Dáil debates

Friday, 3 December 2021

Health and Criminal Justice (Covid-19) (Amendment) (No. 2) Bill 2021: Second Stage

 

4:55 pm

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

When the country first shut down last March in an attempt the flatten the curve of infections, we knew absolutely nothing about this virus. We did not know how it was spread or how quickly it was transmitted. Everyone in this House was on board when, shortly after, we were asked to pass emergency legislation. It was a global emergency and we all understood speed was of the essence. Human rights organisations flagged the importance of balancing public health measures and the rule of law with human rights. We went ahead without the safeguards we would all have liked because we knew there was not the time to put them in place. That was 22 months ago, yet we are still operating on the narrative that there is no time for a review of the legislation and no time for oversight, proportionality tests or human rights assessments.

I mean in now way to diminish the current seriousness of the pandemic but we are not operating in the same conditions as we were when we were originally asked to enact the predecessor of this legislation. This Bill, which follows the series of Bills that went before it, will again extend the sunset clause set out last year, which was some comfort, with no changes to the content. Time and again, we were promised reviews and that the latest extension would be the last. We are now being asked to trust the Minister again in extending the provisions for another three months, with a possible additional three months after that. Many of the measures in the Bill are necessary. The requirements on wearing masks are a very important aspect of the public health measures and I accept that their enforcement is needed for the adult population. However, can we really guarantee that every single measure in the Bill and every single regulation that was passed or signed is needed? I understand that in excess of 90 regulations have been signed, which has resulted in the Policing Authority expressing concerns about navigating them. We cannot guarantee they are all necessary, nor can the Minister, because there have been no reviews of the emergency legislation or measures.

There are internationally recognised standards and frameworks for emergency laws and they exist for a reason. Such laws, by their very nature, bypass scrutiny. In this case, we are, in effect, dealing with rollover legislation. Human rights organisations in the State have been asking from the outset that the Government adopt a human rights law framework for public health measures. It is on this basis that I have submitted a number of amendments to the Bill requiring that the regulations receive approval by both Houses of the Oireachtas and that the State's human rights watchdog, the Irish Human Rights and Equality Commission, IHREC, be consulted on any measures that will impact on human rights. I am not talking about things taking forever, but consultation is necessary. A human rights law framework recognises that, in certain circumstances, limits may be put on individual rights, as when we needed last year to protect the rights of life and health that were most pressing, including for the people working in our hospitals, supermarkets and so on. However, such limits must be evidence-based, proportionate and temporary. We need to consider those conditions. We must have a careful analysis of the Covid legislation and regulations to date and more oversight over any future legislation.

None of the current legislation we have seen this week has been through pre-legislative scrutiny. No outside bodies were consulted and the legislation itself was published at the last minute, giving the Opposition very little time to analyse the legislation and the regulations properly. In fact, we had to have our amendments in yesterday, before the debate started and before we had heard the Minister’s opening statement today. I ask the Minister to consider the amendments tabled to this Bill. There is a sense of dismissiveness where Opposition amendments are treated as just something we have got to go through, and the Government will get the approval because it has the numbers in the Dáil. That is not the way to deal with this. It was not the way it was dealt with at the beginning of the pandemic.

Ensuring interference with rights is proportionate requires a careful balance of numerous factors, such as scientific evidence, analysis of the nature of the threat to the public health, careful analysis of what measures are needed to respond appropriately to that threat, what impact these measures will have on rights, how to keep interference with rights to a minimum, and how best to protect the most at risk and to prevent discrimination.

There have been terrible mixed messages. Good advice came from an expert group on environmental science about the use antigen testing. However, it seems a hierarchy of expertise is being listened to. Some of that is about the practical measures. There is a public sector duty in this country to promote equality, eliminate discrimination and protect the human rights of Members, staff and the persons to whom they provide services. This applies to all public sector actors, including the HSE, the Department of Health, the Chief Medical Officer and NPHET. For that reason, I have submitted amendments to add a general non-discrimination clause to the list of things the Minister must consider when drafting amendments. We are elected to legislate to ensure the laws passed in this country are considered and appropriate. Likewise, the Irish Human Rights and Equality Commission, IHREC, was formed by the State as its human rights watchdog. It is explicitly mandated to keep under review the adequacy and effectiveness of the law and practice in the State relating to human rights and equality. I simply ask that it and we be allowed to do our jobs. Further scrutiny of regulations by the Oireachtas and by the Irish Human Rights and Equality Commission would help prevent the unintended consequences we have already seen from the regulations, such as the rise in domestic violence, the isolation of older people in nursing homes and who are cocooning, the isolation of single people, the unsafe conditions for people in crowded and substandard accommodation like, for example, direct provision, and gardaí not being clear on - although this was much more at the beginning - what was guidance and what was law. I saw some of that myself.

A fundamental principle of a law is that it must be clear, precise and accessible. Everyone in this country needs to know what is legal, and what is not legal but guidance. In fact, the public is good at taking guidance. We have seen that in recent weeks, where they restricted their movements in droves, so much so that it has caused a knock-on consequence for several sectors, including the hospitality sector, events, taxi drivers, hairdressers and everyone else.

Throughout the last 22 months, it has been difficult for ourselves as legislators, for An Garda Síochána and for the public to differentiate between what is required of us legally, what is being recommended to us through guidelines, and what is just the personal opinion of individual Members, Ministers or of NPHET. We were told at one point that HIQA would do a review on children and mask wearing. We were waiting for that review and I do not believe HIQA did it. However, there was an announcement late in the day at 9 o'clock at night when circulars were sent to schools with regulations to be implemented and mandated the following morning at 9 o'clock. I am sure the Minister is getting the same calls as I am from people who are upset. I have no doubt there is a high level of virus circulating among primary school pupils. However, we continuously heard from NPHET that schools were safe. That is what most people heard. It was qualified by Dr. Ronan Glynn, who said, “we said that they were safer”. That is not how people heard it.

The Minister now has to explain to children, primary school pupils and their parents why there is a value in mask wearing, what it sets out to achieve, the time limit on its implementation and which people can be excluded from wearing masks. On the points that were made earlier, people are certainly telling me that the GPs are not providing letters. People are upset. Yesterday, I was contacted by a parent whose child has autism. They went to the GP to be sure there would not be an issue. This has been a lightning rod for people because they have not had time to think it out nor have they had the rationale explained to them so that they can in turn explain that rationale to their children as well as being able to accept it themselves. Some people have serious problems with this. I am not sure if it is a majority of people, but there are certainly people who have serious problems with this. A communication piece is hugely missing.

There is no doubt it is a different experience for a child who is looking at a teacher who is talking from behind a mask. It is a different experience for children to talk to each other while wearing masks. This sends a message that they may have reason to feel a little more unsafe by virtue of the fact this protection is required.

The Minister set out this message, but he ignored the advice from environmental health about HEPA air filtration systems in schools. I am hearing from teachers who are saying they have a problem getting substitute teachers. Many teachers are out with colds and flu because windows and doors in schools have to be open. If the doors are not open then the CO2 monitor will show the air has reached an unsafe level. They are wearing three coats, they have blue hands, and they are like that for five or six hours a day. I am probably exaggerating about the three coats, but the children are cold. They are sitting in a classroom that is at 10°C. You would not ask somebody to work in that kind of an environment. There has to be a rethink about situations in many of our schools and classes where there are a good number of pupils. Most primary school class sizes in my area, and I am sure in the Minister’s area too, are somewhere around 30 pupils. That is a lot of people in a classroom. It is difficult to achieve good air quality. There is a part-solution here that would be enormously helpful. Somebody has got to go back to the drawing board fairly quickly, look at this and start taking the advice of people who are the environmental scientists. They need to look at and listen to the evidence from those people, rather than from those who are not experts in environmental science.

On boosters, I was one of the fortunate people who was in the cohort the Minister talked about. I was in Citywest last Friday. I was in a good humour to queue for a long time. I was happy to be there and happy to get the booster. However, people were there who were frozen cold because they did not know that they were going to be standing outside for two hours and then another hour and a half inside. It was worse the next day. I felt sorry for the people inside, because there were not enough people administering the vaccinations. That is where the logjam was. Some of it was a timetabling thing. It could have been timetabled better.

We have to throw everything at this in terms of the number of vaccinations.

It is not fair on the people on the front line. Some of them are getting complaints but the complaints are going to the wrong people. We should be saluting these people. It was not the same scenario in the vaccination centre for the booster as it was for my first and second doses. It felt a lot more chaotic as regards the length of time I was there. Whoever can be put in to assist should be. The pharmacies can be a great solution there. The boosters are going to be very important and we all acknowledge that. The Janssen vaccine wanes fairly quickly and a large cohort of young people, who will be out and about, got that. There will have to be a serious look at the duration between when they got it and when they will get the booster, or the second dose or whatever you want to call it. I am not put out by what people call it.

Those practical measures are the things we need to see and we need to see them at speed. We have gone from accepting that this is a pandemic to a point where we have to accept that this is endemic. The CEO of Pfizer said he anticipates that an annual vaccine will be required but we have to put other measures in place so we can live as normally as possible. We have to stop going from wave to wave and we must have an armoury of things that can be used. The likes of air filtration systems are part of that because the last thing any of us want is our schools closing. We have to keep them open but we have to keep them open safely. That includes teachers and pupils. There is a finite number of teachers and we have to keep them as healthy as possible. I was surprised that they were not included in the antigen testing regime. We have to accept that our climate does not allow for a lot of outdoor activity in the winter, although it is fine in the summer or when the weather is okay.

Regarding this emergency legislation, we have to get back to people being briefed. People are ringing me up and asking if there is going to be another lockdown and so on and asking what I can tell them, but we are relying on the media. It is not good enough that we would not have a briefing to break down what the issues are. We cannot be advocates for some of these measures because we simply do not have the information. We cannot have an input and we are excluded from regular briefings. Then things come like a bolt out of the blue, like this legislation, without the kinds of safeguards we require. We are 22 months on. How do we not have time to consult with the very people who will be the watchdogs, at the time we need them, that is, when there is emergency legislation? The idea of excluding the State's watchdog on human rights, namely, the Irish Human Rights and Equality Commission, from this kind of legislation is just not acceptable.

I hope the Minister will look at the amendments we have tabled. They have been put down in good faith and we would like them to be taken in good faith. I appeal to the Minister to do something about the communication on mask-wearing in schools. He also needs to go back to the drawing board on ventilation in classrooms. Children cannot go through the winter with all the windows open, particularly when there is another avenue that could go some way towards assisting good quality air in classrooms and perhaps keeping the level of the virus down in the primary school cohort. It is going to be some time before they are offered a vaccine and there may well be a different attitude when it comes to that. There will need to be some serious reassurance of parents because adults will take a vaccine themselves but will be more thoughtful about their children, so we need more advanced warning and thought on that.

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