Health and Criminal Justice (Covid-19) (Amendment) Bill 2021: [Seanad Bill amended by the Dáil] Report and Final Stages

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 148, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject matters of each related group of amendments. I have circulated the proposed groupings to the House. Senators may speak only once on Report Stage. The only matters, therefore, which may be discussed are the amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

These are essentially equivalent amendments throughout the Bill. To put these amendments in context, I received communication from the health committee expressing its serious concern about the Bill, as initiated, whereby a sunset clause of up to 12 weeks could be rolled over indefinitely pending a vote of both Houses. There was also a constructive and productive debate in the Seanad. On the back of that debate, as colleagues will recall, I undertook to seek the Government's approval to substantially amend the Bill. This required a new decision of the Government. I secured that agreement to table amendments in the Dáil.

The amendments, for which I sought agreement from the Government, will essentially allow only one extension of up to 12 weeks. The Bill would then fall. If it were deemed necessary in the future to have more targeted public health measures in response to Covid, we would need to go through the legislative process again. My understanding is that there was broad support around the Seanad for that approach. Earlier this week, these amendments were brought forward and passed in the Dáil.

There are nine amendments, one of which is a technical amendment concerning wording. The other eight amendments essentially seek to do the same thing throughout the Bill. The Bill seeks to extend the ability of the Government to make regulations for public health measures that are proportionate to the risk posed by Covid-19. There are four Acts which allow for those powers. One of the amendments is a technical one concerning wording. The other eight are four groups of two amendments which seek to make the same change as the Bill pertains to the four Acts which are referenced and which we are seeking to extend the powers within. What they propose is, that after the initial period has fallen, or comes due, which is 9 November, with the agreement of both Houses, we could extend the period for up to 12 weeks.

That would bring us up to February, and that would be the end of it. That would pertain to all of the related Acts.

I do not know if I will get another chance to speak so, if possible, I will lay this out. There was a lengthy debate over many hours on Committee Stage in the Dáil and unfortunately I had no time to respond to any of it. There were some who believe that there should be no measures, that people should do whatever it is that they want to do, and that there should be nothing to try to control the spread of the virus. Quite a number of contributors believe that. They voted against the Bill, which I believe would be a rational vote. They fundamentally do not believe that there should be public health measures in place.

(Interruptions).

They fundamentally do not believe that there should be any public health measures in place. They believe that the civil liberty argument takes total precedence over the right to safety, human life, human health, etc. That is their position and for them to vote against the Bill is therefore rational. I utterly disagree with that view but at least if one holds that view and votes against this Bill, that is a rational vote based on the fact that one believes that freedom is more important than life, and that is fine. Many other people also voted against the Bill, which I found disappointing. They have always supported the fact that public health measures are needed and even in the debate accepted that these public health measures are needed now.

As I am sure colleagues are aware, the Chief Medical Officer and I will meet with Limerick city and county Deputies and Senators later today. There is a serious outbreak in Limerick, with more than 100 cases from Wednesday reported yesterday. We are looking closely at it today. It goes right across society. It is from post-third level gatherings and parties, workplaces, commutes, household gatherings and is across the board. I was talking with the Chief Medical Officer about this yesterday and I asked if the Indian variant, or delta variant, is at play here, and he said that it was not. He said it is the B.1.1.7 variant, whichever name we are giving that one. We all understand the B.1.1.7 variant. It is just that at play. What is happening in Limerick right now is eminently solvable and I have no doubt that the people of Limerick city and county are already stepping up to deal with this and fantastic work is going on on the ground. It reminds us of just how serious the situation is and can quickly become, and why public health measures are needed.

There were Deputies who, to their credit, believe that we need public health measures but believe that the date of November is wrong, which is valid. They tabled amendments accordingly and could have voted on those amendments. None of the amendments were taken and so they voted against the entire Bill. That is disappointing and reckless. Members of the Dáil who believe in and support public health measures, who fully back the idea that we need public health measures for what is happening in Limerick and different parts of the country, voted against the entire Bill. That meant they were voting against the State having any ability to respond to an ongoing pandemic which, in my view, was an extraordinarily reckless thing for them to do. Luckily the Bill passed the Dáil and is back here. It was disappointing because I listened carefully to the Joint Committee on Health and to the Seanad and went to the trouble of substantively changing the Bill to have only one three-month extension.

So it was very disappointing when that had been done as well, that they still voted against the entire Bill, simply on a disagreement as to whether the date should be November, September or some other date. I want to register that, as it was a very reckless thing to do.

There was a very productive debate here in the Seanad and in the Dáil with regard to oversight. These are extraordinary powers. I have used the word "draconian", as have many Senators and Deputies. They are extraordinary powers and we want them to be gone as quickly as possible. On Monday next there will be more relaxation of those rules. Interestingly, were this Bill not to pass, we would not be able to continue on Monday with the steady and safe unwinding of the measures. What would happen is there would simply be no measures on Monday morning whatsoever and that would be an extraordinarily foolhardy thing to do in terms of the safety of people living on this island.

There is very substantial analysis, oversight and checks in place for this, which there should be. In terms of analysis, some Members of this House and of the Dáil said there was no analysis available as to how these decisions are being made. The decisions are based on advice from NPHET and other sources. Public health, social and economic advice comes to me and to the Government. All of the NPHET advice is online. All of the analysis it uses is online. The presentations NPHET uses internally and for the Government are all available online. The papers it discusses and endorses, for example, the detailed papers on ventilation and other really good work, are all available online. The Garda data are available. Colleagues very reasonably sought data on how the powers are being used and enforced. Those facts and figures are available. They are published. I would be very happy to provide colleagues with any further information I could. There were some very reasonable questions on geography, demographics and so forth in terms of who the enforcement powers were being used on.

The next level of oversight is the Oireachtas itself. I hope that the process we are going through is proof of that. There was a meeting with the health committee and there was a very healthy debate here and in the Dáil. As a result of this we are making very substantial changes to the Bill, which is the substance of what we are here to discuss. There have been regular debates in both Houses.

The next level of oversight is the Government itself. It is worth stating that while this Bill gives powers to the officeholder who is the Minister for Health, which is me, to make these regulations, the process by which these regulations are made is after a decision of the Government. Regulations are not being made in the Department of Health without recourse to the rest of the Government. What happens is that NPHET meets and it does a very detailed analysis. All of the analysis is available publicly. It presents to the Cabinet Covid committee. Others who present to the committee include the HSE and the vaccine task force. A lot of information is considered. The Covid committee then essentially makes recommendations to the Government. The Government makes its decisions, whatever they may be, in terms of public health measures, whether that is to bring in public health measures or at the moment, thank goodness, unwinding all of the public health measures. Then the Department of Health essentially uses the Government decision to write the regulations, which I then look at. We have a further round of consultation with relevant line Ministers and then and only then are the regulations signed. They are published before they come into effect. It is important that colleagues understand that. These regulations are not something that the Department of Health or I do in isolation. There is a very clear all-of-Government approach to all of this.

Then there is a mechanism whereby the Oireachtas can seek to annul those regulations. The regulations are laid before the Houses. It is my understanding that it is section 5(5) of the Health Act 1947 - I may have it slightly wrong - but there is a section whereby the Oireachtas can seek to annul the regulations.

It was triggered over the substantial meal regulation, which I am sure we will all remember. There was a debate on the matter and a vote to seek to annul the regulation. Therefore, there is a mechanism for the Oireachtas to state it is not happy with any regulation and it wants a debate on it. It can trigger this to annul regulations.

The next layer of oversight is the courts. It is important for us to remember that this Act is not seeking an extension simply to allow the introduction of whatever measures one wants; the measures introduced must be proportionate, and that is laid down in the Acts. Anyone can challenge the proportionality. As colleagues will be aware, there have been numerous court cases. There are several cases before the courts right now, including on the domestic measures. There were several cases concerning hotel quarantine and there was a case concerning pubs and restaurants. Numerous cases have been taken whereby people exercised their right to challenge the proportionality of these measures. The courts have a role and the measures must be proportionate. This is one of the reasons we could not simply introduce mandatory hotel quarantine for any country, regardless of the risk.

I will leave it at that. I just wanted to lay out for colleagues where we have got to. I hope colleagues will support the amendments. They are essentially amendments that the Seanad asked for. It was dead right to ask for them. We have now made them. If there are Members of the Seanad who simply do not believe we should have public health measures in place — there are certainly such Members in the Dáil — I could not disagree more strongly with them. It is a view and it is obviously anyone's right to hold it. If such individuals voted against this Bill, it would be rational but I appeal to colleagues in the Seanad who fundamentally agree with the premise that we need to continue with public health measures from Monday onwards, which is really what we are being asked about, to support the Bill, even though they may disagree with the date in November.

As I said on the last occasion, there is no right date. It is a public health-informed date. The UK, for example, has opted for the end of September. We have opted for the start of November. We are about five weeks behind the UK vaccine programme so it lines up quite well in terms of the projected rates of the disease and so forth. September, to me and public health officials, is too early, partly because we will see many people going back to school, work and third level education in that month. The public health view is that one would want to have the ability — I hope it will not be needed — to address any issue arising. An example I gave on the last occasion concerned masks in that there might be situations in which it will still be appropriate to have face coverings. I have no idea whether that will arise. That is the public health view. We believe there will be a lot of social interaction in August and that many people will be going back to education and work in September. The view, therefore, is that for September and October, we will want to retain the ability to introduce what I emphasise as proportionate measures. If the disease rate is very low, as I hope it will be, there may just be a need for very targeted, proportionate measures. By November, or the end of October, essentially, it is hoped there will be no more need for them. Regardless of whether colleagues believe the date should be in November, October or September, if they fundamentally believe that from next Monday onwards we will still need public health measures, they should support the Bill itself.

I welcome the Minister to the House and welcome the fact that the Government did examine the points made in this House on the last occasion and realised that it was not simply asking for a six-month extension followed by a three-month extension; it was asking this House to agree that there should be a six-month extension followed by an open-ended series of three-month extensions, virtually forever. When that point was made in this House, the Minister began to see the strength of it. The health committee had made points about it but we still voted the legislation through as it stood because we were guillotined.

The Minister made the very reasonable complaint that he was not able to say some of the things he said today in this House because of time constraints in Dáil Éireann. However, who imposed that guillotine? The answer is that he did. Government Whips imposed that deadline on Dáil Éireann. It was the Minister and his party. I will not get overly excited about it, but I am saying that those Members who found themselves forced into voting against the entire Bill because they could not move their amendments and have them individually voted on were the victims of a decision made by the Government to shove this thing through regardless because of the timeframe the Government itself had created.

I know that Monday was to be the cut-off date and that we had to legislate before Monday. However, there was no reason this legislation could not have been introduced two months ago with plenty of time to debate it. That date was clearly there. Everybody knew that date was coming. The Minister created this emergency by not legislating to extend until it gets very urgent. He then turns around and claims he could not contribute to a debate because of what the Whips had put down on the Order of Business in Dáil Éireann. It is a bit much. I am not going to get in any sense ratty with the Minister.

The Senator just did get ratty.

No, that is not ratty. I just want the irony of what the Minister has come in here to complain about made very clear. We wanted to debate these issues in this House. We wanted more time to deal with it. We wanted to make the amendments the Minister wanted to make, but we were refused and told to push it through to one vote and that is it. That is what happened in this House and that is what happened eventually in Dáil Éireann.

The Minister said that he can understand those people who believe in no restraints at all and the consistency of their position that they just vote against any such regulations. He thinks they are somehow to be credited with some degree of rationality. However, he then accuses the people who opposed his Bill and who could not amend it because of the Order of Business and the guillotines the Government put down of being reckless for objecting to that procedure.

That raises the fundamental question as to how we have dealt with this Covid crisis. I believe we have dealt with it in a very inadequate way. I will not put it stronger than that; I could use different adjectives. When there was no Government, only an acting Government, before the Minister became Minister, we had an all-party Covid committee, chaired by Deputy McNamara. Its function as a Dáil committee was to look at what was being done. It was a semi-permanent oversight mechanism.

I have spoken to Deputy McNamara and other members of that committee on many occasions. The intended purpose of it was to seek accountability from NPHET and ask its representatives to justify the ban on intercounty travel, limits of 5 km rather than 20 km or whatever it might be. That committee was disbanded at the behest of the Government. We were told that instead of that we would have a different system and that all the sectoral committees would deal with the Covid crisis separately. The result is that there was effectively little or no oversight of what the regulations were achieving or whether they were in any respect excessive.

The Minister said two things. He can always annul a regulation. If we annul a regulation that has been made, we act recklessly because we scrap everything even though there may only be one paragraph in it to which we object. He cannot annul just one paragraph of a statutory instrument. Either the whole thing stands or it does not. The Houses of the Oireachtas are faced with the same binary choice. If a regulation is made requiring 10 km instead of 5 km, the only thing a Member who objects to 10 km rather than 5 km can do is to table a motion in either House of the Oireachtas to annul that statutory instrument.

Then that Member would be accused of being reckless and told he or she was going to sweep away all protections everywhere in the country on the same basis. If the Minister is going to accuse people of being reckless, he should remember that if a statutory instrument is annulled, every bit of it goes up in smoke. The result would be that there will be no regulation whatsoever. That is the kind of binary choice that was put before people.

When the former Minister for Health came to the Seanad seeking the original amendments to the 1947 Act, I voted for them because I thought they were necessary. That was in March, April or whatever of last year. I hoped, as we all did at that time, that this would be a short-lived thing. The problem is now that far-reaching decisions are being made which affect the country at every level and the process has not been satisfactory. There should have been a special standing committee of the Houses of the Oireachtas set up to bring in representatives from NPHET and ask them hard questions about the advice it gives. It is all very well for the Minister to say that the Department receives advice from NPHET, brings it to the Government and Ministers challenge it and that a regulation can be annulled afterwards if that is what is desired. The fundamental point is, however, that the law-making process for the Irish people under our Constitution is the Houses of the Oireachtas and the Oireachtas acting collectively. Bringing the matter from NPHET via the Department to the Cabinet and then out in the form of regulations and then saying the Houses of the Oireachtas can annul the whole thing and that is its only choice is not proper consideration. There should have been and we could have had a different approach. We could have had a situation whereby regulations can come in and have a life of three weeks and then have to be debated and approved after line-by-line scrutiny where we go through it and justify the measures in it. That was possible but inconvenient. That is the problem we have had.

I am not here to speak on behalf of Deputies who voted against the entire Bill but I share a sense of a bit of repressed anger that they should be accused of being reckless when they were corralled into making a binary choice: do it my way or no way. Then they are told, since they are doing it no way, they are reckless. That is not reasonable.

The point the Minister made in respect of judicial review is fine, except that a judge cannot come to the view that he or she would not have made the particular regulation in the form it was made. In order to succeed in judicial review, one has to show the decision was irrational and no reasonable person in the Minister's position could have made the decision the Minister made. If it is 5 km or 20 km, 2 m or 1.5 m distance on a bus or a quarter or a half of public transport capacity, one cannot just say to the judge, "With the greatest of respect, that's excessive" and have the judge say that he or she agrees and will strike it down. Excessiveness is not the issue. It is whether any Minister could reasonably, exercising the powers he or she had, make the regulation in the form it is in. If one does not meet that test, one fails. A High Court judge could say the 20 km thing is a bit daft and he or she would have done 10 km, but go on to ask who he or she is to say the Minister got it madly wrong and no reasonable Minister could have said 20 km rather than 10 km or that all counties are the same for the purposes of restrictions.

Those issues are ones where judicial review does not avail a person challenging the measure unless he or she proves that it was so lacking in proportionality or reasonable justification that no reasonable Minister could have exercised the power in the way the Minister did in making that statutory instrument. That is not much of a safeguard in terms of working out whether, for instance, the construction industry should have been exempt or whether social housing should have been allowed to go ahead but ordinary, non-social housing should have been halted. Those are the kinds of decision the High Court cannot really purport to make; they are decisions that were made at Cabinet and they require justification but they did not receive it. There was no debate of which I have heard - maybe it happened somewhere in these Houses and I was not aware of it - involving anybody saying there is a rational distinction to be made between allowing social housing projects to continue and stating that non-social housing projects must halt. There may be some science behind that. Perhaps Dr. Holohan has some view of a variant that flits here and there between different housing estates. I do not know whether that is the case. I am making the point that, at least, somebody should have been in a position to ask him or the Minister that question and to get a rational answer before that regulation was made.

I do not want to hog the time and I know other Senators wish to speak but I wish to say that we are now in a wholly artificial and unnecessary position of being up against a deadline and the Minister is now saying that if we do not do it his way, we are reckless. That is the gist of what he is saying in this House. I am going to vote against the Bill. I am not going to be reckless; I am going to vote against it as a protest. I know the Minister has the numbers, so I am aware of the consequences, but I am going to vote against it in its entirety because there has not been sufficient public oversight and Oireachtas oversight of the measures that have been taken and the mechanisms for oversight have been wholly overridden by decisions such as those to impose guillotines and the like.

I will give the Minister an example. He very interestingly told the House today about a situation in Limerick. It is a serious matter if there is an outbreak of 200 people in Limerick and if it is not the delta variant or whatever the Indian variant is now called, so be it. I would like to know some other facts about that. I would like to get in Dr. Holohan and ask him the very simple question of how many people who have been semi-vaccinated have succumbed in the past while. Is it mainly among people who have not been vaccinated at all? How many people who have been received two vaccine doses have become ill and how many of them have been hospitalised? I would love to know the answers to those questions but there is no means of finding them out in this House.

The Minister has not told us-----

The Senator is not a virgin Member of the House-----

(Interruptions).

I am not going to hog the time but one can go back to the maps that were shown of outbreaks of Covid. Outbreaks that were six months old were still appearing as clusters on those maps. There have been all sorts of problems and it is not good enough to say, "Here is my Bill; these are my regulations. Give me the powers. Do it my way or face the accusation of being reckless."

We are here to amend the Bill.

(Interruptions).

I welcome the action of the Government in, at least, facing up to the proposition that it was not going to make this an open-ended emergency in the way that it was-----

The Senator said he was not going to-----

Sorry, Senator, under Standing Order 39 Senators have to ask permission.

I got permission.

He did ask permission.

I did ask for permission.

I did not hear you.

If Senator Ward wants to make an intervention during my speech, he is perfectly welcome to do so, but he will only lengthen the matter. I am about-----

Senator Ward has 30 seconds.

Senator McDowell said he does not want to hog the time. We are now approximately five minutes away from the end of this session. If he does not want to hog the time, maybe he should be seated.

Who set the time limit?

Who, may I ask, set an hour for this matter? Who set the guillotine in the Dáil? Who did any of that? All of the Government Senators sheepishly support these guillotine measures.

We could have had a vote on the ordering of the business for today and eroded more time. It is about time that the guillotine stopped falling on important measures that affect everybody's daily routine. Most importantly, it is about time that these Houses took back some real degree of scrutiny over laws that are having a huge effect on how society is functioning.

I thank the Minister for effectively accepting the amendments that I put forward in the Seanad. They dealt with a very serious issue whereby the Bill, as drafted, was indefinite. The Bill allowed for indefinite extension by three months' resolution, followed by a three month's resolution, with no final end date. I made the case in the Seanad on the seriousness of what that would mean in terms of the balance between the Executive and the Legislature. I thank the Minister for taking them on board. I would have liked if my amendments had been accepted in the Seanad.

I note there is a concern that there has been a habit, sometimes, of not accepting very sensible amendments in the Seanad but waiting to accept them in the Dáil. In fact, these are effectively the same measures that I put forward. There is a concern about the timing and the guillotine in that respect but I acknowledge that the legislation at least sets a final date, which is important. There are slight differences but effectively the same principle will apply and there is a final date. It is a final date that is very far away, which remains a concern for many and I understand that concern.

I highlight the amendments that the Minister did not accept, unfortunately, in either this House or the Dáil but I hope that he will deliver in practice on the call for a review. He has heard the distress of the House at being asked to pass Bills without all of the information Members need in terms of the review. With respect, the 28-day annulment of a regulation is not sufficient because we are responsible, we have that nuance and we will not risk a danger to public health because we are concerned about one aspect. That should not be taken for granted.

I urge the Minister, although he has not accepted it in this Bill, that the request made in my amendments and in amendments tabled by others in the Dáil, that before he comes back in November, if he comes back in November, to request an extension that, in a timely manner, of at least one month before that, we would publish a review in respect of all of the regulations and how they have operated. Being able to pull an emergency break is something that we do not necessarily want to do but we may want to be able to steer things in a different direction. We may want to bring the information that all of us have in terms of how those have operated. We may, therefore, want to bring nuance when or if the motions, to extend these four different pieces of legislation, were to come before us in November.

I ask the Minister not come to us in November and tell us it is an emergency again, yet not give us what we need, which is a full scrutiny of the regulations and the humans rights aspects of the implications of the regulations before we are asked to extend further. I say that again acknowledging that at least there is an ultimate final date but very much conscious that even five months, six months or eight months of time in which we have measures that are not properly balanced where we do not know how they are panning out in reality, and where we do not know how they might be improved, is regrettable. I regret the process. It is unacceptable that a review was not published prior to this discussion. It would have eased the discussion a lot if we had been able to respond and I refer, for example, to the nuance that we have not been able to discuss and to the changes happening in terms of the mental health provision Act. There are certain other concerns about some of the other laws that came through last November or December. There are differences and nuances here that we are not able to discuss. We have only addressed the core danger of an indefinite process, which is good, but more is needed.

The Minister has pointed to the different stages but those are all of the stages that lead to the regulations and immediately after them. What we need to look at now is the experience of citizens in this State under those regulations so that we adapt and respond in our law, accordingly, because those regulations are more far reaching than regulations usually would be.

I thank the Minister for acknowledging that the powers did not sit easily with him. At least he has ensured that they will not sit indefinitely with him.

That is an improvement but, nonetheless, I ask the Minister to commit to publishing a review in a timely manner before he comes back to the House for an extension. I must say one final thing, which I say every time. One of the factors that will affect whether we are asked for an extension in November will be whether Ireland and the EU have supported a trade related intellectual property rights, TRIPS, waiver and have taken the actions they can take to ensure a wider global level of vaccination.

As it is now 10.15 a.m.-----

It is most unfortunate that we are in this situation.

Is this a point of order?

I am someone who represents the mid-west.

Is this a point of order?

The situation in Limerick is critical. This legislation is extremely important to protect not only the people of Ireland, but the most-----

The Government parties should have given us more time then.

We were only given 45 minutes.

The Senator will resume his seat.

The people of Limerick and the mid-west are in a situation in which-----

We were only given 45 minutes.

-----there are approximately 800 cases.

I must put the question. I am required to put the following question in accordance with an order of the Seanad of 1 June 2021: "That Fourth Stage is hereby completed, that the Bill is hereby received for final consideration and that the Bill is hereby passed."

Question put:
The Seanad divided: Tá, 24; Níl, 12.

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Clifford-Lee, Lorraine.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Horkan, Gerry.
  • Kyne, Seán.
  • O'Reilly, Joe.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.

Níl

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Boylan, Lynn.
  • Gavan, Paul.
  • Hoey, Annie.
  • Keogan, Sharon.
  • McDowell, Michael.
  • Moynihan, Rebecca.
  • Ó Donnghaile, Niall.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.
Tellers: Tá, Senators Lisa Chambers and Seán Kyne; Níl, Senators Michael McDowell and Sharon Keogan.
Question declared carried.