For a set age group, a policy is to be established and a notice fixed conspicuously on the premises. For another age group this is not required. In amendment No. 43, I propose that the notice be established in both cases in a similar fashion. I hope the Minister for Justice, Equality and Law Reform sees the merit of this amendment. The Minister of State, Deputy O'Dea, was beginning to see it before the debate adjourned.
Intoxicating Liquor Bill 2003 [ Seanad ] : Report Stage (Resumed) and Final Stage.
It is a good thing I am back in the Chamber then.
I suggested he take it back to the Seanad when the Bill goes there.
On Committee Stage, I raised the issue of those gardaí not in uniform. A number of Deputies on Second Stage raised a concern about potential abuse in this area. They felt that a superintendent, at the least, or a chief superintendent should authorise the targeting of those premises where under age drinking was occurring by this means. The Minister of State, Deputy O'Dea, said it would be dealt with under the disciplinary code rather than within the terms of the legislation. Will the Minister explain what that means and how it is going to work?
If we were to say that a member of the Garda could only enter a licensed premises with the consent of a chief superintendent and if that were put into statute form, then in order to operate a prosecution one would have to produce the chief superintendent in court to say that he or she authorised the presence of the member, which would be inconvenient, to put it mildly.
I accept that such a system could be open to abuse by members of the Garda Síochána loitering in premises for one purpose or another and appearing to be there for official purposes, as has been suggested by a number of Deputies. Such a scenario is best addressed in the context of the Garda code. Generally speaking, gardaí who are on plain clothes duty should not be in pubs. On the other hand, they might be keeping a subversive under surveillance and they might have to sit there with a pint in their hand to do so. It is a matter for internal Garda discipline to distinguish between legitimate cases for them being on licensed premises or otherwise.
Generally speaking, I would like to think that a garda, while on duty, would not be on licensed premises, unless it is for an official purpose. They should not be there and the only way to ensure that is being observed would be to make a requirement in the regulations. If it was provided for in statute, a court would require proof before one could operate on the basis of the evidence of a garda, which would be inconvenient.
If one puts the issue of gardaí on plain clothes duty being on licensed premises into the Garda disciplinary regime as part of the Garda code, then I think one is making a practical provision to prevent abuses. If abuses did come to light and if it were to emerge that a garda was in breach of the Garda code in respect of his or her presence in a premises—
The Minister's two minutes are up.
—then there would be a Garda disciplinary procedure to deal with that.
Ahern, Michael.Ahern, Noel.Andrews, Barry.Ardagh, Seán.Aylward, Liam.Blaney, Niall.Brady, Johnny.Brady, Martin.Brennan, Seamus.Browne, John.Callanan, Joe.Callely, Ivor.Carey, Pat.Carty, John.Cassidy, Donie.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cregan, John.Cullen, Martin.Curran, John.Davern, Noel.Dempsey, Noel.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Ellis, John.Finneran, Michael.Fitzpatrick, Dermot.Gallagher, Pat The Cope.Glennon, Jim.Hanafin, Mary.Haughey, Seán.Hoctor, Máire.Jacob, Joe.Keaveney, Cecilia.
Kelleher, Billy.Kelly, Peter.Killeen, Tony.Lenihan, Brian.Lenihan, Conor.McDowell, Michael.McEllistrim, Thomas.McGuinness, John.Moynihan, Donal.Moynihan, Michael.Mulcahy, Michael.Nolan, M.J.Ó Cuív, Éamon.Ó Fearghaíl, Seán.O'Connor, Charlie.O'Dea, Willie.O'Donnell, Liz.O'Donovan, Denis.O'Flynn, Noel.O'Keeffe, Batt.O'Malley, Fiona.O'Malley, Tim.Parlon, Tom.Power, Peter.Power, Seán.Roche, Dick.Ryan, Eoin.Sexton, Mae.Smith, Brendan.Treacy, Noel.Wallace, Dan.Wallace, Mary.Walsh, Joe.Wilkinson, Ollie.Woods, Michael.Wright, G.V.
Boyle, Dan.Broughan, Thomas P.Burton, Joan.Connolly, Paudge.Costello, Joe.Crowe, Seán.Cuffe, Ciarán.Ferris, Martin.Gilmore, Eamon.Gogarty, Paul.Gormley, John.Harkin, Marian.Healy, Seamus.Higgins, Joe.Higgins, Michael D.Howlin, Brendan.
McGrath, Finian.Morgan, Arthur.Ó Caoláin, Caoimhghín.Ó Snodaigh, Aengus.O'Shea, Brian.O'Sullivan, Jan.Pattison, Seamus.Penrose, Willie.Rabbitte, Pat.Ryan, Eamon.Ryan, Seán.Sherlock, Joe.Shortall, Róisín.Stagg, Emmet.Upton, Mary.Wall, Jack.
I move amendment No. 2:
In page 5, to delete lines 20 to 22.
Amendment No. 5 is consequential on amendment No. 4. Amendments Nos. 4 and 5 may be discussed together by agreement.
I move amendment No. 4:
In page 7, line 29, to delete "subsection (1)(c)” and substitute “subsection (1)(b), (c) or (d)”.
Amendments Nos. 4 and 5 refer to conduct which has occurred on the licensed premises in three specific areas. Section 4(1)(b) refers to permitting a drunken person to consume intoxicating liquor,
(c) refers to permitting drunkenness to take place in the bar and (d) refers to admitting any drunken person to the bar. As regards (c), the publican can use the defence that he or she took reasonable steps to prevent the drunkenness taking place. I do not understand why the same defence cannot be used in the other cases, that is, permitting a drunken person to consume intoxicating liquor and admitting any drunken person to the bar. Amendment No. 5 seeks to delete “drunkenness concerned taking place” at the end of subsection (4), which states that “the licensee took reasonable steps to prevent the drunkenness concerned taking place”, and to substitute “the conduct complained of”. That would refer to the defensive reason for the steps being taken to prevent the occurrence being extended to the three areas in which an offence can happen.
The Minister has already referred to the restrictions on allowing under 18s on the premises after 9 p.m. and the requirement to have evidence of age only being applied to bar areas of the hotel premises. Unfortunately, the definition of "bar" included in the Bill, even after these utterances by the Minister, still includes many more activities in a hotel premises than the Minister intended. The definition of "bar" in the Bill is:
Any open bar or any part of licensed premises exclusively or mainly used for the sale and consumption of intoxicating liquor and shall include any counter or barrier across which drink is or can be served to the public.
This extends the definition of the bar area to function rooms which have a bar counter, the food service counter in restaurants, even counters at receptions, cloakrooms or, as we all know, porters' desks. This is clearly an absurdity and an Act that contains such a provision does not make sense to those of us who are involved in the hotel business. A case could be brought to court by a garda who claimed that a 20 year old person without documentary evidence of age was in the reception area of a hotel after 9 p.m. and this could result in the judges fining the licensee up to €1,500 and enforcing a closure order on the premises. This is a major difficulty to be faced by many hotel owners in the future. Under the strict interpretation of the definition of "bar", it will also be an offence to allow children, even when accompanied by their parents, to sit in the reception area of a hotel after 9 p.m.
I put it to the Minister that the real meaning of "bar" is the part of the premises which is mainly or exclusively used for the sale of intoxicating liquor to members of the public and which should be known as the public bar. Many premises and other establishments which hold functions have a public bar. However, they also have one or, in most cases, two function room bars. That is where we supply liquor for weddings, functions, dinner dances and so on. In the main, a reasonably run, decent hotel with 50 bedrooms employs 40 people or more. They are small industries in rural areas which are of enormous importance and are sometimes the centre of the community. Anything that damages the livelihood of these establishments should not be encouraged. I know it is not the Minister's intention to do this in the Bill.
I ask the Minister to give us clarification and put at ease the minds of those in the trade who are maintaining very high standards, supplying a great service and fulfilling a need. These people have invested millions and are doing their utmost to live within the law, but the current definition of the word "bar" means they could find themselves in an impossible position.
I am having difficulty in linking the Deputy's contribution to amendment No. 4.
I thank you for your patience, a Cheann Comhairle. I very seldom ask for clarification, but I thank you for allowing me to ask this question.
Deputy Cassidy's remarks are connected with some degree of difficulty to the amendment we are debating.
There is only a couple of degrees of separation.
None the less, he has raised a point. The bar does arise in the context of Deputy Costello's amendment. The definition of a bar is "any open bar or any part of licensed premises exclusively or mainly used for the sale and consumption of intoxicating liquor." It goes on to include "any counter or barrier across which drink is or can be served to the public". The definition is a space used for the service of liquor and also the physical thing people describe as a bar, namely a counter. I ask the Deputies and also members of the Irish Hotels Federation to note that the offence created by section 34, which is inserted by section 14 of this Bill, is that the holder of a licensed premises "shall not, subject to subsections (2) to (4) of this section, allow a person under the age of 18 to be in the bar of a licensed premises at any time." One cannot be in a counter because one cannot be in a piece of furniture. The only place in which one can be is the space defined in the first part of the definition. I want to make it clear that one cannot be in the reception desk or a shelf or the porter's desk or anything of this kind.
Where there is a hatch, it is legal.
One cannot be in a hatch unless one is physically located in a hatch, sitting up there like a leprechaun.
There is no counter.
What about hatch space?
A hatch is legal.
I reassure Deputies that the offence committed under section 34 as inserted by this Bill relates to being in the space which is mainly or exclusively used for the service of alcohol.
On a related point, many Deputies have asked whether some exception could not be made for bars which allow children in after 9 p.m. when there is a match on in the vicinity. This suggestion has been put to me very forcibly, not least earlier on in this evening's proceedings during the last division. But if one allows children between the age of ten and 18 to be in the bar of a hotel or a pub on the basis that they are coming home from a match or on the basis that some food is on offer to them, the natural implication is that Café en Seine in Dawson Street can allow children in on the same basis. Any suggestions being made about this law being impractical or any suggested amendments must take into account every pub in Ireland. If it applies in the pub in Gweedore in which this happy bucolic scene is taking place, with kids coming in to have a Club Orange on the way back from the local GAA match, it must be the same in Dawson Street and in the superpubs of Dublin. Either we are serious about allowing children into those premises or we are serious about not allowing them. There is not really room for manoeuvre on that issue.
I have heard hard luck stories – it is 10 p.m. on a summer's evening, what harm for the children to have a Club Orange on the way back from the GAA match? That may sound very plausible, but how do I frame a law that accommodates that story yet makes it an offence for a 17 year old to sit all night in a super-pub 100 yards from this House? There is no way of distinguishing between both cases so I would ask Deputies to take that into consideration.
To make it clear that children can attend weddings, 21st birthday parties, school reunions and the like, the prohibition on persons under 18 being in the bar of a licensed premises is tempered by the provisions of section 14(4) which states:
It shall not be unlawful for such a holder [that is the holder of a licence] to allow a child who is accompanied by his of her parent or guardian or a person who is at least 15 years but under the age of 18 years to be in the bar on the occasion of a private function [which means the public are not entitled to go in at the same time] at which a substantial meal is served to persons attending the function.
That is as good as I can do to distinguish between events such as 21st birthday parties and the rest. I am grateful to Deputies who have pointed out all these things. I am also grateful to Deputy Cassidy who must remember that it is an offence to be in a bar; the offence cannot be committed by reference to a piece of furniture only, one has to be in a place that a court would hold was a bar. I have done everything that can reasonably be done to distinguish between those kinds of social occasions at which it is reasonable for people under 18 to attend – notwithstanding the fact that there is what we would call a bar in the corner of the ballroom or other premises. Alternatively, this legislation would even permit the bar of a premises to be closed for the evening and made available to a family or club, provided it was a private event at which a substantial meal was served. That is as far as the House can go in dividing up the various scenarios that have been outlined by Members of both Houses as the Bill went through. It is as good as we can do.
I fully accept that Deputies who have expressed doubts about the legislation would like to have a rule that would somehow accommodate children going into rural bars on summer nights to have a Club Orange on the way home from a GAA match, but I cannot do that, while at the same time saying the same thing cannot happen in a superpub in Dublin. If somebody can work out some formula whereby I can distinguish between the two, I would be only too happy to do it. I would stress, however, that since the Bill is only intended to span the 2003 to 2004 period – and there will be an opportunity next year to revisit the whole issue – my ingenuity, and that of my officials, has been exhausted by what we see before us.
As regards Deputy Costello's amendment, I want publicans to be serious about drunkenness on their premises. I do not want them to say they had a standing instruction to their staff that drunks were not to be allowed in, or that people who were drunk were not to be served. That is the kind of cop-out that would avail the owner of a superpub where people had been found stocious. I am not interested in instructions to bar staff, I am only interested in pub owners knowing that they face closure if people are found drunk on their premises. If they understand that closure will follow, as night follows day, the culture will change. If bar staff allow drunkenness to occur, the owner or manager will say, "What in the name of God are you doing? The place will be closed if somebody comes in and sees this scene." They will be out of business for a week for a first offence and that is how we can engender a different culture as regards serving alcohol.
Deputy Costello is trying to soften the effect of the provision but if we allow people to prove that they had some standing instruction or did their best in all the circumstances, we will hand to the very well legally represented owners of superpubs a way out of the obligation that I am trying to put in place. If somebody is drunk on the licensed premises, save with the exception of paragraph (c), the onus is on the owner to explain to a District Court that it is not a crime.
I am not some kind of moral puritan or whirling dervish trying to clean up Ireland but I am convinced that when this Bill is enacted, publicans – and especially those relying on lounge staff to keep the drink going out in great volumes in superpubs – will suddenly realise that there is another side to the coin, namely, if people become drunk on the premises, they will cause the pub to be closed. That will bring about a sea change in the attitudes of publicans and hoteliers to what happens on their licensed premises.
As a footnote, I accept that the great majority of hoteliers and publicans would be very worried if they thought for a moment that drunkenness was taking place on their premises. That is not the case everywhere, however, otherwise we would not have the scenes we are witnessing outside some such premises at closing time. I want to bring about a culture change and the law as proposed will have that effect. I do not want to provide more lifebelts for people who get into trouble, as well as more hooks upon which lawyers can hang their wigs to protect people on whose premises drunkenness has occurred.
I am not trying to soften the blow on publicans by any means, or make it easier for them. I am merely trying to ensure that due process continues with regard to such offences. If the Minister is specifically ruling out any reasonable steps as a defence for these matters, does he envisage that there can be any defence in any of the circumstances outlined in sections 4(1)(b), (c) or (d)?
Section 4(1)(d) makes it an offence to, “admit any drunken person to the bar”, and there is no defence against that. Does that mean that every little pub throughout the length and breadth of Ireland will have to have a bouncer on the door—
—a steward or other person employed on the door while the premises are open? There is no defence for the publican because he cannot say he took reasonable steps to ensure that a drunken person was not admitted to the bar. The Minister is saying that if a drunken person is on the premises, the publican is for the high jump straight away. Under the terms of the legislation, he will be penalised by a fine but how will this work? We want the legislation to be workable but we do not want it to be presented in such a fashion that it will be unworkable. The Minister has just said that the legislation must work in the same way for the Café en Seine in Dublin as for a premises down in Belmullet in County Mayo. The Minister should clarify why he is presenting the case in this particular fashion, which to my mind will make the law quite unworkable in some public houses.
There were a number of Members around the Minister, like bees around honey, but they would have been more than welcome to attend the debate on Committee Stage. The Minister indicated he would seriously consider reasonable amendments. I hope, when the codification of the licensing laws is introduced in a year's time, more Members will participate on Committee Stage to put the stamp of the Dáil on it with the agreement of the Minister.
Deputy Costello is saying there is no defence for a licensee if a drunken person is admitted to a bar. However, the word "admit" means one would give a licence to an individual to enter the premises whereas if he or she were able to sneak in, that would be a reasonable defence. I am not a lawyer but I am sure that would be the case. Similarly, section 4(1)(b) states that a licensee shall not “permit a drunken person to consume intoxicating liquor” but that refers to him or her knowingly selling liquor to a drunken person and there are no reasonable grounds on which to defend that. If one serves such a person, one is subject to a monetary penalty and, subsequently, closure.
Section 4(1)(c) refers to a licensee permitting drunkenness to occur in a bar and there is no reasonable defence for this. Deputy Costello referred to reasonable steps being taken to address “ the conduct being complained of” in his amendment, but if one permits drunkenness, where does reasonableness come into it? It is pretty black and white. I do not support the Deputy's amendments in this regard.
The Deputy does not support the Minister or me.
I question the wording used by the Minister.
I raised this issue on Second Stage and regret I was not present when Deputy Cassidy referred to it. I do not want to go over old ground but there is consternation among hoteliers, in particular. The Minister stated he would review this issue next year when he introduces the codification of the liquor licensing laws. When responsible people such as John Power, chief executive of the Irish Hotels Federation become concerned about such an issue, I would take notice.
The problem is that in many hotels the bar comprises the lounge, the lobby and the reception desk. Like my colleague, Deputy Deasy, I agree with all the provisions being introduced by the Minister but this provision will create major difficulties for hoteliers more than for publicans. It will make life impossible for them. Perhaps it might be possible to do something regarding the difference between a hotelier who provides rooms and people who operate bars only.
This provision will create difficulties and I raise this issue in an effort to ensure the legislation will operate effectively. I totally support everything the Minister is trying to do but this provision will be inoperable and it is creating significant concern among hoteliers. The Minister should try to redefine the provision to make it more acceptable and operable for them.
Letters were written to members of the Irish Hotels Federation in order to point out aspects of the Bill which it was felt could create difficulties but I am certain that what I said earlier is correct. "Bar", for the purposes of being in a bar, means any open bar or part of a licensed premises, exclusively or mainly used for the sale of intoxicating liquor. One cannot be in a counter, a reception desk, a hatch or anywhere else. We are concerned with the offence of being under age in the bar of a licensed premises.
The definition does not create the problems about which the members of the Irish Hotels Federation have been warned. The measures I have put in place in respect of events that can be held in bars and at which children and 15 to 18 year olds can be present are reasonable. I reiterate that the members of the Irish Hotels Federation must understand that I will not distinguish between hotels and pubs because hotels are cheek by jowl with pubs on many streets in rural and urban Ireland. If I were to introduce a law which allowed 17 and 18 year olds to stand at the bar of a hotel but not at the bar of a publican two doors down the street, it would be a disgraceful discrimination and under age drinkers would flock to hotels. I will not do that and no amount of letter writing will convince me that I should.
I have listened carefully to all the points that have been made and I have tabled an amendment regarding private functions. I have also pointed out to the House that the offence of a person under age being in a bar cannot apply, despite what members of the Irish Hotels Federation say, to the reception desk or porter's desk of a hotel. It means being in the bar of licensed premises and, having regard to what the term "in the bar" means, it means being in a place that is wholly or mainly used for the service of alcohol to the public.
There may be a few hotels where all business, including key collection, is conducted in the bar and in which there is no lounge or reception but that is not common. Such hotels will have to make new arrangements because I will not allow 17 year olds to hold up the bars of those premises on the basis that the hoteliers have designed their premises so that it is difficult for an enforceable law to apply to them. The time has come for hoteliers to understand, like publicans, that people under the age of 18 cannot be present in a bar.
We appreciate the Minister's clarification and thank him for going down the road as much he possibly could. Insurance costs have increased by 350% over the past two years and there was a war—
The Deputy should speak to amendments Nos. 4 and 5.
No, a Cheann Comhairle. I am expressing the concern that there was a war this year and it is well known that Americans do not fly.
I ask the Deputy to allow us to resume the debate because there is a time limit on it.
The industry is totally dependent on the domestic market.
The Minister did not clarify the position of a bouncer in a small pub in a rural area.
The Deputy means a steward.
No, it is a steward.
One does not permit an individual to enter one's premises if he or she does so against one's wishes. If a burglar enters a premises, one does not permit him or her to do so. Section 6(1) states, "A drunken person shall leave licensed premises on being requested to do so by the licensee. . . " and further states, ". . . he shall not seek entry to the bar of a licensed premises." On a fair construction of the Bill when it is enacted, if somebody is drunk entering a licensed premises and the licensee or bar manager says, "Get out, you're drunk", he or she is not permitting the person to be in the premises and it is not an absolute offence in the sense that if somebody were able to sneak in through the back door or entered through a skylight, the publican would be found liable. Bearing in mind the contents of sections 4 and 6, I am confident no court will interpret this as being an offence which is permitted, regardless of the attitude or behaviour of the licensee.
I move amendment No. 6:
In page 8, line 35, to delete "(1) or”.
I already asked the Minister about this matter and I am still not clear why a person who contravenes subsection (1) or (2) is guilty of an offence. This should read, “A person who contravenes subsection (2) is guilty of an offence under this section. . . ”. Section 8(1) states that a person shall not engage – it is an exhortation – in disorderly conduct on licensed premises, but if he or she does, that person is guilty of disorderly conduct and shall do the following and so on. It appears that the offence only occurs if people refuse to leave the premises and not re-enter it. Subsection (1) should not automatically constitute an offence.
This section is very important. A marker must be put down that it is not acceptable for someone to be disorderly and drunk. Therefore, a €300 fine is reasonable. We saw recently on television how spaces in the accident and emergency departments in all our acute hospitals are taken up by people who are drunk. People who are drunk and disorderly can cause damage to themselves or others. It is quite obvious that these people who take up spaces in the accident and emergency departments are drunk and disorderly and, therefore, I have no compunction about fining them €300. This may in some way pay for the upset being caused to patients and staff in hospitals where people with genuine illnesses are being inconvenienced. The fines accumulated under this section should be ringfenced for the emergency services in the acute hospitals that serve these people who have injured themselves.
I am not talking about drunk and disorderly conduct, just disorderly conduct. Disorderly conduct is defined in very broad terms in some instances. We discussed on Committee Stage the fact that anyone who is quarrelsome may be guilty of disorderly conduct. We are not talking about someone who strikes a fatal blow or wrecks a premises. It should certainly be an offence if that person does not leave the premises. I said on a previous occasion that the Minister could come under the definition of being somewhat quarrelsome. While not indulging in intoxicating liquor, because we are not talking about drunkenness, he could become fairly agitated during a lively conversation. It appears to me that "disorderly conduct" would be covered by the definition. I was concerned that someone as innocent as the Minister, just drinking a glass of orange, could be termed to be in breach of the legislation. If he were to leave the premises when requested, there would no problem. I am wondering about the two levels of offences and whether it is necessary to include them as two separate offences.
The term "quarrelsome" is already included in the relevant licensing Act. It is not a new term. I do not think it simply refers to being disputatious; it is regarded as someone who sets a disorderly argument in train.
Section 8 criminalises engagement in disorderly conduct on licensed premises. It also criminalises a person who has engaged in such disorderly conduct, who does not leave the premises or who tries to get back into the premises within 24 hours of leaving them. If I were to accept the Deputy's amendment, section 8(1) would not be criminalised. The Deputy is inviting me to say that section 8(2) is sufficient. I gave an example on Committee Stage. If I shout "get him" in the middle of a licensed premises, and start an almighty melee or riot, whether anyone can get to me with a view to requesting me to leave may be entirely irrelevant if the result is that the pub is wrecked.
The original offence of urging other people or engaging in behaviour which endangered other people or started the riot should be criminal in itself. If I were to accept the Deputy's amendment, no crime would be committed for being disorderly unless the management of the premises managed to get to the person and said "get out" and that person refused to do so. That is not a very good way of dealing with the matter.
Criminal behaviour, by being disorderly on premises, can be committed by people who are never asked to leave or who never leave. If management pointed out to a garda in the middle of a disorderly scene the person who started it all by their insulting or violent behaviour, such a person should be liable to be arrested regardless of whether anyone has managed to communicate to him or her a request to leave or regardless of whether they had or had not left.
Amendments Nos. 8 and 9 may be discussed together by agreement.
I move amendment No. 8:
In page 9, line 20, to delete "first" and substitute "second".
We discussed this matter at considerable length on Committee Stage. It is a fairly harsh decision to close down a premises on a first offence. Later in the section, a premises will not just be closed down. It states that the licensee shall affix to the exterior of the premises, in a conspicuous place, a notice specifying the period of closure and stating that the closure is in compliance with the order.
I understand the procedure that operated in the United States – the chairman of the Committee on Justice, Equality, Defence and Women's Rights will know better than me – was that one would get a warning for a first offence of that nature. Part of the warning would be a request to appear at a counselling session where the rigours of the law, the purpose of the law and the need for its enforcement would be clearly explained in order that legal compliance was assured. We want to ensure legal compliance rather than an initial harsh first strike. That was the idea behind the amendment.
I have some sympathy for this amendment, although that is not to say I will vote for it. A premises can be closed under sections 4, 7 and 17. Section 4 provides for closure in the case of permitting drunkenness or drunken persons on the premises and section 7 states that a licensee shall not permit disorderly conduct to take place. Some licensees argue that there is no way under the sun they would allow disorderly conduct but that it occurs, and they might be in a position where disorderly conduct occurs through no fault of theirs. A temporary closure order could then be put in place on the first offence.
Section 17 deals with the consumption of intoxicating liquor near the licensed premises or in an off-licence. There are various situations which could arise in which it could be imputed that licensees did something wrong but they may not be able to prove they did not. Again, licensees may face closure on the first offence.
It has been suggested by the licensed trade and others that instead of closure for a period not exceeding seven days, a substantial fine could be imposed for a first offence. I presume that period would not come at the start of Lent but at another time.
There is a possibility that a licensee could feel he or she has been treated unfairly, although that treatment would seem fair to a District Court judge. I have some sympathy with the idea of a fine and I would like to hear the Minister's comments.
I agree with Deputy Ardagh. There are people who would not deserve the maximum punishment, yet it is possible they would receive it. However, the Minister will probably say that according to the spirit of the Bill, if a licensee has a house of abuse, particularly regarding drugs, then this section addresses that issue. There may also be difficulties with alcohol being bought or secured unethically or with alcohol being interfered with. However, a licensee going to court for a first offence will face a judge with discretion.
I would not like a licensee to lose his or her livelihood for a weekend, compared to two or three days from Monday to Thursday. Licensees may have major investments in their premises and depend on their business for the family income and livelihood. There are also many overheads and substantial repayments to be made. Certification could be addressed in a certification Bill next year. I agree with Deputy Ardagh's views on this.
The effect of Deputy Costello's amendment would be that closure would not be available for a first offence. As Deputies Cassidy and Ardagh know, the great majority of licensees do not have a conviction of this kind on their records. The question is whether a closure provision in these circumstances would have any deterrent effect if everyone knew that, as in Monopoly, they had one "get out of jail free" card because they would not be closed for their first offence.
We are trying to bring in a law which will change the attitude of that minority of publicans who allow drunkenness on their premises, regardless of whether they have previous convictions. If we include this provision, which means one free offence without closure, then people will relax and think that until they have gone through the District Court process, having been caught once, this will not apply to them. That is my worry, as it would make the deterrent aspect of the provision very small.
Regarding the mandatory closure order, I stress that it is open to a judge of the District Court to apply the Probation of Offenders Act. In any particular case, although the facts are clearly established beyond reasonable doubt, the judge may decide, having regard to all the circumstances, to record the facts as proven but not proceed to a conviction. The closure order would not then apply.
In cases where a closure order is made, the maximum period of closure for a first offence is seven days, but the one day option is open, so it is not too bad. The closure could take place for one day at a date 30 days after the District Court makes its order, which is not a massive deterrent. It will not put anyone out of business or sink a viable pub to have to close for one day. In those circumstances, a District Court judge could hear a plea for leniency on the part of a licensee and if it were not that serious an offence, I hope the judge would go to the lower end of the spectrum when making the point to the publican. Even though the premises may be closed for only one day for the first offence, it is liable for closure for a month for the second offence. A shot would be sent firmly across a publican's bows if this offence were committed.
It comes down to this: If we go along with what is being suggested then, effectively, everyone is given one free go. If we say that that is the law for drunkenness on premises – that if one has never been caught before then one is never closed for the first offence – the deterrent effect is very small. Bearing in mind what I said about the Probation of Offenders Act and that the purpose of the Bill is to bring about a change in culture and of heart among the minority of publicans who are being irresponsible at present, the Bill as it stands is correct.
I was struck by the curious irony in the suggestion of a substantial fine rather than closure, although it was obviously well intentioned and I fully understand the idea behind it. It struck me that this proved the case – that closure is regarded as much more serious than a substantial fine. Letters in this regard were written to me as well as to everyone else in the House. The reason is that if one is running a superpub or substantial premises – or if one is selling drink to under age customers in a supermarket with a view to consumption outside the premises – then it seems a fine is not as big a deterrent or severe a penalty as a closure order, even for one day.
Those letters have been written to me as well as to everybody else in this House. A fine is not as big a deterrent or is not regarded as severe a penalty as a closure order of even one day. I take the point made by Deputies Ardagh and Cassidy. I fully appreciate that Deputy Costello is not trying to render the legislation toothless but if we were to make this change, we would send a message to people that they have one free go and that we are only serious about repeat offenders. The message would go out that as long as one had never been convicted, the section would hold no threat. If we want everyone's behaviour to change and everyone to be affected by the legislation, we should leave it as it is.
The offence about which we are talking is being drunk and disorderly. The Minister is talking about closing down a premises for a period of time and of putting up a sign stating the premises has been closed. I do not believe it is so much the cost. I would not be pro-publican on this issue. It is a case of the penalty fitting the offence. If the Minister is going to have the same penalty for somebody serving intoxicating liquor to a minor as for somebody being drunk and disorderly – the manner in which it is defined is very broad – he is, in a way, undermining the law because the penalty should fit the offence. There is a difference in terms of seriousness between the offence of selling alcohol to a minor and the offence of having a person who might be drunk and disorderly on a premises. That is my concern.
Believe it or not, I have, for once, some sympathy with the Minister's position. If we are serious about this, there should be a scare tactic, that is, a closure. However, the legislation refers to a closure for a period of time which could be one second. It does not state whether a premises should be closed for one day or whatever but for a period of time not exceeding seven days. A judge could close a premises for an hour or for one minute. The reason for the concern about a closure does not relate to loss of earnings for one day or for seven days but rather to the loss of business. If business goes elsewhere, it could affect the viability of the premises.
I am concerned about the workings of gardaí, the enforcement of these laws and about victimisation. We can say victimisation does not occur too often, but it has happened. The most recent case which has come to light is the McBrearty affair. We should try to ensure there are some rules in this Bill so that victimisation does not occur because the offence about which we are talking is difficult to prove. How can somebody prove whether somebody was admitted to a premises?
A small premises might be full to the brim after a match and one might not see a drunk sitting in the corner. I worked in a small pub which usually held ten people, but one night there were 150 people in it. I could not see everybody from behind the counter. If a garda entered such a pub and decided it had to be closed because he or she had clashed with the publican on occasion, he or she could state there was a drunken man sitting in the corner for two hours and that obviously he must have been admitted and permitted to drink even though there might not have been a drink in front of him. That is the difficulty. Although the Bill is well-intentioned, there are laws in place. If they were enforced, maybe we would get somewhere. I still do not know from where gardaí are going to come to enforce this legislation.
I take Deputy Ó Snodaigh's point. If gardaí want to abuse the law, they will do so. We cannot devise our laws on the basis that they may be abused by gardaí. The majority of gardaí would never contemplate abusing the law and, therefore, I must construct laws on the basis that they will be operated by the majority of gardaí rather than by a malicious miscreant who happens to be in the force.
I ask the Deputy to have regard to the definition of a drunken person which was changed between the heads of the Bill being published and the Bill as presented. All these cases must be proven beyond reasonable doubt. If there is doubt, it is resolved in favour of the accused person. A drunken person must be a person who is intoxicated to such an extent as would give rise to a reasonable apprehension – that is an objective apprehension – that he or she might endanger himself or herself or any other person. It is not just a matter of being merry, jarred, having slurred speech and so on. That is not drunkenness for the purpose of this provision. It is not even a case of one's behaviour being visibly altered. It is where it has reached a point where one is a danger to oneself or to somebody else, whether one is falling down drunk, one is seriously incapable of standing up vertically or one is in such a state that one is likely to cause a danger to others, either by hitting them or falling against them. That is the type of drunkenness about which we are talking.
The impracticality of a lower threshold was pointed out when we published the heads of the Bill, that is, that people's intellectual ability was substantially impaired and so on. We opted for a definition which was clear and objective. What I have in mind are the kind of scenes we saw on "Prime Time", that is, people who are slumped against walls, who are falling down on the street, who are a danger to themselves and to others, who are so drunk that they could wander out in front of a car and endanger the driver of that car or themselves or who knock people down as they go down the street. That is what is provided for in this Bill.
Somebody who permits drunkenness on his or her premises is judged by that yardstick. A decent publican who cannot see into the snug should not be a position where he or she is penalised because somebody gets merry sitting in it. I am referring to a person who gets so drunk as to comply with this definition—
Ossified or whatever term one wants to use. There are many terms but I must be careful because I could get into serious trouble if I used some of them. There are many colloquialisms, some of them vulgar, for the kind of drunkenness about which I am talking. One needs to be, on a reasonably objective basis, a danger to oneself or to others. I am talking about drunkenness in those terms.
I would prefer if people did not get intoxicated to that extent. It may be that purists would argue that they should not be even half way towards reaching that stage. However, we must have a law whereby a District Court judge can say, on the basis of the testimony he or she hears, that the person passed a serious threshold. In other words, the description of the drunken person was one which went beyond the threshold of drunkenness provided for in this Bill rather than people arguing as to whether people were raucous, rowdy, slurred in speech, merry or whatever other phrase one might like to use.
Socially drunk is a phrase that is sometimes used. Bearing in mind that definition, Deputy Ó Snodaigh's point is covered.
There is also my point about the fact that no minimum time is mentioned.
I thought the Deputy was wrong and I reached for the section to disprove him. I was not in a position to disprove him immediately, so he may be right.
An Leas-Cheann Comhairle
Amendments Nos. 11 to 14, inclusive, and amendment No. 41 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 11:
In page 11, before line 1, to insert the following:
Regulation and Control of Marketing and Sponsorship of Intoxicating Liquor Products
10.–(1) A person who advertises, or causes the advertisement of, an intoxicating liquor product is guilty of an offence.
(2) The Minister may, upon the application in writing of a press distributor, exempt from the application of subsection (1) advertising of intoxicating liquor products contained in such publications as are specified in the exemption concerned for such period (not exceeding one year) as is so specified, where it is satisfied that–
(a) the publication concerned has a circulation in the State–
(i) in the case of a daily or weekly publication, not exceeding 3,000, or
(ii) in the case of any other publication, not exceeding 1,000,
(b) it would not be practicable for economic reasons to require–
(i) the excision or omission from the publication of an advertisement the inclusion of which in a publication distributed in the State would, but for the granting of an exemption under this section, constitute an offence under this section, or
(ii) the publisher concerned to produce an edition of the publication for distribution solely or mainly in the State,
(c) no part of the publication is printed specially or mainly for distribution in the State,
(d) any advertisement of intoxicating liquor products contained in the publication islawful in the place where the publication is printed or first published,
(e) the publisher of the publication does not publish an edition thereof that does not contain advertisements of intoxicating liquor products,
(f) the publication is not produced solely or mainly for the purpose of promoting the smoking or sale of intoxicating liquor products, and
(g) the publication is not produced solely or mainly for sale or distribution to persons who have not attained the age of 18 years.
(3) This section shall not apply to an advertisement in a publication in respect of which an exemption under this section is in force.
(4) An exemption under this section shall be in writing.
(5) The Minister may revoke an exemption under this section where, in respect of the publication concerned, it ceases to be satisfied in relation to any one or more of the matters specified in subsection (2).(6) In this section–
‘advertisement' includes, but is not limited to, every form of recommendation of the product to the public, including, in particular–
(a) the statement of the name of the product or of any brand, trade description or designation by reference to which the product is sold, where such a statement may reasonably be regarded as a recommendation of the product to the public,
(b) the statement of any properties of the product on a label, container, wrapper or package used for the product or in a leaflet, circular, pamphlet or brochure issued to the public or given to a purchaser of the product, and cognate words shall be construed accordingly,
‘press distributor' means a person who carries on the business of supplying newspapers, magazines or other periodicals to persons for the purpose of their selling those newspapers, magazines or periodicals by retail,
‘publication' includes a newspaper, magazine or any other periodical.".
This incorporates Deputy Costello's amendment as well. Much of this was discussed on Committee Stage. I said on that Stage that drinks companies would not be pouring millions of euro into alcohol advertising if it was not effective.
Some elements to this Bill will be very difficult to enforce, but if we took a strong line on alcohol advertising it could be very effective. We cannot have it both ways. We cannot, on the one hand, all say that there is a crisis here but, on the other hand, not be prepared to take these kinds of measures and ban alcohol advertising completely.
When I brought this up on Committee Stage the European excuse was cited – that there are difficulties with banning advertising as the EU Commission could potentially make a complaint in that regard. As I said on Committee Stage, this does not cut any ice for me because many Ministers in this Government have made a career out of ignoring Europe when it suited them. This problem is big enough and serious enough for society and is costing us so much money that we have to take quite drastic measures, in some cases, to deal with it.
The Minister has admitted or acknowledged that these advertisements are targeted towards young people. That is the case. More evidence is coming out now that excessive alcohol consumption is having devastating health effects on young people. Our suicide rate among males aged between 18 and 24 years is directly linked to alcohol consumption. Clinical psychologists are telling us that it is having a drastic effect on young people's health, and we cannot ignore this any longer.
Every time I have brought this up, and I have done so many times, members of the Government have cited legal and legislative impediments and argued that is not a practical measure. I do not believe that to be the case. Many of the sections and measures in this Bill will be extremely difficult to enforce. The enforcement is not there as it is. This is something that we badly need to do, and it would have some effect on the kind of problem we have with alcohol right now. I will be pressing this amendment.
My amendment is quite similar to that of Deputy Deasy. The Minister said at the outset in launching this legislation that he was anxious to get it through because of the urgent need to do something about the disorderly conduct and drunkenness that is more at large than was previously the case.
The Minister has introduced a number of measures to try to do that, a number of which I would disagree with. Some of them are unworkable and there are problems with quite a lot of them, but there would be no problem with introducing regulations to either prohibit or restrict the sale, advertising, marketing or display of intoxicating liquor. The Minister could introduce legislation that would allow for certain products to be prohibited because they are targeted exclusively at young people, contain very high volumes of spirits and are presented in such a fashion as to deliberately seek to mislead and pretend that they are connected with good living, good health and sport.
If the Minister was serious about getting something done urgently, this is the type of regulation he would introduce. One of the regulations that he proposes in a previous subsection – I think it is subsection (20) – is to put an end to the happy hour. That is a type of promotion, so I cannot for the life of me see why the Minister will not broaden this out to look at the whole area of advertising. It is a multimillion euro industry. I think €38 million was spent last year, and a lot of that is used in a misleading fashion to target young people in particular and to link youth, sport and quality of life in a misleading way. That type of promotion and advertising should be immediately subject to the Minister's regulations. If he is serious about introducing measures urgently that will deal with the problem of excessive consumption of alcohol, I would like him to include such regulations.
I agree with the intent behind this amendment. There is a need to attenuate greatly the advertising of alcohol. It is disgraceful to see some advertisements on television which promote certain alcohol brands by making them sexy and socially acceptable and effectively implying that if one drinks a particular type – whether it is shots or small measures with very high alcoholic content – one can gain in such qualities. At the end of the day they have the opposite effect. After those drinks are consumed there is a depressing effect, as we all know to our cost at some stage during our lives, and it does—
Who is the Deputy talking about?
It does not in any way help or assist in improving one's social or sex life. Well, maybe not. I noticed in the newspapers recently that a new drink is being promoted, and the chairman of the health committee had an article in a newspaper insisting that this drink, Roxxoff, no longer be allowed to be sold in bars. There is an intention to market it at this point in time, and I would be opposed to the marketing of such a product.
I must try one of them.
I am sure anything like that will help and assist the Deputy. Deputy Deasy has included exemptions in this amendment. One of the exemptions is for publications published abroad and containing advertisements which it was not economically viable to publish in Ireland. Surely, however, if a publication published abroad was completely full of drink advertisements and came into this country, there is no doubt that it would not be viable in Ireland with no advertisements in it at all. There is a need to change the amendment.
Subsection (2)(f) is interesting. I do not know whether there is a typographical error in that paragraph.
It states that "the publication is not produced solely or mainly for the purpose of promoting the smoking . . . " It is interesting that the word "smoking" is used. I am totally in favour of banning smoking in bars.
The Labour Party spokesperson on justice, Deputy Costello, together with myself and others was recently involved in investigating various licensed premises in areas where no smoking was allowed. It was a pleasure to sit down and imbibe in areas where one was not surrounded by smoke and did not have smoke in one's eyes, ears and hair. It is a pleasure to drink in such an environment. Despite what ardent smokers say, a smoke-free environment will improve the ambience and enjoyment of the leisurely drink to which we in Ireland have become accustomed in pubs and hotels. However, I understand this is a matter that comes under the sphere of influence of the Minister for Health and Children rather than the Minister for Justice, Equality and Law Reform. I put down a marker that I would support any legislation the Minister for Health and Children might introduce on the attenuation of the advertising of alcohol.
As the Minister for Justice, Equality and Law Reform said on Committee Stage, I do not see anything wrong with advertisements which claim that Guinness is good for you or wine is €9 a bottle in Superquinn and €11 in another establishment. There is a need for people to be able to market their products in a sensible and reasonable way that will not in any way take advantage of young people. Most television advertising takes advantage of young people, which I oppose.
I agree with most of the sentiments expressed by Deputy Ardagh. I agree with limiting the advertising of drink products. I am the last person who could speak with authority on this subject because I have never taken a drink in my life. As a licensee, I have observed that people who drink pints of Guinness or Budweiser seldom, if ever, get into difficulty compared with some young people, in particular, who drink shorts and get into great difficulty and create enormous problems for themselves at a young age.
On the amendment, an enormous amount of kudos is due for the train of thought behind its drafting, on which I congratulate Deputy Deasy. However, I must pay tribute to the enormous contribution Guinness has made to sponsoring advertising for many activities, particularly sports such as hurling which are good for people. When we were playing at home for the county – not that we achieved very much – we were told that the greatest gift one could give one's body was to ensure it was fit because when one had a fit body, one had a fit brain and when one had a fit brain, that gave one confidence and when one had confidence, one moved mountains. That is what we were taught. It would defy logic – as my colleague behind me would know because he played for our country – to put a pint of Guinness into one's body after training for two hours.
Deputy Glennon is shaking his head.
That is why people like me are still pioneers today and in more than one way. Huge kudos is due to Deputy Deasy for addressing the advertising of shorts and other alcohol products targeted at young people.
Smoking should be banned immediately anywhere food is consumed as a first step. Smoking is absurd and goes completely against common sense. Having smoked 50 cigarettes a day at one time and ended up in hospital for some time as a consequence of the effects of smoking, I have enormous experience at that level. One has a great quality of life when one does not smoke. Smoking can damage one's health and reduce the quality of the last ten years of one's life. I support any measure to ban smoking in the long-term and, in the short-term, smoking should be banned immediately where food is consumed.
I, too, am grateful to Deputy Deasy for tabling this amendment. The issue he raised is important. I am not disposed to accepting his amendment for a number of reasons which I will outline. The point about the European Commission is genuine. It would not be possible for me to accept this amendment and bring it into law without infringing European law. I would have to notify the Commission of an intention to do that. That is probably the most technical of the reasons.
I agree with what Deputy Ardagh said. I do not find it offensive to be told that I can buy a particular bottle of wine in a particular supermarket. Such advertising does not worry me. Neither does it worry me that Budweiser sponsors the Derby. I do not believe anyone would infer that if one drank Budweiser, one would be able to ride a winner at the Curragh. I enjoyed Budweiser's hospitality on that occasion. I do not think Budweiser was implying that any prowess of mine, be it sexual or athletic, would be enhanced by consuming its product on the occasion, although maybe as it was the sport of kings, there was an implication that drinking its product would be a passport to majesty of some kind.
I also make the point that the consumption of alcohol is a big industry. To bring in new products, one must advertise them. They cannot be hidden away and not advertised. Advertising will always be with us in some shape or form. There are obvious implications and Deputy Deasy's amendment attempts to deal with some of these regarding the print medium and transnational circulation, but there are others in the case of television advertising. British television and satellite stations carry spirit advertisements while RTE and TV3 do not. We can make all the laws we like, but it is a bit like King Canute, can we actually enforce them?
It is appropriate to draw this matter to the attention of the Minister for Health and Children, Deputy Martin, and to ask him to consider whether he can regulate television and press advertising and other promotional activities directed towards young people, in particular, by way of regulations. I do not have the health analysis, the Civil Service support machine or the policing mechanism to enforce an advertising regime of this kind. I cannot go to television stations and sit looking at advertisements to decide whether they correspond with some particular provision.
As regards the notion that alcohol enhances one's sexual prowess, I remind Members of the scene in Macbeth in which the porter says that drink provokes the desire, but takes away the performance. More Shakespeare might be something we should consider in that context.
It is a bit like the Progressive Democrats.
In or out of the bar.
While I am genuinely grateful to Deputy Deasy for tendering this amendment and know he intends to push it to a vote, my inclination is not to accept it because I do not think it is sufficiently carefully drafted.
An Leas-Cheann Comhairle
As it is now 10.30 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Justice, Equality and Law Reforms, and not disposed of are hereby made to the Bill, that Fourth Stage is hereby completed and the Bill is hereby passed."
Ahern, Michael.Ahern, Noel.Andrews, Barry.Ardagh, Seán.Aylward, Liam.Blaney, Niall.Brady, Johnny.Brady, Martin.Brennan, Seamus.Browne, John.Callanan, Joe.Callely, Ivor.Carey, Pat.Carty, John.Cassidy, Donie.
Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cregan, John.Curran, John.Davern, Noel.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Ellis, John.Finneran, Michael.Fitzpatrick, Dermot.Gallagher, Pat The Cope.Glennon, Jim. Hanafin, Mary.
Haughey, Seán.Hoctor, Máire.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kelly, Peter.Killeen, Tony.Lenihan, Brian.Lenihan, Conor.McDowell, Michael.McEllistrim, Thomas.McGuinness, John.Moynihan, Michael.Mulcahy, Michael.Nolan, M.J.Ó Cuív, Éamon.Ó Fearghaíl, Seán.O'Connor, Charlie.O'Dea, Willie.
O'Donnell, Liz.O'Flynn, Noel.O'Keeffe, Batt.O'Malley, Fiona.O'Malley, Tim.Parlon, Tom.Power, Peter.Power, Seán.Roche, Dick.Ryan, Eoin.Sexton, Mae.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Wallace, Mary.Walsh, Joe.Wilkinson, Ollie.Woods, Michael.Wright, G.V.
Allen, Bernard.Boyle, Dan.Broughan, Thomas P.Bruton, Richard.Burton, Joan.Connaughton, Paul.Connolly, Paudge.Costello, Joe.Crawford, Seymour.Crowe, Seán.Cuffe, Ciarán.Deasy, John.English, Damien.Enright, Olwyn.Ferris, Martin.Gilmore, Eamon.Gogarty, Paul.Gormley, John.Harkin, Marian.Hayes, Tom.Healy, Seamus.Higgins, Michael D.Hogan, Phil.Howlin, Brendan.Kenny, Enda.Lowry, Michael.McCormack, Padraic.McGrath, Finian.
McGrath, Paul.McHugh, Paddy.McManus, Liz.Mitchell, Olivia.Morgan, Arthur.Murphy, Gerard.Naughten, Denis.Neville, Dan.Noonan, Michael.Ó Caoláin, Caoimhghín.Ó Snodaigh, Aengus.O'Dowd, Fergus.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Pattison, Seamus.Penrose, Willie.Perry, John.Rabbitte, Pat.Ring, Michael.Ryan, Seán.Sargent, Trevor.Sherlock, Joe.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.Wall, Jack.