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Special Committee on Covid-19 Response debate -
Wednesday, 9 Sep 2020

Covid-19: Legislative Framework Underpinning the State's Response

I welcome to our meeting the witnesses from the Venice Commission of the Council of Europe and the Supreme Court of the United Kingdom. They are joining us by video link to committee room 2 to discuss legislative frameworks in other countries. Dr. Gianni Buquicchio is President of the Venice Commission of the Council of Europe. Lord Sumption is a retired justice of the Supreme Court of the United Kingdom. Both are welcome to our meeting this morning.

I must highlight for Dr. Buquicchio and Lord Sumption that the constitutional protections afforded to witnesses physically attending in the Houses of the Oireachtas before committees may not be extended to witnesses giving evidence from a location outside the parliamentary precincts. No clear guidance can be given on whether, or the extent to which, the evidence given is covered by absolute privilege of a statutory nature.

I call Dr. Buquicchio to make an opening statement, if he is in a position to do so. The video link seems slightly off. If he is in a position to give an opening statement, can I ask that he do so now and that he try to limit his statement to five minutes or so to allow time for questions and answers? It seems there may be technical difficulties. Can Dr. Buquicchio hear me? Could it be that the microphone is muted?

Perhaps we will move to Lord Sumption, if that is okay. Can Lord Sumption give an opening statement? If he could limit it to five minutes to allow time for questions and answers, we would greatly appreciate it. Can you hear me, Lord Sumption?

Lord Sumption

Yes I can, thank you.

Thank you. I invite you to give an opening statement of five minutes or so, outlining the legislative and regulatory framework in the United Kingdom and any other points which you wish to make, following which I will open the session to members to ask questions and, hopefully, receive answers.

Lord Sumption

I have submitted a memorandum in writing about the framework in the United Kingdom. It consists of three pieces of legislation, one of which is the Civil Contingencies Act 2004, which is a general emergency powers legislation and covers, among other things, public emergencies. The second is the Public Health (Control of Disease) Act 1984, which, in its current form, dates from 2008 when there was an amendment that introduced the powers which are currently relevant. The third is legislation passed in March of this year specifically to deal with the coronavirus, entitled the Coronavirus Act 2020. It is concerned mainly with the financial implications of combatting the coronavirus crisis, but also contains some provisions governing police powers, control of movements and so on.

The United Kingdom has rather controversially opted for the public health Act as the legal basis for the measures it has taken. The reason this is controversial is that many lawyers, including me, consider that this Act does not confer specific powers on the Government to impose a lockdown. It contains a number of specific powers, but not that one. However, there has been no effective legal challenge to what the Goverment has done and that is the basis on which it has happened. This is the only piece of legislation relevant to what the UK Government has done.

In my memorandum I have suggested that the United Kingdom experience has two main lessons for other jurisdictions. First, if the Irish Government proposes to impose measures that drastically interfere with personal liberty, it will need to be absolutely specific about it in the primary legislation. The UK legislation is only specific enough in the case of the Civil Contingencies Act 2004. The Act which the United Kingdom Government has chosen to use is not specific. I am not an authority on the law of Ireland. However, my understanding is that the matter is governed primarily by amendments to the Heath Act 1947, which were enacted in Ireland in March of this year, and that section 31(a) of that does confer specific power to impose a lockdown. That is one mistake made in the United Kingdom that has not been made in Ireland.

The second lesson which I would suggest arises from the UK experience is that if the Government is going to confer extremely drastic powers on the Executive or Ministers, it is extremely important to have a very high level of parliamentary scrutiny. These powers should only be available subject to parliamentary confirmation and regulation and they should have a very limited duration and be open to renewal. It seems to me that for democracy it is absolutely fundamental that the Legislature should not forfeit pretty well day-to-day control of what Ministers are doing with powers which in any normal circumstances would be regarded as inconsistent with basic democratic laws. I have read the Health Act 1947 of Ireland and while I must emphasise that I am not an authority on Irish law, it seems to me that the provisions for parliamentary scrutiny are virtually non-existent. That seems to me, as a democrat, to be questionable. I think that is all I need to say.

I thank Lord Sumption and I now invite Dr. Gianna Buquicchio to make his opening statement.

I hope it will be possible for him to do so in light of our technological difficulties. We will then open the floor to members for questions and answers. Can Dr. Buquicchio hear us?

Dr. Gianni Buquicchio

Yes. Can the committee members hear me?

Yes, we can. Good morning. I thank Dr. Buquicchio for joining us and I invite-----

Dr. Gianni Buquicchio

I cannot see the members now.

We can hear Dr. Buquicchio so if he wishes to make his opening statement, we would be grateful.

Dr. Gianni Buquicchio

Okay. I will do that. First, I thank the committee for the invitation to address it. My short presentation will not refer to the Irish response to this crisis but I will instead look at this crisis from a comparative law perspective.

Emergency measures may affect the normal functioning of state institutions and the democratic process. They often involve additional limitations on fundamental rights and freedoms. This is inevitable and the Venice Commission has always acknowledged that. That said, at the Venice Commission we believe in the idea of a limited government based on democratic principles and the rule of law. Even in an emergency, these fundamental principles should be respected.

Our commission has studied emergency regimes in a number of countries and has prepared general reports on this matter. I refer in particular to our Rule of Law Checklist and to a more recent report, Respect for Democracy, Human Rights and the Rule of Law during States of Emergency, published last June. We have elaborated specific benchmarks for exceptions from the rule of law principles in emergency situations that may be tolerated. I will focus on the most important.

An emergency regime should be laid down, preferably, in the constitution and in more detail in a separate law and, if possible, an organic or constitutional law. That being said, there are different models on how the constitutional order may deal with emergency cases. In the members' country, the Constitution does not regulate these matters in detail, besides a mention of war and rebellion in Article 28. This model exists in a number of other European countries in which emergency regimes are not entrenched in their constitutions. This is the case, for example, in Norway, Denmark and Switzerland. The constitutional doctrine in these countries acknowledges the situation of a constitutional necessity but, as far as I know, this doctrine has not been invoked in practice since the Second World War.

Many countries have pre-existing legislation that contains instructions that are more or less precise on what the government may do in case of war, earthquakes, epidemics, etc. As I have said, it is preferable that these rules be discussed and adopted in advance in times of peace when the normal procedure applies. The Covid crisis demonstrates that certain situations cannot be foreseen and that this crisis is all-encompassing and is much larger than anything we have experienced before.

There are two possible options. The first is for a parliament to meet urgently and develop new legal rules or to give new powers to the executive. Many countries did this during the Covid-19 crisis, including Ireland, which amended its Health Act. The downside of this approach is that parliamentary procedures may be too lengthy and complicated for a sufficiently quick response. In addition, in the context of an epidemic, the parliament may be simply unable to meet.

The most obvious solution is to adjust parliamentary procedures. For example, the German Bundestag quickly amended its rules. It reduced its quorum, provided for electronic voting and closed hearings for the public, etc. In Sweden, leaders of all political parties represented in its parliament concluded an agreement that only 55 members of the parliament, representing their parties in proportion, would take part in plenary sessions.

This is a temporary solution similar to the war delegation which is a mini parliament during war time provided for in the fundamental law of Sweden.

Alternatively, and this is the second option, the government may be given the power to act quickly before parliament can intervene. Many constitutional orders provide for a declaration of a state of emergency which gives the government the power to adopt decrees having the force of law. In Austria, for example, if the parliament cannot meet, the president of the country, jointly with the government, may take such temporary measures by way of provisional law amending regulations. In Italy, under Article 77 of the constitution, the government may adopt decree laws in sudden cases of necessity and urgency.

If the constitution or the legislation gives the government a broad mandate to legislate in emergency situations, it is important to follow certain rules and provide external checks on the government's powers. First, the law making power of the government should be strictly limited in time. Moreover, changes introduced during emergency situations should not have a permanent effect. The main purpose of emergency measures is to overcome the emergency and to return to normalcy. Emergency decrees or other emergency measures should not be abused to introduce permanent changes in legislation, especially in institutional arrangements. Next, it is crucial, as soon as it is practically possible, for parliament to exercise its supervisory function and review these measures.

In addition, actions of the executive should be subject to effective judicial review. The courts should be able to assess the proportionality of specific measures taken by the government. This judicial review will be supplemented by a review of the constitutionality of emergency legislation by a constitutional court where it exists. Speaking of proportionality, we understand that the state's margin of operation in times of emergency is much larger than during other times. This is particularly true in the current situation where information about the virus and the most efficient ways of combating it is scarce or uncertain. However, a larger margin of operation should not make judicial review meaningless. In particular, the courts should ensure that the crisis is not used by the government to limit rights for ulterior purposes, for example, to silence the political opposition.

I will shorten my speech. The members of the committee have received my original text.

Thank you for that. I will now open the floor for questions from Deputies. First, I call Deputy Carroll MacNeill.

I am sorry, but we lost the connection with the committee room for a few seconds. I thank the two witnesses for attending and being of assistance to the committee today. The rule of law and its operation are always important and never more so than when citizens are in real danger from any source, be it an external threat or what we have all experienced in the last number of months. While this seems like a step to the side for the work of this committee, which has been focusing on sectoral and Government responses to the management of the pandemic here, it is incredibly important that we are talking about the rule of law and the maintenance and respect for the rule of law as well as how we behave predictably as a nation and as nations together based on that.

I have a number of specific questions for Dr. Buquicchio. I hope I am pronouncing his name correctly.

Dr. Gianni Buquicchio

It is a very difficult name.

It is a very difficult name to pronounce.

Thank you. Dr. Buquicchio referred to the "margin of appreciation". What specifically does he mean by that, in respect of the judicial review? Is he saying that governments basically have a large degree of flexibility in the approach that they are taking and as long as they are not actually transgressing on civil liberties they can take a broader approach in these circumstances? I ask him to clarify what he means by "margin of appreciation".

Dr. Gianni Buquicchio

This is a large crisis and of course the response to it is exceptional. The clauses of exceptions are those outlined in the Human Rights Convention of the Council of Europe.

Obviously, Dr. Buquicchio has gone through the different parliamentary and executive responses in different parts of Europe. Our own research in this Parliament indicates that the real difficulty has been the voting arrangements in different parliaments. Parliaments have come up with different solutions for ways of meeting and for scrutinising executive decisions in the management of the pandemic but the main difficulty has been with voting. Dr. Buquicchio referred in his statement to taking the long view and the luxury of being in the position of being able to take a long, systemic view on how to plan for these things over time. Is that correct? Is that what he is advising parliaments to do now in the context of the next pandemic or the next big issue that might disrupt parliamentary scrutiny?

Dr. Gianni Buquicchio

The most important thing about this coronavirus crisis is that we are learning a lot of good lessons for the next crisis. This will not be the last one. Unfortunately I fear that we will have more pandemics like this one, if not even more serious. Therefore, voting and electoral rights are very important. We studied this issue in our June report on human rights and democracy during the pandemic crisis. There were different situations at play. There were cases in Europe where elections were planned and were held. In Holland for instance, they were postponed for a little but in the end, they were held. The situation in France is one which deserves more in-depth study. There the lockdown intervened after the first round of local elections and the second round was postponed for about two months. This postponement was agreed between the political stakeholders and the Parliament did intervene. However, if the postponement had been for longer than two months, that would have required a law of the Parliament or the holding of the two rounds again.

Specifically, the problem we have with the Irish Constitution is that it requires Members to be in a particular physical place when meeting and when voting as Members of Parliament. That has been a barrier to exercising the required degree of parliamentary scrutiny so we are trying to look to the future to see what arrangements we might make.

I wish to ask Lord Sumption about what he said with regard to the health Act and specifically what he said on ongoing parliamentary scrutiny vis-à-vis the health Act. Would he like to elaborate further on that? We will have a number of other witnesses who will speak to that point later.

Lord Sumption

Under the Act which the UK Government should have used, the one which most obviously applied, namely, the Civil Contingencies Act, states that in an emergency the Government can bring regulations forward which have provisional validity for seven days. That is to say they require no parliamentary approval until the end of that seven-day period.

Within seven days, they must be confirmed by the Parliament and thereafter must be reconfirmed every 30 days. That seems to me to be an acceptable compromise. [Inaudible.] That is how the system ought to work in the UK. However, the decision to use other legislation which was not designed for emergencies of this scale has meant that the provisional validity of the regulations in the UK is much longer than seven days, at 28 days, and the regulations could remain in force for up to two years. That is very unsatisfactory and it is not a model I would recommend to anyone else.

What is Lord Sumption's view on the exercise of voting rights by Members of Parliament and their being present for voting? I ask him to address the functionality of the Parliament in terms of confirming the regulations.

Lord Sumption

In the United Kingdom, the regulations were originally brought into force on the day after Parliament moved into recess. As such, nothing happened for nearly a month after that. There was then an extra 28 days thereafter to get confirmation. That was not at all satisfactory. In the UK, for the protection of the health of Members of Parliament, no more than 60 MPs have been allowed into the chamber at any one time.

I have listened to the comments of Dr. Buquicchio. I think an important distinction must be drawn between different kinds of constitution. There are constitutions that work on a party list whereby, effectively, it is the parties that are represented in the parliament. In that kind of system, one can see the logic of having what may be referred to as a mini-parliament of, in the case of Sweden, 55 members. However, in Britain and, as I understand it, in Ireland, members of the public vote for Members of Parliament by constituency and not by party. That gives rise to a particular problem. If the population of a particular geographical constituency elects a Member of Parliament to represent that constituency, it seems to me to be a constitutional outrage to exclude that Member from the Chamber. It is possible to have a virtual chamber, but that only works for a limited number of Members. Under the constituency system, there may come a point at which one must choose which is more important: the health of individual Members of Parliament or their high constitutional calling. To my mind, the second of those should take priority.

I agree. One of the proposals the committee may consider is the provision of remote voting to enable all Deputies to participate. I thank the witnesses for their participation.

I thank Lord Sumption and Dr. Buquicchio for giving of their time and sharing their expertise. I direct my first questions to Lord Sumption. Obviously, the pandemic is an extraordinary event, but it is not an unprecedented one. However, the response of political systems in Ireland and around the world has been unprecedented. In terms of that political response, has too much emphasis has been placed on public health advice to the exclusion of other important factors that we, as politicians, should also be taking into account?

Lord Sumption

The Deputy is asking me that question not in my capacity as a lawyer but rather in my capacity as a citizen. As a citizen, I do think that is the case. The amount of deprivation of liberty that is authorised in a democracy is not simply a question of health policy. Health policy certainly comes into it, but it is also a legal, constitutional, economic and education question. Above all, it is a moral question.

Weighing up all these different considerations, is necessarily a matter of political judgment. The question really is how far should one allow clinical and medical considerations to outweigh the many other factors that make up the vigour of human life in a free and open society like ours? That simply is not an issue which could currently be delegated to the scientists, even if the scientists agreed, which they do not.

I refer to the laws that this House of the Oireachtas creates. Obviously, we are all politicians in this room and I am conscious that the witness is a lawyer, but the laws that we make are very much moulded by policy decisions and the reaction that we have to the event, namely, the pandemic. I have a concern that in our response to this pandemic, we are not taking into account other factors, such as the mental health impact that the restrictions are having on elderly persons, the educational impact this is having upon younger people and children, and the impact it is having on other individuals who are not suffering from Covid-related illnesses. I am conscious that the witness is a lawyer, but he is also a historian. What, does the witness believe, is it about this pandemic that has resulted in such an unprecedented response from governments and parliaments around the world?

Lord Sumption

I agree with the Deputy's observation at the outset that this is not an unprecedented situation. I think the main reason why the response has been unprecedented, certainly in Europe and North America, is that we have got rather complacent about our capacity to overcome natural forces. We have a very considerable capacity to do that, but it certainly is not unlimited. There have been epidemics and pandemics before over the last 40 or 50 years, but they have hardly touched Europe or North America. That has given us a sense of invulnerability, which we are now learning, was a mistake. We are not actually invulnerable. There are many reasons the reaction has been so extreme, but by far the most important is that we have come to believe that there is nothing that the state cannot do to protect us. That is something that is borne of our extremely fortunate experience over the last half century. It is not going to continue. We are likely to have more pandemics of this kind and we have to develop a kind of sense of proportion, which I am afraid we have forgotten over the last century since the previous comparable pandemic, which was the Spanish flu pandemic between 1918 and 1921.

Obviously every crisis produces its own vocabulary, and the word that this crisis has produced, which seems to instill fear in the Irish people, and I think it probably also instills fear in people throughout Europe and the rest of the world, is this term of "a lockdown". As the witness has indicated, that is a legal measure that the state can introduce for what it believes to be the purpose of trying to reduce the spread of the disease. I ask the witness, legally, in the United Kingdom, is there a basis under the Public Health Act to effect a lockdown, and if there is, what does the witness believe is the impact and the success of a lockdown in terms of suppressing this disease? Or does it merely delay the spread of it?

Lord Sumption

The answer to the first of those questions is that, although the Government of the United Kingdom believes that the Public Health Act confers power to impose a lockdown, I do not actually agree with it. I think it does have such power under other legislation, but that other legislation would subject it to a much higher level of parliamentary scrutiny, which may be the reason it has not chosen it. As regards the effectiveness, this is essentially a question of epidemiology. I can only refer to the epidemiological advice which the UK Government received on 25 February of this year, and again on 16 March.

It was informed by its experts in very clear terms that the effect of aggressive isolation measures, such as a lockdown, was not to suppress the peak incidence of the disease but simply to spread it over a longer period, and it would simply come back once it had become endemic, so it would be sitting there waiting for us when the measures were lifted. To be effective, these measures would have to remain in force indefinitely until there was an effective vaccine, which in February or March we thought might take as long as 18 months.

There is a serious question about the effect of lockdowns. The view expressed at the outset of the crisis by the British experts, which makes more sense and has been borne out by the experience of recent weeks across Europe, is that the virus will simply bounce back when the measures are lifted with the result that the effect of the measures is primarily to prolong the agony and increase the economic dislocation and the social and educational damage without achieving a corresponding reduction in the long-term impact of the disease.

Members of the Irish Parliament are in a different position from members of the United Kingdom Parliament because there is a written Constitution in this country and we as politicians cannot enact any law which is inconsistent with our written Constitution. We have that supervisory shroud above us to prevent us going beyond what is permitted by the Constitution. However, when one looks at the legal framework in place in our response to the pandemic, there seems to be four levels in place here. First, there is the Constitution, which guarantees personal freedoms and fundamental rights. Then, as Lord Sumption indicated, there is the statute, namely, the Health Act 1947, which was amended this year and a new section 31A inserted. It gives the Minister for Health power to make regulations, and there have been a series of regulations that have been made by the Minister for Health over the past four months or so. Those regulations change quite frequently. Beyond the Constitution, the Act and the regulations, the Government also issues guidelines. These have been quite controversial recently when individuals got into difficulty for breaching the guidelines. We seem to have three active levels of State regulation, namely, the Act, the regulations and the guidelines. What would Lord Sumption say in respect of an ordinary citizen who is trying to find out what he or she can and cannot do and whether we need to be much more specific in telling them what can and cannot be done under our legal system?

Lord Sumption

The United Kingdom has exactly the same three levels of legislative action and exactly the same problem about the status of guidelines. The guidelines issued from time to time by the UK government have gone a lot further than anything in the regulations. It is clear in the United Kingdom, and I presume also in Ireland, that guidelines are only binding in law so far as they are also reflected in regulations which are within the powers conferred by the statute. In the United Kingdom, the Government has not been nearly clear enough about what is guidance and what is law. It is fundamental that it should be.

In the UK, at the outset back in March and early April, the police started enforcing the Government guidelines in circumstances where there was no legislative basis for them. That came to an end quite quickly, because in the middle of April, the College of Policing, which was responsible for giving general guidance on the exercise of police powers to the police forces throughout the country, produced a very helpful document on a single page which told every policeman in the land what he could and could not enforce. That was an extremely positive and productive thing to have done, but it was not done by a Ministry but by the police. The Government would have assisted the process very much had it been much clearer from the outset about what was advice and what was law.

May I ask Dr. Buquicchio a question?

Yes, but I ask the Deputy to be very brief.

I will. Dr. Buquicchio stated that any measures taken by a state in response to the pandemic should be proportionate. Proportionality is a principle in this country's legal system and that of most European countries. When do the laws which have been introduced here and which seem to be consistent with laws throughout Europe extend beyond what is proportionate?

Dr. Gianni Buquicchio

First I would like to comment on earlier questions concerning the advice of scientists. They are indispensable because politicians and members of the Government are not specialists, but political decisions belong to the Government and the Parliament. The scientists are there only to advise, not to take decisions. The Deputy is right to stress related problems concerning mental health and education, etc. These are really serious problems which have not yet been solved. Next month we will see the impact of these exigencies on the education of students. Schools and universities in many countries were closed and students lost almost a full year of real education. Teleworking was available but it is not the same as real participation in the life of a school.

The Deputy asked about levels of response and proportionality. There are three important tests. The first is necessity, that is, the measures must be necessary. The second test is proportionality. Measures must be proportionate to the challenges and problems. The last test, which is very important, is temporariness. The measures must not last for a long time. They must be temporary. Whether a measure is proportionate depends on the knowledge at the time the measure is taken.

A question about limits to the movement of people was raised earlier. I refer to paragraph 1 of Article 5 of the European Convention on Human Rights, which allows for limits to the movement of people with the legitimate aim of preventing the spread of infectious disease. These are the points I wished to add to our discussion.

I thank Dr. Buquicchio.

I would like to ask a brief follow-up question which is relevant to the question Deputy O'Callaghan asked Lord Sumption. In Ireland we issued guidance that recommended against travelling abroad. Public servants have been penalised for travelling abroad. A constituent of mine who works in the public service in the mid-west was called in and asked to apologise for travelling abroad. He went to Spain, not to Texas or somewhere like that. He stayed within the European Union.

Very high-profile people have been penalised for travelling abroad. This is guidance, but it seems that the coercive powers of the State are being used. Public servants are being told that they cannot go against the guidance. If they do, they must take unpaid leave afterwards and may have to apologise. There is no doubt that they will be shamed. Is that in accordance with the European Convention on Human Rights? Does a restriction on the right to travel have to be pursuant to law? Can a Government simply advise people not to travel abroad, but then punish them if they do not take the advice?

Is that adequate under what is envisaged by the European Convention? I ask Dr. Buquicchio in the first instance and perhaps Lord Sumption may wish to come in.

Dr. Gianni Buquicchio

As I said, the restriction of movement of people within or outside the country is permitted for the legitimate purpose of combating the infectious disease. The problem is with discriminating between normal citizens and civil servants. I know that, for instance, in some countries-----

I do not mean to be unfair.

Dr. Gianni Buquicchio

-----for example, Denmark, the members of the Supreme Court cannot travel abroad because the governing department thinks that they must be safe to exercise their duties. But a generalised permission to travel abroad has occurred in many countries of Europe, especially in France, Switzerland, Germany, etc. Even for us, in summer we could not cross the border with Germany for several weeks. This is possible. Of course there must be a legal basis for doing this but it can be permitted by the European Convention.

So we must have it in law in either primary legislation or secondary legislation.

Dr. Gianni Buquicchio

Yes, exactly.

Just out of interest, when did these travel restrictions in Europe end? Dr. Buquicchio mentioned that Italians could not cross the German border. When did these restrictions typically end? I know every country is different.

Dr. Gianni Buquicchio

This is a much larger problem because this shows the lack of harmonisation at EU and other levels. In my opinion all these rules must be co-ordinated and harmonised in Europe, the Schengen area and internationally in respect of other countries outside Europe. As the committee is aware, the epidemic is increasing again in France, Spain and so on. There are some countries which are again taking new measures to restrict movements between the borders. I have been informed that the European Union will discuss this chaos, because it has been chaos up to now, on 22 September to try to harmonise all the legislation concerning reciprocity between the different countries. There must be one European rule.

Indeed. We all look forward to that.

Lord Sumption

Chairman, I think perhaps I can answer that question. For the countries within the Schengen area, the restrictions ended in principle on 15 June of this year. The restrictions as regards relations between the Schengen area and non-members of the European Union came to an end on 6 July. In both cases, that was without prejudice to the right of individual states to introduce new restrictions if they thought it necessary.

As to your main question as to whether this should be embodied in law or whether it is enough that people are disciplined for failing to accept Government advice, my answer is the same as that of the last witness. It seems to me to be fundamental that it should be embodied in law, not just under the European Convention but also as a matter of basic constitutional propriety under a common law system such as both the United Kingdom and Ireland have. Civil servants are citizens as well as employees of the Government. Where they choose to go on holiday belongs very much to their private lives as citizens.

I would answer the question by saying that a legal basis for restrictions on where they can travel is absolutely indispensable.

I thank the witnesses for their contributions today. I will continue in the same vein as the Chairman because it is an area of interest. The issue of foreign travel is particularly contentious in Ireland, and this follows on from the previous questions and the witnesses' responses. Ireland has a green list. A similar traffic light system is in operation in other countries across Europe and the world. We have Department of Foreign Affairs and Trade advices and guidelines from the Government. In the international experience, what is the legal basis for such restrictions? Are there legal bases in other countries that do not apply in Ireland? Where do the witnesses believe that improvements can be made?

Lord Sumption

I cannot speak for any country other than the United Kingdom. In the United Kingdom the measures were taken under the Public Health Act, which contains - in addition to the general powers to take steps to control the spread of disease - specific provisions about restrictions on entering at ports, airports and so on. There was a clear legal basis for them. Unlike the points I made earlier about the lockdown, it seems to me that the restrictions on travel being imposed by law in the United Kingdom are within the powers of the Public Health Act. Whether they are effective or proportionate is another question altogether. It depends, at least in part, upon how effective they are in restricting the spread of the disease, a subject on which there is very little research currently available.

I ask Dr. Buquicchio to comment on the international and European experience of the legal basis for the restriction of movement of people across borders and the introduction of green lists and red lists?

Dr. Gianni Buquicchio

I agree with Lord Sumption. I would add that it is necessary to have a legal basis in order to take these kinds of measures. I will stress one point that does not apply to Ireland. In Italy, there was a fight between the central government and the regions because individual regions took different measures from one another. At the end they decided to co-ordinate everything and there was only one regulation. I stress that for these kinds of limitations - green, pink or red, etc. - one needs a legal basis everywhere. This is the case in Europe for the pandemic.

Are there examples in Britain or in Europe of legal challenges being brought against Governments by individual citizens, corporations, airlines or businesses in the aviation or tourism sectors in respect of the restrictions that have been applied around freedom of movement and travel, especially across international borders?

Lord Sumption

There have been two major challenges in the United Kingdom.

The airlines began a judicial review of the quarantine regulations. This was resolved by agreement when the quarantine regulations were effectively abolished by the creation of wide-ranging exemptions in the course of July. Those exemptions are now being revisited and we may see a revival of that judicial review.

Second, there was a far more wide-ranging challenge by a businessman called Simon Dolan, who was refused leave to proceed with his application for judicial review because he was challenging the original lockdown rules back in March and it was said that he was too late. In a way, I believe that was unfortunate because it has been said that these UK Government regulations are beyond the powers of the UK Government. This is clearly one of the things that, it seems to me, is something the courts may wish to decide. That is what has actually happened in the UK.

Will Mr. Buquicchio comment on the international experience?

Dr. Gianni Buquicchio

I can comment on the situation in France because I am living here. Indeed, recently there was a decision of the préfet of our region or department to impose the wearing of masks everywhere in public spaces. This decision was challenged at the administrative tribunal which, in a way, modified the decision of the préfet. Then it was challenged or considered by the state council, which said that this obligation to wear masks everywhere in public areas was legitimate. This is one example. There was also a decision of the federal constitutional tribunal concerning the cancellation of an event. The tribunal considered that the event should have been maintained.

I wish to discuss a separate point and move off foreign travel. The challenge of striking the balance between public health considerations and economic, social and other considerations, including mental health and educational needs, is consistently raised. In Ireland, the Government is advised from a public health perspective by the National Public Health Emergency Team. In Britain, the Government is advised by the Scientific Advisory Group for Emergencies. Can the witnesses offer an opinion or point to international examples of how other bodies or decision-making forums are used to help inform government decision-making? Are there models that incorporate opinions other than public health advice that the witnesses can offer as an alternative? Can we start with Mr. Sumption?

Lord Sumption

As Deputy O’Rourke has said, the UK Government is advised by SAGE. SAGE not only has technical scientists but behavioural scientists as well. The group has expressed a view on how the public can be expected to respond to different policy options. What SAGE does not have is economic and social elements.

I am unsure whether the witnesses can hear us.

Lord Sumption

I can hear clearly. Can the committee members hear me?

We can now, but there was a moment when we could not.

Lord Sumption

The key to this was the point made by Mr. Buquicchio some minutes ago. He said that the function of scientists is to advise while it is the politicians who have to make the decisions. The range of factors that are relevant makes that unavoidable.

Can Dr. Buquicchio point to international examples of advisory models that inform Government decision-making?

Dr. Gianni Buquicchio

I can give one good example. It is a necessity to have transparency of the specific decisions or advice. We discovered this in Italy where the advice given by the scientific group which assisted the Government was not made public. This advice must be transparent and publicised as much as possible.

I have a final question for both speakers in regard to the legal basis for testing regimes and, it is hoped, in the not too distant future, vaccination regimes. What is the international experience of the legal basis for testing regimes as it applies during the Covid pandemic? The witnesses will probably have some experience of some regimes from certain quarters or of questions being raised in regard to bodily integrity and such issues.

Dr. Gianni Buquicchio

Will I respond?

Yes, please.

Dr. Gianni Buquicchio

The Deputy asked two questions, one on testing and the other on vaccinations. In regard to testing, Article 8 of the convention includes some limitations to the protection of the [inaudible]life when there are situations such as this crisis. In principle, testing can be imposed for protecting the health of the individual but also of the other people, which is even more important. In regard to vaccination, this must be a choice but I hope that everybody will choose to be vaccinated when vaccination is possible.

Lord Sumption

Shall I respond from the UK point of view?

Lord Sumption

The position in the United Kingdom is that there is a statutory power under the public health Act to require someone to undergo testing if there is reasonable grounds for believing that he or she is infected. There is no statutory power to compel to be tested people who are not believed to be currently infected. As to vaccination, there is no power to require people to be vaccinated. The public health Act expressly provides that the powers are not available to compel people to undergo any form of treatment, and vaccination would unquestionably be regarded as a form of treatment.

I welcome Dr. Buquicchio and Lord Sumption and thank them for their attendance and for their submissions to the committee. In his statement to the committee Dr. Buquicchio outlined the constraints and difficulties that many Governments have faced in responding with adequate legislation during the Covid crisis. He mentioned particularly that the German Bundestag quickly amended its rules and reduced the quorum required for electronic voting and closed hearings from the public etc., and the leaders of the political parties representative of Parliament concluded an agreement that only 55 members of Parliament representing their parties in proportion would take part in the plenary sessions. He went on to outline alternative models requiring that the Government act before Parliament does and what kinds of checks and balances may be put in place to ensure Governments do not overreach in their powers. In the case of the first scenario of Parliament convening under changed rules or in a reduced format, will Dr. Buquicchio outline what checks and balances would be appropriate in a situation where legislation is being passed by a reduced number of representatives?

Dr. Gianni Buquicchio

I thank the Deputy for the question. I am in favour of checks and balances everywhere but, of course, in certain cases there could be a reduction in democracy. That is why it is important to have scrutiny and surveillance by the parliament and the judicial power.

Does Dr. Buquicchio have concerns regarding legislative oversight in this scenario or in the context of time for such oversight?

Dr. Gianni Buquicchio

There must be parliamentary control.

I thank Dr. Buquicchio. I have a question for Lord Sumption. In his report to the committee, he states that in urgent cases regulations under the public health legislation have provisional validity, pending parliamentary approval, for 28 days and for any period when the British Parliament is not sitting, parliament cannot amend, remove or revoke them and that they remain in force at the discretion of Ministers for up to two years. Earlier in his paper, he makes reference to the Secretary of State's role and later there is a reference to government by ministerial decree. Is it possible for Lord Sumption to outline, with respect to this section, which Ministers have a decision-making role?

Lord Sumption

In theory, these decisions are made collectively by the British Cabinet. In practice, in what has been a feature of the way the British Government has worked some decades, there has been a progressive narrowing of the number of people who make these decisions. We are not absolutely sure how they are being made in the United Kingdom but it very much looks as if they are being made, essentially, by the Prime Minister, the Secretary of State for Health and a very small number of other Ministers - two or, at most, three - who are very close to the Prime Minister. My view is that this is not at all satisfactory because the broader the decision-making basis, the greater the measure of discussion, the larger the scope for challenge in parliament and the better the decision-making process is likely to be. Many people have remarked that the successive policies of the British Government on Covid-19 have chopped and changed. The British Government seems to have been taken by surprise by every new development and this has led to a loss in support for its measures to a very significant extent. That problem could have been reduced and possibly avoided if decisions had not been confined to such a very small number of people.

We appreciate the Deputy staying within the five minutes.

I thank the witnesses for their contributions. I will put my questions to Lord Sumption. He is on record as having admitted to not obeying Covid-19 regulations when they began to reach a level of what he termed "absurdity". What was his threshold for what became an absurd regulation with which he would no longer comply?

Lord Sumption

When I said that, I was referring to the fact that the lockdown had originally been justified on the grounds that it was necessary in order to enable the intensive care capacity of the National Health Service, NHS, to catch up. Although I disagreed with it, I thought it was at least a serious justification and defensible proposition. By the end of April and in early May, the position was reached where the NHS intensive care capacity had caught up but, nonetheless, the Government, at a very critical moment, decided it would continue with the regulations, although, in light of the epidemiological advice it was receiving, it was very difficult to identify any legitimate purpose for it.

There comes a point when the moral force of the law disappears and that point had been reached by then. Of course, anybody who decides not to comply with the law must be prepared to take the consequences, but the reality is that coercion only works if a sufficient number of people accept the moral force of what the government is doing, and we have reached the stage in the United Kingdom where the level of acceptance of what the government is doing is at a fairly low level.

Does the witness have a concern about the impact there will be when people of power, influence or privilege, or whatever way one wishes to put it, decide in their heads at a certain point that they are not going to obey laws or regulations? In particular, is he concerned that whatever valid questions there are, and there are many with regard to the legislative framework on which the response to Covid-19 is based, they can be subverted by elements in society that have no interest in democracy, such as far-right elements, conspiratorial elements and anti-health elements? Does he have any concern that actions such as his and the actions of others are lost and are then corrupted by those forces?

Lord Sumption

Of course I do. However, it must be remembered that sometimes a person will make a decision for perfectly responsible and morally defensible grounds which other people, who are much less careful about what they are doing, will take advantage of. I do not believe that is a sufficient reason for keeping silent about what I and many other people regard as a moral and constitutional outrage. Sometimes, in the interests of truth and honesty, one must put up with the fact that many unpleasant people might agree with one.

That is Lord Sumption's opinion in terms of being a holder of the truth there. I disagree because we are talking about a lockdown as something that is to be feared. Nobody wants to go into lockdown but I and many people remember lockdown here. It was a perfectly understandable response to a crisis that was scaring the life out of people all over the world. Many people felt safe during the lockdown and it served to reduce the numbers. We cannot live in lockdown forever and the challenge for Ireland, the UK and everywhere else is to get back to some form of normality across all levels while living with the virus. Does Lord Sumption believe that discussing lockdown in those fearful terms and talking about democracy being threatened and the rise of despots is a proportionate narrative of the reality of what is happening politically in our region or throughout the world?

Lord Sumption

Yes, I do. The way in which we govern ourselves is a great deal more important than the way in which we react to any particular crisis because that will live with us forever whereas the way in which we respond to a particular crisis may be mistaken or misguided, but the consequences will not live with us forever. I do not accept the Deputy's starting premise that the lockdown saved a significant number of lives. Over the long term it will be found to have saved very few lives, because unless the lockdown is maintained indefinitely, the infection rate simply rebounds afterwards. I also believe that in areas such as dementia, mental health and delayed diagnosis and treatment of cancer, the deaths occasioned by the lockdown may in the end not fall far short of the deaths occasioned by the disease. My answer to the Deputy's question is in part that I think history will look back on this as a monument of collective hysteria and governmental folly. That is a view many people would reject and I take it the Deputy would reject it, but it is a view that I and others hold.

It is a view I reject-----

Lord Sumption

Of course.

-----but I thank the witness for his contribution this morning.

I thank the witnesses for their contributions. I have three disparate questions so perhaps I will put them first and whoever wishes can reply.

Essentially a lot of public health advice is drawn from the European Centre for Disease Prevention and Control, ECDPC, but there is a quite a variation in how this manifests itself across different countries in terms of the advice given or taken. It was said earlier that it is up to the experts to advise governments but that it is up to governments to make decisions. Is there much deviation from public health advice across Europe? There is a very high level of adherence to such advice here and a degree of questioning of that by the general public.

My second question relates to the variation across parliaments. As was mentioned earlier, we have a written Constitution which requires Members to be present and voting in our Dáil Chamber. Remote voting would actually require a referendum which is not something we want to conduct in the middle of a pandemic. We also have an unusually high number of Independent Deputies so scaling down the numbers proportionately is more problematic in our Parliament. Are there any similar situations from which we could learn in terms of how to manage this? I will leave it at that for now but if there is time, I will come back in with a third question.

Lord Sumption

The scientific advice available to the UK Government from the Scientific Advisory Group for Emergencies, SAGE, is published online but with a delay of between six and eight weeks. Looking back, it seems that the advice has tended to change quite frequently and sometimes quite radically but it is quite difficult to determine to what degree Ministers have adhered to it. Certainly at an early stage, SAGE in the UK advised against coercive measures on the grounds that the Government would get a better response if the public were treated as adults. When they eventually changed their mind and went for a lockdown, they seemed to have been of the view that the lockdown should be maintained for a very long time, possibly until a vaccine was available. The degree of adherence to their advice has varied but in general, this has been because the Government has to take into account many factors other than the scientific ones. There is a limit, for example, to what people can reasonably be expected to put up with and there is also a limit to the amount of economic damage that societies can sustain. One cannot expect the adherence to be total in any country.

As to numbers of people in Parliament, I do not think I can really add to what has already been said. It seems to me that in a constituency-based system, especially one with a significant number of Independents, it is extremely difficult to justify a reduction in the number of people who attend the Chamber.

Dr. Gianni Buquicchio

I would like to add something, if I may. I am not saying that the advice of the scientific groups or councils is being more or less followed by governments. Of course, as Lord Sumption said, the economy and other important issues must be taken into consideration by governments.

I refer to the situations in Sweden and Italy. The Swedish Government decided not to impose a lockdown because cases were not particularly numerous and the number of deaths was also very low. On the contrary, a lockdown was imposed in Italy because thousands of people were dying every day in March and the following month.

On the issue of scientific advice, I wish to stress that even the scientific experts are not in full agreement. Their advice is taken into consideration and followed by the majority of the European Parliament, although there is sometimes deviation from that advice due to other considerations such as economic factors, etc.

In terms of the provision to the public of transparent and usable information of which they can make sense, such as knowing where cases are originating in order to be able to alter their behaviour, are there variations across Europe? I tend to favour a very high level of transparency and information being provided in a usable format such that people can act as adults and make decisions for themselves. Does providing information in such a manner contribute to public goodwill in terms of adhering to restrictions and driving behaviour?

Dr. Gianni Buquicchio

I agree with the Deputy. As I stated, the information or advice provided by scientists must be as transparent as possible. The problem is that normal people like the Deputy or me do not have a good understanding of what is happening. The information is not consistent or widespread. We know how many new cases there are worldwide each day but it can be difficult to find out how many new cases there are in a particular area, such as France, for example. The information must be provided in a much more transparent way such that everybody can make the necessary decisions.

The next speaker is Deputy Durkan. I apologise for not bringing him in sooner; that was my error.

Like other members, I thank the witnesses for addressing the committee and giving of their time. Unlike three other members who have spoken, I am not a lawyer. Rather, I am a layman and my interpretation of the rules and regulations may be slightly different from theirs. In the first instance, my belief is that guidelines are only guidelines and have no legal effect unless they are grounded in law. Are the emergency legislation and the existence of a declared emergency sufficient grounding to allow the guidelines to be enforceable and punishable? The Chairman also raised that issue.

I am conscious that Ireland is an island nation with an open economy that is heavily dependent on travel. The air route between Dublin and London is the second busiest route in the world, which is indicative of the amount of business that takes place. However, there are two types of travel: necessary and optional. To my mind, travel may be necessary for the conduct of business. To what extent can those engaging in business travel be protected in the countries they are travelling from and to? Can they expect to be treated fairly, openly and honestly and allowed to carry out their business in the current situation?

As previous speakers have noted, Ireland is different from many other counties as it has a written Constitution. We have available to us an alternative parliamentary venue which can facilitate the attendance of all Members of Parliament.

All Members of Parliament can vote and have voted several times in recent weeks. That facility is available to us, unlike some other countries.

The common good also plays a role and we must observe what is in the common good. The question arises whether the measures are adequately taken in the common good and are sufficient to ensure that adherence is statutorily required.

That is all. Unfortunately I must go to the House.

I apologise for not bringing the Deputy in earlier. I should have done so and it was an oversight.

Dr. Gianni Buquicchio

Guidelines or recommendations are not enforceable. To be enforceable they need a legal basis. For example, there are recommendations on how to wear masks correctly. These are not enforceable. The recommendation to wear a mask in public in open space was an administrative decision taken on the basis of legal advice. These are now compulsory in France, for instance.

Lord Sumption

Shall I respond from the perspective of what has happened in the UK?

Yes, please do.

Lord Sumption

I do not think there is any case, even in an emergency, for giving legal force to guidance. In almost all countries, and certainly in Ireland and the UK, the Minister makes these rules by regulation. If the Minister wants to give them legal force, he or she can do it by making a new regulation. Therefore, if the Minister wants their guidance to have legal force, they must express it in pure language that citizens can understand and do so in a regulation. It cannot possibly be good enough that something vaguer, say, guidance given at a press conference, be given the force of law because one of the essential elements of law is that it must be possible for the citizen to find out what the law is. For the citizen to look it up, it must be coherently expressed in words which allow for the minimum of confusion. Therefore, on whether there should be a right of power to give legal enforcement to guidance in an emergency, my answer is "no".

On necessary travel, there are serious practical difficulties in defining what travel is necessary as it would differ from one individual to the next. The law necessarily operates in blocks, it is a one-size-fits-all mechanism. I find it very difficult to understand how one could define the necessity of travel with any precision in something that was ascertainable as a matter of law or regulation.

In Ireland there has been a phenomenon where the Minister has made regulations, announced them typically on a Friday evening, saying they will take effect from Monday morning, but the regulations were not published anywhere until Wednesday. I have a private view on their status and whether they are legally binding in the interim between when the Minister announces the regulations and when the details are actually published. Will both of our eminent witnesses give their view on whether those regulations have to be adhered to or are binding? Even though the Minister may have announced the broad parameters of what they contain at a press conference, are they binding before someone can read the detail?

Lord Sumption

In my view they are not. It is a fundamental requirement, not least of the law of the European Convention for Human Rights, that something must constitute law and that it is an essential feature of law that it should be publicly available. An announcement that the Government proposes to do this or that is not the same thing as law.

To my mind, as a matter of the law of the European Convention on Human Rights, if a Minister says that a measure will take effect on Monday but is not published until Wednesday, it is not law until Wednesday. As a matter of domestic law, the measure can apply retrospectively, but that raises very serious problems with regard to the convention.

Dr. Gianni Buquicchio

I fully agree with Lord Sumption that the measures must have a legal basis and that the decision must be made public. The process depends on the country and can involve publication in the national journal, etc. The accessibility of law is a fundamental principle of the rule of law. One should be in a position to know what is law and what the law says.

I thank both the witnesses for that clarification.

I thank both our guests. Like Deputy Durkan, I do not have any legal background, so I will ask a few general questions. The steps the Government has taken in recent months have been intended to fight a pandemic, as was the case in every other country. In Ireland specifically, we were also trying to prevent our hospitals from being overrun. We do not have the capacity of countries like the UK or Germany. As a result, it was very important to restrict the spread of infection as much as possible. As Lord Sumption highlighted, as we begin to open up, we are experiencing the increased rate of infection that other countries are experiencing, although this seems to be mostly confined to younger age groups.

Since the beginning of lockdown, we have faced the closure of many sectors of the economy. I refer particularly to what are called "wet pubs", that is, establishments that do not serve food and just serve alcohol. Later in the lockdown, the regulations under the Health Act 1947 were softened to allow gastropubs to open. This allowed people to congregate and eat. We are hoping for the wet pubs to open in the coming months. I have spoken about the idea of regionalisation at meetings of this committee in recent months. At present, Dublin has one of the highest rates of infection in the country. The constituency I represent has one of the lowest but we have had to adhere to the national health advice. If there is a very low concentration of disease and if, ultimately, it is found that wet pubs in my constituency could have opened, are there grounds for judicial review? Could such a thing be considered if this pattern is repeated?

Lord Sumption

I can only answer that question in the context of the law of the United Kingdom. I am not an expert but I believe the basic principles are very similar in Ireland. The best way to challenge that type of problem would be to claim that a response is irrational. My view is that, as a matter of public law, the Government is entitled to a very wide margin of judgment in the area of rationality and a claimant would need a very extreme and obvious case indeed for a challenge to be successful. Having said that, looking at administration from the Government's point of view, there is obviously a lot to be said for fine-tuning the regional impacts of these measures as much as possible. Most countries in Europe have done this in one way or another. In the United Kingdom, we now only impose lockdowns in specific areas which have seen higher levels of infection. France has a system of green, red and orange areas. This system is under the control of departmental prefects and it seemed to work very well. For instance, it meant that at the height of the pandemic the scale of restrictions in Paris, where the infection rate was highest, was much greater than in Moselle or Dordogne, where the figures were much more favourable.

That seems to be a sensible way of doing it. Ultimately, this is a matter of political and administrative judgment. It is not easy to deal with it by law, which is essentially a blunt instrument. Of course, one has to have the power but, ultimately, the decisive factor is going to be the element of clinical, epidemiological and political judgment.

I thank Lord Sumption. I will speak to Dr. Buquicchio on the issue of air travel. Ireland's dependence on international access was highlighted. I know there are probably different protocols but is there anything within Dr. Buquicchio's office that can describe a European protocol for aviation to which Ireland might ultimately be obliged to adhere? We have most stringent airline protocols in terms of flying into and out of the country, whereas Germany and France have far more relaxed rules. Is there anything under European guidance that could impose a different scenario in Ireland in terms of aviation and air access?

Dr. Gianni Buquicchio

I thank the Deputy for the question. Unfortunately, I cannot answer as it is not within our competencies. I would like to come back to what Lord Sumption said just before that. I share his worry regarding the difference between parts of the country where the virus is more active and where it is not active at all. It was the case in France that after the first general lockdown there were different measures concerning different administrative regions or départements. Until some weeks ago, there was a local lockdown in one a part of France. It is possible evaluate all this afterwards. When the first general lockdown was decided, everybody was afraid of this virus, including the authorities of course, although some regions of the country were completely safe. Now they have learned the lesson and they are shaping their responses differently in the different départements. I am not talking about lockdown but wearing masks or allowing people to travel within a certain number of kilometres locally when it is really necessary.

I thank the witnesses for their presentations and for the time they are giving to us this morning. It is very much appreciated. I want to go back to the issue of co-ordination across Europe and in the UK. Do the witnesses feel that there could have been far more co-operation among member states on having a coherent set of regulations across Europe rather than individual states taking this on alone? I refer to instances where if something was the regulation in one state, the complete opposite was being done in another. From a European point of view, could there have been a lot more done in the context of how we tackled this problem? This is about looking at the lessons to learn from how we have dealt with this issue, the lessons to be learned as we move forward and putting a constructive set of proposals in place that can be implemented at very short notice.

Dr. Gianni Buquicchio

At the beginning of the crisis in Italy the Government tried to stop all the flights coming in from China. Many of these people, however, came to Italy via Germany or Switzerland etc. and they could not be identified at the border in Italy. They were Asian but nobody could identify if they were coming from China directly or from another European country. I have said already that I am very much in favour of the harmonisation of the measures surrounding travel at a European level, within Europe and outside. I hope Europe will succeed in this task. It is not easy because each country has its own views and it will not be easy to find a common harmonised solution, but I still hope for this.

Does the witness believe we now need to look at this in a co-ordinated way? We cannot look into the future to see how the virus will further develop. Do we need to work even harder together rather than as individual member states working on our own? In Ireland, for example, we have a scenario where a lot more flights are coming from a lot of different countries of origin into Belfast Airport, which is into the island of Ireland, whereas there are many more restrictions for flights into other airports in the Republic of Ireland. Does this further emphasise the need for closer co-operation between members states and the European Union?

Dr. Gianni Buquicchio

Yes. I agree with the Deputy. We need more co-ordination and co-operation between the different countries in Europe.

How would one progress that at European Union level?

Dr. Gianni Buquicchio

I do not know. It depends on the European Commission to take the necessary measures. There should be more co-ordination and closer co-operation between ourselves.

Lord Sumption

In the United Kingdom we have the most extreme example of what the Deputies are, quite justifiably, complaining of whereby different quarantine rules affecting different countries are enforced in England, Wales, Scotland, and Northern Ireland. I will not go into the politically controversial reasons for that but clearly the results are extremely unsatisfactory, as everybody recognises. The main problem about dealing with this is at a European Union level is that the conditions differ in different countries. It seems to me that the most that could be really agreed at a European level is a measure by which, in time, we could restrict travel. In Britain we have a loose understanding, which is really not much more than that, that there is a threshold infection rate above which people or countries would be placed on the red list for quarantine purposes. It would be possible to do that at a European level. I also take the view that many countries have taken about their national territory. I think that would be a view that is quite difficult to defend given the very different experiences that different countries have with their state of hospital resources and very different social habits.

The UK will be leaving the European Union. Let us look forward with regard to co-operation with the United Kingdom and in particular with the Ireland and Northern Ireland issue. Does Lord Sumption not believe that now is the time for both Ireland and the UK to sit down and come up with a framework for dealing with an issue like this, rather than trying to put it together the week an issue starts to arise?

One thing about Covid-19 was that it needed a fast reaction but there was no framework for dealing with it in most countries across Europe and the world. Is it not now time, in particular with the UK leaving the European Union, and Ireland being so close to the UK, to have a sense of a mechanism in place to enable work to start immediately an issue like this arises again?

Lord Sumption

I agree with that entirely. Earlier I talked about consultation and of course we have a common travel arrangement between the UK and Ireland. The countries of the Schengen Agreement in Europe have a common travel arrangement. If there is a common travel arrangement, it is essential to co-ordinate the arrangements made for restricting travel across borders or for imposing quarantine rules. Exactly how we do this is a difficult question.

The main emphasis of Deputy Burke's question is that it is important for the British and Irish Governments to co-ordinate as closely as possible with a view to not having anomalies like those mentioned by Deputy Burke, especially in circumstances where there is a transparent land border between Northern Ireland and the Republic.

I wish to touch on another issue which was dealt with earlier relating to checks and balances between the government, the houses of parliament and the courts system. I was looking at what is happening in Australia, where a national cabinet seems to have been established consisting of the Prime Minister and the premiers of the six Australian states. Is there a danger in something like this? I am not saying that people have exceeded their jurisdiction or have taken on more powers than they actually have. Are there lessons to be learned from what has occurred here in respect of ensuring that, while governments need to react appropriately, at no stage can they exceed their jurisdiction and remove the rights of people, especially the right of people to access the courts? Can we ensure that the role of the courts in different countries is not restricted? Are there lessons we can learn from what has occurred during the past six months in this whole area?

Lord Sumption

I think all European countries have allowed access to the courts. I am not conscious that this has been a problem. Given different national systems of law it is probably difficult to co-ordinate exactly, bearing in mind that judges are independent and form their own views. Of course we can harmonise the law, and there may be some scope for that, but we are never going to remove entirely the element of discretion that may be necessary to provide for problems specific to a particular territory.

My thanks to both of our witnesses. My name is Martin Kenny. I thank both Mr. Buquicchio and Lord Sumption for their time this morning in assisting us in all of this.

I read the submissions the witnesses made before the meeting and I have listened to them speak. One of the things that comes up clearly is the issue of emergency legislation that has come in relating to the pandemic which is about restricting people's freedoms. Most things that have happened in the second half of the last century and the early part of this century have related to expanding people's freedoms, allowing people more freedom and trusting people more in society to do things and to be competent and responsible.

However, this particular pandemic has brought us to a situation where we are reversing slightly. It has been the case in this jurisdiction for a long time that before a law is made there is deep and proper scrutiny of it. The pre-legislative scrutiny mechanism here is carried out by the committees of the Oireachtas. Where a law is proposed, it is first considered by a committee. In this case, it would be a matter for the health committee and, possibly, the justice committee to scrutinise it. Various people with expertise of various kinds would appear before the committee and give their opinions and views on it such that there would be a well-informed choice made by everybody before the law would progress. I would imagine a similar type system exists in most European countries and in the UK as well. We have had an emergency and, therefore, we have suspended the pre-legislative scrutiny model of doing things but it has been, to some extent, partially replaced by this committee in that it has been doing an element of post-legislative scrutiny with the assistance of many witnesses and international expertise, including that of our witnesses here today, being brought to bear on various issues over the past number of months.

On the concept of post-legislative scrutiny, is there a necessity to do it in a more formal, organised and constructive manner as we move forward, particularly in the case of legislation which is quite draconian in many aspects, is clearly seen as such and in normal times would be legislation which all parliamentarians would rail against? We are in extraordinary times and I believe that we need to be looking at these matters in depth. I would welcome the views of our witnesses on what mechanism should be put in place to ensure that happens even in the aftermath of the current crisis.

Dr. Buquicchio spoke first so perhaps he might respond first.

Dr. Gianni Buquicchio

I agree with the last speaker. It is very useful that the Parliament in full, or a specialised committee, can evaluate the option of the Parliament, post-legislatively but especially at the end of the crisis to assess, globally, what damage has been done. I would like to add, as I have said already, that apart from this consideration by the Parliament it is is also very useful and necessary that there would be a judicial review by the ordinary courts, or a constitutional court, where it exists. In France, for instance, a quick check of some measures has been done by the Conseil d'Etat, the highest administrative court in France, or even by the constitutional court concerned. These checks and controls and scrutiny are very useful and, I would say, indispensable.

Lord Sumption

Obviously, I agree with that but I think that the speaker was right to point out that there is a difference of approach between pre-legislative scrutiny and post-legislative scrutiny. When we are dealing with emergency powers, there will necessarily be very little room for pre-legislative scrutiny. Apart from anything else in a country where emergency powers are written into the Constitution, where it exists, as in the case in the UK, under previous existing legislation there would be no scope at all. The framework of regulations would be there and it would be couched in very general terms. What really matters is not the scope of the rules, but how the rules are exercised by Ministers. That is why I think it is particularly crucial to have post-legislative scrutiny. Where powers are being conferred on Ministers to govern by decree, the closer should be the degree of scrutiny of what the Ministers are actually doing with these powers.

That is an area in which the United Kingdom has fallen short, as most European countries probably have. It may well be an area in which Ireland has also fallen short but it is absolutely critical. If we are going to depart from the basic principles of democracy to the extent of allowing ministers to rule by decree, it is extremely important they be held on a very short lead indeed.

I concur with that. The issue of post-legislative scrutiny must be explored somewhat more. In recent weeks, we have seen that when legislation is introduced, regulations can arise from that which are the responsibility of the Minister. Sometimes these regulations bring in measures unforeseen in the debate on the legislation. It would be useful if we had a mechanism for scrutinising regulations prior to them being signed off on by a Minister. It would not be a terribly long or laborious process. This is not just from an Irish perspective but it might be beneficial across Europe and other countries. It might give people reassurance.

With all of this we are trying to reassure the public that while we are limiting certain aspects of liberty, we are doing it for the greater public good to ensure we protect people's lives and health, with all of us working together. There should be a sense of unity of purpose, not just politically but across the community and society at large. Sometimes that is inclined to break down, particularly if some of the regulations seem to fly in the face of what most ordinary people would call common sense. We have seen aspects of that in this jurisdiction and in others as well.

We need to examine the regulatory process, including how it is drawn up, to see if we can bring about more scrutiny. It is not to delay or in any way inhibit the power of a Minister but to simply be able to ensure that regulations make sense, that people can have buy-in and that we know all elected representatives can have a say. I come from a constituency in the north west, Sligo-Leitrim, which has very low numbers of Covid-19, and many people in my constituency feel aggrieved they cannot attend a football match, for example, while 40 of them could go to a bar to watch it on a screen, which is much more dangerous in many ways.

Common sense may not be as common as we thought, as we used to say, but we must bring sense to this. It would happen if regulations could be examined at a committee like this, before the Oireachtas or in any other parliament, to ensure proper scrutiny. This comes after legislation.

It is important to clarify that the clerk to this committee wrote to the Secretary General of the Department of Health at the outset, in accordance with our terms of reference, offering the services of the committee to scrutinise draft regulations before they are signed by the Minister. I wrote to the previous Minister for Health in a similar way offering the services of the committee, which is in accordance with the terms of reference. To date, neither the Department of Health nor the previous or current Ministers with responsibility for health have decided to avail of that offer.

It is something that should be progressed, if possible.

Perhaps it is something for future legislation.

I thank the witnesses for their time and input this afternoon. I have a question for Dr. Buquicchio. Earlier this year, at the beginning of the pandemic, how soon did the Italian Government respond with required regulations? We looked on in shock at the high rise in numbers across Italy. How soon were the regulations brought in and have they since been extended? Dr. Buquicchio earlier stated that some of regulations have expired but have some since been extended and if so, for how long?

Dr. Gianni Buquicchio

I thank the Deputy for his question.

First, the emergency situation means taking urgent actions. Italy was the first in Europe to call for a national lockdown in March followed by France some weeks later. All routes were considered good steps by the society - good steps because the epidemic was contained. Now Italy after the end of the lockdown sees new cases of the virus every day but the number of cases is much lower than those of other European countries. This proves that the measures which were taken and are still being taken are worthwhile. That said, the response of the Italian Government was appreciated by the society up to now but, of course, there could be some disappointment with some special measures. As I said already, the full action of the Government must be evaluated by the Parliament after the end of the crisis to learn some lessons for the future. This would be very important.

As I must leave the committee, I wish to say that according to our experience and observation of the situation in Europe, I can say that globally all the measures which have been taken have respected the rule of law and human rights. Among the 47 countries that are parties to the European Convention on Human Rights, only ten made a derogation under Article 15 of the convention concerning the protection of human rights. I said "globally" because I must note that in two central European countries the governments and parliaments tried to pass some draft laws which were not connected with the pandemic by using the measures taken during the pandemic. One concerned abortion and the other one in another country concerned some limitations to freedom of expression, which can be limited under the European Convention on Human Rights. However, in the case of this kind of pandemic, freedom of expression, except for fake news and other manipulations, should be preserved because the public needs to be well informed about all these problems.

I thank the Chairman and members of the committee. I hope this exchange was useful.

I appreciate your time, Dr. Buquicchio. Does Deputy Devlin have another question? If Dr. Buquicchio needs to leave us, please do. I realise we are over time. It is likewise if Lord Sumption needs to leave us. Otherwise I and Deputy Devlin have one question each. We have already taken a great deal of your time.

Lord Sumption

I can stay on until 12.25 p.m.

We will be well finished by then.

I thank Lord Sumption for his time. With regard to Dr. Buquicchio's point and in terms of Lord Sumption's earlier comments on the health or hysteria analysis of where we are and how the pandemic has been treated here or in any other jurisdiction, I agree with Dr. Buquicchio's point about reviewing and analysing the response of all national governments and, indeed, the international response to this pandemic. I turn to the earlier comments about the need for primary legislation to be in place to support those guidelines, or the secondary legislation that we are governed by in the current space.

I note that the UK had the Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984 among others, to which to refer. In the context of a future pandemic similar to what we are experiencing today, what would need to happen to underpin the guidelines? Is the witness suggesting a brand new Act or legislation?

We touched on Brexit earlier and I presume Lord Sumption expected that it would be mentioned on this call. In the event of a future pandemic and in the context of travel, which was mentioned earlier, what impact will Brexit have on the UK in terms of its relationship with Europe and the wider world?

Lord Sumption

I would hope that the UK Government would be sensible enough to co-ordinate its response, in so far as that was productive, with other European countries and the fact that the UK has left the European Union should not in itself prevent that. I have no problem with the principle of international consultation even for those who believe in Brexit, a category of people which does not include me.

I have one question. Obviously there was an increased police presence on the streets of the United Kingdom. I am directing this question at Lord Sumption because Dr. Buquicchio had to leave. Inevitably there was an increased police presence on the streets in the UK, as there was in Ireland. We have a very unusual feature in our law which enables the Garda Commissioner to bring matters of interest, which are not defined, to the attention of the Minister for Justice and Equality. There was a recent controversy where a minor road traffic violation by a former European Commissioner was brought to the attention of the aforementioned Minister and put into the public domain. Would it be typical across Europe or across the common law world for a minor road traffic violation, such as holding a mobile phone while driving, to be brought to a Minister's attention by the head of a police force and put into the public domain for apparently political ends?

Lord Sumption

In the UK that would not happen. However, there have been a number of cases where the police exploited the publicity opportunities associated with alleged offences by well-known people. They have not gone to any Minister but have simply allowed the press to film arrests, given them advance tip-offs and so on. The problem about that is that if it turns out that the person committed no offence, the police can get into serious trouble. When the police did this with Sir Cliff Richard a few years ago, they ended up paying more than £5 million in damages to him after he sued them. That has induced a rather more responsible level of behaviour from the police. I am not aware of any other country where there is a procedure for the police to automatically inform a Minister. If one has a highly active press, as we do in both the UK and Ireland, one finds that such cases come to public attention anyway.

I am not much of an expert on Irish law and I am certainly not an expert on UK law or its policing and security apparatuses but I know that the UK has MI5, which operates throughout the UK, including Northern Ireland. Would it not report to the Government on all sorts of things that could be beneficial to that Government, even something as minor as a road traffic violation?

Lord Sumption

No, I do not think so.

It would certainly report any evidence it had that indicated security concerns or threats to the relevant Government Minister. If, for example, an MP was found to have close links with a foreign embassy that might come to the attention of a Minister. The Minister would probably be extremely careful about the use he or she made of that information. Clearly, there is a potential problem in light of the expansion of the role of the security services, MI5 and MI6, to cover, for example, international drug trafficking and international terrorism. The traditional barriers have tended to have been broken down and that may lead to a wider range of information about politically prominent people ending up in the hands of Ministers. However, I certainly would not expect such information to extend to road traffic offences or other minor matters.

I thank the witnesses. I greatly appreciate that they stayed with us even though we went considerably over time. I thank them for answering all of our questions and wish them a pleasant afternoon.

I will now suspend the session until 12.45 p.m., when we will hear from the Bar of Ireland, the Law Society and the Covid-19 law and human rights observatory of Trinity College, Dublin.

Sitting suspended at 12.15 p.m. and resumed at 12.45 p.m.