Concern Government ceded “sweeping statutory powers” to NPHET – Legal Report

A new report has warned that the Government’s relationship with NPHET “lacks transparency” and that “sweeping statutory powers” were unofficially delegated to NPHET.

The report, Public Health Law During the COVID-19 Pandemic in Ireland, was released today by the COVID-19 Law and Human Rights Observatory in Trinity.

The report argues that interactions between NPHET and the Government raise questions of transparency and accountability, and it calls upon the Government to clarify the relationship between NPHET and itself. The report also notes that “some have alleged that NPHET lacks diversity of scientific and health viewpoints, and could constitute an echo chamber for certain viewpoints.”

NPHET, the report says, is “fundamentally, an advisory body,” but “the relationship between the government and NPHET—and the locus of power in that relationship—is not always entirely clear.” NPHET’s influence, the report says, is “undoubtedly vast.”

The report details multiple instances, ranging “from who actually made decisions during the pandemic, to whether certain public health measures were actually legally enforceable,” in which it is not clear how decisions were made or who actually made them.

“The Government,” the report says, “particularly in the early stages of the pandemic, often presented NPHET advice as determinative of the question of what measures should be introduced or retained, when in fact this was a governmental decision that needed to factor in considerations beyond those that NPHET was charged to consider.”

The measures chosen by the Government and NPHET were “perhaps heavy-handed.” The report argues that this was initially understandable, given how little was known about COVID-19 in the early stages of the pandemic, but “lessons from the various waves of the pandemic were not always learned and applied to subsequent waves.”

This situation led to “accountability issues” as more “de facto power is invested in technocratic public health advisors and away from the political executive democratically accountable to the Dáil and electorate.”

NPHET’s use of the Irish media also comes in for criticism, with the report saying that “the seemingly routine leaking of NPHET recommendations” became seen as “NPHET attempting to indirectly influence government decision-makers.” Senior civil servants, the report says, have stated that they believe NPHET used media appearances to put political pressure on the Government to accept NPHET’s advice.

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