Brendan Howlin (Wexford, Labour) | Oireachtas source

When an immediate closure order is made by An Garda Síochána, as is clear from the term, it has immediate effect. If somebody feels aggrieved there is no way that the validity or reasonableness of an immediate closure order can be scrutinised by a court because if a premises is closed for the day, by the time a proprietor has any remedy it is obviously too late. We accept that because in circumstances where there is a significant breach of the penal elements of the legislation and the guidelines drafted by the Minister for Health, an immediate closure order is required, acceptable and proportionate. However, the fact that such an order is made means that the order, which has never been contested, challenged or scrutinised, can become grounds in and of itself for objecting in a subsequent hearing in the licensing court to the granting of a licence or a certificate for a club. My amendment accepts the fact that an immediate closure order might well be warranted in exceptional circumstances where there is an egregious violation of the health grounds and public health has to be safeguarded.

Where a publican wants to contest the closure order as being unwarranted, he or she cannot do so immediately because the effect of an immediate closure order is immediate and that is done and dusted. However, prima faciethat order then becomes evidence in a subsequent licensing court hearing. It can be argued that a premises was closed under an immediate closure order which could have serious implications for the maintenance or granting of a license for a public house. The purpose of the amendment I am suggesting is to make such a situation contestable in the courts. I am sure the Minister will tell me that this is the case in any event but in that case, there is no difficulty in positively saying so by adding the new subsection (6) that I am proposing. The amendment begins as follows:

In page 6, between lines 26 and 27, to insert the following:

“(6) Nothing in this Act prevents a licensee from putting in issue or a court from determining, in subsequent legal proceedings to which the question is or may be relevant—

It then sets out the grounds that are appropriate.

I do not want to sound too complicated, but in essence, where there is an immediate closure order and where, for practical reasons, there is no way of contesting it until the effect of the order is implemented in any event, then rather than it simply being a determined fact that is incontestable subsequently, we provide for a defence. If a licensee, in a subsequent licence hearing in court, wants to set out a defence for the issue and maintain that the particular closure order was unwarranted, then it would be up to that licensee to make such a case in court in the normal circumstances. I call on the Minister to give the safeguard that the normal rules and protections for people apply.

I am not suggesting that any senior garda would act capriciously or that events might flow in a certain direction in terms of a dialogue that might happen in premises that might result in an immediate closure being given, although in objective circumstances, if a court were to look at it, that would not be warranted. That might never arise, but should it arise, the closure order, under the terms of the amendment I am suggesting, would not be an incontestable fact in terms of any subsequent hearing in court or on the maintenance of an individual's licence.

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