Seanad Éireann - Volume 190 - 10 July, 2008

Intoxicating Liquor Bill 2008: Committee Stage.

SECTION 1.

  Senator Alex White: I move amendment No. 1:

In page 3, lines 18 to 21, to delete subsection (3) and substitute the following:

“(3) The Courts of Justice Acts 1924 to 1961, the Courts (Supplemental Provisions) Acts 1961 to 2007 and section 7(a), to the extent that it amends the Courts of Justice Act 1924, may be cited together as the Courts Acts 1924 to 2008 and shall be construed together as one.”.

The reason for this proposed amendment is that there appears to be an inconsistency in the collective citations of the Courts of Justice Acts. There is one citation for the Acts dating from 1924 to 1961 and a second citation for the Acts from 1961 onwards, even though the Courts of Justice Act 1961 extensively amended the Courts of Justice Act 1924. The amendment proposes to bring some order to this chaos. “Chaos” may be too strong a word to use in the circumstances, but there seems to be an inconsistency bordering on the chaotic. The suggestion is to use a single composite citation, namely, “Courts of Justice Acts 1924 to 2008” from hereon.

[941]  Senator David Norris: This is the first amendment. Will the Minister of State, Deputy Conor Lenihan, agree this process is completely chaotic? Will he state clearly, for the record of the House, whether the Government is in a position to accept any amendment whatever, due to the dissolution of the Dáil? We are engaged in a farce. There is at least one amendment on the Government side in the name of a leading member of the Minister of State’s party and the leader of the Green Party in the House — the man who negotiated the formation of the coalition Government. Will the Minister of State candidly state if he is prepared to accept an amendment? It seems clear to me that he cannot. The degree of shambles in which we are involved is evident from the fact that we have just been issued with a list referring to amendments Nos. 2a and 12a which we do not yet have. Does the Minister of State believe this is any way to conduct business? We have been given groupings of amendments that we have not seen, which I find absurd.

  Senator Ivana Bacik: I echo the remarks of Senator Norris. Regarding the amendment groupings just distributed, I have proposed amendment No. 9. I have been told it is proposed to be grouped with amendment No. 8 and amendment No. 8a, which I have not yet received.

  Deputy Conor Lenihan: These are matters for the Seanad and how it organises its business, not the Government.

  Senator Alex White: Is the Minister of State in order to interrupt, as he has not been called?

  Senator Ivana Bacik: Along with several colleagues, I have previously raised the matter of the process by which this Bill is brought before the House, which is not only a matter for the Seanad but for the process as a whole. The Government is seeking to rush the Bill through the House on the last sitting day before the recess. The Dáil will not be in a position to deal with the Bill if it is forwarded. I question how we can deal with this and how the Minister of State can take or discuss amendments on the Bill in this chaotic environment.

12 o’clock

  Senator Eugene Regan: I agree with the previous comments. The Minister of State pretends to lend an ear to what is said in this House, but has no intention of accepting any amendments. The organisation of business in the House has come as a diktat from Government and we know this from the Leader of the House. He has no room to manoeuvre in terms of the timing. With the dissolution of the Dáil it is clear there is no intention on the part of the Minister of State or the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, to accept amendments. This unwillingness to accept amendments is not because they may lack merit. It is simply a blanket policy to reject all amendments and it ties in with the agenda of the Government to rush this legislation.

  Senator Feargal Quinn: My question is exactly the same. Is it the Minister of State’s intention or is he willing to accept any amendment? I assume that if the Minister of State accepts an amendment — I know him well enough to realise his intention is to write good legislation — it will not come into operation until it goes back to the Dáil, which may be in September or October. That is quite valid and I understand why that should happen. Is the Minister of State willing to accept any amendment?

  Senator Denis O’Donovan: From the initial discussions on this debate, there have been a number of meetings. I wish to bring some balance to the matter. I understand the frustration from the opposite side and I proposed yesterday that I would have no problem in the House sitting next week.

[942]  Senator Alex White: That is not the point.

  Senator Denis O’Donovan: That is a matter for myself. On the principle of amendments, we must deal with every one on merit and it will ultimately be a question for the Minister of State. In the process over the past several weeks, the Minister has accepted several amendments, one example being the proposal that the 46 or 47 early opening houses throughout the country, which serve a purpose, were to be either closed down or brought back to regular hours. This has been changed and there are a number of instances where the Minister has listened, not alone to lobby groups, but to different views put forward.

We must not lose sight of the fact that a further Bill is being proposed for the autumn, which can deal with many other issues. We voted on this already this morning. Senator Alex White has moved the first amendment and it is not for me to second it. We should debate each amendment on its merit rather than keep going around in circles on whether the issue as a whole will be sorted out today.

  Deputy Conor Lenihan: Naturally, I will observe the parliamentary and political proprieties. I am here to listen——

  Senator Alex White: The Minister of State should stand up for them.

  Deputy Conor Lenihan: ——and be persuaded that the amendments are meritorious. If they are, I will accept those amendments. There is a process to be observed called democracy. We must go through these amendments seriatim and decide if they are appropriate. I will give the replies as the amendments arise.

Some of the amendments are extremely good and their substance will be incorporated in future legislation if not in this particular legislation. Some of the items raised by way of amendment by particular Senators are of particular merit. In substance, they have already been incorporated in the approach being taken by the Government. I do not see us being at odds with each other to the extent being made out.

I am happy to proceed in the normal way with business and ensure we go through this item by item, giving the level of scrutiny deserved.

  Senator Feargal Quinn: I am very pleased to hear the Minister of State say he is willing to accept amendments. He went even further and I was delighted to hear him say that some of these are very worthy amendments and worth accepting. The only trouble is if these are not accepted today, they do not become law. Something else will become law until later in the year. We will have six months of bad law.

If the Minister of State has indicated some of these amendments are very worthy of consideration and acceptance but does not accept them, he is introducing bad legislation which we must put up with for at least four or five months. I am sure the Minister of State’s intention is not to do that.

  Deputy Conor Lenihan: Just because the Senator has a good idea from time to time does not mean I am enacting bad law. The Government has not framed any particular amendments to this Bill and as Senator O’Donovan stated earlier, some fairly significant concessions from the Government side have already been made with regard to two issues. These are the matters of early houses and separation of alcohol products, which has by agreement been parked until we can derive a code of practice with the industry on the issue.

The underlying thrust of this Bill is very significant. I do not see how Senators can wish to delay legislation like this, which is specifically designed to curtail the availability of alcohol, [943]and by extension to control and limit the kind of public damage to individuals and property done because of late night and binge drinking, etc. I cannot believe Senators would want to delay legislation which has at its spearpoint proposals to counter the hooliganism associated with late-night drinking. It will make it easier to curtail this phenomenon, which is making a misery of the lives of a great many people. I do not see the argument for delay.

  An Leas-Chathaoirleach: I remind Senator Norris we are speaking on amendment No. 1.

  Senator David Norris: Since I raised this matter it has been taken up. All my colleagues, including those on the Government side, have acknowledged that there is a significant problem. There is no intention to delay this matter and we concur on this side with Senator O’Donovan if the Seanad must meet next week. The Dáil will still be in recess so it will not be of much use in solving the problem.

I say “well done” to the Minister of State on an admirable fudge. He did not say he would accept any amendments and we all know bloody well that he will not. The Minister of State spoke of what happened in the Dáil but we know what happened there. A guillotine was employed and two thirds of the amendments put down by the Opposition in the other House were not discussed at all. That is what has happened with this Bill.

We are not trying to delay the legislation at all. We are absolutely at one with the Minister of State in that the public order problem must be addressed. What the Minister of State has essentially indicated, if he reads the subtext, is that there may be some ideas in the amendments which will be incorporated in the main Bill in the autumn. I would be very surprised if the Minister of State accepted any amendment today.

I am prepared, as the poet Wordsworth wrote, to be surprised by joy. I do not anticipate it but I will not hold up the House any longer. We should get down to the substance of the amendment because we have established where we are. It is a poor day for the respect for the constitutional position of the Seanad in that this should happen. I do not personally blame the Minister of State but I attach blame to the Government in the way it has treated this legislation.

  Senator Eugene Regan: On a point of order, I believe it is customary when anybody is addressing this House that he or she would stand. I do not know if the Minister of State intends to remain seated for the entire debate.

  Senator David Norris: I could not care less about that. Let us not be fussy. The Senator will have the Minister of State wearing a wig next.

  Senator Eugene Regan: I addressed the comment to the Chair.

  Deputy Conor Lenihan: I am at the guidance of the Leas-Chathaoirleach in this matter. As I understand it, with committee meetings dealing with Committee Stage of legislation in committee rooms as distinct from the full Chamber, Ministers remain seated. I am open to persuasion from the Leas-Chathaoirleach as to whether I should stand or sit.

  Senator David Norris: We are interested in the Minister of State’s ideas rather than his posture.

  Senator Eugene Regan: I defer to the Chair.

  An Leas-Chathaoirleach: It is usual for Ministers to stand.

  Senator Eugene Regan: I reiterate the point that to suggest many amendments have been accepted in the Dáil has no relevance to the debate in this House. Senators are putting down [944]amendments on the substance and merits of the Bill and that is what is at issue, not any amendments which have been accepted in the Lower House. As Senator Norris has stated, we know only a couple of the amendments were even debated before the guillotine was put down. The Minister of State does not intend to move on this.

  Senator Alex White: I cannot take the matter much further than my colleagues. I do not intend to rise to debate or over-react to some statements in the same way as some colleagues, usually from the opposite side. I take exception to any suggestion on the part of the Minister of State or anybody on his behalf, when he gave the long list of problems and social ills attempted to be addressed in this Bill, that people on this side of the House are in some way less concerned or interested in addressing those issues. He rather rhetorically threw into his defence of the position a few minutes ago that people would surely want to deal with issues such as binge drinking and fall-out from the abuse of alcohol, as if there was some suggestion that people over here were less interested in doing so.

I take considerable exception to that suggestion. Anything said by Senators Quinn, Norris, Bacik, Regan or myself has been precisely directed in that cause — an attempt to ensure this legislation is the best possible. We are not attempting to delay it for the sake of it.

Despite Senator Quinn’s benign interpretation of what the Minister of State said in respect of listening to amendments, it is perfectly clear the Government has not the slightest intention of accepting any amendments before the House. It is a sad state of affairs that Members of an important constitutional body such as this House know that irrespective of what they say or do before this debate concludes, either today or, at Senator O’Donovan’s suggestion, next week, it will not make a difference.

  Senator Ivana Bacik: Like Senator Alex White, I will respond to the Minister of State’s point that Senators on this side are seeking to delay the Bill and do not have concerns about the problems associated with alcohol abuse. As many of us stated during the Second Stage debate yesterday, while we are very concerned about these problems, we do not believe the Bill is an effective means of tackling them. On the contrary, it is counter-productive legislation and restricting the hours in which people are entitled to drink in pubs and clubs will not address the problem of binge drinking or the harm associated with alcohol abuse. Such restrictions will affect where and how alcohol is consumed, rather than how much of it is consumed or what damage it causes.

Opposition Senators do not wish to under estimate or trivialise the problems associated with alcohol abuse. The amendments I and other Senators have tabled propose alternative means of tackling the problem and more time is needed to debate them. It is unfortunate, as other speakers have noted, that Senators have been left in the farcical position of proposing good, worthwhile alternatives which the Minister of State appears to be unable to accept.

  Senator Feargal Quinn: I was rather upset by the Minister of State’s suggestion that our proposals to improve the Bill would not achieve the objectives set out in the Bill. I and my colleagues want to have good legislation and we seek to improve the Bill. The Minister of State suggested the purpose of our amendments is to delay or stop the Bill. That is not our intention and I ask him to rephrase his remarks insinuating that those of us who are trying to improve the Bill are seeking to prevent its objective being achieved.

  Deputy Conor Lenihan: I will first address Senator Alex White’s amendment No. 1. I understand the purpose of the amendment is to create a new collective citation for the Courts Acts, which would incorporate the Courts of Justice Acts and the Courts (Supplementary Provisions) [945]Acts. Irrespective of the merits of having a new collective citation for all courts legislation on the lines proposed in the amendment, the Parliamentary Counsel has advised that this is not the legislation in which to make such a change. However, the Department of Justice, Equality and Law Reform has undertaken a joint project with the Law Reform Commission to codify the Courts Acts and I am sure this is one of the issues that will be addressed in that project.

While the amendments, including amendment No. 1, contain meritorious ideas, the Parliamentary Counsel has advised that it would not be appropriate to take a collective citation approach to the alcohol Acts in this legislation. However, the Department is engaged with the Law Reform Commission to do precisely what the Senator proposes by way of amendment. The Parliamentary Counsel differs with the Senator in taking the position that the Bill is not the appropriate place to make such an amendment.

While the spirit with which Senator Alex White has applied himself to the detail of the law in this area and the thrust of the amendment are absolutely correct, this is not the appropriate legislation for such an amendment. This is what I meant when I indicated that some of the amendments are fine and have a noble purpose. The Senator’s amendment is a clever approach to addressing a legal matter, albeit not in the right place. This does not diminish his motivation or the purpose of the amendment.

On the broader issues raised by other Senators, one must distinguish between fine amendments such as that under discussion and other amendments that are clearly motivated by an industry that operates late at night and seeks to have the legislation changed. This industry has lobbied around the House in the past week or so and some Members may have been persuaded to table amendments in this House or the other House. The Government will legislate for the industry in the autumn in a comprehensive Bill.

The Government is not in agreement with the industry or specific amendments to be discussed later. While I do not wish to pre-empt those discussions, the Government does not wish to have later opening hours. I am rather surprised by Senator Bacik’s assertion that restricting the hours of availability of alcohol has no effect on consumption given that definitive international evidence is available which shows consumption is affected by restrictions on the sale, supply, advertising and sponsorship of alcohol.

We have a unique opportunity to address this issue. It has been my experience over the years——

  An Leas-Chathaoirleach: I ask the Minister of State to confine his remarks to the amendment before us as he is pre-empting the debate on other amendments.

  Deputy Conor Lenihan: I will do so. Every time a Government has tried to address this issue and challenge vested interests in the alcohol industry, efforts have been made to thwart it. We have reached a key juncture and if we do not introduce legislation, we will not get to grips with our national alcohol problem. Speedy legislation is required to put down a definite marker. A range of vested interests, including groceries, supermarkets, retail outlets, convenience stores and alcohol producers, would prefer a liberal approach to alcohol consumption. Unfortunately, Ireland has a serious problem with alcohol and legislation is required to restrict opening hours. The bottom line is that we have tried everything else, including having a persuasive conversation with members of the public on the matter, but it has not worked. It is, therefore, time to legislate quickly.

  Senator Alex White: At this early stage, the Minister of State has extended the debate into other issues, despite being urged by the Leas-Chathaoirleach not to do so. In respect of amendment No. 1, I anticipate that the Minister of State will inform the House that while many of [946]the amendments are good, the legislation is not the appropriate place in which to deal with them. I will have some difficulty with that response as business proceeds.

In respect of the proposal in amendment No. 1, the Minister of State’s response that the legislation may not be the appropriate place to deal with the issue in question has some merit and I am prepared to accept it. While I am not in a position to set conditions for the Minister of State, I ask him to indicate that the issue will be, as opposed to may be, addressed in the codification exercise to which he referred. If he gives such an undertaking, I will be satisfied that subsequent legislation is the appropriate place in which to address the issue and will not pursue the matter on the basis that progress will be made.

The Minister of State should not take a “holier than thou” position on lobby groups or vested interests as he is a prominent member of a party which is familiar and comfortable with dealing with such groups and interests in all types of areas. He should not tell Opposition Senators that we should not talk to or listen to lobby groups. They are as entitled as everyone else to raise issues with us. It is a little rich to hear a “holier than thou” attitude from the Government side.

  Senator Ivana Bacik: While I do not wish to prolong the debate on the amendment, in the interests of fairness I must respond to the Minister of State’s comments which misinterpreted what I said. I did not say regulations on the advertising, sale and supply of alcohol do not have an impact on consumption. Clearly, such regulations have an impact and I have argued in the House that the Government should restrict the sale of premiership football jerseys in children’s sizes which prominently bear logos of alcohol companies. I hope to raise this issue again with the Department.

My specific point was that restricting opening hours, for example, abolishing holy hour, does not of itself lead to the problems we associate with binge drinking and alcohol consumption. There is no evidence that the abolition of holy hour has led to people drinking more during that period. I do not believe that allowing clubs and bars to extend their opening hours beyond 2.30 a.m., or 1 a.m. on Sunday nights, would lead to people drinking greater quantities of alcohol. The evidence from countries where opening hours are more liberalised is not that people drink more or binge drink. Our culture is specifically binge drinking in nature, largely because we are used to having severe controls imposed.

  An Leas-Chathaoirleach: The Senator is straying from the content of the amendment.

  Senator Ivana Bacik: I am replying to comments made by the Minister of State, who suggested that people who tabled amendments seeking longer opening times had somehow done so at the behest of lobbyists or vested interests. I take exception to that assertion. The one vested interest group to which the Minister of State did not refer is that which comprises consumers. I have attended nightclubs and bars — and I hope to continue to do so — and, like most Members, I was lobbied by the nightclub industry. We were also lobbied by those who attend nightclubs and late bars, which is fair enough.

I would have tabled my amendments regardless of whether I had been lobbied. I have a long record of seeking action in respect of this matter. I wrote in Gay Community News on the need to liberalise opening hours. In the past I made a submission, in a personal capacity, to the Commission on Alcohol requesting that opening hours be liberalised. I also supported a proposal put forward by a previous Minister for Justice, Equality and Law Reform to the effect that café bar licences should be introduced in this country.

[947]It is unfair to state that people are suggesting that opening hours be extended just because the Irish Nightclub Industry Association or some other lobby group made a recommendation in this regard. There is an important principle at stake — namely, that the laws should not be as restrictive as they are at present — in which many of us believe.

  Senator Eugene Regan: The current licensing system came into place on foot of legislation introduced by the Government. The Opposition cannot be blamed for the current position. To introduce crude and rushed legislation in an attempt to deal with some perceived ill such as, for example, public order offences is not the way to proceed. I strongly object to the Minister of State’s suggestion that all the Opposition amendments were tabled at the behest of a specific lobby group. Members have tabled a range of different amendments which relate to the concerns of the people who will be affected by the legislation. I ask the Minister of State to withdraw the remark he made.

  Deputy Conor Lenihan: I will adhere to the Leas-Chathaoirleach’s instruction to comment only on the amendment tabled by Senator Alex White. I assure the Senator that the matter to which he refers is being dealt with under the joint codification project in which the Department is engaged with the Law Reform Commission. When that project is complete, there will be a unified corpus of law relating to this area. I welcome the Senator’s indication that he would withdraw the amendment if I provided an assurance in respect of this matter.

Amendment, by leave, withdrawn.

  Senator Feargal Quinn: I move amendment No. 2:

In page 3, subsection (5), line 29, after “provisions” to insert the following:

“but should not commence until a Regulatory Impact Analysis has been completed and published”.

This simple amendment is worthy of consideration. A provision such as that contained in the amendment should be included in practically every item of legislation and it was agreed in the past that this would be done. We should not introduce new laws without having some idea as to the costs to which they will give rise. Unless there is an extremely urgent need to pass legislation, I am of the view that each Bill should be the subject of a regulatory impact analysis before it is commenced.

In this instance, it is clear there is a need to carry out such an analysis. The Bill is short but it contains a number of extremely pertinent provisions. For example, under section 9 a new subsection (1A) is to be inserted into section 3, as amended by section 4 of the Act of 2000, of the 1927 Act. This new subsection states:

[W]here non-licensed business is carried on in a premises to which an off-licence is attached, the holder of the licence shall ensure that ... the exposure for sale and the sale of intoxicating liquor is exclusively confined to a part of the licensed premises ... which is structurally separate from the remainder of the premises by means of a wall or similar barrier ...

A number of retailers are extremely concerned regarding the costs to which this provision may give rise. They approached the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, who agreed with the points they raised and indicated that it is not his intention to commence this part of the Bill if those making the case to him behaved and did what they were promising to do, namely, put in place not a wall but some form of separation arrangement. [948] The Minister is to be congratulated on listening to their concerns and deciding not to commence this provision.

The amendment is worded in a particular way. That is because, in the future, if a Minister decides to commence this provision, the cost to the supermarkets, stores, etc., that will be affected will be something of the order of €200 million. That is a major sum of money and responsibility for this matter should not be placed in the hands of a Minister who might, at the stroke of a pen, commence the provision. If the provision is not commenced, there will be no need for the €200 million to which I refer to be spent. In general terms, the spending of this money would not have a positive impact on Irish industry because that which would be required would have to be imported from elsewhere.

There may be other provisions in the Bill which may give rise to costs of this nature and that is why a regulatory impact analysis should be carried out. Regardless of this, however, such an analysis is necessary in respect of the provision to which I refer. While the Minister for Justice, Equality and Law Reform stated that he will not commence this provision if the legislation is passed, he would still have the right to commence it. The amendment in my name suggests that it “should not commence until a Regulatory Impact Analysis has been completed and published”.

This is a worthy amendment and it is one which the Minister of State could accept because it would be easy to carry out a regulatory impact analysis. The latter would not delay the implementation of the Bill, it would only delay the commencement of the provision in question. I urge the Minister of State to consider accepting the amendment.

  Senator Eugene Regan: I support the amendment, the proposition relating to which is self-evident. A regulatory impact analysis should have been carried out before the Bill was initiated. As Senator Quinn stated, this matter can be dealt with because the Minister will be in a position, under section 1(5), to decide when particular provisions of the Bill should come into force. I received representations from many supermarkets, discount stores and retail outlets in respect of the cost to which the measures contained in the Bill could give rise. The Minister of State should respond positively to the proposal put forward in this amendment.

  Deputy Conor Lenihan: I acknowledge Senator Quinn’s renowned expertise in the area of retailing. It is important to understand what the Minister for Justice, Equality and Law Reform said in respect of this section. He clearly stated that he will not be commencing this aspect of the separation in respect of mixed trading environments where alcohol, food items and other products are sold together if the vested interests involved adopt a code of practice in respect of the sale of alcohol within their stores. Those involved have been charged with developing a code of practice that would have the same effect as the provision contained in the Bill. The Minister clearly indicated he is linking the two.

The Minister must retain the sanction outlined in the Bill. I do not anticipate it will be used. The vested interests — in this instance, small retailers — most at risk from the commencement of this provision are attempting, willingly and in good faith, to see if the import of the section can be reflected in the code of practice they have been charged with drawing up. Clearly, the Minister must have the reserved power to commence this provision should the sector show bad faith or seek to string out the discussion about a code of practice but I do not see that as a possibility. The Minister and the vested interests have shown good faith. I agree with the Senator, to the extent that an imposition of a cost of €200 million on small retailers whose profit margins are narrowing by the day would be unfair without seeking to proceed by way of a code.

[949]Unfortunately, I cannot accept the amendment but the Government is fully committed to implementation of the regulation principles set out in the White Paper, Regulating Better, which makes it clear that regulatory impact assessment is an aid to decision-making, not a substitute for it. Neither should it become an obstacle to reform, especially where implementation of reforms is considered urgent by an advisory group responding to the terms of reference given to it by the Government. The report of the advisory group was generally concerned with the increased availability and visibility of alcohol in retail outlets. The advisory group indicated that it was guided by better regulation principles in addressing its terms of reference and called for submissions from interested bodies. Almost 200 were received. It consulted widely with trade and other relevant interests. In the interests of transparency, chapter 2 of the report sets out the data for alcohol consumption, public health and public order issues which guided the advisory group in formulating its recommendations for reform.

I have concerns about the constitutionality of the amendment which Senator Quinn tabled in good faith. I see his purpose but there are issues around its constitutionality. To make entry into force of legislation duly enacted by the Oireachtas subject to a subsequent economic analysis of its impact would undoubtedly raise constitutional issues about the separation of powers under the Constitution. To a certain extent, it would diminish the powers of the House because it would pass a Bill but leave it to another body, economic or otherwise, to analyse and make recommendations for change.

I reassure Senator Quinn, given his expertise in retailing and his contribution to the country during the years, that the intention is to ensure the section will not be commenced because we expect the sector, through the retail organisations which represent it, to come up with the answer by way of a voluntary code of practice which will apply across stores without imposing an extra cost on retailers who are struggling with issues of profitability and physical space. Most reasonable people would accept that it would be very hard to impose a commencement order on small retailers who may have distinct issues or problems with the square footage available in-store.

  Senator Feargal Quinn: I accept what the Minister of State said but it is bad law. It is bad to pass legislation without assessing the impact it will have, including its economic impact. A regulatory impact analysis should be undertaken in respect of everything we do. It would not take much time and would be very simple. No law should be passed with knowing what its effect will be.

This legislation has been rushed. The alcohol advisory group set up under the chairmanship of Mr. Gordon Holmes has, as the Minister of State said, done a lot of work. It was established in January and told to report by March. Many representations were made to it but the process was rushed. The Government looked at the report sometime in March and then introduced the Bill in May without attention being given to it. The reason we have had so many calls from various vested interests is they did not have a chance to express their points of view beforehand and it is now far too late for them to do so. We should consider this matter much more seriously. Legislation should not be passed without having some idea of what its impact will be. In this case, the Minister has not analysed the cost, including the economic cost. The Minister of State should accept the amendment. I hope that between now and Report Stage he will give it serious consideration.

  Senator Alex White: There is a clear logic to what Senator Quinn said and the basis of his proposal. He is left in a position where the only way he can introduce it and have it included in the Bill is to make commencement of the legislation contingent on the making of a regulatory analysis about which he spoke. I take what the Minister of State said in querying the constitutionality of such a proposal, that the passing into law of a measure would be made contingent [950]on something else happening. There is probably some merit to that argument but the issue of substance Senator Quinn raised is that all such legislation should be made subject to a regulatory analysis to ensure best practice. He is absolutely right to look for this. However, as he said, he is placed in a position where the only way he can introduce this meritorious proposal, given that the legislation has been so rushed, is to look at the commencement provisions and link his proposal to that mechanism. It would have been preferable if it could have been done in another way but there was no time to do so. I fall back on the logic of Senator Quinn’s proposal which is unanswerable.

There is another side to the argument in section 8 or section 9 related to structural separation. There is a clear commercial interest and problem which has been discussed with me and must be addressed. There is also the wider public issue at which we need to look. Many of us have made the point in the House that when one goes into a shop to buy a newspaper, one trips over alcohol. That issue needs to be addressed. However, sticking to this proposal, in the explanatory memoranda to all legislation we are told a scan has been done to assess the cost, if any, to the Exchequer. That is a standard statement in all explanatory memoranda. In this instance it is stated there will be no significant financial implications for the Exchequer. It is right we are told this but, similarly, it should be possible for legislators to know, or to have the means to assess, the cost to interested parties resulting from its implementation.

  Senator Eugene Regan: This is an excellent proposal, although I know that when one waves the Constitution, it tends to dampen the enthusiasm in pursuing an amendment.

  Senator David Norris: I wish to make a technical point before I leave. The monitors show we are on section 1, amendment No. 1, and have done so throughout the discussion of amendment No. 2. I intend to follow the debate on the monitor in the hope I will be able to return when my amendment arises for discussion. It will not be helpful if the monitors continue to show the incorrect amendments. They have now changed. I did not intend to interrupt Senator Regan.

  Senator Eugene Regan: Senator Quinn’s amendment relates to the retail sector, or mixed trading houses, in particular. In that context, I do not believe the Minister intends to introduce some of the provisions in the Bill relating to that sector. There is scope to carry out a regulatory impact analysis. The Minister of State has made the case for me that that is the type of analysis which should be undertaken before the Act is commenced.

On the constitutional point, one would not be giving the authority to implement legislation to an outside body. We are delegating authority to the Minister to implement legislation and adopt regulations under it. All that is proposed in the amendment by Senator Quinn is that an impact analysis be completed. Therefore, I am not sure the constitutional point being raised by the Minister of State is so devastating for it. I urge him to at least consider the amendment as it relates to the sector Senator Quinn has in mind.

  Deputy Conor Lenihan: I do not want to get into a lengthy reply on the matter. I accept the principle behind Senator Quinn’s suggestion. However, impact assessments of the kind he suggests should be done before legislation is introduced rather than, as he proposes, afterwards.

I put my hands in the air to a certain extent with regard to the rushed nature of the legislation. As a Minister of State in the Department of Justice, Equality and Law Reform, I and the previous Minister, had discussions with the previous Taoiseach, Deputy Bertie Ahern, as part of our outstanding bilateral discussions between Ministers in particular Departments. The overwhelming view resulting from that meeting was that matters of this kind need to be fast-[951]forwarded for various reasons, such as public order, the long gestation of discussion on alcohol related issues and the difficulties associated with situations where vested interests throw up the spectre of an alleged nanny state placing restrictions on citizens. It was, therefore, thought best to move this through speedily. That was the motivation.

In that respect, the current Minister, Deputy Dermot Ahern, is not responsible for the rushed character of this legislation. The urgency had its origins in the meeting I attended with the former Taoiseach and the previous Minister. There was an overwhelming view at official and political level at that meeting that this should be pushed through quickly because of issues relating to public order and alcohol consumption. I say all this by way of explanation.

Impact assessment is important. The Minister, Deputy Dermot Ahern, has engaged honestly with the industry and we can achieve the desired result without imposing the significant cost of €200 million on a small and fragile sector such as small retailers.

Another issue the State will have to consider, but which has not been addressed in the Bill, is the pricing of alcohol. From conversations with retailers in my constituency I am aware they are worried about vexatious regulation by way of separation of products, etc., within a store. The issue we must get to grips with, however, is pricing. I hope, now that the previous Minister for Justice, Equality and Law Reform is Minister for Finance, that he will give serious consideration to the issue of the pricing of alcohol products, beers or otherwise, on a discount basis. In many cases the cost is cheaper than a cup of coffee, which creates a problem. It is an issue that people can go into a store and buy a can of beer for less than the cost of a cup of coffee. This is the elephant in the room and the issue must be addressed by the Government. It is not covered in the legislation.

  Senator Ivana Bacik: On a point of information, I agree with the Minister of State that is an important issue, but it is addressed in section 16, which permits the Minister to make regulations prohibiting or restricting licensees from selling intoxicating liquor at a reduced price. I support that and believe it is a sensible and moderate approach. It does not ban below cost selling, but it imposes restrictions and permits the Minister to make regulations that will provide for the detail. That is a moderate and balanced approach.

  An Cathaoirleach: Is the amendment being pressed?

  Senator Feargal Quinn: I will not press the amendment at this stage because I believe the Minister should and will give some thought to the issue between now and Report Stage.

Amendment, by leave, withdrawn.

Section 1 agreed to.

SECTION 2.

  An Cathaoirleach: Amendments Nos. 2a and 12a are related and may be discussed together by agreement.

  Senator Eugene Regan: I move amendment No. 2a:

In page 4, between lines 10 and 11, to insert the following:

“ “Court” means the District Court and in relation to any application to the Court means the District Court for the court area in which the premises to which the application relates is situated;”.

[952]This amendment makes a technical definition of the word “Court”. The amendment is designed to introduce and deal with night club permits. It is designed to deal with a situation which has arisen through the provisions of the Bill which seek to harmonise or provide a common closing time for premises with special exemptions, including theatres and night clubs. As a result we have non-sequential exiting from late night drinking premises. This, essentially, tells mature adults that they should not be out late after 2.30 a.m. or 3 a.m. and tells them when it is time to drink up and go home.

This amendment is designed to introduce a provision to regularise this situation. On the question of theatres and night clubs, the measure proposed in the Bill is crude in the extreme. It affects the entire industry, has social implications and was adopted in a manner that will not achieve the primary objective of the legislation, namely, to address the public order issue. We know and the Garda has confirmed that where there is common exiting from late night drinking premises, public order issues arise.

Amendment No. 12a provides for a specific licence for night clubs. The conditions of the licence allow the business to operate between the hours of 10 p.m. and 4 a.m., provide that an admission price would be charged at a designated cash desk, subsequent to passing a security desk and prior to entering into the premises and that there would be a specific percentage of floor area, 20%, for dancing. The dancing space provision is designed to ensure that it is a genuine night club establishment and place of entertainment. Public liability insurance is also required and there must be two security persons on the front door.

Another provision is that no clients are admitted to the premises after 2.30 a.m. This provision is designed to prevent those exiting pubs from then streaming into night clubs and would contribute to sequential exiting of people from late night drinking establishments. The conditions under which a court may grant a licence, the conditions attaching to the licence and the offences giving rise to a breach of a night club permit are set out in the amendment.

This is a reasonable and correct approach to take with regard to regulating the sector. The primary purpose of the legislation is to avoid public order issues that cause huge difficulties arising late at night and early in the morning. We all concur with the basic objective of the Bill, which is to deal with the public order situation and underage drinking, etc. However, with regard to late night drinking and clubs, we have arrived at the nanny state and at telling mature adults when they should drink up and go home. This is not appropriate in the 21st century and does not address the social issues the Bill attempts to address. I urge the Minister of State to give serious consideration to my amendment.

  Senator Alex White: I strongly support the amendment put forward by Senator Regan, as well as the argument behind it. An element of straight thinking is required on this issue but, while I know the Minister of State to be both thoughtful and discerning, I was concerned to hear some of his earlier remarks. If we are serious about addressing the social problems that arise from alcohol abuse and binge drinking, it is a pity to argue for restricted opening hours in all circumstances for nightclubs and other licensed premises. It is dangerous and unrealistic to believe that the first issue is directly linked to the second. The logical conclusion would be to advocate greatly reduced opening hours for public houses, which is not being provided for in this Bill. There is, therefore, no causal link between opening hours and abuse, despite what the Minister of State suggested in his opening remarks.

Nightclubs are a feature of urban life throughout the world. There is nothing inherently wrong with them provided they are properly regulated, managed and secured. They are part of the social and entertainment fabric of every modern city. We should be honest about this [953]notion of bashing nightclubs. I visit nightclubs on occasion and I do not think there is anything wrong with doing so. Nightclubs in Barcelona and in cities in Italy and Germany open later than 4 a.m. with few repercussions in terms of policing or security. They also play an important role for the music and entertainment industry. The suggestion that people go to them because they crave more drink after falling out of pubs is not true. People abuse alcohol in various surroundings but nightclubs appear to have become fair game in the Government’s approach to this problem. There is nothing wrong with a responsible and controlled environment in which people can have a late night drink and enjoy themselves by dancing the night away. There is in this approach a touch of the nanny state which the Minister of State decried five minutes ago.

I am not making these points because my arm has been twisted by some society of nightclub operators. I do not care much about any particularly lobby group. Are we prepared to honestly say, as I am, that nightclubs are part of what we are? We should by all means regulate them in the manner proposed by Senator Regan’s careful and detailed amendment and that is the direction in which the Minister of State should proceed.

Some of my colleagues on the Government side are of the view that the provisions in the Bill will deal solely with theatre licences. We are aware of the fiction whereby nightclubs operate with theatre licences. That is crazy because they are nightclubs rather than theatres but it is the only means by which they can open late into the night. Senator Regan’s amendment takes away the reliance on theatre licences and introduces a proper nightclub licensing system. It will have the effect of addressing the issue of sequential closing in Dublin, Limerick and Cork, where public order issues arise because all the pubs and clubs disgorge their clientele at the same time. That is a completely crazy practice which I thought we had all agreed to end. It does not make sense that the streets of Dublin are crowded between 2.30 a.m. and 3 a.m. and there is nothing wrong with a relatively small number of well managed nightclubs. Senator Regan’s proposal has considerable merit, therefore, and I am happy to support it.

  Senator Ivana Bacik: I too support Senator Regan’s amendment. The present system of nightclubs operating under the guise of theatre licences is inappropriate and it is time that we clarified the law by regulating them properly. Some of us frequent nightclubs.

  Senator Alex White: From time to time.

  Senator Ivana Bacik: We do not do so every night of the week. It is reasonable that people should be able to frequent nightclubs which stay open later than pubs. A system of sequential closing should be introduced because public safety is a real concern when large numbers of people spill out on to the streets at any one time. Difficulties arise in terms of public transport and safety for young people who walk home alone because they cannot find taxis. Anybody who has been on Dame Street or any other main street in Ireland at 3 a.m. will be aware of these problems.

It would be eminently sensible to operate a sequential closing system so that some venues can stay open later than others. Proper nightclub licences which permit people not only to drink but to dance and socialise late into the night would also be sensible. Such systems can be seen in many other countries in Europe and around the world. It would allow for the creation of a more cosmopolitan culture around drinking and tourists would feel more welcome. Dublin in particular has been marketed as a place where people can enjoy a cosmopolitan drinking culture.

On a slightly more whimsical note, it is nice to be able to dance until dawn. Nightclubs are not important only for drinking; they also offer opportunities for dancing and socialising. Unless dawn comes very early, however, we will not see it with the Bill as it stands. U-turns have [954]already been taken in regard to early houses and off-licence partitions, so I would like the Minister of State to accept that nightclub licences are a sensible way to proceed, if not in the context of this Bill, then in the comprehensive legislation promised for autumn.

  Senator Feargal Quinn: I will not speak about nightclubs because it is some time since I have visited one. Perhaps the Minister of State could address the definition of “court” in amendment 2a. It seems logical in that a court other than the District Court might otherwise be involved and, if that is Senator Regan’s intention, I ask for clarification on why it is not acceptable.

  Senator Denis O’Donovan: I have mixed views on the issue of closing times. Senator Bacik spoke about dancing until dawn but I visited a night club only once in the past ten years, on the occasion of a birthday, and I felt somewhat out of place. Most of the people there appeared young enough to be my children or grandchildren.

There is a problem in terms of the misuse and abuse of alcohol and we should not forget that. I am not sure that stipulating the time at which nightclubs must close will help to resolve this. I have witnessed what happens when people spill out of nightclubs. Most of them are, unfortunately, well-loaded. I do not buy into the argument that there is a short supply of taxis. Dublin is flooded with taxis. At around 1 a.m. travelling down Dawson Street one Thursday night recently I noted there were taxis parked from one end of the street to the other.

There is another notion I would also like to put to bed. In my constituency, as in most rural towns, there is only one nightclub and as such no issue arises in regard to people spilling out on to the street at the same time. The Minister of State might correct me or clarify for me the following point. When this issue was being debated by the Fianna Fáil Parliamentary Party I recall the current Minister stating that he had been informed in discussions with the Garda Síochána at Commissioner level, that this issue was not a matter of concern for the Garda Síochána. Apparently, in areas where there are three or four nightclubs people are staggering from one to the other.

1 o’clock

I may be wrong on this and the Minister of State can correct me if I am. While I believed this issue was of concern to the Garda Síochána, the Minister stated that in discussions with the Garda Síochána at Commissioner level he was informed that the staggering of closing times in the context of crowd control was not an issue of concern for the Garda. I would have thought that where there are five or six nightclubs in one area it would be helpful if they closed at different times, say, from 2 a.m. to 6 a.m. as this would make it easier for people to get taxis home and would assist the Garda from a public order perspective. Perhaps I misunderstood the Minister but I was taken aback that his advice from top ranking Garda is that this is not the case. I would like if this matter could be put to bed once and for all. If that is the advice from the Garda Síochána then the Minister should heed it. However, I accept I may have misunderstood the Minister.

  Deputy Conor Lenihan: I thank Senator Regan for tabling this amendment. I reiterate the point that the Minister has indicated his intention to provide in the autumn a licensing permit system for nightclubs. The detail of the proposal, which contains some good ideas, could be incorporated into that legislation.

It is important to state that the Government cannot accept amendments that would have the effect of permitting nightclubs to remain open until 4 a.m. This deals by extension with Senator Bacik’s desire to dance all night. The Senator will have to dance at home or some other place as she will not be permitted to do so in a nightclub.

[955]It is important people understand that the Government intends to continue with the existing regime which provides for a closing time of 2.30 a.m. followed by a half hour drinking up period. I cannot accept the amendment tabled by Senator Alex White which proposes longer opening hours for nightclubs as provided for in Germany or on the continent. There is no strong evidence——

  Senator Alex White: Why not?

  Deputy Conor Lenihan: The current situation in England and Wales provides a salutary lesson to those who would liberalise the licensing laws in the hope of reducing anti-social behaviour and public disorder on the streets. In late 2005, when longer opening hours were introduced in the UK, British Ministers argued that the aim of this was to reduce the disorder caused when everyone emerged from licensed premises at the same time.

A research report issued by the Home Office earlier this year reported that there was no clear evidence to date that positive benefit had accrued from staggered or better managed closing times. There were no clear signs that the abolition of a standard closing time had significantly reduced problems of crime and disorder. While there were some signs that crimes involving serious violence may have fallen, the overall volume or incidence of crime and disorder remained unchanged and there was evidence of what can be described as temporary displacement in that the number of violent crimes that occurred in the small hours of the morning had grown.

Bearing this in mind and, following advice from the Garda Síochána, the Government believes the effect of postponed or delayed closure in terms of nightclubs and drinking generally is only in public order and policing terms to postpone the phenomenon to a later time. There is no defined or clear benefit in having staggered or prolonged closing times. For this reason and others, the Government has chosen to stick with the existing regime and to not provide for a 4 a.m. closing time. I believe this is sensible.

There is no point extending opening hours unless behaviour changes, as is clear from the experience in the UK generally and in particular from the local authority associations there who have undertaken surveys in this regard. A point of difference between ourselves and people on continental Europe, which is of regret, is our binge drinking habits which we share with our nearest neighbours in the UK. I lived on the continent and I never witnessed there the Irish and British phenomenon of drinking at speed in concentrated periods and resultant public disorder. I have not witnessed there such behaviour to any great extent.

I lived in eastern Europe and was quite amazed to see large numbers of young people going in and out of nightclubs late at night and very little public order or anti-social behaviour occurring. There is definitely a phenomenon in this regard in Britain and Ireland. There is no point pretending otherwise. We all aspire to experiencing here that which we experience while on holiday on the continent and so on in terms of public order on the streets. I was amazed at the behaviour of young people on the continent either on the streets late at night or during the day time.

I was lucky enough to be in the Slovak capital during its accession to the EU. There were thousands of people packed into the main town square, many of whom were drinking, yet there was not even a hint of anti-social behaviour or disorder. Also, there was not a huge police presence. The phenomenon of binge drinking in Britain and Ireland needs to be addressed be it by way of curtailed opening hours or a change in behaviour. There is no clear answer to this problem.

[956]  Senator Eugene Regan: I do not accept the Minister of State’s selective quote in regard to sequential closing times and its impact on public order. It is a self-evident proposition which cuts across any of the statements we have heard from the Garda Síochána on this issue. It is in contradiction to the practice of the Garda Síochána in co-operation with the nightclub in respect of sequential closing times. I do not know from where the Minister of State got his information.

The objective of the Bill is to ensure public order. I am making the case that to have all late night premises closing at the same time is detrimental to policing and controlled situations late at night in our cities. This will impact on tourism, the entertainment industry, music industry and, social life in urban areas and in Dublin in particular.

The issue of people spilling out on to the streets at the same time and the availability of taxis and late night buses and so on has been raised. If we are going to control the supply of alcohol in this crude fashion to adults who are simply enjoying a social occasion, we might as well revert to closing pubs on St. Stephen’s day and other days. This is crude legislation. I ask the Minister of State to accept this amendment and I hold to it. The terms of the amendment provide for a controlled and supervised situation for social drinking and entertainment. It is a reasonable proposition and one which properly regulates the licensing system for nightclubs, which is one of the objectives set out by the Minister when introducing the Bill in the Lower House.

  Senator Alex White: The Minister of State’s response was unconvincing. The premise on which it was based was that those who advocated lengthier opening hours for nightclubs in England and Wales had done so on the basis that it would reduce social disorder arising from drinking but when social disorder was found not to have been reduced, the plan had failed. Sequential opening is only one aspect of this, although an important one. It is amusing to some extent and we can talk about dancing till dawn and so on, but as legislators we have a serious responsibility. If adults wish to go out and have a good time in our cities and towns, it is not any part of our job to stop them doing so unless a compelling case is put forward that it causes harm to others. To me that is a basic premise. The proposal that opening hours for nightclubs should be more liberal is not being introduced as a public order measure but as a sensible suggestion in the interest of citizens of the State who wish to go out and have a good time, whether it is dancing until dawn or otherwise, having a late drink or meeting friends.

If there is a compelling argument that later opening hours are a risk to public order, of course we must consider it very carefully. The wish of people to stay out late drinking in nightclubs could be overridden by an argument that it would undermine public order. I accept that premise. However, no argument made by the Minister convinces me that it has that effect. In fact, the outcome of the analysis in England and Wales was that whatever level of disorder that had existed prior to the extension of opening hours remained. It appears it had a neutral, not a detrimental effect on public order. A good legislator would say that if the measure does not have a detrimental effect and if there are other positive reasons to support it, it should be implemented.

There has been much talk about what the Garda Síochána wants. Of course the Minister for Justice, Equality and Law Reform will listen carefully to its advice. However, the Garda does not run the country. It is there to perform a service for citizens of the State. One of the things I have heard over the last few days is that some members of the Garda are saying they want closing time to be at 2.30 a.m. for everybody because it is consistent with their shift pattern. They want to get everything wrapped up and sorted out by 3 a.m. so they can clear off out of town. It would be unacceptable if this decision were to be made based on the shift pattern of the Garda. If there is a compelling public order argument against later hours, we must all listen [957]to it. However, if, as in the case of England and Wales, the measure has a neutral effect, then it is not detrimental.

  Senator Ivana Bacik: As Senator White has said, this amendment is not just about public order but about public policy, and not just public policy as it relates to the consumption of intoxicating liquor but as it relates to socialising and social culture generally. Thus, it has a considerable impact. I may have sounded frivolous earlier when I mentioned dancing and so on, but it is a serious matter. In order to be serious, we must take into account that it is about more than just alcohol consumption. It is about the culture we wish to see prevail in our urban centres.

The Minister of State made some points about public order. The concern in England and Wales, as I understood it, was that the trouble was simply being deferred and that similar public order issues were occurring at a later hour. That is targeted in my own amendment, No. 9, which is similar to this one. The amendment allows some flexibility in that a court may specify that particular places close at different times, including earlier than 4 a.m. Therefore, it is not necessarily the case that all venues would be closing at the same time, which would lead to the problems identified earlier. We are all suggesting that there be some system allowing sequential or differential opening hours for different venues.

  Senator Feargal Quinn: I have not spoken on this aspect of the discussion before, but I believe there is a real effort in Senator Regan’s amendment, No. 12a, to face up to a problem which the Minister believes is creating public disorder. The Minister, when introducing the Bill, mentioned that one of its objectives was to reduce public disorder. There is a real danger that this legislation, without Senator Regan’s amendment, will impinge on citizen’s rights. In addition, it will certainly affect tourism. If we make Ireland an unattractive country to visit — the accusation of nanny state may well apply — fewer people will come here. It is difficult to defend.

A couple of years ago my wife and I were in Salt Lake City, Utah. We were invited out to dinner in a restaurant and when asked what we would like to drink, I said I would have a glass of white wine while my wife said she would have red wine. However, our host said that would present a problem as there was a law in the city that two bottles of wine could not be on the table at the same time. I had to give way and have red wine instead of white wine. This is an instance of legislation that intruded on citizens’ rights. The words “nanny state” may apply. It may well have been that when the legislation was introduced there was an objective behind it. The Minister’s objective here is to avoid public disorder and I believe Senator Regan’s amendment is an effort to achieve that. I do not think the Minister of State has made the case that the amendment should not be accepted.

  Deputy Conor Lenihan: I do not want to get in the way of Senators or other people having a good time. I am not a frequent visitor to nightclubs due to my age and lifestyle.

  Senator Alex White: The Minister of State is not averse to having a good time himself.

  Deputy Conor Lenihan: However, I did go to a nightclub recently in the company of some young models who enticed me to go. It was a well-known nightclub here in Dublin. One thing that struck me was that there was not much dancing going on but there was a lot of drinking.

  Senator Ivana Bacik: The Minister of State went to the wrong club.

  Senator Alex White: The Minister of State is going to the wrong places.

[958]  Deputy Conor Lenihan: There is a profound lesson for all of us here. Much drinking is done in Irish nightclubs and not much dancing.

  Senator Eugene Regan: So what?

  Deputy Conor Lenihan: The dancing area is generally quite small compared to the area in which people are drinking.

  Senator Eugene Regan: That is why I have put down this proposal.

  Deputy Conor Lenihan: It is also important to remember that many people in Ireland go out drinking not just to have a good time but to get drunk. This is the difference between the continental environment for alcohol and the environment in Britain and Ireland. Senator White tried to suggest that the example I cited from Britain is neutral but it is anything but. The view of the British Home Office on this is definitive as it refers to already unacceptable levels of anti-social behaviour and irresponsible use of alcohol that have not been changed by later drinking times.

  Senator Alex White: That means I am right because neutral means “not changed”.

  Deputy Conor Lenihan: If the Senator sees it as his business in politics not to achieve and to allow unacceptable levels of alcohol abuse and late night violence——

  Senator Alex White: The Minister of State should stick to the point.

  Deputy Conor Lenihan: I am sticking to the point.

  Senator Alex White: He does not accept the good faith of people on this side of the House. When people on this side of the House make an argument on the legislation that he does not like he puts it down to not being serious about controlling alcohol abuse. This is not acceptable from a Minister of State.

  Deputy Conor Lenihan: I refer to the purpose of this Bill and I want to address Senator Quinn’s point on the nanny state.

  Senator Alex White: The Minister of State should address the point.

  Deputy Conor Lenihan: If restricting the availability of alcohol and the opening hours during which people can avail of alcohol represents a nanny state then I say “guilty as charged”.

  Senator Alex White: The Minister of State is simply not listening.

  Deputy Conor Lenihan: I will refer to the survey by the British Home Office because it is interesting. It notes evidence from countries that have moved from strict opening hours to a more relaxed regime, such as Australia, New Zealand, Scotland and Iceland, and the experience has been that liberalised regimes tend to result in higher levels of alcohol consumption and more alcohol related problems of crime and disorder. A more recent survey carried out in England and Wales for the Local Government Association reported increases in alcohol related incidents. For example, half of all police authorities said that longer opening hours simply resulted in incidents occurring later at night.

  Senator Alex White: The Government introduced longer opening hours.

[959]  Deputy Conor Lenihan: The survey of police forces indicated that crimes committed between 3 a.m. and 6 a.m. were up by 22%. Meanwhile, three quarters of health authorities surveyed reported increases in spending as a result of a rise in accident and emergency department admissions between those times.

  Senator Alex White: This Government introduced longer opening hours.

  Deputy Conor Lenihan: This is why I cannot accept Senator Regan’s suggestion that we should keep these nightclubs open until 4 a.m. The Government has decided that they should close at 3 a.m. and, unfortunately, this means Senator Bacik cannot dance all night in a nightclub.

There is a serious issue in the relationship we have with alcohol. I would love if our relationship with it were similar to that on the continent, where people can dance all night, do not bump into one another, cause fights and have problems with the law. Unfortunately, in Britain and Ireland the experience has been the opposite to that on the continent. In Britain and Ireland, the longer the opening hours and the greater the availability of alcohol the more it is likely there will be public order problems of a serious nature. This is the problem we are trying to address here.

  Senator Alex White: Why does the Government allow pubs to stay open until 2.30 a.m.?

  Deputy Conor Lenihan: This Bill is the first instalment of serious new legislative measures to curtail the public disorder associated with alcohol. All governments, including this one, will have to address this issue.

I do not see how tourists can find it attractive to come to Ireland and see people falling out of pubs drunk, getting into fights and having problems with the police.

  Senator Alex White: This is pathetic.

  Deputy Conor Lenihan: I do not know of any evidence to suggest tourists come to Ireland to drink at 4 a.m. Figures show that most tourists who come to Ireland are low imbibers of alcohol who tend to be rather more sedentary than the locals regarding drinking practices and nightclub attendance. The surveys from tourist authorities show little demand from tourists for the all-night dancing and drinking experiences that are being urged here.

  Senator Eugene Regan: The Minister of State’s logic is that closing all late-night drinking establishments will curtail excessive drinking, anti-social behaviour and curb demand for alcohol. We have found in the past that this does not work. This is a killjoy Bill and I am disappointed the Minister of State continues to talk about the general problem without addressing the specific proposal being made here.

Amendment put.

The Committee divided: Tá, 18; Níl, 22.

    Bacik, Ivana.

    Burke, Paddy.

    Buttimer, Jerry.

    Coffey, Paudie.

    Cummins, Maurice.

    Fitzgerald, Frances.

    Hannigan, Dominic.

    McFadden, Nicky.

    Mullen, Rónán.

    Norris, David.

    O’Reilly, Joe.

    Phelan, John Paul.

    Quinn, Feargal.

    Regan, Eugene.

    Ross, Shane.

    Ryan, Brendan.

    Twomey, Liam.

    White, Alex.

[960]Níl

    Boyle, Dan.

    Brady, Martin.

    Butler, Larry.

    Callely, Ivor.

    Carty, John.

    Cassidy, Donie.

    Corrigan, Maria.

    Daly, Mark.

    Ellis, John.

    Feeney, Geraldine.

    Hanafin, John.

    Leyden, Terry.

    MacSharry, Marc.

    Ó Domhnaill, Brian.

    Ó Murchú, Labhrás.

    O’Brien, Francis.

    O’Donovan, Denis.

    O’Malley, Fiona.

    O’Sullivan, Ned.

    Ormonde, Ann.

    White, Mary M.

    Wilson, Diarmuid.

Tellers: Tá, Senators Maurice Cummins and Feargal Quinn; Níl, Senators Fiona O’Malley and Diarmuid Wilson.

Amendment declared lost.

Section 2 agreed to.

SECTION 3.

  Senator Eugene Regan: I move amendment No. 2b:

In page 4, between lines 28 and 29, to insert the following:

“(a) Section 12 of the Act of 2003;”.

This amendment relates to a section providing that there should be no entertainment during drinking-up time. The proposal is to include it as one of the sections to be deleted. It is a somewhat outdated provision and perhaps, as a tidying-up exercise, this can be accommodated by the Minister of State.

  Deputy Conor Lenihan: It is not outdated in the literal sense, in that it was introduced in 2003. I do not wish to pun, but this is not to be and I cannot accept the amendment. It seeks to repeal section 12 of the Intoxicating Liquor Act 2003, which prohibits entertainment during the 30-minute period of drinking-up time following normal closing time and special exemption orders. Section 12 of the 2003 Act was enacted to give effect to a specific recommendation of the Commission on Liquor Licensing’s final report, namely, that entertainment be expressly prohibited during drinking-up time. The commission pointed out that the purpose of drinking-up time, which originally was ten minutes under the Intoxicating Liquor Act 1962 but which was increased to 30 minutes in the Intoxicating Liquor Act 1998, was to facilitate a gradual and orderly departure of customers from a premises during that period. However, the continuation of entertainment during this period had the opposite effect as customers were reluctant to leave while the entertainment continued. This resulted in customers leaving together on expiry of the 30-minute period, thereby increasing the risk of disturbance and disorder on the streets outside. I cannot accept the amendment.

  Senator Eugene Regan: I do not agree with the Minister of State and this is another killjoy provision. The Oireachtas should legislate. He has referred to how the Oireachtas cannot defer to any other body in respect of legislation and this issue should be examined on its merits. While I do not consider this provision to be warranted, I will not press the amendment.

Amendment, by leave, withdrawn.

[961]Section 3 agreed to.

Amendment No. 3 not moved.

Sections 4 and 5 agreed to.

NEW SECTIONS.

  Senator Dominic Hannigan: I move amendment No. 4:

In page 5, before section 6, to insert the following new section:

“5.—Where the District Court for a particular district is exercising a discretion concerning the grant of a licence permitting the consumption of intoxicating liquor on particular premises, the Court shall exercise its discretion in such a way as to avoid the closing of a significant number of premises in a particular locality at the same time on the same day or days.”.

The purpose of this amendment is to ensure that all nightclubs do not disgorge their customers onto the streets at the same time. Many Members have received e-mails from the industry pointing out the worrying consequences of such an action. People will be queuing for taxis and possibly arguing over them. I am unsure whether the Minister of State has ever been at the top of a taxi queue when people, who perhaps have consumed too much alcohol, come along and claim to need to get home quicker. It is a recipe for disaster. The potential for trouble as a result of putting everyone out onto the streets cannot be ignored. As Members have received warnings from the industry on the consequences of this clause, I have tabled this amendment to allow the District Court some flexibility on the issue in order that licences may be obtained whereby people can leave at different stages.

  Senator David Norris: I support Senator Hannigan’s amendment as this appears to be an eminently reasonable proposal that is in the interests of the public. It now is at least six or seven years since I raised this subject in the aftermath of disturbances on O’Connell Street arising from the practice of a now-defunct nightclub to shovel people out at the same time as pubs. This frequently led to antagonism between the different groups and was a serious problem. As for the point made by Senator Hannigan on the question of transport availability, particularly in respect of taxis and so on, it does not seem logical to push everyone out at exactly the same time because they will compete in a limited market for the aforementioned resources and tempers may become frayed. This appears to be an eminently sensible suggestion that I am content to support.

  Senator Ivana Bacik: While this issue already has been debated at some length during the discussion on amendment No. 12a, I also support this amendment because it is important to have a system of sequential closing. Clearly, this would address the problems associated with the current system in which large numbers of people are disgorged onto the streets at the same time. However, a more comprehensive reform is required and it is unfortunate that the Minister of State has indicated his opposition to amendment No. 12a, which would introduce nightclub licences and would amount to a more comprehensive reform. Nevertheless, this is an important measure because it would allow flexibility in the times at which different venues close. While I am attempting to do something similar with amendment No. 9, this amendment deserves support for the reasons already described.

  Senator Eugene Regan: I support the amendment for the same reasons. The problem lies with the rigid rule of closure at 2.30 a.m. or 1.30 a.m. on Sundays and this amendment seeks [962]to address it. While the parameter of discretion ideally should be laid down in the Bill, the rigid rule creates a problem in this regard. I support the amendment, which pertains to the issue that Members have sought to impress on the Minister of State, namely, the importance of sequential closing. The Minister of State does not accept the logic of this argument for some curious reason.

  Senator Denis O’Donovan: I seek clarification from the Minister of State on a point I raised earlier regarding sequential closing times. Whatever the case may be in Wales, England or Scotland, has the Garda made a submission, either orally or in writing, that there is a problem from the perspective of policing or monitoring people coming onto the streets at 2 a.m., 3 a.m. or 4 a.m.? I understand, from the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, that senior gardaí have stated it is not an issue.

I also find it hard to believe another point. If a nightclub closes at 2.30 a.m. or 3 a.m., I fail to discern the reason there also would be a problem with people spilling onto the streets from pubs, which I understand close much earlier. Although I do not have a problem with nightclubs, I have heard its lobby expressing its concern in this regard. Most nightclub owners, when their premises’ doors are closed, are not one bit concerned about where people go or what happens out on the street. Let us be real. That is my strongly held view.

  Senator Ivana Bacik: We are concerned. We are not speaking for the nightclub industry.

  Deputy Conor Lenihan: There seems to be a textual confusion in this amendment. It is difficult to make sense of. It refers to the District Court exercising discretion in granting licences and the need to avoid closing a significant number of premises in a particular locality at the same time on the same day or days. In fact, the District Court does not grant licences. The key point here is that the timing issue is dealt with by legislation and the law, and the court then issues the licence. I will not accept this amendment because of its confusion. I suspect whoever drafted this had some confusion in his or her mind. He or she seems to have mixed the concepts of the District Court as a licensor and special exemption orders, which are a different phenomenon. I suspect this amendment seeks to look at the issue of special exemption orders but, unfortunately, the drafting of it refers to the District Court, implying the District Court has a discretion or power in this area which it does not. That is the only reason I do not accept it. Obviously, there is the broader philosophical issue we dealt with earlier.

As was mentioned by one of the speakers, we are not in favour of the staggered regime. To answer Senator O’Donovan’s point, we are not convinced from the available international evidence from Scotland, New Zealand, Northern Ireland and elsewhere, that there is a material difference. There is no reduction in crime or anti-social behaviour. All that happens with staggered closing hours in the countries which most relate to our own experience of binge drinking and such phenomena is that the problem is just pushed on later into the night or early morning. There is no indication from the most approximate jurisdictions to our own that the existence of staggered hours solves the problem.

In philosophic terms I cannot accept the amendment, but I only reject it on the basis that it is textually confused on the operation of the District Court as a licence giver, but not an institution that sets the times of openings. There seems to be confusion between the special exemption orders issue and the competence of the District Court.

  Senator Dominic Hannigan: I am sorry if the Minister of State is confused by the issue. The spirit of the amendment is clear. I could not accept what was said by one of the Senators on the Government side on what happens at the closing of pubs. When people leave pubs they [963]have a choice — to go home or to go to a nightclub — and there is not this funnelling of people into one area.

The Minister of State has seen studies done elsewhere. We are shutting off the availability of somewhere to go and suddenly all those people who are out on the town come together to find transport home. There is no facility for that demand to be spread out over several hours, which there would be with staggered opening hours. I accept that people will consume too much alcohol in some instances and it is difficult to legislate for that. What we can do with staggered opening hours is at least ensure that we reduce the number of flash points on the streets. I am disappointed that the Minister of State will not accept even the spirit of our amendment, but we will not press it.

Amendment, by leave, withdrawn.

  Senator Eugene Regan: I move amendment No. 4a:

In page 5, before section 6, to insert the following new section:

“6.—Section 4 (as amended by section 10 of the Act of 1960) of the Act of 1927 is amended:

(a) in subsection (3), by the insertion of the words “Subject to subsection (11)” at the beginning of that subsection;

(b) by the insertion of a new subsection (10A) as follows: “(10A) It shall not be lawful for the holder of a general exemption order to sell intoxicating liquor for consumption off the premises during the period of exemption.”.

This is an amendment concerning early houses. It is in the context of the debate on not discontinuing the licences for early house pubs. It is appropriate, in view of the concern for public order, that there would be no off-licence sales from early houses. That is the purpose of this amendment. It is in the spirit of addressing the issue of public order and drinking that can give rise to public disorder. It deals specifically with the off-licence sales from early houses.

  Deputy Conor Lenihan: I thank Senator Regan for this amendment, but it is not necessary since the content is already covered in section 4(1)(d), which prohibits off-sales during any period covered by a general exemption order.

  Senator Eugene Regan: I appreciate that the amendment was adopted in the context of the review in the Dáil.

Amendment, by leave, withdrawn.

  Senator Eugene Regan: I move amendment No. 4b:

In page 5, before section 6, to insert the following new section:

“6.—At the Court hearing in respect of any licensing application under the Licensing Acts 1833 to 2008, any Garda Officer, not below the rank of Sergeant, may appear and shall be heard in court in relation to such application, whether or not such application relates to premises within that Officer’s district.”.

This concerns the arrangement of licensing in the District Court. We have moved responsibility for certain licences from the Revenue Commissioners to the District Courts. There are references in the licensing Acts to the Garda superintendents being in a position to object to an application for a licence.

[964]At times there is an extraordinary level of Garda resources taken up in courts with licence applications, even because the Garda must be from the district in which the premises, in respect of which a licence is being sought, is situated. In one case in the District Court one morning there were five inspectors, 15 sergeants and other gardaí in the licensing court.

It is appropriate that there can be a Garda officer who is designated to deal with all licence applications. In many cases there are Garda inspectors and sergeants present who simply must state that they do not object to a licence applications. It seems an extraordinary waste of Garda resources.

No doubt the Garda assign these officers to the courts to deal with licence applications in compliance with the requirements of the legislation and the regulations. In ease of their responsibilities and duties, it behoves us to provide a legislative framework that makes their job easier. I commend the amendment to the Minister of State.

  Senator David Norris: I support the general thrust of Senator Regan’s amendment. If situations arise in the District Court where there may be a number of, or a couple of dozen, gardaí hanging around waiting to give evidence, that is not a proper management and use of manpower. It seems wasteful.

However, I would put in a caveat, that those persons present in court to present such evidence should be properly briefed. Sometimes it astonishes me, in looking at the way in which the District Court operates, that often there is no objection, not because there is nothing objectionable about the premises but because they have not bothered to find out. Where the garda might be asked is there an objection, he or she answers “No”, but actually does not know whether there is. That situation might be made worse if the garda is from a completely different district, unless he or she is properly briefed and in possession of the correct information.

Probably the next amendment, which is in my name, addresses this situation. However, I have that worry. I accept that it is wasteful to have large numbers of gardaí hanging around just to make a formal acknowledgement, but it is not appropriate that they should be there in the absence of being able to contribute something substantial to the understanding of the matter before the court.

  Deputy Conor Lenihan: I compliment Senator Regan for coming up with this amendment. While I appreciate the reasons behind this amendment, the Department would need some time to discuss its implications with the Garda Commissioner.

The Garda has already moved towards this idea in operational terms. Recommendation 31 of the advisory group on alcohol suggests that there should be a garda assigned to licensing matters in each Garda area. This is being discussed with the Garda Commissioner. I suggest that we return to this issue in the context of the sale of alcohol Bill later in the year.

2 o’clock

I reassure Senator Norris on the issue of gardaí being properly briefed. The purpose of the recommendation of the advisory board is to ensure a knowledgeable officer of the Garda deals with licensing matters as routine. It also ensures there is no duplication or officers — as Senator Regan stated — marching in and out of the courts sometimes not fully briefed on the case or not fully on top of matters. This is why we must move to a position where someone is assigned responsibility to collate the information and deal with these matters. I agree with Senator Norris that it is important that whoever is in court knows the background, history, feelings of people in the area, troubles and the difficulties generated when it comes to licensing issues. I do not know if this will allow Senator Regan to withdraw his amendment, but the matter is being dealt with in the context of the sale of alcohol Bill. [965] Our preference is that it be dealt with as an operational matter for the Garda, rather than through legislation although both could be recommended.

  Senator Eugene Regan: It is appropriate that it should be dealt with in this Bill. The fact is we are transferring further responsibilities to the District Court. I will press the amendment.

  Senator David Norris: The Minister of State complimented Senator Regan on his ingenuity. I compliment the Minister of State on the ingenuity and variety of his methods of evading or avoiding accepting amendments. It is a remarkable intellectual exercise and I regret that I will not be here for the entire afternoon to appreciate the full repertoire of the Minister of State's manoeuvres. However, I am an admirer and I wish to put this on the record of the House.

Amendment put.

The Committee divided: Tá, 17; Níl, 22.

    Bacik, Ivana.

    Burke, Paddy.

    Buttimer, Jerry.

    Coffey, Paudie.

    Cummins, Maurice.

    Fitzgerald, Frances.

    Hannigan, Dominic.

    McCarthy, Michael.

    McFadden, Nicky.

    Norris, David.

    O’Reilly, Joe.

    Phelan, John Paul.

    Quinn, Feargal.

    Regan, Eugene.

    Ross, Shane.

    Ryan, Brendan.

    Twomey, Liam.

Níl

    Boyle, Dan.

    Brady, Martin.

    Butler, Larry.

    Carty, John.

    Cassidy, Donie.

    Corrigan, Maria.

    Daly, Mark.

    Ellis, John.

    Feeney, Geraldine.

    Glynn, Camillus.

    Hanafin, John.

    Keaveney, Cecilia.

    Leyden, Terry.

    MacSharry, Marc.

    Ó Domhnaill, Brian.

    Ó Murchú, Labhrás.

    O'Brien, Francis.

    O’Donovan, Denis.

    O'Malley, Fiona.

    O'Sullivan, Ned.

    Ormonde, Ann.

    Wilson, Diarmuid.

Tellers: Tá, Senators Maurice Cummins and Eugene Regan; Níl, Senators Fiona O’Malley and Diarmuid Wilson.

Amendment declared lost.

Section 6 agreed to.

SECTION 7.

  Senator David Norris: I move amendment No 5:

In page 6, subsection (3), line 17, after “evidence.” to insert the following:

“The Superintendent of the Garda Síochána must present to the Court a document certifying whether the premises has been appropriately and properly managed and supervised during the preceding year.”.

[966]This amendment seeks to address the position I referred to just a few minutes ago, where the court has inadequate or no information at all about the behaviour of the people running these premises in the preceding year. To a certain extent I am inspired to table this amendment from reading what Professor Keane stated about the responsibilities of senior consultants within the health service. He pointed out that in Canada, it is a requirement of a senior consultant in hospitals to issue a certificate every year of competence to all those medical personnel underneath the consultant. This avoids, as much as possible, botched operations and diagnoses.

I have attended court on a number of occasions where applications for licences have simply been rubber-stamped. There is no other possible description of it. When I mentioned this before, a large number of people, including solicitors, came to me and told me I was perfectly right. They had attended court on such occasions. This is not appropriate.

If we are to grant licences on the basis of the good character and responsible behaviour of the proprietors, we must have some evidence. It is not sufficient for a judge to rubber-stamp a string of these applications without the slightest inquiry. I have seen cases where there were serious questions about the way in which licensed premises, in particular, were being run and yet the applications went through on the nod.

A requirement to produce a certificate is not very onerous but would assist in the proper running of premises. It should be a minimal requirement as otherwise judges will simply issue licences without any knowledge of the behaviour of the people behind the applications. This will happen unless the application becomes so scandalous that it appears in the newspapers or other media and the judge becomes aware of it through these channels.

  Senator Ivana Bacik: I support Senator Norris’s amendment, which is in keeping with the spirit of the legislation in its positive sense. It seeks to achieve a proper regulation of premises selling alcohol, which is what we are all seeking to do. We may disagree on how best that regulation would be achieved and the particular issues around restrictions, opening times and so on. We are all in favour of proper regulation to avoid the problems associated with alcohol abuse and public disorder. The amendment is in keeping with that spirit.

  Deputy Conor Lenihan: I appreciate the intention of Senator Norris’s amendment. Section 7 deals with applications for new off-licences and subsection (3) gives the Garda and local residents the opportunity to object on any ground set out in subsection (1) to the granting of the required District Court certificate. These grounds include that an off-licence would be unsuitable for the area or that there are already sufficient off-licences in the area.

Since these are applications for new licences and not renewals of existing licences, the Garda superintendent is not in a position to present a document certifying that the premises have been properly managed and supervised during the preceding year. The matter raised in this amendment could be considered in the context of licence renewal, which will be dealt with the forthcoming sale of alcohol Bill. I agree with Senator Norris in this respect as there is a distinct problem of judges not having the requisite knowledge or information about the character of the individual behind a particular licence application and what has been the previous experience of management of a particular premises. However, this applies to renewals rather than de novo applications for off-licences. I remind the Senator that this measure operates in two ways in so far as courts are sometimes influenced by the Garda Síochána, even though the company and directors of premises may have changed. I have dealt directly with a case in my constituency in which new directors who were reforming the operation of the premises were stuck with the reputation of the previous company directors who had misrun the premises. I agree with the [967]spirit of the amendment, which could be incorporated in some fashion in the sale of alcohol Bill in the autumn.

  Senator David Norris: I thank the Minister of State who is correct on this matter. However, part of the reason is that the legislation has been rushed into the House. I am pleased he has accepted the idea behind the amendment and look forward to its inclusion in the sale of alcohol Bill later in the year.

I will amplify a point made by the Minister of State. Sometimes, even in a new premises, the person making the application is, to use an unfortunate phrase, known to the Garda and others as a person who is completely unsuitable. In such circumstances, it would be particularly appropriate to hear evidence from the police.

The Minister of State said various sections of the Bill provide an opportunity to the public or authorities to object on various grounds. We must go further and make this a requirement because these grounds are sometimes not as clear as they should be or are ideologically driven. I volunteered to join the north inner city policing committee. There is no advantage to doing this but I believe in taking a responsibility for my area. One of the matters that arose at a meeting of the committee, at which the assistant city manager and various officials were present, was the question of the licensing of new off-licences and the proliferation of licences for corner shops, supermarkets and so forth. The committee requested a report on this issue. When we received it we found it was ideologically driven and the only principle it respected was that of competition. The welfare of the citizens of the surrounding area was of no consequence. I forced the withdrawal of the report because the people within our city authorities were observing what they considered to be an ideological requirement. As the Government is in favour of competition, when considering granting licences and planning issues they focus exclusively on competition rather than the well-being of the surrounding area. This was a dreadful approach. Some tests of character are important and should be taken into account.

I welcome the Minister of State’s response and I will await the publication of the sale of alcohol Bill in the autumn. I hope he or his colleagues will ensure the proposal in my amendment is included in the legislation. I thank him for his interesting statement in this matter.

Owing to other commitments, I regret I will not be present for discussion of a later amendment. However, I understand Senator Bacik has agreed to move an amendment on the labelling of containers. I am sure the Cathaoirleach or Leas-Chathaoirleach will permit that.

Amendment, by leave, withdrawn.

Section 7 agreed to.

Section 8 agreed to.

SECTION 9.

  Senator Eugene Regan: I move amendment No. 5a:

In page 7, to delete lines 17 to 49 and in page 8, to delete lines 1 to 4 and substitute the following:

(a) not later than 6 months after section 8 of this Act is commenced, the Minister shall lay before each House appropriate regulations for the structural separation for the sale of intoxicating liquor,

[968](b) such regulations shall be approved by each House and shall come into force not later than the first anniversary of such approval,

(c) the Minister shall, prior to laying of the above regulations before each House of the Oireachtas, consult with representatives of the industry to facilitate the practical implementation of the above regulations.”.

This amendment concerns the structural separation for the sale of intoxicating liquor in mixed trading establishments or premises. It proposes that rather than make provision in the Bill for specific measures to be put in place without adequate consultation with the industry, the relevant regulations would be adopted by the Minister, following consultations, six months after the adoption of the Act. This is an alternative to rushing through a measure which could have unintended consequences and impose a burden on the retail sector that is disproportionate to the objective sought.

  Deputy Conor Lenihan: I assume this amendment was intended to propose that structural separation would be implemented by means of regulations tabled by the Minister following consultation with relevant interests and that any such regulations would require the approval of both Houses of the Oireachtas before entering into force. This is not what the amendment proposes. By not proposing the repeal of lines 14 to 16, inclusive, on page 7, the proposed new text of sub-paragraphs (a), (b) and (c) remain subject to the introductory text. In short, the amendment does not make sense. The Minister has commented on the possibility of implementing a code of practice as an alternative to the structural separation. That remains his intention.

  Senator Feargal Quinn: I support the amendment in the knowledge that if more time had been available for consideration of the Bill, it would have been preferable to have included Senator Regan’s proposal in the legislation. However, following a meeting with retailers who are concerned about the provisions on structural separation, the Minister agreed not to commence the section pending the introduction of a code of practice by retailers. Senator Regan is correct that it would be preferable to have included his proposal. Nevertheless, the Minister has paid attention to the concerns of the trade. The cost of imposing the provisions would have been prohibitive. I am not sure if the figure of €200 million is correct but it is outrageous that we would consider imposing such costs. The Minister has listened and his proposal appears to be acceptable. I remain concerned, however, and would prefer if Senator Regan’s proposal was accepted.

  Senator Ivana Bacik: I support Senator Regan’s amendment and concur with Senator Quinn’s comments. In essence, Senator Regan seeks to do what the Minister has promised to do in any case. It is another unfortunate consequence of the decision to rush through the legislation that the Government’s amendment does not reflect the reality of what the Minister has agreed, whereas Senator Regan’s amendment, which I presume will not be accepted, is more reflective of that reality.

  Senator Eugene Regan: I cannot express the matter better than Senator Bacik has done. The amendment makes perfect sense and it is evident what it intends to do. It is reasonable to address technical matters of this nature in the form of delegated legislation whereby the Minister would adopt regulations. That is the intention behind my amendment, which I do not propose to press.

Amendment, by leave, withdrawn.

[969]  Senator Terry Leyden: Amendments Nos. 6, 6a and 7 are related and may be discussed together.

  Senator Feargal Quinn: I move amendment No. 6:

In page 8, between lines 5 and 6, to insert the following:

(a) any premises the subject of an exemption granted under section 3A (as inserted by section 10 of the Intoxicating Liquor Act 2008).”.

I move the amendment on behalf of my colleague, Senator Alex White.

  Senator Eugene Regan: Amendment No. 7 suggests an exemption from the structural separation provisions in the case of premises at which specialist tobacco and alcohol products are sold. It is almost farcical that the structural separation provisions should apply to establishments of this nature.

  Deputy Conor Lenihan: I cannot accept these amendments, which seek an exemption from structural separation requirements for special tobacconists. The only special tobacconist with which I am familiar is J. J. Fox Limited, opposite Trinity College. The first difficulty is that the proposed new section, despite its length, does not contain a definition as to what constitutes a specialist tobacconist. Although it states that such an individual is a person who sells specialist tobacco and alcohol products, questions still arise as to what are such products and how they differ from products on the shelves of ordinary off-licences or up-market supermarkets. I cannot see the difference.

The extent to which a provision along the lines of the proposed new section is required is not clear. The Department received one submission in respect of a possible future development. Wine is already exempted from the structural separation provisions. It would only be necessary, therefore, to display spirits behind the counter in such specialist outlets and sell them from there.

I do not know whether alcohol is sold at J. J. Fox Limited, opposite Trinity College. Regardless of whether it sells expensive Cuban cigars or cognac I also do not know whether setting establishments of this nature apart would set a good precedent, particularly in the context of what we are trying to achieve, namely, to control the display of alcohol products.

  Senator Eugene Regan: The amendment is clear and suggests that the structural separation provisions should not apply to premises that sell specialist tobacco and alcohol products. The introduction of a code of conduct is being examined. If the Minister of State will indicate that this matter could be considered in that context, I will not be inclined to press the amendment.

  Deputy Conor Lenihan: Apart from the absence of any criteria to distinguish specialist outlets from non-specialist ones, another problem arises. While the Minister for Justice, Equality and Law Reform has general responsibility for the licensing laws, he or she has no direct involvement in granting of licences or the application of those laws. These are matters for the courts and the Garda. It would not be appropriate to give the Minister a direct role in such matters.

This is another of those issues that can be teased out when, and if, the industry draws up a code of practice. One would not like a situation to arise where the specific requirements of one of the retailers in question might be upset due to the uniqueness of the products he or she sells. However, we cannot differentiate between the treatment of ordinary off-licences and specialist establishments. That would not be fair. I do not wish to be trite but if we made [970]exceptions for people who purchase expensive Cuban cigars or wonderful cognacs of one kind or another, we would probably be accused of being somewhat elitist. We will consider the matter in the broader context of the Bill.

Amendment, by leave, withdrawn.

Amendment No. 6a not moved.

Section 9 agreed to.

SECTION 10.

Amendment No. 7 not moved.

  Acting Chairman: Amendment No. 8a is an alternative to amendment No. 8 and amendment No. 9 is an alternative. Therefore, amendments Nos. 8, 8a and 9 will be discussed together by agreement. Is that agreed?

  Senator Ivana Bacik: That is agreed, although I will address each of the amendments separately. Amendments Nos. 8 and 8a are similar in their effect but amendment No. 9 is rather different. I am happy to discuss them together but it is clear that they will have to be considered separately.

  Acting Chairman: That will certainly speed up the passage of the Bill.

  Senator Ivana Bacik: That is fine.

  Senator Eugene Regan: The legislation should not be rushed.

  Senator Ivana Bacik: It is unfortunate that the legislation is being rushed in this way. The confusion surrounding the grouping of amendments and the way in which the procedure relating to them has been operated is most unfortunate. We would have liked more time in which to deal with these amendments.

  Acting Chairman: Are the arrangements for discussing the amendments agreed? Agreed.

  Senator Ivana Bacik: I move amendment No. 8:

In page 10, lines 4 and 5, to delete paragraph (c) and substitute the following:

“(c) by substituting the following subsection for subsection (5):

“A special exemption order shall expire not earlier than 2.30 a.m. on any day of the week unless the Court, for stated reasons including reasons related to maintaining public order, considers it expedient to grant the order for a shorter period.”.”.

This is an amendment to section 10. The latter amends section 11 of the Intoxicating Liquor Act 2003, which inserted a new section 5 into the Act of 1927. There is already, therefore, a compendium of different provisions in place. The effect of existing legislation is that those who hold theatre licences are exempted from the closing times other licensed premises may apply for by way of special exemption orders.

The entire premise of this system is flawed. The fact that late bars must apply for special exemption orders in order to open is problematic. I hope that matter will be addressed in the autumn. I also hope that a specific nightclub licence will be introduced. The latter would [971]remove the need to employ archaic measures such as theatre licences or provisions which do not suit the reality of the situation.

Everyone wants comprehensive reform. The Minister of State has repeated a mantra in respect of various matters to the effect that he will “be looking at this in the autumn”. He also stated that changes will be introduced by means of the sale of alcohol Bill. That is really a way of rejecting many of the amendments tabled. Unfortunately, this means that an interim system will be in place during the summer months whereby different closing hours will obtain. It appears that some of the restrictions that will be in place during the summer will, perhaps, be removed in the autumn.

Due to the fact that this is an interim Bill, I seek to make an interim amendment that will resolve the situation whereby there will be an unnecessary restriction in place during the summer to the effect that all those establishments, be they bars or clubs, with special exemption orders will be obliged to close at 1 a.m. on Mondays. The impact of the provisions in section 10, particularly those in paragraph (c), will be that all licensed premises with special exemption orders, be they bars or clubs, will be obliged to close at 2.30 a.m. every day other than on Mondays, when they must close at 1 a.m.

I take exception to the idea that Sunday nights are different for everybody. They are certainly different for those of us who work nine to five, Monday to Friday. Obviously, Members do not work nine to five and they often work very different hours. However, there are those who work shifts and people in the services sector and the entertainment industry for whom Sunday night is their night off because it is a quiet time for everyone else. If people wish to remain out beyond 1 a.m., I do not see where the problem arises.

As stated previously, I have been lobbied by nightclub industry representatives. However, I do not hold a brief for them. This issue does not merely relate to the industry, it is much broader than that. We have all been lobbied and contacted by ordinary punters who, as consumers, wish to be able to go out at night. I do not understand why people feel there is a need to curtail their enjoyment at 1 a.m. each Monday.

The term “nanny state” is overused. However, this is an overly paternalistic measure. It is like the measures we had in the past, such as the holy hour. It will not do any good in terms of preventing alcohol abuse or public disorder. It is an unnecessary measure to make this distinction between Sunday night and other nights. Will the Minister of State consider accepting either my amendment or Senator Regan’s amendment No. 8a which would have the same effect in terms of restoring 2.30 a.m. as the potential closing time for special exemption orders on a Sunday night?

Amendment No. 9 has a different effect. Essentially, I seek to build on the special exemption orders by permitting the District Court where a application is made to it by a licensed premises to permit it, having considered all the reasons offered, including reasons relating to maintaining public order, to grant a special extension of time within which alcohol may be served beyond the time for which the special exemption order applies.

It is very similar to the amendment Senator Hannigan tabled, amendment No. 4, in which he sought to ensure that the court could exercise discretion to avoid all premises in an area closing at a particular time. What I hope to do here, in somewhat more elegant drafting, is to achieve the same objective, that is, to achieve a sequential closing time and to allow flexibility for the court but within the parameters of the existing special exemption orders.

I seek to amend section 10 to insert a new subsection (e) which would allow a court to grant a special extension of time up to two hours beyond the expiry of a special exemption order. This would permit places to close up to 4.30 a.m. However, it gives flexibility to the court to make the time shorter and it builds in, as I have done with amendment No. 8, a provision that [972]the court may look at reasons relating to maintaining public order. It is a reasonable approach and I ask the Minister of State to take it on board if not now, then in the autumn. However, I would very much like him to take it on board now because I do not see why we should have an interim arrangement over the summer which will restrict closing hours, particularly on a Sunday night, with the promise of something else in the autumn.

I will press these important amendments. I do not see any rationale not to accept them even in terms of the Minister’s stated intentions in regard to the Bill.

  Senator Feargal Quinn: I support Senator Bacik’s views, particularly in regard to amendment No. 9. The objective is to give the power to the court to extend a licence on occasion. We already had the discussion about premises closing at the same time. What will happen if the amendment is not accepted appears heavy-handed. The amendment is worthy of support because of the case Senator Bacik made and I urge the Minister of State to accept it.

  Senator Eugene Regan: I support Senator Bacik’s amendment. Amendment No. 8a has exactly the same effect and relates to early closing on Sunday night. That is another killjoy provision which is inappropriate. The point about sequential closing has been made before and the amendment is a very eloquent way to deal with the issue. I commend the amendment to the House.

  Deputy Conor Lenihan: Before the general election, Senator Regan’s party leader was very keen to invoke the Judeo-Christian tradition as one of the bases for the development of Irish life and society in the future. It puzzles me that Fine Gael seems to have departed from the notion of Sunday being sacred or, in a sense, being different even if one does not have a religious belief——

  Senator Maurice Cummins: The Minister of State should stick to the amendment.

  Senator Ivana Bacik: That is not the point.

  Deputy Conor Lenihan: I am not keen nor is the Government——

  Senator Maurice Cummins: Cheap shots.

  Deputy Conor Lenihan: ——on extending the period within which opening can occur to 2.30 a.m. We cannot accede to that amendment.

We also have a problem with Senator Bacik’s suggestion that we give a two-hour supplement to special exemption orders. Again, it goes back to the philosophical standpoint of this Bill. We are not in favour of extending hours generally.

When the Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights submitted the report on which much of the Intoxicating Liquor Bill 2000 was based, it noted that Sunday was a day which, unlike the other weekend nights, precedes a day of work for most people. In the circumstances, the committee was inclined to recommend that no special exemption order be granted for Sunday night-Monday morning. The Government subsequently decided to permit such orders on Sunday nights but not beyond 1 a.m. on Monday morning. While I admit much has changed since 2000, I am not convinced the time has come to extend that deadline to 2.30 a.m. We know absenteeism from work is already a problem and my fear is that longer opening hours on Sunday night could add further to the problem.

Consultation with the social partners would be necessary before any such change could be contemplated. I am not referring here to employers’ organisations only. The organisations [973]representing those who already work long hours in the bar trade and wider entertainment sector would also need to be consulted.

Senator Bacik’s other amendment is for an additional two-hour exemption to be added on to certain special exemption orders. In short, special exemption orders could be sought until 4.30 a.m. on weekdays and 3 a.m. on Sunday night-Monday morning. According to the amendment the court would grant this supplementary exemption on being satisfied the applicant had made a particular case. No detail or guidance is given on what might constitute a particular case. What factors would the court take into account? Would it apply to all the special occasions defined in subsection (1)? I cannot accept the amendments.

One of the problems with the theatre licence is that a coach and four has been driven through the whole concept of a theatre licence and because of the loophole accepted by the High Court, it ends up as an opportunity for everybody to open up later.

  Senator Maurice Cummins: That was as a result of rushed legislation.

  Deputy Conor Lenihan: This would create another unmanageable loophole and another series of unmanageable later openings which we do not need.

  Senator Ivana Bacik: I do not see the problem with opening later. I do not believe the Minister of State has made the case that the restriction of opening hours is a causal factor in alcohol abuse or in public disorder. Responding to his point about consulting the social partners in respect of any change, the provision unamended would change the current situation. The current situation is that persons who hold a theatre licence can open until 2.30 a.m. on a Monday morning and that the provision in the Bill, as I understand it because it is complex and I hope I have not gotten it wrong, unamended would result in a change to restrict opening hours on a Sunday night-Monday morning to 1 a.m. It would bring theatre licence holders back to the position of pubs in the possession of special exemption orders. I hope somebody will correct me if I am wrong on that. If that is the case, then a change is proposed in the Bill. The Minister of State’s points about the need to consult social partners, etc., are unmerited.

3 o’clock

We are operating under a flawed system, that is, the special exemption order system. I would much prefer to see a more honest approach to licensing which allowed pubs to apply for late opening without the need to go through the motions of special exemptions and which allowed clubs to operate under a different nightclub licence, as Senator Regan has proposed. The current system smacks of paternalism. It would be open to the Minister of State to accept the amendments on nightclub licences which would resolve the problems he has expressed about the driving of a coach and four through the theatre licence. The theatre licence is fictional, as we have all said. All of us would be in favour of seeing something more honest and realistic in place to replace the current theatre licence.

I propose a stopgap to try to address the issue while we have a system of special exemptions in place and to allow the extension of special exemption orders at the discretion of the court, as proposed by amendment No. 9, or at the very least the more restrictive measure in amendment No. 8 to allow opening until 2.30 a.m. for any licensed premises with a special exemption order over seven nights per week and not only Monday to Saturday.

To suggest Sunday night is different discriminates against those who do not work Monday to Friday. I did not think there was a religious rationale. I had completely neglected that because, given that the current situation allows theatre licenceholders open later on Sunday nights, I do not believe there is a ground to suddenly raise a religious objection. The objection was raised because of Monday absenteeism but that can be addressed in other ways. The people who go out on Sunday night tend not to be those who work on Monday morning.

[974]  Senator Eugene Regan: With regard to the Minister of State’s comment, I do not presume, as he suggests, that it is inconsistent to go to church on Sunday and go for a drink late on Sunday night. I support the amendments. The Minister of State has given different reasons for rejection of amendments. Earlier, on Senator Quinn’s amendment, he said it could not be adopted because it gives authority to another body. Now he says he cannot accept this amendment because it would need to be decided by the social partners. There is inconsistency in his approach to different provisions of the Bill, in particular this amendment.

  Acting Chairman: Is the amendment being pressed?

  Senator Ivana Bacik: Yes.

Question put: “That the words proposed to be deleted stand.”

The Committee divided: Tá, 22; Níl, 17.

    Boyle, Dan.

    Brady, Martin.

    Butler, Larry.

    Carty, John.

    Cassidy, Donie.

    Corrigan, Maria.

    Daly, Mark.

    Ellis, John.

    Feeney, Geraldine.

    Hanafin, John.

    Keaveney, Cecilia.

    Leyden, Terry.

    MacSharry, Marc.

    Ó Domhnaill, Brian.

    Ó Murchú, Labhrás.

    O’Brien, Francis.

    O’Donovan, Denis.

    O’Malley, Fiona.

    O’Sullivan, Ned.

    Ormonde, Ann.

    White, Mary M.

    Wilson, Diarmuid.

Níl

    Bacik, Ivana.

    Burke, Paddy.

    Buttimer, Jerry.

    Coffey, Paudie.

    Cummins, Maurice.

    Fitzgerald, Frances.

    Hannigan, Dominic.

    McFadden, Nicky.

    Mullen, Rónán.

    O’Reilly, Joe.

    Phelan, John Paul.

    Quinn, Feargal.

    Regan, Eugene.

    Ross, Shane.

    Ryan, Brendan.

    Twomey, Liam.

    White, Alex.

Tellers: Tá, Senators Fiona O’Malley and Diarmuid Wilson; Níl, Senators Ivana Bacik and Maurice Cummins.

Question declared carried.

Amendment declared lost.

  An Cathaoirleach: As amendment No. 8 was negatived, amendment No. 8a cannot be moved.

Amendment No. 8a not moved.

  Senator Ivana Bacik: I move amendment No. 9:

In page 10, between lines 17 and 18, to insert the following:

“(e) by inserting the following subsection after subsection (9):

[975]“(10) Where the Court is satisfied that a particular licensed premises has, on an application for a special exemption order, made a particular case for an additional extension of the time during which intoxicating liquor may be sold on that premises beyond the time for which the special exemption order applies, the Court may, having considered all the reasons offered including reasons related to maintaining public order, grant a special extension of the time for which the special exemption order applies. Such special extension order shall permit the sale and consumption of intoxicating liquor upon that premises, without penalty for contravention of the provisions of this Act relating to prohibited hours, for a further period of up to two hours beyond the expiry of the special exemption order.”.”.

Amendment put.

The Committee divided: Tá, 16; Níl, 21.

    Bacik, Ivana.

    Burke, Paddy.

    Coffey, Paudie.

    Cummins, Maurice.

    Fitzgerald, Frances.

    Hannigan, Dominic.

    McFadden, Nicky.

    Mullen, Rónán.

    O’Reilly, Joe.

    Phelan, John Paul.

    Quinn, Feargal.

    Regan, Eugene.

    Ross, Shane.

    Ryan, Brendan.

    Twomey, Liam.

    White, Alex.

Níl

    Brady, Martin.

    Butler, Larry.

    Carty, John.

    Cassidy, Donie.

    Corrigan, Maria.

    Daly, Mark.

    Ellis, John.

    Feeney, Geraldine.

    Hanafin, John.

    Keaveney, Cecilia.

    Leyden, Terry.

    MacSharry, Marc.

    Ó Domhnaill, Brian.

    Ó Murchú, Labhrás.

    O’Brien, Francis.

    O’Donovan, Denis.

    O’Malley, Fiona.

    O’Sullivan, Ned.

    Ormonde, Ann.

    White, Mary M.

    Wilson, Diarmuid.

Tellers: Tá, Senators Ivana Bacik and Maurice Cummins; Níl, Senators Fiona O’Malley and Diarmuid Wilson.

Amendment declared lost.

Section 10 agreed to.

Section 11 agreed to.

SECTION 12.

  Senator Ivana Bacik: I move amendment No. 10:

In page 10, line 29, to delete “container;” and substitute the following:

“container. All such containers must carry a clearly identifiable mark indicating the specific address and location of the point of purchase;”.

[976]Senator Norris in proposing this amendment is seeking to ensure that containers or bottles of alcohol carry an identifiable mark which would indicate the off-licence from which they were bought, the purpose of which is self-evident.

  Deputy Conor Lenihan: The making of regulations to require labelling of alcohol containers is already provided for in section 22 of the Intoxicating Liquor Act 2003. This legislation permits the making of a statutory instrument specifying particulars to be affixed to containers at off-licence premises in which alcohol is sold for consumption thus enabling the premises concerned to be identified.

While the labelling of containers might on first sight appear to be an attractive solution, significant challenges need to be overcome to render it effective in practice. There are practical difficulties at retail level where several individual containers are packaged together for sale, namely, an enclosed six-pack of bottles, a plastic wrapped tray of cans or a nailed wooden box containing bottles of vintage wine. This inevitably raises the question of whether the label should be attached at an earlier stage in the supply chain rather than at the point of retail sale. Attaching such labels at an earlier stage could create logistical difficulties for distributors and, in the case of imports from European Union countries, any additional labelling requirements might be regarded as infringing the European Community’s Internal Market rules which are intended to guarantee the free movement of goods and services.

Even if such logistical difficulties could be overcome, an equally important concern is whether or not any such additional labelling requirements would improve enforcement of the law. It is clear that possession by an under-age person of a labelled container could not in itself constitute proof that the alcohol contained therein had been illegally supplied to him or her by the licensee whose particulars appear on the container. The alcohol in question might have been taken from a family home or could have been sold to a person over the age of 18 years before being passed to the under-aged person. Indeed, a labelled container might have changed hands several times before finding its way into the hands of the under-age person in whose possession it was found.

The Attorney General’s office has expressed serious doubts about the evidential value of possession of a labelled container and doubt is therefore cast on the benefits of any regulations made under the 2003 Act. For these reasons, I have taken the view that regulations under section 22 would not be worthwhile. However, I would be prepared to give serious consideration to any reasonable and workable alternative.

  Senator Ivana Bacik: I am grateful for the Minister of State’s views and clarity on the matter.

Amendment, by leave, withdrawn.

Section 12 agreed to.

Section 13 agreed to.

SECTION 14.

  Senator Alex White: I move amendment No. 11:

In page 13, line 8, to delete “A member” and substitute the following:

“Without prejudice to any other power to conduct an investigation existing apart from this section, a”.

[977]The basis for this amendment is that the High Court has already upheld the validity of investigations of the type referred to in this section. In those circumstances, confusion might be caused by the introduction of a statutory power that might cast doubt on the validity of investigations not carried out under this particular section. We are proposing the insertion of this clause in order to avoid any lack of clarity on the matter. We wish to make it clear that the previous power is not being interfered with and that no issue arises in that regard.

  Deputy Conor Lenihan: Unlike Senator Alex White, I am not a lawyer. I am not, therefore, a competent person in terms of the detailed legal issues raised. The Minister and I have been informed by the Attorney General that an amendment on these lines is not required. I do not propose, therefore, to accept the amendment. I am guided by the legal expertise made available to the Minister in this regard. I am not in a position to duel with the Senators on the legal niceties of these issue.

  Senator Alex White: The advice the Minister of State received appears not to be correct. If the section is to be passed in its current form it will lead to the type of exposure outlined. With respect, the Minister of State is wrong in this regard. If he is resting on the advice obtained, even in the face of the point having been put to him, there is not a great deal that can be done.

  Senator Eugene Regan: The Minister of State is, in terms of his response, winging it at this stage. This is the type of amendment that would refine the legislation. Given the Minister of State’s determination not to accept any amendments, I understand from where he is coming.

  Deputy Conor Lenihan: I am purely informing the House that I am not a lawyer unlike Senators Alex White and Eugene Regan. The Government is relying on the professional advice offered by the Attorney General’s office through the Parliamentary Counsel at its disposal that such a clause is not required. Unlike Senators Alex White and Regan, I am not a genius in many different disciplines. I do not believe I am in a position to ignore the legal advice offered to me by the Attorney General.

  Senator Alex White: It is sometimes gratifying to have one’s professional background acknowledged by a Minister. However, I am not here in that capacity but as a Member of the Seanad, as is Senator Regan. The fact that we are lawyers has nothing to do with it. This matter is before the Seanad and all the Minister of State can say is “No”. He says he has advice which tells him not to proceed with it. He is saying, essentially, that either he does not have the detail of that advice or he does not understand it, and in those circumstances, he is not accepting the amendment. Senator Regan is right. There is a clear intention on the part of the Minister of State not to accept any amendments. This points to the bad faith of the Government in its approach to the House with regard to this Bill. I do not want to direct this personally at the Minister of State but I must use those words.

  Senator Maurice Cummins: Hear, hear.

  Deputy Conor Lenihan: I am acting on legal advice. I cannot add anything.

Question, “That the words proposed to be deleted stand,” put and declared carried.

Amendment declared lost.

Section 14 agreed to.

NEW SECTION.

  Senator Mark Daly: Amendment No. 12 is withdrawn.

[978]  Senator Eugene Regan: I object to the withdrawal of this amendment. It is a very good amendment which would command the support of this side as well as the Government side of the House. I commend the amendment to the House for consideration.

  Senator Alex White: Senator Regan should move the amendment.

  An Leas-Chathaoirleach: Senator Daly did not actually move the amendment.

  Senator Alex White: I move the amendment.

  An Leas-Chathaoirleach: The amendment must be moved by its proposer.

  Senator Alex White: Senator Quinn moved an amendment put down by me earlier as I was not here.

  An Leas-Chathaoirleach: The Senator must have given permission to Senator Quinn to move the amendment.

  Senator Alex White: As a matter of fact, I did not.

  An Leas-Chathaoirleach: That is not a precedent for this amendment.

  Senator Alex White: To be clear, I did not give anybody permission to move the amendment. That is a fact. We did not discuss it. Senator Quinn moved my amendment when he saw I was not here. He took a decision to move it without any discussion with me. It is not the case that permission is required. The Leas-Chathaoirleach did not ask Senator Quinn whether he had my permission to move the amendment, so why is permission now being introduced as a factor?

  An Leas-Chathaoirleach: One of the Senators associated with the amendment is in the House and he is not moving the amendment.

  Senator Alex White: It is cynicism——

  Senator Maurice Cummins: On a point of order, the Senator said he was withdrawing the amendment, not that he was not moving it.

  An Leas-Chathaoirleach: Technically, he did not move it.

  Senator Maurice Cummins: He withdrew it by leave of the House. He asked the leave of the House to withdraw it. That is what we are saying.

  An Leas-Chathaoirleach: The amendment was not moved.

  Senator Alex White: I moved it.

  An Leas-Chathaoirleach: Senator White does not have permission to move the amendment.

  Senator Alex White: I ask the Leas-Chathaoirleach to give me a ruling on where the issue of permission arises. In what respect is it required that a Senator, when moving someone else’s amendment, requires his or her permission?

  An Leas-Chathaoirleach: It is a long-standing rule in the House that Senators can move an amendment, other than their own, only with somebody else’s permission. I do not know what happened in the case to which Senator Alex White referred earlier.

  Senator Alex White: Is it in Standing Orders?

[979]  An Leas-Chathaoirleach: It is a ruling of the Chair.

  Senator Alex White: But is it in Standing Orders?

  An Leas-Chathaoirleach: It is not. It is a long-standing rule of the House.

  Senator Alex White: We have Standing Orders. Either they regulate the procedures of the House or they do not.

  An Leas-Chathaoirleach: The rulings of the Chair accompany Standing Orders and have equal validity.

  Senator Shane Ross: On a point of order, if the Leas-Chathaoirleach is correct, can the amendment be moved on Report Stage?

  Senator Alex White: There could be a motion to recommit.

  Senator Liam Twomey: Can it be submitted on Report Stage in someone else’s name?

  An Leas-Chathaoirleach: I am sure somebody else can submit an amendment on Report Stage.

  Senator Shane Ross: We will do that, but let us give notice now. I intend to move such an amendment on Report Stage.

  Senator Eugene Regan: I will also support the amendment. It is a good amendment from the Government benches and from Senator Daly and we will resubmit it on Report Stage.

  Senator Denis O’Donovan: The Senators are being mischievous.

  Senator Alex White: We are not being silly.

  An Leas-Chathaoirleach: I have been informed by the Clerk that amendment No. 12 cannot be resubmitted on Report Stage.

  Senator Shane Ross: With the greatest respect, a Leas-Chathaoirligh, you have already ruled that it could be.

  An Leas-Chathaoirleach: That was the advice I had at the time.

  Senator Liam Twomey: Why?

  Senator Alex White: On a point of order, there has been enough cynicism, although not from the Chair at any time. Members on the far side have engaged in cynical manoeuvring. They have withdrawn their own amendments and utterly abused the procedures of this House in respect of this legislation. It is an absolute disgrace. The Leas-Chathaoirleach made a ruling on foot of what Senator Ross proposed. The Leas-Chathaoirleach is the only person in the Chair. No one else is in the Chair. He has made a ruling, just as he made a ruling that went against us a minute or two before, which we had to accept. It cannot be reversed on the basis of advice tendered a few minutes later.

  Senator Maurice Cummins: On a point of order, in stating a few minutes ago that the amendment could be resubmitted on Report Stage, the Leas-Chathaoirleach mentioned that the rulings of the Chair can supersede——

[980]  Senator John Paul Phelan: They are equal.

  Senator Maurice Cummins: They stand equally with the Standing Orders of the House. He has given the ruling.

  An Leas-Chathaoirleach: The rulings of the Chair accompany Standing Orders.

  Senator Maurice Cummins: Well——

  An Leas-Chathaoirleach: The amendment can be submitted but it may well be ruled out of order.

  Senator Feargal Quinn: On a point of order, the Leas-Chathaoirleach decided earlier that it was not possible to move an amendment without the permission of the originator, yet earlier in this Bill I moved an amendment put down by Senator Alex White, and I did so without his permission. Does that mean the Bill as a whole is no longer valid, as we are already in breach of Standing Orders? Either the Leas-Chathaoirleach is right or he is wrong. If he is correct in stating that an amendment cannot be moved without the permission of the proposer, I remind him that I did so earlier on, which suggests that the whole Bill is no longer valid.

  Senator Rónán Mullen: I am finding this intoxicating.

  Senator Liam Twomey: If the amendment cannot be pressed by us at the moment, on what basis can it not be submitted on Report Stage by Members of this side of the House? The amendment has been read by Members on this side and found to be a sensible change and we would like to submit it. I do not know what was the reason for its submission in the first place, as it has now been withdrawn, but clearly there is a consensus here that it is a good amendment. On what basis can we submit it on Report Stage?

  An Leas-Chathaoirleach: The Senator can submit the amendment on Report Stage.

  Senator Maurice Cummins: Will it be ruled in order? That is the next question.

  An Leas-Chathaoirleach: That will be a matter for the Cathaoirleach.

  Senator Liam Twomey: If it is acceptable for——

  An Leas-Chathaoirleach: When the amendment is submitted the Cathaoirleach will rule on it.

  Senator Maurice Cummins: Can the Leas-Chathaoirleach address the point made by Senator Quinn?

  Senator Eugene Regan: On a point of order, does the withdrawal of this amendment by the proposing Senator require the approval of the House? Is the amendment, on that basis, before the House?

  An Leas-Chathaoirleach: The amendment was not moved and, therefore, the question of withdrawal does not arise.

  Senator Eugene Regan: The decision to withdraw the amendment was voiced in the House.

  An Leas-Chathaoirleach: It is up to any person who puts down an amendment to withdraw it if he or she so wishes.

  Senator Eugene Regan: It was withdrawn without the approval of the House.

[981]  An Leas-Chathaoirleach: The amendment was not moved so the issue does not arise.

  Senator Maurice Cummins: The Senator withdrew it. Those are the words used by the proposer of the amendment. He said he was withdrawing the amendment.

  An Leas-Chathaoirleach: It was not moved.

  Senator Ivana Bacik: It is on the Order Paper.

  Senator Alex White: Is this a reflection of the attitude that will be taken on Report Stage, which would appear to be that because the amendment was not debated on Committee Stage, it cannot be taken on Report Stage? I see the Minister of State is sighing in his chair. This House is an important part of how business is done and if he is bored by it we are sorry.

  Deputy Conor Lenihan: I am not bored at all. I am intrigued.

  Senator Alex White: The point is I am concerned that what appear to be rulings are anticipating rulings intended for Report Stage. For example, the Leas-Chathaoirleach said this was never moved and then said it was not withdrawn.

  An Leas-Chathaoirleach: The Chair will decide on the amendment when it is submitted on Report Stage.

  Senator Shane Ross: It is submitted.

  Senator John Paul Phelan: On a point of order, who is entitled to move amendments? I understood that under the Standing Orders on Committee Stage any Senator can move an amendment and that only on Report Stage must the Senators whose names are attached to amendments be present.

  An Leas-Chathaoirleach: That is incorrect. The permission of the person who submitted the amendment must be given. In Senator Quinn’s case the Chair acted in good faith as it was thought that he had Senator Alex White’s permission.

  Senator Feargal Quinn: If I did not have permission I was unaware of the rules but the Leas Cathaoirleach accepted my moving the amendment at the time. Moving the amendment was either correct or incorrect. If it was incorrect we have been out of order today.

  An Leas-Chathaoirleach: That the Senator had Senator Alex White’s permission was based on his own integrity.

  Senator Feargal Quinn: I did not claim to have permission and I did not have permission at any point.

  An Leas-Chathaoirleach: I have brought it to the attention of the House that one needs the permission of the Senator whose name is on an amendment to move it.

  Senator Rónán Mullen: On a point of order, I understand Senator Quinn’s question is whether the fact that this has happened, regardless of the intention, renders void the Bill thereafter. I understand this is the point on which Senator Quinn seeks a ruling.

  An Leas-Chathaoirleach: I do not think that is a point of order. Did Senator Mullen wish to speak on section 15? Is section 15 agreed to?

[982]  Senator Maurice Cummins: On a point of order, what is the Cathaoirleach’s ruling on this? Can the Cathaoirleach clarify his ruling on Senator Quinn’s point?

  An Leas-Chathaoirleach: I have made it clear that the Chair was of the opinion that Senator Quinn was acting in good faith at the time and that he had permission, though he did not say so at the time.

  Senator Maurice Cummins: Whether the Chair was of that opinion or not, this is either correct or incorrect.

  An Leas-Chathaoirleach: It is incorrect.

  Senator Maurice Cummins: Does it then render the procedure of House that we adopted at the time incorrect? What are the implications of this on the Bill?

  An Leas-Chathaoirleach: There are no implications for the Bill.

  Senator Maurice Cummins: If we have not obeyed the procedural rules of the House on this Bill then there are implications for the Bill.

  An Leas-Chathaoirleach: There are no implications.

  Senator Denis O’Donovan: On a point of order, irrespective of whether Senator Quinn did something inappropriate regarding Standing Orders, the Leas-Chathaoirleach has ruled on this matter. No material advantage or disadvantage has been gained by Senator Quinn moving the amendment instead of Senator Alex White. Even if there was an advantage it would have been voted down so in no way——

  Senator Liam Twomey: The Senator can say that with confidence.

  Senator Alex White: Senator O’Donovan has let the cat out of the bag.

  Senator Ivana Bacik: On a point of order, if I understood what Senator O’Donovan said, he believes that if there had been a problem it would have been voted down. If I heard him correctly it exposes the farce of this entire procedure.

  Senator Liam Twomey: Senator O’Donovan is making a joke of this House.

  Senator Denis O’Donovan: I wish to clarify what I said. If there had been a vote called on it——

  Senator Liam Twomey: He is also making a joke of the whole procedure. He is making a mockery of what we are doing here because he said he would vote down the amendment anyway.

Amendment No. 12 not moved.

SECTION 15.

Question proposed: “That section 15 stand part of the Bill.”

  Senator Eugene Regan: We are opposing section 15 in light of the abuse of process we have seen.

Question put.

The Committee divided: Tá, 23; Níl, 18.

    Boyle, Dan.

    Brady, Martin.

    Butler, Larry.

    Callely, Ivor.

    Carty, John.

    Cassidy, Donie.

    Corrigan, Maria.

    Daly, Mark.

    Ellis, John.

    Feeney, Geraldine.

    Hanafin, John.

    Keaveney, Cecilia.

    Leyden, Terry.

    MacSharry, Marc.

    Ó Domhnaill, Brian.

    Ó Murchú, Labhrás.

    O’Brien, Francis.

    O’Donovan, Denis.

    O’Malley, Fiona.

    O’Sullivan, Ned.

    Ormonde, Ann.

    White, Mary M.

    Wilson, Diarmuid.

Níl

    Bacik, Ivana.

    Burke, Paddy.

    Buttimer, Jerry.

    Coffey, Paudie.

    Cummins, Maurice.

    Fitzgerald, Frances.

    Hannigan, Dominic.

    McCarthy, Michael.

    McFadden, Nicky.

    Mullen, Rónán.

    O’Reilly, Joe.

    Phelan, John Paul.

    Quinn, Feargal.

    Regan, Eugene.

    Ross, Shane.

    Ryan, Brendan.

    Twomey, Liam.

    White, Alex.

Tellers: Tá, Senators Fiona O’Malley and Diarmuid Wilson; Níl, Senators Maurice Cummins and Eugene Regan.

Question declared carried.

[983]Section 16 agreed to.

NEW SECTION.

  Senator Eugene Regan: I move amendment No. 12a.

In page 15, before section 17, to insert the following new section:

“17.—(1) (a) On the occasion of an application to the Court, an applicant may request the Court to certify that a premises to which a public house license or a theatre license is attached is a nightclub for the purposes of this Act and to issue a permit to that effect,

(b) an application made under paragraph (a) above shall be made not less than 14 days after the service of a notice by or on behalf of the applicant stating the applicant’s intention to apply for such a permit.

(2) (a) The Court shall not designate a nightclub permit to any premises under subsection (1) above unless it complies with the following additional conditions—

(i) the premises shall only operate for business between the hours of 10 p.m. and 4 a.m.,

(ii) an admission price shall be charged at a designated cash desk subsequent to passing a security desk and prior to entry into the premises and which operates a numbered [984]ticketing system which must be available for inspection by the Fire Services and/or the Gardaí Síochána,

(iii) the premises shall provide entertainment through music and dancing and shall have an area reserved solely for dancing which must consist not less than 20 per cent of the gross public area of the nightclub,

(iv) there shall be public liability insurance cover of a figure to be specified by the Minister in regulations attached to the premises,

(v) the premises shall have at least two security persons on front door security duty with an additional one security person inside the premises for every 100 patrons present,

(vi) the premises shall not admit any persons to the premises after the hour of 2.30 a.m.,

(b) without prejudice to paragraph (a)(i) above, the court may at its discretion attach to the issue of a nightclub permit the condition that the premises close at a time earlier that 4 a.m.,

(c) in making any such determination under paragraph (b) above the Court shall take into consideration the desirability of sequential closing in the immediate district of the premises in respect of which an application under subsection (1) is being made,

(d) the Court shall give a statement of its reasons for any determination made under paragraph (b) above.

(3) When granting a nightclub permit the Court, having regard to the opinion of a suitably qualified person, shall specify the maximum occupancy level for the premises to which the permit relates.

(4) (a) The holder of a nightclub permit shall cause such permit to be displayed in a conspicuous place on the premises to which it relates.

(b) Failure to comply with paragraph (a) shall be an offence and the holder of the nightclub permit who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding:

(i) €500 for a first offence;

(ii) €1,500 for a second or subsequent offence.

(5) A holder of a nightclub permit who permits the maximum occupancy level specified under subsection (3) above to be exceeded on any occasion shall be guilty of an offence and liable on summary conviction to a fine not exceeding:

(a) €3,000 for a first offence;

(b) €10,000 for a second or subsequent offence.

(6) The officer in charge of the Garda Síochána may object to the application and may appear and give evidence on the hearing of an application under this section.

(7) Every nightclub permit shall, unless sooner revoked under this section, remain in force until the next annual licensing district court for the licensing area.

[985](8) A Judge of the District Court may, on the application of the officer in charge of the Garda Síochána for the licensing area, at any time revoke a nightclub permit if he is satisfied that the holder of such permit has contravened any of the conditions attached to the granting of the nightclub permit.

(9) Whenever the Justice of the District Court shall refuse an application for a renewal of any permit under this section the applicant may lawfully appeal against such refusal to the Circuit Court and shall prosecute such appeal with due diligence, and the permit shall remain in effect until the first opportunity on which such an appeal could be heard by the Circuit Court and, if that Court shall so direct, for such further time (if any) as shall elapse before the final determination of such appeal.”.

We have debated this matter and I am pressing the amendment.

Amendment put.

The Committee divided: Tá, 17; Níl, 23.

    Bacik, Ivana.

    Burke, Paddy.

    Buttimer, Jerry.

    Coffey, Paudie.

    Cummins, Maurice.

    Fitzgerald, Frances.

    Hannigan, Dominic.

    McFadden, Nicky.

    Mullen, Rónán.

    O’Reilly, Joe.

    Phelan, John Paul.

    Quinn, Feargal.

    Regan, Eugene.

    Ross, Shane.

    Ryan, Brendan.

    Twomey, Liam.

    White, Alex.

Níl

    Boyle, Dan.

    Brady, Martin.

    Butler, Larry.

    Callely, Ivor.

    Carty, John.

    Cassidy, Donie.

    Corrigan, Maria.

    Daly, Mark.

    Ellis, John.

    Feeney, Geraldine.

    Hanafin, John.

    Keaveney, Cecilia.

    Leyden, Terry.

    MacSharry, Marc.

    Ó Domhnaill, Brian.

    Ó Murchú, Labhrás.

    O’Brien, Francis.

    O’Donovan, Denis.

    O’Malley, Fiona.

    O’Sullivan, Ned.

    Ormonde, Ann.

    White, Mary M.

    Wilson, Diarmuid.

Tellers: Tá, Senators Maurice Cummins and Eugene Regan; Níl, Senators Fiona O’Malley and Diarmuid Wilson.

Amendment declared lost.

Sections 17 and 18 agreed to.

SECTION 19.

Question proposed: “That section 19 stand part of the Bill.”

  Senator Ivana Bacik: I have not tabled an amendment to section 19. My issue is with the thrust of the section as it stands. It is the section that aims to insert two new sections, sections 8A and 8B, into the Criminal Justice (Public Order) Act 1994. I am concerned about inserting [986]new offences and new powers for the Garda into an Act that is already quite draconian in its content.

While I have a concern about that, I am particularly concerned about what would be the new section 8A of the Criminal Justice (Public Order) Act which would create essentially a new offence of failure to give an explanation to a garda where requested to do so. It provides that where a garda finds somebody with alcohol in a situation where he or she believes the person is causing trouble, annoyance or nuisance to another person, the garda may seek an explanation as to any of the matters to which his or her belief relates and if the person refuses to comply with the request for information, he or she may be guilty of an offence.

My concern is that Ireland has already been found in breach of the Convention on Human Rights by the Court of Human Rights, in the cases of Heaney and McGuinness v. Ireland and Quinn v. Ireland, in the provision of the Offences Against the State Act that makes it an offence to fail to answer questions where being questioned by a garda in the course of detention. The Court of Human Rights stated that was in breach of due process rights, and so on.

There are other provisions where it is an offence to fail to give name and address to a garda, but this purported section 8A goes beyond that in making it an offence to fail to give an explanation. I am concerned that this would be in breach of the Convention on Human Rights. Has the Attorney General advised on this and in the light of the concern I raised, is the Minister willing to review the operation of the section until the issue of compliance with the convention is reconsidered?

This is part of an unfortunate trend where we are seeing an ever increasing number of offences being created. There is already a section 8 offence in the Criminal Justice (Public Order) Act 1994 of failure to comply with the direction of a garda. That is quite a broad offence. What we are seeing with this provision, section 8A, is an even wider cover-all offence, which gives greater power to the Garda. This gives rise to fear of abuse and with this problem, on my reading of it, it makes it an offence to fail to give an explanation to a garda. I ask the Minister of State’s views on that.

4 o’clock

  Deputy Conor Lenihan: The Attorney General put a great deal of thought into this section at the drafting phase, for the good legal and civil liberties reasons Senator Bacik outlined. He found it appropriate to use in section 48A — the additional power about which Senator Bacik spoke — the phrase “reasonable cause”. The garda involved can only act on this new power where he or she has a reasonable cause to believe that there are people who are under age drinking alcohol in a situation that is clearly illegal. That has been carefully drafted and on the advice of the Attorney General it is fit for purpose and in compliance with the Convention on Human Rights. The Attorney General sees this new power as fit for purpose but trammelled by particular requirements on reasonable cause.

A garda must have reasonable grounds for believing that section 37A or 8A applies before exercising the entry powers under section 37B or 8B, as the case may be. It may not become clear until after entry has been completed whether it is section 37A, that is, a person is under 18, or section 8A which applies. The entry provisions are framed to deal with that by requiring that the garda be satisfied before entry that one or other, or both sections, are applicable.

  Senator Ivana Bacik: On a point of order, I am looking at section 19 which creates new sections 8A and 8B, and I do not see the text to which the Minister of State refers.

  Deputy Conor Lenihan: I refer to section 48A. Senator Bacik spoke about an additional power being conferred on the Garda Síochána. The Senator is correct. An additional power is [987]now being given to an individual member of the force to enter into a family home, in effect, or a domestic dwelling.

  Senator Ivana Bacik: I refer to a different provision.

  Deputy Conor Lenihan: Senator Bacik did not specify the extra power that the Garda received. As I understand it, I am responding to a concern Senator Bacik has on civil liberties grounds in connection with this additional power being given to the Garda under section 48A to enter a home in limited circumstances where reasonable cause is the issue.

  Senator Ivana Bacik: I am not speaking of the Garda’s power to enter homes. I did express a broad concern about civil liberties, but my more specific issue relates to a provision, which would be a new section 8A of the 1994 Act but which is in section 19 of the Bill, under Part 3, Amendment of Criminal Justice (Public Order) Act 1994, which is, the power to direct persons who are in possession of intoxicating substances, and so on.

  Deputy Conor Lenihan: This is the power to take away the cans or bottles of alcohol in a situation.

  Senator Alex White: Senator Bacik is seeking an explanation.

  Deputy Conor Lenihan: That is the other power.

  Senator Ivana Bacik: That is one of the new powers but there is also——

  Deputy Conor Lenihan: Does Senator Bacik think that is draconian or somehow in breach of civil liberties? That is why I am rather puzzled. I would have thought, coming from Senator Bacik’s strong perspective of civil liberties, the issue of entering a house would be more important than a garda, anticipating an element of urban menace, deciding that he or she wishes to remove the can of alcohol.

  Senator Alex White: On a point of order, in order that we can all sing from the same hymn sheet, to what provision in the Bill does the Minister of State refer?

  An Leas-Chathaoirleach: That is not a point of order.

  Senator Alex White: If it is not, is there to be any order in this debate? I am on my feet. The Senator raised an issue——

  An Leas-Chathaoirleach: Senator Bacik raised the issue with the Minister of State and it is up to him to answer the question.

  Senator Alex White: ——and the Minister of State answered a different one and he does not even know which question he is answering.

  An Leas-Chathaoirleach: I do not have any control over what the Minister of State says.

  Senator Eugene Regan: The Minister of State is rubbishing the question.

  Senator Ivana Bacik: I raised a valid point of concern in a constructive way, I hope, on a section of the Bill which the Leas-Chathaoirleach called, namely, section 19. This purports to insert a new section 8A into the Amendment of Criminal Justice (Public Order) Act 1994. This section would create an offence of failing to give an explanation to a garda. Will the Minister of State specifically address the concern I have raised? Section 8A(5) states: “It shall be an [988]offence for any person, without lawful authority or reasonable excuse, to fail to comply with a direction given by the member under subparagraph (iii) or (iv) of paragraph (b) of subsection (2).”. This is a direction requiring explanation. This raises a concern as there have been cases successfully taken against Ireland on a similar provision. I am sorry we do not have more time to review this and to establish whether I am correct. There is a concern this provision might fall in breach of the European Convention on Human Rights on the same grounds as those in the Heaney and McGuinness judgment and the Quinn judgment. These cases found it was in breach of the convention to make it an offence to fail to answer questions in a broad sense. I may be wrong but I am simply raising a concern.

  Deputy Conor Lenihan: The Senator may be right, but I am reliant on the advice of the Attorney General, who deemed this part to be constitutional. I apologise if there was confusion between section 48A and section 19 8A.

  Senator Ivana Bacik: There is no section 48A, we are discussing Section 19 8A.

  Deputy Conor Lenihan: We believe this part is in conformity with the Constitution. That is the best advice we have received from the Attorney General. I emphasise, in order for Members and others outside the House to be clear about the discussion, that rather than consider the theoretical legal implications of a measure, we are discussing the powers conferred on the Garda to make assumptions about why a person would refuse to be identified when asked simple questions about whether he or she is of age to be allowed to drink intoxicating liquor. This is a fair assumption and a fair power to pass on to the Garda. If someone is drinking in a public place and carrying cans, and such a person appears to the officer to be under-age, then the officer has a reasonable right to inquire of the age of such a person. The provision allows for this and does not represent a complicated change to life as we know it. However, I appreciate the Senator’s concern on the human rights issue.

  Senator Ivana Bacik: The Minister of State has misinterpreted my remarks. Section 8A does not relate to underage persons. Section 19 8A(1)(a) states, “...a person is in a relevant place alone or accompanied by other persons...” which appears to apply to any person about whom a garda has a concern because such a person holds alcohol in a bottle or container and is causing annoyance or a nuisance to other persons. Senator Alex White made the point already that we need to ensure the Minister of State addresses the questions raised.

  Senator Eugene Regan: The Minister of State is not even listening to the Senator.

  Senator Ivana Bacik: I am not sure the Minster of State is addressing the specific question I raised regarding section 19.

  Senator Eugene Regan: The Minister of State has a tendency to dumb down every discussion and rubbish every question. We wish to ensure that the legislation we adopt is constitutional and in accordance with the general principles enshrined therein. To simply brush aside a valid question is not appropriate. The question raised should be answered rather than discussing the general policy objectives with which we all concur.

  Deputy Conor Lenihan: I can answer only as best I can, short of allowing Senators to write my replies and utter them. This section applies to under-age and over-age people. It allows the Garda to anticipate the possibility of a public order offence. The purpose of this section is precisely so that the gardaí can anticipate such offences using their eyes, invaluable experience and judgment to form a clear view that a person will behave in a manner contrary to public [989]order or create a breach of the peace. This is a positive measure from a law and order point of view because while the Garda has existing powers in this area, the measure allows it to anticipate the possible perpetration of an offence and act accordingly. I have no problem with this measure, nor does the Attorney General. However, I take on board the remarks of Senator Bacik regarding the civil liberties implications. I can only rely on the advice of the Attorney General on this matter which indicates that the measure is constitutional.

  Senator Ivana Bacik: We are passing into law a novel offence with very little debate. I am concerned by the Minister of State’s response, as he stated this measure will allow the Garda to anticipate the commission of public order offences. We have a presumption of innocence under the Constitution, on which the criminal justice system is premised. It would be a matter of some concern if the Garda could arrest people in anticipation of such people committing an offence. We have given powers to the Garda to prevent crime, which serves everybody’s interests. However, this measure goes beyond what is normally permitted in the interests of the prevention of crime.

  Deputy Conor Lenihan: I have provided as complete an answer as I can offer at this stage. I am not refusing to answer questions, but I have offered as comprehensive a reply as I can in the circumstances.

  Senator Liam Twomey: The use of the term “to anticipate” is interesting. Does this allow for the provision to be used on the grounds of the manner in which a person looks at a garda? Is such an action grounds for a garda anticipating an offence? This matter should be clarified.

  Deputy Conor Lenihan: Yesterday on Second Stage I remarked on the concept of pre-emption. I know the Senator is aware of such concepts as they apply both legally and otherwise. It does not require further explanation.

Question put and agreed to.

Sections 20 to 22, inclusive, agreed to.

Schedules 1 and 2 agreed to.

Title agreed to.

Bill reported without amendment.

  An Leas-Chathaoirleach: When is it proposed to take Report Stage?

  Senator Donie Cassidy: Today at 4.50 p.m.

Sitting suspended at 4.15. p.m. and resumed at 4.50 p.m.