Friday, 4 June 2021
Health and Criminal Justice (Covid-19) (Amendment) Bill 2021: [Seanad Bill amended by the Dáil] Report and Final Stages
Michael McDowell (Independent)
No, that is not ratty. I just want the irony of what the Minister has come in here to complain about made very clear. We wanted to debate these issues in this House. We wanted more time to deal with it. We wanted to make the amendments the Minister wanted to make, but we were refused and told to push it through to one vote and that is it. That is what happened in this House and that is what happened eventually in Dáil Éireann.
The Minister said that he can understand those people who believe in no restraints at all and the consistency of their position that they just vote against any such regulations. He thinks they are somehow to be credited with some degree of rationality. However, he then accuses the people who opposed his Bill and who could not amend it because of the Order of Business and the guillotines the Government put down of being reckless for objecting to that procedure.
That raises the fundamental question as to how we have dealt with this Covid crisis. I believe we have dealt with it in a very inadequate way. I will not put it stronger than that; I could use different adjectives. When there was no Government, only an acting Government, before the Minister became Minister, we had an all-party Covid committee, chaired by Deputy McNamara. Its function as a Dáil committee was to look at what was being done. It was a semi-permanent oversight mechanism.
I have spoken to Deputy McNamara and other members of that committee on many occasions. The intended purpose of it was to seek accountability from NPHET and ask its representatives to justify the ban on intercounty travel, limits of 5 km rather than 20 km or whatever it might be. That committee was disbanded at the behest of the Government. We were told that instead of that we would have a different system and that all the sectoral committees would deal with the Covid crisis separately. The result is that there was effectively little or no oversight of what the regulations were achieving or whether they were in any respect excessive.
The Minister said two things. He can always annul a regulation. If we annul a regulation that has been made, we act recklessly because we scrap everything even though there may only be one paragraph in it to which we object. He cannot annul just one paragraph of a statutory instrument. Either the whole thing stands or it does not. The Houses of the Oireachtas are faced with the same binary choice. If a regulation is made requiring 10 km instead of 5 km, the only thing a Member who objects to 10 km rather than 5 km can do is to table a motion in either House of the Oireachtas to annul that statutory instrument.Then that Member would be accused of being reckless and told he or she was going to sweep away all protections everywhere in the country on the same basis. If the Minister is going to accuse people of being reckless, he should remember that if a statutory instrument is annulled, every bit of it goes up in smoke. The result would be that there will be no regulation whatsoever. That is the kind of binary choice that was put before people.
When the former Minister for Health came to the Seanad seeking the original amendments to the 1947 Act, I voted for them because I thought they were necessary. That was in March, April or whatever of last year. I hoped, as we all did at that time, that this would be a short-lived thing. The problem is now that far-reaching decisions are being made which affect the country at every level and the process has not been satisfactory. There should have been a special standing committee of the Houses of the Oireachtas set up to bring in representatives from NPHET and ask them hard questions about the advice it gives. It is all very well for the Minister to say that the Department receives advice from NPHET, brings it to the Government and Ministers challenge it and that a regulation can be annulled afterwards if that is what is desired. The fundamental point is, however, that the law-making process for the Irish people under our Constitution is the Houses of the Oireachtas and the Oireachtas acting collectively. Bringing the matter from NPHET via the Department to the Cabinet and then out in the form of regulations and then saying the Houses of the Oireachtas can annul the whole thing and that is its only choice is not proper consideration. There should have been and we could have had a different approach. We could have had a situation whereby regulations can come in and have a life of three weeks and then have to be debated and approved after line-by-line scrutiny where we go through it and justify the measures in it. That was possible but inconvenient. That is the problem we have had.
I am not here to speak on behalf of Deputies who voted against the entire Bill but I share a sense of a bit of repressed anger that they should be accused of being reckless when they were corralled into making a binary choice: do it my way or no way. Then they are told, since they are doing it no way, they are reckless. That is not reasonable.
The point the Minister made in respect of judicial review is fine, except that a judge cannot come to the view that he or she would not have made the particular regulation in the form it was made. In order to succeed in judicial review, one has to show the decision was irrational and no reasonable person in the Minister's position could have made the decision the Minister made. If it is 5 km or 20 km, 2 m or 1.5 m distance on a bus or a quarter or a half of public transport capacity, one cannot just say to the judge, "With the greatest of respect, that's excessive" and have the judge say that he or she agrees and will strike it down. Excessiveness is not the issue. It is whether any Minister could reasonably, exercising the powers he or she had, make the regulation in the form it is in. If one does not meet that test, one fails. A High Court judge could say the 20 km thing is a bit daft and he or she would have done 10 km, but go on to ask who he or she is to say the Minister got it madly wrong and no reasonable Minister could have said 20 km rather than 10 km or that all counties are the same for the purposes of restrictions.Those issues are ones where judicial review does not avail a person challenging the measure unless he or she proves that it was so lacking in proportionality or reasonable justification that no reasonable Minister could have exercised the power in the way the Minister did in making that statutory instrument. That is not much of a safeguard in terms of working out whether, for instance, the construction industry should have been exempt or whether social housing should have been allowed to go ahead but ordinary, non-social housing should have been halted. Those are the kinds of decision the High Court cannot really purport to make; they are decisions that were made at Cabinet and they require justification but they did not receive it. There was no debate of which I have heard - maybe it happened somewhere in these Houses and I was not aware of it - involving anybody saying there is a rational distinction to be made between allowing social housing projects to continue and stating that non-social housing projects must halt. There may be some science behind that. Perhaps Dr. Holohan has some view of a variant that flits here and there between different housing estates. I do not know whether that is the case. I am making the point that, at least, somebody should have been in a position to ask him or the Minister that question and to get a rational answer before that regulation was made.
I do not want to hog the time and I know other Senators wish to speak but I wish to say that we are now in a wholly artificial and unnecessary position of being up against a deadline and the Minister is now saying that if we do not do it his way, we are reckless. That is the gist of what he is saying in this House. I am going to vote against the Bill. I am not going to be reckless; I am going to vote against it as a protest. I know the Minister has the numbers, so I am aware of the consequences, but I am going to vote against it in its entirety because there has not been sufficient public oversight and Oireachtas oversight of the measures that have been taken and the mechanisms for oversight have been wholly overridden by decisions such as those to impose guillotines and the like.
I will give the Minister an example. He very interestingly told the House today about a situation in Limerick. It is a serious matter if there is an outbreak of 200 people in Limerick and if it is not the delta variant or whatever the Indian variant is now called, so be it. I would like to know some other facts about that. I would like to get in Dr. Holohan and ask him the very simple question of how many people who have been semi-vaccinated have succumbed in the past while. Is it mainly among people who have not been vaccinated at all? How many people who have been received two vaccine doses have become ill and how many of them have been hospitalised? I would love to know the answers to those questions but there is no means of finding them out in this House.