Committee Reports > List of Committees > Joint > 1998 > Committee on Justice, Equality, Defence and Women's Rights > Report - A Review of Liquor Licensing

OIREACHTAS ÉIREANN

TUARASCÁIL

ón Chomhchoiste um Dhlí agus Ceart, Comhionannas agus Cearta na mBan maidir le

hAthbhreithniú ar Cheadúnú Deochanna

REPORT

of the Joint Committee on Justice, Equality and Women’s Rights

on

A Review of Liquor Licensing

Table of Contents

Appendices

Foreword

by Charles Flanagan T.D.

It is my pleasure to introduce this Liquor Licensing Review on behalf of the sub-Committee on Legislation and Security (commonly known as “the Licensing sub-Committee”) of the Joint Committee on Justice, Equality and Women’s Rights. I was privileged, as Chairman of the Select Committee on Legislation and Security in the 27th Dáil, to have initiated the review which, unfortunately, was not completed prior to the dissolution of the Dáil in May, 1997. Earlier this year I was pleased to be asked by a cross-party group of Dáil Deputies and Senators to act as Chairman of the present sub-Committee.

Our liquor licensing code is complex, archaic and riddled with anomalies, many of which are difficult to justify as we approach a new millennium. Some governing regulations operate from the first half of the 19th century and most date from the earlier part of this century. There are almost 80 licensing Acts of Parliament and of the Oireachtas affecting our present day licensing code, all of which have been introduced since 1833. Various Finance Acts contain conditions specifically relating to licensing matters as do some of our Courts Acts.

Many of our original laws reflect a puritanical Victorian heritage, and anomalies in theory and practice have grown over decades, resulting in confusion and complexity of a very high degree. Licensing laws are technical and the sub-Committee is conscious of the need to deal with issues in as practical a way as possible.

Confusion surrounding our licensing laws is not new. As far back as 1877 an eminent member of the judiciary in the course of a court hearing stated:

“the provisions of the numerous statutes regulating licences for the sale of intoxicating liquors in Ireland are so complex, uncertain and contradictory that it is difficult to carry them into effect or to reach the meaning or intention of the legislature”.

Over a century later that confusion is of far greater dimension than in the 19th century. More than anything else, a liquor licensing code must consider the needs of the citizen and must balance those needs against attitudes to alcoholism and alcohol related problems, as well as the demands of the trade for protection and restriction. Such a code must obviously reflect public policy relating to competition, de-regulation, tourism, under-age drinking and the need to be sensitive to the wishes of the community. As a legislator, I am conscious of the need to strike a balance between access to alcohol on the one hand and control of such access to minimise the problems which are all too evident in society.

In relation to competition, high prices and the high value of the licence, the sub-Committee did not debate these factors or issues creating barriers to entry into the market. Rather, these matters will be considered in a report due shortly from the Competition Authority commissioned in 1997 by the Coalition Government at the request of Minister of State, Mr. Pat Rabbitte T.D.

The overriding concern of this cross-party document was the need to strike a balance between the often conflicting interests of the trade and the consumer and this I believe we have achieved to good measure.

I wish to pay a warm tribute to all concerned with the publication of this document, particularly Mr. Marc McDonald, lecturer in Law at the Dublin Institute of Technology, Cathal Brugha Street who was the consultant to the Committee on Legislation and Security in the 27th Dáil. I wish to acknowledge the very fine contribution of Ms. Marie Kennedy, Clerk to the Committee on Legislation and Security in the 27th Dáil and Mr. Alan Murphy, Clerk to the Joint Committee on Justice, Equality and Women’s Rights. Marie and Alan worked so closely on this document that they married each other in the course of our review!

I wish to thank all the members of the cross-party sub-Committee on Legislation and Security for helping frame this wide-ranging report which contains over 70 requests for change. I look forward to the Government considering the document and acting at an early date on the recommendations contained therein.

________________________

Charles Flanagan T.D.

Chairman of the sub-Committee on Legislation and Security

June 1998

Part 1: Introduction

Background to this Review

1.1In February, 1996 the former Dáil Select Committee on Legislation and Security appointed a sub-Committee to carry out a Review of Liquor Licensing. The Orders of Reference of both former Committees are set out at Appendix 1, and the names of the Members of each Committee are listed at Appendix 2. The sub-Committee had commenced its work, and had made progress (see below) by the time of the Dáil General Election in May, 1997, when both Committees ceased to exist.

1.2The sub-Committee on Liquor Licensing invited submissions from interested persons and conducted hearings with a number of groups in 1996. A list of the bodies, groups and individuals from whom submissions were received and who met with the sub-Committee is included at Appendix 3.

1.3Mr. Marc McDonald, Lecturer in Law at the Dublin Institute of Technology, Cathal Brugha Street, was engaged as Consultant to the sub-Committee to assist it in its work and Mr. McDonald prepared a research document for the sub-Committee which has formed the basis for this report.

1.4Following the 1997 Dáil and Seanad General Elections, the Joint Committee on Justice, Equality and Women’s Rights was established in November, 1997 and, in January, 1998, the Joint Committee appointed the sub-Committee on Legislation and Security to continue the review of Liquor Licensing which had been commenced by the former sub-Committee. The Orders of Reference of both Committees are set out at Appendix 1, and the names of the Members of each Committee are listed at Appendix 2.

General Approach

1.5The sub-Committee on Legislation and Security reviewed the work that had been done by the former sub-Committee and decided that no further submissions or oral hearings would be required for it to finish its work. The sub-Committee proceeded to formulate its report on the basis of the evidence received by the former sub-Committee and by reference to the research document prepared for it by Mr. McDonald.

1.6The sub-Committee held 10 meetings from January to June, 1998 at which the recommendations in this report were formulated, debated and decided upon.

1.7Members of the sub-Committee attended a Seminar on Liquor Licensing organised jointly by the Department of Hotel and Catering Management of the Dublin Institute of Technology and the Department of Justice, Equality and Law Reform. The Seminar covered a wide range of licensing matters which included reform of the law and experiences in other jurisdictions as well as issues relating to prices, health and competition.

1.8The sub-Committee also met with Mr. Richard Horsfall, Chairman of the Liquor Licensing Commission of the State of Victoria, Australia where there is long history of changes in the regulation of intoxicating liquor.

Content and Format of Report

1.9In this report, we express our views and discuss the issues in simple terms and in ordinary language. We consider that this is appropriate given that, notwithstanding the complexity of the liquor licensing code, the issues and problems surrounding it are widely acknowledged and are understood in practice in simple terms also.

1.10We recognise that the implementation of our recommendations will, in many cases, involve a substantial overhaul of the existing code of liquor licensing law which has been developed over a period which is in excess of 150 years. We do not underestimate the magnitude of this task but we do consider that it is long overdue and that the difficulties which it presents are, in large part, attributable to successive failures to address it in the past.

1.11At the time of publication of this report, we understand that the Competition Authority has prepared a report on the competition issues arising in the licensed trade. We look forward to the publication of this report and we anticipate that it will complement our own recommendations in contributing to the public debate on liquor licensing.

1.12We are also aware that the Revenue Commissioners have observations and information concerning the administration of liquor licensing which we hope will be conveyed to the Minister for Justice, Equality and Law Reform for consideration in association with the recommendations in this report.

1.13We look forward to an informed and stimulating public debate on all of these issues and we recommend to the Minister for Justice, Equality and Law Reform that an early action be taken to implement changes in the liquor licensing code.

Acknowlegements

1.14The sub-Committee would like to record its appreciation of the assistance afforded to it, and to the former sub-Committee, by the Department of Justice, Equality and Law Reform, with whom responsibility for liquor licensing law resides. Mr. Paul Murray attended at an early meeting of the former sub-Committee to outline the current licensing provisions and their origins and Mr. Michael Walsh provided information to the Clerk to the Committee in compiling the report. Thanks are also due to Ms. Carol O’Kennedy B.L., a specialist in licensing law, who also advised the Clerk to the Committee on particular, and often complex, licensing provisions which are addressed in the Report.

1.15The sub-Committee is also grateful to all of the bodies, groups of persons and individuals who made submissions and who supplied information to it.

Request for Debate in the Oireachtas

1.16Pursuant to the Standing Orders of Dáil Éireann and Seanad Éireann, we request an early debate of our report in the Oireachtas.

Part 2: Summary of Recommendations

In tis Report we make a number of recommendations, some for change, some for the preservation of existing provisions in liquor licensing law. We list in this part a summary of our recommendations which may give a general impression of our work.

Each recommendation is arrived at after a discussion, in the body of this report, of the issues which were considered by us and, thus, the recommendations should be read in conjunction with this discussion and not in isolation.

The Liquor Licensing System

Principles Underlying the Liquor Licensing System

1:That any future legislation which seeks to introduce reforms in licensing law should attempt to remain true to clearly stated policy objectives which represent all of the elements of public concern involved in liquor consumption and that there is a strong case for incorporating these principles into legislation.

Liquor Licences

2:That there is a need to identify in law and licence through the Circuit Court certain centres (leisure, entertainment, conference and tourist sector such as interpretative centres, leisure and sports clubs, commercial conference centres, museums, galleries, theatres, etc.) as locations which may serve drink in association with other activities and which are thus different from centres which are licensed to serve drink as their main activity.

3:That the Circuit Court should have sufficient flexibility to issue new retail on-licences in the circumstances we have outlined where the sale and supply of intoxicating liquor is secondary to another activity.

4:That there should be only one type of retail liquor licence and that the limitations on the use of such licence in individual cases should be determined by the attachment of conditions thereto.

5:That licences should not discriminate between types of product (beer, spirits, wine). There should be a generic liquor licence, the use of which in individual cases is determined by conditions attached thereto.

6:That legislation should be introduced which will confer a power on the Circuit Court to attach conditions to licences.

Grounds for Granting Retail Liquor Licences

7:That the present policy of specifically defining the grounds for granting new licences can only work if the Oireachtas periodically revisits the issue.

8:That, pending the availability of accurate information as to the number of licences which exist (and may become available for surrender in lieu of a new licence), the requirement that a licence be surrendered for the issue of a new licence should be retained.

9:That a proportionate nationwide distribution of licences should be an objective of any new licensing system.

10:That the issue of licences on the basis of consumer need should be an objective of any new licensing system.

11:That the one mile rule and the right of objection on grounds of unreasonable detrimental affect or material adverse affect should be repealed but that the requirement to prove demand should be retained.

12:That a one-year amnesty should be introduced (as was done in 1961) for the holders of 6-day licences to convert them into 7-day licences on payment of a fee of £200 and subject to their having held the licence for not less than 5 years.

Licensing Administration

13:That licensing administration should be carried out by just one body.

14:That a specialist “Licensing Court” should be established within the Circuit Court, having permanently allocated judges who can become conversant with a wider range of issues than their schedule currently permits.

Renewal of Retail Liquor On-Licences

15:That the Circuit Court should be empowered to order the temporary closure of premises for a proportionate number of hours, days, weeks or even months in the case of objections which are upheld.

16:That, on application at any time of the year to the Circuit Court based on an objection to the manner in which the premises is being run, the Court should be free, if satisfied of the substance of the complaint, to order the temporary closure of the premises or to impose temporary restricted closing times on its operation.

17:That, as a balancing provision for the extension of permitted hours as proposed, the Gardaí, whether acting alone or at the request of a local authority, should be given authority in law to apply for revocation of licence, temporary closure or attachment of conditions at times other than annual renewal of licences.

Permitted Hours of Trading for On-Licences

Reasons for Controlling Trading Hours

18:That total deregulation of hours of trading is not appropriate at this time.

Structuring Trading Hours Controls

19:In the interests of simplicity, the Committee is in favour of a trading hours system which does not require the obtaining of exemptions on a wide scale.

20:That the Government should adopt a programme for studying trends in alcohol consumption and should make these publicly available as a basis for debate and discussion on future policy directions.

Views on Reforming Current Trading Hours

21:That the differentiation between summer and winter closing time should be removed and the same closing times should operate the whole year around.

22:That closing time on Sundays to Wednesdays should be 11.30 p.m., with 30 minutes drinking-up time.

23:That closing time on Thursdays, Fridays and Saturdays should be 12.30 a.m., with 30 minutes drinking-up time.

24:That the present opening time of 12.30 p.m. on Sunday morning remain unchanged.

25:That the present closing time between 2 p.m. and 4 p.m. on Sunday afternoons be abolished.

26:That there should be no change in the prohibited hours on Good Friday.

27:That there should be no change to the law concerning opening hours on St. Patrick’s day.

28:That there should be no change to the law concerning opening hours on Christmas Day.

29:That closing time on New Year’s Eve and the eve of a bank holiday should be 12.30 a.m. (including where it falls on a Sunday), with 30 minutes drinking up time.

Extended Trading Hours

30:That the requirement that an on-licensed premises must be certified as a restaurant in order to obtain special exemption orders be abolished and that a list of statutory requirements governing the operation of special exemption orders be developed to control the manner in which food and drink is supplied under these orders after normal closing time.

31:That there should be no change to the law concerning special exemption orders for private functions.

32:That, in addition to the present requirements governing the conduct of a public dance under a special exemption order, specific provisions be introduced to describe the requirement and the manner of the consumption of food with drink.

33:That the annual limit of six special exemption orders on a day of general or local festivity should be raised to twelve and that, in this regard, consideration be given to issuing to licence holders in each year twelve stickers or notices for display in the window of their premises on such nights as they may elect to avail of such exemptions.

34:That there should be no change to the law concerning the duration of special exemption orders.

35:That applications for special exemption orders be allowed on a three-monthly basis rather than for each occasion as at present, and that the requirement that a representative of the Garda Síochána be present be replaced with a provision that documentary evidence from the Garda Síochána will be acceptable in court.

36:That the statutory prohibition on the granting of special exemption orders in the early hours of Sunday morning be repealed.

37:That there should be no change to the law concerning special exemption orders on Sunday nights/Monday mornings.

Supermarkets and Off-Licences

Liquor Licensing of Supermarkets

38:That amending legislation be introduced to allow the sale of other liquors under a spirit off-licence, as is the case with an on-licence and that existing licences be converted accordingly on renewal.

39:That the grounds for granting new off-licences be amended to provide that in applications for off-licence certificates, it is acceptable to offer either off-licences or on-licences for extinguishment.

40:That the law be amended to allow supermarkets and stand alone off-licences in urban areas where there is a serious shortage of off-licences to offer two on-licences or off-licences from anywhere in the country in order to obtain a new off-licence.

Supermarket Hours of Opening for Non-Licensed Business

41:That, subject to the provision of a shuttered-off area and appropriate signs indicating the permitted hours for the sale of liquor, licensed supermarkets should be permitted to open for their non-licensed business at any time.

42:That, subject to the provision of a shuttered-off area and appropriate signs indicating the permitted hours for the sale of liquor, licensed supermarkets should be permitted to trade their non-licensed business between 2 p.m. and 4 p.m. on Sunday afternoons.

43:That, subject to the provision of a shuttered-off area and appropriate signs indicating the permitted hours for the sale of liquor, licensed supermarkets should be permitted to open for their non-licensed business on Good Friday.

Supermarket Hours of Opening for Licensed Business

44:That supermarkets should be permitted to sell liquor on Sundays from 12.30 p.m. to 11.30 p.m.

Licensed Areas in Supermarkets

45:That the law be amended to prevent courts from licensing only a portion of a supermarket.

46:That the present situation whereby the power of entry of the Gardaí onto the non-licensed portion of a licensed supermarket premises is conditional on the granting of a licence by the land-owner be reviewed with a view to granting the Gardaí power of entry without such conditions.

Off-Licences

47:That, subject to a later closing time of 12.30 a.m. on Thursday, Friday and Saturday nights being introduced for on-licensed premises, the closing time of off-licences on those nights should also be 12.30 a.m.

48:That there should be no change to the present position regarding commencement of section 47 of the Intoxicating Liquor Act, 1988 which, if brought into force, would mean that liquor in supermarkets would have to be sold from specific liquor areas, across specific liquor counters and not generally from open shelves.

Theatres, Hotels, Restaurants and Nightclubs

Restaurants

49:That the Special Restaurant Licence (Standards) Regulations, 1988 be relaxed and re-instated as non binding guidelines for the use of the licensing authority.

50:That the sale and supply of intoxicating liquor in a restaurant having a special restaurant licence should be permitted before, during or after a meal.

Nightclubs

51:That there should be a standards-based certification process in respect of nightclubs to include compliance with requirements of planning, locality, food, entertainment, owner suitability (“fitness”), staffing (“door supervisors”), noise, fire regulation, car parking, etc.

52:That a publican’s licence and a nightclub certificate be required before an application can be made to the Circuit Court to obtain a permit to operate a nightclub.

53:That a nightclub certificate should be issued by a local authority on the basis of standards prepared by it in relation to all requirements other than owner suitability (“fitness”) and staffing (“door supervisors”) which shall be within the remit of the Circuit Court.

54:That a nightclub permit should relate to standards compliance (as evidenced by the certificate), the permitted hours, owner suitability (“fitness”), staffing (“door supervisors”) and, where relevant, a dance licence.

55:That a nightclub permit should be issued by the Circuit Court and that the hours permitted therein should be in the discretion of the Court in each instance.

56:That a nightclub permit and the related certificate should be issued annually, should relate only to the named applicant and should be non-transferable.

57:That Garda and local authorities should be given authority in law to apply for revocation of licence, temporary closure or attachment of conditions at times other than annual renewal of a nightclub permit.

58:That the Public Dance Halls Act, 1935 be amended to include specific provisions controlling the proximity of nightclubs to residential areas and the numbers of people attending them.

59:That “nightclub” should be defined in law along the lines of “an entertainment facility in which the sale of liquor is ancillary or secondary to the provision of entertainment”.

Under-Age Drinking

60:That the Department of Justice, Equality and Law Reform and the Department of Health establish a research group in conjunction with all interested parties to, produce an immediate report on the options and strategies for establishing a national age card scheme.

61:That the maximum penalties for convictions of holders of liquor licences and others for providing liquor to persons aged under 18 years be increased to £500 in the case of first offence and £1,000 in the case of subsequent offences.

62:That, after the implementation of a successful national age card scheme, legislation be enacted to empower the District Court, by virtue of an application by the Gardaí on foot of adequate and proper evidence of under-age drinking, to order the temporary closure of a premises for a period which is proportionate to the incidence of under-age drinking on the premises.

63:That the 1988 Act be amended so as to ban 15 to 18 year olds from bars unless they are accompanied by their parents or guardians.

64:That the 1988 Act be amended so as to permit 16 to 18 year olds to work in licensed premises as lounge staff subject, in particular, to the constraint that they may not serve behind the bar.

Miscellaneous Reforms

65:That approved standards for door-keeping personnel (“bouncers”) be introduced and, in particular, that compliance with such standards should be a condition for the issuing of a liquor licence.

66:That regulations or bye-laws be introduced to deal with the problem of street drinking adjacent to licensed premises.

67:That, in an application for an ad-interim transfer of a licence, the applicant transferee shall be required to obtain from the Court a certificate of good character and fitness to hold an intoxicating liquor licence.

68:That provision be made in law so that a licence may only be issued to a company after the character examination in court of a human person or persons who, either directly or as a majority shareholder(s) in a parent company or companies, owns a controlling share in the applicant company.

69:That legislation be amended to remove the present bar on granting an occasional licence for a Sunday.

70:That legislation be amended to remove the ban on credit sales of intoxicating liquor in certain circumstances.

71:That legislation be amended to remove the requirement to prove rateable valuation of premises in applications for new licences.

72:That regulations be introduced to control the prices charged for non-alcoholic soft drinks in on-licensed premises.

73:That, in relation to the Register of Licences maintained in the District Court Offices, the Register should be up-to-date and should be absolute and capable of being relied on, save only in the case of fraud. Entries in the register should also be accompanied by a map, clearly showing the extent of the licensed area.

74:That the licence form for different types of licences should be clearly identifiable.

75:That, in the case of licences where a doubt exists about the character of the licence, an amnesty should be introduced whereby if the holder of the licence can prove that they themselves or their predecessor in title has operated the licence as a particular type of licence for a specified length of time, that the licence would be deemed to have the character which the District Court Register is giving it.

Part 3: The Liquor Licensing System

Contents

Principles Underlying the Liquor Licensing System

Need for Policy Objectives

3.1.1It is not possible to devise and operate a rational system governing the granting and distribution of liquor licences without having a clearly stated set of policy objectives which the system is designed to serve. No such set of policy objectives has been made before. We consider that the absence of such a set of clearly stated objectives has hindered the development of the present licensing system and has resulted in the emergence of an ad-hoc, confused and unresponsive approach to licensing administration which has not served the public interest.

3.1.2The Committee therefore considers that its first task is to set out a series of statements which attempt to encapsulate the variety of policy objectives involved in the public administration of liquor licensing. From that statement should emerge an awareness of the totality of matters relevant to licensing, an awareness which reflects a wider range of issues than is often at stake in many licensing applications in the courts at present. The challenge presented by the administration of licensing is to attempt, so far as is feasible, to apply and harmonise those policy objectives in every situation.

3.1.3Accordingly we present below a series of statements which we believe represent all of the elements of public concern involved in on-premises and off-premises liquor consumption. We recommend that any future legislation which seeks to introduce reforms in licensing law should attempt to remain true to these policy objectives. Indeed, if the administration of licensing is to be put on a more rational and flexible footing, there is a strong case for incorporating these principles into legislation.

3.1.4In arriving at these statements of policy objectives we have drawn from concerns evident in the existing law, from the principles underlying other systems, from concerns expressed in the submissions made to us and from our own judgement. As will be seen, we merely state the policy objectives and do not, at this stage, examine their significance or indicate how they influence the recommendations we make. However, when this Report as a whole is read, the way in which we have sought to apply these objectives to our deliberations and recommendations should be apparent.

Governing Principles

3.1.5The governing principles of public policy in relation to the consumption of intoxicating liquor are:

(a)the retail sale of intoxicating liquor for on-premises consumption serves an important leisure function and contributes to the enhancement of the national tourism product;

(b)the operators of licensed premises possess constitutionally protected rights in relation to the operation of their businesses;

(c)given that intoxicating liquor involves the use of a drug, the immoderate consumption of liquor can produce a range of undesirable individual, family, workplace and societal consequences from which the individual, the family, the workplace and society should, as far as practicable, be protected;

(d)the public good (see paragraph 3.1.6 below) requires the imposition of licensing controls over the operation and conduct of retail trade in intoxicating liquor;

(e)licensing controls should be rationally constructed and rationally operated in accordance with these principles;

(f)licensing controls should be expressed in legislation and in such a way that they are unlikely to become dated and are sufficiently flexible for future application;

(g)licensing controls should be simply constructed and complexity should be avoided;

(h)licensing controls should require obtaining initial and renewed permission from the State to operate the business;

(i)the criteria involved in granting initial and renewed permission should reflect an awareness of all the matters relevant to the public consumption of liquor and should not be constrained in their scope;

(j)an applicant should demonstrate suitability of premises, fitness of character and professional competence suitability before permission is granted;

(k)the permission process should be publicly open and transparent and should be conducted in accordance with the requirements of constitutional justice;

(l)there should be an individual examination in each case of the effect of the granting of a new licence on all aspects of the public good involved and the onus should rest on the applicant to establish the entitlement to a licence;

(m)the permission process should require evidence of compliance with (but should not involve consideration of) matters which are already covered by other areas of legal control such as workplace safety, building control, fire safety, planning permission and food hygiene;

(n)licensing controls over the retail trade in intoxicating liquor should treat similarly positioned operators equally;

(o)protection of existing operators against loss of business should not be an aspect of public policy in relation to licensing;

(p)the granting of a liquor licence implies its reasonable use and a failure of reasonable use should entitle the re-taking of a licence after proper procedures are followed and without payment of compensation.

Serving the Public Interest

3.1.6The aspects of the public good which are involved in the consideration of whether to grant a licence are:

(a)Public:

(i)curtailment and avoidance of public disorder and criminality;

(ii)avoidance of public drunkenness and the misuse of alcohol;

(iii)protection of the young;

(iv)education of the public in alcohol consumption;

(v)avoidance of drunken or dangerous driving.

(b)Economic / Social / Health:

reducing the adverse impact of liquor consumption on individual health, family well being, attendance and performance in the workplace, the health services and the economy.

(c)Neighbourhood:

avoidance of nuisance, disturbance and disruption arising from the operation of the licensed business.

(d)Consumer:

(i)prices charged for intoxicating liquor should be reasonable;

(ii)market should be consumer-driven rather than controlled by the trade;

(iii)provision of internal and external consumer facilities which comply with these principles;

(iv)provision and availability of transport to bring consumers safely away from the premises.

(e)Licensee:

(i)creation of trading conditions which seek to ensure a reasonable return for the licensee and which obviate tendencies for illegal or undesirable trading;

(ii)avoidance of excessive competition between licensed premises.

(f)Consumption:

prices can be legitimately used to discourage excessive consumption of liquor;

(ii)anything which might artificially and unduly stimulate consumption and thereby encourage consumption should be avoided.

(g)Distribution and Artificial Monetary Value of Licences:

(i)rational distribution of licensed premises around the country, which should be based on need, however defined, and should avoid both excess and scarcity of licensed premises: sufficiency of licences in an area should be a reason for refusing a license and paucity of licences should be a reason for granting one;

(ii)avoidance of artificial values in liquor licences and the removal of the requirement to extinguish one or more licences in order to obtain a new licence.

(h)General:

(i)ease of Garda inspection and enforcement of the law;

(ii)promotion of eating and drinking;

(iii)ease of access by emergency services to the premises;

(iv)methods of public transportation to and from the premises.

Liquor Licences

Scope of Liquor Licensing Laws

3.2.1At present there are approximately 25 different types of retail liquor licences. Ten are granted by the Revenue Commissioners by virtue of court certificates, twelve are granted by the Revenue Commissioners without any court certificate and three are granted by ministerial orders. Most of these retail licences are listed in the Finance Act, 1910 while others, such as those for airports, aircraft, the National Concert Hall and Busáras, were created subsequently in other legislation. The 1910 Act was not flexible enough to allow a ministerial or Revenue power to create or issue new licences. Thus the need for express legislation in these cases.

3.2.2In our view it should not be the case that, every time a deserving case for the granting of a new retail on-licence arises, it is necessary to enact legislation to create a new licence. Considering the pressures on parliamentary time and the difficulty of initiating any legislation, it simply does not merit legislative time to deal with the question of whether some specific instance requires the granting of a liquor licence.

3.2.3Clearly there should be some mechanism for responding to deserving cases without recourse to special legislation. We received a submission regarding a licence sought for a new heritage centre in Tullamore. Under present arrangements it may prove difficult if not impossible for such a centre to obtain a licence. Yet, this is exactly the sort of situation which the law should be able to cater for. The Bar Council also made a submission to the effect that licences are not, but should be, easily available for bona fide museums, galleries, cultural centres, bowling alleys, interpretative centres, cinemas, outdoor sports stadia, conference centres, community centres and entertainment centres. While we do not necessarily agree with all these suggested establishments we do agree that there are deserving cases which are left outside the system at present.

3.2.4It is important for us to state, before making any recommendation for the wider availability of liquor licences than is the case at present, that we see a clear distinction between those venues where the consumption of liquor is the principal activity and those venues where the consumption of liquor is secondary and subordinate to the main activity for which the venue exists. It is the latter type of venue which we regard as the “deserving cases” not currently catered for in the licensing system and where the non-availability of a drink has, in some cases, become an anomaly and in others a disincentive to the development of the main activity concerned. Nor do we consider that the licensing of such venues, if effectively prescribed, administered and policed, will represent any threat to the existing trade in intoxicating liquor.

Processing of New Licence Applications

3.2.5We favour the view that the system for granting liquor licences should be flexible enough to respond easily to deserving cases such as those we have outlined. All that should be required in such cases is the making of a meritorious application to the Circuit Court. The application should then be processed in the normal way, according to the policy objectives and public interest issues we have proposed and with whatever conditions (see below) attached to the licence as are deemed appropriate.

Types of Liquor Licence

3.2.6Furthermore, there is no reason why there should be so many different liquor licences. Such an array of licences is confusing and contradicts the policy listed earlier that a liquor licensing system should be as simple and uncomplicated as possible. If the differences between the present types of licences really only relate to differences in what can be done under each licence, then it seems to us preferable to represent these differences through conditions attached to a single type of licence rather than through numerous different licences.

Conditions Attached to Licences

3.2.7This raises the issue of attaching conditions to retail licences. At present neither the courts nor the Revenue Commissioners have the power to attach conditions to licences. As an alternative, the practice of applicants in court giving what are euphemistically called “undertakings” has emerged. In itself the breach of an undertaking carries no legal weight, but it can constitute evidence of want of faith by the applicant and can go to showing that he or she is not of good character and therefore should be denied a renewal of the licence.

3.2.8It is, in the view of this Committee, a nonsense that the licensing authorities have their hands tied and do not enjoy the right to attach conditions to licences. This is clearly inconvenient because it denies to the licensing authorities the flexibility to mould a licence to individual circumstances. If such a power was conferred on the authorities it would better enable them to ensure that their concerns regarding the subsequent operation of the licence will be adhered to.

3.2.9We therefore have no hesitation in recommending that legislation should be introduced which will confer a power on the Circuit Court to attach conditions to licences. The issue of the nature, extent and breach of those conditions will be considered later.

3.2.10There is further importance attaching to the question of a power to impose conditions on licences. If our recommendation that there should be only one type of retail liquor on-licence is accepted, it will be necessary to create a power to attach conditions to that licence in order that the licence can reflect the differences which exist at present between the various types of licence.

Types of Conditions

3.2.11This brings us to the issue of the types of conditions which should be attachable to licences. In our view the conditions should relate, inter alia, to the following matters:

(a)restrictions on types of liquor;

(b)restrictions/exemptions which are in addition to statutorily permitted hours;

(c)consumption with food and/or meals;

(d)consumption with theatre entertainment;

(e)consumption with accommodation;

(f)consumption with other statutorily recognised activity;

(g)sales for on/off-premises consumption;

(h)sales via public bar/residents-only bar/dispense bar;

(i)sales to residents only/visitors/general public;

(j)sales in whole/part of buildings;

(k)access via street/interior;

(l)no local/national advertising of liquor sales.

3.2.12Most of these conditions reflect the differences which exist at present between the different types of licences. A few do not. Having signalled the matters we consider should be the subject of conditions attached to licences rather than being prescribed in law, we would draw attention to a number of points in relation to the following areas of licensed activity:

(a)the condition that sales take place in conjunction with entertainment is intended to replace the theatre licence issued under the Excise Act, 1835;

(b)the condition that access to the area where liquor is provided must in some cases be through the interior and not directly from the street is intended to apply to hotels or other types of accommodation provider where the licensing authority consider that the only liquor permission that should be offered to the establishment is one which allows non-resident as well as resident sales but seeks to limit non-resident sales in some way by requiring access to the bar through (say) the hotel lobby;

(c)the condition requiring the consumption of food and/or a meal with liquor could replace one aspect of the existing special restaurant licence.

and we amplify our views on the operation of these conditions in particular circumstances in a later part.

3.2.13It will be noted that we have not included in the list of conditions any provision for the attachment of general conditions governing licensed (permitted) hours, other than in respect of restrictions or exemptions thereto. We believe that the “hours” issue is one which should continue to be prescribed in statute law and we will deal with it later.

Transition to Conditions-Based Licences

3.2.14As to when the different conditions which we recommend should be imposed, we would leave it to the discretion of the Circuit Court in each case to make that decision. In the transition period from the old licensing regime to the new one, we would, however, expect that the Court would ensure that all existing establishments would receive whatever conditions would enable them to continue the type of trade they had before then.

3.2.15In the new licences which the Circuit Court issues thereafter, we would expect the Court to have full power to issue licences and conditions in whatever format it wishes, taking full account of the need to ensure that the conditions are fully clear and obvious on the licence and contain no potential for the type of confusion and consequent difficulties which, as a number of submissions have made clear to us, have arisen, not least in relation to the difference between the various licences which hotels can hold.

Grounds for Granting Retail Liquor Licences

The Current Grounds

3.3.1A present there are thirteen different grounds on which the Circuit Court can grant a certificate of entitlement for the sale of intoxicating liquor. Six grounds were established in the 1902 Act, one in the 1927 Act, two in the 1943 Act, one in the 1953 Act and two in the 1960 Act. The most recent ground was created in the 1988 Act. The grounds include-

(a)premises licensed within the previous five years,

(b)new hotels,

(c)railway refreshment rooms,

(d)premises with expired leases,

(e)a 25% increase in population of parishes in urban areas,

(f)enlarging premises,

(g)reduction of on-licence to off-licence,

(h)destroyed premises,

(i)more suitable/convenient premises in rural areas,

(j)licensed premises acquired by local authority,

(k)new licence in a rural area,

(l)demolished premises, and

(m)special restaurant premises.

3.3.2There are significant shortcomings in all of these grounds for granting new licences. However, we do not consider that the solution to the difficulties affecting the administration of licensing in Ireland lies in the mere statutory improvement of these grounds. We believe the solution lies elsewhere, in the use of wider more discretionary language in the legislation and also, as will be seen shortly, in the manner in which the administration of licensing is constructed.

3.3.3We further consider that if the Oireachtas were to attempt reform of the existing grounds only, it would merely be sowing the seeds of future failure of licensing law to meet legitimate social needs.

Historical Development of Grounds

3.3.4We now outline the reasons why we do not recommend the mere reform of the existing grounds. In doing so, we refer to the general history of licensing in Ireland because we believe there are important lessons to be learned from this and particularly from the way past legislatures have dealt with the grounds for granting new licences and the manner in which these grounds have been created. These lessons have lead us to the conclusion that the present approach has not been successful.

3.3.5For much of the latter part of the last century it was obvious that legislation was needed to deal with the grounds for granting new licences because too many licences were being issued. It was also clear during the same period that licensing law had grown complex and convoluted and was increasingly difficult to implement in a rational way. Calls for reform were, for various reasons, ignored until 1902 when parliament passed the Licensing (Ireland) Act. The legislature did not respond quickly.

3.3.6The six grounds for granting new licences created in 1902 were in obvious response to conditions in society existing before then and assumed to apply afterwards. Presumably, they were thought to include all deserving instances at the time. Of course those conditions in society did not remain static. Urban and rural development and change continued apace. Demographic change also occurred. Yet the legislature did not return to this issue until 1943, over 40 years later, when it added two more instances for granting licences. Thus whatever changes took place in society and in its demography and whatever new deserving situations arose were simply not accommodated by the legislation.

3.3.7What was done in 1943 did not meet all needs because, in 1956, a Commission of Inquiry was established to look into the generality of the licensing code. Thus in a mere 12 years, while the country was in one of its more depressed and unchanging periods, there was still sufficient concern over licensing matters that it was necessary to take the unusual step of establishing a Commission of Inquiry. Legislation followed the Commission’s report in 1960 leading to the creation of two new grounds for granting new licences, the nature of which reflects conditions existing in the 1950’s, not the 1990’s.

3.3.8Apart from some modification in 1962 to existing grounds and apart from the case of restaurants introduced in 1988, nothing has been done as regards the grounds on which new licences are granted. A full thirty six years have passed and nothing has been done to ensure that the distribution of licensed premises is adequate for current needs.

3.3.9Thus there have been long periods both in the last century and in this century when the legislature has not touched the licensing code and has left it to the tender mercies of those who are subject to it, namely, the courts, the licensees, new entrants and licensing lawyers. During those periods it seems incontrovertible that the laws did not meet all deserving needs.

3.3.10The existing grounds are therefore now an amalgam of reasons reflecting social and other conditions existing in 1902, 1927, 1943, 1953 and 1960. In itself, and almost without consideration of other circumstances, this alone amounts to an indictment of the present system for granting new licences.

3.3.11But there are other circumstances which reinforce the point. The evidence lies in a number of areas, one of which is the way the courts have been under almost continuous pressure from licence applicants to re-interpret existing provisions or to unearth and reshape old ones to cater for current needs.

3.3.12For us the lesson to be drawn from all this is that the existing policy of enshrining the reasons for granting new licences in specific statutory language has not been successful. The experience during this century is that legislation will not cover all existing cases, as it should do, it will not be altered quickly enough or at all, when it should be and the system for licence granting will be brought into disrepute.

Less Prescriptive Grounds

3.3.13The alternative approach which we favour is that the grounds for granting new liquor licences in licensing legislation should only be generally expressed and should not be prescriptive, that is, the legislation should not attempt to lay down mandatory grounds for granting new licences. All that the legislation should do is set down the relevant criteria for granting new licences and then leave it to the Circuit Court to determine their application. The criteria we would suggest are broadly the list of policy objectives set out at the start of this report.

3.3.14We believe that this offers the only viable approach to future licensing and is the only way we can ensure that the licensing grounds do not become captive to the past and can be used for all existing and future cases.

3.3.15We recognise that this may seem a radical suggestion and do not make it lightly. We believe we must learn the lessons of history, something which has not been done before now. The central point has remained constant both before and during this century and that is that legislatures have not shown themselves sufficiently interested in licensing matters to return to the subject as often as the specific approach of mandatory listing of grounds for new license requires. We see no reason to believe that the position in the future will be any different if the present approach is persisted with.

3.3.16We also recognise that, in order for our suggestion of listing the applicable licensing criteria in general terms to work, there will have to be confidence in the Circuit Court that it will discharge its functions in a proper manner and, particularly, that it will not succumb to the inevitable pressure to issue too many licences. We are conscious of the experience of the last century between 1833 and 1902 when there was so relaxed an approach to licence granting that too many licences were issued at a time of falling population. We have no desire for a repeat of that and would be concerned if our suggestions were to lead to a similar result. It is clear therefore that the structuring and operation of the Circuit Court will be a crucial matter if our suggestion is to be workable.

3.3.17Before turning to that question we want to address the specific issue of in-pocket licences which was raised in submissions made to us.

In-Pocket Licences

3.3.18A number of persons complained to us about the renewal of on-licences where no trade or real trade is carried on during the licensing year in the premises - the so-called “in-pocket” licences. We agree that once a licence is issued it should be used and if it is not used it should not be renewed. But we also recognise the reason it can be advantageous for a person to wish to keep alive such a licence, namely, the hope of being able to effectively sell it some day to someone who wishes to extinguish it in order to obtain a new licence at some other location. The reason for the in-pocket licence, therefore, is connected to the need to extinguish it for a new one.

3.3.19There is however no reason in logic why it should be necessary to extinguish a licence in order to get a new one. We do not see any natural link between the two ideas. The link is only there because of the tightly controlled legislative policy, operated for most of this century, of ensuring that the number of licences in the country did not exceed the number issued in 1902.

3.3.20We recognise, nonetheless, that to abolish the necessity to extinguish an old licence in order to get a new one would be a radical step which would undermine the very structure of the present system, whatever our reservations may be about it. Such a step will undoubtedly be a part of a gradual migration to a more coherent and responsive system of licensing and what we propose elsewhere in this report concerning licensing administration, grounds for licences and the licensing of certain new categories of premises will, we hope, form the first building blocks in such an approach and will lead to a position where the surrender of a licence is neither a necessary legal requirement nor an attractive means of entry into the retail trade.

3.3.21In view also of the fact that little or no information is available to us concerning the number of licences issued prior to 1902 which are still in circulation in one form or another and which, whether we like it or not, represent a valuable interest to the licence holders who maintain them, we reluctantly conclude that this should remain as an element of the licensing system for the time being.

Geographic Distribution of Licences

3.3.22Another significant circumstance, it seems to us, lies in the fact that the very uneven pattern of distribution of publicans licences around the country which existed in 1902 has not changed very much in the intervening period despite the massive demographic changes which have occurred. There is still the same over-supply of licences in many small rural communities and a gross under-supply in newer areas, particularly around the larger cities. This imbalance is one of the first which should be addressed in devising any new licensing system.

Demographic Trends

3.3.23As we have already observed, the licensing system and the underlying licensing code date not only from a time of falling population in Ireland but also reflect a distribution of the population as between urban and rural areas which is no longer prevalent. In short, the consumer numbers in extended suburban city areas now far exceed what might have been envisaged in 1902 or earlier, while the numbers in country areas have declined dramatically. No single change has been made to the licensing laws which might take account of this and, as we have shown, certain provisions actually presume that the opposite is the case.

3.3.24The distribution of licences in the newer suburbs to the west and south-west of Dublin illustrate well how legislation has failed to meet legitimate demand. In the Tallaght village area, we understand that there is a severe shortage of public houses for a population which exceeds that of many major rural towns in Ireland, most of which have an abundance of licences. By any standard this is a grossly inadequate provision.

The “One Mile” Rule.

3.3.25One reason for the inflexibility of the licensing system as it stands is, of course, the “one mile rule” as it applies in rural areas. This provision alone (which, if introduced today, might well fall foul of constitutional challenge) has served to artificially increase and maintain the re-sale values of licences and licensed premises which are clustered in rural areas of declining population while preventing any natural development of additional premises in areas of population growth.

3.3.26Allied with this provision has been the right in law of existing licensees to object to an application under section 13 of the 1960 Act for the establishment of new licensed premises on grounds that it would be unreasonably detrimental or would have a material adverse effect. This is an anti-competitive provision which compounds, to an excessive degree, the separate (and more reasonable) requirement to prove demand in establishing new premises and applying for a licence in respect thereof.

3.3.27We have no hesitation in recommending the abolition of these provisions while retaining the requirement to prove demand.

Six-Day Licences

3.3.28In the variety of retail on-licences which exist, it has been brought to our attention that the continued existence of one particular type, namely the six-day licence which precludes any Sunday trading, is no longer representative of the conditions which apply in the licensed trade. We agree that this is an anomaly which should be regularised by permitting these licences to be converted into full 7-day publican’s licences.

3.3.29We realise that, in doing this, we are creating a means whereby a licence which currently has a market value far below that of an ordinary licence, may be converted into a licence of equal value. We do not wish that any speculative activity should occur on this basis between the time of our recommendation and any legislative action which may be taken to implement it and, accordingly, we recommend that an amnesty be granted for a period of one year, subject to the requirement that the licensee applying for the conversion must have held the licence for not less than 5 years prior to the date of application.

Other Considerations

3.3.30Finally, and if it will be helpful for us to give some idea of features in the present system which we would hope not to see repeated in any new one, we highlight the following features of the present system which we consider should not be there as mandatory elements in a national policy. We do not exclude them as being always unnecessary. Rather we would expect the Circuit Court to consider all aspects of a particular application and, if it felt necessary, either include or ignore one or other of the following features:

(a)It should not always be necessary to extinguish either one or two existing licences in order to establish a new licence.

(b)The use of existing county borough, urban district council or town commissioners boundaries, parishes or District Court areas should not be factors in determining the issuing of licences.

(c)The use of written fixed geographical distance into licensing legislation, such as one mile by the shortest public thoroughfare should not be a factor in determining the issuing of licences.

(d)There should be no attempt in law to protect existing licensees from new competition

(e)Legislation should not limit the range of persons who can object to licensing applications, but that such objections may be accommodated through a third-party such as, for example An Garda Síochána or a local authority, for whom we propose a specific right of application to the Circuit Court.

Licensing Administration

The Current System

3.4.1The licensing authority for the issuing of new retail on licences is split, in most cases, between the Circuit Court and the Revenue Commissioners. The Circuit Court is the more important player in that once it issues a certificate of entitlement to a new licence the Revenue Commissioners must issue the licence and cannot generally refuse to do so.

3.4.2It is difficult to see the case for the involvement of two bodies in the process of granting new licences. If the legislation and the licensing system are to kept as simple and uncomplicated as possible, which in our view it should be, the case for just one body to act as licensing authority seems to be strong.

3.4.3The reasons there are two bodies appear to be historical. The Revenue Commissioners have always been involved in licence granting and in gathering State taxes and duties. The courts only became involved afterwards. They were involved by legislatures, particularly from 1833 onwards, in order to provide a forum where public concerns over aspects of the operation of new licensed premises could be considered. That is still the policy basis for the involvement of the courts.

3.4.4The Revenue Commissioners have at their disposal a wealth of experience and information relating to their administration of the present system. Their expertise in the matter is beyond doubt. For reasons of expediency on both sides, and due to pressure of time, we were unable to canvass the Office of the Revenue Commissioners for their views in a manner which a full review of the liquor licensing laws would warrant. We understand, however, that the Revenue Commissioners propose to convey their detailed views directly to the Minister for Justice, Equality and Law Reform for consideration in conjunction with this Report.

3.4.5While we cannot deny the dual nature of the licensing process - its tax/duties gathering aspects and its public concern aspects - we believe that it does not require two bodies to deal with both elements. Bearing in mind our policy principle that the whole licensing system should be as simple as possible we consider it preferable that there should be one body only which deals with all licensing matters and that prospective and existing licensees can go to it in order to establish their entitlement, pay their duties and receive their licence.

The Licensing Authority?

3.4.6This brings us to the issue of which body should be constituted as the licensing authority. Since the Revenue Commissioners have never been involved in the public concern aspect of licensing, it does not seem appropriate to suggest that they should perform the task.

3.4.7There appear to be two options -

(a)entrusting licensing administration to the courts, presumably the Circuit Court since we have heard no criticism of how it has discharged its existing functions (as opposed to whether its terms of reference have actually assisted or hindered it in discharging its functions - this is an important difference which we shall return to shortly), or

(b)establishing some specific licensing authority.

The Circuit Court as the Sole Licensing Authority

3.4.8There is considerable merit in the suggestion that the Circuit Court should be the sole licensing authority for the granting and renewal of retail on-licences in the State. The Court has considerable experience in these areas and appears to command support and respect among applicants, objectors and the general public for the manner in which it has discharged its statutory functions to date.

3.4.9However it is not clear how much of the Circuit Court’s success has been due to the fact that it is a Court of relatively high status where decisions are arrived at with all the evidential deliberative and qualitative exactitude common to the judicial approach, or whether its success has been due to the fact that its decisions are arrived at after full and comprehensive consideration of all the day-to-day practical issues which are relevant to the establishment of new retail on-premises for public drinking. We suspect more the former than the latter.

3.4.10It seems to us is that, in licensing matters, the Circuit Court has never been given a free hand by the legislature to deal with all the public policy issues involved in licensing applications which come before it. If it is never to be given such freedom, we do not believe it can, in future, deal effectively with all the issues it should be dealing with.

3.4.11The reasons we consider that the Circuit Court has had its hands tied in dealing with applications for new licences are as follows: Starting with the 1902 Act and continuing through to the 1988 Act, the legislature has always pursued the policy of defining carefully, precisely and specifically the criteria relevant for licensing applications which the Circuit Court then applies. That has been the Court’s sole task. The Circuit Court has never chosen these criteria because it has never been able to. The legislation has generally been expressed in rigid terms which place an undesirable premium on terminological precision and exactitude. We do not think it is too strong to say that the legislature has not trusted the Court to use its own judgement to decide applications within broadly set parameters.

3.4.12We recognise the reason for this reluctance. It is born of a suspicion of what the courts might allow if they had a generally expressed power of granting new licences. This suspicion results from how the licensing magistrates in many parts of the country behaved in the nineteenth century. But that experience was with magistrates and not all magistrates at that. We also understand that, in Dublin and Belfast for much of the nineteenth century, the licensing role was performed by the recorders of those cities and that the resulting position was generally satisfactory. We note that the licensing function now does not rest with the District Court, the successor to the magistrates, but with the Circuit Court, the successor of the recorder. Thus we are doubtful of how much continuing credence should be paid to the nineteenth century experience.

3.4.13Another factor in favour of the Circuit Court constituting the sole new licence granting authority is that there is likely to be only a minimal added public expense (which we have not attempted to quantify) in so constituting it. The number of applications for new licences each year is not so great that transferring the issuance of the licence document itself from the Circuit Court would amount to much extra work.

3.4.14We recognise, however, that difficulties would arise with the renewal of liquor licences since, in September of each year, the Revenue Commissioners have to process an enormous amount of paperwork in this regard. However we also have views on this area which we outline later and which we think deal with that matter and still permit constituting the Circuit Court as sole licensing authority.

Disadvantages to Constituting Circuit Court as Sole Licensing Authority

3.4.15The manner in which the present licence-granting legislation is drafted and applied uniquely suits the involvement of the Circuit Court in the licensing process. As already indicated the language used in the legislation is prescriptive, limited, precise and carefully chosen. The interpretation and application of such language to individual situations is the kind of task for which judicial training, experience and capabilities are best suited. The Judge has merely to take the precise wording and see whether it matches the evidence. Occasionally the wording is vague or too short or the provision is out of date and then the Judge has to call on other tools of linguistic and contextual analysis to reach a view on the legal position. In that instance also, it is not the merits of the situation which decide the eventual outcome. It is sometimes esoteric and necessarily abstruse legal reasoning which decides it.

3.4.16We have already come to the conclusion that it is the use of the statutory technique of attempting to finely prescribe in a mandatory way the grounds for granting new retail licences which is the cause of the continuing difficulties with licensing law. Not only has the law not been updated but it has been written in a way almost calculated to ensure it goes out of date as quickly as possible.

3.4.17This, we believe, helps explains another undesirable though understandable feature of licensing in Ireland, namely, the resulting pressure to which the courts have been subjected by existing and aspiring licensees to re-mould existing provisions to serve new purposes, to unearth long-forgotten provisions in the hope they may be of use and to interpret the legislation in ways which were, in many cases, unlikely to have been within the legislative contemplation when the provision was first enacted. The courts have been used to redress the failure of the legislature to modernise the law. The veritable history of case law surrounding licensing bears ample testimony to this.

3.4.18This is not a desirable state of affairs. Not alone has the legislature failed in its constitutional duties but, except for the few specialist practitioners, the law has become dense and impenetrable to judges, lawyers and licensees. There is evidence that judges particularly are reluctant to face into the mysteries of licensing law and have allowed questionable applications as a result. There is a belief that a good licensing lawyer can get results which another lawyer might not. We believe that it is undesirable to have a licensing system which is so top heavy legally speaking that either legal interpretation or legal expertise should be able to make the difference between success or failure. The process should be far more transparent and less legalistic than that.

3.4.19Therefore the question we have to address is whether, under the alternative statutory approach which we suggest (listing only generally expressed criteria in law and leaving it to the licensing authority to apply them in each case), best results would be achieved by the courts or by some other body.

3.4.20In this regard we note the courts are already entrusted with a similarly expressed jurisdiction under the Public Dance Halls Act, 1935. This Act entitles the granting of public dance hall licences and provides only the most vague and generally expressed criteria for determining applications. Thus when the Circuit Court Judge comes to hearing an application he or she is not constrained by the legislation into taking an artificial approach to the merits of the application, nor is he or she forced to conduct a minute examination of the meaning of the words which express the criteria. The Judge is fortunately unencumbered by the way the legislation is expressed. That is how it should be.

3.4.21But given that the statutory discretion is so wide, it is an important question for us to consider to what extent the Circuit Court Judge is actually able to avail of the wide discretion which the legislation provides. In that regard we have our reservations. The Judge can only usefully achieve the objectives of the legislation if he or she is able to meaningfully consider all that is listed in the Act. Unfortunately, the Court is not well equipped with the resources necessary to achieve this. The Judge is uniquely dependant on the parties - applicants and objectors - producing evidence. He or she cannot go out and collect it. If the parties do not produce such evidence it must be very doubtful if the Judge could still refuse the application because he or she has doubts but cannot point to any evidence in court to support them.

3.4.22We consider that much the same would happen if licensing legislation was changed to simply give the Circuit Court an unfettered discretion to determine licensing appellations. The Court would probably end up dealing only with issues raised by the parties. Issues not raised by the parties would be ignored or, more significantly, where there are no objectors, there might be very little the Court could do other than grant the application. Too much would depend on whether objectors appear and yet, at present, the fact that they do not appear is no indication that the application is a meritorious one. There can be many reasons why objectors do not appear, the exposure to high legal costs being a major one. The restrictions in the current law on who can object are another reason.

3.4.24Liquor licensing is, of course, only one of a wide range of matters in respect of which a Judge of the Circuit Court is required to be fully briefed and up-to-date. Unfortunately, while it is also one of the most complex, it tends to be re-visited only periodically because of the intermittent nature of applications for new licence certificates and renewals appeals. We consider that a greater level of specialisation on the part of the courts would benefit the development of a licensing system which takes account of all of the matters which are of public concern.

3.4.25Thus, something further requires to be done to ensure that all issues would be fully considered in a court hearing if the Circuit Court is to be established as the sole licensing authority. We therefore propose, in addition to the designation of the Circuit Court as the sole licensing authority, that a special division of the Circuit Court should be established, composed of judges who are (or may become) familiar with the widest possible range of relevant issues which require to be brought to bear on licensing applications and renewals.

3.4.26In a later part we refer to the licence renewal procedure which is a function of the District Court. We would envisage that this function should also be vested in the Circuit Court within the framework we have proposed here.

An Alternative to the Circuit Court as a Liquor Licensing Authority

3.4.27It seems to us that an alternative to our recommendations concerning the Circuit Court would be the establishment of a national liquor commission or authority which would be entrusted with all matters affecting licensing and would make its decisions by applying non-mandatory and generally expressed criteria such as those we have recommended earlier. Such an authority would not be limited to determining applications through its own experience and judgment and by reliance on information supplied by interested parties. It would be able to conduct local hearings on applications, along lines similar to the way planning hearings operate. It would be able to commission independent studies of the issues and make these available to all the parties. It would publish all its decisions and include written judgments in order that future applicants can get an impression of how it approaches its tasks.

3.4.28To ensure consistency in its decisions, such an authority would have to be a national one but, like the Employment Appeals Tribunal, could conduct regional hearings. Its composition should reflect a balance between all interested parties and it should appoint an independent, legally qualified chairperson.

3.4.29We do not recommend such a radical departure at this time. We favour a process of gradual change such as we have outlined throughout this report. We state these options here for the purpose of adding to the value of the debate which may arise in relation to whatever changes are implemented in the future.

Ministerial Involvement

3.4.30There is one further feature of such a licensing system which, although we do not make any recommendations regarding it now, we feel should be discussed in brief.

3.4.31Since there would be an inevitable uncertainty as to how exactly any new system would work, we think it prudent that the Minister for Justice, Equality and Law Reform should retain some safeguard powers which could be called upon in case the Circuit Court (or any other licensing authority) is shown to be too lenient in its activities. There are two ways in which this can be done:

(a)by enabling the Minister to issue guidelines which the Circuit Court (or any other licensing authority) should take account of, while still preserving its separate and independent role;

(b)by enabling the Minister to make regulations addressing any aspect of the licensing process including, if necessary, prescriptive rules concerning matters such as the location of new premises. That too could be useful in cases where there is public concern, as quite clearly there is from the submissions made to us, over the location of new licensed premises, especially in or near residential areas.

3.4.32Beyond this we do not feel we need to go at present. We believe we have recommended a sufficiently wide and flexible framework for determining licensing issues and one which seeks to address the difficulties which exist as we see them at present. Thus it is not necessary for us to address the multitude of defects in the present grounds for granting licences.

Renewal of Retail Liquor Licences

3.5.1Most retail licences last for one year and expire on 30 September. They are renewed by the Revenue Commissioners directly without court intervention, in most cases, on production of the necessary excise duty, an audited statement of turnover and a certificate of tax clearance. Objections can be made to the renewal of a licence on the basis that the business was not properly conducted during the year or that the licensee is no longer of good character. If notice of an objection to renewal is lodged with the District Court then a hearing into the objection by that Court must take place.

3.5.2There are two elements in the annual licence renewal process-

(a)the peaceable and orderly manner in which the business was conducted during the year, and

(b)the raising of revenue for the State.

We propose to deal only with the former aspect, though what we recommend will have some implications for the revenue aspect also.

3.5.3We have already recommended that a special division of the Circuit Court (to be called “the Licensing Court”) should be established as the sole authority in all licensing matters. In doing so, we envisage that the renewal function currently discharged by the District Court will also become a function of the Circuit Court and our remarks and recommendations herein should be construed accordingly.

Shortcomings of the Current Process

3.5.4When hearing an objection to the renewal of a licence, the choice facing the District Court Judge at present is to either refuse the renewal or to uphold the licence. There is no other action which the Court can officially take, though some judges are known to adjourn hearings in order to impress licensees with the seriousness of the matter.

3.5.5The Gardaí and local residents are likely to be the principal objectors to the renewal of on-licences while, in the case of off-licences, it is likely that the Gardaí alone would be the main objectors. The Garda concern is likely to be criminality, public order and safety generally and the residents’ concern is likely to be noise and nuisance late at night. Another cause of objection can be parental concern over sales of liquor to persons under eighteen years of age. The willingness of private parties to lodge and sustain objections to the renewal of a licence is of course dependant on a willingness to take the risk of hefty legal costs if their objections are unsuccessful and we have little doubt that this is a factor which inhibits residents objecting more frequently.

3.5.6We have little doubt that the renewal and objections system as it is presently constituted does not work well. There are two reasons for this:

(a)The principal reason is that the choice facing all parties in a hearing of objections to a renewal are too stark. The Judge must either take the extremely drastic step of closing the premises or else ignore the complaints. The first choice involves huge financial consequences in terms of the value and investment in the premises, the livelihood of the licensee and his or her family, the employment of the staff, the creditors and the customers. Not surprisingly, judges are reluctant to refuse renewal except for the gravest of situations where the evidence of misbehaviour is overwhelming.

(b)The second involves effectively ignoring most legitimate objections because, however meritorious they are (short of the worst), it is hard to see that they warrant permanent closure of the business. The procedure is then sometimes repeated the next year, as has happened, for example, in Temple Bar over residents’ objections to the renewal of certain licences.

3.5.7This is an unsatisfactory situation. In our view it is not right that residents and others should be condemned to having to put up with nuisance and interference with their domestic lives because the very system for dealing with objections is too crude. What is clearly needed is that the courts should be given the power to impose sanctions which fall short of the permanent closure of the premises.

Closure of Premises as a Penalty

3.5.8We therefore recommend that the Circuit Court should be empowered to order the temporary closure of the premises for a proportionate number of hours, days, weeks or even months in the case of objections which are upheld. This we believe will enable the Court to adopt a more proportionate and just approach to objections and may encourage a level of objections which more accurately reflects the true impact of the operation of licensed premises on their neighbourhoods.

Objections Arising Between Annual Renewals

3.5.9Conferring such a sensible proportionate power on the Circuit Court to deal realistically with objections to renewals does however raise another issue, and that is whether it is necessary to confine the exercise of this power to the annual renewal sessions during the month of September or whether it should be exercisable at any time during the licensing year. If the Circuit Court should, as we recommend, be able to effectively close down licensed premises for short periods as a punishment to licensees for not running their establishments properly and lawfully, why should it be necessary to wait until September each year to do so?

3.5.10We cannot see any reason for this and so we further recommend that, on application at any time of the year to the Circuit Court based on an objection to the manner in which the premises is being run, the Court should be free, if satisfied of the substance of the complaint, to order the temporary closure of the premises or to impose temporary restricted closing times on its operation.

Right of Application to Court

3.5.11We consider this recommendation to be of such importance in the development of a flexible and sensitive licensing system that we believe that an explicit right of application should also exist in law for the Gardaí, whether acting alone or at the request of a local authority, to seek such action by the Circuit Court as is deemed necessary in circumstances where a licence is being operated in a manner which is not lawful or is otherwise detrimental to public order or the principles of the public good which we have outlined earlier.

3.5.12We also anticipate that additional controls will require to be put in place as a balancing provision for some of the recommendations we make concerning opening hours in a later part of this report. The introduction of an increased right of Garda access to the Circuit Court as the sole authority in all licensing matters would, we consider, be a suitable measure in this regard and we recommend that the Gardaí, whether acting alone or at the request of a local authority, should be given an explicit right in law to apply to the Circuit Court for revocation of a licence, temporary closure or attachment of conditions at times other than annual renewal of licences.

Consequential Long-Term Changes

3.5.13We realise that the substance of what we have recommended as regards renewals effectively robs the current renewal process of much of its substance and would mean that in future the only purpose served by renewing a licence every September is the raising of excise income by the State.

3.5.14While we consider it outside the scope of our enquiry to examine the revenue-raising aspect of renewals, we do believe that the system around this can be made easier and more efficient.

3.5.15In the longer term, the following options could be pursued:

(a)Firstly, the option could be introduced for licensees to renew their licence for more than one year on payment of the duty at the current rate, related to current turnover, for the number of years in respect of which the renewal is sought. The advantage of this for the applicant is that he or she is saved the difficulty and trouble of remembering to renew the licence every year, and to do so on time. We have evidence from the Revenue Commissioners that large numbers of licensees do not renew their licences on time. We believe such a measure will help in that regard, especially if a small discount is offered, though we have not attempted to quantify its impact in excise terms.

(b)Secondly, it is inconvenient that all publicans’ licences in the country, approximately 11,000, fall for renewal at the same time each year. It is inconvenient to have to accommodate such a large amount of processing of paper during this short period and the workload could be spread over the year by issuing licences so that they fall for renewal at different times during the twelve months.

Part4: Permitted Hours of Trading for On-Licences

Contents

Introduction

4.1.1The retail trade in on-premises consumption of intoxicating liquor is subject to two methods of control. The first involves the need to obtain a liquor licence and the second involves controlling the times during which the licensed trade can be conducted

4.1.2In many other areas of economic activity which are controlled by legislation, it is enough to obtain a licence and satisfy any attached conditions. The retail trade in on-premises consumption of liquor has always been treated differently in that further controls are then imposed in the form of the prohibited hours.

4.1.3In liquor licensing legislation, the controls are expressed negatively, that is, only the prohibited hours are stated. Thus the need to infer from the prohibited trading hours in order to discover the “permitted” ones. A licence assures the entitlement to trade during “permitted” hours and, if the State then imposes additional restrictions, it is up to the State to specify them.

Reasons for Controlling Trading Hours

Justification for Imposition of Controls

4.2.1Since the prohibited hours involve a restriction on something which is otherwise lawful it is necessary on both policy and indeed constitutional grounds to show sufficient reasons to justify the restrictions. So, the first question we feel we must address is - what is the general justification for imposing prohibited hours on licensed premises? Once this question is dealt with and some justification discovered, we can then look at the other aspects of the “hours” question.

4.2.2It is, of course, true that controlling the number of licensed premises and fixing prohibited hours do seek to achieve the same broad objectives, that is, the minimisation of the misuse of liquor and consequent problems. We have already dealt with the rationale of the licensing system and need now only consider the hours issue, bearing in mind the difficult of totally separating the effects of licensing controls and hours controls.

4.2.3The reasons for controlling trading hours in licensed premises must relate to the potentially adverse and undesirable impacts which the existence of lesser or no prohibited hours might have on different aspects of the public good, such as greater public disorder, traffic hazards, individual health, family difficulties and so on. So far as we are aware no research has been carried out in Ireland on these specific matters and it is a matter of regret that this is so. In the absence of such research we cannot be as definitive in causal terms as we would like to be on the relationship between closing hours and the incidence of liquor related problems.

4.2.4Some of the evidence, particularly from Dóthain, the Department of Health and Children and some of the vintners has referred to the experiences in other countries. These are, of course, relevant and we have to some degree taken them on board. But the culture of public drinking in Ireland is, in our view, somewhat different and requires considerable caution in drawing from the experiences of other countries.

4.2.5Although we cannot be definitive we consider that we can nevertheless deal with this issue under a number of headings, drawing on the experience of hours control in Ireland, relevant international experience and our own judgement and experience as legislators.

Public Drunkenness

4.2.6It is clear from previous official studies of licensing in Ireland undertaken in 1925 and 1957 that the avoidance of public drunkenness was considered to be one of the main objectives of controlling hours of trading. For most of this century however public drunkenness has not been the same problem in was in the last century. Between 1975 and 1994 annual prosecutions for drunkenness have remained roughly between 4,500 and 6,500. These figures are dramatically lower than the figure of 85,470 for all of Ireland in 1870 and 15,339 in 1914, again for all of Ireland. We do not think we can cite the prevention of public drunkenness alone as justifying controlling hours, given also that there is a specific offence which deals with that.

Nuisance and Disruption

4.2.7Another possible ground for controlling hours of trading is the minimisation of nuisance and neighbourhood disruption associated with the operation of licensed premises. We have no doubt that this is a legitimate reason for controlling hours. It is self evident and needs no statistics to be satisfied that the operation of late night bars in or near residential areas can, does and will cause disruption. Not all premises cause, or could cause, such disruption (we do not have any figures on how many premises are in either category). We consider that the potential for disruption is sufficient for nuisance minimisation to constitute a satisfactory basis for controlling hours.

Health and the Moderate Consumption of Liquor

4.2.8The encouragement of healthier life styles and the moderate consumption of intoxicating liquor is also a reason which justifies controlling hours of trading in licensed premises. In citing this as a reason we are very conscious of the need not to support overly paternalistic policies and to accept that each individual person must remain primarily responsible for the time they spend in licensed premises and the amount of liquor they consume there. A number of submissions and witnesses during our oral hearings rightly insisted that we cannot use hours controls to force people to act responsibly towards drinking.

Public Safety

4.2.9Public safety is another reason which may be cited for controlling trading hours in licensed premises. At present it is common experience that the normal operation of licensed premises observing the present hours of control results in road traffic hazards, criminal assaults and general public order dangers. If there were no hours controls at all it seems to us that the present quantum would increase, to what extent we could not say, but that it would happen seems undeniable. There is obvious truth in the proposition that the longer the hours of opening, the more which can be consumed, the more problems which will arise

4.2.10These we consider to be sufficient justification for hours controls, though when it comes to looking at specific times, say, in relation to late night opening, there might be sufficient truth in the view that later hours might not mean more problems but rather the same type of problems occurring later in the night.

4.2.11Nevertheless, it seems to us undeniable that, whatever about claims that later drinking does not equate with greater drinking, the longer the opening times, the easier it is to drink, the more that will be drunk. Thus we do consider that trading hours controls can be justified in terms of the potential effects of no hours controls on the health of the drinking population.

4.2.12Beyond this lies the question as to how exactly the precise hours of control should be structured and whether society generally might be reaching a point where greater trust can be placed in the responsibility of the individual for responsible public house drinking. This is a matter we will come to shortly.

Responsibility for Establishing Trading Hours

History of Parliamentary Control

4.3.1For most if not all, of the recorded history of licensing hours in Ireland, the hours have been set by mandatory national rules laid out in legislation. In other words, parliaments have always written down in legislation what the hours should be. It seems likely that a significant part of the reason parliaments did not permit this to be done by other bodies was the fear or suspicion that other bodies would be too open to influence in the hours they would set and /or too inclined to agree to longer hours than parliament thought desirable or necessary.

4.3.2Another reason is that if the trading hours rules are to be national then parliament is the appropriate body to set them. It might be different if trading hours were to be established through some local mechanism. If our review is to be as comprehensive as it should be then it seems to us that we should address this issue before proceeding to examine the hours of trading.

4.3.3The range of bodies which could be entrusted with the task of setting the permitted hours is:

(a)Local Authorities - Councillors

(b)Local Authorities - Reserved Function

(c)The Gardaí

(d)The Health Boards

(e)Local Fora consisting of Licensees, Gardaí, Health Officials, Councillors, Local Authority and Local Community

(f)The District Court

(g)The Oireachtas

(h)The Minister for Justice, Equality and Law Reform by means of Delegated Legislation

(i)A National Liquor Authority

4.3.4Before considering these options it is worth noting that we received few submissions in this area, reflecting perhaps a general contentment with the present manner of setting the permitted hours. Most concern was expressed over the actual hours. We however believe that one cannot totally divorce the two issues, since the issue of who sets the hours inevitably influences the issue of what the hours should be.

4.3.5The first six options all involve local controls of one sort or another over the permitted hours. The last three are national approaches.

Local Options

4.3.6If a local approach is preferred it is likely that one of the consequences is that there will be variations between different areas in the hours which are fixed. A significant risk associated with such an eventuality would be the movement of customers from early closing areas to later closing ones. While there is a certain amount of this already, due to the fact that certain establishments are able to trade for longer hours under special exemption orders, there is the risk that variations over entire areas could give rise to a much greater movements of persons with consequent dangers to road traffic, among other things. If local variations are to be envisaged great care will need to be taken to avoid this danger.

4.3.7A further aspect of permitting some kind of local approach would be that there would still have to be some national rule as regards the annual period of time the local hours would apply. No matter what regime is chosen local businesses are entitled to a relatively stable trading environment in which they know for a definite period of time what their trading hours will be. This might only be achievable by a national rule which stated that the hours can only be changed every three/four/five years.

4.3.8Assuming for the moment that the risk of variations is judged not to be unacceptably great, one comes to consider the various local options. Each option represents the degrees of trust which, at a national policy level, it is felt the body in question would merit. Each option, national and local, also represents a view of what aspects of hours controls are the more significant. For instance the Garda option reflects the view that public order issues are the more important, while the health board option reflects the view that health matters are the more significant. The local authority and local community options reflects the view that local nuisance and disruption are the more significant.

Local Authorities - Councillors

4.3.9This seems like an ideal option for establishing trading hours in that the hours would be set by the representatives of the people for the local area which is where the effects of the operation of licensed premises are most directly felt. It is however beset by the possibility that local representatives would be too open to influence by vested interest with consequent dangers that they might prove unduly generous or strict with the hours they set. There might also be the danger that there could be too great a change from year to year in the hours they set, reflecting perhaps shifting political fortunes on the council, thus hampering the normal expectation of business concerning the stability of the trading environment.

Local Authorities - Reserved Function

4.3.10Another option would be to confer the power to set the trading hours on the manager of the local authority, acting through his or her professional staff,. This would be a substantial power to bestow on one person and is seems questionable whether the fortunes of the local licensed trade should so depend on the views of one person, even if he or she was obliged to follow some established consultative procedure before setting the hours. It might be possible to refine the option by allowing for the local representatives to control the manager’s actions in some way, perhaps along the lines of the use of material contravention procedure in planning law.

The Gardaí

4.3.11The Gardaí or more specifically the local Garda superintendent could be entrusted with power of setting the permitted hours of trading in the area in question. While one might expect public order and criminality consideration to be paramount in the Garda approach, we do not consider that these are the only considerations and consequently do not think it would be right to entrust such an important power over local business interests to the Gardaí.

The Health Boards

4.3.12It is a novel suggestion to view the health boards as having a potential role in this matter. Yet, from the critical health and safety perspective - which we wish to highlight in this report because we feel it has not been sufficiently represented at either the formal statutory level or the operational level and also because of the recent publication of the first National Alcohol Policy document by the Department of Health and Children - the health board has a vital role to play as regards public attitudes and use or misuse of intoxicating liquor. It could seem logical to allow that role to be exercised directly through controls over the trading hours in licensed premises. Nor does it follow that such control would necessarily be inimical to the present trade. Medically it is acknowledged that liquor consumption serves an important leisure role and one would expect that also to be recognised by the health boards. However no one, including the Department of Health and Children in its recent policy document has actually suggested a role for the health boards in this area.

4.3.13Many of the considerations regarding susceptibility to local influence that apply to the local authority might also apply to the health board, except that one might expect the health perspective to carry more weight. On the other hand, the health boards also operate over larger areas than local authorities and, while there would still be the risk of differing regional hours provoking traffic movements to later venues, it does not appear that it would be as great. It would also seem possible to build a mandatory local consultative process into the way the health board went about setting the hours, involving the trade the public, the Gardaí, tourism interests, the churches and temperance groups and so forth.

4.3.14There are considerable attractions to the idea of involving the regional health boards in the process of setting the hours of trading. However we feel the option requires considerably more examination than we are able to give it.

Local Fora consisting of Licensees, Gardaí, Health Officials, Councillors, Local Authority and Local Community

4.3.15This option also seems attractive at first sight but the difficulty with it concerns the creation of a structure within which the fora might operate. The principle of consultation is a good one but complex rules would have to be worked out as to how exactly the consultation procedure would work and how final decisions would be arrived at. There is also the danger, with so many parties involved, that agreements might not be reached and it would be necessary in that case to have some fall-back rules at national level providing perhaps, if no agreement is reached to change the hours, that the existing ones would continue for the following minimum period of years.

The District Court

4.3.16There are suspicions that the District Court has not proved a reliable body in the way it has operated aspects of its present jurisdiction in relation to trading hours in licensed premises. The areas in question concern the granting of restaurant certificates and special exemption orders, to which we refer later. We cannot of course document specific examples because of the absence of any system for monitoring at a national level how the Court discharges its responsibilities, but the information available to us is sufficiently strong for there to be concern.

National Options

4.3.17There are three possible options for national bodies to set trading hours - the Oireachtas, the Minister for Justice, Equality and Law Reform acting under delegated powers and a national liquor authority.

The Oireachtas

4.3.18It has been the traditional function of the Oireachtas to set mandatory and uniform national trading hours for all licensed premises in the State. What we have to consider is whether we should recommend a continuance of this. There have been clear advantages to this approach to trading hours. The hours have been certain and stable. They have not been subject to much change and that has certainly assisted the licensed trade generally and investment in the trade.

4.3.19The hours have also been uniform, that is, they have been the same throughout the State, especially since the early 1960’s. This has prevented regionalisation and has also prevented, to some degree, the movement of people from early closing premises to later closing ones.

4.3.20But there is a drawback to the Oireachtas setting mandatory national uniform hours. It is a simple one. It does not appear to command widespread support. The general public does not appear to particularly accept them. Nor do many sections of the licensed trade. While we accept that no matter what system is used there will always be a desire among some sections of the public and trade for longer hours, we not believe that this accounts for the way common experience tells us of what people really think of the trading hours.

4.3.21There is constant pressure on the closing hours, as everyone knows, and we believe that, in many instances, this pressure is given in to by either willing or unwilling licensees. It hardly matters. Nor can one rely with certainty on the Gardaí to enforce the law fully. The Garda attitude is that if they receive a specific complaint they will, indeed, must investigate, but if they do not receive a complaint they will not act. If pressed on the point, they will justifiably say that they have other demands on their time and that this is not the highest on their priority list.

4.3.22Therefore we do not think it is simply a matter of ordaining laws and then sitting back and expecting licensees and the public to respect them and the Gardaí to enforce them. That will not happen. The issue has to be addressed realistically and imaginatively. The issue of the demand for longer hours cannot be simply dismissed by the explanation that there will always be people who will want longer hours.

4.3.23After some consideration of the matter we have come to the conclusion that the difficulty in securing public support for the licensing hours rests in part in the manner in which the hours are established, and specifically in the fact that heretofore they have been established by prescriptive mandatory act of the Oireachtas, delivered from on high, as it were, to recalcitrant licensees and drinkers below. The process of creating the permitted hours has involved consultation with the interested parties, but not with those most affected by them and whose attitudes are most likely to determine their success or failure - the consumers of liquor. That is where we believe the problem lies. While one will never gain total public acceptance of trading hours, one is more likely to gain sufficiently greater acceptance for hours which are established only after widespread and meaningful consultation.

4.3.24It is clear to us that if we are to secure public support for trading hours another way of involving the consumer and the general public in their creation is needed and we will address this in our concluding remarks in this section.

4.3.25The Committee is of the view that the Oireachtas should continue to set the trading hours for licensed premises but that it should do so by way of an inclusive consultation process and, as we have already recommended, it should re-visit the issue periodically. We come to this conclusion principally on the basis that there is huge public interest in and concern about these times and thus it is not appropriate for the matter to be dealt with by any other body.

The Minister for Justice, Equality and Law Reform

4.3.26While the Minister for Justice, Equality and Law Reform has been entrusted with some regulation-making powers under the Intoxicating Liquor Act, 1988, in relation to the standards for special restaurant licences, there is no history of so delegating the power of establishing trading hours. It would therefore be a significant innovation to do so.

4.3.27Regardless of whatever consultation process might be followed by the Minister before making the necessary regulations, these regulations would inevitably appear to replicate many of the undesirable features of the present way of setting hours. Consumers would not necessarily feel that they had any input into the process and would not feel any particular allegiance to them. Attitudes which exist towards trading hours at present would merely continue.

4.3.28On the positive side it could be assumed that whatever trading hours are chosen would fairly take account of all interests, including that of neighbouring residents. Probably the main advantage associated with the ministerial establishment of trading hours is that there would be greater flexibility to change the hours than exists at present. However we do not favour conferring the power to establish trading hours on the Minister for Justice, Equality and Law Reform.

A National Liquor Authority

4.3.29To some degree the case for conferring the power to establish trading hours on a national liquor authority depends on the case for establishing such a body to deal with licensing administration. If the case on the licensing administration side is considered impressive, as we think it is (although we have not so recommended), it seems logical to consider whether the function of establishing trading hours should also be entrusted to such an authority on the basis that a single authority should deal with all matters affecting the retail trade in liquor.

4.3.30There are a number of advantages associated with entrusting the task to a national liquor authority. The authority would be a specialist body concentrating just on the trade in all its dimensions and would not have its energies or priorities diluted by involvement in other activities. It would acquire the expertise to know and understand the licensed trade better than anyone else and would be in the best possible position to make informed and responsive choices as regards trading hours. It could better track international developments and take account of them. It would be more likely to commission studies on drinking patterns and, on the basis of these, to make informed decisions.

4.3.31At present there is no body of expertise in the country which is fully aware, on a scientific basis, of the patterns of liquor consumption relevant to trading hours. As we remarked before research is sadly lacking and really the best decisions can only be made when such research is carried out. There is a greater likelihood of a specialist national body conducting or commissioning such research than any of the other bodies considered above.

Public Consultation

4.3.32The need for consultation remains of course exactly the same whoever sets the hours and the need to follow ponderous procedures to ensure that exhaustive public consultation occurs will apply equally to whoever sets the hours.

4.3.33We wish to stress this point about public consultation. While we do not proffer any views on the exact procedures to be followed, we emphasise that the process must be an inclusive one, involving all parties affected by the operation of licensed premises, and must be seen as attempting to draw all parties into the process. This may make for a ponderous and slow procedure but if that is what is needed for everyone to feel that they have been consulted and their views valued then it seems to us that it is worth while.

Conclusion

4.3.34Although we recommend no change in the Oireachtas’ responsibility for setting the licensed hours, we have discussed the various other options at this point for the purpose of illustrating the alternatives. For the time being, we consider that the combined effect of the other changes we recommend, together with the recommendations in relation to the hours themselves, will be a sufficient amount of change for now.

Structuring Trading Hours Controls

Permitted Hours and Extended Hours

4.4.1At present, the hours of trading are implicitly established by legislation. For trading hours outside these periods it is necessary to obtain special permissions by application from the District Court. These are called exemption orders. There are three types of exemption orders - special, area and general. Special exemption orders give rise to the most concern. They are granted under section 5 of the Intoxicating Liquor Act, 1927, as amended. They are used for the operation of what are commonly called “late night bars”.

4.4.2Thus the structure of the law is that there are somewhat early prohibited hours and there is then the possibility, subject to certain controls which we discuss later, of securing permissions to trade after those times. The question we have to consider at this stage is whether it would be an improvement in the system to accept the principle of longer opening hours (and a greatly reduced number of exemptions) or to continue with the present system with fewer (or more) exemptions.

4.4.3This is a difficult matter. If considerably longer normal trading hours (such as those normally permitted by a special exemption order) are available to all, we think it likely that they will be availed of by most if not all. The probable result will be that most premises will remain open longer, with all the ill effects associated with closing time pushed back to later in the night - and probably aggravated due to the longer operating times. This does not seem to us to be desirable.

4.4.4At the same time the manner in which the process for obtaining special exemption orders operates at present does result in unfairness as regards who can avail of it and who cannot. Too much can depend on the attitude of the local District Court Judge and on how readily he or she can be satisfied during applications for restaurant certificates or special exemption orders.

4.4.5Nevertheless, it is a principle of licensing policy, as we see it, that simplicity should be encouraged in the licensing system and its associated controls. We therefore prefer a trading hours system which does not require the wholesale obtaining of exemptions, as at present. Thus, although we recognise it might not be possible or indeed desirable to eliminate the need for special exemption orders altogether, we prefer in principle the idea of longer hours and much reduced exemptions, assuming that longer hours are in themselves desirable. We turn to that question shortly.

Absence of Reliable Data on Consumption Trends

4.4.6In determining whether the trading hours should be changed and if so to what extent it seems to us as legislators that it is indispensable to have detailed statistics on present and recent patterns of on-premises consumption. These would enable us to understand what is currently happening in licensed premises and what are the resulting effects. No such statistics exist or, so far as we are aware, have ever existed.

4.4.7Despite its importance to the national economy and to national life, despite the effects and costs of alcohol misuse, there have never been studies or statistics available which policy makers could rely on to determine future policy on trading hours.

4.4.8In the absence of reliable studies or statistics we must do as every other body before us has done and rely on submissions, our judgement and our experience to identify trends and, thus, to determine whether change in the law is needed. As we approach the 21st century we no longer think it acceptable that there should be such a vacuum of information at the heart of policy making in such an important area of national life.

Views on Reforming Current Trading Hours

Current Permitted Hours

4.5.1At present, the prohibited hours of trading are set out in section 2 of the Intoxicating Liquor Act, 1927, as amended. The 1988 Act made some small changes in the hours which had been established in 1962 and it is essentially the 1962 set of hours which apply today. These hours are as follows:

A 30 minute drinking-up time operates at the end of these periods.

4.5.2 Additional hours are enjoyed by hotels and licensed premises certified as restaurants subject to certain conditions relating to service of substantial meals, as set out in section 13 of the 1927 Act, as amended. These hours are as follows:

4.5.3These times reflect the legislative view, most recently expressed in 1995, of what the appropriate nationally applicable trading hours should be. We come now to consider whether we should recommend any changes in these.

Winter and Summer Times

4.5.4We received a number of submissions concerning the removal of the half-hour difference in permitted trading hours between summer time and winter time. We sympathise with these submissions and we consider that no worthwhile public policy principle is served by maintaining the half-hour differential between winter trading and summer trading. We recommend that the time change should be removed and the same closing times should operate the whole year round.

Sunday Closing Time

4.5.5We received a number of submissions arguing for a similar treatment of Sunday night and the other weekend nights on the basis that Sunday is also a leisure day.

4.5.6While we accept that, in leisure terms, Sunday night is quite similar to Friday and Saturday nights, we also note that there is this significant difference: Monday, a day of work or study for most people, follows after Sunday. This is not the case with the other two weekend nights. While we acknowledge the religious significance of Sunday, we do not base our view on this. Instead we consider that there is a recuperative, regenerative and psychological value and importance to Sunday night which should not be underestimated.

4.5.7We do, however, believe that no violence will be done to this concept of Sunday if, in the interests of simplification generally of the licensing code (as we have already proposed), we now propose that Sunday should be treated the same as a week night and should be subject to 11.30 p.m. closing all year around.

Monday, Tuesday and Wednesday Closing Times

4.5.8We have received no criticism concerning the present closing times on these nights. Other than the harmonisation of winter and summer closing times (which we have already recommended) and the matter of Thursday closing times (which we shall discuss in the next section), we recommend no change is this area. We did receive submissions concerning later opening times on these evenings. Some of the vintners argued for a 12.30 a.m. closing time for all nights. Because we consider that the nights from Thursday to Sunday are different in many ways from Monday to Wednesday, we deal with them separately.

4.5.9We have not seen any great evidence of a demand for later closing on Monday to Wednesday nights and, even if we had, we would still harbour doubts about the wisdom of such a change.

4.5.10We did consider recommending earlier closing times on these nights - such as 11.00 all year round - on the basis that according to current trends the desire for later drinking is manifest on Thursday, Friday and Saturday nights and not earlier in the week. We also considered, in light of our later recommendations concerning closing times on Thursday, Friday and Saturday nights, whether it might be fair to balance this by having earlier closing on other nights. We did not, however, adopt a recommendation on this issue in the end because we were concerned that such changes might send too strong a signal that public policy wanted now to shift drinking patterns towards the weekends with the danger of too marked an increase in the various problems associated with the on-premises consumption of liquor occurring.

Thursday, Friday and Saturday Closing Times

4.5.11These are the days when most use is made of licensed premises and, accordingly, we received a considerable number of submissions concerning changes in licensing hours on these days, particularly on Friday and Saturday. The arguments for longer opening times came, not surprisingly, from publicans and, to a lesser degree, from hoteliers and, in both cases, came mainly through their representative bodies but also from individuals. The general thrust of the case for longer hours is that drinking patterns have changed and that people now go out to licensed premises at later times and wish, correspondingly, to continue drinking later. We received no statistical evidence to support this alleged shift in drinking patterns, but those involved in the trade are satisfied that it has occurred and that the laws should reflect this change.

4.5.12We should now explain the inclusion of Thursday night in this section dealing with the traditional “weekend” nights of Friday and Saturday. We include it for two reasons:

(a)we have evidence, emanating from outside the Committee as well as from within our own experience, to suggest that Thursday is emerging, in Dublin City at least but also in other areas, as a significant night of trade both within the permitted hours and under special exemption orders;

(b)we received a number of requests from the trade for later closing times across the board, some suggesting 12.30 a.m. as the standard.

Thus, although no specific case was made to us for the special treatment of Thursday night in its own right, we consider that what we now propose reflects both the fact that we have recommended no change on Monday, Tuesday or Wednesday closing times and the fact that we realise there is a need to meet consumer demand in a less conservative way than has ever been attempted.

4.5.13We accept that there has been some change in drinking patterns towards later drinking. The success of late night bars and theatre drinking is evidence of that, as is the increase in the number of special exemption orders granted by the District Court - particularly in Dublin - in recent times.

4.5.14However that is not enough for us to be satisfied that we should recommend a change in the Thursday, Friday and Saturday closing times. We wish to refer to number of matters.

4.5.15Firstly, we have to consider whether the change towards later drinking is due mainly to the way that many licensees have exploited the present law to obtain restaurant certificate and special exemption orders and thereby create the opportunity for a demand to arise which would otherwise not have arisen. If the law had been strictly enforced by the Gardaí and the courts and had been observed by licensees - and we do not believe it has been - we question whether the demand for late night drinking would have manifested itself to quite the degree it has. Before making recommendations, we would prefer to identify a demand which is not based on over-lenient interpretations and lax enforcement because that would be a more reliable basis for considering the issue.

4.5.16We do not want to recommend change merely because the trade itself has brought about that change. If we did, it would be a signal that, for the future, all the trade has to do is operate in a lax manner for a period of time and then demand that the Oireachtas change the law because it no longer reflects current trends. If that happened, we would soon be contemplating the removal of all controls relating to opening hours. We have already stated we do not think that such a concept should be part of public policy in this area.

4.5.17Secondly, we have to consider whether longer hours on Thursday, Friday and Saturday nights are likely to produce unacceptably adverse consequences. It seems to us that to some degree they will. Where a licensed premises is located near a residential area it is inevitable that later closing will cause some neighbourhood disruption. Where the premises are not beside such an area then the disruption will be lesser. The issue, as we see it, is whether it is possible on a national policy basis to devise some way of differentiating between premises likely to cause disruption and those not so likely. We will return to this point later.

4.5.18Thirdly, we have not received any enlightenment as to exactly why there has been such a shift towards late night drinking. The fact that people may have more disposable income and may have experience of later hours while abroad as tourists or on business does not in our view totally explain the present phenomenon. We have considered other potential causes. One in particular seems to us worthy of consideration. It is related to the very high prices being paid for some years now for licensed premises and to the constant expensive refurbishment taking place in licensed premises all around the country.

4.5.19High prices for public houses are significantly related to the fact that premises often have a captive local market because the present licensing laws make it extremely unlikely - and often absolutely certain - that no new competition will appear to threaten their business. The buyer who pays a high price has to make considerable efforts to recoup his or her high investment. The same applies to the licensee who refurbishes in order to retain his or her market share when other licensees are also refurbishing. Refurbishment is often used in the licensed business as a means of competition instead of price competition.

4.5.20The normal trading hours provide only a limited scope for both purchaser and refurbisher to recoup their investments. Obtaining extra hours through special exemption orders provides another opportunity, as does becoming involved in other forms of entertainment. This then creates an incentive for licensees to seek longer trading hours.

4.5.21Thus there may be reasons related to general licensing policy and administration styles, the relative paucity of licensed premises in some areas and the weakness of price competition among licensed premises which give rise to the demand for longer trading hours.

4.5.22Despite our reservations about how present trends have come about, and despite what might be called a measure of self interested advocacy on the part of the licensed trade, we do accept that the present closing times for the nights in question are too early and that there is a real demand for longer hours. If adequate safeguards can be constructed, we consider that we should seek to bring that demand more securely within the ambit of the law.

4.5.23Our recommendation is for a 12.30 a.m. closing time on Thursday, Friday and Saturday nights. The normal drinking-up time of half an hour after this would apply so that most licensed premises would have to be vacated by 1.00 in the morning.

4.5.24The reason we recommend what at first glance seems a major extension of closing times is that we believe that public policy should make a realistic effort, possibly for the first time, to bring closing time within reasonable alignment to the public demand for drinking time. It can be said that, in the past, legislatures were rather hesitant about really trying to go close to what the public actually wanted because the history of tight hours controls was too immediate and such a step appeared too radical to adopt. Even the representatives of the licensed trade with whom we met accepted that their members were so used to the discipline of closing times that many did not want major extensions.

4.5.25We are concerned, if we recommend no change or recommend a small one such as an extension to (say) 12.00 midnight, that this would not met the demand and that what we believe is a fairly wide-scale breaking of the current law would simply continue. We did not want to make a recommendation in the almost certain knowledge that it would not meet the demand and in the equally certain knowledge that the Gardaí would not enforce the law as we would like them to. We would also point out that if, eventually, a shorter extension is adopted by the Oireachtas, it will be incumbent to show in what way the wholesale breaking of these times will be prevented.

Impact of Later Hours on Residential Neighbourhoods

4.5.26We propose these closing time changes to existing law without qualification at this time. However, we anticipate, if our recommendation is accepted, that there will be problems and that there will be objections. We therefore feel that we should advance a framework to address any such problems and to accommodate any objections to the inevitable consequences of later drinking.

4.5.27A closing time of 12.30 with half an hour drinking-up time does, we consider, represent a proper balance between the leisure demands of the drinking public and the protection of the domestic public and neighbours. However, because we are conscious of the need to protect neighbourhoods against undue interruption from such later closing times, we feel that further specific measures are needed. The key issue concerns how to identify the areas which are residential and, where necessary, to deny the later hours to premises in those areas.

4.5.28It is difficult to devise appropriate measures, but it seems to us that there are broadly two types of approach which could be adopted

(a)a suitability-certification procedure, operated by the Circuit Court; or

(b)suitability of location determined by residential zoning based on planning law.

A Certificate of Suitability for Later Trading

4.5.29The first possible approach is to enact a national rule which would grant the later hours to all licensees but would require a licensee beforehand to satisfy the Circuit Court that the operation of the longer hours would not cause unacceptable disruption. This could be done in the context of requiring the licensee to obtain a certificate of suitability for late night trading. The onus would rest on the licensee to show an absence of likely disruption. The certificate would last a year and would have to be renewed annually. Anyone reasonably likely to be affected would be permitted to object to the application and, as we have already proposed, objections could be made at any time of the year.

4.5.30The hearing into a certificate of suitability for later weekend hours could be based-

(a)on the issue of whether the premises was in a “residential“ area, or

(b)on whether the operation of the later hours would be likely to cause unacceptable disruption to residents of the area.

4.5.31A variant of this approach would be, again by national rule, to automatically allow all licensees to use the later opening hours but to grant to local communities and individuals the right to apply to the Circuit Court to remove an offending premises from the later hours entitlement either because the area was a residential one or more simply because of the disruption to the residents in the area. The removal could initially be a temporary one, for a few weekends only, and if after that there was not a sufficient improvement then the removal of the premises from the later hours for that year could be contemplated, with the issue revisited the following September if the licensee so wishes.

Using Planning Law to Identify Residential Areas

4.5.32A second way of dealing with the issue of identifying the areas where later hours would be likely to cause unacceptable disruption would be to attempt by planning means to zone the areas which are residential and to refuse the later hours for all premises whose activities would affect those areas. This could be done by the planning authority incorporating such a measure into its five year development plan after following stipulated procedures involving consultation with local communities. This would, however, require considerable effort on the part of planning authorities and might also require some statutory additions.

4.5.33There are advantages and disadvantages associated with both approaches. What is particularly important in our view is that local communities should not be unduly put upon to establish their case against longer hours in their neighbourhood. If the onus rests on them to make the necessary application, or to do so more than once in a defined period, and to bear the legal costs associated with such an application, then that would be stacking the cards against the likelihood of many local communities availing of the procedure to articulate their opposition to the longer hours.

4.5.34For this reason and after some consideration we consider that the first option outlined above is preferable. However, having discussed these options, we do not make a recommendation in this regard because, for now, we would wish our proposed extension of permitted hours to stand alone. For the reasons we have outlined, we believe it is a meaningful response to consumer demand and we would be anxious that our proposal should not be constrained in implementation right from the start.

Sunday Morning Opening

4.5.35Opening time on Sundays at 12.30 p.m. is later than on weekdays where the opening time is 10.30 a.m. There also exists a possibility for opening at 12.00 noon on Sundays outside the larger cities subject to certain conditions. We have received some submissions which argue for a 10.30 a.m. opening time on Sundays so that it is the same as the remainder of the week. The point was particularly made that 12.30 p.m. was just too late, especially on days where major sporting events such as all -Ireland matches take place.

4.5.36We do not wish to see earlier opening on Sunday mornings as a uniform national policy, even for big matches. Sunday morning possesses both a religious and leisure significance which is rare and should be valued and should not be downgraded.

4.5.37A particular point, however,concerns the desire to allow public houses in the vicinity of large sports grounds open earlier on Sunday mornings. There are clear public order implications to any proposal which will make liquor more available beforehand to those about to enter a sporting event. We have not especially gone into this matter or sought the views of the Gardaí or the GAA, as the largest promoter of Sunday afternoon sport in the country.

4.5.38However our inclination would be to approach such a matter very cautiously. We would require considerable convincing before being satisfied to recommend earlier Sunday opening for licensed premises in the vicinity of sports events likely to attract large numbers of people.

Sunday Afternoon Closing

4.5.39At present, public houses must close on Sunday afternoons between 2.00 p.m. and 4.00p.m. Hotels and certified restaurants, some of which are public houses, can remain open for the sale of meals and can provide drink with the meal up to 3.00 p.m.

4.5.40We received many submissions which advocated the removal of the Sunday afternoon closing. The reasons for this demand are that there has been a shift in consumer patterns on Sunday afternoons, that families eat out on Sunday afternoon in public houses and that the law should be changed to cater for this demand. It is further claimed that many sporting events are now shown on television on Sunday afternoons and that licensed premises should be able to facilitate customers who wish to watch these with a drink.

4.5.41We consider that this demand exists and that the request to abolish Sunday afternoon closing is reasonable and should be accepted. Accordingly, we recommend the removal of the need for licensed premises to close on Sunday afternoons. In making this recommendation, we have been influenced by the fact that the abolition by the 1988 Act of weekday afternoon closing and Saturday afternoon closing in Dublin has not resulted in any increase in problems. Even allowing for some differences in the leisure nature of Saturday and Sunday, we would expect the removal of Sunday closing to be no different.

Good Friday

4.5.42We received a number of submissions critical of the present Good Friday hours. These are set out in sections 2 and 14 of the Intoxicating Liquor Act, 1927, as amended, and provide that on-licensed premises must generally remain closed on Good Friday, though liquor can be provided to a person then lodging in such premises for consumption with a meal consumed by such person in such premises.

4.5.43Some of the submissions wanted Good Friday treated the same as Christmas Day, others wanted the right to operate bars for hotel residents, while others wanted Good Friday to be treated the same as Sundays or even ordinary weekdays.

4.5.44We realise and accept that the present ban is not always observed, though we have no statistics on prosecutions for Good Friday trading.

4.5.45It was put to us that Good Friday, as a prohibited day, is a licensing institution which, in light of other significant changes we propose, we would be best advised to leave alone. It was further suggested that we could bring trouble on ourselves by violating the religious significance of the day.

4.5.46We are satisfied that there is no significant groundswell of public opinion which is in favour of changing the position and we recommend its retention for the present.

St. Patrick’s Day

4.5.47At present, whether St Patrick’s Day falls on a weekday or on a Sunday, the permitted trading hours are normal Sunday hours. We have received submissions suggesting changes in these hours, namely, that St. Patrick’s Day should be treated as an ordinary weekday when it falls on a weekday. We consider that the present balance in the law is right and we do not recommend change in this area.

Christmas Day

4.5.48We have little or no evidence of a demand for opening on Christmas Day and consider that the present position whereby liquor can only be supplied in hotels and certified restaurants in the context of a substantial meal is adequate.

New Year’s Eve and Bank Holidays

4.5.49At present, customers must leave licensed premises by 11.30 p.m. at the latest on New Year’s Eve. It was suggested to us that customers should be allowed celebrate the occasion inside the premises rather than being (theoretically, in law) forced outside as they are at present.

4.5.50Many licensed premises such as hotels, certified restaurants (which are often public houses) obtain special exemption orders for New Year’s Eve and therefore their customers are not forced out onto the street for the celebration of the New Year. However we do accept that on this night it should be possible for people to celebrate inside a licensed premises rather than have to pay for the privilege of going to a hotel or restaurant to do so.

4.5.51We therefore recommend that closing time for New Years Eve be extended to 12.30 a.m., with the usual 30 minutes drinking-up time, even when it falls on a Sunday.

4.5.52A significant factor in our determination of whether later hours are appropriate on any given night is, as can be seen from our discussion of Sunday closing times, the nature of the following day. Although we have not stated the same principle in relation to New Year’s Eve, it is a significant factor here also, New Year’s Day being a bank holiday.

4.5.53In the interests of uniformity, but also because we consider it justifiable on both a need basis and an appropriateness basis, we also recommend that the later closing time of 12.30a.m. should apply on the eve of all bank holidays, including where they fall on a Sunday.

Extended Trading Hours

Special Exemption Orders

4.6.1While we have already dealt with the question of later opening on Thursday, Friday and Saturday nights, we have not dealt with the issue of allowing very late hours of trading in licensed premises. This is perhaps the most contentious issue of all.

4.6.2The present laws contain a number of mechanisms for extending the permitted hours of trading in liquor. Each mechanism involves application being made to the District Court for orders exempting applicants from the usual prohibited hours. Consequently, they are known as exemption orders. There are three types of order - special exemptions, general exemptions and area exemptions. The most significant is the special exemption order since this is what is used for regular late night functions and bars.

Entitlement to Obtain Special Exemption Orders

4.6.3Much of the concern expressed in submissions and oral hearings concerned recent rends in the issuing and use of special exemption orders, especially in Dublin. There is a perception that many more public houses are able to obtain these than in the past and that this widens the opportunities for regular late night drinking to such an extent that in some areas it has made the normal closing hours relatively meaningless. If this perception is true it is certainly a serious mater and deserves urgent consideration.

4.6.4Under the present law only hotels and certified restaurants are able to obtain special exemption orders. Public houses as such are not able to obtain them but, if a public house becomes a certified restaurant, it is able to obtain them. The District Court can only grant the special exemption order if it is satisfied that there is a special occasion taking place in the premises. A special occasion is defined in section 12 of the 1962 Act as follows:

“(5) In this section ‘special occasion’ means -

(a) (i)the occasion of a special event that is organised for the entertainment of the members of a particular association, organisation, or other like group, or

(ii)the occasion of a private function in the premises in relation to which the special exemption order is sought and at which a substantial meal (the price (if any) of which is included in the price (if any) of admission to the event) is served to the persons attending the event,

(b)the occasion of a dance that is held in a ballroom licensed under the Public Dance Halls Act, 1935, and forming part of the premises in relation to which the special exemption order is sought being a dance at which a substantial meal (the price (if any) of which is included in the price (if any) of admission to the dance is served to the persons attending the dance, or

(c)the occasion of a dance that is held in such a ballroom on a day that, in the opinion of the Court, is a day of special festivity generally or in the locality in which the premises are situate.”

4.6.5Thus there are three occasions involved - a purely private event at which a substantial meal must be served etc., a public dance at which a substantial meal must also be served and a public dance at which no substantial meal need be served. However a special exemption order can only be obtained under this last heading on six days of the year and consequently there has not been much concern about its operation.

4.6.6The policy underlying the structure of this definition is clearly that the Oireachtas did not wish late night drinking on its own to take place. It was only prepared to envisage late night drinking if it occurred in conjunction with food and entertainment.

4.6.7We do not disagree with this policy and we would adopt it also as the basis for our recommendations in this area. As we have already indicated in our discussions and recommendations in relation to later opening hours, particularly on Thursday, Friday and Saturday nights, it is our objective to bring as much as possible of the incidence of liquor consumption within the scope of standard permitted hours and to reduce the frequency with which it is necessary to make special arrangements (i.e. exemptions)for consumption outside of these hours, particularly where individual application must be made for each such exemption.

Restaurant Certificates

4.6.8By virtue of the law as it stands hotels and certified restaurants theoretically enjoy an effective monopoly on late night drinking in Ireland. Public houses cannot obtain them as of right and this has been one of the points of contention in submissions made to us and in meetings with interested groups.

4.6.9However, if a public house obtains a restaurant certificate it can then obtain a special exemption order, but there have been criticisms of the way in which many public houses comply with the “substantial meal” requirement. Thus, ordinary public houses which do not have restaurant certificates feel aggrieved that those who have them (and effectively operate late night bars) appear to trade as ordinary pub premises during the exempted period.

4.6.10A restaurant certificate may be obtained on application to the District Court and by satisfying the Judge that, under section 12 of the 1927 Act, the premises-

“are structurally adapted for use and bona fide and mainly used as a restaurant, refreshment house or other place for supplying substantial meals to the public“.

4.6.11We have heard some criticism of the way District Judges have allowed themselves to be satisfied that public houses are restaurants. We would share the concern behind those criticisms that the present law is being used in ways which were not envisaged when this legislation was enacted. The restaurant certificate has been turned into something which public houses use as a gateway to late night drinking.

4.6.12We stress that there is nothing wrong with public houses obtaining a restaurant certificate if they are able to satisfy the statutory requirements. It may have always been envisaged that some public houses would be able to obtain them in circumstances where they were genuinely carrying on a traditional restaurant business. However, trends in public house food services have changed greatly since 1962 and we doubt that the circumstances in which food is provided in many public houses now were within the legislative intendment of the Oireachtas when it enacted the provisions relating to restaurant certificates. The risks of the wholesale use of restaurant certificates by what are really public houses using the certificate for operating late night bars are evident and are, in our view, being realised nightly in Dublin.

4.6.13We consider that the present situation involves an unacceptable distortion of legal provisions and daily brings the law into disrepute. The scale and frequency with which many establishments are obtaining special exemption orders in Dublin raises serious questions about the validity of the rules governing normal closing times. If it is accepted that there should be prescribed closing times, we do not think that the present situation whereby the normal hours are being undermined should continue.

4.6.14However we do not believe that the way to deal with it is by prescribing tighter rules for defining those premises which can obtain the restaurant certificate, as some submissions urged us to do. Given the experience with the way the present jurisdiction has been exercised and the consequent Garda attitude towards enforcement, we prefer not to recommend any certification process. We are also conscious of the questionable fairness in confining the opportunity for late night trading to hotels and restaurants, however defined.

4.6.15Instead we suggest that the better way to deal with the issue is remove altogether the need to be either a hotel or obtain a restaurant certificate and to focus the law on the detailed way the premises will be required to operate under a special exemption order. We set out our views on that below.

Special Exemption Orders for Private Functions

4.6.16We have heard no criticisms of the ground for granting special exemption orders in respect of private functions or functions organised for the members of an association or other like group and therefore favour leaving it as it stands. However we are aware that there is potential for abuse of the ground in the way the necessary group requirement might be interpreted in the courts. We have considered, but make no recommendation on, ways in which the definition of “group” might be tightened up.

Special Exemption Orders for Public Dances

4.6.17The main difficulty with the present definition of “special occasion” concerns public dances. Difficulty with this definition has occurred -

(a)in compliance with the requirements in relation to the provision of a substantial meal to the patrons, and

(b)in the fact that there are no limits on the number of days for which orders for public dances can be granted.

Limits on the Numbers of Days

4.6.18If we accepted that the operation on these public dances with bar extensions was excessive, it would be easy to recommend a numerical limit on the number which should be granted. Some submissions suggested that 15 or 20 a year would be sufficient. We do not consider this would be the best way of dealing with the matter.

Compliance with the Requirements of the Law

4.6.19There is no doubt that there is widespread disregard of the legal requirement particularly in relation to the substantial meal which should be served. There is also disregard of the requirement that patrons should not have to pay for the meal once inside at the dance. If these requirements were taken seriously by both the trade and the Gardaí we think the present position would be satisfactory. However, it is well known that the trade often serves what is barely, if at all, a substantial meal. In a number of cases we have heard of no meals at all being served. We believe that the Garda attitude of not investigating a matter unless there is a complaint has encouraged the disregard of the law.

Weaknesses in the Law

4.6.20The law is also structured in a way which helps obstruct achievement of the legislative policy of justifying late night drinking only as an adjunct to eating and entertainment. There is no legal control over the time when the meal should be served. Sometimes patrons arrive and discover that all the meals are gone. Many venues only prepare meals for 10% of the anticipated attendance on the basis of past experience that only 10 % of patrons will eat it. Even if a proper meal is served, the patrons can chose to ignore it. There is no requirement for table service of the meal. What frequently happens, and is perfectly legal, is that there is a minimal and basic sitting area for eating the meal. In some cases, there is none and the food is put on paper plates and simply left on a table in the corner. The patrons are free to ignore the meal and can go and sit at the bar and drink all night without either eating or dancing. This is far from what the Oireachtas intended when it created the present definition of “special occasion”.

4.6.21Within the context of continuing to encourage the combination of drink, food and entertainment as the sole reason for late night drinking, we think the solution to the present difficulties lies in a closer and more refined control over the provision of meals during the public dance. There are a number of possible measures which could be suggested. The legislation could be amended to provide, in addition to the present requirements, that -

(a)seating at dining tables must be provided for all patrons (or a specified percentage of them);

(b)the dining area must be a stated percentage of the dancing area;

(c)the table area must be of a standard akin to the ordinary restaurant services in the premises;

(d)all meals must be by table service or by carvery;

(e)the meal must be served during a defined period of the extension; and

(f)no further patrons should be admitted once the meal has started;

(g)there should be no public bar during the meal; and

(h)there should be a realistic minimum price for the meal.

It will be noted we do not recommend trying to further define substantial meal.

4.6.22If licensed premises have to comply with all of these additional requirements, it would address most of the concerns about the present law. The requirements would be relatively easy for the Gardaí to enforce and we have selected them specifically with that in mind. We also consider that there would be no reason why there should be any limits placed on the numbers of orders which could be made for occasions which respected these requirements.

4.6.23However, if adopted, these requirements would we suspect change the way late night dancing has developed in Ireland over the last thirty years and would in many cases render it uneconomic for licensees to continue to seek special exemption orders. While that would be no bad thing in some cases we are conscious of the need to still provide legitimate outlets for a remaining demand for very late night drinking without food but with entertainment.

4.6.24We recognise that many of the premises to which the “public dance” provision relates are, in fact, nightclubs and that these are the venues where many of the undesirable and unlawful practices we have outlined are occurring. We will deal with this sector of the licensed trade in a later part where we make recommendations which will effectively remove from many nightclubs the need to apply for special exemption orders.

4.6.25We would also draw attention, once again, to our earlier recommendation for longer hours on Thursday, Friday and Saturday nights. We believe that, having tightened up on the provisions governing the consumption of food under special exemptions for public dancing, and once the bona fide nightclub sector has been accommodated, these provisions combined should go a long way towards satisfying the remaining and acceptable demand for late night drinking.

Special Exemptions Without Food

4.6.26There may however still be a residual demand for late night facilities on the occasion of a dance on a day that, in the opinion of the court, is a day of special festivity generally or in the locality, and which we consider we should address. We therefore recommend that the number of occasions during the year on which it is possible to obtain a special exemption order without the service of a substantial meal should be increased from six to twelve.

Duration of Special Exemption Orders

4.6.27We received submissions suggesting that every order should last for a minimum duration. The time proposed was three hours. We also received submissions suggesting that all special exemption orders should end at the same time. The Gardaí generally prefer the same closing times, presumably because this facilitates enforcement of the law.

4.6.28We do not consider it appropriate to make any recommendation on this matter. While we sympathise with the Garda view and expect that it would be given due weight when applications are being considered, we think the matter is too dependant on local circumstances for it to be worthwhile to attempt any national ruling on the matter. The issue should be left to the discretion on the body which grants the order.

Responsibility for Granting Special Exemption Orders

4.6.29At present the responsibility for hearing applications and issuing special exemption orders rests with the District Court. We have already noted the criticisms of the way District Judges have issued these orders, focusing particularly on the failure to provide the “substantial meals” required by law. While we are concerned at the remarkable increase in the number of special exemption orders which the District Court has granted in recent years, we do not think all the blame can be attached to the District Court. Part of the blame rests with the Oireachtas for providing an exhaustive statutory definition of “special occasion” in the 1962 Act. That definition removed the discretion of the individual Judge to refuse an application even if the occasion was not, in his or her opinion, special. That is the consequence of providing a detailed mandatory definition.

4.6.30The District Court remains an attractive option for granting special exemption orders, even under the reformed format we recommend. It is a local body, it sits regularly and can easily respond to the number of applications which would be made for such orders. It does however carry the record of the present unhappy situation regarding the way late night drinking has developed in recent years.

4.6.31In keeping with our earlier proposals to entrust all licensing matters to a single body, namely, the Circuit Court constituted as a special licensing court, we envisage that the issuing of special exemption orders should also be a function of that Court. As we have said, our objective in doing this is to achieve consistency in licensing decisions and to found the underlying thinking as regards all licensing administration matters on a broad and up-to-date knowledge of the issues and principles we have outlined in this report.

4.6.32In doing this, it will be necessary to provide for an applications procedure to the Circuit Court which is appropriately timed to the periodic sittings of that Court. Whatever our views may be on the likelihood of a reduced incidence of special exemption orders as a result of our other recommendations, we also believe that the Court’s time, and the interests of the applicants, would be better served if individual applications did not require to be made for each exemption sought. A single application to the Court, seeking such orders as may be required in respect of a particular premises for (say) the next three months, should be allowed.

Special Exemption Orders for Saturday Nights/Sunday Mornings

4.6.33A number of submissions were received concerning the operation of section 5 of the 1927 Act which provides -

“(3) No special exemption order shall be granted for any time on a Sunday.”.

4.6.34We will deal with the part of this prohibition which relates to the hours after normal closing time on Sunday night in the next section. We have different reasons for our views on that part of the exemption which relates to the hours before normal opening time on a Sunday, in particular, the early hours of the morning which are contiguous with the previous Saturday night.

4.6.35We have already identified a demand for later hours on Saturday night. We have also dealt, in a general way, with the manner of the granting of special exemption orders for even later availability of liquor. We come now to the interaction of these two concepts on a Saturday night.

4.6.36Recognising that the following day, Sunday, is, for most people, not a day of work or study, we recommend that the prohibition on the granting of special exemptions in the early hours of Sunday morning be removed.

Special Exemption Orders for Sunday Nights/Monday Mornings

4.6.37Special exemption orders for Sunday nights are currently prohibited under section 5 of the Intoxicating Liquor Act, 1927. as amended by section 29 of the 1988 Act. However, the legislation does allow such orders to be granted for one hour after 12.00 midnight to 1.00 a.m. on Monday morning.

4.6.38We received a number of submissions complaining about the ban on the operation of such orders-

(a)on Sunday nights between closing time and 12.00 midnight, and

(b)after 1.00 a.m. on Monday morning.

4.6.39On the other hand the Gardaí have expressed concern over possible abuses in the operation of the present Monday morning orders.

4.6.40In line with the view which we have already expressed that Sunday as a day which stands apart from others in terms of its significance to the individual and as a day which, unlike the other weekend nights, precedes a day of work for most people, we would be inclined to recommend that no special exemption orders should be granted for either Sunday night or Monday morning.

4.6.41However, we are aware that this would remove a facility which the licensed trade already enjoys and we are reluctant to deprive the trade of any existing privilege. Consequently we would reserve our position on this matter and make a recommendation of no change.

Part 5: Supermarkets and Off-Licences

Contents

Introduction

5.1.1We received a number of submissions from supermarkets concerning their difficulties in relation to the present laws governing the retail sale of liquor for off-premises consumption. All branches of the supermarket trade are critical of the present restrictions and urge us to recommend some changes.

5.1.2There are three issues involved -

(a)supermarket hours of opening for their non-licensed businesses,

(b)supermarket hours for selling liquor, and

(c)the licensing of supermarkets.

We will deal with each issue separately and we will also discuss the more practical issues surrounding the licensed areas within supermarket premises.

5.1.3Some of the issues relating to supermarkets which we discuss in this part apply equally to other off-licensed premises, including the traditional stand-alone off-licence.

5.1.4There are, however, issues which are specific to stand-alone off-licences. Not least of these is the fact that, unlike supermarkets, their main activity is the retail sale of intoxicating liquor. In this respect, stand-alone off-licences are more akin to public houses. We will deal with some of these issues at the end of this part.

Liquor Licensing of Supermarkets

Types of Licence

5.2.2There are four types of retail licence under which supermarkets currently operate:

(a)spirit retailer’s on-licence which permits the sale of spirits, beer and wine;

(b)spirit retailer’s off -licence;

(c)beer retailer’s off-licence;

(d)wine retailer’s off-licence.

5.2.3In the case of the average supermarket which has only an off-licence, it will have three licences, one each for spirits, beer and wine. In our view it is an unnecessary complication that a supermarket should have to obtain three licences - three separate pieces of paper - before it can sell the normal range of liquor. That does not happen with on-licences. A spirit retailer’s on-licence (the publican’s licence) - one piece of paper - automatically allows the sale of beer and wine. The contrast is more marked when one compares an off-licence operated in conjunction with a public house and one operated independently of it such as a supermarket. Though their businesses are the same, one needs three pieces of paper to operate, the other needs only one.

5.2.4We do not see any reason in principle why a spirit off-licence should not allow the sale of other liquors and we accordingly recommend that an amendment be made to the Finance (1909-10) Act, 1910 to allow the sale of other liquors under a spirit off-licence, as is the case with an on-licence.

Characteristics of Licence and Attachment of Conditions

5.2.4There is no specific liquor licence for supermarkets which is reflective of the particular circumstances of their activities. Should our recommendations elsewhere concerning the creation of just one type of liquor licence for all retail traders in liquor, endorsed with different conditions designed to reflect the different circumstances of licensed outlets, be accepted, then we would expect conditions specific to supermarkets, and reflective of their present position, to be attached to their licences.

5.2.5Those conditions would relate, inter alia, to the following matters:

(a)off-premises consumption;

(b)types of liquor sold;

(c)part or parts of premises in which liquor can be sold;

(d)requiring purchases of groceries and liquor;

(e)minimum purchases of groceries;

(f)location and re-location of areas used for selling liquor;

(g)minimum age for purchases.

A number of these conditions will be recognised from the list we gave in an earlier part concerning the nature of licences generally and, while we have added some new ones relevant to the supermarket context, we merely re-state others for illustrative purposes. Neither list is exhaustive.

Availability of Licences for Surrender

5.2.6At present, the ban contained in the Licensing (Ireland) Act, 1902 on the granting of new publicans’ licences applies to off-licence outlets as well. Thus, before a new off-licence can be established, application must be made in the District Court and applicants must bring themselves within one of the grounds of exception to the ban imposed by the 1902 Act. Among other things, this will require the extinguishment of one or more on-licences or off-licences before the Court can grant the new off-licence certificate. The more common grounds used in applications are the demolition of some existing licensed premises, the extinguishment of two licences in a rural area or a 25% increase in the population of an urban parish. If a supermarket comes within one of these grounds and its application is successful, the off-licence is granted under the Beer Retailers and Spirit Grocers Retail Licences (Ireland) Act, 1900.

5.2.7As a result of the operation of the extinguishment requirement, we have received some evidence to the effect that a scarcity of off-licences is developing and that the price of off-licences for extinguishment is accordingly increasing. This is partly caused by the increased presence of supermarkets in towns and cities and their suburbs around the country and their need and greater capacity to acquire licences. An indication of the present scarcity is that, in urban areas, off-licences are beginning to assume a greater value than on-licences. Supermarkets are acquiring them and offering them for extinguishment in order to obtain off -licences.

5.2.8We have already outlined, in relation to on-licences, that it should be a longer term objective that the mandatory statutory requirement to extinguish one or more liquor licences in order to obtain a new one be removed and that each case should thenceforth be treated on its own merits and by reference to the generally prescribed criteria which we have outlined. We consider that the case for abolishing the need to extinguish an existing licence in order to obtain a new off-licence is even stronger than in the case of on-licences.

Three Licences Needed to Make up an Off-Licence

5.2.9Besides being a common sense matter, this recommendation should also deal with the issue of the multiplicity of licences which arises when bringing an application in the District Court for a new off-licence.

5.2.10At present, when a supermarket applies in court for a certificate of entitlement to a new off-licence so that in can engage in retail sales of liquor, it needs, as we have said, to obtain three off-licences, one each for spirit, beer and wine sales. This means that it needs to obtain two certificates of entitlement from the District Court: one for a new spirit off-licence and one for a new beer off-licence (a wine retailer’s off-licence is granted automatically to the holder of a beer retailer’s off licence). This procedure exists whether the supermarket is required to extinguish one or two existing licences. For example, where a supermarket applies for an off-licence in a rural area, it needs to procure the extinguishment of two sets of existing licences - two spirit off-licences and two beer off-licences.

5.2.11This involves an unnecessary multiplicity of licences and it results from the fact that a spirit retailer’s off-licence does not allow the sale of other liquors, unlike a spirit retailer’s on-licence. Our previous recommendation that the spirit retailer’s off-licence should permit the sale of all other liquors should also deal with this issue and eliminate the need for separate beer and wine retailer’s off-licences and thereby simplify matters. In the future it should not be necessary for a supermarket to secure the extinguishment of four or, depending on the type of application, two existing licences before the District Court when applying for a new off-licence.

5.2.12We also recommend, when the necessary statutory change is made, that, on renewal, all supermarkets which currently hold the three types of licence which make up the off-licence should be granted the new type of spirit off-licence.

Character of Licence to be Extinguished

5.2.13There is a further issue affecting the obtaining of new off-licences which has only emerged in recent times and which results partly from what appears to be an increasing shortage of off-licences for extinguishment. When a supermarket wishes to secure the extinguishment of off-licences in order to obtain a new off-licence in a rural area under section 13 of the 1960 Act, it cannot offer on-licences for extinguishment. It must offer off-licences instead - O’Rourke & Anor. v. Grittar (1995) IR 541. However, if the supermarket wishes to do the same thing in an urban area under section 4 of the 1902 Act, it is acceptable to offer an on-licence or an off-licence for extinguishment - Power Supermarkets v. O’Shea (1988 IR 206.

5.2.14That an on-licence can be used in some cases but not in others makes little sense. Whatever about the analysis used in the two court decisions above which produced this result, we do not think the position can be stood over in principle. There is no reason in logic as to why the extinguishment of one or more on-licences is not sufficient in a rural area to secure a new off-licence and we therefore recommend that the grounds for granting new off-licences be amended to provide that in all applications for off-licence certificates it is acceptable to offer either off-licences or on-licences for extinguishment.

Licensing of New Supermarkets in Certain Urban Areas

5.2.15In urban areas (cities, towns, county boroughs and urban districts), a supermarket can currently offer either an on-licence or an off-licence in extinguishment for a new off-licence. While this is a more flexible facility than is the case in rural areas, there are still difficulties in some urban areas in securing new licences for supermarkets. In such areas there is such a general shortage of on-licences and off-licences that the prices which would be charged to acquire such a licence would be exorbitant.

5.2.16We are concerned that it should be practically impossible for new supermarkets to obtain off-licences in such areas. We therefore recommend that the law should be amended to permit supermarkets in urban areas where there is a serious shortage of off-licences to purchase two on-licences or off-licences from anywhere in the country in order to obtain a new off-licence. In making this recommendation we do not consider that it carries any risk of proliferation or abuse since it only apples to off-licences and, at that, it applies only to those in urban areas where it is shown to the licensing authorities satisfaction that there is a serious shortage of off-licence facilities.

5.2.17In the interests of equal treatment of operators sharing a common trade, we further recommend that prospective stand-alone off-licences should also be able to avail of this mechanism under the same conditions as supermarkets.

Supermarket Hours of Opening for Non-Licensed Business

Current Permitted Hours

5.3.1If supermarkets maintained structural separations between the portion of their licensed area used for their licensed business and the portion used for their non-licensed business, they would be free, at least in so far as intoxicating liquor law is concerned, to open the portion used for the non-licensed business at any time. However, supermarkets are, by definition, open areas in which customers are free to move around and chose what they want to buy. Therefore it is no solution to their present difficulties to suggest that they should structurally separate their premises into licensed and non-licensed areas (although some have done so already).

5.3.2Supermarkets are not only subject to restrictions as to when they can sell liquor, but intoxicating liquor law also subjects them to restrictions as to when they can open for the conduct of their non-licensed businesses.

5.3.3The present opening hours for retail sales of non-liquor products in supermarkets which do not maintain a structural separation between their licensed and non-licensed areas are set out in section 3 of the 1927 Act as amended by section 8 of the 1960 Act and by section 3 of the 1962 Act. These hours are as follows:

Thus a supermarket with an on-licence can open an hour and a half earlier on weekdays than a supermarket with an off-licence. There do not appear to be many supermarkets in this position.

5.3.4The supermarkets argue that these opening times for their non-licensed business are unduly restrictive. They say that trading patterns have changed, that customers wish to be able to use supermarkets earlier on weekdays and also to be able to do their shopping on Sundays. They point to changed social circumstances whereby both partners in a household might be working during the week and would wish to have the facility of early morning or Sunday shopping without the present restrictions. At present they cannot open before 12.30 p.m. on Sundays and must close between 2.00p.m. and 4.00 p.m.

Weekday Opening for Non-Licensed Business

5.3.5We agree that the present weekday opening hours are unduly restrictive and should be relaxed. Supermarkets are not engaged primarily in the sale of liquor. They are responsible entities engaged in retail sale of foods and household articles. We do not see anything like the same social and other risks involved in permitting them to open for longer hours than is the case with premises having and operating on-licences.

5.3.6Superquinn suggested to us that one way of dealing with the issue would be to add supermarkets to the list of businesses such as hotels and restaurants provided in section 3(3) of the 1927 Act. This would mean that supermarkets would, like these other premises, be free to open and stay open at any time for the conduct of their non-licensed business. That is an attractive suggestion.

5.3.7However, there is a significant difference between supermarkets and hotels and restaurants. In the latter establishments it is possible to separate the liquor from the customers when the premises is open for its non-licensed business. In supermarkets, this is not always the case. The liquor is generally on open display on the shelves, deliberately placed for customers to pick up and put in trolleys.

5.3.8This difficulty already arises when supermarkets open at 9.00 a.m. on weekdays. The liquor is accessible on the shelves and customers can put it in their trolleys and present it at the checkout for purchase. The supermarkets assure us that there is little or no risk of illegal sales at present because the receipt which is issued to the customer indicates the date, the time and the article purchased. Should the sale be illegal, this receipt would constitute evidence useable in court against them. Some of the supermarkets assure us that they have had no prosecutions brought against them in this area and that they specifically train their staff regarding sales of liquor.

5.3.9If there was a foolproof way of maintaining in-house supermarket records of every purchase, including liquor, showing the time of purchase, we could readily recommend that section 3(3) be amended along the lines suggested by Superquinn. We understand that such a system does not exist. It had been suggested, as an alternative, that it would be possible to adapt bar-coding so that it would not permit the sale of liquor before certain times, but there are doubts about the feasibility and expense of this.

5.3.10In making a recommendation on this matter, we are principally guided by what appears to be the experience so far of the observance of the law in early morning shopping in supermarkets. Our impression and that of the Garda authorities is that there is no particular problem of supermarkets abusing the present facility afforded them of opening at 9.00 a.m. on weekdays but not selling liquor.

5.3.11We would require some further safeguards and steps to be taken in these circumstances, namely, that shutters be provided on the shelves (or closing off an area) where liquor is stored and that signs outlining the prohibition on licensed business during the relevant times be required to be displayed in prominent positions in the vicinity.

5.3.12On that basis, we recommend that the necessary amendment should be made to section 3(3) to permit supermarkets to open for their non-licensed business at any time. This would mean the removal of the impediment in liquor licensing law to supermarkets opening for non-licensed business before 9.00 a.m. on weekdays in cases where the licence is an off-licence and before 7.30 a.m. on weekdays where the licence is an on-licence.

5.3.13One of our Members, Deputy Noel O’Flynn, opposed this (latter) recommendation and asked to have this recorded. The opposition to our recommendation was founded in the belief that, while there is no public demand for the availability of liquor during the hours in question, the very possibility of its availability (presumably by fraudulent means designed to undermine both the safeguards we have proposed and the supermarkets’ own enforcement systems) would create an opportunity for liquor consumption at times far outside the accepted norm.

5.3.14We are conscious of the issue of devising a suitable definition of “supermarket” to be used in the legislation. However, such a definition is already contained in section 47 of the 1988 Act (on which we comment later in this part) and that definition seems adequate for our purposes.

Sunday Opening for Non-Licensed Business

5.3.15As regards Sunday opening hours in supermarkets for non-licensed business, we consider that the present liquor law restrictions should also be removed. If supermarkets can be trusted to properly distinguish between their licensed and non-licensed businesses on weekdays without injury to the public good, we think the same trust must also be applied to their Sunday trading.

5.3.16We examined the question of whether we should recommend some specific opening time for Sunday trading, but decided against it. There are of course other matters, such as the leisure and religious aspects of Sunday which are relevant to the general issue of Sunday trading. These matters might or might not justify some Sunday trading restrictions on the totality of supermarket operations on Sundays. All we indicate here is that, as things stand, we consider that the issues arising from supermarket opening related to the conduct of non-licensed business do not justify restrictions on opening for non-licensed business.

5.3.17The general prohibition on supermarket opening on Sunday afternoons between 2.00 p.m. and 4.00 p.m. should also be removed. The present law requires supermarkets to close for their non-licensed business during these hours. This is clearly inconvenient for any Sunday trading by supermarkets and serves no useful purpose. It is not realistic to expect customers to leave at 2.00 p.m. and return at 4.00 p.m.

Good Friday Opening for Non-Licensed Business

5.3.18Under the present law, supermarkets must remain closed on Good Fridays because of the general legal injunction against all licensed premises opening on that day, even for non-licensed business. Hotels and restaurants enjoy an exception in this regard and can open for their non-licensed businesses.

5.3.19A number of the supermarket chains made submissions critical of this law and have suggested that they should be allowed open on this day for their non-licensed business. They say the present law is an unfair imposition on their trading freedom. They have to close on a day when they would not be selling liquor anyway and when their competitors who are not licensed do not have to close and who, in fact, in most cases, stay open.

5.3.20We agree that the present law does give rise to unequal trading conditions as between the supermarket and grocery sectors. While we have already recommended that licensed premises should continue to be prohibited from conducting licensed business on Good Friday, that is not relevant to allowing supermarkets open for non-licensed business on Good Friday. If supermarkets can be trusted, as they are at present, to open for non-licensed business between 9.00 a.m. and 12.30 p.m. on weekdays and to refrain from selling liquor, we believe they can be trusted to do the same on Good Friday.

Supermarket Hours of Opening for Licensed Business

Weekday Opening for Licensed Business

5.4.1The weekday hours during which supermarkets may sell liquor are the same as those which apply to all on-licensed and off-licensed premises.

5.4.2The supermarkets are unhappy with this situation. They say that customers like to be able to buy their liquor along with their other groceries for the week. If customers arrive at 9.30 a.m. on Saturday morning they find it inconvenient that they cannot buy their beer or wine along with their other groceries and must come back later - if they come back at all.

5.4.3The supermarkets further claim, since they do not sell liquor for consumption on the premises, that the range of public concern issues which affect on-premises sales do not hold true for them. The issues of public order, road safety and public drunkenness are not of the same magnitude since the liquor bought is more likely to be for domestic or other non-public consumption.

5.4.4We agree with this as a general principle. The risks posed by supermarket off-sales are fundamentally different in nature and degree from those posed by on-sales. Therefore the legal constraints which should be imposed on their operation should also be different. It is true that much public drinking by young people in parks and other public or quasi-public places results from off-licence sales. However, we have no reason to believe that this particularly results from supermarket sales and, even if it did, we are not convinced that controls over normal day-time hours of sales would be an appropriate way of dealing with it since public houses also engage in off-sales. Public drinking by young people can be better tackled by education and Garda enforcement than by restrictions targeted specifically at supermarkets, or at off-licences generally.

5.4.5While we find the arguments presented to us by the supermarkets to be reasonable in the context of their general retail trade in a wider range of products that liquor, we must be mindful of our objective to achieve greater uniformity in the licensing system generally and, for this reason, we do not recommend, in the matter of weekday morning opening times, that supermarkets should be subject to different hours than those applicable to other licensed premises.

5.4.6We have recommended, as part of the wider reform of licensing provisions, that any future system should involve a standard form of licence in respect of retail sales and that any differences, such as is sought in the present case, should be reflected by the imposition of conditions (including permissions) suitable to individual circumstances. We will return to this point in the next section but, for the moment, and pending the introduction of such a licensing system, we favour maintaining the status quo in respect of supermarket weekday opening times.

Sunday Opening for Licensed Business

5.4.7The supermarkets have also suggested that they should be free to sell liquor on Sundays during the same times they are allowed to sell their other products. We have already accepted the idea that liquor licensing law - as opposed to other laws - should not impose controls over the hours during which supermarkets open on Sundays for their non-licensed business.

5.4.8The issue facing us now is whether we should recommend that supermarkets should be able to sell liquor at any time they are lawfully open for trading on Sundays. There are reasons for recommending free sales. As we have already observed, liquor sold by supermarkets is not for on-premises consumption and, consequently, the dangers to the public good are less.

5.4.9Allowing liquor to be sold by supermarkets at any time on a Sunday represents a significant change from the present situation and may, we suspect, result in a considerable change in the way Sunday is perceived by the community as a day separate from the rest of the week which has a special leisure and rest character.

5.4.10Thus while we are inclined to allow some leeway to supermarkets as regards hours of sale of liquor on Sundays, we do not wish to totally replicate what would be the position on other days. In doing this, we are mindful, once again, of harmonising licensing provisions as between different retail outlets in the interests of a simpler, more uniform licensing system. We have already recommended the abolition of Sunday afternoon closing for on-licensed premises and we so recommend in respect of supermarkets and other off-licensed premises also.

Licensed Areas in Supermarkets

Licensed Areas Within Premises

5.5.1Another issue affecting supermarkets concerns the particular area of a supermarket which is licensed for sales under an off-licence and whether the Gardaí possess adequate means of enforcing the law in relation to that area.

5.5.2Once a supermarket obtains an off-licence, the map which accompanied the court application will indicate the area in which sales of liquor may take place. In most cases this means that the entire supermarket is licensed. This suits supermarkets because it affords the freedom to move their displays of liquor around and the re-arrangement of displays is a necessary feature of any supermarket.

5.5.3There is a disadvantage for the supermarket in licensing the whole area of the shop. It means that the premises must close during the hours when opening for non-licensed trade is not permitted. As indicated earlier, those times are before 9.00 am on weekdays, before 12.30 p.m. on Sundays, between 2.00 p.m. and 4.00 p.m. on Sundays and all day on Good Friday and Christmas Day. Since supermarkets wish to be free to open during many of these times, they find the requirement to close inconvenient.

5.5.4 In an attempt to get around the closure requirement, some supermarkets have applied to the District Court to license only a portion of their premises - thus giving up some freedom to move their display of liquor round - in order to be able to open the non-licensed portion for non-licensed sales during these times. Usually this would not seem permissible because of the requirements of section 9 of the Licensing (Ireland) Act, 1872, which prohibits the existence of internal communication between licensed areas and unlicensed areas used for public resort. However some lower courts have apparently held that section 9 does not apply in these circumstances and have accordingly created situations in which there is free internal communication between licensed areas and unlicensed areas.

Garda Rights of Entry and Inspection

5.5.5One consequence of this which the Gardaí are concerned about is that, while they have a statutory right of entry and inspection into licensed areas, they have no such right in relation to the unlicensed areas. They are concerned that this impedes their ability to enforce the law effectively.

5.5.6Whatever about the proprieties of the courts’ interpretation of section 9, and we express no view on this other than to say that it would be helpful if the higher courts had an opportunity to rule on the matter, we do sympathise with the objective which the supermarkets have in mind, that is, a freedom to trade their non-licensed business outside the currently permitted opening times. Since we have already recommended that supermarkets should be free to open for both non-licensed and licensed sales for longer hours than is currently the case, we feel that this should addresses the reason supermarkets are inclined to seek to exclude portions of their premises from their licences. For the future, we recommend that the law should be amended to prevent courts from licensing only a portion of a supermarket. The area for non-licensed sales should be the same as the area for licensed sales.

5.5.7This leaves unresolved the present Garda difficulty of gaining access to the entire supermarket where a portion of it has been de-licensed. A related difficulty arises in the case of supermarkets and other licensed premises in shopping centres where the licensed area is wholly contained within the centre and the Gardaí cannot gain entry to the area directly from the public roadway.

5.5.8In these cases the Gardaí do not have any statutory right of entry across the unlicensed areas - external or internal - in order to gain access to the licensed area and enforce the law there. The Garda authorities are concerned with this situation and, in an attempt to alleviate this concern in some instances, the owners of the intervening areas - usually the owners of the shopping centres - have conferred in written documents an irrevocable licence in land law terms on the Gardaí to enter the centre for the purposes of gaining access to the licensed area.

5.5.9It is far from satisfactory that the Garda facility to enforce an important code of law should depend on the will of the landowner, no matter how it is presented. This is not a proper safeguarding of the public interest in controlling liquor sales, despite the fact that it is always open to Gardaí who experience difficulties in this area to object to the renewal of the licence.

5.5.10In order to deal with this situation it seems to us that there must be some mechanism for allowing Gardaí access to unlicensed areas which are used in conjunction with licensed areas. Such a mechanism could involve empowering the licensing authority to define the extent of the non-licensed area used in conjunction with the licensed area and to confer a right of Garda entry to that area. Another approach would be to simply state prescriptively in legislation that where an unlicensed area is used in conjunction with a licensed area that the Gardaí have a basic right of entry into both areas. The extent of that right could then be left to be determined in the courts.

Off-Licences

5.6.1In this section we address the issues facing the stand alone off-licence sector, as represented by a group like the National Off Licence Association (NOffLA).

Current Permitted Hours

5.6.2The current opening and selling hours applicable to stand alone off-licences are the same as those applicable to supermarkets (which we detailed earlier in this part) and off-licences will thus benefit from the measures we have already recommended in relation to supermarket permitted hours for licensed business.

5.6.3Stand alone off-licences see themselves as similar to public houses but different from supermarkets in that they currently stay open for longer hours in the evenings when much of their custom arises. If public houses are free to conduct off-sales up to closing time, as is the case, we consider that the off-licence sector should be able to. Therefore, if our recommendation concerning later opening times for on-licences is acted upon, we recommend that off-licences should also be able to trade up to the later closing times.

5.6.4One of our Members, Deputy Noel O’Flynn, opposed this recommendation and asked to have this recorded.

Section 47 of the Intoxicating Liquor Act. 1988

5.6.5We received opposing submissions from the supermarket sector and the stand-alone off-licence sector regarding this provision and its implementation. It is currently not in force but the supermarket trade fears its potential and have asked us to consider recommending its repeal. Conversely, the stand-alone off-licence sector demands its immediate implementation.

5.6.6Section 47 was enacted in order to have a means available on the statute books to require supermarkets to sell liquor from specific liquor areas, across specific liquor counters and not generally from open shelves. It was considered that controlling and directing all liquor sales in such a way would assist in preventing sales to under-age persons.

5.6.7The supermarkets assure us that they now train their staff specifically as regards the risks of under-age selling and that many of them operate policies of only selling to persons aged over 21 years. They also say that, if it was brought into force, the law would be impractical and would entail considerable expense and inconvenience. On the other hand the stand-alone off-licence sector urge us to recommend its implementation because they consider it would be an effective means of controlling under-age drinking.

5.6.8In our view a physical structure separating sales of liquor from other commodities in a supermarket does not in itself make under-age sales less likely. What influences the likelihood of under-age sales is the training and attitudes of the sales or point-of-sales staff. We would need to be convinced, firstly, that there is a significant problem of supermarket under-age sales at present and, secondly, that separate sales areas would make a significant contribution to dealing with the problem. We have not been so convinced. We also believe that we should not lightly make a recommendation which, if implemented, would entail new practical difficulties and costs (which would be passed on to the consumer) for supermarkets in the service they provide for their customers.

5.6.9Thus we do not recommend the repeal of section 47. We consider that its presence on the statute books is a useful reminder to the supermarket trade of the importance of preventing under-age sales and of what could happen if the law is not properly observed.

Part 6: Theatres, Hotels, Restaurants and Nightclubs

Contents

Introduction

6.1.1In an earlier part, we have outlined a licensing system characterised by a single type of licence bearing conditions tailored to the individual circumstances of the venue. Thus the type of licensed activities and, in many cases, the nature of the venue itself will be determined by the particular set of conditions applied to it rather than by a description prescribed in statute as is the case at present.

6.1.2We have also proposed that, within the scope of the system we have outlined, there should be a distinction between venues in which the sale of liquor is the primary activity and those where liquor is sold as an activity that is ancillary to another principal activity, whether sporting, entertainment, dining, leisure, tourism, etc.

6.1.3Thus, in the case of the latter type of venue, there will be conditions attached to the licence which will, in various ways, require that the sale of liquor may only occur either with, in association with or in some other way connected with the principal activity carried on at that venue.

6.1.4We have recommended that the Circuit Court be established as the sole licensing authority and that it would be responsible for prescribing conditions prior to the granting or renewal of licences. In addition, we have listed a number of activities and venues (interpretative centres, leisure and sports clubs, commercial conference centres, museums, galleries, etc.) which would, at present, find it difficult to obtain a licence but which would, under the system we propose, be able to apply to the Circuit Court for a licence. The Circuit Court could, if the venue is within the terms of the statutory provisions, and if satisfied itself as to the propriety of the venue and its management, grant the licence and attach the conditions it deems appropriate and necessary.

6.1.5In this part, we describe some of the existing licensed venues (theatres, hotels, restaurants and nightclubs) where the sale of liquor is, in theory, secondary in relation to some other activity and we indicate the types of conditions which might apply to these venues under the system we propose so as to better reflect the nature of this relationship while, at the same time, maintaining the essential nature and identity of each venue.

Theatre Entertainment

Applicable Conditions

6.2.1The condition, proposed in an earlier part, that liquor may be sold for consumption with theatre entertainment is intended to replace the theatre licence issued under the Excise Act, 1835.

6.2.2We are not satisfied that theatre licences should be used in the wide range of instances in which they are currently being used. However, we do recognise that some licensing arrangement should exist for deserving theatre-based entertainment venues although, as at present, the liquor should only be consumed in conjunction with the entertainment and not without it.

Scope of Definition of “Theatre”

6.2.3We prefer the word “entertainment” in the condition rather than “theatre” since we believe it reflects better the reality of what the licence will be issued for but, realising that the term “entertainment”, if used alone, is open to a wider interpretation than we envisage, we would propose the term “theatre entertainment”.

Hotels and Accommodation Providers

Applicable Conditions

6.3.1The condition, proposed in an earlier part, that access to the area where liquor is provided must in some cases be through the interior and not directly from the street is, among other conditions, intended to apply to hotels or other types of accommodation provider where the licensing authority considers that the only liquor permission that should be offered to the establishment is one which allows non-resident as well as resident sales but seeks to limit them in some way by requiring access to the bar through (say) the hotel lobby.

6.3.2Other ways of controlling liquor availability would be by limiting the appeal of the bar to non-residents by banning any local advertising of its liquor facilities (except of course if taken in conjunction with a meal) or by limiting the size of the licensed area.

6.3.3We appreciate that the view exists at present that the Circuit Court must license the entire area of a hotel by virtue of the wording of the relevant statutory provision. We do not consider that such a view should always apply and that the hands of the licensing authority should be tied in this way. Rather the authority should have the flexibility to be able to mould the licence to individual circumstances by attaching appropriate conditions in relation to such matters.

Hotels Operating as Pubs

6.3.4In many cases, hotels carry on their licensed business under an unrestricted publican’s seven-day licence. It has been brought to our attention that a number of hotels exist which have the minimum number of bedrooms necessary to qualify as a hotel and are operating public bars and lounges on a scale which is far in excess of what would be expected to be adequate for a hotel of their size.

6.3.5The fact that a licence operated in a hotel confers a number of permissions which are additional to those of an ordinary publican’s licence (without a restaurant certificate) is less of a factor in explaining this than the fact that an unrestricted seven-day publican’s licence is more easily obtained by qualifying as a hotel than by other means, requiring only the extinguishment of one licence from anywhere in the country in order to have the restriction on operating a public bar (imposed as a restriction on hotels under 2(2) of the 1902 Act) removed. This is a clear abuse of the procedure for converting a restricted publican’s licence to a full publican’s licence in respect of a bona fide hotel is intended and it is one we would be anxious to see discontinued.

6.3.6We considered a number of options to discourage the opening of hotels, having the bare minimum number of rooms required by law, for the main purpose of operating a pub-type operation. These included-

(a)increasing the existing required number of bedrooms;

(b)relating the size of the bar to the number of bedrooms;

(c)relating the size of the bar to the size of normal dining area;

(d)allowing no direct street access to the bar;

(e)requiring that two licences be extinguished;

(f)prohibit advertising designed to attract non-resident trade.

We have already mentioned some of these options in the context of the general conditions which may be attached so as to define the nature of licensed activity which may be undertaken in individual circumstances.

6.3.7However, the sub-Committee has already recommended that a new licensing system should be simplified and, in particular, that there should be only one type of retail on-licence (differences between individual types of premises being determined by the addition of conditions to the licence). To further refine the already confused hotel licensing provisions would be in conflict with this recommendation. We would also expect that some of what we have suggested in relation to the administration of licensing by the Circuit Court and the imposition by that Court of temporary closure penalties at and between renewals would have the effect of, at least, deterring some of the unlawful developments in this area.

6.3.8We accordingly make no specific recommendation in relation to hotels, in view of the other recommendations we have made.

Restaurants and the Special Restaurant Licence

Applicable Conditions

6.4.1The condition, proposed in an earlier part, requiring the consumption of food and/or a meal with liquor could be one of a number of conditions which might replace the existing special restaurant licence. We received a number of submissions concerning the way the present restrictions on the sale of liquor under this licence operate. Most were critical though some were approving. We understand the restrictions can be irksome, inconvenient and difficult to enforce, though we also see why they were introduced. Whatever about the other restrictions, we support the ban on operating a public bar in a special restaurant. This we feel effectively separates the public house from the restaurant and makes it more difficult to abuse the licence.

Changes to Special Restaurant Licensing Requirements

6.4.2However, the issues surrounding the sale of liquor in restaurants arise, as we see it, not so much from the nature of the restrictions as from the manner in which they are created. We do not believe that restrictions on selling liquor in restaurants should be prescriptively set out in legislation where inevitably too much focus will be placed on the precise and fragile wording used. Instead we think that there should be a case by case approach (supplemented if necessary by statutory guidelines though not regulations) to the issue of what restriction should be placed over the sale of liquor by restaurants and this should be decided by the Circuit Court, taking account of all relevant considerations.

6.4.3In that regard we do not think that undue weight should be placed on the fears of publicans about threats to their trade. In fact the reverse should be the case. From a public policy point of view the restaurant should be more encouraged than the public house because it seeks to combine food and drink and in so doing greatly reduces the dangers of on-premises consumption of liquor. In line with the governing principles of licensing policy which we set out at the start of this report we believe that the law should assist rather than obstruct the activity of genuine restaurants.

6.4.4It has been indicated to us that the requirements of the Special Restaurant Licence (Standards) Regulations, 1988 can, in many cases, go somewhat beyond what is necessary to ensure that only restaurants of a certain standard may apply for a licence. We recommend the relaxation of the regulations but their retention as non binding guidelines for the use of the Circuit Court in attaching conditions to a licence.

6.4.5In addition, the statutory requirements that intoxicating liquor may be consumed, in advance of a meal, only when a substantial meal has been ordered and, after a meal, only for a period of 30 minutes are unduly restrictive and we consider that, once a restaurant has complied with the other requirements necessary to obtain a licence, the availability of intoxicating liquor to customers should not be subject to such stringent control.

Nightclubs

Applicable Conditions

6.5.1Nightclubs are not recognised as such in existing law. In general, they operate on the basis of special exemptions granted by a court in respect of an existing bar or hotel licence. They represent that part of the law which allows drinking to take place outside normal statutorily prescribed hours in association with another activity such as food, dancing, entertainment, etc.

6.5.2The requirements which exist at present oblige a nightclub to have the following permissions:

(a)a publican’s licence,

(b)a dance licence,

(c)a restaurant certificate, and

(d)a special exemption order.

Nightclub Certificate

6.5.3We believe that the number of different permissions required to operate a nightclub should, in the interests of simplicity, be minimised but that they should also relate to a wider range of issues than is currently the case. We recommend that a single permit should be granted by the Circuit Court to the holder of a publican’s licence authorising the operation of a nightclub but that the Court would first have certified to it evidence of compliance with a range of matters which we outline below. We do not envisage that the Court itself would inquire behind any such matter so certified to it and, indeed, for it to do so would be a considerable burden on its time. Nor are we convinced that the formal environment of a court and the evidential machinery available to it would be an effective means of establishing the facts in relation to these matters.

Certification by Local Authority

6.5.4As to how the wide range of issues surrounding nightclub activity, including planning, location, food hygiene, fire regulation, health and safety, noise pollution and the availability of ancillary service facilities such as parking, access and so forth may be addressed, we recommend that these matters be scrutinised by the local authority for the area in which the premises is situate and, if satisfied that such standards as it may prescribe have been complied with, that the local authority should then supply the applicant with a certificate of suitability to operate a nightclub.

Nightclub Permit

In keeping with our earlier recommendation that the Circuit Court should be the sole licensing authority, we also recommend that it should be the authority for the issuing of nightclub permits. Once it has received an application, accompanied by a publicans licence and the certificate issued by the local authority, then the Court should determine matters such as the additional hours, owner suitability (“fitness”), staffing (“door supervisors”) and, where relevant, the dance licence before issuing a nightclub permit.

Other Features of Nightclub Permit

6.5.5We envisage a three further specific characteristics of a nightclub permit which we consider important if the measures we propose are to be successfully implemented.

6.5.6Firstly we recommend that a nightclub permit should be renewed at least annually to allow for the ongoing review of its operation.

6.5.7Secondly, and in keeping with the requirement of owner suitability, a nightclub permit should relate to a named person and should not be transferable without application to the Circuit Court for the identification and establishment of the new owner as a suitable person in all respects as though the transfer were an application for a new permit.

6.5.8Thirdly, as a measure to ensure that the terms of the permit are complied with between annual renewals, we recommend that the Gardaí (from a law enforcement viewpoint) and the local authority (in so far as ongoing compliance with the nightclub certificate is concerned) should have the authority to apply to the Circuit Court at any time to have sanctions imposed where there is evidence or there are concerns that the permit is not operated lawfully. We envisage that this provision, albeit through third-party application to the Court, will also provide an avenue of action in respect of public grievances on foot of which a complaint is made either to the Gardaí or the local authority. We have recommended earlier that a similar provision be introduced in respect of retail on-licences.

Nightclubs in Residential Areas

6.5.9We are aware that there is widespread concern at the effects of later drinking and the movement of large numbers of people can and do have on residential areas which enclose, or are in close proximity to, nightclubs. A number of the issues which, as we recommend above, should be placed within the responsibility of local authorities are designed to address these problems.

6.5.10Realising that it is the dance licence, as much as the later hours of drinking, which gives rise to these situations, we also recommend that the relevant provisions of the Public Dance Halls Act, 1935 be expanded and updated to reflect the developments in the nature of the dancing facilities which have occurred since the measure was enacted.

Definition of Nightclub

Although we have recommended against attempts to prescribe in law the characteristics of various types of venue where licensed activity may be undertaken during statutorily permitted hours, we do consider that, since the nightclub type of activity is one which takes place outside of those hours and for periods which are in the discretion of a court, it is important to describe in law the activities in respect of which this discretion may be exercised. We recognise that this may prove difficult for the reasons we have already outlined as being symptoms of the present, over-prescriptive system but we recommend that it is necessary to ensure that some guidance is given to the Circuit Court in administering the other provisions we have outlined for nightclubs.

Part 7: Under-Age Drinking

Contents

Under-Age Drinking

Introduction

7.1In the submissions we received and during our hearings, concern was expressed about the incidence of under-age drinking.

7.2The legislation in this area was updated and codified in the 1988 Act. The main focus of that Act is the complete interdiction of the supply of intoxicating liquor to those under 18 years of age. A defence is allowed where the accused person can show that he or she had reasonable grounds for believing that the young person was over the age of 18 years. The Act also provides the framework for the introduction of a national age card scheme. However this provision has not been brought into force yet and we understand that there are no immediate plans to do so.

7.3Besides bringing a prosecution, it is also possible that objections can be made to the renewal of a publican’s licence on the basis that under-age drinking goes on, but we are not aware that this option has been used or that any licensees have lost their licences as a result.

7.4In its essential respect, that of criminalising the supply of liquor to persons under 18 years of age, and in allowing a defence of reasonable belief of proper age, our legislation is broadly in line with that of other countries except on the age issue (for example, many US states now adopt 21 years as the age for lawful drinking and New Zealand adopts 20 years as the age) and also in not allowing some measure of lawful drinking by those under 18 where it is taken in the context of a meal and while with their parents or guardian (in France it is permissible to serve selected softer alcohols to those between 16 and 18 provided they are accompanied by their parents or guardian and without the need for a meal).

Age Cards

7.5There are a number of voluntary age card schemes in operation around the country. These are operated by the local Gardaí in conjunction with parents, schools and publicans. There appears to be a variable picture as regards their effectiveness. There is much anecdotal evidence about the ease with which such cards can by tampered with to facilitate their dishonest use.

7.6We received many requests to recommend the activation of section 40 of the Intoxicating Liquor Act, 1988 and the introduction of a national age card scheme alongside the maintenance of the reasonable belief defence. A number of the interested parties seem to look on such a scheme as a panacea to their difficulties in identifying whether or not a person is under 18 years of age. We are not convinced of this view. The existing schemes have not, so far as we are aware, been studied in any great depth or lessons learned from their operation. It is not obvious how a national scheme under the present law would cause an improvement in the situation, especially in those areas which currently operate schemes. Further there will always be the risk of alteration or forgery with such cards which, given the common experience with the voluntary schemes, may be significant enough - though we must also be careful to avoid exaggerating that risk, given available technology. There is also the whole question of how such a scheme would be structured and funded, how it would be supervised, who would produce the card, how tamper-proof and forgery-proof it would be, and then there may be questions concerning the willingness of young people to obtain them.

7.7Nevertheless it may be that, if properly researched and structured, a national scheme would be effective. We are aware of the scheme operated in England by the Portman Group and consider that it might usefully be applied here. We therefore recommend that the Department of Justice, Equality and Law Reform and the Department of Health and Children establish a research group in conjunction with all interested parties to produce a report on the options and strategies for establishing a national age card scheme.

7.8We wish to reiterate the point we made earlier. We do not consider it would be satisfactory to simply recommend the activation of section 40 and permit the publican to use the display of the age card as the basis for a defence. That would not lead to any significant improvement in the incidence of under-age drinking in licensed premises. it would merely mean that a national scheme had replaced the local schemes. It would not mean that the licensee had any greater reason to be as careful as they should be in querying customers whose age they are unsure about. In our view, progress in reducing under-age drinking is more likely to be made with the more radical idea of abolishing the reasonable belief offence and simultaneously introducing the national age card scheme.

Penalties - Increased Fines

7.9The maximum penalties for convictions of holders of liquor licences and others for providing liquor to those under 18 are not onerous. They are £300 for a first offence and £500 for subsequent offences. Where the holder of a licence is convicted, the licence must also be endorsed. We doubt if these figures reflect the view that under-age drinking is a serious matter. In order to make it clear that it is serious and to deter the minority of licensees who do deliberately set out to profit from under-age drinking we recommend that these figures be increased to £500 in the case of first offence and £1,000 in the case of subsequent offences.

Penalties - Closure of Premises

7.10We consider it unduly restrictive of the District Court’s powers that statute has not conferred a power to order the temporary closure of a licensed premises on the presentation of evidence that under-age drinking is taking place there. We therefore recommend the enactment of a statutory provision which would empower the District Court - either as part of a criminal prosecution for under-age drinking or by virtue of an application by the Gardaí on foot of adequate and proper evidence - to order the temporary closure of a premises for a period which is proportionate to the incidence of under-age drinking on the premises. Recognising that the evidence necessary for prosecution would be difficult to obtain, we consider that the penalty we outline can only be introduced in the context of an age card scheme which has been fully and successfully implemented.

Enforcement of Under-Age Laws

7.11The view may be taken by some that the Gardaí are not doing enough to combat under-age drinking and, while we accept that they always have to prioritise their resources and tend only to investigate where there is a specific complaint, we are inclined to consider that the Gardaí could be doing more in this area. If attitudes and policy within the Gardaí were more assertive on this matter, we would not have the volume of under-age drinking and we would not have the low numbers of criminal prosecutions which characterise the present situation. We do not accept that it is enough for the Gardaí to point out that they are put in an invidious position in enforcing a law about which there is so much public ambiguity, though we do accept that there it is never a wise legislative policy to rely excessively on enforcement to secure compliance with laws on which there is no firm social consensus.

7.12What can be done? There is a view that, with the few relatively minor changes which we recommended earlier, we as a society have probably reached the limit in substantive terms of how far we can go as regards criminal prohibitions in this area and that all that can be done is better enforcement and better education.

7.13There is, however, a another view which is that, if society as a whole is to continue to believe that legislative measures can effect desirable change in the incidence of public drinking by those under 18 years of age, we may have to embrace radical measures which may not be especially popular. We are not sure how prepared society in general is for such measures.

Radical Measures

7.14In our deliberations we have canvassed a number of possibly radical measures for dealing with under-age drinking and we list them here.

7.15The defence of reasonable belief that the person was under 18 years of age could be abolished. This would force publicans to be totally satisfied that a person is 18 before they serve them. This, on its own, would be a severe step and would no doubt be perceived by publicans as unfair. Yet it is hard to resist its appeal if public opinion continues to consider under-age drinking as a serious social problem which must be tackled effectively. The present defence is in fact a broad one and can be quite easily made out. The combined effect of the licensee and/or bar staff claiming reasonable belief and the effective burden of proof on the prosecution in criminal proceedings means that it can be difficult to secure convictions in all but the most glaring instances. If the bar staff claim that they reasonably thought the person who is under 18 was in fact 18, the prosecution has to effectively establish beyond any reasonable doubt that the bar staff could not reasonably have held that view. Given how problematic any individual judgement based on facial appearance about a young person’s age is, it would be hard for a District Court Judge to conclude in many cases that the prosecution has shown to the necessary standard of proof that the accused could not have reasonably thought that the person was 18.

7.16The defence of reasonable belief of age could be abolished and, simultaneously, a national age card scheme (statutory or otherwise) could be introduced. This seems a more attractive option. We see a symmetry between removing the defence and introducing a national age card scheme because the card scheme would be intended to provide the publican with a satisfactory and reliable means of proof of a person’s age. However it is important to point out that a national age card would merely be the mechanism for the publican to satisfy himself about age. It would defeat the purpose to allow a defence of having asked to see one or the claim that the card looked credible since, if such a defence was allowed, it would represent no more than the current law as it operates with the voluntary local age card schemes. We need hardly be reminded that the current law has not proved effective. The risk of forgery would be irrelevant to this idea since it would not matter legally whether the card was forged or not. The central issue would remain the objective question of whether the person was under 18 at the relevant time or not.

7.17We are attracted by the latter approach and consider that it could deal effectively with the under-age drinking issue. However we are reluctant to recommend its adoption without evidence that public opinion is ready for such a significant change in the law.

Unaccompanied 15 - 18 Year Olds in Bars

7.18It is convenient at this point to raise another related matter, namely, the present law under which 15 to 18 year olds are permitted in the bars of licensed premises during trading hours. The Gardaí have made the point that there is in fact no real need for this law since 15 to 18 year olds are unlikely to be in bars on their own, even for drinking minerals. Their unaccompanied presence carries the risk of possibly facilitating a desire and attempt to obtain intoxicating liquor. There is also the issue of the Gardaí, when inspecting a premises, being satisfied of the minimum age of the young person on the premises.

7.19We accept that the concerns raised by the Gardaí are valid and, while we have no data on the matter, we do not see that it is necessary for the law to continue to permit 15 to 18 year olds to be in bars unaccompanied. We therefore recommend that the 1988 Act be amended so as to ban 15 to 18 year olds from bars unless they are accompanied by their parents or guardians.

Employment of Persons Under 18 as Lounge Staff

7.20A final issue we wish to address concerns the employment of 16 to 18 year olds as lounge boys and girls in licensed premises. This appear to be an extensive practice. The usual tasks performed by these staff are taking orders, collecting drinks from the bar, distributing the drinks, taking the money and, often from their own float, giving the change. This is all done against the background of section 38 of the 1988 Act which provides that it is unlawful (with exceptions for apprentices and specified close relatives) for a licensee to employ or permit a person under 18 years of age to sell intoxicating liquor. The question which concerns us is whether the normal activities of young lounge staff amount to selling liquor or not because, if it does, it is illegal and should be stopped.

7.21So far as we have been able to ascertain, this issue has not arisen before the courts. While we cannot be definitive on the matter it seems to us that there is a plausible case for considering that there is sufficient selling involved in the lounge staff activity so as to constitute the offence.

7.22We recognise that the practice is widespread and that, apart from being an apparently socially acceptable institution, and whatever about its legality, it is of mutual benefit to the young persons themselves, the publicans and their customers. We consider that the position of 16 to 18 year olds acting as lounge staff should be regularised in law, in association with our earlier recommendations concerning the presence of 15 to 18 year olds on licensed premises for other reasons, but that constraints should be imposed prohibiting service behind the bar and, in whatever form considered appropriate, clearly confining the activity to the provision of floor service.

Part 8: Miscellaneous Reforms

Contents

8 Miscellaneous Reforms

8.1As we have proceeded through the various aspects of the licensing system which we have dealt with in earlier parts, and although we are aware that our review could have been wider in embracing numerous smaller items for reform, we list in this part a number of these items to which our attention was specifically drawn and which we believe are deserving of review.

Door Supervisors

8.2When considering the issue of special exemptions and, in particular our proposals concerning nightclubs, it was apparent to us that there is a requirement for licensed premises to have staff who are familiar with the management of large numbers of people, often in difficult circumstances which may arise late at night when people either arrive at premises in an intoxicated state and seek admission or become intoxicated while on the premises. The requirement is not confined exclusively to night-time licensed activity but it is at night that the most acute situations generally occur.

8.3The skills which are required to manage the often confrontational situations which can arise in these circumstances are often sadly lacking in the persons employed by many licensed premises and these persons often have as their primary objective the protection of their employer’s interest rather than the wider public interest objectives of avoiding violence, disorder and disturbance.

8.4A private member’s Bill was introduced in Dáil Éireann to deal with this matter but the Bill was defeated at second stage. While we realise that it is not a matter which, in its wider application to other activities such as sporting and entertainment events, is appropriate for inclusion in liquor licensing legislation, we do consider that it is among the many matters (some of which we have already dealt with) having a significant bearing on the conduct of licensed trade, particularly in the context of permissions for later trading.

8.5We have already recommended that a wider range of matters (relating to food, planning, location, noise, etc.) be taken into account in the issuing of licences and we accordingly recommend that standards for door-keeping personnel be introduced and that compliance with such standards should be a condition for the issuing of a liquor licence.

Street Drinking

8.6We are aware that, particularly in the Summer months, many premises provide tables and chairs outside their premises (i.e. in a place to which the general public have access either on or adjacent to a street) where the consumption of intoxicating liquor sold within the premises may be consumed. In many cases, premises which open directly onto a street and which own no area immediately outside their property, are in breach of the requirement that sale and supply should take place within the curtilage of the licensed premises.

8.7There are two aspects to this practice which we believe should be addressed:

(a)consumption of liquor under auspices of a licensed premises within the curtilage of the premises or in a street or other public place adjacent thereto; and

(b)uncontrolled consumption in public places generally of liquor acquired from licensed premises which are not necessarily nearby.

8.8We consider it reasonable that the practice of providing the facilities we have described should continue in the immediate vicinity of licensed premises and see no difficulty in the case of outlets which are in a position to do so within the curtilage of their own premises. An option for these premises which do not have an area suitable for this purpose would be to acquire a permit from the relevant local authority to provide the facility on the public street, subject of course to whatever restrictions are necessary in each individual case. We understand that such a provision has been introduced elsewhere and we recommend the introduction of bye-laws or regulations to provide accordingly.

8.9There is also the problem of the serious disruption to society caused by uncontrolled consumption in public places, leading, in many cases, to public disorder. In this area also, we recommend the introduction of controls.

8.10We enclose at Appendix 5 the text of draft bye-laws contained in a report of a sub-Committee of Cork Corporation on the matter and made available to the sub-Committee by Deputy Noel O’Flynn, a member of the sub-Committee.

Ad-Interim Transfers of Licences

8.11At present 3 criteria are examined in court where a licence is to be re-assigned on death or transfer of ownership:

(a)notice given of the application,

(b)the reason for the transfer, and

(c)that the applicant transferee is not disqualified by law.

A full examination of character occurs the following September on foot of which the court will then grant a certificate regarding the character and suitability of the transferee.

8.12We believe that a full examination of character should occur on the ad-interim transfer of a licence, especially in view of the importance of the issue of owner suitability in the proper and lawful operation of a licensed premises in all its aspects.

Licensing of Companies

8.13We are aware that the Supreme Court has ruled in the matter of the licensing of companies but, as there appears to us to be an incidence of licensed premises being used as a front for illegal activity, including money laundering, we recommend that the matter be re-visited in legislation.

8.14In particular we consider that, if the possibility of continuing to license companies in their own right is to be retained, it is desirable that the Court should be in a position to identify a person who is the principal controlling share holder of the company and, when licensing the company, to require the character examination of that person in court before the licence may be issued.

Occasional Licences

8.15The law governing the operation of occasional licences appears to function satisfactorily. We received no submissions which were critical of how, in general, the present law is applied by the courts and observed by the community and, thus, we do not consider that the broad area of occasional licences, nor the specific issues of whether their granting should continue to be restricted to publican’s licence holders or whether the range of circumstances for which such licences can be granted, should be broadened.

8.16Our attention was drawn to one aspect of the law itself, namely, the ban on the granting of occasional licence for Sundays contained in section 11(5) of the Intoxicating Liquor Act, 1962. We received a number of submissions from regional agricultural shows requesting that we recommend the removal of the ban. Many agricultural shows take place only on Sundays while others take place on Saturdays and Sundays. In 1966, there were 140 shows affiliated to the Irish Shows Association. Sixty six shows were held on Sundays.

8.17The agricultural shows say that they experience a range of difficulties associated with being unable to obtain an occasional licence for Sundays. If the show starts on a Saturday, they say that it can cost up to £250 to obtain the licence and that they are limited to recouping this cost on one day’s trading. The costs of providing the drinking facilities, such as a tent, counters, tables, chairs, etc. are also only recoverable in a single day’s trading. The possibility of sponsorship from the drinks industry is reduced because their products cannot be sold on Sunday afternoon, which is often the day of largest attendance. Additionally, those attending such shows do not understand why liquor cannot be obtained at the show on Sunday when local public houses are open for the permitted Sunday hours.

8.18We are sympathetic to the difficulty which the agricultural shows face and we do not see any injury to the public good which might be caused by permitting in law the granting of such licences for Sundays. Elsewhere we have recommended that on-licensed premises should be able to open from 12.30 p.m. on Sundays through to 11.30 p.m. However we cannot recommend the same times for occasional licences on Sundays because, under section 11(10) of the 1962 Act, an occasional licence can only apply after 10.00 p.m. if the event in question is a dinner or dance.

8.19We therefore recommend that straightforward deletion of the word “Sunday” from section 11(5) of the 1962 Act. This will operate to confer on the District Court (or, as we have recommended, the Circuit Court) a discretion to grant occasional licences from 12.30 p.m. to 10.00 p.m. on Sundays and only beyond this where there is a dinner or dance being held.

Credit Sales of Intoxicating Liquor

8.20The sale of intoxicating liquor on credit is not permitted (other than in the case of off-sales or sales of liquor for consumption with meals) and all sales must be for ready cash. It has been brought to our attention that this effectively prohibits a number of practices which are common place in the modern context.

8.21For example, guests in a hotel may not pay for liquor when settling their account by credit card and the provision of “mini-bars” in hotel bedrooms may also be considered to infringe this prohibition.

Requirement to Prove Rateable Valuation of Premises

8.22In applying for a new licence, it is necessary to prove that the rateable valuation of the proposed licensed premises exceeds a threshold value, in the case of Dublin premises, of £30.00. Clearly any premises will, in the present day, have a rateable valuation far in excess of this amount and the continued requirement to prove rateable valuation merely serves to add unnecessary procedures in the granting of licences. In the present climate, the likelihood of any new licensed premises being of such a low standard as to require proof of sufficiently high rateable valuation is, given the intensive investment now attaching to the establishment of new premises, extremely small and we accordingly recommend the abolition of the requirement.

Pricing of Soft Drinks in on-Licensed Premises

8.23In many on-licensed retail outlets, the prices charged for soft drinks are higher than those charged for alcoholic drink and, while the Competition Authority is looking at pricing generally, we consider it sufficiently serious to warrant mention.

Interim Report of Former Committee

8.24In October, 1996, the former sub-Committee made an interim report concerning the following matters which it recommended for implementation to the Minister for Justice (as the Office then was).

8.25We wish to re-inforce these recommendations and we now re-iterate them.

Appendices

Contents

Appendix 1:Terms of Reference of-

1.the former Dáil Select Committee on Legislation and Security

2.the former sub-Committee on Liquor Licensing

3.the Joint Committee on Justice, Equality and Women’s Rights

4.the sub-Committee on Legislation and Security

Appendix 2:Members of-

1.the former Dáil Select Committee on Legislation and Security

2.the former sub-Committee on Liquor Licensing

3.the Joint Committee on Justice, Equality and Women’s Rights

4.the sub-Committee on Legislation and Security

Appendix 3:List of Persons and Groups who made Submissions and who attended Hearings of the former sub-Committee

Appendix 4:Interim Report of the Former sub-Committee on Liquor Licensing

Appendix 5:Draft Bye-Laws Contained in a Report of a Working Group of Cork Corporation

Appendix 6:Alcohol Related Indicators

Appendix 1: Terms of Reference

Terms of Reference of the former Dáil Select Committee on Legislation and Security

Dáil Éireann:

“(1)That a Select Committee, which shall be called the Select Committee on Legislation and Security, be appointed consisting of 21 members of Dáil Éireann, in addition to the ex officio members of the Committee referred to in paragraph (3), to consider the following matters relating to justice, law reform and defence, namely-

(i)the Estimates for Public Services relevant to the above-mentioned subjects,

(ii)the impact on equality of policy and legislation relevant to the above-mentioned subjects,

(iii)the Committee Stages of such Bills initiated in relation to those subjects as may be referred to the Select Committee under Standing Order 70* of the Standing Orders relative to Public Business,

(iv)such reports relevant to those subjects as Dáil Éireann may refer to the Select Committee for discussion, observations and recommendations,

and shall report thereon to Dáil Éireann.

(1A)That the Select Committee shall review, on a regular basis, the Official Secrets Acts and all other statutory provisions which restrict access to information and shall report thereon to Dáil Éireann with recommendations to bring them into line with the best international standards of public information provision.

(2)That the Select Committee shall have power to appoint sub-Committees and to delegate any matter comprehended by paragraph (1) to a sub-Committee.

(3)That the member of the Government in charge of the Department the statute law in respect of which is dealt with in a Bill which is referred to the Select Committee or a sub-Committee thereof or the Estimates for Public Services for which are considered by the Select Committee or a sub-Committee thereof shall be an ex officio member of such Committee or sub-Committee but such member of the Government may nominate a Minister or Minister of State to be such ex officio member in his stead.

(4)That the report of the Select Committee upon every Bill referred to it shall be set down for Report Stage in Dáil Éireann.

(5)That the Select Committee shall make an annual report to Dáil Éireann which shall detail

(i)the work carried out by the Committee,

(ii)the work in progress by the Committee,

(iii)the attendance and voting records at meetings of the Committee,

(iv)its future work programme, and

(v)such other matters as the Committee deems appropriate.

(6)That, subject to the consent of the Minister for Finance, the Select Committee shall have the power to engage the services of persons with specialist or technical knowledge to assist it or any of its sub-Committees in their consideration of any matters comprehended by paragraph (1).

(7)That the Select Committee may invite submissions in writing, if considered necessary by the Committee, from interested persons or bodies on any matter comprehended by paragraph (1).

(8)That, previous to the consideration of the Committee Stage of a Bill by the Select Committee, a briefing session or sessions shall be held between the officials of the relevant Department and members of the Select Committee (or sub-Committee as the case may be) and that such briefing session shall be held in private.

(9)That, in the absence from a particular meeting of the Select Committee (or of a sub-Committee) of a member, another member of Dáil Éireann, nominated by the Party or Group within the meaning of Standing Order 89** to which the absent member belongs, may take part in the proceedings and vote in his stead: Provided that in the case of a substitute nominated by a Party which is a Government Party, such substitute may be a member of another Government Party: Provided further that in the case of a substitute nominated by a Party which is an Opposition Party, such substitute may be a member of the Opposition.

(10)That the Select Committee and each sub-Committee, previous to the commencement of business, shall elect one of its members to be Chairman, who shall have only one vote.

(11)That all questions in the Select Committee and in each sub-Committee shall be determined by a majority of votes of the members present and voting and in the event of there being an equality of votes, the question shall be decided in the negative.

(12)That every report which the Select Committee proposes to make shall, on adoption by the Select Committee, be laid before Dáil Éireann forthwith, together with any document relating thereto which the Select Committee proposes to publish, whereupon the Select Committee shall be empowered to print and publish such report and the said document, or documents, as the case may be.

(13)That notwithstanding paragraph (12), where the Select Committee has completed Committee Stage of a Bill, it shall be empowered to print and publish the said Bill as amended, where appropriate.

(14)That the quorum of the Select Committee shall be five, and the quorum of each sub-Committee shall be a number to be decided by the sub-Committee when such sub-Committee is appointed.

(15)That no document received by the Clerk to the Select Committee or a sub-Committee thereof shall be with held, withdrawn or altered without the knowledge and approval of the Committee or sub-Committee, as may be appropriate.

(16)That Members of Dáil Éireann, not being members of the Select Committee, may attend meetings and take part in the proceedings of the Select Committee and of its sub-committees without having a right to vote.

(17)That the Select Committee shall have the power to discuss and draft proposals for legislative changes and new legislation for recommendation to Ministers which are relevant to the matters comprehended by paragraph (1).

(18)That the Select Committee shall have the power to receive submissions and hear evidence from interested persons and organisations.

(19)That the Select Committee shall have power to print and publish from time to time minutes of evidence taken before it together with such related documents as it thinks fit.

(20)That Ministers and Ministers of State shall discuss with the Select Committee, where practicable, general proposals for legislation relevant to the matters comprehended by paragraph (1) prior to such legislation being approved and published by Government.

(21)That all appointees to high office in the State shall attend meetings of the Select Committee, as appropriate, and subject to the legal constraints of their office, to discuss issues which are relevant to the matters comprehended by paragraph (1).

(22)That Ministers and Ministers of State shall appear before the Select Committee to discuss current policies relevant to the matters comprehended by paragraph (1) and the implementation of such policies in their Departments. A Minister or Minister of State may request the Select Committee to convene to enable him or her to explain current or proposed policy or to initiate a debate thereon.”

Terms of Reference of the former sub-Committee on Liquor Licensing

Ordered by the Select Committee on Legislation and Security:

“That the Committee or a sub-Committee thereof carry out a review of the liquor licensing laws with a view to making recommendations to the relevant Departments in relation thereto. That the Committee should seek the views of the Gardaí, the Vintners’ Association, the relevant Government Departments, and any other interested groups in carrying out this review.”

Terms of Reference of the Joint Committee on Justice, Equality and Women’s Rights

Dáil Éireann

(1) (a)That a Select Committee, which shall be called the Select Committee on Justice, Equality and Women’s Rights, consisting of 14 members of Dáil Éireann (of whom 4 shall constitute a quorum), be appointed to consider such—

(i)Bills the statute law in respect of which is dealt with by the Department of Justice, Equality and Law Reform and the Department of Defence, and

(ii)Estimates for Public Services within the aegis of those Departments,

as shall be referred to it by Dáil Éireann from time to time.

(b)For the purpose of its consideration of Bills under paragraph (1)(a)(i), the Select Committee shall have the powers defined in Standing Order 78A(1), (2) and (3).

(c)For the avoidance of doubt, by virtue of their ex officio membership of the Select Committee in accordance with Standing Order 84(1), the Minister for Justice, Equality and Law Reform and the Minister for Defence (or a Minister or Minister of State nominated in their stead) shall be entitled to vote.

(2) (a)The Select Committee shall be joined with a Select Committee to be appointed by Seanad Éireann to form the Joint Committee on Justice, Equality and Women’s Rights to consider—

Dáil Éireann (contd.)

(i)such public affairs administered by the Department of Justice, Equality and Law Reform and the Department of Defence as it may select, including bodies under the aegis of those Departments in respect of Government policy,

(ii)such matters of policy for which the Ministers in charge of those Departments are officially responsible as it may select,

(iii)the strategy statement laid before each House of the Oireachtas by the Ministers in charge of those Departments pursuant to section 5(2) of the Public Service Management Act, 1997, and shall be authorised for the purposes of section 10 of that Act,

(iv)such matters relating to women’s rights generally, as it may select, and in this regard the Joint Committee shall be free to consider areas relating to any Government Department, and

(v)such other matters as may be jointly referred to it from time to time by both Houses of the Oireachtas,

and shall report thereon to both Houses of the Oireachtas.

(b)The quorum of the Joint Committee shall be 5, of whom at least 1 shall be a member of Dáil Éireann and 1 a member of Seanad Éireann.

Dáil Éireann (contd.)

(c)The Joint Committee shall have the powers defined in Standing Order 78A(1) to (9) inclusive.

(3)The Chairman of the Joint Committee, who shall be a member of Dáil Éireann, shall also be Chairman of the Select Committee.”

Seanad Éireann

(1) (a)That a Select Committee consisting of 5 members of Seanad Éireann shall be appointed to be joined with a Select Committee of Dáil Éireann to form the Joint Committee on Justice, Equality and Women’s Rights to consider—

[Seanad Committee has no equivalent functions]

Seanad Éireann (contd.)

(i)such public affairs administered by the Department of Justice, Equality and Law-Reform and the Department of Defence as it may select, including bodies under the aegis of those Departments in respect of Government policy,

(ii)such matters of policy for which the Ministers in charge of those Departments are officially responsible as it may select,

(iii)the strategy statement laid before each House of the Oireachtas by the Ministers in charge of those Departments pursuant to section 5(2) of the Public Service Management Act, 1997, and shall be authorised for the purposes of section 10 of that Act,

(iv)such matters relating to women’s rights generally, as it may select, and in this regard the Joint Committee shall be free to consider areas relating to any Government Department, and

(v)such other matters as may be jointly referred to it fromtime to time by both Houses of the Oireachtas,

and shall report thereon to both Houses of the Oireachtas.

(b)The quorum of the Joint Committee shall be 5, of whom at least 1 shall be a member of Dáil Éireann and 1 a member of Seanad Éireann.

Seanad Éireann (contd.)

(c)The Joint Committee shall have the powers defined in Standing Order 62A(1) to (9) inclusive.

(2)The Chairman of the Joint Committee shall be a member of Dáil Éireann.”

Terms of Reference of the sub-Committee on Legislation and Security

Ordered by the Joint Committee on Justice, Equality and Women’s Rights:

“That-

(a)a sub-Committee (to be called the sub-Committee on Legislation and Security) be established to consider the following unfinished work of the former Dáil Select Committee on Legislation and Security-

(i)review of liquor licencing laws

(ii)such other unfinished work of the former Dáil Select Committee as the sub-Committee may select, subject to the approval of the main Committee, given in accordance with subparagraph (f) below, and

(iii)such other unfinished work of the former Dáil Select Committee as the main Committee shall refer to the sub-Committee from time to time,

and report to the main Committee thereon.

(b)the sub-Committee shall consist of 7 Members, 5 of whom shall be Dáil Deputies and 2 of whom shall be Senators; and

(c)the quorum of the sub-Committee shall be three, one of whom shall be a Senator and two of whom shall be Deputies;

(d)in relation to the matters specifically referred to it in paragraph (a) above, the sub-Committee shall have only those functions of the main Committee which are set out in sub-paragraphs (2)(a)(i) and (ii) (Dáil) and in sub-paragraphs (1)(a)(i) and (ii) (Seanad) of the main Committee’s Orders of Reference¹;

(e)the sub-Committee shall have all the powers of the main Committee), namely, those contained in Standing Order 78A(1), (2) and (4) to (9) (Dáil) and in Standing Order 62A (1), (2) and (4) to (9) (Seanad)²: provided that the powers to print and publish evidence, to travel and to engage consultants shall, in each case, be subject to the approval of the main committee; and

(f)before commencing its work, the sub-Committee shall prepare a work programme (to include the setting of a date by which it intends to complete the work set out therein) which shall be brought before the main Committee for approval.” .

Appendix 2: Membership of Committees

1. Members of the former Dáil Select Committee on Legislation and Security

2. Members of the former sub-Committee on Liquor Licensing

3. Members of the Joint Committee on Justice, Equality and Women’s Rights

4. Members of the sub-Committee on Legislation and Security

Appendix 3: List of Submissions Received

List of Persons, Bodies and Groups who made Submissions and who attended Hearings of the former sub-Committee

1.The Bar Council

2.Bord Fáilte

3.Dóthain

4.Dublin City Centre Business Association Ltd.

5.Dunnes Stores

6.Dublin Night Club Association

7.Graham O’Sullivan Ltd.

8.Irish Dance and Entertainment Industry Association

9.Irish Nightclub Industry Association

10.Irish Hotel & Catering Institute

11.Irish Hotels Federation

12.Irish Music Rights Organisation (IMRO)

13.Law Society of Ireland and the Solicitors’ Mutual Defence Fund (Maeve Hayes)

14.Licensed Vintners’ Association

15.Licensing Information and Consultancy Services

16.MANDATE

17.NOffLA

18.Restaurants’ Association of Ireland Limited

19.Retail Grocery, Dairy & Allied Trades’ Association (RGDATA)

20.Superquinn

21.Vintners’ Federation of Ireland

22.Wine & Spirit Association of Ireland

23.The Chambers of Commerce of Ireland

24.Mr. Henry Howard (Power Supermarkets)

25.Garda Commissioner

26.Mothers Against Drink Drivers (MADD)

27.Mr. John Donnelly

28.D.S.D. Group

29.Mr. Thomas Fletcher

30.Mr. Seamus Foy (2 submissions)

31.Glasnevin Avenue Residents’ Association

32.Mr. Bill Lawlor

33.T. A. Lombard

34.Mr. Marc McDonald

35.Mr. John Magauran

36.Mr. Sean Maguire

37.Michael Moore & Co. Solicitors

38.Mr. John Purcell

39.Mr. John Rabbitt

40.J.A. Shaw Solicitors (3 submissions)

41.Tennents Ireland Limited

42.Mr. James White

43.Ms. Samantha Leslie & Mr. Ultan Bannon

44.Mrs. Mary Cowhie

45.Tullamore Urban District Council

46.Ms. Josephine Lynch

47.Mr. Con Clifford

48.Mr. Jim Fitzgerald

49.Astro Park

50.Charleville Agricultural Show Society Ltd.

51.Irish Shows Association Ltd.

52.County Cavan Vintners’ Association

53.Mr. Eric Pollock

54.Mr. Richard Hanrahan

55.Mr. Vincent Duff

56.Ms. Deirdre Kelly

57.Limerick Show Society

58.Artane/Beaumont Family Recreation Centre Limited, Artane/Beaumont Family Recreation Club

59.Ballincollig Hurling and Football Club

59.Mr. Seamus Foy

59.Residents of Ballykea Cross, Skerries, Co. Dublin

59.Mrs. Valerie Ryan

59.Ms. Kathleen Tierney

Appendix 4: Interim Report

Interim Report of the Former Select Committee on Legislation and Security

Select Committee on Legislation and Security

Interim Report on the Liquor Licensing Laws

1.The following motion was passed by the Select Committee on Legislation and Security at its meeting on 20th February, 1996:

“That the Committee or a sub-Committee thereof carry out a review of the liquor licensing laws with a view to making recommendations to the relevant Departments in relation thereto. That the Committee should seek the views of the Gardaí, the Vintners’ Association, the relevant Government Departments, and any other interested groups in carrying out this review.”

2.The Select Committee invited written submissions on the liquor licensing laws from interested organisations and individuals. In addition, a number of unsolicited submissions were received by the Committee.

3.On 17th and 18th September, 1996, the Select Committee held oral hearings on the licensing laws with a number of organisations and individuals who had requested an appearance before the Committee.

4.On 17th September, Ms. Maeve Hayes and Mr. Tom Shaw appeared before the Select Committee on behalf of the Conveyancing Committee of the Law Society and the Solicitors’ Mutual Defence Fund, and made the following recommendations:

(1)In relation to the Register of Licences maintained in the District Court Offices, the Register should be up-to-date and should be absolute and capable of being relied on, save only in the case of fraud. Entries in the register should also be accompanied by a map, clearly showing the extent of the licensed area.

(2)The licence form for different types of licences should be clearly identifiable.

(3)In the case of licences where a doubt exists about the character of the licence, an amnesty should be introduced whereby if the holder of the licence can prove that he or his predecessor in title has operated the licence as a particular type of licence for a specified length of time, that the licence would be deemed to have the character which the District Court Register is giving it.

5.The Select Committee agrees with the recommendations set out in paragraph 4 above, and in accordance with paragraph (17) of its orders of reference, recommends them to the Minister for Justice for immediate action.

[2nd October, 1996]

(Signed) Charles Flanagan T.D.,

Chairman.

Appendix 5: Draft Bye-Laws

Appendix 6: Alcohol Related Indicators

¹ Key to subparagraphs of main Committee’s Orders of Reference referred to: (i)= public affairs administered by Departments; (ii)=matters of policy under Ministers’ responsibility; (iii)=strategy statements; (iv)=women’s rights; (v)= other matters referred by the Dáil/Seanad.

² Key to paragraphs of Dáil/Seanad Standing Orders referred to: (1)= take evidence; (2)= invite submissions; (3)=establish sub-committees; (4)=draft legislative change; (5),(6)=meet Ministers re policy/proposed legislation; (7)=meet principal office holders in State Bodies; (8)= consultants; (9)=travel.

* Senator Kathleen O’Meara was appointed in place of Deputy Frances Fitzgerald on 12th February, 1998.