Is Mandatory Hotel Quarantine Compatible with EU Law?

[Editor's note: today and yesterday we have featured two blogposts that address the legal issues around mandatory hotel quarantine from different perspectives. Today Professor Tobias Lock of NUI Maynooth addresses the EU law issues. Those interested in the constitutional issues can consult Professor Conor O'Mahony of University College Cork’s post from yesterday].

Tobias Lock, Maynooth University

The Health (Amendment) Act 2021 – signed into law on 7 March – provides for mandatory hotel quarantine for two types of travellers: those who have been in ‘in a designated state at any time within the period of 14 days prior to’ arriving in Ireland; and those who have not been to a designated state, but cannot produce a negative PCR test result upon arrival in Ireland. Travellers – no matter what nationality – are required to quarantine in a hotel room for 14 days. This period can be shortened if the traveller receives a negative test result on a test taken on the 10th day; but it can also be extended if there is a positive test result. The term ‘quarantine’ is not defined in the Act, but the Government understands it to mean that the traveller must stay in their hotel room on their own at all times, save for pre-booked short ‘fresh air breaks’.

 

The Act gives the Minister for Health powers ‘to designate in writing any state … where there is known to be sustained human transmission of Covid-19 … or from where there is a high risk of importation of infection or contamination with Covid-19’.

 

This blog post argues that mandatory hotel quarantine is justifiable under EU free movement law, but that the very narrow exceptions to it in the legislation must be interpreted broadly for mandatory hotel quarantine to be a proportionate restriction of EU law rights.

 

Who can rely on EU free movement law?

According to Article 21 (1) TFEU, EU citizens have the right to move and reside freely within the territory of the Member States. The Citizens’ Rights Directive (CRD) provides further details: Article 5 CRD stipulates a right of entry; and Article 6 a right to reside for up to three months without any conditions or formalities.

 

According to Article 3 CRD, these rights entitle EU citizens ‘who move to or reside in a Member State other than that of which they are a national’ as well as their family members (e.g. spouse or children) who accompany them. It does not matter whether they enter that other Member State from within the EU or outside.

 

Irish citizens are not within the scope of the Directive when entering the state as EU citizenship law does not cover purely internal situations, i.e. where there was no movement across an EU border. However, the famous Surinder Singh case law of the Court of Justice of the EU extends EU citizenship rights to a member state’s own nationals where that national has previously moved to another EU member state and is now returning. While Singh itself concerns the status of the returning citizen’s spouse, its reasoning shows that returning citizens enjoy all rights associated with EU citizenship as otherwise a ‘national of a Member State might be deterred from leaving his country of origin in order to pursue an activity … as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national …, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State’.

 

Hence an Irish national returning from another EU member state where they might have worked or studied or been on holiday can rely on EU free movement law against the Irish state.

 

By contrast other EU nationals can do so even when entering Ireland from a third country, so that the for the question whether mandatory hotel quarantine is compatible with EU law it is irrelevant where the EU citizen is entering the state from. According to media reports, the initial list of ‘designated states’ would have seen an additional 16 EU member states on that list, but this was pared down to only one (Austria), allegedly due to concerns voiced by the Attorney General that this could be contrary to EU free movement law. Yet given that EU free movement law applies even for arrivals from outside the EU – so long as they are non-Irish EU citizens – this advice, if it was indeed given, was based on a category error: it is the status of the traveller as an EU citizen that is decisive, not the country where they have travelled from.

 

Restriction of free movement rights

There is little doubt that mandatory hotel quarantine constitutes a restriction of EU citizens’ free movement rights: it denies their right to move freely within Ireland during the period of mandatory quarantine and furthermore, it has a deterrent effect on anyone considering exercising their free movement rights to come here in the first place, e.g. holidaymakers or other visitors, so that the measure also has a restrictive effect on the rights to enter the state and to reside there for up to three months (or longer provided additional criteria are met).

 

According to Article 27 CRD, EU citizens’ free movement rights can be restricted, however, on grounds of public policy, public security or public health. According to Article 29 CRD only diseases ‘with epidemic potential’ can be used to restrict free movement, which is the case with Covid-19. Additionally, every measure restricting free movement law must comply with the general EU law principle of proportionality.

 

Furthermore, mandatory hotel quarantine not only constitutes a restriction of the right to free movement, but also a restriction of the right to liberty guaranteed by Article 6 of the Charter of Fundamental Rights (CFR). According to Article 51 (1) CFR, the Charter applies when a member state ‘is implementing Union law’, which occurs – as is the case here – where a member state restricts free movement rights. Most Charter rights can be restricted under the conditions formulated by Article 52 (1) CFR, which are that the limitation must be provided for by law, respect the essence of the right concerned, and be proportionate.

 

Justification of mandatory hotel quarantine

As a matter of EU law therefore any mandatory hotel quarantine measures affecting those exercising the EU rights must be meet the proportionality test. The measure must pursue a legitimate aim; it must be suitable, i.e. actually capable of achieving this aim; it must be necessary, i.e. it must be the least restrictive measure to effectively achieve the aim; and it must strike a proportionate balance between the competing interests involved.

 

Mandatory hotel quarantine pursues the legitimate aim of protecting human life and public health. It is also a measure suitable to achieve this aim: by forcing people arriving in the state to reduce their physical contact with other persons to zero for two weeks, there is a very high likelihood that they will not pass on the virus if they carry it.

 

It is questionable, however, whether mandatory hotel quarantining is both necessary and proportionate.

 

Necessity

Mandatory hotel quarantine would only be necessary if there are no alternatives that would be equally effective in preventing the spread of Covid-19. Three potential alternatives come to mind: production of a negative PCR test result upon arrival; full vaccination against Covid-19; self-quarantine at home.

 

A negative PCR test result obtained before coming to Ireland does not guarantee that the traveller has not infected themselves after the test or indeed that the test is not a false negative. Hence it is not is as effective at preventing the spread of Covid-19 as hotel quarantine.

 

The same is true for full vaccination against Covid-19, but for different reasons: scientists are not yet certain whether vaccination prevents infection and transmission of Covid-19. In cases of scientific uncertainty, EU law allows member states to operate on the basis of the precautionary principle, i.e. if there are reasonable grounds for concern about negative effects of an activity – such as travel even if vaccinated – then member states have discretion to restrict that activity in the interest of public health (see e.g. the Pfizer decision, in which the General Court upheld an EU ban on antibiotics in animal feed despite scientific uncertainty as to the effects on human health). Hence mandatory hotel quarantine even for those vaccinated is likely to be considered ‘necessary’.

 

The situation is less clear with regard to the alternative of self-quarantine. If a traveller is able to quarantine at home without having any contact with another person for 14 days, then quarantining at home could be considered a less restrictive but equally effective measure. The key concern on part of the state would be compliance: whereas the state can enforce hotel quarantine relatively easily, enforcement of quarantine at home is harder – and in case of a person quarantining in a home shared with others – nigh impossible. Hence mandatory hotel quarantine could arguably be considered the more effective alternative. However, as will be argued below, it may well be disproportionate in the strict sense.

 

Proportionality - balancing

Finally, mandatory hotel quarantine must be proportionate stricto sensu, i.e. when balancing the competing interests involved, the state’s interest in protecting public health must prevail. The following factors are broadly in the mix: on the one hand, Covid-19 is highly contagious and presents a high risk to public health and human life. Mandatory hotel quarantine is also not the most severe measure the state could have adopted: a complete travel ban would constitute a stronger restriction of free movement rights, so that mandatory hotel quarantine could be seen as a way to facilitate free movement despite the pandemic.

 

On the other hand, mandatory hotel quarantine consists in a severe restriction of the right liberty protected by Article 6 CFR: travellers must not leave their hotel room except for short breaks for 14 days. Leaving mandatory quarantine constitutes a criminal offence. Furthermore, it involves a considerable cost of ca. 1800 euro for a single traveller.

 

The regulations formulate certain exemptions, but these are mostly confined to persons performing certain jobs, such as airline pilots or diplomats. Most people can only escape mandatory quarantine by requesting a release from quarantine ‘on urgent humanitarian grounds’, reportedly applied in the case of a fully vaccinated traveller who had travelled to Ireland to be with his dying father.

 

Additionally, travellers who are unable to meet the quarantine cost, must still do so, but may apply for an exemption, the granting of which is in the discretion of the Minister (see Regulations 11-14 of S.I. No. 125/2021).

 

These exemptions are clearly designed to ensure compliance with proportionality. But it is doubtful that they go far enough at least in the following cases.

 

First, where a traveller can show that they are able to self-quarantine, it is hard to see how in light of the severe restrictions to personal liberty mandatory hotel quarantine can be required. The only argument in favour would be easier enforcement. It would, however, seem to be possible to enforce self-quarantine at home by way of regular checks, etc. The fact that enforcement of self-isolation requirements failed last summer cannot be a valid excuse for imposing far stricter measures. Only if the state can show that it enforcement is not possible, might this be the case. Hence EU law may force the state to grant an exemption under the condition that the traveller self-isolates at home. While the legislation only allows these for ‘humanitarian reasons’, the duty to interpret domestic legislation as far as possible in such a way that it is compliant with EU law (indirect effect), means that a person able to self-isolate should be able to avail of this exemption.

 

Secondly, EU law restricts the discretion of the state where the determination of ‘designated countries’ and exemptions from hotel quarantine or its costs are concerned. As for the former, EU law requires that the selection of countries is not arbitrary. It must therefore happen according to coherent criteria. The Health (Amendment) Act 2021 is fairly vague in this regard and more objective criteria – e.g. express reliance on the incidence of the disease in the country of origin – would make measures more EU law-proof.

 

Thirdly, where the situation of the individual traveller is concerned, the state’s exercise of discretion has to take account of EU law requirements, i.e. in every single case the state will need to determine the proportionality of the measure as a matter of EU law. This is a highly fact-specific exercise, so it is difficult to make general pronouncements on who may or may not have to be exempted from mandatory quarantine or at least from having to pay for it. For instance, a student returning home from their Erasmus year abroad might have a good case under EU law that they should not have to bear the costs of quarantine. The government seems to now recognise this when it announced that it would cover students’ quarantine costs. If mandatory hotel quarantine is still in place in the autumn, then the same would have to apply to incoming (Erasmus) students. Additionally, others returning from the EU (e.g. after completing an internship) who do not have the means of paying for their quarantine will have a good case under EU law to be exempt from having to pay.

 

Conclusion

In conclusion, this blog post showed that mandatory hotel quarantine is largely compliant with EU law requirements. However, given the far-reaching restrictions to personal liberty entailed, the exceptions are formulated too narrowly and will provoke challenges. Such challenges can be avoided if the state exercises the discretion given to it with good measure, at least in those cases where EU law applies: i.e. where EU citizens are entering the state or where Irish citizens are returning from another EU member state.

 

Tobias Lock is Professor and Jean Monnet Chair in EU Law and Fundamental Rights at Maynooth University. Professor Lock’s work is supported by the Erasmus+ Programme of the European Union.

 

Suggested citation: Tobias Lock, ‘Is Mandatory Hotel Quarantine Compatible with EU Law? (14 April 2021) https://tcdlaw.blogspot.com/2021/04/is-mandatory-hotel-quarantine.html

Questions about Quarantine: Exemptions and Proportionality

Conor O'Mahony, University College Cork

[Editor's note: today and tomorrow we are publishing two blogposts that address the legal issues around mandatory hotel quarantine from different perspectives. Today Professor Conor O'Mahony of University College Cork addresses the constitutional issues. Tomorrow Professor Tobias Lock of NUI Maynooth addresses the EU law issues.]

Background

The constitutionality of mandatory hotel quarantine has been a point of contention for some weeks. In February, the Taoiseach claimed that it would be unconstitutional to introduce such a scheme. In response to those claims, I wrote a blog arguing that although mandatory hotel quarantine restricts a range of constitutional rights (including, eg, personal liberty and freedom of movement), it pursues a legitimate aim and would likely be constitutional in principle, particularly “if it included some narrowly drawn exceptions to cater for cases where the impact was most extreme”. Similar points were made by David Kenny in the Irish Times.

 

There are clearly strong reasons supporting quarantine as a public health measure. COVID19 was originally brought to Ireland by travel; the second wave was caused by travel from Spain after the first wave had been suppressed; the third wave saw new variants introduced from the UK that worsened the situation; and recent outbreaks can be traced to foreign travel, including even more concerning new variants.

 

The Government dropped its claims that mandatory hotel quarantine would be unconstitutional and the Oireachtas enacted the Health (Amendment) Act 2021 in March. The Act empowers the Minister for Health to make regulations designating States as being subject to the requirement to quarantine; at the time of writing, 71 countries/territories are so designated. The Act also defines a range of “exempted travellers”, and empowers the Minister to make regulations adding to that list.

 

Within weeks of the commencement of mandatory hotel quarantine, multiple cases have generated courts proceedings challenging the legality of the detention in quarantine and raising the question of whether the scheme contains sufficient flexibility to avoid the harshest impacts. Two people have been released from quarantine and their challenges to its constitutionality struck out as a result; but other cases are due to return before the courts and seem likely to generate direct challenges to the legislation itself. 

 

Broadly speaking, the issues that have arisen include requiring people to quarantine even where they have been fully vaccinated against COVID19 and/or have tested negative since their arrival; requiring people to quarantine notwithstanding pressing reasons for travel (such as the impending death of, or funeral for, a close relative); and requiring people of limited means to pay for their stay in hotel quarantine. In all three categories, the argument turns on the breadth of the exceptions and the proportionality of the approach taken, and the question of whether the law goes further than necessary to achieve the legitimate aim of preventing transmission of COVID19.

 

Vaccinations and Negative PCR Tests

Requiring a person to quarantine even though they have been fully vaccinated and/or tested negative since their arrival appears at first glance to be draconian: it subjects a person to 14 days of detention when it could be suggested that they present little or no risk of transmitting COVID19 to anyone else. However, beneath the surface, it is less clear-cut. While there is clear evidence that vaccination significantly reduces the risk that a person will become seriously ill from COVID19, the evidence that vaccines prevent a person from transmitting the virus to others, while emerging, is weaker and more contested.

 

Verifying that a person has been fully vaccinated in another country is not straightforward; in the absence of an international recognition system, such an exception may be open to abuse. PCR tests have a significant rate of false negatives, and a person released from quarantine after a negative test may in fact be infected and may transmit the virus to others. Thus, a challenge to the law on this ground, while arguable, would be met with a range of scientific and policy defences by the Government, to which a court would afford a strong degree of deference.

 

Humanitarian Reasons

A requirement to quarantine for 14 days might prevent a person from seeing their dying family member for the last time, or from attending their funeral. The impact here might not be limited to people hoping to see their dying elderly parents (a possibility denied to many due to COVID restrictions). The Department of Health has confirmed that attending a funeral does not qualify for an exemption from the requirement to quarantine. There is a possibility of appealing on humanitarian grounds, but this does not cover funerals. 

 

This category of cases is different to vaccination cases in that the person travelling cannot claim to present a lower risk than anyone else of transmitting COVID19. On the other hand, the numbers involved will be relatively small, and PCR testing pre- and post-arrival could reduce (if not eliminate) the risk of transmission. In this light, the impact on that person and on their family does seem especially harsh. However, it is important to emphasise that the courts have stressed in cases like Murphy v IRTC [1999] 1 IR 12 and MD (A Minor) v Ireland [2012] 1 IR 697 that it is not the role of the courts to decide that the Oireachtas could or should have made a different policy choice. A law will only be found to be disproportionate or discriminatory if it is found to be beyond the competence and discretion of the Oireachtas; and those judgments are just two of many examples of courts affording the Oireachtas a very wide latitude.

 

Cost of Quarantine

Running a system of quarantine is expensive, and the State could argue that it is entitled to seek to defray that expense by shifting the cost to those who will use the system. It could also argue that imposing a charge is part of a legitimate policy of seeking to deter people from all but the most essential of travel during the pandemic. The scheme does include a possibility of applying to defer payment on grounds of hardship. However, at a cost of €1,875 per passenger, there is a big difference between deferring payment and being exempted from the cost (or the requirement to quarantine) altogether.

 

Moreover, some travel clearly is essential, and not everyone who has an essential reason for travel will be able to pay the cost of quarantine either now or at a deferred date. The announcement that the Government will pay the costs of quarantine for students returning from studying abroad on Erasmus placements recognises this fact. Others of limited financial means may need to travel considerable distances for pressing family reasons and be unable to afford quarantine after paying for the costs of travel; but at the time of writing, no additional provision has been made for such cases.

 

A case with the right fact pattern involving essential travel and impecuniosity might attempt a constitutional challenge to quarantine charges on a basis not dissimilar to part of the judgment in Redmond v Minister for the Environment [2001] 4 IR 61. In Redmond, a requirement to place a deposit before running for election was found to violate the equality guarantee of Article 40.1 for indirectly discriminating against people of limited financial means. Herbert J stated at 80 that “a law which has the effect, even if totally unintended, of discriminating between human persons on the basis of money is an attack upon the dignity of those persons as human beings who do not have money.”

 

Conclusion

It seems likely that a direct constitutional challenge to the system of mandatory hotel quarantine will find its way to the High Court sooner rather than later. When it does, it will combine technical considerations regarding proportionality and judicial deference and human considerations concerning harsh impacts on individuals and families. Many lawyers agree that any challenge faces a steep hill to climb. An applicant who can make arguments based on a combination of the above circumstances (ie vaccination, negative test, humanitarian considerations, and possible inability to pay) seems best placed to discharge the burden of rebutting the presumption of constitutionality enjoyed by the relevant legislation. Moreover, it should be remembered that even a successful challenge would not necessarily invalidate the entire system; it may simply require an adjustment to the exemptions.

 

Conor O’Mahony is Professor of Law and Deputy Dean of the School of Law at University College Cork, where he teaches constitutional law, child law and children’s rights.

 

Suggested citation: Conor O’Mahony, ‘Questions about Quarantine: Exemptions and Proportionality’ COVID-19 Law and Human Rights Observatory (14 April 2021) https://tcdlaw.blogspot.com/2021/04/questions-about-quarantine-exemptions.html

The Pandemic: Road-testing Commitments to Human Rights in Global Supply Chains

Rachel Widdis, School of Law, Trinity College Dublin

 

COVID has raised awareness of the fragility of global supply chains. Images of planes landing laden with PPE on national television are fresh in our minds. The pandemic has also spurred on the discussion of human rights standards in global supply chains and the behaviours of buying companies. Acknowledging there are complex intersecting impacts, the purpose here is to highlight COVID amplified impacts, dissonances and developments. In this, the pandemic has exposed the positions taken when the chips are down, and road tested corporate commitments to respect human rights including labour and health and safety in supply chains. 

In Spring 2020 as the pandemic dawned, orders in the garment sector supply chain were slashed (millions-garment-workers-face-destitution-fashion-brands-cancel-orders). Orders already made up or in process were cancelled, including under force majeure clauses. Even for products already completed and shipped, significant price discounts were demanded. Factories in countries of supply buckled under both mandatory closures and a drop in demand for product. The Clean Clothes Campaign has a live daily blog reporting instances where workers laid off did not receive their wages or compensation under applicable local laws, including in Bangladesh, India, Cambodia, Sri Lanka, Ethiopia and Vietnam (how-the-coronavirus-influences-workers-in-supply-chains). 

There has been a disproportionate impact on migrant and temporary workers, and women workers. Research on access to nutrition during COVID-19 by the Workers’ Rights Consortium found ‘lost income translated into an inability to access adequate food for themselves and their families’ as well as an overwhelming reliance on borrowing to buy food. Of the respondent garment workers, 70% were female (Hunger-in-the-Apparel-Supply-Chain.pdf). Risks of a spiral into severe labour or other forms of exploitation combine with, for example, measures to tackle modern slavery being inhibited by travel and other restrictions related to the pandemic (modern-slavery-risks-in-supply-chains-during-covid-19). Job losses impacting ability to cover basic needs, and return/ stay at work under threat of non-payment of wages are also widely reported in other sectors, for example, in the electronics supply chain. These are occurring beyond tier 1, further down the supply chain (ICT forced labour risks).

The activity of buying companies is also impacted, although many may benefit from a suite of state supports in their home states. Reports indicate programmes financed by the EU are making support payments to furloughed or laid off garments workers (european-union-doubles-funding-for-garment-workers-in-crisis) concurrently with global brands cancelling or refusing to pay in the same countries. Isolated brighter spots are not discounted, with certain companies stepping in with relief programmes (unilever-to-protect-most-vulnerable-suppliers-as-part-of-covid-19-relief-programme/). 

Further issues with health and safety relating to COVID are documented by the ILO, including factories failing to provide PPE to workers and staying open during lockdown without instituting social distancing, as well as crowded transport of workers to and from factories and workers locked down in cramped dormitories exposing them to infection (ILO Asia). In cruel irony, reportedly some of these factories are producing PPE and rubber gloves (blackrock-top-glove-inadequate-oversight-of-worker-health-safety/). 

Rolling the clock back pre-pandemic, risks to and impacts on the most vulnerable in global supply chains have been long well documented; within the past decade 1,138 people died in a factory collapse (Rana Plaza) supplying global garment brands in the EU, and 258 people in a fire at a jeans factory principally supplying German headquartered KIK (KiK_Pakistan). Corporations are responding to awareness of the human rights and environmental impacts of their operations in their own activities and throughout their value chains, within a context well populated with multistakeholder initiatives, international initiatives such as the UN Guiding Principles on Business and Human Rights, SDGs, supplier codes of conduct, model contract clauses to protect workers in international supply chains (Principled Purchasing Project), and allied movements in ‘ESG’ and ‘Sustainability’. For present purposes, the first issue is that these are mainly voluntary in nature. As such, business is expected to ‘comply with all applicable laws and respect internationally recognized human rights, wherever they operate’ (UNGP 23), but is not obliged to do so. Secondly, while large numbers of corporations issued related policies, and engaged corporations took action, most did not (Corporate Benchmark 2020 ). 

The pandemic has road tested both commitments concerning supply chains in corporate policy, and to such initiatives. It has amplified the known vulnerability of the people within global value chains, and again underpins the drive towards mandatory human rights and environmental due diligence. In 2020, the EU Commissioner for Justice committed to introduce a legislative initiative including corporate human rights due diligence. In March 2021, the European Parliament adopted a report on corporate due diligence and corporate accountability (JURI). It called on the EU Commission to present legislation ensuring companies address and are held accountable for human rights, environmental and governance risks and impacts throughout their global value chains, including sanctions for non-compliance and civil remedies. The Commission initiative, expected in June, is eagerly anticipated. The impact of COVID on the most vulnerable in global supply chains should feed into obligations, in a new enforceable standard. 

Dr Rachel Widdis teaches Business and Human Rights in the School of Law, Trinity College Dublin.

Suggestion citation: Rachel Widdis, ‘The Pandemic: Road-testing Commitments to Human Rights in Global Supply Chains’ COVID-19 Law and Human Rights Observatory Blog (13 April 2021) https://tcdlaw.blogspot.com/2021/04/the-pandemic-road-testing-commitments.html

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