Thursday, 10 September 2020
Criminal Justice (Enforcement Powers) (Covid-19) Bill 2020: Committee and Remaining Stages
James Browne (Wexford, Fianna Fail)
I again welcome the opportunity to provide clarity on this matter. These amendments all propose to make a change to section 3 of the Bill. Amendment No. 2 in the names of Senators Bacik, Hoey, Moynihan, Sherlock and Wall proposes to delete the words: "whether in relation to a relevant provision or otherwise." from section 3(1)(a) of the Bill. Amendments Nos. 3 and 4, submitted by Senators Higgins, Ruane and Flynn, seek to delete the words "or otherwise" in line 14 of the Bill and substitute: "or in relation to such regulations that have been made under section 31A of the Act of 1947 previous to the date of the passing of this Act" and: "or in relation to provisions under section 31A of the Act of 1947", respectively.
Section 3, as the Minister, Deputy McEntee, outlined in her Second Stage speech, provides a power of entry for members of An Garda Síochána to "a relevant premises", as defined in the Bill, namely a licensed premises or a registered club, in order to check for compliance with the various Covid-19 regulations and to enforce those regulations where enforcement becomes necessary. The Garda is relying on various statutory and common law powers of entry to check for compliance with the regulations and to issue directions to comply. Section 3 of this Bill will establish a clear and specific power of entry for An Garda Síochána for these purposes. This will remove any ambiguity around the appropriate powers of entry to rely on. The new power of entry will apply to all of the Covid-19 related provisions which require a Garda power of entry to a licensed premises.
A suggestion was made in the Dáil that the provision could be used to provide a right of entry for gardaí to enter other types of premises for the purpose of enforcing penal provision of Covid-19 health regulations. Let me be unequivocally clear in stating that this is not what is provided for in section 3. The provision states that a member of An Garda Síochána may enter, without warrant, any relevant premises, which is limited to the types of premises that are provided under this Bill. Section 3(1)(a) seeks to ensure that a member of An Garda Síochána has the right of entry into a licensed premises or a club for the purpose of enforcing any penal provisions of the Covid-19 regulations, not simply those penal provisions that apply to licensed premises, and will be prescribed for the purposes of the Bill.
While the general purpose of this Bill is to provide enforcement mechanisms in respect of the penal Covid-19 regulations prescribed for the purposes of this Bill, the purpose of the "or otherwise" clause in section 3(1)(a) is to make clear that in a licensed premises a garda is not prevented from giving a direction to comply with any penal Covid-19 regulations, even if not prescribed specifically for a licensed premises. Therefore, the "or otherwise" clause provides clarification for An Garda Síochána, rather than ambiguity. This is not about giving gardaí any extra powers. Gardaí may already, under section 31A of the Health Act 1947, direct a person to comply with a penal Covid-19 regulation. We do not want to see an anomalous situation where a garda can, as now, direct a person on the street to comply with a travel restriction, for example, but will be powerless to give such a direction if the person entered a licensed premises because such a restriction would clearly not have been prescribed specifically in respect of a licensed premises.
On amendment No. 3, we can all agree that we do not know what impact Covid-19 will have in the coming weeks and months. There needs to be a degree of flexibility in this Bill to apply it to future regulations, if necessary. By including the words proposed in amendment No. 3, the application of these provisions would be limited to penal regulations enforced prior to the Bill being enacted only, which is not in keeping with the intention of the Bill.
Amendment No. 4, if accepted, would have the effect of significantly broadening the scope of the power of entry I have outlined above.At present, as I have explained, a member of An Garda Síochána may only enter a relevant premises without warrant for the purpose of giving a direction in respect of a penal regulation, as per section 31A(7) of the Health Act 1947. This amendment would mean that such entry could be for the purpose of any regulations made under section 31A of the Health Act, which would include non-penal provisions. I am of the view that this is unwarranted and would represent an unjustifiable extension of the powers given to An Garda Síochána. For these reasons, I ask the Senators not to press the amendments. I understand the amendments are well intended and I also understand where the Senators are coming from but, for the reasons I have outlined, I ask that the amendments not be pressed.
Policing in this country is governed by consent. We have, in effect, a community police force. It is unarmed. The purpose of this Bill is only to enforce the necessary regulations in respect of a very small minority of premises that fail to comply with them. One should remember the provisions apply only to licensed premises. It is appropriate that the Garda have the necessary powers, in the current emergency, to take the steps necessary to enforce all regulations.
Reference was made to resources. While this matter is not under my remit, I expect and hope that the necessary resources will be provided. I do not intend to get into a debate on gambling but it is proposed that I have specific delegated powers in this area. I am very much aware of the destructive nature of gambling, which is becoming more pervasive in society. I am happy to meet Senator McDowell at any time to discuss the serious issue of gambling.