Proposals for criminal penalties for people organising house parties, quickly rejected by Cabinet on Friday, raised "concerns" over how Government decisions are Covid-19 penalties are made, the Irish Council for Civil Liberties (ICCL) said on Saturday.
Cabinet discussed a proposal from Minister for Health Stephen Donnelly that would have seen organising or attending a gathering in a private home of more than six guests become a crime.
However, following concerns voiced at Cabinet it was decided to instead make holding a gathering of more than six people a civil offence, which gardaí would have no role in policing.
Current public health guidelines limit gatherings in private homes to no more than six visitors from three other households. The penalties were proposed in a bid to ensure greater compliance with the guidelines and curb the rise in coronaviruis cases.
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The level of sanction or fine for breaches of the limits on household gatherings is currently being drawn up by officials. It is also not clear how it will be determined that a householder is in breach.
Existing penalties for non-compliance with some public health regulations, such as the mandatory wearing of face coverings on public transport and in shops, which carry fines of up to €2,500 or six months imprisonment, were deemed too harsh for offences around house gatherings, sources said.
There was some confusion among the legal profession over the use of the term “civil offence” by the Government, according to barrister Ronan Lupton.
Generally an offence would relate to criminal matters, rather than those dealt with in the civil courts. The burden of proof in criminal cases is beyond reasonable doubt, while in civil cases it is on the balance of probabilities.
“An awful lot of people in the legal world are scratching their heads” over the reference to household gatherings in breach of Covid-19 regulations being handled as a civil offence, he said.
Mr Lupton said due to the differing standards of proof there would “no doubt” be legal challenges taken in the High Court if fines or penalties were issued in the civil courts over household gatherings.
Liam Herrick, executive director of the ICCL, said Constitutional protections around the private dwelling meant gardaí need a warrant to enter a person's home.
“If there was to be any explicit power to enter private property that would need primary legislation,” he said.
“There is no legal basis for the criminalisation of social gatherings in the home, there is no legal power for the police to enforce that at present,” he said.
The civil liberties group had expressed concerns over the earlier proposal to introduce criminal sanctions around large gatherings in households.
The decision-making process around the proposed changes appeared to have been “incredibly muddled and confused,” Mr Herrick said.
The organisation said it was “concerned” issues around the Constitutional implications of entering people’s homes to enforce the initially proposed criminal offence were only raised when the matter was brought to Cabinet for approval.
“It is surprising that these very fundamental questions only seem to have been teased out at the last minute,” he said. “It does raise questions around how the decision-making chain is working at this stage,” he said.
The episode was "indicative of a deeper problem" in how laws and regulations to respond to Covid-19 were being drawn up between the National Public Health Emergency Team (NPHET) and the Government, Mr Herrick said.
Speaking after the Cabinet meeting on Friday, Minister for Justice Helen McEntee said it was decided a “penal provision” around house gatherings of more than six guests “would be an extreme measure, particularly around entering somebody’s home.”
Tánaiste Leo Varadkar said breaches of the public health guidelines limiting social gatherings in homes would be a civil matter, “so the Minister for Health, for example, could take somebody to court but it wouldn’t be a Garda prosecution,” he said after the Cabinet meeting.
There are 392 active outbreaks of the virus in the State at present, 252 of which were related to social gatherings in private households, according to recent figures from the Health Protection Surveillance Centre.
Public health officials have previously warned on several occasions of the potential for the coronavirus to spread in the community from house parties or similar large gatherings in private homes.
