Oireachtas Joint and Select Committees

Tuesday, 22 June 2021

Joint Oireachtas Committee on Justice, Defence and Equality

Civil Liberties during the Covid-19 Pandemic: Discussion

Photo of Barry WardBarry Ward (Fine Gael) | Oireachtas source

At the outset, I will deal with some of the Garda issues. I have huge sympathy for the Garda. Its members have done a fantastic job under difficult circumstances. The country got into the mode of having a national pastime of catching friends, neighbours and family out, who were in breach of regulations, which was one of the most unfortunate features of the pandemic. Sometimes, gardaí got involved in that and ended up being the fun police rather than people who were enforcing regulations which were reasonable in some instances and unreasonable in others. There have been legitimate and unfair criticisms in the course of this meeting.

One of the most of important features of what the Garda has done is policing by consent and exercising discretion. It is, if not the most important, one of the most important aspects of policing in Ireland. It does not exist in many other jurisdictions. If you look at the rigidity of policing elsewhere in Europe, never mind places such as America, it results in injustice. We should be grateful for the fact we have highly trained and highly experienced gardaí who are in a position to exercise discretion and prevent things getting beyond a certain point. That is tremendously important.

You see an awful lot of criticism of gardaí online. You seem some tremendously unfair comparisons. You see video clips which are highly selective and take an incident without showing the context that gave rise to the incident etc. I accept the Garda has been in a difficult position in that and in respect of what has been said about the speed at which regulations have come down for enforcement and understanding.

At the same time, when we talk about discretion, the press release which went out earlier this week about the licensing laws was highly unhelpful and that difficulty in terms of the inconsistency of licensing laws has existed for a long time. It may have become more acute in the context of the outdoor dining scheme, but it is a key example of where the Garda can exercise discretion and manage things without having to make things worse.

In terms of the legitimate criticism I have heard, mandatory hotel quarantine is something of which I have been critical.

I just do not think it works. When there is an open border with a neighbouring jurisdiction it is a pointless exercise as it is very easy to circumvent.

The points Mr. Herrick made earlier about the deprivation of liberty are entirely valid and remain so. The issues with access to justice must be addressed as well and I absolutely support him in that regard. Clarity is also coming up as an issue and it is important. Of course, on the flip side of that, I point out the Government has been put to the pin of its collar as well. The Government is reacting all the time to the advice coming out from the experts, be that NPHET, the National Immunisation Advisory Committee or whoever. Reacting to that is not easy either. The lack of clarity and the fact that the ground is shifting all that time is a product of that changing advice as much as anything else. That is why what Mr. Herrick said about the need to return to normal democratic practice is a little unfair. Sometimes legislation must go through quickly and that is the reality. In the Seanad I have also been critical of the speed with which items have gone through and the lack of time there has been for Members to actually consider their implications. One particular issue came to a head on a Friday night in the Seanad last year, namely the health Bill which brought in the offences related to parties. Again, Garda members were expected to enforce something which was totally unworkable but which the Government was desperately trying to get in place in time for the weekend, and we ended up with a law that was actually unworkable. However, that happens all the time. When legislation is urgent it is sometimes necessary to push it through.

Again, on the flip side, there was talk about a Private Members' Bill from Sinn Féin which would have required Ministers to lay regulations before the Houses for two weeks to allow Members to consider it. While that sounds lovely the reality is that hamstrings the ability of the Government to react in a timely fashion. If the Government had to wait two weeks to implement any regulations then its reaction time would be massively slowed, especially when one takes into account that advice must be got and proposals must go through Departments and then the Cabinet. To have a two-week period piled on top of that actually creates more problems than it solves, although I agree that the volume of regulatory law that has passed is impossible for lawyers to digest, including those in the office of the Director of Public Prosecutions, DPP. I am delighted to hear they have been so helpful to the Garda but the notion that non-lawyers, or gardaí who have work to do on the beat, would be able to digest that material in a quick or accurate way is a difficult one.

Another fair criticism is there has not been a single authority to rule on things, be that what constitutes essential travel or what constitutes a breach of regulations, etc. I said a long time ago that there should have been a single person in either the Department of Justice or the Department of Health, or a call centre that could be rung, in order that one could get a definitive answer as to what was or was not within the regulations. The absence of that was unfortunate. Of course that is hindsight and it is easy to deal with the problems after they have become apparent.

I also accept what Mr. Geoghegan and others said about how certain groups have been disproportionately affected. There is no doubt about that. It is unfortunate and even now is something that must be addressed. Mr. Herrick talked of young men being particularly affected. Young men are disproportionately represented throughout the criminal justice system. It does not make it excusable or a good thing but I am not sure that is a particular feature of the pandemic. A much more clear feature is the impact on people in lower socioeconomic groups, those who did not have the capacity to react or survive during restrictions that made their lives very difficult. They were definitely disproportionately hit by that.

I know we are all pushed for time but I have a further main point to make. Enforcement is necessary. Dr. Lunn referred earlier to the erosion of confidence if there is ongoing and unchecked noncompliance with a regulation. We can all see that. We have particularly seen it recently as people feel we are exiting the pandemic, and God knows we all hope we are. There is definitely a feeling the rules no longer apply or are less important but the enforcement is still necessary. Mr. Herrick referred earlier to these matters, which he I think said were not crimes in the ordinary sense. I do not know if that is a fair characterisation of this. Take speeding for example. Speeding could go into exactly the same category in that there is not a victim when a person speeds, until things go wrong and he or she crashes into another car or a person. The same is true of a breach of these regulations. There is not a victim when a person who has been told to self-isolate goes outside, until things go wrong and he or she passes the virus on to another person. They are crimes and there is an absolutely legitimate reason there are restrictions in place. We can argue over whether they are proportionate or not, and I agree and disagree with some of what has been said on that front, but the restrictions are there for a good reason.

As a general question, I ask how we should enforce that without crossing the proportionality boundary. Can we accept enforcement is necessary because if we accept there is no penalty, notwithstanding what was said about certain regulations which have no penal element, how can we possibly expect everybody to get on board with abiding by regulations that are there for everyone's protection?

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