I move: "That the Bill be now read a Second Time."
I welcome the opportunity to bring the Intoxicating Liquor Bill 2003 before the House. At the outset, I want to thank the Chair and members of the Joint Committee on Justice, Equality, Defence and Women's Rights for providing me with the opportunity to outline the general scheme of the Bill at their meeting on 11 June. Arising from this discussion, I have introduced a number of changes in the Bill and I will mention these when I am dealing with the detailed provisions. Before doing so, however, I would like to make a few general points.
This Bill is an interim response to the recommendations of the Commission on Liquor Licensing and the first report of the Strategic Task Force on Alcohol established by the Minister for Health and Children. The Commission on Liquor Licensing was established by the Government in late 2000 to review the liquor licensing system and to make recommendations for any necessary legislative changes. By the time it had concluded its work at the end of March 2003, the commission had submitted four reports covering various aspects of the licensing laws and collectively containing over 130 recommendations.
One of the commission's recommendations is a codification of intoxicating liquor law that is currently contained in the Licensing Acts 1833 to 2003, spanning three centuries. Such an exercise is long overdue, and I have therefore accepted this recommendation without hesitation. The many structural reforms to the licensing system that have been advanced by the commission will be addressed in the codification Bill.
I do not wish to enter into the detail of the codification exercise at this stage, other than to say that it should be guided by the following principles: the aim should be a rationalisation of the law in order to make the licensing code more user-friendly and accessible for licensees and the public alike; it should also aim to simplify and streamline application and renewal procedures, where possible, in order to reduce unnecessary administrative burdens and overheads; open and transparent decision-making procedures, including adequate advance notice for designated notice parties, and opportunities for public consultation are essential; clear and coherent legislative provisions that leave no room for ambiguity or doubt are needed in order to facilitate compliance with and enforcement of the law; the importance of public order, public health and planning aspects must be recognised in order to prevent, and reduce the incidence of alcohol-related harm; and objective criteria are required for the granting of licences that recognise, among other things, the need for an appropriate spatial distribution of licensed premises in order to serve the needs of local areas and their communities.
I am happy that the preparatory work is already under way in my Department. I expect that an outline of the codification Bill will be available by this time next year. In the meantime, I have decided to bring forward the present shorter Bill to respond to urgent recommendations of the commission.
The proposals set out in the Bill are consistent with the concerns outlined in the interim report of the Strategic Task Force on Alcohol that was published last year, and are also relevant in the context of the special initiative on tackling alcohol abuse set out in chapter 2 of the current social partner agreement, Sustaining Progress.
The proposals set out in this Intoxicating Liquor Bill form part of the State's response. Other actions are being considered by my colleagues, the Minister for Health and Children and the Minister for Transport. In the area of advertising, the Minister for Health and Children is proceeding with the preparation of legislation to reduce the exposure of children and adolescents to alcohol advertising, sponsorship, marketing and promotions. A new road safety strategy is currently being developed by a high level group and drink driving issues are being examined in that context by my colleague, the Minister for Transport, Deputy Brennan.
I want to turn now to the detail of the Bill. Section 1 contains the Short Title, collective citations, construction and commencement provisions. Section 2 contains definitions. The definition of "bar" is taken from the Intoxicating Liquor Act 1988. It is important because a distinction is made in various sections of the Bill between "licensed premises" and "the bar" of licensed premises. Admission to the bar of licensed premises is prohibited in certain cases but access to other parts of the premises is not affected, such as a function room or dining room.
This section also contains definitions of "drunken person" and "disorderly conduct." Arising from the discussion with the joint committee, I have brought the definition of "drunken person" into line with section 4(1) of the Criminal Justice (Public Order) Act 1994. This provides that it shall be an offence for any person to be present in any public place while intoxicated to such an extent as would give rise to a reasonable apprehension that the person might endanger themselves or any other person. The broad definition of "disorderly conduct" takes account of recommendations of the Commission on Liquor Licensing. Section 3 repeals a number of provisions that are being replaced in the Bill and I will mention them as I move through the sections.
The provisions set out in Part 2 of the Bill update the law regarding conduct on licensed premises. Sections 4, 5 and 6 deal with drunken persons and drunkenness, while sections 7 and 8 deal with disorderly conduct. They update and replace provisions in the Refreshment Houses (Ireland) Act 1860 and the Licensing Act 1872 which have fallen into disuse.
Section 4 prohibits the supply of intoxicating liquor to drunken persons by licensees, as well as drunkenness in the bar of licensed premises. It provides that a licensee shall not admit a drunken person to the bar, and that where a person is drunk on leaving licensed premises, it shall be presumed that the person was drunk while on the premises until the contrary is proved.
Section 5 prohibits the supply of intoxicating liquor to drunken persons in licensed premises by a person other than the licensee. In other words one cannot buy by proxy or through an intermediary when one is drunk.
Offences by drunken persons are set out in section 6. It provides that a drunken person shall leave licensed premises on being requested to do so by the licensee or by a garda. Moreover, such a person shall not seek entry to the bar of any licensed premises – access to a restaurant or other facilities within a hotel will not be affected. A Garda power of arrest is also included.
Section 7 places a duty on licensees to preserve order on licensed premises, while section 8 prohibits disorderly conduct on such premises. A person engaging in disorderly conduct must leave the premises on being requested to do so by the licensee or a member of the Garda Síochána and shall not re-enter the bar of the premises within a period of 24 hours. A Garda power of arrest is included.
The section also provides that a licensee may refuse admission to a person convicted of an offence under the section where such admission could reasonably be regarded as involving a substantial risk that the person would engage in disorderly conduct.
Section 9 extends the temporary closure of premises penalty to include offences under several sections, including sections 4 which deals with supplying drunken persons and permitting drunkenness, and section 7 which deals with the duty of the licensee to preserve order. While temporary closure of the premises will be mandatory in the event of conviction, the District Court will retain a margin of discretion with regard to the duration of the closure period. This penalty is confined under existing legislative provisions to convictions for under-age drinking.
I do not agree with a view that has been expressed that the temporary closure penalty should not apply to a first offence but rather to the second and subsequent convictions. We need to send a strong message from this House that drunkenness and disorderly conduct on licensed premises are not acceptable. Changing the provisions of the Bill in the manner suggested would not serve that purpose. It would send out the message that everyone has one free go before being convicted of the offence of serving people who are drunk on their premises.
Part 3 contains amendments to existing legislative provisions, including, in particular, those relating to persons under the age of 18 years set out in Part IV of the Intoxicating Liquor Act 1988.
Section 10 provides that Thursday night closing time will revert to 11.30 p.m. from 12.30 a.m. The Commission on Liquor Licensing has recommended this change and it is also in line with the recommendations of the Strategic Task Force on Alcohol. I want to indicate to this House, as I indicated in Seanad Éireann, that if this is not an adequate rebalancing of the licensing hours, I will revisit the issue in the context of the 2004 Bill to which I alluded earlier. I say that because Deputy Deasy indicated strongly that it was his view that closing times on Fridays and Saturdays should also be brought back to 11.30 p.m. I want to do what has been recommended by the Commission on Liquor Licensing. If it transpires that Deputy Deasy's suggestion retains some force, the matter can easily be revisited in the context of the 2004 legislation.
Section 11 replaces section 5 of the Act of 1927 which makes provision for the grant of special exemption orders. The section contains three important changes. First, in subsection (7) it provides for a local authority a role in determining the duration of special exemption orders in its administrative area. The District Court will retain discretion in granting such orders but will be required to have regard to any resolution adopted by a local authority in the area in which the premises are located. The local authority must consult with the Garda and consider the views submitted by the Garda and any other person, including views on health aspects, in advance of adopting a resolution.
Second, the grounds on which objections to the grant of such orders may be made under subsection (6) are being extended to include undue inconvenience or nuisance to persons residing in the locality or an undue risk to public order in the locality. At present, the grounds are limited to undue inconvenience to persons residing in the vicinity of the licensed premises, a narrow category of people whose interests could be affected.
Third, the possibility of the District Court requiring an applicant for a special exemption order to install a closed circuit television system is specifically mentioned in subsection (4)(b). I am not in favour of requiring all licensees, irrespective of the size of the premises and regardless of whether they apply for special exemption orders, to install CCTV. The need arises mainly in relation to larger premises, and the provision I propose will enable the Garda, which is a notice party, to request the court to attach the CCTV condition where it has reason to believe it to be justified or appropriate. A CCTV system may seem to be a small imposition on the proprietor of a large and substantial premises, but in the case of small premises on the main streets of towns such as Loughrea or Killorglin in County Kerry, where there are many premises and where turnovers are not large, the installation of a CCTV system could be economically onerous and disproportionate, bearing in mind the potential implications for public order and the like.
Section 12 prohibits the provision of entertainment during the 30 minutes drinking-up time that is permitted under existing provisions. Section 4(2) of the Public Dance Halls Act 1935, which permits dancing during the 30 minute period following expiry of a special exemption order, is being repealed. The Commission on Liquor Licensing has recommended this change to ensure that the original purpose of facilitating an orderly clearing of premises is not defeated.
Section 13 substitutes a new section for section 32 of the 1988 Act. It prohibits the purchase of alcohol for, or delivery to, persons under the age of 18 years of age. However, the purchase or delivery of intoxicating liquor for consumption by a person under 18 years in a private residence where a parent or guardian has given explicit consent shall not be unlawful. The provision that is being replaced is flawed in so far as it permits the delivery of intoxicating liquor to persons under 18 years in a private residence without parental consent.
Section 14 substitutes a new section for section 34 of the 1988 Act. It prohibits persons under the age of 18 years from bars of licensed premises. However, under subsection (2), a licensee may permit a child – defined as a person under the age of 15 years – to be present if accompanied by a parent or guardian, but not after 9 p.m. This discretion shall not apply where it appears to the licensee that the child's presence in the bar could reasonably be regarded as injurious to the child's health, safety or welfare.
Under subsection (3), a licensee may permit a person aged 15 to 17 years to be present in the bar unaccompanied by a parent or guardian, but not after 9 p.m. Subsection (4) contains a number of exemptions to the general prohibition. The remaining subsections are broadly similar to existing provisions in section 34 of the 1988 Act.
As the House will be aware, I had originally suggested an 8 p.m. cut-off, but I amended this to 9 p.m., having listened to various views expressed on the subject. The provision is reasonable and takes account of the need to facilitate families while at the same time promoting compliance with and enforcement of the licensing laws. I understand that children's charities, including Barnardos and the ISPCC, welcome the restrictions on the presence of people under the age of 18 years in bars. The Irish Medical Organisation has also written to me on the subject. It is supportive of the general thrust of the Bill even if, in its view, the proposals do not go far enough in some areas.
It has been suggested that not allowing persons under the age of 18 years in the bar of licensed premises after 9 p.m. is in some way anti-family or that it will convey an image of the country as not being welcoming to families. I cannot subscribe to that view and I believe that most reasonable people support the Government's approach on this issue. If I was in a hotel anywhere in Ireland and saw a notice above the entrance to the bar that no persons under the age of 18 years will be admitted after 9 p.m. I would not consider the hotel to be anti-family or anti-child, nor would I feel unwelcome if I was there on a family holiday. Indeed, having been on many family holidays in many Irish hotels, I might welcome some solace after 9 p.m. and the excuse that it was illegal as a means of escaping some of the blandishments of junior members of families in the hotel.
In this context I emphasise that in any hotel it is open under this system for the patron who is there with his or her family to bring out whatever alcoholic beverage he or she wants to drink in the company of his or her children in the lounge and general public areas, such as any function room, dining room or restaurant. No offence will be committed as long as the young persons are not admitted to a bar within the meaning of the Act.
Section 15 introduces an entirely new provision in the form of a new section 34A to be inserted in the 1988 Act. It requires that persons aged 18 to 20 years inclusive carry an age document to enter and remain in the bar of licensed premises after 9 p.m. Those are the only hours during which it is required to carry such a document. An age document may be one of the following: a Garda age card, which is the official Garda card containing a hologram and photograph of the carrier; a passport; an identity card of any member state of the European Union; a driver's licence; and a document prescribed in regulations to be made by the Minister. An age document is not required to gain access to other parts of the premises so that if a publican proposes to have a room set aside in his premises for entertainment or family matters or the serving of food, as has been suggested in much public commentary, there is no requirement for an age card to be provided to gain access to any such part of the premises.
This new obligation to produce an age document to gain admission to bars is intended to assist licensees in complying with provisions relating to underage consumption of alcohol and to assist the Garda in enforcing the law. While the carrying of an age document by 18 to 20 year olds will be mandatory after 9 p.m., this does not remove the obligation on licensees to ensure that intoxicating liquor is not supplied to or consumed by persons under 18 at any time. For example, a hotelier cannot serve under 18 year olds with alcohol outside the bar of his premises. Where a publican reallocates space within his premises so as to provide family entertainment rooms, he or she must still undertake the legal responsibility of not serving drink to under 18 year olds wherever they may be on the licensed premises.
Whenever a licensee is unsure if a person has attained the age of 18 years, production of an age document should be demanded. It has been suggested that some people over the age of 21 years, possibly up to the age of 24 years, sometimes look to many people as if they could be under the age of 18 years. From time to time, some fresh faced people suffer embarrassment as a consequence. The introduction of an age card and a general requirement that it be produced should lessen the embarrassment in their case because they will always be able to carry it against the off-chance that they will be challenged.
Arising from preceding amendments, section 16 contains a number of further amendments to the 1988 Act. It amends sections 31(2) and 33(1) to provide that the consumption of intoxicating liquor by a person under 18 years of age is conditional on the explicit consent of that person's parent or guardian. Second, it makes it an offence for a person aged 15 to 17 years to be present in bars of licensed premises after the cut-off point. Finally, it amends the existing temporary closure order provision of section 36A of the 1988 Act – as inserted by the Intoxicating Liquor Act 2000 – to make it an offence not to affix a conspicuous notice giving details of the closure order as required by that provision.
Section 17 has been introduced following discussions with the Joint Committee on Justice, Equality, Defence and Women's Rights on 11 June during which concerns were expressed by members in relation to off-licences. It contains provisions dealing with the consumption of intoxicating liquor purchased for consumption off a premises and, for this purpose, updates and replaces section 13 of the Intoxicating Liquor (General) Act 1924. The section provides that a licensee shall be guilty of an offence if, with the licensee's knowledge or consent, intoxicating liquor supplied by the licensee in a closed container for consumption off the premises is consumed in another premises owned or controlled by the licensee or in a public place within 100 metres of the licensed premises. This limit of 100 metres is also referred to in the Criminal Justice (Public Order) Act 2003. The person who consumes such intoxicating liquor shall also be guilty of an offence. The section restates the existing prohibition on the consumption in an off-licence of intoxicating liquor bought there.
Section 18 is intended to permit any member of the Garda, whether in uniform or not, to enforce the licensing laws as recommended by the Commission on Liquor Licensing. At present, the powers of non-uniformed officers appear to be restricted to drugs-related offences under the Licensing (Combating Drug Abuse) Act 1997.
Section 19 provides that a person who claims prohibited conduct has been directed against him or her in any licensed premises may seek redress before the District Court. For this purpose, "prohibited conduct" is defined as discrimination against or sexual harassment or harassment of a person contrary to Part II of the Equal Status Act 2000 on, or at the point of entry to, licensed premises. The forms of redress currently available under the Equal Status Act are being extended to include temporary closure of the premises concerned. Moreover, where the District Court is satisfied that a person is entitled to redress and makes such an order, any person may object to the renewal of the licence of the premises concerned. That strengthening of the law provides support for the law against discrimination contained in the Equal Status Act 2000. Provision is made in subsection (6) for the Equality Authority to apply to the District Court for redress in certain cases, while subsection (7) provides that the authority may provide assistance to persons applying to the courts for redress. These new provisions extend the powers of the Equality Authority in respect of proceedings before the District Court where discrimination is an issue.
I repeat what I said during Question Time last Thursday. The proposed transfer of jurisdiction from the Equality Tribunal (ODEI) to the District Court is not intended to reflect any lack of confidence in, or support for, the work of the tribunal. The correct view to adopt is that licensees should in principle be answerable for all their actions, particularly in respect of refusals to admit, in a single jurisdiction rather than having to face conflicting penalties and policies on precisely the same matter. Senator Walsh made the point in the course of debate on this legislation in the Seanad that it would be strange to have two referees of a football match both of whom had jurisdiction to blow the whistle for the same tackle with reference to different rules. The analogy is a good one to illustrate the thinking behind this particular change in the law. At present, the District Court is extensively involved in licensing matters. It has an involvement in the annual renewal of intoxicating liquor licences, in the grant of special exemption orders to licensed premises and in the application of sanctions and penalties for breaches of the licensing laws, including temporary closure of premises in certain cases. The court has the ultimate role in determining whether or not licensees are complying with the law in relation to admitting young people or persons who are drunk.
It makes sense to extend the court's jurisdiction to include the adjudication of cases taken against licensed premises under the Equal Status Act. It is a licence renewable condition that licensees are required to operate their premises in a peaceable and orderly manner. If, for example, a licensee admits or serves a person who is violent or disorderly, he or she could be exposed to an objection to renewal of the licence before the District Court on the grounds of not operating the premises in a peaceable or orderly manner. Not admitting or serving the person may, on the other hand, expose the licensee to a claim of discriminatory action before the Equality Tribunal. A decision to permit or refuse entry or service could expose a licensee to actions in two jurisdictions which is unsatisfactory. This is the reason I propose to adjust existing arrangements. I propose that in future it will be the responsibility of the District Court to adjudicate in such cases, but I stress that the non-discrimination provisions of the Equal Status Act will continue to apply to licensees. The provision to amalgamate jurisdictions in respect of admission issues has a very narrow application.
Section 20 prohibits the supply of intoxicating liquor at a reduced price during a limited period on any day; during what is known as a "happy hour". This provision is intended to discourage practices which may lead to excessive consumption of intoxicating liquor. It will not prohibit or curtail retail practices such as sales or product promotions that take place over a period of days.
I am concerned that the licensing of national sporting arenas is not properly provided for at present and I am therefore making provision in section 21 for new arrangements in relation to such arenas. Licences primarily intended for other purposes are currently being used in such arenas. In one case a theatre licence is being used. The conditions attaching to these licences are not suited to the needs of national sporting organisations which makes full compliance with and enforcement of the licensing laws difficult. These circumstances compare unfavourably with the licensing arrangements for racecourses, greyhound tracks, national cultural institutions and the National Concert Hall. Moreover, many national sporting arenas find it difficult to generate sufficient income from sporting events alone to cover their costs. Increasingly, such facilities are being used for non-sporting events such as conferences, exhibitions or seminars. The new section will permit the limited and controlled sale of alcohol at sporting and non-sporting events in designated areas of sporting arenas and will regularise the licensing position of these arenas. It will be a matter for the Minister for Arts, Sport and Tourism to designate national sporting arenas by means of regulations and to issue certificates approving the grant of a licence in respect of prescribed areas of the arenas concerned. He and I are agreed that this new provision will not apply to – and will never be used to bring about – the sale of beer by vendors who travel up and down the stands at football matches and the like as happens in some places. We are solely discussing regularising the legally dubious de facto licensing provisions which exist at some arenas.
Section 22 provides for the making of two types of regulations including, regulations to prohibit or restrict licensees from engaging in promotional practices intended or likely to encourage persons to consume alcohol to an excessive extent and regulations to specify that particulars must be affixed to any container in which intoxicating liquor is sold for consumption off the premises to facilitate the identification of the licensee and the licensed premises concerned. The Commission on Liquor Licensing recommended that promotional practices conducive to or likely to result in excessive consumption of alcohol should be prohibited by law. This view is supported by the Strategic Task Force on Alcohol. Section 17 of the Intoxicating Liquor Act 2000 provides that the name of the owner and the address of premises shall be clearly indicated on a label to be affixed to any container in which intoxicating liquor is sold for consumption off the premises. This section has not been implemented and is now being repealed.
Deputy Costello debated the merits and demerits of that with me in the context of the Criminal Justice (Public Order) Bill. There are serious practical problems with it. That is why a regulation-based approach seems to be appropriate because it will enable me to fine tune what could or could not be expected of people selling drink in off-licences. I have met a number of off-licensees, who run both small and large scale operations, and they have emphasised the difficulty of, for example, ripping open every case of wine to stamp individual bottles or of opening six packs of alcohol to mark individual containers. When bringing the regulations forward, I intend to consult widely within the trade in order to achieve a reasonable result and not impose blanket obligations on people which could be counterproductive and of little use legally.
However, I accept Deputy Costello's remark that this could be useful in some cases. I am trying to distinguish between the case of wine bottles on the one hand, where it would probably be no use, and the take-away cans of beer or naggins of spirits found in the possession of young people, where it would be useful in assisting the gardaí to find out where the young people were sourcing the material. It should be emphasised that no matter what view is taken on the matter, it will never be the case that where a young person is found in possession of alcohol emanating from a particular source, a conviction beyond reasonable doubt against an off-licensee for supplying them could be properly grounded on that mere fact alone.
Implementation of these provisions by means of regulations is intended to avoid any later challenge to the legislation on the grounds that proper procedures had not been followed. I am advised that I must notify the European Commission of proposed regulations under this section in accordance with the technical standards and transparency directives. These directives are intended to enable the European Commission and the member states to examine in advance proposed national technical rules in the interests of transparency and the smooth functioning of the internal market.
Section 23 deals with the application of the Bill's provisions to registered clubs. Sections that amend or replace existing sections in the Intoxicating Liquor Act 1988 already apply to clubs by virtue of section 16 of the 2000 Act. Section 24 determines the jurisdictions of the courts in relation to sections 9 and 19. Section 25 contains two amendments to the operation of the Equal Status Act 2000. The first amendment is intended to safeguard the discretion of licensees regarding the presence of persons under 18 years of age in bars of licensed premises. That proposal is in line with the recommendations of the Commission on Liquor Licensing and the Strategic Task Force on Alcohol.
The second amendment provides that a licensee may set a minimum age for the sale and consumption of alcohol that is above the statutory minimum of 18 years as long as the policy is publicly displayed and implemented in a non-discriminatory manner. It is possible for an off-licensee, if he or she regards it as socially responsible behaviour, to state that they will not supply spirits in large bottles to persons under a certain specified age as long as it is stated in a notice in the premises and it is applied on a non-discriminatory basis to all persons to whom it should apply. The age limits will not be enforced by the gardaí as the statutory limit will remain at 18 years. However, a person who believes that they have suffered discrimination and has grounds for believing that a licensee does not operate the policy in a fair and non-discriminatory manner may seek redress before the District Court. I can give the House an example. If there was a rule in a premises that spirits would not be served to persons under the age of 24 years and the rule was displayed in the premises and if it transpired that members of the Traveller community were the only people to whom that rule was applied in practice, that would be a discriminatory application.
I wish to refer again to the codification Bill I intend to bring before the House next year. It is not a consolidation Bill but a codification Bill as it is not a mere restatement of the existing law but a reworking of the law to include any necessary amendments. It will provide the House with an opportunity to revisit the provisions set out in this Bill. If we are not getting the legislation right, if brighter ideas are available or if there are areas in need of reform, such as in the area of theatre licensing – I am signalling this now in case anybody is going to make a significant investment and claim afterwards that they were not given advance knowledge – which requires substantial reform, we will have the opportunity in a short time, in terms of legislative history, to consider those issues.
The same applies to nightclub owners, who have made a strong case for a separate nightclub licence. The fact that I am not dealing with their proposal in this Bill does not mean that the door is closed to it. I hope the House and my Department will have the opportunity over the next number of months to look at many issues which have been raised in the debate on this Bill and see if they require to be restated in the codification Bill. This Bill will, I hope, be repealed by the codification Bill. Every measure in the Bill will be liable to revision and review some time in 2004.
