerous Eurozone governments, including Ireland, unable to access government debt markets due to investor fears regarding the ability of these countries to repay their debt. The current pandemic driven crisis in the Eurozone economy is markedly different. Nevertheless, it has the potential to morph into a new financial or sovereign debt crisis for the Eurozone.

 

In contrast to the financial crisis and the sovereign debt crisis, the COVID-19 pandemic is a crisis engulfing the real economy. The lockdown measures have resulted in both a supply and a demand shock to the economy. For instance, the closure of factories and retail shops, which can be seen as a supply shock, has led to a surge in unemployment. The increase in unemployment has dented consumer income and spending power, a demand shock. The crisis has not yet spread to the financial system or sovereigns. Unlike the 2008 financial crisis, there is an abundance of liquidity in the financial system in part due to the quantitative easing programmes launched by central banks, including the ECB, during the preceding years. In addition, the new regulations introduced in the aftermath of the financial crisis have bolstered the resilience and loss-absorbing capacity of the banking sector and the financial system more generally.

 

As a result, with the support of Eurozone governments, which have extended guarantees and loans to struggling firms, banks are currently able to withstand losses in their loan portfolios. Furthermore, the decisive intervention of the ECB in the government bonds market has resulted in a drop in the funding costs of Eurozone governments. In 18 March 2020 and while Italy was witnessing a rise in its borrowing costs, the ECB announced the launch of the so-called Pandemic Emergency Purchase Programme. The programme involves the purchase of private and public sector securities with the overall amount of purchases reaching 750 billion euro. The launch of the programme contributed to the sharp decrease of government bond yields and has prevented a repeat of the sovereign debt crisis.

 

Nevertheless, a second wave of coronavirus will result in a prolonged recession with severe consequences for the financial sector. A surge in bankruptcies across the economy will lead to an explosion of non-performing loans. It should be noted that certain Eurozone countries, including Greece and Italy, are still grappling with elevated levels of non-performing loans. Furthermore, in case of a second wave, the support of governments to struggling firms and households will be limited due to lack of fiscal space. Even assuming that there will not be a second wave or that the second wave will be mild, the public expenditures of governments to support their economies and the severe recession will increase the already high government debt levels of Eurozone countries. For instance, it is estimated that the government debt level of Italy will reach 160% of GDP, of Portugal 130% GDP while that of Greece will surpass 180%. The possibility of investors reassessing the ability of Eurozone countries to repay their debt should not be underestimated.  

Overall, the Eurozone economy is unlikely to recover rapidly to its pre-pandemic levels. The danger exists that the Eurozone will be mired in another financial or sovereign debt crisis. As a result, common European initiatives of a fiscal nature, such as the so-called Next Generation EU recovery plan proposed by the European Commission, are of outmost importance in dealing with the consequences of the crisis. The recovery plan includes the creation of a 560 billion euro fund to support specified investments in EU Member States through grants and loans. The creation of the fund has been opposed by four Member States, Sweden, Finland, Austria and Denmark, which insist that the financial support should come in the form of loans and with more stringent conditions attached to it. Provided that the recovery fund involves predominantly grants to Member States, these investments will allow the European economy to rapidly bounce back from the pandemic crisis. However, if the fund involves predominantly loans, then these loans will only add to the already high debt burden of European countries hurting thus their long-term growth potential.

 

Alexandros Seretakis is an assistant professor in Trinity College Dublin and a member of the  COVID-19 Law and Human Rights Observatory

 

Suggested citation: Alexandros Seretakis, ‘COVID-19 and its Implications for Financial Stability in the Eurozone’ COVID-19 Law and Human Rights Observatory Blog (22 June 2020) http://tcdlaw.blogspot.com/2020/06/covid-19-and-its-implications-for.html

Return to home page of the COVID-19 Law and Human Rights Observatory.

COVID-19’s Silver Lining - Housing, the Constitution, and the Scope for Post-Crisis Reform

Rachael Walsh, Trinity College Dublin

 

An unexpected upshot of the COVID-19 crisis has been a positive impact on Ireland’s housing and homelessness crisis. There has been an overall reduction in homelessness, with for example numbers in Dublin at their lowest since 2013. Some of these gains were accidental. For example, the tourism shutdown resulted in a surge in new properties available for rent in Central Dublin. However, the crisis also prompted legislative intervention to protect tenants.

 

One such intervention was the introduction of a freeze on rent increases for three months beginning on 27^th March 2020 (the date of commencement of the Emergency Measures in the Public Interest (COVID-19) Act 2020). That freeze applies to all forms of rental accommodation, including for example student accommodation and accommodation shared with a landlord. Valid notices for rent increases that were due to take effect in this period do not take effect. Increases can be applied upon expiry of the freeze but not in respect of time captured by the freeze.

 

The Housing Minister has indicated that an extension beyond the initial three-month period is likely. However, the criteria for such an extension may not be easy to satisfy as the phased re-opening of the country continues. The Minister has the power to request that the Government make such an extension upon consultation with the Minister for Health and the Minister for Public Expenditure and Reform, provided that an extension is in the public interest having regard to: (i) the threat to public health presented by COVID-19; (ii) the highly contagious nature of that disease, and (iii) the need to restrict the movement of persons in order to prevent the spread of the disease among the population. Notably absent from these criteria is any mention of hardship flowing from the COVID-19 crisis, for example unaffordability of rent due to unemployment. As movement restrictions are eased, it may become less easy to justify an extension of the rent freeze to prevent forced movement flowing from evictions due to non-payment of rent.

The COVID-19 freeze on rent increases is striking because the Government and the leading opposition party in the Oireachtas prior to the 2020 General Election (Fianna Fáil) consistently argued that freezing rents would be an unconstitutional response to the housing and homelessness crisis, indicating that they had legal advice to that effect.

 

Doubts about the constitutionality of rent freezes can be traced to two decisions of the Supreme Court: Blake v AG (1982) and Re Article 26 and the Housing (Private Rented Dwellings) Bill 1981 (1983).  

 

Blake concerned the constitutionality of Parts II and IV of the Rent Restrictions Act 1960 as amended by the Rent Restrictions (Amendment) Act 1967 and the Landlord and Tenant (Amendment) Act 1971. The Supreme Court held that this rent control scheme was unconstitutional. Relevant factors included: the mandatory nature of the legislation; its unlimited duration; its impact on contractual arrangements; the lack of provision for review; the absence of compensation, and the potentially onerous repair obligations for landlords. Critically, the Supreme Court stated that the application of the Act was not connected to the relative needs and means of landlords and tenants, nor to ‘any established social necessity’.

             

Following Blake, the legislature introduced a new Bill, the Housing (Private Rented Dwellings) Bill, 1981. It provided that rent for controlled dwellings should be either agreed or fixed by the District Court on essentially a market value basis. The move to market rent was to be phased in over a four year period. The Supreme Court held that it was unconstitutional because it deferred payment of market value rent. The Court did acknowledge that its decision could cause some tenants hardship, but it regarded such hardship as appropriately remedied by the State rather than private landlords.

 

What do these decisions suggest in respect of the constitutionality of the COVID-19 rent freeze and the prospects for post-crisis housing reform aimed at retaining gains made during the crisis? Part of the reasoning of the Court in both Blake and Private Rented Dwellings was that discrete groups cannot be constitutionally required to bear burdens in the public interest above and beyond those imposed through general taxation. Apart from one notable decision, that logic has not generally been applied by the Supreme Court as a basis for striking down legislation in subsequent decisions. Therefore, there is every possibility that a procedurally robust rent control scheme could pass constitutional muster. Indeed, rent control is already provided for under the Residential Tenancies Act 2004 (as amended) through restrictions on rent increases in designated rent pressure zones.

 

However, neither Blake nor Private Rented Dwellings have been overruled. Nonetheless, if the Supreme Court was inclined to apply those decisions as authorities for a strong anti-redistribution position rooted in the Constitution’s property rights guarantees, the COVID-19 rent freeze can be readily distinguished from the previously invalidated rent control schemes.

 

First, the freeze involves a deferral of rent increases. It does not, like the scheme in Blake, suppress rents. Rent increases that would otherwise have been imposed during the freeze will be triggered once the freeze is terminated. Rent remains payable for the duration of the freeze, although without any increases.

 

Second, the temporary nature of the current rent freeze is crucial. The open-ended nature of the restrictions imposed on landlords was a key factor in Blake. The deferral of payment of rent increases involved in the current restrictions is also much shorter than the four-year phasing-in of market rents that troubled the Supreme Court in Private Rented Dwellings.

 

Third, there is a clear and compelling social need for the current rent freeze, whereas the courts struggled to identify such a rationale for the earlier schemes.

 

Fourth, the freeze applies to all rented properties, which reduces the selectivity of its application and accordingly the narrowness of its targeting - all landlords suffer the same burdens. While there is clearly a ‘singling out’ of a social group in the public interest, that group is large and apparently well-positioned to defend its interests politically. This is significant as the Supreme Court in a 2005 decision suggested that the property rights of vulnerable, politically weak groups should receive particular legal protection.

 

Overall, therefore, the COVID-19 rent freeze is constitutionally sound. It remains to be seen whether the positive impact of that rent freeze on homelessness will generate greater willingness on the part of Fine Gael and Fianna Fáil (who look set to be the two major parties in the next government) to introduce further rent control measures.

 

The end of the current freeze will see some tenants facing immediate rent increases in circumstances where unemployment may still be high. The Programme for Government identifies this challenge, undertaking to examine the need for further measures to assist tenants with the impact of the COVID-19 crisis in light of research from the ESRI. Housing campaigners have already called for up to a two-year extension to the current freeze.

 

There is scope within the existing constitutional framework to introduce additional measures to retain and build on the inroads made into the housing and homelessness crisis during the COVID-19 crisis. The proposed Programme for Government suggests that a lasting effect of the crisis may be more ambitious legislative reform that tests the limits of that scope.

Rachael Walsh is an assistant professor in Trinity College Dublin and a member of the COVID-19 Law and Human Rights Observatory

Suggested citation: Rachael  Walsh, 'COVID-19’s Silver Lining - Housing, the Constitution, and the Scope for Post-Crisis Reform' COVID-19 Law and Human Rights Blog (19 June 2020) http://tcdlaw.blogspot.com/2020/06/covid-19s-silver-lining-housing.html

Return to home page of the COVID-19 Law and Human Rights Observatory.

Phase 2 Easing of Ireland’s Lockdown Restrictions – Amendments

Oran Doyle, Trinity College Dublin

 

On 13 June 2020, the Minister for Health made SI 209/2020 Health Act 1947 (Section 31A -Temporary Restrictions) (Covid-19) (No.2) (Amendment) Regulations 2020. Notification of the making of these Regulations was given in Iris Oifigiúil on 16 June 2020.  These make a small number of amendments to the Phase 2 Regulations that I analysed here. The Observatory has posted a new consolidation of the Regulations here.

This phrase of restrictions is structured around three prohibitions: the restriction of movement for exercise, social, or recreational purposes; the restriction of events; the restriction of public access to certain businesses or services. The most significant change in these amendments concerns this last category. Occupiers and managers of all retail outlets are no longer prohibited from allowing access to the public. For the week from 8 to 15 June, this prohibition had applied to some retail outlets but not others.

There are a few minor changes in relation to sporting facilities. Outdoor gymnasiums may now be made accessible to the public. Indoor gymnasiums remain closed to the public, but may be opened insofar as necessary for the training of elite sportspeople and athletes. Sports stadiums, campuses, sports training facilities may now additionally be accessible to the public where they are available free of charge for informal and recreational use by members of the public and where their operation is necessary for the purposes of an outdoor sporting or recreational event in accordance with regulation 6 (i.e. with a maximum of 15 people).

The Department of Health has now helpfully established a website that gathers together statutory instruments related to the COVID-19 pandemic. This appears to solve the issue, previously raised in this blog and elsewhere, of the time lag between regulations coming into legal effect and being published.

The website also produces a helpful explanation of what the Regulations do. It is always difficult to provide a brief synopsis of the law in language that is both correct and accessible to lay people. However, some aspects of the explanation may be misleading. For instance, the website states:

We can travel within a 20 kilometre radius of our homes or anywhere within our county for social and recreational purposes. This includes travel and leisure.

We can gather for social or recreational purposes in other people’s homes, subject to a maximum of 6 people at such a gathering.

We can exercise outdoors with others or gather outdoors with others for social and recreational purposes, subject to a maximum of 15 people.

People may travel outside of these geographical limits for visits to vulnerable persons.

A casual reader might glean from this guide that the key movement restriction in the Regulations is the distance limit:  you may travel 20km or within your own county if it is for social or recreational purposes, but further travel is permitted to visit a vulnerable person. Such a reading would be incorrect, however. The key restriction in the Regulations is on movement for social or recreational purposes. In those circumstances, the distance restrictions apply. But if you are travelling for any other purposes—work, shopping, politics, religion, protest, educational, cultural, etc—no distance limits apply.

In a previous post, I discussed the rule of law issues that arose from vague criminal offences in the original lockdown restrictions. A different but related rule of law concern arises from official guidance that, however unintentionally, may lead people to believe that they are subject to more onerous legal restrictions than is actually the case. In the midst of the pandemic, there are sound public health reasons to encourage people not to exercise the full freedom of movement permitted to them by law. But it would be preferable to be clear about the boundary between legal prohibition and advice.

 

Oran Doyle is professor in law at Trinity College Dublin and a visiting faculty member at the University of Pennsylvania Carey Law School. He is the Director of the COVID-19 Law and Human Rights Observatory.

Suggested citation: Oran Doyle, 'Phase 2 Easing of Ireland’s Lockdown Restrictions – Amendments' (17 June 2020) http://tcdlaw.blogspot.com/2020/06/phase-2-easing-of-irelands-lockdown_17.html

Return to home page of the COVID-19 Law and Human Rights Observatory.

 

The information provided in this document is not legal advice or professional advice of any other kind, and should not be considered to be such, or relied or acted upon in that regard. If you need legal or other professional advice, you should consult a suitably qualified person.

Corporate Social Responsibility in a Time of Crisis

Blanaid Clarke, Trinity College Dublin

 

How are companies responding to the Covid-19 Crisis? Are we seeing a new more compassionate, more altruistic approach or merely business as usual with an element of virtue signalling thrown in for good measure?

One of the key questions dominating corporate governance over the last hundred years is: in whose interests should a company be run? The shareholder primacy norm which advocates that companies operate in the interests of shareholders is generally attributed to Milton Friedman who fifty years ago described “the social responsibility of business” as being to increase its profits. A broader stakeholder theory by contrast has suggested that companies should be operated in the interests of a wider group of stakeholders including employees, customers, suppliers, local communities and society at large. Even before the current crisis, a change in the rhetoric of business leaders was discernible. Some commentators have attributed this to political dysfunction stemming from both the Global Financial Crisis and governmental failures to address societal issues such as climate change, poverty and inequality. In January, Larry Fink, CEO of BlackRock Inc., the world's largest asset manager, drew the obvious connection between social responsibility and shareholder return explaining:

“a company cannot achieve long-term profits without embracing purpose and considering the needs of a broad range of stakeholders…. actions that damage society will catch up with a company and destroy shareholder value. By contrast, a strong sense of purpose and a commitment to stakeholders helps a company connect more deeply to its customers and adjust to the changing demands of society. Ultimately, purpose is the engine of long-term profitability.”

The Davos Manifesto 2020 launched the same month at the World Economic Forum promised “a better kind of capitalism”. This set of ethical principles described the purpose of a company as being “to engage all its stakeholders in shared and sustained value creation.” Companies, especially multinationals, were asked to take responsibility to work with governments and civil society to address big global challenges. Less than a week after Davos, such a global challenge emerged as the WHO declared a coronavirus outbreak to be a Public Health Emergency of International Concern and subsequently a pandemic. Faced with a health crisis and an economic crisis giving rise to a global recession of a scale unseen since the Great Depression, companies have been asked to step up and reconnect with society. As might be expected, some have behaved better than others as a recent list by the Financial Times of “business saints and sinners” demonstrates. The latter includes Sports Direct who initially sought to keep stores open by categorising them as “essential” and Amazon who dismissed whistleblowers who had raised concerns about the safety of warehouse employees’ and Covid-19 risks.

Let us focus on the activities of companies which have responded in what we might consider a “responsible” manner and delve a little deeper into the nature of their responses. Their actions might be classified in three ways.

 

The first category of actions might be best described as “social activism”. This would include the donation of €2.4m by AIB to Trinity College Dublin's Covid-19 immunology or the raising of €350,000 in donations by aircraft leasing company Avolon to fund a cargo shipment of personal protective equipment (PPE). These were significant and commendable contributions. Whilst consistent with the stated values of the two entities, these actions fell outside their core business operations which did not change. In this way, these actions are distinguishable from the other two categories of actions.

 

When examining the measures taken by companies as part of their business operations, we can identify a second category of actions which benefit both shareholders and a wider group of stakeholders. These actions would not be inconsistent with the shareholder primacy norm. They would include actions which lead to reputational gain or increase stakeholder loyalty or well-being. Examples include the retention by many companies of employees on the payroll or the early payment by companies such as Heineken and L’Oreal of small and medium-sized suppliers to enable them to survive the Covid-19 Crisis. These actions would be in keeping with the enlightened shareholder value norm envisaged by Fink and involve companies promoting the wellbeing of both investors and stakeholders.

 

The third category of actions involve those taken as part of their business operations to protect stakeholders for the sake of stakeholders’ relevant interests in response to what Parkinson described as “a supposed moral imperative that may conflict with profit maximisation”. These actions involve “uncompensatable costs” which do not improve shareholders’ returns. Barbour, the waxed jacket manufacturer which repurposed an existing production line to make PPE free of charge for the UK National Health Service would be an example. For that line, the company fundamentally changed the way it did its business. In addition, although Barbour’s action resulted in a positive reputational impact in a way actions in the previous categories also might, this was not the purpose of the action and it did not equate to the cost involved. It acted in this way because the board took the decision that this was the right thing to do and consistent with its corporate purpose. It should be noted that if such an alternative moral imperative exists, it needs to be identified at the outset and publicised in order to allow investors commit to it in advance and to allow managers make business decisions informed by such a purpose. The UK Corporate Governance Code, which applies to Irish and UK listed companies, asks boards to identify their companies “purpose, values and strategy” and to embed them in their behaviour. Particularly for certain sectors such as banking, insurance and, I would argue, big technology where there is a strong and obvious public interest dimension, a “social licence” or social responsibility emerges very clearly and should be part of their wider purpose.

 

While it was heartening to see many companies stepping up to the mark - taking responsibility beyond their own immediate financial successes and living their values in a real and demonstrable manner – it is too early to determine if this is an enduring trend. One hopes so because there many other significant societal challenges which will require the co-operation of corporate players, governments and civil society. Climate change is of course the most obvious. As many commentators have noted, the Covid-19 Crisis presents an opportunity to rebuild our economies and to make better choices in so doing. However, it is clear that there will be challenges along the way, most immediately competing demands to get the economy moving as quickly and cheaply as possible. The costs or burdens perceived to flow from environmental standards and regulation might be framed by the short-sighted as an unaffordable luxury. Another concern is that social responsibility might overshadow environmental responsibility in the immediate aftermath of the Covid-19 Crisis. The necessary current focus on the S component of Environmental Social Governance (ESG) goals may divert attention from the E component. This would be unfortunate as all elements are equally important in the long run.

 

The Covid-19 Crisis has demonstrated that companies of all sizes can be affected by a crisis and that they are not self-reliant entities. They depend to greater or lesser extents on Governmental policies and support. In responding to climate change, companies play a fundamental role through the manner in which they conduct their own businesses, their support for the sustainable practices of their customers and suppliers and through their influence in shaping public policy. In the Covid-19 Crisis, many companies have demonstrated their ability and willingness to exercise their social licences and a reversion to business as usual would be unacceptable.

 

Blanaid Clarke is McCann FitzGerald Chair of Corporate Law, Trinity College Dublin, and a member of the COVID-19 Law and Human Rights Observatory

 

Suggested citation: Blanaid Clarke, ‘Corporate Social Responsibility in a Time of Crisis’ COVID-19 Law and Human Rights Blog (17 June 2020) http://tcdlaw.blogspot.com/2020/06/corporate-social-responsibility-in-time.html

 

Return to home page of the COVID-19 Law and Human Rights Observatory.