Thursday, 11 February 2021
Health (Parliamentary Oversight of Certain Instruments Relating to Covid-19) Bill 2021: First Stage
That leave be granted to introduce a Bill entitled an Act to amend the Health Act 1947, and for that purpose to provide for parliamentary oversight of regulations made by the Minister for Health under section 31A of that Act and of orders made by that Minister under section 31B of that Act and to provide for related matters.
From the beginning of the Covid-19 pandemic in May last year, the Government introduced the first regulations to deal with the situation. These have largely been to impose restrictions on society to protect our healthcare service and save lives. Unlike other jurisdictions, we did not declare a state of emergency and we do not have much of the legal architecture required. Using the Health Act was the correct choice and compliance has largely been good. It is unlikely that more legal powers would have changed the situation much as public trust and buy-in is most desirable. Dr. Holohan himself spoke about the dangers of using the law in public health matters, given that it drives breaches underground and may create issues with people being honest with tracking and tracing workers.
While we may not have had a harsh legal regime compared with other jurisdictions, the regulations under the Health Act are unprecedented restrictions on people's liberties. It is only right and proper in a republic that Dáil Éireann is given a greater role in debating and scrutinising these restrictions to ensure that they are coherent, fair and logical. This has not always been the case. We remember the regulation that was introduced where receipts would have to be shown for exactly what people ate last summer. When we were debating criminalisation for violations of the regulations, we did not actually know what regulations were potentially going to be in place. The public and An Garda Síochána must be fully informed in advance of the content of the regulations but too often, they have not been. I have spoken to sergeants who have told me that they have received notice of the regulations late the night before they were supposed to introduce them on the streets and that is not acceptable.
I believe that this Bill will help with clarity and effective communication of the content of any proposed regulations. The House should not be placed in such a position again. The current Act requires that Parliament passes a motion annulling the regulations which, given that the Government commands a majority and controls the Order Paper, is unfair and burdensome. Under this Bill, regulations issued will be presumed annulled unless both Houses pass a motion affirming them. This would require the Executive to give the Dáil time to scrutinise and affirm any regulations or orders made. Accordingly, the separation of powers between Parliament and the Executive will, hopefully, be properly restored. This Bill reflects the situation that prevails in New Zealand. I thank Dr. David Kenny from Trinity College who gave evidence at the Special Committee on Covid-19 Response and recommended such measures. I also thank the Office of the Parliamentary Legal Advisers for the work and help that it provided in preparing the Bill.
The Bill that we are proposing does not oppose regulations. We all accept that in a public health emergency, there will be a need for regulations to make sure that public health restrictions and interventions are put in place and that there are penal provisions, enforcement and punitive measures to ensure compliance with, and enforcement of, those restrictions and public health measures.
The difficulty and challenge that the Opposition has had over recent months, as I have said directly to the Minister for Health and Taoiseach when we have debated these issues, is that, while the Opposition has been largely supportive of measures brought forward by Government because we all accept that everything has to be done to keep people safe, there is a lack of accountability, scrutiny and transparency with regard to these regulations. The Minister for Health, who brings forward the regulations, accepted that they give sweeping powers to the State and to him. They allow for the putting in place of all of the public health restrictions and have an impact on individuals, families, workers and businesses, and people accept the reasons. When there is no proper scrutiny and no opportunity in the House to debate the regulations, never mind to vote for them, there is a democratic deficit and a lack of accountability, scrutiny and transparency.
Many of these measures are difficult and challenging for people, so we need to ensure there is maximum confidence that we are getting it right. There have been examples in the past of where some of the regulations were not properly thought out and created problems for the Government with instilling confidence that they were the right measures. It would have been better and the Government would have benefited from having more democratic scrutiny. The Bill calls for that and for these regulations for the public health emergency to be brought before the House for approval.