Annual Lecture 2022: Emergency Powers and the Executive: Reflections on the Past and a Vision for the Future - Remarks by Dr. David Kenny

Pagespp 189 - 194
Published date12 July 2022
Date12 July 2022
Remarks by
It is an absolute pleasure to be here and to be speaking alongside such a great panel.
I have been thinking about the idea of the executive power and emergency powers
for a long time before this pandemic. In other words, you could say that I was
thinking about the executive power before it was cool. But it is still not cool – it is
just slightly more topical than it used to be.
e most important thing to say when discussing our executive response to
the pandemic is that there are positives and negatives in it. at is the nature of
emergency response. It is impossible to respond to an emergency in a way that
will be, rstly, entirely pleasing to everyone, but secondly, in a way that will avoid
e reality of law and policy making – that we do not oen like to admit at the
forefront of our political discourse – is that it is an experiment. Oen, you do not
know exactly what the precise outcome of a measure will be. You are hoping that
it will achieve a particular result. You are improvising – sometimes, in particular
in an emergency, improvising in a blind panic – to try and achieve results before
things get too bad. at is the situation that we are in when we try and use the law
to solve the incredibly complex problems that we face as a society. As we come out
of this pandemic, or at least as Jack put it, the acute stages of it, I think it is a really
interesting juncture to write a history of our present moment, to see what we did
well and what we can do better for next time.
In particular, I think one of the important things to realise about the Irish
pandemic response, something that Jack and Hugh have touched upon, is that this
is not a constitutional emergency. Ireland has constitutional emergency powers
provided in Article 28 of our Constitution, but they relate only to war and armed
invasion, or measures necessary for public safety in the event that the Dáil declares
an emergency related to that. It says nothing about public health. It says nothing
about epidemics or pandemics. And so much like a great deal of our subversive
or counterterrorism legal response, this is something that has been done with
ordinary law. We have these constitutional provisions that basically suspend your
* Dr David Kenny is Associate Professor of Law and Fellow at Trinity College Dublin, teaching and
researching Irish and comparative constitutional law. He is co-author of the 5th Edition of the
leading text on Irish constitutional law (Kelly: the Irish Constitution) and has written widely on
the executive and the executive power. He served as Public Governance Co-ordinator of Trinity
College Dublin’s COVID-19 Law and Human Rights Observatory; co- authored a report for the
Irish Human Rights and Equality Commission on the Human Rights impact of the pandemic
response; and presented the Oireachtas COVID-19 Committee on constitutional and rights issues.
Any views or opinions expressed in this piece are the personal views and opinions of the author.

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