Paddy Burke (Fine Gael)
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Amendments Nos. 1, 2 and 3 in the name of Senator Ryan are ruled out of order.

Brendan Ryan (Labour)
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I move amendment No. 4:

In page 4, subsection (5), lines 1 and 2, to delete "any bar counter thereon was securely closed" and substitute "physical access to intoxicating liquor on those premised or, as the case may be, that part is securely prevented".

It is the procedure in this House that communication is made with a Member whose amendments are out of order before Committee Stage is reached. I have received no communication to that effect. It may be because we moved straight on to Committee Stage.

Paddy Burke (Fine Gael)
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That could well be; it may be in the Senator's pigeon hole.

Michael McDowell (Dublin South East, Progressive Democrats)
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If it is any consolation to the Senator, similar amendments were ruled out of order in the Dáil.

Brendan Ryan (Labour)
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I am glad to hear the two Houses of the Oireachtas are at least consistent because it appears that different arms of the State cannot be consistent in their interpretations of legislation. Otherwise we would not be discussing this Bill.

The nub of my amendment No. 4 relates to the issue of the bar counter. Whether this amendment is relevant depends on how one interprets section 1(5), which states:

It shall be a defence for a person charged with an offence under section 33, 34 or 34A of the Act of 1988 to prove that at the time of the alleged offence intoxicating liquor was not being sold, supplied or consumed on the licensed premises concerned or, as the case may be, the part concerned of those premises and that any bar counter thereon was securely closed.

This section refers to a "bar counter" which is otherwise missing from the Bill. While I am not being critical, in the Dáil the Minister was somewhat ambiguous as to whether this subsection was a defence to be used for past offences or a possible defence in case somebody is prosecuted in a way we cannot currently envisage. After all none of us envisaged that this legislation would be necessary.

Michael McDowell (Dublin South East, Progressive Democrats)
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In this Bill, it was my intention to afford a defence to a person who had in the past run an event, for example, a disco or an Irish dancing class, in premises containing a bar with closed shutters. In the Dáil, Deputies English and Costello claimed I was taking a very narrow view of the idea of closing a bar. They said that if I really wanted to encourage bar and club owners in future to hold large events such as discos for youngsters, by forbidding them from selling minerals over the bar or using the glasses, basins and cash registers from behind the bar, I would seriously inconvenience people who had no intention of exposing the youngsters in such places to alcohol.

Obviously two views on this matter exist. I was persuaded by their view that in future I should not act to inhibit somebody making use of the bar counter, basins, water supply, ice making machine, glasses and cash register in the context of an alcohol-free disco where the children would line up at the bar counter for something to drink. Sections 1(1) to 1(4) make it clear that no offence will be committed in future as long as the owner completely removes alcohol from that part of the premises and securely locks it away. However, I did not want to say that it would be a defence to show that the alcohol was locked away regarding offences that could have been committed before this Act was commenced because the police would not have been in a position going into such premises on the state of the law as it then was to grope around the counters to verify whether all the alcohol had been put away, etc.

A distinction is made between sections 1(1) to 1(4) and the defence offered in section 1(5) in that section 1(5) is supposed to include both past and future situations, whereas sections 1(1) to 1(4) are to be declaratory of what the law is from the passing of the Bill onwards with a view to encouraging people to provide the facilities to which Deputies English and Costello referred. Therefore, I am making that conscious distinction. It is true that the language of sections 1(1) to 1(4) is wider than the defence in section 1(5) and that is a matter of deliberate choice on my part in framing the Bill. I had said in public that if the bar were shuttered, a defence existed. I wanted to save people from further prosecution in those cases in respect of relying on what I had said was the advice available to me and from the Attorney General.

This proposal is now wider in sections 1(1) to 1(4). Effectively it states that the circumstance in section 1(1) that physical access to intoxicating liquor is securely prevented is to be sufficient in future. From now on if an owner clears out the drink from behind the bar, opens the shutters and uses the bar facilities only for the purpose of serving minerals——

Mary Henry (Independent)
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Or water.

Michael McDowell (Dublin South East, Progressive Democrats)
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——or water to children across the bar and can show there is no question of alcohol being in a position to be consumed on the premises — in other words that access to it is securely prevented — an offence is not committed. A distinction is drawn between section 1(5) and what is referred to in the preceding four subsections. This is based on the very simple proposition that the Attorney General and I had come to the view, as I have stated in public, that people did not commit an offence when the shutters were closed and I am intent on saving those people. In the future I am willing to concede Deputy English's broader and slightly more liberal approach.

Senator Henry asked about serving water. It is not a legal requirement on any night-club to have tap water available at all. However, I would imagine the Judiciary would take a very poor view of any night-club preventing access to running water. As Senators know, in the past it was seen as a partner in the consumption of ecstasy and the denial of access to it was regarded as having a serious health implication. Quite apart from that matter, there is the economic issue. I do not expect publicans to supply tap water over the counter for nothing. Decent publicans to their credit frequently do. We cannot say that as a matter of right anybody is entitled to enter licensed premises and ask for tap water for nothing.

Mary O'Rourke (Fianna Fail)
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Certainly not in a posh restaurant.

Michael McDowell (Dublin South East, Progressive Democrats)
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I remember a story the Tánaiste told me. During campaigning in the Dublin West by-election, won by Deputy Brian Lenihan, she was outside a supermarket. A lady wearing one of Senator Quinn's fur coats approached her pushing a trolley and berated her over the possibility of the introduction of water charges. It may have been implied that such charges were not completely off the agenda at the time. She gave out socks to the Tánaiste at the very thought of it. The Tánaiste looked into the trolley and found it full of bottled water for which the lady had paid a vast sum of money. It makes one wonder about these matters.

Mary Henry (Independent)
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I thank the Minister for his reply. Whenever I have asked for a glass of water in a pub, I have received it with ice and often a slice of lemon at no charge at all. Under health legislation, the Minister is right that they were quite wrong at that time to turn off the water at hand basins in the lavatories.

Paddy Burke (Fine Gael)
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Amendments Nos. 5 and 6 are related and may be discussed together by agreement.

Brendan Ryan (Labour)
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I move amendment No. 5:

In page 4, subsection (7)(a), lines 8 to 10, to delete "9.00 p.m. (10.00 p.m. during the period commencing on 1 May and ending on 30 September)" and substitute "10.00 p.m.".

The Minister has, in effect, dealt with these amendments. I am not keen on a return to the distinction between the licensing laws in the winter and the summer. I suspect that some parts of the Minister's brain must have been severely stretched by the consolidation of all the legislation. It is an interesting commentary on our culture that while we see the pub and the consumption of alcohol as part of our social life, we have also generated an extraordinary raft of legislation in that regard. It is as if our collective national brain has two sides, one entirely devoted to the enjoyment of alcohol and the other devoted to pretending that we do not really enjoy alcohol. The result is that we have created a raft of legislation. I understand that the Minister will not accept the amendment I have moved. I have plenty of things to fall out with the Minister about, so I will not fall out with him about this matter.

Michael McDowell (Dublin South East, Progressive Democrats)
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Attitudes to drink can change significantly. Pubs were once allowed to open at ungodly hours of the morning because it was considered important that dockers and fruit market workers were entitled to a pint when they finished work. I do not know whether that is still the case.

Maurice Cummins (Fine Gael)
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Such pubs still exist.

Michael McDowell (Dublin South East, Progressive Democrats)
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A funny exception was made. One could probably go from a night-club to a dockers' pub without having to suffer much deprivation.

Maurice Cummins (Fine Gael)
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It has been known to happen.

Michael McDowell (Dublin South East, Progressive Democrats)
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Some barristers in days gone by who were unduly fond of drink used to go to dockers' pubs on their way into work to fortify themselves. We spoke earlier about wine. When a barrister friend of mine who went into a pub in Valentia or Portmagee was asked by the landlady what he wanted, he asked for a glass of wine. There was a perplexed look on the landlady's face as she asked if he wanted sherry wine or port wine.

Mary O'Rourke (Fianna Fail)
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That must have been before small wine bottles were introduced.

Michael McDowell (Dublin South East, Progressive Democrats)
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We are changing as a society.

Brendan Ryan (Labour)
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I move amendment No. 7:

In page 4, subsection (8), line 16, to delete "extended or amended" and substitute "amended, substituted or inserted, as the case may be,".

I do not often say this but I am moving this amendment because I have been advised that the phrase "amended, substituted or inserted, as the case may be" is more appropriate than the phrase "extended or amended". I offer this advice to the Minister in the spirit in which it was offered to me — as an attempt to be more precise. We should worry, as we consider this Bill, about the capacity of other people to demand precision from legislation that mere legislators cannot come up with, apparently.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am glad the Senator has offered me the amendment in that spirit, but I reject it in the same spirit. The term "amendment" includes changes by substitution or insertion.

Brendan Ryan (Labour)
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I will not argue about it with the Minister.

Michael McDowell (Dublin South East, Progressive Democrats)
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If I was to agree on this occasion to include a reference to "substituted or inserted" as an embellishment to the term "amended", I would have to do it on every occasion, on principle, and legislation would become longer rather than shorter.

Brendan Ryan (Labour)
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I am glad the Minister said that the legislation will be introduced in this House. May I suggest that when the Minister makes the scheme available for discussion, it would be worthwhile to have a debate on it, as distinct from the legislation, in both Houses?

Mary O'Rourke (Fianna Fail)
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We could have a pre-legislation discussion.

Brendan Ryan (Labour)
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We could be allowed to make statements when the scheme is published. A large amount of common sense is talked in this House about the whole area of drink.

Michael McDowell (Dublin South East, Progressive Democrats)
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I agree.

Mary O'Rourke (Fianna Fail)
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He is right.

Brendan Ryan (Labour)
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Much more common sense is spoken by Senators than by many of the external lobby groups. Having listened to debates in the House over the years, I have formed the view that Senators are reasonably sensible about the matter most of the time. It would be worthwhile to get the views of the Houses of the Oireachtas, as well as the 40,000 lobby groups outside the Oireachtas, before the legislation is introduced.

Michael McDowell (Dublin South East, Progressive Democrats)
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I assure the House that I will submit the scheme to the joint committee. If this or the other House wants to examine it in advance, I will not oppose such a debate, depending on the House's time constraints. I do not want to make it too complicated, however. I do not want to provide for two bites of the cherry because that would mean I would be here for the rest of my life.

Brendan Ryan (Labour)
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Worse things could happen.

Michael McDowell (Dublin South East, Progressive Democrats)
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I enjoy being here.

Mary Henry (Independent)
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I congratulate the Minister on the Bill. When the junior certificate results were issued, it was terribly disappointing that those who tried to organise alcohol-free discos where children could celebrate ran into trouble. I am glad the Minister has clarified the situation for such people.

Maurice Cummins (Fine Gael)
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I congratulate the Minister again. The amendments being made in the Bill represent a victory for common sense, as I said earlier. I compliment the Minister and his officials. The error or omission in section 14 of the 2003 Act has been rectified. I hope we can proceed positively from this juncture.

Tony Kett (Fianna Fail)
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I congratulate the Minister too. As I said earlier, the Minister brings legislation to the House every time he comes here. Something will be gained every time we talk about the subject matter of the Bill before the House. Some people have said that we should have seen this problem coming, but the practical application of legislation is sometimes the best way to proceed, especially if amendments need to be amended. I agree with the Minister that we will have an opportunity to make further helpful amendments when the codification Bill is introduced. I congratulate the Minister again.

Brendan Ryan (Labour)
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I would be the first to say "I told you so" to the Minister if I had told him so, but none of us told him so.

Maurice Cummins (Fine Gael)
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We did. A Fine Gael Senator pointed it out.

Michael McDowell (Dublin South East, Progressive Democrats)
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One person hinted at it.

Brendan Ryan (Labour)
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I genuinely believe, as I said before, that we should not be here. I compliment the Minister on his speedy response, but if every Bill was interpreted in the way the 2003 Act was interpreted, the Oireachtas would spend most of its time writing clarifications to clarifications to clarifications.

Mary O'Rourke (Fianna Fail)
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It would.

Brendan Ryan (Labour)
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Common sense has to apply at some stage.

Michael McDowell (Dublin South East, Progressive Democrats)
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In fairness to Senator Feighan, it could be argued that he foresaw this problem. However, he certainly did not point it out in a way that impinged on my mind or made red lights flash to indicate to me that there was a problem.

Maurice Cummins (Fine Gael)
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It is obvious that the DPP did not think so either.

Michael McDowell (Dublin South East, Progressive Democrats)
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I agree with those Senators who said they would prefer not to be here today. I would prefer if a different view had been taken of this matter. The Director of Public Prosecutions is independent of me. I cannot and do not criticise him for taking his own view of the law. Where two views are open in respect of a statute, however, it is a matter of legal construction — a rule of the criminal justice legal system — that the construction which is more favourable to innocence must be accepted by a court. In this case, to direct prosecutions required the DPP not merely to come to the view that he was right, but also to think that nobody else was right. In other words, the view had to have been formed that two reasonable constructions were not possible. It is obvious that the Attorney General and I agree with the DPP in that regard, as do some members of the District Court Judiciary.

There is nothing I can do because I respect the independence of the Office of the Director of Public Prosecutions. I cannot telephone the DPP to say, "Ah, please", or "Maybe you are wrong, maybe you will reconsider". We do not have that relationship, for very good reasons. I have the height of respect for the DPP. He has taken the initiative of suggesting to the Department of Justice, Equality and Law Reform and other agencies that there should be more joined-up thinking. However, it is his decision whether a prosecution is instituted and his alone. A different view taken by others is of no significance if he gives a clear direction to the gardaí to prosecute in certain cases. I can do nothing other than legislate in such circumstances.

I thank the House and all the Members for their contributions to this debate. I regret that I have had to trespass on their time with this urgent matter. We should not forget that there is a motion for early signature. I ask Members to support it.