COVID-19, law and human rights

The Winter 2021 issue of Studies is mostly given over to a set of essays on government action relating to the pandemic and the legal and human rights issues it has raised. The authors of these essays are all associated with the School of Law, Trinity College Dublin. In mid-2020, the School established the COVID-19 Law and Human Rights Observatory in order to provide academic commentary on Ireland’s legal response to COVID-19 as it evolved. “Universities play a vital role in ensuring that laws are effective,” the Observatory notes on its website, “but also that rights and fundamental freedoms are protected insofar as possible, even in emergency circumstances.” Since then the Observatory has amassed a substantial body of material – blogposts, articles, reports, working papers, and podcasts.

In their foreword to the contributions of the COVID-19 Observatory to Studies, the primary instigators of this initiative, Professor Oran Doyle and Dr Conor Casey, explain the Observatory’s work:

We published blog posts that tracked the day-to-day changes in the law, while drawing together a range of international, comparative and interdisciplinary perspectives on those legal developments. We produced reports that critically analysed different aspects of the State’s legal response to COVID-19, including public health issues, supports for families and businesses, human rights and equality issues, labour law issues, and digital privacy.

Doyle and Casey, accompanied by Dr David Kenny, also write one of the essays in the Studies selection, ‘The Irish state’s COVID-19 response and the rule of law: causes for concern’. In it they acknowledge that assessing whether the government’s response to COVID-19 has been optimal or reasonable is a deeply complex moral, political and public health question. Nevertheless, they are happy to judge that the Irish state proved efficient at protecting life, health, and socio-economic stability:

The legislature, despite not housing a government majority, passed robust emergency legislation quickly and with some scrutiny. The government utilised these powers decisively, and with consultation with relevant expert advisors. This is no small thing.

That said, however, they note the more troubling aspects of the “expanded government discretion” during the public health emergency. In particular they draw attention to ways in which the rule of law, a foundational legal concept which recognises individual dignity and rejects arbitrariness, has been compromised. Two sets of instances are identified:

First, official government statements have provided misleading accounts of what the law requires and have regularly blurred the distinction between the regulations and public health advice. This made the actual content of the law unclear to many people. Secondly, regulations have been drafted in a way – due to lack of clarity or extensive reliance on the idea of a ‘reasonable excuse’ – that makes it hard for people subject to the law to know whether conduct is permissible or not.

In another essay from the Observatory team, Professor Mark Bell assesses the impact of remote working, a greatly more widespread practice on account of pandemic conditions. He acknowledges that greater flexibility in working arrangements has been a benefit to some people, providing some relief from punishing commutes and helping some people to reconcile their work life and their caring responsibilities, particularly as these relate to school-going children. But the downside of this change in work culture have been considerable:

Yet remote and mobile working was also associated with higher levels of work intensity, linked to factors such as a culture of permanent connectivity, as well as higher weekly working hours and reduced duration of rest periods. Those working regularly from home were much more likely to report that they worked in their free time compared to those who worked at the employer’s premises. There was also evidence of impacts upon health for those who were highly mobile or regularly worked from home. This was linked to higher rates of stress, eyestrain, headaches and sleep disorders.

Bell frames the overall issue in terms of ‘integral ecology’ as described by Pope Francis in Laudato Si’. Francis, Bell notes, criticised the “frenetic activity” and the “more intensified pace of life and work” which often characterises modern life and is often detrimental to ‘human ecology’, which requires a work-life balance, space for “serene reflection” and dialogue, and a right to rest.

Other contributions from the Observatory include Dr Patricia Brazil’s account of how the pandemic has brought the deficiencies of the system of direct provision for asylum-seekers into even sharper relief than heretofore, as well as Drs Alan Brady and James Rooney on how the state’s management of school closures during lockdown have adversely affected more vulnerable children, especially those with special needs or from disadvantaged backgrounds.

Another contribution, from Hilary Hogan, presents an incisive and revealing look at a sea change in attitudes in the European Union, one which shows up a dangerous democratic deficit which the Union must address. The pandemic made it essential for the EU to move away from the rigid ‘ordoliberalism’ that it had clung to for many years in spite of the damage it did to member nations, especially by presenting austerity as an economic necessity.

We are witnessing an abandonment of the principles Europe claimed it could not budge from during the Eurocrisis. This suggests that the European Union is beginning to acknowledge what many have argued: its underpinning economic ideology does not work, at least not without inflicting immense human suffering. Yet it is important to stress that the European Union’s fundamental problem remains intact. It has always prioritised what it considers to be effective governance over democratic representation as its primary means of legitimation.

The current issue of Studies also features a lengthy review of Derek Scally’s important book, The Best Catholics in the World, by Bruce Bradley SJ. Fr Bradley finds much to admire in this work. He sees it as a ‘brave enterprise’ that stands apart from other recent critiques of the Catholic Church in Ireland mainly by being the work, not of a hostile critic, but of “something much rarer in contemporary Ireland, ‘a grappling Catholic’, who is willing to acknowledge that, as he puts it, “something about this past is gnawing at me'”.

This doesn’t, as Fr Bradley is quick to note, make Scally a reliable voice on all matters. His apprehension of the theological culture of the Church as well as the sociological culture of the religious orders is quite imperfect. And more importantly, he has in common with fiercer critics the tendency to see the Church as an outside entity, an alien force, a ‘them’ who have come among ‘us’ as colonisers. But none of this takes from the substantial value of the work. Scally speaks because he must. ‘We must talk too,’ Fr Bradley concludes, ‘and this book should stimulate some much-needed conversation’.