Civil Law (Miscellaneous Provisions) Bill 2021: Second Stage

Question proposed: "That the Bill be now read a Second Time."

This Bill is a pragmatic and urgent effort to address the ambiguity that requires clarification for businesses, local authorities and the gardaí to facilitate and support an outdoor summer. The Covid pandemic has seen businesses adapt to public health guidance in this unprecedented time. Today, we seek to ensure that the adaptions, which relate to outdoor seating areas for pubs, restaurants, and clubs, can be accommodated within this time-bound legislation.

As we are all acutely aware, due to the significant risk of the incidence of the Delta variant of Covid-19, the Government has decided that the next phase of reopening will be based on a cautious approach with an emphasis on lower-risk activities. This highlights the necessity for emergency legislation to bring clarity for licensed premises offering an outdoor seating area for their customers and members. We are here today because of the complex interactions between the licensing laws and, in many parts of the country, the various licences and permits issued by local authorities which were causing ambiguity. This Bill, as a temporary enactment, seeks to remove that uncertainty for permissible outdoor seating areas as defined in this Bill. It is important that An Garda Síochána has clarity on its powers for public order purposes, and that licensed premises operators understand their obligations to conduct business in a peaceable and orderly manner in outdoor seating areas where they are selling alcohol.

The Senators will note that it was considered a priority by this Government to include an urgent provision on matters dealing with an increase in the number of ordinary judges of the High Court. It had been the intention that this would be provided for in the forthcoming courts and civil law (miscellaneous provisions) Bill. However, it is being facilitated in this Bill due to the quicker and more timely progression for the High Court to better manage the pressures faced due to the Covid-19 pandemic. I take the opportunity to thank the House for facilitating this urgent Bill.

I will now outline the main provisions of the Bill. Section 1 is the interpretation section. It sets out the definitions of the Bill, and the key definition set out is that of the "outdoor seating area" of a licensed premises. Part A seeks to ensure that where a licensed premises is operating an outdoor seating area, such areas are lawfully permitted by the local authorities. Section 254 of the Planning and Development Act 2000 is the most commonly relied on authorisation. Part B provides for outdoor seating areas on private land abutting a licensed premises with a number of further conditions, including ownership or other entitlement to use the land, and that it is not already the subject of a licence. The number of seated patrons - the customers or members who can be accommodated in the area - must not exceed the number of patrons who may be accommodated in the licensed premises. The area should contain sufficient seating to accommodate the number of patrons. In addition, this cannot contain any barring area across which intoxicating liquor can be served to the public.

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

Section 2 covers the temporary licensing of an outdoor seating area. For the purposes of this legislation, the section facilitates the necessary linkage between the liquor licence and permission to operate an outdoor seating area. It proposes that for the period during which the section remains in operation, such areas are deemed to be part of the licensed premises. Section 2(1)A provides clarity that no new arrangements can be interpreted as now being in place. Section 2(1)B is an important provision to ensure the regulation of the license trade in the context of the annual renewal of licenses. It outlines that the failure to operate an outdoor area in accordance with the legislation shall be grounds for objection to the renewal of the licence or a certificate of registration in respect of clubs. This shall apply irrespective of whether at the time of the renewal the licensee ceased to operate the outdoor seating area. Section 2(3) sets out that notwithstanding the type of licence held, the sale or supply of intoxicating liquor in an outdoor seating area shall not be lawful, where the intoxicating liquor is sold or supplied for consumption off the premises or outdoor seating area. Section 2(4) seeks to bring clarity to the issue of operating hours, and to ensure that the use of these outdoor areas is in compliance with what has been authorised. This will allow the relevant local authorities to ensure the conditions of their permits are adhered to, where applicable. Section 2(5) is an important clarifying provision, that the temporary licensing of an outdoor seating area under this legislation shall not be taken to absolve the licensee from a probate authorisation under planning legislation. This provision also confirms that these temporary permissions do not allow for any activity in an outdoor seating area, which is otherwise unlawful.

Section 3 deals with directions for members of An Garda Síochána. It provides that in instances where a specified person on a licensed premises must comply with the direction of a member of An Garda Síochána. This power of direction operates in a similar manner to the powers provided under the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020. It also allows that where a member suspects with reasonable cause that a person is not complying with the licensing legislation, this legislation, or the authorisation, insofar as it relates to the outdoor seating area, a member of An Garda Síochána can direct the specified person to take the steps considered necessary to ensure compliance. A specified person who is a licensee, occupier, manager, or any other person in charge of the premises at the time who fails to comply, shall be guilty of an offence. Offences in this provision are liable on summary conviction to a class C fine or to imprisonment for a term not exceeding six months, or both.

Section 4 deals with the application of the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 to the outdoor seating area in respect of the relevant enactment.

Section 5 deals with the extension of the application of the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 to outdoor seating area. It is useful to understand that the section provides that the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 shall apply to an outdoor seating area as it applies to a relevant premises. This means that powers of An Garda Síochána under the Act to ensure compliance with the relevant Covid-19 health regulations, to an outdoor seating area. These powers will cease to apply when the Act ceases to operate.

Section 4 provides that the powers of a member of An Garda Síochána under the 2020 Act to enforce the enactment specified by that it, will apply to the enforcement of the Licensing Acts, 1833 to 2018, the Registration of Clubs (Ireland) Act, the Bill authorisation, and directions made by a member under section 3(1), as they apply to an outdoor seating area. This facilitates the gardaí to ensure compliance with those Acts and with directions made under section 3(1) by availing of, among other things, the process outlined in the 2020 Act on a temporary closure order and repeal systems.

Section 4(2) expressly states that the enforcement powers under the 2020 Act will continue to apply in respect of the enactments referred to, and directions under section 3(1), notwithstanding that the Act ceases to be an operation, to ensure that there is no uncertainty on these Garda powers on the operation of this legislation.

Section 6 deals with the applications of Criminal Justice (Public Order) Act 1994.

Section 7 deals with regulations. It provides that the Minister may, by regulations, restrict a time period by which a licensee is permitted to sell or supply intoxicating liquor in an outdoor seating area.

Section 8 deals with amendment of section 9 of the Courts and Court Officers Act 1995, which provides for an increase in the number of ordinary judges of the High Court. It provides with a maximum number of ordinary judges of the High Court to be increased by five from 37 to 42. It also provides that the Government may by order allow for an additional judge of the High Court over the maximum number permitted. The Minister for Justice must consult the Minister for Public Expenditure and Reform before requesting the Government to make such an order.

Section 9 deals with the Short Title, collective citation and commencement.

The importance and urgency of progressing this legislation without delay is obvious to everyone of us. It is an appropriate response to remove the ambiguity relating to the uncertainty that arises in the application of licensing matters to outdoor seating areas. It is also appropriate that it is time-bound, as we facilitate licensed premises to support the objective of outdoor socialising within the context of Covid-19. It ensures appropriate and proportionate oversight and enforcement within these circumstances. The co-operation of Senators on this legislation is greatly appreciated. I commend the Bill to the House and look forward to engaging with Senators on its content and purpose.

I thank the Minister for State. Contributions will be for five minutes. I call Senator Barry Ward.

I am sorry that we have as little time as we do to debate this Bill, particularly given that we are taking all Stages. There is inadequate time to properly examine it. I am surprised that no amendments were made in the Dáil. However, I praise the Office of the Attorney General and the advisory counsel within that office, who put together their response to this issue as quickly as they did. I presume they relied on advice from the small number of practitioners who are experts in licensing law. It is a rapid, swift response. On the whole, it is an excellent response. It is appropriate that we address this problem. Many publicans and restaurant owners around the country were concerned about this, so it is right that we should address it. I have tabled a number of amendments and, therefore, I do not propose to take too much time. The Bill, in all considerations, is measured. I particularly like the fact that gardaí on patrol have the power to address a problem where they see one, rather than having to go to a higher authority to get permission or authorisation to raise the issue with the occupier. It makes sense to me that a garda who spots a problem can address it there and then.

I welcome the Minister of State to the House. I also welcome this legislation. I compliment the Minister of State on the expeditious manner in which he has moved on this. I raised this issue in the Seanad a week or ten days ago. I voiced my concern about the conflict that might arise if alcohol was served in an unlicensed, both from the point of view of the license-holder and the Garda. The Garda Commissioner issued guidelines to members of the force, where he talked about using discretion. In this particular instance, laudable though that may be, I still had concerns about that as indeed had many licence holders and the Garda Síochána, as voiced by the representative associations - the Association of Garda Sergeants and Inspectors, AGSI, and the Garda Representative Association, GRA. I am delighted that this issue has been addressed in an expeditious manner. I am glad that the concerns of all those I have mentioned earlier have been listened to. This brings great clarity to the situation because, heretofore, there was potential for a conflict to arise. Nobody wants that. The vast majority of people, whether they are licence holders, publicans, or members of the public, have behaved in an excellent manner throughout this pandemic. I would like to compliment everyone involved in that. I am glad that this brings clarity to the situation. Rural publicans in particular have greater potential to encompass areas around their premises for outdoor dining or outdoor enjoyment.

There is potential for that, which I welcome.

I also welcome the move by Government to increase the number of judges of the High Court from 37 to 42. We are all aware of the substantial backlog in the legal system due to Covid-19. Indeed, I welcome there is potential to expand that number further if people feel the need arises to do that.

I praise everyone concerned, including the Minister of State, Deputy James Browne, for the expeditious manner in which he has moved to address this anomaly. Now, everyone can look forward to clarity in this area. Hopefully, people will be able to enjoy themselves in an environment where they know that there is no ambiguity in the legality of them being there consuming alcohol in the first place.

I welcome the Minister of State to the House and welcome this urgent and practical Bill. Clearly, it is important that we have certainty and clarity in the law around outdoor hospitality for licensed premises. It simply was not good enough, either for the Garda or for those running such premises, to be told that it would be left to the discretion of gardaí. Nor, indeed, was it good for those seeking to partake of outdoor hospitality.

My party welcomes the Bill. We would like to facilitate its passage. It is urgent, as the Minister of State said. It is particularly urgent now that we are seeing the very worrying developments with the Delta variant and increased transmissibility because the need to maintain socialising out of doors rather than indoors will be with us for some time. That is a particularly pressing matter now.

I want to make a few points. First, we need to facilitate safe outdoor socialising, not only in licensed premises but also in other ways. I have been contacted by cafés, in Ranelagh and in other areas across Dublin Bay South, which do not have licences and which are concerned about being facilitated to provide outdoor seating.

The Government has made available significant funding and I commend Dublin City Council on some creative uses of outdoor space and of pavements for the pedestrianisation of parts of the city. It has done a great job on Merrion Row, albeit that there is no space for bicycles cycling through that area now. It means, however, there are increased seating areas. We have seen innovative approaches being taken in, for example, Rathgar village with the collaboration between the local authority and the Presbyterian Church where we see outdoor seating provided. I understand a similar arrangement is to be made in Terenure and in other areas. Unfortunately, we have seen in my local community in Portobello some difficulties with facilitating those who want to socialise safely out of doors and also huge difficulties for local residents who have been faced with in some cases very distressing incidences of anti-social behaviour and late-night drinking, etc. More needs to be done to create safe spaces that will not interfere with quality of life for local residents in residential areas but which will enable the facilitation of outdoor dining. Provision of additional public toilets in areas away from residential communities, provision of additional bins and waste facilities as well as outdoor seating are all essential. I would put that to the Minister of State as well.

In terms of the broader picture of how we proceed with the outdoor summer in a way that is mindful of the increased risk of transmissibility with the Delta variant, we need to look at how we will manage this. This week, we saw real heartbreak and distress for many of those in the hospitality business who are running restaurants, pubs and cafés, where they do not have significant outdoor space and who had been gearing up to open indoor spaces. We all know people who have been utterly devastated. We have listened to interviews with restaurateurs. Mr. J. P. McMahon, for example, spoke about the devastation of having to cancel all the bookings he had made and facing into the huge financial and human cost of that. All of us are thinking of those people and those businesses. There are very serious concerns about how we can proceed to ensure supports for those businesses and how they can reopen, at least partially, safely.

Concerns have been expressed to me about the idea of the vaccination certificate, of the separate categorisations, the difficulty for businesses of trying to police it, the difficulty for family groups with different age cohorts, and for me, as a lawyer, the difficulty with seeing potential for indirect discrimination on the basis of age when different age cohorts do not have access to vaccine. These are all very serious problems with the concept of a vaccination certificate, albeit that all of us understand why the Government is putting this forward. What we really need is clarity on how this will proceed.

I very much welcome today's announcement that 18 to 35 year olds will now be able to access Janssen vaccine from pharmacies from Monday next. As that significant acceleration of vaccination rolls out, it may address some of the issues and concerns about this concept of a vaccination certificate but it still leaves huge uncertainty about this for businesses. I would ask that the Government would take on board the new modelling that will arise from the accelerated vaccination and that the Minister will come forward with greater clarity for businesses on reopening and for all of us on what can be done this summer.

Finally, an issue that has been raised with me extensively is the huge concern among the 60 to 69 year old cohort who feel they have been left behind and that there was an inequity with their vaccine because they received AstraZeneca. I welcome the news that they will be seeing an acceleration of the second vaccine dose but wish to acknowledge that the huge success of the vaccine programme has been reliant on public goodwill and buy-in. Where there is a perception of inequity, unfairness or lack of clarity, we see the programme being undermined. That is not in any of our interests. I put those concerns on the table and thank the Minister of State again for bringing this Bill to us this morning.

It is nice to see the Minister of State, Deputy James Browne, who is welcome. Before I address the detail of this Bill, I extend to all of the workers affected by recent Government decisions, and particularly those workers in the catering and pubs sector, my party's support and solidarity in these difficult times. I thank them for their patience as they have had to manage so many false dawns when it has come to reopening their premises as well as the hardship they and their staff have experienced with many workers losing their livelihoods in recent months.

We were all surprised when it became clear that much of the work that was done by people around the country, who set up beer gardens and outdoor drinking areas for which in many cases they received grants from the State, was done in the absence of proper authority from the point of view that the terms of their licences did not cover it. Of course, when we spoke to people who would know this, particularly solicitors, and, indeed, many vintners, they were always suspicious and asked if they were really doing the right thing, yet we the Government proposed that this was the thing to do for months without checking and making sure the legislation was in place. It is late in coming but it is very welcome.

I have been contacted by numerous people who are involved in the hostelries, pubs, bars and restaurants and by members of the general public who are annoyed and frustrated. They cannot understand why we are different from everywhere else in Europe. There must be some clarity in this regard. This legislation has a solid legal basis but, as was heard from expert witnesses at the Joint Committee on Justice over the past year, the Government has often blurred the lines, whether deliberately or accidentally, between what are legal obligations and what is health advice.

Sinn Féin is broadly in support of this Bill. It is particularly important to be clear as to what constitutes an outdoor seating area and section 1 endeavours to do this. It specifies the seating must be on public land under licence or private land beside the premises and there must be no bar or counter within the seating area. Section 2 makes it clear there will be no drinks sold in the seating area. Of course, this is to ensure there is no so-called "takeaway pints" facility. The section also allows for the Garda to object to a licence being renewed if this section is not complied with.

I am concerned about the powers given to the Garda in section 3 to charge people with an offence. These people are: the licensee of the premises, the occupier of the premises; the manager of the premises; or any other person for the time being in charge of the premises. It seems a sweeping and indiscriminate power that could result in an injustice, especially in respect of staff who are workers and not owners of the premises. Its application must be judicious and prudent.

I also have concerns about the powers of entry into a private premises that section 6 grants to the Garda. Although this power is legally routed in the Criminal Justice and Public Order Act 1994, it seems to be an extensive power to grant in these circumstances.

Although the Government is late in bringing forward this legislation, and with my observations in mind, Sinn Féin will be supporting the Bill. We would also support the amendments tabled.

I thank the Minister of State for his opening remarks and for bringing this Bill so speedily to the House. When the Garda became aware of this issue, it was unfortunate that the way it implemented the initial process was to go and tell publicans that they may not have been legally entitled to do what they were doing. It was particularly unfortunate, as other Members have said, that this came after the State had facilitated, through various and very welcome local authority schemes, the provision of infrastructure to allow publicans to do such things. Perhaps lessons have been learned, or at least I hope they have been learned, so that in future when the Garda becomes aware of an issue it will flag the matter with the Minister in advance of it coming up, rather than going out and doing what it had to do. Thankfully, at an operational level, certainly, the Garda has been very understanding of the situation and this legislation will regulate it.

I understand that this is a time-limited provision until 30 November. Hopefully, we will not need it again at that stage. I do not really fancy the idea of too much outdoor dining and drinking in December, January and February, given the weather we are likely to have. This Bill, however, is very welcome. I echo the sentiments expressed by other Members. This was an appalling, terrible and devastating week for the entire hospitality industry, but particularly for those in the licensed trade and the restaurant business. After 16 months, they had seen the prospect of some level of hope on the horizon. We have learnt in recent days that this Delta variant is devastating, impactful and has a great capacity to wreak havoc on our society. We know that, and I think publicans understand it. Still, however, it was a very frustrating week for them, their staff and their customers who were all hoping we were going to get back to some level of normality.

I note that if we all spoke for five minutes, we would not have time to do Committee and Report Stages. Thankfully, though, there are not as many people here as the schedule allowed. I am not going to delay the passage of this legislation, because I welcome it very much. I thank the Minister of State, Deputy James Browne, his Department, the Office of the Attorney General and all the people involved in progressing this legislation so speedily. As Senator Gallagher said, this Bill was only introduced in the last week or two and we already have laws coming into effect speedily. There is also a motion to ensure the legislation will take early effect when it is passed to give clarity to the hospitality industry. Therefore, I welcome all the provisions in the legislation regarding the Garda and publicans.

I ask that the Minister of State clarify the aspect of this legislation concerning increasing the number of High Court judges from 37 to 42. Is there an expectation that 42 will then be the level in future or is this increase because of the pandemic? As judges retire and get promoted over time, will their complement return to the base level of 37, or is it envisaged that having 42 judges will be the new standard level? That is my only question regarding the legislation.

I welcome this Bill. Publicans and restaurateurs and others in the hospitality industry welcome it as well. It makes perfect sense to do this. Through local authorities and other State bodies, we have already been facilitating the provision of outdoor seating and infrastructure. I acknowledge what Senator Bacik said. I tried to cycle through Merrion Row, but I have given up now and I go a different way. It is not ideal, but this is an emergency situation we are dealing with. I again thank the Minister of State and his Department, and, hopefully, we can get this legislation passed as speedily as possible.

I thank Senator Horkan for his contribution and his collegiality. Next, I call my next-door neighbour on the fourth corridor, Senator Emer Currie.

I was not going to speak on this legislation, but I then engaged with some publicans during the week and I want to reflect some of their views in this regard. I welcome the clarity that this legislation gives to them, the Garda and the local authorities. The point made to me by the publicans concerned how stressful it has been for publicans in recent months to be aware of the parameters regarding their responsibilities concerning outdoor areas since they opened. Publicans have told me that it takes more work to manage people outside, because it is necessary to have enough staff to cover everybody and to be able to monitor everything. Therefore, this Bill has given publicans some reassurance. This is happening, of course, in the context of rising concern regarding the Delta variant as well. This Bill, therefore, is to be welcomed on many levels.

We have an opportunity now to step up our game regarding outdoor hospitality, not just for this summer but also for future summers. I welcome the funding being provided to local authorities for the provision of general areas to be developed. That aspect is particularly relevant as we consider more local tourism opportunities and attracting people into their local areas. I hope to see more funding being directed towards events like festivals in local areas as we enjoy our new sense of localism.

I will briefly touch on some issues. Mention was made of public toilets. We must change our view of public toilets and public infrastructure. We need them. What happens when public toilets are opened in public parks is also incredibly frustrating, however. In my area, some €170,000 was allocated to provide five unisex toilets for Millennium Park in Blanchardstown, where we have our first changing places facility. However, those new toilets were damaged the day after they were opened. They were vandalised, and that has happened three times now. We must think about the infrastructure we need, look to other countries and ask why we do not have the outdoor spaces and public infrastructure we require. We must call out those people who are trying to undermine this endeavour and tell them it is just not acceptable for public money to be wasted.

It is also important for local authorities to work with local businesses that are struggling as they operate in outdoor areas. They must be helped to maximise the spaces they have. When it comes to their dining tables and possibly using car parks in this regard, such endeavours could mean the difference between survival and failure in the months to come. Therefore, I appeal to local authorities to ensure they work with those businesses as closely as possible.

I welcome the Minister of State, Deputy James Browne, and I invite him to respond to the contributions made during this Second Stage debate.

I thank the Members of the House for their contributions on this Bill. I thank the Attorney General, the Office of the Parliamentary Counsel, OPC, the officials in the Department of Justice, the Minister for Justice, Deputy Humphreys, and the Minister of State, Deputy Naughton. It really has been a case of all hands on deck to try to get this legislation introduced as quickly as possible due to the importance of bringing clarity to this issue.

This important legislation comes at a sensitive time. We are seeking to remedy a situation where no current avenue exists to address the gap regarding liquor licensing for outdoor seating areas within the public realm. However, to ensure there is Government regulation and guidance for outdoor activities in the context of the Covid-19 pandemic, it is sensible to provide some clarity and assurances for licensees who are relying on private property immediately adjacent to their licensed premises to provide outdoor seating. This Bill achieves a balance in addressing the needs of the businesses, the Garda and the local authorities in having certainty in regularising this situation with this time-bound measure.

I previously outlined the main provisions of this Bill. It is clear that this will be an effective measure to address this matter for licensees for the period ahead. What is clear to us all is that it is important for the Government to deliver on its commitment to modernise alcohol legislation without delay. I am pleased that the Department of Justice is driving this long-needed reform. The complexity of the law in this area and the challenges associated with this matter demonstrate the real impetus for this change. We are determined to progress this legislation and we will work with this House to codify the licensing laws and to bring a more permanent solution to the issues arising in this legislation and those wider issues concerning the licensing laws.

Several Members raised the decision to increase the number of judges in the High Court. Significant delays have arisen in the courts system because of the impact of Covid-19, but delays in the system have also been ongoing for several years. Justice delayed is always justice denied. Therefore, we must create a situation where we can ensure there is a significant way to address the delays in our court system.

There is a judicial planning working group in existence. Its aim is to identify, through an evidence-based process, how many High Court judges we need into the future and proposals around the planning courts and things around that area. These are needed. The permanency of them will centre around the needs, as identified, by the judicial planning network.

Section 8 is an urgently-needed measure which provides an opportunity to address the challenges facing the courts. It is important to note that, in creating an offence and in the application of the Criminal Justice (Enforcement Powers) (Covid-19) Act 2020 to these outdoor seating areas, the overwhelming majority of licencees complied with the enforcement powers Act provisions and it is anticipated these provisions will similarly be adhered to with few exceptions.

However, the powers contained within this legislation are necessary for enforcement on those rare occasions the legislation is not being adhered to. It is also noted there is a sunset clause in place until 30 November and this House will have an opportunity to consider whether it is appropriate for this legislation to be renewed at that time. Of course, we hope all licensed premises will be able to return to indoor services as soon as possible, but in the meantime, the importance of this Bill is in evidence to us all.

Before going into law, I studied at the Dublin Institute of Technology, DIT, on Cathal Brugha Street, in the hotel and catering areas. I worked in hotels, pubs and restaurants for approximately 13 years of my life. I worked up-house, in kitchens, as a porter and in bars. I did everything and anything that could be done. I have a real understanding of the hospitality sector and the preparation and work which goes into getting a premises ready for opening. There has been serious mental and financial stress on our hospitality sector and I very much understand the stresses on it. No decisions are made lightly.

This urgent and practical Bill aims to provide certainty and clarity and provides some help to those pubs, both in urban and rural areas. I compliment Wexford County Council, An Garda Síochána and the businesses in Wexford, which have worked well together in resolving issues around the outdoor spaces. They all deserve compliments in that area. There is a specific challenge. I have dealt with a number of pubs in County Wexford that simply do not have those outdoor spaces. The county council and An Garda Síochána have worked with those businesses to provide car parking spaces on the street and allow those to be converted, where possible.

I understand the stresses on the owners, those who hold the licences and the staff. It has been a stressful situation. I hope this legislation can, in some way, help that situation and we can all get back inside those premises as soon as possible.

I thank the Minister of State for sharing that interesting experience with us.

Question put and agreed to.

When is it proposed to take Committee Stage?

Is that agreed? Agreed.