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Session 2007 - 08
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Public Bill Committee Debates

Guidance Issued Under Section 182 of the Licensing Act 2003

The Committee consisted of the following Members:

Chairman: Mr. Roger Gale
Benyon, Mr. Richard (Newbury) (Con)
Clapham, Mr. Michael (Barnsley, West and Penistone) (Lab)
Davies, David T.C. (Monmouth) (Con)
Dowd, Jim (Lewisham, West) (Lab)
Drew, Mr. David (Stroud) (Lab/Co-op)
Foster, Mr. Don (Bath) (LD)
Johnson, Ms Diana R. (Kingston upon Hull, North) (Lab)
Mackinlay, Andrew (Thurrock) (Lab)
Owen, Albert (Ynys Môn) (Lab)
Shepherd, Mr. Richard (Aldridge-Brownhills) (Con)
Strang, Dr. Gavin (Edinburgh, East) (Lab)
Sutcliffe, Mr. Gerry (Parliamentary Under-Secretary of State for Culture, Media and Sport)
Syms, Mr. Robert (Poole) (Con)
Todd, Mr. Mark (South Derbyshire) (Lab)
Vaizey, Mr. Edward (Wantage) (Con)
Wyatt, Derek (Sittingbourne and Sheppey) (Lab)
Younger-Ross, Richard (Teignbridge) (LD)
Geoffrey Farrar, Committee Clerk
† attended the Committee

Fifth Delegated Legislation Committee

Thursday 29 November 2007

[Mr. Roger Gale in the Chair]

Guidance Issued Under Section 182 of the Licensing Act 2003

8.55 am
The Chairman: There are a couple of housekeeping issues to deal with before we start. Hon. Members may remove their jackets if they wish to do so. Superficially, this is a wide-ranging debate, but in fact it relates specifically to the guidance issued under section 182 of the Licensing Act 2003. I am perfectly willing to listen to reasonably broad-ranging arguments, but I am not prepared to listen to another Second Reading debate on that Act. Having entered that caveat, I call Mr. Don Foster.
8.56 am
Mr. Don Foster (Bath) (LD): I beg to move,
That the Committee has considered the guidance issued under section 182 of the Licensing Act 2003.
I am delighted to have the opportunity to discuss this guidance. Before saying anything further, may I apologise to you, Mr. Gale, and to the rest of the Committee? I want to raise a large number of points that relate specifically to the guidance, but I assure the Committee that I will do my best to get through as many points as quickly as possible to give other hon. Members an opportunity to speak and to give the Minister plenty of time to respond—positively, we hope—to them.
This guidance was issued in June 2007. It is the result of consultation following the initial guidance that was offered back in July 2004 after the Licensing Act was passed in 2003. The new guidance is an improvement on the previous guidance, but there are quite a number of grey areas that need clarification. I shall come on to that matter, but I genuinely believe that the guidance has failed to take properly into account the licensing climate in this country.
It is worth reflecting on the fact that, in the introduction to the guidance, the former Secretary of State for Culture, Media and Sport, the right hon. Member for Dulwich and West Norwood (Tessa Jowell), says that the 2003 Act has helped to
“create safer and more civilised evening and night-time economies.”
Evidence as to whether that really has been achieved and that the statement is accurate is mixed. Only yesterday, the British Beer and Pub Association issued a press release covering research conducted for it by YouGov. That research, mainly relating to pub-goers, states that “flexible hours” in pubs
“are starting to have a beneficial influence on behaviour and experience”.
That appears to support what the former Secretary of State said. However, there is a lot of evidence on the other side of the argument.
The Under-Secretary is well aware that the Department’s motto, “Improving the quality of life for all”, is so important to it that it appears on the front cover of the guidance, yet research evidence suggests the opposite: the 2003 Act is not improving the quality of life for all. Without my going through all the statistics, Committee members will be aware that there is a huge increase in the number of alcohol-related admissions to accident and emergency units at our hospitals. There is a growing number of alcohol-related acts of violence. We know from a number of groups that worked together and launched a campaign just two weeks ago that, in the two years to 2006, there was a 36 per cent. increase in alcohol-related liver cirrhosis. Indeed, we are now the only developed country in the world with a rising incidence of alcohol-related liver diseases. Each year, 150,000 people are admitted to hospital suffering from alcohol-related injury or disease. Sadly, about 22,000 people die prematurely as a result of alcohol-related incidents. Furthermore, many of us have experienced problems in our towns and cities as a result of yobs binge drinking and behaving appallingly. My point is quite simply that the evidence on whether the previous Secretary of State was right is mixed, and in considering the guidance, which offers local authorities advice, support and help, we should ask whether they have been given sufficient power and support to deal with these increasing problems.
Before I move on to the specifics, I want to deal with another issue of deep concern. Some would argue that sufficient legislation is already in place to deal with these growing problems, but the real problem is that it does not appear to be used as effectively as it could be. It is worth reflecting on the fact that it is a criminal offence to sell alcohol to somebody who is already drunk or to allow drunken behaviour in a licensed establishment. However, there have been only 52 successful prosecutions for those offences in the past nine years. It is also illegal to sell alcohol to under-age individuals, but figures in a recent Government study—[ Interruption. ]
The Chairman: Order.
Mr. Foster: I apologise, Mr. Gale, on behalf of the hon. Members for Newbury and for Wantage.
Recent Government figures showed that 40 per cent. of premises sold alcohol to one or more under under-age individuals. The guidance states:
“We were criticised by some for our conviction that these major changes would have a positive impact...and support our wider strategy for tackling crime and disorder, under-age drinking, public nuisance and anti-social behaviour.”
Given the figures that I have just read out, however, I suspect that many people would say that we were right to remain critical. I note with great interest the fact that the Prime Minister himself said only a few days ago that he wants a clampdown on some of the problems that I have outlined.
I am particularly pleased by five changes. The first relates to so-called vicinity. There has been real concern that many local authorities thought it appropriate to use the physical distance from a licensed premises to determine who should be consulted about any changes to its licence. When those concerns were initially raised, the Government made it clear that it was not necessary to keep to a fixed distance and that local authorities should judge who might reasonably be expected to be influenced by a licensing change. Despite that, however, concerns remain. The issue is now firmly on the record in the guidance, and I hope that the Minister will confirm once and for all, so that there is total clarity, that it is for local authorities to determine who might reasonably be expected to be affected by a licensing change and who is entitled to be consulted.
Another change will delight members of the Committee who, like me, have been involved in local government. For a long time, there was a belief that local councillors were barred from talking about a licensing issue in the ward that they represented. I am delighted that paragraphs 8.8 to 8.11 provide a greater opportunity for local councillors with such interests to participate and speak about such issues. I am delighted, too, that paragraphs 1.23 and 1.27 place increased responsibilities on those responsible for licensed premises to take steps to control crime and disorder outside their premises. I am sure that that is welcome to all. An important issue that has been raised since the Act was introduced was whether local authorities had to presume that an extension in trading hours should be accepted unless there were major objections to, or criticisms of, such a proposal. That presumption in favour of an extension was of concern to many people. The former Secretary of State wrote to local councils to clarify the matter, and said that such a presumption should not exist. We welcomed that at the time, and I welcome the fact that the issue has been raised in the guidance.
That is covered in paragraph 10.20 of the guidance on trading hours but, bizarrely, it is not referred to in paragraph 1.17 on opening hours, which is where most people would expect to find it. For the avoidance of doubt, it should be covered in both paragraphs when the guidance is updated. I welcome the reference in paragraphs 9.3 to 9.19 to people who support an application and their ability to make a positive statement. That provides a balance in the information before a licensing committee when it makes a decision, and is greatly to be welcomed.
I was hoping to add minor variations to the list of provisions that I support. I welcome paragraphs 8.33 to 8.38, which state that there should be a fast-track system to make minor variations to a licence. Of course, we want to get rid of bureaucracy and red tape, and to save money for licensees who want to make minor variations to their arrangements. That would be fine had I not discovered yesterday, when I was preparing for this debate, that the Department has just issued a press release on this very issue with the title, “Legislative Reform Order: Proposal to Introduce a Simplified Process for Minor Variations to Premises Licences and Club Premises Certificates”. It is specifically about the guidance—[ Interruption. ] and the Minister has confirmed that that is so. However, it goes well beyond what is in the guidance.
The Chairman: Order. I am sorry to interrupt the hon. Gentleman, but I am mildly concerned. If a press release that is relevant to this morning’s discussions has been issued, it should have been made available to the Committee. I have certainly not received a copy, and I am not aware that Committee members have done so either. Will the Minister clarify the matter?
The Parliamentary Under-Secretary of State for Culture, Media and Sport (Mr. Gerry Sutcliffe): Certainly, Mr. Gale. The consultation document that was released by the Department yesterday in the normal course of events under the review of the Licensing Act. We have plans to look at certain aspects of the Act, and a draft consultation has been prepared. Accompanying that consultation is an announcement of what we intend to do. I shall ensure that Committee members receive copies of that announcement, but it is not pertinent to the guidance that we are considering today. It is a consultation document, and further guidance will be developed as a result of that consultation.
The Chairman: It is not the Chairman’s job to challenge the Government, but it is for Ministers to make information available. I appreciate the Minister’s clarification, and if hon. Members believe that the document should be made available, it is for them to raise the matter through the usual channels.
Mr. Foster: Thank you Mr. Gale; I am grateful for that clarification from the Minister. The item is clearly relevant to the debate, because of the proposal to consult on possible changes to the fast-track procedure. That would take us beyond the guidance that is before the Committee, although the vast majority of the contents of the press release are about it. The consultation is mainly on what we are about to agree, or disagree on, today, which is slightly bizarre. However, the document goes slightly beyond that.
I find it surprising that some of the proposals are considered to be minor variations. I have a specific question, the answer to which will inform our decision on how to vote on the guidance. First, however, may I make it clear that the two examples that I shall give from the statement issued yesterday are not covered by the arrangements for fast-tracking in the guidance? One is an example of what is considered a minor variation—an isolated rural pub in a remote location, which applies to open one hour longer at night. I hope that the Minister will change the wording, because he will discover from ministerial colleagues in other Departments that no one has yet been able to define “isolated rural areas”. If the Minister has a definition, I know that several of my colleagues would like to hear it. None the less, he will recognise that in such circumstances the result might well be that on rural roads, with individual houses scattered around, there would be more cars late at night than there would otherwise be. That strikes me as an example of the type of issue that should continue to be the subject of consultation.
The second minor variation is even more bizarre, given what the Prime Minister has been saying lately. It is
“a supermarket applying to bring its licensing hours up to the general opening hours in which it retails other goods”.
If a supermarket that is open for 12 hours and sells alcohol for eight hours extends its alcohol sales for another four hours, that is considered a minor variation, even though the Prime Minister wants to crack down on the sale of alcohol, particularly cheap alcohol in supermarkets. Will the Minister tell me categorically that those two examples are not part of the thinking behind the guidance, and that they would be added only at a later stage, subject to consultation?
The next key issue that I want to discuss is live music. Before the 2003 Act was passed, the Government claimed that it would enhance the music scene. Lord McIntosh of Haringey, formerly a spokesman for the Department for Culture, Media and Sport in another place, said that he expected
“an explosion of live music”—[Official Report, House of Lords, 26 November 2002; Vol. 641, c. 736.]
as a result of the legislation. He said that he would be
“astonished if there were not a significant increase in the proportion of pubs putting on live music as a result of this Bill.”—[Official Report, House of Lords, 3 July 2003; Vol. 650, c. 1061.]
The Licensing Act, as the Committee knows, abolished the two-in-a-bar rule and replaced it with a none-in-the-bar rule, with a vaguely worded exemption for incidental music. To help establishment owners and events organisers decide whether a licence is needed, the local licensing authority is on hand to offer advice based on the Licensing Act and the guidance, both of which are vaguely worded and confusing. They were vaguely worded and confusing in the original version, and in the version before the Committee today they are still vaguely worded and confusing. As a result, the live music forum claims that local authorities are over-zealous and at times wrong in their interpretation of the Act and guidance, usually erring, understandably, on the side of caution.
Consequently, the explosion of live music that was predicted has not occurred in small and amateur venues. That is not local authorities’ fault—it is a result of the Government’s failure to define incidental music properly. The guidance received criticism from the live music forum, the House of Lords Select Committee on the Merits of Statutory Instruments and the Better Regulation Commission. Even DCMS Ministers, as I will show in a second, admit that there is a problem with the definition of incidental music, which they have not yet sorted out.
During the consultation that resulted in the new guidance, the Better Regulation Commission said:
“We find it alarming that the Government is unable to clarify its intentions and explain to those affected by its own legislation what they are required to do.”
“While the Department has included amendments to the definition of incidental music in the current review of the Section 182 Guidance to local authorities...we do not feel that this measure alone will provide the necessary clarity, or more importantly, the certainty needed by local authorities, the licensed trade or anyone else who wishes to comply with the law.”
After the revised guidance was published, the Merits Committee argued:
“Some definitions have been clarified...but we regret that some could not be made clearer and so may impose a burden on the courts until sufficient precedent is established.”
The new guidance has therefore not got things right.
Councillor Geoffrey Theobald, the chairman of LACORS—the Local Authorities Co-ordinators of Regulatory Services—said:
“Where problems have arisen, the report”—
by the live music forum—
“quite clearly says they are a direct result of council officers having to make difficult judgements based on less than clear legislation and guidance. If the new licensing regime is to realise its full potential, the government must make sure these grey areas are removed.”
It is the Government’s responsibility to deal with this issue, and they have admitted as much. As recently as 15 October, after the guidance was published, Lord Davies of Oldham said in another place that the Government.
“have problems with the definition”,
He continued:
“That is part of the consultation process and of the work that we still have to do.”—[Official Report, House of Lords, 15 October 2007; Vol. 695, c. 604.]
We are expected, however to approve the guidance, which even Ministers admit does not fit the bill
We therefore want the Department to review the live music situation and sort out the grey areas. We need to look at how to balance the interests of residents and of small and amateur venues that want to offer live music. We need to explore the definition of incidental music and consider whether there should be an exemption for small venues or unamplified music. We need to work out whether there is a qualitative difference between live amplified band music and recorded music, and whether health and safety regulations offer local authorities sufficient control. In short, the guidance does not cover many outstanding issues, which makes things difficult for local authorities and for those who wish to see the explosion in live music that Lord McIntosh talked about.
The research into live music by the British Market Research Bureau was commissioned by the DCMS to tell us whether an explosion in live music had taken place. Mysteriously, however, that research has not been published yet, so perhaps the Minister can tell us where it is. The Government have now received the live music forum’s report on the guidance and they will presumably issue a response, but where is it and when will we see it? Speaking in another place on 15 October, Lord Davies said:
“The department is...taking forward other proposals that may benefit live music”—[Official Report, House of Lords, 15 October 2007; Vol. 695, c. 607.]
Perhaps the Minister can update us on those proposals so that we can all have the benefit of knowing what they are. So many questions, so few answers.
Paragraphs 2.32 to 2.40 of the guidance deal with public nuisance, and I should like to discuss in particular the role of local authorities in determining the award of a licence. The guidance says that authorities should consider the nuisance impact of licensable activities and notes that the nuisances likely to be considered
“will mainly concern noise nuisance, light pollution, noxious smells and litter.”
However, the next paragraph makes it clear that that is not an exhaustive list. It points out that while in many other pieces of legislation, nuisance is tightly defined, in the Licensing Act 2003, the definition retains its broad common law meaning.
The list of what constitutes a nuisance is not exhaustive, and I urge the Minister to see whether or not other matters should be considered. For example, in considering a proposal for a licence for premises on a narrow lane in a rural area, or a proposal to extend licensing arrangements for such premises, is the increased traffic moving back and forth to the licensed premises regarded as a nuisance in certain circumstances? The answer to that question that will help to clarify what we mean by nuisance.
The Licensing Act requires someone holding a licence to be known by the local authority, because it is local authorities that issue licences. Amazingly, there is no national register of personal licence holders, so if a licence holder commits an offence, such as serving someone who is under age, their licence is not necessarily taken away. They could move to another local authority area, and unless they chose to tell that licensing authority about the offence, it would have no knowledge of it. There are many other reasons why it is critical that we should have, as the Government promised, a central register of licence holders. Such a register would make it much easier for the police and local licensing authorities to crack down on unscrupulous behaviour and to ensure that we know who is doing that job.
It is perfectly possible to provide a national register—the Security Industry Authority has such a register, as does the Gambling Commission. The Department makes reference to the matter in the guidance:
“The Government, supported by licensing authorities, aims to develop a central licensing register which will, among other things, include details of all personal licence holders. Future developments relating to the creation of a central licensing register will be reported on the DCMS website.”
I looked for full details of the proposal, but could not find them, so will the Minister acknowledge, first, the need for such a register? Secondly, will he commit the Government to producing one and, thirdly and most importantly, update us on progress towards its production?
Can local authorities help to something about that? Can they do anything about the cheap alcohol sold in supermarkets, often below cost price? The guidance is incredibly confusing. Paragraph 10.38 says that it is not possible to impose a general ban on things as happy hours and that it would be unlawful to promote a voluntary scheme in the local authority area. In other words, local authorities cannot promote schemes, cannot do anything on their patch about happy hours or other things, and cannot promote a voluntary code. However, paragraph 10.39 says that it is lawful to promote or encourage an industry code, so if the industry comes up with a scheme to ban happy hours, the local authority can promote and encourage it, but according to the previous paragraph, it would be illegal to support and promote a locally developed scheme. That is the interpretation given by lawyers who have checked this out.
In paragraph 10.40, we reach a situation in which a ban on happy hours or even a requirement on the size of glass in which wine is served can be imposed on individual premises. Such measures cannot be imposed on all premises, but they can be imposed on individual premises. A scheme cannot be agreed locally, but an industry code can be imposed. I trust that the Minister will explain why.
Mr. Sutcliffe: I am grateful for the opportunity to say a few words on this issue in case it is overlooked in the winding-up speeches. Competition law is at stake. The hon. Gentleman will be aware of the supermarkets’ position on selling milk and the problems that have arisen. We cannot have local authorities breaking competition law. I think that this is a developing issue, and we must be very careful about it. People want industries to have voluntary codes, but those codes could be seen as anti-competitive and therefore against the law. There is no way in which we would allow local government to break competition law. I hope that the hon. Gentleman would not advocate such a practice.
Mr. Foster: I accept the Minister’s interpretation. Indeed, reference is made in the notes that accompany the guidance to the problems created by competition legislation, but will he explain paragraph 10.39, which states:
“However, it is acceptable for licensing authorities to encourage adoption locally of voluntary industry codes of practice which cover irresponsible drinks promotions such as that produced by the British Beer and Pub Association”?
Authorities can promote something that will stop happy hours in a particular local authority area, yet if the same thing were proposed by pubs in the area, they could not do so. Why does one of those actions breach competition law and the other not?
Mr. Sutcliffe: Because there is a definition in relation to competition legislation. Clearly, we cannot have an ad hoc position in which something can happen in one part of the country but not in another: competition law has an overall application.
Mr. Foster: It sounds as though I am intervening on the Minister now, but there could be a situation in which my local authority promoted the British Beer and Pub Association’s code of conduct on happy hours, but the neighbouring local authority did not promote and encourage it. Surely then there would be exactly the same problem of one local authority promoting its own code and the other not doing so. I fail to understand the difference in respect of competition law. If the Minister would explain it to me, I should be grateful.
Mr. Sutcliffe: I think this may help—but perhaps not. Paragraph 10.38 says schemes cannot be promoted for the fixed or minimum pricing of drinks. I think that pricing is the key element. Paragraph 10.39 says that the industry can be encouraged at local level to define in a voluntary arrangement what is generally responsible and what is not. That guidance has a more general application than price alone. We could discuss arrangements, but I do not think that that would be helpful at this stage. I will return to the matter raised by the hon. Gentleman in my winding-up speech.
Mr. Foster: The Minister has been very generous in attempting to explain the issue. His final remarks indicated that he is not convinced even by his own response, but he has helpfully offered to me and, I am sure, to all members of the Committee. Perhaps that correspondence could be circulated to licensing authorities, as it is not I who needs information but the local authorities that must interpret the legislation, and I do not think that the current guidance is helpful to them.
The previous Secretary of State says clearly in the introduction to the guidance:
“I am confident that this revised version of the Guidance will encourage the spread of best practice and help to ensure even greater consistency of approach across licensing authorities.”
Good practice does not spread unless somebody makes an effort to spread it. My question to the Minister is simple. Having said that they are confident that good practice will spread, what are the Government doing to ensure that examples of good practice are gathered and circulated to all local authorities to help solve some of the problems with the night-time economy? I am aware that LACORS has done some work, but what have the Government done?
We are all eagerly waiting to see what will happen to another of many new Government initiatives—alcohol disorder zones. We are told that they will be implemented in January, yet nobody seems to know anything about them. I remind the Minister that Christmas is approaching, and January comes soon afterward, so we would grateful for information. I apologise to the Committee for taking a long time. I hope that I have made it clear that anybody who believes that this guidance is better than the previous guidance is right, but anybody who believes that it is perfect is wrong. It contains many grey areas, whether in respect of nuisance, live music or what local authorities can do. I look forward to the Minister’s response, but for the time being we are concerned about, and critical of, the grey areas in the guidance.
The Chairman: Before we embark on debate, which will be limited by time, I caution the Committee against rambling down a path that I might inadvertently have signposted myself. The hon. Member for Bath referred to a press notice issued yesterday that has not been circulated to the Committee and asked the Minister to clarify the fact that it is not part of the document before us. The Minister has effectively done so, and will undoubtedly do so again in his response.
It is perhaps a slightly unfortunate coincidence that the Department issued the notice yesterday. Government business being what it is, the game moves on. We may be considering a document that is slightly historic, but whether or not we are, the fact of the matter is that that is the guidance that we are considering. I advise the Committee that discussing matters not contained in the documents before us will be out of order.
9.34 am
Mr. Edward Vaizey (Wantage) (Con): I am delighted to have the chance to discuss briefly the guidance issued under section 182 of the Licensing Act. I agree with an enormous amount of what the hon. Member for Bath said— [ Interruption. ]
The Chairman: Order. Baroness Williams cannot join the Committee, I am afraid. None the less, I am delighted to see her.
Mr. Vaizey: Thank you, Mr. Gale. I thought I was about to achieve something that I never thought I would achieve in my political career and take part in a debate with one of the politicians whom I most admire: Baroness Williams of Crosby. Sadly she has been—
Mr. Richard Benyon (Newbury) (Con): Ejected.
Mr. Vaizey: Indeed. The last time I saw the right hon. Lady I was about eight years old, and she used to come for supper with my father. That is just a small anecdote.
It is a delight to say that I agree with an enormous amount said by the hon. Member for Bath, who has clearly been using his spare time effectively to conduct a forensic analysis of the guidance, as he covered a great many issues in detail. I shall confine myself to three specific themes. First, the guidance starts by stating that its purpose, and the purpose of the 2003 Act, is to reduce crime and disorder and I want to tarry on that proposal. Secondly, as the hon. Gentleman pointed out in relation to section 8 of the guidance, it includes important measures to increase local accountability and make other changes. Thirdly, there was an extensive debate in the other place—we, too, should have such a debate—about the effect of the guidance on live music.
This is the third revision of the guidance and it may need to be revised further. The foreword was written by an ex-Secretary of State for Culture, Media and Sport, so perhaps it should be updated to include the new Secretary of State and, as was hinted at, the further consultation that was issued yesterday. There appears to be a rolling consultation, with constant tweaks and changes by the Government. If the Committee could send one message, broadly, on the guidance it would be that the Government should do their thinking and consulting in one go and issue one set of clear guidelines. They should do their utmost not to tweak and change things and, as they should do in so many other areas, allow the guidance to settle down and have a chance to work.
Although I would like to lay much of the blame on local authorities that interpret the guidance wrongly, whether heavy-handedly or lackadaisically, perhaps they can be forgiven, as the Government are constantly reissuing the guidance, so they do not always know where they stand. The former Select Committee on the Office of the Deputy Prime Minister published a damning report last year highlighting the many errors made by the Department for Culture, Media and Sport with regard to the guidance and the Act. It condemned high licence fees as unreasonable burdens on community facilities with limited funds, and it accused the Department of making errors that caused unnecessary stress on all parties involved. The Better Regulation Commission refers to the guidance with the words, “inadequate support”, “basic errors” and “unnecessary costs”.
On the matter of crime and disorder, when Labour first announced the changes it texted young people with a reference to a popular brand of Australian beer saying:
“If you don’t give a XXXX for closing time, vote Labour.”
The hon. Member for Bath referred to the statistics, but he did not cite any specific figures on the increase in alcohol-related offences. May I fill that gap on his behalf? A million people were victims of alcohol-related attacks last year. This year, there has been a 22 per cent. increase in offences committed between 3 am and 6 am, a 25 per cent. increase in the most serious violent crimes, and a 17 per cent. increase in admissions to accident and emergency departments.
Mr. Sutcliffe: Is the hon. Gentleman advocating a policy of regulating markets, thus moving away from the Conservative principle of free markets?
Mr. Vaizey: As a keen student of Conservative history, the Minister will know that the Conservatives have never shied away from regulating markets when it is necessary for the prevention of disorder. It is interesting that a policy of anarchy is effectively being advocated by a Minister of the Crown, as he does not seek any kind of regulation of the selling of alcohol.
In return, will the Minister tell me if he thinks it right that a can of beer should be sold in a supermarket for less than a pint of milk? It is sold not only for less than a pint of milk, but for less than the duty paid on that can of beer. Duty on alcohol is very high, which makes it difficult and anti-competitive for alcohol companies to sell alcohol in this country. However, because of the power of the supermarkets, some alcohol is sold for less than the price of the duty paid. The Minister is saying that he is powerless to intervene, so our children and young people can buy beer for less than the price of a pint of milk?
Mr. Foster: The hon. Gentleman makes his point very well indeed and I support everything that he says. However, to return to the Minister’s intervention and whether he is going to stand up to competition law or just fall over in front of it, may I remind the Committee of paragraph 10.38, which states:
“It is also likely to be unlawful for licensing authorities and the police to promote generalised voluntary schemes or codes of practice in relation to price discounts on alcoholic drinks, ‘happy hours’ or drinks promotions”?
Paragraph 10.39 states:
“However, it is acceptable for licensing authorities to encourage”—
not promote, but encourage—
“adoptions locally of voluntary industry codes of practice which cover irresponsible drinks promotions such as that produced by the British Beer and Pub Association”.
That constitutes a clampdown on happy hours, which is not allowed in the preceding paragraph. Is the Committee as confused as I am?
Mr. Vaizey: The hon. Gentleman is right. Those paragraphs cannot be reconciled, except through some tortuous reading of the law that implies that a national scheme can be promoted locally by a council while a local scheme cannot be promoted locally by a democratically elected council. He pointed out earlier that that creates the bizarre situation whereby a local council could promote a national scheme locally while the next-door council could decide not to promote it. In effect, there would be two different regimes existing side by side, but that would not be deemed by the Minister and his lawyers to be a breach of competition law. However, if the local council promoted its own scheme and the next-door council did not promote one, that would be deemed by the Minister and his lawyers to be a breach of competition law.
As the hon. Gentleman has indicated—and I wholly agree with him—that is a farce. A deeper look will reveal that we are talking about political leadership and the will to take on supermarkets on the selling of beer. It is not a question of fixing prices, but of saying that where alcohol companies are paying duty, that duty should appear on the face of the product when it is sold. That is the purpose of duty in many cases. For example, the duty on cigarettes is designed not just to raise money for the Revenue, but to promote health. I know that I am digressing, but that point has to be made loud and clear.
Another important point about the document is that it is designed to give guidance to local authorities. It is always frightening to send 140-odd pages of guidance to anyone, let alone a local authority, and hope that it will be interpreted in a reasonable and appropriate fashion. One reason why I supported the Act in the early days was that I thought it might give some form of democratic accountability to licensing activity, but that has not proved to be the case. Like the hon. Member for Bath, I welcome the changes to the law on vicinity, which has led to some extraordinarily ridiculous cases, such as one in which people living a few yards away from a pub were barred by their local council from objecting to a new licence. I remain concerned that applications may still be granted automatically if no objection is made, as objections are artificially limited. There are few powers to hold pubs and clubs responsible for rowdy or drunk customers after they leave licensed premises, even if it is obvious that the nuisance was ultimately caused by the serving of alcohol. I am also concerned about the presumption in favour of allowing 24-hour and late-night supermarkets and shops to sell alcohol the whole time that they are open.
As an aside, paragraph 8.11 of the guidance states:
“In addition, councillors who are not themselves interested parties or representing interesting parties may wish to be kept informed”.
I should like to know why there has been a change from “interested” to “interesting” parties. The Minister has left the law wide open to subjective interpretation, as councillors may from now on ignore representations from boring white, middle-aged men in suits and ties, whereas those made by people wearing cargo pants and T-shirts may be taken more seriously.
There is a bizarre paradox at the heart of the guidance. I chafe at the fact that while there is less democratic accountability—and certainly less than one would hope for—many of the people on whom we rely in our local communities are put off exercising their day-to-day responsibilities. The guidance presents huge complications, for instance, to someone who has taken on the voluntary role of managing their local village hall. They must go through all the pages to try to work out what they are responsible for, and they have to apply for temporary event notices. We know that there is a huge fall-off in such applications.
It is no good my just complaining about the Government, and I inform the Committee that the next Conservative Government will undertake a fundamental review of licensing laws and statutory guidance. Perhaps the Minister should stop reviewing the guidance; we can wait until 2010 and the election of the next Conservative Government before we conduct yet another review of the Act. The review will examine the Act’s failings and consider whether the guidance should allow residents in an area larger than the immediate vicinity of the establishment to register objections to licensing applications. We also want the guidance to give councils powers to fix staggered or terminal hours across an area. As I have hinted, the review will consider altering the statutory guidance to make pubs and bars responsible for rowdy customers outside, as well as inside, their premises.
Finally, the hon. Member for Bath was extremely comprehensive on the issue of live music, as was Lord Clement-Jones, the Liberal Democrat spokesman in the other place. We are in an extraordinary place: many musicians wish that the two-in-a-bar rule, which was regarded as an anachronistic and out-of-date rule, could be brought back, because before the Act was passed and the guidance issued, people at least knew where they stood, or where two people with acoustic guitars in the local bar stood. They knew that if two people were playing live music, they were all right. As a result of the Act and the guidance, some 40 per cent. of bars that have hitherto offered live music have moved away from doing so because they are terrified that they will somehow be breaking the law. As the hon. Member for Bath pointed out, Ministers made huge play of the effect that the Act would have on live music, referring to an “explosion of live music” and saying that they would be astonished if more pubs did not put on live music. We now know from the report by the live music forum, put together by Feargal Sharkey, that the effect has been broadly neutral.
We need a serious debate on how to reduce the regulation on live music. I am not prepared to call for all regulation of live music to be put aside, because I have not received authorisation to do so. There is certainly a case for arguing that there are plenty of measures in place to protect people from nuisance and annoyance from live music, and the Act itself prevents nuisance, so it is bizarre that we are adding yet another layer of regulation to restrict the promotion of live music. We need a debate on how we can significantly reduce the complex regulations on live music because, as I said, it has come to a pretty pass when an anachronistic rule such as the two-in-a-bar rule is seen as much simpler than the current guidance.
9.51 am
Mr. Sutcliffe: May I start by welcoming you to the Chair, Mr. Gale? It is always a pleasure to serve under your chairmanship, and I thank you for the guidance that you have given the Committee this morning. I thank the hon. Member for Bath for his detailed contribution, although he strayed into some myths that I hope to bust. I am grateful to the hon. Member for Wantage for his positive comments. I allowed him to go into the realms of what the Government might do in the future without intervening on him.
I welcome the hon. Member for Bath’s positive comments on many of the changes that we have made to the guidance. It is clearly impossible to please everyone, but the revised guidance has got the balance about right. As he said, the review of the guidance was carried out over nearly two years, in close consultation with a working group of licensing stakeholders, including local authorities, residents, the police, the arts and the licensed trade. The working group was closely involved with every aspect of the review and unanimously endorsed the revised text. The response to the public consultation last spring was also positive, with a clear majority of respondents endorsing the new guidance.
The new guidance has something for everyone. For residents, there is better guidance to licensing authorities on how to consider the impact of a licensing activity on local residents when deciding whether they are “in the vicinity” of a premises, and therefore whether they can make representations. For musicians groups, there is clarification of the fact that residents can make representations supporting an application, for example, if they would like their local pub to put on live music, as long as those representations are linked to the licensing objectives. There is also expanded guidance on how to determine what is incidental music, to encourage more authorities to use that exemption. For the trade, there is clearer guidance on how to authorise the sale of alcohol when the premises supervisor is absent. For everybody, there is clear and more concise guidance. Far from being a doorstop, the booklet is 40 pages shorter than the original document.
We estimate that those and other clarifications could save licensing authorities and the trade about £2 million a year. The revised guidance has been widely welcomed by all those with an interest in licensing matters, particularly the licensing authorities, for whom it was primarily intended, but also the trade and other stakeholders. Birmingham licensing authority, for example, described it as
“a really good piece of work”,
and the Association of Convenience Stores hailed it as
“a victory for common sense”.
The Musicians Union said of the clarification on incidental music:
“We welcome this amendment and believe that it could be of enormous assistance to smaller establishments where music is not the core business.”
I am sure that hon. Members will agree that there are no convincing reasons for revoking guidance that has been warmly received by stakeholders across the board.
I wish to clarify the press release that went out yesterday. The minor variation proposals have nothing to do with the guidance. They deal with a change to be made to the primary legislation—the Legislative and Regulatory Reform Act 2006—and the fact that the procedure for any change requires a consultation to be held. Committees in both Houses will consider the Government’s proposal, and only if Parliament agreed to make changes to the primary legislation would the issue of adding supplementary information to the guidance arise.
Paragraph 8.36 of the guidance refers only to the changes to items that do not have to be shown on the plans submitted with the licensing application. It does not refer to minor changes generally, nor does it establish the fast-track procedure for such changes. That is what the consultation is all about, and I hope that helps the hon. Member for Bath.
Mr. Foster: I am sure that the Committee is grateful to the Minister for that clarification, but there is still some confusion. I have the press release with me—I am sorry if other members of the Committee have not seen it—and it specifically says:
“Currently any small change to the way a licensed premise is run, such as small scale refurbishment...can only be achieved through the full ‘variation’ process—at an average cost of £385 per variation.”
Will the Minister confirm that the guidance makes it clear that small-scale refurbishment does not require a variation at a cost of £385? It is already covered in the guidance, so that provision does not add anything.
Mr. Sutcliffe: I am trying to help the Committee by providing clarification, which clearly has not met with the hon. Gentleman’s approval. I do not want to discuss something that, as you said, Mr. Gale, the Committee has not had sight of. However, I have no desire to mislead the Committee in any way, so I shall ensure that Committee members receive copies of both the press release and the detail. If we need to have further discussions about a matter that is not up for discussion this morning, we will do so.
Mr. Foster: Did I hear the Minister correctly? Did he say that he did not want to refer to a document that he had had sight of?
The Chairman: Not had sight of.
Mr. Sutcliffe: Thank you, Mr. Gale. I shall stop trying to be helpful to the hon. Gentleman and turn to the issues about which he is concerned, particularly the issue of live music.
The revised guidance on incidental music was debated in another place last month following a motion moved by Lord Clement-Jones to disapprove it. During the debate, he accepted that the issue was not about the guidance, which was generally well received by musicians and musicians groups, but about the Licensing Act itself. The final report from the live music forum concludes that the Act has had a neutral impact on live music, but that it has not led to the increase in live music events predicted by Ministers during the Bill’s passage. I understand that point.
The Government take very seriously the concerns outlined in the forum’s report, and we are carefully considering its recommendations on “incidental music”. We will respond to it very soon, but I cannot pre-empt the Government’s response. More generally, however, may I assure the Committee that the Government recognise the importance of live music, both culturally and economically?
Mr. Vaizey: When will that response take place?
Mr. Sutcliffe: In Government terms, very soon.
We want music to flourish under the new licensing regime. The Government believe that, in general, the licensing regime does not act as a barrier, and that, in many ways, it is far more measured and flexible than the old public entertainment licensing regime. However, that is not to say that the regime is perfect; there may be instances in which there is an unintended or disproportionate impact on certain types of venue or activity.
The Government have always said that we will monitor how the new legislation works in practice and make adjustments where necessary, and we are already doing a great deal to ensure that live music flourishes. We have acted on the forum’s recommendation on rehearsal spaces, and we have commissioned Feargal Sharkey to develop the work. This year, the Department commissioned research to examine the extent and frequency of live music in licensed premises in England and Wales under the 2003 Act, following the baseline research in 2004. Results should be available by the end of the year, and they will provide a good measure of the Act’s impact on live music performances.
The Department has also introduced other proposals that may benefit live music as part of its simplification plan to remove administrative burdens. They include a fast-track, lower-cost process for making minor changes to licences, which may help pubs and clubs that want to host live music events. As the Committee knows, we launched the public consultation document yesterday. We are currently consulting on a measure to make it easier for village and community halls to obtain a licence to cover all their activities, rather than be restricted to a limited number of temporary event notices. The Department will consult in the new year on whether de minimis licensing activities, which could include certain live music performances, should be exempt from the scope of the Act.
In developing the proposals, the Government have a duty to ensure appropriate public protection by promoting the four licensing objectives, particularly the prevention of public nuisance. Many live music events have no impact on local people, but there are always some that result in noise nuisance and severely affect residents’ quality of life. In monitoring and reviewing the impact of the Act on live music, the Government seek to strike the right balance between nurturing live music—with all the benefits that it brings to our cultural life—and the interests of local people, whose lives may be ruined by noise nuisance.
I am sure that hon. Members will understand that the Government are required to have a strong evidence-based business case before committing fee payers’ and tax payers’ money to any kind of national database, for which the hon. Member for Bath called. While the 2003 Act provides for the option of a central register, the licensing regime is designed to operate perfectly well without one. While I can understand why such a database might be useful, there needs to be a good case for it in terms of public protection and generating efficiencies for licensing authorities and others. We have previously worked with LACORS to build a business case, but expert assessment suggested that it was not sufficiently strong at the time to justify establishing a register. I am not sure that there is universal demand for a national database among practitioners. I spoke at the Institute of Licensing conference last week; I was told that the Institute did not have an agreed position and was consulting its members on what should happen. We will, of course, look at any problems that have occurred in the absence of a register, although previous experience suggests there are often other solutions. The hon. Member for Bath raised the issue of nuisance from vehicles.
Mr. Foster: I am in significant difficulty. The Minister appears to be suggesting that it is possible that the Government will not go ahead with a central database; that is the implication of what he has said. The guidance before us, which we are about to vote on, specifically states at paragraph 4.17:
“The Government, supported by licensing authorities, aims to develop a central licensing register”
Is the Minister now saying that what is stated in the guidance is incorrect?
Mr. Sutcliffe: What I am saying—and the hon. Gentleman read out the word “aims”—is that if it is the best route forward, that is the way that we will go, but we must take account of the view of the licensing authorities. The hon. Gentleman must have been in correspondence with the licensing authorities, or spoken to them. At their conference they said that they are not united behind the principle of a central register. We are trying to achieve the consensus that I have been asked by the Committee to achieve.
Mr. Foster: That response from the Minister really is not good enough The guidance states that the Government aim to develop a register. Is it now the Government’s intention to do so only if there is consensus? I accept that that is a sensible way forward, and I do not object to it, but aiming to do something means that the Government intend to do it. What the Minister is saying is that they intend to do it only in certain circumstances, which include achieving the sort of consensus that he describes. That is a very different statement.
Mr. Sutcliffe: I do not accept that. Clearly, it is our aim, but we would be very foolish if we wanted a central register but everybody in the industry said no to that. We will continue to discuss it and we will consult on whether or not we should have a central register.
The hon. Member for Bath raised the issue of nuisance from vehicles. Public nuisance is not defined in the Act, and it retains its broad common law meaning, including activities that affect the reasonable comfort and convenience of people living or working in the vicinity of the premises in question. It could therefore, in certain circumstances, include the movement of vehicles, if that was linked to licensable activities at a specific licensed premises. However, it is for the licensing authority to decide, in the specific circumstances of each case and considering the evidence before it, whether an activity gives rise, or is likely to give rise, to a public nuisance. Hon. Members will agree that local authorities, with their specific knowledge of the local area, are uniquely placed to make those decisions, rather than central Government. I am pleased to say that it will be local government that determines those issues.
Mr. Foster: That is an extraordinarily helpful response. I have with me the report of a magistrates court appeal, which I will read to the Minister because it is relevant to what he has just said:
“The appellants were concerned at the impact on a peaceful rural area of the granting”—
to a particular premises—
“of a 24 hour license, and wished for conditions to be placed upon it to address the issue of public nuisance arising from traffic and general noise...In conducting this hearing we have had regard to the Licensing Act 2003, the guidance issued by the Secretary of State under Section 182 of the Licensing Act...As a preliminary ruling, we decided that...traffic issues relating to movements to and from the premises were not covered by the Licensing Act 2003 and the licensing objectives contained within it.”
I think that the Minster is indicating that that was possibly an incorrect ruling in that case.
Mr. Sutcliffe: I am saying that the local authority should have the final decision-making powers in that area. I am pleased to have the opportunity to put some of the facts about the 2003 Act on the record, because I believe that alcohol issues are plagued by misunderstandings, as has been shown in today’s debate. The 2003 Act was two years old last Saturday, and although our monitoring and evaluation period will not be completed until the new year, I can give the Committee a flavour of what is happening on the ground.
Since the 2003 Act came into force, serious violent crime has gone down by 5 per cent. during the evenings and at night. Less serious wounding is down by 3 per cent. and accident and emergency departments have seen decreases in serious violence. Test purchase figures for kids attempting to purchase alcohol are down. The cost of associated red tape has reduced by about £100 million a year for the industry and the third sector. Consumption of alcohol is down.
The 2003 Act has not led to 24-hour licenses becoming the norm. Overall, about 1 per cent. of premises have a 24-hour license to sell alcohol to the public. Under 0.5 per cent. of licenses are for pubs, bars and nightclubs that have permission to sell alcohol 24 hours a day. About two thirds of all 24-hour licenses are for hotels, and 95 per cent. of those are allow sales to guests only, such as late-night room service, as under the old licensing regime. It is simply not true that there has been a doubling of 24-hour licenses, as some have claimed. Of the remaining 24-hour licenses, 917 are for supermarkets and stores, and 465 are for pubs, bars and nightclubs. Recent research found that there were no pubs, bars or nightclubs that were open 24 hours a day.
Sales to underage children have gradually been reduced through sustained enforcement action. The results of the most recent test purchase campaign showed that the overall failure rate was 14.7 per cent.—an improvement of 20 per cent. since 2006. While I agree that too many establishments fail the first test purchase, it is important to remember that they were the known problem premises that were expected to fail. The new powers that we introduced meant that most did not go on to fail again, and those that did so will face a range of action, including possible prosecution, licence review, or even licence revocation. The truth of the matter is that, while the failure rates need to improve, there has been continued improvement. I am slightly disappointed that the hon. Member for Bath does not feel able to congratulate the enforcement agencies on their hard work and help send the message to under-18s and rogue retailers that under-age sales will not be tolerated.
Mr. Foster: The Minister is absolutely right that it is not the enforcement agencies alone that deserve praise. Our local councils, which act as licensing authorities, deserve huge praise for the work that they have done. I am happy to put praise for both on the record.
Mr. Sutcliffe: I thank the hon. Gentleman for doing so. I concur with his congratulations, particularly to local government on the way that it has implemented the 2003 Act.
The Home Office’s crime and disorder study on the impact of the 2003 Act will report in January 2008, but we already know from the most recent crime figures that the overall number of more serious violent offences during the evening and night time is down by 5 per cent. and less serious wounding is down by 3 per cent. The figures suggest an increase in more serious violent crime between 3 am and 6 am, but only a small proportion of those crimes occur at that time—there were only 236 incidents across 30 forces over a year. That is more than offset by overall reductions in the thousands of serious violent offences during the evening and at night.
A study by Cardiff university of 33 accident and emergency departments found that, overall, there was a 2 per cent. decrease in serious violence since the 2003 Act came into force. A study by John Moore’s university showed a 15 per cent. decrease in assault cases being presented to accident and emergency departments. There are a number of examples of how the new enforcement powers are used locally to tackle problem premises. Most recently, on 13 November, Bexley magistrates court upheld a decision by the local licensing authority to suspend the licence of a Tesco store in Sidcup for three months because of evidence that it was selling alcohol to children. That is a considerable financial punishment for that outlet. Chief superintendent Tony Dawson, the borough commander for Bexley Police, commented:
“This is another in a long line of successes for the collaborative working that has been such a key feature of the work here in Bexley, especially since November 2005, when the new licensing regime came into effect”.
That kind of enforcement action is being replicated across the country. In the 12 months to March this year, there were at least 675 reviews of licences and certificates. Among other things, that resulted in 92 licences and certificates being revoked, which is almost two a week; 91 licences—again, almost two a week—being suspended for up to three months, which was not possible under the old law; 106 premises, or more than two a week, being made to change their opening hours; 52 premises, or one a week, had their managers, which is to say their designated premises supervisor, removed; and 396 premises had other conditions placed on their licences, which was also not possible under the old laws.
The House should be the first to congratulate—and the hon. Member for Bath has done so—the licensing committees and responsible authorities such as the police on their work in producing those figures. As they would put it, they are targeting their powers proportionately in the interests of their communities. In the same period, the police used their powers under the Act to close 44 premises—again, almost one a week—following disorder or excessive noise. One of the aims of licensing reform is to encourage a more responsible approach to drinking, especially at last orders, but the Government have never said that licensing reform alone would tackle the problems of alcohol misuse, nor have we ever claimed that there would be some magical overnight transformation to a continental cafĂ(c) culture. The Act is only one part of the Government’s overall strategy on tackling alcohol harm. The revised strategy called Safe, Sensible, Social” aims to target action where it is most needed, on, for example, 18 to 24-year-old binge drinkers; young people—under-18s—who drink alcohol; and harmful drinkers whose drinking damages their health, often without them realising.
Work is already under way on issues such as the impact of pricing and advertising. The Government will consult further on the need to make sensible drinking advice on alcohol labelling compulsory, and we will work with an expert panel on the physical effects of alcohol on young people. As has been mentioned, the Prime Minister hosted a summit meeting with trade, doctors and academics last week to set out the action that the Government propose to take to tackle under-age drinking and binge drinking. Many complex issues were raised at that meeting. In the first week of December, we will launch an enforcement campaign focusing on retailers who sell alcohol to under-age customers or customers who are already drunk. It will be targeted at 1,500 high-risk premises in 90 areas with high levels of alcohol-related crime and disorder. Repeat offenders will face penalties ranging from heavy fines to the loss of alcohol licences.
Hon. Members need not take only my word for it. Reference was made to LACORS. Councillor Geoffrey Theobold told us:
“The new licensing laws have given councils, and more importantly local people, a real say on a range of issues affecting the bars, pubs and clubs in their area. Councils are committed to helping people safely through their day, and licensing officers are using their powers to make sure bars and pubs are safe places to visit.”
The trade association for nightclubs told us that longer trading hours under the Act have aided the safer dispersal of people and seems to have had a positive effect on a number of towns and cities throughout England and Wales. I accompanied the police on a night-time visit to Bradford and found that the Act has been beneficial for crowd dispersal. Buxton police noted that the new spread of closing times
“has relieved some of the pressure on front line officers who are no longer faced with hundreds of people pouring out on to the streets at 2am.”
Brighton council tells us that spreading licensing hours appears to have reduced turmoil at closing time and low-level violent crime. It says that the review powers have given police, environmental health officers and residents effective powers to deal with irresponsibly run licensed premises. That is the evidence of local authorities and those responsible for the Act, and I could go on to cite many other examples.
The Act and the guidance are striking the right points. I know about drinking issues and I hope that we can have a sensible debate on drinking culture. The issue is not about a battle between licensing operators and the wider community; rather, it is about deep-rooted problems in the culture of alcohol use in the UK, such as the fact that more people drink at home before going out later. There are a number of problems to which we should attend. Broadly, we believe that the Act is working in communities’ favour, and I hope that the Committee will accept the guidance. We need to revisit the competition issues raised by the Committee’s discussion but, clearly, the issue of price competition needs to be looked at. I am sure that that will happen as part of the wider discussion of drinking culture and the route forward. I hope that the Committee accepts that we have had a reasonable debate, and that the guidance is integral to helping people to understand the Act.
Question put and agreed to.
That the Committee has considered the guidance issued under section 182 of the Licensing Act 2003.
Committee rose at sixteen minutes past Ten o’clock.

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