Motion to Approve
Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010
Baroness Hamwee (Liberal Democrat)
My Lords, when I first read the draft order I thought it was really rather poor. However, I then reflected on whether an order that seems to me to be poorly drafted and incomplete should be opposed for those reasons, unless given the subject matter it was also positively harmful. The order is seeking to address real harm. The Minister has referred to the cost to society and to individuals through alcohol abuse.
I do not want to sound pious about this and in case anyone thinks I should not be speaking because I drink so very little, I will acknowledge that on medical forms I should perhaps say "yes" to the question, "Do your friends comment on your drinking?" because they do. I have criticisms and some questions but from the Front Bench I will say now that we are not inclined to oppose the order.
My first concern is that as licensing has been transferred to local authorities the authorities should be left to set the conditions. Can the Minister tell the House what the response of the Local Government Association, or maybe LACORS, was to the consultation? I would have thought that a menu of possible conditions from which a local authority as a licensing authority could pick would have been preferable but I understand that national guidelines issued to councillors mean that their discretionary power to reject a licence application has been severely curtailed. This leads me to ask what the status of the good practice guidance will be-which I understand from the debate in the Commons the Government are to issue?
I conducted a very small straw poll of councillors who have licensing responsibilities and their response was that this might be useful but was largely irrelevant-irrelevant because of the wider considerations of whether to grant the licence in the first place and the review of the licence. The detail of these conditions is not needed. There have been many occasions in your Lordships' House when I have proposed amendments to legislation and been warned of the danger of lists because of what is almost inevitably omitted. In addition, it seems to me not only is paragraph 1(2) of the schedule in danger of omitting descriptions of certain behaviour that should be there if the list were to be complete, the more detailed I think the more easily avoided or evaded.
We are not in a position to amend this order. Perhaps, and this would have answered the point raised by the noble Lord, Lord Skelmersdale, if paragraph 1(2) had simply stated "an irresponsible promotion means one or more activities carried on for the purposes of encouraging the sale" and so on, up to the word "children", without describing what those activities were, I think that would have met the point.
I have criticisms of some other detail in paragraph 1(1) of the schedule. The responsible person, let us call him the licensee for this debate is to take all reasonable steps to ensure staff do not carry out or participate in irresponsible promotions. I would have thought that a licensee should be under strict liability to ensure that the staff do not get involved in such promotions. Paragraph 3 refers to,
"tap water where reasonably available".
Where is it not available in the sorts of premises that we are talking about?
Paragraph 2 refers to disability, which is defined in the 1995 Act as "substantial or long-term". Concern has been expressed that that would catch somebody who is unable to drink, but not long term unable to pick up a glass, perhaps because of two broken wrists. I was in the position a few months ago of being offered operations on both hands at the same time, which I rejected. I would not have been able to pick up a glass at that point. The noble Baroness is laughing. My response to the surgeon was, "I would need a wife". More seriously, can the Minister meet that concern and explain just what that paragraph means?
The noble Lord, Lord Skelmersdale, referred to mouth-to-mouth transfer of alcohol. I do not think it is mouth-to-mouth; the word is "directly", which is a bit different. Can the Minister confirm that this does not catch the yard of ale which is a custom in some places? If one were to say to a friend, "What do you think of this? Taste this", would that be de minimis and not something which would cause a breach of the conditions?
Your Lordships will have had a good deal of lobbying expressing concern about age verification. I am perhaps not as troubled as others seemed to have been, but let me put the question this way. Can the Minister confirm that there is nothing to stop the higher age limit of, say, 21 or 25 being applied and that checking that someone was not under 21 or under 25 would actually meet this provision? Can he also say how formal the policy, which is the word used in paragraph 4, would have to be-a separate policy pub-by-pub, club-by-club? The largest cost by far for affected premises relates to this. It is important to know that this is as straightforward as possible for each of them.
Can the Minister also explain the extent of the term "premises licence holder"? Concern has been expressed, and it was in the Commons I think, about distance sellers being caught; for example, if you order a case of wine over the internet. I do not regard that as being caught. It does not seem to me that the term "premises" or "served alcohol" would apply, but it would be good to have that on the record.
The major criticisms are that the order does not entirely cover the off-licence trade and most of all that it does nothing to promote minimum pricing. I say that most of all because it would according to what I have seen of the lobbying and reporting of the issues generally and common sense, it would do most to help reduce binge drinking and drinking by children. It would also ensure that people whose consumption is moderate are not penalised as they are by increases in duty, nor would it penalise responsibly run pubs. I raise it although as far as I can see the underlying primary legislation does not allow for this and it could not be done by statutory instrument. The Minister may have a comment on that as well. Though we are not much persuaded by the draft order, that is not the same as opposing it and we will not do so.