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Blurred lines on public-health measures – IHREC

A study carried out by the Irish Human Rights and Equality Commission (IHREC) has found that the Government has “persistently blurred” the boundary between legal requirements and public-health guidance in its COVID-19 response.

The report says parliamentary oversight of emergency legislation has been lacking, and calls for a specialist Oireachtas Committee on Equality, Human Rights and Diversity to scrutinise emergency legislation and ministerial regulations.

Ireland’s Emergency Powers During the COVID-19 Pandemic was written by experts from the COVID-19 Law and Human Rights Observatory in Trinity College Dublin.

It looks at the four statutes and more than 65 sets of regulations enacted between March and December 2020 in response to the pandemic.

'Black hole'

The study says shifting relationships between the Government and NPHET, as well as limited opportunities for Oireachtas oversight, have made it difficult to ascertain where, if at all, human rights and equality concerns are being addressed.

“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 study finds.

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

“However, because An Garda Síochána has resisted repeated calls, including from the Irish Human Rights and Equality Commission and the Policing Authority, 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 commission says.

Sunset clauses

As well as the establishment of a new Oireachtas committee, the study makes a number of other recommendations:

• All COVID-19 related emergency powers should have sunset clauses, allowing for three-month extensions, if approved by the Dáil and Seanad,
• NPHET should have an expert sub-group on human rights, equality and ethical concerns, and this expertise should be reflected on NPHET itself,
• The Department of Children, Equality, Disability, Integration and Youth should have a voice on the Government’s NPHET oversight committee,
• The Minister for Health should publish a human rights and equality analysis of each emergency regulation within 48 hours of their being made,
• All emergency regulations should lapse within 10 sitting days if not approved by the Dáil and Seanad,
• The Garda Commissioner should take action to ensure that disaggregated data is made available on the exercise of all enforcement powers.

IHREC Chief Commissioner Sinéad Gibney said the commission was concerned about the lack of human rights and equality expertise in the decision-making structures put in place to tackle the pandemic, and in the systems that implement and scrutinise these decisions.