Legal experts find significant lack of transparency around key COVID-19 decisions taken in Ireland

Posted on: 04 August 2021

Experts from the COVID-19 Law and Human Rights Observatory at Trinity pinpoint a significant lack of transparency in many key decisions made by government during the pandemic in a comprehensive report, published today.

In the report (Public Health Law During the COVID-19 Pandemic in Ireland), the experts address many different facets of life impacted by such decisions, including the impact on people living in prisons and direct provision centres, and on policies involving vaccination and on Ireland’s approach to counting deaths from COVID-19.

The general lack of transparency, they found, ranged from who actually made key decisions to whether certain public health measures were legally enforceable, and included the sources of information used to support decisions. In the report, they make 16 specific recommendations for improvement.

Key findings [and recommendations]

• The relationship between the government and NPHET—and the locus of power in that relationship—isn’t always clear [Government should clarify its relationship with NPHET and ensure democratic oversight of public health measures]

• Prison regimes have undergone several changes (such as reduced visits, and access to showers), many of which pose challenges for protecting rights [The prison service should make public, in a timely fashion, the measures adopted by the service during the pandemic, and provide prisoners with timely information about the pandemic and future public health crises]
• Covid-19 has spotlighted the many deficiencies of the direct provision system [Government should end direct provision without delay]
• The State may be legally entitled to adopt mandatory vaccination if a significant proportion of the population declined vaccines [Government should not make vaccinations mandatory unless there is clear evidence of the harm caused by individuals refusing vaccination]
• Ireland’s system for registering deaths is too slow [To ensure timely data are available, funerals or cremations should not take place until a death is registered]

 Sarah Hamill, Assistant Professor in Law at Trinity, said:

“The overarching finding of this report is a significant lack of transparency in how and why important decisions were made during the COVID-19 pandemic in Ireland.

“Transparency and clarity are key aspects of public health governance and one of our recommendations of this report is the need for far more. If we don’t have clear lines of decision-making and accountability, and a clear sense of the power resting with the government, then the idea that we can have even notional democratic oversight for these powers seems very remote. This is undoubtedly a cause for concern.”

Alan Eustace, Scholar and PhD candidate in Trinity’s School of Law, added:

“Pandemic response requires not only proportionate restrictions on people’s behaviour but also economic and legal supports that will enable people to comply with those restrictions. We therefore recommend changes to the law on working remotely and social welfare supports, in order to allow people to follow public health restrictions and guidelines.”