When one is attacked from all sides, it reassures one that one is not at either extreme of the pendulum.
Section 1 contains the Short Title, collective citations and construction and commencement provisions. It is my intention to phase in the implementation of the Bill because some people will have a moral entitlement to decent notice before it comes into operation.
Section 2 contains definitions. The definition of bar is taken from the Intoxicating Liquor Act 1988. That is an important definition because a distinction is made in sections of the Bill between licensed premises and the bar of licensed premises. For example, in respect of hotels, this is of crucial importance because underage persons age are entitled to be in an hotel in which they reside. They should not be in a position where they have to produce evidence of age cards to gain access to the hotel. On the other hand, if certain requirements are made in respect of the bars of hotels, it is a reasonable balance.
Admission to the bar of licensed premises is prohibited in certain cases, but access to other parts of the premises – for example, a function room or a dining room or many public houses which serve food – is not affected. If a room is set aside which is not a bar, many of the provisions of the Bill will not apply to them.
Some Members of the House will have heard Pat Kenny and me discussing the prospects of the Bill on radio recently. He mentioned certain pubs in the west which served families late at night. They will have time for rearrangements before the next tourist season and will be in a position to have special rooms where family parties can be served with food. The adults in the family party will be allowed to have alcohol with their food without infringing the terms of this legislation.
This section also contains definitions of "drunken person"' and "disorderly conduct". Arising from last week's discussions with the joint committee, I have brought the definition of "drunken person" into line with section 4(1) of the Criminal Justice (Public Order) Act 1994. People were asking what constituted a drunken person and whether somebody who was tipsy, merry or whose speech was slurred was drunk. My answer was that District Court judges, confronted with cases where this was a relevant issue, would decide on a common sense basis and, in criminal cases, beyond all reasonable doubt. We have decided on a high threshold in regard to drunkenness. To be regarded as drunk, a person must be intoxicated to such an extent as would give rise to a reasonable apprehension that he or she might endanger himself or herself, or any other person in the vicinity. In social terms, a person would need to be well drunk before these provisions would have effect.
The broad definition of "disorderly conduct" takes account of the recommendations of the Commission on Liquor Licensing. Section 3 repeals a number of provisions being replaced in the Bill which I will mention as I move through the sections.
In regard to conduct on licensed premises, the provisions set out in Part 2 of the Bill update the law. Sections 4, 5 and 6 deal with drunken persons and drunkenness, while sections 7 and 8 deal with disorderly conduct. They update and replace provisions in the Refreshment Houses (Ireland) Act 1860 and the Licensing Act 1872, which have fallen into disuse largely because of the penalties provided for under them.
Section 4 prohibits the supply of intoxicating liquor to drunken persons by licensees, as well as drunkenness in the bar of licensed premises. It provides that a licensee shall not admit a drunken person to the bar and that where a person is drunk on leaving licensed premises, it shall be presumed that he or she was drunk while on the premises until the contrary is proved.
Section 5 prohibits the supply of intoxicating liquor to drunken persons in licensed premises by a person other than the licensee. In other words, a drunken person cannot send a sober person to the bar or rely on an intermediary to further the process of intoxication.
Offences by drunken persons are set out in section 6 which provides that a drunken person shall leave licensed premises on being requested to do so by a garda. Moreover, such a person shall not seek re-entry to the bar of any licensed premises for a period of 24 hours. Access to a restaurant or other facilities within a hotel will not be affected. A Garda power of arrest is also included.
Section 7 places a duty on licensees to preserve order on licensed premises, while section 8 prohibits disorderly conduct on such premises. A person engaging in disorderly conduct must leave the premises on being requested to do so by a licensee or member of the Garda and shall not re-enter the premises within a period of 24 hours. Again, a Garda power of arrest is included. The section also provides that a licensee may refuse admission to a person convicted of an offence under the section where such admission could reasonably be regarded as involving a substantial risk that the person would engage in disorderly conduct.
The relevance of criminalising disorderly conduct and drunkenness is that no licensee can be held to infringe any law if he or she is defending his or her premises or person from admitting a drunken or disorderly person to the premises. The right of admission, implied generally by licensing law, to people of good behaviour is, to that extent, curtailed.
Section 9 extends the temporary closure of premises penalty to include offences under several sections, including sections 4 and 7. While temporary closure of the premises will be mandatory in the event of conviction, the District Court will retain a margin of discretion with regard to the duration of the closure period. This penalty is confined under existing legislative provisions to convictions for under age drinking. The reason the mandatory penalty of closure for some period is being introduced is I want licensees and, above all, their staff to clearly understand they can say with safety to somebody on the premises that he or she has had enough to drink. Staff, in particular, will be able to say, "It is as good as my job is worth to serve you any more."
In America people in charge of admission policies to bars are inflexible. They can explain to customers who query their decisions that they will be sacked if they serve them. I want it to be understood that this provision is not just a matter of paying a fine of a few euro in the District Court. A fundamental cornerstone of our licensing law will be that if a person is drunk to the extent provided in this Bill, to admit him or her to a premises or bring him or her to such a state in a premises will be a serious offence. This will strengthen the hand of licensees against those who plead with them for more alcohol when they are clearly drunk, within the meaning of the Bill.
Other amendments of the Intoxicating Liquor Acts are included in Part 3, including, in particular, amendments relating to persons under the age of 18 years as set out in Part IV of the Intoxicating Liquor Act 1988. Section 10 provides that Thursday night closing time will revert to 11.30 p.m. instead of 12.30 a.m. The Commission on Liquor Licensing has recommended this change, which is also in line with the recommendations of the strategic task force on alcohol. At the recent joint committee meeting Deputy Deasy asked me to consider making this change for Fridays and Saturdays also. I have not received a recommendation from either of the expert bodies to that effect. Also, although I know he feels a mistake was made in the year 2000, this measure is enough for the moment. Next year, in the context of the consolidating and codifying legislation and a broad review of licensing law and policy, this issue can be revisited. We will then see whether there is public demand for the revisiting of the hours then in force.
Section 11 replaces section 5 of the Act of 1927 which makes provision for the grant of special exemption orders. The section contains three changes. First, in subsection (7) it provides for a local authority a role in determining the duration of special exemption orders in its administrative area. The District Court will retain discretion in granting such orders but shall have regard to any resolution adopted by a local authority in the area in which the premises are located. The local authority, before it adopts such a resolution, must consult the Garda and consider views submitted by it and any other persons, including health interest groups, before adopting any such resolution.
Second, the grounds on which objections to the grant of such orders may be made under subsection (6) are to be extended to include inconvenience or nuisance to persons residing in the locality, or an undue risk to public order in the locality. At present, the grounds are limited to "undue inconvenience to persons residing in the vicinity" of the licensed premises.
Third, in the context of the District Court attaching conditions to the grant of special exemption orders, specific mention is now made of a possible requirement to install a closed circuit television system. This will not be the case in every premises.
Section 12 prohibits the provision of entertainment during the 30 minutes drinking-up period permitted under existing provisions. Some Senators are not as expert as others on licensing law at closing times and some have never been in licensed premises when these hours have been reached. For that large majority in this House I explain that 12.30 a.m. is the latest closing time for ordinary pubs on a Friday night. However, with a special exemption a pub can trade until 2.30 a.m. In many cases, people are entitled to buy drink up to 2.30 a.m. and to continue drinking until 3 a.m. This effectively means that the dancing and drinking goes on until 3 a.m. This section provides that drinking-up time is also cooling-down time and that entertainment, in particular dancing, comes to an end at 2.30 a.m. in order that everyone will be nursing the remainder of their drinks and getting their coats to go home at that hour. I know that the House will welcome such a provision.
The Commission on Liquor Licensing recommended this change in order to ensure that the original purpose of allowing an orderly clearing of licensed premises is not defeated. It is ridiculous to have drinking-up time when people are on the dance floor.
Section 13 substitutes a new section for section 32 of the 1988 Act. It prohibits the purchase of alcohol for or its delivery to persons under the age of 18. However, the purchase or delivery of intoxicating liquor for consumption by a person under 18 in a private residence where a parent or guardian has given explicit consent shall not be unlawful. The provision that is being replaced is flawed in so far as it permits a 19 year old to buy two trays of drink and deliver them to a 16 year old, as long as it happened at home, without any liability and without any parental involvement or consent being required. In the event that Senators are worried, I should say that the term "parents" includes people who are in loco parentis.
Section 14 substitutes a new section for section 34 of the 1988 Act. It prohibits persons under the age of 18 from the bars of licensed premises. However, under subsection (2), a licensee may permit a child, defined as a person under 15, to be present if accompanied by a parent or guardian, but not after 8 p.m. I have had discussions with a number of interested parties and I will be interested in and guided by the views of Members on the question of moving the 8 p.m. limit to 9 p.m., particularly in view of the fact that many people made the point that, on summer evenings, 9 p.m. is more reasonable.
This discretion shall not apply where it appears to the licensee that the child's presence in the bar could reasonably be regarded as injurious to the child's health, safety or welfare. For example, if someone has a child in a pub all day, while he or she is drinking there, even though it is lawful for him or her to be there, the licensee is entitled to decide that it is injurious to the child's interests for such people to remain on the premises. Under subsection (3), a licensee may permit a person aged 15 to 17 to be present in the bar, unaccompanied by a parent or guardian, but not after 8 p.m. Subsection (4) contains a number of exemptions to the general prohibition. The remaining subsections are broadly similar to existing provisions in section 34 of the 1988 Act.
Section 15 introduces an entirely new provision in the form of the new section 34A to be inserted in the 1988 Act. It requires that persons under 21, apart from those in the company of a parent or guardian, will carry an age document in order to enter and remain in the bar, as opposed to any other room, of licensed premises. An age document may be a Garda age card, a passport, an identity card of a member state of the European Union, a driver's licence or a document prescribed in regulations to be made by the Minister. An age document is not required in order to gain access to any other parts of the premises.
This new obligation to produce an age document in order to gain admission to bars is intended to assist licensees in complying with provisions relating to under age consumption of alcohol and to assist gardaí in enforcing the law. The current voluntary system has always had the minor problem attached to it that one publican may think another publican will be more lax in his or her enforcement if he or she introduces a policy requiring its introduction, the consequence of which is that the lowest common denominator of enforcement tends to apply because of commercial pressures.
In a recent conversation with the Secretary of State for Northern Ireland, Mr. Paul Murphy, I suggested that this Bill would cause a problem with cross-Border situations because people come from the UK and Northern Ireland, in particular, into this State and may not have such cards. However, he helpfully pointed out that every Northern Ireland citizen, aged 18 or over, has a voter's card, a fact of which I had not thought. This type of document, which shows a person's photograph, date of birth and signature, can be designated by me under the residual provisions contained in the section. It will make it easy for people aged 18 to 21 to cross the Border and it is good news.
Arising from preceding amendments, section 16 contains a number of further amendments to the 1988 Act. It amends sections 31(2) and 33(1) to provide that the consumption of intoxicating liquor by a person under 18 is conditional on the explicit consent of that person's parent or guardian. Second, it makes it an offence for a person aged 15 to 17 to be present in bars of licensed premises after 8 p.m. I am willing to consider extending the latter to 9 p.m. Finally, it amends the existing temporary closure order provision, under section 36A of the 1988 Act, as inserted by the Intoxicating Liquor Act 2000, in order to make it an offence not to affix a conspicuous notice giving details of the closure order as required by that provision.
Section 17 has been introduced following discussions with the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights on 11 June and the concerns expressed by Members in respect of off-licences. It contains provisions dealing with the consumption of intoxicating liquor purchased for consumption off the premises and, for this purpose, updates and replaces section 13 of the Intoxicating Liquor (General) Act 1924. This section provides that a licensee shall be guilty of an offence if, with the licensee's knowledge or consent, intoxicating liquor supplied by the licensee in a closed container for consumption off the premises is consumed in another premises owned or controlled by the licensee or in a public place within 100 metres of the licensed premises. This limit of 100 metres is also referred to in the Criminal Justice (Public Order) Act 2003. The person who consumes such intoxicating liquor shall also be guilty of an offence. If a licensee gives a person drink, on the basis that they consume it outside the off-licence, he or she will be committing a criminal offence. The section also restates the existing prohibition on the consumption in an off-licence of intoxicating liquor bought there.
Section 18 is intended to permit any member of the Garda, whether in uniform or not, to enforce the licensing laws. At present, the powers of non-uniformed officers to inspect premises appear to be restricted to drugs-related offences under the Licensing (Combating Drug Abuse) Act 1997.
Section 19 provides that a person who claims that prohibited conduct has been directed against him or her in any licensed premises may seek redress before the District Court. For this purpose, prohibited conduct is defined as discrimination against, or sexual harassment or harassment, of a person contrary to Part II of the Equal Status Act 2000, on, or at the point of entry to, licensed premises. The forms of redress currently available under the Equal Status Act are being extended to include temporary closure of the premises concerned. For example, if someone was refused admission to a premises on the basis of his or her skin colour or sexual orientation, this provision would give the District Court the function of deciding whether that happened. It will also enable the District Court, in addition to the other remedies which were available to the equality tribunal, to make a closure order to emphasise the gravity of the infringement of the rights in question in the eyes of the court.
Provision is also made in subsection (6) for the Equality Authority to apply to the District Court for redress in certain cases, while subsection (7) provides that the authority provide assistance to persons applying to the courts for redress. People have said that the equality tribunal was an easy place in which to claim redress, which I accept. However, I am now giving the Equality Authority the role of assisting people in making claims in the District Court, effectively giving it a right to participate where there are allegation that there have been infringements.
I wish to emphasise that the proposed transfer of jurisdiction from the equality tribunal, ODEI, to the District Court is not intended to reflect any lack of confidence in or support for the work of the tribunal. It is rather a view that licensees should, in principle, be answerable for all their decisions in respect of admission, exclusion and maintaining order in their premises in a single jurisdiction. At present, the District Court is extensively involved in licensing matters, including the annual renewal of intoxicating liquor licences, the grant of special exemptions orders to licensed premises and the application of sanctions and penalties and temporary closure. It makes sense, therefore, to extend the court's jurisdiction to include the adjudication of cases taken against licensed premises under the Equal Status Act.
Under existing licensing law, licensees are required to operate their premises in a peaceful and orderly manner. This is a licence renewal condition. If, for example, a licensee admits or serves a person who is violent or disorderly, the action could expose him or her to an objection to the renewal of the licence before the District Court on the grounds that it is not being properly operated. Not admitting or serving a person can, on the other hand, expose the licensee to a claim of discriminatory action before the Equality Tribunal. A situation in which a decision to permit or refuse entry of service could expose a licensee to actions in two jurisdictions with different results is unsatisfactory, which is why I am proposing to adjust existing arrangements. I propose that, in future, it will be the responsibility of the District Court to adjudicate in such cases. However, the non-discrimination provisions of the Equal Status Act will continue to apply and heavier penalties will be available to the District Court than are now available to the Equality Tribunal, including temporary closure and revocation of the licence on the grounds of objections because of discrimination.
Section 20 prohibits the supply of intoxicating liquor at reduced prices during limited periods during any day. These are called, colloquially, "happy hours". This is intended to discourage practices which may lead to excessive consumption of intoxicating liquor. It will not prohibit or curtail practices such as sales or product promotions that take place over a period of days.
Section 21 makes provision for two types of regulation. The first will prohibit or restrict licensees from engaging in promotional activities that are likely or intended to encourage people to consume alcohol to an excessive extent, such as promotions inviting customers to drink all they can for a flat amount of money. The second will specify particulars to be affixed to any container in which intoxicating liquor is sold for the purpose of establishing a link to assist the Garda in investigations, but not necessarily an evidential link for criminal purposes where off-licences are concerned.
With regard to the first type of regulations, the Commission on Liquor Licensing recommended that promotional practices that are conducive or likely to result in excessive consumption of alcohol should be prohibited by law. That view is supported by the strategic task force.
With regard to labelling requirements, section 17 of the Intoxicating Liquor Act 2000 provides that the name of the owner and the address of the premises should be clearly indicated on a label to be affixed to any container in which intoxicating liquor is sold for consumption off the premises. This has not been commenced for practical reasons and is now being repealed. I have included the new provisions arising from concerns expressed by Members, both in Dáil Éireann with regard to the Criminal Justice (Public Order) Bill and in the Oireachtas joint committee hearing on this Bill. Implementation of these provisions by means of regulation is intended to avoid any later challenge to the legislation on the grounds that proper procedures had not been followed. It is also intended to notify the European Commission of proposed regulations under this section in accordance with the EU technical standards or temporary directives.
These measures will enable me to be reasonable in applying the provisions. There may be no good reason for labelling every bottle of expensive champagne sold inside a cardboard box because it is highly unlikely it would be handed over to young people to drink. However, there are strong reasons in certain cases for certain types of containers to be marked in a particular way. I want to have some flexibility in this regard.
The EU directives are intended to enable the EU Commission and member states to examine in advance proposed national technical rules in the interests of transparency. I am not free to do things which can interfere with trade. For example, if French wine exporters argued that to label and open each container was an infringement of their rights I would be in trouble with the EU Commission if I did not get their advance agreement.
Section 22 deals with the application to register clubs. Sections that amend or replace existing sections in the Intoxicating Liquor Act 1988 already apply to registered clubs by virtue of section 16 of the 2000 Act. Section 23 determines the exercise of jurisdiction by the courts in relation to sections 9 and 19.
Section 24 contains two amendments to the Equal Status Act. The first is intended to safeguard the discretion of licensees in relation to the presence of persons under the age of 18 years in bars of licensed premises. The House will recall the furore over this prior to the last general election. The proposal is in line with the recommendations of the Commission on Liquor Licensing and the strategic task force.
The second amendment provides that a licensee may set a minimum age for the sale and consumption of alcohol which is above the statutory minimum age of 18 as long as the policy is publicly displayed and is implemented in a non-discriminatory manner. It will be possible, for example, for somebody to refuse the sale of bottles of vodka to people under the age of 21 years. As long as a notice to this effect is clearly displayed on the premises, he or she will not be in the position of a licensee who was recently ordered to pay compensation of €1,000 to a person who was discriminated against on age grounds in those circumstances. It must be non-discriminatory on other grounds and clearly advertised. If it is a rule of the off-licence that people under the age of 25 years are not sold huge amounts or certain types of drink, it will not be an infringement of their equal status rights provided the rule is clearly advertised and not applied as a means of getting at other people on other prohibited grounds.
I have an open mind on the provision regarding the 8 p.m. limit for the presence of children on premises. Some have argued that in rural parts of the west there is almost a 40 minutes difference in lighting on a fine summer's evening and that the 8 p.m. limit is too onerous. If the House is of that view I will be happy to concur.
I am conscious that the introduction of the age document in section 15 at this stage of the tourism season might create difficulties for young people coming from Great Britain or Northern Ireland without passports or identity cards. It would be reasonable, therefore, to defer commencement of that until later in the year, possibly the early autumn, when the tourism season has abated. I look forward to the debate in the House and I reiterate my thanks to Members for facilitating me with this legislation at such short notice.