Guidelines in relation to travel must be embodied in law if they are to be enforced on members of the public, including civil and public servants, international legal experts have said.
Speaking at a meeting of the Oireachtas committee on Covid-19 response on Wednesday morning, chairman Michael McNamara highlighted cases in which Irish civil servants, and a number of "high-profile" individuals were penalised for breaching guidelines on international travel.
He cited a case in which an unnamed public servant was requested to apologise after travelling to Spain, despite the Government advising against all non-essential travel to the country.
In response, Gianni Buquicchio, president of the Council of Europe's European Commission for Democracy through Law (Venice Commission), and Jonathan Sumption, retired justice of the supreme court in the UK, said that guidelines, such as those on travel, are not enforceable and require "a legal basis".
Mr Sumption said that it is not enough that people are “disciplined for failing to accept Government advice”.
"It seems to be fundamental that it needs to be embodied in law, not just under the European convention, but as a matter of basic constitutional proprietary under a common law system, such as both the United Kingdom and Ireland have," he said.
“Civil servants are citizens as well as employees of the Government and where they choose to go on holiday belongs very much to their private life as citizens. A legal basis for restrictions on where they can travel, is absolutely indispensable.”
Mr Sumption added that there is a “serious practical difficulty” in determining what is and is not essential travel, as that would vary for each individual.
For countries within the Schengen area, the restrictions on travel were lifted on June 15th, and restrictions between the Schengen area and non-members of the European Union came to an end on July 6th, the committee heard.
However, those restrictions were lifted “without prejudice” to the rights of individual States to introduce new restrictions if they thought it necessary.
Mr Buquicchio said that this is a “much larger problem because it shows the lack of harmonisation at the European level”.
He added that the European Union needs to “discuss this chaos”, to try and “harmonise all of the legislations … between the different countries.
“There must be one European rule,” he said.
The two witnesses were invited to speak at the committee to discuss the legislative framework other countries have utilised in terms of their response to the Covid-19 pandemic.
Mr Sumption said there were three pieces of legislation which the UK could have used to deal with the pandemic, and added that the government “controversially” chose the public act, which does “not confer specific powers” to impose a lock down.
He said other countries can learn “two main lessons” from the actions of the UK, such as that a government must be “very specific” if it is to impose measures which “drastically interfere with liberty”, and that it is “extremely important” to have a high level of scrutiny of powers.
Mr Buquicchio said that measures imposed to restrict the spread of the virus must be necessary, proportionate and temporary.
