Who decides Law ?

Discodog

There are notable discrepancies between the Covid 19 Act & the pronouncements of the government.

For example the Government have stated that Hardware Stores & Garden Centres must stay closed. But they are both listed as Essential Retail in the Act. Do the powers allow the government to modify the law ?

The same applies to people who work in those industries. Landscaper were specifically told not to work but the Act lists them as an Essential Service ?
Would Garda discretion allow them to stop workers or shoppers associated with these services ?

is_that_so

Essential services are based on a recommended list. They can change the list.

Discodog

is_that_so wrote: »

Essential services are based on a recommended list. They can change the list.

They are based on a legal act. Can you show, in the Act, where they can change the list ?

SCHEDULE 1
Regulation 3
ESSENTIAL RETAIL OUTLETS

1. Outlets selling food or beverages on a takeaway basis, or newspapers, whether on a retail or wholesale basis and whether in a non-specialised or specialised outlet.

2. Outlets selling products necessary for the essential upkeep and functioning of places of residence and businesses, whether on a retail or wholesale basis.

3. Pharmacies, chemists and retailers or wholesalers providing pharmaceuticals or pharmaceutical or dispensing services, whether on a retail or wholesale basis.

4. Outlets selling health, medical or orthopaedic goods in a specialised outlet, whether on a retail or wholesale basis.

5. Fuel service stations and heating fuel providers.

6. Outlets selling essential items for the health and welfare of animals (including animal feed and veterinary medicinal products, pet food, animal bedding and animal supplies), whether on a retail or wholesale basis.

7. Laundries and drycleaners.

8. Banks, post offices and credit unions.

9. Outlets selling safety supplies (including work-wear apparel, footwear and personal protective equipment), whether on a retail or wholesale basis.

10. Hardware outlets, builders’ merchants and outlets that provide, whether on a retail or wholesale basis - (a) hardware products necessary for home and business maintenance, (b) sanitation and farm equipment, or (c) supplies and tools essential for gardening, farming or agriculture purposes.

11. The following outlets insofar as they offer services on an emergency basis only: (a) optician and optometrist outlets; (b) outlets providing hearing test services or selling hearing aids and appliances;
8 [121]

(c) outlets providing for the repair of mechanically propelled vehicles or for the repair of bicycles and any related facilities (including tyre sales and repairs); (d) outlets selling office products and services for businesses or for applicable persons working from their respective places of residence, whether on a retail or wholesale basis; (e) outlets providing electrical, information and communications technology and telephone sales, repair and maintenance services for places of residence and businesses.

Peregrinus

The list you are quoting from is not from an Act, enacted by the Oireachtas; it's from regulations, made by the Minister for Health. The Minister is given the power to make these regulations by an Act - specifically, by the Health Act 1947 section 31A.

So, the Act doesn't list essential retail outlets; it gives the Minister power to make regulations. And the Minister has exercised that power and made regulations, and in those regulations he has included a list of essential retail outlets.

Whatever regulations the Minister can make he can later amend or revoke completely. So, yeah, the Minister does have the power to change the list of essential retail outlets from time to time.

But here's the thing; he can't do that by press release, or in a radio interview, or in a notice in the newspapers, or whatever. He has to do it by issuing more regulations, amending the first set of regulations. And, so far as I know, while he can amend the list of essential retail outlets, he hasn't yet done so. Which means that, as of today, it is still lawful for somone to leave his place of residence for the purpose of going to an essential retail outlet in order to obtain goods or services for himself, for the people who live with him, for a vulnerable person or for the people who live with a vulnerable person. It's also lawful to go to an essential retail outlet in order to work there.

So, if the government has announced that hardware stores and garden centres must stay closed, one of (at least) four things things could be going on:

1. I may be wrong. The Minister may in fact have made regulations amending the list of essential retail outlets to exclude hardware stores and garden centres.

2. The government may be announcing that the Minister is amending the list.

3. The government may be distinguishing between what people are prohibited by from doing and what they are asked not to do. ("Yes, it's lawful to do X, but you should seriously consider not doing it, just the same.")

4. The government is talking about something else entirely. The regulations you quote from deal with restrictions on movement; when it is lawful for you to leave your house. And it's lawful to leave your house to buy stuff from hardware stores. The question of whether it's lawful to operate a hardware store is a different one, governed (I imagine) by different legislation. It could be lawful to go to hardware stores if open, and at the same time unlawful to open them (or lawful to open them on in particular places, or at particular times, or on particular conditions as regards how many people can be in the store, etc, etc).

Discodog

So the Minister made a list that included outlets & services which he either didn't mean to put on the list or later changed his mind ? It's left a lot of businesses in total confusion especially as there are no definitions.

My neighbour went to an open Garden Centre, bought plants, compost etc & was then berated by a Garda for making the journey. A friend, who owns a garden Centre feels that his trade has been badly damaged by the restrictions having been told, by his solicitor, that he could legally open. The same is applying to owners of Hardware outlets.

Your third point seems relevant. I looked through some of the government pronouncements & "should" is used a lot. The media then turn it into "must not".

I have been told by a friend, who works on Horticulture, that his application for the €350 per week was declined because he worked in a listed Essential Service & is allowed to work.

Peregrinus

Discodog wrote: »

So the Minister made a list that included outlets & services which he either didn't mean to put on the list or later changed his mind ? It's left a lot of businesses in total confusion especially as there are no definitions . . .

I take the point that that it causes difficulties, but in a situation that is (a) rapidly developing, and (b) characterised by incomplete information, you absolutely have to have flexibility to modify your actions in light of what you learn, or in light of how your first attempts pan out. This mechanism of the Oireachtas laying down broad rules in the primary legislation and given the Minister power to regulate the detail is an extremely common one, and not just in Ireland, and not just for emergencies. If the Minister changes the first set of regulations that he makes that doesn't mean that he made a mistake the first time, or that he has changed his mind; he could be responding to new developments or new information.

The other point is that prohibitions on leaving your house are just one of a number of mechanisms used. In ordinary circumstances, I can lawfully leave my house at any hour of the day or night for the purpose of buying alcohol, for
example, but I don't, because the sale of alcohol is regulated, so I'm only going to leave my house for this purpose during licensing hours. Thus it's possible to affect my behaviour without actually regulating my behaviour. And the same is true for the pandemic response; if you want to reduce particular kinds of behaviour, directly banning the behaviour is only one way of doing that, and not necessarily the best or most effective way.