Dáil Éireann - Volume 589 - 07 October, 2004

Intoxicating Liquor Bill 2004: Second Stage.

  Mr. McDowell: I move: “That the Bill be now read a Second Time.”

I thank the House for agreeing to deal with this short Bill as an urgent matter. It is fair to say it deals with an issue which is of equal concern to all sides and I trust that this consensus will contribute towards its speedy enactment.

The primary purpose of the Bill is to amend the Intoxicating Liquor Act 1988 to provide a clear statutory basis for the holding of alcohol-free events for persons under the age of 18 years in licensed premises, such as a nightclub, or a part of licensed premises, such as a function room in a hotel, at a time when intoxicating liquor is not being sold, supplied or consumed and any bar counter in the relevant space is securely closed.

The position at present is that section 34 of the Intoxicating Liquor Act 1988, as substituted by section 14 of the Intoxicating Liquor Act 2003, generally prohibits persons under the age of 18 years from the bar of licensed premises after 9 p.m. Deputies will recall that restriction in the 2003 Act constituted part of the Government’s response to concerns expressed both by the Commission on Liquor Licensing and the strategic task force on alcohol in regard to alcohol-related harm among young people.

When I came into office, a young person could stay in a pub until 11.30 p.m. in the company of anybody. Whether the young person was 14, 15, 16 or 17 years of age, it was not illegal for him or her to be there. What is more, as a result of a number of court decisions, it was very difficult for the gardaí to establish that any drink in front of the young person was an alcoholic drink because we live in a world of alcopops and so on. Unless the garda actually tasted or analysed the drink in question, the law had, effectively, become unenforceable.

On 27 May 2003, I obtained Government approval for the early drafting of the Intoxicating Liquor Bill 2003 and I published the general scheme of the Bill on the same day. This was followed by a consultation phase during which I discussed the proposals set out in the general scheme with licensed trade bodies and with the Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights.

The proposals in the scheme were subsequently adapted to take account of certain concerns that had been highlighted and the Bill was presented in the Seanad on 17 June. I want to make it clear [1485] that the potential impact of the Bill on the operation of alcohol-free events in licensed premises was never raised during the consultation period in this or the other House, or anywhere else. Neither was it raised during the subsequent debates on the Bill in the Seanad and in this House.

One of the issues raised during our debates was the possible impact of the restrictions on the holding of private functions, such as weddings and birthday and retirement parties, in licensed premises. I recognised the validity of these concerns and I subsequently introduced an amendment providing that it shall not be unlawful for under 18 year olds to be present in a bar on the occasion of a private function at which a substantial meal is served to persons attending the function.

If the potential difficulties with the holding of alcohol-free events had been raised, I would have had no hesitation in bringing forward a suitable amendment along the lines set out in this Bill to make it clear that there was a statutory basis for the holding of such events.

It is important to say that it was not the intention of the Oireachtas when enacting the 2003 Act to restrict in any way the activities of voluntary bodies and their dedicated and hardworking volunteers who organise alcohol-free alternative events for young persons. On the contrary, I recall participants in the debates referring to the need to encourage young people to engage in leisure activities not involving the consumption of alcohol and the need for additional funding for such initiatives.

I had the pleasure recently of attending the launch in Croke Park of the no name club’s promotional video and I express my admiration for all the wonderful work being done by that organisation. Eddie Keher, DJ Carey and others were present on that occasion to support the work of that body and of similar bodies throughout the country.

Shortly after the entry into force of section 14 of the 2003 Act at the end of September 2003, concerns were expressed by certain youth organisations that the restrictions provided for in section 14, while generally welcome and justified in terms of combating alcohol-related harm among young people, could have the effect of interfering with the holding of alcohol-free events for persons under the age of 18 in discos and nightclubs licensed for the sale of alcohol.

There is nothing to prevent such events being held in non-licensed premises, such as schools or community halls. However, I readily accept the point, which has been made by the organisers of alcohol-free events, that the holding of such events in nightclub premises or hotel function rooms increases their appeal for young people because of the comfortable surroundings, lighting, special effects, disco music and so on.

Arising from the concerns expressed in September 2003 about that possible negative impact, legal advices in regard to the operation of such [1486] events were obtained by my Department from one of the country’s leading experts in licensing law. The conclusion reached, with which I fully agreed — I also fully agreed with the analysis — was that where licensed premises, or a part of such premises, are not being used for the sale or supply of intoxicating liquor and the bar counter is closed, such premises do not constitute a bar for the purposes of the 1988 Act. I subsequently conveyed my view of that issue to this House on 4 November in the context of a reply to a series of parliamentary questions on the topic.

More recently, the issue was again raised in the context of the reported cancellation of alcohol-free events planned to celebrate the release of junior certificate results. I understand that the Garda Commissioner consulted the Attorney General who advised, while making it clear that he had no function in prosecutions, that in his view the provisions in question did not prohibit under 18 year olds from attending alcohol-free functions in a portion of premises in which the bar had been physically closed and was not being used for the sale of intoxicating liquor.

The licensing Acts are an area of mixed competence. In respect of the enforcement of the licensing Acts through the licensing process before the District Court, which is a civil matter, the Garda Síochána is bound by the directions it receives from the Attorney General. Therefore, in the case of a decision as to whether something is or is not a good ground for objection to a licence being renewed, the Attorney General gives legal advice to the Garda Síochána. Since 1974, however, when it comes to a criminal prosecution, the Director of Public Prosecutions is the person in whom the decision is vested. The DPP is independent of the Attorney General when deciding to initiate prosecutions.

In respect of the same section, there are two different competences among the law officers. When it comes to a decision as to whether an objection should be taken to a licence on the grounds of the meaning of a particular section, it is for the Attorney General to advise and direct the Garda Síochána as to the proper meaning of that section. When it comes to a decision as to whether somebody should be prosecuted under the same section, it is a matter for the independent decision of the DPP. That is inevitable where there is a mixed civil and criminal competence.

I am also aware that the Director of Public Prosecutions, who, as I said, acts entirely independently of Government and the Attorney General in regard to the prosecution of offences, has directed that prosecutions be taken in certain cases where alcohol-free events have been held on licensed premises. As far as I am aware, no such prosecution has been successful to date. I have seen details of a case in County Galway where the District Court dismissed the charge on hearing that alcohol was not available from the bar and the shutters were closed. Media reports have indicated similar outcomes in other cases.

[1487] I acknowledge that the situation that has developed in regard to alcohol-free events is unsatisfactory. If the Director of Public Prosecutions takes the view that prosecutions should take place and the Attorney General is of the view that the law has a different meaning, it is important that people who are doing their best for young people should not operate under a cloud or a threat, or have ambiguity hanging over them.

The definition of “bar”, which is, for current purposes, set out in section 2 of the Intoxicating Liquor Act 1988, serves a number of different purposes in that Act. I did not invent a new definition for the term “bar” in the 2003 Act. In this respect, the 2003 Act amended the 1988 Act which already contained a definition of “bar”. The term “bar” is used in licensing law in a slightly ambiguous way. All of us would say we were standing in a bar having a drink, and “bar” has a certain meaning in that context, but there is also the sense of leaning up against the bar, as in bar counter which is a slightly different thing. If one is a barrister like me, the bar has a third meaning as well, but we will not go into that at the moment. Dealing with the two meanings of “bar”, first as an area in which drink is sold and second as a counter over which drink is sold, it is a pity the 1988 Act and previous licensing law have adopted a definition of the term “bar” which attempts to cover both the physical counter and the room in which it is situated. This has given rise to debate among lawyers as to what is meant by the definition which was inserted in the law in 1988 and this lies at the bottom of the present difficulty, that the Director of Public Prosecutions has taken one view and the Attorney General has taken a different view.

I recognise that the lack of a clear provision in statute law which could permit the holding of alcohol-free events in licensed premises and stated circumstances has created an uncertainty which has resulted in understandable caution on the part of some organisers of such events and, in particular, the licensees of the premises on which they are held. It is one thing for a volunteer to wonder whether in organising a no name club, he or she is doing so in conformity with the law. It is a much more serious thing for a bar owner to be in the position of wondering whether, if he allows these people on to his premises, he is in the clear. The purpose of the Bill is to definitively remove such uncertainties.

The importance of alcohol-free alternatives for young persons is appreciated on all sides of the House and although we had a vote on whether there should be a guillotine on today’s events one can see from the debate that everybody is clear that we favour people being able to organise discos of this kind in these kinds of premises. The National Crime Council, the National Children’s Advisory Council and the strategic task force on alcohol in its second report launched on 22 September highlighted it again in recent times. We [1488] are all agreed about where we want to be and the real problem is whether I can leave in place a definition under the 1988 Act which has the effect of casting a doubt over this well worthwhile activity.

Deputies asked on the Order of Business what was the urgency of all this. The urgency is that if the Director of Public Prosecutions takes, as I understand, a differing view from that of the Attorney General and directs people to be prosecuted, it is a matter of urgency that the law should be clarified in that context. It would not be a matter of urgency if this were simply a matter of legal debate in lawyers’ magazines or whatever because I could then wait until the major reforming licensing legislation, which is on the Cabinet table at the moment, would go through. In drafting that legislation I had already decided to clear up this ambiguity but I have now come to the point where I cannot wait for that major legislation which will entirely restate the law in regard to intoxicating liquor. With the knowledge that the Director of Public Prosecutions takes the view that the Garda should prosecute anybody who would have somebody on his or her premises unlawfully, I cannot wait for it to go through the drafting process. That is the dilemma and the reason for urgency.

It would be wrong of me to ignore the issue and to say that is a matter for the DPP and he is independent. In those circumstances I would be exposing good people doing good work in society to a danger of prosecution in circumstances where it is unnecessary to do so. If Members of the House want to know why it is urgent that it should be done, it is urgent because if the Director of Public Prosecutions takes that view there will be more prosecutions, and even if the Attorney General’s view turns out to be correct and the view now taken by the District Court Judiciary turns out to be upheld at every level in the judicial system, it is still wrong in my view that people should be exposed to prosecution even if ultimately my view of the law and that of the Attorney General is found to be correct.

Section 1(1) provides that for the purposes of section 34 of the 1988 Act, it shall not be unlawful for a licensee to allow a person under the age of 18 to be on licensed premises or a part of licensed premises, at a time when intoxicating liquor is not being sold, supplied or consumed there, and any bar counter there is securely closed. This is a clear and straightforward provision that will provide certainty for licensees and it responds to the requests for clarity which I have received from certain licensed trade bodies.

Section 1(2) provides that for the purposes of section 34A of the 1988 Act, the section that requires persons aged at least 18 years but under 21 to have an age document with them in order to be in the bar of a licensed premises after 9 p.m., it will not be unlawful for a licensee to allow such a person who has not produced an age document to be on licensed premises in the circumstances mentioned in subsection (1). Not merely [1489] is it not an offence for somebody under the age of 18 to be there in those circumstances but somebody between 18 and 21 who if drink was being served would have to have an evidence of age card with them are also saved by subsection (2).

While alcohol-free events are generally directed towards younger teenagers it is probable that over 18 year olds would also be present, possibly helping to run the event. So it is reasonable that the requirement to carry an age document should not apply in circumstances set out in subsection (1).

Section 1(3) provides that for the purposes of sections 33 and 34 of the 1988 Act it will not be unlawful for a person under the age of 18 to be on licensed premises in the circumstances mentioned in subsection (1).

Section 1(4) states that for the purposes of section 34A of the 1988 Act, it shall not be unlawful for a person aged at least 18 years but under the age of 21 who does not have an age document with him or her to be on the licensed premises in the circumstances mentioned in subsection (1).

Section 1(5) provides a defence for a person charged with an offence under the relevant provisions of the 1988 Act. Section 1(6) makes it clear that nothing in the Bill prevents any person raising any point of law or other plea or objection which would be open to a person to bring under the relevant sections of the 1988 Act. That is intended to prevent anybody arguing that the change we are bringing about in the law by making it more certain would sweep away anybody’s defence if he or she were the subject of an existing prosecution. Section 2 contains the short title, collective citations and constructive provisions. These are standard provisions in legislation of this type.

Before concluding I wish to say a few words on the subject of codification. Some Members on the Order of Business said they would like to raise other issues at this point. When I brought the 2003 Bill before this House and Seanad Éireann I indicated that it was a temporary measure, that a codification Bill would be introduced and that I was making an immediate response to the matter of drunkenness and youth abuse of alcohol to tide the State over until such time as the codifying legislation came through. I said if anything in the legislation was objectionable, required revision or better judgment was passed on it, I would be more than happy in the context of the codifying legislation to remedy any defects that appeared in it.

Some people who referred to “nanny statery” and the like appear to forget that I was faced with untold newspaper columns asking what I intended doing about young people having their stomachs pumped out in accident and emergency departments around the country. The law as it stood was unworkable for the reasons I mentioned and I was asked what I would do about it. This House collectively decided it would take that interim measure even though it knew that a codifying Bill was on the way because it required an [1490] immediate response, not just a paper response at some later time.

A royal commission on liquor licensing in 1899 first recommended the codification of the licensing laws. This recommendation has been repeated by Government appointed commissions of inquiry in the following years: 1925, 1957 and 2003. I am pleased to inform this House that the text of a codifying Bill comprising over 200 sections is now on the Cabinet table. It will deal with all areas of intoxicating liquor law, as it is now called. From nightclubs to the protection of young persons to theatre licences to restaurants, the whole gamut of licensing law is now on the Cabinet table for consideration, as a result of the hard work of officials in my Department and their independent legal advisers and the Commission on Liquor Licensing. I hope in the near future to get authority from the Government to draft the relevant legislation and if I do, I will also publish the heads so that everybody will be in a position to contribute to the debate on it with a view to ensuring everyone has as much input as he or she wants.

I anticipate the Government will approve the drafting of the Bill in the coming weeks. A few issues have to be discussed in detail. It will repeal all the licensing Acts and related provisions from 1833 to 2003, 100 statutes in total, and replace them with updated legislation geared to modern conditions. In particular the Bill will include provisions related to public houses, off-licences, hotels, nightclubs, theatres, supply of drink to young persons and a host of other issues that are of concern to everybody in this House. I am proud that my Department’s industry has brought us to the point that after five commissions recommending codification over a period of more than 100 years, this has been done and that I will be in a position to bring that Bill before the House shortly.

In the meantime, there is no reason why good people such as the No Name Club movement should operate in circumstances where it or the owners of the premises risk criminal prosecution for doing good work in the name of youth. That is what this Bill is about. It would not have been urgent if there was not a real risk of prosecution. However, there is a real risk of imminent prosecution in these cases and therefore I am stuck with the situation. In saying that, I am by no means resentful that we have an independent system of prosecution which makes its decisions entirely independent of Government and the Attorney General. The Attorney General and I have a view of this law which is not shared by the Director of Public Prosecutions. In those circumstances I have a duty to save those people who are doing good work in our society from the threat of prosecution.

  Mr. Cassidy: Hear, hear.

  Mr. J. O’Keeffe: I would like to share time with Deputies Enright and Deenihan. I am very much [1491] in favour of alcohol-free discos provided they are properly run and supervised. That is the starting point for me. I am against the principle of rushed emergency legislation. This is a procedure that should only be used in extreme emergencies. I cannot see those factors applying in this case. I am torn between these two principles: I will not oppose the legislation because of my concern that young people in this country would have alcohol-free activities available to them. It is not an issue of whether we permit that. We should actively encourage it and from that viewpoint I am prepared to let this Bill through, in principle. However, I want to record my serious objection as a parliamentarian of some years experience, as highlighted recently by the Minister. Rushed legislation is bad law and in an effort to clear one problem it may cause another. It is a sticking plaster approach and I do not commend it to this or any Minister in this Administration for the short time it has left in office.

Part of the problem arises, certainly as regards the rushing of the legislation, because the Minister did not listen in the past to the issues that were raised. It is not correct to say the issue was not touched on during the debate on the 2003 Bill. Fine Gael raised the issue. Senator Feighan, on 18 June 2003, said in the Seanad, “However, if this measure gets rid of the confirmation and communion discos, the Minister should reconsider.” He raised this because he was concerned at the time. He is a young Senator who was involved in the pub business at one stage, so he knew what he was talking about in raising the issue at the time. This goes back to the question of rushing legislation through in three or four hours. There is no excuse for that. This issue was raised as long ago as 18 November 2003 by the leader of Fine Gael, Deputy Kenny, when he said in this House:

We do not want knee-jerk reactions such as the law which deals with non-alcoholic discos for teenagers that take place on licensed premises. Gardaí must implement this law and are putting teenagers on to the streets because they have no choice. The Minister must spell out his solution to this problem. Yesterday I was told by two garda superintendents that they have no option but to enter licensed premises where a teenage disco is taking place, even though there is no alcohol on sale, and to put those teenagers on to the street.

The issue was raised almost a year ago. Again, following an incident last April when 800 teenagers were left out in the cold after gardaí were forced to prevent an under-18 disco from continuing in the Red Box club in Dublin, I raised the matter and demanded that the issues be addressed. Similarly, difficulties arose as regards junior certificate discos in the Minister’s constituency where Old Wesley Rugby Club had a problem. Again I spoke on this at the time.

[1492] I did not like to see a situation developing where the Minster appeared to be at odds with the Garda. The Garda has a job to do. It does not make the law. The DPP has a job to do and he does not make the law. He has to take legislation that is presented to this House, normally by the Minister for Justice, Equality and Law Reform, and which becomes law. He has no choice. The DPP has to take the law as it is and he took a view that he had no option but to apply the law, which was simple, that a bar is a bar. He was absolutely correct. My approach all my legal life was based on that: if a premises was licensed it was licensed. I will not deal with the legal complexities of that. My colleague, Deputy Enright, has a more considered view which supports that.

I did not agree with the Minister’s major announcement last month, even after his discussions with the Attorney General, that there was no problem. That was to bring the law into major disrepute. From that viewpoint I am glad the Minister now accepts that there was, is and will be a problem unless it is dealt with. However, the process by which he is dealing with it is not the correct way because the sticking plaster approach is in danger of creating further problems. Deputy Cowen, when he dismissed it glibly this morning, incorrectly, as being a one-act Bill, was taking the wrong approach as a solicitor and as a parliamentarian of some experience in this House. Every Bill that changes the law needs to be carefully analysed and considered by the Houses of the Oireachtas and we are not doing that.

It is the wrong approach and to some degree typical of the current Minister for Justice, Equality and Law Reform, who seems to lurch from one piece of emergency legislation to another. We had the child trafficking (amendment) Bill, the compellability Bill, even the debate on the amendment to the Constitution, which I supported, but which was inadequate. The immigration (amendment) Bill also involved emergency steps being taken. I do not believe that is the right approach. Apart from not providing for considered debate it does not allow us examine the current position in other countries, for example.

My colleague, Deputy Stanton, drew my attention this morning to the position in Australia. We are not unique in our approach in dealing with a problem of this nature. Most developed countries are experiencing this problem and we can learn from them. We do not have to reinvent the wheel but we have not had the opportunity of examining the way issues are dealt with in other countries. Australia is very much into alcohol-free entertainment for under 18s in hotels, nightclubs and registered clubs but they have considered the process to ensure they are properly run and supervised. Guidelines are laid down on the way they are organised covering the original application to hold the events, the advertising of them — making clear what can be advertised — and the problem of “pass-outs” because an alcohol-[1493] free disco does not necessarily mean alcohol is not being sold there. How do we ensure that does not happen?

The worst experience for parents is to happily drop off their children to an alcohol-free disco only to find that alcohol is available. Under the “pass-out” system in Australia the children leave the premises and obtain the alcohol outside, although in some instances they do pass out thereafter, if I might coin a phrase. Has any thought been given to the way these discos should be run to ensure the objective is achieved or establishing different guidelines for running them?

  Mr. McDowell: A nanny state, is it?

  Mr. J. O’Keeffe: I have not even had time to consider whether I should press that as an issue. I am not in favour of a nanny state but if we are supporting and encouraging alcohol-free discos I want to ensure they are alcohol free. The best way to achieve that is a matter for analysis, debate and consideration but we will not have enough time to do that in the few hours available for this debate.

If a need arises to bring forward legislation now as opposed to waiting for the major Bill — it might be 12 months before that is enacted — are there other issues of immediate concern that should be addressed? If the Minister gave sufficient thought to them perhaps they could be addressed by way of a debate over the coming weeks. I am thinking of issues such as the 9 p.m. rule, on which the Minister has come up with a few headlines but no specific proposal or measure to deal with it. That issue should be addressed and one way of addressing it would be to extend the time to 10.30 p.m. Another would be to exempt hotels but that is an issue that has caused a problem, and it is not just the vintners who are concerned about it. It is causing a problem for parents also. Generally, parents believe it is best if their children are with them and under control. They can be company for their parents at times also but they are generally of the view that putting their children out of these premises at 9 p.m. is not the answer. This debate, if we had more time, would have been an opportunity to address that issue. Perhaps the Minister might explain the reason he has not done so.

Another issue which has developed into a problem recently is the analogous position in law by which nightclubs operate. The explanatory memorandum refers to under 18s in a licensed premises, for example, a nightclub, but I do not believe there is any definition in law of a nightclub. We are now explaining the Bill by reference to nightclubs without having any statutory definition of a nightclub. We do not appear to have any legislative framework under which nightclubs can operate. They appear to be operating under a backdoor use, so to speak, of the exemptions provisions. That is unsatisfactory. It is even more unsatisfactory that the policy on the operation of [1494] nightclubs does not appear to be established by law. The gardaí are under pressure because of public order offences to make applications to District Court judges who, effectively, are establishing policy. That is not the right way to proceed. We should have a proper debate on the appropriate legislative framework for nightclubs and we should enact that legislation. This issue is causing many problems and the way to confront such issues is by bringing forward proposals and allowing adequate time to debate them properly.

I object strongly to the rapid way this legislation is going through the House. We should consider using the process of the justice committee to which the Minister could bring his proposals, which could then be debated. When they are finally included in legislation we would be at least assured that they had been properly considered.

I want to give way to my colleagues to give them an opportunity to voice their concerns but because of my own concern to actively encourage alcohol free activities for our teenagers, I will not oppose the Bill. However, I wish to record my strong objections to the process by which the Minister is pushing all Stages through the House today.

  Ms Enright: Like my colleagues I, too, have no difficulty with the concept of alcohol-free discos. It is important that young people have somewhere to gather and interact with each other. Unfortunately, these discos are one of the few night-time opportunities young people have in many areas to do so and the idea is a good one. The people who run them are brave. I share Deputy O’Keeffe’s concerns. The reality is that while they might not get alcohol in the premises, and the Minister knows that, many of them will have consumed alcohol before they enter the premises. We have a difficulty with that and it is something that needs to be examined in another way.

I have a problem with this reactive and rushed legislation because I fear it might turn out to be ill-considered in some ways. Who is supposed to understand what happened in the past and what is being done now if the Minister, the Attorney General and the Director of Public Prosecutions have different views on that? The Attorney General supported the Minister’s interpretation, which is welcome from his point of view, but how is the man on the street supposed to interpret it? How is the individual garda who is trying to do his or her job supposed to interpret it when their boss is outlining a different interpretation? How is the licence holder supposed to interpret it or parents, who are trying to decide whether to allow their children attend these events? That poses a serious problem. Perhaps that is what the Minister is trying to deal with in the legislation, but while I am not in politics that long, it is the first time a Minister for Justice, Equality and Law Reform interpreted his own legislation publicly. That is a strange phenomenon and a concern to [1495] me. It is not the Minister’s role to interpret legislation; that is the role of the courts and it is up to the DPP to decide whether——

  Mr. McDowell: The courts have dealt with this issue.

  Ms Enright: I am aware it has been before the courts.

  Mr. McDowell: They have agreed with me on it.

  Ms Enright: They have to some extent but the Minister came out publicly with an interpretation of the legislation saying it was all right to operate and run these events. That is not his role. It has been dealt with at different levels but it must go to the High Court where there is a case stated. It should perhaps have been resolved there before coming here. I appreciate the Minister’s point about the urgency of the situation and the need for the events to go ahead but he should not have dealt with it so publicly. I understand the ramifications, particularly for licenceholders, and while I do not want to dwell too much on their point of view it can affect them quite seriously if they host these occasions when they are subject to a dual interpretation of the legislation. The problematic legislation refers to a person being on the premises. On that basis could several offences be committed on one night, in other words, does having 300 people on one’s premises on a given night amount to 300 offences? If so the ramifications for the licenceholder would be far more serious because it could lead to his or her licence being endorsed in one night.

I am glad that in his speech the Minister dealt with the definition of a bar but that is why we are discussing this legislation and why this Bill is not ideal. We are considering the definition again although different definitions were contained in the 2003 and 1988 Acts which is a problem. The 2003 definition is “any open bar or any part of licensed premises”. As Deputy O’Keeffe said, “A bar is a bar is a bar”. That is the point. The Minister spoke about the problem of defining a bar counter. What is a bar? Like my colleague, I regard it in most cases as any portion of a licensed premises. Where does the shutter feature? When the shutter comes down one is still in a bar and on the licensed premises. If the entire premises is a bar then shutter or no shutter it remains a bar. We are moving into difficult waters on this issue. Why did the Minister use the 2003 definition instead of the 1988 one? I welcome the idea of the codification of the law but we are being asked to decide one matter today and in a few months’ time, when the codification comes in, we could be considering another definition of a bar. That is not a good way to make law. If we have poor drafting then, as we have now, rushing this through will compound rather than remedy the problem.

[1496] I know, and the Minister knows, what a nightclub is but the legal definition is another matter, a problem which the codification will surely rectify. Is that not urgent too? The matter is seen as being urgent because the problem arose last week. Does the fact that it was not broadcast for a week on the “Gerry Ryan Show” affect the urgency with which we decide on legislation? We must decide what is urgent. It is difficult sometimes to come into the House and watch people vote and make decisions on legislation when like me they have probably been out till 3 a.m. We tell people not to do what we find perfectly acceptable for ourselves. Most people I know who go out behave themselves yet we are deciding that they should all go home a few hours earlier.

  Mr. McDowell: The codification will deal with the Members’ bar.

  Ms Enright: Now that it is finally licensed, or is it?

  Mr. Costello: The Minister must deal with that more urgently.

  Mr. J. O’Keeffe: Deputy Deenihan orders Deputy Enright to sit unless she is still speaking.

  Ms Enright: My colleague is waiting to speak. I welcome the codification which is much needed. With regard to enforcement there is a need to ease the job of the Garda. When I discussed the concept of “found ons” with the gardaí I was surprised to find that it is a thing of the past and people no longer run out the back door of the pub. It is difficult for the gardaí to implement a law if they find me in a pub at 3 a.m. when I should not be there but because I have no alcohol in front of me they can do nothing about my presence. The rule was introduced at the time of the World Cup when people wanted to go into licensed premises to watch the matches on television and not consume alcohol at 7.30 a.m. We should be able to make exceptions for such events but it makes it difficult for the gardaí to do the job we expect them to do if they come in knowing that a person has been consuming alcohol five minutes before they arrived and will resume drinking when they leave but because there is no alcohol visible they cannot make a charge or pursue a successful prosecution.

  Mr. Deenihan: I am pleased to have the opportunity to speak on this Bill. I spoke on the 2003 Bill when the Minister introduced that legislation and identified problems which later came to pass. I endorse what the Minister is attempting. Licensed premises, whether a hotel function room or a bar, are a better venue for a party for people under 18 than houses and other unsupervised locations. In the function room of a hotel or a bar the party can be controlled and supervised. Prior to the legislation people used alterna[1497] tive unsupervised locations where drink was available, resulting in problems.

While I welcome this legislation I am surprised and disappointed that the Minister did not use this opportunity to amend section 14 of the Intoxicating Liquor Act 2003. Over the summer my fellow Kerryman, Deputy John O’Donoghue, expressed strong reservations about opening times, particularly in tourist areas. Many Fianna Fáil backbenchers were more vocal than Members on this side of the House in their objection to the section. There seems to be a belief throughout the country that the 9 p.m. watershed, as it is now known, should be reconsidered. It has created immeasurable problems, especially in tourist areas. I raised this point in the debate on the legislation citing the example of Ballybunion, which is close to my home. People there who wish to go out after 9 p.m. might not be in a position to pay babysitters or find babysitters on whom they can rely, which is not easy, and would be greatly inconvenienced because they would miss the opportunity to enjoy the company of their friends whom they meet maybe only once a year.

The Minister said he could not make one law for Ballymun and another for Ballybunion and I appreciate that difficulty. There are many Kerry publicans in London and I asked one of them, whom I met at Listowel Races, if he had this problem. He said no, that in the United Kingdom the closing hours are pub specific and it is up to the local licensing board to decide whether a pub can admit customers after a certain time. It is very different from our law. The Minister once hinted that local authorities might have responsibility and it is an approach he might consider in the future.

12 o’clock

As regards the minimum age and allowing young people on to premises, the Equal Status Act has created a problem in that proprietors cannot ask a person to leave their premises without a good reason. The matter could be resolved in a way if young children were in a pub after 9 p.m. and the proprietor could say to their parents that it was too late for them to be present and they must be removed. Under the Equal Status Act, however, proprietors cannot do so. They would break the law if they removed the children and, therefore, do not have authority to do so. I previously expressed reservations about the 9 p.m. deadline and I asked the Minister to listen to the views of the Irish Hotels Federation and the Licensed Vintners Association. It is creating major problems for publicans. I completely agree with the smoking ban but the provision to which I refer is creating huge difficulties.

Being a publican in rural areas and small villages and towns has become a part-time job. To survive, most publicans or their wives are obliged to work elsewhere. They open for a few hours at night and the entire pub trade is being destroyed. It is not that people are drinking less. They are probably drinking more now but alcohol is not being consumed in pubs. When he is codifying [1498] the law, the Minister should consider the overall context of the legislation and its effect on pubs.

I wish to refer to excise duties. There has been a great deal of discussion about rip-off Ireland and even the leader of the Minister’s party referred to it. Our main competitors in the EU, Austria, Greece, Italy, Portugal and Spain, do not impose excise duty on wine. Such duty is a major imposition here, where we have the highest rate of such duty in the EU. The position is similar in respect of beer, in respect of which a number of countries do not impose excise duty. After Finland, Ireland imposes the second highest rate of excise duty on beer in the EU. That is the reason there are high costs and why we cannot compete.

It is not only the new restrictions in the licensing laws that are becoming a major problem for publicans. There are also many taxes to pay. At local level, there are waste disposal charges, domestic rates and water charges, while at national level people must pay excise duty and VAT. The Minister will enter discussions with his colleagues in Cabinet in the near future regarding the budget. The position as regards excise duty and VAT will have to be seriously considered if the competitiveness of the tourism industry — of the infrastructure of which beer and wine sales are very much a part — is to be retained.

There is a major difficulty with the age restriction of 18 years in that a person aged 19 might go to the pub with a girlfriend who is only 17 years of age. What is supposed to happen at 9 p.m.? They are obliged to leave together. That is a major problem and perhaps the Minister will comment on it. They must leave the pub——

  Mr. McDowell: We cannot have 17-year olds in pubs just because they are dating 19-year olds.

  Mr. Deenihan: I am just citing the difficulties involved.

There are several problems with the legislation. I welcome its introduction but, as Deputy Enright stated, there are a number of grey areas which are a matter for interpretation. I recall the Minister stating on “Morning Ireland” some time ago that he makes the law and that there is no one who makes it better than him. He also stated that he can interpret the law better than anyone else.

  Mr. McDowell: I do not recall saying that.

  Mr. Deenihan: I heard the Minister saying it and that he is the supreme judge in this country.

  Mr. J. O’Keeffe: The Minister can do that when he returns to the Bar.

  Mr. Deenihan: Right or wrong, the Minister is totally confident about what he does in the House.

  Mr. Costello: In The Irish Times today, the Minister is quoted as saying “I was correct at all stages”. Perhaps Deputy Deenihan is referring to his certainty that he was right in respect of this [1499] matter. If he was so certain in that regard, why are we here?

I have stated previously that I consider the Department of Justice, Equality and Law Reform as something of a factory when it comes to the production of legislation. The Minister would have to agree that the quantity of legislation that comes from his Department and which must be dealt with in the House far exceeds the amount produced by other Departments. Approximately, one third of all legislation comes from the Department of Justice, Equality and Law Reform and must be processed in the House. We should not deal with quantity of legislation; we should instead deal with quality legislation. I welcome the Minister’s intention to codify the between 70 and 80 Acts that are extant in respect of the administration and operation of and the procedures etc., relating to licensed premises.

We already have on hand the 1998, 2000 and 2003 Acts. We have been presented this morning with this Bill and at least a further two Bills are promised for next year. I refer here to the Minister’s codification and consolidation Bill and another Bill from the Minister for Health and Children regarding the sale of alcohol products and the marketing thereof. It is important that we do not produce Bills relating to the same matter on an almost annual basis. Some mechanism must be put in place in respect of all Departments in order that consolidated legislation, which can then be amended, can be produced across the board. This would be better than the practice of producing new legislation virtually every year or second year because we do not get it right the first time in respect of particular issues.

Why are we taking all Stage of the legislation today? The Minister has still not provided an answer in that regard.

  Mr. McDowell: I fear that prosecutions may arise next week if we do not do so.

  Mr. Costello: It is a serious matter if there are to be prosecutions and we are putting forward a Bill in this manner to deal with the situation. We will have to address the question of introducing Bills designed to obviate what is happening in the courts and to protect the Minister, the Government and the State. In particular, we will be obliged to debate whether it is an appropriate function of legislation to provide such protection in respect of court cases that are being taken and whether it is possible to do so in a retrospective fashion and for a specific purpose.

We are taking all Stages today. However, this issue was debated last month when the question of alcohol-free discos arose. It is no longer the case that groups of students want to celebrate their success in the junior certificate examinations because they have already done so. There will be no further need to deal with the matter of alcohol-free discos until this time next year. It appears the only reason for the legislation’s intro[1500] duction is to protect ourselves against possible court cases.

It is a shame that we had to do our business in that fashion and we are now forced to rush through legislation in one fell swoop, which we may rue later if we fail to get it right. We may be introducing this for the wrong reason and may find that the substance of the legislation may again be faulty having been rushed through without proper debate and the normal procedure of two week’s indication before taking it in the House and without the proper gap between Second, Committee and Report Stages. Presumably the Minister intends doing the same in the other House as here.

Much important legislation is waiting in the traps. For example, yesterday we discussed the decision of the Cabinet on the outcome of the Morris tribunal and the serious matters that arose regarding corruption, mismanagement and negligence as highlighted in Mr. Justice Morris’s report. Legislation is pending to deal with the Garda Síochána and the Criminal Justice Bill, both of which are very relevant. We could have been addressing such legislation.

The explanatory memorandum for the Bill states:

Section 1(6) makes it clear that nothing in this Bill shall prevent a person raising any point of law or other plea or objection which would be open to a person to raise in proceedings under these sections [of various Acts referred to]. This provision is intended to avoid prejudice in any proceedings already underway.

How will this avoid prejudice? It might be thought desirable to avoid prejudice in proceedings already underway as to do otherwise would be unconstitutional. In other words the Bill could be invalid if it purported to withdraw entirely or to affect the outcome of specific cases already pending before the courts. The only way to affect the outcome of proceedings already before the courts would be for the prosecution to withdraw the case. I do not know whether cases are before the courts. The Minister seems to indicate that he knows of cases already before the courts with others to follow. We know of a case stated in the High Court. If this is the case we may have a problem with the legislation.

What the explanatory memorandum asserts is not what section 1(6) purports to do. This subsection simply makes it clear that the preceding provisions do not go beyond their own terms. They do not represent an all-encompassing outline of the various situations that are not unlawful. If a particular situation is not covered by the Bill a party is free to run the prosecution or defence of the case as before. In other words subsections 1(1) and (4) state that certain situations do not amount to a breach of the 1998 Act. Section 1(6) is then in effect stating that this does not mean there are not additional points of law not covered here, which would also be relevant to a prosecution under the affected sections.

[1501] Section 1(6) does not distinguish between pending and future prosecutions. It does not relate to the prejudicing of pending prosecutions and does not address the question of retroactivity. It is quite possible to repeal a criminal statute in its entirety in a way that not only speaks to the future, but also makes it impossible to mount or continue prosecutions in respect of already committed acts. The common law presumption is that prosecutions cannot be instituted or maintained in respect of a repeal defence. However, section 21(2) of the Interpretation Act 1937 creates the reverse presumption by providing:

Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears... any offence against or contravention of the statute or portion of a statute so repealed may be instituted, continued or enforced, and any penalty, forfeiture, or punishment in respect of any such offence or contravention may be imposed and carried out as if such statute or portion of a statute had not been repealed.

This provision was held by the Supreme Court in Grealis v. DPP, [2001] 3 IR 144, to have reversed the common law presumption that prosecutions were not maintainable in respect of repealed offences.

The fact that section 21(2) applies only to repealed statutory offences and not to abolished common law offences gave rise to difficulties when the Non-Fatal Offences against the Person Act 1997 abolished the common law offence of assault and replaced it with a statutory offence. As section 21(2) of the Interpretation Act did not apply to offences at common law, all pending assault charges had to be dismissed, since the offence had been abolished and no provision had been made for prosecutions to be maintained or continued under the old law. The loophole has now been plugged by the Interpretation (Amendment) Act 1997.

However, if it is possible by statute to abolish or repeal an offence completely and yet to have a choice in that legislation as to whether prosecutions should be continued or even instituted after the passing of the repealing Act in respect of previously committed offences, as the Supreme Court acknowledged was the law in the case of Grealis v. DPP, then surely it is equally possible to take the less radical step of delimiting the operation of an existing statutory offence, with retroactive effect. In other words, it should be possible to create a defence to an existing statutory offence and also to provide for the application of that defence to prosecutions already in being or to prosecutions mounted in respect of offences alleged to have been committed before the passing of the amending Act. It would boil down to ascertaining the intention of the Oireachtas, as spelt out in the Act. Yet it is hard to see from this Bill what is the intention.

While sections 1(1) to 1(4) of the Bill are not direct amendments of any of the previous Acts, [1502] they will of course affect their future application. They provide that certain specified situations are not unlawful. The operative part of each subsection begins, “it shall not be unlawful for.” For example “it shall not be unlawful for the holder of a licence”, “it shall not be unlawful for a person” etc. This seems to be strange parlance. It might be useful to eliminate the double and state “it shall be lawful”. Standing by themselves, like any legislation that does not purport to be retroactive in its effect, these subsections would be presumed to speak to the future and to apply in future cases only.

On the other hand, section 1(5) does not state that a particular state of affairs shall not be unlawful but rather that “it shall be a defence for a person charged with an offence...to prove...”. The sentence goes on to list the various situations that have previously been described as not being unlawful but which seem clearly to be intended to have prospective effect only. Can a person charged with an offence alleged to have been committed before the passing of the Bill into law invoke the provisions of section 1(5) as a defence to the charge? The Interpretation Act does not apply since it relates only to the repeal of offences and not to their delimitation by subsequent enactments.

Bearing in mind the Interpretation Act, one possibility is that the courts might hold that, if a prosecution could not at common law be instituted or continued in respect of a subsequently repealed offence, then neither is it possible to institute or continue proceedings in respect of a state of affairs subsequently declared by statute not to be unlawful. If so, then the Bill clearly does “prejudice proceedings already underway”, since it makes it impossible to continue prosecutions in respect of acts already done but subsequently declared not to be unlawful.

The nub of the question is whether the Bill prejudices proceedings which are already under way by making it impossible to continue prosecutions. Those prosecutions which are under way will be stopped by this legislation when it is passed. Does the Minister understand that to be the case? If so, why does the explanatory memorandum say the opposite? I would like the Minister to respond to that point when he is replying. Essentially, the Minister raised at the outset the question of whether the effect of the legislation will be to neutralise any case that is in the process of taking place.

In his previous statements, the Minister said that he is certain that there can be just one view on the matter. He said on 10 September last that he had consulted the Attorney General and the Garda Commissioner. He claimed that this Bill is necessary in the interests of absolute certainty. In an interview with RTE on 10 September, he said that he “was correct at all stages”. He said today that there is not just one view on the matter. In effect, the Minister is saying that he was wrong.

  Mr. McDowell: No.

[1503]   Mr. F. McGrath: The Minister got it wrong.

  Mr. Costello: It is either the case that there is one view on the matter——

  Mr. F. McGrath: He has rolled back.

  Mr. Costello: I can find the transcript of the interview to quote verbatim the Minister’s words.

  Mr. F. McGrath: The Minister is changing his mind about the nanny state.

  Mr. Costello: I will read from the transcript of an interview with the Minister on 10 September last.

  Mr. McDowell: The Deputy should read it all out.

  Mr. Costello: Why would we not read it all out? The interviewer raised the possibility of there being two views on the matter by asking the Minister how, on the one hand, he had “interpreted the Act to allow functions like this to go ahead” while, on the other hand, the Garda had “such a different understanding”. The Minister replied:

Well the situation is that first of all this theory that the Act prohibits kids from being in a place even though the bar is physically closed and no alcohol is being sold has been tried out in a number of venues and has been rejected. The District Court on two occasions has flatly rejected the suggestion that it is a breach of the Act. And that is in accordance with independent counsel’s advice which I obtained ... it was detailed counsel’s advice by a counsel who I believe to be expert on the subject — has written a book on the matter — and I am very clear that I agreed at all stages with that counsel’s advice and told the Dáil so in response to a parliamentary question a number of months ago.

  Mr. P. McGrath: Was it Constance?

  Mr. Costello: Was the Minister referring to the same counsel, Constance Cassidy SC, who is regarded as the expert in this area?

  Mr. McDowell: No. It was not Constance Cassidy.

  Mr. Costello: Although the Minister received advice from somebody he considered an “expert on the subject”, he did not get the actual expert on the subject. Constance Cassidy SC, who is the author of Cassidy on the Licensing Acts, is regarded as a knowledgeable counsel in this regard. She told The Irish Times last month that the legislation was “utterly nonsensical” and “a mindless, thoughtless and knee-jerk reaction”.

  Mr. F. McGrath: Like many of the Minister’s policies.

[1504]   Mr. Costello: Perhaps the Minister will identify the other expert in this area so we know who, other than the Attorney General, has been advising him. The Minister said he would like me to quote him in full so I will continue to quote from his interview of 10 September last:

All of us are subject to an authoritative statement in relation to the law and this I understand the Garda Commissioner sought today from the Attorney General and the Attorney General has told the Garda Commissioner that it is not the law that a person commits an offence by being present in these circumstances, at an alcohol-free occasion when the bar is physically closed. And that is the — we live in a Constitution, he is the chief law officer of the State and that is the end of the matter as far as I am concerned.

When the Minister said “we live in a Constitution”, I assume he meant to say that we live in a country with a Constitution. He did not refer to the Director of Public Prosecutions, the relevant officer who interprets these matters and decides whether cases should be prosecuted. It seems the Minister has demonstrated a certain degree of negligence.

  Mr. F. McGrath: The Minister should have been reshuffled to the Department of Transport.

  Mr. Costello: In his interview of 10 September, the Minister said he and the Garda Commissioner “discussed the matter”, as if they had a role in the matter. He also said they “discussed the propriety of getting the Attorney General’s view on the matter”. He was glad to state that the Attorney General had advised that day that the Minister “was correct at all stages”.

  Mr. P. McGrath: Why is the Minister changing his mind?

  Mr. Costello: The Attorney General does not have a role because he deals with civil——

  Mr. McDowell: That was his advice.

  Mr. Costello: He is the adviser to the Government when it comes to a criminal prosecution. The Attorney General has not had a role in the matter since 1974, when we separated those matters by statute.

  Mr. McDowell: He has a role in regard to the law. He advises the Garda to prosecute——

  Mr. Costello: We are talking about criminal prosecutions. They are two separate matters.

  Mr. F. McGrath: The Minister is wrong.

  Mr. Costello: The DPP is the relevant person. The Minister has totally disregarded the DPP, who had a function in this matter.

[1505]   Mr. P. McGrath: That is right.

  Mr. McDowell: It is not.

  Mr. Costello: The Minister concluded the interview by saying:

We cannot have a State in which there are different views of the law. There is only one view of the law which binds me as a Minister and binds everyone else. Both of us agreed that there is only one way to solve the issue and that was to bring it to the Attorney General.

That is a load of codswallop.

  Mr. McDowell: It is not.

  Mr. Costello: The Minister told the public that everything was hunky dory, in the knowledge that the Director of Public Prosecutions is the only person who can determine whether a prosecution can take place in respect of the law. I regard it as negligence on the part of the Minister, or at the very least a deliberate attempt to misconstrue a situation in public.

  Mr. McDowell: If I consulted the DPP, would I not be accused of interfering with his independence?

  Mr. Cuffe: Yes.

  Mr. F. McGrath: Yes.

  Mr. Costello: Did anybody say that the Minister must consult the DPP? I am criticising the Minister for consulting somebody who is irrelevant to the situation.

  Mr. McDowell: He is not irrelevant.

  Mr. Costello: Yes, he is.

  Mr. McDowell: No, he is not.

  Mr. Costello: The Minister knows well that the only person who can make a decision on a criminal prosecution is the independent Director of Public Prosecutions.

  Mr. McDowell: Yes, and the DPP has no function in advising the Garda about whether it should object to a licence.

  Mr. Costello: We are not talking about objecting to a licence.

  Mr. McDowell: Yes, we are.

  Mr. Costello: We are talking about a prosecution for events taking place in an alcohol-free zone in a licensed premises.

  Mr. McDowell: We are talking about the Garda warning people that they are in breach of the licensing laws.

[1506]   Mr. Costello: The Minister did not make it clear——

  Mr. McDowell: It is an area of mixed competence between the Attorney General and the DPP, as I said in my opening remarks.

  Mr. Costello: How could the Minister so judiciously avoid mentioning the Director of Public Prosecutions in all his utterances?

  Mr. McDowell: It is not my function to encroach on his independence.

  Mr. Costello: Nobody is suggesting that the Minister should encroach on his independence. He could have acknowledged in public that the Director of Public Prosecutions made the decisions in these matters, but he did not do so. As a result, he has had a number of cases in the courts and I presume there are other cases which we do not know about. A case has been sent to the High Court. We are coming in here because the Minister was sure that there was nothing wrong with the legislation. He said that to the public. We have come here to spend the entire day on an emergency Bill because the Minister was wrong.

  Mr. McDowell: No.

  Mr. Costello: I know it.

  Mr. McDowell: There are no other prosecutions——

  Mr. Costello: Black is white, Minister, we know that. In many ways, one can understand why the Director of Public Prosecutions took the view he did. During our consideration of the Bill before the House, we have not examined the text of the amendment from which the DPP was operating. Section 14 of the 2003 Act relates to restrictions on the presence in bars of persons under the age of 18. It does not refer to a bar counter, but to a bar, the sort of area where John Wayne and the lads would have had a shoot-out. When one refers to a bar, one refers to a space or to a room. The bar counter is a separate area.

One must remember that the real problem emanates not from that but from the 2003 Act. The new section 34 has been incorporated into the 1988 Act. It reads:

(1) The holder of a licence of licensed premises shall not, subject to subsections(2) to (4) of this section, allow a person under the age of 18 years to be in the bar of the licensed premises at any time.

We were all lax when that was going through, since it is clear. It does not refer, good, bad or indifferent, to whether alcohol is on sale in the bar of the licensed premises or to a bar counter. It refers only to allowing a person under the age of 18 years to be in the bar of the licensed premises at any time. I can quite understand why the [1507] Director of Public Prosecutions came to the conclusion that it was a breach of the legislation if one had even an alcohol-free event in the bar of a licensed premises. There was a grey area from the word go and the Director of Public Prosecutions is undoubtedly the man who got it right, and that is why we are here trying to deal with it.

The Minister mentioned that it would be improper for him to consult the Director of Public Prosecutions. It would certainly be improper for him to seek to influence his view. However, finding out his view may not be as improper as the Minister imagines. I refer him to correspondence initiated by my colleague, Deputy Quinn, back in 1998, with the then Attorney General regarding this precise issue. He had a certain concern about the McCracken tribunal and why certain matters were not being prosecuted regarding a certain gentleman who figured strongly in its business. There was a delay of prosecution of more than a year. He corresponded with the then Attorney General, Mr. David Byrne, regarding those matters. The reply is interesting, since he states quite clearly that it would be improper to seek to influence the Director of Public Prosecutions in any way. However, it gives one or two instances in which contact was made between his office and the Director of Public Prosecutions.

  Mr. McDowell: That is provided for.

  Mr. Costello: My point is that it is one thing to seek to influence the Director of Public Prosecutions in carrying out his independent duty to prosecute but another to seek to find out what his mind is regarding a matter. When the Minister himself says ex cathedra that there is only one view or opinion on the matter, and that he was right at all stages and has not in any way sought to determine the view of the Director of Public Prosecutions, there is a question mark over him. He could have dealt with it in a more appropriate fashion before he announced to all and sundry that he was right and the Director of Public Prosecutions proceeded with the prosecutions which have brought us here today. That is the legal side of the matter.

I have also raised some other points in my amendments. Since we are here today to seek to amend one section of the Intoxicating Liquor Act 2003 dealing with under age drinking or not allowing youngsters into public houses even for alcohol-free events, it is appropriate to mention other aspects of under age drinking that are equally pressing and that we might have included in this legislation. What are we to do about the thorny issue of the 9 o’clock barring order regarding youngsters under 18 that has arisen throughout the country, particularly in tourism areas, and which, I suggest, should be delayed to 10 o’clock? There is the question of the lack of any labelling on products sold in off-licences, where the real under age abuse takes place, and the promotion [1508] and marketing of alcohol products exploiting young people. All of those deal with the same age group with which we are dealing here. I hoped the Minister might have given us the opportunity to deal with those pressing issues too.

It is disappointing that we must come back and rush this legislation through, getting no proper opportunity to take the sections in their proper place or introduce worthwhile amendments that might also be introduced now and that will, in some cases, cause trouble again next year.

  Mr. Cuffe: I propose to share my time as follows: ten minutes for me, ten for Deputy Ó Snodaigh, three minutes and 20 seconds each for Deputies McHugh, Healy and Finian McGrath.

  Dr. Cowley: Is that agreed? Agreed.

  Mr. Cuffe: I welcome the changes in the Bill, but we should have been given more than 36 hours’ notice. It is very difficult, particularly for those of us in smaller parties, to pull out the primary legislation, examine it, read the new legislation and form an opinion on it. It is unfair to rush legislation so. The Minister might have given us a week to look at it. It raises practical difficulties for Independent Deputies or Deputies in smaller parties in getting to grips with the legislation.

I want to discuss the cartel in the licensed liquor sector, the rights of children, and superpubs. Yesterday my colleague, Deputy Gormley, described the Minister as a binge legislator. I want to continue with that analogy for a few moments. Rather than confronting the fundamental reform the legislation needs, he is merely tinkering with the system. The binge drinker promises to change tomorrow, and the binge legislator promises to radically reform the system. I know from the last few lines of the Minister’s speech that he too is making promises to reform, but not just yet. Just as when Deputy Brennan promised us a metro in a matter of weeks two years ago, I have my doubts as to whether fundamental reform of the legislation will happen in the coming weeks. A few weeks is a long time in politics, and is certainly a long time when one examines the promises that have been made by this Government to introduce legislation within weeks.

I would like the Minister to reform the system rather than tinker at the edges. In the absence of fundamental reforms, he is playing into the hands of the very rich people who control the licensed industry and a chosen few who understand the intricacies of the legislation. A knowledge of the inner workings of the Byzantine liquor licensing regulations and legislation is in the hands only of an elite, a handful of wealthy individuals who are passing their secrets on from generation to generation. It should not be that way. It should not be a small number of legal experts who must be consulted to make the smallest change to a [1509] licensed premises. A cartel should not be allowed to operate within the licensed liquor sector. The liquor business here is run by a cartel, and I want the Minister to break it open. It seems to conform with the ideology that he professes in debate. Meanwhile his partners in Government kow-tow to the licensed vintners. I wonder if the Minister is willing to allow that cartel to continue, to allow a virtual monopoly to continue to operate. The Green Party believes that the current restrictions on entry to and operation within the liquor consumption and sales area should be considerably relaxed. We see no reason the wealth of planning legislation should not be used as the primary legislative tool to control the operation of the licensed liquor sector in this country. Some changes could bring about a more sensible and mature approach to alcohol in our society. We encourage people to enjoy a glass of wine with a meal or a pint of beer with a pizza, but currently it is difficult to do that. Getting rid of these restrictions would lead to a more family-friendly approach to drinking and enjoying alcohol in a sensible manner.

  Mr. McDowell: I fully agree.

  Mr. Cuffe: We would like to see greater rights and responsibilities given to the consumer, and the winding-up of the cartel operating in the sector.

The Minister spoke of taking pride in his accomplishment of getting children out of pubs. Given that pubs are the public houses of Ireland, we should rethink how these public places operate. Instead of banning children from pubs, we should make them more child-friendly. That is an ideological view but it should also be a practical view. In an era that focuses on children’s rights, should we make these public places more child-friendly as places for socialising? What is the Minister doing for children other than banning them from public houses? Changes are necessary in this area. Instead of not allowing children witness what goes on in public houses, we should make fundamental reforms to the culture of the public house.

People should not get blind drunk in public houses. There is a responsibility on the individual and on the publican to ensure that this does not happen. The Minister introduced significant reforms in the previous legislation in this regard but I suspect there has been no real attempt by the Garda to enforce the provisions put in place last year. Not much has happened. There are significant responsibilities on the individual, the Garda and the publican.

The Minister spoke about getting back on the straight and narrow, and about fundamental reforms. When will he address the stark reminder of this monopoly, the super-pub? The super-pub is characterised by very large premises, loud music, few chairs and security on the doors. Last week I encountered the phrase “mass volume vertical drinking”, MVVD, which characterises [1510] the super-pub, where loud music and alcohol are pumped at the customer. What is the Minister doing to control this? By continuing with the monopoly, the Minister is increasing the pressure on the traditional pubs to either sell on to allow a barn to be built in place of the pub or to rip out the guts of the pubs, the old interiors, and double, treble or quadruple the size of the premises. This is happening all over the city, throughout Temple Bar and the suburbs. The Norseman, The Foggy Dew and The Temple Bar pubs have all been rebuilt as super-pubs. The Minister has a responsibility in this area as do the planners and county managers, but the liquor licensing sector has fuelled the expansion of these premises. I want the Minister to address this.

Unless the Minister loosens the conditions of entry to the sector, we will continue to have these super-pubs in the centre of Dublin, with suburbs the size of Limerick with one or two pubs which are in the hands of a few wealthy individuals. I want the Minister to make those fundamental reforms. Those pubs have the atmosphere of an airport departure lounge and they are souring Ireland’s image at home and abroad.

I welcome the words in the latter part of the Minister’s speech about making fundamental reforms. Yet in much the same way as the binge drinker promises to reform tomorrow, I wonder how long we will wait for that legislation to arrive. I welcome the few simple changes in the legislation. I am opposed to running the legislation through so quickly and I look forward to the fundamental reforms necessary.

  Aengus Ó Snodaigh: Like most Deputies, I have no problem with the general thrust of this legislation, but the fact that we are back here so quickly after passing the Intoxicating Liquor Bill, which is now the Intoxicating Liquor Act 2003, indicates some incompetence in the way the Minister has approached legislation. On every occasion there seems to be a rush towards legislation. It seems that we return every time to deal with the same issues because we have not taken the time to get them right. In the immigration area we were promised a comprehensive immigration policy but we have dealt with three immigration Bills since I was elected. This is the second Bill dealing with intoxicating liquor and we are promised codification at some stage. That has obviously been promised to the Dáil on many occasions, since the Minister outlined how long we have been awaiting that. If he succeeds in delivering it I will welcome that, and I hope it will address some of the questions raised by other Deputies.

The fact that we are here today is an admission by the Minister and the Attorney General that they no longer believe they are correct in their view. If they did, they would defend the cases taken in the courts against the Director of Public Prosecutions, or at least support those facing prosecution by the DPP. They would also have [1511] waited for the outcome of the High Court case before rushing in legislation.

Deputy Jim O’Keeffe gave the lie to the Minister’s assertion that this was an urgent matter. He pointed out that it had been raised by him and others in November 2003 and April of this year so it is not as urgent as has been portrayed in the media and in this House. Many other Bills are as urgent or more urgent. If the Minister had the conviction he had last week when talking to the media on this matter, he would use the offices of the High Court and the Supreme Court to defend his belief.

The Minister said that the DPP and the Attorney General had different roles in terms of advice for the Garda. Will he consider changing that situation so that the sole adviser to the Garda on laws relating to intoxicating liquor is the DPP, rather than having a Cabinet member advising the Garda on those laws?

Yesterday Deputy Gormley called the Minister a binge legislator. He definitely is in terms of two issues, namely, the Intoxicating Liquor Bill and the Immigration Bill. The last Intoxicating Liquor Bill was published on 17 June 2003 and went through Second Stage on 24 June. On 2 July it was guillotined so we did not have time for proper consultation on that Bill. It was rushed. Legislation passed within two or two and a half weeks of being published is rushed legislation. It does not allow Deputies and others sufficient time to ponder all the issues involved. I know there were consultation papers regarding the Bill in question. The hospitality industry lobbied all Deputies. However, they, like Members of the House, focused on the issues. If we had been given more time, we might have been able to pre-empt those issues. We tried to pre-empt some of the other issues the Minister admitted we need to revisit, including the time at which people under 18 must leave licensed premises. There was an opportunity today to repeal the relevant section and we could have done so in support of the tourism and hospitality industry. It would not have taken much to add some paragraphs if the Minister believed it was an important matter, as he said during the summer.

The Director of Public Prosecutions is an independent officer of the State. However, it is sad that the DPP and Garda have little else to do but take prosecutions against people trying to promote the proper and reasonable use of premises for the benefit of young people, such as No Name Clubs where no alcohol is allowed. Such people are trying to make inroads into a culture of alcohol use. The DPP does not have to ignore the law but many cases are more urgent. The DPP told the Committee on Justice, Equality, Defence and Women’s Rights his office had a significant backlog of cases. Without interfering with the role of the DPP, we can ask why he took this prosecution so quickly while many cases have sat on his lap for years.

[1512] It is notable that gardaí have the time to go to Old Wesley and other venues when we cannot get them to deal with drug dealing and joyriding in communities.

  Mr. F. McGrath: Well said. That is a common complaint.

  Aengus Ó Snodaigh: Gardaí in Dublin 4 have nothing better to do than to walk from Donnybrook Garda station to try to prosecute Old Wesley. If such gardaí have nothing better to do, they should go to Ballyfermot or other locations where I guarantee their time would be well spent. There are problems in working class housing estates in Dublin and throughout the country which need Garda attention, and the Garda Commissioner should be reminded of this. When the DPP comes before the Committee on Justice, Equality, Defence and Women’s Rights, we will question him on this issue.

There has been a significant increase of 41% in alcohol consumption but this is not just caused by young people. The increase needs to be dealt with in different ways. A future Intoxicating Liquor Bill must address such problems so we do not have to continually make minor changes.

  Mr. McHugh: It defies logic how the Minister for Justice, Equality and Law Reform, an eminent senior counsel and a former Attorney General, could arrive at a conclusion in regard to legislation he introduced which is at variance with the view of another legal professional, the DPP. The fact that the current Attorney General also has a view that equates with that of the Minister and is consequently at variance with the view of the DPP makes a farce of the legal advice floating around the Houses. Somebody is wrong and somebody issued advice which is incorrect. Either the Minister and the Attorney General are wrong or the DPP is wrong. As Members whose role it is to consider legislation, we are entitled to know who is wrong if we are to have confidence in any legal advice we may be given in the House.

  Mr. P. McGrath: It could not be the Minister.

  Mr. McHugh: We are also entitled to know who is wrong if we are to have any confidence in opinions uttered by the Minister. I expect the Minister to clarify the situation during this debate.

There is a serious lesson to be learnt from this debacle, namely, that framers of legislation should not become trapped in a tunnel vision approach in their pursuit of an ideal. If the approach is not all embracing, receptive to diverse views and generous in acknowledging differences, the result is flawed legislation such as that we are trying to correct today.

To deal with the specifics of the Bill, I note that the memorandum specifically mentions nightclubs and function rooms of hotels. However, other such licensed premises also hold alcohol-[1513] free youth discos, for example, community centres with bars, sports clubs etc. Will the Bill cover these?

It puzzles me that the Bill amends the Intoxicating Liquor Act 1988 while it is section 14 of the Intoxicating Liquor Act 2003 which created this uncertainty. Section 14 replaces a particular section of the 1988 Act, but surely it replaces the section in place at the time not a section which will be in place if this amending legislation is passed. I tabled a parliamentary question to the Minister on this issue in October 2003. In his reply he confirmed:

The position is that section 14 of the Intoxicating Liquor Act 2003 prohibits persons under the age of 18 years from the bar of licensed premises after 9 p.m. Where a part of a licensed premises contains a bar counter which is physically closed and is not used for the supply of intoxicating liquor, such a part of the premises does not constitute a ‘bar’ within the meaning of the 2003 Act.

The problem that arises in regard to the Minister’s advice is that it was used by certain organisations as justification for holding alcohol-free youth discos in licensed premises, some of which subsequently ran into difficulty. The Minister should address this in his reply.

In general I am somewhat baffled by the gusto with which members of the Garda endeavoured to enforce their view of this legislation. All of the organisations involved without exception are bona fide organisations which have as their central ethos the aim of having youths enjoy themselves without alcohol. In such circumstances, it was over the top for gardaí in uniform to visit such functions. Gardaí should apply themselves to more urgent duties.

I object to taking all Stages of the Bill today. We should have an opportunity to consult the relevant organisations to ensure that when we pass legislation in the House, it is appropriate and relevant.

  Mr. F. McGrath: I am glad to have the opportunity to speak on the Bill which will allow under 18s to attend alcohol free events in licensed premises. I welcome the Bill and, despite the short notice, I support it because it is sensible. I hope, however, that it is the beginning of a row-back on the nanny state, which has blighted this State over the past 12 months.

Many of our people are fed up with the new intrusion by the State into our personal lives and personal decisions. I do not tell the Minister what to do in his personal or private life. Why should he or any other Minister tell me I cannot bring my family for a meal in a pub after 9 p.m.? Why should the Minister for Health and Children push thousands of smokers on to the streets in the cold and rain when a sensible policy such as designated smoking rooms in all pubs is a solution? Why should the Government stop elderly pensioners, many living alone, visiting their local pub [1514] for a drink and a cigarette? This nanny state practice must end. This intrusion into personal lives and choices is an attack on civil liberties. I urge the Government to reflect. It should not be afraid to do the sensible thing and row back on the introduction of the nanny state.

I support the Bill. I pay tribute to the many youth clubs and groups that organise events for young people. Society does not pay enough attention to voluntary workers in community groups. The whingers or the sit-on-the-fence merchants often seem to dominate this affluent society. That is something Irish people should watch. We should always assist, praise and support the carers in our community, particularly those working with young people.

1 o’clock

In the context of the massive alcohol problem in this State, we need to get away from the blame game and accept that every citizen has a duty to respect alcohol, to inform children about the dangers of alcohol, to look after our own children and to preach and practice moderation. Moderation and balance are key in our battle against alcohol abuse, particularly among young people.

I am always fascinated that on Bastille Day in France thousands of young people can descend onto a beach at 11 p.m. to watch a fireworks display without cans or bottles and no air of threat or violence. It is not that they do not drink. They have the right attitude to alcohol, and binge drinking is not on their agenda. We could all learn from countries such as France. It is something we as legislators and leaders of society should constantly bear in mind and study.

I welcome and support the Bill.

  Mr. Healy: The second report of the Strategic Task Force on Alcohol sets the scene for this debate. It is worth quoting from the section on children which states:

The 1999 international ESPAD report (European School Survey Project on Alcohol and Other Drugs) showed that Irish boys and girls aged 16 years are among the highest alcohol abusers in Europe in terms of binge drinking and drunkenness. One in three were regular binge drinkers and one in four reported being drunk ten or more times in the last year. The more recent Health Behaviour in School Children (HBSC) survey reported a decrease in the number of children under 15 years of age experimenting and consuming alcohol, but there was no reported change in the drinking patterns of the 15 -17 age group... In 2002, among the 12-14 age group, 16% of boys and 12% of girls were current drinkers in comparison with 1998... However, in the 15-17 age group, about half of the boys and girls were regular drinkers and drunkenness was also prevalent (60% boys, 56% girls).

That is the background that overshadows this debate.

[1515] Many speakers on this side of the House have criticised the speed with which this Bill is being taken in the House. I accept those criticisms and reservations. However, this is important and urgent legislation and I certainly support it.

I take the opportunity afforded by the debate on this measure to thank and compliment all those organisations that support young people. I particularly wish to record my thanks, congratulations and compliments to the No Name Club both nationally and locally in south Tipperary. People like Eddie Keher and Arthur Kiely, natives of my town of Clonmel, who are heading up this organisation have done hugely important and advantageous work. The part of the local organisation in Clonmel headed up by my colleague, Councillor Phil Prendergast, is doing and has done tremendous work in this area. That club and similar clubs should be supported by public representatives and should be grant aided by Government.

I want to put on record that I, like others, am amazed by the manner in which the Garda Síochána dealt with this issue in the Dublin area. There are other more important matters that should be dealt with. The gardaí in Clonmel have supported the No Name Club from day one, have been involved with the club in recent non-alcoholic discos and have been available on a voluntary out-of-hours basis to support local volunteers. I compliment them on that. It is an indication of common sense that people in the country have compared to people in Dublin.

Clubs such as the No Name Club should be supported and financed by way of a Government grant to ensure an alternative to alcoholism, drunkenness and binge drinking is available to young people. I hope the Minister will look at that suggestion.

  Dr. Twomey: I propose to share my time with Deputy Paul McGrath.

The people of Wexford will be delighted with this legislation. I and other Deputies from County Wexford have regularly called for more gardaí and more policing in our county. Like all my colleagues in County Wexford we expected to get more resources to reduce the level of very serious crime and to reduce the level of public order offences. It therefore made us very uneasy to read in the newspapers that gardaí were invading teenage alcohol free discos as if they were some type of speakeasy. In some respects it is quite funny because when I was young I remember reading about gardaí raiding poitín stills in different parts of the country. It seems ridiculous that they are now raiding alcohol free discos. Therefore, the sooner this legislation is passed the better.

There is far more pressing legislation that should be rushed through this House. The Minister for Justice, Equality and Law Reform seems to have priority regarding rushing legislation through the House, whether in regard to keeping [1516] children out of pubs or non-nationals out of the country. In the legislative programme for this Dáil session, the Minister of Education and Science, Deputy Hanafin, who was Chief Whip at the time, said that health will continue to be a priority for this Government. There certainly does not seem to be any move to rush the numerous pieces of important health legislation through the House. Some of it has been waiting for years. Even though Deputy McGrath might be fuming at the thought of the tobacco Act which was passed last year, there are many areas of health that could benefit from the sort of priority face-saving legislation that the Minister for Justice, Equality and Law Reform is rushing through this House on occasion.

The Health (Amendment) Bill and the Health and Social Care Professionals Regulatory Bill are expected to be introduced in the House during this session. I understand they have been on the legislative programme for a number of sessions. We are also told that Bills in respect of which the heads have been agreed and texts have been drafted will be published some time in 2005. It is important to read these pieces of legislation into the record. One is the Alcohol Products (Control of Advertising, Sponsorship and Marketing Practices/Sales Promotions) Bill. This is to protect children and adolescents from being overexposed to alcohol advertising. That is good legislation and perhaps will tie in with the legislation being dealt with here. However, there is far more important legislation, for example, the Irish Medicines Board Bill to amend the Misuse of Drugs Act, the Irish Medicines Board Act and the clinical trials Act. I have been trying to introduce an amendment in relation to it in the Dáil since the beginning of this session. In the past six months very important events have occurred. A very popular anti-arthritis drug was quickly withdrawn from the market because it was shown that long-term use caused serious, sometimes fatal, problems for people. There is an ongoing debate on a very important anti-depressant drug which is still on sale in this market. There was a programme on the BBC only last week which revealed that problems highlighted six months ago had not been dealt with by the regulatory authorities in the UK. We do not seem to have much to say here either. I hope my amendment will come through and that I will be able to discuss it with the Minister for Health and Children. There is also the medical practitioners Bill to provide for the registration of doctors and the regulation of their activities.

As a doctor I am aware how important it is for the public to have the utmost confidence in their doctors, whether they are GPs, junior doctors or consultants. The Medical Practitioners Act was passed in 1978 but since then medical practice has changed dramatically. The medical profession has pushed for the Act to be amended, yet its calls have been consistently ignored by the Government.

[1517] There is a long list of Bills concerning health services, the heads of which are still awaiting the Government’s approval. There is the adoption Bill which includes the ratification of the Hague Convention. Will the Minister enlighten the House as to when the Hague Convention was made? The nurses (amendment) Bill, which will fulfil the recommendations of the Commission on Nursing, is still awaiting approval. In 2005, when the Bill will be published, no nurses will qualify in the State due to the transition in training requirements from the hospital system to diploma course. The pharmacy Bill to update pharmacy legislation remains on the list while changes occur in the primary health care sector in the funding and organisation of general practice. Touchstone Limited is offering to build primary care centres, anchored with retail pharmacy outlets. However, legislation to assist independent outlets compete with these developments, which will have long-term consequences for patients, has not been introduced.

Will the Minister use his powers of persuasion to rush legislation through the House and guillotine Bills so as to enable discussion of important health legislation? This is the only way the Government can show that health issues are its priority. The Intoxicating Liquor Bill is simply face-saving legislation to prevent the proud owner of Lissadell House from getting the better of the Minister for Justice, Equality and Law Reform. I hope it is passed quickly so time can be devoted to more important and vital legislation.

  Mr. P. McGrath: I thank Deputy Twomey for sharing his time. Once again, the House is addressing emergency legislation introduced by the Minister for Justice, Equality and Law Reform. At this stage, he should be known as the Minister for emergency legislation as he is always in a tizzy about something and having to amend something he has already done. It is typical of his shooting from the hip and thinking afterwards.

However, I welcome this legislation in the hope it will clear up the confusion that exists in this area. I regret the Minister has not introduced more comprehensive legislation in dealing with drink-related problems and crime. The volume of drink consumed by our young people, and its subsequent difficulties, is a serious matter. Recently I learnt that it is now common for young girls not to eat their dinner on the Friday or Saturday evening they head out because it makes it easier to get merry. Young people purchase alcohol in off-licences to consume at home before they head out on the town, again to get tipsy quickly and cheaply. I always understood that going for a few jars was more a social occasion. When people behave in such a way, there must be something wrong with society. In nightclubs, young people, girls in particular, consume a drink known as “fat frog” costing €15 a glass. They can consume a number of these concoctions in a night. What about the cost of such a drink? What will be the long-term consequences of such consumption? As [1518] a society we must introduce proposals to tackle these problems.

The Intoxicating Liquor Bill facilitates the no name clubs and non-alcoholic discos. The no name clubs do excellent work and should be supported in whatever way possible. It is a good way to show young people how to enjoy themselves without alcohol. Regrettably, the age when young people want to socialise without alcohol is falling. Fifteen and 16 year old teenagers now consider themselves too old for the non-alcoholic discos, as 12 and 13 year olds attend them. An alternative lifestyle must be provided for them.

One mistake the Minister made in this legislation was to bar children under 18 years from pubs. While I accept the need for controls and to be conscious of the alcohol problem, I saw an example of this mistake during the summer. We in Westmeath are not used to glory on the football field but this year we had a long run, winning the Leinster Final. On the victorious Saturday evening, it was 10 o’clock when one reached Kinnegad from Croke Park.

  Mr. McDowell: I hope the Deputy left his car at home before he went to the pub to celebrate.

  Mr. P. McGrath: It was throbbing with people, an example of a family occasion where families tend to be sensible. By barring children from pubs, we are cutting across such occasions. Are we saying that by 9 o’clock because no children are allowed in the pub they must leave? Does this mean that the children and one partner stay at home while the other heads into town to join in the celebrations? I prefer to see families joining in celebrations together because they show more restraint and a more sensible approach to alcohol on such occasions. The ban on children gives the impression that celebrations are for big, grown-up people. Surely we want to encourage families to be together as much as possible. The Minister should look at that again. It is within his competence to design a system to achieve his objective, which is to avoid having children in premises late at night when people are tanked up. We do not want that.

  Mr. McDowell: I am much more concerned about the 16 and 17 year olds.

  Mr. P. McGrath: Yes, but this is not the solution.

  Mr. McDowell: If the Deputy will show me another way, I will take it.

  Mr. P. McGrath: This is not the way to solve it. It is affecting families in other ways and is bringing the law into disrepute. We must avoid having people say: “To hell with the law; look at the stupid law they have brought in now.” We must bring the people with us. We must make them aware of the problems and work with them in trying to find a solution. Barring under 18 year olds from pubs from 9 p.m. is not the solution. [1519] The difficulties were visible throughout the country on summer evenings and following sporting occasions.

Another related issue is the smoking ban. The legislation was not the Minister’s but emanated from the Department of Health and Children. However, having people congregate outside pubs on the main streets of towns at night is not the way to do business. Some of the smokers have drinks in their hands while others do not. As the night wears on, they get tanked up and when people walk past them on the streets, comments are made. This is leading to difficulties. The people concerned are outside the jurisdiction and control of the pub. Perhaps they should not have their drinks with them outside but in many cases they do. It means they have weapons on the street if a row breaks out.

There should be a facility provided by the publican within his or her jurisdiction. The publican must be responsible for providing an area in which the smokers can safely congregate. Obliging them to go out on to the street is not safe. It is also not a pleasing sight to see clusters of people smoking outside every pub on a street. It was a mistake to deal with the matter in that manner. I am not aware if statistics are available on the difficulties that have arisen as a result of people congregating outside pubs on the street at night. I suspect, however, that there are difficulties. There were difficulties in my home town soon after the ban was imposed.

I have walked down the street at 10.30 p.m. or 11 p.m. and encountered the various congregations of people outside the pubs who have had a few jars. It is not the nicest of experiences to walk past them. It can generate all sorts of attention that would not occur if they were indoors or in some other location. The Minister might have experienced it as well. If he came to provincial Ireland, I am sure people would recognise him and shower their attention on him.

  Mr. McDowell: They would come up to me, shake my hand and tell me I am doing a great job.

  Mr. P. McGrath: The local elections provide a good picture of what happened to the Progressive Democrats throughout the country. I believe the Minister would be reluctant to ask them to shake his hand on that achievement. There was a major reduction in the party’s popular support as well as a major loss of seats. The Minister should not put himself forward as having won the hearts and minds of the public.

In the interests of law and order the Minister should make it obligatory for publicans to provide some other solution to the smoking ban, rather than having the smokers out on the streets. It is possible to create a smokers’ atmosphere somewhere else, be it at the back of the premises or in some type of severely ventilated area. Let us remove the clusters of people from outside the pubs in the interests of public safety.

[1520]   Mr. English: Smoking outside the pubs is an issue. It is not the Minister’s responsibility but there is an opportunity for the two Departments to work together. Perhaps if this Bill was not being rushed through, it could have dealt with it.

There is a problem with people gathering outside bars with their pints to smoke. Some areas have by-laws that forbid drinking while in other towns people are allowed to drink on the street. It is a problem. I am not sure if the Minister was present for the debate on the smoking ban legislation but we said at the time that it would lead to trouble on the streets. It is doing that and will cause more trouble. It is causing intimidation, which is a matter for the Department of Justice, Equality and Law Reform. When young ladies or other people are walking past a bar and a group of lads has congregated outside after having a few pints, they will make comments. It is causing rows late at night as well. Action needs to be taken to get people off the streets. Let them smoke at the back of the pub or somewhere else. Not many pubs can provide that facility but we need to find a way to deal with it because there are problems and there will be more in the future. It must be addressed urgently.

Apart from the crime considerations, it looks bad to have people standing or sitting on the streets with a pint and a cigarette. It looks bad even if they do not have a pint.

  Mr. McDowell: They are not allowed to drink a pint on the street.

  Mr. English: Many of them are bringing pints out with them. There is confusion about this. Some people believe that unless the council has passed a by-law preventing it, they are allowed to do it. This needs to be clarified. In other cases, people thought they could have chairs and tables outside until a certain time in the evening.

  Mr. McDowell: I am informed that on occasion there can be a licensed curtilage that includes the pavement.

  Mr. English: That seems to be working well. However, the problem is where there are doubts about it and where people are gathered outside in gangs. The smoking and how it looks are the problem. When one drives through a town one will see a gang of people gathered to smoke outside every second doorway, which does not give a good impression of the town. The smoking ban is probably a good thing overall but some aspects of it must be sorted out.

The same applies to the Bill before us. It was not perfect when it was introduced so we now have to correct it. I congratulate the Minister on bringing this Bill before us so quickly. I wrote to the Minister when the problem arose and, in fairness, he replied to me and took action. He clarified his thoughts on the legislation but publicans and nightclub owners were afraid to hold events in case they would be prosecuted. At the time it [1521] was not good enough simply to state that they would not be prosecuted because they still had grave concerns.

I welcome the Bill being brought to the House in the second week of the session. It is wrong, however, to rush it through the House today. Many Members are anxious to speak on the Bill so we should spend a few days on it to get it right. Getting the Bill wrong once was just about acceptable; if we get it wrong a second time, we will suffer. The public will blame the Minister.

  Mr. McDowell: I would enjoy it.

  Mr. English: The Minister would enjoy it but it is his reputation that worries me. People will blame the Minister. He is already getting the blame. I will not tell him some of the names he is called. This Bill corrects an anomaly in the previous legislation that resulted in functions for young people not being held. The proprietors were afraid to have the young people on their premises.

Young people are better off inside, where we know where they are, than outside. I believe the Minister agrees with that. The Bill makes it clear that nightclubs, hotels and other venues can hold functions for young people. However, there are still doubts that require clarification. If a hotel has a function room adjoining the venue, the bar in the function room must be securely closed. I presume the other bars in the hotel are allowed to remain open. What happens if somebody wanders from one bar to another, which can happen at functions? The position is not clear, which makes me nervous.

I am also concerned about the provision that the bar must be securely closed. Let us take as an example the nightclub in the Ardboyne Hotel in Navan, where up to 1,500 people might come to the disco. For insurance reasons, everything is calculated in detail. That includes the number of people who will be sitting, standing and so forth. I accept that the bar cannot sell alcohol and I agree with that. If the bar cannot be open, they will have to construct another bar in front of or at the side of it or at the door. It will be like the community centre with a little table with bottles of Coke and bags of crisps. That is fair enough but the people about whom we are talking are 16 or 17 years of age and they are into more sophisticated things than the little table in the corner. I would like that clarified. Does the bar have to be closed? What do we expect people to do instead? From where will they sell the drinks — Coke, water and orange?

  Mr. McDowell: Anywhere they want.

  Mr. English: Where will they wash the glasses? It is not practical. I have worked in many discos. The machines for cleaning glasses are behind the bar.

[1522]   Mr. McDowell: The logic of what the Deputy is saying is that I should allow the bar to be open but not allow it to serve alcoholic drink.

  Mr. English: Correct. That is how it always was and it worked very well.

  Mr. McDowell: We could not enforce it.

  Mr. English: It was enforced for years before the Minister brought in this crazy legislation. People always held functions. I went to discos in places——

  Mr. McDowell: There was massive youth drinking.

  Mr. English: There was not. The drinking was done before the disco, and the Minister knows that. A bit of common sense is needed here. People drank outside on the street and then went into the disco. I do not believe anybody could show me a bar that held a junior disco and sold drink. Why is the Minister so afraid this will happen now if it did not happen before the introduction of this legislation? I do not know of one publican who would risk blatantly selling alcohol at a junior disco, or a disco for young people under 18 years of age.

  Mr. McDowell: It may not be advertised as a junior disco.

  Mr. English: I refer to a disco for under 18 year olds. It does not matter what it is advertised as. Apart from the logic of this, from an operational point of view, it will probably be impossible to operate this second bar in front of the main bar. Have we thought this through from an insurance point of view? If a new bar is built and it takes up a great deal of space in front of the main bar, fewer people will be permitted into the place for insurance purposes, fire certificates and so on. The Minister has not thought about this. He should not shake his head at me; it is a serious matter. Proof that he has not thought about it is the fact the Bill is being rushed through and he will not allow it sufficient time. The Minister should think about it and see whether something can be done on Committee or Report Stages. I am not convinced the bar must be closed, although I agree no alcohol must be sold. I am coming from the same standpoint as the Minister. We both want the same end result, but we must be practical. Pubs and nightclubs are suffering enough as it is.

When discussing liquor and public order Bills, I asked about staff on premises. Public houses and places selling alcohol are under pressure financially not only as a result of legislation but as a result of a change in drinking habits and attitudes. The issue of security staff and trained bar staff dealing with young people and people chancing their arm to get a drink is not adequately dealt with. I asked if we could consider giving a tax break so that a publican could have people, sep[1523] arate from bar and security staff on his premises to roam around. The Minister was not in the House at the time but his colleague, who has recently been promoted, the Minister for Defence, Deputy O’Dea, was. It is the bar owner’s job to stay on the floor of the premises, wander around and check what people are drinking. Even at teenage discos, people could sneak in with vodka or one of these new drinks in their pockets. People hired to roam around should be distinguished from bouncers who can be seen coming a mile away as they are generally big people and dressed in black. When I ran a bar in Navan, the owner was a small woman — smaller than me, which is hard to believe — and she spent her time on the floor of the bar. She was not even noticed and she caught people doing things they should not have been doing. She could afford to do that because she owned the bar. Other pubs cannot afford to hire staff to do that.

The Private Security Services Act 2004 has still not been implemented. Bouncers still do not have to be trained and there is no registration system. That is a major problem. All these problems come together. Why has the Private Security Services Act 2004 not been implemented?

  Mr. McDowell: It will be in three weeks’ time.

  Mr. English: When was it passed? Did we last discuss it a year ago?

  Mr. McDowell: It was introduced four years ago.

  Mr. English: My colleague, the former Deputy Farrelly introduced it in 1998 or 1999. The House did not accept it. It was thrown out and brought back in.

  Mr. McDowell: I pushed it through before the summer.

  Mr. English: We discussed it a year ago. It is a long time ago. If I am correct, this House passed that Bill was passed in 2003 and not 2004. It has been sitting on someone’s desk throughout 2004. Does the Minister not believe it is urgent and more important than this legislation, although this Bill is important? That Act needs to be implemented.

This Bill shows young people we are here to act for them and to correct an anomaly. The whole alcohol debate is wrong. We constantly talk about new laws. We need to have a proper debate on alcohol that will achieve results. Despite all the laws preventing young people entering premises to get drink, they can still get alcohol. That is the bottom line and a point we are missing. We do not seem to be winning that battle. This has not just been happening in the past two or three years but has been going on long before the Minister’s time in office since I was 12 or 13 years of age. There has been under age drinking for a long time but it is just more [1524] prominent now because young people do not care who sees them. When my friends were 13 years of age, at least they hid behind a bush but now young people sit on the street and drink in view of the gardaí. There is a lack of respect but that is another issue into which I will not go.

We need to discuss the alcohol issue. It is as much an education issue as a justice one. All the laws we bring in will not solve this. I will not continue to blame the Minister because it is not all to do with his Department in that it is more an education issue when it comes to drink. There would not be a problem if young people did not want to drink in the first place.

There has been a great deal of talk about sponsorship by drinks companies and advertising. Companies want to advertise alcohol and it will be difficult to bring in laws to stop that but we should at least bring in one which would level the playing pitch. For every advertisement for alcohol, there should be one showing the worst effects of alcohol. There is an advertisement on television to deter people from drinking but it does not do so. It is a pathetic attempt and does not deter anybody. The advertisement shows the man half forgetting what happened the night before but it does not show him on the street throwing up or getting battered on the way home. The advertisement could have been much stronger. We need to get serious about these issues if we are to solve this problem so we would not need legislation such as this.

  Mr. O’Dowd: Deputy English has put his finger on the real issue, namely, that regardless of the laws we have, if under age people continue to behave in this way towards alcohol, we will have a more serious crisis on our hands. I have read the report of the strategic task force on alcohol, which is quite damning in terms of our society and how we deal with the problem of alcohol abuse and, in particular, of young people abusing alcohol.

The national alcohol policy is totally separate from the national drugs one. The national drugs strategy is well funded throughout the country. Professional people work on it day in, day out and the health boards focus on it. There are national, regional and local plans. The Government needs to combine the national alcohol and drugs strategy as one strategy dealing with substance abuse. The reason that is not happening at present is that alcohol is a legal drug and the national drugs strategy deals with other drugs that are deemed to be illegal. All of them do harm. In this country, alcohol does more harm than any other drug.

One of the things that would work in fighting the problem of alcohol abuse is a community strategy, a community working together. The Garda is very much under staffed late at night. We rarely see gardaí on our streets on a Friday or a Saturday night. The reality is scenes of appalling drunkenness, aggression and violence. There has been an increase in road deaths and in single [1525] vehicle accidents. The situation in our cities and towns, particularly on Friday and Saturday nights, is disgraceful. We cannot just say “stop” and put laws in place. As Deputy English said, we need a fundamental change in attitude to alcohol based on education, health awareness and so on. Few families or areas do not have somebody suffering serious illness as a result of alcohol abuse, somebody dying or who has died from liver failure or young people who are suffering appalling health outcomes as a result of alcohol abuse.

What we really need is more advertising pointing out to young people how serious and how negative binge drinking is and how it affects them. We need a proper schools policy in this regard. Although a policy is supposed to be in place I do not know who regulates it. We need a much more focused policy on alcohol abuse.

A public attitudes survey for the year 2002 was published in the report of the strategic task force on alcohol and I will refer to some of its results. Some 67% of people surveyed supported the lowering of blood alcohol limits for drivers to 0.5 mg in line with other EU countries. A total of 83% approved of random breath testing being enforced all year around. A significant majority, 89%, supported the view that children should not be allowed in pubs after 7 p.m. We should restrict advertising on television and in public areas.

  Mr. McDowell: Would the Deputy repeat the second last one again?

  Mr. O’Dowd: Some 89% of people agreed that children should not be allowed in pubs after 7 p.m. I do not have a problem with that. I support that policy completely. I see a great deal of sense in it as a parent, teacher and public representative.

One of the issues I wish to address in the time remaining is the drinks industry and the drinks lobby. Advertisements abound in pubs at the moment stating: “Price of the pint reduced to €3 all weekend.” This is a product that was being sold at an exorbitant profit and now the price is being reduced because people are not consuming it in the way they previously did. What are the publicans, hoteliers and the drinks industry doing about the provision of alternative recreational amenities for young people in their communities? They are complaining. The drinks industry and the community generally should look at real alternatives other than, as used to be the case, an alcohol free disco in a cold unheated hall. We should look at more attractive ways of providing recreational amenity for young people. The drinks industry should play its part. It does not at present. Some 57% of people supported the proposition that taxes on the drinks industry should be increased. If that is done then we would soon have a fund available to meet a real need and to be proactive.

The Government appears to be hell bent on building big stadia for world class sport. More power to it. The reality is that money for sports [1526] allocations and grants are needed for local community GAA clubs, soccer clubs and parks in which children can play. What is the point of concentrating on spectator sport? We must help young people achieve the feeling from playing sport or from community involvement that they get from drinking alcohol. A great many things could be done which we are not doing at present. The Government has failed miserably in this regard. Its policy is wrong and unfocused.

Alcohol is a dangerous substance for many people and until we marry a national alcohol strategy with the national drugs strategy we will continue to have these problems. Society needs a properly funded plan. We are at a watershed with binge drinking and related health problems. The Government is not doing enough to combat the problem. Let us sort it out. Otherwise it will be to the eternal shame of the Government at a time when we never had so much money, that there is such a miserable lack of policy and commitment to changing this appalling situation.

  Mr. Stanton: I wish to share time with Deputy Boyle.

  Mr. Kirk: Is that agreed? Agreed.

  Mr. Stanton: I acknowledge the Minister’s attempt to deal with the major problem of alcohol abuse among young people. It is important for all of us in the House to be at one on the issue.

It is unfortunate that all Stages of the Bill are being taken on the one day. It would be useful if we had a couple of days before Committee Stage to give us time to think about some of the problems that might arise. My colleague, Deputy English, has already alluded to a few of them. He is a young man with a great deal of experience who is closer to the action than perhaps the Minister or I would be. He knows what he is talking about and he should be heard, as should other young people because they know what is going on. I do not know when the Minister was last at a disco or one of these events.

  Mr. McDowell: Deputy English has now managed to have less hair than I have.

  Mr. Costello: That is by choice on his part.

  Mr. English: Mine is growing, it can get better.

  Mr. Stanton: As Deputy English stated, intoxicating liquor should not be sold, supplied or consumed on the premises. The issue is whether in a hotel with three or four bars, “licensed premises” includes the whole complex. This issue needs to be teased out because “premises” could mean every single bar has to be closed.

  Mr. McDowell: Or part thereof.

  Mr. Stanton: It is not that clear. We have already had confusion about other legislation in [1527] this area. It could be interpreted in either way. There is also a reference to the effect that any bar counter on the premises should be securely closed. Does “any bar counter” include a mineral bar? It does not specify what kind of bar is meant. Deputy English referred to a temporary bar being set up in front of the other bar. That would be a total disaster. Like Deputy O’Dowd I was involved with young people in a teaching capacity for many years. When they get together with music at night, a phenomenal amount of excitement, enthusiasm and energy is created. A constituent of mine was tragically crushed to death in the Point Theatre a number of years ago. We must be very careful about how we organise bars and places where minerals might be sold. I am sure the Minister is not suggesting that water or minerals would not be sold at under age events. However, we must be clear that the bars that will be set up to sell minerals will be secure and solid so they will not, break, fall or give way. We need to clarify if “any bar counter” includes mineral bars, because if “bar” as defined in the 1988 Act has not been amended in other Acts it needs to be looked at.

Another issue of concern is the lack of specification in the legislation regarding time of closure. My colleague, Deputy Jim O’Keeffe, referred this morning to the approach taken in this regard in New South Wales in Australia. To be helpful I direct the Minister’s attention to what is being done there. It is very interesting how they have dealt with the matter. They have devised policies and guidelines to make under 18 functions a success. These functions can become huge and, consequently, there is a need for a policy to limit the number of people who attend. Perhaps this is addressed under the fire regulations of health and safety legislation.

How is it done there? Unless tickets are sold in advance, which is the case in New South Wales, thousands of young people could turn up at an event but not be able to get in. I have teenage sons and I know how enthusiastic they are and how much they look forward to these events. Accordingly, tickets should be pre-sold for such events so that numbers can be limited and to prevent disappointment for those turning up on the night with no hope of gaining access. There should also be a requirement on those running the events to notify the Garda a week in advance. They can seek Garda advice.

The Garda has a job to police huge events such as this. How can the Garda know about it unless it is told? They should be told about it and it should be in the legislation. If the Minister had allowed a break between Second Stage and Committee Stage we might have been able to do this. I do not know whether it can be done now, today. There is nothing about the type of adult supervision that is required for these events. There are no guidelines and no thought has been put into it. Is adult supervision of any sort required? Can a ten year old or a five year old attend these [1528] events? The Minister is nodding; of course they can.

  Mr. McDowell: What events is the Deputy talking about? He could have a disco for five year olds if he wanted.

  Mr. Stanton: The Minister wants discos for five year olds. That is brilliant. We are talking about an under-18 disco and the Minister says it is all right for five year olds to attend, at night, with no closing time. It is bizarre.

  Mr. McDowell: This is not a nanny state. Is the Deputy in favour of a nanny state?

  Mr. Stanton: The Minister should let me make the point. I am suggesting that perhaps some thought should be given to lower age limits at these events. I am making a serious point and am concerned about this issue.

  Mr. McDowell: How does one prove the age of a 12 year old?

  Mr. Stanton: It is done in Australia where some thought has been put into it, but the Minister obviously has not. He may throw his eyes up to heaven and pooh-pooh everybody because no one knows as well as he does and he will not listen to anybody. That is his problem. He should listen more. There are other matters such as the issue of pass-outs, with people leaving an event and coming back in again. In Australia that is not allowed. It is in the legislation there and they do not do it. The Minister might learn something here. When young people leave those events, they go out, drink outside and come back in again.

  Mr. McDowell: Is the Deputy saying one cannot leave a disco?

  Mr. Stanton: I am not saying one cannot leave it. What the Australians say is one cannot come back in if one leaves the event. It is an issue that has to be discussed. If the Minister was familiar with how these events work on the ground, what happens is that young people may leave a disco, go outside, get drunk, come back in again and cause a problem. This is something that must be headed off at the pass to make it safe for the people who want to enjoy themselves. I am just raising the issue for debate, that is all.

  Mr. McDowell: There is a limit to what the law can do.

  Mr. English: Exactly.

  Mr. Stanton: Perhaps so, but let us debate it and perhaps put down guidelines. Let us see what we can do to help.

  Mr. English: Fine Gael is trying to work with the Minister.

[1529]   Mr. Stanton: We are trying to be helpful. The Minister wants to knock every suggestion we put forward.

  Mr. Durkan: The Minister does not want to be helped.

  Mr. Stanton: No, he knows it all. We will be here again——

  Mr. O’Dowd: We will be back changing it again.

  Mr. Stanton: On the broader issue of alcohol abuse I am concerned that the Youth Work Act still has not come into force. No money has been provided for the development plan. We have a problem in this country with the lack of a youth policy. There is a good national youth work development plan, but no money has been given to it. Last year, I am told by the Minister for Finance, an estimated €12.2 million extra was collected in increased taxation on alcopops. That shows the rate of consumption, which is colossal. The volume consumed fell by 11.5%, which is small enough when one considers the huge rise in the amount of excise duty that was put on. I suggest that some or all of that money should be put into the youth work sector to try to develop clubs and youth activities to help people to take responsibility for their actions and set up citizenship programmes etc. However, that is not happening.

The youth work sector is starved of resources and the Minister for Justice, Equality and Law Reform has then to deal with the problems. Perhaps the Minister will ask the Cabinet to put some of this money into the youth work sector, clubs and organisations across the country, to have youth centres where young people may socialise in a supervised way as well as trained adult youth workers to guide and help them. Young people should be encouraged to take responsibility for themselves. They want to do it and are crying out for it, but the problem is we are not helping them.

A group of young people from my constituency was in the public gallery this morning listening to this debate. They were very interested. I met them afterwards and they had many questions about it. They should be given a voice. Listen to what they have to say and include them. I pay tribute to the no name clubs around the country. Again, they need more help and assistance. I also pay tribute to the Garda diversion programmes, which do great work around the country. As the Minister knows, the diversion programmes target disadvantaged young people, in the main. That is important and essential, but there is an entire spectrum of other young people to be considered, the quiet ones who never get involved in trouble or bother, who also need to have social outlets, and they are not getting them. I am trying to be helpful with these suggestions.

[1530] Perhaps the Minister will look at what has been done in New South Wales and take some of it on board. They have been through the experience and I believe they have some suggestions that are useful. I wish the Minister well with this matter and I hope that the other Bill will come through quickly because much more work needs to be done in this area.

  Mr. Boyle: In looking through the Bill’s explanatory memorandum I was struck by the use of the phrase “It shall not be unlawful”. That in itself describes the mess the Minister has got himself into on this narrow section of a Bill that was much opposed in this House and of which several other sections still have to be remedied. I will bow to the Minister’s knowledge of jurisprudence, but I would have thought that in a free society the whole point of enacting legislation is that anything is legal until it has been explicitly deemed illegal. The Minister has now gone to the further extreme and brought in the concept of something not being unlawful. There has been too much of such activity in various legislation brought before the House.

On the issue of young people having access to alcohol, there is a degree of unanimity in the House that it is unacceptable, causing grave social problems, and that actions are needed to remedy the situation. The legislation proposes a number of actions many of us said would not and could not work. It is no satisfaction to say they are not working. I speak as the father of a 14 year old girl who has been taken to a number of discos in the past year, luckily in situations where bars are not available. However, I do not list the concern at not having access to alcohol among those I have for my teenage daughter. There are plenty of other social concerns to be considered that I raise with her on a regular basis and I will continue to do so until she is a legal adult.

We are missing the point somewhat as regards young people and alcohol. The problems as regards access are occurring on street corners and in laneways and fields. If we had wider legislation to address this, regulating in particular the access of young people to licensed off-licences, maybe the debate would be improved and our time in this Chamber would be better spent. Unfortunately, we are only playing around the edges of a serious problem that will continue to exist and intensify because neither the resources nor the legislative framework has been provided that would allow society to adapt properly to it.

The difficulties involved in amending the main Bill and what I fear might necessitate an amendment in the future have been pointed out already by many speakers. The use of phrases as to whether alcohol or intoxicating liquor is being sold, supplied or consumed would seem to cover all angles. What would happen, however, if in some room or hall where a disco was being held, unopened, unsold, unconsumed alcohol was available in ready supply? It would be highly visible, an unexpected temptation for everyone there. I [1531] know the Minister is trying to close a loophole, but this approach often invites the opening of further loopholes. The problem arises due to the difficulty in legislating in this field.

I have had active involvement in youth work service. For a number of years I was vice-president of the National Youth Council. Last weekend, that body held an important seminar on alcohol and young people and what came out of that seminar was not a call for this Bill but calls for resources, peer education in particular and general societal awareness. Those regular calls have been met with indifference by the Government and a failure to provide adequate resources, which I regret.

2 o’clock

Deputy Stanton mentioned the Youth Work Act and the failure to implement the youth development plan. For many decades I was involved in running youth clubs on a voluntary basis and I see no difference in the approach of State agencies or Departments to this necessary part of our social fabric. It is part of our social infrastructure that can lessen many of the social problems young people experience but it has not received any real support. For Members of this House to debate the Bill without a wider debate on how and when such resources are to be provided is insulting to those voluntary organisations, and the volunteers who work with them, and is ultimately insulting to the young people who are getting whatever degree of service is offered through that framework.

I hope the Minister will take the experience of presenting this legislation to the House back to the Cabinet and that we can have a joined-up Government approach on this issue. I accept that dealing with this issue by way of a small number of sections in an amendment Bill will not solve the overall problem of young people and alcohol. As a society we have a terrible attitude towards the consumption of alcohol but why is the Minister not liaising with the Minister for Health and Children, the Minister for Education and Science and the Ministers of State who have particular responsibility for younger people to produce a co-ordinated approach? That is not happening and it will not happen when this debate concludes.

On the wider issue of young people in pubs after 9 p.m., I wish to relate some of the problems I experienced during the summer, particularly in respect of tourists and their families. I was in a Cork city centre public house at 9.15 p.m. one night when a young French couple came in with their two children who were almost teenagers and immediately the atmosphere was upset by someone wondering how to inform those people that their children could not remain in the pub. They were probably in Cork city for one evening and more than likely experienced the same problem elsewhere. That family was probably from a society in which a more mature attitude is taken to the consumption of alcohol.

[1532] In not addressing that problem in this Bill but promising to address it in a future Bill the Minister has missed an opportunity. Not only is that a glaring example of where the original Bill went wrong, but the whole question of almost criminalising young people for being in a certain place at a certain time, even when they are being supervised by their parents and the family has an attitude towards the mature consumption of alcohol, is wrong. We were wrong in passing the original legislation. If we are talking about changing attitudes to the consumption of alcohol and our awareness of alcohol in society, the last thing we need to do is put people in those situations. We need to address the problem where it exists and as far as young people are concerned not only does it exist in the places I described earlier, increasingly because of changing demographics and social problems, it is happening within family homes. If young people can access alcohol of any type or quantity in those situations, a Bill such as this is almost Swiftian in its proportion. The Minister is bringing forward a Bill that ignores the central problem. It even reads as a piece of satire because, having accessed alcohol in the first instance, young people will drink too much and as a society we will continue to be ambivalent.

That ambivalence was highlighted in recent statements by IBEC, which referred to absenteeism in the workforce increasing because of alcohol consumption while at the same time presenting budget submissions that call for a reduction in excise duties on the alcohol it claims is causing the absenteeism. Those double standards exist in society, within the Government and the House in general. Unfortunately, today’s debate on this legislation will not address those problems.

  Acting Chairman: I must advise the Deputy that I will call the Minister to reply at 2.15 p.m.

  Mr. Durkan: The Minister has seen the light, so to speak, because much concern was expressed about this particular legislation when he brought the previous legislation before the House. It is no harm to review the position now and again to determine the effectiveness of our legislation when it is put into operation. Listening to other speakers it is obvious that we must have a more informed attitude to alcohol consumption. Our culture appears to be at variance with that which prevails in other countries and as Deputy Boyle stated, the workplace and industry generally suffers as a result. Serious social problems arise also from over-indulgence of which, apparently, we have not taken full account.

I was outside the jurisdiction on holiday during the summer within the European Union — it was not Australia because it is not yet in the EU — and I was amazed at the number of families who socialised together. I am talking about large numbers of young people, including very small children, in pubs-restaurants up to 12 midnight and later who were not displaying any unruly [1533] behaviour. There did not appear to be the same prevalence of clubs or disco type premises in that country as here, although I am aware they exist in different areas. However, there was a huge number of families socialising, which we do not see here.

It is deemed to be a bad habit for parents and their children to go into a pub, and children up to a certain age are banned, although I am not sure that is a good idea. More time and effort needs to be put into making families and young people more aware of the consequences of what we have seen in terms of binge drinking in recent years. The availability of extra money is a contributory factor. I am aware there has been a decline in alcohol consumption recently but I cannot understand why other countries appear to be able to deal with this problem more adequately than we do here. Incidentally, as far as I could see there was a greater adherence to law and order in the country I visited than is the case here. Alcohol may be a contributory factor but the number of mindless acts of violence occurring here on a daily basis appear to be fuelled by alcohol, drugs or both. There is no reason for them other than a reaction to an event at the time. We saw that in this city over the past weekend. We are beginning to get a bad reputation because of those incidents.

There is an urgent need for more visibility on the part of the gardaí. I realise the Minister gets very sensitive when greater visibility on the part of the gardaí is mentioned but it is necessary and there is little point saying we are spending more money in that area. Whatever is needed must be done urgently because the longer this continues the more our reputation will suffer, the greater the degree of contempt there will be for the law and the more people will take the law into their own hands, acting or reacting in a particular way. There were ample signs of continuous police patrols throughout the resort, day and night. Nearby, much to my annoyance, there was a disco that went on until 3 a.m. but there was no hint of bad behaviour and crowds of people went in and out of it. Banning children below a certain age from pubs is not necessarily effective or educational because the rest of the family may well be there. This Bill is a response to the impossibility of holding alcohol-free discos in certain places.

How does the Minister intend to deal with the approximately 20 Bills lined up for Government agreement? There is speculation in some quarters about the lifespan of this Administration. I was glad to note that he was most reassuring about this which is not always his wont, not that the future of the Government is in his control. It would be a good idea to bring forward urgently the various Bills likely to affect the issues of law and order, and alcohol and drug abuse. In doing this, however, the Minister should not hold a press conference beforehand at which he informs the House that he is bringing the Bill in the next morning. We like to have time to peruse these [1534] matters and we are entitled to that. It might give rise to impatience on the part of the Government and the Minister but it does not help the end product if, for instance, we read in the morning newspapers of a press conference or a leak to some inspired journalist about the Minister’s plans. The Minister’s innermost thoughts are aired on Morning Ireland after such a discussion. That is not the way he should go about his business. The Opposition will provide ample co-operation and constructive debate provided it is given the right degree of consultation and recognition for the role it must play. It would be a good idea to look at the Bills listed which are relegated to 2005 or thereafter when the timescale becomes vague.

I have no objection to the amending legislation before us. It is an obvious clarification and a necessary amendment. I do not understand why this was not identified in the first place. The Attorney General and nobody else is adviser to the Government on these matters. The DPP has a different role and set of guidelines. One can identify pitfalls and if one cannot consult directly with the various agencies that must be consulted in the drafting of legislation and given this, it is surely possible in this enlightened age to have some idea of their thinking or interpretation of a Bill before it is enacted. That would save all of us time and trouble and spare the Minister the stress and trauma associated with rushed legislation, although its need was obvious to many people inside and outside the House for some time.

  Mr. McDowell: I am very grateful to the Deputies for the views they have expressed. I agree it is undesirable to try to guillotine a Bill through the House, especially at short notice and I would not have done it but for the urgency of the situation. I hoped that I could deal with all of this in the Bill which is before the Cabinet, namely, the consolidating and codifying legislation to cover this area.

In 2003 the House decided to make necessary changes to legislation to prevent 16 and 17 year olds staying in bars all evening. The only way gardaí could stop them was by proving that a particular drink belonged to a particular person and that it contained alcohol in circumstances where it was not possible for them to do so. The District Court had thrown out some cases in which, apparently, there was drink in front of youngsters but the garda could not prove it was alcoholic. That was the situation I inherited.

Even more extraordinarily it was not possible for a garda in plain clothes to enter a pub where he or she suspected that underage people were being regularly served because they had to be in uniform to enter a licensed premises. Any misbehaviour stopped as soon as a garda came into the premises and there was no way to patrol the legislation.

This was a matter of life and death. Young people were losing their lives because they were [1535] being served in licensed premises. I accept that they can get access to drink elsewhere but in one case a woman travelled from Connemara to tell me about her daughter’s death in circumstances where she had been served alcohol in a licensed premises in her locality. She pleaded with me to do something about it. I said I would and told her about our intentions for the legislation that came before the House in 2003.

Neither I nor anyone else ever intended it to be the case that in the local GAA club if there happened to be a function room with a shutter down at which on occasion alcohol was served, the rest of that hall could never be used for an event children would attend after 9 p.m. However, the Office of the Director of Public Prosecutions instructed some members of the Garda Síochána that the DPP interpreted the legislation in that way. If one held a disco or dance in the local GAA club and there was a bar in the corner with the shutters down, everyone was committing an offence. When I heard that theory I asked my Department officials could we have got it wrong. They consulted very eminent counsel and were told we did not get it wrong. That was not the law and the definition of a bar in the 1988 Act does not require one to come to that view. Approximately a year ago I said that was the advice I got and the basis on which I proceeded. Had I thought then that the advice was wrong I would have brought a Bill of this kind in less rushed circumstances to cure the defect but that was not the case. I was told I was on the right track.

It was only in the summer that, in the context of the junior certificate discos, the view that had previously been expressed to members of the Garda Síochána was reinforced and they were told to act on it. I discovered that gardaí were going to venues — GAA, rugby, soccer, youth and community clubs — and stating that discos were not allowed there if there was a bar in the relevant room, even if the shutters were rolled down. I spoke to the Garda Commissioner, having first obtained counsel’s advice, and stated that we should seek the advice of the Attorney General as to whether that interpretation was correct. The matter was referred to the Attorney General who advised that, in the circumstances, the definition of what is a bar did not make it unlawful to hold such discos.

I was of the opinion that the position was now clear and I made a statement on radio. Had I thought, however, that there was a serious doubt about the issue, I would have immediately moved to regularise the position. What is at the bottom of this is a trenchant and radical proposition that it is, at present, unlawful for a priest or policeman, of whom there are many involved in doing so, to organise a disco in the function room of a local GAA club if there is a bar in that room, even if the shutters attached thereto are rolled down. I would have acted to prevent that from being the law if I thought it was the case.

[1536]   Mr. J. O’Keeffe: Matters came very close to home when it happened at Old Wesley.

  Mr. McDowell: I would like Members to pay attention to the next proposition. I was recently informed, when my major consolidation Bill was before the Cabinet, that it was intended to bring prosecutions in all such cases in the future. I then attended the no name club launch in Croke Park and spoke to Eddie Kehir and various others who are trying to do something for the community and who were about to be prosecuted for committing criminal offences if they proceeded to hold events in clubs of the kind to which I refer.

Having learned that this was the intention, all I could do was come before the House in a hurry and state that we must change the law to stop no name clubs from being prosecuted. I am determined to stop prosecutions commencing in cases where GAA clubs allow children to use the main halls of their clubs, even for judo practice, because there is a bar, with its shutters up, situated therein. This is the situation in which I find myself and I am acting reasonably, not arrogantly, in stating that we must proceed quickly to put a stop to such cases arising.

I can only rely on what I am told by barristers and the Attorney General. I cannot direct the Director of Public Prosecutions to take a different view. For its part, the District Court has heard two, possibly three, prosecutions based on the view taken by the Director of Public Prosecutions. In each case, it has been rejected. I could state that we should just leave this matter to the courts. Is it fair, however, to say to the proponents of no name clubs that they should take their chance in court. Is that a fair approach on my part? I found myself obliged to legislate in this manner and that is what I have done.

I apologise to the House for introducing the legislation in a hurry. However, if prosecutions are being directed against people who I consider to be doing nothing wrong and who are doing valuable work in the community, and if the trustees of every GAA club in the country which have bars that have roll-down shutters will commit criminal offences if they allow children to practice Irish dancing or judo on their premises after 9 p.m., it is my opinion that I must take action. I would prefer if matters were different and if there were a consultative process in place, under which I could be contacted and informed that a particular course of action was going to be taken and asked if I would like a month in which to get my legislative act together. However, I was not given such an opportunity and I was obliged to respond to a direction given to the Garda Síochána by the person who, under our constitutional law, is independent in the matter, and deal with the situation that arose as a result.

There is no time to lose. I cannot have droves of club trustees and people of that nature being brought before the courts and accused of committing criminal offences, even if I disagree with the DPP’s interpretation of the law. There is a canon [1537] of construction in criminal law that if two views of the law are reasonably open, the one consistent with innocence must always be chosen. If there is, therefore, a doubt as to the meaning of the law, the view more consistent with the innocence of the accused must be taken by a court. However, that is a matter for the courts. I cannot operate in that way and I was obliged to respond to the situation with which I was faced.

I have, therefore, brought before the House a simple Bill, the purpose of which is to provide a legislative underpinning for what is the de facto practice at present, namely, that children can go on to a club premises after 9 p.m. and engage in judo training, even if there is a bar in the same room with its shutters rolled down. I am acting reasonably and what I am proposing to the House is reasonable. I have a great deal of regret about the fact that I am in the position of being obliged to do so with haste. However, that is the nature of the situation in which I find myself.

Deputy Costello inquired about the terms of the Bill. As he stated, section 1(1) to (4) are prospective in nature and it is stated that under their provisions “it shall not be unlawful” for various things to happen. The phrase “it shall not be unlawful” is preferable to that of “it shall be lawful” because there is a difference between the two concepts. If one says that it is lawful for a child to be in a place in certain circumstances, it means that he or she has a right to be there. If one says that it is not unlawful, it means that it is not a breach of the criminal law for the child to be present but that he or she may not, for various other reasons, have a right to be on the premises. These four subsections are intended to afford two persons who are covered by the particular circumstances described in each with a legal underpinning that the activities in question are regarded as not unlawful.

The Deputy also inquired about section 1(5) and asked if it applies to existing proceedings. My answer is simple. Subsection (5) is prospective in nature and it is stated therein that after the Bill becomes law “It shall be a defence ... ” However, if there were a constitutional reason that this could not apply to existing proceedings — some people believe that to be the case — it must be given a constitutional construction and not so applied. My personal view is that there is nothing wrong with the Oireachtas furnishing a defence, even to a defendant in an existing proceeding. However, other people take a different view. I know for a certainty that if there was any constitutional reason that it would have to be interpreted to apply only to future offences, it would be so interpreted by the courts because the courts always give these provisions a constitutional interpretation.

Section 1(6) states that the mere fact that I am doing all these things will not rob anybody who is already being prosecuted of any defence that they have or of the right to make any submissions they wish to make.

[1538] I have seen all the analysis on this issue that has been furnished to me and I have read all the opinions on which people seem to be acting in respect of this matter. I have come to the conclusion that the view taken by the Attorney General is preferable to that taken by the Director of Public Prosecutions. That is only my opinion, however, and, in the final analysis, only the courts can make authoritative decisions on these matters. No Minister gives an authoritative opinion. A Minister is required to be guided by the Attorney General as to his views on the meaning of a statute.

Some Deputies suggested it was unfortunate to have two views on a matter of this kind. As I said at the outset of the debate, the licensing law deals with shared competences. In so far as it is a civil code the Attorney General is the competent adviser of all organs of the State on it. In so far as criminal prosecutions are brought under the licensing code the Director of Public Prosecutions is the independent decider of those matters. No easy way exists to reconcile cases where the Attorney General and the Director of Public Prosecutions differ in their views as to what any particular section means. Those occasions have been extremely rare. In such circumstances all we, as legislators, can do is clarify the law as we see best and save decent people who are doing decent work, which is entirely sensible, from being the subject of legal experimentation one way or the other.

Question put and agreed to.