THE GOVERNMENT’S ANNOUNCEMENT that the entire country would move to Level 3 restrictions under the Living with Covid-19 framework came with a suggestion that this would be accompanied by additional enforcement measures.
But we now know this to be incorrect. There will be no additional enforcement: there will be additional advice.
Minister McEntee said yesterday that the Gardaí would not be receiving any new powers. The Garda Commissioner said that such powers are not necessary and that significant expansion of Garda checkpoints would suffice. We now have new regulations that, as expected, don’t provide for any changes in this respect.
In the absence of new powers, there can be no additional enforcement, because most of the measures that exist under Level 3 regulations are not legally enforceable. All the Gardaí can do is recommend that people follow the rules. This has, unsurprisingly, caused a degree of public confusion.
Advice vs Law
There are three kinds of restrictions that the government is currently using to address Covid-19: advice, a “civil offence”, and a criminal offence. Advice is just that —advice—and there is no rule written down in law and, as a result, no way to enforce it.
A “civil offence”, as the Tánaiste described it, refers to a non-penal provision in the Covid regulations. This is a novel concept, not known to the law. The regulations state that a particular thing shall not be done, but there is no legal consequence—no penalty for doing it, and no way to force compliance with it.
A criminal offence, or penal provision, allows for people to be prosecuted for non-conformity; under the current regime, with a potential maximum penalty of a €2500 fine or up to six months imprisonment.
In the early days of the lockdown, most of the movement restrictions and other measures were binding rules, with potential criminal sanction for not following them. The Gardaí used these powers very sparingly and the public largely followed the rules without penalties being needed.
More recently, where the government has introduced legal rules aimed at controlling behaviour, they have generally made them unenforceable “civil offences”.
This is true of the two core parts of the Level 3 restrictions: the rule limiting visitors to the home, and the rule that you cannot travel from a Level 3 county to another county, or another country, without a reasonable excuse.
These rules are written down in regulations but are unenforceable. Some of the restrictions, such as limits on meeting people socially outside your home or garden, are not contained in the rules at all and are merely advice.
If the Gardaí find you breaching these rules, they have no power to intervene, unless you are breaching some other enforceable law (for example, under Public Order legislation) in taking this action.
They cannot threaten you with prosecution, with fines or other penalties, in relation to breach of Covid measures, because there are no penalties set out in law. They can only advise you of what the rules say.
Relying on public buy-in
In fact, very few of the Covid restrictions that apply to the ordinary citizen carry potential criminal penalties. Failing to wear a facemask in required settings can create criminal liability, as can failing to fill in a passenger locator form after travel abroad.
Otherwise, the movement and meeting restrictions carry no penalties at all, and threat of criminal prosecution is only in relation to people organising formal events or running businesses, pubs, etc.
The question is: is this enough to change behaviour? And does this put the Gardaí in a difficult situation where the public expects them to enforce these rules when they cannot?
NPHET, in its letter to the government on Sunday night, strongly implied that more active enforcement of rules was necessary. This might take the form of punishing rulebreakers, but even the threat of such punishment might be sufficient.
The public looks to the law to guide them. If a rule is binding and enforceable, and if carries the possibility of punishment, then the public might be more likely to follow this rule strictly, rather than exercising their own judgment.
Laws define the parameter of our conduct, but a law without an accompanying punishment is not likely to be taken as seriously as one which triggers a potential penal provision.
Members of the public also rely on the Gardaí to intervene where they see breaches of rules, but the Gardaí are currently often powerless to help. Gardai are asked to pressure people at checkpoints into complying with advice, but they are not backed up in their effort with the authority of law.
This may ultimately undermine public faith in our system of rules to combat the pandemic.
There are legal difficulties with some forms of enforcement, particularly with entering private homes. But these are perhaps not insurmountable, and enforcement powers for travel restrictions and outdoor social gatherings could be provided for in law without great difficulty.
Trying to secure compliance with public health measures with persuasion and advice is a worthwhile and admirable goal, as is the desire amongst senior Gardaí to police by consent and not alienate the population.
But, as our first experience with lockdown shows, providing enforcement powers does not mean that we have to abandon this strategy or use enforcement powers widely. Such powers like this can be reserved for extreme cases of non-compliance.
But this would give Gardaí more authority to insist on compliance and send a public message about the seriousness of these rules.
Dr David Kenny is Assistant Professor of Law at Trinity College Dublin and is a coordinator of the COVID-19 Law and Human Rights Observatory.
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