Thursday, 3 September 2020
Criminal Justice (Enforcement Powers) (Covid-19) Bill 2020: Committee Stage
I move amendment No. 1:
In page 5, to delete line 14.
The amendment pertains to section 3 of the Bill, which provides entry and inspection of relevant premises by members of An Garda Síochána. Section 3 states:
3. (1) Any member, whether in uniform or not, may enter without a warrant any relevant premises at any time and there make such inspection, examination, observation and enquiry as he or she may think proper for- (a) the purposes of giving a direction under section 31A(7) of the Act of 1947, whether in relation to a relevant provision or otherwise...
My amendment seeks to delete that final half-sentence which is line 14, namely, “whether in relation to a relevant provision or otherwise”. The interpretation section, under section 1 of the Bill, defines a “direction” given by a member of An Garda Síochána as “a direction given under section 31A(7) of the Act of 1947 in relation to a relevant provision”. Therefore, under the direction section of this Bill, a member of An Garda Síochána can legitimately enter a premises for the purposes of giving direction in regard to a relevant provision of this Bill. Section 3(1)(a) expands that so they can enter the premises for the purposes of giving a direction not only under the provisions of this legislation, but also “or otherwise”, whatever “or otherwise” might mean.
It seems that is in conflict with the definitions section we have already agreed. It would be the norm in legislation that the legislation acts as a coherent entity and that we do not normally provide for extraneous powers in legislation. My question to the Minister is this. What is the “or otherwise” provision? I believe the House would be much safer in determining that a Garda member, whether in uniform or not, may enter without a warrant any relevant premises for the purposes of giving a direction under this Bill. These are the issues we have talked about and debated, namely, to give gardaí the power to enter a premises, and, therefore, to give a direction for any other matter outside the scope of this Bill seems contradictory to the norms of legislation, in my view. It might be that the Minister feels there are other Covid provisions in other legislation, and that when gardaí are there and see something happen, then they might as well give a direction under that as well. I do not think that is a good way to proceed. We need to clarify that what we are giving here is the power for members of An Garda Síochána, without warrant, to enter premises to do inspections. We need to ensure that the provisions we are providing for in this legislation are met, and where they are not met, there is the capacity to give a direction to the proprietor of such a premises to comply with the legislation.
It is often the case the drafters slot in words like “or otherwise”, giving a much broader scope than this House would intend to legislation. I propose, therefore, that we would delete the half-sentence that includes “or otherwise” which is encompassed by line 14, page 5, of the Bill.
I support Deputy Howlin's amendment. As I said when I called the vote last night and by having the vote, this Bill is rushed and there has been no pre-legislative scrutiny. As I also said last night, we have supported every piece of legislation from day one, when this first broke around St. Patrick's Day, blindly, I would say, and in a rush, but in good faith. The public and the publicans have shut their doors and everyone who was asked to do anything has done it - the vast majority, with maybe a tiny percentage of people who did not. However, fatigue, tiredness and weariness are growing. The mixed messages from the Government and Departments, and the changing of the guard of Ministers and the Taoiseach - the whole lot - has caused huge slippage.
I thank the Ceann Comhairle for his words yesterday in regard to the issue in Clifden. The Taoiseach recalled the Dáil to appoint a new Minister and to deal with this legislation, but the main thrust of what we are doing is to rush this legislation through. I believe this legislation is draconian and unprecedented, and, of course, it is obviously unprecedented because we have an unprecedented crisis. However, there is an issue in regard to the two words “or otherwise” in this section because they could mean anything. If anyone thinks it is funny, it is not very funny for a publican who has to get his or her licence once a year in public court and run his or her business professionally, as the vast majority do. Some 130 have been cautioned during the Covid crisis so far but they have not even been charged with anything, so far as I know. It is a sledgehammer to crack a chestnut. It is overbearing and overreaching to have these powers to go into premises. The words “or otherwise” could include a publican’s home or someone else's home, and I am not satisfied that is not included in this either. The term “or otherwise” has no business in legislation because it is too loose. I could say, “I caught a salmon, or otherwise I caught a trout”. This kind of dúirt bean liom go ndúirt bean léi is doublethink.
Deputy Howlin mentioned that it could be the drafters; I do not know if that is the case and I am not blaming the drafters. However, it is very serious. There needs to be much more clarity, given this is draconian legislation. We cannot have loose terms like “or otherwise”, which could mean anything - it could mean “or otherwise we could all be at home today”, or even “or otherwise the sky could fall”. It is not acceptable.
I support Deputy Howlin’s amendment. The Government plan is to rush new Covid-19 enforcement laws and powers through the Dáil, and it is nothing short of draconian. There are two aims to the Bill: to provide additional enforcement powers to An Garda Síochána to shut down bars and restaurants; and to give gardaí the powers to go into every house in the country. What in the name of God are we doing? We in the Dáil have supported different legislation since March and I have supported it, but enough is enough. People are absolutely burned out and in most cases - I am talking about 99% of cases - they are completely compliant. Those few bars that are open now are being finger-pointed as another cause for this virus. The only time the pubs in most parts of west Cork have opened in the last six months is to let floodwater and muck fly out their doors because their doors are shut and they are being flooded from all angles. There are already inspections in place for thousands of bars and restaurants, and most of them are compliant. There are always a few rule breakers in every walk of society, but these laws are draconian. Every other European country has opened its pubs but it seems we are the most stringent country when it comes to reopening.
What this means is that many pubs will no longer be able to take the hit and will have to remain closed. At the end of September, the moratorium for mortgages is up, which is another hit. There is no so-called package for publicans to repay their mortgages, so what is going to happen? The Government is giving the banks the powers to foreclose on the pubs and it is now giving gardaí stronger and more stringent powers that they do not need. They are probably finding it difficult enough to enforce the rules and regulations that are there.
If these powers are given to the Government or a Minister we will enter a new society of surveillance, becoming known around the world as a police state. There have been many house parties. There is no doubt about that. There have been more of them than we would like and there have been many street parties throughout the summer but the reason for this is the Government decision to not reopen the pubs and allow people an opportunity to have a drink in a controlled environment in full compliance with the guidance. I will not support the passage of this legislation.
There have been many regulations and rules that have taken powers away from the people, including the statutory instrument signed two weeks ago by the Taoiseach which implemented penalty points in the fishing industry. In the name of God, what are we doing? We are taking the powers away from the hardworking people of this country. That is a different issue. I respect that the issue needs to be dealt with very strongly but serious questions need to be asked of our Taoiseach and Fianna Fáil in regard to the introduction of measures that could lead to the destruction of the fishing industry in this country. The Government's introduction of far-reaching, intrusive measures under the veil of Covid-19 is nothing short of an invasion of the family and individuals and the protection afforded to everyone in their homes. In the worst days of the Soviet Union never were such intrusions in the private homes explored.
I am opposed to this Bill and the Government's proposals regarding what can happen in homes, public houses and restaurants throughout this country.
I too support Deputy Howlin. With regard to this Criminal Justice (Enforcement Powers) (Covid-19) Bill 2020, Second Stage of which was just voted on and passed, the late Jackie Healy-Rae always said that everybody was responsible for his or her own actions, the manner in which he or she votes and how he or she chooses to do his or her business. What has happened here today sends out a wrong and hurtful message to publicans in Ireland. Before the majority of our pubs are to be given the opportunity to open their doors we are setting out in this Bill what can be done to close them down.
Earlier this week on a Radio 1 programme Antoinette Cunningham, General Secretary of the Association of Garda Sergeants in Ireland, stated that unrealistic expectations are placed on members of An Garda Síochána by public commentary from Government and legislators who say these laws can be introduced but never give any thought to the final piece of it, which is how measures are to be practically enforced. In regard to greater enforcement around the restrictions in pubs, Ms Cunningham called on the Government to consider any new laws carefully. She made the point that as we do not live in a climate where it is practical to dine outside in winter time this will move people indoors and create difficulties in relation to social distancing as there will be bigger crowds inside pubs. She also said that the Government should examine the legislation it is introducing to see if it is enforceable and practicable and will serve society well and, if not, it should consider reviewing it. They are very sensible words from a sensible person who is dealing at the coalface with what it will mean to implement what the legislators are now putting forward and will become law.
I have a question for the Minister. The Government in its infinite wisdom is giving additional powers to the Garda and throwing this burden of work upon it. Does it propose to give the Garda additional resources? I presume and assume that the answer to that question is "No". When our sergeants, inspectors and chief superintendents are allocating the work of An Garda Síochána from where are they to take resources in order that gardaí can be deployed to the enforcement of this legislation? This is a retrograde step. I have often heard the leader of the Rural Independent Group, Deputy Mattie McGrath, say that rushed legislation and rushed law-making is bad law-making and he was always correct in saying it. He has said that over many years. I believe it to be true. This legislation is being rushed through and legislation is wrong when it is rushed. We are where we are. What does the Government propose to do in respect of An Garda Síochána? Is it to be given additional funding and will additional gardaí be recruited? Will the Garda be given additional resources to hurt the very people we should be helping?
I understand a group of four or six publicans from Monaghan and other parts of the country are in Merrion Square today to protest and take a stand on behalf of publicans. I note Deputy Mattie McGrath said that publicans would also be coming here from Tipperary. Publicans in Kerry are outraged. Late into last night and early this morning I received telephone calls from publicans in Kerry who are dismayed. Publicans in Currans, Cahersiveen and in every area in between are upset that legislators are debating measures to close them down before they are even allowed to reopen. It does not make sense. It is not logical. I thank the Ceann Comhairle for the opportunity to put those comments on the record.
I agree with some of the points made in regard to the priority being given to this legislation and what that says about the priority for a sector that is closed and in respect of which damage has already been done. I made that point on Second Stage. The public messaging has changed from legislators appealing to people's best nature to a more punitive approach. That needs to be reflected on because it can be counterproductive and, I think, will be.
On Second Stage I also highlighted that I believe this is a very flawed process. The merit of this legislation is that if it permits pubs to open and provides the means to deal with people who are not adhering to public health guidelines it allows those who will and are adhering to public health guidelines to open and do business. However, there is no certainty in terms of a date on when it is proposed to permit pubs to reopen. The Social Democrats supported Second Stage of this legislation despite misgivings about the process and the lack of a regulatory impact assessment. We will be supporting this amendment. We need to consider what will happen if this matter ends up in the courts. If that happens, the judge adjudicating on it will have to consider the definition and how this particular aspect compares to the definition. The conflict that has been highlighted by Deputy Howlin will be the net point. This matter could be resolved by the Government accepting this amendment. If the amendment is not accepted, the Minister will have to offer a coherent reason for that decision. As I said, if it ends up in the courts the legislation may be deemed to be flawed and, as pointed out, that will copperfasten the deficiency in the process.
Some of the interpretation of this legislation is very unfair to those who drafted it. I listened to Deputies Michael Collins, Michael Healy-Rae and Mattie McGrath. In my view, this is a framework under which we can start to open pubs and lift some of the restrictions that have been very difficult to manage. Deputy Michael Collins portrayed the legislation as a means to ensure that the pubs remain closed. It is quite the opposite. If we want to see the opening of premises that have been closed we need to see the development of compliance protocols that will be applied by publicans and in other sectors that have difficulty opening.
In an ideal world, these would be developed by voluntary associations like licensed vintners' or sporting organisations, which would set out how they believe they can protect people who come to their events or venues. However, voluntary organisations cannot take the responsibility for society of ensuring their members are compliant. They need to know that at the end of the day there will be powers to enforce these provisions beyond the voluntary agreement of members of associations and the goodwill that is out there. Many publicans want and are willing to bring in provisions that will make their customers safe. Many GAA clubs want to bring in provisions even beyond what happens in the stadium itself, as to how people coming to their events can be safe. We need to recognise that as we move to open more things, each of us who is availing of those opportunities has to be doubly vigilant and careful to honour the protections that are there elsewhere. The purpose of the legislation is to provide a framework within which organisations can develop safe protocols to open the things that remain closed. That is the direction we now need to travel. We need this legislation to be in place so that people who are going to operate in goodwill and take their responsibilities seriously, and who seek to do this in a proper way, are not undermined by those who decide not to take those responsibilities seriously or to be deliberately non-compliant.
It is most unworthy of Deputy Michael Healy-Rae to suggest that providing the Garda with more resources is to hurt people. That is not a fair interpretation of the way in which the Garda has used the powers that have been given to it by this House. The Garda is to be commended for the proportionate way it has used powers that have been given to it. There is no sense that the Garda is coming in with heavy-handed approaches to take enforcement measures without giving people fair warning or the opportunity to mend their ways. The Garda has been exemplary in the use of these powers but it does need them at the end of the day. With the best will in the world there will be people who are unwilling to be compliant or to take good advice that is afforded to them.
Of course the cry is that this is rushed. We are in the midst of a pandemic and we are trying to manage a virus without knowing its full implications. We have to move swiftly to put in place protections but these are temporary protections, not measures to take unwarranted enforcement action against people. These are to be a long stop to ensure we can move together as a community to address this, confident in the knowledge that people who thumb their nose at society's expectations will be brought to book eventually. That is the context in which we should view these measures.
The Minister is to be commended for bringing this Bill forward quickly and allowing us the opportunity to debate it here. We should of course review the operation of the provisions. This is not set for all time. If we find in the course of operation that we need to modify some of these elements, by all means we should do so. One of the features of this particular Dáil is that we are dealing swiftly with enormous issues of huge import. We have been able as a Dáil to change our mind and see things in a fresh view. I am looking forward to the new roadmap for the next phase of managing to live with the coronavirus. That is really important. This legislation is an important part of the development of that roadmap.
Honestly, only that I can see the Ceann Comhairle and other Deputies around the place I would have thought that I was in Russia or some other dictatorship with what is going on here and what is being proposed in this Bill. I say to Deputy Bruton that he is a wizard. After six months or more with rural pubs being closed, now he is suggesting that it is the publicans who should bring forward the rules and ideas so they can open their pubs. At the same time, he is backing legislation here to penalise pubs whenever they do open. This is what we are doing. It is absolutely ridiculous. We are shoving this down the throats of people in rural Ireland. At the same time, day by day, it seems to me that 50% of the cases of coronavirus are emanating from Dublin or the greater Dublin area. Two thirds of the pubs are open here in Dublin. Two thirds of them are still closed down in Kerry and along the west coast. These people have done nothing wrong.
We are suggesting that uniformed or plain-clothes gardaí can enter a premises. It does not say whether it is a private house out in the country where people are terrified. What the Government is suggesting is that when a knock comes at the door and someone says they are a member of the Garda, and the people peep around the corner and see a fellow in plain clothes, they are supposed to let him in as the Garda has powers to come in now. When they let him in, they could find themselves corralled into a corner and the few pennies they have, wherever they are, taken from them under threat. This is opening the door for robbery and mayhem in rural Ireland. We do not even have the rules for the penalties being proposed. We do not actually know what the penalties are either but we want to give powers to the Garda.
The Garda is under pressure. Deputy Michael Healy-Rae has asked where the extra funding is going to come from. We do not have funding at present to pay for a few minutes more of extra home help for people who want to stay in their houses for the remainder of their days on this earth after serving their country, families and communities well. We cannot provide a few extra minutes. We cannot pay the farmers who have built buildings to regulation. They have got planning permission and dealt with 14 or 18 serious rules so that they can build buildings to prevent pollution and adhere to good practice on their farms. How many of these people have been paid the grants due to them since 2019 or 2020? We are becoming like the dictatorships in Russia and other places around the world.
I heard Deputy Michael Collins raising a matter I have been made aware of as well. Fishermen are going to get penalty points for breaches of regulations without recourse to any judge or law. It is only just someone coming on board their fishing boat and giving them penalty points. They have no right or recourse to challenge these penalty points anywhere only take them and reduce the value of their asset. That is a long story but it is what is going on in this country now.
I will return to the idea that publicans must now at this stage come forward and give ideas to the Government as to how they may be allowed to open their pubs.
It is absolutely scandalous and shameless from a long-standing Member like Deputy Bruton that he would make such a suggestion at this stage. It is sticking publicans' noses further into the ground after they have been closed for six months. Does the Deputy know many publicans cannot pay college fees for family members or loans they have taken out? They are facing an end to the mortgage moratorium later this month. They do not know what way they will turn and we are legislating to bring them down further.
What is going on here is absolutely ridiculous. I support Deputy Howlin's amendment. It is what we should do because the private home of an ordinary person is his or her castle and it should remain so. We must not give uninformed but uniformed people the right to knock on the door and seek to enter. That is totally wrong and I will not accept it at all.
I will be brief and speak to the amendment before us. I support the amendment tabled by Deputy Howlin and compliment him on identifying this weakness in the legislation.
This is very draconian legislation. As the Minister knows, yesterday I said that we as members of the Regional Group will support this legislation as we did earlier in the vote. This drafting error highlighted by Deputy Howlin must be removed from the legislation. I hope the Government can give due consideration to the argument that has been made by Deputy Howlin so we can ensure this half a sentence can be removed from the Bill.
I also commend Deputy Howlin on bringing this amendment to the House and the language should be taken out of the Bill. I have listened to the debate involving many Deputies in the House today who have made great contributions. I also listened to Deputy Bruton, who could sum it all up in two or three minutes by telling us what he thinks will happen.
We must have a reality check for everybody who has voted for the legislation as it is. I hope the country is watching and looking at the people who voted, by 110 votes to ten, to carry the legislation through Second Stage as it is. I commend the likes of Deputy Howlin, the rural Independents, and all the others who came here to amend the legislation to ensure it is correct and proper. We are rushing through legislation to allow more powers for gardaí, but currently the same gardaí are telling us they cannot do their job properly because they spend most of their day sitting down trying to do paperwork. If there is to be legislation giving extra powers to gardaí, we must provide extra resources.
This Government has closed rural Ireland while leaving large cities and towns open. It has demonstrated no respect for rural Ireland or any of its businesses. This is not just about the pubs. We all speak about social distancing of 2 m here and 2 m there, which is fine, and bus capacity has been reduced to 50%. People have been put into school with 2 m of social distance where possible, although otherwise people may sit 1 m away. People need to keep 2 m away on a bus. Much legislation should be passed but instead the Government is rushing through this legislation.
We should make people responsible for the flooding that happened in the past couple of weeks because of the negligence of the Office of Public Works and county councils. They were negligent by not putting in the proper resources to dredge or drain rivers, clear gullies and provide natural maintenance. This is what the emergency legislation should be about. The House should unanimously support such action. Instead, everybody in the House, except rural Independents and others, is voting to pass this legislation. We are saying this is not right.
Rural pubs have been closed and people from rural communities have been sent into cities and large towns, which are overpopulated areas, if they want a sociable drink. That drink may be alcoholic, a mineral or even a cup of tea. The Government is forcing people into these overpopulated areas. All it can come up with is extra legislation for the Garda, which is currently under-resourced. The Government wanted to include a provision for gardaí to enter premises to stop the potential spread of Covid-19 or for other reasons. Get it right if emergency legislation is to be introduced.
Yesterday we had six hours to debate this Bill. The legislation was published on the Friday night, but on our first day of this Dáil session, the Government wanted to rush through this legislation. It seems the Government wants to rush through everything now, including a provision to allow gardaí to enter houses. The Government had to row back on that because of the rush. By voting for the legislation as it is, Members are giving power to the Minister to make regulations by himself or herself without coming to the Oireachtas or debating such matters. That is wrong.
Legislation to be put in place should be debated properly and given adequate time for such debate. Everything the Government is doing is to rush legislation. It is an absolute disgrace that something like this is being rushed when our schoolchildren cannot even get to school on a bus because the Government will not give proper funding. People are entitled to get on a bus, but in rural areas larger buses are not allowed because roads are not wide enough. This is because we must protect the birds before we protect our people.
The Government must wake up. Legislation must be brought forward for more important issues, including getting our people to school. Legislation must be adequate before coming before the House. The Government should not give all the power to one person who can make regulations, as we will see when this Bill goes through. It will be possible for a Minister to make a regulation so gardaí can enter a house. This is what we are here for today. We are seeking to protect people by getting legislation right. The Government should take its time, get it right and listen to people who are trying to ensure these amendments are correct and proper.
In general I would be slow to agree to any additional legislation unless it is absolutely necessary and I am glad a sunset clause has been introduced in this Bill so that, in nine or ten weeks, the provisions will lapse.
It seems that publicans are being singled out nationally and there is not the same rush in the media and with legislators to identify the real outbreaks over the past four or five weeks, which have been in the meat factories. The new regulations and legislation seem to have identified sporting events as an issue, despite them causing a very low rate of transmission in my county. I call on the National Public Health Emergency Team, NPHET, to show the evidence indicating transmission arising from sporting events.
As a number of previous contributors have noted, we need additional resources before additional legislation. In the 12 months to the beginning of the Covid-19 pandemic, there was a serious problem with Garda resources in Killarney, particularly on a Saturday night. I call on the Minister to make available more resources in this regard.
Legislation will be introduced relating to publicans. There are one or two rogue publicans who have not complied with planning legislation and have operated in parts of their premises that are not even licensed.
These regulations have not been enforced. I would be surprised if this legislation is.
I can see the need for regulations. Many publicans I have spoken to have said they will go along with them for the nine-week period if it will enable them to open their premises as quickly as possible. However, I worry that enforcement will not happen in rural areas. There is already licensing and planning legislation in place. It has not been complied with, and I wonder if this will be.
I wish to voice my support for the amendment proposed by Deputy Howlin. At this stage we have to ask whether this is really about the risk posed by pubs and bars or moral opprobrium and our disapproval of certain behaviour. It increasingly seems to be about the latter. Along with the entire House I voted to give draconian powers to the Minister for Health in March. I do not regret doing that in any way, but I will not vote to increase those powers at the end of November. I see no evidence to support their necessity from the end of November. This legislation is based on the assumption that those powers will roll over and a new normal will be somehow necessary. I do not accept that because I do not accept that Covid-19 is the first serious virus this State has faced. I am not a Covid-19 denier, not for one minute. I accept that this is a very serious virus, with very serious repercussions for people who contract it. It has particularly serious repercussions for certain groups of people, who should not be differentiated from everybody else in any way. At the same time, I also accept the necessity for society to breathe and for people to live and to make informed decisions.
At the beginning of the AIDS epidemic in the United States, when AIDS was seen as a disease of gay men, public health doctors advised gay men to avoid sexual contact with each other. They did not do that. I recently read a very interesting study by a Harvard professor who stated that the lesson from this is not to prescribe behaviour but to inform people of the risks of various types of activity and let them make an informed decision. That is what we do day in, day out in every facet of society and every facet of our lives. That is what we will have to do in this instance too. Yes, we had a lockdown when we frankly did not know what else we could do to stop our hospitals and healthcare system from being overrun. Thankfully we have increased the capacity of our healthcare system since then, though perhaps not by as much as I would have liked. We have also learned much about the virus. No public health doctor in Ireland would now countermand the direction to protect nursing homes, but that happened. I am not apportioning blame; I am just saying that we know more now than we did then.
This provision removed by this amendment includes the wording "whether in relation to a relevant provision or otherwise". Is it really about increasing Garda powers to inspect bars because we do not approve of bars? There are many people in society who do not approve of bars. None of them is forced to go into one. There are many people in society who disapprove of smoking. Nobody is forced to smoke. If we are seriously going to go down this road, let us ask whether we simply want to stop the sale of alcohol. Do we want to have a prohibition era in this country? It seems there are people who want to do that. The latest direction from the National Public Health Emergency Team, NPHET, calls for concerts to be considered, but not concerts at which alcohol is sold. It seems clear that we are against alcohol. It is fine to have a mosh pit at the front of a Megadeth concert, but God forbid that someone should have some alcohol at it. It is ridiculous and bordering on slightly irrational.
I understand why NPHET comes up with these directions. Any doctor who is put in a position where he or she calls the shots and politicians hide behind him or her will be incredibly conservative. Nobody, certainly no politician, wants to take the blame for getting it wrong. That is why we have set up this bizarre structure by which we send out a group of unelected officials to do a job for which people are elected, paid and receive a seal of office in Áras an Uachtaráin. I accept that those officials are working incredibly hard to keep us all safe. This has to end at some point.
Using Covid-19 to grant extra powers to An Garda Síochána that are not about Covid-19 is reprehensible and wrong. I support the removal of the provision enabling that from the Bill before the Dáil. I therefore support Deputy Howlin's amendment.
I am glad to have an opportunity to speak on this particular amendment. I can well understand the thinking behind Deputy Howlin's amendment. Some of us will always have reservations about such measures from a civil libertarian point of view. I know that many people in the House have such reservations. However, in the particular set of circumstances in which we find ourselves, the issue has broadened out. With no disrespect to Deputy Howlin or the Deputies who have supported the amendment, if we keep going this way I fear pubs will not be able to reopen at all. I have spoken to as many publicans as anyone else in the House, and from the very outset they have always argued that they should be allowed to open their premises subject to strict application of the regulations. They have repeated that many times, including in the last few days. I believe they are right. If the regulations cannot be strictly enforced, the case for reopening the pubs is weakened and some may never reopen. Maybe some people want to change the way we live in this way.
The other side of the coin is this. Pubs cannot reopen if it means such scenes as took place in a bar in this city, where people drank, ad-libbed and danced on the counters. A situation like that, with no regulations at all, is not in the interests of the publicans who have made a genuine case for their ability to make a living at the present time. I know there is a sunset clause which will considerably curtail the legislation. If circumstances arise which were not anticipated in the drafting of the Bill, I am sure the legislation can be changed. Unfortunately, we do not live in ordinary times. We live in very difficult ones. The virus is still around and is changing by the hour. It is still rampaging almost as it did in the beginning. We have to live with it, controlling it by curtailing our own activities. We also have to be able to live.
The best way to achieve that equilibrium is by ensuring we put in place sufficient safeguards to enable us to say that publicans are compliant. The fact is that publicans want to comply and they do not want to be told there will be no enforcement. They know that if there is no enforcement and no legal backup, they will have a very much reduced case for the reopening of their premises.
We in County Kildare have just come out of a second, extended lockdown. As I said last night in the House, it was not a great experience. There was a lot of negativity and pessimism around it and a lot of finger pointing and accusations. There have been many outbreaks of Covid throughout the country, in meat factories and elsewhere, including in various premises where an effort was being made to comply with regulations and do the best that could be done to safeguard people. The measures taken did not always work but a fair effort was made and it did curtail the onward march of the virus to a very considerable extent. It did not eliminate the virus, nor could it eliminate it.
Many speakers have referred in this debate to the reality that we have to live with this disease. The only way we could eliminate it would be to close down all the ports, airports and businesses. That did not work in a number of other places where it was attempted. References to totalitarian states are very unfair and unnecessary and they are ill becoming of the standards normally set in this House. If we want to introduce some kind of freedom to a business sector where owners make their living by providing entertainment for people in communities, we have to give them a chance to show they can do so safely. We must allow them to reopen their premises in accordance with regulations which they themselves want to see enforced in a way that will protect them and their customers in all circumstances.
To give context to this debate, I met a number of publicans in Limerick city a short time ago and their main request is that they be allowed to reopen. I must be looking at different legislation from what many other speakers are seeing. When I read section 3, I see that it makes specific reference, in subsection (1)(a), to members of the Garda entering a premises for "the purposes of giving a direction". My understanding of this provision is that gardaí will give a warning to a publican who is in breach of the regulations and request that he or she take action to comply. If that is what is needed to give certainty around being able to reopen the pubs, I am satisfied with it. One might question the allocation of extra Garda powers but they are being introduced in the context of allowing the pubs to reopen, which will be done in conjunction with the proposed roadmap. That roadmap is due to be published on 13 September and I ask the Minister to ensure it is brought forward as quickly as possible, following engagement with publicans. Many of the pubs in this country are family businesses which were handed down through generations. Many others were set up by young entrepreneurs, male and female. Those businesses are their life's work and they are genuinely and absolutely petrified that they will not be able to reopen them. I support anything that assists in allowing pubs to reopen in a safe manner and I believe this legislation will do that.
Another issue publicans raised with me is that if they are required to comply with these regulations, supports must be put in place to help them to do so. I welcome the increase in the restart grant but it may not be sufficient. Most of these premises have been closed for months. Another issue of concern to publicans is the costs they have incurred while their businesses were closed. Access to the Microfinance Ireland fund has been reopened, which is welcome, but there is a question as to whether the loans it provides will fit the particular requirements of publicans. Pub owners also have serious concerns about their ability to get insurance. There are concerns too about the ongoing uncertainty as to their future. There is a contradiction at the moment that is hard to justify whereby pubs which can serve food are able to reopen but wet pubs cannot, even though many of them, across the length and breadth of Ireland, would probably meet social distancing requirements on any week night in the normal course of events.
Several colleagues whom I respect on a personal level, including Deputies Danny Healy-Rae, Michael Healy-Rae, Michael Collins and others, have described the provisions in this Bill as draconian. In fact, they are measures to enable pubs to reopen. I want to be able to go back to publicans in Limerick city, County Limerick and north Tipperary and say to them that we are providing a roadmap that will enable their businesses to reopen. The main focus in this legislation is not about the Garda shutting pubs overnight. There will be a teething period as the provisions are implemented and it is hugely important that these new powers are exercised from the outset in a way that allows pubs to adapt. Gardaí are empowered under the legislation to work with publicans to ensure they are compliant. In many cases, publicans may not be fully aware initially that they are not in compliance with the regulations. There needs to be education around that whole area.
Above everything else, it is vitally important that publicans are given an opportunity, pretty quickly, to reopen. I see this legislation as a means to ensure that can happen. Legislation nearly always includes some draconian measures. The key elements of this Bill for me are the initial measures and the warning aspect. I want to see the roadmap for the reopening of pubs published quickly and I would like to see publicans being able to reopen very shortly. That is hugely important, both economically for publicans themselves and socially for the many people who are not able to get out at night and for whom the pub was the social outlet where they met their friends. That aspect of the issue is being missed. Reopening pubs would provide a huge benefit to communities in terms of dealing with the mental health issues some people are facing. We are talking about people's ability to get out and about and meet and converse with others. The pub is an environment that allows that to take place.
Finally, I reiterate that we must look again at the support measures being provided to publicans. In many cases, their premises have been shut for the bones of six months and they want to get back up and running. As I said, there must be supports available in the form of grants. Another speaker made reference to the moratorium on loan repayments ending this month. We need to look at that again and consider other measures for providing inexpensive loans to publicans. We must ensure they can qualify for insurance. I support this legislation, which includes a sunset clause. Some speakers have talked about it as if it is a long-term measure. In fact, it covers a nine-week period to enable us to put supports in place to ensure publicans can reopen their premises. They are entitled to be given the opportunity to reopen and this measure, among others, will assist them in that.
Three or four weeks ago, I attended a meeting at the Bush Hotel with a group of vintners. There was a large turnout, with 25 or 30 publicans from all over Sligo and Leitrim in attendance as well as three out of the four Deputies, including me, who represent the Sligo-Leitrim constituency. The main message I got that day was that publicans want to get back behind the counter and to reopen their businesses in a responsible way. They pointed out that many of them have family members who are vulnerable to Covid and they recognise the need to be careful and to comply with whatever restrictions are in place. They were really anxious that they should be allowed to do so.
They were also anxious, if that could not happen, that a proper compensation package or other measure would be put in place to ensure they could survive into the future. Apart from that, the real thing they wanted was to be able to open.
They were critical of and there was much anger about a very small number of pubs in my constituency that were open and were abusing the situation. The vintners were of the opinion that something had to be done about those pubs. Examples of such businesses were given and discussed. The vast majority of the pubs that are open and serving food are doing so in a responsible way. They have screens, PPE and hand sanitisers and they ensure people order food when they come in. They serve food on the premises in a responsible way. They write down the names of their customers and the times they have been there and do all of that properly. That is how the majority of open pubs are operating, but there is a small minority of whom all Deputies have heard who are abusing the situation. Those pubs may be full, lack social distancing and have people on the premises who are very drunk. The rules are not being adhered to in those pubs. The vintners who are watching on and cannot open their pubs are saying that something must be done about this. I accept and understand that that is what the Bill will do. That is why Sinn Féin generally supports it although, as many Deputies have stated, it is draconian legislation. It is exactly the kind of thing we should not be doing, but we are in a situation that is far removed from normal circumstances. This is abnormal legislation for abnormal times. That is the message we need to bring home clearly.
On the issue of the other pubs reopening, the real problem is that the Government messed this up a couple of months ago when it allowed some pubs to open because they serve food but other pubs were not allowed to open. Proper thought should have been put into that, even if it delayed the reopening for a week or two, in order to get it right and allow all pubs to open. That could be done if the number of customers in each pub was limited. Some people have asked how that would be policed. As a constructive suggestion, I note that every licensed premises in the country must be inspected by a fire officer who states clearly on the fire certificate the maximum number of people it is appropriate or safe to have on the premises. That is how it happens when there is no Covid. It would be very apt to bring in a regulation to specify an appropriate percentage, such as 35%, of the maximum number that could be on the premises under normal circumstances. If the fire certificate of a pub stipulates that it should have no more than 100 people in it, such a regulation could provide that it could have no more than 35 people on the premises in order to allow for social distancing. If a measure of that kind was put in place for all pubs, along with all of the other measures such as recording who comes in and at what time, their names and phone numbers and so on, ensuring the usage of PPE and social distancing and doing all of that properly, every pub in the country should be able to open.
The Garda should be able to go in and check that all the regulations are being adhered to. If somebody is acting the maggot and not doing things as they are supposed to be done, that person is endangering not just other publicans, although that is part of it, he or she is endangering his or her own community, staff and family. We need to ensure that does not happen. The way forward is to come up with a solution by virtue of which all pubs can open under strict guidelines that are strictly adhered to, with strong measures in place to ensure that is done. That is what this legislation does.
I know there are certain issues with regard to the Bill. Deputies have raised such issues, particularly the fact the inspecting Garda member need not be in uniform or the reference to "relevant premises". I point out that section 2 defines a relevant premises as a premises "where intoxicating liquor is sold or supplied for consumption on the premises - (a) under a licence, or (b) of a club". The Bill does not apply to houses but, rather, licensed premises and clubs. In those circumstances, this legislation is appropriate for the times we are in. It would be totally inappropriate for it be brought in in normal circumstances, as all Deputies are aware.
The issues have been discussed in the round in great detail. I accept that the members of NPHET are the experts in this matter. They are the medical experts who meet collectively to discuss and debate every possibility and context in which Covid is a danger to our community, people and health services. They come up with proposals regarding what can be done. Those proposals are put to the Government and the Cabinet makes decisions on them. By and large, we accept that those proposals are made in the best of faith and that most of the measures are brought in in good faith in order to protect the community. That is why we are all trying to work together to make that happen. It may be that in a month's time or two months' time NPHET may put forward another proposal in respect of pubs. There needs to be a little flexibility to allow such proposals to be implemented and, if appropriate, to allow the Garda to ensure that those regulations are adhered to properly.
Many Deputies referred to this being rushed legislation. I absolutely agree that it has been rushed and should not be brought in in this way. We should have committees up and running, but we do not have them. We should have pre-legislative scrutiny but we cannot have it if the committees are not up and running. All of that is clear. I was significantly angered by the way legislation was dealt with in the final days before the summer recess. A section was inserted into the Bill but Opposition Deputies were given no prior notice of that. How it was handled was an absolute scandal and looked very bad for the Department, the Minister and everyone involved. However, that has not happened in the context of this Bill. It does what it says on the bottle. We should try to work together to make it happen.
The sunset clause whereby the powers will lapse on 9 November must be adhered to. The Dáil must consider the matter again on 9 November. It is to be hoped that we will be in a better situation by then and will be trying to get more things open and more parts of our society to work better together to better deal with Covid. We all need to work together to do that. The virus is not going to go away; it will be here for quite a long time. I understand from where people are coming with regard to attacking the Bill and stating it is this, that or the other. It is a reflection of the anger, suspicion and worry that many people have. Their lives have been impacted so negatively by all of this but, at the end of the day, Deputies must work together in the best interest of the public good. That is what we are here to do. If we can do so with regard to this legislation, accepting that it has a sunset clause and will end on 9 November unless the House decides to extend it, that is the way forward. We need to look at it in the round and see exactly what it will do.
On the amendment, I await with interest the Minister's response to it and her rational for the inclusion of the relevant clause. If there are good reasons for the clause, we must accept them, but if there are not, the amendment should be accepted by the Minister.
I strongly oppose this measure. It is unnecessary and very divisive. What we need at this time is collaboration and consultation with businesses, many of which are on their knees. I wish to point out that the vast majority of pubs and restaurants have been very responsible and have gone beyond what has been asked of them in terms of putting safety measures in place. The Bill is unnecessary and very heavy-handed. The legislation is very ambiguous and I can see legal problems arising as a result. It is not well thought-out. I do not know how any rural Deputy who knows what rural villages and towns are like can honestly support the Bill. What is needed is a reality check. Anybody who comes from rural Ireland will know that the highest number of customers in a pub most nights is 15 to 20 people. I know that is the case in my area.
The social distancing occurs naturally. There is a total disconnect with rural Ireland and what is happening there. This will cause more division because people have gone out of their way. There is a very small element in big cities where there were breaches and which needs to be monitored. I absolutely agree that they should be monitored, but rural businesses should not be punished. They have already been punished severely.
The lack of collaboration and consultation has been shameful. Why was the road map for reopening pubs not produced at the same time as this legislation? It is all one-way traffic. It is a very heavy-handed and unfair approach. I urge the Government to think carefully about doing this. The Bill is going to create problems and issues will arise from it. The Garda has more to do than to check all the pubs. There has been a shortage of gardaí in my constituency of Laois-Offaly for many years. I do not know how the gardaí there will be able to get to grips with rural crime and anti-social behaviour as well as having to monitor pubs. There is no need for them to do so because the vast majority of publicans are very responsible people. It is totally unnecessary.
This Government being so out of touch with rural Ireland, I suggest they take a staycation in rural counties. If they take that staycation, maybe they will see the reality: how we operate, how we survive against the odds in rural Ireland and how many of our businesses have been unfairly decimated because of ill-thought-out legislation and the lack of adequate supports.
I believe this is a grave mistake. I hope that supports will be given to the publicans and that the trust that is broken and the relationships that have been broken down as a result of this will be rebuilt constructively in some shape or form because we all need to work together on this issue. Pubs and restaurants have been treated shamefully.
In my constituency of Laois-Offaly, we were already stigmatised with an unnecessary lockdown because a localised lockdown was not implemented and, instead, three counties were entirely closed down. In the case of Laois-Offaly, it was completely wrong. That already has caused problems and, indeed, has created a stigma. We will have a worse situation now with these draconian measures being brought in and with there being a breakdown now in collaboration. There was never proper collaboration in the first place because representatives from those businesses and the vintners' association should have been included. The hospitality sector was completely shut out all along with the different measures that have been brought in. There was no consultation and no collaboration. There was one-way traffic and a heavy-handed approach. I absolutely oppose it in every shape and form.
I support Deputy Howlin's amendment. First, it is reasonable to say that this is rushed legislation where there is much detail that needs to be scrutinised and fully understood. I do not accept that, because the committees were not up and running, we could not have done that. We set up the Special Committee on Covid-19 Response specifically to deal with Covid-19 matters, and I see no reason the Bill could not have been referred to that committee to undertake more detailed scrutiny on it.
I am conscious that we must bring in measures quickly to respond to an unpredictable virus that we do not yet fully understand and where we do not know the trajectory of infection, sickness, hospitalisation and where it could go. There is no doubt that one of the environments in which Covid-19 almost certainly likes to transmit is where there are large numbers of people in an enclosed space drinking alcohol, with raised voices, singing etc. We know enough of the science to know that this is an environment in which Covid-19 is likely to spread and it is right that the Government and all of us would want to ensure that we do not give licence to situations which are likely to become super-spreading environments.
Having said that, those who are concerned about this Bill have also made reasonable points. I took a staycation, as I suspect most in this House did, in rural counties and there is no doubt that the vast majority of licensed premises selling food and allowed to open were abiding by the restrictions and were being compliant. I have no doubt that if pubs reopen, the vast majority will do likewise. We also know that the potential is there. There have been some instances of reckless behaviour which could be extremely dangerous in terms of the transmission of the virus and it is reasonable for the Government to want to have measures in place to ensure that action can be taken swiftly to deal with that. Therefore, this is a fine balance.
However, and this is the point about this amendment and my party's amendment that comes later, there is a problem with the legislation, what the Government says it is about, and what it might allow the Government to do. Deputy Howlin points out that, in line 13 on page 5, where the Bill refers to "the purposes of giving a direction under section 31A(7) of the Act of 1947", the Health Act which has been amended to give powers in relation to Covid-19, it states in line 14 "whether in relation to a relevant provision or otherwise". Therefore, it is not only the relevant provision as set out in the amended legislation but could be something else. That seems dodgy from a legal point of view. It means we do not really know what we are doing here or what the possible consequences of this might be.
I will go on to explain, in terms of my party's amendment seeking to delete section 13, that similar problems exist there. The Bill says it is doing a limited set of things relating to pubs to ensure compliance and prevent the transmission of the virus, but it then possibly gives other powers or rights to the Minister to do other things under the Health Act that are not necessarily related to that at all, and potentially to do other things completely beyond the scope of the stated intention of this Bill. That is the concern. In that sense, it is sloppy or it is potentially giving the Government carte blancheto do other things that are not stated as the intention of the Bill. Deputy Howlin is right in this regard, and similarly, as I will go on to argue, in section 13, which should be deleted because it gives unspecified powers to do other things beyond what is stated as the intention of the Bill.
I thank Deputy Howlin for tabling this amendment. I will touch on a few points that have been raised but are obviously relevant to this. It has been suggested that this legislation is anti-publican and anti-rural Ireland. As the Minister who is bringing this forward and as somebody who has worked in a pub for almost a third of her life, most of the time in a rural pub, I can reassure Deputies that this is nothing of the sort. What I believe this does for those publicans whose premises are open at present and who are serving food, for restaurateurs, for clubs, whether GAA clubs that have bars or private clubs, and for the vast majority of people who are adhering to the public health regulations who have done so much to make sure that they are in compliance and are working hard is let them see that for those who are not, who are breaking the rules and breaking the law, there are consequences. It also provides clarity because a number of people have mentioned commentary over the weekend. I fully accept that it has been challenging over recent weeks and months where there have been different regulations and where things have, perhaps, changed more quickly than we would like. It provides greater clarity for members of An Garda Síochána when they enter a premises as to whether somebody is breaking the law. That is what people want. I certainly think that is what the publicans want. This is what this legislation is doing.
I am assured that this legislation is not flawed and that there are not errors in it. This has gone through the capable hands of our drafters, with officials in my Department and with the Attorney General. While we have waived the pre-legislative scrutiny, and I sincerely thank the Deputies for allowing that, we have been careful. The drafters are careful in the language that they have used and everything that is in this Bill is here for a reason.
On Deputy Howlin's amendment where he proposes to delete the clause "whether in relation to a relevant provision or otherwise," first, I would note, and it is something that was said yesterday and repeated today, there is absolutely nothing in this Bill that in any way allows a member of An Garda Síochána to enter a home.
There was reference earlier that the word "otherwise" could refer to anything. It is very clear, as Deputy Martin Kenny outlined, that a relevant premises, as indicated in the legislation, is only in relation to a premises that sells alcohol or has a liquor licence, whether it is a pub, restaurant or club. There is absolutely no provision in the legislation, nor will there be legislation, that will allow a member of An Garda Síochána to enter someone's home. The only way that can happen is with a warrant and that will continue to be the case.
Section 3 in its entirety provides a power of entry for members of An Garda Síochána to a licensed premises or a registered club in order to check for compliance with Covid-19 regulations and to enforce those regulations where enforcement becomes necessary. If someone enters a premises and asks that it become compliant, and it does, little needs to be done after that. Enforcement maybe by way of certain powers already contained in the Health Act or through the new enforcement power which has been allocated in the Bill. Section 3(1)(a) which is the specific section raised by Deputy Howlin provides the power of entry for "the purposes of giving a direction under section 31A(7) of the Act of 1947," to comply with regulations where the member of An Garda Síochána has reasonable cause to believe there is a breach of regulations. It allows them to enter where the "otherwise" part, which Deputy Howlin and others have highlighted, refers to the fact that under section 31A(7), which is the Health Act under the Minister, Deputy Donnelly, a garda can direct a person to comply with any penal regulations. Penal regulations have been introduced that may not be specific to this legislation in relation to the direction a garda will give to either close the premises for the remainder of the day, or for three, seven or 30 days, depending on whether the case goes to the District Court. They have been introduced under emergency health legislation where it is a crime where someone is not in compliance with the penal regulations. Already, under statutory and common law powers of entry, gardaí have an ability to check for compliance with the regulations or penal regulations and issue directions to comply. The Bill establishes a very clear and specific power of entry for the gardaí for these purposes where someone is in breach of a penal provision enacted by the Minister for Health.
It is also important to note in regard to any of the regulations that the penal regulations introduced by the Minister for Health must be laid before the Houses and either House can, by resolution, annul such a resolution within 21 days. There is parliamentary oversight of the regulations and penal provisions of the Minister's provisions.
As currently worded, the power of entry will apply for the purpose of giving a direction to comply with any penal provision under the Health Act regulation in respect of any relevant premises. The section does not allow them to enter any other premises, merely to ensure that if someone is in breach of the penal provision directly related to the specific Health Act, namely, the emergency Act that comes under the Minister for Health, that they will be allowed to do so. They may not enter for some other reason and catch someone out while there.
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.
I will give the Minister an opportunity to respond to the Deputy's question before I call Deputy Mattie McGrath. I remind Deputies that Committee Stage will come to an end at 1.30 p.m. They might keep that in mind.
To clarify, if we take the two lines separately - I think the Deputy accepts that the first line needs to be included - the purpose of giving a direction under section 31A(7) of the 1947 Act relates only to penal provisions. Under the overall Act, measures have been brought in that are law but are not penal provisions. Section 31A(7) is specific to penal provisions. In the second piece, the penal provisions related to the legislation before us provide for the Garda to be able to enforce either the closure for up to a day, three days, seven days or 30 days, or other penal provisions related to health. If gardaí see that a person on a licensed premises is breaking the law or a penal provision that has been included as part of the regulations, where it is in contravention of public health guidelines or where there is a risk to somebody's health, under various statutory and common law powers they already have an ability to enter that premises. The Bill will just make that very clear. The first subsection, which involves section 31A(7) of the Act, refers to all the penal provisions relating to premises where alcohol is sold. It is not just those provisions that are prescribed specifically for the enforcement of this legislation but also where other penal provisions are breached. The Bill will tie in the two aspects but it is very specific. Section 31A(7) relates only to penal provisions and that is what is intended by the inclusion of the line.
I return to the matter of plain English. Section 3(1)(a) refers to "the purposes of giving a direction". What does a "direction" mean? According to the interpretation section, a direction has to be "in relation to a relevant provision". A direction is a direction under the relevant provisions of the Bill. It goes on to specify "whether in relation to a relevant provision or otherwise". That is not in accordance with the definition of direction. The direction in section 3(1)(a) is not a direction under the Bill. I do not want to sound too convoluted. If the words "or otherwise" are allowed to remain, it will change the definition in section 3 of the word "direction", as set out in section 1. There cannot be an inherent contradiction in a Bill.
Under section 31A(7) of the Health Act, which outlines the penal provisions, a garda can direct a person to comply with any penal regulations. That is already included in the Health Act, which is mentioned in the first sentence. Where the Bill refers to a direction, specific to the implementation of the closing of a pub, that is very specific to the penal provisions that will be connected by the Minister for Health when the Bill is enacted.
It is not changing or adding anything. It is just making very clear that a garda has the power to enter a premises where he or she sees that somebody is contravening a penal provision under section 31A(7) of the Health Act, which refers only to penal provisions.
I am really disappointed with the Minister. I defer to Deputy Howlin, who has had a long service in the House and, as a Minister in a number of Governments, was in that seat putting through legislation and dealing with the Teachtaí Dála who wanted to make amendments or whatever. He is dead right. We are down to a matter of two words. On Sunday, I heard a representative of an organisation - I cannot remember which one it was - questioning the uncertainty and the unclear guidelines under which gardaí must operate in the context of Covid-19. We all support, salute and compliment the Garda, including in Tipperary and elsewhere where I have engaged with it. It has been great and it has been a great revisiting of the community spirit, community alert and support for the Garda. It has been great, despite all the bad aspects of Covid, that the Garda has done well, which gives an element of hope for the future of the Garda.
This is putting gardaí in an invidious position, as the representative in question noted as well. I also heard her say that some of the penal provisions were civil matters. My understanding is that they cannot be and that the Garda has no power to make directions in that regard or to do anything with them. I understand that a civil matter is something between the Ceann Comhairle and me, for example, where we take on our own cases. There is utter confusion. I cannot understand the obstinance of the Minister today - no disrespect to her personally - in refusing to remove these two words at the request of Deputies who have supported her legislation. I have not supported the legislation and I will not do so, but Deputy Howlin and his party have, with reservations, as he has stated. I listened to his Second Stage contribution yesterday and I acknowledge his experience.
He knows, as do I, that we are playing with words and semantics here, but these are generations of families in self-employed business who have never asked the State for a penny, who comply with the Licensing Acts every year and get their licences renewed because of the way they run their businesses, who provide employment and pay rates, tax, wages and insurance, and who support everything that goes on in the communities. In many communities the last bastion is the pub because everything else is gone. Funerals, tragedies, celebrations, christenings and parties are held in the public house, and publicans make their places available, warm and with comfortable surroundings in a safe and managed environment, which they have to do to secure a licence but they want to do it anyway. We are using a sledgehammer to crack a nut. If the Minister had-----
I am aghast that the Minister will not remove the words by accepting the amendment. Many Government backbenchers are in the Chamber talking about supporting publicans but they will be voting against them. There is no roadmap or legislation to allow the pubs to open. There is no green light. I spoke at the meeting on Monday with NPHET, which Deputy Howlin and the Taoiseach also attended, and we were given no idea of when pubs might open. We were told it could be next March. This is the problem. The Government is dangling a string in front of publicans, but as well as that, it is tying two hands behind their backs and blindfolding one eye. It is silly. It is semantics in the extreme that the Minister, with her officials and draftspeople, will not explain the provision. We have no concept of the range of the phrase "or otherwise". We cannot get clarity on that and I am only a layperson, not a barrister or solicitor.
"Or otherwise" could mean anything. The Minister cannot tell us that it could not because it could. The Minister could tell me to sit down or otherwise. This is pedantic and childish. I do not mean the Minister personally. It is semantics. I heard a lady from An Garda Síochána address it. They do not have the clarity. They are going one step forward then two steps backwards. It needs to be clear. With regard to sending gardaí in to inspect the pubs which are giving this €9 meal, NPHET told me last week that it never dreamed up this idea of a €9 meal. I got an email this morning about two gardaí visiting a premises looking at people's plates to see if the pork chop, pizza or burger was valued at €9. I would not know. I would know after eating it what it was worth but gardaí are not qualified to know whether what is on a plate is worth €9, €6.50 or €4.50. It is ridiculous and childish. We rushed it through at first and we all supported it. We have time for cool reflection and management of it. It is not fair or equitable and there is no limit to "or otherwise".
When we refer to "or otherwise", it is only with regard to section 31A(7) of the Health Act 1947. The penal provisions have been signed into law and have been published by the Department of Health. They are clear for people to see. The "or otherwise" cannot refer to anything outside of those specific penal provisions that have been approved and have come before the Dáil, which are now on the Department of Health's website for people to see. It is clear that it does not refer to anything else. Deputy Howlin talks about the direction. The direction as outlined in section 1 is for the implementation of this legislation but there is already a provision under the Health Act which allows for gardaí to enter where they see that the penal provision under this section has been breached. It merely outlines that and states that it is a penal provision related to this legislation. It is already there. The phrase "or otherwise" is pointing out that the provision is already there and that gardaí know that they can enter that premises.
I do not think we can prolong the debate any longer. I do not agree with the Minister. She is right to say that there are other provisions in regulations under the 1947 Act. They are not germane to pubs or licensed promises and they are enforceable under separate legislation under the Act, relating to separate issues. Why does the Minister want to mirror this in this Bill? This Bill is supposedly confined to licensed premises. The notion of having a catch-all "or otherwise" added to it because some other regulation might be brought in such that a garda can enter under a warrant to give a direction when there by the by is not the way that normal legislation is constructed. It is not normal to put in a catch-all so that if a garda sees something else while there, the garda can act. Gardaí get a warrant to enter a premises for a specific purpose under normal circumstances. We have all seen cases thrown out of court because the warrant was not specific enough or things were done outside the terms of the warrant. We have a clear legal framework under which our police operate and we are blessed to have police who operate within those confines. Let us be clear in the legislation that we are creating. I disagree with the Minister and will press the amendment.
On a point of order, the Leas-Cheann Comhairle has just pointed out that we will finish at 1.30 p.m. We have only managed to discuss one amendment and as we see when we drill down into the detail, there are many questions to be asked. My own amendment is the third. When we discussed at the Business Committee that there was limited time for this, I am pretty certain that a commitment was given that if we needed a bit more time, that time would be given. I put it to the Leas-Cheann Comhairle that we need more time. There are serious amendments and serious matters. I know some of the earlier contributions were effectively Second Stage speeches but serious scrutiny of this legislation requires a little more time. I appeal, following the commitment given by the Government, for extra time for that scrutiny to be allowed.
I hear the Deputy's support. As it stands, that is the agreement before me. I am not a member of the Business Committee. This is what I am told has been agreed and we will come to the end of Committee Stage at 1.30 p.m. Perhaps there might be a chance for the Business Committee to talk about this between now and then. I do not know. That is what is before me. If we go into this, which I will not allow, we will prevent any further discussion on the next amendment. At this point, I will put the amendment.
If Deputy Howlin presses this amendment to a vote, as he may well do, then all the time will be gone. I would like a second opportunity to speak before that happens. I ask the Minister to contact the Whip to ask for extra time. Unless the Government comes in, which it should, to give us extra time as the Government Chief Whip promised, then I want to speak again on this amendment.
Deputy Boyd Barrett can resume his seat. The instructions before me are that Committee Stage comes to an end at 1.30 p.m.
I am now instructed that it will go on for one more hour but that the whole Bill will come to an end at that point.
Mick Barry, Richard Boyd Barrett, John Brady, Martin Browne, Pat Buckley, Seán Canney, Matt Carthy, Sorca Clarke, Michael Collins, Rose Conway-Walsh, Réada Cronin, David Cullinane, Pa Daly, Paul Donnelly, Dessie Ellis, Mairead Farrell, Kathleen Funchion, Gary Gannon, Johnny Guirke, Marian Harkin, Danny Healy-Rae, Michael Healy-Rae, Brendan Howlin, Alan Kelly, Martin Kenny, Pádraig Mac Lochlainn, Mary Lou McDonald, Mattie McGrath, Michael McNamara, Denise Mitchell, Imelda Munster, Catherine Murphy, Paul Murphy, Verona Murphy, Johnny Mythen, Gerald Nash, Denis Naughten, Carol Nolan, Cian O'Callaghan, Richard O'Donoghue, Louise O'Reilly, Darren O'Rourke, Donnchadh Ó Laoghaire, Ruairi Ó Murchú, Aengus Ó Snodaigh, Thomas Pringle, Maurice Quinlivan, Patricia Ryan, Seán Sherlock, Róisín Shortall, Duncan Smith, Brian Stanley, Pauline Tully, Mark Ward, Jennifer Whitmore, Violet Wynne.
James Browne, Richard Bruton, Colm Burke, Peter Burke, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Ciarán Cannon, Joe Carey, Jennifer Carroll MacNeill, Jack Chambers, Niall Collins, Patrick Costello, Simon Coveney, Barry Cowen, Michael Creed, Cathal Crowe, Cormac Devlin, Alan Dillon, Stephen Donnelly, Francis Noel Duffy, Bernard Durkan, Damien English, Alan Farrell, Frank Feighan, Peter Fitzpatrick, Joe Flaherty, Charles Flanagan, Seán Fleming, Norma Foley, Brendan Griffin, Seán Haughey, Martin Heydon, Neasa Hourigan, Heather Humphreys, Paul Kehoe, John Lahart, James Lawless, Brian Leddin, Marc MacSharry, Josepha Madigan, Steven Matthews, Charlie McConalogue, Helen McEntee, Joe McHugh, Aindrias Moynihan, Michael Moynihan, Jennifer Murnane O'Connor, Eoghan Murphy, Malcolm Noonan, Darragh O'Brien, Joe O'Brien, Jim O'Callaghan, James O'Connor, Willie O'Dea, Kieran O'Donnell, Fergus O'Dowd, Roderic O'Gorman, Christopher O'Sullivan, Pádraig O'Sullivan, Marc Ó Cathasaigh, Anne Rabbitte, Neale Richmond, Michael Ring, Eamon Ryan, Brendan Smith, Niamh Smyth, Ossian Smyth, David Stanton, Robert Troy.
I move amendment No. 2:
In page 6, between lines 26 and 27, to insert the following: “(6) Nothing in this Act prevents a licensee from putting in issue or a court from determining, in subsequent legal proceedings to which the question is or may be relevant—(a) whether the member who gave the direction in respect of the premises concerned had reasonable cause for suspecting the contravention of a relevant provision in respect of those premises,
(b) whether the steps which the member directed to be taken were reasonably necessary to ensure compliance with the relevant provision,
(c) whether the specified person had lawful authority or reasonable excuse for failure to comply with the direction,
(d) whether the giving of an authorisation under subsection (2) was appropriate in the circumstances, or
(e) any other question related to the lawful validity of the immediate closure order.”.
Again, the reasoning behind this is simply to improve the Bill and the amendment does that. I want to amend section 4 which deals with immediate closure orders for failure or refusal to comply with a direction. The simple fact is that under this Bill when an immediate closure order is determined, there is no-----
When an immediate closure order is made by An Garda Síochána, as is clear from the term, it has immediate effect. If somebody feels aggrieved there is no way that the validity or reasonableness of an immediate closure order can be scrutinised by a court because if a premises is closed for the day, by the time a proprietor has any remedy it is obviously too late. We accept that because in circumstances where there is a significant breach of the penal elements of the legislation and the guidelines drafted by the Minister for Health, an immediate closure order is required, acceptable and proportionate. However, the fact that such an order is made means that the order, which has never been contested, challenged or scrutinised, can become grounds in and of itself for objecting in a subsequent hearing in the licensing court to the granting of a licence or a certificate for a club. My amendment accepts the fact that an immediate closure order might well be warranted in exceptional circumstances where there is an egregious violation of the health grounds and public health has to be safeguarded.
Where a publican wants to contest the closure order as being unwarranted, he or she cannot do so immediately because the effect of an immediate closure order is immediate and that is done and dusted. However, prima faciethat order then becomes evidence in a subsequent licensing court hearing. It can be argued that a premises was closed under an immediate closure order which could have serious implications for the maintenance or granting of a license for a public house. The purpose of the amendment I am suggesting is to make such a situation contestable in the courts. I am sure the Minister will tell me that this is the case in any event but in that case, there is no difficulty in positively saying so by adding the new subsection (6) that I am proposing. The amendment begins as follows:
In page 6, between lines 26 and 27, to insert the following:
“(6) Nothing in this Act prevents a licensee from putting in issue or a court from determining, in subsequent legal proceedings to which the question is or may be relevant—
It then sets out the grounds that are appropriate.
I do not want to sound too complicated, but in essence, where there is an immediate closure order and where, for practical reasons, there is no way of contesting it until the effect of the order is implemented in any event, then rather than it simply being a determined fact that is incontestable subsequently, we provide for a defence. If a licensee, in a subsequent licence hearing in court, wants to set out a defence for the issue and maintain that the particular closure order was unwarranted, then it would be up to that licensee to make such a case in court in the normal circumstances. I call on the Minister to give the safeguard that the normal rules and protections for people apply.
I am not suggesting that any senior garda would act capriciously or that events might flow in a certain direction in terms of a dialogue that might happen in premises that might result in an immediate closure being given, although in objective circumstances, if a court were to look at it, that would not be warranted. That might never arise, but should it arise, the closure order, under the terms of the amendment I am suggesting, would not be an incontestable fact in terms of any subsequent hearing in court or on the maintenance of an individual's licence.
I will be brief because I know time is short for amendments and the debate. This is more draconian legislation. I have heard regularly from people of machinery being stopped on the road. The Road Safety Authority checks on a machine to see if it is working and use ceases for the day. Such a person has the chance to go back. However, if a licensed premises is closed like this, it would have an unintended, or maybe intended, impact when the licence holder goes back to licensing in September.
I wish the Government people voted for this could see the implications of it. Its members are standing up here talking about support for publicans and about how a roadmap is on the way. There is no roadmap. This legislation and the abject refusal to accept any amendments simply go to show it is a sledgehammer and an attempt to bulldoze the legislation through.
I support Deputy Howlin's amendment. However, I have a concern with it as well in that he says it would be up to the publican to demand a court hearing. Why is the venom all being directed to the publican? For all other citizens, the Garda issues a summons and prosecutes. That is the form the law takes with every other offence. I do not see why it should be up to the publican to go to the expense of calling or demanding a court hearing. If the crime were so serious, then it should be up to gardaí, the superintendent or the Minister, who is demanding that these new laws be put in place, to organise the court hearing and give the publican or whoever it is a fair chance. They may not have the "whereas", by which I mean by the publicans may not have the money or funding to organise or get a court sitting or hearing. It is all unclear.
This legislation is totally unnecessary and draconian. What is going on here is absolutely ridiculous. It amounts to trying to suggest that publicans are guilty before we have any rules or regulations for them. I have been getting cross since I heard from Deputy Bruton earlier in the day that it was up to the publicans to come forward with rules or regulations so that they may open their pubs. Can those in Fine Gael, the party that has been in government for the past nine years, not organise the rules and regulations they want to put in place? At this late stage, after being closed for six months, they are suggesting that the publicans should put forward the rules and regulations. Shame on them. They should not be in office at all and it is time for them to get out of it if that is what they are doing to ordinary good living people who have never done anything wrong. In every group or sector in society there are people who do not adhere to the regulations and rules. Yet, by and large, publicans for the past 150 years have abided by every law and regulation. Going back over the decades there was ridiculous legislation by which publicans had to abide. Going back in history, if a person was more than three miles from a pub, he could get a drink, whereas the person who was one and a half miles away could not get a drink. There were ridiculous things like that.
I will. I am sorry, but I am cross with what is going on and what is being attempted in Dáil Éireann today. I am suggesting that if the crime is so serious and a garda, on the instructions of the Minister, says that the rule is broken in such a fashion, there should be a court organised immediately and the defendant, the publican in this case, should be given a chance to defend himself and to present his story as he sees it. Sometimes, when someone arrives on the scene, he may react in a different way from how he would have reacted if he was there for a half an hour or an hour beforehand or if he was there before what was deemed to be an offence occurred.
This is totally and absolutely wrong. I will be supporting Deputy Howlin's amendment to the extent that I believe the whole thing is wrong. However, Deputy Howlin's suggestion that it would be up to the publican to demand a court hearing amounts to putting the cart before the horse again. I call on him to consider that. I appreciate the good work and attention that Deputy Howlin is giving to this Bill.
Further to what Deputy Healy-Rae was saying, my understanding, if I am not incorrect about what Deputy Howlin is proposing, is that if a pub is closed for a day, it would not be conclusive that it was correct to close it for a day. Moreover, if that is being used against a publican in subsequent legal proceedings, for example, when he is renewing his licence in September, then he can then go behind that and say that he accepts that it was closed for a day but he does not accept that it was correct to do so. I think that is the effect of Deputy Howlin's amendment, if I am not incorrect.
I am very much interested in the Minister's response to this, because at the moment it would seem to me that of course a publican can challenge being closed for a day long after the premises has been closed for a day. I would be interested to see how the Minister suggests we can remedy that. The Minister may say judicial review is the avenue. Of course a person has access to judicial review and can challenge a decision. A person has three months to challenge any administrative action, but we need to get real here. A judicial review is carried out exclusively in the High Court by way of affidavit. It is incredibly expensive. To bring about a judicial review of a closure for a day would mean that a publican would have to spend tens of thousands of euro in legal fees. With the greatest of respect, I would have thought the High Court has more to be doing than examining the appropriateness or otherwise of closing a bar for a day. Obviously, closing a bar for a long time amounts to deprivation of livelihood, but closing a bar for a day is something that I hope is not being proposed for the High Court to examine the rights and wrongs of through judicial review.
I am very much in agreement with Deputy Howlin and I am minded to support his amendment.
Of course, I have an open mind as to what the Minister will say on how, if a publican is closed for a day, they can subsequently challenge that without going to court or without starting legal proceedings. What legal proceedings can be taken? If it is not a judicial review, then what is it? If a person does not challenge something at the time, it is taken to be valid, which is an invidious position. If a publican is closed for a day and comes back six months, nine months or a year later to renew their licence, and the local sergeant is asked if there are any objections, the sergeant might say he wishes to bring to the court's attention that this pub was closed for a day back on St. Patrick's Day. The publican could then say they do not accept it was right to be closed for a day but that a garda told them to close for a day and, of course, they adhered to a direction of a member of An Garda Síochána. What avenue does the publican have to challenge this? If the Minister is saying there is no avenue to challenge this other than a judicial review, which, as I said, is utterly unworkable in terms of the reality of the caseload of the High Court and the cost of judicial review, it means Deputy Howlin's amendment is imperative so there can be justice. It is one of the most basic principles of justice that people can challenge a State decision in respect of them if they do not agree it is correctly taken.
I would like to speak on Deputy Howlin’s amendment. The publicans of Ireland are, after all, tax collectors, revenue collectors and collectors of excise for the State, and have collected serious amounts of money for Governments present and past, and will do so in the future, those of whom will be allowed to stay open or who will be able to stay open after this further draconian legislation is passed.
It is ironic and beyond belief that we are here today figuring out ways of penalising people whose doors are still locked because of rules and regulations that are still in place, while the rest of Europe, including Northern Ireland and England, and other parts of the world see fit to allow their public houses to open their doors and sell alcohol in a responsible and safe way. Our Government is insisting on making them keep their doors closed and in case publicans feel there is a movement within Government to perhaps allow them to open in the coming weeks, it is here making the hammer to hit them with.
I take great exception to what Deputy Bruton said earlier when he tried to mislead us about what I had said very clearly. I was stating on the record of the House that I was supporting An Garda Síochána in the work it is doing because I believe it has much to do as it is in keeping law and order in our State. Here, the legislators who choose to vote for this legislation are putting a further burden on them. What I clearly asked was whether the Government is going to give additional resources to the Garda, or in what way it is hoping to assist the Garda in implementing the legislation it is bringing forward. Instead, Deputy Bruton changed what I said and tried to give the impression that I was saying something against An Garda Síochána, when it was exactly the opposite and I was supporting An Garda Síochána.
Leading people in An Garda Síochána have questioned what the Government is doing. They have questioned this legislation and asked the Government to seriously consider it before it is enacted and passed by this House. Even at this late stage, before any further votes take place, I would plead with the people who are blindly supporting this, many of whom have not actually read it or understood the enormity of what is going on here today. It is ridiculous. If anybody came into this House and asked right now, this minute, what Deputies are actually debating, what they are actually doing and what they are proposing to do to publicans and to other people, they would find it ironic beyond belief that Ministers in government see fit to be doing this at this time. It is crazy; it is beyond belief.
What I would say to the Minister and the Deputies who are supporting it is to look into their hearts and souls. They should think about where they and the people before them were holding their clinics over many years, when they were damn glad to go and meet people in public houses. Publicans facilitated politicians over the years by allowing them to go into a quiet corner or perhaps into a back room to meet with people who had issues, such as local members of the IFA, the ICMSA or the Irish Countrywomen's Association who had a matter they wanted to raise with their local politician. They met in a public house with individuals who had problems or issues, yet this is the gratitude and the thanks we are giving those hard-working publicans and their families. We are turning around today and figuring out ways of hurting them, which is so wrong. That is why I am glad to have another opportunity to have a cut off this nonsense that is going on here today.
I support Deputy Howlin’s amendment. This whole legislation is another attack on the publicans of this country. I have already said in the past week in the public domain that Fine Gael spent four years trying to get rid of the rural pubs, aided and abetted by Fianna Fáil, but now Fianna Fáil is doing its level best to close their doors, and the doors have been slammed shut, unfortunately, for the past number of months.
We have been told that a pathway is now being considered to open the doors of the pubs but this legislation is another attack on most of these publicans. In 99% of cases, publicans are complying with all the rules and regulations that are put before them, and they are simply asking to open their doors and they promise to comply with the rules. However, it could well happen, from listening to what Deputy Howlin and others had to say, that a judicial review would have to take place if a bar or pub had to close for one day. It is farcical to think publicans would have to go to that type of cost to open their doors.
From talking to members of the public, I know they are very frustrated. There are many rules and regulations in place due to Covid and most people have accepted that and have worked at that, and we in this House have supported it up to now. However, this is one step too far. People see that this Government is starting to dictate and what is going to happen is that the Government will lose the goodwill that is out there due to its dictating. It is going to have to take a step back and work with people. As I said, everybody is doing things they wish they did not have to do, but they understand the situation we are in. To just take the last week, there have been further rules and regulations. I see in the Southern Starthis morning that fishermen feel the Government signed a statutory instrument forcing penalty points on the hard-working fishermen and fisherwomen of this country. Again, it is another rule, another regulation. The Government is clearly forcing rules and regulations on the people of this country.
As I said, we supported any legislation that was brought before us in the past few months. I personally feel that any legislation brought before us should be strong enough to enforce, if the gardaí are there to enforce it, but even the Garda representative body has made it very clear they are not overly supportive of this because they do not have the manpower to carry out much of what is being proposed, although it looks good on paper.
Many parties are being held and that needs to be controlled because they are outside a proper control environment. However, that is because the Government left the bar doors shut. Unfortunately, and while I do not support this, people had pubs set up in sheds, in gardens and God only knows where because they felt there was no other place to go, whereas the controlled environment was the place to have them. When there are situations, the rules and regulations that are already there are well complied with by publicans, and when the odd person breaks the law, the law can come down on him or her. Now, however, the Government is striking more rules and regulations for a sector that has been finger-pointed by the Government continuously in the past six months as a sector that has been the cause of the coronavirus spreading in this country, which is outrageous. I will certainly support the amendment.
Although I do not think it is the intention of Deputy Howlin, I point out that this amendment does not actually intend to provide for a right of appeal.
The amendment seeks to include a provision in section 4, which the Deputy has rightly outlined deals with the immediate closure of a premises where the Garda determines there has been a serious breach of a Covid regulation despite previous Garda engagement with the premises to become compliant and it has not done so. Deputy Howlin's amendment seeks to state that there is nothing in this Bill that would preclude a licensee from raising any number of matters or defences at a later stage should this issue be raised, in particular, if I understand the Deputy correctly, the renewal of a licence to which a garda is objecting on these grounds. There are not measures in this Bill to stop a closure because it is not practical as an immediate closure is something that happens immediately. Following on from that, Deputy McNamara is correct that the judicial appeal is the next step.
We are speaking about an immediate closure. This step would be taken following a failure to comply with Covid regulations. I will clarify that for the Deputy.
The amendment addresses matters relating to criminal procedures and evidence, which is not what we are dealing with in this particular Bill. I am not sure we would want to set a precedent of setting out what a person could or could not raise as a defence either in a court procedure or where a licence is being renewed. It also suggests that if we were not to include this, the Bill may be unconstitutional. It would be wholly unconstitutional if a person was not able to raise certain defences if his or her premises had been closed, whether it was weeks or months later. We know that licences are being renewed this month. If, this month, a garda was to raise the fact that a premises had been closed after this legislation had been enacted, it would be the right of the publican or the licence holder to make sure that he or she could raise any of the issues outlined from (a) to (e) during that procedure. There is nothing in this Bill that precludes that from happening.
I stress that this amendment does not provide the right of appeal. It makes it clear that the person has a right to appeal and to raise these issues, which is the case as things stand. It would be wholly unconstitutional if that was not the case. As I said, it is very clearly the case now.
Before I call Deputy Howlin, I would like to make a brief intervention. By order of the House, this debate is to conclude at 2.27 p.m. When we have dealt with Deputy Howlin's amendment there remains an amendment to section 17 in the name of Deputy McNamara.
There was an understanding that the Government would provide some additional time. I suspect Deputy Chambers may arrive to facilitate that. I ask Members, if we are to get as much business as possible done, to bear that in mind. I apologise to Deputy Howlin for the interruption.
I have tried to confine my remarks to my own amendments in each of the contributions I have made and I will do so again. The Minister said that people have the right to appeal. They do not have a right to appeal. As the Minister already outlined in response to Deputy McNamara, there is no appeal mechanism. There is a judicial review mechanism, which for the reasons stated by Deputy McNamara is certainly not one that is open to the vast bulk of publicans either for practical reasons or for financial reasons. The loss of a day's take would be a fraction of the cost of a day in the High Court taking judicial proceedings. For clarity, there is no appeal mechanism.
I have accepted in what I said that there may well be circumstances in this time of unprecedented pandemic where it is right and proper to close a premises instantly. That is not at issue. I understand and accept that to be the case. My point relates to an immediate closure that cannot be challenged because it is not appealable in any way as it would have instant effect but is used in a subsequent hearing. For the benefit of Deputy Danny Healy-Rae I am not suggesting that a person would appeal a decision to the High Court. I am suggesting that in the normal September licensing hearings, if a member of An Garda Síochána, as outlined properly in terms of my intent by Deputy McNamara, objects to the granting of a licence on the basis that the premises was closed for a day under an emergency closure order encompassed by the provisions we are now enacting, that that would be contestable. In other words, it would not be uncontestable by virtue of the fact that it happened and that would be grounds for depriving people of their licences. I am saying that would not be right.
As there is no appeal, it may well be the case that any fact can be presented to such a licensing court but if there is an uncontested judgment against a publican and his or her premises has been closed for a day, that is a very formidable weight of evidence. We should state clearly that there are grounds to contest that, which I listed earlier. The Minister's response was that the grounds set out in the manner of (a) to (e) is confining. Section 4(2)(6)(e) states: "any other question related to the lawful validity of the immediate closure order." It does not confine anything, so there is no issue of constitutionality about it. It is open-ended in that if there is belief that for any particular reason the closure order was invalid, it would be open for the court to hear that. It would not be taken as wholly writ and an uncontestable fact that the premises was closed and therefore a serious breach of regulations happened and that would be cause, without further explanation, to deprive somebody of a licence. I am suggesting that provision should be allowable in this Bill such that somebody who feels that he or she has been very unfairly treated and who has no other recourse because the decision is not appealable and it is not practical to have a judicial review - this might never arise - can state his or her case clearly under law, as we are providing for, in any subsequent court proceedings that might have a very serious implication for his or her livelihood.
The matters proposed to be included are essentially matters that would form part of the State's proof in a criminal trial or hearing. This can be challenged by the defence and publicans or others in the usual way at a trial. That is already in place and it is applicable here. The Deputy suggests that by not including this the legislation could be unconstitutional. Constitutionally any person or publican who feels he or she has been wronged in terms of the immediate closure order that was presented, has a right to make that case. I misspoke earlier when I said he or she has a right of appeal. I meant he or she has an absolute right to raise any of the issues that have been listed by Deputy Howlin in his amendment. To set a precedent whereby we would outline and list the issues, while accepting that the Deputy has included "any other questions" is a matter for criminal procedure and evidence. I do not believe such a provision belongs in this particular section. I understand the point the Deputy makes in respect of the person who feels he or she was unfairly treated in the closure of his or premises and that decision being used in a subsequent hearing. Again, the powers we are giving to An Garda Síochána will be used only where, despite previous engagement, a serious breach has occurred which would warrant closure of the premises for the remainder of the day. A person will always have an opportunity later to raise the issues listed by the Deputy.
This is a matter of rights. The Minister would have to accept that without specifically stating that these are contestable facts, the overwhelming balance falls to the member of An Garda Síochána who can point to an uncontested emergency closure order against the premises. If we do not state it in the law that because it is an emergency closure order, the facts of the case have never been independently evaluated, that can be looked at subsequently.
I think it is required. I am not going to make any further progress with the Minister in this regard so I will press the amendment.
On a point of order, I raised earlier the issue of the additional time promised by the Government and I saw the Chief Whip hovering around. The Ceann Comhairle himself suggested that we were going to get additional time to deal with our and Deputy McNamara's amendments. If there is a vote called now, the time will have expired.
Our proposal is to remove section 13 from the Bill in its entirety. Section 13 gives the power to the Minister to make regulations that carry criminal sanctions without reference to the Dáil. That is quite a blank cheque to give the Minister and we are not prepared to do it. We do not think the House should be prepared to do it either. No doubt the Minister will argue that no regulation can be made which is outside the framework of the Constitution or within a timeframe other than that within which the Bill operates with the sunset clause. Those are secondary points. The fundamental point is that the Minister should not have the power to make regulations that carry criminal sanctions without the approval of the Dáil, without coming back to the Dáil and debating, discussing and voting on those matters.
On the overall context of the Bill, we are strongly opposed to that minority of publicans and restaurant owners who would flout the regulations in the weeks ahead. That is a disservice to society and to their own workers. We have no truck with that type of approach whatsoever. That does not mean that the Minister should have a blank cheque or carte blanche. These are emergency powers and the idea that the Minister could make regulations that carry criminal sanction without the approval of the House of the specific regulation is not something we are prepared to allow or that the House should agree to.
I believe our opposition to the section is the most important proposal today, precisely because the section gives a blank cheque and carte blancheto the Minister, under the emergency amendment of the Health Act that was passed earlier this year, to make regulations which potentially go way beyond the specific scope of this Bill. We would be happy to let this Bill go through because we accept that it is necessary to have powers to prevent reckless behaviour in the context of licensed premises or places selling intoxicating liquor, which is a real threat to public health. However, the Government and everybody else accept that these are draconian powers. They are not powers that under normal circumstances one would wish the State or the Garda to have. All of us have accepted that this is an exceptional situation and have allowed power to be given to the State to do things that normally from a civil liberties point of view we would be very concerned about. We can accept that. This is exceptional and those powers need to be available, when they are clearly specified in respect of what the offence is and what the penalty is.
This section means that the Minister for Health can prescribe as a criminal offence things that are not in this Bill or that are not written down anywhere else so far. That is a power too far. It is worrying. Ministers can make mistakes and wrong moves. There needs to be oversight of decisions that the Minister may make in future which we might want to question in here. We will not have the right to question or challenge them. The Minister will have a blank cheque for things that are not to do with the stated intention of this Bill or that the Government may not even have considered at this moment. That is more than unusual. For that reason, we appeal to the Government to remove this section. We would then be happy to let the Bill go through. This section should come out. It is a blank cheque and no Government or Minister should be given a blank cheque about things they could do in the future that we may not even have thought of or considered.
I think the Deputy may have misunderstood the intention of the section. This section is essentially providing for the power that will prescribe the regulations that will apply to this particular Bill. As it currently stands, this does not allow myself as Minister for Justice and Equality or the Minister for Health to do anything new or for the Minister for Health in particular to do anything new. Under the recently enacted section 31A of the Health Act 1947, the Minister for Health already has an ability to make Covid regulations and can specify which of those regulations have penal provisions and which ones do not. It is an offence under this particular Act where somebody is in breach of that. That is already in place. What section 13 of the present Bill simply does is identify the particular penal provisions that are relevant for this. When this legislation potentially passes through the Houses, if it is approved and signed into law, the Minister for Health having engaged with myself and any other relevant Department will identify as we have already done the specific penal regulations that will be relevant to this Bill so that when members of An Garda Síochána walk into a premises they know the exact regulations that need to be adhered to and, if those are not adhered to, the gardaí can move to issue a direction to enforce it that a pub is closed immediately or that further steps are taken at a later stage.
If we removed this section from the Bill, it would become unworkable as the penal regulations required for gardaí enforcement would not be prescribed. The Deputy sees this as an important amendment to the Bill but if the section was removed, the Bill as a whole would not work. It is extremely important that section 13 is retained. It does not give any additional powers to the Minister for Health and they are already clearly enacted under section 31A of the Health Act 1947. This simply links the two laws and following enactment of this Bill, the Minister will sign an order very clearly stating which of those provisions relate to this.
As I mentioned, any new provisions that the Minister must sign into law must come before the Houses. There is an opportunity for this House and the Seanad to annul those within 21 days of them being enacted. It is a clear provision for Deputies.
This is fundamentally flawed and it is grotesque, unbelievable, bizarre and unprecedented, GUBU, territory. I support Deputies Boyd Barrett and Barry in their opposition to the section but it appears the Minister is not for turning. It is always the sledgehammer at a time when we are trying to bring the people with us. Ní neart go cur le chéile. The people have been with us but they have grown weary. We are putting through legislation to enable a provision that will probably be used where the Minister for Health may come up with whatever regulations he needs to really do as he likes. It is dangerous to leave the Minister with no accountability to the House on this. We have spoken about the sunset clause but much can happen before the sun goes down.
I will respond to the Minister. This section connects the provisions of this Bill to the extraordinary powers given in previous emergency Covid-19 legislation that we supported. It allows the Minister for Health to prescribe certain events and activities as offences carrying penal provisions. The problem is what has now changed. The enforcement powers that this Bill provides can now be used for regulations made under the Act, and we do not know what those could be.
There is a range of new enforcement powers which could be used to bring about regulations that the Minister may decide to introduce. That is a problem. Although I accept the point that there is a need to connect one Act to the other, the consequence is that what everybody has accepted are draconian measures, although necessary in a particular context, could be applied to other contexts. Those draconian enforcement powers could be applied to other actions, which is a problem. It is the reason we oppose the section.
The Deputy is correct in that there are regulations that are not specifically mentioned in the legislation. We are in very difficult and unusual times and things are changing, meaning new regulations must be made. We hope things will get better and that penal provisions can be removed. If we had to put every single proposed provision in legislation, it would mean that at every stage we would have to go through this type of process in order to introduce new legislation. This Bill enables me, as Minister and working with the Minister for Health and other relevant Ministers, to ensure any changes in regulations can be made without having to go through the legislative process. This applies not just where there may be new regulations but where we remove regulations specifically applying to this. I hope we can remove many penal provisions sooner rather than later. It is important to acknowledge we are in a very unusual position as changes occur quickly and we are trying to respond to a global health pandemic. In doing so sometimes decisions would have to be made quickly. If we had to pass legislation every time that is the case, we would be precluded from doing a lot. If we removed section 13 from the legislation, it would essentially reduce the Bill to being unworkable.
Cathal Berry, John Brady, James Browne, Martin Browne, Richard Bruton, Pat Buckley, Colm Burke, Peter Burke, Mary Butler, Thomas Byrne, Jackie Cahill, Holly Cairns, Dara Calleary, Ciarán Cannon, Joe Carey, Jennifer Carroll MacNeill, Matt Carthy, Jack Chambers, Sorca Clarke, Niall Collins, Rose Conway-Walsh, Patrick Costello, Simon Coveney, Barry Cowen, Michael Creed, Réada Cronin, Cathal Crowe, David Cullinane, Pa Daly, Cormac Devlin, Alan Dillon, Paul Donnelly, Stephen Donnelly, Francis Noel Duffy, Bernard Durkan, Dessie Ellis, Damien English, Mairead Farrell, Frank Feighan, Peter Fitzpatrick, Joe Flaherty, Charles Flanagan, Seán Fleming, Norma Foley, Kathleen Funchion, Gary Gannon, Thomas Gould, Brendan Griffin, Johnny Guirke, Simon Harris, Seán Haughey, Martin Heydon, Neasa Hourigan, Brendan Howlin, Heather Humphreys, Paul Kehoe, Alan Kelly, Martin Kenny, Claire Kerrane, John Lahart, James Lawless, Brian Leddin, Michael Lowry, Pádraig Mac Lochlainn, Marc MacSharry, Josepha Madigan, Catherine Martin, Steven Matthews, Charlie McConalogue, Helen McEntee, Joe McHugh, Denise Mitchell, Aindrias Moynihan, Imelda Munster, Jennifer Murnane O'Connor, Catherine Murphy, Eoghan Murphy, Verona Murphy, Johnny Mythen, Gerald Nash, Denis Naughten, Malcolm Noonan, Joe O'Brien, Cian O'Callaghan, Jim O'Callaghan, James O'Connor, Willie O'Dea, Kieran O'Donnell, Fergus O'Dowd, Roderic O'Gorman, Louise O'Reilly, Darren O'Rourke, Christopher O'Sullivan, Pádraig O'Sullivan, Eoin Ó Broin, Marc Ó Cathasaigh, Éamon Ó Cuív, Donnchadh Ó Laoghaire, Ruairi Ó Murchú, Aodhán Ó Ríordáin, Aengus Ó Snodaigh, Maurice Quinlivan, Anne Rabbitte, Neale Richmond, Michael Ring, Eamon Ryan, Patricia Ryan, Seán Sherlock, Róisín Shortall, Brendan Smith, Duncan Smith, Niamh Smyth, Ossian Smyth, Brian Stanley, David Stanton, Robert Troy, Pauline Tully, Mark Ward, Jennifer Whitmore, Violet Wynne.
Mick Barry, Richard Boyd Barrett, Seán Canney, Joan Collins, Michael Collins, Catherine Connolly, Marian Harkin, Danny Healy-Rae, Michael Healy-Rae, Mattie McGrath, Michael McNamara, Paul Murphy, Carol Nolan, Richard O'Donoghue, Thomas Pringle.