Dáil Éireann debate -
Wednesday, 29 May 2024

Vol. 1055 No. 1

Extension of Civil Law (Miscellaneous Provisions) Act 2021: Motion

Minister of State at the Department of Justice (Deputy James Browne)

I move:

That Dáil Éireann resolves that the period of operation of sections 1 to 7 and 9 of the Civil Law (Miscellaneous Provisions) Act 2021 (No. 14 of 2021) be extended for a further period of 6 months, beginning on the 1st day of June, 2024 and ending on the 30th day of November, 2024.

I am here to introduce a resolution on behalf of the Minister for Justice, Deputy McEntee, to extend the sunset clause in the Civil Law (Miscellaneous Provisions) Act 2021. The extension of this Act will allow the hospitality sector to continue to provide the sale or supply of intoxicating liquor in outdoor seating areas.

Deputies will be aware the Act was introduced in July 2021. The provisions of the 2021 Act were in place until 30 November 2021 and have been extended five times by resolutions of each House of the Oireachtas, in November 2021, May 2022, November 2022, May 2023 and November 2023. Section 9(4) of the Act provides that the relevant provisions of the Act can be extended for up to six months at a time if a resolution approving its continuation has been passed by both Houses of the Oireachtas. On 21 May 2024, the Government agreed the extension of the Act for a further six months. The Government took this decision in recognition of, and response to, the ongoing demand for such facilities, which allow businesses to operate with clarity and certainty in respect of the law on outdoor dining services.

I am now, therefore, on behalf of the Minister, bringing forward a proposal that the Act continue in operation until 30 November 2024. The measures provided for in the 2021 Act were put in place to facilitate licensed premises to provide outdoor seating in the context of the Covid-19 pandemic. These measures also allow An Garda Síochána to regulate and enforce these provisions in the course of its ordinary responsibilities in enforcing the licensing laws. Providing An Garda Síochána with the power to direct licenceholders to comply with this legislation as it relates to outdoor seating areas facilitates the enforcement of the Act and is an important safeguard. I think the House will agree it is essential that An Garda Síochána continue to have clarity on its powers for public order purposes and, equally, that licensed premises owners understand their obligations to maintain order in outside public areas where they are selling alcohol.

Although Covid-19 is now less prevalent, the Government considers it to be in the public interest to provide for the sale or supply of intoxicating liquor in certain circumstances in seating areas located outside licensed premises. This allows the licensees of such premises to conduct business and operate in these outdoor seating areas. It is important to extend this operational period for a further six months to give clarity to licensed premises, local authorities and An Garda Síochána.

The increased availability and popularity of outdoor dining and socialising has been welcomed by many. Its innovation is reflective of the demand for more variety and choice in the ways in which we socialise and in the types of venues and social spaces that are available.

On 30 April, the Minister for Housing, Local Government and Heritage, Deputy Darragh O’Brien, waived street furniture licence fees for tables and chairs associated with outdoor dining for the remainder of 2024. This is part of the measures the Government is taking to support businesses. In addition, there is no fee for awnings, canopies and heaters associated with outdoor dining.

This important extension of the 2021 Act also clarifies the position of licenceholders who wish to sell and serve alcohol adjacent to a licensed premises in an area approved by the relevant local authority. At present, these premises have no remedy to amend their licence to include that area under existing legislation. Deputies will be aware it is the intention of the Minister, Deputy McEntee, to bring to Government a Bill that will contain heads to provide for a number of priority matters, including addressing provisions for outdoor seating, as part of the licensing process. In addition, the 2024 Bill will introduce provisions that will regularise the position with respect to outdoor seating areas on a permanent basis. The Department of Justice and the Office of the Attorney General are currently finalising the terms of those provisions. However, it will not be possible to bring the provisions into operation prior to 31 May 2024. Accordingly, it is proposed to extend the operation of the Act for a further period of six months, that is, until 30 November 2024.

The Government considers that it is important to extend the outdoor dining provisions provided for by the Civil Law (Miscellaneous Provisions) Act 2021 to allow for ongoing certainty for all those operating in the licensing trade, their patrons, local authorities and An Garda Síochána. It will be crucial that the needs of those who may be impacted by the harms caused by alcohol abuse or over-consumption, including members of An Garda Síochána and local residents, are taken into account when decisions are being taken regarding licensing.

In summary, we are here to deal with one element of our current licensing system that needs our attention, namely, the extension of the outdoor seating provisions which have proven to be popular with the industry, local businesses and patrons. I commend the motion to the House.

Deputy Pauline Tully

When the Act of 2021 was first introduced and areas were pedestrianised, there was a lack of consultation with disabled people and disabled persons' organisations. Some areas were pedestrianised and disabled parking spaces were moved without prior consultation, often to areas that were not very suitable. Outdoor areas for dining and the consumption of alcohol were put in place and while that was welcome and necessary at the time, people with mobility issues or visual impairments were not considered and their rights were affected. This should be considered on an ongoing basis. If something like this is to happen, everybody's rights should be taken into account.

Sinn Féin supports the measures in the motion because, broadly speaking, they have worked well. The ability of businesses to diversify through serving drinks outdoors has proved important and while it has not saved the pub and hospitality sector more generally, overall it has been positive.

We have some concerns, the first of which relates to the legal certainty required around these measures. The Government has confirmed, and the Minister of State echoed this in his speech, that provisions related to outdoor seating will form part of the forthcoming intoxicating liquor Bill 2024. I will comment on the splitting of the Sale of Alcohol Bill 2022, a large Bill that has already undergone pre-legislative scrutiny. The Bill must strike a balance between the economic contribution made by the night-time economy and the hospitality sector more generally versus the health, workers' rights and public safety concerns many have. The outdoor seating provisions being paired with opening hours, annual late bar and nightclub permits and other measures makes sense and I hope we will see more details on this soon. I assume they will be similar to what was presented during pre-legislative scrutiny but I ask the Minister of State to let us know more about what the Bill contains and whether the provisions on outdoor seating will be different from what we are discussing.

I wish to discuss in further detail the concerns I mentioned, beginning with the business supports for the sector which were a feature during the pandemic. The outrageous costs we now see, which businesses and workers struggle with, have necessitated further supports but more can be done. We have called for the Government to engage with industry to design a bespoke but time-limited support for those sectors most impacted by public policy interventions and other additional costs.

The hospitality sector is self-evidently very much one of these sectors. The reopening of the increased cost-of-business grant for applications is welcome but we need clarity and swift delivery. It is not surprising businesses were confused and that less than 50% of qualifying businesses had applied for the grant before it closed on 30 April. This led to the scheme reopening. My colleague an Teachta Louise O'Reilly has received data that demonstrates many businesses have either not had their applications processed or received their money. Nationally, only 17% of businesses have had their applications approved to date and only 10.7% have had grant money paid to them.

I also note the hospitality sector, along with retail, made up 40% of the total number of insolvencies in quarter 1 of 2024. Jobs are disappearing, especially in rural areas such as Cavan and Monaghan. This badly affects workers who have already seen so many issues within the hospitality sector. Their hours are long, pay can be meagre and abuse and exploitation run rife. We need to see better protections accompany any expansion of capacity for the sector.

Similarly, the public order and public health aspects of the hospitality sector need to be properly evaluated before any changes are made to the provisions of the Sale of Alcohol Bill. It is telling that the Minister for Health sounded the alarm about the Bill, writing to the Minister for Justice to ask what risk assessments on its provisions had been completed. My colleague an Teachta Thomas Gould, in his capacity as Sinn Féin's spokesperson for recovery and addiction, previously wrote to the Minister for Justice asking for the same assessments to be done. This, presumably, includes the splitting of the Bill and no measures should be introduced without an assessment of the implications for gardaí and healthcare staff as well as local communities.

Sinn Féin does not oppose this Bill, for the aforementioned reasons. However, we would welcome a debate on the permanent legislation. I ask for some transparency around what assessments will be done on the effects of that legislation.

Deputy Brendan Howlin

As the Minister of State told the House, this is the latest in a series of motions. One has passed through this House every six months since 2021. The purpose of the motion is not controversial - to allow for a continuation of the current outdoor seating and drinking regime. Some such regime of some order would and should be an ordinary part of our ordinary regulated life.

Until the Covid pandemic, outdoor drinking raised issues both under licensing legislation and planning law and the practice was that it was not widespread. These rules were relaxed in response to the Covid-19 pandemic in what was stated to be a temporary and emergency response. Specifically, according to the Civil Law (Miscellaneous Provisions) Act 2021, its purpose was to:

make provision, on a temporary basis, for the sale or supply of intoxicating liquor in certain circumstances in seating areas located outside licensed premises in order to allow, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of the disease known as Covid-19, the businesses of licensees of such premises to operate in a manner that mitigates the spread of that disease...

According to the recitals set out in that Act, which is the base Act it is now proposed to extend

the emergency that has arisen and continues is of such a characteristic that for compelling reasons of public interest and for the common good, to assist and support the State's effort to promote and maintain the normal functioning of society, to protect the gradual reopening of society and, to the greatest extent possible, to avoid imposition or re-imposition of restrictions thereon, it is necessary, in order to allow businesses of licensees premises to operate in a manner that mitigates the spread of the disease...

The original exemption ended on 30 November 2021 and has been extended for six months by resolution of both Houses of the Oireachtas ever since. With each resolution we debate, the Minister and these Houses are moving further and further away from reality. We cannot pretend that the basis of allowing this to happen is as I cited from the Bill. It is a fiction and to put it politely to the Minister of State, the claim that there is a public need for the continuation of these measures for outdoor drinking in order to mitigate the spread of Covid-19 is one which, if it were challenged in the courts, is not likely to stand, and we know how litigious this area of law is.

The legislation has clearly been abused by being extended, relying on public health as a justification of something we should be doing by way of normal law. In recent times, every time we have extended this resolution, we have had a promise - as we have again - that it will be dealt with by way of normal law. We need to get on with that. This long suspension of the ordinary rules has established and perpetuated certain problems, some of them serious. Some pubs in residential areas have fronts and rears that are not suitable for outdoor drinking. Some would never be given planning permission by the local authority if they were to go through the normal planning process. We need to deal with these issues as a matter of normal law and not say we have an Irish solution to an Irish question.

We have an emergency piece of legislation that works grand and we will just continue it until somebody calls foul.

As matters stand, if this resolution is passed and tested, it would be no surprise to anybody if the resolution fell. That would put the operators and everybody else in an invidious position. Even if it is a stand-alone measure, we need proper regulation of these things. These are matters that we talk about all the time.

I will not oppose or vote against this extension but we all know that having something anchored on the pandemic as a measure to mitigate the spread of a disease that is not regarded as a serious health risk now is not the basis by which we should be acting as legislators in this House. I do not want to be critical of the Minister of State but I hope in his concluding remarks he would address this issue and say this is the last time we are going to be doing this. If we do not have comprehensive legislation under the Intoxicating Liquor Act, then I hope some proper amending legislation as a stand-alone measure will be presented to us.

Deputy Catherine Murphy

I would like to follow on on that theme. Every six months we deal with this motion and have been told today that the initiative is part of business support. I feel sorry for the Minister of State. He is standing up here and trying to say something different but it is pretty difficult to do that. We know this is a temporary provision and none of us will oppose it, but neither do we find it satisfactory. We can pick holes in how the law is functioning.

In the closing remarks on the last debate on a similar motion, we were told it is challenging to draft permanent legislation and while a piece could be done on this alone, the Government wanted to do a bit more on alcohol legislation. Deputy Howlin referred to stand-alone legislation. We were told that could not be done in time. We were then told that the Minister for Justice, Deputy McEntee, expects to have that legislation in February next year. We were told that last November. The Minister of State knows that we cannot keep doing this.

We also have to consider a timeline. We could run into a serious problem if, for example, we did not have this legislation and there was a general election followed by a protracted period to form a Government. We would see a significant gap not covered by law. I do not find that acceptable.

I can keep going back over the same points I have made repeatedly. I refer to planning issues. Every time I have spoken about this, I have said that this works perfectly well in some locations but in others it does not. For example, because this measure was of an emergency nature, there was not much thought for people with disabilities. I have walked around areas with people with disabilities to get a sense of what they see and encounter. Things like sandwich boards and obstructions are not just an inconvenience; people can do serious damage to themselves. I have seen a person who has done awful damage to their legs due to a visual impairment and constantly bumping into things. We are either serious about this or not. We have made good progress in planning law relating to people with disabilities, but we then put significant impediments in their way without considering whether a location is appropriate or appropriate consideration has been given to people who are confronted with an obstacle.

We spend a lot of money on shopfronts. Local authorities give grants to have nice streetscapes and shopfronts, and we then obscure them, in some locations very inappropriately. We start to wonder whether that is counterproductive. Advertisers are taking commercial advantage of some of these structures, some of which can be quite ugly. I do not think that would be permitted if people had to get planning permission and there was a regime around what people can and cannot do.

I do not think I need to tell the Minister of State that this is not satisfactory. It is more than unsatisfactory. If we do not have this legislation in place, I ask him to give us something more permanent than motions.

Deputy Seán Canney

I welcome the opportunity to speak on this proposal. I too have a concern that we are pushing the can down the road for another six months. That is of very little use to people who have invested in outdoor facilities and amenities. The hospitality sector and publicans who have made that investment are going from six-month to six-month periods, wondering whether they will have to take things down again or what is going to happen. It is important that we protect business by putting something more permanent in place in terms of outdoor dining and drinking.

It is important to refer to people with disabilities. As a member of the disability matters committee, I would like to draw the attention of the Minister of State to the fact that some of the outdoor facilities that have been put in place have not taken cognisance of the discommode they have done to people with a disability, especially on footpaths. It is important that that is examined. While we are helping the hospitality sector, pub trade and all of that, which is great and a legacy of Covid, it is important that we make sure people with disabilities are taken into account when we make these decisions.

I hear from people in Galway East that the pub trade is changing and it is harder to make money at it. Any opportunity to try to change how they do business is a welcome proposition. The fact that people can have a seat outside to have a drink on a nice evening or whatever is great, looks good and creates an atmosphere in a local town or village. That is to be commended. However, we need to make that a permanent part of the trade in order that publicans or people serving food know this is the way they can do things going forward. At the moment it is not like that.

We extend this every six months. If we extend it for six months now, we might have an election before or after the six months are up. Where does all this legislation go in the meantime? It is important that we have this on a permanent footing in our legislation. When the legislation is introduced, we do not need to add more costs to publicans by requiring them to do a lot of paperwork and all of that kind of thing. The ways things were done during Covid were simple and quick and allowed people to provide protected socialisation. We have to bear in mind that this is the basis for this legislation. We need to make it permanent because it was a good thing to do and we demonstrated that we can do it without choking the system with paperwork. That is important.

Where is the legislation to make this permanent? When will it come before the Dáil? How will we deal with that in the very short timeframe we have? It is important that we get that right. It is important that we extend this, but the Government has added a number of iterations of this particular legislation on a six-month basis, which is not acceptable. I agree with what we are doing, but let us get it permanently right.

Minister of State at the Department of Justice (Deputy James Browne)

I thank Deputies Howlin, Murphy and Canney for their contributions. A number of similar themes were raised. Reference was made to obstructions faced by people with disabilities or visual impairments and the elderly.

My own sister is in a wheelchair and I fully agree with everything that Deputies have said. As it is necessary to get a street furniture licence, I would say to the local authorities that it is their duty to ensure that where they are issuing these licences, the footpaths remain clear of obstructions. There should also be enforcement actions against those who have these licences to make sure they stick to the very clear definitions of the areas provided. Access by people with disabilities is essential. Wheelchair spaces must be respected and it is up to the local authorities, in granting these licences, to ensure that is the case.

I acknowledge this is another repetition of the six month extension. This has been ongoing, again and again. If I was in a court, I might be saying to the judge that I have my instructions. The Minister, Deputy McEntee, is determined to get this onto a permanent footing so that we do not go through this again. Clearly there is a risk if there is no Dáil sitting at a particular time that it could give rise to very serious situations for certain businesses. We all agree that this needs to be passed but the constant renewal of it is not the way to do the business on this. It needs to be put on permanent footing.

Deputy Brendan Howlin

We are on very shaky ground now.

Deputy James Browne

I will certainly bring the Deputies' comments to the attention of the Minister.

Question put and agreed to.

Cuireadh an Dáil ar fionraí ar 4.01 p.m. agus cuireadh tús leis arís ar 4.30 p.m.

Sitting suspended at 4.01 p.m. and resumed at 4.30 p.m.