Examination of Witnesses (Questions 164
- 176)
TUESDAY 28 OCTOBER 2008
MR JAMES
LOWMAN AND
MR JEREMY
BEADLES
Chairman: For the final part of this
session can I welcome James Lowman, the Chief Executive of the
Association of Convenience Stores, and Jeremy Beadles, the Chief
Executive of the Wine and Spirit Trade Association. I know that
Nigel Evans wishes to make a short statement and then he is going
to commence the questioning.
Q164 Mr Evans: I am declaring an
interest in as much as I own a retail convenience store in Swansea
which has an off-licence department in it. James, what have been
the benefits of the Licensing Act for the trade and for its customers?
Mr Lowman: The Act has created
more flexibility around local decision-making by local authorities,
with case-by-case conditions placed on licences and so on. It
has led to opportunities for longer hours, albeit they are pretty
rarely taken up in our sector. Most convenience stores open long
hours anyway, but very few have taken the opportunity of the Licensing
Act 2003 to extend those hours. Customers could then benefit through
that greater flexibility and greater opportunities to access the
whole of a store rather than, as under the old Act, certain parts
of the store being locked up at certain times. The costs are significant
for convenience stores. Most of the benefits in terms of reduced
costs under the Act have accrued to pubs and clubs and those who
have public entertainment licences because they have seen those
licensing systems brought into one and that has made a saving
for our members. You would not expect any convenience stores to
have public entertainment licences and so we have seen a very
significant increase in costs from around £30 for three years
for the old licence up to a cost of well over £100 a year
under the current system, so it has been a massive uplift in cost.
Q165 Mr Evans: How do you think the
enforcement agencies should proceed if they suspect that a retail
outlet may be breaching the conditions of its licence?
Mr Lowman: They should—and
the Act provides for it—speak to that premises. They should
make sure they have evidence of how the licence is being breached.
If the type of breach was, for example, selling to under-age people—and
the likely type of breach varies between pubs, clubs and off-licences—then
evidence should be gathered. I think the best approach is to work
with the retailer to try and improve standards, to try and address
any issues around training and so on. If the retailer is not improving,
there are opportunities to place conditions on that licence which
are appropriate to that specific premises, and then ultimately
the local authority can seek revocation of the licence. If someone
is irresponsible and not improving and showing no signs of improving,
we would entirely support the revocation of a licence in those
circumstances.
Q166 Mr Evans: What about sending
in people who are under age?
Mr Lowman: To buy? As test purchasing?
Q167 Mr Evans: Yes.
Mr Lowman: That tends to happen
a lot. Local authorities and the police can do that activity either
on the basis of trying to gather evidence for a licence review
by targeting specific premises or, probably more likely, as part
of an authority-wide campaign or a targeted campaign on a certain
part of that local authority area to try and gather evidence about
under-age purchases that are taking place. It may be based on
a licence review or it might be based on other evidence or it
might just be pretty much random.
Q168 Mr Evans: The fact is that there
is always this general impression that if people who are under
age are drunk or are drinking they have not got their alcohol
from a pub, they have got it from an off-licence, or it is somebody
over-age going in and getting it for them or youngsters going
in themselves and the retailer just selling it to them willy-nilly
because they just do not care, they just want to make a sale.
What would you say to that accusation?
Mr Lowman: I do not think that
is a widely held perception. All the evidence from test purchasing
campaigns shows that the off-trade generally does better than
the on-trade in test purchasing. There are different sample sizes
and we can argue all day about how those figures have been arrived
at. There is certainly no evidence from those campaigns that the
off-trade is particularly bad in terms of its likelihood to sell
to under-age people. In the real world, in pubs, clubs, large
and small shops, specialist off-licences, convenience stores,
however you want to categorise them, there are a very, very small
number of people who deserve very strong enforcement. The vast
majority of people want to try to uphold the law and stay within
the law. People make mistakes in all parts of the sector. I cannot
say none of ours members has ever sold to someone under age because
they have, but I think it is a problem that goes right across
the trade and the solutions are improving. Certainly in our sector,
while I am absolutely not trying to shift the blame to someone
else and say it is not our problem, it clearly is, it is an issue
we have been improving on. We look better than other parts of
the sector when the test purchase results are published.
Q169 Mr Evans: As far as your own
guidance to your own members is concerned, do you give any guidance
about the retail of alcohol? Do you think there is a problem,
particularly with smaller enterprises, where there is a high turnover
of staff in that there is not sufficient training for staff about
the retail of alcohol?
Mr Lowman: Yes. We promote the
Challenge 21 policy and indeed I think over time that will move
up in terms of the age limit a person will be challenged at. The
purpose behind that is to say that if someone looks under 21 they
should be challenged for proof of age to give the retailer and
member of staff leeway. Judging whether someone is 18 or is 18
years a day or 17 and 363 days is impossible. You have to give
yourself some leeway to make a judgement about that person's age.
We are bringing about a cultural change in the trade here through
cross-industry effort, including some large retailers as well,
where you now are increasingly seeing people who are 19, 20, 21
or even older being challenged for proof of age. That is really
important and it is good that that is happening. In terms of training,
there is a high turnover of staff. Increasingly professional operators
are making sure that people, before they get anywhere near a till,
are trained in a number of provisions of the law and management
of the business, but this is probably the number one issue. When
we talk to retailers about business this is number one because
the penalties are very severe and people can and do lose their
licences on the basis of making under-age sales.
Mr Beadles: We provide the secretariat
to the Retail of Alcohol Standards Group and that is a pan-industry
grouping of large and small business and James is a part and the
British Retail Consortium is a part and Challenge 21 is the principle
it was based on, but we have moved beyond that and we have shared
best practice in terms of training and in the course of the last
couple of years we have dramatically changed how we train staff.
It was very simple, it was based around "Here is the law.
Do not break it." What we have discovered is it is a much
more complex issue than that. We have involved a couple of universities
in working out why, when you have just trained someone and you
send them out into the shop floor, 20 minutes later they sell
to an under age person. What makes them do that? They are not
bad people on the whole so why do they do it? A lot of it comes
down to the psychology of how you assess someone's age and then
how you make the challenge. We have discovered that men and women
do things very differently in terms of how they assess age and
how they make a challenge. We have been working on the training
programmes to get them to have a better understanding of how you
work out how old someone is and then how you make the challenge
in a way that does not lead to confrontation, particularly in
the late night environment where that can be a serious problem.
We are developing Challenge 21 and some of the industry have already
moved towards Challenge 25. We think as an industry we are ready
to move to Challenge 25 because enough 21 and 22 year olds have
ID cards now that we can move there. The big project and the big
work that we have been doing over the last two years is a project
called Community Alcohol Partnerships which was trialed in a little
place called St Neots in Cambridgeshire where we had some really
dramatic impacts by working with local enforcement, local police,
trading standards, local health and local education and the parents
of the community. It is not just about stopping selling to those
under age, it is about tackling under-age drinking, why young
people want to drink, where they drink and how you tackle that.
The results were very, very impressive, more than we could ever
have hoped for. It is now seen as a model of best practice. It
has been rolled out to Cambridge city. They are rolling it out
into the whole of Cambridgeshire. We are starting it in Reading,
in north Yorkshire, in the Isle of Wight and Bath and in the middle
of next month we will be announcing a partnership with Kent to
roll the Community Alcohol Partnerships into the whole of Kent,
so we are taking on an entire county. That is all about getting
local people brought in to tackle local problems and getting the
local papers involved in recognising where the issues are and
that comes down to finding out who the bad eggs are, finding out
who are the ones prepared to sell to kids or sell to drunk people
and dealing with them because the people who run our shops and
stores are part of the community, they do not believe that you
should be selling alcohol to kids or to drunk people and they
see themselves as the first line of enforcement, not the problem
and they want to work in partnership with local police and local
trading standards to stop them. Tackling something like proxy
sales is incredibly difficult without the support of local police
and local trading standards officers because as a shop owner you
do not know whether someone has sent their kid in or an adult
in to buy the product. Working with trading standards means you
can tackle those problems.
Q170 Chairman: Jeremy, in your submission
you concentrated specifically on the attitude taken by local authorities
and what you describe as the "excessive burdens" being
imposed by some authorities. Where do you think the problem lies?
Is it the guidance from DCMS which is insufficient or is it that
local authorities are exceeding their powers?
Mr Beadles: There are elements
of both. The majority of local authorities we do not have any
issues with and some provide really first class examples. The
work that they have done in Cardiff city with the Millennium stadium
there has been absolutely superb in terms of how they have built
relationships with licensed premises. In some ways I think the
guidance is not clear on some issues and some of it is enthusiastic
licensing officers sometimes coming up with what they think are
good ideas, but actually they provide problems on a local basis
and some of it is just how they interpret the guidance. In terms
of strengthening the guidance, I think we would like DCMS to look
at whether there are some things that could be ruled out as not
really appropriate, including requests for wiring maps as part
of the licence application or things under the Food Safety Act
and things like that. The problem with including that stuff is
it is covered in other regulations already, but also if you include
it in a licence application and someone has a problem with something
that has gone past its sell-by-date then theoretically they could
lose their licence for it. That is not what the licence was for
in the first place. Certainly we have seen some quite enthusiastic
police forces come up with some ideas that on the surface look
quite good but when you delve into them they do not necessarily
present solutions.
Q171 Chairman: On the other hand,
the convenience stores have argued particularly about the fee
structure and the cost of this. You will be aware that as a result
of the Elton review fees may have to increase further in order
to cover fully local authority costs. What is your reaction to
that?
Mr Lowman: A number of councils
are working within the current fee levels and are able to deliver
the services they need to deliver on that basis. I think we should
be looking at what they are doing and trying to roll that out
as best practice. I do not accept that there is necessarily a
need for an increase in fees. From our point of view, we already
bear a huge proportional part of the fee increases put into the
most recent Act. I think any change in fees needs to be more proportionate
and needs to have a steeper grading in terms of which fees are
applicable for different sizes of premises and different types
of premises. There has been mention today about some of the costs
associated with applications. There are other things that can
be done to reduce the costs, things like changing advertising
requirements for local papers and the fact that currently an applicant
has to copy their application to seven different agencies. These
things are not best regulation, they are not efficient and we
should look at some of the reasons why the costs might be as high
as they are, both costs borne by the applicant and obviously each
of those seven agencies having to process that application.
Q172 Chairman: Can I just explore
with you a couple of these costs which you have identified in
your submission? Let us look at lawyer costs. How often does an
applicant require professional legal advice?
Mr Lowman: Almost all new applications
are done with legal advice. This is one of the things that has
failed to transpire with the new Act. Under the old Act it was
£30 for three years, it was less expensive in terms of the
statutory costs, but the people getting a licence were having
to go to the magistrates' court and so they felt they should have
a lawyer present with them. There was a sense that moving to a
local authority administered scheme would allow people to cut
out those legal costs. The reality of just how important an alcohol
licence is to people, the conditions and the approaches to alcohol
licence applications that some local authorities have adopted—and
there are many excellent local authorities—have made a lot
of applicants very cautious about their application and they clearly
want that legal support.
Q173 Chairman: You also mentioned,
in terms of the personal licence, a qualification fee of £150.
What exactly is that?
Mr Lowman: That would be for obtaining
a British Institute of Innkeeping (BII) qualification. We are
in favour of staff being trained and certainly personal licence
holders being trained to BII standards, but that cost is borne
as part of a new application.
Q174 Chairman: Presumably it always
was the case that you would encourage—
Mr Lowman: No, it was not. Previously
you had to be judged to be a fit and proper person. There is a
case for saying that training is a more objective way of judging
that than the previous test, but that was not required under the
previous Act.
Q175 Chairman: In terms of relieving
the burden, as was indicated earlier, not only do most people
say they do not particularly want to have a completely new Licensing
Act, I think it is unrealistic to suggest the Government is going
to have to make major legislative changes. What would you like
to see changed that can be done perhaps through guidance to help
your members?
Mr Lowman: Guidance is the answer.
We are not pushing for a new Licensing Act for the reasons you
have stated. I think we need guidance which focuses on a number
of points. Firstly, the evidence base around conditions being
placed on licences, not just the evidence base of things happening
in that area or things happening at that premises, but the cause
and effects of conditions, ie how will that particular condition
improve issues around alcohol harm, under-age drinking, whatever
issue is identified in that area that is in line with licensable
objectives. What is the cause and effect between conditions and
outcomes there? We need to refocus case-by-case. Jeremy has mentioned
some examples of local authorities perhaps pushing at the edges
of their powers under the Act. One of the very important parts
of the Act is that conditions have been placed on licences on
a case-by-case basis. If one store in a town has certain problems
it does not mean to say that all the stores in towns have the
same problems and should be treated in the same way. Too often
now we are hearing of examples where local authorities are trying
to place standard conditions across all types of premises, ie
all shops in an area and that is absolutely against the Act. If
that proposal to impose that condition had gone in front of the
magistrates' court it is highly unlikely it would get through
judicial standards of evidence and cause and effect. It is a very
small minority of local authorities who are not interpreting the
Act as we think appropriate. We need to make sure that they are
only bringing in conditions when the evidence is up to that standard.
Just because we are not using the magistrates' court anymore does
not mean that the evidence base which affects these people's businesses
should be diminished.
Mr Beadles: I would like to add
a real life example to that one because it brings into play a
lot of what James was talking about, which is that in Ealing recently
local police and local trading standards tried to apply a blanket
condition across all shops prohibiting the sale of any beer or
cider over five and a half per cent. That might seem like an entirely
reasonable condition if what you are seeking to do is to stop
shops in a particular area selling strong beer/cider to homeless
people. If that is what the aim is it can be seen as an entirely
realistic condition, but applying a blanket condition across a
whole range of shops actually means that you are requiring them
to take off the market most of our premium ciders and beers. Most
premium ciders in the UK—and we have a serious heritage
and industry—are over five and a half per cent. In seeking
to tackle one issue the blanket condition can have a disproportionate
effect on those kinds of businesses and if that spreads across
the whole country you could have a really damaging impact on a
home produced marketplace when actually what you were trying to
tackle was something different.
Q176 Chairman: How do you address
that?
Mr Beadles: It is to do with the
guidance but also looking at it on a shop-by-shop basis. If there
is a shop that has a serious problem with homelessness and drinkers
around the shop area, they are more than happy to have a conversation
with the local licensing authority about the rules. They may not
have a problem with that at all, but they will probably not want
their premium products to go as a result and they would not necessarily
want to see it as a blanket condition across everywhere. We represent
everyone from very big to very small and very specialist businesses.
We would not want to see that kind of condition applying to specialist
businesses that make their living through selling these products.
Chairman: I am sorry but we are going
to have to stop there. We were slightly delayed in starting the
final session. Thank you both very much for coming.
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