‘We Are Giving Guidelines Pretending They Have The Force of law’

This morning.

In the Dáil.

Labour TD and the party’s spokesman on justice Brendan Howlin (top) put forward several amendments to the Criminal Justice (Enforcement Powers) (Covid-19) Bill 2020.

The first amendment called for the deletion of the words underlined in red (above).

He explained:

My amendment seeks to delete that final half-sentence which is line 14, namely, “whether in relation to a relevant provision or otherwise”. The interpretation section, under section 1 of the Bill, defines a “direction” given by a member of An Garda Síochána as “a direction given under section 31A(7) of the Act of 1947 in relation to a relevant provision”.

Therefore, under the direction section of this Bill, a member of An Garda Síochána can legitimately enter a premises for the purposes of giving direction in regard to a relevant provision of this Bill. Section 3(1)(a) expands that so they can enter the premises for the purposes of giving a direction not only under the provisions of this legislation, but also “or otherwise”, whatever “or otherwise” might mean.

…. We need to clarify that what we are giving here is the power for members of An Garda Síochána, without warrant, to enter premises to do inspections.

…We need to ensure that the provisions we are providing for in this legislation are met, and where they are not met, there is the capacity to give a direction to the proprietor of such a premises to comply with the legislation.

It is often the case the drafters slot in words like “or otherwise”, giving a much broader scope than this House would intend to legislation.’

A Dail vote on implementing the amendment subsequently failed.

Meanwhile,

Minister for Justice Helen McEntee

During a debate on the bill last night, Mr Howlin said:

“I listened carefully to the Minister, Deputy [Helen] McEntee, at the beginning of this debate but we do not actually know what specifically is to be criminalised either now or into the future.

…At the briefing on Friday, I asked the Minister for Justice and Equality’s officials what specifically the offences are and where are the regulations are. These crafters of the legislation before us told me they did not know.

“I have never dealt with a situation where the crafters of the legislation did not know what the crimes being specifically legislated against were.

They said that it was a matter for the Minister for Health and that it would be published on Monday. In fact, the Minister for Health signed 14 pages of regulations yesterday. The difficulty with the regulations is that some of them are what are known as “penal” and some are not penal. What is the difference?

“In essence, non-penal regulations are entirely advisory and nobody can enforce them. The penal regulations are enforceable. There is a strong view in jurisprudence that a law that is not enforceable is not a law at all. Regulations that do not carry a penal sanction are not regulations.”

Meanwhile…

Deputy Howlin went through  some of the 14 pages of regulations signed by the Minister for Health Stephen Donnelly yesterday ‘to see which are penal and which are not,’.

Regulation No. 5 applies to events in private dwellings of no more than six persons from no more than three households. This is not a penal regulation. It is unenforceable, either civilly or criminally, despite the utterances of the Taoiseach that the Minister for Health can prosecute. There is no such capacity. I have checked with lawyers. It is merely advisory. If this is not the case, perhaps the Minister, Deputy McEntee, will be very clear on the difference between penal and non-penal.

“Regulation No. 7 applies to cinemas, art galleries, museums and auditoriums with stages and fixed seating not exceeding maximum attendances of 50 people. Again, this is not a penal provision.

Regulation No. 8 applies to weddings and imposes a maximum of attendance of 50 people, including staff. Again, it is not a penal provision and there are no enforceable powers.

Regulation No. 9 is also a non-penal provision and covers sporting events. It limits necessary persons, participants, subs, coaches, medics and so on. Regulation No. 10 covers training. Again, it is a non-penal regulation. They are all encompassed in the same statutory instrument, SI 326 of 2020, which was published yesterday. Some of the regulations are merely advisory and some have the force of law.

“We need to be very clear on what we are doing here. What is penal and will have the force of law? Regulation No. 6 applies restrictions to social recreational exercise, cultural entertainment or community events, other than those dealt with previously, and confines the numbers of persons attending to no more than six indoors and no more than 15 outdoors. This applies to the non-private household gatherings.

“Regulation No. 11 covers alcohol venues and continues the bans already in effect on casinos, nightclubs and pubs where no meal is served. They are penal provisions. A new closing time of 11.30 p.m. for pubs and restaurants is introduced in new regulations Nos. 11 and 12. Of course, off-licences are excluded, which is a penal provision.

“Regulation No. 13 provides that with effect from tomorrow, 3 September, businesses and services where drink is served for consumption on the premises must keep records of the time and date of arrival of customers, and a record of the substantial meals ordered. Food and drink must be consumed while seated at a table. Again, this is a penal provision that has the force of law.

“While one must consume food at the table, which is a penal provision, other aspects of the regulations, for example social distancing and the maintenance of 6 ft are not penal provisions and are unenforceable.”

Anyone?

Earlier: “Most Of Us In The Hospitals Are Not Seeing This Big Surge Of Cases”

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