Solidarity with all affected by Coronavirus
19 March 2020
Spokesperson on Foreign Affairs, Brexit, Northern Ireland and Justice
Remarks by Brendan Howlin TD on second stage of the COVID-19 Emergency legislation, 19th March 2020.
I would like to express my own solidarity – and that of the Labour Party – with everyone who is affected by the coronavirus, especially those who are ill, those who are the frontline of providing health and social care, and the amazing 30,000 or more people who have volunteered to support our health services in this time of crisis.
People have shown extraordinary resolution in the way that they have co-operated with social distancing and other life-altering advice from our health officials.
And people have demonstrated a tremendous, warm community spirit in the way that they have reached out to support those who are vulnerable, including finding innovative ways of helping people without breaking the need for social distancing.
Today, as a society, we have greater scientific knowledge and research facilities to work on vaccines and treatments, we much improved hygiene, and we are part of unprecedented global co-operation. We can and we will defeat this disease.
Everyone must play their part, not least vital measures such as social distancing, rigorous handwashing and isolating themselves if they are at risk.
The Government’s Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020 is another vital part of the national effort to overcome the coronavirus outbreak.
Labour support what the Bill is trying to achieve. But we believe the law can be improved.
I hope the Government will carefully consider how to improve the Bill today.
We will set out our two amendments at Committee Stage.
In addition, we have other concerns with the Bill as currently worded.
There is a serious difference in terminology between the Social Welfare Act amendments and the Health Act 1947 amendments.
The Social Welfare Act amendments confer entitlements on those who are diagnosed as actually having Covid-19, or who are a “probable” source of infection, or who have been formally detained.
The Health Act amendments deal more broadly with powers in respect of persons who are a “potential” source of infection.
Many of those who are self-isolating at home at the moment, in line with HSE advice, are doing so because they are potential sources rather than probable sources of infection.
Probable means more likely than not. A GP could not diagnose someone as a probable source of infection unless they, first, had been in close contact with a confirmed case and, second, were showing at least some symptoms.
If they are merely potential sources of infection and have not been notified that they are probable sources, but are nonetheless in self-isolation because of formal advice, then it appears that these Social Welfare Act amendments do not extend to them.
We need to know the thinking behind having entitlements confined to probable sources, but powers extended to potential sources. It may be that many people who are away from their jobs will fall into the gap created by having two separate definitions in this Act.
Could the Government explain the reason for the deviation between the two terms?
Could we simply use the term “potential” in all cases to remove the possibility of creating a gap in the law?
On another technical point, which may be a flaw in the Bill as currently drafted, can the Government confirm whether or not the new offence of contravention of a regulation under the new section is an arrestable offence?
Nothing in the original Act nor this Bill seems to make the new offence an arrestable offence, which would mean that the Gardaí would be limited in their power to enforce it.
Section 11 brings in a new Section 38A of the 1947 Act to allow for the forced detention of persons who will not self-isolate.
As currently worded, this requires a medical officer to believe, in good faith, that the detention is appropriate. However, the Bill should also provide that the medical officer in question must have “reasonable grounds” for making that decision. That is not currently in the section.
Gardaí have various powers of arrest but must have “reasonable grounds” to exercise such powers. It is a basic protection to ensure proportionality.
Subsections (5) and (6) of new Section 38A, inserted by Section 11 of this Bill, provide for a review that is triggered at the request of the detained person. There is no provision that persons must be informed of this right. That should be addressed.
Subsection (4) of Section 38A says that the detention must be kept under review and a medical examination must be carried out no later than 14 days from the date of the detention.
Subsection (1)(d) of Section 38A states that the detention continues “until such time as the medical officer certifies that the person’s detention is no longer required”.
There is a need to link to subsection (4). The section should state that the medical officer who ordered the initial detention must receive a report of such examination, and review whether the detention is still appropriate and necessary.
Some of the people who will be detained may be elderly, mentally ill or have other infirmities. Thus, there should be an additional provision that even if they do not request a review there should automatically be a review, by another medical officer, within 28 days of their detention.
The terms of the order that must be signed by the medical officer authorising the detention should be in an annex or schedule to the legislation. This is important so that the order in question is clear and authorises the detention so that it can be used by the relevant medical officers around the country. Otherwise, there will be challenges to the detention of such persons in the High Court if doctors are making up the terms of such orders themselves.
Finally, I would just like to add one plea to Government.
Local radio is a vital source of information, and people in my own constituency of Wexford and elsewhere listen assiduously to local radio for news and advice.
Due to the current crisis, many businesses have pulled their ads, cutting off vital funding for local radio. Already some staff have been laid off.
Can the Government please ensure that local radio is supported with a small amount of money to ensure that this vital lifeline remains fully active throughout the crisis.
Section 2 envisages the Act ceasing to have effect on the 9th May 2020. It is then envisaged that the Act can then be extended, indefinitely, by Government order, unless annulled by the Houses of the Oireachtas.
We don’t feel that this is a best mechanism to achieve a “sunset clause” in this Act.
We don’t know with what frequency the Houses of the Oireachtas will be able to meet in the coming weeks.
An alternative, which we have provided for in Labour’s first amendment, is to allow the new Act to operate for six months, and to require a resolution of each House of the Oireachtas to extend it beyond that point.
The Government would still have the power to cause effects of the Act to expire sooner than six months.
And on a technical note, our amendment provides that amendments made to other legislation by this Act will expire. Normally, even when an Act expires, amendments it makes to other legislation do not expire automatically, but our amendment provides that all changes to other law will be reversed upon the expiry of this emergency Act.