I welcome the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, to the House.
Intoxicating Liquor Bill 2003: Committee Stage.
I move amendment No. 1:
In page 6, subsection (1), line 10, to delete "includes –" and substitute "includes unreasonable behaviour which is so likely by reason of the fact that the behaviour constitutes or includes one or more of the following behaviour –".
We are seeking to amend the definition of disorderly conduct in order to make it clear. At the moment it sets out a general principle of unreasonable behaviour by a person, having regard to the circumstances likely to cause injury, fear or distress to any person. It then goes on to list five particular circumstances, most of which are self evident and uncontroversial. They include, for example, "quarrelsome or insulting behaviour". It is not clear whether the test of reasonableness, or unreasonable behaviour, applies to those five circumstances listed in 2(1)(a) to (e).
The implication of the way in which the definition is formulated suggests that it is not subject to that test. It suggests that quarrelsome or insulting behaviour is of itself unreasonable, and likely to cause injury, fear or distress to any persons. We seek to amend the definition of disorderly conduct in order to ensure and make clear that the requirement of unreasonableness is also required in the case of the five listed incidents.
The present definition states:
"disorderly conduct" means any unreasonable behaviour by a person on licensed premises which, having regard to all the circumstances, is likely to cause injury, fear or distress to any other person on the premises".
It must be that it is in the light of all the circumstances that it would be likely to cause these things. For instance, in the boisterous aftermath of a football match something might not amount to disorderly conduct, whereas if it was a quiet afternoon's trading and a person was shouting and roaring at the television it might turn out to be disorderly and likely to cause harm. We must bear in mind that the District Court judges are reasonable and must have regard to all the surrounding circumstances before this particular condition is met.
That is one meaning for disorderly conduct. It is extended to mean all the other things included in paragraphs 4(1)(a) to (e) in the definition. The proposed amendment suggests including “quarrelsome or insulting behaviour”. There can be occasions when this does amount to disorderly conduct. The running of a bar or a pub – people here are more experienced in this matter than I am – is a skilled occupation requiring an experienced manager. Different approaches must be taken to situations, depending on the circumstances. On a quiet occasion, behaviour which would not be noticed on another occasion could amount to disorderly conduct.
I am trying to strengthen the hand of the licensee in these matters. Licensees should have a greater capacity to remove people, to bar them or to ask them to leave the premises. I want to make people understand that they go into pubs to drink and that the management lays down the policy and if, in those circumstance, behaviour is disorderly they can be asked to leave. This is what I seek to bring about.
I do not want to detain the House because where the Minister and I differ on this matter is really down to the drafting of the definition. As currently drafted, the test of reasonableness in all the circumstances effectively does not apply to the subsequent definitions. As the definition is currently formulated, one can be quarrelsome or boisterous in the aftermath of a match and by virtue of that fact be deemed to be disorderly. I do not think that is what the Minister intends, but that is what comes across in the legislation.
The amendment includes "unreasonable behaviour which is so likely by reason of the fact that the behaviour constitutes or includes one or more of the following behaviour" to cause injury, fear or distress. Why should conduct causing damage to property have to be contingent on its being likely to cause injury, fear or distress to any other person?
Virtually all of those, from (a) to (e) would automatically be likely to cause injury, fear or distress to people. The only two words in which one might find some leeway as to how they are defined are “quarrelsome” or “insulting” behaviour. For example, someone might be having a disagreement in a loud voice, which would not necessarily be such as would cause fear or distress to anyone else. It is not difficult to imagine circumstances where that might happen. This refers only to the word “quarrelsome”.
This Bill is intended to operate until I introduce the major consolidating Act in 2004. If between now and then I think the law needs to be changed, I will do so. The phrase "quarrelsome", as it appears in the Bill, is in the existing law. It was not thought up one afternoon and written on the back of a beer mat in the Department of Justice, Equality and Law Reform in recent times.
Say the word.
If it was so devised, it took place 131 years ago.
The purpose of this section is to save the existing law and make it more workable. Quarrelsome behaviour is already an offence in a public house. Therefore, I am not introducing some new standard or draconian measure.
The law, as applied by the sensible district justices, to whom the Minister referred, already applies the test. I ask that we make it explicit that the reasonableness and in-all-circumstances tests apply to "quarrelsome" behaviour. The Minister and I actually agree on this matter, but I urge him to do something about it at a later stage in this House or elsewhere.
I move amendment No. 2:
In page 6, lines 25 and 26, after "person" to insert "is incapable or".
We must carefully examine the tests of the terms "drunkenness" and "drunken". It struck me that one might be of the reasonable apprehension that a person was intoxicated and also be of the view that the person would not be a danger to himself or herself or others, but would be utterly incapable of doing anything to himself or herself or others and should not under any circumstances be served any more drunk. I am concerned that the interpretation of the term "drunken" would require a person to conclude that a person might endanger himself or herself, whereas a person could be completely incapable without there being a risk of endangerment.
The amendment seeks to change the provision in order that it should read, "A drunken person means a person who is intoxicated to such an extent as would give rise to a reasonable apprehension that the person is incapable or might endanger himself or herself or any other person in the vicinity and "drunk" and "drunkenness" are to be construed accordingly". The amendment is self-explanatory and seems a sensible suggestion in this prohibitive legislation.
I have some sympathy with this amendment because drink has a different effect on different characters of people. Some get aggressive, while others lie back and fall asleep. An argument could be made that if the person was not considered to be a danger to himself or herself or others, although he or she might not be able to sit up straight – and people can get messy but may not be endangering anyone else or himself or herself – it comes down to the fact that he or she has consumed too much alcohol which has given rise to their being drunk. We do not want to go around pubs with breathalysers. However, if we gave a little more scope to the licensee, where someone might be no danger but not a nuisance, the publican might deem that he or she has had sufficient drink and should vacate the premises. Perhaps the Minister could examine this issue, if not now, then on Report Stage.
I support Senator O'Toole's amendment. Some people just go asleep and if someone is out of his or her mind with drink and asleep in the corner of the pub, surely he or she is a drunken person too.
In this context, we are dealing with people committing an offence of being drunk, but we are also dealing with the question of the publican committing an offence by permitting a person in this state to be on the premises. If anyone thinks they are doing a favour to publicans, they may be doing the exact opposite. The benign, smiling fellow snoozing in the corner may, if I extend this definition, turn out to be the occasion of a prosecution when he is doing no harm to anyone. I accept Senator O'Toole's point that he should not have been given drink to bring him to that point. However, bearing in mind that closure orders are floating around in this context, gardaí do not want to get involved. I am concerned with public order and the like and I do not want to close a pub because some fellow falls asleep in the corner and the gardaí cannot arouse him from his slumbers. I do not want to go down that road unless I am forced to do so.
Senator O'Toole's phrase "incapable" begs the question – incapable of what? The Senator may think the term "incapable" is a free-standing adjective, however, I do not think it is. The first question that would be asked of me if I left this place having accepted this amendment is, "What does this mean?". Does it mean incapable of standing, sitting, speaking or keeping one's eyes open? If someone got to the point where he or she was incapable of standing, he or she would be a danger to themselves and would satisfy the other proposition. On the other hand, if they are quietly ensconced in a corner of the pub, having had one too many, it is not my great priority to get at those kinds of people. I and the public are more concerned with someone who is going to hit someone, damage someone else or damage him or herself or be so incapable that, in the cases of young men, they could be mugged or, in the case of young women, they could be the victims of sexual assault. I do not want to widen this definition to increase the liability of publicans to be prosecuted for having the old josser in the corner falling asleep over his pint. That is not what I intended to outlaw.
I have listened to the Minister and bow to his superior knowledge on the definition of "incapable", which I mistakenly understood to be a well-established and understood legal term. It is obviously just a journalistic term. What concerns me is how section 4 and others sections are interpreted. Section 4 provides that a licensee shall not supply or permit any person to supply intoxicating liquor to a drunken person or permit a drunken person to consume intoxicating liquor or permit drunkenness to take place in a bar or admit any drunken person. Section 5 provides that a person shall not purchase intoxicating liquor for supply to or consumption by a drunken person and so on.
What worried me about the definition was the interpretation of the test. There is well-established experience in the courts that where there is a test – in this case a reasonable apprehension – somebody has to adjudge and conclude that in his or her considered view a person is drunk. The question then arises what does it mean for a person to be drunk. It could be argued to mean that a person sleeping benignly in a corner, having consumed two gallons of porter, is not drunk under the terms of legislation. There is a problem. While I accept the Minster's argument on the wording of the amendment, the evidence of a garda in court could be stitched up by a smart member of the legal profession. I am more worried by this aspect.
I have explained that the terms "drunk" and "drunkenness" are to be construed according to what is meant by the term "drunken person". That may assist a little. When I presented the heads of the Bill to the Oireachtas joint committee, I provided a different definition which included the words "significant impairment of intellectual ability" and such like. That was a cause of much disquiet.
The members of the committee did not like the IQ test aspect.
That is correct. Academics said I would have to administer breathalysers and such like. The definition of "drunken person" is derived from the definition of the term set out in public order legislation. If a person is arrested for being drunk and disorderly, that test of drunkenness will apply. In view of this, I would prefer to maintain the definition.
I accept the Minister's point and will withdraw the amendment.
I move amendment No. 3:
In page 6, lines 26 and 27, to delete "in the vicinity".
I am at a loss to understand the reason the words contained in lines 26 and 27 are included. Perhaps I am missing a point but the words "in the vicinity" are not germane to the definition. It almost suggests that if it was considered that a person was to behave in a certain manner, it would be acceptable, provided it occurred beyond the vicinity. The wording implies a leeway not contemplated by the Minister. I recognise that the publican should and cannot be held responsible for something a person might do beyond his or her premises. That would be wrong. However, I fail to see the reason the test should be based on the possibility that a person might do something in the vicinity. No reasonable person would accept that is a proper or necessary provision. It adds nothing to the Bill, nor does it address the Minister's concern.
I will accept the amendment.
I thank the Minister.
I, and those I represent, welcome the Bill which is excellent legislation in many respects, although we would be concerned about a few aspects. On the question of drunkenness, we would like to see stiffer penalties applied to those who are drunk. We had a dreadful occasion recently in Swinford where people visiting a pub refused to leave when asked. They wanted more drink but were refused. The publican is caught in such circumstances. If he or she serves drink, he or she breaks the law but if he or she refuses to serve because he or she considers the patrons may have taken too much drink when they say they have not, he or she will be in trouble with the Equality Authority. The penalty should be increased from €300 to perhaps €1,000.
Senator O'Toole referred to disorderly behaviour within the vicinity of a pub. Where a number of pubs are grouped together, the committal of a crime by a person within a few yards of one premises does not necessarily mean he or she has been in it. It may be possible to prove it in court but that is an expensive business. CCTV cameras are installed in most venues, which means that if a person had been drinking somewhere else but was at the centre of a problem outside a pub, the publican could be in trouble. Apart from these concerns, this is a good Bill. We are happy the Minister is dealing with the problem of drunkenness, including those who refuse to leave a pub when asked and cause a row when they are refused further service.
I welcome the Minister's indication that he will accept the amendment.
When a person is in a drunken state, he or she can be very contrary and obstructive and will generally not accept he or she is drunk nor take kindly to being asked to leave a premises. He or she may have been getting drunk but not causing any trouble, yet when asked to leave, he or she could become troublesome. How does the Minister envisage publicans coping with such individuals? How long would the publican wait for the arrival of the Garda if he or she decided to call for assistance in effecting an eviction? Does the Minister consider that publicans will be able to enforce this measure?
Section 6 deals with this aspect. A drunken person is required to leave a licensed premises on being required to do so by the licensee or a member of the Garda Síochána and shall not seek entry to the bar of a licensed premises. Sections 5 and 6 create criminal offences punishable in accordance with section 5(2) and section 6(3) and arrestable by a member of the Garda Síochána.
As matters stand, the licensee of a premises faces a difficult situation where somebody becomes inebriated and is requested to leave. It is one of the reasons we have monopolies, pub licenses and the present law. It is not an easy task. Children cannot carry it out. Those of infirm psychological constitution should not be behind the bar of a pub because this kind of situation sometimes requires the licensee to lead people out of the premises.
The Bill is centred on the proposition that it is an offence for somebody to get into a state of inebriation and attempt to enter a pub or refuse to leave a premises. A legal consequence of it being an offence of that kind is that a publican is entitled to refuse admission where he or she believes the consequence of allowing a person to enter the premises would be that he or she would allow the person to commit an offence. It strengthens the hand of the publican in respect of refusing admission. If sections 4 to 7, inclusive, are considered together, it will be seen that they are designed to strengthen the hand of licensees to maintain order in their premises.
Although section 4 imposes a liability on licensees not to permit drunkenness on their premises, that is again designed to strengthen their hand. It means that a person behind the bar can tell a patron that if he or she serves another drink, he or she will not be able to keep his or her pub open. He or she would be able to tell the patron that if a garda saw him or her in his or her drunken state, he or she stands to have his or her pub closed for a day, or whatever. In those circumstances, these provisions also strengthen the hand of lounge staff and the employer when he or she tells the staff that if they serve drunk people when, or to the point they are drunk, it is a serious matter to be dealt with seriously by the licensee as an employer. This will strengthen the hand of young lounge staff when confronted with a patron they consider to be in trouble. They can say they may lose their job if they get another drink. If we talk about 10 shillings under the 1872 Act, there will be no teeth in the law at all. This effective provision is intended to give the law teeth.
Amendments Nos. 4 to 8, inclusive, are related and may be discussed together, by agreement.
I move amendment No. 4:
In page 7, subsection (1), line 19, to delete paragraph (c).
When I spoke to this legislation last night I was very agitated, but the thought struck me that I would hate people to think I was approaching this matter from an academic perspective. Not only do I enjoy a bar, but I learned well the way in which to tap a barrel of Guinness with a metal tap and a wooden mallet before I was a teenager. I have served my time in that territory and I have had to make judgments on fair days in Dingle. I am not speaking from a purely intellectual or academic viewpoint.
There is a requirement and a test on the publican in this Bill which is unfair, though I am sure it was never intended to be so. The provisions in sections 4(1)(a) to 4(1)(d) follow a particular line. Subsection (a) provides that the licensee shall not supply intoxicating liquor or permit any person to supply intoxicating liquor to a drunken person or to any person for consumption by a drunken person. It is very clear. Subsection (d) provides that the licensee shall not admit a drunken person to a bar. It is black and white inasmuch as anything can be. It is very difficult to comply with subsection (c), which provides that a licensee shall not permit drunkenness to take place in a bar. The Minister is asking someone to make a judgment that a person's next drink will make them drunk, but we have already decided what constitutes drunkenness.
Section 4(4) provides that the licensee may prove all reasonable steps were taken to prevent drunkenness taking place, which is very reasonable. I imagine it was the intention in section 4(1)(c) to make the same provision whereby a licensee would be required to take reasonable steps to prevent drunkenness taking place. It may well be impossible to prevent drunkenness. It is a bit like virginity. Can one say a person is a little bit drunk? At what stage is sobriety gone? When are we over the line? Things do not work that way, which is why section 4(1)(c) should be deleted and replaced with the wording used in section 4(4) which is much closer to achieving the Minister's ends. I believe that in section 4(1)(c) the Minister wishes to ensure that a licensee takes all reasonable steps to prevent drunkenness on the premises. The form of words used further down would fit in very well there. The Minister has already used them and I would like to hear his views on the matter.
My other amendments are consequential on the first. Amendments Nos. 4 to 6, inclusive, are aimed at achieving the same end. I would be very interested to hear Senator Bohan's view on the matter. Instead of indicating to the licensee that it is a crime to permit drunkenness to take place in a bar, which is easy to say but difficult to implement, it would be fairer to require that he or she takes all reasonable steps to prevent it. It would be fairer on the licensee and easier to adjudge. It would be more reasonable in every way.
Section 4 places responsibilities on the licensee, but I am concerned that we are not providing formal recognition of the licensee's right to remove a person from a premises. While the right was provided in section 18 of 1872 Act, according to this legislation, the most a licensee can do is call the Garda.
Sections 6 and 7 allow the licensee to remove a person.
Allow Senator Minihan to continue without interruption. Senator O'Toole will have an opportunity to respond.
There is no formal recognition of the right of removal provided for in section 18 of the 1872 Act. Regardless of the restraints placed on the licensee in terms of what he can or cannot do under law, it would be beneficial if he had the formal right to remove a person from his premises. Like Senator O'Toole, I have served my time. I remember that when there was a bit of trouble in my grandfather's pub in west Cork, he had only to appear at the door and order somebody out and they would go. I realise times have changed, but the formal recognition of the right to remove existed then and I am concerned it is not repeated in this Act. I ask the Minister to comment on the matter.
The two amendments tabled by the Labour Party seek to make more or less the same provisions as those sought by the amendments of Senator O'Toole. They are phrased completely differently which is why I am not sure the effect of Senator O'Toole's amendments would be the one he intends. That is for the Minister and his officials to tell us.
On a point of clarification, I announced that the amendments were related and could be discussed together.
I accept that they are related. They deal with the same issue, though they approach it from different angles. I am happy to have the amendments taken together.
The Labour Party amendments seek to apply the reasonable steps mentioned in section 4(4) to all of section 4 rather than simply to section 4(1)(c). The problem arises from the definition of “drunken”. While the Bill defines “drunkenness”, to make it an offence to supply drink to a drunken person demands that the supplier knows the person is drunk and is a danger to himself or herself, according to the definition in the Bill. It is fair to say, as Senator O'Toole has pointed out, that one would not necessarily know that. If a person approaches a bar, an instant judgment must be formed as to whether a person is drunk to the extent that supplying him or her with drink is an offence. It will not always be terribly clear that is the case.
It is not unreasonable in those circumstances to assert that is a defence for a publican to prove he took reasonable steps. He should be provided with some defence, rather than, as appears to be the Minister's intention, subject to an automatic offence. As it stands, the section provides that if a person is proven to have been drunk, the publican has no defence.
I agree with the comments of Senator O'Toole. It is very difficult to prevent drunkenness on a premises. No sane publican wishes people to get too drunk, but if a person enters a premises sober to have a pint while minding their own business and not causing problems, where do you draw the line? When do you say he has had enough if he has done nothing wrong and insulted nobody? Nobody would go out of their way to make a person drunk and it would be a bit unfair for a publican to be charged with allowing someone to get drunk on his premises. It is something the Minister should examine.
We are in danger of tying ourselves in knots. I agree with Senator O'Toole's comments in relation to this amendment. In the case of a licensee who is unable to eject a drunken person and asks for the assistance of the Garda who arrive to find that person still on the premises, can the licensee be held accountable for having served drink to that person? Both the licensee and the drunken person could end up being charged. We are getting ourselves tied up in knots and I am not sure how it will be sorted out.
The essence of the Bill is probably the definition of drunkenness, something which has engaged the minds of the Minister and the Department for some time. We expressed ourselves reasonably happy yesterday with the definition in the Bill but the more information we elicit from the Minister in this debate, the more clarity there will be. If we are debating it here, it will obviously give rise to considerable debate among solicitors and barristers in the courts. Taking the definition to mean the person is a danger to themselves or others, it can mean a person who has become obstreperous in a pub, even to a limited degree. The definition would also apply if the person appeared to be so intoxicated that they were a significant danger to themselves from falling.
I have one concern about the definition. One could have a definition of a danger to oneself which would be compatible with the drink driving regulations. If somebody drinks three or four pints and they have a motorcar outside the door, could the court assume that the person was allowed to consume too much drink and become a danger to themselves under the definition? I look forward to hearing the Minister's comments in that regard. Does the definition need to be refined further? I am not a lawyer so I do not know. The more clarity we can bring to the legislation, the better.
A judgment call will have to be made by publicans and that imposes a significant responsibility on them. There is an onus on the House, therefore, to make the legislation as clear as possible to ensure that the judgment call does not have such wide parameters that they will be interpreted differently by district justices.
I look forward to hearing the Minister's response to Senator Terry's question as to whether the licensee would be incriminating himself by calling the police. Senator Minihan's concerns are covered by section 6 which gives the licensee the power to request a person to leave the premises.
But not to remove the person.
I will examine Senator Minihan's point. The law at present provides that if a licensed person permits drunkenness on a premises, he is liable to a penalty under the 1872 Act. The phrase "permitting drunkenness" is already in use. We are not dealing with a novel concept. Subparagraph (c), therefore, is an existing offence and the defence provided for it in subsection (4) is reasonable. It provides that if somebody comes across drunkenness on the premises, “It is a defence to prove that the licensee took reasonable steps to prevent the drunkenness concerned taking place”. That is a complete defence.
There are subtleties in section 4 which some of the amendments do not take on board. It is an offence for a licensee on licensed premises to supply drink to a drunken person or to any person for consumption by a drunken person or "(b) to permit a drunken person to consume intoxicating liquor” on the premises. There is a distinction between subparagraphs (a) and (b) and (c) and (d) which should be noted by the House. Subparagraphs (c) and (d) refer to the bar. This is of particular significance to hoteliers. If one is running a hotel and somebody returns drunk to the hotel, the hotelier cannot forbid the person to come into the hotel. He can allow the person on to the premises, bring the person to their room or even allow them into the residents' lounge to sleep off their condition.
Likewise, if somebody was found falling down drunk in a public house, it would be permissible for a publican, rather than throwing them out onto the street, to bring them to a room and avoid an offence in regard to the bar of the premises. A number of people from outside the House had asked if publicans would be throwing people out on the roadside in a state where they were a danger to themselves.
I am happy with the way the section is drafted. It is subtly drafted to distinguish between hotels and other premises and between bar situations and non-bar situations. It provides a defence for somebody who is accused of permitting drunkenness. The person can say: "I did not permit it; I run an operation which takes all reasonable steps to prevent this type of thing happening."
The law provides that a licensee need not personally administer or serve the drink. That is a cornerstone of the licensing law. The licensee, through the barman or other staff, is vicariously liable in criminal law if he serves somebody to the point of drunkenness. We should leave this as it stands. It will strengthen the hand of a licensee in relation to his staff to be able to say that he will be criminally liable if they misbehave and that he will take a serious view of it if they do not run an orderly pub in his absence. That will bring a measure of discipline and allow the publican to say to the lounge and bar staff: "This is a serious matter. The law has changed and the premises can be temporarily closed. I expect you, therefore, to be vigilant for drunkenness in the pub and not to serve drink to drunk people."
Furthermore, section 4(1)(a)(ii) allows a publican to withdraw drink from somebody if he forms the view that the person has consumed too much. If somebody has three pints in front of them and the publican considers that he has had enough, the publican can remove the drink. It would be a criminal offence for the publican to allow the person to continue to drink the alcohol in those circumstances.
The House should give credit to the parliamentary counsel for this provision. It is subtly drafted and distinguishes between different situations. The draftsman has taken on board the situation of the hotelier faced with guests tottering into the premises from the street. His duty is to keep them out of the bar and not to serve them more drink in the hotel. However, he need not put them out of the hotel and can, in this case, permit drunkenness in the hotel. He can allow the drunken person into his room to sleep it off or let him have a cup of coffee in the residents' lounge. He must be able to do that. It is not easy to draft this law and it cannot be done in a casual way. I am reasonably happy that this measure has been rigorously drafted.
I will consider the point made by Senator Minihan and see if I have created a new lacuna with regard to the power of publicans to remove people from the premises. I also do not want to create a licence for heavy handed security in pubs. We know the consequences of that.
I accept the points made by Minister. I had taken note of the subtleties of the defence. Having reflected on the points made, I will withdraw the amendment.
I move amendment No. 9:
In page 8, between lines 15 and 16, to insert the following new subsection:
"(4) The Court may, if it sees fit, refer a person convicted undersubsection (3) for alcohol abuse assessment and with his or her agreement, treatment if required.”.
People who get themselves into this sort of state, particularly those who are obliged to go before the courts for repeat offences, have possibly got a serious problem with alcohol. This is not really being addressed in the Bill. However, I realise that the Minister is trying to do something on a very practical level with this legislation.
Within accident and emergency units, we are now trying to ensure that more is done for people brought in out of their minds with alcohol than just trying to get them to sober up and treating whatever injuries they have suffered. An attempt is being made to get them to see alcohol abuse nurses, who try to humour and humiliate people into agreeing that they must have some sort of treatment and simply cannot go on as they are at present. It is a trifle depressing to think that people who have got into such a state as to end up before the courts – not once, but twice – will not be offered a solution to their problems other than paying a fine.
What I am attempting is a somewhat similar to what the Minister for Transport, Deputy Brennan, has attempted with penalty points. It is not just a question of fines, which, unfortunately, people are inclined to pay – even if they are hefty – because this may only happen to the person once every couple of years. If the amendment is accepted, people would, instead, be made to take some cognisance of their actions. We can, in other legislation, ask for psychological reports, etc., on such people, but I do not know if that is useful in this context. I do not know if the Minister contacted any addiction centres, such as that in Trinity or the Rutland Centre, regarding the best place in which and the best way to deal with people who repeatedly offend in such a way.
This is an awful problem because nobody wants these people rolling around the streets. I have spoken previously about my horror at the level of drink being taken by young women who do not seem to understand at all what it is doing to them physically. I am not a proud person, so if the Minister can bring forward a better wording at Report Stage, that would be absolutely fine. I hope that this legislation will be useful, but I would not like to dismiss such serious situations as people being out of their minds once, twice or three times and then paying fines without some attempt being made to try, as a society, to make them address their behaviour.
I support Senator Henry's amendment. It would provide an ideal opportunity to get treatment for somebody who comes before the courts. I am not sure whether that would be possible and I look forward to the Minister's response.
I am not trying to dilute Senator Henry's amendment, which is very useful, but I want to introduce another issue – advertising – which affects people's thinking about alcohol. I apologise for introducing the issue at this point, but I could not see any other opportunity to do so. I ask the Minister to tell us when he intends to address the whole issue of advertising of drinks. Will that happen next year when he will return to address this area?
I see considerable merit in the thrust of Senator Henry's amendment and I am glad that she is not pernickety about the exact wording or whatever. On foot of what she said on Second Stage, one of my officials attended a meeting of the strategic task force on alcohol this morning. The task force discussed the issue of responses other than just the fines imposed by the District Court, particularly for repeat offenders before the court, so that we do not simply wash our hands of them. People can commit one offence of being drunk and disorderly without anybody having to send them off for treatment or whatever. As a result of the discussion that took place this morning, we are exploring the possibility of devising a list of places where such treatment is available for circulation to members of the District Court.
Drunkenness offences are much more likely to occur in the context of the public order legislation, so the question arises as to whether we should attempt this in the context of the licensing law, the public order law or a sentencing powers statute. I am contemplating bringing proposals to Government, not for guidelines – I hate to use that word because it is misunderstood – but for a statutory statement of powers in respect of sentencing policy. There are a number of possible places where the Senator's proposal could be located legally. If we come to the view that it should be done in the context of the licensing law, then rather than attaching it to this particular area, I propose – in the context of the general revision in 2004 – to locate it in a new law where it would have effect, not just for this offence but for all sorts of licensing law offences.
I am grateful to the Senator for raising this matter. We are already taking this seriously to the point of complying with the substance of the Senator's argument by considering ways of bringing the District Court's attention to the options open to it in this area. It may be desirable to enshrine this principle in law in the first instance so that it will be brought to the attention of District Court judges in order that they will not simply stamp the conviction on to the charge sheet or summons and move on to the next business and that their attention will be drawn to the need to do something further. This is comparable to how, with some motoring offences, the need to re-sit the driving test has been introduced, rather than simply disqualifying people and letting them start all over again at the end of the disqualification period as if nothing had happened.
I ask the Senator to withdraw the amendment now on the basis of my statement that I am exploring a practical policy to get District Court judges informed on this matter and exploring where such a general power should be located. It does not do justice to the merit of the Senator's point to apply this power in respect of this particular offence and nowhere else with regard to drunkenness and intoxication cases coming before the courts. This is likely to represent a tiny minority of those cases. Drunk and disorderly charges are more likely to arise under the public order legislation. I venture to suggest that this particular offence will not be the most usual of offences.
We are already impressed by the Senator's argument and are doing something practical about it. We are looking for a place in which to incorporate into the law of the land some recognition of the need not to deal with repeat alcohol-related offences, in particular, as infractions of the public law and no more, but also to give an express nudge to District Court judges to do something further by making it a condition of a sentence, adjournment or whatever that the accused person should obtain treatment.
I thank the Minister for his reply. I see his point, but I wonder if what he is suggesting could not be incorporated into this and other Bills, if required. This legislation has received much public attention and I would not like the idea to go out that if people get drunk, they will just get a fine of €300 on the first occasion and €500 on the next. I would like there to be some sort of cognisance also of treatment.
The Minister mentioned the effect on people being told they would have to take the driving test again and the penalty points system certainly sharpened people up to a considerable degree in terms of the way they drive. I now keep an eye on the speedometer going through Donnybrook in case members of the Garda are out with their equipment trying to catch me.
I would be very grateful if the Minister looked at this matter between now and Report Stage, mainly because the legislation has already received a great deal of public attention and will attract more. It is just the sort of people at whom the Minister is trying to aim the legislation who will look at this. I thank the Minister for his reply and will withdraw the amendment. I hope he will have thought of something better by the time the Bill reaches Report Stage.
May I ask the Minister to respond to my question on advertising, please? I referred to the way in which advertising influences people to drink to excess and become disorderly.
The amendment applied to referring people for counselling.
It is a matter about which the Minister has spoken.
I will deal with the Senator's point when we come to deal with sections 20 and 21.
Do hurry up, please.
Senator Norris, I am running an orderly House.
That is a change.
Section 6 gives the power to the licensee or a member of the Garda Síochána to request somebody to leave. Is it clear that the licensee can or cannot delegate this power? In many of the very large pubs in Dublin the licence holder might not be on the premises at a given time. I presume the intention is that a senior member of staff will be entitled to ask somebody to leave.
It is a cornerstone of intoxicating liquor law, as I understand it, that the authority of the licensee is vested in his or her staff at any given stage and that he or she is liable for their actions as though they were him or her, if acting within the scope of their employment. For instance, if that was not the case, most of the law would be inoperable simply by virtue of the licensee being able to say he or she was in Majorca at the time and could not have committed any offence.
I accept that it makes common sense. I brought up the matter because the Minister specifically covered the point in the previous section by including the words "or permit to be served".
I have a text book here and will look up the point but I am fairly confident that I am correct.
I assume the reference was intended to cover the question of staff.
This is an important point and while there is not much that can be done about it, I would have to say that my colleague from the Labour Party has indicated something important. From experience of living in the north inner city I know that those pubs which have a resident landlord, or a landlord on the premises all the time, are almost invariably well run. Those owned by people who live in Liverpool or Manchester, or wherever, and put in proxies with the instruction to squeeze as much money out of them as they can are the ones where problems arise. We cannot do very much about this because we cannot compel landlords to be on the premises, or live over the shop. It is a pity but that is one of the dangers of the super-pubs, or boozeramas as I call them.
I move amendment No.10:
In page 8, subsection (3), line 35, to delete "(1) or (2)” and substitute “(2)”.
While this is a technical point, we want to clarify whether a new offence is being created. The section appears to create a new offence of engaging in disorderly conduct, presumably as defined earlier. Most of what would be deemed disorderly conduct is already an offence. The fact that it takes place in a pub is not particularly relevant. Are we creating a new offence of being quarrelsome? I have a horrible feeling that the Minister is going to tell me that it is already an offence to be quarrelsome but for the sake of argument are we seeking to make it so by this section?
In this amendment we are saying that a breach of subsection (1) would not be a new offence. While most of what would count as disorderly conduct is already an offence, we would be explicitly creating the new offence of entering or re-entering a bar if one had been asked or told to leave.
I regret that I am not disposed to accepting this amendment because its effect would be that it would no longer be an offence for a person to engage in disorderly conduct in a licensed premises. An offence would arise only if the disorderly person refused to leave or re-entered within 24 hours. One of the principal aims of the Bill is to address the problems of drunkenness and disorderly conduct. To accept this amendment would be to weaken considerably this important new section.
Is the amendment being pressed?
I do not intend to press it. Most of the offensive behaviour being covered in the Bill, and with which it is intended to grapple, is already an offence but this is creating a new offence of disorderly conduct and it strikes me that we are going further than we should be in that regard.
I move amendment No. 11:
In page 9, subsection (5), line 9 to delete "substantial".
We are trying to lower the bar somewhat in this amendment. Subsection (5) specifically allows the licensee to refuse admission if he or she thinks there is a substantial risk that the person would engage in disorderly conduct. Effectively, somebody is being barred. This gives the licensee legal authority to bar someone if there is a substantial risk. Perhaps we are setting the bar too high for the publican. If somebody has already been disorderly and is a known troublemaker, perhaps the requirement of "substantial risk" is too strong. That is the reason the amendment seeks to remove the word "substantial" and require merely that there be a "risk" that the person would engage in disorderly conduct.
I have an open mind on this but the word "substantial" is included because anybody availing of this can say there was a risk. If it is a tiny risk, is that to be a reason for refusing admission? It has to be one of substance. What worries me is that if we do not have something of substance, we might have a pretext whereby people would mask discriminatory behaviour by saying a person was convicted 30 years previously of a violent offence, or whatever, and say there was a risk. Obviously there is a risk but is it a mathematical one? Is it a real risk? The term "substantial" is designed to prevent people from engaging in a refusal on a pretext that there was a risk that somebody would misbehave. It has to be a substantial view.
The real question is whether one regards the fact that a person has a previous conviction produces a risk or sufficient risk for him – it usually is a man – to be barred. It would not be unreasonable for a publican to take the view that if somebody had been convicted in court of disorderly behaviour there was a risk that he would do it again. I would not be inclined to say such a publican was acting unlawfully if he barred him.
The Senator might take as an example somebody who was guilty of disorderly conduct. If all the publicans in his village barred him for life as a consequence, would that be a proportionate or reasonable thing for them to do ten years later? Would they still be able to refuse the person admission because he had beaten up a barman in another pub down the road and tell him that he would never be served in the town again? We have to be reasonable. The risk must be something of substance, not speculative or mathematical, or, to use the phrase used yesterday, "asyntotic to the zero axis."
Is the amendment being pressed?
I do not intend to press it simply because the practice reflects what the Minister intends, with which we are all in agreement but I wanted to run it.
The Equal Status Act also uses the phrase "substantial risk". Therefore, there is coherence.
I want to raise a brief technical point of information. Bills should be expressed in plain English, where possible. While I am aware that two negatives make a positive, why do we say, "it shall not be unlawful"? Why not say, "it shall be lawful", or is there some legal term about which I do not know? It is a simple matter, why not put it in the positive form?
It is a phrase used frequently in the licensing code that "it shall not be unlawful". I do not want to give the Senator an off-the-cuff answer as to whether saying something is lawful is the same as saying that it shall not be unlawful. It may be that someone would claim that they have authority to do something by virtue of one proposition. A double negative says only that something is not unlawful in the circumstances without prejudice to whether it is lawful in the first place. When I was Attorney General, there was a "plain English" drafting manual in gestation, and I presume that it has been produced. I do not know whether the draughtsman in the Attorney General's office draws that distinction. There are sometimes occasions when saying that something is not unlawful is not the same as saying that it becomes lawful to do it.
The two mean the same thing.
Perhaps the difference is that something is not unlawful because a law has not been passed making it unlawful but that certain things have been sanctioned by being passed into law and are therefore lawful, meaning that there is a grey area whereby something may not be unlawful but there is no positive law supporting the activity in question. Is that possible?
The Acting Chairman will presently rule me out of order for a totally irrelevant comment, but it is relevant. Perhaps she will recall that, in a previous incarnation on the Opposition benches, I mounted a sustained onslaught on the "in relation to" disease. There is a refreshing absence of "in relation to" in this Bill. I often wonder why the small prepositions cannot be used instead. I have found one instance, but they are becoming ever fewer, so perhaps the campaign is beginning to succeed.
Section 8 deals with disorderly conduct, and I made a point about that yesterday, comparing the fine for the licensee on the one hand and that for the culprit in the disorderly conduct on the other. The Minister might examine this question before Report Stage, with a view to introducing heavier fines for the individual. The first offence attracts a fine of €300, and a €500 fine for the second offence is far too small. Unfortunately, publicans will be confronted, and in most towns one will find certain characters who are troublemakers. I am not talking about alcoholics. In some instances, all they need before they start to cause problems is a few pints. The penalty imposed on them should be sufficiently severe to deter them, and €500 is not enough. I suggest changing paragraph (b), allowing judicial discretion to impose a maximum fine of €1,500. I would be happier with that.
Perhaps I might use this reflection on the section to fly a little kite. We were talking about people's behaviour and expelling them. Many people, in the two Houses and in the general public, are concerned about the behaviour of drunken people in accident and emergency units in hospitals. I wonder whether that might be covered by legislation. I do not think it is covered by any section of this legislation except, perhaps, by inference. We should examine it because of the enormous waste of time and resources and the prejudice to the health of people who suddenly become critically ill when the accident and emergency units are swamped by drunken idiots. There should be a quite strict little lesson for them. They should be severely fined or made to carry out community service or some such thing.
I say that in general terms, but I presume it is not really covered by this Bill. I ask the Minister to examine the possibility, for otherwise we will have a further huge waste of resources at a critical point for society when people are admitted in what should be an emergency. The vast majority of them are simply suffering from self-induced alcohol poisoning.
It would be totally irrelevant for me to comment on Senator Norris's totally irrelevant point, but I tend to agree with him that the staff of accident and emergency units deserve protection. The context is probably one of public order offences. The present Bill deals with the licensing code. There are many other people who deserve protection, such as bus drivers.
Perhaps we might look at legislation in this area later on.
I note that the Senator came into the House on the basis that we were not making adequate progress and is now busily impeding it.
If you cannot beat them, join them.
Exactly. As far as Senator Jim Walsh's point is concerned, the offences provided for here are the same as those covered in section 6. Whether the fine is €1,500 or €500, in the context of a court conviction there is a great deal of public opprobrium and disgrace. As I said, though perhaps not in this House, for several offences I am considering introducing the right for the Garda Síochána, rather than bring people to the District Court to face the music six months after the event, to serve notice that, if they do not pay a fixed sum, they will be liable for court summons. I sympathise with Senator Walsh in that, compared with a €500 fine, the cost of a garda teeing up a prosecution, the time of the court, serving the summons, the adjournment and so on is quite significant.
I sympathise with the Senator's point that the fines are not huge. However, I am increasing the penalties substantially over their present level. I will not refer to how I have been described regarding this legislation, but I do not want people to say that it is repressive and that I am thinking of the heaviest penalties I can in this case. I would not like to give that impression, since there are plenty of people whose sole aim appears to be to exaggerate this legislation and make it appear anti-youth or oppressive. I am mindful of that when I say that the penalties for publicans are greater than for those who are causing the trouble, but I rely on the common sense of the District Court to sort out who is really guilty in such situations. In another context, people have mentioned that a closure order is a very tough remedy in the first instance. However, the Probation of Offenders Act 1907 allows the District Court, in cases that are purely technical or where there is no moral guilt of significance, to find the facts proven and not to convict at all.
Amendment No. 12 is in the name of Senator Derek McDowell. Amendment No. 13 is related, and they will be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 12:
In page 9, subsection (2)(a), line 20, to delete "first" and substitute "second".
These amendments are in the name of the Labour Party Senators. The Minister has anticipated the point in his last comments about penalties. The Bill creates several new offences, including serving drink to drunk people, permitting drunkenness and disorderly conduct and so on. It sets out, as the Minister has pointed out, fairly low financial penalties for publicans of €1,500 for a first offence or a maximum of €2,000 for second and subsequent offences in the District Court. I understand why he is doing that and, broadly speaking, I agree with him.
This section provides for a mandatory closure order not exceeding a week for the first offence. Requiring a mandatory closure after the first offence is a little extreme. It is also obviously far more important to a publican than any of the small financial penalties that he or she will also suffer. The purpose of the amendment is to provide that the mandatory closure order – the important word here is "mandatory"– comes into play only after second or subsequent offences rather than the first, something that is a more proportionate response to the offences concerned. On the face of it, as the law currently stands, if one drunk person is served a drink too many, the pub can be closed for up to a week and must be closed for some period, it would seem. For a first offence, that seems a little harsh.
I agree with previous speakers about mandatory closing, which is a draconian measure. It is not just the loss of business for a week while staff are being paid but the effect that has on the reputation of the house. The effect would be enormous, even though the closure might occur for little reason.
I assure the House that my organisation and I have no time for anyone who serves under age drinkers. I am amazed at where young people get drink. A member of Senator McDowell's party told me recently he was in Maynooth with one of his children, collecting leaving certificate results. He could not believe the number of 15 – and 16-year olds who were staggering around drunk. I assure the House they did not get drink in the pubs of Maynooth. I do not know where they are getting it.
Recently theEvening Herald sent out a young lady dressed up to look 22 or 23, which can easily be done. She was accompanied by two reporters and they called to 25 pubs in the Dublin area, with the reporters sending her to order drink at the bar. I was amazed she was served in five of those pubs and amazed at the five pubs which served her, as they are among the best-run houses in Dublin. That is entrapment, of course, and it would be draconian to close those pubs for seven days because that girl was served in them. A heavy fine of €5,000 or €10,000 for the first offence would be more appropriate than closing the premises for seven days.
I mentioned this issue yesterday. I commend the Minister on what he is achieving with this necessary Bill, which addresses matters of public concern. I am concerned with the balance, given the responsibility of the licensee. The licensee has a responsibility but so has the individual. I am mindful of what Senator Bohan said and there have been situations of entrapment, particularly with the equality legislation, where people have availed of legislation to advance their own causes or finances. I am also conscious that the penalty is very severe in this instance.
The Minister pointed out that allowing judicial discretion in the matter means that in all probability the Probation Act will be applied but it might be reassuring if the first time a person is caught a financial penalty rather than closure might be applied – the latter option might impact on the business further down the line.
I also mentioned leaseholders yesterday. We have had some developments in this area of a leaseholder carrying full responsibility, though it would be the operator rather than the leaseholder in this instance. The Minister should look at this. If someone irresponsible offends, he or she is not managing their premises properly and will be caught again anyway. A genuine operator who is caught on a once-off basis could be closed down and the legislation should perhaps reflect a more lenient approach.
I am much more in sympathy with the Minister's position. He made it quite clear that the Probation Act can come into play on the first offence, which is perfectly satisfactory. It is very interesting to hear from the honourable, decent people representing the drinks lobby – they have stated their interest – that it does not matter how high the fine is. They will pay the fine but do not want to be closed. That tells me one thing: close them if we are serious about this. That is the only thing that will hurt and it also tells us how much money they are making if they do not care about paying fines of €5,000 or €10,000. If that is cheaper than being closed then it tells us where the money is. We should hit them in the pocket and make them behave.
Senator Bohan has a very high reputation, as do most of his members, and the decent ones will get the benefit of the Probation Act so that this will not happen again. As for the others, the Minister should take the advice he has been unintentionally given and make this pinch. The only way to make it pinch is to close the pubs.
What happens when people are found intoxicated and there is proof the alcohol was bought in an off-licence? What happens to the off-licence? That may be covered in a different section.
When a court closes a pub for a day or two it should specify the weekend for closure. If a publican is responsible for serving alcohol to younger people, the closure should be specified for Friday to Sunday, not Tuesday and Wednesday. The publicans will choose the latter if they have the option.
I am in broad agreement with what is in the legislation. First, it relates to a conviction and second, it specifies the sections in which this may apply – sections 4, 7 and 17. The only place where the sanction may be questionable is section 15, which amends the 1988 Act and states that the holder of a licence shall not allow a person under the age of 21 years to be in a bar if the person does not possess an age document. In that instance this might be a severe sanction but I would not quibble with the sanction in other respects.
First, in the case that an injustice would be done by a conviction, there is always the Probation Act as a way out for the District Court. Having said that, if I accede to these amendments I would be saying that everyone has one free go at being done for drunkenness and the closure regime would not apply on that occasion. That would send out the wrong signal as it would suggest to every publican in Dublin that this will never happen to them unless it happens once and they are prosecuted. A point made constantly yesterday was enforcement, with Senators asking where the gardaí were, who would bring the prosecutions and if they would see any results.
One advantage of the under age closure and this closure is that they work without a garda ever knocking on the door of a premises in advance, so there is a deterrent in place. It signals to the licensed trade, their customers and employees that this is serious and is hanging over everyone's head. If it were totally disproportionate a District Court judge would be able to resort to the Probation Act.
It is not mandatory to close a pub for seven days. The closure can be for one day and I am told that that has happened already in the case of a supermarket, which is serious business. We talk about superpubs but if a supermarket closes for one day there is a lot of explaining to do to head office.
While I have sympathy with the point that Senators Jim Walsh, Derek McDowell and Bohan made, I find the blood-thirsty language of Senator Norris used in agreeing with me slightly embarrassing.
It is embarrassing for the Minister because he agrees so heartily with it.
Sometimes I am damned among my friends in this House.
Taking the more judicious language used by Senator Dardis, I would damage the section and the entire idea if I was to send out the message that a person had one free go and that they would not face sanction unless they had transgressed on a previous occasion. This would make everybody complacent about it and it would not have the deterrent effect that I am seeking. I would prefer to leave the section as it stands and, therefore, I ask Senator Derek McDowell not to press his amendment.
I am not convinced that the Minister has the balance right. Perhaps the power should be there for a District Justice to impose, at his or her discretion, a closure order for up to a week on a first offence. However, what I am quibbling with is the mandatory nature of the closure. It seems that it might, in some circumstances, deter the prosecution of offences in the first instance. There is some evidence of that in the existing closure order provided for underage drinking and the way it is being employed in various parts of the country. Clearly, that would also work to negate the intention of the Bill.
I am not sure that we would be sending out the wrong signal. There may well be circumstances in which there is widespread drunkenness with people falling around the place, breaking up a premises and causing trouble elsewhere afterwards. On a first offence, it would be quite appropriate to close such a premises for a week, but it should be a matter of discretion for the District Justice and not something which must be employed in every circumstance. Equally, if a prosecution was taken – perhaps it would be frivolous – because one drunken person was served, under the Bill, it would be necessary for some sort of closure order to be imposed. On a first offence, that would be too harsh. I do not intend to pursue the matter further today.
If I was to accept the Senator's amendment, there would not be discretion on the first offence.
I accept that. The amendment does not allow for discretion.
I prefer what is in place for the reasons I outlined. I do not claim to be infallible on these matters, but if the message goes out from the Houses of the Oireachtas that drunkenness in a pub is a serious matter and that if there is a conviction, unless the Probation of Offenders Act is applied, there will be a closure attached to it, many of those who manage pubs will tell their staff that from now on they are playing a different ball game.
I wish to digress slightly. The word "drunkenness" is defined in a peculiar way in the Bill. Does one person being drunk constitute drunkenness? I take it that it does. It is possible that a conviction could be obtained, simply by virtue of one person being drunk and being served drink, and that a premises would have to be closed. That strikes me as excessive on a first offence, but I do not intend to pursue the matter any further. Clearly, the Minister is of a mind—
I wish to reply to that with some force. There is some justification for that being the case. If, for example, a 19 year old – forget about an underage person – was rendered hopelessly drunk in a licensed premises, fell on the pavement and suffered brain damage from which they never recovered—
Or drove a car and killed somebody.
—or drove a car and killed somebody else, the fact that it was only one person and that the entire premises was not being run like some kind of Bacchanalian place does not diminish the seriousness of the matter.
I want to get across the message to the drinks industry – we will succeed in doing so – that, from now on, it is a serious matter if somebody gets drunk in a premises. The superpubs, in particular, cannot simply roll out the drink in a commercial industrial operation and have poor, hapless lounge staff earning pittances delivering it to people, without somebody at the top of this arrangement taking responsibility and realising – this applies especially in the case of superpubs which are frequently franchised out – that they face serious consequences, including up to a week of no trading, if they end up breaching the law in respect of drunkenness.
New management policies will arise from this legislation. Staff, particularly in the superpubs, will be told by the management that they do not want the premises closed down for a week. As a result, members of staff will be obliged to monitor the state of the people being served. It will no longer be good enough for youngsters of 19 years of age to go around with trays of drinks and alcopops plonking them down in front of people without any regard to the consequence of what is happening in front of them. That is the message I have been preaching.
I hope I am not a zealot on the issue, but, given what happens on the streets outside those premises and the consequences of that, the public is looking to the House to say to everyone who is a stakeholder in the entertainment industry – particularly in respect of intoxicating liquor – to get serious about this because it is a serious issue.
At the risk of being tedious, I fully support what the Minister said. I am glad that I stayed for the debate because I am enchanted by the Labour Party's obsession with numerology. One amendment proposes deleting the word "first" and inserting the word "second", while the other proposes to delete the word "second" and insert the word "third". I look forward to being offered this superb defence of saying "I was not drunk your honour, I was on my own". Thank God for the Labour Party and invention.
I am not sure whether God has much time for the Labour Party orvice versa, but that is not the point.
Nobody could disagree with what the Minister said. He has painted a picture of orgies, drunkenness and violence involving witless 19 year olds being turfed out on to the street and causing damage to themselves and others. Nobody would stand over such behaviour. However, the Minister has provided that if a 19 year old unwittingly serves a drink to an individual who happens to be drunk, then the premises must be closed. That is too harsh. Clearly, as there will not be a meeting of minds on this, I will withdraw the amendment.
There would have to be a detection, a prosecution and a conviction and a District Court judge would have to say that it is not an appropriate case for the Probation Act. As for the point about getting drunk on one's own, I should tell Senator Norris about an instance where a senior counsel challenged the testamentary capacity of an elderly man in court. He put it to the witness in the case that the elderly man was incapable of making a will, but was making very little progress. He said to the witness, "I have to suggest to you that the testator was in the hands of soliloquising." The witness said, "To be honest with you, Sir, I do not understand that term." The senior counsel then said, "I have to suggest to you that you know very well he was in the habit of talking to himself when there was nobody else around." The witness replied, "Well, to be honest with you, Sir, I was never there when there was nobody else around."
We should try to make progress on that note.
I will withdraw the amendment.
I move amendment No. 14:
In page 10, after line 43, to insert the following new subsection:
"(14) A court exercising jurisdiction pursuant to this section may direct that the closure order shall commence on a date not later than 6 months from the date of the order of the court.".
This amendment seeks to give the court more discretion than does the Bill regarding when the closure takes place. The Bill is quite strict as to exactly when the closure should start, that is, within a certain number of days following the conviction or the appeal. We seek to give the court some added discretion as to the specific period in which the closure would apply.
My wife is from Lisdoonvarna in north Clare. I mention this only because the licensing laws in that part of the country are very interesting. I sometimes wonder whether the licensing laws extend there at all at certain times of the year. The trade is extremely cyclical and seasonal and there are times of the year when no business seems to be done in many pubs and there are other times when a huge amount of business is done.
Obviously, the effect of a closure order would be greater or less depending on when it applied. By giving discretion to the court to decide the period in which – within six months – the order would apply, in a sense allows it some discretion to modulate the severity of the closure. There are times when a closure order would not affect pubs in some parts of the country very much, although there are times when it would affect them a great deal. It seems reasonable to give a judge discretion to modulate the order in that way.
What is being proposed is a softening measure. Effectively, Senator McDowell is canvassing the notion that the District Court could select a date for a closure order when it would be of negligible impact on the publican.
I am not saying that at all.
I am not disposed to do that. We will next be informed that it would be a good idea to adjourn driving disqualifications in order to allow people to emigrate. This is supposed to be a deterrent; it is not supposed to have no effect at all.
The first offence involves closure for one day. Bearing in mind that there has to be a prosecution, conviction and decision by a District Court judge that the Probation Act would not be appropriate in the case, the judge could order that the premises be closed for one day, 30 days after the order in question. In those circumstances, I do not believe that this is a draconian, appalling consequence. I agree with Senator Bohan that it is probably the shame and loss of reputation that is relevant rather than the exact timing of the order. The one day closure could fall on Sunday, which would make little difference to most publicans, but consider the effect of a one-day closure on a supermarket.
Senator Moylan asked if this provision applies to off-licences. The answer is that it applies right across the board. I am not disposed to soften this sanction.
It was not my intention to specifically provide for a softening, it was merely aimed at giving judges discretion. The Minister rightly points out that, even if one takes it as a one day closure, if the court decides to close the pub or supermarket on a Monday, it would have quite a different effect than if they decide to close it on a Saturday. It would be open to the District Court justice to make the penalty much tougher by, for example, selecting a Saturday, rather than a Monday, for the closure. Rather than just leaving it haphazardly, as the Bill does at present, to the number of days following the conviction, it should be a matter of discretion for the judge to decide whether the penalty should be harsher or weaker, depending on the circumstances of the offence in the first instances.
It could fall on Good Friday.
It could fall on any day.
Is the amendment being pressed?
I do not think we are going to have a meeting of minds on this. I will not press it.
Amendments Nos. 15 and 16 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 15:
In page 11, lines 6 and 7, to delete "or Thursday" and substitute "Thursday, Friday and Saturday".
The Minister has rowed back on Thursday night opening hours. These will revert from 12.30 p.m. to 11.30 p.m. I understand that he did so as a result of representations about schoolchildren turning up late for school or being drunk while there and people arriving late for work – or perhaps not at all – on Fridays. I agree with the action the Minister has taken.
The Commission on Liquor Licensing, in its final report, stated that since later opening hours were introduced for Thursday, Friday and Saturday nights, public order incidents have increased significantly. It provided figures – I do not have them with me – which are startling and which must be attributed to late night opening.
Since I entered the House, the issue of street violence and the number of serious attacks – these resulted in death in a number of cases – that have occurred in the past 12 months has been raised on a weekly basis. The incidents to which I refer are a result of late night opening. The Minister has not tackled this issue.
It is not that I oppose late night opening, I would be amenable to having pubs – as is the case in other countries – remain open until much later, but only if we could ensure that the situation on the streets would be properly controlled and policed. The latter would ensure that people would not become involved in violent incidents because they would be aware that they would be apprehended on the spot.
There is no law and order on our streets and that is due to a serious lack of a Garda presence. Until such time as this problem is tackled, we will have to revert to the earlier closing times. This will not be a popular move and it will probably not be supported here this evening. In light of the opinion expressed by the Liquor Licensing Commission, I am surprised that the Minister has not tackled this problem and stated that we must revert to earlier closing times. That is why I have tabled these amendments. I ask the Minister to consider accepting them until he is in a position to appoint the 2,000 additional gardaí to police the streets.
I am grateful to the Senator for raising this matter. Her position is consistent with that adopted by her party at the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights, when Deputy Deasy outlined the same general approach.
This is not a question of my rowing back on anything; it is a question of my accepting the recommendations of the Liquor Licensing Commission. In its final report, under the heading "Negative Impact on Work, Training and Education", the commission states:
The Commission is concerned at reports that later opening on Thursday nights is having an adverse impact on young people reporting for work or training, or turning up for classes or lectures on Friday mornings. While the evidence is mainly anecdotal, the Commission accepts that the longer opening hours on Thursday nights are having an unintended negative impact on the participation of young people in work, training and education. This is a very worrying development and the Commission recommends, therefore, that closing time should revert to 11.30 p.m. on Thursdays. The Commission recommends that the normal closing time on Thursday should be set at 11.30 p.m., i.e., the same as Monday, Tuesday and Wednesday.
That was in the context of a broader consideration by the commission in respect of the hours which were dealt with and the effect of the recent changes.
The commission took a very broad view of this area. It referred to the Criminal Justice (Public Order) Bill – as it then was – which was going through the House, and said that it would serve to provide the Garda with additional means of combating anti-social behaviour and violence. That has now been passed by both Houses and is law.
I accept Senator Terry's comments. I agree that it would be preferable to have more gardaí on the streets at night. However, I am obliged to deal with the real world and not the world as I would like it to be. I have to deal with the real situation that I am confronted with, which is that an expert commission – the establishment of which was approved by the House – reported that it believes there is a case to change the law relating to Thursday night opening times.
In Dublin, in particular – Senator Bohan will probably echo this point – Thursday night is very popular in terms of people going to public houses. That is a fact and it caused me to hesitate in accepting the Commission's report in respect of this matter. However, I will not extend the provision to cover Fridays and Saturdays at this point.
The other point I want to make – the House should reflect upon it – is that it is the special exemptions until 2.30 a.m. and 3 a.m. that create difficulties in terms of public order.
It is not the 11.30 p.m. to 12.30 p.m. regime that is the real problem. I have to provide for a Garda force, rostered by the Commissioner, which has to combat very significant numbers of intoxicated people on our streets between 4 a.m. and 6 a.m. This problem is a consequence of the special exemption order and the entertainment during drinking regime. It arises close to the changeover of Garda personnel at 8 a.m., at which time gardaí have to return to their stations with their charges and carry out other duties associated with the changeover. There is huge stress on the system at this time. Even if I doubled the number of gardaí to 24,000, a significant problem would still arise.
The Senator should note that the closing time associated with the special exemption order is not affected if there is a closing time of 11.30 p.m. or 12.30 a.m. The special exemption order applies to premises closing between 2.30 a.m. and 3 a.m., be it on Monday, Tuesday, Wednesday, Thursday or Friday. Therefore, the changing of the closing time on a Friday or a Saturday will not have any effect whatsoever on a club that stays open until 2.30 a.m. or 3 a.m.
As the House knows, the nightclub owners have been lobbying very heavily to end the provision – we will probably deal with it later – pertaining to the drinking-up time and the entertainment they provide. The main issue is the threat they perceive to their businesses because of having to cease providing entertainment between 2.30 a.m. and 3 a.m. They would be prevented from providing unabated entertainment until 4 a.m. or 5 a.m., subject only to the provision that the last drink would, in theory, be consumed on the premises by 3 a.m. This is a separate argument and will probably have to be dealt with under another section.
Although I acknowledge the argument of the Fine Gael Party, I am not convinced that its argument about changing closing times from 12.30 a.m. to 11.30 p.m. is the crucial link in terms of public order. The recommendation of the Liquor Licensing Commission was not based on public order issues but on absenteeism from work, lateness for work and absenteeism from lectures by students on Friday mornings. As I indicated to Deputy Deasy, if I am wrong in respect of this matter – I do not believe I am – there will be an opportunity in 2004, by way of our major Bill, to standardise the closing time, including Friday and Saturday, to the time suggested by Senator Terry. I am relying on the recommendations I received and I am not thinking up some little wheeze of my own. Although I acknowledge the validity of much that the Senator has stated, the issues she has raised are much more related to the special exemption orders. In that context, I remind her that the legislation is also providing for local authorities to have a new, proactive role in part or all of their functional areas in respect of special exemption orders. This matter should not be ruled out of the equation.
The Minister should read what the commission's report has to say on public order incidents since the opening hours were extended. It makes interesting reading and I am surprised that the commission did not make the recommendation that we should roll back the opening hours on Fridays and Saturdays.
The Minister stated he has to deal with the real world. He should do so and accept the commission's finding that the incidence of crime has increased significantly since the opening hours were extended. There is a serious fault in the Bill because the Minister is ignoring this point.
I will not press the amendment but take the Minister at his word that the matter will be reviewed. I hope that the measures in the Bill that deal with drunkenness will reduce the incidence of street violence and alleviate some of the problems. We will review the matter in a year to see if this is the case. I am disappointed that the Minister has not gone all the way to deal with this measure.
I am taken by the Minister's very reasonable approach to this matter. He is correct in stating that Thursday is now a day of serious drinking. I remember when it was Saturday. Then it became Saturday and Friday, and then Saturday, Friday and Thursday. If this trend continues, every day of the week will become one of heavy drinking. It is a function of affluence – young people have a huge amount of disposable income and have not been educated on sensible drinking. They have been given a bad example and the whole culture is eaten into by the notion that it is hysterically funny to be drunk as that it is an excuse and alibi for anything.
There are now advertisements in England inviting one to come to Ireland to get "out of your skull". That is why so many English visitors come to Ireland to have their hen parties. We have a reputation for drinking and it is perceived to be part of our culture. This has been the case for a long time.
It is interesting that we now say Thursday is a very busy drinking day. Every day of the week will be if we are not careful because there is so much money involved.
I am glad the Minister raised the issue of special exemptions, which I raised at some length on Second Stage, because it really needs to be examined. Publicans in my area have said that they get special exemptions for a whole month without their having any special reason other than that they like to have them. They state that they will get a belly dancer to entertain their customers and that they will fry them a few chips, but this is utter nonsense.
I was very careful when I said we need to examine the way in which licences are granted, the operation of the courts and the weight attached to the positions taken by the Garda, the city authorities and the local people. This has been catered for to some extent, especially in terms of neighbourhoods. I hope the Minister will identify and tidy up the problems in concert with the District Court. The issue of special exemptions is a real headache.
In my area in the south east the late opening hours have not given rise to a significant increase in disorderly conduct, even on Thursdays, Fridays and Saturdays. However, we have noticed that the special exemption orders definitely do. Our local authority has addressed the issue and has contacted the Garda on many occasions because of severe injuries incurred by people as a consequence of disorderly behaviour in local fast food outlets after their having emerged from nightclubs at 2 a.m. or 2.30 a.m. Since the discos in question have closed, there has not been a problem.
I do not know what circumstances are like in Dublin but the legislation is for the whole country. In many ways, it has not led to an increase in people's drinking. I have noticed that people go out later on Friday and Saturday nights. I am not sure I would like to see the current regime removed without there being a definite case for doing so. The legislation is predicated on trying to ensure that public order is maintained. I do not think the extension of opening hours has been a major contributing factor to disorder, especially in rural areas.
I should have declared earlier that I have a vested interest.
We all know that.
I do not believe that the roll-back of one hour on Thursdays will make any difference to the problem of absenteeism from work on Friday mornings. It will not affect many public houses in suburban areas but down town, where tourism has a major input and with late night shopping, especially on Thursdays, if people leave a pub at 11.30 p.m. instead of 12.30 a.m., they will go to the clubs, of which there are plenty around. As Senator Jim Walsh said, most of the problems and disturbances late at night occur as people leave late night establishments. I am not knocking the clubs which are entitled to make a living and at which there is not a great deal of trouble at those establishments which close at midnight or 12.30 a.m.
With regard to absenteeism, closing an hour earlier on Thursdays will not make the slightest difference—
We know that.
—because the extension to 12.30 a.m. did not make much difference. However, I see where the Minister is coming from with the commission. As he said, he will bring forward a bigger Bill in 2004. In the meantime we will see how this works out.
As Senator Terry posed some questions, I would not like to be accused of concealing the facts. In respect of intoxication in a public place, in 2000 there were 14,687 convictions and in 2001, 17,805; in respect of disorderly conduct in a public place, in 2000 there were 2,341 convictions and in 2001, 2,924; in respect of threatening abuse or insulting behaviour, in 2000 there were 14,251 and in 2001, 15,718. The commission took into account and gave careful consideration to all these issues.
Perhaps I am wasting time since Senator Terry has generously indicated she will withdraw the amendment. However, I have taken note of her point that she believes the liberalisation of the licensing laws was a problem. However, it is concerned more with special exemption orders than the actual closing time of pubs. One curious footnote is that the nightclub industry, which is concerned about all of these issues, sought the abolition of the chicken and chips – the substantial meal – requirement and thought it was making life much easier by not having to adhere to this arrangement. In fact, it opened up the opportunity for every pub to continue in operation as an ordinary pub until 2.30 a.m. This agitation was a fine example of shooting oneself in the foot. The one thing that stopped ordinary publicans from seeking special exemptions into the early hours of the morning was the hassle of having to produce a chef, the chicken and chips, the baskets, the red serviettes and so on. When this was thrown away, it threw open competition and effectively widened the scope of the special exemption order way beyond what had been thought. Talk about spoiling the ship for a ha'p'worth of tar, it economised on the substantial meal and created vast competition for itself. Now the industry is asking me – I am open to persuasion – for a special nightclub licence again because it does not like competition from pubs.
There is another huge hole in the licensing law which I will have to look at next year in relation to theatres which can continue all night without any control as long as "a performance" is in train. A performance has been liberally interpreted by the Judiciary as somebody twanging a guitar on a stage. This is very strange but next year's business.
Amendments Nos. 17 and 28 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 17:
In page 11, before section 10 but in Part 3, to insert the following new section:
10.–It shall be lawful for a court which is considering an application for the grant or renewal of a licence to attach conditions requiring the putting in place of a system of closed circuit television monitoring in or outside the premises and conditions in relation to the operation of such a system.".
Unlike some of the other amendments we have discussed, this amendment speaks for itself. It seeks to allow a judge, when considering an application for renewal of a licence, to impose an extra condition that closed circuit television cameras be placed at or near the premises. It is a proven fact that where there is closed circuit television monitoring, it acts as a deterrent for misbehaviour or disorderly conduct. Clearly, the immediate proximity of the pub is the place where there is likely to be disorderly conduct. If a pub does not have a good record or if there is doubt about the publican or the licensee and there are general complaints from the public concerning trouble or noise in the immediate vicinity of a pub, the judge should have discretion to oblige the publican to put cameras in place. I urge the Minister to accept the amendment.
Senator Terry has tabled a related amendment which would make it mandatory to have closed circuit television cameras. I confess to the House that I had thought along similar lines to Senator Derek McDowell's amendment. I thought twice about the issue and decided I would prefer to provide for next year rather than this year for the following reasons. There is no doubt that in certain public houses the obligation to have closed circuit television cameras, either within or at the entrance of premises, would be helpful to the Garda Síochána. Where there has been trouble in a public house, a public order Act passed recently provides that the District Court can make it a requirement, as a consequence of intervention in such cases, that a closed circuit television system should be established.
I accept that what Senator Derek McDowell has suggested is discretionary and that what Senator Terry has suggested is mandatory. My concern is that if one takes Killorglin, County Kerry – a favourite – or the town of Loughrea, of which I do not have as fond memories because I am usually involved in a traffic jam, and considers the number of pubs on the main street and the amount of closed circuit television monitors that would have to be installed, one would have to ask whether all those premises are getting five customers each night and if this requirement would be proportionate.
Senator Bohan's allies in the public house trade are mainly Dublin orientated but in rural Ireland many public houses are, at best, economically marginal and teetering on the brink of closure in many cases. With rates expenditure and so on, it is hard to make a living in many public houses, some of which are run more as hobbies than as real sources of a livelihood. I do not know the cost of a closed circuit television camera but I am sure it would cost a few thousand euro.
If the district judge is of the opinion that this is a good idea for a publican, he or she can impose this liability but the question arises as to whether he or she could do so in respect of every pub in Killorglin or Loughrea and not in others. There would be a great deal of argument. I want to think about the matter further and 2004 will be the time to do it. It is not as if there is nothing in place. Under the Public Order Bill, where any of these establishments, including fast food outlets, become a focus of disorder, this power is available.
I will ask my officials to consider exactly what Senator McDowell has proposed as an amendment to this Bill. Rather than go down that road this time, I prefer to give myself time to think about whether it would be fair or proportionate or whether there would be a way out of it for people for whom it was disproportionate. Those are the kinds of issues in the back of my mind. I accept the bona fides of this amendment but at the same time I ask the House to bear with me for a year while I think the whole issue through. I do not want to impose huge liabilities on places which have three customers a night and for whom it would make practically no difference.
Would it be considered insider trading to invest in closed circuit television companies?
Most of the larger pubs in the Dublin area already have CCTV cameras installed because so many of them have been sued for refusing service to people. Their only defence was to have a camera to show that these people created trouble or problems. Publicans were being sued by people who claimed to have slipped in toilets etc. so the cameras have been installed in the publicans' own interest.
I agree with the reasonable point made by the Minister. The amendment is unreasonable. In my area of Castlecoote where there are three pubs the people would be appalled to think that it was necessary to have surveillance on them when coming out from pubs at a reasonable hour and in reasonable condition. Everything in the area is run in an ideal way.
Nobody gets drunk.
Perhaps the Senator does not wish to be caught on camera.
It would not be appropriate to have a George Orwell big brother type of operation. The proposal is unusual for the Labour Party. It surprises me that the party is getting more left wing. Fianna Fáil is more liberal.
A return to the Stalinist regime.
Indeed, it is like that. It is the Workers' Party influence.
Senator Bohan's point was reasonable. Most of the big pubs have installed these cameras for their own security and safety. A recent meeting of the Joint Committee on Enterprise and Small Business dealt with insurance costs, which are appalling. In rural areas it should be at the discretion of the owners of premises whether to install CCTV. I do not want to see it in my area and I am glad the Minister does not propose to insist on it. When he looks at the issue again he should exempt pubs of a certain size or turnover. In regard to the turnover,there is a provision which identifies the size of pubs in regard to the cost of a licence. The Minister should allow the smaller pubs to have a discretion.
The Senator is unreasonable. The Labour Party's amendment is a good one. Provision of CCTV assists the fight against crime. We have seen on "Crimeline" that it is of great assistance in apprehending a person. Some day there may be some undesirables passing through Castlecoote and it might come in handy.
I agree that CCTV is not relevant to every pub in the country, but I agree with Senator Derek McDowell that in the event of a case going to court or where a pub has had problems in this regard the judge should be able to insist that the pub install CCTV.
To help the House, I should have mentioned that on page 12 of the Bill there is a new restatement of the provision for special exemption orders. It provides that where a special exemption order has been granted, CCTV may be stipulated as a condition for granting the order. That would differentiate between the cosy pubs of Castlecoote and places in the fast lane.
As the Minister has said he will consider this in the light of legislation coming next year I will not press the amendment. We did not intend that it would be mandatory but that the discretion would be there on an application for renewal of a licence.
I move amendment No. 18:
In page 11, before section 10 but in Part 3, to insert the following new section:
10. – With effect from a date prescribed by order of the Minister, it shall not be lawful to employ a child in an employment which primarily involves work in a licensed premises.".
This relates more to the employment of children rather than being specifically relevant to licensing legislation. Existing legislation defines a child as somebody under 16 years of age and somebody between 16 and 17 years of age is a young person. It is not appropriate that a child should be employed on premises where, if the legislation is passed, he or she could not be present at certain times of the day. Perhaps this is implicit already in the provisions the Minister has introduced in regard to the presence of children. It is a belt and braces approach to specifically prohibit the employment of children in pubs.
The question of employment of young persons in licensed premises is not easy. Persons under the age of 16 are not permitted to work in licensed premises but the employment of certain 16 to 17 year olds is permitted. Their general duties are confined to serving tables and returning empty glasses to the counter. They are not permitted to sell intoxicating liquor.
A code of practice specifying the conditions of employment has been adopted and appears as a Schedule to the Protection of Young Persons (Employment) Act 1996 and the regulations made in 2001. As the social partners in the licensed trade have signed up to the code of conduct it would be inappropriate to set it aside without the necessary consultation with them. It would also prevent family members of licensees from helping out in the premises at weekends or during school holidays and could have an adverse effect on young persons considering a career in the sector.
I have some sympathy for the proposition but generally speaking I am content to leave the law as it is. I know some people say young people should not be in bars under any circumstances. A lot of people in the Houses have taken up employment of this kind and it has done them no great harm. On balance the case has not been made for excluding young people from pubs.
We have had three attempts at legislation on the employment of young persons, a matter on which I have spent much time in discussion with different groups in the trade union movement. It has always given me some difficulty. I tend to go along with the Minister's final point. The idea of rearing people away from the real world is not good. On the other hand, we must ensure that they are protected from exploitation. It is important to get the right balance between both.
I am aware of the amount of time that was put into getting the code of conduct together. No group was completely satisfied but it did find a balance between the needs of the different groups. Every month I hear instances of children, who have finished their middle years in post-primary school, looking for jobs in their local pubs and being refused because they are under 16 years of age. Publicans have been honourable, diligent and responsible in this area. I have walked into pubs where I have seen the opposite but in the main there is a positive development in this regard. A balance has emerged which did not exist five years ago. Where we have problems, they could be dealt with through a tighter policing of the code. I would be happy if the existing code of practice was being implemented solidly, as it is being done in responsible houses, although not in others and no change in the law will help them.
I congratulate the Minister on his reasonableness on this section in so far as age is concerned and I hope he will be as reasonable as we continue with the Bill.
I am being buttered up for something.
It is reasonable because otherwise life would be nearly impossible for publicans, particularly those with families, who perhaps leave a son or daughter in charge of the house, which is attached to the premises, for an hour or two during the day. This type of thing happens in my area and one must be reasonable about such cases. For instance, if a garda came in and saw a young person of 15 or so serving or looking after the premises for half an hour, he or she could be guilty of an offence.
I am beginning to realise that there is a greater difference than I had thought between Dublin city pubs and those in the country. I have noticed in pubs in my area that the trend has changed. There are no under 18s working in pubs any more. It is mostly foreign nationals, since young people no longer want to do that type of work.
Section 14 provides that the holder of a licence of a licensed premises shall not, "subject to subsections (2) and (3), allow a person under the age of 18 years to be in the bar of a licensed premises at any time". Does that mean that a person under 18 years of age cannot work in the pub? If they cannot be allowed on the premises, how then can they be allowed to work?
The Senator is going ahead slightly.
Am I in order, a Chathaoirligh?
Yes, the Senator's comments are relevant to the employment aspect. I remind Senator Leyden that I am in the Chair.
I was seeking to help Senator Terry.
Can a person under 18 years work in a pub?
The intention behind the Bill is laudable and I do not think anyone would dispute it. It is undesirable for young people to be exploited or be unduly exposed to the drinks trade at an impressionable age.
I take the point the Minister has made, which is an important one. In any business, irrespective of whether it is the licensed trade or otherwise, it is important for young people to come into the business through employment during school holidays and so on. Whether this applies to farming or otherwise, it is difficult to generate interest if children do not grow up in the business.
Senator O'Toole said earlier that he could remember pulling pints in Dingle and Senator Minihan spoke about working in his grandfather's pub in west Cork. All this has been a standard feature of, at least, country life. On a recent Saturday morning, I watched a rugby international in a small pub in Leenane. I went into the pub reasonably early in the morning—
—and a young man, whom I suspect was 15 or 16 years old, cleaned the place, set the fire and did all the work that many people might not be inclined to do. He served me a cup of coffee and was extremely courteous. It would be wrong, notwithstanding Senator McDowell's laudable intentions, if that type of introduction to the trade were to be lost, which could be the effect of such an amendment.
The primary intention of the amendment is to avoid the exploitation of young people and their being brought into an environment most of us would prefer they were not. The 1996 Act provides that young people should not work beyond 10 p.m. According to the code of practice which the Minister has kindly supplied me with, that has been extended to 11 p.m. in certain circumstances at weekends. However, I suspect that it is not adhered to as strictly as it might be and that many people who work in pubs do not finish at 10 p.m. Since many of them are in school, the difficulty is that if they are working from 7 p.m. until closing time, which in any event is illegal, it inevitably affects them the following morning.
The Minister may not have the information at the tip of his fingers, but I would be grateful if he could find out whether there have been any prosecutions in this regard. Some months ago there was a prosecution in regard to a fast food outlet, but I am not aware of any prosecutions of public houses. Is this legislation merely on paper, or is it enforced? If it were enforced, I would be happier to withdraw the amendment.
I will have to invoke the Werner von Braun defence that it is not my Department. It is the responsibility of the Tánaiste and Minister for Enterprise, Trade and Employment.
We are living in a protective nanny-State world, where it is assumed that it would be a dreadful thing for a 16 or 17 year old to be in a pub working at night. However, it is not assumed to be such a terrible thing if he or she is out in an open space exposed to drugs, drink and so on. Who will protect young people in this scenario? We must bear in mind that childhood is not the uncomplicated thing many of us assume it is.
Although I share the Senator's view that pubs may not be the most salubrious place for young people to work at night, there are many other less salubrious places in which idle youngsters find themselves spending their night time hours. It is not that they would be at home with their trigonometry book working out tomorrow's homework. The truth is that if they are not gainfully employed, they will probably be out in an open space in their own area with someone trying to get them to take drugs or experiment with alcohol.
We have come full circle to a point at which it is suggested that work is a bad thing for young people – and work in a pub even worse. As a society living in the real world, the number of kids that come to grief in pubs is tiny compared with the number who do so loitering around their area with nothing to do, saying they are bored and being offered heroin and ecstasy by people who want to exploit them. Keeping them out of pubs will not save them from exploitation. Putting them out in open spaces in their own communities at night is probably a bigger source of danger to them than anything else.
In the ideological disagreements that the Minister and I have occasionally had in the past, on more than one occasion I have accused him – I thought frivolously – of wanting to drive children back into working in the mines. At this late point in the evening, I discover that I was not all that far wrong.
I agree with Senator Terry. We have an anomalous situation where it is not permitted that children should be on a premises of a public house late at night consuming a lemonade, but it is perfectly permissible and lawful for them to be behind the bar or serving in the lounge. It is an anomaly we need to address. However, perhaps this is not the time to do so.
I move amendment No. 19:
In page 11, before section 10 but in Part 3, to insert the following new section:
10.–(1) The Minister for the Environment and Local Government shall, within 2 months of the passing of this Act, propose regulations lowering the permissible level of alcohol in the blood for persons driving on a provisional licence to zero and for other persons to 50 milligrams of alcohol per 100 millilitres of blood, with corresponding reductions for the permissible level in urine and breath.
(2) It shall not be necessary for a member of the Garda Síochána to form any particular opinion before requiring a person to give a sample of his or her breath under the Road Traffic Act 1961.".
My colleague tabled this amendment for discursive purposes. However, I do not intend to pursue that discussion. Therefore, I will not press the amendment.
My colleague, the Minister for Transport, Deputy Brennan, will be shocked because, having taken many initiatives to appear on the front of newspapers with various proposals in relation to road transport, it is terrible that the Labour Party thinks the Minister for the Environment, Heritage and Local Government, Deputy Cullen, is still in charge of this area of the law.
This is relevant to the discussion we had on section 10 in regard to special exemption orders and closing hours. Again, thinking about rural Ireland, it struck me that the argument as to whether closing time should be 10.30 p.m. or 11.30 p.m. was somewhat academic, particularly at weekends. If one holidays in the west of Ireland, on the route from Dublin to, say Newport, County Mayo, there is not a weekend that one cannot find licensed premises open until very late in the evening. There are festivals to celebrate everything, including grasshoppers, trout and whatever else happens to be the local delicacy. I am sure a person could, without difficulty, spend the summer months visiting licensed premises open until the early hours of the morning.
In this respect, the debate is somewhat unreal, especially in the context of rural Ireland. While I take it local authorities and the Garda can have a view on this, it appears that a liberal view is taken of what constitutes a function or an event in terms of securing an exemption. By this I do not mean dinner dances or club functions but local festivals. I do not say they are a bad thing because the degree of rioting in the streets, about which Senator Norris is concerned, is minimal.
On the question of 11.30 p.m. or 12.30 a.m. closings, there is a certain veracity in the traditional view in the west that pubs close sometime in November. It appears that each year every crossroads can avail of exemption orders between May and October. Is this subverting the intention regarding closing hours?
I agree with Senator Dardis. The phrase "special occasion" is catch-all in scope. The section extends the provision for longer opening hours to every type of occasion and is far too loose. It almost amounts to an extension of opening hours and needs to be tightened up. Perhaps we will revisit the matter when we next deal with this issue.
We are again in danger of going down a slippery slope. The House engaged in four hours of moralising yesterday in the debate on Second Stage. If we continue in this vein, we will introduce prohibition. Rural Ireland takes the right approach. Drink is kept in its place and can be enjoyed by local communities. The licensing laws are implemented in a practical manner, which is to be recommended. I ask the Minister to disregard the comments made by his party colleague and Senator Terry. They mean well but people are becoming over-enthusiastic. At this rate we will end up shutting pubs and shooting youngsters.
The Senator is misrepresenting me.
There was a time when it was said rural Ireland did not have enough festivals and that nothing was happening. We should be concerned about keeping things alive. Let people organise events. What is wrong with holding festivals? They are a means for people to get together and celebrate. We should encourage them to be creative in their approach to finding things to celebrate. There is enough dullness in the world without legislators injecting more of it. I ask the Minister to go easy on this aspect.
I support Senator O'Toole. It is not easy to get extensions. I was secretary of a festival committee and involved in this kind of thing.
The shame committee.
Name and shame.
Senator Leyden, without interruption.
Thank you, Sir, for your protection. A festival lasting one to two weeks would happen in Roscommon town possibly once a year during August. An order must be obtained from the courts. Perhaps the courts differ elsewhere but in my area the judge is very strict and will lay down strict regulations regarding days and opening hours. Events must be arranged in a certain way. I am delighted the Minister is taking a reasonable approach to this aspect. He is striking the right balance.
While I tend to agree with Senator O'Toole's view, I will not rehearse the arguments. Am I correct in understanding from the section that the special exemption order runs to the times designated, be it 1 a.m. or 2.30 a.m., depending on the day, and that the only discretion of the local authority rests with the area to which they are to be applied? Am I correct in assuming that local authorities do not have a discretion on the time aspect, in order that, for example, it would not be open to them to provide that special exemptions will extend to 1.30 a.m. only?
Section 11(7)(a) states:
A local authority may adopt a resolution concerning the expiry times referred to in subsection (5) of this section in respect of the whole or a specified part of its administrative area and may by resolution amend or rescind such a resolution.
It appears that it must be the expiry times set out in subsection (5).
I interpret it to mean that, for example, Dublin City Council could rule that the regime may apply in Temple Bar but not elsewhere.
It is meant to have geographical effect.
I appreciate that but does it provide that the local authority can have discretion regarding closing times? It does not appear to.
I believe it does.
I am not convinced.
I tend to agree with Senator O'Toole. It would not be appropriate for me to dismantle the current arrangements without adequate consultation. I am interested in the points raised by Senator Dardis and that in some parts of the country matters are so bad that grasshoppers are a local delicacy.
Senator Derek McDowell's point about the difference in opinion regarding the employment of young people reminds me of the old adage of the Jesuits, "Give me the boy of seven and I will give you the man." The Thatcherites in England say, "Give me the boy of seven and I will have your chimneys swept by half past seven."
Sections 13 and 16 deal with the supply of drink to young people by parents and guardians in their private residence. I am concerned that, as drafted, the legislation will facilitate retrospective permission granted by a parent or guardian to avoid prosecution or conviction in the event of something happening. We must face the fact some parents are so busy in pubs that they do not supervise activities in their private residence.
What does the Senator mean by private residence?
It does not extend to boats or yachts, although perhaps an amendment could provide for this. There has been much debate about under age and binge drinking among 15 and 16 year olds. I am concerned that there should be more flexibility in these provisions. The overall circumstances of an offence must be taken into account, including the type of drink provided and the adequacy of the supervision. If the courts were allowed such flexibility, they would be able to make a decision based on all the circumstances of a case in the event of prosecution.
As drafted, the provision means that if a prosecution were to take place and the parent were to give retrospective permission, the case would not stand up. I would prefer to see the matter before a court in which the judge could examine all relevant factors to allow him or her to conclude whether or not adequate supervision was provided or permission was forthcoming.
I am a little concerned that we will trip ourselves up by making an unintentional provision in trying to curb the scourge of under age drinking. People order drink from off-licences in the name of an adult and send a taxi driver to collect and deliver it to them. It is the same as ordering a pizza. We must provide greater flexibility and control to courts to allow them to form an opinion on the overall circumstances surrounding such an occasion.
I have some support for the comments of Senator Minihan in this regard. In my town a few unsavoury characters used to gather in the house of the parents of one of their number. The parents lived abroad and were not very reputable. A great deal of under age drinking took place in the house, which is why I would not like to see a scenario in which a parent could provide retrospective approval to such drinking to avoid convictions. Those who gathered in the house in question were of a nature which was highly intimidatory to the rest of the people in that neighbourhood.
I can envisage circumstances in which parents could be intimidated into giving retrospective approval. Senator Minihan brought that to mind and it is something that should be examined. If it were to happen it would constitute a major flaw in the legislation. Perhaps in subsection (2) provision could be made to require the parents or guardians to be present in a residence when alcohol is consumed. It would be a simple amendment.
We are travelling down a very paternalistic road by intruding into people's homes. I would have thought that if the behaviour was as bad as Senator Jim Walsh says, it would have been covered by other aspects of the law. It is idle for the Oireachtas to speculate as to whether a parent's permission was actually granted. How could a court ever determine if it was retrospective or not? This is a nonsense and we are wasting time on it. I do not mind as I have wasted time occasionally myself.
It might be a waste of time to Senator Norris.
If behaviour of the sort referred to by Senator Walsh becomes outrageous, it is covered by other aspects of the law.
It is not.
Of course it is, if these people are creating a nuisance or intimidating people. The Senator said their behaviour was intimidatory and was causing a nuisance to neighbours. It is covered by other aspects of the law.
The Minister is saying what I was trying to say on Second Stage, which was that the vast majority do not object to people drinking. On the Continent young people are encouraged and educated to drink by their parents, but we have a much worse problem here where they are not. The problem is not that people take a drink, it is the behaviour consequent upon that. That behaviour is covered by other aspects of the law. We are travelling down a dead end.
It is very easy to rubbish something, but if one does so, one should be familiar with the facts of the case which has been put forward. I was reminded of the case to which I referred when Senator Minihan was making his point. The case involved a family and a serious and unpardonable crime was committed. Alcohol and, probably, drugs were involved.
If a crime was committed, it is a different matter.
The alcohol problem, which was a serious issue in the locality, was brought to the attention of the Garda, but there was very little it could do about it. The people involved were not being sold alcohol, they were bringing it to the house. It turned out that the problem persisted for a very considerable time and the council became involved. It met the superintendent to see if anything could be done. People on the estate came to us privately and did not wish it to be known they had done so for fear of intimidation.
This was a genuine case. If we are serious as legislators, we must provide measures which ensure that what happened is illegal. Subsection (2) must be strengthened to achieve that, which is why I make the argument in support of Senator Minihan.
I have heard the Senators' comments. According to existing law, if alcohol is delivered to a person in a private residence, no offence is committed regardless of parental consent. The new element of the law is that there has to be parental consent. I accept fully the point the Senators make that it is possible where an offence has been committed for a parent to absolve a youngster retrospectively. The parent may say to gardaí investigating an offence that their son had consent to receive drink in another person's house. There is a limit to the law and, on balance, I am unwilling to allow the Garda to set parents against a son or to challenge the parent's version of events even if the parent is bending the truth. The effect would be to set families against each other and to inquire too much into their private affairs.
I accept fully the counter argument that pressure could be put on parents to pretend there was consent after the fact, but we must be proportionate. Do we want gardaí to say, for example, that they disbelieve Mr. McDowell in respect of what he did or did not allow his son or daughter to do? Do we wish to allow the Garda to invite the court to disbelieve there was consent in the circumstances and to make a liar out of a parent in public or to say he attempted to mislead in relation to an incident in his own house? It is arguable whether we should go that far, but as I am strengthening the law I do not wish to be accused of reactions which have too much of the nanny State about them. We will go this far this year. If the point the Senators make is borne out, we can bring the law a stage further.
Amendments Nos. 20 and 21 are related and may be discussed together, by agreement.
I have discussed this matter with a number of interested parties and listened to the views of a number of Senators on either side of the argument. With a view to accommodating holidaying families and people in rural areas and to avoiding complication of the law by providing different time limits at different times of the year, and taking into account the fact that sunset occurs in the west 40 minutes later than in the east, I am of the view that 9 p.m. is a reasonable time to set. We do not wish to do everything from a Dublin perspective. I am not in favour of a deadline of 8 p.m. for under 15s and of 9 p.m. for 15, 16 and 17 year olds as suggested. The law must be understandable and people must be permitted a clear view of what is involved.
The Minister is to be commended for introducing this amendment. I agree that it would be unnecessarily complicated and burdensome to make distinctions among the various age groups. However, I am still concerned about the issue of hotels. The Minister made a distinction yesterday between a bar and eating area and said that if children were in an eating area it was a different matter.
Take the example of the family holiday hotel in the west where it would be normal practice for the family to eat at 8 p.m. or 9 p.m. The family would usually go into the bar of the hotel before going to the restaurant. It will be virtually impossible to implement this provision when the family is together. Other Members gave the examples of people coming back from football matches and so forth but the 9 p.m. limit addresses this to an extent. However, I cannot see a hotelier being able to operate this measure. In most holiday hotels in the west the bar and dining room are beside each other and there is constant interchange between them. I do not see how this provision can work.
I wish to move amendment No. 21.
We have to dispose of amendment No. 20 first.
In that case, I will rely on what I said on Second Stage. It seems silly and unfair to send young people between the ages of 15 and 18 years off to bed at 8 p.m. They should be allowed to stay until 9 p.m. With regard to the earlier amendment, however, I have no difficulty with providing that children should be out of a premises by 8 p.m. I will not call a vote on it but a public house is not a good place to bring young children in the evening. There is an argument for providing that children under 15 years should be out of the premises by 8 p.m. and giving the older children the distinction of having an extra hour because they are on the verge of adulthood. It is not an important point but it is valid.
I am glad the Minister has changed the time from 8 p.m. to 9 p.m. Like Senator Dardis, however, I do not know how it will be enforced. The hotels the Senator mentioned will have a major problem with it. A large number of public houses in the Minister's constituency have a thriving food business. Many take their families out on Saturday and Sunday evenings for a meal and, during the summer, it is not considered late to go at 8 p.m. or 9 p.m. I do not understand how the Minister can expect a publican to tell a family sitting down to a meal that their children under 18 years of age must leave the premises at 9 p.m. Apart from the economic argument, it will be almost impossible to enforce on a busy evening, especially with tourists and foreigners who are accustomed to staying in a premises for as long as they wish when having a meal.
I ask the Minister to go a step further and increase the time to 10 p.m. That would be reasonable and much appreciated. During the summer it is not considered late to serve food up to 10 p.m.
This is proof that one cannot please everybody. I would have preferred the time to be left at 8 p.m. However, perhaps this is a difference between Dublin and the country. When one goes into a pub on a Sunday evening, one will regularly see children running around. They should not be there after 8 p.m. However, I do not have a difficulty with the provision because the single hour does not make a great deal of difference. Pubs that serve food could install a separate dining area which would only be used for dining and by families with young children. That would get around the problem outlined by Senator Bohan. If the premises is a public house, can it have a closed off restaurant where people can stay after the 9 p.m. deadline?
Perhaps the Minister will elaborate on this section. I believe it is unworkable. If legislation is introduced that is unenforceable, it brings the law into disrepute. I am not familiar with British law but I recall bringing my niece to a pub in Britain when we were there on holidays. We were ordered out and I thought it was because we were Irish.
The Senator was drunk.
I was not. I did not take a drink until I was 22 years of age.
The Senator has made up for it since.
The Minister has been reasonable on other issues. He received the submission from the Irish Hotels Federation and saw its graphic statement. The anti-family accusation was a little unfair, to say the least. The Minister is not anti-family but pro-family, so much so that he has included this section in the Bill. How will the provision work? I have seen how the system works in rural areas. The Cathaoirleach comes from a rural area—
The Senator cannot involve the Chair in the debate.
The Cathaoirleach probably cannot come down here while I take the Chair. We will have to do a bit of work on that.
The Senator will have to wait a long time.
My apologies. Under no circumstances do I wish to take the Chair. The Cathaoirleach is doing an excellent job.
The Senator should speak to the amendment.
I will but the Cathaoirleach is being provocative, if he does not mind my saying so. He is encouraging me to debate with the Chair.
Speak to the amendment.
The Senator is rambling.
I do not understand the reason this section is included in the Bill. It is not necessary, particularly in rural areas and for premises where food is served. We should also bear in mind the problem of holidaymakers visiting a premises and being asked to leave at a certain time. I ask the Minister to reflect on this over the weekend. He should come down the country and see how it works. He might change his mind.
Perhaps I have a solution that would keep everybody happy. I will explain to Senator Leyden and the Minister how the system works in reality. I was on Bere Island at the weekend and went to a lovely place called Lawrence's Cove. The bar has just one space. It is the only bar in the area and food is served. Gardaí come out diligently once a year to remind people of the licensing laws which are displayed in the pub. As the pint costs €3, it should be at the top of the Minister's list.
Consider that in the context of the lack of understanding in the Department of Justice, Equality and Law Reform of rural Ireland. I am getting confused because Government Members are speaking against the amendment but will support the legislation. Are we trying to impose this on the rest of Ireland because of a problem within the Pale? As the Minister referred to the different times of sunrise and sunset in the west, is it not possible to propose a simple amendment whereby this amendment would apply only to the Pale?
On Second Stage I suggested that there be staggered times during the summer for older children. I came to the Committee Stage debate to support Senator Bohan's request to extend the time limit to 10 p.m. for 16 and 17 year olds. There are family holiday hotels throughout the west. Families go for a meal and then to the residents' lounge for the music and dancing which children greatly enjoy.
During weddings younger children are generally sent to the room with a babysitter while the parents remain at the wedding. However, how can the provision be applied to children between 15 and 17 years of age at wedding functions or during the holidays? I implore the Minister to go a step further and consider the later hour of 10 p.m. for that age group.
I shall be very brief because we gave this a good going over yesterday. In fairness to the Minister, he invited us to give our opinions in relation to this.
The Senator is still not happy, however. The Minister has done everything to meet his needs.
Senator Jim Walsh without interruption, please.
I was one of those advocating a move to 10 p.m. Obviously, I would be pleased if the Minister did that. In fairness, however, others argued that the limit should remain at 8 p.m., and he has come some way to meeting the views of the House. If he can go the rest of the way, great, but if he cannot, I ask that he does not trigger the implementation of the age limit provisions of the legislation until the end of the summer, which I think he intends doing.
I ask the Chair whether we are bound to finish by 8 p.m.
So we can continue.
We can go on until 10 p.m.
Or 9 p.m.
I wonder if we could arrange for the publication of these fascinating reminiscences from all around the House about the drinking habits of Ireland. They would form a wonderful little booklet.
I listened to the Irish Hotels Federation privately and to a reaction of its views in public that this measure was anti-family. Nobody would say it is anti-family to have a notice in a hotel saying that children must be out of the bar by 9 p.m.
Nobody would say that a hotel is anti-family in such circumstances, especially when they could sit outside on the armchairs in the rest of the hotel having their Club Oranges and the parents could bring out the pints to them.
Bring out pints to the children?
The pints would be for the parents. As somebody who has brought children away to holiday hotels on many occasions, I know there will be an occasion when junior will march into the bar, probably in his pyjamas, to complain that one of the other children has been beating him up upstairs or something like that. I do not expect the Garda to seize or close the premises if they see this happening.
What I am saying is that in a hotel, the rule is that at 9 p.m. children are no longer allowed in the bar. I put it to Senator Feeney that I am particularly concerned about 16 and 17 year olds. If I set a time of 10 p.m. or 11 p.m. for them, I have effectively lost control of the whole purpose of this identity card proposal, which is to get 16 and 17 year olds out of pubs. If I, or this House, makes a rule that 16 and 17 year olds who are in the company of their parents, cousins or whatever, cannot be in a bar after 9 p.m., I know that the law will be the same in North Great George's Street, Leeson Street or anywhere else. The rule is the rule right across the country.
If I have a rule which is better for hoteliers than for publicans, I know that the publicans will rise up as one and say that they are now at a disadvantage because families are all rushing down to the hotels for their evening drinks and deserting the pubs. This provision is not being put in as a piece of nanny-statery. We started from the proposition that we want to stop people under the age of 18 from drinking and from the proposition that people over 18 had to have a card and people under 18 were not be seen in a licensed premises at all.
At present people under 18 can sit there all night drinking Club Orange in the company of a person over 18 who is drinking an alcopop that is visibly indistinguishable from the Club Orange. Nobody can supervise this is in a large premises and work out who is drinking what. The law is effectively unenforceable in that respect. We moved from that to say that there must be a time at which 15, 16 and 17 year olds are out of a premises so that a publican knows that everybody in his premises is over the age of 18. We have said that younger people, who would, in the ordinary course of events want to have soup, coffee and all the rest with their parents while out for an afternoon, would not be able to avail of that loophole to loiter around a pub and to drink in circumstances where they were not obliged to have any evidence of age or whatever.
There has to be some cut off point at which kids generally, whether over or under 15, have to be out of the bar of licensed premises. I do not accept the proposition that this is anti-family. A hotel bar is a public bar and is in competition with the public bar across the road that is not a hotel. If I went to a hotel in rural Ireland and saw a notice above the door to the bar stating "No kids after 9 p.m." I would not decide to cancel my stay in that hotel because it is anti-family. That is a grotesque distortion of the reality. It is not anti-family.
Senator Bohan talked about families going out for meals in our neck of the woods, and I am thinking of two places in particular along the Dodder valley which cater for those kinds of situations. If their owners cannot, over the next few months, arrange a room where families can have a meal without having the kids in the bar, they are not as resourceful or legally imaginative as I think they really are.
This is not a draconian measure and is not going to rip the heart out of family holidays. If I am going on a family holiday with a 16 or 17 year old, it is not a draconian or unreasonable step for me to have to tell him or her to respect the house rules and go out into the lounge, up to the TV room or residents' lounge or to the room specially provided for family meals or wherever, as long as it is out of the public bar of the hotel. If I did not do this, all of this business about identification cards would collapse like a house of cards. It would mean nothing. If we relax on this and say that 16 or 17 year olds can be in the public bar of a large hotel such as, say, the Burlington Hotel in Dublin, after 9 p.m., then it is a matter of people going around and sticking their fingers in people's glasses to see what they are drinking. In reality, that is not a workable law.
Many people are getting a bit worked up on this subject. I am very flattered by Senator Leyden's suggestion that I am reasonable, but I am not being unreasonable in saying that this is the only way to make this legislation workable. If I acceded to the notion that 16 and 17 year olds should be allowed to loiter in public bars and hotels after hours, then the whole effect of this Bill would be more or less lost.
All of this allows young people to be in a licensed premises, to be in any part of a hotel apart from the public bar, to attend weddings, funerals, confirmations, communion parties or whatever occasion is taking place as long as the portion of the hotel they are in is not a bar within the meaning of this Bill – that is, a portion of a hotel normally used either exclusively or predominantly for the sale of alcoholic liquor. That effectively means the public bar of the hotel.
Take any hotel around us here – we are getting hung upon Roundstone. We know the difference in Buswells, across the road, between the bar and the rest of the hotel. It would not be anti-family in that context to say that there are plenty of rooms, sitting spaces and so on which are not the public bar, and a family could go there and have a perfectly good evening together, eating whatever food is available without any imposition upon them. There is nothing unreasonable about this and it is not the end of the world.
If I made a concession for hoteliers I would be immediately attacked by the publicans, who would say that all the families in a particular resort were now going to the hotel because they had to bar the kids from their premises whereas the hoteliers did not. I ask the House to bear with me and stand with me on this. I am being reasonable, and moving the time limit to 9 p.m. deals with virtually all the real points of substance that were made about family holidays. After 9 p.m. parents will have to either ask their 16 and 17 year olds to sit outside the bar in the other portions of the hotel or move out with them. Alternatively, the hotelier will have to provide some space in which the family can get on with its revelry together.
The Minister has been eminently reasonable. He has given us a clear, cogent, well argued version of his case which has persuaded me. The accusations of being anti-family are a form of cheap sloganeering which do not match reality. If a reasonable person went into a hotel and saw a notice saying, "Children are not allowed in the bar of this hotel after 9 p.m.", he or she would register that this was a place that cared about the family and was more interested in its welfare than in the profit it would make out of selling drink. That is pro-family. The Minister is perfectly correct and is being extremely reasonable.
I also support the Minister. Like Senator Terry, I am dismayed by seeing small children in bars. It is a terrible sight and children do not much like it either. This section might appeal to adults because it might be nice to be in a pub without having a crowd of small children on top of one after 9 p.m. Perhaps it will encourage me to go into pubs more often than I have in the recent past.
The Minister is right about 15, 16 and 17 year olds because when we discussed the sexual assault unit in the Rotunda, and accident and emergency departments in hospitals, one of the most difficult groups to deal with was children aged between 15 and 17 years. Dr. Mary Holohan, the consultant in charge of the sexual assault unit in the Rotunda, said the most difficult night to get anyone to staff the department – she always has to do it herself – was the night the junior certificate results came out, not the leaving certificate. This is a serious issue.
Like the Minister, I rely on the ingenuity of the publican on Bere Island. I bet he would have a room somewhere in which to put children in order that he would not lose his clientele.
I seek clarification. The Minister said this would not affect weddings. Will a function room in a hotel, where there are two bars, be covered in barring young people after 9 p.m.? For example, in a hotel in Roscommon, from where I come, there is a fine function room. If a wedding is held there and a bar is operating after 9 p.m., it seems unreasonable that children will have to leave because it is a big family event and many children accompany the wedding couple.
I was going to ask the Minister a question privately on this point but as Senator Leyden has raised it, I will ask it now. Does the definition of "bar" in section 2 which "includes any counter or barrier across which drink is or can be served to the public" include a function room or does the word "and" before "includes" rescue it from that provision? This goes back to the definition of "bar".
How will this be monitored to make sure it will work? I agree with much of what the Minister is saying but I can see the law being broken unless he has vigilante groups of some kind watching all the time.
The Minister seems to be getting more support on this side of the House than from his colleagues. I want to bring to Members' attention another group of young people. I appreciate what Members on the other side are saying about those who may be attending weddings, or tourists. However, there is another group of children who would be in a pub up to 9 p.m., which is too late – the vulnerable children of irresponsible parents who bring their children to the pub in the afternoon, give them a glass of orange and a packet of crisps and stay for hours. I have seen this happen. That is what I think of when I hear talk about allowing children to stay in pubs up to 8 p.m. or 9 p.m. As the Minister says, other children can be catered for, outside the bar. I agree with this.
Let me speak on behalf of the Minister and remind the House that on at least four occasions since this debate started yesterday evening – I have not been present for the entire debate – the Minister has specifically indicated and explained that the section does not apply to function rooms and weddings and other such things. The definition of "bar" is very clear in the Bill and we discussed it earlier. This is becoming tediously repetitive. It has been made absolutely clear that the function room is not part of what is "exclusively or mainly used for the sale and consumption of intoxicating liquor".
It will have to be "any open bar or any part of licensed premises which is exclusively or mainly used for the sale and consumption of intoxicating liquor". One knows a bar when one sees one. Defining it is one thing but it is like an elephant, one knows it when one sees it. This is clear. The bar in a hotel or any licensed premises is not a place where youngsters can be found. I could have gone the whole way and brought forward a Bill which stated, "not portion of licensed premises" at which point I would have been in difficulty with hotels because an entire hotel is licensed. It remains an offence, for instance, to send beer up to a 14 year old in room 253 in a hotel but that is not what this is about.
This subsection is trying to ensure that when gardaí arrive in a large Dublin city centre hotel and see a young person in the bar, they can ask for his or her ID and if it turns out to be a 17 year old, they can prosecute the hotelier. Everybody knows what is meant by the bar of the hotel and what is not the bar but the lounge. In that instance gardaí can say the hotelier is running a premises in competition with Senator Bohan's members and allowing 16 and 17 year olds to be in the premises in circumstances where no publican could be allowed to do so. In such circumstances the hotelier is committing an offence. There is no reason large, well organised pubs – I am not talking about super-pubs – cannot establish function rooms and have parties and so on as long as the portion of their premises arranged for this purpose cannot be described in the District Court as the bar in the premises.
Let us be real. If we do not have this provision, we might as well throw our hats at the whole scheme. If somebody has some bright idea that I am missing, that is fine but I do not think I am missing any. I am carefully delineating what is reasonable from what is unreasonable. I have not heard any other formulation, apart from the question of hours, which is a different issue. If gardaí can walk into what we call the bar of any hotel and find a 17 year old and do nothing about it, how can a hotelier in those premises say anything other than the business about cards for 18-21 year olds is a farce because 17 year olds are allowed to be there anyway? What is the ID card scheme trying to achieve?
Everybody talks about enforcement and asks where are the 2,000 gardaí required to enforce this? The subsection is trying to stop 17 year olds being in the places in question. If publicans and hoteliers use their creative genius, to the extent which I believe they have it, they would easily avoid anti-family or grotesque results by rearranging their businesses in an orderly manner. There are plenty of barristers who would give them opinions on these subjects if there was any difficulty.
I move amendment No. 21:
In page 15, line 5, to delete "8.00 p.m." and substitute "9.00 p.m.".
Uno trionfo for the Independents.
As I mentioned on Second Stage, I am only interested in enacting legislation that is enforceable. Having listened to the views of Deputies, Senators and other interested parties on the issue of age documents, I accept that it would be difficult for 15, 16 and 17 year olds to produce such a document, as many of them, such as age cards or drivers' licences, are not available to 15 and 16 year olds.
In the circumstances, I consider it appropriate to propose an amendment to the age document requirement so that it will only apply after 9 p.m., since those under 18 must have left the premises by that stage. The amendment means that the mandatory requirement will apply only to 18 to 20 year olds who are in the bar of licensed premises at any time between 9 p.m. and 10.30 a.m. the following morning.
I should add that the Minister for Social and Family Affairs has helpfully indicated a willingness to consider adding a photograph and date of birth to the public services card that is now issued to 16 year olds. If such a development comes about, it would mean that the card in question could be used for evidence of age purposes, and that would enable us to revisit this provision next year. I emphasise that the fact that the age document will be mandatory after 9 p.m. does not prevent the licensee from demanding evidence of age before 9 p.m. The licensee must also ensure that the underage provisions are complied with at all times and not just after 9 p.m.
This makes the law totally rational and enforceable. The fact that evidence of age applies only at that stage does not mean that it is lawful in any circumstance to give alcohol to a person under the age of 18 in a pub at any time. We currently have a situation whereby, if one brings one's 17 year old into the pub to have crackers and soup on holiday, he or she will have to produce a card to be on the premises, which is ridiculous under such circumstances. The evidence of age card should be forgotten about before 9 p.m. The law will be rational and workable and no one will say that it is unreasonable or that it produces unfair results.
I spoke at some length on this subject on Second Stage and I do not wish to hold up the business of the House. However, it is a step backwards and a decision against the little people. It means that those who are already vulnerable and feel exposed and discriminated against will have greater difficulty finding redress. The whole point and thrust of this Government has been to render procedures informal and ensure that what I might describe as "your own union" does not get further control over areas – I am talking about the legal profession.
Taking the appeals process away from the tribunal into the District Court effectively means that the individual – it might be a woman, a gay person or a Traveller – trying to seek his or her rights will have to face a panoply of legal eagles. It really is a deterrent and goes against the spirit of the equality legislation. I heard the arguments of the Minister and others yesterday about people feeling that this item of the law had been – while perhaps not abused – misused or overused. Ultimately, it is the courts which interpret whatever has irritated us about the use of this law. It was the outcome of court cases which said that young people, or whoever it may have been in the particular case to which reference is made, were being discriminated against. I did not table an amendment, but I raised the question and hoped that the Minister might respond.
I could see sense in the Minister's argument about protecting all interests. However, this really makes it difficult for the little person. In the case of every tribunal established since I entered the House 16 years ago, each Minister who has proposed one has said that it was to make it easier for the people, be it the Small Claims Court or whatever. The Minister knows what eventually happens. I saw an employment appeals tribunal recently involving one person where, as I think I mentioned last night, there were two senior counsels, one junior and I do not know how many advising solicitors. Tribunals are difficult enough, but at least in those situations people with experience can represent individuals and do something. Going into the District Court changes matters and there are all sorts of difficulties.
The thrust of my argument, and that of every speaker whom I have heard, is the importance of tribunals, small claims resolutions and domestic remedies for smaller cases to make it easier for people, remove legal costs, make it simpler to get a resolution and shorten the time involved. Something that could be done here as a compromise between our points of view would be to have an initial step at the employment appeals tribunal. Then, if the person against whom the complaint was being made – let us say a licensee – wished to have it dealt with in the District Court, I could, reluctantly, live with it. It might suit the licensee very often.
The publicans' lobby has seen this as a game, but that might not be true in many cases if licensees have to start paying huge legal costs. There are no winners in this except the legal profession. I know that we have to protect people, and, running a union myself, I know what is involved. One must do one's best for them. However, I ask the Minister to reconsider this point. There must be easier ways of doing things. It is simply unacceptable and a step backwards. The Tánaiste has just established a body, the Personal Injuries Assessment Board – to which I am a nominee – with the idea of reducing court time and engagement. This is the first item of legislation that I have seen moving in a different direction and it will cause problems. It will certainly do so for those making complaints, and the licensees will also have a difficulty with it which they do not currently see. There is no gain in this and it is not part of what we are doing in the Bill.
I am surprised at Senator O'Toole. I thought that we should commend the Minister for making the change. Recently, matters reached a stage with the tribunal where there was a mini-industry of people, particularly members of the Traveller community, suing publicans – for whom I speak. The publican had no say in the matter and the equality officer or whoever it may have been was awarding sums of €2,000 or €3,000 at will, without the publican being able to put his or her case forward.
Some cases were ridiculous. In one, a publican refused two Travellers admission because it was 1 p.m. and they were absolutely twisted. They took him to the tribunal, which awarded them €2,000 each. The reason was that they could not have been drunk, since it was only 1 p.m. I might also point out that they had just driven 15 miles to get to the pub. Those are the sorts of decisions that were being made. I commend the Minister for bringing matters to the District Court, where there is a judge and where, if one has broken the law, one will be punished. That is where the licensing starts. One is granted a licence to run a public house there. That is where the licensing should end if one is not running it properly. It should then be up to the District Court to decide whether one is breaking the law.
I commend the Minister on including this provision as this was becoming a mini-racket. People were being intimidated while publicans were getting letters and had to defend themselves. I have met many quality publicans who ran great premises and were reasonable to all sections of the community. However, they would not be reasonable to those who entered the premises in an intoxicated state, refusing to supply them with drink. They then received documents detailing the time and date on which this occurred and literally had to buy people off to avoid being sued. There is plenty of evidence of this, though I do not have it with me tonight.
Who is afraid of the District Court? It is a small court to which it is easy to gain access. Publicans have said to me that they are prepared to face the District Court rather than someone telling them they will have to pay €2,000. The Minister has received good advice on this in his Department and it is an excellent, workable provision with which publicans are pleased. Let us go before the District Court and make our case; let us change the law with this wonderful section, which I support fully.
There are sharply divided opinions on this section, which I accept. Some have taken it as an implied criticism of the equality tribunal that this decision was made. I offer no such criticism. The tribunal is doing an excellent job but a licensed premises is not the same as Brown Thomas, for example. The decision to admit or not to admit is a matter of legal consequence and controlled by the District Court. Failure to admit to a public house is an issue in relation to the renewal of one's licence, the orderly conduct of one's premises and, when the Bill comes into force, drunkenness. I do not want a situation where a publican sees someone enter his or her premises and thinks: "Hold it, this person is gay or lesbian or from a minority racial group or a Traveller. If I say "No" and there is trouble afterwards, the local sergeant will threaten me with closure under the latest Intoxicating Liquor Bill, while if a complaint is made to a tribunal in Dublin which operates a concurrent jurisdiction, I may go down the tubes for €2,000. What do I do?" That is not a fair dilemma for anyone.
I was reminded today in the other House by Deputy Cuffe that 12 groups had spoken out, with one voice, against this move but the vast majority of those who have mentioned this to me – who are not members of any of the groups but living in the real world, as I put it – support this provision absolutely. They believe it is reasonable.
The District Court is organised as the people's court. It is not a difficult court in which to do business. The District Court clerk is under a duty to help anybody who has no legal representative in filling out any documents necessary to bring people to book in that court. Also, for Senator O'Toole's information, lawyers have been found present in 30% of equality tribunal cases. There is no holding them back.
They are everywhere. They are ubiquitous and the Minister is opening new doors for them.
I am not altering the ground rules. It will still be compensatable discriminatory behaviour to refuse entry for a prohibited reason.
Furthermore, we are including a remedy in this provision whereby, in addition to paying compensation, if it is a gross case, the District Court can order closure to teach a lesson to someone who does not allow a black person into their pub on arbitrary grounds. A temporary closure order can be issued in order that the publican does not do so again. Furthermore, the District Court can rule that if it happens again, the licence may be lost completely. This is by no means a toothless jurisdiction being conferred on the District Court; it is tougher than anything the ODEI tribunal can do.
To those who say the ordinary person may find it embarrassing to go to the District Court, in addition to having access to the court via the clerk if one has no representative, the Equality Authority is being given the statutory function to assist people who want to bring claims of this kind in anamicus curiae role.
This is not one way traffic. It is not the great victory for recalcitrant publicans which people are claiming. This is a decision to put those closely related, interconnected decisions into one single venue where people can decide the rights and wrongs of a decision – before this provision, if one made a decision one way, it exposed one to one remedy, while another exposed one to another legal consequence. In this venue there are people who assess others' credibility day in, day out in every other aspect of their lives, from drink driving to prosecutions and licensing.
I have great faith in the District Court being able to operate this section fairly. It has not been behind the door in kicking around publicans found to be discriminating against Travellers, threatening them with loss of their licences. This has happened in County Clare on a number of occasions.
We must have workable laws. If we are saying to publicans we will close their premises if they allow people come onto their premises drunk, we cannot say at the same time that if the people concerned come from any group which would allow them to establish aprima facie case of discrimination in the equality tribunal, we will give publicans the cruel dilemma of choosing between two disasters. One disaster is having the licence attacked and pub closed, while the other is being ordered to pay compensation by a totally different tribunal which will not consider the other side of the coin.
It is strange how vulnerable we in the political world are to NGOs saying something is a bad idea, which may also be true of the media. For Senator O'Toole's information, everyone I have spoken to out on the streets says this is the right way forward, that it is not reactionary, redneck conservatism. There is a disconnection in the minds of some who are reading the wrong newspapers, if I can put it that way. The great majority think what I am doing is sensible.
Unfortunately, the real world is the Law Library. In the same way that the Minister went to great pains to say this was no reflection on the Equality Authority, nothing I say is a reflection on the District Court, which I never mentioned.
I always start to worry when people start to defend – an old Government trick. It implies something and forces me to defend something I have never said. Senator Bohan mentioned some strange, anonymous person and was backed up by Senator Leyden. The Minister also walked into it by mentioning a tribunal in Dublin. Let us get a few things right: no anonymous person can fine a publican without him or her having the right to put his or her case.
I was one of the first people to take a case to the equality tribunal in 1977 or 1978 as soon as it was established. I had some experience of it before the legal eagles got involved and when it was a decent place to do business. I am not clear about the minutiae of that particular aspect of the law, and I am sure the Minister will correct me if I am wrong, but the equality officer conducts a report and comes to a conclusion. I have often been deeply unhappy about the lack of consultation by equality officers. We have all been in that situation and have asked why something was not discussed, etc. In that respect, Senator Bohan is right. He is wrong, however, in respect of the next part.
If one does not like the outcome, one can take one's case to the appeals tribunal. The appeals tribunal comprises a nominee of the business community, a nominee of the trade unions and an independent person. These are three ordinary people who listen to the case and reach a conclusion. If some publicans paid €2,000, as required by the anonymous person, they obviously did not want to put their case despite the fact that there was a forum in which they could do so. I am sure the Minister will confirm that these tribunals do not take place in Dublin, but in a venues convenient to the parties concerned. This is a trouble-free approach.
The Minister has been vociferous and has made a cogent argument, with which I do not agree but which I accept is quite strong, on the issue of rights and about how people attain their rights in a modern democracy. He has often cogently articulated his view on the importance of those rights not being written into the Constitution and other such documents but that, nonetheless, people should have access to their rights. What the Minister is doing here runs contrary to that particular argument. He has not given a good reason, he has merely given a logical argument about why a matter should end up in the District Court. I do not disagree with that, but ending up in the District Court when dealing with such issues is quite different from beginning in the District Court.
That is not to say that people will not get help in the District Court, but it does not meet the need and it will be more difficult for the type of people who might wish to take a case. If there are abuses, they are of the sort for which we, as legislators, have legislated. If the current law requires this to be implemented in a different way, then we should do so if people are unhappy with it.
In regard to ordinary people, I guarantee the Minister that one third of the people present in the House could not explain how the system works in terms of equality officers, employment appeals tribunals and the situation in respect of the District Court. I place my reputation on the line by saying I am certain of that. The Minister said that people on the streets know the difference and what is best, but he can forget it. That argument sounds good, but it does not meet the needs.
It is not my intention to put pressure on licensees. If a law is being abused in some way, we should ensure that we stitch it down in such a way that such abuse cannot happen. However, it is not good enough or acceptable for someone to state that a publican paid €2,000 because he or she could not put his or her case. That cannot happen under the current legislation, as I understand it. Why did the publicans not put their case? They could have gone to an appeals tribunal, which would have been set up locally. The Minister should reconsider this issue and include a step before the District Court. It can be brought back to the District Court, if necessary.
I do not think this is really about equality adjudication. There have been abuses of the legislation, of which everyone will be aware, but that is probably not the issue either. This legislation correctly places a great onus on licencees. In doing so, they will be subject to adjudication by the courts on whether they have complied. Equality officers probably come with a certain perspective, which perhaps a District Court judge would not have and would may well be more objective in dealing with the matter. Any equality issues that might arise would have to be adjudicated by the judge in the context of the intent and the licensing provisions.
Bringing in equality officers and the District Court as two separate adjudicators is somewhat similar, if I can use the analogy, to having two referees in Croke Park – one watching for incidents of tripping and the other monitoring dangerous tackles. It would lead to all sorts of confusion. It is much more sensible to take the approach that is envisaged and that is no reflection on the District Court or the equality officers. We must ensure that licensees, publicans and those who will have responsibility for running licensed premises know that they will be dealt with in a consistent manner. That is imperative.
We are hung up on this because perhaps we believe the thrust of equality legislation has been somehow reduced, although that is not the case. If we stand back and reflect on the intent of the Bill, we will see there is a lot of sense in what is being done.
I am glad that the Minister introduced this section. The drinks usually supplied in these offers are disgusting because they put a lot of ice in them, so they are not giving twice the measure at all. The advertising of such offers is aimed at students and I have seen evidence of this. I pointed out to the House on a previous occasion that some are directly aimed at young women because advertisements stating "Three vodkas for €10"– which, I understand, is a bargain – were placed on the doors of the women's lavatories in Trinity College. I am glad that the Minister has included this section because it is important. Such offers have become an awful curse. One sees advertisements which state "We are changing venue, come and get three drinks for a certain price".
Has the Minister considered the situation whereby people pay a lump sum for a night of drinking? Is provision for such activity included in the Bill? Is it similar to the so-called "happy hour", which is very dangerous?
The happy hour provision is one we could manage by ourselves, but the fixed amounts and the promotions area are slightly more problematic. The Attorney General's office warned me that if I did something which potentially interfered with EU trade or the capacity to promote new products and so on, I would have to notify it to the Commission. I have no problem issuing such a notification, but, if I did so, I would not be able to get the Bill passed before the summer recess. The ever-inventive parliamentary counsel thought of a way around this. It is contained in section 21(1), which deals with those types of promotions by way of regulation. It does not prevent me from passing the legislation, but requires me to notify the Commission of the regulations I make.
I know that the lawyers will look at everything with a microscope and, in the event that somebody states that it was an unintended consequence and that I got it wrong, I draw the House's attention to the happy hour provision. It states that "reduced price" means a price less than that regularly being charged for intoxicating liquor during an earlier period on the day concerned, so that allows somebody to increase the price at a later time during an evening.
In case anybody says they did not know what was being put past them, if a licence holder has a special exemption or whatever, this provision does not prohibit them from charging a different rate at a later time, provided that the increase is imposed towards the end of the evening. In the event that anybody is of the impression that we did not notice this, it is deliberate and that is the way we have to deal with it.
There are some pubs – I do not approve of such behaviour – which charge extra in the later part of the evening. On the other hand, whereas I may not approve of it, the market sometimes determines these issues. In addition, charging more during the special exemption period may deter some people from going out drinking during those periods. I am not making that illegal.
I am drawing this matter to everyone's attention because I think some eagle-eyed lawyer will see it, anyway, and then claim that I got it wrong. We did not get it wrong, we did it deliberately.
Amendment No. 1 to amendment No. 25 on the Supplementary Order Paper is being discussed with amendment No. 25. There are two corrections: first, the lead-in should state "before section 21"; and, second, the first line of subsection (3) should read "subsections (5) and (6)”.
This amendment is designed to allow the Minister for Arts, Sports and Tourism to issue to the owner or owners of a designated national sporting arena, a certificate approving of a grant of a licence in respect of such an arena. The phrase "designated a national sporting arena" means a speaking note . I apologise, means a major arena or stadium—
I never thought I would see the day and please do not forget—
This is what happens when I am out past my bedtime.
The Minister is an hour over.
I think it is time he told Senator O'Toole something—
At present, some national sporting arenas are not properly provided for in respect of licensing. For example, Croke Park is not properly endowed with the capacity to have the sale of intoxicating liquor on its premises. It could try to bend the club rules in some way or establish a club. If it did so and then a convention, a meeting or whatever took place on the premises, the club rules are really being abused in an attempt to cover the use of some of the facilities on the campus for intoxicating liquor. As a result of representations I received, I agreed to come forward with a proposal with regard to these venues.
The terms of the licence are restrictive and do not cater for hospitality offered in conjunction with non-sporting events. At present, in respect of other places, the conditions attaching to licences are often inappropriate and this makes compliance with an enforcement of the licensing laws very difficult. This situation compares unfavourably with the licensing arrangements for racecourses, greyhound tracks, national cultural institutions and the National Concert Hall.
The amendment that I am proposing would allow limited and controlled sale of alcohol, at both sporting and non-sporting events, in designated areas of national sporting arenas and would regularise the licensing positions of these arenas. Moreover, many national sporting arenas find it difficult to generate sufficient income from sporting events alone to cover the cost of their operation. Increasingly, such facilities are being used for non-sporting events, such as conferences, exhibitions or seminars to support the operation of the arenas.
This amendment, which has been agreed with the Minister for Arts, Sports and Tourism, would allow him to designate by means of a regulation, certain national sporting arenas. Such designated venues may then apply to the Minister for a certificate which would enable them to secure a licence for the sale and consumption of intoxicating liquor in designated areas on the premises. I am satisfied that the managers of the national sporting arenas will ensure that a responsible approach is adopted towards the sale and consumption of alcohol on their premises and that the facility which is currently being proposed will augment the enjoyable use of these venues for the benefit of the public and participants at functions in the future.
The phrase used is "national sporting arenas", and it does not refer to every club throughout the country. In respect of the designated areas, it is the intention that under no circumstances will the swilling of beer on stands at events be allowed. This is designed to be confined to after-match events, hospitality during events or whatever. The provision will not allow masses of fans to stand around with plastic beakers full of beer, as is the case in some countries. I do not believe it would be appropriate for us to go down that road.
I apologise that this is being introduced so belatedly. I also apologise for my own apparent unfamiliarity with my speaking notes. As far as I am concerned, this is worthwhile. If I do not take action now, I will not get around to doing so until well into next year. That would cause difficulties for, among others, the Gaelic Athletic Association, an organisation that I am anxious to facilitate. The GAA made an honourable approach to us in this regard and I think we are meeting them honourably and generously in response.
All I can think about is drink at the Bertie Bowl.
This is a sensible amendment. In terms of a practical approach, it is unique in that it is the only part of the Bill which opens up access to alcohol. To that extent, I thoroughly support it. I also believe that national stadia need to be able to provide this type of facility. We are talking about arenas, for example, Croke Park, which are under the control of national organisations such as the GAA. It would be odd if such a superb structure and facility as Croke Park was not able to provide a full service in this area. I fully support and endorse the Minister's words on this part of the Bill.
This is a positive approach and I do not believe there will by any objections to it. It does what we were discussing earlier, namely, it focuses on an item of law relating to clubs and similar organisations which has been twisted in every direction. The Minister has inserted the necessary wording to tidy it up and make it operable in a way that is open, transparent and responsible.
I will not say very much more because Senator O'Toole has outlined the position well. There has been huge investment in sporting arenas. I hope that further investment will be made in the not too distant future. It is appropriate that they should have all the commercial underpinning necessary to make them viable. If one goes to places such as Old Trafford and sees the way it has been developed to provide facilities at different times and functions, it shows that the overall use of such a facility, which is a huge capital investment, is well underpinned. We should aspire to have those type of facilities here. The organisations that displayed courage in making investments should be supported.
It was totally unacceptable that, in the past, small sports clubs in rural areas were governed by the same rules as designated national sporting arenas. The Minister is to be commended for recognising this anomaly and correcting it.
I understand perfectly what this is being done. I may be mischievous in suggesting that it also might be an indication of flexibility on the part of the Progressive Democrats, our partners in Government, towards provision of a national stadium, which the Minister should appreciate is definitely needed. I hope the Minister will see that it is provided. Such a facility is needed and the sporting organisations, fans and everyone else want it. I hope the Minister has as much flexibility in that regard as he has shown in not only this but in many other instances.
Is this relevant to the amendment?
Yes. As the Minister referred to national stadia, as distinct from national stadiums, one assumes that this law will apply to anything that will come on stream in the future. Notwithstanding the Minister's reference to designated areas within stadia and the fact that we would naturally expect those applying for certificates to be as honourable in discharging their obligations as the Minister will be in certifying them, I hope that in a stadium with a capacity of 80,000 – I refer to Croke Park – the designated areas will be adequate and plentiful and that there will not be a mass of people entering specific areas wherein will occur the kind of behaviour the Minister does not wish to see.
Most sports events are family affairs. I am not in favour of the culture of drinking or accepting the fact that because everybody else is selling alcohol, a national sports body should have to do so in order to survive. Unfortunately, this would be reminiscent of King Canute. The reality is as the Minister has outlined. I hope and have no doubt that he will adopt a sensible, logical position, rather than a moral one, to the issue of young people being faced with the sale of alcoholic drinks in national sports stadia and during live music concerts – I am not referring to conferences or seminars. Any Senator who has had occasion to attend live music concerts will know that there is no question about the fact that there is a drink culture associated with them.
The city was festooned by Heineken to encourage people to go to the European rugby cup final in Dublin and I do not think anybody batted an eyelid. Unfortunately, the GAA is constantly pilloried about its sponsorship by drinks companies, which implies that there is a double standard. I know that the Minister will discharge his duties more than adequately in this respect.
Subsection (7) affords the Minister the opportunity to ensure that, once he has granted an organisation a licence under section 21, the regulations will be carried out to the letter of the law and we will not have tokenism associated with costs or economies. As I said, Croke Park has a capacity of 80,000. If one goes to the Millennium Stadium in Cardiff, one will find that it, too, has plenty of resources and that there is no need to push or shove therein. I bring my children there and they do not feel they are exposed to the drink culture because of the manner in which intoxicating liquor is sold. Croke Park has a responsibility to young people to discharge its responsibilities under the law. I feel very strongly about this matter – it is the only one I raised in respect of this Bill – and hope the Minister will derive some sense from what I am suggesting.
I, too, welcome this amendment. However, I am not sure that I fully understand how its provisions will work. Given that drink is already served at all matches in Croke Park, what difference will the amendment make?
Croke Park is a registered club to which one is admitted as a guest. This situation could continue quite happily but if it was decided to hold events in the stadium that had nothing to do with the club or the playing of Gaelic games, as was the case in respect of a function associated with the EU Presidency, it would be over-stretching the rules to pretend that the club was having a function if the Government was hosting foreign Heads of State. I attended a trade mark and patent agents dinner in the club facilities of Croke Park, which are fantastic. This is fairly near the edge of what is legally permissible – I am not suggesting it was unlawful but remember thinking that it was odd that a sports club was hosting a semi-commercial activity.
I fully accept the comments of Senator Mooney. It caused me to gulp when this amendment was put before me as an idea. One might ask if I am now in the business of identifying sport with drink. I am not because what happens at sports events in Croke Park is covered by the club. The amendment will allow the GAA to achieve maximum use of its conference facility, host large seminars, management conferences, etc., and will not further the connection between sport and drink. I have spoken to the Minister for Arts, Sport and Tourism, Deputy O'Donoghue, to ensure this provision will not be used as the thin end of the wedge to have drink sold on the terraces and everybody swilling beer while watching events. That would be disastrous for Irish sport and should not be permitted in any circumstances.
Senator Terry raised the issue of drink and advertising. Media commentary and the control of advertising do not come under the remit of my Department, which is concerned with intoxicating liquor and licensed premises. However, because the Fine Gael Party has been quite emphatic on this subject, the point must be made that the issue must be tackled carefully. It is not just a matter of banning all advertising of alcoholic drinks. In the happy days of the 1950s, when I was growing up, we were subjected to Guinness advertisements, including the one that stated that "Guinness is good for you", and I do not believe they demolished or subverted our culture. The real problem does not lie in sponsorship of the Irish Oaks by Guinness, the Derby by Budweiser or the Rugby World Cup by Heineken because advertising of alcoholic drinks on television, aimed at young people and suggesting that it is cool to drink and that sexual prowess and social expertise are augmented by alcohol consumption, is far worse.
One of the problems we now face is that we cannot control what is carried on Sky Television or UTV. RTÉ, for instance, has a policy of not advertising spirits but Irish whiskey is now being advertised on UK channels beamed into Ireland. Under EU law, we cannot unilaterally adopt measures that could affect the sale of drink between countries or simply say advertising of drinks should be prohibited in its entirety. Whatever we do has to be notified to the European Union and must also be subject to its controls. It is not that I am not mindful of this issue but it is not the responsibility of my Department to take steps in this regard – it is more a matter for the Department of Health and Children. It will not be easy and anybody who thinks it will is deluding himself or herself. It is more complex than making a black and white decision that there should be no advertising.
I wish to make an amendment, with the consent of the House. In section 25(2) "Minister for Arts, Sport and Tourism" is repeated but it is unnecessary because "Minister" is already defined as such in section 21(1).
Does subsection (5), which states, "There shall be charged", read correctly?
That is Revenue talk.
I commend the Minister on subsection (1)(a) which prohibits promotions on a licensee's premises. I have seen extraordinary promotions, for example, for rum with bonny girls leaping around the place, which must have cost a fortune. Therefore, they must be well worth doing. I have a question about the subsection because at this hour of the night I can ask Senator Quinn for double Superclub points for having my wits about me. I realise the Minister has to bring forward regulations regarding this matter. Senator Quinn has pointed out to me and the Minister that there would be a great cost and a great deal of labour involved in affixing particulars to all containers of intoxicating liquor sold for consumption off licensed premises. In order that I can report back, has the Minister had any further thoughts on the matter?
Yes. I met Senator Quinn on Friday afternoon when he was donating a horse to the Garda Síochána in Ballinteer and discussed this matter with him. The same issue that arose in relation to the transport of goods between countries applies to the European dimension to this also. I have a problem, perhaps, in relation to this. Again, I had to take the regulation route because I did not want to go the notification route to the European Union. I have come to the conclusion that the previous law, which was never commenced because people began to worry about its practicality, was a very blunt instrument and that in some circumstances it might be possible, for example, in the case of sealed boxes of wine, champagne and brandy, to rip them open, stamp them and affix labels to them. That would be ridiculous and utterly futile if the aim was to stop under age drinking. The two issues would be totally unrelated.
I have repealed the section which never commenced and I am replacing it with an enabling section which allows the Department to generate proposals effective by regulation to require the marking of alcohol sold for consumption off the premises. I have raised in the other House and mentioned here some of the difficulties in relation to this matter. Would one label every bottle in a six pack? How would one get to the bottles in the middle of the six pack? Would one rip open every bubble wrapped tray of drink and affix labels to every bottle and would one have to put them back together again to sell as one unit? Would one open every box of wine and affix stickers on each bottle? We have to ask ourselves whether this would be practical. If there is a practical way, I will bring forward regulations to achieve that end. I do not want the off-licence trade to be subjected to a crude obligation which was valueless compared to the disproportionate cost of implementing it.
Senator Henry can tell Senator Quinn, in getting her double Superclub points, that what we have decided to do is recast the existing mandatory provision which was never commenced with an enabling provision based on regulations which will be tailor made to the issue and only be made if practicality determines they will be of some benefit to the community.
Was not Senator Quinn wise to give a present of a horse?