New regulations signed by Simon Harris last night

Juicee

Hi, I have a question about the new regulations / powers given to Gardaí.

Given that article 40 of the constitution protects personal liberty of citizens
(save in a case of Emergency, which is defined as War, and I understand [correct me if I am wrong] that the Supreme Court recently reaffirmed Emergency as only referring to War and nothing else)

Given that article 15 of the constitution states that any legislation contravening the constitution is invalid

- Are the new regulations constitutional and lawful?? It seems to be that given the above, they are not.

Now I know some people feel very strongly about voluntary compliance and I am not here to engage in arguments over the morality or if people think others are stupid covidiots or any of that stuff. Just a straight up legal opinion.

Thanks

sydthebeat

Does 40.6.1 (ii) not cover it though:

Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.

Juicee

sydthebeat wrote: »

Does 40.6.1 (ii) not cover it though:

Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.

Thanks for reply Syd.

This seems to cover public gatherings that are meetings but what about gatherings that aren't meetings eg walk in park [edit: or in any public place] with family and also for example an individual out walking or running etc?

Thanks

Curious_Case

Obviously the new regulations will include a freezing of all banking charges (fees & interest)

No? What?
So Leo was delighted that they didn't charge the €30 card fee, was he?

Well now we know why they didn't charge it,
It's because it's the smallest element of banking charges and was sacrifced to avoid having to make any other concessions

Time for the minister of finance to march down to the central bank methinks

Mod
Off topic

Páid

Have these regulations been published anywhere? I cannot find them on IrishStatuebook.ie

Juicee

Páid wrote: »

Have these regulations been published anywhere? I cannot find them on IrishStatuebook.ie

I find it hard to believe that this could come into effect overnight. As you imply, shouldn't these be properly published and timelined in order to be valid or legitimate? Can a caretaker government even pass legislation? Even if we had a fully sworn in government, is this legislation constitutional?

Páid

I'm not implying anything.

Found them here - https://www.gov.ie/en/press-release/e9d120-minister-for-health-simon-harris-signs-regulations-to-give-an-garda-/

https://assets.gov.ie/72646/60db1b5e7e5e414a9c92dd04da0a67c4.pdf

Juicee

With reference to the points raised in my first post (Articles 15 & 40 of the Constitution). Are the measures introduced by Simon Harris constitutional?

80j2lc5y7u6qs9

Is a garda empowered to decide what is essential and what not and is this constitutional.. i.e "you cannot go shop as x is not essential"

80j2lc5y7u6qs9

Juicee wrote: »

With reference to the points raised in my first post (Articles 15 & 40 of the Constitution). Are the measures introduced by Simon Harris constitutional?

are you talking of gatherings or not being allowd to travel certain places?

Caranica

Juicee wrote: »

I find it hard to believe that this could come into effect overnight. As you imply, shouldn't these be properly published and timelined in order to be valid or legitimate? Can a caretaker government even pass legislation? Even if we had a fully sworn in government, is this legislation constitutional?

The government didn't pass the legislation, the Oireachtas did. Passed by both houses almost two weeks ago. Was not signed into law at the time as it's the nuclear button but it's clearly needed so was last night. Tbh looking at some of the carry on today, they need to get even tougher. Plus I don't know why they brought it in until Sunday when Monday is a bank holiday.

80j2lc5y7u6qs9

Caranica wrote: »

The government didn't pass the legislation, the Oireachtas did. Passed by both houses almost two weeks ago. Was not signed into law at the time as it's the nuclear button but it's clearly needed so was last night. Tbh looking at some of the carry on today, they need to get even tougher. Plus I don't know why they brought it in until Sunday when Monday is a bank holiday.

I thought it was brought in to Monday?
They say it will probably be extended

Juicee

Weston Echoing Ivy wrote: »

are you talking of gatherings or not being allowd to travel certain places?

I'm talking about the restrictions on movement - families or individuals not being allowed to go where they want or being required to give their address or destination to Garda when asked. Is this constitutional?

Caranica

Juicee wrote: »

I'm talking about the restrictions on movement - families or individuals not being allowed to go where they want or being required to give their address or destination to Garda when asked. Is this constitutional?

The AG has approved it so it must be.

Kevin3

The relevant section is:

Article 40
4 1° no citizen shall be deprived of his personal
liberty save in accordance with law.

The important part is "save in accordance with law" so yes, the Oireachtas can pass laws to infringe on liberty.

Páid

Caranica wrote: »

The government didn't pass the legislation, the Oireachtas did. Passed by both houses almost two weeks ago. Was not signed into law at the time as it's the nuclear button but it's clearly needed so was last night. Tbh looking at some of the carry on today, they need to get even tougher. Plus I don't know why they brought it in until Sunday when Monday is a bank holiday.

A Statutory Instrument is not passed by Government or The Oireachtas. It is signed by the Minister under whose remit an Act falls (in this case The Health Act 1947).

noodler

Difference between legislation and regulations ppl.

The legislation was passed over a week ago

Once passed and signed into law, the relevant minister can make the regulation whenever.

un5byh7sqpd2x0

Páid wrote: »

A Statutory Instrument is not passed by Government or The Oireachtas. It is signed by the Minister under whose remit an Act falls (in this case The Health Act 1947).

Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 actually

Juicee

Kevin3 wrote: »

The relevant section is:

Article 40
4 1° no citizen shall be deprived of his personal
liberty save in accordance with law.

The important part is "save in accordance with law" so yes, the Oireachtas can pass laws to infringe on liberty.

This will be the nub of the inevitable high court / supreme court challenge. The Constitution seems clear to me.

Páid

Nikolas Polite Mistletoe wrote: »

Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 actually

This thread is about the S.I.'s that Simon Harris signed last night. I posted a link to them earlier but here they are again - https://www.gov.ie/en/press-release/e9d120-minister-for-health-simon-harris-signs-regulations-to-give-an-garda-/

There are two, the first declares that Ireland is an area that is known or thought to have transmission of Covid-19 and the second S.I. lists numerous exemptions to the 2km limit. I'm not an expert but it also allows a Garda deem that other reasons for going outside that 2km limit may be considered reasonable.

Elemonator

Juicee wrote: »

This will be the nub of the inevitable high court / supreme court challenge. The Constitution seems clear to me.

I'm open to correction, but I'd imagine the proportionality test set out in Heaney v Ireland is relevant here?

Heaney v. Ireland, a case where the plaintiffs had challenged the constitutionality of section 52 of the Offences against the State Act, 1939 as being contrary to Article 38.1 of the Constitution, Costello J. referred to a formulation of the test of proportionality in Canada. He stated:
In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights (see, for example Times Newspapers Ltd. v. United Kingdom, (1979) 2 E.H.R.R. 245) and has recently been formulated by the Supreme Court in Canada in the following terms. The objectives of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible, and
(b) be such that their effects on rights are proportional to the objective:
Chaulk v. R. [1990] 3 S.C.R. 1303 at pages 1335 and 1336.

Leading on from that, I'd imagine limiting citizen's rights temporarily in the interests of public health is legally permissible.

Páid

These are the sections of The Health Act 1947 that are quoted in the S.I's signed last night.

http://www.irishstatutebook.ie/eli/1947/act/28/section/31/enacted/en/html

and the schedule

http://www.irishstatutebook.ie/eli/1947/act/28/schedule/2/enacted/en/html#sched2

This seems particularly relevant;

4. The requiring of adult persons to remain in their homes or the parents of children to keep the children in their homes and the requiring of such adult persons or parents to take in such homes precautions by way of isolation or otherwise against the spread of infection.

We are dealing with an infectious disease here.

Juicee

It seems inevitable that a court will be ruling on these interpretations at some stage

sydthebeat

Juicee wrote: »

It seems inevitable that a court will be ruling on these interpretations at some stage

Why do you say that?

Juicee

Because of the extreme nature of the measures. Has the constitutionality of the health act ever been tested I wonder? Part 3 of the section referenced above seems to allow for mandatory vaccinations.. cant see that flying

3. The requiring of adult persons to submit themselves, or the parents of children to submit such children, to specified measures in relation to the protection or immunisation of such adult persons or children against a particular infectious disease.

Páid

Juicee wrote: »

Because of the extreme nature of the measures. Has the constitutionality of the health act ever been tested I wonder? Part 3 of the section referenced above seems to allow for mandatory vaccinations.. cant see that flying

3. The requiring of adult persons to submit themselves, or the parents of children to submit such children, to specified measures in relation to the protection or immunisation of such adult persons or children against a particular infectious disease.

That argument is a bit premature IMHO as the Minister has not signed legislation to that effect.

If the disease/virus were serious enough I think that most people in society would volunteer for vaccinations. Keep in mind all of the voluntary vaccinations that happen at the moment i.e. MMR, flu, 6 in 1, meningitis, etc.

How does it serve society if a small percentage of people are allowed to spread potentially fatal diseases? If they do so knowingly should they be charged with murder, manslaughter, assault, etc.?

Juicee

Páid wrote: »

How does it serve society if a small percentage of people are allowed to spread potentially fatal diseases? If they do so knowingly should they be charged with murder, manslaughter, assault, etc.?

Shouldn't this rationale be applied to the vaccine makers (and profiteers) on the back of injuries and deaths caused by vaccines? But aren't they protected from even any kind of civil action (never mind criminal charges) in most countries?

Also, (slightly off topic), why should those who have been willingly vaccinated fear the unvaccinated? surely their vaccines should protect them from being infected by the unvaccinated?

And getting back on topic, I don't see how someone could be accused of wilfully spreading disease etc simply by not taking a vaccine. Sounds like very dangerous thinking (no offense to you, I know you are just posing the question)

The whole thing is going in a very dark direction anyway.. worrying times I feel.

sydthebeat

Sounds very much like anti-vaxxer propaganda to me.

If you don't understand why people refusing to vaccinate their children is a threat to both their own child, and to the wider society as a whole, then you need to do some homework.

Captain_Crash

Elemonator wrote: »

The means chosen must pass a proportionality test. They must:
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible, and
(b) be such that their effects on rights are proportional to the objective:
Chaulk v. R. [1990] 3 S.C.R. 1303 at pages 1335 and 1336.

Leading on from that, I'd imagine limiting citizen's rights temporarily in the interests of public health is legally permissible.

I ask this question, and merely playing devils advocate here, to answer those points of the test

(a) I would consider that the 2km radius to be arbitrary, no issue with it per se, but I have not been able to find any reasons medical/scientific or otherwise for this limit (someone is no less infectious withing 2km from their home than away from it) so to quote a famous Anglo banker, I do think someone pulled the 2km from their ar....... again, I stress, no real issues with it personally, just asking the question.

(b) It could be argued they could impair less but for me its fair to say the enhanced restrictions do try and allow us as much freedom as they can so I'd yeah, they impair as little as possible.

(c) This is a tough one... on one hand, its a global pandemic so I can see the reasoning of a persons belief that its proportionate. BUT... on the other hand, in a country with a pop of 4.6m and less than 7000 known cases (about 1/6th of a % of our pop) the chances of coming across someone who is infected is fairly slim and thus catching it while going about your daily business is fairly unlikely. So is stopping me from doing something based on this proportionate? that's a tough question, I can see the yes and no



I may have got the above all sorts of wrong and am happy to be corrected. I studied law but it was a while ago and don't practice for a living, so wouldn't be as versed as many people here.

80j2lc5y7u6qs9

Captain_Crash wrote: »

I ask this question, and merely playing devils advocate here, to answer those points of the test

(a) I would consider that the 2km radius to be arbitrary, no issue with it per se, but I have not been able to find any reasons medical/scientific or otherwise for this limit (someone is no less infectious withing 2km from their home than away from it) so to quote a famous Anglo banker, I do think someone pulled the 2km from their ar....... again, I stress, no real issues with it personally, just asking the question.

(b) It could be argued they could impair less but for me its fair to say the enhanced restrictions do try and allow us as much freedom as they can so I'd yeah, they impair as little as possible.

(c) This is a tough one... on one hand, its a global pandemic so I can see the reasoning of a persons belief that its proportionate. BUT... on the other hand, in a country with a pop of 4.6m and less than 7000 known cases (about 1/6th of a % of our pop) the chances of coming across someone who is infected is fairly slim and thus catching it while going about your daily business is fairly unlikely. So is stopping me from doing something based on this proportionate? that's a tough question, I can see the yes and no



I may have got the above all sorts of wrong and am happy to be corrected. I studied law but it was a while ago and don't practice for a living, so wouldn't be as versed as many people here.

The further you go the more likely you will meet more people and more likely one will have it. Maybe they reasoned when they pulled the 2km from their ar.......that most people can access shop or necessary service etc within 2km

Captain_Crash

Weston Echoing Ivy wrote: »

The further you go the more likely you will meet more people and more likely one will have it. Maybe they reasoned when they pulled the 2km from their ar.......that most people can access shop or necessary service etc within 2km

Don’t disagree with any of that! That’s surely the reason the 2km is in place! But.... like you say, you’re sure they reasoned then they pulled it.... so in essence, does that not make it arbitrary

80j2lc5y7u6qs9

Captain_Crash wrote: »

Don’t disagree with any of that! That’s surely the reason the 2km is in place! But.... like you say, you’re sure they reasoned then they pulled it.... so in essence, does that not make it arbitrary

yes it does. also how do they determine what is essential that seems arbitary but i guess they have to have some leeway

Páid

The Act I quoted earlier allows for the Government to impose isolation in people's homes. They have not gone this far as they have allowed numerous exemptions and a 2km radius within which people are allowed to exercise. Even if you normally run 20km a day, it's still possible.

Also, note that the Minister for Health cannot make this decision on his own. He must consult with three other Ministers (Justice, Finance and Public Expenditure) and the CMO before he can declare Ireland an Affected Area.

sydthebeat

Captain_Crash wrote: »

Don’t disagree with any of that! That’s surely the reason the 2km is in place! But.... like you say, you’re sure they reasoned then they pulled it.... so in essence, does that not make it arbitrary

it would not be an arbitrary figure, it will be based on statistical modelling ..

https://www.youtube.com/watch?v=gxAaO2rsdIs

start from about 3 mins in

Quantum Erasure

Weston Echoing Ivy wrote: »

The further you go the more likely you will meet more people and more likely one will have it. Maybe they reasoned when they pulled the 2km from their ar.......that most people can access shop or necessary service etc within 2km

As posted elsewhere:

Bandana boy wrote: »

the 2km only applies to exercise
if your business is essential the 2km does not apply
if your business is non essential the 2km is not a waiver

Captain_Crash

Páid wrote: »

The Act I quoted earlier allows for the Government to impose isolation in people's homes.

But the discussion here inst what the act allows, it's whether the act is constitutional or not.

Páid

Captain_Crash wrote: »

But the discussion here inst what the act allows, it's whether the act is constitutional or not.

You only quoted a fraction of what I said and missed the important point.

The Minister has not gone outside his powers. He has signed two SI's that do not go as far as the Act allows him to.

That Act was signed into law decades ago.

80j2lc5y7u6qs9

Apparently there is an anomaly where by garden centres and hardware stores can open bank holiday Monday. Minister advised they do not but does not have to power to stop them

Juicee

Páid wrote: »

You only quoted a fraction of what I said and missed the important point.

The Minister has not gone outside his powers. He has signed two SI's that do not go as far as the Act allows him to.

That Act was signed into law decades ago.

The key question here is whether the relevant parts of the 1947 Act (and relevant regulations arising from it) are constitutional.

Rationales have been put forward as to why it perhaps should be, including international examples.

But I've seen nothing that could override articles 15 and 40 with regard to personal liberty.

This will be challenged in court I think.

80j2lc5y7u6qs9

Juicee wrote: »

The key question here is whether the relevant parts of the 1947 Act (and relevant regulations arising from it) are constitutional.

Rationales have been put forward as to why it perhaps should be, including international examples.

But I've seen nothing that could override articles 15 and 40 with regard to personal liberty.

This will be challenged in court I think.

I'd be inclined to agree. Whatcan happen it will be over by the time the court comes up. Can people claim compensation for being prevented free movement

tayto lover

Who is going to challenge anything at this moment in time?
Everything that is being done is for the good of all.

abff

tayto lover wrote: »

Who is going to challenge anything at this moment in time?
Everything that is being done is for the good of all.

Eloquently put, tayto lover. And I agree with you 100%.

But unfortunately, there are always ass**les who will stir up sh*te just for the sake of it, or out of some distorted view of their own importance. The fact that we even need to debate this is an unfortunate consequence of the existence of such people.

tayto lover

tayto lover wrote: »

Who is going to challenge anything at this moment in time?
Everything that is being done is for the good of all.

But, some people need telling again and again.

80j2lc5y7u6qs9

abff wrote: »

Eloquently put, tayto lover. And I agree with you 100%.

But unfortunately, there are always ass**les who will stir up sh*te just for the sake of it, or out of some distorted view of their own importance. The fact that we even need to debate this is an unfortunate consequence of the existence of such people.

it isn't. it is the fact that this is a legal discussion forum. Surprisingly enough a legal discussion is sought.The OP said, and i enter this quote as exhibit A



"I am not here to engage in arguments over the morality or if people think others are stupid covidiots or any of that stuff. Just a straight up legal opinion."

abff

Weston Echoing Ivy wrote: »

it isn't. it is the fact that this is a legal discussion forum. Surprisingly enough a legal discussion is sought.The OP said, and i enter this quote as exhibit A



"I am not here to engage in arguments over the morality or if people think others are stupid covidiots or any of that stuff. Just a straight up legal opinion."

Point taken. I guess my real problem is not with the fact that the actions being taken might be unconstitutional, but the fact that people are behaving in such a way that such actions are deemed necessary in the first place.

80j2lc5y7u6qs9

abff wrote: »

Point taken. I guess my real problem is not with the fact that the actions being taken might be unconstitutional, but the fact that people are behaving in such a way that such actions are deemed necessary in the first place.

My interest in it it is just from the actual legal situation

Páid

I know nothing about Constitutional Law but it seems to me that the second S.I. is sufficiently lose to allow Gardaí deem an excuse be reasonable even if it is not one of the exemptions. For this reason I don't see a problem with it.

Gardaí are there to protect the public and the Rule of Law. If you have a good excuse to travel and the Garda believes you then no problem. If the Gardaí don't think your excuse is reasonable then they will ask you to turn around and go home.

It's only in extreme circumstances will they be arresting people. They had to chase a woman yesterday who drove off. When they stopped her she wasn't arrested, she was asked to return home.

This is the good news story on the eve of the news tomorrow that the restrictions are here to stay for another while - https://jrnl.ie/5071374

Justification that the restrictions are working.

Captain_Crash

Páid wrote: »

You only quoted a fraction of what I said and missed the important point.

The Minister has not gone outside his powers. He has signed two SI's that do not go as far as the Act allows him to.

That Act was signed into law decades ago.

I only quoted a fraction to keep the size of post down.

It doesn’t matter when the act you refer to was signed into law, to date it’s not been tested in the courts. It can pretty much say whatever it likes and it’s the supreme courts job to make decisions as to its constitutionality! To date no ones brought it there because we’ve never had a need!

As mentioned by another poster, there are genuine questions to be asked about these restrictions infringing on articles 15 and 40 of the constitution and I’m of the belief that they will be heard by the Supreme Court at some point!

I stress I’m not saying they are or aren’t, just that the question is a legitimate one

Juicee

Weston Echoing Ivy wrote: »

I'd be inclined to agree. Whatcan happen it will be over by the time the court comes up. Can people claim compensation for being prevented free movement

If there are subsequent waves later in the year as some have predicted, the court challenge may have happened in the interim. If found unconstitutional, it seems to me there could indeed be retrospective legal action and of course future lockdowns could not be enforced in the same way as currently

ectoraige

Juicee wrote: »

Also, (slightly off topic), why should those who have been willingly vaccinated fear the unvaccinated? surely their vaccines should protect them from being infected by the unvaccinated?

Just to give an answer on that, vaccinations are rarely 100% effective, so a small percentage of people who have received vaccinations may still not have immunity. They rely on being surrounded by people for whom the vaccination was effective.

Páid

Captain_Crash wrote: »

I only quoted a fraction to keep the size of post down.

It doesn’t matter when the act you refer to was signed into law, to date it’s not been tested in the courts. It can pretty much say whatever it likes and it’s the supreme courts job to make decisions as to its constitutionality! To date no ones brought it there because we’ve never had a need!

As mentioned by another poster, there are genuine questions to be asked about these restrictions infringing on articles 15 and 40 of the constitution and I’m of the belief that they will be heard by the Supreme Court at some point!

I stress I’m not saying they are or aren’t, just that the question is a legitimate one

I agree that the question is a legitimate one.

An Act cannot pretty much say what it likes. It goes through numerous stages before it goes to the President to be signed who may or may not refuse to sign it or refer it elsewhere if s/he believes it to be unconstitutional.

I understand now why there Gardaí were given those powers under the second S.I.

"The State may only breach your right to personal liberty in circumstances that come within a law that provides for your arrest and/or detention."

If they Gardaí were not given the power to arrest and the S.I. did not provide for a custodial sentence then personal liberty could not be affected.

I don't see how it's unconstitutional but then again I'm not an expert.