Achtung, Covidräte!

Although legally unenforceable, the Irish Government has constructed its face coverings regulations so that they are enforced by zealous members of the public in a kind of parallel rule-by-harassment.

As we plummet towards our second calendar year of the Time of Covid, a strange bifurcation has opened up in public responses to lockdown measures. On the positive side, undoubtedly, many more people are wakening up to the mendacity and pure wickedness of what has been happening for the past nearly ten months. On the other hand, each new tightening of the screw has been met, at the other end of the common sense spectrum, by escalating acquiescence and collaboration. This is in part the syndrome I wrote about recently under the rubric of obedience: people of a certain mentality finding finally the very meaning of their lives in submitting to the absolute power of a plausible regime over the most intimate aspects of their lives, and seeking to anticipate the next round of restrictions so they can submit even before the ordinance comes down. We can already see this post-lockdown II as the result of some incoherent muttering that maybe people might be obliged to wear face masks on busy thoroughfares. Instantly, you look around and everyone else seems to be muzzled.

There is another factor also, somewhat related but actually both more interesting and more ominous: the tendency of a certain cadre of people — approximately coterminous with the aforementioned obedient sector — to take on the role of policing their fellow citizens. It seems this type always surfaces in times of tyranny. In the Nazi era, councils were set up within Jewish ghettos to enforce the orders of the Nazis. Known as Judenräte, their functions included weakening resistance, ensuring that Nazi orders and regulations were implemented, and spying on and eventually snitching up their fellow Jews for ‘deportation’. Of course, this syndrome is by no means confined to Nazism: wherever there is tyranny, you tend to find collaborators, and they often appear to be, as Hannah Arendt observed in Eichmann in Jerusalem, 'terribly and terrifyingly normal', possessed of a banality 'much more terrifying than all the atrocities put together.'   

Already we have been able to identify the existence of a growing community of prospective Covidräte —  Covidrats — who are happy to grass up their fellows and where necessary humiliate them publicly for failure to observe the letter of Covid-cult diktats. Since I became associated with the sole substantive Irish legal challenge to the lockdown, I have been receiving a regular flow of accounts of people’s experiences at the hands of the Covidräte: people being dressed down in public for failure to socially distance, being refused service in shops for not wearing a face nappy; would-be travellers refused and abused by drivers on public transport for the same reason, and so forth. Somewhat counter-intuitively, as stated earlier, I have noted an uptick in such reports in the fortnight or so since the suspension (I use the word advisedly) of the ‘second lockdown’ at the beginning of December. Thinking normally, I would have expected things to relax for Christmas, but the opposite is happening. It's interesting: they roll out every new demand as the final solution (flatten the curve, social distancing, face coverings) and, as soon as people start doing it they announce that it's not going to be enough anymore. Now, the purported ultimate panacea — the vaccine — is being rolled out they tell us that, even when you get it, you will still need to socially distance and wear a face nappy for perhaps another 18 months. But, rather than directing their anger at the villains who are doing this to them, a significant minority of people direct it at those who decline to be enslaved. You might even get to thinking that they are so terrified of the tyranny coming to an end that they wish to summon up a pandemic of the imagination like it was coming up to Easter all over again, instead of Christmas nine months later.

I have in the past fortnight been involved in a couple of incidents myself, even though in general I avoid public transport and the generality of shops. I confine my shopping to the smaller, friendlier outlets and usually wait until a premises is empty of customers before entering. Last week, a woman followed me into a fruit and veg store and, full of herself, looked around, saw me, muttered something about masks and walked out again. I played deaf, and so did the shopkeeper, who isn't. When I went out she was queuing on the sidewalk and started projecting some rant in my direction, but I pretended I didn't hear and kept walking. It doesn't appear to occur to these morons that everyone is on their phone in public now, often with a hands-free set, so nobody any longer assumes that someone speaking in their proximity is addressing them. The deaf gimmick works a treat, because you can engage them in conversation if you want. ‘Mass? No, I don’t think there’s any Mass on around here, but I'm not a regular churchgoer. Have you called the parish office?’  Push them like this and they'll go fit to choke and start repeating themselves with added decibels, whereupon you start on your own counter-rant about the bishops closing the churches when there was no necessity, then bid them a cheery farewell and walk away with a shake of the head, leaving them spluttering.

I was involved in an even more colourful incident a couple of days later in — or, rather, at — a solicitor's office in Dun Laoghaire. I go there occasionally to get papers witnessed. It’s usually straightforward: one of the solicitors stamps your papers, signs on the dotted line and puts his/her paw out for the tenner. Having phoned ahead as usual to make an appointment, I arrived on time and rang the doorbell. A small, round woman of about 35 appeared, masked up to the eyeballs. I told her my business and she said, ‘Wait here’, and closed the door in my face. In a few minutes she returned with a young man, who had signed papers for me before. Let’s call him Leo. He too was masked up to the eyeballs. 

Leo opened the door wide and gestured for me to come in. There was a small table and chair to one side in the hall and I sat down and took out my papers. Whereupon the round woman returned and asked me if I wanted a mask. 

I said, ‘No thanks. I don't wear masks.’  

‘You'll have to go back outside so,’ says she, ‘for safety reasons.’

I wasn't in the mood for arguing and just wanted to get my business done, so decided not to rise to the bait. I also had an eye to a possible punchline. I stepped back out into the beautiful frosty morning and stood on the doorstep. Leo followed and, taking off my gloves, I handed him my papers, explaining what needed doing. We went through the usual palaver of each using his own pen. I proffered him my ID and he took it, disappeared back into the office, presumably to photocopy it. There was a sign on the door with all kinds of instructions relating to Covid, and while he was gone I studied it. One of the instructions read, ‘Contactless payment only’. 

When Leo returned with my papers stamped and signed, I took them and handed over the tenner with my ungloved hand. He grabbed it without hesitation and pocketed it. About to turn away, I did a Columbo, turning to advise him: ‘Be careful with that tenner, Leo — you may need to get it treated in some way!’

‘Haha,’ said he. 

‘Haha,’ I replied and, happy to have achieved my punchline, bade him good day.

What is especially difficult to communicate to people is that the regulations in general, and on face coverings in particular, are constructed precisely so that they will be policed by members of the police, with an Garda Siochána requiring only to breeze by on occasion to keep the pot stirred. Having understood early on that the entire edifice of Covid ‘laws’ was an unroadworthy banger, the guards began engaging in an admixture of bluff, banter and confusion-making in order to awaken the Covidräte and set people at each other's throats. It’s worked like a toy train, having opened up a kind of parallel rule of law, aside from the law part. 

Anyone has a right to be served in a shop. As far as I can see, the policy on face coverings being pursued by some shops — whereby they say they have a ‘policy’ not to serve people who are not wearing masks — is in breach of both the letter of the parent legislation being used for the current regulations — the Health Act of 1947 —  and also of the Equal Status Acts 2000/2018, which prohibit discrimination and entitle inter alia persons suffering from a disability to be treated equally in relation to the provision of goods and services, regardless of their  disability. 

The Health Act 1947 is concerned solely with preventing the spread of notifiable diseases and is therefore capable of being applied solely to an infected person or a person suspected of being infected, or the parents or guardians of one or other of such persons, and its remit is confined to the imposition of measures or restrictions on those categories of person. Thus far, the courts have avoided making any definitive ruling on the merits of the edifice of regulations this erected, and in general the guards do not force the issue, preferring to nail people with the Road Traffic Act or some trumped-up public order charge. 

The 1947 Act definitively does not allow for the imposition of measures or restrictions on people who are not infected with a notifiable disease, so by definition the Covid regulations, as constituted, are wholly ultra vires. Moreover, the Act — in this context referred to as ‘the parent Act’, because it is used to procreate a form of quasi-law by way of ministerial decree — imposes a specific obligation on authorities seeking to impose measures or restrictions under its provisions to provide for ‘the giving of information to such person or such parent of the right to exemption under section 32 of this Act.’ 

And whereas the regulations do make provision for the possibility of claiming an exemption from the requirement to wear a face covering in particular public situations, allowing for the proffering of what is termed a ‘reasonable excuse’, they neither provide any guidance as to how such a reasonable excuse is to be formally certified, or any information about how a dispute concerning such reasonable excuse, where such occurs, might be resolved. 

The regulations, under Statutory Instrument 244 of 2020, provide that a ‘reasonable excuse’ arises if:

(a) the person cannot put on, wear or remove a face covering 

(i) because  of  any  physical  or  mental  illness,  impairment,  or disability, or

(ii) without severe distress,

or,

(b) the   person   needs   to   communicate   with   a   person   who   has difficulties  communicating  (in  relation  to  speech,  language  or otherwise),

or,

(c) the  person  removes  the  face  covering  to  provide  emergency assistance  or  to  provide  care  or  assistance  to  a  vulnerable person,

or,

(d) the person removes the face covering to avoid harm or injury, or the risk of harm or injury,

or,

(e) the  person  removes  the  face  covering  in  order  to,  and  only  for the time required to, take medication.

It is patently clear from this list that only the first three, under (a) and (b) of these ‘reasonable excuses’, might be deemed to be ‘primary excuses’ in the sense that they might be proffered in the first instance by a prospective passenger on entering a transport station or vehicle. They relate to a person who is unable to wear a face covering due to a physical or mental illness or some such, or because doing so would cause that person ‘severe distress’, or because the person is accompanying someone on their putative journey who has ‘difficulty communicating’. The other provisions, which might be deemed ‘secondary excuses’, relate to contexts in which someone might remove their face covering on a temporary basis in the course of the journey. It is also clear that the three primary excuses may be adjudicated on solely by a qualified medical specialist after an extended investigation.

Much confusion arose in the early stages, and to an extent continues, because of the degree of discretion apparently extended to a ‘relevant person’ — usually a bus driver or transport official — mandated to inquire into the basis of the would-be passenger’s ‘reasonable excuse’. Yet, there is no specified requirement in the legislation that the prospective passenger provide concrete proof, never mind any indication of what form this should take. There is no mention, for example of any necessity for a doctor’s certificate, and I have heard more than a few accounts of people whose doctors say they have been instructed by the HSE not to issue such certificates. 

The matter is left, as a matter of absolute discretion, to the ‘relevant person’, which in most instances would entail the relevant person making a determination on a matter way outside his or her sphere of expertise or knowledge. No mechanism has been provided by any of the transport operators indicating what procedures passengers are expected to follow. Are they expected to outline their medical histories and conditions to drivers on a crowded bus? In no other context is there an entitlement of anyone to demand of someone suffering from any disability that they discuss this with any other person, in public or private, for any reason. Such information is personal and as such is protected under the Data Protections Act 2018.

The outcome of encounters arising from these circumstances ought to surprise no one. Most drivers, in fairness, simply ignore the existence of the regulations. A few take it upon themselves to stand on their new-found authority, turning the regulations into a charter for sundry little Hitlers to let rip with their power-lusting. A few ‘relevant persons’ have called the Gardai which usually results in the passenger being arrested on a contrived public order charge. Very often, however, this is unnecessary, because the ‘relevant person’ makes such a fuss that a Covidrat or ten on the bus or train will step in and humiliate and abuse the would-be passenger until he or she simply gets off.  Thus, we observe the strategy of the authorities: make the regulations as vague and open as possible and the Covidräte will make themselves known. 

Interestingly, when the face coverings requirement was extended to shops and other public premises in August, the position of ‘relevant person’ was replaced with that of ‘responsible person’, but without any specified guidance as to what powers such a person might have in adjudicating the ‘reasonable excuse’ of a bare-faced would-be shopper. 

Again, there was no requirement or provision for a person claiming an exemption from the mandatory wearing of face coverings to provide evidence or proof of any disability. Nor, in this case, was there any suggestion of an entitlement on the part of proprietors, employees or other responsible persons to legitimately request such evidence or proof. To be precise and clear: the regulation, under Statutory Instrument 296 of 2020, set down no requirement that someone claiming such an exemption produce a letter from a GP or other medical practitioner. The obvious inferences were that the person him/herself should simply declare a claim to such an exemption and that it was not open to the proprietors and/or employees of relevant premises to interrogate such a person concerning their declaration of an exemption. 

What tended to occur is that shopkeepers presented the face coverings requirement as something being demanded by their customers, and therefore a matter of ‘policy’, a necessary condition of entering their premises. Several times, in the early days when I was still testing the ice, shop workers whom I encountered refused to enter into any discussion about the terms of the regulations, and clearly neither knew nor cared what they specified.  On a few videos I’ve seen, when An Garda Siochána was summoned to the scene of a dispute — sometimes, out of naivety, by the wronged would-be shopper — they would compel the person to leave the shop and inform them that the shopkeeper was quite entitled to refuse them entry. It seems to have been overlooked in the general hysteria concerning Covid that business people are still obliged under, for example, the Equal Status Acts of 2000 and 2018, not to discriminate against somebody on grounds or a disability or some other characteristic entitling them to be treated equally in the provision of goods and services under said Acts, ‘regardless of their disability or its attendant requirements or incapacities.’ This legislation, of course, also applies to transport companies. 

What has occurred is in effect a privatisation of the law, a shifting of the ground from face coverings as a police matter to an, in practice, arbitrarily enforceable civil matter. The result is that the situation becomes ever more opaque, and may in the long run lead to innumerable civil suits as people seek legal redress on account of being denied essential goods such as food or clothing, or on foot of being humiliated in front of other customers in the clear context of their disability. 

The situation with respect to the regulations founded on the 1947 Act is a little more complicated and unclear, especially since no court has yet delivered a clear judgment on the status of these regulations in law. I know that a number of judges have made statements from the bench (invariably at callover hearings or the like when a particular case was being scheduled or bail arrangements being made) to the effect that these regulations are not law, which means that An Garda Siochána has no business enforcing them. 

Among the many bizarre aspects of all this was that, all the while and right up to the time of writing, the gov.ie website made clear that the following categories of people should not wear a face covering: 

Children under the age of 13 and anyone who:

has trouble breathing

is unconscious or incapacitated

is unable to remove it without help

has special needs and who may feel upset or very uncomfortable wearing the face covering

In the same schedule, the public is urged: ‘Do not criticise or judge people who are not able to wear a face covering.’

For several months now — since early July, if not indeed since last March — the authorities have been falsely asserting that various laws are in existence which entitle the Garda force to stop, interrogate, restrict the movement of — and in some instance subject to arrest — citizens who are simply going about their business, seeking to use public transport or buy something in a shop. It is difficult to see how this can be interpreted other than that An Garda Siochána has been seeking to deceive citizens into believing that laws are in existence when they are not. 

In the recent High Court case Ryanair v. An Taoiseach, Mr Justice Garrett Simons, addressing the (related to above) question of Government advertising of the conditions being imposed on people returning from abroad, issued what reads like a stern admonition to State bodies and politicians. 

Judge Simons said it would ‘offend against the separation of powers’ were the government to create the mistaken impression that ‘certain recommended restrictions are legally enforceable if, in truth, there is no legislation in force to that effect.’ By this he clearly intended to suggest that it is not permissible for government ministers to sidestep the exclusive prerogative of the legislative arm of government to create legislation by passing off regulations as though they were statutory powers. 

‘Were this to happen,’ the judge continued, ‘then the executive branch would be able to achieve a result which is similar in effect to legislation, i.e. members of the public might well be coerced into complying with the government’s guidance in the mistaken belief that it is legally enforceable. This is especially so in the context of the coronavirus pandemic.’ The courts, then, he strongly implied, might be compelled to intervene. 

In this brief statement, we can observe two different readings of the meaning of the separation of powers. In one — much favoured by politicians and their appointed agents on the bench — the courts tend to be loath to interfere in the workings of government or parliament. In the other — constitutional  — interpretation, however, when either the legislative or executive branches of government seeks to overstep its legal or constitutional powers, the courts — which comprise the third ‘arm’ of government — have a duty to call order. ‘Separation of powers’ does not imply ‘hands off’, but rather ‘behave, or else’.

In the past nine months, it has often seemed as if the rule of law — in these and other matters — has been in suspension, if not abolished. Some of the most radical incursions on human freedom seen in the history of independent Ireland have passed without a murmur of disquiet from bench or pulpit. Judge Simons’ remarks offer a straw of reassurance to clutch at in our dwindling hopes of the return of our country to the rule of law.