Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010

My Lords, if the whole country did not know that there was an election coming, it would on reading this order. As the Government have been spectacularly unsuccessful in reducing the amount of alcohol-related crime over the period of this Parliament, they have now decided that this is the moment to introduce five of the nine mandatory conditions we were promised during the passage of last year’s Policing and Crime Act. Why so few? Why were the Government so adamant last year that nine were necessary, but now we see only just over half that number? Could the Minister’s colleagues not come up with any more abhorrent practices in pubs, or is it a case of legislate in haste and repent at leisure? Not all practices in pubs and clubs are abhorrent, of course. There is no doubt—and as the Explanatory Memorandum shows, the Government agree—that, when used responsibly, alcohol can enhance social occasions and can have an important and positive role to play in society. In this connection, I congratulate on-trade and off-trade alcohol producers and Drinkaware on their smarter drinking campaign of the past couple of years. However, it is when alcohol is taken to excess that serious problems occur. Not only were there almost 1 million victims of alcohol-related violence last year—astonishingly, almost half of all violent crime is alcohol-related—but also, as the Minister told us, the cost to the taxpayer can be as much as £13 billion each year. The Government are not alone in wanting to reduce these costs and the social implications of alcohol abuse, which is why I feel so strongly about clearing up some of the issues in the order. Once and for all, real action could be taken and real improvements seen. I am content with two of the five mandatory conditions. For instance, the mouth-to-mouth transference of alcohol is positively revolting and, I suspect, carried out only when the donor is drunk—I might be wrong on that and the Minister may be able to correct me. The provision of free tap water is also sensible. However, I note that the order does not state that it has to be potable. There are many taps in your Lordships' House, but only a few of them are described as suitable for drinking. I am surprised that it is necessary to legislate for the latter in such a heavy-handed way. Like my honourable friend in another place, I have a problem with paragraph 4, on age verification. This section states: ""The policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) to produce on request, before being served alcohol, identification bearing their photograph, date of birth and a holographic mark"." This is a very obtuse policy. We on these Benches are aware of the continuing, significant problem of under-age drinking and want to support any sensible measure to stamp out the problem. However, this section does little more than provide premises with more confusion and bureaucracy, which this struggling industry certainly does not need. Is the Minister aware that this section may result in the wide-scale removal of operators of Challenge 21 or Challenge 25 policies? The order requires premises to have in place an age verification policy. That is fair enough—I read that as a single-age policy. Should a pub choose to apply a policy that requires its staff to request age verification from, let us say, every customer who appears to be under 30, an offence would be committed if the policy were not fully applied. In that instance, if a member of staff inadvertently failed to challenge someone who appeared to be under 30, an offence would be committed carrying a fine of up to £20,000. The rational choice for the pub would therefore be to operate a policy that required challenge only to individuals who appeared to be under 18, to avoid the risk of inadvertently breaching a policy that challenges customers who appear to be between the ages of 18 and 21 or 18 and 25. We suggest taking out the phrase, ""or such older age as may be specified in the policy"." I am also slightly perplexed by paragraph 7.7(ii) of the Explanatory Memorandum, which states that, ""the Government has decided to include a mandatory licensing condition to ensure that all those selling or supplying alcohol have an age verification policy in operation that requires them to check the identification of anyone who appears to be under the age of 18"—" not any age, but 18— ""attempting to buy alcohol. The draft Order delays this condition coming into force until October 2010 to allow businesses"—" as the Minister said— ""time to prepare"." Is this not already a mandatory condition? I thought that it was already a legal requirement to check everyone who appears, at the very least, to be under 18; namely, the legal age for buying alcohol in pubs, clubs, shops and so on. Furthermore, the Explanatory Memorandum states: ""Where the young person had attempted to buy alcohol from a pub or club in the last month, 82% had been successful"." A 2009 survey found that young people are now drinking twice as much as they did in 1990. Considering these statistics and other frightfully high, and ever rising, under-age alcohol abuse figures, is the Minister happy that this policy is effective? This section also requires people to provide an ID with a holograph. Is the Minister satisfied that all forms of ID which are currently used and accepted in the UK carry a holograph? I am thinking, for example, of National Union of Students cards and cards specific to educational establishments. I move to the provisions stopping irresponsible promotions. Paragraph 1(2) of the schedule states that, ""an irresponsible promotion means any one or more of the following activities, or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises in a manner which carries a significant risk of lead." It is followed by five examples. Can the Minister clarify whether the five actions are banned altogether, or are banned only if they are done in a manner, ""which carries a significant risk of leading or contributing to crime and disorder, prejudice to public safety, public nuisance, or harm to children"?" Paragraph 1(2)(a) covers, ""games or other activities which require or encourage, or are designed to require or encourage, individuals to … (i) drink a quantity of alcohol within a time limit (other than to drink alcohol sold or supplied on the premises before the cessation of the period in which the responsible person is authorised to sell or supply alcohol), or … (ii) drink as much alcohol as possible (whether within a time limit or otherwise)"." I presume that these "games" include a pub quiz or darts, where the prize for the winner is a certain amount of alcohol. Is that permitted if it is not done irresponsibly or does not carry a significant risk of leading or contributing to crime, disorder and so on? The same goes for the other headings in the schedule, or are these situations banned altogether regardless? Can I see publicans buying chutney, for example, to give as prizes? We agree that drinking alcohol plays a traditional role in British culture and generally it is a positive one. The Government are right to note that, ultimately, whether people drink and how much is up to the individual and that it is their role to make sure that individuals are able to make informed choices and to encourage the public and businesses to act responsibly. However, the Government state in the Explanatory Memorandum that imposing a large number of blanket conditions would not be appropriate. What then do the Government consider the order to be—a small number of blanket conditions? The order is riddled with poor drafting and ambiguity. For the Government to prescribe what may or may not take place within licensed premises across the UK under one order is in complete violation of any principle of delegating power and authority to an appropriate level and fails to explore the use of powers already available to address the problem. We can’t go on like this. Labour has announced countless initiatives to tackle binge drinking, despite poor enforcement of existing laws; for example, fines for drinking in public. Maximum fines for offences are not being used. Between 2003 and 2007, the last year for which figures are available, only two people were fined more than £250 for refusing to stop drinking alcohol in a designated public place. We need a tougher licensing regime, but the Government need to realise that top-down solutions are not the only answers. We need to give more power back to local communities to control the number of licensed premises in their area. Councils and the police desperately need more powers to crack down on under-age and irresponsible drinking. For example, under the Licensing Act 2003, there is a general presumption in favour of granting an application to sell alcohol. It needs to go. The police need powers to object to a licence, which should be applied for regularly. The licensee, whether current or potential, needs to prove that the police are wrong in any assessment that the police have made against them. The guidance to the magistrates’ courts also needs tightening regarding when a council licensing condition can be allowed and when it should not be. It should be extremely rare to overturn a council’s decision. I also believe that if publicans break the law it should be axiomatic that not only the landlord but the premises itself should be sanctioned. I can think of other things to curb irresponsible drinking, but this strange order is like the curate’s egg—only good in parts and likely to give licensees a stomach-ache, if only because of the drafting. Was it ever looked at by a lawyer outside the Home Office? I doubt it; it shows.