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Gardaí patrolling in Dublin. Sam Boal/Rollingnews.ie

Explainer: What powers do these 'last resort' measures give to gardaí? And will these powers be extended?

The Irish Council for Civil Liberties has argued that these laws aren’t needed given the public’s compliance with the Covid-19 restriction measures.

THE EXPANDED POWERS that have now been given to gardaí could see people fined €2,500 or face up to six months in jail if they fail to adhere to public health guidelines during the Covid-19 outbreak.

This morning, Justice Minister Charlie Flanagan described the measures – which last until the weekend – as a “last resort” but said that most people have so far complied with the guidelines they’ve been given on social distancing and remaining at home.

If there are a “small number” of people who wish to deliberately flout these guidelines, the gardaí’s new powers will be used as a “last recourse”, Flanagan told RTÉ Radio One’s Today with Sean O’Rourke. 

Concerns have been raised about these measures – which are set to remain in place for four days – with the Irish Council for Civil Liberties’ executive director Liam Herrick telling the TheJournal.ie that these new laws give gardaí “powers over areas of our lives that have never been regulated by police here before”. 

Herrick said that guidelines have been in place for 12 days at this point, and that if the public health guidelines are being adhered to as indicated the question must be asked why these new powers are necessary.

Sweeping powers

Last night, Health Minister Simon Harris said he had signed measures into law that would grant new powers to the gardaí to arrest and detain members of the public who flout the advice of public health authorities.

It comes as authorities have told people not to travel to holiday homes or caravan parks this Easter weekend. 

Gardaí had been relying on their existing public order powers since the current strict limitations on movement were ordered by the government 11 days ago.

While the government and health authorities have said the public has largely adhered to the measures in place, such as social distancing, gardaí have now been given these expanded powers to enforce the guidelines.

In the emergency legislation which enables these powers, it says: 

A member of the Garda Síochána who suspects, with reasonable cause, that a person is contravening or has contravened a provision of a regulation made under subsection (1) that is stated to be a penal provision, may, for the purposes of ensuring compliance with the regulation, direct the person to take such steps as the member considers necessary to comply with the provision.

In other words, if people are gathering in groups outdoors, not social distancing or leaving the house when they shouldn’t under the present guidelines, gardaí can direct them to comply with these restrictions.

garda laws

The law states that if a person fails to comply with these directions from gardaí they shall be guilty of an offence.

It also provides gardaí with the powers to arrest such persons, who may be liable for a fine or up to six months imprisonment.

garda powers

When this Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 was debated in the Dáil, TDs argued for the inclusion of a “sunset clause” which means the government can’t decide to extend the provisions within the law indefinitely. 

This sunset clause means that if any of the measures in the legislation was to be extended beyond 9 November, the government would have to pass a vote in the Dáil to do so.

As part of the act signed by Harris today, it clearly specifies that “an applicable person shall not leave his or her place of residence without reasonable excuse”. 

A reasonable excuse fall under the criteria of the restrictions already in place on the general population – to go shopping, to work in an essential service, seek medical attention, exercise within 2km of your home etc.

In the ‘back pocket’

The government had held off signing the regulations, with Taoiseach Leo Varadkar saying he only want to do so if “absolutely necessary”.

On Monday, Varadkar had said he didn’t feel there should be a need to arrest people for failing to comply with Covid-19 restrictions as there has been widespread compliance.

Following meetings involving Varadkar, Harris, Garda Commissioner Drew Harris and Chief Medical Officer Tony Holohan yesterday, a decision was made to introduce such measures.

Harris told RTÉ’s Prime Time last night that it was important gardaí had the powers in their “back pocket”.

“Let me say this though, the Garda Commissioner was very clear in this regard, the level of compliance is very high, the Irish people are being super,” he said.

But it is important the gardaí have these powers in their back pocket so if they do need enforcement powers they have them. I think that’s what most people in this country would expect and want the gardaí to have.

Minister Charlie Flanagan expanded on this today, and said these restrictions and powers for gardaí are unlike anything we’ve seen before.

“They do amount to a response to the emergency situation we are now in,” he told RTÉ Radio. “The vast majority of people have nothing to fear here, the vast majority have been mostly compliant with the advice. What we’re saying here is we want to flatten the curve to save lives. 

“What they are there for is a deterrent primarily,” he added.

‘Precedent’

Security expert and columnist Tom Clonan told TheJournal.ie that there is some precedent for such powers already existing within Irish legislation.

With the Mental Health Act 2001, Clonan said therein are powers for a person to be detained against their will based on a medical assessment. 

“What makes this unusual is that [the restrictions] apply to the whole population because of the unique situation we are in,” Clonan said. 

In terms of civil liberties, and human rights, it is reasonable in this situation in order to prevent spread and flatten the curve. It is justified.

For Clonan, he said the success of the measures currently in place depended on both the general public and An Garda Síochána.

“So far Irish citizens have been very good, responsible and compliant,” he said. “If that continues, there’ll be no requirement for these [garda powers] to be acted upon. It also depends on the attitude of the gardaí themselves and what will their manner be with people at checkpoints for example.

So far, they’ve been brilliant. In other European countries, we’ve seen policing in the crisis done in quite a coercive way. I don’t think we’ll see that here.

For Herrick from the Irish Council for Civil Liberties, he also believes the public has largely been adhering to the measures so far and his organisation wonders why these new powers for gardaí are necessary.

“In this country, we’ve always had a policing by consent approach, a community policing approach,” Herrick said. “[The powers] are in place for a very short period of time – for now it’s four to five days. It’s also linked to a specific set of public health advice.

But the restrictions upon the public have been in place since 27 March. It’s been applied through the consent of the public and our advice would be to strongly urge the gardaí to continue the approach they’ve been taking so far.

The ICCL executive director said some safeguards to these laws would be essential, such as the reporting of any use of these powers, as well as potential oversight from the independent Policing Authority.

Ahead of a press conference from Garda Commissioner Harris today, Herrick said that operational guidelines on how gardaí would enforce these new laws should be made available with a strong emphasis on achieving compliance with the regulations.

How long will it last?

Herrick said that so far there has been strong compliance with the restrictions and if there was to be any extension of the garda powers beyond this week – with these restrictions widely expected to be extended by the government – there’d need to be a strong justification for doing so.

“By the expiry of this period [end of this week], we may have seen no need to enforce these new powers,” he said. “That would be the goal we’d be working towards.

If the government wants to extend these powers for gardaí in the weeks ahead, it would need to show the necessity and proportionality of these restrictions. We’d need to see that argument being made. At this stage, it’s not clear that will be the case.

Meanwhile, security expert Clonan believes the new powers given to gardaí will be extended in the coming weeks.

“I imagine they will,” he said. “The weather will be warmer, and people will be finding it harder in the restrictions. People will want to get out and about.”

Clonan predicted that it could be May at the earliest when some of these restrictions start to be lifted but cited the example of normality returning to Wuhan in China as evidence for there being “light at the end of the tunnel”. 

As for the government, Minister Flanagan heavily hinted that new garda powers may well be extended.

He said: “There won’t be an automatic rollover [of the powers at the end of the week] but careful consideration will be given in accordance with the public health advice.”

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61 Comments
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    Mute Johnny 5
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    Apr 8th 2020, 12:23 PM

    If you’re against these temporary measures then you obviously have no problem with the small percentage of eejits that think this doesn’t apply to them and won’t be complaining when our ICUs can’t cope with the influx of seriously ill people.

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    Mute
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    Apr 8th 2020, 12:37 PM

    @Johnny 5:

    Not against the law, but I’m glad to have people like the ICCL keeping the government in check. Debate and questioning is always necessary with big issues like this. I reckon they’re largely just playing devils advocate on this.

    Important to question the government and watch this carefully to make sure it’s only temporary and not extended indefinitely when it runs out.

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    Mute SFAnkleTapper
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    Apr 8th 2020, 12:47 PM

    They are placing civil liberties before protecting life.. complete BS ..

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    Mute Mark Kelly
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    Apr 8th 2020, 12:50 PM

    @Johnny 5: If only I could be naive enough to believe these are temporary. The current strategy is going to lead to lockdown/opening/lockdown/opening cycle. HSE has already talked about surge 1, surge 2, surge 3. Prof Luke O’Neill has talked about multiple lockdowns. One case in a population with no immunity will, every time, lead to exponential growth.

    It’s a bit harder to accept these draconian measures and the destruction of the economy when you read the science and realise they are not temporary.

    There are scientists calling for much more honesty on current models and measures: https://medium.com/@wpegden/a-call-to-honesty-in-pandemic-modeling-5c156686a64b

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    Mute Ray Ridge
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    Apr 8th 2020, 12:53 PM

    @Johnny 5: it may well have to be extended……but only until the end of the viral epidemic here. The only mistake made was that it wasn’t introduced 2/3 weeks ago…….and for all those civil liberty folk you can all take deep breath we are not going to wake up in China in the morning. It will all be ok. Your weekends away will not be curtailed indefinitely.

    26
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    Mute
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    Apr 8th 2020, 12:57 PM

    @SFAnkleTapper:

    They’re arguing for the other side when nobody else is willing to. That’s the basis of our legal system, and it’s an important part of a healthy democracy too.

    It’s not like they’re telling people to go out and ignore restrictions, or keeping a business open, they’re just writing some letters and bringing up decent arguments against the law. We’re free citizens to say “no, this law is good” and tell our TDs to support it.

    I am personally in agreement with the law, but I’m hoping that citizens watch this carefully and make sure our government doesn’t take any permanent powers that can’t be rolled back easily.

    33
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    Mute KEN L
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    Apr 8th 2020, 1:04 PM

    @Johnny 5:

    Where were all these special measures when thousands of people urinate defecate outside peoples doors and in peoples gardens after the All Ireland Football Final ?

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    Mute Ray Ridge
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    Apr 8th 2020, 1:05 PM

    @: arguing the other side??……decent arguments against the Law?…..Such as what…..

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    Mute Martin Gordon
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    Apr 8th 2020, 1:13 PM

    @KEN L: that killing ppl yeah??

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    Mute Will
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    Apr 8th 2020, 1:31 PM

    @KEN L: That’s tradition Ken.

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    Mute KEN L
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    Apr 8th 2020, 1:46 PM

    @Will:

    tradition to leave urine and excrement outside peoples doors ?

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    Mute Johnny 5
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    Apr 8th 2020, 2:17 PM

    @KEN L: Think that might be a slight exaggeration there Ken. One a two have a leak, sure, but I’ve attended 10 all Ireland football finals and have never seen anyone taking a dump in someone’s garden.

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    Mute Nikolina Fiume
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    Apr 8th 2020, 5:33 PM

    @Mark Kelly: when I said the other day that the gov is not clear on anything and that we don’t know what and when to expect, I was told that we know everything and that I was grumpy. Rules are here, timelines are not. They will extend it every 2 weeks, although they must have some idea of progression of virus and economy. But every 2 weeks sounds better to people, just 2 more weeks and then we will see. 2 more weeks ppl, we can make it! :D

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    Mute Mike Ryan
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    Apr 8th 2020, 12:29 PM

    Liam Herrick telling the TheJournal.ie that these new laws give gardaí “powers over areas of our lives that have never been regulated by police here before”.

    We have also never dealt with a pandemic like this in our lifetime before. If you are abiding by the common sense recommendations regarding social distancing and limited movement, this will have no effect on you whatsoever.

    This is in place because of the small percentage of people that have no common sense or decency that could worsen our situation.

    As a country, we are playing a blinder. We are on track to get through this in a much better fashion than anybody expected. if these measures help with that, then I’m all for them.

    119
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    Mute Ricky
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    Apr 8th 2020, 12:33 PM

    @Mike Ryan: I would also have no problem with the French way of naming and shaming the people stopped by Gardai for non essential travel from today.

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    Mute Mike Ryan
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    Apr 8th 2020, 12:36 PM

    @Ricky: Absolutely agree.

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    Mute Kate Flaherty
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    Apr 8th 2020, 12:38 PM

    @Ricky: they should be done for endangerment, because that’s exactly what they’re doing, ok if they have no regard for their own lives or the lives of their loved ones but they are endangering the lives of others perhaps more vulnerable people….

    28
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    Mute KEN L
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    Apr 8th 2020, 1:08 PM

    @Mike Ryan:

    Last night there was a super moon so simon harris gave the guards “super” powers

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    Mute paul gurney
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    Apr 8th 2020, 5:44 PM

    @Mike Ryan: While I agree generally with your sentiment Mike in think the possible sanction of a 6 month jail sentence is totally ridiculous at a time when we’ve had to release 250 prisoners back into society…Like really…What master brain thought that to be a deterrent ..quite obviously when Tony Holohan isn’t calling the shots the level of aptitude drops drastically.

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    Mute Longlin
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    Apr 8th 2020, 12:28 PM

    Of course these do gooders are out again with their concerns. The vast majority of people are complying but it’s the usual underclass element of society that will not in any way contribute to doing their bit for the country at this time. Need sanctions for these folk and actually follow through with them.

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    Mute David Dineen
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    Apr 8th 2020, 12:36 PM

    @Longlin: underclass idiots going to their second homes while the plebs die trying to keep them alive

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    Mute
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    Apr 8th 2020, 12:38 PM

    @Longlin:

    “these do gooders are out again with their concerns”

    Yeah… that’s part of living in a free and open society. Healthy democracy means we question our leaders. If we let things like this pass with zero debate it sets a bad precedent. We don’t want to end up like China where criticising the government automatically makes you the bad guy.

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    Mute Longlin
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    Apr 8th 2020, 12:48 PM

    @David Dineen: I don’t discriminate about anyone who thinks they’re above the law and what’s good for society. The ones I’ve seen congregating in groups in parks and not moving out of the way of people, are in the main the bottom feeders in our society but I’d have equal disdain for someone hopping in their Range Rover and heading off to their second home.

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    Mute KEN L
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    Apr 8th 2020, 1:06 PM

    @Jason Ebbs:

    Last night she called Simon Harris a satanist

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    Mute David Glynn
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    Apr 8th 2020, 12:32 PM

    The Council have got this totally wrong and damaged their credibility. And failing to gauge the mood of the nation in this crisis.
    Rules cant be strong enough for me as people are dying daily.
    Full support for Gardai and eternal gratitude for protecting us in the frontline.

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    Mute
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    Apr 8th 2020, 12:41 PM

    @David Glynn:

    They’re arguing for the case of civil liberties, and that’s their purpose in society. If they don’t play devils advocate from time to time, then who will?

    Our legal system is based on the idea that everyone has somebody to defend their case. Lawyers defend their clients even when they know they’re guilty as sin and deserve far worse. Similarly, groups like ICCL argue the case for civil liberty even when it’s unpopular.

    Debate and questioning is a feature of a healthy democracy, I agree with these laws, but I wouldn’t want a big measure like this to be taken with no debate, criticism, or concerns voiced.

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    Mute David Glynn
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    Apr 8th 2020, 12:48 PM

    Thanks for the lecture. I am fully cognisant as to their role.
    They could have said that they understood the need but would be vigilant to ensure that rights would be protected in the aftermath of the pandemic.
    They didn’t. They got it wrong.
    I stand by my comment 100 percent.

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    Mute
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    Apr 8th 2020, 12:59 PM

    @David Glynn:

    I don’t think you understand the concept of “devils advocate”, otherwise you wouldn’t be bashing them for taking the role.

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    Mute devils avacado
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    Apr 8th 2020, 1:46 PM

    @: I will be keeping a watchful eye pal…. ;)

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    Mute David Glynn
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    Apr 8th 2020, 2:53 PM

    Who are they to decide what’s needed. We dont need a devil’s advocate on decisions driven by medical and scientific expertise.They are out of their depth here.
    But we’ll agree to disagree.

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    Mute Ray Ridge
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    Apr 8th 2020, 3:05 PM

    @David Glynn: Absolutely…. Its about stopping the spread or the virus and saving lives…… I’m sure the civil liberty groups can give it a rest for one day….. There are more important issues than playing “Devils Avocate” with the Nations health and safety.

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    Mute Ricky
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    Apr 8th 2020, 12:26 PM

    Personally, I don’t give a toss about these being ‘extreme measures’…. Extend them. I’m going nowhere so it doesn’t affect me. Neither should any of you if you aren’t an essential worker. The people going out on little breaks this weekend, why? Where is there to go, what is there to do? The same kind of people that will get symptoms and not self-isolate either. Covid-19 isn’t the only plague on society.

    91
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    Mute KEN L
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    Apr 8th 2020, 1:11 PM

    @Ricky:

    will someone please tell me exactly where they could be going ?

    the pubs are closed
    the cinemas are closed
    the chippers are closed
    Easons are closed

    26
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    Mute Joey Navinski
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    Apr 8th 2020, 1:21 PM

    @KEN L: nature is open

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    Mute Ricky
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    Apr 8th 2020, 1:23 PM

    @KEN L: It’s a BIG F-you to us,the law and law abiding society. Nobody will tell them what to do, where to go and Covid-19 won’t affect them anyway. Happy days.

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    Mute KEN L
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    Apr 8th 2020, 1:48 PM

    @Ricky:

    - buy groceries
    - go to work
    - got to hospital

    1
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    Mute Johnny 5
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    Apr 8th 2020, 12:35 PM

    Is it possible that joggers could actually leave the footpaths to people walking and observing social distancing? Coughing and sweating isn’t a good look these days.

    66
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    Mute Donnacha Bhoicaire
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    Apr 8th 2020, 12:24 PM

    Living on the Southside of Dublin can only comment on what I’m seeing but I think for the most part people have abided by restrictions

    36
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    Mute SFAnkleTapper
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    Apr 8th 2020, 12:26 PM

    @Donnacha Bhoicaire: there’s the issue ‘for the most part’…these laws are for the rest … If your indoors and or obeying the rules then no Garda will be bothering you.

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    Mute Johnny 5
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    Apr 8th 2020, 12:32 PM

    @Donnacha Bhoicaire: Living on the northside of Dublin, people are also abiding by the restrictions. Few eejits everywhere I’m afraid.

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    Mute Sharp Elsi Mate
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    Apr 8th 2020, 1:00 PM

    @Donnacha Bhoicaire: yeah that’s why South Dub CoCo reported people taking ‘Closed’ signs off a playground yesterday and letting their kids play.

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    Mute Rachel Glover
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    Apr 8th 2020, 7:40 PM

    @Donnacha Bhoicaire: Everyone except joggers.

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    Mute MollyMsalone
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    Apr 8th 2020, 12:31 PM

    How can a health minister sign a measure into law giving powers to Gardai? Surely that’s the job of justice minister.

    27
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    Mute SFAnkleTapper
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    Apr 8th 2020, 12:33 PM

    @MollyMsalone: because the law says he can ..a law passed by the Oireachtas.

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    Mute Deirdre O'Byrne
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    Apr 8th 2020, 12:40 PM

    If the public is so good at complying with the instructions, then these powers will never be used, and so surely it is irrelevant whether they are introduced or not.

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    Mute Michael Mcgregor
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    Apr 8th 2020, 7:42 PM

    @Deirdre O’Byrne: because there will always be a cohort of selfish idiots who don’t give a toss about the people around them. These people require force to follow the law

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    Mute Garry Coll
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    Apr 8th 2020, 12:56 PM

    With all of Leo and Simon’s spin unit clogging up the message boards back slapping and up-thumbing all around, virtually accusing those who disagree with them as condemning vast swathes of the population to death, here is someone with a different perspective.
    Can’t say that I agree completely, but he makes a good argument.

    https://gript.ie/lets-face-it-these-new-garda-powers-are-absurd/

    20
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    Mute KEN L
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    Apr 8th 2020, 1:53 PM

    Wouldn’t we be nice now if Sinn Féin were in power??

    We all know what their “comrades” did to our Gardai

    14
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    Mute James Lane
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    Apr 8th 2020, 12:58 PM

    PERSONALLY I’M DELIGHTED THESE NEW POWERS HAVE BEEN ENACTED AND I SINCERELY HOPE THEY ARE ENFORCED.
    THE MAJORITY OF PEOPLE ARE VERY RESPONSIBLE AND LAW ABIDING AND WILL HAVE NO PROBLEM ADHERING TO THESE NEW LAWS. THE ONLY PEOPLE THESE NEW LAWS WILL EFFECT ARE THE MORONS THE KEEP GOING OUT WHEN THEY HAVE NO LEGITIMATE REASON TO BE OUT. THE DO GOODERS AS USUAL ARE UPSET AND ON THEIR HIGH HORSE GIVING OUT ABOUT ANYTHING THAT EFFECTS THOSE WHO FLOUT THE LAWS OF THE LAND. THE MAJORITY OF PEOPLE WILL HAVE NO ISSUE WHAT SO EVER WITH THESE NEW LAWS BEING ENFORCED BECAUSE WE ARE ALREADY ABIDING BY THE RESTRICTIONS PLACED ON US, WE KNOW AND UNDERSTAND THAT THESE RESTRICTIONS ARE FOR OUR OWN GOOD, AND FOR THE GOOD OF OUR COUNTRY.

    19
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    Mute KEN L
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    Apr 8th 2020, 1:17 PM

    @James Lane:

    PERSONALLY I’M DELIGHTED YOU TYPE IN BLOCK CAPITALS AND I SINCERELY HOPE YOU KEEP DOING IT. THE MAJORITY OF PEOPLE ARE VERY SLEEPY AND WILL A PROBLEM NOTICING COMMENTS HERE UNLESS YOU TYPE IN BLOCK CAPITALS.

    20
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    Mute KEN L
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    Apr 8th 2020, 1:18 PM

    @James Lane:

    HAVE *

    WILL HAVE A PROBLEM

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    Mute Brynþór Patrekursson
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    Apr 8th 2020, 12:33 PM

    One, it will at least protect the guards from those horrid “Irish patriots” from their sovcit nonsense. On the other hand, there needs to be a sunset clause as there is potential to use these as section 40 have been misused in the past. While (almost) everyone is onside now, we don’t have a particularly good history of holding misuse of power to account.

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    Mute Gavin Conran
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    Apr 8th 2020, 12:38 PM

    @Brynþór Patrekursson: There is a sunset clause – it expires in a few days

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    Mute Ray Ridge
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    Apr 8th 2020, 12:39 PM

    Does the Teapot not have to sign it before it can become law……

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    Mute Micheál Ó Conchúir
    Favourite Micheál Ó Conchúir
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    Apr 8th 2020, 3:22 PM

    These check points and stops on the streets pose the biggest treat to people catching/spreading this virus as guards seem to still lean into windows touching vehicles and are very close to people when stopping them on the street while they are making essential trips in most cases….my closest contact to anyone so far was with a garda yesterday when she stopped me returning home from a supermarket….they really need to give these guards training to protect themselves and people they are speaking to about this.

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    Mute trebloc01
    Favourite trebloc01
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    Apr 8th 2020, 8:16 PM

    The wealthy brought the virus in from their winter holidays and now they’re spreading by travelled to their big fancy holiday homes.

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    Mute SFAnkleTapper
    Favourite SFAnkleTapper
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    Apr 8th 2020, 12:23 PM

    It only takes one idiot to infect many…ICLU are fools…this is about protecting LIFE

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    Mute Henry Toye
    Favourite Henry Toye
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    Apr 8th 2020, 6:24 PM

    Charlie “RIC” Flanagan
    I wouldn’t trust a word out of that mans mouth. We haven’t forgotten Charle.
    No matter how long this pandemic lasts. We will never forget.

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    Mute Michael Mcgregor
    Favourite Michael Mcgregor
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    Apr 8th 2020, 7:34 PM

    The new measures last for just a few days. Such half arsed pussy footing about. These measures need to be enforced until the pandemic has cleared.

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    Mute trebloc01
    Favourite trebloc01
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    Apr 8th 2020, 8:13 PM

    There are very selfish people out there that need to a toe in the hole

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    Mute Joe Griffin
    Favourite Joe Griffin
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    Apr 8th 2020, 6:00 PM

    They’re behind you!! Lots of folk in the distance behind these three protectors of the law. Did they turn around or are all of those folk out with good reason!

    1
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