House of Commons - Alcohol - Health Committee

Alcohol - Health Committee Contents

8 Licensing, binge-drinking, crime and disorder

208. The last 50 years have seen several important changes in the sale of alcohol which have led to a great increase in binge drinking with all its harmful consequences. 27% of young male and 15% of young female deaths were caused by alcohol. This is clearly a serious problem.

209. The most notable of the changes have been that:

An increasing proportion of alcohol has been purchased off-licence rather than from pubs. As a proportion of total expenditure on alcohol, purchases from pubs fell 12% between 1998 and 2007, while supermarket purchases rose 18%.[237] As a result:
- More people have drunk at home
- Under-age teenagers have been able to obtain cheap alcohol and drink it outdoors
- Young adults have begun the practice of 'pre-loading'; ie they get drunk at home before they go out to the pub or other venue
There has been a major reduction in the number of traditional pubs, although the number of licensed premises, including restaurants, has continued to increase
From the 1990s the night-time economy was promoted by local authorities and Government; magistrates found it increasingly difficult to block licence applications even where they considered them undesirable; they were no longer able to take any account of the 'need' for a new licence
As part of the night-time economy there has been a growth in the number of vertical drinking pubs; people standing up drink more quickly.

210. The Alcohol Strategy in 2004 sought to address the problems related to binge-drinking, crime and disorder by a series of measures. It claimed that the main vehicle for improvement was the Licensing Act 2003. This was supported by a set of voluntary Social Responsibility Standards introduced by the alcohol industry in 2005.

211. Three Departments were involved: DCMS which was responsible for licensing, the Department of Health and the Home Office.

The Alcohol Strategy's measures to address alcohol-related crime and disorder and the Licensing Act 2003

THE LICENSING ACT 2003

212. As well as transferring responsibility for licensing to local authorities, the 2003 Act introduced four statutory licensing objectives:

preventing crime and disorder;
securing public safety;
preventing public nuisance; and
protecting children from harm.

The Act contained "a number of provisions which seek to protect the public and prevent disorder; for example it is an offence to sell alcohol to a drunk or to a child." However, the legislation also promoted liberalisation, supporting 'proportionate regulation to give business freedom to meet customers' expectations'.

213. At the time the Bill was introduced, the Culture Secretary, Tessa Jowell, was quoted as saying that people would become more sensible drinkers, so the prevalence of illness would decline.[238] The DCMS Departmental Report 2004 claimed that the

Act reforms archaic licensing laws, strengthens competition and increases choice and flexibility for consumers. It introduces tough new measures to tackle alcohol-related crime and disorder and encourage a more civilised café-style culture in pubs and bars.

214. The operation of the 2003 Act was reviewed by the Government. According to the DH, the review, which was published in March 2008, revealed that the overall volume of crime and disorder had with local variations remained stable. Licensing authorities and enforcement bodies were using the new freedoms conferred by the Act, but had not sufficiently used 'the considerable powers granted by the Act to tackle problems...there was a need to rebalance action towards enforcement'.[239]

215. Other witnesses were more critical, arguing that the Licensing Act had little to do with reducing alcohol-related problems and had failed to adopt a public health approach.[240] Some have claimed that the DCMS's main aim in introducing the Licensing Act was not to reduce alcohol-related crime and disorder but to liberalise the licensing regime. It was pointed out that we had not achieved the civilised cafe-style culture the DCMS had dreamt of in 2004.[241] Crime and disorder might be stable but were spread over a longer period and later into the night which was a dubious advantage. Dr Anderson told us:

pubs stayed open on average only an extra 27 minutes. No real change in alcohol-related crimes was found up until 3am, but a 22% increase in crimes occurred between 3am and 6am. In other words, alcohol-related crimes were shifted until later in the night. In some studies, changes in the Licensing Act appeared to have little impact on the numbers of people treated for injuries sustained through assault, although in other studies, there were large increases in the number of night time alcohol-related attendances in accident and emergency departments.[242]

216. While the principle of giving local authorities the power to control licensing was widely applauded, the Government regulations which governed how they could exercise these powers were criticised for being far too favourable to the large pub chains. Criticism related to the restrictions the Government had placed on licensing authorities, which severely constrained their ability to operate an effective licensing regime; it was too difficult to prevent new licensed premises from opening almost regardless of their effects on existing traditional pubs and the local population. Dr Nicholls informed us:

Arguably, the more historically significant element of the 2003 Act was the decision to move licensing from magistrates—where it had sat since 1552—to local authorities. In principle, this represented a democratisation of decision-making; in practice, the national guidelines issued to local authorities meant that their discretionary power to reject licence applications was severely curtailed.[243]

Similarly, it was too difficult to remove licences from premises associated with rowdiness and drunkenness. Where local authorities wished to promote the 'night time economy', there were inadequate powers for local people to object despite the consequences in terms of anti-social behaviour and disturbance.

217. We considered a number of other aspects of the Act. Part 7 of the 2003 Act lists various offences relating to drunkenness and disorderly conduct. Under section 141 it is an offence to sell alcohol to a person who is drunk. Unfortunately, this provision has not been effective. We consider why below.

218. Some witnesses argued that too much emphasis had been placed on the effect of the Act on the on-licence trade, too little on off-licence sales.[244] The Act not only failed to tackle the main problem, the increasing volume of off-licence sales, but also exacerbated the situation by permitting shops and supermarkets to sell alcohol at extended opening times. We discuss the off-licence trade in the next chapter.

THE VOLUNTARY SOCIAL RESPONSIBILITY STANDARDS 2005

219. In 2005 voluntary Social Responsibility Standards were introduced by 16 trade associations and organisations in the alcohol industry. According to the Department these voluntary standards were intended to provide a comprehensive statement of the rules, regulations and additional commitments which the various parts of the alcohol industry had agreed to adhere to. The standards were based on a set of social responsibility principles that should apply to all activities relating to the production, distribution, marketing and retailing of alcoholic drinks, including the promotion of responsible drinking and 'the avoidance of any actions that encourage or condone illegal, irresponsible or immoderate drinking, such as drunkenness, drink driving or drinking in inappropriate circumstances'.[245]

220. In January 2008, the Home Office commissioned KPMG to undertake a review of the alcohol industry's voluntary standards. KPMG was asked to consider:

the extent to which on- and off-trade vendors adhered to the standards; and
whether the standards contributed to a reduction in alcohol-related harm.

221. The KPMG review indicated that the standards were not operating as the Government originally hoped. KPMG recognised that

Many firms invest relatively large sums in sponsoring programmes and projects that promote responsible drinking, willingly take part in exercises to monitor their performance and are very explicit on their websites about the effects of consuming alcohol. They can point to many initiatives they have taken through their Corporate Social Responsibility work.

Jeremy Beadles of the WSTA claimed that the study had showed that there was a lot of good practice and that breaches of Social Responsibility Standards by the off-licence trade had been few and when they had occurred they had been the fault of usually small organisations which had not signed up to the code.[246]

222. Nevertheless, in many respects the study is damning. Practices which KPMG observed frequently included:

People who appear to be under-18 frequently being admitted to age restricted venues in which they cannot purchase alcohol legally;
the promotion of alcohol through low price offers, inducements by DJs to consume greater quantities, and glamorisation through links with sexual imagery;
encouragement to drink more and faster through shots and shooters being "downed in one";
sales to blatantly intoxicated people;
several health and safety issues inside bars and clubs e.g. overcrowding, broken glass and spilled alcohol;
poor dispersal practices (although there is some very good practice);
several instances of anti-social behaviour and low level crime (fights and assaults, urinating and vomiting in public places, criminal damage).

223. In conclusion KPMG argued that

Whilst this review has noted the excellent work done by many organisations, especially producers and their representatives, to demonstrate the principles of self-regulation, it has also noted the many poor practices, particularly in the on-trade, going unchecked.

We have not assembled any evidence which suggests there is any direct causal link between the impact of the standards and a reduction in alcohol-related harm. In the current trading climate the commercial imperative generally overrides adherence. Inducements to people to drink more and faster, to allow under-age people entry to restricted premises, and blatantly serving intoxicated people are evidence of this conclusion.

In driving responsible practice they (the standards) are ineffective because of a lack of consistent monitoring and enforcement. We have not assembled any evidence which suggests there is any direct causal link between the impact of the standards and a reduction in alcohol-related harm.

Changes following the 2007 Alcohol Strategy

224. Thus, by the time of the revised Alcohol Strategy in 2007, it was clear that improvements needed to be made. A new plan for dealing with underage drinking was proposed and partnerships and innovative schemes were encouraged. Most importantly, major legislative changes were made through the Policing and Crime Bill 2008 which was enacted in 2009.

SCHEMES TO REDUCE ALCOHOL HARMS EXPERIENCED BY UNDER 18S

225. In June 2008, the Department for Children, Schools and Families, the Home Office and the Department of Health published the Youth Alcohol Action Plan (YAAP), which set out measures to address drinking by young people, including working with the police and courts to tackle drinking in public, providing clear information for parents and young people, and working with the industry to tackle underage sales and to promote the responsible sale of alcohol.

226. We took evidence about a number of initiatives to reduce the harm to young people from the industry and the police. The Wine and Spirits Trade Association is part of schemes in St Neots and Canterbury involving the Retail of Alcohol Standards Group (RASG) and Cambridgeshire and Kent Trading Standards. The projects combine "enforcement, education and community involvement to tackle under-age drinking in a holistic way". A key part of the scheme has been stopping and searching young people and confiscating any alcohol they have in their possession. The WSTA was enthusiastic about the significant benefits which the schemes had brought about.[247] The actions taken as part of the St Neots Community Alcohol Partnership, the outcomes and an assessment of the benefits are shown in the table below, which contains an extract of the official WSTA report.

The benefits of the scheme are still being seen. Since its inception the scheme has delivered the following:

42% decrease in anti-social behaviour incidents in the St Neots area from August 2007 (pre-project) to February 2008 (post-project)

94% decrease in under-age people found in possession of alcohol

92% decrease in alcohol-related litter at key hot spot area.

Joint working between police, Trading Standards and retailers

Actions Stakeholders Outcomes

Trading Standards worked with store managers (visiting them during the day) and positioned themselves in retail outlets to advice any alleged offenders (young people or proxy purchasers) of the reason their purchase was refused. 129 young people were stopped and searched by the police Police, Trading Standards and retailers First nine joint enforcement operations: 32 young people found to be in possession of alcohol.

Tenth enforcement operation: 1 person in possession.

Eleventh enforcement operation: 2 in possession.

Overall decrease of 94%

POLICING AND CRIME ACT 2009

227. The main new means of addressing concerns about failings in the licensing regime and in the consumption of alcohol by underage drinkers, are the measures in the Policing and Crime Act 2009. Aspects of the Bill had been subject to consultation in the summer of 2008 and again in 2009. The Bill was given Royal Assent in November 2009. The regulations to give effect to many of the improvements have not yet been made.

228. According to the Government the legislation:

Includes measures to prevent the sale of alcohol to young people under 18 and to prevent them from drinking in public places; this filled a gap in the 2004 Strategy which recognised the problem of underage drinking in the street or at home.
Introduces a mandatory code "to get rid of some of the worst promotions"; this was introduced in response to the failings uncovered in the KPMG study.
Revises the Licensing Act 2003, to give licensing authorities the powers to allow them to take action pro-actively against irresponsible premises without having to wait for the police or others to complain.

Below we look at the mandatory code and the new power to take action against irresponsible premises.

A mandatory code

229. Following the KPMG Report, in July 2008 the Department of Health's report, Safe, Sensible, Social - Consultation on further action, sought views:

on whether existing voluntary codes should be made mandatory. We intend to discuss what a code might contain with interested stakeholders over the coming months.

Alan Campbell the Home Office Minister, told us that following the consultation in 2008 the Government had decided to introduce a mandatory code:

What we are doing, of course, is moving beyond a voluntary code because sections of the industry will not face up to their responsibilities as the code has suggested that they should. That is why we are moving to a mandatory code under the Police and Crime Bill to get rid of some of the worst promotions, but also to introduce some local licensing arrangements that can be applied to groups of premises in an area where there is still a persistent problem.[248]

230. The following five mandatory licensing conditions were put out to consultation in the summer of 2009:

A ban on the most irresponsible promotions, such as "all you can drink" offers
A ban on alcohol being dispensed directly into customers mouths—so-called "dentists chairs"
Requiring on-trade premises to make smaller measures available, such as 125ml wine
Requiring on-trade premises to make free tap water available
Requiring online and mail order retailers to have robust age verification schemes in place.[249]

231. These proposals received much support. The increasing use of larger glasses has meant that customers have been drinking several units in one glass, often without realising it.

232. The Government is still deciding which conditions to implement. The specialist press has reported that the mandatory code is among a raft of regulations affecting business that Lord Mandelson has "ordered" to be delayed due to the recession. However, according to the same reports, the Home Office remains confident that the policy will be implemented.[250]

Local conditions

233. The consultation in the summer of 2009 had also considered making provision for 'locally applied discretionary conditions' on licensees in the Policing and Crime Bill. These were conditions' which licensing authorities would be able to pick and choose to impose on two or more premises in their area if they felt the premises were a) causing a nuisance b) that nuisance was alcohol related c) that nuisance was likely to be repeated and d) it was appropriate to apply conditions to mitigate the nuisance. These were measures like banning happy hours, banning glass containers at certain times and prohibiting discounts over a certain volume.

234. The Government removed the provisions for these conditions from the Bill in light of the feedback received at the regional stakeholder consultation workshops held over the summer where both licensing authorities and the licensed trade expressed concerns about the locally applied conditions. Licensing authorities were concerned about the practicalities of imposing conditions on multiple premises and were worried that any attempt to do so would be automatically appealed by the trade, and the trade were concerned that having conditions imposed on groups of premises meant that responsible premises could be inadvertently caught up and have the conditions imposed.

235. However, the Government claimed to have replaced these conditions with tougher powers for licensing authorities. At Report stage in the House of Lords the Bill was amended to allow members of the licensing authority (i.e. local councillors) to act as 'interested parties' under the Licensing Act 2003. This allowed them to make representations to instigate a licensing review whereas, at present, licensing authorities can only hold a licensing review if the police, trading standards, local residents or other authorities request one. Following a licensing review, the licensing authority can take a range of actions, including adding new conditions to the licence, modifying the hours or suspending or revoking the licence. So, it is claimed, the change will give local authorities much more flexibility in the type of action they can take as well as still allowing them to take action pro-actively without having to wait for the police or others to complain.

Continued weaknesses in the licensing regime

236. While the Policing and Crime Act 2009 has improved the situation, there remain a number of weaknesses in the licensing regime. Two were of particular concern to us:

SELLING ALCOHOL TO A PERSON WHO IS DRUNK

237. The effectiveness of legislation relies on enforcement. We were therefore surprised to discover that s.141 of the 2003 Act is scarcely enforced.

238. ACPO informed the Committee that the Police did not need new powers because they relied on softer measures, seeking to develop partnerships:

Q450 (Stepehen Hesford) So there is nothing that comes to mind in terms of additional powers?

Mr Craik: No. In fact ACPO's position at the moment is two-strand. We want to get into this and start to develop partnerships, and this end-to-end management of drinking in public places is something we should share together with our partners, and we think that is absolutely right. It should not just be an enforcement thing. The other thing we want to move to is away from all this doom, gloom and disorder.

Chief Constable Craik's submission went further in explaining how the Police could do this:

Generally the police work in partnership with licensees and the Security Industry Authority to effectively manage people becoming so drunk on licensed premises that they require eviction. If there is a requirement to evict drunken individuals from licensed premises then the police will then use their enforcement powers in relation to any offences pertinent to the individuals concerned.

There are effective Pubwatch schemes running nationally which allow for exclusions to be placed on individuals from entering specific licensed premises due to previous behaviour. Since 1st January 2009 in Northumbria Police alone 144 Pubwatch exclusions have been served. This in itself is a deterrent to the public, and a punishment to those who do offend whilst in licensed premises. The Best Bar None nationally accredited scheme provides an incentive to licensed premises to ensure they act responsibly in relation to the management of their licensed premises.[251]

239. The Home Office submission argues that it has a programme of work in place to address weaknesses in the enforcement of current legislation:

Last year we trained over 1,300 front-line practitioners in the full range of alcohol related tools and powers available to them and we have recently begun a series of 40 workshops to train a further 2,000 to 2,500 practitioners in our priority areas. Earlier this year we spent £1.5m on targeted enforcement campaigns in the 40 to 50 areas of most concern to us, that is those areas with high levels of alcohol related crime and high public perceptions of drunk or rowdy behaviour, and we have also spent a further £3m supporting local alcohol related partnership activity.[252]

240. The Home Office also argues that there are practical difficulties in enforcing the law regarding the offence of selling alcohol to someone who is intoxicated since it requires the police to be present when the sale is made:

Large-scale enforcement would therefore be extremely expensive and is impractical. Instead, we believe that it is more effective to focus on training those serving alcohol to spot and deal with those who are intoxicated and we are working closely with the industry through schemes such as Pubwatch and Best Bar None to achieve this. We are also considering the issue of training in our public consultation on the new code of practice for alcohol retailers.

241. The Committee questioned Ministers about why the Act was not enforced:

Q903 Dr Naysmith: Following up on what has just been said, given that it is illegal to serve a drunk person in a pub, why is it that the number of prosecutions is so pitifully low?

Mr Campbell: There are some prosecutions.

Dr Naysmith: It is a tiny number.

Mr Campbell: It is a small number. The simple answer to your question is that it is quite a difficult offence to enforce because the offence is about knowingly selling to someone who is intoxicated. Unless there is a police officer and a huge commitment by the police in an area to see this happen, it is quite difficult to enforce that. There are two other aspects to it which I think would take us further. One is about better training for bar staff to know when to stop serving someone, the signs to see and also the way in which they might go about that. The second point of course is to work with licensees in a particular area, often through something like Pub Watch, where there are some very good schemes of pub watching practice where licensees actually agree to enforce standards.

242. Few people have been prosecuted for transgressions to the Licensing Act 2003. In 2006 only six people were found guilty of supplying alcohol to under 18s.[253] Few people have been prosecuted for, and even fewer found guilty of, selling alcohol to a drunken person.[254]

LICENSING AND PUBLIC HEALTH

243. Since the Police and the Home Office are unwilling or unable to enforce section 141 of the 2003 Act, we considered other ways of achieving the same result. One contributor to a RAND study on licensing laws stated, with reference to licensing requirements: "[i]f the system has effective power to suspend or revoke a license in the case of selling infractions, it can be an effective and flexible instrument for holding down rates of alcohol-related problems."

244. This should be possible because under the 2003 Act the police or the fire authority, or an "interested party", such as a resident living in the vicinity of the premises, may ask the licensing authority to review the licence because of a matter arising at the premises in connection with any of the four "licensing objectives". Presumably, if the police had evidence of persistent unlawful sales, one would expect them to press for a review, making reference to the crime prevention objective, but it is unclear whether they have done this.

245. The licensing system is not working well. Chief Constable Craik of ACPO told us:

… I think there is an anxiety, that they feel constrained by the legal power of the big organisations. In industry they can turn up with lots of very expensive barristers and challenge decisions,… My view is I would like to see, certainly some of my colleagues would like to see, more licensing authorities at least trying to be more in tune to what local people say.[255]

I would be supportive of that. I would like to see the local community having a more powerful voice in how licences were granted.[256]

the rejections, refusals and revocations are very, very robustly legally challenged, and that puts them in a very difficult position. As much as local councillors may want to provide what local opinion suggests is appropriate for them, they have to get everything right, and that is quite a tough challenge.[257]

246. During our visit to Scotland we discussed the different approach taken there to licensing. The Licensing (Scotland) Act 2005 which comes into force in September 2009, and is in part based on the recommendations of the Nicholson Committee which was charged with reviewing all aspects of liquor licensing law and practice in Scotland. The Nicholson Committee was asked to give particular reference to the implications for health and public disorder and to recommend changes in the public interest. The Act sets out five licensing objectives that Licensing Boards must seek to promote and take into consideration when granting or renewing licences. Four of the five objectives are similar to the objectives in England, but there is an additional fifth objective, namely 'protecting and improving public health'.

247. In practical terms, as we discovered in Scotland, this puts public health at the forefront of policy makers minds in Scotland, and means that the purpose of licensing extends beyond those aspects of alcohol use which are illegal, such as purchase by those under age, or lead to illegal behaviour, like public disorder, and includes actions which actively promote public health, such as tackling low cost alcohol and other marketing practices which lead to increased health harm. It could also enable licensing authorities to once again consider whether there is a need for more licensed premises in an area.

Conclusions and recommendations

248. Alcohol-related crime and anti-social behaviour have increased over the last 20 years as a result of the development of the night time economy with large concentrations of vertical drinking pubs in town centres; under-age drinkers in the streets have also caused problems. The Alcohol Strategy 2004 recognised these problems and claimed that they were being addressed by a number of measures including the Licensing Act 2003. In addition, the alcohol industry established voluntary standards to govern the promotion and sale of alcohol.

249. The worst fears of the Act's critics were not realised, but neither was the DCMS's naive aspiration of establishing cafe society: violence and disorder have remained at similar levels, although they have tended to take place later at night. The principle of establishing democratic control of licensing was not realised: the regulations governing licensing gave the licensing authorities and local communities too little control over either issuing or revoking licences, as ACPO indicated. KPMG examined the alcohol industry's voluntary code and found it had failed.

250. Problems remained and the 2007 Strategy introduced new measures. Partnership schemes such as the St Neots Community Alcohol Partnership were established. The main changes are being introduced by the Policing and Crime Act 2009 which gives the police greater powers to confiscate alcohol from under 18s, introduces a mandatory code in place of the industry's voluntary code and has made it easier to review licences, giving local authorities the right to instigate a review. We support the introduction of mandatory conditions and urge the Government to implement them as a matter of urgency.

251. Despite the recent improvements, much needs to be done given the scale of alcohol-related disorder. It is of concern that section 141 of the Licensing Act 2003, which creates the offence of selling alcohol to a person who is drunk, is effectively not enforced despite KPMG's finding that this behaviour is frequently observed. We note the police and Home Office's preference for partnerships and training, but do not consider these actions should be an excuse for not enforcing a law which could make a significant difference to alcohol-related crime and disorder. We call on the police enforce s.141 of the Licensing Act 2003 more effectively.

252. We note the concerns of ACPO and other witnesses about the difficulties local authorities have in restricting and revoking licences. The Government has made some improvements in the Policing and Crime Act 2009, but must take additional measures.

253. In Scotland legislation gives licensing authorities the objective of promoting public health. Unfortunately, public health has not been a priority for DCMS. We recommend that the Government closely monitor the operation of the Scottish licensing act with a view to amending the Licensing Act 2003 to include a public health objective.

237 AL 59 Back

238 Independent 23.11.05 Back

239 Ev 04 Back

240 Ev 177 Back

241 Q 433 Back

242 AL 58; the DCMS review is published as, Evaluation of the impact of the Licensing Act 2003, March 2008, summary of findings, pp7-8, http://www.culture.gov.uk/images/publications/Licensingevaluation.pdf Back

243 AL 59 Back

244 Ibid. Back

245 The Code was

To promote 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.

To take all reasonable precautions to ensure people under the legal purchase age cannot buy or obtain alcoholic drinks.