Police Reform and Social Responsibility Bill
(12 years, 11 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Blencathra
“Application of health and safety enactments to police
(1) No police and crime commissioner nor chief officer of police shall be liable for prosecution under any health and safety enactment in the performance of their duties.
(2) No police and crime commissioner nor chief officer of police shall be liable for damages or compensation for any injuries caused as a result of a breach of health and safety law in the performance of their duties, save where it is proved that the individual acted maliciously or with reckless disregard for the safety of others.
(3) A police officer in the execution of the officer’s duty who believes that an action or actions are necessary—
(a) to prevent crime,(b) to prevent risk to the health and welfare of others, or(c) to save the lives of others,shall not be prevented from taking that action or actions by the intervention of any other public official, of whatever rank, who alleges that there is a health and safety risk to the officer.(4) It shall be an offence for any public official to obstruct a police officer in the execution of the officer’s duty when the officer has decided under subsection (3) that an action or actions are necessary.
(5) A police officer who has come to a decision under subsection (3) shall have no authority to compel others to join with the officer in the action or actions.
(6) Sections 1, 2 and 5 of the Police (Health and Safety) Act 1997 are repealed.
(7) Her Majesty’s Inspectorate of Constabulary shall issue general guidance on health and safety matters to all police forces for every police area listed in Schedule 1 to the Police Act 1996 (police areas).
(8) A breach of the guidance issued under subsection (7) by any officer of the rank of constable may result in disciplinary action but shall not result in any prosecution or civil action.
(9) A police and crime commissioner shall not be liable for prosecution nor civil action because of any breach of the guidance issued under subsection (7).”
Lord Blencathra
I need to correct a mistake I made in 1996-97. It was not the only one I made then, but it is the only one I may have a chance to rectify at the present moment. Putting the police under the statutory provisions of the Health and Safety at Work etc. Act was my policy and my responsibility. I was the Police Minister at the time; I was the guilty man. Admittedly, I was aided and abetted by the whole of ACPO, the Police Federation, the Police Superintendents’ Association, the whole police department of the Home Office and all the police authorities. In this House, the late Lord McIntosh of Haringey said that it was his duty to oppose things but that there was nothing in the Bill that he could find to oppose.
All the great and the good, and even I, thought this Bill was the right thing to do. It was a jolly good move and put the police on the same basis as other workers, and we thought there would be no problems. In that frantic legislative climate at the end of 1996-97, heading up to the election, the Police (Health and Safety) Bill was given to a Back-Bencher in another place to introduce as there was no time in the government programme—I believe I had led on about 15 Home Office Bills in that last Session. It was bounced through on the nod in another place at 2.30 pm on a Friday, not having received any debate whatever. It then got 45 minutes in Committee, on a Friday. There was no Report or Third Reading. When it got to this House, it had 19 minutes of debate at Second Reading and, since no amendments were moved, it had no Committee stage, no Report stage and no Third Reading stage; and it passed into law. I am not being critical here, because I put through Bills with even less scrutiny. However, this Act received a total of 64 minutes’ scrutiny in both Houses of Parliament. From a total of about 1,400 Members of both Houses, only one Member queried its provisions. So, I pay tribute to Mr Michael Fabricant MP, who at the Committee stage in another place, said:
“The other area that disturbs me is that my right hon. Friend the Minister of State at the Home Office”—
that was me—
“is reported … as telling a seminar: ‘One of the difficulties in moving towards a statutory regime’—such as this—‘has been the fact that policing duties and the environment in which they are carried out are so different from those which generally apply in factories, offices and other static premises’”.
Mr Fabricant went on to say,
“that concerns me deeply … That question must be dealt with, however, as it is at the heart of the Bill”.
He went on to ask what action officers should take when faced with danger. Do they retreat or intervene? He queried the potential conflict between the operational independence of chief officers and the powers of the health and safety inspectors. He said:
“Those problems have not been properly addressed by the Bill”.
For an answer, Mr Fabricant was given the reassuring line to take which I had prepared and approved, having apparently changed my mind in the intervening period since I had addressed the seminar. That answer was:
“A potential conflict remains between the requirements of health and safety and the operational requirements of the police service but it is well understood by all parties. I am optimistic that those conflicts will always be resolved in a sensible manner against the background of the statutory provisions of the Bill”.—[Official Report, Commons, 14/2/97; cols. 578-584.]
Yet, just six years later, two of the finest Metropolitan Police Commissioners who I have ever had the privilege to work with stood in No. 2 dock at the Old Bailey, in the same dock where people are tried for murder and treason, defending themselves against a criminal offence because a brave police officer, PC Kulwant Sidhu, died when pursuing a criminal in the course of his duties and because another police officer had been injured in another incident.
I take this opportunity to apologise publicly to the noble Lords, Lord Condon and Lord Stevens, for the injustice that they suffered from a law that I was responsible for and which went through with inadequate scrutiny. That prosecution was outrageous, wrong, misguided, expensive and so lacking in common sense that it convinces me that one cannot leave a provision on the statute book which can be abused by bureaucrats—admittedly, well-meaning bureaucrats. It should be amended.
I am not alone in thinking that, thank goodness. Your Lordships will be aware that my noble friend Lord Young of Graffham stated in his report, Common Sense, Common Safety:
“Police officers … should not be at risk of investigation or prosecution under health and safety legislation when engaged in the course of their duties if they have put themselves at risk as a result of committing a heroic act”.
The Health and Safety Executive, ACPO and the CPS, my noble friend concluded,
“should consider further guidance to put this into effect”.
My noble friend Lord Young is absolutely right in coming to his analysis of the problem and I believe that the principle of what he has enunciated is now government policy. With respect, however, my noble friend has misdirected himself in his last sentence. He has suggested that the Association of Chief Police Officers, the Health and Safety Executive and the Crown Prosecution Service should get together and ensure that police officers should not be prosecuted for a possible breach of the law. That is not the right way to go about it. If it is the law, it should be enforced. What signal does it send if a cosy deal has been done between the CPS, ACPO and the HSE not to prosecute police officers? No—the approach must be: if we do not want to see police officers in the dock and being prosecuted for that sort of breach, we must amend the current law which allows it to happen.
I believe that my proposed new clause, while no doubt inadequately drafted and with some technical flaws, attempts to do just that. It seeks to ensure that chief officers are not prosecuted for a health and safety breach while trying to ensure that ordinary police officers are not disadvantaged and receive full employment law protection. At the same time, it does not leave a big black hole with no health and safety guidance whatever, because I want HMIC to promulgate non-statutory guidance.
I turn to the specific subsections of the clause. Subsection (1) says that,
“No police and crime commissioner nor chief officer … shall be liable for prosecution under any health and safety enactment”.
Perhaps I should have added, “Nor any other person holding the rank or office of constable” because I do not want anyone, of any rank, to be prosecuted by the HSE for a breach of health and safety.
Lord Condon
My Lords, I thank the noble Lord, Lord Blencathra, for moving this amendment. In his typically generous way, he has been unnecessarily harsh on himself; certainly he owes no apology to me or, I dare say, my noble friend Lord Stevens. At the time that Act was introduced, none of us had any idea it would subsequently be used in the way that it was.
It was an interesting experience to stand as a defendant in the Old Bailey, gripping the rail that murderers, rapists and terrorists had gripped in previous years, and knowing that if the jury found me and my noble friend Lord Stevens of Kirkwhelpington guilty, I would certainly have resigned from this House and he would have been under pressure to resign as commissioner. It was a very interesting experience.
Had the prosecution succeeded, it would have effectively paralysed operational policing. It would have required probably emergency legislation to rectify matters. In essence, the prosecution was saying that police officers operating above ground or below ground or in any environment apart from flat, ground-level operations, would need to be involved in risk assessments, contractors and a whole range of issues which would have emasculated operational policing. Fortunately, the jury in the trial applied the common sense so sadly lacking in the HSE at the time. To my disappointment, there must have been law officers who were also involved in allowing that prosecution to go forward, but that is by the by.
I realised that the jury was applying the common sense that the HSE had not applied when the expert witness for the HSE, when asked what a police officer should do when pursuing a violent criminal who was a danger to the public and had gone on to a roof to escape, said, with a straight face and with all the gravitas of his office, that at that point the police officer should contact the police station, stop the pursuit, contractors should be called out who should effect and erect scaffolding around the building and put safety rails on the roof before any further action was taken. The jury did what some of your Lordships have done—they started to giggle and laugh. I realised at that point that we probably were not going to have to resign.
The trial judge, Mr Justice Crane, was scrupulously fair throughout the trial, as you would expect, and never expressed an opinion on the merits of the case until it was complete. But once it was over, he said that the prosecution was a waste of time and money and that the HSE had failed to understand the nature of policing in any way. We calculated that it cost at least £3 million in real and opportunity costs—at the time that would have paid for 70 neighbourhood police officers for a year.
However, despite what I have just said, events have moved on and I do not think it is appropriate for the police service, or parts of it, to be exempted from the legislation en bloc. The world has changed; events have changed; the climate has changed. But I congratulate the noble Lord on moving this amendment, which I am sure is a probing amendment. Time has moved on, and to try to go back would bring the Government and this country in conflict with Europe. Complying with European legislation was the genesis of this Act in 1997, so we would be back in that loop of challenge and dispute.
I do not think that this is an opportunity for us to consider seriously taking the police service outwith the jurisdiction of health and safety, but it is a real opportunity for the Minister—either today, subsequently in writing, or at some stage—to reaffirm the need for a sensible balance to be maintained regarding the safety of police officers, which we all value. As the noble Lord said, it so happened that at the time of the prosecution, we had had seven years of an officer safety programme that had brought injuries and deaths to their lowest level for decades. There was a certain irony in being prosecuted as a commissioner and former commissioner just at the point when death and injuries had been reduced to the lowest level almost on record.
There needs to be a sensible balance with regard to the safety of police officers. I can think now of every one of the police officers seriously injured or killed on my watch. I will never forget the anxiety and distress felt by their families and friends. But there has to be a balance between that and allowing police officers to follow their courageous instincts to put themselves in harm’s way to protect the public. I would expect nothing less from them. That is what the legacy of policing is about.
Although the spectre of prosecution remains, I hope that the Minister will feel able to say something reassuring about the balance that needs to be maintained. As we sit here today, a policeman or woman could be doing something today which would lead to them receiving a gallantry medal from Her Majesty the Queen. At the same time, that would provide prima facie evidence that another chief officer should be prosecuted for health and safety offences because, by definition, if they have acted so bravely, they have put themselves at risk beyond the call of duty and beyond what a risk assessment would allow them to do.
I am delighted and grateful to the noble Lord, Lord Blencathra, for raising this issue today. His generous comments in our direction were very warmly appreciated, but no apology is necessary. It is an opportunity for your Lordships' House not to take the police service outwith health and safety requirements but to reassert the need for a sensible balance.
Lord Stevens of Kirkwhelpington
My Lords, I, too, say to the noble Lord, Lord Blencathra, that he owes me no apologies at all. As an old friend and over time, he has shown total support to the police service across the board in a way that others have not. It was very disappointing that some would come up with the saying that we are going back to dustbin lids. To be pointing in the direction of the noble Lord is totally unworthy of whoever said it. I do not wish to take up too much of the time of your Lordships’ House. The noble Lord, Lord Blencathra, has led in taking us through why the Bill came into existence in the first place. I remember, while I was chief constable of Northumbria, also thinking that it was a good idea. That was after the stabbing of Sergeant Bill Forth on an estate in Gateshead.
I also associate myself with my noble friend Lord Condon. It was an extraordinary experience to stand in the dock of No. 2 court at the Old Bailey when, only 30 years previously, I stood in that court with three other officers and was commended with them, although mine was a lesser role, for bravery and initiative in chasing three armed robbers over a roof at night and arresting them in difficult circumstances. It was extraordinary to see how policing had changed in 30 years to become what I refer to, taking the health and safety approach, as being risk averse.
Policing is all about taking risks. It is all about putting yourself, as a servant of the public, in harm’s way on occasion. Yes, my noble friend Lord Condon has led on health and safety. I was, as noble Lords will remember, in Northumbria the first chief constable to introduce long batons, reinforced windscreens and, on only that occasion, stab-proof vests, which were not as effective as what the noble Lord, Lord Condon, brought in for the Metropolitan Police. Therefore, no one in this House or elsewhere could ever accuse the noble Lord, Lord Condon, or me of not treating officers’ safety as a primary consideration in our roles as chief officers. I think we will hear from the noble Lord, Lord Dear, who is included in that, as the noble Lord, Lord Imbert, certainly is. To lose an officer through death or severe injury is an appalling thing to live through, and some of us have lived through it.
I shall quickly talk about where we were on the night we were found not guilty at the Old Bailey. I would certainly have resigned if I had been found guilty; I had my letter in the safe and had shown it to some of my colleagues. It would have been absolutely unacceptable for me to continue as Commissioner of the Metropolitan Police in those circumstances. More important than my future and personal commitment was how it would have affected national policing. We had taken advice from three Queen’s Counsel on what we had to do if we were found guilty. As commissioner, I would have had to issue that night an instruction—it would have to be an instruction because it was legally binding—that any police officer in London or elsewhere in the country who was going to go over a fence higher than two metres had to stop, even if that person was chasing a rapist, murderer or terrorist. Do you know what the test of whether he could go over that fence was? It was not of whether he was protecting the public, but of whether the officer saw that the offender’s life was at risk. What an extraordinary reversal of police officers’ duty to the public. Surely nobody can say that that is the correct way for anyone to proceed.
I know that there are legal niceties around European law. I can quote the articles on how we need to continue with the European directive and so on. However, we should start by going back. It is a delight to have the noble Lord who introduced the Bill here. We know why it was introduced. We know about the lack of thought and attention to detail, and the effects of that. The noble Lord was there; he brought it in. I would like to see us look again at this part of policing—the Health and Safety Act. I would like us to look at it in a common-sense way, taking police officers’ views into account. Of course they need to be protected and must not be prosecuted or sued in a way that exposes them. However, why not go back to the Bill, have a look at the original health and safety legislation, and take in the recommendations of the noble Lord, Lord Young, and the details and accounts that have been put forward in the debate that has taken place in this House? We should not ignore what the House of Lords says because we are spending time on this in detail. I know the Minister is a listening Minister; I know the Home Secretary is a listening Home Secretary. We should look at this and see if we can come up with something that allows the police to go forward without the spectre of being prosecuted when they are chasing a criminal over a roof or putting themselves in danger. That is what the police service is paid to do.
As a police officer for 43 years, I was paid to put myself at risk and in danger on occasion. Sometimes the red mist might have come in front of my eyes. Sometimes I might have been other than sensible. However, at the end of the day, that is what I was paid to do.
Lord Dear
My Lords, enough weight of artillery fire has been directed at this target to demolish it. I shall take a few moments more with my own artillery to reduce the demolished target to rubble. We are not talking about protective clothing or equipment. Clearly, that is a requirement that all chief constables always have to address. We are not talking about the adequacy of kit and, for example, putting appropriate equipment into patrol cars to cone off and properly protect the scene of a road accident, to protect not only the police officers themselves but others who are still present on the road. All of that is common sense.
The nub of this discussion is that we are not here to inhibit the voluntary assumption of risk. Medals have already been mentioned in this debate. I remind this House of the range of medals that are available not only to police officers but to members of the general public and institutions if they put themselves, as is often said these days, in harm’s way. In descending order, you start with the George Cross. Then comes the George Medal, then the Queen’s Gallantry Medal and then the Queen’s Commendation for Bravery. The circumstances in which those medals are earned will vary. One thing that is laid down very clearly as a matter of public record is the percentage of the assumption of risk. In ascending order, for the Queen’s Commendation for Bravery there has to be an assumption of a risk of 20 per cent likelihood of death. That means there are two chances in 10 that you will die if you do it, and that if you do it you accept that risk. Going up through the Queen’s Gallantry Medal and the George Medal, you end up with the George Cross, which has a 90 per cent assumption of death. Nine times out 10, if you do it you will die. That has to be assumed by the person undertaking that obligation, probably in a split second. It has to be judged in that way. It occurs to me that not only police officers but lifeboat crews, fire brigades, coastguards, the military operating outside theatres of war and certainly the police face such circumstances if not daily, certainly on a regular basis.
I repeat—because it is worth repeating—what has already been said about any chief officer who puts forward a recommendation or citation for the award of medals. I recollect putting forward six recommendations for George Medals on different occasions, all of which were granted. It means that, if you take this subject to its logical conclusion, in writing that recommendation, you are also inviting a prosecution against you for having allowed that act to take place. It has to be a nonsense.
I give one more quick example, not from high buildings or the London Underground. What about public order? Like other Members of your Lordships’ House, I have, on occasions in the past, been in control of very large, serious outbreaks of public disorder, when violence and injury were part of the scene. In those circumstances, if the senior officer, with properly equipped and protected officers, orders those officers to maintain a position—to control a road junction, for example—or to advance against a disorderly crowd, he is, by definition, inviting them to a position where they will incur injury. The case follows that they will incur injury.
I conclude by reminding your Lordships of two instances of about three years ago. The first was in the north of England when two young people died in a very large lake and the police were criticised for not going in to rescue them; I do not know the circumstances, but that was how it was reported. Around the same time, in the Thames Valley police area, a barbeque in somebody’s garden got out of hand. There was an altercation, somebody went and fetched a shotgun, and a man was shot and lay bleeding in the garden. Armed officers were called, and were told to stand off until a health and safety assessment had been made. It is said, rightly or wrongly, that the man, had he been rescued, would have lived. It is said, rightly or wrongly, that he died because he haemorrhaged to death because of the timidity of the police officers who were holding back. I emphasise that I do not know the circumstances of that incident in detail. However, I do know that there was considerable public disquiet about both of those instances, and a great deal of criticism of the police for holding back.
The public quite rightly look to the police, and other uniformed agencies, and almost expect bravery. They expect a degree of putting service before self. We should recognise that in your Lordships’ House as well. We cannot require people to be brave; it is the voluntary assumption of risk that is rewarded with the medals that I have already mentioned. However, we must not inhibit it when it would take place. We must encourage and applaud it. Anything that can be done by Her Majesty’s Government to relieve the circumstances which we have heard described today, and which still hang in the air as a possibility, would be a good thing. For that reason, I applaud and support the generality of the amendment tabled by the noble Lord, Lord Blencathra.
Lord Harris of Haringey
My Lords, I was chair of the Metropolitan Police Authority when the noble Lord, Lord Stevens of Kirkwhelpington, as the then Commissioner of Police of the Metropolis, was called to the Old Bailey to answer the charges. I well recall the internal impact that it had on the service, and the implications that would have followed had there been a guilty verdict.
However, the context of all of this is one of ensuring that there is a legal framework protecting the health and safety of our police officers. I do not think that anyone is arguing about the importance of doing that. When I ceased to be chair of the police authority, I took over chairing the committee of the police authority which, among other things, monitors the health and safety obligations of the police service. I am not sure where that function might fall under the new arrangements that we are talking about in the rest of the Bill.
Something that struck me powerfully was that one of the responses of the police service—and, indeed, many other organisations—to new legislation is to create an internal unit that is responsible for guidance on it all. That is often quite separate from the people who are making day-to-day operational decisions. Something that I have tried to ensure and, through the committee that I chair, now require is that each senior police manager certifies once a year that they are personally satisfied with the health and safety arrangements in the area for which they are responsible. Each assistant commissioner of the Metropolitan Police takes on that responsibility for their area. That is not really different from what the law actually says about senior managers, but it has helped to mainstream this as part of the normal, day-to-day operational decisions that any police leader would be taking.
That is the critical point. The danger is where you have a department created which says, “This is health and safety law, and this is what the rest of you in the police service must do”. That is the sort of environment in which you get some of the silly responses that you hear reported or which are alleged to have taken place. However, the way forward is to make sure that the person who has managerial responsibility takes all of these factors into account and then makes a proportionate judgment in line with the law—as was the spirit of the original legislation—to protect their own officers and the safety of the public.
I am not convinced that we should be exempting people from the legislation. I am sure that we should be making sure that the response inside each police service is proportionate and seen as a mainstream activity of senior police leaders. Most senior police leaders that I have spoken to acknowledge that uppermost in their minds all the time is not only the safety of their officers but the public’s safety as well. It is a question of acknowledging that and creating a system whereby that happens, rather than it being seen as an external imposition which then leads to some of the rather crazy anomalies that we sometimes hear about.
Lord Hunt of Kings Heath
My Lords, I, too, thank the noble Lord, Lord Blencathra, for instigating this debate, although the precedent he sets of seeking to put right past legislative mistakes is rather disturbing for some of us. We would not have much Summer Recess this year if we were to follow his course of action. I had an enjoyable two years as Health and Safety Minister and dealt with the Health and Safety Executive on a regular basis. I recall discussions with the Minister of Defence on some similar issues; not in relation to Armed Forces in the theatre, but certainly in training exercises where some of the same issues obtained because of the need in training to help the Armed Forces understand the dynamics of being in theatre. I have some sympathy with where the noble Lord and noble Lords who have served as police officers are coming from.
However, my experience of health and safety is, first, that the legislation since 1974 has had a hugely positive impact in terms of a dramatic reduction in the number of lives lost and injuries suffered by people in the workforce. One ought to pay tribute to the Health and Safety Executive for the work that it has done. I agree with the noble Lord, Lord Condon, when he recognised that and described the HSE as taking what he described as a common-sense approach. Secondly, my experience is that the HSE moved away from a kind of performance-management culture which judged the inspectors on the number of prosecutions that they instituted to one that was much more proportionate. That starts from the basis that if we can encourage employers to do the right thing in health and safety that is our preferred option unless there has clearly been a gross abuse of the law by an employer.
To be fair to the HSE, it has come under considerable criticism in recent years as the number of prosecutions that it has undertaken has gone down, but I think that that has been a common-sense approach. I am sure that the focus of inspectors on giving advice and guidance and seeking improvement is right. The noble Lord, Lord Blencathra, referred to the urban myths that often surround health and safety stories in the media. I share that view. When you dig down into some stories in the media, you find that, far from the Health and Safety Executive inspector saying, for example, “You can’t have hanging flowers in pots”, that is often an excuse used by public authorities for reducing expenditure.
The second problem relates to health and safety advisers. I very much agree with the comments of my noble friend Lord Harris, who has great experience of this. One of the problems is that a whole plethora of health and safety advisers has grown up and the advice that they give to organisations is often very risk averse. Sometimes employers run away from the fact that in the end this matter is not the responsibility of the health and safety adviser but of management and the employer. Sometimes employers need to say to health and safety advisers, “You may have given this advice, but it defies common sense and we are going to carry on doing what we want to do”.
If the noble Lord, Lord Blencathra, were tempted to press the amendment either today or on Report, he would risk compounding his original error by encouraging us to pass bad law. This matter is much better dealt with through effective dialogue between police forces, the DWP and the Health and Safety Executive. I invite the Minister to encourage her colleagues in the DWP to institute discussions between the police service, the HSE and the Police Federation because it is important that the staff in the police force own any future development. The development of a dialogue and a greater understanding between the three parties is probably the best way forward rather than the way proposed in the noble Lord’s amendment.
Baroness Hamwee
My Lords, I am relieved at the way this debate has developed because, when I first saw this amendment, knowing of the noble Lord’s seniority in his party I wondered whether this was some sort of “done deal”. Clearly, that is not the case. It sounds terribly patronising to say this, but the balanced attitude which noble Lords have displayed in their speeches is extremely welcome. The noble Lord, Lord Condon, talked about not exempting the police force en bloc, but where is the demarcation line? I think that all noble Lords have recognised that there needs to be one. Like other noble Lords, I think that health and safety, with a capital H and a capital S, is important and has had an unjustifiably bad press—not that I tend to read that press but one cannot avoid hearing about it. The law in regard to health and safety, and certainly the way in which it is applied, may have gone too far one way, but the pendulum should not swing too far in the other direction.
Lord McKenzie of Luton
My Lords, I thank the noble Lord, Lord Blencathra, for introducing this fascinating debate. However, I should make clear that we on this side join the Police Federation in opposing the amendment, which would remove from police officers the statutory protection afforded by the Health and Safety at Work etc. Act 1974. We believe that this would be a seriously retrograde step.
I had made a note to remind the noble Lord that a Conservative Government had brought the police service within the health and safety legislation through the 1997 Act but clearly I did not need to do so. Therefore, I congratulate him on mentioning that. Notwithstanding the debate that we have had, I believe that it was the right thing to do. I am not familiar with the detail of the prosecutions that took place, which were clearly traumatic and difficult for two very senior members of the police force. The message I take from that is that the prosecution did not succeed and that common sense prevailed. That is the real message. I am grateful that the noble Lord, Lord Condon, said that and recognised that events have moved on.
Perhaps I may pick up the issue around myths, because health and safety is beset by myths, half-truths, and sometimes downright fabrications. The police have been on the receiving end of this too often. As my noble friend Lord Hunt said, this is sometimes because people want to use health and safety as an excuse for not doing something, sometimes by overzealous application of health and safety requirements and sometimes due to ignorance of the law. The HSE, together with partners in local authorities and the wider health and safety community, has gone to great lengths to push back against these myths and to explain what is required. I shall come back specifically on that in relation to a case that the noble Lord, Lord Dear, mentioned.
My noble friends Lord Harris and Lord Hunt got it absolutely right. My noble friend Lord Harris said that it was important to inculcate health and safety into the mainstream of an organisation and to address it proportionately. Analysis shows that organisations, whichever one we are talking about, with good health and safety management invariably have other good management systems in place. My noble friend Lord Hunt referred to the positive impact of the 1974 legislation. That is right. It has stood the test of time. It is non-prescriptive and is meant to be operated proportionately. My noble friend said that sometimes it is the role of overzealous consultants to encourage people down paths that are not required under the legislation. One of the things on which I would congratulate the Government is the introduction of a register for consultants. It is work that we could claim to have started in our term of office and it will help to address this issue.
The noble Baroness, Lady Hamwee, referred to the bad press that the Health and Safety Executive and others get. Let me refer to the report of the noble Lord, Lord Young of Graffham, mentioned by the noble Lord, Lord Blencathra. In Appendix D, entitled “Behind the myth: the truth behind health and safety hysteria in the media”, he picks up one of the issues referred to by the noble Lord, Lord Dear. The appendix refers first to the “Story” and states:
“In May 2007, newspapers published a story concerning the death of a 10-year-old boy who drowned while fishing for tadpoles with his siblings in an outdoor pond. Questions were asked about the role of the emergency services and accusations were made that the policemen involved stood by and watched a boy drown because health and safety rules forbade them from entering the water to save him”.
The report goes on to record the “Reality”. It states:
“Fishermen noticed that two children had fallen into the pond and they tried to bring the children in with their fishing tackle. They managed to drag a girl out of the pond but were unable to reach her brother. One of the fishermen tried to call 999 but was unable to get through so he called his wife. She rang the police and reported the incident. There was some confusion over the location of the incident and this resulted in the police attending the incorrect location. At the same time Police Community Support Officers were undertaking a normal patrol when they came across the incident. They alerted police officers to the correct location. The boy’s step-father and friend arrived at the pond just before the police officers. They immediately dived into the water and brought the child to the surface. The police officers then arrived and one of them dived into the water and helped to bring the boy onto the bank. Unfortunately by this point he had been underwater for 20 minutes”.
That is the gap between the myth and the reality.
I am bound to say that there are responsibilities on us all not to recycle these myths. The noble Lord, Lord Young of Graffham, when addressing the IOSH conference a little while before he was formally appointed, cited an incident some 18 months before when two police community support officers had stood by and watched a 10 year-old boy, who had jumped into a pond to rescue his sister, drown. The noble Lord said that they explained afterwards that they had not had their health and safety course on rescuing people. He also said that if that was thought to be completely exceptional, there was a case only a few weeks before where a man allegedly drove his car containing his two children into the river. He and the boy escaped but his sister was trapped screaming in the car. The two policemen stood by for 92 minutes while a diving team was brought from the other end of the county and said later that they were not allowed to rescue the girl themselves on health and safety grounds, and she died the following day. We all need to be mindful not to recirculate these myths.
Lord Dear
Perhaps the noble Lord will accept that my point was not on the facts, which I know; it was on the public perception of inactivity by the police. Criticism followed because there was an expectation that the police would act bravely and positively rather than negatively. I was making that narrow point.
Lord McKenzie of Luton
No, indeed, I very much agree with the noble Lord. I was not suggesting that he, by raising the point, was helping to recirculate the myth; I was just indicating how it can unwittingly be recycled, creating the concern that he identified.
The HSE issued guidance in 2009 in a document entitled Striking the Balance between Operational and Health and Safety Duties in the Police Service. That was in response to concern and misunderstanding about how police services can comply with health and safety legislation in their operational work, given the often testing and difficult circumstances in which they are called to act. I understand that work is now under way to draft an explanatory note to the guidance which will help further to clarify how effective and efficient policing can be delivered.
That document, which was jointly produced, illustrates that these are issues of balance. In the principles that the document enunciates, it states that there are particular challenges for the police:
“they have to send officers and staff into dangerous situations in circumstances when anyone else would be seeking to get away from the danger … in fighting crime, the Police Service is, in effect, reducing the overall risk to the public— police officers may need to take actions which put the public and themselves at risk. This is appropriate when the benefits from taking these risks outweigh the sum of all other risks; however, in doing so, police activities may create other risks”.
The guidance sets out why the application of health and safety law is challenging for the police service, but it also makes clear that health and safety duties are not absolute and are generally qualified by the test of what is reasonably practical. It points out that the Health and Safety at Work Act places duties on employers, but also on employees to take reasonable care of themselves and others and to co-operate with their employer, but it does not require all risks to be eliminated. The Health and Safety Executive recognises that even when all reasonably practical precautions have been taken to deal with foreseeable risks, injuries and deaths will still occur.
Let us not forget, as was raised by several speakers in the debate, that dozens of police officers have lost their lives or been injured by putting themselves in harm’s way on our behalf. The guidance also sets out what officers and staff should expect of the police service in terms of good health and safety management systems and how the HSE will approach any investigation of individual police forces.
Following the report of the noble Lord, Lord Young of Graffham, commissioned by the Prime Minister and debated in your Lordships' House in November last year, renewed guidance was issued by the Crown Prosecution Service concerning circumstances where police officers may, in performing an heroic act, have breached Section 7 of the Health and Safety at Work Act in failing to take reasonable care of their own safety. It states:
“In those circumstances, and where the safety of others is not put at risk, public interest would not be served by taking forward a prosecution under section 7”.
The document and the other guidance seems to do just what noble Lords have asked, which is that we need to address this in a sensible, proportionate way and there needs to be co-operation in how these measures are applied.
Although not without challenge, the current system is not broken. As my noble friend Lord Hunt said, the HSE gets challenged as many times for not prosecuting people as for prosecuting people. The briefing we received from IOSH includes a quotation from the chairman of the Police Federation of England and Wales. It reads:
“All the major police officer representative bodies; the Association of Chief Police Officers, the Police Superintendents’ Association and the Police Federation agree the position that the Police (Health and Safety) Act in its current form has resulted in significant improvements in the health, safety and welfare of police officers whilst still allowing effective policing to be achieved”.
The law as it stands serves both the public and police effectively. It is certain interpretations of the law that have produced isolated anomalies. Therefore, clarity of interpretation is needed rather than the unnecessary changes to health and safety law that could turn the clock back decades on the protection afforded to society.
The briefing paper that we have received is clear that, as deliverers of front-line policing, they know that health and safety legislation does not prevent them carry out their duties for their communities. They are clear that since the 1997 Act there has been a real and beneficial reduction in sickness and injury to police officers while on duty. The noble Lord, Lord Condon, made that point. There has been improvement in equipment, technology and training given to officers.
The impact of the amendment would be to remove the statutory protection afforded by the Health and Safety at Work Act from police officers—I think that that was the point made by the noble Lord. It would do that not only when officers were involved in front-line and, particularly, dangerous operations but when they might be involved in more routine duties, if such exist for the police service, and training. The provisions of proposed subsections (3) and (4) would seem to undermine the chain of command and create a possible free-for-all in situations of operational delicacy. Perhaps, in responding, the noble Lord could clarify the definition of,
“public official, of whatever rank”,
and whether that would include a police officer of more senior rank to the individual involved. If that is right, that is an encouragement to ignore the chain of command. That may not be what the noble Lord intended so perhaps he would take the opportunity to clarify that.
It seems to me that if there are issues and problems to address, the solution is not to discard the statutory protection—the Health and Safety at Work Act—but to address issues of training and management systems and not to throw away any engagement with legislation that has served this country well for nearly 40 years, which is why we are unable to support the amendment.
Lord Wallace of Saltaire
My Lords, I thank all noble Lords who have taken part in a very useful, serious and worthwhile debate. It is appropriate to say from the government Front Bench that we will take away the points made and consider whether we have got the balance right. On that basis, I will ask the noble Lord to withdraw his amendment. I note that prolonged service as Chief Whip does not adversely affect one's rhetorical skills.
The noble Lord, Lord Condon, talked about the need for a sensible balance, and that is what we all want to achieve. The noble Lord, Lord Stevens, rightly said that policing is all about taking risks. My wife and I were invited to attend the Leeds police awards dinner some months ago and the award for bravery was given to a constable from Northumbria who had been blinded when stopping an offender in his car. It was quite an emotional experience.
My only close experience with the Health and Safety Executive was when the parliamentary choir was due to perform in Westminster Hall in 2003. On taking the portable organ into Westminster Hall and playing the 16-foot stop, bits of wood began to fall off the roof. Our first response was to say, “The Minister responsible for the HSE is a contralto in the choir, surely we can override the rules”, but the HSE pointed out that in addition to parliamentarians, there would be senior civil servants in the audience, so it would clearly be dangerous to go ahead with the concert and we had to make do with performing in Westminster Abbey instead.
We all recognise the culture of health and safety that has evolved through the media. I regularly read the Daily Mail, which demands that there should be nil risk to the public in anything that is undertaken in a public place. It then sets out to attack the regulations that were drawn up in response to those demands. That is how we have got to where we are now.
The proposal to repeal this clause would have to go significantly further than the noble Lord, Lord Young, recommended in his independent review of health and safety last year. He did not call for the duty to be removed as it serves both to,
“protect employees and ensure that activities carried out do not adversely affect the health and safety of other people”.
Of course the Government recognise the need to strike a balance between protecting the police and the public while acknowledging that it is in the nature of police duty that officers take risks and should not be at risk of prosecution under health and safety legislation when engaged in their duties.
Following the report of my noble friend Lord Young, the Crown Prosecution Service issued guidance in March—which the noble Lord, Lord McKenzie, quoted—under the title, Heroic Acts by Police Officers and Firefighters, which clarifies the legal situation and highlights the fact that the public interest would not be served by taking forward the prosecution of police officers who act in heroic ways when decisions are likely to be taken in fast-moving and dynamic situations. The Government will carefully consider the extent to which the recommendations of my noble friend Lord Young's report have been adequately met through the CPS guidance. We will institute a dialogue, if it is needed, between the police, the Home Office, the DWP and the HSE, as suggested. We recognise that this has to be a question of balance and we will assess whether the balance has now been struck in the most sensible place.
Lord Blencathra
My Lords, I am so pleased in retrospect that I tabled this new clause, because it has enabled me and the House to hear such excellent speeches from noble Lords such as the noble Lords, Lord Harris of Haringey, Lord Hunt of Kings Heath, Lord Condon, Lord Stevens and Lord Dear. Tomorrow when I read Hansard I will come to the same conclusion that I came to when I heard their speeches, namely that between them they have got the solution to this problem.
I do not want the whole police service exempted en bloc from health and safety legislation, or even from its statutory duty. However, neither do I want a situation in which we rely mainly on guidance, so that one day, somewhere, a prosecutor or an HSE person, possibly not following that guidance, will create a situation where a Metropolitan Police commissioner could still be in the Old Bailey in the circumstances that I described, and which the noble Lords, Lord Condon and Lord Stevens, witnessed first hand. I say to the noble Lord, Lord McKenzie of Luton, that common sense did prevail—but in the jury. To me, that was a couple of steps too late; I wish it had prevailed in the HSE and in those who brought the prosecution.
I am perfectly content to withdraw my new clause and will not come back to it on Report. However, I urge Ministers to go back to the Home Office tomorrow with the Official Report and initiate that dialogue, because I am not convinced that the guidance at the moment is enough. I would like to see a few more steps taken to make sure that there is a deeper understanding. The noble Lord, Lord Harris of Haringey, was so right to say that the person responsible for health and safety should not be the health and safety officer but every manager of every organisation, thinking it and doing it. There must also be an understanding in the HSE and the prosecuting authorities of the special, unique nature of the police service.
I conclude by saying that if at the end of the day, after all the dialogue, we still face the possibility that a brave police officer may get a bravery award one day while their commanding officer may be prosecuted for that act, that will be wrong. No matter how many million words of guidance and advice we have, we cannot have a situation where a chief officer is still liable to prosecution for a brave act by one of his officers. Let us initiate a dialogue. I am not volunteering to participate; I have done my inadequate duty.
I was always told that when one went to the House of Lords, one would hear expert speeches. I have had the privilege today of listening to such speeches from all sides, which proves that this House should continue in its present form, because we would never have heard these speeches from elected politicians. I beg leave to withdraw the amendment.
Baroness Hamwee
“Exemption from civil proceedings for trespass brought by offender
(1) Section 329 of the Criminal Justice Act 2003 (civil proceedings for trespass to the person brought by offender) is amended as follows.
(2) In subsection (1)(b), at the end insert “, and”.
(3) After subsection (1)(b) insert—
“(c) at the material time, the defendant was not a constable acting in the course of his or her duty.””
Baroness Hamwee
My Lords, I beg to move Amendment 233A on behalf of my noble friend Lord Lester of Herne Hill. Reference has just been made to experts. I am not as expert as my noble friend, and I may get into trouble because I am not going to use all the briefing that he has given me.
Amendment 233A would exclude from Section 329 of the Criminal Justice Act 2003 a constable in the course of his duty. That section is what noble Lords might know as the Tony Martin defence. It was enacted in response to the case of Tony Martin, who shot two intruders in his home thinking they were attempting a burglary. It provides that the court must give permission for an offender to bring a civil suit for an assault committed at the time and in the circumstances that the offender committed the act for which he was convicted. It provides the defendant with a defence to such proceedings provided that his action was not grossly disproportionate. The defendant must believe the offender was about to commit an offence, was in the course of committing one or had committed one and that his actions were necessary to defend himself or someone else, to protect or recover property, to prevent or stop the offence or to catch and secure the conviction of the offender.
At the time that the section was being debated, the noble and learned Baroness, Lady Scotland of Asthal, said that the section,
“would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders”.
She also said:
“It benefits third parties who are not the direct victim of the offence, but who may have intervened to protect the victim or deter the criminal”.—[Official Report, 11/11/03; cols. 1307-08.]
That was the only indication of the intended use of the section by those who are not direct victims of the crime.
In 2009, there was a case in the Court of Appeal: Anthony Adorian v The Commissioner of the Metropolitan Police. In his judgment, Lord Justice Sedley said:
“There is nothing on the face of the section or in its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests”.
Only police defendants have invoked this section. Lord Justice Sedley went on to say:
“The consequences should not go unnoticed. In place of the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country—that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary—the section gives immunity from civil suits, not confined to those involving personal injury, to constables who make arrests on entirely unreasonable grounds, so long as they are not acting in bad faith, and accords them impunity for using all but grossly disproportionate force in so doing”.
In summary, Section 329 has only ever been used by the police, and my noble friend tells me that it has led to a mismatch between civil and criminal proceedings with no equality of arms between police and private individuals. The current position does not recognise that the police are public officers of the state endowed with special powers and that as a corollary they have special obligations that Section 329 allows them to circumvent. My noble friend says that ordinary people may be given some leeway for honest and instinct overreactions when protecting or defending themselves or another from a crime but, on the other hand, a police officer trained in the use of force must be required to justify his or her actions objectively and to use no more force than is reasonably necessary.
I had not appreciated until listening to the previous debate how neatly this followed on in some ways. My noble friend Lord Lester has tabled this amendment and as he is not able to be here this afternoon he asked me to move it.
Lord Bach
My Lords, I congratulate the noble Baroness, Lady Hamwee, on having picked up this point so well from her noble friend Lord Lester. I congratulate him too on putting down this amendment. I hope he will forgive me in his absence for describing him in this instance as a dog with a bone. He has come back to this issue today after first raising it following the judgment in the case that the noble Baroness referred to when the previous Government were in power. He did that in the course of a couple of Bills. At that stage Ministers, including me, I have to admit, had to tell the noble Lord, Lord Lester, that consultations would take place with the police.
There is undoubtedly a point here—the noble Baroness has described it very well. This particular section of the 2003 Act was clearly intended as some sort of response to the Martin case and the Act’s purpose was really intended, or so it said, for other citizens as opposed to the police. There is some sort of at least theoretical clash, as Lord Justice Sedley pointed out in the instant case, between the position of police officers and others on arrests, so it does require an answer from Government.
We said on 25 February 2010—it was me, I am afraid to say—that the consultation that we had said would take place had not taken place by that date. But of course the noble Baroness will know that her Government have now been in power for a good 13 months now—it is 15 or 16 months since I uttered those words—and I am quite sure this consultation will have taken place regardless of government. I therefore look forward to hearing her response to this small but quite important point about the 2003 Act. I presume the consultation has taken place and the Government will be able to tell us what they intend to do about the amendment in the name of the noble Lord, Lord Lester.
Lord Wallace of Saltaire
My Lords, it falls to me to answer this debate. I have to say that I am not fully briefed on whether or not the consultation has taken place. I suspect there was a little bit of irony there from the noble Lord, Lord Bach, and his confidence that this will automatically take place regardless of changes in government, but I will write to him to inform him about how far it has got.
We are talking of course about Section 329 of the Criminal Justice Act 2003. The intention was to benefit victims of crime, together with third parties who are not the direct victim of the offence but who may have intervened to protect the victim or deter the criminal. We are aware that it has so far been invoked only in respect of damages claims by police rather than by others who have sought to rely on the provisions as a defence in a number of cases. As noble Lords have mentioned, Lord Justice Sedley, in the case of Adorian v The Commissioner of Police of the Metropolis, made a number of criticisms.
Section 329 of the 2003 Act is not a licence for the police to use disproportionate force as under the criminal law. The police can use only reasonable force. Neither does the section affect the criminal liability of householders, victims and others. Let us also keep in mind that the section applies only when the offender has been convicted of an imprisonable offence committed on the same occasion as the incident he is now suing for.
With these points in mind, this amendment raises a number of issues. First, is it fair and reasonable under general law to treat a person who holds the office of constable less advantageously than any other member of the public? Secondly, we should be very clear on what the practical consequences will be before making an amendment which would result in making it easier for a convicted offender to sue the police for damages. Thirdly, we need to be a little clearer on how this amendment might work, given that the powers of constables apply 24 hours a day, seven days a week. An off-duty constable who exercises this power to arrest a suspect found breaking into his own private dwelling or a neighbour’s dwelling would still be acting in the course of his or her duty. We also need to consider how the amendment would apply to special constables or others who are lawfully employed to prevent crime.
We note the thrust of the comments in the Adorian case and that the application of Section 329 to the police was not expressly discussed in Hansard at the time that that legislation was passing through Parliament. However, we are currently unconvinced that for the police to invoke Section 329 is really an unintended consequence of that section. Arguably, the police are the people most likely to rely on a provision which restricts liability towards a person who is committing a criminal offence at the time. The reference in Section 329(5)(b) to the defendant believing that his act was necessary to,
“apprehend, or secure the conviction, of the claimant after he had committed an offence”,
might suggest that it was not so very far from Parliament’s contemplation that the police could seek to invoke this provision. But what matters is whether it is right, fair and proportionate for this protection to apply to constables.
I am afraid that as yet we remain unconvinced that the provisions in Section 329 are not right, fair and proportionate in their application to the police. Therefore, we remain unconvinced that they require amendment as the noble Lord suggests. In particular, we cannot see any reason why the civil liability of a victim and a constable who act jointly on the same occasion, or act as individuals on separate occasions, to resist and detain the convicted offender should not be subject to the same threshold.
Nevertheless, as this amendment raises important issues relating to the role and powers of the police, and given that the noble Lord has been patiently pursuing this matter for some time, I can give the noble Lord and the noble Baroness on his behalf the assurance that this Government, while bearing in mind other government priorities, will take one final look at this matter before the next stage. On that basis, I hope that the noble Baroness feels able to withdraw this amendment.
Baroness Hamwee
My Lords, my noble friend may be a dog with a bone, but he is quite a pedigree sort of dog. Clearly, the noble Lord as an outgoing Minister did not leave a letter on his desk for his successor, so we have no amendments.
Baroness Hamwee
My noble friend has made a number of detailed points on the amendment, which I understand. I am prepared now to undergo a seminar by my noble friend when he has read Hansard but the important point is that the Government have acknowledged that this amendment is deserving of some thought. I am grateful for that and I beg leave to withdraw the amendment.
“SCHEDULEYouth rehabilitation orders: alcohol monitoring requirement1 The Criminal Justice and Immigration Act 2008 is amended as follows.
2 In section 1 (youth rehabilitation orders), after subsection (1)(n) insert—
“(na) an alcohol monitoring requirement (see paragraph 24A of that Schedule),”.3 (1) Schedule 1 (further provision about youth rehabilitation orders) is amended in accordance with this paragraph.
(2) In paragraph 1 (imposition of requirements), after sub-paragraph (k), insert—
“(ka) paragraph 24A(2) (alcohol monitoring requirement), and”.(3) In paragraph 34(4) (provision of copies of orders), after the entry for “an intoxicating substance treatment requirement”, insert—
“An alcohol monitoring requirement | Any person specified under paragraph 24A(1)”. |
(2) In paragraph 3(1) (duty to give warning), after “youth rehabilitation order”, insert “, other than an order imposing an alcohol monitoring requirement,”.
(3) After paragraph 4, insert—
“Breach of an alcohol monitoring requirement4A If the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with an alcohol monitoring requirement, the officer may arrest the offender and must cause an information to be laid before a justice of the peace in respect of that failure.”.
(4) In paragraph 21(1) (warrants), after “by virtue of this Schedule” insert “or under paragraph 4A”.”
Baroness Finlay of Llandaff
My Lords, I am most grateful to the Front Benches for allowing a partial degrouping whereby we will debate Amendments 235, 236, 242 and 243 in this group, and in the next group consider Amendment 237A and link with it Amendment 244.
This is a new part of the Bill. The new clause I want to attempt to insert relates to a requirement for alcohol monitoring. This Bill was heralded in the gracious Speech as legislation that would be introduced,
“to make the police service more accountable to local people and to tackle alcohol-related violence”.—[Official Report, 25/5/10; col. 6.]
That is precisely what this amendment seeks to do. It falls within the scope of the Bill as it would give the courts additional powers regarding alcohol-related behaviour and complements police and licensing authorities’ powers. It is consistent with the objectives of the legislation by ensuring that alcohol-related violence is tackled at the point of sale and supply, and by changing behaviour related to alcohol and crime through clearer punishments. The Mayor of London, with whose office these amendments have been prepared, wants to trial a compulsory sobriety scheme in the capital. This amendment would introduce a new clause to allow the introduction of a new sentencing power: the alcohol monitoring requirement. It would amend previous Acts, the Criminal Justice Act 2003 and the Criminal Justice and Immigration Act 2008.
Let me be clear that the amendments would not require the adoption of a scheme, but would simply allow authorities such as courts within the Mayor of London’s region to pilot and evaluate the scheme. The alcohol monitoring requirement would give courts the power to require that an offender should abstain from alcohol and be regularly tested to ensure compliance as part of any community or custodial sentence. If the test is breached, there is a quick and coherent process of possible apprehension, which may mean a night in a police cell and reappearance in the magistrates’ court. That would have to be decided locally. A compulsory sobriety scheme does not criminalise youngsters. It allows the sentencing of those already before the courts to be more appropriate.
I shall try to explain why it is needed, how it will work, and how its introduction in pilots will allow the cost-efficacy models to be tested in practice. Alcohol-related anti-social behaviour and violence plagues our towns and cities, and London has disproportionate levels of these. It threatens the safety and well-being of citizens and is burning a hole in police and NHS budgets. Indeed, the Home Office recently identified that 46 per cent of police authorities find that the night-time economy now accounts for the main cause of overtime payments. In 2008-09, 8.6 crimes per 1,000 population were alcohol related, but in London the figure is 12.4 crimes, which is staggeringly high. Despite under-reporting, last year in London alcohol was flagged against 18,403 crimes of violence against the person, 3,612 incidents of criminal damage and 2,136 theft and handling offences. London has the highest rate of alcohol-related violent crimes and sexual offences in England.
Alcohol also plagues our homes, as much domestic violence is alcohol-linked. In England and Wales, almost half of all violent crime each year—almost 1 million crimes—is alcohol fuelled, costing about £8 billion to £13 billion per year overall. However, the total cost to the nation is nearer to £22 billion when all aspects are considered.
Last year, alcohol misuse cost the NHS £2.7 billion, with 70 per cent of the cost borne by the hospital sector. One in five calls to the London Ambulance Service last year were alcohol related—a total of 60,686 calls, or one every 8.5 minutes. This is a 25 per cent rise since the new licensing laws were introduced. Forty per cent of all A&E attendances are associated with alcohol misuse, but, after 10 o’clock at night, this proportion rises to more than 70 per cent and, in some parts of London, to more than 80 per cent. Many of these attendances involve people who are drunk, abuse staff, are difficult to manage and make disproportionate demands on medical, nursing and security staff at high-cost times, with care of seriously ill patients who are not alcohol fuelled being potentially compromised in the process.
In England and Wales, 319 people were treated in A&E for injuries in violence, of whom 130,000 were intoxicated at the time of injury. That was last year alone. Overall, there were 1 million alcohol-related hospital admissions in England and 54,000 in Wales. If the current trajectory is maintained, there will be 1.5 million such admissions annually by the end of the current Parliament. This is an escalating problem. On top of this, children in homes where alcohol-fuelled violence and aggression occur are at risk of ending up in care and underperform academically. They also learn the behaviours they witness. They are at greater risk of alcohol-related disorders, both medical and social, later in life.
The amendment would allow for the alcohol monitoring requirement as an additional recourse in the courts. The requirement combines rehabilitation for the individual, the potential for reductions in repeat offending and custodial sanctions. More importantly, it will have a wider impact on society by reaffirming that alcohol is not an excuse for criminal behaviour. It also represents a shift in the way we punish offenders by offering clear, immediate consequences if the alcohol monitoring requirement is breached, which is a completely new approach. It is based on the model from South Dakota in the United States, where the benefits include reducing recidivism, reducing the number of people going into prison and therefore the cost of prisons, and allowing offenders to remain with their families and in employment.
A number of key principles are drawn from the original South Dakota scheme. First, the offender must undergo daily testing. Secondly, the offender must pay for their testing in some form, ideally daily or weekly as opposed to a one-off fine. Thirdly, there must be a formal process for apprehension of the offender, or something else if the terms of the programme are breached. Unlike the current system, the new and innovative rules are simple and transparent, and punishment is certain, proportionate and swift. They employ behavioural triage to reserve prison for appropriate offenders, mandate abstinence and offer treatment. In South Dakota over the past six years, 99.6 per cent of tests collected have been negative, showing a remarkable compliance with the scheme.
The three main objectives of the alcohol monitoring requirement are: first, to reduce the number of alcohol-related incidents, particularly those which are violence related, and to improve public safety, perception of safety and public well-being; secondly, to reduce the cost of alcohol-related crime to statutory services; and, thirdly, to support a long-term shift in public attitudes towards the use of alcohol by making a clear statement about the acceptability of behaviour surrounding alcohol consumption supported with clear consequences.
This is how it might work. The person is convicted of an offence that is shown to be alcohol related. In sentencing, the court will have the additional option of the compulsory sobriety scheme. At regular intervals, decided by the court—usually daily or twice daily—the offender goes to a testing point, pays for the test and is breathalysed. If there is doubt, a further test can ensue. If the person is over the limit, the suspended element of their sentence could come into play. The cost of the test could be set at an appropriate level for the individual; it will be substantially less than they would have spent on alcohol anyway and will offset the cost of testing. By each test being paid for, the financial blow to others in the home, such as children, which occurs with a one-off fine is avoided. The offender stays at home with the family and remains sober, remains in work if employed and the children in the family do not bear the cost of the offence.
The punishment can fit the crime. The amendment will allow such a scheme to be piloted in areas that wish to try it. It gives more local levers to alcohol control. I beg to move.
Viscount Astor
My Lords, I am extremely interested in the noble Baroness’s amendment but it addresses only half the issues. In my experience, the crimes that come about from abuse of alcohol start because there has been an abuse of drugs first. That mixture is important; it is quite rare that it is purely alcohol. In the late-night bars and clubs that I used to see, it was a combination of the two. I do not know how my noble friend the Minister is going to reply, but to ignore any treatment on the drug part of the issue would deal with only half the problem. Unless one deals with that, the noble Baroness’s initiative would be bound to fail.
Lord Brooke of Alverthorpe
My Lords, I support all of the amendments of the noble Baroness, Lady Finlay, and I shall speak particularly to those in my name.
In response to the noble Viscount, Lord Astor, without doubt there is a frequent link between drug taking, drinking, nicotine and a range of other addictions, including gambling. However, alcohol is on a quite different scale to drug taking. Even though drug taking is a big problem, we are talking about a scourge which afflicts many city centres throughout the whole of the country. I shall not repeat all the points that I made at Second Reading but, in addition to London, there are significant problems elsewhere. London is probably the worst of the lot but, in Brighton, in the order of 70 per cent of all admissions to A&E on Friday and Saturday nights are alcohol related. Some cases relate to substances, too, but primarily they are alcohol related. The chief medical officer down there, to whom I spoke last week, said that they were spending in the order of £100 million a year in the Brighton area in dealing with the problems which arise. We have to give careful consideration to the views put before us in these amendments.
Alcohol leads to problems with public disorder, drinking and driving—on which there will be amendments later—and, in particular, domestic violence. I recall particularly the Home Secretary’s statement last summer when she made it clear in a speech to the Women’s Aid conference that the Government’s ambition is nothing less than ending all forms of violence against women and girls. I see an opportunity in the amendment to address issues involving other related topics, particularly violence against women.
I declare an interest as a patron of the Everyman Trust, which endeavours to provide counselling for men—it is mainly men but there are one or two women—who are involved with violence within their families. They come to us because they want to stop being violent. They have a self-awareness of their problem but they do not how to resolve it. In debates in the House, the noble Baroness, Lady Verma, has been involved in encouraging us to try to expand the activities of the organisation.
If we can get these amendments through I can see a further opportunity arising. If the Government were to cast their eyes over wider fronts they would see chances—particularly given their concept of the big society—to pull in a range of people to assist with those going through this monitoring scheme.
I am sorry that the noble Lord, Lord Bradshaw, is not with us today, and I hope we can all wish him a speedy recovery so that he is back with us quickly. He knows a lot about the police work undertaken in the Thames Valley and I want to mention a model developed there, which started in High Wycombe, where there was co-operation between the police, NOMS itself, which was running the scheme, and Alcoholics Anonymous. Under the scheme, offenders who had either been sentenced, were facing imprisonment but had their imprisonment stayed or alternatively had been given community sentences were obliged, provided they were willing to participate, to attend AA meetings. They went to these meetings under guidance from NOMS and got chitties that confirmed they had attended the meeting and that they were endeavouring to work the 12-step programme, which is used in many places to secure recovery from both alcohol and drug addictions, and, indeed, other related addictions. This worked extraordinarily successfully. It was started in 2007 and the intention was that this was going to be rolled out throughout the rest of that area, and in turn perhaps used in locations in other parts of the country. Indeed, I believe there has been some experimentation with it in the London area.
AA, for those who do not know anything about it, has existed for over 60 years. It has a very strong record in helping people to recover from alcoholism and other related addictions. It has 2.5 million members in 160 countries and a reasonably high level of sobriety achieved among the participants. Most importantly, it is an organisation that provides a free service. It is entirely self-supporting and does not take a penny from any Government in any country in the world. However, along with many other voluntary organisations that I can name—like the Everyman Trust, which I just mentioned, Respect, which assists women who have problems with violence within their families and which also assists the males in those families, and also MARAC, a very well known organisation assisting women with violence—it can be linked in to these kinds of experiments if they are set up within the London area. There is a very significant opportunity here for the Government to think on a broader frame rather than simply seeing it in criminal terms.
The experiment in the Thames Valley, regrettably, has ground to a halt and has not been rolled out in other parts of NOMS or in other parts of the country. It managed to secure an award for one of the best new initiatives taken to deal with people with criminal offences linked to alcohol, but, for funding reasons, it has not been taken any further forward. I can understand in the present circumstances why there is a disinclination to start embracing other changes that may incur additional expenditure, but, balanced against that, we have to look at the costs that are incurred through abuse of alcohol over such a wide front and see whether we cannot perhaps utilise the willingness of volunteers in other organisations to help us to try to find the solution.
I suggest to the Minister, and in turn to the Home Secretary, that they give some very favourable consideration to the proposals that have been laid before the House today and that they look at some of the other activities that have been undertaken by NOMS—starting in High Wycombe and then partially rolled out—to see whether we cannot bring a number of these initiatives together. Perhaps by the time we come to Report, if the Government are willing to give favourable consideration to it, we might even look for one or two additional amendments that would pull in voluntary organisations to ensure that people embarking on sobriety stay with it and avoid the kind of problems we have had in the past.
One thing that any of us who have been involved with drink and drugs knows is that to maintain recovery and sobriety, there has to be an ongoing process. If you put people in prison, get them sober in prison and then let them out through the door, the next thing is they are back on the circuit again if they are on their own. They need support and assistance on an ongoing basis. This provides an opportunity to get different solutions to the problem on the statute book and then in turn to link in to various elements within the third sector which would jump at the chance to be working with Government in providing long-term solutions for people with these problems.
Among the reasons why the High Wycombe model did not work was that it was run entirely voluntarily within that area but such a model is not in the Bill. Getting this into the Bill is very important not just for London but for those other areas that might want to pick up and run with it. It might set a model that the Government can then utilise—a new initiative for the rest of the country.
Baroness Hayter of Kentish Town
My Lords, in welcoming this initiative, both as tabled by the noble Baroness, Lady Finlay, and as supported and encouraged by the Mayor of London, I look forward, if this is successful, to the Boris bins where people will go for their regular breathalyser. The initiative could be one that runs. I particularly support this initiative because, as my noble friend Lord Brooke has mentioned, of its recognition of the role that alcohol plays in crime and, especially, in domestic violence.
As an Alcohol Concern report has shown, there is already clear evidence of the link between alcohol and domestic abuse and, indeed, with child protection issues. Alcohol Concern has documented how often the criminal behaviour is repeated if the alcohol abuse is not tackled. It has many examples of its clients saying, “He only hits me when he's been drinking”—and I am afraid it is mostly a he. The response of advisers such as the alcohol support workers is, “If you knew you were going to hit the person you most loved once you have drunk, do you think you'd have that first drink?”. That is the problem—the fact that so many men continue to take that first drink shows how valuable an intervention aimed at offenders could be. The sobriety scheme could play an important role in this, although it is not enough on its own.
As my noble friend has just mentioned, alcohol referral schemes need to work alongside the sobriety scheme because people who have failed to tackle their misuse of alcohol are likely to need some assistance to work in parallel with this breath-testing. This may involve just a fairly brief intervention by experienced staff but I hope that the scheme would be allied to the provision of such help. Such help will depend on the provision of resources both by the Greater London Authority, if it happens there, and by the Government. It is deeply discouraging that the Department of Health has just cut by 100 per cent the funding of Alcohol Concern, the national agency on alcohol misuse which not only does the bulk of preventive work in this area but helps to set up and support local voluntary agencies that provide front-line services such as the Camden alcohol service agency, in which I declare an interest as a trustee.
Without Alcohol Concern and other national agencies working to ensure that help is available across London and elsewhere for such people who would enter this scheme, we risk this excellent initiative being undermined by dealing only with short-term sobriety rather than longer-term drinking problems. Nevertheless, I warmly welcome this initiative and congratulate the noble Baroness, Lady Finlay, on introducing it. I look forward to seeing such a pilot, albeit one that I hope is supported with treatment for those who have failed to manage their alcohol abuse.
Baroness Stowell of Beeston
My Lords, I, too, support this initiative introduced by the noble Baroness, Lady Finlay of Llandaff—so much so that I have put my name to Amendments 242 and 243. I will not detain the House for long in explaining why but, briefly, I, like everyone else, also have concerns about antisocial behaviour and crimes. They are the sorts of crimes that are often fuelled by alcohol. My interest is in how the people and communities affected by those crimes are impacted in terms of their own morale and their ambitions for themselves and their families. So when I first heard about this initiative proposed by the Mayor of London’s office, it struck me as something which made sense and was worth a go. For that reason, I thought that this proposal was seriously worth considering and I wanted to support it today, not just because of what it is trying to achieve in reducing the kinds of crime that affect people’s lives in a penetrating and long-term way but because the simplicity of the way it operates. As has been described in detail by the noble Baroness, Lady Finlay, if alcohol is found to have been the primary reason behind a crime, the offender commits to staying sober, is required to take a test twice a day for which he has to pay, and if he fails that test or does not turn up for it, then straightforward consequences occur.
The initiative has a clear aim and is simple in practice. It is inexpensive once the initial set-up costs are covered—it appears, from the information I have received, to be cost-neutral. The evidence shows that it can work; we have seen it work in the places in America where it has been in operation. For those reasons, I support and commend the amendment.
Lord Soley
My Lords, I support the amendment too, but I do not wish to repeat what has already been said in considerable detail about the effects of alcohol on the National Health Service, social services, prisons, police and the general population. I was chairman of the alcohol education centre many years ago at the Maudsley Hospital in south-east London. The problem of alcohol has not changed in its results since the 1970s; however, because of its increased availability in terms of price and outlets, it is now a much greater problem, and we see it on our streets. What I like about Amendment 242 in particular, as well as the other amendments, is that such a scheme can be piloted and evaluated. There have been many attempts to deal with the street problem of alcohol and of other aspects such as drugs, and the experiments do not always work. Evaluation and piloting are, in my judgment, a good idea.
I know that the noble Viscount, Lord Astor, is right about the drugs problem. We should not ignore that, but alcohol is different in one very important respect. It is a very powerful drug—as powerful as many others—but it is socially accepted and expected. That means that people use it without drugs; some use it with drugs but a large number of people use it without drugs and to excess.
My noble friends Lord Brooke and Lady Hayter made the point that it is a question of resources. That is the sort of thing we should build up over a period of time and why I have directed my remarks primarily to Amendment 242. When we see young people on television who are drunk in the street, you know that everyone sitting in front of their television sets is saying, “What do their parents think? What do those kids look like?”. At times like that I make myself think back to how I behaved in my adolescence. I would not like to go into this in too much detail, but—and this is relevant to what the noble Viscount said—I am afraid it is recognised that it is not just a mark of masculinity for men but for women too it is a mark of femininity, in a rather unusual way. That troubles me considerably, because although we all sit in front of our televisions and ask what their parents will say, the reality is that in many cases the parents will not say anything.
Lord Brooke of Sutton Mandeville
My Lords, I apologise to the Minister, the noble Baroness, Lady Finlay of Llandaff, and your Lordships’ House for being late. Having waited all day for licensing, it is very embarrassing to be late. I shall therefore be extremely brief.
I speak primarily to the proposed new clauses in Amendments 242 and 243. I was approached by the mayor’s office. I am not entirely clear why, but I am a veteran of the passage of the Licensing Act 2003 through your Lordships’ House, in which I participated heavily because for 24 years I had represented the swathe of the West End which ran from W2 in Bayswater to the far end of the EC postal district, an area in which a great deal of alcohol is consumed. I listened closely to the mayor’s representatives. I agreed my support. It would be wrong, given that I did not hear the start of the debate—although I came in on the speech of my noble namesake—for me to speak at length. However, on the basis of what the mayor’s representatives explained to me in their presentation, I am strongly in favour of an experiment along the lines of these two proposed new clauses.
I realise, rather bleakly, that this idea runs up against the risk of those initials, NIH: “Not invented here”. However, I hope that the Government will be sufficiently open-minded to think that it is worth an experiment. I hope very much that that takes place.
Lord Shipley
My Lords, I will say a word about Amendment 237A. It is one of the most important amendments that we have on the subject of licensing because of the principle it lays down.
Lord Stevenson of Balmacara
That is an amendment in my name, but I have agreed to degroup it. We will be coming to it shortly.
Lord Stevenson of Balmacara
While I am on my feet, I will make one or two points before the Minister responds. The noble Viscount, Lord Astor, made an interesting point. As a number of speakers have said, we will have to come back to this from time to time during debates on this portion of the Bill. I sense around the House an acceptance that, as a society, we have not really grasped the evidence before us that there is a need now for an overarching policy on all psychoactive substances, including drugs, tobacco and alcohol. If we do not grasp that opportunity now, we will all suffer. I accept what the noble Viscount said—that in this case there will be an element of drugs—but the greater problem is that we are not dealing with this in a holistic way.
Secondly, the figures that we have heard today about how alcohol influences our society are really terrible. They are growing and getting worse, and we must do something about it. The frustration I have also heard around the Chamber is that there has not been a scheme—or schemes—that we could get behind which would really have an impact. In that sense, the sobriety scheme seems an appropriate and attractive way to go forward. We will be supportive of that if the Minister is minded to take it further. It seems to give a triple win: it reduces alcohol-related crime and disease; it reduces the costs to our public services, particularly to those of the police and health; and, most importantly, it will help to shift our culture. For those reasons, taken together, one would want to support it.
Having said that, one of the arguments used to persuade your Lordships’ House was that the Mayor of London wants to introduce this as a pilot and would be giving his full support to it. Of course, that name, attached to any project, does not commend itself to this side of the House, but we will be gracious and not oppose it on this occasion.
Lord Harris of Haringey
My Lords, I also support this group of amendments. When Kit Malthouse, the deputy mayor of London—for those who are not aware, he is the putative deputy MOPC for London, so clearly a person of great relevance to these discussions—first raised this matter with me, I admit to being rather cynical about it; first, for the reasons my noble friend Lord Stevenson alluded to about this being just another mayoral gimmick, but also because I did not immediately see that the experience of South Dakota was necessarily relevant to London. However, having looked in detail at the proposals that have come forward from the mayor’s office, and the thought that has gone into them, I think that it is worth reflecting on the fact that nothing is lost by going down this road, having a trial in one or two London boroughs and seeing how it works. If it is useful, you can extend it and use it more widely. That is its basis.
Given the cynicism that sometimes surrounds mayoral initiatives in London, it was interesting to note that when the measure was presented to a cross-party grouping of colleagues in the Metropolitan Police Authority, after people had got over their initial cynicism they said, “This is an idea that is worth trying. Let’s see how it goes. It would certainly be worth supporting and we hope that the Government will support it as well”. Therefore, we have an entirely unanimous debate in this House.
Lord Shipley
My Lords, I wish to put on record the support of my noble friend Lord Palmer for this amendment as he is not able to be here. We agree that this would be a very useful trial to undertake.
Baroness Browning
My Lords, this has been a helpful and interesting debate. I fully acknowledge the picture that was painted by the noble Baroness, Lady Finlay, when she explained what happens in the NHS as a result of this problem. From the Home Office perspective, we are particularly concerned about crime associated with alcohol consumption and the cost to public services overall. I hope that the noble Lord, Lord Soley, will not mind when I say that I suspect that he and I are of a generation who might be described as baby boomers. Things are very different from when we were younger. That does not mean to say that I did not try alcohol. Like most people, I did and I still enjoy a drink. However, a change has occurred. There is a culture now in this country that it is acceptable to be drunk in public places. For several people to be drunk at one time is no longer regarded as shocking.
Under my new portfolio I have personal ministerial responsibility for both drug and alcohol policy. I want to try to bear down not just on what is seen as an adolescent problem but on a situation that is very different from that which pertained when I was young. Some people who hold down responsible jobs by day do not think that they have had a good time unless they get absolutely bladdered on a Friday and Saturday night. That is causing damage right across the piece. The noble Baroness mentioned the effect of that particularly on the NHS and it certainly affects crime figures as far as the Home Office is concerned. I had an emergency admittance to an A&E department at one o’clock in the morning on a Saturday and observed the chaos that was going on around me. A nurse told me that I was the only sober patient in that department. These are not unique occurrences; they happen regularly up and down the country on a Friday and Saturday night.
Baroness Browning
I hope that the noble Lord will forgive me, but I wish to make some progress. I support the underlying principles of this amendment, but I am going to have to resist its inclusion in this legislation. However, I do not rule out its possible inclusion in future legislation for the following reason. I believe that many elements of the scheme that has been suggested, which the mayor’s office wants to bring forward—the so-called sobriety scheme—can be achieved without primary legislation. The Home Office will want to work with the mayor’s office to trial a scheme, possibly using conditional cautions, for example, before bringing forward primary legislation. We could test the risks and costs of such a scheme while piloting something quite quickly. The difficulty with just transposing the South Dakota scheme to the UK is that we would run into a lot of difficulties, not least with the European Court of Human Rights, because the South Dakota scheme requires somebody to attend a prison when they are breathalysed; if they do not pass the breathalyser test, they are immediately imprisoned. I think that habeas corpus might come into that somewhere along the line. Imprisoning somebody without trial is not something that we tend to do in this country.
Having said that, we are clear that this measure is worth while and is something in which we want to be engaged. If, as has been mentioned around the Chamber, the trial in London can be taken forward—we can work out all the problems with it and try to overcome them—it will need primary legislation. I assure the House that the Home Office will work primarily with the Department of Health, which is taking the lead on an alcohol strategy that is due out later this year. We will work quickly and closely with that department to ensure that we gain experience from the trial. If it is successful, we will see how we can mainstream it around the country.
Baroness Finlay of Llandaff
I am most grateful to the Minister, whose sincerity I believe in. I have enjoyed working with her in the past and I hope that we can work on this together. I am also grateful to all noble Lords who spoke in support of the amendment and the other amendments in the group. I completely recognise the need for other strategies in conjunction with this. If we look just at the evidence from South Dakota, it is worth noting that it has an 80 per cent long-term sobriety rate. There is therefore something about using the unique teachable moments, which is what Professor Touquet at St Mary’s has been piloting and developing over the years in his A&E department, whereby you use the fact that the person has presented to get them to address all the problems that underlie alcohol-seeking behaviours.
I also completely agree that the culture change is shocking. I was recently in a student’s room, because she was ill. A bottle of vodka was on her window sill, as was the case in the rooms of all her housemates. The birthday card by her bed from her best friend said, “Looking forward to getting drunk together”. That is a complete change from the days when the Minister and I were students.
I regret that the Minister feels that this amendment cannot be made to the Bill, because I would have dearly loved to have piloted this measure in Wales. Given that I have not discussed the amendment with the Welsh Assembly Government and Ministers, I did not feel that it was appropriate to raise it earlier in the debate, but I hope that we will be able to work on this. I have a glimmer of hope that we may be able to come back to something later during the passage of the Bill. I therefore beg leave to withdraw the amendment at this stage.
Lord Ramsbotham
“(aa) after paragraph (a) insert—“(aa) the Chief Constable of the British Transport Police Force, for any premises situated in the area in which that Force has jurisdiction,”,”
Lord Ramsbotham
My Lords, I speak on behalf of the noble Lord, Lord Bradshaw, who is recovering from an operation. The noble Lord, Lord Faulkner, also cannot be here. I will not detain your Lordships. The three amendments in the group merely continue what was proposed in Amendment 231A—to include the British Transport Police in arrangements from which it has previously been excluded and particularly to recognise its responsibility in areas that previously have been covered by other police forces. The Minister has already commented on the matter and I merely ask that the British Transport Police be added to those clauses. I beg to move.
Lord De Mauley
The amendments would, as the noble Lord, Lord Ramsbotham, said, put the British Transport Police on a par, in certain key respects, with the 43 territorial police forces in England and Wales for the purposes of the Licensing Act 2003.
On Amendment 237ZA, which would add the BTP as a responsible authority, the Licensing Act is administered by local licensing authorities, which adopt licensing strategies and take decisions that are appropriate for their respective local areas. The law requires that the responsible authorities listed in the Act are notified automatically of licensing applications, reviews and other licensing decisions that licensing authorities have to make, to enable them to make representations in relation to particular premises on the promotion of the statutory licensing objectives in the local area.
For that reason, the chief officer of police for the geographic area is a responsible authority under the Act and can make representations to the licensing authorities in respect of any licence application, variation or review. Licence applicants and holders are required to submit their applications to all responsible authorities. The Government are unwilling to add to the bureaucratic burden on businesses by adding responsible authorities unnecessarily.
The BTP is a non-geographic force with a specific, non-regional jurisdiction. It covers the transport network as a whole. It certainly has expert knowledge on alcohol-related late-night crime and disorder around transport hubs and on transport, but we believe that alcohol-related problems around transport hubs and on public transport are part of the overall picture of alcohol-related crime in an area and it is important that the response to them is properly co-ordinated.
We believe that the chief officer of police for the geographic area is the appropriate person to take an overview of the situation in that area and to channel any concerns about licensed premises, including those from the BTP, to the local authority. We are confident that the BTP has effective lines of communication with the geographic constabularies and will continue to use them to raise any issues that it has relating to licensing.
I point out that one of the important consequences of the removal of the test of vicinity from the Licensing Act 2003, which the Bill proposes and which we will debate shortly, is that it will be open for anyone, including the BTP, to make representations to the licensing authority in their own right, regardless of where they live or operate, about licence applications and variations, provided that those representations are about the likely effect of the grant or variation of the licence on the promotion of licensing objectives.
Amendment 240BA would make the BTP a relevant person for the purposes of allowing it to object to temporary events notices. Residents’ associations told us that, after crime, noise was their greatest concern in relation to temporary events. We believe that extending the right to object to the environmental health authority, and allowing it and the police to object on grounds of all four licensing objectives, should provide adequate protection for residents while minimising unnecessary bureaucracy. Again, I am confident that, if the BTP has concerns about late-night crime and disorder concerning temporary events, the mechanisms already exist to channel them through established liaison procedures with territorial constabularies.
On Amendment 241MA, the main purpose of the levy is that licensed premises that sell alcohol late at night can contribute towards the resulting costs to the police. Although I recognise that the BTP must deal with late-night crime and disorder, which is often fuelled by alcohol consumption, the fact is that the geographic constabularies bear the overwhelming burden of these costs.
However, the levy clauses will allow licensing authorities to retain up to 30 per cent of the net revenue to fund services late at night, such as taxi marshals. Licensing authorities could decide, at their discretion, to give some of their retained funds to the BTP. Furthermore, we have retained the power to amend the proportions and beneficiaries of the levy in regulations, should it be effective to hand some of the funds to bodies such as the BTP. The Government have the greatest respect for the British Transport Police, which carries out a difficult task tackling crime on our transport network. However, for the reasons that I have given, I ask the noble Lord not to press his amendment.
Lord Ramsbotham
My Lords, I am grateful to the Minister for that detailed reply, which has given us a great deal to think about. Having been asked to take up the cause of the British Transport Police, I very much hope that before Report stage it may be possible for those of us who are interested in the BTP to have a discussion about these matters to decide whether they are worth bringing forward again on Report. In that anticipation, I beg leave to withdraw the amendment.
“General duties of licensing authorities
(1) The Licensing Act 2003 is amended as follows.
(2) In section 4(2), after paragraph (d) insert—
“(e) protecting and improving public health”.”
Lord Stevenson of Balmacara
This amendment seeks to go back to the general duties of licensing authorities to ask why we do not add, to the specific responsibilities, the improvement of public health. Given what we have heard so far, that might be narrowed down further to public health in relation to alcohol abuse. As the House will have picked up from my earlier remarks, I take a wider view on this, so I think I will leave the wording as it is and address my remarks to that, although I will deal primarily with alcohol, as that has been the main topic of our discussion so far.
We have already heard from many noble Lords about the problems caused by alcohol. Alcohol has been part of our culture for centuries and many people use it sensibly, although its misuse has become a serious and worsening public health problem in the United Kingdom. Misuse of alcohol, whether as chronically heavy drinking, binge drinking or even moderate drinking in inappropriate circumstances, not only poses a threat to the health and well-being of the drinker but also to family, friends, communities and wider society, through such problems as crime, anti-social behaviour and loss of productivity. It is also directly linked to a range of health issues such as high blood pressure, mental ill health, accidental injury, violence, liver disease and sexually transmitted infections. Alcohol is potentially an addictive, psycho-active substance; it is rapidly absorbed into the blood-stream and its effects on brain function, such as slow reaction times and loss of inhibition, are felt very quickly.
Alcohol misuse can widen health inequalities and worsen problems of crime, anti-social behaviour and poverty, yet youth culture—through music, fashion and the media—often links alcohol with having a good time. The alcohol industry continues to find ways of promoting alcohol as a glamorous, exciting product to the youth market. Despite codes of practice prohibiting its association with social or sexual success, the industry frequently sponsors events that will appeal to young people, such as sports and live music.
A considerable body of evidence shows that the most effective alcohol policies are those that combine measures addressed at the whole population, such as increasing prices or decreasing availability, as well as targeting groups who are vulnerable or disadvantaged, where the risk of harm may be greatest. A reduction in alcohol consumption at population level is needed, together with focused programmes aimed at specific risk groups such as young binge drinkers and older baby boomers, as we have already heard.
National policies need to support local strategies which will develop and implement a multisectoral approach to both preventing alcohol misuse and dealing with its consequences. This amendment underpins what I have said, as by adding,
“protecting and improving public health”,
with particular reference to alcohol, we would allow local agencies, local authorities and local licensing bodies to bring into play, in a much more focused way, their concern about the impact of any decisions that they take in respect of public health, which would have an impact on costs to the authority. For that reason I beg to move the amendment.
However, I end by saying that we support Amendment 244, as that is a very good example of the way in which a focus on public health might help the licensing authority to make decisions. If a licensing authority has, on a regular basis, to consider the overall impact of the number of licensed premises that it has allowed to operate, and it does so in the context of the overall health damage being done, we might see it taking somewhat different decisions. Therefore, we would support that amendment.
Baroness Finlay of Llandaff
My Lords, I shall speak to Amendment 244, which unashamedly originates in Wales. Its aim is to make sure that “Licensed Premises Cumulative Impact (saturation) Policies” for local authorities have teeth and apply to off-licence premises, because at the moment they do not. The problem is the rise in alcohol consumption, in particular in our city centres, to which supermarkets have greatly contributed, with cheap alcohol often being a loss leader with price promotions. Young people buy alcohol to preload before going out, so they get intoxicated even before the beginning of the evening. They then tank up again on more alcohol from these outlets, because it is far cheaper than buying it on licensed premises. The problem is what to do in our city centres. The cumulative impact saturation policies do not have statutory status; they are only guidelines, so they are not enforceable and they are easily overturned by a legal challenge from retailers. I spoke about this at Second Reading and will not go through the argument again. However, the size of the problem in city centres warrants being addressed briefly.
We know that 60 per cent of liver disease is caused by alcohol abuse. Thirty years ago, that was seen in chronic alcoholics. Now it is seen in young drinkers who kill themselves with acute pancreatitis and liver failure. Individual human tragedies are known to everyone in the NHS: the student deformed for life, the student who falls under a train, the child burnt because somebody has got intoxicated and set fire to their home, or the 14 year-old who gets drunk and pregnant at a party. We have seen them all, and there is an increasing catalogue of these disasters. The other problem is the litter and environmental damage caused by alcohol misuse. Let us not forget that Damilola Taylor was killed not with a knife but with a supermarket lager bottle that had been left in the street.
In the UK, average consumption is now a staggering 9.7 litres of neat ethanol for every man aged 45 to 64. Sadly, women are rapidly catching up, with a 30 per cent rise in the incidence of heavy drinking in the past decade. In Cardiff city centre recently, a study asked people to be voluntarily breathalysed. One in three of the men and one in six of the women had damaging blood alcohol levels. The high-risk drinking patterns are concentrated particularly in ex-industrial heartlands such as the north-east, Humber and Yorkshire, and my own home, south Wales. Alcohol misuse accounted for 1,000 deaths in Wales in 2009, and the harm costs £1 billion annually—equivalent to £770 per Welsh household. Our trends in the UK are going in the opposite direction to those of many other countries. We have a rising incidence of liver disease deaths, but in France and Italy it is falling. Consumption by teenagers in England has overtaken that of teenagers in Spain and Italy.
The amendment would introduce a provision that “Licensed Premises Cumulative Impact (saturation) Policies” should include supermarkets and other off-licence premises. It will make it clear that they are included, with the result that managers of supermarkets and other off-licence premises will not be able to argue, as they have to date, that they are not included. It will also remove the current discrimination against licensed premises such as pubs produced by the current lack of clarity. Giving the impact policy statutory status would also allow revision and monitoring of the decisions taken.
The final part of the amendment includes a provision to ban the sale of alcohol in petrol station outlets. I have had representations about this and I recognise that in these outlets, drink is often purchased to consume later, and there is no evidence of a direct link between alcohol bought on those premises and drink-driving—although it appears to give a slightly inconsistent public message in relation to driving and alcohol. However, selling alcohol sometimes makes these outlets viable. I accept that this amendment is not perfect, and it may well be that it warrants refining in relation to that last part.
However, the other parts are important because it will finally allow local authorities to take decisions, empower the voice of people at a local level and make sure that those decisions are not challenged, as happened with Sainsbury’s in Cardiff by very highly paid barristers coming down from London with their managers and effectively driving a coach and horses through the guidance because it could not be enforced as it did not have statutory standing. It would also demonstrate consistency in those areas that are particularly bad hot spots of alcohol consumption, violence and crime, which are known to the local authorities in that area and would avoid inappropriately penalising rural areas where the sale of alcohol has to be managed in a different way. I commend the amendment to the House.
Baroness Hamwee
My Lords, my noble friend will speak to the substance of the amendments, but noble Lords may have noticed a minor flurry on these Benches when I went out to check whether there had been a reissue of the groupings and to see if I could find out just what was happening. We were not aware of the degrouping—that became clear before—nor of the grouping of the amendment to which the noble Baroness has just spoken with this amendment. I simply make a plea that if there are any further changes to the groupings in the list we are working to, noble Lords will use the informal arrangements of the House to make sure that we all end up speaking to the same group. That was in no way directed at the noble Baroness, who may have thought that this had all been sorted.
Baroness Finlay of Llandaff
My Lords, I apologise to the Committee. I was part of the discussions, but I did not double-check that everybody knew. I apologise to the Benches opposite.
Lord Shipley
I shall speak first to Amendment 237A. It is an extremely important amendment because it defines not just the responsibility of a local council—here I declare an interest as a member of Newcastle City Council and as chair of the regional advisory group for public health in the north-east of England. The amendment builds in to the general duty of a licensing authority, which has a quasi-judicial role, the responsibility to protect and, crucially, to improve public health. Through other legislation, local authorities are being given enhanced responsibilities for public health. The responsibilities relate to a range of things around smoking, obesity, road safety and so on, but given some of the evidence we have heard this afternoon, not least the fact that the latest figures seem to show that at the weekends 50 per cent of hospital admissions are alcohol related, the cost to the National Health Service and the economy is very great, and the responsibility for addressing that problem has to lie with some democratic structure. In general terms, it lies with the local authority but critically, because a licensing authority is quasi-judicial, it is important to have a general duty applying to that licensing authority to protect and improve public health. I think this very clear statement will make a difference in the way in which licensing authorities operate in future.
I referred to regional advisory groups on public health. One of the consequences of the abolition of government offices in England is that a range of regional structures are no longer in existence or are about to go out of existence. One of the things we are having to address at the moment is how issues of public health can be discussed and how research evaluation and good practice can be spread in a context bigger than a single local authority.
I hope that the Government might look at ways in which we can develop this general duty to protect and improve public health so that local authorities are required to work together more closely on that agenda. Reducing the consumption of alcohol, reducing the incidence of smoking, improving road safety figures and so on all apply to more than just one local authority in a given part of the country. However, this is a very important amendment and its impact should not be underestimated.
Viscount Astor
My Lords, in commenting on the amendment moved by the noble Lord, Lord Stevenson, I should perhaps explain to your Lordships my interest in this matter. In 1997, when an electorate sent me from this side of the House to the other side of the House, I founded a late-night bars business. I do not have to declare an interest any more because we sold it two years ago. It was floated on the Stock Exchange. It was a very responsible operator and I gained a certain knowledge of the industry. On the last Saturday night we operated, we had over 30,000 patrons in our various bars round the country, in Wales and Scotland as well as England. So I had a little interest in the business. We saw ourselves as encouraging drinking, but not to excess, and we did not encourage drunkenness. Indeed, the Prime Minister was on our board, so, as you can see, we were enormously respectable.
However, our biggest problem was not what happened inside our bars but what happened outside, for numerous reasons. First, supermarkets were selling tins of lager for 50p when we were selling a pint of lager for up to £5. The problem was that people arrived having had too much to drink before going out. The Government have made some statements about minimum pricing. It will be interesting to see whether my noble friend the Minister can say any more on that.
The other problem, I have to say, was drugs. Someone would take drugs before they came in, with the result that one or two drinks magnified the effect to the extent that they could have been drinking all night. That was the issue. The ones that ended up on the street might have looked drunk but the reason behind it was a combination of drink and drugs. That is important, and that is why in the interest of public health you must bring in the whole thing; you cannot lose one and not the other. That is why I think the amendment is extremely interesting.
I would say in defence of bars that in the cities we operated in we had a very good relationship with the local authorities and with the police. We found that if there were no facilities for young people in cities, the problems were even worse because they had nowhere to go. They would go to the supermarket or the garage, as the noble Baroness, Lady Finlay, would say, buy alcohol and end up being on the street, or wherever, causing a much greater problem than if it was properly regulated.
I do hope that your Lordships will think that drinking is not bad if it is properly regulated and properly organised. I recognise that my grandmother, who was the first woman to sit in another place, campaigned for 30 years against drink being sold. However, on her 80th birthday we persuaded her that Dubonnet was non-alcoholic and she drank away. I hope in that spirit your Lordships will see that drink in moderation can be quite a good thing.
Lord Soley
My Lords, I, too, share the view that alcohol is not a bad thing and that done responsibly it is good. I also do not take the view, although I know the noble Viscount, Lord Astor, did not touch on it, that advertising is not the major problem it is sometimes made out to be. It is more complex than that.
I support these amendments particularly because of proposed subsection (2) in Amendment 244, which is quite an interesting idea as it would enable a local authority to focus on a growing problem in that area. I obviously do not want to rehearse the previous debate. I simply say to the Minister, who has become even more of a friend of mine now that she thinks I am a baby boomer, that in fact I am so pre-baby boomer that I am pre-war. But I like the idea, so I am with her on that.
However, I take issue with the view sometimes taken that things are fundamentally different now. The key difference, with which we have so much difficulty coping and which I am not sure can be dealt with fully in this Bill, is the availability of drink as a result of price to income and the availability of outlets. As regards all the things that people worry about, I have to say that, although I am not proud of it, in the 1950s we boasted about how much we had drunk the night before and went to work with hangovers. I would say to the noble Baroness, Lady Finlay, that one of the differences is that we would hide the drink and not leave it on the windowsill.
The role of women is fundamentally different. In the 1950s, their role was to get you home again. People would boast about how quickly they could drink. All those things were happening. The crucial difference is that you did not have enough income to do it regularly, so Friday and Saturday nights were bad. The other factor was the outlets. As the noble Viscount, Lord Astor, said, you can go to the supermarket. In the 1950s, you would drink in the bars. As the pub came to closing time, you would say, “We have got to buy some drink”. There were not as many off licences around as there are now. You could not buy it over the bar in most cases, so the barman would tell you that you have to go to the off licence. That usually meant going out of the pub into a pokey little room on the side, which would have enough room for only two or three people, where you could buy drink at greater cost.
The outlets have exploded and the difficulty for society to face is that, although we like alcohol—I include myself in that—and most of us can enjoy it responsibly, there are two big problems. A minority cannot drink responsibly and there is the very real problem, as we indicated in the previous debate, of young people trying to learn how to handle drink responsibly. There is not an easy answer to that. Ultimately, this problem is about ease of availability in terms of price to income and the outlets. Under subsection (2) of the proposed new clause in Amendment 244, at least in those areas suffering most—I would include from my past areas in east London—you could focus on some of the pubs and areas causing problems.
Lord Clement-Jones
My Lords, as a baby boomer myself I will not add to the confessionals this afternoon, but I would say to the noble Baroness, Lady Finlay, that she was clearly a particularly well-behaved student. My recollections—though I think the expression is that if you remember the 1960s you weren’t there—were pretty similar. Despite not having known in advance that they were being grouped, I can see why Amendments 237A and 244 have been grouped. But the devil is in the detail and I prefer Amendment 244, with one rather large and glaring exception to which the noble Baroness, Lady Finlay, referred. Notwithstanding the enthusiasm of my noble friend Lord Shipley, the drafting of a public health duty for a licensing authority is fraught with difficulties. It could cover a huge range of issues, not just issues relating to local A&E and so on but to pricing, siting and marketing of alcoholic products.
Lord Brooke of Alverthorpe
Is the noble Lord aware that the Scottish Parliament has already drafted one?
Lord Clement-Jones
I am extremely aware of that, and for that reason I do not think that it is necessarily a practical way forward. People are drawing on that experience and also thinking that that is not the way forward. I much prefer Amendment 244, which is much more specific. Although I am not a lawyer who travels to south Wales and appears before licensing authorities—I may have been born there but I do not travel there for that purpose—you have to have something which is capable of proper interpretation and clarity. I do not believe that the broad public health duty implied in the first amendment is really the way forward. The second proposed new clause, however, is much clearer.
I want briefly to address the third part of this because I do not understand why subsection (3) is included in the new clause set out in Amendment 244. It is rather extraneous to the general message. I certainly sympathise with bodies like the Association of Convenience Stores, which says that there is no evidence that licensed forecourts are less responsible than any other type of premise. They say also that changes in the market mean that it is vital that a store has alcohol as part of its convenience offer. As the noble Baroness, Lady Finlay, said, if they did not stock it, they would close. The association says that there is adequate provision in this area under Section 176 of the Licensing Act 2003, which already requires forecourts applying for licences to demonstrate that their primary use is not as a petrol forecourt. If petrol sales outweigh other sales, they will not be granted a licence. I do not see how subsection (3) can form a legitimate part of the clause. If something was brought back in a better form, it would definitely be more supportable.
Lord Brooke of Alverthorpe
My Lords, I am pleased to have the opportunity to support Amendment 237A and Amendment 244, tabled by the noble Baroness, Lady Finlay of Llandaff. I will not repeat all the problems we face with regard to alcohol because we are all fully apprised of them. We know also that there is no simple solution, and in that context I look forward to the Government’s alcohol strategy, which I believe is due to be published later in the year. I hope sincerely that it is helpful and that it is not just warm words and little action, which can often happen with strategy papers. But the Government, like my noble friend Lord Soley, have recognised that two immediate and fundamental problems need to be addressed. The first, without any question whatever, is the price of alcohol, and the second is accessibility. We can all put on our rose-coloured spectacles and remember the days when pubs opened at 11 or 12 in the morning, closed at three o’clock, and reopened from five in the evening until 11 at night. Off-licences kept similar hours. In many places in Wales, pubs closed all day on Sunday. There was not the same degree of accessibility.
We are now in an entirely different world, one that since the adoption of the Licensing Act 2003 and subsequent amendments made by the former Government, has seen an escalation in the granting of licences on a wide scale right across the board. I am thinking particularly of off-licences, which have been transformed out of all recognition. We now have access to alcohol in many places, 24 hours a day, seven days a week and 52 weeks of the year. Very few countries in the world are as free as we are, and we have to reflect on whether we have done the right thing.
I commend the Government, as I did at Second Reading, on the steps they are taking to try to rebalance the rights of those who are seeking to get licences and the needs of the community. Over the past decade, problems have increasingly arisen through the use of alcohol. Even though I sit on these Benches, I have no hesitation in saying that the Government are moving the right way. On pricing, there must be a question mark over the extent to which the Government have been bold. I shall leave it at that, but personally, I do not think that they have gone far enough. As time passes, others may come to the same view. On accessibility, again the Government are tightening up the rules related to the granting of licences, but from what I have seen and heard so far, I do not think that they are likely to move fast enough and far enough to deal with the problem.
I shall be a little provocative and say that I am pleased that the Government have revised the fee structure, but I would like to know why they have limited the reimbursement of fees to local authorities simply to the administrative expenditure. Originally we had the use of a licence for a particular purpose, which was limiting. Why do local authorities now not have the freedom to set the licence at a level which is appropriate to the needs of their communities, particularly the health needs of a community when facing difficult problems related to alcohol? I would be grateful for a response. I know that the question is not proper to the amendment, but it is the only place in which I think I can pose it. If we believe in localism, and I have come across substantial support for it in many areas, local licensing authorities should have the freedom to set fees for licences at a level necessary to meet the needs of the community. We increasingly see that health needs are not being met within the context of the licensing regime. Although the new clause proposed in Amendment 237A is general, I strongly support the view that it should be added to the four existing objectives which were drawn up in 2003.
There has been saturation granting of licences in some places. I live in an area of Brighton—I have talked about it previously—where within 100 yards of each other you have two supermarkets and a post office which is no longer a post office for all intents and purposes because it is piled high with alcohol. I have taken photographs of it. Next to it, you have an off-licence as well. The post office has been granted permission to open from 6 o’clock in the morning to 11 at night. The area is immediately adjacent to the most underprivileged area in Brighton—more people are unemployed there and there is more illness there, much of it alcohol and drug-related, than in any other part of the city—yet the post office is selling alcohol from six in the morning to 11 at night.
We now have 11,000 post offices left which are guaranteed to stay in business. I return to the Minister’s point about our changing culture. We shall probably see 11,000 post offices converted over the coming two or three years so that they become nearer to off-licences than post offices. That will change the culture in those areas where they exist. It is happening not just in post offices. Greengrocers are now turning over to selling alcohol in some places. A halt needs to be called. Requests have been made to the chief medical officer in Brighton to do that. The only way, as far as I can see, to tackle this is by having a close look at what is proposed in the amendment. The idea has been adopted in Scotland; we wait with interest to see how they address it. They are looking particularly at saturation, where too many licences have been granted in certain locations, and are going to try to call a halt to that. We should do the same in the rest of the UK.
The one illness that was not mentioned when we talked about the consequences of too much alcohol was diabetes. We have an epidemic of diabetes, much of it related to alcohol. A bottle or can of alcohol may show the units, but what does that convey? It does not tell you how many calories you will consume in that can or bottle of beer, or indeed within a bottle of whisky—God only knows how many calories there are in that. If the Government are to look at this in the longer term, they will have to start addressing some of those issues, because they go much broader than the rather narrow issues that we have been talking about.
I share the view of the noble Lord, Lord Shipley, that the amendment is very challenging and interesting. It is a test for the Government. They gave quite a sympathetic hearing to it when it was dealt with in the Commons. I felt that my side, the Labour side, perhaps for historical reasons, was a little bit soft in its handling of it, so I was pleased to hear the way in which my noble friend on the Front Bench tackled it today. If we are not going to make great progress with it, I hope that we will stiffen up our views before we reach Report on where we want policy on alcohol to go in the future. There is a lot of pressure in this House for change and legislation on drugs. I wish that as much energy was devoted to addressing the really big problem that we have: alcohol. What chance is there of regulating drugs if we cannot effectively regulate alcohol in a way that is in the best interests of the health of our community?
I commend these amendments to the Government. I give notice that it is time for some of us in Parliament to stand up more forcefully than we have in the past in taking on the mighty drinks industry. Given all the wealth that it has behind it, it is David against Goliath in many respects. I hope that I can find a David on the Government’s side.
The Earl of Listowel
My Lords, I have been shocked in the past when this issue has arisen and we have looked at the close connection of alcohol abuse and binge drinking with domestic violence and the abuse of children. In listening to the debate I am reminded of a young man who told me that he made sure that he was at home when his father came back from the pub because he wanted to stand between his father and his mother when his father started hitting her or tried to hit her. I urge the Government to be as robust as possible in their strategy. I hope that they are listening carefully to this debate.
Lord De Mauley
My Lords, I apologise to my noble friends and other noble Lords who were unaware of the regrouping of these amendments.
The Government agree that there is significant merit in making health a material consideration in the Licensing Act 2003 and I thank noble Lords for raising these important issues. Indeed, we have already committed to making health a licensing objective and will take this forward in the near future. I take the point made by my noble friend Lord Clement-Jones, and at this stage it is essential that full consideration is given to the potential impact to ensure that any changes are considered within the wider health context. We are currently in discussions with the Department of Health with a view to developing policy options—indeed we are in the process of testing these options with lawyers. However, I ask noble Lords to accept that we require more time to finalise them.
As I say, we have committed to including health as a licensing objective in the Department of Health’s alcohol strategy, which, as the noble Lord, Lord Brooke of Alverthorpe, said, is due for publication later this year.
I say in response to my noble friend Lord Astor that we are keen to move forward on implementing the ban on below-cost sales and that it will be in place later this year. Banning the sale of alcohol below the floor price of duty plus VAT is an important first step which can be easily implemented while tackling the worst instances of deep discounting.
The noble Lord, Lord Brooke, raised the issue of fees. We will be dealing with that in considerable detail when we get to the group of amendments that starts with Amendment 240Z and deals with Clauses 121 and 122.
On Amendment 244 in the name of the noble Baroness, Lady Finlay, cumulative impact policies are an existing tool which licensing authorities have available to limit the availability of alcohol in their local areas. For example, where a significant number of licensed bars in a specific area are causing problems, the licensing authority is able to consider a range of evidence relating to crime and disorder or public nuisance and identify specific areas that are causing these problems. It can then introduce a cumulative impact policy, of which it must publish details in its statements of licensing policy. Once in place, any evidence that new premises in respect of which a licence is applied for would have a negative effect on cumulative impact raises a rebuttable presumption that the application will be refused.
Cumulative impact policies are already in place and have been effective in limiting the availability of alcohol in problem areas. The noble Baroness, Lady Finlay, wants them to be more effective. However, it is worth saying that at present 134 cumulative impact policies have been successfully applied by 83 of the 350 licensing authorities.
A critical problem with the current situation is that the licensing authority can apply its cumulative impact policy only when it receives a relevant representation regarding the cumulative impact. We are taking forward a proposal in the Bill to make licensing authorities responsible authorities under the Licensing Act. This means that a licensing authority will be able to apply its cumulative impact policy without first having to receive a representation from a third party regarding the cumulative impact. This will ensure that licensing authorities have more power and flexibility to limit the availability of alcohol in their local areas. We are concerned that this amendment would increase the burden that licensing authorities already face when introducing a cumulative impact policy. For these reasons, I hope that I can persuade noble Lords not to press their amendments.
Baroness Finlay of Llandaff
Before the Minister sits down, could he provide me with an assurance that the change that the Government are introducing will cover off-licence as well as on-licence, so that the specific problem of supermarket sales will be covered and barristers from the supermarket chains will no longer be able to say, “But it was only guidance”?
Lord De Mauley
My Lords, I am afraid that I do not have the answer to the noble Baroness’s question but I assure her that I will write to her with it.
Lord Stevenson of Balmacara
My Lords, I am very grateful to the Minister for his comments in what has been a very interesting debate. It did indeed verge on the confessional, but I quite like that—I was a bit sad that the noble Viscount, Lord Astor, did not share with us what happened when his grandmother took the Dubonnet. Was it only one? No, he says. That was a great success, but probably not in the spirit of the debate that we have just been having.
I also would like to take exception—although not in a serious way—with my noble friend Lord Soley. As the Minister has said, I detect in the younger generation a change in the way in which alcohol is consumed. It is not so much the volume they are drinking, which is probably constrained by physical reasons; it is that they are not drinking the wines and beers of older years. They are drinking spirits—drinking before they go out, when they go out and when they come back. They may indeed be mixing it with other stuff although I do not know about that. However, I think that the change in consumption pattern is something that we have to be very careful about. Of course, if you drink alcohol at a more concentrated level, you are going to have double or triple the effect on every other part of your body. I am very concerned about that. We need to take it into account as we look at the relevant policies.
Nevertheless, what the other side has said is good in that the public health interests are being taken into account. I am grateful to the noble Lord for saying that. We look forward to hearing more about price, which is an interesting component of the overall policy, and perhaps in later debates we can get more detail on that. The idea that licensing authorities, or more of them, could be made responsible authorities so that the cumulative effects can be taken into account is a very important step forward again down this way. Taken together, if we genuinely believe that steps must be taken to try to address where we are in terms of alcohol abuse, then the discussions that we have had today will have been an important step along the road. We should work together, if we can, to take this forward. On that basis, I will withdraw Amendment 237A.
Lord Clement-Jones
“(a) a person who lives sufficiently close to the premises to be likely to be affected by the authorised activities,(b) a person who has a business interest that might be affected by the authorised activities,(c) anyone representing persons who satisfy the requirements of paragraph (a) or (b),”.”
Lord Clement-Jones
In moving Amendment 237B, I will also speak to whether Clause 106 should stand part and Amendment 239A. As Clauses 106 and 108 stand, the vicinity test for making representations will be removed and any person will be able to object, broadly, to a live music event if they are located in the licensing authority area. A person will no longer be required to be an interested party in order to object. However, there is no doubt that removing the vicinity test could entirely open up the licensing process to an excessive number of people making representations who have no ties to the local area—for example, national campaign groups running a postcard campaign. This could lead to a significant increase in the number of appeals and reviews, increasing the bureaucracy and cost to local authorities and businesses.
As currently drafted, the Bill, while removing the vicinity test, introduces a different constraint in that it restricts participation to those living and based in the local authority area concerned. This could mean that a resident living on the other side of the street could not make representations if they were in a different local authority area. The current state of the clauses in the Bill is far from satisfactory. These amendments therefore seek to define who can make a representation more robustly, restricting it to either someone living sufficiently close to the premises that will be affected by its activities or to an affected business. This will ensure that only those with a local interest are able to intervene. It will ensure, however, that anyone directly affected by licensed premises will be able to make representations, even if they do not live in the local authority area where the premises are situated. This will improve the position of local communities with legitimate concerns about licensed premises and ensure that they are able to have their say.
Clearly, this is a compromise suggestion. It is not clear that the Government have entirely demonstrated the mischief that must be cured by Clauses 106 and 108. This is, in a sense, the clause stand part discussion, Clause 106 being on premises licences and Clause 108 on club premises certificates. As was clear from the consultation process, this proposed removal received a majority negative response. Respondents of all kinds suggested that this proposal could lead to a rise in vexatious complaints and give disproportionate influence to non-local individuals. I believe that of all the consultation proposals, that one received the greatest negative response. The onus of proof is really on the Government to demonstrate that Clauses 106 and 108 should be there in the first place. Thereafter, I hope that they will accept the necessity to amend them. If they demonstrate that, they will demonstrate that they support the amendments that I have put forward.
Viscount Astor
My Lords, I have added my name to the amendment moved by the noble Lord, Lord Clement-Jones, because I am concerned about the drafting, particularly in Clause 106(3)(a), which allows anyone who is “involved in a business”. However, that might be totally unrelated to pubs, clubs, bars or anything like that. What is important is to allow people who live in the local area to have a view. It should not be restricted to local authorities because if you are dealing with the city of London, local authority division might be down the middle of a street. People can live 100 yards away but be in a different local authority. I commend what the Government are trying to do but I am concerned about the wording and how it will be interpreted.
I remind your Lordships that we are trying to keep pubs open in rural areas and, indeed, all around the country. We should not allow interest groups who have no interest and live nowhere near that particular pub to have an influence on whether it should get a licence. It is also important to remind your Lordships that, 20 years ago, 70 per cent of the drinks sold in this country were sold in pubs, bars and clubs with 30 per cent being sold in retails outlets. The reverse is now the case: only 30 per cent is sold inside a pub, club or bar and 70 per cent is sold in supermarkets and other outlets. If we are concerned about excessive drinking, we should make sure that we do not blame those who have only 30 per cent of the market. We must look much more closely at those who provide 70 per cent of the alcohol in this country.
Lord Shipley
My Lords, I have two comments to make on Amendment 237B and the related Amendments 238 and 239, in the name of my noble friend Lord Palmer of Childs Hill. There would be benefit in getting some clarification of what some definitions, such as “sufficiently close” and “adjoining area”, actually mean. The Bill would be improved if we got that. First, on Amendment 237B, there is a problem in removing the power of an interested party to make representations. As an example, if the amendment was approved, it would mean that a residents’ association could not make an objection in its own right. It would have to be on behalf a person with a direct interest who lives in the area or a person who has a direct business interest in that area. Amendment 237B is too tight in how it restricts those who can comment.
The second problem relates to the issue that my noble friend Lord Palmer is trying to address in Amendments 238 and 239. At present, those who wish to object can do so only if they live in the licensing area. But in some urban areas, of course, a main road can divide a licensing area from the area that would be impacted upon. That problem would be addressed by Amendment 237B because the definition of “sufficiently close” could mean across the road. A good example of this is Edgware Road, where one side comes under the London Borough of Brent and the other side comes under the London Borough of Barnet. If the application is in one borough, those who can object must be residents of that licensing area as things stand. Through his amendments, my noble friend Lord Palmer is saying that it is important that those who are living sufficiently close to the premises can object even though they may be outside the licensing area of the application.
Lord Brooke of Sutton Mandeville
My Lords, I am happy that I gave way to my noble friend Lord Shipley because what I shall say follows precisely what he was saying. My noble friend Lord Clement-Jones will recall the debates which we had on the Licensing Bill in 2003, particularly about inner London and the alliance I formed on that Bill with our mutual noble friend Lord Avebury. He is sorry that he is not here today because of a conflicting engagement.
There is a balance, in fact, to the amendments which have been put down by my noble friends Lord Clement-Jones and Lord Astor. My noble friend Lord Shipley referred to residents’ associations, but there is a larger problem even than that. It is a very time-consuming business to be involved in following licensing applications; it is difficult to find people who have the time to carry out that sort of activity and make oral representations as well. Therefore, the greater flexibility in terms of the people who can come and do that is important, and it goes back to the residents who live there. I am pleased by the amendments which the Government have made and I hope that the Minister will resist the precise amendments which my noble friends have tabled.
Lord Stevenson of Balmacara
This is an interesting debate which seems to be narrowing down to how one defines what the objectives are. Speakers in the debate seem to be relatively united on one point, which is that we want to see a connection between an objection to a licence and a reason for that objection. If that reason is to be geographic, it ought to be linked in some way to the physical presence of the person who is making the objection and the premise and should not be subject to the vicissitudes of random boundaries. That is the sense in which the amendment has been tabled. Whether the wording is right or not perhaps needs further investigation. However, we certainly do not want people who live in Scotland, say, objecting to licences applied for in the Edgware Road, because that clearly would be ridiculous. As the Bill is drafted, however, that might be possible. I will be grateful if the Minister will make it clear what the vicinity test really means.
There are other reasons for wanting to object to a licence. The reference to live music and the like puts that into focus. We use our premises in many ways, not just for social recreation but also to enjoy other things. Objections must be appropriate and relevant to the process of licensing that encompasses them. Simple dislike of what goes on in a place should not be sufficient to allow a representation to be made. We would be concerned if the Bill in any way opened that door.
The difficulties faced by small premises such as bars and places where live music is performed are very great; the economic circumstances they face are very severe and we should not do anything to diminish the chance they have of making good and proper use of their premises and making sure that people enjoy what they offer.
While we are speaking about objections, I have received representations—as many other noble Lords may have—saying that many licensing authorities approach licensing in a way that encourages objections, rather than by receiving general representations on the licensed premises concerned. In other words, if you go to a website it tells you how to object but not how to represent support for what is going on in those premises. I wonder if the Minister, in responding, could touch on that point as well.
Lord De Mauley
My Lords, the Licensing Act 2003, as currently drafted, allows local residents, businesses or bodies representing them to raise concerns about new licence applications and reviews to existing licences. To make a representation, residents or businesses must be within the vicinity of the premises in question. The determination of a vicinity is made locally by licensing authorities. However, residents or businesses are sometimes uncertain whether they are in the vicinity of a premises. Given that they are unable to make a representation if they are outside the vicinity, this is clearly of considerable concern to some people. As such, as my noble friend Lord Clement-Jones rightly says, we propose in the Bill to remove the definition of “vicinity” from the Licensing Act. This would mean that any person, business or representative body would be able to make a relevant representation to the licensing authority, regardless of their proximity to a premises.
I recognise that Amendments 237B and 239A are intended to restrict those who can object to persons who live sufficiently close to premises or whose business interests might be affected. This means that licensing authorities would still have to determine who lives sufficiently close to licensed premises. The purpose of what the Government propose is to remove any uncertainty for local residents and businesses if they are affected by premises, regardless of their—shall I say—immediate proximity to those premises. If accepted, these amendments would continue to raise uncertainty among local communities. They would also mean that residents and businesses that are affected by premises are unable to make a representation if the licensing authority decides that they do not live sufficiently close to those premises.
My noble friend Lord Clement-Jones was concerned principally about from how far and wide relevant representations may come. “Relevant” means that the representation should specifically be about the likely effect of the grant or variation of the premises’ licence on the promotion of the licensing objectives and, if the representation has been made by anyone other than a responsible authority, is not frivolous or vexatious. The licensing objectives are the prevention of crime and disorder, public safety, prevention of public nuisance and the protection of children from harm. One noble Lord—I think it was my noble friend Lord Shipley—said he understood that an objector must live in the same local authority to object. I can tell him that that is not the case; that is not how the Bill is drafted.
I also recognise that Amendments 238 and 239 are intended to ensure that residents and businesses in adjoining local areas receive more information on licensing applications. Currently, applicants for licences are required to advertise new licence applications in the local newspaper, as well as to display notices at or close to the premises. However, during the consultation entitled Rebalancing the Licensing Act the Government received significant representations from the alcohol industry, asking for the requirement to advertise to be removed altogether. We feel that the existing methods of communication, which require an applicant to advertise in the local newspaper and display notices at or close to the premises, complemented by the new requirement to publish key information on licensing authority websites, will ensure that all persons who could be affected by premises will have access to the relevant information, while balancing the burden on business. For these reasons, I ask that these amendments are not pressed.
Lord Clement-Jones
My Lords, I thank the Minister for that reply. I confess to being rather disappointed because, if anything, he has interpreted the clauses more widely than I had. He has said that they both apply regardless of proximity. That means that although they may have been constrained to some extent by their objections having to be relevant—it is perfectly possible to be relevant—the individuals or organisations involved will not in any sense have to be proximate. That is an extraordinary proposition. We have, perhaps, the example of the noble Lord, Lord Stevenson, of somebody coming down from Scotland and objecting to something in the Edgware Road. This means that some uncertainty is removed, but it seems to me that there is the certainty that a licensed premises is fair game for anybody, which creates enormous business uncertainty for them. Licensed premises—club premises—will essentially be fair game for national campaigns in the future. I cannot really believe that that is the objective of these clauses.
No doubt we will ruminate further on these parts of the Bill and the implications of the abolition of the vicinity test. However, I remain to be convinced that it is a sensible way forward. I beg leave to withdraw the amendment.
Lord Brooke of Sutton Mandeville
My Lords, I hope what I am about to say is not an abuse of the clause stand part procedure. The regulations under paragraph 17(5)(c) of the Licensing Act 2003, which sets out the 28-day period for making recommendations, should be amended so that the 28-day period starts from the date when the application appears on the licensing register rather than when it is received by the local authority. At present, applications can take many days to validate and may appear on a licensing register only shortly before the expiry of the 28 days. As electronic registers are increasingly becoming the preferred method by which interested parties can monitor licensing applications, this would make the system simpler and clearer, as my noble friend Lord De Mauley was suggesting a moment ago.
I realise that it may be asking too much to remove the requirement in the regulations for representations to be in paper form, as well as by a relevant electronic facility, but I hope that one could allow electronic representations to be valid in subsequent correspondence.
Lord De Mauley
My Lords, I am most grateful to my noble friend for raising a matter which is very close to my heart. I will reflect upon what he has said and revert to him, perhaps in writing.
Viscount Astor
Viscount Astor
My Lords, this is an important amendment. The industry is concerned that the changes in the Bill could affect someone’s ability to operate a business because it would allow a review to look at the business in a totally different way from what has been done before, and produce a severe financial impairment.
One should start off by saying that it is not easy to get a licence. It is extremely difficult. You have to persuade the local police and get them on your side. You have to persuade the local authority, all the local interest groups, your competitors and almost everybody else who has a view. It is a not an easy process. It is a high-hat hurdle. It is a major barrier. It is quite right that it should be. As part of that you have to show why various things are necessary. That process is understood by the industry, local authorities and all those who look on it from the outside.
The Government seek to change the evidence test for the attachment of licence conditions by using “appropriate” rather than “necessary”. There is no evidence that local authorities are in favour of this change or that there is any barrier to imposing tough trading conditions. The problem is that the word “appropriate” would allow decisions to be taken on the grounds of subjective judgment as opposed to the actual facts of a case. “Appropriate” is not clearly defined in law. I am sure that my noble friend the Minister will say that “necessary” is not defined in law either. However, it has been defined by various judgments in the courts so that everybody understands what it means whereas “appropriate” has not.
I should remind your Lordships that in these circumstances the only right of appeal is in effect judicial review, which is an incredibly long and expensive process. Will my noble friend explain what evidence there is for promoting this change? What benefits do the Government think will be gained from it? Those have not been properly demonstrated. The Minister in another place suggested that there was pressure for the change, but during that debate and since then the Government have produced absolutely no evidence that there is any pressure to make this change.
The worry about the change is that you might have a responsible operator who has invested large sums of money in a pub or bar, or whatever it happens to be, and is doing exactly what he should do under the law, but somebody reviews his premises under a totally different set of decisions based on an arbitrary view rather than on anything that is evidence-based or is required for the benefit of the local community, and the operator might either have to review how he operates his premises or lose his licence and suffer a substantial loss not only of earnings but of all the capital that he has invested in the business. This is a very important issue—perhaps the most important issue in this whole area of licensing so far as I can see. I hope that my noble friend will give it his usual careful consideration when replying. I beg to move.
Lord Clement-Jones
My Lords, I support Amendment 240 moved by the noble Viscount, Lord Astor. I wish to speak to Amendments 240A, 240B and 240P. Amendments 240, 240A and 240B would retain the “necessary” test for the determination of applications for a review of a premises licence. Review proceedings are quasi-judicial, designed to deal with infringements of the licensing regime and have a wide range of penalties available to be deployed against the premises in question, from the imposition of new conditions restricting the operation of the premises to suspension or even withdrawal of a licence. Therefore, it is surely right that a higher evidence threshold should be retained in these specific circumstances.
Amendment 240P, which is grouped with the other amendments that I am discussing, reintroduces the need in Clause 120 for licensing authorities to consider that an early morning alcohol restriction order is necessary for the promotion of the licensing objectives, rather than appropriate. The noble Viscount, Lord Astor, has set out extremely well the need for these amendments and the significance of the change from “necessary” to “appropriate”. The Bill reduces the evidence test for the attachment of licence conditions so that these are “appropriate” rather than “necessary”. We seek to remove that provision from the Bill, either through opposing that the clause stand part or through amendments.
There is no evidence to suggest that local authorities find the evidential burden too restrictive and plenty of evidence from across the country that suggests that it is not a barrier to imposing tough trading conditions, as the noble Viscount mentioned. The substitution of “necessary” for “appropriate” would allow decisions to be taken on the grounds of political expediency, say, or subjective judgment. The fact that “appropriate” is not clearly defined in law, unlike “necessary”, increases the likelihood of legal challenge and appeal. In contrast, operators will still need to satisfy the higher evidence threshold. It is notable that the concerns of operators are shared by the Local Government Association and enforcement authorities, which are worried that it may undermine the robustness of decision-taking.
It is crucial to retain the necessary tests for conditions. Licensing authorities are already able to impose conditions that they and other responsible bodies need to promote the licensing objectives without difficulty. The vast majority do not find the evidential burden for this too restrictive. For those that have experienced difficulties, with a lack of representation being made by responsible authorities about problem premises, the Bill makes local authorities responsible authorities, which means that they will be able to tackle problem premises in their own right, not rely just on evidence supplied by the other responsible authorities.
It should be recognised that licence conditions impose additional cost and restrictions on businesses, so they must be necessary—that is, essential—in order to justify the additional burden on the premises concerned. The breach of a licence condition is a serious offence and carries a fine of £20,000. Such a penalty is too great in respect of conditions that are simply deemed “appropriate”. A change from “necessary” to “appropriate” will introduce subjectivity into the licensing process and could lead to a disproportionately strong voice for minority interest groups that find themselves able to dominate the licensing process. There are many different types of conditions that could be considered appropriate for most, if not all, licensed premises, but would certainly not be necessary for the vast majority of them, which are well managed, responsible businesses. One can think of examples such as plastic glasses, CCTV, doormen, and duplication of existing legislative requirements—all of which could be imposed as perhaps being appropriate but not necessary in those circumstances.
In Committee in the House of Commons, the Government justified the lowering of the evidence test from “necessary” to “appropriate” on the ground that some local authorities feared that a particular condition or step they sought to take would not be regarded as necessary, and that support for the measure was based on “anecdotal evidence”. Surely, this is insufficient evidence on which to base a change of this nature that will fundamentally alter the basis of the Licensing Act. Indeed, the Local Government Association has also expressed its misgivings about the change, I understand.
Why should we reduce the evidence base for conditions so that the need for them becomes a more subjective matter of opinion? This will lead only to conditions being challenged more than is currently the case, resulting in an increased burden on licensing committees, the courts and licensed premises. The licensed trade claims that the current “necessary” test has worked well and has ensured that conditions attached to licences are fair and address specific concerns, as opposed to being unfair and disproportionate. Where is the evidence otherwise?
Lord Brooke of Sutton Mandeville
My Lords, my understanding of the background to the change in wording brought in by the Government is a little different from that of my noble friend Lord Astor, although closer to that of my noble friend Lord Clement-Jones. My understanding is that it has proved to be difficult and costly for some licensing authorities to prove, on challenge in the courts by applicants, that such-and-such a condition or restriction to the licence was necessary to promote the licensing objectives. In the face of strong legal challenges by trade interests with deeper pockets than local authorities, particularly in these parlous times, some authorities have backed down. I am glad to say that Westminster City Council is a praiseworthy exception.
It is difficult for a local authority to prove that some restriction is “necessary” in advance of a licence being granted, even if on the basis of probability it would be sensible to do so. My reading is that the Government have effectively decided to reduce the burden of proof so that a licensing authority would in future have to prove only that a particular measure is appropriate to promoting the licensing objectives, as the Bill states. Members of my former constituency in Soho and Covent Garden certainly think that the Government’s proposals are sensible and should stand.
Baroness Hamwee
My Lords, my noble friend Lord Shipley and I have not necessarily taken the same view on this part of the Bill as my noble friend Lord Clement-Jones. If I may put it crudely, we start from the localist rather than the business position, but I deliberately said on Second Reading that I thought that local authorities have responsibilities to businesses in the area as well as to residents. However, we are both sympathetic to these amendments—except, perhaps, for one of them.
The issue has been cast as a subjective versus objective test. Can the Minister say whether, on either or both “appropriate” or “necessary”, the term “reasonably” would be implied? That might help us to see the position as a little less polarised. My noble friend Lord Shipley, with his local government experience, reminds me that it could be difficult for the licensing authority to administer what is appropriate. That could be much more difficult to assess.
I depart from my noble friend Lord Clement-Jones on one amendment: Amendment 240P. I can see an argument for using the appropriateness test for making the new early morning alcohol restriction orders. We are talking about something a little different there, but I look forward to hearing what the Minister has to say.
Lord Hunt of Kings Heath
My Lords, I have added my name to those who have given notice to oppose the question that Clause 110 stand part. I do so as a way of probing the intentions of the Government. We will have to see what the Government have to say in deciding what view we take on Report.
I start from a position of supporting a rigorous approach to licensing. In this area, it is right that we have a rigorous approach. Equally, it is important that those bodies and individuals who apply for licences are clear what is required to be done under the law. My concern at the moment is that the arguments for changing the law as the Bill suggests do not seem to have been supported by the publication of policy, or anything more than the anecdotal evidence referred to by the noble Lord, Lord Clement-Jones, in discussion in another place. If it is true that the LGA is concerned about the changes—I can imagine the uncertainties that they bring to local authorities—there is a problem here. I invite the noble Baroness, between now and Report, if she cannot do so today, to set out the evidence that supports the change in the policy. If she could do that, we could come back on Report and have a more thorough debate.
Baroness Browning
My Lords, as we have heard, currently licensing authorities are expected to grant applications or variations to licences unless they receive relevant representations about the impact of such an application on the promotion of the licensing objectives. Licensing authorities must also be able to establish that the decisions which they take are necessary for the promotion of the licensing objectives. We consider that the requirement on a licensing authority to demonstrate that its actions are necessary places a significant evidential burden on it to demonstrate that no lesser steps would suffice. I am very grateful to my noble friend Lord Brooke of Sutton Mandeville for the interesting and apposite example he gave of the legal challenge and how that impacted on authorities in his area.
The purpose of the clauses is to replace the requirement on licensing authorities to take actions that are “necessary” with a requirement that their actions are “appropriate” for the promotion of the licensing objectives set out in the Licensing Act 2003. In making this change we are lowering the evidential hurdle which licensing authorities must meet when making decisions under the Licensing Act, including, for example, imposing conditions on licences.
Lord Hunt of Kings Heath
My Lords, I am most grateful to the noble Baroness for that explanation. Can she help in relation to the view of the LGA? It has been suggested in the House tonight that the LGA is not in favour of these changes, which is a puzzle in relation to the arguments that she put forward. I do not know whether she can throw any light on that. It is relevant to this debate.
Baroness Browning
My Lords, the Government consulted, and I cannot give the noble Lord an immediate answer on that specific issue. As I have said, 55 per cent—the majority—of those consulted were in favour of the proposal in the Bill.
Viscount Astor
My Lords, this has been an interesting brief debate. I am grateful to my noble friend Lord Clement-Jones for supporting the amendment. The noble Lord, Lord Hunt, said that we must have a system that is rigorous and fair. I agree with him. The noble Baroness, Lady Hamwee, said that it must be reasonable and she was worried whether appropriate can be reasonable.
My noble friend Lord Brooke suggested that the Government got it right because Westminster council and other councils face strong legal challenges. I will own up to having taken Westminster council to judicial review and won. The worry is that by putting in “appropriate”, legal challenges will not diminish but increase because everybody will argue about its meaning. Of course Westminster council would like the word put in; it gives local councils more power. Everybody likes more power, including Governments, local authorities and councils. However, this would give them power without the safeguards that are required, because it would enable someone in a local authority who has a view about a particular operator to put conditions on them such that they would have to close down. That would result in huge legal challenges because it would destroy the value of their business and would affect employment and lots of other things in that area.
The Minister gave an interesting reply, but I was marginally disappointed by it. She suggested that using “appropriate” would help to get rid of irresponsible operators. However, it is quite easy to get rid of irresponsible operators; that problem was not put by anybody who gave evidence to the Government. A licence to trade is incredibly valuable; it takes a lot of money and you have to go through a huge number of hoops. People do not trade in order to lose their licence because that will destroy their business. Of course there are bad operators, but they get removed easily; there is no evidence that local authorities have problems closing down irresponsible operators.
It is important that conditions should apply to licences, but they must be fair. My noble friend suggested that the Government would issue guidance. It would be helpful if the Government could produce draft guidance for noble Lords. In that context, I wonder whether between now and Report my noble friend Lord Clement-Jones and I could meet the Minister in order to understand better the concerns of the Government and come up with a solution, either by another amendment to the Bill if this amendment is not right, or by understanding what guidance can do to solve the problem of giving some assurance to operators that their business will not be impaired by unfair decisions that will involve them and local authorities in substantial legal costs and will be detrimental to everybody. With that, I beg leave to withdraw the amendment.
Lord Clement-Jones
My Lords, this is a device to elicit from the Government their motives for introducing a barrage of new provisions relating to temporary event notices. We seem to be building up a parallel system through the TENs system. It has worked extremely well. The notices are used extensively by community groups. They are not intended for commercial purposes, but are used for community events, village fetes, charity fundraising events and so on. It would be extremely interesting to hear from the Government why they feel that it is necessary to introduce so many new elements into the TENs system.
It was always designed as a form of flexible licensing for community groups. What is now happening under the various clauses relating to temporary event notices is that we are adding environmental health to the scrutiny process and are adding cost to the regime for local government as well. I do not know whether it is because the Government feel that TENs are being used by commercial operators, but the evidence given to me—I think, in particular, that increased hours during the new year celebrations was cited by the Government in their response to their consultation—has not painted that picture about how they are used. Ironically, it is likely that in any event there will be greater reliance if premises are caught by the late-night levy. There will be a greater use of TENs by commercial premises in those circumstances.
What is the justification for all these changes? What seems particularly odd is this extension: the change from a duration of 96 hours to one of 168 hours under Clause 116 and the increase in the number days from 15 to 21. If anything, one is making them more available for commercial purposes. We are changing from a temporary type of licensing to something much more permanent as far as I can see, so we have a self-fulfilling prophecy. Now we will have more conditions, and if there are going to be conditions, they should be standard conditions, so I have some sympathy with the amendments that follow in this group. I look forward to hearing from the Minister why we have to have more objectives, more bureaucracy and an extension of TENs as a concept in these circumstances. I beg to move.
Baroness Hamwee
My Lords, I do not think my noble friend is moving that the clause stands part of the Bill. I have Amendments 240C, 240E, 240F, 240G, 240H, 240J and 240K in this group. My noble friend mentioned parallel provisions. I think the noble Lord, Lord Hunt, and I have managed a degree of parallelism which probably adds to the confusion, but I think we are heading in the same direction.
In response to my noble friend, I say first that when we get to some amendments later on the subject of New Year’s Eve, I have a lot of sympathy for them. As I understand it, temporary event notices or TENs—I have always known that word in a completely different context—have grown in number far more than was anticipated. Almost 125,000 were used in the financial year to March 2010. They were introduced as a means of minimising the regulatory burden on small, ad hoc events, as my noble friend said, but they have grown somewhat. The Bill proposes that only following a representation from the police or environmental health will licensing authorities be able to insist that relevant conditions from the licence also apply for the duration of the temporary event notice and that regulations will stipulate the process, format and timescales for notifying applicants of the conditions.
I was glad to hear my noble friend’s comment about standard conditions. We know the view of the Local Government Association on this matter. It has briefed noble Lords that a more transparent and less burdensome approach would be for all existing premises licence conditions to apply automatically, apart from those that will be altered by a temporary event notice, such as hours. Licensing authorities should be given the ability to add appropriate conditions to a temporary event notice. Currently, there is no mechanism for adding controls in unlicensed premises. During the Commons stages, the Government responded that TENs would increase bureaucracy. Bureaucracy is not always a bad thing. Some bureaucracy is necessary. Giving authorities an effective tool would give them greater, but not disproportionate, control. Standard conditions would actually reduce bureaucracy.
Secondly, on the time allowance for temporary event notices, I share the LGA’s concern about the extension of the duration to seven days from the current four. Seven days seems to me to be qualitatively different from four. The Bill does not introduce a mechanism whereby unlicensed premises can be conditioned when using a temporary event notice, and the LGA is concerned about the scenario of periods of up to seven days with no conditions on things like closing times, door staff and so on. There would be a qualitative difference, and I think this extension would go too far.
Lord Hunt of Kings Heath
My Lords, may I in parallel—if that is a word—follow the noble Baroness, Lady Hamwee, and not for the first time in this Bill? I am very puzzled because the argument the Government have used in relation to this clause about increasing bureaucracy and their concerns about it seem to contrast with their approach to Clauses 113 and 114. There does not seem to be a consistent approach here. I do not understand why the proposals that the noble Baroness has talked about would increase bureaucracy. I would have thought they would be more straightforward. The Bill proposes, in relation to a TEN, that only following representation from the police or environmental health will licensing authorities be able to insist that relevant conditions from the licence ought to apply for the duration of the TEN. Surely a more transparent and less burdensome approach would be for all existing premise licence conditions to apply automatically, apart from those to be altered by the TEN. I do not understand why the Government are taking this approach.
Like the noble Baroness, Lady Hamwee, I do not understand the extension from four days to seven days. We heard from the Minister when we debated earlier clauses why the Government think there has to be extra vigour in the licensing process. Why, when we come to temporary events, has it suddenly been loosened up and the four-day limit extended to seven days? I would have thought that extending to seven days changes the circumstances. I would have thought it likely to lead to contentious, more costly disputes between operators, police and local authorities, and certainly on the part of the general public. The clauses are very close to each other. It seems they have been drafted by different bits of the Home Office, and they are wholly inconsistent.
Baroness Browning
My Lords, what a spurious suggestion. Amendments 240C, 240D, 240F, 240G, 240H and 240J would allow licensing authorities to apply existing licence conditions to temporary events if they considered it appropriate. They would also give them powers to prescribe a set of standard conditions that they could apply to a temporary event if appropriate for the promotion of the licensing objectives, as long as they were not inconsistent with the purpose of the event. This is far too onerous a requirement for what is intended to be a light-touch process for events of short duration. Temporary event notices are not supposed to be the norm, although licensing authorities and the police tell us that a few unscrupulous licensed premises have tried to use the TEN process to evade their licensing conditions.
Licensed conditions can be costly—for example, the requirement to have trained door staff where alcohol is sold. Although these costs may be justified and necessary for permanent activities, I believe that they could impose unreasonable costs on those holding temporary events. We are proposing that licensing authorities should be able to apply some or all existing licence conditions to attend but only if the police or, in future, the environmental health authority object to the TEN on the grounds of any of the licensing objectives.
Currently, the licensing authority has only two options; that is, to allow a TEN to go ahead or to issue a counternotice to prevent it. This provides a third option that, in relation to events at premises for which there is already a licence, will allow these events to go ahead but with relevant licence conditions applied to ensure adequate protection for patrons, residents and local businesses. I believe that this is a proportionate response to the problems caused by a small number of temporary events and will not unfairly penalise responsible businesses.
Clause 113 will allow the environmental health authority to object to a temporary event notice. Local residents have told us that temporary events can cause problems in relation to other licensing objectives; that is, public safety, the protection of children from harm and public nuisance. The most common problem is noise, and residents and others have asked us to give local authorities the power to prevent temporary events that cause noise nuisance from going ahead. For that reason, we propose to extend the right to object to a temporary event notice to the environmental health authority and to allow it and the police to object to a TEN on the grounds of any of the licensing objectives.
Clause 114, which relates to the proposal to prescribe a set of standard conditions, would also undermine one of the fundamental principles of the Licensing Act 2003; namely, that conditions should be appropriate and tailored to specific events. Proposals include measures to ensure that events that might lead to crime and disorder or nuisance do not go ahead. We are also putting in place other controls to ensure that temporary events are adequately controlled. We are extending the right to object from the police to environmental health officers as well and by extending the grounds for objections to cover not only the prevention of crime and disorder but also public safety, the prevention of public nuisance and protection of children from harm. I think that that is a repeat of what I have just said in relation to another clause.
Under Clause 116, currently a temporary event notice can be used only for events of up to 96 hours or 4 days and there must be a break of 24 hours between each temporary event. Therefore, we propose to increase TENs from 96 hours, 4 days, to 168 hours, 7 days. Temporary event notices are used by organisations such as travelling theatre companies and festivals, which typically run productions and events over a week. At the moment, their only option is to break for 24 hours in the middle of a run with consequent loss of earnings and inconvenience. This is an artificial constraint on activities which are extremely unlikely to compromise the licensing objectives.
There may be concerns that this proposal will allow week-long events that might undermine the licensing objectives. I can assure the House that this will not be the case. We are relaxing these limits, but we have tightened up other aspects of the temporary event notice process. For those reasons, I ask that the noble Lord does not oppose that the clause should stand part of the Bill.
Viscount Astor
Perhaps I may ask my noble friend a question or put in a plea. As she will know better than me, next year is the Queen’s jubilee and there will be street parties. Will she give an assurance that none of these changes to be put in place will affect the ability for people to have street parties, so that they will not run into the difficulties that some people had when holding a street party for the royal wedding?
Baroness Browning
My Lords, consultation and guidelines are being drawn up, but I believe that I can give that assurance.
Lord Clement-Jones
Some of the Minister’s explanation of individual clauses was very clear but I found her introduction about the philosophy of what was being done extremely convoluted. I will have to read Hansard at least twice to understand the philosophy behind this. Let me declare an interest. I live very close to Clapham Common. We have lots of temporary events on the common which work very well. The police make objections if they have them, but by and large they are well behaved occasions. Little bureaucracy is involved, but these are quite big events, in many cases involving thousands of people. I am sure that it is true up and down the country that many of these events take place without any problems. However, we seem to be building up a mountain of regulation to deal with a few problems. There is no pandemic of problems associated with temporary event notices. On the other hand, I can see within the new regime, as a resident near Clapham Common, that these TENs will mushroom into week-long music festivals.
I love music and I think it is great, but residents need to be given some consideration when activities take place on what is normally a common, where people walk their dogs and do whatever they do on Clapham Common and other open spaces; historically, I can think of a few other things as well. That said, it is extraordinary that in the end we will probably add to some of the problems rather than making it easier. We are adding a parallel form of licensing.
Baroness Browning
I am grateful to my noble friend. Because of the noise factor, we are allowing environmental health departments to take powers with regard to these things. As I mentioned, environmental health officers will have more authority than they had under previous legislation. I should have thought he would quite like a week-long music festival on his doorstep, but perhaps not. However, if he is concerned about the effect of noise on residents, he can contact the environmental health office, which can object on noise grounds. If, as a local resident, my noble friend felt that he needed to make that point to his local environmental health department, it would have the new power to object.
Baroness Hamwee
My Lords, in a less regulated world, I wonder if the Minister can help me. The proposals for standard conditions would allow but not require licensing authorities to prescribe standard conditions. To my mind, those conditions would be the basis on which one would build conditions appropriate to the event. Do the Government object to a licensing authority having the power to set up its own standard conditions, which I would have thought would be quite helpful for prospective licensees? They would then know what they might be subject to. Can she also tell me how this aligns with the provisions in the Localism Bill? I am sorry that we keep throwing this at the Minister. It is inevitable since the Bills are running concurrently and a number of us are looking at both of them. I can stop talking because the Minister probably has an answer by now. Again, my question is that where local authorities are to have a power of general competence, I do not quite see how these things will work together.
Baroness Browning
My Lords, I am pleased to say that I already have the answer. I can tell my noble friend that the conditions must be tailored, which I hope meets some of her concerns. However, I will have to write to my noble friend so far as the Localism Bill is concerned. I am not familiar enough with that Bill to be able to make a comparison of how it interposes with this legislation, but I will find out for her.
Lord Clement-Jones
I shall be brief. I thank the Minister for addressing my particular concerns. I am greatly in favour of live music, but in dedicated venues and small venues. Permanent live music on Clapham Common, even for a music lover, would be too rich for my taste.
My noble friend has illustrated that we are in what is almost a vicious circle, although she would probably say that it is a virtuous circle. We are investing TENs with longer time spans; they will be much greater in number; and as a result we have added environmental health officers to the process. We are to have tailored conditions and so on. She spoke about parallels, and we will be in a parallel situation where TENs are an important way of delivering these events. I am not sure that they were designed to do that, but because we are investing them with greater significance we have to introduce all these safeguards and conditions. It may require a second look, because, after all, it is very easy just to keep on regulating without thinking what the whole purpose of the exercise is. As I have said, I shall read the introduction to the Minister’s reply extremely carefully, because I am sure that I shall be able to discern the philosophy behind the measure without any problem.
Lord Hunt of Kings Heath
“Allowing the sale of alcohol to children
In section 147 of the Licensing Act 2003—“(6) A relevant officer may give a notice requiring a person who has committed an offence under this section to attend a prescribed training course.
(7) The Secretary of State must make regulations to provide for training orders for people who commit an offence under subsection (1) of this section.”
Lord Hunt of Kings Heath
My Lords, given the late hour and that this is our last group of amendments, I shall not tempt fate by seeking to open a more general debate about alcohol and young people. We will perhaps be able at the start of our sixth day of Committee to debate more general issues under Amendment 240M in the name of the noble Baroness, Lady Coussins.
I do, however, wonder whether we have got right our approach to children and alcohol. While I accept that there are very serious issues around allowing the sale of alcohol to children, there is no doubt in my mind that the crackdown on the sale of alcohol in pubs to older teenagers up to the age of 18 has not really had the desired effect. It seems to have encouraged those young people just to buy or get booze and drink it on the streets, whereas many 16 and 17 year-olds were clearly much better off under supervision in licensed premises. I worry about the advice that organisations such as the Royal College of Physicians have again given to parents about alcohol and young people. It seems so unrealistic as to lack any credibility. I do not expect the Minister to answer these substantive questions; I shall just say to her that I am not sure that either the Government of whom I was a member or hers, or many of the bodies involved, have taken a realistic attitude.
The amendment brings us back to a debate that was held in the other place, where there was a vote in Committee. It suggests that among the penalties available it might be useful to have a training order. Where appropriate, it would enable those persons who sold alcohol to undergo training and help to ensure that the behaviour in question is not repeated. I understand that there is considerable support for this proposal. I would be interested to know whether the Government, in the light of the debate in the other place, have given some further thought to this matter and consider that it might be appropriate. It is not a substitute for other penalties; it is just another option that might be adopted. I beg to move.
Lord Clement-Jones
My Lords, I support the amendment of the noble Lord, Lord Hunt, and I shall speak to Amendment 240N, which has a similar concept, and Amendment 240L.
Training orders would be a more proportionate way of addressing instances of underage selling where there has been no intent to do so. They would provide a positive alternative to a fine or a closure order and give an additional discretion to the authorities. Under Amendment 240N, a training order would require a business to close for a period of 24 hours to train staff in their legal obligation not to sell alcohol to those aged under 18 and on the importance of checking proof of age. There would be a cost to business in terms of lost revenue but the staff would still be paid, which would not be the case in the event of a closure order. Training orders would provide a remedy that would address the issue and provide a long-term solution. At the same time the business concerned would still suffer the penalty of a temporary closure, resulting in loss of sales for the period of the order. Both Amendment 240KA and Amendment 240N are to be commended.
Amendment 240L is rather more radical. It would remove the proposed extension to closure notices. A closure of more than 48 hours could have a severe impact on any licensed premises and their staff, not least in the current difficult economic climate. The current system has, I am reliably informed, worked well, and it is unlikely, the licensed trade tells me, that many premises would accept a notice to close for longer than 48 hours but would instead opt to go to court.
The need for and benefits of extending the current norm of 48 hours is therefore questionable—certainly the upper two-week period, 336 hours, would seriously damage businesses, particularly small hospitality businesses, which have been among the hardest hit by the recent recession. A two-week closure would affect the income not only of the business itself but also of its employees who, in most instances, would not be paid. Such extended closures could be justified only where the underage sale was made with intent; otherwise training orders, as we have discussed, as proposed by Amendments 240KA and 240N, would be a more effective and fairer solution.
No one would condone deliberate sales to those who are under age. However, a closure notice extending to 336 hours is an extraordinarily draconian proposal. I hope that the Government will accept that many breaches are not with intent but are inadvertent; and that where staff need proper training the concept of training orders is a more constructive way forward.
Lord Shipley
My Lords, I make the fairly obvious point that training of staff should apply before people take up a job. Training orders cannot just be applied for persistently selling alcohol to children. “Persistent” implies several occasions. Surely a training order should apply from the first offence. It is a small but important point that training should apply at the beginning of the process, not after persistently failing to abide by the law.
Lord De Mauley
My Lords, I am grateful to noble Lords for tabling these amendments because the Government take a very serious view on the sale of alcohol to children. Amendments 240KA and 240N would enable those premises found to have sold or persistently sold alcohol to those under 18 to undertake a training order. I acknowledge training is a useful way to ensure that staff are made aware of the importance of age verification, but we do not consider that the proposed measures are an adequate sanction for such a serious offence. There is already a requirement, as part of the mandatory code for retailers, to implement an age verification policy for premises. Retailers therefore, as a matter of best practice, already train their staff on the age verification policy to ensure that they adhere to the law. They must take this responsibility seriously.
The mandatory age verification condition already addresses this issue and is designed to ensure that staff are well trained, competent and aware of the consequences of selling alcohol to children. There are already schemes in place that offer training and examinations for staff on underage sales and the proof of age, including the national award scheme Best Bar None. I am also most grateful to my noble friend Lord Shipley for his point, which I agree with. Police and trading standards officers need to be able to take tougher action in these cases and I question whether a maximum closure period of 24 hours—which Amendment 240N includes—sends retailers an adequately clear message.
We are committed to taking tough action against those persistently selling alcohol to children. In tandem with doubling the maximum fine, extending the period of voluntary closure will send a very clear message that selling alcohol to children is a serious offence and will not be tolerated. A training order could be seen as a soft option, particularly since it would discharge criminal liability and allow those premises to continue to trade. Amendment 240L would mean that the period of voluntary closure should remain at a maximum of 48 hours. We do not feel that provides a strong enough sanction for those seeking to avoid prosecution and a heavy fine. As I have said several times, selling alcohol to children is a very serious offence and it is vital that irresponsible businesses recognise this. Some businesses see a 48-hour closure as a much softer option than a fine. We believe that the period of closure should reflect the severity of this offence and send a strong preventive message. For this reason, I believe that the flexibility in the duration of a closure notice from 48 hours to 336 hours, from two days to two weeks—and I should say it is a maximum—is essential to make a voluntary closure notice a viable alternative sanction. For these reasons, I hope your Lordships will agree to withdraw the amendment.
Lord Hunt of Kings Heath
My Lords, I am very grateful to the noble Lord for that explanation. I do say to the Government that I remain completely unconvinced that we have the right approach to the issue of alcohol and children and I would welcome, at some point, some wider debate perhaps in your Lordships’ House on this. However, I am grateful for the explanation and beg leave to withdraw the amendment.