James
Brokenshire: Amendment 244 would delete paragraph 2 of
schedule 4, which sets out the main thrust of the mandatory code. In
many ways I sympathise
with the hon. Member for Chesterfield, who tabled the amendment, because
we are having to debate the issue in isolation—in a
void—and we are second-guessing what the proposal is actually
about. As he rightly identified, the provision in paragraph 2 is
effectively only an enabling power—it enables the code to be
created and the provisions to be adopted.
Although we
have been given a hint and some suggestions, we do not know what the
mandatory code will contain. The Government are saying,
“Don’t worry. We cannot really do this until the Bill has
been enacted and then we will tell you what we propose,” but
that makes it extremely difficult to understand properly the likely
impact of the schedule and the operation of the system.
To be fair to
the Minister, there have been a few signposts, directions and hints,
but we do not have the code, so we do not know whether the proposal is
appropriate. I accept that we need to face up to the concept of
irresponsible promotion. We can debate it in more detail during the
stand part debate, along with the other procedures and steps that could
be taken and the way in which they would interact with the good
practice that already exist in some parts of the country to try to
manage the night-time economy, deal with promotions and address other
factors. I have some sympathy with that approach, and I am trying to
understand the issue, but we struggle to do so without the
code.
The
amendments tabled by my hon. Friend the Member for Bury St. Edmunds and
I are testing and probing. The Government tabled a series of
significant amendments last week to clarify their intention to create a
new mandatory code for licensees, so for the Committee’s
convenience, I will comment first on our amendments and then on those
Government
amendments. Schedule
4 provides for detailed arrangements to establish the proposed code
through the addition to the Licensing Act 2003 of new subsection (4) to
section 19 and new sections 19A and 21A. Proposed new
section 19A(1) states that the Secretary of State can impose
mandatory conditions on
“all relevant
premises licences or relevant premises licences of a particular
description if the Secretary of State considers it appropriate to do so
for the promotion of the licensing
objectives.” Those
objectives are obviously the prevention of crime and disorder, the
protection of children from harm, the prevention of public nuisance and
public
safety. Amendment
37 would replace the word “appropriate” with the words
“necessary and proportionate”. In part, this touches on
issues of consistency. Under section 18(4) of the 2003 Act, a local
authority, when considering applications for licenses, may grant the
licence, subject to such
conditions “as
the authority considers necessary for the promotion of the licensing
objectives”. I
accept that defining what is necessary and appropriate might be a
slightly legalistic point, but there is a distinction to be made. What
one person considers to be appropriate might not be considered
necessary by another. I am trying to drill down on the
Government’s
intentions. Clearly,
parliamentary counsel have opted for a different formulation in
schedule 4, presumably to grant the Secretary of State wider
discretion. I assume that that is why the different language is used
here, but it would be useful to know whether I am picking up on a point
that has not been contemplated. Will the Minister confirm
whether or not the use of the word “appropriate” is
intended to grant the Secretary of State a much wider discretion on the
setting of conditions than would otherwise be available to local
authorities through the 2003 Act’s provisions? If that is the
case, it seems somewhat odd. Can the Minister explain the rationale? In
the light of that discretion, amendment 38 would make it clear that the
provision could not be used to raise, through secondary legislation,
the statutory age at which alcohol could be
purchased. 1.45
pm As
I said, we do not know what the mandatory code looks like, or what it
may look like in the future. I am sure that the intention is not to put
through something that could be considered a significant change to the
law. We could debate at length, although not in this sitting, what the
appropriate age might be, but it ought to be set out in primary
legislation for the whole House to debate. It should not, in essence,
be implied through a licensing condition so that the Government could
seek to impose through the mandatory code a requirement that the age
limit be higher than 18 as a term of the licence. In certain local
circumstances, there might be individual factors for a local authority
to consider within the context of a licensing review, such as whether
there has been disorder. Although that could be appropriate
individually, a blanket approach would not be right. Such a thing
should be introduced through primary legislation to enable proper
debate and scrutiny. The amendment would preserve that position and
clarify what the situation ought to
be. As
we have heard, proposed new section 19A(2) of the 2003 Act rather
strangely provides that the maximum number of mandatory conditions in
effect at any one time should not exceed nine—nine is the magic
number, for some reason. The hon. Member for Chesterfield was curious
about how that number had been alighted upon. My best guess—I am
sure that the Minister will be able to give us a definitive
answer—is that it relates to the alcohol social responsibility
principles set out in the youth alcohol action plan, which number nine
in total. Again, we do not know how that number was arrived at. It was
slightly odd that the Government sought to make that requirement, even
though the social responsibility principles talk about
promoting “responsible
drinking and the ‘Sensible Drinking Message’...To
avoid any actions that encourage or condone illegal, irresponsible or
immoderate drinking such as drunkenness, drink driving or drinking in
inappropriate
circumstances” in
addition to various other
things. Many
aspects of that principle are understood and not contentious. I may
have the wrong end of the stick, because we are slightly bemused as to
how the number nine was arrived at, but perhaps the Minister can
indicate why that particular aspect has been fastened upon. Does it
relate to the alcohol social responsibility principles, or does it
touch on something completely different? The Minister might be trying
to reassure the industry that there would not be a huge shopping list
of issues—I have some sympathy with that—but that there
would be a focus on a small number of things. The Minister might be
giving assurance to local authorities given that, as we have heard,
almost all their discretion could be taken away in one sweep—if
that is the case, why bother having local authorities at all? If all
the mandatory
conditions are set out by the Secretary of State from the centre, it
undermines the ability of local authorities to judge what is
appropriate for their particular
area. We
were told at the outset that the approach on licensing was about
letting local communities decide which licences should be granted in
their area and on what terms. I have concerns about rowing back from
that, because circumstances—we have confronted them—where
the national guidance did not necessarily give local authorities the
discretion that they thought that they had meant restrictions on things
such as saturation and various other aspects that needed to be
addressed locally. Those issues were quite problematic when the
legislation was introduced, because local authorities felt that their
hands were tied, despite some of the promises made about the intention
behind the Act in the first place. That is why what is hidden in the
detail—the statutory instruments or the guidance—is quite
important for how the provisions will
operate. We
need to understand the Government’s approach to ensure that the
Bill does not give some sort of carte blanche discretion to license
from the centre. To be fair, from what the Government have said, that
is not the intention. The question is not about the intention now, but
that in the future, in x years’ time, once the powers have been
granted. They appear to give wide-ranging discretion to make changes or
proposals that could erode a lot of what was originally set out in the
2003 Act. Some aspects of the agenda seek, understandably, to ensure
that local communities have the powers they need to control excessive
consumption of alcohol and to regulate licensed premises in their
area.
Amendment 40
would set out some statutory basis for consultation. Because everything
is left somewhat up in the air, we are almost reliant on statutory
instrument for a definition. The schedule seems to suggest that the
issue of how this would operate in practice would be addressed and the
guidance would come through in secondary legislation.
It is
important that the Bill states the need for consultation on this matter
with local authorities, local communities and bodies that might be
affected. I know that a consultation on the mandatory code is ongoing,
although we do not know what it looks like. However, for purposes of
reassurance, it is necessary to have a statement in the Bill requiring
consultation, instead of a reliance on secondary legislation.
We must
ensure that there are rights of appeal, challenge and consideration. If
the Secretary of State came up with a proposal that was wholly
unreasonable, irrational and disproportionate, and somebody had an
issue with something in the mandatory code, I assume that the only
redress would be judicial review. Perhaps the Minister can confirm
whether that is the intention, or whether there will be a way of
ensuring the right to challenge or appeal through the process outlined
in the Bill. We need some way of considering the Government’s
approach to the mandatory code. That approach might be laudable. It
might deal with some of the appalling promotions that we have seen,
which are designed for and targeted at binge drinkers and young people
in particular. There is merit in addressing marketing, but I am trying
to understand better the structure and intention of the mandatory code
in isolation. We must ensure that it does not erode the important local
discretion that we need for communities properly to address problems of
alcohol, alcohol-related crime and
licensing.
Mr.
Campbell: I shall reply to some of those points and then
explain why we feel unable to accept the amendments. The first issue
raised by the hon. Member for Chesterfield goes to the heart of the
debate: why have a mandatory code and not just a local code? I hope
that he accepts that there is almost universal concern about some of
these issues in every part of the country. It would not necessarily be
appropriate to leave it up to local licensing authorities to ensure
that that concern is addressed in their own areas. We could end up with
a postcode lottery of conditions that a sufficient number of people
felt were important.
There were
2,000 responses to the Department of Health consultation, 90 per cent.
of which were in favour of a mandatory code. There is common ground
across the country and across groups. Certainly, with the support of
the Association of Chief Police Officers and Alcohol Concern, there is
enough anxiety around issues such as “Drink as much as you can
for £10”, to warrant the application of the code across
the whole country. That does not mean that we ignore local
considerations, which is why there will be conditions that can be
applied locally as well as mandatory conditions.
The hon.
Members for Chesterfield and for Hornchurch both asked why there were
nine conditions. That is a good question—I asked it
myself—but it has nothing to do with the reference made by the
hon. Member for Hornchurch to the youth plan, and much more to do with
what he called the “huge shopping list” in our desire to
be reasonable. He asked why not have five or 20 conditions. There will
be nine because five would probably be too few and 20 would be too
many. That is not a scientific answer, but I am saying that we are
trying to be proportionate and to ensure that there are sufficient
conditions, while leaving headroom for a future Home Secretary who
might, with public support, bring forward further proposals. The number
nine has not simply been plucked from the air. The other effect of
having that number in the Bill is that it puts a statutory limit on
mandatory sanctions so that they are limited as well as being
imposed.
Paul
Holmes: If the Department has already done enough work to
say that nine will be a reasonable figure giving some headroom for
further expansion, it must have quite a clear idea about what people
are suggesting and what it is likely to reject and accept. It is a
shame that the Department has not published some of its thinking
because, as is so often the case, we will not see much of the detail,
which is the crucial part, until the Bill is passed. The detail then
comes out in statutory instruments and all sorts of other backstairs
methods that we cannot really discuss or
reject.
Mr.
Campbell: I shall return to that point shortly. The hon.
Gentleman talked about expensive conditions. I assure him that we have
gone to great lengths to ensure that the kind of burdens that the
industry has said—quite rightly—that it is most concerned
about are not in the mandatory conditions. I will come back to what
might and might not be in there. The hon. Gentleman will see from
Government amendments that defining locality better and being able to
target is an important part of proportionality.
We heard
about the cost of regulations, and it was rightly pointed out that it
would be quite possible that many, if not all, of these mandatory
regulations will be
“don’t dos”. Most of the “don’t
dos” that I can think of will not cost the industry, or at least
they will not cost the legitimate side of the industry. For example, if
“Drink as much as you want for £10”, the purpose
of which is to get people drunk, was not allowed, and if women were not
allowed into pubs for free to attract men in to drink more, I fail to
see how that would be an undue burden and where the financial cost
would be. We will have to wait to see what the code looks like, but
that is the principle upon which we are moving. The
hon. Gentleman referred to the number of pubs that had closed. I raised
that point during the evidence sessions. I agree that we have to be
very careful about burdens, but the evidence sessions showed that there
was a whole range of reasons why pubs closed, not least the social
changes that are taking place. I am trying to think of the last time
that I was in a pub. It is probably easier for MPs not go to into pubs
because we have work to do when we go in there—I do not mean bar
work. There have been significant social changes, so while we need to
be wary of burdens, we also need to put that into context. We will be
providing guidance as part of the ongoing process, and there will be a
mixture of national and local means through which to address the local
issues that the hon. Gentleman is talking
about. We
are working hard with a range of people about what should be in the
mandatory code. I do not want to read everyone into the record, but we
are talking—and have talked—to enforcement and local
government agencies, the on-trade and off-trade, the third and health
sectors, the Tourism Alliance, and the civic trust. We are also talking
to the alcohol industry. The list is long, and I am happy to put it in
writing for members of the Committee, or to put it in the Library, so
that people can see who we have been talking
to.
Ms
Keeble: Is my hon. Friend talking to any community group
organisations? The public who have to put up with the menace of
alcohol-related crime are the people who, above all, want to see
proportionate measures to manage it. That is not about the third
sector, but specifically about tenants, residents, community groups and
suchlike. It is not about local authorities either; it is about local
people. 2
pm
Mr.
Campbell: I understand the point well. We are consulting
those groups about what might go into the code. The Home Secretary has
made it clear that we shall have the most extensive consultation
process possible, so we are looking at what further measures we can
take. I am not willing to say to my hon. Friend the Member for
Northampton, North that that process will be in a particular form, of a
particular length on a particular day because issues will depend not
only on our progress in Committee, but the progress of the Bill. We are
keen for the code to be in place when the Bill receives Royal Assent.
Our ambition in respect of consultation will be shaped to some extent
by what progress has been
made. My
hon. Friend the Minister for Security, Counter-Terrorism, Crime and
Policing referred on Second Reading to extensive consultation. No one
can accuse us of having been shy in that regard. We have talked to a
lot of people and have taken many views into consideration. If my hon.
Friend the Member for Northampton, North is saying that we need to go
wider, I will certainly bear that in mind. I am not closing my door to
that proposal.
When the draft
code is in place, I will be happy to share it with the Committee and I
give a commitment to do that as soon as possible. The hon.
Member for Hornchurch talked about saying something about it before the
Bill is enacted, and it is certainly my intention to do that. As he
knows, however, the schedule is an enabling measure because the
mandatory code will be enacted through a statutory instrument. I am not
saying that there are, but if there were nine elements to the code we
could enact it through nine statutory instruments—if we wanted
to—or through one statutory instrument and treat it as a basket
of measures. [Interruption.] Whips and Ministers
are terrified at that prospect, but as members of the Committee know,
statutory instruments cannot be amended. We therefore want to consult
widely and have as much sign-up to the measure as possible, which
includes considering how much the parliamentary process reflects it. I
am happy to put the list of consultees in writing and to share the
draft code with members of the
Committee. I
wish to explain some of our problems with specific amendments.
Amendment 37 tabled by the hon. Member for Hornchurch concerns
“appropriate” versus “necessary and
proportionate”. Any Government action must be necessary and
proportionate, and we believe that “appropriate” captures
that definition sufficiently. We are looking especially at the
targeting of the measures. I understand the mandatory code argument
about all pubs, but we must remember that a series of other measures
can be applied locally to particular pubs. We are conscious of that,
and believe that targeting is part of the appropriateness of such
matters. A
licence could constitute a possession under article 1 of
protocol 1 of the European convention on human rights, and we accept
that human rights may be in play. The Secretary of State, as a public
authority, is required to act compatibly with the rights of the
convention and, in practice, conditions must be necessary and
proportionate. When talking to amendment 38, the hon. Member for
Hornchurch referred to the legal age for purchasing alcohol in light of
the recent discussions in Scotland. I wish to place it on the record
that we do not believe that that would be an appropriate way to deal
with the matter. I agree entirely with him that such matters should be
dealt with under primary legislation, if we decided to go down that
route. However, it is entirely inappropriate that a young man or woman
can fight for their country in Iraq and Afghanistan, yet not be able to
buy a pint of beer or a bottle of wine to celebrate their being back
home with their family, so I hope that the hon. Gentleman is reassured
by the fact that we have no plans to increase or decrease the age at
which alcohol can be
purchased. Amendment
40 would introduce a statutory requirement to consult before
introducing or changing the mandatory licensing conditions. I have
already talked about consultation, but the effect of that proposal
would be that whenever a condition was changed, there would have to be
a costly and lengthy consultation process. It would create an
unnecessary situation, and I hope that it will not be pressed to a
Division. Amendment
244, which was moved by the hon. Member for Chesterfield, would prevent
the Secretary of State from imposing any national mandatory licensing
conditions on all licensed premises. It would, however, still
allow
mandatory licensing conditions to be imposed on premises that hold a
club premises certificate, so even if we went down that route, that
would not be a suitable
measure. We
believe that there is strong and widespread public support for a
mandatory code. I have also given the Committee undertakings on sharing
information and on consulting as widely as possible, so, in the spirit
in which those undertakings were offered, I hope that the hon.
Gentleman will withdraw his
amendment.
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