The Gardai have received understandable criticism in recent days for enforcing bad, and contradictory, laws about the consumption of alcohol in public places. As such, they have taken the path of least resistance: They’re going to “use their discretion” and simply not enforce the law:
Earlier today, Commissioner Harris issued an instruction to regional Assistant Commissioners that Gardaí should use discretion in relation to licensed premises while also continuing to respond to any public complaints received on matters such as public order, parking, noise etc pic.twitter.com/6bV8KAxuFx
— Garda Info (@gardainfo) June 21, 2021
To be clear, at a very practical level, this is good news, because it means that the country’s infamous “outdoor summer” can proceed without the Gardai running around and pointing out that, inconveniently, some of the things politicians want people to do – like drinking outside a pub, on the streets – are illegal under various laws and by-laws. With this decision, people have a little bit more freedom to socialise, and that is, without reservation, a good thing in the present circumstances.
On the other hand, though, is it not absurd that we now have, effectively, the Gardai changing the law by themselves?
After all, the laws against public drinking which they enforced over the weekend were made, and voted through, by politicians. The Gardai did not invent those laws, because, well, nobody votes for the Gardai. The laws were made by politicians.
Gardai cannot, in general, “use their discretion” about which laws to enforce, and which laws to ignore. If they could do that, then we would no longer live in a democracy. Imagine, for example, if the Government appointed a Garda commissioner who personally believed that the war on drugs was futile, and then that Garda commissioner announced that at his or her direction, the Gardai would no longer enforce laws against the possession of Cocaine. Many people might welcome that, but it is not the Gardai’s decision to make. We, the voters, through the people we elect (and perhaps we should do a better job, there) make the laws. The Gardai are employed by us to enforce them.
What’s more, this appears to be a case of politicians actively avoiding doing their job. Consider, for example, this completely ludicrous statement from the acting Minister for Justice, the other day:
However, I will also examine whether further measures are required from Government. Licencing law is a complex area but I have spoken to the Attorney General this morning and we will take further action if necessary.
— Heather Humphreys (@HHumphreysFG) June 21, 2021
Licencing law is a “complex area”? Sorry now, but no, it is not. And even if it were, then at a national level, a quick and temporary fix is surely possible. Indeed, it has been possible to fix many more complicated issues in the name of restricting people’s freedoms. This is the Government, after all, that has passed several iterations of emergency powers legislation enabling them to dramatically restrict people’s freedoms. For example, it is undeniably complex to pass a law that effectively bans going to mass, so much so that the law which did it is the subject of much legal debate and a constitutional challenge. The Government did it anyway, and in quick time. But now, they cannot move to change the licensing laws to facilitate pubs putting tables outside their premises? Give me a break.
Throughout the pandemic, the Irish state has outsourced decision making to people who are not elected. NPHET, for example, are Government advisors, but when the Taoiseach commits, as he repeatedly has, to always taking their advice, then they become the de-facto Government, since the Government is committed to doing what they say, come hell or high water. Similarly, here, the Government, unwilling to legislate, is simply outsourcing the task of making the law to the Gardai. Given what they are paid, this is an unacceptable dereliction of duty.
But let’s also not let other politicians off the hook: At least in some instances, the laws at fault are by-laws, made by local councils. Those councils, too, are skating away from their responsibility to facilitate the “outdoor summer”. We saw that in action a few weeks ago, when councils were unwilling (not unable, unwilling) to provide appropriate sanitation and toilet facilities. We see it now, when they refuse to amend their by-laws to allow people to socialise safely.
Whether you are pro or anti lockdown, or whatever side of Ireland’s dumb culture war you are on, this should infuriate all of us. This is not only a matter of what we should be able to do, and what should be legal, or illegal. It is mainly just a basic matter of poor Governance. Ireland’s politicians have one job. They keep failing to do it.
We should, really, sack them and employ new politicians in their place.