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Emergency Covid law uses our rights as a justification for our subjugation

This week, Oireachtas members voted on yet another extension of what were supposed to be temporary emergency Covid measures. This time they passed a Bill (the Health and Criminal Justice (Covid-19) (Amendment) (No. 2) Bill 2021) which extends all of the government’s extreme, draconian powers, continuing in a single package their wilful rejections of the most basic norms of a free society.

The vote extended these powers up to the end of March, with provision for a possible further extension to the end of June, of 2022 – well over two years after the original emergency Covid legislation was passed. There is insufficient space here to fully discuss everything that is wrong with this Bill and the legislation it seeks to extend. The intention here is only to highlight some of it.

We may start with the Bill’s preamble. First, the alarmism it contains (sweepingly broad language such as “continuing manifest and grave risk to human life and public health posed by the spread of the disease”) is not much less than the far more understandable alarm in the preamble to the legislation in March 2020. It also twice refers to vaccines having now been administered “to a significant part of the population” of the State – a curious understatement in circumstances where it is in fact a huge majority.

Secondly, in the preamble we again see the troubling invocation of “the rights of citizens to life and to bodily integrity” in order to justify unprecedented levels of State control over the daily lives of those very citizens: both the citizens who are in significant danger from Covid-19 and the vast majority who are not. In short, the Bill seeks to use our own rights as a justification for our subjugation.

Thirdly, several of the supposed justifications in the preamble of this Bill for the continuation of these powers are likely to remain true indefinitely. Accordingly, if these supposed justifications for oppression and discrimination are to be accepted for the continuation of such measures, then really, when will it end? How are the government still claiming that this plethora of alarmingly draconian ‘emergency’ powers are justified by a virus which delivers variant after variant and will probably never go away? This is ridiculous. Even for those who supported these measures in the past, there is no possible rational justification for the continuation of emergency powers for a disease whose presence is permanent.

The preamble also notably refers to “an ongoing risk that the health system in the State may come under significant and sustained pressure and significant damage may be caused to the economy”. That risk to the health system materialises in this country each year, Covid or no Covid, due to many years of governmental neglect. Here the government are again actually using their own failure to increase the capacity of the health service as a reason to keep giving them these extraordinary powers. It is the stuff of parody. Perhaps if these powers are taken away from them, they might actually feel the need to do what is necessary to ensure adequate capacity in our hospitals.

The economic justification given in the preamble of the Bill is more than questionable. Are we to believe that, to prevent further damage to the economy, the government should be permitted to retain the power to further damage the economy?

Moving on from the preamble, section 1 of the Bill provides for extension of the lockdown legislation. The continuation in force of this legislation becomes ever more unreasonable and indefensible the longer it goes on. Last May I wrote in more detail here about the wrongfulness of the lockdown legislation and its continuation, mainly on the basis of the varied and immense harm caused by lockdowns and that politicians are not entitled to exercise such radical control over people. That lockdown legislation also includes the dangerous power, as recently discussed, for a medical officer of health to order a person’s detention in a broad range of circumstances, as set out in section 11 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020.

The other key provision of the Bill now before the Oireachtas is section 4. Section 4 provides for the extension of the Health (Amendment) (No. 2) Act 2021. That is the Act on which the Covid certs are based. It is one of the most reprehensible pieces of legislation ever enacted by the Oireachtas. Indeed, the very idea of Covid vaccine passes was at first regarded as a conspiracy theory, yet in July the government made that conspiracy theory come true. So we actually have a government that turns conspiracy theory into law.

To say that some other countries are implementing similar radical measures is not an argument for them. In the course of history it is often, perhaps always, possible to point to foreign governments which subject some or all of their people to tyranny, but such regimes have always been examples of wrongfulness, of what we most assuredly must not do – not models to follow. Oppression and discrimination are wrong however many governments engage in them. Moreover, despite the determination of some in the media to focus on those countries whose policies on these issues are quite horrifying, many countries are showing a great deal more respect for their citizens’ freedom and dignity.

The system of Covid certs is not only an injustice against unvaccinated people. Using the cert means having to disclose private health information to strangers. This system sends a clear message to vaccinated people: You have no entitlement to be here. The only reason you are allowed in is because you did as directed on this matter and so now – not as a right but as a privilege – the State has given you conditional and revocable permission to be here. Your ability to participate in social life is enjoyed only at the government’s discretion, and by your use of the cert you acquiesce in that. That is a message of indignity. It is a message of subservience to the State, and of mastery of the government over the citizen. This is a totally unacceptable way to treat people.

Obviously though, this system is an even worse, and very much worse, injustice to people not vaccinated against Covid-19. The lack of a rational scientific/public health justification for this system has been commented on by others, and that is an important matter to expose. However, it is only part of the picture, because even if such a system had a credible public health rationale that would not address the arguments of principle and human rights against it. Think about how degrading, how awful it is to be excluded from places such as restaurants, pubs, cafes, cinemas and gyms. Such a level of exclusion from normal life treats unvaccinated people not even just as second-class citizens, but as sub-human. Think about the level of psychological harm and the sense of alienation, isolation and division this government is consciously inflicting on many people. They are driving citizens out of society. People should not treat their fellow human beings so appallingly as this government does, keeping people out of premises as if they were animals. This is impossible to justify. What they are doing is an absolute outrage.

Indeed, on top of the damage their legally mandated discrimination is causing in the lives of unvaccinated people, the Taoiseach, Tánaiste and Health Minister among others have sought to publicly blame unvaccinated people for the consequences of prolonged and scandalous governmental neglect of health service capacity. Totally inadequate hospital capacity has been a recurring problem in this country for many years now, as reviewed in detail recently by John McGuirk and Ben Scallan, so the phenomenon of the health service being under extreme pressure is nothing new. There lies the true cause of the problem: the mismanagement of the health service and the failure, despite warnings and repeated annual health service crises, to take the necessary action to address hospital capacity. Why have successive governments failed to act on these recurring issues? Why have this government not properly addressed the deficiency?

This government are willing to exclude, marginalise and scapegoat unvaccinated people in order to escape responsibility and deflect blame from themselves. It is despicable. It is monstrous. This is not the behaviour of responsible office-holders. This is textbook totalitarian behaviour: single out a minority within society; scapegoat them; portray them as a danger to the wider public; exclude them from normal participation in society. We would be foolish not to recognise how dangerous this kind of scapegoating, both by government and by many in the media, truly is. It is vitally important for everyone of goodwill, regardless of vaccination status, to reject this poisonous division and discrimination.

It is said that power tends to corrupt and absolute power corrupts absolutely. These radical powers do seem to have very much gone to the government’s heads. They have become much too comfortable dictating to us in our daily lives. That is clear from the content of their current Bill, the legislation it seeks to extend, and their many pronouncements presuming an incredibly wide-ranging entitlement to tell us all what we can and cannot do in our daily lives.

In the restrictions they have imposed for nearly two years now, they treat our most basic rights and freedoms not as inviolable or inherent in us by virtue of our humanity, but merely as privileges which they are entitled to take away whenever, and for however long, they or their advisers see fit. It has been suggested that to remove these powers from the government would be reckless. However, their oppressive and discriminatory actions, from long, severe and repeated lockdowns to exclusion and scapegoating of a minority, show that almost nothing could be more reckless than allowing them to retain these extraordinary powers over the people they were elected to serve.


Geoffrey Sumner is a barrister living and working in Galway.

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