Police have missed three proposed dates to respond to a legal challenge on whether officers have the power to enter private homes to enforce Covid rules.
tormont’s Department of Health has also failed to meet its own proposed timeframe for explaining the contention that its coronavirus regulations give police the authority to enter private dwellings to investigate alleged breaches, such as holding house parties.
Loyalist activist Jamie Bryson issued pre-action correspondence to the department and the Police Service of Northern Ireland on Sunday January 17.
Pre-action correspondence is the first step towards potential judicial review proceedings, and gives respondents a set period to remedy issues raised by an applicant.
Mr Bryson initially gave the parties until January 25 to offer a response to his challenge.
Solicitors for the PSNI and Department of Health engaged with Mr Bryson and said that deadline would not be attainable but they both then identified Monday February 1 as a date for response.
The PSNI lawyer then contacted Mr Bryson again to say February 1 could not be met and pushed the date back to February 5. He received no further correspondence from the Department of Health after it missed the February 1 date.
By the morning of Sunday February 7, Mr Bryson, who had also notified the Department of Justice as a noticed party to his challenge, had still not received a response from the police or health department.
“After three weeks and repeated delays – requested by PSNI and Department of Health – they have been unable to provide any legal justification for their bold claim that they have powers of entry into private homes for the purpose of policing Covid regulations,” said Mr Bryson.
Mr Bryson argues that Northern Ireland’s health protection regulations, specifically Regulation 7, do not bestow powers of entry to private dwellings in the absence of a warrant.
He contends that entry in such circumstances would breach common law principles and infringe human rights legislation.
The Police Federation, which represents rank-and-file officers, has also previously raised questions and sought clarity on the power of entry issue.
The PSNI and Justice Minister Naomi Long have both argued that the power is available to officers under the regulations.
Assistant Chief Constable Alan Todd has said the step would only be taken if it was considered “necessary and proportionate”.
Mr Bryson added: “I clearly set out in the correspondence that there was no lawful basis and why the reliance on Regulation 7 was wholly preposterous. They have been unable to justify their position.
“I suspect they may be seeking to drag this matter out in order to get beyond the current restrictions before the inevitable concession that in fact the bold claims of ACC Todd and the Justice Minister had no lawful basis whatsoever.
“It’s deeply concerning how the PSNI, DoJ and Department of Health have displayed such a woefully inadequate understanding of a very basic legal matter.”
Mr Bryson has made clear that he is not encouraging anyone to breach coronavirus regulations but has insisted his challenge involves an important point of legal principle.
Guidance prepared by the Department of Justice and PSNI acknowledges that entering a private dwelling does interfere with the occupants’ human rights.
It says that interference is justified for the protection of health, but only when it is “necessary and proportionate”.
The guidance states: “Entry to a home is a particularly invasive use of the Regulation 7(1) power and therefore should be considered as a tool of last resort.”
A spokeswoman for the Department of Health confirmed a pre-action letter had been received. She said it is still being considered.
The PSNI did not comment in response to queries on the issue.