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Q&A: Your questions about Ireland's Covid-19 restrictions and health advice answered

TRAVEL

There was discussion earlier this week about restrictions imposed on tourists who travel into Ireland, particularly those coming from countries like the US, where there is a high level of coronavirus transmission.


Some were concerned that visitors were not adhering to the 14-day quarantine advice and there has been confusion about whether or not this is mandatory. So let’s clear that up: It is not mandatory.
However there are some requirements for arrivals, as well as public health advice.
By law, if a person arrives in Ireland from any other country they will be required to fill in a passenger locator form. This form logs details like phone numbers and the address the person intends to reside during their stay.


There are penalties attached to this requirement. If a person provides false or misleading information – like a different name or a false address – or if they fail to tell gardaí or border management agents they have moved accommodation during the 14 days after their arrival, they could face a €2,500 fine or a prison term of up to six months.
But there is no requirement for a tourist to remain in their room or their hotel for their entire stay. They are asked by health authorities to restrict their movements for 14 days of their stay (if they are staying here more than two weeks) but it is not legally required.
This means that if a tourist arrives in Ireland, provides a correct address for the accommodation they plan to stay in for the entire duration of their stay and spends their time socialising in the community, they are not breaking the law. They would be failing to follow public health advice, but they are free to make that decision.

 

In short: It is not mandatory for visitors to Ireland to quarantine for 14 days. It is also not mandatory for them to restrict their movements, but authorities have asked them to do so. It is mandatory for them to fill out a passenger locator form, and to tell authorities if they change their accommodation.


Does the ‘non-essential travel’ advice apply to countries that are on the green list?


On Thursday, Dr Glynn acknowledged the messaging around travel is confusing. We know that the government’s green list of countries considered safe to travel to will be published on Monday.
However, readers will also have heard health officials continuing to advise against ‘non-essential travel’ – in other words, holidays – abroad. People have been encouraged to holiday at home in Ireland instead this year.
This is where regulations versus advice creates confusion.
There’s nothing in law to stop people booking holidays abroad – in a green list country or any other. And currently the 14-day quarantine on return from that holiday is not mandatory.
But the advice is to holiday in Ireland instead to minimise risk.

Source: Sam Boal/RollingNews.ie
Source: Sam Boal/RollingNews.ie

This week Dr Glynn said:
NPHET is very clear that for this year in the context of a global pandemic, if we can stay at home and holiday at home in a country where we know what the guidance is, we know what the regulations are, we know what people are being asked to do, we understand the disease parameters, it’s better if possible – it’s not easy – but if you can please holiday at home.
“The green list is going to be a small list of countries that have a similar profile to ourselves that are in broad terms as safe as ourselves.
“And from a public health perspective we wouldn’t have undue concern about someone going to one of those countries and coming back, but from our perspective overall, we’re saying for this year, from a public health perspective, avoid non-essential travel.
Dr Glynn said: “I accept that the message is confusing but I don’t think NPHET’s message is confusing, which is to stay at home for this year.”
He pointed out that the vast majority of countries that people in Ireland would want to go to for non-essential travel do not have similar epidemiological profiles to ourselves.
“We’d be firmly saying ‘do not go to those countries’,” he added.

 

In short: NPHET wants everyone to stay in Ireland as much as possible. Holidays do not count as essential travel. However, nobody is banned from going anywhere.


Is quarantine mandatory for the countries included on the green list? Do we know which countries will be on it?


Minister for Foreign Affairs Simon Coveney yesterday gave the first indication of what the green list may look like. He told Newstalk that the US will not be on this list and it is also “unlikely” that Britain will make the cut.
“This is not on the basis of politics, it’s on the basis of epidemiological data and numbers, so we can compare Ireland to other countries,” he said.
The European Centre for Disease Control (ECDC) recently identified a number of countries in which there is a low incidence of disease – including Ireland – such as Cyprus, Greece, Estonia, Finland and Hungary.
However countries such as Spain, Portugal and Italy that Irish holidaymakers tend to favour have a much higher incidence of the disease than Ireland.
The European Union also recently finalised a list of countries whose health situation was deemed safe enough to allow residents to enter. Those on list are: Algeria, Australia, Canada, Japan, Georgia, Montenegro, Morocco, New Zealand, Rwanda, Serbia, South Korea, Thailand, Tunisia and Uruguay.
However each member state can still make its own decisions on visitor restrictions.
The government has said visitors arriving from countries on our green list will not be expected to restrict their movements for 14 days after they arrive. But this list will be reviewed every two weeks, so that situation may change depending on changes in the level of disease in those countries.


In short: People coming to Ireland from green list countries are not required – or even asked – to quarantine or restrict their movements.
Some Irish readers living abroad are wondering whether they will be able to get back soon to visit their families.

 

“I reside in London and I am unclear if people such as myself can visit home for less than two weeks so long as we quarantine the whole time we are there. So basically if you stay at your parents’ house the whole time.”


We have already heard from the Minister for Foreign Affairs that it is “unlikely” that Britain will be on Ireland’s green list. This means the expectation on visitors from Britain to restrict their movements during their stay will remain in place. And this applies to Irish citizens too.
However, the HSE has said a person who arrives in Ireland from another country does not have to remain here for 14 days. They can take a return flight earlier than that.
They are advised to restrict their movements and follow the other public health advice for the duration of their stay.

 

In short: Advice states that anyone coming from a non-green list country, like the UK, should restrict movement for 14 days. They can leave before those 14 days are over, however.


Covid-19: Experts call for travel advice to be made into law

Difficult to determine what qualifies as essential travel, Oireachtas committee hears

Travel agents have protested outside Leinster House, claiming the industry is on the brink of collapse due to a combination of Government advice against non essential travel, the green list and the 14 day quarantine rule. Video: Bryan O'Brien
Travel agents have protested outside Leinster House, claiming the industry is on the brink of collapse due to a combination of Government advice against non essential travel, the green list and the 14 day quarantine rule. Video: Bryan O'Brien

Guidelines in relation to travel must be embodied in law if they are to be enforced on members of the public, including civil and public servants, international legal experts have said.
Speaking at a meeting of the Oireachtas committee on Covid-19 response on Wednesday morning, chairman Michael McNamara highlighted cases in which Irish civil servants, and a number of “high-profile” individuals were penalised for breaching guidelines on international travel.
He cited a case in which an unnamed public servant was requested to apologise after travelling to Spain, despite the Government advising against all non-essential travel to the country.
In response, Gianni Buquicchio, president of the Council of Europe’s European Commission for Democracy through Law (Venice Commission), and Jonathan Sumption, retired justice of the supreme court in the UK, said that guidelines, such as those on travel, are not enforceable and require “a legal basis”.
Mr Sumption said that it is not enough that people are “disciplined for failing to accept Government advice”.
“It seems to be fundamental that it needs to be embodied in law, not just under the European convention, but as a matter of basic constitutional proprietary under a common law system, such as both the United Kingdom and Ireland have,” he said.
...


State argues Covid measures do not legally restrict travel

Ryanair’s legal challenge to travel measures continues

Ryanair is challenging measures announced last July including that persons not travel outside the State save for essential purposes. Photograph: Reuters
Ryanair is challenging measures announced last July including that persons not travel outside the State save for essential purposes. Photograph: Reuters

The State has said that measures introduced by the Government in response to the Covid-19 pandemic do not impose a legal restriction on travel in and out of the country.
The measures, the High Court heard on Wednesday, are merely advisory, have been reviewed regularly, and are not binding in nature.
The State was responding to claims made by Ryanair that the measures, which the airline says amount to ‘international travel restrictions’, are unlawful and amount to a disproportionate interference in its and its passengers’ rights.
In its action against An Taoiseach, Ireland and the Attorney General the airline seeks various orders and declarations, including one setting aside the measures announced in late July.


The State respondents oppose the action and says that the measures announced are not mandatory but are advisory in nature.

 

They also claim that Ryanair has no legal basis to bring its challenge against the measures, that the courts cannot intervene with this advice and that Ryanair’s proceedings are moot or pointless.
On the second day of the action, the State, represented by Frank Callanan SC and Eoin McCullough SC, said that the airline’s description of the measures as “restrictions” was “a mischaracterisation” of what the State has done.
The airline’s claims that the measures amount to restrictions were “cynical” Mr Callanan said.
It was accepted that as part of efforts to combat the pandemic persons travelling into Ireland must fill out a form known as a Passenger Locator Form. Failure to comply with this obligation is an offence.
With the exception of regulations brought in earlier this year under the 1947 Health Act, the Government has not adopted any binding health measures regulating international travel as part of the response to the Covid-19 situation.
Information was made public by the Department of Foreign Affairs – so that individuals can make informed decisions for themselves – which does not have the force of law, it was further submitted.


Aer Lingus
In its submissions to the court, Aer Lingus, which is a notice party to the proceedings and represented by Francis Kieran BL, outlined its opposition to the measures. It supports Ryanair’s action.
It was Aer Lingus’s case that separate from Covid-19, the measures have had a serious and detrimental effect on its business and the Irish aviation in general.


Ryanair, represented by Martin Hayden SC, appearing with Eoin O'Shea BL, does not accept the State’s argument that the measures are advisory and do not restrict people’s freedoms.


Ryanair is challenging measures announced last July including that persons not travel outside the State save for essential purposes.
It is also challenging the requirement that persons returning to the State from countries not on so-called Green List to restrict their movements and self-isolate for a period of 14 days.
Ryanair claims the restrictions are also unconstitutional and breach various Health Acts, the European Convention of Human Rights and the European Charter of Fundamental Rights.
The case, before Mr Justice Garrett Simons, continues.


Die Regierung sagt selbst: nicht verpflichtend.

Airline claimed measures amounted to legal restriction on travel in and out of the country

Ryanair claimed the restrictions are unconstitutional and breached various Health Acts.
Ryanair claimed the restrictions are unconstitutional and breached various Health Acts.

Ryanair has lost its High Court challenge against travel measures introduced by the Government in the wake of the coronavirus pandemic. The airline had claimed the measures amounted to a legal restriction on travel in and out of the country. The State disputed those claims, arguing the measures are merely advisory and not binding in nature. Mr Justice Garrett Simons ruled on Friday that the Government had not exceeded its executive powers and trespassed upon the legislative power in relation to the measures. Ryanair’s action was against An Taoiseach Ireland and the Attorney General, seeking various orders and declarations, including one setting aside the measures announced in late July. This included the advice not to travel outside of Ireland save for essential purposes.
Ryanair also challenged the requirement for those returning to the State from countries not on the designated “green list” to restrict their movements and self-isolate for 14 days. The company claimed the restrictions were unconstitutional and breached various Health Acts, the European Convention of Human Rights and the European Charter of Fundamental Rights. It said the Government’s travel measures were outrageous, confusing and a detriment to both the public and its business.
The State had argued Ryanair had no legal basis to bring its challenge against the measures, that the courts could not intervene with this advice and that the airline’s proceedings were moot or pointless.
Aer Lingus was a notice party to the proceedings and supported Ryanair’s action. In his judgment on Friday, Mr Justice Simons said the Government acted lawfully in providing travel advice and public health advice during the coronavirus pandemic on a non-statutory basis.
The Government was entitled, in the exercise of the executive power, to provide such advice to the public, he said. Its entitlement had not been ousted by the enactment of legislation, such as the Health Acts 1947 and 1970. As of August 2020, the information published on the Government’s websites provided an “accurate portrayal” of the legal status of the travel advice and public health advice, the judgment continued.


“The advice to avoid non-essential travel and to restrict movements on entry to the State is just that: advice,” Mr Justice Simons said. “The Government merely requests that persons entering the State from a country not on the “green list” restrict their movements for 14 days. As of August 2020, there had been no legal requirement to do so.”

 

Where a failure to observe the advice might result in financial disadvantage for some, for example those on jobseeker’s benefit, there was a “specific legal basis for same under the social welfare legislation, which has not been challenged,” he said. The Government’s websites “do not portray the travel advice or health advice as having a legal status which it does not actually enjoy.” Mr Justice Simons said the publication of the travel and public health advice was consistent with EU law and in particular did not breach the right to freedom of movement under the Treaty on the Functioning of the EU. Ryanair had “sensibly” conceded that EU member states were entitled to derogate from EU law rights on public health grounds.
“Ryanair’s principal complaint is that, as a matter of domestic and constitutional law, the Government in publishing the impugned travel advice exceeded its executive powers and trespassed upon the legislative power,” Mr Justice Simons said. These arguments were rejected. He emphasised that Ryanair had disavowed any attempt to challenge the “underlying merits” of the travel advice, and “this judgment has nothing to say in respect of the wisdom or otherwise of the travel advice”.
“In particular, it has nothing to say on the methodology or criteria by which the ‘green list’ of countries had been prepared,” the judge concluded. He also found that the existence of a statutory requirement to complete a passenger locator form “does not have the legal effect of translating the travel advice into mandatory form.” Because it applied irrespective of whether a passenger had arrived from “green list” countries, it could not be characterised as intended to enforce compliance with the “green list”.
Among Ryanair’s other points was an argument that the travel advice was “imprecise” but the judge concluded it was clear. The evidence did not demonstrate there had been “any interference with Ryanair’s freedom to conduct its business in accordance with EU law and national laws and practices,” Mr Justice Simons said. He acknowledged that the proceedings raised “important issues as to the separation of powers” and that the terms of the travel advice were a matter of “ongoing controversy, even in their revised form”. The judge found that as Ryanair had raised arguable legal issues he was formally granted leave to bring the application, but dismissed “the substantive application in its entirety.” He proposed a costs order against Ryanair subject to submissions.


Advice vs Law: Here's how gardaí are permitted to enforce the new Level 3 restrictions

David Kenny, Assistant Professor of Law at Trinity College, says depriving gardai of Covid-19 enforcement powers could undermine the whole effort.

David Kenny Assistant Professor of Law, Trinity College Dublin
David Kenny Assistant Professor of Law, Trinity College Dublin

THE GOVERNMENT’S ANNOUNCEMENT that the entire country would move to Level 3 restrictions under the Living with Covid-19 framework came with a suggestion that this would be accompanied by additional enforcement measures.
But we now know this to be incorrect. There will be no additional enforcement: there will be additional advice.
Minister McEntee said yesterday that the Gardaí would not be receiving any new powers. The Garda Commissioner said that such powers are not necessary and that significant expansion of Garda checkpoints would suffice. We now have new regulations that, as expected, don’t provide for any changes in this respect.  
In the absence of new powers, there can be no additional enforcement, because most of the measures that exist under Level 3 regulations are not legally enforceable. All the Gardaí can do is recommend that people follow the rules. This has, unsurprisingly, caused a degree of public confusion.


Advice vs Law

 

There are three kinds of restrictions that the government is currently using to address Covid-19: advice, a “civil offence”, and a criminal offence. Advice is just that —advice—and there is no rule written down in law and, as a result, no way to enforce it.


A “civil offence”, as the Tánaiste described it, refers to a non-penal provision in the Covid regulations. This is a novel concept, not known to the law. The regulations state that a particular thing shall not be done, but there is no legal consequence—no penalty for doing it, and no way to force compliance with it.

 

A criminal offence, or penal provision, allows for people to be prosecuted for non-conformity; under the current regime, with a potential maximum penalty of a €2500 fine or up to six months imprisonment.
In the early days of the lockdown, most of the movement restrictions and other measures were binding rules, with potential criminal sanction for not following them. The Gardaí used these powers very sparingly and the public largely followed the rules without penalties being needed.
More recently, where the government has introduced legal rules aimed at controlling behaviour, they have generally made them unenforceable “civil offences”.
This is true of the two core parts of the Level 3 restrictions: the rule limiting visitors to the home, and the rule that you cannot travel from a Level 3 county to another county, or another country, without a reasonable excuse.
These rules are written down in regulations but are unenforceable. Some of the restrictions, such as limits on meeting people socially outside your home or garden, are not contained in the rules at all and are merely advice.
If the Gardaí find you breaching these rules, they have no power to intervene, unless you are breaching some other enforceable law (for example, under Public Order legislation) in taking this action.
They cannot threaten you with prosecution, with fines or other penalties, in relation to breach of Covid measures, because there are no penalties set out in law. They can only advise you of what the rules say.


Relying on public buy-in

 

In fact, very few of the Covid restrictions that apply to the ordinary citizen carry potential criminal penalties. Failing to wear a facemask in required settings can create criminal liability, as can failing to fill in a passenger locator form after travel abroad.
Otherwise, the movement and meeting restrictions carry no penalties at all, and threat of criminal prosecution is only in relation to people organising formal events or running businesses, pubs, etc.
The question is: is this enough to change behaviour? And does this put the Gardaí in a difficult situation where the public expects them to enforce these rules when they cannot?
NPHET, in its letter to the government on Sunday night, strongly implied that more active enforcement of rules was necessary. This might take the form of punishing rulebreakers, but even the threat of such punishment might be sufficient.
The public looks to the law to guide them. If a rule is binding and enforceable, and if carries the possibility of punishment, then the public might be more likely to follow this rule strictly, rather than exercising their own judgment.
Laws define the parameter of our conduct, but a law without an accompanying punishment is not likely to be taken as seriously as one which triggers a potential penal provision.  
Members of the public also rely on the Gardaí to intervene where they see breaches of rules, but the Gardaí are currently often powerless to help. Gardai are asked to pressure people at checkpoints into complying with advice, but they are not backed up in their effort with the authority of law.
This may ultimately undermine public faith in our system of rules to combat the pandemic.  
There are legal difficulties with some forms of enforcement, particularly with entering private homes. But these are perhaps not insurmountable, and enforcement powers for travel restrictions and outdoor social gatherings could be provided for in law without great difficulty.
Trying to secure compliance with public health measures with persuasion and advice is a worthwhile and admirable goal, as is the desire amongst senior Gardaí to police by consent and not alienate the population.
But, as our first experience with lockdown shows, providing enforcement powers does not mean that we have to abandon this strategy or use enforcement powers widely. Such powers like this can be reserved for extreme cases of non-compliance.
But this would give Gardaí more authority to insist on compliance and send a public message about the seriousness of these rules.


Dr David Kenny is Assistant Professor of Law at Trinity College Dublin and is a coordinator of the COVID-19 Law and Human Rights Observatory.