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Seanad Éireann debate -
Tuesday, 27 May 1986

Vol. 113 No. 1

Courts Bill, 1984: Committee Stage (Resumed).

Debate resumed on amendment No. 6:
In page 7, before section 5, to insert a new section as follows:—
"5.—Section 25 (1) of the Intoxicating Liquor Act, 1927, is hereby amended by the insertion of "if the Court in its discretion so thinks proper" after "conviction" in the third line and the subsection, as so amended, is set out in the Table to this section.
25.—(1) Whenever the holder of any licence for the sale of intoxicating liquor by retail is convicted of an offence to which this part of this Act applies the conviction if the Court in its discretion so thinks proper shall, if the person so convicted is the holder of one such licence only, be recorded on such licence or, if such person is the holder of two or more such licences in respect of the same premises, be recorded on all such licences or if such person is the holder of two or more such licences which do not all relate to the same premises, be recorded on such one or more of those licences as relate to the premises in respect of which the offence was committed."
—(Senator Howard.)

On reflecting on what took place during the discussion here I want to put on record the consistency of the people who spoke here in supporting the concept in the amendment we are sponsoring here. Perhaps you will permit me to make this observation that it certainly leads to a point that is of interest to all of us in this House because we have seen where the capacity and the value of Seanad Éireann have been unfairly attacked over the last weekend. We have been described as a costly and worthless institution and told that our deliberations have little or no impact on legislation. I believe that the attitude of the Members this evening in supporting the amendment we have put forward gives all of us an opportunity to vindicate the integrity of this House, and to discharge, as the Constitution intended us to discharge, our duties and responsibility as legislators.

This amendment that we are proposing would remove from our laws a provision that confiscates the legitimate livelihood of individuals and in many cases the legitimate livelihood of families. As I say, I am very satisfied with the consistency and the support that all the speakers and all the Members of this House have given to what is intended in this amendment. I cannot but feel convinced that the consistency and the validity of the arguments being put forward here will find a willing response from the Minister. When the Minister replied earlier to the discussion he gave us a brief history in relation to the question of endorsements in legislation over the years. I do not want to say that I believe that the presentation was biased. That would be unfair to me but, because of the fact that it was so brief, it could certainly be interpreted by some people in that light. Therefore, I want to put the record in relation to this matter as straight as I can. I can assure the House I will not unduly delay on this matter.

We are not suggesting in our amendment that endorsements should be totally removed. We believe, and we are satisfied, that the penalty of endorsements should remain but that the courts should have discretion depending on the triviality or the seriousness of the offence and the circumstances related to it as to whether to impose that sanction. My assessment of the history of the endorsements issue goes as follows: the licensing code that we deal with stretches back, together with the Acts that comprise it, to 1833.

We have had many Acts since then and the Minister has referred to two of them here. It was only in the 1960 Act that total discretion was removed as far as the courts were concerned in relation to endorsements. In every other Act since 1833 to 1960 there was provision for appeal to a higher court. In 1924 that discretion was confined to the High Court only. Three years later, in 1927, there was a further Act where the then Minister for Justice, the late Kevin O'Higgins — as a matter of interest, in his last legislative measure to be put through the Oireachtas — said that the hardship and the cost of a publican going to the High Court to remedy his situation was almost the equivalent of the value of his business in these days and amounted to confiscation, and it was on that occasion and in that speech that the word confiscation was first mentioned.

There is something of interest in that discussion. The then Minister for Justice met strenuous opposition from within his own party and outside in relation to this and some other changes he was proposing to implement. They were largely arising from the hardships that had been caused by the effect of some of the Act of 1924: he was back within three years to rectify it.

I want to quote from the Dáil Report of 16.2.1927, Column 541 where he said that there were certain particulars in the Bill on which he had to look for support to the other parties. He referred to the Farmers party, to the Labour Party and particularly the Independents and Deputy Sir James Craig and the people he represented. The Minister for Justice of that day got that support and it was crucial to him because in one division one of the measures he was proposing to bring in to improve the situation where a publican was concerned was carried by one vote — 43 to 42.

It was in 1960 that full discretion was removed from the courts. I understood the Minister to say that this happened as a result of experiences from 1943 to 1960. I have read the records and discussions of the time and my assessment of it is that the circumstances in which that change was made had more to do with certain proposals that the Minister, the late Deputy Oscar Traynor was making in that Bill. The controversial decisions, in which the Minister of today may have a certain interest, included the extension of Sunday hours, the elimination of the concept of the bona fide traveller, the provision of liquor licences for dancehalls, the provision of drinking facilities with full meals and the inspection of clubs.

The holy Joes of the day were so outraged with the liberalisation of the law that they looked for strong safeguards. It was in order to respond to these fears that the automatic endorsement procedure was introduced, as can be easily seen from the Dáil records. I have these records here in case there is any question about it but I do not want to delay the House by quoting them. To bring about that situation, two promises were made, that all endorsements would be wiped clean at that point and that everybody started off with a clean sheet but that secondly, and most important of all, that if any hardship emerged as a result of the decisions that were taken in 1960, the Minister pledged himself to come back in a short time and rectify these.

That short time has long expired. We had a commitment by his predecessor in 1960 that should hardships develop as a result of the decisions that were made to satisfy the outrage that certain people felt at the greater availability of drink remedial action would be taken. That assurance was given and it was on the strength of that assurance, I am sure, that the measure was accepted — that if hardship emerged he would examine it and come back and set the record straight.

I will give one example of what best illustrates his commitment — I was reminded of it by Senator Durcan when he said that instead of endorsements the Garda or the courts might have the power to close down a publican for a week, ten days or whatever the term might be. That suggestion was also made during the discussion of that Act. On 31 March, 1960 at column 1521 Deputy Micheál O Móráin who was Minister for Lands and was deputising for the Minister for Justice on that day said he could not accept that because it would give rise to constitutional difficulty. He continued:

I do not know that it would be open to this House to legislate for the purpose of depriving a man of his legitimate livelihood.

If that was the response and a reflection of the thinking of the Minister and the Government and the Parliament of the day, that even to close a person for one week amounted to the confiscation of their livelihood, how can it be said that they would so willingly bring in a measure providing that not alone would a person's livelihood be forfeited for one week but that it would be confiscated for all time? Therefore, I question the interpretation that it was brought in to deal with the circumstances that arose in the period 1943 to 1960. All the evidence available to me suggests that it was brought in, first of all, to placate the people who were worried but the commitment was given that if hardship arose from its implementation it would be rectified. I want to say to the Minister that hardship has arisen from that and what was clearly intended to be only a temporary measure in 1960 is today, 26 years later, still with us and causing havoc to the peace of mind and to the business of people I represent in this House.

I want to refer to the most recent Act, the Intoxicating Liquor Act, 1983. I will recall the circumstances for the Minister. The National Concert Hall lost its liquor licence; I will not go into the circumstances. It would seem that because the National Concert Hall, being first of all the establishment that it is, but particularly perhaps because it caters for a certain stratum of our people, the Government felt obliged because the licence had been lost, to bring in a special Act to give a special type of licence to the National Concert Hall. It is a privileged type of licence in which there is no provision, irrespective of the offence, for either endorsement or forfeiture.

The Minister of the day made it quite clear that in contrived circumstances the National Concert Hall can legitimately sell drink 24 hours a day and specifically conceded that it could be sold there on Christmas Day and on Good Friday. There is no provision whatsoever for either forfeiture or endorsement. Therefore, I have to ask the Minister is it reasonable or is it just that we are prepared to rush in one piece of legislation to resolve the difficulties of the National Concert Hall when they lose their liquor licence and we refuse to do it when families lose their livelihood? There is an inconsistency there which there is an obligation on the Minister to rectify.

Is the amendment withdrawn?

I think in reply to what Senator Howard has said I should repeat what I said earlier. I do not intend to go into the history of the various pieces of legislation that Senator Howard has recalled. I do not intend to split hairs with him as to whether various presentations or remarks were biased because we could entertain ourselves here for the whole evening on that matter. I want to repeat something I said earlier in discussion on this amendment. Whatever view we might take of the history of the licensing laws from 1943 to 1960 or from 1960 to 1986 there is, in my view, little doubt but that an event of June 1985, whatever about the letter of the law, brought about a change in relation to some aspects of the spirit of the law. That might be a malapropism in present circumstances, but it is the case. In view of that there are grounds for considering, if not the detail of this amendment, then at least the intent, I would suggest to the House that this is a matter to which we might return at Report Stage, not necessarily to examine again the specific amendment that is put forward here but to look at the possibility of and the justification for making a move in that general direction.

Acting Chairman

Is the amendment withdrawn.

In view of the Minister's assurance that he will examine the matter between now and Report Stage, I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.
Section 5 agreed to.
Sections 5 to 7 inclusive, agreed to.
First and Second Schedules agreed to.
Title agreed to.
Bill reported without amendment.

I propose that we take Report Stage next week in view of the Minister's commitment, to give him an opportunity to consider the case made. I suggest Wednesday of next week as the earliest date.

Report Stage ordered for Wednesday, 4 June 1986.