Michael McDowell (Dublin South East, Progressive Democrats)

I thank the House for agreeing to deal with this short Intoxicating Liquor Bill 2004 as an urgent matter. It is fair to say it deals with an issue of concern to all sides of the political spectrum. I trust that this consensus will contribute towards speedy enactment of the proposals.

The primary purpose of this short Bill is to amend the Intoxicating Liquor Act 1988 in order to provide a clear statutory basis for the holding of alcohol-free events and activities for young persons under the age of 18 years in licensed premises such as a nightclub or a part of a premises, such as a function room in a hotel or the main hall of a registered club, at a time when intoxicating liquor is not being sold, supplied or consumed and when physical access to intoxicating liquor is securely prevented.

The position at present is that section 34 of the Intoxicating Liquor Act 1988, as substituted by section 14 of the Intoxicating Liquor Act 2003, generally prohibits persons under the age of 18 years from the bar of licensed premises after 9 p.m. The House will recall that this restriction in the 2003 Act constitutes part of the Government's response to concerns expressed both by the Commission on Liquor Licensing and the strategic task force on alcohol in regard to alcohol-related harm among young people. Until that Bill was passed, it was lawful for a 16 or 17 year old to spend all night in a pub up to closing time as long as that 16 or 17 year old did not consume intoxicating liquor on the premises. A 19 year old, therefore, could have a 17 year old girlfriend, or vice versa, on a premises and the only offence that would be committed in those circumstances would be if the younger partner in that duo consumed intoxicating liquor.

A number of judicial decisions required members of the Garda Síochána, when they went into premises in those circumstances, to prove that the drinks in front of the drinkers were alcoholic. With the consumption of mixers, vodkas and orange, Bacardi Breezers and so on, it became necessary for the gardaí to first link individuals sitting at a table who were under age with a particular drink on the table and, second, show that the drink was alcoholic. At that time it was unlawful for members of the Garda Síochána to be on a licensed premises for the purposes of carrying out their duties unless they were in uniform. That meant that any public house which had a lax approach, and there were very few of them I am glad to say, to serving under age people or determining who was and was not under age had no effective policing of any kind and the law had become wholly unenforceable.

On 27 May 2003, I obtained Government permission for the early drafting of the Intoxicating Liquor Bill 2003 and I published the general scheme of the Bill on the same day. This was followed by a consultation phase during which I discussed the proposals set out in the general scheme with the licensed trade bodies and with the Joint Committee on Justice, Equality, Defence and Women's Rights. The proposals in the general scheme were subsequently adapted to take account of certain concerns that had been highlighted and the Bill was presented in this House on 17 June. I recall that there was a general welcome here for the proposals set out in that Bill, although some Members felt at the time that it did not go far enough.

As regards the restrictions on those under the age of 18 in bars, I introduced a proposal to change the proposed 8 p.m. watershed to 9 p.m, having heard the views of Members in this House. Another issue raised here was the possible impact of the restrictions on the holding of private functions such as weddings and birthday and retirement parties in licensed premises. I also recognised the validity of those concerns and subsequently introduced an amendment providing that it shall not be unlawful for those under the age of 18 to be present in a bar on the occasion of a private function at which a substantial meal is served to persons attending the function.

Had potential difficulties with the holding of alcohol-free events in licensed premises been highlighted in the same way, I would have had no hesitation in bringing forward a suitable amendment to exclude the possibility that there would be a threat to alcohol-free events being held in clubs, pubs or nightclub premises. It is important to state that it was not the intention of the Oireachtas, when enacting the 2003 Act, to restrict in any way the activities of voluntary bodies and their dedicated and hard-working volunteers, including the No Name Club movement and people such as Eddie Kerr who have played such a part in those, or that alcohol-free alternative events for young people should not be available. On the contrary, I recall Members referring to the need to encourage young people to engage in leisure activities not involving the consumption of alcohol. I had the pleasure recently of attending the launch in Croke Park of the No Name Club's promotional video and I express and record my admiration of the work being done by that organisation, and similar bodies, throughout the country.

Shortly after the entry into force of section 14 of the 2003 Act at the end of September 2003, concerns were expressed by certain youth organisations that the restrictions provided for in section 14, while generally welcome and justified in terms of combating alcohol-related harm among young persons, could have the effect of interfering with the holding of alcohol-free events for persons under the age of 18 in premises licensed for the sale of alcohol. There is nothing to prevent such events being held in non-licensed premises such as school halls or community centres but I readily accept the point which has been made by the organisers of alcohol-free events that the holding of such events in the local sports club's premises or hotel function rooms increases their appeal, for obvious reasons, to young persons because of the comfortable surroundings, lighting, special effects, etc.

The same question arises in relation to sports activities, gymnastics or dancing classes that are taking place in the function room of a sports club after 9 p.m. if there is a bar at one end of the room which is shuttered. It was never my intention, and never the intention of anybody in this House and nobody ever suggested it at the time, that we were in danger of making illegal the presence, for example, of ten year old children at an Irish dancing class in the local GAA club because the function room had at one end of it a bar with the shutters down. We thought at that time that nobody in their right mind would have thought that was the effect of the definition of "bar" and the particular prohibition.

Arising from the concerns expressed about the possible negative impact of the 2003 Act on the holding of such events, legal advices on the operation of such events were obtained by the Department of Justice, Equality and Law Reform from one of the country's leading experts in licensing law. The conclusion the Department's counsel reached — a conclusion with which I fully agreed then and still agree — was that where licensed premises or a part of such premises are not being used for the sale or supply of intoxicating liquor and the bar counter is closed, such premises do not constitute a bar for the purposes of the 1988 Act. I made this information public on 4 November 2003 in the context of a reply to a series of parliamentary questions which related to the subject. The advice I received was that to have a judo class, an Irish dancing class or whatever in the function room of a GAA club when the bar at the other end of the room was locked with shutters was not unlawful.

More recently, the issue was again raised in the context of alcohol-free events planned to celebrate the release of junior certificate results. Members of the Garda Síochána were telling the organisers of such events that they could not hold them in any place, even if there was a shuttered bar in the area. I understand the Garda Commissioner consulted the Attorney General on that occasion who advised, while making clear that he has no function in relation to prosecutions but that he does have a function in regard to licensing law, that in his view the provisions in question did not prohibit those under the age of I8 from attending alcohol-free functions in a portion of a premises in which the bar had been physically closed and was not being used for the sale or consumption of intoxicating liquor.

I am also aware, however, that the Director of Public Prosecutions who, since the Act of 1974 came into force, acts independently of Government and the Attorney General in regard to the prosecution of offences, has directed that prosecutions be taken in certain cases where alcohol-free events have been held on licensed premises in the circumstances I have just mentioned. As far as I am aware, no prosecution brought by the DPP has succeeded. Indeed, I have seen details of a case in County Galway where the District Court dismissed the charges on hearing that alcohol was not available from the bar and that the shutters were down. Media cases indicate that other prosecutions along the same lines were equally unsuccessful in other District Courts.

It is possible for people to have different interpretations of the law and subject to a final determination of the meaning of any statute by the Supreme Court, there will always be room for different views on what is actually the law. All I can say is that the expert counsel available to the Department of Justice, Equality and Law Reform, the Attorney General's office and a number of members of the District Court Bench have taken the view that an offence was not committed in the context of having such an event in a licensed premises.

The problem is that if the Director of Public Prosecutions, who is independent of the Attorney General, decides that he intends to prosecute or to take one view of the law, I then have to examine this and ask whether it is fair for me to hold out one view of the law and for the Director of Public Prosecutions to operate on another view of the law and to have people who are trying to organise these events effectively put in the position of being guinea pigs in a legal experiment where one person may or may not be proven to be correct. In those circumstances everybody in this House would, notwithstanding the fact that the Judiciary, so far, the Attorney General and expert counsel available to me takes one view, feel it is appropriate to remove doubt so that the people who want to use GAA halls for Irish dancing classes and so on do not find themselves prevented by one interpretation of the law from so doing. The situation that has developed is very unsatisfactory and needs to be resolved urgently. The definition of bar which is that set out in section 2 of the Intoxicating Liquor Act 1988 serves several different purposes in that Act. I intend to adopt a somewhat different approach, including new definitions of bar and bar counter in the codification Bill to which I will refer later. Bar has three colloquial meanings — the physical counter over which drink is sold; the room in which that activity takes place and the profession of which I am a member. It is unfortunate that a single definition embraces the physical counter and the room.