Michael McDowell (Dublin South East, Progressive Democrats)

In this context, we are dealing with people committing an offence of being drunk, but we are also dealing with the question of the publican committing an offence by permitting a person in this state to be on the premises. If anyone thinks they are doing a favour to publicans, they may be doing the exact opposite. The benign, smiling fellow snoozing in the corner may, if I extend this definition, turn out to be the occasion of a prosecution when he is doing no harm to anyone. I accept Senator O'Toole's point that he should not have been given drink to bring him to that point. However, bearing in mind that closure orders are floating around in this context, gardaí do not want to get involved. I am concerned with public order and the like and I do not want to close a pub because some fellow falls asleep in the corner and the gardaí cannot arouse him from his slumbers. I do not want to go down that road unless I am forced to do so.

Senator O'Toole's phrase "incapable" begs the question – incapable of what? The Senator may think the term "incapable" is a free-standing adjective, however, I do not think it is. The first question that would be asked of me if I left this place having accepted this amendment is, "What does this mean?". Does it mean incapable of standing, sitting, speaking or keeping one's eyes open? If someone got to the point where he or she was incapable of standing, he or she would be a danger to themselves and would satisfy the other proposition. On the other hand, if they are quietly ensconced in a corner of the pub, having had one too many, it is not my great priority to get at those kinds of people. I and the public are more concerned with someone who is going to hit someone, damage someone else or damage him or herself or be so incapable that, in the cases of young men, they could be mugged or, in the case of young women, they could be the victims of sexual assault. I do not want to widen this definition to increase the liability of publicans to be prosecuted for having the old josser in the corner falling asleep over his pint. That is not what I intended to outlaw.