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

• Pages: pp 189 - 194
• Published date: 12 July 2022
• Date: 12 July 2022

189

Remarks by

DR DAVID KENNY*

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

mistakes.

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.