Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I move: “That the Bill be now read a Second Time.”

Moving the country to level 5 is necessary due to the rapid and exponential rise in new cases of Covid-19. However, it comes as we all know at a huge cost to individuals, families, communities and businesses. It must work. For that to happen we need a very wide buy-in to the measures. Ireland’s experience of the virus to date shows that the vast majority of people are following the public health measures the vast majority of the time. Unfortunately, the highly contagious nature of this virus means that it exploits the times when we let our guard down. When even for a little while we choose not follow the measures the virus can spread fast. If we are going to suppress the virus in the next six weeks to the fullest extent possible we are going to have to be on our guard. Unfortunately, there is also small number of people who make conscious decisions not to follow the measures everyone else is following. Again, due to how easily this virus spreads the actions of these people put at risk the enormous sacrifices made by everybody else. So while solidarity, personal and collective responsibility are at the core of our national response to Covid-19, enforcement must also be available as a last resort.

Up until recently the only enforcement power available was the Health Act 1947 under what is called the penal provision. This is a prosecution in court with a maximum penalty of up to €2,500 and-or six months in prison, to be decided by the judge on a case-by-case basis. More recently the Minister, Deputy McEntee, introduced legislation allowing for what in the regulations are called “relevant provisions”. These are applicable for pubs, cafés, restaurants and essentially licensed premises and allows for them to be shut down in the first instance for that day or that night and for repeat offences to be shut for longer periods of time.

As I have said to colleagues in the House before, I do not believe that the current penal provision of up to €2,500 and six months in prison is proportionate for most of the violations of the regulations and that it is too harsh. This is why we have this legislation. It introduces tiered penalties, which are essentially on-the-spot fines of up to €500. The exact amount for each measure is specified under the regulations. For example, a fine relating to face coverings, which currently is a penal provision carrying a penalty of up to €2,500 or six months in prison, - which we all agree is disproportionate, can be replaced by using this legislation with an on-the-spot fine of, say, €50.

Ultimately, failure to pay the fine would leave recourse to prosecution but that is the case for many other fines as well.

Another power the Bill introduces is the ability to intervene in house parties where there is a public health risk and where it is proportionate to do so. I would prefer that we were not introducing this measure and I was not standing here as Minister for Health asking colleagues to support it. It jars with me on the basis of civil liberties. Unfortunately, the evidence is that social congregation, in particular when alcohol or more than alcohol is involved, is a particularly serious vector for the disease and, as such, Government has decided that powers are needed for An Garda Síochána to intervene where it is necessary and appropriate to do so. The Bill refers to these events as "dwelling events". The Bill also softens the existing penal provision in that it creates more level of penalties for the first and second offences and it only allows the existing level of penalties for a third offence or in certain cases, which I will lay out later, where the judge deems there to be aggravating circumstances. Importantly, in the case of dwelling events, the Bill only allows for the lowest level of the penalties, which is for the first offence.

If the Bill is passed, there will be five levels or categories of enforcement which can be stipulated in the regulations. The first is called non-penal. This is for measures which are included in the regulations so they need to be complied with by law but do not carry a penalty. This includes, for example, the maximum number of people who could attend non-contact training. The second category is penal. This is what we will now have three levels of penalty for, for first, second and third offences. This includes, for example, violation of the measures by retail outlets. The third category is what is called a relevant provision and this allows for licensed premises to be shut for the day, or for longer in the cases of further offences. The fourth category is fixed charge notices, which allow for on-the-spot fines. This would include, for example, domestic travel, face coverings and relevant indoor and outdoor events. The fifth category is the so-called "dwelling event" and this is specifically for large social gatherings in houses. This allows for only the first tier offence under the penal provision to be applied.

In summary, the Bill provides for penal provisions under the Act to be prescribed as fixed penalty provisions, meaning that persons alleged to have committed an offence under a fixed penalty provision may pay a fixed penalty in lieu of prosecution. It provides that, on prosecution, different levels of penalties may apply to first, second and third and subsequent offences under the Act and, finally, it provides for provisions to be prescribed as dwelling event provisions, meaning that if the Garda reasonably suspects a breach of such a provision, it may attend at the entrance to the private dwelling and direct persons to leave that private dwelling or the vicinity of that private dwelling.

I will go through the Bill section by section. Section 1 provides that "Act of 1947" means the Health Act 1947. Section 2 provides for the insertion of a definition of "fixed penalty provision", "dwelling event provision" and "penal provision". Section 3 provides for the insertion of subsection (6C) on fixed penalty provisions. Such provisions allow for a fixed payment notice to be served on persons in respect of an alleged offence. The person may opt to pay a fixed fine within 28 days rather than face prosecution in court. Paragraph (b) sets out the matters that should be taken into account when deciding to prescribe a penal provision to be a fixed penalty provision. These matters include the nature of the offence, how prescribing it would prevent the spread of Covid and the impact prescribing it might have on the normal functioning of society. Paragraph (c) provides that the Minister may make regulations for the form of notice and the process to be followed. Paragraph (d) sets out that the Minister must consult with the Minister for Justice and Equality before prescribing a penal provision as a fixed penalty provision.

Subsection (6D) amends section 31A to enable the Minister to prescribe penal provisions to be dwelling event provisions. Paragraph (b) of this subsection sets out the matters that the Minister should take into account when prescribing a penal provision to be a dwelling event provision. These matters are similar to the matters relating to the fixed penalty provision but also include the risk of Covid in indoor or confined areas. This makes sense because the alleged offence is occurring in a private dwelling indoors. As with the fixed penalty provision, paragraph (c) sets out that the Minister must consult with the Minister for Justice and Equality before making a decision.

Subsection (6E) provides that, in relation to proceedings for an offence in respect of a dwelling event provision, the event organiser shall be assumed to be the occupier unless proved otherwise. This means that if there is an event happening in a private dwelling that is not allowed under the regulation, the occupier of the dwelling is assumed to be the organiser. The offence here is by the organiser.

The Bill also provides for a new subsection setting out tiered penalties. As I have said already, the current legislation allows for a fine of up to €2,500 and-or six months in prison. It is proposed to replace this one-level provision with a three-tiered provision based on the number of offences committed. This provision applies when someone who is charged with an offence ends up in court. It is separate to a fixed penalty provision. If it ends up in court, then there is a reduced tariff for the first offence of a fine of no more than €1,000 and-or one month in prison, a tariff of €1,500 and-or three months in prison for a second offence and a tariff, which is currently the only tariff available, of €2,500 and-or six months in prison in respect of a third and subsequent offence. In a situation where someone is given a fixed penalty notice and does not pay in 28 days, it automatically becomes a court matter and these penalties come into play.

Finally, the new subsection also provides for a judge to impose a sentence of up to €2,500 and-or up to six months in prison where there are aggravating circumstances. This means that if the judge feels the offence is particularly serious, especially on public health grounds, then the judge can impose the highest tariff. The Bill also provides in section 3(c) for the substitution of a new definition in subsection (16) in section 31A of "event organiser". For a private dwelling, an event organiser is a person who arranges, organises or manages the event or otherwise causes or permits the event to take place. In a place other than a private dwelling, the event organiser is a person who publicises, arranges, organises, manages or receives some or all of the proceeds from the event. It also defines the terms "licence", "occupier" and "owner". Section 4 of the Bill provides for fixed payment notices by the insertion of a new section 31C. Subsections (1) and (2) provide for a fixed payment notice to be served on persons in respect of an alleged offence. The person may opt to pay a fixed fine within 28 days rather than face prosecution in court. If there is a decision made not to give a fixed payment notice, that does not prevent the initiation of prosecution.

Section 5 of the Bill relates to the private dwelling provision I discussed earlier. As I said, the Minister for Health can designate a provision in a regulation to be a penal provision and a dwelling event provision. If that happens, this section of the Bill comes into play. It provides for additional powers for the Garda. Under subsection (1), where a garda suspects that a person is loitering with intent to attend an event in a private dwelling in contravention of a private dwelling provision, the garda may direct that person to leave the vicinity. Under subsection (2), where a garda suspects that an event in contravention of a private dwelling provision is under way, the garda may direct the occupier of the private dwelling to require and cause the other persons to leave. Subsections (3)(a) and (3)(b) permit the garda to attend at the entrance to the dwelling and request contact details for the occupier.

Section 5(4) provides that it is an offence without reasonable excuse to fail to comply with a direction given by a garda under the section. Section 5(5) sets out the penalties to apply.

Those are the details of the Bill. This Bill is all about enforcement but as my colleague, the Minister for Justice, Deputy McEntee, has emphasised, the Garda Síochána will continue to engage, educate and encourage. Only as a last resort will they enforce.

I am conscious that there is an element of public trust at issue here. People in Ireland are looking to the Government to lead and act appropriately, proportionately and fairly. Should the Bill be passed, it will not simply be a question of making a regulation and then handing out fixed penalty notices. The regulations will be considered carefully and drafted appropriately. I ask Deputies to remember that the overwhelming objective is to enhance compliance with public health guidance and regulations. Penalties are only one part of that and, as I said, will only be applied as a last resort. Any system of enforcement only works if people can see that it is being used appropriately, that the sanctions are proportionate and that it is aimed at the greater good. I commend the Bill to the House.

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