The State of Exception

As reported, Tracey O’Mahony has undertaken a challenge against the State’s emergency pandemic restrictions. Unfortunately it is the belief of this author that the challenge will be of little consequence.

It would seem that the challenge in the High Court will be based upon the extent to which powers may be attributed to Statutory Instruments (SI’s). That is, exactly how much power can you give to the Minister to make regulations and guidelines (without explicit approval of each by both the Dáil and the Seanad) before they are to be considered to assume the powers of the Oireachtas? 

In Cityview Press v AnCo ^{[1980] IR 381} the test laid out by the Courts is two-fold: was the Statutory Instrument only filling in the details of a policy already contained within primary legislation (and not creating new policy altogether), and was the Oireachtas specific enough in prescribing the extent of the Ministers’ role and powers?

The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years […] the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself.

As Ms O’Mahony is challenging Section 31A, not any particular SI’s resulting from such, so we can surmise that the main thrust of the test will be whether the Oireachtas was too vague in establishing the limits upon the powers of the Minister.

Section 31A inter alia allows the Minister to: restrict travel to/from, and also within, the State; to require citizens to remain in places named by the Minister; to prohibit events; and to establish the safeguards to be put in place by owners/managers/occupiers; and any other powers that the Minister considers necessary to halt the spread of the virus; and, any other incidental powers necessary to give effect to the regulations (summary and emphasis my own).

Now, while the highlighted may initially seem overly vague, there is something else we must consider: that the State declared a national emergency which, included in primary legislation, the statement that there exists an “immediate and manifest risk to human life and public health”.

The State is not claiming immunity from Constitutional challenges. “It was submitted that the respondents are not relying on the provisions of Article 28.3.3° so as to make the legislation immune from constitutional attack. Mr. McCann maintained that other emergencies arise from time to time, other than an emergency ‘in time of war or armed rebellion’, and that legislation to address such emergencies has to be constitutional.” (O’Doherty and Anor v Minister for Health and Ors ^{[2020] IEHC 274})

However, it is important to note that the State is claiming “other emergencies arise from time to time”. This is where I believe the crux of the argument will rest. The legislation and statutory instruments derived are all temporary in nature, and the Oireachtas must reaffirm the primary legislation owing to the sunset clause. It is the above that makes me think the legislation will meet the test for constitutionality.

While such wide-ranging powers may not normally be allowed by the Court, it is clear that the Oireachtas intended to grant such discretionary powers to deal with such a national emergency. While there may be issues regarding Oireachtas oversight and scrutiny (as the IHREC maintains) ultimately the legislation has been passed by the Oireachtas on more than one occasion, and it is not the lack of scrutiny or oversight which is being challenged but rather the derogation of powers to the Minister.

Tracey’s timing is also remiss: I do not think many of us are expecting the emergency restrictions to remain in place beyond the summer ,owing to both fatigue and the vaccination program being underway. It is a good chance that her challenge will simply become obsolete by the time it reaches the Supreme Court  — a waste of resources better directed elsewhere.

Similarly we must ask the question — do we want her challenge to succeed at all? In order for political Nationalists to make any sort of headway electorally we require the utmost damage be done to the system as quickly as possible. Radical politics only grows in times of radical change, and as callous as it may sound, we need this calamity in order to open people’s eyes. The more debt that the State takes on, the more damage done to the Irish economy, and the more people left out of work and left hanging high and dry, the easier our path is to national power. Where the Left reached its zenith was with the water charges protests; the Right must make sure it makes headway as a result of the virus and lockdowns. We must not fall for the simple reactionary position and arguments: we must not seek “freedom” or “rights” or a “return to normal”. We did not come to our brand of politics because we were happy with the “old normal”, after all.

We can of course speak to the people in terms of “freedoms”, “rights”, and “normality” when necessary, but we must speak amongst ourselves of “responsibility”, “righteousness”, and “revolutionary change”. Nationalism must be the galvanising force at present, agitation and fomentation our strategy.

There is also an ancillary benefit to the State’s taking exception to normality — it gives precedence to the State acting outside the realms of what is normally acceptable, and lends credence to the Schmittian theory of the sovereign: that liberal democracy’s greatest lie was that the Sovereign was no more, when simply it was inactive and hidden until such a time as an emergency necessitated great action without being bound by rules and regulations. 

We will make them rue establishing such precedents.