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

SECTION 1

Amendments Nos. 1 to 5, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 1:

In page 4, line 18, to delete “and” where it secondly occurs and substitute “or”.

I will speak on all five amendments together. These are largely technical amendments. Some are more important than others. Amendment No. 1 deals with a provision in the definitions section, section 1 of the Bill. It is to create a list and replace an "and" with an "or", rather than to have a requirement. It is under the definition of authorisation and defines what an authorisation given by a statutory authority is. It refers to a licence granted under section 2(5)(4) of the Planning and Development Act 2000 and a consent given under section 71 of the Roads Act 1993. I am suggesting they should be two separate things which would ground an authorisation.

Amendments Nos. 2, 3 and 5 relate to the same issues. In the definitions section, terms such "Licensing Acts", "Minister" and "Registration of Clubs Acts" are defined as relating to various different things. I am suggesting the definition section should give the term which would replace the term used throughout the Bill. If that is the case, the word "the" is missing. That is a technical amendment I am suggesting.

Amendment No. 4 is much more important. Amendment No. 4 refers to the definition of "licence". "Licence" is a defined term in section 1 of the Act. It means a licence for the sale, by retail, of intoxicating liquor whether granted with or without of production of the Circuit Court or District Court. It is what we think of when we talk about a liquor or bar licence. It is a licence in the context of the service of alcohol.

The term is used again in the definitions section when defining an outdoor seating area. An outdoor seating area is an important part of this Bill. That is what it is all about. The definition of an outdoor seating area is all-encompassing and complex. The definition states that an outdoor seating area means, with regard to a to licenced premises, an outdoor seating area on private land abutting premises where the land is owned or occupied, by way of a lease or licence, by the licenceholder of the premises.

The use of the word "licence" is quite different from the definition of "licence" in the context of the Bill. The licence used throughout the Bill means a liquor licence, but in this case, it is a licence to occupy. It is a licence for somebody to use or occupy land. It is given in a totally different context. My concern is that without clarifying what this word "licence" means - the way I am suggesting is we call it a "licence to occupy", so it is differentiated from the use of the word "licence" elsewhere in the definitions section - it introduces a confusion or lack of clarity on the word licence. In amendment No. 4 I am suggesting the word "licence" be replaced with the words "licence to occupy".

Ar mhaith leis an Aire Stáit an grúpa sin a fhreagairt?

I thank Senator Ward for putting forward these amendments. In terms of amendment No. 1, which proposes a change to the definition of an authorisation, I do not intend to accept this amendment as the definition is sufficient as drafted. The use of the word "and" in both instances is of the proper form and construction and the proposed amendment may have unintended consequences for the interpretation of the Bill.

In terms of amendments Nos. 2 to 5, inclusive, my officials have consulted with the Office of Parliamentary Counsel concerning the language suggested in the Senator's amendments. The Office of Parliamentary Counsel has advised my officials the definitions in the Bill are in the correct form, as currently drafted. Furthermore, on amendment No. 4, the Senator will be aware section 21 of the Interpretation Act 2005 provides that when an enactment contains the definition or other interpretation provision, the provision shall be read as being applicable except insofar as the contrary intention appears in the enactment or the enactment under which the enactment is made.

On that basis, the Senator will appreciate the additional language he has proposed for the term "licence" is not needed and could cause difficulty and confusion, as the specific term of "licence to occupy" is not defined in the Bill. For those reasons outlined, I cannot accept any of the amendments.

I do not agree with the Minister of State, especially with regard to amendment No. 4, but I accept what he said. If he is satisfied it will not create a problem, I will not press the amendments.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 4, line 34, to delete “Licensing Acts” and substitute “the Licensing Acts”.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 4, line 35, to delete “Minister” and substitute “the Minister”.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 5, line 6, to delete “licence” and substitute “licence-to-occupy”.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 5, line 21, to delete “Registration of Clubs Acts” and substitute “the Registration of Clubs Acts”.

Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2

Amendments Nos. 6 to 8, inclusive, are related and may be discussed together.

I move amendment No. 6:

In page 5, line 24, to delete “of a licensed premises”.

These amendments relate to section 2 of the Bill, which deals with the temporary licensing of outdoor seating areas. To a large extent, this comes back to the definitions section. Section 2(1) reads, "Subject to this Act and notwithstanding any other enactment, an outdoor seating area of a licensed premises shall ... " and so on. However, the definition of an outdoor seating premises in section 1 specifically states that it is an outdoor seating area of a licensed premises. The repetition of the term "licensed premises" in section 2(1) is unnecessary and will create a problem so I suggest that it be deleted.

On amendment No. 7, section 2(1) also states that an outdoor seating area "shall, for the period during which this section continues in operation, be deemed to be part of the premises ...". Again, "licensed premises" is a defined term within the Bill, under section 1. That part of section 2(1) should read "be deemed to be part of the licensed premises" rather than "the premises".

Amendment No. 8 refers to section 2(1)(a). This subsection relates to the conditions on outdoor seating area provision and states, "it shall be lawful for the licensee of that licensed premises to sell or supply intoxicating liquor in the outdoor seating area ... " I am proposing that it instead state that it will be lawful for them to sell or supply intoxicating liquor for consumption in the outdoor seating area. My understanding is that the sale of the alcohol takes place on the licensed premises rather than in the outdoor seating area and the definition of an outdoor seating area in section 1(b)(vi) specifically precludes "the sale or supply of intoxicating liquor by the licensee to patrons in the area ... " and the presence of a bar over which alcohol might be sold, for example. While there might be service staff in the outdoor seating area delivering drinks, and there is no difficulty with that, it is not the intention of the Bill to provide for the right of the licensee to actually sell alcohol in that area. The idea is that the alcohol is sold from the licensed premises but consumed within the outdoor seating area. There is a gap in section 2(1)(a) and so I am suggesting that the words "for consumption" be included in it.

I thank Senator Ward for his proposed amendments and his detailed analysis of the Bill. When legislation is challenged at such a forensic level it strengthens it and challenges the officials. Amendments being brought forward is always welcome, whether they are accepted or not, because they are a critical part of what we do here.

Amendment No. 6 seeks to delete the term "licensed premises" from section 2(1). This section facilitates the necessary linkage between the liquor licence and the permission to operate an outdoor seating area. Therefore, it is crucial to maintain that term. It is important that An Garda Síochána has clarity on its powers for public order purposes and that licensed premises owners understand their obligations to maintain order in public areas where they are selling alcohol. I cannot accept the amendment for the reasons outlined.

With regard to amendment No. 7, the Senator will note that the definition of a licensed premises in section 1 already includes a reference to a premises. Furthermore, the specific reference to a premises concerned on page 5, line 25 of the Bill is directly connected to the reference to a licensed premises immediately preceding it on line 24 and is to be read as such. On that basis, while I appreciate the Senator seeking clarity with his amendments, this amendment is not necessary.

Amendment No. 8 seeks to insert the words "for consumption" into section 2(1)(a), for it to read, "it shall be lawful for the licensee of that licensed premises to sell or supply intoxicating liquor for consumption in the outdoor seating area". While I appreciate the intent behind the amendment, I advise the Senator that section 2(3) provides that no matter what type of licence is held, the sale and supply of intoxicating liquor for consumption off the premises for an outdoor seating area shall not be lawful. This issue has been sufficiently addressed in that subsection. Furthermore, it is the Government's intention that, following the eventual resumption of indoor service and dining, alcohol may be purchased and consumed either indoors in a licensed premises or in an outdoor seating area as defined by this Bill. I am sure this is not the Senator's intention but his amendment would unfortunately limit the consumption of alcohol to an outdoor area and would prevent the free movement of patrons between indoor and outdoor areas with their drinks. That is obviously not his intention but that is the analysis of the officials. It is for these reasons, which I am sure the Senator will appreciate, that I cannot accept the amendments.

I appreciate what the Minister of State said and I am grateful for his remarks. I accept what he says about amendment No. 8. However, I disagree with him about amendment No. 6. The outdoor seating area definition in section 1 of the Bill states that it relates to a licensed premises and then goes on to define terms. Under this Bill, there is no other outdoor seating area except an outdoor seating area of a licensed premises, so in essence we are talking about an outdoor seating area of a licensed premises. It is a tautology. I accept what the Minister of State said and if he does not think this is going to create a problem I will not push the issue. The same applies to the licensed premises referred to in amendment 7. I do not agree with what the Minister of State said but I accept it. If greater minds than mine have considered this and decided it is not an issue I will not press the matter. In the circumstances, I will withdraw the amendments.

I thank the Senator for both his co-operation and his personal humility.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 5, line 25, after “the” where it firstly occurs to insert “licensed”.

Amendment, by leave, withdrawn.
Amendment No. 8 not moved.
Section 2 agreed to.
Sections 3 to 5, inclusive, agreed to.
SECTION 6

I move amendment No. 9:

In page 8, line 20, after “purposes” to insert “of section 3”.

This is a purely technical amendment and I do not think it is important.

Amendment, by leave, withdrawn.

I thank Senator Ward, who is being beyond co-operative.

Section 6 agreed to.
Section 7 agreed to.
SECTION 8

I move amendment No. 10:

In page 9, to delete lines 1 to 10 and substitute the following:

"(2) Where the Government—

(a) receives a request from the Minister,

(b) the Minister has made the request after consultation with the Minister for Public Expenditure and Reform,

(c) the Minister and the Minister for Public Expenditure and Reform are of the opinion that, that it is necessary in the interests of the administration of justice to do so, having regard to—

(i) the volume of business to be transacted in the High Court or any other reason arising from the state of business in that Court, and

(ii) the need to ensure the efficient transaction of business in that Court,

the Government may, by order, provide that the number of ordinary judges of the High Court otherwise provided for under any enactment, for the time being in force, may be exceeded by one.".".

I very much welcome section 8. It is something we have called for on a number of occasions at the justice committee and elsewhere. There is a serious shortage of judges. I remind the Minister of State this is not just in the High Court but in other courts also. I hope the Minister of State will take on board the fact there is a shortage generally.

The amendment I have tabled relates to the second subsection of the proposed section 9 to be inserted in the Courts and Court Officers Act 1995. I will read the proposed section:

Number of ordinary judges of High Court

8. The Courts and Court Officers Act 1995 is amended by the substitution of the following section for section 9 (inserted by section 1 of the Courts Act 2015):

"9. (1) Subject to subsection (2), the number of ordinary judges of the High Court shall not be more than 42.

(2) The Government, on the request of the Minister made after consultation with the Minister for Public Expenditure and Reform, and where they are of the opinion that, having regard to the volume of business to be transacted in the High Court or to any other reason arising from the state of business in that Court, and to the need to ensure the efficient transaction of business in that Court, it is necessary in the interests of the administration of justice to do so, may by order provide that the number of ordinary judges of the High Court otherwise provided for under any enactment for the time being in force may be exceeded by one.".

I have been a barrister for 15 years. Before that I worked for two years in Leinster House dealing with legislation. I read the section 15 times before I had any idea what it meant. It is the most convoluted absolutely illegible and impenetrable paragraph I have seen in legislation since I became a Senator 12 months ago. It is absolutely impossible to dissect exactly what is involved in it.

What I propose in the amendment is a restructured paragraph that does not change the import of it, as far as I am aware, assuming I have read it correctly. I propose that the paragraph be restructured so it is legible to ordinary people as much as to legislators and lawyers and those who have to implement the legislation. The Minister of State can correct me on this as I may have misinterpreted it. Even if I have misinterpreted it, it only goes to further the point that it is impenetrable as a piece of legislative drafting.

It seems that what the section is saying is that the Government must receive a request from the Minister, being the Minister for Justice, that the Minister for Justice must make that request having consulted the Minister for Public Expenditure and Reform, and that both of them must be of the opinion that it is necessary in the interests of the administration of justice, having regard to the volume of business done in the High Court or any other reason, and the need to ensure the official transaction of business in the High Court, and that after all of this is done the Government may, by order, provide for an extra judge in the High Court. This is my reading of it after the 15 times I had to read it. I have restructured this in amendment No. 10 into a paragraph that can be read by somebody who does not deal with this all day every day. This is why I have tabled the amendment.

With regard to the number of judges, the judicial planning working group has been convened and is examining the number and type of judges that will be required in our courts system over the coming years. It will address not only the need for High Court judges but judges throughout the service. This is timely and very badly needed.

Amendment No. 10 proposes restructuring the second paragraph to be inserted in section 9 of the Court and Courts Officers Act 1995. I have discussed the amendment with my officials and have consulted the Office of Parliamentary Counsel on the approach suggested by the Senator. The departmental officials and officials from the Office of the Parliamentary Counsel have advised that the text in the Bill is consistent with the format and approach used for similar provisions elsewhere in the Statute Book. While plain and clear language should be encouraged, the Senator will appreciate that when it comes to legislative provisions on the courts I recommend against deviating against the established drafting principles and norms. In these circumstances I cannot accept the amendment at this time.

I agree with the Senator's sentiment. However, it would appear that the section as drafted does comply with other convoluted legislation and interpretation. It is consistent and will be effective as is. I certainly agree with the Senator's sentiments that in anything we do we need to look more and more at plain language. Other sections of the Department, such as those that deal with domestic violence and immigration, are increasingly engaging, and I am encouraging it, with the National Adult Literacy Agency to ensure plain, simple and clear language is used as much as possible. The law should be accessible for people to be able to understand. It probably requires a much bigger and broader piece of work to get our legislation into more user-friendly language.

As ever, I accept how reasonable the Minister of State is about these things. I accept what he says. I do not dispute that it probably conforms with existing drafting norms. Perhaps this is part of the problem. I also recognise the Minister of State is quite right in saying this is part of a bigger problem in legislation. It is something that will be required to be addressed to a significant extent at a high level in the draftsman's office.

Notwithstanding this, we have a section that is illegible, and somebody who has been at this for a very long time has to dissect it to understand what it means. I am grateful to the Minister of State because I think I have understood what the subsection means in terms of how I have restructured it but I do not accept that we cannot restructure this. I do not accept that by restructuring it we in any way endanger its meaning. In fact, I think the opposite is the case.

When we have ambiguity, whether it conforms to legislative drafting norms or not, and when we have this level of confusion about what a subsection means, it is a bad thing by any level. I cast no aspersions on the Minister of State or the officials but I regret the Executive and Department have decided they would rather stick to the norm, which I say does not work, than to look at incorporating something that is much more legible and much more functional. I accept what the Minister of State has said. I do not think it will endanger the operation of the Bill and I will not press the amendment on this basis.

I want to make a comment on Senator Ward's contribution and that of the Minister of State. During discussions on justice matters in this House, we are privileged to have many eminent brains, as I am sure the Leas-Chathaoirleach will agree. If some of my colleagues who are extremely well qualified in this area are struggling to understand the text in these Bills, God help us poor lesser mortals with fewer qualifications in this regard. It is something I know has been mentioned previously and I commend Senator Ward on raising it again. I know it is not a discussion for today, and I will not hold up the proceedings of the day discussing this issue, but it is something I feel needs to be looked at. I would very much welcome if the Minister of State took on board Senator Ward's comments, not only on this section but generally. It would make the workings of the House much more understandable, if I can use that expression, for us all, never mind the general public at large.

With the best of intent, Senator Gallagher is being unduly self-effacing.

Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9
Question proposed: "That section 9 stand part of the Bill."

My comments again come back to drafting norms. A practice has grown over time where the Short Title, commencement and those other operational aspects of the Bill have gone into the last section. I know that particularly in the Department of Justice it is the preferred way to do it. I must say I disagree. I say this because there is a minute left at the end of the session. It is part of the simple chronology of reading legislation that what people want to know at the start of reading a Bill are the definitions, which remain at the start of Bills, but also what the Bill will be called, when it will come into effect and all those other details that are contained in the final section.

I simply say that as a commentary on the legislative drafting process in general. Those details should be at the start of the Bill rather than at the end. I understand that this is another drafting norm.

The Minister of State does not need to respond to that. It is self-evident. I thank the Senator for that and I thank my colleagues.

Question put and agreed to.
Preamble agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Is that agreed? Agreed.

Bill received for final consideration.

When is it proposed to take Final Stage?

Is that agreed? Agreed.

Question proposed: "That the Bill do now pass."

Congratulations to the Minister of State on the speedy enactment and bringing forward of this legislation and I thank colleagues for their co-operative and common-sense approach to it. It shows a commitment to the common good that we are not grandstanding and delaying this legislation. I also thank Senator Ward for his forensic amendments.

Question put and agreed to.