Monday, June 15, 2020

A State in Emergency without a State of Emergency

Joelle Grogan, Middlesex University


As Ireland enters Phase 2, there seems to be good reasons to be positive about the country’s response to the pandemic. The easy to understand Roadmap for Reopening Society and Business has rightly been commended for the clarity with which it communicates what citizens can and cannot do, as well as presenting a clear path through to the end of the health emergency. The efficacy of the social-distancing measures require a high level of individual compliance which is grounded in both trust in the legitimacy of measures, and the clarity with which those measures have been communicated. The success of governance based on trust and communication tracks globally: state policies based on legal certainty, transparency, clear communication, and urgent (re)action have strongly correlated with the most positive outcomes, and the earliest lifting of restrictions.

However, while communication is essential to the efficacy of state action, it is not necessarily determinative of the legality of state action. The basis for the regulation of Ireland’s response to the coronavirus is shaky at best: a caretaker government relying on continued cross-party support to implement the widest delegation of sweeping powers to introduce the most restrictive measures on individual liberty in the history of the state, all with limited parliamentary scrutiny and judicial oversight. This post places Ireland’s response in a global context, while highlighting some causes for concern and best practice for legal reform.


A State in Emergency without a State of Emergency

Worldwide, the restrictions placed on individual liberty, movement, assembly, worship, education, and commercial activity - as well as on elections, parliaments and the courts - are the most restrictive in contemporary history. A majority of countries globally have declared a state of emergency in response to the pandemic, in order to make urgent use of emergency powers. Many of these states have also derogated from international human rights treaties, acknowledging the extent to which individual rights have been restricted. The main concern when states do not declare a state of emergency, but take action on the basis that there is one, is that it opens the potential for the abuse of power, which has been distressingly evidenced elsewhere in the EU. Due to the urgency of action needed in emergency conditions, it is understood that executive measures do not undergo the same level of scrutiny or stages of legislative approval.

Ireland has not declared a state of emergency under Article 28.3.3°. (Arguably it could not have done so as a condition is that the State is in a ‘time of war or armed rebellion’.) In common with other states which have not declared a state of emergency, Ireland has instead relied on ordinary legislation. Reliance on Health Acts to provide the legal basis for sweeping powers for detention, quarantine, and lockdown can create legal and democratic hazards. For example, the legislation may be outdated (eg India’s Epidemic Diseases Act 1897) and require amendment is an amount of time which does not guarantee proper scrutiny (eg only 12 hours in Denmark). The Irish caretaker government quickly introduced two acts to amend the Health Act 1947, and to delegate sweeping powers, unprecedented in scale and scope, to the Minister for Health to restrict movement and assembly and close businesses and schools.  The powers delegated to the Minister under the Acts are concerning in their scope and lack of detail: of primary concern is Section 10(i) Health Act 1947 which extends powers the Health Minister to enact ‘any other measures the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19.’ The subjective discretion given to the Minister to decide what they ‘consider necessary’, can be contrasted with the objective concerns for the potential uncertainty in reasonable excuse for individuals to leave their homes under the lockdown Regulations.

There is a strong contrast between the clarity and certainty with which the Irish lockdown measures have been communicated to the public, and the distinct lack of public accountability as to how those measures have promulgated. As convincingly argued on this blog by David Kenny, there has been a distinct lack of scrutiny on not only the measures adopted but also the degree of influence of government advisors in setting the design, and conditions for the lockdown measures. Limiting or suspending much of the work of the Oireachtas on the basis of questionable constitutional objections, particularly when the entire world (and their grandmother) seems to now be on Zoom, is not rationally justifiable even in the context of a pandemic. Many states have adopted provisions to allow for virtual assembly and voting, or enacted modifications to procedures, in order to allow institutions to function as normally as possible. Even where the protection of public health can justify a limitation on political accountability, there must be a robust and heightened commitment to public rationality – and by this I mean the clear and transparent communication of the rationale for government action, substantiated with public debate and external engagement.


Where there is limited Political Accountability, there must be an increase in Public Rationality

Once the immediate crisis has passed, there will be an opportunity for Ireland, along with all states and international bodies, to review their constitutional and legal architecture as well as health and crisis response preparedness. A first point for Ireland will be whether it should declare a state of emergency when there is a global health emergency, which could trigger an obligation to derogate from the ECHR and engage with rights debates.

Any amendment to current constitutional provisions would require more than the mere addition of ‘and pandemics’ to the conditions for the declaration of a state of emergency, which is comparatively underdefined in the Irish Constitution. A rigorous debate on the conditions and limitations of power, as well as the requisite degree of oversight from both the Oireachtas and the courts would be needed. In the design of a ‘state of emergency’, there are clear principles which should guide all use of emergency power. The delegation of power must be time-limited, and clear as to legitimate scope for its use. The use of power must be legally prescribed and proportionate to that legitimate aim. On this point, guidance could be taken from Article 15 European Convention on Human Rights. In the use of emergency powers, there must be meaningful oversight by an independent body, as well as the possibility for review for those subject to the law.

One reality, however, is that despite the Irish electorate’s familiarity with constitutional referenda, it is unlikely that we will witness a referendum on a state of emergency – particularly where the current effectiveness of measures has shown the workability (or work around) of ordinary regulation where there is cross-party support, and high levels of public trust and compliance. However, compliance is not, and should not be, an excuse for complacence. The COVID-19 crisis has highlighted endemic socio-economic disparities. The pandemic and the measures taken in response have disproportionately affected vulnerable members of society: not only where the virus itself impacted the older population and immunocompromised individuals, but as lockdown measures have most negatively impacted prisoners, refugees and migrants, as well as low-income and casual workers, a majority of which are women. These are issues for legal and policy reform, and must be addressed.

Where medical intervention is still limited by the lack of a vaccine, mitigating the impact of COVID-19 will continue to rely on personal social responsibility and a coordinated national policy. Public trust is essential to compliance. This trust is strengthened by accountable and transparent governance and ongoing legal reform and policy development. The best practice evidenced globally is external engagement as it is essential to guarantee public scrutiny, particularly where there is limited capacity for political scrutiny, but also to improve the quality of the law and public policy.

On this point, this new blog should be commended for providing a forum for such engagement and debate.

Joelle Grogan is a Senior Lecturer in Law at Middlesex University London, and Convenor of the COVID-19 and States of Emergency Symposium.

Suggested citation: Joelle Grogan, 'A State in Emergency without a State of Emergency' COVID-19 Law and Human Rights Observatory Blog (15 June 2020)

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


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