Phase 2 Easing of Ireland’s Lockdown Restrictions

Oran Doyle, Trinity College Dublin

 

Ireland has moved into phase 2 of easing the lockdown. Much attention has been paid to the easing of movement restrictions and the wider opening of shops, but the new Regulations allow for considerably more activity than the Government has presented in its roadmap for Phase 2. Most notably, they appear to bring forward the reopening of places of worship to phase 2; allow indoor cultural, entertainment, community, or educational events with up to 15 people; and allow indoor events for commercial, work, or religious reasons with unlimited numbers. They also cast some doubt on whether it is lawful to operate shops attached to petrol stations.

On 8 June 2020, the Minister for Health made SI 206/2020 Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (No 2) Regulations 2020. In this blogpost, I identify some concerns with how the regulations were published. I then outline how the regulations have a very different structure from the old regulations, before analysing the restrictions imposed by the regulations.

 

This blogpost analyses what is legally permitted and prohibited in order to inform public understanding and debate. There may be strong public and personal health reasons not to engage in activity even if it is lawful.

 

Making and publishing the regulations

On Monday 8 June, the regulations were made and placed on the online Irish Statute Book. But they were neither listed nor searchable on the website. Conor White drew them to my attention, having guessed the url. Iris Oifigiúil of Tuesday 9 June contains notice of the making of the Regulations.

 

The old Regulations are revoked. The new Regulations’ penal provisions, however, can be criminally enforced only if notice of their making has been made in Iris Oifigiúil or if reasonable steps have been taken ‘for the purpose of bringing the purport of the said instrument to the notice of the public or of persons likely to be affected by it or of the defendant.’ Placing the statutory instrument on a government website but requiring users to guess the url scarcely counts as ‘reasonable steps.’ Given how the regulations depart from government guidance documents, that guidance also scarcely counts as ‘reasonable steps.’ It is therefore questionable whether the new regulations can be enforced in respect of any activity that occurred on 8 June 2020.

 

New structure

The old Regulations imposed general criminal prohibitions on movement and on the holding of events, before identifying exceptions to those restrictions. Both types of restriction were deemed to be ‘penal provisions’. Section 31A of the Health Act 1947 provides (a) that breach of a penal provision is a criminal offence, and (b) that the gardaí may direct a person to comply with a penal provision, failure to comply with such a direction also being a criminal offence.

The new Regulations take the opposite approach of prohibiting (a) certain types of movement, (b) the holding of certain types of event, and (c) public access into certain types of premises where businesses are conducted or services provided. Only (b) and (c) are stated to be penal provisions.

The Irish Council for Civil Liberties has welcomed this more permissive approach as a return to policing by consent.

 

Movement restrictions (non-penal)

Regulation 5(1) prohibits you from engaging or otherwise participating—outside your home—in activities that are solely for social or recreational purposes, including leisure or holiday purposes, or for the purposes of exercise. This is subject to specified exemptions in regulations 5(2)-(4).

Regulation 5(2) allows you to undertake exercise, recreational, or social activities within 20km of your home or within the county in which your home is situated. Exercise must be outdoor; social and recreational activities can take place indoors. Outdoor activities can involve no more than 15 people; indoor activities no more than six people.

Regulation 5(3) allows you to visit the residence of a vulnerable person for social or recreational purposes, but subject again to a limit of 6 people. A ‘vulnerable person’ is defined as (a) a person who normally requires assistance carrying out her daily activities, or (b) a person who requires such assistance because she is particularly susceptible to the health risk posed by COVID-19 or is not in a position to leave her residence due to reasons related to the spread of COVID-19 or otherwise, or (c) a child. Category (b) would seem to include anyone over the age of 70. As there is no distance limit in regulation 5(3), it follows that you may lawfully visit elderly relatives anywhere in the country, if they require assistance in their daily activities.

Regulation 5(4) allows for training for elite sportspeople.

Importantly, movement for all other purposes is not prohibited. It is permissible, for example, to be outside your home for cultural, entertainment, community, business, religious, and educational purposes, even if that activity could also be said to serve a social or recreational purpose. No distance limits apply in these cases.

Finally, it must be emphasised that breach of the movement restrictions is not a criminal offence; nor can the gardaí direct you to comply with any of the movement restrictions. We all have good reason to help limit the spread of COVID-19; if we all--or most of us--observe the movement restrictions, we will gain a collective benefit. But they are not criminally enforceable.

 

Event restrictions (penal)

Regulation 6(1) prohibits the organisation of events for cultural, entertainment, recreational, sporting, social, community or educational reasons, unless the maximum numbers of people do not exceed 15. An educational event must be held in a school, university, higher education facility, crèche or other registered childcare facility. There is no requirement that any of these events be held outside. It is unclear why 15 people may attend cultural, entertainment, community or educational events indoors while regulation 5 limits social and recreational indoor gatherings to six people.

 

Events of other types are not prohibited. Section 31A(16) of the Health Act 1947 defines event as ‘a gathering of persons, whether the gathering is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, religious or other reasons…’ It follows, given section 19 of the Interpretation Act 2005, that events for commercial, work, or religious reasons are not prohibited by the regulations and may lawfully be held indoors without any restriction on numbers--unless access to the premises is unlawful under regulation 7.

The Regulations perhaps reflect a view that 'events' can only occur outside, although I cannot find any basis for that view. If an event is necessarily an outdoors activity, however, then Regulation 6 is even more permissive since indoor 'non-events' are not directly regulated at all, although they may be indirectly limited by the movement restrictions in Regulation 5 and the public access restrictions in Regulation 7. 

 

Public access restrictions (penal)

Regulation 7 imposes an obligation, which may be criminally enforced, on the occupier, manager, or other person in charge of certain premises to take all reasonable steps to ensure that members of the public are not permitted, or otherwise granted, access to those premises. The premises that must remain closed to the public are mostly listed in schedule 2. But the full list depends on a convoluted interaction between schedule 1 and 2. What follows is not for the faint-hearted.

 

Schedule 1 lists ‘permitted outlets,’ largely replicating the 'essential retail outlets' of schedule 1 in the old regulations but here functioning in a different way. In the old regulations, leaving your home to go to an essential retail outlet was a reasonable excuse; and schedule 1 listed the essential retail outlets. In the new regulations, ‘retail outlets that are not permitted outlets’ must remain closed to the public; and schedule 1 lists the permitted outlets.

 

Schedule 1 of the new regulations differs from schedule 1 of the old regulations in two important ways. First, it includes ‘retail or wholesale outlets that can be accessed by pedestrians directly from a street entrance or carpark’. Allowing public access to all these outlets is considerably broader than what was permitted under the old regulations. It is one of the most significant changes as we move from phase 1 to phase 2.

 

Second, the new Schedule 1 no longer lists ‘fuel service stations’. It follows that if a fuel service station is a ‘retail outlet,’ it must be closed to the public unless it can be ‘accessed by pedestrians directly from a street entrance or carpark.’ Read strictly, this would seem to require the closure of shops attached to petrol stations, at least where pedestrians are required to walk through the forecourt of the petrol station in order to access the shop. This makes little sense, however, and a court would likely—if it arose—take a more purposive reading and allow the entire fuel service station to remain open. This undesirable uncertainty could have been avoided by simply retaining ‘fuel service stations’ in schedule 1.

 

Two final points about regulation 7 should be made. First, some ostensibly permitted events cannot be held in premises accessible to the public: for example, entertainment events cannot be held in theatres while cultural events cannot be held in museums or art galleries. Second, religious premises are not mentioned in Schedule 2, reinforcing the conclusion above that religious services, indoors and outdoors, are no longer prohibited.

Conclusion

It seems unlikely that the Government intended to ease the lockdown to the extent achieved by these Regulations. Loopholes may have emerged due to convoluted drafting and the move away from the old approach of comprehensive prohibitions subject to specified exceptions. The new approach better respects personal autonomy and the rule of law, but requires considerably more careful drafting if the public health objectives of the Regulations are to be secured.

Michael McNamara TD, chair of the Dáil Special Committee on COVID19 Response, reports that he requested the Government to share draft regulations with the committee but the Government declined. Such scrutiny would have helped to identify problems before they were made law, thereby strengthening the state's efforts to manage the virus on all our behalf. Given that the easing of lockdown restrictions is--rightly--anticipated three weeks in advance, there can be little difficulty in sharing the draft laws that will achieve that even if the final policy decisions have not been made. It can only be hoped that the Government will adopt a more collaborative approach in future. 

 

I am grateful to David Kenny and Conor White for comments in relation to this post. Any errors are my own.

 

Dr 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’ COVID-19 Law and Human Rights Observatory Blog (9 June 2020) http://tcdlaw.blogspot.com/2020/06/phase-2-easing-of-irelands-lockdown.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.