Intoxicating Liquor Bill 2003 [ Seanad ] : Report Stage.

An Leas-Cheann Comhairle

I draw the attention of Members to a typographical error in amendment No. 46 in the name of Deputy Deasy. The amendment should refer to page 24 and not page 23.

Amendments Nos. 1, 2, 42 and 43 are related. Amendment No. 43 is an alternative to amendment No. 42. As they are related, they will be taken together. Is that agreed? Agreed.

I move amendment No. 1:

In page 5, line 7, to delete "AND THE EQUAL STATUS ACT 2000".

These amendments are to deal with the assault on the Equal Status Act by this Bill and the Minister for Justice, Equality and Law Reform. I propose to strike all references to the Equal Status Act 2000. This Bill is not the place to deal with amending the Equal Status Act. If it is to be amended, it should only happen after a proper consultation and review with its stake holders. At minimum, the Equality Authority and the Human Rights Commission must be satisfied that any amendment does not undermine the equality rights in this State. In the Bill we have sections 14, 15, 19 and 25 that all impact on the operation of the Equal Status Act and are considered a threat to the equality laws in this State.

This is not perceived just by Sinn Féin but by a broad coalition of the following reputable groups: the African Refugee Network, Age Action Ireland, Age and Opportunity in Ireland, Amnesty International, the Community Platform, a network of 27 non-governmental organisations, the Community Workers' Co-operative, the Forum for People with Disabilities, the Gay and Lesbian Equality Network, the Immigrant Council of Ireland, Integrate Ireland, the Irish Congress of Trade Unions, the Irish Council of Civil Liberties, the Irish Traveller Movement, the National Traveller Women's Forum, the National Women's Council of Ireland, the National Youth Council of Ireland, the One Parent Exchange Network, Pavee Point, Threshold, Treoir, and The Wheel. I apologise if I inadvertently missed a group.

So concerned were those groups that they came together to form the Equality Coalition in an attempt to protect the integrity of the Equal Status Act. For this I congratulate them, but they should also be given the opportunity to be heard before any attempt is made to dismantle the Equal Status Act and its provisions. Despite the broad condemnation and the likely adverse impact of this Bill's proposals on the Equal Status Act, the Minister for Justice, Equality and Law Reform continues to fast track this pet Bill of his through the Dáil without proper debate. It is not an acceptable way to make legislation. Anything that potentially undermines the Equal Status Act is of public importance and has implications far beyond the limitations and intentions of this Bill. It sets a precedent that allows an exemption from the obligations of the law for one group and has broad implications for the rest of society as a whole and the direction we are taking as a nation.

I consider this another volley fired by the Minister in his self-declared war on a rights-based society. He is proud in his reports to the media that he will not tolerate a rights-based society. He will make sure that no such thing comes to fruition. The groups in the Equality Coalition and I intend to defend the integrity of the equality legislation which was fought for and hard-won. It was won, in principle, in the conclusions of the Good Friday Agreement. We should remember that the Agreement was endorsed by 94% of the people in this State and 86% on this island. The Minister should not under estimate the importance of this social gain to the majority of people on the island and in this State.

Section 19 removes the jurisdiction of the Equality Tribunal to hear discrimination claims by licensed premises to the already congested District Courts. I propose to delete the whole of this section. On Second and Committee Stages, I asked why are we giving an extra case load to the congested District Courts. Victims of discrimination by licensees will no longer have user-friendly, affordable access to an independent specialist body. This body was established a few years ago to specifically address such cases of discrimination. Victims will no longer be able to avail of the mediation services provided by the tribunal or its investigative functions. There will not be additional funds for the Equality Authority to take on this extra case load and assist in cases before the District Courts. Forms of representation such as the community advocacy will not be available to applicants before the District Court. People with disabilities are routinely excluded from licensed premises and are the largest potential group of applicants under the Equal Status Act. However, most District Courts are inaccessible, both physically and financially, for those people.

In the context of the European Convention on Human Rights and the case of the missing disabilities Bill, we are told that the District Courts are too congested to take on human and equality rights compliance cases. It, therefore, makes no sense to transfer jurisdiction away from the Equality Tribunal in the case of licensed premises.

There are other examples of mixed jurisdiction. I referred on Committee Stage to labour law adjudication as an example. If the political will is there, leaving the jurisdiction with the Equality Tribunal can work. It has only been established over a few years and was credited with working well, but we are now undoing it. The proposals in the Intoxicating Liquor Bill 2003 have been unanimously condemned by human rights and equality groups, including the Human Rights Commission and the Equality Authority itself.

The proposal was not recommended by the Commission on Liquor Licensing nor by the Strategic Task Force on Alcohol. It will not, in fact, have any effect on curbing over-consumption of alcohol, enhancing public order or enforcement of laws to this effect, which is supposedly the reason underlying the legislation.

Exempting an industry or a sector from the jurisdiction of the Equality Tribunal sets a dangerous precedent and opens the door for other areas to demand similar exemptions.

Sections 14 and 25 are a licence to discriminate and my amendment proposes their deletion. Section 14 will exclude those under the age of 15 from licensed premises, even if accompanied by parents, if it is after 9 p.m., unless, of course, they are working in the bar. It will make it a criminal offence for a licensee, parent or guardian to allow this to happen.

Section 25 amends the Equal Status Act to allow licensee discretion as to whether to allow any person under the age of 18 into the premises. In effect, this is allowing for discrimination on an age ground. The two sections taken together are the equivalent of a blanket ban on children, which will result in discrimination against lawful and responsible families and parents. It will also have a disproportionate impact on women.

It will have the additional effect of overturning Equality Tribunal decisions such as that of Maughanv. The Glimmerman. The Minister should consult the list of decisions in the Equality Authority's submission to ensure that he understands exactly what he is doing. Perhaps he does and, as I said earlier, he wants to ensure that we do not have a rights-based society, that he will do everything in his power to undermine it and to dismantle it.

Greater enforcement of existing alcohol laws does not require us to implement legislation which will allow for discrimination. Even at this late stage, I ask that the Minister and Ministers of State consult properly with the stakeholders to see exactly what will be the implications of his Department's legislation in regard to them.

Will the Minister indicate if he intends accepting any of the 46 amendments before us today? There was an intimation that the Minister would consider changes in Garda identification among other things. I tried to address concerns in this regard in my amendments Nos. 36 and 37.

An Leas-Cheann Comhairle

The Deputy must deal with the amendments currently before the House.

I am asking the Minister to indicate if there is a willingness to accept any amendments, in view of the fact that he has not tabled any amendments to that effect on the Order Paper, despite giving a commitment that this matter would be addressed.

Once again, I welcome the Minister of State to the House.

The series of amendments with which we are dealing goes to the heart of the section of the legislation dealing with equality legislation, the Equality Tribunal and the transfer of jurisdiction in certain matters to the District Court.

Reference to the Equal Status Act in the Title of the Bill is an intrusion in the legislation. The grafting on of an element that will undermine equal status legislation should not have been allowed. The Equality Tribunal and the Office of the Director of Equality Investigations are removed from examination of discriminatory aspects of admission to licensed premises.

This is the European Year of People with Disabilities, yet disabled people are routinely denied access to licensed premises. The various organisations from which we received submissions on this matter expressed concern in regard to this proposal. During Committee Stage discussions it was clear that, while the Minister was intent on taking away the full right of people who might be refused access to a licensed premises, he had no such intention of imposing a duty on licensed premises to ensure that access was provided to those with physical handicaps, particularly those in wheelchairs.

Very few licensed premises have ever put in place provisions regarding accessibility. There are very few licensed premises in this city or elsewhere with a ramp. The Minister and his colleagues are quite blithely prepared to allow the situation to be dealt with in this fashion in regard to the refusal of admission, yet no account will be taken of the corollary requirements that licensed premises should be wheelchair accessible at all times. It is not a case of what is sauce for the goose is sauce of the gander. A most disproportionate approach is being taken to this matter.

The reference to the Equal Status Act, as proposed by Deputy Ó Snodaigh, should be eliminated from the Title of the legislation and all of the issues that follow should also be dealt with in similar fashion.

This matter was also discussed in regard to the Immigration Bill. Considerable concern was expressed by the same organisations regarding the impact of this section, as was stated in respect of the Immigration Bill. The Human Rights Commission expressed its concern, as did the Irish Council for Civil Liberties, Pavee Point and the Community Forum. The Equality Authority has roundly condemned this particular provision. Although more consultation is required there is limited opportunity to tease out and improve the section and other aspects of the legislation.

The Immigration Bill was signalled for 18 months yet nothing happened until the last minute. This legislation has only been available for the past two weeks. It has only appeared on the scene even though the Minister for Justice, Equality and Law Reform has been on every chat show the length and breadth of Ireland telling us what a great job he is going to do to deal with the problems of public disorder and the abuse of alcohol.

Two weeks before the Dáil goes into recess he hits us with this mixed bag of legislation which, in some cases is unworkable, and in others undermines the hard fought apparatus for protecting, securing and defending the rights of vulnerable sections of our community. It is a shame that the Minister is going down this road.

The question of people over the age of 18 being refused access to licensed premises under amendments Nos. 42 or 43 is again a matter that is being dealt with wrongly by this House. Discretion should not be given to licensed holders to determine what age group is allowed on their premises. It is a new form of age discrimination and it should not be permitted under any circumstances. The national Parliament should decide the cut-off point for access to public houses and it should determine that a person is a minor below that age or an adult above that age.

The Minister castigated Deputy Deasy for his suggestion that the cut-off point should be 20 or 21, yet he blithely stated that he will now give full discretion to publicans to determine the cut-off point. They can decide that it should be 20, 21, 25, 30 or 65 as long as they make it their policy and give notice of same. That is not the type of permission to give to publicans regarding the citizen's right to access to licensed premises. Such a decision should be taken in the national Parliament. We should be able to tell publicans that a person who has reached the age of 18 or whatever age we decide should be allowed access to their premises. Deputy Deasy might say the age limit should be 21 and someone else might want a different age. I would like it to be 18, which is the age of adulthood in this country. We should legislate for that.

This legislation is a step in the wrong direction. Having put some fine principles into law, established the Equal Status Act and set up the Equality Tribunal, which is just beginning to find its feet and to deal with cases of discrimination, we are moving backwards. Some of the cases being cited, such as Maughanv. The Glimmerman, highlight the legitimate concerns of our citizens. I know John Maughan. He had lost his eyesight and was in a licensed premises with his child. That was legitimate. If we want to uphold the family and keep it together, as we strive to do under our Constitution, why are we pulling it apart by including so many age barriers in relation to the use of licensed premises?

We should improve how those licensed premises operate. We have the ability to do that. Given that we are not trying to break up the cartel in the licensed trade, we should lay down strict rules on how it operates. We can regulate for licensed premises to be well operated and to do their business in an orderly fashion. We should pursue that line rather than putting in place significant regulations which have been criticised by the National Youth Council, many tourism bodies and members of the public. If the tourism bodies and the National Youth Council are against it, the Minister should be concerned. We are still concerned about this legislation. The Minister is trying to operate like the old fashioned parish priest with the blackthorn stick. It is anti-family, anti-tourism and anti-fun. The Bill is a step backwards and it should not be passed in its present form. I support the amendments.

I want to home in on one point which some members of the Minister of State's party raised on Second Stage. I am concerned – I raised this on Committee Stage, although I know the Minister of State was not there – that when gardaí are not in uniform and are combating under age drinking on a particular premises, there may be potential for abuse. A senior Garda officer, such as a superintendent or a chief superintendent, should authorise such an operation. The Minister said he listened to the concerns of other Deputies and that he would take them on board. Perhaps the Minister of State could clarify if those concerns have been addressed.

An Leas-Cheann Comhairle

That is not relevant to this amendment.

Deputy Ó Snodaigh mentioned something similar when he spoke to his amendment.

There is nothing in these amendments that changes or proposes to change the decision to refer certain types of cases from the Equality Tribunal to the District Court. That is a matter for amendment No. 39. We will deal with the issues raised when we debate that amendment.

The reference to the Equal Status Act 2000 will be deleted.

There is a specific proposal to delete it in amendment No. 39. I want to deal with section 25 to which these amendments directly relate. Before I do that, I want to clear up a few misconceptions. I have not been involved in the debate so far, but it is my information that this matter has been well debated. It is not a question of fast tracking it through the House. We are in the dying days of this session, but my understanding is that the matter has been well ventilated. People have put their views in a fairly robust manner and the Minister has heard many things which will assist him, particularly when he has to codify the law and to revisit all these matters this time next year.

The Equal Status Act, the Employment Equality Act and the infrastructure which has been put in place to underpin that legislation have been widely recognised as giving this country one of the most advanced equality systems in the civilised world. I do not accept that any change we make today diminishes, dilutes, downgrades or reduces the protection given by that code to the people. I look forward to dealing with that in more detail on amendment No. 39.

Deputy Ó Snodaigh said that it will no longer be possible for the Equality Authority to represent people now that the matter will be dealt with in the District Court. That is wrong. We have specifically written it into the legislation that it will continue to be able to represent them. Deputy Ó Snodaigh also alleged that the reason put forward by the Government for refusing to allow what he calls a rights-based disabilities Bill is that the District Court is congested and there is no point adding more cases to an already congested system. That does not make sense. People with disabilities who decide to go to court will not go to the District Court. They will want to go to courts above the District Court. It has nothing to do with congestion or anything of that nature.

Deputy Costello mentioned the disabled and the fact the Minister is taking away their rights. As I understand it, if a person in a wheelchair or otherwise disabled approaches a pub with a view to gaining entry and he or she is refused admission because he or she is disabled, that constitutes discrimination under the Equal Status Act. It will make the publican liable for damages whether the case is brought before the Equality Tribunal, as up to now, or before the District Court. The matter is crystal clear. Deputy Costello said the Minister was taking away the rights of the disabled to get damages or to get vindication in such cases. That is not true. We are moving those cases from the Equality Tribunal to the District Court for good reason, which I will deal with in a later amendment.

Deputy Costello also suggested that the Minister in allegedly removing these rights, which he is not, is failing to put a corresponding duty on publicans to make their premises accessible. The difficulty with that is that the Minister does not have any power to put such a duty on publicans. I cite as authority for that no less a body than the Supreme Court which held that such people in the private sector, as opposed to the public sector, can only be compelled by legislation to do something provided it does not involve more than nominal cost.

We have scrutinised the Supreme Court's decision and we have pushed the boat out as far as we can in that regard. That will be obvious when we introduce the disabilities Bill later this year.

Much reference has been made to the comments of various organisations. I live in the real world and I deal with all those organisations – I have some friends in them. I greatly respect their points of view but I will not follow them slavishly. It is for the Government to govern and it is for organisations to communicate their views. While their views are very interesting and helpful to us in formulating legislation, sometimes we take them on board and sometimes we do not. It is as simple as that. There is no imperative to take account of every single thing these organisations say.

The Government does not take any other views on board.

That is incorrect. We have taken account of the views of various organisations in many instances—

Not in the last 12 months.

—but that is far from accepting that every single word that comes from them is gospel and that the Government must bend its knee and take it on board. The Deputy's Government did not do that and this Government will not either.

These amendments seek to remove or amend section 25, which inserts three new sections in section 15 of the Equal Status Act 2000. The new subsection (3) is in line with recommendations of the Commission on Liquor Licensing and the Strategic Task Force on Alcohol. Its aim is to safeguard the licensee's discretion in dealing with the presence of people under 18 in the bar of the licensed premises. I do not believe that the exclusion of under 18s is of itself discriminatory. This is an area in which licensees should be given discretion to deal with each situation on a case-by-case basis. For example, while the licensee might not wish to have children on the premises when a large crowd is present, for example, while a match is shown on TV, he or she might not object to children being present on a day when the premises are less crowded. To require licensees to display a policy setting out every circumstance in which persons under 18 are or are not allowed on the premises would be unduly onerous and inflexible.

The new subsection (4) is designed to allow licensees to set a minimum age limit above the statutory minimum set out in the Equal Status Act 2000 as long as the policy is publicly displayed and implemented in a non-discriminatory manner. This would mean, for example, that an off-licence could restrict the sale of alcohol or certain types of alcohol to persons over 21. Of course, Deputy Costello is right: 21 is not the maximum age. One can exclude people up to age 95 if one wishes, although I do not know many publicans who will be doing that.

It is not likely to be an issue of public disorder.

This will not change the licensing laws and 18 will remain the age below which the purchase and consumption of alcohol is illegal. The Garda will not therefore enforce age limits above 18. Such policies must be implemented in good faith and not become a shield for discriminatory practices. Any person who believes he or she has suffered discrimination and has grounds for believing that a licensee does not operate his or her policy in a fair and non-discriminatory manner may seek redress before the district court.

I forgot to deal with Deputy Deasy's point, so I will do so now. It is not intended to deal with the issue of non-uniformed gardaí in the actual legislation but it will be provided for in a disciplinary code. We can communicate with Deputy Deasy about that.

I thank the Minister of State.

I can understand the purpose of amendment No. 43 in the name of Deputy Costello. If one puts up a notice in one case, why not put it up in another? That has a certain logic to it. However, if one has a policy of not serving alcohol to people below a certain age, as opposed to a policy of not allowing people below a certain age on the premises after a certain time, one's policy is more definite and settled – there is a permanence about it. Otherwise the policy can change from day to day depending on the circumstances.

Reading the section, I can see that there are legitimate fears that it could give people the opportunity of discriminating against certain people. However, when a publican is operating his premises he must take account of the Equal Status Act, section 15(2) of which provides that he must operate at all times in good faith. He cannot use the section to say that his policy excludes those under 18 at seven in the evening and then change his mind at half past seven because he prefers the cut of the person who turns up then. The circumstances can be wide and varied in which the publican must decide whether to allow people to enter and I do not think it is reasonable to expect him to put up a notice in all circumstances. With regard to an age restriction on serving, in view of the fact that it is a more definite policy, it is not unreasonable to put up a notice.

I mentioned earlier victims of discrimination by licensees. They will no longer have user-friendly, affordable access to the independent specialist body established a few years ago specifically for this purpose. They will no longer be able to avail of the mediation services provided by the Equality Tribunal, which have been used quite frequently, nor can they avail of its investigative functions. It looks as though there will be no additional funds for the Equality Authority to take on the extra burden of cases that come before the District Court, which onus this Bill will place upon it.

Also, forms of representation such as community advocacy will not be available to applicants before the District Court. A fundamental change is taking place for victims of discrimination. They might not wish to spend a lot of money pursuing their cases or they may not have enough to do so. Despite what the Minister, Deputy McDowell, said about the District Court allowing for people to be represented by the court, everybody wants the best representation possible. That option has been removed from them by this legislation. It is also no longer possible for people to obtain an amicable result.

The Minister of State went a long way towards proving my point about age restrictions on serving. If one is obliged to have a policy on refusing people over the age of 18 and that policy must be displayed in a prominent position, why should one not be obliged to display one's policy in relation to those under 18? The argument that one is at the discretion of the licensee and the other is more definite does not carry much water. If a policy is to be exercised by the publican, it should be established and available for all to see rather than only being orally communicated. There is no requirement for anything other than oral communication for one type of policy, while for the other type it must be established on a formal basis. The Minister of State seems to agree with this. Rather than our spending too much time on this here, the Minister should take certain amendments back to the Seanad.

Debate adjourned.