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Seanad Éireann debate -
Friday, 23 Oct 2020

Vol. 272 No. 2

Health (Amendment) Bill 2020: Committee and Remaining Stages

SECTION 1
Question proposed: "That section 1 stand part of the Bill."

Section 1 is the definition section of the Bill. One might expect that care would have been taken to provide proper definitions in section 1, rather than ignore a real problem with the Bill.

I pointed out to the Minister that in the last Seanad we had a Bill that had left Dáil Éireann in a shambles and arrived up in the Seanad. It was called by a certain person a "dog's dinner" of a Bill. As a result of that it was debated at great length, as the Minister of State will recall, over a long period of time. The reason was, there was a flaw in the Bill at the beginning. I have no doubt that the then Minister, former Deputy Ross, would have pushed it through against the Seanad's wishes under the Constitution had he got away with it, but he could not because the Bill was flawed. It was a peculiar thing.

Senator Ward has identified the flaw that I have identified here. I want to put it on record that it is for want of a proper definition in section 1 of who an "occupier" is. I also want it on the record that we are being asked to proceed with a Bill that will not work. Gardaí are being given bogus, dud, so-called powers, which will not work for the reason I will outline. On page 6 of the Bill the term "occupier" is defined as meaning "a person who — (i) resides in the dwelling, and (ii) is the owner of the dwelling". This is one type of person and this includes a tenant of the dwelling because an owner is somebody who has an interest in it.

An occupier is also defined as "a person who resides in the dwelling pursuant to a licence". I guess this is a licensee: a member of the family, a grandfather, grandchild, son, daughter, husband, wife, cousin, lodger or whoever it may be. This person resides in the dwelling pursuant to a licence. However, then there is a ridiculous provision "except where the owner of the dwelling also resides therein". The result of this in the text means that where the owner resides in the premises his or her son, daughter, wife, grandfather, grandson, guest, lodger or anybody, is excluded from the term "occupier". Consider the consequence of that. The owner is not present on some occasion and a house party is going on. The gardaí arrive at the door and ask for the occupier's name and address but he or she is not there. To whom do they give a direction to vacate the premises and tell everyone to go home who has not an entitlement to be there? That direction is to be given to the "occupier".

The occupier, however, is not there. Under this section the gardaí have no power at all to direct the son, daughter or whoever to direct everyone to leave because the section is drafted to define "occupier" as meaning either the owner who resides in the premises, or somebody else who resides in the premises provided that the owner does not reside in the premises. This is like driving a car straight at a wall. It is insane to proceed with this Bill without a proper definition of "occupier". It defies belief that Dáil Éireann was convened this morning to rush this Bill through.

The Bill has come here now, and a very serious flaw that drives the legislative car into the wall cannot be addressed because everybody in the convention centre has gone home for the next fortnight, or whatever it is. We are being told that we must pass this Bill in the next 50 minutes knowing that it has a massive hole in it and that the purported powers we are giving to members of An Garda Síochána will not work. They are a dud. They are a joke. They are a fraud as a power. If a grandmother owns the house and is not there and her son has 30 people in the house, he is not the occupier and cannot be told anything. The most ridiculous thing is that the poor owner of the house is presumed to be the occupier in any prosecution, which is even more ridiculous. The thing just does not stand up.

I appeal to the Minister of State, for whom I have great admiration because he is a reasonable man and has not been hoity-toity about this mistake in the legislation, to run up the white flag and to apologise because there is a problem here. The simple thing he could do is take an amendment now from the floor of the House. Perhaps Senator Ward's amendment would suffice to deal with this issue because he agrees with me that this is a significant problem with this Bill. The Minister of State should tell Dáil Éireann that it got it wrong this morning, that it sent us a dud and that we are not proceeding with it. Alternatively, he could tell the Dáil that we are proceeding with it by amending it to make sure it works and it does what it says on the tin. Instead of that, we get this autopilot business. The Minister of State has happily half-distanced himself from the use of the guillotine, as have other Ministers today. The number of apologies that have been made to the House today is phenomenal.

It is not the end of the world if Dáil Éireann has to be reconvened on Monday or Tuesday to deal with this Bill with an amendment from us. What is the end of the world is to deliberately pass a Bill we know is a dud. All that is required is the insertion of a proper definition in section 1, the definitions section, that is carefully drafted and would actually work. Instead, we have the diametric opposite. We have provisions that gardaí can give directions to the occupier of a house to send everybody home, but the occupier could be anywhere else but in the house and not present to receive this. Gardaí can demand of them the name and address of the occupier but, of course, the occupier is not a member of the family because the owner of the house resides in it.

There are other people with amendments but I plead with the Minister of State. It is grotesque to go on with a Bill when he knows there is a big hole in it, and to say his instructions from the Chief Whip are to bash on with this by driving the car into the wall and going to the panel beaters later. To say "I don't care, that's the way it is" is not the way to treat the Oireachtas in its entirety and it is certainly not the way to deal with a House that wanted to debate this. There is a whole stack of amendments down. Members are being told that they cannot amend anything and that the Government knows best. The Government wants to pass the Bill as it is, with this massive hole in it making it more or less useless. It is pretending to the public that when a Garda knocks on the door, he has a right to direct people to go home when he does not because the owner of the house is not present. That is ridiculous so I am opposing the section.

I regret to say that I agree with Senator McDowell. Amendment No. 20, in my name, has been mentioned. I emailed my amendments to the Bills Office on Wednesday night because they had to be in before midday yesterday. This means it was possible for the Minister to bring this amendment before the Dáil. I do not understand why the definition is not in section 1. I do not understand why the definition in section 3 is so convoluted and complicated given that there is a perfectly functional, much simpler and tried-and-tested definition that has not been challenged in the courts in section 151(5) of the Broadcasting Act 2009. That section deals with offences under section 148, which essentially involves television licence offences, and defines an occupier as being "a person who as owner, tenant or otherwise is in occupation, whether solely, jointly or severally, of the premises." It does exactly what it says on the tin, is what we all understand an occupier to be and avoids all of the issues discussed by Senator McDowell. I will not labour it beyond that but one of the things that is pervasive throughout this legislation is that it seeks to be more verbose, complex and wordy than it ever needed to be to get the job done.

I formally second Senator Ward's amendments. It is clear-cut. I was in the House with Senator McDowell when the dogs dinner came in and found myself in the very unenviable position of representing the Government but not agreeing with the Bill. It was extraordinary. Thankfully, the Bill did not see the light of day, which was because of the commitment of Senator McDowell, the father of the House and a couple of other Members, who were doggedly determined that the dogs dinner would never see the kitchen table.

We are under some time pressure.

The Senator might bear that in mind with her own contributions as well. I would point out to the House that it is not the end of the world if Dáil Éireann has to be reconvened - I very much agree with that sentiment - but I would like to hear from the Minister of State at this stage. If he wishes to consult his officials to get their perspective on it, he can do so. Senator Ward has identified a clear definition that has been tried and tested for a long time in dealing with television licences, which are very much a household issue. Obviously, there have been thousands of incidences where the definition could have been challenged but was not. We are better off getting the legislation right. Regarding the principles we are trying to espouse, most people, and I say "most" in inverted commas, are on the same page but we need to get the page right. I would like to hear what the Minister of State in consultation with his advisers has to say on the specifics of it.

I am happy to state that I am in support of the amendment and proposal from Senator Ward. Senator McDowell is correct. We all know the import of this Bill and what it is trying to achieve, but there is no point in sending gardaí out with a ham-fisted piece of legislation. Senator Ward's proposal is a perfectly reasonable one that will give the necessary powers. As Senator Conway said, the Minister of State could consult his officials. I do not think there should be a problem in terms of the Dáil coming back to address this. That is far better in terms of us getting this right rather than something embarrassing being let out of this House. The issue has been identified and I certainly support Senator Ward's proposal.

Did Senator McCallion indicate?

I would rather go through to the other amendments.

That is okay. I will bring in the Minister of State before we dispose of the section.

I appreciate where Senators are coming from regarding the amendments.

I really do not think I can accept amendments because we would have to recall the Dáil and I do not think we can do that at present.

Is it possible to propose an adjournment for two minutes to allow the Minister of State to-----

The Minister of State has indicated he is not accepting the amendment. It is the Minister of State's prerogative to accept or not accept the amendment.

The Dáil is still sitting.

The Minister of State has indicated he wants to go ahead.

Question put and declared carried.
Question, "That section 2 stand part of the Bill", put declared carried.
SECTION 3

Amendments Nos. 1 and 2 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 4, line 27, to delete "or" and substitute "and".

Both of these amendments are related to the same issue. Section 3 amends section 31 of the Health Act 1947 by inserting a new subsection 6C, which provides for a power for the Minister to make regulations relating to penal provisions, which is what we have been speaking about. It then prescribes a number of matters the Minister should take into account when applying or drafting those regulations or regulations relating to a fixed payment notice. The proposed subsection 6C(b)(iii)(I) states the Minister must consider the utility of providing for such additional means of enforcement of penal provisions as part of the effort on the part of the State to maintain and enable the graduated restoration of normal functioning of society or to avoid the imposition of restriction or further restrictions on society. It seems clear that what is intended is that the Minister will consider both of these. The Minister will consider maintaining the graduated restoration of normal functioning of society and avoiding the imposition of restrictions or further restrictions. The word that is used is "or". Therefore, it is disjunctive and creates an either-or situation.

The same is true in the following paragraph, which states the Minister may make regulations prescribing for the form of a fixed payment notice or the process to be followed by a member of An Garda Síochána when giving a person a fixed payment notice. It should be "and". It should be a conjunctive clause. Presumably, if the Minister makes regulations prescribing the form of a fixed penalty notice, he or she must also make regulations for the process. If it is either-or then the Minister cannot make regulations, by my reading, for the process to be followed by a member of An Garda Síochána. In these two subparagraphs it should be "and" instead of "or". We should be conjoining these two considerations and not separating them.

I want to speak in support of the amendments. They are incredibly sensible. The use of "or" or "and" can make a huge difference. In this case, to speak to amendment No. 2 first, it is absolutely clear the Minister should not be making a fixed payment notice without prescribing how it would be used and there is no point in prescribing how it might be administered if it does not exist. It does not function as a section unless that change is made in respect of "and".

With regard to amendment No. 1, both of the measures on maintaining and enabling the graduated restoration of society and avoiding the imposition of further restrictions are important, but I want to add a qualitative comment on this. It is a very important provision because it provides that the penalties should only be introduced where the Minister has really looked to see whether there are other measures or penal provisions that could be used appropriately. This is why it is appropriate there would be two checks. It is significant.

I am not averse to there being penalties. I am someone who wished we had pushed further towards zero Covid at the time. I support level 5. I support restrictions and taking measures. I believe this is a pandemic and requires seriousness but it has to be done properly. There is legislation on public order offences. We have heard comments about the fascist rallies and other related rallies that have been taking place. It has been baffling to me, I must say, in some of these cases, with regard to threats and harassment, because the Garda has powers to address situation of threats and harassment. It also has powers to give direction where it has a reasonable apprehension for the safety of persons. These are powers the Garda already has in law under public order legislation. These powers have not been used in situations, which have been extraordinary, where we have people menacing individual members of the public. This is my point. It is with regard to how the powers and policies that already exist are used. The safeguard of having double checks is important in respect of the issue, not just because I believe it is a drafting error but because it would be appropriate that there are very careful checks on whether there are powers we can already use before new penalties are created.

I realise the difficulty the Minister of State is in and I have proposed adjourning for a couple of minutes to allow him to have appropriate discussions on this. I appreciate the pressure the Minister of State is under but there is no point in the House passing dog's dinner legislation, to use the phrase being used all day. I am in support of the proposals of Senator Ward.

I second that proposal.

I propose that we adjourn for three minutes.

With respect, I am sorry but such a proposal would have to come from the Leader or Deputy Leader as per Standing Orders.

He is the Acting Leader.

We have the Deputy Leader here so it is a question for Senator Chambers to make the call.

I propose a three-minute adjournment.

Is that agreed? Agreed.

Sitting suspended at 7.37 p.m. and resumed at 7.40 p.m.

I propose, with the agreement of the House, that we suspend the sitting until 8 p.m.

Is it not the case that, according to the Order of Business, the question is to be put at 8 p.m.?

The question is to be put at 8.15 p.m. We will be back before then.

Sitting suspended at 7.53 p.m. and resumed at 8.03 p.m.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.

Amendments Nos. 3 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 3:

In page 4, between lines 36 and 37, to insert the following:

"(e) The Minister shall, before prescribing a fixed penalty provision in regulations under this section, recognising the emergency nature of these regulations, consult with and seek approval of a majority of the members of both Houses of the Oireachtas.".

This is getting ridiculous. There have been two occasions in one day where, because of the way legislation is being shoehorned not just through this House but both Houses over the past few weeks, we have identified major problems in a Bill. We are expected to give our trust to the Minister to deal with these matters. These amendments seek that any further regulations would come back before these Houses, which is absolutely essential, given the calamity we have already seen today, with a former Attorney General saying the legislation is as useless as an ashtray on a motorbike. Earlier, the Data Protection Commission indicated the legislation relating to the mother and baby homes had similar issues. These Bills will affect millions of our citizens and we are expected to entrust the Minister with further regulations, given what we already know are significant holes in the legislation.

The proposals we have made in these amendments would mean further regulations would have to come back before these Houses. It is imperative we allow that to happen. I implore the Minister of State to give serious consideration to this and the other House to be allowed to oversee future regulations arising from this and other legislation.

Given what we have just seen, we must be mindful of our staff in the Oireachtas as well. The staff in the Bills Office who are involved in this process of producing legislation are under huge pressure. Independent Senators have correctly said they do not have the support of parties and they are trying to get through all this legislation. We have clearly identified a major problem in the way we are trying to legislate with this. If we do not agree the two amendments, which would allow us the space to properly scrutinise regulations arising from this legislation, it will bring shame on all of us. I ask people to give this serious consideration. This has gone beyond a joke.

The Labour Senators support these amendments, which seem sensible to us to ensure a level of parliamentary scrutiny that is sadly lacking due to the rushed nature of this debate, as we have seen with the somewhat farcical proceedings we witnessed, as Government Senators point out flaws in this Bill. It would be amusing if it were not so serious given the powers prescribed in the legislation are draconian. We all accept the idea that we are in times demanding such draconian measures. Nonetheless, we need time for adequate parliamentary scrutiny. The proceedings tonight demonstrate just how important the amendments are. In particular, when we are considering the introduction of fixed penalty provisions, another layer of parliamentary scrutiny should be included.

There has never been a more apt moment to call for a mechanism involving appropriate scrutiny. It is as clear as day how important it is that there be scrutiny and value in that scrutiny offered by all Members. I strongly support these amendments. The flaws in this Bill would have been identified and dealt with if we had proper Committee and Report Stages. If there are mistakes in the regulations made by the Minister, we should not see them acted out against persons but rather ensure they can be scrutinised. I support these amendments and ask the Minister to bring his regulations for scrutiny to the House.

The other element of scrutiny is, of course, a review. Let us please not be asked to renew these regulations or legislation without a review of how they have operated or how the flaws we have heard about could be addressed. It is another crucial element because there are very simple elements of renewal set out here that are of concern.

Section 6D, which is to be inserted into the 1947 Act by this section of the proposed Bill, allows the Minister to make regulations "prescribing such one or more penal provisions as are specified in the regulations to be dwelling event provisions.". The proposed section 6E states, "In proceedings for an offence under this section consisting of a contravention of a dwelling event provision, it shall be presumed, unless the contrary is proved, that the occupier of the dwelling in respect of which the offence is alleged to have been committed was the event organiser.". I have made my point about an occupier and I will not repeat it but the effect of these sections is to allow the Minister, by regulation, to reverse the onus of proof in criminal proceedings as a matter of choice. That is an impermissible delegation of legislative power. As the Minister has designated the offence as such in a statutory instrument that has never been looked at by these Houses, the onus of proof would be reversed against people.

There is a big constitutional issue there and I am not the only person who has said that. My colleague from the Bar, Deputy McNamara, has voiced this view as well. Just because this is emergency legislation the Constitution does not fly out the window.

I thank Senators for their views and their amendment but I must oppose it. As a Member of the Oireachtas, I understand the motivation behind this amendment. However, we are living in exceptionally challenging and unprecedented times. As I said in my earlier speech, the Government is battling Covid on a number of fronts, including enforcement. The ability of the Government to make regulations reflecting its decisions on public health measures is vital if we are to succeed. Right now, we are at level 5 of the Government's framework and it is vital that people comply with guidance and advice. To ensure that, we need adequate enforcement. If I were to accept this amendment, there would be a significant lag in bringing enforcement powers to bear on public health guidance and advice. In that context, it is important to recognise that the driving force behind the Bill is not to penalise. In fact, the sanctions we are discussing are less grave than those currently available to the Garda. The aim of the Bill is to enhance compliance with public health measures. The Bill already provides that the Minister for Health must consult with the Minister for Justice and Equality and any proposals for regulations with fixed penalty provisions would be brought to the Government for consideration. In addition, section 5 of the Health Act 1947 states, "Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly ...". I reiterate that, as a Government, we are focusing on educating, encouraging and engaging with people. As I have said on numerous occasions, enforcement is the last resort. I reject these amendments.

I do not accept what the Minister of State is saying. I am not even sure he believes what he is saying, if he were honest with himself.

Is the amendment being pressed?

Amendment put:
The Committee divided: Tá, 13; Níl, 21.

  • Bacik, Ivana.
  • Black, Frances.
  • Boylan, Lynn.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • McCallion, Elisha.
  • McDowell, Michael.
  • Moynihan, Rebecca.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Byrne, Malcolm.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Gallagher, Robbie.
  • Garvey, Róisín.
  • Kyne, Seán.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Annie Hoey and Elisha McCallion; Níl, Senators Robbie Gallagher and Seán Kyne.
Amendment declared lost.

The time permitted for this debate having expired, I am required to put the following question, in accordance with an order of the Seanad of 22 October 2020: "That section 3 is agreed to in Committee; in respect of each of the sections undisposed of, the section is hereby agreed to in Committee; the Preamble and Title are hereby agreed to in Committee; the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed; and the Bill is hereby received for final consideration and passed."

Question put:
The Seanad divided: Tá, 21; Níl, 7.

  • Byrne, Malcolm.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Gallagher, Robbie.
  • Garvey, Róisín.
  • Kyne, Seán.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
  • Ward, Barry.

Níl

  • Black, Frances.
  • Boylan, Lynn.
  • Gavan, Paul.
  • Keogan, Sharon.
  • McCallion, Elisha.
  • McDowell, Michael.
  • Warfield, Fintan.
Tellers: Tá, Senators Robbie Gallagher and Seán Kyne; Níl, Senators Michael McDowell and Sharon Keogan.
Question declared carried.
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