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Dáil Éireann debate -
Wednesday, 18 May 1988

Vol. 380 No. 8

Intoxicating Liquor Bill, 1988: Committee Stage (Resumed).

SECTION 6.
Debate resumed on amendment No. 5:
In page 5, line 33, after "restaurant" to insert "which may be designated in size by the Board".
—(Deputy Colley).

We are on amendment No. 5 and with amendment No. 5 we are taking amendments Nos. 6 and 46.

Perhaps I will restate what I was talking about before the sos. These amendments deal with the size of the waiting area of the anteroom adjacent to a restaurant. There is general agreement between the Minister and the different spokespeople about the fact that this should be designated in some way and — relating to Deputy Barrett's amendment — that those who are waiting should be waiting to have a meal in the restaurant. However, the Minister seemed to indicate that the ante-room or waiting area should be restricted to diners who are there before their meal and that it should not be available to those who have finished a meal, who have reached the coffee stage and who wish to finish their bottle of wine or whatever drink they have in the waiting area. This is a reasonable practice and, as Deputy Kelly said, it allows the restaurant proprietor to make room for other diners and to clear the tables. It is reasonable to request that the ante-room should be available for that purpose. I will be interested to hear the Minister's views because he seems to be indicating that he wants diners to finish their meal and, if they wish to have a post-prandial drink, to get into their cars and find a licensed premises somewhere in the locality. That is a most unrealistic suggestion.

It is a barbaric solution, so much so that I do not believe the Minister means it.

I believe he means it but perhaps he has not given it full consideration. The Bill deals with high quality restaurants — not takeaways or fast food joints — and people who frequent such restaurants do not expect to be shifted and shunted around the locality to satisfy their needs for the night. At present, that certainly is not the case and it would ultimately be a step backwards if the Minister insists on such an interpretation of the Bill.

Section 7 (1) (iii) states that intoxicating liquor must be consumed in the waiting area of the restaurant before the meal by the person for whom the meal was ordered, consumed in the waiting area or else within 30 minutes of the finish of the meal, in the dining area. On a number of counts, that will not be easy to control. The waiting area should also be used for the consumption of alcohol after the meal in a reasonable fashion. Most people who go for a meal expect to finish it in comfort, including a bottle of wine, in congenial surroundings adjacent to the restaurant or part of the restaurant premises.

I do not know how the 30 minutes rule will be policed. Perhaps the Minister will say how he envisages that being dealt with. Diners who come in at 8 o'clock in the evening could finish their meal at around 9.30 p.m. or 9.45 p.m. but other diners may not start their meal until 11 o'clock. Who will be able to tell which diner has finished the meal, which diner is waiting and which has finished the meal an hour and a half ago? It cannot be policed and will bring the law into disrepute like so many other laws. It is high time we moved away from implementing legislation that is inoperable.

Many of the points made by Deputy Kelly, Deputy Cooney and Deputy Colley are reasonable, civilised and understandable. However, in relation to licensing laws, the average punter in the street fails to understand why places in Leeson Street are open until 4 a.m. and that some hotels will serve pints at 1 a.m. They wonder why they cannot get a drink in a ballroom. The law is being abused and it is very hard to argue against many of the points made. Nobody would object to people going into an ordinary restaurant having a meal and a drink and then going home. However, there are loopholes in regard to the special restaurant licence——

Surely that will depend on enforcement?

Of course it will depend on enforcement but the police have a lot more to do than going around every restaurant to check the position. We can provide for the sort of entertainment to which Deputies have referred in relation to people having a drink with a meal and, at the same time, tighten the provisions of this Bill to counteract the possible loopholes. That is why I have tabled amendment No. 6 to clearly indicate in legislation that a waiting area is a place where people wait to have a meal and have a drink while waiting.

The Minister indicated that he would look at these amendments. I do not know whether he intends to accept amendment No. 6. Perhaps he is not happy with the wording. Does he have a proposal for Report Stage? My amendment does not put an onus on Bord Fáilte but, if the Minister does not intend to accept it, perhaps he will explain why.

As I said earlier in dealing with the amendments tabled by Deputy Colley and Deputy Barrett, I am also very conscious of the size of the waiting area. I am anxious that waiting areas should not be large enough to constitute bars, as happened in Northern Ireland, when it was necessary for them to legislate to prevent these restricted licences becoming full bar licences in a very short period of time. Having regard to their experience it is my intention to limit, as a percentage of the restaurant dining area proper, the size of the waiting room. I do not intend to put any restricition on anybody having a drink, or a number of drinks, as I said in reply to Deputy Kelly. People may have as many drinks as they wish up to 30 minutes after their meal at the table where the meal was served.

For the simple reason that we would have no way of enforcing a provision if there was a free-for-all in a private room or a waiting room afterwards. We have learned from the experience in Northern Ireland where that happened.

When does the meal end?

We will let the courts decide that.

Does the meal include the drink?

Can people go to a coffee table?

People are allowed to have drink with a substantial meal.

It is part of the substantial meal.

The Deputy may say it is part of a meal if she wishes but, as far as I am concerned, a person may have the drink with the substantial meal. For instance, if I am having Ballygowan with my meal I do not necessarily want to have to believe that it is part of my meal.

What is the position if a person is eating After Eight chocolates?

I should like to tell Deputy Colley, who persists in going to the type of restaurant that does not allow her have her cup of coffee at her table, that she should consider going downmarket where she will find a number of restaurants who will allow her do that. I recognise the thrust of Deputy Barrett's amendment and I am prepared on Report Stage to come forward with a definite proposal which will limit the size of the waiting areas so as to avoid the creation of a new pub.

I do not think the size is the issue. It could be an issue if the waiting area was extended beyond what would be reasonable for a given sized restaurant but I am concerned about the use of the waiting area, whatever its size. We could restrict the size but we could have something we never intended. If the Minister accepts the wording in my amendment he will not be inhibited in bringing forward on Report Stage a provision in regard to size.

The House should accept the Minister's willingness to consider this matter between now and Report Stage. We must never get away from the main purpose of the Bill which is to permit the serving of intoxicating liquor with a meal. We do not have a definition as to what is a waiting area in a restaurant and I hope one is produced between now and Report Stage. Is there such a definition in respect of restaurants that serve wine in accordance with their wine licence? I was interested to hear Deputy Taylor's comments in regard to a waiting area. I should like to get an assurance from the Minister that drinks served in a restaurant with a substantial meal will appear on the bill for the meal. That is important.

I understand Deputy Barrett's concern in regard to a strict definition of "waiting area" and between now and Report Stage I will try to produce an amendment that will tighten up that definition so that it will mean what we want it to mean, a waiting area where people wait while ordering a meal or waiting for a vacant table.

It may be that the Minister, when considering this between now and Report Stage, will have it suggested to him by his officials, or it may occur to him spontaneously, that some questions in regard to the use to which the waiting area may be put could arise in the context of possible abuse. In other words, it might seem to him, or his officials, relevant to consider questions of the provision of entertainment or the facilitation of entertainment over and above having a drink in a waiting area. If that should be so I should like to ask the Minister to incorporate a special power. I should like to ask him either to express in the Bill whatever restrictions he intends in this regard or to extend section 12, which empowers the Minister for Tourism and Transport to make regulations because, as it stands, it might not appear at a later date to a court to be wide enough to empower the Minister for Tourism and Transport to make regulations of a kind that do not relate to what might be called touristic standards. The question of deciding, for reasons which do not have anything to do with tourism but everything to do with not providing unfair competition, on regulations might put the Minister for Tourism and Transport in a position that he might do something ultra vires, have this struck down and umpteen prosecutions invalidated.

In section 12 the Deputy will see that if the Minister for Tourism and Transport makes regulations he must do so with the consent of the Minister for Justice.

I have no doubt that is so but my point is — I had not anticipated speaking about this point which came into my mind a moment ago and I would like to have had time to think about it — that each Minister has a certain role and a certain battery of statutory functions and he is not entitled to exercise those statutory functions by reference to purposes which are the business of a different Minister or authority. A plethora of authorities are involved in this legislation, the Minister for Justice, the Minister for Tourism and Transport, the Garda Síochána and Bord Fáilte. There are not too many Acts on the Statute Book that involve as many as four authorities in their administration. It is fine to give the Minister for Tourism and Transport power to make regulations provided they are relevant to his role.

My amendment seeks to insert the words, "which may be designated in size by the Board". The Minister has said that regulations made by the Minister for Tourism and Transport may deal with the size of the waiting area in relation to the restaurant but another provision in the Bill states that those regulations by the Minister for Tourism and Transport may not be made. Bord Fáilte, who will be in the position of designating a premises as a bona fide restaurant, should be given the responsibility of stating what constitutes a proper waiting area in the restaurant they are examining.

I do not think we should enter the size of the waiting room in the section but Bord Fáilte should have responsibility for maintaining a proper ratio between the two areas in the one premises. If they are given that responsibility we will get over any difficulties that may arise if regulations are not put forward by the Minister for Tourism and Transport. So that there will be no doubt in regard to this, I am suggesting that Bord Fáilte be empowered to designate the size of the restaurant and the waiting area. Officials from Bord Fáilte, after all, will be inspecting such premises on a regular basis. I would ask the Minister to consider that.

I must admit that this talk about the size of the waiting area as opposed to that of the restaurant area escapes me. I do not see the point of it. Are we saying that if the waiting area is small drinking per se is all right there? Is there a fear that if the waiting area is too large in comparison with the size of the restaurant the bar facility will thereby be abused? If the waiting area is small, that is all right. All of this is very far removed from what we are providing in the Bill.

We are saying that no part of this restaurant is to be used for the serving of drink without the adjunct of a substantial meal. That is the crucial element. What difference does it make if the waiting area is small, medium or large? If a restaurateur decides he wants a certain size of waiting area, that is his affair. The point which has to be watched is whether he uses this area purely for bar purposes.

We are making this Bill far more complex than it ought to be. To enforce this sort of thing one would need a large-scale map of every premises with the restaurant area edged in red and the waiting area edged in blue so that the gardaí could come in with a measuring tape to see if the boundaires are being observed. If a person wants to bring his dessert into the waiting area, is it the end of the world? This thing is getting out of hand and we are being carried away. If we go much further down this road we will end up in cloud cuckoo land instead of in a restaurant. We are talking about a restaurant premises where there is a waiting area and a dining area. We are trying to ensure that the drinking which takes place there is in association with a substantial meal. That is provided for in section 7. The only aspect with which I am not happy is that it does not provide for people to finish off drinks or have a drink after they finish their meal in the same way as before they start the meal. I do not see that any great differential ought to be drawn between those two situations. We must move away from these complexities which have been introduced because of pressures from outside lobbies. If we do not we will have messy, unenforceable and not very sensible legislation.

I would have to disagree with Deputy Taylor. The waiting area is of the utmost importance. Most Deputies have spoken about abuses. This area has the greatest potential for abuse. I do not like to hear about a percentage of the premises being designated as a waiting area. A large premises will have a large waiting area which will have the potential to be a lounge bar. There is no way it can be competently policed and controlled. The Minister is trying to ensure that these restaurants can supply intoxicating drink with a meal. If we provide a waiting area it will become a bar, a lounge, or a saloon for drinking purposes. Deputy Taylor mentioned taking the dessert to the waiting area at the end of the meal.

What is wrong with that?

Then there is the 30-minute period. Is that where we introduce the toothpick? I am very concerned about abuse of this waiting area.

Abuse of what?

Abuse of the law.

This is the law we are trying to make. It will not be abuse if it is allowed for.

We are talking about providing it in the run-up to the legislation.

The Deputy is saying——

I was endeavouring while Deputy Colley was speaking to ensure that she would not be interrupted. I must do the same in respect of Deputy Jacob.

I am very concerned about the size and the use of the waiting area and how it might develop over a period. Will there be jugglers there to make it attractive or people doing handstands or playing the fiddle? We should be talking about a restaurant which has a licence to provide drinks with a meal. I should like the drinks and the meal to be incorporated on the same tab at the end of the evening.

We should be discussing the purpose of the waiting area rather than its size. The Minister has stated he will ensure that provision is made in the Bill to copperfasten this aspect of the Bill. We all know what happened when seemingly harmless clubs were given the go-ahead some years ago. I know one town in County Meath which has 15 clubs. Nobody knows how the books are kept and in some cases it is not known who is operating the clubs. The licensing trade has got out of hand. The Minister is to be commended on listening to every submission. It is important to ensure that there will not be abuses such as the addition of ballrooms to existing restaurants. I know that is not the intention but we must eliminate the possibility.

Deputies Taylor, Jacob and Lynch have spoken in favour of what I am doing.

I am proposing to amend the definition of "waiting area" to read as follows:

"waiting area" means an area set aside as a waiting area in a restaurant the purpose of which is solely to accommodate persons who are waiting, bona fide, to have a meal in the said restaurant.

I am not talking about the size of the waiting area.

Is that not what the definition already says?

It does not.

It says that it is a place set aside for persons intending to have a meal. What more can we say without repeating ourselves?

Section 12 gives the Minister for Tourism, with the consent of the Minister for Justice, power to make regulations to deal with the size of the waiting area. I do not see why we have to have a provision if a further amendment which Deputy Colley and I have down says that the Minister for Tourism and Transport shall make regulations, as distinct from may make them. We are guaranteed, if that amendment is accepted, that regulations will be made. Those regulations can cater for the size of the waiting area as provided in the Bill. In the meantime, let us talk about the purpose of the waiting area, which is what I am endeavouring to do here.

There is an impression that because you make a point you are against the person who wants to go out and have a meal and a drink with it. Like Deputy Taylor, I attend many restaurants in town and know what is happening. Equally, I know what is going to happen. I have been given evidence which shows that some of the bright boys have already moved in and bought premises where they intend opening night clubs under the legislation as it stands at present. The idea is that you have a disco on the ground floor or in the basement and a restaurant on the first floor. You call the ground floor or basement the waiting area and provide drink and disco music. How can you ask a garda to try to prove that any person there is not waiting for a table upstairs? I am not in any way trying to interfere with the normal restaurant with a waiting area, a place in which people have a genuine meal and drink, and a cigar if they wish, can chat for two or three hours after a meal and go home. I want to prevent the bright boys, under a special restaurant licence costing £3,000, from upsetting genuine businesses built up at very high cost and employing many people, paying PRSI and so forth.

I put this amendment down so that there would be no doubt as to the purpose of a waiting area. It is for people who are waiting to have a meal and the vast majority of those finish their meal, have a drink at their table, get up and go home. We do not want to interfere with them in any way. There is at present wholesale abuse of the licensing laws and we as legislators should be doing something about it. I do not want another loophole created on the introduction of special restaurant licences. I would ask people to think about the possible abuses. There are masses of abuses that could be introduced under this section at the cost of £3,000 and £50 renewal fee. I have no time for those who have broken the law consistently and put genuine people out of business. Of the three ballrooms in this city, one is up for sale at the moment. The city is left with only two ballrooms because there were abuses of the exemption laws in relation to licences. Because people who go to discos and get drink there, other people were put out of business, bands were put of business, causing a lot of unemployment.

That is right.

I am not going to defend anybody who breaks the law, or to allow legislation to be passed when it is obvious that there will be abuses.

Deputy Barrett particularly makes the case that there are people who are already looking for loopholes in this legislation but it relates to the type of business in which there are already abuses — the disco and late night drinking fields. If the purpose of this part of the Bill is to provide legitimate restaurants with the facility of serving alcohol with meals, let us confine ourselves to thinking about those situations and deal on a separate basis with the anomalies that have already occurred in the present legislation. Let us not penalise the legitimate traders and restaurant owners.

I am not penalising them.

I do not intend to penalise them.

The traders themselves are satisfied with what I am doing here.

We are giving them a golden handshake.

Deputies and Minister, let us give Deputy Colley the protection that she needs.

Let me define what I mean by penalising. We are now going to refuse to allow legitimate restaurants to carry on their legitimate business as they do at the moment, which includes people retiring to a waiting area after a meal and meals being served throughout the day, on the basis that this will give rise to abuses, whatever that means. I put it to the House that, to a great number of people, it seems to mean that the trade carried on so far by licensed vintners may be threatened. In other words, we are not allowed to develop different aspects of the drink trade because it might impinge on the existing trade. That is incomprehensible and indefensible. If we continue along the road we are taking with the Bill before us, we will penalise legitimate restaurant owners because we will not allow them the full potential to which their business is entitled. I would be one of the first to say let us close the loopholes in relation to late night drinking and discos, certainly, but this is not the way to do it. They will find loopholes in this legislation too. Let us address that matter in proper terms in proper legislation.

It is not the intention of anybody to penalise the restaurateurs in any way whatsoever. It is very wrong to keep suggesting, as Deputy Colley is, that that appears to be the intention. It is not accepted by the restaurateurs that that is the intention, that that is what is proposed.

It is in the Bill.

Representations made by the restaurateurs show that they are satisfied with what is there with regard to the waiting area. The genuine restaurateurs do not ever want to become involved in the bar trade. They recognise that in their own interests they must hold the line as much as we would want them to. Their licences come up for renewal at the end of the year and if they are involved in trade other than the bona fide restaurant trade, they will be in serious difficulty with regard to their licences.

In Northern Ireland legislation framed as we are now framing ours, was grossly abused. We are learning from that experience. What Deputy Barrett has said is correct with regard to people trying to move in to get themselves ready to avail of loopholes. Some of those involved in the licensed trade generally are the first to see a loophole. On behalf of the vintners whom I have met, in the country and in the city, I must say that they are not interested in loopholes. They want this legislation properly set up and running from the word go. The main comment I get from those involved in the licensed trade is that there should be one rule right across the board for everybody and that if that law is enforced there would be no difficulties. We want to get as near to that as possible. Deputy Colley may not understand or know the scene as outlined by Deputy Sean Barrett.

Indeed I do, but this is not the way to deal with it.

If Deputy Colley does, she should readily understand why Deputy Barrett is trying to tighten up the definition of a waiting area. I accept the thrust of his amendment. I have no objection to it. My only difficulty is that I have already had discussions with the parliamentary draftsman to try to come up with an appropriate format of words, as I do not think that Deputy Barrett's format of words will do what he, I and others want it to do. On Report Stage we will have the benefit of the advice of the parliamentary draftsman, incorporating the thrust of Deputy Barrett's amendment.

It is wrong to suggest that restaurateurs would be penalised if the areas in which drinks could be had while waiting for a meal were specified as being within a certain size. I understand the concern Deputy Taylor showed in his contribution. The Deputy said that what we are talking about here is allowing drinks in association with a substantial meal. That is true, but we want to ensure that others who would not be half as scrupulous or as honest as Deputy Taylor and others in this House will not drive a coach and four through this so that we finish up having the Leeson Street strip scene throughout the length and breath of the country. That is what I am trying to prevent and I say that without apology to anybody.

I accept that Deputy Colley is not trying to advocate the extension of the Leeson Street scene but I am strongly advised that if we do not do as we are doing there is every likelihood that that is what will develop. If we define the size of the waiting areas it is not for the purpose of making anybody hang a chart on the wall saying that areas in green constitute the dining room proper and that areas in red constitute the waiting room, and so on. Nobody wants anything like that or to cause extra hassle for restaurateurs who are making a living and providing a good facility. The genuine restaurateurs are more than anxious that we tighten up this definition of the waiting area as is suggested by Deputy Barrett. That is why I can quite readily accept the thrust of what the Deputy is suggesting.

It is wrong to suggest when we are doing this that we are here representing any particular association. That was the second time here today that that accusation has come from the same party — from Deputy Colley now and from Deputy McDowell earlier on. That is not good enough and it is something I want to nail here and now.

Maybe the Minister is forgetting that my amendment is limiting the size of the waiting area.

I will call Deputy Quinn, then Deputy Cooney, and then Deputy Michael Lynch. The Chair reminds the House that we are still on section 6. I recollect from experience that a point can be reached on Committee Stage, and if one goes too far beyond it one could find oneself perhaps not employing the time available to the best advantage. I remind the House that Committee Stage must finish at 10.30 p.m. this evening.

The Taoiseach gave an undertaking this morning on the Order of Business that that matter could be reviewed.

The Chair must take what is before him at the moment and what I have stated is the position. I remind the House of the position. It is a matter entirely for the House to decide how they want to interpret it. Deputy Quinn.

I have been listening to this debate and I have been concerned, as is the House, at the rather slow progress. I do not know if the Leas-Cheann Comhairle was in the House when the Taoiseach gave that undertaking, that if we did not make sufficient progress the matter might be reviewed. That is outside of our control at this stage and it is a matter for the Whips.

A lot of restaurateurs are located in my constituency in Dublin South East and I have been approached by many and I am reflecting their views. The sort of restaurants I refer to would automatically be included in the top list of premises designated by Bord Fáilte and qualifying on all the other criteria. The restaurateurs' interpretation and their solicitors' interpretation of this Bill, specifically in relation to the points raised, is that where they have a bar they could well be required to remove it. We all know of restaurants around town which have in the waiting area a place where people can sit and drinks are served in the normal way. I accept that but it might be more appropriate to deal with this on Report Stage. However, my constituents' concern is that, on top of having to pay a licence fee, when the Bill becomes law, they will be required to change the layout of the waiting area and remove the bar.

I have been involved in the design of a number of restaurants and so on. The kind of restaurants we want to legalise, of necessity, have a waiting area and a waiting area traditionally has the facility to serve an aperitif or a pre-dinner drink. Because of the storage and the hygienic requirements associated with it, that usually comes from a bar. If the legal interpretation of this Bill is such that owners are required to remove the bar it would damage the operation of the premises as a first-class quality restaurant and we would remove what is the intent of this legislation.

I have read the amendment put down by Deputy Barrett on behalf of Fine Gael and the amendment put down by Deputy Cooney in his own name and I support them. I have been approached by quite a few restaurateurs who have drawn my attention to this point. Some restaurateurs would not apply for a licence because the additional cost implicit in what could be interpreted would be prohibitive along with the cost of the licence.

It seems to be common case that we all want to see a waiting room or an anteroom in addition to the dining area, where people will gather before proceeding to dine and where they will have drinks. The size of the waiting room in relation to the dining area is irrelevant, as Deputy Taylor said. The waiting room will be a premises that will mainly be used for the sale and consumption of intoxicating liquor. That is inevitable, because the liquor that will be consumed will be sold in that room. It will be billed with the meal, but the main use of that room will be for the consumption of intoxicating liquor, while people are waiting to have a meal. That will be the nature of the waiting room.

Section 16 (1) says that a restaurant which has a special restaurant licence shall not contain a bar. The definition of a bar specifies that one of the ingredients of a bar is that it consists of a premises mainly used for the sale of intoxicating liquor, which is what the waiting room will be. The point is that the definition of a bar inevitably and unavoidably includes the waiting room that we have all been talking about. However, section 16 (1) excludes a restaurant from having a bar and we are defining a waiting room as a bar. We have a contradiction here. We cannot have a waiting room in the manner that we have been talking about if we have a definition of a bar as in this section.

I will look at it on Report Stage.

The parliamentary draftsman's interpretation is quite acceptable to me. In broadening legislation, which is what we are doing here, we must ensure that we do not make any provision that will give rise to abuses. As I have said, the legislation was broadened so as to allow for the granting of special licences for discos and dinners. There have been abuses down through the years but I am glad that the Minister has reiterated what he said on Second Stage, that is, that there will not be one law for one section and another law for another. I am glad the Minister is sticking to his guns on this matter.

Will we defer it until Report Stage?

I will, and I will also take up Deputy Cooney's point with the parliamentary draftsman before Report Stage.

Will the Minister also consider the spirit behind these two amendments?

I certainly will.

In relation to the points made by Deputy Quinn, surely we covered that ground this morning? Just like Deputy Quinn, I would like to be reassured, just in case I misunderstood the Minister, that this Bill will not require a restaurant owner to change what is essentially the decor or otherwise he cannot serve drink. Traditionally, there is some small area in a restaurant which looks like a section of what conventionally would be called a bar. I would like to be assured that there is nothing contained in this Bill which would interfere with the physical object, which we call a bar, in a waiting area.

It is a bar within the meaning of the definition.

He would have to comply with fire and health board regulations just like everybody else.

Let us be clear about this. As Deputy Quinn has rightly said the word "bar" has two meanings in this context. The first is a purely physical object which, as a matter of mechanics, is indispensible for storing beer barrels and allowing water to be put on tap to dilute drink. Surely, we are not going to require its removal if it exists at present in areas used by restaurants as waiting areas?

I would like to draw the Deputy's attention to a comment which I made in reply to points which he made earlier——

I thought I understood it.

It is not the intention to dictate what the decor should be in any restaurant. Nobody has any intention of doing that.

That is what I understood the Minister to say.

I intended making a contribution when we came to deal with section 16 when I thought this matter would be properly dealt with but at the rate at which we are going I doubt if we will reach section 16. I can think of two restaurants in this constituency which would automatically qualify for this type of licence. One of them contains a counter. As Deputy Kelly has said, in order to be able to serve drink and comply with the hygiene regulations which Deputy Lynch is familiar with, one would need refrigeration, washing and storage facilities. These are combined usually in one physical object which fronts out into the waiting area. People either sit beside it or they sit on easy chairs or stand beside it. Alternatively, a person does business behind it and comes out from behind with a tray of drinks.

That is allowed.

Those restaurateurs believe that, in order to comply with the Bill, if enacted, they will have to remove this piece of equipment from the waiting room. I am giving this information in order to assist the parliamentary draftsman and I ask the Minister to consider this point before Report Stage.

I will do that.

Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Section 6, as amended, agreed to.
SECTION 7.
Amendments Nos. 7 to 9, inclusive, not moved.
Section 7 agreed to.
SECTION 8.

I move amendment No. 10:

In page 6, subsection (1), line 27, after "restaurant,", to insert "the area of which will be delineated in a map or plan,".

What I hope to achieve with this amendment is some consistency. As I understand it, when a person applies for a licence for a licensed premises they have to produce a map of the area to be licensed. There appears to be no reference in the Bill to such a requirement in respect of a special restaurant licence. I thought it might be worth while putting down an amendment in order to find out the actual position. It would be interesting to hear the Minister's views on this.

I would like to point out to Deputy Barrett that the intention of section 8 (1) is that the application for a special restaurant licence must show to the satisfaction of the Circuit Court that a Bord Fáilte certificate in respect of the restaurant is in force. It would be inappropriate that any provision as to the content of such a certificate should be included in section 8 (1). I note also that under the Deputy's amendment the map or plan would merely show the area of the restaurant concerned but need not show the disposition of the accommodation. The Deputy's amendment says that the area will be delineated and I presume the intention is that this would already have been done before the certificate was issued. If the intention is that the Bord Fáilte certificate should have a plan of the restaurant attached, a provision to this effect would I think be more appropriate to subsection (2) of section 8 in view of the definition of the Bord Fáilte certificate in section 6. The question as to whether a provision of this kind might be inserted in section 8 (2) will certainly be examined by me between now and Report Stage. I will come back to this matter again on Report Stage.

There is no requirement to produce a map of the area to be licensed, as is the case with licensed premises, in respect of special restaurant licences. A licence would be issued to an individual in respect of a premises. I wonder is there such a requirement in respect of special restaurant licences. If a huge extension is added on later it would not necessarily follow that that huge extension is licensed.

I share the concern of Deputy Barrett and I could see the difficulties which could arise if a large extension was added on to a restaurant following the granting of a licence. The licence will specify where drink can be taken but because of what the Deputy has said I will have this matter examined between now and Report Stage. I would be obliged if the Deputy would withdraw his amendment.

To the best of my knowledge, the entire yard of a licensed premises is also covered by the licence. It is possible for people to be caught by the Garda out in the yard.

Amendment, by leave, withdrawn.

We will now deal with amendment No. 11 in the name of Deputy Cooney who does not appear to be in the Chamber at present.

I think Deputy Cooney just wanted to discuss the amendment and did not intend to press it.

Will the Deputy formally move the amendment?

I move amendment No. 11:

In page 6, line 34, after "premises" to insert "or the number of previously granted special restaurant certificates in the neighbourhood".

The purpose of this amendment would appear to make the number of special licensed restaurants in an area a ground for objection to the granting of a new such licence by the court and I cannot agree to the court having the power to refuse the granting of a special restaurant licence on such a ground. Restaurants often cluster in certain areas in towns, often bringing business to one another as a particular area acquires a reputation for good eating out facilities. I would also have no objection from a public order point of view to having several such restaurants in a particular neighbourhood. At the end of the day, and I am sure the Members of the House would agree with me, supply and demand will determine the number of restaurants in any area and I am quite happy with that. Therefore, I think the amendment should not be accepted.

Amendment, by leave, withdrawn.
Amendment No. 12 not moved.

I move amendment No. 13:

In page 6, line 35, after "is" to insert "reasonably".

May I suggest, subject to the approval of the House, that amendments Nos. 13 and 15 be discussed together. They would involve a rephrasing of subsection (2) and, in a sense, they are inter-related.

Deputy Taylor suggests that amendments Nos. 13 and 15 be taken together for discussion. Is that agreed? Agreed.

My amendment, No. 13, asks that the word "reasonably" be inserted between the words "is" and "satisfied"; in other words the subsection would read:

Where in relation to a restaurant the Board is reasonably satisfied that——

In other words the board must act reasonably in arriving at a decision as to whether they will grant a certificate. We say here that the board will grant a certificate but one might well ask: what is the reality of the circumstances? The reality is not that all the members of Bord Fáilte will travel down and look at a given restaurant. The reality is that one person, an inspector or perhaps one member of the board — I do not know — will go and look at a restaurant. We must be careful here that his level of satisfaction is a fair, objective and reasonable one and not subject to his whims or notions. It is fair that the word "reasonably" be inserted to ensure an objective standard and balance in the very important decision involved. When one thinks about it, the livelihood of that restaurateur may be at stake as a result of this decision. It may well be that unless he gets his certificate he may have to close his restaurant, it may not be viable or competitive. Therefore, it is a very important matter so far as the restaurateur is concerned. It could mean the difference to him as to whether his restaurant would continue to be viable or would not be able to compete and would fail. I would hope that the Minister would agree to insert the word "reasonably" to ensure a level of objectivity.

In my amendment No. 15 I am asking that the provision about regulations made by the Minister for Tourism and Transport on the conditions that have to be met be deleted. I want to say this about the generality of bringing in ministerial regulations. Very often in this House we go too far on this issue. Perhaps the parliamentary draftsmen have an idea that one cannot enact any Act of the Oireachtas without providing for ministerial regulations. One can. We go too far on this. Every measure we look at says that the Minister may make regulations on this, that and the other. The volume of regulations is becoming massive; it must be a factor of 100 or 1000 of the legislation that emanates from this House. I do not deny that it is necessary in many cases, of course it is, but I do not think we should allow ourselves to get carried away by the issue.

The Minister has set out in subsection (2) (b) a number of very well thought out conditions which I have read carefully, as I am sure have other Members. They are a very fine, broad set of conditions. They cover every conceivable aspect of what is reasonable to enable a Bord Fáilte inspector to reasonably determine what is required. I will just go through them briefly. For example, he must be satisfied that a restaurant is well equipped, well furnished and provides comfortable seating in the dining area and waiting area. That is comprehensive so far as that aspect is concerned. Second, he must be satisfied that the restaurant is operated by a competent management and staff and third provides a high standard of catering. That is all very good. The fourth requirement is that there must be at least one member of the staff who holds a recognised qualification in cooking or has sufficient experience in cooking to prepare meals of a high standard — that is first class and ideally meets the bill. The fifth requirement is that the restaurant maintains a high standard of hygiene. Those conditions are well and comprehensively set down. Why do we have to take on ourselves here and hand to the Minister the power to bring in other regulations of which the House would know nothing, would never realistically have a chance to debate — notwithstanding the saving clauses — because we all know what is the reality, particularly when the Minister proposes to arrogate to himself the power, in section 12 (2) (e), which is one of the most remarkable conditions. There are certainly some delusions of grandeur there. Having listed out certain parameters earlier on hygiene, catering, management, staff and so on, this subparagraph reads

(e) any other matter which the Minister for Tourism and Transport considers to be necessary or desirable.

That is some wide-ranging power the House is being asked to give — any other matter at all, no matter what he, the Minister, considers necessary, he may being into law without any realistic reference to this House. With all due respect to the Minister that is over-reaching himself.

The conditions required for qualification for a Bord Fáilte certificate are well set out there and cover every possible range of requirement. That adequately meets the position. It appears to me that the need for further regulations to cover any other matter whatever that the Minister thinks up, without reference to this House, is not necessary. I contend that, if anything else arises, he should come back to the House and seek that power.

With regard to amendment No. 13, I do not accept that the insertion of the word "reasonably" in the opening line of section 8 (2) would add anything to the sense of the provision as it stands. Indeed I am convinced that it would introduce an element of uncertainty. It might suggest that, if the board were not fully satisfied that the requisite standards were maintained, they might still issue a certificate.

With regard to amendment No. 15, I should say that its effect would be that the decision as to whether a given restaurant was of an acceptable standard would be left totally to Bord Fáilte. That would be the effect of that amendment, without any reference to regulations made by the Minister for Tourism and Transport under the provisions of section 12 (2) (e).

No, it would be by reference to the conditions laid down in section 8.

No, it would not. I might refer the Deputy to the provisions of section 8 (2) (b) which says:

(b) in case no such regulations are in force,...

So it will be only in the case of regulations not being made that the conditions set out would apply. In my view it is clearly necessary, not merely that minimum standards for regulations should be prescribed, but that every interested party should be in a position to know what are these standards. Clearly that objective would be best met by way of regulation.

The effect of Deputy Taylor's amendment would mean it would be a matter for the board to decide the standard to be met in every case but we will spell them out much more clearly in these regulations. Deputy Taylor knows as well as any other Member of this House that these matters are not beyond discussion in this House because any Member of the House may move their annulment within so many days and have the matter discussed here; it has happened before.

In Private Members' time?

Not necessarily so.

Is the Minister guaranteeing us Government time for discussion of the issue?

Certainly the Minister would be favourably disposed to a proper and orderly discussion of the question of an annulment of these regulations if the circumstances arose.

I have no doubt but that, in effect, Bord Fáilte would establish their minimum standards. Obviously it would be in everybody's interests — particularly those of the restaurant owner — that the standards to be complied with would be laid down in statutory regulatory form. I see no reason in the world for the change suggested by Deputy Taylor in his amendments.

Is Deputy Taylor pressing his amendment?

I really do not appreciate the Minister's point at all. I do not know exactly what additional requirements the Minister will introduce by way of his regulations. If my amendment was adopted the statute itself would provide that a restaurant has to be well equipped and furnished. It appears the Minister will bring in regulations to deal with equipment and furnishing. I am trying to imagine what might be contained in these regulations; for example, that the colour scheme has to be suitable to the eye, that the chairs had to have a cushion depth of, say, two inches. If there is a ground of reasonable objectivity provided by the insertion of the word "reasonably" those conditions are also set out in section 8, which is the right and proper place to do so. They are set out and my amendment does not delete those conditions, not at all. Rather it highlights them, rendering them the over-riding conditions by which Bord Fáilte would have to be reasonably guided. One might well ask: why did the Minister bother inserting them at all? It is right and proper that they should be set out in the statute and the Minister has rightly and properly done that. The conditions which a restaurant would have to meet with regard to furnishings, equipment, seating, competent management and staff and so on, are set out and I cannot see how much further regulations will advance this issue because these conditions are spelt out already in section 8.

That is the trouble. They are not spelt out but they will be spelt out properly and fully in very specific detail by way of regulation.

What more can be spelt out about furnishings — the colour of the curtains or whether they are lined? I think this has been borne out of the concept that we must have ministerial regulations for everything, whether or not they are necessary. I accept that they are necessary in many cases but when the Minister has gone to the trouble of laying down the parameters what is wrong with inserting the word "reasonably"?

If it is left to the satisfaction of the board they might say: "We are not satisfied with this restaurant". As I said, it is not the board who will decide that. I do not know how many members are on the board of Bord Fáilte but let us say there are ten members. They are not going to go down to Mr. Jones's restaurant to check out whether it should receive a certificate. Probably not even one member of the board will go down to the restaurant. An inspector will go down to the restaurant and it will be on his say so that the very important decision as to whether a certificate should be granted will be made. It will be done on the say so of one inspector in much the same way as an inspector in An Bord Pleanála appeals hears all the oral evidence and so on. The members of An Bord Pleanála who makes the decisions are never seen at these hearings and the same thing will happen in this case. An inspector who is not a member of the board will check out the restaurant. The real question is whether the inspector will or will not be satisfied that a restaurant meets the requirements. That is what will happen and that is why I say the element of reasonableness should be introduced into it. Why should an important decision, perhaps affecting a man's livelihood, in regard to obtaining a certificate be decided according to the whim of one inspector? Why should he not act reasonably and objectively in coming to that decision rather than being guided by his own personal whim?

At the end of the day I cannot see how the regulations are going to be any more definitive on matters such as the operations of a competent management and staff. When the staff see an inspector coming in to a restaurant they will, no matter what they are in reality, be very competent and efficient while he is there. It is fair that we should insist on the element of reasonableness and no doubt a court may deem it to be there even though it is not there. With the insertion of one word we could spell it out and assist a court, if a case goes to court on this issue, by saying that a person was adopting an objective standard and not his own personal foibles or views, which might well differ from inspector to inspector. There might be a half a dozen inspectors employed by Bord Fáilte to check out restaurants and decide whether a certificate should be granted. One inspector might have one idea on what is a high standard of catering and another inspector might have a different idea. Some balance ought to be achieved here and I ask the Minister to consider that.

I am anxious to help any Deputy who is trying to improve the Bill but I honestly do not see much need for Deputy Taylor's suggestion. As he hinted a moment ago in a subordinate clause, and as a lawyer, he knows perfectly well that even though a statutory power does not explicitly require the person on whom it is being conferred to exercise it reasonably and objectively, the courts take the view, and have for decades taken the view, that it must be so construed on the simple supposition that this House does not create powers with any other object in view other than they should be reasonably applied.

An inspector's set of perceptions are to some extent no doubt born into him and conveyed to him by his parents because no two people grow up in houses where exactly the same standards of order or cleanliness apply. They may differ only minutely but everybody has a different perception of where the line is to be drawn which will separate that which is clean from that which is not. That is unavoidable in human affairs and it is even unavoidable on the judicial bench. As Deputy Taylor knows better than I do, no two justices will take exactly the same view in exactly the same case on the same set of facts or if they do it will be an accident. That is why the public occasionally get excited and upset because a judge or justice takes what to them seems a very perverse view of something. It may be perverse but that does not mean it is not the result of an honestly exercised discretion. All the Dáil and Seanad can do in conferring a jurisdication or power upon a judge, court or authority is expect that it will be honestly and reasonably applied but there can be no rational expectation that it will be applied with a mechanically measurable consistency. That is not given to flesh and blood to command.

If I thought there were reasons to suppose that inspectors, in spite of that being the law, were nevertheless going to run wild I would be inclined to urge the Minister to make sure, at an official level, that that did not happen. However, since it would be against the law for an official to apply capricious views——

Personal views.

—— of what was in conformity with this or that kind of standard, I do not think this amendment is necessary. It is against the law as it stands without the insertion of the word "reasonably". I would be glad to put in a word for Deputy Taylor's amendment if I thought it would improve the Bill. I often used to make such points when I started off but over the years and, in particular, during the past ten or 15 years, the law on this has become so solidified that there is scarcely anything less in doubt than that a statutory power must be exercised within the four corners of natural or constitutional justice, as it is called now, and one of the many aspects that term includes is the aspect of behaving impartially, reasonably and with an eye to the objects for which the power was conferred on you.

Deputy Taylor mentioned specifically section 8 (2) which states "in case no such regulations are in force, the restaurant —" and it lists the conditions required in about eight to ten lines. I mentioned in reply to Deputy John Kelly earlier today that we have draft regulations practically completed. They are not completed yet but they are not far from it. There are seven and a bit pages in the regulations clarifying exactly for those intending applicants the conditions they will have to meet before they apply. This is an effort to make it easier for them to understand what is required of them and it will not be left to the whims of one inspector to say whether they are out or in. They will know exactly what they are entitled to and what is required of them so that they can best make their case for their application.

I want again to say to Deputy Taylor that the publication of these regulations will be of great benefit to all those who are interested in applying for licences because they spell out in great detail what is required of them. The House will have an opportunity of discussing them and to propose their annulment. If the Deputy is afraid he will not get an opportunity of discussing them I will use whatever good offices I have with my Whip — and I do not know how good they are — to see to it that there will be a discussion on them. I would not object to it because it is something we are all interested in. There is no political party divide on anything in this Bill, nor should there be.

We have done our best to find some but none have turned up so far.

There is not; nor will there be.

Amendment, by leave, withdrawn.

I move amendment No. 14:

In page 6, subsection (2), line 35, after "satisfied" to insert "including inter alia by annual inspection”.

What I intend here is that it be made quite clear that before Bord Fáilte issue a renewal certificate the premises are inspected annually. That is necessary so that standards can be maintained. I would also be anxious that the taxpayer would not be asked to fund the cost of these inspections. Would it be in order for the regulations the Minister is making to include a provision that the cost of inspections would be borne by the applicant? If it is not possible to do it that way, perhaps the Minister would consider introducing an appropriate amendment on Report Stage to see that that is done. It is only reasonable that those seeking licences should carry the cost.

I thank Deputy Barrett for his contribution on this amendment. The regulations will provide that the cost of inspections will be borne by the applicant. If some poor restaurateur from Dingle is to bear the full cost of a journey from Dublin to Dingle——

I think the restaurateurs in Dingle are very prosperous.

Let us go to Waterville or anywhere else. The point I am making is——

They would be doing a number at the same time.

What about Askeaton?

I doubt if we would get anybody there. We could not afford these luxuries in working class constituencies. It is a matter that we are all conscious of. The cost will have to be borne by the applicant and it is a matter for the board to ensure that the inspector will inspect as many in the region as possible rather than charging somebody £200 to £500 for a visit; nobody would want to see that happen.

With regard to the amendment it will be noted that under section 12 (2) the intention is that arrangements for the inspection of restaurants in connection with the grant of a Bord Fáilte certificate is a matter to be regulated by regulations. I am satisfied that this provision is appropriate as such arrangements can be satisfactorily made only in the light of the contents of the regulations themselves, that is, the number of and the average standard in restaurants applying, and of course the staff of inspectors available to Board Fáilte. I am confident that the board will arrange for such inspections as are necessary to ensure that certificates will not be granted or renewed if the restaurant concerned falls below the requisite standard.

I note that Deputy Barrett's amendment calls for an annual inspection. It would be my intention to ensure, by way of regulation, that there would be more than just the one inspection. I think that would be Deputy Barrett's intention too. Certainly there would have to be an inspection before a renewal application would be decided on and I would like to think that inspections would be carried out at other times by the Bord Fáilte staff during the course of the operation of the licence. If the Deputy agrees that we should cover this by regulation I feel that this would be the best place to cover it.

What I want to be satisfied about is that we are not just going to have a situation where certificates are automatically renewed without somebody being satisfied that certain standards are being adhered to.

I agree totally with Deputy Barrett. Provision will be made in the regulations to cover the point raised by him.

I agree with what Deputy Barrett says in regard to the cost of these inspections but I do want to tell the Minister that, in my opinion anyway, if he intends that that should be so and if he intends that the regulations regarding standards should provide for levying a charge on the premises that are being inspected, it will have to be said in this Bill that those regulations may so provide. There is a case on this subject, already nearly 70 years old, Murphy and the Waterford Corporation, that appears rather analogous to what we are talking about.

Section 12(2) (d) provides that regulations may make provision for:

the inspection, and certification, of such restaurants by the Board and the fees to be payable in respect of such inspection or certification.

I agree in theory with the thrust of the amendment Deputy Barrett has introduced here but my concern is that Bord Fáilte simply will not have the numbers of inspectors necessary to carry out this work. Presumably it will mean an increase in work because this is not being done at present. If we are to keep control on it we need to make sure that these places are inspected. The Minister has referred to the fact that he is very keen to have this done also. I just would not like us to leave open and uncatered for a situation where there would be a wish to have an annual inspection or a wish to have more than an annual inspection.

It will be much stronger than that. It will be laid down in the regulations that it must be done. It is not just a wish or an intention or a hope or a desire. It will be done.

I understand that the Minister for Justice and Bord Fáilte will, presumably, work under the auspices of the Minister for Tourism and Transport. I just wonder where the tie-up happens.

That is there. I mentioned already this morning that the regulations are made by the Minister for Transport and Tourism but with the consent of the Minister for Justice. I have kept a hand in on that to ensure that it goes the right way. I take the Deputy's point and I recognise the difficulty as expressed there about the availability of staff but it will have to be done. There is no question of these licences being renewed on a "pay your fee and get your licence" basis. That would defeat the purpose of the Bill.

With 250,000 people unemployed it would give somebody a job.

What about the public service embargo?

I assure Deputy Barrett that it will be covered by regulation.

Amendment, by leave, withdrawn.
Amendment No. 15 not moved.

Amendments Nos. 16, 28 and 29 may be taken together.

I move amendment No. 16:

In page 6, subsection (2) (b), to delete lines 39 to 49.

Amendment No. 16 is consequential on the amendment of section 12 by deleting the word "may" and substituting the word "shall". I note that Deputy Colley has a similar amendment. If it is to be obligatory for the Minister to make regulations there is no need to have subsection (2) (b) of section 8 included. I sincerely hope that the Minister can, on this occasion, see his way to accepting the amendment that Deputy Colley and I have down in relation to section 12 (1) in line 46 substituting the word "shall". This is important because, as the Minister said, the regulations that have been drafted are very comprehensive. That is the way it should be and if that is the case I see no reason for including section 8 (2).

Section 12 as it stands empowers the Minister for Transport to make restaurant standard regulations. The effect of this amendment would be to oblige him to make those regulations. This question was raised when the Bill was being drafted and the advice received from the Attorney General was that it was not appropriate to impose an obligation on the Minister concerned to make regulations in such circumstances. I am advised by the Attorney General that the word "shall" would not be appropriate. I repeat that the intention is that these regulations will be made before Part II of the Bill is brought into operation.

Regarding the proposed amendment to section 12 (2), it is not clear that this would add to the sense of the subsection as it stands. The effect of subsection (2) is that the regulations may make provision for all or any specified matters. To say that the regulations shall make provision for all or any of the specified matters would not alter significantly the scope of the provision. The point raised by Deputy Barrett and by Deputy Colley was raised by us with the Attorney General. The advice he gave us was that it was not appropriate that the word "shall" should be inserted rather than the word "may".

Regarding amendment No. 16 in the name of Deputy Barrett, I want to make it clear that the intention is that Part II of the Bill which relates to special restaurant licences will not be brought into force until the relevant standards regulations have been made by the Minister for Tourism and Transport. The provision covered by the Deputy's amendment relating to the case where no such regulations were in force was inserted for a technical, drafting reason. This is because section 12 empowers the Minister for Tourism and Transport to make the necessary regulations. I have been assured that for technical and legal reasons it would not be appropriate to say that the Minister "shall" make the regulations. Accordingly paragraph (b) of subsection (2) of section 8 was inserted to cover the theoretical case where regulations had not been made by the Minister for Tourism and Transport. I can assure the Deputy and the House that these provisions will not be brought into force until the regulations have been made. I hope the Deputy will consider that and perhaps withdraw his amendment.

I do not know what reasons the Minister has in mind but I can think of two instances, admittedly unlikely to occur, where it might be necessary to have the fall back protection of the subsection we are talking about. One would be — I do not ever remember it happening — where this House annulled regulations which were in force. Suppose the House is given power by a section in the Bill to annul regulations and if such an annulment took place and if there was a delay, for whatever reason, in getting new regulations in place, there would be during that period — which perhaps could be a tourist season — no regulations in force, and then there would be no form of control unless these provisions were there. The other slightly less unlikely instance would be where the High Court declared the whole body of such regulations void for some reason, for example, that the person who purported to make them was not a Minister but was dressed up as a Minister and masquerading as this or that. Such things have happened. We had a case not too many years ago when somebody who was not masquerading but had been in all good faith made a district justice and was not qualified to be a district justice. A question mark hung, therefore, over things which he had done, including the conviction imposed by him on the person who successfully challenged his appointment. These would be two settings — unlikely and marginal though they are— in which I could see some reason for that subsection to remain.

I would be in agreement with Deputy Kelly on amendment No. 16. Even if Deputy Barrett's amendment and my amendment which propose to substitute the word "shall" for "may" were there I could see good reason for leaving in 8 (2) (b). However, I am not convinced by what the Minister has said about the reasoning for keeping the word "may" rather than "shall". At the very least we should have some provision in the Bill whereby it would provide that the regulations shall come into force before the commencement date. I understand the Minister saying they are in draft form and they are in preparation and it is the intention that they should be in force before this part of the Bill is brought into operation, but in order to tidy matters up it would be reasonable to expect that it would be incorporated in the Bill.

I cannot for the life of me understand why the Attorney General can say that the word "shall" could cause difficulties. It is either an obligation or it is not. As it stands it is discretionary for the Minister for Tourism and Transport to make regulations. If the Bill is passed as it is presented here now the Dáil has no power to impose on any Minister obligations to make regulations. All we are saying is that there will be an obligation on him to make regulations. I cannot see what legal difficulties that can cause.

Having listened to what the former Attorney General said, I thought he made my case very well. I understand what the Deputies have in mind and I can tell them that it is not the intention that the regulations will be made before Part II of the Bill is brought into operation. I think that is what we all want. All Members are anxious that the regulations would be made whether it is "may" be made or "shall" be made by the Minister for Tourism and Transport before Part II of the Bill is brought into operation. I think that would meet everybody's wish.

That meets the situation.

Between now and Report Stage if I can find some way to deal with that I will do it, because there is no argument between us on this matter. I am only giving, as best I can, the advice of the Attorney General and we must have regard to it.

I cannot recall ever seeing the word "shall" used in that context.

I have not either. We have had discussions with the Attorney General because the same point was raised by ourselves and this was pointed out to us. In an effort to deal with the matter as fairly as we can, if the Members would agree to give me the opportunity to see what I can do to provide for their intention on Report Stage I will do it if I can.

Amendment, by leave, withdrawn.

I move amendment No. 17.

In page 7, subsection (2) (b), line 2, after "grant" to insert "to the person".

This amendment was suggested by the draftsman in order to put it beyond doubt that the Bord Fáilte certificate is granted to the owner and occupier of the restaurant who has made application for the certificate.

Amendment agreed to.

I move amendment No. 18:

In page 7, between lines 12 and 13, to insert the following subsection:

"(5) In the event of a refusal by the Board, of any application for a Bord Fáilte Certificate to grant the said Certificate, an appeal against that decision by the Board shall lie at the suit of the applicant to the District Court.".

The decision that would be made by the board here as to whether to grant this certificate could well be a matter of supreme importance to very many restaurant owners who would seek to get such a certificate. As I said, it could make the difference between them being enabled to remain in business or not being able to continue in their business by reason of competition perhaps from an adjoining restaurant that would have a special restaurant licence.

While the Minister has indicated he is going to make detailed regulations and all the rest of it, and no doubt he will and they will be as specific as possible, at the end of the day when all those factors are taken into account there is an overall decision still of the Bord Fáilte inspector or Bord Fáilte themselves as to whether the restaurant meets the overall standards required. It is a subjective decision on the standard of catering and so on. There is still the decision to be made and that is in essence a judicial decision, a matter of fact, whether this restaurant meets the standard or does not. If that inspector holds against the person and says, "Sir, I am sorry, your restaurant does not meet the standard", are we saying to him that that is the end of the story, that so far as obtaining his certificate is concerned he is out and cannot dispute or argue or discuss further with someone in a judicial capacity whether his restaurant meets the standard? There must be some basis for a judicial appeal here and it could well be that within constitutional requirements there should be because this decision could affect the livelihood of very many people.

As we know, under the Constitution judicial decisions overall have to be made by judges of a court, the District Court, Circuit Court or whatever. It may not arise very often, but it ought to be open at least that if a person is aggrieved that he has not got a fair decision he has this right to appeal. Maybe an inspector in one case will get it wrong. Judicial decisions are often wrong. Even High Court judges get things wrong and are overruled from time to time by the Supreme Court, so it follows that Bord Fáilte can get it wrong on occasion. Whether they get it wrong or not there must be at least one avenue of appeal open to the restauranteur to take it further and argue before a district justice, call evidence about it and so on and get an impartial decision on this appeal. The appeals procedure is intrinsic to our whole system, and rightly so. It would be dangerous and damaging to say that on the decision of this inspector alone — which is what it amounts to — the important matter of a man's livelihood perhaps will be determined without his having any further recourse whatever.

I sympathise with Deputy Taylor in what he is trying to achieve with this amendment. I am not certain this is the way to do it but there should be some appeal. I am not certain whether there is in existence a form of appeal in other similar circumstances where decisions are taken by certain boards to grant or not grant certificates, but we should have regard to this and make sure it is available to an applicant for a certificate under this Bill. Such a decision is akin to a judicial decision and we would have to have regard to previous cases on that.

Deputy Taylor's amendment does not appear to relate to an appeal on legal grounds to the court but rather seems to envisage that there should be an appeal to the court in relation to the findings of Bord Fáilte as to whether the restaurant in question complied with the requisite standards. A provision of this kind would probably have the effect that there would be an appeal in every case to the District Court against a refusal by the board to grant a certificate. This means the court would have to become the inspecting body in such cases to decide whether the restaurant in question was well equipped, provided the high standard of catering and so on. This would be an inappropriate function for the court and clearly a matter that should be left to decisions by Bord Fáilte on the basis of the professional expertise available to them. That is the most sensible course.

It is wrong to expect a district justice to be able to make decisions on these matters because they are not judicial matters at all. They are being decided on by Bord Fáilte on the basis of their professionalism and the expertise available to them. On examination of the application they would see that the requirements of the applicant as laid out in the regulations are being met or not. It is very wrong that the district justice would be asked to do that.

I agree with Deputy Colley to a certain extent. I see what Deputy Taylor is getting at, but getting into the District Court there may be an appeal to the Circuit Court and so on. In effect, what is being decided is a question of fact, not of law, and the people who are expert in it are the inspectors of Bord Fáilte, not a district justice. Probably Deputy Taylor and most people around here are well aware that district justices are over-burdened with technical matters from time to time and really they were not appointed to become involved in this.

If Bord Fáilte for some reason were not able to give a certificate it would then be up to them to tell the applicant why he did not come up to their standards and at that stage the person would be in a position, it is to be hoped, to bring his premises up to the required standard in a short time. I put forward for analogy of the Planning Appeals Board, An Bord Pleanála. While they deal with appeals from the local authority they also are the final arbiter in relation to planning matters. That is on the same lines as this matter here. Bord Fáilte make the decision and that is the end of it. It is open to the applicant to bring his premises up to the required standard.

I agree, respectfully, with what the Minister and Deputy Ahern have said and for the same reasons. There are administrative functions which are entrusted to people who are not judges and who are expected to be expert in the application of those standards. Courts are not expected to be experts in the application of standards of that sort. Because Ministers for Local Government in the old days were finally seen by the Dáil, the Seanad and Government as not being expert in the decision of planning appeals the thing was confined at the appeal stage to a specially selected board, so carefully selected that the Government of the day would not even trust themselves to appoint the board but set up a special authority who would be a kind of buffer between themselves and the planning appeals board.

There is really everything in what the Minister and Deputy Ahern said here. Virtually every refusal would be appealed instantly in the District Court to a justice who is not equipped to assess these matters, to whom every step of the process of inspecting and licensing would have to be explained and who would be asked then to exercise his layman's judgment on what is clean for adequate purposes in the restaurant world, what is orderly, what is tidy and so on. He might have no other training in the matter than what we saw in his own kitchen. I need not embroider the theme, but I think the court would be quite an inappropriate forum. If it is desired to have a process of appeal against Bord Fáilte — although we have enough boards to sink a battleship — it should be to an authority constituted by people who know something about the standards which the original inspector was commanded by this House to apply.

If it is suggested that the inspector, or Bord Fáilte acting on the inspector's report, have behaved unreasonably, that they have not listened to something the applicant said, that they have not given him a chance to meet an objection they had up their sleeves and if there is a file in the building saying that this man is to be screwed because he got away with murder two years ago, then the applicant, if he has grounds for a grievance, can seek a remedy in the High Court. That would instantly deprive Bord Fáilte of their jurisdiction either to issue or to refuse a licence. It would make their entire proceedings null. The District Court is not the appropriate place to deal with the question of whether a zinc fitting has been adequately cleared of residue.

I am surprised at the comments on this issue, particularly by Deputy Kelly. Are we really saying that decisions on matters of fact — not law — which are determined by all courts on different issues by district justices and other judges will be in the hands of one inspector of Bord Fáilte? Will there be no recourse to any other court or tribunal? It is no good saying that district justices and judges are not competent to deal with matters involving expertise. That is a remarkable thing to say because they come to decisions on matters of expertise — and are called on to do so — every day of the week. Decisions could involve the value of premises, medical evidence and so on. It is interesting to hear the Minister say that he places his trust in experts. If he went down to the courts some day and heard two orthopaedic surgeons, on opposite sides of the fence, giving contradictory opinions he would not have such wonderful faith in experts. It is the judge or jury who determine which of the experts is accepted.

You cannot leave the applicant on an important issue affecting his livelihood without recourse to some appeals procedure. That would be most unjust. I do not mind whether it is a tribunal or a panel of experts otherwise constituted. I put down the District Court because it is simple, easy, available, cheap and quick. If the Minister says he intends to set up another tribunal I do not mind. Deputy Ahern mentioned An Bord Pleanála and he said it was not composed of judges. However, I think a judge is involved on the panel——

A retired High Court judge is on the panel.

That does not make it a court.

I know it is not a court but it is an appeals procedure and if a person feels, rightly or wrongly, that he has been badly done by he can appeal the decision to a higher authority. He can have an oral hearing and call his own experts to give evidence before an independent authority who may be contradicted by the other experts as happens all the time in the court. However, a judicial decision would then be given and it is no small matter.

In a small rural area the inspector sent down might know the applicant for the certificate and indeed he might have a grudge against him. He might come to a biased conclusion and refuse the certificate. It could mean that the applicant would have to close his restaurant and give up his livelihood without any recourse to an appeal. It is totally unacceptable that a major decision of this kind should be left to one person and I am amazed that Deputy Kelly, of all people, would seek to uphold that position.

Professionals differ on all sorts of important issues. All the factors must be taken into account, the standard of the cooking, equipment and accommodation. The standards are laid down in the Bill and will be reinforced, no doubt, in the regulations. We are talking about big, standard restaurants. Professional experts who are competent to give decisions should be called in to give a second opinion. I know the Bord Fáilte inspector is also an expert but he is merely an employee. I respect his decisions but others might take a different view. He might recommend that an applicant should spend another £5,000 to bring the restaurant up to standard but the applicant might not have the money to do so. Perhaps another expert would have a different opinion.

If the applicant had recourse to an appeals tribunal the evidence on both sides could be heard and a decision could well be given that the Bord Fáilte inspector got it wrong. Are we saying that the Bord Fáilte inspector can never be wrong, that he will be spot on every time? Do we say that about district justices, Circuit Court judges or High Court judges? We do not, we admit they could be wrong. However, we are saying that the Bord Fáilte inspector can never be wrong. Of course he can and will get it wrong on the odd occasion just as the High Court judges get it wrong sometimes. Will we elevate him to a more superior position than the High Court judge? Do we really believe that his decision is so special it may not be appealed to any court or tribunal? If that is the case, I cannot accept it because it is totally unreasonable, illogical and unjust.

I wonder if Deputy Taylor is overstating the case when he says that the decision will lie in the hands of one person because the Bill states that the board must be satisfied. An inspector may inspect the premises and, if he is dissatisfied with them and does not issue a certificate, the applicant may apply to the board for a further inspection. The board must be satisfied, even if that involves all members of the board having to take a train trip to places like Tralee.

The Deputy should be realistic. She is aware the board will do what the inspector tells them.

It is unrealistic to look for appeals to a court of law on such matters because where there are unreasonable decisions there is a course of action open to the applicant. A later amendment, tabled by the Minister, is to the effect that steps to be taken within a specified period must be set out so that the person who is applying gets an opportunity to adhere to them. That is only right and just. I do not think there is a necessity to go into the court system for this.

On listening to Deputy Taylor for the second time I appreciate what I had missed hearing the first time or did not sufficiently concentrate on, the element of livelihood. There is this much to be said for his point of view; if the withholding of a certificate was a function which bore immediately on a person's livelihood one might argue that the power entrusted to Bord Fáilte went beyond that envisaged by Article 37 of the Constitution, that it was, first, an administration of justice and, secondly, that it was something being done in a matter which was serious and far reaching. In my view it will be necessary to show that this was an administration of justice, in the first instance, and that it was not limited or far reaching. They are two hurdles which Deputy Taylor's liberal enthusiasm, which in a general sense I must share, would find it hard to clear.

No modern State could operate if there was an appeal to the ordinary courts from every administrative decision made. Under the planning process, which Deputies Ahern and Taylor mentioned, it is true that a former judge is the chairman of An Bord Pleanála but that does not convert it into a court. It certainly gives it a high cosmetic value and, no doubt, makes its operations smoother because it has a chairman who is accustomed to seeing justice done but it does not make it into a court. I would imagine that a person who is impoverished and whose only asset is a house which as it stands is not worth very much but which would be worth so much that it could get him out of all his troubles if he got permission for a change of use, when putting up for decision by other citizens in a position of authority a question which is extremely important to him — it may be as important to him as a question of livelihood or a question of a choice of livelihood between somebody running one type of restaurant and a person running another — has no claim to have the technical aspects of that issue decided by an ordinary court. Of course, he can have recourse to the High Court if he is not fairly treated.

There is a whole battery of mixed powers here, some exercised by people who from first to last are not judges. Some of them are mixed functions like the old workmen's compensation system, but we are very far from the time when it was possible for the late Gavan Duffy, when he was at the Bar, to argue that there should be no such thing anywhere as an administrative operation entrusted to anybody except a judge sitting in a court. No State could operate like that.

I would be very sorry to lose whatever reputation I may have in Deputy Taylor's eyes for being a reasonably liberal character, if I enjoy that much standing with him, but I do not think there is a State — the pinker the regime gets the less it would be true to say of it — with any kind of independent judicial instance to adjudicate on peoples' rights. Even the most liberal bourgeois western democracy could not operate for a day if that was the case.

What is the position in relation to a restaurant that is closed down under the health Acts? Is there a right of appeal against the decision to close such restaurants? I accept that Deputy Taylor is genuine in seeking to protect the livelihood of people but we are not talking about closing down a restaurant but about not providing them with a liquor licence. There must be precedents for the closing of premises under the health Acts and I hope the Minister will be able to give us information in regard to them. If he is not in a position to do so, I respectfully suggest that he look at this between now and Report Stage.

I support Deputy Taylor's amendment and I cannot understand why there is so much opposition to it. We are referring to one individual, the Bord Fáilte representative. We must bear in mind that a licence is granted by our courts on the basis of a certificate signed by a representative of Bord Fáilte. Subsection (2) (a) provides for the making of regulations by the Minister for Tourism and Transport but I wonder why there is a need for subsection (2) (b) which states, "in case no such regulations are in force" and so on. A Bord Fáilte official may be very competent but not in a position to determine what standard of catering is required by the regulation.

Like a district justice.

A district justice is aware of the law and will act in accordance with it but in this section we are told about regulations that may be brought in by the Minister for Tourism and Transport. In my view it is unreasonable to ask a person who applies for a licence to rely on the recommendation of one person. As Deputy Taylor stated, such an individual may have had a difference with the person who is applying for a licence. There should be some form of appeal for a person who feels aggrieved.

It appears we are unduly worried about the Bord Fáilte official. That person will not decide for himself or herself whether a restaurant qualifies for a certificate but will be acting in accordance with the statutory regulations prepared to guide that official. The regulations will be clear to the person applying for the licence before he or she embarks on any renovations. That person will be in a position to take advice on what is required in his or her premises. If the Bord Fáilte official turns out to be so incompetent that he is unable to give a reasonable interpretation of the statutory regulation, it is open to the individual to go to Bord Fáilte and ask for his decision to be overturned. Bord Fáilte are in the business of licensing hotels, which are much bigger enterprises than the businesses we are talking about here. I do not know of any hotel which should be approved by Bord Fáilte and has failed to gain that approval. The people in Bord Fáilte will give advice as to what is required before any work is undertaken. Any reasonable person who wants to obtain an intoxicating liquor licence for his restaurant should not have the sort of problems being envisaged. There is some responsibility on that person to find out what is required before be spends any money.

I have listened with interest to the arguments presented. I would ask the Minister to consider for Report Stage some type of provision along the line Deputy Taylor has in mind. In the case of a person who has, say, ten bedrooms and a dispense bar, problems can on occasion arise with Bord Fáilte. They are doing a difficult job in that standards must be maintained. The vast majority of the staff of Bord Fáilte are most conscientious and diligent in the discharge of their duties. Sometimes, however, friction can develop between the proprietor of a premises and the Bord Fáilte official. I have been asked to arbitrate in such cases. Bord Fáilte are a lot bigger and more powerful then the owner of a licensed premises. The Judiciary are independent and impartial and——

Supposed to be.

It is recognised that they are. I would ask the Minister to consider some kind of safeguard in the interest of fair play and an impartial decision.

I appreciate the view expressed by Deputy Taylor but there appears to be agreement among all the other speakers that the way suggested by him for dealing with the problem is not the right or proper way. I suggest that between now and Report Stage I should consider the matter and see if in the event of a person being refused a licence he can be told the reason. Bearing in mind the extent of the regulations, he should be clearly told what needs to be put in order before he can get a licence. If the Deputy will agree to withdraw his amendment and let me work along those lines, we might be able to go part of the way towards meeting his concerns.

Does that offer soothe Deputy Taylor?

It does not quite meet what I have in mind. If a person is refused, the reasons for the refusal ought to be given to him, without doing any favour to anybody. That is a different matter to providing an appeals procedure, which I believe to be essential.

Deputy Kelly referred to the question of livelihood. I was approached by a person who runs a middle-of-the-road type restaurant and she told me of her position vis-à-vis this Bill. She said she could not afford £3,000 for a licence but that if she did not get it she would have to close down because her competitors would obtain a licence. In many cases a licence will mean the difference between staying in business and closing down. If nobody could get a licence there would be no problem, but if some people get licences and others do not the people who want to have a drink will know where to go.

Deputy Colley's point about Bord Fáilte does not impress me. The reality is that the inspector will give his report to Bord Fáilte and, in accordance with the usual secretive practice, the contents of the report will be secret. We all know that the decision at headquarters will be based entirely on what the inspector says. The inspector actually makes the decision. Deputy Cowen said an appeal against the inspector's decision could be made to Bord Fáilte. That is not provided for in the Bill. The applicant will not know the inspector's decision until he is told by Bord Fáilte of the refusal.

I am at a loss to understand why there is resistence to allowing an appeals procedure in such an important matter. It is a matter of such importance affecting the livelihood of people that it should not rest on the view of just one person. The standard of catering is one of the issues. No matter what the Minister provides or how much detail he specifies in the regulations, the inspector from Bord Fáilte will give his opinion as to whether the standard of catering is in accordance with the regulations.

If the Minister will consider before Report Stage introducing an appeals procedure of some sort, that will satisfy me. Otherwise it is my intention to call for a vote on this issue.

I would be very happy, if only because it would make Deputy Taylor happy, if we had an appeals procedure, provided if would not "lorry" the State with another authority with a stainless steel plate on the door, fitted carpets and an annual report designed by graphic architects.

A couple of the existing ones might meet the case.

When somebody applies for a certificate from Bord Fáilte and does not get it, the board must tell him why. Deputy Taylor is overstating his case somewhat when he says that the applicant will not be given sight of the inspector's report. He will not be given sight of the inspectorate's report, but the substance of what the board have against issuing the certificate and of the reasons for this must be made known to him so that he can have a chance either to challenge the opinion which has been formed to show that somebody has made a mistake or has not looked at something, or else to put the matter right. I take it for granted — I hope that the Minister will correct me if I am wrong — that if it is intimated to him by the board that a certificate will not issue and he asks why and is told that there is a population of cockroaches under the soup or something like that, he will ask if his application may be held on ice for a few weeks until he puts the thing right. Alternatively, even if he is shot down and a certificate is formally refused in black and white, he still must be told why it has been refused and, presumably, there is nothing to prevent him from reapplying a week later once he has carried out the necessary works. I quite accept that that does not amount to an appeals procedure, or perhaps even to a substitute for it.

It goes a long way.

However, it does mitigate in large measure the situation regarding loss of livelihood with which Deputy Taylor, quite rightly, is concerned.

We have reached the point where the Minister has indicated the extreme to which he would be prepared to go. Deputy Taylor, you indicate that you are still unhappy. Are you requesting that I put the question?

Amendment put.
The Committee divided: Tá, 14; Níl, 72.

  • Bell, Michael.
  • De Rossa, Proinsias.
  • Desmond, Barry.
  • Higgins, Michael D.
  • O'Sullivan, Toddy.
  • Quinn, Ruairí.
  • Sherlock, Joe.
  • Hcwlin, Brendan.
  • Kavanagh, Liam.
  • McCartan, Pat.
  • Mac Giolla, Tomás.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.

Níl

  • Abbott, Henry.
  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Briscoe, Ben.
  • Browne, John.
  • Burke, Ray.
  • Byrne, Hugh.
  • Calleary, Seán.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Coughlan, Mary T.
  • Cowen, Brian.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam.
  • Fitzpatrick, Dermot.
  • Flood, Chris.
  • Foley, Denis.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Haughey, Charles J.
  • Hilliard, Colm Michael.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Lynch, Michael.
  • Lyons, Denis.
  • McCarthy, Seán.
  • McCreevy, Charlie.
  • MacSharry, Ray.
  • Mooney, Mary.
  • Morley, P. J.
  • Moynihan, Donal.
  • Nolan, M. J.
  • Noonan, Michael J. (Limerick West).
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Swift, Brian.
  • Treacy, Noel.
  • Tunney, Jim.
  • Wallace, Dan.
  • Walsh, Séan.
  • Wilson, John P.
  • Woods, Michael.
  • Wright, G. V.
Tellers: Tá, Deputies Howlin and Stagg; Níl, Deputies V. Brady and Browne.
Amendment declared lost.
Section 8, as amended agreed to.
SECTION 9.

I move amendment No. 19:

In page 7, subsection (1) (b), lines 21 to 23, to delete "or such other amount as may stand specified for the time being in regulations made by the Minister,".

Before Deputy Taylor talks on his amendment, may I make a suggestion? I understand that we are not getting any additional time, which I regret in view of the fact that we have a number of amendments to complete and also in view of the fact that my Private Members Bill on underage drinking was withdrawn on the clear understanding that we would get time to debate it when it came forward as part of this Bill. Now we find that not alone will we not get the opportunity to debate that Bill, but there is the likelihood that we might not be able to debate it here this evening on Committee Stage. That is extremely unsatisfactory, and no way to do business. However, it has been agreed. The very minimum we should do is divide the remainder of the time between now and 10.30 p.m. so that every part of this Bill will at least get some airing.

I would agree to that. Perhaps the Chair would ask the Whips to do as Deputy Barrett suggests and that the Whips will meet and devise some time division for us.

Is it agreed that the Whips will consult and return with their proposals as to how best we can employ the remaining time?

In that regard, certainly the debate in both Private Members' time and on this Bill indicates that there is substantial interest in the area dealing with underage drinking. It would be appreciated if the Whips would bear in mind that that is a part of the Bill we would like to give a little bit of time to tonight.

I agree with that.

My amendment reads as follows:

In page 7, subsection (1) (b), lines 21 to 23, to delete "or such other amount as may stand specified for the time being in regulations made by the Minister,".

I think the Minister would have no difficulty in accepting this amendment because he told us this is exactly what the present position is during the course of the debate this morning. The House will recall that this section outlines the fee, £3,000, which would be payable on a once-off basis for a licence. The Minister assured the House this morning that there was no question of this fee being increased. He said it would be a once-off payment. That being so, I do not think the necessity for regulations would arise.

I accept there is a need for us to make more rapid progress but I would like to say to Deputy Taylor that this is a once-off fee for a first time applicant. Anybody who applies now would pay this once-off fee and no more but the Minister surely should have the power to adjust the fee in four years, six years or ten years time by way of regulation. Again, it would still be a once-off fee.

It was also understood from the debate this morning that there are many of us who could see this fee being increased within a much shorter period of time and not just in four years, six years or ten years time. There could be a need to review that figure either upwards or downwards in four months, six months, or 12 months.

That could only be done by way of regulation and if such a regulation incurred the displeasure of the House it could take steps to annul it but it is not the intention to increase the fee. It amounts to a once-off payment of £3,000 for a first time applicant but I am not too sure that too many people would argue that that would be the proper figure for a first time applicant to pay in ten years time. It is a question of giving the Minister of the day the power to adjust that once-off fee by way of regulation.

I am surprised an amendment has not been put down to adjust the figure upwards, a figure which I regard as being very reasonable indeed. The issuing of special restaurant licences so as to enable restaurants to sell intoxicating liquor would be a departure from the long-established principles that in order to obtain a new intoxicating liquor licence one would first be required to extinguish two existing licences. The present position is that a person who is in the trade and who wishes to start a new business in a premises which would meet the criteria set out in the licensing laws such as there being adequate demand and it being far enough away from existing licensed premises in an area has to go out and buy two existing licences which could cost anything between £14,000 and £20,000.

It seems in this instance we are being very generous indeed especially when we consider that there are already enough intoxicating liquor licences available for sale at present and before a new licence could be issued the person has to extinguish two existing licences. There are many licensed premises which have a very small trade and which are probably available for sale. I am surprised an attempt was not made to find out how many of those licences are available for sale so that some arrangement where-by——

I know Deputy Cowen has a reputation for being and making relevant contributions in this House——

Not usually.

——but as he is not living up to that reputation at the moment I was going to indicate he should confine himself to speaking to the amendment before the House.

If I am too direct it will become obvious my vested interest will be declared. I take the point which has been made, that this is a matter for the Minister to consider before Report Stage. I ask the Minister to consider increasing the fee of £3,000 because I think it discriminates against those who are already in the trade and who, if they want to buy another licence, have to buy two existing licences which would cost anything between £14,000 and £20,000. The figure in the Bill is regarded by the Minister as reasonable. Presumbly some people at the Cabinet table think it should be increased while others think it should be less and because of this the figure which has been inserted in the Bill is what is considered reasonable by those who considered the Bill before it was introduced into the House.

Like other members of my party, I believe the figure is too low. One of the reasons why the figure is so low is to enable us to cater for those restaurants which are not open 12 months of the year.

It would be considered too much of an imposition to ask them to pay more than £3,000 for a licence. I suggest that if they do not remain open 12 month of the year that they are making their living from something else. The person I am talking about is the ordinary person in the street who would like to see the figure raised above £3,000.

I rise to make one point which I think I have already made once today but I am now going to make it again because it is a very important point.

Is the Deputy advising the Chair that she is going to repeat——

Not in the same context. It is worth remembering that the licence issued under this Bill would be a special restaurant licence which would not be similar to the licence issued in respect of a licensed premises. It would be odious to make comparisons between the two and we would only get into difficulties if we continued along that road. I agree the Minister should have the right to increase or decrease the licence fee if things become wonderful in economic terms in this State and, being realistic, it is reasonable that the Minister would have the power to increase the fee at a future date. I would like to point out to those Members of this House who are attempting to mix up the two licences and the two establishments in question that there is a huge difference between a licensed premises which deals purely in drink and a restaurant which serves drink.

I would like to agree with much of what Deputy Colley has said. Any time I have heard Deputy Cowen speak, except on the occasion when he spoke on the divorce referendum Bill when it was very hard to know which way he was going to vote let alone on what he was advising everybody else to do——

I advised no one, not even the Deputy.

The Deputy spent about one hour and half doing so. On other occasions I find I agree with everything I hear coming from him but on this occasion I disagree with him. Deputy Colley's point is very well taken. We are not talking here about a drink licence. It is infinitely more valuable to have a licence which would enable a person to sell drink, as much as they can pack in during opening hours, than a licence which has attached to it a condition regarding the serving of a substantial meal.

I am not anxious to encourage more and more of those places which one sees written up about in the "Table for two" columns in the newspapers, where somebody airily talks about how they found it very good value at £74 for two. They are very often the same journalists who would, under another hat, write a scathing article denouncing people who send their children to boarding school when for the very same money that boarding school will feed, clothe, educate and provide sporting facilities for a robust 16-year old for two weeks. They will guzzle the meal down in two hours and say it was pretty good value.

I am trying to reorientate Irish people and their visitors into simple restaurants of a kind in which there is no pretentiousness with, if you like, scrubbed tables and disposable paper tablecloths of the kind which are common on the Continent, which I use constantly myself when there, restaurants which would serve a decent, clean, well prepared plate of bacon and cabbage with a pint of stout beside it and leave one with change out of a £5 note. That is what we need; we do not need the others. That facility is not a goldmine. A person who has that facility never will end up as might somebody who owns one of these enormous aircraft hangers which exist in the suburbs of Dublin, with 1,500 people sucking down brandies as fast as they can. I am sorry to disagree so emphatically with Deputy Cowen but I think Deputy Colley's point is absolutely correct; we are not comparing things which are similar at all.

We are doing something quite new and we must endeavour to strike some kind of a balance. I feel that a fee of £3,000 is about right. I am sure that the kind of place I am talking about that I would like to see serving decent, simple food, not pretentious — where one would get for a few pounds something which would fill one and leave one with the feeling that one had had something good or even unique — cannot be expected to pay an initial fee of anything substantially more than £3,000.

The question of the £3,000 as being the right amount for the fee does not arise for discussion on this amendment. What we are discussing is whether the Minister of the day should have power, by regulation——

Certainly, but what about the Deputy's apprehensions under that heading?

In fairness to Deputy Cowen I think Deputy Kelly is being very hard on him because Deputy Kelly did not have due regard to the way Deputy Cowen prefaced his remarks.

Deputy Taylor probably sees the need for the Minister to have power, by way of regulation, to adjust the initial once-off payment of the fee, thinking of circumstances that may arise in the future. I would ask him to withdraw his amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 20 and 21 not moved.
Question proposed: "That section 9 stand part of the Bill".

I want to repeat one point to the Minister which arose in the course of our deliberations during the day. I want to seek confirmation of the Minister's agreement that, within the year, if not shorter, the whole question of the fee will be looked at afresh either within the context of Deputy Cowen and others seeking its increase or the concerns of Deputy Colley and others about the businesses of people in occasional trade. I want to ensure that it will be kept under active review.

The Workers' Party are concerned about the overall impact this new licence may have on the established vintners' trade. We should like an assurance that if there arose a serious imbalance, on a regional or provincial basis, the Minister would increase the fee, or use it, as a leverage or means of controlling the introduction of these licences.

I do not want to repeat what I have said already. I have dealt with the circumstances envisaged by Deputy McCartan. The Minister would have the power, by regulation, to reconsider the fee and the Oireachtas would have power to annual any decision of the Minister and change his regulations if thought to be desirable.

The Minister agrees to keep the matter under active review?

I am obliged to the Minister.

Question put and agreed to.
SECTION 10.
Amendment No. 22 not moved.
Amendment No. 23 not moved.

I move amendment No. 24:

In page 7, line 35, after "situated" to insert "or any inhabitant of the parish or health authority within the meaning of the Health Act in whose functional area the restaurant is situated".

Section 10, as it stands, provides that a superintendent of the Garda Síochána may object to the renewal of a special restaurant licence on the grounds that the premises concerned have not been bona fide and used solely as a restaurant within the meaning of this Act. I would like to see the provision added there — as is contained in other licensing Acts that "or any inhabitant of the parish or health authority within the meaning of the Health Act in whose functional area the restaurant is situated". That is a reasonable amendment. I contend it should not be left solely to a superintendent of the Garda Síochána. We should endeavour to maintain consistency in the sense that, as that provision is contained in other Intoxicating Liquor Acts, it should be included in this Bill. I would ask the Minister to accept my amendment.

Is the word "area" missing?

The Deputy's amendment would then read: "or any inhabitant of the parish or health authority area within the meaning of the Health Act in whose functional area the restaurant is situated". In some cases that would comprise nearly three countries because the MidWestern Health Board covers counties Clare and Limerick and north Tipperary. I would like to draw the Deputy's attention to section 3 which states that this Act be construed together with other Intoxicating Liquor Acts and also to section 7 (2), by virtue of which a special restaurant licence would be deemed to be an on-licence for the purposes of the Finance Act, 1910. One effect of this is that the existing power to object to the granting of a court certificate being necessary before a liquor licence is renewed would apply also in relation to special restaurant licences. Under the licensing Acts, as they stand, there are some restrictions on the categories that may object to the initial granting of a liquor licence. Any member of the community can object to the granting of a renewal certificate. This would be the case in relation to the special restaurant licences. In the ordinary way such objections may be made on the grounds of the dubious character of the licensee, the manner in which the business has been conducted in the course of a year, or on the unfitness of the premises. In the light of that I suggest there is sufficiently wide scope, under existing law, for objection to renewal in such cases.

Then why is this section being inserted?

It is an additional provision to what is already contained in the Intoxicating Liquor Acts.

Surely a member of the Garda Síochána, under the existing licensing Acts, is entitled to object to the renewal of a licence?

He can, in fact anyone can object. There are a number of ways open to people to object. My argument is that what the Deputy is suggesting is not necessary, that there are already sufficient avenues open to anybody who may want to object.

Would the provisions of the existing Acts allow a member of the public to object on the ground that the premises concerned have not been bona fide and solely used as a restaurant?

My reading of this section, as it stands, seems to be more in keeping with some of the provisions contained in the Betting Acts, under which the person, if you like, who carries the right of a hearing or objection in relation to any of these applications will be the local superintendent of the Garda Síochána. Therefore, to some extent he will be seen to be the sifting authority from the point of view of the objector or that of the public generally. I have to admit I am not fully clear as to whether that is the procedural approach to objections to renewal of licences under the licensing Acts. But I am aware that, in relation to the Betting Acts, the person who has the right of audience and of hearing is the local superintendent of the Garda Síochána. He then decides, within his area of responsibility, what witnesses will be called, be they inhabitants or others in support of his objection.

My understanding of this amendment and its effect is that it will introduce that type of regime into the District Court hearing, if you like, giving the sole right of audience or representation to the superintendent of the Garda Síochána, leaving it to him, or her, to decide whether a particular local inhabitant would be called as part of his or her armoury in presenting his or her case of objection should that arise. If I am correct in that reading, it is a procedure that is worrying in some respects. Frequently local residents may have a reservation or an objection to the renewal of a restaurant or dancehall licence or the granting of the renewal of a betting licence. If that superintendent does not agree, he or she will have a right of veto over a person being heard in court. A more democratic approach would be that all parties, subject to the ruling of the district justice, would have the right to be heard. For that reason I would ask the Minister to clarify the position within the context of this amendment. For example, will it be the superintendent who will carry the day?

Not necessarily. Under existing legislation when applications for restaurant certificates are being lodged for licensed premises — this power is contained already in the 1960 Act — with regard to the provision that the premises be bona fide and used solely as a restaurant, as Deputy McCartan knows full well the Garda Superintendent does not have the sole right to object. Residents' associations may, of course, object to the unfitness of the premises. There is no question of anybody being kept out.

The question I put to the Minister was that if he did not make provision in this section can any other person, as I have specified, object on the grounds that the restaurant is not bona fide and solely used as a restaurant?

The answer to the Deputy's question is yes. Any other person may make an objection on the grounds of the unfitness of the premises. That is definitely provided for.

Section 10 refers to the District Court having an involvement. I have looked through the Bill, and I am sure I must have missed it, but I cannot see where the jurisdiction of the District Court is given on this issue. How does this come before the District Court? Under the renewal procedure how does this matter get before the District Court? Maybe I have missed it, but I do not see where it is provided for in the Bill.

It has to do with the renewal of licences.

Where is the jurisdiction to renew special licences?

It is in the District Court.

But where is it given in the Bill?

It is construed with the other liquor Acts.

Those Acts refer to different licences.

I refer the Deputy to section 3 (1) in page 5 of the Bill which states:

The Acts and this Act, in so far as this Act amends and extends the Acts, may be cited together as the Licensing Acts, 1833 to 1988, and shall be construed together as one.

That does not help because that just says they are construed together as one and they may be cited together but the other Acts make no reference at all to a special restaurant licence and, therefore, even though they may all be construed together, I cannot see that any jurisdiction is conferred there on the renewal question. The Minister ought to have a look at that.

I will have a look at it. I am advised that it is properly covered but I will have a look at it to make sure it is as I say it is and as I believe it is.

I was under the impression that the legislation we are now discussing would more or less fall into line with the existing legislation in regard to the provision of licences for the sale of intoxicating liquor and, as pertains to local public houses, they would be subject to sanction by the Garda Superintendent, the local authority and the health board. I was under the impression that it would more or less run on similar lines and I think that is the Minister's intention.

It is of the utmost importance that a premises which has a special restaurant licence would be—and I think this is the general intention of the Bill — bona fide and solely used as a restaurant and nothing else. I agree with the proposal that the Garda Superintendent would be entitled to object to the renewal of a licence. A superintendent is entitled to object to an ordinary publican's licence if the person in question does not conduct his business properly. On occasion he can raise objections.

Nobody is objecting to it.

I am in favour of this provision. The section states: "... the premises concerned have not been bona fide and solely used as a restaurant ...". It is important that care be taken to ensure that these restaurants are used as restaurants only.

That is why it is there.

I appreciate that. There is a lot of concern among the people who are engaged in the intoxicating liquor business and ordinary publicans whose family depend on this as a source of income and for their livelihood——

I am reluctant to interrupt any Deputy but I think Deputy Enright will appreciate he is not directing his thoughts specifically to the amendment before us.

I am in full agreement with it but the point I am making is that the restaurant must be bona fide used. This will allay the fears of a lot of people and I am glad this provision is provided in the section.

Amendment, by leave, withdrawn.
Amendments Nos. 25 and 26 not moved.
Section 10 agreed to.
Section 11 agreed to.
NEW SECTION.

I move amendment No. 27:

In page 7, before section 12, to insert the following new section:

"12.—The Minister for Tourism may make regulations prescribing the inspection and certification of restaurants for the purpose of the granting of the renewal by the Board of a Bord Fáilte Certificate.".

Section 12 is a strange hybrid section. It states: "The Minister for Tourism and Transport may, with the consent of the Minister...", that is the Minister for Justice. That is strange. Why does the Minister for Tourism and Transport have to prepare the regulations and then submit them to the Minister for Justice for approval? I do not know who is the correct Minister to do it but whoever the correct Minister is, it should be done by him and one Minister should not have to discuss the matter with another Minister who has a different brief.

The Minister for Tourism and Transport deals with matters such as accommodation, catering, hygiene, equipment and so on and this has the implication that all we are concerned about are tourists. Of course the tourist element is extremely important but I would have thought hygiene and matters like that would be of importance for us also. The standards for restaurants are being dealt with and I find it difficult to understand how the role of the Minister for Justice would come into that category. Perhaps the Minister for Justice is involved with such matters as the enforcement of opening hours rather than with hygiene and catering. I do not know if there are staff in the Department of Justice who would be——

Good at hygiene but not too good at catering.

Perhaps the consent of the Minister for the Environment——

At times I get confused.

——would be needed also. It seems as if the whole prison section of it could help out on this.

We could get the Army in to do the cooking.

I wonder how Bord Fáilte would recognise that from a standards point of view?

It is more expensive than some of the restaurants.

The section is worded to give two bites of the cherry. First there is the general statement — and I have a reservation about the two Ministers being involved. It should provide that regulations are made for standards for the grant of these certificates and for the running of these restaurants. That is fair enough. Then it is provided that regulations may be made in regard to various things which are listed. Why is it necessary to spell out these items in this way? If the generality is there as I have suggested in my amendment, namely, giving the Minister for Tourism and Transport power to make the regulations regarding inspection and certification, I would have thought that that should do, but the matter does not end there, subsection (2) spells out these aspects: equipment, furnishing, management, staff, catering, hygiene and so on. Then, as though all that were not enough, we come to the monstrosity of subparagraph (e). Not content with providing the generality in subsection (1) and spelling it out in (a), (b), (c) and (d), (e) includes any other matter which the Minister for Tourism and Transport considers to be necessary and desirable. That is some power for this House to devolve on the Minister. I remember many years ago reading a book on constitutional law dealing with the question of delegated legislation and the designation given to clauses as widely based as that was the "Henry VIII clause", indicating that so wide and so arbitrary was this power——

What about Alan Shatter's Bill?

We will talk about that another day.

(Interruptions.)

Is that really necessary? I do not think the House should adopt anything as widely based as that or give a power that widely based to any Minister.

It is either meaningless or unconstitutional.

It is one or the other. That is what is put up to us here and it goes too far.

I will make this other consequential point, and Deputy McDowell, I am sure, will be interested in this one in particular. It is proposed in section 12 that the Minister for Tourism and Transport may, with the consent of the Minister for Justice, make these regulations etc. Then, without prejudice to the generality of that, the Minister for Tourism and Transport alone now may make regulations on any matter that he considers desirable. For that, he does not need the consent of the Minister for Justice at all. The way this whole section is constructed, having regard to the power that is given, is an unacceptable mish-mash. That is why my proposal is to simply delete it and give a very short enabling power to the Minister for Tourism and Transport alone, without any dealings with the other Minister, to make the regulations in regard to inspection for the purposes of the Bord Fáilte certificate. That would be a simpler and cleaner proposition.

Section 12 as it stands is clearly a necessary provision enabling standards to be prescribed for restaurants which will qualify for the new special restaurant licence. The wording of Deputy Taylor's amendment is very general and it is not clear whether it will entail the making of such regulations. Section 12 proposes that the consent of the Minister for Justice shall be required for regulations fixing standards for the premises in question. This is clearly necessary since all these provisions relating to special restaurant licences are made within the scope of the Intoxicating Liquor Acts for which the Minister for Justice has responsibility and answerability to this House.

Deputy Taylor is wrong when he says that the Minister for Transport and Tourism does not need the consent of the Minister for Justice under (e). I would like to tell the Deputy that the Minister for Justice will still have to be consulted by the Minister for Transport and Tourism.

I wonder does he?

Most definitely. I might also add that this provision was very strongly recommended to us by the Attorney General's office as being necessary. The Deputy can rest assured that the Minister for Justice of the day who has to have answerability to the Oireachtas on the operation of this legislation must surely be consulted on all matters relating to his office.

The Minister is saying that any regulations he makes can come before the House and that poses a difficulty, particularly for the smaller parties such as the Labour Party, the Progressive Democrats and The Workers' Party, because the section dealing with that is section 24 which provides that the only way to get it before the House is to bring in a resolution annulling it within 21 sitting days. That can only be done in Private Members' time and the way the two big parties in the House have structured the affairs of the House now means that it could well be that 21 sitting days could pass without an opportunity for one of the smaller parties to have a motion annulling these regulations debated in Private Members' time. The Workers' Party do not have Private Members' time at all and are in a worse situation. I do not know how they could be expected to get a motion down on the subject at all. But even the Labour Party and the Progressive Democrats could now find themselves in the position where they would not be able to get a motion in within 21 sitting days, so far apart are their allocations of Private Members' time. Even if it were possible, it is very unfair that the very meagre allocation given to the Progressive Democrats and to the Labour Party should be taken up for the purpose of debating or possibly annulling the Minister's regulations made under this section or any other section.

There is a real problem about this and that is why all provisions dealing with the making of regulations particularly now, since the alteration in the arrangements for Private Members' Business has taken place, should be done by requiring the Minister himself to table a motion before the House to confirm his own regulations so that there would be an opportunity for the House to debate it, even for a limited period with one spokesman per party — I realise the time of the House is limited. At least we could be sure that way that these matters would come before the House for scrutiny and that it would be possible for the House to debate them even briefly and indeed vote on their adoption or rejection if necessary.

The regulations referred to here are vitally important in terms of deciding whether this special restaurant licence will work in the way that is originally intended. Section 24 deals with the annulling of regulations. I have an amendment in, and I see that Deputies Taylor and McCartan have also, that these regulations should be laid before the House for approval. In this instance it is vital that that be done. It would be my intention to press that amendment and I am sure all the other parties would support it because this is one way of guaranteeing that all the provisions relating to the granting of special restaurant licences will be contained in these regulations. It is essential that we have the opportunity of approving or rejecting those regulations by way of resolution.

Is Deputy Taylor pressing his amendment?

Amendment, by leave, withdrawn.
Amendments Nos. 28 and 29 not moved.
Section 12 agreed to.
Progress reported, Committee to sit again.
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