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Seanad Éireann debate -
Friday, 6 Nov 2020

Vol. 272 No. 4

Criminal Justice (Enforcement Powers) (Covid-19) Act 2020: Motion

I move:

That Seanad Éireann resolves that the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 (No. 14 of 2020) shall continue in operation for the period beginning on the 9th day of November, 2020 and ending on the 9th day of June, 2021.".

I thank Senators for the opportunity to address this resolution, the purpose of which is to extend the sunset clause in the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020. Senators will know that section 17 of the Act provides that it shall continue in operation until 9 November 2020 unless a resolution approving its continuation has been passed by both Houses of the Oireachtas before that date. A resolution was passed by Dáil Éireann on Wednesday evening.

Covid-19 continues to pose a grave threat to public health, as well as a threat to the economic and social life of the country. We are clearly in a second wave of the virus and the country is in lockdown under level 5. It is a time of great uncertainty for all our people, whether that concerns their health, their jobs, or their general well-being. We must live with Covid-19, at least until a vaccine is found and distributed widely throughout society. That is why in September, the Government brought forward its medium- to long-term strategy, Recovery and Resilience 2020-2021: Plan for Living with Covid-19, which spans a period of six to nine months.

At times, the Government has been accused of causing confusion and for not having clear and easy-to-follow rules and regulations. While it is very difficult in a pandemic to be certain about anything, the strategy document gives us a clear path forward. That strategy is due to take us forward to next summer. This House has already resolved that the amendments effected by Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 should remain in operation for the period beginning on 9 November and ending on 9 June 2021. Today, I am proposing that the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 should also be extended for the same period to 9 June 2021 . For clarity, it is important that the extension to the Health Acts, the Covid-19 regulations and the powers contained in this Act all remain in alignment for the same period.

By way of background, the Act that is the subject of the motion was signed into law by President Higgins on 11 September 2020. It provides An Garda Síochána with statutory enforcement powers regarding licensed premises and registered clubs to ensure strict adherence to public health measures on such premises where alcohol is sold for consumption. It has not yet been in force for two months. In that time, nothing has changed regarding the virus. The threat still exists and emergency measures that are time-bound are still required to deal with that threat. This remains a critical time for our country and we will continue to have a special responsibility to comply with the public health guidelines and regulations. We know that none of this is easy. Everyone is impacted upon in some way. The vast majority of people and businesses in Ireland have complied with public health restrictions during this difficult period because they understand that doing so is the most effective way to keep us all safe.

Senators will be aware that under level 5, all pubs and restaurants are currently closed. When Minister McEntee addressed the Dáil on Wednesday, she expressed the hope that they will soon reopen if we are successful in tackling the virus, and I share her sentiments in that regard. I am very conscious that many restaurateurs and publicans have spent money to make their premises safe for their customers and staff, but also to play their part in the national effort in dealing with Covid-19. They have reduced capacity, put in safety screens and have played their part in contact tracing. The vast majority of publicans have fully complied with all the restrictions.

It is because of that great effort that the Government believes it would be completely unfair if the small minority who wish to flout the law and to put their customers and staff at risk, are allowed to do so without consequences. The Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 gives gardaí the power to enter such premises and encourage that small minority of publicans who are acting contrary to public health regulations to bring themselves into compliance. If they refuse, An Garda Síochána has the power to act swiftly. An Garda Síochána has played a huge role in the national effort to suppress the virus. The front-line engagement of its members with communities and vulnerable groups has been recognised by the Policing Authority, as well as the challenges and complexity of policing in a pandemic. The graduated response to policing, which has been adopted from the outset, is based on the Garda tradition of policing by consent.

Gardaí are continuing to use the "four Es" strategy to engage, educate, encourage and only to enforce the relevant provisions as a last resort.

We know that the vast majority of licensed premises have been acting in full compliance with the relevant regulations. Under Operation Fanacht, the number of crime incidents recorded by An Garda Síochána in regard to licensed premises between 3 July 2020 and 24 October 2020 was 281. Fewer than 100 of these incidents have taken place since this law was enacted on 11 September 2020. These figures have to be seen in the context of the varying restrictions which have applied at county and national level since 11 September. Levels 3, 4 and 5 have applied at some point in all counties. Should a publican decide to ignore the current restrictions and open a licensed premises, An Garda Síochána has the power to immediately take action.

I think we can all accept that Covid-19 will be with us until well in to 2021. In this context therefore, and in line with the Government's Recovery and Resilience 2020-2021: Plan for Living with Covid-19, the emergency measures contained in the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 will continue to be required. The Garda authorities have reported to my Department that An Garda Síochána has not as yet issued any closure orders or compliance notices. Consideration has been given to using each of the powers contained in the Act but they have not been required to date. When the Minister for Justice, Deputy McEntee, introduced the legislation in Dáil Éireann, she said that it would be her preference for the small minority of publicans in question to come into compliance and she hoped that no pub closures would be required under this Act. She was very clear that enforcement should be and would remain a last resort. The entire purpose of this legislation is to enhance compliance and that is exactly how it has worked out so far.

There is no immediate penalty for a licensed premises that may be flouting the regulations. The first thing that happens is that the licensee or the manager is given a direction to come into compliance. The penalties in the Act only come into play if the publican fails to comply with that direction. Just because no pubs have had to be closed does not mean that this Act is not a success. On the contrary, the threat of enforcement actions has probably been all that was needed. The Garda Commissioner is of the view that it is because of the existence of these powers that those publicans who wish to flout the law have actually come into compliance. Consequently, that is why it has not been necessary to issue any closure orders so far. The Commissioner has strongly supported the continuation of these powers into 2021.

I assure Senators that the Minister and I fully expect that the graduated policing approach we have seen to date in all aspects of dealing with the pandemic will continue to be pursued by An Garda Síochána. By continuing to provide these additional enforcement powers to the Garda, we will see an improvement in compliance with Covid regulations by those who operate pubs, restaurants and registered clubs, in the interest of public health and in a way that will facilitate the gradual reopening of society.

The matter before us today is relatively straightforward. I am proposing the continued, but time-limited, application of legislation which was scrutinised and passed by this very House less than two months ago. The circumstances leading to the enactment of the legislation have not changed. The virus has not changed. It remains a serious threat. The Government is firmly of the view that extending this Act is both necessary and proportionate. We believe it is entirely appropriate for clarity purposes to align the dates of various related instruments. The provisions are carefully balanced and follow a human rights approach to address the small minority of licensed premises that are showing disregard for public health requirements.

Important safeguards have been provided throughout the Act, in particular through the requirement for involvement of a Garda member of at least superintendent rank, the time-limited nature of the closures, and the various possibilities for an appeal. Providing for these additional, limited powers until next June will enable the Garda to move swiftly to address those cases in which licensed premises and private clubs breach public health regulations. In conclusion, I commend the resolution to the House. I thank Senators for their attention, and I look forward to hearing their comments on the matter.

I support the motion that the Minister has put before the House in circumstances where I think it makes perfect sense. The legislation passed by this House a number of months ago was introduced in a context where some Members in both Houses complained of what they considered to be its draconian aspects. There were legitimate concerns about that, and there were also some who raised concerns that were not pertinent to the Bill such as, for example, the invasion of dwellings and other such issues. This legislation does something extremely important but also quite straightforward. It empowers the Garda, as the Minister of State indicated, to enforce measures regarding the limitation of business, in particular for pubs, but in many other areas as well, and ensures there is an enforcement mechanism available to the Garda so that those considering transgressing the law know that if they do, there will be a consequence. That is tremendously important. It is a principle that runs throughout our laws and the justice system that there will be consequences for people who break the law.

I do not think the consequences are draconian, as was stated in the discussions during the initial passage of the Bill, but one of the measures that was included in the legislation, probably in a small part due to the contribution of Members, was the idea of a sunset clause. The Ministers who have brought this legislation through the House put that in specifically to allay the fears of people who felt that this was an opportunity to slip into law greater powers for the Garda than it should have on a long-term basis. The sunset is 9 November and the proposal in the motion is to extend it to June of next year. In the Dáil there was a motion to change it to February but much as I regret to say it, I do not think we are going to be finished with Covid by the time February comes around. I hope we will be by June, but I could not say that with any confidence either.

The point of the sunset clause is to allow these Houses to consider whether there is a justification for continuing the legislation. In arriving at that decision, I suggest that we need to look at two particular points. The first is whether the measures in this legislation have been used erroneously, unjustifiably or with a strong arm by the Garda. We have heard the Minister say that is not the case. In fact, not a single closure order has been made. The Garda Commissioner has also indicated that he believes the presence of these provisions in the Act are important from the point of view of allowing the Garda to take the steps it needs to take.

The second point we need to consider is, in the event that they have not been used, whether they are necessary. I refer the House to the remarks the Minister of State made in respect of his contact with the Garda. The Garda has indicated that the measure has helped with compliance. It has not been the case that the powers have had to be deployed but the fact that the powers are "in the back pocket", as it were, if and when gardaí need them, has helped in achieving the compliance of businesses and publicans throughout the country. They are the two considerations that make it very clear in my mind that we should extend the measure.

There is general agreement that the measure should be extended, whether it be to February or June, but June seems to me to be a sensible distance away for two reasons. When this legislation passed just a few months ago there was quite a short period before the sunset clause had to be dealt with by the House. June is far enough off that we will have a much better picture of how this legislation is being used between now and then. Second, we can look it from the point of view of where we are with the virus. The Minister has said the virus has not gone away and currently we are in a situation where there is a regrettable, albeit necessary, restriction of business activity throughout the State. Everybody wants to move past that as quickly as possible and we hope that will happen as quickly as possible, but I have no confidence that we will no longer be dealing with these issues early next year. We would all like to think that by the time June comes around, we will have a much better handle on the situation, be it through the reduction of the virus in Ireland or some other option such as a vaccine being available to us, but nobody can make such promises. It seems to me that the motion before the House is a sensible one. It reactivates this legislation and allows it to endure until June of next year and it gives us an opportunity, when we reach 9 June, to take stock and decide again whether it is necessary and reasonable in all the circumstances as we see them at that point in time to renew the legislation, or not as the case may be. However, at this juncture, looking into the future it seems entirely reasonable and necessary to renew this legislation. I commend the motion on that basis.

I will be supporting the amendment, which has been tendered to this motion, to extend the legislation only to a date in February. I do so because I think it is important for this House, and Dáil Éireann for that matter, to keep the Government accountable and keep all of the emergency measures under constant review and that we do not find ourselves effectively being run by Government-imposed regulations on lockdowns without adequate accountability.

Senator Ward says that on 5 June we will have plenty of time to look at this legislation and see whether it needs to be extended. The same applies to a date in February as well.

There is no reason this legislation should be extended on the basis that it might be necessary to have it in March, April, May or June. Let us see whether it is necessary at that stage. Members referred earlier to the American elections and people have been commenting in the media about the failure of the pollsters in America to gauge what was going to happen in terms of the voting intentions of the American public. It may be there were shy Trump supporters who did not reveal their intentions to pollsters but, also, and this is what is relevant to this legislation, I think the second wind he got was largely due to the fact he was selling to the American people an optimistic message and was engaging with them on the necessity to minimise economic damage. That probably explains why many people, surprisingly perhaps in terms of their origins or their place in American society, liked the message and thought the doom merchants were a bit too pessimistic. It is a fine political art to navigate between realism and pessimism but I genuinely believe the economic, social, cultural and health damage being done by the lockdowns is huge.

I heard on BBC radio today that the number of children under the age of one in the United Kingdom who are being battered and abused, with some of the abuse ending up in death, has increased by 20% during the lifetime of this lockdown. That is only the tip of the iceberg on the basis of anecdotal evidence of a high rate of suicides in Ireland. God only knows what it is like to be cooped up in a house with an abusing spouse, child or whatever.

The mental health of Irish people needs to be respected as well. While appeals are now being made to the public to use hospitals and not to allow their ordinary health to be prejudiced for want of going to hospital, there is and will be a very serious death toll in terms of untreated cancers, psychiatric conditions and the like arising out of the measures we have put in place. That is why we must keep the Government constantly accountable to these Houses. We can decry what happens in Westminster now and then but at least those Tory rebels had a real opportunity to express a view about the latest measures that are being taken in Britain, whereas in Ireland we are going on autopilot where the Government chooses and the most that can happen is an ex post opportunity to challenge what is going on.

On the question of the particular remedies in this legislation, it is the case they would be frightening to a publican or the owner of a licensed premises. They are tough measures but if someone was running a licensed premises in a way which was a danger to public health, perhaps tough remedies are necessary. We must also bear in mind some aspects of what is going on at the moment. Senator Ward will know that on the Main Street of Blackrock there is an open-air drink bazaar going on with not very much social distancing. Publicans in Blackrock are keeping an open-air fair going on selling drink in this Dublin area. I am against shebeens. I agree with the Minister that it is only fair that publicans should all be on the same level playing field.

It is extremely important that the Irish Government keeps up optimism and that the Oireachtas, in particular, operates so as to ensure that regulations are not put in place on a broad-brush basis which are having seriously damaging effects for which there will be no accountability in the end.

I welcome the Minister of State back to the House. I, on behalf of the Fianna Fáil Party, will be supporting the extension of the sunset clause up until 9 June, with the current one due to expire on 9 November. This allows us to give gardaí additional powers to enter public houses, and private houses for that matter, regarding incidents of lawbreaking. It is not often we introduce legislation in this House where we hope it will not be needed. This legislation is an example of that.

Publicans deserve huge credit for the way they have conducted themselves throughout this entire pandemic. They did not have to wait for Government regulations or advice to close down their premises; they acted in advance of that. They deserve huge credit for the mature and sensible stance they took back then. Since then, they have gone through, like many others, a horrible time, both financially and every other way, because they have mortgages, families, children going to college and various expenses they have to meet. They have been through a very difficult time. They got some good news and reopened but before doing so they put their hands in their pockets and spent a great deal of money making sure their premises were fitted properly and safely with the necessary materials to ensure the safety of people who visited their premises. They were just getting going and making a very good job of it when, unfortunately, they had to close again. I have huge sympathy for them. I sincerely hope we get to a point very quickly at the end of the current phase 5 restrictions where we can find a way that allows publicans, and many other businesses for that matter, to open their doors again in a safe manner.

I also wish to raise the issue of the gardaí. They deserve huge credit for the manner in which they conducted themselves since Covid-19 came upon us. I understand the Garda roster has been altered in such a way that more Garda personnel are now out on the streets during the day. That is clearly visible as we drive the highways and the byways of this great country of ours or as we walk down our streets. There is an increased Garda presence. That is a positive aspect. If one positive was to come out of Covid-19, it is that the additional personnel on the ground during peak times has allowed the public, in many ways, and the gardaí to reconnect again in a manner that has been a hugely positive experience not only for the gardaí but for the general public. The manner in which the gardaí have been selling this message has allowed the transition we are currently going through to go very smoothly. They deserve great credit for that.

As we move on and, hopefully, get out of level 5 as soon as possible in a safe manner, it is incumbent on the Government to analyse - we are always learning about this disease - and learn from the areas where we can relax the regulations and rather than use a sledgehammer all the time that we would be a bit more discreet and directive in how we ask businesses to conduct themselves going forward. We are all learning that many businesses can successfully trade and open and still adhere to the regulations. We need to move to that space very quickly.

I agree with this legislation. I am heartened to hear from the Minister of State that the Garda is more or less saying it has not as yet used this legislation. I am not surprised because the vast majority of publicans are very sensible and public-minded individuals. I compliment them for that. I am happy to support this legislation and bring it forward to the House.

I welcome the Minister of State to the House. I also welcome the opportunity to speak on the motion to extend the legislation which we debated in the House barely two months ago. I checked and we debated all Stages on 10 September. It was unfortunate at that point that we were debating all Stages in one day. There have been several different occasions on which we have had that experience. We did not, however, oppose the Bill on that occasion but we did put down amendments. On behalf of the Labour Party, I spoke about our concerns as to the powers it contained.

We all recognise there have been high levels of compliance. It is useful the Minister of State's speech contained the figures on enforcement. Clearly, licensed premises have shown high levels of compliance. I noted the Minister of State said nothing has changed in regard to the virus in the two months. We have all perhaps become even more aware of the threat Covid-19 poses in the two months since. What has changed is that licensed premises are now all closed and we have moved back to a level of lockdown not experienced since the spring and early summer. There is the welcome difference with level 5, however, in that schools and childcare facilities have remained open.

We have seen the threat building across Europe to the point where we are seeing much higher levels of restrictions in place across different European countries than were in place in September. Perhaps in September we had a different view of how we could experience living with Covid-19 than we do now. What is more pressing and what has changed is the urgent requirement for a clear and coherent exit strategy to be put in place. It must be a strategy beyond simply rolling levels of lockdown, rolling periods of restrictions on businesses and our lives with the ongoing effect and impact that these have on people's mental and physical health, as well as on our economy and our society.

On 23 October, when we last debated an extension of special powers by the Government, I said we needed to see that exit strategy built on an investment in rapid testing, increased resources for contact tracing and a much greater commitment to an all-island strategy. What has changed in two months is that we have seen frightening levels of infection spreading rapidly across Northern Ireland. There is now a far greater clarity about the need for an all-island strategy. We need to be looking at an approach which has been adopted successfully in democracies such as Australia. Other colleagues spoke earlier about Taiwan. We need to look at countries which have adopted a much clearer sense of purpose around an exit strategy and a zero-Covid strategy where the virus can be suppressed to a point where any outbreaks can then be rapidly contained when one has investment in rapid-testing and contact-tracing strategies. That approach has to be taken on an all-island basis. Otherwise, we will be faced with an endless series of lockdowns and endless extensions of different restrictive procedures.

We did not oppose the Bill in September, despite our misgivings and concerns. We will not oppose the extension of powers today. However, we support the amendment to shorten the period for which the powers are to be extended. An extension to June is too long. We should look at coming back to the Houses in February, not because we think the threat of the virus will have been eliminated. It will absolutely not be the case. Sadly, none of us thinks that any more. We are all cognisant that this threat will remain with us well into 2021. It is because we recognise the need for the parliamentary scrutiny of extensions of powers. That has to be acknowledged.

It is disappointing that the Government did not see fit to accept the amendment. In any other setting, these would be seen as draconian powers, along with the powers contained in the other emergency legislation which we have passed. We have not seen, unfortunately, similar lengthy extensions on, for example, the ban on evictions. We have not seen the introduction of statutory sick pay, which the Labour Party has called and pushed for and the need for which has been acknowledged by the Government. For all of these reasons, there should be a shorter period of extension, although we will not oppose the principle of the extension of the powers given the threat, which is an international one, we all face.

Colleagues have spoken about the US election. As we all await the hopefully imminent declaration of President Joe Biden - again, that sounds good - the Covid context of the US elections has had a significant impact on the way in which people voted there, for better or for worse. It will be a massive challenge for incoming President Biden to deal with.

We have seen extraordinarily high levels of compliance from licensed premises, the subject of this legislation. That has to be commended. The way in which the Garda has approached policing and the use of draconian powers has also been commendable. All of us recognise that the Garda has not gone in with a heavy-handed approach. It has recognised that our best way of dealing with Covid and bringing infection rates down is through public buy-in and social solidarity across communities, not through the heavy-handed or crude instrument of criminal law.

I move amendment No. 1:

To delete “9th day of June, 2021” and substitute “9th day of February, 2021”.

I second the amendment.

I welcome the Minister of State and this debate. Talking is a good thing. Reviewing is a good thing. Engaging in the parliamentary process is a good thing and that is the purpose of this amendment. It is to bring what are essentially emergency powers back to the Oireachtas in order for these institutions to have the opportunity merely to review, reassess and provide the Government, as well as both Houses, with a punctuation point at which to look at these powers again.

Senator Bacik got to the nub of the issue when she said these powers are in place. We have had the debate and the discussion around the elements and nature of the said powers. The amendment seeks to give us a breathing space to review them.

I concur to a point with Senator Ward in that none of us expects to be through the worst of the Covid-19 crisis come 9 February. That is not what this amendment is about, however. We had extensive contributions from colleagues across the House on this morning's Order of Business, talking about the real need to live with the Covid-19 crisis. This is an evolving development and changing situation. The sunset clause in February would allow us to react to the changing and evolving nature of that situation in a much more convenient, sensible and earlier fashion. In any crisis, particularly one of health and epidemiology such as this, I cannot see the logic for opposing a review of these powers in February.

I do not want to labour the point. The amendment speaks for itself. Colleagues have carefully outlined the rationale for such a check. I believe there is a rationale to it. We could debate the merits of the powers, their draconian and emergency nature, compliance and the rest of it. At the heart of this has to be the ability afforded to us. Seven months to June is too long for these powers to go unchecked and unreviewed without that punctuation point.

On that basis, I hope the Minister of State and colleagues on the Government side will think again. This amendment is intended in good faith. It is intended with a real sense of sincerity because it would strengthen our ability collectively to deal with this crisis. No one is saying that these powers, as they currently stand, would end on 9 February.

What would happen is that we would have the review. The Minister of State imagined the lowering of some of the figures. Senator Bacik alluded to the crucial need for further all-Ireland co-operation, co-ordination, responses, strategising and communication in dealing with this crisis, and I agree with this. I note the British-Irish Council met today and it was also a point coming from its plenary meeting. If we are serious about taking on board all of these points, working within the confines of the existing powers, bolstering all-Ireland co-operation and co-operation between these islands, then I hope that February gives us ample time to come back and, I hope, in a changed, reduced and improved dynamic we can look at the powers again. I hope the Minister of State will accept the amendment. Unfortunately, unlike my colleague, Senator Bacik, if the amendment is not accepted I do not feel Sinn Féin can support the unchecked extension of these powers for seven months into June next year.

I do not wish to repeat the points that have already been made but a central acknowledgement is that An Garda Síochána has not issued, as has been said by the Minister of State, any closure or compliance order. On one level this vindicates the legislators who supported this two months ago and on another level we can say the Members of this House and the Lower House who opposed it, some in colourful terms, are not vindicated and were wrong. I do not see them as being wrong. People are never wrong when they are vigilant. Who was to know there would be such buy-in to date? It is a significant emergency power that remains on the Statute Book. A cautionary approach is always the best. Stakeholder buy-in is very encouraging and I include the people of Ireland because they have not demonstrated a demand to tempt publicans into going down the road they ought not to travel.

I hear the calls and concerns of a number of Senators. The points are well made, in the sense I know it is an unfair question as to why June and it seems to be arbitrary and selected without consideration. If there was any justification for it, I would understand it. I cannot say why not February either. Less is more in this instance. As Senator McDowell mentioned, there is also the element of hope. I am a little bit more hopeful than some speakers. Perhaps in seven months' time there might be a way out of this, and I am not so sure about legislating today with a fait accompli that we are in it until at least the middle of next year, which we might be but I am not giving up on it and why should we?

I commend An Garda Síochána on the front line. I meet them most days on the way home. I am not sure whether the resources are best used by slowing up the traffic for such long periods of time. When I get to them I always have a chat with them and they are great and very pleasant and professional. There should be joined-up thinking, especially if there are roadworks on major motorways. Why put a Garda checkpoint a mile further up the road after disgruntled motorists have had to navigate through and waste time on roadworks? Why should they then meet a Garda Síochána checkpoint?

I hear the bona fide and genuine concerns with regard to emergency legislation and I feel that less is more. I would like to have seen more consultation before it was put before us. There seems to be no justification and because of this we feel June is a fair call. I have not seen compelling reasons it has to be June . I am slightly disappointed we have arrived at June but I understand the bona fides of the Government. Overall, there is movement in the right direction. I concur with a great deal of what Senator Ward has said. I have not seen an argument or compelling reason that it has to be June, apart from that kicking it into next year sounds good. We should not be so easy about kicking emergency legislation to seven months away. I am flagging this to the Minister of State. I know he is doing his very best, as is the Government, but I have a concern as to why we arrived at a date seven months hence.

I have tabled an amendment to the motion that would also set a date of February. It is identical to the amendment tabled by Sinn Féin and when Sinn Féin presses its amendment I will support it. I want to be clear, because there have been a diversity of reasons put forward on this, that my reasons may be different from those of others in the House, including Senator McDowell. I do not propose a date of February because I believe that by any stretch we will have dealt with the Covid-19 crisis by February. We are facing a very serious situation regarding Covid-19. It would be irresponsible to encourage or chase in any part of the political system the narrative that has been put out by the potentially exiting President of the United States and others, which suggests things have been exaggerated and seeks to put a pejorative framing on health experts. Language such as "doom merchants" is not helpful. In fact, the greater concern we have had with regard to Covid-19 has been merchants. At points, including last June, when Ireland had lowered the number of cases to a point where zero Covid was in sight and a possibility, there was by the then Taoiseach and now Minister for Business, Enterprise and Innovation, Deputy Leo Varadkar, a decision to accelerate and move towards a more speedy opening of a variety of establishments. This was unhelpful. We heard the idea that pessimism and realism are somehow a point, and that pessimism is the medical side and realism the economic side. Let us be clear; realism comes from the science. The Minister, Deputy Varadkar, was praising an optimistic policy in Belgium, which now sees more than 1,000 people in ICU and, potentially, cases having to be taken to Germany. It sees doctors and nurses who themselves have Covid-19 having to continue to work because the health system is at such a crisis point. In the United States we see that 250,000 people have died. I do not understate the crisis. If anything, the Government has itself understated and underinvested in the actions needed to address the crisis.

My concern and opposition to the June date is because I do not believe the failures have been from lack of powers for the Garda. There have been failures of policy. It has been a failure with regard to a quarantine policy and giving adequate isolation supports, particularly for people in congregated settings, be it residential care, direct provision or family hubs. There has been a lack of clear and proper systematic tracing and tracking, not simply looking forward to new contacts but looking back to where cases originated and making sure asymptomatic spreaders are identified and that there is support for people. Instead of putting individual responsibility on everybody when everybody has very different circumstances the State needs to step up the support for people who have shown a spirit of compliance. These are the failures.

Let us be clear that when the legislation was introduced it was so the pubs could open. It was not because there was a huge crisis of cases in pubs, it was to allow the pubs to open so that the Government could still say it was sending a firm message. We need to move past this type of messaging and get into actual action and policy. I want it reviewed in February not because I believe the Covid-19 crisis will be gone or that the virus will be gone but because I believe we will need to see whether it is contributing or simply an empty threat that has not been founded.

The Government is not allowed to have suspensions of rights just in case. Such suspensions need to be necessary. If what we are discussing is not being used and turns out to not be necessary, proportionate or relevant in February then, perhaps, we can allow ourselves to have a proper discussion about measures that might be more useful. It is appropriate that this be reviewed after three months. The Government has not earned a seven-month blank cheque in terms of yet more emergency powers. We want to see a shift in policy.

I must comment on mental health because the argument in that regard is being used a little bit. The mental health message to those many individuals in society who are at high risk or who have underlying conditions is to say that the convenience of society in general is more important than their survival. This is important. It is a negative mental health message to send. We need to be careful about how we use messaging relating to mental health. There are issues with mental health policy in Ireland to do with under-resourcing and they need to be addressed. Again, they can be addressed through policy.

I support the Sinn Féin amendment and, indeed, I will be pressing my amendment in which I suggest that February would be a more appropriate expiry date and would be more apt in the context of reviewing and scrutinising these measures. We can see if they are, in fact, assisting or evaluate what other, more appropriate measures might be needed to deal with the ongoing Covid-19 crisis. I have no doubt that it will still be with us in February.

I welcome the Minister, who is here to debate what must be described as a critical issue. I feel a little bit inferior sometimes in a debate like this because I listen to such eminent lawyers as Senators McDowell, Bacik, Ward and Martin. It is fascinating to watch them go through this piece by piece. Some salient and important points have been made on both sides of the argument.

I do not even like the words "enforcement powers" any more than I favour the guillotining of debates on Bills, and I have said this before. I do not like that type of politics. Covid-19 has turned this world upside down. It has caused rancour, division and huge economic scars which we will only begin to see as we move forward. It has created a serious challenge to every government. Deciding how to handle it was not easy.

Even though I would not count myself as being as qualified as some people to speak thoroughly on this matter, I feel that, particularly with Christmas coming up, that the Government could not get rid of these particular powers on 9 November. Perhaps pushing them out to June causes concern to some. That is, however, the natural reaction of people who have been virtually locked away for much of 2020. In that context, it would be good if the number of people infected with Covid-19 and the number of deaths continue to drop. This is happening and it is positive, but there will be an understandable and natural reaction whereby people will want to break free.

I hear the debate about people coming home for Christmas. I shudder to think what is going through the minds of families whose loved ones are spread all over the world and who may not be able to get back home for Christmas. That would be extraordinarily sad. How do we tackle that eventuality and how can we assure people that we will be able to make some arrangements for families?

I listened to what Senator McDowell had to say. We must be careful with regard to Garda powers and so forth. As a result of travelling to and from work most days and speaking to gardaí, however, I must state that it is clear me that they are doing a really excellent job. They are in conversation with the people. This does not involve a dictum or laying down of the law, it involves people conversing with gardaí to let them know to where they are travelling. Actually, I agree somewhat with Senator Martin regarding tailbacks. I have been caught in 6 km and 7 km tailbacks heading out of Dublin. By the time we leave here this evening, the tailback may be gone. If I encounter one however, it puts an hour and a half onto my journey. The point I wish to make is that when I am caught up in traffic that is moving at snail's pace a couple of kilometres back from the checkpoint, I notice the business people and the workers from County Mayo. I see the vehicles of the Lynch roofers from County Roscommon and the stonemason from Ballinasloe. All these lorries have their labels on them. Why are they being stopped? Common sense will tell a person that those people are coming to Dublin to do a day's work. We do not have much of it down in the west. That is where they get the work and then they go home.

Could someone not show a bit of imagination and divert such traffic past checkpoints via the slip roads along the route? Then, the officers manning those checkpoints could check whichever other vehicles they want. Would that not be a practical way to do it? If this was done, we would not have tailbacks. I can tell the Minister of State that some of the people, including me, who have to drive back from Dublin each day have to leave home at 5 a.m. or 6 a.m. and do not return until 10 p.m. or 11 p.m. People are extremely frustrated and tired at that stage of the evening.

I must really praise the work gardaí do and the way they talk to people. However, perhaps somebody up along the line will take heed of what I say this evening and look at the possibility of implementing what I have suggested on all the motorways in order that we are not hindering people who have been so good. People have been so good. The majority of them have suffered but they know that the Government must act. I will openly state that the biggest complaints I had from members of the public were about why a particular pub was open and allowed to break the law and why the house parties were not tackled. To a degree, I agree with the powers to some extent. We need, however, to give something back in understanding the general public who have been so good in terms of co-operating with Government in all this.

To conclude, I often use the phrase "Short-term pain, long-term gain". I am of the view that short-term pain will hopefully lead to long-term gain. If the Government adopts that strategy, then perhaps it needs to start saying to people that it will review the matter of the shooting season. I am not stating that it will decide to open it up but that it will review it and that it may consider extending it by a month into the new year. It is things like that which we must consider. We may, for example, consider allowing cattle buyers back into the rings because online trading does not suit everybody and does not suit older buyers in particular. The Government could, perhaps, say it will review that. We may review opening up golf or tennis in a week or two, not that too many people will play golf with the way the weather is at present. It is, however, all about giving a little.

While I do not like these measures, as a member of the Fianna Fáil Party, I will obviously support them. Perhaps, giving a little bit back may not be a bad idea.

I will also support the amendment to the legislation. The Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 was signed into law by the President on 11 September 2020. That date of September 11 - or 9-11 - struck me as somewhat ironic. This country and its people are being ruined and reduced to ground zero by the incompetence of this Government in managing the pandemic by means of effective policies. Untold damage is being done to the health and wealth of the people. Despite the Government advocating a living with Covid-19 approach, it is not allowing people to live. The living with Covid-19 plan is a lie and a fraud on the people. The Government has repeatedly singled out the hospitality sector to bear the brunt of restrictions without providing meaningful support to ensure businesses and jobs which were viable prior to the lockdown will remain so. The heavy-handed approach by Government in extending lockdown restrictions indefinitely and using the law to threaten people with harsh criminal sanctions must stop.

It has not been proven to be proportionate or necessary. We are simply extending the suffering.

NPHET has claimed that infections were arising in pubs and restaurants. Can it produce solid empirical evidence and scientific data to support that claim? Can NPHET or the Minister of State provide data as to the number of hospitalisations, ICU admissions or deaths that have resulted from people making the choice to go to a bar or a restaurant of their own free will? Where is the evidence? Have we acquired any data from the European Centre for Disease Control and Prevention, ECDC, on how other countries' bars and restaurants have remained open? Ironically, the ECDC headquarters is based in Sweden where they have genuinely chosen to live with Covid-19. There has been no evidence to date of the Garda imposing closure orders on any public house or restaurant under these powers so why would the Minister wish to extend this order?

I have addressed this House previously on the array of draconian emergency powers that have been introduced without any real debate or parliamentary scrutiny. The lack of debate is a real concern and an affront to the people and to the democratic process. These lockdown powers shut down people's lives and their ability to earn a living. The enforcement powers dangle the threat of criminal sanctions over their heads if they do not comply. This is done with the claim of protecting them from a grave and imminent threat to their health. The provisions in question are due to expire on 9 November 2020 and the motion before the House is to extend them until 9 June 2021. Where is there hope for this nation with these measures the Minister is taking today?

Our leadership in this country has the public's support with words like "we might have a vaccine" or "maybe we will have a vaccine in 2021" but words like "might" or "maybe" do not give hope for the restoration of our freedoms and liberties. Nor will those words put bread on the table of the millions of people these decisions affect. The words "might" and "maybe" will not affect the 1 million people who are on our hospital waiting lists.

I have opposed the extension of the sunset clause and other draconian emergency legislative powers of a penal nature. I believe the extension of this sunset clause until June 2021 is legislation that has not proven to be warranted and I will be supporting the amendment.

I welcome the Minister of State, Deputy Browne, to the House. This has been a good debate on these matters but the reality is that the Minister is asking us to agree a proposal to extend these measures to 9 June 2021. I want to say at the outset that I fully support the members of An Garda Síochána in their challenging work in policing our communities but I also support the citizens, the greatest watchdogs of our communities, and their role in assisting An Garda Síochána with policing. Much policing is soft policing, soft information and open and good communication with An Garda Síochána at every level of its work. However, I want to share some stories with the Minister.

Last week, I had to contact An Garda Síochána in Dún Laoghaire where I had found, across the Dún Laoghaire-Rathdown County Council administrative area, people outside on the streets consuming alcohol and urinating it into the planters placed along the streets. The Minister of State may not know that Dún Laoghaire-Rathdown County Council has by-laws that prohibit the consumption of alcohol in public places. Having left here last night I was travelling through Blackrock and again I saw people all over the streets. There was no social distancing and no concern for the virus or for the health and well-being of citizens. People were sitting on walls and on the new temporary timber seats that have appeared everywhere, at a cost to the taxpayer, and planters for people to urinate in. We must remember that public houses are shut yet they continue to sell alcohol. Consuming alcohol in public places is in breach of the by-laws of our county. I visited Blackrock Garda station to express my concern and have yet to hear what will happen. I asked them to go out and enforce the law. All I was asking for was that the law would be enforced. We have a situation where from Booterstown to Blackrock, Monkstown, Seapoint, Sandycove, Glasthule and all the way up to Dalkey and Killiney people are consuming alcohol in breach of the law and with no regard to Covid-19.

We are being told by the Minister of State that the Garda needs extra time. They have these powers but I am not convinced that they are being used. I appreciate the gardaí are under-resourced, that they need more assistance and that these are difficult times to police this situation. I recognise also the importance of working with people in terms of administering the law. It is not the top priority when we are dealing with more serious crimes in our community and the challenges that face An Garda Síochána. It is important to put that on the record.

As my colleague and friend, Senator McDowell, said, we have a role as one arm of the Legislature, Seanad Éireann, to ask questions of the Government and to hold it to account in respect of its proposals and legislation. I have no difficulty supporting the proposals but I will be supporting the amendment. It is reasonable and fair that we look at this issue until February and, if it continues to be so important, come back and do it at that time.

The Minister of State must remember that we have to give people hope. I have heard many of his colleagues in government from various parties talk in both the Houses and on the national airwaves about the need to give hope to publicans, pub owners and restaurateurs and to try to help them. Any pub owner or restaurateur reading the report of this debate in tomorrow's national press will be disappointed because we are telling them we are working to have their premises reopened. If I were to read tomorrow that Seanad Éireann and Dáil Éireann had approved a provision for an extension until June 2021 I would be a little disappointed and my confidence would begin to be shattered.

On a number of grounds what the Minister is proposing is reasonable but I do not see any reason not to convene another meeting of both Dáil Éireann and Seanad Éireann in February to explain that a reasonable extension is needed. It is about respect for the Houses of the Oireachtas. It is about the importance of scrutiny of legislation. That is reasonable and fair. I therefore will support the amendment. I thank the Minister of State for coming into the House. I thank the other Members who have engaged in the debate. If the Minister is giving the gardaí more powers, we need to find out if they are using them, if they need them and the difficulties to date. We do not have much information on any setbacks, challenges or problems with the powers they have had to date.

I thank the Senators for their contributions on this resolution. We had a very good and wide-ranging debate and everybody who wanted to contribute was able to do so.

I will start by addressing the amendment put forward, which effectively seeks to change the extension in the sunset clause from the one proposed by the Government to a date in February. A similar amendment was put forward in the other House and rejected. I cannot accept the amendment in this House. All of us need to be realistic. Covid-19 will not be a thing of the past within the next three months. Even if we have suppressed the virus in the new year and a vaccine becomes available, and I certainly hope it does, it will still be months before it is rolled out to everybody across the country. That is the reason the Government introduced a recovery and resilience plan for living with Covid-19. That lasts until the summer of 2021. The Government is proposing 9 June 2021 because we do not want to be having the same debates in both Houses every few months when nothing materially has changed and we are effectively in the same situation. There is more important work to be done in this House than repeating debates every few weeks that may not be regarded as the best use of time when nothing materially has changed.

I wish the situation was different. I wish that such measures were not necessary. While it is hoped the situation will improve soon, we have to base our proposals in reality. We are trying to give people certainty and a realistic view of where we might be next year. We are also trying to give people clarity by aligning the dates of the various instruments to each other to ensure people will have that clarity in terms of where they are under the various regulations when they apply.

Therefore, I do not accept the amendment to the resolution.

I welcome the comments from Senator Ward. He acknowledges that there is no realism to the idea of Covid-19 effectively being removed or successfully dealt with by February. I certainly hope that it will be dealt with by June but there is no certainty to that. We can have this debate again in June if the measures need to be extended further. I hope they will not be but there is a real possibility that they will be needed.

As Senator Ward pointed out, not a single closure order has been made. This has not proven to be draconian. It has been in place to change people's behaviour, and that has been done successfully. Before these rules came in, gardaí noted and commented that when they attended to the small minority of publicans who were not adhering to the spirit of the law, they took the view that they could have taken action there and then but some of those publicans would simply have repeated the same challenges to the regulations as before. This has not really been happening since the regulations have been in place. The Garda Commissioner is satisfied that they have a purpose and that they are successful in changing people's behaviour.

I listened to the comments of Senator McDowell. I accept absolutely that the Government must be kept to account for all these emergency measures. These are extraordinary powers - I accept that. The rationale requiring these powers will still be with us in February. That is the aspect of realism to this. June is a rational date because it aligns with the other regulations in place. I expect that if there is a situation whereby these regulations are not needed at any point between now and June, whether by a natural result or through vaccines, they could be removed and I expect that they would be removed. Until such a time, I believe June is an appropriate date.

Hope is always necessary. Hope is very important, but as with Trump, hope sometimes veers into something purely based on faith. At times, at the start of the pandemic, there was hope based on delusion. There is a fine balance to be found. I absolutely accept that people need hope. We must be optimistic as a country, a Government and a Parliament. However, in terms of governance, that optimism and hope must be based on evidence and realism. There is always a balance to be found in that sense.

Reference was made to discussing the issues in the debate. The Minister for Justice, Deputy McEntee, stated in the Dáil that she is happy to go before the Joint Committee on Justice or any committee to further debate this at any time. If a request is put in, she will do so.

Senator Gallagher raised the issue of publicans and the serious situation they are in. Before going into the law I studied at DIT Cathal Brugha Street and worked in the hotel and catering industry. I worked in bars and in other parts of the hotel industry for 13 years. I am keenly aware of and understand the suffering publicans are going through at the moment. They are all shut at the moment so to a certain degree these rules are not going to be imposed. They apply to all the pubs that have stayed shut. I heard Senator Gallagher's comments on the greater need for flexibility. Certainly, the Garda has shown flexibility and understanding with a rationale.

Senator Bacik referred to the high level of compliance. These regulations were only ever needed for a small minority of publicans who were simply not adhering to the rules. When the Garda Síochána approached a minority of them, they simply would not comply. I believe the regulations are needed, but no closure orders have been given. Aligning the regulations to June with the other regulations gives us clarity. Often with a problem where we try to give more nuance it can lead to more confusion. There is a balance between finding flexibility to support as many parts of society as possible and not creating further confusion. I agree we need a clear exit strategy. We need to learn from every jurisdiction that has brought in rules and where they have been successful. Senators have mentioned the measures in Australia and Taiwan used to suppress the spread as much as possible. We have an open Border with the Six Counties. That will always represent a challenge - I will not use the word "difficulty" because I want to see a date when we have a 32-county republic in the country. That is the reality of it. I note the comments from the Senator about gardaí and the great work they are doing.

Senator Dooley raised several important points. The powers are in place. They were extensively debated on the previous occasion. The primary purpose is to change behaviour and I believe they have done that. That has been acknowledged. No premises have been closed down. The key issue is the time for review rather than the actual emergency regulations that are needed. They are needed for the moment. They will be removed as soon as they are no longer necessary. Again, for the same reasons, I believe June is the appropriate date, but I appreciate all the contributions on providing an alternative date. They are well made and genuine and have a good rationale behind them. It is a question of judgment whether it is February, March, April, May or June. I have articulated the rationale we have put forward.

Senator Martin referred to how vigilance is important. I agree that a cautionary approach is always best. Senator Martin raised some concerns about consultations. The Minister, Deputy McEntee, has invited the leaders of the various parties for a discussion on this issue. The Minister has stated that during this period of the extension she is happy to go to the Joint Committee on Justice or any committee for that matter for further consultation. In fairness to the Minister, she has always been amenable to discussing any issue under her remit.

Senator Higgins raised several important points. With Covid-19, policy is critical but ultimately we will not defeat Covid with policy. We either need nature to remove it, which is highly unlikely, but it is always something we can hope for. Otherwise, we need a vaccine to get it under control. We all have to hope for that.

Senator Murphy rightly praised the people and all the sacrifices they have made. No matter what sector they are in they have made fantastic sacrifices. It has only been a small minority who have not co-operated.

A number of people raised the issue of mental health. As a former spokesperson for mental health I know they have made a serious and important point. I wish to make one statement on this for people. Social distancing does not mean social isolation. We already had an epidemic of loneliness in this country before Covid-19 and now it has been exacerbated. I have talked to various people who deal with day care centres for people with disabilities or older people. They said when they started to open up these centres in September or October they were ringing people. People rang back and the nurses and support staff said they could not get them off the telephone. In some cases it was the first telephone call or conversation the people had made in weeks. Much has been done in the area of mental health but more needs to be done.

Senator Keogan should note I am absolutely not targeting any sector or industry in this country. The decisions are being made based on policy, which is in turn based on evidence. It is based on people's activities. That is where the levels come in. The assertion that no supports are being given was made. A total of €20 billion extra has been put into the State this year and €20 billion will be put in next year. This is an unbelievable and unprecedented level of funding and supports being put into the State. To say the supports have not been put in place is without foundation.

Reference was made to free will. Unfortunately, Covid-19 does not recognise free will. Again, I hope it is removed as soon as possible. Reference was made to a complete lack of debate. These measures were debated extensively when they were first brought in. This was debated in the Dáil this week. It is being debated in the Seanad today. The leaders were invited to meet the Minister for Justice, Deputy McEntee. She is available to attend a committee if anyone requests it. Any allegation of a lack of debate is completely without foundation.

I listened to the comments of Senator Boyhan. The point is that a small minority of people are consistently breaking the rules. That is the reality of life. It is always a small minority who cause the most damage in our society. We need always to find a balance to address that inasmuch as possible.

I have tried to address as many points as possible. I recognise all the contributions from the Senators are well made and genuine. I understand the rationale. These are serious powers. They should only be left in position for as long as necessary. While we may not agree on all points, I know every Senator in the House agrees that we must do what we can to protect the public from the virus. This includes protecting the health of licensees as well as their staff and customers. I know the Members of the House believe in fairness.

These enforcement powers are about fairness and ensuring that all licensees play their part in the national effort. The Garda has acted sensibly and avoided using its powers to date, and I believe absolutely that approach will continue. I thank the Senators for the debate.

Amendment put:
The Seanad divided: Tá, 12; Níl, 26.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Boylan, Lynn.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • McDowell, Michael.
  • Ó Donnghaile, Niall.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.


  • Ahearn, Garret.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Kyne, Seán.
  • Martin, Vincent P.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Alice-Mary Higgins and Niall Ó Donnghaile; Níl, Senators Robbie Gallagher and Seán Kyne.
Amendment declared lost.
Question put: "That the motion be agreed to."



Will the Senators claiming a division rise?

Senators Lynn Boylan, Paul Gavan, Niall Ó Donnghaile and Fintan Warfield rose.

As fewer than five Members have risen I declare the question carried. In accordance with Standing Order 61 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Question declared carried.
The Seanad adjourned at 5.55 p.m. until 10.30 a.m. on Tuesday, 10 November 2020.