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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