Comparative Legal Responses to Covid-19

Introduction

This essay compares the legal responses to Covid 19 in England and Ireland. As an essay involving comparative perspectives, this essay is based on the premise offered by Legrand, that for a comparatist, “foreign law could hold a significant and indeed crucial measure of normative purchase for judges and lawyers operating locally.” In other words, the motivation for applying a comparative approach to a subject matter like this one is that there can be useful ideas located in the foreign law that may be emulated or adapted in the local law. At the same time, it is useful to note that any legal or policy responses cannot be seen in isolation from relevant non legal contexts such as politics, public health policy, economics, and religion because there can be a close connection between legal responses and such non legal contexts. In the time of Covid 19 pandemic, such non legal contexts can have impact on the law and policy, and any reference to the legal approaches taken by two countries to the same problem will also involve cultural perspectives. Therefore, it can be argued that one state’s cultural perspective may lead to legal and policy measures in response to Covid 19 that are different from the others. It is in this context that this work seeks to use a comparative approach to understand the legal responses to Covid 19 in England and Ireland and how these are influenced by politics, economics, public health policy, and religion. There are three issues that are dealt with in this essay. The first issue relates to the differences between the legal responses in England and Ireland. The second issue relates to whether the differences in the approaches taken by the English and Irish jurisdictions can be explained in the context of the culturalist approach or in other words whether culturalist approach can help us to understand legal responses in two different jurisdictions. The third issue relates to whether the English responses and Irish responses can be related to any political, religious, or economic local factors that highlights the cultural factors that affect the making of the law and policy in these two countries.

My essay contains four parts. The first part is a discussion on the comparativist approach, including the principal culturalist arguments in order to give a background and context to this research. The second part discusses the laws and measures in England and Ireland as responses to Covid 19. The third part applies a comparatist approach to discuss the cultural approaches that may be involved in the making of the laws and measures in response to the Covid 19 crisis in England and Ireland. Then the conclusion of the work.

Comparative approach along with the culturalist argument

A comparative approach is applied in legal research to explore and identify the ways in which two or more jurisdictions may respond to the same issue or problem; as such a comparative approach collects data from two or more jurisdictions with the objective of understanding different responses. In this context, an observation made by Mary Ann Glendon is relevant to understanding why a comparative approach may be undertaken to legal responses: “Since the city must constantly be re-examining and revising its laws, its guardians would do well, he advises, to send out mature citizens to study especially good laws elsewhere and to seek assistance from wise persons, wherever they may be found, even in ill-ordered cities.” Thus, one of the purposes of the comparative legal approach is to learn from good laws elsewhere. The orthodox view of comparative law is that it is the principle of functionality that guides the comparative approach to studying and comparing laws of different countries. This may be related back to Mary Glendon’s observation of the purpose of comparative approach being to learn from good laws elsewhere. The problem with this approach is that functionalism can be based on the premise of the unitary sense of justice, which may lead to an artificial exercise of reading the laws of different countries on similar grounds. While the functional approach is useful in that it can guide research from the perspective of learning from good laws elsewhere, it is also noteworthy that functional approach can be useful in solving common problems only if related to societies that are similarly situated. This is the reason why the study of laws elsewhere also require an attention to the cultural factors that may impact the making of the laws elsewhere and the adoption of these laws in other jurisdictions. For instance, in exploring how Ireland and England may have responded differently to the Covid 19 pandemic, it would also be important to understand the non-legal or the cultural contexts of these laws and policies. In this context, Legrand’s observation on how a comparatist approaches reading of the foreign law text is relevant because in such reading of the text, it is likely that the comparatist will be influenced to some extent by their cultural contexts as well which leads to the contextual reading of the foreign law. Thus, culturalism can be said to be a contrast to functionalism. This essay adopts a culturalist perspective to studying the laws and policy made in response to Covid 19 pandemic in Ireland and England. In studying laws of two different countries as they respond to the common issue or problem, the culturalist argument is premised on the argument that despite involving themselves in a comparatist framework for viewing foreign laws, (functional) comparatists often desire to wish away the differences between the laws that they know (i.e. of their own state) and the foreign law. On the other hand, culturalists emphasise on the value of culture for understanding laws of two different countries because culture is the “lens through which all aspects of law must be perceived,” as it can allow the comparativist to understand the foreign law with the reference point of culture.

Laws and measures in response to Covid 19 pandemic

In England, the Parliament has enacted the Coronavirus Act 2020 in response to the Covid 19 pandemic. In Ireland, the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 has been enacted for the same purpose. There are some crucial differences between the two laws; for example, the Irish law allows illness benefit for those who are infected while similar provision is not found in the English law. The Coronavirus Act 2020 is aimed at increasing the available health and social care workforce in response to Covid 19 pandemic and to ease the burden on frontline staff. Many of the provisions of the law are clearly related to these aims. For instance, the law provides for emergency registration of health professionals and social workers and also provides for emergency volunteer recruitment in sections 2 to 9. The law is wide in the sense that it contains provisions that are related to the Covid 19 pandemic in different ways; for example, the law confers extensive powers upon the police. These powers are related to the management of the Covid 19 restrictions so that the police may use reasonable force, remove individuals back to home and even arrest available individuals for the breach of the regulations. Apart from the Coronavirus Act 2020, there are also regulations enacted: Health Protection (Coronavirus) Regulations 2020; Health Protection (Coronavirus Restrictions) (England) Regulations 2020; and Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. These regulations make further provisions on lockdowns, restrictions on movements, restrictions on public gathering, closure of business premises, to name a few. Certain other changes are made to existing laws in view of the Covid 19 pandemic; for instance, the Care Act 2014 was modified to prioritise care for the most needy individuals or groups. In Ireland, the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 was enacted as a response to the Covid 19 pandemic. In Ireland, many restrictions have been made as per the law to counteract the spreading of the pandemic. The Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 empowers the Minister for Health to make regulations that prohibit or restrict certain events or access to certain premises. The law also provides for powers of detention of persons who are suspected to be potential sources of infection with the disease known as Covid-19. Other powers for Minister for Health include the power to designate areas as areas of infection of Covid-19. The law also provides for the amendments to the Social Welfare Acts to provide for illness benefit as well as provisions for jobseeker’s benefit and jobseeker’s allowance. Therefore, the law is wide in that is includes not only powers for restricting certain activities but also social aspects like illness benefits and jobseekers allowance. This is an important aspect of the law because it allows people who are restricted due to the COVID 19 pandemic to access certain benefits, like the illness benefit which is provided to employed and self-employed persons who are advised to self-isolate and in that sense it is different from the standard illness benefit. In order to provide this benefit, the Parliament amended the Social Welfare (Consolidation) Act 2005. There are other major legal and policy responses in the area of rental housing, mortgage and repossession, employment disputes, pandemic unemployment payment and benefits, and business insurance in Ireland that have been made in response to the pandemic. Thus, an important difference between the Irish and English laws is that the former provides for certain illness benefits if a person is restricted from movement due to COVID 19 diagnosis.

Comparison of the legal responses.

The overarching question in this section of the essay is how cultural factors may have impacted the dissimilar approaches to COVID 19 law and policy. The Bonavero Report analyses the legal responses of 11 jurisdictions including the UK. The report notes that the points of concern for England include the co-existence of non-binding advice and law that has led to discretionary over-interpretation of the legislation by some police officers. This point can be related to the detention provisions where powers are given to the police officers. Another point of concern is the absence of any reference to human rights in the law. Of particular concern is the implications for right to food especially of those who have no recourse to public funds, the possible implication of lack of care of patients in care homes. The criticism is that the English response has not made adequate provision for economic or financial problems caused by the lockdowns for those who would be impacted by it. In Ireland, there has been response to the financial problems caused by detentions and lockdowns. The economic conditions due to the COVID 19 pandemic in Ireland has been demonstrated the rising unemployment with the Live Register showing an increase of 330,734 unemployed in one month beginning February 2020; this is a 12-percentage point rise in unemployment over this period. There were also closures of businesses due to the pandemic. The Irish government responses to the crisis though the inclusion of benefits like illness benefit and jobseeker allowance, as well as other social security related measures have been linked to the need to respond to the economic shocks caused by the pandemic. In England, households were provided support through Universal Credit (UC), and Jobseeker’s Allowance was also one of the methods of support. However, there is no illness benefit in the law as is the case of Ireland. The Joint Committee of Human Rights report entitled ‘The Government’s response to COVID-19: human rights implications’, contains a discussion on the laws prior to the pandemic, which are Public Health (Control of Disease) Act 1984 and related secondary legislation; and the Civil Contingencies Act 2004 can be found as well as the Coronavirus Act 2020 which was passed after the pandemic. The Public Health (Control of Disease) Act 1984 allowed powers to the appropriate to make provisions for responding to spread of infection or contamination in England and Wales. The aftermath of the Covid 19 pandemic saw supplementing of the health protection regime in Part 2A of the Public Health (Control of Disease) Act 1984 with the Health Protection (Coronavirus) Regulations 2020 which imposed restrictions immediately including detention, isolation and restricting contact of individuals suspected to be contaminated with the coronavirus. The Civil Contingencies Act 2004 which is applicable to events or situations that are threatening to human welfare or the environment, where emergency regulations must be compatible with Convention rights and be appropriate and proportionate to the emergency. This law was also supplemented by the Coronavirus Act 2020.

One of the important points brought forth by the report concerns the disproportionate effect of restrictions on certain groups and how this demonstrates the conflict between the right to life as protected by the Article 2 of the ECHR and other rights that are affected by government regulations. In particular, the report points to the impact of contact tracing on privacy rights (Articles 8 and 14 ECHR), rights of access to justice (Articles 6 and 2 ECHR), rights of children to education (Article 2 of Protocol 1 ECHR) and the right to family life (Article 8 ECHR). The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 which gave legal effect to the lockdown, made many provisions that can be directly related to these rights as being restrictive. Indeed, some of the most pertinent concerns with regard to the law is that it may be in conflict with the ECHR rights. Another important point is with respect to detention provisions. In England, the Public Health (Control of Diseases) Act 1984 and the Mental Health Act 1983 allows detention of people with physical or mental illnesses (respectively) against their will but does not allow people with capacity to be treated against their will. The Coronavirus Act 2020 also does not permit forced treatment, but it does allow police powers to detain and remove a person suspected of having the infection to have them assessed for the same. In Ireland, the detention powers go beyond assessment of the individual and the medical officer who orders such detention may order that the individual be isolated in the hospital or any other place until he certifies that the person is free of infection. The individual is allowed to ask for review of the detention order from another medical officer.

Conclusion

To conclude, the responses to the COVID 19 pandemic vary to some extent in England and Ireland. For instance, Ireland provides an illness benefit, possibly as a response to the significant economic upheaval and unemployment caused by the pandemic. The UK on the other hand, does not provide the same benefit but allows some other benefits through the Universal Credit (UC) scheme which does not have the same impact of providing relief to the person who has the infection as is the case with Ireland’s illness benefit. Moreover, political and economic factors appear to have prompted such legal responses in the two countries which can explain the variance where applicable, in the responses.

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