Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

This is the first legislation that has been debated under the new rotation and time slots. We want to again talk about our displeasure in respect of this. It was always the case that the Government presented the proposition and the Opposition got the opportunity to respond. That has now changed in that there is a second Government slot and a second Sinn Féin slot. In fact, that will continue to be the case. It interrupts the pattern of debate. We can see this since one party with six Deputies, the Labour Party, and another, the Social Democrats, which also has six Deputies, are being treated differently. I really want to continue to object to this.

Several of us were looking for the Dáil to be recalled and I am pleased that it has been. The expectation was that we would be talking about the strategy for dealing with Covid-19. We expected to be talking about the kinds of areas where there are great risks and looking at where there has been a direct and demonstrated impact. The meat industry was one of the issues we would have expected to debate in terms of the work environment, outbreaks and the consequences of the large outbreaks. I talked about that on Leaders' Questions earlier.

It is an irony that we are debating legislation brought forward in an emergency capacity for a sector that is largely closed and for which there is no date for when it will be reopened. That is an irony.

I saw an article in a newspaper over the weekend about an entity that wants to buy up the licences of smaller rural pubs so that it can have a greater degree of input on the off-trade. There will be consequences here and we need to look at those consequences. They are not inconsiderable consequences. We saw a great increase in domestic violence during the lockdown. There is possibly correlation between that and alcohol. Home drinking is far less regulated than drinking in pubs. That is something we should take note of.

I want to begin by saying that process matters. Poor processes can lead to poor outcomes. There are inadequacies in the process relating to this legislation, although I accept in principle that it is needed. We were asked to waive pre-legislative scrutiny on this legislation. Committees are not up and running and it would have taken several weeks before we could have made the arrangements, so it was a practical issue. Anyway, pre-legislative scrutiny really does enhance legislation. It listens to the people who are going to be practically impacted by it. What we get is practical legislation that is workable because we have had that input. It is regrettable that we have not been in a position to do that, although there is a variety of reasons for that.

Too often legislation is put on the Statute Book that is in force in theory but there is a failure in practice. That is why it is really important that the practical and legal aspects come together. Pre-legislative scrutiny is a relatively recent initiative but when it is done well it can make a real difference.

The second failure of process is that this legislation is rushed. Good practice would mean that a Bill is published well in advance and people have time to read and consider it. They would normally have a couple of weeks before it is published and debated, and the Second Stage debate is then about the principle of the legislation. The third failure is the inadequate time between the Second Stage debate and the Committee and Report Stages, which should be two separate stages. Again, this gives time to think, to consider and to consult. The fourth process failure is that there was no regulatory impact assessment, which should be a process where the capacity of those who are to enforce the legislation is considered in detail.

The fifth failure of process is that the legislation is being made by the Minister for Justice and Equality while the regulations are the responsibility of the Minister for Health. We know the regulations have been published and Deputy Howlin has more than gone into the detail of that. What we do not know is what further regulations might be brought forward. While there is a sunset clause, given we know Covid will not end on 9 November, there is every chance this will be recommitted and it will go on for an extended period beyond that. Indeed, there is probably a need for it to do so in order to have a mechanism to deal with a situation where some establishments are not adhering to public health guidelines.

The failure of process diminishes the legislation and it is not a standard we should accept. We are reluctantly accepting it because the committees are not in place due to Covid, but I believe we will come back to some of the points in this legislation due to the fact that process has not been followed.

There is no doubt that a number of restaurants and pubs have not adhered to public health guidelines, although it is a very small number. Those public health guidelines are there for very good reasons. A huge number of people are employed in the pub and restaurant sector and they need to have a framework under which they can work and under which public health can be protected. The lack of any kind of certainty for owners and employees is an added stress. If we are to live with Covid until we have a vaccine, we need to see a chart of how we are going to live with Covid and how sectors of society can be allowed to function, if they can be allowed to function. However, if they cannot, that has to be very clearly stated and there have to be targeted supports.

As I said, we agreed to deal with this legislation reluctantly because of the process issues. With regard to the regulatory impact assessment, I listened to Antoinette Cunningham of the Association of Garda Sergeants and Inspectors on the radio at the weekend. She asked that the Government would review the legislation if it is not working well. That is the kind of retrospective thing we do all the time due to not anticipating problems, and anticipating problems is about process. Ms Cunningham described some of the Covid-19 rules for pubs as difficult to enforce. It will be Garda members who will be required to do that and, indeed, the Minister, Deputy McEntee, outlined a number of potential breaches. I am aware of a number of cases where there was genuine error in regard to whether 15 or 22 people were allowed outside of restaurants when use of the inside area was not permitted, for example, in lockdown areas. I believe those to have been genuine errors and they were immediately rectified. An issue can be stated to be bigger or more egregious than it is in fact, although we have certainly seen a couple of scenarios where there were very serious breaches.

Ms Cunningham said measures such as the requirement for pubs to serve a substantial €9 meal to patrons were complex to police. Gardaí cannot be there watching when a meal is produced, or watching who eats it, who is at the table and all of that. She asked the Government to consider whether it thought the provisions provided for in legislation were working well. We should not ignore that. Ms Cunningham said that if people say they have had a substantial meal, gardaí have no reason to disbelieve them. Laws cannot be grey; they have to be black or they have to be white. People either break the law or they do not break the law. It is either a case of advising someone to do something, or it is legally permissible. There is no grey area in the middle of that. Ms Cunningham called for the Government to make sure that any new law was practical and enforceable.

Again, this is where we come back to the failure of process. A regulatory impact assessment would have considered this, as would pre-legislative scrutiny. It was originally intended to legislate for gardaí to enter people's homes and, again, Ms Cunningham said that would be fraught with difficulty. I took it that gardaí would be permitted to enter people's homes when it was first announced. I commented on it the following day and the day after that I heard the Minister for Health say the Government was going to ask the Attorney General about it. I would have thought asking the Attorney General would have been done first, so that surprised me.

I do not want to see a situation where the Minister is asked in six months time what has been done and she lists many things but some of them are only there in theory rather than in practice. The point made in regard to the loss of public support and goodwill is incredibly important. It is very important that we continue to have policing by consent, which has stood this country well. Communication is at the core of policing by consent so people know exactly what is legal and what is not legal and it is articulated very clearly to them. The public needs to be educated and engaged on regulations, with enforcement remaining as a last resort. It is crucial that consent is not eroded during a time of crisis but I think there is a real possibility of that.

Garda checks under Operation Navigation in early July found that, of the 2,785 pubs inspected, 26, or 0.9%, had potential breaches. I do not know what the degree of those breaches was, but they were “potential” breaches. The fact it could not be made absolutely clear they were breaches demonstrates the point. Inspections were attempted in 6,830 licensed premises, meaning that only 40% were in business at the time and 60% were not. Obviously, there is no date on the plan to re-open pubs, which makes the discussion around this legislation odd, to say the least. This is the third time the re-opening of pubs has been delayed. There are very real issues in regard to the bank moratorium on pub mortgages that will expire at the end of the month. This is a critical issue in terms of people's jobs, livelihoods and businesses.

The Irish Council for Civil Liberties has welcomed the fact the new laws do not extend to gatherings for house parties and I certainly would not endorse people having house parties that put the public at risk. However, there is a real issue in regard to the constitutionality and proportionality of gardaí enforcing that.

It is not part of this legislation and I do not suggest that it is.

On section 4, there is the potential for an administrative error here in that it appears that a report can be done in retrospect. I ask the Minister to clarify the legislation in which there is a precedent for doing this because there is the potential for this to present as a problem. On the six months' imprisonment, I ask the Minister to comment in her closing statement on the level of breach that would warrant a six month prison sentence because it is a significant sanction.

Section 11 provides for a superintendent to object to the renewal of a licence at a future date based on breaches of the Act. Could that happen in one, five or ten years? It is a unique environment that we are in. What would be the level of breach that would lead to that type of scenario? That would be an important issue into the future. I am particularly interested in hearing the Minister's responses to what are advisory measures and what are laws that are legally enforceable. Deputy Howlin raised many questions in that regard. It is really important that we have clarity on this issue, it being the issue that will determine whether or not we can support this legislation. In theory, we do support it. It is important that the Minister also outlines, given this legislation is being rushed through, if it is being rushed through with a view to having a date on which pubs can reopen with a set of rules or what will be the circumstances under which that will be decided. Will it be exclusively on advice from NPHET? Will it form part of the roadmap? These issues are important. I ask the Minister also to address the issue of the real consequences at the end of the month in regard to mortgages and the six month moratorium. There needs to be a degree of fair play in this area. I have not been engaged with by any publican. There is an understanding that there needs to be fair play and some degree of certainty. If this is part of providing that degree of certainty what else is required such that people will have access to information with which they can work?

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