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The government’s failure to adequately communicate its Covid-19 public health message has been described as an “abuse of power.”
TCD law professor Dr. David Kenny told an Oireachtas committee that the public health guidelines had confused the public.
He was one of several academics, legal experts and civil society groups to the response of the Special Committee on Covid-19 on Wednesday that criticized the government’s response to the pandemic.
“It was not clear to those ‘cocoons’ in the most severe period of movement restrictions if they were legally bound to stay in their homes; they weren’t, ”Dr. Kenny said.
“In several cases it has been largely implied that the requirement of isolation for 14 days after the trip is a legal obligation; it is not and never has been.
“You might think in some quarters that this is a useful strategy to ensure compliance with public health councils, as people will be more likely to comply if they believe they are legally bound to do so.
A course worker disinfects the handrails at Curragh Racecourse, Co Kildare. Photo: Brian Lawless / PA “>But such a strategy raises serious concerns about the rule of law and has real costs.
“It confuses members of the public; erodes public confidence in communication about the law; and it is an abuse of the power of the State, which implies a legal threat that does not exist ”.
The president of the Law Society of Ireland, Michele O’Boyle, told the committee that communication from the government on public health restrictions “fell short” at times during the pandemic.
“Although the situation faced by the State in March was unprecedented, by interfering with the fundamental rights of citizens, the least intrusive approach possible that achieves the required result should always be chosen,” he said.
“It is a requirement of Irish law, EU law and the European Convention on Human Rights that there must be certainty as to the nature of the legal obligations imposed on people.
“On some occasions, communications on restrictions did not provide such certainty because the scope and application of those restrictions were unclear.”
He expressed concern about the use of the powers of the garda to ensure that people comply with the Covid-19 measures.
“The desirability of using the police as a means of ensuring compliance with public health guidelines must be considered with great care,” Ms. O’Boyle told TDs and senators.
“Broadly speaking, we would warn against introducing powers normally reserved for the investigation of serious crimes in order to enforce what are, in essence, health standards.”
Doireann Ansbro of the Irish Council for Civil Liberties also raised concerns about the restriction of people’s rights in the government’s emergency legislation.
He said it was important that there be more guidance on what constitutes a reasonable legal excuse for not following the restrictions.
Lord Sumption. Photo: Jonathan Brady / PA “>“A situation where people are not sure what guidelines are legally required or what behavior is or is not illegal is now simply untenable.
“Laws must be published in advance and the government must be very clear about what is a law and what is not.
She described last week’s pub food regulations as “unnecessary and inappropriate.”
“It is clear that the human rights tests of necessity and proportionality have not been applied to these regulations and if they had, they would not have been met,” he said.
Earlier in the day, the committee heard that the political response to the pandemic has been extreme and is overcoming other major economic and social problems.
Retired UK Supreme Court Justice Lord Jonathan Sumption said the governments of Europe and North America had treated the Covid-19 outbreak as an unprecedented situation, when he believes it should not be viewed as such.
“There have been epidemics and pandemics before in the last 40 or 50 years and they have hardly affected Europe or North America,” he said.
“That has given us a feeling of invulnerability that we are now learning that it was a mistake, we are not actually invulnerable.
“The reason the backlash has been so extreme is that we have come to believe that there is nothing the state cannot do to protect us, and that is something that grows out of our extremely fortunate experience over the past half century.
“It will not continue.
“We are likely to have more pandemics of this type and we have to develop the kind of sense of proportion that I am afraid we have forgotten during the last century since the previous pandemic, which was the Spanish flu between 1918 and 1921.”
Lord Sumption and Gabriel Buquicchio, Chairman of the Venice Commission of the Council of Europe, joined the committee meeting via video link from London and Strasbourg respectively.
Buquicchio told the committee that “a lot of good lessons” are now being learned from the next crisis, warning: “Unfortunately, I think we will have new pandemics like this, if not more serious.”
The committee met to discuss legislation and regulations introduced by the state in response to the virus.
The committee also examined the legal framework used to support responses to the pandemic in the UK and other jurisdictions.
Asked by Fianna Fáil TD Jim O’Callaghan whether too much emphasis has been placed on public health advice to exclude other important factors, such as the mental health of the elderly and the educational needs of children, Lord Sumption said: “Yes That I believe.
“The question is to what extent should you allow clinical and medical considerations to outweigh the many other factors that make up the vigor of human life in a free and open society like ours.”
He said it is not an issue that should be handed over to scientists “even if scientists agree, which they don’t.”
In her statement, the President of the Irish Bar Association, Maura McNally, urged the Oireachtas to ensure that the court system has sufficient funds to address the backlog of cases created by the closure.
He said that meaningful and timely access to the courts was not only necessary, but extremely important.
The body, which represents 2,200 lawyers, also called for better communication from the government on Covid-19’s public health guidance.
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