Covid 19 and the law
With most of the nation self-isolating on the Saturday before St Patrick's weekend there was some anger at social media images of people enjoying festivities in a pub in Temple Bar, Dublin. By Sunday 15th of March the Minister for Health announced the closure of all public houses. This appears to have been with the voluntary assistance of the vintners rather than by statutory compulsion. By Friday 20th of March the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 had been rushed through the Oireachtas and signed by the President. The debates in the Oireachtas illustrate that there was cross party support for the bill and there is to be more legislation and Ministerial regulations to follow in the coming weeks. The need for all of the people to do their civic duty and self-isolate, socially distance from others and adhere to the direction and health advice of the Government begs the question - what legislation exists to force those who offend the new norm but who may not be offending the 2020 Act? A summary of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act2020. The act legislates for matters of public health due to Covid19 and financial support for persons adversely affected by the economic uncertainty Covid19 is causing. Covid19 Pandemic payment This new payment will be available to employees and self-employed people who have lost employment due to a downturn in economic activity caused by the COVID-19 pandemic. It will be paid for a period of 6 weeks at a flat rate payment of €203 per week for jobseekers. If you are sick and cannot work If you are certified by your doctor as needing to self-isolate due to Covid19 you can seek a payment of €305 per week for up to two weeks self-isolation or longer if medically certified. Parents who must stay at home to look after their children Subject to regulations being published post 20th of March it does not appear that employed persons who take time from work to look after their children due to the closure of schools and creches are entitled to any social protection payments. Public health It is important to note that the public health part of the 2020 Act is an addition to the 1947 Health Act (which was enacted to combat tuberculosis) and that as Deputy Jim O’Callaghan remarked in the Dail debate on the 19th of March “since 1947 a Minister for Health has had the power to issue regulations to prevent the spread of infectious diseases. It is a power that exists under section 31 of the 1947 Act and it has not been abused since that time in any way” Covid 19 was listed as an infectious disease under the 1947 Health Act regulations in February. Section 10 of the 2020 act allows the Minister to regulate to restrict the movement of persons within the state and at our borders. The Minster may order that persons remain in their homes and also restrict the holding of events and/or regulate all such events as he sees fit. The Minister must show that his regulations. “for the purpose of preventing, limiting, minimising, or slowing the spread of Covid-19 (including the spread outside the State) or where otherwise necessary, to deal with public health risks arising from the spread of Covid-19” Section 10 recognises the fact that this is a pandemic and therefore a national emergency and that the reason for such powers to be delegated to him is because. “there is an immediate and manifest risk to human life and public health as a consequence of which it is expedient in the public interest that extraordinary measures should be taken to safeguard human life and public health”. The power to penalise those who do not comply In the event of the Minister making regulations section 10 allows for those who do not comply with those regulations to be arrested without warrant. The consequences of an arrest are that at the discretion of An Garda Siochana the person may be brought before Court without delay or in the future. It is therefore the will of the Oireachtas in the 2020 Act to give the Gardai powers to ensure compliance with the regulations to protect the health of all. A prosecution arising from Section 10 regulations. The criminal sanctions within the 2020 Act are not novel. Section 31 of The 1947 Health Act allows for the Minster for Health to make regulations and for those regulations to impose penal sanctions to include the potential for imprisonment. The most notable difference between section 31 and the new section 31A is that a District Judge can now impose an immediate prison sentence for one single and first offence whereas before the 2020 Act prison was only possible for a second or continuing offence. Affected area orders Section 31(B) allows the Minister to declare an area in the State an area. “where there is known or thought to be sustained human transmission of Covid-19 or from which there is a high risk of importation of infection or contamination with Covid-19 by travel from that area” It does appear that the wording throughout the 2020 Act is designed to show that the Oireachtas had the clear intention that these emergency laws are proportionate and are based upon a coherent set of principles in the hope that they will withstand a constitutional challenge. Civil detention for sick persons Separate to the power to criminalise and imprison there are additional powers in section 38A of the 2020 Act. The affected person must be a potential source of infection, they must be a potential risk to public health, their detention must be necessary to prevent the spread of Covid19 and reduce the risk to other’s health and life. If a medical officer believes those circumstances exist, then there must be grounds to show that person will not or cannot be isolated from others. In the event of civil detention, the medical officer must certify the grounds are met in writing and have the affected person reviewed by another medical officer within 14 days. The affected person may seek a review of their detention by a medical officer. Potential for illegality Even though we are in a time of emergency it is a potential source of criticism and illegality that section 38A does not allow for the appointment of a solicitor to assist the involuntarily detained person in the same way our Mental Health Act does. The Minister may wish to compare the Health Act 1947 and the Mental Treatment Act 1945 which was repealed in full by the 2001 Mental Health Act. The provision of legal representation is enshrined in our modern Mental Health Act since 2006. On the other side of that legal tension there is the judgment of Edwards J in VTS v The Health Service and Others  IEHC 106 which is a very detailed and helpful discussion of section 38 of the 1945 Health Act and the powers of civil detention in the context of infectious diseases. Criminal sanctions for obstructing civil detention orders Section 38(A)(7) allows for the arrest and potential imprisonment for up to 3 months of those who either try to prevent a person being detained or helps a person escape their detention. Sunset clauses It is proposed that subject to any worsening of the national emergency these 2020 Act would repeal itself on 9th of May regarding social welfare payments and on the 9th of November regarding powers to restrict the movements of people and to detain persons involuntarily. A history of emergency legislation The State has legislated for emergencies before. It sought to ensure the protection of the community in 1926 with their The Protection of the Community (Special Powers) Act 1926. The 1926 Act was an emergency reaction to profiteering and hoarding in Ireland as a result of the British General Strikes of May 4th through to May 12th. The Act was presented to the Dail for a first stage debate on May the 12th 1926 and enacted on May 17th, 1926. It was remarked by President W.T Cosgrave in addressing the Dail on the necessity of the act that. “Hoarding is a problem with which it is much more difficult to deal. It may be, and I hope it will be, unnecessary to exercise any of the powers which are asked for in this Bill, but they are powers which in special circumstances ought to be in the hands of the Executive Council—powers for the protection of the community and ensuring the due supply and distribution of the essentials of life during national emergencies” We have seen politicians complaining that their constituents are being charged €50 for face masks in some chemists. Can the State rely on section 2(1)(a) and (d) to price fix essential goods and services? 2.—(1) Whenever a proclamation is made by the Executive Council under this Act, the Executive Council may while such proclamation remains in force make by order such regulations as they shall think proper for— (a) ensuring the due supply and distribution of the essentials of life to the community (d)regulating and controlling the prices charged by traders (whether wholesale or retail), distributors, and others for any such necessaries or for the carriage or distribution thereof. Public Safety (Emergency Powers) Act of 1926 and The Emergency Powers Act of 1939 The Public Safety (Emergency Powers) Act of 1926 was enacted within two days of being brought before the Dail for a first reading and was a direct result of the killing of two members of An Garda Siochana. This act was repealed in full by the Offences Against the State Act of 1939. Neither were intended to deal with a pandemic. The Emergency Powers Act of 1939 which would have assisted as it allowed (1) The Government may, whenever and so often as they think fit, make by order (in this Act referred to as an emergency order) such provisions as are, in the opinion of the Government, necessary or expedient for securing the public safety or the preservation of the State, or for the maintenance of public order, or for the provision and control of supplies and services essential to the life of the community. However, it was repealed in full by the 2016 Statute Revision Act. What other laws exist to help prevent public disorder or criminality arising from Covid19? The Criminal Justice Public Order Act 1994- The 1994 Act is an act An Garda Siochana know well. Could the Gardai invoke sections 5 or 8 of the 1994 Act and either demand people return to their homes or desist from behaving in a manner which they deem to be offensive. Disorderly conduct is (3) In this section “offensive conduct” means any unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or serious annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour. Section 8 of the 1994 Act legislates for a failure to comply with direction of member of Garda Síochána to desist and leave the area with arrest for those who do not do so. It allows for such a power to be invoked if an offence under section 5 is suspected or if the person ( b) without lawful authority or reasonable excuse, is acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace, If we imagine a scenario where, as of now, the Minster has not gone so far as to make an order under the 2020 regulations to require people to remain indoors, but a member of An Garda Siochana believes a person is not respecting social distancing in a public place or persons are meeting in groups. The Garda believes that person or persons’ behaviour is or may upset a member(s) of the public. Can the Garda give them a warning under section 5 or 8 of the 1994 act to desist and or to move away from the persons affected? Offensive conduct Is there a lack of certainty on what the term like 'offensive conduct' means? King v. AG is the timeless authority. It concerned the “loitering” offence under the Vagrancy Act, 1824 and provides that a trial for any offence defined in vague and uncertain language is not a trial in accordance with Article 38.1 of the Constitution. Would the arrest and prosecution of a person who does not self-isolate or respect social distancing withstand legal challenge? In our current health crisis is the failure of an individual to adhere to the new norm 'unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or serious annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour'? The Court of Appeal delivered a judgment in Bita v DPP & Ors on Friday 13th of March in which it considered the analogous ' public decency' legislation in section 5 of The Summary Jurisdiction (Ireland) Amendment Act 1871. In rejecting the appeal of Mr Bita, who suggested criminalising urination in public was so vague and uncertain as to mean he could not obtain a fair trial, the Court of Appeal remarked "whether at common law or by statute law, a concept such as indecency may evolve to incorporate contemporary understandings. That does not make the offence uncertain, but it is a recognition that the law must be able to keep pace with changing circumstances" When the 1994 act was being debated in the final stage in the Seanad Minister for Justice Ms Marie Geoghan Quinn agreed to an amendment to section 5 and sternly informed the Seanad "The effect of the amendment would be that the definition in section 5(3) would now refer to "any unreasonable behaviour which having regard to the circumstances is likely to cause serious offence or serious annoyance". It is hard to imagine a more serious annoyance or serious offence being caused to others than persons ignoring health advice that the majority of the citizens are willing to comply with, especially as their behaviour endangers others. Closure of pubic houses and the restriction on movement It is clear that our vintners have voluntarily closed their public houses and they should be thanked for that. It is also reported that rogue licensed premises that do not remain closed may have their licences objected to in September in their local District Court when they are up for renewal. However, section 19 of the Intoxicating Liquor Act 1927 empowers An Garda Siochana to act now "19.—(1) Whenever the Justice of the District Court is satisfied on the written application of a Superintendent or Inspector of the Gárda Síochána that in the interests of public peace and order it is expedient that the sale of intoxicating liquor should immediately cease in any town or village in the licensing area, such Justice may order the immediate closing for the remainder of that day, or for such shorter period as he may deem adequate, of all premises licensed for the sale of intoxicating liquor in such town or village. Summary It does appear that the Oireachtas and President have acted fast and they deserve our praise. The coming days, weeks and months are going to bring challenges to us all, both personal and professionally. The legal profession must be in a position to offer independent and objective legal advice to our clients during this emergency. The State’s history of legislating for emergency powers to combat subversive armed groups is well known, but the power of our dormant, existing and new laws to combat the threat of a global pandemic which may kill more people in less time is to be seen in the coming months.