The Health (Amendment) (No.2) Act 2021 enables operators of ‘relevant indoor premises’ to permit access to their premises to ‘permitted persons’ who can demonstrate that they are fully vaccinated from Covid-19 disease, or who can demonstrate that they have immunity due to having recovered from Covid-19 infection. In certain circumstances children and certain staff are exempted from satisfying the above described requirements, and are also “permitted persons”. The operators of relevant indoor premises will be required to take reasonable steps to ensure that only permitted persons access their premises.
An EU Digital Covid Certificate will be considered evidence of immunity. The Act provides that the Minister may prescribe other documents issued by a body implementing a vaccination programme as proof of immunity (this includes international bodies).
The Act also designates provides power of inspection and enforcement to certain bodies and/or such other bodies as the Minister for Health may by order specify.
The Act includes enforcement powers including a power to apply to the District Court for an ‘Emergency Cessation Order’ and creates several new offences, including in relation to the presentation by a patron of fraudulent documentation in order to gain access to a premises.
The Act provides that operators of premises should not store data accessed to confirm the status of individuals in order to permit access to premises, and provides that it shall be an offence to present a document that is forged, fraudulently altered, or refers to another individual.
The provisions of Part 2 of the Act operate until 9th October 2021, with a provision that enables extension by a single additional period of 3 months.
The purpose of Part 3 of this Act is to make further and better provision to provide for flexibility in the operation of the Act in relation to quarantine in a designated facility in response to any evolution of public health advice or Government policy regarding international travel and mandatory quarantine; to provide for situations where a person in quarantine in a designated facility who has been in a designated state and tested positive for Covid-19 may be assessed by a public health doctor and allowed to leave quarantine where he or she no longer poses a risk of infection; to
provide for pre-travel testing requirements in the context of quarantine in a designated facility to be defined in regulations; to provide for travellers who are obliged to quarantine in a designated facility as a result of a failure to comply with pre-travel testing requirements to undergo post-arrival testing rather than being automatically obliged to enter quarantine in a designated facility; and to provide for related matters.
The provisions of Part 3 were to be commenced only when conditions are suitable, and shall continue for no longer than quarantine arrangements remain in place.
The Act allows for the admission of certain persons by indoor operators to relevant indoor premises subject to certain conditions and any applicable regulations. Such conditions include that reasonable steps have been taken to ensure that non-permitted persons are not admitted; that personal data should not be retained and that the operator must adhere to guidelines by certain bodies prescribed by the Minister.
The Minister may, by regulation provide for:
- further matters relating to operation and enforcement
- additional classes of permitted persons
- types of information of proof of immunity or ascertaining whether a person is a permitted person
- further premises or class of premises to be “relevant indoor premises”, or premises or class of premises to not be within the definition of “relevant indoor premises”
- further conditions which the indoor operator must adhere to including conditions for different classes of premises
- additional bodies who may carry out inspections for investigating or monitoring compliance with the conditions of opening
- guidelines by certain bodies which must be adhered to
- classes of persons who may be at a premises in the course of employment, on contract or otherwise in a professional capacity but do not meet the definition of a “permitted person”
- persons other than parent or guardian who may accompany a minor; and
- ancillary matters
The Minister may consult with other Ministers or certain bodies when making regulations.
An indoor operator may request that a person provide evidence that they are a permitted person.
It is an offence to provide a document that has been forged or fraudulently altered or relates to a person other than the person providing the document. A person who is guilty of an offence shall be liable on summary conviction to a class C fine.
There is provision for the designation of compliance officers. A compliance officer has power to enter a relevant indoor premises without warrant at any time to inspect, examine, observe and enquire, as they see proper, to assess compliance.
If, following such inspection, examination, observation and enquiry, the compliance officer forms the view that the indoor operator has granted access in contravention of regulations they will:
- Inform the indoor operator that they have formed such a view,
- Direct the indoor operator to take steps the compliance officer considers appropriate in order to comply with the regulations,
- Inform the indoor operator of the consequences of a failure to comply with such a direction.
It also provides for measures to be taken by the compliance officer in the event of a failure of an indoor operator to comply with the regulations. These measures include informing a member of An Garda Síochána, bringing an application to the District Court or issuing a compliance notice. Persons preventing or attempting to prevent or obstructing or attempting to obstruct a Compliance Officer from exercising their powers will be guilty of an offence.
Where there is failure or refusal to comply with a direction from a compliance officer and the compliance officer is of the opinion that such failure or refusal is continuing or likely to recur, they can make an ex-parte application to the District Court for an emergency cessation order for a period of up to 72 hours. The District Court has the power to adjourn the hearing and direct that the indoor operator be notified. On application to it, the District Court can also discharge an Order where the indoor operator proves that any direction is being complied with or gives an undertaking to the court that the statutory conditions will be complied with and the Court is satisfied that the discharge of the order is appropriate in the circumstances.
A compliance officer may issue a compliance notice to an indoor operator of a premises identifying the conditions that are not being complied with and require immediate compliance with any direction and prescribed conditions. A compliance notice shall take effect immediately once served on the indoor operator.
A compliance officer may apply to the District Court for a cessation order where he or she is of the opinion there has been a failure to comply with a compliance order and that such failure is likely to continue or to recur. This application is made on notice to the indoor operator. The sanction for a first cessation order shall be the requirement, subject to regulations, that a relevant indoor operator not grant access to a relevant indoor premises for up to 7 days. The sanction for a second or subsequent cessation order extends this period for up to 30 days. The Court may consider any mitigating circumstances and any undertakings related to future compliance. The Court has the power to suspend an order and to revoke the suspension, as appropriate.
Where a relevant indoor premises is restricted due to a cessation order or an emergency cessation order, a notice must be affixed to the outside of the premises. Failure to affix a notice will be an offence.A person who permits a relevant indoor premises to be open for business in contravention of a cessation order or emergency cessation order is guilty of an offence.
There is an appeal to the District Court in relation to a compliance notice. A decision of the District Court under this section can be appealed to the Circuit Court. There is an appeal to the Circuit Court against a cessation order.
The processing of personal data in a proof of immunity by an indoor operator only for the purposes of accessing and verifying information therein is permitted.
An ‘indoor operator’ is – a licence-holder;
- persons who are involved in the management or governance of clubs;
- in respect of other premises, an occupier, manager or any person who is in charge of such an establishment.
A ‘permitted person’ is
- a person in possession of proof of immunity relating to themselves
- a person under the age of 18 years, or such other age under the age of 18 years as may be prescribed, who accesses a relevant indoor premises accompanied by his or her parent, guardian or a person acting in loco parents, or on such terms as may be prescribed,
- a person 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, other than a person/class of persons, that the Minister may prescribe as being persons to whom this paragraph of this definition does not apply, or
- a person/member of a class of persons prescribed by the Minister in regulations
‘Proof of immunity’ is:
- an EU Digital Covid Certificate showing that the person is fully vaccinated, or of a type prescribed by the Minister;
- a document prescribed by the Minister in written or electronic form issued by a body implementing a vaccination programme (howsoever described) on behalf of a state that administered or caused to be administered the vaccination to the person concerned, as may be prescribed, confirming, in relation to the person to whom the document is issued, that the person has received such vaccination, or combination of vaccinations, as may be prescribed, including those vaccines currently approved by the European Medicines Agency (these are detailed in full in the Act);
- Any form of written information or proof verifying, in such a manner as may be prescribed, in relation to the person to whom the document is issued, that the person has recovered from Covid-19
A ‘relevant indoor premises’ is –
- a premises where food or non-alcoholic beverages may be lawfully sold for consumption on the premises;
- a premises where, but for this Act and regulations made under it, alcohol is lawfully sold or supplied for consumption on the premises, lawfully carried on or otherwise provided; or
- another premises or class of premises prescribed by the Minister in regulations.
Offences under the Act are capable of being committed by a body corporate.
Where a traveller arriving in the State having been in a designated state in the past 14 days has taken a RT-PCR test the result of which is that Covid-19 or the virus SARS-Cov-2 is detected, the period of quarantine for that traveller may be reduced by a public health doctor who is satisfied that the traveller no longer poses a risk of infection to others after the expiration of ten days beginning on the day the person is admitted to the designated facility;
The Act provides for circumstances where a traveller arriving in the State having not been in a designated state in the past 14 days, but without the result of a RT-PCR test or other pre-travel test as prescribed by regulation shall not be required to travel in a designated facility where alternative circumstances prescribed in regulation exist in relation to the traveller. Ancillary technical and consequential amendments are also made.
The Minister may be regulations prescribe a test, the purpose of which is to detect Covid-19 or the virus SARS-CoV-2 in the person to whom it is administered, that may be used as an alternative to a RT-PCR test for certain purposes provided for in regulations made under the Act. The Minister may also provide for the manner in which the test will be administered, prescribe persons approved to conduct the test, and prescribe any fees to be paid by persons taking the test.
Having regard to the advice of the Chief medical Officer, the Minister may prescribe circumstances in which a traveller arriving in the State having not been in a designated state in the past 14 days, but without the result of a RT-PCR test or other pre-travel test as prescribed by regulation, shall not be required to quarantine in a designated facility. In particular the Minister may prescribe by regulation that such a person must present himself or herself to a member of the Garda Síochána or relevant person, take a test prescribed in accordance with regulations pay such fee as may be prescribed for the test, remain at such a place as directed by the member of an Garda Síochána or relevant person until receipt of the results of the test and that the result of the test is negative.