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Dáil Éireann debate -
Wednesday, 2 Sep 2020

Vol. 996 No. 4

An tOrd Gnó - Order of Business

I call the Government Chief Whip who has a brief technical proposal to put to the House.

It is proposed, notwithstanding anything in Standing Orders, that the proposed arrangements from the Business Committee be taken now, to be followed immediately by Leaders' Questions.

On foot of the proposal, there are two matters to be decided. Is the proposal for dealing with today's business agreed?

In regard to today's business, as a longstanding Member of this House I want to raise a point of serious concern. Later today, we are to debate a criminal justice Bill which gives new powers of enforcement to An Garda Síochána and penalties for breaches of acts which are now to be criminal acts. This is a Bill that creates penalties for crimes that are not set out in it. It is a very unusual piece of legislation. In other words, it provides for penalties and enforcement procedures for crimes that are not set out.

When we were briefed on this Bill late on Friday evening I asked the Department of Justice officials when we would know the issues to be criminalised and they said that they did not know.

The crimes to be penally sanctioned are set out now in regulations published yesterday by the Minister for Health. The regulations published yesterday were a compendium, basically a recitation, of all of the regulations, some of which are penal and some of which are merely advisory and carry no penalty. The difficulty for the House is that insofar as this legislation relates to pubs and restaurants, relevant provisions, as far as I can determine from the regulations published yesterday, relate only to the keeping of records. In other words, in terms of what is being penalised, it will be a requirement under penal sanction to keep records of visitors to pubs and what they order.

We do not know what else will be encompassed by the regulations. When we take the Bill, the Minister for Justice, who is taking it, will not be in a position to answer our questions, no more than her officials were able to answer our questions, because she is not the Minister making the regulations. I seek the Ceann Comhairle's guidance as to how we can pass legislation that creates criminal offences that we do not know, and which can be renewed or changed tomorrow by new regulations.

There was considerable debate on this matter at the Business Committee. I understand that six hours is provided for Second Stage consideration of this matter. I note Deputy Mattie McGrath is indicating. Is it on the same matter?

On the same matter, this is farcical in the extreme. Section 13 gives the Minister for Health powers to introduce different regulations, as Deputy Howlin has alluded to. There is so much uncertainty around this area. We all bought into this situation in good faith back in March last and we did our best with regard to emergency sittings and legislation but this is a step too far. We are legislating to penalise and criminalise people and to further penalise a sector of the community that is already closed down and so it cannot break any rules. It should not be closed.

This is silly. The Rural Independent Group is vehemently opposed to this legislation. We are giving them these powers and we do not know if the Minister for Health will have the power even to authorise entry into people's homes. It is draconian.

Again, we will have six hours to debate this. We will try to get clarification on the point raised.

I echo the point about section 13 in particular. There is a big concern that this gives powers way beyond what has been publicly discussed as the purpose of this Bill. The Bill potentially could be a Trojan Horse for other measures which would give rise to significant concern and controversy and could very seriously infringe on civil liberties. I have deep concerns about that. The debate may not in fact cover those issues. We are talking about unspecified powers that could evolve into other things afterwards. We did seek assurances from the Government, but sections of the Bill essentially mean that all those assurances could come to nothing.

We ended the last session of the Dáil in a very acrimonious situation. We object to the speaking order that commences today arising out of the moves by the Government essentially to push some of the smaller parties and groups way down the speaking order. We are not going to let up in our objections to that. We believe it is an attempt to mute and silence the Opposition. We will continue to object to a speaking order that allows the Government to become the Government and the Opposition for the most important part of political debate.

The Deputy's point has been well made before.

We had a discussion at the Business Committee and some of us will be very unhappy with the fact that the process is not the best practice to start with. Some of us are living with that even though it is far from ideal. That has been pointed out and noted. One of the concerns was that there would be additional measures introduced in the legislation. Where that is not the case, the very fact that additional regulations can actually alter the intent of the Bill or at least the understanding of the offences is very problematic. We will not have an opportunity to input into those regulations. The law cannot be grey; it has to be black or white. A person either commits an offence or does not. This has the potential to cause terrific confusion although the legislation was supposed to be fairly clear-cut in its parameters.

We had a significant discussion and debate on this at the Business Committee. We facilitated a briefing, and an early draft of the Bill was sent to everyone with opportunities for amendments as well. We have also given a six-hour debate on Second Stage and have agreed to facilitate additional time for Report and Final Stages on Thursday. It is also important to say that there is priority required for this Bill. There are issues and further consequences around it not being progressed. We would like to see it progress to the Seanad next week. We are taking people's concerns on board. The Minister for Justice and Equality will respond to people's concerns on Second Stage. That is the purpose of Second Stage debate.

On speaking time, what was sought before the recess was to give back bench Deputies and Deputies on the Government side some increase in their proportionate speaking time, which they have a right to have in this House. There has been no reduction in the allocation of speaking time for any smaller party or group. It is important not to misrepresent the factual change that occurred prior to the Dáil recess. There is a zero percent reduction in speaking time allocation for smaller parties and groups. It is important we have a factual position on this. We have sought to work with the Business Committee, and it was agreed at the Business Committee, as the Ceann Comhairle will remember, that if we provided a briefing and early publication of the Bill, all Members of the House would seek to facilitate this because of its urgency and importance in the context of Covid and the response to Covid from the State.

If people want to delay this Bill for a number of weeks, it will have a public health consequence. It is important for people to have that in mind as well if they are to oppose the business today.

I have a point that may be best directed to the Ceann Comhairle. I thanked the Government for the briefing but those who gave that briefing were not party to the making of the regulations. This is a Department of Justice and Equality Bill and it will be taken by the Minister for Justice and Equality, who has no hand, act or part in the drafting of the regulations in question. The officials told us that. That is my difficulty. It is an unusual piece of criminal law that sets out penalties and enforcement procedures for crimes that are not in the Bill itself. We must have a very clear understanding of crimes that can take away a person's livelihood.

I do not take the advices kindly from the Government Chief Whip to suggest in any way that anybody in this House wants to cause any difficulties in combating Covid-19. We need to bring the public with us on this unified battle and we must have clarity with the criminal sanctions. We need to know what will be criminalised and what may be added to the list of criminal actions. Those questions are for the Minister for Health and not the Minister for Justice and Equality.

The Deputy's questions are absolutely legitimate. If I heard the Chief Whip correctly, he stated quite unambiguously that these questions will be answered in the course of the six-hour Second Stage debate. If they are not, I suggest to the Deputy we can reconsider the matter at the end of Second Stage.

It is the wrong Minister.

There is collective responsibility at the Cabinet. I am sure if we are told by the Government we will get the answers, we will get them. Let us not presume we will get the wrong answers.

We are going to have the wrong Minister.

There is collective responsibility.

We have had the lecture already. It is our duty to scrutinise this legislation and ensure the public can support it.

We are all trying to have a reasonable discussion and deal reasonably with this. Nobody is going to lecture anybody.

It is very misleading for the Government Chief Whip to stand up here and speak about fair play at a time when he and others have orchestrated over the past number of weeks a co-ordinated attempt to silence our group and Independent Deputies in particular. They have done everything to try to marginalise us and put us to the back in every way possible, silence us and keep us down. I have a message for the Chief Whip; specifically because of what the Government has done, it will now draw the wrath of the Independents, as it was underhanded, wrong, unfair and devious.

Deputy Healy-Rae-----

I want to out him today for what he did. He stood up a moment ago to make a bit of a speech. It was ridiculous and outrageous because we all know what he did over the past number of weeks.

The man or woman has not been born that could silence the Deputy.

I was going to make a point but Deputy Martin Kenny may be able to speak better to this. We raised concerns that the offences are not being set out in the legislation, but our understanding now is that the regulations are to be published before the legislation is fully dealt with and there will be clarity in that respect. It would be helpful if the Minister for Health could clarify this for the House today. Will we see the regulations before the passage of this legislation?

I was going to make the same point. I understand these regulations are to be published. We need a commitment from the Minister that this will happen immediately. We are dealing with legislation that may be quite appropriate for most cases but there is a difficulty where the actual offences are not clearly stated. Everybody would have a difficulty in this regard and common sense should apply. The regulations should be published before we move past considering the Bill.

There is to be a range of regulations, some of which will be germane to this discussion. Some of them carry penal provisions and some do not. It is not clear what is penal and what is not.

Does the Minister for Health wish to comment?

In response to Deputy Howlin's point, I note that the regulations make what is penal and what is not absolutely explicit. All the regulations are available online. The wording in the regulations states that "this is a penal provision". For example, I recently signed new regulations regarding gatherings in people's houses, weddings, sporting events and gatherings in theatres, cinemas, etc. None of those regulations includes the stipulation that it is a penal provision. In a very limited number of cases, including the three regulations associated with pubs, the regulation states that "this is a penal provision".

Under the Health Act 1947, there is a very blunt instrument which is not fit for purpose and which I am seeking to remedy. The 1947 Act only allows for a penal provision to carry a fine of up to €2,500 or up to six months' imprisonment. That is not fit for purpose for what we are trying to achieve with regard to Covid-19, and we are seeking to amend it with more appropriate penalties. However, the legislation before the House today is entirely within the remit of the Minister for Justice, and I will defer to her on all issues pertaining to that legislation, as I am sure the Deputies will understand. I can assure the House that there is full transparency, as there must always be, around what regulations are in force at a given time and which are penal provisions.

Question, "That the proposal for dealing with today's business be agreed to," put and declared carried.

Is the proposal for dealing with Thursday's business agreed?

I must object for the same reasons as apply to the speaking arrangements. We will see a situation where many of the Opposition parties and groups will not get to speak until two or three hours into a debate. That is a devious and underhanded attempt by the Government to silence the Opposition. In response to the Minister I note that unless there is a guillotine, backbenchers have always had as much speaking time as they want on legislation. The debate has gone on until the exhaustion of all speakers. It is utterly dishonest of the Government to say that it has not done something to gag, mute, undermine, neutralise and marginalise opposition voices. In a situation which is now looking very precarious as we face the threat of Covid-19, in which we need as much co-operation as possible, the Minister and the Government have made a big mistake. We are not going to let this go.

What the Government and the Chief Whip have done amounts to downright blackguarding. Some 14 groups will have spoken in today's debate before our group gets to speak. If the experience over the past four years and before has taught me anything, it is that Government backbenchers have a habit of not turning up. The Ceann Comhairle is well aware of that, as is everyone else here. As I said when we last debated this, this is a three-card trick. We will not be able to know when our group is to speak. We had a situation where one group would speak after another. Now the debate will pass back and forth between the Government and other groups. This is nothing but a deliberate trap to trick us out of our speaking rights and silence us. We will be raising this objection every day.

We will have to engage with each other as colleagues to find a more constructive and co-operative approach to the conduct of business.

Question, "That the proposal for dealing with Thursday's business be agreed to," put and declared carried.

With Members' indulgence I would like to make a few remarks before proceeding to Leaders' Questions.

I feel it is appropriate to do so at the start of our autumn term. As we are all aware, an event in Clifden gave rise to the Taoiseach's decision to recall the Dáil early. The Taoiseach, the Tánaiste and many other leaders and public figures have said, quite rightly, that the dinner hosted by the self-styled Oireachtas golf society should never have happened. Members, we all make mistakes. There is not one among us who, if he or she had his or her time over, would not change his or her approach to some issues or perhaps not engage with certain situations at all. That is perfectly normal. What is not normal, however, is for well-intentioned, intelligent and otherwise competent people to make a collective decision that is in itself fundamentally wrong.

Serious and indefensible breaches of public health regulations occurred on 19 August in Clifden. These breaches were either the result of collective crass stupidity or arrogant delusion, or both. The event and the circumstances which flowed from it have damaged public confidence in our public system, and confidence was not high at the best of times. Confidence in this Dáil has been damaged. As we gather today, it is incumbent upon us collectively to commit to working together to rebuild confidence in our parliamentary system. As legislators, we make the rules, but the rules apply to everyone and there can be no exceptions or special treatment. There must be fairness, consistency and solidarity as we tackle the scourge of Covid-19.

Those who seek to fan the flames of understandable public anger are not serving the public interest. Neither was the public interest served by the sort of conduct we witnessed here on 30 July, in our closing session. If public confidence in the Thirty-third Dáil is to be restored, then the public must be satisfied that the Dáil can conduct its business in a manner that is respectful, constructive and as collegial as any political system can be. Those who advocate crude majoritarianism are as misguided as those who would shout down alternative voices. Again, I put it to Members that we must strive to listen actively to each other, to work together and to demonstrate to the Irish public that our one and only objective is to serve the best interests of that public.

To conclude, I have asked the Oireachtas golf society to consider disbanding itself. I have also satisfied myself, on foot of research done by the Clerk of the Dáil, that that golfing society was never formally established by the Houses of the Oireachtas, nor has it ever in its 50 years of existence been subvented in any way by these Houses. I have asked the Clerk of the Dáil to establish whether there are any other groups in existence operating under the Oireachtas name and symbol and to report on this at the earliest possible date to the Committee on Procedure.