No Jab, No Job? Vaccine Requirements and Anti-Discrimination Law

Mark Bell, Trinity College Dublin

 

As the roll-out of vaccines becomes more widespread, there is a growing debate on whether, and to what extent, employers may impose requirements on their employees to be vaccinated against Covid-19. In the media, this has been given the shorthand of ‘no jab, no job’ policies, and there have been some reports of employers expressing their intent to adopt such measures, especially in the care home sector. In response, commentary has identified a range of legal issues that may constrain employers from introducing such measures. These include fundamental rights, such as privacy and rights to make personal choices relating to medical treatment. One issue that arises frequently in such discussions is whether a duty to vaccinate breaches anti-discrimination law. 

 

Protected Grounds

A starting point for exploring this issue is to identify which of the protected characteristics found within anti-discrimination law may be engaged by a vaccine obligation. In Ireland, the Employment Equality Acts (EEA) 1998-2015 prohibit discrimination on nine grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race, Traveller community. Being treated differently because of a personal objection to any or certain vaccines is not a protected ground; it is only where the reason for not getting vaccinated is connected to one of the protected grounds that the Act is engaged. Notably, section 6(2)(e) defines the religion ground as ‘religious belief’, or not having such a belief. A deep-seated objection to vaccines, which is not rooted in any religious belief, will not fall within the category of beliefs protected by the EEA. 

 

Indirect Discrimination

If a workplace vaccination policy applies to all employees, or all employees performing a particular type of work, then it is unlikely to constitute direct discrimination. It should be noted that section 6(2A) EEA prohibits less favourable treatment ‘related to’ pregnancy. Currently, there are restrictions on when Covid vaccines may be taken during pregnancy; the HSE recommends that vaccination occurs after 14 weeks of pregnancy and before the end of 33 weeks. If an employee is temporarily unable to comply with a vaccine requirement for a reason related to pregnancy, then it would very likely constitute unlawful discrimination if she was treated less favourably as a result. 

Although direct discrimination is unlikely to arise, there are circumstances where a vaccine obligation is potentially in breach of the prohibition of indirect discrimination. This exists where an apparently neutral provision puts persons with a particular characteristic (eg religious belief) at a particular disadvantage, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (s.22 and s.31 EEA).

Obviously, at the present time, vaccines are not generally available to the working age population and they are being primarily distributed by age categories. There will be a transitional period when, for example, persons over 55 have access to the vaccine, but those in younger age cohorts generally do not. Clearly, at that point in time, to advertise a job as only open to those who have already been vaccinated would place persons under the age of 55 at a particular disadvantage. That situation is, however, temporary, so it is more important to focus on what happens when we have reached the point where any employee could have the vaccine if they chose to do so. 

The first scenario to consider is those employees who have not received the vaccine due to medical advice. Currently, persons who have had a severe allergic reaction to any of the ingredients in the vaccine are advised not to get a Covid vaccine. It is possible that a person falling into this category will satisfy the definition of disability within s.2(1) EEA, so a vaccine obligation could be indirectly discriminatory on grounds of disability unless the employer can justify this requirement. In addition, there is a duty on employers to provide reasonable accommodation for persons with disabilities (s. 16 EEA). An employer would have to explore whether appropriate measures could be taken in this situation to allow the person to continue in employment, such as working from home. In relation to disability discrimination, it is important also to note that the definition of disability extends to persons with psychosocial impairments, such as anxiety disorders or phobias. There may be situations where a person’s reason for not getting vaccinated is related to a psychosocial impairment, which may trigger the application of the disability provisions of the EEA. 

Another scenario that may arise relates to employees who decline to get vaccinated due to their religious beliefs. Many faith communities are supportive of the vaccination programme, so it appears that it will be less common for individuals to refuse vaccination on religious grounds (at least in Ireland). Nevertheless, it is reasonable to anticipate that there may be individuals who explain their objection to vaccination on the basis of religious belief. For example, in the USA, some have expressed religious objections to the Johnson and Johnson vaccine. With respect to establishing indirect discrimination, individuals whose religious practices are less common may find it difficult to demonstrate that that a group of persons, sharing their characteristic, is placed at a particular disadvantage. If particular disadvantage to persons sharing a particular religious belief can be established, then it remains open to the employer to seek to justify the requirement. 

 

Justifying a duty to vaccinate

This brief discussion indicates that anti-discrimination law is not necessarily or automatically incompatible with an employer imposing a duty on existing or future employees to take a Covid vaccine. Yet it is conceivable that circumstances arise where an objection on the part of an individual engages anti-discrimination law. Even then, there is flexibility within the law on indirect discrimination for an employer to demonstrate that their policy is objectively justified. This will require the employer to identify the aim that the policy is pursuing and to demonstrate that a mandatory vaccination requirement is both appropriate and necessary as a means of pursuing that aim. Necessity is typically read by courts as implying proportionality. Consequently, an employer could be required to show that the requirement was necessary for the specific role that the employee is performing and that no less restrictive measure would be sufficient. With this in mind, employers contemplating such policies would be well-advised to consider carefully their rationale and whether they need to be extended to all employees or only certain roles. Thorough analysis of such measures will also need to address the wider range of legal issues that have not been discussed in this blogpost, including employees’ rights under the Constitution or the European Convention on Human Rights. 

 

Mark Bell is Regius Professor of Laws, School of Law, Trinity College Dublin. 

 

Suggested citation: Mark Bell, ‘No Jab, No Job? Vaccine Requirements and Anti-Discrimination Law’ (25 March 2021)  https://tcdlaw.blogspot.com/2021/03/no-jab-no-job-vaccine-requirements-and.html

 

 

 

 

The Intellectual Property Framework of the COVID-19 Vaccine Race

Ana Santos Rutschman, Saint Louis University

 

The COVID-19 pandemic drew renewed attention to the importance of vaccines for pandemic preparedness. While undeniably ground-breaking on multiple levels, the quick development and authorization of new vaccines also constitutes a reminder that the global vaccine innovation ecosystem is often dependent on expedited collaborations between players with complementary, yet distinct, agendas. In my work studying vaccine races, I have been focusing on the role of intellectual property – especially patents – in research and development (R&D) of new vaccines needed to help prevent or curb the spread of emerging pathogens.

 

The first question with legal and policy salience relates to rights over emerging technologies – which in the case of vaccines are also technologies likely to be welfare-enhancing. In the context of the COVID-19 vaccine race, we have observed the commercialization of a new type of vaccines (mRNA vaccines, like the ones made by Pfizer/BioNTech and Moderna) alongside the development of vaccines based on approaches that have been in use for decades (like the vaccines made by Sinopharm and Novavax). Irrespective of the type of vaccine technology, there is almost certainly one or more layers of intellectual property rights giving patent holders significant control over the commercialization of these vaccines – and, indirectly, over the allocation of goods that for a significant part of the pandemic are likely to be scarce.

 

The intellectual property landscape in itself is bound to be opaque for the duration of the pandemic. Several patent offices across the world publish patent applications 18 months after the filing (or earliest priority date). During COVID-19, some patent offices shared information rather quickly – for instance, the Chinese patent office published the first known application for a COVID-19 vaccine-related patent in June 2020, and granted the patent the following August. But this is not the norm, and it causes players in this field to operate against a backdrop of legal uncertainty – not to mention the fact that it opens the door to potential litigation for years to come.

 

Vaccines developed through reliance on new technology raise additional intellectual property “flags.” In the case of the COVID-19 mRNA vaccines, this new technology is not only very likely to be of use for the future development of vaccines targeting other pathogens, but also for other types of biomedical products, such as treatments for autoimmune diseases. In this sense, mRNA techniques are widely expected to function as platform technologies, which enable diverse uses by follow-on researchers. Intellectual property decisions being made now are thus likely to affect research on – and ultimately the production and commercialization of – health goods well beyond the realm of vaccines.

 

This veil of uncertainty is important because it adds to other problems posed by the commodification of health goods like vaccines. Protecting the development of vaccine technology through intellectual property rights is one of the ultimate embodiments of this commodification ethos: it drives companies to invest in vaccine R&D according to calculations that are largely driven by risk- and revenue-related considerations, rather than public health preparedness imperatives. And while the public sector plays a considerable role in both funding and performing vaccine research, we have historically always needed private-sector players to conduct late-stage and manufacture vaccines. Balancing the need to keep these commercially driven players interested in vaccine R&D with extra-commercial considerations is tricky – but necessary.

 

I do not mean to suggest that there should be no patents over these vaccines, or components thereof. First, given the present articulation of international laws (TRIPS article 27) with domestic or regional legal regimes, carving out a patent-free space for vaccines – even if it were just for pandemic vaccines – violates international intellectual property and country-level laws. Changing the current legal regime would require a long and politically fraught quasi-global negotiating process – which is not to say that the international community should not reassess whether patents are really doing their utilitarian, innovation-enhancing job in this area; but we certainty should be able to move towards a more balanced legal and innovation regime through more timely interventions.

 

The COVID-19 pandemic has proved a fertile ground for considering what some of these interventions might be. First, Costa Rica and a few other countries prompted the World Health Organization to create a patent pool for the cross-licensure of patent-protected health technologies. In response, the COVID-19 Technology Pool was launched in May 2020. Second, a group of law professors and lawyers launched the Open COVID Pledge, a structure that allows patent owners to adopt binding licenses promising not to enforce their patents during the pandemic – thereby lessening both the fenced-in nature of patented technologies and the uncertainty as to the legal status of a particular technology. These developments highlight how it is possible to infuse proprietary frameworks – our patent-centric health innovation system – with less commercially driven motivations.

 

The drawbacks of both patent pools and pledges relate to the fact that they depend almost entirely on voluntary gestures of the patent holders. Additionally, most of the medical technologies made available under pool and pledge models during the COVID-19 pandemic were not related to vaccines. This once again points to how poorly vaccines fare under the current dynamics of vaccine R&D. We do not invest nearly enough in vaccine R&D targeting emerging pathogens before an outbreak occurs – but should one occur, we tend to subject vaccine development to the rules that apply to the development of other types of goods, even if these goods obey very different economic models or are of lesser importance from a public health perspective.

 

It is possible to build on the success of mechanisms that mitigate the siloed nature of intellectual property in areas other than vaccines during the COVID-19 pandemic – and hopefully to import some measure of that success to the field of vaccines. In the post-outbreak, as we reassess preparedness mechanisms, the intellectual property of vaccines should at a minimum be one of the topics of discussion. And perhaps policymakers should consider the formation of vaccine-specific patent pools before another large outbreak occurs. Likewise, they may wish to put proposals on the table to nudge companies to pledge or pre-license some of their vaccine technology – perhaps more established forms of technology – in advance of an outbreak, rather than engaging in these efforts during pandemics and epidemics. I proposed a similar vaccine-specific model in the aftermath of the Ebola and Zika outbreaks a few years ago. In the meantime, the COVID-19 vaccine race is poised to have a long intellectual property arm – one that should be discussed more often outside academia and activism arenas, as it has a substantial impact on the availability, types and costs of health goods we will need to prepare for, and respond to, future pandemics and epidemics.

 

Ana Santos Rutschman is an assisnt professor at the Center for Health Law Studies, Saint Louis University School of Law & Institute for Vaccine Science and Policy, Saint Louis University.

 

Suggested citation: Ana Santos Rutschman, ‘The Intellectual Property Framework of the COVID-19 Vaccine Race’ COVID-19 Law and Human Rights Observatory (23 March 2021) https://tcdlaw.blogspot.com/2021/03/the-intellectual-property-framework-of.html

Religious Freedom and Pandemic Restrictions

Eoin Daly, NUI Galway

 

There has been some confusion lately about the application of pandemic restrictions to religious worship. Oran Doyle has argued that while police have apparently threatened ‘at least one priest’ with prosecution, religious services are in fact not prohibited by the current regulations. This, as he has outlined, contrasts with the position that applied in the spring during the first ‘lockdown’. Meanwhile, the Catholic hierarchy have recently urged a ‘restoration of public worship’. While Oran Doyle has outlined the Rule of Law implications around the confusion of advisory guidelines with law, my  purpose in this post is to consider, at a more abstract level, what the constitutional position is in Ireland regarding legal restrictions (hypothetical or otherwise) on religious worship.

 

While this question would turn to a large extent on general principles of proportionality, my focus here is on the relative peculiarity of religious freedom as a constitutional right, both in Irish case law and more generally.

 

American lessons

In short, most plausible ‘tests’ for violation of religious freedom quickly run into conceptual difficulty and contradiction. This is most vividly illustrated by the history of religious-freedom jurisprudence in the United States. Until the 1990s, the standard test for applying the first-amendment ‘free exercise’ clause focused on the effect state actions had on religious freedom in practice – and particularly the centrality or importance of the religious practices or beliefs they affected. This raised intractable problems involving courts assessing, or somehow weighting the importance of the practices or beliefs affected by general legislative restrictions that were usually not targeted at religion as such. Take, hypothetically, the example of a general prohibition on face coverings, that, let us imagine, was not enacted with religion in mind, and predated any political controversy about religious face coverings. Supposing we were to decide that a violation of religious freedom was based on the effects of a measure, rather than its object or aim. But how is that effect appraised? It is obviously unsustainable to grant an automatic expectation of exemption, for religiously-motivated conduct, from every general prohibition of a specified type of conduct. On the other hand, however, using the effect of a measure, as a threshold or test for violation, raises the difficult prospect of courts making religiously controversial judgments about the relative weight or importance of various religious practices.

 

Partly in response to such conceptual difficulties, the US Supreme Court effected an about-turn in its first-amendment religious freedom jurisprudence in the 1990s. In the landmark case of Employment Division v Smith (1990), it held that no violation of ‘free exercise’ arises from legislative measures that are religiously ‘neutral’ and of ‘general applicability’ – regardless of their effects on religious practice. While this got around some of the conceptual difficulties of the test it had displaced, it caused controversy because of the seemingly precarious position in which it apparently placed minority religious practices in particular. Since it left the question of religious exemptions at the discretion of political authorities, it left open the prospect that minority religious practices, in particular, might be inadvertently or carelessly restricted by generally applicable legislative prohibitions. In any event, Smith shifted the focus of religious-freedom jurisprudence to a broad question of religious neutrality, with the Court often taking a broad approach in practice to considering whether impugned restrictions were ‘neutral’ in the broad sense.

 

Ireland: constitutional ambiguity

Irish constitutional jurisprudence has not escaped these conceptual difficulties, although they have not been confronted as explicitly or as vividly as in the United States. While we have relatively little case law relating to religious freedom, I have suggested in a previous article that our jurisprudence oscillates between two competing ‘grammars’ of religious freedom.  On the one hand, there is no unifying constitutional ‘principle’ to make sense of the religious-freedom provisions. Indeed, the text of the Constitution itself is flexible enough to accommodate quite diverse conceptualisations of the public status of religion. It can be read, on the one hand, as embracing religion – or perhaps a preferred version of it – as an integral aspect of the common good, to be protected and promoted by the State as such (the ‘communitarian’ reading). Alternatively, the Constitution can be read, in a more ‘liberal’ sense, as placing religion in the “private” sphere, as being largely a question of individual choice. A good deal of revisionist scholarship in recent years and decades has emphasised the relatively liberal and pluralist tenor of the constitutional provisions on religion, compared with the public perception of a Catholic or even theocratic Constitution. Still, however, one could hardly say that it straightforwardly embraces a liberal model of state neutrality towards religion. 

 

This conceptual confusion is most clearly expressed in the case law concerning religious education, where despite earlier judicial affirmations as to the centrality of Christianity and of religious identity in the constitutional order, the Supreme Court in more recent decades has reconceptualised state support for religious education as being justified merely in terms of facilitating parental ‘choice’, defined in religiously neutral terms.  And in the wider discourse on religious schooling, religion has often been depicted as something of a parent-consumer ‘choice’ rather than as a constitutive identity warranting specific constitutional recognition. 

 

Yet, as late as 2009, MacMenamin J in McNally v Ireland [2009] IEHC 573 described the Constitution as having “a monotheistic Christian ethos”,  in upholding legislative regulation of the sale of ‘authentic’ Mass cards. He observed that whereas “in United States jurisprudence there is a wall of separation … under the Constitution of Ireland there is a constitutional ‘domain’ of religious recognition”. This reading positions the Irish Constitution close to the spirit of Justice Scalia’s dissent against a judgment prohibiting public-school prayer where he criticised the Court’s (then) liberal majority for understanding religious practice as “some purely personal avocation” (Lee v Weisman 505 US 577, 645 (1992)).

  

Case law

This ambiguity of principle is reflected in the difficult question of whether religious freedom warrants exemption from generally applicable legislative restrictions that affect, but are not targeted at religious practice as such. In Quinn’s Supermarket v Attorney General [1972] IR 1, the Supreme Court held, based on a strict reading of the prohibition on religious “discrimination”, that religious exemptions from legislative prohibitions were unconstitutional as a form of discrimination, whether they are benign or otherwise. However, it also ruled that where religious exemptions are necessary to religious freedom, they are not only constitutionally permissible but constitutionally required, at least to the extent that such exemption is in fact necessary to accommodate the religious practice in question. 

 

The implication of Quinn’s Supermarket was, in theory, to eliminate any political discretion regarding religious exemptions. They are either constitutionally prohibited, or constitutionally required, depending on their necessity. One of the problems thrown up by this approach was the question of defining such necessity, both in terms of appraising the impact of legislative restrictions on religious practice, and the question of weighing this impact against countervailing public policy considerations.

 

Further uncertainty was added by a second landmark case on religious freedom, Murphy v IRTC [1999] 1 IR 12, which concerned the prohibition of a Christian evangelical radio advertisement on private commercial radio. Interestingly, the impugned legislative measure – a prohibition on TV and radio advertisements aimed at ‘religious … ends’ – was not a generally applicable prohibition but one targeted at religious activity specifically. However, what seemed most decisive in the Supreme Court’s upholding of the measure was what it perceived as its marginal impact on religious practice. Although ‘profession’ of religious beliefs is specifically protected by Article 44.2, the Court was swayed by the fact that the applicant would have access to other avenues for expressing his beliefs. The implicit underlying assumption – arguably a problematic one – is that evangelising on the airwaves is not essential to religious practice, and so receives little or no constitutional protection. The justifications which the Court accepted as outweighing the religious claim – in particular, the rather intangible concern for ‘divisiveness’ – seemed quite vague and abstract.

 

Application to pandemic restrictions

In terms of pandemic restrictions on religious practice – hypothetical or otherwise – there are a few tentative conclusions we can glean from the limited case law. In contrast with the U.S. case law, Irish courts have few reservations about appraising the significance of legislative restrictions for religious practice; in fact, this seems more decisive than the neutrality or general applicability of the restrictions themselves. It seems safe to say that a prohibition having the effect of preventing congregation for the purpose of religious service or worship would be accepted as affecting religious practice in a deep and significant way. What this suggests, I think, is that the constitutional question would likely be addressed with reference to generic principles of proportionality, but with a relatively intense or strict standard of review. It seems safe to say that a Court would not accept the relatively intangible justifications proffered in Murphy as satisfying a proportionality standard in relation to a closure of places of worship. Needless to say, more compelling and concrete justifications are available in this unique situation.

 

Finally, the recent case law of the United States Supreme Court is of relatively little use in guiding the equivalent question in Ireland. The Court narrowly upheld restrictions on religious worship early in the pandemic last spring, but narrowly ruled in the opposite direction in the autumn and again, in February, following the successful confirmation of Amy Coney Barrett. However, these cases were decided based primarily on the argument as to whether the relevant restrictions on religious worship were ‘discriminatory’, in the broad sense, when compared with restrictions even on differently positioned secular businesses such as shops, liquor stores, etc. For the reasons I have outlined, the constitutional question in Ireland would likely be decided based on quite different parameters. While a concurrent challenge based on religious ‘discrimination’ in Article 44.2 is possible, it seems unlikely to succeed given the circumstances. Rather, the argument is more likely to be one for particular treatment of ‘exemption’ for religious worship.

 

Eoin Daly is a lecturer in NUI Galway and author of Religion, Law and the Irish State (Clarus, 2012)

 

Suggested citation: Eoin Daly, ‘Religious Freedom and Pandemic Restrictions’ COVID-19 Law and Human Rights Observatory Blog (19 March 2021) https://tcdlaw.blogspot.com/2021/03/religious-freedom-and-pandemic.html

Conspicuous by its Absence: Explaining Ireland’s Minimal State Aid Response to the COVID-19 Pandemic

Christopher McMahon, Trinity College Dublin 

 

It was recently reported that among EU Member States Ireland has spent the least on pandemic-related State aid in the past year in proportion to its GDP. Ireland has spent €0.93 billion in State aid to businesses which amounts to 0.26% of GDP. The contrast with the countries at the other end of the European Commission’s State Aid Scoreboard is stark. France, which spent the most in absolute terms, granted €155.36 billion in aid amounting to 6.4% of GDP. Spain, which spent the most as a proportion of its GDP, granted €90.85 billion or 7.3% of GDP. Further, while there have been only 8 Commission decisions on different measures implemented by Ireland relating to the pandemic, 38 such decisions have been taken for Denmark, 31 for Italy and 22 for France. 

 

While Ireland is not a complete outlier, with 8 other Member States granting less than 1% of GDP, the headline figures give the impression that Ireland is either very fiscally conservative compared to its neighbours or very unwilling to use aid to deal with the pandemic, or both. This invites consideration of the reasons why Ireland sits at the bottom of this table despite the well-publicised and unprecedented income supports that have already been put in place in this jurisdiction.

 

The EU State aid regime 

First, it is worth taking a moment to consider what State aid is and how it is regulated in the EU. Articles 107-109 TFEU are designed to prevent Member States from handing out public money to private businesses. Article 107 TFEU sets out a general prohibition on State aid. State aid is defined loosely in the European Treaties and has been interpreted by the case law of the Court of Justice of the European Union to mean any measure that meets four conditions. The first is that it must be granted by the State or through State resources. Second, it must confer an advantage on an undertaking. Third, it must be selective in that it is targeted towards a relatively narrow group of undertakings rather than being a general measure applying to all undertakings in a comparable legal and factual situation. Fourth, it must have the potential to distort competition in the internal market and affect trade between Member States. All new aid must be notified to the Commission before it is implemented so that it can be reviewed for its compatibility with the internal market. 

 

Pandemic response of the European Commission

While Article 107(3) sets out general grounds on which the aid can be held to be compatible, the Commission has a lot of discretion in this area and frequently adopts guidelines on different types of aid. One such set of guidelines is the Temporary Framework which was adopted in March 2020 to allow Member States to grant more aid to respond to the pandemic. This has been amended on five occasions since then and it has been extended to aid measures granted no later than 31 December 2021. These rules are relatively permissive and allow aid for temporary income supports for businesses, the purchase of equipment to reduce infection risk and research into COVID-19. These rules, combined with the extremely low cost of borrowing for EU Member States throughout the pandemic, would appear to make the prospect of granting aid considerably more attractive. 

 

Ireland’s State aid response to the pandemic 

However, Ireland has not implemented very much aid. At the start of the pandemic, the Irish government notified a scheme of repayable advances to companies to adapt to COVID-19 restrictions. This was followed by various schemes of direct grants to restart businesses in the summer of 2020. Grants were also provided for research into COVID-19 and for investment into upscaling production of medicines and medical equipment to treat the disease. Indeed, the Irish government offered aid to pharmaceutical companies with manufacturing plants in Ireland to produce vaccines in Ireland but this was refused on the basis production facilities in Ireland were at capacity producing other medications. From August 2020 onwards, the aid measures were more targeted and were granted to businesses in the hospitality, entertainment and tourism sectors. 

 

Broad measures are not State aid

Before jumping to conclusions about the reluctance of the Irish government to spend money to support the ailing economy, it is important to note that not every State intervention will count as aid. It will be recalled that the State aid rules only apply to aid measures that are granted to undertakings rather than to citizens. This means that social welfare payments to citizens in the form of the Pandemic Unemployment Payment do not come within these rules. Further, it will be recalled that the prohibition on aid only applies to measures that are targeted towards specific groups of undertakings rather than general economic policy measures. This means that very general schemes, such as the Temporary Wage Subsidy Scheme and the Employment Wage Subsidy Scheme that replaced it, will not come within the general prohibition because they are offered to undertakings in general, subject to criteria relating to the impact of COVID-19 on their businesses. As the restrictions on economic and social activity arising from the pandemic begin to subside, these support measures may become more targeted to specific industries and more aid notifications may be required. 

 

Irish economy and aversion to aid

However, one must look further to find reasons why Ireland differs from other Member States in this respect. One reason might be that calculating aid as a proportion of GDP is problematic for Ireland. There are concerns about the accuracy of this measure for Ireland and its tendency to overestimate the size of the domestic economy due to the large presence of multinational companies in the State. This means that the proportion of the income the Irish government really has available to it may be underestimated by this measure. Another might be that the Irish economy has not been the worst affected by the pandemic, with its reliance on knowledge economy workers as well as pharmaceutical and technology manufacturing industries. Indeed, Ireland was the only EU country to enjoy a positive GDP growth rate in 2020. This may mean that less extensive supports are needed compared with other countries.

 

Despite these mitigating factors, it seems as though Ireland has at least something of an aversion towards State aid. Notwithstanding the continuing dispute over what an allegedly very large grant of aid to Apple through the tax system arising from a Commission decision in 2016 which has since been overturned and remains the subject of a further appeal, the reluctance of the government to resort to such measures in the pandemic is not inconsistent with policy over the last number of years. Excluding aid related to the financial crisis, Ireland has consistently been among the Member States granting the lowest amounts of State aid in the past few years, with the amount of aid in absolute terms granted by the State declining by almost two thirds between 2010 and 2017. This may simply be a policy choice on the part of the Irish government and the model of capitalism it has chosen to adopt. It has been suggested that strict application of the State aid rules has different effects on different models of capitalism, posing particular problems for more coordinated economies such as that of Germany. Ireland organises its economy quite differently. Outside the banking sector, Ireland does not have the same level of public ownership of industry that is seen in other Member States. A clear example of this can be seen in the decisions of other Member States to grant aid to national airlines and the Irish airline Ryanair’s unsuccessful attempt to challenge the approval of such aid from Sweden and France as unlawful. That being said, Ireland has paid lower levels of aid as a proportion of GDP than the UK since 2014, which might also be regarded as diverging from continental norms. It may be that Ireland has a particular aversion to the administration costs and review mechanisms that often come with notifying aid and is more willing to design measures so that they avoid the prohibition altogether. 

 

As a final point, it is interesting that despite this apparent preference for avoiding the State aid rules and the notification process altogether, the Irish government has not frequently cited the State aid rules as a reason for refusing to embark on a particular policy. This contrasts with its apparent willingness to cite the Constitution as obstacles to implementing a range of different policies, a practice which has been criticised in an earlier post on this blog by Rachael Walsh and elsewhere by David Kenny and Conor Casey. Given the potential of the State aid rules to touch on a very wide range of policies, they could easily become an alternative legal scapegoat. This may be particularly likely as more targeted supports replace the general schemes from the pandemic and the government’s need for support from the EU institutions in dealing with Brexit becomes less acute. 

Christopher McMahon is a PhD candidate at Trinity College Dublin. He holds degrees from Trinity College Dublin and the University of Oxford and was called to the Bar of Ireland in 2020.

 

Suggested citation: Christopher McMahon, ‘Conspicuous by its Absence: Explaining Ireland’s Minimal State Aid Response to the COVID-19 Pandemic’ (6 April 2021) https://tcdlaw.blogspot.com/2021/03/conspicuous-by-its-absence-explaining.html 

Facemasks in Prison During a Pandemic – How to Balance Safety, Security and Rights?

Sophie van der Valk, Trinity College Dublin 

Mary Rogan, Trinity College Dublin

 

One of the global responses to Covid-19 has been the call for the wearing of face masks. In Ireland, this has resulted in a requirement for public indoor spaces and public transport with a fine of €80 for non-compliance. It is additionally recommended in busy outdoor spaces and during visits with vulnerable people.  The use of facemasks in the context of prisons raises complex questions. Prisons have been considered high risk environments for the spread of infectious diseases such as Covid-19. To date there have been 51 cases among the prison population in Ireland.  While these numbers are relatively low, prison populations in other countries have been severely affected by Covid-19 outbreaks, most notably the US where 1 in 5 prisoners or at least 275,000 prisoners have tested positive for Covid-19. This is a rate four times highly than in the general population and highlights the specific risks in an overcrowded environment of the rapid spread of Covid-19. The risks of severe disease are also high in prisons, with people in prison disproportionately likely to experience underlying and high-risk conditions.  As such, people in prison may wish to wear masks in an effort to protect their health. On the other hand, prison authorities and prison staff may consider the wearing of masks a security risk, as they may prevent the identification of prisoners. In this blog, we consider some of the issues arising out of the wearing of facemasks in prisons by examining the approach in the Netherlands, comparing it with Ireland and assessing the role of  international human rights law. 

At the start of the pandemic in March 2020, prisoners in the Netherlands were banned from wearing face masks while in prison. This is in contrast to the position for those in the community, where masks are required inside any public space and on public transport, with non-compliance subject to a fine of €95.

 

According to the Dutch prison service, the wearing of face masks impacts on prison officers’ ability to recognise prisoners and the reading of facial expressions. This point has also been debated by other prison services such as Scotland and England and Wales, where the introduction of face masks in prisons for prison staff followed by prisoners took place at a later date than in the wider community. Relationships play a key role in prison environments and officers rely on being able to talk to prisoners and gauge their mood, a key part of ‘dynamic security’ which relies on relationships to maintain order rather than force. The prison service also expressed concern about the need to identify prisoners who may be involved in incidents on CCTV footage. In Heerhugwaard prison, a group of prisoners challenged this position and appealed to the courts for the ban to be lifted. This ban has since been reversed by the former Minister for Legal Protection, Sander Dekker, due to an increase in Covid-19 cases among the prisoner population and prisoners can now wear facemasks where a distance of 1.5 metres cannot be maintained. The Netherlands has had 25 cases of Covid-19 in prisons. In Ireland, prisoners are required to wear facemasks when they leave their cells and when in contact with prison staff. The initial position of the prison authorities in the Netherlands is hard to square with international human rights law on healthcare in prisons and has been criticised by former prison Governor, Madeleine van Toorenburg, for placing the ability to read expressions above the health of prisoners.

The Irish approach would appear to be a more balanced and proportionate way to manage the competing considerations in prisons. Facemasks have become a form of healthcare in the current situation, at least of a preventive nature. International human rights principles on prison rights outline that prisoners are entitled to healthcare equivalent to that available in the community. Article 24(1) of the UN Mandela Rules state that ‘[t]he provision of healthcare is a state responsibility. Prisoners should enjoy the same standards of care that are available in the community, and should have access to necessary healthcare services free of charge without discrimination on the grounds of their legal status’. The European Prison Rules, revised in 2020, state: ‘Prison authorities shall safeguard the health of all prisoners in their care’ and ‘[p]risoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation’. The WHO states that: ‘[t]he provision of health care for people in prisons and other places of detention is a state responsibility’ and additionally note that ‘experience shows that prisons, jails and similar settings where people are gathered in proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons.’ The European Committee for the Prevention of Torture has also indicated that ‘[a] prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community.’ Domestically, this has been interpreted to mean that those in prison are entitled to the care which someone outside of prison in receipt of a medical card would receive, Rule 33 Prison Rules 2007. 

It is also clear from these standards that decisions of healthcare staff about people in prison should not be overridden on operational grounds. Framing facemasks as forms of preventive healthcare, and knowing what we do know about their importance in confined spaces they must be so considered, preventing the wearing of facemasks would be in breach of these principles. Prisoners are unable to take the steps the rest of us can to secure their own health, and have no control over whom they share space with. As such, denying them access to facemasks cannot be considered justified even on security grounds. 

 

Sophie van der Valk is a PhD candidate on the PRILA project at TCD School of Law examining Prisoners’ Perceptions of Accountability in Prisons.

Mary Rogan is an Associate Professor in Law at the School of Law, Trinity College Dublin and PI on the European Research Council-funded PRILA project examining prison oversight. 

 

Suggested citation: Sophie van der Valk and Mary Rogan, Author, ‘Facemasks in Prison – safety versus recognition?’ (18 March 2021) https://tcdlaw.blogspot.com/2021/03/facemasks-in-prison-during-pandemic-how.html

 

 

Executive Power and the Right to Primary Education: The Case of School Closures

 Conor Casey, European University Institute

On 12 March 2020 then Taoiseach Leo Varadkar announced that the Government had taken the momentous decision to order the closure of primary and secondary schools and third-level institutions in response to climbing levels of COVID-19 infection. This closure would last until August 2020 for primary and secondary schools. On 6 January 2021 the Government ordered a further closure of primary and secondary schools, a closure that is currently being phased out.

 

Like many decisions taken by the Government in response to the pandemic, the repercussions of school closures are being felt very keenly by thousands of citizens and families. Teachers, pupils, and parents have tried to adapt to the difficulties of online teaching, struggled to balance work commitments with at-home learning, and striven to ensure children’s educational progress does not regress. 

 

Whether one agrees or disagrees with the merits or wisdom of the Government’s decisions, there is no doubting they are truly weighty ones that directly touch on the State’s constitutional obligation to provide for free primary education. On what legal basis did the Government take such a significant decision dramatically affecting the lives of thousands? Surprisingly, this question has received vanishingly little discussion. The purpose of this post is to outline the most plausible legal basis for the Government’s closure order and offer some critical thoughts.

 

Government power and the Constitution

The Irish Government derives its powers from two sources. One source of legal authority comes from statutes passed by the Oireachtas granting the Government, or a member of Government, statutory authority. Statues like these will typically provide a Government minister power to take X, Y, or Z action in respect of a particular policy area; or set out broad objectives to be achieved while giving a minister discretion on how to go about pursuing them through promulgating secondary regulations. Statutes make up, by far, the bulk of the Government’s legal authority. 

 

The second source of authority comes directly from the Constitution. The Constitution explicitly vests several powers in the Government, including power over the conduct of foreign affairs, the appointment of judges, defence of the State from invasion, and preparation of the budget. Aside from explicit powers vested by constitutional text, there is a fuzzy reservoir of constitutional powers housed within Article 28’s laconic vesting of ‘the executive power’ of the State. Article 28 gives the Government the constitutional power and duty to see the laws are faithfully executed, power to set up non-statutory tribunals of inquiry, plenary powers to regulate immigration for the State including the entry, residence and exit of immigrants, and the power to create non-statutory policy schemes. 

 

Article 28 has been used as the legal basis for many weighty policies: the IBC/05 residency scheme, Direct Provision, the State’s main policy document on family reunification for non-EEA migrants, its division of immigration permission into different ‘stamps’, and for several legal aid schemes. More recently, the High Court has confirmed the Government could rely on its executive power to underpin its widespread promulgation of public health guidelines exhorting citizens to take certain steps to help curb the spread of covid-19. 

 

There are several limits on using executive power to achieve policy goals. The most important is that it cannot be used to frustrate or usurp legislative power by purporting to amend, disapply or suspend a statute. Executive power cannot also be used to impose legal burdens or obligations on citizens – the hallmark of a legislative power reserved exclusively to the Oireachtas. Indeed, Simons J. in the Ryanair case held that any purported attempt to give the impression that executive power derived guidelines were legally enforceable would be an unconstitutional usurpation of legislative power. This means that constitutional rights like liberty, family, security of the dwelling, property, and access to primary education, cannot be restricted without a statutory basis.

 

Decision to close schools

On 12 March 2020 the Government ordered the closure of primary and secondary schools and third-level institutions as precautionary response to climbing levels of infection. This closure would last until August 2020. On 6 January 2021, the Government again decided that all schools – including special schools – were to be closed, in response to the third wave of the pandemic. In this second instance, the Government based its decision to order a blanket closure on guidance from NPHET, which maintained that while there was ‘very little evidence of transmission within schools’ the levels of mobility and linked activity that reopening could generate would bring an increased risk of further community transmission.

 

While statutory instruments have been used to implement the bulk of the Government’s lockdown strategy, it appears that the closure of schools came from a non-statutory source - a Government decision drawing on the executive power of the State to issue non-statutory policies. 

 

The blanket nature of the closure has been sharply criticised for its disproportionate impact on children with special educational needs or with poor access to online facilities. Some have argued the policy of school closure represents, in its current iteration, an unconstitutional infringement of the rights of children to be provided with primary education by the State.  A legal opinion prepared for the Children’s Rights Alliance argued that ‘children with special needs for whom online learning is not practicable are not receiving any educational provision at all’ and that many mainstream primary students lack the ‘IT facilities and adult supervision’ to make use of the online educational provision.

 

Are there any problems with closing schools via executive power?

There is, in my view, nothing inherently problematic with the Government relying on its non-statutory constitutional powers to pursue policy goals. Using executive power unilaterally and without a statutory basis can be a useful way to respond rapidly to a policy problem, and to maintain a high degree of flexibility. The common good, to which the Irish Constitution orients all political life, arguably demands a unified and energetic executive able to act in this manner where necessary.

 

But relying on executive power to pursue policies has its detractions. Policies created through executive power are simply not subject to the same level of deliberation and scrutiny as those stemming from bills passed through the legislative process. One does not need to work from an unrealistic ideal-type image of the parliamentary process to suggest that it offers some level of increased scrutiny and debate more than unilaterally issued executive measures; an increased level of debate and scrutiny which can be useful for bringing perspectives to bear that might have been overlooked or given inadequate consideration by Government or its civil servants. 

 

Such inputs can spark public debate and pressure for policy alterations. In this context, it is worth considering whether the need for statutory authority to issue a closure order would have led to more political debate in the Oireachtas about the disproportionate impact on children with special needs? Would it have led to a more tailored policy suitable to their needs? What can be said at least is that the chances such concerns would have been aired and debated were vastly more likely in a more open and deliberative forum like the Oireachtas. 

 

More problematic, from a strictly legal perspective, is whether the closure of schools can be conceptualised as a restriction of children’s constitutional rights as opposed to merely being a different way of regulating or structuring their exercise. The more charitable interpretation is that the Government has not restricted the right to primary education but regulated it in a manner suitable to the current circumstances of the pandemic. That is to say, the mode of delivery might have changed, but the Government is still allocating the resources to vindicate the right to primary education as before. The less charitable interpretation, one reached by counsel briefed by the Children’s Rights Alliance, is that it is reasonable to conclude there are ‘categories of children for whom no educational provision is currently being made.’ In other words, their constitutional rights are being de facto restricted.

 

I do not profess an opinion either way here save to say that, to the extent one can view the closure of schools as a restriction on the rights of some children to access primary education, then the constitutional propriety of relying on executive power to close schools diminishes rapidly and the need for a legislative basis to lawfully ground such action becomes more pressing. 

 

Conor is a Max Weber Fellow at the European University Institute and incoming Lecturer at the University of Liverpool School of Law & Social Justice. The author would like to thank Hilary Hogan for helpful comments on the post.

 

Suggested citation: Conor Casey, ‘Executive Power and the Right to Primary Education: The Case of School Closures’ (11 March 2021) https://tcdlaw.blogspot.com/2021/03/executive-power-and-right-to-primary.html