Covid-19 Response: New Irish Emergency Measures

The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (the "Act") was passed by both houses of the Oireachtas (the Irish Parliament) and was signed into law by the President on 20 March 2020. 

Under the Act the Minister for Health (the "Minister") has extensive powers to restrict the freedom of all individuals in order to prevent the further spread of COVID-19 in Ireland.  The emergency measures underpin the Government's strategy of protecting individuals' constitutional rights to life and to bodily integrity.

(a) Restricting the movement of people;

(b) Designating 'affected areas' and severely restricting travel to, from and within these areas;

(c) Restricting travel to and from Ireland; 

(d) Permitting the designation of 'essential services' which can be exempted from some of the rigours of the Act;

(e) Creating criminal offences, corporate liability and individual criminal liability for directors, shareholders, officers and employees of companies who commit offences under the Act; and

(f) Providing for the detention of individuals who fail or refuse to self-isolate or quarantine.

Much will depend on the severity of the spread of the virus as Ireland enters the 'delay' phase of COVID-19 management, as well as the level of compliance with the current preventative measures set out by the Government and the Chief Medical Officer of the Department of Health (the "CMO").

Are these emergency measures in place now?

No.  Ministerial regulations will need to be implemented to give effect to many of the Act's powers.  To date, no such regulations have been published.  Typically, regulations can be prepared very quickly and where a cluster of infections is identified, it is safe to assume that regulations could be in place within a matter of hours, if necessary to designate an 'affected area'. 

Regulations are not subject to further scrutiny by parliament.  As in other jurisdictions, it is envisaged that the Minister may need to roll out increasingly strict measures under a series of regulations. 

The power to make regulations under the Act is not unfettered in that the principles of necessity and proportionality must be adhered to in the making of any such regulations.  However, the precise scope of the power is unclear.  The Act sets out a number of considerations, which are relevant when the Minister is making such regulations, including the following:

During the final debates in parliament on the text of the legislation, the Minister reassured parliament that the exercise of decision making powers would be transparent and proportionate.  He stated: "Proportionality and necessity will be at the core of what we do and we will share the rationale for our decisions with the Houses of the Oireachtas".

What are the restrictions on the movement of people including workers?

What about meetings or gatherings of people?

An 'event' includes a gathering for any of cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, religious or other reasons.  Where an event is permitted, restrictions and safeguards may be imposed to limit or slow the infection risk of people attending them.

Measures can be imposed requiring owners or occupiers of a premises (such as a workplace) or a class of premises (restaurants, gyms, hotels for example) to implement measures to minimise or slow the risk of infection to people attending the premises, including temporary closure.  By way of example, in the context of employers, this could require temperature screening.  

The Minister also has the power to "take any other measures necessary to prevent, limit, minimise or slow the spread of COVID-19".

The Liability of Directors, Officers, Managers and Shareholders for Breaches of the Act

For example: 

How will the Act affect the provision of essential services?  Who are 'essential workers'? 

What are the enforcement powers? 

Regulations made by the Minister may be enforced by 'relevant persons' who will be designated as such by the Minister.  The list is non-exhaustive and includes officers from the Department of Health, and Justice and Equality.  There is no specific mention of the defence forces or Garda Siochána (police) but they will almost certainly be deployed to support enforcement if necessary.

What are the penalties for breaching the Act? 

Sanctions for committing any of the offences listed above are liable to a fine of up to €2,500 and / or imprisonment for up to six months.  As noted above, individual business owners, directors, officers and managers potentially face individual criminal liability.  The Garda Siochána also have express powers of search, arrest and detention under the legislation.

What about powers of isolation and detention of individuals as has happened in other countries?

The Minister has such powers. Individuals who are a potential source of infection or risk to public health can be mandatorily detained and isolated where they are otherwise failing or refusing to do so.

The sunset clause - when will it all end? 

The emergency powers continue in operation until 9 November 2020 on which date they will cease to have effect unless a resolution is passed by both houses of the Oireachtas (parliament) to approve the continuation of the measures.