I shall only take the clauses of this Bill in reference to which amendments have been put down. However, perhaps it would be as well if I were to take the sections one by one, so that if any Senator wishes to make any observations on any particular section with a view to proposing an amendment or otherwise he will have his opportunity.
INTOXICATING LIQUOR BILL, 1924—REPORT.
With regard to Section 2, some suggestion came from myself with regard to the words "in which the sale usually takes place," and the suggestion was made that it might be changed so as to make it apply "to other than the part which is duly licensed for the sale and consumption of drink." It may raise a great deal of litigation and criticism as to what is the meaning of "a place in which the sale usually takes place." Is that confined to the actual bar, or does it extend to the adjacent snuggeries, parlours and to the adjoining rooms?
I discussed that with an official of the Ministry who informed me that he had looked into the matter, and that he found that in many cases a sitting-room upstairs was actually part of the licensed premises, and that, therefore, it would make it impossible for a publican to entertain his friends in the sitting-room. That is not intended and, therefore, I did not put down the amendment. My opinion now is that the clause as it stands really achieves what we are endeavouring to achieve.
That, of course, would get rid of the suggestion of putting in the words "Licensed premises." I do think it would be very desirable to define those words, "in which the sale usually takes place," a little more accurately. If you say, "the part used in direct connection with the sale and consumption."
The suggestion of an amendment on the Committee Stage was considered, and it was thought to be rather difficult to make a suitable change. It would be a question of fact in each particular case as to where the sale usually takes place. The idea of the section is, of course, to ensure that it would remain possible for the publican to entertain a guest, say, in his drawing-room, or any place like that, but that he could not supply drink to him in a place that is ordinarily used in the ordinary custom of the shop. I am afraid it would be simply a question of argument on fact in each case.
I beg to move amendment No. 1:—
To delete in lines 47 and 48 the words, "and before it is consumed."
What exactly is the nature of this amendment, Mr. O'Higgins?
This amendment was put down to meet a suggestion made by Senator Linehan. On the Committee Stage of the Bill, Senator Linehan had an amendment to add at the end of Section 8 the words: "Provided that when the intoxicating liquor is consumed before it is paid for without the consent of the licence-holder he shall not be guilty of an offence under this section." I explained that the amendment could not be accepted, and it was withdrawn. You, sir, suggested the insertion of some such words as "provided that no licence-holder shall be convicted of any offence under the section if he satisfies the court that the supply on credit took place without his privity or consent." I undertook to consider the matter and to see what amendment to the section could be made to deal with Senator Linehan's point. I am afraid that the wording suggested by you, sir, would seem to give a form of defence to the licence-holder which in practice would render the section nugatory.
It certainly would be very difficult to get a conviction, even where an offence in fact had been committed. I am advised that the deletion of the words "and before it is consumed" in lines 47 and 48 will meet Senator Linehan's point sufficiently without making the section difficult of application in practice. It will be observed that the section will then prescribe that the liquor must be paid for at the time at which it is supplied. The time of supply is a sufficiently broad term to give the licence-holder a fair chance of complying with the section, and if his defence is that the consumer departed without paying, it will be for him to convince the court of that, and I have no doubt that in practice the court will be able to form a judgment whether the licence-holder was guilty of an offence or not. Certainly, the amendment now suggested will prevent the hardship complained of by the Senator, that it will be necessary to demand payment before the consumer's glass is actually filled.
The amendment meets the situation well. Are you satisfied, Senator Linehan?
There is an amendment standing in my name which reads:—
(a) To delete in sub-section (4) the words "person over the age of fifteen" in line 47 and to substitute therefor the words "male person over the age of sixteen years, or female person over the age of eighteen." (b) To delete the words "person over the age of fifteen" in line 51, and to substitute therefor the words "male person over the age of sixteen years, or female person over the age of eighteen."
I do not propose to move this amendment if the Senate gives leave to withdraw it. I discussed the matter with an official of the Ministry, and I am satisfied that for administration purposes it is better leave it as it is.
Perhaps the Minister would explain the number 47; what does it mean? It sounds like a brand.
It is the number of the Act. The explanation of the amendment is that the Expiring Laws Bill, which comes before the, Seanad to-day, provides for the continuance of this Act of 1902 for another year. The Intoxicating Liquor provides that the Act shall be permanent and it is certain now that the Expiring Laws Bill will be law before the Liquor Bill and, therefore, the amendment is necessary.
I propose to substitute for the word "shall" in the second last line of this clause, the word "may." I want to give some jurisdiction to the justices in this case, and I urge upon the Minister to change that. We hear a great deal of conversation about the sanity of the justices, and as there are a great many local considerations to be taken into account, I think it ought to be left to the justices to decide whether they shall record a conviction upon the licence, or whether they may exercise their own judgment and decide upon the matter. That, to my mind, is a very simple thing. I think it should be left to the consideration of the justices themselves and that they ought not to be compulsorily bound to record everything on the licence.
The record of offences which, if the Bill is passed in its present form, must be recorded is set out in the First Schedule. They are not minor or trivial offences. They are five in number, and it is because I did advert to certain local circumstances which the Senator speaks of that the word "shall" appears in the Bill instead of "may." We are deciding to relieve the justices of that particular discretion which might prove an invidious discretion in the performance of his duties in his area. It is a straighter and a fairer thing to say that in the abstract, that certain serious convictions in connection with the Licensing Laws shall be endorsed. If in the application of that in any particular case owing to a technicality or otherwise the application presses harshly, there is an appeal provided to the High Court, and the High Court can say whether, in regard to the licence which has been endorsed and which has been ultimately cancelled as a result of the Act, there is anything improper or unfair, or whether the breach can be described as a minor one or a technicality. But if you simply place upon the justice the discretion of saying whether a particular conviction shall be recorded on the licence, then you subject him to a great deal of unpleasant local pressure of one kind or another, which ought not to be the case. We, surely in the Dáil and in the Seanad, ought to be able to make up our minds whether we regard an offence as a serious offence or not; whether we pass a law with a view to its being kept or to its being broken, and whether if it is broken it is not a proper thing that the fact should be recorded upon the licence of the licence-holder.
When we want justices to adjudicate upon a certain thing we should not make iron-bound rules for them. There are a lot of circumstances that they, in hearing the case, can take into account. The appeal the Minister speaks of is only for the third conviction, when it is a matter of life and death for the man whose case is being considered; I say it is only reasonable to put in "may" and to give the justices a certain latitude. Surely when we appoint our justices we have every confidence in them, and it should be left to them to decide whether they will record a conviction on the licence or not. There are a great many extenuating circumstances in a great many cases, and I do not think that we should put compulsion upon the justices. We may as well have automatic machines as justices, if they are not allowed to discriminate and judge between one case and another.
Amendment put and negatived.
This amendment, together with the succeeding amendment in sub-section (3) to delete in line 16 the figures "1924" and to substitute therefor the figures "1925," is based upon the recognition of the unlikelihood of this Bill becoming law in the current calendar year, and the change in the title is necessary.
Before that amendment is formally put I would like to point out that if this Bill is taken in its Final Stage to-day and returned to the Dáil it seems a quick assumption that it cannot become law this year. Possibly some way could be found in the event of circumstances forcing it that a consequential amendment could be inserted by either House.
I am rather in a dilemma, because——
I think it would be wiser for you to fall in with the suggestion made by Senator Douglas, because I do not see any real reason, in view of the Stage which the Bill has reached, why it should not be disposed of before the adjournment. But if that expectation turns out to be wrong, when it reaches your House for its final Stage you could insert this, I am quite certain, by arrangement, that is, as consequential. Of course, on the other hand, if you put it in now and it turns out that the Bill is disposed of before the expiration of 1924, you can alter it again, but I think the Senator's suggestion is the wiser one. When are you going to take this in the other House?
If it passes here to-day it will come on in the other House during the week.
Then you would know its fate at the end of the week, and if anything happened that would render necessary this change that you now propose, I am sure that the Seanad would meet you in making the change.
Very good, sir. I will not move this amendment.
In that connection, perhaps I might remind the Minister that Standing Orders were inserted as a result of a meeting of the Joint Committee on Standing Orders of both the Seanad and the Dáil, making it possible for consequential amendments to be inserted. This would obviously be a consequential amendment and could be inserted.
If you were to pass this now it might embarrass you later on.
This was an amendment that was put down for the Committee Stage and withdrawn in order that it might be further considered. I have discussed it with the Minister and I am in a certain amount of difficulty. I am inclined to ask leave to withdraw it. I should like to state that as the Bill stands at present, I have no desire to move this amendment, but if, as a result of any unfortunate accident, some future changes should take place in the Bill, I would be very desirous of moving it, but I am not quite sure whether it would be regarded as consequential or not. However, I have thought over it; I do not see any way out, and I think the wisest thing to do, on the whole, would be to ask leave to withdraw it.
In view of the full discussion that this Bill has received, and in view of the rapid approach of the end of this Session, perhaps the House might consider it desirable to pass it now.
I move that the Standing Orders be suspended to enable the Final Stage of the Intoxicating Liquor Bill, 1924, to be taken.