As with other states, the Irish government’s Covid-19 response has involved a combination of law and advice. Sometimes the line between the two has been confused, but there is a critical distinction.
A public advice strategy is based on establishing trust and credibility through clear and authoritative communications. Legislation is a more powerful tool which compels obedience. To a large extent, the approach of the government has been to rely on advice to the greatest extent possible, and to have recourse to law to the minimum extent necessary.
In relation to the threat posed by infection from international travel, for example, the government has adopted a nuanced strategy based on personal autonomy and responsibility. Hence, it has chosen not to ban flights or mandate quarantine, but to advise against non-essential travel and legislate instead for contact tracing.
We understand it is also exploring testing options at points of entry. For what it’s worth, the Irish Council for Civil Liberties supports this moderate and seemingly effective approach.
Given this carefully calibrated strategy, the revelations in the Business Post on Sunday of punitive and discriminatory measures against one group of travellers – those reliant on the pandemic payment and social welfare – are quite incongruous. They also suggest a worrying disregard for the rule of law and principles of non-discrimination.
What we know so far is that on July 10, Heather Humphreys, the Minister for Social Protection, signed into law a statutory instrument inserting a new definition of “holiday” into the Social Welfare Regulations 2007.
Previously, a recipient of a social protection payment was entitled to take a two week holiday without infringing any general requirement that they remain in the state. Under this legislative change, only holidays “in accordance with the general Covid travel advice of the Department of Foreign Affairs” would be allowed.
Holidays outside the advice could now result in a person being disqualified and their benefit being withdrawn. Many people have suffered this consequence. The power to introduce laws is governed by the constitution – there are rules about how laws can be made and the public have a right to know what the law is.
In the first instance, a minister can only introduce a statutory instrument (legislation such as the above) within the limits of policy and principles already set out in a valid piece of primary legislation.
This is not a mere technicality – the purpose of the rule is that every law must be able to trace its legitimacy back to the will of the people. If the minister wishes to set a new policy, she must propose primary legislation in the Oireachtas, thereby ensuring parliament makes the law of the state.
There is no law against international travel from or into Ireland at present. Minister Humphreys has given a piece of government advice the force of law, but only with respect to people in receipt of social protection payments, who face severe penalties for disregarding it. Everyone else is also advised not to undertake certain travel, but there are no consequences for rejecting this advice.
A second relevant principle is that those subject to the law must have a reasonable opportunity of knowing what their rights and obligations are. Hundreds of thousands of people were affected by this statutory instrument.
Until this week, it is highly unlikely they could have been aware of the possible legal effects of any decision to travel. No meaningful effort was made to inform them of this change by public awareness campaigns or by individual correspondence.
A third problem for the minister is the question of how the department obtained information about personal travel. It is not clear which agencies acquired details about individual travel, on what legal basis, or how this was transferred to the Department of Social Protection. The Data Protection Commissioner has initiated an investigation.
Singling out social welfare recipients is not a new tactic, and is one which will always garner support from some quarters. This mean-spirited and legally dubious measure has raised serious questions for the government, but perhaps the most worrying aspect has been its reaction to the resulting controversy.
Following media comments by Leo Varadkar, the Tánaiste, on Sunday, it appears the department has changed the public information about requirements for the pandemic unemployment payment to now include a requirement that recipients must be actively seeking work – a contradiction to the stated purpose of the scheme.
More shockingly, the information on conditions for jobseekers’ allowance has also been changed. On July 10, the department felt it was necessary to use legislation to limit the definition of a social welfare “holiday“. Yesterday it suspended all provision for holiday exemptions for social welfare recipients by a post on its website.
All governments step beyond the rule of law at times, often inadvertently, sometimes from excessive zeal, occasionally blatantly. When a government responds to being called out by rewriting the facts, we should all be concerned.
Liam Herrick is executive director of the Irish Council for Civil Liberties