Health (Amendment) (No. 2) Act 2021
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PART 2 Amendments relating to certain indoor premises | ||
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Insertion of sections 31AB to 31AL to Act of 1947 | ||
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3. The Act of 1947 is amended by the insertion of the following sections after section 31AA: | ||
“Disapplication of certain provisions in respect of certain premises so as to enable those premises to grant access to members of the public under certain conditions | ||
31AB. (1) Without prejudice to the generality of section 31A, and any regulations made from time to time thereunder requiring an indoor operator to ensure that persons (or such class of persons as may be prescribed in such regulations) are not permitted, or otherwise granted, access to a relevant indoor premises, it shall be lawful, subject to subsection (2), for an indoor operator to permit or otherwise grant access to such premises provided that the indoor operator— | ||
(a) complies with the conditions in subsection (3), and | ||
(b) would, but for the aforesaid regulations, be permitted in accordance with law to permit or otherwise grant access to such premises. | ||
(2) It shall not be lawful for an indoor operator to permit, or otherwise grant, access to persons or such class of persons as may be prescribed in regulations referred to in subsection (1) during any period of time prescribed in regulations under section 31A during which access is prohibited. | ||
(3) The conditions referred to in subsection (1) are as follows, namely: | ||
(a) that the indoor operator has taken reasonable steps (including by inspecting such documents, if any, as may be prescribed in regulations under subsection (4)) to ensure that a person other than a permitted person is not admitted to a relevant indoor premises; | ||
(b) that the indoor operator does not knowingly permit a person other than a permitted person to access a relevant indoor premises; | ||
(c) that personal data accessed by an indoor operator for the purposes of paragraph (a) is not retained by that person; | ||
(d) that without prejudice to the requirement to adhere generally to such guidelines as are for the time being in place with respect to an indoor premises, the indoor operator adheres to such guidelines set out by certain bodies (or specific parts of such guidelines) as are prescribed by the Minister under subsection (4)(h); | ||
(e) that the indoor operator complies with such additional conditions as may be prescribed under subsection (4)(f). | ||
(4) Without prejudice to the generality of section 31A(1), the Minister may make regulations giving full effect to this section, and, without prejudice to the generality of the foregoing, such regulations may, in particular, provide for all or any of the following: | ||
(a) the safeguards required to be put in place by the owners, occupiers, managers, licence holders of, or other persons (howsoever described) in charge of relevant indoor premises, including by reference to persons, or classes of persons, being permitted different levels of access to such premises on the basis of different levels of immunity or resistance to, or vaccination or inoculation against, Covid-19; | ||
(b) without prejudice to the generality of sections 31AC to 31AK, particularising or specifying further matters relating to the operation and enforcement, as the case may be, of any matters referred to in subsection (3); | ||
(c) prescribing additional classes of persons as permitted persons for the purposes of the definition of ‘permitted person’ which may, if appropriate, include persons who have received the results of medical tests the purpose of which is to detect the presence of Covid-19, or the virus SARS-CoV-2, in the person to whom the test was administered; | ||
(d) prescribing types or categories of information or proof, or classes of such information or proof, (including electronic documentation, one or more classes of EU Digital Covid Certificates, and vaccines or combinations of vaccines) for the purposes of— | ||
(i) the definition of ‘proof of immunity’, and | ||
(ii) allowing an indoor operator to ascertain whether or not a person is a permitted person; | ||
(e) prescribing an indoor premises, or a class of such premises— | ||
(i) as a relevant indoor premises for the purposes of paragraph (c) of the definition of ‘relevant indoor premises’, or | ||
(ii) as a premises to which the definition of ‘relevant indoor premises’ does not apply; | ||
(f) prescribing additional conditions for the purposes of subsection (3)(e), including different conditions in respect of one or more classes of premises; | ||
(g) without prejudice to the generality of sections 31AD to 31AK, prescribing— | ||
(i) additional bodies for the purpose of paragraph (c) of the definition of ‘relevant body’, and the manner in which relevant bodies or compliance officers designated by a relevant body may carry out inspections of relevant indoor premises, | ||
(ii) the manner in which relevant bodies or compliance officers may inspect and verify proof of immunity or proof that a person is a permitted person, for the purposes of investigating or monitoring compliance with the conditions referred to in subsection (3), and | ||
(iii) that a breach of any regulation relating to— | ||
(I) the inspection of relevant indoor premises, | ||
(II) the verification of proofs for any purpose under this section or sections 31AC to 31AK, or | ||
(III) the enforcement of obligations in this section or sections 31AC to 31AK, | ||
may be stated to be an offence in the regulation concerned and a person guilty of such an offence shall be liable on summary conviction to a class C fine; | ||
(h) prescribing guidelines set out by certain bodies (or specific parts of such guidelines) to which indoor operators are required to adhere for the purposes of the condition referred to in subsection (3)(d); | ||
(i) prescribing a class or classes of persons, as persons to whom, despite being in or at a relevant indoor premises in a professional capacity, in the course of their employment, or in fulfilment of a contract for services, paragraph (c) of the definition of ‘permitted person’ does not apply; | ||
(j) prescribing an age under the age of 18 years for the purposes of ‘relevant minor’ within the meaning of paragraph (b) of the definition of ‘permitted person’; | ||
(k) prescribing a person other than a parent or guardian or person acting in loco parentis, in relation to a relevant minor, who may accompany such minor to a relevant indoor premises for the purposes of paragraph (b) of the definition of ‘permitted person’; | ||
(l) such additional, incidental, consequential or supplemental matters as the Minister considers necessary or expedient for the purposes of giving full effect to regulations under this section. | ||
(5) When making regulations under subsection (4), the Minister— | ||
(a) shall have regard to the matters referred to in paragraph (a) of section 31A(2), | ||
(b) may have regard to the matters referred to in paragraph (b) of section 31A(2), and | ||
(c) may consult— | ||
(i) any other Minister of the Government as he or she considers appropriate having regard to the functions of that other Minister of the Government, | ||
(ii) a relevant body, and | ||
(iii) a body referred to in paragraph (h) of subsection (4). | ||
Matters relating to documents provided for purposes of section 31AB | ||
31AC. (1) An indoor operator may, for the purposes of complying with conditions referred to in section 31AB(3), request that a person seeking entry to a relevant indoor premises make available for inspection to him or her evidence that the person is a permitted person. | ||
(2) A person shall be guilty of an offence where he or she provides a document in response to the request of an indoor operator under subsection (1) that, to the person’s knowledge— | ||
(a) has been forged or fraudulently altered, or | ||
(b) relates to a person other than the person providing the document. | ||
(3) A person who is guilty of an offence under subsection (2) shall be liable on summary conviction to a class C fine. | ||
Compliance officers | ||
31AD. (1) A relevant body may, in writing, designate one or more persons who may carry out the functions of a compliance officer under this section and under sections 31AE to 31AK. | ||
(2) A compliance officer shall, when carrying out his or her functions under this section and under sections 31AE to 31AK, retain in his or her possession the written designation referred to in subsection (1) and may produce such designation on request and for inspection by such person as he or she sees fit. | ||
(3) The Minister may prescribe additional powers and functions that a compliance officer may exercise and carry out, respectively, for the purpose of giving effect to this section and sections 31AE to 31AK. | ||
Entry, inspection, etc., of relevant indoor premises | ||
31AE. (1) A compliance officer may enter a relevant indoor premises without warrant at any time and there make such inspection, examination, observation and enquiry as he or she thinks proper in order to assess whether an indoor operator has complied with the conditions referred to in section 31AB(3). | ||
(2) Where, having made an inspection, examination, observation and enquiry under subsection (1), a compliance officer forms the view that an indoor operator has, without complying with the conditions referred to in section 31AB(3), permitted, or otherwise granted, persons access to a relevant indoor premises in contravention of regulations made under section 31A, the compliance officer shall— | ||
(a) inform the indoor operator of the fact that he or she has formed such a view, | ||
(b) direct the indoor operator to take such steps as the compliance officer considers appropriate in order to comply with such conditions, and | ||
(c) inform the indoor operator that failure to comply with such a direction may result in the compliance officer informing a member of the Garda Síochána of that fact or bringing an application to the District Court in accordance with sections 31AF or 31AH or issuing a compliance notice in accordance with section 31AG. | ||
(3) Where an indoor operator fails to comply with a direction under subsection (2), the compliance officer who issued the direction may, as he or she sees fit— | ||
(a) inform a member of the Garda Síochána of that fact, | ||
(b) bring an application to the District Court under sections 31AF or 31AH, or | ||
(c) issue a compliance notice under section 31AG. | ||
(4) A person who— | ||
(a) prevents or attempts to prevent a compliance officer from exercising the power conferred by subsection (1), or | ||
(b) obstructs or attempts to obstruct any such officer in the exercise of that power, | ||
is guilty of an offence and is liable on summary conviction to a class C fine. | ||
Application for emergency cessation order | ||
31AF. (1) A compliance officer may apply ex parte to the District Court, at the next available sitting of that court, for an order (in this Act referred to as a ‘emergency cessation order’) for the temporary restriction of access by members of the public to a relevant indoor premises, for a period not exceeding 72 hours, where— | ||
(a) one, or more than one, indoor operator fails or refuses to comply with a direction under section 31AE(2), and | ||
(b) in light of such failure or refusal, the compliance officer is of the opinion that such failure or refusal is continuing or is likely to recur. | ||
(2) An application under subsection (1) shall be made on the sworn information of the compliance officer concerned and shall state the basis on which the application is made. | ||
(3) The District Court may, in any case where it considers it appropriate to do so, adjourn the hearing of an application made under subsection (1) and direct that the indoor operator be notified of the date of the adjourned hearing and served with a copy of the sworn information referred to in subsection (2). | ||
(4) The District Court may make an emergency cessation order directing an indoor operator, notwithstanding section 31AB, not to permit, or otherwise grant, persons access to a relevant indoor premises where the court is satisfied that, in relation to a particular relevant indoor premises— | ||
(a) there has been a failure or refusal by an indoor operator to comply with a direction given under section 31AE(2), | ||
(b) such failure or refusal is continuing or is likely to recur, and | ||
(c) the making of the order is appropriate in the circumstances. | ||
(5) An emergency cessation order— | ||
(a) shall specify the ground or grounds for making the order, and | ||
(b) shall specify the date on which, and the time on that date from which, the order is to take effect. | ||
(6) Where an application is heard ex parte, a compliance officer shall notify the indoor operator concerned forthwith of the making of an emergency cessation order and shall, at the same time, provide a copy of the sworn information referred to in subsection (2) to the indoor operator. | ||
(7) Subject to subsection (8), where an emergency cessation order has been made ex parte, the indoor operator may apply to the District Court to have the order discharged. | ||
(8) An application under subsection (7) may only be made where the indoor operator has notified in writing the relevant body by which the compliance officer was appointed of the making of the application not less than 6 hours prior to the sitting of the District Court at which the application is to be made. | ||
(9) The District Court shall, on application to it under subsection (7), discharge the order where the indoor operator proves to the satisfaction of the court that any directions given by a compliance officer to a person in respect of the relevant indoor premises have been and continue to be complied with. | ||
(10) The District Court may, on application to it under subsection (7), discharge an emergency cessation order where— | ||
(a) the indoor operator gives an undertaking to the court that the conditions in section 31AB(3) will be complied with in respect of the relevant indoor premises, and | ||
(b) the court is satisfied that the discharge of the order is appropriate in the circumstances. | ||
(11) This section applies whether or not a compliance notice has been issued in respect of the relevant premises concerned. | ||
Compliance notice | ||
31AG. (1) A compliance officer may, where an indoor operator fails or refuses to comply with a direction given in respect of a relevant premises under section 31AE(2), but no emergency cessation order was made in respect of such failure or refusal, issue a notice (in this Act referred to as a ‘compliance notice’) in writing to the indoor operator setting out the matters specified in subsection (3). | ||
(2) A compliance notice shall be issued within 5 days from the giving of the direction concerned. | ||
(3) A compliance notice shall— | ||
(a) identify the conditions under section 31AB(3) that have not been or are not being complied with in respect of the relevant indoor premises, | ||
(b) state the grounds upon which any direction, given to an indoor operator in respect of the premises prior to the issuing of the notice, was made, | ||
(c) require the indoor operator to comply with any such direction forthwith and to comply with the conditions referred to in section 31AB(3), and | ||
(d) inform the indoor operator that the compliance officer may apply to the District Court for a cessation order under section 31AH. | ||
(4) A compliance notice shall take effect immediately upon service on the indoor operator. | ||
(5) An indoor operator may appeal a compliance notice under section 31AJ but the lodging of an appeal shall not, pending the outcome of the appeal, affect the operation of the notice. | ||
Application for cessation order | ||
31AH. (1) A compliance officer may apply to the District Court for an order (in this Act referred to as a ‘cessation order’) for the restriction of access by members of the public to a relevant indoor premises where he or she is of the opinion that— | ||
(a) there has been a failure to comply with a compliance notice, and | ||
(b) such failure to comply is continuing or is likely to recur. | ||
(2) An application under subsection (1) shall be made on not less than 5 days’ notice to the indoor operator. | ||
(3) Notwithstanding anything contained in the rules of court, not less than 7 days’ notice of an application under subsection (1) shall be given to the District Court. | ||
(4) The District Court shall give such priority to an application under subsection (1) as is necessary in the circumstances and may give such directions with regard to the hearing of the application as it considers appropriate in the circumstances. | ||
(5) Upon the hearing of an application under subsection (1), the District Court may make a cessation order where the court is satisfied that— | ||
(a) there has been a failure by an indoor operator to comply with a compliance notice in respect of a relevant premises, | ||
(b) that failure is continuing or is likely to recur in respect of the relevant indoor premises concerned, and | ||
(c) the making of the order is appropriate in the circumstances. | ||
(6) In determining whether to make a cessation order under this section, the District Court may take into account the conduct of an indoor operator regarding the operation of the relevant indoor premises in response to any direction, emergency cessation order or compliance notice in respect of the relevant indoor premises. | ||
(7) Subject to subsection (8), a cessation order shall have the effect of requiring a relevant indoor operator, notwithstanding section 31AB, not to permit, or otherwise grant, persons access to a relevant indoor premises for such period— | ||
(a) not exceeding 7 days in the case of the first such order made in respect of that premises, and | ||
(b) not exceeding 30 days in the case of the second or subsequent such order made in respect of that premises. | ||
(8) The District Court may, if it considers it appropriate to do so, having regard to any mitigating circumstances and any undertaking given to the court in relation to future compliance with the conditions in section 31AB(3), suspend, for such period as it considers appropriate, the operation of the order. | ||
(9) During any period that the operation of a cessation order stands suspended in accordance with subsection (8), a compliance officer may, on notice to the indoor operator, make an application to the District Court to revoke the suspension where he or she is of the opinion that— | ||
(a) an undertaking, given in accordance with that subsection, is not being complied with, or | ||
(b) there has been a change in the mitigating circumstances referred to in that subsection and some or all of those circumstances no longer apply. | ||
(10) The District Court shall, where it is satisfied that either of the matters set out in paragraph (a) or (b) of subsection (9) apply, revoke the suspension unless the court considers it would be unjust in all the circumstances to do so. | ||
(11) A compliance officer shall notify the indoor operator concerned of the making of a cessation order but, if the indoor operator or a legal representative (being a practising barrister, practising solicitor, or both (within the meaning of the Legal Services Regulation Act 2015 )) of the indoor operator is present at the sitting of the District Court at which that order is made, the indoor operator shall be taken to have been notified of its making for the purposes of this subsection. | ||
Applicable provisions in relation to certain orders | ||
31AI. (1) While access to a relevant indoor premises or any part thereof is restricted in accordance with a cessation order or an emergency cessation order, the indoor operator concerned shall affix to the exterior of the premises, in a conspicuous place, a notice specifying the period of such restriction, whether the order applies to the whole or a part of the premises and stating that the restriction is in compliance with the order concerned. | ||
(2) A person who fails to affix a notice in accordance with subsection (1) is guilty of an offence and is liable on summary conviction to a class C fine. | ||
(3) A person who permits a relevant indoor premises to be open for business in contravention of a cessation order or an emergency cessation order is guilty of an offence and is liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months, or both. | ||
Appeal against compliance notice | ||
31AJ. (1) A person aggrieved by a compliance notice may appeal against the notice to the District Court. | ||
(2) An appeal under subsection (1) shall be made not later than 7 days from the date on which the compliance notice was served. | ||
(3) The District Court shall give such priority to an appeal under subsection (1) as is necessary in the circumstances and may give such directions with regard to the hearing of the application as it considers appropriate in the circumstances. | ||
(4) On the hearing of an appeal under subsection (1), the District Court may confirm, vary or revoke the compliance notice. | ||
(5) A decision of the District Court under this section may be appealed to the Circuit Court and the Circuit Court may, on the hearing of the appeal, confirm, vary or revoke the compliance order. | ||
Appeal against order | ||
31AK. (1) An appeal to the Circuit Court against a cessation order shall not have the effect of suspending the operation of the order unless the Circuit Court, on application made to it by the appellant, suspends the operation of the order pending the determination of the appeal. | ||
(2) The Circuit Court shall give such priority to an appeal referred to in subsection (1) or an application under that subsection as is necessary in the circumstances and may give such directions with regard to the hearing of the appeal or the application as it considers appropriate in the circumstances. | ||
(3) On the hearing of the appeal, the Circuit Court may— | ||
(a) affirm, revoke or vary the cessation order concerned, and | ||
(b) make such other order (if any) in relation to the relevant indoor premises as it considers appropriate. | ||
Data Protection | ||
31AL. (1) Personal data contained in a proof of immunity shall be processed only for the purpose of accessing and verifying the information included in such proof of immunity in connection with the admittance of permitted persons to relevant indoor premises. | ||
(2) For the purpose of section 31AB, an indoor operator may process personal data contained in a proof of immunity only for the purpose of accessing and verifying the information contained in the proof of immunity for the purposes of complying with that section. | ||
(3) Personal data processed by an indoor operator for the purposes of this section shall not be retained by an indoor operator for any longer than is strictly required for the purposes of complying with a condition referred to in section 31AB(3). | ||
(4) In this section— | ||
‘General Data Protection Regulation’ has the meaning it has in section 38K; | ||
‘personal data’ has the meaning it has in section 38K; | ||
‘processing’ has the meaning it has in section 38K.”. |