Intoxicating Liquor Bill 2008
First Stage: 4 Jun 2008
Oireachtas Link: http://www.oireachtas.ie/viewdoc.asp?DocID=9577
Second Stage Debate: 09/07/2008
Second Stage Debate - 09/07/08
Senator Ivana Bacik: I welcome the Minister of State to the House and welcome the opportunity to speak on this Bill. More comprehensive legislation on the sale of alcohol is promised for the autumn but this Bill represents some important policy principles. Unfortunately, for a number of reasons that I will go through, it is a missed opportunity in terms of tackling problems associated with alcohol abuse. This point was made on earlier occasions but it is a pity that the Bill is to be rushed through during the last week of this session. There is no case for urgency on the Bill, particularly as more comprehensive legislation is due in the autumn. It is a shame that we are to rush it like this.
Others have gone into the harm caused by the abuse of alcohol through public order issues and private heartache in relationships. The question is how best to tackle this from a legislative perspective and this Bill, unfortunately, represents no more than a knee-jerk, tokenistic attempt to tackle the problem. I do not believe that restricting pub and nightclub opening hours and creating more criminal justice public order offences will tackle problems associated with the abuse of alcohol. Nor will they tackle the culture of drinking in Ireland, which has tended to be a culture of binge drinking and which has been compounded by restrictive opening hours in the past. Laws relating to holy hour and so on are, thankfully, no longer part of the system. It would be far better to address the problems associated with alcohol abuse through preventative and educational means, rather than through criminal offences and the restriction of opening times.
If one looks at the history of licensing laws in Ireland one will see that from the 17th century the motivation behind them was to control excessive drinking by controlling what was described in an old statute as “the needless multitudes of ale houses”. It was felt that these should be reduced “to fewer number, to more fit persons and to more convenient places”. We can see that this rather paternalistic approach to controlling alcohol consumption is still borne out in our current system of licensing laws. While any person may open a sweet shop or, indeed, a massage parlour, a licence is still required for any person who wishes to sell alcohol. The granting of new publican licences was prohibited in 1902 in an attempt to reduce the number of pubs in the country.
The result of this original motivation has developed into the complex system of licensing laws we operate with today whereby nightclubs operate under a sort of theatre licence that is not really suited to the modern establishments they constitute. Changes routinely take place nowadays to the opening hours of pubs and nightclubs and exemptions are granted to provide for longer opening hours. This is a rather unsatisfactory approach to regulating alcohol consumption and it has resulted in the unfortunate presence of a very small number of large, so-called super pubs, particularly in the centre of Dublin. They tend to close at the same time, due to the current laws, and this involves large numbers of people spilling onto the street simultaneously. This causes many public order issues, public transport difficulties and so on. As others said, it would be far better to introduce a system of sequential closing times, enabling some venues to stay open later than others. This would ensure people do not come onto the street at the same time. Members have referred to “staggered closing times” but this is a somewhat unfortunate phrase in the context of alcohol consumption. “Sequential closing times” might be a more tactful way of putting it.
. . .
We must be careful not to fall into the trap of youth bashing. Certain contributors have railed at length about the youth of today but I do not believe they are any more prone to excessive drinking than the youth of other generations. There always has been alcohol abuse, among all age groups, and it was a much more serious problem before drink driving legislation was enacted. Most Members will recognise that younger people are more likely not to drink than older generations if they are driving. There are obviously some exceptions but this is generally the case.
We need to consider the effect of licensing laws and look at a much bigger picture. I hope we can do so in the autumn. We should consider trying to create a more — dare I say — European or cosmopolitan culture of alcohol consumption. I agreed with the failed initiative on café bars of former Minister for Justice, Equality and Law Reform, Michael McDowell, who suggested liberalising the licensing regime to ensure places that sold food could also sell alcohol for longer durations. This would encourage smaller venues to open. I take on board Senator Ó Murchú's point on B&Bs. It would be welcome if small family-run establishments were allowed to serve alcohol in a civilised fashion, such that they would be very much in control of who was consuming on their premises. This would be preferable to the current approach.
It is regrettable that this legislation does not adopt alternative approaches and instead provides for tokenistic closure. I have spoken with representatives from the nightclub industry, for whom I hold no brief. As one who used to frequent nightclubs before having babies, I can comment from a punter's perspective on the rolling back of closing times, particularly on Sunday nights. At present, those premises with theatre licences and special exemptions can open until 2.30 a.m. on Sunday night. This is not a night on which many of us choose to go out but it is sometimes the only night on which many of those in the service industry, particularly staff in restaurants, hotels and bars, can go out. It is important that clubs can stay open until 2.30 a.m. and I will table an amendment to this effect.
These are only piecemeal issues as the main issue concerns trying to provide sequential closing times to address public disorder and create the more cosmopolitan culture of which I speak. It is time we considered more genuine reform of the rule that requires nightclubs to operate with unsuitable theatre licences. We need to introduce a nightclub licence of the sort debated in the Dáil.
When we introduce legislation such as this in the absence of more thorough reform of licensing and a more comprehensive address of the problems associated with drink culture, we risk being seen as nanny-state legislators. We are really trying to ensure people will behave in an adult and civilised fashion when consuming alcohol. If clubbers and those who frequent pubs are being treated like children, they will not be able to behave as adults. We need to address this very fundamental issue when addressing licensing laws. I welcome the opportunity for further debate on this.
Committee Stage - 10/07/08
Senator Ivana Bacik: Along with several colleagues, I have previously raised the matter of the process by which this Bill is brought before the House, which is not only a matter for the Seanad but for the process as a whole. The Government is seeking to rush the Bill through the House on the last sitting day before the recess. The Dáil will not be in a position to deal with the Bill if it is forwarded. I question how we can deal with this and how the Minister of State can take or discuss amendments on the Bill in this chaotic environment. I echo the remarks of Senator Norris. Regarding the amendment groupings just distributed, I have proposed amendment No. 9. I have been told it is proposed to be grouped with amendment No. 8 and amendment No. 8a, which I have not yet received.
Like Senator Alex White, I will respond to the Minister of State's point that Senators on this side are seeking to delay the Bill and do not have concerns about the problems associated with alcohol abuse. As many of us stated during the Second Stage debate yesterday, while we are very concerned about these problems, we do not believe the Bill is an effective means of tackling them. On the contrary, it is counter-productive legislation and restricting the hours in which people are entitled to drink in pubs and clubs will not address the problem of binge drinking or the harm associated with alcohol abuse. Such restrictions will affect where and how alcohol is consumed, rather than how much of it is consumed or what damage it causes.
Opposition Senators do not wish to under estimate or trivialise the problems associated with alcohol abuse. The amendments I and other Senators have tabled propose alternative means of tackling the problem and more time is needed to debate them. It is unfortunate, as other speakers have noted, that Senators have been left in the farcical position of proposing good, worthwhile alternatives which the Minister of State appears to be unable to accept.
Section 1, Ammendment 1:
Senator Ivana Bacik: While I do not wish to prolong the debate on the amendment, in the interests of fairness I must respond to the Minister of State's comments which misinterpreted what I said. I did not say regulations on the advertising, sale and supply of alcohol do not have an impact on consumption. Clearly, such regulations have an impact and I have argued in the House that the Government should restrict the sale of premiership football jerseys in children's sizes which prominently bear logos of alcohol companies. I hope to raise this issue again with the Department.
My specific point was that restricting opening hours, for example, abolishing holy hour, does not of itself lead to the problems we associate with binge drinking and alcohol consumption. There is no evidence that the abolition of holy hour has led to people drinking more during that period. I do not believe that allowing clubs and bars to extend their opening hours beyond 2.30 a.m., or 1 a.m. on Sunday nights, would lead to people drinking greater quantities of alcohol. The evidence from countries where opening hours are more liberalised is not that people drink more or binge drink. Our culture is specifically binge drinking in nature, largely because we are used to having severe controls imposed.
I am replying to comments made by the Minister of State, who suggested that people who tabled amendments seeking longer opening times had somehow done so at the behest of lobbyists or vested interests. I take exception to that assertion. The one vested interest group to which the Minister of State did not refer is that which comprises consumers. I have attended nightclubs and bars — and I hope to continue to do so — and, like most Members, I was lobbied by the nightclub industry. We were also lobbied by those who attend nightclubs and late bars, which is fair enough.
I would have tabled my amendments regardless of whether I had been lobbied. I have a long record of seeking action in respect of this matter. I wrote in Gay Community News on the need to liberalise opening hours. In the past I made a submission, in a personal capacity, to the Commission on Alcohol requesting that opening hours be liberalised. I also supported a proposal put forward by a previous Minister for Justice, Equality and Law Reform to the effect that café bar licences should be introduced in this country.
It is unfair to state that people are suggesting that opening hours be extended just because the Irish Nightclub Industry Association or some other lobby group made a recommendation in this regard. There is an important principle at stake — namely, that the laws should not be as restrictive as they are at present — in which many of us believe.
Section 2, Ammendment 2:
Senator Ivana Bacik: I too support Senator Regan's amendment. The present system of nightclubs operating under the guise of theatre licences is inappropriate and it is time that we clarified the law by regulating them properly. Some of us frequent nightclubs. We do not do so every night of the week. It is reasonable that people should be able to frequent nightclubs which stay open later than pubs. A system of sequential closing should be introduced because public safety is a real concern when large numbers of people spill out on to the streets at any one time. Difficulties arise in terms of public transport and safety for young people who walk home alone because they cannot find taxis. Anybody who has been on Dame Street or any other main street in Ireland at 3 a.m. will be aware of these problems.
It would be eminently sensible to operate a sequential closing system so that some venues can stay open later than others. Proper nightclub licences which permit people not only to drink but to dance and socialise late into the night would also be sensible. Such systems can be seen in many other countries in Europe and around the world. It would allow for the creation of a more cosmopolitan culture around drinking and tourists would feel more welcome. Dublin in particular has been marketed as a place where people can enjoy a cosmopolitan drinking culture.
On a slightly more whimsical note, it is nice to be able to dance until dawn. Nightclubs are not important only for drinking; they also offer opportunities for dancing and socialising. Unless dawn comes very early, however, we will not see it with the Bill as it stands. U-turns have already been taken in regard to early houses and off-licence partitions, so I would like the Minister of State to accept that nightclub licences are a sensible way to proceed, if not in the context of this Bill, then in the comprehensive legislation promised for autumn.
. . .
As Senator White has said, this amendment is not just about public order but about public policy, and not just public policy as it relates to the consumption of intoxicating liquor but as it relates to socialising and social culture generally. Thus, it has a considerable impact. I may have sounded frivolous earlier when I mentioned dancing and so on, but it is a serious matter. In order to be serious, we must take into account that it is about more than just alcohol consumption. It is about the culture we wish to see prevail in our urban centres.
The Minister of State made some points about public order. The concern in England and Wales, as I understood it, was that the trouble was simply being deferred and that similar public order issues were occurring at a later hour. That is targeted in my own amendment, No. 9, which is similar to this one. The amendment allows some flexibility in that a court may specify that particular places close at different times, including earlier than 4 a.m. Therefore, it is not necessarily the case that all venues would be closing at the same time, which would lead to the problems identified earlier. We are all suggesting that there be some system allowing sequential or differential opening hours for different venues.
Section 10, Ammendment 8:
Senator Ivana Bacik: I move amendment No. 8:
In page 10, lines 4 and 5, to delete paragraph (c) and substitute the following:
“(c) by substituting the following subsection for subsection (5):
“A special exemption order shall expire not earlier than 2.30 a.m. on any day of the week unless the Court, for stated reasons including reasons related to maintaining public order, considers it expedient to grant the order for a shorter period.”
This is an amendment to section 10. The latter amends section 11 of the Intoxicating Liquor Act 2003, which inserted a new section 5 into the Act of 1927. There is already, therefore, a compendium of different provisions in place. The effect of existing legislation is that those who hold theatre licences are exempted from the closing times other licensed premises may apply for by way of special exemption orders.
The entire premise of this system is flawed. The fact that late bars must apply for special exemption orders in order to open is problematic. I hope that matter will be addressed in the autumn. I also hope that a specific nightclub licence will be introduced. The latter would remove the need to employ archaic measures such as theatre licences or provisions which do not suit the reality of the situation.
Everyone wants comprehensive reform. The Minister of State has repeated a mantra in respect of various matters to the effect that he will “be looking at this in the autumn”. He also stated that changes will be introduced by means of the sale of alcohol Bill. That is really a way of rejecting many of the amendments tabled. Unfortunately, this means that an interim system will be in place during the summer months whereby different closing hours will obtain. It appears that some of the restrictions that will be in place during the summer will, perhaps, be removed in the autumn.
Due to the fact that this is an interim Bill, I seek to make an interim amendment that will resolve the situation whereby there will be an unnecessary restriction in place during the summer to the effect that all those establishments, be they bars or clubs, with special exemption orders will be obliged to close at 1 a.m. on Mondays. The impact of the provisions in section 10, particularly those in paragraph (c), will be that all licensed premises with special exemption orders, be they bars or clubs, will be obliged to close at 2.30 a.m. every day other than on Mondays, when they must close at 1 a.m.
I take exception to the idea that Sunday nights are different for everybody. They are certainly different for those of us who work nine to five, Monday to Friday. Obviously, Members do not work nine to five and they often work very different hours. However, there are those who work shifts and people in the services sector and the entertainment industry for whom Sunday night is their night off because it is a quiet time for everyone else. If people wish to remain out beyond 1 a.m., I do not see where the problem arises.
As stated previously, I have been lobbied by nightclub industry representatives. However, I do not hold a brief for them. This issue does not merely relate to the industry, it is much broader than that. We have all been lobbied and contacted by ordinary punters who, as consumers, wish to be able to go out at night. I do not understand why people feel there is a need to curtail their enjoyment at 1 a.m. each Monday.
The term “nanny state” is overused. However, this is an overly paternalistic measure. It is like the measures we had in the past, such as the holy hour. It will not do any good in terms of preventing alcohol abuse or public disorder. It is an unnecessary measure to make this distinction between Sunday night and other nights. Will the Minister of State consider accepting either my amendment or Senator Regan's amendment No. 8a which would have the same effect in terms of restoring 2.30 a.m. as the potential closing time for special exemption orders on a Sunday night?
Amendment No. 9 has a different effect. Essentially, I seek to build on the special exemption orders by permitting the District Court where a application is made to it by a licensed premises to permit it, having considered all the reasons offered, including reasons relating to maintaining public order, to grant a special extension of time within which alcohol may be served beyond the time for which the special exemption order applies.
It is very similar to the amendment Senator Hannigan tabled, amendment No. 4, in which he sought to ensure that the court could exercise discretion to avoid all premises in an area closing at a particular time. What I hope to do here, in somewhat more elegant drafting, is to achieve the same objective, that is, to achieve a sequential closing time and to allow flexibility for the court but within the parameters of the existing special exemption orders.
I seek to amend section 10 to insert a new subsection (e) which would allow a court to grant a special extension of time up to two hours beyond the expiry of a special exemption order. This would permit places to close up to 4.30 a.m. However, it gives flexibility to the court to make the time shorter and it builds in, as I have done with amendment No. 8, a provision that the court may look at reasons relating to maintaining public order. It is a reasonable approach and I ask the Minister of State to take it on board if not now, then in the autumn. However, I would very much like him to take it on board now because I do not see why we should have an interim arrangement over the summer which will restrict closing hours, particularly on a Sunday night, with the promise of something else in the autumn.
I will press these important amendments. I do not see any rationale not to accept them even in terms of the Minister's stated intentions in regard to the Bill.
. . .
I do not see the problem with opening later. I do not believe the Minister of State has made the case that the restriction of opening hours is a causal factor in alcohol abuse or in public disorder. Responding to his point about consulting the social partners in respect of any change, the provision unamended would change the current situation. The current situation is that persons who hold a theatre licence can open until 2.30 a.m. on a Monday morning and that the provision in the Bill, as I understand it because it is complex and I hope I have not gotten it wrong, unamended would result in a change to restrict opening hours on a Sunday night-Monday morning to 1 a.m. It would bring theatre licence holders back to the position of pubs in the possession of special exemption orders. I hope somebody will correct me if I am wrong on that. If that is the case, then a change is proposed in the Bill. The Minister of State's points about the need to consult social partners, etc., are unmerited.
We are operating under a flawed system, that is, the special exemption order system. I would much prefer to see a more honest approach to licensing which allowed pubs to apply for late opening without the need to go through the motions of special exemptions and which allowed clubs to operate under a different nightclub licence, as Senator Regan has proposed. The current system smacks of paternalism. It would be open to the Minister of State to accept the amendments on nightclub licences which would resolve the problems he has expressed about the driving of a coach and four through the theatre licence. The theatre licence is fictional, as we have all said. All of us would be in favour of seeing something more honest and realistic in place to replace the current theatre licence.
I propose a stopgap to try to address the issue while we have a system of special exemptions in place and to allow the extension of special exemption orders at the discretion of the court, as proposed by amendment No. 9, or at the very least the more restrictive measure in amendment No. 8 to allow opening until 2.30 a.m. for any licensed premises with a special exemption order over seven nights per week and not only Monday to Saturday.
To suggest Sunday night is different discriminates against those who do not work Monday to Friday. I did not think there was a religious rationale. I had completely neglected that because, given that the current situation allows theatre licence holders open later on Sunday nights, I do not believe there is a ground to suddenly raise a religious objection. The objection was raised because of Monday absenteeism but that can be addressed in other ways. The people who go out on Sunday night tend not to be those who work on Monday morning.
Section 10, Ammendment 8a:
Senator Ivana Bacik: I move amendment No. 9:
In page 10, between lines 17 and 18, to insert the following:
“(e) by inserting the following subsection after subsection (9):
“(10) Where the Court is satisfied that a particular licensed premises has, on an application for a special exemption order, made a particular case for an additional extension of the time during which intoxicating liquor may be sold on that premises beyond the time for which the special exemption order applies, the Court may, having considered all the reasons offered including reasons related to maintaining public order, grant a special extension of the time for which the special exemption order applies. Such special extension order shall permit the sale and consumption of intoxicating liquor upon that premises, without penalty for contravention of the provisions of this Act relating to prohibited hours, for a further period of up to two hours beyond the expiry of the special exemption order.”
Section 12, Ammendment 10:
Senator Ivana Bacik: I move amendment No. 10:
In page 10, line 29, to delete “container;” and substitute the following:
“container. All such containers must carry a clearly identifiable mark indicating the specific address and location of the point of purchase;”.
Senator Norris in proposing this amendment is seeking to ensure that containers or bottles of alcohol carry an identifiable mark which would indicate the off-licence from which they were bought, the purpose of which is self-evident.
. . .
I am grateful for the Minister of State's views and clarity on the matter.
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I have not tabled an amendment to section 19. My issue is with the thrust of the section as it stands. It is the section that aims to insert two new sections, sections 8A and 8B, into the Criminal Justice (Public Order) Act 1994. I am concerned about inserting new offences and new powers for the Garda into an Act that is already quite draconian in its content.
While I have a concern about that, I am particularly concerned about what would be the new section 8A of the Criminal Justice (Public Order) Act which would create essentially a new offence of failure to give an explanation to a garda where requested to do so. It provides that where a garda finds somebody with alcohol in a situation where he or she believes the person is causing trouble, annoyance or nuisance to another person, the garda may seek an explanation as to any of the matters to which his or her belief relates and if the person refuses to comply with the request for information, he or she may be guilty of an offence.
My concern is that Ireland has already been found in breach of the Convention on Human Rights by the Court of Human Rights, in the cases of Heaney and McGuinness v. Ireland and Quinn v. Ireland, in the provision of the Offences Against the State Act that makes it an offence to fail to answer questions where being questioned by a garda in the course of detention. The Court of Human Rights stated that was in breach of due process rights, and so on.
There are other provisions where it is an offence to fail to give name and address to a garda, but this purported section 8A goes beyond that in making it an offence to fail to give an explanation. I am concerned that this would be in breach of the Convention on Human Rights. Has the Attorney General advised on this and in the light of the concern I raised, is the Minister willing to review the operation of the section until the issue of compliance with the convention is reconsidered?
This is part of an unfortunate trend where we are seeing an ever increasing number of offences being created. There is already a section 8 offence in the Criminal Justice (Public Order) Act 1994 of failure to comply with the direction of a garda. That is quite a broad offence. What we are seeing with this provision, section 8A, is an even wider cover-all offence, which gives greater power to the Garda. This gives rise to fear of abuse and with this problem, on my reading of it, it makes it an offence to fail to give an explanation to a garda. I ask the Minister of State's views on that.
. . .
I raised a valid point of concern in a constructive way, I hope, on a section of the Bill which the Leas-Chathaoirleach called, namely, section 19. This purports to insert a new section 8A into the Amendment of Criminal Justice (Public Order) Act 1994. This section would create an offence of failing to give an explanation to a garda. Will the Minister of State specifically address the concern I have raised? Section 8A(5) states: “It shall be an offence for any person, without lawful authority or reasonable excuse, to fail to comply with a direction given by the member under subparagraph (iii) or (iv) of paragraph (b) of subsection (2).”. This is a direction requiring explanation. This raises a concern as there have been cases successfully taken against Ireland on a similar provision. I am sorry we do not have more time to review this and to establish whether I am correct. There is a concern this provision might fall in breach of the European Convention on Human Rights on the same grounds as those in the Heaney and McGuinness judgment and the Quinn judgment. These cases found it was in breach of the convention to make it an offence to fail to answer questions in a broad sense. I may be wrong but I am simply raising a concern.
. . .
We are passing into law a novel offence with very little debate. I am concerned by the Minister of State's response, as he stated this measure will allow the Garda to anticipate the commission of public order offences. We have a presumption of innocence under the Constitution, on which the criminal justice system is premised. It would be a matter of some concern if the Garda could arrest people in anticipation of such people committing an offence. We have given powers to the Garda to prevent crime, which serves everybody's interests. However, this measure goes beyond what is normally permitted in the interests of the prevention of crime.
Report and Final Stages - 10/07/08
Senator Ivana Bacik: I wish to echo what Senators Alex White and Eugene Regan have said. It is unfortunate we had to gallop through the legislation at such speed. It will be important for us to have more time to debate the issues relating to alcohol abuse, late night culture and so on in the autumn. I look forward to making a more substantial contribution then and to being listened to and having my contribution considered more seriously than today.