Frank Feighan (Sligo-Leitrim, Fine Gael) | Oireachtas source

I thank the Acting Chairman. It is great to be back in the House and to address the Seanad in this august Chamber. I address the House in respect of the Health (Amendment) Bill 2020, which concluded its passage through the Dáil earlier today. I welcome the support received in that House for the core principle of the Bill, which is to protect and safeguard the people of Ireland from the spread of Covid-19. There was support expressed in the Dáil today for the main purpose of the Bill, but there were wide-ranging views on the way the Government has had to introduce it. It is not ideal that we are in a position where we must debate a Bill that has some potential serious impacts in the space of an afternoon. However, my Government colleagues have consistently advised Deputies and, indeed, all the people of Ireland that we are living in unprecedented times when unprecedented decisions must be made within very short periods of time. I extend my gratitude to those who attended the debate in convention centre today and to everyone in Leinster House. I thank everyone for engaging with the Government on this legislation even though we are operating in less than desirable circumstances.

As my colleague, the Minister for Health, Deputy Stephen Donnelly, stated in the Dáil this morning, the purpose of this Bill is not to penalise people. The Minister for Justice, Deputy McEntee, has also made this point. The Bill defines and narrows the existing enforcement powers that are already on the Statute Book. Operationally, the Garda will continue to engage, educate and encourage people when it comes to policing and monitoring compliance in respect of the Covid guidelines. It will only be as a last resort that the Garda will enforce.

Ireland's experience of this virus to date shows that the vast majority of people are following the public health measures, for which I applaud the nation. However, the highly contagious nature of the virus means that when we let our guard down for a short period, it spreads quickly, silently and sometimes with fatal consequences. Unfortunately, a number of people make a conscious decision to not follow the measures. Due to how easily the virus spreads, the actions of this group of people put at risk the sacrifices made by everyone else. When I say "everyone else", I refer to those of us who follow the guidelines when there is no penal sanction for non-compliance. We know that by making these sacrifices and following the recommendations, we are all helping each other to get the nation back to normality.

While solidarity and personal and collective responsibility are at the core of the national response to Covid-19, enforcement must also be available. Up until recently, the only enforcement power available, under the 1947 Health Act, has been what is called "a penal provision". This is a prosecution with a maximum penalty of up to €2,500 or six months in prison, or both, to be decided by the judge. As has been said in the House before, the "penal provision" has not been proportionate for most violations of the regulations but has been harsh which is why we have the legislation before us today. Rather than create new powers or penal provisions, the Government is attempting to revise, define and narrow the existing legal provisions so that the Garda and the people of Ireland have clarity on how they should behave during this pandemic. This legislation introduces tiered penalties or on-the-spot fines of up to €500. The exact amount of each measure is specified under regulations.For example, a fine regarding face coverings would no longer incur a penalty of up to €2,500 and-or six months in prison, but might, instead, incur a €50 on-the-spot fine. Ultimately, however, failure to pay the fine could be prosecuted, as per other fines in place. The Bill also redraws the existing penal provision, in that it creates lower levels of penalties for the first and second offences, and only allows the existing level of penalties for a third offence. In the case of dwelling events, the Bill only allows for the lowest level of penalty, which is for a first offence, for other measures.

If the Bill is passed, there would be five categories of enforcement. The non-penal category would apply to measures included in the regulations as not allowed, but which carry no penalty. For example, the restriction on who and how many people can attend a sports training session is a non-penal provision. The penal category will have three levels of penalty, in court, for first, second and third offences. This includes, for example, violation of measures by retail outlets. The relevant provision category allows for licensed premises to be shut for the day, or for longer in the case of further offences. The fixed charge notices category allows for on-the-spot fines and includes, for example, domestic travel, face coverings and relevant indoor and outdoor events. The fifth and last category, concerning a dwelling event, is specifically for large social gatherings in houses, and allows only for the first offence penalties of penal provisions.

In summary then, the Bill provides for penal provisions under the Act to be prescribed as fixed penalty provisions, meaning that persons alleged to have committed an offence under a fixed-penalty provision may pay a fixed penalty in lieu of prosecution. It provides that on prosecution, different levels of penalties may apply to first, second and third, and subsequent, offences under the Act. Finally, the Bill provides for provisions to be prescribed as dwelling event provisions, meaning that if a garda reasonably suspects a breach of such a provision, he or she may attend at the entrance to the private dwelling and direct persons to leave that private dwelling or the vicinity of that private dwelling.

I will go through the Bill section by section. Section 1 provides that the "Act of 1947" means the Health Act 1947. Section 2 provides for the insertion of a definition of "fixed penalty provision", "dwelling event provision" and "penal provision". Section 3 provides for the insertion of subsection 31A(6C) on fixed penalty provisions. Fixed penalty provisions allow for a fixed payment notice to be served on persons in respect of an alleged offence. The person may opt to pay a fixed fine within 28 days rather than face prosecution in court.

Subsection 31A(6C)(b) sets out the matters that should be taken into account when deciding to prescribe a penal provision to be a fixed penalty provision. These matters include the nature of the offence, how prescribing it would prevent the spread of Covid-19 and the impact prescribing it might have on the normal functioning of society. Subsection 6C(c) provides that the Minister may make regulations for the form of notice and the process to be followed, while subsection 6C(d) sets out that the Minister must consult with the Minister for Justice and Equality before prescribing a penal provision as a fixed penalty provision.

Subsection 6D amends section 31A to enable the Minister to prescribe penal provisions to be dwelling event provisions. Subsection 6D(b) sets out the matters that the Minister should take into account when prescribing a penal provision to be a dwelling event provision. These matters are similar to the matters relating to the fixed penalty provision but also include the risk of Covid-19 in indoor or confined areas. This makes sense because the alleged offence is occurring in a private dwelling, indoors. Again, as with the fixed penalty provision, subsection 6D(c) sets out that the Minister must consult with the Minister for Justice and Equality before making a decision.

Subsection 6E provides that regarding proceedings for an offence in respect of a dwelling event provision, the event organiser shall be assumed to be the occupier unless proved otherwise. This means that if an event happens in a private dwelling that is not allowed under the regulations, the occupier of the dwelling is assumed to be the organiser. The offence here is by the organiser.

The Bill also provides for a new subsection setting out tiered penalties. The current sanction is a fine of up to €2,500 and-or six months in prison. It is proposed to replace this one-level provision with a three-tiered provision based on the number of offences committed. This provision applies when someone charged with an offence ends up in court, and it is separate to the fixed penalty provision. If the matter ends up in court, there is then a reduced tariff for a first offence of a fine of no more than €1,000 and-or one month in prison, a tariff of €1,500 and-or three months in prison for a second offence and a tariff of €2,500 and-or six months in prison in respect of third and subsequent offences. I note here that in a situation where someone is given a fixed penalty notice and does not pay in 28 days, then it automatically becomes a court matter and these penalties would then come into play. The new subsection also provides for a judge to impose a sentence of up to €2,500 and-or six months in prison where there are aggravating circumstances. This means that if the judge feels that the offence is particularly serious, especially on public health grounds, then the judge can impose the highest tariff.

The Bill also provides in section 3(c) for the substitution of a new definition in section 31A(16) of "event organiser". For a private dwelling, an "event organiser" is "a person who arranges, organises or manages the event, or otherwise causes or permits the event to take place". In a place other than a private dwelling, the "event organiser" is a person who publicises, arranges, organises or manages, or receives some or all of any proceeds from the event. It also defines the terms "licence", "occupier" and "owner".

Section 4 of the Bill provides for fixed payment notices by the insertion of a new section 31C. Subsections 31C(1) and 31C(2) provide for a fixed payment notice to be served on persons in respect of an alleged offence. The person may opt to pay a fixed fine within 28 days rather than face prosecution in court. If a decision is made not to give a fixed payment notice, that does not prevent the initiation of a prosecution.

Section 5 of the Bill relates to the private dwelling provisions I discussed earlier. To reiterate, the Minister for Health can designate a provision in a regulation to be a penal provision and a dwelling event provision. If that happens, then this section of the Bill comes into play. It provides for additional powers for the Garda under the proposed subsection 31D(1), where if a garda suspects a person is loitering with intent to attend an event in a private dwelling "in contravention of a private dwelling provision", the garda may direct that person to leave the vicinity. Under the proposed subsection 31D(2), where a garda suspects "that an event in contravention of the private dwelling" provisions is under way in a private dwelling, the garda may direct the occupier of the private dwelling to require and cause the other persons to leave. The proposed subsections 31D(3)(a) and 31D(b) permit a garda to attend at the entrance to a dwelling and to request contact details for the occupier. Subsection 31D(4) provides that it is an offence, "without reasonable excuse, to fail to comply with a direction given by" a garda under this section and subsection 31D(5) sets out the penalties to apply. Those are the details of the Bill.

This Bill is all about enforcement. As the Minister for Health, Deputy Stephen Donnelly, and the Minister for Justice and Equality, Deputy McEntee, have stated on an ongoing basis, however, the members of An Garda Síochána will continue to engage, educate and encourage; they will only enforce as a last resort. People in Ireland are looking to the Government as leaders and to act appropriately, proportionately and fairly.Should the Bill be passed, it will not simply be a question of making a regulation and then handing out fixed penalty notices. The regulations will be considered carefully and drafted appropriately.

I would ask Senators to remember that the overwhelming objective here is to enhance compliance with public health guidance, and regulations, with these penalties as only one side of it. Any system of enforcement only works if people can see it being used appropriately, that the sanctions are proportionate and that it is aimed for the greater good. I can say that these are our aims. I commend the Bill to the House.