Pubs and restaurants are among the businesses worst hit during the pandemic, with most still closed or substantially restricted. Uncertainty about accommodating customers during the outdoor summer is an unwelcome worry for businesses doing their best to survive, but one that should have been anticipated.
Anyone familiar with how liquor licences are granted was not surprised at An Garda Síochána highlighting the limits of those licences. They are usually subject to conditions imposed at the request of An Garda Síochána and the local fire officer, and are granted on the basis of plans outlining areas covered by the licence as well as connecting areas not licensed. To avoid loopholes in enforcement, those plans are often the most scrutinised element of a court application. The evidence of an engineer or architect is required, often met with probing questions about where a particular door or corridor leads to. A key reason for this is the specific Garda powers in relation to licensed premises, such entering without warrant. The same powers do not apply to non-licensed areas.
The request by the Minister for Justice that Garda discretion be used could introduce further uncertainty, not to mention the risk of abuse. The Minister urged those involved to “sit down and find a local solution” to what is a national, legislative issue. There has been reference to confusion emerging but on one point there is no confusion: selling alcohol outside of a licensed area is illegal. A conviction for breach of this rule is one of the more serious offences possible.
Constance Cassidy SC, the leading Irish authority on licensing law, said on Today With Claire Byrne this week that patrons consuming alcohol outside a licensed area is not a breach of the licence, but these comments clearly distinguished between sale and consumption. Furthermore, beer gardens, for example, are usually included in the licensed area of a premises. Footpaths and parts of a public road are not. The issue, and grey area, which has arisen is seating areas outdoors, sometimes on footpaths and streets not owned by the licensee, for sale and service of alcohol. A local council may have granted permission for this, but that does not and cannot enlarge the licensed area for the sale of alcohol.
There has been criticism of the Gardaí in how the issue has been handled, but licensing is a technical area of the law that is difficult to enforce. It is likely that the Gardaí are concerned with the difficulty of enforcing some breaches, like unruly behaviour and opening hours, more than sales outside licensed areas. It remains to be seen what the terms of this new discretion will be. There is little doubt, however, that it is an arbitrary quick fix. Directing garda discretion does not deal, for example, with incidents in an unlicensed area leading to insurance claims or objections to the renewal of a licence.
The Taoiseach’s suggestion that the issue can be handled with a bit of “cop on” appeals to common sense but is inadequate. It is difficult to reconcile the scrutiny applied in court licensing applications, not to mention the time and cost involved, with a suggestion that the boundaries of a licensed area are no longer that important and can be set aside at the discretion of gardaí. It is unlikely that the discretion will go that far, more likely is that a fudge will emerge which nevertheless requires that no sale transactions take place outside a licensed area.
The solution was identified by Cork publican Benny McCabe, quoted in this newspaper on Monday, who said that “the only way is to make it legal”. The problem is that a quick fix is unlikely. We are living in extraordinary times and circumstances, and we remain subject to extraordinary legal restrictions. Pushing exceptions and flexibilities to these restrictions, and other long-standing areas of the law, by resorting to “local solutions” and “cop on” is not appropriate.
What is clear is that our system of regulating the sale and consumption of alcohol is hopelessly out of date and unrealistic. Recent years have seen piecemeal changes to address some of the extraordinary restrictions on alcohol sales, like new producer retail licences for microbreweries and the end of the Good Friday ban. The latest upset is not the first time that licensing law has featured in covid news, with takeaway drinks being a repeat example. Unfortunately, despite reform being recommended almost 20 years ago by the Liquor Licensing Commission progress has been slow. Efforts by Michael McDowell, then Minister for Justice in the wake of the Commission’s report, met with extraordinary opposition from a number of quarters.
Irish society does continue to have hazardous drinking habits, but a long history of highly restrictive licensing laws has not improved that. We must consider that reform and a more mature attitude to the sale of alcohol may be part of the solution. Our laws are confusing and antiquated, carrying unnecessary cost and uncertainty for hospitality businesses. The pandemic may have begun to subside, but the demand for a different way of using urban and public areas will not. Changes to the laws that regulate our hospitality industry, nightlife and cultural events will have to address that demand.