A Cheann Comhairle, can you outline to us the system that will be used to deal with these amendments? How often may we reply?
Intoxicating Liquor Bill, 1988: From the Seanad.
The Dáil went into Committee to consider amendments from the Seanad.
As often as the Deputy wishes.
May I also ask——
It is impossible to hear what is being said.
Will the House please come to order as it is not possible to hear what is being said in the Chamber.
Last Friday we dealt with the Estimates for the Department of Justice with the Minister for Justice not being present. Last night I moved a Private Members' motion and — what I regard as a great slight on the Opposition parties in this House — the best the Government could do was to send in a backbencher to reply to the main speaker from the Opposition and who proceeded to misrepresent what I had said and to use the issue as a political football. As a result of a biased judgment by your substitute in the Chair I was asked to leave the House.
The Deputy is completely out of order. He is not adverting to the matter before the House and he has reflected on an occupant of the Chair. This is not good enough. I must ask the Deputy to apply his mind to the matter under debate here, Item No. 4, Intoxicating Liquor Bill, 1988, amendments made by the Seanad. That is the subject matter before us, nothing else.
We are now dealing with the Intoxicating Liquor Bill, 1988, amendments made by the Seanad——
That is so.
——with the Minister for Justice not being present. Let me ask who orders the business of this House? Can business not be ordered for the days on which Ministers can be present?
The Deputy is deviating from the subject matter again.
I am sure my colleagues will agree with me when I say that the minimum we are entitled to is the presence of the Minister when dealing with the Estimates, which, after all, involve a considerable amount of money, and the presence of the Minister when dealing with amendments from the Seanad——
Let us get down to dealing with the amendments.
——one of which relates to an amendment which I put down on Committee Stage and which was accepted by this House. When the Minister got out of this House and into the Seanad, where the Government have a majority, he deleted the amendment which had been accepted by this House and now he does not appear in this House when dealing with the amendments made by the Seanad, rather he has sent in Deputy Woods, who, I am sure, has no authority whatsoever to accept anything. This makes a complete and utter ass and joke of the legislative process——
I say again let us deal with amendment No. 1.
I protest in the most venomous way possible. The Government have become so arrogant that they ignore this side of the House, be it on the Estimates, legislation or Private Members' time. I want to assure the Government that, as far as I am concerned, the days of co-operation are finished if this is the manner in which we are going to be treated. Last night we had the spectacle of a backbencher being sent into this House to reply to a very important motion and I was asked to leave the House. What an abuse of democracy.
Let me say that the Minister for Justice cannot be present today as he is attending a meeting of the European Ministers for Justice.
This business should not have been ordered for this week.
I am speaking to the Ceann Comhairle.
Knowing that he was going to be away, this business should not have been ordered for this week.
Let us get down to dealing with the business before us.
I am sure the Deputies will appreciate the urgency of this matter. I think most people outside of this House appreciate its urgency.
We could take it next week.
The Order of Business was decided upon — unanimously, I would remind Members — a very short time ago. Let us now deal with amendment No. 1.
We did not realise that the Minister was not going to be present.
Will the Minister formally move the amendment?
I move that the Committee agree with the Seanad in amendment No. 1:
Section 6: In page 5, lines 27 and 28, "at midday or in the evening, or at midday and in the evening," deleted.
Following an amendment proposed by Deputy Colley, the afternoon break from 3 p.m. to 6 p.m. in the permitted hours of the supply of intoxicating liquor in special licensed restaurants was removed. This Seanad amendment makes a consequential change in the definition of "restaurants" in section 6. That is all that is being proposed in this amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 2:
Section 8: In page 6, lines 36 and 37, "is satisfied including inter alia by annual inspection” deleted and”, having inspected the restaurant, is satisfied” substituted.
In consequence of an amendment proposed by Deputy Seán Barrett, subsection (2) of section 8 was amended to ensure that the special licensed restaurants would be inspected by Bord Fáilte at least once a year. It was indicated that this amendment would be referred to the draftsman to see if the wording could be approved. This is now done in Seanad amendment No. 2. It will be noted from subsection (4) of section 8 that the Bord Fáilte certificate must be renewed each year. The effect of this amendment is to ensure that the premises are inspected before the new certificate is issued.
I would like the Minister to expand a little bit more in regard to his reference to subsection (4) and how he would consider that the two taken together would require that an annual inspection take place. We had a long debate on this on Committee Stage when the argument was very forcibly put. We agreed to the proposition that there would at least be an annual inspection in order to maintain standards. Because the reference to an annual inspection has been taken out by the Seanad amendment I would like the Minister to tell us how the two taken together will achieve what this House is anxious to achieve, that is, regular, at least annual, inspections to ensure that standards are maintained.
The purpose of this amendment is to ensure that we, technically, achieve what the Deputies have in mind. In this regard the advice which was sought was the advice of the draftsman. Essentially it was a question of ensuring that we achieved what the Deputies have in mind. The position now is that an inspection will have to take place before a certificate is issued. The issue of a certificate will still be required each year.
Can the Minister tell us where the explicit obligation to carry out a prior inspection is outlined, as it is not there? If it is being suggested by way of implication I believe that the better thing to do would be to leave the explicit obligation and let the section stand in the way in which it left this House.
The amendment reads:
In page 6, Lines 36 and 37, "is satisfied including inter alia by annual inspection” deleted and “, having inspected the restaurant, is satisfied” substituted.
That does not say anything about an annual inspection.
It is a technical amendment.
The reference to an annual inspection is gone.
A Cheann Comhairle——
Let us hear the Minister.
The reference to an annual inspection is contained elsewhere, in subsection (4).
Which allows for the annual granting of licence. The problem, as I see it is that by taking out the reference to an annual inspection in subsection (2) we are abandoning it. What I would like to know is whether by way of implication there is an obligation to carry out an inspection before a certificate can be issued? This is all by way of implication. There is nothing explicit in the section that requires the annual inspection. If my interpretation is correct, I think the preference of this House would be to keep the explicit need for an annual inspection because of our concerns to see that standards are maintained.
Section 8 (4) states:
A Bord Fáilte Certificate shall, unless it is sooner cancelled pursuant to this Act, continue in force until the date of the next annual licensing district court for the court area in which the restaurant the subject of that Certificate is situated.
The certificate only continues up to the annual licensing date. It will have to be renewed or else it will fall. The provision "... having inspected the restaurant, is satisfied ..." is included in the other section. The draftsman has assured us that that is the position.
May I say to the Minister, with the greatest respect to the draftsman, that what is wrong with much of our legislation is that the average man in the street does not understand what was in people's minds. I certainly do not understand what was in the draftsman's mind in this case. He should have come forward with an amendment which said "...having inspected the restaurant annually is satisfied...". Why could he not include the word "annual"?
I have to be suspicious of what is going on here. It is clear that an attempt is being made to delete the requirement for an annual inspection by coming in here and pretending that by using different words we can achieve the same thing. If the word "annual" is left out of this section and it is challenged in any court of law, I suggest that any reasonable justice or judge would say that the legislation does not make it clear that the restaurant has to be inspected annually. For the life of me I cannot understand why people have to fiddle around with what is already there. What is wrong with the phrase "...is satisfied including inter alia by annual inspection...” I got legal advice on this. If the legal advice I got had come from the draftsman's office there would be nothing wrong with it but because it did not come from the draftsman's office it has to be changed. There is a belief that every time the Opposition put forward an amendment, no matter what the wording is, it has to be changed because it did not come from the Government side. I had experience of this recently in relation to an amendment to the Courts Bill. I wanted the Minister to get the approval of the House to change the regulations in relation to the two senior counsel rule. The wording I used in my amendment was an exact copy of the wording in the Criminal Justice Act, 1984——
Let us not stray from the Intoxicating Liquor Bill before us.
——but, lo and behold, the draftsman was not satisfied with the wording. The wording came from the draftsman's office during the period of office of the 1984 Government. This proves that unless the wording comes directly from the draftsman's office it is not acceptable to this House.
I am not satisfied that what is in this amendment achieves what we want and is what this House asked for and got when the Bill was being debated. If there is some attempt being made to drop the annual inspection by twisting words I am not going to be conned into accepting this. I will not accept this wording as it is presented. If they wanted to change the wording I cannot understand why they could not have said "...having inspected the restaurant annually is satisfied..." What is wrong with that? The word "annually" was deliberately deleted. I am convinced that the Government attempted, when they went out of the Dáil and into the Seanad, where they have a big majority, to drop the requirement of an annual inspection. I am not going to be conned like I was last night or last Friday. The days of being conned by the Government are finished. I will not accept this con trick which is an attempt on the part of the Government not to build into the legislation the requirement for an annual inspection.
Perhaps it would be helpful if I explained the positions. There is no unseen or hidden reason for this; it is a very simple reason and if the Deputy thought about it he might realise it.
I am thinking about it all right.
I know the Deputy is not in the best of humour this morning.
I will not be fooled again.
The section would confine it to one inspection annually and the reason for including this provision is that it may be necessary to have more than one inspection annually. The amendment has been worded this way to ensure that a premises is open to more than one inspection annually.
With respect, I am afraid that is not the case because the previous amendment said "...including inter alia...” and that means that other provisions are allowed for. If there is to be an extra inspection in addition to the annual inspection there was nothing in the section in the form it went out from the Dáil after Committee Stage and Report Stage, to preclude the board carrying out a further inspection of the premises. I agree with Deputy Barrett and Deputy McCartan that there seems to be a deliberate omission of the word “annual”. If one reads through the section it is obvious that the application allowed for in section 8 (1) is for an initial certificate prior to a restaurant obtaining any special restaurant licence for the first time. The conditions set out in section 8 (2) lead to the granting of that certificate, whereas section 8 (4) merely allows for the fact that one might apply for a special restaurant licence mid-year and then move to the annual licensing day. There is no requirement in the section for the certificate to be re-granted every year on the annual licensing day. It requires that a certificate is in being and continuing and that it may continue without annual inspection. The section, as now presented to us after being in the Seanad, has absolutely no requirement to have an annual inspection or an annual re-grant of a certificate.
I want to come back to the Minister in regard to the earlier reply he gave me. I presume the Minister would point out to Deputy Colley that in respect of section 8 (4) the certificate lapses each year so there is a question of renewal of both the certificate and the licence. The practice at present with regard to the licensing of public houses in that one sitting day of the District Court is set aside each year and it is called the annual licensing day. From debates on this, I believe that 900 licences have to be renewed on one day by the District Court in the Dublin metropolitan area. These are lodged, the fees are paid and they are automatically granted by the district justice unless there is a specific objection from residents or a superintendent. The regime and order for the renewal of licences for public houses is a matter of course on an annual basis, without any requirement for inspection or review even by the District Court.
I believe that the taking out of the requirement for an annual inspection in section 8 will allow for exactly the same order of things to work with regard to restaurant licences and renewal of certificates. We specifically addressed that point in response to many concerns, but in particular to the concerns of the licensed trade, that there might be a proliferation, or a reduction, or a falling off in standards. We wanted an ongoing annual inspection. On Committee Stage we queried whether Bord Fáilte would be given the resources and personnel to maintain the necessary review and policing of the various restaurants which had been granted licences. We are particularly anxious to ensure that a constant review is maintained. At that time the Minister seemed happy with our concerns and responded to them and I am disappointed that the requirement for the annual inspection is being taken out as a minimum. We argued on Committee Stage that if that requirement was not there it was not to allow for multiple inspections in one year but that it would achieve the situation where there might never be an inspection of the certificate by Bord Fáilte after the initial inspection. The objective of our efforts on Committee Stage was to ensure ongoing, regular policing at least once a year. I would be very disappointed if the House departed from that principle, it having been argued at length on Committee Stage. In the spirit of goodwill, the Government should accept the wording as it stands and not pursue the amendment from the Seanad at this stage.
When we debated this Bill in the House, I got a categorical assurance from the Minister that the same rigorous inspections and the law would apply right across the board. Is that still the case? I believe that it is. With regard to Deputy McCartan's point about the licensing of public houses, etc., there is one annual licensing date, but the Deputy is quite wrong when he says that public houses are not subject to inspection. Several different forms are sent out prior to the licensing renewal application. One of those must be signed and stamped by the local authority, so the licensed premises are subject to inspection and must be passed as fit premises before the licence can be granted.
In the case of restaurants, here we are dealing with food in a much greater capacity than would apply to the ordinary public house serving pub grub. These restaurants should be subject to more than one inspection per annum. It is easy to have premises in good order coming up to the licence renewal date and perhaps in a month's time let the standards fall. The Minister is quite right that these should be subject to more than one inspection and if that is the case I would be quite happy.
This is not because of my bad humour, as suggested by the Minister, and it has nothing to do with my ability to debate any point——
The Deputy is not in bad humour, anyway.
Not at all. The reason that I am, and will continue to be, very sceptical about what is going on here is that I believe this to be a deliberate attempt to get over the annual inspection requirement. I suggest that the Fianna Fáil backbenchers who debated this Bill are being conned as well as we are and do not know it. This amendment was proposed by me on Committee Stage and if one looks at the record — and I think my recollection is correct — the Minister asked that we give him time to examine our amendment and that he would consider it on Report Stage. What happened between Committee and Report Stages? I presume the parliamentary draftsman was sent a copy of the amendment and that he gave his opinion. Why did the Minister not accept the amendment on Report Stage, or why did he not come forward with another technical amendment on Report Stage?
This is a total and utter con trick. If the parliamentary draftsman was serious and was worried about the particular wording in the Bill — which is a load of bunkum, anyway — he would have put in the phrase "having inspected the restaurant annually, be satisfied...."
At least annually.
At least annually, that is the point. My legal eagle behind me is quite right.
At least once a year.
There is a very subtle attempt being made here to get rid of the annual inspection requirement. With the greatest respect to Deputy McCartan, he should not be fooled. I have been fooled for the past couple of months, I must admit, but never again. This is an absolute con trick. Why does the Minister not say that the Government do not like the idea of an annual inspection, that they have thought about it and that perhaps Bord Fáilte have pointed out they could not inspect all the premises annually and that it would cause total confusion. What we said in this House, and Deputy McCartan repeated, was that we do not expect the taxpayer to bear the cost of these annual inspections. We expect those applying for the licences to pay for them. That is what we said and it is on the record of the House. There are 250,000 people unemployed out there, and if we, through this legislation, can make a few other inspectors jobs for annual — at least annual — inspection all the better.
After all, the licence will cost only £3,000 once off and I do not see why there should not be an annual inspection to ensure that standards are upheld. Those who have invested large sums of money in licensed premises must not be put out of business because somebody next door bought a premises, did it up and it was grand for the first Bord Fáilte inspection but immediately afterwards all the restaurant fittings were removed and it was basically a pub and the owner comes into court every year and gets a licence.
It is just tough luck if we are asking Bord Fáilte to go around the country and inspect all applications for a renewal of a special restaurant licence at least annually at no cost to the taxpayer. I will not accept the wording suggested by the Minister. Perhaps there will not be a majority in the House to accept my point of view but, if necessary, I shall put it to a vote to make the position clear to those out there who made representations to all of us, and who made a good case. We tried to get a fair and equitable balance in the legislation.
When the Bill leaves this House and goes into the sanctuary of the Seanad, where there is a large Government majority, we are not going to be fooled by any amendments made in the Dáil being quietly deleted, with a "technical amendment" coming back. This is not a technical amendment. If the Minister is so concerned about my wording and wants to come forward with words which include "at least annually", or "annually", or any other form of words that he wishes, we shall consider them, but certainly we shall not consider his present wording.
I honestly believe the Deputy is making a mountain out of a molehill.
I am not.
He is totally misled in believing that there is any con trick involved. I do not understand his logic. There is not very much difference between the two wordings, that in the Bill at the moment and the wording proposed by the parliamentary draftsman following a request from the Minister. I think that the parliamentary draftsman has met the requirements that there will be at least an annual inspection and that it is left open to more than an annual inspection in the wording at present. I see the difficulty which was foreseen earlier, which is why the Minister examined the possibility of the drafting being improved.
Why was that not done between Committee and Report Stages?
I have no hang-up about this and neither has the Minister. It is purely a matter of technical drafting. There seems to be very little difference——
There is a hell of a difference.
There is not.
Yes, there is.
There is very little difference between the two. I think the Deputy is mistaken.
One requires an annual inspection and the other does not.
Section 8 (4) states: "A Bord Fáilte Certificate shall, unless it is sooner cancelled pursuant to this Act, continue in force until the date of the next annual licensing district court for the court area in which the restaurant the subject of that Certificate is situated."
What has that to do with an annual inspection?
It does not necessarily lapse.
Let us hear the Minister out. Deputies may intervene at a later stage. Interruptions are not in order.
Of course, yes. I am sorry.
I believe the parliamentary draftsman has it right. There is no hidden agenda, as the Deputy likes to suggest. We go from this House to try to improve the drafting. In my view, the drafting has been improved. The Deputy should recognise that fact. There is nothing outside that at all.
It is worth saying that, of course, the parliamentary draftsman has done his work, but he will draft only in so far as he is given instructions to give a certain effect to certain legislation.
May I intervene here to say that I would prefer if no reference were made to officials or parliamentary draftsman as such. The Minister is responsible. Personalities outside should not be referred to.
I simply mean that the procedure is that the parliamentary draftsman is asked to give effect to a certain provision. Subsection (4) is ambiguous because it does not say that a Bord Fáilte certificate shall lapse at the end of each licensing period. It says that it will continue in force until the date of the next annual licensing District Court sitting but it does not say it will lapse at that date. That can mean that the licence will continue to be in force and that it will obviate the necessity for a further inspection and another certificate to be granted.
I am not clear how subsection (4) will work in practice. The certificate continues in force until the date of the next annual licensing court, which is a date in September in each District Court area. I presume the meaning of the subsection is that, as of that date, the certificate is no longer in force, it is spent. For example, if the licensing court is held on 6 September the Bord Fáilte certificate is spent on 5 September. To get a new licence, the restaurateur must produce another Bord Fáilte certificate and, to have got such a certificate, he would have had to comply with the regulations. It is the Minister's intention — although it is disputed on this side of the House — that he will have been inspected.
If Bord Fáilte issue that other certificate prior to 6 September in the knowledge that the current certificate will expire at midnight on 5 September, what date do Bord Fáilte put on the new certificate? If they issue it on 1 September, following an inspection in July or August, they issue a certificate dated 1 September but on what date will it expire? According to this subsection, the certificate issued by Bord Fáilte expires the day before the annual licensing court. How can they issue a further certificate that will not expire on 5 September? Otherwise they will be issuing it in futuro which is hardly what is contemplated by the Bill.
In those circumstances, the Bord Fáilte certificate can be dated until the following September. If the Deputy is right in his conclusion that it will remain in force until that date and shall no longer be in force at that stage and will be dependent on the other certificate being available on that date——
How can Bord Fáilte issue a certificate prior to the expiry date that will not be killed by the expiry date? I cannot see how they can issue a certificate on 1 September 1988 and declare that it will remain in force until 5 September 1989. According to this section, a Bord Fáilte certificate can only continue in force until the date of the next licensing session and in regard to purporting to cover the following year, the next licensing session will be the one immediately taking place on 6 September.
It will be dated to commence from that date — or after it — as appropriate.
Deputy Lynch asked if the purpose of this amendment is to achieve the same order of things in regard to the licensing and renewal of licences for restaurants as for licensed premises. He sought to make this case throughout the debate and felt that there should be the same regime for all licensed premises. The Minister did not answer him and I should like him to do so now because it would tell us a lot about what is envisaged in regard to this amendment if the answer is "yes." Is the Minister, by extension, accepting what Deputy Lynch said, that this inspection will be a matter of form filling? Will restaurants be sent forms to fill out?
The difference is that the Bord Fáilte positive certificate will be required every year whereas, in the other case, the licence will depend on whether there is an objection.
There does not appear to be a difference because each local authority are consulted and must be satisfied and the way they do that is by sending out a form to publicans to fill in. That form is certified and sent on with documents to court. I thank Deputy Lynch for the information in that regard. It was something of which I was unaware, as my only contact is from attending the annual licensing courts where all the public houses in the area are simply nodded through. If there are specific objections from the public or the local superintendent in relation to some public houses, they are put aside for a separate hearing. I am convinced that that will be the end result of the Seanad amendment. Deputy Lynch wants a similar law for public houses and restaurants and there should be a more strict and regular direct inspection of these premises, not just filling out forms. Restaurants and the provision of food are crucial to a developing and improving tourist industry and, unless there is active surveillance we will come out badly from this development of the law. If the Minister is of the view that there is little between us, I ask him to bow to the strong opinions held on this side of the House and not to press his amendment any further.
I should like to explain what happens in regard to licences for public houses. These forms are issued through the federation and they must be completed and returned to the local authority. In my area, there is a quarterly report on the number of public houses, the number of inspections carried out, the numbers still to be inspected, the number passed and the number of premises where the local authority — usually the fire officer — might not be satisfied with the lighting system or the emergency exit. Several requirements must be complied with before the granting of a licence and they will be inspected again and again, if necessary. When the local authority are satisfied that the premises are up to the required standard, they will then issue the certificate which gives clearance to the publican from that point of view.
The health board must also be satisfied that the premises are clean. I was under the impression — I hope I am correct — that that is the intention of the Bill in regard to restaurants and that the same criteria must apply right across the board. I know there is a distinction in regard to public houses and the liquor licence and there is the other aspect of the Bord Fáilte requirement. I thought they would interlink so that we would have the one rule for everybody. The Minister said when he introduced the Bill in the House that the one law would apply across the board. I hope that is still the status quo.
When the Bill was going through the Dáil there was a clear request from this side of the House, a request by myself supported by the other parties, that when a licence came up for renewal rather than have it automatically renewed because all the inspections and procedures had been carried out when the original licence was granted, it should not be renewed until a Bord Fáilte inspector had inspected the premises and agreed that the standards applying last year had been upheld in accordance with the law passed by both Houses of the Oireachtas. To make absolutely certain that an annual inspection would take place we put in an amendment which says “inter alia, by annual inspection”. It is simple English.
It is half Latin.
That amendment was accepted by the Minister on Committee Stage. The Minister had between Committee Stage and Report Stage to have the technicalities of that wording checked out. The Minister did so and came back with it and the amendment was accepted on Report Stage and Fifth Stage was passed and the Bill went to the Seanad. What has changed between Committee Stage, Report Stage and the Seanad? The Bill has come back with a wording which has deliberately excluded the requirement to have an annual inspection. All sorts of justifications have been offered this morning as to why the wording should be changed. There is absolutely no reason why it should be changed but even if it was to be changed and the intentions as expressed by this House were to be included, the Minister would have put in a phrase saying that the restaurant should be inspected at least annually. The Minister has left out the word "annually" altogether.
The Minister can talk about when a Bord Fáilte certificate lapses and about annual licensing and so on but I am talking about annual inspection. I am not talking about when a licence is renewed or how a licence is being renewed. I am talking about having built into legislation a requirement to have the premises inspected annually by a Bord Fáilte inspector. Nobody will convince me that this is not an attempt to delete that requirement. The Minister has referred to a subsection that has nothing to do with inspecting premises. It has to do with the renewal of licences. We are not all that stupid. If the Minister does not now want to have an annual inspection requirement included in the Bill, will he please stand up and say so. He should not continue to insult our intelligence by telling us that by changing the wording and deleting the need for an annual inspection it achieves the same thing. I could argue this until 12 o'clock, but it would be an insult to the intelligence of this House to do that.
I have the greatest sympathy for Deputy Woods who has been sent in here but who did not take this Bill through the Dáil. If the Minister for Justice could not be available, this Bill should not have been ordered for this morning. I accept that Ministers have to go on business. I do not know where the Minister is, but I assume he is on official business. If that is the case the Bill could have been ordered for tomorrow, for Friday or for next Tuesday, Wednesday, Thursday or Friday. I will sit until 2 o'clock in the morning if that satisfies the Government and the Government Chief Whip.
It is really galling when one sits down and spends hours with no back-up service of civil servants behind one preparing one's script for the Estimates debate, when one comes in here and is chucked off after 15 minutes and when the Minister who delivered the opening speech disappears, and the reply to the debate is given by the Minister of State in Forestry, who was not even here when one was making one's contribution. If that is not an insult to this House and to the Opposition parties, I do not know what is. Then, when one goes to more trouble to do research, sitting for hours trying to get a speech together on a very delicate issue like extradition, lo and behold, the best the Government can offer is a reply from a backbencher from County Louth who stands up——
Please, Deputy Barrett, you are straying very far from the amendment under consideration.
——and kicks extradition around as a political football. This morning we came in to deal with the Intoxicating Liquor Bill and what do we get? — the Minister for Social Welfare who was not even here when this Bill was debated, and who has the cheek to stand up and tell me I do not understand plain English. I am talking about the requirement to have an annual inspection of a premises. I am not talking about how licences will be renewed annually. I am talking about putting into legislation a requirement that a Bord Fáilte inspector goes into a premises at least once a year and sees to it that that premises is what we regard as a restaurant for licensing purposes. The Minister can fiddle around with all the words, but please do not stand up and tell us we do not understand plain English.
I want to know if Fianna Fáil have changed their minds on the requirement for an annual inspection. If they have not changed their minds, would they please tell me why they object to putting in the words "at least annually" or "inter alia by annual inspection”? What is the objection? Please do not continue referring us to subsections (4) and (5) which have nothing to do with an annual inspection but which relate to the renewal of the licences. I have the greatest sympathy for the Minister, because being thrown into a debate of this kind at the deep end is extremely difficult, but it is more frustrating for us. Why the Government could not have ordered this business when the Minister for Justice would be here is beyond me, particularly when there was an amendment from the Opposition benches and agreed by this House, which is not a very regular occurrence. We do not manage to dramatically change legislation every single day of the week, but when we do surely we deserve the courtesy of the presence of the Minister who was responsible for accepting the amendment in the first place, to explain why he got a sudden rush of blood to the head and he cannot accept it now. Instead of this we had the Minister for Social Welfare saying we will achieve the same things with different words and that if he refers to section 8 (4) everything will be all right. It will not be all right, because the law will not say there is a requirement for an annual inspection. That is a simple request.
Is the House going to amend the wording that came back from the Seanad, wherever it came from? I respect the Ceann Comhairle's request that we should not refer to officials in the House but wherever it came from, will the Minister include "at least annually"? A Cheann Comhairle, can you tell me what is wrong with the wording in the Bill in section 8 (2) as sent to the Seanad that makes it necessary for the Government to change it? Where did the requirement to change the wording come from? They want to delete “inter alia by annual inspection”. They want to put in “having inspected the restaurant, is satisfied”. They say that implies the same thing, that it implies there is a need for an annual inspection. Are we to be taken for complete gombeen men altogether? “Having inspected the restaurant”— how in God's name, can that mean “by annual inspection”? Can you tell me, Deputy?
No way.
I cannot either. Can anybody tell me? Deputy Colley, whom I do not regard——
I will explain it once again.
——as a fool, does not understand it either. My esteemed colleague, Deputy McCartan — who I said last week had an opinion on everything superior to everyone else, a remark which I withdraw — also agrees with me. The three of us cannot be wrong. The Minister is continually getting messages from his officials——
References to officials ought not to be made.
If I am missing something I apologise but I do not think I am. I think this is one massive con trick and I am not going to fall for it no matter what happens. If we are to stay here until 2 a.m. and if the Minister wants to call in the Government Chief Whip and ask him to re-order the business so that we give extra time to this important legislation I am staying here and I am prepared to agree to it. If he wants to come back here at 11 o'clock tonight and stay until 5 a.m. and if the Minister can convince me that his words will require at least an annual inspection, at the end of those six hours debate I will apologise to him. I will not be conned, and I advise the Fianna Fáil Members, wherever they are, who came in here when we were debating this Bill, to come in quickly because I think they are being conned as well.
The other suggestion I would make is that Deputy Lynch would go to his parliamentary party and kick up holy murder about this issue because this is not what this House wanted. This House clearly expressed the view that it wanted restaurants to be inspected at least on an annual basis, and that is now being deleted from this legislation. The Minister for Justice had every opportunity between Committee and Report Stages to check out the wording I had proposed on Committee Stage. He chose not to do that, or maybe he did, but he did not object to it on Report Stage, in fact, he accepted it, and the Bill was passed on Fifth Stage. Where in between all those Stages did he come up with this technical requirement when it says the complete opposite to what this House wanted. I am saying to the Minister, for goodness sake leave well enough alone and go back to the Seanad and say: "we are forgetting about your amendment because what was there originally is probably the best thing". If he says that we can move on to the other amendments but I will not let this hare go.
I know that Deputy Cooney having discussed the matter seems to have understood the position——
He did not.
——and accepts the amendment. In my initial note I said that what is required in subsection (4) of section 8 is that the Bord Fáilte certificate must be renewed each year. The effect of this amendment is to ensure that the premises is inspected before the new certificate is issued. It is a totally new procedure.
Where in the Bill is that stated?
It is stated in subsection (4) of section 8. A Bord Fáilte certificate shall, unless it is sooner cancelled pursuant to this Act, continue in force until and only until the date of the next annual licensing District Court. In subsection (2) we are now putting in "having inspected the restaurant, is satisfied" which is the new Seanad amendment. Basically what is required is a new certificate every year, not a continuation. The Deputy could have some concern if it was a continuation. There is a totally new certificate issued each year and therefore it requires the procedure in subsection (2), which states that: "having inspected the restaurant, is satisfied". That leaves it open not for just one inspection but to more than one inspection if thought necessary. The two subsections are subsections of section 8 and they are directly related. It is clear to me, and the Deputies arguments in teasing it out have made it even clearer to me, that there is no question about the fact that the certificate falls each year and that a totally new procedure must be entered into. In having the new procedure there is a requirement under subsection (2) which states: "that having inspected the restaurant, is satisfied", that is what is included in the Seanad amendment. That is the advice of the draftsman, and he has more expertise in this area than the general legal adviser. We depend very much on the expertise of the draftsman and his experience in handling legislation. I am quite satisfied that that is what it means and I think the Deputy is just——
There was never any challenge to the Constitution by legislation drafted by the same gentleman. What in God's name is wrong with the wording that was put in by this House prior to the Bill passing the Fifth Stage? Would the Minister please explain to me how his wording is better than what is already in the Bill? Would he explain to me how it makes it more clear that there is a need for at least an annual inspection in his wording? Would he explain to me how his wording is better than what was already in the Bill and accepted by the Minister for Justice? This amendment was not proposed by this party or by me personally. This Bill, accepted by the Minister, and presumably by his Department, made clear the requirement for an annual inspection. His wording does not say anything about inspections. There is no implication about inspections. It is concerned with the renewal of a licence. I am talking about the requirement of an annual inspection of a premises. I cannot understand how he can argue that this new wording is better than what was originally in the Bill. I do not want to be difficult but I have the feeling that somebody wants to get rid of the requirement of an annual inspection. They do not like that in the wording because it is too clear. We can have this debated in the courts perhaps, but there was never a clearer requirement for an annual inspection.
The Bill as worded when it left this House was accepted by the Minister, when he had time on Committee and Report Stages to examine all the wordings he wanted, and he did not have any difficulty with it. Suddenly when the Bill went to the Seanad the difficulties arose. I know where the difficulties arose because Bord Fáilte asked, "How are we to carry out these annual inspections?" That is the reason the Minister is now trying to justify changing the wording. We made it clear that the taxpayers of this country were not to fund the cost of these inspections. We made it clear and asked the Minister, if necessary, to include it in the legislation but he assured us it would be included in his regulations, that anybody who had to have an inspection done would pay the licence cost of, a once-off £3,000. Therefore, it is not unreasonable that we should charge a small fee to somebody to have their premises inspected every year so that they can get a certificate. We even went so far as to say that if the restaurant was in Kerry or Cork that the inspector could do a number on the one trip. We cannot be more reasonable. What is wrong with including the wording that was originally in the Bill? How is it better? It is not better. It casts greater doubts. There is no clarity about the situation and I maintain that this is an attempt to cloud the issue and to con this House.
I would refer the Deputy to the fact that section 8 is a section about the application for a certificate. This section is about the issuing of a certificate as a prerequisite for a licence. The subsections are all inter-related as regards the issuing of a certificate. The Deputy suggests that there might be some way in which we could say "at least" or some other words which would leave him feeling happier even though the amendment is technically correct. I would have no concern about doing something like that if it left the Deputy happier. The only trouble is that it would delay the implementation of this Bill and of the Act, something that is very crucial and critical at this time. I am sure the Deputy recognises that. If it were necessary to do that, then that would be fair enough but that would also involve delay.
Leave it as it is.
Allowing it to remain as it is would leave it open to an abuse which the Deputy does not seem to recognise, in that it only states "annual inspection".
It states “inter alia”.
It appears that we are all wiser than those who have been drafting legislation for years and know a lot more about that work than us. I am happy with what is stated in the Bill. Subsection (4) is clear in that it states that the certificate falls annually with the result that a new certificate must be issued.
It does not state that. It has nothing to do with the inspection. The Minister should not be insulting our intelligence.
I have given the meaning of the provision and Deputy Cooney, having accepted that, has gone for his lunch because he thinks the Deputy has gone on a bit much about this matter. Subsection (4) clearly states that a new certificate is required each year. The Seanad amendment to subsection (2) states, "having inspected the restaurant, is satisfied". In simple mathematical terms one cannot get a new certificate without the restaurant having been inspected. A new certificate is needed every year.
The subsection does not state that one has to have an inspection each year.
The certificate remains in force until the date of the next annual licensing court.
The subsection does not state that it is necessary to have an inspection every year and it is worded in plain English.
How can the Minister assure the House that the annual inspection will be carried out by Bord Fáilte? An inspection may be carried out initially, but that might be the last inspection of the premises for five or more years. What is to prevent the owner of the licence violating the laws and regulations in regard to an annual inspection? The Minister is trying to whitewash the provision passed unanimously by the Dáil that there should be an annual inspection. We do not have any stipulation that an annual inspection should be carried out.
There is no requirement for an annual inspection.
I can accept what the Minister has said about an annual inspection occurring if a Bord Fáilte certificate is required annually, but there is nothing in the Bill which demands that a Bord Fáilte certificate operate on a yearly basis. The Bord Fáilte certificate is defined in section 6 as having the meaning assigned to it by section 8. There is nothing in section 7 which deals with the issue of the special restaurant licence which limits it to one year. It simply refers to a certificate. I would accept the section if in subsection (4) the Minister included wording to the effect that a certificate granted would cease to be effective at the end of the licensing year. There is no precedent for Bord Fáilte certificates to exist for the same period of time that a liquor licence exists. There is no precedent for a district justice to follow. It is not enough to say that a Bord Fáilte certificate shall, unless it is sooner cancelled pursuant to this Act, continue in force until the date of the next annual licensing District Court for the court area in which the restaurant the subject of that certificate is situated.
In my view that subsection means that the certificate will continue and there is no obligation to say that a further application for a certificate must be submitted. Deputy Cooney made a point about the date on which the certificate would take effect but there is nothing in the Act that clarifies that.
Deputy Cooney nodded his acceptance of what I said.
Funnily enough, he nodded to me when I expressed the view that I thought he was right. There will be confusion as to when a Bord Fáilte certificate will be in force, whether it is from licensing day to licensing day or from the date the application is submitted or when it is issued. If the certificate is issued before the licensing court will it lapse? The Bill states that:
A Bord Fáilte certificate shall, unless it is sooner cancelled pursuant to this Act, continue in force until the date of the next annual licensing district court ....
A Bord Fáilte certificate in existence before that licensing date must lapse on the date of the licensing court. I submit that that subsection creates a real difficulty. If the subsection made it clear that the Bord Fáilte certificate would be for one year, would lapse on the date of the annual licensing court and that an application must be made for a new one, I would accept that there would be a need for an annual inspection allied to that provision. The Minister should give serious consideration to this matter.
That will be the effect of the provision. It was never intended that a Bord Fáilte certificate would be automatic and, therefore, it lapses on the date of the annual licensing court. That is the point Deputy Cooney was making. There is the technicality of how to get over the few days involved and that an inspection will have to be carried out before that date. Obviously, that is a question of detail.
It is a question of law.
This applied previously when we did not have the automatic renewal of licences. The subsection states that the certificate shall ...
continue in force until the date of the next annual licensing district court ...
That is the intention. Therefore, the certificate falls annually and that was the advice given to the Minister.
Will it be necessary to make a written application to Bord Fáilte every year?
That should be stated in the section because there is no precedent for such a provision. The Bill refers to "a Bord Fáilte certificate" which means any Bord Fáilte certificate which may be in existence in relation to the restaurant. It goes on to state that such a certificate shall only continue in force until the annual licensing court. A certificate in force before that date will lapse whether it is for the next year or not. According to the Bill, any certificate in existence will lapse after the annual licensing court. It should be clearly stated that it should be necessary to apply for a new certificate for the year in which the licence is being applied for.
The Minister told us that there are other people who know more about drafting legislation than the Members present, but I should like to remind him that the Bill was passed by the House with the wording I have suggested. Presumably, the same people the Minister has referred to examined it. It is my understanding that a restaurant owner who wants to apply for a licence under the Bill must obtain a certificate from Bord Fáilte, produce it to the court and, if it is accepted, go to the Revenue Commissioners with £3,000 for the licence. That licence must be renewed annually. When the Bill was going through the House we insisted that Bord Fáilte should issue a certificate in respect of applications for renewal of a licence, but the legislation did not make it clear that before such a certificate would be issued an inspection of the premises must be carried out. We amended the Bill to make absolutely certain that before Bord Fáilte issued a renewal certificate they would inspect the premises on at least an annual basis. Perhaps there are other reasons why they should make an inspection more often than on an annual basis. It is necessary that the person has a renewal certificate from Bord Fáilte when he goes to court so that the judge will renew the licence.
The Minister accepted the amendment on Report Stage and it was sent to the Seanad. When it came back from the Seanad the reference to annual inspection had been deleted and a new wording inserted which makes the matter far more complicated and there is greater uncertainity as to whether there is a need for an annual inspection. The Minister then tries to convince us that this is a better wording. If it was all right when it went through the House why is it not all right now? If it had been left as it was we would not have this dispute this morning. I cannot understand why there is a need to change the wording. I think I am right in saying that one must be suspicious and that between the time the Bill passed this House and went to the Seanad people became upset. They probably thought that there would be much work involved in inspecting these premises on an annual basis. The Minister now comes back and says that we will not be able to inspect these premises on an annual basis but we will produce different wording which could be interpreted that way and he argues that this is a better wording. How can it be a better wording when it excludes the need for an annual inspection? On day one we were trying to make it quite clear in the legislation that there was a need for an annual inspection. I do not want to hear talk about a need for an annual certificate; I know there is such a need. What we wanted to make clear was that in order to get an annual certificate an annual inspection would have to be carried out and that this would be paid for by the applicant and not by the taxpayer.
The Minister has not said anything this morning to convince me that the wording that was in the Bill when it left this House, which was checked by all and sundry, should now be changed by way of amendment by the Seanad. He has not convinced me that this is better wording. I do not believe he has impressed anybody in the House that this is so. This is an utter con trick. We are now supposed to just nod this provision through and defeat the whole purpose for which we debated this Bill.
In reply to the Minister's statement that this legislation is urgent, if he wants to check back on the records of this House for last January, October, September or August, he will see that I consistently stood up in this House, as did other members of the Opposition, and asked the Taoiseach where was the Intoxicating Liquor Bill, 1986, which was produced by the previous Government. The Government did nothing about this Bill for 13 months. When I brought in a Private Member's Bill all hell broke loose and the Government said they were going to bring in their own Bill. They suddenly reproduced the Intoxicating Liquor Bill, 1986, which was drafted by the last Government, as the Intoxicating Liquor Bill, 1988. I produced the Private Member's Bill because there was a need to deal with the problem of under-age drinking.
This Bill is now being rushed through the House and we have not time to question the Minister on a matter of important detail. The Minister said that there may be a gap between the time the certificate runs out and the court case but that is a matter of detail that we will have to sort out. It is some detail. What will happen to the licensee who may be selling alcohol without a licence? The Minister said that there might be a gap of, perhaps, a week, two weeks or three weeks but that this detail can be worked out later. It cannot be worked out later because there will be no licence in place and the person serving a drink can be dragged into court because he has no licence or because his licence has lapsed.
Do not tell me that we are not entitled to an hour and a half, a few days before the Dáil goes into recess, to debate this matter in detail. I have waited 13 months for this Bill. It would not be before us if I had not introduced my own Private Member's Bill. We are now told that we cannot have a proper debate because this is urgent and because there are many people waiting for these licences. We are supposed to be the big bad boys who are holding them up. We are not the ones who are holding them up. The Government held them up for 13 months. I object to that sort of statement and I object strongly to any Opposition being muzzled from asking proper questions. I object to the Opposition being muzzled when they complain bitterly that an amendment that they had proposed, which had been accepted by this House and by the Minister, the wording of which presumably was checked, is not now being accepted. The Minister's substitute comes in and says: "There are other people who know better than you do. They can speak English better, or they can draft legislation better". There are many people in the Law Library, who can advise me and everybody else, who are just as efficient as anybody else at putting legal words together. If the wording was good enough for Committee Stage, Report Stage and Second Stage in the Seanad, it is good enough now. It is not good enough to come in here and try to persuade me that by substituting other words we will achieve the same thing with greater clarity. All reference to an annual inspection is being deleted and that is supposed to give greater clarity to everybody, including the courts, that there will be a need for an annual inspection. I am not going to be fooled.
This is an important issue. An agreement was made between the Whips that we would have a debate until 12 o'clock. I asked half an hour ago if the Minister would send word to the Government Chief Whip to ask him if he would please make arrangements for additional time. I offered to sit until 2 o'clock or 3 o'clock tomorrow morning——
Or all night.
——if necessary to debate this matter and to have it cleared so that the people about whom the Minister is so worried will get their licences. I agree they need their licences urgently but we did not hold them up. We had to rush this Bill through Committee Stage and extreme pressure was put on us despite the fact that we waited 13 months for legislation that was drafted in 1986. I have not received even the courtesy of a reply from the Government Chief Whip as to whether we can get extra time. Did the Minister even bother to send out a message to him? No, because he knows that when 12 o'clock comes the Ceann Comhairle will stand up and all that Barrett has said for the last hour and a half he could have been saying out in Kildare Street because it is not going to make a whit of difference. Only amendments tabled in the name of the Minister will be put at 12 o'clock. What an abuse of democracy. There are young children in that Gallery who think that this is a democracy and a democratic assembly. It is the greatest sham of all time.
Hear, hear.
It is the greatest disgrace that the Fianna Fáil Government who prance around the place pretending that they are friends of the licensed vintners, meet them in the bar, clap them on the back and say, "We will look after you", but when the Bill went to the Seanad it was a different story. They are putting through legislation which is defective and which is going to involve disputes in the courts in future. It is an utter and absolute disgrace — I never object to having breaks — that when there is an offer made from the Opposition benches that we sit for another two or three hours in order to debate this issue properly, we do not even get the courtesy of a reply from the Chief Whip's office to say yea or nay.
It is a dictatorial approach.
They did not even bother to send a message. This really gets under my skin. It annoys me that you go to the trouble to prepare something, you put a lot of effort into it and you just get the two fingers from the other side. When is it going to stop?
Chance a vote.
I will now call a vote if you are in agreement.
In relation to the point made by Deputy Colley, I would like to assure her that it is clear that this certificate falls annually and a new certificate is required annually. That is the intention and that is the effect of this——
That is only a bit of paper, not an inspection.
The delivery is a matter for the regulations, which will say that a person may apply in respect of the period commencing immediately following the expiration of the Bord Fáilte certificate which is then held by the applicant. I repeat. The application would be for the period immediately following the date on which the one year certificate expires. It is clear that that is the intention and that is the reality of the section. Deputies need not be concerned because that matter will be covered further in the regulations.
Bord Fáilte are relieved from carrying out the annual inspection.
They are not. That is what I have been trying to explain.
(Interruptions.)
As it is now 12 noon, I am required to put the following question in accordance with an order of the Dáil of this date: "That Seanad amendments undisposed of are hereby agreed to in Committee, that the agreement to the Seanad amendments is hereby reported to the House, and the Dáil hereby agrees with the Committee in support."
The Committee divided: Tá, 68; Níl, 59.
Tá
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Briscoe, Ben.
- Burke, Ray.
- Byrne, Hugh.
- Calleary, Seán.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- MacSharry, Ray.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wright, G.V.
Níl
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Begley, Michael.
- Bell, Michael.
- Boylan, Andrew.
- Bruton, John.
- Bruton, Richard.
- Burke, Liam.
- Carey, Donal.
- Clohessy, Peadar.
- Colley, Anne.
- Connaughton, Paul.
- Cosgrave, Michael Joe.
- Creed, Donal.
- Crowley, Frank.
- Cullen, Martin.
- Deenihan, Jimmy.
- Desmond, Barry.
- Doyle, Avril.
- Dukes, Alan.
- Durkan, Bernard.
- Farrelly, John V.
- FitzGerald, Garret.
- Fitzpatrick, Tom.
- Flaherty, Mary.
- Flanagan, Charles.
- Griffin, Brendan.
- Herney, Mary.
- Hegarty, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Howlin, Brendan.
- Hussey, Gemma.
- Kavanagh, Liam.
- Keating, Michael.
- Kemmy, Jim.
- Kennedy, Geraldine.
- McCartan, Pat.
- McCoy, John S.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- Naughten, Liam.
- Nealon, Ted.
- Noonan, Michael (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Malley, Desmond J.
- O'Sullivan, Toddy.
- Quill, Máirín.
- Quinn, Ruairí.
- Shatter, Alan.
- Sheehan, P.J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Wyse, Pearse.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Briscoe; Ní, Deputies O'Brien and Flanagan.
Question declared carried.
A message will be sent to the Seanad acquainting it that the Dáil has agreed to the amendments made by the Seanad.