Fintan O’Toole: anti-lockdown sentiment given undeserved credibility by political failings

Most anti-lockdown sentiment is driven by ignorance, conspiracy theories or the politics of the far right. The problem is that it is given undeserved credibility by the sloppiness of the political system. The pandemic has revealed an old problem in a new guise: scrutiny of Government by the Oireachtas is woeful.

The vast majority of us accept that we are in the kind of existential emergency where governments must be able to move quickly. The State needs to impose measures that, in ordinary times, would be seen as tyranny.

If you’re not allowed to go to Mass, your freedom to practice your religion is being curtailed. If you can’t go to a funeral, your right to peaceful assembly is shot. If the Garda can ask you about who’s in your family home, your right to privacy is being undermined.

There’s a very good, overriding reason to do all this – the right to life, the collective need for survival. That’s why, as citizens, almost all of us are consenting to stuff we would usually find intolerable.

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Implied in this consent, though, is a contract: more powers must equal more checks. An emergency is not a time for throwing out democratic procedures of questioning and oversight. It’s a time for enhancing them.

Yuval Noah Hari put it perfectly in an essay in the Financial Times at the weekend: “Whenever you increase surveillance of individuals, you should simultaneously increase surveillance of the government and big corporations… If it is not too complicated to start monitoring what you do, it is not too complicated to start monitoring what the government does.”

Monitoring what the Government does is supposed to be one of the main jobs of the Oireachtas. The deep weakness of the Irish political system is that the executive dominates parliament. The Dáil passes laws; only rarely does it really make them.

Over the past 12 months, the Oireachtas has enacted four statutes, and the Minister for Health has made 67 sets of regulations, relating to the pandemic. That’s some load of restrictive law.

Legitimate questions

Last week, a study for the Irish Human Rights and Equality Commission by The Covid-19 Law and Human Rights Observatory at Trinity College Dublin raised legitimate questions about the way this panoply of powers has been created and enforced.

One obvious problem has been a deliberate blurring of the distinction between what is a legal requirement and what is merely public health guidance. We saw this with “cocooning” for the over-70s – people were told “you cannot have visitors to your home”, when there was in fact no law to this effect.

We saw it with international travel, where in a legal challenge from Ryanair, the Government admitted that the supposed "rules" were merely voluntary. We saw it with religious services, where the Department of Health said (accurately) that there was no legal prohibition, but gardaí threatened clergy with prosecution anyway.

This confusion creates both bad law and bad public health guidance. It makes the restraint of public behaviour into a game of Call My Bluff.

Such messiness is a symptom of the larger failure of the political system to adapt itself to the demands of dealing with the pandemic. The Dáil – not without objections from the Opposition – allowed itself to be sidelined, fragmented and bypassed.

The most sweeping powers assumed by Government are contained in the Health Preservation Act rushed through in March 2020. It gives the Minister for Health virtually unliteral powers to issue regulations on what citizens can and cannot do.

Hopelessly inadequate

Getting it on the statue books quickly was perfectly reasonable – sometimes speed is everything. But when those powers came up for renewal in October, the Government allocated 45 minutes for debate. After protests, a day was set aside for scrutiny – still hopelessly inadequate.

Meanwhile, rules and regulations simply flow into the system, unfiltered by any democratic deliberation. In the week of May 11th 2020, for example, the Minister for Health laid before the Dáil the main statutory instruments governing the big lockdown. That same week, an additional 26 documents were laid before the House, including 13 other sets of regulations. These included things like the placing of vulnerable children in foster care during the pandemic. None of them was debated at all.

The Dáil committee system more or less collapsed: no ordinary committees sat between January and October of 2020, when most of the pandemic regulations were put in place.

Readers may remember the Special Committee on Covid-19 Response, very ably chaired by Michael McNamara. It was the first real recognition of the black hole where parliamentary scrutiny should be. The committee sat on 29 days between May 6th and September 30th 2020, published a good report on October 6th 2020 and promptly disappeared. Why?

Poor scrutiny at the top leads to uneven and unequal scrutiny in practice: of house parties but not meat plants, of people drinking on the streets but not conditions in direct provision centres.

It also helps those who want to create and exploit suspicion. We don’t have a malicious State imposing dictatorship on us. But if we did, it wouldn’t have to try too hard to get it through the Dáil. With so few safeguards in place, how could they tell?