It's time to get the courts out of pub licensing, writes Marc McDonald.
The District Court is not a suitable place to deal with liquor licensing matters or applications for bar extensions.
The recent reports from the Commission on Liquor Licensing disappoint greatly in failing to recognise this, and in failing to inspire a debate on the kind of body best suited to executing public policy on the retail sale of liquor.
Indeed, the commission even recommended an enhanced role for the District Court in liquor licensing, and it is virtually certain that this will be acted on. Reform proposals being prepared in the Department of Justice, Equality and Law Reform to update and consolidate liquor law will reflect the commission's preference.
Why is the District Court not suitable for hearing liquor licensing and bar extension applications?
Firstly, liquor law has historically been too complex to be satisfactorily administered in the District Court.
Secondly, liquor law has not been reformed frequently enough for the court system to be able to overcome the problems inherent in using prescriptive national legislation to tackle a complex social problem.
Public problems related to abusive and excessive liquor consumption are too dynamic, complex and variegated to be capable of being adequately addressed by a reactive, prescriptive, judicially-centred system without any professional health-based mandate.
Thirdly, the District Court operates according to procedural rules, mandatory rules of evidence and burdens and standards of proof, and cast legal issues that are neither necessary nor conducive to effective administrative control of liquor sales.
It means we are using legal formalism and not proactive management as the leitmotiv for our administrative framework. Are the proofs in order, rather than what is the health dimension? And the outcome is that, while the proofs are constantly in order, pessimists watch the country get drunker, more disorderly and more alcoholic.
Fourthly, for reasons beyond its control, the District (and Circuit) Courts have not often enough shown themselves able to resist commercial demands for more drinking opportunities.
Trade pressure to sell more liquor is hard to resist when a judge has not been trained in an appropriate awareness of public health dimension, and when the narrow role placed on District Court judges by the law does not encourage this.
The result has been that during the 1990s and into the 2000s the court system has overseen the massive increase in abusive public consumption of liquor. Sadly, there is every reason to suspect, once anticipated reform beds down, that unhappy trends will continue
The fundamental problem is that a court and a judge are unsuitable instruments for administering public policy over an activity that operates dynamically and destructively, and requires constant intervention and management.
Liquor licensing is relatively unique in being administered by the courts and, among comparable states, it is difficult to think of any other state that uses courts to do it the way we do. Many states use different types of public agencies, with the better ones joining the administration of public controls with defined public health functions so that in every decision there is an imperative consciousness about public health issues as well as consumer need and trade equity.
We do not have to look far to see one possible model of a modern agency that promotes health protection and oversees trade controls - the Food Safety Authority of Ireland (FSAI). This authority is not a court and yet enforces controls, monitors trends, intervenes and promotes good practice. It is also centrally based with a national remit, yet is still able to operate locally.
It can close places down (without going to court) for grave and immediate dangers to public health. What a revolutionary idea. To close down a pub because the way it sells liquor is conducive to abusive consumption?
How many years will it take and how much legal pettifogging will have to be endured before policymakers realise that risks to public health from irresponsible liquor sale practices are as great as risks from irresponsible food sale practices and justify equal measures?
Sadly, the way we view liquor sales control is conditioned by our history, and we seem to know only one way of doing it - through the courts. The courts have their role. Certainly, they should be involved with liquor crime. But whether we like it or not, trends are moving licensing away from its traditional focus on trade equity, competition protection and public order (note how recent legislation has extended court powers to order temporary pub closure as a punishment for a liquor crime).
As this happens, and as public health emerges the really key policy issue, it is inevitable that more questions will be asked about the policy justification for District Court involvement in licensing.
Marc McDonald is a lecturer in hospitality and tourism law at the Dublin Institute of Technology in Cathal Brugha Street.