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Opinion: Emergency Covid-19 legislation harks back to the Civil War, ‘the Emergency’ and the Troubles

Conor Casey of Trinity College says a challenge to the new legislation would be unlikely to succeed.

Conor Casey

AS THE COVID-19 virus continues to pose serious challenges to economic and social life across the island, the Government looks set to ramp-up its response by introducing broad new legal powers. 

Until now, the Government has relied on issuing guidelines informed by expert medical evidence; leveraging social and moral pressure to promote compliance with best practice on handwashing, social distancing, and curbing public gatherings.

While enjoying significant public support for these measures, the government lacks statutory authority to enforce them. But this situation looks set to change imminently with the enactment of the Health Preservation and Protection and other Emergency Measures in the Public Interest Act 2020.

Swift legislation

On St. Patrick’s Day, the Government approved the introduction of the Health Preservation and Protection and other Emergency Measures in the Public Interest Bill 2020 to the Oireachtas.

Its enactment is designed to provide a robust statutory underpinning for the State’s response to the Covid-19 crisis.

The Bill’s preamble acknowledged that it provided for “extraordinary measures and safeguards to prevent, minimise, limit or slow the risk of persons being infected” and links its necessity to “constitutional duty of the State to respect and, as far as practicable, by its laws to defend and vindicate the rights of citizens to life and to bodily integrity”.

On 20 March 2020, having been passed by both Houses of the Oireachtas, the bill was signed into law by President Higgins.

There is no doubt the Act provides for a very sizeable grant of statutory authority; most eye-catching being the Act’s amendment to the Health Act 1947 which gives the government ability to issue regulations to prohibit travel to or from the State; travel within the State; require persons to remain in their homes or other places specified by the government, and prohibit events which could reasonably be considered as posing a risk of infection to the persons attending.

The Act also provides a medical officer with the power to order the detention of an individual if they believe they are a source of infection, and that the detention or isolation of that person is necessary to prevent the spread of Covid-19 in circumstances where they have refused to remain in their home or other accommodation.

These powers are intended to continue in operation until the 9th November 2020 but can be extended if the government consider it in the public interest. Any order to extend these powers must be laid before each House of the Oireachtas, either of which can annul it within 21 days.

A government statement accompanying the bill stated that it hoped the provisions wouldn’t have to be used and were only being introduced in the “unlikely event that the need arises.”

The Government have also sought emergency powers to deal with the harsh economic effects the current pandemic is having on persons and families in rented accommodation. On the 25th March, the Government introduced the Emergency Measures in the Public Interest (Covid-19) Bill 2020.

By the 27 March, the Bill had passed both Houses of the Oireachtas and is due to be signed into law by President Higgins. Once enacted, the legislation will provide for a three-month cessation of evictions and rent increases, but this time frame can be extended by the Government if it considers it in the public interest. The Oireachtas can annul any such extension within 21 days.

Emergency powers frequently used

Emergency powers have been part and parcel of the Irish State from the earliest days of independence. From the Civil War, through ‘the Emergency’ and Troubles, to the economic crisis of the late 2000s; risks posed by political subversion, terrorism, and economic collapse, have all prompted successive governments to seek broad and sometimes draconian powers from the Oireachtas. 

During ‘the Emergency’, for example, the Oireachtas passed the Emergency Powers Act 1939 and Offences Against the State Act 1939. These Acts vested the Government with wide-ranging powers, including authority to issue regulations to control private property and economic activity, impose censorship, establish military courts with power to issue the death penalty, and establish internment without trial by Government order. In more recent times, the Oireachtas passed several pieces of legislation giving the Government extraordinary authority to tackle the financial crisis of the late 2000s.

Acts like the Credit Institutions (Financial Support) Act 2008, National Assets Management Agency Act 2009, and Financial Emergency Measures in the Public Interest Act 2009, cumulatively gave the Government statutory authority to issue billions of euro in financial support to stricken credit institutions, issue swingeing cuts to public sector pay and pensions, and compulsorily acquire privately-held banking loans deemed non-performing.

Risk of legal challenge

There are two ways the Oireachtas can pass legislation during a time of emergency. One way involves Article 28.3.3 of the Constitution. This provision provides that in times of war or armed rebellion in the State, or war or armed rebellion taking place in another State where the Oireachtas resolves it affects Ireland’s vital interests, the Oireachtas may pass legislation for the public safety which is effectively immune from constitutional challenge.

The only thing the Oireachtas cannot legislate for is the reintroduction of the death penalty. But legislation impacting other rights like freedom of movement, liberty, or property rights would be constitutionally immune from legal challenge. 

However, aside from this Article there is no other constitutional provision for issuing emergency legislation or declare a state of emergency. So, there is no generic emergency provision which can be invoked to tackle other serious crises like severe homelessness, economic disaster, or pandemics.

The only other way the Oireachtas can tackle emergencies is to grant broad statutory powers to the government using the ordinary law-making process set out in Article 15. This means that, even if legislation is passed by the Oireachtas for the purpose of tackling a very serious emergency, it will not be immune from legal challenge by a plaintiff on the grounds it is unconstitutional.

This means that the Health Preservation and Protection and other Emergency Measures in the Public Interest Act 2020 may well be subject to constitutional challenge if the powers it grants are deployed.

Possible legal challenge unlikely to succeed

However, there are good reasons to think any challenge would be unsuccessful. For a start, any challenge would have to show the Act is a disproportionate interference with constitutional rights.

This would involve a plaintiff showing the Act is irrational, unnecessary, or strikes a wide imbalance between its objective and the extent of the right interfered with. Courts in previous cases have given the Oireachtas a wider margin during emergency periods in striking the balance between the common good and individual rights. 

Judges are not politicians in robes, but Courts are also not cloistered institutions, and they will adjust their understanding of what is necessary and proportionate for the common good in light of the wider political context.

More fundamentally, judges are only human. And for judges staring down the barrel of high-stakes litigation involving emergency powers, deference to the Oireachtas’ assessment of necessity can be a highly rational response to uncertainty.

Especially in a situation where judicial second-guessing of a law’s necessity or proportionality can risk very serious consequences. Ultimately, judicial action striking down emergency legislation like that proposed by the Government may simply carry stark consequences an unelected and politically unaccountable court may not wish to risk incurring. 

A good recent example of how judges respond to challenges to emergency legislation can be seen through their treatment of legislation passed to tackle the financial crisis. As these laws were not passed through reliance on Article 28.3.3, challenges were brought challenging their constitutionality.

But in case after case, the Courts upheld their constitutionality, and when doing so made frequent references to the dire circumstances the country found itself in, and the leeway they had to give the Oireachtas when tackling emergencies, even if its response had a significant impact on individual property rights. In such circumstances, the Courts said they would give a wide margin to the Oireachtas in deciding what measures were necessary and proportionate to respond to a crisis.

The Covid-19 virus may be an unprecedented event in the history of the Irish State, but the Oireachtas using emergency powers to respond to serious crises is certainly not. Nor is the prospect of judges giving the Oireachtas a wide latitude when doing so.

Conor Casey is a PhD candidate in the School of Law, Trinity College, Dublin.

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