Grand Chamber of the European Court of Human Rights upholds compulsory vaccination

 

Mel Cousins, School of Social Work and Social Policy, Trinity College Dublin

 

Introduction

Given the current focus on COVID-19 vaccination both in Ireland and, indeed, across the globe, it is timely that the Grand Chamber of the ECtHR has given a ruling on the status of compulsory vaccination under the ECHR. Of course, this case involves different diseases and it has never been suggested that Ireland would adopt a policy of compulsory vaccination. Nonetheless, the approach of the Court may be instructive in relation to a number of ‘quasi-compulsory’ issues likely to arise such as vaccination passports.

 

The Facts

Vavřička v. Czech Republic (8 April 2021) involved challenges to a requirement that all children should be vaccinated against a range of diseases. Preschool facilities may only accept children who had received the required vaccinations, had been certified as having acquired immunity by other means, or as being unable to undergo vaccination on health grounds. Failure to comply with these requirements is a criminal offence punishable by a fine of up to c.€400.

 

The Ruling

The Grand Chamber considered the case under both Article 8 (right to respect for private and family life) and Article 9 (right to freedom of thought, conscience and religion). The Court readily accepted that compulsory vaccination represented an interference with the right to respect for private life under Article 8. It quickly found that, in the cases before it, this was in accordance with national law and in pursuance of a legitimate aim, i.e. to protect against diseases which may pose a serious risk to health.

The focus of the Court’s assessment was, therefore, on whether this was ‘necessary in a democratic society’. As the Court explained (at para 273).

 

An interference will be considered ‘necessary in a democratic society’ … if it answers a ‘pressing social need’ and, in particular, if the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ and if it is proportionate to the legitimate aim pursued.

 

The Court noted that there is a general European consensus that vaccination is one of the most successful and cost-effective health interventions and that States should aim to achieve the highest possible level of vaccination. At the same time, it noted a lack of consensus about how to achieve vaccination with a spectrum of policies, ranging from persuasion to a legal duty to vaccinate. The Court also emphasised the importance of social solidarity which aimed ‘to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination’ (at para 279). The Court recalled that healthcare policy matters come within the margin of appreciation of the national authorities and held that, having regard to the issues outlined, this margin should be a wide one.

As to whether there was a ‘pressing social need’ the Court noted that States are under a positive obligation under the Convention to take appropriate measures to protect the life and health of their people. It was satisfied that the vaccination duty represents the Czech authorities’ response to the pressing social need to protect individual and public health against the diseases involved and to guard against any downward trend in the rate of vaccination. The Court (at para 288) considered that

where the view is taken that a policy of voluntary vaccination is not sufficient to achieve and maintain herd immunity, … , domestic authorities may reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases.

Having considered the evidence, the Court accepted that the choice of the Czech legislature to apply a mandatory approach to vaccination was supported by relevant and sufficient reasons.

Turning to proportionality, the Court noted that while vaccination was mandatory in law there were exemptions and that there was no question of forcible vaccination. It further observed that the Czech courts had developed the possibility of a ‘secular objection of conscience’ and that there were procedural safeguards (e.g. administrative appeals and judicial remedies). It considered that the fines imposed were not excessive and noted that compensation was possible for any injuries to health caused by vaccination.

Finally, while the Court accepted that the exclusion of the children from preschool involved the loss of an important opportunity ‘to develop their personalities and to begin to acquire important social and learning skills in a formative pedagogical environment’, it observed the importance of a high level of vaccination amongst preschool children and that admission to national school was not, in contrast, affected by the law.

The Court, more shortly, dismissed the challenge under Article 9. Noting that none of the applicants had claimed religious objections, it concluded that any critical opinion on vaccination was ‘not such as to constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9’ (Para 335). Accordingly, it did not need to consider whether there was an interference with freedom of conscience or (if so) whether this might be justified. 

Discussion

Thus the Court upheld compulsory vaccination in this context and helpfully set out the issues it will take into account in its assessment. It carried out a detailed assessment of proportionality (on the issues discussed above) although it was arguably inclined to accept a general consensus on the benefits of vaccination without any searching enquiry.

Of course, Ireland is one of the European countries which does not require compulsory vaccination of children and it has never been suggested that it would do so in a COVID-19 context. Nonetheless, issues are likely to arise in the coming months where, it might be argued, vaccination is being made quasi-compulsory. These include, for example, a possible requirement to have a ‘vaccination passport’ in order to travel (or even to attend certain events) or the suggestion that persons in certain employments might be required to be vaccinated. 

The first question (assuming that the rules are set out in law) would be whether the measure pursued a legitimate aim. In Vavřička, the issue was not just the policy of compulsory vaccination but also the fact that this led to denial of access to preschool. Arguably the Court, having accepted the general logic of vaccination, did not subject this specific requirement to a very searching assessment (at paras 305-308). A question may, therefore, arise as to whether it is the overall aim of vaccination which is to be assessed or the specific aim of individual measures, such as vaccination passports.

Second, the Court will look at whether there is a pressing social need and if the reasons advanced by the national authorities to justify it are relevant and sufficient. Finally, the Court will have regard to proportionality in relation to issue such as exemptions, procedural guarantees and the impact of any sanctions. A loss of employment, for example, might be considered to raise serious issues of proportionality (not to mention possible Constitutional issues). 

Mel Cousins is a visiting research fellow at the School of Social Work and Social Policy, Trinity College Dublin.

Suggested citation: Mel Cousins, ‘Grand Chamber of the European Court of Human Rights upholds compulsory vaccination’ COVID-19 Law and Human Rights Observatory’ (29 April 2021) https://tcdlaw.blogspot.com/2021/04/grand-chamber-of-european-court-of.html

Covid-19 and Political Economy: A New Economic Ideology for the European Union?

Hilary Hogan, European University Institute.

In the wake of the Second World War, most of Europe embraced the ideas of British economist John Maynard Keynes. Keynes argued that market forces were not well disposed towards self-regulation, nor were they inherently efficient or capable of preserving employment. These failings warranted ongoing state intervention in the form of taxation, public expenditure and borrowing. His work was revolutionary: governments would no longer be at the mercy of the boom-and-bust cycle of the free market. Instead, states could spend their way out of economic crises, by ramping up public expenditure to stimulate employment, and retreat during booms to cool the economy and allow the state to repay its borrowings.

 

But by the 1980s, Keynesianism had fallen out of fashion, overshadowed by the resurgence in support for economic liberalism – dubbed neoliberalism - championed by Thatcher and Reagan. During the negotiations for the 1992 Maastricht Treaty, which largely remains the foundation for the present-day European Union, other Member States recognised that a European monetary union was inconceivable without German support. Keynesianism had never been popular in Germany, where ordoliberalism had emerged as the dominant school of economic thought. Ordoliberalism is its own form of distinct thought within the neoliberal economic family. Ordoliberalism openly envisages a role for the state that involves the creation of competitive market through its institutions, including the legal system. Neoliberals, on the other hand, tend to argue that the market will reach natural competitive equilibrium if the state refrains from regulating – although it is often argued that this is somewhat of a fiction, and the implementation of neoliberalism requires just as much state intervention.

 

Ordoliberalism envisages a role for the state in the creation of competitive markets through its institutions, including the legal system. Monetary policy prioritises low inflation instead of employment, and an independent central bank ensures that the goal of achieving price stability is immune from political influence. It rejects Keynesian counter-cyclical economic policies, meaning that public deficits should always be kept at a minimum. While the EU is often described as neoliberal, the more accurate description is ordoliberal, as the Maastricht Treaty codified this distinct vision of German political economy. As the Treaties act as the de facto European constitution, the Maastricht Treaty transformed what had previously been  political and economic preferences into purportedly neutral, legally binding principles.

 

The Maastricht Treaty sets strict limits for government deficits and debt ratios, and largely constrains Member States from responding to economic downturns with Keynesian-style fiscal stimulus (tax cuts or public expenditure). The Maastricht Treaty excluded the EU or other Member States from assuming liability for another’s debt -  seemingly ruling out the possibility of an internal European Union bail-out. The new European Central Bank had one sole objective: maintaining low inflation. No matter how high the rate of unemployment, it would be, in theory, entirely irrelevant to the ECB.  Nor was the ECB empowered to act as a “lender of last resort” to Member States, a critical role tasked to central banks who can act to liquidise ailing governments when they can no longer borrow on the international markets. The ECB’s narrow mandate meant it had a strikingly myopic view of Europe’s economic problems that was to prove highly damaging in the wake of the 2008 Financial Crisis.

 

The end result? Europe established a partial monetary union, and defied every leading economists’ recommendation by choosing to leave out a fiscal union. The Member States had ceded control over monetary policy (interest rates) to an unaccountable ECB, which was fixated solely on the rate of inflation. They had established a single currency, meaning that diverse Member States would no longer be able to internally devalue their national currency to make themselves more competitive. Strict fiscal rules on the rate of public deficit meant that Keynesian economic policies were out of the question for ailing Member States: they could no longer spend their way to economic recovery. Nor could they rely on their European neighbours for assistance, as debt mutualisation or a central fund had been ruled out. Due to the ordoliberal ideology of the Maastricht Treaty, the only tool left for Member States who faced financial difficulty was austerity.

 

The Euro Crisis and Austerity

The combination of the single currency, the Euro, underpinned by a rigid ordoliberal ideology was to prove catastrophic for the European Union. When millions of Americans gradually began to default on their mortgage debt in early 2007, the global financial system began to unravel. It soon transpired that Europe had more banks than it needed, and its banks had taken even greater risks in an effort to stay profitable. The introduction of the single currency had also encouraged the widespread purchase of Eurozone sovereign debt bonds, seemingly under the mistaken belief by investors that all Eurozone government debt was equally risk-free. By contrast with its proactive American cousin, the Federal Reserve, which immediately took steps to boost confidence in the economy, the European Central Bank showed little sign of grasping the magnitude of the crisis it faced, or even that it had any role in remedying the situation. Its role in consolidating and worsening the crisis through its unyielding commitment to its underpinning economic ideology cannot be overstated.

 

While the ECB provided liquidity to European banks, it initially refused to countenance dramatically lowering interest rates in the way that the Federal Reserve had done and continued to be fixated with preserving low inflation by raising interest rates, which benefitted the German economy, but only made matters infinitely worse for the struggling debtor countries. Greece’s debt crisis could perhaps have been remedied early on by the ECB purchasing Greek debt. But instead, multiples bailout were agreed by the IMF and European leaders for Greek’s creditors, along with strict program of austerity: structural reform, tax increases and a dramatic reduction on public spending, amidst mounting protests from the Greek public. When Angela Merkel and Nicholas Sarkozy agreed that any new debt assumed by Member States would have conditions for early debt restructuring, requiring private creditors to bear most of the losses rather than the public taxpayer, the then President of the ECB, Jean Claude Trichet, persuaded Merkel to drop the plan.

 

When finally forced into action, the EU clung to the traditional right-wing solutions of ‘fiscal consolidation’ demonstrating the depth of its ordo-liberal commitments. Intense programs of austerity were also implemented in Ireland, Italy, Spain and Portugal. Austerity directly contradicts Keynesian economic response to recessions by radically reducing public expenditure to produce economic growth. Proponents of austerity (such as the IMF) argue that reducing government deficits inspires confidence, prompting greater private investment and resulting in economic recovery. But, as economist Joseph Stiglitz writes: “how this is happens has never been explained. Out in the real world, the confidence theory has been repeatedly tested and failed.”

 

The problems with austerity are well-documented: in order to create economic growth, there must be consumption. Economic uncertainty discourages investment. Wage cuts, redundancies and cutbacks to public services discourage spending; the natural instinct is for individuals to save. This produces a fall in demand for goods and services, and the economy contracts. The ‘structural reforms’ which accompany austerity in the name of ‘labour flexibility’ make it easier for workers to be dismissed, and incentivises the creation of insecure, low-wage employment. Austerity is not even good at doing what it is supposed to do: it is a highly ineffective means of tackling public debt, and it can take decades of redirected public money towards servicing debt repayments when economic growth through public expenditure, targeted tax on capital or a moderate rise in inflation would address the issue far more swiftly.

Austerity disproportionately harms those who rely most on public services: the lower middle classes, the working class, and the impoverished. Philip Boucher Hayes’s excellent documentary has recently brought renewed attention to the devastating human cost of austerity in this country. Austerity in many ways is a beguilingly simple idea. These Member States, the narrative went, had run out of money, and borrowing or spending during financial hardship was counter-intuitive. It is easy, when likening governments to households, to characterise spending during a recession as irresponsible. But there is a world of difference between macro-economic policy and personal financial management. Households do not have the internal capacity to lower their own interest rates, to buy their own debt or take any of the significant steps that a central governing body can do in response to recession. The language of ‘balancing books’ belongs to personal accountancy: states can and do run budget deficits, particularly during times of financial hardship.

 

Yet it was repeatedly stressed by European officials that there was no alternative to austerity, and that it was the sole means of tackling the Member State’s national debt.  Not only was that not true (as noted above, there are far better and more effective means of tackling public debt) but its premise was false. It created the impression in the minds of the public that the meltdown of the global system had been caused – or certainly contributed to by – excessive public spending by national governments. Generous welfare programs had not caused the global financial meltdown. The reason that countries such as Ireland and Spain had inflated deficits after 2008 was largely because they had shouldered the cost of bailing out the banking system.

 

The use of the term ‘sovereign debt crisis’ was a misnomer, it was, instead, a banking crisis that had been “generated by the private sector but [was] being paid for by the public sector” (Mark Blyth, Austerity: The History of A Dangerous Idea (Oxford University Press, 2013) p. 62). Even Eurozone countries which had no need to adopt austerity policies began to do so, and these “cascading effects caused other member state economies to slow down as well [and] pushed the eurozone into a collective economic downturn” (Ashoka Mody, Eurotragedy (Oxford University Press, 2018) p.286). All in all, the European Union took nearly six years longer than the United States to recover from the economic downturn.

 

Covid-19 and European Union

During the Euro Crisis, resistance to austerity was characterised a denial of reality; a failure to accept what was the only means of tackling the crisis. But it seems as though there has been a remarkable shift in thinking. Traditional advocates for austerity – such as the IMF – are now recommending government spending as the best means to tackle the consequences of the Covid-19 pandemic.

 

In March 2020, European Union fiscal lending rules were suspended entirely by the European Council, who invoked the general escape clause in the Stability and Growth Pact, noting that “flexibility” was needed through “discretionary stimulus” to cope with the economic fallout from the pandemic. The European Commission has recently suggested that this could last into 2022. Ordinarily, budgetary deficits cannot be greater than 3% of GDP or public debt larger than 60% of GDP. The 2011 Fiscal Compact Treaty further mandated Member States to avoid budget deficits by running a surplus or keeping their budgets balanced. Those rules have been abandoned, in favour of mass government spending through income supports for individuals and industries, and investment in public services, particularly health.

 

The transition is remarkable. The European Union is approaching the Covid-19 pandemic in a radically different way, accepting that spending – not austerity – is the best means of salvaging Europe’s economies from the wreckage of Covid-19. This is a welcome approach, not least because it seeks to buffer the European public from the worst of a crisis which was not of their making. According to Keynesian thinking, cutting tax rates or boosting public expenditure creates a ‘multiplier effect’ as individuals have more money to spend or invest, which stimulates economic recovery. 

 

The threat of raising income tax rates and curbing public spending to ‘pay for’ Covid would be misguided, not least when the government can benefit from record levels of cheap borrowing. Now is the time for the State to undertake major investment in areas such as housing, healthcare and education, and to make major inroads in tackling climate change. These investments will be particularly necessary to bridge divisions that the pandemic has sharpened. Many in the professional classes who can work from home have kept their income and have record levels of savings. By contrast, many small and medium sized businesses, the self-employed, those working in sectors such as hospitality, tourism, entertainment and retail have been financially devastated. These sectors are also more likely to employ young people, who were already struggling with a housing crisis and own a tiny fraction of this country’s wealth.

 

Even before the pandemic, economist Thomas Piketty was able to demonstrate in meticulous detail that the world was experiencing drastic levels of income inequality akin to a new Gilded Age. This has led to mounting awareness that the wealthy have simply not paid their fair share, aided by low corporate taxes and systems of tax havens. A major welcome development is US Treasury Secretary Janet Yellen’s plan for a global corporation tax - especially as targeted measures aimed at improving the fortunes of the bottom are far more likely to be spent and reinvested in the economy than tax breaks for the wealthy. Ireland will have to rethink its own approach to corporate taxation: Deputy Joe O’Brien’s suggestion for a once-off solidarity tax is strong start.

 

Economist David McWilliams wrote recently that there is a monetary revolution underway, as the Biden administration appears to be embarking on the kind of Keynesian fiscal stimulus not witnessed since Roosevelt’s New Deal. But there is also a European constitutional revolution underway. How do the European Union’s actions square with its founding document, the Maastricht Treaty? The answer is they do not. If its foundational economic principles are perpetually suspended during a crisis, it is a fairly damning acknowledgment that they are not fit for purpose.  Europe has implicitly abandoned ordoliberalism and its reliance on austerity and reached for the Keynesian handbook. We are witnessing a form of de facto constitutional change, an abandonment of the principles Europe claimed it could not budge from during the Euro Crisis. This suggests that the European Union is beginning to acknowledge what many have argued: its underpinning economic ideology does not work, at least not without inflicting immense human suffering. 

 

Hilary Hogan is a Ph.D. candidate at the European University Institute in Florence. Her research examines the link between economic liberalism and the rise of populism in the wake of the 2008 Financial Crisis.

Suggested citation: Hilary Hogan, ‘Covid-19 & New Economic Ideology for the European Union?’ COVID-19 Law and Human Rights Observatory Blog (27 April 2021) https://tcdlaw.blogspot.com/2021/04/covid-19-new-economic-ideology-for.html

Balancing the Interests of Landlords and Tenants: The Quiet Unravelling of COVID-19 Protections

Rachael Walsh, Trinity College Dublin 

 

Introduction

Preventing evictions in the context of the COVID-19 crisis was originally conceived of as a public health measure, which in March 2020 was deemed by the legislature to merit a blunt prohibition on all evictions. This was aimed at preventing additional movement in the community caused by the need to find alternative accommodation and a potential increase in the numbers of people living in dangerous congregated settings such as hostels and family hubs. However, in the aftermath of Ireland’s first lockdown, legal and political concerns quickly surfaced about the need to finesse such protections to better protect landlords’ constitutionally guaranteed property rights. Since then, there has been a progressive contraction in tenant protections. A complex legislative scheme has emerged in a piece-meal way, involving multiple enactments and amendments in just over 12 months, aimed at balancing the interests of landlords and tenants in the context of the ongoing public health crisis. 

 

Current COVID-19 Protections for Tenants

Two strands of tenant protection currently exist in Irish law in response to the COVID-19 crisis. The first, analysed in a previous post, is a general moratorium on evictions that automatically comes into effect pursuant to s. 2 of the Residential Tenancies Act 2020 whenever the Minister for Health ‘makes relevant regulations which impose restrictions on travel outside a 5 kilometre radius of a person’s place of residence’. That provision does not prevent rent increases during such an ‘emergency period’. The 2020 Act has been amended by the Residential Tenancies Act 2021 to exclude evictions that are based on the non-payment of rent or other charges due under the terms of a lease by a tenant. This amendment added to the initial exclusions that applied in respect of anti-social behaviour, behaviour that threatens the physical integrity of rented premises or compromises insurance, and behaviour that involves the use of rented premises for purposes other than those provided for under the terms of the lease without the landlord’s permission. The Residential Tenancies Act 2021 was explained in its Explanatory Memorandum as aiming to further protections for tenants in the context of COVID-19 while also recognising and balancing the constitutional property rights of landlords. The Minister for Housing made repeated references to the need to protect property rights in explaining and defending the Bill in the Dáil. 

 

Travel within one’s county is permitted as of 12^th April 2021, which marks the end of the general moratorium on evictions that was in place pursuant to the Residential Tenancies Act 2020. A ten-day grace period will run out on 22nd April 2021, allowing notices of termination to take effect from 23^rd April onwards in accordance with the terms of the Act. Thereafter, to be protected against eviction on grounds of non-payment of rent, a tenant must avail of the protections under the Planning and Development, and Residential Tenancies Act 2020(the PDRTA), which was enacted on 19th December 2020. The core tenant protections that it created were due to expire on 12th April 2021 but were extended by the Residential Tenancies Act 2021 until 12th July 2021. Part 3 of the PDTRA developed the ‘hardship’ protections for tenants that had initially been enacted in August 2020 through the Residential Tenancies and Valuation Act (at that stage as a replacement for the general moratorium on evictions that had been in place during the first wave of COVID-19 in Ireland). 

 

Under Part 3 of the PDTRA, a tenant can self-declare to the Residential Tenancies Board (RTB) that he/she is or was in receipt of the temporary wage subsidy or other COVID-19 related payment and is at risk of having their tenancy terminated due to non-payment of rent. The tenant must then formally seek the assistance of the RTB in obtaining advice in respect of managing their arrears, and must also seek engagement from their landlord to negotiate a payment plan. Where a tenant satisfies the relevant criteria and follows the detailed procedural steps set out in the PDRTA, the earliest date that a notice of termination could take effect is 12th July 2021 and no rent increases could be imposed during that period. 

 

However, there are significant exclusions under the PDTRA in addition to the active steps required to be taken by tenants to avail of protection. If on 10^th January 2021, a tenant was in arrears for 5 months or more, or an aggregate of 5 months, the tenant is excluded from protection. Equally if the tenant fails to provide necessary information to the RTB to enable it to provide advice to the tenant, PDTRA protections are disapplied. Furthermore, the protections cease to apply to a tenant where a landlord declares to the RTB that the 5-month limit has been reached in respect of arrears, or there has been a failure to comply with a revised payment plan, or that the landlord would suffer ‘undue hardship’ if the rent was not paid during the relevant emergency period. In this respect, a landlord can self-declare to the RTB if in receipt of COVID-19 related welfare support from the State, or where the rent in question is the sole or main income received by the landlord, or where the property in question is mortgaged and repayments will not be possible if rent is not paid during the emergency period. Presumably when faced with declarations of hardship from both a landlord and a tenant in respect of a given rented property, the RTB has the difficult task of determining whose risk of hardship is greater. The issue of conflicting claims of hardship is not expressly addressed in the PDTRA, but it appears that if the landlord’s hardship claim is accepted by the RTB, that will exclude a tenant from protection under the Act. 

 

Conclusions

The effect of the Residential Tenancies Act 2021 is that most tenants in the private rental sector will soon be unprotected against eviction, since the general moratorium on evictions will no longer apply as of 23^rd April 2021. Furthermore, even if that general moratorium is restored in the event of a future 5km travel restriction, it will no longer capture tenants who are at risk of eviction due to non-payment of rent. In this context, it is worth noting that 33% of the disputes that the Residential Tenancies Board dealt with in Q3 of 2020 concerned rent arrears. 

 

Tenants who cannot, or may not, be able to pay their rent due to COVID-19 are now required to avail of the protections under the PDRTA. The tenant protection scheme established under the PDRTA is complex and imposes onerous requirements on tenants: first, working out that they satisfy the complex criteria for protection under the Act; second, issuing the appropriate declaration and supporting information to the RTB; third, issuing a formal notice to their landlord and engaging with the landlord; fourth, engaging with arrears support services as directed by the RTB. It is perhaps unsurprising, therefore, that take-up of that protection has been extremely limited, with only 407 tenants protected since the initial hardship scheme came into force in August 2020.

 

The aim of avoiding overlap between the general moratorium on evictions and the scheme for protecting tenants in arrears – or, as the Explanatory Memorandum puts it more obliquely, enhancing the ‘interoperability’ of those tenant protection schemes – is not per se objectionable. However, given the complexity of the PDRTA scheme and the time involved for a tenant in meeting the various requirements that it imposes, many vulnerable tenants may find themselves suddenly without protection against eviction due to the recent legislative changes. This raises the prospect of a significant increase in evictions occurring at a time when the public health situation remains precarious and the vaccine rollout has not reached large swathes of the population, in particular younger people who are more likely to be renting. 

 

That state of affairs, if achieved as suggested by the Minister for Housing to protect the constitutional property rights of landlords, pays insufficient attention to Article 43.2 of the Constitution’s injunction that the State delimit the exercise of property rights to secure ‘the principles of social justice’ and to reconcile property rights with ‘the exigencies of the common good’. In the context of an ongoing global pandemic, the quiet unravelling of tenant protections could have been postponed until the public health situation improved without entrenching disproportionately on the constitutionally protected property rights of landlords. 

 

Rachael Walsh is an assistant professor of law at Trinity College Dublin.

 

Suggested citation: Rachael Walsh, ‘Balancing the Interests of Landlords and Tenants: The Quiet Unravelling COVID-19 Protections’ COVID-19 Law and Human Rights Observatory Blog (22 April 2021) https://tcdlaw.blogspot.com/2021/04/balancing-interests-of-landlords-and.html

 

 

 

The evolution of legal prohibitions on religious services

Oran Doyle, Trinity College Dublin

 

Introduction

Legal prohibitions on religious services have been much in the news lately. In this unavoidably lengthy post, I will show how these prohibitions have evolved over time in order to identify precisely what changes have been recently introduced. I break the past year down into four broad time periods. I then explore some public commentary and the legal prohibitions on other types of event, in order to make more sense of rationale for the recent changes and the manner in which they were introduced. This analysis will illustrate broader concerns about the Government’s response to the pandemic.

 

The Spring 2020 lockdown

The original regulations (SI 121/2020) applied from 8 April 2020 to 8 June 2020, being amended on several occasions during that period. Regulation 4(1) provided that it was a criminal offence to leave one’s home without a reasonable excuse. Regulation 4(2) provided a list of reasonable excuses that was without prejudice to the generality of ‘reasonable excuse’ in regulation 4(1). Among the listed reasonable excuses in regulation 4(2) were the following:

 

(o) in the case of a minister of religion or priest (or any equivalent thereof in any religion) -

(i) lead worship or services remotely through the use of information and communications technology,

(ii) minister to the sick, or

(iii) conduct funeral services,

 

Regulation 5(1) made it a criminal offence for anyone to attend an event unless it was a ‘relevant event’. Relevant event was defined as ‘an event held for the purposes of any matter which falls within any subparagraph of Regulation 4(2)’. In other words, the listed reasonable excuses in regulation 4(2) exhaustively determined the events which it was permissible to attend. Therefore, the only permissible religious events were leading services remotely, ministering to the sick, and conducting funeral services.

 

Summer 2020 easing

On 8 June 2020, major changes were made to the scheme of restrictions, previously analysed here. Rather than a general prohibition on leaving your home that also determined what events could be lawfully attended, the new approach prohibited (a) certain types of movement, (b) the holding of certain types of event, and (c) public access into certain types of premises where businesses were conducted or services provided. There were no restrictions on moving for religious purposes.

 

Regulation 6(1) prohibited the organisation of events for cultural, entertainment, recreational, sporting, social, community or educational reasons, unless the maximum numbers of people did not exceed 15. Events of other types were not prohibited. 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 followed, given section 19 of the Interpretation Act 2005, that events for religious reasons were not prohibited by the regulations and could lawfully be held indoors without any restriction on numbers.

 

A third set of regulations was introduced on 30 June, which applied in most counties until September. These regulations removed all movement restrictions but continued the same approach in relation to events. Regulation 5 provided that a person could not organise, or cause to be organised, an event for cultural, entertainment, recreational, sporting, social, community or educational reasons. Again, it was clear that there was no prohibition or numbers-restrictions on religious events.

 

During this period, stricter regulations applied for a time to Laois, Offaly and Kildare. This involved prohibitions on leaving one’s county without a reasonable excuse. Again listed among the specified reasonable excuses was:

 

(k)  in the case of a minister of religion or priest (or any equivalent thereof in any religion) - 

(i)  lead worship or services remotely through the use of information and communications technology, 

(ii)  minister to the sick, or 

(iii)  conduct funeral services,

 

But importantly this could not have implied any limitation on the holding of religious events as there was no general prohibition on leaving one’s home, only leaving one’s county.

 

As with the countrywide regulations, the regulations for Laois, Kildare and Offaly prohibited the organisation of events for cultural, entertainment, sporting or community reasons, while allowing indoor and outdoor versions of these events subject to much stricter criteria. Again, there was no prohibition on religious events.

 

Autumn 2020 tightening

From September to October, restrictions were gradually tightened across the whole country, with more restrictive regimes at times for Dublin and Donegal. These regulations again prohibited the holding of ‘relevant events’, unless certain number limits were observed—with lower number limits for certain specified counties. A ‘relevant event’ was defined as ‘an event held … for social, recreational, exercise, cultural, entertainment or community reasons.’ Again, events for religious reasons were clearly not included within the definition of relevant events and therefore not prohibited. Stricter restrictions were applied to particular counties, including at some points again a prohibition on leaving one’s county without reasonable excuse, with the same listed excuses for ministers of religion or priests. In mid-October, this ban on movement was applied to all counties. But for the same reasons as above, this could not have implied any prohibition on religious events as there was no prohibition on leaving one’s home provided one remained within one’s county.

 

Winter 2020-2021 lockdown

On 22 October 2020, the state went into a renewed lockdown. This was eased during December, with disastrous consequences, and returned at the end of December lasting until mid-April 2021, when there was a very slight easing. Apart from the December period, the same prohibition on ‘relevant events’ applied, which did not include events for religious reasons. And there was again a criminal prohibition on leaving one’s home without reasonable excuse. One of the listed reasonable excuses for leaving one’s home was as follows:

 

in the case of a minister of religion or priest (or any equivalent thereof in any religion) - 

(i)  lead worship or services remotely through the use of information and communications technology, 

(ii)  minister to the sick, or 

(iii)  conduct funeral or wedding services,

 

Between mid-October 2020 and mid-April 2021, with the exception of the December period, there were two possible grounds on which it could be argued that religious services were prohibited: first, as a relevant event; second, as an aspect of the ban on leaving one’s home without a reasonable excuse. I have already explained in detail in an earlier post why the first is untenable and the second unconvincing, particularly in light of the interpretative principle that criminal liability must be clearly imposed. Given the Minister’s very clear decision to permit events for religious purposes, it is difficult to argue that it cannot be a reasonable excuse to leave one’s home to attend such an event. This is reinforced by a comparison between the Spring 2020 lockdown and the Winter 2020-21 lockdown. In the former, the class of prohibited events was directly linked to the specified reasonable excuses for leaving one’s home. In the latter, the decision was taken to break the link between prescribed reasonable excuses and permitted events, undermining any interpretation that you cannot leave your home to attend an event that is otherwise permitted, unless it is listed as a prescribed ‘reasonable excuse’.

 

During the December period, matters were more relaxed. The ban on relevant events continued but with some exceptions. The restriction on leaving one’s home without a reasonable excuse was replaced with a restriction on leaving one’s county without a reasonable excuse, which was itself suspended for a period. It was a reasonable excuse for priests and ministers to leave their home to lead worship or services, without the qualification of ‘remotely through the use of information and communications technology’, although this was tightened again as of 25 December 2020. These changes in wording were not made in the context of a prohibition on people leaving their homes but rather in the context of a prohibition on people leaving their counties. They therefore do not shed much light on what should count as reasonable excuses for leaving one’s home.

 

Public perceptions

On 9 June 2020, the Observatory published a blogpost pointing out that religious services were no longer prohibited. Nevertheless, public debate seemed to proceed on the basis that they were prohibited. Personally, I found it quite difficult to disentangle whether the people involved (primarily government and NPHET officials, religious representatives and media commentators) either (a) realised that there was no legal prohibition and were involved in a discussion about what the public health advice should be or (b) were operating under a misapprehension about the legal position. Of course, it is possible that some participants realised there was no legal prohibition while others thought there was a legal prohibition. The Observatory raised this issue in itssubmission to the Special Oireachtas Committee on COVID-19 Response, our interpretation at that point being that the removal of legal prohibitions on religious services appeared to be accidental and that NPHET and others had not realised that religious services were no longer legally prohibited.

 

As we moved into the Winter 2020-21 lockdown, there were two important Government statements about the position on religious services, both of which I analysed in my earlier post: the Minister’s statement to the Dáil that there was no penal prohibition on attending religious services and the Department of Health’s statement to thejournal.ie that there was no penalty attached to religious events because they were not included in the definition of ‘relevant event’.

 

Other classes of prohibited events

To complete the picture, it is important to note that the regulations have prohibited or restricted other types of events: household events, sporting events, training events, weddings / wedding receptions, funerals.

The Regulations have been quite confused in their terminology around ‘weddings’ and ‘wedding receptions’, making it unclear whether they are to be viewed as a composite category, or whether different restrictions apply to weddings as distinct from wedding receptions.

 

Funerals have been restricted to limited numbers. It might be thought that this explicit allowance of funerals with limited numbers implies that other religious services are prohibited entirely. But an equally plausible interpretation is that, given cultural norms around funerals, a criminally enforceable restriction was thought necessary whereas no criminal measure was thought necessary for religious services.

 

The most recent changes

On Saturday 10 April, the Minister for Health made SI 168/2021, which came into force on Monday 12 April. This removed the prohibition on leaving one’s home without a reasonable excuse, replacing it with a prohibition on leaving one’s county or a 20km radius from one’s home without a reasonable excuse. This deleted the only arguable—although far from convincing—basis on which it could be contended that religious services were prohibited. The prohibition on relevant events continued, although now with an exception for members of two households meeting outdoors. Without doubt, this did not cover religious events.

 

On Monday 12 April, the Minister made SI 171/2021 which inserted Regulation 10A. This needs to be set out in full: 

 

10A. (1) A person shall not attend a specified event in a relevant geographical location (regardless of whether or not, in the case of an applicable person, the event is held or to be held in his or her relevant travel area) other than in accordance with paragraph (2). 

(2) A person may attend a specified event in a relevant geographical location where the person attends the event in order to – 

(a) work, comply with a contract of employment or contract for services, or otherwise engage in work or employment, including work related to – 

(i) the provision of services to, or the performance of the functions of, an office holder appointed under any enactment or under the Constitution, or a member of either House of the Oireachtas, the European Parliament or a local authority, 

(ii)  the provision of services essential to the functioning of diplomatic missions and consular posts in the State, and 

(iii)  farming or agricultural activities, 

(b)  participate in education, including education at a primary school, a secondary school, a university, a higher education institution or other education and training facility, crèche or other childcare facilities, 

(c)  go to an essential retail outlet for the purpose of obtaining items (including food, beverages, fuel, medicinal products, medical devices or appliances, other medical or health supplies or products, essential items for the health and welfare of animals, or supplies for the essential upkeep and functioning of the person’s place of residence), or accessing services provided in the outlet, for the applicable person or any other person residing in the person’s place of residence, 

(d)  access an essential service, 

(e)  fulfil a legal obligation (including attending court, satisfying bail conditions, or participating in ongoing legal proceedings), attend a court office where required, initiate emergency legal proceedings or execute essential legal documents, 

(f)  in the case of a minister of religion or priest (or any equivalent thereof in any religion) – 

(i)  lead worship or services remotely through the use of information and communications technology, or 

(ii)  minister to the sick, or 

(g)  attend to vital family matters (including providing care to vulnerable persons). 

(3) This Regulation shall not apply to an event that is organised in accordance with Regulation 6(2), 6(3) or 10(1). 

(4) In this Regulation, “specified event” means an event other than - 

(a)  a wedding reception, 

(b)  a sporting event, 

(c)  a training event, or 

(d)  a funeral. 

(5) Paragraph (1) is a penal provision for the purposes of section 31A of the Act of 1947.

 

Disentangling what events this provision applies to is far from straightforward. We must first go back to the definition of ‘event’ in the primary statute:

 

a gathering of persons, whether the gathering is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, religious or other reasons…

 

From this, we must subtract dwelling events (covered by regulations 6(1) and 6(2)), events for social, recreational, exercise, cultural, entertainment or community reasons (the ‘relevant events’ covered by regulation 10(1)), and wedding receptions, sporting events, training events and funerals).

 

What is left is commercial, work, educational, religious and other events. However, Regulation 10A(2) allows one to attend a specified event in one’s county or 20km limit in order to work or participate in education. So this leaves commercial, religious and other events. 

 

But there are already significant restrictions on commercial activities, in that the owners, occupiers and managers of premises are prohibited, subject to criminal sanction, from permitting members of the public to access those premises unless they are an essential retail outlet or provide an essential service, defined in the Schedule to the Regulations. The only thing left is religious and other events, but it is entirely clear what ‘other events’ might be. 

 

In short, it is difficult to see that Regulation 10A accomplishes anything other than impose a criminal prohibition on religious services. Almost the same end could have been achieved by amending the definition of ‘relevant event’ to include ‘religious reasons’ and deal with them through Regulation 10, but this would have made the change clear in two words, compared to the 200 words it has taken me here.

 

I say ‘almost the same end’, because prohibiting religious events through regulation 10A rather than regulation 10 has resulted in the important difference that religious events are prohibited outdoors, while relevant events are now permitted outdoors so long as they only involve people from no more than two different households. This has the result that if a priest were to meet a parishioner for outdoor confession, they would both be committing a criminal offence; whereas, if two people were to meet for a chat or to exercise, they would not be committing a criminal offence. The differential criminalization of facially similar religious and non-religious activities probably makes regulation 10A more vulnerable to legal challenge. 

 

Regulation 10A appears designed with the sole purpose of criminalizing religious services, while concealing that sole purpose through a bizarrely and unnecessarily convoluted scheme of legislative cross-references.

 

Why the new law now?

It seems to me that there are two possible explanations for the introduction of Regulation 10A. The first is that the Government believed (mistakenly, in my view) that the prohibition on leaving one’s home without reasonable excuse implied a prohibition on attending in-person religious services. The Government was sufficiently confident in this position to communicate it in a letter to Mr Declan Ganley at the end of March and yet accidentally removed the criminal prohibition a few days before the position articulated in that letter would be presented to the High Court. Realising its mistake, the Government then hurriedly introduced Regulation 10A to re-impose a criminal prohibition on religious services. This is implausible. It is also difficult to square with the Government’s earlier statements that no penalty attached to religious events.

 

While we must be cautious about attributing motivations, the more likely explanation is that the Government has known all along that religious services are not criminally prohibited. The Ganley litigation caused an accountability moment where the Government either had to create a legal basis for maintaining in court that religious services were criminally prohibited, or accept that religious services had not been criminally prohibited. The Government chose the former option. The new-found clarity is welcome from a rule of law perspective and allows an informed debate on whether the law is a proportionate and coherent response to the pandemic. But the obfuscation up to this point and the continued obfuscation about the reason for introducing the new restrictions is a damning indictment of the Government’s willingness to lead citizens through the pandemic in a way that respects citizens’ autonomy and capacity for reasoned choice. It suggests instead a preference for vaguely articulating a desired standard of behaviour and then tricking citizens into compliance through calculated ambiguity about the dividing line between legal obligations and public health advice.

 

Oran Doyle is a professor in law at Trinity College Dublin and director of the COVID-19 Law and Human Rights Observatory.

 

Suggested citation: Oran Doyle, ‘The evolution of legal prohibitions on religious services’ COVID-19 Law and Human Rights Observatory (21 April 2021) https://tcdlaw.blogspot.com/2021/04/the-evolution-of-legal-prohibitions-on.html