Civil Law (Miscellaneous Provisions) Bill 2021: Committee and Remaining Stages

SECTION 3

I move amendment No. 1:

In page 7, lines 23 to 25, to delete all words from and including “premises,” in line 23 down to and including line 25 and substitute the following:

“premises, or

(c) the manager of the premises.”.

As I said on Second Stage, the amendment relates to the part of the Bill which defines the specified person whom a garda can hold accountable for a situation in a bar or outdoor space that is inappropriate and whom the garda can demand to stop people behaving in the way they are behaving, to disperse the crowd or the like. Basically, it is very loose as a "person for the time being in charge of the premises". That could happen to be one of the young people who have been referred to many times in the course of the debate, somebody who is simply there as a bartender or somebody who has taken over while, perhaps, the manager or the owner of the premises is away or at lunch. It is not appropriate that this person would be held to account in that way in the legislation. The Minister of State should deal with that issue and explain what the intention is there.

I know many of the young people who work in these premises. At different times they can find themselves left alone or left in a situation where something can go wrong. They are certainly not accountable. They are probably working for the minimum wage, or close to it, in these premises. It would be very remiss of the legislation to punish somebody in those circumstances. That is the reason we have put this small amendment forward. If the Minister of State can put forward an alternative way to deal with it, I would welcome it. In the meantime, we will be pressing the amendment.

I will not accept the amendment. The proposed amendment removes paragraph (d) of the definition of a "specified person" to exclude, in the context of an outdoor seating area, any other person for the time being in charge of a premises. With regard to a relevant premises, a specified person means a licensee, occupier, manager or another person in charge of the premises at the time. This is important as these persons may all be given a direction by a member of An Garda Síochána where that member suspects with reasonable cause that a specified person is not complying with the Licensing Acts, the Registration of Clubs Acts, an authorisation or the provisions in this Bill insofar as they relate to an outdoor seating area. The definition of a "specified person" captures the persons in charge of a licensed premises. This definition was considered in conjunction with the Office of the Attorney General and it was deemed necessary that the definition include this cohort of persons, given the offence in particular.

Amendment put and declared lost.

I am going to go back and take each section of the Bill.

SECTION 1
Question proposed: "That section 1 stand part of the Bill."

You took me by surprise, Chairman, when you went to section 3 immediately. On the definition section, we only had sight of the Bill yesterday and there was no pre-legislative scrutiny so perhaps we can have a little elucidation of the definitions from the Minister of State. One of the issues, and the Minister of State mentioned it in her commentary as well, is that the number of seated patrons who can be accommodated in an area should not exceed the number of patrons who may be accommodated in the licensed premises. Why is that necessary? If, for example, one had a very small pub and for fire reasons it could not accommodate more than 40 people but one could accommodate 50 people happily in a forecourt area, why be so prescriptive about that and make it a point of conflict, perhaps, in terms of somebody counting the number of people who are properly seated and distanced in an outdoor seating area? That seems to be an unnecessary addition in that regard.

The definition of "outdoor seating area" in section 1 includes that it is "on private land abutting the premises where ... the land is owned, or occupied by way of a lease or licence, by the licensee of the premises" and "a licence is not in force, or a certificate of registration under the Act of 1904 is not applicable and in force, in respect of the area". What, specifically, is meant by that definition?

This definition is very prescriptive. I heard the Minister of State refer to it. It is another example of overreach and overkill. Deputy Howlin referred to it as well. A small pub I know of in Ballylooby, Keating's, is closed, unfortunately. It is a lovely thatched pub but it is impossible now to get insurance for the building. It is never going to open again now thanks to the lockdown. It was run by an elderly couple and I thank that lovely family for their service to the public over the years. It was a tiny pub in a step down from a bend in the road in the lovely village of Béal Átha Lúbaigh near Cathair Dún Iascaigh in Tiobraid Árann theas. The pub consisted of a tiny room that would fit into the backyard, which is much bigger. Why is it necessary to insert in the legislation a requirement to have a seating area no greater outside than inside?

My understanding of some of the seating arrangements that the Leas-Cheann Comhairle spoke of in Gaillimh and all over the country, and which was supported by Tipperary County Council, is that some of what is being installed is public seating. It is a shared space. Much was made of the Barcelona Declaration and that shared spaces can be used by patrons from any restaurant or by people who just want to sit down and drink a bottle of water they brought with them. How is a publican going to enforce this regulation in an area outside? If there are 22 people, will he ask four to leave because there are only 18 seats inside the premises? I refer to normal times, not Covid times because premises may now only have three seats inside because of the restrictions.

This is overreach. Whoever drafted this legislation certainly never stood behind a bar or shop counter and has no understanding of how to deal with the public. We want the public to be with us and the majority are law-abiding citizens who respect business owners and have good banter and craic. How is it going to be possible to insist that there must be the same number or less outside as inside? It makes no sense. We are going outside so that the economy can take off like a rocket, as the Tánaiste talks about, and to build back better. I did not know where that expression came from when I heard it first but I do now. It did not come from the Tánaiste, although he is using it. It is being touted all over the world and there is a very specific reason for it.

How is it going to be possible to insist that people must get up and leave the outside part of a premises? They may not be customers in the first place but customers of an adjoining bar or food outlet, or perhaps just resting. This is farcical in the extreme. We then have the non-descriptive nature of the licensee or the person in charge. It could be a young person who is not vaccinated because he or she could not get the vaccine. The person might be overseeing alone at a quiet time or covering a tea break or something like that. Are these people going to be prosecuted? Is the rush and indecent haste to draft the legislation causing these kinds of silly aspects to be included? The requirement not to have more customers outside than inside turns the whole reason for outdoor dining and seating on its head. "Amuigh Faoin Spéir" was a wonderful programme which used to be on television and being outside means being able to breathe in the lovely air. This measure is over-prescriptive and nonsensical.

I listened carefully to the Minister of State's reply. She is of course correct that the definitions provide a definition for an outdoor seating area in relation to a licensed premises. However, section 6 does not apply the Criminal Justice (Public Order) Act 1994 to outdoor seating areas in relation to a licensed premises. It extends that Act to just "an outdoor seating area". I think I was clear the first time but if not, is it the intention of the Minister of State that the Criminal Justice (Public Order) Act 1994 now applies to all outdoor seating areas on private land in this State, or is it her intention that this provision will apply only to outdoor seating areas in relation to a licensed premises?

I ask that because there is a world of a difference. Is a patio or someone's yard now to be subject to the Criminal Justice (Public Order) Act 1994? That is a simple question and I would like an answer to it. As I said, I agree with what I think the Minister of State means to introduce by this Bill, including the bits that are inappropriate for inclusion in this Bill but that I do not have a problem with per se. I do not agree, however, with the idea that somebody can be subject to the Criminal Justice (Public Order) Act 1994 within the curtilage of his or her own home. It is not entirely clear what the constitutional position would be in that regard, but I dare say there would be difficulties with it.

I do not think that is what the Minister of State intends to do. I see the Minister of State shaking her head and I also saw the Minister shake her head. I ask them to say that and do something about it, please. That is why we are here and why we have Committee Stage. It is why we bother to legislate. We do it to get rid of anomalies. Nobody is perfect and this is not meant as a criticism of the parliamentary draftsman. It was clearly drafted in a rush, but if there is an ambiguity, it should be removed before it becomes law. I am not even saying it must be done now. It should be done in the Seanad and the Bill brought back to this House, if that is what it takes. I ask the Minister of State to please address the point.

This is rushed legislation, obviously, because the issue and the solution only emerged in the last week or so. Someone has probably sat up half the night, probably for a couple of nights, drafting this Bill. There is no way we can anticipate everything that may be wrong and definitions are required. However, some valid issues have been raised regarding what is intended and these must be tightened up.

The Minister, Deputy Humphreys, said earlier that it is not intended to permit a bar in the outdoor area to serve take-away drinks. Will she clarify if that means people can still go inside the premises and buy take-away drinks or does this provision exclude that in its totality? I am not at all clear about that. I can understand not having a bar outside but the wording is not clear. This has been going on for months and sometimes it is a lifeline for certain establishments.

To respond first to Deputy McNamara, his interpretation is not correct. An outdoor seating area is clearly defined as an area "abutting the premises". That is the area we are talking about here.

Regarding the number of seated patrons, which was raised by Deputies Howlin and Mattie McGrath, the number of seated patrons who can be accommodated in the area must not exceed the number of patrons who may be accommodated in the licensed premises. In addition, the area should contain sufficient seating to accommodate this number of seated patrons, cannot contain any counter or barrier across which intoxicating liquor can be served to the public, and the sale or supply of intoxicating liquor by the licensee in this outdoor seating area should not be the primary purpose of the business. This is a common-sense provision to ensure that the licensee is managing the number of patrons that he or she is used to having on the premises.

Will the Minister of State repeat that please?

The sale or supply of intoxicating liquor by the licensee in the outdoor seating area should not be the primary purpose of the business.

Basically, they will be able to serve alcohol there but it will not work like an off-licence. It is for the patrons on site. What this is doing is-----

I am seeking clarification because the primary purpose of a pub is to sell drink.

Yes, but it is only-----

If the primary purpose is not to sell drink in an outdoor setting, what is it? How is any pub covered?

The purpose here is to serve alcohol for patrons who are seated outside the licensed premises.

That is the primary purpose.

Yes, that is my understanding-----

What is not the primary purpose?

Let the Minister of State finish.

The Minister of State has twice read a sentence that is completely unclear to me.

It is for serving customers who are on the licensed premises. The purpose of the Bill is that they can be served alcohol within the licensed area outside and adjoining the premises. That is what this Bill covers, namely, the serving of alcohol to customers of the establishment in an outdoor area of that establishment.

What is the importance of the notion of this not being the primary purpose of pubs? Selling drink is their primary purpose, surely.

The important word is "serving". It is not an off-licence.

I wish to ask a question about serving drinks to take away. Does that still happen within the premises? Is that excluded?

I said earlier that we should all listen to Deputy Howlin, who has far more experience than I. He asked a very logical question. While we may not agree on the primary purpose of a pub, the publicans that I know, and I am sure that he knows too, give far more than that. They give service with a smile and they look after their customers. They are ringing some of their customers to make sure they are all right because they have not seen them in more than 15 months. They are telling them that they are open for outdoor drinking and that they can make them comfortable. That is the kind of relationship between barmen and owners and their customers in pubs all over the country, but this is confusing. It is mind-boggling.

I have referred to the public seating in the square in Cathair Dún Iascaigh, which is a huge addition to the town. I compliment Mr. John O'Meara and his team in the county council and everybody associated with it. It is lovely to see people sitting out, especially when the weather is nice. They sit out there on a Sunday morning before any pub is open and at different times throughout the day.

There is a dilemma here. The Minister of State has said that there cannot be any more customers outside than would fit inside. All the publicans want to do, as Deputy Howlin said, is fulfil their primary purpose which is to sell alcohol but they have a relationship as well. This is not about them and us because we are in this together or whatever phrase was dreamt up with Covid. They look after their customers, with the ní neart a chur le chéile and the fáilte. The tourists love to see it and they love to meet bar tenders, to interact with them and to find out about the culture in the area and so on. People can congregate on the outside seating which is long and fronts a number of premises, including the Lazy Bean Café, a very popular eatery and several pubs, one of which has not reopened yet. How is a garda to determine, on inspection, whether the people outside are patrons of this, that or the other pub or the eating house? How are gardaí going to implement this silly provision? I urge the Minister of State to delete it. It will not be possible to quantify. It would be fine in situations where there is one pub in a village and nothing else around the yard or the public area but not on normal street scapes. We saw images earlier of crowds outside Kennedy's pub but we do not know where they were from. The barman would probably know because he is serving them but people can come and sit down and then move on again. They can sit down in passing when they see someone they know and talk to them for a few minutes. I know that the Government does not want us to talk to anyone any more. It wants this country to be a lonesome, cold place like some European countries where they do not engage with people. That is not the nature of the céad míle fáilte in the tigh tabhairne in Tiobrad Arann or anywhere else in the country. It is a cultural experience, a discourse, exchange and interaction with people. That is part of going into these places or sitting outside them.

This is not workable. It is nonsensical to say that publicans cannot have any more outside than would fit inside because people could be customers of a number of premises, or none. It is not workable. We are supposed to be introducing legislation to help An Garda Síochána who we must support when they are being fair and even handed but gardaí are going to be running around like ducks and drakes trying to find out whether people are in this or that pub. It does not make sense. If a garda or a health inspector visits a public house after hours or during hours, they deal with the people in it but when people are outside it is a different story because they might not be customers of the licensed premises. As Deputy Murphy said, they could have purchased their drink in an off-licence up the street and then sat down. How is the publican going to move them on? There are measures in this Bill that are supposed to correct the unintended consequences of earlier legislation drawn up to support outdoor dining and drinking but the Government is making a bad situation worse.

I am a little confused. Issues arise with regard to the licensee and the licensed premises because there are situations where the licensee is not the person who runs the bar. The bar may be leased by the licensee to someone else. The licensee applies for the licence each year but is seldom, if ever, on the premises and so it is outside of his or her control. The other issue is that often the outdoor seating areas are in a public place, on a street or a square, for example and are shared. People could order from the bar on the left hand side or the right hand side of the square and the order is brought to them. To be able to say which bar they are patronising depends on knowing from which premises they ordered and that might depend on which bar tender happened to be walking past at the time they sat down. It is difficult to get clarity as to whether a premises has patrons outside equal to the number that could be accommodated inside. That is something that needs to be sorted out.

There are also situations, including in my own county, where the outdoor seating area is at the back of the bar and the only way a customer can get to it is to walk through the premises. When they want to leave, they have to walk back through the premises again. There are all kinds of different situations and we are trying to accommodate them all in legislation which, for some reason or another, is written a little tight. It does not allow for the different situations that apply everywhere in the country.

There are situations where multiple premises are sharing the outdoor space in which people congregate and the seating thereon. People can order food from one premises and at the same time, order alcohol from another. Some effort must be made to clarify these issues as we move through this process. I absolutely appreciate that this has been rushed, as others have said. We need to stand back a little, while recognising that it will all fall, hopefully, on 30 November and is not here forever. The maximum amount of space needs to be given to ensure that we have a regulated situation that will work for people. We do not want to introduce legislation that will not work or that is impractical.

In response to my question the Minister of State told me that an outdoor seating area is one that is on private lands abutting the premises. I know that. I can read. An outdoor seating area in relation to a licensed premises is defined in the definition. I do not need to be told what the definition is; I have read it. It is defined in the definition. I have no problem with the definition, unlike some Deputies. I also have no problem with the fact that they have problem with it. My problem is with section 6 which reads, "For the avoidance of doubt, an outdoor seating area on private land is a public place for the purposes of the Criminal Justice (Public Order) Act 1994".

Is that meant to be a reference to an outdoor seating area "in relation to a licensed premises"? Is it confined to an outdoor seating area "in relation to a licensed premises" or is it any "outdoor seating area on private land"?

I do not think that is what is intended but that is what the Bill does and it hugely increases the scope of the Criminal Justice (Public Order) Act 1994. If it is the Minister of State's intention to do that, he should say so and get the support of the House to vastly increase the scope of that Act. If it is not his intention to vastly increase the scope of the Criminal Justice (Public Order) Act 1994 and he merely seeks to increase its scope to outdoor seating areas "in relation to a licensed premises", he should clarify the position so that the law does not do that which he did not intend it to do and that this House did not intend it to do. It is one or the other so which is it? Is the Criminal Justice (Public Order) Act 1994 to apply to any outdoor seating area, which is very broad in scope, or is it just outdoor seating areas "in relation to a licensed premises"? That is defined as abutting a licensed premises, etc., as the Minister of State pointed out. Which is it?

We are trying to get clarification and avoid confusion. One concern I have is the matter of people who are leasing a premises. By their nature, many restaurants and public houses are leased, and those people are seeking assurance and clarity on the licensing and implementation of the new regulations. The one bit of news I have for the Minister of State, not willing to burst the bubble on the outdoor dining scene, is that it is supposed to rain on Friday. While the sun might be shining down now, we really have to come back to the issue of indoor dining and when that will be allowed.

I have heard speakers raising many different issues this evening. I heard one Deputy in particular looking for more regulation of indoor dining at a time when we are not allowing it. That bamboozled me. It was confusing beyond belief to hear a Deputy seek to have further regulations imposed on people whose businesses have been shut for nearly a year and a half. Where that Deputy was getting that brainwave from I do not know but this is not a time to be putting further regulations on an industry and a practice that are not allowed at present.

As late as in the last hour, I have received phone calls, emails and text messages from people who are watching closely what is going on this evening. They have heard what Members said and they have seen politicians in this House speak out of both sides of their mouths, in that we have Government Deputies who are saying one thing on national radio, and on local radio in their constituencies, and saying another thing to reporters but when they come in here, it is like "The Silence of the Lambs". They are keeping their mouths shut, rowing in behind what the Government is saying and doing and blindly and loyally supporting the Government. They are not raising one question. That is why there is no one here to take Government slots when it comes to issues such as this. The reason is that Government Deputies do not want to say anything. They are speaking on the radio and everywhere else but not at all where it counts, namely, inside in this House. When it comes to voting, they will loyally and blindly support the Government. That is something I find hard to understand because they tell a different story to the individual business owners and representative organisations such as the Vintners Federation of Ireland, the Restaurants Association of Ireland or the small business owners who are so desperately affected and impacted by the decision that has been made in the past 24 hours. These people are really suffering.

The Rural Independent Group has been vocal and forthright in our statements about this issue. We had a press conference today on the plinth and Deputy Mattie McGrath made it clear where we all stand. When we are saying something we say it outside and inside this House. How can politicians be true to themselves when they support the decisions that have been made at the last minute in recent days? At the same time they think they can tell a different story to people in their constituencies, whether it is the workers or the business owners.

In the great town of Killarney, or any of the places I represent, such as Sneem, Waterville, Killorglin and Listowel, the people are desperately impacted in a negative way and they are doing their best. The Leas-Cheann Comhairle should have seen the effort that has been made in putting up outdoor facilities, including canopies, tables and chairs. These business owners are struggling and working so hard. I saw staff painting and decorating and putting together these chairs and tables. They were getting ready to open but it was all in the hope that this would be for a short time and then they would be able to move indoors on 5 July. The next thing was the rug was pulled from underneath them in such a cruel and hurried fashion.

Then there is the uncertainty of trying to tell people there will be a two-tier society in a couple of weeks' time if they get their act together. It will be a case of whether someone has the vaccine or not. I cannot see how anybody in the Government thinks they can ask a proprietor of a public house, restaurant or café to have somebody on guard at the door checking the people coming in to see who is vaccinated.

I am sorry I have to interrupt the Deputy but the time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 29 June: "That in respect of each of the sections undisposed of, the section is hereby agreed to in committee; the Preamble and the Title are hereby agreed to in committee, the Bill is accordingly reported to the House without amendment, Fourth Stage is hereby completed, and the Bill is hereby passed."

Question put:
The Dáil divided: Tá, 114; Níl, 6; Staon, 0.

  • Berry, Cathal.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Brophy, Colm.
  • Browne, James.
  • Browne, Martin.
  • Bruton, Richard.
  • Buckley, Pat.
  • Burke, Colm.
  • Burke, Peter.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Chambers, Jack.
  • Clarke, Sorca.
  • Collins, Joan.
  • Collins, Niall.
  • Connolly, Catherine.
  • Conway-Walsh, Rose.
  • Costello, Patrick.
  • Coveney, Simon.
  • Cowen, Barry.
  • Cronin, Réada.
  • Crowe, Cathal.
  • Crowe, Seán.
  • Cullinane, David.
  • Devlin, Cormac.
  • Dillon, Alan.
  • Donnelly, Paul.
  • Donnelly, Stephen.
  • Donohoe, Paschal.
  • Duffy, Francis Noel.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Farrell, Mairéad.
  • Feighan, Frankie.
  • Flaherty, Joe.
  • Fleming, Sean.
  • Foley, Norma.
  • Funchion, Kathleen.
  • Gould, Thomas.
  • Griffin, Brendan.
  • Guirke, Johnny.
  • Harris, Simon.
  • Haughey, Seán.
  • Higgins, Emer.
  • Hourigan, Neasa.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kenny, Martin.
  • Kerrane, Claire.
  • Lahart, John.
  • Lawless, James.
  • Leddin, Brian.
  • Madigan, Josepha.
  • Martin, Catherine.
  • Matthews, Steven.
  • McAuliffe, Paul.
  • McConalogue, Charlie.
  • McGrath, Michael.
  • McHugh, Joe.
  • Mitchell, Denise.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Munster, Imelda.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Mythen, Johnny.
  • Naughton, Hildegarde.
  • Noonan, Malcolm.
  • O'Brien, Darragh.
  • O'Brien, Joe.
  • O'Callaghan, Cian.
  • O'Callaghan, Jim.
  • O'Connor, James.
  • O'Dea, Willie.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Gorman, Roderic.
  • O'Rourke, Darren.
  • O'Sullivan, Christopher.
  • O'Sullivan, Pádraig.
  • Ó Broin, Eoin.
  • Ó Cathasaigh, Marc.
  • Ó Cuív, Éamon.
  • Ó Murchú, Ruairí.
  • Ó Snodaigh, Aengus.
  • Phelan, John Paul.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Rabbitte, Anne.
  • Richmond, Neale.
  • Ring, Michael.
  • Ryan, Eamon.
  • Ryan, Patricia.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Smith, Duncan.
  • Smyth, Niamh.
  • Smyth, Ossian.
  • Stanley, Brian.
  • Troy, Robert.
  • Tully, Pauline.
  • Varadkar, Leo.
  • Ward, Mark.
  • Whitmore, Jennifer.
  • Wynne, Violet-Anne.

Níl

  • Collins, Michael.
  • Healy-Rae, Danny.
  • Healy-Rae, Michael.
  • McGrath, Mattie.
  • McNamara, Michael.
  • O'Donoghue, Richard.

Staon

Tellers: Tá, Deputies Brendan Griffin and Jack Chambers; Níl, Deputies Mattie McGrath and Michael McNamara.
Question declared carried.
Deputy Holly Cairns did not vote in this division due to an agreed pairing arrangement with Minister Helen McEntee for the duration of the Minister’s maternity leave.