Mandatory hotel quarantine on incoming travellers is a controversial topic. Some see it as the most crucial public health measure absent from our pandemic response, given its use in countries like Australia and New Zealand. Others seeing it as too great a violation of liberty to consider.
However, we must separate the question of whether or not we should adopt this policy from the question of whether or not we legally can. Contrary to recent suggestions from the government, I think it is constitutionally possible to implement this measure.
On Wednesday, the Taoiseach said that there were “compelling legal reasons” why this policy could not be implemented for all incoming travellers. We did not hear exactly what those reasons are, and whether they come from the Attorney General or some other source. It is clear that these concerns relate to constitutional rights and liberties that would be restricted by the measure and leave it open to challenge in the courts.
If the government’s belief is that mandatory quarantine is clearly unconstitutional, I believe this to be incorrect. Though it is a significant restriction of rights, that would have to be carefully executed, there is a strong likelihood of it being upheld by the courts as constitutional.
Quarantine of this sort engages serval constitutional rights. First, it is a deprivation of liberty, a right protected in Article 40.4 of the Constitution. The courts have also recognised a constitutional right to travel that would be restricted, directly or indirectly, by this measure. These are serious rights restrictions.
Crucially, however, constitutional rights are not absolute. Not every restriction on liberty or travel is unconstitutional. Restricting liberty is only unconstitutional if it is done otherwise than in accordance with law and basic constitutional principles. And rights can generally be restricted in the interests of advancing the common good or protecting the rights of others, once this is done proportionately.
In considering a law that restricts rights, courts apply a proportionality test. First, the courts ask does the law restricting rights pursue an important objective in the public good. They will then consider if the law only violates rights as little as it needs to achieve this objective, and is not arbitrary or irrational.
Finally, the courts consider if the good done by the law can be said to justify-if it is in proportion to-the harm done to the rights.
In applying this test, the courts give significant leeway to the Oireachtas. That body is more skilled in making the complex decisions and trade offs needed for effective policy making. It is also accountable to the people.
The courts thus give real weight to the fact that the Oireachtas think a particular measure was necessary and only find it unconstitutional if it is clearly shown to cross a line into being disproportionate.
Mandatory hotel quarantine is a serious deprivation of liberty and the right to travel. But it would be undertaken for a good objective, in the interests of the common good: to defend the life and health of other people in the state. There is a credible case that it could substantially advance this goal.
It would be done after careful consideration by the government and legislature, and after months of attempting many other means to suppress the spread of COVID-19 in the state. This would suggest that it is only restricting the right because it is strictly necessary.
And it would be done in a severe public health exigency, where we have restricted all sorts of rights in the name of protecting the health and welfare of others, and where this measures seem no longer to be sufficiently effective. In this context, the restriction of the rights of those placed in hotel quarantine seems justifiable.
To be clear, there would be a credible constitutional case against this measure. It is a serious restriction on rights. The devil would be in the details of its execution, and to what extent it’s likely effectiveness could be shown.
However, I think it is a proportionate restriction, and, once done well, the courts would uphold it as constitutional.
The issue is of such importance that if our legislators, after careful consideration, think this measure is necessary, we should let the courts decide upon its constitutionality, if and when someone affected by it wishes to challenge its constitutionality.
The way the Constitution is often discussed in our politics, one might think it was simply an obstruction to governance. But the Constitution is not a straightjacket. Though it places limits on governance, it exists to facilitate governance in the common good. The right it protects are important, but balanced with other concerns, and do not always win out over the general welfare.
If the government wishes to not pursue policies because of supposed constitutional obstacles, we should be told exactly what these are, and subject them to close examination before accepting that the Constitution says no.
David Kenny is assistant professor of law at Trinity College Dublin