Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
The Constitution of Ireland (1937) contains three very narrow and specific provisions which are relevant.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
Ireland does not have a concept of organic or constitutional laws.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Such provisions are to be found in the Health Act 1947 - for a copy click here. This law was amended by the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 at the start of the Covid crisis. This law gives the Minister for Health power to make regulations containing restrictions on travel and activities and attach penal sanctions. The law also provided for emergency social welfare payments.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
There was no declaration of a state of emergency. The two Acts of 2020 referred to at Q3 indicated in their preambular provisions that there is currently an emergency. This explains the legal and constitutional context for the exceptional provisions and restrictions, but the references to an emergency do not constitute a declaration of a state of emergency giving rise to new legal powers.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
No such declaration of a state of emergency was made. The special regime is introduced and extended by an executive, on the basis of the legislative mandate contained in the pre-existing acts, as amended during the COVID-19 crisis.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
No such declaration of a state of emergency was made.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
In the event of an emergency caused by a war or armed rebellion (see Article 28.3.3 at Q1 above) derogation from human rights norms in the Constitution could take place. As the emergency law would be for the purpose of the emergency it is implied that the derogations must be necessary and proportionate. No formal derogation was made under Article 15 ECHR or other international instrument in respect of COVID measures.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The effect of the measures taken since April 2020 under the Health Act 1947 as amended include limitations to the freedom of assembly, the freedom of association, the freedom of movement, the right of bodily integrity, and the right to private property.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
Yes the effect of the amendments to the Health Act (see Q3 above) was to confer additional powers under that ordinary law on the Minister for Health who is part of the Executive. These additional powers were used when exceptional measures were introduced by the Minister by regulations, which measures did have the effect of limitations on the rights at Q8 above.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
The executive has not been granted powers to derogate from the normal division of powers.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
The speaker of the Dail (Ceann Comhairle) and the Business Committee of that House made special rules to reduce the number of members present in the Dail Chamber at any one time. These rules are not mandatory but recommendations only. The upper House (Seanad) is not in session at this time as it has not been fully reconstituted since the general election of February.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
Special temporary rules were introduced by the judiciary itself. This was done by Practice Direction from the Chief Justice dated 16 April issued pursuant to pre-existing laws. The Supreme Court is operating by remote hearing but judgments are being delivered in public in a courtroom. In other courts remote hearings are being held in many cases while this crisis lasts. Where public hearings are being heard in a courtroom public access is limited and there are special arrangements and facilities to provide for physical distancing.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
See Q3 above for the special legislation introduced to deal with the health emergency. However no laws were adopted to deal with a declaration of a state of emergency as such.
14. Was this additional legislation subject to judicial review?
None of the new legislation at Q3 above has been subject to judicial review as yet. An application was made by lay litigants challenging the restrictions but it was rejected by the High Court at the earliest stage as being bound to fail and taken in the wrong procedure. It is possible that there will be an appeal. The High Court judgment of 13th May is attached at Annex D.
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
No state of emergency has been declared.
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
No state of emergency has been declared. If there was an emergency caused by war or armed rebellion under Art.28.3 (see Q1 above) then legal remedies would exist to challenge the parliamentary resolutions, and the constitutionality of laws resulting. These remedies would take the form of declaratory action in the High Court or judicial review of specific steps taken or in defence of enforcement proceedings.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
The only elections scheduled during the Covid-19 emergency were those for the upper house of Parliament, Seanad Eireann. For such elections voting is by postal vote and that went ahead without postponement.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No local elections or referendums were scheduled for this period.
Ireland
The most relevant provision is to be found in Article 28.3.3 as follows:
‘Nothing in this Constitution other than Article 15.5.2 shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this subsection ‘time of war’ includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and ‘time of war or armed rebellion’ includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of any armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.’
This means that the terms of the Constitution (except the ban on the death penalty) can be superseded by a law stated to be for the identified purposes related to a war, rebellion or armed conflict. This only applies to war or armed rebellion and does not apply to pandemics or natural disasters.
Article 15.8 mentions "special emergency" which allows either House to hold a private sitting. This concept of special emergency is wider than war or armed rebellion. Article 24.1 provides for the passing of urgent Bills in an abridged procedure, due to a public emergency, and that concept is also wider than war or armed rebellion.
There is an ordinary law from before the date of the Constitution called the Protection of the Community (Special Powers) Act 1926. This Act allows for the proclamation by the Government of a national emergency related to the supply of the essentials of life. The Act has never been used and it is unclear to what extent it is consistent with the Constitution. There are other provisions, also from 1926, about the need to control broadcasting during a national emergency. These powers have never been used. On the legislation governing the powers of the authorities during the health crisis see Q3.
In addition the Emergency Measures in the Public Interest (Covid-19) Act 2020 was enacted to make emergency provisions for the application of other regulatory schemes in other laws, including the registration of health professionals.
During April and May of 2020 regulations were made by the Minister for Health under the Health Act 1947 as amended by the recent provisions.
These regulations included the Health Act (Affected Areas) Order 2020 designating the entire territory of the state as an infected area.
In addition the Health Act 1947 (S31A-Temporary Restrictions) (Covid-19) Regulations 2020 introduced restrictions from April 8 to end on April 12. These were extended from April 10 to 5 May, and later with variations until June 8. There are also regulations about a compulsory form for incoming travellers.
Health (Preservation and Protection And Other Emergency Measures in The Public Interest) Act 2020 provided in section 2.4 that special COVID-related measures can be extended by the decision of the Government beyond 9th of May.
Such orders (extending the emergency measures beyond this date) should be submitted for approval to Parliament, which may approve or annul them but “without prejudice to the validity of anything previously done thereunder” (Section 2 (5) of the 2020 Act).
Under Emergency Measures in The Public Interest (Covid-19) Act 2020, its operation is limited by 9 November 2020, and may be extended by the resolution of both houses of parliament. On the basis of this act the Government may decree the “emergency period” which normally lasts for 3 months but the Government can extent this emergency period beyond 3 months.
Even in an emergency under Article 28 there can be no derogation from the ban on the death penalty.
Thus, for example, under Act 2020, Section 10, new Article 31A is added to Act of 1947, which empowers the Minister to adopt regulations in specific areas, impose additional restrictions (such as travel bans or confinement orders) and, in addition, authorises the Minister to take “(i) any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19.” However, the powers of the Minister under Article 31A are circumscribed by procedural safeguards, for example the duty to “have regard” to the official reports of the WHO, the European Centre for Disease Prevention and Control, consult with Chief Medical Officer, take into consideration available human and financial resources etc.
For the case-law on the delegated legislation see here
Such restrictions which have been introduced are limited in scope by the specific terms in which they are framed and in duration by an end date of 9 November 2020. The November date can be changed by resolutions from both Houses.
The Practice Direction was followed up by a statement from the presidents of the five different jurisdictions setting out the new arrangements.
The authorities propose to enact primary legislation when possible to underpin the actions taken by practice direction.
The recent new laws referred to under Q3 could be challenged by similar actions. The regulations bringing in the special measures could be challenged in such actions on the basis of constitutionality and consistency with the law under which the regulations were made. Further the regulations are subject to a negative laying provision in parliament so a resolution could be brought in either House to annul them.
No change to available legal remedies has been made.
As indicated under Q14 above an application was brought by two lay litigants but failed in the High Court. It is possible that there will be an appeal.
The arrangements for attendance at the counting centres in early March were changed because of the pandemic to limit the number of persons in attendance and take account of social distancing. The changes were made by administrative decision of the Returning Officer and no changes to law or regulations were required.
For such elections there are two separate electorates. For the six university seats there is an electorate of graduates from two specified universities. Each university is a separate constituency. The turnout at these elections was slightly down from the last election in 2016. For one university it dropped from 27.9 % to 23.3 % and at the other university it dropped from 36.14 % to 34.04 %.
Forty-three seats are filled by an electorate made up of members of the incoming Dail and the outgoing Seanad and all local authority councillors. The turnout was 99% with this electorate at the previous election in 2016. The figures for this election are not yet available but are likely to be similar as it is a postal vote with a narrow political electorate.