On Friday 23rd October the gravely flawed Health (Amendment) Bill 2020 passed all stages in Seanad Éireann in a rushed manner which disregarded the constitution in the name of emergency legislation. The practice of ramming legislation through the Houses of the Oireachtas and imposing the guillotine has resulted in defective legislation being passed without any opportunity for adequate debate or amendment.
Senator Michael McDowell protested against this “dud” Bill during the debate, indeed government senators agreed with his observations on the flawed provisions of the Bill which, he said, occur when legislation is rushed without amendment. Fine Gael Senator Barry Ward agreed as follows: “I agree with what Senator McDowell has said. As I have stated on many occasions in this House, the notion of rushing through legislation in all Stages is lamentable in every circumstance. I do not disagree that it is occasionally necessary. However, we have a poorly drafted Bill here.”
At Committee Stage Senator McDowell drew attention to elements of the Bill which were probably unconstitutional as follows:
Section 6D, which is to be inserted into the 1947 Act by this section of the proposed Bill, allows the Minister to make regulations “prescribing such one or more penal provisions as are specified in the regulations to be dwelling event provisions.”. The proposed section 6E states, “In proceedings for an offence under this section consisting of a contravention of a dwelling event provision, it shall be presumed, unless the contrary is proved, that the occupier of the dwelling in respect of which the offence is alleged to have been committed was the event organiser.”. I have made my point about an occupier and I will not repeat it but the effect of these sections is to allow the Minister, by regulation, to reverse the onus of proof in criminal proceedings as a matter of choice. That is an impermissible delegation of legislative power. As the Minister has designated the offence as such in a statutory instrument that has never been looked at by these Houses, the onus of proof would be reversed against people.
Michael McDowell later voted against the Bill which was passed following the all stages debate.
The text of Senator McDowell’s contributions to the debate is here:
Health (Amendment) Bill 2020 – Second Stage
First, I must protest that this legislation has been rushed through without adequate debate. There is no excuse for a situation where Dáil Éireann is considering a Bill in the morning and it comes to us in the afternoon especially when this Bill is badly drafted. I draw the Minister of State, Deputy Feighan’s attention to one or two aspects of this Bill which he may regret not having spent slightly more time with his colleagues putting in place.
I draw his attention to the definition of “occupier” at the bottom of page 6 of the Bill. It states:
‘occupier’ means, in relation to a dwelling—
(a) a person who—
(i) resides in the dwelling, and
(ii) is the owner of the dwelling,
or
(b) a person who resides in the dwelling pursuant to a licence ( except where the owner of the dwelling also resides therein);
In other words, there are two categories of people. The occupier is a person who resides in the dwelling and is the owner of it and that includes a tenant by the way. Second, a person who resides in the dwelling pursuant to a licence, therefore, somebody who is there, permitted to be there by the owner, except where the owner of the dwelling also resides there. A person who is a wife, a husband, a partner, a son, a daughter or a guest living in a house is not an occupier if the owner of the house also resides in that dwelling. That is the first mistake that has been made here.
I also draw the Minister of State’s attention to page 8 of the Bill which states: “where a member of the Garda Síochána suspects, with reasonable cause, that an event in contravention of a dwelling event provision is taking place, he or she may direct the occupier to require and cause all persons attending the event … to leave immediately.” Therefore, a garda cannot direct the son or the daughter of the person who owns the house because they are not a licensee under the badly drafted definition of “occupier” because the owner of the house actually lives there. If the owner is not there, a garda cannot direct those people to get people to leave the House. That is a big mistake.
Also subsection (3) near the bottom of page 8 states “require the occupier to provide the member with his or her name”. Therefore, the son, wife or husband of the owner where the owner resides in the house, even if the owner is not there, cannot be asked to deliver his name, to clear the House or whatever. This is the kind of mistake that is made when legislation is rushed.
The term “occupier” is defined in the Bill as someone who resides in the dwelling, and is the owner of the dwelling, or, alternatively, “a person who resides in the dwelling pursuant to a licence [that would be a family member] (except where the owner of the dwelling also resides therein)…”. A garda cannot ask the wife, the son, the daughter or whoever else, or the guest or the cousin, who is there for her or his name and address and cannot ask her or him to get people to leave the house. This would not have happened if this Bill had been carefully thought through. It is a huge hole in the Bill. It means that a garda coming to a house, knocking on the door and demanding to see the occupier and asking who is the owner of the house, would be told that the owner of the house is away. On asking, “Who are you?” the garda would be told that he is speaking to the owner’s son. If the garda said that he wanted the son’s name and address and wanted him to clear the place out, he would be told that he had no power to do so under the section because the son is not deemed to be the occupier because the Bill was badly drafted in the first place.
I do not understand for the life of me why we could not have had another 48 hours to look at this legislation to see whether there were mistakes in it. There is a huge hole under the waterline of this legislation. If a member of An Garda Síochána arrives at the door of a house, the person who opens the door and says he is the son of the owner is not the occupier if the owner resides in the house even though the owner is not there. What a crass error to make, and it has been made here. The powers we are rushing through will be useless in the hands of the Garda because of the rush with which this legislation has been put through.
I need hardly point out to the Minister of State that the Bill, on page 5, states, “In proceedings for an offence under this section consisting of a contravention of a dwelling event provision, it shall be presumed, unless the contrary is proved, that the occupier of the dwelling in respect of which the offence is alleged to have been committed was the event organiser.” The poor husband who was not there at all shall have a presumption against him. By the way, that presumption cuts the other way because the person who actually ran the drink party and invited in all his pals will be presumed not to be the event organiser until the contrary is proven.
This Bill is a joke. It is seriously defective. It is coming here in circumstances where it cannot even be amended now. It was rushed up here from the convention centre for us to look at. We were not given any opportunity to put amendments to it. It is thrown at us in a hurry. It is not workable. A garda will neither be able to ask somebody at a door who is a son, daughter or wife, for his or her name nor will the garda be entitled to ask him or her, because such persons are not occupiers, to get everybody in the house to leave. What a joke.
Committee Stage
Section 1 is the definition section of the Bill. One might expect that care would have been taken to provide proper definitions in section 1, rather than ignore a real problem with the Bill.
I pointed out to the Minister that in the last Seanad we had a Bill that had left Dáil Éireann in a shambles and arrived up in the Seanad. It was called by a certain person a “dog’s dinner” of a Bill. As a result of that it was debated at great length, as the Minister of State will recall, over a long period of time. The reason was, there was a flaw in the Bill at the beginning. I have no doubt that the then Minister, former Deputy Ross, would have pushed it through against the Seanad’s wishes under the Constitution had he got away with it, but he could not because the Bill was flawed. It was a peculiar thing.
Senator Ward has identified the flaw that I have identified here. I want to put it on record that it is for want of a proper definition in section 1 of who an “occupier” is. I also want it on the record that we are being asked to proceed with a Bill that will not work. Gardaí are being given bogus, dud, so-called powers, which will not work for the reason I will outline. On page 6 of the Bill the term “occupier” is defined as meaning “a person who — (i) resides in the dwelling, and (ii) is the owner of the dwelling”. This is one type of person and this includes a tenant of the welling because an owner is somebody who has an interest in it.
An occupier is also defined as “a person who resides in the dwelling pursuant to a licence”. I guess this is a licensee: a member of the family, a grandfather, grandchild, son, daughter, husband, wife, cousin, lodger or whoever it may be. This person resides in the dwelling pursuant to a licence. However, then there is a ridiculous provision “except where the owner of the dwelling also resides therein”. The result of this in the text means that where the owner resides in the premises his or her son, daughter, wife, grandfather, grandson, guest, lodger or anybody, is excluded from the term “occupier”. Consider the consequence of that. The owner is not present on some occasion and a house party is going on. The gardaí arrive at the door and ask for the occupier’s name and address but he or she is not there. To whom do they give a direction to vacate the premises and tell everyone to go home who has not an entitlement to be there? That direction is to be given to the “occupier”.
The occupier, however, is not there. Under this section the gardaí have no power at all to direct the son, daughter or whoever to direct everyone to leave because the section is drafted to define “occupier” as meaning either the owner who resides in the premises, or somebody else who resides in the premises provided that the owner does not reside in the premises. This is like driving a car straight at a wall. It is insane to proceed with this Bill without a proper definition of “occupier”. It defies belief that Dáil Éireann was convened this morning to rush this Bill through.
The Bill has come here now, and a very serious flaw that drives the legislative car into the wall cannot be addressed because everybody in the convention centre has gone home for the next fortnight, or whatever it is. We are being told that we must pass this Bill in the next 50 minutes knowing that it has a massive hole in it and that the purported powers we are giving to members of An Garda Síochána will not work. They are a dud. They are a joke. They are a fraud as a power. If a grandmother owns the house and is not there and her son has 30 people in the house, he is not the occupier and cannot be told anything. The most ridiculous thing is that the poor owner of the house is presumed to be the occupier in any prosecution, which is even more ridiculous. The thing just does not stand up.
I appeal to the Minister of State, for whom I have great admiration because he is a reasonable man and has not been hoity-toity about this mistake in the legislation, to run up the white flag and to apologise because there is a problem here. The simple thing he could do is take an amendment now from the floor of the House. Perhaps Senator Ward’s amendment would suffice to deal with this issue because he agrees with me that this is a significant problem with this Bill. The Minister of State should tell Dáil Éireann that it got it wrong this morning, that it sent us a dud and that we are not proceeding with it. Alternatively, he could tell the Dáil that we are proceeding with it by amending it to make sure it works and it does what it says on the tin. Instead of that, we get this autopilot business. The Minister of State has happily half-distanced himself from the use of the guillotine, as have other Ministers today. The number of apologies that have been made to the House today is phenomenal.
It is not the end of the world if Dáil Éireann has to be reconvened on Monday or Tuesday to deal with this Bill with an amendment from us. What is the end of the world is to deliberately pass a Bill we know is a dud. All that is required is the insertion of a proper definition in section 1, the definitions section, that is carefully drafted and would actually work. Instead, we have the diametric opposite. We have provisions that gardaí can give directions to the occupier of a house to send everybody home, but the occupier could be anywhere else but in the house and not present to receive this. Gardaí can demand of them the name and address of the occupier but, of course, the occupier is not a member of the family because the owner of the house resides in it.
There are other people with amendments but I plead with the Minister of State. It is grotesque to go on with a Bill when he knows there is a big hole in it, and to say his instructions from the Chief Whip are to bash on with this by driving the car into the wall and going to the panel beaters later. To say “I don’t care, that’s the way it is” is not the way to treat the Oireachtas in its entirety and it is certainly not the way to deal with a House that wanted to debate this. There is a whole stack of amendments down. Members are being told that they cannot amend anything and that the Government knows best. The Government wants to pass the Bill as it is, with this massive hole in it making it more or less useless. It is pretending to the public that when a Garda knocks on the door, he has a right to direct people to go home when he does not because the owner of the house is not present. That is ridiculous so I am opposing the section.
Section 6D, which is to be inserted into the 1947 Act by this section of the proposed Bill, allows the Minister to make regulations “prescribing such one or more penal provisions as are specified in the regulations to be dwelling event provisions.”. The proposed section 6E states, “In proceedings for an offence under this section consisting of a contravention of a dwelling event provision, it shall be presumed, unless the contrary is proved, that the occupier of the dwelling in respect of which the offence is alleged to have been committed was the event organiser.”. I have made my point about an occupier and I will not repeat it but the effect of these sections is to allow the Minister, by regulation, to reverse the onus of proof in criminal proceedings as a matter of choice. That is an impermissible delegation of legislative power. As the Minister has designated the offence as such in a statutory instrument that has never been looked at by these Houses, the onus of proof would be reversed against people.
There is a big constitutional issue there and I am not the only person who has said that. My colleague from the Bar, Deputy McNamara, has voiced this view as well. Just because this is emergency legislation the Constitution does not fly out the window.