Constitutional Challenges to Emergency Legislation in the Time of COVID-19
10 June 2020
Ireland, like many countries worldwide, enacted emergency legislation to put in place measures to stop and reverse the spread of COVID-19 and to provide a statutory underpinning to the State’s response. The emergency measures are unprecedented in modern peacetime, and the significant restrictions introduced reflect the necessity for robust action to vindicate individuals’ constitutional rights to life and bodily integrity in the face of the widespread and serious risk posed by the spread of COVID-19.
In recent weeks, the Government has unveiled its roadmap for reopening society and business. However, while lockdown measures have been loosened, considerable restrictions remain in place for individuals and businesses into the foreseeable future, and there has been much debate about necessity, proportionality, cost and benefit.
The impact of the emergency measures
The grave effects and consequences of the restrictions have been, and will be, extreme and impactful on every area of national life. For example, the COVID-19 regulations made under the Health Act 1947 impose restrictions on the movement of individuals and on social gatherings, and in effect confine individuals to their homes, save for limited purposes permitted by the State. In addition, for example, landlords of residential properties have also been prohibited from increasing rents and evicting tenants until the COVID-19 emergency is over, which for the purpose of the rent restrictions is specified as being 30 June 2020, and businesses have been required to limit or entirely cease trading until the permitted, phased, lifting of restrictions applies in their particular cases.
The introduction of these measures has raised both fiscal concerns and concerns regarding the infringement of constitutional rights. In particular, the emergency measures have clearly impacted on the freedoms of assembly, association and movement as well as on property rights and the right to earn a livelihood.
While the measures appear to have been successful in curbing the spread of COVID-19, they have also had a detrimental impact on jobs, businesses and the economy, with significant job losses, the closure of otherwise-viable businesses, limitations imposed on the extent to which certain businesses can operate and indeed requirements that property must be used in particular ways.
Legal action for constitutional infringements
In light of the considerable infringement on constitutional rights, in particular property rights and the right to earn a livelihood, questions arise as to whether these restrictive measures can be challenged and/or compensation can be awarded in respect of losses caused by the State measures.
Proportionality and necessity of the emergency measures
In examining this issue, it is important to note that, while the State must respect, defend and vindicate the personal and property rights of citizens, and protect property rights against unjust attack, the constitutional rights at issue are not absolute. In particular, they can be balanced against what is required to serve the common good. As a result, the State can impose limitations on those rights in response to the COVID-19 situation. However, any such measures must be necessary, rational and proportionate to the challenges posed by COVID-19, based on evidence, and implemented by means of the least restrictive measures necessary to protect public health.
In considering any claim for infringement of constitutional rights, such as property rights and the right to earn a livelihood, the courts will likely consider:
The objective of the action and whether it is legitimate and important and warrants interference with constitutionally-protected rights
Whether there is a rational connection between the objective and the means chosen to realise it
Whether the State action is necessary to achieve the objective, and
Whether an appropriate and proportionate balance has been struck between the public interest/common good and the particular impact on individual rights and interests
The understanding of what is necessary and proportionate for the common good is context- specific. Importantly also, an assessment of the proportionality of the State’s measures can shift over time as more evidence comes to light. It is also likely, however, that the courts would afford considerable deference to the legislature and responsible ministers in deciding what measures were necessary and proportionate to respond to the COVID-19 situation, and experience has shown that the courts are reluctant to engage in a second-guessing or re-weighing of these matters, and will at times consider this to be a breach of the separation of powers doctrine.
Compensation for interference with property rights
The courts have previously confirmed that compensation may be recovered where there has been disproportionate interference with constitutional rights (for example, property rights).
It has also been held that even if the courts determine that the common good requires some delimitation of an individual or company’s property rights, the legislative measures can constitute an unjust attack on those rights unless compensation is available/paid.
It is, therefore, arguable that even if the courts consider that the relevant emergency measures serve the public interest in curtailing the spread of COVID-19, compensation may have to be made available to those whose property rights have been infringed. However, it is important to note that although not compensating individuals or businesses entirely for the losses the restrictions may impose, the provision of various State supports that have complemented the restrictions may be viewed as striking an appropriate balance where there has been an infringement on property rights.
The measures introduced in response to the COVID-19 pandemic reflect the gravity of the public health crisis affecting the country. However, even in this time of emergency and crisis, the State response must only limit the rights and freedoms of individuals and businesses to protect public health to an extent that it is necessary, rational and proportionate.
Those who consider that their property rights have been unduly infringed may be able to challenge State measures which do not meet these tests. In these circumstances, the courts could declare certain, or all, the emergency legislative measures as unconstitutional and/or require compensation to be payable.
Given the extreme nature of the crisis and the measures required to tackle it, and given the Courts’ tendency to give a wide margin of appreciation to the legislature and executive in such cases, the chances of success would be speculative. However, each case would have to be assessed on its own specific facts, circumstances and merits. In concluding, we note that a crowd-funded challenge to State-imposed restrictions is currently under way in the UK, albeit under a somewhat different constitutional and legal framework - see R (Dolan) v Secretary of State for Health & Social Care and Secretary of State for Education.
For more information, contact a member of our Public, Regulatory & Investigations team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
 The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020, which amended the Health Act 1947, the Health Act 1947 (Section 31A -Temporary Restrictions) (COVID-19) Regulations 2020 (S.I. No. 121/2020, No. 128/2020, No. 153/2020 and No 174/2020) and the Emergency Measures in the Public Interest (COVID-19) Act 2020.