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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Lockdown v. Liberty: do we still believe in freedom?

Maria Cahill

All around the world, countries have been imposing lockdowns to try to contain the spread of the deadly coronavirus, COVID-19. These lockdowns have severely restricted people’s movement and interaction with family members; they have had a drastic effect on social lives and religious worship; they have directly caused the loss of many jobs and they have plunged the world into a severe economic depression that will take a long time to recover from.

And yet, with some notable exceptions, these measures have been overwhelmingly accepted.

Do we accept these restrictions because we do not believe in freedom anymore? Or do we believe that these restrictions do not really disrespect the essence of our freedom?

While there are men and women dying without the consolation of a familiar voice and others struggling to summon the energy to take the next painful breath, these might seem like trivial questions. While there are people waiting for news not knowing if their loved one is alive or dead and others going to funerals on live stream and grieving over Zoom, it can seem heartless to turn attention away from the rawness of all that agony for a moment to engage in a philosophical discussion on the nature of freedom.

But C.S. Lewis said in Oxford in 1939 that the work of learning and thinking must continue even during war-time because if we don’t have good philosophy then we will have bad philosophy. Even during a pandemic – perhaps even especially during a pandemic that is accompanied by widespread lockdowns – it is vital that we keep thinking carefully about freedom and the restrictions that we are living with.

What is Freedom?

Popular understandings of freedom tend to fall into three categories: (1) freedom as absence of external restrictions controlling our behaviour, (2) freedom as the practical capacity to do something that we want to do, and (3) freedom as the psychological capacity to overcome internal barriers to success.

If my goal is to win a tennis grand slam, for example: (1) I would need the freedom to take a leave of absence from my job (freedom as lack of restrictions); (2) I would need to have developed all the practical skills to become the best tennis player in that tournament (freedom as capacity to act); and, (3) I would need to be resilient enough to overcome inevitable setbacks along the way and to bear the burden of success (freedom as psychological accomplishment).

Let’s leave aside for now the third category of freedom as psychological accomplishment, which is a newer preoccupation within theories of freedom, although it may overlap with theological understandings of freedom that have longer histories.

The distinction between freedom as absence of external limitations and freedom as capacity to act has been around for at least 200 years, and it has been made using different terms: Benjamin Constant called it the distinction between the liberty of the moderns and the liberty of the ancients, Isaiah Berlin spoke of a distinction between negative liberty and positive liberty, Charles Taylor framed it as a distinction between freedom-as-opportunity and freedom-as-exercise (before critiquing the caricatural extremism that the distinction encourages), while others have tried to transcend the distinction.

More colloquially, it is known as the distinction between freedom from and freedom to. Negative freedom is freedom from external obstacles that limit or interfere with my choices while positive freedom is freedom to achieve goals that are rationally worthy of my efforts, seeing a connection between freedom and responsibility in relation to my own life and also the lives of others in the same community. Berlin, among others, argued that positive liberty carried with it a danger of authoritarianism, assuming that the state were to choose the goals to be achieved.

Freedom and Law

As a result, law’s role in protecting freedom usually boils down to protecting negative freedom. We write our constitutions so that they protect citizens from external obstacles that interfere with individual choices. We use fundamental rights provisions to articulate that the state is not permitted to interfere with our family life, our privacy, our property, and our freedoms of thought, expression, conscience, religion and association.

Negative freedom and the priority of choice thus became the prevailing hallmarks of liberalism and the foundation of liberal democracies.

But if we are defining freedom as freedom from external obstacles that interfere with my choices, then the lockdown restrictions are a strange case. If all we want is to have freedom of choice, without any responsibility for the lives and welfare of others, then we should all be out on the streets engaging in antilockdown protests, instead of thinking that it is the protestors whose concept of freedom is twisted.

The fact that we are prepared to live with these restrictions calls for an explanation, and there are at least three possibilities:

The first possibility is that we accept the restrictions because in fact they line up with our choices. In normal circumstances, we would want to work and to be free to see family and friends, but fear of contracting the virus has overwhelmed those choices and so they are not choices that we want to make at the moment. The restrictions are not problematic, on this view, because they are not asking us to do things that we do not already want to do. This explanation is inadequate, however, given the imbalance between mortality rates in populations under 65 (evidenced in Britain, Italy, Ireland, Spain) and the severity of the economic and social cost of restrictions on those same populations.

A second possibility is that we have become de-sensitised to value of freedom and that we do not object with sufficient determination to restrictions even though we should do. To put it more bluntly, the second possibility is that lacking a strong sense of solidarity and the psychological maturity to bear the responsibility of freedom, we walk ourselves sleepily into tyranny. The explanatory power of this possibility turns, in each jurisdiction, on the kinds of measures that were put in place, their legitimacy and longevity, but also on the strength of democratic opposition and responsible journalism. Avoiding this depressing scenario requires ongoing vigilance and critical analysis.

In the case of the first possibility or the second possibility, there is no real conflict between the restrictions and individual freedom because they have collapsed into each other.

Socially Responsible Freedom

The third possibility maintains that the lockdown restrictions are in direct conflict with individual freedom, but it says that, we are willing to endure even severe limitations on our individual freedom out of a sense of responsibility for the lives of others. We know that, because of the highly contagious nature of this virus, we hold the lives of friends and strangers in our hands and that their lives reasonably take priority over our choices.

Negative freedom always allowed that the state would sometimes deny our constitutionally-guaranteed freedoms when there are pressing public interest concerns, but only around the edges. The restrictions infringe on our freedom in a much more comprehensive and wide-ranging way and with lasting effects on economic wellbeing. They do not square easily with negative liberty within the liberal paradigm.

Could it be, then, that one of the realisations that we are having during this extraordinary time, is that our conception of freedom is not as self-centred as we might have thought it was? That the vision of freedom as the prioritisation of the choices of individuals by means of rights that cannot be interfered with is too narrow. That, as feminist theorists have reminded us time after time, we are also members of communities with a sense of solidarity with the vulnerable. That we recognise the value of self-transcendence and our vision of freedom is ambitious enough that it is not threated by care and responsibility for the lives of others.

These restrictions should not stay in place a minute longer than they need to – and all of us bear responsibility for ensuring that that does not happen – but at the same time it is worth pondering whether our understanding of freedom is more socially responsible than our theories of freedom have given us credit for.

Maria Cahill is Professor of Law at University College Cork. 

This blog was originally published on Verfassungsblog and is republished with permission. 

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