Schedule 4

Part of Policing and Crime Bill – in a Public Bill Committee at 2:15 pm on 12 February 2009.

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Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 2:15, 12 February 2009

Looking at the schedule in the round—the desire to move to a mandatory condition requirement, and the more localised conditions—the main issue that it seeks to address is irresponsible drinking linked to irresponsible promotions and certain other activities. I sympathise with the Government on the need to address that issue, but the question is whether these provisions are the most appropriate way to do that, and what alternatives the Government explored before deciding on this route. Before I get into that, I am interested to know how the proposals will interlink and interrelate with the interesting partnership-based approaches taking place around the country.

I will draw on two models that are being developed, which seem to be making some ground and are being effective in the communities where they are operating. They are dealing with irresponsible drinking and cutting sales to those under age, and certainly one of them is addressing the longer-term social and educational issues. The first is the community alcohol project, which I am  sure the Minister knows. It was first piloted in St. Neots and is now being piloted in other parts of the country, around Cambridgeshire and elsewhere. It draws together trading standards, the police, the education sector, and the on and off-trade to ensure consistent messages for young people, and consistent enforcement and a greater understanding of how the law should operate.

The second model being put forward on a partnership or voluntary basis is the use of business improvement districts in areas with many pubs, clubs and off-licences—night-time economy—Broad street in Birmingham, for example. I went to Kingston the other day to see the BID in operation there. That model is very much part of trying to draw together the responsible retailers—if I can put it like that—and using them to put greater pressure on those that do not act responsibly. It is not being developed in a rigid, regulatory framework, but it is being used constructively. Some of the funding that is being raised through the BID structure is being invested in safety and the night-time economy—wardens, for example.

I am interested to hear what the Minister thinks about his proposed provisions, in the context of that very good work and those very good ideas that are being developed around the country. I am concerned that a rigid approach to licensing conditions could upset or undo some of the good practice in certain parts of the country—I accept that some of my examples are localised. I am concerned that such an approach could undermine some of the good partnership working that has been established and which certainly appears from initial evidence to be making a difference by making some of those communities safer. It is also addressing responsibility among retailers and getting to young people and making them appreciate the volume of alcohol that they are consuming and starting to deal with some of the other issues that we touched on in previous debates. It would certainly be a retrograde step if those initiatives and approaches were dissipated as a result of the proposed change.

But why have a mandatory code? The Minister will be aware that an alternative proposal was set out which was the concept of co-regulation. In other words, there would be a code of practice which off-licences and on-licence holders would abide by and which would effectively become part of the licence conditions. The licence conditions would state that a licensee would undertake to abide by the terms of that code drawn up between the industry and Government. It is a variant of what is proposed here, but it certainly appears to give greater flexibility and that stronger partnership working between business, Government and local authorities by an alternative means.

Because it is not statutory, such a code has certain flexibilities of modification and involvement. Once we have certain statutory requirements in place they are set in stone: we have to come back with statutory instruments and changing it becomes quite formalistic. There are arguments about whether that is appropriate, but it is an alternative model that has been suggested as a means of setting the bar and the standards. Equally it would ensure that compliance is operated and maintained by local authorities, for example by way of licence review if the conditions or the relevant code of practice or code of conduct are not complied with.

That sense of flexibility is what one gets as a driving force behind the proposals before us today. The regulatory impact assessment states on page 10:

“The advantage of introducing a code of practice through this mechanism rather than as a standalone Act of Parliament is flexibility.”

Well, if flexibility is one of the driving forces behind one of the proposals in the schedule, it would be interesting to hear why the Government decided to reject the concept of co-regulation. It could be structured in a way to provide flexibility, while setting appropriate standards for the way that alcohol is marketed and promoted and the approach taken by licensees.

The other issue that I am still not certain about is why the conditions the Government are suggesting, and the conditions that the regulatory impact assessment seems to suggest may be introduced, are so focused on the on-trade. It is all about the size of glasses that may be used in a pub or a club. The provisions seem to be about the control of an on-licence, but as we recognised, many of the problems also come from the off-trade and the volume of alcohol that may be sold at one particular time or how it is marketed. When we say that licensees will comply with the terms of these conditions, is a balance being thought through about the conditions that should apply to off-licences as well as to on-licences?

We need to recognise that the problems of alcohol-related disorder and alcohol consumption are part of a more complex picture. We have this increasing mix of alcohol consumed at home and alcohol consumed on licensed premises such as a pub or a club. A lot of alcohol may be consumed even before people reach the pub—the concept of pre-loading, and increasingly post-loading when they get home. The Minister needs to be cognisant of the fact that this is not simply about licensed premises such as pubs and clubs. That may be where some of the problems exhibit themselves, but the problems may be a consequence of indirect activities linked to the off-trade rather than specifically the on-trade. How does he envisage that this code of practice will operate to ensure that an appropriate balance is struck?

Similarly, there has been some suggestion—I hinted at this during the evidence session when I put a question to the Minister—regarding what I think are good schemes: the Think 21 and, increasingly, the Think 25 that the industry are now adopting. To ensure compliance on under-age sales, businesses are saying that if someone looked younger than a certain age, that person would need to provide some sort of identification to assure that he or she was indeed over 18. That has been developed by the industry, and is being rolled out more widely. I support its adoption because it provides certain means, a safety net, of ensuring that the 18 age requirement is met.

If the Minister was tempted to mandate a condition on the industry to adopt a Think 25 or Think 21 strategy, it would probably be incumbent on trading standards departments to send people around who are 21 or 20—or look 20—to test that that approach is being taken. If he did that, he would almost be indirectly setting a further age verification requirement by the back door, so that if a business sold alcohol to somebody who was over the statutory age of 18, but looked under 21 or 25, it would be effectively breaking the law, the licensing conditions and everything that go with it.

That approach had been developed as a way of ensuring compliance with the 18 age requirement. By seeking to set the approach as a condition, there is more to it than appears at face value: whether mandating that age is setting a further regulatory hurdle that will have to be tested and complied with, and whether that is intended by virtue of putting good practice as best practice. Mandating the approach as a condition would bring some potential issues and problems.

Are we thinking of just micro-managing the size of glasses? Is that what it is all about? One gets a sense that that is the case when looking at the regulatory impact assessment. I am not sure about the extent to which a mandatory code would represent an intention to try to micro-manage operations in that way, and I am interested to hear the Minister’s view on that issue.

Equally, there is the issue of the application to licensees more generally. One concern that the Mayor of London has put forward in his briefing note for the clause is that

“the mandatory conditions will impose blanket regulations across the board, which will not take account of local conditions. Mandatory conditions (without exemption) that apply to village halls, or sports and members clubs could impose a significant burden on them.”

The Minister has introduced certain changes in other parts of the Bill to deal with private premises, as they may be described, but the possible unintended consequence of that is that he might set additional high hurdles or restrictions on those sorts of outlets that may not be appropriate. While I note that he is trying to reserve the approach of saying that the conditions may apply to a specific class of licensees, is that what he intends by that language, that certain places, such as community halls, might fall outside the mandatory conditions in certain circumstances? I do not know, and it will be interesting to hear from him whether the language that has been adopted addresses that.

Clearly, we have the potential regulatory burden, and one issue that was clearly highlighted in the regulatory impact assessment is the potential costs on businesses. I return to the statement in paragraph 19 of the assessment:

“However, we recognise that in the short run, there is the potential for significant transitional costs including job losses and the closure of small businesses.”

The Minister is absolutely right that the statement that we had from the British Beer and Pub Association during our evidence session was that they could not say that the regulatory impact would close down all the pubs, and that it was a more complex situation, but it is relevant that even the regulatory impact assessment contemplates that businesses will shut as a consequence of the legislation. That may not be about driving out bad businesses, but about the regulatory position that has been put in there. Good businesses that are complying with the law, being responsible, and trying to adhere to what might be regarded as good social responsibility practice, may be forced out because of the costs and burdens being applied.

What discussions has the Minister had with the Department for Business, Enterprise and Regulatory Reform on the proposals? Has it expressed any concerns about the application of the provisions? Equally, what discussions has he had on licensing more generally with the Department for—what is it called?—Communities and—[Hon. Members: “DCLG.”] Yes, DCLG—but in fact the Department for Culture, Media and Sport is  the Department I was looking for; there are so many different acronyms for Departments now. DCMS’s review of the Licensing Act noted concerns about the regulatory burdens and the flexibility within the licensing arrangements, and said that more flexibility within the existing licensing regime may be more appropriate. How is this consistent with that and how does it fit in?

We have touched in detail on the fettered discretion of local authorities regarding the nature of the conditions and how the licensing review fits into that. It is difficult to understand properly how it fits together until the code is published, so our comments have to be reserved until the final code is revealed and the consultation has been completed. I still feel that we are debating in a vacuum, notwithstanding the Minister’s assurance on the consultation, because we do not know the end result—so we can debate some of the principles, but as always the devil is in the detail.

I am genuinely sorry that the hon. Member for Stourbridge cannot be here this afternoon, and I understand why. Her proposal, new clause 6, has merit and I am happy to speak in support of it. My understanding of the new clause is that it would add councillors in local authorities to the list of interested parties pursuant to the licensing regime. One real frustration over the Licensing Act has been that local councillors have not been able to object or make representations directly, because they lived more than 100 m away from the relevant premises. The approach to who can make representations in relation to a licence is restrictive, which has been a problem.