Temporary Restrictions Regulations (No.5) – The Dublin Lockdown

Oran Doyle

Conor White

 

Introduction

The Minister for Health made the Temporary Restrictions (No. 5) Regulations (SI 352/2020) on Saturday 19 September. They were published on the Department of Health website on Sunday 20 September. They came into force on Saturday 19 September, with the exception of more restrictive regulations for funerals and wedding receptions in Dublin, which come into force on Monday 21 September. Formal notification of the Regulations will be given in Iris Oifigiúil on Tuesday 22 September. The Regulations remain in force until Saturday 10 October. The Observatory’s consolidation of the Regulations is available here.

Part 1 of the Regulations deals with common measures. Part 2 of the Regulations deals with restrictions outside Dublin. Part 3 of the Regulations deals with restrictions in Dublin. Part 4 provides a legal basis for the collection of data by business owners and managers in relation to patrons at pubs and restaurants, by the gardaí, and by HSE contract tracers.

 

Measures outside Dublin

Events in private dwellings

Regulation 5 allows you to organise a social or recreational event in your private dwelling, subject to certain limitations. An unlimited number of people from one other household can attend; or no more than six people in total from two or three other households can attend. There are some more detailed rules on how you calculate the number of people. As we pointed out in Thursday’s blog, ‘private dwelling’ is not defined in the Regulations. Given the definition of ‘dwelling’ in the Health Act 1947 itself, the restrictions in Regulation 6 appear only to apply the structure that is the dwelling, not any gardens.

This is not deemed to be a penal provision.

 

Events, sporting events, and training events

Regulation 6 allows events for social, recreational, exercise, cultural, entertainment or community reasons to be organised, subject to a limit of 50 for indoor events of 50, and 100 for outdoor events. But if it is in a stadium, grandstand, or arena that could ordinarily hold 5,000 people or more, the outdoor event can be attended by 200 people. This is deemed to be a penal provision.

The same numbers apply for sporting events, except that ‘necessary persons’ are not included in the numbers. There is a lengthy definition of ‘necessary persons’ that essentially seeks to capture all those directly involved in the sporting event; the numbers limitation applies—in effect—to the spectators.

Regulation 9 allows training events to be organised, provided that those attending are organised into groups of no more than six for indoor events and no more than 15 for outdoor events. Members of one group must not be permitted to ‘commingle, associate with, or otherwise come into physical contact’ with members of any other group. These restrictions do not apply to training events for elite sportspeople.

The restrictions on sporting and training events are not deemed to be penal provisions.

 

Wedding receptions

Regulation 7 allows wedding receptions to be organised in premises other than private dwellings, subject to a limit of 50 people, not including those attending in a professional capacity, in the course of their employment, or in fulfilment of a contract for services. This is not deemed to be a penal provision.

 

Pubs and restaurants

Although the Government has decided to allow ‘wet pubs’ to open outside Dublin from Monday 21 September, this is not yet allowed in the Regulations.

Regulation 10 requires the owners, occupiers, and managers of businesses that sell intoxicating liquor, as well as nightclubs and casinos, not to permit members of the public access to those premises. There is an exception for businesses selling intoxicating liquor, where a substantial meal is ordered alongside the intoxicating liquor.

Regulation 12 requires that the owners, occupiers, and managers must make a record of the time and date of entry and name and telephone number of the lead person of each group that enters, as well as a record of the substantial meal ordered by each person. These records must be retained for a period of 28 days and made available to gardaí. The records, with the exception of the meal records, must also be made available to HSE contact tracers.

Businesses that sell food or non-alcoholic beverages cannot, by reason of Regulation 11, allow people to consume those food or beverages on the premises after 11.30pm. This ensures that people cannot move from a pub to, say, a fast food outlet.

All of these provisions are deemed to be penal provisions.

The lead person in a group or a sole patron must provide the business manager with her name and telephone number, if requested to do so. This is not deemed to be a penal provision.

 

Dublin measures

Travel

Regulation 13 prohibits travel into and out of Dublin in a manner similar to that which applied to Laois, Offaly, and Kildare during their local lockdowns. This does not apply to people who travel through Dublin and do not exit their vehicle or other mode of transport, other than to refuel or for an emergency. It also does not apply to those who travel to Dublin for the purposes of travelling to another state, which would seem to cover Dublin airport, Dublin port, and Connolly station for trains to Northern Ireland.

Travel into or out of Dublin is permitted only where there is a reasonable excuse. Regulation 13(4) provides a lengthy list of reasonable excuses, but these are without prejudice to the generality of ‘reasonable excuse’. In recognition of Dublin’s status as the capital city, there is specific allowance for office-holders under the Constitution or statute, members of either House of the Oireachtas, local authorities, and the European Parliament. No express allowance is made for members of the European Commission. There is also allowance for the provision of services essential to the functioning of diplomatic missions and consular posts in Dublin.

These Regulations go further than the previous localised lockdown Regulations, however, in prohibiting Dubliners from travelling not just to other counties but also to other states. It is now unlawful for Dubliners to leave the State without a reasonable excuse.

The Observatory has previously addressed the vagueness difficulties that arise from the general category of ‘reasonable excuse’.

Regulation 13 is not deemed to be a penal provision.

 

Events in private dwellings

Regulation 14 sets out these restrictions. They differ from the rest of the country in only allowing six persons from one other household to attend an event in a private dwelling. This is not deemed to be a penal provision.

As with the previous Regulations analysed on this blog last Thursday, the Government guidance on social and family gatherings in Dublin combines this legal prohibition with a broader prohibition:

Social and family gatherings

In your home or garden

A maximum of 6 people from 1 other household can visit your home.

Other settings outside your home or garden

No social or family gatherings should take place in other settings.

Read literally, the final sentence here means that even the same family could not leave their house together. On any reading, it purports to prohibit outdoor meetings with members of any other household. There is no legal provision to this effect.

 

Events, sporting events, and training events

Regulation 15 provides that social, recreational, exercise, cultural, entertainment or community events can only be organised outdoors, with a limit of 15 people. This is a penal provision.

Regulation 17 limits sporting events to elite sportspeople only. Regulation 18 provides that training events for non-elite sportspeople can only happen outside with groups of no more than 15 people and no intermingling between groups. No legal limits apply to training events for elite sportspeople. These Regulations are not penal provisions.

 

Weddings, funerals, and religious events

Weddings may be organised, subject to a limit of 25 people attending. This is not deemed to be a penal provision.

Regulation 15(3) imposes a limit of 25 people attending funerals, excluding the priest. This is not deemed to be a penal provision.

The oddity here, however, is that there is no restriction on the organisation of religious events, other than funerals and weddings. The general prohibition on events applies only to ‘social, recreational, exercise, cultural, entertainment or community events’. Section 31A(16) of the Health Act 1947 defines event as ‘a gathering of persons, whether the gathering is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, religious or other reasons…’ It follows, given section 19 of the Interpretation Act 2005, that the ‘relevant events’ restricted by the Regulations cannot include religious events. We first raised this interpretative issue on 8 June 2020. In its submission to the Oireachtas, the Observatory suggested that purported restrictions of religious worship provided a further example of eliding the distinction between law and guidance. But it now seems equally likely that the Government intends and believes that the Regulations do prohibit religious worship, subject to tailored exceptions for weddings and funerals. Such a belief is mistaken.

Pubs, restaurants, and other business/services

Regulation 19(1) requires owners, occupiers, and managers to ensure that members of the public are not permitted access to premises on which certain types of business and services are carried out or provided. A lengthy list is specified in Schedule 2, essentially covering places of entertainment and socialising. Paragraph 16 lists outlets selling food or beverages whether on a retail or wholesale basis and whether in a non-specialised or specialised outlet, subject to some exceptions. The most significant exception here is the selling of food or beverages on a takeaway basis or for consumption off the premises. This is what led to the closing of restaurants and pubs.

Regulation 19(3) allows the on-site consumption of food and beverages in two circumstances: (i) an outdoor area limited to 15 people; and (ii) in a hotel for residents. The same provisions in terms of substantial meal and record-keeping apply in these two contexts as apply generally outside Dublin, set out above.

 

Oran Doyle is the Director of the COVID-19 Law and Human Rights Observatory.

Conor White holds a BCL from University College Dublin and recently completed an LLM at the University of Cambridge.

 

Suggested citation: Oran Doyle and Conor White, ‘Temporary Restrictions Regulations (No.5) – The Dublin Lockdown’ COVID-19 Law and Human Rights Observatory Blog (21 September 2020) https://tcdlaw.blogspot.com/2020/09/temporary-restrictions-regulations-no5.html