Michael McNamara (Clare, Independent) | Oireachtas source

I will speak to the Bill as it would be if these amendments were introduced. I have no problem with quarantining per sebut I think everybody agrees and all of the scientific advice indicates that if quarantine is to be introduced, it must done properly or it will be utterly ineffective. It will be almost arbitrary, if not discriminatory, if it is not introduced properly. There is no point in quarantining people from a particular country if they enter the State at one entry point but not doing so if they use a different entry point. How does that make sense?

It is my understanding that we are proposing to quarantine people from certain countries because there are variants of the virus in those countries which are considered to be particularly dangerous. Alternatively, we can take the view that we will stop all Covid cases entering the country. If the purpose is to stop all Covid cases, what is the difference between a Covid case acquired on a beach in Bundoran, Benidorm or anywhere else in the European Union because there is freedom of movement, in theory? Obviously that freedom can be restricted on public health grounds but any restrictions must be proportionate, necessary and non-discriminatory. Are we trying to stop every and any Covid case coming in as a way to avoid dealing with the fact that we have community transmission here that is very far from under control? In fact, most medics agree that Covid-19 is endemic in our population, as it is in the populations of most states in the world at this stage. Covid-19 is endemic so I do not think we will suddenly get to zero here. In that context, what is the difference between a Covid case acquired here or elsewhere?

My understanding is that the medical priority is to stop variants coming in, particularly variants that people who have been vaccinated might not be immunised against or people who previously had the virus might not have a natural immunity to. I note that the Minister is nodding at that. That is an important priority but I do not see how it will be achieved by stopping people entering at some entry points but not at others or by only stopping people from certain countries. Even if those variants are currently only prevalent in some countries, that will change over time and the Minister has the right to designate other countries. At the moment, there is much talk about particular countries like Brazil but just because people are not coming from Brazil does not mean that they have not spent the last 48 hours in the company of somebody from Brazil, albeit in another country and they could be carrying the variant. We either quarantine fully or it is ineffective. There is a general acceptance of that point by medics. I note that Deputy Boyd Barrett has also said that and I agree with him.

I do not think it is feasible or legitimate to quarantine at ports if we are not quarantining at all entry points to the State, including right along the border with Northern Ireland. Unfortunately, I do not think we have the where-with-all right now to quarantine everybody entering this State. I simply do not think we have that capability but at the very least, everybody should be tested. At least then if variants are entering the country, we can keep track of that. We can have a public health system which can chase that. I know that involves our public health system chasing a problem rather than preventing one, but I am not convinced, given the number of people who cross the Irish Border every day, that everybody can be quarantined. If we are going to go down the road of quarantining, it must be done properly.

I wish to speak on a couple of other related issues. The onus of proving or demonstrating what is a reasonable excuse to leave one's home was not necessarily on the prosecutor but because it was a criminal prosecution, all elements would have to be proved by the prosecution. Now the onus is on the defendant, who has to show what is reasonable. There is a much bigger problem with that, however, in terms of deciding what is reasonable. Laws, to be enforceable, must be predictable. One has to be able to look at the law and with the assistance of legal advice, if necessary, understand what is prohibited and what is allowed. It is impossible to say or give legal advice on what is "reasonable" behaviour. I will give an example to illustrate my point. There is a general right to protest in the Irish Constitution but of course, that can be restricted by laws relating to public danger or public nuisance. Is it restricted by this legislation? It is not at all clear. There is a right to protest under the European Convention on Human Rights but again, that can be restricted on the basis of public health, public order and the usual bases for limitations of rights but it has to be done pursuant to law. Does the law prevent people from protesting? This is an issue that has arisen in my home town. A group of people, whose reason for protesting I do not necessarily agree with, were protesting, as far as I could see, in a manner which was responsible. They were standing outside in the middle of the square in the town, separated from each other and from other people, making their point. Other people took umbrage with that so they were protesting against the protest but they were also doing so in a responsible manner. There was no great degree of congregation involved, the protesters were outdoors and were wearing masks. In any event, it is either the case that both groups are covered by the right to protest or people are not allowed to protest any more in Ireland. I do not know which is the case. I have benefitted from a legal education. Whether those who provided the education benefitted from providing it to me is another question but if I cannot see what is reasonable and what is not and if a lot of legal advisors cannot say what could be considered reasonable, then how is this law enforceable? How does it accord with the requirements of the rule of law which are that it is predictable and one can clearly see what is prohibited and what is not.

I mentioned the protest as an example. I am not in any way encouraging protest and I am certainly not encouraging protest which is in any way irresponsible or likely to contribute to the transmission of the disease. People think that they can travel up to 5 km from their home and anything else is prohibited but that, of course, is not the case. One cannot be more than 5 km from one's home for the purposes of exercise but one can travel as far as is necessary or reasonable from one's home for other purposes like a medical appointment or even shopping. Clearly if there is no shop within 5 km of one's home, it is not unreasonable to go to the nearest shop. However, if the nearest shop does not have all of the groceries that one normally eats in a week, is it reasonable to go further to the nearest larger shop?

I question how this measure can be enforced. This proposed law is very general in parts and I dare say almost impossible to enforce. There is a specific measure regarding going to an airport or port for the purpose of leaving the State and that aspect is quite clear. When travel restrictions ease, however, it will be possible to go to Belfast for the purpose of travel. People will have left the State by the time they get to Belfast, clearly, but they can go there for the purpose of leaving the island. Will that be prohibited by the State once the current restrictions are eased slightly? Is making Belfast airport the busiest airport on the island the only thing this measure is going to achieve? I wonder about that aspect. If we cannot quarantine everyone, then at least we should be able to test everybody. I have called for testing of everybody entering the State since last May and it is not unreasonable.

On the issue of testing, I have a problem with this Bill because it specifies PCR testing. It is very unusual for a Bill like this to specify a particular type of testing. For example, the type of testing for road traffic offences is never specified in the relevant legislation. It is just stated that the Garda members can have an apparatus and then details of the apparatus will be set out in secondary legislation by the Minister. I have no problem with testing. In fact, it is vital that we test. If the advice the Minister has is that PCR testing is the best type of testing to use now, then that is the advice and I would expect the Minister to follow it.

All this legislation is intended to be in force for a short time initially, but if it rolls on for much longer we cannot be certain that in six months' time, PCR testing will be recognised as the only type of testing suitable for this situation. The Minister will not then be able to change it because it will be set out in primary legislation. When this legislation goes to the Seanad, I urge the Minister to consider having a reference to "testing" set out in the Bill, or the Act when it is ultimately enacted, with the Minister having the right to specify the type of testing, which would of course be done in accordance with medical and scientific advice. The type of testing recommended will inevitably change, just as testing and treatments for any virus, disease or infection changes over time. I do not think specifying the type of testing to be used is something suitable for primary legislation. I think it will create problems for the Minister or his successors down the line. They will then have to come back to amend primary legislation, when something like this should be delegated to being dealt with in secondary legislation.

I can see Deputy Shortall encouraging me to finish, but she takes as much time, if not significantly more time dare I say it, in her contributions here as I do. I am trying to be brief, but it is important that some points were made regarding this legislation. I have made them and I thank the Leas-Cheann Comhairle for the opportunity to have done so.

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