Friday, 27 March 2020
An Bille um Bearta Éigeandála ar mhaithe le Leas an Phobail (Covid-19) 2020: Céim an Choiste agus na Céimeanna a bheidh Fágtha - Emergency Measures in the Public Interest (Covid-19) Bill 2020: Committee and Remaining Stages
I move amendment No. 1:
In page 6, lines 24 and 25, to delete “such day as the Minister for Housing, Planning and Local Government may by order appoint” and substitute “the 30th day of March 2020”.
I will not labour the point but this amendment seeks to give clarity that the commencement date is 30 March. I hope the Minister will accept that.
The proposed amendment relates to section 1(2)(a) of the Bill, which is the commencement provision for Part 3 of the Bill and relates to planning and building control matters. The amendment seeks to control the Bill so that rather than the emergency provision being commenced by order of the Minister at an appropriate and effective time when it is needed, the emergency planning provision would instead lose this flexibility and it would automatically commence this Monday, 30 March 2020. I ask the Senator to consider that this proposal and this date could be premature as our building and planning control systems are still functioning and carrying out their statutory duties, as they will be on Monday.This is because our building and planning control systems are still functioning and carrying out their statutory duties, as they will be on Monday. This is despite Covid-19-related work practices, including social distancing, naturally having an effect on local authority working arrangements. The proposed amendments would have the unintended effect of undermining the currently functioning operations of planning and building control authorities throughout the country by activating an emergency provision before it is necessary.
While I thank Senator Clifford-Lee for putting forward the amendment and I entirely understand her reason for putting it forward, I am appealing to her to defer the amendment and not to press it because while it is conceivable that at a point in time this provision will need to be triggered and we will need to change the operation of how our building and housing control services work, at this point it is not necessary to do so on Monday. The flexibility included in the current draft gives the Government the ability to make the decision at an appropriate time. Our current judgment is that time will not be on Monday.
I move amendment No. 5:
In page 7, line 32, to delete “Health, and” and substitute the following:“Health,(b) subject to a vote of approval by both Houses of the Oireachtas, and”.
I am keen to put our concerns relating to flexibility on the record of the House. Perhaps the Minister will explain if he going to take this.
I can tell the Senator that during normal times this is exactly the kind of provision that should be contained in legislation. I will draw an analogy to the rainy day fund, which is meant for use at times of great risk. The operation of the rainy day fund has the kind of steps and checks built in that Senator Clifford-Lee is proposing. What makes the times we are in so different is that it is entirely possible that a decision might be needed to change the guidance we are giving to various Departments and local authorities. We may need to make it quickly at a point when it is simply not possible to trigger sittings of the Houses of the Oireachtas, let alone gain their consent.
If this were not an emergency, it is likely that what Senator Clifford-Lee is looking for would already be contained in the legislation. Given the exceptional circumstance that we find ourselves in, however, it will be a decision made by the Minister for Housing, Planning and Local Government in consultation with the Minister for Health and the Minister for Public Expenditure and Reform. This is emergency legislation and it is due to lapse. I do not believe it would become the norm for these kinds of powers to be triggered in a way that did not require the consent of the Seanad and Dáil. For these reasons I appeal to the Senator to consider not pressing the amendment with the expectation that something like this would be contained in other legislation that we will see in future.
It is a draconian measure, as the Minister has acknowledged. I know we are in an emergency situation but as we approach the three-month lapsing period I imagine we would have sufficient notice to facilitate both Houses being recalled at short notice to do the necessary work. I would be apprehensive about letting something like this go out of the legislation. I understand the time pressure we are under today and the urgency of this legislation, but to give such powers solely to the Executive is concerning. I call on the Minister to reconsider it.
The Seanad is asked that the Bill stay as it is because of the speed at which it may be necessary to change public health guidance. It is entirely feasible that a decision could be taken in a morning, for example, that needs to be implemented that afternoon. This is why authority in this resides within the Executive. I emphasise again to Senator Clifford-Lee that I believe it is incredibly unlikely that this would set any kind of a precedent for use in legislation at a normal time. Even during our economic crisis all emergency legislation in that period required either consultation with the Dáil and the Seanad, or required engagement with both Houses. An example is the FEMPI legislation, whereby there was a requirement each year to lay a formal report with regard to where we stood, and if any change needed to be made with that legislation it had to be done through the Houses of the Oireachtas. If legislation crafted during an economic emergency required the role of the Oireachtas, the only reason it is different here is because this is a public health emergency in which a decision could be taken that requires action within hours. That is the only reason the legislation is drafted as it is.
I appreciate the Minister's explanation on that. I hope the Executive would act in good faith and only use the legislation in extreme emergencies, as the Minister has outlined, where a decision needs to be made in a matter of hours, not days. On that basis I withdraw the amendment.
I move amendment No. 6:
In page 8, to delete lines 3 to 6 and substitute the following:“(i) the nature and potential impact of Covid-19 on individuals, society and the State,Amendments Nos. 6 and 7 are, effectively, two alternate proposals. I note that certain other provisions in the Bill have wider descriptions in how they might be extended, whereas the description around the extension for the stay on evictions, for example, is a lot narrower. For the other areas there is quite a number of iterations and explanations of the public health emergency and the form it might take, which would allow for extension as necessary. I concur, of course, with Senator Clifford-Lee that, whenever possible, we want this to be in public consultation with the Legislature, which is important.
(ii) the capacity of the State to respond to the risk to public health,
(iii) the need to restrict the movement of persons in order to prevent the spread of the disease among the population, the making of such order is in the public interest,
(iv) the policies and objectives of the Government to protect the health and welfare of members of the public, and
(v) the role of adequate housing in protecting public safety,”.
On the core issue of the emergency period and the measures for safety that are taken under that time, I am concerned that the framing in the Bill is quite narrow. The framing is specifically on the threat to public health as related to Covid-19, it is contiguous to the Covid-19 disease and not to the after effects or consequences, and on the need to restrict movements of persons. Those are the narrow bases. The Minister has heard articulated very well on the Order of Business in the Seanad and in Dáil Éireann that we were already facing a crisis in housing. There are many public health emergency consequences that will flow from this crisis that may affect a person's ability to pay, a person's ability to respond to an eviction order, and whether or not persons can find suitable or other alternative housing within a period of time. I am concerned about the framing of this. Consider the rationale in a stay of eviction, similar to the rationale in the stay of a rent freeze, both of which were pushed for as measures for the common good in the past. If, however, we have an extraordinarily narrow definition of those, and which is too narrow in this case, I am concerned that the common good that may be served after a period of time when contiguation is not explicitly a risk but where persons may have lost income, lost livelihoods, have other underlying conditions, have other health concerns, and do not have anywhere to go to. I am worried that the Minister might not be giving enough flexibility to allow, for example, an extension of a stay on evictions to cover those related public health and common good concerns.
When we come out of this, there will be other very serious consequences. We certainly do not want to reach a point where we see large-scale evictions or a number of stayed evictions all being enacted at the same time creating a different and related kind of health crisis.
That is the spirit of amendments Nos. 6 and 7. I have tried, in the case of amendment No. 6, to echo the language that we have elsewhere in the Bill. If we are providing for all of these kinds of criteria elsewhere in the Bill, why make it so narrow when it is the bit that protects vulnerable citizens and protects people from evictions? Why is that a harder bar than those applying to some of the other protections?
Amendment No. 8 is to insert these other issues which are recognised as concerns elsewhere in the Bill, specifically, the policies and objectives of the Government to protect the health and welfare of members of the public, and the role of adequate housing in protecting public safety. Both of those are good reasons when the Minister may need to extend a protection against eviction or extend a rent freeze. That is my concern. That is the basis for these amendments. I hope the Minister can address it.
Lastly, I refer to the role of adequate housing in promoting public safety. I have mentioned that direct provision is not adequate housing in this time in terms of public safety and well-being, not only of the individuals in direct provision, whether or not those with symptoms are isolated. Simply in terms of congested dwelling, it raises safety concerns. I note that as part of a public safety concern.
It is the first time I have had the pleasure of an exchange with the Minister in the Chamber, unfortunately, under these circumstances.
My amendment No. 7 is similar to Senator Higgins's amendment No. 6. I welcome the Bill and the provisions relating to housing which implement a ban on evictions and a rent freeze for the period of the Covid-19 emergency. This will initially be a three-month period that can be extended by the Government under section 4. However, I am concerned about the criteria that will be used to decide whether such an extension is in the public interest.
While I recognise this is emergency legislation in nature and focused on Covid-19, it cannot be ignored that it is being implemented in the context of an extreme housing crisis. The Government should be looking to use and extend this power to provide relief to renters and families. In light of the amendment passed in the Dáil yesterday, it now also includes local authority tenants, Traveller communities and approved housing body dwellings which encompass some of the most vulnerable in the State.
It is in the public interest to keep people in their homes during and following a public health crisis and to prevent greater homelessness where people are at the greatest risk of spreading the virus. However, this section only lists the nature of the virus itself and the need to prevent the spread of the disease as criteria for the extension. It includes no recognition of the wider social impact of an eviction and the disproportionate damage that would do to the public good and public safety during and following the current crisis. This is why I am tabling amendment No. 7, which contains the vital recognition on top of the Government's own criteria. This amendment is also needed because this section is not aligned with other provisions in the Bill such as the extensions to the Mental Health Act which are extended to November whereas these provisions for the vulnerable in the housing market are only in place for three months with limited opportunity to extend.
Moreover, the criteria for time period extension for planning applications under section 9 and the provisions on redundancy in section 27 are broad, comprehensive, specific to the policy issues at play in those sections and include an assessment of the economic impact of Covid-19 but when it comes to preventing evictions, rent increases and homelessness for our citizens, the Government is not including the full range of factors and should determine such a decision in the legislation.There has been no provision so far with regard to renters who need to access rent allowance. If this is not introduced in the next week or so, this provision in terms of strengthening the conditions for eviction will be very much needed because people will go into rent arrears if they cannot access rent allowance very quickly. That is another provision that needs to be looked at. Hopefully, the Minister can speak to the amendment and with regard to access to rent allowance.
I thank Senators Higgins and Ruane for the amendments they put forward and offer my condolences to Senator Ruane on the loss of a member of her family. At times like this, we all feel loss in terms of being able to be with our families in different ways due to this emergency. That is a factor in why it is so vital that we have measures in place to address the needs of those in different forms of accommodation and housing. To respond to the different issues raised by both Senators, the reason the timing in this Bill is different versus other Parts of the Bill is because of the severity of the advice we have received from the Attorney General. I believe that if I was to be in front of the Seanad this afternoon and proposed the implementation of these measures regarding evictions and rent increases that went on for quite a period, Senators would be asking me the understandable question as to why this was different to the stance taken by the Government on these issues for a number of years. The reason for that is because the continued advice we receive from the Attorney General is that the balance between the common good and the public good and the role of property rights and private property is a very demanding one. The clear advice we have received from the Attorney General is that the only rationale we can use for the suspension of evictions and rent increases during the period is a public health emergency. That is the reason the timing with regard to this is different to other parts of the legislation and why the criterion is so clear, that is, that it must be linked to a public health emergency as opposed to the grave economic or social challenges touched on by the two Senators a moment ago.
I will address an issue raised by Senator Higgins. It is very important that even as we are grappling with the difficulties of today, we find time and space to think through what would be the difficulties for our society post Covid-19 because we will cage this virus and find ways of containing it and restoring our country to public health but when we do that, it will be the case that there will be consequences from this emergency that will spill over into what I hope will be a period of resumed public health and we will need to think anew about how we deal with those potentially very severe difficulties. The Government or the next Government will do this but to go back to the core point raised by both Senators, namely, the reason why we have such a definitive link up between the suspension of evictions and rent increases for a period of time and a public health emergency is because that is the very clear advice we have received from the Attorney General and we cannot broaden it beyond a definition of an emergency, which is a public health one.
I thank the Minister for his response. I know he addressed similar issues in the Dáil. He spoke about when we emerge from this. It is important that when we do, we reflect in terms of what we have just heard about the idea of anything being balanced against the common good - the common good to which everybody, including responsible business, is stepping up.We have seen the businesses that have put the welfare of their community, staff, society and public health ahead of profit. We have seen those who have done that, and we have seen those that have not made that choice. The common good is our remit, effectively, as representatives of the public. We are elected by the public for the public good. The social, public common good is our core responsibility but I recognise business and property within that also have a role within society. I note simply that if it is the advice of the Attorney General that the common good needs to be balanced and that we are not able to address the very serious health-related and social good-related consequences that need to be addressed following Covid-19, such as the health emergency and housing emergency we had previously, as well as the social cohesion issues that arise from a fractured society where people do not have the basics of shelter or food, then that will need to be addressed in a constitutional referendum in the future or we will have to challenge it at the highest level through the courts. We need to have law, including constitutional law that can fully serve the common good.
At a European level we have seen state aid rules put aside and rightly so. We have seen a renewed focus on public services. We cannot have laws with, for example, the ratchet clause, that make it impossible for public services to be fully delivered and for states to respond through public services as they need. Again, it is just a useful balance and a reminder when we discuss these issues and when we plan for the future. The Minister, Deputy Donohoe, has read books and discussed the role of the State. We have seen that it is the public delivery of public services that has been the core front line of response to this crisis across the board. It may be that services will need to be delivered nationally again such as public housing and public transport. If those are areas that we need to take within our own control as states and on a European basis so that we can ensure that they function for the good of citizens, then that is what we must do. That will be part of the architecture of our future response also. I understand the advice the Minister has received and I think it is disappointing. I hope he understands too that things in that regard will need to change in the medium term.
I want to ask the Minister about Government commitments on the capital and revenue side and contributions being made to the not-for-profit voluntary housing sector. Will they continue during this crisis because they obviously play an important and growing role in the provision of social and affordable housing to citizens? As much as we can, we must try to continue to address this issue. I say that bearing in mind that it would seem we will have a freeze on planning if the situation worsens.
I also want to ask the Minister about capital funding for approved housing body projects that are ready to go. What is our forward planning policy on social housing for the coming months? We do not know for how long the Minister will continue in a caretaker role.
I ask the Minister to bear with me, as I want to make sure I understand correctly what is proposed.We talk about having the provisions in for public health and that they are the only provisions we can use at this time for balancing this out against property rights over a period. I am struggling to understand when a matter is public health and when it is not. If we are to look at what public health means, it goes beyond just the spread of this specific disease. Public health is a much wider point and feeds so much more into the common good that is being defined within this legislation. It is a misuse of the term “public health”. It is not only public health when every social class of society is being impacted. After this, there will still be a public health crisis but it will be among those who are more vulnerable and who have not been able to bounce back after a period of economic collapse, poor health and evictions.
How does the Attorney General define public health in this instance? It is only being used regarding a pandemic and in terms of balancing this off against property rights and how long we can actually ban evictions for. Is the common good and public health only a thing when it is impacting every single person? Is it then of lesser value when it is impacting large communities, minorities and marginalised groups because their public health and the common good for them also should matter post what is laid out in the legislation?
I thank Senators Higgins, Mulherin and Ruane for their questions.
We are going to have to look at what our economic and social architecture is going to be after Covid-19. While we will go back to a normal, that normal will not be the one we have just left. That is certain. There are going to be big questions that we will have to answer regarding the role of the State and the commitments that citizens have. Those questions will not only be on a national level but at a European and global level. While this is straying ever so slightly beyond the terms of this section, anybody of the view that we are going to go back to something similar to what we have just left is underestimating the effect of Covid-19 on public health.
On Senator Mulherin’s points, I have made no change to the funding available to approved housing bodies. I am very much hoping that I will not have to. It is incredibly important that, even as we are battling with a health emergency of this scale, we can still stand by the commitments we have given to citizens on the provision of housing and accommodation. One of my personal lessons from the period between 2008 and 2012 is that when one makes decisions that cut back on expenditure in those areas, one just defers greater social need into the future. I am going to do all I can to avoid all that happening in these circumstances. I cannot guarantee that all funding, as is currently made available to everybody, will stay the same indefinitely.
On Senator Mulherin’s second point on capital expenditure, I want to do all I can to preserve levels of capital expenditure that we have particularly in housing. We are going to need to rebuild our economy quickly. We are already well aware of the housing needs that we have. If we begin to say we are going to cut that expenditure now, what will certainly happen is that this need will grow in the future. I am very much hoping that we can avoid having to make those kinds of decisions.
On Senator Ruane’s points, the advice from the Attorney General on this issue is that it is a public health challenge that is of an extreme nature.It appears that a crisis that is, in fact, an emergency is required to trigger the ability to suspend practices such as the collection of rent and eviction. This relates to the point made by Senator Higgins, that is, that the balancing of private rights and the public interest is always worthy of debate and evaluation. The advice we have received is that we have to have a genuine emergency that affects all and basic abilities, such as the ability to congregate, to allow the provisions of this Bill to be triggered.
I am very much aware of the point the Senator made in concluding. What she referred to is probably the reason I am recommending to the Seanad this afternoon an income subsidy scheme that is simply without precedent in the history of our country. I am very much aware that those who are at risk of income loss and employment loss, and those who may already have suffered these because this problem arose so quickly, are those citizens whose terms of work may be less settled than those of others and whose average incomes may be lower than those of others. That is why the latter part of this Bill contains a provision for an income support scheme that has no precedent.
I move amendment No. 7:
In page 8, between lines 6 and 7, to insert the following: "(iv) the nature and potential impact of Covid-19 on individuals, society and the State,
(v) the capacity of the State to respond to the risk to public health posed by the spread of Covid-19,
(vi) the policies and objectives of the Government to protect the health and welfare of members of the public,
(vii) the need to mitigate the social and economic effects of the spread of Covid-19,
(viii) the policies and objectives of the Government to ensure the provision of adequate housing and to reduce homelessness, in the interest of the common good,".
I move amendment No. 8:
In page 8, between lines 6 and 7, to insert the following: "(iv) the policies and objectives of the Government to protect the health and welfare of members of the public, and
(v) the role of adequate housing in protecting public safety,".
I move amendment No. 10:
In page 8, to delete lines 16 to 18.
This legislation will allow people who may have been served a notice to quit during the Covid-19 emergency period to remain in their homes for the duration of this public health crisis, which is welcome. Within these provisions, there is explicit recognition that evictions come with very serious negative social impacts and should be prevented, where possible, particularly at a time of crisis. However, eviction will still come with massive social and economic costs once the crisis is over. This Bill explicitly excludes people who are able to remain in their home longer due to the eviction moratorium from benefiting from the Part 4 tenancy protections that build up the longer one lives in a property. The Part 4 tenancy protections provide security of tenure to vulnerable renters in a volatile market. They prevent unfair evictions and allow people to remain in their homes for a set longer period, allowing them to plan their futures and those of their families within their communities. It is just not fair that these people will specifically have time spent living in their homes due to the Covid-19 emergency period discounted in calculating their entitlement to Part 4 tenancy protections. I urge the Minister to reconsider these provisions and accept my amendments.
I want to address amendment No. 22. I welcome the Minister. Sinn Féin tabled this amendment yesterday but in the meantime, an amendment from our colleagues in People Before Profit was passed, which we supported. It was amendment No. 7. Does that amendment have legal effect to protect people on licence? If it does, then we are happy to not pursue amendment No. 22.
I thank Senators Ruane and Gavan. I will deal with the amendments first before I respond to Senator Gavan's question. I propose not to accept the amendments tabled. The reason is that section 5(1) provides that a landlord cannot serve a notice of termination during the Covid-19 emergency for any reason. The limitation on the constitutionally protected property rights of landlords will only be in place during the extraordinary circumstances of the Covid-19 pandemic. The Bill provides for the Covid-19 emergency period to be of three months' duration to begin with. This period can be extended by Government order if necessary. We aim to restrict the movement of people to stall the transmission of a disease. However, it is provided that a tenant cannot accrue security of tenure rights under Part 4 of the Residential Tenancies Act due simply to the passage of time during the emergency period. The Government considered it fair and necessary that any landlord who is delayed by Covid-19 in carrying out a legal eviction should be in a position to carry out the eviction after the Covid-19 emergency on the same basis as before. There will be no further need to restrict the movement of people on health grounds. If someone has been in a tenancy for less than six months before the Covid-19 emergency and the landlord had intended to terminate the tenancy at that time, and still intends to terminate after the Covid-19 emergency, the intervening emergency period should not count in the six-month tenancy required for a tenant to accrue Part 4 security of tenure rights. I believe in the circumstances that this is a reasonable balance and they are the reasons that I cannot accept the group of amendments from Senators Ruane and Gavan.
To answer Senator Gavan's question, the Department of Housing, Planning and Local Government is now considering the amendment that is now part of this legislation and its legal consequences. I am not in a position at the moment to be able to definitively answer the Senator's question.
How do we know what a landlord's intention was before the Covid-19 emergency? We will have significant numbers of landlords saying that it was always their intention not to continue the lease after a time. What type of protections will we have such that we do not just see another loophole for landlords who want to evict people who have lost their jobs so that they can find tenants who have not lost their jobs, and who have not given an adequate period for those tenants to get back into employment? It goes back to the point I made about access to rent allowance. With the emergency Covid-19 payment being so easy to access, there should be something similar for renters so that they do not go into arrears during the emergency period and when it is over, there is no reason for landlords who say they intended, but did not intend, to get rid of the current tenant. There has to be some other form of protection because we just have no way of proving what landlords intended or did not intend to do during that period.
I thank the Minister for the clarification. It is clearly not clear just yet. Our concern is that there may be people under licence or with informal rent-a-room arrangements who are not covered by this protection.I am sure it is the same across the country, but in our constituency office in Limerick one often meets people whose marriages have broken up later in life who are in informal arrangements. Can the Minister give any assurance that these people are covered by the legislation?
I have just realised that an amendment of mine is included in this grouping. Again, we have heard very well made points from Senators Gavan and Ruane. With regard to amendment No. 13, will the Minister confirm that the obligations of landlords continue? A point was made of stating in the Bill that the obligations of tenants continue during this time. I ask that it be stated that the obligations of landlords are also maintained during the emergency period. We do not want, for example, people to be left in unsafe situations or situations in which landlords are remiss with regard to basic health and safety concerns during this time.
I will speak to my own amendment, No. 14. It refers to tenants who are in licence agreements. These are primarily people who rent a room in a property owner's home under the rent-a-room scheme. They also needed to be protected from eviction during this period.
I support the point Senator Ruane made with regard to access to rent supplement. In the past number of days, we have heard that supports will be afforded and beefed up. We need some answers today as to how people will be able to access these in a timely manner because I have been contacted by many people whose rent is due next week or the week after and they want to know that they will be able to access rent supplement and pay their rent. These are people who have been living in properties for many years. We currently have the highest number of renters in the history of the State. Many of them have lost their jobs in this unprecedented emergency. They need reassurance that they can get rent supplement for a number of months to get them through this period and to keep them in their homes.
It is not clear to me whether this is covered by the amendments Deputy Bríd Smith successfully made to the Bill last night but many students who are renting accommodation, along with many others, are involved with the rent-a-room scheme. I have heard serious concern expressed in this regard. I have seen universities pleading with landlords not to evict students who have left, or who may have to leave, the country or to increase their rents. There are a number of specific circumstances. It sounds a cautionary note about some of the student housing providers who have been getting planning permission. We have seen that some have been very cold and not understanding when engaging with the students who are their tenants. Students rent under the rent-a-room scheme and through formal student accommodation schemes. Clarity on their situation with regard to protection against eviction and rent supports would be really useful.
I will respond to the different points that have been put to me. On Senator Ruane's point, if we discover any loopholes in the drafting of this legislation which need to be addressed, the Minister, Deputy Eoghan Murphy, and the Government will act on them, notwithstanding the limitations we will face for some time with regard the future of this House. The objective driving this part of the legislation is to give as much security as possible to renters at a time of great change and great risk. If we become aware of any unintended consequences or loopholes, the Minister, Deputy Eoghan Murphy, will do all he can to address them.
I am not in a position to give Senator Gavan a definitive answer to his question. It is our view and the view of the Minister of State, Deputy English, that the amendment which Deputy Bríd Smith gained the assent of the Dáil for last night does not do all that was intended. We will have to study it now to determine what unintended consequences might arise, particularly in the area of the rent a room scheme. We will have to look at the possible impact of the implementation of that section on that part of our housing market. Senator Higgins asked a question about the obligations of landlords. The obligations of landlords are unchanged across this period. My understanding is that if they are giving notice of arrears, they must give a 28-day response period across that time and if they are seeking to give notice of termination, they must give 28 days of that as well. It is 56 days overall.
As regards the point Senator Clifford-Lee raised in respect of her amendment, rent supplement and the ability to provide rent supplement will be given a higher level of flexibility than is currently the case. We know that the income of many people who are renting at present will decrease very sharply. However, I should point out, and this refers back to a question Senator Ruane raised on this section, that landlords need to think carefully about what the rental market will look like post Covid-19 as well. Perhaps this point applies with particular force to the commercial sector as opposed to the residential sector. When we emerge from Covid-19 it might well be the case that those who are renting different forms of accommodation, particularly in the commercial sector, may have more choice available to them than was the case in January. All landlords should think about the value of keeping a good tenant and having a long-term relationship with that tenant as they make choices during this period.
I am not in a position to give a definitive answer to the question Senator Higgins put regarding student accommodation and the different forms of accommodation that are covered by Deputy Bríd Smith's amendment. The amendment was only accepted last night and the Department of Housing, Planning and Local Government will take some time to understand the forms of accommodation to which it could apply.
This section would ensure that proceedings of the Tenancy Tribunal, which makes judgments on disputes between landlords and tenants under the Residential Tenancies Act, would be held in private for the duration of the crisis. I wish to hear the Government's reason for such a move. If there is public health advice advising this move that I am not aware of, I will be happy to withdraw my opposition to the section, but my instinct is that we need more public oversight and accountability of the regulation of our housing market in this period, not less. What is the argument for the tribunal's proceedings not to be heard in public?
The only rationale for putting this forward is the risk of the spread of Covid-19 during such hearings. There is no intention to make this the norm. It is only being done to reduce the risk to those who would be involved in the hearing and would only be used in those circumstances.
Regrettably, I will not accept the Senator's amendment, purely because we do not believe that it is legally necessary. Section 3 provides for tenants to be construed to include licensees in student accommodation.
Many workers live in licensed accommodation within landlords' houses, which the amendment sought to address. I do not wish to delay the passage of the legislation, although I am disappointed that the Minister did not accept it.
I move amendment No. 15:
In page 10, between lines 13 and 14, to insert the following:“PART 3AMENDMENT OF HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992 Prohibition of removal of current temporary dwellings from certain locations
9.Section 10 of the Housing (Miscellaneous Provisions) Act 1992 shall not have effect during the emergency period. ”.
The Minister will be well aware of the explicit concerns that many representatives of Traveller organisations and advocacy groups have raised in respect of the 2,000 Traveller families, many of whom live in inadequate and unsafe accommodation. They were concerned they might not have been protected from eviction under the Bill as initiated. I am aware of a different amendment tabled by Deputy Bríd Smith yesterday that sought to provide that no Traveller could be evicted from current accommodation except for health reasons and only in consultation with the Traveller or Traveller family. The Dáil amendment I refer to, namely, No. 19, was accepted. We had intended to table a similar amendment but have withdrawn it in light of the passing of Deputy Smith's amendment.
Nevertheless, the amendment before us will copper-fasten the fact that section 10 of the Housing (Miscellaneous Provisions) Act will not apply during this emergency period. It seeks to give security to families who may be in fear of eviction. Given the inadequacy of housing provision for Travellers in every local authority area in the country, and the failure over many years to provide it despite funding often being available, they could find themselves in an unsafe position, unable to protect themselves appropriately from Covid-19.
Will the Minister assure us there will be no evictions, subject to the criteria inserted in the Bill yesterday?
For the avoidance of doubt, all Travellers currently resident at any location should not be evicted during this crisis except where movement is required to ameliorate hardship or to provide protection, subject to consultation with the Travellers involved. The intention is that members of the Traveller community will not be evicted from any current unauthorised site during the emergency period. The development of new unauthorised sites will be dealt with in line with the existing trespass legislation. Where it is not safe to do so, local authorities have been asked to work with families involved to provide a safe alternative solution. During the crisis, if a family is required to move from its current location to provide for health or self-isolation, local authorities are asked to give-----
I am sorry to interrupt. The time permitted for the debate having expired, I am required to put the following question in accordance with the order of the Seanad of this day: "That amendment No. 15 is hereby negatived in committee and that section 9 is hereby agreed to in committee."
I move amendment No. 26:
In page 13, line 34, to delete “application.”.” and substitute the following:
“application. (10) A person living in direct provision who has qualified and practiced as a dentist outside of this jurisdiction may also apply for registration.”.”.
We put forward these amendments given there is a learned and experienced resource among those living in direct provision. We are asking that the qualification of dentists or different healthcare professionals be included and that, if they have practised outside of the jurisdiction, they may apply for registration. I am aware the Nursing and Midwifery Board of Ireland registration fee of €350 has been waived and I wonder if the costs of other bodies have been also waived. It would be counterproductive to apply these when somebody has no money and is surviving in direct provision. There is a resource here which it would be prudent for us to use. It would add to the healthcare army at whatever level of the professions such people are. It would also give comfort to those in direct provision and ensure their skills are used for the good of public health in this country. I hope to have a positive response from the Minister.
The regulation of the right to work comes under regulation 11 of the European Communities regulations of 2018. We are not aware of a definitive timeline for the completion of the review. However, it is under way and we hope it will be completed as soon as possible.
Public safety demands that regulators are careful to ensure that persons are qualified and experienced, and it is important that they carry out the necessary checks to make sure of this. It may be also necessary to carry out appropriate checks to determine if disciplinary or criminal sanctions have been taken against professionals. Otherwise, it could cause problems, not just for the patients, but also for the other professionals with whom these people might work.
I know it can be difficult for an applicant in direct provision to get the necessary paperwork for an application but regulators endeavour to facilitate these applicants within existing arrangements, while maintaining patient safety and ensuring that Irish standards are met. While this is an issue I can take up with the regulators as a general issue, it is outside the scope of this legislation. The Department of Justice and Equality is leading on work to ensure that public health measures within direct provision emergency centres for international protection applicants and refugee centres are in place.
I understand the point the Senator is making. I ask her to consider that perhaps this is an issue we can take up directly with the regulators to ensure that, even within the constraints I have outlined, there can be quick processing of applications. The Senator is correct that we need as many trained and qualified staff as possible to assist us in the battle against Covid-19.
I am obviously disappointed. How long will it take to go through the regulators? Many things are going to be further delayed because of Covid-19. Perhaps the Minister could push the regulators a little, given it is healthcare professionals we are discussing and that is what we need. It is a question of speed over perfection. Nonetheless, I take on board what the Minister has said.I have some points for later regarding some of the amendments. I take on board the need for us, in here, as well as medics and the Nursing and Midwifery Board of Ireland, NMBI, to recognise those who have been struck off registers due to gross professional misconduct. We need to ensure this process and certainly not let them near our patients. I ask the Minister about that in the context of speed over perfection.
It also is about addressing the institutions that are our direct provision and trying to make them more equitable in whatever way we can. This is one of the reasons for putting down these amendments.
I will be brief. I compliment Senator Devine on these amendments. I raised this issue last week, and I join with her in urging the Minister to ensure this is dealt with through regulation and that a process is fast-tracked. There are many skilled individuals and talented people in our system. I mentioned Sudan last week, for example, where many doctors were involved in the revolution and are refugees in our system. These are good amendments, and I urge the Minister to try to find another way to put them into effect. My last point is that medical professionals, and professionalism in the wider areas of health and social care, also require people to be able to maintain safety standards. Our hospitals right now are a front line regarding PPE, but I remind people that other health and social care professionals will also need protective equipment in order that they can conduct themselves in accordance with full professional standards. That has to be factored in.
I thank the Senators for raising this issue. I understand the point being made. I am also sure the Senators can understand, from our point of view, that we want to ensure that those health professionals involved in the giving of care at a difficult time have the qualifications needed. I refer to them being safe for the patients they are treating and supporting, but also for their fellow staff members with whom they are working. I was with the Minister for Health, Deputy Harris, in the Dáil Chamber last night when this issue was raised and he did say he would be engaging with the regulator to look at anything that could be done to ensure we have as many qualified personnel as possible available in this great national effort. I know he will do that.
To those Senators looking to address this matter through legislation, I do not think that is going to be an effective way of dealing with this issue. What would be better is our colleagues in the Department of Health engaging with the regulatory bodies.
I move amendment No. 28:
In page 17, line 10, to delete “application.”.” and substitute the following:(9) A person living in direct provision who has qualified and practiced as a pharmacist outside of this jurisdiction may also apply for registration.”.”.“application.
I move amendment No. 29:
In page 18, line 34, to delete “application.” and substitute the following:(9) A person living in direct provision who has qualified and practiced as a medical practitioner outside of this jurisdiction may also apply for registration.”.”.“application.
I move amendment No. 30:
In page 21, line 5, to delete “application.”.” and substitute the following:(9) A person living in direct provision who has qualified and practiced as a nurse or midwife outside of this jurisdiction may also apply for registration.”.”.“application.
I move amendment No. 31:
In page 21, between lines 5 and 6, to insert the following:
“Amendment of Nurses and Midwives Act 2011
15. The Nurses and Midwives Act 2011 is amended by the insertion of the following new section after section 107: “108.(1) A nurse or midwife resident in the State who has qualified or practised in Northern Ireland, Scotland, England or Wales may make an application to the Board to be registered in the register of nurses and midwives pursuant to this section.(2) Subject to subsections (3) to (7), the provisions of this Act shall, with all necessary modifications, apply to—(a) a section 108 registration as they apply to a registration in the register of nurses and midwives effected by another section of this Act, and(3) No fee shall be charged for, or relating to—
(b) a section 108 registrant as they apply to a registered nurse or registered midwife, as appropriate, who is not a section 108 registrant.(a) a section 108 application, or(4) Where a nurse or midwife’s name is entered in the register of nurses and midwives pursuant to a section 108 registration, the Board shall enter in that register, or cause to be entered in that register, the term ‘(section 108 registration)’ immediately after the name to indicate that his or her registration arises from the operation of this section.
(b) a section 108 registration or the retention of such registration.
(5) (a) Nothing in this section shall be construed to prevent a nurse or midwife’s name from being entered in the register of nurses and midwives pursuant to the operation of another section of this Act, whether or not his or her name is already entered in that register pursuant to a section 108 registration.(b) Where a nurse or midwife’s name is entered in the register of nurses and midwives pursuant to the operation of this Act (other than this section) when his or her name is already entered in that register pursuant to a section 108 registration, the Board shall remove from that register, or cause to be removed from that register, the latter entry at the same time as the first-mentioned entry is made.(6) (a) Subject to subsection (7), each section 108 registration that is still in force on the 31st day of July 2020, shall, on and after that date, cease to have effect.
(c) The refusal of a section 108 registration for a nurse or midwife shall not prevent that registrant from making an application under another section of this Act to be registered in the register of nurses and midwives.(b) The Board shall remove from the register of nurses and midwives, or cause to be removed from that register, on the date referred to in paragraph (a), or as soon as is practicable thereafter, each name that was entered in that register pursuant to a section 108 registration.(7) (a) The Minister may, by order, specify a different date for the purposes of subsection (6) (including a different date for a previous different date specified in an order made under this paragraph), and if the Minister so specifies, that subsection shall be construed, with all necessary modifications, to take account of that first-mentioned date.(b) Section 3(3) shall, with all necessary modifications, apply to an order made under paragraph (a) as that section applies to a regulation made under this Act.(8) In this section—‘nurse or midwife’ means a nurse or midwife, as appropriate, who is resident in the State but has practiced in another state;
‘section 108 application’ means an application under subsection (1);
‘section 108 registrant’ means a registered nurse or registered midwife, as appropriate, who is such pursuant to—(a) the Board’s determination of a section 108 application, or‘section 108 registration’ means registration in the register of nurses and midwives pursuant to—
(b) a decision (howsoever called) of the Court arising from the Board’s determination of a section 108 application;
(a) the Board’s determination of a section 108 application, or
(b) a decision (howsoever called) of the Court arising from the Board’s determination of a section 108 application.”.”.
I welcome the Tánaiste back to the House. This amendment seeks to streamline the registration process for nurses and midwives who are resident here in Ireland and who have qualified, trained and worked in the UK. Many people would fall into that category so we want to streamline this process as best we can. Hopefully the Tánaiste will accept this amendment.
The HSE and the national action plan have identified retired healthcare professionals and those who no longer work in the public health system as a key cohort who can be mobilised to assist during this emergency. Some of these persons are members of the regulated professions who have let their registrations lapse, including doctors, nurses, midwives, dentists, pharmacists and healthcare and social care professionals. The current legal provisions for restoration are detailed, however, and in some cases restoration to the registers can be a lengthy process. The Bill's provisions seek to facilitate the rapid restoration to professional registers of qualified and experienced healthcare workers who are answering the call to return to practice. The Bill empowers the regulators to adopt a quicker restoration process for these professionals, who are already known to them. These are professionals who have satisfied the regulators that they are suitably qualified and experienced to treat patients and who are now stepping forward to answer the call during the Covid-19 emergency.
The Senators' amendment addresses an issue which is important, that is, the ability to promptly register nurses and midwives who have not been registered here but who have either trained or worked in the UK. General nurses who have trained in the UK benefit from automatic EU-wide recognition of their qualifications under the professional qualifications directive. Registration of those nurses should be straightforward, subject to their requirements of registration, including the evidence of identity, confirmation of good standing and so on, which need to be received. As a right to apply for registration already exists for this cohort, we cannot support the amendment. I accept that some concerns have been raised around a number of individuals who are encountering difficulties in registering. I share the strong support that was expressed in the Dáil last night for the need to ensure these persons can become registered here quickly. The Minister, Deputy Harris, has undertaken to consult with the health spokespersons and the regulators on these cases. We can deal with this through the Minister's office by consulting directly with the relevant regulators to try to ensure that if people want to register here, having been qualified in the UK, they can do so quickly because we need them. We cannot accept the amendment to the legislation, however.
I accept the Minister's explanation. I am anxious that these people, who have trained under a similar regime to nurses and midwives who have trained in Ireland, would be accepted back. Hopefully the Minister for Health can work with the registration board to make sure these people who are answering this call to arms can come back into the system. On that basis, I will withdraw the amendment.
I note and welcome this lengthy amendment. I am partially reassured by the Minister's response. It is an onerous registration process. Perhaps after this emergency when we come through the other side of it, we can reflect that a lot of what we do is quite onerous and a bit plodding and it prevents speed of action. We need to look at every area of our lives, legislation, policy and procedures, etc., always being mindful of risk and safety. I know there are about 100 nurses from the USA, and I made representations in this Chamber a few years ago on behalf of three of them, who were not considered competent or were not allowed to become practising nurses here because of the strict criteria of a set time for clinical hours and a set time for theory hours.We need to look at that. I hope for those based in the UK it will not be three months. I salute those in the Nursing and Midwifery Board of Ireland and the Trojan work they have done in getting over 500 nurses reregistered. They are getting it down to a matter of a week or a week and a half.
Does the Minister have any idea about the UK licence to practise nursing throughout Europe? Has that been impacted by Brexit? We are going off on another tangent. In the meantime I want to say something that has nothing to do with this Bill. You will probably stop me, Acting Chairman. Anyway, well done to the Minister on pay for the student nurses. However, many more front-line staff and students may be left out. I am thinking of radiographers in particular. They are doing the work of trained and qualified professionals under supervision. We will need to look at that as things move on.
I welcome the Minster to the House again. I welcome everything in this section. It is crucial that we get back as many people as possible to help us during this crisis. It is a fantastic reflection on the diaspora that they are prepared to come back and help. The same applies to many of my retired colleagues in nursing and medicine and many others besides who are prepared to come back and work in whatever way they can.
I agree with what Senator Devine said. The registration processes are tedious and onerous but now is not the time to visit that. In an emergency we do this to get us through. That does not negate the validity of Senator Devine's comments or the need for the Department to look into it and try to better streamline the processes we have.
I have no wish to delay. I heard what the Minister had to say earlier but I did not comment because I did not want to delay the Bill by getting involved in that end of it. I am seeking assurances on the construction industry. I have a letter from a lecturer in the construction area who is highly concerned about the safety of sites. I hope the Minister will reiterate that there will be an increased inspection rate on sites. Perhaps some mechanism can be put in place for people who take the view they have to work because the site is open but who may be uncomfortable doing so. Perhaps there is some way they can alert the authorities on the safety issues involved. I will qualify my comment by saying that construction is really important to us, especially with a housing crisis and the building of new hospitals and temporary accommodation to deal with a surge that might come. At the same time we cannot compromise the personal safety of people working in the industry. I would be grateful if the Minister would say something about that.
I was going to mention another issue under mental health.
I cannot really see the wording anywhere. Is there wording to provide that while we welcome everyone back and hope to make getting back to the frontline as smooth and as easy as possible, there are those who have been struck off for professional misconduct. How do we ensure that the safety of the patient is a priority? We are doing this with speed and we are probably not ticking every box. However, we need to ensure we tick the box in respect of people who have been struck off because of professional misconduct.
There are communities involved in the sites as well.
I will be equally brief - I am not making many contributions today. This is an important section and I welcome it because it gets healthcare workers back in quickly. I understand the good intentions of the amendments but I can see the constraints too.
Several organisations are already on the pitch providing important medical services for our communities. I refer to these as the section 39 organisations, including Rehab, Enable Ireland and St. Joseph's Foundation, all of which provide important functions. They are funded from charity shops.Those shops are now closed and that funding source is gone. The Tánaiste cannot possibly deal with everything that is coming at him quickly here, and I do not expect a response to this now, but I would be very grateful if he considered how section 39 organisations are funded during this period.
I will, and I will also respond to some of the other points when I sum up. I can assure Senator Reilly that the State has made no decision at any point that would allow a building site that is not safe for people who are working on it to continue to stay open. We want to ensure that we can help employers, be they on building sites or elsewhere, where work continues to go on in a way that is consistent with guidelines as outlined. If there is not consistency with the guidelines and workers are working under undue risk, then those sites should be closed. The guidelines from the public health emergency team are clear on that. As a result of this there will be increased effort to engage with employers to make sure the guidelines are being observed on building sites and on other work sites.
With regard to section 39 organisations, I know exactly what Senator Humphreys is saying. I am dealing with a section 39 hospice in my own city given the pressures they are under financially. They are being asked to do a lot more than normal with regard to community care and so on. The financial implications will have to be factored in later in the year and we will have to show flexibility.
I do not disagree with the sentiment of the amendment. If nurses or doctors who have qualified and have worked in the UK want to come to work in the Irish system, and they have a track record, they would be a very positive addition here. We should facilitate that as quickly as possible. I do not believe, however, that it needs to be included in this legislation. The Minister for Health, Deputy Harris, has said that he would speak to the regulators to try to ensure it can be done as quickly as possible, while also ensuring that the kind of people we are facilitating to come into the system have a history and a track record that is about protecting patients. They are very welcome here and we will try to facilitate that registration process as quickly as we can.
I move amendment No. 32:
In page 21, line 19, after “Covid-19” to insert “having regard for the vindication of the rights of patients while minimising the care burden”.
These amendments, and some following amendments, are linked to the changes to the Mental Health Act 2001. The amendments put further safeguards for very vulnerable patients during this time of emergency. I would appreciate the Minister accepting these amendments.
Normally I would have quite long responses to some of the amendments but in this case a very clear recommendation from the Department says that the legislation already provides adequate protection on the vindication of rights of patients. I assume the Senator is trying to ensure a belt and braces approach to make sure we have regard to the vindication of the rights of patients while minimising the care burden. That sentiment is shared, but the legal view on this legislation is that the vindication of rights of patients is already strong in this legislation and that it does not need the additional wording.
Certain elements of section 16 are disconcerting but it is necessary. I support what the Government is trying to achieve here. It is important though that the chair may seek input from a consultant psychiatrist in cases that require clinical input but where no consultant psychiatrist is available the chair may decide the case. I hope that we would have an understanding from the Tánaiste that every effort would be made to have a teleconference in these situations so that patients' rights are vindicated.
I would also certainly like to hear from the Tánaiste that an appeal process should be in the Bill. Such appeals, when this is over, if they are still outstanding, should take precedence over other appeals because it is disconcerting that one person could rule on the freedom of a patient in this situation without any input from his or her doctor.
Given the seriousness of this, the issue I was to raise with the Tánaiste may seem somewhat less important. There is confusion amongst golf course owners too. We understand the value of mental health and the value to mental health of getting out and about. I would like a clear steer because some of them are trying to stay open. Others are following the Golfing Union of Ireland, GUI, instruction. At one level, it seems sensible that two people can maintain social distancing everything else being equal and at another level, it would perhaps require more supervision. I would like the Tánaiste to tell us whether we should shut them all because the Government has announced a complete shut-down of all sporting events.
On Senator Reilly's point, I agree that under normal circumstances one person should not be in a position to make such draconian decisions but one would hope, similar to the legislation that was passed here last week, that it would never be required. We need to give the powers that be the flexibility that if it was needed in rare circumstances, that would happen.
In terms of the golf courses my learned colleague spoke about, all golf courses should close. It is very simple. In fairness, the Golfing Union of Ireland gave that direction. They can argue on the fringes of whether it is appropriate or not, whether it is in the interests of mental health or not, but the bottom line is that they need to show leadership as well. Some of those organisations have been significantly well funded by the taxpayer over the years, whether through sports capital grants, lottery funding or whatever. They now need to step up to the plate as well and show leadership. If there are people watching who are involved in golf clubs, group peer pressure for them to close would be appropriate in my view.
The section deals with health and mental health. One of the issues the Government has been clear on is what companies should and should not be doing. I am getting word from people who work in areas, from example, safety deposit companies, where there are closed rooms, only one door in and safety deposit boxes, that staff are being told this is a critical business that has to stay open. That is hard to believe.
I am also hearing about supplement companies which provide food supplements in the area of bodybuilding that they are a critical food provider. I would welcome a statement from the Tánaiste - I have spoken to the Minister for Finance as well - about people being a little more honest with their workers. This is putting workers under severe mental stress as they are having to go into areas where they feel threatened when there should be no need for them to go in there. If those companies come to the light of the Government, action should be taken. I am quite happy to share the names of the companies with the Tánaiste outside of this Chamber but I need to put it on the record. Companies need to look after their staff and the mental health of their staff.
I do not want to stray into the golfing area but the national sporting bodies are giving good guidance to their members and their members should take that guidance seriously. That is all I will say on it. That is not to say that people should not be able to take exercise, which I accept is good for mental health. Sporting bodies will have consulted and will be making responsible decisions and recommendations. Member clubs should heed that advice.
A couple of questions had no connection with the amendment but-----
I move amendment No. 34:
In page 22, line 6, after "concerned" to insert ", in person or by remote consultation".
My concern was addressed somewhat in the Dáil but I would like to see it reiterated here. The amendment aims to insert ", in person or by remote consultation". I think the Minister for Health said that this was a given. I was involved in the Mental Health Act and know how difficult it was at the time but at that time, we did not have remote consultation or electronic means. I worked on it with the trade unions, the Department of Health and the Mental Health Commission way back in the 1990s. If the Tánaiste can say it is there, that is fine but at the time it was being drafted, there were no electronic communication.
There is that same concern around trying to ensure we do everything we can to ensure appropriate advice is taken. The amendments put forward by Senators Clifford-Lee and Devine are very constructive. I am conscious that we may not come to my amendment, which is amendment No. 37, which is a bit later. That amendment was aimed more at addressing the consequence but it involves that same principle, which is-----
The reason I put down amendment No. 37 is that same principle, which is basically that it is important that we endeavour always to try to have the best psychological advice relating to decisions that are rights-based issues on mental health. Rather than look to excuses to bypass that process, we should look for mechanisms to make it happen.
I do not disagree at all with that principle. In respect of amendments Nos. 34 to 36, inclusive, this issue was addressed quite extensively in the Dáil last night. The Office of the Attorney General advises that remote-electronic consultation is implicitly included in the Mental Health Act 2001 and the amendments proposed in this Bill.Accordingly, the Attorney General's office advised against including explicit reference to remote or electronic means, as outlined in the amendments, as it may mean that those are excluded from the existing Act when the legislation reverts to the existing measures under section 1(3) of the Bill.
In terms of amendments Nos. 35 and 36, the form of report can be dealt with operationally by the commission and does not need to be set out in legislation. I received advice as Senator Devine was speaking to the effect that amendment No. 34 may cause more problems than it solves. According to the Attorney General, it is not necessary to implicitly use the words "remote consultation" in the legislation as it is already understood and it may have a knock-on negative consequence in terms of the primary legislation when this emergency is over. The recommendation is not to accept the amendments but the spirit of them is understood and I do not think there is a problem.
In response to amendment No. 39, the form of report can be dealt with operationally by the commission and does not need to be set out in legislation. The Attorney General's office advises that remote or electronic consultation is implicitly included in the existing Mental Health Act 2001 and, accordingly, the Attorney General's office advises against including explicit reference to remote or electronic means, as outlined in the amendments, as it may mean that those are excluded from the existing Act when the legislation reverts to the existing measures under section 1(3) of the Bill when they are no longer needed following the emergency.
I move amendment No. 35:
In page 22, line 12, after “writing” to insert “, in a form provided by the Mental Health Commission,”.
I do not wish to take up the time of the House by speaking about the amendments. I will just move and withdraw them.
I indicated before it was agreed, Acting Chairman. The last thing we want to do with this emergency legislation is create unintended consequences. I agree with the Tánaiste's synopsis of it. I am fully aware of situations under the Mental Health Act where teleconferencing was used to assist in decision making. The option already exists. I commend Members who went to the trouble of tabling the amendments. Their intentions were very good. We also have to be careful of unintended consequences.
I move amendment No. 37:
In page 23, line 21, to delete “subsection.”,” and substitute the following: “subsection. (3C) The exemption outlined under subsection (3B), shall not be applicable on more than three consecutive occasions in relation to the same individual.”,”.
The Minister's argument to the effect that remote consultation is implied is very clear. I welcome also the clarification yesterday from the Minister for Health, Deputy Harris, on consultation and examination for those seeking emergency contraception or access to early abortion if needed in circumstances where persons cannot safely visit a GP. The clarification has been very useful.
I will withdraw amendment No. 37. I do not think it is correctly worded but the intention was to indicate that where we have tribunals taking place in this unique, non-ideal circumstance, as set out in subsection 3A, whereby a barrister is the only remaining member of a tribunal and there is no longer a psychologist present, that it should not happen on multiple occasions. We should not see it happen on more than three occasions. We do not want this to become a new norm for tribunals. Those with mental health difficulties need to know that at a point in time they will have an opportunity to engage with a psychologist.I do not believe my amendment is correctly worded. It focuses on subsection 3B rather than 3A. The point, I hope, is one that the Minister could take up. That involves the importance for persons with mental health concerns to know that there is going to be a period of time that they can plan for at which they will be able to engage with a psychologist and not simply be subject to tribunal by a lawyer on multiple occasions.
I support the sentiment in the legislation. It is quite shocking that it involves a lawyer or barrister with a legal background while the actual practise of psychiatry or psychology is not taken into account. When the Mental Health Commission and the tribunals were set up, unfortunately, they went down the legal route, which is unlike what happened in Britain, because much money was to be made from it. Money is not made by the experts and the medics involved.
Amendment No. 38 seeks the voice of a medical professional who knows the patient. The barrister is there to look at the law. The tribunal is not just about law but about equality and fairness while listening to the voice of the patient at the tribunal, although remotely. If a consultant psychiatrist is not available, we then perhaps need clinical nurse specialists or advanced nurse practitioners.
There should not be a constant extension of someone’s involuntary status for a long time.
I want to give a shout out to the Bills Office for working so hard on the amendments last night. It did really well.
We are dealing with two slightly separate issues.
First is the concern that Senators understandably have that one person is simply making decisions about patients without any other input. That is not what is being proposed.
The note I have regards clinical input. Before making a renewal order, the responsible treating consultant psychiatrist examines the patient to determine if he or she is still suffering from a mental disorder. An independent consultant psychiatrist also reports to the tribunal on whether the patient is suffering from a mental disorder, having also interviewed the treating consultant psychiatrist. Normally, in the absence of this legislation, that second independent psychiatrist would be required to be part of the decision-making process. They would now be required to make a report but not necessarily be there in person.
The tribunal also has the option of consulting with the third consultant psychiatrist where two reports differ. In other words, if there is a conflict regarding the advice, they can consult with a third opinion.
Within the expected lifetime of this legislation, it is unlikely that there would be more than the three reviews of a patient. For example, if a patient were admitted tomorrow, typically there would be a review of the admission order within 21 days, a second review within three months and a third review within six months. There are a number of minor exceptions to this. For example, where a patient is detained on a six-month order, the patient can request an additional review at or after three months. The Mental Health Commission has undertaken to monitor any such cases that might arise and will endeavour to endure that no patient has more than three tribunals with a one-member panel. It is unlikely that the circumstances outlined by the Senator would happen. In exceptional circumstances, those cases would be monitored closely by the Mental Health Commission.
I want to emphasise the lack of rights for patients in involuntary arrangements prior to the setting up of the Mental Health Commission and tribunal. What Senator Higgins is alluding to is the continual passing on and the rubber-stamping regarding involuntary arrangements. That is what happened before the legislation. It was really about giving rights and voices to patients incarcerated in various circumstances. All hope was almost lost at that time. This proposal is to make progress on that and to ensure we do not lose the humanity that allows for people's recovery and allows them to have a voice.
I move amendment No. 38:
In page 24, line 21, after "appointment" to insert the following: "and one member who shall be either a consultant psychiatrist or a member who is registered at the level of clinical nurse specialist in psychiatry, or above".
I move amendment No. 42:
In page 26, line 15, after "Minister" to insert ", on the advice of the Defence Forces Chief of Staff".
I will not delay the House on this. What I am trying to say is very clear, that is, that the Minister should act in operational matters only on the advice of the Chief of Staff of the Defence Forces. The legislation, as it stands, would leave the Minister open to accusations of political interference where people are selected to return to the Defence Forces. To make sure that the Minister is covered legally and that there can be no allegations of political interference in the Defence Forces, I have, in each of the grouped amendments, sought to have us look to the Chief of Staff to advise the Minister or to seek the opinion of the Chief of Staff in each case. I will not elaborate any further because I am aware that time is pressing.
I am glad the Minister is in the House. Amendment No. 47 has been ruled out of order because it would impose a cost on the Exchequer but there are very simple things that need to be done to put the Defence Forces on par with the HSE. The HSE has been able to suspend abatement in pensions. It has been able to pay student nurses a full wage. Cadets, recruits and apprentices, who comprise a very small group, are at the front line. Our cadets are handling the tracing calls for the HSE. It is extremely onerous and tough having to ring people to tell them they may have been in contact with somebody with Covid-19 and may be infected and to listen to the horror stories coming back.These are young people. We ask that the military service allowance be paid to those people. They are in front-line, full duty work at this point, the same as any other soldier, naval personnel or anybody in the Air Corps. They are doing full duty. The military service allowance must be paid to them for no other reason than equality with all other sectors in the economy. Pension abatement has been waived within the HSE and it should be waived for members of the Defence Forces returning. With regard to the period of time that people are expected to return for, we cannot tie them to six months or three years. These are people who have left the Defence Forces and who have good civilian jobs. They are currently available to the State because of the situation that we find ourselves in and many will be happy to return, but we must give them an assurance of two things. One is that they can leave without any cost to themselves when the economy changes or the virus is beaten, and the second is that their jobs will be protected. The Government did that for members of the Reserve Defence Force last night. We need to do it for members of the Permanent Defence Force too. The buck stops at the Minister's desk. I ask the Minister to treat the Defence Forces with the same degree of respect that we have given to the health service. Last night, we stood and applauded all front-line workers. We did the same thing again today in this House. I ask that we deal with the Defence Forces with the same degree of respect. Respect is measured by how we treat them. If we treat them the same way that we treat everybody else, I think that is fair.
I move amendment No. 49:
In page 28, to delete lines 19 to 21 and substitute the following: “ “applicable period” means—(a) the period of 12 weeks commencing on 26 March 2020, and
(b) such other period (if any) as may be specified by order under subsection (20);”.
Amendments Nos. 49 and 56 try to put in legislation the idea that rather than just extending the period by the Minister's will, the Minister would have to go back to the Houses of the Oireachtas to get permission from time to time to do that. The wording is that the Houses may, by a vote of approval, extend the period, but it would not totally be at the Minister's discretion. It is not that I doubt the Minister. It would mean the Minister would come back to the Houses to ask for permission occasionally to do what he is doing. I hope I may be here but I do not know who will be here. It is not a bad thing to have some control of the Houses over what the Executive is doing.
I thank Senator Horkan for raising this issue. I think the Senator was present in the Chair for the debate that I had with Senator Clifford-Lee earlier. At any other time, the change that the Senator is looking for would already be contained in the legislation. I can imagine very few other circumstances in the future in which we would have legislation that would vest this kind of power in the Executive. The sole reason for this is because there are conceivable circumstances in which it would not be possible to reconvene the Oireachtas to look for consent to make these decisions. As I said in a debate earlier this afternoon, if one looks at the equivalent economic legislation that was conceived during the economic crisis, it required a degree of engagement with the Oireachtas. That shows what exceptional times we are in.
I was listening when I was in the Chair, though the Minister might think I was not. I heard the point he was making. He accepted the rationale for the amendment then and equally for the amendment now. Based on what he is saying and what he contributed earlier, I am happy to withdraw amendment No. 49.
This section deals with employers and wage subsidies. I want to highlight an issue for the Minister. Is he aware of the crisis in respect of travel agents? Travel agents across the country are facing bankruptcy because they are having to pay refunds to people who have booked holidays but the airlines and cruise operators are refusing to offer any compensation. They are in breach of European law in this regard. Other members of my party and I have been inundated with queries and concerns about this issue. This wage subsidy is a crucial support to these people but it will be no good to them if this Government, through the Minister's Department, the Department of Finance, and the Department of Transport, Tourism and Sport, does not insist that operators refund travel agents just as they have to refund their customers.
I will give the Minister a prime example. We have heard about all the good work the Government is doing with Aer Lingus and about the special flights it is running but it is refusing to compensate travel agents. I have a specific example regarding a passenger in Cork. By law, travel agents have to refund moneys to passengers who cancel plans because of Covid-19. So do the airlines and cruise operators but they are not paying back money. We need intervention in this area if we are to save these jobs. This was the most appropriate section of the Bill under which to raise this issue.
I wish to briefly make a second point. If it should come under the next section, I will raise it at that time. People who work in the South but live in the North qualify for the wage subsidy but they do not qualify for the pandemic unemployment payment, PUP. I cannot understand the justice in this. We asked the Minister about it yesterday but did not get a response. If people who are resident in the North are working and paying taxes in the South and then lose their jobs, why are they not entitled to that €350 PUP? It is completely wrong and it is partitionist in the worst possible way. Surely, after all the progress we have made, a person employed in the South losing his or her job in the South should satisfy the qualifying criteria for the PUP. The idea that this Government, or any Government, would discriminate against people for living in the Six Counties is absolutely disgraceful. I hope that the Minister will confirm that is not the case. We got no answers yesterday.
Senator Gavan did table an amendment. He did not move it but asked to speak on the section so I made an exception. If I allow Senator Mulherin in, there will be three others wishing to speak. The Senator can go ahead.
Will the Minister give some assurance with regard to the concerns about the operation of the wage subsidy scheme expressed by Ms Michele O'Boyle, president of the Law Society, on behalf of practising solicitors, by Richard Grogan, an eminent employment law specialist, and by insolvency lawyers? I apologise if he has already done so. I hope he will tell me if he has. These concerns centre on two simple points. Their concern is that a company would have to declare itself insolvent. This is an interpretation allowed or directed by the legislation. Another concern is that the definition of turnover is unworkable or unsatisfactory. Mr. Grogan also raised the point that the wage that might be paid by an employer as a top-up may not be deductible as an expense for the purposes of corporation tax returns in the same way as wages normally are.I am sure the Minister is aware of the concerns that have been raised. Perhaps he would clarify it.
I listened in agreement to Senator Gavan. I, too, have been contacted by people in the travel industry. I have also been contacted by people who are caught abroad after they paid for flights, but the flights have not taken place. The situation is that they will get a refund in 12 months. Many of them are students. Perhaps the Minister for Transport, Tourism and Sport could intervene with the Commissioner for Transport. This is a European problem. Fast solutions could be devised through the Commissioner for Transport in Europe. Certainly, a teleconference needs to happen among all these people.
I will be very brief. I would not have pressed my amendments; I would have withdrawn them. I hope the Minister will be able to address my concerns. The language used in the Bill is not strong enough. For example, I had sought that the "ability to pay" be used as the language in the provision because we have a mechanism for asserting inability to pay rather then reasonable efforts or best efforts. That language is vague and does not give assurance. It is unusual to include in legislation something that is to drift into the mind of an employer and what the employer might mean and what the employer might regard on balance when we have those mechanisms. Insolvency and bankruptcy have been discussed, but potentially more relevant to the issue is ability to pay.
If there are organisations and companies where the subsidy is being exercised, and I urge companies to exercise this provision in respect of protecting their staff, it should not be regarded as a subsidy that allows the company to continue to increase the wages of the highest paid in the organisation or to give share dividends or other bonuses. My amendment simply sought to provide that we would not have a situation where there are bonuses and wage top-ups at the top level if the State is effectively subsidising the wages at the lower levels. I had hoped that it might have been possible to have a legislative provision on that. We might have to revisit it in future extensions, but the Minister might give me an assurance on how he plans to address both issues.
I thank the Senators. I was not aware of the issue raised by Senators Gavan and Conway, but I will raise it with the Minister for Transport, Tourism and Sport. It is just one of the series of issues that are developing now as our economy responds to the public health emergency. The Minister for Foreign Affairs and Trade and the Minister for Transport, Tourism and Sport are making great efforts in other areas to deal with the concerns of travellers. I will ensure the matter raised by both Senators is raised with the Minister for Transport, Tourism and Sport and his Department.
Regarding the issues raised by Senators Mulherin and Higgins, I will give a brief context for this section in the legislation. Some 11,000 companies have now enrolled in this programme. That shows the breadth of the challenge that is approaching. In other circumstances one could point to that type of enrolment and feel a degree of satisfaction for putting in place a scheme that can make that type of difference to companies, but it is an indication of the challenge that is approaching and the necessity for a programme such as this. The programme was conceived at great speed. I have no doubt there are issues we will have to address and that there will be anomalies and issues of detail that will require work.I ask that companies bear with us as we work on this. If nothing else, the Revenue Commissioners will tonight become an institution of the State that pays people, which shows the kind and speed of change that is happening.
On some of the issues that Senator Mulherin referred to, my explicit message, as articulated by the Chairman of the Revenue Commissioners earlier, is to encourage companies to contact the Revenue Commissioners directly. At a time of great stress for companies, when there is much uncertainty, there is no need to add to that. They should directly contact the Revenue Commissioners and gain advice on how they can participate in such a programme. There are criteria. To companies that have concerns about whether they are in or out, I ask them not to approach Members of the Houses of the Oireachtas about that. The only people who will decide whether a company meets the criteria are the Revenue Commissioners. Companies should not divert their time by approaching a Deputy or Senator, nor place a Deputy or Senator in such a position. They need to engage directly with the Revenue Commissioners.
On the points raised by Senator Mulherin about turnover, the definition will vary as we engage with companies. The most likely way in which decline in turnover will be worked out will be to examine what the expected turnover would have been in quarter 2 and to compare that with an equivalent period, most likely quarter 2 a year ago. It is not unworkable. These are issues that companies and the Revenue Commissioners will be able to resolve very quickly between themselves.
As for declarations of insolvency, the very outcome we are trying to avoid is companies becoming insolvent. We are trying to ensure that if companies are in a position where they are in difficulty, they will be still in a position to retain a relationship with their employees and keep them involved. Participating in this programme is all about ensuring that companies are in a position whereby when our economic health recovers, they will be able to rebound, without having put their employees on the live register.
I am not in a position to answer the question about the deductibility of wages from corporation tax. Nevertheless, the detailed guidance from the Revenue Commissioners on how the scheme will work has been published and I hope the question will have been answered therein for those who have raised it.
On Senator Higgins's questions about the amendments she tabled, the reason we used the term "best efforts" and its corresponding definition was that it is conceivable that, as this emergency evolves, some companies will be able to add to the subsidy. If they are able to do so, we want them to do so. We want them to be in a position where they can ensure that the wages they give their employees include, and perhaps constitute the majority of, a "top-up" payment that they are able to make themselves. Where companies can add to the subsidy, we want and expect them to. We recognise, however, that it could become the case that companies simply will not have income coming in and as a result will not be in a position to pay wages to employees. What would normally happen in such circumstances is that the employer would cease to exist and the employees would become unemployed, but that is what we want to avoid happening. The company would continue to exist and would be able to maintain its relationship with its employees, particularly those on lower wages What is likely to happen in such a scenario is that the State will pay the employees' wages for a period. This is a huge change for the State but we are dealing with extraordinary circumstances and this is what we need to do. In regard to whether an employer would be in a position to pay bonuses or higher wages to different members of the company, one of the definitions we have put in is the inability to pay normal wages. I will simply say that having put in place this scheme and then exited this scheme, hopefully, depending on the public health circumstances, if, later in the year, the Revenue Commissioners discover that employers who are benefiting from the scheme were paying higher and unchanged wages to other members of the company and paying them bonuses, it is pretty likely it would be the subject of action from the Revenue Commissioners. There are many risks with this scheme but, as I said in the Dáil last night, while there are risks, the greatest risk is that if we do not put something like this in place, many hundreds of thousands of people who are currently working might not have a job in a few weeks. We cannot let that happen, which is why we are doing this. That is why we have a reference to "best efforts". As I said, it would be our absolute expectation that if a company is in this scheme, more senior members of that company would see their own wages change.
As I understood the issue last night, the Department of Employment Affairs and Social Protection was studying the issue. If the Tánaiste gave the Senator a more up-to-date answer this morning, I am afraid that is information I do not currently have available to me.
While I do not wish to intervene, to be helpful, what the Tánaiste said this morning was that, irrespective of an address, they would be treated in the same way as if they were living in the Republic. The Senator can get further clarification but that was my understanding of what the Tánaiste said this morning, although I am not in government.
The Minister can understand why we put forward amendment No. 60. I would like to have clarity on this issue. I had queries just this morning and it is a natural concern. People are asking if they will be protected in terms of their ultimate redundancy entitlements. The Minister can see that what we have proposed is very straightforward. Amendment No. 60 states: "Any time spent laid off or on short time as a result of measures referenced in subsection (1) shall not be considered a break in service for the purposes of calculating redundancy entitlements in the future." Is the Minister in a position to give us an assurance that nothing in this Bill will damage redundancy entitlements in the future?
I am not in a position to accept amendment No. 59. Senators are aware that the emergency period is defined in this section as ending on 31 May. If there is no need to extend the emergency period beyond that, the Government will not. We merely want to give businesses an opportunity to get back on their feet and it will revert to the normal time periods when the emergency period is over.
With regard to amendment No. 60, in order to qualify for a redundancy payment, an employee must have worked continuously for his or her employer for at least two years. The existing provisions in section 3 of the Redundancy Payments Act already provide that periods of temporary lay-offs do not break continuity of employment, and this will include temporary lay-off periods due to Covid-19.Similarly, short-time work does not break an employee's continuous employment. The Senator may be referring to reckonable service as opposed to continuity of employment for the purpose of the calculation of a redundancy payment. Reckonable service is regarded as a week within continuous employment during which the employee is actually at work or absent from work due to specific reasons, such as carer's leave, parental leave or certain periods of sickness and holidays. Periods of short-time work are classed as fully reckonable for the redundancy payment calculation, as the person is actually at work.
The emergency measure the Government has brought forward is intended to prevent mass redundancies over a short time. In many cases, the period of temporary lay-off, which is not counted as reckonable service, will not make a significant difference to overall redundancy payments. I think I am correct in saying that there has been no consultation with employer bodies as well as employee representative bodies on this amendment, which is against the general practice with amendments to employment law. I am not, therefore, in a position to accept the amendment.
I move amendment No. 60:
In page 34, to delete line 29 and substitute the following:
“(5) Any time spent laid off or on short time as a result of measures referenced in subsection (1) shall not be considered a break in service for the purposes of calculating redundancy entitlements in the future.
(6) In this section—”.
Who knows what the situation will be with unemployment post the Covid-19 crisis? Those people who have come forward to volunteer in the HSE, the Defence Forces, etc., need to know that their service will be terminated on their request, should they wish to terminate their service, the moment the Government declares the crisis over. I am not looking for that to go into legislation today, but I am seeking a statement that they will be able to do that. Going back to my Defence Forces' people in particular, I ask that there be no charge and that they will not be asked to purchase their way out. Six months was mentioned last night in the Dáil as being the minimum period and three years as the maximum period of re-enlistment. People may re-enlist for the crisis but want to walk away and get back to their civilian jobs the moment the crisis is over. We need to give people that reassurance, if we could.
SECTION 32 Senator Gerry Horkan:I move amendment No. 61:
This amendment seeks clarity regarding the registrar having a timeframe in which to publish requirements so people will know what requirements they have to fulfil, will not be waiting for ages to know that or have to fulfil requirements without knowing what they are.
That is fine. Regarding the timeframe issue, will the Minister indicate when it is planned that this section will commence? I have been receiving inquiries concerning the commencement of section 9 and changes to planning laws. Will that commence from Monday? When does it come into effect? I am sorry for asking, but this is a query I have received because people are looking for certainty. They are making decisions and are seeking clarity as to the planned commencement date.
An extension was also mentioned. Reference was made to the Minister consulting with others. Does he also intend to consult with the public and-or relevant actors, such as, for example, An Taisce, regarding the extension of changes to the planning regulations?
I am aware of a number of outlets that have just commenced doing deliveries that would not necessarily have planning permission to do so. I sincerely hope the spirit of what is being proposed in the legislation would be retrospective for the past couple of weeks as well and that nobody will suffer any punitive circumstances or consequences because they did what they believed to be the right thing, not just from the public's perspective but also in trying to save their businesses and keep their staff employed. I know of a number of situations where that was done. I was even contacted yesterday by another operator who was proposing to provide a takeaway service and that has to be welcome because there are many people who not only require it but also want to have some variety and take a break from their domestic cooking duties.
I move amendment No. 64:
In page 39, after line 35, to insert the following: “PART 10
AMENDMENTS TO THE LANDLORD AND TENANT (AMENDMENT) ACT 198034. The Landlord and Tenant (Amendment) Act 1980 is amended by the insertion of the following new section after section 88:“89. (1) In this section—
‘emergency period’ means the period beginning on 26 March 2020 and ending on 31 May 2020.
(2) Any provision of a lease requiring a tenant to keep a premises open for a specified period or specified hours shall be dis-applied during the emergency period.
(3) A landlord shall not be entitled to rely on any failure on the part of a tenant to keep a premises open during the emergency period as constituting a breach of the relevant lease or tenancy pursuant to which the said premises is occupied.
(4) Any failure on the part of a tenant to keep a premises open during the emergency period shall not constitute a breach of the relevant lease or tenancy pursuant to which the said premises is occupied.”.”.
Amendment No. 64 is in connection with the scenario in which some shopping centres require shops to be open for a minimum number of hours per day and per week to ensure the viability of the shopping centre. In normal circumstances, it is understandable that a shopping centre wants to have life and vibrancy and does not want big empty premises opening and closing when it suits them. This amendment seeks that in these exceptional circumstances, we would not require tenants to keep premises open for these specified periods because there is clearly other legislation to suggest that non-food shops should not be open. This may be already covered but I was asked to table the amendment.
Rent freezes and bans on evictions already apply to residential tenants and amendment No. 67 seeks to ensure that commercial tenants would also have the same rent freeze and ban on eviction clauses applied to them.
To follow on from what my colleague said about commercial premise leases, I know a number of businesses have come under severe pressure to pay rent when they are closed. The Minister might agree with me and I echo his sentiment that we may be in a different environment for commercial leasing post-Covid-19. A lot of these landlords are from big organisations so maybe they should step back and question whether those people who have been loyal to them over the years as tenants will come back and have vibrant businesses again. However, if they drive them to the wall now by demanding rent, they will have nothing but empty premises when this comes to an end.
In the area of shops, this Government has done everything it can to advise businesses on what is and what is not essential. It cannot dot every "i" and cross every "t" and it cannot have a list of every single business in the country. I already made the point to the Tánaiste and Minister for Foreign Affairs and Trade, Deputy Coveney, that the likes of these storage boxes that people can rent are not an essential service. They do not need to be open and they are putting their staff at risk. I mention the companies that provide supplements for the fitness industry, for example. These are not foods, let us be honest about it. They are something that people do not need to get in order to survive. These organisations need to follow Government advice, stop putting their staff at risk and close their premises, as they have been asked to do.This Government has bent over backwards to try to protect the people but it has gone a stage further and tried to protect the earnings of people as well. It is most disingenuous of any business to try to force staff to come in on reduced hours purely to keep the doors open. I believe the Minister has the support of this House. I wish to God that the people who are ignoring some of the advice Government has given would also support the Government in the way they need to.
The amendment proposes a new section 10 in the Bill. I had my own version of section 10 that related to consents, permits and leases for the Air Pollution Act, the Environmental Protection Agency Act, the Waste Management Act, the Local Government Act and other Acts. I am conscious they have not really been addressed in this Bill and perhaps it points to an arrow or another area for consents, permits and so forth. It possibly relates more to building on the previous section. That was my intention. It was to be a new section 10 to try to ensure that we are clear on how processes in other relevant Acts that are under way might be paused or dealt with.
Am I correct in saying amendment No. 62 was ruled out of order? I wish to clarify that because it went quickly.
I hope the Minister might take the points to the relevant Departments and perhaps consider them. There are a number of ancillary processes that may need tailored pauses and clarification around this time. We do not want to have a large number of other planning staff working on processes or working to timelines in a way that is endangering or unnecessary in terms of maximising public health. I will leave that point with the Minister.
You are doing a remarkable job in your last day as Cathaoirleach in this session. You do not have to correct yourself often at all.
I suggest that the provision in Senator Horkan's amendment probably will not apply because most of these businesses will be non-essential and would probably be closed in any event. Therefore, what would be required in terms of obligations for opening times would be non-applicable.
Senator Craughwell made observations on non-essential businesses. I have to agree with him. I would not consider health food shops necessarily essential businesses. Some luxury food shops remain open. Again, I would not consider them to be essential businesses. There may be situations of confined spaces. These may be small specialist luxurious food outlets operating in a confined space. With the best will in the world I do not believe they would be able to adhere to social distancing requirements. We cannot dot all the i's and cross all the t's and there has to be some buy-in. I reckon 99.9% are absolutely buying in. I would encourage those who are not to do so.
I wish to make a point to Senator Conway through the Chair. The whole point of amendment No. 64 is that there are contracts and leases that require shops to stay open. Technically, they would be in breach of their contracts and tenancy agreements. That is the point.
It relates to the opening hours and requirements of shops to open under tenancy agreements. Some must open. In large shopping centres there are often requirements that shops must open for a minimum number of hours per week or per day.The request is that we would disregard that for now so that people cannot then be held by their landlords to be in breach of their agreements because they have been shut by Government instruction, directive or advice. That is all we were trying to do with that amendment.
Amendment No. 67 looks for the protection for commercial tenants that is already being given to residential tenants.
I thank Senator Horkan for those points. The advice I have is that those issues can be dealt with inside existing legislation. The Senator is correct that we want to mitigate harm done to tenants by their following advice issued by the Government. I made the point earlier in the debate that it is important the commercial landlords in particular have a sense of perspective with regard to what our economy will look like after Covid-19 has left us. With those people who have been running good businesses and who have been good tenants, it is as much in the interests of the landlord as it is the tenant, that everyone is pragmatic across this period. I hope this spirit of pragmatism can prevail. I appreciate, however, that when we are successful in dealing with this public health emergency there will be a number of economic issues confronting us that will require a response from Government, from the local authorities, and from the bodies involved in regulating these issues.
I move amendment No. 66:
In page 39, after line 35, to insert the following:“PART 10Amendment of section 4 of Local Government Rates and Other Matters Act 2019
AMENDMENT TO LOCAL GOVERNMENT RATES AND OTHER MATTERS ACT 201934. The Local Government Rates and Other Matters Act 2019 is amended by the insertion of the following new section after section 4:This amendments asks that where businesses can demonstrate they have been adversely affected they would not be charged rates - as opposed to just a deferral of rates - from 26 March until 31 May. There is, obviously, a knock-on effect to this. The local authorities would need to be compensated for the revenue they would be down. Clearly, I would not want the local authorities to be at a loss. Some businesses will not be as adversely affected as other businesses but there will be properties that are very severely affected by this pandemic crisis. This amendment means they would not have to pay rates subsequently for the period they are shut or during which their business revenues are damaged, which affects their capacity to survive. Equally, we would need some protection or mechanism that would not leave the local authorities with a big hole in their revenues for the April-May rates.“4A. (1) In this section—‘relevant property’ has the same meaning as it has in the Valuation Act 2001;
‘emergency period’ means the period beginning on 26 March 2020 and
ending on 31 May 2020.
(2) Where a relevant property is occupied by a person engaged in a business and the business of that person has been adversely affected by Covid-19 to a significant extent, the emergency period shall not be reckonable in the calculation of the rate levied by a rating authority in the local financial year.
(3) When calculating the amount of the rate to be levied in accordance with the formula provided for in section 4(2) the rating authority shall deduct from the amount calculated as ordinarily payable a sum equivalent to that proportion of the rate attributable to the emergency period.”.”.
I propose not to accept amendment No. 66 because the proposed amendment would not have any effect on rates levied in 2020, as the bulk of provision in local government rates and other matters after 2019 have not yet been commenced, and were never intended to come into effect in 2020. Rates levied in 2020 were not levied under the 2019 Act but under the original rates legislation, which remains in effect. Notwithstanding this, and given the issues as raised by Senator Horkan, along with the unprecedented nature of the challenges arising from the Covid-19 situation and the challenges therefore being faced by many ratepayers, the Government has agreed with local authorities that they should agree to defer rates payments due from the most immediately impacted businesses, primarily in the retail, hospitality, leisure and childcare sectors, until end of June. The measure will be implemented by each local authority in its own area and was announced by the Government last Friday. Any ratepayer who has had to close temporarily or significantly curtail operations during the Covid-19 period should contact his or her local authority with regard to any rates payments falling due to the period to the end of June. Local authorities have been asked to publicise this arrangement and put in place dedicated contact arrangements for ratepayers.
The Senator is correct that these rate payments are a very important source of income for local authorities. The Government will have to put in place measures to compensate them for this announcement. As a precursor to this an advance payment of local property tax, LPT, of €136 million is being made to the local government sector next week.
I thank the Minister for his response. I note the Minister stated, and I assume meant, it is deferral of a payment as opposed to deletion of an obligation. The Government is saying it does not have to be collected for the moment but the bill will stand, existing into the future. Businesses that are shut for two months and are not trading commercially will still be required to pay their rates in the future. The bill has not gone away. It has merely been deferred, which is an improvement over not being deferred but only that.
I appreciate that if this amendment was accepted we would have a problem with paying everything next week but I want to put on the record of the House that plenty of businesses that are shut for two months, in many cases as a result of Government advice or direction, including bars, restaurants, hotels and hospitality, are being charged local authority rates while they are shut, not trading and not generating revenue. This amendment, which I will not be pressing, provides a mechanism. There is no point in us forcing businesses that will go bust if they have to pay rates. In some cases, it can involve large amounts. It could be the difference between surviving and not surviving.
It is important that the Minister and the Government appreciate the significant amount of money that is collected in the commercial rates sector. If we can do other things - extraordinary things have happened this week and we acknowledge many of them are worthwhile - it is important we appreciate all that is being offered is a deferral of the date that the bill has to be paid. I am not asking for a rates holiday for every business or anything like it. There will be businesses, however, that will be hugely adversely affected and in many cases closed, and they should not be expected to pay rates for the two or three months that they are closed as a result of Government advice or direction.
The Senator's interpretation of where we stand is correct. That is a deferral of the bill as opposed to a deletion of the bill. I am obviously aware of the costs that companies will face when they look to reopen. We will have to give that and many other matters consideration for that moment in which we look to reboot and then rebuild the economy.