Clause 32 - Sale of intoxicating liquor toa person under eighteen

Criminal Justice and Police Bill – in a Public Bill Committee at 10:45 am on 1st March 2001.

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Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton 10:45 am, 1st March 2001

I beg to move amendment No. 5, in page 24, line 19, leave out `nobody could' and insert `he could not'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to take the following amendments: No. 102, in page 24, line 23, after `for', insert `written'.

No. 103, in page 24, line 23, after `age', insert `or a prescribed card'.

No. 104, in page 24, line 25, at end insert—

`or the card was obviously a forgery'.

No. 105, in page 24, line 25, at end insert—

`( ) The Secretary of State may by order prescribe a card or cards establishing the age of persons.

( ) Such a power shall be exercisable by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament'.

No. 107, in page 24, line 25, at end insert—

`( ) For the purposes of subsection (2) of this section a person shall be treated as having taken all reasonable steps to establish another person's age, if he complies with guidance that the Secretary of State may issue about the use of proof of age cards.'.

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton

I was not singled out in the Minister's earlier Ofsted report either for praise or blame, but I am always brief and I shall be so this time.

It is important to restrict the sale of alcohol to people who are over the legal age. One often sees young teenagers who have obviously taken alcohol, and it is clearly far too easy for them to buy it. As the clause stands, the seller would have a defence if he could prove that nobody could reasonably have suspected from a person's appearance that he or she was under 18. We believe that the clause is too narrowly drawn. Judging someone's appearance is subjective, not objective. The seller can be responsible only for his or her judgment on the day, not for a judgment that anyone else might conceivably make. Their judgment may partly depend on their experience of teenagers—for example, their knowledge of how young girls can look many years older than their age. I recently told the Minister a story about my daughter, who was able to buy age-related products that she should not have bought when she was only 13 or 14. As she was almost 6 ft tall at the time, it would have been difficult to blame the retailer for being unaware that she was well under 18.

If the test is to be that nobody could reasonably have thought that the person was under 18, that inevitably leads to the view that one can be certain of someone's age only if they produce a proof-of-age card. That is the most reasonable step that can be taken to ensure that a person is of a certain age. I strongly support proof-of-age card schemes, and I recently launched one locally. The young people involved, who were from an independent school and a state school, thought that it would be helpful if they were able to buy other age-related products, of which there are a range, including fireworks and cigarettes. However, it has not been easy to persuade a large number of retailers consistently to use the scheme, so there has been a disappointingly slow take-up. If young people are not regularly asked for a proof-of-age card, there is less incentive for them to get one.

The logical consequence of the clause, and of the fact that there are local proof-of-age card schemes with varying degrees of success, is the introduction of a national age card scheme. The Minister has responded to that proposal in the past, and perhaps this is not the time for him to do so again in detail, but I hope that it has been seriously considered by the Home Office.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Amendments Nos. 102 to 105 and 107 would change the clause to ensure that proof-of-age cards or other written evidence would be the focus of the licensee when he or she establishes evidence of age. Obviously, underage drinking concerns the trade, the general public and all political parties, so we must tackle it.

The industry supports initiatives related to proof-of-age cards, such as the Portman Group's ``Prove It'' scheme and ``Validate''. Furthermore, the trade is doing good work in training licensees and staff to eliminate underage sales. The effect of current proposals will be that retailers must ask to see proof of age. The concern is that unless there is an effective system that establishes the right card or document, retailers and licensees will not have the tools to police the proposed system, in which case it would be too easy for them to break the law unknowingly by selling to children who do not look their age.

The Association of Licensed Multiple Retailers, the Brewers and Licensed Retailers Association and the Association of Convenience Stores take the view that the Government should either have a national proof-of-age card of their own or should designate the necessary requirements for such cards. The ALMR states that it

``echoes the recommendation of the Health Select Committee in its inquiry into the health risks of tobacco that the Government should forcibly endorse independent effective proof-of-age card schemes. The ALMR accepts that the Government may be reluctant to endorse a single commercial venture, but believes that the Government should clearly set out the criteria against which such schemes may be judged. This should include the geographic and age-related coverage of the scheme.''

It also points out that

``the Alcohol and Society survey, conducted by MORI for The Portman Group, found that 83 per cent. of people support the compulsory use of proof-of-age card schemes in order to tackle under-age drinking.''

We should like a progress report from the Minister on his views on proof-of-age cards, which is something that I know he has discussed with the industry. We also want to know what is happening with the Department for Education and Employment Connexions card. Would the Government prefer retailers to ask for that?

Finally, I agree with the hon. Member for Taunton that there are difficulties for retailers in determining the age of many customers. The Association of Convenience Stores states:

``A recent survey asked staff in high street shops selling age-restricted products to determine the age of five young people aged between 14 and 20. Nine out of 10 staff had difficulty in determining young people's ages. If there is to be a more stringent regime governing under-age sales with tougher penalties''— which is the purpose of the clause—

``retailers need the tools to be able to police such a regime. The ACS believes that a credible and reliable proof-of-age card universally recognised and accepted by the public as a whole is the only means of giving retailers and their staff the reassurance they need''.

Whether we are discussing is a universal card, the criteria for a clutch of cards or the DFEE Connexions card, we want to probe the Government's thinking. How will they give the people at whom the clause is aimed the tools to do the job? What should retailers ask to see, and will they be free of liability if they have seen it?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office 11:00 am, 1st March 2001

At the risk of being quoted against myself at some point in the future, I can say that this is an important issue that has been well debated and discussed. I apologise to the hon. Member for Taunton for not having been able to refer to her in my Ofsted assessment. I place it on the record that her contributions, like those of her colleague, have always been pithy and to the point.

Amendment No. 5 would introduce a subjective rather than objective test of age by providing that the retailer does not have a duty to ask the customer for proof of age when the retailer forms the opinion that he could not reasonably have suspected from the customer's appearance that he or she was under 18. The hon. Lady referred to her own daughter as an example. We ask her to withdraw the amendment, because it would undermine the purpose of the clause by reducing the obligation on the alcohol retailer to take steps to ask for proof of age from the customer in appropriate cases.

The use of an objective judgment of age, based on appearance, is more desirable than a subjective estimate. It avoids the possibility of staff on licensed premises avoiding asking for proof of age on the basis of their own subjective opinion, which would be difficult to challenge in court. The amendment would deny the courts the right to test a defendant's judgment against that of an ordinary reasonable person.

The Committee may be interested to know that, in some interesting research by Professor Paul Willner at Swansea university, published by the Alcohol Education and Research Council last August, test purchasing studies were conducted using 13 and 16-year-olds. His research showed that many retailers who demanded to see the card—60 per cent. did not do so, which is unsurprising because that is not yet part of the culture—went on to make the sale, even when the card confirmed that the child was under age. That surprised me, but it is backed up by evidence.

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton

I am confused by what the Minister is saying. On one hand, he says that the only objective test is the proof-of-age card; the logic of that is that he should accept the amendments tabled by Conservative Members. On the other hand, he says that it would not be a defence to say that, on that day, the retailer judged by the person's appearance that the customer was over 18, if other people might have made a different judgment. That suggests that the court might take a group of people and ask them how old they judge the customer to be. Most people would judge a person in school uniform to be under 18, but if that person wore high heels and make-up—I am assuming that the person is female—it would be easy to believe that she was over 18.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

It may be like that in Taunton, but it is not in Norwich.

My inclination is towards the objective test and the proof-of-age card system, as I shall make clear when we discuss the other amendments. However, in having an objective test, we should not take away the obligation of the retailer to exercise his or her power in selling alcohol to young people responsibly. The amendment would increase the subjective element and diminish the objective element. Perhaps the hon. Lady will withdraw it when I have spoken about the objective test.

As the hon. Member for North-East Hertfordshire said, amendments Nos. 102 to 105 would provide that the production of written evidence of age or a prescribed card would meet the ``all reasonable steps'' defence, unless it were shown that the evidence was such that no reasonable person would be convinced by the card, or the card was obviously a forgery. The amendments suggest that the Secretary of State may prescribe one or more cards by statutory instrument. We are sympathetic to the point. We have had substantial discussions with the industry and have concluded that the case for proof-of-age certification is powerful. We are actively considering the best way in which to deliver that, through further discussions with the industry.

Three different alternatives are under consideration. First, we may use the Connexions card issued by the Department for Education and Employment, which would be given to all 16 to 19-year-olds in education. It might be possible to add a proof-of-age element to that. That is attractive for the reason mentioned by the hon. Member for Taunton—the card would be used for other facilities as well—and it is also obviously administratively attractive and effective. We are still discussing how to proceed, but that option would be attractive if it could be achieved. It has serious limitations, because the card would be issued to all 16 to 19-year-olds in education, which begs the question of how to deal with 16 to 19-year-olds not in education. We are considering whether there is a way round that problem.

The second alternative that we are examining is the creation of a national structure for the wide range of proof-of-age cards that already exist, providing a framework of certification or ratification to make them work together. In many ways, that is the most attractive option, because well-established organisations that we respect greatly have worked well to develop such an approach.

The third option is that of a specific national proof-of-age card. We have not ruled that out, because there may well be a case for it if we cannot succeed with either of the alternatives, but it is less attractive, because it would require setting up a separate structure for what is the rather limited purpose of dealing with the proof of age for alcohol, rather than with a range of matters.

I emphasise, because it is important in relation to amendment No. 105, that the Secretary of State already has the power to issue guidance; that does not need statutory backing, and I give the hon. Member for North-East Hertfordshire the absolute assurance that we are ready to do so. We are not opposed to that amendment in principle. We simply do not think that it is necessary, because guidance can be issued without statutory backing.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Our real concern is that at present a lot of youngsters are using cards that are forged or borrowed, which is unsatisfactory. There is a plethora of cards that could prove their age—anything from a student union card to a driving licence. Is it not urgent to sort out what the proof of age should be? Can the Minister give us a timetable by which the Government's deliberations will be complete and we will know what is the real proposal?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I accept that the matter is urgent. When I became a Home Office Minister and started convening the seminars on alcohol to which I have referred, which have been constructive, I was struck by the strong force of opinion from a wide range of organisations about the urgency of that matter. I cannot give the hon. Gentleman a timetable to satisfy him, but I can tell him that we are urgently and actively considering the matter and count it a high priority. The greatest problem in conducting discussions is that the Connexions card appears to be the best option for many reasons—it would be uniform in character and would overlap with the student union card in many colleges of further education—but we have not yet been able to find a full solution to the problem of those in the age range who are outside education. We are considering that actively and urgently.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I do not know whether the Minister can help us on this, but there is a strong rumour circulating in the industry that the DFEE may not be happy with the idea of its card being used in that way, because part of the purpose of the Connexions card is to give benefits to those who undertake study. Without lifting the veil too much, can he tell us whether using that card is really a runner, or whether he is really thinking that the DFEE is not keen and it would be best to go for the clutch of cards approach?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

My colleagues at the DFEE are committed to that approach. This week, I met the Education and Employment Minister, my hon. Friend the Member for Redditch (Jacqui Smith) to discuss alcohol and education, precisely to consider how to work together more effectively. However, there is the difficulty that the hon. Gentleman mentions: some people within the education system are keen that the card should be focused on that system; I understand and respect that view, but it makes reaching agreement difficult.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

An issue cropped up some years ago when I took on someone who was in his last year at university. He had been involved in a trial project of age-related cards. He was about 20-years-old, but looked about 16. He worked for me periodically until he was 25, when he still looked about 17 or 18. We must bear in mind the civil liberties issue involved when those who are not necessarily at university or institutes of education might always be expected to keep producing proof of their age well into their 20s. It is the opposite case to that cited by my hon. Friend the Member for Taunton, of people who look considerably older than they are.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

Identity cards are a difficult issue. The Government do not want to follow that course at the moment. Speaking personally, I do not have civil liberties objections to identity cards. There is a strong case for having one card instead of a plethora of cards. However, that is not the Government's position. The hon. Gentleman is right that such issues need to be resolved. The utility of having a card is so powerful that it is worth trying to solve the problem. As I explained to the hon. Member for North-East Hertfordshire, that is why the Government intend to take such action.

We are sympathetic to amendments Nos. 102 to 105, but we do not believe that they are necessary. I hope that they will not be pressed to a vote. We do not agree with amendment No. 107, because it implies that guidance issued by the Secretary of State could be used to evade the responsibility not to sell to minors. It is important to reinforce the role of retailers and to say that they have an obligation under the law if they decide to trade in such products. The proof-of-age card is to help them, but it does not take away from their obligation to go through the process.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

May I take the Minister back to amendment No. 5? It concerns someone being prosecuted for selling drink to someone under age when the test says that no one could reasonably have suspected from his appearance that he was under 18. Will he reflect on the question of objectivity? Strict liability should be used only with the most careful approach.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I emphasise that there is no obligation on the licensee or retailer to sell. I have no right to go into an off licence and demand that beer be sold to me. If there is any doubt, there is no obligation to sell. The British Institute of Innkeeping says in its advice to the trade that, if there is any doubt, one should not sell. That should be the position, particularly in respect of alcohol and young people. If there is doubt, the sale should not be made.

Not long ago, I visited several off licences in the Wirral where sales were taking place to young people who were drinking high-proof alcohol in parks. I discussed that with the licensees and the retailers and they accepted the point that, along with a proof-of-age card, they need a regime that reinforces their ability to take such action and become involved in partnerships with the police and others to help them. That is the thinking behind the clause. With that, I hope that hon. Members will not press the amendments.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 11:15 am, 1st March 2001

I stress that, apart from the organisations that I have already mentioned, I have also discussed the matter with the BLRA, Whitbread, Shepherd Neame, McMullen's and other big companies involved in the industry. They feel very strongly the urgency of the Government's deciding what proof of age should be. I want to stress that point and press as strongly as I can the urgency of the problem. We need a solution. On that basis, I will not press our amendments to a vote.

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton

Having listened to the Minister's arguments and having thought further about the matter, I still agree with my hon. Friend for Southwark, North and Bermondsey that ``nobody could'' is a high test. The amendment, to say ``he could not'', could be criticised for allowing too much leeway. On reflection, a better amendment would have been ``a reasonable person could not''. I take on board the debate on a proof-of-age card scheme. The inexorable logic leans towards an objective test. The only way of ensuring that there is no doubt is to ask for such a scheme, but I would be grateful if the Minister would consider an alternative wording of ``no reasonable person''. On those grounds, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 ordered to stand part of the Bill.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

On a point of order, Mr. Hood. In preparing for the debate this morning, I realised that I needed to refer to the Licensing Act 1964. I was surprised to find that the Act as amended is not available in the Committee. The Library staff told me that, as far as they understand from volume 24 of the fourth edition of ``Halsburys Statutes'', no alteration is shown in the supplement, but it is plain from the references in the Bill that the Act has been amended since it was passed in 1964. I am at a disadvantage because I have to ask the Minister about references to the Act that I want to make in my remarks. Surely every Act to which a Bill refers ought to be available in the Committee Room, and not only those that the Clerks may deem important, especially given the wretchedly little time that we have and the speed with which we must consider the Bill in detail.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Although I understand the hon. Gentleman's point, I am advised that availability of information to the Committee is a matter for the Chair, and it is my view that the information, if not exactly to the hon. Gentleman's satisfaction, is in order for the Committee.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

Further to that point of order, Mr. Hood. If the Government can help with any of the material that the Committee and, in particular, the hon. Member for Reigate are looking for, I am happy to make a commitment that we will try to do that. The hon. Gentleman is right—the Committee needs to have all the material available. We will look at the matter and see what can be done to help the Committee and the hon. Gentleman. Clause 33 Enforcement of certain offences relating to under-age drinking