James Lawless (Kildare North, Fianna Fail) | Oireachtas source

I will move onto my next question. There is a common theme. Professor Fennell spoke about clarity. With regard to my previous question, I am not necessarily stating that all of these situations should have criminal sanction, but what alternative sanction might exist? If we are passing regulations that are difficult, cumbersome and onerous on the public, it does strike me that there must be some sanction, be it civil or criminal. I believe that civil sanctions present difficulties. I heard Ms Cunningham on radio explaining that it is very difficult to enforce. I am not quite sure how the regulation would work. What other alternatives might there be if criminal sanctions are not appropriate? Do we just hope for buy-in? Experience might tell us that hope might work for 99% of the population but it would rarely work for the extra 1%.

In recent weeks, days and even yesterday, we have seen confusion about how hospitality and businesses might operate as people begin to emerge from their shells post lockdown and as businesses begin to trade again on the streets and outdoors etc.. With the outdoor hospitality we saw earlier in the pandemic, a few weeks ago we had difficulties in the city centre and few weeks before that, the takeaway pints issue raised its head. I spoke to a publican who told me that he was scratching his head because if he was serving takeaway pints then or food for consumption off-premises, he had to contend with litter by-laws and canal by-laws because his premises is beside the canal bank. He was dealing with the public health regulations and with the licensing laws. He also realised that he was dealing with road traffic laws because if he was selling a takeaway pint to someone who was going to get in a car and bring it home with a Sunday roast, technically the person was putting an open container in the car to bring home, even if he or she was not drinking it at the time. This was all in the course of a five-minute conversation. It struck me that it is really open-ended and one could probably come up with another 100 regulations and rules if one wanted to keep looking. That has been a difficulty. I wonder if there is a point here. The Government cannot always get it right: it cannot be exhaustive and it cannot be prescriptive. In the face of something so unexpected and novel, is there a degree to which common sense will work? We have already asked about discretion. Can this be an approach? Is that enough? We know that we need to have certainty in respect of criminal law in particular but in a situation where the majority of people are doing their best, and where there is the spirit of the law if not the letter of the law, can discretion and common sense, and a call to people's better nature, work? I open that question to any witness who wishes to take it. Perhaps we can take a response first from Dr. Lunn on the behavioural side.