Brendan Howlin (Wexford, Labour) | Oireachtas source

I have tried to confine my remarks to my own amendments in each of the contributions I have made and I will do so again. The Minister said that people have the right to appeal. They do not have a right to appeal. As the Minister already outlined in response to Deputy McNamara, there is no appeal mechanism. There is a judicial review mechanism, which for the reasons stated by Deputy McNamara is certainly not one that is open to the vast bulk of publicans either for practical reasons or for financial reasons. The loss of a day's take would be a fraction of the cost of a day in the High Court taking judicial proceedings. For clarity, there is no appeal mechanism.

I have accepted in what I said that there may well be circumstances in this time of unprecedented pandemic where it is right and proper to close a premises instantly. That is not at issue. I understand and accept that to be the case. My point relates to an immediate closure that cannot be challenged because it is not appealable in any way as it would have instant effect but is used in a subsequent hearing. For the benefit of Deputy Danny Healy-Rae I am not suggesting that a person would appeal a decision to the High Court. I am suggesting that in the normal September licensing hearings, if a member of An Garda Síochána, as outlined properly in terms of my intent by Deputy McNamara, objects to the granting of a licence on the basis that the premises was closed for a day under an emergency closure order encompassed by the provisions we are now enacting, that that would be contestable. In other words, it would not be uncontestable by virtue of the fact that it happened and that would be grounds for depriving people of their licences. I am saying that would not be right.

As there is no appeal, it may well be the case that any fact can be presented to such a licensing court but if there is an uncontested judgment against a publican and his or her premises has been closed for a day, that is a very formidable weight of evidence. We should state clearly that there are grounds to contest that, which I listed earlier. The Minister's response was that the grounds set out in the manner of (a) to (e) is confining. Section 4(2)(6)(e) states: "any other question related to the lawful validity of the immediate closure order." It does not confine anything, so there is no issue of constitutionality about it. It is open-ended in that if there is belief that for any particular reason the closure order was invalid, it would be open for the court to hear that. It would not be taken as wholly writ and an uncontestable fact that the premises was closed and therefore a serious breach of regulations happened and that would be cause, without further explanation, to deprive somebody of a licence. I am suggesting that provision should be allowable in this Bill such that somebody who feels that he or she has been very unfairly treated and who has no other recourse because the decision is not appealable and it is not practical to have a judicial review - this might never arise - can state his or her case clearly under law, as we are providing for, in any subsequent court proceedings that might have a very serious implication for his or her livelihood.

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