Sinéad Gibney

In a newly-published review of the adequacy and effectiveness of section 19 of the Intoxicating Liquor Act 2003 against human rights and equality standards, the watchdog said the complaints mechanism should be brought into line with how other discrimination complaints are handled.

It said the law, as it standards, disproportionately impacts groups such as disabled people and members of the Traveller and Roma communities who are turned away from the doors of licenced venues such as pubs, restaurants and clubs.

While the vast majority of discrimination issues are heard by the Workplace Relations Commission (WRC), there is an exception in section 19, which sees alleged discrimination in entry to bars, restaurants, nightclubs and other places that serve alcohol forced into the District Court rather than the WRC.

The Commission said this sees the complainant having to hire lawyers and proceed through the more adversarial and challenging atmosphere of a court to seek redress, making the enforcement of important rights excessively difficult and in some cases virtually impossible.

One example case legally supported by the Commission in 2019 saw a pub customer with a brain tumour who was asked to leave the premises where he had been celebrating the end of rehabilitative treatment. The man’s condition causes a limp, and this was interpreted by staff as signs of intoxication.

Despite explaining his disability directly to staff, the man was asked to leave, which caused him significant distress and embarrassment. The Commission provided direct legal representation to the man in his application to the District Court for redress under the Intoxicating Liquor Act 2003. The matter was settled without court hearing.

Data provided by the Courts Service also reflects that a vast majority of the proceedings instituted in the District Court under the ILA 2003 were either struck out or withdrawn. An extremely small number of cases resulted in an order for compensation – 11 in total during the period of 2017-2019.

Under the old regime whereby discrimination claims in respect of licensed premises were dealt with by the Equality Tribunal, which preceded the WRC, the Tribunal issued 20 decisions concerning licensed premises in 2001, 45 decisions in 2002, and 64 decisions in 2003.

In particular, these instances disproportionately impact members of the Traveller and Roma Communities and other groups such as disabled people who are effectively prevented from receiving adequate access to justice.

Chief commissioner Sinéad Gibney said: “We need to ask why there is a different legal approach for being discriminated against at the door of a pub, restaurant or club than in any other type of shop or service. This is a systemic equality issue which must be removed if we are to achieve equal access to justice.

“We maintain our long-standing position that the current mechanism is not fit for purpose. Multiple international human rights monitoring bodies, including the Committee on the Elimination of Racial Discrimination, have also criticised the State for failing to take actions to effect this change.”

“We have made it clear to government that victims of discrimination deserve access to efficient and clear mechanisms to seek justice. Anything less is unacceptable.”

Christopher McCann, solicitor in FLAC’s Traveller legal service, said: “IHREC’s report lays bare the disproportionate impact of section 19 of the 2003 Act on the Traveller community.

“Of the drastically reduced number of discrimination cases taken to the District Court, the majority were taken by Travellers and only a tiny number of those cases resulted in an order for compensation. It is clear that the 2003 Act has stemmed the flow of discrimination cases against licensed premises by erecting significant procedural, practical and legal obstacles.

“The exclusion of Travellers from pubs, restaurants and hotels, deprives them of the opportunity to celebrate life’s important events, such as births, christenings, birthdays and weddings, in the same manner as the wider population, and constitutes effective cultural segregation. The 2003 Act protects a category of respondents from responsibility for unacceptable discrimination to the detriment of some of the State’s most vulnerable communities.

“It must be urgently repealed. If action is not taken by the government on foot of this report, we note that IHREC have the power to take own-name proceedings to challenge this regressive law.”