Why no coherent legal challenge to restrictions?

political analyst

In Britain, the businessman Simon Dolan has challenged Covid restrictions in the courts. In the Australian state of Victoria, there have been several cases taken against restrictions.

So why has there been no coherent legal challenge to restrictions in Ireland? There must be people who have enough money for such a case and who would be able to make better arguments than Waters and O'Doherty did.

Sunetra Gupta might be willing to give evidence via video-link to support such a case here.

After all, either we have constitutional rights or we don't.

Rodin

political analyst wrote: »

In Britain, the businessman Simon Dolan has challenged Covid restrictions in the courts. In the Australian state of Victoria, there have been several cases taken against restrictions.

So why has there been no coherent legal challenge to restrictions in Ireland? There must be people who have enough money for such a case and who would be able to make better arguments than Waters and O'Doherty did.

Sunetra Gupta might be willing to give evidence via video-link to support such a case here.

After all, either we have constitutional rights or we don't.

Which article of the constitution do you feel is being violated?

political analyst

Rodin wrote: »

Which article of the constitution do you feel is being violated?

I'm not a lawyer. But I'm sure that any solicitor who is asked about a possible legal challenge to restrictions would find some grounds for such a case.

seamus

There is, in general, no conflict between the Irish constitution and the restrictions. Contrary to popular belief, consitutional rights are not absolute rights. They can be limited by law as necessary for the public good. After all, you have the right to freedom, except when you're in jail.

Where certain measures are enacted temporarily during a crisis, this is allowed and supported by the constitution provided that the measures are proportionate and necessary.

E.g. instituting martial law or jailing people without trial would not be consitutional even in a public health emergency, but restricting them to certain activities and locations, is.

Gregor Samsa

political analyst wrote: »

I'm not a lawyer. But I'm sure that any solicitor who is asked about a possible legal challenge to restrictions would find some grounds for such a case.

This doesn't sound like the beginning of a coherent legal challenge to the restrictions anyway.

Russman

Is this a case of you not liking the restrictions and they're an awful inconvenience, so therefore your rights have to be infringed ?

Nobody likes them and they are indeed an awful inconvenience, but I think/assume the AG will have vetted the legislation.

Gregor Samsa

Not all the restrictions are actually law at all. Some are just guidelines that we are being encouraged to follow - there's no legal or constitutional implications in those cases.

Here's a breakdown of what's currently backed up by legislation and what's not:

https://www.irishtimes.com/news/crime-and-law/policing-covid-19-what-enforcement-powers-do-garda%C3%AD-have-1.4359618

Beanybabog

Ryanair took a Judicial Review of the travel advice which they lost. I was surprised given the “mandatory” nature of the quarantine for civil servants but the judge commented he didn’t deal with all those issues. I imagine if someone took a case about having to take annual unpaid leave for 2 weeks for not following advice that’s not mandatory they’d have a good case.

I recall reading a restaurant / hotel group was issued proceedings against level three restrictions recently.

I suspected if the government tried to implement penal measures, as they claimed they would, enforcing visitor limits in people’s home a case would have been taken. But they rowed back on that pretty fast.

Constitutional rights aren’t absolute but any limitations should to be proportionate and with a clear aim. The government have issued a lot of advice dressed up as mandatory rules to avoid having to legislate on very tricky issues. If they attempted to make all the guidelines law with penalties I’m sure we’d see some more cases.

Odoherty and waters ruined it for all of us in my opinion. By bringing such an ill prepared case, and being who they are, people are almost afraid to question the measures because they don’t want to align themselves with the lunatic fringe. Which is a great loss for all of us... no matter what your opinion on restrictions is, a legal challenge benefits us all because we know the correct checks and balances are there.

canonball5

I'm amazed nobody has taken a legal challenge against these restrictions under Article 40 of the Constitution.

Gregor Samsa

canonball5 wrote: »

I'm amazed nobody has taken a legal challenge against these restrictions under Article 40 of the Constitution.

Under which specific section?

For instance, 40.6.1 ii guarantees

"The right of the citizens to assemble peaceably and without arms.".

Which on the face of it, would prevent a law from restricting public gatherings of any kind.

But it then goes on to say:

"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"

The allowance of those provisions to prevent or restrict public gatherings seem broad enough to allow for legislation to do so in the case of a public health crisis like this.

political analyst

Beanybabog wrote: »

Ryanair took a Judicial Review of the travel advice which they lost. I was surprised given the “mandatory” nature of the quarantine for civil servants but the judge commented he didn’t deal with all those issues. I imagine if someone took a case about having to take annual unpaid leave for 2 weeks for not following advice that’s not mandatory they’d have a good case.

I recall reading a restaurant / hotel group was issued proceedings against level three restrictions recently.

I suspected if the government tried to implement penal measures, as they claimed they would, enforcing visitor limits in people’s home a case would have been taken. But they rowed back on that pretty fast.

Constitutional rights aren’t absolute but any limitations should to be proportionate and with a clear aim. The government have issued a lot of advice dressed up as mandatory rules to avoid having to legislate on very tricky issues. If they attempted to make all the guidelines law with penalties I’m sure we’d see some more cases.

Odoherty and waters ruined it for all of us in my opinion. By bringing such an ill prepared case, and being who they are, people are almost afraid to question the measures because they don’t want to align themselves with the lunatic fringe. Which is a great loss for all of us... no matter what your opinion on restrictions is, a legal challenge benefits us all because we know the correct checks and balances are there.

If your livelihood was in peril because of a lockdown then being accused of aligning yourself with those lunatics would be the least of your concerns. If you win the case then nothing else matters. Either you win or you lose.

canonball5

Gregor Samsa wrote: »

Under which specific section?

Article 40.1 when they started locking down counties for example.

Article 40.6.1 (ii) the right to assemble and meet peacefully.

Article 40.4.1

banie01

canonball5 wrote: »

I'm amazed nobody has taken a legal challenge against these restrictions under Article 40 of the Constitution.

Article 28.3.3 would be the likely defence against any such case.
There is a broad political and scientific consensus that we are in an emergency. Whilst pandemic may not be the nature of the existential threat to the state originally envisioned.
It nevertheless provides the state with a broad slate to suspend protections.

Interesting article here on the state of play.

Gregor Samsa

canonball5 wrote: »

Article 40.1 when they started locking down counties for example.

Article 40.6.1 (ii) the right to assemble and meet peacefully.

Article 40.4.1

Sorry, I edited and expanded my response before you replied.

See my post above regarding 40.6.1 (ii). It allows for the legal restriction of assembly under a fairly broad set of criteria.

As for 40.4.1, it states

"No citizen shall be deprived of his personal liberty save in accordance with law."

Which explicitly means that laws can be passed to restrict citizens of their liberty. As mentioned above, under the Constitution, liberty is not an absolute right.

canonball5

banie01 wrote: »

Article 28.3.3 would be the likely defence against any such case.
There is a broad political and scientific consensus that we are in an emergency. Whilst pandemic may not be the nature of the existential threat to the state originally envisioned.
It nevertheless provides the state with a broad slate to suspend protections.

Interesting article here on the state of play.

That's an interesting point but I really don't see how that argument would stand up. It would really come down to your understanding of a national emergency. More men died of suicide this week than have died of Covid in the same time period.

Heebie

political analyst wrote:

So why has there been no coherent legal challenge to restrictions in Ireland? There must be people who have enough money for such a case and who would be able to make better arguments than Waters and O'Doherty did.

I would think because we don't have anyone who has enough money to mount such a challenge... and is simultaneously stupid enough to think that the restrictions are unnecessary.

Restrictions are being put in-place to save people's lives, full stop. The only people who are "against" these restrictions are ignorant idiots who should be ignored and shunned, rich people who want non-rich people to risk their lives making money for the rich, and sheep ignorant enough to follow either or both the first two groups.

If you're not the rich guy, you're shooting yourself in the foot. If you are the rich guy, you're shooting everyone else in the face.

Borderfox

Its mandatory but not compulsory ;-)

seamus

Beanybabog wrote: »

Odoherty and waters ruined it for all of us in my opinion. By bringing such an ill prepared case, and being who they are, people are almost afraid to question the measures because they don’t want to align themselves with the lunatic fringe.

Not at all. Any legal professional who thought there was a coherent case to answer would take it on. Reputation is important, but only insofar as they don't take on ridiculous cases.

The GoFundMe linked above is a grifter who has no ability to take any case on, she's been conning people out of money for months.

Eduard Khil

The fact that the three parties in control currently ignored advice to go to a higher level of restrictions recently but have now gone to the highest level country wide but are also tailoring it begs the question of what options remain now if these measures fail.

ArthurDayne

seamus wrote: »

There is, in general, no conflict between the Irish constitution and the restrictions. Contrary to popular belief, consitutional rights are not absolute rights. They can be limited by law as necessary for the public good. After all, you have the right to freedom, except when you're in jail.

Where certain measures are enacted temporarily during a crisis, this is allowed and supported by the constitution provided that the measures are proportionate and necessary.

E.g. instituting martial law or jailing people without trial would not be consitutional even in a public health emergency, but restricting them to certain activities and locations, is.

There are other nuances to take into account though on this. Even if crisis powers are invoked in a situation that the courts would agree is a crisis, the nature of their implementation can still be open to challenge.

I would say one potential grounds for constitutional challenge (and it is one that has been raised by several legal academics, the Law Society of Ireland, FLAC and the Irish Council for Civil Liberties) would be the manner in which restrictions were communicated to the public — i.e. the portrayal of mere guidelines as being law.

For the rule of law to be meaningful, there must be high degrees of clarity for citizens as to what is prescribed by law and what is not. Throughout the pandemic, there has been widespread uncertainty as to what measures are actually legally binding (or enforceable by An Garda Síochána), how they apply in different scenarios, and the consistency of rationale behind that application. Travel for example was one particular area where confusion reigned — whereby quarantining was presented in a manner that made it look like a legal obligation. The recent guidelines on not leaving Dublin, backed up by checkpoints manned by Garda with no enforcement power, are another example.

There is a suspicion, and I must say I personally find it a compelling one, that the government deliberately flirted with a strategy of confusing Irish citizens on their civil liberties in an attempt to maximise compliance. Regardless of what one thinks about the effectiveness of that tactic, it is still problematic from a constitutional standpoint. As Prof. David Kenny of TCD neatly puts it:

“uch a strategy raises serious rule of law concerns, and has real costs. It confuses members of the public; erodes public trust in communication about the law; and is an abuse of State power, implying a legal threat that does not exist”.

banie01

canonball5 wrote: »

It would really come down to your understanding of a national emergency.

No, not my understanding. The actions of the Oireachtas in declaring it as such.
It would be for any challenging party to refute the basis of the Oireachtas' actions.

They would need to disprove the scientific consensus.
Disprove the perceived/Stated risk to Public Health and then present a case that proves the Government overstepped the constitutional provisions of their emergency powers.

We are beyond mere opinion, we are dealing with consensus.
Whilst there are opinions that differ on the actions available, alternative and safe plans represent options that are not timely or immediate.
Any successful challenge will be predicated on meeting and refuting all of the above.

canonball5

Gregor Samsa wrote: »

Sorry, I edited and expanded my response before you replied.

See my post above regarding 40.6.1 (ii). It allows for the legal restriction of assembly under a fairly broad set of criteria.

As for 40.4.1, it states

"No citizen shall be deprived of his personal liberty save in accordance with law."

Which explicitly means that laws can be passed to restrict citizens of their liberty. As mentioned above, under the Constitution, liberty is not an absolute right.

I believe the wording of Constitution was expressed that way as to refer to arrests or warrants etc. I don't think it was as away to control and manipulate people. Either way, you points are interesting and food for thought.

banie01

canonball5 wrote: »

I believe the wording of Constitution was expressed that way as to refer to arrests or warrants etc. I don't think it was as away to control and manipulate people. Either way, you points are interesting and food for thought.

No article of the Constitution stands alone nor should they be read or interpreted in isolation from the entirety of the text.

The suspension of rights is prerogative power granted to the Oireachtas in times of emergency and the provisions of Article 28 when invoked directly and lawfully impinge on the rights both enumerated and unenumerated.

CalamariFritti

seamus wrote: »

There is, in general, no conflict between the Irish constitution and the restrictions. Contrary to popular belief, consitutional rights are not absolute rights. They can be limited by law as necessary for the public good. After all, you have the right to freedom, except when you're in jail.

Where certain measures are enacted temporarily during a crisis, this is allowed and supported by the constitution provided that the measures are proportionate and necessary.

E.g. instituting martial law or jailing people without trial would not be consitutional even in a public health emergency, but restricting them to certain activities and locations, is.

I dont know the constitution tbh. But if anything the bold part is where something may lead to. So far few if any of the restrictions have had any scientific evidence behind them but were mostly shots in the dark. My personal opinion is that this isn't good enough where such far reaching restrictions are concerned. We all agree there is a threat but the way it has been handled could set a dangerous precedent where we can all get locked up on whim basically. Some may argue that is already after happening.

trixi001

Heebie wrote: »

I would think because we don't have anyone who has enough money to mount such a challenge... and is simultaneously stupid enough to think that the restrictions are unnecessary.

Restrictions are being put in-place to save people's lives, full stop. The only people who are "against" these restrictions are ignorant idiots who should be ignored and shunned, rich people who want non-rich people to risk their lives making money for the rich, and sheep ignorant enough to follow either or both the first two groups.

If you're not the rich guy, you're shooting yourself in the foot. If you are the rich guy, you're shooting everyone else in the face.

I think you will find lots of people are against them - and not necessarily for the reasons you mentioned

People who have lost loved ones to suicide due to the restrictions
People who have serious mental health issues either due to or exacerbated by the restrictions
People who can't speed time with loved ones in hospital or care homes - especially as the time left to spend with these ones is often extremely limited
People who have lost their livelihood due to the restrictions
People who live alone - often with most of their family abroad where they aren't allowed to visit
People who need the swimming pools/gym - swimming is often part of rehabilitation following injury/surgery etc
New Parents - fathers not being able to spend any (extremely minimal) time with their new child
People who have lost or will lose their homes due to not being able to work
Cross Border workers - who despite working full time in the south and paying taxes in the South, but who live in the North - aren't entitled to PUP

I once read that 10% of people over 80 die annually, so as its looking likely that these restrictions that this 10% will have spent there last year not surrounded by their nearest and dearest.

I once read that it was decided by a court that only war constitutes an emergency in terms of the constitution - so this is not a period of emergency, and the "normal" rights under the constitution remain. (Not sure of the source of this though)

It is worrying that people are willing to give away their rights without even questioning it. I am not saying the restrictions are right or wrong, just that questioning them is ok.

My major issue with the restrictions is the 5k limit - its unnecessary and imo discriminatory to rural dwellers - city/town dwellers often have friends and families withing the 5km, so can still meet them outside and keep up spirits and therefore not find this so difficult - rural areas not so much, there is still plenty plenty of places which barely even have another house within 5km!

Gregor Samsa

ArthurDayne wrote: »

I would say one potential grounds for constitutional challenge (and it is one that has been raised by several legal academics, the Law Society of Ireland, FLAC and the Irish Council for Civil Liberties) would be the manner in which restrictions were communicated to the public — i.e. the portrayal of mere guidelines as being law.

I fully agree with you that this communication has been very poor and confusing.

But I'm not sure that it would be grounds for a Constitutional challenge. By their very nature, those guidelines aren't backed up by legislation. Therefore there's no law to bring a Constitutional challenge against. Not every utterance from the Government has to be backed up by legislation, and there's nothing in the Constitution that prohibits guidelines from being issued. It's not like you could bring a Constitutional challenge against the Food Pyramid or the guideline regarding 30 minutes of moderate physical activity a day.

If the Government had actually specifically claimed that attending a family gathering in a house was unlawful when it isn't, then there would be grounds to challenge the claim that it is law - but not the guideline itself. I don't think the Government actually went as far as to make claims like that, but even if they did, the best you could hope for is to force them to clarify the legal situation, not to withdraw the guideline itself.

Gregor Samsa

trixi001 wrote: »

It is worrying that people are willing to give away their rights without even questioning it. I am not saying the restrictions are right or wrong, just that questioning them is ok.

I'm not sure why you think that people aren't questioning it. It's been one of the major topics of conversation amongst people, and dominated the media, for the past 7 months. You said yourself a lot of people are against them. That doesn't mean the people that are for them haven't questioned them.

One shouldn't confuse questioning with dissent. It's quite possible to assess the situation, weigh up both sides of the argument, and come to the conclusion that the restrictions are justified.

tHE vAGGABOND

A dad of one of my kids mates is a senior council top legal person [pardon me for not really giving a **** what the offical title is!], and he said the case the two muppets brought against the last lockdown had serious merit and was pretty spot on [according to the law as it stands; rather than emotion or opinion]. He was of opinion [in a playground, not in his work to be fair] - that a serious legal person would have won...

But as he said, the law can change and if motivated, the government could change it today [and maybe they have since then already]

seannash

canonball5 wrote: »

That's an interesting point but I really don't see how that argument would stand up. It would really come down to your understanding of a national emergency. More men died of suicide this week than have died of Covid in the same time period.

Have you stats to back up the suicide claim.
Last year 421 people died of suicide.
I know there is a feeling that suicide has gone through the roof since Covid but do we have any stats to back this up.

trixi001

Gregor Samsa wrote: »

I'm not sure why you think that people aren't questioning it. It's been one of the major topics of conversation amongst people, and dominated the media, for the past 7 months. You said yourself a lot of people are against them. That doesn't mean the people that are for them haven't questioned them.

One shouldn't confuse questioning with dissent. It's quite possible to assess the situation, weigh up both sides of the argument, and come to the conclusion that the restrictions are justified.

Granted - but a lot of people i have talked too, have not even considered the other side - they accept the restrictions without question, and don't even consider that the restrictions have massive negative affects.

Its almost like a religion - blind faith!

seannash

trixi001 wrote: »

Granted - but a lot of people i have talked too, have not even considered the other side - they accept the restrictions without question, and don't even consider that the restrictions have massive negative affects.

Its almost like a religion - blind faith!

Give us your plan.
And to add whatever your plan is we are allowed to tell you its ridiculous and doesn't work just like people are allowed to say tha about the government plan.
Sometimes what you call blind faith is people listening to expert opinions, The news, reading online and making a decision based on that. Just because they might not entertain your interpretation doesn't mean they are blindly following. Perhaps they know you just wont accept their conclusion so they don't debate you.

ArthurDayne

Gregor Samsa wrote: »

I fully agree with you that this communication has been very poor and confusing.

But I'm not sure that it would be grounds for a Constitutional challenge. By their very nature, those guidelines aren't backed up by legislation. Therefore there's no law to bring a Constitutional challenge against. Not every utterance from the Government has to be backed up by legislation, and there's nothing in the Constitution that prohibits guidelines from being issued. It's not like you could bring a Constitutional challenge against the Food Pyramid or the guideline regarding 30 minutes of moderate physical activity a day.

If the Government had actually specifically claimed that attending a family gathering in a house was unlawful when it isn't, then there would be grounds to challenge the claim that it is law - but not the guideline itself. I don't think the Government actually went as far as to make claims like that, but even if they did, the best you could hope for is to force them to clarify the legal situation, not to withdraw the guideline itself.

Yes, though there haven’t been Garda checkpoints set up to ask citizens whether they have done their 30 minutes of exercise that day. I don’t think it’s a particularly valid comparison, as the gravity afforded to government messaging around 14 day quarantine limits, travel outside certain zones, cocooning etc during the pandemic has infinitely outweighed simple everyday messaging on healthy lifestyles etc. It’s not the “mere utterances” that are the problem, but the potentially deliberate deception as to what is legal and what is not. It is a requirement under Irish law, EU law and the European Convention on Human Rights that there is certainty as to the nature of obligations placed on citizens. If the government considers measures to be so important, and communicates them in such a way as to be mandatory, then they need to be on satisfactory legal footing so that citizens understand what their obligations are.

I mean, it’s perfectly obvious to citizens that 30 mins exercise is not a legal requirement — but I think it’s a stretch to pretend that there was not at least some degree of assertion (and with that, widespread perception) that there was legal weight behind the guidelines. There is evidence to suggest that there was a deliberate nature to that. There has been much criticism in legal circles of the delays in publishing the content of regulations even after they come into effect, which does reek of a deliberate ploy to confuse. I work in a law firm myself and with all our resources and know-how on quickly finding legal material it still took digging by trainees to actually dredge up the regulations, which were often difficult to locate (again, after coming into effect). In fact, the government never even declared a constitutional state of emergency as this power can only be exercised in war or rebellion. Instead, legislation which was merely described as emergency legislation was introduced — but this legislation has no special status.

There are certainly grounds for legal challenge under the established law on clarity of legal obligations. In fact, the Special Committee on Covid 19 Response has heard evidence on from senior legal figures and there was plenty of food for thought on the legality / constitutionality of the State’s approach. From my own personal critical opinion, my two questions are: (1) did the State deliberately blur the lines on legality to confuse people into compliance?; and (2) if the State saw the guidelines as being so fundamentally important for public health, why were they not given legal footing?

Billgirlylegs

Gregor Samsa wrote: »

Under which specific section?

For instance, 40.6.1 ii guarantees

"The right of the citizens to assemble peaceably and without arms.".

Which on the face of it, would prevent a law from restricting public gatherings of any kind.

But it then goes on to say:

"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"

The allowance of those provisions to prevent or restrict public gatherings seem broad enough to allow for legislation to do so in the case of a public health crisis like this.

It's pretty thin ice.
If a group of people, who profess and identify themselves to be Covid positive, meet to demonstrate that it's harmless to catch it, that could certainly be argued to fall into the danger aspect of the legislation.

It's a bit of a stretch to argue that a group of people meeting in a public place is a danger to the general public.
Might increase the risk of someone catching it, but putting that person in danger?

political analyst

ArthurDayne wrote: »

Yes, though there haven’t been Garda checkpoints set up to ask citizens whether they have done their 30 minutes of exercise that day. I don’t think it’s a particularly valid comparison, as the gravity afforded to government messaging around 14 day quarantine limits, travel outside certain zones, cocooning etc during the pandemic has infinitely outweighed simple everyday messaging on healthy lifestyles etc. It’s not the “mere utterances” that are the problem, but the potentially deliberate deception as to what is legal and what is not. It is a requirement under Irish law, EU law and the European Convention on Human Rights that there is certainty as to the nature of obligations placed on citizens. If the government considers measures to be so important, and communicates them in such a way as to be mandatory, then they need to be on satisfactory legal footing so that citizens understand what their obligations are.

I mean, it’s perfectly obvious to citizens that 30 mins exercise is not a legal requirement — but I think it’s a stretch to pretend that there was not at least some degree of assertion (and with that, widespread perception) that there was legal weight behind the guidelines. There is evidence to suggest that there was a deliberate nature to that. There has been much criticism in legal circles of the delays in publishing the content of regulations even after they come into effect, which does reek of a deliberate ploy to confuse. I work in a law firm myself and with all our resources and know-how on quickly finding legal material it still took digging by trainees to actually dredge up the regulations, which were often difficult to locate (again, after coming into effect). In fact, the government never even declared a constitutional state of emergency as this power can only be exercised in war or rebellion. Instead, legislation which was merely described as emergency legislation was introduced — but this legislation has no special status.

There are certainly grounds for legal challenge under the established law on clarity of legal obligations. In fact, the Special Committee on Covid 19 Response has heard evidence on from senior legal figures and there was plenty of food for thought on the legality / constitutionality of the State’s approach. From my own personal critical opinion, my two questions are: (1) did the State deliberately blur the lines on legality to confuse people into compliance?; and (2) if the State saw the guidelines as being so fundamentally important for public health, why were they not given legal footing?

The guidelines never included a limit on the number of times people could go outside for exercise anyway.

trixi001

seannash wrote: »

Give us your plan.
And to add whatever your plan is we are allowed to tell you its ridiculous and doesn't work just like people are allowed to say tha about the government plan.
Sometimes what you call blind faith is people listening to expert opinions, The news, reading online and making a decision based on that. Just because they might not entertain your interpretation doesn't mean they are blindly following. Perhaps they know you just wont accept their conclusion so they don't debate you.

I would stagger a guess than half the county haven't even thought to question the rights they are giving up - they understand the restrictions and accept them as expert advice etc, but have't thought how they affect constitutional and human rights.


People like yourself, obviously have but a lot haven't.

Personally, i see no point in the current restrictions while schools are still open - lots of kids travelling 20km to school, and mixing etc. If we have to have a lockdown, do it properly - close the schools, or at least put additional measures place - staggered attendance, mix of online & classroom. Maximum numbers on school transport.

I think the Welsh plan is a lot better in that regard, primary schools stay open as a much smaller catchment area, and high schools close.

I would not have any restriction on the travel just have a list of things people are allowed to do - if you can go to the golf course if its within 5km, why is it suddenly more dangerous if its 6km away?
Personally I think the travel restriction is what causes the most anxiety among people - as it makes many people isolated, and worried about family they haven't seen in months!

I also think we should have a public emergency team that makes the recommendations and considers wider issues and not just a health public emergency team.

Naos

canonball5 wrote: »

Article 40.1 when they started locking down counties for example.

Article 40.6.1 (ii) the right to assemble and meet peacefully.

Article 40.4.1

Why did you only include one line of 40.6.1 (ii)

You excluded:

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.

LuckyLloyd

Seems you may have a constitutional loophole about the fact the guidelines haven't been made into legal statute. So you might go to court and win that case after a few weeks and great expense. And then the government will just roll it through as legislation and make it law.

The Government would clearly rather not make it law, and I think we can all understand why. But if they're forced to they will.

Gregor Samsa

Billgirlylegs wrote: »

It's a bit of a stretch to argue that a group of people meeting in a public place is a danger to the general public.
Might increase the risk of someone catching it, but putting that person in danger?

Not sure everyone would agree with you on that one. I don't think it would be difficult to argue that increasing the risk of spreading it is a danger to the general public. To cause "danger" just means to potentially cause harm - it's a matter of increased risk rather than necessarily causing actual damage. It doesn't have to mean certain death is caused.

In any case, "danger" is only one criteria. Mere "nuisance to the general public" is also grounds to prevent or control such meetings. Rather than it being a stretch, it's pretty broad.

ArthurDayne

LuckyLloyd wrote: »

Seems you may have a constitutional loophole about the fact the guidelines haven't been made into legal statute. So you might go to court and win that case after a few weeks and great expense. And then the government will just roll it through as legislation and make it law.

The Government would clearly rather not make it law, and I think we can all understand why. But if they're forced to they will.

But the question remains why they don’t just do that anyway. If the State believes that certain measures are so vital and of such fundamental significance to the national interest (to the point of being a matter of life and death) that they portray them as mandatory or at least obfuscate the matter — then why don’t they give them the appropriate legal footing?

It’s not a “constitutional loophole” to point out that presenting certain things as being mandatory when they are not amounts to the State effectively threatening citizens with legal implications that do not exist. It is a straight-up abuse of power — an attempt to use the gravitas of the State’s authority as a means of creating pseudo-law. It’s contrary to human rights and as time goes on (which we are seeing a lot of today!) it makes people question the integrity of the measures themselves and therefore erodes their willingness to take them seriously.

It’s actually an argument which transcends the restrictions debate because both sides should have valid grievances. The pro-lockdown leaning folk should be against the pseudo-enforcement of what they perceive to be absolutely vital Life & Death measures, while the anti-lockdown leaning folk have a legitimate question as to how reasonable the measures are when the State appears to only be pretending to implement them!

gozunda

political analyst wrote: »

In Britain, the businessman Simon Dolan has challenged Covid restrictions in the courts. In the Australian state of Victoria, there have been several cases taken against restrictions.

So why has there been no coherent legal challenge to restrictions in Ireland? There must be people who have enough money for such a case and who would be able to make better arguments than Waters and O'Doherty did.

Sunetra Gupta might be willing to give evidence via video-link to support such a case here.

After all, either we have constitutional rights or we don't.

Possibly because Gemma O’Doherty and John Waters were left facing a significant legal bill after the High Court ruled they must pay the costs of their failed attempt to challenge laws brought in due to Covid-19.

https://www.irishtimes.com/news/crime-and-law/courts/high-court/o-doherty-and-waters-ordered-to-pay-legal-costs-of-case-against-state-over-covid-19-laws-1.4270600

That case also tested the waters and potentially could be used as a judgement in any other challenge taken

I also don't believe any such case will be successful or is a particularly good idea

seannash

trixi001 wrote: »

I would stagger a guess than half the county haven't even thought to question the rights they are giving up - they understand the restrictions and accept them as expert advice etc, but have't thought how they affect constitutional and human rights.


People like yourself, obviously have but a lot haven't.

Personally, i see no point in the current restrictions while schools are still open - lots of kids travelling 20km to school, and mixing etc. If we have to have a lockdown, do it properly - close the schools, or at least put additional measures place - staggered attendance, mix of online & classroom. Maximum numbers on school transport.

I think the Welsh plan is a lot better in that regard, primary schools stay open as a much smaller catchment area, and high schools close.

I would not have any restriction on the travel just have a list of things people are allowed to do - if you can go to the golf course if its within 5km, why is it suddenly more dangerous if its 6km away?
Personally I think the travel restriction is what causes the most anxiety among people - as it makes many people isolated, and worried about family they haven't seen in months!

I also think we should have a public emergency team that makes the recommendations and considers wider issues and not just a health public emergency team.

To be honest I want a total and complete lockdown of everything but to your point on why is 6km more dangerous, we all know its not. They had to pick a number. If they said 10 people would say why not 11. People need a rule book to follow so they can operate. Its not good enough to say restrict your movements as much as possible.
Again someone silently coming to the conclusion to go with the recommendations doesn't mean they are following it blindly. experts have advised and the government have decided to go with msot of their recommendations.

I think you probably know this.
Schools opening on staggered times well why is that any different to your 6 km question. If my kid can safely go in on Tuesdays why not Wednesday and Thursday also

As for the rights, I'd like a list of rights we have given up.


Your public emergency team, would they be able to weigh up the economic,social,environmental implications of these restrictions. If so surely this is what the government is doing anyway.

You want tighter restrictions so why do you have a problem with any restrictions they have decided to put in place. Any restriction is better than none but you seem to want the perfect restrictions for you and your reality.

Gregor Samsa

gozunda wrote: »

That case also tested the waters and potentially could be used as a judgement in any other challenge taken

I doubt that any precedent was set by two loons ranting. Their case was prevented from reaching a full hearing in front of the High Court because they didn't even attempt to form an actual case, didn't attempt to present any expert opinion, didn't engage with the court properly and just talked nonsense about Nazi Germany. They didn't even manage to get over the fairly modest hurdle of having a coherent argument for their case. Anybody who could do those basic things would at least get themselves in front of a proper HC sitting.

ArthurDayne

Gregor Samsa wrote: »

I doubt that any precedent was set by two loons ranting. Their case was prevented from reaching a full hearing in front of the High Court because they didn't even attempt to form a coherent case, didn't attempt to present any expert opinion, didn't engage with the court properly and just talked nonsense about Nazi Germany. They didn't even manage to get over the fairly modest hurdle of having a coherent argument for their case.

Can’t disagree with that. Probably the most damaging thing about their case though was the impression it created that questioning the legality / constitutionality / justice of the measures was an exercise for eccentrics and contrarians. It’s far from it and there are serious questions to be answered whether now or in a future inquiry.

is_that_so

political analyst wrote: »

In Britain, the businessman Simon Dolan has challenged Covid restrictions in the courts. In the Australian state of Victoria, there have been several cases taken against restrictions.

So why has there been no coherent legal challenge to restrictions in Ireland? There must be people who have enough money for such a case and who would be able to make better arguments than Waters and O'Doherty did.

Sunetra Gupta might be willing to give evidence via video-link to support such a case here.

After all, either we have constitutional rights or we don't.

They come from recent amendments to the 1947 Health Act, the Constitution is not involved. Those amendments were approved by the Dail.

trixi001

seannash wrote: »

To be honest I want a total and complete lockdown of everything but to your point on why is 6km more dangerous, we all know its not. They had to pick a number. If they said 10 people would say why not 11. People need a rule book to follow so they can operate. Its not good enough to say restrict your movements as much as possible.
Again someone silently coming to the conclusion to go with the recommendations doesn't mean they are following it blindly. experts have advised and the government have decided to go with msot of their recommendations.

I think you probably know this.
Schools opening on staggered times well why is that any different to your 6 km question. If my kid can safely go in on Tuesdays why not Wednesday and Thursday also

As for the rights, I'd like a list of rights we have given up.


Your public emergency team, would they be able to weigh up the economic,social,environmental implications of these restrictions. If so surely this is what the government is doing anyway.

You want tighter restrictions so why do you have a problem with any restrictions they have decided to put in place. Any restriction is better than none but you seem to want the perfect restrictions for you and your reality.

I don't want tighter restrictions - i don't want mandatory restrictions at all in fact, but if they are going to insist of having restrictions at least have ones that will work and lower the case numbers properly, so that they are for as short as time as possible. The restrictions simply don't make sense with schools open.

And yes Staggered attendance would still mean kids attend school - but you would have less children in each classroom, less on the bus etc, and therefore more social distancing.

So it is no more dangerous to at 6km than 5km - so why 5km then? It should be enough to say restrict your movements, that you can do x,y or z only. The lockdown in the North never had distance limits, just a complete ban on non essential travel.

The Public emergency team would indeed look at social, economical, environmental, and of course health - yes the government do consider these - but the government are a group of elected representatives, they aren't experts, a public emergency team should be made up of experts across a range of areas, not just health
The government take health advice from health experts, but who do they take economic, education, social advice from - eg? is there an expert economic team that decides on or recommends the PUP payments, stimulus measures, etc?

As for what rights we have given up, i am sure there are plenty of people more knowledgeable than me but from a quick google the below rights listed in the constitution are at least partially affected by the new restrictions

Freedom to Travel
Freedom to earn a living
Right to Consort together for married couples (If they happen not to live together for whatever reason)
Freedom of Assembly

speckle

https://metro.co.uk/2020/10/16/court-overturns-order-to-shut-bars-and-restaurants-in-berlin-at-11pm-13432566/amp/?__twitter_impression=true
Court overules german government on restrictions

speckle

I beieve and the WHO organisation also,that using lockdowns/restriction hits women, children the poor and the disabled worse.

For example women more effected regsrding work as they are in lower paid and zero hour contracts. And less able to work from home.
Also have noticed here on boards and elsewhere woman complaining this has adversely effected some of them to have children.

I also feel that disabled and vulnarable are being used as piggy in the middle and being discrimnated by and not given a voice.
If they or their familys were given an extra 350 euros a week many would be able to protect themselves and their familys bettet while those who are low risk work.
These people have had many of their services pulled with the closing of so many things. And will be the first impacted by a recession. Many who work in the mental health srea are seeing negative impact too.
Live a half live now and potentialy die anyway in what follows.
Also they are first in line for vaccines thst have on the vaste majority of cases only been tested on healthy people. I feel echos of history in this and hope I am wrong. We have the hoŕibke history here in ireland of testing on the poorest and childrens homes etc.
Maybe a case of discriminatiom or this response is adversely effecting dverse these people.
I find it criminally neglient the way the government have responded. They wrre put on notice by myself and others in jan and february and early march and still

nursing home deaths
lack of icu beds
contact tracing fiasco etc

If the good doctors for example had not gone against hse rules and tested the poor man who died in cork we would not have know we had community transmission either.
May he rest in peace and his family find solace one day.

As an ordinary citzen of Ireland and a high risker I hope somebody challenges them on the lack of data they have to offer for these blanket restrictions.

political analyst

is_that_so wrote: »

They come from recent amendments to the 1947 Health Act, the Constitution is not involved. Those amendments were approved by the Dail.

What makes you absolutely certain that not a single part of the 1947 Act is unconstitutional?

Thierry12

I'm amazed the likes of Penny's haven't went legal route to stay open

Don't understand it

How could it be proven its more dangerous than Tesco etc?

VillageIdiot71

is_that_so wrote: »

They come from recent amendments to the 1947 Health Act, the Constitution is not involved. Those amendments were approved by the Dail.

This has to be one of the most confused comments on the issue.

The 1947 Act allowed for a person with an infectious disease to be confined if they refused treatment. This was tested in a case, and found to be constitutional.

It most certainly did not provide for mass restrictions on persons who mostly don't have any infectious disease. Such a significant change in scope cannot be made immune from challenge simply by tacking on to an older Act.

And all Acts of the Oireachtas that have been found to be unconstitutional have been approved by the Dail. I don't know how you can think the Constitution is "not involved".

.

ShineOn7

A couple of big-ish Dublin gyms have said they're staying open and ignoring the restrictions

That didn't work out too well for that oul lad with a Pub down the country who announced similar in Lockdown 1. He was closed by the Guards the next day

It'll be interesting to see if more gyms follow suit and refuse to close

I think they'll win and stay open with extra restrictions tbh. The government can't deny how much of a positive influence they have on helping the country's mental health