Temporary Restrictions Regulations (No.5) – The Dublin Lockdown

Oran Doyle

Conor White

 

Introduction

The Minister for Health made the Temporary Restrictions (No. 5) Regulations (SI 352/2020) on Saturday 19 September. They were published on the Department of Health website on Sunday 20 September. They came into force on Saturday 19 September, with the exception of more restrictive regulations for funerals and wedding receptions in Dublin, which come into force on Monday 21 September. Formal notification of the Regulations will be given in Iris Oifigiúil on Tuesday 22 September. The Regulations remain in force until Saturday 10 October. The Observatory’s consolidation of the Regulations is available here.

Part 1 of the Regulations deals with common measures. Part 2 of the Regulations deals with restrictions outside Dublin. Part 3 of the Regulations deals with restrictions in Dublin. Part 4 provides a legal basis for the collection of data by business owners and managers in relation to patrons at pubs and restaurants, by the gardaí, and by HSE contract tracers.

 

Measures outside Dublin

Events in private dwellings

Regulation 5 allows you to organise a social or recreational event in your private dwelling, subject to certain limitations. An unlimited number of people from one other household can attend; or no more than six people in total from two or three other households can attend. There are some more detailed rules on how you calculate the number of people. As we pointed out in Thursday’s blog, ‘private dwelling’ is not defined in the Regulations. Given the definition of ‘dwelling’ in the Health Act 1947 itself, the restrictions in Regulation 6 appear only to apply the structure that is the dwelling, not any gardens.

This is not deemed to be a penal provision.

 

Events, sporting events, and training events

Regulation 6 allows events for social, recreational, exercise, cultural, entertainment or community reasons to be organised, subject to a limit of 50 for indoor events of 50, and 100 for outdoor events. But if it is in a stadium, grandstand, or arena that could ordinarily hold 5,000 people or more, the outdoor event can be attended by 200 people. This is deemed to be a penal provision.

The same numbers apply for sporting events, except that ‘necessary persons’ are not included in the numbers. There is a lengthy definition of ‘necessary persons’ that essentially seeks to capture all those directly involved in the sporting event; the numbers limitation applies—in effect—to the spectators.

Regulation 9 allows training events to be organised, provided that those attending are organised into groups of no more than six for indoor events and no more than 15 for outdoor events. Members of one group must not be permitted to ‘commingle, associate with, or otherwise come into physical contact’ with members of any other group. These restrictions do not apply to training events for elite sportspeople.

The restrictions on sporting and training events are not deemed to be penal provisions.

 

Wedding receptions

Regulation 7 allows wedding receptions to be organised in premises other than private dwellings, subject to a limit of 50 people, not including those attending in a professional capacity, in the course of their employment, or in fulfilment of a contract for services. This is not deemed to be a penal provision.

 

Pubs and restaurants

Although the Government has decided to allow ‘wet pubs’ to open outside Dublin from Monday 21 September, this is not yet allowed in the Regulations.

Regulation 10 requires the owners, occupiers, and managers of businesses that sell intoxicating liquor, as well as nightclubs and casinos, not to permit members of the public access to those premises. There is an exception for businesses selling intoxicating liquor, where a substantial meal is ordered alongside the intoxicating liquor.

Regulation 12 requires that the owners, occupiers, and managers must make a record of the time and date of entry and name and telephone number of the lead person of each group that enters, as well as a record of the substantial meal ordered by each person. These records must be retained for a period of 28 days and made available to gardaí. The records, with the exception of the meal records, must also be made available to HSE contact tracers.

Businesses that sell food or non-alcoholic beverages cannot, by reason of Regulation 11, allow people to consume those food or beverages on the premises after 11.30pm. This ensures that people cannot move from a pub to, say, a fast food outlet.

All of these provisions are deemed to be penal provisions.

The lead person in a group or a sole patron must provide the business manager with her name and telephone number, if requested to do so. This is not deemed to be a penal provision.

 

Dublin measures

Travel

Regulation 13 prohibits travel into and out of Dublin in a manner similar to that which applied to Laois, Offaly, and Kildare during their local lockdowns. This does not apply to people who travel through Dublin and do not exit their vehicle or other mode of transport, other than to refuel or for an emergency. It also does not apply to those who travel to Dublin for the purposes of travelling to another state, which would seem to cover Dublin airport, Dublin port, and Connolly station for trains to Northern Ireland.

Travel into or out of Dublin is permitted only where there is a reasonable excuse. Regulation 13(4) provides a lengthy list of reasonable excuses, but these are without prejudice to the generality of ‘reasonable excuse’. In recognition of Dublin’s status as the capital city, there is specific allowance for office-holders under the Constitution or statute, members of either House of the Oireachtas, local authorities, and the European Parliament. No express allowance is made for members of the European Commission. There is also allowance for the provision of services essential to the functioning of diplomatic missions and consular posts in Dublin.

These Regulations go further than the previous localised lockdown Regulations, however, in prohibiting Dubliners from travelling not just to other counties but also to other states. It is now unlawful for Dubliners to leave the State without a reasonable excuse.

The Observatory has previously addressed the vagueness difficulties that arise from the general category of ‘reasonable excuse’.

Regulation 13 is not deemed to be a penal provision.

 

Events in private dwellings

Regulation 14 sets out these restrictions. They differ from the rest of the country in only allowing six persons from one other household to attend an event in a private dwelling. This is not deemed to be a penal provision.

As with the previous Regulations analysed on this blog last Thursday, the Government guidance on social and family gatherings in Dublin combines this legal prohibition with a broader prohibition:

Social and family gatherings

In your home or garden

A maximum of 6 people from 1 other household can visit your home.

Other settings outside your home or garden

No social or family gatherings should take place in other settings.

Read literally, the final sentence here means that even the same family could not leave their house together. On any reading, it purports to prohibit outdoor meetings with members of any other household. There is no legal provision to this effect.

 

Events, sporting events, and training events

Regulation 15 provides that social, recreational, exercise, cultural, entertainment or community events can only be organised outdoors, with a limit of 15 people. This is a penal provision.

Regulation 17 limits sporting events to elite sportspeople only. Regulation 18 provides that training events for non-elite sportspeople can only happen outside with groups of no more than 15 people and no intermingling between groups. No legal limits apply to training events for elite sportspeople. These Regulations are not penal provisions.

 

Weddings, funerals, and religious events

Weddings may be organised, subject to a limit of 25 people attending. This is not deemed to be a penal provision.

Regulation 15(3) imposes a limit of 25 people attending funerals, excluding the priest. This is not deemed to be a penal provision.

The oddity here, however, is that there is no restriction on the organisation of religious events, other than funerals and weddings. The general prohibition on events applies only to ‘social, recreational, exercise, cultural, entertainment or community events’. 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 the ‘relevant events’ restricted by the Regulations cannot include religious events. We first raised this interpretative issue on 8 June 2020. In its submission to the Oireachtas, the Observatory suggested that purported restrictions of religious worship provided a further example of eliding the distinction between law and guidance. But it now seems equally likely that the Government intends and believes that the Regulations do prohibit religious worship, subject to tailored exceptions for weddings and funerals. Such a belief is mistaken.

Pubs, restaurants, and other business/services

Regulation 19(1) requires owners, occupiers, and managers to ensure that members of the public are not permitted access to premises on which certain types of business and services are carried out or provided. A lengthy list is specified in Schedule 2, essentially covering places of entertainment and socialising. Paragraph 16 lists outlets selling food or beverages whether on a retail or wholesale basis and whether in a non-specialised or specialised outlet, subject to some exceptions. The most significant exception here is the selling of food or beverages on a takeaway basis or for consumption off the premises. This is what led to the closing of restaurants and pubs.

Regulation 19(3) allows the on-site consumption of food and beverages in two circumstances: (i) an outdoor area limited to 15 people; and (ii) in a hotel for residents. The same provisions in terms of substantial meal and record-keeping apply in these two contexts as apply generally outside Dublin, set out above.

 

Oran Doyle is the Director of the COVID-19 Law and Human Rights Observatory.

Conor White holds a BCL from University College Dublin and recently completed an LLM at the University of Cambridge.

 

Suggested citation: Oran Doyle and Conor White, ‘Temporary Restrictions Regulations (No.5) – The Dublin Lockdown’ COVID-19 Law and Human Rights Observatory Blog (21 September 2020) https://tcdlaw.blogspot.com/2020/09/temporary-restrictions-regulations-no5.html

Special Measures for Dublin: Legal Restrictions and Government Announcements

        Oran Doyle and David Kenny, Trinity College Dublin

 

Introduction

The COVID situation has deteriorated in Dublin. The Government announced a tightening of restrictions on Tuesday, and it is expected that further restrictions will be announced for the capital today, following advicefrom NPHET. Much attention in the last few days has focused on how the measures for Dublin depart from the just-published five-level Resilience and Recovery Plan. In terms of the Plan, Dublin will likely move from a mixture of levels 2 and 3, to a mixture of levels 3 and 4.

In this blogpost, however, we turn to a different issue—frequently raised before on this blog and in our submission to the Oireachtas COVID-19 Response Committee last week—namely the divergence between the announcement of restrictive measures and what is actually prohibited by law.

 

Measures announced by Government

On Tuesday 15 September, the Government published the following announcement:

Given concern over the incidence of COVID-19 in Dublin, and based on NPHET’s recommendations, Cabinet has agreed that the following additional measures will apply in the county:

1.     no more than two households should meet at any given time. Socialising can continue at indoor or outdoor public venues, but only with people from your own household or one other household, and in groups of maximum 6 people

2.     pubs and bars not serving food should remain closed beyond 21 September

3.     the number of people who can attend sports matches and events is capped at 100, irrespective of venue size

4.     higher and third level institutions should consider enhanced protective measures

5.     those living in Dublin should be encouraged to limit travel outside the region, and only meet 1 other household when outside the county

For ease of reference, we have numbered the bullet-points in the Government’s press release.

 

Regulatory framework

The current Temporary Restrictions (No. 4) Regulations came into operation on 3 September 2020. They were initially to remain in force until Monday 14 September, but have now been subject to several extension. On Sunday 13 September, they were extended to Wednesday 16 September. On that date, they were further extended to Monday 5 October. On Wednesday, Regulations were passed passing temporary amendments that will also last until Monday 5 October. Some—but not all—of these temporary amendments will relate to special measures for Dublin. If it is later desired to continue the Temporary Restrictions (No. 4) Regulations beyond Monday 5 October, it will be necessary to extend both the Regulations themselves and the temporary amendments. We publish a consolidation of the Regulations here.

 

Convergence between Government announcement and regulations

Bullet-points (4) and (5) in the Government announcement are framed in terms of advice. Unsurprisingly, these have not been replicated in the Regulations. Bullet-point (2) in the announcement did not require any immediate legal measure to implement. Regulation 11 of the Temporary Restrictions (No. 4) Regulations already prohibits the opening of ‘wet pubs’. That prohibition is now extended until Monday 5 October. Further amendments will be required to allow wet pubs open in other parts of the country on Monday 21 September as originally planned.

Bullet-point (3) is implemented in amendments to Regulation 9, allowing outdoor sports events to be held outside Dublin with up to 200 people in stadiums, grandstands, etc that ordinarily could hold more than 5,000 people. No similar allowance is made for sporting events in Dublin. In all other settings, the maximum number of spectators attending sports events across the country is 50 indoors and 100 outdoors.

 

Divergence between Government announcement and regulations

It is in relation to bullet-point (1) that significant divergence emerges between the Regulations and the Government announcement. As presented by the Government, this measure prohibits more than two households meeting at any time, whether indoors or outdoors, and with a maximum of six people. Part of this is included in the regulations and is a legal requirement; a large part is not.

Regulation 5A only applies to events in private dwellings. ‘Private dwelling’ is not defined in the Regulations, but the definition of ‘dwelling’ in the primary statute, which refers to a dwelling including a part of a house, strongly implies that the dwelling is the physical structure in which people live. It seems to follow that there is no legal prohibition on events in, for example, the gardens of private dwellings. Still less so is there any prohibition on more than one household gathering in public places outside.

The second way in which the Regulations diverge from the Government announcement is that no numerical limit is placed on the number of people from two households who may gather in a private dwelling.

Moreover, Regulation 5A is not deemed to be a penal provision, meaning that breach of the provision—although unlawful—cannot lead to criminal punishment, nor to enforcement powers for the Gardaí. This was notably termed a “civil offence”, though this is not a term with established legal meaning.  

 

Implications of divergence

We in the Observatory have raised, time and again, the problems with this approach. The rule of law requires that people know and understand what the law is. Something stopping short of the law, rising only to the status of advice or guidance, should never be presented as if it is a legal requirement. But it is difficult to read bullet-point (1) as an announcement of anything other than legal prohibitions. This impression is then enhanced by the fact that some of the measures contained in that bullet-point are now implemented through legal prohibition, while some are entirely absent from the regulations. It is hard, without skill in compiling and reading secondary legislation, to know what the law truly requires, and so citizens will inevitably be confused as to what the law is and what they are legally required to do.  

This has happened since the start of the pandemic, when there was severe confusion as to whether cocooning for over 70s was advice or a legal requirement. It was possible this was just a communications error; such errors are understandable given the complexity of the task of responding to the pandemic. But as the pandemic response has matured, these elisions of law and advice have not abated. If this is still a communications problem, it is less forgivable now. But it is also possible that it is a deliberate strategy. It appears that the government might be happy to allow people mistakenly believe that they are legally prohibited from doing certain things when they are not. We think using uncertainty around the law to try to achieve compliance is not only a poor strategy—as it creates confusion and potentially undermines the status of both law and advice—but is a misuse of the law and state power, one that we should no longer tolerate.

Oran Doyle and David Kenny are members of the COVID-19 Law and Human Rights Observatory.

Suggested citation: Oran Doyle and David Kenny, 'Special Measures for Dublin: Legal Restrictions and Government Announcements' COVID-19 Law and Human Rights Observatory Blog (18th September 2020) https://tcdlaw.blogspot.com/2020/09/special-measures-for-dublin-legal.html

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Business as Usual? The Common Travel Area in the Era of COVID-19

    Colin Murray, University of Newcastle 

Last month, The Economist’s Charlemagne column warned of the threat that the COVID-19 pandemic posed to the long-term operation of the Schengen passport-free travel zone, as intermittent border closures accompanied new waves of the pandemic. The column noted, however, that these arrangements actually played very little role in the day-to-day lives of Europe’s populace, with only 2 million across the continent working and living on different sides of a border. It concluded that efforts to mitigate Europe’s internal borders for people mattered most Brussel’s ‘well-paid polyglots’, who ‘flit across the continent constantly, for work and pleasure.’ The view from Ireland is very different. Not only does the near century-old border remain a defining issue in politics North and South, but it is one that has become especially acute since the Brexit referendum outcome in 2016. 

Prior to the 1990s, an ‘all-island economy’, one of the hallmark phrases of Brexit negotiations, was virtually non-existent. Even though Common Travel Area (CTA) arrangements have permitted passport-free travel across the land border since partition, few people regularly crossed the militarised border for work at the height of the Northern Ireland conflict. Only the twin stimuli of the development of the European Single Market and the Belfast/Good Friday Agreement 1998 changed this situation. When travel across the land border was last subject to severe restriction, during the Foot-and-Mouth crisis of 2001, those arrangements were nascent. Twenty years on, thousands of livelihoods now depend upon the openness of the border.    

Unlike Schengen, there has been no restriction to travel across the land border in response to COVID-19. This fact might be taken to suggest, on a superficial reading at least, that the CTA is proving particularly stable even in the face of the pandemic. Ireland, however, has imposed quarantine restrictions on travellers entering the country directly from Great Britain (causing one unionist politician to fulminate that this amounts to a ‘a contradiction of the common travel area’); it is the land border which remains unaffected. Indeed, that border has been so destabilised by Brexit that any thought of interrupting passport-free travel across it is very difficult for politicians in Ireland to contemplate. In this instance, “business as usual” in the midst of the pandemic is a mark of deep dysfunction. 

Co-operation and coordination between the Irish Government and Northern Ireland Executive has not always been prominent during the pandemic. Although the two Health Ministers agreed a Memorandum of Understanding early in the crisis, most work has been at the level of officials (coordinated by the two Chief Medical Officers) rather than ministers. Indeed, Sinn Fein’s strong performance in the 2020 general election in Ireland has led to several barbed comments from ministers in Ireland about Northern Ireland’s record during the pandemic, which have hardly been conducive to cooperation. When, at the end of July, the North-South Ministerial Council met for the first time in over three years, the Taoiseach Micheál Martin could only make a vague commitment ‘to try and keep working together to optimum level of co-operation north and south’.

One of the most immediate points of divergence between the two administrations has been in terms of travel, with Ireland maintaining stricter international travel quarantine arrangements for a wider range of countries than Northern Ireland. In particular, Northern Ireland has resisted suggestions of imposing quarantine restrictions upon travellers from Great Britain, even when levels of community transmission have been higher in Great Britain than on the island of Ireland. For the Irish Government, this has created a Belfast loophole in its travel restrictions, in that as a result of the lack of restrictions at the land border travellers from Great Britain are able move into Ireland through Northern Ireland without being subject to quarantine requirements.  

This loophole, however, works both ways. Northern Ireland’s Coronavirus (International Travel) Regulationsimpose 14-day self-isolation requirements on travellers who enter Northern Ireland having been outside the CTA in the last 14 days (with exceptions). Whereas the operation of these rules at arrivals Northern Ireland’s two airports is straightforward, the same cannot be said for arrivals at airports in Ireland. There remains no workable system of information exchange between the relevant authorities. The Taoiseach’s response has, to date, been to shrug off these issues, asserting that ‘we must have a reality check of what is possible and what is not possible’.

The saga of Phil Hogan’s unceremonious resignation as EU Trade Commissioner for breaches of Ireland’s regulations having travelled from Belgium makes an interesting case in point; some of his breaches of the regulations would not have been breaches had he landed in Belfast and not Dublin. Perhaps this means that we are only one cause célèbre from these arrangements to come under sustained pressure (perhaps foreshadowed by grumblings about lockdown rules not being enforceable against cross-border travellers in April 2020). 

The spectre of Brexit, however, looms large over the lack of meaningful progress on information-sharing arrangements. The UK Government remains confident that at the end of the transition/implementation period on 31 December 2020, it will continue to ‘work closely with Ireland to secure the external CTA border, including data sharing and operational co-operation’. Such information sharing, however, remains entirely dependant on the UK striking a future-relationship deal with the EU which includes shared data protection standards. In short, if information sharing is proving difficult to operationalise under the umbrella of EU law, it will be impossible to achieve if provision is not made for its replacement. 

This is not some simplistic story of the Irish Government advancing the idea of an “invisible” border in the course of Brexit negotiations and finding itself hoisted on its own petard in its response to COVID-19. The openness of the border was a vital element in the everyday lives of many on the island before the pandemic, and became so once again in the months after the respective lock-downs were eased. The Irish Government did not invent the importance of this openness, and to date both parts of the island have been similarly affected by the pandemic. In the months ahead, however, business as usual might become increasingly difficult to sustain. Any divergences in the infection rate in Northern Ireland and Ireland as winter approaches, or moral panics sparked by outbreaks which are suspected to have resulted from cross-border movements on the island, will require the lack of restrictions at the land border to be justified North and South. The limits to cross-border cooperation to date do not augur well for a coordinated response to such challenges, and a no-deal Brexit could halt efforts to enhance cross-border information sharing.      

Colin Murray is a Reader in Public Law at the University of Newcastle. 

Suggested citation: Colin Murray, 'Business as Usual? The Common Travel Area in the Era of COVID-19' COVID-19 Law and Human Rights Observatory Blog (17th September 2020) https://tcdlaw.blogspot.com/2020/09/business-as-usual-common-travel-area-in.html

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

‘I did not break any law’— Police enforcement of the lockdown

         Senator Ivana Bacik, Trinity College Dublin

Updated September 14th

What is a ‘Lockdown’?

Over the past year, governments worldwide have used ‘lockdown’ strategies to suppress transmission of Covid-19. But this has meant different things in different countries. Some authoritarian regimes have imposed tough restrictions on public movement, with penal sanctions attached. But in Ireland - as in most Western democracies - ‘lockdown’ has involved a combination of ‘soft’ guidelines without sanctions for breach; and ‘hard’ rules carrying the force of criminal law. 

However, the status of specific rules and consequences for their breach have often been unclear. For example, many assumed wrongly that over-70s were subject to sanctions if they broke the ‘cocooning’ rule during the early stages of lockdown. But this was just a public health guideline, unlike the rules prohibiting movement outside two and five kilometre zones over the same period, breach of which did carry criminal penalties. 

The blurred line between different types of lockdown rule was memorably highlighted in August 2020 by former EU Commissioner Phil Hogan. In his resignation speech following disclosures about his movements around Ireland upon return from Brussels while ostensibly in quarantine, he stated that, while he may have breached public health guidelines, ‘I did not break any law.’ 

So which lockdown restrictions are public health ‘guidelines’; and which are criminal ‘laws’? This blog seeks to answer that question, in examining the legal basis for ‘lockdown’, Irish-style.

Statutory Basis for Lockdown Rules

The principal source of authority for the conversion of ‘public health guidelines’ into criminal justice provisions is the Health Act 1947, enacted at a very different time to deal with another highly contagious disease then devastating Irish society – namely TB. Section 31 of that Act provides the government with broad power to make regulations ‘for preventing the spread of infectious disease’. On 20 February 2020, over a week before Ireland’s first recorded infection, the 1947 Act was first invoked in the Covid-19 context, when the coronavirus was added by Health Minister Simon Harris to the list of infectious diseases covered by the Act through SI 23/2020. 

On 29 February 2020, the first Covid-19 infection in this jurisdiction was recorded; and the first death on 11 March, the same date that the World Health Organisation declared a pandemic. The next day, Taoiseach Leo Varadkar announced the closure of all schools, colleges and creches, followed on 24 March by a series of wider movement restrictions and closures. Lockdown was in place – but it took further time to provide a clear statutory basis for the new measures.

Just prior to the announcement, emergency legislation had been passed over two days (19-20 March) to amend the 1947 Act. Section 10 in Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 inserts two new sections 31A and 31B into the earlier Act. Given the draconian nature of these provisions, Part 3 is subject to a sunset clause in section 2, and is due to lapse after 9 November 2020 unless extended by resolutions of both Dáil and Seanad.

The new section 31A empowers the Health Minister to make regulations ‘for preventing, limiting, minimising or slowing spread of Covid-19’, including regulations imposing restrictions upon movements. Breach of any regulation stated to be a penal provision carries a sanction of up to six months imprisonment, or a fine of up to €2,500. Gardaí are empowered to direct persons to take action to address any breach, and to arrest any person who fails to comply with such a direction. 

Section 31B provides for the Minister to designate certain areas or regions as ‘affected areas’ due to ‘high risk of importation of infection or contamination with Covid-19’; and section 11 provides for the detention of persons to prevent spread of infection in particular exceptional circumstances. 

It was not until 7 April that the Minister signed SI 120/2020, declaring the entire State to be an ‘affected area’ under section 31B, and thereby providing full statutory underpinning, including penal sanctions, for breach of certain rules and restrictive measures already announced. On 8 April, the Minister provided for additional police powers in SI 121/2020. Through more than 20 further Statutory Instruments introduced since then under section 31A, a series of other penal provisions was created. Breach of these provisions will attract the criminal sanction of a six month prison sentence and a €2,500 fine; they include rules on the wearing of face coverings on public transport; restriction of movement in certain counties; and the requirement that passengers returning to Ireland from abroad must complete a ‘passenger locator form’ and provide specified information under SI 181/2020 and subsequent regulations. 

Several penal provisions have been revoked or made subject to time limits; they have generally secured public support, although concerns about potential over-reach have been expressed by the Irish Council for Civil Liberties (ICCL). A police union survey conducted in June also reported that gardaí were confused as to how to enforce certain of these measures. Detailed data on police enforcement are provided through regular Covid-19 statistics updates and a series of Policing Authority reports. The sixth such report (17 July 2020) discloses that between 8 April and 11 July, police exercised their Health Act powers a total of 353 times. Use of these powers rose sharply during the early weeks of lockdown and then declined, particularly following the easing of certain movement restrictions on 8 June. The report also noted that anti-spit hoods had been used 86 times by police during lockdown; this usage has been strongly criticised by the ICCL as breaching human rights. 

Despite the easing of the general lockdown in June, legislation providing additional policing powers was introduced in August 2020 due to concerns over increasing virus transmission rates. The Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 provides gardai with new means to enforce rules restricting operation of licensed premises; and enables the making of closure orders in respect of such premises; like the earlier legislation, it will lapse from 9 November 2020 unless extended by Oireachtas resolutions.* 

Controversy surrounded the introduction of this legislation and the signing of further regulations by the Minister for Health (SI 326/2020),* with initial reports that the government also intended to criminalise attendance at gatherings of more than six people in private houses; however this extension of penalties was deemed too harsh. Some Cabinet sources suggested that enforcement of rules restricting private gatherings would be carried out through the introduction of a ‘civil offence’, until it was pointed out that there is no such thing in Irish law.

Instead, the regulations, due to lapse after 14 September 2020, provide for a set of ‘restrictions’ on gatherings, events and business, most of which are not stated to be ‘penal provisions’ and which therefore carry no provision for enforcement or sanction.*  

Conclusion

Throughout the months of lockdown, public goodwill and a strong sense of communal solidarity have been vital in maintaining compliance with public health rules imposing restrictions on public movement and activity in Ireland. 

Such rules, when initially announced by government, often carried no penalty for breach but were later translated into criminal provisions through the adoption of regulations by the Health Minister under section 31A of the Health Act 1947. Many such penal provisions have now lapsed; some are or may be re-introduced through regulations restricting movement in particular counties or regions, as with the temporary local lockdowns imposed on Counties Laois, Offaly and Kildare during August. 

Section 31A itself is due to lapse on 9 November, unless renewed by the Oireachtas. Given the far-reaching scope of the section, concerns remain about potential abuse of garda powers; but much about pandemic policing has been widely praised, for example the introduction of Operation Faoiseamh, the garda strategy for tackling increased incidence of domestic violence during lockdown.

Many ‘lockdown’ rules remaining in place are thus best described as public health guidelines carrying no penal sanction; such as the requirement that persons returning from abroad must ‘restrict their movements’ (unless coming from countries on a very limited ‘green list’). Where persons do not comply with these guidelines, they are ‘breaking no law’. 

By contrast, those who break the rules around wearing of face masks on public transport, in shops and other settings are breaking the law, subject to a penalty of six months imprisonment or a €2,500 fine. Similarly, under the most recent legislation, licensed premises face severe sanction - including immediate closure orders - if they operate in breach of the rules. But those who visit private homes in breach of current guidance limiting numbers to six persons (under SI 326/2020 Regulation 5)* are not subject to criminal sanction, even where house parties involve very large numbers – although the gardai do retain pre-existing non-Covid powers to deal with rowdy gatherings under the Criminal Justice (Public Order) Act 1994. 

It is no wonder that individual gardaí – and individual citizens - may be confused as to the extent of enforcement powers and the availability of criminal sanctions. Indeed, serious concerns about lack of clarity on the attachment of penal sanction to public health guidelines were raised by a range of speakers at hearings conducted on 9 September 2020 by the Oireachtas Special Committee on Covid-19 Response. But one thing is clear.* Ultimately, since lockdown rules were first announced internationally, experience in Ireland and elsewhere has shown that compliance is more effectively achieved through soft mechanisms like consent, cooperation, and a spirit of solidarity, rather than through the blunt instrument of the criminal law.

 

*Points added after passage of Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 on 10 September 2020.

Ivana Bacik LL.B., LL.M., B.L., F.T.C.D. has been sitting Senator for Dublin University since 2007. She has practised as a barrister before the Special Criminal Court; and as a Senator has participated in Oireachtas debates on various aspects of the State's COVID-19 response.

Suggested citation: Ivana Bacik, ‘‘'I did not break any law’— Police enforcement of the lockdown' COVID-19 Law and Human Rights Observatory Blog (9 September 2020) https://tcdlaw.blogspot.com/2020/09/i-did-not-break-any-law-police.html

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

COVID-19, Powers of Entry, and the Constitutional Protection for the Dwelling

Rachael Walsh, Trinity College Dublin

There has been extensive discussion recently about the constitutionality of powers of entry as a response to increasing COVID-19 case numbers, in particular those linked to gatherings in bars, restaurants, and private houses. On August 31^st, the Government initiated the Criminal Justice (Enforcement Powers) (COVID-19) Bill 2020 in Dáil Éireann to expand the powers of An Garda Siochána to deal with restaurants and bars that fail to comply with public health regulations, including through entry into premises and the issuing of closure orders. On the same day, the Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (No. 4) Regulations 2020 came into operation. Regulation 5 provides:

5. (1) A person shall not organise, or cause to be organised, an event to be held in a private dwelling other than in accordance with paragraph (2).

(2) A person may organise, or cause to be organised, an event to be held in a private dwelling for social or recreational reasons where the person takes all reasonable steps to ensure that the persons attending, or proposed to attend, the event (for whatever reason) -

.                 (a)  subject to paragraph (3), do not exceed 6 in number, and 


.                 (b)  reside in no more than 3 different households, not including the private dwelling. 


(3) For the purposes of paragraph (2), in reckoning the number of persons at an event, gathering or assembly in a private dwelling, or in reckoning the number of households in which persons at such an event, gathering or assembly reside -

.                 (a)  subject to subparagraph (b), an applicable person whose place of residence is the private dwelling shall be excluded, and 


.                 (b)  a person who is not ordinarily resident in the State, regardless of his or her place of residence, shall be included. 


No penal offence is created in the regulations in respect of this provision, nor do the regulations set out any other enforcement mechanism. The Government was apparently influenced by concerns about constitutionality in deciding not to increase the powers of Gardaí to enter private dwellings. Instead, it indicated that it would introduce a civil offence of non-compliance with guidelines in respect of numbers of persons permitted to gather in private homes, although what such a civil offence might entail is not clear.

Article 40.5 of the Constitution, which provides ‘[t]he dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law’, is primarily of significance as a control on entries into and searches of dwellings by State authorities, as well as seizures of property from dwellings in the course of such entries and searches. Its core function is to require lawful authority for non-consensual entry into dwellings by public authorities. However, Article 40.5 has been applied by the Irish courts in some civil law contexts, such as planning law and tort law, overlapping at times with applications of Article 8 of the European Convention on Human Rights, which guarantees a right to respect for one’s home.

 

Taken together, these lines of judicial decisions treat Article 40.5 as a privacy guarantee, protecting a private sphere against State interference, not just for homeowners but for all individuals in their place of dwelling regardless of the legal status of their occupancy and for their invited guests. However, the courts have not elaborated upon the nature or extent of the privacy that they regard as constitutionally guaranteed, in particular on the degree to which Article 40.5 protects the dwelling against incursions that have a legal basis and are procedurally fair. Significantly, the protection in Article 40.5 has been held not to prevent the criminalisation of activities occurring within the dwelling – any protected private sphere is not immune from legal control.

Considered against this backdrop, are concerns about the constitutionality of powers of entry into residential properties that might be conferred on Gardaí to assist in dealing with the COVID-19 crisis justified? This is an important question in light of the statement of the general secretary of the Association of Garda Sergeants and Inspectors (AGSI) this week that Gardaí do not have the power to enter private dwellings. Do constitutionality concerns extend to commercial premises like pubs and restaurants?

Where a power of entry into a dwelling requires a warrant, the Supreme Court has held that the procedure for the issuing of any warrant must be independent – i.e. not determined by an individual involved in the relevant investigation. Practically, this requirement presents a significant barrier to designing an effective power of entry in respect of the COVID-19 crisis given the likely time-lag that would be involved if Gardaí were required to obtain a warrant from some authorised person independent of the investigation to deal with a gathering that apparently breached public health regulations. However, the power to seek a warrant, if granted, might encourage voluntary termination of gatherings – Gardaí arriving on the scene of a gathering might, by indicating their intention to seek a warrant, be better able to encourage voluntary dispersal of guests. Furthermore, a power to enter on foot of a warrant would allow Gardaí to tackle persistent anti-social behaviour of the kind that has been reported during the COVID–19 crisis. As such, the ‘warrant for entry’ route is not entirely useless as a means of tackling non-compliant gatherings, although its greatest effects would likely be in deterrence.

Nonetheless, the practical problems with obtaining a warrant have prompted suggestions that a general power of entry for Gardaí to enforce public health regulations is required. Such general powers, which allow Gardaí to enter dwellings without a warrant, already exist, most notably in Section 6(2) of the Criminal Law Act 1997, which confers a power of entry and search of dwellings for the purpose of arresting a person in connection with an arrestable offence. The validity of statutory provisions permitting authorised officers to enter dwellings without warrants was accepted in principle by Murphy J in Deighan v Hearne (High Court, 1986), where he cited Abbey Films Ltd v Attorney General (High Court, 1981) in support of the proposition that ‘…a statutory provision could confer the power on an authorised officer (without the intervention of the judicial process) to enter into a dwelling house and inspect documents there where such action was warranted by the “exigencies of the common good”.’

COVID-19 and the associated public health threats present a compelling public interest that could meet this standard and justify such a power of entry. In addition, a limited entry for a defined purpose – terminating a non-compliant gathering – would not have a pervasive or sustained impact on the private use and enjoyment of the dwelling, unlike some incursions previously impugned by the courts on substantive privacy grounds, such as persistent watching and besetting of a private dwelling. 

Finally, it is worth nothing that the protection of the dwelling in Article 40.5 has been extended by the courts to commercial premises. In earlier decisions, the courts had resisted this conclusion. However, in more recent decisions, they have recognised Article 40.5 as protecting commercial premises that are subjected to searches and/or seizures. What remains unclear is the level of protection that commercial premises benefit from – it seems likely that they are less protected than dwellings. For example, the Supreme Court in Damache v D.P.P stated ‘[e]ntry into a home is at the core of potential State interference with the inviolability of the dwelling’.

Nonetheless, Article 40.5 is engaged in respect of pubs, bars, and restaurants impacted by the entry and closure powers proposed under the 2020 Bill. The Bill is procedurally robust in providing for staggered lengths of closure orders with opportunities for compliance and appeal on the part of business owners, as well as for judicial scrutiny of the grounds for extending a closure order. However, the initial entry without warrant can be undertaken on foot of s. 3 without any suspicion of a breach of public health regulations having been formed by Gardaí. In contrast, the power of entry under s. 6(2) of the Criminal Law Act 1997 requires that a member of the Garda Síochána wishing to enter a dwelling must either have the consent of the occupier or other person in charge of the dwelling or must show that the person to be arrested has been observed within or entering the dwelling, or that they suspect with reasonable cause that the person would abscond or commit an arrestable offence before a warrant of arrest could be obtained, or that the person to be arrested ordinarily resides at the dwelling in question. In other words, there must be grounds established that indicate that entry without a warrant is urgently required.

Under s. 3 of the 2020 Bill, Gardaí are given the power to enter without warrant to check if compliance is occurring and to act if it is not. They need have no suspicion of non-compliance prior to entry, nor are they required to have evidence of urgent necessity of entry. Although this approach is more intrusive, it seems logically required as a means of tackling the public health challenges posed by COVID-19, and therefore is likely justifiable for constitutional purposes as a temporary measure. However, in light of the analysis above, it remains possible that a court confronted with a challenge to s. 3 if enacted might conclude that the power of entry goes further than is necessary to achieve the relevant public health goals. A court might determine that Gardaí could be required to either establish reasonable grounds to suggest that entry is necessary to break up a non-compliant gathering that is suspected to be taking place or to obtain a warrant for entry from an authorised actor independent of the investigation without those hurdles rendering their enforcement powers impracticable or useless as a means of responding to COVID-19.

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, Powers of Entry, and the Constitutional Protection for the Dwelling’ COVID-19 Law and Human Rights Observatory Blog (8 September 2020) https://tcdlaw.blogspot.com/2020/09/covid-19-powers-of-entry-and.html