Southend Hospital

Jake Berry Excerpts

Wednesday 5th December 2018 Westminster Hall

[Shabana Mahmood]

My hon. Friend, the shadow Minister, is absolutely right: the process is too difficult and onerous. I have a copy of the documentation put together at huge cost in time and resource by the police in support of the application for a closure order. It is more than 100 pages long—I was trying to print it before coming to the Chamber so that I could show it to everyone, but my printer broke—given the amount of work and number of witness statements required of police officers.

In the first case against Arabian Nites, the police did not get the closure order and had to apply a second time. Meanwhile, my residents who live with that place directly opposite their homes are terrified of gun violence, of stepping outside late at night and even of taking their kids to the school around the corner. The regime is too onerous, and to rely simply on existing police powers is not good enough. I have nothing but praise, by the way, for the way in which the police have tried to engage with the issue. They have done their best with the avenues open to them.

In Birmingham, a total of three such establishments have been subject to closure orders. All three happen to be in my constituency: Arabian Nites, which I have mentioned; Cloud Nine, which was closed after the suspected sale of laughing gas to children as young as nine, and following breaches of fire safety and venue capacity limits; and the Emperors Lounge, which was closed after a murder was linked to the premises, but which has since reopened after a three-month closure order.

As the law stands, shisha smoking is subject to the ban on smoking in public places, alongside all other smoking in the UK—it is subject to the same rules. Shisha is a tobacco product, so it is subject to the same rules that apply to regular tobacco, in particular the ban on sales to those under 18. When it comes to licensing legislation, however, the Licensing Act covers only the sale of alcohol and certain forms of regulated entertainment. Shisha bars or lounges do not require a licence under regulation unless they sell alcohol or have other regulated entertainment under the 2003 Act.

Some establishments sell alcohol. Arabian Nites was selling alcohol, which was one of the bases on which the police and the council were eventually able to take action, but Cloud Nine and the Emperors Lounge did not have licences for the sale of alcohol, instead falling within the other regulated activities under the Licensing Act. No single agency or piece of statutory legislation regulates shisha activities. If serious incidents occur—shootings or serious violence such as I have had in my constituency—the police may apply for the powers available to them under antisocial behaviour rules, such as a three-month closure order, as we have seen in Birmingham. However, that process takes a lot of time and effort.

Furthermore, many premises will fight their corner with what is available to them through the legal system. It is fair to say, too, that many will do whatever they can to frustrate the legal process, keeping the thing running for as long as possible in order to beat everyone down and evade the enforcement action being sought.

[The Parliamentary Under-Secretary of State for Housing, Communities and Local Government (Jake Berry)]

I would be interested to hear the hon. Lady develop what are some good, well made points about the Licensing Act. Obviously she will be fully cognisant of the fact that many shisha lounges are smaller businesses. These are businesses on which people, their families and their mortgages all rely, so the bar on closing them is often set relatively high. The police have an obligation to show that the business should be closed. How does she think that should be balanced with the argument that she is making?

[Shabana Mahmood]

I will develop that point. I absolutely acknowledge that shisha lounges are often small businesses, but a lot of the troubled premises are not the average small business. They are big venues and very lucrative—I have learnt a lot more about shisha than I ever anticipated when I first became a Member of Parliament—and the biggest establishments can afford to have personal appearances by celebrities. It is not unusual to find boxers or Instagram stars visiting such places, putting in a personal appearance in the same way as they might for a new nightclub or members’ club opening in any city across the country. There is a distinction to be drawn between the much smaller operations, which are more similar to a café with the added ability to offer shisha smoking to its patrons, and the big ones that are much more like nightclubs.

The legal tests in existing legislation are onerous, and there is a balance to be struck in ensuring that people can have a viable business and not be shut down on spurious grounds or unfairly. Police and council officers are cognisant of their legal responsibilities and do not want to drive away good businesses, but I believe them when they tell me, in my conversations with them, that some of the most troubled establishments employ high-powered lawyers and do everything they can to frustrate the process. That happens right at the beginning of the process, at the planning stage—they set up as a café or restaurant, and add other things as they go along, developing the shisha business. There are many ways around the system, as well as many gaps, which some individuals are keen to exploit, because this is a lucrative business.

In London, Westminster City Council in particular—I am pretty sure it is Westminster, so I hope I have got that right—has led work looking at tobacco duty, which is often not paid on imported shisha, so there are tax implications as well. I do not want to make out that these are all bad businesses—they are not—but where people flout rules and regulations, they do so in a considered and planned way. They know what they are doing, so it is right to weight the law and to make the thresholds in the legal process that have to be crossed more favourable to residents, because when it goes wrong, as it did for the people of Highgate in my constituency, it is horrendous. It ruins lives and breaks communities, and that is too high a price for local residents to pay for the sake of the business needs of some of the shisha establishments.

In Birmingham, we have 37 premises, many of them concentrated in my constituency, but with some in other parts of the city. That is only the ones that we know about—37 premises known to Birmingham City Council. With no specific licence requirement for shisha, many places open without any recourse to any of the authorities whatever. As I said, the numbers have grown rapidly. The highest concentrations of shisha premises are found in the London boroughs of Westminster, Ealing and Brent, while Birmingham has the highest concentration outside of London.

The statutory provisions around fire risk, indoor smoking, the sale of tobacco to minors and the non-payment of tobacco duty, which I mentioned, are regularly frustrated. The sanctions available under tobacco-related laws are not acting as a deterrent. That is certainly our experience in Birmingham.

The fire risks are considerable. In Birmingham alone, we have had six major fires over the last five years. That is not surprising when one drills down into the situation, because within those premises there is a high number of ignition sources, combustible material and often low staff awareness of fire safety, and some of the venues are situated in hard to get to places, or are big and spread out over a number of floors, which poses a risk in and of itself. A business sector that is relatively small in number suffering six big fires in a five-year period is indicative of a much wider problem. Other local authorities are also greatly concerned about the fire risks.

Something that I thought about when drilling down into the issue—the Minister might raise this himself—was whether it was simply a case of the different agencies not working effectively together. Could it be that although the law, annoyingly, is not all neatly in one place and the powers are spread across different Acts of Parliament, it can be used creatively and effectively to bring the problem under control? After two years of dealing with these issues, I can say that it is not a case of the agencies not coming together. I have seen nothing but good practice at Birmingham City Council, and I pay tribute to Janet Bradley, who has taken the lead on shisha issues, and all of her team there. They have worked with all the other teams across the council, they have worked with partner agencies and they have worked very closely with the police, to whom I also pay tribute for all their work, particularly on getting closure orders.

That is the case not just in Birmingham. Westminster City Council, too, has published a strategy, held a symposium, and got everybody with any interest, whether public health, fire safety, or policing—the whole picture—into a room together to create a strategy for them to deal with the problem as far as the law currently allows. Brent Council either won an award or was shortlisted for one for its work in preparing its strategy. In the Commons debate pack produced by the Library, there was an article that I had not seen before, in which Brent Council’s leader, who wrote to the Home Secretary about the problem in 2017, called some of the shisha establishments in Brent “lawless” places that attracted drug-dealing and sex-trafficking. It is not for want of trying by different local authorities run by different political parties, where people have tried to grasp the issue and find a way to cut through and get enforcement action quickly and effectively, but no matter how much good work is done, in truth it takes a disproportionate amount of time to take action with the available powers and resources.

The time has come to enhance the legislative framework surrounding shisha premises and, I believe, institute a licensing regime specifically for shisha premises. That would allow local authorities to license shisha premises to operate in their area and make it illegal for a shisha premises to operate unless it was licensed. It is important to go after the shisha aspect of the entertainment offer of those premises, because that is the basis on which the business model operates. Those venues are not interested in being your average café or restaurant. The shisha is key. It is lucrative. It is absolutely essential to the business model. That activity, rather than anything else that might be included and covered by licensing regulations, needs to be licensed now.

The first aim of the licensing regime would be to reduce the detrimental impact on communities; that must be at the heart of any such regime’s objectives. It must ensure that premises do not cause a public nuisance, along with all the other crime and disorder issues that I have highlighted. There is also space for the raising of hygiene standards and for safeguarding policies to restrict the admission of under-18s. That is not something that I have focused on particularly in my work in Birmingham, but I often see college-age students—under-18s—going to those venues, and it is pointless to have age limits in law if they are openly flouted in that way. A licensing regime would give us the opportunity to put those policies in place.

We need to have sanctions for non-compliance that cannot be frustrated by the company changing name, which often happens. Even when we do have absolute clarity on the ownership and management of the business there are problems. For example, when the police obtained closure orders for the three venues in my constituency, it was normal, when they or council officers turned up, for people who clearly worked in those establishments to say that they did not work there and did not know who the owner was. Many of the venues do not even have a postal address because, like some other problem night-time economy venues, they evade postal contact. That sounds like a small issue, but it frustrates council officers’ or police officers’ ability to contact those responsible when trying to fulfil their legal duties, and from day one, that stops them taking effective action.

Following discussions with officers at Birmingham City Council and others, I conclude that there are three ways in which we could pursue a licensing regime for shisha premises. The best and most workable solution would be to make an amendment to the Local Government (Miscellaneous Provisions) Act 1982, which would simply state that we are going to control shisha premises. That amendment should provide for an adoptive licensing regime that gives flexibility to local authorities, so that they can set local controls to deal with the issues that they face in their areas. That is important because problems take different forms according to the locality in which the shisha lounge is located. On Edgware Road, for example, problems in connection with shisha premises are of the same order but play out slightly differently from those in Highgate, in my constituency. An adoptive regime that gives flexibility to local authorities is the best way forward, taking a similar approach to that which has been taken on sex entertainment venues. That gives local authorities powers to set local controls and, in doing so, puts local people back in the game and gives them a say on what happens in their local area. I believe that is the change that best lends itself to a licensing regime for shisha premises.

Many of the standard terms that apply in other licensing regimes would be easily transferable to a shisha regime, which would comprise all of the standard enforcement actions that flow from licensing regimes. The key ultimate power would be the ability to revoke a business’s licence and thereby put it out of business, rather than providing an opportunity for it to come back in some other shape or form.

If we do not go down the road of an amendment to the 1982 Act, there are two other ways in which I and others consider that a change might be made. Another way of trying to control shisha premises is to strengthen the current provisions of the Health Act 2006 and the Smoke-free (Premises and Enforcement) Regulations 2006. Current regulations stipulate how enclosed a space has to be in order to comply with the legislation. Obviously, there must be proper ventilation and so on. Some premises earning good money can install a retractable roof. When somebody goes to conduct a check, the roof is off so it looks like there is adequate ventilation, as required under the regulations. The roof, of course, goes straight back on as soon as the officer has left the building, because offering shisha outdoors, in the cold weather or in the rain, will massively affect the business model. It is not tenable to assume that the 2006 regulations are being regularly complied with in some of those establishments. We could try to find a way around that but, in the end, I concluded that trying to draft something that closes all the loopholes in the legislation and covers the ways some problematic shisha premises operate would not achieve the desired effect.

I also considered whether it would be possible to reach an agreement on an interpretation of the local government declaration on tobacco, for local authorities with public health duties. An interpretation could be added that councils cannot allow any kind of licence for businesses with a model that gains money from people smoking. The public health duty is to try to reduce the risk of harm from smoking. I am not an official draftswoman, but I did not think that would work. I played around with two other possibilities before deciding that the 1982 Act is the way forward.

Following advice from Janet Bradley and the officer team at Birmingham City Council, and having consulted other local authorities that face this issue, I concluded that the cleanest and most effective way of dealing with the problem is to adopt a licensing regime under the 1982 Act. I would be delighted if the Minister stood up and said, “Yes, you’re absolutely right. We will get on this straightaway.” If that does not happen, I would like him and his officials to have an open mind about the licensing regime and at least to commit to exploring what changes under the 1982 Act might look like. There is a wealth of experience across local government and from other parliamentarians in this House—some colleagues are waiting to speak in the Brexit debate in the main Chamber and could not be here—that the Minister could draw on, which hopefully will convince him that there is a problem that needs a solution, and that this is the best solution on offer.

Following the point made by my hon. Friend the Member for Manchester, Gorton about public health, shisha smoking is as harmful as normal tobacco smoking, if not more so. People still think that the smoke is much less harmful because it goes through the water filtration system before being inhaled. The World Health Organisation and other organisations that have researched this are clear: in one hour on a shisha pipe, a person can take in as much tobacco as if they had smoked 100 cigarettes. The health implications of large numbers of our population smoking shisha on a regular basis cannot be underestimated.

Local authorities have a public health duty. Places such as Manchester, Westminster and Birmingham are trying to do what they can to raise awareness of the public health implications of shisha, but piecemeal work by good people in good local authorities is not the way forward. The work should be led at ministerial level, at least to convene a roundtable to get the right people in the room, to think about how we might do more together through central Government and to raise awareness of the harm of shisha smoking.

We are storing up future public health problems for ourselves. I would be grateful if the Minister shared his thoughts on that. My absolute ask, as I have said throughout my speech, is for a licensing regime for shisha. The residents in my community have suffered greatly because of the gaps in the current system. It has taken us too long to get temporary action. That is not good enough. My residents deserve better. A licensing regime is the best way to deal with the problem once and for all.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Housing, Communities and Local Government (Jake Berry)]

It is a great pleasure to serve under your chairmanship, Mrs Main. I congratulate the hon. Member for Birmingham, Ladywood (Shabana Mahmood), whose constructive approach to the debate has engaged those on both the Opposition and the Government Front Benches. Her speech showed her passion for supporting her constituents and ensured that, rather than having a political argument—the issue is probably above politics—we have engaged in a constructive discussion about what we can and should do, and how people can work together to achieve something. I intend to follow the same constructive approach in my response to the debate.

I am a bit of a libertarian, so I am not necessarily always in favour of introducing new licences or imposing new requirements on business. The hon. Lady said that some of her constituents like going to shisha bars. Funnily enough, I was talking to a reporter on my local paper, the Lancashire Telegraph, which covers Blackburn—just over the border from my constituency—where there are some shisha bars. Most of them are well run and managed, and I know that the hon. Lady will confirm that in relation to her constituency. Many are smaller businesses, and often family businesses. They provide people with a living.

Today’s debate is important, because the prevalence of shisha bars is something new for Britain and our society, and my Department of course is responsible for communities. It is exciting that there are new ways for people to relax that do not necessarily involve alcohol. When such changes happen in Blackburn, Manchester, London, Birmingham and elsewhere, we must look at the law and see whether it covers the current situation. I suppose the question we should ask is: what response to a new activity would be proportionate?

The law currently governs many of the spaces in question, but I accept the hon. Lady’s point about the complexity of the law and the need for multi-agency working. Many of the relevant provisions will be in planning legislation, including on such matters as the construction of ventilation and outdoor seating areas. There is a requirement to license outdoor seating areas. Environmental health will have a role and, of course, some of the more serious crimes that the hon. Lady mentioned must be dealt with by the police. We cannot expect—I know she is not asking for this—local authorities to control the most serious associated gun and gang violence through licensing law. Whatever we do—even if we bring forward a new licensing regime—we must not lose multi-agency working.

There are, of course, already severe sanctions for breaching the existing regulations and laws, including one of up to £2,500 for breaching the smoking ban, as has been mentioned. Antisocial behaviour closure notices provide the opportunity to close businesses, as we heard with respect to Arabian Nites—although the process the hon. Lady described was quite difficult. On that specific case, it is worth noting that obviously a licensing regime will not be a silver bullet. The venue was licensed and therefore was subject to existing licensing laws—particularly for alcohol. The hon. Member for City of Durham (Dr Blackman-Woods), speaking for the Opposition, said that it would require days of work by enforcement bodies, including the police, to reach the point where the licence would be removed. I suggest that under a new licensing regime where places were licensed for shisha rather than alcohol—or where there was joint licensing—it would still require days of work to prove that licences had been breached. Often the people running the businesses, as the hon. Member for Birmingham, Ladywood pointed out, rely on them for their living.

[Jim Shannon]

Would it be possible to regulate the businesses under council entertainment licences? Residents living close by who had concerns about antisocial behaviour or anything else could, through the application process, have input into whether a licence was granted. That would perhaps give control to the community.

[Jake Berry]

I am extremely grateful for that intervention, which draws me on to my next point. When we acknowledge that something new may have problems attached to it, we should next ask ourselves whether a national or local response would be better. I want to consider what can be done through existing local authority powers, whether through entertainment licences or by engaging in collaborative working. As has been identified, at the moment shisha bars tend to be in concentrated areas across England, but perhaps a national response is not the best one. I shall certainly ask my officials to look at the best practice that has been adopted in Manchester and Westminster. Whatever the outcome of the debate, we can probably all learn from that. Where local authorities have identified shisha bars as an issue for their area, or even a benefit, it would be worth their talking to each other and working together. I am sure there is best practice to be shared.

[Shabana Mahmood]

From the work that I have done, and from engaging with Birmingham City Council, I know that council officers who deal with shisha issues in local authorities where it is a problem are already in contact with one another. They know each other well and get together regularly to share best practice, so it happens already. I appreciate what the Minister has said so far. I guess what I was explaining from my experience, which I hope has been noted a bit more than the Minister’s speech has signalled, is that the current rules have too many gaps. Unless there is alcohol, nothing can be done. It is too difficult to get action where there is a licence for alcohol, but if there is no alcohol licence it still takes too long. Of the three shisha bars in my constituency that were closed, two did not have licences for alcohol. I hope that he will reflect on that.

[Jake Berry]

I am not sure I accept that if a premises does not sell alcohol nothing can be done, and I referred earlier to a plethora of powers that are available to the multi-agencies, particularly local authorities. I accept that this is a new issue, and I applaud the collaborative work being undertaken by local authorities, because it is worth them exploring what they can do. The real challenge, however, is enforcement. The hon. Member for City of Durham mentioned the inability of council officers to go around with clipboards enforcing the rules, and the hon. Member for Birmingham, Ladywood identified the issue of protractible roofs, which are rolled open in mid-summer when environmental health officers visit, but closed as soon as they have left. There are certainly challenges regarding the enforcement of existing powers, which is something we should address.

[Dr Blackman-Woods]

I mentioned the need for enforcement after breaches of the Licensing Act 2003 and the 1982 Act, but no one should think that I believe enforcement to be the answer—I do not. I think that there is a gap in the legislation, and Opposition Members understand clearly how to address it.

[Jake Berry]

Again—hon. Members are being helpful to me today—that brings me to my next point. We have been considering whether a local or national response is best, and if at the end of that evidence trail a national response is appropriate, my mind is not closed to that. As I said, however, there is no silver bullet, and some issues that have arisen are serious criminal offences that would not be covered by any licence—illegally held firearms are not subject to a licensing regime, so we must be careful to have a good look at that issue.

That brings me to my offer to the hon. Member for Birmingham, Ladywood, because her idea about a roundtable is extremely good. I happily invite her to come and meet me and officials, together with council officers who have real expertise in this area, and we as a Department should start that dialogue about how we can help and what would be an appropriate national response, if indeed one is required. The bar for closing someone’s business should be quite high, as should the bar for a national response when many powers already rest with local authorities. I have not closed my mind to the fact that there should perhaps be a national response, but a lot of work must take place before we get there. I hope that is helpful.

The hon. Lady spoke about shisha bars being an add-on to many cafés and restaurants, and that is something we have identified. In my high street, the local coffee shop is also a bookshop—I am rather keen on books, so I go there quite a lot. In the evening it is also a yoga studio, but I am not quite as keen on yoga and cannot admit to having done it. The multi-use of retail premises was one thing identified by our future high street forum, and particularly the work of Sir John Timpson, who advises the Government on future high street policy. We are lucky that he is doing that as he is one of Britain’s most experienced and longest serving retailers.

As an acknowledgment of the challenges posed by a relatively static use class order system that dates from the 1980s, on the same day as the most recent Budget we launched a consultation on the future of that system on the high street, although not more widely for industrial units. That consultation remains open, and I recommend that the hon. Lady, her council and the hon. Member for City of Durham take part. Again, we have approached this in a very open way, and in the first potential major refresh of use class orders since the mid-1980s, it is important to ensure that the static system becomes more mobile and reflects changes such as the arrival of shisha bars on our high street.

Finally, the prevalence and growth of shisha bars is the sort of thing we try to encourage for our future high street forum, as long as they are legal, well run and do not impede unnecessarily on local residents. The future of the high street must be about a mix of leisure and retail, and all recent reports—including by Sir John Timpson on the Government’s future high street forum, and the Grimsey review—identify that if high streets are not just to survive but to thrive, they must incorporate the night-time economy.

We must get the regulation right and be satisfied that existing laws are enforced well, and if we decide that new regulation is required, we should consider that. A thriving night-time economy is key to the future of our high streets. Indeed, that point is not just for today, because in the most recent Budget my right hon. Friend the Chancellor identified a £600 million-plus fund for the future high street. We have the future high street forum, and I will conclude my remarks by again thanking Sir John Timpson for his extraordinary work on high streets, which will benefit the entire United Kingdom.

[Shabana Mahmood]

I thank all hon. Members who have contributed to the debate, as well as the Minister for not closing his mind to the idea of a national-level response and a new licensing regime for shisha bars. I take on board what he says about requiring a high threshold to be passed before somebody’s business can be closed. Members of my family, and my friends and constituents who go to well-run shisha places and have a nice time out, will not thank me for getting their lovely venue, which they enjoy, shut down. I am not a killjoy and I am not trying to get rid of good businesses and establishments; my concern is focused on where things go wrong, and at the moment I cannot accept that we have what is needed to head off such problems before they start affecting residents in the way that many in my community have been affected. I take on board what the Minister said about thresholds that must be crossed, and we must ensure that we have fully considered all the measures currently available. I hope that on further reflection, and given that he does not have a closed mind on the matter, I will be able to persuade him and his colleagues that a licensing regime is necessary.

Normal nightclubs can become troubled premises because they attract the attention of gangs or protection rackets—we know those things happen. I take on board the Minister’s point that there is no silver bullet, but there is a whole world of activity before we get to the serious end of the spectrum that a licensing regime could take into account. I will certainly take up the Minister’s offer of a roundtable, particularly by engaging with council officials from across the country who have a wealth of knowledge on these matters.

[Jake Berry]

I am sorry to intervene on the hon. Lady, but it is important that that roundtable includes representatives from the Scottish Government, because they need a separate legislative response for the solutions suggested.

[Mrs Anne Main (in the Chair)]

I thank the Minister for that clarity and hope that the hon. Lady is concluding her remarks.