I welcome the Minister and his officials to the meeting to resume consideration of Committee Stage of the Bill. Amendment No. 38 is out of order.
Intoxicating Liquor Bill 2003 [Seanad]: Committee Stage (Resumed).
SECTION 19.
Amendment No. 38 not moved.
Question proposed: "That section 19 stand part of the Bill."
This section has caused much controversy. It seeks to move jurisdiction for dealing with certain cases from the Equality Authority to the District Court. The Minister has explained the rationale behind the decision but neither I nor the many groups which have worked in this field and lobbied us are happy with it. We do not consider this to be a positive move.
The Minister said it would be better if jurisdiction for dealing with all matters relating to intoxication and licensees was held in the one court. However, this is not true in other areas of law where jurisdiction is shared. For example, employment law provides for two or three jurisdictions such as the Labour Court, the Equality Authority and recourse to the District Court in some matters. Jurisdiction was given to the Equality Authority in the first instance to ensure there would be an independent body with expertise to adjudicate, although I do not suggest that the District Court would not have similar expertise.
The system in place allows for mediation, for which the courts do not usually allow. It also allows for it to be done at relatively low cost for both parties by comparison with the costs they may incur if they must have recourse to the District Court. The current system works reasonably well and it would be a retrograde step to move away from it.
While there is a perception among some that the Equality Tribunal would be an easy touch for one group or another, an examination of the awards granted shows that in most cases they have not reached the maximum allowable while they have been very low in others. The tribunal has also issued judgments against those who have claimed discrimination of one kind or another. In view of this, it would be regrettable if there was a move away from an expert group such as the tribunal.
I oppose this section and agree with some of the arguments made in opposition to it. The Minister is creating a puff of smoke by giving the impression that a substantial structure of precautionary provisions will be put in place to protect those who will be affected by an extension of the reach of the District Court. It is proposed that the court will cover areas currently covered by the Equality Tribunal. The tribunal is disappointed at the manner in which elements of its work are to be transferred to the District Court and unhappy with the statements made by some, particularly in the publican lobby, that it was unprofessional in its approach.
It is proposed to transfer from the Equality Tribunal to the District Court key areas of discrimination, especially those dealing with access to public houses. This is being done for the reasons outlined by the publicans. This is of relevance to other groups because once this is established, there is a danger that other service providers will seek to obtain the same exemption from the provisions of the Equal Status Act. It is dangerous to go down this road.
The Minister has argued that compensation will be provided and that tough measures will be enacted, including the provision for temporary closure, which is as strong as it gets. He also argues that the Equality Authority can support an application, that assistance can be provided and that objections can be made to the renewal of a licence. That is part of the guilty complex approach to the section. The Minister well knows he has pulled the rug from under the feet of so many in terms of their right of access to the Equality Tribunal. If the heart of what should be provided is to be removed, it does not matter if a good surrounding structure is imposed on the replacement. It will not undo the damage that will be done.
According to the recent report by the Equality Tribunal, the number of racist complaints has tripled in the past year while in most areas, there is an increase in the number of complaints, even though there has been a decrease in the number made by the Traveller community, which is welcome. Nevertheless, there are major areas of discrimination and it is a contradiction in terms to talk of dealing with these in a fair and non-discriminatory manner. The Minister is saying he will impose discriminatory procedures that will be non-discriminatory in effect.
I am disappointed at the inclusion of this section. The country must face up to the whole area of discrimination but the District Court is not the relevant arena in which to deal with it. The equal status legislation was enacted for this purpose, as is the Office of the Director of Equality Investigation and the Equality Authority. The Minister has said the applicant states to the European Union are beginning to look to Ireland as a template for their equal status legislation, yet the Bill seeks to derogate from it and in doing so will create a precedent for other service providers to follow. They will argue that if the drinks industry can insist that cases against it should be dealt with in the District Court, they should have the same facility.
There is a final issue lacking in the District Court. If a case comes before the District Court and it makes a determination, there is no report on it such as the report from the ODEI published today. If each case dealt with involved the production of a report, one would have that in the public arena and one could see exactly where the alleged discrimination took place, how it was dealt with and what was the outcome. That information will not be available to us if these cases end up in the District Court.
It is difficult to believe that Deputy Costello referred to this section as a puff of smoke. There has been outrageous overt abuse of the existing system. Publicans have continuously found themselves victimised and have been targeted intentionally because of the system which exists already. There is an air of unreality here. The Equality Authority has done itself an injustice by trying to defend the indefensible in this case. The publicans wanted this for a good reason, namely, because they were being victimised by the way the system operates. I cannot believe that people would try to deny that there have been obvious practical difficulties with this. My party would support the provision now included.
I agree with the Deputy that there are major areas of discrimination which still exist in this country, but he loses credibility if he cannot acknowledge that there has been widespread abuse of the present system. I have seen bartenders and publicans goaded and intimidated. The figures speak for themselves. It is badly in need of change and I completely support it.
Earlier today I launched the report of the Equality Tribunal for 2002. In the course of the remarks I delivered on that occasion I emphasised that the contents of section 19 of this Bill in no sense are intended to reflect on the Equality Tribunal or on its integrity, impartiality or professionalism in the way in which it carries out its functions. I want to reiterate that for this committee and for the benefit of the public who may read this debate in the future. As far as I am concerned, the Equality Tribunal, and its director, Ms Melanie Pine, and staff, do a very good job conscientiously. They have always so done and have upheld the law and behaved impartially in every instance. I want that to be clearly noted because many of the people who say this somehow is diminishing or belittling the Equality Authority, or reflects upon it, are creating a public image that that is so. By saying this damages the Equality Authority or lowers it in the eyes of the community or similar international bodies, many people are creating the very phenomenon which they claim exists, but it does not exist. The Equality Tribunal, as distinct from the Equality Authority, is a tribunal which is established to be impartial and professional, and has always been so. It has always applied the law as it saw it. I have no criticism to offer of the way in which it has carried out its functions and nothing that I am saying or doing in any way implies a criticism of it.
Deputy Costello inadvertently attributed to the Equality Tribunal a sense of disappointment with this section. The Equality Authority has expressed disappointment and it is free to do so. One of its functions is to comment on equality legislation. It is an independent body and is free to criticise the Minister for Justice, Equality and Law Reform and/or the Government if it feels that is appropriate. However, the Equality Tribunal has never criticised this measure and the director of the tribunal clearly indicated today that she took the law as she found it, and that is my strong view of how it should be.
I want to emphasise this point. In the case of a single transaction such as, to take an example which is not Traveller related, that of a member of the gay or lesbian community who is standing inebriated at the door of a licensed premises, if the licensee decides, on balance, to allow that person to enter the premises, then the licensee must have the following issue in the back of his or her mind, "Am I committing an offence under this new Bill? Am I allowing a person who is drunk onto my premises?" The licensee must decide if this person is just merry or if he or she is drunk, boisterous or whatever. If the licensee conspicuously does allow the drunk person onto the premises, he or she, if convicted, stands to have the premises closed by the District Court.
Looking at exactly the same person demanding exactly the same admission, at present under the law another little bulb is flashing in the publican's head asking the following questions, "If I refuse this person admission to my premises, will he or she claim that it is discrimination on the basis of sexual orientation, one of the nine prohibited grounds? Will the person bring me before the Equality Tribunal because the person knows I am aware he or she is gay?" This is the kind of issue which confronts people on a daily basis. All I am saying is that if somebody is responsible for making a decision one way or the other on that admission issue of whether the person was or was not drunk, or whether the person should or should not be granted admission, he or she should be answerable in one tribunal only for the decision. If it is criminal liability or if it was in bad faith and the person was merely dressing up an anti-gay policy by relying on an allegation of drunkenness, the person should be responsible to one body only for whatever decision he or she makes in those circumstances.
Broadening the debate away from gay people and including, for example, Travellers, we believe that it would be unfair to say to a publican that he or she can risk the wrath of the local garda sergeant by making an admission in this case and the sergeant may bring him or her to the District Court where his or her licence may be revoked. However, on the other hand he or she should be aware that, for instance, in the case of a Traveller in the same situation as the gay person I mentioned earlier, if he or she gets it wrong he or she will face a claim for compensation in the Equality Tribunal. If one wants a fair and operable law, one has one tribunal which makes decisions of this kind and which brings to bear its experience of the world and common sense to this single issue, and one does not make people amenable for the same decision to two different tribunals. As a Deputy stated in the Dáil in a good analogy, it is as if there was a linesman on the side of the pitch blowing a whistle and saying that a tackle was dangerous and the referee having a whistle in his hand about to make a different decision on exactly the same transaction. One cannot have two referees for the same decision as that is not desirable.
If a Traveller, a gay person or a person from an ethnic or religious minority is denied a service anywhere else, there is no District Court dimension to it. If one walks into a book store or a department store on Dawson Street or Grafton Street, the owners do not commit an offence by allowing one to walk in drunk or whatever. Such stores are not liable to be closed because of an admission policy. Only licensed premises will be subject to this strict control of the state of sobriety of patrons and the public order implications involved. The owners of Brown Thomas do not commit a criminal offence if there is disorderly behaviour among its customers. The owners of a theatre that is not licensed would not commit an offence by allowing somebody to be disorderly in the theatre.
It is only in the context of licensed premises that the District Court has this huge and extensive power to close licensed premises and to remove a person's livelihood because of the way he or she conducts his or her business and whether he or she allows disorder, drunkenness or whatever on his or her premises. It is only in the case of alcohol that we accord to the District Court this huge supervisory power, which entails revocation of licence on the one hand and closure orders, fines and criminal procedures on the other. The District Court decides on hours for extensions and so on in any case. It has full disciplinary control over licensed premises. It is not a precedent that will apply to shop owners, travel agents or any other group of employers who are liable to be brought to book before the Equality Tribunal and they will not be able to point out what happened regarding licensed premises because they cannot say the District Court regulates what happens on their premises.
I, therefore, do not accept this is a precedent nor do I accept the argument that this is the beginning of a slippery slope. This is an intelligent approach to a problem that has arisen, which is that licensees felt helpless because the same decision exposed them to two alternative sets of sanctions depending on how they made up their minds.
Deputy Costello stated that temporary closures and revocation of licences are evidence of a guilty conscience and it is window dressing.
That is a good description of what the Minister is doing.
Let us analyse that suggestion. Discrimination on the nine grounds in regard to admission to a licensed premises will be a matter on which the District Court will have teeth, which will be stronger than those the Equality Tribunal had. They will be just as strong in terms of awarding compensation and, in addition, they will have the deterrent effect in that, as part of the process, a premises can be closed on a temporary basis. A member of the media asked me earlier why some publicans refuse Travellers. I replied that if they think they can do that in future, they will not hold on to their licences for very long because under this legislation a publican who says "No Travellers" is giving clear grounds to an interested party to apply to the District Court to revoke his or her licence. Deliberate and conscious discriminatory behaviour is a ground for removing a licence from a publican in its entirety.
If somebody says "No blacks, no gays, no Travellers" in regard to a licensed premises, he or she faces the loss of his or her pub in its entirety and that is serious.
It is incredible that publicans sought this provision.
I assure the Deputy in the past number of days since this legislation was carefully read in certain quarters there has been much questioning about closures and licences.
We wanted the other Minister.
It has been stated this section was inserted at the behest of publicans but that is not so. Members of the licensed trade are beginning to realise the consequences of this section will be much more serious than anything the Equality Tribunal could have done to them if they engage in discriminatory behaviour.
The Equality Authority will be given a strong role under section 19(6) to assist and become involved in the processing of cases where somebody claims he or she has been the subject of discrimination. This new power will enable the authority, where it comes across a pub that is blatantly discriminatory, to assist a person who wants to make a claim for compensation, to bring about a closure of the premises on a temporary basis or oppose the renewal of the licence.
This is a balanced measure. We have removed the awarding of compensation from the Equality Tribunal in regard to admission and service issues in pubs but we have not done so on the basis that this is an inducement to publicans to accept the other onerous responsibilities of the legislation. The section contains serious deterrent powers that have never existed in law and they will be effective. We have provided a system for helping people to make these cases under the auspices of the Equality Authority. This strengthens the law and does not weaken it. Above all, it makes the law much fairer.
It has been argued the authority gives reasons for its decisions but that was anticipated by the draftsman. Section 19(5) states, "An order under this section may, if the Court thinks fit, include a statement of the reasons for its decision and shall, if any of the parties so request, include such a statement." All the reasoning of the District Court judge will have to be stated clearly if he or she awards compensation or does not do so.
That is a new function for the District Court. Judges will have to state reasons.
There is jurisprudence but, generally, a District Court judge is obliged to state reasons that would enable him or her to be judicially reviewed. They cannot say guilty or not guilty in complicated cases. This is the first time that either side in a District Court case will be in a position to require a reasoned judgment in respect of an order made. That is a major step forward.
I emphasise that if I thought for a minute this was a way for the licensed trade to get at the Equality Tribunal or a quid pro quo for the trade, I would not tender a Bill in this form. All those who are worked up about this subject ignore the fact that the Bill introduces heavy penalties for allowing disorder and drunkenness on premises. Any admissions decision in this context should be decided by one tribunal which is aware of publicans' problems and deficiencies. Therefore and despite the fact that a number of organisations have come out against this amendment, I am confident that the majority of the people think a fair balance is being struck and that it is not——
The populist Minister again.
No, it is not populism. I thought I was elected to the Dáil as part of a democratic assembly to make laws which were fair and in accordance with the wishes of the people.
It was to keep an eye on Fianna Fáil, if I remember rightly.
Is there anyone on whom I can call who is reasonable, fair and equitable? I call Deputy Costello.
I wish to reply to a few remarks the Minister made. I hope I did not say, because I did not intend to, that the Office of the Director of Equality Investigations had criticised the legislation.
The Deputy meant the Equality Authority, and it has criticised it.
There has been criticism by the authority. The people criticised by the ODEI, the Equality Tribunal, were members of the Commission on Liquor Licensing.
Is it that we are not hearing them?
The Minister obviously was not listening. In a statement by Melanie Pine, director of the Equality Tribunal this afternoon, she stated:
Our job as an impartial body [the ODEI] naturally is to work within whatever legislation is in force. While it's water under the bridge now, I would point out that the Report of the Commission on Liquor Licensing repeated a number of allegations made to it that we did not correctly observe fair procedures, without offering us an opportunity to rebut those allegations. Naturally we fully agree with the Commission that due process is vital - and at all stages we do our utmost to ensure that due process applies and that accessibility, while important, is not at the expense of fairness.
I do not think she said those words, but they are included in her speech which was delivered and printed.
It was also issued to the media. The Minister did not hear the ODEI. That reflects its experience.
The Minister made a commitment that he would introduce legislation on judicial ethics. The District Court is the court of summary jurisdiction and there has been considerable criticism recently of remarks made by judges of the District Court that were described by the people affected, by others and by organisations representing different groups as quite racist in tenor and tone. Some of the judges have apologised for the remarks they made. I do not wish to cast aspersions on the District Court system but, if cases of discrimination are to be transferred to the court, the issue of judicial ethics must be paramount. Will the Minister indicate when he will produce the judicial ethics legislation or guidelines?
The District Court will deal with some issues of discrimination, namely, those defined in the Bill, but not with others. The Minister states that responsibility for judgment on cases concerning admission to public houses is being transferred to the District Court because it deals with all matters relating to intoxicating liquor. The Equality Tribunal, however, deals with some areas of discrimination, and now so too will the District Court. Two bodies will deal with elements of the same issue. This is an anomaly although, as Deputy Ó Snodaigh pointed out, certain bodies already deal with two areas and it is not unknown in the jurisprudence area. For example, the Labour Court and the normal courts deal with unfair dismissal issues, and these are dealt with at the same time in two different forums. It is not unknown for this to happen.
The Minister is creating a situation where the District Court will be expected to deal exclusively with this issue. It is unlikely in practice that the massive tower of protections the Minister has constructed will come into play. He will have already created a new forum which will deal with the issue and that will be the beginning and end of it. It is a shame because we are coming to grips with equality issues. It has been a huge difficulty for the country to do this because we were isolated for so long. We are trying to deal with equality issues and the Equality Tribunal is the best forum for doing that. It should be the forum for all equality issues.
The Minister wants to give responsibility for dealing with issues relating to intoxicating liquor to the District Court, but it only operates in the area of licensing and, even then, is not the only body to operate in this area. The Revenue Commissioners provide certificates. Licences for the sale of alcohol are provided without the need to involve the District Court. The Minister has not felt the need to consolidate these areas within the remit of the court. He has also created a new area where the District Court is not involved in the granting of ministerial licences to sporting bodies. A false justification is being created that, because the District Court deals with issues of liquor licensing, it will be given responsibility for dealing with the issue of discrimination in this area as well.
There is no basis for the link the Minister makes and I reject it. In his own words, it is window dressing for something that has been a major concern for the publican lobby. It wanted these cases removed from the remit of the ODEI and placed under the jurisdiction of the District Court. I know that because I was lobbied, as were all Members. Publicans have been lobbying on this issue for a long time and they made their submission to the Commission on Liquor Licensing. The Minister accepted it but added his protections. These will be of little value because the horse has bolted and the issue has already been moved to another forum where they will not make much difference.
The pity is that this point can be lost in the argument in which Deputy Deasy, among others, got caught up, that this is a straight conflict between publicans and the Traveller community. It is not; it is a question of discrimination in all its forms and of excess, and that should be dealt with in a proper forum. If we make it a showdown between the publicans and the Traveller community, we will exacerbate the situation. If the Traveller community believes the section has been cobbled together for the purpose of penalising it in some fashion, the end result will be greater antipathy in existing relations. Terrible activities have taken place in public houses that could not possibly be condoned. The situation will probably degenerate because of Travellers' belief that they are now being discriminated against in law and publicans are behind the introduction of the legislation which effectively targets Travellers.
The mediation service, which is provided by the ODEI and is becoming a major part of its function, is the ideal forum for dealing with this unacceptable activity which is taking place in some rural areas rather than transferring it to a forum where there is a perception that a fair hearing will not be given.
I listened with interest to the Minister's story about referees and the number of people involved in the debate on the District Court and the Equality Tribunal. From my experience of attending football matches in Croke Park, I constantly see the referee consulting linesmen or umpires on the pitch and likewise in Tolka Park. The umpires are constantly consulted by the referee so that he can make a properly informed decision.
Regarding the debate on section 19, did the Minister, who has a very good legal mind, ever consult a person who was discriminated against? Did he ever try to understand the hurt these people feel, whether they be Travellers, black people or those with a disability? I have a great deal of personal experience in this regard, especially concerning people with disabilities. Sometimes people involved in the legal profession and justice issues should become involved in the nitty gritty of discrimination because it is a serious issue which requires a serious response. I welcome the Minister's comments about the District Court having teeth. However, why do Travellers and disability groups express concern about the District Court?
Regarding anti-social behaviour, I have frequented a pub for 20 years where Travellers were served and it was never an issue. If anyone caused trouble they were barred and there was no second chance. That was the reality and everyone obeyed the rules. I also know many pubs where the same Travellers will not be served.
I had the experience of trying to organise a residents' meeting one night in a hotel on the Malahide Road. When it was discovered that I was meeting a group of Travellers and residents, the booking was cancelled. I experienced walking up to the door of the hotel with Christine Ward, Ann Joyce's sister, who is very involved in Travellers' rights, and being told she was not allowed in because she was a Traveller. I presume that day has gone, but I will never forget the hurt in her eyes and the humiliation at the door. I was allowed into the hotel and she was not because she was a Traveller. However, I accept we have moved on from that.
I do not want discrimination to be linked with anti-social behaviour. If a Traveller or settled person misbehaves, the law should apply equally. My problem is that, if there is a row in a pub in Dublin among a group of settled people it will not even make the news. However, if there is a row among a group of Travellers, it will be reported in the media, including RTE, and in the Dáil and Seanad. The Mayo incident was all over the national media. I address this question not just to us as legislators but also to our friends in the media - where is their respect for equality?
We need specialist people involved in the equality issue. I have tremendous regard for people like Niall Crowley from the Equality Authority. They have made a major contribution to society by bringing people along and tackling discrimination and they must be listened to. Sometimes the views expressed may be minority ones but, when one is dealing with injustice, inequality and discrimination, one must bite the bullet and be tough. I have concerns about section 19 and the District Court in the context of equality. The Equality Tribunal is the best forum in which to deal with discrimination.
It is a pity that Deputy Deasy has left because I was going to address the latest tribunal report. The reports for the first two years give the lie to the point he made. There were 45 successful recommendations and the highest award to a licensed premises was in excess of €3,000. One case involving Travellers was higher than the family status claim at €2,539. The average award by the tribunal during that period was €1,144. It gives the lie to Deputy Deasy's point that the licensed trade is being fleeced or is under threat.
One of the advantages of the Equality Tribunal is that there was mediation. I have been involved in two cases. People who claimed they were discriminated against came to me and asked if I would write a letter seeking mediation on their behalf. The process in the District Court is different. Mediation means there is less cost involved because one does not have to employ barristers, solicitors and so on. The Minister said that the Equality Authority will have the ability to assist in cases coming before the District Court. The problem is that there is no reference to additional funding for the Equality Authority to allow it to carry on the task. If the Minister is going down that road, perhaps we will be able to accept it.
I can understand where a large number of non-governmental organisations are coming from, including Amnesty International, Age Action Ireland, the Irish Council for Civil Liberties and the National Women's Council. Are we saying that all these organisations are wrong and that the Minister is the only one who is right? I do not think so.
That is the Deputy's opinion.
The tribunal, which has been in place for three years, is just getting to grips with this issue and suddenly it is ended. All the expertise available in recent years has been to no avail. The issues are being dealt with in the District Court which, as I said on Second Stage, is already over-stretched. The courts system in Ireland is already dealing with too many issues. We must try to facilitate the speeding up of the District Court system. We should not over-burden it with additional tasks, including that of making decisions on this issue.
The other problem is that, while the Bill was introduced to curb the excessive consumption of alcohol and enhance public order, we are now discussing the issue of discrimination. There is an example in one of the submissions and it would be interesting to hear how the Minister responds to it. If people are discriminated against by a restaurant they can go to the Equality Tribunal but if the restaurant has a licence to sell intoxicating liquor they will have to go to the District Court. The logic defies me.
The other problem with the shift is that while the Equality Tribunal has an investigative role, the District Court does not. Complainants, or those complained against, will not be able to avail of the legal advice of equality officers or mediation facilities. The Equality Tribunal system is simple, understandable and less formal and is accessible to most people. There is also a degree of uniformity among equality officers. There is not the same variance as among judges of the District Court, where while one judge will impose a heavy sentence while another will impose a light one. For this reason, I urge the Minister to leave well enough alone and let the matter rest with the experts. If need be, when he codifies everything in a year or two or three, it could be looked at again. However, I do not think we should toy with a system which guarantees rights and has been effective up to now.
Everyone seems to forget that under the Equal Status Act the District Court is given an important role. We know that the Equality Authority has recently decided to apply to the District Court for a declaration that Portmarnock Golf Club is a discriminating club. From where, therefore, does the argument about expertise suddenly arise and why is it considered that the District Court is inadequate to decide equality issues? While I believe there are High Court proceedings which may affect whether the Portmarnock case is brought, if it proceeds it will be before a District Court judge and he will have to decide any such application with regard to section 8. I remind Members that in regard to discriminating clubs it states:
Any person, including the Authority, . . . may, on application to the District Court (in this section referred to as "the Court"), request that the Court make a determination as to whether a club is a discriminating club.
It goes on to state:
After considering the representations, the Court shall-
(a) make an order in writing setting out its determination as to whether or not the club is a discriminating club, and
(b) cause a copy of that order to be transmitted to the Minister.
The suggestion that the District Court is somehow an unsuitable place to decide equality matters is wrong. The court has jurisdiction, under the Equal Status Act, to make a serious determination and to say in relation to a sports club whether it is a discriminating club. The consequence for that club is that it would or could lose its capacity to serve drink if the order is made against it. The District Court is not some court which, under the equal status laws, is a stranger to the whole event and is somehow floating in the nowhere. It is the primary court for determining whether clubs are discriminatory or not.
Deputy Ó Snodaigh made the point that for an unlicensed restaurant the right of redress lies with the Equality Authority whereas for a licensed one it lies with the District Court. My answer to that is "so what?" If someone runs a restaurant which is unlicensed no offence is committed by allowing somebody to be drunk on the premises, or by allowing disorder on the premises in the way provided for in the Bill, nor does the proprietor face revocation of his licence at the end of any year based on whether the food was good or anything like that. The world does not work that way. Licensed premises are special because they are subject to intense control from a number of directions.
I understand Deputy McGrath's point about feeding discrimination and I have no difficulty with it. In such a case, if it happened tomorrow - if a meeting was booked in a particular place and the booking was revoked - one would seek redress through the Equality Tribunal. Likewise, if Travellers book a wedding which is subsequently cancelled by a hotel on the basis that it never knew they were Travellers, it is to the Equality Authority they would go.
Here, we are only concerned with the issue of admission and service in licensed premises. It is important that we focus on that and do not talk about whether a Traveller's wedding was cancelled. For the purpose of this section, discrimination does not include discrimination in the provision of accommodation or of any services or amenities in regard to accommodation, or ceasing to provide accommodation or services or amenities. Anything to do with staying in a hotel, not staying in a hotel, and similar issues are not covered by this. Discrimination in respect of a hotel which says "No Travellers" in regard to going into the hotel to have a meal in the restaurant, or booking a meal in advance or having a party or whatever, is still covered by the Equality Tribunal.
Deputy Ó Snodaigh asked what this provision was doing in the middle of the Bill. It is here because we, for the first time in recent years, are addressing the issue of entry to licensed premises, drunkenness and public order on licensed premises. We are putting in place tough penalties for those who make wrong decisions in regard to admission and service on their licensed premises. We are also putting in place tough remedies against publicans. On conviction of making a wrong decision in regard to service or order issues on their premises they can be closed. As part of this legislative package, a person should not be in a position when making a decision on service or admission of saying, "The District Court will hammer me if I let this man in but some other tribunal will hammer me, if it takes a different view of the transaction, and will say I was discriminatory." All we are doing is removing this dilemma. I do not see a big problem with this.
The question was raised regarding how the Minister is the only person who stands up for this position and yet there are nine or ten NGOs on the other side. Amnesty International is entitled to its view.
But they are wrong.
When I was a member of Amnesty International it was a body concerned with the rights of prisoners of conscience. It has broadened its remit and members visited me recently and explained that to me. It has now become, in its own mind, a general supervisory body in regard to all rights, economic, social, etc. There are NGOs which I consider to be of equal, if not greater importance. Members of the Dáil who have the authority of a democratic mandate obtained through their membership of an NGO, called a political party, are entitled to have their views considered. No matter how many people sign round robin letters on these issues, I maintain that the average Joe or Josephine Soap, or Seán or Mary Citizen, will agree with me on this issue, not out of prejudice but because it represents a sensible balance. That is my point.
We are also entitled to the status of elected NGOs.
We have debated this matter for over an hour. I invite a brief summing up from whichever Deputy wishes to do so.
A summing up is not necessary - I have just two points. The District Court does not have an investigative role, as such, nor does it have a mediation role. Much of what we have been discussing is best dealt with through mediation. Accordingly, this provision may well aggravate the situation. The court does not have a proper reporting role, although it may provide some report if requested. Also, the cost of proceedings in the District Court is much greater than in the Equality Tribunal. The Bill states that the Equality Authority can provide assistance as it thinks fit. Does that include financial assistance to employ lawyers and, if so, to what extent?
Those services are already provided in relation to the Equality Tribunal.
Yes.
Deputy Ó Snodaigh also mentioned that point - it is not only a matter of money.
How far can the Equality Authority go in providing assistance, particularly in financial terms? My final point is in relation to judicial ethics. Highly sensitive matters of discrimination in terms of admission will now be given to the District Court. In Templemore, where we were supposed to visit today, we know the Garda has put in place a race proofing and equality proofing type of training. Has the Judiciary taken any corresponding steps? The Minister referred to legislation on judicial ethics. Will he indicate if he will act in that regard, in parallel to this Bill?
Earlier today, the Minister mentioned the requirement that refugee appeals commissioners have to undergo training before they proceed to deal with cases. I invite the Minister to sum up briefly.
As matters now stand, the Equality Authority is entitled to give legal assistance to a person to make a claim, before the District Court, that a club is acting in a discriminatory manner. The relevant provision states:
Where the Authority is satisfied that the case to which the request relates raises a matter of principle, or it appears to it that it is not reasonable to expect the person making the request immediately to present the case before the court without assistance, the Authority may, at any stage, provide such assistance to the person in such form as it thinks fit.
I have no doubt that involves providing legal aid, effectively in the form of a lawyer or whatever.
In relation to Deputy Ó Snodaigh's question, does the authority have the resources to do that?
It has a very substantial budget. I do not immediately recollect the precise figure, but it runs to millions of euro. It intended to bring Portmarnock Golf Club before the District Court. While it does not have a limitless budget, it has funds for this purpose and will have to make its own choices as to the extent of its involvement in such cases. The service is currently rendered out of the existing resources, both with regard to recourse to the District Court, as provided for under section 8(3) of the Equal Status Act, and also in assisting people in their dealings with the Equality Tribunal.
With regard to Deputy Costello's question concerning judicial ethics, legislation on this is yet another of my priorities. I am considering draft legislation, on which I wish to consult the Judiciary. I will then bring it to Government in the near future. As the Deputy will appreciate, a number of Bills from my Department have gone through the Houses already this year.
Our immediate task is to get through this Bill.
Exactly. Considerable ground has been covered in recent legislation.
Under the provisions of this Bill, all of the cases will now go to the District Court. That will involve those concerned having to retain solicitors and so on.
I strongly repudiate that. The District Court operates the simplest possible procedures. One does not need a lawyer. As is evident from the Dáil debates at the time, the District Court was constituted as the people's court. For anybody who wishes to institute proceedings, the District Court Clerk will assist in the preparation of documentation and the person can represent himself or herself in court.
The concern would be that the publicans will be represented by lawyers.
That may be so, but lawyers can only go so far. In my view, people who appear in person before the court, without legal representation, often get a better hearing for their case than if they were represented by lawyers.
I can vouch for that. My point was simply that most people feel more comfortable being represented by a solicitor in court. Given the informal basis on which the tribunal operates, people did not need to have solicitors, but it is a different matter in court.
It is noteworthy that in 2000, lawyers were present in one-third of cases before the Equality Tribunal. Evidently, they cannot be kept out.
Question put and declared carried.
SECTION 20.
I move amendment No. 39:
In page 21, subsection (2), line 20, after "period" to insert "after 10.30 a.m. (12.30 a.m. on a Sunday)".
This is, essentially, a drafting amendment to clarify the definition of "reduced price" in that section. Its purpose is to ban "happy hours", but it will not preclude charging higher prices later in the evening or during a special exemption order. The amendment clarifies that the day referred to in the subsection is the day beginning at 10.30 a.m., that is, prices charged in the earlier portion of that day. If that were not the case, a price charged at the previous midnight or at 2 a.m. would be the benchmark against which it would be judged.
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21.
Amendments Nos. 40 to 42, inclusive, are related and may be discussed together by agreement.
I move amendment No. 40:
In page 21, subsection (2), line 40, to delete "grant" and substitute "issue".
These are purely terminological changes - the substitution of "grant" for "issue".
Amendment agreed to.
I move amendment No. 41:
In page 22, subsection (4), line 3, to delete "granted" and substitute "issued".
Amendment agreed to.
I move amendment No. 42:
In page 22, subsection (5), line 14, to delete "granted" and substitute "issued".
Amendment agreed to.
I move amendment No. 43:
In page 22, between lines 19 and 20, to insert the following subsection:
"(7) (a) The definition of ’licence’ in section 1094(1), as amended, of the said Act of 1997 is further amended-
(i) by the substitution of '1992 for '1992, and' in paragraph (m) and of ’1910, and’ for ’1910;’ in paragraph (n), and
(ii) by insertion of the following paragraph after paragraph (n):
'(o) section 21 of the Intoxicating Liquor Act 2003;’.
(b) The definition of ’specified date’ in the said section 1094(1) is amended by the substitution of ’(o)’ for ’(n)’.”.
Section 21 already provides that a tax clearance certificate is required before a licence for a national sporting arena will be issued or renewed by the Revenue Commissioners. This is a technical amendment to the Taxes (Consolidation) Act 1997, to allow for the issuance of a tax clearance certificate.
Amendment agreed to.
Question proposed: "That section 21, as amended, stand part of the Bill."
As I stated earlier, it is normally the District Court which deals with licensing. In relation to the new licence category to be established, covering the national sporting arena, it is the Minister who may issue a certificate approving of the issue of a licence.
That is true. Mainly, it is a court process and the Revenue Commissioners issue a licence. However, the Minister for Arts, Sport and Tourism has similar powers under the National Cultural Institutions Act in relation to national museums and galleries provided for in that Act.
This is the only licence that the Minister for Justice, Equality and Law Reform is entitled to issue.
It is not the Minister for Justice, Equality and Law Reform, but the Minister for Arts, Sport and Tourism, DeputyO'Donoghue, who will issue the licences.
All right.
The Revenue Commissioners issue the licence, having been given a certificate by the Minister for Arts, Sport and Tourism to do so.
The Minister issues the certificate and the Revenue Commissioners issue the licence.
Yes.
Will the Revenue Commissioners issue a full licence?
Yes.
I thought there was a distinction between the licence that could be issued by the Revenue Commissioners and the licence that could be issued by the District Court. I thought the licences issued by the Revenue Commissioners were limited to wine and beer and that full licences, which include spirits, had to be issued by the District Court.
No, I do not think that is the case. The system described by the Deputy used to be in operation at one stage, but the Revenue Commissioners can now issue a licence on foot of a certificate.
I am certain that the Revenue Commissioners can issue a licence, but I am not sure that it is a full licence. Perhaps it can be checked.
I will not argue the toss as the Revenue Commissioners will be able to issue a licence under this legislation.
The Minister is breaking new ground all over the place.
I do not think so. This section is modelled on the National Cultural Institutions Act, which allows the National Museum, for example, to acquire a licence.
It is a relatively recent Act.
Can I make a further point about the sale of liquor in the context of the new licensing arrangements? Will the sale of alcohol in Croke Park, for example, be much the same as it is in American stadiums where one can buy a bottle of beer? Will the arrangements at sporting venues relate only to private functions in specific areas?
I spoke to the Minister for Arts, Sport and Tourism about this matter when the proposal was being prepared. The Bill's provisions relate to specified areas of the stadium. The Minister and I are adamant that we will not allow people to wander around the stands with plastic beer cups, as happens elsewhere. We are not attracted by such an idea at all.
Alcohol will be permitted in prescribed areas of the arena.
Yes.
Does the arena include the whole lot?
Yes.
It does not include the playing ground. The sale of alcohol will be permitted in a "period beginning at the time members of the public are permitted to attend the event and ending one hour after its conclusion". Does that mean that it has to be a public event and that it cannot be a separate event?
No. The definition of "event" speaks of "an event, whether of a sporting or non-sporting nature, which is held at a designated national sporting arena and involves the use of some or all of the playing area or pitch in the arena". The next section defines a "function" as "a conference, exhibition, seminar or reception which is held at a designated national sporting arena but does not involve the use of the playing area or pitch". There is a difference.
The Bill refers to the members of the public attending the event rather than those attending the playing area.
It is anticipated, for example, that certain portions of Croke Park will be used by the State for receptions during Ireland's Presidency of the EU.
Deputy Costello might be invited to such events, as they will be taking place in his constituency.
It is an attractive proposition. The authorities in question generally find a reason not to give me tickets for all-Irelandfinals.
The Deputy could promise to oppose this legislation if he is not giventickets.
Question put and declared carried.
SECTION 22.
Amendment No. 44, which relates to advertising, has already been discussed with amendment No. 10.
I move amendment No. 44:
In page 22, subsection (1), between lines 28 and 29, to insert the following:
"(a) prohibiting or restricting the advertising, sale, display or marketing of intoxicating liquor or products connected therewith,”.
I have not withdrawn this amendment.
Will the Deputy withdraw it?
I thought we had discussed this matter.
I do not intend to discuss it again but I will certainly not withdraw it, as it is eminently reasonable.
Amendment put and declared lost.
Section 22 agreed to.
Sections 23 and 24 agreed to.
SECTION 25.
Amendment No. 45 has already been discussed with amendment No. 29.
I move amendment No. 45:
In page 23, lines 22 and 23, to delete "subsections (2) and (3)" and substitute "subsection (2), (3) or (4)".
Amendment agreed to.
I move amendment No. 46:
In page 23, line 29, after "discrimination" to insert the following:
", provided that
(i) such non-exercise is in accordance with a policy refusing to allow persons under 18 to be in the bar of those premises at the times, or in the circumstances, specified in the policy,
(ii) a notice setting out the policy is displayed in a conspicuous place in or on the exterior of the premises, and
(iii) the policy is implemented in good faith.".
The Deputy is suggesting, in effect, that the policy of a licensed premises with regard to children should be stated in a notice on the premises. I understand the reason for this proposal, but the Government considers that it is not such a good idea because a licensed premises may have an inflexible policy. One may decide on the day of a match, for example, that children should or should not be on the premises. One might change's one's policy on a given day. It would be somewhat inflexible to say that decisions in relation to children must be made on the basis of something that was posted on a notice board on the premises. One might decide, making up the rules as one goes along, that one will not allow children to be on the premises on a certain afternoon. This section of the Bill will not allow discriminatory behaviour, but I consider that licensees have to be given the flexibility to decide, on a purely ad hoc basis, that they will not allow children to be present on a portion of the premises.
Would it not be better for such decisions to be taken on a policy basis and for such a policy to specify the times and circumstances of exclusion, rather than going down the road of individualised discrimination?
I believe it would be better not to adopt the approach advocated by the Deputy. It is a matter of judgment, but I believe that licensees have to make a living and to take decisions which can vary by reference to the real situations with which they are confronted. I do not want somebody to be unable to pursue a perfectly reasonable policy on a given afternoon because they have not put up a printed notice, describing the policy of the day, on their premises.
Is it not possible for a general policy to be placed on public display? One will not have a——
I should also say that under the Equal Status Act, an action taken in good faith by the holder of a licence, which might otherwise constitute discrimination, does not constitute discrimination if it relates to ensuring compliance with the provisions of the Licensing Acts 1833 - 1999. A policy is not seen as discriminatory if it is decided on in good faith. A decision made in bad faith is not covered by the exemption in the Equal Status Act 2000.
That seems to strengthen my position. Policy guidelines should be made available to ensure that decisions are made in good faith. Licensees should have to list the circumstances in which discrimination or a refusal may take place.
I wish to give an example. A licensee might not wish to have children on the premises if a large crowd is present, for example if a match is being shown on television. He or she might not object to the presence of children on days when the premises are less crowded. It would be unduly onerous and inflexible to require licensees to display a policy setting out every circumstance in which persons under the age of 18 are or are not allowed on the premises. One might decide that one does not want roaring and shouting children to be present if there is a party of elderly people on the premises, for example. It is better not to regulate this area. If this matter has caused problems, we will deal with it in the Bill that will be brought forward in 2004.
That is okay.
More legislation has been promised.
Amendment, by leave, withdrawn.
Question proposed: "That section 25, as amended, stand part of the Bill."
The wording of my last amendment was adapted from the new subsection 4(a), which is being added by section 25 of this Bill to section 15 of the Equal Status Act 2000. It relates to a notice outlining the policy of a licensee in respect of prohibiting those over the age of 18 from being on the premises. This is a new provision that is being introduced. I specifically used the text of subsections (b) and (c) in my amendment.
The Minister is agreeing to allow a policy forbidding a person over the age of 18 years or some other category of person from a premises, provided the policy is displayed in a conspicuous place. In such circumstances, the refusal to sell intoxicating liquor would not constitute discrimination on age grounds, in other words, the method by which one avoids discrimination is by having a policy. In one sense, the Minister is opposing the argument I made on the previous amendment.
I also object to this provision for a more fundamental reason. The age of 18 years is the cut-off point for adulthood. A person of that age in the Minister's constituency is entitled to elect him to the Dáil to run the country. It is also the general threshold at which adult behaviour begins. As a national Parliament, we should legislate for fundamental matters of this nature, rather than handing over responsibility for determining them to a sectoral group which may decide, even if it prints its policy conspicuously, to discriminate on age grounds. This is, effectively, what the section does.
I recall an occasion when the Minister strongly defended the right of a person to have a pint at the age of 18, be treated properly as an adult and not suffer discrimination. Of all the provisions in the Bill, the decision to give publicans the right to discriminate against people once they have reached the age of 18 is the most difficult one to defend. Children are a different category because public houses are in many ways and at certain times not fit and proper places for them. However, once one has reached the age of 18 it is wrong to introduce discrimination, particularly by handing over discretion on how one will discriminate to individual publicans. It is our job to decide these issues. The House should decide on the age at which one may drink alcohol and its decision should be applied across the State.
I agree with the Deputy, who has covered most of the arguments. When a person reaches 18 years of age he or she is entitled to visit a licensed premises, buy a drink and enjoy it, albeit on condition, once the Bill is enacted, that persons aged 18 to 21 years carry a designated age card. We should not reinstate a provision such as this. When it applied in the past, pubs arbitrarily changed the age at which they would admit patrons. In one pub the age of admittance would be 18 years, while in another it would be 25 years and in some cases doorpersons insisted that one was over 30 years. While the last restriction would not affect many Members now, I remember being refused admittance on occasion despite having reached the legal age of entitlement to be in a pub and enjoy a drink. Part IV should be struck out as it does not add to the legislation in any way.
I believe, as do a great number of people, that some decisions taken in good faith by many responsible people in the licensed trade should be supported. For example, some off-licensees in good faith pursue what would otherwise be a discriminatory policy in relation to the supply of spirits to young people. We should not penalise them for acting in good faith or adopting a policy which is not socially harmful. To attract the protection of the section they must act in good faith. The market will dictate most of these matters. No publican will be so unrealistic as to refuse to serve persons aged 18, 19 or 20 years as this group has significant disposable income.
Question put and declared carried.
Amendments Nos. 47 to 49, inclusive, not moved.
Question proposed: "That the Title be the Title to the Bill."
We oppose the legislation.
We are discussing the Title.
It is a bad Title. The use of the words "Intoxicating Liquor" calls to mind an American speak-easy.
Question put and agreed to.
Bill reported with amendments.
Should we not have a general discussion on the Bill?
No, we deal only with amendments on Committee Stage.
We will discuss the Bill on Fifth Stage.