e Law and Covid-19A Whole New (Legal) World: T

A Whole New (Legal) World: The Law and COVID-19

Olivia Moore JS Law and Political Science

Te unprecedented Covid-19 pandemic has presented incredible challenges to governments around the world as they attempt to respond by adopting strict measures to prevent the spread of the virus. Ireland has been no exception. Te government has endeavoured to respect citizens’ fundamental rights and freedoms, as well as equally to respect the rule of law, in the urgency of their response. Tis has undoubtedly been no easy task, as a very fne balance must be struck: stringent actions must be implemented for the protection of public health and society, yet human rights must not be infringed upon. All the while it remains vital that public trust and compliance be maintained. And what tool more apt than the law to facilitate this balance? As life ground to a halt, legal development soldiered on. In fact, it did more than that - it actually acted as the standstill’s trigger. Troughout the timespan of the pandemic, we have experienced constitutional challenges, emergency legislation, special court procedures and so much more. A capsule look at some of the major legal progress from And what tool more apt than the the past few months refects the extraordi- nary nature of the times we live in, and their law to facilitate this balance? consequences in law. Two emergency and absolutely remarkable Acts of the Oireachtas As life ground to a halt, legal were enacted in March in response to the Covid-19 pandemic. Tese were the Health tection and other development soldiered on. (Preservation and ProEmergency Measures in the Public Interest) and the Emergency In fact, it did more than that - Act 2020 (the frst Act) Measures in the Public Interest (Covid-19) Act). Both enacted re- it actually acted as the standstill’s Act 2020 (the second cord measures in terms of both restriction and other context, would trigger. intervention that, in any be seen as completely unacceptable in a de- mocracy governed by the rule of law.

Te frst Act contained the framework for the lockdown measures in Ireland and broadly implemented emergency international law in the form of the WHO International Health Regulations (IHR) of 2005 (as amended in 2016). Tis included unparalleled restrictions on the free national and international movement of persons and freedom of assembly, including religious and secular life events and ceremonies. Tis legislation also imposed the complete shutdown of all retail outlets apart from food outlets, and contained enforcement mechanisms such as police powers for criminal prosecutions, fnes, and possible imprisonment.

Te second Act addressed the necessity of signifcant emergency fnancial and other regulatory interventions, in an attempt to alleviate the consequences of the lockdown enacted in the frst Act. Tis included wage subsidy arrangements in order to continue employment for businesses disrupted by lockdown and enhanced social security payments for those “furloughed” as a result of lockdown. By extending the period of validity of certain licences, it even amended the Residential Tenancies Act 2004 that prohibited serving a notice of termination to tenants of a dwelling and prohibiting rent increases on dwellings for a period of three months.

Unsurprisingly, these restrictions and interventions were not duly accepted by all. Legal backlash prevailed in the form of the court case O’Doherty and Waters v Minister for Health and Ors, in which the two applicants, both former journalists, challenged the validity of these two Acts of the Oireachtas. O’Doherty and Waters claimed that this legislation and the manner of its enactment were repugnant to several Articles of the Irish Constitution, including the right to travel, the right to bodily integrity, and particular family rights.

Te applicants relied on Article 40.3 of the Irish Constitution, which concerns the personal rights of the citizen. It provides that the State guarantees “in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen” and to, in particular, “by its laws protect as best it may from unjust attack” as well as vindicate the “life, person, good name, and property rights of every citizen”. It must be noted that the right to “bodily integrity” is seen as an unenumerated right under Article 40.3. Te applicants also relied on Article 41 of the Constitution which concerns the Family, providing that the State identifes the family as “the natural primary and fundamental group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”. Te central argument of the applicants was that the frst Covid-19 Act was a disproportionate attack on the personal rights of citizens under Article 40.3 and of the rights of the family under Article 41. However, Judge Meenan of the High Court rejected these challenges, accepting that the rights in Article 40.3 and 41 were in fact engaged by the frst Covid-19 Act. Firstly, both Covid-19 Acts contain preambles that refer explicitly to the Constitution and its infuence on their enactment, namely “the constitutional duty of the State to respect and, as far as practicable, by its laws to defend and vindicate the rights of citizens to life and to bodily integrity”. Tis directly indicates Article 40.3, the Article in question. Furthermore, although the pandemic-induced restrictions have interfered with normal family life, this was not a breach of Article 41. Te applicants were also deemed to have failed to reach any evidence-based threshold to support their claims. Te High Court commented that the applicants “who have no medical or scientifc qualifcations or expertise, relied upon their own unsubstantiated views, gave speeches, engaged in empty rhetoric and sought to draw an historic parallel with Nazi Germany, a parallel which is both absurd and ofensive. Unsubstantiated opinions, speeches, empty rhetoric and a bogus historical parallel are not a substitute for facts...” Te Court concluded that O’Doherty and Waters had not made any arguable case in support of their claim that the frst Covid-19 Act and its regulations were unconstitutional. It is suggested that this case’s response to the stringent new regulations brought about by the exceptional climate set the scene against further criticism. Arguably the strongest and most condemning argument that can be made against new legislation – that it is unconstitutional – failed to be an accurate argument by which to revoke it. Te new measures were efectively deemed constitutional, appropriate and ultimately necessary in the new Covid-19 environment; a fnal curtain on the counterargument of “sensationalism”. And not only did the pandemic infuence the content of the law – it also had a signifcant impact on the actual operation of Irish courts. Remote court hearings were quickly implemented online, and court rooms were adapted for in-person hearings in conformity with Covid-19 health requirements. Video conferencing and socially-distant physical trials have taken place in the Supreme Court and Court of Appeal. Meanwhile, many cases in the lower courts have been adjourned unless found to be urgent, and written judgments of all courts are now delivered by email to each party. Te crisis is changing how the law is done in Ireland, and perhaps maybe will continue to do so in the foreseeable future. It is indisputable that life over the last few months has been anything but ordinary, something clearly refected in Irish law. Te legal world has fought hard to keep pace with the rapid changes to regular daily life – be it law frms turning remote, online courts working of emailed documents, legislation drafed in record time, or constitutional challenges of unprecedented restrictions on our usual rights. A year ago, so many of these legal developments and new regulations would have been unfathomable. But, as they say, extraordinary times call for extraordinary measures.

Making (Up) the Grade

Lucy Mockler JS Law Editor’s Note: This article was written prior to the release of the Leaving Certificate results on September 7 2020.

Te global health emergency caused by the Covid-19 pandemic has utterly transformed the world we live in. Businesses and institutions have been forced to adapt to an online existence, with remote working becoming an ever more efcient and sustainable reality. While this may ofer a practical solution to those with settled lives and careers, what lies ahead for our students?

Te last few months have proved difcult for all students who have grappled with new modes of online learning. However, it is widely agreed upon that the students lef in the most precarious position were those preparing for State examinations. It has been a tumultuous journey for the candidates of the 2020 Leaving Certifcate in particular since it was announced on 8 May that the examination would be cancelled and the concept of “calculated grades” frst emerged. Briefy, calculated grades refer to the alternative marking system devised by the Department of Education. It entails the awarding of estimated percentage marks to students in each subject and is multifaceted. First, an estimated mark is provided by the subject teacher. Next, an “alignment process” within the school occurs, whereby students are ranked within their class groups according to these estimates. As a fnal step, a “standardisation process” is carried out by the Department.

Te primary issue with the system is the potential for inequality. Not all candidates attend a conventional school. An increasing number of students choose to attend grind schools, and a further class of candidates, albeit a small fraction, are educated at home. To allow for the inclusion within the system of so-called “out-of-school learners”, the Department published a guide to calculated grades specifcally for this group following the earlier release of the guide for schools.

Te initial awarding of an estimated mark necessarily requires that the teacher involved rely solely on their professional judgement. A familial relationship with a student is therefore considered a confict of interest and renders it inappropriate for that teacher to give an estimation. Such a confict arose in the case of Elijah Burke. Mr Burke, a home-schooled student from Mayo, launched judicial review proceedings against the Department of Education afer it refused to accept estimated marks from his tutor, his mother, due to the fact that maintaining this would undermine the integrity of the calculated grades process.

Te case went before Judge Meenan in the High Court. Mr Burke argued the exclusion of home-schooled students breached his rights under Article 42 of the Constitution. It was submitted on his behalf that there was an established constitutional right to be educated at home. Accordingly, home-schooled students should not be disadvantaged in comparison to students educated in schools in the obtaining of a calculated grade. Mr Burke sought not to challenge the lawfulness of the system, but rather the decision to exclude him from consideration for a calculated grade. Among the arguments advanced on behalf of the Department was the fact that the scheme was an emergency response to the cancellation of the June examination and a temporary system. Mr Burke was said to be no worse of than others who may have been denied a calculated grade or received an unsatisfactory one. Such persons are entitled to sit the rescheduled examination which, subject to public health advice, will take place in November of this year. Considerable emphasis was placed on the alleged adverse consequences which would result were the Department to supply an “independent” teacher to assess Mr Burke. Te Department felt this would mark an unfair advantage as a “bespoke” service not enjoyed by all students. Furthermore, it was contended that the “body of credible evidence” Ms Burke possessed – including end-of-term assessments and mock papers in line with the

traditional State curriculum – to facilitate the provision of a calculated grade to her son could not be deemed evidence from “an appropriate source”, due to the nature of their relationship. In his judgement, Judge Meenan referred to the difculty of devising a system that extends the same degree of fairness and anonymity as the Leaving Certifcate. Ultimately, he based his decision on the principles laid down in State (Keegan) v Stardust Compensation Tribunal and O’Keefe v An Bord Pleanála, as endorsed by Judge Fennelly in Meadows v Minister for Justice. In that case, it was reafrmed that a Court may not interfere with the exercise of administrative discretion, save where it is satisfed, in light of the relevant evidence, that such “is unreasonable in the sense that it plainly and unambiguously fies in the face of fundamental reason and common sense.” Whilst acknowledging that it would be inappropriate for a conficted teacher to give an estimated mark, the learned judge was clear that a student should equally not sufer for having been educated by a relative. He noted that the possibility of certain conficts of interest was contemplated by those who drafed the respective departmental guides. He further noted that the contrast in the approach to conficts for school students and out-ofschool learners was “very stark.” As regards the former, the conficted teacher Businesses and institutions have “may still need to assist in the process” by supplying fac- priate arrangements” will been forced to adapt to an online tual information; as “approfurther be made to provide the student with an esti- dent can therefore remain existence, with remote working mated mark, the school stuin the system. For the “out-ofschool” learner, no such becoming an ever more efficient accommodations are made. Once a confict of inter- est arises, the applicant will invariably be denied an and sustainable reality. estimated mark and excluded from the system. Te judge observed While this may offer a practical that in either setting, candidates, through no fault of He therefore reasoned that solution to those with settled lives their own, face a similar issue. both “should have the beneft of a similar solution”, and and careers, what lies ahead for called the absence of such a practical result “patent unfairness”. He rejected the idea our students? that a non-conficted teacher giving an estimate to an out-of-school learner is doing anything “materially diferent” from that of a non-conficted teacher engaged in the same exercise in the school context. Te former arrangement therefore confers no unique advantage to out-of-school learners, as the Department had previously suggested.

Te contention that there was a dearth of “credible evidence” concerning Mr Burke was similarly dismissed. Te Court stated that a conclusion that evidence is not satisfactory can only be reached “when such evidence has been looked at” - which never occurred in the case at hand. Sitting the replacement exams, tentatively scheduled for November, was not accepted as a remedy. Te Court remarked that it would cause Mr Burke to delay the commencement of his degree course by one year, which would be detrimental to him. By way of relief, an order of certiorari was granted - quashing the decision refusing to provide Mr Burke with a calculated grade. Furthermore, the Court granted a declaration that the refusal to provide such where the student is home-schooled by a parent and thus has a confict of interest is “arbitrary, unfair, unreasonable and contrary to law.” Speaking to RTÉ News, Mr Burke said that he was delighted by the outcome, for himself and for all other “out-of-school” candidates who had been overlooked by the new system. Te judgement spells victory for those students in similar circumstances, and remedies the glaring faults within the system. However, with no previous record to go on, we still do not know how successful this “emergency response” will be.

Tere is remaining concern over whether high-achieving students will be marked down for signifcantly outperforming classmates and their school’s historic results record. Such questions are even more pertinent in light