Are Covid Restrictions Unconstitutional?

Most people have accepted the Covid restrictions as necessary and proportionate to the crisis we face. However, in a republic with a constitution which expressly limits the power of the government to infringe on individual rights, the exercise of extraordinary powers is illegal even if the public gives its consent. This is particularly true when that consent is implicit—the public has simply gone along with it—rather than explicit, being approved of by vote, as all consent is necessarily granted in a democracy. Forcibly closing businesses and places of worship, closing both public and private schools, confining people to within 5km of their home, and restricting gatherings to small numbers certainly seem to be extraordinary powers exercised by the government, but are such actions expressly prohibited under the Irish constitution?

Article 40.4.1. states: “No citizen shall be deprived of his personal liberty save in accordance with law”. Fundamentally, constitutional law involves determining what is or was meant by particular terms and phrases, so the question is: what is meant by “personal liberty”? If you were to be incredibly reductive, personal liberty may simply mean freedom from arbitrary imprisonment, imprisonment without just cause and due process, but is that really what is meant by liberty? Do you really think that is what Éamon de Valera meant when he drafted the constitution? If it were, then de Valera must have considered Ireland free while it was under British rule, but I seem to have a vague memory that he started a war to win Ireland’s freedom from those same rulers. Surely, liberty entails the freedom to travel across the country to visit friends and family, surely it grants the freedom to have friends over to your house, or to open your business or go to work. Of course, as with most constitutional provisions, it comes with a caveat: “save in accordance with law”. Such caveats give the government and the judiciary significant wiggle room to justify extraordinary actions. Does the fact that Covid restrictions were passed by way of legislation mean that they are in accordance with law? Lockdowns are essentially equivalent to house arrest. Usually, those under house arrest are restricted to travel only to and from work, and may only otherwise leave for the purposes of exercise. Sound familiar? If a person were to be placed on house arrest without being tried for a crime, that would be unconstitutional. Lockdowns are no different, they place onerous restrictions on personal liberty and are not in accordance with law as they are arbitrarily applied to all citizens.

Article 40.6.1. states: “The State guarantees liberty for the exercise of the following rights, subject to public order and morality: – ii. The right of the citizens to assemble peaceably and without arms”. The right to peaceably assemble is generally considered to protect the right to protest and the right to association, such as union membership, but it also protects your right to have visitors over to your house for a meal, for a wake, or for a party. However, this right comes with a very large caveat indeed: “Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public”. If one were to take an originalist view, interpreting this clause as it was intended when it was written, the terms “danger or nuisance” were to refer to gatherings that were rebellious or riotous, or which gathered in dangerous areas such as a railroad tracks or in a building that was too small. The potential of a member of a gathering, who may have a disease but is unknown to have one, to spread that disease to others in that gathering was probably not a foreseen “danger” in 1937. The absurdity of a protest being broken up on the basis of the very laws which it is protesting is so offensive to the concept of freedom of assembly that it makes the government look downright fascistic. Slightly less absurd is the proposition that a protest of hundreds of people could be expected to socially distance. However, given the broad berth of interpretation granted by this clause, it is unlikely that such an argument would pass muster in the High Court.

No such limitation is placed on the freedom to practice one’s religion. Article 44.2.1. states: “Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen”. Neither “public order” nor “morality” can be interpreted to mean the preservation of public health. Public order crimes are defined as “actions that do not conform to society’s general ideas of normal social behaviour and moral values” (which, ironically, would make the government’s actions public order crimes). As such, the freedom to practice religion by attending mass is inviolable, even during a pandemic. One might argue that the limitations placed on freedom of assembly in Article 40 apply to the practice of religion, but if that were the case, Article 44 would refer to the limitations set out in Article 40 or would reflect the same language of “danger or nuisance”. Both Article 40 and Article 44 include the phrase “subject to public order and morality”, therefore the absence of “danger or nuisance” from Article 44 must be both intentional and legally significant. The only argument against this would be that “practice of religion” does not include attendance at religious services, which is an argument so thin that it needn’t be refuted.

Article 42.3.2. states: “The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social”. Given that many children, particularly special needs children and children from Roma and Irish Traveler backgrounds, are receiving no education whatsoever while the schools are closed, it is arguable that the State is not fulfilling its obligations outlined in this article. Even for those children who are learning remotely, one could say that their “social” educational needs are not being fulfilled either.

One might say that emergency times call for emergency powers, but the constitution explicitly states what is considered an emergency time, thereby excluding any other situations from being considered as such. Article 28.3.2-3 states: “In the case of actual invasion, however, the Government may take whatever steps they may consider necessary for the protection of the State, and Dáil Éireann if not sitting shall be summoned to meet at the earliest practicable date. 3° Nothing in this Constitution other than Article 15.5.2° (which prohibits the death penalty) shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law”. Only in times of war can the government assume emergency powers to enact laws which violate the rights laid out in the constitution. All other caveats to individual rights are expressed specifically in relation to those rights, as has been discussed in this article.

Nor does the constitution state that the government can violate any individual rights it wishes in the interest of the “common good”. Only in relation to property rights is the government allowed to violate an individual right in the interest of the common good. As Articles 43.1.1-2 & 2.1-2 state: “1. 1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods. 2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property. 2. 1° The State recognizes, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice. 2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good”. This provision would likely justify the forcible closure of businesses, but the fact that only this article makes allowances for the common good would thereby exclude other fundamental rights from infringement on the same basis.

There is more than enough justification to take the Irish Government to court over many of its restrictions, and a number of people are doing just that. Businessman Declan Ganley has taken a High Court case challenging the constitutionality of restrictions on religious services. A teenager charged with breaching Covid-19 movement restrictions is to challenge the constitutionality of those restrictions. A mere thirteen days after Press Up Group, a hospitality company, announced it would be making a constitutional challenge to the shutdown of bars and restaurants, the Government announced in its budget it would be providing compensation to businesses that were forced to close, which may suggest that they were concerned that the challenge would be successful. These challenges are yet to be heard in court and their success is not guaranteed. There is a wealth of constitutional case-law build upon the Irish Constitution, with added caveats and even added rights. Such case-law is beyond my purview, but this article outlines the key cases related to the Covid restrictions.

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