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THE GOVERNMENT 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 now we know that this is wrong. There will be no additional application: there will be additional advice.
Minister McEntee said yesterday that the Gardaí would not receive new powers. The Garda commissioner said such powers are not necessary and that a significant expansion of the Garda checkpoints would suffice. Now we have a new regulation that, as expected, does not foresee any change in this regard.
In the absence of new powers, there can be no further application, 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. Unsurprisingly, this has caused a degree of public confusion.
Advice vs Law
There are three types of restrictions the government is currently using to address Covid-19: counseling, a “civil offense,” and a criminal offense. The advice is just that:advice“And there is no written rule in the law and, as a result, there is no way to enforce it.”
A “Civil crime”, as described by the Tánaiste, it refers to a non-criminal provision in the Covid regulation. This is a novel concept, unknown by law. The regulations state that a particular thing will not be done, but there is a legal consequence: there is no penalty for doing it and there is no way to enforce it.
A criminal offense, or criminal provision, allows people to be prosecuted for non-compliance; under the current regime, with a possible maximum penalty of € 2,500 fine or up to six months in prison.
In the early days of the shutdown, most of the movement restrictions and other measures were binding rules, with a possible criminal penalty for not following them. The Gardaí used these powers sparingly, and the public largely followed the rules without the need for sanctions.
More recently, when the government has introduced legal rules designed to control behavior, it has generally made them unenforceable “civil crimes”.
This applies to the two main parts of Level 3 restrictions: the rule that limits visitors to the home and the rule that you cannot travel from a Level 3 county to another county, or another country, without an excuse. reasonable.
If the Gardaí discovers that you violate these rules, it has no power to intervene, unless you are violating some other applicable law (for example, under public order law) by taking this action.
They cannot threaten you with prosecution, fines or other sanctions, in relation to non-compliance with Covid measures, because there are no sanctions established in the law. They can only tell you what the rules say.
Trust the acceptance of the public
In fact, very few of the Covid restrictions that apply to the common citizen carry potential criminal penalties. Failure to wear a mask in the required settings can lead to criminal liability, as can failure to complete a passenger locator form after a trip abroad.
Otherwise, the movement and gathering restrictions do not carry any sanction, and the threat of criminal prosecution is only in relation to people who organize formal events or run businesses, pubs, etc.
The question is: is this enough to change behavior? And does this put the Gardaí in a tough spot where the public expects them to enforce these rules when they can’t?
NPHET, in its letter to the government Sunday night, strongly hinted that more active enforcement of the rules was necessary. This could take the form of punishing offenders, but even the threat of such punishment might be enough.
The public looks to the law for guidance. If a rule is binding and enforceable, and if it carries the possibility of punishment, then the public is more likely to strictly follow this rule, rather than exercise their own judgment.
Laws define the parameter of our conduct, but a law without accompanying punishment is not likely to be taken as seriously as one that triggers a possible criminal disposition.
Members of the public also rely on the Gardaí to intervene when they see rule violations, but the Gardaí currently often has no power to help. Gardai is being asked to pressure people at checkpoints to comply with advice, but they are not backed in their effort by the authority of the law.
Ultimately, this can undermine public faith in our system of rules to combat the pandemic.
There are legal difficulties with some forms of enforcement, particularly when entering private homes. But these may not be insurmountable, and the law could easily provide powers to enforce travel restrictions and outdoor social gatherings.
Trying to ensure compliance with public health measures through persuasion and advice is a worthy and admirable goal, as is the desire of the Gardaí high command to monitor by consent and not alienate the population.
No news is bad news
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But, as our first experience with blocking shows, providing enforcement powers doesn’t mean we have to abandon this strategy or use enforcement powers across the board. Powers like this can be reserved for extreme cases of default.
But this would give the Gardaí more authority to insist on compliance and send a public message about the seriousness of these rules.
Dr. David Kenny is Adjunct Professor of Law at Trinity College Dublin and Coordinator of the COVID-19 Law and Human Rights Observatory.
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