Author: Dr Oliver Bartlett, : Assistant Professor of Law, Assisting Living and Learning (ALL) Institute, School of Law and Criminology, Maynooth University
Research Stream: Social Lives
In October 2022 the Department of Justice published the Sale of Alcohol Bill. The publicly announced purpose of this legislation was to reform Ireland’s sprawling and disparate alcohol licensing rules and to bring Ireland’s nighttime economy closer to that of other major European cities. However, it emerged that the potential public health problems raised by a liberalisation of alcohol licensing were ignored at the highest political level. Based on a report launched on 20th October 2023 at Maynooth University, this post will summarise and contextualise the children’s rights impacts of the reform, which also appear to have been neglected.
The Convention on the Rights of the Child (hereafter CRC) advances four general principles for the protection of children: non- discrimination; protecting children’s best interests; safeguarding the life, survival and development of the child; and ensuring that children’s views are considered in all matters affecting them. Rights aimed at safeguarding life, survival and development should be particularly taken into account in the design of alcohol licencing law, the most important of which are Article 6 on the right to development, Article 17 on the right to appropriate information, Article 24 on the right to health, and Article 31 on the right to play and recreation.
The most prominent failures of the Bill to protect these rights are as follows.
- The Bill does not sufficiently protect children from exposure to drinking culture, which violates their right to development, right to health, and right to appropriate information.
- The loose restrictions placed on the ability of children to enter a bar, often only lightly policed in more rural locations, are inconsistent on the definition of a child – this allows older children greater access, which is inconsistent with the ethos of the CRC.
- The problem of access is not simply that children could consume alcohol when in a bar. It is also that children start to be socialised into drinking culture before they are properly able to understand the dangers of alcohol consumption, which might lead to riskier consumption during adulthood.
- Children are not sufficiently protected from online alcohol sales, which violates their right to health.
- While it is straightforward to refuse sale in a premises if an individual is believed to be underage, this becomes difficult when the conclusion of a contract for the sale of alcohol and its delivery are separated.
- The Bill exacerbates this difficulty by placing no duties on delivery persons to check the age of those consuming the alcohol, nor providing powers to refuse to hand over alcohol.
- Although children are still permitted to consume alcohol within a private residence with parental permission, the lack of controls over online alcohol sales increases the likelihood that children can consume alcohol in a setting with no protections or oversight.
- Alcohol can be sold close to children’s learning and social spaces, which violates their right to play and recreation.
- There are no provisions in the Bill to prevent pubs or off-licenses from being established in close proximity to playgrounds or schools. The Bill also makes it easier for cultural venues in which children are invited to spend leisure time to secure an alcohol license.
- Duties on licensees to prevent children from consuming alcohol are too weak, which violates their right to health
- The Bill does not impose general duties of care for the protection of children upon licensees. While licensees are obliged to remove children from their premises when they believe their presence could ‘reasonably be regarded as injurious to his or her health, safety or welfare’, it is difficult to always know what this means. The standard of reasonableness is flexible enough that licensees could lawfully take no action whether they were confident or not confident that it was met.
- The defence available to licensees if they are prosecuted for unlawfully permitting children to be in their premises – exercising all due diligence to prevent the unlawful presence – is equally vague.
These failings must of course be placed within their constitutional context. The Irish Constitution gives strong protections to the rights of parents to make decisions about the social education of their children. Although the courts have in recent years softened the threshold at which State interference with parental decision making on private family matters is permitted, it is still difficult for the State to regulate the way in which parents decide to teach their children about alcohol consumption.
However, given the known deficiencies in leaving children’s alcohol education entirely up to parents, the State should ensure that in public spaces children are protected from the negative impacts of alcohol availability. The State should also do more to ensure that socio-economic conditions exist in which children’s exposure to alcohol in private spaces is less likely to lead to harm. As Judge Paul Kelly, President of the District Court , remarked at the launch of the report, alcohol consumption is a causal factor in a large number of matters handled by the District Court. As Aubrey McCarthy, Chair of the South Western Regional Drugs and Alcohol Task Force, also remarked at the launch, alcohol-related harm is pervasive in Irish society, and more can and should be done in particular to prevent children from suffering as a result. In this context, as report author and ALL Institute Member Dr Ollie Bartlett remarked, it is disappointing that the Irish Government has missed the opportunity afforded by this Bill to ensure that children are strongly protected from the sale of alcohol. It is even more disappointing that the likely negative public health impacts of the Bill will undermine the positive direction of Irish alcohol policy set by the adoption of the Public Health (Alcohol) Act 2018.
This legislation looks set to move through the Dáil slower than the government initially anticipated. In light of this, there will be greater opportunity for further advocacy surrounding the Bill. During the next stage of the debate, the government should consider the following recommendations in light of the children’s rights analysis summarised above. The duty for licensees to remove children from their bars should be clarified and strengthened, to ensure that children remain protected from premature socialisation into drinking. The obligations, duties and powers surrounding the online sale of alcohol should be examined more carefully, and strengthened to make it harder for children to purchase alcohol online and drink unobserved in private spaces. The definition of children in the Bill should be brought in line with the understanding of children in international human rights law as persons aged 18 and over, so that Irish licensing law no longer offers weaker protection to older children. Finally, the Bill should be revised so that the conditions upon which licenses can be granted and opposed better reflect a concern to protect public health, and especially the health of children.