I move: "That the Bill be now read a Second Time."
I thank the House for agreeing to deal with this short Bill as an urgent matter. It is fair to say it deals with an issue which is of equal concern to all sides and I trust that this consensus will contribute towards its speedy enactment.
The primary purpose of the Bill is to amend the Intoxicating Liquor Act 1988 to provide a clear statutory basis for the holding of alcohol-free events for persons under the age of 18 years in licensed premises, such as a nightclub, or a part of licensed premises, such as a function room in a hotel, at a time when intoxicating liquor is not being sold, supplied or consumed and any bar counter in the relevant space is securely closed.
The position at present is that section 34 of the Intoxicating Liquor Act 1988, as substituted by section 14 of the Intoxicating Liquor Act 2003, generally prohibits persons under the age of 18 years from the bar of licensed premises after 9 p.m. Deputies will recall that restriction in the 2003 Act constituted part of the Government's response to concerns expressed both by the Commission on Liquor Licensing and the strategic task force on alcohol in regard to alcohol-related harm among young people.
When I came into office, a young person could stay in a pub until 11.30 p.m. in the company of anybody. Whether the young person was 14, 15, 16 or 17 years of age, it was not illegal for him or her to be there. What is more, as a result of a number of court decisions, it was very difficult for the gardaí to establish that any drink in front of the young person was an alcoholic drink because we live in a world of alcopops and so on. Unless the garda actually tasted or analysed the drink in question, the law had, effectively, become unenforceable.
On 27 May 2003, I obtained Government approval for the early drafting of the Intoxicating Liquor Bill 2003 and I published the general scheme of the Bill on the same day. This was followed by a consultation phase during which I discussed the proposals set out in the general scheme with licensed trade bodies and with the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights.
The proposals in the scheme were subsequently adapted to take account of certain concerns that had been highlighted and the Bill was presented in the Seanad on 17 June. I want to make it clear that the potential impact of the Bill on the operation of alcohol-free events in licensed premises was never raised during the consultation period in this or the other House, or anywhere else. Neither was it raised during the subsequent debates on the Bill in the Seanad and in this House.
One of the issues raised during our debates was the possible impact of the restrictions on the holding of private functions, such as weddings and birthday and retirement parties, in licensed premises. I recognised the validity of these concerns and I subsequently introduced an amendment providing that it shall not be unlawful for under 18 year olds to be present in a bar on the occasion of a private function at which a substantial meal is served to persons attending the function.
If the potential difficulties with the holding of alcohol-free events had been raised, I would have had no hesitation in bringing forward a suitable amendment along the lines set out in this Bill to make it clear that there was a statutory basis for the holding of such events.
It is important to say that it was not the intention of the Oireachtas when enacting the 2003 Act to restrict in any way the activities of voluntary bodies and their dedicated and hardworking volunteers who organise alcohol-free alternative events for young persons. On the contrary, I recall participants in the debates referring to the need to encourage young people to engage in leisure activities not involving the consumption of alcohol and the need for additional funding for such initiatives.
I had the pleasure recently of attending the launch in Croke Park of the no name club's promotional video and I express my admiration for all the wonderful work being done by that organisation. Eddie Keher, DJ Carey and others were present on that occasion to support the work of that body and of similar bodies throughout the country.
Shortly after the entry into force of section 14 of the 2003 Act at the end of September 2003, concerns were expressed by certain youth organisations that the restrictions provided for in section 14, while generally welcome and justified in terms of combating alcohol-related harm among young people, could have the effect of interfering with the holding of alcohol-free events for persons under the age of 18 in discos and nightclubs licensed for the sale of alcohol.
There is nothing to prevent such events being held in non-licensed premises, such as schools or community halls. However, I readily accept the point, which has been made by the organisers of alcohol-free events, that the holding of such events in nightclub premises or hotel function rooms increases their appeal for young people because of the comfortable surroundings, lighting, special effects, disco music and so on.
Arising from the concerns expressed in September 2003 about that possible negative impact, legal advices in regard to the operation of such events were obtained by my Department from one of the country's leading experts in licensing law. The conclusion reached, with which I fully agreed — I also fully agreed with the analysis — was that where licensed premises, or a part of such premises, are not being used for the sale or supply of intoxicating liquor and the bar counter is closed, such premises do not constitute a bar for the purposes of the 1988 Act. I subsequently conveyed my view of that issue to this House on 4 November in the context of a reply to a series of parliamentary questions on the topic.
More recently, the issue was again raised in the context of the reported cancellation of alcohol-free events planned to celebrate the release of junior certificate results. I understand that the Garda Commissioner consulted the Attorney General who advised, while making it clear that he had no function in prosecutions, that in his view the provisions in question did not prohibit under 18 year olds from attending alcohol-free functions in a portion of premises in which the bar had been physically closed and was not being used for the sale of intoxicating liquor.
The licensing Acts are an area of mixed competence. In respect of the enforcement of the licensing Acts through the licensing process before the District Court, which is a civil matter, the Garda Síochána is bound by the directions it receives from the Attorney General. Therefore, in the case of a decision as to whether something is or is not a good ground for objection to a licence being renewed, the Attorney General gives legal advice to the Garda Síochána. Since 1974, however, when it comes to a criminal prosecution, the Director of Public Prosecutions is the person in whom the decision is vested. The DPP is independent of the Attorney General when deciding to initiate prosecutions.
In respect of the same section, there are two different competences among the law officers. When it comes to a decision as to whether an objection should be taken to a licence on the grounds of the meaning of a particular section, it is for the Attorney General to advise and direct the Garda Síochána as to the proper meaning of that section. When it comes to a decision as to whether somebody should be prosecuted under the same section, it is a matter for the independent decision of the DPP. That is inevitable where there is a mixed civil and criminal competence.
I am also aware that the Director of Public Prosecutions, who, as I said, acts entirely independently of Government and the Attorney General in regard to the prosecution of offences, has directed that prosecutions be taken in certain cases where alcohol-free events have been held on licensed premises. As far as I am aware, no such prosecution has been successful to date. I have seen details of a case in County Galway where the District Court dismissed the charge on hearing that alcohol was not available from the bar and the shutters were closed. Media reports have indicated similar outcomes in other cases.
I acknowledge that the situation that has developed in regard to alcohol-free events is unsatisfactory. If the Director of Public Prosecutions takes the view that prosecutions should take place and the Attorney General is of the view that the law has a different meaning, it is important that people who are doing their best for young people should not operate under a cloud or a threat, or have ambiguity hanging over them.
The definition of "bar", which is, for current purposes, set out in section 2 of the Intoxicating Liquor Act 1988, serves a number of different purposes in that Act. I did not invent a new definition for the term "bar" in the 2003 Act. In this respect, the 2003 Act amended the 1988 Act which already contained a definition of "bar". The term "bar" is used in licensing law in a slightly ambiguous way. All of us would say we were standing in a bar having a drink, and "bar" has a certain meaning in that context, but there is also the sense of leaning up against the bar, as in bar counter which is a slightly different thing. If one is a barrister like me, the bar has a third meaning as well, but we will not go into that at the moment. Dealing with the two meanings of "bar", first as an area in which drink is sold and second as a counter over which drink is sold, it is a pity the 1988 Act and previous licensing law have adopted a definition of the term "bar" which attempts to cover both the physical counter and the room in which it is situated. This has given rise to debate among lawyers as to what is meant by the definition which was inserted in the law in 1988 and this lies at the bottom of the present difficulty, that the Director of Public Prosecutions has taken one view and the Attorney General has taken a different view.
I recognise that the lack of a clear provision in statute law which could permit the holding of alcohol-free events in licensed premises and stated circumstances has created an uncertainty which has resulted in understandable caution on the part of some organisers of such events and, in particular, the licensees of the premises on which they are held. It is one thing for a volunteer to wonder whether in organising a no name club, he or she is doing so in conformity with the law. It is a much more serious thing for a bar owner to be in the position of wondering whether, if he allows these people on to his premises, he is in the clear. The purpose of the Bill is to definitively remove such uncertainties.
The importance of alcohol-free alternatives for young persons is appreciated on all sides of the House and although we had a vote on whether there should be a guillotine on today's events one can see from the debate that everybody is clear that we favour people being able to organise discos of this kind in these kinds of premises. The National Crime Council, the National Children's Advisory Council and the strategic task force on alcohol in its second report launched on 22 September highlighted it again in recent times. We are all agreed about where we want to be and the real problem is whether I can leave in place a definition under the 1988 Act which has the effect of casting a doubt over this well worthwhile activity.
Deputies asked on the Order of Business what was the urgency of all this. The urgency is that if the Director of Public Prosecutions takes, as I understand, a differing view from that of the Attorney General and directs people to be prosecuted, it is a matter of urgency that the law should be clarified in that context. It would not be a matter of urgency if this were simply a matter of legal debate in lawyers' magazines or whatever because I could then wait until the major reforming licensing legislation, which is on the Cabinet table at the moment, would go through. In drafting that legislation I had already decided to clear up this ambiguity but I have now come to the point where I cannot wait for that major legislation which will entirely restate the law in regard to intoxicating liquor. With the knowledge that the Director of Public Prosecutions takes the view that the Garda should prosecute anybody who would have somebody on his or her premises unlawfully, I cannot wait for it to go through the drafting process. That is the dilemma and the reason for urgency.
It would be wrong of me to ignore the issue and to say that is a matter for the DPP and he is independent. In those circumstances I would be exposing good people doing good work in society to a danger of prosecution in circumstances where it is unnecessary to do so. If Members of the House want to know why it is urgent that it should be done, it is urgent because if the Director of Public Prosecutions takes that view there will be more prosecutions, and even if the Attorney General's view turns out to be correct and the view now taken by the District Court Judiciary turns out to be upheld at every level in the judicial system, it is still wrong in my view that people should be exposed to prosecution even if ultimately my view of the law and that of the Attorney General is found to be correct.
Section 1(1) provides that for the purposes of section 34 of the 1988 Act, it shall not be unlawful for a licensee to allow a person under the age of 18 to be on licensed premises or a part of licensed premises, at a time when intoxicating liquor is not being sold, supplied or consumed there, and any bar counter there is securely closed. This is a clear and straightforward provision that will provide certainty for licensees and it responds to the requests for clarity which I have received from certain licensed trade bodies.
Section 1(2) provides that for the purposes of section 34A of the 1988 Act, the section that requires persons aged at least 18 years but under 21 to have an age document with them in order to be in the bar of a licensed premises after 9 p.m., it will not be unlawful for a licensee to allow such a person who has not produced an age document to be on licensed premises in the circumstances mentioned in subsection (1). Not merely is it not an offence for somebody under the age of 18 to be there in those circumstances but somebody between 18 and 21 who if drink was being served would have to have an evidence of age card with them are also saved by subsection (2).
While alcohol-free events are generally directed towards younger teenagers it is probable that over 18 year olds would also be present, possibly helping to run the event. So it is reasonable that the requirement to carry an age document should not apply in circumstances set out in subsection (1).
Section 1(3) provides that for the purposes of sections 33 and 34 of the 1988 Act it will not be unlawful for a person under the age of 18 to be on licensed premises in the circumstances mentioned in subsection (1).
Section 1(4) states that for the purposes of section 34A of the 1988 Act, it shall not be unlawful for a person aged at least 18 years but under the age of 21 who does not have an age document with him or her to be on the licensed premises in the circumstances mentioned in subsection (1).
Section 1(5) provides a defence for a person charged with an offence under the relevant provisions of the 1988 Act. Section 1(6) makes it clear that nothing in the Bill prevents any person raising any point of law or other plea or objection which would be open to a person to bring under the relevant sections of the 1988 Act. That is intended to prevent anybody arguing that the change we are bringing about in the law by making it more certain would sweep away anybody's defence if he or she were the subject of an existing prosecution. Section 2 contains the short title, collective citations and constructive provisions. These are standard provisions in legislation of this type.
Before concluding I wish to say a few words on the subject of codification. Some Members on the Order of Business said they would like to raise other issues at this point. When I brought the 2003 Bill before this House and Seanad Éireann I indicated that it was a temporary measure, that a codification Bill would be introduced and that I was making an immediate response to the matter of drunkenness and youth abuse of alcohol to tide the State over until such time as the codifying legislation came through. I said if anything in the legislation was objectionable, required revision or better judgment was passed on it, I would be more than happy in the context of the codifying legislation to remedy any defects that appeared in it.
Some people who referred to "nanny statery" and the like appear to forget that I was faced with untold newspaper columns asking what I intended doing about young people having their stomachs pumped out in accident and emergency departments around the country. The law as it stood was unworkable for the reasons I mentioned and I was asked what I would do about it. This House collectively decided it would take that interim measure even though it knew that a codifying Bill was on the way because it required an immediate response, not just a paper response at some later time.
A royal commission on liquor licensing in 1899 first recommended the codification of the licensing laws. This recommendation has been repeated by Government appointed commissions of inquiry in the following years: 1925, 1957 and 2003. I am pleased to inform this House that the text of a codifying Bill comprising over 200 sections is now on the Cabinet table. It will deal with all areas of intoxicating liquor law, as it is now called. From nightclubs to the protection of young persons to theatre licences to restaurants, the whole gamut of licensing law is now on the Cabinet table for consideration, as a result of the hard work of officials in my Department and their independent legal advisers and the Commission on Liquor Licensing. I hope in the near future to get authority from the Government to draft the relevant legislation and if I do, I will also publish the heads so that everybody will be in a position to contribute to the debate on it with a view to ensuring everyone has as much input as he or she wants.
I anticipate the Government will approve the drafting of the Bill in the coming weeks. A few issues have to be discussed in detail. It will repeal all the licensing Acts and related provisions from 1833 to 2003, 100 statutes in total, and replace them with updated legislation geared to modern conditions. In particular the Bill will include provisions related to public houses, off-licences, hotels, nightclubs, theatres, supply of drink to young persons and a host of other issues that are of concern to everybody in this House. I am proud that my Department's industry has brought us to the point that after five commissions recommending codification over a period of more than 100 years, this has been done and that I will be in a position to bring that Bill before the House shortly.
In the meantime, there is no reason why good people such as the No Name Club movement should operate in circumstances where it or the owners of the premises risk criminal prosecution for doing good work in the name of youth. That is what this Bill is about. It would not have been urgent if there was not a real risk of prosecution. However, there is a real risk of imminent prosecution in these cases and therefore I am stuck with the situation. In saying that, I am by no means resentful that we have an independent system of prosecution which makes its decisions entirely independent of Government and the Attorney General. The Attorney General and I have a view of this law which is not shared by the Director of Public Prosecutions. In those circumstances I have a duty to save those people who are doing good work in our society from the threat of prosecution.