New regulations signed by Simon Harris last night

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.

Juicee

ectoraige wrote: »

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.

It's also the case that some people suffer adverse reactions to vaccines ranging from minor injury, to severe, to death. But this is off topic here. Happy to discuss on another thread if you start one.

BaronVon

Any law passed by the Oireachtas is deemed lawful until proven otherwise. Bunreacht na hEireann is a bit of a mess, contradicts itself, and is largely not specific enough, resulting in judges in the 60's and 70's declaring unennummerated rights to fill the gaps.

The European Convention is a much better structured piece of legislation, and the ECtHR has routinely found in favour of States in their conduct, allowing a large margin of appreciation to those member States in the application of domestic law.

The 2km rule is for exercise only, but it seems to cause a lot of confusion. By international standards, it is quite generous.

With regards a Guards opinion, this occurs in a vast amount of legislation. It is only an offence to fail to obey the direction of a Guard, which is very similar to S8 of the Public Order Act.

Only the Supreme Court can tell us if these powers are unconstitutional, but the Courts regularly find in favour of the State, that laws to support the public good are a matter for the Oireachtas, and not a matter for the Courts.

My own opinion is that these laws would be found to be constitutional, that public policy has been brought in incrementally, and that they are proportionate to the threat faced by society as a whole.

Claw Hammer

Juicee wrote: »

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

Personal liberty generally means being kept in jail or similar. To construe it as meaning that you have liberty to go anywhere you want, at any time you want is misconceived.
in any event, no constitutional right is absolute and any right may have to yield to other rights from time to time.

Juicee

Claw Hammer wrote: »

Personal liberty generally means being kept in jail or similar.To construe it as meaning that you have liberty to go anywhere you want, at any time you want is misconceived

I disagree completely. Personal Liberty is not the equal of "the right not to be put in jail." No-one is construing that personal liberty means you can go anywhere either, such as trespassing on private property or airports, army bases etc.

Claw Hammer wrote: »

in any event, no constitutional right is absolute and any right may have to yield to other rights from time to time.

Again, I disagree strongly. Some rights are inalienable. Freedom is one of them.

cobhguy28

Claw Hammer wrote: »

Personal liberty generally means being kept in jail or similar. To construe it as meaning that you have liberty to go anywhere you want, at any time you want is misconceived.
in any event, no constitutional right is absolute and any right may have to yield to other rights from time to time.

I don't think the Act would fail, for its interference with certain constitutional rights, as there is justification for them and they seem proportionate.

However parts of the Act could be found to be an unconstitutional delegation of power, to the minister. It could fail the principle and policy test especially this section,

(i) any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19;

Carawaystick

I notice no link to the regs in the Iris Oifigiúil posted here yet...

Páid

Carawaystick wrote: »

I notice no link to the regs in the Iris Oifigiúil posted here yet...

They are at the link below 120 and 121 of 2020

http://www.irishstatutebook.ie/eli/statutory.html

GM228

Páid wrote: »

They are at the link below 120 and 121 of 2020

http://www.irishstatutebook.ie/eli/statutory.html

That's the ISB, not the Iris Oifigiúil, they are supposed to be "published" in the Iris Oifigiúil.

Carawaystick wrote: »

I notice no link to the regs in the Iris Oifigiúil posted here yet...

They were published in Friday's edition (number 29).

http://www.irisoifigiuil.ie/currentissues/Ir100420.pdf

Discodog

What would be the situation in the following scenario ?

The Act clearly states Horticulture as an Essential Service but doesn't define Horticulture. A gardener gets stopped & told that he can't work as it's not essential. Who defines Horticulture & what is or what isn't allowed ?

The accepted dictionary & academic definition would include every aspect of gardening.

Claw Hammer

Juicee wrote: »

I disagree completely. Personal Liberty is not the equal of "the right not to be put in jail." No-one is construing that personal liberty means you can go anywhere either, such as trespassing on private property or airports, army bases etc.


Again, I disagree strongly. Some rights are inalienable. Freedom is one of them.

The European Court of Human Rights has considered the concept of deprivation of liberty in the context of Article 5 of the Convention in a number of cases including, notably, Storck v Germany [2005] 43 EHRR 6, paras. 74, 89, and Stanev v Bulgaria [2012] 55 EHRR 22, paras. 117, 120. The essential characteristics of a deprivation of liberty within Article 5 appear from the jurisprudence to encompass three components: -

(i) the objective component of confinement in a restricted place for a non-negligible period of time;
(ii) the subjective component of lack of valid consent; and
(iii) the attribution of responsibility to the state.


Inalienable does not mean absolute and doesn't mean the right can't be limited. There is no right of freedom anyway. I notice you have produced no authority for your propositions so I must assume that whoever gave you their notes to cog left you a bit short.