1.  Ireland is a parliamentary constitutional democracy with a written constitution. The Irish Constitution of 1937 (Bunreacht na hÉireann) sets out the framework for the organs of the State.¹ The Irish Parliament, the Houses of the Oireachtas, is bicameral, with an elected Lower House (Dáil Éireann) and an Upper House (Seanad Éireann). Members of Dáil Éireann are elected by a system of proportional representation. Eleven members of the Seanad are nominated by the Taoiseach (Prime Minister), six members are elected by university graduates, and 43 are elected from panels of candidates representing specified vocational interests.

2.  The Constitution provides that the Head of State is the President of Ireland and he appoints the Taoiseach upon the nomination of Dáil Éireann. The majority of the President’s powers are performable only on the advice of the Government. One exception to this is the President’s power under Article 26 of the Constitution to refer the question of the constitutionality of a proposed law that has been passed by the Houses of the Oireachtas to the Supreme Court before the law comes into effect.

3.  The Taoiseach appoints a government. The Taoiseach, the Tánaiste (Deputy Prime Minister), and the Minister for Finance must be Members of Dáil Éireann. The Constitution also allows two Senators to be members of the Government, but this is rare in practice.

4.  By virtue of Article 50 of the Constitution, pre-1922 laws relating to Ireland (eg Acts of the United Kingdom Parliament) and measures adopted by the Irish Free State (1922–1937), which are not inconsistent with the Constitution remain in force. Common law rules which predate 1937 but which are compatible with the Constitution also continue to have legal effect pursuant to Article 50.

5.  The courts are vested by Article 34 of the Constitution with an express jurisdiction to determine the validity of any law having regard to the provisions of the Constitution. Article 28(3)(3) of the Constitution permits the suspension of this jurisdiction to invalidate any emergency laws that are expressed to be for the purpose of securing the public safety and the preservation of the State, or any acts so undertaken. This emergency provision is confined to situation ‘of war or armed rebellion’.

6.  The sources of legal rules in Ireland are the Constitution, measures necessitated by Ireland’s membership of the European Union (EU), Acts of the Oireachtas (primary legislation), secondary or delegated legislation, and the common law as administered by judges of the superior courts.

7.  The Oireachtas may delegate legislative powers to a Minister of Government or a particular authority.² The power to make delegated or secondary legislation must be expressly conferred by primary legislation. Henry VIII clauses (statutory provisions that confer delegated powers to amend primary legislation) are not regarded as constitutionally permissible in Ireland.³

8.  Ireland’s system of local government is provided for in the Local Government Acts 1925 to 2019.⁴ The role of local government is recognised in Article 28A of the Constitution which was inserted in 1999. Local authorities in Ireland are responsible for the provision of public services and facilities such as housing, planning, roads, environmental protection, fire services, and maintaining the electoral register. Councils also play a role in supporting economic development and enterprise at a local level.

9.  Local government is funded from the Local Government Fund which is a central fund comprising local property taxes, motor taxes, and a contribution from the exchequer. Other sources of funding include commercial rates (taxes), charges for local services, and specific state grants.

10.  The Garda Síochána is the national police force. It operates under the Garda Síochána Act 2005.⁵ A Garda Commissioner is appointed by the Government and is responsible for the day-to-day running of the force. The Minister for Justice and Equality is accountable to the Oireachtas for the performance of the Garda Síochána. An independent Policing Authority was established in 2015 to oversee the performance of the Garda Síochána in relation to policing services.

11.  Overall responsibility for the health care system lies with the Government and Department of Health. However, the operation of the system is directed on a day to day basis by a statutory agency known as the Health Services Executive (HSE). This operates under the Health Act 2004,⁶ as amended. The Irish health care system remains predominantly tax funded although there is also a sizeable domestic market in private healthcare.

12.  There has been no change to the constitutional framework as a result of the Covid-19 pandemic.

13.  Ireland is a dualist state. As a member of the European Union (EU), it has amended its Constitution on a number of occasions to provide for the primacy of EU Law in relevant areas.

14.  The European Convention on Human Rights (ECHR) was incorporated by the European Convention on Human Rights Act 2003. The Act requires that the courts interpret and apply national provisions, as far as is possible, in accordance with the precepts contained in the ECHR. If a statutory provision or rule of law is not in accordance with the ECHR a Declaration of Incompatibility may issue. This does not affect the validity of the rule in Irish law with the consequence that claimants in rights-based litigation will generally, where possible, seek relief under the Constitution rather than the ECHR Act. The Constitution retains its primacy over the ECHR under the Act.

15.  References to international standards and responses to Covid-19 appeared in a number of the measures introduced in Ireland. The powers conferred on the Minister for Health under the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020⁷ required the Minister in making regulations to have regard to the World Health Organization’s (WHO) declaration of a pandemic. The Minister was given a statutory discretion under section 10 to have regard in making such regulations to any relevant guidance provided by the WHO, European Centre for Disease Prevention and Control, domestic bodies, and ‘other persons with relevant medical and scientific expertise’. The WHO’s International Health Regulations (IHR) had previously been implemented in Ireland by statutory instrument in 2006.⁸

16.  Article 28(3)(3) of the Constitution provides a formal mechanism for the suspension of certain aspects of the Constitution during a period in respect of which the Houses of the Oireachtas have passed a resolution that a ‘national emergency’ exists. This Article is confined to situations of ‘war or armed conflict’ and so did not apply.

17.  Nonetheless, the pandemic was described as an ‘emergency’ by the Oireachtas when enacting the March 2020 Acts (see Part II.A above). The long title of the Emergency Measures in the Public Interest (Covid-19) Act 2020 also made reference to a ‘public health emergency’,⁹ while both Acts also referred to the ‘immediate’, ‘manifest’, and ‘grave’ risk to human life and public health. The use of the language of ‘emergency’ in a statute does not have any formal legal consequences. There are previous precedents for such usage in Irish law.¹⁰

18.  As of the date of submission of this report, the Oireachtas had enacted 13 separate pieces of primary legislation to address different elements of the State’s response to the Covid-19 pandemic. In brief, these were as follows:

• •  The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020,¹¹ enacted on 20 March 2020, amended existing public health legislation to allow for Covid-19 restrictions, and social welfare legislation to provide for Covid-19 related changes to sick pay and jobseeker payments.

• •  The Emergency Measures in the Public Interest (Covid-19) Act 2020,¹² enacted on 27 March 2020, made amendments to various statutory regimes affected by the pandemic, including a three-month freeze on rents and evictions, the payment of wage subsidies to employees of affected industries, suspension of certain redundancy rules in employment law, and changes to the time limits, appeal mechanisms, and requirements to attend in person which previously applied under the planning, mental health, and civil registration systems.

• •  The Microenterprise Loan Fund (Amendment) Act 2020,¹³ enacted on 10 July 2020, provided for increased borrowing to fund a zero-interest loan scheme for affected businesses.

• •  The Financial Provisions (Covid-19) Act 2020,¹⁴ enacted on 17 July 2020, enabled the state to participate in the EU support scheme established by Article 1 of Council Regulation (EU) 2020/672 of 19 May 2020.¹⁵

• •  The Credit Guarantee (Amendment) Act 2020,¹⁶ enacted on 24 July 2020, provided the basis for a credit guarantee scheme. The scheme covered small and medium-cap businesses and offered an 80% guarantee to participating financial providers against losses on lending to eligible borrowers.

• •  The Residential Tenancies and Valuation Act 2020,¹⁷ enacted on 1 August 2020, extended the rent freeze and replaced the three-month moratorium on evictions with an increase in the notice periods required to terminate a tenancy for non-payment of rent until 10 January 2021.

• •  The Financial Provisions (Covid-19) (No. 2) Act,¹⁸ enacted on 1 August 2020, dealt with various employment and social welfare maters such as an employment wage subsidy scheme, the warehousing of tax liabilities, and the introduction of a tax credit for money spent on holiday accommodation or dining in the State.

• •  The Companies (Miscellaneous Provisions) (Covid-19) Act 2020,¹⁹ enacted on 1 August 2020, amended the existing company law system to allow for the deferral of statutorily-required meetings for a period, or for them to be conducted remotely.

• •  The Social Welfare (Covid-19) (Amendment) Act 2020,²⁰ enacted on 5 August 2020, established a new Covid-19 pandemic unemployment payment to replace the changes to jobseeker eligibility and allowances that had been introduced in March 2020 in the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020.

• •  The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020,²¹ enacted on 6 August 2020, provided a statutory basis for public bodies, including coroners and the courts, to exercise their functions via remote means.

• •  The Criminal Justice (Enforcement Powers) (Covid-19) Act 2020,²² enacted on 11 September 2020, provided An Garda Siochána with powers to enter, inspect, and either issue or apply to court for closure orders in respect of licensed premises for failure to comply with public health directions.

• •  The Residential Tenancies Act 2020,²³ enacted on 24 October 2020, reintroduced and extended the prohibition on removal of tenants from their dwelling during specified emergency periods.

• •  The Health (Amendment) Act 2020,²⁴ enacted on 25 October 2020, introduced additional enforcement powers for An Garda Siochána. This included powers to impose fines and to issue directions to persons organising or attending an event in contravention of the Ministerial regulations regarding public health measures.

• •  The Finance (Miscellaneous Provisions) Act 2020,²⁵ enacted on 16 December 2020, made provision for certain forms of meetings required under banking and other laws to be held by remote means, and for the amendment of fiscal legislation to make provision for the lending of monies to the State by the EU.

• •  The Finance Act 2020,²⁶ enacted on 19 December 2020, gave effect to the Budget announcements of Government but also contained a number of specific Covid-related provisions, including regarding the deferral and warehousing of tax payments.

• •  The Planning and Development and Residential Tenancies Act 2020,²⁷ enacted on 19 December 2020, provided for the disapplication of certain time limits or periods required under planning laws, and for extension of tenant protection against eviction or rent increases during the period from January to April 2021.

19.  The first two Acts identified formed the cornerstone of the state’s initial Covid-19 response. As explained in more detail below (see Part III.B), these were enacted rapidly at specially convened sittings of the Houses of the Oireachtas. The measures were supported by all opposition parties and passed without a formal vote. The President, acting on a request from Government as approved by the Seanad, disapplied the usual five-day waiting period required by the Constitution and signed the measures into law almost immediately. This expedited process is permitted for ‘any Bill’ under Article 25(2) of the Constitution.

20.  The statutory regime for dealing with infectious disease is provided for in the Health Act 1947, as amended.²⁸ This legislation was introduced to address long-standing public health concerns regarding death rates from tuberculosis.

21.  Section 31 of the Health Act 1947 as originally enacted conferred a power on the Minister for Health to make regulations providing for the prevention of the spread of an infectious disease.²⁹ These regulations could cover, inter alia: the notification of diseases; communication of public health information; requiring persons to undergo medical examinations; requiring persons to remain in their homes; the burial of persons who died from infectious diseases; restrictions on the holding of wakes—a funeral custom in Ireland which typically attracts a large gathering; and restrictions on school attendance.

22.  Section 38 of the Health Act 1947 as enacted allowed for the detention and isolation of persons who could not be effectively isolated in their homes.³⁰ Such orders could be made by a chief medical officer who is of the opinion that a person is a probable source of infection with an infectious disease.

23.  The constitutionality of the power to detain and isolate a person suffering from an infectious disease who is a probable source of infection was considered in 2009 by the High Court in S v HSE and ors.³¹ Those proceedings concerned a person with tuberculosis who had refused all treatment and was subject to a detention order which held her in an isolation regime in the treating hospital as a result. The High Court upheld the constitutionality of section 38 of the Health Act 1947 as supporting an important public interest objective. The Court observed that the limited safeguards in the 1947 Act were supplemented by the entitlement of an affected person to make a habeas corpus application at any time to the High Court to enquire into the validity of their detention.

24.  In response to the Covid-19 pandemic, the Oireachtas introduced a number of amendments to the Health Act 1947.

25.  Section 10 of the Health (Preservation and Protection and Other Emergency Measures in The Public Interest) Act 2020 inserted new sections 31A and 31B in to the Health Act 1947.³²

26.  Section 31A conferred a power on the Minister for Health to make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19, including the spread outside the State, or where otherwise necessary, to deal with public health risks arising from the spread of Covid-19. While this was a general enabling power, section 31A specifically provided that the regulations could include travel restrictions, requiring persons to remain in their homes, the prohibition of events which could reasonably be considered to pose a risk of infection to attendees, or requiring the institution of particular safeguards to prevent, limit, or slow the risk of infection. The Minister was required by section 31A(2) to have regard to various criteria including relevant international guidance, the advice of the Chief Medical Officer, the significant risks to human life and public health posed by Covid-19, and the resources of the health service including the number of health care workers and hospital capacity available at a given time. Contravention of the regulations could constitute a criminal offence, enforceable by An Garda Siochána.

27.  Section 31B permitted the Minister to make an ‘affected areas’ order which would apply to any area or region in the State with sustained human transmission or with a high risk of importation of or infection from Covid-19.

28.  Section 11 of the Health (Preservation and Protection and Other Emergency Measures in The Public Interest) Act 2020 inserted a new section 38A into the Health Act 1947.³³ This empowered medical officers to order the detention or isolation of persons who were a potential source of infection, who posed a potential risk to public health and who could not be effectively isolated at home or in other accommodation agreed or arranged with the Health Services Executive. The medical officer who made the order was required to keep it under review and to ensure a medical examination was carried out as soon as possible and no later than within 14 days. A person subject to an order could request their detention be reviewed by a different medical officer.

29.  The March 2020 legislation was debated and voted on by a reduced number of parliamentarians due to public health guidance on social distancing. While queries were raised by some present regarding the scope of the powers conferred by the legislation, both Bills were passed by agreement without a formal vote. The Seanad also passed a resolution for the purposes of Article 25(2) of the Constitution requesting the President to sign the legislation without the usual five-day waiting period. The President signed the measures into law almost immediately.

30.  Section 2(3)(b) of the Health (Preservation and Protection and Other Emergency Measures in The Public Interest) Act 2020 provided for a sunset clause under which these powers would cease to have effect on 9 November 2020 unless extended by a resolution of both Houses of the Oireachtas.³⁴ The Irish Council for Civil Liberties had called for the inclusion of such a clause in March when reports had circulated that emergency legislation was under consideration.³⁵ In October, the powers were extended by resolution of the Houses of the Oireachtas until 9 June 2021.

31.  Fines for breaches of restrictions were introduced from 24 November 2020 pursuant to the Health Act 1947 (Fixed Payment Notice and Dwelling Event Provisions) (COVID-19) Regulations 2020,³⁶ discussed in further detail in Part IV.B below. Provision for these regulations and for the power to issue fixed notice fines was made in the Health (Amendment) Act 2020, which further amended the 1947 Act by inserting a new section 31C and 31D. ³⁷

32.  The constitutionality of both the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and the Emergency Measures in the Public Interest (Covid-19) Act 2020 were the subject of judicial review proceedings in O’Doherty v Minister for Health.³⁸ The High Court refused leave to bring the proceedings on the basis that the applicants had identified ‘no factual basis nor any supportive expert opinion’ to ground their application. At the time of submissions of this report, the decision is under appeal.

33.  The most common form of delegated legislation in Ireland is the statutory instrument (SI). Most SIs take effect by order of the delegated office holder. In some cases, however, statutory instruments are laid before the Oireachtas for approval. This can be done by way of a negative oversight process under which the SIs take effect unless a resolution is passed to annul them; or via a positive oversight process under which the laws cannot take effect until they have been approved by the Oireachtas. The latter is relatively rare.

34.  The response of public authorities to Covid-19 in Ireland has been implemented through a mixture of primary legislation, SIs, and other forms of regulation or norm-setting which might broadly fall into the category of ‘soft law’ measures. The latter category has included Government directions that certain steps should be taken—for example, that public houses should close before any legal requirement to that effect was introduced—or the publication of advice by the Government or a relevant statutory agency about self-isolation, mask wearing, restrictions on international travel, etc. These are discussed in more detail in Part IV below.

35.  While the framework for this response was provided for in primary legislation, the executive has generally been responsible for the design and introduction of specific health measures. From a positivist perspective, this has usually taken the form of SIs issued in the exercise of a delegated statutory power.

36.  The legislation conferring the power on the Minister to introduce such restrictions contained a sunset clause which was subsequently extended by the Oireachtas. In addition, where restrictions have been introduced by way of SI, the SI has typically been stated to take effect for a period of time defined in the SI itself. If restrictions are extended or amended, this has been done through the enactment of a new SI.

37.  As noted, however, these formal legal rules have also been supplemented by official guidance and advice. As discussed elsewhere (see Part II.D below), this has on occasions led to criticism that there was a degree of uncertainty over the legal status of certain advice. However, it is relevant to observe in this regard that the High Court confirmed in Ryanair v An Taoiseach that such advice could be judicially reviewed.

38.  In general, measures introduced under the legislation enacted in 2020 in response to Covid-19 are susceptible to legal challenge. As discussed above (see Part II.B above), the Acts enacted in March as the primary response to the crisis were challenged in O’Doherty v Minister for Health. A number of actions have also been initiated in respect of some of the specific measures introduced under SIs. A total of 94 SIs introduced in 2020 referred to the Covid-19 pandemic in the title of the SI. The majority of these concerned public health measures and were introduced by the Minister for Health under the powers conferred upon him by the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020.³⁹

39.  Forty-four SIs were introduced by the Minister for Health under section 31A of the Health Act 1947, as amended. This section conferred powers on the Minister to make directions aimed at preventing or limiting the spread of Covid-19. By operation of section 5(5) of the 1947 Act, as amended,⁴⁰ each of these regulations were required to be laid before each House of the Oireachtas using the negative oversight process.

40.  These SIs gave a legal basis to several of the public health measures recommended by Government, including: restrictions of movement, internal and external travel, closure of premises, use of face coverings, limitations on gatherings and events, etc (for the specific details see Part IV.A below).

41.  One SI was made under section 31B of the Health Act 1947, as amended. It designated the entire State as an area in which there was known or thought to be sustained transmission of Covid-19.⁴¹

42.  A number of SIs were concerned with the arrival of persons via air or sea. The Health Act 1947 (Section 31A – Temporary Requirements) (Covid-19 Passenger Locator Form) Regulations 2020 were introduced in May 2020 and required persons other than children arriving at a port or airport to complete a Covid-19 Passenger Locator Form.⁴² This form contained details of where the person would be residing for 14 days after arrival. Various categories of persons were exempted from this requirement, including international transport workers, HGV drivers, diplomats, transiting passengers, and persons arriving from Northern Ireland. The 14-day period corresponded to the period for which arrivals from overseas were requested to restrict their movements under public health guidance. Restriction of movements meant staying in accommodation as much as possible and avoiding social situations. Outdoor exercise was permitted provided the person remained two metres from others.

43.  This guidance was not given legal effect. This led to some controversy over the perceived risk of tourists arriving from other countries and failing to restrict their movements, especially during the summer period.⁴³

44.  The Government supplemented the primary and secondary legislation enacted by the Oireachtas by issuing guidance at various points throughout the crisis. Government guidance to the public and public authorities is published on the official Government website.⁴⁴ There has been some uncertainty between what has constituted law and non-legally binding guidance. That has particularly arisen where there have been some differences in the advice or views expressed by official Government channels, individual Ministers, and individual members of the National Public Health Emergency Team (NPHET). There has also, at times, been a degree of public and press uncertainty as to the powers of the Garda Siochana to enforce aspects of the guidance.

45.  The pandemic has featured a number of direct announcements and addresses by the Taoiseach. The first of these direct Covid-19 related announcements comprised a television broadcast by the Taoiseach on the evening of 12 March 2020 in which it was announced that schools, colleges, and childcare facilities would close; and that arrangements were to be made that persons entering Ireland through ports and airports would be fully informed and would self-isolate if they developed symptoms.⁴⁵ It was also advised that gatherings of more than 100 people indoors and mass gatherings of more than 500 people outdoors should be cancelled; while restaurants and cafes were told that they ‘should look at ways that they can implement the public health advice on social distancing’. This advice had no formal legal basis.

46.  This potential gap between official advice and the formal legal position was repeated during the pandemic. For example, on 15 March 2020, the Government ‘called on’ all pubs to close, partly in response to social media and newspaper reports of large gatherings in the Temple Bar area of Dublin. It was reported that some insurers initially told pubs that had closed in response to the ‘call’ that they were not covered for business interruptions as they had closed of their own accord because government advice did not amount to an order to close.⁴⁶

47.  On 27 March 2020, the Taoiseach announced significant restrictions, including the direction that from midnight of that evening, ‘[e]verybody must stay at home in all circumstances’ with limited exceptions including exercise within a two kilometre radius of their home.⁴⁷ It was also announced that non-essential shops and services would be closed. At the same time, the Government website carried an announcement that the list of what constituted essential workers would be ‘published as early as possible tomorrow’ with the advice in the interim being ‘for businesses and services which consider themselves an essential service, is to remain open, pending publication of the list’.⁴⁸ A list was published the following day on the Government website. However, regulations giving legal effect to the restrictions and identifying what constituted essential services were not enacted until 8 April 2020.

48.  The Government has been advised throughout the pandemic by NPHET, which has no law-making powers and its role is advisory only. The Government initially followed its advice in most respects, until a high-profile divergence of views in October 2020. This is discussed below (see Part III.E). Representatives of NPHET have held daily press briefings during the pandemic at which they have answered queries from journalists. There has sometimes been confusion where there has been divergence between official Government policy guidance and the views expressed by NPHET representatives in response to these questions.

49.  The guidance ‘requir[ing] anyone coming into Ireland … to restrict their movements for 14 days’ was the subject of legal challenge in Ryanair v An Taoiseach.⁴⁹ The State successfully defended the proceedings on the basis that the material published was advisory in character. The case is discussed in further detail in Part IV.A.2 below.⁵⁰

50.  Because the Government of the day depends on the confidence of Dáil Eireann, it is almost always comprised of parties or independent persons who together command a working majority.

51.  Article 15(2)(1) of the Constitution states that ‘[t]he sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.’⁵¹

52.  While there have been significant changes to primary legislation by the Oireachtas, much of the detail has been by way of SIs. The delegation of rule-making power to Ministers via SI in Ireland is limited by the constitutional provision above which informs the application of the principles of administrative law.⁵² These include the requirement for parent acts to contain sufficient principles and policies to guide the exercise of the delegated power;⁵³ and a prohibition on Henry VIII clauses (provisions in a primary Act which give the power for secondary legislation to include provisions which amend, repeal, or are inconsistent with the primary legislation).⁵⁴ This means, constitutionally, that it is not permissible for the Oireachtas to confer bare powers on Government. The legislation that confers a rule-making power must impose sufficiently clear limits on the exercise of that power to satisfy the Article 15 principle that the Oireachtas is the ‘sole’ legislative power.

53.  Nonetheless, while the constitution requires a degree of ex ante ‘oversight’, there is also a practice of requiring certain regulations or decrees to be placed before the Oireachtas. This is not required by the Constitution but may, on occasion, be taken into account when assessing the constitutionality of a delegation of power on Article 15 grounds.

54.  Given its primacy, it is also, in principle, open to the Oireachtas to repeal subordinate legislation at any time.

55.  Whether an SI is to be put before the House for approval or not depends on the parent statute. In the case of the public health measures introduced under the Health Act 1947, as amended, section 5(5) requires that these SIs must be laid before the Houses of the Oireachtas and can be annulled by a resolution of either House passed within a period of 21 days thereafter. A motion was moved in September 2020 to annul a regulation introducing stricter restrictions on movement and provision of services.⁵⁵ This was defeated by 125 to 15 with two abstentions.

56.  More generally, the powers conferred on the Minister for Health by Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 were subject to a sunset clause. They were due to expire on 9 November 2020 unless a resolution approving an extension was passed by both Houses. The powers were extended, as discussed in Part II.B.

57.  In the case of the emergency provisions relating to social welfare payments, rents, and so on introduced under the Emergency Measures in the Public Interest (Covid-19) Act 2020, the Act provided for an ‘emergency period’ of three months which could be extended by order of the Government where the ‘making of such order is in the public interest’.⁵⁶ Any such extension must be laid before the Houses, and could be annulled by a resolution of either House within 21 days. A similar system applied to Part 2 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020.⁵⁷

58.  The Oireachtas tests and challenges the Government’s performance chiefly through Leader’s Question-Time debate on coronavirus-related bills brought to the Oireachtas by Government, and through the functioning of the Special Committee on Covid-19 Response.

59.  The Special Committee on Covid-19 Response was established on 6 May 2020 and reported to the Oireachtas on 8 October 2020. It was charged with examining the State’s response to the Covid-19 pandemic as it evolved from early 2020. The Committees’ powers included the power to invite submissions, hold hearings with stakeholders including Ministers, and draft and publish reports.⁵⁸

60.  The Report of the Special Committee highlighted areas requiring ongoing oversight and accountability. Following this Report, these areas fell under the oversight of various sectoral joint committees of the Houses of the Oireachtas.

61.  The Committee noted that the emergency legislation enacted by the Oireachtas

enabled the Government, and the Minister for Health in particular, to make regulations that did not require approval by the Oireachtas. In practice, neither the Oireachtas nor this Committee had an opportunity to consider these regulations. Regulations were not published adequately and in some after they purported to come into effect which breached one of the basic tenets of the rule of law. In addition, …. legislation should be proofed from a human rights and a civil liberties viewpoint. There is also a long tradition of recognising the right to protest.⁵⁹

62.  The Committee recommended that

all Covid-19 related legislation has a short sun-set clause and, where legislation is being renewed, that it require the express approval of the Oireachtas to do so. Every opportunity must be given to the Oireachtas to consider measures prior to their enforcemen.⁶⁰

63.  Ireland held a general election to the Dáil on 8 February 2020. As a result of that, the main political party in Government at the time, Fine Gael, lost a significant number of seats and it was accepted that a new coalition government would have to be formed. This did not happen until 27 June 2020 when the main party from the previous government (Fine Gael) entered into a coalition Government with two other political parties, Fianna Fáil and the Green Party, with the incumbent Taoiseach taking up the position of Tánaiste (Deputy Prime Minister)

64.  Insofar as the business of the Dáil was concerned, there was concern about the legality of remote or hybrid sittings. Article 15(11) of the Constitution states: ‘[a]ll questions in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present and voting other than the chairman or presiding members.’ There was a concern that ‘present’ required physical presence.⁶¹

65.  This interpretation was supported by the fact that Article 15(1)(3) of the Constitution envisages that the Houses of the Oireachtas will sit in or near Dublin, but that the Oireachtas can sit in ‘such other place’ as they ‘may … determine’.

66.  There are no Standing Orders of either House concerning the permissibility of meeting remotely via technological means, nor are there Standing Orders requiring the Dáil or Seanad to meet in Leinster House (the seat of the Oireachtas).

67.  While it was argued by some commentators that remote sittings were permissible,⁶² the legal advice obtained by the Oireachtas expressed the view that remote sittings would not conform with Article 15 of the Constitution.⁶³ As such, the Oireachtas proceeded to sit in physical sessions with adapted arrangements as described below in this Part. Notably, no ordinary committees sat between January and October 2020, when some of the most important legislative and regulatory decisions were made. A Special Committee on COVID-19 Response sat on 29 days between 6 May and 30 September 2020.

68.  The Government announced on 12 March 2020 that NPHET (see Part III.E below) had recommended Ireland enter a ‘Delay Phase’ to include ‘reduction of workplace contacts, and implementation of remote working practices and teleconferencing where possible, and not to travel for meetings’. The Ceann Comhairle (Chair of the Dáil) proposed that there be reduced attendance at Leinster House and this proposal was discussed by the Business Committee of the Dáil. The Business Committee is a standing committee of the Dáil and all political parties and technical groups are represented on it. According to Standing Order 31(1),⁶⁴ the Business Committee at its weekly meeting ‘shall consider the arrangements for the House and for the taking of its business in the following week.’

69.  Standing Order 32(1) provides that ‘[a]s part of its deliberations, the Business Committee may consider proposals in relation to … (h) any other matter which it considers necessary or expedient for the conduct of business in the House’.⁶⁵

70.  The Dáil debated the proposal from the Business Committee on 19 March 2020 which included arrangements for the taking of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020.⁶⁶

71.  Initially, the Dáil sat in reduced numbers to a maximum of 30% attendance, with proportionate representation from each political party. Later, some Teachtaí Dála (TDs) (members of Dáil Éireann) opted not to attend Dáil statements on health, and instead provided prepared written statements to be read into the Dáil record.

72.  The Dáil continued to sit with reduced numbers in Leinster House with Divisions of the House on motions take place in the Dáil Chamber in Leinster House with this reduced attendance. For divisions of the House on legislation, votes are held in a large venue (the Convention Centre) where all Members can attend in a safe, physically distanced manner

73.  On 28 January 2021, the Business Committee decided that the Dáil should sit in the Convention Centre and that the Seanad would alternate its sittings in Leinster House with those of Oireachtas Committees. The latter would be permitted to meet in Leinster House with up to eight such Committees permitted to meet at any one time.

74.  The Ceann Comhairle’s original proposal in March 2020 that there be reduced attendance formed one aspect of the legal challenge in O’Doherty v Minister for Health.⁶⁷ The applicants argued, in partial reliance on the decision of the UK Supreme Court in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland,⁶⁸ that the Court had a jurisdiction to review such matters. The High Court rejected this, concluding that the matters in question were non-justiciable under Article 15 of the Constitution.

75.  A further issue which arose was the non-sitting of the Seanad for an extended period during the pandemic. This situation arose because of the stalemate over the formation of a new Government following the February 2020 election. Under the Constitution, the Seanad is composed of 49 elected members and 11 nominees of the Taoiseach. However, no nominations were made until the formation of the new Government. The legal advice provided to the Oireachtas was that the Seanad could not lawfully sit in the absence of the 11 nominees. This had the significant practical effect that the Houses of the Oireachtas were unable to pass primary legislation from 29 March until 27 June 2020.⁶⁹

76.  A number of the elected members of the Seanad initiated proceedings in which they contended that the Seanad could lawfully sit prior to the nominations being made. The plaintiffs argued that the constitutional drafters could not have envisaged that the Oireachtas would be prevented from enacting legislation in an emergency situation such as the Covid-19 pandemic. The Divisional High Court held that the text of the Constitution clearly and unambiguously required the Seanad to be comprised of its full complement of 60 members; and that the system of governance established by the People in the Constitution envisaged a Seanad including 11 nominees of the Taoiseach.⁷⁰ This was described by the Court at paragraph 132 of the judgment as ‘an integral element of the constitutional architecture’. The Court observed in this regard that the Covid-19 situation could not influence the interpretation of the Constitution’s clear and unambiguous text.

77.  The Seanad has sat in the Dáil chamber at times when it is not in use by the Dáil. The smaller numbers in the Seanad mean that its sittings can be held there while complying with advice on social distancing.

78.  In more general terms, there has been some criticism about the level of parliamentary scrutiny of measures taken during the pandemic.⁷¹ The issue was addressed by the Special Committee on Responses to Covid 19 in its recommendations.⁷² Opposition parties were generally supportive of the necessity for restrictions but increasingly called for more information or transparency about the data or rationale for proposed measures. Particular criticism of the response came from individual parliamentarians, notably Michael McNamara TD, the Chair of the Special Committee, whose concerns included a perceived unwillingness of political and media figures to scrutinise proposals:

We are in danger of moving into a totalitarian zone. There’s an orthodoxy that needs to be questioned. Nobody dared question the Bishop in 1950s Ireland, either in Leinster House or anywhere in official Ireland, and the people were oppressed and increasingly angry. The medics seem to have stepped into that role. Anyone who dares question them is shot down as a dangerous heretic.⁷³

79.  The Courts Service of Ireland is the body responsible for the scheduling of court proceedings and management of the court facilities in the State. The procedures for courts are set out in the various court rules issued by the Rules Committee. These are supplemented by practice directions from the judiciary.

80.  Following the announcement of the Delay Phase by the Government on 12 March 2020, the Courts Service issued a statement indicating that the courts would continue to operate with mitigating measures in place.⁷⁴ Court offices remained open and courts continued to hear urgent matters.

81.  On 31 March 2020, the Chief Justice of the Supreme Court, together with the Presidents of the other courts issued a further statement that all courts would deal only with urgent cases or concluding those at hearing.⁷⁵ It was agreed that each Court President would work in conjunction with relevant Courts Service staff to determine the urgent cases which would need to continue to be heard and to put in place practical measures to ensure that those cases could be conducted safely. Transparent screens were placed in front of the judge and registrar in many courtrooms while limits were also placed on the number of persons who could be present in the courtroom.

82.  The length of hearings was briefly limited to two hours following media coverage of advice given to members of the Oireachtas that persons should not be present in the same room for more than two hours.⁷⁶ This was reversed shortly thereafter when further advice was obtained.⁷⁷

83.  Additional Practice Directions and Guidance were issued by the judiciary at various points as the pandemic progressed and the public health advice of the Government evolved. On 9 October 2020, the Chief Justice of the Supreme Court, together with the Presidents of each of the other court levels, issued a statement by way of guidance to the effect that all persons attending court should wear a mask and remain two metres apart.

84.  The impact of the pandemic on court hearings has varied depending on the type of proceedings. Some practice areas, such as the wardship jurisdiction of the High Court, have continued to be heard physically throughout the pandemic. Others, such as jury trials or personal injury actions, were effectively suspended in some courts for periods of time.

85.  The President of the High Court issued a statement on 26 June 2020 urging parties to engage in an effort to settle personal injury matters.⁷⁸ She pointed out that 97% of personal injury claims settle, and 89% of these are settled on the day of the hearing. She requested that ‘parties do what they would have done over the past three months and over the next five weeks, had the court been able to list these claims for hearing in the normal way’.

86.  Online proceedings have become a regular feature of the business of the courts since April 2020 and this has been particularly prevalent in the Superior Courts. During the annual Easter court vacation, the Courts Service ran mock trials with the assistance of counsel and solicitors to test the technology and procedures. These were then rolled out across a number of different courts with the first case being heard remotely by the Supreme Court on 20 April 2020.⁷⁹ Almost all court business in the Court of Appeal was conducted remotely from April 2020 onwards,⁸⁰ and 125 cases appeals were heard between that date and 10 July 2020.⁸¹

87.  The Irish courts have used ‘PEXIP’ for remote court hearings. This is a facility which is similar to Zoom, Microsoft Teams, Cisco Webex, or other platforms. It is possible to ‘dial in’ using a mobile phone (or landline). It is also possible to physically attend a court room and use audio visual equipment there to participate in online hearings. This facility has been used by litigants in person and counsel as required.

88.  The Court Registrar is physically present in a courtroom during remote hearings. This allows the remote hearing to be recorded using the Digital Audio Recording (DAR) system that is a standard requirement of superior court hearings in Ireland. The location of the courtroom where the registrar will be sitting is identified in the Legal Diary which is published by the Courts Service the day before each sitting.

89.  In addition, the general approach of the Courts Service staff and judiciary has been to reassure courts users that there is an appreciation of the challenges that some court users may face arising from remote hearings. This has been communicated formally⁸² and informally at hearings. Guidance has been available to court users about the new measures and the communication of these has been clear.⁸³ It has also become standard practice for judges to formally remind all participants at the commencement of remote hearings of the prohibition on the recording of the proceedings.

90.  The courts system has also permitted a number of matters to be dealt with by email rather than appearance.⁸⁴ This has been encouraged for non-urgent matters.

91.  Article 34(1) of the Irish Constitution requires that justice be administered in public. A number of measures have been taken to address this requirement in the context of remote hearings. Court proceedings are recorded digitally. The Courts Service have also put in place mechanisms for bona fide members of the press to have access to hearings. It is also possible for members of the public to attend court and listen to proceedings there, subject to capacity in accordance with the public health guidance.⁸⁵

92.  There have been a number of legal challenges brought to the measures taken by the State to ameliorate the pandemic. In O’Doherty v Minister for Health,⁸⁶ the applicants took judicial review proceedings in which they sought to challenge the constitutionality of both the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and the Emergency Measures in the Public Interest (Covid-19) Act 2020. The High Court refused leave to bring the proceedings in this case on the basis that the applicants had identified ‘no factual basis nor any supportive expert opinion’ to ground their application. The decision is presently under appeal (see Part II.E above for further High Court litigation).

93.  In addition to the Ryanair v An Taoiseach case discussed in Part III.E above, three other sets of proceedings have been initiated—one challenging the restrictions placed on hospitality venues,⁸⁷ one challenging the restrictions placed on places of religious worship,⁸⁸ and one concerning the alleged restrictions on game shooting.⁸⁹ At the time of writing, these have not been determined.

94.  There was a general election in February 2020 as discussed in Part III.B above.

95.  An indirect election for Seanad Éireann took place after the 2020 Irish general election, with postal ballots due on 30 and 31 March 2020. Seanad elections usually take place by postal ballot and this was not a departure from the usual electoral procedure. The Seanad was unable to sit formally until the appointment by the incoming Taoiseach of his 11 nominees on 27 June 2020.

96.  The body charged with advising the Government on the public health issues arising from the pandemic is the National Public Health Emergency Team (NPHET). NPHET was established on 27 January 2020 in the Department of Health and is chaired by the Chief Medical Officer. Membership is comprised of representatives from across the health and social care service including the Department of Health, Health Service Executive, Health Protection Surveillance Centre (HPSC), Health Information and Quality Authority (HIQA), and Health Products Regulatory Authority. There are a small number of members outside of these entities on NPHET itself. For example, a Professor of Medicine from Trinity College Dublin who is a consultant in infectious diseases at St. James’s Hospital, the Director of the National Virus Reference Laboratory in University College Dublin, and the President of the Irish College of General Practitioners are also members.

97.  The Opposition called for the publication of the governance structures of NPHET and these were made available on 28 April 2020.⁹⁰ This indicated that NPHET had also established a range of sub-groups, many of which involved external experts from the medical profession and relevant academic disciplines. The main sub-group appears to be the Expert Advisory Group (EAG), the mandate for which is stated to be as ‘an important source of independent, ongoing expert advice and support in public health emergencies’. The EAG also has its own research sub-group comprising representatives from the Department of Health, Health Service Executive, Health Research Board, Science Foundation Ireland, and academics.

98.  Ten other sub-groups were established, namely the Acute Hospital Preparedness Subgroup; the Behavioural Change Subgroup; the Guidance and Evidence Synthesis Subgroup; the Irish Epidemiological Modelling Advisory Group; the Health Legislation Subgroup; the Medicines and Medical Devices Criticality Assessment Subgroups; the Pandemic Ethics Advisory Group; the Vulnerable Persons Subgroup; the Health Sector Workforce Subgroup; and the Diagnostic Testing Approaches Subgroup.⁹¹

99.  A further source of expert advice has been the Covid-19 Evidence Synthesis Team established by the Health Information and Quality Authority. This team has prepared reports that synthesise existing evidence and knowledge to inform national strategic decision-making. These evidence syntheses are performed at the request of NPHET and of related groups tasked with the national Covid-19 response. This team’s reports have generally been concerned with issues arising from areas where scientific knowledge is emerging or evolving, such as the merits of mask usage to reduce transmission; the duration of restriction of movement for individuals who may have been exposed to Covid-19; the potential impact of differing testing scenarios; the duration of immunity and reinfection; and activities associated with higher risks of transmission.⁹²

100.  The minutes of NPHET meetings are published, as are the letters from NPHET to the Minister for Health. Decisions made by NPHET are announced through press releases and these have been issued regularly throughout the pandemic, with the Chief Medical Officer—and at times the Deputy Chief Medical Officer—directly addressing the public by way of daily press briefings.

101.  NPHET’s Terms of Reference include overseeing and providing direction,⁹³ directing the collection and analysis of required data, directing communications at the local, regional, and national level, and evaluating the readiness of Ireland’s health service to manage Covid-19.⁹⁴ NPHET oversees and provides national direction, guidance, support, and expert advice on the development and implementation of a strategy to contain Covid-19 in Ireland.

102.  The Government is not bound to follow the advice of NPHET and as the pandemic has progressed, there have been instances where the Government has expressly departed from the published NPHET advice.

103.  On 4 October 2020, NPHET recommended that the State be put into ‘Level 5’ for four weeks.⁹⁵ This is the highest level of restrictions (see Part IV.A below). The Government initially refused to do this and the Tánaiste was critical that this advice came into the public domain prior to the Government being informed or making a decision.⁹⁶ The Government decided on 8 October 2020 to place the State in a lower level of restrictions (Level 3). There was significant controversy around these developments.⁹⁷ The Government subsequently placed the State in Level 5 from 21 October–1 December 2020.⁹⁸

104.  A further departure from NPHET’s advice took place in respect of the reopening of the hospitality industry in December 2020. NPHET recommended that on exiting Level 5, the Government should restrict restaurants and bars serving food to doing so on a ‘take away’ basis. This was stated to be with a view to ensuring that household visits could be permitted over the Christmas period.⁹⁹ The Government rejected this advice and permitted dining in restaurants and bars from 4 December 2020.¹⁰⁰

105.  There have also been differences between NPHET advice on travel and quarantine restrictions and the measures adopted by the Government. In May 2020, NPHET recommended a 14-day mandatory quarantine at a designated facility for international arrivals into Ireland.¹⁰¹ This was not implemented. NPHET representatives have also stated that travel into Ireland for Christmas was not safe and should be avoided while the Government maintained its approach of advising persons arriving by air or sea to self-isolate for recommended periods.¹⁰²

106.  There has been no indication of any restrictions on press reporting by the Government during the pandemic.

107.  Freedom of information is governed by the Freedom of Information Act 2014.¹⁰³ The Information Commissioner is the office holder responsible for freedom of information in Ireland.¹⁰⁴ There has been no suspension of the rights to freedom of information and the Information Commission has issued guidance noting the time limits for requests still apply, asking that arrangements be put in place to ensure the greatest possible compliance and recommending that bodies consider proactively publishing material that is likely to be in high demand or particularly relevant to the crisis.

108.  The Ombudsman investigates and reports on maladministration by public bodies and this includes complaints in respect of the Health Service Executive, public hospitals, and nursing homes.¹⁰⁵ There has been no suspension of investigations in health care settings but the Ombudsman has asked that citizens consider whether they really wish to make a complaint of that nature during the crisis and has also indicated the likely delay that might attend the investigation of such complaints.¹⁰⁶

109.  The Ombudsman has not reported on the investigation of any such complaints since March 2020. There was a completed investigation into the refusal of the Pandemic Unemployment Payment to an individual who was located in Poland when the pandemic interrupted travel. This was resolved in favour of the applicant.¹⁰⁷

110.  The public health measures taken since the start of the pandemic have included both guidance and formal legal measures. In some instances, there has been uncertainty over the status of some of these measures and whether they are mandatory or advisory in nature. The police have applied a graduated approach to enforcement which seeks to engage and persuade citizens to comply with the measures in place. This has been described by the Gardaí as a ‘4 Es’ approach—‘Engage, Explain, Encourage and Enforce’.¹⁰⁸

111.  The public signalling of restrictions commenced when the government announced on 9 March 2020 that the St. Patrick’s Day festivities which were scheduled to start on 17 March were cancelled due to the public health advice. The Taoiseach addressed the nation on 12 March 2020,¹⁰⁹ stating that schools and childcare facilities were to be closed temporarily and encouraging home working. On 24 March 2020, citizens were asked to stay at home from midnight on 28 March until 12 April 2020.¹¹⁰ These restrictions were placed on a legal footing on 8 April 2020 by way of a statutory instrument.¹¹¹

112.  This was extended so that the restrictions lasted from March–May 2020. They were then eased between 18 May and August 2020 following the publication by the government of a ‘Roadmap for Reopening Society and Business’ (‘Roadmap’) on 1 May 2020.¹¹² The Roadmap set out five phases for the gradual reopening of society and economic activity between May and August 2020: Phase 1 (18 May), Phase 2 (8 June), Phase 3 (29 June), Phase 4 (20 July), and Phase 5 (10 August) with gradual easing of restrictions predicted for each phase. The phases did not progress according to this original time frame and it was announced on 15 July 2020 that Phase 3 was to be extended for three weeks.¹¹³ On 4 August 2020, the start of Phase 4 was delayed for a further three weeks.¹¹⁴ Additional measures were announced on 18 August 2020.¹¹⁵

113.  The Roadmap was replaced by a new framework on 15 September 2020, ‘Resilience and Recovery 2020-2021: Plan for Living with COVID-19’ (‘Plan’).¹¹⁶ The Plan comprised a risk management strategy for the following 6–9 months and was stated to allow individuals, families, businesses, and services better understand, anticipate, and prepare for the measures government might introduce to stop escalation of transmission of the disease. As this suggests, the measures introduced at various stages did not always correspond precisely to those originally stated in the Plan.

114.  The Plan sets out five levels of restrictions. Level 1 is the lowest level of restrictions with 10 visitors from up to three households permitted to visit a private home or garden. Gatherings outside one’s home or garden are permitted to have 50 people. One hundred or 200 attendees are permitted at indoor sports fixtures depending on the venue and up to 500 at outdoor events provided the venue has capacity for 5,000. Weddings may have 100 guests. There are no restrictions on domestic travel at this level and bars, cafes, and restaurants can remain open with protective measures. So called ‘wet pubs’ that do not serve food are also open at this level. Casinos, nightclubs, and discos remain closed at Level 1.

115.  At Level 2, visitors to one’s home or garden are limited to six people from up to three households. Gatherings elsewhere are limited to six people indoors or 15 outdoors. Fifty people may attend a wedding. Indoor sports fixtures may have 50 attending, or 100 if the venue is large enough. For other indoor events, the limit is 50 people rising to 100 if the venue is large enough. Bars, cafes, and restaurants are open at this level but only 6 people from up to 3 households may sit together and the same restrictions apply to wet pubs. Again, there are no restrictions on domestic travel.

116.  Level 3 allows garden/home visits from one other household only and all social or family gatherings are banned. There can be no indoor gatherings or sports fixtures with the exception of elite sports. Twenty-five people may attend weddings at this Level. Bars, cafes, and restaurants are open for outdoor dining for 15 patrons only and takeaway or delivery. Wet pubs are open with additional restrictions. Travel is limited to one’s county or region save for work or education or other essential purposes.

117.  At Level 4, no home/garden visits are permitted and the restrictions on sports fixtures, travel, other gatherings, and dining remain as at Level 3. At this level, wet pubs may only open for outdoor service limited to a maximum of 15 customers. Only six people may attend a wedding at Level 4.

118.  Level 5 is the highest level of restrictions under the Plan and, at this Level, the additional restrictions are that all sports fixtures are cancelled, bars, cafes, restaurants, and wet pubs may offer only take away or delivery, and travel is restricted to five kilometres from one’s residence for exercise—one may also travel for essential purposes.

119.  Restrictions were reimposed in September and October 2020. Some of these were eased in December 2020 in three stages—the first being the reopening of retail and services such as hairdressers and gyms (with restrictions) from 1 December 2020, followed by the reopening of hospitality on 4 December and, finally, the easing of restrictions on inter-county movement and household visits on 18 December 2020, (again, with some restrictions maintained). These measures were stated to be in place until 6 January 2021 with a review to take place closer to that date.¹¹⁷ Due to a significant increase in cases, restrictions were reintroduced earlier from 24 December 2020 with the closure of restaurants, hairdressers, and gastro pubs, followed by a ban on inter-county travel after 26 December. Household visits were reduced to one other household from 27 December.¹¹⁸

120.  The Taoiseach addressed the nation on 12 March 2020, stating that schools and childcare facilities were to be closed temporarily and encouraging home working.¹¹⁹ On 24 March 2020, he announced that from 27 March until 12 April 2020, persons other than those who were essential workers should stay at home in all circumstances except for shopping, to get medicines, to care for relatives, and brief exercise.¹²⁰ Exercise was permitted within two kilometres of one’s home. Those measures were extended until 5 May.¹²¹

121.  The government published a Roadmap for Reopening Society and Business on 1 May 2020,¹²² and it was announced that between then and 15 May, the distance within which people could exercise was five kilometres from their home. On 8 June, people were allowed to travel within their own county or 20km from their home or the further of the two.¹²³ On 29 June, restrictions on domestic movement were lifted.

122.  On 15 September 2020, when the Resilience and Recovery 2020-2021: Plan for Living with COVID-19 was announced, the country was placed into Level 2. However, further restrictions at Levels 3 and 4 were implemented in specific counties between 15 September and 21 October. From midnight on 21 October 2020, the State entered into Level 5 with restrictions on movement other than for essential purposes, including exercise within five kilometres from one’s home. These measures, which were to last until 1 December 2020, included a penalty for breaking this rule.

123.  From 1 December 2020, all movement restrictions within counties were lifted and it was announced that from 18 December 2020 to 6 January 2021, restrictions on inter-county travel would be lifted. Due to a rise in cases, from midnight on 30 December 2020, Ireland was placed in Level 5 with the restriction of travelling no more than five kilometres from one’s home for exercise and a general statement that people should stay at home.

124.  As noted in Part IV.A.1 above, there were measures restricting movement from one’s home without a reasonable excuse. Specified reasons for travel were prescribed at different points as work, provision of essential services, medical reasons, farming, education, accessing childcare, attendance at a funeral, fulfilling a legal obligation, or accessing essential retail services. The restrictions ranged from restricting persons to a 2km, 5km, or 20km radius from their home to a prohibition on the crossing of county boundaries.

125.  While the various distance-related restrictions were for the purposes of exercise only, this was understood by many people as a general requirement to remain within these areas for all purposes.

126.  On 8 June 2020, people were allowed travel within their own county or 20km from their home or the further of the two. On 29 June, restrictions on domestic movement were lifted and travel throughout the country was permitted.

127.  On 7 August 2020, the Taoiseach announced a series of measures for counties Kildare, Laois, and Offaly following significant increases in Covid-19 cases in those three counties.¹²⁴ The measures came into effect from midnight that day and remained in place for two weeks. The measures included a prohibition on residents of the three counties travelling outside their county.

128.  National restrictions on movement were reimposed on 15 September 2020, at which stage the country was placed in Level 2 of the Plan. Dublin was subject to additional restrictions under which it was recommended that people not leave the county. Level 3 was introduced for Dublin from midnight 19 September 2020, for Donegal from midnight 25 September, and for all other counties from midnight 6 October 2020. Cavan, Monaghan, and Donegal moved to Level 4 from midnight 15 October 2020. Levels 3 and 4 both involved restrictions on crossing county boundaries.

129.  On 22 October 2020, the State entered into Level 5 with restrictions on exercise other than within five kilometres of one’s home. These measures, which were to last until 1 December, included a penalty for breaking this rule. From 1 December, all movement restrictions within counties were lifted and it was announced that from 18 December to 6 January, restrictions on inter-county travel would be lifted.

130.  In the early stages of the pandemic, there was controversy over the arrival of flights from Northern Italy to Dublin on the weekend of 7 March 2020. An international rugby match had been scheduled between Ireland and Italy for that weekend. The match was cancelled earlier that week but there were calls for the government to also take steps to prevent the flights from going ahead. The Minister for Health rejected this, stating that ‘[w]e don’t have a travel ban in the European Union, there isn’t a global travel ban in place and it is a fact of life that people will continue to move from one member state to another’.¹²⁵

131.  On 10 March 2020, the Tánaiste and Minister for Foreign Affairs advised against travel to Italy,¹²⁶ and on 13 March 2020, the Tánaiste advised citizens to exercise caution before travelling to EU Member States.¹²⁷ On 14 March 2020, non-essential travel to the Czech Republic, Cyprus, Denmark, Malta, Poland, and Slovakia was included within this advice. On 15 March, citizens in Spain were urged to travel home.¹²⁸ On 20 March, a general travel advisory was issued urging citizens abroad who wished to return to Ireland to do so promptly.¹²⁹ On 27 March, the Tánaiste advised against all non-essential overseas travel.¹³⁰

132.  The Government published a ‘Green List’ on 21 July 2020 of countries to which citizens could travel without any requirement to restrict their movements on returning to Ireland.¹³¹ The list included EU/European Economic Area (EEA) countries with a 14-day cumulative disease incidence rate of 25 or less per 100,000, based on data provided by the European Centre for Disease Prevention and Control (ECDPC). Fifteen countries were on the ‘green’ list published in July: Malta, Finland, Norway, Italy, Hungary, Estonia, Latvia, Lithuania, Cyprus, Slovakia, Greece, Greenland, Gibraltar, Monaco, and San Marino. The NPHET advice remained to avoid overseas travel including to these countries. The list was to be reviewed every fortnight on the basis of the same data. The list was amended periodically. For example, the list was amended on 17 September with the changes to take effect from midnight on 21 September. The revised list comprised Cyprus, Finland, Germany, Iceland, Latvia, Lithuania, and Poland.¹³²

133.  The status of the guidance was the subject of judicial comment in Ryanair v An Taoiseach.¹³³ These proceedings involve a challenge to the legality of the guidance issued by Government ‘requir[ing] anyone coming into Ireland … to restrict their movements for 14 days’. The State defended the proceedings on the basis that the material published was advisory in character. The High Court expressed the view, in partial reliance on the decision of the New Zealand High Court in Borrowdale v Director-General for Health,¹³⁴ that guidance could be amendable to judicial review if it amounted to a clear disregard of constitutional norms such as, for example, representing unequivocally that there was a legal obligation on pain of penalty to comply with a particular measure. The High Court held that the information published by the government represented an accurate portrayal of the legal status of the travel advice. The High Court also rejected the argument that the conferral by the Oireachtas of a power to disseminate information on infectious diseases on the Minister by way of statutory instrument did not preclude the Government from providing information or advice in other forms in the exercise of the executive power under the Constitution. It also held that the publication of the travel advice was not inconsistent with EU law or the right to freedom of movement guaranteed thereunder.

134.  On 8 October 2020, the government announced that from 12 October the increase in the 14-day rate across Europe meant that there were no countries on the green list.¹³⁵

135.  The green list system was abandoned and replaced with the EU Recommendation on a coordinated approach to travel restrictions in the context of COVID-19 which was agreed by the Member States on 13 October 2020.¹³⁶ This ‘traffic lights’ approach provided for regions across the EU and EEA to be categorised as green, orange, red, or grey, on the basis of the risk levels associated with Covid-19.¹³⁷ A combined indicator map is published each week by the ECDPC, based on agreed criteria, including the 14-day cumulative incidence rate, testing rate, and testing positivity rates.¹³⁸

136.  All passengers arriving into Ireland from overseas were obliged to complete a Covid-19 Passenger Locator Form before entry.¹³⁹ In line with the EU Recommendation, there were no entry restrictions on passengers travelling from green regions. Passengers entering Ireland from red, orange, and grey regions were requested to restrict their movements for 14 days. This request did not apply to certain categories of travellers: international transport workers, including workers in aviation, maritime, and road haulage sector, travellers with an essential function or need as set out in paragraph 19 of the EU Recommendation,¹⁴⁰ passengers arriving from an ‘orange’ region, who have received a negative/not detected’ result from a Covid-19 Polymerase Chain Reaction (PCR) test taken within three days of departure to Ireland.¹⁴¹

137.  Travellers from countries outside the EU/EEA were treated under this system as travellers from red/grey regions, including in relation to certain exempted categories.

138.  The Department of Foreign Affairs continued to advise against non-essential travel overseas, other than to countries that are part of the EU ‘traffic lights’ approach, where the advice is to exercise a high degree of caution—this includes Great Britain but not Northern Ireland. Pre-departure Covid-19 testing was made available at airports.¹⁴²

139.  When Ireland re-entered Level 5 on 31 December 2020, internal travel restriction, of no more than five kilometres from one’s home for exercise, were reimposed.

140.  There were concerns in early March 2020 about the potential transmission risk of large numbers of visitors arriving into Ireland for St. Patrick’s Day. The Chief Medical Officer stated on 4 March that he saw no reason why the festival should not go ahead as planned. However, a number of local parades were unilaterally cancelled by their organisers in the days after this. Ultimately, an announcement was made on 9 March that the festival would be cancelled.

141.  On 24 March 2020, citizens were asked to stay at home, save for essential reasons, from midnight 28 March until 12 April 2020. This was extended twice and not lifted until 18 May. All sporting events were cancelled at this time also. Funerals and weddings were limited to 25 attendees,¹⁴³ later increased to 50.¹⁴⁴

142.  People aged over 70 and other vulnerable people were asked to ‘cocoon’ and avoid all meetings with others.¹⁴⁵ It was suggested that they avoid retail and rely on others for groceries, etc. Community groups, the Gardaí, and local Gaelic Athletic Association (GAA) sports clubs provided assistance to cocooners. Many supermarkets allocated dedicated times for cocooners to shop. ¹⁴⁶

143.  There were various restrictions imposed on the numbers permitted to attend certain forms of event. The measures ranged from a limit of 50 indoors and 100–200 outdoors,¹⁴⁷ to more restrictive measures which prohibited or limited indoor gatherings to five other persons¹⁴⁸ and limited outdoor events to 15.¹⁴⁹ Different levels applied to a small number of specific forms of gathering, notably weddings and funerals.

144.  On 18 May 2020, the country entered into ‘Phase 1’ of the Roadmap and it was permitted to meet friends or family outside, within five kilometres of your home, in groups of no more than four.¹⁵⁰ Older people and those who were ‘cocooning’ were to continue to stay at home, except for brief outdoor exercise within five kilometres of their home.¹⁵¹

145.  From 8 June 2020, these measures were relaxed as the country moved to Phase 2, with some elements of Phase 3 brought forward.¹⁵² It was permitted to meet up to six people from outside one’s own household both indoors and outdoors for social gatherings. Persons aged over 70 or medically vulnerable were advised to continue to stay home as much as possible. While they could welcome small numbers of people to their own home, they were advised to maintain social distancing.

146.  From 15 July 2020, social visits to people’s homes were limited to a maximum of 10 people from no more than four different households and restrictions of 50 people at indoor gatherings and 200 at outdoor gatherings were extended until 10 August. This was following a decision to delay entering into Phase 4 of the Roadmap due to rising case numbers.¹⁵³

147.  On 7 August 2020, the Taoiseach announced the first localised restrictions in Ireland during the pandemic.¹⁵⁴ Residents of counties Kildare, Laois, and Offaly were not permitted to leave their own county other than for limited reasons. Restaurants, bars, cinemas, gyms, and other indoor recreational or cultural facilities were also closed in these areas. Indoor gatherings were restricted to a maximum of six people from no more than three households in total, with outdoor groups limited to 15 people. Places of worship could remain open for private prayer but it was advised that religious services should be delivered online or through remote means. A maximum of 25 people were permitted to attend funerals. The measures were lifted on 21 August for Laois and Offaly but remained in place for Kildare for a further two weeks.¹⁵⁵

148.  On 18 August 2020, the government announced new restrictions on gatherings limiting all outdoor events to 15 people. Indoor events were limited to six people with exceptions for religious services, weddings, and businesses such as shops and restaurants.¹⁵⁶ Religious services and weddings were permitted to have 50 people.

149.  Shortly after this announcement, a significant public controversy arose when it was reported that more than 80 persons had attended a dinner on 20 August 2020, following a golf event organised by the Oireachtas Golf Society.¹⁵⁷ The event led to the resignation of a number of office-holders in attendance, including the Minister for Agriculture Dara Calleary TD, the Leas-Cathaoirleach (Deputy Chair) of the Seanad Senator Jerry Buttimer, and EU Commissioner for Trade Phil Hogan.¹⁵⁸

150.  The event had also been attended by a recently appointed Supreme Court judge. Mr. Justice Seamus Woulfe had been the Attorney General to the previous Government. He was appointed directly to the Supreme Court by the incoming Government. As the Judicial Council Act 2019 had not yet been commenced, an ad hoc inquiry was announced by the Chief Justice into the attendance of the judge at the event.¹⁵⁹ The report by former Chief Justice Denham concluded that ‘Mr. Justice Woulfe did nothing involving impropriety such as would justify calls for his resignation from office. Such a step would be unjust and disproportionate’ and stated that it would be open to the Chief Justice to deal with the matter by way of informal resolution.¹⁶⁰ However, further controversy arose when a transcript of the reviewer’s interview with Mr. Justice Woulfe was published.¹⁶¹ Media reports suggested that a number of scheduled meetings between the Chief Justice and Mr. Justice Woulfe were cancelled.

151.  Subsequently, the Chief Justice took the unusual step of publishing some of the correspondence exchanged with Mr. Justice Woulfe during this process. Notably, the correspondence concluded with the expression by the Chief Justice of his view that the judge ought to resign; and the expression by Mr. Justice Woulfe of the reasons why he believed that would not be appropriate.¹⁶²

152.  The measures imposed on 18 August continued until 18 September 2020, at which stage the Government’s Plan was in place. At that date, Dublin was placed in Level 3 and all outdoor events were limited to 15 people. All indoor events were limited to six people, except for religious services, weddings, and businesses, such as shops and restaurants. The remainder of the country was placed into Level 2.¹⁶³

153.  Donegal was placed in Level 3 on 25 September 2020. All other remaining counties were placed into Level 3 from 6 October 2020.¹⁶⁴ Donegal, Cavan, and Monaghan, which are located along the border with Northern Ireland, were placed into Level 4 on 18 October 2020. This came a few days after the Northern Ireland executive had introduced a ‘circuit-breaker’ set of restrictions on 14 October 2020 because of concerns over levels of infection in Northern Ireland.

154.  On 21 October 2020, the entire country was placed on Level 5 for a six-week period, and people were required to stay at home.¹⁶⁵ This precluded any visits to other people’s homes or gardens, except in cases where an extended household was appropriate to support defined groups of persons judged to be at risk of social isolation. It was permitted to meet one other household in an outdoor setting, provided that was not a home or garden.

155.  In November 2020, fixed penalties were introduced for a range of breaches of the regulations. These included a fine of €100 for leaving one’s place of residence without reasonable excuse and €150 for attending a social gathering in a private dwelling with a €500 fine for anyone organising same.¹⁶⁶

156.  These measures were eased from 18 December to 6 January 2021 when Level 3 was reinstituted. During that period, it was permissible to visit another household and for up to three households to gather.¹⁶⁷ Ireland’s re-entry into Level 5 from 31 December 2020 meant the reintroduction of the highest level of restrictions with no household visits permitted and no gatherings permitted.¹⁶⁸

157.  Sporting events were subject to specific measures during this period. The first set of regulations introduced on 8 April 2020 did not contain any exemption for sporting activities with the consequence that both formal training and competition were prohibited.¹⁶⁹ Exemptions were subsequently introduced for elite training and later for elite competition or non-contact outdoor training of no more than 15 persons.¹⁷⁰

158.  Exercise within a two kilometre radius of one’s home was permitted. This was increased to five kilometres on 5 May 2020.¹⁷¹ From 18 May, it was permitted to exercise outdoors with 3 other persons from a different residence provided it was within five kilometres of one’s home.¹⁷²

159.  On 9 June 2020, this was increased further to a 20km radius. In addition, it was permitted to exercise outdoors with a maximum of 14 other persons. An exception to the 20km limit was included for elite sports people, defined as a person competing at a senior level in a Sport Ireland-funded elite scheme or a professional soccer or rugby player, to participate in organised training.¹⁷³

160.  From 29 June 2020, events—including sporting events—could be organised outdoors provided the maximum number of persons attending did not exceed 200.¹⁷⁴ This permitted the return of spectators up to 200 attendees.

161.  Due to concerns over rising case numbers, attendance at competitive sporting events was restricted to necessary persons only from 3 September 2020.¹⁷⁵ A subsequent report also linked increased transmission rates in certain areas to specific sporting events, notably county finals in Gaelic football and hurling. These matches take place between local clubs. There were reports that there had been significant increases¹⁷⁶ in cases in a number of Local Electoral Areas in which the victorious teams were based.¹⁷⁷ Training was restricted to groups of no more than six persons indoors, or for no more than 15 persons outdoors. Training could include more than one group provided that the groups would not comingle or otherwise come into physical contact with members of other groups. These restrictions did not apply to training for elite sportspeople within defined categories.

162.  Over the next two months, the numbers permitted to attend training or events within these categories differed in accordance with the Levels being applied to different local areas. When the country moved to Level 5 from 22 October 2020, elite sporting events or training sessions were permitted to take place provided they were attended only by necessary persons. Outdoor training was also permitted for children in groups of less than 15.¹⁷⁸

163.  The reimposition of Level 5 restrictions on 31 December 2020 reimposed the highest level of restrictions on these activities with the sole exception that persons from up to two households could meet outdoors for exercise with each household restricted to within five kilometres of their respective home.

164.  On 12 March 2020, the Taoiseach in an address to the nation from Washington DC (where he was attending St. Patrick’s Day events) announced the closure of schools, colleges, and childcare facilities, and citizens were asked to work from home where possible. On 15 March, after ordering the closure of bars, the government advised against house parties.

165.  Schools, creches, and childcare facilities were closed from 13 March 2020 until the commencement of the school year 2020/2021 at the end of August/early September.¹⁷⁹ There was some Summer Provision for students with special needs.¹⁸⁰

166.  The Annual Leaving Certificate, due to take place in May 2020, was postponed and a system of calculated grades was implemented to allocate ‘points’ to students intending to apply for third level courses.¹⁸¹ This system was based on an estimated percentage mark given by a teacher involved in the education of the student, which was then entered into an algorithmic process to produce what was described as a ‘calculated grade’.

167.  For students who wished to sit them, Leaving Certificate Examinations were held in November 2020, although the results of this sitting would be too late to permit entry to university in the 2020/2021 academic year.¹⁸²

168.  In Burke v Minister for Education,¹⁸³ a successful High Court challenge was brought against the proposed system by a student who had been educated at home by his mother, who was a qualified teacher. The Department of Education indicated that it could not accept an estimated grade from a teacher who was closely related to a student. The consequence of this was that the student could not receive a calculated grade. His sole option would be to sit the November examinations in person. This would have had the significant effect that the student would not receive results in time to attend a third-level institution in the 2020/2021 academic year. The High Court expressed the view that an independent teacher could have been involved in an assessment of the student such that that the refusal to provide a calculated grade was unfair and irrational.

169.  The Junior Cycle examinations due to take place in September 2020 were cancelled and replaced with alternative school-based assessments.

170.  The reopening of both primary and secondary schools was preceded by the publication of a Roadmap for the Full Return of Schools.¹⁸⁴

171.  Universities, while remaining functional, significantly reduced their on-campus activities with only essential teaching taking place on campus in most institutions. When restrictions began to be eased, these arrangements remained in place and there was no mass return to campuses in Ireland in September 2020.¹⁸⁵ The Minister for Education announced that teaching should be provided online from September 2020—initially this was directed to Dublin institutions and on 25 September this was extended nationwide.¹⁸⁶ There were reports of house parties and gatherings taking place near some campuses and both the Gardaí and university disciplinary organs took action in relation to same.¹⁸⁷

172.  Non-essential business premises were by law required to close between 13 March and 8 June 2020. The list of essential retailers included supermarkets, suppliers of food products and alcohol.

173.  Non-essential retail was permitted to reopen from 8 June 2020, with shopping centres opening on 15 June. Pubs serving food, restaurants, cafes, hotels, gyms, cinemas, and hairdressers reopened on 29 June. All of these were closed again when the country entered Level 5 between 22 October and 1 December 2020.

174.  There were various restrictions on the hospitality industry. These ranged from closure²⁵ and limited opening hours,²⁶ to a prohibition on the service of alcohol in the absence of persons ordering a ‘substantial meal’ of not less than €9 value at the same time,²⁷ and requirements to operate with restricted indoor capacity, with limited outdoor capacity only, or on a takeaway basis.²⁸ The measures required differed from time to time and on a geographical basis. Regulations also required operators of these premises to keep a record of persons attending at the premises for 28 days for contact tracing purposes.²⁹

175.  So-called ‘wet pubs’ in Dublin—pubs which serve alcohol but not food—were highly restricted. These premises were not permitted to reopen save for takeaway orders. ‘Wet pubs’ in other parts of Ireland were permitted to open on 21 September 2020. This was the fourth date identified for reopening after the Government had previously indicated it hoped to reopen on 20 July, 10 August, and 31 August. Each of these dates were deferred due to concerns over the public health position at the time. These pubs closed again on 22 October 2020 when Level 5 restrictions were re-introduced. An Ernst and Young report commissioned by the Government reported that there was an identified increase in the 14-day disease incidence rate per 100,000 10 days after the re-opening of wet pubs in every county other than Dublin (where they had remained closed).¹⁸⁸ Nightclubs have also remained closed throughout the pandemic.

176.  Parks were not closed during the lockdown, though children’s playgrounds were closed between 13 March and 8 June 2020. Access to popular coastal swimming areas was effectively blocked at the height of the general lockdown. Playgrounds have remained open since 8 June. Dedicated park hours for cocooners were advertised in public parks.

177.  There was no legally mandatory physical distancing requirement between members of the public. The public health guidance has consistently been that a distance of two metres be maintained between individuals. There was an extensive campaign to promote physical distancing including the provision of visual guides on footpaths and billboards. Businesses in the hospitality and entertainment industry were issued guidelines by Fáilte Ireland (National Tourism Development Authority of Ireland) to maintain various social distancing protocols in place after the general lockdown ended, including the spacing out of customers on their premises.¹⁸⁹

178.  The public health guidance on face coverings evolved during the pandemic. Initially, NPHET did not recommend their use citing the potential risks with improper usage. This advice changed following a report by the Health Information Quality Authority.¹⁹⁰

179.  Mandatory usage of face coverings was instituted on 13 July 2020 in respect of persons over the age of 13 for public transport,¹⁹¹ and from 10 August 2020 in retail premises and other businesses.¹⁹² The latter covers shopping centres, libraries, cinemas and cinema complexes, theatres, concert halls, bingo halls and museums, hairdressers, nail salons, tattoo parlours, travel agents, bookkeepers, and launderettes and dry cleaners. It is an offence to ‘enter or remain in’ such premises without a face covering without reasonable excuse.¹⁹³

180.  There is an obligation on the occupier, manager, or person in charge of premises to take reasonable steps to inform those entering the premises of their obligations and to promote compliance.¹⁹⁴

181.  In the case of public transport, the failure to comply with a request from a public transport official was made a penal offence and public transport officials were entitled to seek the assistance of the Gardaí in enforcing compliance. This is distinct from the position in retail premises etc. where the failure to wear a face mask itself comprises an offence.

182.  On 22 November 2020, an SI introduced fixed penalty fines of €80 for non-compliance with face covering requirements.¹⁹⁵

183.  In practice compliance in retail and commercial settings is generally on a voluntary basis. There have been some cases of police enforcement, for example, in December 2020, three individuals were reportedly fined for refusing to wear a face covering.¹⁹⁶

184.  There is an illustrative list of reasonable excuses for not wearing a face covering including an inability to wear a face covering due to illness,¹⁹⁷ and the obligation does not apply in the case of public transport to drivers in their own compartment or separated by screens.¹⁹⁸ Members of the Gardaí are also exempt.¹⁹⁹

185.  Face coverings have not been required in primary schools and are generally not required for children under the age of 13,²⁰⁰ unless they are attending secondary school where face coverings are required under the Department of Education and Skills Guidance.²⁰¹ Teachers in both primary and secondary schools are also required under the Department of Education Guidance, to wear face masks when two metre physical distance cannot be maintained.²⁰²

186.  Section 11 of the Health (Preservation and Protection and Other Emergency Measures in The Public Interest) Act 2020 inserted a new section 38A into the Health Act 1947. This came into effect on enactment on 20 March 2020 and provided for the detention or isolation of persons who were a potential source of infection with Covid-19, who posed a potential risk to public health and who could not be effectively isolated at home or in other accommodation agreed or arranged with the Health Services Executive. The medical officer who made the order was required to keep it under review and to ensure a medical examination was carried out as soon as possible and no later than 14 days. A person subject to an order could request their detention to be reviewed by a different medical officer. These powers appear not to have been used during the pandemic.

187.  The initial public health advice in February and March 2020 concentrated on the perceived risk of arrivals from areas with high rates of transmission. This referred initially to China with other countries later being included. The advice was that any person who had travelled from an affected area in the last 14 days or had been in close contact with a confirmed case in the last 14 days and was concerned that they may have symptoms should immediately isolate themselves from others and contact their GP by phone.²⁰³

188.  The requirement to self-isolate was later expanded to cover persons with symptoms, persons awaiting a Covid-19 test result, or those with a positive test result.²⁰⁴

189.  The advice has consistently been that self-isolation should be for a period of 14 days.²⁰⁵ Public health advice distinguished between self-isolation and restriction of movements. Self-isolation involved avoiding all contact with other people, including persons in your home as far as possible. Restriction of movement permitted persons to leave their home alone for exercise but advised that contact with other people should be avoided as much as possible. Shopping was permitted but only if necessary. Restriction of movement was advised for contacts of a confirmed case of Covid-19, or arrivals into Ireland from other countries. This did not apply to residents of or arrivals from Northern Ireland.

190.  As the proceedings in Ryanair v An Taoiseach confirmed,²⁰⁶ these restrictions were advisory only. The decision also confirmed, however, that they could in principle be susceptible to judicial review.

191.  Three different stages (contain, delay, and mitigate) of the pandemic have been referred to in Ireland and different people were tested depending on the phase and advice from European Centre for Disease Prevention and Control. Ireland’s testing strategy has varied according to the relevant phase with some disruption where resources and systems were not adequate for purpose.

192.  The first case of confirmed Covid-19 in the Republic of Ireland was on 29 February 2020. At this point, Ireland was in the containment phase. Everyone who was in contact with the case was contact traced. From early March 2020, symptomatic persons returning from affected regions and their contacts were tested.

193.  On 12 March 2020, NPHET announced Ireland was entering the Delay Phase. When the WHO called on all countries to test every suspected case of Covid-19 on 16 March 2020, there were five hospital sites around the country, in addition to the National Virus Reference Laboratory (NVRL), providing testing.

194.  From 26 March 2020, priority for testing was symptomatic people in specific groups, including: close contacts of a confirmed case; health care workers who are front facing/have regular patient contact; groups most at risk of severe infection such as persons with diabetes, immunosuppressed, chronic lung disease, chronic heart disease, cerebrovascular disease, chronic renal disease, chronic liver disease, and smokers; household contacts of at-risk groups; staff and residents of nursing homes and other residential care settings and those in direct provision; homeless people; Roma and travelling community settings where symptom management is difficult; prison staff and inmates where it may be difficult to implement self-isolation advice; and pregnant women to ensure they can be managed safely in hospital, minimising the risk of spread in the maternity hospital. Nursing homes were prioritised for testing in April 2020.²⁰⁷

195.  GPs, hospital doctors, and specialists could refer people for testing. Individuals could ring a helpline where they were encouraged to contact their GP by phone. GPs and GP out of hours services carried out triage over the phone and, since mid-March 2020, people were encouraged to contact their GP by phone as first point of contact.

196.  Initially, testing took place in hospitals. In the first week of March 2020, the National Ambulance Service began testing in people’s homes. On 17 March the first drive-through testing centre opened in the national stadium, Croke Park, Dublin. By 30 March 2020, there were 47 testing centres operating, in a variety of different places, including healthcare facilities, sporting grounds, and closed airports.

197.  Throughout March and early April 2020, there were continuous issues with delays in testing with many people waiting 7–10 days for test results. On 1 April 2020, the HSE and the Minister for Health apologised for delays in test results for Covid-19 citing the global shortage of testing kits, reagents, and other essential equipment. The HSE said it was making every effort to improve turnaround times.²⁰⁸

198.  The backlog of persons awaiting results grew to 35,000 at one stage and there was an incident in April 2020 where it was reported almost 100 people may have received incorrect results.²⁰⁹

199.  By 27 April 2020, 153,054 tests had been carried out in Ireland, 41,470 of which were carried out over the previous week—37,000 of these tests were carried out in the nursing home sector on both staff and residents.

200.  While officially it was stated that tests were being turned around in a 24–36-hour period, there continued to be media reports of delays in test results for people, particularly those in the community.²¹⁰

201.  The criteria for testing were expanded in March 2020 to include any person with one of the identified symptoms of a cough, fever above 38 degrees Celsius, or shortness of breath. This led to a significant increase in referrals which, in turn, generated a backlog in the testing and tracing system. As a result, the criteria for testing were changed to require two of these symptoms. Pending referrals were cancelled with those who had been referred having to contact their GPs again to be assessed under the new stricter criteria. The test criteria issued to GPs by the HSE changed on 28 April and again on 6 May 2020.²¹¹ The criteria for referral for testing were significantly broadened to cover people with one of a large range of specified symptoms as well as their close contacts. Loss of taste and smell were later added as a symptom in May.

202.  There was reported to be tension between NPHET and the Health Service Executive as the latter took issue with commitments given by NPHET about the level of testing that would be provided.²¹² A Roadmap to enhance capacity and turnaround for Covid-19 Testing and Tracing was released by the HSE on 14 May 2020 announcing an increase in testing and tracing capacity.²¹³

203.  In April 2020, NPHET established a task force to explore Covid-19 testing. On 27 July, they were critical of the State’s testing and tracing system.²¹⁴ Concern was expressed about a lack of capacity to carry out PCR testing, the key feature of the State’s testing strategy. In April, the task force had recommended that more robust governance, management, and co-ordination structures were required. It also cautioned that human resources and infrastructure in universities, industry, and research centres was not being fully utilised. Members of the task force said on 27 July 2020 that their recommendations were ignored and that no feedback was given from NPHET on their report.²¹⁵

204.  The Department of Health disputed the idea that suggestions from the task force had been ignored and further said that NPHET relied on advice from the WHO and ECDPC, and its own membership.²¹⁶

205.  Testing capacity was increased over later months by expanding capacity in Ireland and by securing additional testing capacity from laboratories in Germany. The system appeared to have been working effectively after a few months.

206.  The vaccination programme commenced in Ireland on 29 December 2020.²¹⁷

207.  Testing and contact tracing in Ireland has been organised by the Health Services Executive, using a system based on referrals for testing by GPs.

208.  Initially, testing and contact tracing was confined to close contacts of confirmed cases or persons from a limited number of affected areas such as China or Northern Italy.

209.  The contact tracing system²¹⁸ involves making contact with a person who has received a positive test and requesting details of the people and places they have visited in the 48 hours before symptoms started. Contact tracers are based at a number of established contact tracing centres and have completed an HSE training programme. If a person tested positive with no symptoms, the contact tracer only requests details of people and places in the 24 hours before the test took place. Contact tracers will then contact close contacts of the person to inform them that they are advised to be tested for Covid-19 and to restrict their movements for 14 days. This period applies even if the test returns a negative result. Contact tracers will try and call close contacts up to five times over two days. Close contacts are defined using guidance from the Health Protection Surveillance Centre and include any individual who had greater than 15 minutes of contact with a confirmed case at a distance of less than two metres.

210.  There is also provision for so-called enhanced tracing where confirmed cases are asked to provide details for a period longer than the usual 48 hours. This can be for up to 14 days. Enhanced tracing has been used for certain complex settings such as nursing homes or meat processing plants. NPHET representatives stated in September 2020 that they did not have the time or resources to conduct this in all cases as the priority was preventing onward transmission from current known cases. However, it was announced that the intention is that a general system of enhanced tracing for a period of up to seven days would commence from the middle of December onwards.

211.  There was controversy in early October 2020 over an incident in which an increase in referrals exceeded capacity in the contact tracing system. This led to a decision being made to request 1,971 people to notify their own close contacts.

212.  The system is supplemented by a contact-tracing mobile phone app, Covid Tracker.²¹⁹ The app is designed to use Bluetooth signals from mobile phones to track close contacts with persons who have tested positive for Covid-19. As of the date of this report, the app has 1.3 million active users from a registered user base of 2.2 million. Figures indicate that so far 10,100 users have been alerted by the app that they were a close contact of a positive case.

213.  A significant number of cases—typically more than 30%—have been registered by the HSE as cases of ‘community transmission’. This refers to cases in which contact tracing does not identify the likely source of the infection so that it is unknown how the person became infected.

214.  The first case of Covid-19 in a nursing home was identified on 29 February 2020. A decision was taken on 13 March 2020 to suspend routine inspections of nursing homes to avoid spread via inspections.²²⁰ Specific areas of concern and risk were listed in correspondence from the Chief Inspector to the Department of Health on 13 March 2020.²²¹ Risk inspections resumed in late May 2020 and focused primarily on those centres that had reported confirmed cases of Covid-19.²²²

215.  The Health Protection Surveillance Centre of the HSE developed Interim Public Health, Infection Prevention & Control Guidelines on the Prevention and Management of COVID-19 Cases and Outbreaks in Residential Care Facilities.²²³ Separate guidance on admissions, visits, and other matters were also issued by the HPSC.²²⁴ Under the Plan, visits to nursing homes were permitted under Level 1 with protective measures, and under Level 2 with enhanced protective measures. For Levels 3–5, the Plan stated that there should be no visits save ‘in critical and compassionate circumstances’. This applied to indoor visits only and window visits were permitted. Some limited visits were permitted in some nursing homes, such as for families of those residents who were facing the end of their lives. There were strict controls around physical distancing, the use of screens, and the number of people that were permitted to visit.²²⁵

216.  Under HPSC guidance for nursing homes that came into effect from 7 December 2020, an updated definition was provided for ‘critical and compassionate circumstances’.²²⁶ It provided that, subject to risk assessment in each case, nursing home residents may receive: up to one visit by one person per week under Levels 3 and 4 of the framework under the Plan; and up to one visit by one person per two weeks under Level 5. It also noted that every practical effort should be made to accommodate an additional visit on compassionate grounds during the period of a major cultural or religious festival or celebration of particular significance to the resident, such as the Christmas and New Year period.

217.  The military have not played any role in enforcing public health regulations. The primary responsibility for enforcement has been An Garda Siochána (the police). However, only certain of the public health measures announced by Government have had legal effect, and the Gardai have been conferred with enforcement powers in relation to only a certain portion of these.

218.  Plans were announced on 13 March 2020 by the Garda Commissioner to respond to the pandemic. These plans were stated to maximise the availability of Gardai for high visibility policing and included new roster arrangements, postponing retirements, extracting 319 recruit Gardaí to allocate to front-line duties with appropriate supervision, and redeploying Gardaí who work at the Garda College to frontline duties. The organisation also hired 210 vehicles.

219.  There has been a degree of public uncertainty at various points of the pandemic regarding the basis and scope of these enforcement powers. Perhaps most notably, the announcement of the first national ‘lockdown’ on 27 March 2020 was accompanied by references from both Government and the Gardai to the role of the Gardai in enforcing the measures. The Gardai announced that they would be conducting high-visibility patrols and checkpoints. While the purpose of this was described in some reports as encouraging compliance, other media reports made reference to the Gardai acting ‘to ensure the public comply with new measures’.²²⁷

220.  In fact, the measures in question were not given legal effect until 8 April 2020 when Health Act 1947 (Section 31A -Temporary Restrictions) (Covid-19) Regulations 2020 was introduced.²²⁸ The Minister for Health was described in media reports as having stated that these regulations would give the Gardai extra or additional powers to enforce the measures.²²⁹

221.  This divergence between formal enforcement and advice has been noted by the Policing Authority in its reports. It has recorded in this most recent report that ‘there is some survey evidence that a great many more people believe they have been the subject of the use of new garda powers than the enforcement incidents reported by the Garda Síochána. This refers in the main to those drivers who believe they have been directed, as opposed to being advised or encouraged, to discontinue a journey’.²³⁰

222.  The same approach was adopted in October 2020 when the announcement was made by the Government that the country was entering Level 3 restrictions. This included a requirement that persons not leave their counties other than for essential reasons. The Gardai had not been provided with powers to enforce this restriction. However, a high-profile policing operation entitled Operation Fanacht (‘wait’ in Gaelic Irish) was announced. This involved checkpoints at 132 locations including major roads and motorways at which Gardai would ask motorists the purpose of their journey and advise people to turn back if they were acting contrary to the regulations.²³¹ The operation led to significant traffic delays on major arterial routes.²³²

223.  The Minister for Justice and Equality requested the Garda Commissioner to compile and publish weekly data on the use of these powers, with a view to ensuring transparency. Garda publications recording data on the use of these powers can be accessed on the website of An Garda Síochána.²³³ The Minister also requested the Policing Authority to report regularly on the use of the powers.

224.  Between 8 April and 31 October 2020, the Gardai exercised powers under Covid-19-related regulations 702 times.²³⁴ This included for the purposes of inspecting licensed premises as well as individual breaches of the regulations. Of the latter category, eight incidents related to breaches regarding face coverings, five incidents related to breaches regarding international travel, 11 incidents of suspected breaches of regulations by retailers, and 37 incidents relating to other breaches, for example, organising events which breached regulations.

225.  The Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 was enacted on 11 September 2020 to provide for additional inspection and enforcement powers for premises with alcohol licences.²³⁵ The Act also conferred a power on Gardai to object to the renewal of a licence for premises in respect of which there had been an actual or suspected failure to comply with public health directions. It was reported that this power was used to object to the renewal of a licence by a Dublin premises that was the subject of controversy after video footage emerged of a staff member standing on a bar pouring shots into customers’ mouths.²³⁶

226.  On 22 November 2020, further powers were given to the Gardai to impose fixed penalty fines of: €80 in relation to breaches of the regulations requiring face coverings on public transport and in certain retail premises; €100 for leaving their place of residence without a reasonable excuse; €150 for attending an unlawful event in a private dwelling; and €500 for organising events that breached the limits imposed on the numbers attending. These powers to enforce fixed payment notices were conferred by the new section 31C of the Health Act 1947,²³⁷ as inserted by section 4 of the Health (Amendment) Act 2020.

227.  The regulations giving effect to fixed penalty notices were introduced under section 31A (6C) of the Health Act 1947, as inserted by section 3 of the Health (Amendment) Act 2020.²³⁸

228.  Section 5 of the Health (Amendment) Act 2020 inserted a new section 31D into the Health Act 1947.²³⁹ This conferred powers on a member of An Garda Siochána to direct a person suspected of intending or attempting to enter a dwelling to attend an event to leave the vicinity, and to attend at a dwelling, request the identity of the occupier, and direct the occupier to require all non-residents to leave a dwelling where an unlawful event was suspected of taking place. Failure to comply with a direction under section 31D is a summary offence, punishable by fines up to €1000 and/or imprisonment for up to one month.

229.  The Act did not confer a power on Gardai to enter a dwelling for these purposes.

230.  The use of anti-spit hoods was permitted from the outset of the pandemic because of concerns over an infection risk from persons spitting or coughing at members of An Garda Siochána. The Irish Council for Civil Liberties has called on the Gardai not to use anti-spit hoods. The most up to date figures indicate that, as of 31 October 2020, these have been used 118 times, including six times on persons under 18.

231.  The Government has reported high levels of compliance across all areas of the regulations.²⁴⁰ The NPHET Behavioural Change Sub Group²⁴¹ also carried out analysis of measures such as handwashing, social distancing, and self-isolation, noting in April 2020 that there was ‘no sign of lockdown fatigue … yet’.²⁴²

232.  The Department of Health commissioned weekly public opinion surveys which it published on its website from 4 May 2020 onwards. The polls captured a range of self-reported behavioural changes, such as handwashing, movement outside the home, and face coverings. On 5 May 2020, the poll reported that 87% of people were staying home more rather than going out, and 16% of adults were wearing face masks in public places—this is not required under the restrictions where masks are required only in certain situations (see discussion above at Part IV.A.6). By 21 December 2021, the number had risen to 93%, with 98% then reporting their use ‘every time’ on public transport and 96% reporting their use ‘every time’ when shopping.²⁴³

233.  The poll on 21 December 2020 also noted that 45% of people thought everyone was following the guidelines, with 32% thinking half of the people were following the guidelines and 8% thinking almost everyone was following the guidelines. Only 2% thought almost nobody was following the guidelines and 11% that most people were not.²⁴⁴

234.  The Central Statistics Office also published research on the impact of the restrictions which gave some information on compliance levels. In November 2020, when the country was living under Level 5 restrictions, almost two-thirds (65.2%) of respondents rated their compliance with current government advice and guidelines as high, compared with three-quarters (75.4%) of respondents rating their compliance as high in August 2020. Respondents reporting high compliance was lowest in June (59.9%) when the country was just about to enter Phase 3 of the Roadmap and highest in April (80.6%) approximately a month after initial Covid-19 restrictions were implemented.²⁴⁵

Prof. Eoin Carolan, University College Dublin

Dr. Ailbhe O’Neill, Trinity College Dublin