Friday, September 18, 2020

Special Measures for Dublin: Legal Restrictions and Government Announcements

        Oran Doyle and David Kenny, Trinity College Dublin



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)

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

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