As one of its first acts in responding to Covid-19 in Ireland, the government created extra powers for An Garda Síochána to assist with enforcing public health guidelines.
Under the first Emergency Health Act, passed in March 2020, the Minister for Health was empowered to make regulations restricting our rights in order to stem the spread of Covid. Simon Harris was the Minister for Health until June 2020 when Stephen Donnelly replaced him.
The act also provided that Gardaí were allowed to direct a person to comply with these rules. Where someone failed to do so, they could be arrested, tried and, if convicted, face a prison sentence of up to 6 months or a fine of up to €2,500. This set the blueprint for what was to come – using the police for social control.
From March until June, Simon Harris made numerous regulations limiting our rights to movement, to meet friends and family, to organise events, and providing strict protocols for the operation of businesses such as pubs and restaurants. All of these early regulations were designated as penal provisions meaning we would be charged with a crime if we didn’t comply.
After sustained campaigning from the Irish Council for Civil Liberties and others the government dropped the criminal sanctions from the regulations limiting our movement in June.
This was positive. However, with a rise in cases and a new government, the response returned to a reliance on policing over other ways of enforcing social behaviour such as better communication, targeted messaging and social solidarity. This time, however, along with civil liberty advocates, the Gardaí resisted proposed new powers.
In August, we saw a worrying proposal to allow Gardaí to enter private homes to break up house parties. Entry without consent into a private house is a clear invasion of privacy. Normally, it’s only allowed in strict circumstances such as risk to life. Otherwise, a court has to give permission.
Both the ICCL and the Association of Garda Sergeants and Inspectors came out clearly against this and the Garda Representative Association expressed concerns. The government dropped the proposal.
Regulations had provided strict rules for the reopening of pubs such as the requirement that people must order a meal of at least €9 when ordering alcohol. In a press release, the Minister for Justice, Helen McEntee, said that these rules were being complied with by the vast majority of licenced premises.
However, in response to reports that some pubs weren’t complying, rather than engaging publicans and launching a public information campaign, government reached for the blunt stick of intrusive garda enforcement again. This time the law passed.
At the end of August, the Criminal Justice (Enforcement Powers)(Covid-19) 2020 Act was enacted which allows gardaí at any time to enter a pub or restaurant and inspect it for compliance with Covid rules. There is no requirement for suspicion of non-compliance or for Gardaí to be in uniform.
If the gardaí think there is a breach of health rules they can direct the person in charge to comply in whatever manner they see fit. If a pub or restaurant owner fails to do as they are told, a superintendent can direct that the pub or restaurant must close for the rest of that day. If the garda considers there is a repeated lack of compliance the garda can apply for a longer closure order from a court (from three to thirty days).
This is significant in that before the court is involved the garda can decide to mete out punishment for non-compliance. Punishment for breaking the law is usually reserved for a court following a trial. Investing individual gardaí with this amount of discretion is a significant increase in power and as we all know increasing power means increasing the risk of abuse of that power.
The Minister for Justice acknowledged the fact that these powers were extraordinary but emphasised that they would be temporary.
She highlighted the 9 November end date, in line with the end date for the Emergency Health Act. But then, come October, without public debate or much scrutiny, this date was extended to 9 June 2021, as were all of the emergency powers in the Emergency Health Act.
Lack of debate and scrutiny has been a feature of all of the emergency regulations made by the Minister for Health under the emergency laws. This is not in line with our democratic values and has to change.
Later in October, the government introduced even more powers for Gardaí. A new law provided for on the spot fines and garda powers around house parties, which are also highly intrusive. As well as the power to stand at your front door and direct you to stop a party, Gardaí were given the power to stop people who they believed were going to a party. If you refuse to follow a Garda direction not to attend a party you can now face trial. These are powers the Gardaí don’t want.
The head of the Garda Representative Association said that Gardaí were concerned that implementing fines would clog up the system and that the number of house parties had been few and far between.
The Association of Garda Sergeants and Inspectors also expressed concerns about the practicalities of implementing fines for house parties.
Despite these concerns the Minister for Health, Stephen Donnelly has just signed new regulations on 21 November that came into force on 22 November outlining such fines. The fines are €80 for not wearing a face covering, €100 for leaving your home without reasonable excuse, €500 for having a gathering in your home with people outside of your household or outside of your paired household, and €500 for having an event outdoors attended by people who reside in more than two households. The fines on movement and events may be imposed until 1 December unless phase 5 lockdown regulations are extended.
This quick reaching for extra garda powers to implement health guidance is a slippery slope. Just last week following reports on social media of crowds drinking in the streets, we heard more proposals for expanding garda powers. This is despite the fact that by-laws exist that prohibit public drinking on Dublin streets and public order laws exist that give Gardaí vast powers to move people on.
Thankfully, this proposal was shot down by cabinet but it suggests that expanding garda powers may be seen by some as a PR exercise rather than a considered response to significant problems.
Of course, we need to take steps to ensure people are complying with health guidelines. But behavioural specialists have been clear that the best way to ensure compliance is through reinforcing good behaviour with encouragement, targeted messaging and social solidarity and not through criminal sanctions. Criminal sanctions can have a negative effect on public health because people who may have symptoms may not come forward to seek the help they need for fear of sanction.
One study, conducted by NUI Galway with the Montreal Behavioral Medicine Centre with 65,000 respondents, suggests that criminal sanctions do social harm, not social good by exacerbating existing inequalities and risking social disorder and conflict.
We all need to continue to follow public health guidance: wash hands, social distance, wear a mask, limit contacts and don’t congregate. But the government must encourage compliance by appealing to our sense of the common good not by threatening us with sticks and sanctions.
Most of all, we need to ensure that as we combat Covid, we don’t damage our democracy or allow the people meant to protect us to unduly restrict us.