It was absurd that a regulation passed by Westminster to deal with a problem in 1902 could bar entry to the licensed trade in 2005, writes Michael McGrath.
Want to open a pub? To do so you need to extinguish the licence attached to an existing licensed premises, at a cost of up to €180,000.
The reason for what may seem an odd law is that in 1902 the Westminster parliament froze the number of pub licences in Ireland for five years. This arose out of a concern that corrupt magistrates were too liberal in licensing new premises.
That freezing, which had the effect of adding value to licensed premises, was continued until 1924 and then became permanent, even though the problem of non-professional magistrates had been ended by the establishment of our modern court system in 1923.
Today it is nonsense to suggest that a temporary measure passed to deal with a problem in 1902 should be a barrier to entry to the licensed trade in 2005.
Minister for Justice Michael McDowell, in the context of his codification of the drink licensing laws which date back to 1735, has decided to place liquor licensing on a modern footing consistent with the Government-approved principles of better regulation.
The issuing of licences will continue to be controlled: those controls will reflect life in Ireland in 2005, not 1902.
For example, planning permission will be the main determinant of whether a premises should be licensed. Furthermore, the Minister believes that certain types of premises should be encouraged and so has proposed that small cafe bars be licensed without the requirement to extinguish an existing licence.
In a recent article on this page senior counsel Constance Cassidy (April 28th) expressed reservations about the Minister's cafe bar licences and wrote that such a licence already exists in the form of the special restaurant licence.
However, a special restaurant licence differs from a cafe bar licence in one glaring respect: there cannot be a bar in a premises with a special restaurant licence, whereas a cafe bar is a bar.
It is difficult, therefore, to support an argument that we already have cafe bars.
What's more, there are strict rules about ordering intoxicating drink in restaurants. It is illegal, for example, to order an after-dinner digestif after your meal in a premises with a special restaurant licence. Those restrictions will not apply to cafe bars.
Ms Cassidy suggests that the proposal for cafe bars is flawed because there is no obligation on the patron to have food with the drink, thereby negating the benefit of such licences.
However, outside of places such as North Korea, it is not compulsory to eat food on certain occasions. Are we really to have a situation in which a prisoner has to explain to his cellmates that he was sent down for not eating tapas?
The point of the Minister's proposal is that food must be available for those who want it, and if it is not made available, the licence will be lost.
The Strategic Task Force on Alcohol condemned the increase in the number of outlets that would result from the Minister's proposals. Apparently, competition strategy is not one of the task force's responsibilities - its concern is public health. However, unless problem drinkers develop the gift of bilocation, each can be in only one pub at any one time and the number of other outlets in the State is thus irrelevant.
In the unlikely event that an increase in the number of outlets has any effect on problem drinking, it will be a positive one because a problem drinker can do less damage in a small, intimate premises than in a superpub. That reality will also help gardaí to enforce the liquor licensing law because small premises are easier to police than large premises.
A subtext of much of the criticism of the Minister's proposals is the fallacy that we can pass laws to make people good. We cannot.
Should someone choose to abuse intoxicating liquor there is nothing that the Minister for Justice, the Minister for Health, or any other politician can do about it.
The only person who can prevent binge drinking is the binge drinker by choosing to drink more responsibly.
The duty of the Minister for Justice is to put in place a modern system of regulation within which people can choose how to consume intoxicating drink, if at all. Michael McDowell's enlightened and civilised proposals deserve the support of all.
Michael McGrath is legal consultant to the Department of Justice on the Intoxicating Liquor Codification Bill and author of Liquor Licensing Law in the Butterworths' Irish Annotated Statutes series.