This blog post was originally published on the blog of the COVID-19 Law and Human Rights Observatory.

 

Conor O’Mahony, University College Cork

 

Background

The constitutionality of mandatory hotel quarantine has been a point of contention for some weeks. In February, the Taoiseach claimed that it would be unconstitutional to introduce such a scheme. In response to those claims, I wrote a blog arguing that although mandatory hotel quarantine restricts a range of constitutional rights (including, eg, personal liberty and freedom of movement), it pursues a legitimate aim and would likely be constitutional in principle, particularly “if it included some narrowly drawn exceptions to cater for cases where the impact was most extreme”. Similar points were made by David Kenny in the Irish Times.

 

There are clearly strong reasons supporting quarantine as a public health measure. COVID19 was originally brought to Ireland by travel; the second wave was caused by travel from Spain after the first wave had been suppressed; the third wave saw new variants introduced from the UK that worsened the situation; and recent outbreaks can be traced to foreign travel, including even more concerning new variants.

 

The Government dropped its claims that mandatory hotel quarantine would be unconstitutional and the Oireachtas enacted the Health (Amendment) Act 2021 in March. The Act empowers the Minister for Health to make regulations designating States as being subject to the requirement to quarantine; at the time of writing, 71 countries/territories are so designated. The Act also defines a range of “exempted travellers”, and empowers the Minister to make regulations adding to that list.

 

Within weeks of the commencement of mandatory hotel quarantine, multiple cases have generated courts proceedings challenging the legality of the detention in quarantine and raising the question of whether the scheme contains sufficient flexibility to avoid the harshest impacts. Two people have been released from quarantine and their challenges to its constitutionality struck out as a result; but other cases are due to return before the courts and seem likely to generate direct challenges to the legislation itself.

 

Broadly speaking, the issues that have arisen include requiring people to quarantine even where they have been fully vaccinated against COVID19 and/or have tested negative since their arrival; requiring people to quarantine notwithstanding pressing reasons for travel (such as the impending death of, or funeral for, a close relative); and requiring people of limited means to pay for their stay in hotel quarantine. In all three categories, the argument turns on the breadth of the exceptions and the proportionality of the approach taken, and the question of whether the law goes further than necessary to achieve the legitimate aim of preventing transmission of COVID19.

 

Vaccinations and Negative PCR Tests

Requiring a person to quarantine even though they have been fully vaccinated and/or tested negative since their arrival appears at first glance to be draconian: it subjects a person to 14 days of detention when it could be suggested that they present little or no risk of transmitting COVID19 to anyone else. However, beneath the surface, it is less clear-cut. While there is clear evidence that vaccination significantly reduces the risk that a person will become seriously ill from COVID19, the evidence that vaccines prevent a person from transmitting the virus to others, while emerging, is weaker and more contested.

 

Verifying that a person has been fully vaccinated in another country is not straightforward; in the absence of an international recognition system, such an exception may be open to abuse. PCR tests have a significant rate of false negatives, and a person released from quarantine after a negative test may in fact be infected and may transmit the virus to others. Thus, a challenge to the law on this ground, while arguable, would be met with a range of scientific and policy defences by the Government, to which a court would afford a strong degree of deference.

 

Humanitarian Reasons

A requirement to quarantine for 14 days might prevent a person from seeing their dying family member for the last time, or from attending their funeral. The impact here might not be limited to people hoping to see their dying elderly parents (a possibility denied to many due to COVID restrictions). The Department of Health has confirmed that attending a funeral does not qualify for an exemption from the requirement to quarantine. There is a possibility of appealing on humanitarian grounds, but this does not cover funerals.

 

This category of cases is different to vaccination cases in that the person travelling cannot claim to present a lower risk than anyone else of transmitting COVID19. On the other hand, the numbers involved will be relatively small, and PCR testing pre- and post-arrival could reduce (if not eliminate) the risk of transmission. In this light, the impact on that person and on their family does seem especially harsh. However, it is important to emphasise that the courts have stressed in cases like Murphy v IRTC [1999] 1 IR 12 and MD (A Minor) v Ireland [2012] 1 IR 697 that it is not the role of the courts to decide that the Oireachtas could or should have made a different policy choice. A law will only be found to be disproportionate or discriminatory if it is found to be beyond the competence and discretion of the Oireachtas; and those judgments are just two of many examples of courts affording the Oireachtas a very wide latitude.

 

Cost of Quarantine

Running a system of quarantine is expensive, and the State could argue that it is entitled to seek to defray that expense by shifting the cost to those who will use the system. It could also argue that imposing a charge is part of a legitimate policy of seeking to deter people from all but the most essential of travel during the pandemic. The scheme does include a possibility of applying to defer payment on grounds of hardship. However, at a cost of €1,875 per passenger, there is a big difference between deferring payment and being exempted from the cost (or the requirement to quarantine) altogether.

 

Moreover, some travel clearly is essential, and not everyone who has an essential reason for travel will be able to pay the cost of quarantine either now or at a deferred date. The announcement that the Government will pay the costs of quarantine for students returning from studying abroad on Erasmus placements recognises this fact. Others of limited financial means may need to travel considerable distances for pressing family reasons and be unable to afford quarantine after paying for the costs of travel; but at the time of writing, no additional provision has been made for such cases.

 

A case with the right fact pattern involving essential travel and impecuniosity might attempt a constitutional challenge to quarantine charges on a basis not dissimilar to part of the judgment in Redmond v Minister for the Environment [2001] 4 IR 61. In Redmond, a requirement to place a deposit before running for election was found to violate the equality guarantee of Article 40.1 for indirectly discriminating against people of limited financial means. Herbert J stated at 80 that “a law which has the effect, even if totally unintended, of discriminating between human persons on the basis of money is an attack upon the dignity of those persons as human beings who do not have money.”

 

Conclusion

It seems likely that a direct constitutional challenge to the system of mandatory hotel quarantine will find its way to the High Court sooner rather than later. When it does, it will combine technical considerations regarding proportionality and judicial deference and human considerations concerning harsh impacts on individuals and families. Many lawyers agree that any challenge faces a steep hill to climb. An applicant who can make arguments based on a combination of the above circumstances (ie vaccination, negative test, humanitarian considerations, and possible inability to pay) seems best placed to discharge the burden of rebutting the presumption of constitutionality enjoyed by the relevant legislation. Moreover, it should be remembered that even a successful challenge would not necessarily invalidate the entire system; it may simply require an adjustment to the exemptions.

 

Conor O’Mahony is Professor of Law and Deputy Dean of the School of Law at University College Cork, where he teaches constitutional law, child law and children’s rights