COVID-19: All-island Perspective - Utilities and Infrastructure - Arthur Cox
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INFRASTRUCTURE, CONSTRUCTION AND UTILITIES
COVID-19: All-island Perspective -
Utilities and Infrastructure
9 April 2020
On 7 April 2020 it was announced that
the Departments of Health in Ireland
and Northern Ireland agreed a
Memorandum of Understanding to
strengthen North-South cooperation
on the response to the COVID-19 pandemic.
In addition to being a responsible the Health (Prevention and Protection the manufacture of electrical equipment,
approach to public health, increased and other Emergency Measures in the machinery and other equipment.
cooperation will be welcomed by many Public Interest) Act 2020. The Regulations • 3. Supply, repair and installation of
entities operating in both jurisdictions. In have effect from 8 to 12 April 2020 but machinery and equipment: (a) the supply,
this briefing, we look at measures aimed Regulations may be made for further repair and installation of machinery
at curbing the spread of the virus, and in periods. and equipment (including mechanically
particular how they relate to utilities and propelled vehicles, industrial machinery
infrastructure services. First, the Health Act 1947 (Affected Areas)
Order 2020 designates the State as an and equipment) for essential services.
“affected area”. • 4. Electricity, gas, water, sewage and
IRELAND waste management: (a) the generation,
Secondly, the Health Act 1947 (Section transmission, supply and distribution
In Ireland widespread social distancing 31A – Temporary Restrictions)(COVID-19) of electric power; (b) the extraction and
measures and travel restrictions are in Regulations 2020 restricts movement distribution of gas; (c) the collection,
place subject to certain exceptions for within the affected area. Regulation treatment and supply of water; (d) the
essential workers and supply chains. 4(1) provides that a person living in collection of waste ... and other waste
Current restrictions began on 27 March an affected area shall not leave his or management treatment and disposal
2020, when the Taoiseach announced her residence without a reasonable activities.
that, for a two-week period until Easter excuse. Regulation 4(2)(a) provides that,
Sunday (an extension of which is without prejudice to the generality of • 5. Construction and development: (b) the
expected) everybody must stay at home what constitutes a reasonable excuse, repair, maintenance and construction of
in all circumstances, except in several it includes a person leaving their place critical road, rail and utility infrastructure;
situations, one of which is “to travel to and of residence to “provide, or assist in the (c) the supply and delivery of essential
from work, or for purposes of work, only provision of, an essential service, whether for or emergency maintenance and repair
where the work is an essential health, social remuneration or not”. Executing essential services to businesses…. on an emergency
care or other essential service and cannot be legal documents is also a reasonable call out basis.
done from home.” excuse under Regulation 4(2)(l). • 7. Transport, storage and communication:
(b) road, rail, sea and air freight; (d)
The following day the Government Essential services are set out in Schedule the operation of ports, harbours and
published a List of essential service 2. While the full Schedule 2 list of essential airports; (f) warehousing and support
providers under new public health services should be consulted, extracts activities for the transportation of goods;
guidelines to provide guidance to likely to be of most relevance to utilities (g) the control and critical maintenance
employers and employees as to what and infrastructure services are set out of the transport infrastructure network
constitutes an essential service where below: (including roads).
workers cannot work from home and
• 2. Manufacturing: (k) the manufacture of • 9. Information and communication: (c) the
have no option but to travel to work.
products necessary for the supply chain provision of services necessary to deliver
To underpin these measures the of essential services; (l) the manufacture and support wired telecommunication
Minister for Health has signed two sets of computers, electronic and optical activities and satellite telecommunication
of Regulations pursuant to powers under products (including semi-conductors); (m)
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COVID-19: All-island Perspective - Utilities and Infrastructure
activities and other communications the list. jurisdiction on the other recognising that
activities (including internet and cloud • The Regulations provide that the need the introduction of such measures may
providers); (d) the provision of data centre for the above restrictions must be differ reflecting differences in COVID-19
services and related services. reviewed by the Department of Health transmission at different stages of the
• 11. Professional, scientific and technical every 21 days, with the first review public health response.
activities: (a) the provision of engineering, taking place by 18 April 2020. Where appropriate the Participants will
technical testing activities and analysis; adopt consistent public messaging to
(c) regulation, inspection and certification The Northern Ireland Executive indicates
here that it has agreed that anyone who build and reinforce core communications
services…. around handwashing, respiratory
can work from home must work from
Gardaí are given powers to direct people home, and that employers must facilitate hygiene, no handshaking and other social
to take necessary steps to comply with working from home where it is feasible. distancing measures.
Regulation 4(1) and a person who fails Safety measures advice for businesses
to comply with such a direction shall is also available. The Foreign and
be guilty of an offence (punishable by Commonwealth Office advises against all MANAGING YOUR CONTRACT
fine up to €2,500, up to six months but essential travel worldwide. Contracts may provide mechanisms
imprisonment, or both). to manage circumstances in which the
A main difference between public health performance of a party’s obligations
As regards travel advice (and subject to guidance in the two jurisdictions is are impacted by reason, for example,
the provisions of the above legislation) the length of time recommended for of force majeure, or of a public body
the Department of Health advises against self-isolation where a person or family exercising authority under law, or by
all non-essential travel overseas. This member has experienced symptoms or the introduction of a new law. Whether
does not apply to Northern Ireland. has had the COVID-19 virus. Information an impact of the current public health
Anyone coming into Ireland, apart from is available here for Ireland and Northern measures on business operations falls
Northern Ireland, is required to restrict Ireland. within contractual provisions is a question
their movements on arrival for 14 days. that can only be determined following
Essential supply chain services such as scrutiny of the individual contract
hauliers, pilots and maritime staff are KEY WORKERS IN NORTHERN
concerned. We have looked at some of
exempt and may continue their work IRELAND
these types of contractual mechanism
(unless they are ill or displaying symptoms Schools in Northern Ireland are expected in previous briefings, available here and
of COVID-19). The Government has also to provide supervised learning for here. We note also that parties may wish
published guidance for supply chain children of key/critical workers (to enable to take a collaborative and cooperative
workers. those workers to continue with their approach to agreeing innovative interim
jobs). The list of key/critical workers is solutions to achieve continuity of services
set out here and is described as not where permitted and in a safe way. In
NORTHERN IRELAND being prescriptive; rather to give some doing this parties will wish to ensure that
Similarly, the requirement in Northern guidance, it outlines “the broad categories they do not inadvertently breach the
Ireland is to stay at home unless there of what would be defined as a key/critical conditions of their contracts, and clear
is reasonable excuse to travel. There is worker”. They include: and regular communication between
an indicative list of what constitutes “key parties is important in achieving this.
• transport, to include those keeping
workers” (whereas the “essential services”
air, water, road and rail transport Our COVID-19 Employment FAQs are
list in Ireland is presented as a more
modes operating during the Covid-19 available here for Ireland and Northern
prescriptive list of the entire range of
response; and Ireland.
services that are considered as essential).
• utilities and communication, to include
The key restrictions are imposed under staff needed for oil, gas, electricity and
the Health Protection (Coronavirus, water (including sewage) and primary SAFETY AND CONTINUITY
Restrictions) Regulations (Northern industry supplies to continue during Measures taken to slow the spread of
Ireland) 2020. the Covid-19 response, as well as key COVID-19 are framed slightly differently
staff in telecommunications, post and in each jurisdiction and are dynamic.
• Regulation 5 prohibits people from
delivery, banking and waste disposal. They present different challenges to
leaving the place where they are
living without reasonable excuse. A various sectors. Unlike the case in many
reasonable excuse includes the need to other sectors in which business activity
MEMORANDUM OF may be restricted or stopped altogether,
travel for the purposes of work where UNDERSTANDING BETWEEN THE
it is not reasonably possible for that there is an expectation of continuity of
DEPARTMENTS OF HEALTH IN
person to work from the place where IRELAND AND NORTHERN
service provision by utilities and other
they are living. IRELAND essential infrastructure. Entities operating
in these sectors have now had several
• Regulation 6 prohibits people from The Memorandum of Understanding
days to take stock of their new working
participating in a gathering in a public between the Departments of Health in
environment. Monitoring and complying
place of more than two people except Ireland and Northern Ireland includes
with current public health guidance
in a number of situations, one of which agreed objectives relevant to measures
across the island of Ireland, and properly
is “where the gathering is essential for impacting businesses operating in both
fulfilling duty of care and health and
work purposes”. jurisdictions. These include, for example,
safety obligations towards employees,
• Regulations 3 and 4 require the closure the following:
requires agility and sustained effort. It
or restricted operation of businesses The Participants will share information is hoped that enhanced cooperation
and services listed in Parts 1 and 2 and discuss appropriate social distancing between the administrations and clarity of
of Schedule 2. The nature of these measures being considered, including communication to the public will assist in
businesses and services are that they public health-mandated travel restrictions. ensuring that expectations, and how best
cater for, and involve interaction with, to meet them, can be well understood by
the public. Utilities do not feature on Consideration will be given to the potential businesses.
impact of measures adopted in one
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3 COVID-19: All-island Perspective - Utilities and Infrastructure KEY CONTACTS Alex McLean Niav O’Higgins Aaron Boyle Karen Killoran Partner, Dublin Partner, Dublin Partner, Dublin Partner, Dublin +353 1 920 1195 +353 1 920 1090 +353 1 920 1213 +353 1 920 1097 alex.mclean@arthurcox.com niav.ohiggins@arthurcox.com aaron.boyle@arthurcox.com karen.killoran@arthurcox.com Paul McBride Chris Ritchie William Curry Cahal Carvill Partner, Belfast Partner, Belfast Partner, Belfast Partner, Belfast +44 28 9089 4531 +44 28 9026 5542 +44 28 9026 5881 +44 28 9026 2659 paul.mcbride@arthurcox.com chris.ritchie@arthurcox.com william.curry@arthurcox.com cahal.carvill@arthurcox.com Mary Liz Mahony Niamh McGovern Kate Monaghan Nicole Ridge Associate Associate Associate Associate +353 1 920 1066 +353 1 920 1208 +353 1 920 1156 +353 1 920 1863 maryliz.mahony@arthurcox.com niamh.mcgovern@arthurcox.com kate.monaghan@arthurcox.com nicole.ridge@arthurcox.com Maeve Crockett Ciara Dooley Fiona Ridgway Kim O’Neill Associate Associate Associate Associate +353 1 920 1284 +353 1 920 1855 +353 1 920 2064 +353 1 920 2121 maeve.crockett@arthurcox.com ciara.dooley@arthurcox.com fiona.ridgway@arthurcox.com kim.oneill@arthurcox.com Brian Gillespie Sinead Flanagan Claudia O’Sullivan Dearbhaile O’Brien Associate Associate Associate Associate +353 1 920 2011 +353 1 920 1372 +353 1 920 1315 +353 1 920 1447 brian.gillespie@arthurcox.com sinead.flanagan@arthurcox.com claudia.osullivan@arthurcox.com dearbhaile.obrien@arthurcox.com Fionn O’Dea Katrina Donnelly Associate Professional Support Lawyer +353 1 920 1740 +353 1 920 2122 fionn.odea@arthurcox.com katrina.donnelly@arthurcox.com Dublin Belfast London New York San Francisco +353 1 920 1000 +44 28 9023 0007 +44 207 832 0200 +1 212 782 3294 +1 415 829 4247 dublin@arthurcox.com belfast@arthurcox.com london@arthurcox.com newyork@arthurcox.com sanfrancisco@arthurcox.com arthurcox.com
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