James
Brokenshire: How does the Minister envisage enforcement
operating? He has identified the issue of penalty notices for disorder
being applied in relation to under-age sales and the approach that is
taken there. That is understood and I understand the arguments about
ease of enforcement at times. Does he think that that would be an
appropriate remedy in relation to clause 27? It addresses more serious
events because of the escalation and the persistence that is involved,
but does he envisage that penalty notices for disorder would be issued
in respect of this offence? How does he see that operating in
practice?
9.15
am
Mr.
Campbell: This is about tightening the current system. As
the hon. Member for Hornchurch says, there is a system of escalation,
but the purpose of the clause is to escalate that system more quickly
where premises are persistently selling alcohol to under-age children.
That is something that the Local Government Association and the police
have welcomed. It goes back to a theme that we have already touched on
in this section of the Bill, which is not only about giving powers to
the police and the trading standards authority but giving police
officers the flexibility to decide on the most appropriate approach in
different circumstances. If a shop is not heeding warnings and test
purchasing operations, and not learning from them, we want to make it
easier to escalate the response more quickly, which is why we are
reducing the offence from three strikes in three months to two strikes
in three months.
The hon.
Gentleman made a point about earlier legislation and in response I
would say that the situation is always moving on. This particular
offence was introduced after the review of the Licensing Act that took
place in
March 2008. That review said a number of things about licensing and it
reaffirmed the need to crack down on under-age sales. It also said that
there was still a problem in some areas and in some communities. If we
are to send out the strongest possible signal that selling alcohol to
children under 18 will not be tolerated, this is an appropriate way to
do it. We also
carried out a tackling under-age sales of alcohol campaign that
demonstrated that those were the worst areas, although I accept the
point made in the oral evidence sessions. Nevertheless, I envisage the
legislation being enacted in those worst areas, and it is in those
problem areas that we need to send the strongest and swiftest message.
The message that came out of the tackling under-age sales of alcohol
campaign was that despite test purchasing and warnings, and police and
trading standards activity, some premises continued to sell alcohol to
under-age children. Not only is that wrong in itself but it can lead to
alcohol-related disorder in a particular area.
The hon.
Gentleman talked about the toolkit and the guidance in it. The toolkit
does not caution against the use of prosecution, but it shows that
targeted test purchasing enforcement, and a co-operative approach
between the police and the trading standards and licensing authorities,
can be effective in tackling under-age sales. We listened very
carefully to the experiences of the trading standards authority and the
police, who broadly support what we are
doing.
James
Brokenshire: I have listened carefully to the Minister and
I agree that we need very firm and strong powers to control under-age
sales of alcohol to ensure that the systems are upgraded and the
irresponsible retailers who sell alcohol to those who are under age are
dealt with very
firmly. I
queried whether the toolkit seeks to adopt the review of a licence
approach rather than a prosecution-type approach. That was the point
that was being made. The advice was that in such circumstances a review
was more appropriate than using the section 147A power. Will the
Minister reflect upon that in the light of the points that he has made
about sending out signals? It seems to me that that is not necessarily
using the power in the way that he perhaps intended in respect of
sending out that clear signal to those who persistently—this is
the point—sell alcohol in that
way.
Mr.
Campbell: I will certainly reflect on that. However, the
guidance does not suggest that prosecution is not an appropriate early
response—it could be appropriate, but it depends on the
circumstances that the police and trading standards officers find. The
system must be flexible: it must not make assumptions or have in place
one track for every circumstance, otherwise people will say,
“That is a disproportionate response in some areas, but
insufficient in others.” It really depends on the
circumstances. The
hon. Gentleman asked whether all sales establishments will be treated
the same and whether renewed guidance will be produced. The fundamental
offence will not be altered by the Bill, which simply puts in place a
tightening-up mechanism. At this stage, therefore, the guidance does
not need to be renewed, but I may consider his point in the future. On
the first question,
under-age sales is both an on and off-sales issue. We must send out that
message very clearly. On-sales people tell me that it is not their
problem, but I get the same message from off-sales people too. It is
their, and indeed everyone’s, problem, and it is important that
the law is applied
equally. We
work very carefully with large retailers, where sometimes it is easier
to enforce the provisions. However, we also work closely with, and
listen carefully to the concerns of small retailers, and we take into
account the fact that one might be the only shop on an estate and that
they might therefore feel under pressure on under-age sales. That is
not an excuse, however, but an enforcement issue. In such
circumstances, retailers and the police need to work closely with each
other.
James
Brokenshire: Does the Minister recognise that some
retailers are under pressure as a result of the abuse, violence,
threats and intimidation meted out to their staff and themselves? We
need to ensure firm enforcement of the law on selling to under-age
people and, equally, to protect retailers and shopkeepers putting up
with unacceptable behaviour and threats when upholding the
law.
Mr.
Campbell: We agree entirely. The latter point is a police
matter that I have discussed with retailers and the police. Everyone
recognises that it is an enforcement matter. Such intimidation might
explain why retailers feel under pressure to sell to under-age people,
or to those who then pass on the alcohol to them, but it does not
excuse it—the law is the law. However, I understand the hon.
Gentleman’s point about enforcement. We agree on that, so I hope
that we can agree on clause 27 too.
Question
put and agreed to.
Clause 27
accordingly ordered to stand part of the
Bill. Clause
28 ordered to stand part of the
Bill.
Clause
29Offence
of persistently possessing alcohol in a public
place
James
Brokenshire: I beg to move amendment 35, in
clause 29, page 22, line 33, leave
out ‘reasonable excuse’ and insert
‘the permission of his or her
parent or
guardian’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 86, in clause 29, page 22, line 34,
leave out from ‘place’ to end of line 35 and
insert ‘and in doing so
is in breach of a current acceptable behaviour contract which has been
signed by that
person’. Amendment
242, in
clause 29, page 22, line 35, at
end insert ‘and in doing
so is in breach of a current Acceptable Behaviour Contract which has
been signed by that
person.’.
James
Brokenshire: Clause 29 creates a new offence of
persistently possessing alcohol in a public place without a
“reasonable excuse” where the person is under the age of
18. Amendments 35 and 86, in my name and that of
my hon. Friend the Member for Bury St. Edmunds, are designed to test the
scope, application and purpose of the new offence, and how enforceable
it is likely to be.
It would be
helpful to get a clear understanding of what the Government mean by the
concept of “reasonable excuse”. The Minister will
remember that I asked one of the police officers giving evidence to us
what he understood by that concept. Obviously, it may apply in other
circumstances: the most obvious might be the possession of a knife in a
public place without a reasonable excuse. The concept is understood
there. However, the situation dealt with by the clause is different,
and some clarification of the scope and intention of those words would
be helpful in understanding the Government’s approach.
Equally, we
must ensure that the clause, if enacted, is enforceable, robust and
clearly understood by police officers, prosecution authorities and the
community as a whole. It seems to have been based on the concept of
possession of an offensive weapon in a public place, so that an offence
is committed unless there is a justifiable reason for having the item
on one’s person. In some ways, that requirement for a defence is
understandable in the context of offensive weapons. To take knives as
an example, a chef travelling between work and home might have to take
the tools of the trade with him, and that might be a reasonable excuse.
I understand the concept; but it would be interesting to know what the
Minister would consider a reasonable excuse under the
clause.
I understand
and appreciate the problems that many communities have with some
teenagers drinking in public places and leaving bottles strewn all over
the place. Parks and play areas spring to my mind, given the situations
that I have had to deal with. Leading on from that, there is potential
for antisocial behaviour and crime to result from excessive alcohol
consumption. The question is whether the concept of reasonable excuse
will in those circumstances deal with the issue as the Government think
it will.
At the moment
the law on the consumption of alcohol by children is that it is illegal
to give an alcoholic drink to a child under five, except under medical
supervision in an emergency. However, the law is not prescriptive on
consumption per se for children over five. The Confiscation of Alcohol
(Young Persons) Act 1997 provides the police with a power to require
the surrender of intoxicating liquor, and the Licensing Act 2003 places
restrictions banning sales of alcohol to anyone under 18, while at the
same time permitting the consumption of alcohol on licensed premises by
16 and 17-year-olds if they are consuming food and are with an
adult.
The
Government’s “Youth Alcohol Action Plan”
notes: “The
current law allows anyone over the age of 5 to consume alcohol and in
practice this is a matter for parents to
decide.” The
starting point under the clause is that possession of alcohol and
therefore, by extension, the consumption of alcohol in a public place,
by someone under 18, will potentially trigger liability if repeated,
unless a reasonable excuse can be provided. Therefore—it would
be perverse if this were not the case—notwithstanding that it
has not to my knowledge otherwise been an offence, the consumption of
alcohol by someone under 18 cannot be considered to be a reasonable
excuse per se, should it happen in a public space. If I have
misunderstood the clause I am sure that the Minister will return to
that point.
It seems to me
that by extension consumption goes with possession, because obviously a
person must possess alcohol in the first place to consume it; one
follows the other. Following that logic, if a 16 or 17-year-old was in
a park with their parents having some food, and that was repeated on
three occasions, they would potentially be committing an offence,
although if the same actions took place on licensed premises they would
not constitute an offence. The point that I am trying to understand
comes back again to what would be considered a reasonable excuse. Would
it be a reasonable excuse to apply the argument about what happens in
licensed premises, in contrast to what might happen in a public
space? Ms
Sally Keeble (Northampton, North) (Lab): My reading of the
clause is that it relates to possession; so it is like dealing with
possession of an offensive weapon. As an example, I once saw the trial
of a Rasta for having a stick which could be either a religious object
or an offensive weapon. The offence was not using it but having it. In
just the same way, a kid could be walking along with several cans of
lager, and the issue would be whether he had them with fair
reason—perhaps because he was going to a party—or whether
he was going to drink them all in a park and cause havoc. The
possession is the thing; not the
consumption.
James
Brokenshire: I agree with the hon. Lady. Whether vessels
containing alcohol have been open or closed has been an issue and a
distinction for the police in the past, as has whether there was a
right of confiscation in such circumstances. In some ways, the clause
is intended to cover that. However, it could extend to the situation on
licensed premises as contrasted with the one in which those self-same
actions took place in a park or a public open space. The young person
would be in possession of alcohol, albeit that they happen to be
consuming it at the same time. I am probably implying that such a
distinction might not be correct, although I am sure that the Minister
will correct me if I have misunderstood the position. However,
consumption implies that people have possession of alcohol, so would
that not equally be covered under the clause? Perhaps the definition of
“reasonable excuse” is a defence in those circumstances.
A lot turns on that language, which is why we tabled the amendment with
the concept of
without “the
permission of his or her
parent”. 9.30
am I
accept that the amendment is not necessarily perfect and that it has
been tabled for testing purposes more than anything else, but it would
clarify the intention behind the words and the real scope of the
clause. I am not sure whether the Government’s meaning of the
provision is the same as the intention behind amendment 35 and whether
they mean that being in possession of alcohol must be under the
supervision of the parent or guardian or whether it is considered
directly or indirectly, through guidance or otherwise, that the concept
of “reasonable excuse” would cover that situation. It
would be interesting to hear what the Minister
thinks. A
balance clearly needs to be struck between the needs of a community
with antisocial behaviour problems, and the roles of the state and
parents. The “Youth
Alcohol Action Plan” envisages that, in many respects, parents
have a fundamental role. That is absolutely right, given the
relationship, but equally I recognise that, sadly, some parents are
irresponsible, which is the reason behind my comments about
supervision. I should like to understand the Government’s
intentions more clearly in respect of the
provision. According
to research on the source of alcohol consumed by 11 to 15-year-olds who
drank 14 or more units in the previous week, 48 per cent. claimed to
have been given alcohol directly by their parents, while 42 per cent.
claimed to have taken it without their parents’ consent. Sadly,
situations can occur when parents turn a blind eye. It could be a
matter of the kids going out in the evening and parents not wanting
them in the house and willing to turn a blind eye if they take a bottle
or two, or some cans, out of the garage. Such “out of sight, out
of mind” experiences have been expressed to me by the police and
others when the concept of what their children should be consuming in
terms of alcohol is perhaps not always considered as
carefully and closely as it should be.
On my outings
with the police, I have experienced situations in which a child in
possession of alcohol has been found in a public place or park. The
alcohol is taken away and the child is returned to the home. Even then,
just two minutes later, the parent lets the child straight back out
again as if nothing had happened. There is a need to look at
enforcement and child protection issues, and how we can demonstrate and
promote greater thought and encourage parents to behave
responsibly when undertaking their role and duty in such
matters. Does
the current language of the clause properly encapsulate that balance?
Can the Minister also provide some examples of what would and would not
be considered as a “reasonable excuse” for the purposes
of the clause? How would that be applied in practice, given that many
of the cases are likely to be dealt with summarily, without going
anywhere near a court? Clearly, therefore, arguments that might be
applied are saying that we need to test what the case law is and to
follow through on the definition and how it might be interpreted by the
courts. That is something that will be at the forefront right at the
outset, given that in a lot of cases it would be the sort of offence to
be dealt with summarily, rather than necessarily going to
the courts in the first
instance. Amendment
86 addresses a slightly different issue. The proposals outlined in the
clause were first trailed in the Government’s “Youth
Alcohol Action Plan”, published in June 2008, which said, in the
case of persistent public drinking by young people,
that: “In
these cases, it is essential that any interventions should involve not
only the young people themselves, but should also address the behaviour
of parents who are not taking their responsibilities
seriously.” As
I said in my previous comments, that balance is absolutely right. The
linkage with parents is needed, and that greater sense of
responsibility. The Government said that it would be bringing forward
legislation on persistent drinking, stating that it
would: “Implement
new legislation to make it an offence for under 18s to persistently
possess alcohol in public places. Prosecution will require evidence of
continued confiscation and failure to abide by
an”
acceptable behaviour
contract.
“The penalties
applied will depend on the nature of the behaviour in question, whilst
taking into account the young person’s previous criminal
record.” That
wording is reflected equally in the regulatory impact assessment that
sits alongside the
clause. Despite
that, clause 29 does not seem to follow the stated policy objection in
a number of ways. It does not require breach of an acceptable behaviour
contract—it is a simple “three strikes and you’re
nicked” test. Secondly, the penalty applied is simply a fine of
up to £250. Can the Minister explain whether there has been a
change in approach? If not, is it intended that ACPO or the Home Office
will issue guidance on the use of the powers, such that there will be a
need for breach of an acceptable behaviour order? That is certainly
more understandable in the context of the wider policy intention of
giving a role to the parents and family in the welfare of
their
child. Amendment
86, therefore, seeks to introduce the concept of a breach of an
acceptable behaviour contract to give effect to the Government’s
previously stated intention, albeit that the Minister may be saying
that that was not the intention. He may wish to give the police the
greater flexibility, notwithstanding what was stated in the policy
document and the regulatory impact assessment, and envisage that there
should not be the fourth trigger of an acceptable behaviour contract
being
breached. It
is important that we understand how the provision is intended to
operate, given what I said about the need for greater parental
responsibility and linking in that relationship between the child and
their parent or guardian, where they have one. Is it simply a
straightforward enforcement test based on three occasions of persistent
possession, or does the Minister envisage that there would be the
additional step of escalation, with an acceptable behaviour contract
having been issued at some stage during that process, or after that
third occasion? How would that operate in practice, given the
appropriate and understandable intention stated in the policy document,
which obviously is not fully reflected in the clause before
us?
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