Fly Now, Pay Later

Green usually means go, right? When the traffic lights turn green it signals the driver to proceed. But no, said our government, green means only proceed in essential circumstances. Such choices of language in the government's communication of the so-called green list made the ensuing confusion  entirely predictable. From Thursday of last week, the travel advice was changed, permitting travel to green list countries provided "normal precautions" were taken. This was a sensible move. Statistically-speaking you are less likely to have COVID-19 in countries such as Greece, Lithiuania and Malta than in Ireland.

I sense that Leo Varakdar in his new position as Tanaiste is experiencing a degree of schadenfreude, peering over at the challenges ahead of the older-but-not-necessarily-wiser Taoiseach Michael Martin. In spite of the catastrophic levels of nursing home deaths, he was widely considered to have provided the strong and stable leadership required to steer Ireland through the lockdown. Ironically, as the ballot boxes were put into storage for the next vote, opinion polls soared in favour of Fine Gael.

In my view, the now former Taoiseach had an easier political task than the one facing Michael Martin. By later March most European countries had entered lockdown and Varadkar followed suit. There was no need to bargain and plead for the cooperation of the people. Businesses closed, working  from home began and a widespread Garda presence strongly discouraged people to breach the restrictions. The public were compliant as a result.

Martin on the other hand will have to navigate Ireland through the choppy waters ahead. This involves reopening schools successfully, reignite the economy, reduce unemployment rates and taper away some of the social welfare benefits extended during the lockdown, amidst a likely second wave  of COVID during flu season this winter.

All parties in the government political threesome are providing colour so far. Barely a wet week into the new government and one Minister has been sacked, another Minister narrowly escaped losing the leadership of his party and in a completely tone-deaf move, Super Junior Ministers (whatever they are?!) gave themselves a pay rise of €16,000. The storm clouds have formed.

Heather Humphreys, Minister for Social Protection

Yesterday, Michael Brennan, Political Editor of The Business Post revealed that those in receipt of jobseeker's payments and the pandemic unemployment payment who go abroad (against the government's advice) will have their payments removed from them. In fact, this little known about regulation permitting this has seen 104 people lose their payments thus far. It was a shrewd but covert and deceitful way for the government to strongly discourage the 290,000 odd people on the Pandemic Unemployment Payment (PUP) from holidaying abroad.

Minister for Social Protection Heather Humphreys had signed a statutory instrument (effectively by stealth) on the 10th July amending 2007 Social Welfare regulations. I have several concerns with this regulation regarding its contents and how it was passed.

Humphreys, like most if not all Ministers, is conferred powers through legislation to make her own regulations in certain areas. She can unilaterally sign these regulations, without the need for a full Dail vote. The rationale is political expediency and in the vast majority of cases these regulations are not problematic. However, a similar instrument in Ireland was found unconstitutional in 2015, leading to a number of drugs being legalised. This event became known as 'Yoke Gate' and I expect it to feature on the forthcoming series of Reeling in the Years.

When there is no public Dail vote on a law, there is no public debate about it. This explains why this regulation came in under cover of darkness and was not picked up by the newspapers until 17 days following its passing.

Amid all the discussion about which countries would appear on the green list and what constituted essential travel and not, nothing was mentioned about the consequences of going abroad for those on the PUP or jobseeker's allowance.

The contents of this regulation are worrying. It should not apply to those returning from green list countries. It states "jobseeker’s benefit or jobseeker’s benefit (self-employed) will only continue to be payable where the claimant is on holidays in accordance with the General Covid-19 Travel Advisory in operation." Meanwhile, The Business Post reports that people who travelled to destinations on the green list have had their payment cut. As of the change of advice last Thursday, this move does not appear to be lawful. This is because the latest Travel Advisory from the DFA, as mentioned above, allows people to travel to green list countries whether or not that travel is essential.

It should also not apply to those on the PUP. The government's justification for this measure has been that existing rules allow those on jobseeker's benefit to leave the country, but only for a maximum of 2 weeks and with prior approval. I accept that the policy rationale of curbing welfare fraud. Further, the purpose of jobseeker's benefit is just that: to support jobseekers. How can one be a jobseeker if they are not present in the state to seek a job?

However, there is a crucial difference here. The Pandemic Unemployment Payment (PUP) is not intended for jobseekers. It is for those who have been laid off as a result of the virus - a temporary measure for employees anticipating to return to their post when their employer reopens. Therefore the same rationale does not apply as with jobseeker's benefit.

It should be recalled that these penalties are based on travel advice and not legally-binding restrictions preventing citizens from leaving the state. For that would breach the implied constitutional right to travel. Isn't this being breached anyway, though? 

Individuals are not treated equally under this law. Those receiving the PUP or jobseeker's benefit will face economic consequences for leaving the state. Those not on either (ie. those not unemployed) will face no economic consequences. This strays into the territory of the Chinese hukou system, which cuts off the social benefits of rural citizens who dare to migrate to a built-up urban area. Fine Gael probably does not want to be mentioned in the same breath as the Chinese Communist Party.

If it wasn't bad enough that this regulation was brought in so quietly, one wonders whether it is evenly applied. Reportedly, social welfare inspectors are working with Gardai and immigrations officials at airports. Are they doing random spot checks or is everyone being checked?

The law has to be clear. The law has to be equally applied. If it fails these two tests, it is unjust. This regulation falls at both hurdles.

To add to the growing mountain of legal issues with this measure, there are also data protection concerns. What information are immigration officials asking individuals for? Do individuals have a right to remain silent when asked questions? Do officials have access to data on whether an individual is in receipt of the PUP? If so, why? Tread with caution for lessons on data protection from the Department of Social Protection. This is the same Department which brought you the famous "mandatory, but not compulsory" (huh?) public services card, the use of which is illegal in many circumstances according to our Data Protection Commissioner.

This regulation deserves further legal scrutiny and perhaps a constitutional challenge. The green list is now clear: people can travel to these countries for any purpose and without needing to quarantine on return. The government must trust the good judgment of the public to be sensible and follow its advice, particularly given that the public has shown its capacity to be reasonable over the past three months. Authoritarian, discriminatory and highly punitive measures like this are not necessary. 

Last week, over 10,000 people entered Ireland from the UK. We won't let Irish tourists go there, but we're letting UK tourists come here. How can that be squared? The government ought to focus less on nationals leaving the country to holiday and more on tourists entering.