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Explainer: What powers do these 'last resort' measures give to gardaí? And will these powers be extended?

The Irish Council for Civil Liberties has argued that these laws aren’t needed given the public’s compliance with the Covid-19 restriction measures.

Gardaí patrolling in Dublin.
Gardaí patrolling in Dublin.
Image: Sam Boal/Rollingnews.ie

THE EXPANDED POWERS that have now been given to gardaí could see people fined €2,500 or face up to six months in jail if they fail to adhere to public health guidelines during the Covid-19 outbreak.

This morning, Justice Minister Charlie Flanagan described the measures – which last until the weekend – as a “last resort” but said that most people have so far complied with the guidelines they’ve been given on social distancing and remaining at home.

If there are a “small number” of people who wish to deliberately flout these guidelines, the gardaí’s new powers will be used as a “last recourse”, Flanagan told RTÉ Radio One’s Today with Sean O’Rourke. 

Concerns have been raised about these measures – which are set to remain in place for four days – with the Irish Council for Civil Liberties’ executive director Liam Herrick telling the TheJournal.ie that these new laws give gardaí “powers over areas of our lives that have never been regulated by police here before”. 

Herrick said that guidelines have been in place for 12 days at this point, and that if the public health guidelines are being adhered to as indicated the question must be asked why these new powers are necessary.

Sweeping powers

Last night, Health Minister Simon Harris said he had signed measures into law that would grant new powers to the gardaí to arrest and detain members of the public who flout the advice of public health authorities.

It comes as authorities have told people not to travel to holiday homes or caravan parks this Easter weekend. 

Gardaí had been relying on their existing public order powers since the current strict limitations on movement were ordered by the government 11 days ago.

While the government and health authorities have said the public has largely adhered to the measures in place, such as social distancing, gardaí have now been given these expanded powers to enforce the guidelines.

In the emergency legislation which enables these powers, it says: 

A member of the Garda Síochána who suspects, with reasonable cause, that a person is contravening or has contravened a provision of a regulation made under subsection (1) that is stated to be a penal provision, may, for the purposes of ensuring compliance with the regulation, direct the person to take such steps as the member considers necessary to comply with the provision.

In other words, if people are gathering in groups outdoors, not social distancing or leaving the house when they shouldn’t under the present guidelines, gardaí can direct them to comply with these restrictions.

garda laws

The law states that if a person fails to comply with these directions from gardaí they shall be guilty of an offence.

It also provides gardaí with the powers to arrest such persons, who may be liable for a fine or up to six months imprisonment.

garda powers

When this Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 was debated in the Dáil, TDs argued for the inclusion of a “sunset clause” which means the government can’t decide to extend the provisions within the law indefinitely. 

This sunset clause means that if any of the measures in the legislation was to be extended beyond 9 November, the government would have to pass a vote in the Dáil to do so.

As part of the act signed by Harris today, it clearly specifies that “an applicable person shall not leave his or her place of residence without reasonable excuse”. 

A reasonable excuse fall under the criteria of the restrictions already in place on the general population – to go shopping, to work in an essential service, seek medical attention, exercise within 2km of your home etc.

In the ‘back pocket’

The government had held off signing the regulations, with Taoiseach Leo Varadkar saying he only want to do so if “absolutely necessary”.

On Monday, Varadkar had said he didn’t feel there should be a need to arrest people for failing to comply with Covid-19 restrictions as there has been widespread compliance.

Following meetings involving Varadkar, Harris, Garda Commissioner Drew Harris and Chief Medical Officer Tony Holohan yesterday, a decision was made to introduce such measures.

Harris told RTÉ’s Prime Time last night that it was important gardaí had the powers in their “back pocket”.

“Let me say this though, the Garda Commissioner was very clear in this regard, the level of compliance is very high, the Irish people are being super,” he said.

But it is important the gardaí have these powers in their back pocket so if they do need enforcement powers they have them. I think that’s what most people in this country would expect and want the gardaí to have.

Minister Charlie Flanagan expanded on this today, and said these restrictions and powers for gardaí are unlike anything we’ve seen before.

“They do amount to a response to the emergency situation we are now in,” he told RTÉ Radio. “The vast majority of people have nothing to fear here, the vast majority have been mostly compliant with the advice. What we’re saying here is we want to flatten the curve to save lives. 

“What they are there for is a deterrent primarily,” he added.

‘Precedent’

Security expert and columnist Tom Clonan told TheJournal.ie that there is some precedent for such powers already existing within Irish legislation.

With the Mental Health Act 2001, Clonan said therein are powers for a person to be detained against their will based on a medical assessment. 

“What makes this unusual is that [the restrictions] apply to the whole population because of the unique situation we are in,” Clonan said. 

In terms of civil liberties, and human rights, it is reasonable in this situation in order to prevent spread and flatten the curve. It is justified.

For Clonan, he said the success of the measures currently in place depended on both the general public and An Garda Síochána.

“So far Irish citizens have been very good, responsible and compliant,” he said. “If that continues, there’ll be no requirement for these [garda powers] to be acted upon. It also depends on the attitude of the gardaí themselves and what will their manner be with people at checkpoints for example.

So far, they’ve been brilliant. In other European countries, we’ve seen policing in the crisis done in quite a coercive way. I don’t think we’ll see that here.

For Herrick from the Irish Council for Civil Liberties, he also believes the public has largely been adhering to the measures so far and his organisation wonders why these new powers for gardaí are necessary.

“In this country, we’ve always had a policing by consent approach, a community policing approach,” Herrick said. “[The powers] are in place for a very short period of time – for now it’s four to five days. It’s also linked to a specific set of public health advice.

But the restrictions upon the public have been in place since 27 March. It’s been applied through the consent of the public and our advice would be to strongly urge the gardaí to continue the approach they’ve been taking so far.

The ICCL executive director said some safeguards to these laws would be essential, such as the reporting of any use of these powers, as well as potential oversight from the independent Policing Authority.

Ahead of a press conference from Garda Commissioner Harris today, Herrick said that operational guidelines on how gardaí would enforce these new laws should be made available with a strong emphasis on achieving compliance with the regulations.

How long will it last?

Herrick said that so far there has been strong compliance with the restrictions and if there was to be any extension of the garda powers beyond this week – with these restrictions widely expected to be extended by the government – there’d need to be a strong justification for doing so.

“By the expiry of this period [end of this week], we may have seen no need to enforce these new powers,” he said. “That would be the goal we’d be working towards.

If the government wants to extend these powers for gardaí in the weeks ahead, it would need to show the necessity and proportionality of these restrictions. We’d need to see that argument being made. At this stage, it’s not clear that will be the case.

Meanwhile, security expert Clonan believes the new powers given to gardaí will be extended in the coming weeks.

“I imagine they will,” he said. “The weather will be warmer, and people will be finding it harder in the restrictions. People will want to get out and about.”

Clonan predicted that it could be May at the earliest when some of these restrictions start to be lifted but cited the example of normality returning to Wuhan in China as evidence for there being “light at the end of the tunnel”. 

As for the government, Minister Flanagan heavily hinted that new garda powers may well be extended.

He said: “There won’t be an automatic rollover [of the powers at the end of the week] but careful consideration will be given in accordance with the public health advice.”

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Sean Murray

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