Amendment No. 43.
Intoxicating Liquor Bill, 1959—Committee Stage (Resumed).
That is my amendment.
The debate has concluded on amendment No. 42 and the other amendments discussed with it.
I did not find anything in Standing Orders making provision for that.
There is, without doubt, a provision for that in Standing Orders. These amendments were all of the same nature.
Agreed, but my amendment was not moved and what I was questioning was the right of the House to debate an amendment which was not moved.
Two motions may not be before the House at the same time.
But apparently that is what the Chair holds.
No, the Chair does not hold any such view. The Chair allowed a discussion on the two motions, which is a different thing altogether. Is the Deputy pressing the amendment?
I am.
NEW SECTION.
I move amendment No. 43:
Before Section 12, to insert a new section as follows—
"(1) Notwithstanding anything contained in this or any other enactment, any person who, on the date of the passing of this Act, is the holder of a six-day licence shall be deemed to be the holder of a seven-day licence.
(2) Any person who is deemed by virtue of subsection (1) of this section to be the holder of a seven-day licence may opt to remain the holder of a six-day licence only by notifying such option to the Minister for Justice not later than one month after the date of the passing of this Act."
Amendment put.
The Committee divided: Tá, 31; Níl, 60.
Tá
- Barry, Richard.
- Beirne, John.
- Belton, Jack.
- Blowick, Joseph.
- Burke, James.
- Carew, John.
- Carroll, James
- Casey, Seán.
- Corish, Brendan.
- Cosgrave, Liam.
- Crotty, Patrick J.
- Dillon, James M.
- Donnellan, Michael.
- Esmonde, Sir Anthony C.
- Giles, Patrick.
- Lindsay, Patrick.
- Lynch, Thaddeus.
- McMenamin, Daniel.
- Manley, Timothy.
- Murphy, William.
- Norton, William.
- O'Higgins, Michael J.
- O'Higgins, Thomas F.
- O'Reilly, Patrick.
- O'Sullivan, Denis J.
- Reynolds, Mary.
- Rooney, Eamonn.
- Ryan, Richie.
- Sherwin, Frank.
- Spring, Dan.
- Sweetman, Gerard.
Níl
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Blaney, Neil T.
- Boland, Kevin.
- Brady, Philip A.
- Brady, Seán.
- Brennan, Joseph.
- Brennan, Paudge.
- Breslin, Cormac.
- Browne, Seán.
- Burke, Patrick.
- Calleary, Phelim A.
- Carty, Michael.
- Childers, Erskine.
- Clohessy, Patrick.
- Collins, James J.
- Crowley, Honor M.
- Cummins, Patrick J.
- Davern, Mick.
- Kitt, Michael F.
- Lemass, Noel T.
- Lemass Seán.
- Loughman, Frank.
- Lynch, Celia.
- Lynch, Jack.
- MacEntee, Seán.
- MacCarthy, Seán.
- Mather, Peadar.
- Medlar, Martin.
- de Valera, Vivion.
- Donegan, Batt.
- Dooley, Patrick.
- Egan, Kieran P.
- Egan, Nicholas.
- Faulkner, Padraig.
- Galvin, John.
- Geoghegan, John.
- Gibbons, James.
- Gilbride, Eugene.
- Gogan, Richard P.
- Haughey, Charles.
- Healy, Augustine A.
- Hillery, Patrick J.
- Hilliard, Michael.
- Humphreys, Francis.
- Johnston, Henry M.
- Kenneally, William.
- Kennedy, Michael J.
- Killilea, Mark.
- Millar, Anthony G.
- Moher, John W.
- Moloney, Daniel J.
- Moran, Michael.
- Ó Briain, Donnchadh.
- O'Malley, Donogh.
- Ryan, James.
- Ormonde, John.
- Sheldon, William A.W.
- Traynor, Oscar.
- Traynor, Oscar.
Tellers:—Tá: Deputies Donnellan and Beirne; Níl: Deputies Ó Briain and Loughman.
Amendment declared lost.
SECTION 12.
I move amendment No. 44:—
In subsection (1), to delete paragraphs (a), (b), (c), (d) and (e) and insert the following paragraph before paragraph (f):
"(a) that, if the acquisition, construction or alteration, as the case may be, of the premises were then completed and the application for the grant of the certificate aforesaid were then made and no objection on the ground of the character, misconduct or unfitness of the applicant were made on the hearing of the application, it would be proper, having regard to the provisions of the Licensing Acts, 1833 to 1960, to grant the application, and".
This is a drafting amendment which shortens and simplifies the wording of subsection (1). Perhaps I should at this stage also draw attention to the wording of the following subsection, subsection (2), line 47. That line should begin with the word "and". The intention is that the club may appeal to the court "and the court, if it is so satisfied, may grant the application..." I understand arrangements will be made to have the correction made when the Bill is being reprinted.
Does this mean that the Minister wants now to insert a word which is not in the amendment?
Yes. The word "and" was omitted. I do not want to blame the compositor, but it was omitted and we want to make certain now that it is put in
Amendment agreed to.
Amendments Nos. 45 and 46 might be discussed together.
I move amendment No. 45:—
To add to the section a new subsection as follows:—
"(9) On the hearing of any application for a new licence brought by virtue of the provisions of this Act or any other Act, the Court may, at the request of the applicant, treat the application as an application for a declaration under this section and on making such a declaration the Court may include therein, if such be the case, a declaration that the Court is satisfied as to the character and fitness of the applicant and that the application for a licence is refused solely on the grounds of the unsuitability of the premises at the time of hearing the application."
This amendment is designed to enable an applicant for a licence to ask, on the hearing of the application, that the application be deemed to be an application for a certificate, as envisaged by the Bill. The reasons for the amendment are quite simple. Frequently one comes across cases where the applicant applying for a licence either has not got the work entirely finished at the time of the application or a position arises in which the judge, hearing the application, indicates that he is not satisfied with the premises as they then stand, but that he would be disposed to grant the application if certain alterations were made.
The suggestion in my amendment is that in such circumstances the applicant, rather than be put to the trouble and expense of starting entirely new application proceedings, should be entitled to ask the court to deem his application at that stage to be an application for a certificate. The certificate would be the type of certificate envisaged in the Bill. That would enable the applicant, if granted such certificate by the court, to finish the work, on the one hand, or to carry out the alterations indicated by the court, on the other, and then come back to the court and get his licence, rather than that he should have to start all over again because of some possible minor lack of finish at the time he went in to make his application or because of some trivial minor alterations indicated by the Court as necessary. That is as far as amendment No. 45 is concerned.
Amendment No. 46 is consequential and deals with Section 13 of the Bill. Section 13 refers to the licensing of premises which are the subject of a declaration under the Act. If my amendment No. 45 is accepted it would be necessary to provide for that in Section 13. I think the Minister for Lands in any event will have a knowledge of the type of situation to which I am referring and which does require simplification. In any event, I think there are definite merits in favour of this amendment. I do not proposes to press the Minister to accept the amendments precisely in the form in which they are moved. If the Minister would indicate that he agrees in principle to an amendment to cover this situation, I would be quite satisfied.
I am advised that these amendments are defective in form. Section 12 provides for the granting of what is, in effect, a declaration of approval in principle for the granting of a licence for a particular premises that the applicant proposes to build, to reconstruct or to buy. The declaration will, as a rule, be given on the basis of plans of the construction work proposed, and the declaration is, above all, a declaration of the suitability and convenience of the premises. Deputy O'Higgins's amendment envisages that this declaration could be granted, even if the premises are unsuitable. He goes on, in amendment No. 46, to provide that a licence must in due course be granted if the premises are completed or altered in substantial accordance with the terms of the declaration. But there could be no question of premises being completed in accordance with a declaration given under Deputy O'Higgins's amendment, for the simple reason that that amendment deals with the case where an application is being made for a new licence and where, therefore, the court is dealing with premises as they are and not with plans of new premises or of proposed reconstruction.
One cannot speak of premises being completed in accordance with a declaration unless the declaration is linked with plans. It would not be so linked under the Deputy's amendment. If the applicant has plans, and they are approved, then, of course, he can get his declaration under Section 12 as it stands.
Quite apart from the fact that the two amendments, Nos. 45 and 46, are defective for the reasons I have explained, I am afraid that I cannot agree with what the Deputy is trying to achieve. The Deputy is concerning himself with a person who has neither a suitable premises nor plans for a suitable premises. If he has one or the other, he will be catered for in full without any amendment by the Deputy. What the Deputy wants amounts to this. He wants to create a situation in which a person with an unsuitable premises or inadequate plans can go into Court and get from the Court a declaration saying, in effect: "You are a suitable person to have a licence and the site or location of your premises is also suitable and objection by other publicans in the neighbourhood will not be sustained. If you produce suitable premises, you will get a licence."
The first question to be asked about this is what is the necessity for it. We are providing in the Bill that a person may go into court and seek a declaration without committing himself to the expense of buying or building the premises that he has in mind. We are providing that the court may give an approval in principle to the granting of a licence for the premises, irrespective of who the licensee may be in due course, as long as he is a suitable applicant; he does not have to be the person who applies for the declaration. The Deputy apparently wants to cater for a person who will not even go to the trouble of producing adequate or acceptable plans. Why should we cater for such a person?
But it is not merely a question of why should we cater for him. We cannot do so. Opposition to the grant of a licence, and the court's decision as to whether a licence ought to be granted, would often be greatly influenced by the type of premises to be licensed. A court might very well be disposed to grant a licence for premises planned to provide amenities other than drink where it might otherwise refuse. The opposition of other publicans and of residents in an area might well be influenced by the size of the premises proposed. It is, surely, quite obvious that before a court could give approval in principle to the granting of licensing facilities, it would have to see at least a plan of what sort of premises is proposed.
The Deputy also wants the applicant to be able, at the preliminary stage, to get a declaration of his own personal suitability. There are several reasons why we ought not do so. First of all, such a declaration would be unnecessary and pointless except in borderline cases, where there is a doubt about personal suitability. I see no reason why we should go out of our way to cater for such cases. As far as 99 applicants out of 100 are concerned, no question of unsuitability would ever arise.
If, however, we do look at the exceptional type of case, we must recognise that a person might appear suitable today but might be shown to be unsuitable long before the final application would come to be made perhaps two years hence—he might well be convicted of offences of a kind which would make him quite unsuitable. This alone puts out of question the idea of giving a certificate of personal suitability perhaps two years before this could possibly become an issue. But apart from that, the declaration that is provided for is a declaration attaching to premises, actual or planned, and has nothing to do with any individual. The declaration will be valid for any particular applicant who may, before the premises are licensed, acquire the necessary interest in them, provided of course he is not unsuitable. For these reasons, neither in form nor in substance, could I accept the amendments.
The Minister seems to miss the point of the amendments. I think the reason is that he is reading out a prepared brief in reply to a case which has in fact not been made and which it was not intended by me should be made in these amendments. The Minister appreciates when he talks about an applicant having suitable or unsuitable premises that that is a question which is decided by the Court. As far as the applicant is concerned, he is going into Court and presenting his premises to the Court. He does not know at that stage whether or not those premises will be dubbed as suitable or not by the Court. The simple point I am trying to cover is this. You do not infrequently come across cases where the Court says to an applicant: "Your premises are not entirely suitable, but with a slight alteration here or extension there your premises would be suitable." At present the Court carries out its functions through the existing legislation. Under this Bill, as drafted, the court must refuse that application on the grounds that the premises are unsuitable.
What is to stop them adjourning it?
That possibly could be done but if the law, as the Minister informs us, is hereafter to be fully enforced, the court should refuse the application and I am simply trying to cover that case by enabling the court—remember it rests with the court, not the applicant, under my amendment—if requested by an applicant to say it is prepared to deal with this matter on the basis of considering it as an application for a certificate. The court could then give a certificate to the effect that if the applicant carried out certain alterations on the premises, the premises would be suitable premises in the view of the court. That is all that is involved in these two amendments.
There is no need to set up bogies which do not exist, as the Minister did in his prepared reply. I am not urging the matter on the case which the Minister tried to knock down. I am not interested in the particular form of the amendment and, if the Minister thought there were more suitable ways of framing the amendment, I should be quite happy about it.
I think this matter is fully covered by Section 12. At all events, I am sure the Deputy is well aware that, even under existing law, in dealing with new hotel licences, it is a regular practice of the courts, where a door is discovered that must be closed, to adjourn the matter for a period to give the applicant an opportunity to do so.
But there is no obligation on the court to adjourn.
I agree there is no obligation on the court in strict law but the judges invariably are not unreasonable men in matters of this kind. Certainly if the application is any way reasonable, is just something small, I have no doubt that any court would give the applicant, on grounds of expense and convenience, the opportunity of putting it right. What could be done under the type of amendment which the Deputy suggests is an entirely different matter and I think, as far as Section 12 of the Bill is concerned, it gives a new power, a very useful power, and I cannot see the necessity for the amendment suggested by the Deputy.
I am in agreement this time with the Minister for Justice and the Minister for Lands. This amendment is not really one which simplifies an application for a new licence. It relieves the applicant for a new licence of responsibility of providing money for the erection of his proposed licensed premises so as to enable him to proceed. At least that is what I gather the amendment visualises and I think that this matter, as explained by the Minister for Lands, is adequately dealt with in the Bill. I do not really see any necessity for the amendment.
Amendment, by leave, withdrawn.
Section 12, as amended, agreed to.
SECTION 13.
Amendment No. 46 not moved.
I move amendment No. 46a:
To add to the section the following subsection:
"( ) A declaration under Section 41 of the Tourist Traffic Act, 1952, which is in force at the commencement of this Act, shall, notwithstanding the repeal of that section, remain in force for the period provided for in subsection (5) thereof and shall be deemed for the purposes of subsection (7) of Section 12 of this Act and subsection (1) of this section to be a declaration under subsection (1) of Section 12 of this Act."
This is little more than a drafting amendment to repair an omission from the section as it stands.
The Tourist Traffic Act, 1952, made provision whereby a person who intended to build or acquire premises for an hotel could apply to the court on the basis of the plans of the premises and, if the court was satisfied in the matter, it could grant to the applicant a declaration that a licence would in due course be granted for the premises, if constructed in substantial accordance with the plans. As the House is aware, this Bill, in Section 12, proposes to apply that principle to all licensed premises, and the relevant provisions of the 1952 Act are being repealed because they become superfluous.
It is possible, however, that at the time the Bill becomes law there may be in existence some declaration granted under the 1952 Act, the holder of which will not have completed the construction of the premises to which the declaration relates, with the result that the relevant licence will not have been granted under the terms of the declaration. The purpose of the amendment is to ensure that if any such cases exist, licences will be given in accordance with the declarations, notwithstanding the repeal in this Bill of the provisions under which they are granted.
Perhaps I may at this point mention briefly that it has been suggested to me that I should extend the principle of the section a little further by allowing applications to be made to the court on the basis of plans, by persons who wish to obtain a restaurant certificate, that is, a certificate that the premises are structurally adapted for and mainly used as a restaurant. I should like to consider this and perhaps bring in an amendment on Report Stage in this regard.
I think this is a peculiarly obnoxious amendment on account of its form. It reads:
A declaration under section 41 of the Tourist Traffic Act, 1952, which is in force at the commencement of this Act, shall, notwithstanding the repeal of that section, remain in force for the period provided for in subsection (5) thereof and shall be deemed for the purposes of subsection (7) of Section 12 of this Act and subsection (1) of this section to be a declaration under subsection (1) of section 12 of this Act.
There is no juggler or prestidigitator in the known world who could understand the meaning of that, and I merely wish to record a legislative protest against legislation in that form. Some effort should be made by the draftsmen to make the law reasonably comprehensible, not only to those who are required to enact it but to those who are afterwards required to advise their clients in regard to its provisions.
This will have a legal life only in respect of pending applications under the former Act and it will have no application when such applications are finished with.
The most powerful argument the Minister could make for it is that it is fated for an early death.
I do not see why an hotel, when looking for a new licence, should not be obliged to extinguish an existing licence, as a new public house will have to do. The position at the moment is that every hotel that has been granted a new licence is carrying on a trade similar to a public house trade and in a great number of cases these small hotels who have gained licences are doing a trade far in excess of that carried on by the public houses and are paying a far smaller licence fee.
At all events, I suggest, Sir, that it is not open to us to discuss the matter on this amendment.
Amendment agreed to.
Section 13, as amended, agreed to.
Sections 14 and 15 agreed to.
SECTION 16.
On behalf of Deputy McGilligan, I move amendment No. 47:
In page 13, line 16, before "registered" to insert "entitled to be".
The purpose of the amendment is to provide that if premises are entitled to be registered, even though they have not yet actually been registered, they should be eligible for renewal in the terms of Section 16 of the Bill. I am urging it on the Minister. Does he accept it?
We are not accepting that amendment. Does the Deputy want some information on it?
I am depending on the Minister's customary courtesy. I expect him to tell me, if he is not accepting it, why he is not accepting it.
Section 16 provides that hotels which get new licences in future must, as a condition of the renewal of those licences, be registered with An Bord Fáilte. It does not apply to hotels now licensed other than hotels which are subject to the requirement already, that is to say, hotels licensed by virtue of the Tourist Traffic Act, 1952, and there are very few of these hotels, if there is any at all. Practically speaking, therefore, the section is confined to hotels which get licences for the first time after the Bill becomes law. Deputy McGilligan's amendment proposes, in effect, that it should suffice if the hotel is entitled to be registered with Bord Fáilte, even if it is not registered in actual fact.
When the section was being drafted, we deliberately decided to require registration only for renewals and not for the first granting of the licence, because we felt that it might happen for one reason or another that the original application to the court might have to be made before registration with the board had been completed. The section as drafted takes care of the time factor in this respect—as long as the registration is completed before the first renewal becomes due, that is sufficient.
Once we get beyond this initial stage, however, I think that it would be wrong to accept anything less than actual registration with Bord Fáilte. If premises are entitled to be registered with the board, I do not see why the proprietor should not register them as soon as possible. I do not think that it would be in accordance with public policy, as enshrined in the various Tourist Traffic Acts, to allow concessions to be given for premises on the grounds that they are an hotel, if the premises are not registered.
I take it that, in the first instance, if a person applies for registration, he has substantially a year's grace and that it is only if he comes back for renewal and has not by then registered, he will be caught by the section. Is that substantially correct?
That is so, yes.
I should like to be clear on this, because, if I understood the Minister aright, possibly the need which I was trying to meet in the next amendment does not arise. As I read Section 16, it refers to the certificate for the renewal of a licence in respect of the Tourist Traffic Act but it seemed to me, carrying on from that, to refer to the granting of a certificate after this Act by virtue of Section 2, subsection (2), of the 1902 Act. I took that to mean, not simply the first renewal of a certificate granted under Section 2, subsection (2), of the 1902 Act but the actual granting of a certificate. Am I mistaken in that?
It is the renewal of the licence.
Even the licence granted under the 1902 Act?
Yes.
If the Minister looks at the White Paper, that does not seem to be clear. It seems to relate entirely to the portion of this section dealing with the Tourist Traffic Act, 1952.
I do not know to what portion of the White Paper the Deputy refers.
The explanatory memorandum.
According to the section and the explanation given by the Minister for Justice, this applies to renewals and it is provided in this Section 16 that registration must now be effected under this section.
Generally on the section, I should like to say that I do not regard it as being entirely satisfactory. I am relating this to Deputy McGilligan's amendment. It seems to me that the Government, by virtue of this provision, are now setting up the Tourist Board as the arbiters as to whether or not a hotel should continue to hold a licence.
I suggest that this is a very great departure from the law. It seems to me that whether or not a hotel or any other licensed premises should continue to hold a licence is a matter which should be dealt with by the court and not by the Tourist Board. Under Section 16 of this Bill, the say is being given to the Tourist Board as to whether these hotels will get a renewal of their licence or not, because, if the Tourist Board decide that whatever requirements are imposed by them for registration as a hotel are not being complied with, the board will not continue to register that hotel in their register. If it is not registered, the licence cannot be renewed. I think that is the position.
Deputy McGilligan's amendment might afford some protection against a capricious use by the Tourist Board of their powers because the amendment at least would put the hotelier in a position, if he thought he was entitled to be registered, of claiming then that he was entitled to a renewal of his licence and having the matter tested out in the court, whereas if the section remains as at present, unamended, the hotelier who is not registered or whose registration is not continued by the Tourist Board, has no business going into court looking for his renewal because the first question that must be asked is: "Are you registered with the Tourist Board and, if you are not, you cannot get a renewal." It seems to me that that is taking the power away from the court and vesting it in the Tourist Board.
Actually, the principle to which the Deputy has referred has been accepted largely already by the House in the 1952 Act. In actual fact, without this at all, under the form of procedure, the courts these times in practically all cases of hotel licence applications insist on the Tourist Board's recognition being proved.
They may not always be satisfied. The best check and safeguard a court can have that the premises for which the licence is sought will not be used as a glorified "pub", that the application is not being made solely for the purpose of getting a licence to sell liquor, is to ensure that Bord Fáilte have passed it as a hotel suitable to be licensed. That is the best safeguard for all concerned, including those in the licensed trade. Under the 1952 Act, the House did accept the principle, which is, I agree, extended very slightly by this provision.
Is it not a fact that under the 1952 Act Board Fáilte approval applied only in respect of new licences? Under this section, it will be obligatory on applicants to satisfy Bord Fáilte in respect of a renewal of a licence. Under the 1952 Act, existing licenses had not to get a certificate from Bord Fáilte but under this change, it is proposed that all licensees, whether applicants for renewals or new applicants, must have a certificate from Bord Fáilte.
It applies only to new licences.
Does it not apply now to renewals as well as new ones?
The renewal of new licences.
The renewal of a licence granted after the passing of this Act?
It strikes me there is something contradictory about this matter. To procure a licence for a hotel you would apply under the 1902 Act?
Not necessarily now.
You can do it under the 1952 Act.
But it has the same conditions—ten bedrooms set aside for hotel guests.
That is in the country.
Yes. It has been known that Bord Fáilte has registered premises and give a certificate for only six or seven bedrooms; in other words, only six or seven bedrooms come up to the standard required. There might be a few boxrooms left over which the board would not register but it would be sufficient to qualify for a licence under the 1952 Act or the 1902 Act.
I do not agree with the Deputy. I say this subject to correction, but my recollection is that you must have ten bedrooms set aside specifically for guests; in other words, you must have ten bedrooms. In addition, you must have the usual accommodation for staff, and so on. Therefore, I do not quite understand the Deputy's point when he says the board might recognise six bedrooms and that you could throw in a few boxrooms in order to come within the hotel law. As a matter of experience, I know that you must show that you have these ten bedrooms fully furnished and set aside specifically for guests, irrespective of the staff.
That is the point. You must satisfy the courts that you have ten rooms but you need not satisfy the Tourist Board that you have ten rooms. The Tourist Board are prepared to register six or seven rooms. When you go into court for a hotel licence, these questions are asked: (1) are you registered with the Tourist Board and (2) have you ten bedrooms set aside?
It becomes 20 under this Bill.
Only in certain cases; in Dublin, not in rural Ireland. The licensing authority does not inquire into the number of rooms registered by the Tourist Board.
No matter what the Tourist Board may say, the court will grant the licence only on being satisfied that there are ten legitimate bedrooms.
I appreciate the Minister's point of view and I agree with him. My point is that in order to register with the Tourist Board, if you can set up a minimum of five rooms up to the standard which the board requires, you are entitled to be registered with the board.
There may be a differentiation by the board as between guest houses and hotels.
I shall come to the guest house afterwards; I am referring now to the hotel. The board do not require a minimum of ten rooms in order to register with them. Take the case of guest houses. There are certain parts of the country which cater for a class of tourist who cannot afford the hotel standard and for whom the guest house is sufficient. I take it that once you are registered as a guest house with the Tourist Board, you automatically qualify for a licence, if you have ten bedrooms.
Does the question of guest houses arise?
Very much so.
The amendment deals with certain licensed hotels.
When is a hotel a guest house and when is a guest house a hotel?
Yes. Would the Minister agree that registration as a guest house is sufficient to qualify for a hotel licence?
provided it has the statutory requirements.
Of ten rooms.
Is that definite?
Yes.
Yes. We want to protect ourselves from this contradiction. The Tourist Board may refuse to register you as an hotel but they will register you as a guest house. The licensing court does not recognise a guest house and they will register you as an hotel. We are up against this contradiction in terms and I can envisage it arising in small towns in my own country and other rural parts where that class who want guest house accommodation are catered for. I should like to have that point clarified.
Am I right in thinking that under Section 2 of the 1920 Act, there is an artificial definition of a hotel. Under that section, the expression "hotel" refers to a house which has at least ten bedrooms set aside exclusively for the use of travellers. The register of hotels kept by the Tourist Board is a different thing entirely. My objection to the section is not because of any possible conflict between the register of the Tourist Board, on the one hand, and the definition in the 1902 Act, on the other hand. It is because it seems to give the Tourist Board the last say as to whether or not a genuine hotel is to continue to hold its licence or not.
The Tourist Board, in respect of registration of premises in its register of hotels, has a whole set of requirements which, within the past 12 months, have been stiffened up. They intend to look into such matters as the provision of a proper reception desk and reception facilities, hot and cold water, and so on, in bedrooms and certain minimum standards which will have to be observed in the case of premises which want to get on the register of hotels.
Some of these requirements which are minimum requirements by the Tourist Board may have nothing at all to do with whether or not the premises are suitable to hold a licence for serving drink. It seems to me that it is not right that the Tourist Board requirements, which may be in no way related to the drinking facilities of the hotel, should be allowed to override the decision of the court that a premises should be licensed.
I think there is some confusion as between my understanding and the Deputy's understanding of the situation. We are dealing here in Section 16 with new hotel licences. The Deputy will understand the reasons, without my elaborating on them, why a court must be very careful about the granting of a new hotel licence, and particularly a hotel licence in a country area. The tendency has been to try, since 1952, in many instances to get a hotel licence, shall I say, for the purpose of getting a liquor licence. This principle, as I have said, has been accepted in the 1952 Act. Under this section, it is proposed that a hotel to get a new licence, in future, must be on the register of the Tourist Board.
With regard to the 1952 Act, they are the ones who get their certificates on the plans, are they not?
On the plans, yes. In my recollection, at that time, you could go to the court with the plans——
I have no objection to the plans.
——before building the premises.
That is in relation to the 1952 Act. I am talking about the 1902 Act.
In respect of the 1902 Act, the position, in fact, is that the applicant did have a choice. I have seen that choice exercised for different purposes. By proceeding under the 1902 Act, without going near the court a chance is taken to complete the premises and then go to the court, all in one go, if I may put it like that. By going on the other procedure under the 1952 Act, they were expending no money except the architect's fees. They applied to the court to have the plans approved and then they were all right, if the building subsequently complied with the plans. Under the 1902 Acts, even since the passing of the 1952 Tourist Act, in actual practice, before granting a hotel licence, the courts had, of necessity, some evidence from the Tourist Board.
They had.
There is another way. The applicant who takes the risk of going into court and looking for a hotel licence under the 1902 Act without availing of the most simple proof of the suitability of the premises for a hotel, has no chance, in my view, of getting a licence from any court now. I think the Deputy will agree now on the desirability of that assurance where a new hotel licence is granted. Remember, under this section, we are granting a hotel licence possibly in areas where the hotel bar will be in competition with the local licensed premises and these facilities should not, on that ground, be granted, except in the case of a genuine hotel. They will be new premises and, therefore, there is no reason, in my view, why they should not comply with the requirements laid down for hotels by the Tourist Board.
That would be in the national interest, in the interests of the tourist business, and in the interests of the Tourist Board. With all due respect to the courts, they are in a far better position to assess, or to judge, the suitability of hotel accommodation than a learned judge might be. At all events, it will save the courts a lot of trouble if the Tourist Board witness is prepared to say: "We have already passed the premises as being suitable in accordance with our standards". The court need then concern itself only with the character of the applicant.
I suggest the section is a good section and, if I may say so, it is very necessary in order to prevent people from trying to get any kind of gazebo licensed for the purpose of selling drink, and not a genuine hotel.
Amendment, by leave, withdrawn.
I move amendment No. 48:—
To add to the section a new subsection as follows:—
"(2) This section shall not apply to an application for a certificate for the renewal of a licence which was granted after the passing of this Act by virtue of paragraph (2) of section (2) of the Act of 1902 if the notice of application in respect of which the licence was granted was pending for hearing in the Circuit Court prior to the passing of this Act."
I am not quite clear, now that that discussion has taken place, whether or not this amendment is necessary. I am rather inclined to think it is, for the purpose of seeing that by this legislation we do not prejudice the position of any applicant who may have his application before the court at the moment. It seems to me that under the provisions of the Bill at present, if the Bill were to go through to-day, and if there were an application at hearing in court to-day, if that application were to be continued to-morrow, there might be an alteration of the law. That might lead to the rediculous position that where to-day an applicant is entitled to a hotel licence under the 1902 Act, to-morrow he is not.
The type of case I have in mind is: under the 1902 Act, Section 2, a hotel with ten bedrooms is entitled to get a licence from the court, whether in the city of Dublin or outside it. This Bill will provide that hereafter, so far as the city of Dublin is concerned, an applicant must have 20 bedrooms before he can get a licence. It seems to me that we must safeguard the position in all fairness and in all justice for the applicant who at present has an application before the court. I do not know how many cases are involved.
In relation to Section 16, the necessity for Tourist Board registration for renewal of licences will apply only to new licences, as I understand from the discussions which have taken place. If the existing licences are not to be prejudiced, I think the applicant who, before this Bill goes through, has his application before the court and is, on foot of that application, granted a licence, should be in the same position as an existing hotel licensee.
I do not think there is any necessity for the amendment, but I shall have the point raised by the Deputy looked into.
I am quite satisfied with that.
Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
I move amendment No. 49:
To add to subsection (2) the following paragraphs:—
"or
(c) that notice of application for a licence under paragraph 2 of section 2 of the Act of 1902 was duly served and advertised in a newspaper in accordance with the appropriate Rules of the Circuit Court prior to the passing of this Act, or
(d) that an application for a licence under paragraph 2 of section 2 of the Act of 1902 which was pending for hearing in the Circuit Court prior to the passing of this Act was refused solely on the grounds of the unsuitability of the premises in respect of which the application was made and that a further notice of application in respect of the same premises was duly served and advertised in a newspaper in accordance with the appropriate Rules of the Circuit Court within one year after the passing of this Act, if on the hearing of such further application the Court should decide that the premises had been rendered suitable for the granting of a licence since the hearing of the first application."
The same point is involved as was involved in the previous amendment. I shall be satisfied if the Minister will look into the matter to protect applicants who have applications pending.
I shall have the matter looked into.
Amendment, by leave, withdrawn.
Section 17 agreed to.
Sections 18 and 19 agreed to.
SECTION 20.
Question proposed: "That Section 20 stand part of the Bill".
This refers to the licensing of premises adjoining premises already licensed. I am afraid I do not quite get the effect of this section. I do not know the effect of the 1902 Act in this connection. At present, one can extinguish a licence in a premises which is already licenced and then, if the place next door has a licence, one can apply to the Court to break into the adjoining premises and to have the adjoining premises, in respect of which you sold the licence licensed by extension. Is it the intention of Section 20 to put an end to that practice?
The Explanatory Memorandum has the explanation of Section 20. The explanation reads as follows:
Section 6 of the 1902 Act made provision for the granting of a new licence to cover an extension of a licensed premises where the extension made the premises more suitable for the business. Its scope is limited, however, to premises licensed at the date of the passing of the Act and there is no provision to enable a new licence to be granted in the event of substantial extensions to public houses which were licensed for the first time since 1902 under one or other of the provisions of the law which allow new licences to be granted in particular circumstances.
Section 20 is designed to make such provision. It is designed to make the same provision for extensions of a suitable kind to these premises as was available under the 1902 Act.
Question put and agreed to.
NEW SECTION.
I move amendment No. 50:
50. Before section 21 to insert the following new section:
"(1) Section 19 of the Act of 1943 is hereby amended by the deletion of the definitions of ‘licence', ‘publican's licence' and ‘beerhouse licence' and the insertion of the following definition:
"‘licence' means a licence for the sale of intoxicating liquor for the grant of which the production of a certificate of the Circuit Court or of the District Court is required."
(2) Reference to the Circuit Court in sections 21 and 22 (which relate to the grant of new licences in respect of more convenient premises or premises substituted for destroyed premises) of the Act of 1943 shall in relation to applications made thereunder by virtue of the amendment effected by subsection (1) of this section for certificates entitling the applicants to the grant of off-licences, be construed as references to the District Court and the reference in the said section 22 to the County Registrar shall, in relation to such applications, be construed as a reference to the District Court Clerk and the sections shall have effect accordingly."
This is one of a couple of amendments designed to remove some anomalies and to simplify procedure in relation to the granting of new licences in certain cases. The purpose of the amendment is, first of all, to extend to off-licences certain facilities which holders of on-licences have at the moment. Under Section 21 of the Intoxicating Liquor Act, 1943, the holder of an on-licence in a rural area may, in effect, transfer that licence to new premises in the immediate vicinity, provided, of course, the Court allows him. Section 21 does not apply except in rural areas, no doubt because the likelihood of interference with existing equities would be very high if it were extended to urban areas, where even a small change in location could make a great deal of difference. Section 22 of the 1943 Act allows a new on-licence to be granted for premises in the immediate vicinity of premises that have been burned down or otherwise destroyed.
It is difficult to see why these sections of the 1943 Act were confined to on-licences, since there is just as much reason for applying them to off-licences as to on-licences. In fact, under an Act of 1825, if premises are burned down, an off-licence may be transferred to other premises in the immediate vicinity, but the transfer must be made during the same licensing year, and that is a serious weakness in the provision, as it does not allow sufficient time. Section 22 allows a full 12 months, which is more reasonable.
As well as removing the anomalies to which I have referred, the amendment prepares the way for the adoption, in respect of all licensing applications, both in respect of on-licences and off-licences, of a simplified procedure which is proposed in the next amendment, that is, amendment No. 51. I shall deal with that when we come to the next amendment.
Amendment agreed to.
NEW SECTION.
I move amendment No. 51:
Before section 21 to insert the following new section:
"(1) Notwithstanding anything contained in sections 21 or 31 of the Act of 1943 (which sections relate to the grant of licences in respect of more convenient premises and the transfer of beer-house licences), where the person making an application under either of those sections is not the holder of the licence to be extinguished or transferred under the section but shows to the satisfaction of the Court hearing the application that he has procured the consent of the holder thereof to the extinguishing or transfer thereof, as the case may be, the application shall not be refused on the ground that the person making it was not the holder of the licence to be extinguished or transferred and the said sections shall be construed and have effect accordingly.
(2) Section 22 (which relates to the grant of new licences in respect of premises substituted for destroyed premises) of the Act of 1943 is hereby amended by the insertion in paragraph (c) of subsection (1) after ‘remains thereof' of ‘or that he has procured the consent of the lawful occupier of such premises or of the site and remains thereof to the making of the application, and if the licence referred to in paragraph (b) of this subsection is then subsisting, to the extinguishing thereof if and when a licence is granted pursuant to this section'.
(3) (a) A conviction recorded on a licence transferred under the said section 31 shall, upon such transfer, case for all purposes to be so recorded and shall be deemed never to have been so recorded.
(b) Where a new licence is granted to any person pursuant to an application under the said section 21 or the said section 22, a conviction recorded on the licence extinguished pursuant to the application (not being a conviction which became so recorded at a time, if any, when that person was the holder thereof) shall, notwithstanding anything contained in the said sections, not be deemed to be recorded on the new licence and the said sections shall be construed and have effect accordingly.
As I have already mentioned, this is an amendment to simplify procedure and incidentally to reduce costs in applications for new licences in certain cases. While the amendment is not dependent on acceptance by the House of my amendment relating to six-day licences—that is, amendment No. 52— I would mention that the simplified procedure proposed in the present amendment is also incorporated in amendment No. 52, and to that extent the two form part of a pattern.
As Deputies know the law does not normally allow new intoxicating liquor licences to be granted, that is to say, licences for premises that have not been licensed previously. There is, of course, a well-known exception for hotels but, apart from that, new licences may be given only in exceptional circumstances and then only in substitution for existing licences. In these latter cases, where the granting of new licences is permitted in substitution for existing licences, the law has generally provided that the new licence may be granted only to the holder of the existing licence. In practice, however, this requirement did not prevent what amounted to the sale of licences by persons going out of business to other people who wished to obtain licences for their own premises, but the procedure was cumbersome and costly.
A licence attaches to a premises and cannot exists apart from a premises. Consequently, the procedure which solicitors had to adopt usually involved the sale, not of the licence but of the premises, to the person who wanted the licence, then an application to the Court by the new licensee to have the licence extinguished and a new one granted to him for the other premises, and finally the re-sale of the first premises, now unlicensed, to the former owner. The sale and re-sale were of course no more than a legal fiction, but I understand that stamp duty had to be paid on the transaction as if they were bona fide sales. And, of course, the legal fees for such a complicated transaction must have been fairly substantial too.
What I am now proposing is that, in all cases where the grant of a new licence is conditional on the extinguishing of an existing licence, the complex procedure that I have outlined will no longer be necessary and that where the applicant for the new licence does not already hold the existing licence it will be sufficient for him to procure the consent of the holders of the existing licence to the extinguishing of the licence. The court will, of course, satisfy itself that a valid consent has been obtained. It will be for the parties concerned, as at present, to fix the price to be paid for the consent to the extinguishing of the existing licence. This will, in effect, be the price of the licence.
Amendment agreed to.
Amendment No. 52, relating to six-day licences, has been discussed with amendment No. 42.
NEW SECTION.
I move amendment No. 52:
Before Section 21 to insert the following new section:—
"(1) In this section—
‘full licence' means a publican's licence within the meaning of Part II of the Act of 1910 which is neither a six-day licence nor an early-closing licence;
‘restricted licence' means—
(a) a publican's licence which is not a full licence, or
(b) a beerhouses licence within the meaning of Part II of the Act of 1910.
(2) Where a person who holds a restricted licence in respect of any premises (in this section referred to as the relevant premises) shows to the satisfaction of the District Court on application thereto at any sitting thereof for the Court area in which the relevant premises are situate that, in relation to—
(a) another restricted licence in respect of premises situate in that Court area, or
(b) each of two other restricted licences in respect of premises both of which are situate elsewhere than in that Court area, or
(c) a full licence,
either—
(i) he is the holder thereof, or
(ii) he has procured the consent of the holder thereof to the extinguishing thereof if and when a full licence in respect of the relevant premises is granted pursuant to this section,
the Court shall cause a certificate to be given to that person entitling him to receive a full licence in respect of the relevant premises.
(3) Upon the grant pursuant to an application under this section of the full licence in respect of the relevant premises—
(a) the restricted licence in respect of the relevant premises shall be extinguished, and
(b) the other licence or licences, as the case may be, to which the application related shall be extinguished and the other premises or each of the other premises, as the case may be, to which the application related shall, for the purposes of the Act of 1902, be deemed never to have been licensed."
Amendment agreed to.
Section 21 and 22 agreed to.
NEW SECTION.
I move amendment No. 53:
Before section 23 to insert a new section as follows:
"The Court may at any time within one year from the passing of this Act grant an application by the holder of an off licence to transfer such licence from the premises to which it is now attached to other premises in the immediate vicinity which also are in the ownership of such holder and which in the opinion of the Court are more suitable for such licence."
The effect of this amendment is to give all areas the facility the Minister mentioned is already available to rural areas only. I can see the Minister's point of view in regard to where a vested interest had been built up in relation to an on-licence.
I should not have thought that the same case was to be made in respect of an off-licence where the off-licence is to be moved to another premises in the immediate vicinity. If it is not to be in the immediate vicinity, there will be a considerable difference. It seems to me that what we want to do as far as we can is to get premises which will be the most suitable premises in that vicinity licensed. I should like to hear the Minister's observations.
I should say right at the outset that I cannot accept the amendment. Many Deputies, and perhaps all Deputies, will have received representations from a particular firm in Dublin in support of this amendment. They may, indeed, have received representations twice, once before the amendment was tabled by Deputy Sweetman when the firm concerned asked for an amendment of this kind and again since the amendment was tabled.
When an amendment like this is put down and expressed to be limited to one year, it would be unreal for me to speak to it without at least some reference to the circumstances in which the firm for whose benefit it is put down have sought the amendment. They wish, as they say, to transfer an off-licence from a branch in one street to a branch in another street. On the face of it, that may not be an unreasonable request and I hope that it is unnecessary for me to emphasise that nothing I have to say in connection with the amendment is in the slightest degree directed against the firm concerned.
I do not, however, propose to argue the matter on the basis of whether or not it is reasonable that a particular firm should be allowed to transfer a licence from one street to another. I would mention, in passing, that the case made for that firm is by no means unusual or even exceptional. There must be dozens of licensees in Dublin alone who would like to move to what they regard as more suitable premises and letters received in my Department during the years show that there are many others outside Dublin.
The difficulty is that the amendment cuts right across the principles that have been followed in the Licensing Acts for nearly 60 years—since 1902, to be precise. The Licensing (Ireland) Act, 1902, prohibits the grant of a new licence—either on-licence or off-licence—in an urban area, even in substitution for an existing licence attached to another premises, except where there has been a 25 per cent. increase in population in the parish concerned. There is an exception for hotels and one or two other special cases that do not affect the general picture.
The result of this is that for nearly 60 years now existing licensed premises in urban areas have had what amounts to a statutory protection against any new competition in the vicinity. In the central Dublin area, that protection has been absolute, as it is only in certain suburban areas that the necessary increase in population has taken place. Inevitably, of course, all licensed premises thus acquired a certain monopoly value and premises have changed hands during the years at prices that reflected that position. Furthermore, the various Licensing Acts passed since 1902 have recognised and taken account of this fact and of the equities thus created. In these circumstances, to alter the law now, except for some serious reason connected with the public interest, would be a breach of faith with existing licensees.
What we have to ask ourselves is this: Does the public interest require that this amendment be made? I think it is evident that it does not and that if it did, the amendment would not be expressed to be limited in operation to a period of one year. If the amendment were justified for a year, it would be justified as a permanent amendment. I know, of course, that a precedent for an amendment limited to a year has been mentioned in some of the representations made to Deputies.
That was in the Intoxicating Liquor Act, 1927, when holders of on-licences were given the option of converting them to off-licences within 12 months. At this stage, over 30 years afterwards, it is very hard to see why that amendment was limited to a year, since it could not adversely affect anybody's interests, except, perhaps, the Exchequer which would collect less duty from the off-licence, and, as one might have expected, the amendment was re-enacted in permanent form in 1943. That provision, therefore, is in no way comparable with what is now proposed.
This amendment could involve a very serious interference with existing equities and there is no case whatsoever for it, other than the convenience of a particular firm. As I said earlier, there are several other firms that could make much the same case. It really comes down to the fact that we are here to legislate in the general interest and we cannot, or at any rate, we ought not, to depart from general principles merely to benefit individual persons or firms.
Of course, we should not legislate for individual persons or firms. The circumstances in which one firm, as the Minister told us, found itself are also the circumstances in which other firms find themselves. It just happens that if one person draws the circumstances to the attention of a Deputy, the circumstances that apply to one person also apply to many other people.
So far as the form of the amendment is concerned, it is specifically designed to cover everybody who would be so concerned and not the one firm alone. The Minister, if he looks at the amendment, must realise that it is an amendment general in type and not for any specific person. Frankly, the reasons I put in the year was the provision in the 1927 Act and also that I think there is a certain desirability in having an off-licence—I would not make the same case for an on-licence —fixed geographically for periods at a time. I do not think it desirable to have it changed from year to year. There does come a time now and again when premises become unsuitable and having regard to the provisions of the Acts introduced to bring shops up to standard, quite apart from the particular firm, I can see an very definite case for changing an off-licence.
Let me make one case to the Minister which is entirely unconnected with this. Let us assume you have an off-licence in a corner shop and it is desired to widen that corner. It would be desirable in those circumstances, not for the licensee to have power, but for the court to have the power—and it should be the court alone—to transfer an off-licence to the adjoining premises which were being taken away for street-widening purposes.
Although I cannot altogether agree with the amendment, it has been but down. I think it is definitely accepted that off-licences are required mainly in central shopping areas. Unfortunately, these central shopping areas are most unlikely to show an increase in population since the basic date of 1902. In fact, in view of Corporation planning and house planning programmes, it is more than likely that they will all share a decrease of population. There are also, as a result of this and as a result of the changes in the various bus routes and bus stops, shifts in the shopping habits of the people. Some streets which were very prosperous business streets have now become very poor business streets and properties have deteriorated in value, even premises other than off-licence premises.
I have one street in mind in which there are two off-licence premises. They are competing with each other to see which can sell the cheapest and spirits are being sold there practically at wholesale price. That is simply because the Corporation has moved a great many of the population away from that shopping area to outlying areas. Now the tendency is starting to reverse and the central city area is being rebuilt. Even still, the new families who are brought into the Corporation schemes are fewer than the families taken out. Each time the Corporation takes over a street and erects new flats, fewer people go into the flats than were in the street originally.
This is a very desirable thing and we approve of it but it means that equities established in 1902 cannot reasonably be said to apply to-day. I believe some opening should be left, to the High Court rather than the Circuit Court, whereby people seriously affected as a result of Government policy of shifting populations, can apply to have the court consider the merits of their case. I consider the value of off-licensed premises in Grafton Street went up considerably when the buses started to travel down that street, whereas in Camden Street and Capel Street, they have deteriorated according as people were rehoused out of these areas. I think the Minister should look at the equities from this point of view, to see if there should not be some opening and not say, once and for all, that we shall not allow any off-licence premises to be transferred unless there has been the necessary increase in population since 1902. On that basis, we are not ensuring equity at all.
In reply to Deputy Lemass as well as to Deputy Sweetman, we cannot act merely in an individual case.
Nobody is asking the Minister to do that.
I am referring only to general equities.
Amendment, by leave, withdrawn.
Section 23 agreed to.
SECTION 24.
Question proposed: "That Section 24 stand part of the Bill."
There might be a good deal more in this than meets the eye. On Second Reading, I pointed out that there should be a very definite minimum standard of sanitation and other points in regard to public houses and I am not in any way withdrawing that view. The object of this section is to enable the local health authority, in whose area the public house is situated, to object to the renewal of the licence in respect of any premises which they consider do not meet the requirements of the Act. A problem might possibly arise here in regard to the acquisition by, for instance, six-day licence holders of seven-day licences.
There are quite a number of premises now in a rather dilapidated condition scattered throughout the country. The licence duty continues to be paid and no objection is made, although in some instances premises have ceased to carry on the business of a public house and carry on a different one; in others, they are not carrying on any business at all. Now, in regard to those in which some type of business is being carried on, they do not enter into this section but the others do, and if somebody vacates his premises and it becomes slightly dilapidated, he might still like to retain the licence as a saleable asset. If the health authorities come along in 12 months' time, when the premises have become dilapidated, and go into court, I do not see how the court could reasonably reject their objection to the renewal. It would be quite clear at that stage that the premises would not be suitable. In other words, this section could be used drastically to reduce the number of licences available.
While I said at the beginning I am most anxious that public houses should be obliged to reach certain minimum standards from the health point of view, I hope this section will not be used in the manner in which I suggest it could be used, and in that way to achieve a reduction in the premises and, in effect, a reduction of the market open to potential purchasers who are desirous of converting their premises from six-day to seven-day licensed premises.
The position is that an objection could already be taken by certain people under the law as it stood. The particular provision contained in Section 24 was recommended by the Commission and is to be read in conjunction with another recommendation by the Commission in regard to unfitness of premises which is being given effect to in Section 25. Under the law, the local health authority was not entitled to object and Section 24 now allows them to object. Under the existing law, the people at present entitled to object to the granting of the new licence are a district justice, a superintendent of the Garda or any inhabitant of the parish in which the premises are situated.
This recommendation of the Commission is just bringing us up to what is necessary in modern practice and I think it is reasonable that the health authority should have these powers. After all, the health authority are now provided with power to object to the granting of dance hall licences on the grounds of unsuitability of sanitary facilities and so on. I think the possible answer to Deputy S. Flanagan's fears is the fact that if this section were operated in any unreasonable way by the health authority, I could immediately visualise the county councillors having something to say on the matter.
I should like to say that when this matter was discussed by the Commission, I felt I could not support the recommendation of the Commission. It was among the points I disagreed with because I feel the health authorities already have sufficient power to take action against licensees in regard to hygiene on the premises. There are sufficient people supervising the publican now without adding the local authority in another capacity. There is nothing to prevent the local authority through its health inspectors ensuring that a proper standard of hygiene is maintained or brought into operation on the premises and the power exists in the Health Acts to do this at present. This new section will add to the existing power in the hands of the local authority and allow them to go into court and actually object to the public-can obtaining a licence.
I think that is going a little bit too far. Various local authorities will interpret this section to suit themselves and their own localities and what would be reasonable in one local authority might not be held to be reasonable in the next local authority. If a certain local authority had an over-all majority of a political Party they could make it very "hot" for their political opponents who might happen to be publicans. I do not suggest that is going to happen but the position is, as the Minister himself said, that it could happen that a local county council would be in a position to move and object if there is close supervision. The same authority could insist on close supervision. I do not think it is necessary to give this power to the local authorities in addition to that which they have already.
I think it is far more reasonable to provide for this objection than for the objection of a local resident. I believe the Deputy's knowledge of rural Ireland, although I suppose I should not say it, would indicate that conditions in some of the licensed premises leave very much to be desired from this point of view. Personally, I feel that in the interests of all concerned it is desirable that this power should be there. I do not share the fears expressed by Deputy Flanagan that it would be wielded in any unreasonable way. Deputies should realise that we have these powers now as the law of the land in respect of all kinds of business, grocery shops, butchers' shops and all types of mixed businesses, and I see no reason why the same law should not be applied at least in principle to publichouses.
I agree with the Minister and I disagree with Deputy McQuillan about the desirability of having this section inserted and this power given to the health authorities. I think it is necessary and desirable but I have the greatest fear about the manner in which the section could be implemented by the health authorities.
I shall give one or two examples to illustrate exactly what I mean. There is hardly a town in Ireland where there is not at least one licensed premises which now is, and which perhaps has been for a year or two, closed up, the owner having gone away. Really, the only asset that person has is possession of a licence which continues in operation. Were the health authority to come along on the application for renewal and object, the court would have no option but to uphold the objection because quite clearly the premises is not fit for use as a public-house. The fact is that it has not been used as a publichouse but that would not be a valid objection, the section being what it is.
Secondly, there are certain people, elderly perhaps, and living alone, who are carrying on a very small business selling an odd bottle of shout here and there, in rather dilapidated premises. If the health authority were to object to some of these I think there is no doubt that the renewal would be refused. I ask the Minister to look into this matter with a view to giving some guarantee or loophole to these people. For instance, if a premises is licensed, vacant and dilapidated, notice could be served on the owner to the effect that in, say, twelve months, an application for renewal would be opposed. In the case of a person in the second class, a notice could be served on him—again not sprung on him in court—giving him twelve months to comply because he would certainly need that period before he would be able to put his premises in any reasonable condition. He simply would not have the money to do it otherwise. Giving the power, having inserted the necessary safeguard against abuse or excessive use of it, is one thing and just giving the power is another. I should like serious consideration to be given to what I have said.
I should like to raise one point in regard to Dublin city. I think either the Health Authority in Dublin or the Minister for Health in consultation with the Health Authority should lay down certain specific requirements so far as the licensing of premises is concerned from this point of view. I see the difficulty of different health inspectors with different interpretations of what they are meant to do. We have seen that happen in other matters in connection with the Health Department. Perhaps the Minister will consider having some sort of basic requirement. In particular, I have this in mind in regard to the bottling departments in publichouses, having stout bins properly cleaned, washing of glasses and care of toilets and so on.
I agree with this section but I have a slight fear as to how it will be implemented. I agree with Deputy S. Flanagan that a certain period should be allowed to a licensee to effect whatever repairs are suggested by the health inspector. I would not be terribly concerned about the city of Dublin, as Deputy Lemass mentioned, as regards bottling stores because the health authorities are on the war-path—and have been for some years—in relation to these. I would be more concerned about toilet accommodation in licensed houses. I suggest to the Minister that the conditions that obtain in rural parts of Ireland are appalling but I should also like the Minister to consider the financial position of the licensee in these cases because the improvements to be carried out would cost a good amount of money.
I know that an ordinary notice would be served on a publican in such a case but as soon as the health inspector discovered that the toilet facilities were not quite adequate, at the next licensing court he would go in and object to the licence. Then, if the health authority in those circumstances objected to the licence, the justice could refuse to renew the licence.
I think a period of one or two years might be allowed in certain exceptional circumstances to give the licensee time to effect whatever improvements might be suggested by the health authority inspector. I would not have quite the same fears that Deputy McQuillan has in this matter. This provision merely gives the health authority the right to object to the renewal of the licence. There is a higher authority who will decide whether or not the licence should be granted, and that will be the justice concerned.
The real answer to the fears expressed by the Deputies is that justices are reasonable men. This is an enabling section to give a statutory right to the health authority to object. It is not conferring power on the authority to be the ne plus ultra authority in the matter. I am sure the court—this has certainly been my experience under another type of legislation—will not alone give the people time, if time is necessary, but will also raise the standards gradually, step by step. All this started with the Dance Halls Act of 1935. From that time local authorities began to come into court and make certain objections, starting with the dry lavatories in rural areas. They progressed from that to Elsans and they have now reached the stage generally throughout the country in which water closets must be provided in these places. All that took many years. It involved considerable expenditure in some instances on the part of the applicant. The courts are not unreasonable and I have no doubt that in endeavouring to get licensees up to the standards expected in this day and age district justices will give reasonable time if anything in the nature of substantial alteration or a new structure is involved.
District justices also invariably take into account the cost to the applicant and the circumstances of the applicant. I think there is full protection. The answer to the fears expressed by Deputies is that we have reasonable men administering the law. They will not make impossible demands. I do not know if Deputies have looked at Section 25 dealing with unfitness of premises. It is stated in that section:
"An objection under this section shall not be entertained by the Court unless notice in writing of the intention to make the objection together with particulars in writing of the unfitness alleged is given not less than 12 months before the hearing of the application to the person who, at the time of the giving of the notice, holds the licence in respect of which the application is brought."
There is provision there for 12 months' notice. It is quite obvious to me that that will be the practice under this Bill when it becomes law. It will be the practice adopted by any reasonable Court.
Would the Minister have Section 24 amended accordingly?
I do not feel that is necessary at the moment. I shall look into the points that have been made between now and the Report Stage, but I do not think any amendment is necessary.
Question put and agreed to.
Sections 25 to 27, inclusive, agreed to.
SECTION 28.
Question proposed: "That Section 28 stand part of the Bill."
Mr. Ryan
My opposition to this section arises out of a concern for the consumer. It appears to me that publicans would under this section be allowed to sell whiskey of a lower strength than is now available. I feel it is unlikely there will be any corresponding reduction in the price. Since I recorded my opposition, however, those who know more about whiskey than I do have informed me that we are not the race of men we once were. Apparently, we can no longer take the "hard tack" the hard way as our ancestors did. The modern trend, whether it arises out of fear or physical inability, is to go for a whiskey of a lower strength. As a nation, we are in the undignified position of finding ourselves having to imitate the Scot, and it was our ancestors who taught the Scottish people how to make whiskey.
I have been told that Fíor-Ghaela to-day, particularly those who drive motor cars, are tending to consume whiskey of a lower strength. However, I thought it desirable to record opposition to enable the Minister to make his case for the section. I know the members of the Liquor Commission accepted the arguments put to them that whiskey ought not to be sold at 30º under proof. In view of the wide public interest in the matter I thought it desirable that the full case should be put before the people before the section is passed. If the Minister does that, I shall be prepared to withdraw my opposition.
This section is simply designed to obviate the necessity of a publican hanging up in his bar a notice that the whiskey sold in his premises could be under 24º. Hitherto you could sell Scotch at 30º u.p. If you sold Scotch by the glass and not by the bottle you had to hang up that notice. You also had to hang up a special notice if you sold Irish whiskey 30º u.p. This enables the publican to sell Scotch and Irish on an equal basis. Is that not so?
Under Section 6 of the Sale of Food and Drugs Act, 1875, it is an offence to sell to a purchaser any article of food or any drug which is not of the nature, substance and quality of the article demanded. The essence of the offence is that the sale must be made to the purchaser without notice and, if a purchaser is properly put on notice by the seller that the article, as sold, is not precisely as ordered then, of course, there is no offence under the section. Under the provision it would be an offence, therefore, to sell spirits diluted to any extent unless the purchaser was put on notice. By an Act of 1879, however, it was provided that notice need not be given to the purchaser where the dilution consisted of the addition of water only and did not make the spirits weaker than 25º u.p., in the case of whiskey, brandy or rum, or 35º u.p., in the case of gin. In other words, from 1879 onwards, the sale of whiskey, brandy and rum at a strength of 25º u.p., has been legal without special notice to the customers. I do not profess to know at what strength these spirits were normally marketed at that time, 1879, but it is a reasonable inference that many of them were marketed at 25º u.p., that this was commonly known and that there was no reason why a special notice of the strength should have been given once the spirits were at least of a strength of 25º u.p. The purpose of Section 28 is to alter the standards set by the 1879 Act from 25 u.p. to 30 u.p. In other words, to provide that notice need not in future be given to the customers so long as the spirit sold is at least of strength 30 u.p. which, I need hardly say, is weaker than 25 u.p. I have a note here which tells me all about the meaning of proof.
The Minister does not know what he is missing if he is depending on the note to tell him.
I am satisfied that the customer will be protected. It is reducing the strength, so that if the Deputy drinks a little more whiskey, it will not have any more effect on him than what he has been drinking.
The section is a very useful one. Unfortunately, since we took away from the Garda the duties of food and frug inspectors, I am afraid the section is no longer being enforced. Local authorities have not the same interest in it and have not appointed any individuals to take the place of the Gardaí who were food and drug inspectors. The Minister should endeavour to go back to the old system and not only have the section actually written but enforced as well.
It appears to me that they have a republic of their own up in county Donegal. This section will be very much of an ease of the very rigid enforcement of the Food and Drugs Acts under Mayo County Council. This obviously is the nuisance section under which all traders who do not display this notice have to face prosecution in the district court. If that is not the Deputy's experience in Donegal, certainly it is the widespread experience in Mayo. I am quite sure this was the position the Commission had in mind when making their recommendation.
The correct history of this is as follows. Originally, nobody hung up a notice about 30 u.p. but as the consumption of Scotch whisky increased, all of which is bottled at 30 u.p., the production of this notice became an essential. You had to hang it up if you were selling whisky, other than in a sealed bottle, under 25 u.p. But we ought not to pass the section without realising that the universal practice of the trade has been to sell a certain type of Irish whiskey at 24 u.p., a certain type at 25 u.p. and all types of Scotch at 30 u.p. This section now makes it practicable and lawful, without notice, to reduce the proof of all Irish whiskey to 30 u.p. You could not do that heretofore without hanging up your notice.
As a matter of fact, any public house in which Scotch whiskey was sold on draught, so to speak, had to hang up this notice and was free to sell Irish whiskey at the lower proof. It will not now be necessary to hang up the notice any longer. Everyone can sell whiskey at 30 u.p. The truth is, of course, that if you hung up the notice heretofore, you could sell Irish whiskey or Scotch whiskey at 30 u.p., but the practice was to sell Irish at 25 u.p. and Scotch at 30 u.p. Now, without hanging up any notice, it is lawful to sell either at 30 u.p.
The truth is that many innocent publicans who were not well up in the Act had their reputations taken away and were slandered by prosecutions which were understood by the ordinary public to mean——
They were watering their whiskey.
——they were playing puck with their whiskey.
Question put and agreed to.
NEW SECTION.
I move amendment No. 53 (a):
Before section 29 to insert a new section as follows:—
"(1) Section 22 of the Intoxicating Liquor Act, 1927, shall apply in regard to the inspection of clubs by any member of the Garda Síochána.
(2) Section 25 of the Intoxicating Liquor (General) Act, 1924 is hereby repealed."
If this new section were inserted, it would affect Section 29. Consequently, I should prefer that a discussion on amendment 54 would be in order as well.
I think the House could discuss Section 29 and the two amendments all together.
If the House is agreeable.
Yes.
That means that Section 29 and amendment 53 (a) and amendment 54 will be discussed together.
Amendment No. 54 in the name of Deputy McGilligan reads:
In page 17, lines 8 and 9, to delete ‘substitution in subsection (1) of "member" for "officer"' and substitute ‘deletion in subsection (1) of "not being below the rank of Inspector" and the insertion in the said subsection (1) and in subsection (2) of the word "inspectors" before the word "sergeants" and the insertion in subsection (3) of the word "inspector" before the word "sergeant".'
The purpose of this amendment is to restore the minimum rank at which a member of the Garda Síochána can act in pursuance of the searching of a club. Heretofore, the law provided that in fact nobody below the rank of, I think, a superintendent could take responsibility for this action. The proposed wording of this Bill would appear to make it possible for an officer of the rank of inspector to take the initiative in this matter. We think that a commissioned officer of the Garda should be the appropriate rank to discharge the duties envisaged in the section to which this amendment refers and accordingly we thought it right to bring the matter to the attention of the House in the form of this amendment.
I think we are opposing Section 29 on different grounds. My amendment seeks to ensure that the same law will apply to clubs as applies to public houses and that the rank of the officer or member of the Garda Síochána who would be entitled to inspect a public house would be sufficiently high to inspect a club. An ordinary member of the Garda Síochána can raid or investigate an ordinary licensed premises but it takes either an inspector, or a written permit from an inspector, before an investigation or raid can be carried out on a club premises. The Commission, which has been quoted here so often by the Minister in support of a number of sections, were very clear in their minds in connection with this privilege afforded to those people who are wealthy enough to be members of various clubs.
The Commission, with the exception of two individuals, reported that they could see no justification for distinguishing between clubs and public houses. I would refer the Minister to page 13 of the Report of the Commission which states:
Testimony was offered to us that disregard for the hours and conditions of sale of drink was a feature of some clubs and, while there was not sufficient evidence before us to determine whether this abuse was general, we were satisfied that the abuse existed, and we had particular evidence in one case where the huge turnover in bar receipts indicated that the main function of the club would appear to be the supply of intoxicating liquor.
The 1925 Commission recommended that the hours of sale in clubs should be kept the same as in public-houses and we see no reason to depart from that recommendation.
They went on to say:—
"Nor do we see any justification for distinguishing between clubs and public-houses or hotels in the matter of supervision and we recommend that clubs be subject to the same methods of inspection as licensed premises.
I do not see any reason in the world why there should be one law for the wealthy and another for the poor, as far as having a drink is concerned, and the idea of providing something special for the snobocracy is deplorably in disregard of the ordinary amenities which should be available to all sections, irrespective of their standing in the community. I shall not bore the House with the history of how this segregation began, but it should be sufficient to say that this division with regard to the powers to be exercised in relation to the inspection of ordinary licensed premises and clubs stems from the Licensing Acts of 1872 and 1874. At that time a constable, as he was then described, was entitled to raid public-houses but, from then on, clubs could not be raided by the ordinary rank and file of the police force.
The idea was that in the clubs you had the gentry and the gentry could not, under any circumstances, be put on the same basis as ordinary citizens. It would be a shocking state of affairs if policeman McGuire or policeman Murphy were able to walk into a club where Lieut.-Col. So-and-So was having his ball of malt after hours and charge him with a breach of the licensing laws. That is only one aspect of the matter.
One striking thing emerges from the sections which still deal with this in previous Acts. In the 1924 Intoxicating Liquor Act we have the provision in subsection (3) of Section 25 that:
In the event of any person or persons found in such premises refusing to give their respective names and addresses when requested by any such sergeant, constable, or guard or giving false names and addresses, such person or persons so doing shall be liable severally on summary conviction to a fine not exceeding ten pounds.
Does the section not do what the Deputy wants?
No. The word "member" is taken into consideration.
According to the 1927 Act, a member means a member of the Garda Síochána not below the rank of inspector.
Is that the purpose of this section too?
When the Commission strongly urged that Gardaí and sergeants should be in a position to raid clubs we felt that Section 29 met the wishes of the Commission, but Section 29 was completely misleading because it substituted "member" for "officer", but the rank is that of inspector and not lower. If the word "member" meant an ordinary member of the Garda Síochána there would be no need for me to put down this amendment, and it was just by luck that I hit upon it at the last moment before matters had gone too far.
In the section dealing with powers to raid public-houses, Section 22, subsection (2) of the 1927 Act, states:
Any member of the Garda Síochána may arrest without warrant any person who, on his name and address or such corroborative evidence as aforesaid being lawfully demanded of him under this section, fails or refuses to give such name and address or either of them or such evidence.
A Garda is entitled to arrest a man in a public-house for failing to give his name and address but no such power exists with regard to clubs. In the section in the 1924 Act which deals with clubs it merely states that if there is failure to give names and addresses the persons concerned can be liable to a fine not exceeding £10, but the officer making the raid has no power to make an arrest of any individual who fails to obey the law whereas, in the ordinary public house, Joe Soap can be taken out by the ear by a Garda and arrested for failing to disclose his name and address. If that is not showing a differentiation between the various citizens of this State I do not know what is.
I would suggest to the Minister that one way of dealing with this is by accepting the new section which I propose here, which merely brings into operation in respect of clubs the same provision as applies to licensed premises.
I cannot understand how Deputy McQuillan cannot see a very basic difference between a club and an ordinary licensed premises. The licensed premises is a business established for the sale of drink for the purpose of making a profit. A club, on the other hand, is not solely for wealthy people. I cannot recall the word Deputy McQuillan used.
Snobocracy.
There are several working men's clubs, soccer clubs, football clubs and other clubs all over the city. The most usual feature about them is that most of them are up to their ears in debt to their banks. In fact, even the Catholic Commercial Club this year—which I do not think is full of snobs—was forced to increase its members' fees considerably. A club is the next nearest thing to the home. People subscribe a fee to the club and support its activities. There are several fund-raising activities in order to run a soccer team, promote some other form of sport or just for the sake of having a social amenity and meeting place. The members, in fact, own any drink that is on the property. They are shareholders in that intoxicating liquor. As such, they should be given more consideration than the ordinary licensed publican who is in business for profit. There is adequate protection against abuse. They can be raided. It is most desirable that there should be recognition of their special position.
For that reason, I certainly cannot support the views of Deputy McQuillan and I am more prepared to go along with Deputy Ryan, to leave the position as it was heretofore. I think the Minister should consider the very special position of the club. However, since Deputy McQuillan has spoken, I am quite satisfied with the section as it stands if "member" means inspector. I take it the Minister will deal with that point and if this word "member" does mean the rank of inspector, then, of course, the section is perfectly satisfactory to my mind.
Are not all the names on the register?
I think Deputy McQuillan has missed the point. A guard, as he says, may arrest Joe Soap for refusing to give his name in a seven-day licensed premises but in a club every person knows who the person on the premises is because, first of all, he must be a member and if he is a member he is known by everybody and, secondly, if he is not a member, he must be introduced by a member and must sign the visitors' book.
That is the point.
All the inspector need do is to check the book and he finds out who the person is. I am in full agreement with Deputy Lemass and with Deputy Dillon who has said that the club should not be subject to a raid by every Guard on patrol simply because his curiosity may get the better of him. He has a method of checking any hour of the day by looking up the register and seeing who is there, if they are members and, if not members, by whom they were introduced. Deputy Lemass is quite right. A club is somewhat similar to the home and one would not like to have a Guard dropping into the house at every moment of the night and asking one to account for all the visitors to one's house, particularly when they are usually partaking of hospitality, and they would be in a case such as this partaking of the hospitality of the members of the club because no profit, as Deputy Lemass has pointed out, or very little profit other than a marginal one, is made.
I think the Legislature, in its wisdom, was very correct in confining the right of entry to a club to an officer of a certain rank but I should like to hear the Minister confirm that "member" means no person of a rank less than inspector.
You will find it does.
I should like to have confirmation.
I completely disagree with the opinions expressed by Deputy O'Donnell and Deputy Lemass and Deputy McGilligan who has put down this amendment. First of all, Deputy Lemass suggests that in a club the drink belongs to the club member and he is in his home. Why is he subject to licensing laws at all if it is his own drink and if he is in his own home? It must be considered that if the person to raid a club must be a person with at least the rank of inspector, the number of clubs in certain police districts is so great that there would not be sufficient inspectors to go round.
I do not see why the member of a club who is a member of the drinking fraternity should not be subject to the same police supervision as the customer in an ordinary public house. The purpose of this Bill was to create uniformity in the licensed trade. Three things govern uniformity—trading hours, supervision and licence fee. The clubs get away with a very nominal licence fee whereas the public house which is competing against it, down the road, is paying top wages, which the clubs are not, and paying top licence fee. Therefore, to my mind, Deputy McQuillan's amendment is a very, very good amendment. In my view, all the people who want to partake of intoxicating liquor should be subject to the same police supervision.
Mr. Ryan
I must say at the outset that I have misled Deputy Lemass just as the particular drafting of the Bill itself has misled me. This section as it is worded is a classic example of the drafting to which Deputy Dillon, the Leader of the Opposition, has already taken exception to-day. At the time I was considering this Bill I had not before me the precise terms of the Act of 1924 but I was speaking from recollection, from my experience as a lawyer, in relation to the Intoxicating Liquor Act. I was not in the fortunate position of having before me an opinion of the Attorney General as to the meaning of the Act, which is not on record, and the section as it goes down on paper is full of so many brackets and substitutions in relation to subsections which are again in brackets, inverted commas and otherwise, that one would need the time that only civil servants can afford for consideration of a Bill of this kind in order clearly to understand the section. Despite all that has been said, written and recorded, Deputy O'Donnell is apparently still in some doubt as to the precise effect of the section as drafted.
The precise effect of the section as drafted is to permit any member of the Garda Síochána not below the rank of inspector to issue a warrant for the search and inspection of clubs but I am of the same opinion as Deputy McQuillan and Deputy Belton that there should be no distinction between the searching and inspection of clubs and the searching and inspection of other premises which have liquor licences. I take my stand from experience. I very frequently pass two clubs in the City of Dublin at a late hour of the night on my way home, outside of which there may be anything from 12 to 20 cars, some of which are there long after even the bona fide houses close.
Under Section 25 of the Intoxicating Liquor Act, 1924, any officer of the Dublin Metropolitan Police or of the Garda Síochána who is of the opinion that there is reasonable ground for supposing that a club is committing an offence may issue a warrant. If the presence of 12 or 20 cars at 1 a.m. or 2 a.m. is not reasonable ground for supposing there is a commission of an offence, I cannot imagine what the judges would consider a reasonable ground.
I believe that if there is that reasonable ground for supposing that there is a commission of an offence such as the presence of a large number of cars in the concourse outside a golf club or out on the public street or if there are sounds of hilarity, laughter and jollification coming across the night air, it is desirable that an ordinary Guard on the beat might make his presence felt, come in and inspect the club and prosecute those found committing breaches of the law, irrespective of whether or not the club is solvent or not solvent, irrespective of whether the main objects of the club are sporting, religious or commercial.
The whole purpose of this Bill is to impose uniformity. Against the very clearly stated wishes of Deputies in different parts of the country, the Minister and the Government have ploughed on indiscriminately insisting on this principle of uniformity but here, for some strange reason in relation to this item, we are conferring privileges on that relatively small section of the people who may belong to clubs which hold liquor licences. I believe that is very bad. I might say that at one time I was of opinion that it was not desirable that noncommissioned officers of the Garda Siochana should be raiding clubs because so many clubs were in off the public highway there was a possibility that a Guard, as soon as he went into a clubhouse would be persuaded by the members to overlook the fact that a breach of the licensing laws was taking place, that he would be given a few "jorums", and there would be no more about it. However, I think that fear of mine was imaginary and not within reason, as with the men we have in the force at the present time there is not that likelihood.
I would not agree completely with the wording of Deputy McQuillan's amendment because I believe it would allow Guards to inspect clubs without having a reasonable suspicion that the law was being broken. I do not think that desirable because they could easily pester a club. I appreciate the point that Deputy Lemass and Deputy O'Donnell were making that a club is a private institution and should not be raided without a reason. However, if it is known to the Guards that people leave club premises at a late hour of the night long after public houses are supposed to be closed and if the Guards can see with their own eyes a large number of cars outside a licensed premises, they should be able to inspect that building without having to return to the station to get a warrant from an inspector or a superintendent.
I am in agreement with the views expressed by Deputy Lemass and Deputy O'Donnell but I am in disagreement with the views expressed by Deputy Ryan and Deputy Belton. There has been a bit of mixed thinking involved in this amendment proposed by Deputy McQuillan. Reference has been made to the section as it stands conferring privileges on clubs. I do not think that is so. I think the section as it stands and the earlier provisions in the licensing code merely recognise a difference which is there already. There is a vast difference between a public house, that is, a business in which the owner engages in the sale of drink to the public, and a club. A club is an institution in which a number of people band themselves together jointly to own and run a building and own and dispose of whatever stock of drink may be in it. It is a private concern of the members and it is not in any sense an enterprise in which drink is sold to the public.
The licensing provision have always recognised the distinction between a public house and a private club and there is no question of "snobocracy." It would be quite intolerable if any Guard on the beat, for whatever idea might come into his head, had the right and authority to go into a club and raid it. When the term "club" is used I suppose one is inclined to think of golf clubs, tennis clubs and clubs in which persons who enjoy a large income spend their leisure hours. As Deputy Lemass very correctly pointed out, the vast majority of clubs in the city are clubs in which ordinary working people have banded together. I have been for many years a member of a club not very far from this building which would, under no circumstances, qualify for the definition used by Deputy McQuillan.
That is not the Kildare Street club?
Indeed it is not, but I know well the members of that club would very much recent the fact that a Guard on the beat outside could raid their premises, invade their privacy and treat them as if they were persons in a public house. They are not in a public house. They are in premises which they own jointly and they are exercising their ordinary rights of property.
The provisions as they stand are proper provisions and recognise the essential difference between the law applicable to public houses and the law applicable to clubs, and I see no reason why they should be changed. The fact that in order to inspect or raid a club a member of the Garda Síochána must seek the authority of, and act through, a senior officers is a very desirable provision. I have little doubt that it has not been abused. It has worked well in the past and I see no reason why it should be changed.
This is a case of much ado about nothing. This is the existing law. Deputy McQuillan has created the impression in the minds of members of the House that the Government were endeavouring to deceive them in some manner or other by the use of the words which are contained in the section. In the explanatory memorandum issued with the Bill it is stated in the clearest possible language that the reason we had to put in a Government amendment was that in the 1924 Act the word "Officer" is used and this is probably news to members of the House; I myself was, until I went into the Department of Justice of the firm belief that an inspector was an officer—an inspector is not an officer of the Garda Síochána. Therefore, we have to use the word "member" in order to exclude an inspector so that a warrant can be secured from an inspector.
If any person thinks that something untoward is happening in a club, all he has to do is to inform an officer, who will be a member of the Garda Síochána, that something undesirable is happening in that club, and the officer of the Garda Síochána, or an inspector, who is now included, can issue a warrant and a Garda can go in and search the premises. I think it would be highly undesirable for a Garda to go indiscriminately into what is purely a private concern. He is allowed to go into a public house because a public house is a place where the public can congregate and it is run purely for profit. A club is run to provide amenities for the members and it is, I think, as private as a home. Members meet there to converse, to talk about the affairs of the day, to play games or something of that kind.
It would be highly undesirable that every Garda patrolling the street could, at will, walk in and search the premises. He can do that if Deputy McQuillan or Deputy Ryan or any other individual thinks something is going on there that should not be going on and he can have the place searched but only in the circumstances in which it should be done. There is something wrong about that. I think it is desirable that a power should be there, if it is necessary to use it, but what I want to impress on Deputy McQuillan and Deputy Ryan is that that has been in existence and has been operating since 1924 and we have not had anything in the nature of what might be described as bad reports about what has been going on.
The Commission made recommendations on it.
The Commission made many recommendations which the Government did not accept, in their wisdom or otherwise. In this case, we thought it undesirable that the same freedom should be granted to an ordinary Garda in respect of clubs as in respect of public houses.
Mr. Ryan
On Second Stage, the Minister said that when the Bill became law, it would be strictly enforced. I believe if the power of inspection of clubs were properly used, even the present limited powers, many of the objections would be removed. If we had an assertion from the Minister that those powers will be exercised as often as necessary, the strong objections of some members to this section would be removed.
It comes as a complete surprise to me to hear the views expressed by Deputies who favour this proposition. I am completely bewildered by the suggestion that there should be any difference between a Garda and an inspector. I simply do not understand it. If a person has broken the law—and that is what we are dealing with: we are dealing with laws which have been made by this House to control the operation of publichouses and clubs or whatever you like to call them; they are the licensing laws which are made here, and they must be implemented by the members of the Garda Síochána —I cannot see, for the life of me, why a Garda should not have the same right as an inspector to go in, to inspect the club and see whether or not the laws are being broken.
Deputy Lemass suggested that clubs are like private houses, that it would be wrong to have an individual Garda going in to inspect them, and that an inspector should be sent in. That does not seem to follow at all. In the case of the burglary of a private house, there is no objection to a Garda going in to see if the law is being broken, and if a burglary has, in fact, been committed. An inspector is not sent to a private house if a burglary has taken place. When a crime is suspected between two people living in a private house and it is necessary to see whether the law is being broken, we do not have to get an inspector to investgate, because it is a private house.
Obviously, that is completely absurd. It is an evasion, and an attempt to retain a privilege which was begun, the Minister said, in 1920 something or other, and Deputy McQuillan said in 1870 something or other. As the Minister said, that is the law as it stands. That is why we object to it. We object to it because it is a law which was introduced at a time when these privileges were very marked between ourselves and the aristocracy of the time. For the reasons stated by Deputy McQuillan, they felt they should not be soiled by an ordinary member of the Garda putting his hands on their shoulders and saying: "I arrest you." We are now to have the same differences in our own society in that a club member would be contaminated by being dealt with by an ordinary plain member of the public Garda. The only person who can arrest him or charge him with a breach of the law in an inspector. That is obviously and demonstrably absurd.
This suggestion that because one is a commercial undertaking and the other is run for the benefit of the members of the club can be pursued. Let us have legislation organised in this way. A taxi man runs his taxi to make money and a private motorist runs his car for pleasure. Very good. The taxi man has an accident and is arrested by a member of the Garda but the private motorist cannot be arrested by a Garda and must be arrested by an inspector. In that way, we cannot have a Garda dealing with anybody who is not engaged in a commercial undertaking, and an inspector can only touch somebody who is in a private business and does not contaminate himself by being involved in this invidious practice of making a living.
The suggestion that a Garda may pester a club is quite clearly absurd. If we have a man who is so irresponsible, why are we not worried by the fact that he might pester a pub too? Suppose he does pester a pub, let us insist in order to get a responsible type of officer, a man who will not pester a pub that only an inspector can raid a pub as well as a club.
It is obviously quite absurd that a Garda might see, as Deputy Ryan suggested, 12 or 13 cars outside a club and have to go back to the Garda station and say: "I suspect a breach of the licensing laws; I want a warrant." Why all this unnecessary fuss? Why cannot he do what he would do if he were passing a pub and saw the lights on and cars outside and say: "I believe there is a breach of the law; I will inspect in the ordinary way." I do not think this whole idea of a differential between the pub and the club is right. The pub is the poor man's club, the working man's club. He cannot afford to band together with his friends in this way and have the amenities which Deputy Lemass points out are to be found in clubs.
Deputy Lemass made another bizarre suggestion that these people should not be pestered or worried in this way because they may be up to their ears in debt and, by inference, he seemed to suggest they should be allowed to break the law to get out of debt. What about the unfortunate publican who is making a loss? Are we to give him special privileges so that he will not be worried by the Garda, and say he will be raided only by an inspector? There are so few inspectors——
I think the Deputy is under a misapprehension there. The inspector is the person who can issue a warrant but a Garda can go into the premises and carry out a raid or make an arrest, if he so desires.
I am grateful for the Minister's interruption and clarification. If that is so, all right. Let us have that for the pubs as well—let us have uniformity.
The question of public houses does not arise on this amendment which deals specifically with clubs.
The point was made by some Deputies that the law should not be the same for clubs as for pubs. The Minister introduced this legislation to establish unity in our licensing laws. Various anomalies have been discussed during the past few days— the differentiation between the country and the city, the bona fide, Sunday trading, and so on. This is another anomaly which the Minister would be well advised to remove so that pubs would be raided by inspectors as well as clubs.
The Deputy may not continue to discuss public houses now. The amendment relates to the searching of clubs by the Garda Síochána.
The suggestion that these clubs only should be raided or inspected is an attempted to retain what is manifestly class legislation. It is about time we got rid of it.
I think Deputy Dr. Browne is endavouring to misrepresent a situation when he talks about class distinction. He said that if a burglary is committed, an ordinary Guard can go into a house. That is not so; he must be invited. The ordinary Garda may not go into a Corporation park unless invited to do so by the Corporation. If an offence is committed in a public park, he may not go in unless he is invited.
By an inspector?
I am not sure of the rank—by an officer of the Corporation. I am delighted to have heard the Minister. The amendment is now very clear and satisfactory to the majority view. I can understand some publicans taking the line: "Maybe we have a slight disadvantage here but these clubs providing football pitches, handball alleys, billiard tables, card rooms, and so on, must submit to rules. They must cease the sale of intoxicating liquor at the prescribed hour. They may play billiards or a game of cards in the club until a late hour but they may not sell intoxicating liquor." I think the National Progressive Democrats are trying to work up a lot of wind about nothing. The Minister is quite right in what he said.
Deputy Lemass has suggested, with regard to parks and other such places, that an invitation would have to be issued by the responsible authority, in this case, the Dublin Corporation——
Park rangers, for instance.
——before a Garda is entitled to make an inspection where a crime is committed. It would appear that what he is aiming at is that clubs in the city and throughout the country now and again invite a member of the Garda Síochána and perhaps an inspector who wish to have a raid carried out——
Nonsense. I am simply pointing out that it is a private concern.
There is every reason to ensure that far more vigorous inspection will take place after the argument by Deputy N. Lemass that poor football clubs, working-men's clubs, and a variety of clubs made up of the poorer sections of the community need money and that the only way they can make it is through the sale of drink. Under the law, there are certain house for the sale of drink. Is it now suggested that the only way they can make money is by selling drink illegally and that they should not be allowed——
I am not suggesting that.
Ha, ha!
I can think of no other interpretation. I am afraid Deputy Lemass has not helped to shorten this debate. The Minister for Justice is a very innocent man, as far as clubs are concerned. I doubt very much if he has ever seen the inside of a club, judging by his remarks. I thought for a moment his description of a club sounded much more like a place where a branch of the Legion of Mary hold their meetings.
From my limited experience of clubs, I have found that from the official closing time onwards, until all hours they are without supervision. There would seem to be no question about that. Deputy Ryan pointed out that, on his way home, he passes one or two clubs at a late hour——
Does he always pass them?
I do not know if Deputy Haughey passes them.
Deputy Lemass is not allowed to say anything more. Deputy Haughey has told him so. Deputy Haughey was told to tell him so by Deputy Geoghegan and Deputy Geoghegan was told by the Parliamentary Secretary to the Taoiseach to tell Deputy Haughey.
Deputy Ryan pointed out that where 15 or 20 motor cars are parked outside a club at midnight, it is fair to assume that 50 per cent. of the people who own the cars are having a "jorum" on the premises after hours. The only way in which that can be established by law is through some individual inviting the inspector to come in, the inspector thinking it over very carefully and then deciding to issue a search order to a sergeant or a Garda, possibly two hours afterwards, when the birds have flown. Unquestionably you cannot——
They are not allowed in after 10 p.m.
——have proper supervision of clubs under the existing arrangement. Evidence given before the Commission was to the effect that more illegal drinking goes on in clubs than in publichouses. As a result, a number of us on the Commission felt so strongly about it that we persuaded all but two members of the Commission to agree that there was only one way to sort this out—apart from the inequality of having one law for people in a club and another law for people outside—and that was that, in order to have proper supervision, it was necessary to bring the clubs more under the control of the Garda Síochána.
I feel a slur has been cast by a number of Deputies on the ordinary member of the Garda Síochána. It was suggested it would be wrong for an ordinary member of the Garda Síochána to poke his nose, out of curiosity, into the inner sanctum of some club—that it would annoy the members of the club. They only question that arises is an offence under the licensing laws. The inspection would not be for any other purpose. It would not be for the purpose of seeing if they were playing pitch-and-toss or anything like that in one of these exclusive clubs. Some Deputies seem to have an idea that an ordinary member of the Garda Síochána is slightly——
Déclassé.
——and that he should not be allowed to move in among the gentry. The argument that there are workingmen's clubs, and so on, does not carry any weight at all. It is suggested in this House now that if a group of people band together for the purpose of having social events organised and so forth and register themselves as a club—sporting or otherwise—they are immediately outside the normal scope of the law as far as the sale of drink is concerned. That is what you are establishing. I believe that where you have drink on sale, it is not a question of the property of the members of the club. The members of the club purchase their drink. They can invite visitors in who likewise purchase.
No.
Again, not officially, as the Leader of the Opposition should well know.
Surely, a visitor to a club cannot purchase drink?
He cannot, and neither can the club sell drink after hours—officially. I doubt whether Deputy Dillon is as familiar with the working of many of the clubs in Dublin as he appears to suggest he is when he maintains that a visitor does not pay for the privilege of being allowed as a visitor. He would not pay many visits if he were to go in on such terms.
That is a very revolutionary doctrine, I must say.
I do not want to delay the House on this matter. I can assure the House that Deputy Lemass was responsible for the greatest part of the delay so far. I would ask the Minister to have another look at this. It is a recommendation that goes back even to 1925. There is no use in the Minister telling us that that is there since 1924 and that, because it has been there since then, it should remain now. There is no argument on that basis. The licensing laws have been there for many years. We have been changing them and the purpose of this measure is to change the existing regulations and improve them. We want to get rid of anomalies and introduce uniformity all round.
In the course of my remarks a few minutes ago, I omitted to mention that the Garda Síochána were consulted on this matter. They were satisfied with the power which they have. Perhaps, my omission was the cause of the debate continuing. I also mentioned the fact that this is the existing law.
Since they are not content to be tried in the District Court, would they not like to go to the Supreme Court?
If the police are satisfied, I am satisfied.
I am sure that the "Tubs of Blood" would love to go to the Supreme Court.
Amendment, by leave, withdrawn.
Amendment No. 54 not moved.
Section 29 agreed to.
I move amendment No. 55:—
Before section 30 to insert the following new section:
"(1) Section 25 (which relates to the recording of convictions on licences) of the Act of 1927 is hereby amended by—
(a) the deletion in subsection (1) of ‘if the Court in its discretion so thinks proper' (inserted by the Act of 1943) and the substitution therefore of ‘subject to subsection (4) of this section',
(b) the substitution of ‘two years' for ‘five years', ‘four years' for ‘seven years' and ‘six years' for ‘ten years' in subsection (2), and
(c) the addition to the section of the following subsection:
‘(4) Notwithstanding anything contained in subsection (1) of this section, where a person is convicted in relation to any premises in respect of which he holds a licence for the sale of intoxicating liquor by retail of an offence to which this Part of this Act applies and the conviction is the first conviction of that person in relation to those premises of an offence to which this Part of this Act applies, the conviction shall not be recorded on the licence.'
(2) Every conviction which, immediately before the passing of this Act, stood recorded under section 25 of the Act of 1927 on a licence then in force, shall, upon the passing of this Act, cease for all purposes to be so recorded and where, before the passing of this Act, the holder of a licence then on force had been convicted of an offence to which Part III of the Act of 1927 applies, such holder shall, for the purposes of subsection (2) and subsection (4) (inserted by this section) of the said section 25, be deemed never to have been so convicted."
This amendment makes provision in relation to the compulsory endorsement of a licence for each offence after the first. We have already discussed it with Amendment 31 and I need not say anything more.
Amendment agreed to.
NEW SECTION.
I move amendment No.56:—
Before section 30 to insert the following new section:
"(1) Where an order under section 9 of the Intoxicating Liquor (General) Act, 1924, prescribing the sizes of bottles in which an intoxicating liquor specified in the order may be sold is in force, neither section 28 nor section 29 of the Act of 1878 shall apply in relation to a bottle to which this section applies.
(2) The denomination of a bottle to which this section applies and a line defining its capacity shall be indicated on the bottle by indelible marks.
(3) The Minister for Industry and Commerce may make regulations in relation to bottles to which this section applies—
(a) prescribing the size and position of the line defining the capacity of the bottles,
(b) prescribing the denomination marks for the bottles, their sizes and their positions on the bottles,
(c) prescribing the limits of error to be allowed in relation to the capacity of the bottles as defined by the line aforesaid,
(d) prohibiting any feature in the design of the bottles which appears likely to facilitate the perpetration of fraud.
(4) Where in relation to a bottle to which this section applies there is a contravention of subsection (2) of this section or of regulations made under subsection (3) of this section, the bottle shall be deemed to be an unjust measure for the purposes of section 25 of the Act of 1878.
(5) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
(6) In this section—
‘the Act of 1878' means the Weights and Measures Act, 1878;
‘bottle to which this section applies' means a bottle which is required by an order referred to in subsection (1) of this section to be of a size prescribed thereby."
This is an amendment to replace Section 30 of the Bill by a revised section. May I say, right at the outset, that the new section as now proposed will achieve in full the object of the original section while at the same time allaying the fears of certain trade interests who expressed their satisfaction with the amendment.
As the House is aware, the object of Section 30 was to put an end to the present elaborate system of verification of the sizes of beer bottles by inspectors of weights and measures. As I explained in my reply to the Second Reading debate, the system was imposed, not as a result of a considered decision, but by what I might term a legal accident. An Order was made which required beer bottles to be one of three standard sizes. After that was done it was found that this simple provision made each bottle into a legal measure and attracted all the provisions of the Weights and Measures Acts.
I have, of course, never sought to make the case that this system was a costly one in terms of so much per bottle, or even so much per gross bottles. What I said was that it began by accident, that it is quite unnecessary and that the cost of it, irrespective of who pays for it, is for the most part wasted money. And the waste is there, however small the cost per unit may be. It is, I hope, a good principle that one should seek to dismantle controls that are unnecessary even though the gain to any one person may be negligible.
I pointed out in my reply to the Second Reading debate that the effect of Section 30 had obviously been completely misunderstood by certain trade interests who appeared to believe that the section would lead to the introduction of new sizes of bottles and would facilitate fraud by publicans. I think I can claim to have shown conclusively that these fears were unfounded.
Meanwhile, however, another aspect of the matter was brought to my notice. Here I should like to express my thanks to Deputy Dillon who wrote to me to draw my attention to it and went to the trouble of sending me some samples of bottles to show what he had in mind.
Were they full or empty?
Deputy Dillon's point which I may say was later endorsed by interested persons outside the House, was that, even though the section as introduced did not leave the way open for fraud or the deliberate introducing of non-standard bottles, there was a distinct possibility that firms handling non-standard bottles for the export trade might get some of them accidentally mixed up with the standard bottles for the home trade if there were not some marks which would readily distinguish the standard bottles from the others.
I accept that as a valid point and the amendment will meet it. The position under the amendment will be that the bottles will, as at present, have to have the size marked clearly on them. The vast majority, of course, are half-pints but pints and thirds of pints are legal as well. The bottles will also be required to have, as at present, a line showing the point to which they should be filled in order to contain the appropriate quantity. All that will be missing from the bottle as at present marketed will be the small official verification mark and the absence of this will make no obvious difference to the appearance of the bottle. The non-standard bottles do not, of course, have the size or a filling line embossed on them. It is this fact which makes them immediately distinguishable from the standard bottle.
The verification mark it at present required and imposed under Sections 28 and 29 of the Weights and Measures Act, 1878. Under subsection (1) of the amendment those sections will no longer apply to beer bottles. All the other provisions of the Weights and Measures Acts will, however, continue to apply to them, including the provisions for enforcement.
Subsection (3) of the amendment gives the Minister for Industry and Commerce power to make certain regulations. Such a power exists already and there are, in fact, regulations in force at present dealing with the various matters set out in the subsection in so far as they affect beer bottles. The authority for the making of these regulations, however, is so worded that it could not readily be adopted to apply to the new situation which the amendment will create and it had, therefore, to be re-enacted in a slightly modified form.
The amendment will, therefore, involve no upset to the bottle trade. Needless to say, all existing standard bottles will continue to be valid and, as I have explained, the markings of the size of the bottle and so on, will continue unchanged, so that there will be no interference with the manufacturing process. As I said at the outset, I understand that all the trade interests that might have an interest in this matter are satisfied with the amendments now proposed. I therefore ask the House to accept the amendment.
I understand from what the Minister says that the difficulties which did arise in connection with the original section are now substantially removed. I am glad that my collaboration, expressed in terms of three virgin bottles, has answered the matter.
Does the Minister not think that the least he might do by way of expressing his thanks to Deputy Dillon is to send back the bottles full?
I might offend against the licensing laws, if I did that.
Mr. Ryan
Am I right in saying that the net effect of the Minister's amendment is to dispense with the weights and measures inspectors who now test and verify the accuracy of bottles at source, that is, as they come off the moulds in the glass factory?
Yes.
Substantially.
Mr. Ryan
In that event, I am as much opposed to the Minister's amendment as I was to the original section and I believe the Irish people will also be when they realise what is happening. The Minister said he never made the case that there was a tremendous waste of money by reason of the existing system, but he did say in a comment which he made on Section 30, and which he circulated to the trade, that the community pay for the present system and whether they pay as taxpayers or consumers does not alter the fact that the system is wasteful and unproductive. The truth of the matter is that the present system is an absolute guarantee, an absolute assurance that when you buy a bottle of stout, you are getting half a pint. The present system means that for that guarantee every publican pays only 6/- a year. When you drink that half-pint of stout from a bottle, you are paying, for that privilege, one seven-thousandth part of what you have paid—about as little as the fluorine which is to be put into the water; less than one-tenth of a bubble of the froth of a glass of stout—and it is the intention of the Government to remove that.
The present system operates as a complete guarantee. If we remove the inspectors at the source of manufacture, the result may well be that bottles of less than the stated quantity may get on to the market. The only way of checking it will be for the Guards or the weights and measures inspectors to go into the public-houses and get a bottle and test it. Can you imagine what may happen if there is a run of 10,000 bottles which are under measure? What will happen is that these will be distributed throughout the country long before the mistake is ever discovered.
It is necessary, I think, to understand the system of manufacture of glass bottles. They are manufactured by means of moulds and, as Deputies can well imagine, a considerable amount of heat is used in relation to the manufacture of glass bottles as well as in relation to all glass.
Major de Valera
Are you sure?
Mr. Ryan
As a result of heat applied to the moulds——
Major de Valera
Are you sure?
Mr. Ryan
—— similar moulds may have a different length of life. One mould might——
Major de Valera
What is the coefficient of expansion of glass?
Mr. Ryan
——give as many as a quarter of a million accurate bottles and another mould, put on immediately afterwards, might manufacture only 10,000 accurate bottles before becoming inaccurate.
Does the manufacture of these bottles relevantly arise on this amendment?
Mr. Ryan
With respect, I think it does, because the necessity to measure bottles is what is being controlled by the section and the amendment.
It is the size of the bottle, not its manufacture.
Mr. Ryan
The position at present is that there are four weights and measures inspectors permanently in the glass bottle factory checking each and every bottle as it comes off the machine. Only when they are satisfied that it will accurately contain a half-pint, or a third of a pint, or a pint, as the case may be, is it let loose on the consuming public. If we remove that check and simply require the manufacturer to put a half-pint mark on the bottle, the danger may be that hundreds of thousands of bottles may well escape on to the market before a fault is ever discovered. I am not suggesting for one moment that there would be any intention to defraud, either on the part of the manufacturers or on the part of the wholesale distributors of bottles, but the present system guarantees there will be no mistake. Remove that and mistakes may arise.
Regarding the cost, I have already pointed out that the cost of this absolute guarantee and check is less than one seven-thousandth part of the price of a bottle of stout. The case may be made that by bringing in this, you will have four inspectors, four members of the Garda Síochána, returned to other duties and the State saved the expense of paying four inspectors and one part-time inspector. I would direct the attention of the members of this House to a Parliamentary Question which I asked on 25th February. The reply shows that over the past seven years, the total amount paid in fees was £27,000 and that the salary paid to these inspectors came only to £18,900, and that the State had made a profit of £8,162. In other words, there is no question of the existing system being an undue burden on the State's finances. In fact, they are getting a handsome return out of providing what is an absolute guarantee against bottles with a wrong measure getting on to the market.
There is another aspect of this section. As I understand the various Acts which relate to this, the manufacturers of bottles which have a wrong measure may not be prosecuted. If there is to be any prosecution, it will be against an innocent publican who buys the bottles in good faith from the wholesaler or the manufacturer. It is extremely difficult to test the difference between 16 bottles to the gallon and 17 bottles to the gallon. It cannot be done with the naked eye and in order to protect himself from prosecution, every publican would want to have a half pint or a pint measure. He would need to have the appropriate measure and to test every bottle coming in. If any duly authorised person should find that he is selling a quantity under the appropriate measure then, that innocent publican could find himself prosecuted. He would not have even the right that a shop-keeper has who sells goods which are found to be defective. If an action is taken against the shop-keeper he has a right of indemnity against the persons who supply him with the goods. That does not apply in regard to the amendment that the Minister is trying to bring in.
I am always reluctant to make comparisons between ourselves and the neighbouring island but, unfortunately, I have not had an opportunity of inquiring elsewhere to see what the state of the law is. It is pertinent to note however, that in Britain and in the northern portion of the country, which is not for the time being under our jurisdiction, they have not got the protection, the guarantee, that we have here but they are crying out for it.
It is being suggested that the amendment gets over the objection which I am voicing and which manufacturers of bottles, wholesale bottlers, and the public have previously voiced. I cannot see that it does. It simply means that the Minister for Industry and Commerce may require a mark to be put on a bottle to indentify the measure it contains but it still allows bottles of short measure to get on the market. It means that instead of the system that is operating of having four inspectors at the point of manufacture checking the bottles, you would have inspectors throughout the length and breadth of the country hounding every other publican to check whether his bottles are of the right measure. Think of the unfortunate publican whose shop is full of people drinking beer and stout when a Guard comes in and asks for a bottle, checks it and finds it is short measure.
We have been asked already this evening to agree to a section of the Bill about under-proof whiskey in order to save the unfortunate publican embarrassment. I think the embarrassment regarding under-proof whiskey would be nothing to that which would be caused in a beer or stout-selling house if the measure were found to be short. We have a system which is cheap: it costs 1/14th part of the pint of stout. I think it is a good and sound guarantee; it is a system that has worked well and a system which we would be very foolish to throw aside.
I do not know if there is any necessity to deal in extenso with this matter. It was obviously very wasteful to spend £27,000 in one case and even more——
Mr. Ryan
In seven years.
And it is a waste of time for the Gardaí to sit down looking at bottles for no apparent purpose.
Empty bottles.
There might be some reason for it is the bottles were not empty. The manufacturers are satisfied with this, the public are satisfied and the trade unions are satisfied. If Deputy Ryan is not satisfied that the ordinary drinker of a bottle of stout would not be "codded" for every long by short measure, by some defect in the bottle, he does not, I suggest, know the capacity of the ordinary drinker of a bottle of stout to insist on getting in proper measure what he demands. I do not think there is any substance in Deputy Ryan's argument. The former system was a waste of effort in the first instance and I think that is the reason all the interests concerned are satisfied that it should go.
May I interpose a word? Am I to understand that the effect of the Minister's proposed amendment is substantially to maintain the situation in which the pint, the half-pint and the one-third pint bottle will remain a marked bottle with a line on it indicating the correct measure to be filled and that it will be an offence to sell beer or stout in a bottle not so marked?
It must be filled up to the mark.
And it is an offence to sell beer or stout in a bottle not so marked, that the Minister for Industry and Commerce hereafter will prescribe the capacities of the bottles and that we are simply using different machinery to produce virtually the same results? Deputy Ryan may not agree with me and he may be more discerning than I am but that is the impression I got of what is in the Minister's proposal.
Deputy Ryan does raise an important point. I think it should be made an offence to manufacture or sell bottles that do not conform to the specification of the Minister for Industry and Commerce. I do not think it is fair to throw the whole burden on the publican. He takes bottles from the only source from which he can get them in this country, the Irish Glass Bottle Company, and I think the Irish Glass Bottle Company should have a responsibility to see that the bottle itself conforms to the Minister's requirement. Is not that reasonable?
Would the Deputy not agree that it is extremely unlikely that anything would ever arise in this way? In the first place we have many interests coming into this, large firms, large bottlers and large brewers and so on. The Deputy will appreciate that they will be very concerned lest anything should be wrong in their measuring. These marks on the bottles, I assume, will soon become familiar even in the lowly country public house. I cannot visualise any of the fears of the Deputy as being likely to be justified in practical form.
I think if the Irish Glass Bottle Company allowed bottles to leave their premises without being marked they would be committing an offence. A manufacturer of a bottle would commit an offence if he sold a half-pint stout bottle that did not bear the Weights and Measures mark?
I am not quite sure that is so.
I think it is.
I am aware—and the Deputy must also be aware—that it has been the practice for stout to be sold by publicans in different types of bottles such as sherry bottles. It is a regular practice to sell it to people to take off the premises—in a form that is known in the West of Ireland as "a large one". It is generally sold in bottles such as whiskey or sherry bottles.
But that is draught stout.
But it is illegal to sell bottled stout other than in one-pint, half-pint or one-third pint bottles. It must be sold in stamped bottles. I think we all agree on that, but the question that does occur to me is that every stout bottle must be stamped. You cannot sell stout under the existing law except in a stamped bottle. I always thought it would have been illegal under the existing law for a purveyor of bottles such as the Irish Glass Bottle Company to sell stout bottles unless and until those bottles had been stamped.
It is very different if you buy a set of weights or buy a set of pewter measures. You buy them at your own hazard and you must then submit them to the weights and measures officer who will stamp them if correct and, if not, he will destroy them or indicate they are not suitable for use. You have not that option with bottles; you cannot submit a gross of bottles to a weights and measures inspector at the local Garda Station and have him stamp them. They must be stamped at the point of manufacture. I always understood that if a manufacturer issued bottles unstamped he committed an offence.
Will the Deputy not agree that it is easier for a man who is purchasing a bottle of stout to hold it up, look at it and see if the liquid is up to the mark than to have on it a mark which is stamped invariably on the bottom of the bottle?
With great respect, the Minister is obviously no publican. Every stamped bottle has a mark on it at present up to which it has to be filled in order to conform to the existing mark. These are technicalities into which we do not want to draw the Minister in case we seem to seek to trip him. I am certainly agreed with the Minister—I know Deputy Ryan is not—that the provisos he proposes here are adequate to meet the problem that I pressed upon him. But I am uneasy about one feature of the new proposals, which appears to me to release the manufacturer of bottles from an obligation which heretofore bore upon him and to move the responsibility from the shoulders of the manufacturer on to those of the publican. If heretofore, a publican bought a gross of bottles and received them with the mark upon them, that was a good defence for him if he were prosecuted by the Weights and Measures Garda because a bottle of stout sold by him did not contain half a pint. He could produce the bottle and say: "That was filled to the point specified as the correct point to which it should be filled, and it is marked with the mark; therefore, I acted in good faith." If the bottle, in fact, was not of half-pint capacity, although it was so marked, responsibility then fell on the Weights and Measures administration. It was not the fault of the publican and he had no responsibility for it.
My apprehension is that, suppose under the new rule the Irish Glass Bottle Company were to sell bottles which owing to some mistake due to innocence on their part—the mould having shrunk, as Deputy Ryan suggests, or something of that kind— provided to be below the capacity stated, and they inadvertently continued to use the mould to manufacture 20 gross of bottles out of 5,000 gross, and these bottles are sent out, the responsibility does not rest on them in law; but the unfortunate publican, into whose hands the bottles have innocently come, may be prosecuted for selling less than a half pint of stout in the bottle.
I want to make a suggestion now to the Minister. I fully appreciate this is a matter of some little complexity. Deputy Ryan has a different point from mine, and a wider point, but, in respect of my narrow point as to where the liability should rest for selling a bottle which conforms nominally with the provisions of the two new amendments but which is, in fact, deficient, that, I suggest, is a matter into which the Minister might look between now and Report Stage, examine it and see if there is substance in it. I fully appreciate Deputy Ryan's solicitude, but I do not agree with it. I think adequate provision is being made under these proposed amendments by the Minister. However, Deputy Ryan has his own point of view on that.
The Minister will look into the matter.
I am much obliged.
Amendment agreed to.
Section 30 deleted.
NEW SECTION.
Amendments Nos. 56a and 56b go together.
I move amendment No. 56a:
Before Section 31 to insert the following new section:
"(1) Intoxicating liquor shall not be sold by retail in a sealed container unless the quantity of the contents of the container is indicated on the container.
(2) A person who contravenes or permits a person under his control or in his employment to contravene subsection (1) of this section shall be guilty of an offence under this section and shall on summary conviction thereof be liable, in the case of a first offence, to a fine not exceeding ten pounds and, in the case of a second or any subsequent offence, to a fine not exceeding twenty pounds.
(3) Notwithstanding the provisions of section 8 (which prohibits certain sales of intoxicating liquor otherwise than in marked measures) of the Licensing Act, 1872, a person who sells intoxicating liquor in a sealed container on which the quantity of the contents of the container is indicated shall be deemed not to act in contravention of that section.
(4) In this section ‘container' does not include a bottle."
As has been pointed out, this amendment and amendment No. 56b go together. Section 8 of the Licensing Act, 1872, provided that intoxicating liquor when sold by retail in quantities of half a pint, or more, should be sold either in cask or in bottle, or in legal measures, and therefore makes illegal the sale of canned stout or beer. Deputies will probably have noticed that in recent years cans of stout and beer have come on the market in increasing quantities. In fact, no prosecution for the sale of these cans of beer has been brought under Section 8 of the 1872 Act, which, needless to say, was not intended to apply to canned stout. The introduction of this Bill, however, provided an opportunity to regularise the position.
Section 8 of the 1872 Act is, therefore, scheduled for repeal. Recently, it has been suggested to me that since the customer has no way of knowing how much stout or beer a can contains before he opens it, unless the quantity is stated on the label, a statement of the quantity should, for the protection of the consumer, be made a statutory requirement. That seems to be a reasonable suggestion and one which should be adopted. Hence this amendment which, taken with amendment No. 56b, allows Section 8 to stand and permits the sale of canned beer only where the quantity of the contents is stated on the can.
I understand at present most—possibly all—types of canned stout and beer sold in this country have, in fact, a statement of the contents on the label and the primary purpose of the amendment is, therefore, to guard against future omissions rather than to remove an existing abuse. The amendment does not refer explicitly to cans but to sealed containers of any type. The reason for this is that it may be possible in the future to market beer in plastic containers of some kind. Already I understand certain cordials may be bought in plastic containers. The amendments contain no provision making it an offence to have on the label a false statement of the contents. I am advised that such provision is unnecessary and that any such false representation would be an offence under the Merchandise Marks Act.
Amendment agreed to.
SECTION 31.
Question proposed: "That Section 31 stand part of the Bill."
What is this section about?
The section is self-explanatory. It explains the position.
A local authority may, if they think fit, and with the consent of the holder, cancel a certificate issued by them under Section 6, the section which provides for the issue by local authorities of certificates approving of the sites for licensed premises in substitution for licensed premises demolished by them under the Intoxicating Liquor Act, 1953, and may issue under the section another certificate declaring that a plot acquired by them, other than the site in the cancelled certificate, to be approved by them is approved by them as a licensed premises in substitution for the licensed premises which the cancelled certificate declared had been or were to be demolished.
Question put and agreed to.
SCHEDULE.
I move amendment No. 56b:
To delete:
|
35 & 36 Vic., c. 94. |
Licensing Act, 1872. |
Section 8. |
Amendment put and agreed to.
I move amendment No. 57:
To delete the matter in the third column opposite "Intoxicating Liquor Act, 1927", and to substitute "Sections 11, 15 and 16; in section 27, the words from ‘and on the hearing of such appeal' to the end of the section; sections 36 to 54; subsection (2) of section 55; section 57.".
What the amendment does it is to repeal some provisions of the Intoxicating Liquor Act, 1927, over and above those listed for repeal in the Schedule as it stands. These additional repeals are: (a) Section 11 of the 1927 Act, which is the section which allows a six-day licensee to get a seven-day licence, if he extinguishes a seven-day licence in the same or an adjoining District Court district—this section is superseded by the new section inserted by amendment 52—and, (b) part of Section 27 of the 1927 Act, which deals with the removal of endorsements by the Circuit Court on appeal. That power must, of course, go as a consequence of amendment 55 which makes endorsement compulsory. Deputy O'Donnell's amendment was taken with amendments 13 to 15, relating to Sunday evening opening, and the Chair is unlikely to allow any further discussion on that, I understand.
We shall not reopen the discussion.
My amendment to the Minister's amendment reads:
To delete "and 16" in the second line.
The amendment is designed to retain the powers of a district justice to grant an area exemption order on a Sunday. My reason for moving this amendment is that in rural Ireland, there are certain districts——
I do not like to interrupt the Deputy, but surely we discussed this matter already?
With great respect, Sir, what we discussed was the opening of licensed premises on a Sunday. This is exceptional. This is not the opening of licensed premises on every Sunday in the year; this is the opening of licensed premises on certain Sundays.
But it is a discussion on Sundays.
On certain Sundays. There is a distinction.
With the greatest respect, Sir, we were dealing with the hours of opening on Sunday.
It was specifically taken with these other amendments.
"Nos. 13, 14 and 15 and amendment to amendment No. 57 are being discussed together."
The Minister has now moved an amendment himself to include in the Schedule the previous section of the 1927 Act which permitted district justices to grant area exemption orders. I am either speaking against it or moving my own amendment.
The Deputy can speak against the Minister's amendment. Of that there can be no doubt.
It was made perfectly clear that all this was being discussed on amendments 13, 14 and 15.
There was no reference to amendment 57 in that agreement. It is quite manifest that Deputy O'Donnell is entitled to speak against the Minister's amendment. For peace sake, let him speak. If we have a procedural wrangle, it will take much longer.
I do not want to have a wrangle about it or prevent the Deputy from speaking, but I want to say it was discussed fully by me and others on the discussion of these other amendments.
That may be, but amendment 57 was not named.
If the Minister is entitled to speak in support of amendment 57, surely Deputy O'Donnell is entitled to speak against it?
Long before we settle that procedural wrangle we will dispose of the matter.
There are certain parts of rural Ireland where there are functions on a Sunday. I am thinking of Deputy Killilea's area and my own area, where you may have a feis, a pattern, an athletic meeting or a football match.
Or a political meeting.
You never require an exemption order for that.
They are quite satisfied with the new extension.
I want to point out to the House that there is a hiatus in the proposed hours. Licensed premises will be closed between 2.30 p.m. and 5 p.m. and again will be closed on Sunday night at 9 o'clock. In certain places—I am thinking particularly of the seaside resorts of Bundoran, Salthill and Enniscrone— where District Justices in their wisdom granted facilities to visitors to have liquid refreshment of intoxicating liquor and otherwise in licensed premises for a certain limited number of hours, sometimes those hours were staggered. I think it was a very good system.
They are always staggered.
I know areas where there is no hotel accommodation whatever and where visitors to such places have to depend entirely on admission to licensed premises to obtain refreshments. It would be a pity if, say, the day turned wet and there was inclement weather—I know Dublin Deputies can laugh at this. It shows how little they know about rural Ireland. It shows how little they know about the pattern of life in the country. It shows how little they know about the hospitality expected from publicans and extended by them to their patrons.
Where does the Deputy think we go for our holidays?
I was going to suggest the Isle of Man. The Deputy is the type who would go there. They have forestalled us. Now you can have a drink there on Sunday up to 10 o'clock. That is what I am asking the House to do, to let us do what they are doing in the Isle of Man which has the most conservative Parliament in Europe. On Saturday, for the first time, they threw open their public houses to visitors during the tourist season until 10 p.m. I make an appeal to the Minister. All I am asking him to do is to leave it to the discretion of the district justices. Remember that unless an individual publican makes the application and pays £5 stamp duty, the application must be made by a superintendent of the Garda. He must satisfy the justice that there will be such an influx of visitors into the locality as to make these facilities necessary.
In my own native county, and I am sure in county Monaghan, county Cavan and other Border counties, we have a big influx of visitors from the Six Counties on a Sunday. I am thinking particularly of the town of Raphoe, which is quite adjacent to the Border. A number of visitors come over there from the Six Counties after lunch on Sunday, have some light refreshments and go back again. Now you are asking them to remain over until the public houses open. They have reasons of their own for coming across that we do not know about down here. They have meetings and functions for which they come over, and they are very welcome at all times.
I should be disappointed if these people could not obtain the refreshments they have been accustomed to for the past five or six years. Remember that we had great difficulty satisfying the superintendents of the Garda Síochána and the district justices that a bona fide catering trade was done in public houses in these border towns and small seaside resorts where there was no hotel accommodation, and we did eventually succeed in establishing to the satisfaction of the courts that exemptions should be given and that area exemption orders should be granted on certain occasions.
In their wisdom, the legislators of the 1927 Act defined the hours. I think three hours was the maximum number which could be granted under that Act, and that would just meet with our present licensing laws, if during the summer months, or on the occasions of football matches in winter time, the district justices were permitted to grant area exemption orders for three hours, between 3 and 5 p.m. and again between 9 and 10 p.m. By doing that, we would be catering for a class of people who would normally expect this and who have enjoyed these amenities in the past. I would oppose the Minister's amendment on that account and, if I am in order, I move my amendment to the Minister's amendment.
Arising out of this discussion, and I pass no judgment on the merits of the case when put by Deputy O'Donnell, does the small voice of conscience not suggest to many Deputies here, in the light of all we have heard, culminating in the representations made by Deputy O'Donnell, that we are talking of establishing new closing hours which are to be rigorously enforced? Does any Deputy believe that the new hours will be one bit more rigorously enforced, 18 months hence, than the hours we used to have?
They will.
I doubt it and I am going to suggest to the Minister that some day, sooner or later, we shall be forced back to the whole question of considering whether we ought to have closing hours at all, or whether we ought to have a period during which we have no closing hours, and let the social practice of our people settle this matter for itself. Then, if regulation should prove to be necessary, and I very much doubt that, public opinion would manifest itself in a very clear and incisive way which would evoke from this legislature legislation of a kind which would really command that quality of assent from the public which would effectively reinforce the arm of law enforcement.
I am sorry to say, though not really sorry, listening to the debate on the various sections of this Bill, that I am being slowly forced to the conclusion that we are not going to get effective enforcement of any closing hours. I am not at all sure that we are doing the right thing in making the attempt because we are all committing ourselves to the proposition that the Minister for Justice for the time being is assured of the unanimous support of Oireachtas Éireann in his attempt to enforce the laws. I have grave misgivings that we are assigning to the Garda Síochána an impossible task. I very much doubt the wisdom of it and, the longer I have listened to the debate proceeding on this legislation, the more the conviction grows in my mind that closing hours, as defined by law, are a mistake and the best service we could do our community would be to suspend them all.
Is Deputy O'Donnell pressing his amendment?
No.
I notice certain influential Deputies shaking their heads in assent. I admire their discreet silence. I did not hear anybody saying that they agreed with me.
I do not want to leave the Deputy alone with that. Everything I have already expressed to-day stands up to 12 o'clock.
Amendment to amendment No. 57, by leave, withdrawn.
Amendment agreed to.
I move amendment No. 58:
In the third column, to delete "Part I." opposite "Weights and Measures Act, 1928" and substitute "Sections 4 to 9.".
Amendment agreed to.
I move amendment No. 59:
After "no. 3 of 1928" to insert:
|
“No. 7 of 1943. |
Intoxicating Liquor Act, 1943. |
Subsection (1) of Section 31.” |
Amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Next stage?
April 27th.
May I make a suggestion to the Minister? The White Paper provided with the Bill was clear, lucid and most helpful to Deputies in understanding the Bill. We have had a very long discussion on this and have made a good many amendments to the Bill. When the Minister is circulating the print of the Bill, as amended in Committee, I think he should amend the White Paper and circulate it also. It would be of great assistance when considering the Bill again on Report Stage.
That is an excellent suggestion.