Tánaiste Leo Varadkar, as reported on this forum, argued that quarantining travellers upon arrival in Ireland would be ‘disproportionate’, because people already living here who test positive for Covid-19 do not have to quarantine. He also argued that it would go against the European Union’s strict rules on allowing freedom of movement and open borders between member states.
However, here in Ireland, written into legislation is that “an applicable person shall not leave his or her place of residence without reasonable excuse”, ie every person in Ireland is under house arrest unless they have an acceptable excuse to leave their homes.
The Irish legislation has also stated that “an applicable person shall not travel from his or her county of residence to another county or to a state other than the State without reasonable excuse.” So, paradoxically, the Tanaiste says that restricting visitors would go against the EU’s strict rules on freedom of movement, while at the same time imposing legislation on our own citizens that run counter to this principle. But more importantly, while the law confines Irish citizens to their home ‘without reasonable excuse’ for what is starting to feel like an indefinite period of time, it is apparently disproportionate to confine visitors to hotels for a finite period.
But such paradoxes are only secondary to the substantive issue at hand – the constitutionality of the legislation as it is currently framed. David Kenny in The Irish Times (4th February) examines the constitutionality of quarantine measures for incoming travellers and covers much of the ground that would relate to a constitutional test of internal restrictions on movement.
The Irish Constitution recognises and declares that people living in Ireland have certain fundamental personal rights. Articles 40 to 44 set out these fundamental rights. Many of the rights apply to everyone living in Ireland, including non-Irish citizens. Article 40.4 The Constitution guarantees that you have a right to liberty and freedom, except in accordance with the law.
The Citizen’s Information website provides some additional information around this constitutional right.
“This means that, in general, you are entitled to your own personal freedom except where regulated by law. In addition, the law may provide for your detention in certain circumstances and the State may only breach your right to personal liberty in circumstances that come within that law. If you believe that you are being detained or held unlawfully, you can make an application to the High Court. If the person or institution detaining you cannot justify your detention or prove that it is lawful, the High Court may order that you be released. This is called a habeas corpus order. You have a right to move freely within the State. You also have a broader right to travel and to get a passport for the purpose of travelling (emphasis added).”
Of course, citizensinformation.ie is not the law and merely guidance for those looking to get a general understanding. Important to note in the Constitution is that this liberty is not absolute and may be regulated by the law.
Kenny points to a number of contingencies that come into play in the discussion of the constitutionality of Covid-19 restrictions on incoming travellers – namely the common good, general welfare, and such things – and he emphasises that a severe public health exigency and the threat to the health of individuals may aid the Constitutional test. At the same time, he admits that mandatory hotel quarantine is a serious deprivation of liberty and that there would be a credible constitutional case against this measure.
If this is the case, then a more important question is whether the current legislation where ‘an applicable person shall not leave his or her place of residence without reasonable excuse’ is a serious depravation of liberty and that there could be a credible Constitutional case against the law.
After all, a district judge in Germany claimed a local state-imposed lockdown in Germany as unconstitutional and “the most comprehensive and far-reaching restriction on fundamental rights in the history of the Federal Republic”. If so there, then why not here?
Why is detention for 14 days for visitors considered a possible infraction against the Constitution whereas what feels like indefinite house arrest without reasonable excuse has gained widespread acceptance and has been subject to less scrutiny in the press and has had minimal scrutiny in the courts?
An obvious answer is that the restrictions on liberty ‘are in accordance with the law’ under the Constitution. Fair enough. But before the coronavirus pandemic, any understanding of ‘in accordance with the law’ would have been interpreted as meaning fair and reasonable restrictions on liberty due to transgressions against the law – ie breaking the law and subsequent due process under the law before jail, and ensuring the avoidance of arbitrary detention by law enforcment.
The default understanding under the constitution would be that we are all free citizens under the law and that liberty is to be protected by the law, and only restricted by law in specific, clearly defined circumstances ‘in accordance with the law’.
However, the wording of the current legislation surely runs counter to the original meaning of the Constitution which aims for the default position for the citizen to be at liberty. The current law, as it is framed, turns that default position on its head. Each person in Ireland is now expected to be imprisoned in his/her own home unless he or she has a reasonable excuse. Now, when you leave your house, instead of the presumption of innocence as you exert your constitutional liberty to move about the country, you are to assume that you may be breaking the law unless you can prove otherwise – that is, that you have a reasonable excuse. You enter into a twilight zone of Schrodinger-like uncertainty simply by leaving your house.
The onus now falls on you to prove to the Gardai when you meet them that you, in moving outside your house, are not guilty of breaking the law. It is hard to think of another situation where you are required to prove you are not breaking the as you go about your daily business. Every encounter with the Gardai has been turned into an adversarial one (this is not at all to say the Gardai are behaving adversarially or confrontationally) where you have to demonstrate your reasonable excuse: ‘Where are you going to? Where are you coming from? For what reason?’
In normal times such behaviour by the Gardai would be considered harassment – possibly totalitarian, even. If you were carrying your shopping home, you would not be stopped and asked whether you stole your goods nor to prove that you had not. If you are stopped in your car, you do not have to prove it is not stolen without good reason. The default assumption is that you are not breaking the law.
But these are not normal times, you might say. Indeed, that may be true. But the Constitution also caters for non-normal times – where emergency powers can be declared – but unfortunately for the Government, this can only be done during times of war. So, the government is hamstrung outside of times of war from declaring blanket restrictions on liberty, or from enforcing what is essentially blanket house arrest. Aside from buying food, many people have no need to leave their house. If your food shopping can be done once a week, under the law you are housebound for the rest of the week. RTE reported on January 6th that “Gardai have [also] warned that it is an offence for people to be outside their homes ‘without reasonable excuse’”. It is surprising that this warning from the Gardai has not caused greater unease.
Many people consider the restrictions to be reasonable in the current situation. That may be so, but the Constitution does not say liberty can be restricted if the majority find it reasonable. This is why liberty is a fundamental right. At the same time, the Constitution does not claim that liberty is absolute. However, it is certainly arguable that a law which turns the presumption of liberty on its head, inversing the Constitution, is by definition, unconstitutional. Otherwise, what is the point of the Constitution or Article 40.4? It becomes an empty, circular, provision. If this is the case, then John Water is right to ask: is the Bunreacht bogroll?
So, what can the government do to fight the pandemic if it cannot lay down blanket restrictions on movements?
It can maintain the Constitutional presumption of liberty under the law and use the law to define clearly the specific restrictions that it wishes to put in place. This would replace the current presumption of confinement (with the few movements that have been generously conferred on the population by the law). This would allow particular restrictions to be weighed up for both their efficacy in combatting the virus as well as their possible infringements of other fundamental rights that exist under the Constitution. After all, liberty is not only interacting with general welfare and the common good but with other fundamental rights – such as the right to freedom of religion as is being challenged in the High Court by Declan Ganley.
The common good and general welfare argument also needs to be weighed up against various negative impacts of restrictions on freedom. Liberty is intrinsic but also instrumental – consider the mental health toll as well as the employment loss linked to lockdowns – and as a recent study in the US shows, significant the excess mortality is anticipated due to the impact of lockdowns. This may be a case of weighing lives against lives. Lockdowns can also destroy the lives they’re intended to protect with elderly confined to a life of isolation and loneliness in innumerable cases. Another argument recently proposed is that lockdowns may be driving the virus to mutate into more deadly variants as discussed by Matt Ridley in The Spectator through natural selection. Lockdowns may be contributing to more deaths than it is saving. We don’t know and the government is not being pressed to demonstrate the utility of its restrictions.
The government has not been required to demonstrate evidentially that these blanket restrictions are necessary and proportional to the challenge, or useful on balance in fighting it, and genuinely meet the specific requirements to which the restrictions are directed. A blanket lockdown means that no specific restrictions exist. These cannot be subject to the rigorous analysis necessary – Is this specific restriction necessary? Is it proportional? Is it effective? – to justify a narrowing of a fundamental freedom under the Constitution. Instead, under a sweeping prohibition on movement (with a few conferred caveats), we are subjected to an accumulation of infinite restrictions many of them unnecessary, ineffective and disproportionate. When these are hidden beneath one diktat, they cannot be interrogated. For that reason alone, the approach taken under the ought to be abandoned as unconstitutional and reframed in a manner that maintains the presumption of liberty.