Tuesday, 20 May 2003
Criminal Justice (Public Order) Bill 2002: Committee Stage.
I welcome the Minister of State, Deputy Parlon, to the House. Under section 2, food premises, food stalls or food vehicles within the meaning of the food hygiene regulations are included. How will this Bill be applied to takeaway outlets? How is the manager of such an outlet to cope with disorderly behaviour by people who have perhaps come from the local pub and congregate outside the takeaway? Should food premises be covered by this Bill?
It was a policy decision that food outlets be covered by the Bill because in the past they have been an area where disorder has taken place. In this case there will be a warning and they will be given an opportunity to get their act together in terms of avoiding such disturbances in the future.
These outlets do not sell drink so they are not responsible for the individual becoming intoxicated. Why should the owner of a takeaway, for instance, be held responsible for the misbehaviour of somebody who is under the influence of alcohol as a result of taking drink in a licensed premises? It will be extremely difficult to oblige the owners of food premises to be responsible for the misbehaviour of people outside their premises.
It is a public order Bill and is not entirely to do with drink-related offences, although clearly that is identified as the root cause of the problems. If people leave a pub in an intoxicated state and cause an affray outside a chip shop, a dance hall or wherever – it can be any sort of a congregating area – that has to be taken on board if there is disorder. Clearly it will impose extra responsibilities on the owner but it has to be included if we want to deal seriously with public order offences.
I agree that anybody who commits a crime anywhere, be it outside a chip shop, a dance hall or a club, must be held responsible under the law for their actions. The difference is that we are placing an onus on the owners of food premises to ensure that this type of behaviour does not occur outside their premises. I agree that a person who commits a crime outside a premises must be held accountable but holding the owner of the premises accountable will be extremely difficult to implement. We are not giving the management of these premises the guidelines under which they must operate. We are not telling them what they must do but rather saying that they are responsible for the behaviour of people outside their premises.
I suggest that common sense will have to prevail. If we are interested in the maintenance of public order and if, for instance, a facility is selling chips to people who are in an intoxicated state and thereby causing noise, disruption or violence, then the State must take action. If the owner is not in a position to exercise control over his customers at that hour of the night, he should close to avoid such a situation. The Bill includes the power to close the premises and this will put an onus on an owner to avoid situations where disorder would arise on his premises.
I think it will enhance the reputation of the food premises. I live in Dundrum and there is a takeway shop across the road from a public house. This Bill will clean up the whole street. Owners should feel responsible for their premises.
I think Senator Terry's view is a little extreme. This Bill will help clean up society and make the streets safe. People should take responsibility for their own premises and that is the end of it.
I am not really satisfied with the answers given by the Minister of State. Of course I agree with Senator White that we want our streets safe but this Bill does nothing to make them safe. It is putting the onus on the management of food premises to ensure that there is no disorderly behaviour outside the premises. It is not clear how they are supposed to achieve that.
It will all happen over time. The pub owner will not serve the drink and hopefully people will not be falling out drunk into the street. The pubs may forfeit their licences and it is in everybody's interest.
It is very important that the intoxicating liquor Bill is introduced as quickly as possible in order to back up this Bill.
There is no question that the premises we are referring to are and can be the focus of serious disorder. We either decide to do something about it or not. The reason the owners of certain premises are in business is certainly not just to give a service to revellers after hours but to make a profit. If by virtue of his profit-making enterprise, his premises is giving rise to disorder, then there is an onus on an owner. This Bill will impose a penalty on the owner if he does not carry on his business properly and it extends to the vicinity of his premises.
I am commenting on the fact that food premises are included in this section. If I were the owner of a chip shop near a public house I would be extremely worried that I could be liable for the behaviour of people outside my premises who had become intoxicated in the nearby pub. Problems arise in this area which are not addressed. We will probably deal with this issue later.
Question put and agreed to.
Section 3 agreed to.
I move amendment No. 2:
In page 5, before section 4, but in Part 3, to insert the following new section:
GENERAL DUTY OF LICENSEES
4.–It shall be the duty of a licensee of catering premises to take such action reasonably within his or her control as is necessary to prevent disorder or noise referred to in section 4(1).".
The amendment seeks to introduce a general duty in respect of licensees to ensure they take such action as is necessary to prevent disorder. There are very strong measures in the Bill relating to this type of duty. The penalties imply such a duty of care. My Labour Party colleagues and I believe it would be a good opportunity to spell out in legislation this duty. It would remind licensees that they need to exercise care to ensure public disorder or noise does not ensue and that they act responsibly in running their businesses.
The amendment is not acceptable for the reasons already stated by the Minister on Committee and Report Stages in the Dáil. It is not the practice to insert provisions of this nature in a criminal justice Bill. They are more suited to a civil law measure where the intention would be to create a tort or breach of statutory duty.
It is not the Government's intention to introduce qualifying provisions such as "reasonably serious" into the Bill. They would simply be regarded as let out clauses and excuses which would lead to legal arguments as to what was meant by them. The Minister is not amenable to making changes of this nature to the Bill as they are not appropriate. They would lead to unnecessary debate and confusion and could reduce the effectiveness of the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 5, before section 4, but in Part 3, to insert the following new section:
4.–Without prejudice to the other duties specified by this Bill, it shall be the duty of a licensee of catering premises which are over such size as is prescribed by the Minister for the purposes of this section to maintain security cameras of sufficient nature and quantity as are reasonably required having regard to the risk of disorder and noise on or in the vicinity of the premises.
This is a similar amendment. The Bill allows a judge to make an order in relation to CCTV. It would, therefore, be useful to have a general duty in relation to premises over a certain size. A similar proposal was made in the Dáil by my colleague, Deputy Costello. I accept the Minister of State's point that this would not be usual in criminal legislation. Very often provisions are included in legislation which are also included in other legislation. This has been the case in regard to work permit legislation where we referred back to immigration legislation, which is regarded as criminal legislation. I understand the work permits legislation is regarded as civil legislation. The Government has done this in the past.
My amendment seeks to make the legislation more effective by proposing a general duty for licensees. Everyone recognises that security cameras and other measures are useful deterrents to public disorder offences.
For the reasons outlined by the Minister during the debate on the issue in the other House, this amendment is not acceptable. A general provision such as the amendment proposes requires careful consideration and is not something the Government would introduce at such a late stage. It could be considered in the context of the more general liquor licensing reforms being studied by the Department.
This matter was raised in the other House in the context of an earlier version of the Bill, specifically in relation to section 5, paragraph (c). The Minister's amendments to the Bill in this area were accepted and the Bill now provides that the installation of CCTV cameras is a possibility a court may consider at the same time as it is making a closure order in the case of a different type of premises covered in the Bill, including food premises. In the earlier version this option would only have been available in the case of premises with drink licences.
I welcome the Minister's amendments on CCTV. He said in the Dáil and at the select committee that he would look at the issue of liquor licensing legislation. I ask that the issue be dealt with urgently.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 5, subsection (1)(a)(ii), line 31 after "caused by" to insert "the playing of music by".
Noise emanating from premises is referred to in section 4(1)(a)(ii). A number of people have complained to me about the noise resulting from the playing of music in public houses. This is a great source of nuisance to families, in particular. The Bill is the appropriate legislation to deal with the issue. My amendment should be included because it would cater for the playing of music. If it is not included, children will be kept awake at night, a nuisance for families who live adjacent to pubs. I hope the Minister of State will accept my amendment which would be of great benefit to many.
There may be a slight misunderstanding here. It appears that the effect of the amendment would be to restrict the noise criterion to the playing of music by persons on the premises. Some musicians would not appreciate their music being classified as noise.
Why is that the case? The existing paragraph is deliberately designed to cover all types of noise, not just that involving loud music. It also includes music. We are talking about very loud discussions, argument or drunken behaviour and so on. The section includes music and all other types of noise while the Senator's amendment refers to the playing of music only. Accordingly, the Minister sees no reason to amend the section which is drafted to include music, whether loud or otherwise.
Someone changed my amendment. I wanted it to be included separately at section 4(1)(a)(iii). Noise is included in paragraph (ii). I wanted to include noise as a result of very loud music in another paragraph. I take on board what the Minister of State has said that the section will also include music. Therefore, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 5, subsection (1)(a)(ii), line 34, after "for" to insert "serious".
My amendment proposes that the subsection should refer to "serious annoyance" as opposed to just "annoyance". There should be serious annoyance before a closure order is made. The term "annoyance" is quite bland and what is an annoyance to one person will not be to another. It would be more appropriate to insert this adjective to ensure that it is not just any type of annoyance which might cause the closure of a pub or premises. It must be on serious grounds.
The Senator said that one person's annoyance would not be another's. However, one person's serious annoyance could be interpreted differently as well. The Minister is not prepared to accept the amendment. The District Court will operate on the basis of common sense. If something is trivial, the court would not make an order. If something is serious, the question would be what was meant by the term "serious" and there would be lawyers' arguments in court as to its meaning. It is preferable to leave it to the common sense of the District Court on the basis that it would not make orders for trifling reasons and that gardaí would not apply for such orders. Accordingly, it can be safely assumed that, relying on the common sense of the Garda Síochána and the courts, the term "serious" is already implicit.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 5, subsection (2)(b), line 43, after "such" to insert "reasonable".
This amendment seeks to insert the word "reasonable" to provide that the licensee should be requested to take reasonable action. A garda should only be allowed to demand that an occupier take reasonable action, not any action the garda might wish.
I dealt with this issue with regard to amendment No. 2 and the use of such terms as "reasonable", "reasonably" or "serious". It is the Minister's view that this would only dilute Bill. They would simply be regarded as escape clauses and excuses which could lead to legal argument as to their meaning. The Minister is not amenable to making changes of this nature to the Bill. They are more appropriate to the civil law measure where the intention would be to create a tort or a breach of statutory duty.
Amendment, by leave, withdrawn.
Question proposed: "That section 4 stand part of the Bill."
This section deals with the closure of fast food and other food premises. I was involved in the fast food business for a number of years and I am familiar with most aspects of it. The Minister mentioned the level of noise, but who will be responsible for defining this? On one hand, some people will report matters out of vindictiveness or spite while, on the other, there will be genuine cases of disruption and public disorder.
It amazes me, with regard to fast food premises, how the food can have such an effect on people that they cause public disorder. Nobody ever mentions that drink is the cause; it seems to be the food. Nothing is being put into the food to excite people to the extent that gross public disorder is caused at fast food premises. In fact, the opposite is the case. Food calms people down.
The Government is taking a strong line on the closure of premises for providing food late at night or in the early hours of the morning. We had this debate previously in respect of litter outside fast food premises. The main problem in terms of litter is the number of plastic bags scattered throughout the countryside. I have yet to go to a fast food outlet where one will be given a plastic bag. No plastic bags are given out by these outlets. However, nobody would dare to suggest that supermarkets be closed down because of litter. One will see people eating outside fast food premises in the evening and late at night. I have seen students, young people and even old people sitting outside them on refuse bins and throwing their rubbish on the ground. That cannot be attributed to the person who owns the premises. He is she is not at fault.
The Bill uses the sledgehammer approach to closing down the food premises. In the majority of cities throughout the world, one can get food at any hour of the morning. In New York, one can get a hamburger at any hour of the day or night and nobody is talking about closing these outlets down. The people of New York are not much different from the people of Ireland. Why is there no legislation there to close food premises because of public disorder? One will see bouncers on the doors of such premises, but they are there to keep out people who might cause disorder inside the premises. There are not concerned about what happens on the streets; that is a matter for the authorities.
Where a fast food outlet has people on the door and there is public disorder on the street, the latter cannot be attributed to the person who is running the business. The person is legitimately running their business. They have bouncers on the door and trained staff, to whom they pay big wages, and they are under enormous pressure to keep their businesses going. The Minister and the Garda Síochána, however, will come along and close down the premises. It is extremely heavy handed to put such a provision in a Bill, especially when drink and not food is the cause of the problem.
I appreciate that people will congregate in places. One need only visit a town where a provincial final is taking place. There will be huge crowds. Some of the people might not have been in a fast food premises in the town, but they might cause problems outside such a premises. The Bill applies to people who have been on the premises. How is one to say whether a person was on the premises? He may well have got a burger from somebody else who was in the premises and not been in there himself.
This section is inoperable. I do not know how the Garda Síochána will implement it. However, it will be possible to go to court and close somebody's business down in a big legal case that will cost the owners a great deal of money and cause great personal trauma. They are already under enormous pressure to employ people at unsociable hours and they face huge insurance costs. I feel for these people. They are providing a service in many cases. Do we want a situation to arise where it impossible to get anything to eat in our towns? That is what is happening in my own town where it is difficult to get something to eat after 8 p.m. other than in a fast food outlet. We invite tourists to the country but at the same time we are closing everywhere down.
Before the Minister comes back on Report Stage he should re-examine this. I understand that a stance must be taken but this will mean that these premises will have no choice but to close, despite the fact that people are running them to the best of their ability. There are those who have been barred from such places who will get up to mischief and be vindictive, causing problems for those running the food outlets and this will not be taken into account in court.
On Sunday evening I had the pleasure of attending Senator Labhrás Ó Murchú's oration in Crossbarry commemorating the ambush at Kilmichael on 21 March 1921 and it was an inspiration to listen to him. There was, however, a pub 100 yards from the site of the oration and it was pumping out loud rap music.
It was not rebel music, it was rap music and it was blaring out of the windows, causing noise pollution in the whole area. I went into the pub and was met by a phalanx of drunks who were totally stocious at 6 p.m. a mere 100 yards from where Senator Ó Murchú was giving his inspirational speech.
Directly across the road from the pub there is a beautiful Centra store. It closed at 6 p.m. and the staff took in the litter bins from outside the store because they wanted to maintain the standard of their shop-front and avoid the dumping of ugly glasses and bottles by people leaving the pub. The shop-front was immaculately kept. People must take responsibility for their premises and we must become more continental in our actions. There was a complete contradiction in this situation, with raucous music 100 yards from this inspirational speech about our history.
I deal with many multiple retail outlets and it is rare that one sees litter around their shops because they are conscious of their public image and want to keep the shop-front clean. On the Sunday morning after a rugby match, however, the litter bins on streets of this town are overflowing and Baggot Street is covered in litter. Private enterprise means that the retail outlet will keep its property clean.
I agree that these are the only places where food is available at night and we should do everything to help late night take-away outlets, but they will be further enhanced if they take responsibility and do not allow rowdy people to gather around them. There will be better customers coming at night if they are not afraid. In Dundrum there is a fabulous Macari's chip shop. If I thought the street was tidy and safe at night I would go down if I was hungry, but I know that there will be hell for leather down there.
There is a problem with food outlets because we are dealing with people who have come from licensed premises to buy chips. It will be extremely difficult for the owner of the chip shop to be responsible for the behaviour of those outside. If he sees an incident occurring, what can he do? He can ring the Garda and report the public disorder, but that is all. If there is public disorder, however, outside the licensed premises caused by those who have been served too much drink, I fully agree that the licensed premises manager should be held responsible. How can the manager or owner of the chip shop be held responsible for the misbehaviour of the drunk who came from the pub? The Minister should revisit the provisions for food premises before Report Stage.
Senators Burke and Terry have a valid point. The situation is different for food premises in that they do not need a licence to do what they do because they are not serving alcohol, the main cause of public disorder of this type. I am worried, therefore, about the impact this legislation will have on these premises.
They should not, however, be totally excluded from the legislation because there are many incidents of people being attacked and even killed outside food premises and that must be taken into account. There are food premises that do not operate as they should, which do not keep a good house, and that must be recognised in the legislation. That is why the Labour Party would ensure closure orders are made in reasonable circumstances and requirements would be put in place for these outlets.
I have some sympathy for the Senators' point of view but my experience of chip shops is that the rows seldom start outside; they generally start inside and spill out on to the footpath. It is clear cut – if the Garda is called to an incident that has spilt out of a premises, the chip shop owner should have some responsibility. If a row is started by people walking past and the Garda is called, common sense will prevail. Chip shops and fast food outlets cannot be exonerated because many of them are close to licensed premises. The drunk coming out of a pub will run to the chip shop for food first. They are positioned in these areas because the closer to the pub they are, the better business is. I have some sympathy for them but they cannot be completely exonerated. The Minister has struck a fair balance.
There is no argument that drink is the problem, not salt or vinegar. We all know, however, that next to night clubs and bars with late licences there are fast food outlets where people accumulate and that serious public order offences have occurred in them. Several years ago, in my own county, a fracas developed outside a chip shop and a person assaulted by a local bully ran to his car, took out his rifle and unfortunately shot the bully dead. In fast food outlets, all that is needed to give rise to trouble, if people are drunk, is for someone to jump the queue or insult somebody.
The order applies of course to licensed premises as well. To stop short of including food outlets would mean a major deficiency in the Bill. Before an application for closure can be made, disorder must have taken place on the premises or in its vicinity, there must be excessive noise emanating from the premises or its vicinity, and such disorder or noise must be likely to recur. There is a provision where, if there is a difficulty or disorder and the Garda is notified, it will give a warning. It is only when there is a recurrence of that particular disorder that the issue of closure would arise. The matter then has to go before the court, which will adjudicate. We must assume a fair degree of common sense in our courts and among our gardaí.
It would leave a major deficiency if the Bill were to exclude food outlets, because there has been widespread experience of disorder at such outlets. The reason these outlets are there is to make money, and if they exist simply to provide sustenance for drunken revellers after the pubs close, one must ask if such business is appropriate, if it is giving rise to disorder and to assaults. These food outlets must be covered in the legislation, which will place major responsibilities on their owners or operators.
I move amendment No. 7:
In page 6, between lines 6 and 7, to insert the following new paragraph:
"(a) that a licensee has failed to take action requested of him or her under section 4(2)(b),".
The purpose of this amendment is to include the provision that, before a court can make a closure order, the licensee must have failed to take action requested of him or her under section 4(2)(b). This amendment is appropriate because, under the section as currently worded, a closure order could be made by the court without any default by the licensee. The licensee merely has to be the subject of the accusation of disorder or noise in the premises or in the vicinity, but there is no requirement to show that the person has actually failed to deal with or address the problem.
If a person's livelihood can be taken away, the person should be at fault in some way. As the section is currently worded, it would seem that the licensee, or the owner or occupier, could be completely blameless. The section could also be unconstitutional. For that reason, and the other reasons outlined, I am putting forward this saving clause.
Similar points were made by Senators Burke and Terry regarding the unfairness of the provisions whereby a food premises operator, for example, might simply be the victim, so to speak, of disorderly behaviour. That person should at the very least be notified of being at fault, and should have an opportunity to rectify the fault.
An amendment similar to that being proposed has already been discussed in the other House, on both Committee and Report Stages, and has been rejected by the Minister for Justice, Equality and Law Reform, for the reason that the Minister was not amenable to making a change of this nature to a public order measure, on the grounds that it would weaken the enforcement of the Bill. Such a change remains unacceptable.
I do not accept what the Minister of State has said, that the amendment would weaken the section or the legislation. There is a need for protection when one is talking about people's businesses. I cannot understand why the Minister of State is not accepting the amendment and ask him to reconsider.
As I said, a similar amendment has been discussed. Under subsection (4) it is provided that a person who does not comply with a closure order is guilty of an offence, and can be subject to a penalty of not more than €50 or a prison sentence not exceeding three months. If we are serious about dealing with public order offences, we must have a pretty strong Bill, and any weakening of the enforcement of the Bill would certainly render it useless. For that reason the Government cannot accept the amendment.
Amendment, by leave, withdrawn.
Section 5 agreed to.
Section 6 agreed to.
I move amendment No. 8:
In page 7, subsection (2), line 30, after "period" to insert "not exceeding 30 days".
I propose this amendment because, in relation to the closure order, or a subsequent closure order, there is currently provision in section 5(2)(b)(i) and (ii) that such an order cannot exceed seven days in the case of the first order, or, in the case of a second or subsequent order, must be not less than seven and not exceeding 30 days, yet section 7(2) seems to allow for an indefinite extension of the closure order. There is nothing there to indicate how many days the closure should be, or what length of time it should or should not exceed. That is why this amendment is tabled, in order that the length of time should not exceed 30 days, which seems reasonable.
There is no need for this amendment. The point it refers to was raised on Committee Stage in the Dáil and was withdrawn by Deputy Costello on the basis that the Minister for Justice, Equality and Law Reform would examine the position to ensure that any extension of a closure order, which is provided for under section 6 of the Bill, in circumstances where the Garda is satisfied there is a risk that the disturbance or noise will recur, cannot be beyond an upper period of 30 days. The Minister would have confirmed this position on Report Stage but the debate on the Bill was concluded before the point was reached.
I am happy to confirm that as defined in the Bill, a closure order means an order made under section 5 for the closure of a catering premises, that such term includes such an order as affirmed, varied or extended under the provisions of section 6. Section 5(2) then goes on to provide that a closure order shall order the closure of a catering premises for a period not less than seven and not exceeding 30 days. Section 5, read in conjunction with the definition, adequately covers the situation. The Minister is satisfied that there is no need to amend the provision in the manner suggested. I respectfully suggest that Senator Tuffy might withdraw her amendment in the light of the clarification I have provided.
Amendment, by leave, withdrawn.
Section 7 agreed to.
Sections 8 to 10, inclusive, agreed to.
I move amendment No. 9.
In page 8, after line 30, to insert the following new section:
"11. Any member of the Garda Síochána whether in uniform or not may enter without a warrant any place in respect of which the provisions of the Criminal Justice (Public Order) Act 2003 apply, any premises licensed under the Intoxicating Liquor Acts 1883-2000, the Registration of Clubs Acts 1908-2000, the Public Dance Halls Act 1935 and the Gaming and Lotteries Acts 1956-1986 for the purpose of enforcement of the Intoxicating Liquor Code or the Criminal Justice (Public Order) Act 2003.".
My amendment provides for uniformed or ununiformed gardaí being given the right to enter a premises without a warrant. The Minister for Justice, Equality and Law Reform, Deputy McDowell, said in this House recently that under the intoxicating liquor Bill he will be including this provision, but it is appropriate that the amendment be included in the Criminal Justice (Public Order) Bill 2002. It would allow greater powers for the Garda to arrest people behaving in a disorderly fashion or having consumed too much alcohol.
It is appropriate to include this amendment in the Bill, as it would give greater powers to the Garda to carry out the work necessary to tackle the type of public order offences which occur. It would tackle it at source by dealing with the individual who is consuming too much drink, acting in a way that is unacceptable or seeing whether the owner of the premises is providing drink to somebody who has already taken excessive amounts of alcohol. I recommend that the Minister of State, Deputy Parlon, accept this amendment.
It is intention of the Minister for Justice, Equality and Law Reform, Deputy McDowell, to strengthen the powers of the Garda Síochána in this area, but the relevant provision will be contained in a separate intoxicating liquor Bill. This follows from a recommendation in the Intoxicating Liquor Commission's recent report. The Minister indicated on Second Stage of this Bill in the House on May 15 that he is preparing the intoxicating liquor Bill as a matter of priority. In the light of this development, I ask Senator Terry to withdraw the amendment.
I look forward to this amendment being included in the intoxicating liquor Bill, if it is not to be included in this Bill. However, this Bill has taken some time to get to this Stage and, hopefully, will be enacted soon. We will have to go through all Stages of the intoxicating liquor Bill, so we are talking about another 12 months or so. On the basis of the time it took to get this Bill through the Dáil, can we expect the same timeframe with the intoxicating liquor Bill? In the meantime, we are without the facility provided for in this amendment. It is a worthwhile one to enable the Garda to carry out its work more effectively. I ask that it be accepted.
I accept what the Senator has said and it would be a very worthwhile provision in the Bill. However, the Minister for Justice, Equality and Law Reform, Deputy McDowell, did say he was preparing this legislation as a matter of priority. I do expect that it will be expedited quickly.
In support of the Minister of State, Deputy Parlon, I recall the Minister for Justice, Equality and Law Reform, Deputy McDowell, telling the House recently that he had other considerations on this matter that he will implement in future legislation. Rather than delaying the legislation and taking amendments, he wants the Criminal Justice (Public Order) Bill to go through in its entirety now. Senator Terry may recall this. I take her point, but perhaps what she has in mind is something that the Minister also has in mind. He may introduce it at a later date, but not too late a date.
Amendment, by leave, withdrawn.