Estimates, 1986. - Courts Bill, 1984: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

I move that the Committee agree with the Seanad in amendment No. 1:

New section: In page 7, between lines 42 and 43, the following section inserted:

"— (1) In this section "the Act of 1964" means the Guardianship of Infants Act, 1964, as amended by the Courts Act, 1981, and the Age of Majority Act, 1985.

(2) Without prejudice to the law as to contempt of court, where the District Court has made an order under section 7 or section 11 of the Act of 1964 containing a direction regarding—

(a) the custody of an infant, or

(b) the right of access to an infant,

any person having the actual custody of the infant who, having been given or shown a copy of the order and—

(i) having been required, by or on behalf of a person to whom the custody of the infant is committed by the direction, to give up the infant to that person, or

(ii) having been required, by or on behalf of a person entitled to access to the infant in accordance with the direction, to allow that person to have such access,

fails or refuses to comply with the requirement shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the Court, to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.

(3) For the purposes of this section a person shall be deemed to have been given or shown a copy of an order made under section 7 or section 11 of the Act of 1964 if that person was present at the sitting of the Court at which such order was made.

(4) The references in subsections (1) and (7) of section 8 of the Enforcement of Court Orders Act, 1940, to an order shall be construed as including references to a maintenance order made under section 7 (6) or section 11 (2) (b) of the Act of 1964 and to a variation order made under section 12 of the Act of 1964."

Section 15 of the Courts Act, 1981, gives to the District Court a considerable measure of jurisdiction under the Guardianship of Infants Act, 1964. The purpose of the new section 5 which was inserted into the Bill in the course of its passage through the Seanad is to provide enforcement provisions parallel to that new jurisdiction. That is to say it will enable the District Court to enforce any order made by it concerning the custody of an infant or concerning access by one parent to an infant who is in the custody of another parent or a guardian by providing penalties for failure or refusal to comply with such a custody order or access order. Additionally, the new section provides in subsection (4) for the enforcement of maintenance payments which are ordered in guardianship proceedings.

Specifically, the new section of the Bill covers the enforcement of the following orders made by the District Court under the 1964 Act. First, an order under section 7 or section 11 concerning a direction regarding the custody of an infant or the right of access to an infant. Second, an order for maintenance under section 7 (6) or section 11 (2) (b) and any variation order under section 12 in relation to such maintenance order. The House may wish to note that the penalties provided for in the new section for breach of custody or access orders made under section 7 or section 11 of the 1964 Act reflect the penalty provisions in section 20 (2) of the Family Law (Maintenance of Spouses and Children) Act, 1976, and also in section 6 of the Family Law (Protection of Spouses and Children) Act, 1981. Subsection (4) of the new section is on the lines of section 29 of the Family Law (Maintenance of Spouses and Children) Act, 1976. It provides for the enforcement of any periodic payments which are ordered under the Act of 1964 by applying to any such periodic payment order or maintenance order the enforcement provisions of Part II of the Enforcement of Court Orders Act, 1940. This is an amendment which arose from the discussions I had in the Seanad and which the House will agree completes the provision which was set out in the Act of 1981 which up to now has been something which could, with some impunity, be ignored. This is a very sensible and necessary measure which I have pleasure in proposing to the House.

This is a measure which has come back to us fairly hurriedly from the Seanad. We have it at short notice. I accept the general principle as outlined by the Minister. I would like to ask him in relation to the enforcement of maintenance orders what the position is at present? It is possible to make an attachment order for maintenance to a salary. What are the current penalties for failure to comply with such an attachment order?

The specific difficulties which this amendment aims to deal with are not ones which arise specifically in relation to attachment orders but in relation to the other provisions which I mentioned where the District Court had no power to order a penalty in the event of non-compliance. As I have said, orders of the court could be ignored in some cases without there being a penalty for doing so. It is in order to give the court the power to apply a penalty, and therefore enforce its orders, that this amendment has been brought forward.

Can the Minister say what penalties will now apply?

As I have pointed out, they reflect the penalty provisions which are in section 20 (2) of the Family Law (Maintenance of Spouses and Children) Act, 1976, and the penalties applied in section 6 of the Family Law (Protection of Spouses and Children) Act, 1981. Attachment orders on earnings may be made on the basis of the 1976 Family Law Act on foot of a maintenance order made under section 11 of the 1964 Act. There is no other District Court enforcement power in the 1964 Act. We are providing one here. As I have said, the penalties are parallel to the penalties provided for in the 1976 and 1981 Acts.

Does the Minister have the penalties?

I do not have the specific figures.

Neither do I because of the nature of what we are discussing.

The penalties provided for in subsection (2) of the new section to be inserted for failure or a refusal to comply with the requirement are a fine on summary conviction not exceeding £200, or at the discretion of the court imprisonment for a term not exceeding six months, or both a fine and imprisonment.

Is the Minister saying that there are penalties in relation to subsection (4)?

It is not necessary to specify the penalties in subsection (4) because it brings in the penalties provided for in the other Act.

I wondered whether the Minister had them available as a matter of reference.

Question put and agreed to.

Amendments Nos. 2 and 3 are related and amendments Nos. 4, 5, 6, 7, 8, 9, 10 and 11 are consequential. All these amendments may be taken together, by agreement.

I move: That the Committee agree with the Seanad in amendment No. 2:

NEW SECTION.

In page 7, between lines 42 and 43, the following section inserted:

"—Section 25 of the Intoxicating Liquor Act, 1927, is hereby amended—

(a) by the insertion in subsection (1) before ‘whenever' of ‘Subject to the provisions of subsection (1A) of this section', and

(b) by the insertion after subsection

(1) of the following subsection:

‘(1A) In the case of a conviction for any offence relating to prohibited hours, the provisions of subsection (1) of this section shall apply only if the Court in its discretion so thinks proper'.,

and the said subsection (1), as so amended, is set out in the Table to this section.

TABLE

(1) Subject to the provisions of subsection (1A) of this section, whenever the holder of any licence for the sale of intoxicating liquor by retail is convicted of an offence to which this Part of this Act applies the conviction shall, if the person so convicted is the holder of one such licence only, be recorded on such licence or, if such person is the holder of two or more such licences in respect of the same premises, be recorded on all such licences or if such person is the holder of two or more such licences which do not all relate to the same premises, be recorded on such one or more or those licences as relate to the premises in respect of which the offence was committed".

Amendments Nos. 2 and 3 are concerned with the question of endorsement of liquor licences on conviction of certain offences under the Intoxicating Liquor Acts. Under the law as it stands, if a licence holder is convicted of such an offence at a time when he already has two live endorsements on his licence, the licence is automatically forfeited. This is a very severe penalty in that forfeiture of the licence removes the right of the licensee ever to hold a licence again and takes away any possibility that the premises may ever be licensed again.

This matter was raised during the course of debate on Committee and Report Stages in the Seanad and Senators on both sides of the House were concerned at the severity of the provision in so far as it applies to offences relating to prohibited hours. It was pointed out that licence holder may not be able to clear the premises before the end of the permitted hours. The penalty provided is very severe. Forfeiture of the licence in those circumstances can mean the loss of livelihood for the licensee and a very drastic devaluation of the licensed premises.

Having considered the matter at some length both in the Seanad and in more relaxed circumstances outside it I decided to accept in principle a proposal put forward there on Committee Stage that the District Court should have discretion whether or not to endorse a licence on conviction of an endorsable offence. I took the view that this discretion should be confined to offences relating to prohibited hours. The proposal before the House is therefore confined to endorsable offences relating to prohibited hours and does not extend to any of the other endorsable offences. It will still be open to the District Court to endorse a licence leading to forfeiture on conviction of an endorsable offence where there are already two live endorsements on the licence.

In that respect I am not making any change in the provision. I would recommend this provision to the House as being an appropriate one in that the District Court would be best placed to decide whether endorsement was warranted in the particular circumstances of each case. Amendment No. 2 proposes to amend the Intoxicating Liquor Act, 1927, so that on conviction of an offence relating to prohibited hours the District Court will have discretion whether or not to endorse the conviction on the licence.

There is already provision in section 27 of the Intoxicating Liquor Act of 1927 under which an appeal lies to the Circuit Court against conviction of an endorsable offence. It would be appropriate to give the Circuit Court discretion as to the endorsement of the licence similar to that which it is proposed to give to the District Court, this discretion to be exercised when the conviction of the offence comes before the Circuit Court on appeal. Amendment No. 3 provides for the grant of this discretion to the Circuit Court.

Amendments Nos. 4 to 11 propose changes to section 10 of the Bill which are consequential on the changes introduced by amendments Nos. 2 and 3. I commend the amendments to the House.

We are prepared to go along with the Minister in making this amendment in this way, although we would have preferred a more substantive comprehensive Bill to cover these measures as well as others promised by the Government. The Minister will be aware that we have been expecting an Intoxicating Liquor Bill for some time. On 22 April the Minister said in reply to a question that such a Bill was being drafted and that he expected it would come before the House fairly soon. Consequently the media and Members of the House generally have been anticipating such a Bill. That Bill has not come before us and instead one of the aspects which we felt should be dealt with in that context has now come before us in the form of an amendment from the Seanad.

The Minister is quite correct in saying that Members on all sides of the House have requested that something be done about this measure. It has been found to be particularly severe in its application and there are instances where a publican could lose his licence for one offence on being charged under three different headings relating to the same occasion. This kind of development brought to the attention of Members of this House the problems associated with the relevant section of the original 1927 Act. The existing measure has been described as draconian and particularly severe. It certainly needs amendment but, by doing it in this way we are not really getting the opportunity to discuss and debate it fully and come up with other suggestions and possibilities. Presumably the Minister plans to bring forward a more comprehensive Bill at some time in the autumn but I would prefer if, associated with this matter, we had a measure to deal with under-age drinking, for instance. This is a matter on which Members on all sides feel very strongly. I appeal to the Minister to give urgent attention to that question.

The Minister has chosen to put this measure before us and it will provide an alleviation for some people who have been particularly hard hit by the severity of the existing law. The problem is that the judge has no discretion once he convicts a publican for, say, trading 20 minutes after hours and he must endorse the licence. Once the licence is lost, neither the publican nor the premises can be licensed again. That is the case that was made to us.

I have the original Act with me for reference purposes. Section 25 of that Act is amended by the insertion in subsection (1) of the words "Subject to the provisions of subsection (1A) of this section". The rest of subsection (1) stays as it is. It is followed by subsection (1A) which states:

In the case of a conviction for any offence relating to prohibited hours, the provisions of subsection (1) of this section shall apply only if the Court in its discretion so thinks proper.

It is placing the onus on the court, on the district justice, to use his or her discretion. That changes the provision in the 1927 Act. Had we more time to consider this measure or had the Minister included it in the more substantive legislation that was promised before the summer recess we might have thought it desirable to give a district justice discretion to close a licensed premises for a short period as a form of penalty, for two or three weeks. I accept that the present provision is draconian but we must recognise the importance of this area and the need to keep control in it. The vast majority of publicans run good houses but I would like to see a reasonable amount of control exercised. I hope the Minister will bear those views in mind. I will not press the measure now because of the limitations on time.

Did the Minister consider giving discretion to district justices to impose higher fines? I have no doubt that had we had time to consider this matter we would have been able to put suggestions to the Minister in regard to these measures. Is the Minister in a position to give details of the fines applicable to such offences? Subsection (2) of amendment No. 3 which seeks to replace section 27 of the 1927 Act states:

On the hearing of an appeal under subsection (1) of this section from a conviction for an offence relating to prohibited hours, the Judge of the Circuit Court may, although affirming the conviction, make, if in his discretion he so thinks proper, an order declaring that such conviction shall not be recorded on such licence and, whenever such an order is so made, such conviction shall not be so recorded and shall for all purposes be deemed never to have been so recorded and, accordingly, any forfeiture occasioned by the recording of such conviction shall be deemed to be cancelled.

Presumably that means that on appeal the recording of a conviction may be cancelled. I am aware of cases where that measure is necessary to deal with severe treatment meted out to publicans.

I recognise the point made by Senators in that regard and what the Minister is trying to do in his amendment. However, I anticipated that this measure would be considered in the context of the Bill the Government had promised to introduce before the summer recess. That Bill has been put back to the next session. It is unfortunate that we will not have an opportunity to discuss this measure in detail over a number of weeks but we support the Minister in the amendment. I hope he considers the points I have made in regard to other discretions which should be made available to the district justices instead of the draconian measure the Minister is removing.

I should like to commend the Minister for accepting the learned suggestion made by Senators on this point. I have spoken in the House on what I have described as the severe penalty imposed on publicans found in breach of the licensing laws. District justices did not have any discretion in regard to endorsements. The amendment before us illustrates the real value of the Seanad. Those who supported the amendment respect the law and put forward this suggestion to fulfil the ambition of every good publican, to run a good house. The Minister has accepted the good will of the licensed vintners and in doing so has acknowledged their right to a livelihood. I can understand Deputy Woods's frustration at the delay in bringing in the promised legislation but I am aware of publicans in my constituency, who are not members of my party, who run a risk of losing their livelihood if the legislation is not changed. The old penalty was too severe and draconian.

Competition between licensed premises is great and the trade has changed dramatically in recent years. Many district justices have complained that they did not have the liberty to save the licences of publicans. I commend Senator Howard for championing this measure through the Seanad. As a representative of the licensed vintners he has done an excellent job for the trade.

I should like to join with Deputy Carey in making the very general remark that the three main amendments before us this evening in their genesis seem to me to vindicate the bicameral nature of our Oireachtas. I do not intend to go any further than that but those amendments illustrate how, after quite a searching debate in this House, further consideration can be given to matters that perhaps, are not fully dealt with in this House. In saying that I do not mean to be disrespectful to the House but they may not be dealt with here because our concerns on a particular occasion may lie elsewhere.

I am glad the measure has been received in the House in the way it has been taken and I should like to thank Deputy Woods for his agreement to take the matter in the way it has been discussed. It was an extremely constructive response to a debate that has been going on for quite some time. I am sure the Deputy will be happy if I remind the House of something his colleague, Deputy Hyland, said, during the debate on Report Stage on 12 March. I will quote from column 1744 of the Official Report:

A District Justice should at least be given flexibility under the new legislation to endorse a licence,

In the course of my reflection on the measure that was put to me in the Seanad I examined a suggestion which has also been mentioned by Deputy Woods, namely, the possibility of giving the District Court discretion to suspend a licence for a short period. I have to say that would be a very awkward measure to define and, on reflection, I think Deputy Woods will agree with me.

I accept the point made with regard to the monetary penalties. At the moment the penalties are £20 on first conviction and £40 on the second and each subsequent conviction. I think the House will agree that those penalties need to be updated and in the further legislation I shall bring forward in the autumn session I will provide for a substantial review of all the penalties in relation to the Intoxicating Liquor Acts in order to bring them more up-to-date. I can assure Deputy Woods that in that area I shall meet his concern. I can also assure the House it will have no cause for complaint as to the lightness of the legislation I shall bring forward in the autumn. Quite a number of areas need to be covered, as has emerged during the course of our debate here on this Bill.

Deputy Woods has pointed out that amendment No. 3 replaces section 27 of the 1927 Act. I repeat the point that, having given a discretion to the District Court, it seems to me consistent and desirable that we should follow up in the case of the appeal to a Circuit Court by making a provision along the lines of that proposed. It maintains the logic of the system.

I should like to repeat two points. First, the measures I am proposing concern only endorsable offences relating to prohibited hours, not any of the other endorsable offences of which there are many. Secondly, it does not in any way disturb the situation under which a licence on which there are three live endorsements is forfeited.

I was aware of the fact that Deputy Hyland had raised the specific point referred to by the Minister. Many points were raised in the context of the Bill but they were seen at that time to be matters for the Bill dealing with liquor licences and, therefore, were not properly in the context of the Bill. We are conscious of the concern which has been represented to Members on both sides of the House in relation to this matter and we support the Minister in this connection. However, I have to say that I think we could do the task a little better if we had more time, but that is the only point I shall make about that now.

I wish to ask the Minister if there is available at this stage some mechanism whereby we can amend the fines of £20 and £40. The Minister could find that others would be highly critical of taking away control without providing for an increased fine that was more realistic. I do not think the licensed trade would object to it because I presume they would like to see adequate fines being imposed. It would have been preferable if the Minister could have put forward a brief amendment adjusting the fines upwards to make them more realistic. Will he consider increasing them by some amount even at this stage or has he any suggestions to make on that point? Obviously £20 is an entirely unrealistic figure and should be increased. Will he consider multiplying that figure by ten or increasing the fine to £500 in order to make the measure more realistic?

As I said earlier, I have in mind a general updating of the fines provided for in the Intoxicating Liquor Acts. Without being any more specific, the kind of proposal the Deputy has in mind is not a million miles away from what I have in mind. In a Bill I shall bring forward in the autumn session I shall deal completely with the question of fines. I do not think we will be doing any disservice to the public or violence to public order by having a hiatus of a few months between this measure and the updating of the fines.

I was thinking of protecting the Minister in the interim. If the Minister's officials were quick at drafting they might have been able to produce an amendment.

Question put and agreed to.

I move: "That the Committee agree with the Seanad in amendment No. 3:

New Section:

In page 7, between lines 42 and 43, the following section inserted:

"—The Intoxicating Liquor Act, 1927, is hereby amended by the substitution of the following section for section 27:

"27.—(1) Whenever the holder of any licence for the sale of intoxicating liquor is convicted by a Justice of the District Court of an offence to which this Part of this Act applies, an appeal shall lie from such conviction to the Judge of the Circuit Court within whose circuit the District or any part of the District of such Justice is situate, and the decision of such Judge shall be final and not appealable.

(2) On the hearing of an appeal under subsection (1) of this section from a conviction for an offence relating to prohibited hours, the Judge of the Circuit Court may, although affirming the conviction, make, if in his discretion he so thinks proper, an order declaring that such conviction shall not be recorded on such licence and, whenever such an order is so made, such conviction shall not be so recorded and shall for all purposes be deemed never to have been so recorded and, accordingly, any forfeiture occasioned by the recording of such conviction shall be deemed to be cancelled." ' ".

Question put and agreed to.

I move: "That the Committee agree with the Seanad in amendment No. 4:

Section 7:

In page 8, line 17, ‘section 4' deleted and ‘sections 4, 6 and 7' substituted".

Question put and agreed to.

I move: "That the Committee agree with the Seanad in amendment No. 5:

Section 7:

In page 8, line 18, ‘they relate' deleted and ‘it relates' substituted".

Question put and agreed to.

I move: "That the Committee agree with the Seanad in amendment No. 6:

Section 7:

In page 8, line 20, ‘the said section 4' deleted and ‘the said sections 4, 6 and 7' substituted".

Question put and agreed to.

I move: "That the Committee agree with the Seanad in amendment No. 7:

Section 7:

In page 8, line 21, ‘they relate' deleted and ‘it relates' substituted".

Question put and agreed to.

I move: "That the Committee agree with the Seanad in amendment No. 8:

Section 7:

In page 8, lines 23 and 24 deleted and the following substituted:

‘(3) Sections 4, 6 and 7 and, in so far as they relate to the law on intoxicating liquor, section 9 of this Act and the First Schedule to this Act, and the'."

Question put and agreed to.

I move: "That the Committee agree with the Seanad in amendment No. 9:

Section 7:

In page 8, line 28, ‘Section 6' deleted and ‘Section 9' substituted.

Question put and agreed to.

I move: "That the Committee agree with the Seanad in amendment No. 10:

Section 7:

In page 8, line 32, ‘and 5,' deleted and ‘and 5 to 8,' substituted".

Question put and agreed to.

I move: "That the Committee agree with the Seanad in amendment No. 11:

Section 7:

In page 8, lines 34 and 35, ‘section 6, and section 7,' deleted and ‘section 9, and section 10,' substituted".

Question put and agreed to.
Amendments reported and agreed to.