Legislation allowing gardaí enter homes to break up house parties 'unlikely'

THERE HAVE BEEN calls for the government to reconvene the Dáil as questions are raised over plans to legally enforce some of the new restrictions announced yesterday, including numbers at social events.

Under the new regulations, the number of visitors at a house gathering is to be limited to six people from three households and just six people - again from three households – can sit at a table together at a restaurant or bar.

Speaking to RTÉ’s Prime Time last night, Health Minister Stephen Donnelly said: “It is clearly not enough to say we need everyone to follow the guidelines. We all know that there are more and more house parties happening.

“Unfortunately nobody wants to be the guy that says ‘stop the house parties’, but the data that the public health doctors have is unambiguous – it is causing a spread. 

Whilst maybe the people at these parties are not at risk themselves – although they could well be – it’s entirely possible that they’re then carrying the virus to people who are at risk. So the decision we’ve taken is to say in cases like this or in cases where we have bars that are clearly not obeying the same guidelines as the vast majority in the country are, we are moving from recommendations and guidelines to enforcement powers – and I think that’s the right thing to do.

Donnelly said this will require legislation but that the “timing has not been worked out”. The Attorney General, Paul Gallagher, has been contacted in relation to the legislation. 

Not impossible

David Kenny, Assistant Professor of Law at Trinity College Dublin and co-author of the leading text on Irish constitutional law said allowing for a warrantless search of a dwelling is complicated by the Constitution, but “the Constitution does not make it impossible”.

“The Constitution states in Article 40.5 that the dwelling of every citizen in inviolable and entered save in accordance with law. That means that the dwelling can be entered once there is lawful authorisation for the entry,” he told TheJournal.ie.

However, the courts have held that not every lawful authorisation—not just any power to enter a dwelling put into a law—is sufficient. The entry of a dwelling must be reasonable. For example, generally speaking, you need a warrant to search a premises, issued by a person independent of the investigation, who has been satisfied that there are reasonable grounds to conduct a search.

However Kenny said dwellings can be entered without a warrant in some cases where it is reasonable to do so.

“The courts have upheld such entry to conduct a lawful arrest, to prevent the destruction of evidence, and to protect people inside the dwelling,” he explained.

“There is nothing in our constitutional law to date that would suggest that a law could not allow a dwelling to be entered for the purposes of protecting public health in a pandemic.

This has not been tested in court, but if significant public health benefits could be shown, and there is some limitation on this power – a requirement of reasonable suspicion, which could be reviewed after the fact – it would seem to me that the courts would probably find it to be a reasonable interference with the protection of the dwelling.

The Irish Council for Civil Liberties (ICCL) today expressed concern at the introduction of legislation allowing gardaí to enforce public health advice. 

The council said public health advice should be “consent and education-based” rather than “policed by coercion”.

Sineád Nolan, public engagement and communications officer with the ICCL said currently gardaí can enter a household if they have a suspicion of a crime that has a sentence of more than five years attached, but said it is “unlikely” a sanction so severe would be applied to house parties. 

“That would be completely disproportionate. We feel it’s unlikely they will go down that route, it would be a bit ridiculous.”

Nolan said the narrative around house parties is a “distraction” from the environments in which many of the clusters recently have been identified, such as food processing factories and direct provision centres.

She said a better approach would be to use powers gardaí already have to remind people of public health advice, rather than attaching sanctions to social activities in private households.

Gardaí have been effectively managing house parties in that way for years and can respond to a call where somebody reports a disturbance or even a nuisance. That would be in line with the community policing strand – they can go to a house party, knock on the door, encourage people to leave and educate people. We see no reason that would need to change.

Nolan also questioned how the government expects gardaí to check that customers sitting together at a table in a restaurant are only from three different households.

“They need to work on their communication around this and also the logic around these measures.”

Breaches by businesses

Yesterday Taoiseach Micheál Martiin said powers for gardaí to immediately shut down a business would be introduced if that business was “flagrantly abusing the public health measures”.

“We do need immediate sanctions where there’s a clear breach of public health measures because that clearly has a ripple effect across the wider community,” he said.

An Garda Síochána has identified 138 potential breaches of guidelines at licenced premises since restaurants and pubs serving food were allowed to reopen. 

Over a five-day period last week, 13 potential breaches were identified, with customers in each case found consuming alcohol, with no evidence that food had been sold with it.

Deputy Commissioner, policing and security, John Twomey said there continues to be a high level of compliance among licensed premises.

“However, there remains a minority who are putting their employees, their customers and their local community at risk of getting Covid-19,” he said.

Calls to reconvene the Dáil

Labour Party leader Alan Kelly today said the decision in relation to increased powers for An Garda Síochána is welcome but “clarity is needed now if this will actually happen and if additional legislation is required for this”.

“If so the Dáil must be reconvened. It is bizarre that the Taoiseach said the Attorney General would now consider the need for this despite the measure being announced today. This just adds to the confusion.”

Social Democrats co-leader Catherine Murphy also said the Dáil should be recalled so clarity can be provided on how enforcement measures announced yesterday will have a basis in law and what form any required legislation will take.

“Unless there is a coherent approach by the government, there will be severe implications for our health service, education system and general economy,” she said.

“It is vital that all the relevant government ministers come into the Dáil next week and outline their short and medium-term plan for the country as we continue to live with this pandemic.”

The health minister has said today he would have no issue with the Dáil being recalled before the end of the summer recess, but no plans for this have been announced.