The Government’s failure to properly communicate its Covid-19 public health message has been described as an “abuse of power”.
TCD law professor Dr David Kenny told an Oireachtas committee that public health guidelines had confused members of the public.
He was one of a number of academics, legal experts and civil society groups before the Special Committee on Covid-19 response on Wednesday that criticized the Government’s response to the pandemic.
“It was unclear to those ‘cocooning’ in the most severe period of movement restrictions if they were legally required to stay in their homes; they were not,” Dr Kenny said.
“It has been heavily implied in several instances that the requirement to isolate for 14 days after travel is a legal obligation; it is not, and never has been.
“It might be thought in some quarters that this is a useful strategy for ensuring compliance with public health advice, as people will be more likely to comply if they think they are legally obliged to do so.
“But such a strategy raises serious rule of law concerns, and has real costs.
“It confuses members of the public; erodes public trust in communication about the law; and is an abuse of State power, implying a legal threat that does not exist.”
Law Society of Ireland president Michele O’Boyle told the committee that the Government’s communication of public health restrictions “fell short” on some occasions during the pandemic.
“While the situation facing the State in March was unprecedented, when interfering in the fundamental rights of citizens, the least intrusive approach possible which achieves the required result should always be chosen,” she said.
“It is a requirement under Irish law, EU law and the European Convention on Human Rights that there should be certainty as to the nature of legal obligations placed on individuals.
“On some occasions, the communications around restrictions fell short of providing such certainty because the extent and application of those restrictions was unclear.”
She raised concerns over the use of garda powers to ensure people complied with Covid-19 measures.
“The advisability of using policing as a means to ensure compliance with public health guidelines should be extremely carefully considered,” Ms O’Boyle told TDs and senators.
“In general terms, we would caution against introducing powers normally reserved for the investigation of serious criminal offences for the purposes of enforcing what are, at their core, health regulations.”
Doireann Ansbro of the Irish Council for Civil Liberties also raised concerns about the restriction of individuals’ rights in the government’s emergency legislation.
She said it was important that there was more guidance around what constitutes a lawful reasonable excuse for not observing restrictions.
“A situation where people are uncertain about what guidelines are legally required or what behavior is or isn’t now illegal is simply untenable.
“Laws must be published in advance and government must be very clear about what is a law and what is not.”
She described last week’s pub grub regulations as “unnecessary and inappropriate”.
“It’s clear the human rights tests of necessity and proportionality have not been applied to these regulations and if they had they would not have been met,” she said.