I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, to the House.
Intoxicating Liquor Bill 2004: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
I thank the House for agreeing to deal with this short Intoxicating Liquor Bill 2004 as an urgent matter. It is fair to say it deals with an issue of concern to all sides of the political spectrum. I trust that this consensus will contribute towards speedy enactment of the proposals.
The primary purpose of this short Bill is to amend the Intoxicating Liquor Act 1988 in order to provide a clear statutory basis for the holding of alcohol-free events and activities for young persons under the age of 18 years in licensed premises such as a nightclub or a part of a premises, such as a function room in a hotel or the main hall of a registered club, at a time when intoxicating liquor is not being sold, supplied or consumed and when physical access to intoxicating liquor is securely prevented.
The position at present is that section 34 of the Intoxicating Liquor Act 1988, as substituted by section 14 of the Intoxicating Liquor Act 2003, generally prohibits persons under the age of 18 years from the bar of licensed premises after 9 p.m. The House will recall that this restriction in the 2003 Act constitutes part of the Government's response to concerns expressed both by the Commission on Liquor Licensing and the strategic task force on alcohol in regard to alcohol-related harm among young people. Until that Bill was passed, it was lawful for a 16 or 17 year old to spend all night in a pub up to closing time as long as that 16 or 17 year old did not consume intoxicating liquor on the premises. A 19 year old, therefore, could have a 17 year old girlfriend, or vice versa, on a premises and the only offence that would be committed in those circumstances would be if the younger partner in that duo consumed intoxicating liquor.
A number of judicial decisions required members of the Garda Síochána, when they went into premises in those circumstances, to prove that the drinks in front of the drinkers were alcoholic. With the consumption of mixers, vodkas and orange, Bacardi Breezers and so on, it became necessary for the gardaí to first link individuals sitting at a table who were under age with a particular drink on the table and, second, show that the drink was alcoholic. At that time it was unlawful for members of the Garda Síochána to be on a licensed premises for the purposes of carrying out their duties unless they were in uniform. That meant that any public house which had a lax approach, and there were very few of them I am glad to say, to serving under age people or determining who was and was not under age had no effective policing of any kind and the law had become wholly unenforceable.
On 27 May 2003, I obtained Government permission for the early drafting of the Intoxicating Liquor Bill 2003 and I published the general scheme of the Bill on the same day. This was followed by a consultation phase during which I discussed the proposals set out in the general scheme with the licensed trade bodies and with the Joint Committee on Justice, Equality, Defence and Women's Rights. The proposals in the general scheme were subsequently adapted to take account of certain concerns that had been highlighted and the Bill was presented in this House on 17 June. I recall that there was a general welcome here for the proposals set out in that Bill, although some Members felt at the time that it did not go far enough.
As regards the restrictions on those under the age of 18 in bars, I introduced a proposal to change the proposed 8 p.m. watershed to 9 p.m, having heard the views of Members in this House. Another issue raised here was the possible impact of the restrictions on the holding of private functions such as weddings and birthday and retirement parties in licensed premises. I also recognised the validity of those concerns and subsequently introduced an amendment providing that it shall not be unlawful for those under the age of 18 to be present in a bar on the occasion of a private function at which a substantial meal is served to persons attending the function.
Had potential difficulties with the holding of alcohol-free events in licensed premises been highlighted in the same way, I would have had no hesitation in bringing forward a suitable amendment to exclude the possibility that there would be a threat to alcohol-free events being held in clubs, pubs or nightclub premises. It is important to state that it was not the intention of the Oireachtas, when enacting the 2003 Act, to restrict in any way the activities of voluntary bodies and their dedicated and hard-working volunteers, including the No Name Club movement and people such as Eddie Kerr who have played such a part in those, or that alcohol-free alternative events for young people should not be available. On the contrary, I recall Members referring to the need to encourage young people to engage in leisure activities not involving the consumption of alcohol. I had the pleasure recently of attending the launch in Croke Park of the No Name Club's promotional video and I express and record my admiration of the work being done by that organisation, and similar bodies, throughout the country.
Shortly after the entry into force of section 14 of the 2003 Act at the end of September 2003, concerns were expressed by certain youth organisations that the restrictions provided for in section 14, while generally welcome and justified in terms of combating alcohol-related harm among young persons, could have the effect of interfering with the holding of alcohol-free events for persons under the age of 18 in premises licensed for the sale of alcohol. There is nothing to prevent such events being held in non-licensed premises such as school halls or community centres but I readily accept the point which has been made by the organisers of alcohol-free events that the holding of such events in the local sports club's premises or hotel function rooms increases their appeal, for obvious reasons, to young persons because of the comfortable surroundings, lighting, special effects, etc.
The same question arises in relation to sports activities, gymnastics or dancing classes that are taking place in the function room of a sports club after 9 p.m. if there is a bar at one end of the room which is shuttered. It was never my intention, and never the intention of anybody in this House and nobody ever suggested it at the time, that we were in danger of making illegal the presence, for example, of ten year old children at an Irish dancing class in the local GAA club because the function room had at one end of it a bar with the shutters down. We thought at that time that nobody in their right mind would have thought that was the effect of the definition of "bar" and the particular prohibition.
Arising from the concerns expressed about the possible negative impact of the 2003 Act on the holding of such events, legal advices on the operation of such events were obtained by the Department of Justice, Equality and Law Reform from one of the country's leading experts in licensing law. The conclusion the Department's counsel reached — a conclusion with which I fully agreed then and still agree — was that where licensed premises or a part of such premises are not being used for the sale or supply of intoxicating liquor and the bar counter is closed, such premises do not constitute a bar for the purposes of the 1988 Act. I made this information public on 4 November 2003 in the context of a reply to a series of parliamentary questions which related to the subject. The advice I received was that to have a judo class, an Irish dancing class or whatever in the function room of a GAA club when the bar at the other end of the room was locked with shutters was not unlawful.
More recently, the issue was again raised in the context of alcohol-free events planned to celebrate the release of junior certificate results. Members of the Garda Síochána were telling the organisers of such events that they could not hold them in any place, even if there was a shuttered bar in the area. I understand the Garda Commissioner consulted the Attorney General on that occasion who advised, while making clear that he has no function in relation to prosecutions but that he does have a function in regard to licensing law, that in his view the provisions in question did not prohibit those under the age of I8 from attending alcohol-free functions in a portion of a premises in which the bar had been physically closed and was not being used for the sale or consumption of intoxicating liquor.
I am also aware, however, that the Director of Public Prosecutions who, since the Act of 1974 came into force, acts independently of Government and the Attorney General in regard to the prosecution of offences, has directed that prosecutions be taken in certain cases where alcohol-free events have been held on licensed premises in the circumstances I have just mentioned. As far as I am aware, no prosecution brought by the DPP has succeeded. Indeed, I have seen details of a case in County Galway where the District Court dismissed the charges on hearing that alcohol was not available from the bar and that the shutters were down. Media cases indicate that other prosecutions along the same lines were equally unsuccessful in other District Courts.
It is possible for people to have different interpretations of the law and subject to a final determination of the meaning of any statute by the Supreme Court, there will always be room for different views on what is actually the law. All I can say is that the expert counsel available to the Department of Justice, Equality and Law Reform, the Attorney General's office and a number of members of the District Court Bench have taken the view that an offence was not committed in the context of having such an event in a licensed premises.
The problem is that if the Director of Public Prosecutions, who is independent of the Attorney General, decides that he intends to prosecute or to take one view of the law, I then have to examine this and ask whether it is fair for me to hold out one view of the law and for the Director of Public Prosecutions to operate on another view of the law and to have people who are trying to organise these events effectively put in the position of being guinea pigs in a legal experiment where one person may or may not be proven to be correct. In those circumstances everybody in this House would, notwithstanding the fact that the Judiciary, so far, the Attorney General and expert counsel available to me takes one view, feel it is appropriate to remove doubt so that the people who want to use GAA halls for Irish dancing classes and so on do not find themselves prevented by one interpretation of the law from so doing. The situation that has developed is very unsatisfactory and needs to be resolved urgently. The definition of bar which is that set out in section 2 of the Intoxicating Liquor Act 1988 serves several different purposes in that Act. I intend to adopt a somewhat different approach, including new definitions of bar and bar counter in the codification Bill to which I will refer later. Bar has three colloquial meanings — the physical counter over which drink is sold; the room in which that activity takes place and the profession of which I am a member. It is unfortunate that a single definition embraces the physical counter and the room.
The third one knows a bit about the first two as well.
It can also have a marine connotation.
Yes. There are several things it could cover. Tommy Cooper used to tell a joke about walking down the street and running into a bar and saying "ugh" because it was an iron bar. There are many definitions of the term "bar" but we will stick to the more colloquial ones. In this context we will deal with the two meanings which most people would accept, namely, the object against which one leans with a pint in one's hand and the room in which that activity might take place.
I recognise that the lack of a clear provision in statute law which would permit the holding of alcohol-free events and activities in parts of licensed premises in stated circumstances has created uncertainty. This uncertainty has resulted in understandable caution on the part of organisers of such events and the licensees on whose premises they are held. Given the DPP's view, if one owns a pub in which there is a nightclub or disco or one is the committee chairman of a GAA or rugby club or whatever, and is asked to make a room in the premises available for young people to carry out an innocent activity, not involving the consumption of alcohol, and if one knows the consequence of being prosecuted, one will be told to steer clear of this activity while there is legal uncertainty around the issue. In theory, running such activities could result in forfeiture of one's licence. The purpose of this Bill is to remove such uncertainty. The importance of alcohol-free alternative activities for young people is appreciated here and beyond this House. It was recently highlighted again by the National Crime Council, the National Children's Advisory Council and the strategic task force on alcohol, in its second report launched on 22 September.
Section 1(1) provides that for the purposes of section 34 of the Intoxicating Liquor Act 1988, it shall not be unlawful for a licensee to allow a person under the age of 18 years to be on a licensed premises, or part of a licensed premises, at a time when intoxicating liquor is not being sold, supplied or consumed there and physical access to intoxicating liquor on those premises or part thereof is securely prevented. I accepted an amendment in the Dáil which replaced a reference in section 1(1) to the bar counter being closed with the reference to access to intoxicating liquor being securely prohibited. This revised formulation is based on an argument made by Deputies Costello and English that while the shutters are down in a hotel function room where an alcohol-free disco is being held for kids, one might want to be able to use the sinks, glasses and all the material needed for the service of minerals.
I was also conscious that, on one view, even if one closed that bar and brought a table into the function room, it would constitute a bar counter because the definition of "bar counter" is a counter across which drink of all kinds is sold. I was persuaded by the argument that it would greatly enhance the attractiveness of such premises at those kind of events if one could use the sinks, microwaves and paraphernalia behind the bar for the service of minerals, provided that alcohol was securely locked away on the occasion and the rolling up of the shutters was entirely innocent, with no question of alcohol being available. That will be the case in future if this Bill is passed. The revised formulation will permit the bar counter to remain open, provided that physical access to intoxicating liquor is prevented, for example, by removing all intoxicating liquor from that portion of the premises or making sure that it is completely locked up.
Section 1(2) provides that for the purposes of section 34A of the 1988 Act, which requires persons aged at least 18 years but under the age of 21 to have an age document with them in order to be in the bar of licensed premises after 9 p.m, it shall not be unlawful for the licensee to allow such a person who has not produced an age document to be on licensed premises in similar circumstances. It would be manifestly absurd to say that the trainer of the judo class should have in his possession a card showing his age just because there was a bar at the end of the function room of the local sports club.
Section 1(3) provides that for the purposes of sections 33 and 34 of the 1988 Act, it shall not be unlawful for a person under the age of 18 years to be on licensed premises in the circumstances mentioned in subsection (1). Section 1(4) provides that for the purposes of section 34A of the 1988 Act, it shall not be unlawful for a person aged at least 18 years but under the age of 21 who does not have an age document with him or her to be on the licensed premises in the circumstances mentioned in subsection (1).
Section 1(5) provides a defence for a person charged with an offence under the relevant sections of the 1988 Act. Section 1(6) makes it clear that nothing in this Bill shall prevent a person raising any point of law or other plea or objection which would be open to a person to raise in proceedings under the relevant provisions of the 1988 Act. Section 1(5) is designed to afford to people in a bar in the circumstances I mentioned in the past where the shutters were down, a defence in line with the advice I received from counsel, and the view of the Attorney General and the District Court at the time.
Section 1(7) was inserted by way of a Committee Stage amendment in the Dáil. It takes account of concerns expressed about the impact of the 9 p.m. watershed on family holidays. Last year as a result of our debate in this House we moved the watershed for young people in pubs from 8 p.m. to 9 p.m. It is open to a publican to exclude young people at any time from his or her premises. This is not mandatory in terms of establishing a minimum; it is merely where the criminal law prevents people from having children in pubs. It was suggested to me that the time limit be extended to 10 p.m, the daylight hours in the summer from May through September. This should deal with the arguments about the tourist season and people coming in from the beach that we heard in public discourse.
By the same token I must deal with the fact that not every tourist in Ireland is in a tourist area. This applies in Temple Bar, Finglas, Donnybrook and areas which are not considered tourism haunts generally and is an across-the-board rule. I cannot operate on the basis that everywhere is equivalent to a beach-side bar on the Atlantic coast on a glorious summer evening. I must also deal with the fact that it could be a rainy day in Temple Bar. Whether there should be children in the bar at nine or ten o'clock is an issue on which most people have some proper concerns.
This threshold is intended to operate as a time after which 16 and 17 year olds are effectively barred from pubs because they will not be able to produce their evidence of age cards and, therefore, cannot spend all night in pubs which was the situation and would remain so if we did not set a time by which they must leave the premises and go home. We must have certainty from the point of view of the licensees in this matter too. It is not a case of my advocating a nanny state. Some members of the Opposition suggested that the mandatory age cards should be given to 18 to 25 year olds or 18 to 23 olds, but I considered 18 to 21 to be the smallest band for which those cards could be reasonably requested. If we are to have a mandatory card regime for that age group we must have a threshold as it is not possible to rely on young people being in a bar and having a sandwich as an extension of the normal lunchtime bar trade. This is why in any system, which has a mandatory age requirement, some form of threshold must exist. Otherwise children would be unable to go to a bar at 4 p.m. and have soup and sandwiches. We must have some time when that is lawful and some time when it ceases to be lawful for 16 and 17 year olds to be in a bar having soup and sandwiches. This explains the background to the threshold.
Senators will be aware of the intention to move before the House an earlier signature motion for the Bill. This is urgent legislation in view of the pressing need to remove the current uncertainty regarding the holding of alcohol-free events and activities for under-18 year olds on licensed premises and in view of the situation in which I find myself whereby if the Director of Public Prosecutions directs the Garda to enforce the law as he sees it, people will be summoned and brought before the courts. The Government considered it appropriate to seek the prior concurrence of this House in a request for earlier signature of the Bill by the President.
I want to say a few words on the subject of codification of the intoxicating liquor code. Codification of the licensing laws was first recommended by the Royal Commission on Liquor Licensing Laws in 1899 and this recommendation has been repeated during the intervening period by Government-appointed commissions of inquiry in 1925, 1957 and again in 2003. I am happy to tell the House that I have done what has been sought for 100 years.
We have prepared the scheme of a Bill to codify into a single statute all licensing laws, from off-licences to on-licences, from theatres to nightclubs and across the board covering the sale of alcohol in every circumstance. The scheme of the Bill is before the Government and a number of interested Ministers are considering the scheme with a view to making a final decision in November. When this is approved by Government it will be published for consultation and moved in the Houses of the Oireachtas as soon as may be thereafter. It will replace with one Bill the licensing Acts and all statutes relating to the sale of drink, which number approximately 100, and simplify and modernise the law in this area.
The Bill will, in particular, include updated provisions relating to public houses, off-licences, hotels, nightclubs and theatres. It will also contain provisions on the supply of intoxicating liquor in registered clubs which will replace the Registration of Clubs Acts 1904 to 2003. It is radical and far-reaching legislation. At the time we debated the 2003 Bill I said we would introduce the codifying Bill. It is now with Cabinet and will be published in the near future. I ask this House to bridge the gap between now and the passage of that Bill, when we can deal with the definition of bars to our hearts' content and agree to the nth degree issues such as what constitutes a bar or a function room. While we can do all those things in the very near future, we have one moment of urgency in that century-long process of codification, which requires that people in these circumstances should not be prosecuted on the basis of a differing opinion of law among expert lawyers as to the meaning of the 2003 Act. In that context, I commend the Bill to the House and thank Senators for agreeing to take it as a matter of urgency.
I welcome the Minister to the House. The problems which teenage discos faced arose from section 14 of the Intoxicating Liquor Act 2003, introduced by the Minister. Since the commencement of this section on 29 September 2003, teenage discos started to experience problems and many of them have closed. Since that date the Minister has been assuring everybody that no problem existed with teenage discos and that everything was fine. At the same time teenage discos were being raided by the Garda and closed down. The Minister continued to assure us that his interpretation was right and that everybody else was wrong.
Section 14 is clear. If a person under 18 years of age is in the bar of a licensed premises at any time, then an offence is committed. It makes no difference whether the bar is open or shut or the shutters are up or down, the section is very clear. It is beyond my comprehension how the Minister could assert that teenage discos would be unaffected.
The belief that section 14 would have serious implications was first expressed by my party colleague in 2003 when the Bill was debated. The Minister stated that had this been highlighted at the time he would have immediately amended it. However, it was highlighted and I quote from my colleague, Senator Feighan, who pleaded with the Minister saying "if this measure gets rid of the confirmation and communion discos, the Minister should reconsider." However, the Minister did not reconsider and has persisted to this day in stating that he is right and that this Bill is not needed. The Minister issued the following statement on 10 September 2004:
The Attorney General has this afternoon advised the Commissioner that section 14 of the Intoxicating Liquor Act 2003 does not prohibit children from attending alcohol-free functions in a portion of a premises in which the bar has been physically closed and shuttered and which is not being used for the sale of intoxicating liquor.
The Minister had previously sought and obtained legal advice on the matter and had informed the Garda that section 14 did not have the effect of rendering such premises unusable for alcohol-free entertainment of teenagers and children.
The Minister very much welcomes the Attorney General's advice on the matter and that the situation has now been clarified.
That was one month ago. The present situation is completely unprecedented. The Minister is now proposing a Bill he believes to be unnecessary. He is backed up by the Attorney General who believed it was not necessary. The Opposition welcomes the Bill with open arms, as we believe it to be necessary as Senator Feighan highlighted in the debate last year. If the Bill is not necessary, why are we debating it?
The Minister's statement of 10 September was a desperate attempt to clear up the mess he made in 2003. Nothing he or the Attorney General says can wipe out what is contained in the legislation in 2003. The legislation was clear and the Minister put the Garda in an impossible position having been presented with a law requiring it to close teenage discos. On the other hand the Minister was telling the Garda that its interpretation was wrong. It was not until Constance Cassidy confirmed she was preparing a challenge to the legislation that the Minister's bluff was called and he finally agreed he was wrong. Publicans acted in good faith on the basis of the Minister's assurances that teenage discos were permissible and now find themselves being prosecuted for allowing such discos. The whole situation is a complete and bizarre mess.
The Bill does not deal with another matter of considerable importance, namely the anomalous legal position whereby nightclubs have to operate under exemptions, extensions and theatre licences. It must be addressed now, rather than next year or the year after. The Minister should recognise that nightclubs are not pubs. For many years, they have been allowed to open only at the mercy of the courts, which can grant them extensions and exemptions. Some clubs have been operating under theatre licences. Following decisions taken by the Dublin licensing court, the courts and the Garda have been forced into the invidious position of having to determine justice policy. It is not good enough for the Minister to say that he will make the necessary changes in the codifying Intoxicating Liquor Bill. The Government promised in past legislative programmes that the codification Bill would be introduced. According to the most recent legislative schedule, the Bill will not be brought to the Houses until next year, at the earliest. This issue needs to be addressed with the same urgency as the Bill before the House today.
It would be remiss of me not to refer to the Minister's acceptance, in effect, of a Fine Gael amendment in the Dáil last week. The amendment proposed the relaxation during the summer months of the ban on children in public houses after a certain time. Children will now be allowed to stay in pubs until 10 p.m. during the summer months. The new provision, which is a victory for common sense, will enable holidaying families to enjoy meals and outings together during the summer months until a reasonable hour. The Fine Gael amendment represented a reasonable compromise that will facilitate holidaying families, vintners and hoteliers. I hope we will be able to look forward to an improved tourism season next year as a result.
As I said, the Fine Gael Senators will support this Bill, as amended. The Minister and the Attorney General said a month ago that the Bill was not necessary.
Debate adjourned.