Seanad debates

Thursday, 10 September 2020

Criminal Justice (Enforcement Powers) (Covid-19) Bill 2020: Committee and Remaining Stages

 

10:30 am

Photo of Ivana BacikIvana Bacik (Labour)

I move amendment No. 2:

In page 5, to delete line 14.

I welcome the Minister of State to the House and I thank the Minister, Deputy McEntee, for the full response in her closing remarks to some of the points I had raised in my Second Stage speech.

The issue on which I spoke most on Second Stage was the lack of clarity on the distinction between penal provisions and guidelines that are not enforceable through the criminal law. Amendment No. 2 speaks to that point. It seeks to amend section 3, specifically section 3(1)(a), to narrow and make clearer the power that is being provided to An Garda Síochána. It is an extensive power already in that it is a power to enter a relevant premises, which is, of course, a licensed premises under section 2, without warrant, to inspect, examine, observe and make inquiries and so on for the purposes of giving certain directions. The Bill, as drafted, references the purpose of giving a direction under section 31A(7) of the Act of 1947, which is the Health Act 1947, whether in relation to a relevant provision or otherwise. The amendment seeks to delete "whether in relation to a relevant provision or otherwise.", because section 31A(7) is already, in our view, broad enough to encompass all the necessary powers that the Garda should have.

My colleague, Deputy Howlin, put this point very strongly in the Dáil and I am conscious that there was extensive debate on this specific amendment in the Dáil, but its purpose is to be constructive and to provide greater clarity. We did support the Bill but we did so reluctantly, recognising it is necessary, as we did in respect of other emergency legislation. We think it is important when a Bill of this nature is providing additional Garda powers that we give it adequate scrutiny. We are not satisfied that there is a need for this very broadening provision through the use of the words "or otherwise" because this significantly expands the power under which a garda can enter a licensed premises. We do not believe this is necessary.

I read the Minister's response to Deputy Howlin in the Dáil. I note she said at a particular point in the debate that the reference to "or otherwise" is only with regard to section 31A(7) of the Health Act 1947. If that is the case, why include the words "or otherwise"? We are seeking clarification on that and to ensure we are not creating an over-reach in the policing powers provided. As I said in my Second Stage speech, this is an issue about which concern was expressed by a number of people and institutions giving evidence before the Special Committee on Covid-19 Response yesterday in the Dáil Chamber. I am conscious it is a real concern.

There is a particular concern with this legislation where we see section 1 defining the direction given under section 31A(7) of the Health Act 1947 in regard to a relevant provision. In section 31A, the section which we are seeking to amend, there is another definition of a direction which restates the definition in section 1 but adds to it the phrase, "whether in relation to a relevant provision or otherwise". We do not understand the need for this. If, as stated by the Minister in the Dáil, it is unnecessary because what the Government is seeking to do is give the power with regard to section 31A(7) of the Health Act 1947, why include "or otherwise"? We believe it is unnecessary. It is drafting that may cause difficulty because it appears to provide an over-reach in law.

I made the point on Second Stage that already we are seeking very significant powers provided, not just to the Garda but to the Minister for Health.We saw in SI 360 of 2020 extensive use of this power through the creation of 14 different guidelines, some of which are stated to be penal sanctions under section 31A, and some of which are not but which, as I said, were somewhat fudged in the sense that there was this reference to the bizarre entity of a civil offence which, of course, is not known to our law. In order to secure public buy-in, in order to ensure we continue with the sort of social solidarity we have seen and with high levels of public compliance and goodwill, as Senator Dooley has said, we need to ensure that we are acting with respect and trust and that we are neither antagonising nor undermining the spirit of solidarity. I do not see the use of the phrase "or otherwise" as being helpful in that regard.

We have seen immense sacrifice made by people across the country and yet we are seeing alarming rates of transmission rising, particularly in Dublin in recent days. That is a real concern. We all recognise the need for this sort of legislation in that context but we also need to ensure we have continued public goodwill and buy-in. Mixed messaging, confused messaging and overreach of criminal powers are not helpful in securing that sort of social solidarity. That is why I am pressing the amendment.

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