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The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien): I welcome this further opportunity to join both sides of the House in commending the decision of my hon. Friend the Member for Pudsey (Mr. Truswell) to introduce this Bill, and his skilful piloting of it through the House. He has built on the work of my hon. Friend the Member for Calder Valley (Ms McCafferty) and others, who also deserve credit for this measure. I am grateful to both sides of the House for their contributions to the debate, which have always been sensible and well thought out. Indeed, throughout the discussions on the Bill, the comments made have been considered, careful and of value.
The Government share the concern of my hon. Friend the Member for Pudsey about the unlawful sale of alcohol to young people. Once again, I am happy to reiterate our strong support for the Bill. The White Paper "Time for reform", which was published on 10 April, showed that we consider the protection of children to be one of the primary purposes of licensing law. The importance of the Bill should not be underestimated.
Because the Government are poised to embark on major reforms of licensing arrangements, it might well be asked, "Do we need this Bill now?" We do, because the process of consulting on the main licensing Bill will take time. My hon. Friend has given us an opportunity to take prompt action on an urgent issue and to change the existing law now. We are grateful to him for that. It will mean that those who evade prosecution for selling to minors and for irresponsibly buying alcohol on behalf of children will be dealt with more effectively without the delay that there could otherwise have been. The two to three years before we have major reform is a period in which children and their families might have suffered unnecessarily if it were not for the Bill. He has given us an opportunity to avoid that prospect.
We agree that our licensing laws are out of date and dreadfully old fashioned. My hon. Friend's Bill focuses on the use of the term "servant". Parliament, at one time, believed that "master and servant" would cover all employees responsible for selling alcohol and thought that the term provided sufficient protection for the general public and for children. Modern case law has stood Parliament's intention on its head. The words have now come to be used only as a means of evading prosecution. We can and should put that right.
My hon. Friend set out the circumstances that led to the tragic death of David Knowles. The case highlighted the problem of those employed by national chains of off-licences. However, there are other problems with the outdated wording. The term "servant" in the existing law does not include an agent who acts on behalf of the licensee, but who is not an employee. 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 alcohol to a 14-year-old was quashed in the divisional court because there was no evidence of a master-servant relationship. Hon. Members will be aware that many high street off-licences are run by families, so it would be wrong if a licensee could evade prosecution by putting responsibility into the hands of his or her spouse. The Bill will address that further loophole.
I take this opportunity to praise my hon. Friend the Member for Pudsey for the amendment that he moved in Committee, which gives the Bill the extra teeth that it needs. It is a sad indictment of our society that there are adults willing to act as the agents of youngsters to enable them to get hold of alcohol. The new offence is another measure to help us to fight the problems of under-age drinking.
The reforms proposed by my hon. Friend are sensible and fair. Hon. Members will note that under the Bill, the offences of selling to minors and buying on their behalf cannot be committed if the adults involved have been genuinely duped about a child's age. In Committee, I explained that the courts should rule on the extent to which adults had behaved reasonably in seeking to establish the child's age and whether they had been deceived.
There must be evidence of age to support a conviction, but evidence about whether the defendant had been reasonably deceived, as opposed to turning a blind eye, would have to be produced by the prosecution. Indeed, the defence may well want to produce such evidence, which, if necessary, may involve producing the child in court. I understand that that has become a common means of establishing either a defence or the case for the prosecution, and is usually the heart of the matter when a not-guilty plea has been entered. Producing the child has the great merit of solid reliance on common sense. If, after seeing the child, the court is of the opinion that the defendant must have turned a blind eye to the child's age, it may well decide to convict.
The right hon. Member for Penrith and The Border (Mr. Maclean) asked about the steps that an employer could take to show a defence under proposed new section 169A(2). He suggested that an employer could show that he had trained his staff and that they had clear orders not to sell to people under 18. He also suggested that the employer could demonstrate that he had shown due diligence in minimising the chances of an under-age person being served. All those things would be material facts for the court to consider. However, deciding what is sufficient is a matter for the court.
Requesting a card would be a material factor which a court could weigh in the balance. The right hon. Gentleman asked whether the employer actually had to do something or whether he could be passive. That depends: it may be clear that the person is under 18--or, more likely, it may be clear that he is over 18. If the right hon. Gentleman appeared in an off-licence, he would not expect the licensee to have to do something to establish that he was of an age at which he could buy alcohol.
Mr. Leigh: May I question the Minister more closely on his interpretation of subsections (2) and (3) of proposed new section 169A? Subsection (3) refers to due diligence and deals with someone who is charged as a result of his employee's fault. It is therefore clear that the employer has to exercise due diligence, perhaps in the way in which he trains his staff. However, subsection (2) makes no requirement of the employee who sells the alcohol to exercise due diligence. Have I got that wrong? I am worried by what the Minister has said, because if the child is produced in court and the court decides that he
appears to be 18, the employee will be let off, as the Bill makes no requirement for that person to exercise due diligence.
Mr. O'Brien: I shall examine the clause with care, but my understanding is that the employee and the employer would both be required to be diligent. Let me advance my argument, and I shall let the hon. Gentleman come back if he wishes.
On the point made by the right hon. Member for Penrith and The Border about due diligence, where a reasonable person would have doubts about the age of the person trying to buy alcohol, a request for information about age or for a card would become material factors in addressing the question whether due diligence was exercised. It is essentially a matter for the court to decide whether the licensee and his staff had behaved reasonably.
Under proposed new section 169A(3), it is for the defendant to prove that he exercised all due diligence. Once the evidence of the purchase has been produced and there is clear proof that the purchase was made, the defendant must prove that he exercised due diligence. The prosecution has the burden of proof in terms of the usual criminal responsibilities. The prosecution does not have to prove that the licensee did not exercise due diligence. It is for the licensee to prove that he did.
Mr. Leigh: I am grateful to the Minister. I know that it is difficult to answer legalistic but vital points. Proposed new section 169A(3) states:
- It is a defence for a person charged with an offence under subsection (1) of this section, where he is charged by reason of the act or default of some other person, to prove that he exercised all due diligence . . .
Mr. O'Brien: I shall consider the hon. Gentleman's point with care. It is my understanding that the Bill would cover that. I shall take advice and respond in due course--[Interruption.] I am grateful to the Under-Secretary of State for the Environment, Transport and the Regions, my hon. Friend the Member for Sunderland, South (Mr. Mullin), who has provided me with the answers with due speed and due diligence.
Proposed new section 169A(2) refers to the person who is selling, and subsection (3) applies to the employer. The aim is that both would be required to show that they had no reason to suspect that the person who bought the alcohol was under 18. The employee would have to show that, and the employer would have an obligation to show that he had exercised due diligence to avoid the commission of an offence. That is the approach that would be taken.
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