Dáil Éireann Debate, Wednesday - 8 December 2004
60 Dr. Upton asked the Minister for Justice, Equality and Law Reform the reason he has decided not to use the powers available to him under the Intoxicating Liquor Act 2003 providing for the traceability of alcohol sold on a take away basis; if he intends to introduce measures to assist the gardaí in tracing alcohol sold to persons under age; and if he will make a statement on the matter. [32522/04]
View answerSection 22 of the Intoxicating Liquor Act 2003 provides for the making of regulations specifying particulars to be affixed to containers in which intoxicating liquor is sold for consumption off licensed premises which are adequate to enable the licensee and the licensed premises concerned to be identified.
While the labelling of containers in which intoxicating liquor is sold with a view to combating under age consumption of intoxicating liquor is an attractive idea, significant challenges would need to be overcome to render it effective in practice. Those challenges arise under two headings.
First, practical difficulties will be encountered where several individual containers are packaged together for sale, for example, a six pack of bottles, a plastic wrapped tray of cans or a nailed wooden box containing bottles of wine. That raises the important question of whether the label should be attached at the point of sale or earlier in the distribution chain.
Attaching labels at an earlier stage would be simpler but it would create logistical difficulties for importers and distributors and that would lead in turn to increased distribution costs. Moreover, in the case of imports from EU countries, such additional labelling requirements could be regarded as infringing internal market rules. Also, it would be naive to overlook the possibility of labels being removed, or being made non-legible, after sale. The possible transfer of the contents to another unmarked container cannot be ruled out either.
Second, from an enforcement perspective, it is clear that possession by an under age person of a labelled intoxicating liquor container does not in itself constitute proof that the product had been illegally supplied to that person by the licensee whose particulars appear on the container. The container in question may have been taken from the family home or may have been sold to a person over the age of 18 years in good faith by the licensee before being passed on to the under age person. Such a container may have passed through several hands before finding its way into the hands of an under age person.
Issues relating to the evidential value of being found in possession of a labelled container were raised during consultations on implementation of section 22 of the 2003 Act and my Department subsequently raised them with the Office of the Attorney General. The Attorney General's office has expressed serious doubts about the evidential value of possession of a labelled container and doubt is therefore cast on the utility of any regulations that might be made under section 22 of the 2003 Act.
One option that could be considered in the context of future legislation is a presumption that any intoxicating liquor container found in the possession of an under age person had been purchased by that person from the licensee identified on the container until the contrary was proved. However, the Attorney General's office has also advised that such a proposal would raise serious constitutional issues and would run the significant risk of being found to be inconsistent with Article 38 of the Constitution.
For those reasons, I do not, as I have already stated on several occasions, intend to make regulations under section 22 of the 2003 Act at this time. I will, however, give further consideration to this matter in the context of the forthcoming Bill to codify the licensing laws. I will give serious consideration to any reasonable and workable proposal that would deal with this matter without giving rise to the practical, enforcement and evidential difficulties that I have outlined.
