April 2021 Easing of COVID-19 Restrictions: Law and Guidance

Oran Doyle, Trinity College Dublin

 

Introduction

The Government yesterday published the Regulations (SI 168/2021) that take effect today, 12 April 2021, easing the COVID-19 restrictions somewhat. The Observatory will publish an updated consolidation of the Regulations soon. These Regulations exist alongside the official Government guidance, also updated yesterday. Consistent with the Government’s general approach since the start of the pandemic, the guidance does not distinguish between what is legally required and what is public health advice. For the most part, the guidance adopts the sort of language that would lead a reader to believe that the Government is communicating legal obligations: for instance ‘no visitors are permitted in private homes or gardens’. However, in several important respects what is contained in the guidance differs from what is legally prohibited. In this blogpost, I will outline the principal legal changes that have been made. I will then identify the respects in which the guidance departs from the law.

 

Travel within county and/or 20km of residence now permitted

In the previous Regulations, it was a criminal offence to leave your home without a reasonable excuse. This is no longer the case. Rather, regulation 4(1) makes it a criminal offence to travel outside your ‘relevant travel area’. Regulation 3 defines ‘relevant travel area’ as the county in which your place of residence is located and other places that lie within a 20kn radius of your place of residence. ‘County’ has the same meaning as the Local Government Areas listed in the Local Government Act 2001 as amended, but the four Dublin LGAs, the two Galway LGAs, and the two Cork LGAs are each respectively a county for ascertaining your travel area.

 

The previous Regulations provided a list of specified reasonable excuses for which a person could leave her home, without prejudice to the generality of the general ‘reasonable excuse’ category. Under the new Regulations, nearly all of these are now reasonable excuses to leave your relevant travel area. You can leave your home for any reason you wish. The one reasonable excuse that has not been carried over is the 5km exercise provision. As you can now leave your home and travel more than 5km for any reason, it would make no sense to limit exercise to within 5km of your home. Meeting others outside is therefore now regulated under the restrictions on events, rather than through a restriction on leaving your home.

 

Organisation of outdoor events

Regulation 10 allows people to organise events in their own relevant travel area, provided the event takes place entirely outdoors and the person takes reasonable steps to ensure that only people from her own household and one other household attend. 

 

Indoor events for fully vaccinated people

Under regulations 6(3) and 9(1) fully vaccinated people from no more than two households can organise and attend events in one another’s homes. Regulation 3 provides a lengthy definition of ‘vaccinated person’ with reference to the precise vaccine used, the interval between the two doses (where appropriate), and period after the final vaccination (7, 14, or 15 days depending on the vaccine). Crucially, the vaccine must be administered as part of the HSE programme. People vaccinated outside the State do not fall within the definition and therefore do not benefit from this allowance. This will be an important point to watch if greater freedoms are brought in for fully vaccinated people as the easing of covid restrictions continues. The Government will probably need to develop some scheme for recognition of vaccinations that occur in other countries.

 

Sporting and training events

Regulations 12(3) and 13(3) introduce new provisions that allow Sports Ireland to provide certificates to allow people attend sporting or training events, where they have the potential to represent Ireland in sporting events at internationally competitive levels. Regulation 13(2) allows intercounty GAA to attend training events. These provisions do not come into effect until 19 April 2021.

 

Buying children’s shoes

Paragraph 18 of Schedule 1 Part 1 adds outlets that sell shoes for children to the list of essential retail outlets—if they provide shoe fitting services to children and if they operate on the basis of advance appointments. The import of this change is that (a) shops selling children shoes can now open, (b) you can make appointments with such a shop in your own area, and (c) you may leave your travel area to access such an outlet if it is not reasonably practicable to do so within your travel area. 

 

Construction activities permitted

Increased levels of construction activity are now permitted: construction and development of residential housing, including adaptation and remediation work, and support services; construction projects necessary for the Irish Prison Service; the construction or development of essential educational facilities, which will provide additional capacity for students, or involve essential maintenance or refurbishment works in support of the continued provision of education.

 

Divergences between guidance and law

Outdoor meetings

The Government guidance states that you can meet one other household outside but not in your garden or theirs. There is no law prohibiting you from meeting another household in your garden or theirs. The law only requires that the event be ‘outdoors’. There is no definition of ‘outdoors’ in the Regulations. It is untenable to suggest that a garden is not outdoors.

 

Construction

The Government guidance says that from 12 April 2021 all residential construction can resume, as well as early learning and childcare projects. This is incorrect in two different ways. First, there is no specific allowance for early learning and childcare projects. The language used is ‘essential education facilities at primary and post-primary level’, which would appear to preclude ‘pre-primary’ level. Second, there are other additions, as noted above, including for projects necessary for the Irish Prison Service.

 

Meetings of vaccinated people

The Government guidance states:

 

If 2 weeks have passed since you got your second dose of the vaccine, you can meet with other fully vaccinated people from 1 other household indoors without wearing masks or staying 2 metres apart. If you have received the second dose, you have to wait 2 weeks until you can meet other fully vaccinated people indoors.

 

This is incorrect insofar as it does not include the specification that you must have received your vaccination as part of the HSE programme. If you have returned to the State having been vaccinated abroad, you do not benefit from this exception.

 

This is an improvement on the situation last week, noted by David Kenny and me in a letter to the Irish Times,whereby the Government told fully vaccinated people that they could meet indoors but no legal exception had been introduced to that effect. Nevertheless, if vaccinated people did meet indoors last week, they remain liable to prosecution notwithstanding the subsequent change in the law.

 

Religious services

The Government guidance says:

 

Services will be held online. This will be reviewed by 4 May.

Places of worship remain open for private prayer.

 

It is not clear whether this is intended as a restriction on what can happen or a prediction of what will happen. I have previously addressed on this blog whether it could be argued that the Regulations restricted religious services (other than funerals). There were two such bases: the restriction on ‘relevant events’; the restriction on leaving one’s home without a reasonable excuse. The latter restriction no longer applies in the new Regulations: priests and worshippers may leave their home for any reason; they just cannot leave their travel area. The only possible ground of restriction, therefore, remains the restriction on ‘relevant events’. The definition of ‘relevant event’ remains the same as in the previous Regulations, i.e. it does not include events for religious purposes. It is therefore even clearer than before that the holding of religious services is not restricted, other than funerals for which the number attending is limited to 10.

 

Working outside the home

The Government guidance states:

 

Work from home unless essential for work, which is an essential health, social care or other essential service and cannot be done from home.

 

There is, however, no longer any legal requirement that you must work from home. Regulation 14 does impose an obligation on the premises controller, occupier, manager or other person for the time being in charge of a premises not to allow members of the public or workers access to a premises at which a business or service is carried out, unless it is an essential service or retail outlet. But there may be gaps between this obligation on the controllers of premises and the earlier general obligation on people not to work outside the home.

 

Conclusion

The latest Regulations ease the COVID-19 restrictions in limited but important ways. The Government continues to blur the distinction between law and public health advice in a way that is likely to mislead citizens as to the extent of their legal obligations. In most respects, the law is less strict than what the Government presents. In relation to meetings between vaccinated people and some construction work, the law is more strict than what the Government presents. For the reasons that have been advanced repeatedly on this blog and in the Report of the Irish Human Rights and Equality Commission, this offends the rule of law and corrodes public trust.

 

Suggested citation: Oran Doyle, ‘April 2021 Easing of COVID-19 Restrictions: Law and Guidance’ COVID-19 Law and Human Rights Observatory (12 April 2021) https://tcdlaw.blogspot.com/2021/04/april-2021-easing-of-covid-19.html