Andrew McKeown BL

The Government has published a Bill “to make exceptional provision, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of Covid-19”.

The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020 will amend the Social Welfare Consolidation Act 2005 and Health Act 1947.

Opposition parties will examine the legislation on Wednesday where they may seek to make amendments. It will go before the Dáil on Thursday, with a reduced number of TDs attending to comply with social distancing guidelines. The Bill will then go to the Seanad on Friday.

Covid-19 was included as a Scheduled Disease in Regulation 6 of, and the Schedule to, the Infectious Diseases Regulations 1981 (S.I. No. 390 of 1981) by Ministerial Order (S.I. No. 53 of 2020).

The legislation provides for enhanced income supports for people diagnosed with, or required to self-isolate due to, Covid-19, as announced by the Government on 9 March. It also provides for changes to waive the waiting period requirement for payment of Jobseekers Benefit and Jobseekers Allowance in these circumstances.

The Bill also provides for certain ministerial powers, should they be required in extreme situations, in relation to the regulation or prohibition of gatherings or events and travel where there would be an immediate, exceptional and manifest risk to human life and public health from the spread of Covid-19. Such powers include a ministerial order requiring people to stay in their homes in certain circumstances.

In addition, section 38A of the new Bill provides for further powers, in relation to Covid-19, where a medical officer believes that a person is a source of infection and that the detention or isolation of a person is necessary to prevent the spread of Covid-19.

In its press release, the Government said that these are provisions “which the Government hopes it won’t have to use, given the powers already in place under the Health Act 1947, but legislation is being introduced to give Government powers in exceptional circumstances in the unlikely event that the need arises”. It reiterated that “all measures in the Bill relate only to the exceptional circumstances facing the country due to Covid-19”.

Social welfare

The Bill amends section 40 of the Social Welfare Consolidation Act 2005 (on entitlement to disability benefit) to include persons who are incapable of work, or who are deemed to be incapable of work, by virtue of being certified in the prescribed manner by a registered medical practitioner as being a person who is diagnosed with Covid-19, or who is a probable source of infection of Covid-19, “having been notified, in the prescribed manner, by a medical officer of health or such other person as may be prescribed, that he or she is a probable source of infection of Covid-19, being deemed, in accordance with regulations under section 40A, to be a probable source of infection of Covid-19, or being a person in respect of whom an order under section 38A(1) of the Health Act 1947 is in [force] [operation]”.

It will empower the Minister for Social and Family Affairs to, following consultation with the Minister for Health, and with the consent of the Minister for Public Expenditure and Reform, make regulations for the purposes of giving full effect to the relevant provisions, including such matters as the procedure by which, and manner in which, a person is certified to be a relevant person; the procedure by which, and manner in which, a person is deemed to be a probable source of infection of Covid-19; and additional conditions for entitlement to illness benefit in relation to a relevant person.

Health

The Bill will amend section 31 of the Health Act 1947 to empower the Minister “having regard to the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19” to make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19 (including the spread outside the State) or where otherwise necessary, to deal with public health risks arising from the spread of Covid-19.

Under section 31B (1) of the new Bill, the Minister for Health may by order declare an area or region in the State to be an “affected area” where there is “known or thought to be sustained human transmission of Covid-19 or from which there is a high risk of importation of infection or contamination with Covid-19 by travel from that area”.

The Minister must consult with the Chief Medical Officer of the Department of Health and “such Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister of the Government” before making such an order.

Such regulations may include restrictions to be imposed upon travel to or from the State; restrictions to be imposed upon travel to, from or within geographical locations to which an affected areas order applies.

The Minister for Health may impose restrictions to be imposed upon persons or classes of persons resident in, working in or visiting affected areas, including requiring persons to remain in their homes, or to remain in such other places as may be specified by the Minister.

Events in affected areas (or other areas where there is a risk of infection, subject to certain considerations) may be prohibited where the event could reasonably be considered to pose a risk of infection with Covid-19 to persons attending the event by virtue of the nature, format, location or environment of the event concerned or the arrangements for, or the activities involved in, or the numbers likely to be attending.

The Bill specified that “event” means a gathering of persons, whether the gathering “is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, [religious] or other reasons, and includes but is not limited to a gathering which is required to be subject to a consent, licence or other form of permission granted in relation to it such Minister of the Government or public body pursuant to any enactment or rule of law which provides for the regulation of proper planning and sustainable development, traffic management, sale of alcohol, safety and health at work or otherwise”.

Owners or occupiers “of any other place or class of place” may be required to enact safeguards as laid down by regulations, including the temporary closure of such place or class of place, in order to prevent, minimise limit or slow the risk of persons attending them of being infected with Covid-19.

The Bill empowers the Minister to specify the safeguards required to be put in place by managers of schools, including language schools, crèches or other childcare facilities, universities or other educational facilities (including the temporary closure of such facilities).

The Bill states that the Minister when making such regulations must have regard, among other things, to the fact that a “national emergency has arisen of such character that there is an immediate and manifest risk to human life and public health as a consequence of which it is expedient in the public interest that extraordinary measures should be taken to safeguard human life and public health”. He must have regard to the the resources of the health services “including numbers of health care workers available at a given time, the capacity of those workers to undertake measures, the necessity to take such measures to test persons for Covid-19 and to provide care and treatment to persons infected with Covid-19 as are appropriate to protect health care workers from infection from Covid-19, and the capacity of hospitals or other institutions to accommodate and facilitate the provisions of treatment to infected persons”.