“The rule of law, human rights and an ‘Emergency’: has the Irish State struck the correct balance?”

Human rights and the rule of law are political ideals which stand in a complex theoretical dynamic with one another. Can the rule of law exist when human rights are infringed? Is the rule of law a pre-requisite for the enjoyment of human rights? The situation is further complicated in the presence of an emergency, when both are threatened and may need to be temporarily suspended for the common good. In light of these normative tensions, this thesis reconceptualises the ideal of the ‘rule of law’ by illustrating the shortcomings of an inflexible rules-based approach, in light of the heightened adaptability of a human-rights based framework. It then explores the contours and parameters of what constitutes a legal state of emergency, and how such a situation can be successfully surmounted.

Since the foundation of the Irish State, the rule of law has been challenged by, at least, three distinct crises. First, through the seemingly ubiquitous subversive threat posed by the Irish Republican Army (IRA), and the transient dissident threat emanating from other political or quasi-political organisations such as ‘the Blueshirts’ and the Irish National Liberation Army (INLA). Secondly, through the health emergency generated by the SARS-CoV-2 virus. Thirdly, through the precarious economic situation precipitated by the financial crash of 2008. Although most states have had to contend with subversive organisations at some point within their history, the precise minutiae of the first mentioned situation have largely been unique to Ireland. The Covid-19 pandemic was a global phenomenon which impacted every state on the planet, while the financial crash of 2008-2010 was a common experience, with subtle differences, across a significant number of developed states.

This thesis identifies common threads between the three legal emergencies, and measures the success of the Irish State in combating each threat, whilst simultaneously safeguarding the necessary rights-based conception of the rule of law. Through doing so, the research will enrich the theory underpinning the degree to which a state can transiently override the rule of law and human rights to address an emergency, and will inform Irish authorities as to how they can better prepare, on a legal basis, for future emergencies.