The Oireachtas and Mandatory Face Coverings

Conor White, University of Cambridge

 

On Monday 13 July face masks became mandatory on public transport by statutory instrument. How can a minister introduce such a significant change to daily life without consulting the Oireachtas? This blogpost considers regulating mandatory face coverings through Covid-19 legislation, the Minister’s ability to legislate without the Oireachtas and the Irish legislature’s low profile in the process.

 

Delegated legislation

 

Recent restrictions come from powers granted to the Minster for Health under the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 first initiated in the Dáil on 18 March and signed into law on 20 March. This has created section 31A of the Health Act 1947 permitting the Minister to make regulations to stop the spread of Covid-19.

 

The government’s power to legislate without the Oireachtas is constrained by Article 15.2 of the Constitution. The courts have consistently followed the Supreme Court’s decision in 1980 in Cityview Press v An Chomhairle Oiliúna that the Oireachtas may delegate its power if it is “a mere giving effect to principles and policies which are contained in the statute itself”. Section 31A contains an array of principles and policies to reflect the risks of Covid-19. The legislation nonetheless delegates a wide range of powers, which is reflected in the face coverings regulations.

 

Face coverings

 

Mandatory face coverings were not debated in the Oireachtas in March. The Dáil first debated masks on public transport on 23 April and NPHET did not advise for their use on public transport until 1 May. So how can the Minister issue such regulations?

 

The legislative basis for mandatory masks may be section 31A(1)(f). It permits the Minister to require owners and occupiers of premises to introduce certain safeguards. Section 31A(16) includes in its definition of “premises” a “ship or other vessel, aircraft, railway carriage or other vehicle”. Public transport vehicles are not expressly included, so the Minister may instead be relying on section 31A(1)(i) which enables “any other measures that the Minister considers necessary”. This is an indisputably broad power and enables the Minister to take other actions consistent with the principles and policies of the section but not envisaged when the Act was passed.

 

The Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings on Public Transport) Regulations 2020 prohibit a person from travelling on public transport without a face covering from 13 July without reasonable excuse. The prohibition does not apply to drivers behind a partition or screen and under 13s. There is a non-exhaustive list of reasonable excuses.

 

The regulation relies on section 31A(13) to designate any officer, employee or   agent of the transport operators and the National Transport Authority a “relevant person” to aid with enforcement. Failure to comply with their request to wear a face covering is an offence subject to a relevant person determining if the passenger has a reasonable excuse. It is punishable by a fine up to €2,500 or up to six months’ imprisonment, or both.

 

The Minister does not need to consult particularly widely before making regulations; he must consult other relevant ministers and may consult any other person he considers appropriate. The NTA has said that it and government departments were involved in drafting the regulation on face coverings

 

There is no role for Oireachtas members here, which may seem strange as it is now a criminal offence not to comply with a bus driver’s instruction to wear a mask, for example. It would have been impossible to imagine such a law several months ago.

 

Section 31A regulations need not be published in advance, or indeed online, since the Statutory Instruments Act 1947 only requires notice in Iris Oifigiúil and the Stationery Office to make copies available. Delays between the signing of regulations and publication have been persistent over the past few months. New Zealand’s Covid-19 legislation in comparison requires online publication 48 hours in advance, except where there is public health urgency. For the first time with Irish Covid-19 regulations, the mask regulations were published three days in advance.

 

Oireachtas scrutiny

 

The government’s freedom to adopt appropriate measures is not an inherently bad state of affairs and reflects the administrative state’s need to respond to the virus. The primary supervision mechanism remains with the courts. The role for the Houses of the Oireachtas is quite limited. (Note the “Houses of the Oireachtas” as distinct from the “Oireachtas”, which includes the President.)

 

The key provision which enables the Houses of the Oireachtas to review section 31A regulations is section 5(5) of the 1947 Act which provides:

 

Every regulation […] shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

 

In the UK parliament, similar provisions are called negative procedures. The alternative is an affirmative procedure which requires parliamentary approval of a draft regulation. There is no overarching Irish legislation or constitutional requirement for either, or even to be included at all. (See Hogan J in Bederev in the Court of Appeal: paragraphs 71–73.) In Irish legislation, negative procedures are included far more frequently than affirmative ones.

 

Despite their near-ubiquity in format since the Free State, negative procedures have received very little attention and are seldom invoked. The persistent majorities of government parties in the Dáil and Seanad are presumably why.

 

The wording appears to derive from the UK’s Public Trustee Act 1906 and has been adopted consistently by Irish drafters since 1923. It is quite a limited oversight, constrained by time, the power merely to annul rather than amend, and the guarantee of validity prior to any annulment. Perhaps it would be better to have more constructive provisions not time-limited that have more scope than simply the nuclear option of annulment.

 

Sunset clauses

 

Sunset clauses are commonly used to curb delegated powers. Individual regulations here do not automatically expire, though every regulation under section 31A so far has included an expiry date. The face covering regulations expire on 5 October. In contrast, the regulations on face coverings for England and Wales expire after 28 days unless approved by each House of Parliament. New Zealand’s Covid-19 regulations automatically expire after 60 days without parliamentary approval. These appear to be sensible constraints, adding a layer of democratic oversight absent from Irish legislation by mandating parliamentary engagement with such regulations.

 

The 2020 Act contains a sunset clause for the Act itself which was inserted after Dáil debate. Section 2 of the Bill (when introduced) contained an automatic expiry for the Act of 9 May. The Minister for Health would have been able to extend this date by order, subject to a negative procedure. Following a series of proposed amendments and subsequently Fine Gael’s approval, Section 2 of the Act instead includes a sunset clause of 9 November (unless both Houses of the Oireachtas pass an affirmative resolution).

 

The Dáil was clearly uncomfortable with executive discretion to extend the Act beyond 9 May. The compromise agreed is strange because the Houses of the Oireachtas arguably had greater power prior to the amendment: if on 9 May the Minister had decided to extend the Act to, say, 9 November, either House would have had the power to annul it. Notwithstanding the ability to ordinarily amend legislation, neither house may stop the Minister’s power to make regulations until 9 November.

 

Improving oversight

 

The experience with face coverings and restrictions generally gives rise to some ways to develop a more coherent system of legislative input and review over wide delegations of power, especially if they include criminal sanctions

 

Firstly, delays in publishing regulations should not be possible and negative procedures should not be limited in time. Secondly, pre-publication of draft regulations to relevant Oireachtas committees as far in advance as possible should be explored. It could contribute to the drafting process and add better scope for democratic oversight. The role of committees is especially important as the government controls most of Oireachtas time. Thirdly, sunset clauses and mandatory Oireachtas debates automatically required by statute where delegated legislation significantly affects individuals’ rights or obligations would balance government urgency and parliamentary scrutiny.

 

Final thoughts

Developing properly considered mechanisms for delegated legislation will be important in the years ahead with the new government facing ongoing health and economic crises, compounded by a lost six months of legislating. 2020 has had a record low number of Acts – only two in the first six months of the year. The number of Statutory Instruments is down slightly too; there were 55 fewer this year compared to the average for the first six months of the past ten years. I argue that it is now appropriate to engage with the neglected area of oversight of delegated powers and delegated legislation.

Conor White is an LLM student at the University of Cambridge and a recent BCL graduate from University College Dublin.

Suggested citation: Conor White, 'The Oireachtas and Mandatory Face Coverings' COVID-19 Law and Human Rights Observatory Blog (13 July 2020) http://tcdlaw.blogspot.com/2020/07/the-oireachtas-and-mandatory-face.html

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