IPRT Submission to Oireachtas Special Committee on COVID-19 Response

9th September 2020

IPRT was invited by the Oireachtas Special Committee on COVID-19 Response to make a submission on how the State’s legislative framework contributed to an effective response to the current crisis; how this compares to the use of statutory frameworks in other jurisdictions; how the legislative framework might be improved upon to deal with similar major events in the future and the constitutional/legal risks that should be considered in this context; and how well statutory Instruments/regulations, as opposed to guidelines and public health advice, were communicated to those who needed to be aware of them, the methods used and how this compares to the practice in other jurisdictions.

In our submission, we focused on the six key areas below as they relate to our work on penal reform, giving international examples of good practice for each where applicable. 

1. Prioritising social measures over penal measures during a pandemic
   Communities marked by social and economic marginalisation and exclusion are over-represented in the penal system. The introduction of any new criminal offences designed to regulate public behaviour during the pandemic is likely to impact disproportionately on certain groups, and further compound cycles of disadvantage.
   IPRT recommends that penalties for the breach of COVID-19-related laws should adhere to the principle of proportionality, consist of non-custodial measures to the greatest possible extent, and take account of the particular risks posed by a prison sentence or pre-trial detention.
    
2. Minimising the use of imprisonment as a sanction during a pandemic
   The success of the Irish Prison Service (IPS) in keeping prisons largely free of COVID-19 was achieved through early preventative planning and action, and a reduction in over-crowding through the structured release of 10%
   of the prison population. However, IPRT is concerned that the ability of the IPS to keep prisoners and staff safe will be seriously undermined by any significant increase in prisoner numbers in autumn 2020 when court activity resumes.
   Considering the significant risk to the health and safety of prison staff and prisoners alike during this pandemic, it is critical that prison is used sparingly, reserved for serious offences and offenders who present a serious risk to society, and for whom all non-custodial alternatives have been deemed inappropriate. This means (i) minimizing the number of committals to prison, whether on remand or under sentence; and (ii) ensuring that legislative options are available to facilitate the release of prisoners assessed as not presenting a public safety risk, including those most at risk of adverse health complications arising from COVID-19 infection.
    
3. Ensuring equal access to justice in remote court hearings
   The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 was commenced on 17th August 2020. It includes provisions for the use of video links for remote hearings, including between persons in custody and the courts. While this takes a pragmatic response to the current emergency, IPRT is concerned there may be potential impacts on equal access to justice for children and for vulnerable adults, including people with disabilities or cognitive impairments – notwithstanding protections included under section 24(3) of the Act.
   IPRT recommends that the application Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 must be closely monitored, including rapid reviews and post-enactment scrutiny (PeS) that examines the impact of new measures on justice outcomes.
    
4. Strengthening inspection and oversight of all places of detention 
   Monitoring by independent bodies of places where people can be deprived of their liberty is a fundamental safeguard against torture and ill treatment.15 Settings where people may be deprived of their liberty include psychiatric units, immigration detention centres, and nursing homes. Independent oversight is of even greater importance during emergency situations such as the present pandemic, when there is reduced access to detention settings and fewer external eyes on practices, regimes and conditions therein.
   IPRT recommends that Ireland’s legislative framework governing inspections of places where people may be deprived of their liberty be strengthened through meeting the Programme for Government commitment to ratify the UN OPCAT within 18 months of formation of Government, and strengthen in legislation and resources inspection mechanisms of all places where people may be deprived of their liberty in Ireland, including progressing the Inspection of Places of Detention Bill.
    
5. Protecting against the negative effects of prolonged isolation on mental health
   The current pandemic has seen increased use of confinement across prison systems, beyond its proportionate use for medical reasons (such as quarantine). In Ireland, there is currently no data at all on the lengths of time that individuals are held in confinement in prisons. Solitary confinement is defined as confinement in isolation for 22 hours a day or more, while prolonged solitary confinement is defined as isolation lasting 15 or more consecutive days.
   IPRT recommends legislating for the maximum number of days that anyone can be held in isolation or confinement, which should be no more than 15 consecutive days in line with the UN Mandela Rules, as well as requiring Require that the Irish Prison Service collate and publish data on the lengths of time that individuals are held in prolonged confinement.
    
6. The role of parliamentary committees in promoting human rights during a pandemic
   IPRT notes the important and positive role that the present Special Committee on Covid-19 Response has played since its establishment in May 2020. Parliamentary committees on justice and on human rights in England and Wales and in Scotland have similarly played an important role throughout the COVID-19 pandemic in holding the Government to account across areas of the criminal justice system including prison, probation and courts systems.
   IPRT recommends that the Committee consider the positive role that all Oireachtas committees can play in supporting public scrutiny of the human rights impact of measures introduced in response to emergency situations, in particular as they relate to places where people may be deprived of their liberty in Ireland.

The Oireachtas Special Committee on COVID-19 Response met to consider the Legislative Framework underpinning the State's response to COVID-19 and the Human Rights and Civil Liberty Considerations on 9th September 2020. You can read the transcripts of the sessions, or watch them back here.

IPRT Submission to Oireachtas Special Committee on COVID-19 Response is available in full here.