Licensing Act 2003: Post-Legislative Scrutiny (Licensing Act 2003 Report)

Lord Brooke of Alverthorpe Excerpts

Wednesday 20th December 2017 Lords Chamber

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I join others in congratulating the noble Baroness, Lady McIntosh of Pickering, on securing the time for the debate and on the work she has done, and I thank all others who were associated with producing the report.

I take the opportunity to wish all my colleagues, the noble Baroness and the staff of the House—and in particular Hansard reporters—a joyful Christmas. I mention the Hansard reporters as I am not doing my set piece because so many of my points have already been covered, so this will be off the cuff. I wish everybody a joyful Christmas and a happy new year, and that we may look forward to great progress being made in dealing with the problems that face us in the coming year.

Rather like the noble Lord, Lord Mancroft, I had never previously served on a Select Committee on post-legislative scrutiny. I was attracted to join this one as I thought it was not just about seeing whether the original objective of an Act had been achieved—the objectives of this Act have been achieved; it was about liberalising the sale of alcohol and, by God, it has certainly done that in great spades—but looking at whether other consequences have arisen en route that were not foreseen when the original Act was devised in quite different circumstances. There have been changes; the Government realised fairly early in the 2005 to 2010 Parliament that they needed to do something about what was happening with the night-time economy and the disorder that was arising, so a variety of pieces of legislation were put through.

The coalition Government came into power in 2010 and saw that there were other consequential problems—notably also about excess drinking—in many respects related not to the Act but to cheap booze. They came up in 2011 with a quite outstanding strategy devised by David Cameron, which was to tackle some of those fundamental topics. Regrettably, as with so many of Mr Cameron’s policies, it never saw the light of day. Indeed, within two years the now Prime Minister, Mrs May, who was then Home Secretary, delivered a judgment on many of those recommendations Cameron had made, and said that we do not need to take a hammer to sort out some issues—although she certainly took a sledgehammer to deal with some of the recommendations. The Government virtually abandoned MUP—yes, it is under review, but it was virtually dropped, and a whole range of other issues was set to one side. Instead, they opted for an attempt to work with the industry and the health representatives on a collegiate basis whereby legislation would not be required but we would effect a change. We would try to reduce the volume of alcohol consumed by the country and, in turn, we would hope that we might get an improvement in the deteriorating state of health. All the evidence that was amassed at the time seemed to indicate that the health service was carrying a great and growing burden, much of which was attributable to excess abuse of alcohol.

The responsibility deal worked for a period and then was set to one side. Why? It was primarily because the Chancellor of the day, Mr Osborne, decided to drive a coach and horses through the principal recommendation to try to reduce the volume of alcohol by freezing the amount of tax and excise duty on alcohol. The reality is that pricing works. If you increase the price of petrol, people drive less. If you increase the price of alcohol, people drink less. Ask the drinks industry what it does; it spends all its time lobbying for a reduction in taxes and in the price of alcohol. It achieved it under George Osborne, and recently in this last Budget with Mr Hammond. Yes, he is having a look at white cider—he has taken 18 months to consult on that and there is no guarantee that there will be any change—but he has frozen all the other duties. I recently asked the Government what the consequences of that are. Did they do a risk assessment for the NHS of how many poor people they will deal with and the cost of that? The Treasury has come back saying that it did no risk assessment whatever.

What we have before us now is a diversity of approaches to dealing with alcohol, all coming from different angles. I caused the committee some difficulty because to a degree I went outside the terms of reference—for which I apologise—but, given my time over again, I would continue down the same line because I believe there is a need to bring this all together in some way and for there to be a constructive approach from the different parties. One party is the Treasury. I sought to persuade my colleagues to take evidence from the Treasury about its interest in this topic.

I come to the response that the Minister sent the committee. She will be happy to hear that, in contrast to some of my contributions to our previous debates on alcohol, I am quite pleased with the response. When she gave us her first piece of evidence at the start of the committee, she barely mentioned health and the problems that existed then. It was only by delving down into the detail that we saw the extent to which health was a big factor that needed to be addressed. This time round, certainly in the preamble, the Minister has given quite extensive coverage of the wider problems relating to health, as well as the social problems, with violence in families and so on, and she agrees that something should be done about them.

However, the response says that the Act is not a suitable mechanism for solving all those problems, and, to a degree, the committee agreed, although I am at variance with it on that. The Minister says that she has to bring all the partners together to see how to move forward but that these are not necessarily issues relating to the Act. Can she tell me, first, who the partners are that she believes are involved in the development or otherwise of an approach to alcohol? She has said in response to recent Written Questions that there will not be a strategy on alcohol. So who are the partners and how do we bring them together, and how quickly will that be done? The matter is now urgent. We have a health service desperate for extra funding and desperate to reduce its burdens, yet here we have a Chancellor putting extra burdens on the NHS while giving it extra money. We need to try to stop people going to hospitals in the first instance, and one way of doing that is to look at alcohol—particularly the cost of alcohol—and the way it is now being marketed. It has shifted from being sold in pubs to being sold by supermarkets and off-licences, as the noble Baroness has demonstrated. Action is needed on that front too, so we need business to be involved as well.

I would be grateful if the Minister could find a sensible approach that brings people together. I hope we will find a way forward that starts to solve the new problems that were never envisaged when the Act was first introduced.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I begin by congratulating my noble friend Lady McIntosh of Pickering on securing this important debate. I thank all noble Lords who have spoken for their varied and thoughtful contributions. I also thank the committee for its thorough and detailed scrutiny of the Licensing Act 2003 and for the very comprehensive report it produced.

This debate is important for many reasons. First, the costs of alcohol-related harm are estimated at some £21 billion each year. Crime survey data show that in around 40% of all violent incidents, the victim believed the perpetrator to be under the influence of alcohol, as the noble Lord, Lord Kennedy, pointed out. He also mentioned the pernicious effect of alcohol in exacerbating incidents of domestic violence, which the Government are very keen to deal with. Alcohol-related hospital admissions and the incidence of certain alcohol-related health conditions have all increased; although alcohol-related death rates have remained relatively stable in recent years, the rate in 2015 was still higher than that observed in 1994. However, as was pointed out by both the noble Lord, Lord Kennedy, and my noble friend Lord Smith, the production and sale of alcohol is important for the UK. Pubs are woven into the fabric of our nation and continue to be places where we meet our family and friends. The continued success of our alcohol and pub industry is definitely in everyone’s interest.

The committee made a total of 73 recommendations and conclusions in its report. The Government did not accept all of those recommendations outright. However, the committee highlighted a number of important issues that need to be addressed to ensure that the Licensing Act remains effective. Although we may not have accepted all the committee’s recommendations, the Government are committed to address many of the issues that the committee highlighted. I want to focus my response to this debate on how the Government are responding to the issues raised by noble Lords.

Many noble Lords, including my noble friend Lady McIntosh of Pickering, talked about planning and licensing, as well as the experimental merger of local authority licensing committees and sub-committees with planning committees, as mentioned by the noble Lord, Lord Blair. We have not accepted that recommendation; interestingly, the views of noble Lords in the House from the local government perspective perhaps indicate why. Although the basic structures of the two regimes are similar, they have fundamentally different purposes. It is for local authorities to determine how they organise committees to deliver their statutory functions and meet the needs of their communities. The legislation already allows that where a matter relates to a licensing function and to another function of the local authority—planning, for example—the matter may be referred to either committee. This allows for the licensing committee to discharge functions other than licensing matters and, vice versa, for a planning committee to discharge a licensing function.

However, we accept the important points raised by the committee on the effectiveness and consistency of implementation of licensing processes and decision-making across local areas. We agree that improvements in practice could be made. Instead of transferring the functions of licensing committees to planning committees, we are focusing on improving training and providing stronger guidance on how licensing hearings should be conducted. There is good practice in many local areas that we will build on and we will work closely with partners—the Institute of Licensing and the Local Government Association, in particular—to assess the training needs for councillors and the police and, where appropriate, to develop specialist training programmes with partners. My noble friend Lady McIntosh of Pickering said that licensing appeals should not be heard by local magistrates. We have noted the committee’s comments on the appeals process. We do not intend to change the system at present; however, we accept the committee’s findings that the licensing appeals system could be approved and we are aware that some local areas find the system unwieldly and prone to delay. We will explore with partners whether there is good practice in the existing regime and similar regimes that might offer some ideas for consideration.

My noble friends Lady McIntosh of Pickering and Lord Shinkwin talked about disabled access. The Government are sympathetic to the issues that have been raised on disabled access and the problems with ensuring that business and service providers comply with the requirements of the Equality Act 2010. Many of us choose to socialise in licensed premises; they are therefore an important part of our daily lives. Too many of those venues are difficult for disabled people to access. However, we agree with the committee that adding to the licensing objectives is not the answer. The Act and the licensing objectives must be used to address issues that apply to the licensable activities, and are therefore unique to licensed premises. The Act should not be used to control other aspects of licensed premises; that would be outside the scope of the licensing regime and contrary to the principles of better regulation. We will consult disabled peoples’ organisations to better understand the extent of the problem from the perspective of people with a broad range of disabilities. We will work with the National Association of Licensing and Enforcement Officers and representatives of the licensing trade to explore what practical measures can be taken. We hope that this will result in significant improvements for disabled people without the need for additional regulations.

The noble Baroness, Lady Watkins, and many noble Lords who have spoken in the debate talked about minimum unit pricing, or MUP. Since the publication of the committee’s report the UK Supreme Court has found in favour of the Scottish Government regarding the introduction of a minimum unit price for alcohol. The committee recommended that, should MUP be found to be effective in Scotland, it should be introduced in England and Wales. Our position remains as detailed in our response to the committee. MUP remains under review pending the impact of its introduction in Scotland and the Government will consider the evidence of its impact once it is available.

The noble Baroness, Lady Watkins, also talked about timescales. Interestingly, the Scottish Government are required to report on the impact of their legislation after five years. It is possible that evidence will begin to emerge before then. As I said, we intend to keep this issue under close review.

[Lord Brooke of Alverthorpe]

Wales has taken the decision to proceed with introducing a minimum unit price, but it is not entirely free to implement it without the authority of the UK Government. Will it be required to wait until the Scottish review has been completed?

[Baroness Williams of Trafford]

The noble Lord will know that this is not a devolved matter. That is the rationale behind Wales not being able to move on this, but when the Scottish Government review the impact of their legislation I am sure the UK Government will note it with great interest. That is all I will say on that.

The noble Baroness, Lady Watkins, mentioned that HM Treasury committed to introduce a new higher duty band on cider between 6.9% and 7.5% alcohol by volume from 2019. This targeted measure will tackle high-strength white cider to encourage reformulation to lower alcohol levels and to discourage consumption to help reduce the harm associated with these drinks.

Quite a few noble Lords, including my noble friend Lady McIntosh and the noble Lords, Lord Blair and Lord Kennedy, talked about consumption of alcohol at airports. Like the noble Lord, Lord Blair, I was unaware of the airside rules regarding alcohol. We are all aware of them now. The Government share the committee’s view that everyone should be able to enjoy a safe and disruption-free environment when travelling. There are tough penalties in place for being drunk and disruptive on an aircraft, including imprisonment for up to two years or an unlimited fine. Pilots already have the power to deny boarding or to force passengers off the plane if they are drunk and the safety of the aircraft or its passengers is threatened—I am sure we have all seen incidents where that has happened.

Although the number of disruptive events remains small compared with the total passenger numbers, occurrences seem to be on the rise. The Government believe further engagement with airports and airlines is required to consider the full effects of the committee’s recommendation. As part of this work, the Government will issue a call for evidence on the committee’s specific recommendation to assess carefully the practicalities and resources required to implement the Act in these environments, as well as the impact that extending the Act will have on businesses. This call for evidence will be published in the new year.

My noble friend Lady McIntosh also talked about sales to drunks. While the number of people prosecuted for selling alcohol to a drunk is low, it provides a useful tool by which the police and enforcement bodies can remind licensees of their obligations under the 2003 Act. Several areas in our local alcohol action area programme are looking at ways to improve how this is enforced. We are supporting them to identify good practice.

My noble friend also referred to the Alcohol etc. (Scotland) Act 2010, which included a ban on multipack pricing, BOGOF, as she pointed out, or any other offer including free alcohol. It restricts advertising on drinks promotions to designated areas in off-licence premises and requires that all premises introduce a Challenge 25 policy as standard. Research published to date on the impact of the provisions suggest that these restrictions have had a limited impact on the amount of alcohol sold by the off-trade and the manner in which it is sold. Although the research cited by the committee conducted by NHS Health Scotland and the University of Glasgow suggests that the legislation was associated with a decrease in off-trade sales of wine in Scotland in 2013, other studies have shown little or no impact. The Public Health England evidence review also concluded that bans on price promotions are not as effective and are quite easily circumvented.

My noble friends Lady Eaton and Lord Smith of Hindhead talked about the late-night levy, which obviously enables local authorities to collect a financial contribution from businesses that profit from selling alcohol late at night and for the funds that are raised to be used for late-night policing and other costs associated with the night-time economy. Changes introduced by this year’s Policing and Crime Act will improve the late-night levy and aim to increase its use by making it more flexible, fairer to business and more transparent.

I think my noble friends also mentioned the 70:30 split. The guidance on the levy states that there is no bar to a local agreement between the licensing authority and the PCC to vary that split by allocating all or some of the PCC’s share of the revenue back to local authority initiatives. We therefore consider that the split is appropriate. We do not have plans to change it. The Government understand that the levy is also not suitable for all areas. We support areas that decide to introduce other schemes, such as BIDs, which my noble friend mentioned. Councils can offer a levy discount to premises involved in BIDs.

My noble friend Lady Eaton also talked about licensing fees. Recent Budgets have offered business rate relief to pubs following the recent revaluation of business rates. A move to locally set licensing fees or an increase in the centrally set fees at this stage would undermine the assistance that the rate relief has given licensees. The Government therefore considered that now is not the time to make changes to licensing fees, but the policy will be reconsidered in due course.

On health aspects, the committee did not recommend introducing health as a licensing objective. We are broadly in agreement with that position. However, public health teams have an important role to play in the licensing system. That is why they have a statutory role as responsible authorities under the 2003 Act. My noble friend Lord Mancroft also talked about the health aspect of alcohol. Directors of public health in England and local health boards in Wales have been responsible authorities under the Licensing Act 2003 since 2012. As responsible authorities, health bodies are automatically notified of new licensing applications and can make representations based on existing licensing objectives. Licensing authorities can take into account health data where it links to existing licensing objectives such as hospital or ambulance data relating to alcohol-related incidents or injuries. We are encouraging A&E departments to share their data with community safety partnerships through the “information sharing to tackle violence” programme.

The noble Baroness, Lady Henig, and the noble Lord, Lord Foster, were intrigued by the LGA handbook. The LGA is currently writing its licensing handbook. It will be a valuable guidance document for those working in the licensing regime on a day-to-day basis, and it fulfils a role that the statutory Section 182 guidance cannot.

The noble Baroness, Lady Watkins of Tavistock, talked about online sales. It is illegal to supply alcohol to children via any medium. Under the mandatory conditions of the Licensing Act, all licensed premises are required to have an age verification policy in place. Where alcohol is sold online, licence holders need to make sure that age checks are done at the point of delivery to ensure that alcohol is not sold to under-18s. It is therefore the responsibility of the person serving or delivering the alcohol to ensure that age verification has taken place and that photo ID has been checked if a person appears to be less than 18 years of age.

The noble Lord, Lord Brooke, talked about the alcohol strategy or lack thereof, as he put it. We are delivering on our commitments in the modern crime prevention strategy to improve local intelligence, establish effective partnerships and equip police and local authorities with the right powers to take effective action. The second phase of our local alcohol action area programme focuses on local action and demonstrates our commitment to work with industry, police, local authorities and other partners to tackle alcohol-related harms. I think it was the noble Lord who asked who the partners were. They are diverse and include the police, local authorities, children’s and adult services, health partners and licensing bodies such as the Institute of Licensing—that is to name just a few of those with whom we are engaged. The Government keep alcohol policy, including the need for a cross-government strategy, under review.

My noble friend Lord Smith of Hindhead talked about the multiplier. The fee multiplier is applied to premises which predominantly or solely sell alcohol in high volumes. These are often referred to as vertical drinking bars and make up a very small percentage of premises subject to a licensing fee. The high fee reflects the high volumes of alcohol sold in the night-time economy.

The noble Lord, Lord Foster of Bath, asked about the timelines for training. We have begun initial discussions with a number of partners to develop this work and will continue to drive it forward next year. On the Private Member’s Bill and the agent of change principle, I will write to him.

I hope that I have given a fairly comprehensive response to the debate. I thank my noble friend and the committee once again.