It is sometimes necessary to take exceptional measures to safeguard fundamental human rights, such as the right to life, and to protect the health of individuals and the community.
However, the Commission recognises that these measures can, and do, restrict individual freedoms and liberties. This is why the Commission has, from the outset, stressed publically the need for such restrictions to be legal, proportionate, fair and non-discriminatory, and that human rights and equality principles inform their implementation. It is also why the Commission has been clear about the importance of the role of the Oireachtas in the democratic scrutiny of new laws and regulations in the course of the pandemic, including ongoing monitoring of the human rights and equality impacts of their implementation.
For its part, the Commission is committed to continuing its work to independently keep legislation and policy under review, in line with its statutory mandate.
The Government has said that the aims of those measures has been to minimise, insofar as possible, the “immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19.”
Those requirements and restrictions have been modified from time to time, as the consequences of the pandemic have changed.
The requirements and restrictions that were in place, and those remaining in place, have had different impacts on different groups in Irish society and have, in some cases, resulted in significant challenges being faced by certain categories of individuals.
Several of the requirements and restrictions that were in place were lifted on 22 January 2022, when a new piece of legislation (Statutory Instrument 27 of 2022) came into force.
Those requirements that were removed include:
As outlined below, certain requirements remain in place, e.g. in relation to international travel (for example, the requirement to provide proof of vaccination against Covid-19 or a negative PCR test result when entering the country) and the requirement to wear face coverings in certain settings.
The relevant law sets out that a face covering means:
“[a] covering of any type which when worn by a person covers, without leaving a visible gap, the person’s nose and mouth.”
The current legal rules in respect of the wearing of face coverings in certain settings can be found on the Government website.
Some requirements in respect of the use of face coverings still remain in place. There are a number of exceptions to these rules (as set out below).
The law requires that any persons travelling within a taxi, known in law as a “small public service vehicle”, which has space for 8 passengers or less must wear a face covering.
The driver of such a vehicle has a legal obligation to ensure that passengers adhere to this rule.
However, the rule does not apply:
Currently, the law requires that anybody travelling on public transport, for example, the bus, train, or Luas, must wear a face covering, unless:
Employees of the public transport company that manages the transport being availed of or those working on its behalf, or employees of the National Transport Authority or those working on its behalf, who reasonably believe that a passenger on public transport is not wearing a face covering, have the legal power to:
However, they must first provide the passenger or prospective passenger with an opportunity to provide a reasonable excuse, as set out above, and they may request any information they consider necessary to determine whether the person does in fact have a reasonable excuse.
It might be of assistance to provide a medical certificate to the person seeking to determine whether you have a reasonable excuse, but the law clearly states that the onus is on the passenger to establish that they have a reasonable excuse that justifies them not wearing a face covering.
It will ultimately be for the public transport or National Transport Authority representative to decide whether you have a reasonable excuse or not. If you believe that such a person has made a decision which does not reflect the reality of your situation or which is discriminatory of you, you may wish to consider instituting court proceedings or a complaint at the Workplace Relations Commission (for more information, see below). It is recommended that you seek legal advice before doing so.
At the current time, face coverings must be worn by anybody who accesses any of the following venues or services:
The occupier or manager of any of these premises has a legal obligation to take reasonable steps to engage with persons entering, in order to inform them of the requirement to wear a face covering and they must also promote compliance with the rules around face coverings. The rule does not apply to:
As outlined above, there are a number of exceptions that result in it not being legally necessary to wear face coverings in certain instances.
If you believe that a person or an institution has failed to apply those exceptions in the manner provided for by the law, for example, if you are a person who cannot wear a face covering without severe distress but you have been refused entry to a certain establishment because you are not wearing a face covering, then the person or institution’s decision could possibly be subjected to legal challenge. You may wish to consider instituting court proceedings or a complaint at the Workplace Relations Commission (for more information, see below). If you find yourself in such a situation, it is recommended that you seek legal advice.
The requirement that pupils wear face coverings in schools is not set out in law. However guidelines produced by the Department of Education state that all primary school pupils in third class and upwards should wear face coverings, as should all secondary school pupils.
The guidelines, which are not legislation, also include exceptions to these rules and pupils who have difficulty breathing or other medical conditions, pupils who are unable to remove face coverings without assistance, and/or pupils who have special needs and who may feel upset or uncomfortable wearing a face covering do not need to do so.
The Department of Education has stated that, in most circumstances, in order to avail of any of the exceptions, a parent or guardian must provide a medical certificate as proof. However, the Government also recognises that schools are best placed to assess the complex needs of their pupils and therefore, each school is free to make the ultimate decision as to whether a medical certificate is required.
The Department of Education has stated that in some circumstances,
“[w]here a medical certificate is not provided that person (staff or pupil) will be refused entry to the school”.
This exact stipulation is not provided for in law.
When a pupil is suspended from school for a period of time or permanently expelled, whether that decision is lawful or not will depend on the circumstances of that particular case, including the decision-making process undertaken by the school and the reasons for its decision. If you believe that a decision to not permit your child to enter their school is unlawful, it is recommended that you seek legal advice.
Any person arriving into Ireland from abroad, either via an airport or a port, must complete a passenger locator form. The form must be completed 72 hours prior to arrival in Ireland, and requires passengers arriving here to provide details of where they are travelling from and where they will stay after their arrival.
There are a number of exceptions to this rule including: for example, those who pass through an airport or port and do not leave that airport or port before travelling on to another country; drivers of heavy goods vehicle and other categories of “international transport worker” who hold valid certification; and/or those working on planes and ships including pilots, maritime masters and crew.
Those travelling from Northern Ireland, who have not been overseas in the 14-day period prior to entering Ireland, do not have to complete a passenger locator form.
In order to enter the State, passengers arriving into Ireland are required to either provide:
Vaccination status and entry into Ireland
The term “vaccinated person” is defined in legislation.
The Government has summarised the requirements which have been in place since 1 February 2022 as follows:
A list of vaccine products accepted by the Irish Government, and the dose required in order to be considered as fully vaccinated, can be found on the gov.ie website.
Passengers who arrive in Ireland and who are unable to demonstrate proof that they are a vaccinated person or that they have recovered from Covid-19 in the past six months, and who do not have evidence of a “negative” or “not detected” PCR result may be subjected to prosecution and found guilty of a criminal offence.
The penalties that may be imposed on a person who is found guilty of a criminal offence in these circumstances include a fine not exceeding €2,500 or a term of imprisonment not exceeding six months, or both.
The Constitution requires that any law enacted by the Oireachtas or any legal rules introduced by a government minister in line with their powers must conform with the requirements of the Constitution.
All laws, including those that provide for the restrictions and requirements in respect of international travel and the wearing of face coverings (as set out above), are considered to meet the requirements of the Constitution unless a court deems that to be otherwise. This is called the presumption of constitutionality.
Where it is demonstrated to the satisfaction of a judge that a piece of legislation, or part of it, does not conform with the requirements of the Constitution, that judge may strike the entirety of the legislation down, or only the offending parts of it, resulting in it becoming invalid.
All laws are also presumed to meet the requirements of the European Convention on Human Rights (the “ECHR”), which is part of Irish law insofar as is provided for in the European Convention on Human Rights Act 2003 (the “ECHR Act”).
Section 5 of the ECHR Act 2003 provides the High Court, the Court of Appeal and the Supreme Court (known as the “Superior Courts”) with the power to declare that an act of the Oireachtas or a section of it is incompatible with the ECHR. When the Superior Courts declare that legislation is not compatible with the ECHR, the law remains in place and it then falls to the Government to decide what steps to take.
If a person is able to demonstrate that any of the legal rules outlined above may, or already have, negatively impacted them, they may be able to challenge the legislation by instituting court proceedings. IHREC recommends that any such persons seek legal advice prior to doing so.
The Constitution provides that the law must treat all citizens equally, and any legislation or legal rules have to satisfy this requirement. However, laws can still take account of certain differences in individuals’ capacities, for example, to make accommodations for persons with disabilities. As set out above, the law in respect of the wearing of face coverings in certain settings includes a number of exceptions, including where a person is unable to wear a face covering due to a medical condition or disability.
The Equal Status Acts 2000-2018 (“ESA”) which prohibits discrimination against certain categories of individuals and groups, applies in schools, and in any place that sells goods that are available to the public or that provides services to the public.
In Irish law, discrimination will be found to occur where a person (who is member of a protected group) is treated less favourably than another person (who is not a member of a protected group) has been or would be treated in the same or a similar situation. The protected groups are as follows:
The ESA addresses:
The law in relation to discrimination does not prohibit schools, and suppliers of goods and services, including airports, from abiding by other laws. In fact, the law in relation to discrimination as set out in the ESA, clearly states that nothing contained in that legislation should be taken as preventing such people or institutions from complying with other laws.
The current public health laws appear to, for example, place an obligation on taxi drivers to ensure that their passengers wear face coverings. A taxi driver who refuses to permit a person to enter their vehicle without a face covering, may be acting in accordance with the law, unless the person wishing to enter satisfies one of the exceptions outlined above. Where a person satisfies one of the exceptions, for example, if they cannot wear a face covering because they have a disability, this may amount to unlawful discrimination.
The Constitution places an obligation on the State to provide free primary education to all children, appropriate to their needs. This right is not enjoyed by people over the age of 18.
If you believe your right or your child’s right to free primary education has been breached by measures put in place by the Department of Education and instituted by a school, IHREC recommends that you seek legal advice.
The right to privacy is not explicitly referenced in the Constitution, but the Courts have looked to the wording of other parts of the Constitution and decided that the right is contained within other parts of that document.
The ECHR also provides for the right to privacy, but there are circumstances in which the State can be legally permitted to interfere with this right, including when it is necessary to protect public safety, health, and/or the protection of the rights of other people. Any interference must be provided for in law, and the interference must not be any more than is necessary to achieve the objective of, for example, protecting public health.
Decision-making in relation to medical treatment is an aspect of the right to privacy, this includes whether a person wishes to or, indeed can, have a Covid-19 vaccination.
The legal rules in relation to face coverings may give rise to novel privacy issues, which have not been fully dealt with by the Courts. The requirements that people wear face coverings in certain settings, unless they fall within one of the exceptions provided for in the law, will require them to disclose private information in relation to themselves including, in some instances, medical information.
A privacy issue that may arise as a result of the rules in respect of travel include the fact that digital mobile apps (such as the EU Digital Covid Certificate) will store personal information in respect of persons using it. However, the EU Digital Covid Certificate is only one of a number of ways in which proof of vaccination or recovery can be demonstrated upon arrival in Ireland, and people have a certain amount of freedom in respect of the proof of vaccination they provide.
The travel restrictions and requirements which are currently in place do not appear to impact upon persons’ decision-making in relation to their medical treatment. Those who are able to demonstrate that they are vaccinated persons or have recovered from Covid-19 in the past six months may enter Ireland without any further requirements being imposed on them. However, it is also the case that those who do not wish to obtain a Covid-19 vaccination may enter into Ireland so long as they can demonstrate that they have obtained a PCR test which has returned a “negative” or “not detected” result within 72 hours of their arrival.
As set out above, some of the venues in which the majority of people will have to wear face coverings now include government buildings and the offices of local authorities.
As well as not being allowed to unlawfully discriminate against people and/or not unlawfully breach peoples’ rights, public bodies such as government departments and local authorities have an additional obligation described as the “Public Sector Equality and Human Rights Duty”.
This duty means that public bodies have a responsibility to promote equality, prevent discrimination, and protect the human rights of employees, customers, and service users.
Irish citizens have a right to enter into their home country.
In addition, Ireland is a Member State of the European Union (the “EU”), and the State must therefore abide by EU law.
EU law requires that all citizens of Member States and legal residents be able to move between EU member states freely.
In some very limited circumstances, it may be lawful for EU Member States to limit or restrict citizens’ enjoyment of their right to free movement.
One of those circumstances includes where it is necessary to restrict the right in circumstances where there is a disease with epidemic potential (as defined by the World Health Organisation) – Covid-19 falls within this classification. The impact of any restrictions must be no more than is necessary and proportionate.
If you believe your right to free movement has been breached, you may wish to consider instituting court proceedings in respect of that violation. It is recommended that you seek legal advice before taking any such action.
If a person believes their rights (other than those protected by the ESA) have been breached or that the legal rules currently in place do not conform with the requirements of the Constitution or ECHR, it may be open to them to institute a legal challenge.
There are two ways by which they could do so:
Judicial review is a mechanism whereby an application is made to the High Court to challenge a decision and/or the decision-making process of administrative and public bodies. Generally, applications for judicial review must be instituted within 3 months of a decision having been made, but some applications for judicial review in respect of immigration matters must be made in a much shorter period.
Plenary proceedings are issued in the High Court where there is a real dispute between the parties and/or the amount of the plaintiff’s claim is not specific or easy to calculate. When a plenary summons is issued, the next step is for the parties to exchange pleadings, for example, a statement of claim and defence. Eventually, the case will be given a date for a trial and there may be evidence given by witnesses.
IHREC recommends that anyone who believes their legal rights have been infringed by a decision and/or the application of the legal rules in respect of the Covid-19 pandemic should seek legal advice as soon as possible.
If a person believes they have been unlawfully discriminated against, in breach of the ESA, there are two forums for redress depending on the situation.
Generally, when a person believes they have been subjected to discrimination by a person or institution that supplies goods and services, they may institute a complaint at the Workplace Relations Commission.
Find out what is involved in submitting a claim to the WRC.
If the discrimination occurred in or at the point of entry to a licensed premises, in other words an indoor facility that serves drinks that include alcoholic drinks and which may or may not serve food, then proceedings should be instituted in the District Court. The complaint mechanism is governed by section 19 of the Intoxicating Liquor Act 2003 (the “ILA”), and a complainant can institute proceedings by filing a court form – “Form No. 80.5″
IHREC recommends that you may wish to seek legal advice before instituting a claim under the ESA and/or ILA.
The Ombudsman has the power to and is tasked with examining complaints with regard to a range of public bodies. Find out how to make a claim..
Generally, the Ombudsman cannot investigate decisions or actions of public bodies if they are the subject of litigation, unless there are special circumstances which would make it proper for them to do so.
The Ombudsman may make recommendations in respect of the decision(s) or action(s) of public bodies, he has no power of enforcement.
The Ombudsman for Children or the Office of the Ombudsman for Children (the “OCO”) in Ireland is a statutory office established by the Ombudsman for Children Act 2002. The OCO promotes the rights and welfare of children through a number of processes, for example, amongst other things the Office provides advice to ministers of government in respect of policy and/or promotes awareness among the public of matters relating to the rights and welfare of children.
The OCO also has the power to investigate the actions of public bodies, including schools, in respect of their dealings with children. Matters that relate solely to actions taken in respect of a child will usually fall within the remit of the OCO, as opposed to the Ombudsman.
The OCO can make recommendations but also has no power of enforcement.
As an individual, you are entitled to raise a concern with the Data Protection Commission (“DPC”) in relation to the manner in which an organisation has handled your personal data.
Your Rights,
Irish Human Rights and Equality Commission,
16-22 Green Street,
Dublin 7.
Information edited on 8th February 2022