Thursday, 10 September 2020
Criminal Justice (Enforcement Powers) (Covid-19) Bill 2020: Committee and Remaining Stages
I move amendment No. 1:
In page 5, between lines 8 and 9, to insert the following: "(2) This Act shall not apply to a residential unit within a licensed premises or a residential unit in the same building occupied by a specified person.".
This amendment would prevent gardaí from entering a residence in which someone who manages, owns or works in a pub or nightclub lives. It makes a clear distinction between someone's home and a licensed premises.It is important that there is a clear legal protection for those who live in a building which has a partial or full licence to sell alcohol. Without this distinction there is a concern that the residents would not have the full legal protection afforded to their home. Gardaí should not be able to enter an individual's home without a search warrant. Section 2 of the Bill does not set that out in concrete legal terms so this amendment would ensure that a person's right to due process is upheld.
I welcome the Minister of State, Deputy Browne, to the Seanad. I am not sure if it is his first time in the Seanad since his appointment but it is his first time here while I am presiding and he is very welcome. I congratulate him on his recent elevation. Would the Minister of State like to respond to amendment No. 1? Excuse me. Senator Richmond has indicated. It is my first time presiding over Committee Stage of a Bill.
I want to address briefly what Senator Ruane said. I understand, and it was expressed in the debate in the Dáil also, that there were concerns about the protection of dwelling places in this legislation. I understand also where the motivation for this amendment is coming from but I disagree that it is not clearly set out in the Bill. Section 2 clearly defines the relevant premises to which the legislation applies. It refers to any premises where intoxicating liquor is sold or supplied for consumption on the premises. That comes in tandem with two things. First, definitions within the Intoxicating Liquor Act specifically define the difference between the premises that is the subject of a licence and other functions that may happen in the same building or on the same site. As is the case in my family, for example, where the family lives above the pub, the residential section of that building is not part of the licensed premises. There can be no doubt whatsoever but that the law is absolutely clear that there is a distinction between the licensed premises that is part of a building and any other part of the building. The law in respect of the Intoxicating Liquor Act does not apply to anything other than the licensed premises.
In addition to that, there is a very clear and much-litigated provision in Article 40.5 of the Constitution, which refers to the inviolability of the dwelling. That is something I have stood by as a barrister for many years. The point Senator Ruane makes about gardaí not being able to enter a premises without a warrant is right but I say that is already a constitutionally enshrined provision and this Bill neither does nor could change the supremacy of that provision within the Constitution.
I understand the motivation behind this amendment. It is well-intentioned but it is simply not necessary. My concern, if it were to be accepted, is that it would introduce more confusion. It would suggest that there is somehow a way in which gardaí would be entitled to interfere with that inviolable dwelling place. It might be attached to a pub, above a pub or in the same building. There is not, and the clearest way we can make that obvious is by not changing the way the section is currently framed.
I am a co-signer and initiator of this amendment. That was a very useful intervention from Senator Ward. One of the problems is that there is not great clarity on it and concerns have been raised. We know that across Ireland, and particularly in rural Ireland, many family members live on the same premises. The language used in the Bill refers to a premises on which intoxicating liquor might be served. There are situations, for example, where it is regarded that a building or a pub is licensed but there is a separate dwelling space within it. I am not necessarily keen to press this amendment but I want to flag it as an issue.
It is important that clarity is reinforced in the regulations because there is a sense that this is an emergency power so we need to be crystal clear on the measure and not rely on, for example, the question of another relative who might live in an apartment above a premises so forth. People are very reluctant to say that a warrant is needed to go into a building in case they be perceived, because they want to co-operate, as blocking access to the premises. I am looking to those who will want to co-operate but who are very clear that there is a distinction between that part of a building which is used for the selling of intoxicating liquor and their residence as a specified person.I am proposing the amendment because of the circumstances in which the Bill is being taken. It is being rushed through the House with all Stages being taken today. We have not had the normal process of a Second Stage debate to tease out this issue. I hope the Minister of State can confirm that the regulations and the guidance to An Garda Síochána will include clear specifications as to what this law does and does not entitle gardaí to do with regard to premises. That would give reassurance and clarity to many people.
Before we go further, I apologise to Senator Ward who I think I referred to as Senator Richmond. I do not know why I did that but Deputy Richmond and Senator Ward are from the same neck of the woods. That may be an omen.
Like other speakers, I also have some concerns about this area. It is important that at this stage a full explanation is given of what these measures are expected to achieve. The great success to date in containing the virus has not been necessarily due to the actions of An Garda Síochána or the authorities but due to the willingness of the Irish people to follow the public health guidelines, as set out. We have to be very careful in introducing these measures that we do not lose that level of public support and these are not seen as Big Brother measures.
I am taken to some extent with the way the public have moved in recent weeks and months. I am concerned that the authorities are not allowing people to attend matches. That is public health advice and we must be conscious of it but members of the public are starting to drift, and I understand the reason. Many people who do not get into the grounds where matches are being played are sitting on walls or climbing ladders and trees if they have a vantage point. That indicates to me that people are starting to move on so we must be careful because we will not restrain people with more laws.
We will have to accept that some people recognise that they will have to live with the virus for a protracted period. We do not want to subject people to the law in a manner that deters them from buying in to the public health message. There is a history of that in our culture. In a bygone era, when people were prevented from holding classes and religious services, the hedge school and mass rock developed. We have to ensure that when we bring forward more laws and measures in this House we do so cognisant that the vast majority of people will do what is right and what is expected of them and that the laws should only be in place for enforcement on those who show scant regard for them. There are people who are doing that, and it is right that we bring forward these measures to address that. However, we cannot make criminals of the population at large. Having read the Bill, I do not believe the intention is to do that but my comments send a signal with regard to other rules and regulations being planned that we approach them in a careful manner that brings the people with us on this very difficult journey.
I welcome the opportunity to give clarity on this issue. The amendment put forward by Senators Higgins, Ruane and Flynn seeks to add a subsection to section 2 to provide that the Act will not apply to a residential unit on a licensed premises or a residential unit in the same building occupied by a specified person. I am aware that concerns were raised in the Dáil last week in respect of this very issue and the application of the provisions of this Bill to private homes.
The decision was taken not to put in place any measures to enforce Covid-19 regulations in private residences and this Bill is in keeping with that decision. The provisions of the Bill do not and cannot give An Garda Síochána powers to enter a person's home to enforce penal regulations. The Bill very clearly limits the application of the provisions to a licensed premises and clubs where alcohol is sold or supplied for consumption on the premises.
I assure the Senators that this amendment is not necessary. The licence for the sale of intoxicating liquor is confined to the place expressly mentioned in the licence and identified by a map lodged in court.The Circuit Court Rules 2001 provide that the applicant shall produce a map or plan upon which the premises the subject matter of the application are outlined in red, with the area to be licensed clearly delineated. The plan requires the layout of all floors on the premises sought to be licensed, including areas not intended to be used for business, such as residential accommodation, which do not then form part of the licensed premises and, therefore, the provisions of this legislation will not apply.
Section 18 of the Intoxicating Liquor Act 2003 and section 3 of this Bill empower any member of the force to enter a licensed premises for the purpose of detecting an offence under the Licensing Acts or under prescribed regulations in the case of this Bill. It also provides that any member of An Garda Síochána, whether in uniform or not, may enter, without warrant, any licensed premises at any time and there make such inspection, examination, observation and inquiries he or she may think proper for the prevention of detection of offences under the Licensing Acts. Therefore, An Garda Síochána may only enter the licensed premises identified in the licence attached to the premises. This power cannot be used to enter a residential unit, whether or not it is attached to a licensed premises.
I have outlined the reasons the proposed amendment is not necessary. I would also like it to be noted that it is not desirable as it could cause unintended consequences for other legislation where such wording does not appear. On that basis, I urge the Senators not to press the amendment. In my own practice, I have dealt with a number of licensing applications and I can assure the Senators that when making a licensing application it is very clearly delineated what is and what is not a licensed premises. This provision will only apply to the licensed premises section of a building. I assure the Senators that there is no issue but I welcome the opportunity to clarify that. Clarification is welcome and necessary. I also assure the Senators that An Garda Síochána will only ever rely on this legislation, when enacted, as a last resort and it will always work with publicans, as is currently the case.
I thank the Minister of State for the clarification, specifically in regard to the use and reference to the maps which are lodged in respect of licensed premises. In the interests of continuing and further clarity, will the Minister of State indicate if, in respect of the regulations, which I am sure everybody will be referencing in order to ensure compliance because many pubs will be looking to open, the clarification provided might be incorporated therein, made available as part of the regulations or, at least, referenced in the regulations?
I will clarify the matter with the Minister. I would be concerned that any further clarification would lead to confusion. As I said, the maps that are lodged with the courts in terms of licensing areas are exceptionally clear. They are detailed maps. For example, they provide more detail than is required for a planning application. Areas are clearly delineated in red. I have seen this issue arise in the Criminal Courts in terms of, for example, search warrants in regard to whether an area is a licensed premises or not. It is very clear. I would be concerned that if further clarification were to be provided in the regulations, it would lead to confusion. Also, the regulations have to be in compliance with the legislation.
I am satisfied that, legally, there is sufficient security but I am concerned about the communications aspects of this provision and I believe it is a matter that we need to keep under review. I ask that the Minister of State seek to monitor if there are circumstances whereby, for example, persons accept entry into a private residence because they believe they must under the law and that there is clarity in that regard. I believe more needs to be done in terms of communication on this issue. I accept that, legally, it is clear. I will not press the amendment because I do not think that legislation is the place to express my concern on this matter. I thank the Minister of State for his reassurance. I hope that others are made aware of the clarification he provided.
I move amendment No. 2:
In page 5, to delete line 14.
I welcome the Minister of State to the House and I thank the Minister, Deputy McEntee, for the full response in her closing remarks to some of the points I had raised in my Second Stage speech.
The issue on which I spoke most on Second Stage was the lack of clarity on the distinction between penal provisions and guidelines that are not enforceable through the criminal law. Amendment No. 2 speaks to that point. It seeks to amend section 3, specifically section 3(1)(a), to narrow and make clearer the power that is being provided to An Garda Síochána. It is an extensive power already in that it is a power to enter a relevant premises, which is, of course, a licensed premises under section 2, without warrant, to inspect, examine, observe and make inquiries and so on for the purposes of giving certain directions. The Bill, as drafted, references the purpose of giving a direction under section 31A(7) of the Act of 1947, which is the Health Act 1947, whether in relation to a relevant provision or otherwise. The amendment seeks to delete "whether in relation to a relevant provision or otherwise.", because section 31A(7) is already, in our view, broad enough to encompass all the necessary powers that the Garda should have.
My colleague, Deputy Howlin, put this point very strongly in the Dáil and I am conscious that there was extensive debate on this specific amendment in the Dáil, but its purpose is to be constructive and to provide greater clarity. We did support the Bill but we did so reluctantly, recognising it is necessary, as we did in respect of other emergency legislation. We think it is important when a Bill of this nature is providing additional Garda powers that we give it adequate scrutiny. We are not satisfied that there is a need for this very broadening provision through the use of the words "or otherwise" because this significantly expands the power under which a garda can enter a licensed premises. We do not believe this is necessary.
I read the Minister's response to Deputy Howlin in the Dáil. I note she said at a particular point in the debate that the reference to "or otherwise" is only with regard to section 31A(7) of the Health Act 1947. If that is the case, why include the words "or otherwise"? We are seeking clarification on that and to ensure we are not creating an over-reach in the policing powers provided. As I said in my Second Stage speech, this is an issue about which concern was expressed by a number of people and institutions giving evidence before the Special Committee on Covid-19 Response yesterday in the Dáil Chamber. I am conscious it is a real concern.
There is a particular concern with this legislation where we see section 1 defining the direction given under section 31A(7) of the Health Act 1947 in regard to a relevant provision. In section 31A, the section which we are seeking to amend, there is another definition of a direction which restates the definition in section 1 but adds to it the phrase, "whether in relation to a relevant provision or otherwise". We do not understand the need for this. If, as stated by the Minister in the Dáil, it is unnecessary because what the Government is seeking to do is give the power with regard to section 31A(7) of the Health Act 1947, why include "or otherwise"? We believe it is unnecessary. It is drafting that may cause difficulty because it appears to provide an over-reach in law.
I made the point on Second Stage that already we are seeking very significant powers provided, not just to the Garda but to the Minister for Health.We saw in SI 360 of 2020 extensive use of this power through the creation of 14 different guidelines, some of which are stated to be penal sanctions under section 31A, and some of which are not but which, as I said, were somewhat fudged in the sense that there was this reference to the bizarre entity of a civil offence which, of course, is not known to our law. In order to secure public buy-in, in order to ensure we continue with the sort of social solidarity we have seen and with high levels of public compliance and goodwill, as Senator Dooley has said, we need to ensure that we are acting with respect and trust and that we are neither antagonising nor undermining the spirit of solidarity. I do not see the use of the phrase "or otherwise" as being helpful in that regard.
We have seen immense sacrifice made by people across the country and yet we are seeing alarming rates of transmission rising, particularly in Dublin in recent days. That is a real concern. We all recognise the need for this sort of legislation in that context but we also need to ensure we have continued public goodwill and buy-in. Mixed messaging, confused messaging and overreach of criminal powers are not helpful in securing that sort of social solidarity. That is why I am pressing the amendment.
I support the amendment put forward by Senator Bacik. In fact, I would prefer the amendment put forward by Senator Bacik to my own. I recognise that this is work that Deputy Howlin very much brought forward and I commend the Deputy for the rigorous debate he brought to this issue in the other House.
The preferable option would be the deletion of this line. It is at a minimum unnecessary in that the definition of "direction" in the Bill, as was said, is already explicitly direction given under a relevant provision. The Bill states: ""direction" means a direction given under section 31A(7) of the Act of 1947 in relation to a relevant provision;". The word "direction" already covers it. It is at a minimum unnecessary but the greater concern is it sends a signal of ambiguity.
There has been reference to compliance. When all of the countries were being reviewed in April or May last as to how different countries were doing in their response to Covid, it is important to note Ireland fell down on certain areas. Our testing and tracing was not up and running, as it should have been. We did not have the ICT capacity that we needed. There were certain other areas, particularly, as we have seen, congregated settings which was well-flagged as a serious concern. Congregated settings, like direct provision centres and residential homes, were areas where we were being told Ireland was behind in terms of addressing them.
The area where Ireland scored highest in terms of response to Covid was on public engagement, and that was important. That was what brought our average up in terms of our response to the crisis in May. It is important that we keep that sense of public trust and part of that is clarity and a signal, such as a message on the words "or otherwise". My amendment supports the removal of the line as a whole but I focused on the two words which are a key concern for us, namely, "or otherwise". It is not clear what is meant by "or otherwise". It sends an unhelpful signal of ambiguity. It is a relevant provision or otherwise. If it is the case that "or otherwise" means the exact same as the relevant provision, which is simply measures under section 31A(7) of the Act of 1947, then we should be removing "or otherwise" as it sends a signal. However, "or otherwise" does not only mean that. It could mean anything. It is vaguely worded. It is open to different applications.
What I propose, in my amendments, is more wide-ranging. Perhaps the intention was to encompass some of the other regulations that were made under section 31A beyond subsection (7). If it is, for example, other aspects of section 31A that are envisioned as being subject to direction, that creates some concerns because section 31A involves regulations made by the Minister and it is wide-ranging, but at least we would know that it was related to section 31A and perhaps, for example, subject to the sunset clauses in respect of that section.My amendment simply states that we replace "or otherwise" with a narrowing to section 31A of the Act of 1947. As I say, the relevant provision covers section 31A(7). My additional text covers the wider parts of section 31A.
Moreover, I have another version of the amendment - one which I think is preferable - which clarifies that it should only cover the regulations that have already been made under section 31A. Obviously, under section 31A, the Minister may make new health regulations. It is difficult for us in this House to give carte blanchepowers to the Garda to implement regulations that do not even exist, that might be made under section 31A and the contents of which are unknown to us. My preference would be to remove this and narrow this Bill to the purpose for which it is set out, which is in relation to Garda actions in licensed premises and the specific areas under section 31A(7). My second preference would be that we would narrow it to section 31A(7) and other regulations which have already been made and are in the public domain and known under section 31A. A third, far less favourable option would be to narrow it to section 31A to encompass such regulations as are made under that Act on an ongoing basis. All of those options at least give some sense of what we are referring to whereas the vague use of language, such as "or otherwise", could mean anything. It could mean regulations under any area. There is no limit on what "or otherwise" might be. It simply says, under section 31(7), "whether in relation to a relevant provision or otherwise". We need clarity.
To be honest, Deputy Howlin probably argued it much better and clear than have I. The Deputy was very clear on the "or otherwise" language. It is unnecessary language. If it was removed, it would give assurance. If not, I would ask that they would accept, if they do not accept the amendment from the Labour Group, to consider my amendments as at least adding some narrowness or clarity.
There are other relevant issues, for example, the health and safety standards within licensed premises for staff. I do not know if these are intended to be covered by the "or otherwise" provision, but I imagine not. We are hearing about these new enforcement powers that we need to give the Garda but, before we broke up for the summer recess, we highlighted the fact that there were only 67 health and safety inspection officials under the Health and Safety Authority for the whole country. There were only 67 staff in charge of inspecting every workplace including licensed premises - a large number of new workplaces that will now come into play. In order to enter a premises, those health and safety officials rightly require a warrant and they require to be accompanied by the Garda. I would like the Minister to indicate, as we are giving these additional powers to the Garda to enter premises in respect of these regulations, whether there will be additional resources - perhaps even secondment - or designated resources, even including Garda resources, allocated to the Health and Safety Authority to ensure that the normal and necessary practices around workplace standards and health and safety standards and inspections are proceeding as usual, because I would be concerned at the redirection of Garda resources towards these regulations at a time when the tools we already have are not properly being used. I urge the Minister of State to accept either Senator Bacik's amendments or my own.
I did not have an opportunity due to the Committee on Procedure and Privileges meeting to participate in the debate earlier today. I do not want to make a Second Stage speech, but I am concerned that this measure is, in fact, overly complex to deal with a reaction to the Berlin D2 bar incident in Dublin and is not as necessary as might be thought.It certainly is not as urgent as might be thought.
One element that worries me is that because of the pressure on this House, we have now arrived at the position that one of our functions under law is to consider statutory instruments made under the Health Act 1947, especially the type of statutory instrument mentioned by Senator Higgins. As a result of the peculiar way in which work is being done in this House and the pressure to either sit, or not sit or to fix its business in one way or another, the regulations that were most recently made by the Minister, SI 326 of 2020 relating to various matters particularly covering the consumption of alcohol, have not been subjected to adequate scrutiny.
I echo the comments of Senator Higgins. Here we are giving the Garda powers to implement, supervise and enforce regulations, penalising those who do not implement, contrary to their duty, regulations that we have not really had the opportunity to consider or debate in this House. I can give an example. SI 326 of 2020 was made by the Minister for Health, Deputy Stephen Donnelly, on 31 August and it states, among other things, that the carrying on of certain businesses or services in certain relevant premises must be regulated in a particular way.
Looking through regulation No. 11 of that instrument, I made a shocking discovery. The regulation operates in respect of a casino or private members' club at which gambling activities are carried out and which is operated on a commercial basis. There is no such lawful activity in this country, full stop. One may not carry on commercial gambling in any private members' club. It is against the law and specifically the 1956 Act. One may not operate a casino under any circumstances, as it is plainly and simply illegal. There is no provision for casinos to open in this country.
This brings me to a slightly different topic and I hope it is not too distant from the subject of this debate today. There has been a scandalous failure on the part of the prosecuting authorities to implement the law relating to gambling in this city of Dublin. Under the Gaming and Lotteries Act 1956, no gambling type of casino or amusement arcade may operate without a resolution having been passed to enable it to happen. Nevertheless, surrounding us in this city and within a mile of here today there are many gambling casinos and establishments masquerading as private members' clubs where gambling is done on a commercial basis. The Garda Síochána is ignoring this development and has done nothing to stop it.
This strikes me as particularly horrific as the law has been there for donkey's years. Dublin City Council revoked the authority of anybody to have such a premises in its area 20 or 30 years ago. I remember former Deputy Pat McCartan as a Workers' Party councillor proposing the revocation of this in Dublin city. The law is being flouted for very big money in this city. Moreover, there are automated teller machines located in these establishments to facilitate the expenditure of money, usually by vulnerable people, in these wholly illegal operations. What have we found? The Minister for Health, Deputy Stephen Donnelly, is suggesting by inference that this is a lawful activity and members of the Garda can attend at these premises to ensure people are having a meal, while they gamble and drink. This is grotesque. It brings us back to the point made by Senators Higgins and Bacik. We should not in this House, on an emergency basis and without full consideration of all the implications, be passing legislation that brings into statutory effect regulations that we have not even had the chance to consider. I challenge the Minister for Health and the Minister for Justice and Equality to come to this House and defend the designation of casinos and premises where gambling is being done on a commercial basis as premises where gardaí can arrive and inspect to ensure meals are being consumed in combination with the service of drink. It is against the liquor licensing law to permit gaming in licensed premises.
I object to the fact this is being made up on the hoof by people who have never considered what is the law. I say it here that it is a crime to operate a casino in Dublin or to operate an establishment masquerading as a private members' club where gambling is carried on for commercial purposes. Instead of having a decent debate on all these regulations on the gambling laws and all the rest, here we are being told for the reasons set out by Senators Higgins and Bacik that we are giving gardaí the right to attend such premises not to close them, take away equipment or prosecute the people criminally operating these places, but to ensure they are handing out meals with alcohol, which they are not allowed to serve either in such premises. No licensed premises can permit gaming on its premises.
This is the nonsense of rushing through legislation of this kind and not allowing this House to meet while this statutory instrument was being produced by the Minister for Health, Deputy Donnelly. One of the problems is that today's sitting, as I understand it, sets the clock going for this House to consider whether the regulations made under the Health Act should or should not be revoked. This is a sitting day and the clock is now running on these regulations.
It is a crime to operate a members' club for the purposes of commercial gambling in this city. It is a crime to operate what is called a casino or even a gaming arcade with or without ATMs in this city. The Garda Síochána, the Minister for Justice and Equality and the Director of Public Prosecutions should prosecute those involved but, curiously, they seem to be protected by a kind of "do nothing, say nothing, shrug of the shoulders" culture, which I find deeply alarming. I wonder if money is talking in the political system. Is it the case that people with a lot of clout seem to be getting away with murder, breaking the ordinary rules of this State?
Many District Court judges have the wool pulled over their eyes all around Ireland in that because the Revenue Commissioners issue licences for gambling machines, betting terminals and the like, it is somehow legitimate to operate them without the say of the local authority. The people of Carlow, for example, are perfectly entitled to say they do not want casinos in their county. The process may be reversed if people adopt for part or all of their local authority area a resolution under the 1956 Act. Unless they do, it is criminal to carry on that activity. However, we find ourselves this afternoon being asked without due consideration at all to empower gardaí to go to these premises, ignore all the gaming machines and the rest, and the question is not whether it is lawful to serve alcohol in the premises, as it is not, and no gaming is permissible in licensed premises.The question they will ask is whether food is being served to an adequate extent. Gardaí will inquire into that utterly trivial detail. I find it deeply offensive that this is the way the Departments of Justice and Equality and Health are operating. The Department of Justice and Equality is the Department with overall responsibility for the Gaming and Lotteries Acts 1956 to 2019 and other laws relating to gambling. The Government, acting as a cohesive authority, is providing that gardaí can attend casinos to work out who is eating and who is not and is requiring that records be made regarding people who are engaging in criminal activity not to find out who they are or what they are doing, but to find out what they are eating. The Government is saying that it is a matter of great importance that all Stages of this Bill be passed today so that gardaí can carry out that function. I reject that completely. It is a sad day on which we have ended up having been so rattled and confused by events and so spancelled by difficulties in holding sittings of the Houses of the Oireachtas and by rulings of the Chair in the Houses, to which I will not go back, that we cannot even consider the real issues which lie behind this kind of law.
I agree with Senator Higgins. It is very strange that we should be invited to grant, on a very expedited basis - I will not go further than that but I believe it is a matter of rubber-stamping the Bill - powers to An Garda Síochána to carry out functions which it should not be carrying out at all. It is wrong that we should be bamboozled into this position as if asking some questions in this House has now become a crime. One such question is what is the status of a casino or private members' club at which gambling activities are carried out and which is operated on a commercial basis? If that is illegal, why are gardaí going to visit these places to check whether people are eating meals in them? If it is not illegal, will the Minister of State at the Department of Justice and Equality stand up in this House and say so? Will he say that it is legal to operate a casino in Ireland in the absence of any statutory provision? Will he say that it is legal to operate a so-called private members' club where gambling is carried out on a commercial basis?
This goes back to what Senator Higgins said; we are being asked to provide legal powers to enforce regulations which may be made in the future. We do not know what will come down from the Department of Health next. I do not blame the Minister, Deputy Stephen Donnelly, for not knowing that it is a crime to operate a private members' club where gambling is carried out on a commercial basis and where drink is available to members. I do not blame him or his officials for not knowing that because they do not know the law as it relates to gaming, lotteries and licensing. They do not understand it. I do, however, blame the Department of Justice and Equality for asking us to give An Garda Síochána the authority to enforce laws in a manner which effectively recognises that criminal activity can carry on as long as food is served in the appropriate way and people do not stay on the premises after 11.30 p.m.
As is obvious, I support the amendment. I will not waste any more of the House's time on this but it is a real shocker to me that a Minister could make a statutory instrument recognising that it is somehow lawful to operate a casino or private members' club at which gambling activities are carried out on a commercial basis and that the only problem is that gardaí cannot knock on the door and ask to see the till rolls to ensure that everybody is buying a meal of €9 value at the same time. There is a law and rich people in this country who have become very much richer over the last ten years are increasingly and more flagrantly operating these places without any enforcement of the law by An Garda Síochána.They will look at this provision in this regulation as the Minister for Health making provision for gardaí to come to their casinos and private members' clubs to demand to see till rolls to see whether food is being served. The law is being deliberately flouted and wealthy people are making a lot of money out of it. For some reason, nothing has been done to stop it for the past ten years. As a result, all one has to do is to drive along the quays or O'Connell Street or out to the airport to see all of these casinos. In my area of Rathmines, there is a casino of this kind. Not one thing has been done to stop them and today they are getting a pat on the back and being told to tighten up their catering arrangements. That is scandalous.
Senator McDowell started his contribution by wondering if he might have strayed a little from the topic that is before the House. It is fair to say that he did given that the regulations to which he referred are not made under this Act, although they are made under a section which is referred to in this Act.
What was most pointed about the Senator's contribution was a question he asked. He asked whether money was talking in the political system. That was an unfortunate question and I believe he should withdraw it and the associated comments he made. He asked this question as if these institutions did not exist when he was in the Department of Justice, Equality and Law Reform. It is regrettable that he would throw that around without a scintilla of evidence having been presented. It is merely a smear which he has thrown out as part of his contribution in the context of something that is not part of this.
I listened to the contribution of Senator Higgins and that of Senator Bacik when she moved the amendment. I entirely accept their legitimate concerns. I also watched the debate in the Dáil on the amendment brought forward by Senator Bacik's party colleague, Deputy Howlin. That debate was unfortunately hijacked by many others who had other agendas. The point the Deputy was making is sound and needs to be looked at.
Senator Bacik said that, when passed, this legislation will significantly expand the powers of An Garda Síochána. That is absolutely correct. There is no disputing that. It will significantly expand Garda members' entitlements to enter licensed premises to carry out inspections, observations and so on. I do not, however, agree on two other points. I do not agree that this particular paragraph of section 3(1) expands the powers beyond what is already in the rest of the Act because the Act as a whole seeks to empower An Garda Síochána to do things it might otherwise not be able to do, particularly under the Intoxicating Liquor Acts.
I also do not agree with the suggestion that it introduces ambiguity. I have complained for a number of years about the manner in which we manage legislation in the country. We do not consolidate it. This Bill refers to section 31A of the Health Act 1947, an amendment which was introduced in other legislation earlier this year. It can be argued that it is complicated and confusing to find the various regulations that are made but it is not ambiguous.
Senator Higgins made the point that she hopes this will only apply to the regulations already made. In passing the legislation, these Houses hand the Minister the power to make regulations. We devolve that power in a limited sense. It would not be reasonable to say this could only apply to regulations that have already been made. Part of the devolution of power from the Legislature to the Executive involves recognising that the Executive may make regulations in the future.For example, the regulations that have already been made under the Health Act, notwithstanding much of what has been said about them, do not introduce an ambiguity. It is fair, however, to say that it means this House cannot be certain what regulations will be made in the future. It may well be that Members think that is not an acceptable concession to make. I do not agree with that but it does not introduce ambiguity in and of itself.
I will say two things about what section 3(1)(a) does in the phrase "or otherwise", which is a broad phrase that introduces, as Senator Bacik has said, a broad, widened and expanded power to the Garda. It definitely does so but that is not necessarily a bad thing and I say that as somebody who appeared as defence counsel for a long time and who still does so in cases. I have a healthy scepticism about the expansion of Garda powers and I can see how sometimes quite old Garda powers are used in a particular way. I would say two things about how this particular paragraph of section 3(1)(a) applies.
First, we must remember that it only applies to licensed premises. A discussion has been had in this House already today about dwellings and other things. I appreciate what Senator Gavan said on Second Stage when he talked about the anti-State movement and that kind of dog-whistle politics we saw in some of the debate on this legislation already. I give credit to his colleague, Deputy Martin Kenny, who acknowledged that. In response to Deputy Howlin's amendment in the Dáil, Deputy Martin Kenny acknowledged that the matter of dwellings is not an issue but many people have spoken about it, and while they may have legitimate concerns among themselves, those concerns are not borne out by the law. The point is that this is restricted to licensed premises. I strongly feel that licensed premises are already highly regulated environments, appropriately so, and any licensed premises owner or operator should not be afraid of the monitoring of that operation by An Garda Síochána. It is entirely appropriate that it would have the powers to go in, inspect and observe. That is doubled in the context of the Covid-19 crisis. This legislation creates an environment, which definitely gives the Garda expanded powers to go in and look at that but in that context, under the provisions of section 31A(7).
Second, the language used in section 31A(7) supports what the Minister, Deputy McEntee, said at the beginning of this debate. In the last line of the paragraph it says the Garda: "may direct the person to take such steps as the member considers necessary to comply with the provision". That is much more the tenor of what is being provided in this Bill. It is policing by consent. Do we have an absolute guarantee that a garda will not act beyond that? No we do not but we have never had such a guarantee and the Garda operates separately from this Legislature insofar as it operates with the powers that are given to it by legislation. If it does so capriciously or in excess of those powers, there are other bodies that hold it to account for that. We must assume - and the evidence bears this out in the powers it has been given under emergency legislation this year and since this Seanad was formed - that the Garda will use them carefully, cautiously and with restraint. The Minister, Deputy McEntee, said this afternoon that every opportunity would be given to people to first comply with the regulations and then if they fail or refuse to do so, the consequences would flow from that. The language of section 31A(7) bears that out. The first action of the garda is to: "direct the person who takes such steps as the member considers necessary to comply with the provision." That is the tone of this legislation.
I understand the concerns that are being expressed by the movers of these amendments and I am not saying those concerns are invalid but in the context of emergency legislation that is designed to give enhanced and expanded powers to the Garda and is the subject of a sunset clause for its renewal on 9 November, it is acceptable to expand these powers in that context. I fear the removal of the "or otherwise" provision would restrict the Garda. If under section 3(1)(a), for example, a garda were to go into a premises after the fact in any prosecution, he or she would then be limited to only making a direction under section 31A(7). That is an unnecessary fettering of what should be an action driven by public health concerns to safeguard everybody in the community.This is in the context of what Senator Higgins said in her contribution about the strength of public compliance with these regulations in Ireland and she is right. Enormous praise should be heaped upon the Irish people for the manner in which they have reacted responsibly and with care for their fellow citizens to this crisis. This is not aimed at those people, however. It is aimed at the people who operate licensed premises inappropriately and unlawfully and who do so with impunity. This legislation is designed to give the Garda and the State powers to deal with those people through prosecution, only and if it is deemed necessary because they have refused or failed to comply with the regulations. While I might well have a reservation about a phrase such as this in other legislation in the ordinary course, looking at it through the prism of the crisis I feel it is proportionate and warranted.
I again welcome the opportunity to provide clarity on this matter. These amendments all propose to make a change to section 3 of the Bill. Amendment No. 2 in the names of Senators Bacik, Hoey, Moynihan, Sherlock and Wall proposes to delete the words: "whether in relation to a relevant provision or otherwise." from section 3(1)(a) of the Bill. Amendments Nos. 3 and 4, submitted by Senators Higgins, Ruane and Flynn, seek to delete the words "or otherwise" in line 14 of the Bill and substitute: "or in relation to such regulations that have been made under section 31A of the Act of 1947 previous to the date of the passing of this Act" and: "or in relation to provisions under section 31A of the Act of 1947", respectively.
Section 3, as the Minister, Deputy McEntee, outlined in her Second Stage speech, provides a power of entry for members of An Garda Síochána to "a relevant premises", as defined in the Bill, namely a licensed premises or a registered club, in order to check for compliance with the various Covid-19 regulations and to enforce those regulations where enforcement becomes necessary. The Garda is relying on various statutory and common law powers of entry to check for compliance with the regulations and to issue directions to comply. Section 3 of this Bill will establish a clear and specific power of entry for An Garda Síochána for these purposes. This will remove any ambiguity around the appropriate powers of entry to rely on. The new power of entry will apply to all of the Covid-19 related provisions which require a Garda power of entry to a licensed premises.
A suggestion was made in the Dáil that the provision could be used to provide a right of entry for gardaí to enter other types of premises for the purpose of enforcing penal provision of Covid-19 health regulations. Let me be unequivocally clear in stating that this is not what is provided for in section 3. The provision states that a member of An Garda Síochána may enter, without warrant, any relevant premises, which is limited to the types of premises that are provided under this Bill. Section 3(1)(a) seeks to ensure that a member of An Garda Síochána has the right of entry into a licensed premises or a club for the purpose of enforcing any penal provisions of the Covid-19 regulations, not simply those penal provisions that apply to licensed premises, and will be prescribed for the purposes of the Bill.
While the general purpose of this Bill is to provide enforcement mechanisms in respect of the penal Covid-19 regulations prescribed for the purposes of this Bill, the purpose of the "or otherwise" clause in section 3(1)(a) is to make clear that in a licensed premises a garda is not prevented from giving a direction to comply with any penal Covid-19 regulations, even if not prescribed specifically for a licensed premises. Therefore, the "or otherwise" clause provides clarification for An Garda Síochána, rather than ambiguity. This is not about giving gardaí any extra powers. Gardaí may already, under section 31A of the Health Act 1947, direct a person to comply with a penal Covid-19 regulation. We do not want to see an anomalous situation where a garda can, as now, direct a person on the street to comply with a travel restriction, for example, but will be powerless to give such a direction if the person entered a licensed premises because such a restriction would clearly not have been prescribed specifically in respect of a licensed premises.
On amendment No. 3, we can all agree that we do not know what impact Covid-19 will have in the coming weeks and months. There needs to be a degree of flexibility in this Bill to apply it to future regulations, if necessary. By including the words proposed in amendment No. 3, the application of these provisions would be limited to penal regulations enforced prior to the Bill being enacted only, which is not in keeping with the intention of the Bill.
Amendment No. 4, if accepted, would have the effect of significantly broadening the scope of the power of entry I have outlined above.At present, as I have explained, a member of An Garda Síochána may only enter a relevant premises without warrant for the purpose of giving a direction in respect of a penal regulation, as per section 31A(7) of the Health Act 1947. This amendment would mean that such entry could be for the purpose of any regulations made under section 31A of the Health Act, which would include non-penal provisions. I am of the view that this is unwarranted and would represent an unjustifiable extension of the powers given to An Garda Síochána. For these reasons, I ask the Senators not to press the amendments. I understand the amendments are well intended and I also understand where the Senators are coming from but, for the reasons I have outlined, I ask that the amendments not be pressed.
Policing in this country is governed by consent. We have, in effect, a community police force. It is unarmed. The purpose of this Bill is only to enforce the necessary regulations in respect of a very small minority of premises that fail to comply with them. One should remember the provisions apply only to licensed premises. It is appropriate that the Garda have the necessary powers, in the current emergency, to take the steps necessary to enforce all regulations.
Reference was made to resources. While this matter is not under my remit, I expect and hope that the necessary resources will be provided. I do not intend to get into a debate on gambling but it is proposed that I have specific delegated powers in this area. I am very much aware of the destructive nature of gambling, which is becoming more pervasive in society. I am happy to meet Senator McDowell at any time to discuss the serious issue of gambling.
I apologise as I should have congratulated the Minister of State on his recent appointment during my first intervention on Committee Stage. I am delighted to see him in here with us.
I have listened to the extensive debate on my amendment and I thank colleagues who intervened in support, namely, Senators Higgins and McDowell. I listened also to Senator Ward and the Minister of State but still do not see the need for the inclusion of the phrase "whether in relation to a relevant provision or otherwise". I accept that the phrase "in relation to a relevant provision" might need to be included but I believe the phrase "or otherwise" creates the difficulty. Having read the speech and response by the Minister, Deputy McEntee, in the Dáil on this very point, I simply cannot see a rationale for the inclusion of the phrase. Deputy Howlin described it as a catch-all phrase and I believe Senator Ward appreciated that. It is a dangerous phrase to use in legislation of this sort, which needs to be precise and clear.
Senator McDowell gave a very extensive speech on SI 326 of 2020, which I talked about in my Second Stage speech, as did Deputy Howlin. It is clearly relevant to this matter. Senator McDowell pointed out a particular anomaly. The key ambiguity — I do not apologise for using that phrase — in the regulations and in the phrase "or otherwise" involves the fudging of the line between a criminal or penal power and what is simply a guideline. There is a point to be made about why we include public health guidelines in regulations if, in fact, they are not enforceable through penal powers. That is a bigger issue. What is the point? There is no such thing as a civil offence. These are not offences. There are only guidelines. We have seen remarkably high levels of compliance across the State, and this was achieved by guidelines and without the need for criminal sanction. More powerful public health messaging ensures that people buy in through compliance and a sense of solidarity, or a sense of our all being in this together. That has been really important and we need to embrace it. Anything that undermines it is dangerous and that is why I will be pressing the amendment. We want to ensure that people continue to comply and that there will be goodwill and buy-in. Where we see overreach or a catch-all phrase being used without any clear rationale for its inclusion, we have to disagree and point out the dangers.
Having examined the wording again in more detail, I note it already entails a very clear extension of Garda powers. The Garda is empowered to enter, without a warrant, a relevant premises, as defined in section 1, for the purpose of giving a direction, also defined in section 1, under section 31A(7), which we inserted into the 1947 Act. With regard to the use of "whether in relation to a relevant provision or otherwise", "relevant provision" is defined in section 1(2) in reference to a new section 31A(6A), inserted by section 13 of this Bill. Therefore, there is already a very extensive network of authority under which the Garda is empowered to enter a premises without warrant, without the need to insert the words "or otherwise".For us, that is the crux of the issue. It amounts to an unnecessary overreach. We have not heard a clear rationale for its inclusion. For that reason, we will be pressing the amendment. We support the Bill, however, and we support the Government's efforts to ensure compliance. I have already expressed that, as have my colleagues in the Dáil. This is an attempt to be constructive to ensure we are not overreaching and thereby undermining what are, in fact, remarkable levels of goodwill and social solidarity in this country.
The Minister of State or Senator Ward referred to something the Minister, Deputy McEntee, said at the start of her speech. I regret the speed with which we are debating this and the fact that we have not been supplied with a copy of the Minister's speech. I wanted to check whether I have misheard something. Again, it is unfortunate we are taking all Stages of this important Bill in one day at such speed and without certain supports, such as a printed copy of the Minister's speech.
I thank the Minister of State for his speech and congratulate him on his appointment to his role. It is still not clear what exactly is meant by the phrase "or otherwise". If there is a specific intent in legislation, it is always better to state it.
The Minister of State mentioned amendment No. 4, concerning provisions under section 31A of the Act of 1947. He said it would potentially expand the intentions. That is certainly not my intention. What I sought to do was to set some limit. I would like to be clear about the Minister of State's interpretation of the phrase "or otherwise". The relevant premises is the subject of the first check, so we know already that it is only going to be relevant premises. My amendment would not change that; it would relate only to relevant premises. The Minister of State indicated that his interpretation of "or otherwise" is that it would relate to other public health regulations that have been made. Presumably such public health regulations would have been made under section 31A of the 1947 Act. My amendment, such as it was, sought simply to codify what seemed to be the intent, which I presumed was the Government's desire to be able to take action on other provisions under section 31A in circumstances where it is seen that the wider health guidelines might be in breach. That is what my amendment would allow for and what the Minister of State describes the phrase "or otherwise" as doing. What does "or otherwise" achieve that is either encompassed by the general provisions under section 31A of the 1947 Act or that goes beyond them? It would be good to be really clear on what exactly "or otherwise" encompasses. Could the Minister of State clarify whether it encompasses something less or more than what the section encompasses? That would be useful to me in determining whether I should press the amendment. I will be supporting Senator Bacik's amendment. On the issue I raised, I would really appreciate clarification.
I did not speak this morning. I just want to make a quick note. On most occasions I find myself agreeing with Senator McDowell, my learned friend and good colleague. I am very clearly of the view, regarding his observations on Clifden-----
Well done to him for being brave enough to do it.
More important and appropriate, I congratulate the Minister of State, Deputy James Browne, on his appointment. I was delighted that he picked Lahinch in County Clare for his holidays this year. I hope he enjoyed himself and that hospitality was extended to him as we would hope.
It is a pity that Senator Bacik feels it necessary to press her amendment to a vote.The consensus in the Chamber is striking. The powers that will be vested in An Garda Síochána are appropriate. We are living in difficult, challenging and strange times during which we must protect the majority. We must give powers to An Garda Síochána sometimes in order that it can protect the majority against the small minority who choose not to take this situation seriously.
The problem with this pandemic is that the virus is contagious and very dangerous. Unfortunately, a much higher percentage of those who contract Covid-19 than we would wish experience difficult and challenging symptoms. The after-effects, of which we are only now becoming aware, are very serious.
In order to protect the majority, sometimes we must have challenging and difficult legislation and question ourselves. The debate on the Bill has been very positive in that regard but I believe we need to show consensus in this House and support this legislation in its totality. I listened very carefully to Senator Bacik, who is, to be fair, very supportive of the Bill. I genuinely believe that her concerns are not well-founded. We need to send a clear message from this House that we are in unison with regard to vesting these powers in An Garda Síochána in order to protect the majority from a very small minority.
I, too, welcome the Minister of State. I congratulate him on his appointment. I thank him for his offer to discuss with me the question of gambling. I assure Senator Conway that I am not opposed to An Garda Síochána being given powers to enforce the law in general terms. I have no doubt that An Garda Síochána will apply the powers it is being given with discretion and reasonableness. All of those things go without saying. However, we must bear in mind that we are, in effect, giving powers to An Garda Síochána to enforce regulations we have not seen. There is something fundamentally problematical about that. It might have been half cured or remedied if it were the case that the statutory instruments under the Health Act, as amended, had to be approved in advance by the Houses of the Oireachtas. We are faced with a different situation whereby we will find out after a Minister has made a regulation on the recommendation of NPHET or another relevant body, albeit with the permission of the Government, what that regulation is. We will be authorising and requiring the Garda to enforce regulations which the Houses will not have seen. That is the point I am making. It is unfortunate that it is being done in that manner and that is why I sympathise with the amendments that are before the House.
On the issue of gambling, Senator Ward made the point that this has nothing to do with the Bill. I contend that it does in the sense that the Minister for Health, Deputy Donnelly, has made regulations controlling or requiring casinos and private members clubs where gambling is carried out on a commercial basis to be operated on the basis that where drink is served, that should be done in accordance with the regulations. The point I am making is very simply this and I hope Senator Ward will appreciate it. Either those premises are licensed premises or registered clubs or they are totally criminal. Either we are dealing with powers for An Garda Síochána to visit those premises or the Minister for Health is making regulations in respect of premises which lie completely outside the law.There is no provision in Irish law for a casino to be operated in Ireland. God knows, some of us who have been here long enough remember when there were efforts to open casinos and that led to unfortunate consequences politically. There is no provision in Irish law to operate a casino or a so-called private members' club where gambling is operated on a commercial basis. Such premises, which are dotted all over Dublin city, are criminal establishments. No club or institution of that kind may legally serve alcohol to anybody. That is the law, as the Department of Justice and Equality well knows. If the Garda is being given the power to go to relevant premises which are licensed premises or registered clubs, as is the case under the Bill, either the Department of Health has created an entirely new entitlement to serve drink with food in gambling clubs and casinos or, alternatively, such a power does not exist. That is the point I am making.
I will make one supplemental point for Senator Ward's information. When I was the Minister for Justice, Equality and Law Reform, I strongly and resolutely opposed all of these matters and pointed out that it was unlawful to carry out gambling in casinos or casino-like institutions and private clubs where gambling is carried out on a commercial basis. The law in that regard has not changed one jot in the 13 years since I was Minister. On the other hand, all across Dublin city, significant sums of money are being made by people who are flouting the law clearly laid down under the 1956 Act. Somebody, be it the Minister for Justice and Equality, an official in that Department, the Director of Public Prosecutions, the Attorney General, the Garda Commissioner or the assistant commissioner for the Dublin region, should enforce the law and stop the poor of Dublin being fleeced of their money by these illegal casinos. I am sure Senator Ward would agree that there are probably such institutions even in the royal borough of Kingstown, now known as Dún Laoghaire.
I hope that the Riviera county, as we now call it, does not have any such establishments. I have great respect for Senator McDowell and, in particular, his knowledge and experience in this area. I stated that this issue does not have anything to do with the amendment because it is not the case that the Minister's decision to make regulations somehow renders these establishments lawful. I make no comment on whether they are lawful as I do not know enough about the matter to do so and I like to restrain myself, where possible, when I do not know what I am talking about. However, I do not see the connection between the amendment and regulations - good, bad or ugly - that are made by a Minister who is not bringing this Bill through the House. I do not see how those regulations could in any way supersede the primary legislation from 1956 to which the Senator referred. Although there may well be a valid criticism of those regulations, I do not think the conclusion that can be drawn from them is that somehow there is an official acknowledgement of the lawfulness or otherwise of the kind of establishments mentioned by the Senator.
In an omission which I will put down to my newness to this Chamber, I forgot to congratulate the Minister of State, Deputy Browne, who is a professional colleague of mine and whose uncle is a friend and near neighbour of mine in Blackrock, although not a voter, I suspect. I am delighted to see the Minister of State in his position and I wish him well in his role.
Before the Minister of State responds, I too wish to congratulate him on his elevation to high office. I was delighted to share the third floor of Leinster House 2000 with him and am pleased that he has moved on to a portfolio to which he is entirely suited. I know he will bring about great changes in the Department to which he has been assigned.
I thank the Cathaoirleach. This legislation specifically applies to relevant premises, that is, licensed premises.It only applies to penal regulations. I say that to address amendment No. 4. I am aware that perhaps this is not the intention but the interpretation of the Department is that this amendment would expand the powers of An Garda Síochána to non-penal regulations.
The amendment would mean that such entry could be for the purposes of any regulations and, therefore, expand it beyond the penal regulations made under section 31A of the Health Act.
I appreciate that the intention of all Senators is to be constructive. It is not ideal that this matter is going through the Houses so quickly. Unfortunately, in the circumstances of the emergency, it is going through with the necessary haste, albeit a regrettable haste.
I now turn to the "otherwise" clause. The purpose of this is to bring clarity to the situation for An Garda Síochána. The concern is that An Garda Síochána could have certain powers at the front door of a premises but once they step in they find their powers reduced because they cannot apply other regulations on the basis that perhaps someone would put up an argument that the specific regulations-----
Garda are concerned that once they step into the licensed premises they may be prevented from giving a direction to comply with any penal Covid-19 regulations, if not prescribe specifically other than for the licensed premises. It is an attempt to give clarification but, as Senator Ward pointed out, one of the issues we have in this House is that so much of our legislation is not codified and we are constantly trying to jump from one Act to another and interpret one Act in another. That can cause unnecessary difficulties.
Any regulations made by the Minister for Health prescribing Covid-19 penal regulations for the purposes of the Bill must be laid before the Houses. Either House has, within 21 days, the power to challenge those regulations if it so wishes. There is still parliamentary oversight. I am aware that it is an act of the Houses that is not used too often but it is allowed under section 5 of the Health Act to allow the Houses the power to raise issue within 21 days.
I appreciate that all Senators are attempting to be constructive. I understand the concerns of Senators around the term, "otherwise". The term taken completely without the Bill has a very general application, but when taken within the context of the Bill and within the powers being given to An Garda Síochána it has a specific meaning and a specific application to the regulations. Yes, it will potentially apply to regulations that have not been made if they are to be made but in the circumstances that probably applies to any regulations given to a Minister, where the Minister has the power to make regulations, because he or she could always make future regulations. As I have already said, there is a power for either House to challenge those regulations within 21 days as they must be laid before the Houses.
Ivana Bacik, Frances Black, Victor Boyhan, Lynn Boylan, Eileen Flynn, Paul Gavan, Alice-Mary Higgins, Annie Hoey, Sharon Keogan, Elisha McCallion, Rónán Mullen, Niall Ó Donnghaile, Marie Sherlock, Mark Wall.
Garret Ahearn, Catherine Ardagh, Niall Blaney, Jerry Buttimer, Malcolm Byrne, Micheál Carrigy, Pat Casey, Shane Cassells, Lisa Chambers, Lorraine Clifford-Lee, Martin Conway, Ollie Crowe, John Cummins, Michael D'Arcy, Paul Daly, Aidan Davitt, Regina Doherty, Aisling Dolan, Timmy Dooley, Mary Fitzpatrick, Robbie Gallagher, Pippa Hackett, Seán Kyne, Tim Lombard, Vincent P Martin, John McGahon, Erin McGreehan, Eugene Murphy, Fiona O'Loughlin, Joe O'Reilly, Pauline O'Reilly, Ned O'Sullivan, Mary Seery Kearney, Barry Ward, Diarmuid Wilson.
I move amendment No. 3:
In page 5, line 14, to delete “or otherwise” and substitute “or in relation to such regulations that have been made under section 31A of the Act of 1947 previous to the date of the passing of this Act”.
I move amendment No. 5:
In page 6, between lines 26 and 27, to insert the following: “(6) Nothing in this Act prevents a licensee from putting in issue or a court from determining, in subsequent legal proceedings to which the question is or may be relevant—(a) whether the member who gave the direction in respect of the premises concerned had reasonable cause for suspecting the contravention of a relevant provision in respect of those premises,
(b) whether the steps which the member directed to be taken were reasonably necessary to ensure compliance with the relevant provision,
(c) whether the specified person had lawful authority or reasonable excuse for failure to comply with the direction,
(d) whether the giving of an authorisation under subsection (2) was appropriate in the circumstances, or
(e) any other question related to the lawful validity of the immediate closure order.”.
I do not intend to press the amendment. It was raised and debated in the Dáil. It simply seeks to add an additional layer of procedure of due process for licensees. I have read the Dáil debates and I am happy not to press it at this stage.
I move amendment No. 6:
In page 14, line 34, after “such date” to insert “, which must not be later than the 9th day of November 2021”.
Amendment No. 6 relates to the question of a sunset clause. While it has been said that a sunset clause is provided for in the Bill, it is currently stated in section 17(3) that: "This Act shall continue in operation until the 9th day of November 2020, unless a resolution approving the continuation of this Act has been passed by both Houses of the Oireachtas before that date and, in that event, this Act shall continue in operation until such date as is specified in the resolution." It has been stated that the powers being given under this Bill are very significant. Moreover, it has also been clearly stated, both on the Order of Business and throughout the course of this debate, that the time given to the scrutiny of the legislation and to debate on it has been extremely curtailed. We have been looking at all Stages of this legislation in the course of one day in the Seanad, which is an extraordinary situation and not good practice. Moreover, these are very significant powers. A motion or resolution passed by both Houses of the Oireachtas, which again may be taken with or without debate and which, given we know there is a Government majority, we have no doubt will pass if put forward by the Government, will not afford the same kind of opportunity for scrutiny and examination that proper examination of legislation does. As such I am concerned that we must not have any situation whereby, on 9 November of this year, a resolution could come before both Houses with a date - it simply says "such date as is specified in the resolution" - that is one or two years or whatever length of time away. There is no limitation on the time period by which these powers might be extended. While it must be done by a resolution of the Houses, given this is legislation pushed through in a hurry with very extensive and unusual powers, it is simply not sufficient that it can be extended indefinitely by resolution. I understand that it may be needed to be extended for a period of time by resolution.
My amendment, which is an extremely conservative one - I certainly do not want to see that there would be emergency powers for An Garda Síochána for a year - simply seeks to set one year as an outside limit. It says that the resolution which goes before the Houses of the Oireachtas in November, if it goes before them in November, and frankly I have little doubt that it will, will specify a date which shall not be later than 9 November 2021. I am just trying to set an actual sunset clause, an actual outside limit, on how far and how long these powers can exist before they have to go through not simply a resolution of extension but proper scrutiny and primary legislation, as is normal and proper.
A lot has been asked from us as parliamentarians, public representatives, and members of different parties and none in terms of co-operation to ensure urgent action can be taken. It is a reasonable ask that the Minister of State and the Government would give us the assurance that there is a genuine outside limit on how long these powers we are giving will extend for. If this resolution were to be put in place, it would give a sense of assurance that this is genuinely emergency legislation and not legislation which we may live with for a longer period of time. Again, a resolution of extension is one form of sunset clause, but because it allows for indefinite extension, we need to make sure that there is a limit on the power of extension with that resolution.
I thank the Senator for putting forward this amendment. Her amendment seeks to amend section 17 of the Bill to prevent the Houses of the Oireachtas by resolution from extending the operation of this Bill beyond 9 November 2021. The enforcement powers provided in this Bill are temporary measures to deal with issues of public health and public safety in licensed premises and clubs. As such the measures can only be used in respect of breaches of penal regulations made under the Health Act that are specific to Covid-19. The provisions of the Act will expire on 9 November. The reason for the renewable expiry date of 9 November 2020 is that this is the renewable expiry date for Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. This inserts section 31A into the Health Act 1947, which is the basis of the Covid-19 regulations made by the Minister for Health. As the purpose of this Bill is to provide enforcement mechanisms for prescribed penal Covid-19 regulations the expiry and renewal provisions of this Bill must be the same of those of section 31A of the 1947 Act. It will be for the Houses to decide whether those provisions should be renewed at a future date. As we do not know how long the public health response to the pandemic will require us to restrict the operation of licensed premises, we cannot therefore know just how long the associated enforcement powers will be needed for. I, like everyone in this House, am hopeful that life will return to normal by this time next year. However, we need to have flexibility to respond adequately and appropriately if that does not prove to be the case. This is a practical and necessary provision which places the decision to extend the Bill in the hands of these Houses. In short, this Bill can only be extended beyond 9 November 2020 where a resolution is passed by both of the Houses so in that respect the Houses can apply the brake at that point if they so wish.
I want to support Senator Higgins's amendment. Like others, I am not opposing the passage of this Bill. I certainly hope that one effect of the Bill is to help make it virtually impossible for the Government to defer the opening of pubs beyond 21 September, if it is to retain credibility, that is.
Senator Higgins rightly pointed out the context in which all of this is taking place. We have had a lot of necessary conversation already today about the rush with this legislation. Given that the pubs will not be reopening for another ten days, I do not understand it. We are at a stage where the Government needs to be very careful about how it is seen. Notwithstanding the emergency we are in as a country, the Government has to be very careful about how it is seen to operate. For that reason, the Senator is quite right to say that any extension envisaged by this legislation should be up front and should be understood to be for a defined period. While I accept what the Minister of State said about it being possible to put a date on it at a later date the Government needs to be seen to be conservative rather than excessive at this point.
It is a fundamental precept of democracy and the rule of law in any country that a government derives its legitimacy from the consent of the governed. It is also a fundamental principle that new laws should not be arbitrary, capricious, or unreasonable. We know all of that but there has been a direction of travel in what has been going on in this country with the Government's measures and approach and I worry we are getting close to the line where public trust in the measures is being put at risk. The public has shown forbearance in accepting the draconian powers granted by the Oireachtas to the Government and it is only right and proper that they should. The Opposition has given great latitude to the Government but there is a point where things get to their limit and it is in everybody's interest that we continue to all be in this together. That means that there continues to be public respect for what is going on.We all know the things that put at risk public respect, such as the arbitrary nature of the €9 meal requirement or the requirement that pubs retain records of meals, and the surreal report yesterday that when pubs reopen they will be forced to keep down the volume of their televisions as though that has anything to do with Covid. I am concerned about what the late Professor John Kelly called laughing stock measures, where there is a laudable public health goal but it could be reduced to a laughing stock because of the wrong approach being taken in the pursuit of those measures. We have moved in recent weeks from a change in tone from appealing to the better nature of citizens to act responsibly to maybe a more punitive approach that punishes behaviour that the Government wants to frown on. That is the wrong approach. It is with that dangerous drift in mind that Senator Higgins is absolutely right to insist on limits. Her proposal is reasonable.
The Minister has mentioned the resolution that will be in place but it is the detail of the resolution and the constraints around it that my amendment seeks to address. I am not opposing the fact of the resolution and I recognise the reason for the date and the fact that the date is aligned with the other provisions. I am trying to set a clear signal as to how far these emergency powers can be pushed by simple resolution and where the actual limit of this legislation that we are pushing through is.
The latitude we have shown has been mentioned. In agreeing to this legislation, we are agreeing to the enforcement powers on regulations that we have not seen. I seek assurances from the Minister of State that will be important. Will there be opportunity for discussion on the regulations? Will this House have an opportunity to discuss the statutory instruments, both those that have already been passed and those that are proposed, in regulations that are to be enforced under the legislation we are passing today. For example, live music was mentioned, and the question of live music outside where there is social distancing if it is not amplified. We are all getting questions on this. I am being asked if a lone guitar player who is not amplified can play outside. There may be regulations which we feel are not strict enough. I have very serious concerns about the 1 m issue because there is a very strong scientific basis for the 2 m rule and I worry about the slide towards 1 m. It is not about a gesture, it is about science and there is very significant research to support proper distancing.
Many people have raised the issue of ventilation as a core concern that does not seem to be addressed in the regulations. There are huge questions around the regulations which will be effectively enforced through the powers that we are giving today so we need to know that we will have an opportunity to address and discuss those regulations and that that opportunity will be afforded to this House.
Similarly, a simple resolution allowing for an extension that effectively sets another date, on 9 November, will not allow for the kind of nuance and debate and the questions on necessity, proportionality, sufficiency of the regulations and their enforcement. That kind of nuance is not available to us in a simple date setting mechanism but is available to us in actual legislation. If we do not know what the situation might be, if we continue to need special powers, regulations, penalties and enforcement mechanisms after 9 November 2021, it would be within our powers as an Oireachtas to ensure new primary legislation is put through before November 2021.If we are looking to an extension beyond a period of one year, I would prefer that we seek to ensure that we are getting the legislation right. It is not simply about shifting the dates and the goalposts.
I would also like assurance from the Minister of State in respect of the proposed resolution in November. If there is to be a resolution in November, will adequate opportunity be given to all of us to discuss it? When representatives from the Irish Council for Civil Liberties was before the Special Committee on Covid-19 Response yesterday, they referred to proposed regulations being notified in good time to the Oireachtas. They also said that if there is a proposal to extend or amend the emergency health legislation in force now, then the legislation should be put before the Oireachtas sufficiently in advance of 9 November to allow for proper scrutiny and consideration, including, if necessary, a debate in which Committee Stage rules would apply. It is important for us to know that such a resolution as may be put before these Houses on 9 November next is going to allow for proper and robust debate and not simply be placed as, say, an item to be taken without debate, with minimal debate or with group spokespersons speaking for five minutes and then a vote being taken. We need to be clear on this. I seek assurances from the Minister of State on the mechanisms of oversight that will be available to us. I also urge that he consider this reasonable amendment. I hope we do not have to extend these powers as far as November 2021 but, as an outside limit, that date is reasonable.
I thank the Senators for their contributions. We all hope that this time next year we will not be not in a similar situation as we are now with Covid. It might be a forlorn hope that we would not be in this situation by November. Any extension beyond November would have to be accompanied by a date in respect of any further extension. I would expect that any such date would be conservative, and rightly so. I have no difficulty providing further opportunity to discuss and debate any extension, especially due to the circumstances in which the Bill had to move so quickly through both Houses. I assume it would be a matter for the Business Committee. I understand the reasons behind the amendment, which is well thought out and well-intentioned, but I am opposing it because we do not know where we will be this time next year and because it would require both Houses to pass any extension. There are safeguards.