Brendan Howlin (Wexford, Labour) | Oireachtas source

I thank the Deputies who have contributed to the debate although much of it was Second Stage debate again. We covered a lot of territory. I wish to be clear that the Labour Party supported the legislation, reluctantly, because it is not normal legislation to provide such significant powers to a Minister, in this case the Minister for Health, to draw up regulations that are penal provisions and are crimes punishable by fines or imprisonment. That is not normal, but we do not live in normal times and for that reason we supported the legislation on Second Stage. Equally, we as a House have absolute responsibility. I listened to some of the Government contributions. Deputy Bruton did not mention the amendment. We need to ensure that the laws we enact are very clear. I was taken by the Minister's comment that this will provide clarity to members of An Garda Síochána. Like others, I listened to the representative of the Association of Garda Sergeants and Inspectors last weekend. The representative body of middle ranking members of An Garda Síochána says the current corpus of law is not clear to them. That is not good. We need to have clarity for our citizenry on what is and is not allowed, what is punishable by law and what is not, and we also need it for those who we charge with enforcing the law. That is why we have responsibility in this provision, emergency as it is and necessary as the majority of the House believe it to be, to be as correct as we can make it. That is why in amendment No. 1 which I put down, I want to be very clear that in normal law the Bill before the House sets out to define what each phrase in the Bill and subsequent Act is meant to mean. The interpretation section, which we supported, states "the purposes of giving a direction under section 31A(7) of the Act of 1947, whether in relation to a relevant provision", and a relevant provision is a relevant provision of this Bill. The problem is that contradicts the section we are debating, namely, section 3, which gives the powers to members of An Garda Síochána in uniform or not to enter without a warrant any relevant premises. The Minister and Deputy Kenny are absolutely right that the premises that can be entered are very clearly set out and limited to those set out in subsection (2) which is any premises which is licensed for the sale of alcohol. It is confined to that and I have never suggested otherwise. It is for the purpose of giving a direction under the amendment we already made to the 1947 Act in March which is to allow the Minister to make provision for the protection of the community against Covid-19. My problem is that the Minister, in the draft before us, wants to go further than that. I refer to the purpose of giving a direction under section 31A(7) of the Act of 1947, whether in relation to a relevant provision of this Bill or otherwise. If I understand the Minister's response, which we have just heard, the "or otherwise" refers to other penal provisions that are made that are not encompassed by this Act but it does not say that. It does not state for "the purposes of giving a direction under section 31A(7) of the Act of 1947, whether in relation to a relevant provision of this Act or any other penal provision in relation to the 1947 Act", but it states simply "or otherwise". That will add confusion, uncertainty and diminish the effectiveness of the legislation and the intent of the Minister. I ask the Minister to accept the amendment. It does no damage to the intent of the Bill, which, as many said, is to provide an environment for the safe operation of licensed premises.

In my Second Stage speech I pointed out that many of the provisions set out by the Minister in regulations, which he signed on Monday, are not penal, and that people will assume have the power of enforcement but that simply do not. Some of them were spun by the Government. For example, I read in the newspapers that it was intended to make it mandatory for staff in bars to wear masks, which I think would be reasonable, but that is not in the penal provisions in the draft signed by the Minister for Health. Maybe it is intended for a series of amendments to be signed in the future. One of the House's concerns about legislation like this is that it enables the Minister for Health to make regulations under the 1947 Act that will create new crimes. We can annul that in due course but it is an extraordinary power.

I am not certain that it is entirely a constitutional power for a Minister, under a statutory instrument, to create new crimes that are punishable by imprisonment or fines.

We travelled that road when we passed, I think unanimously, the legislation in March to give the Minister for Health the power to do that, but let us now be very cautious in each of the steps we are taking. Having listened to the reasoning given by the Minister, Deputy McEntee, for demanding the retention of the words "or otherwise", I ask her to think again. It is not confined, in the way she has suggested, to penal provisions, because it does not state that. The words "or otherwise" have to be read as simple English - that is what legislation normally is - rather then what one intends them to mean. Legislation means what the words actually mean, and the relevant words here are "or otherwise".

I think it would be much safer, and we would achieve the objectives of the majority in the House, if we were to create a protective environment where all pubs can be open. As I said in my Second Stage contribution yesterday, from the beginning I questioned the then Minister for Health about the notion that selling food to a value of €9 was somehow an acceptable way to determine which pubs should be allowed to open. I, like others, have met publicans from my constituency. Along with the four other Wexford Deputies, I have heard that more and more publicans are selling food of some description simply to survive. Allowing more venues to open would put less pressure on those that are open, in terms of the concentration of public business.

I am anxious, as everybody else is, including the Labour Party, to facilitate the opening of pubs. I ask the Minister to set out a roadmap for the opening of all pubs, and the Bill will help that. In order to do that, however, we need to do it in such a way that every publican, public house owner, operator, worker or client, and above all, every member of An Garda Síochána, knows exactly what the legal powers are. I respectfully ask that those of us who want to support the Minister, and who have supported her in what she is doing with the Bill, concede that the inclusion of "or otherwise" is an ambiguity too far and accept the amendment.

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