| Mr.
O'Donoghue: The last thing I want to do is to stop
people enjoying themselves in a reasonable way. That is
not the intent of the legislation. At the same time I
have stressed the need to be responsible and sensible in
relation to the Bill. Senator Connor has a point. Often
a festival in a rural town may run for just a weekend.
The festival may be on Friday and Saturday but publicans
are obliged to take another exemption - for Sunday or
Thursday - when they may not have as much business. That
said, I do not want area exemption orders to be used as a
way of circumventing the requirement for a special
exemption order. If I allowed that I would be saying
there is no great requirement for a public dance licence
and all the stringent conditions attached to it.
Senator Moylan
referred to 21st birthday parties. I do not think that a
young person of 21 will have a drinking party in a pub -
at least I hope not - for his or her 21st birthday. I do
not think they would want to. Young people want music and
dancing and the music would be loud as possible as far as
I am aware. I am conscious of Senator Connor's point and
would like to look at the possibility of allocating
exemptions in six groups of two.
Mr. Connor:
Or groups of three.
Mr.
O'Donoghue: My objective is to facilitate the House
and Senator Connor in a reasonable way in order to
benefit the greater good. Let us have another look and
return to this on Report Stage.
Mr.
Costello: These related amendments refer to the 12
area exemptions to be allowed in the course of a year.
What the Minister has said is a movement in the right
direction but if we are to allow a public house to apply
for 12 area exemptions for a festival or whatever
function that is appropriate, it seems terribly
restrictive to say they can only be applied for in groups
of three. There should be some flexibility in relation to
the number of days for which the area exemption would be
allowed, either two by six or whatever, to allow the
courts to decide on the matter. An application will have
to be made anyway and it should be a matter for the
courts to decide what is appropriate. I would have
thought that the legislation did not need to specify in
this area other than to give some guidelines.
Mr.
O'Donoghue: As a matter of courtesy to Senator
Costello, I acknowledge that he has put down an amendment
also in relation to this matter. I have indicated to
Senator Connor, in regard to his amendment and indeed
that of Senator Costello, that we will examine the
possibility of being more flexible in this respect. I
want to give the matter more consideration and we will
come back to it on Report Stage next week.
Amendment, by
leave, withdrawn.
Amendments Nos.
24 and 25 not moved.
Section 9
agreed to.
Sections 10 and
11 agreed to.
Amendment No.
26 not moved.
Section 12
agreed to.
SECTION 13.
Mr.
Costello: I move amendment No. 27:
In page 11,
line 45, to delete "shall" and substitute
"may".
It is with some
trepidation that I move this amendment because I
understand what the Minister is trying to do, that is,
impose a mandatory closure of a premises if an under age
person is found to have been consuming intoxicating
liquor on the premises. It is a general principle of
criminal law that mandatory sentences are not imposed
"cold"; they have to be taken in context. The
offence may have happened for the first time, yet a
mandatory sentence is being imposed. We are really
talking about habitual offenders. If somebody is known to
have committed this offence the full rigours of the law
should apply to them, and that should be reflected in the
legislation. Including the word "shall" rather
than "may" is probably not that helpful. It
would be better to leave it to the discretion of the
courts as to how the offence will be punished, rather
than providing for the mandatory closing of a premises
for a first offence.
There may be
many cases where people get through the process by a nod
or a wink or whatever. They may be habitual offenders in
this regard and they may be able to escape the net. It
would be better to apply the full rigours of the law to
people who are shown to be flouting it.
Mr. Connor: I
agree with Senator Costello. These matters should always
be left to the discretion of the court hearing the case.
I do not agree with making it a form of edict, by saying
that it shall be rather than it may be done. I do not
agree with it in that context. I have little to add to
what Senator Costello said, other than to say that there
should always be discretion in relation to these matters
and the wording of the Bill should be seen to be open to
the discretion of the courts.
Mr. Caffrey:
I agree with Senators Costello and Connor in relation
to mandatory sentencing. We all know that we must provide
for special circumstances and to impose a mandatory
restriction is taking it too far in this context.
Mr. Quinn: We
are now coming to the part of the Bill that concerns
people most, that is the whole question of under age
drinking. We have to take a firm stand here and do
whatever can be done to discourage anyone who is tempted
knowingly to serve people who are under age. We know that
under age drinking is going on.
The Minister
has thought out this aspect very well. When I first
looked at it I thought it was a very heavy weapon to use
but what the Minister has done seems to be acceptable. He
has given the power to the courts to decide and he is
also limiting their powers, to a certain extent, by
including "not exceeding seven days in respect of a
first offence". He is also limiting their power in
another way which I have not seen before. In addition to
any penalty imposed, an order will be made for the
closure of the premises concerned or any part thereof.
The Minister is giving the judge a lot of flexibility and
I cannot oppose that. I said earlier today that we should
allow the courts make decisions in their own area rather
than have the Minister decide everything for all
offences.
On balance this
is acceptable. It says "shall" rather than
"may" and I understand the reason Senator
Costello is making the case. That would give more
flexibility to the judge rather than the other way
around. The judge has the flexibility to close part or
all of the premises but not for more than seven days on
the first offence. On balance we need a strong hand if we
are going to provide for tight controls, to the extent of
scaring those who may run foul of this measure.
In my own
business some years ago, we found the danger of serving
alcohol in a supermarket such that we were afraid of
breaking the law. We upped the age limit to 21 years and
would not serve anyone unless they could prove they were
21 years old. We have now upped it to 25 years because
some 16 year old males with a beard can look a lot older
and some efforts were made to find people who were
breaking the law. The words we use in our sign are,
"If you're lucky enough to look under the age of 25,
please have your ID with you". It is a clever and
rather subtle way of getting around the issue.
The onus of
responsibility is definitely on the seller of alcohol to
make sure that alcohol is not sold to somebody who is
under age. On balance the Minister has probably got it
right in that it is fairly tough. I have no problem with
giving more freedom to the judge in this case. This is a
strong weapon in the judge's hands and it should scare
the living daylights out of anybody who is ever tempted
to take a weak attitude towards the sale of alcohol to
people who are under age.
Mr. Moylan: This
is a very important section. There is a real problem with
under age drinking and we see the results of that among
our young people. I am involved with young people in
sport but we often have a problem where, as a result of
drink, no matches are held on Sundays. Under age drinking
also affects church and even work attendance.
I would be
concerned about the temporary closure of a premises in
the event of false ID being shown because it is often
difficult for the publican. If an ID is shown, there is a
tendency to serve them. Unfortunately, the IDs can be
false. This is an important section but it should be
examined in more detail.
Dr. Henry: Senator Costello was anxious that the word
"shall" should be replaced by the word
"may". It is probably better to leave the
section the way it is worded by the Minister. Judges are
given a great deal of discretion. The section provides
that the closure of the premises concerned or a part
thereof shall be for a period not exceeding seven days in
respect of the first such offence. Such a premises could
be closed for half a day or for whatever number of days a
judge decides. A minor reprimand could be given to ensure
that if a publican is taken in by false identification
papers, he or she will be more careful the next time.
Legislation
such as this has been in place in America for decades. It
has been important in ensuring young people have not been
served intoxicating drink in what we would describe as
bars. I do not know why anyone would want to go to an
American bar where one could break one's neck without any
drink taken having to make one's way in the dark even at
noon.
The Minister is
right in what he has provided in this section. We may
have been slightly amused by Senator Ridge's descriptions
of what happens when teenagers have consumed intoxicating
liquor. In the case of an enormous number of teenage
pregnancies, teenagers will say drink was involved. We
know it is a factor in many traffic accidents. It is
better that the section remains as it is worded.
Senator Quinn
must have had for a few years that sign displayed in his
premises stating that people under the age of 25 will not
be sold alcoholic drink and it has not resulted in his
business going to the wall. If such a sign was displayed
in other premises, I am sure it would not result in their
going to the wall. It is worthwhile retaining the wording
of the section.
Mr. Bohan: I
have little to add to what I said on this section on
Second Stage. I am concerned about the provision that a
court could impose a mandatory seven day closure of a
premises for a breach of the law in this respect. The
publicans I represent, and I can speak for publicans
throughout the country, would have no time for a publican
who serves alcohol to under age customers. It is
extremely difficult for a publican to determine whether
girls especially are aged 17 and half, 18 or 19. Most
publicans would be happy if the imposition of a penalty
for a breach of law in this area was left to the
discretion of the judge rather than a court imposing a
mandatory seven day closure of a premises.
The Garda know
the houses that abuse the law by serving alcoholic drinks
to under age persons. If a garda can prove that in
respect of a public house, I would have no problem with a
penalty imposing the closure of such a premises. In a
case where six, seven or eight people are drinking at a
table in a pub where there are 200 to 300 on a Saturday
night and one person at that table orders drinks for the
group, it is impossible for the person serving to
distinguish which of those people is aged 17, 18 or 19.
Many fictitious
identity cards are used. There is no national identity
card. If there was, it would solve the problem but it
will be some time before the State issues such a card. As
I said on Second Stage, I know of a case where the owner
of a premises in which a function was being held, which
no one under the age of 19 was allowed enter, had two
people on the door checking ID. A bit of a fracas broke
out on the premises and a girl was brought to the local
Garda station. She had an ID card stating she was 19
years of age and the gardaí involved admitted she looked
19 years old or more, but it transpired she was only 16
years old. That highlights the dreadful pitfalls in this
area for the licensed trade.
I ask that the
imposition of a penalty for a breach of the law in this
respect be left to the discretion of the court. I do not
deny that some pubs serve alcoholic drink to those who
are under age. Senator Quinn mentioned the abuse of the
law in this respect in a premises in the Malahide area of
which I am aware. I do not approve of it and neither does
my association. While there are black sheep in the trade
who should be dealt with, 99.5% of publicans in the
country do not tolerate under age drinking.
This penalty is
a draconian punishment to inflict on somebody who
unknowingly serves alcoholic drink to a person who is six
months under the age of 18. In such a case a garda would
be able to prove to a court, without any shadow of doubt,
that a particular house was abusing the law in this area.
A number of such houses are well known and judges have
threatened not to renew their licences in recent years.
Those houses should be closed permanently. A publican who
is doing his best to run a good house and not serve
anyone under age can have his premises automatically
closed for seven days if, through some misfortune, a
person who is under age slips through the net and an
ambitious sergeant or inspector discovers that person on
the premises.
I ask the
Minister to reconsider this provision when the Bill is
taken in the lower House and to leave the automatic seven
day closure of a premises for such a breach to the
discretion of the court and allow it to determine if a
publican is guilty. If the law in this area is abused, my
association would have no time for that type of
operation. It is draconian to close a premises for seven
days for a first offence in this respect and for 14 days
for a second offence, but if the law is being abused on
an ongoing basis I have no problem with the imposition of
such a penalty.
This is a good
Bill. I congratulate the Minister and his advisers on the
work they put into it. It seeks to cater for everyone.
Senator Costello referred to Sunday night closing.
An
Cathaoirleach: The Senator must stick to the
amendment before us.
Mr. Bohan: I
would favour a closing time of 11.30 p.m. rather than
12.30 a.m. With regard to the imposition of the mandatory
closure of a pub for a breach of the law in this respect,
I ask the Minister to reconsider that penalty and to
leave the imposition of a penalty to the discretion of
the court.
Mr. J.
Cregan: I support the sentiments expressed by Senator
Bohan and others. It is necessary to change the law to
ensure the scourge of under age drinking is dealt with
properly as there have been difficulties and
technicalities in terms of reasonable doubt. People
knowingly sold drink to under age youths and got away
with it. I have no sympathy for those who knowingly
continue to do so. It is only right and proper they
should be penalised where it hurts them most, in their
pockets, by the imposition of a temporary closure of
their premises for seven days.
There is
reasonable doubt that a decent and genuine publican who
is running his business properly could unknowingly serve
an under age youth and his premises could be temporarily
closed for seven days. The fact that the imposition of
such a closure is mandatory would make it extremely
difficult for a judge in a court of law to have
discretion.
Some people
will attempt to use fake IDs or other means to get a
drink on a licensed premises by, for example, asking
someone who is not under age to purchase it. If that
happens unknowingly to a publican, it is very harsh that
such a publican's premises could be temporarily closed.
It would be preferable if there was a system whereby due
process took place and such a publican could go to court
and prove beyond reasonable doubt that he or she
unknowingly served alcoholic drink to an under age
person. We must also remember that the imposition of such
a penalty will not only affect the publican but the staff
who may be out of work for seven days. That is another
factor we should consider. As other Senators have said,
this issue needs to be looked at. This problem will arise
occasionally and the penalty will be very severe on
publicans that are caught in that position.
Mr.
O'Donoghue: It is significant what can be achieved by
changing a single word. Depending on who utters it, the
whole world can be changed by a single word. The effect
of the amendment proposed here would be to kick away what
I regard as not just a significant strengthening but a
desirable one in tackling the under age drinking problem
by targeting those who engage in this trade. I assume
that most Members would support strong sanctions against
those who engage in a criminally responsible act.
The report of
the sub-committee of the Oireachtas Joint Committee on
Justice, Equality and Women's Rights made specific
reference to the problem of under age drinking. It called
for stiffer penalties, including increased fines and the
temporary closure of premises. All of these suggestions
have been taken on board in the Bill. The granting and
renewal of a liquor licence is on the basis that the
person is of sound character, otherwise he or she would
not have received a licence in the first place or
continue to hold one.
The amendment
may wish to protect those who make a mistake. I have no
doubt that that is its intention. The reality is that
licensees cannot use as a defence against their actions
or omissions the excuse that they made a mistake.
Otherwise the question will arise, "When do they
stop making mistakes?" If this provision appears
tough then it is meant to be so. The message needs to be
got across that supplying liquor to under age persons is
unacceptable in any circumstances. The message that
should go out from this House to licence holders is that
they should ask for proof of age if they are in any doubt
about a young person. That is the best defence open to
the licensee.
The amendment
would have the effect of diluting the strength of section
13. It would lead to a situation where the section would
not operate to any particular effect. That could defeat
the purpose of the section and it would depart from the
policy suggested by the Oireachtas joint committee and
endorsed by the Government.
The present law
under which a person may lose a licence is largely
inoperable because it is draconian. The provision in the
Bill would be a workable solution. That much may not be
said about the amendment and I do not think it can be
supported. I will illustrate precisely what I mean. If it
were the case that every person charged with this offence
could go into a court and say that the premises was
crowded on the night in question, then this section would
not be worth the paper upon which it is written. I accept
and admit that this provision is the toughest legislative
provision that has been brought into force against the
scourge of under age drinking in our society since the
foundation of the State. This was done for a very good
reason. Under age drinking is a serious problem that is
growing, not slowing down or dissipating, and it must be
tackled. The easiest thing for me to do would be to come
here and pay lip service to the problem. If I accepted
this amendment I would be doing that.
There is a
national identity card scheme in operation which I
introduced in April 1999.
Mr. Connor:
It is not working.
Mr.
O'Donoghue: At that time I stated that it was
important for people to apply for the card and that
publicans and anyone involved in the supply and sale of
intoxicating liquor should get used to asking for the
card. If a licensee has any doubt about a young person's
age I would strongly advise them to ask for an ID card.
If they do not have a card then the licensee should not
serve them.
I accept that
this legislation is tough. I am not saying it is not. In
coming to a determination regarding the length of the
closure it is specified quite clearly at section 13(3):
In
determining the duration of a temporary closure under
the Court may seek from a member of the Garda
Síochána involved in the investigation of the
offence a report on the circumstances in which it was
committed and any other information which the Court
may consider to be of assistance to it in dealing
with the case.
The court takes
into account the circumstances under which the sale to
the young person took place. I have been extremely
careful to ensure that there is no minimum period which
the court is bound to impose by way of closure. It could
be an hour, one day, three days or seven days.
A minority of
people are involved in the sale and supply of
intoxicating liquor who have no compunction about serving
children. This practice must stop. It will never be
prevented entirely but it is incumbent on the Legislature
at this period in our history to do what is necessary and
right by young people. Parents of teenagers all around
the country are horrified at the prospect of their
children coming home helplessly drunk on the night the
junior certificate results are announced. It is happening
before our eyes. There is a duty on the Legislature to
tackle this problem. This provision is unyielding and
uncompromising. It will not be changed and I do not say
that with any degree of smugness.
Mr.
Costello: The Minister has been very convincing and
trenchant in the views he expressed. It is not often that
I would side with the vintners in putting an amendment
forward. I introduced this amendment with some degree of
trepidation. I have always espoused the principle that we
should not have mandatory sentences because they make bad
law. They create more problems than they resolve. Once a
judicial process is in place then that is the way to deal
with this matter.
We have many
laws on the Statute Book but questions arise about how
they will be implemented. There is a context in which
drinking takes place. Guinness is a major of young
people's sports, from surfing to Gaelic football and
soccer. That is allowed with impunity. Other people have
responsibilities in this area.
We have an
epidemic of people drinking in public parks. The law is
not being implemented either by the local authorities who
are responsible for the regulations or the gardaí within
whose jurisdiction this drinking takes place.
Off-licences are quite clearly selling intoxicating
liquor to young people who then consume it.
I am aware of
clusters of public houses in the city where young people
are served. I agree with the PTAA's proposal for the
Minister to establish a special unit to deal with the
public houses that have been flouting the law with
impunity. When young people get their junior certificate
results they know which public houses to go to. I am
concerned that the Minister is just focusing on public
houses in this provision. It covers off-licences to a
degree. The pub is the only place where a young person
under 18 years of age can be found, perhaps in a group of
people, with a pint in their hand. I would like to see
this provision broadened so that we do not have one area
of prescription. The other areas I talked about are
neither properly regulated nor policed. I have no doubt
this will not be properly policed and I would like to see
the Minister focusing on the areas which can be
identified. A positive statement to the effect that there
will be a proposal to set up a special unit within the
Garda Síochána to police the abuse of alcohol and
prevent under age drinking would be worthwhile.
Dr. Henry: I agree with the Minister in sticking with what he has
done. He correctly referred to the situation where we see
drunken junior certificate students at the top of Grafton
Street. I do not know where they get alcohol, except in
pubs-----
Mr. Bohan:
In supermarkets.
Dr. Henry: -----because there are no off-licences there from which
to purchase drink. It is important to remember that
Professor Anthony Clare has frequently written that we
talk continuously about the drug problem, vis-à-vis Ecstasy,
heroin and so on, but he said that the abuse of alcohol
by teenagers is a far greater problem. He deals with
alcohol abuse in St. Patrick's Institution far more
frequently than with hard drugs.
The Americans
have managed to recognise people's age by employing more
staff. This helps in that those selling alcohol and
serving it can take a good look at the person who orders
drinks for a group of people and those who will consume
it. The Minister is right to stick with this. There is
huge flexibility here. The judge can decide to close a
pub from 10 a.m. to 11 a.m. and so on.
Mr. Caffrey:
It is obvious the Minister will not be swayed on this
amendment even with the promptings from the Government
side. On a point of clarification, there is confusion on
mandatory closure. We assume seven days is the maximum
imposition. The fact that the District Court has
discretion to impose a lesser mandatory sentence or
punishment is acceptable in so far as the Minister will
not move on the major issue of the mandatory question. We
agree that publicans who disregard this principle should
be punished.
Senator Bohan
made an important point about loss of business. If the
ultimate sanction were imposed, a publican, in losing
trade for seven days, would effectively lose half his
business because his customers would not wait for him to
reopen. They would have gone elsewhere and many of them
would not return. It is an extreme sanction and we must
recognise that the District Court has discretion to
impose a lesser mandatory punishment.
Mr. Moylan:
I compliment the Minister and it is great to see him
standing firm on this section. Reference was made to
young people doing the junior certificate and the
problems associated with them regarding alcohol. Children
are drinking much younger than those doing their junior
certificate and they are able to get beer. There is a
problem in respect of off-licences.
I would like
the Minister to comment on the penalty on young people
using false ID to purchase alcohol in a premises. Tied
into this, there must also be a deterrent on those who do
so. The problem of publicans selling alcohol to young
people has been taken in hand, but there must be a
deterrent in respect of young people who go out with
false ID with the sole aim of purchasing alcohol.
Mr.
O'Donoghue: All that has to be said has been said,
with a few exceptions. I will try to reply briefly. On
the question of identity cards and young people using
forged cards, the discretion to introduce the cards was
first provided for in the Intoxicating Liquor Act, 1988.
The Minister for Justice was given the power under that
legislation to introduce, by way of regulation, a system
of national identity cards on a discretionary basis. That
power was not exercised until I did so last year when I
gave the advice that those involved in the drinks
industry should get used to asking young people for ID
cards. If that did not happen, with all due respect to
everybody, it is not my fault, although I must admit,
accept and stress that I am satisfied the vast majority
of those involved in the drinks industry do not want to
supply young people with drink and do not do so. That
might explain why there was not a great take-up in terms
of applying for the ID cards. The vast majority of people
do not become engaged in supplying drink to young people
anyway.
The position is
that a young person can go to a Garda station, fill out a
form, the form is sent to the Phoenix Park, Dublin, and
in so far as it can be fault proof, the details on the
card, including the photograph of the young person, are
sent back to the Garda station. Obviously, the young
person will arrive at the station with his birth
certificate and photograph. I cannot make it mandatory on
people to have ID cards. Why should I make it mandatory
on a person, for example, of 16 or 17 years of age to
have an ID card if he-she has no intention of seeking
alcohol? I do not think a young person should be
penalised or obliged in that way. Having pointed that
out, in reply to Senator Moylan, if a forgery occurs, the
person concerned will be subjected to serious penalties.
Abuse of the ID card attracts a fine of up to £1,000 or
imprisonment for a term not exceeding 12 months, or both.
This is to prevent forgery of the cards, which,
incidentally, is an offence under the 1988 Act. However,
the scheme was not introduced until last year when I
activated the section in question.
The cards are
not so easy to forge. There are security features which
includes a hologram that is incorporated into their
design and, obviously, that is a major security feature.
It is obvious that if a person over the age of 18 looks
younger and he wishes to purchase alcohol, he should get
a card. It is straightforward. There is no need for
anybody under the age of 18 to get an ID card because he
should not be seeking alcohol anyway. For the person
supplying alcohol the situation is very clear. One should
make certain that if there is any doubt about a person,
the ID card should be produced. If it is not produced and
the doubt remains, my strong advice is not to serve him.
On the issue of
enforcement, a matter referred to by Senator Costello, I
indicated at the publication of the Bill that hand in
hand with the relaxation of the opening hours, greater
ease of access to the trade and other liberalising
measures, there would be a crack-down on abuses of the
law. On enactment of this legislation, I will be asking
the Garda Commissioner to pursue vigorously those who
persistently flout the law, particularly those who engage
in the criminally irresponsible trade of supplying
intoxicating liquor to persons under age.
Senator Henry
is correct in that there is absolutely no doubt that
alcohol is unquestionably a far greater threat in terms
of the quantity of young people abusing it than
controlled substances or illegal drugs. To dilute this
legislation in the manner suggested would result in
letting down the parents of teenagers. There is no easy
way to do this - either we tackle it head on with
legislation or we forget about it. Dilution of this
measure in the manner suggested would render the
provision inoperable as it could not be applied with any
confidence.
I am convinced
that the section as drafted will be a major weapon in the
fight against under age drinking. It will not eliminate
the practice. Other factors, such as education and
parental responsibility, must also be taken into account.
In the final analysis, it is important that we attempt to
cut off the supply at source. Let us see how it works. My
view is that it will be a significant weapon in the fight
against under age-drinking.
An
Leas-Chathaoirleach: Is the amendment being pressed?
Mr.
Costello: No, but I may re-enter it on Report Stage.
Amendment, by
leave, withdrawn.
Government
amendment No. 28:
In page 13,
line 9, to delete "during the period of closure
under the order" and substitute "by reason
of the order during the period of closure under
it".
Mr.
O'Donoghue: I am proposing a minor amendment to
subsection (8) of the new section 36A of the Intoxicating
Liquor Act, 1988, as inserted by section 13 of the Bill
to clarify the position relating to the protection of
persons employed in the licensed premises that is the
subject of a temporary closure order. The amendment makes
it clear that by reason of the order during the period of
closure under it the employee must not be disadvantaged
in his or her employment. I recommend the amendment to
the House.
Amendment
agreed to.
Government
amendment No. 29:
In page 13,
line 14, to delete "Workers" and substitute
"Worker".
Mr.
O'Donoghue: This amendment is intended to reflect in
full the title of the legislation referred to in
subsection (9) of the new section 36A of the 1988 Act. I
recommend the amendment to the House.
Amendment
agreed to.
Section 13, as
amended, agreed to.
SECTION 14.
Government
amendment No. 30:
In page 13,
subsection (1), lines 45 and 46, to delete
"(exclusion of children from bars of licensed
premises)" and substitute "(sale of
intoxicating liquor to under age persons)".
Mr.
O'Donoghue: This is a technical amendment which makes
it clear that section 31 of the 1988 Act referred to in
section 14(1) relates to the provision of liquor to under
age persons and does not exclude children from bars.
Dr. Henry: It is a great deal more sensible than what was contained
in the original Bill. It at least means children will not
be left outside in the rain.
Amendment
agreed to.
An
Leas-Chathaoirleach: Amendment No. 32 is an
alternative to amendment No. 31 and they may be taken
together by agreement.
Mr. Connor:
I move amendment No. 31:
In page 14,
lines 1 to 11, to delete paragraph (b).
The amendment
seeks the deletion of paragraph (b). While I agree
with much of the section, it needs to be overhauled.
Section 14 places the responsibility on the licensee to
determine the age of a person. It is also the licensee
who will bear responsibility for an infraction of the
law. That is unfair.
I am strongly
against under age drinking and I have spoken in favour of
compulsory ID cards. Consider the example of a customer
who buys a round of drinks and serves an alcoholic
beverage to a person under 18 years of age sitting at his
table. Is it fair that the licensee will be held
responsible for that person being served alcohol? The
licensee would have no reason to believe any of the
drinks would be served to an under age. The Minister is
placing absolute responsibility for such action on the
publican. I believe it should be shared.
The Minister
mentioned that a person who forges or interferes with an
identity card is guilty of a criminal offence and will be
held responsible. The age of criminal responsibility - I
am sure the Minister will correct me if I am wrong - is
14 years.
Mr.
O'Donoghue: No, it is 7 years of age. I am changing
it to 12 years of age.
Mr. Connor:
A young person of 14 or 15 years of age ought to know the
law. It is an offence for such young persons to purchase
alcohol. They ought to know they are breaking the law by
going into pubs and representing themselves as more than
18 years old. Why does the Bill not take account of that?
Young people would have to be accompanied by their
parents in court because a person under the age of 18
years cannot appear in the District Court without them.
If we are to do
everything we can to fight the scourge of under age
drinking we must place some of the responsibility on
young people. Children mature much earlier nowadays and
have reached the full use of reason by the time they are
teenagers. They know when they are breaking the law. They
may misrepresent their age to obtain alcohol. We should
delete this section or revise it to include a provision
to place the burden of responsibility on the under age
person requesting alcohol. These people know they are in
breach of the law. It is unfair to place all the burden
of responsibility on a licensee who may, in the
circumstances I outlined - and there are many others one
could think of - have been fooled by the customer.
The 1988 Act
governs the supply of intoxicating liquor to persons
under 18 years of age. It is a clear interdiction. The
Minister said that Act set the framework for a voluntary
ID card scheme. I spoke on the debate on that Act which
put in place the framework for a national statutory
identity card scheme to be used by young people but it
was not activated by this Minister or his predecessors
because it was felt that it might be an infringement of
civil liberties.
We have reached
a point where we must do more than place the
responsibility for under age drinking on publicans. We
must place some of the responsibility on those who know
what they are doing. Young people between the ages of 15
and 18 years who knowingly go into pubs seeking alcohol
are aware they are breaking the law. If we are to make it
a serious offence for a person to forge identity cards,
we should make it an offence for them to demand the sale
of intoxicating liquor to them knowing they are under
age.
In my
contribution to the debate on the intoxicating liquor
Bill on 14 December 1999 to allow for late opening on New
Year's Eve I said:
Under age
drinking is very prevalent in this country. A greater
number of young children are starting to drink at a
younger age and a high percentage are regular
drinkers by the time they reach 18 years of age. Many
of them even abuse alcohol at that age.
Surveys are a
bit patchy but those conducted among post-primary pupils
at both national and regional levels indicate that at
least 63% of students and in some regional surveys close
to this city 83% of young people under 18 years of age
drink and that up to 30% of them can be abusing alcohol
by the time they reach 18 years of age. That is how
serious the problem is. That is why I am calling for more
draconian measures to deal with it, a term which I do not
mind using. Sanctions should be applied heavily to
licensees who knowingly break the law, as we said in the
sub-committee report, but all the responsibility should
not be placed on them. Other actors are breaking the law
and know it.
The Garda ought
to enforce the law more rigorously. They would say that
the law was rather grey prior to the 1988 Act because the
identity cards were never introduced. The reasonable
belief defence which a publican had, that is the
reasonable belief that the person was 18 years of age or
over, could be used and contributed a great deal of
uncertainty to any prosecutions. If one looks at the
figures, the number of prosecutions for under age
drinking in any year can almost be counted on the fingers
of one hand and one might not even achieve anything. My
views on it are even stronger than those of the Minister
and I advise him to take note of them.
Mr.
Costello: My amendment has somewhat the same effect
which is that we substitute an age card with evidence of
a person's age. The information I have is that the
national age card is unknown to most people countrywide
despite what the Minister has said and there is no such
thing as a national card. There is no obligation on
anybody to carry identification with them to prove age in
a public house. It depends on whether there is a bouncer
outside the door, which is increasingly the case in city
centre pubs, or if anybody checks them on the way in but
there is not a check after that. There is no requirement
relating to identification. The brave way to have
progressed on this was to seek a mandatory card. If the
Minister wants to take the mandatory route, as he has in
other areas, then he should have provided for a mandatory
card, rather than an age card which nobody has or knows
about. No such card exists. At least I am giving the
Minister a little more scope in this area and saying that
there should be satisfactory evidence of a person's age.
An ID card is often forged and is not the best way but at
least they should give some satisfactory evidence of age.
Alternatively, it must be a mandatory national card.
It is very
difficult for a publican in some situations. For example,
in the circumstances where a group of people come in who
are around the same age, a publican has some chance. If a
family group comes in and buys a few bottles of wine or a
few drinks and an under age member is given a drink, how
can this be policed? It is a complex area with which it
is very difficult to deal. I return to the point that
there are off-licences and pubs throughout this city and
countrywide where the absence of policing is the problem.
They are known to the young people who use them.
Everybody else seems to know about them but there is not
specific implementation of the law.
I return to the
point I made at the end of my last remarks, which is that
the Minister has not told the House that he is taking
action other than speaking to the Garda Commissioner
about the effects of this legislation. He does not intend
to set up any specific unit within the Garda to seek to
implement it. If the Minister does not have provision for
it in this legislation because there is a cost factor
involved, then we can argue here forever and no action
will be taken regarding the concerns we express or the
very desirable effects that we all want. The heart of the
problem is to ensure that there is not under age
drinking, that the publican or off-licensee does not
facilitate it, that no elder sibling or other person
enables it, but how does one come up with the formula? If
we do not have the proper policing structure, then there
is not much sense in passing the legislation.
Mr. Bohan:
An area which the Minister might examine is the constant
responsibility of the publican or licensee. A group of
young women may come into a public house, one or two of
whom are over 20 or 25 years of age but a few of whom are
under 18. They order an orange or a cola and they have a
half bottle of vodka in their handbag. They serve
themselves, one might say. What happens then if those
people are arrested and they find that they are over the
limit or whatever the case may be, even though the
publican has only served them a cola or an orange? There
could be an off-licence next door or in the immediate
vicinity. This is a serious problem currently. One cannot
search their handbags on the way in or one would be in
trouble with the law. The Minister might look at placing
greater responsibility on the people committing the
offence.
Mr.
O'Donoghue: Under current law, the Act of 1988, it is
a defence for a licensee to claim that he or she had
reasonable grounds for believing that a person to whom he
or she sold intoxicating liquor was of a legal age. By
removing this defence, which I am doing with section 14
of the Bill, a greater onus will be placed on the
licensee to ensure that intoxicating liquor is supplied
only to those who are legally entitled to purchase or
consume it on licensed premises. Licensees have been
facilitated in this context by way of the age card scheme
to which I have already referred and which, as I said, I
introduced with regulations made under the Act of 1988.
The scheme has been in operation since April 1999 and it
has been availed of by a number of persons. My
understanding is that approximately 9,000 cards have been
issued to date. I have no doubt it will continue to grow
further as persons become more acquainted with the
scheme.
Amendment No.
31 would leave us with the status quo because it
seeks to retain the defence of reasonable grounds
relating to offences arising from the sale of
intoxicating liquor to under age persons. In other words,
the amendment is seeking to indicate that if the licensee
can go to court and say that he or she believed on
reasonable grounds that the person concerned was over the
age of 18, then the court would be obliged to dismiss the
charge.
Mr. Connor:
That is not the intention and the Minister cannot make a
ruling-----
Mr.
O'Donoghue: It is the effect of what is being
proposed. That is what it means. I have an obligation to
tell the House precisely what the amendment means. I
suggest to the House that this would go against the
thrust of the Bill which seeks to introduce a modern code
of law and to strengthen the existing provisions
regarding the supply or sale of intoxicating liquor to
under age persons. The problem of under age drinking must
be addressed and it would be negligent of me to ignore
this problem in this Bill. As I have indicated already, I
am determined that the Bill will result in a considered
approach to the sale of alcohol to under age persons.
The reasonable
grounds defence in current law make it difficult for the
Garda to obtain successful convictions against the small
minority of licence holders who are engaged in the
criminal behaviour of selling alcohol to minors. Section
14 of the Bill will help to remove that difficulty.
Licence holders who uphold the new law in this regard
will have nothing to fear but those licence holders who
continually and consistently flout the law who will feel
the full force of its effect. The incidence of under age
drinking is, as I indicated, of major concern to parents
of teenagers. I am convinced that section 14, together
with the other measures which I am introducing in this
Bill and the voluntary age card scheme which I introduced
in April 1999, will go a long way towards addressing the
problem. Following the introduction of this Bill, for the
first time in the history of the State, no defence will
be acceptable for the sale of alcohol to minors. Garda
authorities, parents' groups and youth organisations
sought this tough provision and they firmly support it.
This provision is warranted if the scourge of under age
drinking is ever to be addressed. In those circumstances
it will be clear that I do not intend to dilute the
provisions of the section in any way.
Amendment No.
32 would render the age card scheme redundant by
substituting a system based merely on evidence of a
person's age. The age card scheme has the professional
backing of the Garda Síochána and it is now up and
running. The scheme makes forgery of cards difficult,
thereby ensuring the age card is a reliable form of
identification. It is an offence under section 41 of the
1988 Act to forge an age card and it is punishable by a
fine not exceeding £1,000 or 12 months imprisonment, or
both.
What is meant
in amendment No. 32 by "evidence of age"? If a
person brings along a birth certificate, will that
suffice as evidence of age? Will it still constitute
evidence of age when the birth certificate does not
belong to the 16 year old who brought it along but to the
23 year old brother or sister of that person? Some young
people carry passports to verify their ages before
publicans. I do not encourage that practice given the
value of that document. We have been down this road
before and it just did not work. The age card is an
effective way of determining proof of age. It gives the
licensee and staff adequate protection against persons
who attempt to procure alcohol unlawfully.
While the
proponents of these amendments wish to retain the
reasonable grounds defence and do away with the age card
in relation to offences under section 31 of the 1988 Act,
they have no difficulty with removing the reasonable
grounds defence or on relying on the age card in respect
of offences committed under sections 35 and 36 of the
same Act. I am not being confrontational in asking what
logic is being applied.
Senator Connor
said young people seeking to purchase drink should be
criminalised as much as the licensee. That is already the
position. The Intoxicating Liquor Act, 1988, provides
that it is an offence for any person under 18 years of
age to purchase alcohol, or for anyone else to purchase
alcohol for any person under the age of 18, whether in an
off-licence or on-licence, or to consume it in any place
other than a private residence. It is also, incidentally,
an offence for a licence holder to sell or deliver
alcohol to a person under 18 years of age, or to permit
consumption of drink by or the supply of drink to such a
person under the 1988 Act. It is also an offence for
intoxicating liquor to be in possession of a person under
18 in any place other than a private residence and it may
be seized by the gardaí. Persons under 15 years are not
allowed into the bar of a licensed premises unless
accompanied by a parent or guardian. No person under 18
is allowed in the part of a licensed premises where an
extension under a special exemption order is in force and
under 18s are not allowed on off-licensed premises unless
accompanied by a parent or guardian.
I have already
indicated my opposition to making the card scheme
mandatory. The age card scheme is designed for people who
wish to purchase alcohol. A mandatory scheme would have
to apply to all persons, even those who do not wish to
enter licensed premises. The age card scheme is for
persons who are already legally entitled to consume
alcohol on a licensed premises. If I am obliged to make
the card compulsory under the legislation, where would it
all end? It would mean that a person of 85 would require
the card as much as a person of 18 years and one day.
That would not make sense. The voluntary scheme assists
both consumers and licensees where doubt exists. It does
not, however, convey any special right to be on a
licensed premises or to be served alcohol.
Senator Connor
referred to the fact that there were hardly any
prosecutions for under age drinking. It is true that the
number of prosecutions for under age drinking in the
State has been low to date. The adoption of the
amendments in his name - I say this with all due respect
- could only lead to a situation where there could not
possibly be a successful conviction without painstaking
investigations and a degree of evidence which would be
impossible to obtain in most cases. I am not suggesting
the Senator is not well intentioned, I accept he is
opposed to under age drinking, but the difficulty is that
since the foundation of the State, in both Houses,
speeches have been made about under age drinking. No
representative has ever said he or she was in favour of
under age drinking. Every speech was against it, but
little, if anything, of a pragmatic nature was done to
tackle the scourge of under age drinking. Very little was
done to assist the parents of teenagers in their fight
against under age drinking from a legislative
perspective. From now on the situation will be different.
Everyone knows what the law is. There is complete
clarity.
I will take on
board Senator Costello's point that many people do now
know about the availability of the cards. I will engage
in a publicity campaign if necessary.
Senator Bohan
mentioned young people on premises who had purchased
alcohol somewhere else and consumed it with a bottle of
orange which they bought from the publican. My reply is
that it is an offence to permit an under age person to
drink alcohol on licensed premises, irrespective of
whether the alcohol was supplied on those premises. There
can be no equivocation or doubt. That amounts to lip
service. I am not saying the legislation is perfect but
it is a cogent attempt, with considerable support from
those with an interest in the subject, to tackle the
problem.
Mr. Connor:
The Minister tried to convey that, by moving this
amendment, I was trying to weaken the fight against under
age drinking, but I was trying to do the direct opposite.
I asked for the entire section to be deleted so the
legislation could be strengthened. A scenario was
outlined where a youngster surreptitiously brings drink
into a licensed premises and mixes it with a soft drink
which he or she purchases there. It is unfair, by the
terms of natural justice, to place the responsibility on
that licensee. I am not making any great argument for the
principle of reasonable belief, I never liked it because
I always considered there should have been a much
stronger approach to the identity card scheme. I am
pleased to hear that the 1988 Act places the
responsibility on the under age person but I have never
yet heard of a prosecution under any section of that Act.
Perhaps what we
need is a new anti under age drinking Bill where all
these matters would be brought together and specifically
set out in a single Bill, which has little to do with
licensing or other aspects of the intoxicating liquor
industry. It is singularly the greatest scourge which
parents of teenagers face. It is incumbent on us, as
Members of this House, to do everything possible to
outlaw it but we should not at the same time place an
unduly onerous burden on a licensee. That is unfair and
is not an answer to the problem.
Amendment, by
leave, withdrawn.
Amendment No.
32 not moved.
Question
proposed: "That section 14, as amended, stand part
of the Bill."
Mr.
Costello: Will the Minister make a statement on young
people working in public houses given that, under this
Bill, those between the ages of 16 and 18 can work on
general duties but cannot sell intoxicating liquor? How
will that be policed? How will it operate within the law?
Mr.
O'Donoghue: I assume the Senator is referring to the
whole issue of legalising the position of persons between
the age of 16 and 18 acting as lounge boys or girls. The
objective is to regularise the position. Persons of that
age should be allowed to work in lounges and so on.
Obviously the policing of any provision of our
intoxicating liquor laws or our criminal laws is a matter
for the Garda Síochána. Clearly, it will be the
responsibility of the employer to ensure everything is in
order. I do not envisage any difficulty. It is something
that will be broadly welcomed. It seeks to ensure that
publicans who wish to take on young people for this type
of work can do so, especially in the summer months,
without fear of prosecution.
Mr.
Costello: While the hours of trading are being
extended from 11.30 p.m. to 12.30 a.m. on Thursdays,
Fridays and Saturdays, there is also drinking-up time of
half an hour, bringing the time to 1 a.m. Following this
there will be tidying up and so on, yet young people
between the ages of 16 and 18 are performing general
duties which include serving and tidying up but not the
sale of intoxicating liquor. This means young persons
could be out at unearthly hours under the new
legislation. That is against the law. Therefore, how will
it be policed? There is no attempt to ensure that young
persons work within the law. What about the proposal from
the Pioneer Total Abstinence Association for a special
police unit?
Mr.
O'Donoghue: I shall deal with the first point first.
Regulations can be made under the Protection of Young
Persons Act which provide for the times at which young
people can work and the hours at which they must stop.
The Senator can take it there will be no young persons in
public houses at all hours of the night. That will not
happen because the regulations provide for that. With
regard to the question of a special Garda unit to police
pubs, young people drinking and so on, it is possible to
have a Garda unit for every single Act but it would not
be feasible. The Garda Síochána will be expected to
enforce this legislation.
I have had
intensive discussions with the Garda Commissioner and the
deputy commissioner of the Garda Síochána on this
legislation. We had a considerable debate on the old
legislation and it became clear to me, as it had been in
any event, that so far as under age drinking was
concerned it was extremely difficult for the Garda to
operate it. If a licensee said that he or she thought the
young person was over 18 years of age, that was a
reasonable ground offence. Therefore, the Garda would be
wasting its time. There were cases where it might have
been possible to get a prosecution, but it was extremely
difficult. The clarity with which the Bill is presented
gives to the Garda Síochána an opportunity to ensure
its under age provisions are enforced. I hope that
explains the position. There is no question of the Bill
allowing young persons to work as lounge boys or girls in
public houses until all hours of the night because there
is protection under regulations made under the Protection
of Young Persons Act for which the Tánaiste and Minister
for Enterprise, Trade and Employment is responsible.
Question put
and agreed to.
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