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

 

Religious Services and the Rule of Law: Authority and Coercion

Oran Doyle, Trinity College Dublin

 

Introduction

There have been further media reports of the gardaí threatening prosecution of those who organise or attend religious services. This is one of the principal rule of law issues identified in the recent report by the Irish Human Rights and Equality Commission, which I co-authored with Conor Casey, David Kenny and Donna Lyons. In this blog post, I review the two grounds on which it could be argued that a criminal offence is committed in this context, rejecting each. I shall contrast the current law to the position that applied during the first lockdown, in which religious services were unlawful. I shall then review several official statements on this issue before concluding with some observations about the rule of law.

 

Events

Section 31A(1)(d) of the Public Health Act 1947, as inserted by the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (the 2020 Act), gives the Minister for Health the power to make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19, including the prohibition of events or classes of events. Section 31A(16) 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. Section 19 of the Interpretation Act 2005 provides that a word or expression used in a statutory instrument has the same meaning in the statutory instrument as it has in the enactment under which the instrument is made.

 

Regulation 8 of the lockdown regulations – currently SI 701/2020 as amended – makes it a criminal offence for a person to organise a relevant event. (The Observatory maintains a consolidation of all the regulations here.) Regulation 2 defines ‘relevant event’ as an event held, or to be held, for social, recreational, exercise, cultural, entertainment or community reasons. It is beyond argument that ‘relevant event’ does not include events held for religious reasons; religious events are therefore not prohibited by Regulation 8. This interpretation is reinforced by a comparison with regulation 5, which simply prohibits events in dwellings—without any qualification.

 

Regulation 8 makes it a criminal offence to organise a funeral where the number of people attending exceeds 10. Regulation 9 makes it a criminal offence to organise a wedding reception – but not a wedding – unless the person takes reasonable steps to ensure the number of persons attending is no more than six.

 

Leaving one’s home

Regulation 4(1) makes it a criminal offence to leave one’s place of residence without a reasonable excuse. Regulation 4(2) provides a non-exhaustive list of reasonable excuses. The only relevant listed excuses are: 

 

(l) attend a funeral or a wedding; …

(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 or wedding services,

 

Could it be argued that these listed excuses imply that the general category of ‘reasonable excuse’ does not include leaving one’s house to organise or attend other types of religious service?

 

Such an argument is unconvincing. The Regulations take great care to define the class of prohibited events in a way that does not include religious events. This implies that it must be permissible to leave one’s home to organise and/or attend those events. By the same token, leaving one’s home to attend a wedding reception is not a stipulated reasonable excuse under regulation 4(2). But what would be served by regulation 8 explicitly allowing six people attend wedding receptions if it is not a reasonable excuse—through regulation 4(1)—to leave one’s home to attend a wedding reception? In other words, any vagueness of the general ‘reasonable excuse’ in regulation 4(1) should be resolved in a way that coheres with what is permitted by the other regulations. Any doubt on this point is resolved by the general legal requirement to give a strict construction to provisions that impose penal sanctions.

 

The original lockdown regulations

It is instructive to compare the current law with that which applied during the first lockdown, previously analysed here.

 

SI 121/2020 had a similar general prohibition on leaving one’s residence without a reasonable excuse in regulation 4(1), with a non-exhaustive list of reasonable excuses in regulation 4(2). Regulation 5 prohibited organising or attending an event unless it was a ‘relevant event’, defined as any event ‘held for the purposes of any matter which falls within any sub-paragraph of Regulation 4(2)’. In other words, the non-exhaustive reasonable excuses for leaving one’s home exhaustively set the scope of permissible events.

 

This legislative framework would support the argument canvassed at the end of the last section, i.e. relying on the defined reasonable excuses to determine what events one can leave one’s home in order to attend or organise. The fact that the current regulations have rejected this framework, however, is relevant legislative history that undermines the argument canvassed above.

 

Prosecutorial confusion

On Friday 6 March, RTE reported that the Archdiocese of Dublin had advised priests not to give communion to parishioners after Mass, either inside or outside churches. The Archdiocese is entitled to give such advice, as indeed would be the Government. But the advice appears to have followed pressure from the gardaí. The Archdiocese stated:

Drive-in masses are not permitted as no gatherings of people outdoors or indoors are permitted.

If this is intended to be a statement of the legal position—and it is difficult to read it any other way—it is categorically incorrect, for the reasons stated above.

 

This echoes a previous controversy from last November—when the relevant law was the same—in which the gardaí threatened to prosecute a priest in Cavan for saying Mass. The Irish Times reported:

 

Fr Hughes confirmed that the gardaí had told him this was his last warning and if he was caught celebrating Mass again with people in the church, a file would be sent to the Director of Public Prosecutions and he would be prosecuted. He said gardaí had told him the penalty was a fine of up to €2,500 or six months in jail.

 

Again, this statement of the legal position was categorically incorrect.

 

Government statements

In the Dáil debate on the extension of the 2020 Act, Michael MacNamara TD stated that priests would be committing a criminal offence if they opened the doors of their churches for Mass. The Minister for Health assured the house that religious services were non-penal and there was no penalty attached to them. Deputy MacNamara responded that this was untrue. The Minister responded that he had signed the regulations the previous night and could assure the House that it was a non-penal provision and would remain thus.

 

Both Deputy MacNamara and the Minister were incorrect. Conducting religious services was not a criminal offence, but this was simply because it was not covered by the Regulations at all, whether as a penal or non-penal provision.

 

There followed some public controversy and two weeks later, the Department of Health issued a statement to thejournal.ie. It is instructive to set out this statement in full:

 

There is no penalty attached to religious events because they are not included in the definition of “relevant event” for the purposes of Regulation 8.

 

Regulation 8 provides for restrictions on the organisation of a ‘relevant event’. A ‘relevant event’ is defined at Regulation 4 as ‘…. an event held, or to be held, for social, recreational, exercise, cultural, entertainment or community reasons…’. A relevant event does not include an event held for religious reasons.

 

One of the reasonable excuse for leaving one’s home listed in Regulation 5 is (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. This list of reasonable excuses is non-exhaustive.

 

The Government’s strategy Resilience and Recovery 2020 – 2021: Plan for Living with Covid contains a five-level Framework of Public Health Measures which sets out the types of activities can continue and those that will be curtailed at different points in time, depending on the level of virus transmission. At all times, the overarching priorities continue to be the protection of the most vulnerable and the protection of essential public services of education and health and social care.

 

In particular, the Framework provides for restrictions on gatherings of people indoors given the higher risk associated with these types of activities. Under the Framework, religious services can take place on site (with appropriate protective measures) during Levels 1 and 2 and they are required to move online in Levels 3, 4 and 5.

 

Weddings and funerals are exceptions and can continue at every level with limited numbers.

 

Churches and other places of worship can remain open for private prayer. It is also important to note that at all levels, Ministers of Religion are permitted to travel to perform a service on-line, to minister to the sick, and conduct a funeral or wedding ceremony.

 

This statement is a masterpiece of misdirection. In the first three paragraphs, the Department correctly sets out the legal position as I have summarised it above. The statement—issued while the country was in ‘Level 5’—then seamlessly moves to a discussion of the Government’s five-level ‘Framework of Public Health Measures’ and talks about measures that ‘can continue’ and measures that ‘will be curtailed’, ‘restrictions on the gatherings of people indoors’, and that ‘religious services … are required to move online in Levels 3, 4 and 5.’ Emphases added.

 

The statement is only coherent if we interpret the permissions, curtailments, restrictions and requirements of the last five paragraphs as public health advice. Otherwise, they contradict the first three paragraphs. But the language used appears calculated to create the opposite impression, i.e. that they are mandatory and therefore by implication legal requirements—since the state needs a legal basis to restrict people’s freedoms.

 

In these circumstances, it is scarcely surprising that gardaí around the country have formed the mistaken belief that religious services are legally prohibited.

 

The rule of law

The permissibility of restricting religious services is an important issue, which will be addressed on this blog later this month by Dr Eoin Daly. But if we focus exclusively on the permissibility of particular restrictions in the Government’s COVID response, we are in danger of missing the wood for the trees. Once we step back from immediate controversies, we see that at the core of the Government’s response lie not restrictions on activities but rather confusion over the extent to which activities are restricted. Rather than clearly distinguish between what citizens are required to do and what they are requested or advised to do, Government statements frequently encourage people to believe that their legal obligations are more restrictive than is in fact the case.

 

When faced with what Alan Eustace in a podcast about the IHREC report aptly called ‘accountability moments’—whether legal proceedings such as those instituted by Ryanair or questions in the Dáil on religious services—the Government is quite capable of stating the legal position correctly. But otherwise, the strategy often appears to be to set the legal restrictions at a certain level, imply a higher level of restriction through misleading public pronouncements, and then allow legally ungrounded threats of prosecution to bring people in line with that higher level of restriction.

 

This approach may have raised fewer issues in the early stages of the pandemic when the Government made a virtue of ‘policing by consent’. But the last six months have seen a much broader extension of criminal sanctions, buttressed by higher penalties and enhanced enforcement powers including on-the-spot fines.

 

On 26 February 2021, the Irish Times reported that the gardaí had issued almost 10,000 on-the-spot fines for covid breaches. The Health (Amendment) Act 2021 just passed by the Oireachtas raises the maximum penalty for offences under the Regulations from €2,500 to €5,000 and the maximum level for an on-the-spot fine from €500 to €2,000. The ‘relevant event’ offence is currently subject to the maximum on-the-spot fine of €500. While such fines can of course be challenged in court, the power of a garda to issue such a fine significantly increases her authority over a citizen in any given situation. That is precisely why on-the-spot fines were introduced. It is deeply troubling that gardaí appear to have a complete misunderstanding of the scope of criminal liability under some of the provisions in respect of which they are empowered to issue on-the-spot fines.

 

This is not to argue against greater enforcement of the restrictions; such may well be justified. But greater enforceability requires greater clarity about what the law actually prohibits—for citizens and gardaí alike. The saga of religious services is symptomatic of how Ireland has fallen far short in its respect for the rule of law.

 

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, ‘Religious Services and the Rule of Law: Authority and Coercion’ (9 March 2021) https://tcdlaw.blogspot.com/2021/03/religious-services-and-rule-of-law.html

* updated 12/03/21 to correct some formatting and typographical errors.

 

Restrictions on international travel: where things stand

 Oran Doyle, Trinity College Dublin

 

Introduction

There were no restrictions on international arrivals during the early stages of the pandemic. From May to December 2020, there were only minimal obligations to complete a passenger locator form. Beyond that, it was a matter of public health advice—as explored in the Ryanair case and previously on this blog. Since January 2021, the obligations have been steadily increased with obligations to take PCR tests applied to a widening range of countries, then obligations to self-quarantine, and now with the Oireachtas set to introduce mandatory quarantine at designated facilities for some international passengers. At the same time, the law has been tightened to ensure that visitors from Northern Ireland are subject to the same restrictions on their movements as residents in the state. Finally, at the end of December and start of January, the Government imposed a general ban on passenger flights from Great Britain.

 

In this blog post, I identify the core legal restrictions that apply to international travellers and how they have evolved. The post is not a critical analysis of the restrictions. But in that regard, I recommend Prof Conor O’Mahony’s excellent blog post on the constitutionality of introducing compulsory quarantine at designated facilities.

 

Passenger locator form

The COVID-19 Passenger Locator Form Regulations were made by the Minister for Health on 24 May 2020. These have been amended on several occasions (most notably to move from a paper-based system to an online system), but the core obligations remained the same and minimal. On or before their arrival to the state, international passengers must complete the COVID-19 Passenger Locator Form in respect of themselves or any children. The form seeks information about how international passengers arrived in the state and details of their place of residence for the following 14 days. If they change their place of residence or contact details, they must make reasonable efforts to provide this updated information in writing. 

 

PCR tests 

In early January 2021, the Minister for Health first made regulations imposing requirements on passengers arriving in the State from Great Britain and South Africa to have negative PCR tests. The regulations have been replaced and broadened on several occasions. The current law is found in SI 44/2021 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Restrictions upon Travel to the State from Certain States) (No. 4) Regulations 2021. These regulations came into force on 6 February 2021 and are scheduled to remain in force until 5 March 2021. At the time of writing, no extension regulations have been published but they likely will be.

 

Passengers who arrive in Ireland from any other state, excluding Northern Ireland, are required to do a PCR test and have a ‘not detected’ result prior to travelling to Ireland. Responsible adults are subject to obligations in respect of those in their care aged 7-18. Children under the age of 7 are not required to have PCR tests. On arrival in the state, the traveller or responsible adult must make the test result available to an immigration official. An international traveller who arrives in the State without a PCR test result is obliged to undergo a PCR test as soon as practicable and at the latest within 36 hours. These are all penal provisions, meaning that they are subject to criminal enforcement.

 

It is noteworthy that the provisions do not distinguish between citizens and non-citizens, and that having a ‘not detected’ PCR test is not a precondition for entry into the state.

 

There are several exemptions, including for those involved in international transport, those who are transiting through Ireland, and those who have been out of Ireland to perform the functions of an office held under the Constitution or an enactment, or as a member of the Oireachtas, a local authority, or the European Parliament. There is no specific exemption for Members of the European Commission, although they may be covered as staff members of an international organisation. Commissioners beware!

 

Home quarantine

SI 44/2021 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Restrictions upon Travel to the State from Certain States) (No. 4) Regulations 2021 also introduced obligations to self-quarantine.

 

The precise obligations to self-quarantine vary depending on whether the traveller has been in a category 2 state in the period of 14 days prior to arrival in Ireland. Brazil and South Africa were listed as category 2 states in the original regulations, but the Minister may add other states. As of 26 February 2021, the Minister had added a further 31 states. All states not listed remain category 1 states.

 

Travellers arriving from category 1 and category 2 states are all initially required to self-quarantine for 14 days. This is a penal provision. However, travellers from category 1 states are relieved of the obligation if they obtain a ‘not detected’ PCR test more than five days after their arrival in Ireland. Travellers from category 2 states do not benefit from this leeway. The self-quarantine must take place in the traveller’s place of residence, as specified in the passenger locator form.

 

There is a range of exceptions for travellers from category 1 states, including emergency reasons, the carrying out of critical repair and maintenance work, journalism, and participating in international sporting events as sanctioned by Sports Ireland. The range of exceptions for travellers from category 2 states is limited to ‘unavoidable reasons of an emergency nature to protect a person’s health or welfare’, to travel from her point of entry to her residence, to avail of a PCR test when requested in writing to do so by the HSE, and to leave the state.

 

Travel from Northern Ireland

During the most extreme lockdowns, it has been a criminal offence to leave one’s home without a reasonable excuse. There has been a list of specified reasonable excuses—including travel for essential work, exercise within 5km, etc—as well as a residual category of ‘reasonable excuse’. However, these restrictions only applied to people whose residence is located in the state. As a result, people resident in Northern Ireland were not subject to any movement restrictions once they crossed the border and entered the state.

 

This has been changed by SI 29/2021 as of 1 February 2021. Regulation 4(1) of SI 701/2020 Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19) (No. 10) Regulations 2020 as amended provides that any person who is not ordinarily resident in the state shall not travel within the state without reasonable excuse. The list of reasonable excuses for residents in the state to leave their homes now applies to non-residents travelling in the State. So, for example, a person resident in Northern Ireland might cross the border and then travel in the state for the purposes of attending a medical or dental appointment (regulation 4(2)(g)). Only one of the reasonable excuses is subject to a distance restriction, exercise within a 5km radius of a person’s place of residence. It follows that a resident from Northern Ireland can only exercise in the state if their residence in Northern Ireland is less than 5km from the border.

 

These changes have a wider application than just people from Northern Ireland travelling in the state: any person visiting the state is now subject to the same restrictions as those resident in the state.

 

Hotel quarantine 

At the time of writing, the Health (Amendment) Bill 2021 has been passed by the Dáil and is under consideration by the Seanad. If enacted, this will introduce a system of compulsory quarantine at a designated facility for two categories of international travellers: those arriving from ‘designated states’ and those arriving without a PCR test. Those from designated states must quarantine in the designated facility for 14 days, or shorter if they take a PCR test on the 10th day and it returns ‘not detected’. Those without a PCR test must quarantine for 10 days or until they receive a ‘not detected’ PCR test result. Anyone released from quarantine before the 14 day period elapses must then quarantine at home in accordance with the regulations described above. Where a PCR test is returned ‘detected’, the quarantine period is extended. 

 

If a person is subject to the quarantine requirement because she has a PCR test but it shows that the virus was detected, she may be discharged to home quarantine if a medical officer of health is satisfied that she can effectively isolate in her residence. Such a person would, however, still have committed a criminal offence by not providing a ‘not detected’ result to the immigration officer upon entering the state.

Those subject to these obligations will be required to pre-book themselves into designated facilities. 

 

Flight bans

In December 2020, the Government issued a NOTAM (notice to airmen) requesting operators to suspend passenger flights from any and all airports and aerodromes in Great Britain, with the exception of repatriation flights and flights that had obtained a special permission from the Department of Transport. This restriction applied from 21 December 2020 to 6 January 2021.

 

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

 

Suggested citation: Oran Doyle, ‘Restrictions on international travel: where things stand’ (4 March 2020) https://tcdlaw.blogspot.com/2021/03/restrictions-on-international-travel.html

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.

____________________________________________________________________

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

Higher fines for travelling abroad: legal imperfections

Conor White

 

Introduction

On-the-spot fines for breaches of COVID-19 restrictions were introduced late last year. The Health (Amendment) Act 2020 signed into law on 25 October 2020 gives the Gardaí discretion to issue “fixed payment notices” instead of seeking a conviction in the District Court. This appears to have made it significantly easier for the Gardaí to fine people in breach of the penal provisions of regulations.

 

The current rates of fines ranging from €80 to €500 (depending on the “fixed penalty provision”) are laid out in statutory instruments.

 

The Taoiseach said in the Dáil on Wednesday 10 February that the Government intends to increase the rate for fines for travel abroad without reasonable excuse from the current amount of €500 to €2000. Bringing about this change is not as simple as signing a new statutory instrument and could run into other difficulties I explore here.

 

Background to Fixed Payment Notices

Fixed payment notices have been a fixture of Irish law for several decades. (The terms “fixed penalty notice” and “fixed charge notice” are also used.) They arise most often with minor road traffic offences where the Gardaí opt to issue a fine to those accused of an offence instead of prosecuting the offence. It is discretionary because the option to prosecute the offence remains. Additionally, if the fine is not paid within 28 days of receiving notice, the Gardaí then seek a prosecution.

 

There are obvious advantages to this mode of enforcement, explained by McDermott J in Kinsella v DPP [2018] IEHC 474:

 

The purpose of a fixed penalty notice is to provide an erring motorist with a quick and efficient method of acknowledging his wrongdoing and submitting to a lesser penalty than that which might be imposed after conviction. In doing so the motorist also avoids prosecution and the recording of a potential conviction for a criminal offence.

 

Further, no party needs to spend time in court or incur legal expenses. Many of these features are attractive during the pandemic.

 

Arguments against on-the-spot fines are also substantial: the lack of judicial involvement, the ease in which the authorities can impose them and the potential impact especially on people with lower incomes. Some research questions the efficacy of fines in the context of COVID-19 preventative measures.

 

The fixed payment notice creates a choice for the purported offender between paying a fine which effectively guarantees no criminal conviction, or challenging the circumstances of the alleged offence and potentially receiving a conviction, a higher fine and/or imprisonment. Most opt for the former.

 

Current operation of fines for travelling abroad

S.I. No. 29/2021 requires that a person “shall not leave his or her place of residence to go to an airport or port for the purpose of leaving the State without reasonable excuse”. Among the reasonable excuses are for work-related, educational, medical and urgent family reasons. S.I. No. 30/2021 sets a rate of €500 for a fixed payment notice for breaches of this provision.

 

Difficulties with moving to €2000

 

Setting the current maximum of €500 appears to be sensible as it does not radically depart from similar statutory provisions and it seems proportionate to the rest of the legislation. I explore some of the issues with changing this here.

 

(i) Maximum of €500 by law

The Minister for Health’s power to make a specific breach subject to fixed payment notices is provided by sections 31A and 31C of the Health Act 1947, amended by the Health (Amendment) Act 2020. The maximum amount that a Minister may set for a fixed payment notice is €500. An amendment will need to be enacted to permit the Minister to increase the applicable on-the-spot fine.

 

(ii) Legislative inconsistencies

Changing the legislation to increase the ceiling for these kinds of fines will change the punishment framework the Oireachtas has adopted so far. Section 31A(12)(a) of the Health Act 1947 introduced tiers for the courts to use when applying penalties on conviction, providing that subject to paragraph (b) of the same subsection which permits the court to consider aggravating factors, the liability on conviction is:

 

(i) in the case of a first such offence, to a fine not exceeding €1,000 or imprisonment for a term not exceeding one month or both,

 

(ii) in the case of a second such offence, to a fine not exceeding €1,500 or imprisonment for a term not exceeding 3 months or both, and

 

(iii) in the case of a third or subsequent such offence, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

 

These are clear instructions from the Oireachtas for the courts to follow when determining penalties.

 

Clearly €2000 is greater than the maximum fines for first and second offences. It undermines the logic of the legislation for having the on-the-spot scheme which can provide an efficient compromise for offenders, the Gardaí and the courts. This could be addressed by increasing the thresholds for fines on conviction, but there does not appear to be any demand for these thresholds to be increased for any offence other than for travelling abroad.

 

The government could decide to enforce travel abroad restrictions outside of the current framework and through legislation brought through the Oireachtas. If it is that the harm to society created by unexcused travel abroad is substantially more serious, a specific enforcement regime could be established. The current system for every other offence is then preserved.

(iii) Constitutional considerations

The use of fixed payment notices in relation to offences unrelated to the pandemic  has been relatively uncontroversial in the Irish courts. With fines usually not in excess of €200, litigation is not worthwhile. Much of the case law, such as in Kinsella above, is related to disputes over the service of notice of the fine. Increasing the scope for a fine of this nature to €2000 is uncharted territory.

 

Regarding the scope for potential constitutional issues, Articles 34.1 and 38.1 are relevant, though making any prediction or conclusion in this area is impossible.

 

Article 38.1 says that “No person shall be tried on any criminal charge save in due course of law” and as result provides accused persons with rights. The authors of Kelly (2018) have noted the lack of a clear judicial statement on the difference between a “criminal charge” and one civil in nature (at [6.5.241] onwards). The Supreme Court has outlined indicia suggesting something is a criminal charge, such as it being punitive, the risk of imprisonment for default of payment and features of arrest and detention. (See Kelly for a full discussion or this 2016 LRC Issues Paper, paragraphs 2.08 to 2.14.) For present purposes, the case law does not give a clear answer.

 

Article 34.1 requires that “Justice shall be administered in court”, meaning that there is an opportunity for a fair hearing in front of a judge. David Gwynn Morgan in 2004 suggested that with such a fining mechanism an accused may choose to pursue a line of argument of being “"pressurised" into renouncing his right to a trial before a court”.

 

Final remarks

Selecting the boundaries for fines highlights the difficulties of enforcing unprecedented public health policies to change human behaviour in a democratic country. Issues of efficacy and fairness, not discussed here, are especially important too.

 

Conor White is a member of the of the COVID-19 Law and Human Rights Observatory. He holds a BCL from University College Dublin and recently completed an LLM at the University of Cambridge.

 

Suggested citation: Conor White, ‘Higher fines for travelling abroad: legal imperfections’ COVID-19 Law and Human Rights Observatory (12 February 2021) https://tcdlaw.blogspot.com/2021/02/higher-fines-for-travelling-abroad.html