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Government accused of 'blurring lines' on emergency pandemic powers

The Irish Human Rights and Equality Commission says all Covid-related emergency powers should have sunset clauses.

GOVERNMENT’S USE OF pandemic related emergency powers has disproportionately affected minorities and younger people, according to new research from the Irish Human Rights and Equality Commission (IHREC). 

The commission also accused the government of persistently “blurring the lines” between legal requirements and public health guidance in its Covid-19 response.

A report, authored by experts from the Covid-19 Law and Human Rights Observatory in Trinity College Dublin, looks at the 4 statutes and more than 65 sets of regulations enacted between March and December 2020 in response to the pandemic.

The report suggests that garda enforcement of emergency powers has disproportionately affected young people, ethnic and racial minorities, Travellers and Roma.

However, IHREC says that gardaí “cannot be held to account” as An Garda Síochána has resisted repeated calls to publish its data on how enforcement powers are exercised against particular groups.

“The Gardaí cannot be held to account, and effective human rights and equality analysis of these powers is hampered,” the IHREC said. 

The expanded powers given to gardaí allowed for a fine of up to €2,500 or six months in jail if people breached guidelines such as the requirement to stay in their county, organised an unlawful gathering or, later, failed to wear a face gathering on public transport.

Under current Covid-19 restrictions, gardaí have been carrying out static checkpoints on national roads, as well as other mobile checkpoints and high visibility patrols in areas such as parks and scenic locations.

An Garda Síochána has also been carrying out checkpoints on access roads to airports and ports, as well as in departure areas, to check on whether people travelling to these locations are undertaking an essential journey.

Each time a breach of the health legislation is detected, gardaí must refer the matter to the Director of Public Prosecutions for proceedings to be commenced.
When first introduced, the powers were made available to gardaí to use as a “last resort” if people refused to comply with Covid-19 guidelines.

An Garda Síochána has said it prefers to secure compliance through consent rather than enforcement in these matters. Compliance with guidelines was also frequently reported to be very high.

The ‘Ireland’s Emergency Powers During the Covid-19 Pandemic‘ report claims that “it is difficult to avoid the conclusion that the delegation of legislative power to the Minister for Health has resulted in a black hole for the consideration of human rights and equality concerns”.

The report notes that while the public health threat is sufficient to provide a justification for some restrictions, it finds that in the period examined:

  • Parliamentary oversight of emergency legislation has been lacking.
  • Shifting relations between NPHET and Government makes it difficult to ascertain where human rights and equality concerns are being addressed.
  • There has been limited or no consultation with those groups most likely to be affected in respect of the public health framework.
  • The government’s making and presentation of regulations raises serious rule of law concerns.

IHREC Chief Commissioner Sinéad Gibney told Morning Ireland that people to need to know when and how the force of the State can be brought against them. 

“Criminal prosecutions have far-reaching implications into peoples’ everyday lives so it is critical we know when we are subject to that law,” she said. 

“Almost a year on from the first case of Covid being identified in Ireland, there is a need to enhance protection of human rights, equality and the rule of law when adopting and implementing emergency powers, both as we continue to grapple with the current pandemic, as we emerge from it, and in potential future national emergencies,” Gibney said, adding that the commission is concerned about the lack of human rights and equality expertise in the decision-making structures.

Among the recommendations put forward in the report are: the establishment of a specialist Oireachtas committee on equality, human rights and diversity; a NPHET expert sub-group on human rights, equality and ethical concerns; sunset clauses for emergency powers that allow for time-limited extensions of three months; and for the Minister for Health to publish a human rights and equality analysis of each emergency regulation within 48 hours of their being made.

Oran Doyle of Trinity College Dublin, lead author of the report,  said that by limiting Oireachtas oversight and “persistently blurring” the distinction between people’s legal obligations and public health advice, “the Government has both infringed human rights and made it more difficult to lead the public response to the pandemic.”

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