New restaurant rules ‘almost totalitarian’, barrister says

The new regulations requiring pubs and restaurants to retain individual details of food consumed by patrons for 28 days have been described as “invasive, unnecessary, bureaucratic, restrictive and almost totalitarian” by one of the State’s pre-eminent licensing law experts.

Barrister Constance Cassidy SC claimed the measures were "ill-judged, ill-considered, ill-formulated and ill-understood, even by the very Ministers responsible for [their] introduction".

They were “a knee-jerk reaction more designed for public-relations benefits than for the benefits of the public’s safety health and welfare”, she said.

Minister for Health Stephen Donnelly has defended the new regulations, staying they would help enforcement against “the tiny minority” who were flouting the rules.

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Mr Donnelly said pubs and restaurants were already keeping a till receipt for VAT purposes and these receipts were kept for up to six or seven years; the regulations meant they just needed to make it available for inspection for 28 days.

However, Ms Cassidy said there appeared to be a "picture of complete confusion and a manifest absence of awareness by the actual Ministers responsible for the enactment of this legislation as to what [it] means".

She told The Irish Times that the legislation as drafted made it "utterly clear" the operator of a pub or restaurant must make a record of the substantial meal or meals "by each member of a party" and added that the "suggestion voiced by Ministers that there was only a requirement to maintain a record of the 'lead' person's details [was] erroneous".

‘Bureaucratic intermeddling’

Ms Cassidy said the measures were “exceptionally invasive” and constituted “a bureaucratic intermeddling” with the operation of businesses which were facing unprecedented challenges.

It was “difficult to see what is the effective purpose of the regulation”, she added, pointing out that if they were “deemed essential to the preservation of the public health, then presumably that can be clearly communicated and perhaps should be communicated as a matter of urgency to the Dáil Covid-19 committee, where the matter can be adequately and properly debated and the rationale explained”.

However, she expressed doubts it would be possible “to demonstrate any proper objective basis for the introduction of the regulation” to that committee.

"If the intention is to weed out rogue operators, quite simply the most effective manner to so do is to undertake the trial purchase, as has been done by an Garda Síochána in underage licensing cases and by the HSE in underage cigarette sales," she said. This approach would generate "clear and distinct evidence which is wholly admissible in court and which will serve to ensure the successful prosecution of the rogue operator".

She said that while Mr Donnelly “may simply suggest that all businesses have to keep till rolls and VAT receipts, these regulations go far beyond this and essentially require a dedicated and detailed record, a record which if to be effective should carefully identify and itemise perhaps not only what is ordered but also what is consumed”.

She added: “If it is intended to aid the enforcement of the law, it is questionable whether or not it so does.” Unless everything consumed by every person was clearly identified by stored records then the information would make it “almost impossible to successfully secure a conviction”.

She also highlighted the “obvious concern one has as a citizen as to the mindset of a government that would seek to introduce increasingly invasive, unnecessary, bureaucratic, restrictive and almost totalitarian measures. To the onlooker, it seems that this Government is now adopting a bunker/siege mentality.”

She called on the Government to “embrace a more inclusive approach, involving the actual businesses and operators in the individual aspects of the industries which they are seeking to regulate”.