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Mr. Heald: There is obviously quite a bit of concern in the House on the question of internet sales and the use of credit cards. I of course accept the Minister's explanation that, as yet, there is no evidence of such sales in large numbers, but might the Home Office want to undertake some research into the matter?
Mr. O'Brien: We looked at many issues in the context of the White Paper and a research budget has been allocated for this financial year. That issue is certainly one that we will want to bear in mind. I suspect that the way in which to approach the matter is, first, to see what evidence arises as a result of consultation on the White Paper. If it transpires that issues do arise, we shall consider instituting specific research. Given the nature of the way in which young people use the internet, it is difficult to identify now how we might set up a research project, but if the police or other authorities say that there appears to be a problem, we shall consider how best to deal with it--that might well involve legislative provisions as part of a wider licensing Bill.
The amendments proposed by my hon. Friend the Member for Garston would change significantly the defence available to a licence holder or member of his staff who was prosecuted for selling alcohol to a person aged under 18. It would have to be proved that the offence had been committed knowingly, and the defences of having no reason to suspect that a person was a minor and of having shown due diligence in seeking to establish the age of a person would disappear. I remind the House of the purpose of the Bill: David Knowles, a constituent of my hon. Friend the Member for Pudsey, died in tragic circumstances following the consumption of alcohol purchased from an off-licence. The facts are not disputed, but, as we all know, those involved evaded prosecution because there is a loophole in the law. The Bill, as amended in Committee, would close that loophole. The House must ask itself whether, having closed it and so made prosecutions more likely in future, it wants to make it more difficult than it currently is to secure a conviction.
The right hon. Member for Bromley and Chislehurst wants to extend the offence of allowing alcohol to be sold to a minor to that of facilitating a sale--although, in the course of his exposition, he appeared to withdraw from that position to some extent. However, that would alter the whole thrust of that provision, which deals with those who have control or authority over others selling in licensed premises, and ensures that a manager or licensee cannot evade his responsibilities by turning a blind eye to his staff's actions: if they commit offences, he risks being prosecuted as well. The notion of facilitation offers a different perspective: how does a manager "facilitate" a person to sell? I am not sure that the prosecuting authorities or the courts would understand Parliament's intention if that wording were adopted. Without time to consult the Magistrates Association and practising layers, I am reluctant to support such an extension of the offence. I note that the right hon. Gentleman said that he would not press the amendment, and I am grateful to him for that. However, I can assure him that it is a matter that could be considered as part of the broader licensing review.
Although they deal with the offences and triggers for the available defences in new sections 169A(3) and 169B(1), the amendments proposed by my hon. Friends the Members for Kilmarnock and Loudoun (Mr. Browne) and for Dumfries return us to the question of the loophole in the law that has been exposed on many occasions during deliberations on the Bill by my hon. Friend the Member for Pudsey. He set out the circumstances that led to the tragic death of the child in his constituency, which involved those employed by national chains of off-licences. However, there are other problems arising from the outdated wording.
The term "servant" in existing law does not encompass an agent acting on behalf of a licensee who is not his employee. Therefore, for example, the wife or husband of a licence holder working in an off-licence in an unpaid capacity may be immune from prosecution for selling to under-age children; similarly, a brother or other family member serving in the shop could escape prosecution. In 1996, the conviction of the husband of a licensee for selling to a 14-year-old girl was quashed in the divisional court, because there was no evidence of a master-servant relationship--[Interruption.] The right hon. Member for Bromley and Chislehurst laughs; he appears to be confused about the nature of the state of matrimony.
The House will know that many high street off-licences are family run, and it would be wrong if a licensee could evade prosecution by laying the responsibility for the sale on his or her spouse. As the wording chosen by my hon. Friend the Member for Pudsey covers every eventuality and so closes the loophole, I ask the House to support the original wording.
My hon. Friend the Member for Garston proposed an amendment that changes the offence set out in section 168B(1). The sale would have to be made knowingly, and there would be an alternative offence of being "recklessly indifferent" to sales made to under-18s. I have some concerns about the proposal. I am sure that my hon. Friend is familiar with the legal maxim that the state of a man's mind is as much a matter of fact as the state of his digestion. In other words, the state of a man's mind can be established by evidence in a court of law.
The current offence is knowingly to allow a person to sell alcohol to a minor. That implies two things: the offender had the authority to prevent the sale and, knowing the purchaser to be under age, permitted the sale to take place. Those are simple concepts, well known to, and understood by, the courts.
The term "knowingly" occurs in other statutes. For example, I know from previous departmental responsibilities that it is an offence under immigration law knowingly to remain beyond the time limit attached to one's leave to enter or remain in the United Kingdom. The concept of reckless indifference is less well known and less well understood.
I understand what my hon. Friend is trying to achieve and the advantages. The proposed wording would prevent the licence-holder from turning a blind eye to the actions of his staff. He may know that the sale is taking place, but choose to ignore it. He therefore neither allows nor prohibits the sale.
I shall deal now with the use of the word "agent" and how it would trigger the defence in new section 169A(3). The terminology "employee or agent" is worrying. Would it mean the defendant's employee or, if the member of staff was the employee of a national chain, would the defence in new section 169A(3) not be available?
That takes us back to the troubled area that gave rise to the Bill. We must avoid any possible confusion. The wording "any person" is all-embracing and covers every eventuality. The change of definition in new section 169B(2) does not help in regard to our concerns, and I therefore ask that the amendment not be pressed.
I shall say a little more about the word "knowingly". The hon. Member for North-East Hertfordshire set out his view that that word was enormously important in new section 169B. I agree with his analysis. The contractual relationship is the key one. I hope that colleagues who are advancing the amendments will take account of the hon. Gentleman's point that "knowingly" is important in that section and is not necessary in new section 169A.
With regard to under-18s buying, or attempting to buy, alcohol, amendments have been proposed to extend that by adding the words "or otherwise obtain". The offence would still be confined to licensed premises and, under new section 169F(2), would apply to the delivery of alcohol sold in licensed premises. As I said earlier, I understand that under-18s cannot hold credit cards. We must deal with the issue with which we are presented. Suppose the 16-year-old son of a licensee asked his father whether he could have a can of beer from the stock to drink with his meal in the flat upstairs. Does he commit an offence under the expanded wording? That must be carefully considered; we have not yet had the opportunity to do that. I assure hon. Members that I shall examine that matter when considering general reform of the Licensing Act. However, I shall not accept the words "or otherwise obtain".
We do not have a problem with under-18s using credit cards. It is not an issue that we must tackle immediately. It is better to remain within the narrow and focused remit that my hon. Friend the Member for Pudsey proposed in the Bill.
Amendment No. 37, which my hon. Friend the Member for Reading, East (Jane Griffiths) tabled, would extend proposed section 169E(1) to the whole of any licensed premises. That means that a minor would commit an offence if he or she drank a pint of beer in a family room or pub garden. The amendment's effect would therefore be enormously significant. The Government believe that the law must be clarified so that the consumption of alcohol anywhere on pub premises is clearly lawful where it is accepted but unlawful otherwise. However, amendment No. 37 would require the exception in new section 169D to be extended to 169E(1).
The balance between freer access to licensed premises by minors and tough laws to prevent under-age consumption on the premises needs to be examined in a broader context than the Bill. While I have some sympathy for the sentiments behind amendment No. 37, I should like the opportunity to get the balances right. In doing that, I want to consult the industry, the police and magistrates about the proposal before reaching a conclusion. I therefore ask my hon. Friend the Member for Reading, East to consider not to press her amendment.
My hon. Friend the Member for Brent, North asked whether a Member of Parliament would commit an offence under proposed section 169F if he supplied a bottle to a raffle that was won by a minor. The question presupposes that the House is considered licensed premises, which it is not. The distinction between being a Member of the House and working here is a moot point, which might lead to some legal argument. We know that my hon. Friend works hard and we therefore give him the benefit of the doubt. However, he would have to have an opportunity to prevent the delivery of the raffle prize to the minor. My hon. Friend might well deliver the bottle to the charity or the fete, but he would subsequently have no authority to prevent the onward delivery of the bottle to the winning minor. It could therefore be argued that my hon. Friend had a probable defence against that difficulty. I hope that that relieves his anxiety.
Amendment No. 10, which my hon. Friend the Member for Garston tabled, would remove the word "knowingly" from the offence of allowing a person under 18 to consume alcohol in a bar and amendment No. 11 would substitute the defences that are in proposed section 169A(2) and (3) for that in proposed section 169E. There is no doubt that that would make it easier to secure a conviction. However, the offences in proposed sections 169A(1) and 169E(1) are fundamentally different.
Proposed section 169A(1) covers the sale of alcohol to a person under 18. That is wholly under the control of the retailer. If he does not know the age of the purchaser, he does not have to sell. If he takes a risk, he knows the potential penalty, including the risk to his licence. Proposed section 169E(1) covers allowing consumption by a minor in a bar. A bar is a specific area that is agreed by the licensing justices; it is almost certainly not the whole of the premises. Children aged 14 or over may be present in a bar area, although they may not consume alcohol. The youngsters' presence may be entirely legal.
In a crowded bar, an adult may purchase two drinks: a lemonade and a vodka and tonic. He or she may take the drinks to a table in the bar and give the vodka and tonic to a 16-year-old and keep the lemonade because he or she is driving. No direct transaction with the minor will have taken place. How does the licensee know what the clear liquid being drunk across the bar is? The landlord's criminal responsibility is often uncertain because of the great variety of circumstances that may surround under-age consumption. The offence is therefore not the same as a direct sale. It is perfectly reasonable to suggest that a conviction would be hard to secure.
We do not want to create an offence that forces licensees to deny access to their pubs to anyone under 18, even if they are there to consume soft drinks with their parents. That would be the risk if the licensee felt vulnerable to unreasonable prosecution. It is a matter of getting the balance right. Such amendments would unbalance the legislation and produce unnecessary,
My hon. Friend also wants to substitute "knowingly" for "recklessly" in new sections 169E(2) and 169G(1) of the 1964 Act. In the first instance, that would mean that a person working in a bar would commit an offence only if he recklessly allowed a person under 18 to consume alcohol. In the second, an adult who sent a child to buy alcohol would commit an offence only if he had acted recklessly.
I have already explained that the courts know and understand the word "knowingly", but establishing reckless behaviour certainly seems more obscure. I should prefer not to risk making a conviction less easy to secure by introducing terminology of uncertain effect. The term "reckless" would imply that sending a child to buy alcohol from an off-licence could somehow be reasonable and lawful. The issue is not the degree of reasonableness, but the extent of the person's knowledge. If he knows that he has sent a child to make the purchase, he has little or no defence open to him. If, as the result of a misunderstanding, the adult does not realise that that is what the child has gone to do for him, a defence is available. Recklessness is an altogether different animal. I am confident that the drafting would not cause problems. Therefore, I ask my hon. Friend not to press the amendment.
On amendment No. 53, which deals with the House of Commons, I understand that the House is exempt from the provisions of the 1964 Act by convention, because of the 1935 case Regina v. Graham-Campbell, ex parte Herbert, which makes it clear that licensing law does not apply to Parliament. It is not so odd or exceptional as it might appear that we are able to operate our own licensing procedures. Registered clubs, sports and social clubs and others already operate under somewhat different regimes from unlicensed premises. They operate with a registration certificate and their sales rules are different.
The hon. Member for Lichfield asked when Members of Parliament are subject to criminal law and when they are not. The purpose of amendment No. 53 is to bring the House within the legislation. The position is somewhat complex, but I understand that Members are fully liable for any offence committed outside this place. However, the House has privileges in respect of the exclusive cognisance of its procedure and proceedings, especially on freedom of speech. He would not be liable for what he said during proceedings, but he would be unwise to claim that a crime--other than one that relates to licensing or another specific exclusion--would not be prosecuted if committed in the precincts, because I suspect that the House would take the view that it should. Indeed, Lord Cochrane claimed privilege when he was arrested in the Chamber of the House of Commons in 1815, but his claim was rejected on the grounds that he had committed offences and was being properly arrested.