Gavan Reilly: Let’s hope the next term brings more Covid scrutiny than this one

Last week’s missive by Michael D Higgins, complaining about the workload being sent his way from Leinster House, was a twofold criticism. The first aspect is fine: it’s preposterous to produce only 11 laws in six months, and then 19 in three weeks, and expect all of the 19 to be given adequate consideration by a constitutional guardian.

The second was an interesting intervention in how the Dáil goes about its business, though. Higgins says he pays attention to Dáil debates (as indeed he should) and is concerned about how little time is made available for actual discussion on some bills. Indeed, because the government has started using the ‘guillotine’ and curtailing debating time in a bid to get more bills passed, large tracts of many bills simply don’t get scrutinised at all.

Higgins touches indirectly upon a bigger problem with how the Dáil has gone about its affairs since the pandemic broke out on our shores. Covid is a pox on the way politicians go about their business but it also means that, for all the goodwill in the world, there is scant supervision or examination of the regulations under which we live our lives.

Permit me a two-line CSPE lesson. In Ireland there is ‘primary law’ and ‘secondary law’. Primary law is what the Dáil and Seanad are usually focussed on; they will debate a bill on its merits, and on the provisions it contains, and if they’re happy it will then be signed into law. But often, those bills won’t delve too much into the real nitty-gritty of how a situation should play out - and so they give a minister the power to issue ‘secondary law’, which allows a minister to micro-prescribe the fine print at the stroke of a pen.

Covid-19 is a prime example of how this works. Last March, before there was any sniff of needing a full national lockdown, officials realised there was no actual legal basis for Ireland to follow the lead of the likes of Italy and Spain in issuing a stay-at-home order by decree. And so, not knowing whether Ireland might have to follow suit, the Dáil and Seanad passed legislation allowing for a mass lockdown - either nationwide or in specific areas - if the government saw fit.

But that last line is the important qualifier: if the government saw fit. Sensible as it was given the fast-moving situation - remember, last March the Government decided against a full national lockdown, and then adopted one three days later - giving power to the government to issue regulations on the nitty-gritty of lockdown does produce a democratic deficit. These are secondary laws, and the structure means the Minister for Health has discretion to issue dramatic and draconian curbs on civil liberties: on the right to meet, to play, to wind down, and even to work. At several points in the last 18 months, regulations issued by the Minister for Health have even made it a literal crime to leave your house without reasonable excuse.

For much of that time, such impositions were probably justified. Nobody has a textbook on how to handle a pandemic and, plainly, if the country cannot tolerate a large wave of infections then the first course of action is to limit the ability of people to pass the virus to one another. But were they properly scrutinised? Perhaps by academics, and some in the media made conscious efforts to keep an eye on them - including this writer, who noted that sometimes the regulations weren’t published until days after they were supposed to take legal effect. Indeed, there have been some points in this pandemic where it is literally impossible to know whether your actions were legal.

For example: you may remember a brief furore over an outdoor rave in the Oliver Bond flats? It took place on a Saturday night but the regulations weren’t published until the next day, thus making it impossible to prosecute any organiser. Likewise the operators of the Irish Greyhound Derby were told their race could still go ahead… only for regulations, published the next day, to forbid any greyhound racing. The race would have been an illegal event were it not for the regulations still being a secret. The regulations also only allowed ‘senior’ GAA club championships to continue, but Sport Ireland interpreted this to mean ‘adult’ - so while mostly harmless underage sport was suspended, Dublin’s Junior G football championship (yes! They have a Junior G grade!) was allowed to play out.

You’d think in this light that regulations would be subject to a full thrashing out inside Leinster House or the Convention Centre… but no. There is no automatic debate on any secondary laws as part of the ordinary course of Leinster House business, nor is there any need for TDs to give their official nod to a minister’s regulations. The only level of scrutiny is if a TD or Senator believes a regulation (or ‘statutory instrument’, as they’re officially called) is so egregious that it should be rescinded entirely. In that case, they can use a bloc of their opposition time to table a motion seeking that the regulations be annulled. But even that has only happened once, when the Rural Independent Group complained about restaurateurs and publicans having to keep a log of all the €9 meals being sold - and their motion would accidentally have rescinded all Covid-19 restrictions in place at the time.

But otherwise there’s no scrutiny at all, and that’s hardly an illustration of a healthy functioning democracy. There were 72 ministerial regulations issued under the Covid laws last year, and already 65 so far this year. Not all of them are enormously meaningful - some are tiny amendments, doing nothing but prescribing the attendance for certain sports events. But others are more meaningful - like the aforementioned ban on leaving your house, or governing the rules on mandatory hotel quarantine.

This lack of scrutiny is why you have situations where some bishops feel comfortable telling their priests that communions and confirmations are fine to resume, even though it’s against the public health advice at the time. More detailed scrutiny would have established that such ceremonies are not actually banned under the regulations to begin with (even though Micheál Martin seemed to claim so last Friday). It’s why musicians are still left claiming the PUP even though the regulations behind weddings don’t prohibit the performance of music at receptions, as I outlined on this page last week. It’s why the hospitality trade was suddenly told, late on a Sunday night, that buffet style self-service was not permitted when it actually is – and why it took a tweet from Leo Varadkar to address the fact that the HSE card is sufficient proof of vaccination without people needing a Digital Covid Certificate to avail of indoor dining.

The UK is hardly a role model to follow for all things Covid-19 but they at least have the right idea when it comes to scrutinising secondary law; in many cases regulations take immediate effect but must be approved by parliament within 40 days, meaning there must at least a token debate on some of the propositions. It would hardly be asking too much for Ireland to have followed suit since March 2020 to ensure that specific curbs on basic freedoms were properly conceived and rightly implemented.