‘I did not break any law’ | Police enforcement of the lockdown – legal powers and practice
Posted on September 15, 2020
Written for Trinity College Dublin's Covid-19 Law and Human Right's Observatory. A link to the article on their website is available here. Updated 14 September 2020
What is a ‘Lockdown’?
Over the past year, governments worldwide have used ‘lockdown’ strategies to suppress transmission of Covid-19. But this has meant different things in different countries. Some authoritarian regimes have imposed tough restrictions on public movement, with penal sanctions attached. But in Ireland - as in most Western democracies - ‘lockdown’ has involved a combination of ‘soft’ guidelines without sanctions for breach; and ‘hard’ rules carrying the force of criminal law.
However, the status of specific rules and consequences for their breach have often been unclear. For example, many assumed wrongly that over-70s were subject to sanctions if they broke the ‘cocooning’ rule during the early stages of lockdown. But this was just a public health guideline, unlike the rules prohibiting movement outside two and five kilometre zones over the same period, breach of which did carry criminal penalties.
The blurred line between different types of lockdown rule was memorably highlighted in August 2020 by former EU Commissioner Phil Hogan. In his resignation speech following disclosures about his movements around Ireland upon return from Brussels while ostensibly in quarantine, he stated that, while he may have breached public health guidelines, ‘I did not break any law.’
So which lockdown restrictions are public health ‘guidelines’; and which are criminal ‘laws’? This blog seeks to answer that question, in examining the legal basis for ‘lockdown’, Irish-style.
Statutory Basis for Lockdown Rules
The principal source of authority for the conversion of ‘public health guidelines’ into criminal justice provisions is the Health Act 1947, enacted at a very different time to deal with another highly contagious disease then devastating Irish society – namely TB. Section 31 of that Act provides the government with broad power to make regulations ‘for preventing the spread of infectious disease’. On 20 February 2020, over a week before Ireland’s first recorded infection, the 1947 Act was first invoked in the Covid-19 context, when the coronavirus was added by Health Minister Simon Harris to the list of infectious diseases covered by the Act through SI 23/2020.
On 29 February 2020, the first Covid-19 infection in this jurisdiction was recorded; and the first death on 11 March, the same date that the World Health Organisation declared a pandemic. The next day, Taoiseach Leo Varadkar announced the closure of all schools, colleges and creches, followed on 24 March by a series of wider movement restrictions and closures. Lockdown was in place – but it took further time to provide a clear statutory basis for the new measures.
Just prior to the announcement, emergency legislation had been passed over two days (19-20 March) to amend the 1947 Act. Section 10 in Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 inserts two new sections 31A and 31B into the earlier Act. Given the draconian nature of these provisions, Part 3 is subject to a sunset clause in section 2, and is due to lapse after 9 November 2020 unless extended by resolutions of both Dáil and Seanad.
The new section 31A empowers the Health Minister to make regulations ‘for preventing, limiting, minimising or slowing spread of Covid-19’, including regulations imposing restrictions upon movements. Breach of any regulation stated to be a penal provision carries a sanction of up to six months imprisonment, or a fine of up to €2,500. Gardaí are empowered to direct persons to take action to address any breach, and to arrest any person who fails to comply with such a direction.
Section 31B provides for the Minister to designate certain areas or regions as ‘affected areas’ due to ‘high risk of importation of infection or contamination with Covid-19’; and section 11 provides for the detention of persons to prevent spread of infection in particular exceptional circumstances.
It was not until 7 April that the Minister signed SI 120/2020, declaring the entire State to be an ‘affected area’ under section 31B, and thereby providing full statutory underpinning, including penal sanctions, for breach of certain rules and restrictive measures already announced. On 8 April, the Minister provided for additional police powers in SI 121/2020. Through more than 20 further Statutory Instruments introduced since then under section 31A, a series of other penal provisions was created. Breach of these provisions will attract the criminal sanction of a six month prison sentence and a €2,500 fine; they include rules on the wearing of face coverings on public transport; restriction of movement in certain counties; and the requirement that passengers returning to Ireland from abroad must complete a ‘passenger locator form’ and provide specified information under SI 181/2020 and subsequent regulations.
Several penal provisions have been revoked or made subject to time limits; they have generally secured public support, although concerns about potential over-reach have been expressed by the Irish Council for Civil Liberties (ICCL). A police union survey conducted in June also reported that gardaí were confused as to how to enforce certain of these measures. Detailed data on police enforcement are provided through regular Covid-19 statistics updates and a series of Policing Authority reports. The sixth such report (17 July 2020) discloses that between 8 April and 11 July, police exercised their Health Act powers a total of 353 times. Use of these powers rose sharply during the early weeks of lockdown and then declined, particularly following the easing of certain movement restrictions on 8 June. The report also noted that anti-spit hoods had been used 86 times by police during lockdown; this usage has been strongly criticised by the ICCL as breaching human rights.
Despite the easing of the general lockdown in June, legislation providing additional policing powers was introduced in August 2020 due to concerns over increasing virus transmission rates. The Criminal Justice (Enforcement Powers) (Covid-19) Act 2020provides gardai with new means to enforce rules restricting operation of licensed premises; and enables the making of closure orders in respect of such premises; like the earlier legislation, it will lapse from 9 November 2020 unless extended by Oireachtas resolutions.*
Controversy surrounded the introduction of this legislation and the signing of further regulations by the Minister for Health (SI 326/2020),* with initial reports that the government also intended to criminalise attendance at gatherings of more than six people in private houses; however this extension of penalties was deemed too harsh. Some Cabinet sources suggested that enforcement of rules restricting private gatherings would be carried out through the introduction of a ‘civil offence’, until it was pointed out that there is no such thing in Irish law.
Instead, the regulations, due to lapse after 14 September 2020, provide for a set of ‘restrictions’ on gatherings, events and business, most of which are not stated to be ‘penal provisions’ and which therefore carry no provision for enforcement or sanction.*
Throughout the months of lockdown, public goodwill and a strong sense of communal solidarity have been vital in maintaining compliance with public health rules imposing restrictions on public movement and activity in Ireland.
Such rules, when initially announced by government, often carried no penalty for breach but were later translated into criminal provisions through the adoption of regulations by the Health Minister under section 31A of the Health Act 1947. Many such penal provisions have now lapsed; some are or may be re-introduced through regulations restricting movement in particular counties or regions, as with the temporary local lockdowns imposed on Counties Laois, Offaly and Kildare during August.
Section 31A itself is due to lapse on 9 November, unless renewed by the Oireachtas. Given the far-reaching scope of the section, concerns remain about potential abuse of garda powers; but much about pandemic policing has been widely praised, for example the introduction of Operation Faoiseamh, the garda strategy for tackling increased incidence of domestic violence during lockdown.
Many ‘lockdown’ rules remaining in place are thus best described as public health guidelines carrying no penal sanction; such as the requirement that persons returning from abroad must ‘restrict their movements’ (unless coming from countries on a very limited ‘green list’). Where persons do not comply with these guidelines, they are ‘breaking no law’.
By contrast, those who break the rules around wearing of face masks on public transport, in shops and other settings are breaking the law, subject to a penalty of six months imprisonment or a €2,500 fine. Similarly, under the most recent legislation, licensed premises face severe sanction - including immediate closure orders - if they operate in breach of the rules. But those who visit private homes in breach of current guidance limiting numbers to six persons (under SI 326/2020 Regulation 5)* are not subject to criminal sanction, even where house parties involve very large numbers – although the gardai do retain pre-existing non-Covid powers to deal with rowdy gatherings under the Criminal Justice (Public Order) Act 1994.
It is no wonder that individual gardaí – and individual citizens - may be confused as to the extent of enforcement powers and the availability of criminal sanctions. Indeed, serious concerns about lack of clarity on the attachment of penal sanction to public health guidelines were raised by a range of speakers at hearings conducted on 9 September 2020 by the Oireachtas Special Committee on Covid-19 Response. But one thing is clear.* Ultimately, since lockdown rules were first announced internationally, experience in Ireland and elsewhere has shown that compliance is more effectively achieved through soft mechanisms like consent, cooperation, and a spirit of solidarity, rather than through the blunt instrument of the criminal law.
*Points added after passage of Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 on 10 September 2020.