Thursday, 10 September 2020
Criminal Justice (Enforcement Powers) (Covid-19) Bill 2020: Committee and Remaining Stages
Barry Ward (Fine Gael)
I listened to the contribution of Senator Higgins and that of Senator Bacik when she moved the amendment. I entirely accept their legitimate concerns. I also watched the debate in the Dáil on the amendment brought forward by Senator Bacik's party colleague, Deputy Howlin. That debate was unfortunately hijacked by many others who had other agendas. The point the Deputy was making is sound and needs to be looked at.
Senator Bacik said that, when passed, this legislation will significantly expand the powers of An Garda Síochána. That is absolutely correct. There is no disputing that. It will significantly expand Garda members' entitlements to enter licensed premises to carry out inspections, observations and so on. I do not, however, agree on two other points. I do not agree that this particular paragraph of section 3(1) expands the powers beyond what is already in the rest of the Act because the Act as a whole seeks to empower An Garda Síochána to do things it might otherwise not be able to do, particularly under the Intoxicating Liquor Acts.
I also do not agree with the suggestion that it introduces ambiguity. I have complained for a number of years about the manner in which we manage legislation in the country. We do not consolidate it. This Bill refers to section 31A of the Health Act 1947, an amendment which was introduced in other legislation earlier this year. It can be argued that it is complicated and confusing to find the various regulations that are made but it is not ambiguous.
Senator Higgins made the point that she hopes this will only apply to the regulations already made. In passing the legislation, these Houses hand the Minister the power to make regulations. We devolve that power in a limited sense. It would not be reasonable to say this could only apply to regulations that have already been made. Part of the devolution of power from the Legislature to the Executive involves recognising that the Executive may make regulations in the future.For example, the regulations that have already been made under the Health Act, notwithstanding much of what has been said about them, do not introduce an ambiguity. It is fair, however, to say that it means this House cannot be certain what regulations will be made in the future. It may well be that Members think that is not an acceptable concession to make. I do not agree with that but it does not introduce ambiguity in and of itself.
I will say two things about what section 3(1)(a) does in the phrase "or otherwise", which is a broad phrase that introduces, as Senator Bacik has said, a broad, widened and expanded power to the Garda. It definitely does so but that is not necessarily a bad thing and I say that as somebody who appeared as defence counsel for a long time and who still does so in cases. I have a healthy scepticism about the expansion of Garda powers and I can see how sometimes quite old Garda powers are used in a particular way. I would say two things about how this particular paragraph of section 3(1)(a) applies.
First, we must remember that it only applies to licensed premises. A discussion has been had in this House already today about dwellings and other things. I appreciate what Senator Gavan said on Second Stage when he talked about the anti-State movement and that kind of dog-whistle politics we saw in some of the debate on this legislation already. I give credit to his colleague, Deputy Martin Kenny, who acknowledged that. In response to Deputy Howlin's amendment in the Dáil, Deputy Martin Kenny acknowledged that the matter of dwellings is not an issue but many people have spoken about it, and while they may have legitimate concerns among themselves, those concerns are not borne out by the law. The point is that this is restricted to licensed premises. I strongly feel that licensed premises are already highly regulated environments, appropriately so, and any licensed premises owner or operator should not be afraid of the monitoring of that operation by An Garda Síochána. It is entirely appropriate that it would have the powers to go in, inspect and observe. That is doubled in the context of the Covid-19 crisis. This legislation creates an environment, which definitely gives the Garda expanded powers to go in and look at that but in that context, under the provisions of section 31A(7).
Second, the language used in section 31A(7) supports what the Minister, Deputy McEntee, said at the beginning of this debate. In the last line of the paragraph it says the Garda: "may direct the person to take such steps as the member considers necessary to comply with the provision". That is much more the tenor of what is being provided in this Bill. It is policing by consent. Do we have an absolute guarantee that a garda will not act beyond that? No we do not but we have never had such a guarantee and the Garda operates separately from this Legislature insofar as it operates with the powers that are given to it by legislation. If it does so capriciously or in excess of those powers, there are other bodies that hold it to account for that. We must assume - and the evidence bears this out in the powers it has been given under emergency legislation this year and since this Seanad was formed - that the Garda will use them carefully, cautiously and with restraint. The Minister, Deputy McEntee, said this afternoon that every opportunity would be given to people to first comply with the regulations and then if they fail or refuse to do so, the consequences would flow from that. The language of section 31A(7) bears that out. The first action of the garda is to: "direct the person who takes such steps as the member considers necessary to comply with the provision." That is the tone of this legislation.
I understand the concerns that are being expressed by the movers of these amendments and I am not saying those concerns are invalid but in the context of emergency legislation that is designed to give enhanced and expanded powers to the Garda and is the subject of a sunset clause for its renewal on 9 November, it is acceptable to expand these powers in that context. I fear the removal of the "or otherwise" provision would restrict the Garda. If under section 3(1)(a), for example, a garda were to go into a premises after the fact in any prosecution, he or she would then be limited to only making a direction under section 31A(7). That is an unnecessary fettering of what should be an action driven by public health concerns to safeguard everybody in the community.This is in the context of what Senator Higgins said in her contribution about the strength of public compliance with these regulations in Ireland and she is right. Enormous praise should be heaped upon the Irish people for the manner in which they have reacted responsibly and with care for their fellow citizens to this crisis. This is not aimed at those people, however. It is aimed at the people who operate licensed premises inappropriately and unlawfully and who do so with impunity. This legislation is designed to give the Garda and the State powers to deal with those people through prosecution, only and if it is deemed necessary because they have refused or failed to comply with the regulations. While I might well have a reservation about a phrase such as this in other legislation in the ordinary course, looking at it through the prism of the crisis I feel it is proportionate and warranted.