Constitutional questions are unlikely to be uppermost in our minds now, when we feel concerned both about those most vulnerable to Covid-19 and about those most severely affected by past and present measures responding to it. In terms of the collateral damage caused by those measures, we think of things like physical and mental health, detection and treatment of non-Covid conditions, increased domestic violence, reduction of normal human contact, loss of livelihoods, damage to the economy, impact on some relationships and on children’s education. It is understandable then if constitutional rights are not high on everyone’s list of concerns about the response to Covid-19. Yet, in a year that has seen the curtailment of freedoms as basic as setting foot outside one’s home, it is profoundly important to raise awareness of such rights, as we scrutinise the steps many governments have taken.
A striking example of such scrutiny is to be found in the judgment last month of a US federal judge, who struck down various Covid-19 restrictions introduced by the governor of Pennsylvania. The judge ruled that the prohibitions on indoor and outdoor gatherings above specified sizes violated rights under the US Constitution. As did the stay-at-home orders (which, when in force, had prohibited people from leaving their homes other than for certain approved activities); and orders requiring the closure of all businesses deemed “non-life-sustaining”. While accepting that those measures were directed toward laudable ends, the judge warned:
“the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good—especially in a time of emergency. In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup…”
He noted that while the Courts may show deference to “time-sensitive decisions in the maelstrom of an emergency”, that deference could not continue forever: the duration of the crisis was already long and its length remained uncertain. Commenting on the lockdown measures at issue, the judge observed that while the US had faced many epidemics and pandemics in the past and various measures had been implemented in response to them, “there have never previously been lockdowns of entire populations—much less for lengthy and indefinite periods of time”, even for the Spanish Flu. In Pennsylvania, for example, there had been an order in 1918 which closed “all public places of entertainment…and prohibit[ed] all meetings of every description until further notice.” The order also left local officials to decide whether to cancel school and/or religious services, and it lasted for only about five weeks. The judge continued:
“A comparative study of non-pharmaceutical interventions used in various U.S. cities in 1918-19 shows that state and local mitigation measures were of similarly short durations across the nation. While, unquestionably, state and local governments restricted certain activities for a limited period of time to mitigate the Spanish Flu, there is no record of any imposition of a population lockdown in response to that disease or any other in our history.… [The lockdowns] were not recommendations made by the [US Centres for Disease Control and Prevention]…. It appears as though the imposition of lockdowns in Wuhan and other areas of China—a nation unconstrained by concern for civil liberties and constitutional norms—started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens.”
The judge concluded:
“The liberties protected by the Constitution are not fair-weather freedoms—in place when times are good but able to be cast aside in times of trouble…. The Constitution cannot accept the concept of a “new normal” where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.
Restrictions in Ireland
There is a lot there to reflect on when we look at the quite similar restrictions we have experienced in Ireland. Here, on 8th April 2020 new regulations came into effect. Those regulations (in conjunction with another order) prohibited anyone in the State from leaving his or her home “without reasonable excuse”. There was a non-exhaustive list of “reasonable excuses”. Breach of those regulations was an offence punishable by a fine of up to €2,500 and/or imprisonment for up to six months. The regulations also curtail many events and businesses. Originally they were to apply until 12th April, but they were extended to 5th May, and extended again (with changes) to 18th May and then 8th June.
As we know, those regulations were replaced by a series of regulatory variations, replacements and duration extensions, and now the rest of the country joins Dublin and Donegal at Level 3 of the government’s Plan for Living with COVID-19. Some of the Level 3 restrictions seem reasonable, others in my view are excessive, especially given the wide variations between different counties in relation to Covid. This one-size-fits-all approach to the country is very blunt and sends the unhelpful message that, even if your county is doing very well, it may be restricted as much as if it were doing far worse. This may entail avoidable escalation of economic and other harm.
Thankfully though, the government had enough sense not to accede to NPHET’s recommendation to move to Level 5. According to the Plan, moving to Level 4 or 5 would mean, among other things, not being allowed to have any visitors in our own homes, and at Level 5 we are back to “Stay at home (exercise within 5km of home)”. Those prospects would be especially awful for many people living alone.
Thankfully too, despite some alarmist reports, rates of Covid-related deaths, hospitalisations and ICU admissions are now fractions of what they were in April. In addition, the government of a free society simply cannot respond to a situation like this in the same way as a totalitarian regime, even if we could assume that such a regime’s response would be more effective. It is necessary also to bear in mind the division of opinion among scientists on numerous aspects of the response to this virus, as recently explored for example by the Oireachtas Covid-19 committee. Moreover, there is a danger of unwittingly falling into a kind of Covid tunnel vision – a single-minded attitude that any amount and variety of collateral harm to any number of people, in the short and long term, is acceptable if NPHET advice indicates that that is best for Covid management. Criticising the government for not going even further than Level 3 gives insufficient weight to these considerations.
A free society should not depend solely on government discretion
While we may feel relief at the government’s decision, the fact that our entitlement to receive even one visitor, and the extent of our freedom to leave our homes, came to depend solely on an exercise of governmental discretion is profoundly troubling. “Will the government let me have a visitor tomorrow?” is a question that should be alien to the people of a free society. The idea of returning to “Stay at home (exercise within 5km of home)” is also particularly jarring.
Leaving aside any constitutional questions, the original lockdown to flatten the curve and allow the health service time to prepare seemed understandable for a time in the circumstances in which it was introduced. Having some sort of on-again-off-again lockdown would be a very different matter, especially given that this problem is expected to persist for a considerable time.
This prompts important questions. Again leaving aside any question about the constitutionality of past or present restrictions imposed this year,[i] would it have been constitutional to implement NPHET’s Level 5 suggestion?[ii]
Constitutional Rights are not ‘fair-weather freedoms’
Although the US Constitution and our own differ markedly, the American judgment discussed above relies on rights which have similar equivalents in ours: for example, the rights to freedom of movement and to earn a livelihood have been recognised as included within our Constitution’s general guarantee of personal rights, and they are among the rights affected by Covid-19 restrictions. As in America, constitutional rights are not “fair-weather freedoms” in Ireland either. As Mr. Justice O’Donnell wisely remarked, in a case concerning the constitutional mandate that justice must (with exceptions) be administered in public:
“the essence of constitutional rights is that they call for enforcement precisely when inconvenient, contrary to the wishes of the Government, the clamour of the media, the public mood more generally, and even the personal wishes of judges themselves.”
There is an exception in Article 28.3.3° of the Constitution, which gives almost total immunity from constitutional challenge to certain Acts passed by the Oireachtas in time of war or armed rebellion – but only in those two situations.
In assessing legal restrictions on most constitutional rights a proportionality test[iii] is typically applied. This test involves examining both the objective and the means chosen to achieve it. Here the objectives invoked include the protection of the right to life itself, clearly a crucially important aim. Some of the means chosen entail extraordinary interferences with the most basic freedoms of the entire population, and therefore of citizens who have not been shown to have this virus – and who, in the vast majority of cases, do not have it – and in circumstances where the virus itself is non-lethal in the overwhelming majority of cases. We should also recall that the relevant measures restrict the rights of people generally, including the people for whose protection they are primarily intended. In addition, even assuming the original lockdown was constitutional in the circumstances prevailing at that time, this might not necessarily be true of a move to similar restrictions now, bearing in mind that Article 28.3.3° does not apply so the government does not have carte blanche.
Of course, any analysis of the constitutionality of any restriction would cover much more ground than is possible here, and the validity of relevant restrictions is properly a matter for the Courts to decide. The point here is not to offer a view on whether a move to Level 5 would be unconstitutional, or whether any restriction introduced to date is. Instead, the point here is to provide some basic insights into the Constitution and to remind people that we still have constitutional rights, and that in the present situation the government’s power to interfere with those rights is still subject to constitutional limits. It is important to remind people of this, because the way in which the current situation is often discussed conveys the impression that while the virus persists the government has absolute power to do in response whatever it deems fit, whenever it deems fit, for as long as it deems fit, which is not the case. That perception poses a real danger of generating a mentality of subservience that cannot be allowed to take hold in a free society.
Conclusion: Protect the vulnerable – and our freedoms
We should protect the most vulnerable, but we should also discuss what extent/duration of restrictions on their (and everyone else’s) long-established basic freedoms is an acceptable means of protecting them. Most people will not take foolish risks here. Prof. Johan Giesecke, epidemiologist and former chief scientist at the European Centre for Disease Control, advocates more reliance on voluntary measures than on laws and regulations and notes that, generally, people will follow the advice they are given about this. He is far from alone. His approach is not perfect. No approach to this is.
In his contribution to the Oireachtas Covid-19 Committee, Lord Sumption, retired UK Supreme Court judge, observed:
“I think the main reason why the response has been unprecedented, certainly in Europe and North America, is that we have got rather complacent about our capacity to overcome natural forces…. There are many reasons the reaction has been so extreme, but by far the most important is that we have come to believe that there is nothing that the state cannot do to protect us. That is something that is borne of our extremely fortunate experience over the last half century. It is not going to continue. We are likely to have more pandemics of this kind and we have to develop a kind of sense of proportion, which I am afraid we have forgotten….”
He also commented on the effect of lockdowns and the possibility that they may “prolong the agony and increase the economic dislocation and the social and educational damage without achieving a corresponding reduction in the long-term impact of the disease.” He added:
“I also believe that in areas such as dementia, mental health and delayed diagnosis and treatment of cancer, the deaths occasioned by the lockdown may in the end not fall far short of the deaths occasioned by the disease…. I think history will look back on this as a monument of collective hysteria and governmental folly.”
While we still need to be careful about this virus, it is troubling to reflect that he may well prove to be right.
[i] Although a High Court challenge to measures including the April regulations failed, the judgment in that case is not a finding that those regulations were or were not constitutional, but rather a finding that the facts put on affidavit in that case were insufficient to show they are unconstitutional (an appeal has been lodged in that case).
[ii] Another question is whether or not such a move would contravene the European Convention on Human Rights, but exploring that question here would occupy too much space.
[iii] The proportionality test is set out in many cases, e.g. Re Article 26 and Part V of the Planning and Development Bill 1999 (available at https://www.bailii.org/ie/cases/IESC/2000/20.html, paragraph 83). See also the written submission to the Oireachtas Covid-19 committee by the Bar Council, which does not express any view on the constitutionality of the restrictions which were introduced but contains useful discussion.
Geoffrey Sumner is a barrister living and working in Galway