Brendan Howlin (Wexford, Labour) | Oireachtas source

I think this is my first opportunity to congratulate the Minister on her election and her appointment. I am pleased to have the opportunity to deal with this important legislation. This is a criminal justice Bill and we all have to be careful when enacting criminal law. It is an emergency Bill. It has not followed the normal path of legislation for understandable reasons. There is no published explanatory memorandum and there has been no pre-legislative scrutiny. We will have little opportunity to have a Committee Stage debate because the deadline for submitting amendments on Committee Stage was this morning at 11 o'clock, before the Second Stage debate and before we could ask questions or listen to the views of the Minister. In general circumstances, that would all be entirely unacceptable, especially for criminal justice legislation.

We and the vast majority of people in this Parliament have supported all the efforts of the Government to deal with issues that have arisen to combat the pandemic that has befallen the world and that bestrides our own country. We need to continue to do that but we need to bring the people with us in that endeavour. We need to be clear on what we are about and open about what is and what is not law.

It is clear that this specific legislation is a reaction to some of the events that have happened, especially the horrifying views that people had of a situation in Dublin, where a barman stood on a bar counter, pouring vodka down the throats of clients. People assumed that that could be acted on but the only criminal sanction the gardaí have is if a particular premises is not selling €9 worth of food to every one of its clients. The rest of the activities were covered by mere guidelines. They are not criminalised in any legislation. Much of what we are doing is basically giving guidelines to people and sometimes pretending that these have the force of law. We need to be clear and honest with people about what is or is not criminal.

The Government seems to have a view that when we are producing legislation such as this, the Government has to spin it to the public before explaining it to Parliament. In my view, that is unacceptable. For example, when it was clear last Friday that the Dáil was going to be recalled, largely because of the so-called "golfgate" event, this legislation was to be the centrepiece of this week's Dáil business. On Friday, we were told that part of the legislation would criminalise gatherings of more than six people in a private dwelling and that power would be given to An Garda Síochána to pursue such people. The Minister subsequently said that was never the Government's intention but somebody briefed authoritative journalists at The Irish Timeslast Friday, because that is where it was laid out. We subsequently read that it was being pursued by the Minister for Health but was abandoned because it was felt by the Taoiseach and others that it was going too far. We really need to bring the Members of this House with the Government with regard to all these matters. We have common purpose and a common view. The notion of "spinning" is not acceptable.

With regard to the legislation, we also read on Friday that it was going to be compulsory for staff members in pubs to wear face masks. That is not in the regulations that were published yesterday but maybe it will be. We do not know. That gets on to the point I made this morning, which I want to make clearly to the Minister. This is unusual criminal legislation.

It is criminal legislation that sets out mechanisms to enforce and the penalties to be applied, but does not actually specify the crime. In any other piece of criminal legislation the offence is laid out, the penalty for committing the offence is laid out and how An Garda Síochána is to enforce it is laid out.

In the briefing we had with the Minister's officials last Friday, it was clear that two different Departments are involved. The Department of Justice and Equality sets out the criminal sanctions for breaches of the regulations, or in other words the penalties for committing the crime, but the crime is to be set out by the Minister for Health, who is not here. I listened carefully to the Minister, Deputy McEntee, at the beginning of this debate but we do not actually know what specifically is to be criminalised either now or into the future. That is a very dangerous thing to be doing with criminal legislation. The removal of people's livelihoods is at stake here. The Labour Party's initial reaction, like that of our colleagues in Sinn Féin, is that we will stand foursquare behind the Government in ensuring so-called "rogue" operators are stamped out. There are two things we must do. We must be clear in what we are doing, and we must bring the public with us in understanding that. We must not pretend that offences are offences when they are not.

In essence, there are two parts to the proposals before the House: the Department of Justice and Equality's criminal sanctions, and the crimes or offences to be set out in regulations made by the Minister for Health. At the briefing on Friday, I asked the Minister for Justice and Equality's officials what specifically the offences are and where are the regulations are. These crafters of the legislation before us told me they did not know. I have never dealt with a situation where the crafters of the legislation did not know what the crimes being specifically legislated against were. They said that it was a matter for the Minister for Health and that it would be published on Monday. In fact, the Minister for Health signed 14 pages of regulations yesterday. The difficulty with the regulations is that some of them are what are known as "penal" and some are not penal. What is the difference? In essence, non-penal regulations are entirely advisory and nobody can enforce them. The penal regulations are enforceable. There is a strong view in jurisprudence that a law that is not enforceable is not a law at all. Regulations that do not carry a penal sanction are not regulations. I understand that some things are advisory. For example, this House will not make it a criminal offence to not use one's elbow when one sneezes. It would, however, be a criminal offence to sneeze into a person's face. I understand that this discernment has been made but a lot of the reaction we have had to the Covid-19 restrictions involves pretence. We pretend we are doing something we are not. I think we need absolute clarity on that.

I will take us through some of the 14 pages of regulations that were signed by the Minister for Health yesterday to see which are penal and which are not, as far as I can discern today. Regulation No. 5 applies to events in private dwellings of no more than six persons from no more than three households. This is not a penal regulation. It is unenforceable, either civilly or criminally, despite the utterances of the Taoiseach that the Minister for Health can prosecute. There is no such capacity. I have checked with lawyers. It is merely advisory. If this is not the case, perhaps the Minister, Deputy McEntee, will be very clear on the difference between penal and non-penal. Regulation No. 7 applies to cinemas, art galleries, museums and auditoriums with stages and fixed seating not exceeding maximum attendances of 50 people. Again, this is not a penal provision. Regulation No. 8 applies to weddings and imposes a maximum of attendance of 50 people, including staff. Again, it is not a penal provision and there are no enforceable powers. Regulation No. 9 is also a non-penal provision and covers sporting events. It limits necessary persons, participants, subs, coaches, medics and so on. Regulation No. 10 covers training. Again, it is a non-penal regulation. They are all encompassed in the same statutory instrument, SI 326 of 2020, which was published yesterday. Some of the regulations are merely advisory and some have the force of law.

We need to be very clear on what we are doing here. What is penal and will have the force of law? Regulation No. 6 applies restrictions to social recreational exercise, cultural entertainment or community events, other than those dealt with previously, and confines the numbers of persons attending to no more than six indoors and no more than 15 outdoors. This applies to the non-private household gatherings. Regulation No. 11 covers alcohol venues and continues the bans already in effect on casinos, nightclubs and pubs where no meal is served. They are penal provisions. A new closing time of 11.30 p.m. for pubs and restaurants is introduced in new regulations Nos. 11 and 12. Of course, off-licences are excluded, which is a penal provision. Regulation No. 13 provides that with effect from tomorrow, 3 September, businesses and services where drink is served for consumption on the premises must keep records of the time and date of arrival of customers, and a record of the substantial meals ordered. Food and drink must be consumed while seated at a table. Again, this is a penal provision that has the force of law.

While one must consume food at the table, which is a penal provision, other aspects of the regulations, for example social distancing and the maintenance of 6 ft are not penal provisions and are unenforceable. The guidelines on the amount of time a person can be in a venue refer to a period of one and a half hours, but this is not a penal provision. It is advisory. If the gardaí go in and if I am sitting in the pub, having had my €9 of food, and the proprietor has signed me in, I cannot see any reason I could not stay there for five or six hours other than a garda possibly saying he or she would object to the licence because there has been a breach of the substance of the guidelines, but not the penal regulations. I raise these issues because it is important when we create a law that we have a very clear sense and a clarity around what we are creating. I invite the Minister, Deputy McEntee, to address this when she concludes.

I absolutely accept that this proposed legislation is a timelined emergency piece of legislation that will end in November but I wish to highlight another problem that is very unusual in creating criminal law, which is that the Minister for Health retains the power to create new offences under this legislation. It is very unusual that criminal offences can be created by statutory instrument, even on a temporary basis. We need to be clear about what we do as legislators, even when we all want to do right by our people at a time of pandemic. We must maintain the authority of the House and the confidence of the people that we are maintaining the proper procedures. We must act wisely, proportionately and in accordance with best international practice.

I will pick up on a point made earlier. This morning, I read an interview given by the Minister for Justice and Equality in which she said this might open the way for so-called "wet pubs" to be opened. I welcome that. In June, I raised with the then Minister for Health, Deputy Harris, the very strange decision that somehow serving a cottage pie or a chicken korma could be a prophylactic against Covid-19. It made no sense to me. If the regulations, restrictions and guidelines can be maintained in one house, they can be maintained in another house. In my judgment, the eating of food is neither here nor there in that context. I think this policy has had the adverse effect of restricting the number of premises and concentrating the clientele in fewer premises, which is a bad thing.

I hope that this law will allow all premises that can be properly regulated and monitored in terms of adherence to the Covid guidelines to reopen. However, it is important for the Minister to set out clearly to this House, which she did not do in her opening statement, what penal regulations will be encompassed by this Bill. A minimum requirement is that, as Members of Dáil Éireann, we would know what criminal offences we are creating. That is hardly an outrageous request. If there are further regulations to be made, we need to know how they are to be made. Obviously the Minister can, under the 1947 Act, create new regulations, and we amended that Act earlier to provide the Minister for Health with the capacity to create Covid regulations, including penal Covid regulations. We need to know exactly what is intended by Government to be encompassed by this Bill.

I would like the Minister to be very clear, but as I read it, what is included here in the context of criminal sanctions will be the requirement for the proprietor to take note of the lead person in any group or any individual who is coming in and to take note of their contact details for contact tracing purposes; note the food ordered by that individual, presumably so that members of An Garda Síochána can check that if they come onto the premises; and ensure that food and alcohol ordered is consumed at the table at which the person is sitting. What about the other regulations and guidelines that exist, including those around social distancing, the wearing of masks by staff and serving drinks at the bar counter? Are they mere guidelines or are they to be enforceable too? People need to understand what is being required of them by the laws that we make. The very basic requirement of any decisions we make in this House is that they are clearly understood by our own people and that we can explain them. Earlier this year a Church of Ireland bishop got very annoyed when he discovered that the confinement of those over 70 was actually advisory and did not have the force of law.

We have to be clear on what is advisory and what is enforceable by penal sanction when we set out our strategy for dealing with the reopening of licensed premises so that people do it on the basis of a very clear understanding of what is required. I hope that the Minister will do that in her closing statement, but maybe she does not know the intentions of the Minister for Health in this regard. It is a different Department and there are different sets of advisers. Certainly when I asked the advisers from the Department of Justice and Equality who briefed us last week, they were not privy to the Minister for Health's intentions with regard to which regulations would be penal.

In everything we do at this critical juncture, we have to maintain the confidence of the people. I do not think anybody would doubt for a second that it has been very seriously eroded by some of the goings-on in the past couple of weeks, particularly by the Oireachtas golf society. We need to win that confidence back, and part of winning it back is being very clear, upfront and honest about what we intend to do and how we intend to do it. I hope that the Labour Party will be able to support this legislation but we will only do so on the basis of complete openness from the Minister and clarity on what exactly is intended to be regulated and what exactly is intended to have penal sanction.

See this speech in context