Enforcement of certain offences relating to under-age drinking

Criminal Justice and Police Bill – in a Public Bill Committee at 2:30 pm on 1st March 2001.

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Amendment moved [this day]: No. 135, in 33, page 25, leave out lines 5 to 8.--[Mr. Blunt.]

Photo of Roger Gale Roger Gale Conservative, North Thanet

I remind the Committee that with this we are taking the following amendments: No. 47, in page 25, line 17, at end add—

`(4) A constable or an inspector of weights and measures may only request that a person under eighteen buy or attempt to buy intoxicating liquor, or send such a person to buy such liquor, where that constable or inspector has reasonable grounds to believe that an offence under section 169A or 169B of the Licensing Act 1964 has been committed on the premises in question within the preceding six months.'.

No. 108, in page 25, line 17, at end insert—

`( ) The Secretary of State shall issue guidance—

(a) about requests made by constables and inspectors to persons under 18 in accordance with this section;

(b) about the manner in which purchases and attempted purchases are to be made under this section;

(c) with a view to encouraging good practice in connection with the operation of this section.'.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I have made the point of principle about duty which concerns me. Amendment No. 135 is a probing amendment to ask the Minister whether omitting new section 169I from the Weights and Measures Act 1985 would affect the wider details and whether it would have to be replaced with another form of words.

I am also concerned about the balance between what the police should be doing and what weights and measures authorities should be doing. The weights and measures authorities already check whether people are being swindled by being sold less than is stated, and cover a range of other issues, but the sale of alcohol to under 18-year-olds is a criminal offence and I wonder whether it is appropriate for local authorities to have a duty to enforce the law on that. Should not that duty be exclusively for the police?

I support amendments Nos. 47 and 108, particularly amendment No. 47, which deals with the concern addressed in my amendment that there should be evidence of the activity before children under the age of 18 are sent into pubs or off licences as agents provocateurs to try to trap people into selling them alcohol to enable a prosecution to be sustained. We do not want the provision to be officiously and zealously enforced so that law-abiding licensees are trapped by the authorities, whether the police or local authorities.

I support amendment No. 108, because it is important to have clear guidance on how the process will work, and I hope that the Minister will respond to the points that I have raised.

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

My hon. Friend has set the scene, and I shall be interested to hear how the Minister responds to amendment No. 135.

The purpose of amendment No. 47 is to target the power to allow more test purchasing than at present. If it is thought that young people are buying alcohol under age and the pub or off licence is not asking for proof of age or attempting to verify the age, test purchasing should be possible to ensure that those licensees are dealt with firmly. There is no dispute about that, and amendment No. 47 would require that there had been at least reasonable grounds to believe that the offence of selling to someone under age or permitting that to happen had occurred before the test purchasers were sent in to do their work. I would be grateful if the Minister considered targeting and answered that point.

Amendment No. 108 deals with the Government setting out guidance on the use of underage people as test purchasers. Although we would all accept that the possibility of test purchasing should exist where there is a targeted reason for it, no one would be happy if it reached the point to which my hon. Friend referred, which was close to that of an agent provocateur. I should be grateful if the Minister could reassure us that this provision will not be a licence to dress youngsters to look much older than they are, to allow them to use forged identity documents and to show cards similar to proof of age cards. Such an approach would be worrying, particularly as some of the premises where underage purchasing is allowed are not very desirable. Do we want to send young people into undesirable premises dressed to look much older than they really are, perhaps supplied with forgeries or documents which resemble proof of age cards? Those concerns were expressed when the Licensing (Young Persons) Bill was going through the House. At that stage some assurance was given. Although test purchasing was not included in the Bill which was passed, it was included in the earlier Bill, which was not. Could the Minister flesh out exactly what he has in mind?

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

I did not have the opportunity to make my first point, which concerns making legislation easier to manage, when we were debating clause 19. We are adding subsections, in this case subsection 169I, to a Bill which is already the Licensing Act 1964. In clause 19 there were many pages of subsections. I ask that we try to avoid having seven pages of the same clause all subdivided, having been added to and subtracted from. That is not manageable.

I share the view of the hon. Member for Reigate (Mr. Blunt) about duties. I have made this point throughout the all-too-many years since I first came here. When we impose duties we should ensure the capacity of the person on whom the duty is imposed to carry it out. There should be a mechanism to send a little electric shock through Members of Parliament every time they are about to pass legislation imposing a duty on someone without ensuring that the resources—

The Minister of State, Home Office (Mr. Charles Clarke) rose—

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

I shall give way in a second. We impose duties on local authorities almost every month of the year without asking whether they have the necessary resources, personnel or ability. The poor people on the receiving end say, ``For heaven's sake, spare us.'' The education service is the most obvious example. The head teacher of the school where I am the chair of governors keeps saying, ``Spare us from yet another obligation for which we may not have the resources.'' I would be grateful if the Minister could guarantee that all the so-called local weights and measures authorities will have the capacity to comply with the duty. Does he want to intervene to tell me that that is absolutely the case?

Mr. Clarke indicated dissent.

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

As so often in life, the moment has clearly passed.

It is rather 19th century—or certainly 20th rather than 21st century—for there to be a local weights and measures authority. I realise that we are amending earlier legislation, but we are in danger of having a local authority, a local education authority and a local weights and measures authority, which actually describe functions of the same body; they are the same people. I am keen to try to clarify their functions. My understanding is that they are trading standards officers. I sense the magnitude of professional support for that view. If that is the case, we should probably call those people trading standards officers. I understand that we may be under an obligation, because that is what we have always called them.

I want to pick up the other two points made by the hon. Member for North-East Hertfordshire (Mr. Heald). When I was a health spokesman for my party, I supported a proposal to extend the law so that test purchases, which have been possible for a long time for cigarettes, could be carried out properly in association with the police or trading standards officers, allowing an underage youngster to go into a newsagent to discover whether the owner is flogging cigarettes to kids, thus enabling a prosecution to be brought against him. There must be a mechanism by which one can collect the evidence from somebody who will be willing to stand by it. The danger of relying on illegal drinkers is that they may be embarrassed and not go through with it.

I support the proposal that it should be possible to carry out test purchasing. Although I understand the concern that prompted the hon. Gentleman to table amendment No. 47, I do not entirely agree with him. If one only ever acted on the basis of a suspicion, one could never undertake general testing across a local authority area. It is sometimes necessary to have the power to do a sample test—using, say, 10 different kinds of pubs at different times of day in different areas of Southwark—to provide a random sample of how commonly offences take place. On balance, I support the power unamended owing to the need to be able to do that. The merit of amendment No. 108 is that it would provide the scope for guidance or back-up direction to ensure that the power is not abused. In my experience, such powers have not been abused and have been used infrequently. They are normally used where there has been a complaint or a series of complaints that kids have been buying cigarettes from a newsagent. It is even more important to be able to deal with that in respect of alcohol.

Probably every single person in the Room—including members of the Committee, Officers of the House, civil servants and visitors—has played the game of trying to get an illegal drink or two before reaching the age of 18. [HON. MEMBERS: ``Oh.''] Methinks my colleagues protest too much. I was not even referring to the leader of the Conservative party—who did it all the time according to his own reminiscences—but speaking for myself.

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

Indeed.

It was part of school life to go to places that were out of bounds and where one could buy cigarettes and drink. I shall not mention the third thing, but that was available too, if one looked in the right place. It probably had more attraction than the other two for some people.

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

My hon. Friend is helpful to the Minister, who is clearly innocent of such matters and must have had a delayed upbringing. In the days when the Minister was president of Cambridge students union and I was a mere college union president, sex was very much on the agenda of our student campaigning in terms of liberation and equality.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. I hope that the hon. Gentleman is not seriously suggesting that we should send agents provocateurs into the establishments to which he appears to be referring.

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

I am aware that I must resist getting carried away.

This is a perfectly proper power that needs to be used. It has been beneficially applied in relation to underage tobacco sales, and I believe that it also applies to solvents, which can be highly dangerous and, indeed, fatal. I have had constituency experience of that.

To end on a serious note, the Minister and I, together with the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), have been recording a programme about crime, particularly in Kent. If we are to reduce the amount of addiction to and abuse of alcohol by people who are the under the lawful age for purchasing it, it is important that pubs, supermarkets, shops and off licences do not get away with regularly selling alcohol to those people.

There must be a draconian regime or groups of youngsters will easily be able to intimidate the owners of isolated off licences or newsagents. The life of a shopkeeper often consists of doing valuable community service, but getting a tremendous amount of grief from people who are trying to get him or her to act illegally in relation to tobacco, alcohol, fireworks or solvents. The law must be tough and clear, so I am happy that there should be a mechanism for testing it and dealing severely with lawbreakers. We shall quickly eliminate most abuse if shopkeepers know that that is the regime. They break the law for personal profit, but that causes considerable harm and loss to young people who purchase their goods.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office 2:45 pm, 1st March 2001

I understand the general points made by the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) in relation to the consolidation and codification of legislation. As I said, my right hon. Friend the Home Secretary and I are sympathetic, but we must create a suitable process. Forthcoming licensing reform, which will overhaul the Licensing Act 1964, will complement the Bill. Licensing law will be recast in response to the approach that we set out in the White Paper. We shall have an opportunity to address his concerns when those proposals are placed before the House. However, I also appreciate his general points about the way in which the law is made.

Amendment No. 108 would require the Secretary of State to issue guidance to the police and trading standards officers concerning the use of children to make test purchases, the conduct of test-purchase operations and best practice. I assure both the hon. Member for North-East Hertfordshire and the Committee that we consider appropriate central guidance of the type that he envisages to be both necessary and worth while, but the participation of organisations directly involved in the area is also important.

The hon. Member for Southwark, North and Bermondsey remarked that test-purchasing operations are mounted in relation not only to alcohol but to cigarettes, videos, solvents and fireworks. That technique is appropriate, but guidance should come not only from the Secretary of State but from organisations that are experienced in such operations. The Local Authorities Co-ordinating Body on Trading Standards—LACOTS—currently issues such guidance, and the Department of the Environment, Transport and the Regions and the Association of Chief Police Officers are involved in its preparation.

The best practice guide on test purchasing, which is currently being revised, was issued in November 1995. It will be further revised when the Bill becomes law. We accept the need for central guidance, but we do not accept either that the Secretary of State should issue it or that it should be set in statute. It is important that local authority bodies, the DETR and the police are directly involved in the process. Given that assurance, I hope that the hon. Member for North-East Hertfordshire will be prepared to reconsider amendment No. 108.

Amendment No. 135 concerns the important issue of duty. Test purchasing is necessarily part of the duty of trading standards officers because the defences that clause 33 provides will be available only when they are acting in the course of their duty. If they are not acting in the course of their duty, the various defences set out in clause 33 will not apply, which is why we have the closing words of subsections (1A) and (2) of new section 169A. Of course, we do not want police and trading standards officers to send young people to buy alcohol at all times, but only when they are performing their duty. I must emphasise that there is no intention to entrap people selling alcohol. Current practice involves young people who are under 18 with genuine identification that they reveal on demand.

It is also worth having on the agenda the provisions of the current Act. Section 169A is a reformulation of an existing offence under the Licensing (Young Persons) Act 2000, which came into force on 23 January this year. The Act was the product of a private Member's Bill introduced by my hon. Friend the Member for Pudsey (Mr. Truswell), and his reformulation was warmly welcomed by both Houses. The Act had wholehearted cross-party support and made it an offence for any person to sell alcohol to a minor on licensed premises.

Before the reformulation, a loophole in the 1964 Act allowed some workers on licensed premises to evade prosecution when they sold alcohol to children. Section 169B makes it an offence for any person with the authority to prevent the sale of alcohol to a minor to permit such a sale on licensed premises. That is why new section 169I(1) states that it is the duty of every trading standards officer to enforce the provisions.

I shall come in a second to test purchasing. I have tried to explain why the word ``duty'' is in the Bill. When I almost intervened earlier, but then declined to do so, I was wondering whether the hon. Member for Southwark, North and Bermondsey was in favour of various forms of cruel and unusual punishment for Members of Parliament who do silly things. I understand the point about not referring to a duty without having the capacity to deal with the implications of the duty, and we have tried to take that into account after consultation with various organisations. Does the hon. Member for Reigate wish to raise any matters before I go on to amendment No. 47?

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

No. I understand the Minister's explanation of why the word ``duty'' is in the clause. He invited my hon. Friend the Member for North-East Hertfordshire not to press amendment No. 108 about guidelines. I shall listen carefully to what he has to say about amendment No. 47, because it concerns whether the power will be used officiously. However, if ``duty'' is used in the traditional sense, that should not happen. If we are not to have guidelines, there needs to be some limitation, which amendment No. 47 would provide.

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

I understand the point about officious use. I reassure the hon. Gentleman about that. We have experience in test purchasing in relation to other products and the reason to involve the local authority, a professional body, is to ensure that such a power will not be used officiously.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

That the local authority will be involved does not particularly reassure me. Let us consider, for example, the recent prosecution of the greengrocer in the north-east. Numerous other cases have been outlined in the press of trading standards officers who have been excessive in the use of their powers, especially in areas that overlap with the criminal law. Will the Minister consider criminal versus civil law?

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

Perhaps I was not clear. The hon. Gentleman's worry is that, by their nature, local authorities want to accrete power, and sometimes use it officiously, so they might not be the best bodies to have the responsibility. I explained earlier that the police and the Government were involved in the process. When dealing with such matters with local government, the Home Secretary will not want the power to be used officiously, so there will be a countervailing power.

Trading standards officers have a responsibility to enforce the law. It is a matter of judgment as to which side of the line a particular activity goes. It can be argued that the line is the criminal/civil division. I shall find some specific examples to illustrate the point. In the sale of alcohol, it is reasonable to add the power to those of trading standards officers, rather than to require the police to establish a separate, wholly parallel process. That returns us to our discussion about the benefits of building partnerships between different agencies—I know that the hon. Gentleman and I have similar views on this—and the partnership between the police and trading standards is an important part of our approach.

Amendment No. 47 concerns test purchasing, which is not a new concept in liquor licensing, as test purchases have been carried out for some time in some areas, but prosecutions have not resulted because of uncertainty about the legality of the operations. However, it has led to the revocation of some liquor licences. Doubts exist because the Licensing Act 1964 makes it an offence for an adult to send a minor into licensed premises for the purpose of obtaining alcohol for consumption off the premises. In addition, it is an offence under section 169C of the Licensing Act 1964 for a minor to buy or attempt to buy alcohol on licensed premises. No exceptions to those offences exist for test purchasing operations, so there is confusion about the legal power.

For that reason, the Bill will place test purchasing on a statutory footing in two ways. First, it will provide exemptions to the offences that I have mentioned for the police, trading standards officers and the children involved. However, police and trading standards officers will have that protection only when they are acting in the course of their duty—which returns us to our earlier debate. Secondly, new section 169I(1) confirms that it is among the duties of trading standards officers to act to enforce the provisions relating to the underage provision of alcohol. That is the normal legislative style to bring clarity to the issue. It is not the purpose of that section to place a burden on every trading standards authority to conduct wave after wave of test purchases, although I certainly hope that the protection of children will continue to be a high priority.

That is why the provision is important. For the test purchase power to be effective, it is imperative that the enforcement authorities have operational freedom to decide where and when such operations should take place—for the reasons set out by the hon. Member for Southwark, North and Bermondsey. In practice, enforcement authorities will not attempt to trick the retailer but will deal with genuine identification, as I said earlier. Amendment No. 47 would place an unjustified restriction on the powers needed, because the authorities, before embarking on a test purchase operation, would be obliged to obtain evidence of possible previous offences committed in the target premises, so that they could justify their action in court if any prosecutions were brought following their action. That would create an additional burden that would undermine the purpose of having an effective enforcement measure.

I acknowledge that the amendment was tabled to probe the issue. I hope that on the basis of what I have said, the hon. Member for Reigate will withdraw it.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

The Minister is misinterpreting the amendment. He said that it would mean that offences or convictions for such behaviour must have occurred. All that it says is:

``where that constable or inspector has reasonable grounds to believe''.

That is not a huge test. The Minister may have misdirected himself.

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

I did not mean to do that, and I am sorry if I have. Officers would need to demonstrate in court, by hypothesis, that they had reasonable grounds to conduct a test purchasing operation in a particular shop. To show those reasonable grounds, they would have to produce evidence. Reasonable grounds cannot simply be that an off licence was in a particular area or ward, for the sake of argument. Unless I have misunderstood the amendment, it would not constitute reasonable grounds simply to say that a shop was in X ward in Reigate. There would have to be specific reasonable grounds for each retailer subject to a test purchasing operation. That would lead to a separate burden on the trading standards authorities that would undermine the purpose of having an effective enforcement operation.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs) 3:00 pm, 1st March 2001

I have a question prompted by that exchange. Is it being considered—it has always struck me as a sensible thing to consider—whether those who run off licences, places where drink and tobacco are sold and where age limits relate to their premises, should be required to have closed circuit television or the like on their premises? From experience, it could work well if those in such shops know that a perpetual record is kept of who has been in and out. It strikes me that, although we would not want to impose that on the retail trade in general, it might be appropriate for those who retail items that involve an age limit, safety or other crime-related issues.

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

We are approaching the matter in two ways. First, the new guidance on CCTV, which we published in February, specifically highlights as one of the three new priorities out-of-town parades that typically include an off licence or betting shop, for example, where there is often a lot of low-level crime of the type that we are discussing, and where people congregate, but which do not have enough money to invest seriously in CCTV as many retail centres involving major chains do. We said in the bidding round that we would give priority to such schemes for exactly that reason.

Secondly, through our retail crime action team, we are discussing with the industry, including post office sub-postmasters, the range of security devices that we as a Government can encourage in such shops, and what support we can provide. We are developing, although we have not yet brought into the public domain, because the conversations on them have not yet finished, a range of proposals that we hope will help security across the range, and they include CCTV.

CCTV could be a matter for licensing justices, who could require an undertaking that it will be used in an off licence in particular circumstances. Many small CCTV systems now available are relatively cheap. That is an interesting approach.

I hope that hon. Members will not press the amendment to a vote.

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

The Government should think a little more about the matter. We do not want test purchasing to become a widely used method of dealing with the problem. It should be used sparingly, and it should be targeted. The idea that we should have random testing across large areas is misconceived. At this stage, however, I do not intend to press the point, although we may return to the matter on Report, because we believe that the proposal should be targeted.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I listened to the Minister, and it would be useful if he could give the assurance for which my hon. Friend asks so that it is on the record of our discussion that the power is not intended to be used—

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

I am happy to give that assurance. We do not intend as a matter of course to assume that blanket sweeps are the right way to proceed. We believe that the operational decision on how to approach the matter should be taken on operational grounds. I can confirm that it is not part of our game plan to have blanket sweeps for particular circumstances.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

That is helpful. I hope that those words will be of guidance to the police and local authorities when they use the powers, if the Bill ever reaches the statute book. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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

I realise that planning permission may not be granted in every case. However, when planning permission for off licences has been applied for and granted, might conditions be attached with the same sort of jurisdiction as applies to pubs, for example? That would make the permission conditional in time and would involve a reporting back mechanism to determine whether it should continue, and if offences have been committed, the business involved would not be allowed to continue to operate. That applies to pubs. It is a way of keeping in touch with and in control of the licensee. I wonder whether we might do the same for outlets that cause a lot of low-level crime through selling drink.

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

It may interest the Committee to hear that the comprehensive spending review published in July included a cross-cutting review on crime reduction, which I chaired. The report on that, which forms part of the CSR, sets targets for several other Departments for contributing to crime reduction. Our theme is that the problem runs through all parts of society and life and is not the responsibility only of the police. The DETR accepted an obligation to revise its planning guidance to ensure that secure by design was included as an element in planning. We are funding the development of secure by design. A lot of research is being done in that area, and there is a good Association of Chief Police Officers scheme on it.

We are working further on what secure by design means, and I am discussing with my counterparts in the DETR exactly how we can put the requirement into effect, because there are serious issues involved. We are actively pursuing the possibilities.

Question put and agreed to.

Clause 33 ordered to stand part of the Bill.