The Health Pass in French Legislation

Dr Benedicte Sage Fuller

 

President Macron made a forceful declaration to the Nation on 12th of July 2021 concerning the Covid 19 vaccination programme. His declared goal was made clear: to push forward Covid 19 vaccination to the entire population, seemingly without any distinction of age. The President actually seems to want to “vaccinate the world”. His address sent shockwaves through the population, which until then had shown signs of reticence towards Covid 19 vaccination, particularly amongst women. It was claimed that shortly following the address, internet and phone lines to book a vaccination appointment were registering up to 20,000 bookings per minute. During the two weeks that followed, a new Bill was debated and adopted by Parliament, regarding the Health Pass. This happened in a context of erupting discontent, with daily demonstrations on the streets from 14th July, and carrying on since. People are not demonstrating against the vaccine, but against the Health Pass. A poll published on 24th July shows that 35% of surveyed people support the protest, while 49% disagree with it. It is clearly not a small protest on the margins. The Health Pass polarises French society. The demonstrators claim that the Macron’s announcements, and the new Bill, will effectively be installing a system of apartheid in the country, that it will divide French society, that it will discriminate against and set aside those who, in conscience, do not want to obtain and use a Health Pass, or a vaccine.

 

The Bill was adopted on 25th July 2021, on second reading at the Assemblée nationale, by 156 Députés, 60 voting against and 14 abstaining. It is noteworthy that there are 577 elected representatives at this Assembly, and therefore that 347 were missing for a Bill of this magnitude. This should be seen in the context of a record abstention rate of more than 65% at the last elections in early June, a sign a deep disconnect between French citizens and the political class. Within Parliament also, there are signs of evident tension and anger, for example as experienced by Senators during the vote of the Bill, who reported on the Senate public channel having been  put under pressure to pass the Bill “with a gun on their heads”, and being deprived of the opportunity to scrutinise it in detail.

Already, a number of constitutional experts from French universities (Assas-Paris I, Université de Grenoble, Université de Toulon, Université de Toulouse, HEC, Université de Créteil, Université de Clermont Auvergne, Université de St Etienne,  to mention a few) and practicing lawyers have raised very serious concerns about the constitutionality of the Law. The basic conditions of necessity, proportionality and appropriateness of measures restricting constitutional rights and freedoms are no respected. For Professeur Rousseau, there is a blatant and basic issue of excessive delegation of power to the Executive in a domain concerning public liberties which should  normally fall within  the legislative competence of article 34 of the Constitution. The constitutional right to work is threatened by the suspension of employment contracts for the non-vaccinated. The freedom to come and go is gravely affected by the forced detainment and isolation planned in the Law. There are also critical questions regarding the validity of the Law as regards fundamental freedoms and the principle of non-discrimination under EU Law.

The Défenseure des droits, Mrs Claire Hédon, French version of the Ombudsman, also published a report on 20th July, raising the alarm about several aspects of the Law. Mrs Hédon, like the senators, also criticises the Government for rushing the legislation, and not giving enough time to anyone to study it properly. She demands a proper and extended democratic debate. Her criticisms towards the Bill are detailed here. Of particular interest is her “alert”, in Point 6, raised regarding the rights of children, which will, according to her, be violated  by segregating the vaccinated against the non-vaccinated, and by excluding the non-vaccinated from a number of school-related activities (and which amounts, according to the Défenseure des droits,  to disguised compulsory vaccination)

The Bill was deferred to the Conseil constitutionnel, which b34a76d8-451d-4898-b5e0-78af3299cbebwill issue its judgement on 5th August.

Meanwhile, it is important to mention two judgments by the Conseil d’État dated Monday 26th July, on the contested legality of a Ministerial Decree of 21 July 2021, which extended to gatherings  of more than 50 persons the obligation to present the Health Pass. The highest administrative court did not deem the legality of the decree to be seriously in doubt, particularly in view of the fact that new legislation is about to be enacted, which would regularise the situation in any event. One should have serious reservations  about this argument, which is based on the presumption that potential future legislation would be sufficient to remedy a potential defect to a current regulation.

This   article merely presents and explains the Law just adopted by the French Parliament. Further constitutional analysis will be provided once the Conseil constitutionnel has rendered its decision.

Measures applicable to the public, users, customers and certain employees

Article 1 concerns:

  • Travel to or from French territory, for travellers and for personnel operating means of transport used to this effect (Article 1, III, A, 1): for all adults over 18.
  • Activities of: leisure, restauration (except collective, take-away, professional for hauliers and train drivers, or bars serving no food), fairs, seminars and professional conventions, health services (except for emergencies), long distance travel within French territory (Article 1, III, A, 2): for all persons aged over 12.

The persons to whom these provisions apply will have to produce either a negative test result, a certificate of vaccination or a medical certificate showing immunity following infection by Covid 19 and full recovery. In laymans terms, this means that anyone aged 12 or above will not be able to take a long distance train, to go to a restaurant (whether indoors or outdoors), go to the cinema, to a sporting event or a professional fair, attend training or any other leisure activity, unless they produce one of the three forms of Covid 19 certificates above mentioned. For minors aged 16 or above, they may be vaccinated without their parents’ consent, by express derogation to article 371-1 of the Civil Code on parental authority (Article 1, III, Fter A). Further, anyone aged 12 or above will not be able to access health services except for emergencies if they do not have such certificate. Looking at the black-letter law, this includes all programmed treatments and appointments: all chronic illnesses, cancers, counselling, etc. The Law provides only for the exception of “medical counter indication to vaccination”. What constitutes a medical counter indication to vaccination is determined by decree (Article 1, III, G).

From the moment the Law comes into force, article 1 will apply to the public and users, and from 15th September, it can be extended to employees. As regards travelling to and from French territory, the obligation applies to employees from the date of entry into force.

Article 1 also specifies that these obligations, when fulfilled, will not dispense from applying other measures to prevent the propagation of the virus. This means that even with the “ring-fencing” of people who are vaccinated or present proof of non-infection, social distancing and masks continue to be required for those people.

As regards employees or civil servants who are subject to these obligations under Article 1, the Law allows the suspension of their employment contract without pay until or unless they submit to vaccination. For those on temporary contracts, the Law allows the termination of such contract (article 1, III, C, 1 and 2).

For owners of businesses subject to this Law, the sanctions planned go from a temporary administrative closure of 24h, to one year imprisonment, 9,000€ fine and maximal administrative closure (article 1, III, D).

The Law outlines the procedure regulating the verification of the forms of Covid 19 certificates (Article 1, III, E). Persons habilitated  to ask for these certificates are not allowed  to use them for purposes other than those of that Law, and cannot keep them, except when they are employers and for the certificates of their employees. The sanction is 1 year imprisonment and 45,000€ fine. The same sanction applies to persons requiring the production of Covid 19 certificates outside of the circumstances of Article 1, III, A, described above.

Forced isolation and detention centres

Article 2 concerns the very controversial forced isolation and detainment of persons. There are already existing powers to isolate and detain persons travelling from countries considered as “infection circulation zones” and entering French territory (articles L3131-15 to 17 of the Code of Public Health).  The new Law will add powers to isolate and detain persons in isolation camps who “have been subject to a virologic test or to any medical examination concluding to a contamination” (Article 2, 1, c). It will also give powers to designated agents to control the presence of the persons detained in isolation centres “at any time”, except during the hours at which they are authorised to leave, and between 11pm and 8am. The sanction is 6 months imprisonment and 10,000€ fine (article L3136-1 Code of Public Health). But the new Law seeks to adopt a gradual approach. Article 4 states that the persons who are subject to a virologic test or a medical examination establishing contamination by SARS-CoV-2 “undertake, as soon as they learn about the result of this examination”, not to leave their place of residence for 10 days (except for situations of emergency). Article 4 continues by giving powers to the medical insurance bodies to inform the Regional Health Agencies, in cases of “non-respect of this undertaking or suspicion of non-respect of this undertaking”. Following this, the representative authority of the State is informed, and may apply the coercive measures of article L3131-15 and L3131-17 of the Code of Public Health mentioned above, as amended by Article 2.

Personal information

Article 3 amends the measures already adopted in article 11 the Law of 11 May 2020 concerning the collection and use of personal information in the context of the Covid 19 crisis. That provision has already been examined and struck down in places by the Conseil constitutionnel in 2020. As it currently stands, it permits the collection and use of personal information, and its sharing between designated persons and agencies of the State, including sub-contractors. The Law determines the conditions in which this information is collected, stored, used and shared, and the purposes for which it is so. The Law allows the State to create an information system in order to manage this information. Where the original Law allowed this for the purposes of what appeared to be non-coercive measures of treatment and self-isolation following the detection of an infection, the new Law will have far reaching effects. Indeed, the system of collecting information, using and sharing it which has been put in place will now be linked with the possibility to coercively impose measures of forced isolation in detention centres. Article 3 of the new Law adds a paragraph to article 11, II of the 11 May 2020 Law, to this effect.

Economic Impact

Interestingly, the Law anticipates that the measures imposed by articles 1 and 2 and described in the paragraphs above, will have economic consequences. It is not difficult to imagine why: customers not having access to restaurants, leisure activities, people denied health care, persons placed in forced isolation, etc, will mean many hundreds of thousands of hours of lost work and productivity. So article 4bisof the Law requires the Cabinet to present a weekly report to the Parliament, on this economic impact, including  the quantifying of  of turnover loss.

 

Compulsory vaccination

Article 5, I of the new Law provides a long list of categories of workers, volunteers and professions subject to the compulsory vaccination against Covid 19. The categories it includes are more or less everyone working, in any capacity, in establishments providing health services, which are very broadly and exhaustively defined: hospitals, detection and prevention centres, social and medico-social services, residences for the disabled and for the elderly, etc. Specific professions are mentioned, such as psychologists, psychotherapists, osteopaths, chiropractors. Anyone providing health home visits is also included. All students preparing to become a healthcare professional of any description are also subject to compulsory vaccination. Further, other ancillary services are concerned: fire-brigades (which in France have a role in healthcare, not just in fire-fighting), all personnel involved in health transports, material and service providers.

Article 5, II provides that the onus of justifying to their employers their vaccination status falls on employees and civil servants listed in Article 5, I. For other categories (for example contractors), the Regional Health Agencies are given the power to access their personal information relating to their vaccination status. Article 5, IV gives the legal responsibility to control the conformity with the vaccination obligation on employers and Regional Health Agencies.  Upon receiving the vaccination, people are informed that their personal information will be made available to employers and to the Regional Health Authorities. The latter two bodies are required to store this information until such time as vaccination is no longer compulsory.

The consequences for the persons subjected to compulsory vaccination, and who refuse to comply, are draconian. Article 7 provides for the immediate suspension of the exercise of their functions, from the day after the Law comes into force, without pay (unless they can avail of annual leave, with the agreement of their employer). In terms of social protection, this puts these persons in a quasi limbo. Indeed, on the one hand, that suspension without pay means the suspension also of contributions towards social protection and pensions, and on the other hand, they cannot access the social protection (unemployment benefit) earned by their contributions up to the suspension. They are effectively side-lined from the work and social protection system.

 

Conclusion

The paragraphs above merely present the contents of the new Law, which is currently before the Conseil constitutionnel. Many serious questions come to mind upon reading it, concerning the details of its application, points of legality and indeed of constitutionality, as well as conventionality. The Défenseure des droits highlighted with great concern these questions, as did several university professors, and indeed practicing lawyers. There is currently significant pressure on the streets, with demonstrations that are showing no sign of abating. The next few weeks will probably mark a turning point, both in terms of civic engagement, and in terms of trust between French people and their public institutions. It is in this context that the Conseil constitutionnel must render its decision.

 

 

 

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Covid-19 Restrictions and Religious Freedom in France

Dr Bénédicte Sage-Fuller, School of Law, UCC

On 29th March 2021, the French highest administrative court, Conseil d’État, ruled that the curfew restrictions did not constitute a grave and manifestly illegal breach of the freedom of worship, even during the Easter Triduum. The applicants had sought injunctive relief to obtain the lifting of the curfew for the Easter ceremonies, particularly the Easter Vigil, which is traditionally held at night.

This is the fourth time that the Conseil d’État was called to rule on the matter of freedom of religion and freedom of worship since last year. Twice, the Court ruled in favour of the applicants, and twice it maintained the restrictions that were contested. At this time of utter confusion in Ireland as to the constitutionality, and even the very existence, of legal restrictions to freedom of religion and freedom of worship, it is interesting to look at the situation in France.

The procedure used to obtain a court hearing is called the “référé liberté”, instituted in 2000 to allow a fast and effective remedy to protect fundamental rights and freedoms. It is in article L521-2 of the Code de la Justice Administrative and requires three conditions to be met. First, there must be urgency: a freedom is allegedly violated, depriving the public to enjoy it, and the court is asked to intervene swiftly. Generally, the Conseil d’Etat rules within 1-3 days of being seized. Second, the contested measure must be a necessary to achieve an objective. Third, it must be proportional to the objective sought.b34a76d8-451d-4898-b5e0-78af3299cbeb

The référé liberté has been used extensively since the beginning of this public health crisis, to defend several freedoms and rights. In some cases, the Court rejected the applicants’ pleas. For example, in September 2020, the Conseil d’État heard appeals from several local Administrative Courts (Tribunaux Administratifs), which had adjudicated on the legality of imposing the wearing of masks in city centres (freedom to come and go). In November 2020, it heard an application from a collective of restaurant and hotel owners, seeking the right to reopen their businesses (freedom of enterprise and freedom of trade and industry).  In December 2020, and again in February 2021, a group of well-known artists argued before the court that cinemas and artistic venues should reopen (freedom of expression, free communication of ideas, freedom of enterprise, freedom of trade and industry, free exercise of a profession, equality).

In other cases, the Conseil d’État agreed with the applicants and granted them their requests.  In February this year, the Conseil d’État ruled that the State could no longer impose a blanket ban on rights of external visits for nursing home residents (freedom to come and go). In March, a group of several hundred lawyers successfully argued that they should be allowed to meet their clients face to face after curfew hours (right of effective access to justice and right of defence, freedom of enterprise, right to private life, right to family life, freedom of enterprise). And of course, the subject of this blog, religious freedom has been argued successfully too.

As time goes on, the arguments made before the French courts are more pressing, and there is often a link made, and accepted by the court, with people’s physical and mental health, as it is adversely affected by Covid-19 restrictions. Public freedoms and human rights are there to protect the reality of human existence. When they are violated, there is a direct physical and psychological health impact for people.

In the case of freedom of religion, including freedom of worship, the Conseil d’État has now a well-established attitude to recall its tenet. The freedom is found in article 10 of the 1789 Declaration of Human Rights and of the Citizen, in article 9 of the European Convention on Human Rights, and in article 1 of the Law of 1905 on the separation of Church and State. The legal regime guarantees this fundamental freedom, subject only to conditions of public order. More particularly, the Conseil d’Etat has explicated the contents of that freedom, in the light of ECHR case-law: it is not limited to the right of individuals to express publicly their religious convictions. Indeed, the Conseil d’État reiterates in every decision that freedom of religion, according to French Law and ECHR Law, includes as an essential component the right to participate collectively to public ceremonies, particularly in places of worship, having respect to public order.

The Conseil d’État has also held, in its 3rd decision on the matter, that freedom of religion could not be compared to other freedoms, and that therefore restrictions to religious ceremonies could not simply be aligned with restrictions to other types of activities (para. 19).

The proportionality test that the Conseil d’État carries out every time concerns of course the objective of public health in the context of the Covid 19 crisis. As such, it only allowed the French Government’s measures to entirely ban public worship on one occasion, and that was at the beginning of the second lock-down, in November 2020. Its reasons for doing so at the time were that the total ban was going to be revised less than two weeks later. The court also noted that health protocols in churches needed to be updated, that in any event that churches were remaining open, and that ministers were allowed to receive the faithful individually in places of worship and in their homes.

At the end of November 2020, public worship was re-authorised by decree, but limited to 30 people per building, regardless of the size of the building. The Conseil d’État was seized again, following the same procedure of “référé liberté”, and quashed that limit, as it considered it to be a grave and manifestly illegal violation of freedom of religion.

The most recent decision was an attempt to obtain more favourable conditions during Easter, and it failed. But the bottom line is that freedom of religion, including its element of freedom of worship, has been upheld in court, throughout different kinds of sanitary conditions. France is now entering into a lockdown, and it continues to stand.

At a time of public health crisis, when extraordinary powers are exercised by the State, it is absolutely essential to be reminded of our public liberties and human rights.  Twelve months into this crisis, voices are beginning to ring alarm bells about the severe impact of lock-downs and restrictions on people’s physical and mental health, the elderly in particular. So far, neither here in Ireland nor in France, has an outbreak of Covid-19 in a place of worship ever been reported. On the other hand, it is acknowledged that attending religious services is an important part of maintaining people’s morale.

Public worship is protected throughout France, a country more known for its aggressive secularism than for its benevolence to religions. Separation of Church and State, like the separation of powers, is a fundamental principle of society. It precisely relies on freedom of religion, including freedom of worship. What we have seen in the last 12 months, is that when the French Government forgot this basic truth, the courts of law, seized by engaged citizens, were there to remind them of it.

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The Constitutionality of Mandatory Hotel Quarantine

Professor Conor O’Mahony

Yesterday, during Leaders’ Questions in the Dáil, the leader of the opposition Mary Lou McDonald suggested to the Taoiseach that “not alone is it necessary to have a system of mandatory hotel quarantine, but it is also the efficient and reasonable request to make of the authorities of this State. It is a no-brainer.” The Taoiseach responded as follows:

“There are compelling legal reasons [why] it is not possible to do what Deputy McDonald is suggesting. We have our Constitution, which has a clear framework concerning personal liberties and freedoms. Balancing is required, therefore, in respect of getting something in place which can be robust in resisting legal challenge.”

The Taoiseach went on to say that the Government is taking “comprehensive legal advice” on this point.

The clear suggestion made by the Taoiseach was that it would be unconstitutional to legislate for mandatory hotel quarantine (although he did not specify that the Attorney General had specifically advised that this was the case).

Is this claim credible? Mandatory hotel quarantine has been successfully introduced in other jurisdictions with similar legal traditions to our own, including Australia and New Zealand. Of course, we have a different Constitution to theirs – but does it really contain provisions that preclude the introduction of mandatory hotel quarantine?

On its face, there is nothing in the text of the document that would do so. The most directly relevant provision is Article 40.4, which states that “No citizen shall be deprived of his personal liberty save in accordance with law.” It could be suggested that a 14-day mandatory quarantine in a hotel room amounts to a deprivation of liberty; however, this does not make it unconstitutional. The question is whether the deprivation is “in accordance with law”. This phrase does not mean simply that there must be a legislative basis; in King v Attorney General [1966] IR 501, Henchy J stated at p 257 that it means “without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution.” This is a highly imprecise test, which affords a large degree of discretion to a judge in any given case. What it does suggest is that in the case of mandatory hotel quarantine, the question of its constitutionality must be resolved by looking at other constitutional principles rather than at Article 40.4 in isolation.

The principles in question are generally derived from case law rather than from the text of the Constitution. First of all, there are constitutional rights which are not stated in the text, but which have been recognised in judgments of the courts (known as “unenumerated rights”). Several of these may be restricted by mandatory hotel quarantine, including most obviously the right to freedom of movement within the State (Ryan v Attorney General [1965] IR 294 at p 313) and the freedom to work (NHV v Minister for Justice [2017] IESC 35 at [17]). More indirect impacts could also be argued in relation to the right to travel abroad (State (M) v Attorney General [1979] IR 73) or the right to personal autonomy (Re a Ward of Court (No 2) [1996] 2 IR 79, and perhaps other rights also.

However, as is well established, the mere fact that constitutional rights are restricted does not render a law unconstitutional. It is the beginning of the analysis, not the end. The general principle was set down by Kenny J in Ryan v Attorney General [1965] IR 294 at p 312:

“None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this. When dealing with controversial social, economic and medical matters on which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen. Moreover, the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with particular force to this type of legislation.”

Mandatory hotel quarantine is a classic case of balancing competing rights. It balances the rights of the traveller arriving in Ireland mentioned above against the right to life of those who might die as a result of COVID infections (whether old or new variants) introduced into Ireland from abroad. The courts have on many occasions held that the right to life ranks first in the hierarchy of constitutional rights (see, eg, Re a Ward of Court (No 2) [1996] 2 IR 79). The risk of the introduction of new variants is a particularly important factor here, both due to the experience of the surge of COVID cases in December and January after the introduction of the UK variant, and the risk that new variants may undermine future efficacy of vaccination programmes.

More broadly, it could be argued that by mitigating the risk of the introduction of new cases or new variants from abroad, mandatory hotel quarantine is aimed at maximising the effectiveness of the other COVID restrictions and allowing for their relaxation in due course in a manner seen in Australia and New Zealand. As such, it can be reasonably linked to the protection not just of the right to life, but all the other rights of Irish residents which are currently impacted by COVID restrictions. Like travellers subject to quarantine, these rights include the right of freedom of movement within the State and the freedom to work; and they also include other rights that have been the subject to longstanding restrictions, including the right to free primary education (Article 42.4) and the right to freedom of practice of religion (Article 44.2).

The passage quoted above from Ryan shows that in a case like this, the presumption of constitutionality will apply with “particular force” to any legislation enacted in this space, and the decision of the Oireachtas should prevail unless it lacks “reasonable proportion”. This point was later developed by the Supreme Court in Touhy v Courtney [1994] 3 IR 1 at p 47, when Finlay CJ stated:

“The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.”

Can it be said that mandatory hotel quarantine fails this test? It is worth noting in this respect that in addition to having been successfully operated in legally similar jurisdictions, its introduction in Ireland has been recommended by multiple leading experts in public health or infectious diseases (see, for example, Prof Anthony Staines and Dr Tomás Ryan, Dr Niall Conroy and Prof Sam McConkey). Furthermore, the degree of the limitation on rights is significantly less than the scale of the other interferences that it is designed to prevent. No one will die. The number of people who might be subjected to mandatory hotel quarantine is comparatively tiny compared to the entire population of Ireland, who are currently subjected to severe restrictions of their rights. The period of time (14 days) is far shorter than the many months of lockdown imposed in both 2020 and again in 2021. And perhaps most importantly, people can elect whether to travel to Ireland, and can avoid quarantine simply by not travelling. This cannot be said of the nearly five million residents who have no way of avoiding the longstanding COVID restrictions.

In light of all of the above points, is it credible to suggest that it is perfectly constitutional to leave children with special needs out of school for months on end, or to close down someone’s restaurant or pub, or to prevent religious people from attending churches almost indefinitely – but that a 14-day mandatory hotel quarantine is “so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights”?

An alternative mode of analysis that features prominently in Irish constitutional case law is the proportionality test. This was hinted at in the passage quoted above from Ryan, and set out in more detail by Costello J in Heaney v Ireland [1994] 3 I.R. 593 at p 607:

  1. Pursue an objective of sufficient importance.
  2. Be rationally connected to that objective, and not unfair or arbitrary.
  3. Impair the right as little as possible.

Applying this to mandatory hotel quarantine, it is clear that it pursues an objective of sufficient importance (the control of a pandemic that has taken thousands of lives and devastated our economy) and it is rationally connected to the objective (in that it is aimed at and capable of preventing people infected with COVID from passing the infection to others in the community). So the real question is whether it impairs the rights mentioned above as little as possible. In this regard, any challenge to the law would be met with the defence that 14 days is the minimum period that can ensure the prevention of spread of the virus, since PCR tests can have a false negative rate up to 29%. It is not workable to only apply mandatory hotel quarantine to countries where new variants have arisen, since those variants have already spread beyond those countries. Finally, in the same way that other COVID restrictions have included limited exceptions for certain cases (such as the death of a family member or essential work), a mandatory hotel quarantine regime could do likewise. If it only applied to people whose travel into Ireland was outside of such exceptions, it is difficult to imagine a court finding that it impaired rights more than necessary and therefore failed the proportionality test.

Finally, any such challenge must be placed in the wider context of trends in Irish constitutional law. Since the turn of the Millennium in particular, the Irish courts have had a settled preference for deferring to the judgment of the Oireachtas and upholding laws in cases where complex or controversial judgments need to be made on social or economic policy. It is worth citing a few prominent examples of this approach from the last decade. In Fleming v Ireland [2013] 2 IR 417 a case concerning whether the ban on assisted suicide violated the constitutional rights of a disabled woman, the Supreme Court stated at p 441 that “[t]he presumption [of constitutionality] may be regarded as having particular force in cases where the legislature is concerned with the implementation of public policy in respect of sensitive matters of social or moral policy.” The challenge to the law in that case was rejected on the basis that “the legislation in question called for a careful assessment of competing and complex social and moral considerations. That is an assessment which legislative branches of government are uniquely well placed to undertake.”

Similarly, in MR v An tArd Chláratheoir [2014] IESC 60, the Supreme Court overturned a decision by the High Court in which it had attempted to fashion new rules governing parentage in the context of surrogacy arrangements. Chief Justice Denham commented at [96] and [113] that “[a]s a significant social matter of public policy it is clearly an area for the Oireachtas, and it is not for this Court to legislate on the issue … It is, thus, quintessentially a matter for the Oireachtas.” In MD (a minor) v Ireland [2012] 1 IR 697, the Supreme Court considered a challenge to the constitutionality of s. 5 of the Criminal Law (Sexual Offences) Act 2006 insofar as it criminalised sexual behaviour by boys but not by girls. The State justified the legislation by reference to the social policy of protecting young girls from pregnancy.  The Supreme Court rejected the challenge as follows at p 719:

“This was a choice of the Oireachtas. Even in a time of social change, it is a policy within the power of the legislature … The Oireachtas could have applied a different social policy but s. 5, the policy which they did adopt, was within the discretion of the Oireachtas, and it was on an objective basis, and was not arbitrary.”

Thus, it is not enough to show that a different policy could have been adopted; it must be shown that the law that is challenged is arbitrary and lacks an objective basis. In the case of mandatory hotel quarantine, the tendency of the Courts to defer to the Oireachtas would be likely to be particularly pronounced given that the decision is taken in a time of crisis and is informed by very specific medical and scientific expertise which is not shared by the judiciary.

Taken all in all, my conclusion is that a law enacted by the Oireachtas imposing 14-day mandatory hotel quarantine on travellers arriving into Ireland would be highly likely to survive constitutional challenge. This would particularly be the case if it included some narrowly drawn exceptions to cater for cases where the impact was at its harshest (for example, in the event of the death of an immediate family member).

Professor Conor O’Mahony lectures in constitutional law at University College Cork.

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Is there a Right to Freedom of Thought in Irish law?

Freedom of thought does not enjoy specific recognition in the text of the Irish Constitution. And although there have, to date, been several dozen proposals to amend the Constitution, none of them has suggested adding freedom of thought. If this is evidence that lawyers, or politicians, or the general public have generally been indifferent to freedom of thought, recent technological advances have made clear that such indifference is no longer a reasonable option.

Techniques such as neuroimaging, neuromarketing and neuroenhancement, deep brain stimulation and transcranial magnet stimulation as well as non-voluntary psychiatric intervention have the potential to endanger freedom of thought in ways that were perhaps inconceivable only a short time ago. In doing so, they create an urgent opportunity for us to remind ourselves of and to re-articulate for our contemporary world the reasons why freedom of thought is important.

Freedom_of_Thought_Ben_Franklin

While freedom of thought does not enjoy specific recognition in the text of the Constitution, that is not to say that it enjoys no recognition at all. There are three ways in which freedom of thought is at least tentatively recognised in Irish constitutional law.

 

First, some of the rights that are expressly protected by the Constitution, such as the freedoms of expression, conscience and religion, are corollaries of freedom of thought and necessarily imply its existence. Freedom of expression protects the expression that follows from free thought which tries to shape public opinion, freedom of conscience protects the actions or refusals to act that follow from free thought in relation to moral questions, and freedom of religion protects the beliefs and practices that flow from the freedom of thought in relation to religious belief. These intrinsic connections were recognised in a 2011 High Court decision on the question of whether the parents of a baby who would likely die without a blood transfusion were entitled to refuse such a procedure. Mr Justice Hogan held that:

“Along with the guarantee of free speech in Article 40.6.i, Article 44.2.1 guarantees freedom of conscience and the free practice of religion. Taken together, these constitutional provisions ensure that, subject to limited exceptions, all citizens have complete freedom of philosophical and religious thought, along with the freedom to speak their mind and to say what they please in all such matters.”

Freedom of expression, freedom of conscience and freedom of religion are to be understood, therefore, as rights that include a prior commitment to freedom of thought.

Second, freedom of thought is protected in several international treaties to which Ireland is a party. Article 10 of the Charter of Fundamental Rights of the European Union, Article 9 of the European Convention on Human Rights and Article 18 of the International Covenant on Civil and Political Rights all protect the freedom of thought, conscience and religion in the same provision. There are six recent High Court decisions (handed down between 2009 and 2018) and one 2015 Supreme Court decision in which these international protections for the freedoms of thought, conscience and religion are mentioned as if they all enjoy equal protection in Irish law. Not one of the judges pointed out that while the Constitution expressly protects freedom of conscience and freedom of religion, it does not expressly protect freedom of thought. If the example were altered – if those same international law treaties protected conscience, religion and a right to food in the same provision – it seems likely that the Irish courts would have found cause to mention that a right to food is not one of the rights protected by the Constitution. Failure to do so may signal that international protection for the right of freedom of thought confirms an unspecified sense among the Irish judiciary that freedom of thought is already within the ambit of the rights protected by constitutional law.

Third, freedom of thought has been recognised as an unenumerated right in the 2017 decision of NVH v. Minister for Justice, a decision which is noteworthy for many reasons: its discussion of dignity and human personality, its recognition of the necessary sociality of the human condition, its treatment of the right to work as an unenumerated right and a negative freedom, its approach to the question of remedies, as well as its  cautious and conscientious reacknowledgement of the doctrine of unenumerated rights. It is also important for the fact that it recognises freedom of thought as a constitutionally-protected, if unwritten, right, for the first time. This recognition is achieved in a short passage in the judgment of Mr Justice O’Donnell, which reads:

“Set on a foundation of the essential equality of the human person, the Constitution guarantees first life and then personal liberty, and freedoms radiating outwards from that: freedom of thought and conscience, freedom of expression, freedom to associate with others, family rights and the right to acquire, hold and transfer property among others.”

Listed as first among the rights that flow from human freedom, freedom of thought is presented as though it is entirely uncontroversial that the Constitution protects such a right. Indeed, this short passage seems to convey that it is unthinkable to the Supreme Court that freedom of thought is not one of those rights that is protected under the terms of the Constitution.

Although the technological challenges to freedom of thought may be new, the indispensability of freedom of thought within the human experience is timeless. The conclusion that freedom of thought is the central to the human experience finds support, for example, in the many testimonies of persons who were so physically confined or debilitated that they were deprived of physical, social and vocational freedom. Viktor Frankl, a philosopher, psychotherapist and Holocaust survivor, wrote of how thoughts of his wife and imagining mental conversations with her allowed him to find meaning even in the horror and misery of a Nazi concentration camp, and subsequently led him to found the school of logotherapy. Similar experiences of the centrality of freedom of thought to human freedom and the quest for meaning in human life, even in the direst circumstances when all other freedoms are denied, are told in the testimonies of Aleksandr Solzhenitsyn, Immaculée Ilibagiza, Aung San Suu Kyi and Jean-Dominique Bauby, among others.

For now, although freedom of thought is not explicitly recognised by the text of the Irish Constitution, it seems that there are good legal reasons to suppose that it would be taken seriously by the Irish courts, and we can only wait in hope for the case that will give the superior courts in Ireland a chance to further explore and defend this most fundamental human right.

Maria Cahill is Professor of Law at University College Cork. 

Blogpost based on a forthcoming article entitled “Recognising Freedom of Thought in Irish Constitutional Law” which is one of a series of articles in a ground-breaking collection examining freedom of thought in comparative perspective, and which will be published in early 2021 in a special issue of an international journal.

 

 

 

 

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You Can’t Sit With Us – Some European Responses on the Remote Sitting of Parliaments

Jack Larkin

The pandemic has created the tragic conditions for several experiments on the question of how societies organise.

The obvious example is the domain of public health; comparing how different states tailor their lockdown regimes. Yet comparisons can also be run in the differing responses we see from other institutions.

A curious instance is the question of whether parliaments may sit remotely, recently discussed on this blog. This curiosity arises not because of the outcome (‘this country allows remote sittings, that country doesn’t), but because of what these responses tell us about those institutions and their constitutional frameworks. Moreover, these legal experiments better inform our view of the Irish system.

Two contrasting approaches, Estonia and Latvia, may therefore be of some interest in this regard. Both have allowed for remote sittings, but in ways that present some awkward conclusions, perhaps, for the Irish observer.

Estonia

It is unsurprising that Estonia, the land of Skype, has allowed for remote sittings: What is surprising is the way in which this was done.

Estonia’s Constitution is silent as to where parliament sits. Instead, sittings are regulated by The Riigikogu [Parliament] Rules of Procedure and Internal Rules Act, § 57 of which provides:

‘Sittings of the Riigikogu are held in Tallinn in the session hall of the Toompea Castle unless the President of the Riigikogu, for weighty reasons, designates another place for the holding of the sitting.’

The Act is less specific on committees, mandating that their minutes indicate a location.

Within this statutory context, the following occurred:

The first surprise is that the Committee was not convinced that the reference to ‘another place’ in the Act could involve the digital realm. More surprising however, is the Committee’s independence; forming an initial view based on its own statutory interpretation, it then consulted the factions in order to affirm/contest this view. 3 of the 9 Committee members are lawyers, with a fourth holding a law degree.

Latvia

Latvia’s Constitution, like Ireland’s, does mention parliamentary sittings:

’15. The Saeima [Parliament] shall hold its sittings in Rīga, and only in extraordinary circumstances may it convene elsewhere.’

The Constitution cannot be amended easily, requiring a two third parliamentary majority. Strikingly however, another, innovative approach was adopted:

  • On March 23, The Latvian President declared that legal formalism must not impede state functioning during this emergency. He convened, in an historical first, a meeting of the heads of all constitutional bodies: the President, legislature, executive, and judiciary;

The context in which this interpretation occurred is most interesting: to the Irish observer, it is as if the Council of State had suddenly transformed itself into a constitutional shock-brigade. There is no provision in Latvian law which allows for such meetings between the constitutional bodies but, undeniably, it allowed for quick agreement. I have since asked a Latvian lawyer, Aleksejs Dimitrovs, on the reaction: he indicated that nobody has really questioned the President’s authority to organise this meeting, perhaps because the President, Egils Levitis, is a respected lawyer (the former Latvian judge in the ECtHR and CJEU) and that therefore even the judiciary wasn’t hesitant to engage with his plan.

Final Thoughts

In Estonia, we see a parliamentary committee that is quite capable of legal interpretation; one can point to the fact that the Constitutional Committee was interpreting a statute only, but this Committee has engaged in constitutional interpretation: in 2017 the Committee disagreed with the Chancellor of Justice (an office overseeing compliance with the Estonian Constitution) over whether certain tax measures were unconstitutional: this dispute was a rather nuanced, involving the relevance of Supreme Court precedents in the area.

This is a sign of institutional health: those who make law ought to be able to form their own conclusions on what that law is and not endlessly and externally defer.

The Irish approach stands in sharp relief: first legal advice was sought by the Business Committee; on foot of this advice (which remains the contested view of one lawyer), the Ceann Comhairle wrote to TDs flatly stating that remote sittings were not possible. Alternative legal advice obtained by a Deputy was disregarded. Whatever about the result, this ‘process’ is hardly preferable to Estonia’s, where a parliamentary committee met, engaged itself on the issue of interpretation and then consulted with, rather than dictated to, the rest of parliament.

Looking to the Latvian approach, this was enviable in how state bodies were able to collaborate. It went beyond a simplistic view of constitutional actors acting solely as ‘checks and balances’, and instead, looked to such bodies functioning as cooperative agents. Some Irish lawyers I’ve spoken with raised the issue of whether such meetings strain the separation of powers, and risk the judiciary deciding questions of interpretation before a case is properly before the courts. This concern may apply to the normal situation. But the Latvian approach can’t be compared to times of normalcy, only those of emergency: in the latter, it is typically the executive branch making decisions to the general exclusion of the other powers. Whereas in this instance, we actually have all branches capable of participating in such decisions i.e. there was more collaboration than typically seen in an emergency.

Moreover, the improvised procedure was more dynamic than a court awaiting a challenge by an individual, risk-taking, litigant who, importantly, may never appear. This last point is worth considering in the Irish context as it is not likely that there would ever have been any involvement by the Irish courts on the issue of remote sittings. This is so for two reasons:

Suppose the Dáil had decided that it could sit remotely, a simple amendment to the standing orders would have been required. This would rule out an Article 26 reference. Someone would then have had to issue proceedings in order to involve the judiciary. While not completely clear how likely a challenge would have been, I think unless there are unknown bands of would-be litigants carrying deeply held sentiments toward physical sittings of the Dáil, it’s safe to assume that such a challenge would have been unlikely. If we accept this, then we have to accept that the Latvian approach, which included the judicial arm from the outset, arguably serves the Separation of Powers better by giving a voice for the judiciary concretely and immediately, since this is a voice which would never have been heard in the absence of a Court decision on such a dry, procedural point.

Any comparative analysis must always be conscious of stretching its recommendations too far: the concrete situations of Estonia and Latvia come with bespoke baggage, and this piece is not a call for the adoption of identical procedures. Instead, this piece has sought to advance the case that other states often ‘do constitutionalism’ in more interesting, more dynamic, and more democratic ways, casting, in this instance, the Irish approach in a harsh light.

Jack Larkin is postgraduate student studying history at the University of Oxford and is a law graduate of Trinity College Dublin and the LSE.

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