Ivana Bacik (Labour) | Oireachtas source

I thank my colleague, Senator Gavan, for giving way as I have to be at the meeting of the Committee on Procedure and Privileges.

I welcome the Minister, Deputy McEntee, to the House. I reiterate the concerns, as raised by others already, about the timeframe within which we debate this legislation. It is most unfortunate that we are taking all Stages of this important Bill just in one day. I made this point earlier on the Order of Business. It is also unfortunate that the debate coincides with our meeting of the Committee on Procedure and Privileges. I apologise in advance for having to leave the Chamber for that meeting straight after speaking. Deputy Howlin spoke on the Bill in the Dáil. On foot of what he said, Labour will not be opposing the Bill. However, we still have concerns about it and we have proposed two amendments to it arising from those concerns. Our concerns derive specifically from the fact that this is emergency legislation. It creates criminal sanction and imposes draconian measures. I listened with interest to Senator Ward, who spoke about something being either draconian or proportionate. Of course, a measure can be draconian and yet proportionate depending on the circumstances.

Over two days, on 19 and 20 March, emergency legislation was passed. Under the provisions of this legislation, a great number of statutory instruments have since been implemented. I refer to the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. Everybody accepts that this Act facilitated the imposition of draconian provisions via its amending of primary legislation, the Health Act 1947. We all accepted then, as we do now, that, in the context of the Covid-19 emergency, it is necessary to enact laws that would otherwise be deemed unacceptable. We all accept and support the need for sunset clauses in these laws. I appreciate that there is a sunset clause in this Bill which refers to the date of 9 November, which is the same sunset clause as in the earlier preservation and protection and other emergency measures Act.

Grave, justified concerns have been expressed about the extension of penal sanction to certain measures through the plethora of statutory instruments that have been signed by the Minister for Health. We saw recently SI 326 of 2020, which contained a number of different rules, some of which are not stated to be penal provisions and therefore do not carry a threat of penal sanction. Yesterday, at a meeting of the Special Committee on Covid-19 Response, this matter was raised by a number of entities, including the Irish Council for Civil Liberties, the Irish Human Rights and Equality Commission and my colleague from Trinity College, Dr. David Kenny. Concerns were expressed about the way in which public health guidelines have crossed into the criminal law domain by use of the mechanism provided initially in the Health Act 1947, which was enacted to deal with a different public health crisis, although it was in some ways similar. That public health crisis related to tuberculosis. Under the Act, we saw this crossover being permitted.

Where we all accept there is a public health emergency, we must also ensure there are democratic checks and balances on processes. SI 326 of 2020 is currently the subject of a motion before the Lower House, and it gave rise to concerns because of what looked like constructive ambiguities or fudging of what were guidelines and what were to be penal provisions. Some Ministers suggested that civil offences may be introduced, although we know that there is no such thing in Irish law. Something is either a penal provision or it is not.

The Labour Party accepts that there is a major need for public buy-in in respect of public health guidelines. We would go further and say that we promote the concept of policing by consent. We think, and most people would accept, that public health guidelines are far more effective when they have public buy-in and people comply out of goodwill and belief in efficacy or effectiveness. That is what guarantees a level of compliance that is far greater than anything that could be achieved through the use of blunt powers under the criminal law. I say this not to suggest all our public health guidelines should carry criminal sanction - far from it - but we must trust that there will be compliance even without penal sanction and that where penal sanction is attached, it must be imposed in a clear and consistent way. It should be proportionate, even when the powers proposed are draconian.

Under the powers provided to the Minister for Health, over 20 statutory instruments have been introduced. There is confusion regarding which of these provide for penal provisions and which do not. It is clear that some have been revoked, having carried penal sanction, while others have not. Deputy Howlin provided some examples arising from SI 326 of 2020. These are well known to people. Others are perhaps not so clear. People are generally aware that they must, subject to penal sanction, wear face coverings on public transport.There was less certainty about the rules around the green list and travelling and compliance with the restrictive movement requirements on return from abroad from countries that are not on the green list. These types of issues have created some level of confusion and, within the Garda, may make it harder to enforce laws and ensure there is compliance.

I looked at a Garda police union survey conducted by the Association of Garda Sergeants and Inspectors in June. The survey reported certain difficulties among gardaí on how to enforce certain measures. We need to ensure there is clarity. It is unfortunate that SI 326 of 2020 was introduced in a setting where perhaps there was confused messaging from Government around the measures to be introduced.

We should take heart from the fact that in general we have seen high levels of compliance, even where penal sanctions have not been attached to public health guidelines. Let us consider some of the figures around the checks that have been conducted by the Garda on licensed premises, which is the subject of this Bill. Since 3 July as part of Operation Navigation, the Garda has been checking licensed premises for adherence to previous regulations under SI 234 of 2020. Between 3 July and 23 August the Garda identified 165 potential breaches, but the force has reported a drop in breaches and a high level of compliance in general. Last week there were only 13 breaches, down from 21 the previous week. That bears out the point that, since lockdown rules were first announced internationally and here in Ireland, the experience everywhere, including here, has been that effective compliance in terms of dropping transmission rates is better achieved through soft mechanisms like consent, co-operation and the strong spirit of solidarity that we have seen. This includes solidarity with our front-line workers and the many people who have been bereaved through the awful incidence of Covid-19.

We support this Bill. We have put in amendments. We are keen to ensure that we give it proper and rigorous parliamentary scrutiny. However, we accept that in a time of Covid-19 crisis these measures are necessary.