Alan Kelly (Tipperary, Labour) | Oireachtas source

By God, the Minister needs to listen. It is ridiculous.

As I was saying, the rules in question were never put into regulations, and that was not because the Government does not have the power to do so. The Oireachtas gave that power to the Government in March. For some reason, however, that has not been spelled out, the Government has preferred a confusing approach whereby some public health rules have no legal status, while others are put into regulations but made non-penal. That means there is no power to enforce them or to penalise any contraventions. In addition, a third category of rules has been made fully penal.

It is not helpful when some people, here and outside, refer in a blanket way to all the restrictions as prohibitions and bans. They are not. Such references reinforce the public perception that rules are being enforced and flouted. The reality, in law, is that the Government in many cases did not make enforceable rules in the first place. We cannot go into level 5 with such a mismatch between Government public health pronouncements and Government regulations. An Garda Síochána can only lawfully enforce level 5 restrictions when they are reflected in the law. Fudges do not work.

The public may be concerned about the lack of Garda enforcement, but the first step is to use the already available power to make regulations that explicitly prohibit contraventions of public health restrictions. The second step is to make those restrictions penal and the third step is to bring in prosecutions. This is not impossible, and has happened in a limited number of District Court cases. We believe it is necessary to stress that these powers are already available to the Government. It, however, has chosen, for its own reasons, which the Minister might wish to explain, to not avail of them to any major extent. This Bill is about conferring an additional power as an alternative to a summons and prosecution in front of the District Court. In lieu of issuing a summons, a Garda may decide in certain classes of offence to serve a fixed penalty notice. If the penalty is paid, there is no prosecution.

It is worth noting that although there is a provision for fines of €2,500, that penalty can only be imposed by a court under the provisions of this Bill, while a fixed charge will be €500, or less. It must be stressed again that this legislation will kick in only if the Government first makes regulations and then specified in those regulations that some of the provisions are to be penal. That is more than the Government has been prepared to do to date. This Bill would also require the Government to undertake a third step by specifying that certain penal regulations were also to be fixed penalty provisions, to which the new Bill would then apply. The Government must make penal regulations under the law we are renewing now, and that adequately reflect the level of restriction announced by the Minister as public health policy. In no way, should we continue with the mismatch of communications to the public not grounded in law and we also cannot continue to put An Garda Síochána in an invidious situation where its members do not have the powers to do what the public, in some cases, think they can.

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