Speech on Criminal Justice (Enforcement Powers) (Covid-19) Bill 2020

10 September 2020

Ivana Bacik


I welcome the Minister, Deputy McEntee, to the House. I reiterate the concerns, as raised by others already, about the timeframe within which we debate this legislation. It is most unfortunate that we are taking all Stages of this important Bill just in one day. I made this point earlier on the Order of Business. It is also unfortunate that the debate coincides with our meeting of the Committee on Procedure and Privileges. I apologise in advance for having to leave the Chamber for that meeting straight after speaking.

Deputy Howlin spoke on the Bill in the Dáil. On foot of what he said, Labour will not be opposing the Bill. However, we still have concerns about it and we have proposed two amendments to it arising from those concerns. Our concerns derive specifically from the fact that this is emergency legislation. It creates criminal sanction and imposes draconian measures. I listened with interest to Senator Ward, who spoke about something being either draconian or proportionate. Of course, a measure can be draconian and yet proportionate depending on the circumstances.

Over two days, on 19 and 20 March, emergency legislation was passed. Under the provisions of this legislation, a great number of statutory instruments have since been implemented. I refer to the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. Everybody accepts that this Act facilitated the imposition of draconian provisions via its amending of primary legislation, the Health Act 1947. We all accepted then, as we do now, that, in the context of the Covid-19 emergency, it is necessary to enact laws that would otherwise be deemed unacceptable. We all accept and support the need for sunset clauses in these laws. I appreciate that there is a sunset clause in this Bill which refers to the date of 9 November, which is the same sunset clause as in the earlier preservation and protection and other emergency measures Act.

Grave, justified concerns have been expressed about the extension of penal sanction to certain measures through the plethora of statutory instruments that have been signed by the Minister for Health. We saw recently SI 326 of 2020, which contained a number of different rules, some of which are not stated to be penal provisions and therefore do not carry a threat of penal sanction. Yesterday, at a meeting of the Special Committee on Covid-19 Response, this matter was raised by a number of entities, including the Irish Council for Civil Liberties, the Irish Human Rights and Equality Commission and my colleague from Trinity College, Dr. David Kenny. Concerns were expressed about the way in which public health guidelines have crossed into the criminal law domain by use of the mechanism provided initially in the Health Act 1947, which was enacted to deal with a different public health crisis, although it was in some ways similar. That public health crisis related to tuberculosis. Under the Act, we saw this crossover being permitted.

Where we all accept there is a public health emergency, we must also ensure there are democratic checks and balances on processes. SI 326 of 2020 is currently the subject of a motion before the Lower House, and it gave rise to concerns because of what looked like constructive ambiguities or fudging of what were guidelines and what were to be penal provisions. Some Ministers suggested that civil offences may be introduced, although we know that there is no such thing in Irish law. Something is either a penal provision or it is not.

The Labour Party accepts that there is a major need for public buy-in in respect of public health guidelines. We would go further and say that we promote the concept of policing by consent. We think, and most people would accept, that public health guidelines are far more effective when they have public buy-in and people comply out of goodwill and belief in efficacy or effectiveness. That is what guarantees a level of compliance that is far greater than anything that could be achieved through the use of blunt powers under the criminal law. I say this not to suggest all our public health guidelines should carry criminal sanction - far from it - but we must trust that there will be compliance even without penal sanction and that where penal sanction is attached, it must be imposed in a clear and consistent way. It should be proportionate, even when the powers proposed are draconian.

Under the powers provided to the Minister for Health, over 20 statutory instruments have been introduced. There is confusion regarding which of these provide for penal provisions and which do not. It is clear that some have been revoked, having carried penal sanction, while others have not. Deputy Howlin provided some examples arising from SI 326 of 2020. These are well known to people. Others are perhaps not so clear. People are generally aware that they must, subject to penal sanction, wear face coverings on public transport.

There was less certainty about the rules around the green list and travelling and compliance with the restrictive movement requirements on return from abroad from countries that are not on the green list. These types of issues have created some level of confusion and, within the Garda, may make it harder to enforce laws and ensure there is compliance.

I looked at a Garda police union survey conducted by the Association of Garda Sergeants and Inspectors in June. The survey reported certain difficulties among gardaí on how to enforce certain measures. We need to ensure there is clarity. It is unfortunate that SI 326 of 2020 was introduced in a setting where perhaps there was confused messaging from Government around the measures to be introduced.

We should take heart from the fact that in general we have seen high levels of compliance, even where penal sanctions have not been attached to public health guidelines. Let us consider some of the figures around the checks that have been conducted by the Garda on licensed premises, which is the subject of this Bill. Since 3 July as part of Operation Navigation, the Garda has been checking licensed premises for adherence to previous regulations under SI 234 of 2020. Between 3 July and 23 August the Garda identified 165 potential breaches, but the force has reported a drop in breaches and a high level of compliance in general. Last week there were only 13 breaches, down from 21 the previous week. That bears out the point that, since lockdown rules were first announced internationally and here in Ireland, the experience everywhere, including here, has been that effective compliance in terms of dropping transmission rates is better achieved through soft mechanisms like consent, co-operation and the strong spirit of solidarity that we have seen. This includes solidarity with our front-line workers and the many people who have been bereaved through the awful incidence of Covid-19.



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.

We support this Bill. We have put in amendments. We are keen to ensure that we give it proper and rigorous parliamentary scrutiny. However, we accept that in a time of Covid-19 crisis these measures are necessary.

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 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.