Nessa Denihan dissects the government’s latest approach to mass gatherings.
Confusion and criticism enveloped the Government’s recent announcement that it would be made a civil offence to hold gatherings of over six people from three different households in a private home. It is understood that the Cabinet believed that criminalising such gatherings would be too extreme. Criminal actions are taken by the State against a defendant who will either be convicted or acquitted. Incarceration is the most severe penalty associated with the criminal process. In contrast, civil actions are between private parties. Parties found liable typically face monetary penalties.
The nebulous message communicated by the Tánaiste Leo Varadkar was one source of confusion. Varadkar stated that the civil action would be taken by the Minister for Health against individuals charged with this offence, rather than An Garda Síochána. Varadkar's description of the act of holding such a gathering as a ‘civil offence’ provoked widespread confusion as it is a term seldom seen on the statute books in Ireland. Many leading Irish academics expressed their bewilderment with this term on social media. Dr Eoin O’Dell, Associate Professor of Law at Trinity College Dublin and Professor Fiona de Londras, Professor of Global Legal Studies at the University of Birmingham both tweeted to the effect that they were thus far unaware of the existence of civil offences under Irish law.
O’Dell suggested that Mr Varadkar misspoke and that the offence would be better described as ‘minor’. He surmised that the prohibited action in question would amount to a civil wrong, a “specific statutory example of social host liability in the tort of negligence”. O’Dell wryly noted that Mr Varadkar’s brief stint as a law student before he switched to medicine had not been of service to him on this occasion.
Civil offences would therefore appear to be an unexplored category of offence. It seems that an immediate fine would be the only applicable penalty. This possible misstatement could be seen as indicative of the unique Taoiseach-Tánaiste relationship between Mícheál Martin and Leo Varadkar. Since he has previously held the office of Taoiseach, a position he will return to in December 2022 if the current government remains in power, Varadkar is not quite second fiddle to Martin. Political correspondent with The Irish Times Harry McGee has compared their dynamic to the co-leadership between the First Minister and the Deputy First Minister in Northern Ireland.
McGee claimed that we are witnessing the return of ‘Straight-Talking Leo’, a persona which refers to Varadkar’s tendency to speak his mind - often at the expense of his parliamentary colleagues. This was seen when Varadkar tweeted on August 21 expressing his sympathy with citizens and businesses in Kildare before any official announcement by the Taoiseach regarding the extension of the Kildare lockdown. Varadkar’s desire to be first to get the soundbite may be symptomatic of his forthrightness, or it may reflect that he does not truly feel that he has passed on the mantle of leadership to Martin. Varadkar may consider it important to keep a high profile until he reassumes the office of Taoiseach. It is also no secret that he is far savvier than Martin when it comes to image management and public relations.
There was also significant backlash due to the perception that the Government is opting to crack down on relatively small gatherings in private homes which are subject to constitutional protection instead of addressing the clusters of Covid-19 cases in crowded Direct Provision centres and meat factories with subpar working conditions. This strategy has been interpreted as a response to the alleged spreading of coronavirus at house parties. Some critics viewed this as a governmental attempt to scapegoat young people to deflect from political inertia in the context of more systemic issues such as the disregard for workers’ rights - especially those in precarious employment - and the ineffective framework for seeking asylum in Ireland. Although there is a commitment in the Programme for Government to ending the current system of Direct Provision, it is likely that any reform will be incremental and will therefore not alleviate the current situation. Should a vaccine combattind Covid-19 become available by 2021, it is doubtful that residents in Direct Provision centres would be first in line to receive it. As a result, it seems inevitable that these centres will continue to be hotbeds for the virus.
On 9 September, Dr David Kenny, coordinator of the Trinity College Dublin Covid-19 Law and Human Rights Observatory, testified before the Special Committee on Covid-19 Response that the regulations in question provided no power of entry. Kenny stated that holding a restricted gathering was not subject to a penal provision, but noted that the term ‘civil offence’ is not typically used in Irish law. Kenny concluded that there was a need for greater oversight of this regulation due to the credible but not definite constitutional objection to it. He considered it necessary to tackle the ongoing problem of frequent clusters of cases in Direct Provision centres, suggesting that, inter alia, applications for asylum could be expedited.
Shakespeare once asked what’s in a name, and it may be the case that there was much ado about nothing in relation to the labelling of the aforementioned offence. However, in the wake of the infamous gathering of the Oireachtas Golf Society, the Government is struggling to maintain authority against accusations of incompetence and hypocrisy.
Shakespeare once asked what’s in a name, and it may be the case that there was much ado about nothing in relation to the labelling of the aforementioned offence. However, in the wake of the infamous gathering of the Oireachtas Golf Society, the Government is struggling to maintain authority against accusations of incompetence and hypocrisy. The ‘Golfgate’ scandal provoked outrage, sent the Irish media into a frenzy and resulted in the resignation of the Minister for Agriculture and EU Commissioner Phil Hogan. The spectre of this incident lingers in the form of the former Chief Justice Susan Denham’s non-statutory review of the recent appointee to the Supreme Court Séamus Woulfe’s attendance at the dinner. While any governmental action is assumed to be taken in the interest of public health and based on expert advice, both Fianna Fáil and Fine Gael - who were heavily damaged by this scandal - risk alienating younger voters who proved themselves more likely to support the most powerful party in opposition, Sinn Féin, in February’s general election.