Tuesday, March 2, 2021

Legislative Coupling in the COVID-19 Crisis - Disentangling the 5km Travel Restriction and the Eviction Ban

Editor's note: this post marks the first of a new series of posts on this blog.


We welcome proposals for blog posts. In particular, we will be running a series of posts on issues raised by vaccines at the end of March and would welcome further proposals on those topics. Please email oran.doyle@tcd.ie.

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Rachael Walsh, School of Law, Trinity College Dublin

 

Introduction

The current 5km limit on travel from home for exercise has been identified by the Taoiseach as a candidate for relaxation in any revision of Level 5 restrictions in April. However, there has been media speculation that the Government is constrained in its ability to lift the 5km limit on travel for exercise by the legal underpinning for the current moratorium on evictions. It has been suggested that these issues were linked due to legal advice given to the Government that an eviction moratorium would not be constitutional if based on economic, rather than public health, concerns. 

 

This post explores that question. First, it analyses how these two issues are in fact linked in legislation; second, it assesses whether this approach is plausibly necessary to ensure the constitutionality of a moratorium on evictions in the context of ongoing Level 5 restrictions; third, it argues that they should be de-coupled. 

 

The Legislative Coupling of the 5km Limit and the Eviction Ban

The connection between the 5km limit and the general moratorium on evictions is made in the Residential Tenancies Act 2020. Section 2(1) of that Act provides that an ‘emergency period’ in relation to the tenancy of a dwelling will come into effect where the Minister for Health makes regulations imposing restrictions on travel outside a 5km radius of a person’s place of residence. The only such restriction currently in place is the 5km restriction on travel for exercise, but s. 2(1) is not so limited, suggesting the possibility of regulations imposing restrictions on movement from one’s residence for other reasons. Section 3 of the 2020 Act provides that during an emergency period, and for a prescribed period after its termination, notices of termination cannot take effect, meaning that evictions cannot take place. 

 

Some tenants are excluded from this heightened protection against eviction: first; where tenants (or other occupiers or visitors) are engaged in anti-social behaviour; second, where tenants (or other occupiers or visitors) act in a way that invalidates the dwelling’s insurance; third, where tenants use a dwelling for purposes other than residential accommodation without the permission of their landlord; and fourth, where they engage in behaviour damaging to the fabric of the dwelling or the property containing the dwelling. A further exclusion relates to tenants who are protected against eviction due to economic hardship flowing from the COVID-19 crisis pursuant to the regime established in the Residential Tenancies and Valuation Act 2020 and developed in the Planning and Development and Residential Tenancies Act 2020

 

Apart from these exclusions, the imposition of a 5km limit on travel from a person’s dwelling automatically triggers a ban on evictions. This approach is obviously convenient in bringing two public health measures into effect with one ministerial order. Inconveniently, however, it means that where no 5km limit is in place, the relevant emergency period ceases. Two distinct policy questions, both concerned with reducing mobility in the community, are inextricably tied, despite the fact that the appropriate response to both issues could be assessed differently in any public health evaluation and broader planning for a relaxation of restrictions. Either a relaxation of the 5km limit will come at the expense of security of occupation in the context of an ongoing pandemic, or the 5km limit will be retained in circumstances where other factors – such as mental health and well-being – might support a relaxation.

 

Assessing the Rationale for the Coupling 

The question then arising is whether any legal advice suggesting that the coupling of the moratorium on evictions with the 5km limit was constitutionally required (which has not been confirmed) is on a sound footing. We know that the previous and current Attorneys General advised that the general moratorium on evictions and rent increases that was introduced in the first lockdown was constitutionally suspect once the phased re-opening of the economy began in the summer of 2020. This prompted the introduction of the Residential Tenancies and Valuation Act 2020 in August 2020, which protected tenants who were likely to suffer eviction in circumstances where their ability to pay rent had been adversely impacted by COVID-19 crisis. 

 

However, the general moratorium on evictions in the Residential Tenancies Act 2020 was enacted during Ireland’s second wave of COVID-19. In such circumstances, a stand-alone public health justification (as distinct from an economic rationale) could clearly be articulated that would have withstood constitutional challenge. Article 43 of the Constitution permits the imposition of restrictions on the exercise of property rights to secure the common good and the principles of social justice. Those provisions have generally been interpreted in a manner that favours the public interest and defers to the judgment of the legislature, meaning that a court in the event of a constitutional challenge would be unlikely to second guess the political assessment that a moratorium on evictions was required to reduce mobility. 

 

As such, the linkage does not appear to be required to avoid a constitutional difficulty. The only obvious alternative explanation is that the issues were connected to kill two birds with one ministerial order – a benefit that would not appear to justify rigidly tying the fates of two distinct public health responses to a rapidly evolving pandemic. 

 

Conclusion

As has been pointed out by concerned housing organisations, the lifting of the 5km limit would be welcomed by most people as an important improvement to their overall wellbeing, but would be a disaster for tenants at risk of eviction, who would then face the challenge of finding alternative accommodation during a continuing lockdown. 

 

Working within the current legislative framework, the Government could adopt at least two different strategies to allow travel for exercise beyond 5km without at the same time opening the door to evictions. 

 

First, it could introduce an alternative 5km restriction on travel from one’s residence to satisfy s. 2 of the 2020 Act. Such an alternative - for example, a regulation prohibiting travel from one’s residence beyond 5km for scenic drives - might be capable of being justified on public health grounds during ongoing Level 5 restrictions. However, it would likely be politically unattractive to remove one restriction on travel from home only to replace it with another. Any restriction not raising that political concern might well be so marginal as to border on the absurd, as in the case of the example just given. 

 

Another possible approach would be for the Government to argue that the continuation of the overall prohibition on leaving one’s residence without reasonable excuse satisfied the spirit of s. 2 of the Residential Tenancies Act 2020. The 5km limit on travel for exercise is in fact a reasonable excuse to the general restriction on movement from one’s residence in Regulation 4(1) of the Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19) (No. 10) Regulations 2020. However, s. 2 of the 2020 Act is very specific in referring to a restriction on travel beyond 5km from one’s residence as the triggering event for the eviction moratorium, meaning that such an argument might be rejected in the context of any legal challenge. 

 

Both these approaches have weaknesses and are at best stop-gap solutions that should be avoided given the ongoing nature of the COVID-19 crisis. Instead of papering over the cracks, the eviction moratorium and travel restrictions should be definitively de-coupled. Such an approach would be more rational, and crucially more stable, in the context of the likely continuation of Level 5 restrictions with ongoing revisions in the months ahead. In such a time of crisis, an eviction moratorium is more than capable of standing on its own feet in terms of constitutional justification.

 

Rachael Walsh is Assistant Professor at the School of Law, Trinity College Dublin, and is the author of ‘Property Rights and Social Justice: Progressive Property in Action’ (Cambridge University Press, forthcoming, August 2021). 

 

Suggested citation: Rachael Walsh, ‘ Legislative Coupling in the COVID-19 Crisis -  Disentangling the 5km Travel Restriction and the Eviction Ban’ (2 March 2021) https://tcdlaw.blogspot.com/2021/03/legislative-coupling-in-covid-19-crisis.html

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