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

Education Rights and COVID-19 School Closures

 

Alan DP Brady, Trinity College Dublin School of Law School and Law Library 

James Rooney, Trinity College Dublin School of Law School and Law Library

 

On 6 January 2021, the Government decided that all schools – including special schools – were to be closedin response to the third wave of the Covid-19 pandemic. Over the succeeding school term, schools were gradually reopened, with special schools the first to open. It is anticipated that fully reopened primary and secondary education will be available after the Easter break.

 

The closure of all schools – and particularly the closure of special schools – has been legally and politically controversial. Conor Casey has recently drawn attention in his blog post to the unusual means by which this shut-down was ordered – namely that no primary or secondary legislation has been promulgated giving effect to these school closures. In this blog post, we draw attention to the impact of school closures on the educational rights of children under the Constitution of Ireland and the European Convention of Human Rights (ECHR). 

 

Education Rights under the Constitution of Ireland

Article 42.4 of the Constitution states that ‘the state shall provide for free primary education.’ In Crowley v Ireland [1980] IR 102, the Supreme Court held that, while Art.42.4 does not guarantee a primary education for all children, it does guarantee that the State will provide the infrastructure for third parties to provide free primary education. Where a child is not provided with any primary educational infrastructure from the State then, this will constitute a breach of the Art.42.4 right. This has arisen in the past in regards children with special educational needs. In O’Donoghue v Minister for Education [1996] 2 IR 20, the High Court declared that ‘the infant applicant is entitled to free primary education in accordance with Article 42.4 of the Constitution and the State is under an obligation to provide for such education.’ This judgment, affirmed on appeal by the Supreme Court [1996] 2 IR 20, is a recognition of a positive obligation on the State to provide education to children, including children with special needs.

 

In O’Carolan v Minister for Education and Science [2005] IEHC 296, a child’s parents challenged the quality of his special needs education. The High Court rejected their challenge, holding that, excepting the extreme situation where no educational provision is made an ‘adequate’ educational provision by the state will satisfy its obligations under Art.42.4. Similarly, in Ó C v Minister for Education and Science [2007] IEHC 170, the High Court held that, provided the Minister has not acted ‘in some irrational way by making provision in a way that simply cannot be appropriate to meet the needs of children with [special] needs,’ the approach adopted by the Minister will be deemed constitutionally compliant.

 

The State is under a duty to provide some primary education, where education is understood to be ‘such advice, instruction, and teaching as will enable him or her to make the best possible use of his or her inherent and potential capacities, physical, mental, and moral; however limited those capacities may be.’ [1996] 2 IR 20, at 65) If some provision is made, provided that the provision is not irrational, it will likely pass the test in Ó C. 

 

It is apparent however there are categories of children for whom no educational provision was made following school closures in January. First, and most obviously, children with special needs for whom online learning is not practicable, did not receive any educational provision at all. This appears to fall short of the State’s obligations under Art.42.4. Secondly, online education for mainstream primary students as assumes that the IT facilities and adult supervision are available for the child to make use of the online educational provision. This may not be possible for many children. For example, there may not be enough electronic devices in the home for the child and any adults working from home to each have access to IT. Where the caregiver(s) is/are an essential worker(s) the necessary level of adult supervision for a child to engage with online learning may be absent. These factors suggest that there are also mainstream primary pupils who were not receiving educational provision during the school closures.

 

Educational Rights under the ECHR 

Art.2 of Protocol 1 to the ECHR guarantees that the right to education ‘shall not be denied’. The ECHR appears to primarily place a passive duty on the State not to hinder access to education, rather than a positive obligation to subsidise a particular type of education. However, the ECHR right also includes secondary and higher education. In Catan v Moldova and Russia (2013) 57 EHRR 4 (Grand Chamber), the European Court of Human rights (ECtHR) accepted that the right to education is not absolute and may be subject to limitations, but there must be no injury to the substance of the right, they must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim to be achieved.

 

In Memlika v Greece (2013) 57 EHRR 4 (Grand Chamber), the ECtHR found a violation of the right to education for two primary school aged children who missed three months of school due to a mis-diagnosis of leprosy. The Court expressly assessed the intrusion on proportionality grounds and found that it was disproportionate. The ECtHR has found that the right to education can be violated in combination with the Art.14 right to non-discrimination in the context of a child with special educational needs. (GL v Italy [2020] ECHR 618). The Court noted that the discrimination on the basis of disability was all the more serious as it had taken place in the context of primary education, which formed the foundation of child education and social integration, giving children their first experience of living together in a community.

 

Conclusion

The ECHR prohibits the disproportionate limitation of access to primary, secondary and third level education. As the Constitutional case law has primarily focused on positive obligations, it is not clear whether the Constitutional right carries a similar prohibition, but it is certainly possible, More importantly, taken in combination the positive and negative obligations from the two human rights instruments indicate that: (a) the Irish State is obliged to provide the practical infrastructure for the provision of primary education by independent entities; and (b) the Irish State may not disproportionately prevent children from accessing that education. During the early part of 2021 large numbers of children were excluded from receiving any educational provision in circumstances where the public health experts indicate that schools themselves are safe. This raises serious questions about the proportionality of ordering the total closure of all schools. As the work of this blog has repeatedly affirmed, rights need protection particularly during emergencies. Whilst it is cautiously hoped that we are currently in the last lockdown of this pandemic, in the case of a fourth wave it is hoped that greater consideration will be given to the educational rights of children than was the case in this third lockdown.

 

Alan DP Brady and James Rooney are practising barristers and Adjunct Assistant Professors of Law, Trinity College Dublin.

 

Suggested citation: Alan DP Brady and James Rooney, ‘Education Rights and COVID-19 School Closures’ COVID-19 Law and Human Rights Observatory (8 April 2021) https://tcdlaw.blogspot.com/2021/04/education-rights-and-covid-19-school.html

 

Cessation of Passport Services Raises Fundamental Rule of Law Concerns

 

Donna Lyons, Trinity College Dublin 

 

 

Restrictions on International Travel 

Regulation 4A(1) of the Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19) (No. 10) Regulations 2020 provides that ‘an applicable person shall not leave his or her place of residence to go to an airport or port for the purposes of leaving the State without reasonable excuse’ (this is a penal provision, as confirmed in Regulation 4A(3)). 

 

Regulation 4A(2) provides that ‘such reasonable excuse includes’ a person leaving one’s residence in order to engage in work; provide services to or perform the functions of an office holder or provide services essential to the functioning of diplomatic missions and consular posts; attend education; accompany a person with whom one is residing or a vulnerable person to attend education; attend a medical or dental appointment or accompany a person with whom one is residing or a vulnerable person to such an appointment; seek essential medical, health or dental assistance; attend to vital family matters, including providing care to vulnerable persons; attend a funeral; fulfil a legal obligation, and leave the State where one is not ordinarily resident here. Many of these activities mirror those outlined in Regulation 4(2) for the purposes of domestic travel, but the list of activities constituting a reasonable excuse for travel abroad is shorter and more stringent. Understandably, the government has felt it imperative to limit international travel for the purposes of protecting public health. 

 

Previous Observatory blog posts have focussed upon international travel in the pandemic (Oran Doyle has recently written about where things lie in relation to international travel restrictions and Conor White has analysed the fines which are in place for travelling abroad unlawfully). In this post, I examine the issue of renewal or replacement of passports for the purposes of international travel.  

 

 

Additional Restrictions in the Case of Expired or Lost Passports 

The Regulations do not themselves refer to the question of renewal or replacement of passports (a consolidation of the Regulations is available on the Observatory website here). According to the website of the Department of Foreign affairs, however, the passport service ‘has paused operations in line with the move to Level 5 of the Government’s National Framework on Living with COVID-19 from 24 December 2020.’ The passport service is still accepting online applications, but these will only be processed when the passport service resumes operations at Level 4. 

 

An ‘Emergency Passport Service’ is in place, which may allow for the processing of passport applications. According to the passport service’s website, an emergency ‘is defined as death or grave illness of an immediate family member, with a need for urgent travel within the next few days or for emergency medical treatment of the applicant.’ The website also notes that any supporting documentation which has been submitted will be held securely and that if individuals need documents returned to them, they should contact the Webchat service. It has been pointed out in this context that parents who were required to submit their own passports as part of applications for children, have been ‘waiting months’ for the return of their supporting documentation. 

 

A ‘limited Webchat service’ is available in the absence of phone lines, e-mail, or in-person contact. The Webchat service personnel do not have access to information in relation to specific passport applications. Webchat ‘agents’ are available between 9:30am and 4pm Mondays through Fridays. It is required that individuals make contact with the Webchat service regarding renewal or replacement of passports for the purposes of emergency travel. In the case of such a request, the Webchat agents recommend that individuals submit the passport application online and subsequently make contact via e-mail with the following address: ‘travelemergency@dfa.ie’ (Fig. 1 below). 

 

Fig. 1: Transcript of Correspondence Between Author and Passport Service Webchat Agent 

 

The Webchat agents note that the aforementioned e-mail account is monitored at all times, but in practice an automatic reply is issued from the emergency e-mail account outside of business hours (Fig. 2 below). The automatic reply e-mail provides a phone number which is manned at all times. 

 

Fig. 2: Automatic Reply from ‘travelemergency@dfa.ie’ outside of Business Hours 

 

Neither the emergency e-mail address, nor the emergency phone number are provided on the passport service’s website, such that in practice individuals facing an emergency like the grave illness or death of a family member, or the need for emergency medical treatment, will only obtain access to the relevant contact details during business hours via the Webchat agents. 

 

The narrow grounds of death or grave illness of an immediate family member, with a need for urgent travel within the next few days, or for emergency medical treatment of the applicant, are clearly more stringent than those in place for permissible travel abroad for individuals holding valid passports. If there are other grounds which fulfil the criteria for expediting, they are not outlined on the passport service’s website.

 

The Irish Times, on 20 February 2021, quoted the passport service to the effect that the following services were available: a same-day service for emergencies, a weekly urgent service for Irish citizens resident overseas requiring a passport for local immigration purposes, and in general, adult renewals for work purposes on a weekly basis where a letter from the employer was provided. Expediting passport issuance for immigration or work is nowhere mentioned on the passport service’s website. 

 

The same article quoted the passport office as stating that while routine online passport applications did not involve face-to-face interaction with applicants, staff did need to attend the passport office to process the applications as staff do not have access to the private, personal data of applicants when working remotely. 

 

The problems arising from this state of affairs are analysed below. 

 

The Data Protection Defence: Fact or Fiction? 

It is unclear why passport applications as a general rule must be halted on the basis that staff need to attend the passport office to process the applications. If it is the case that staff in the passport office do not have access to the private, personal data of applicants when working remotely, it would be useful to have an explanation by government officials as to (a) what the specific problem is with staff attending offices in-person to perform this essential service when other essential service-providers have been encouraged to return to the workplace, and (b) how the passport service differs from the likes of the NDLS, RSA, and Revenue in the context of access to personal data on a remote basis.  

 

According to the NDLS website, ‘[u]nder Covid-19 Level 5 Government restrictions effective from 06 January 2021 you can attend an appointment at an NDLS centre if you are an essential worker involved in the provision of essential services or essential retail outlets.’ Full licences which expired during lockdown have been automatically renewed by 13 months, but the online processing of all other licence applications is in effect, as is the processing of learner permits. The RSA is operating in-person for the purposes of holding driving tests for essential workers. Revenue is still operational (‘[w]e continue to carry out our vital role as a tax and customs administration to the greatest extent possible having regard for the safety and well-being of both our staff and taxpayers’). Indeed, there has been no delay by Revenue in processing tax liable on social welfareentitlements in the form of the Pandemic Unemployment Payment (PUP). 

 

In another article on 20 February 2021, an Irish Times journalist commented on the ‘data protection’ justification offered by the passport office as follows: 

 

‘[T]his seems more than a bit disingenuous, when Revenue staff are working away remotely with equally private and personal data, and driver’s licences are still being issued. Britain may have introduced mandatory hotel quarantine to discourage travel, but it hasn’t stopped issuing passports.’ 

 

In the UK, the online processing of passports is in full effect, taking approximately three weeks for each passport to be renewed or replaced. A passport may be processed in a shorter timeframe where it is urgentlyneeded. Therefore, it is possible to obtain a passport urgently in order to travel for compassionate reasons (including urgent medical treatment for the applicant or someone in the applicant’s care, or where a family member or friend is seriously ill or has died), to prove your identity, or to travel urgently for work (including for an airline or haulage company, offshore, for government or local government, in healthcare, for social services with a need to travel with children, and for the armed forces or police). 

 

Even if the ‘data protection’ ground were defensible, it is indefensible that the general phone lines and e-mail contact services have been closed down. Moreover, even in a genuine emergency, applicants are restricted to contacting the passport office during 9:30am and 4pm, Mondays through Fridays, since the actual emergency contact information (e-mail address and phone number) are only accessible via the Webchat service and emergency e-mail account respectively. It is difficult to avoid the conclusion that a deliberate strategy has been put into place to make it difficult to communicate with the office, even in the case of a genuine emergency, and ‘data protection’ simply cannot be a defence to this in its entirety. Making the emergency e-mail address and telephone number available on the website, for example, would not interfere with the personal data of any applicants. Moreover, if the passport office has told the Irish Times that passports will be issued for work or immigration purposes, why have those grounds not been advertised on the website alongside grave illness, death, or medical emergency? 

 

Minister of State, Colm Brophy, stated in March that ‘[w]hen there is an essential reason to travel each case will be considered.’ If the grounds for processing are broader than those outlined on the website, one might imagine that staff in the passport office have guidelines regarding which applications to expedite and which to decline. If that is the case, the public have certainly not been made aware of these. On the other hand, if there are no guidelines and staff are permitted to decide on a case-by-case basis, one would have to ask what authority in law those staff have for making such fundamental decisions regarding people’s basic constitutional rights? On public accountability in the pandemic, readers may wish to see David Kenny’s blog post for the Observatory on the specific issue of NPHET’s de facto decision-making power during the pandemic. 

 

Rule of Law Problems  

The question of cessation of passport services in this way raises serious rule of law concerns. Rule of law is a principle which is emphasised as paramount in both domestic law and international human rights law. The Office of the High Commissioner for Human Rights, for example, has emphasised that while the Covid-19 pandemic may require extraordinary measures, ‘[e]ven in a public emergency, these steps need to be based on the rule of law.’

 

In a Report launched in February 2021, authored by four members of the Covid-19 Law and Human Rights Observatory (including this author) for the Irish Human Rights and Equality Commission, issue is taken with the Irish government’s emergency response to the pandemic on the basis that certain actions taken offend the rule of law. The Report explains, on page 13, as follows: 

 

The rule of law is a core value in a liberal democracy. In essence, it requires first that those who are subject to the law can know what the law is so that they can guide their behaviour accordingly; and second, that state officials exercise their powers in accordance with the law. Laws should be published before they come into force; they should be clear and non-contradictory.

 

The vagueness of the concept of ‘reasonable excuse’ is criticised from a rule of law perspective at pages 75-76 of the Report (and a previous blog post by Oran Doyle also deals with this). Indirect enforcement of the law as a threat to the rule of law is discussed at pages 96-98 of the Report. In this context, the Report makes particular reference to the controversy which arose in July 2020 regarding the denial by the Department of Social Protection (DSP) of the PUP and other welfare benefits to those travelling abroad for holidays during the pandemic. At the time, social welfare inspectors from DSP were questioning people in Dublin airport and information was being fed back to DSP which allowed for the sanctioning of PUP recipients. The Report suggests that ‘[t]his episode was a questionable use of powers under the Social Welfare Acts in order to apply legal sanctions to people for breaching public health guidance’ (page 98). Mel Cousins wrote a blog for the Observatory on the PUP scandal in July 2020 (and a second one which is available here). 

 

Oran Doyle has theorised (in a podcast for the Observatory) that during the pandemic, each State becomes more like itself. Anyone who has engaged with the DSP in pre-Covid times will know that its modus operandi is a constant blurring of the distinctions between law and guidance, ongoing lack of clarity regarding entitlements, and a perpetual threat of sanction (and indeed actual sanction) for reasons that are ambiguous, constantly changing, and frequently contradictory. If the Irish State treated some of the most vulnerable members of its population in this way before the pandemic, it has certainly become more like itself during the pandemic. 

 

In the context of passports, the State is yet again contravening basic rule of law principles by indirectly enforcing a stricter set of criteria for international travel than are laid down in the official Regulations. Rather than honouring the already stringent list of reasonable excuses for international travel in the Regulations, the State is now indirectly enforcing a much narrower set of criteria (death, grave illness, medical emergency, and possibly immigration and work, though it is far from clear whether the latter two belong on this list) to a sub-set of potential travellers, the desired outcome being to drive the overall number of travellers down as far as possible. While the objective of restricting international travel for the purposes of protecting public health is itself a worthy one, indirect enforcement of vague policies which contravene the law is unacceptable. This practice is discriminatory, contrary to the letter of the Regulations, and breaches the most fundamental rule of law principles set out in both national and international human rights law.  

 

Dr. Donna Lyons is a member of the Covid-19 Law and Human Rights Observatory and a coordinator for its Human Rights and Civil Liberties Working Group. Donna also acts as Trinity College Dublin representative to the Irish Department of Foreign Affairs Committee on Human Rights. 

 

Suggested citation: Donna Lyons, ‘Cessation of Passport Services Raises Fundamental Rule of Law Concerns’ COVID-19 Law and Human Rights Observatory (6 April 2021) https://tcdlaw.blogspot.com/2021/04/cessation-of-passport-services-raises.html

Remote justice and Covid-19

Finn Keyes, Barrister-at-Law

 

Introduction

The onset of the pandemic has prompted a dramatic migration of civil court proceedings to online platforms, such as Pexip and TrialView. This has proven largely uncontroversial for procedural applications, but there has been more reluctance to proceed remotely with matters involving witness evidence. This reluctance arises primarily from concerns regarding constitutional fair procedures, particularly the right to cross-examine witnesses. There are concerns that virtual cross-examination is not a comparably effective mechanism to its corporeal counterpart. However, a recent High Court decision ( IBRC v Browne [2021] IEHC 83 ) has suggested that the balance of justice very much lies in favour of proceeding remotely with the increasing backlog of cases, such concerns notwithstanding. 

 

Background

In light of the Covid-19 pandemic, the courts are now empowered by section 11 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 to direct all civil matters to proceed remotely. This is subject to the qualification in section 11(4) that a court shall not make such a direction where it “would be unfair to any of the parties or otherwise be contrary to the interests of justice”. 

 

The High Court (O’Moore J) considered section 11 and associated procedural rules in IBRC v Browne. The case has a very long and chequered history, having originated in October 2010 before being postponed until the conclusion of related criminal prosecutions. The trial was eventually listed for April 2020 for hearing, but did not go ahead due to the onset of the pandemic. O’Moore J made an order for a remote hearing of the six-week trial starting on 27 January 2021. Despite having previously agreed to the taking of testimony from some witnesses remotely, counsel for Mr Browne objected to the hearing of the full trial by way of the remote platform TrialView. 

 

Counsel for Mr Browne argued that section 11 should be read, in light of constitutional fair procedures, in such a way as to restrict its application to cases not involving witness evidence. The arguments made by counsel reflect traditional objections as to the ability of counsel to effectively confront witnesses in video-link evidence (often raised in the context of vulnerable witnesses giving evidence via video-link under the Criminal Evidence Act 1992), but also arguments as to the relative inability of counsel to confer with his or her legal team in the course of a remote trial. (As an aside, this passage of the judgment contains what may be the first judicial acknowledgement of the now common practice of a trial legal team exchanging notes by way of specially created WhatsApp groups, which the Court noted is the “modern version of the note handed to counsel while they were on their feet”).

 

Decision of the Court

The Court dismissed the application of Mr Browne, and directed that the trial proceed remotely. O’Moore J listed a number of reasons for doing so, which may guide courts in the future. The more significant of these are set down here:

 

The remote hearing creates the same scenario for both parties: The judge held that as the remote hearing created the same scenario both parties, no particular unfairness could be said to accrue to either party. 

 

The judge was satisfied that the TrialView platform “is one which enables me to assess the evidence”:O’Moore J stated that in his own experience, and that of his judicial colleagues, TrialView was “perfectly adequate” to permit a judge to assess the testimony of witnesses.

 

Premature to rule on fairness: The Court noted that, if at any stage unfairness arose during the course of the trial, an application could be made to the Court for the remainder to be heard corporeally. 

 

Uncertainty as to when in-person hearing will be possible: O’Moore J further noted that he was bearing in mind in exercising his discretion in this regard the extraordinary delay in the proceedings, and the uncertainty as to when corporeal hearing will become possible again. 

 

Analysis

While the direction of a remote hearing may well have been appropriate on the facts of the case, there are some elements of the Court’s analysis that might prove problematic if applied more broadly. In particular, O’Moore J appears to conclude that, as he is adequately enabled to assess the witness through the online platform, no unfairness arises. This conclusion is perhaps reflective of the more activist/inquisitorial role of a judge sitting in the Commercial Court (where the case was heard), which departs somewhat from the traditional adversarial model. However, the focus on whether the judge is in the best place to assess the evidence perhaps does not give adequate consideration as to whether counsel feels himself or herself to be inhibited in cross-examination. In an adversarial system, the more important question is whether counsel is adequately able to challenge the evidence of the witness. 

 

A further difficulty, which is acknowledged but not fully addressed by the Court, is the constitutional requirement that justice be done in public. It is an often overlooked aspect of remote hearings that one needs a special code to access the virtual courtroom. These codes are made available to barristers and solicitors but are not made available to members of the public. This is obviously very different from the ordinary course whereby individuals can walk into any courtroom in the country and observe proceedings, subject to certain limited exceptions. However, the Court concluded that “[w]hile it is the case that members of the public cannot attend, the trial is nonetheless being conducted in the open and the interests of the public can be met by the reporting of the hearing by members of the press.” While the exclusion of the press would certainly further imperil the constitutionality of the hearing, the mere presence of the press does not necessarily render the proceedings “in public” within the meaning of the Constitution. In fact, many in camera hearings expressly allow for the attendance of “bona fide representatives of the press” (eg. Section 94 of the Children Act 2001).

 

The courts have also often referred to the right of members of the public to attend out of idle curiosity as equally protected. As Walsh J said in Re R Ltd [1989] IR 126, 134 “[t]he actual presence of the public is never necessary, but the administration of justice in public does require that the doors of the courts must be open so that members of the general public may come and see for themselves that justice is done.” While the courts do have an inherent power to order proceedings to take place otherwise than in public (Gilchrist v Sunday Newspapers [2017] 2 IR 284), it is submitted that a court should acknowledge that this is the effect of its order. 

 

Of course, the courts cannot grind to a halt because of the pandemic; the adaption to the online format is a commendable example of the courts responding to the realities of the ongoing crisis (a flexibility that may be contrasted with the refusal of the Oireachtas to adopt any remote proceedings). But nor should the courts persist in the attitude that nothing has changed: it is unconvincing to deny that online proceedings are as ‘public’ as those in person.

 

Finn Keyes is a Barrister-at-Law. He holds degrees from Trinity College, Dublin, University College, London and the Honorable Society of Kings Inns.

 

Suggested citation: Finn Keyes, ‘Remote justice and Covid-19’ COVID-19 Law and Human Rights Observatory Blog (1 April 2021) https://tcdlaw.blogspot.com/2021/04/remote-justice-and-covid-19.html

 

 

 

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

Mark Bell, Trinity College Dublin

 

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

 

Protected Grounds

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

 

Indirect Discrimination

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

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

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

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

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

 

Justifying a duty to vaccinate

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

 

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

 

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

 

 

 

 

The Intellectual Property Framework of the COVID-19 Vaccine Race

Ana Santos Rutschman, Saint Louis University

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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