Police Reform and Social Responsibility Bill

MEMORANDUM SUBMITTED BY THE WINE AND SPIRIT TRADE ASSOCIATION (PR 43)

Introduction

1. The Wine and Spirit Trade Association welcomes the opportunity to submit evidence to the Public Bill Committee stage of the Police Reform and Social Responsibility Bill. The proposals that affect our members relate to licensing reforms and the Late Night Levy.

2. The WSTA is the UK organisation for the wine and spirit industry representing over 310 companies producing, importing, transporting and selling wines and spirits. Our members include retailers who, between them, are responsible for thousands of licenses.

3. We work with our members to promote the responsible production, marketing and sale of alcohol. An overview of some of the initiatives we are involved with can be found at Annex 2.

General Comments

4. The WSTA wholeheartedly supports the principles of targeted and evidence based intervention and share the Government’s concern about the misuse of alcohol and its effects on our society. However, we have misgivings about the implications of some of the specific proposals in the Bill. There is a risk that the changes to the Licensing Act will:

§ Tip the balance of the licensing regime against licencees despite the great progress that has been made in responsible retailing and due diligence.

§ Increase costs to businesses that are already under pressure. The Bill Impact Assessment acknowledges that the increased level of regulation will impact on responsible businesses rather than just irresponsible licence holders [1] .

§ Make businesses less able to participate in or fund voluntary initiatives to reduce alcohol misuse.

§ Result in even greater inconsistency between the way licences are administered and enforced between different local authority areas.

5. Tackling alcohol related problems in local communities should involves the local traders as partners instead of seeing licensees as the problem,. Experience has shown that using businesses as part of the solution to alcohol related problems can yield results quickly and efficiently. Much has been achieved in co-operation with business, with many companies already showing their sense of responsibility by supporting schemes with funding and employee time. The WSTA and a number of our members and others in the industry are currently working closely with the Department of Health on the Public Health Responsibility Deal.

6. Listed at Annex 1 are a number of voluntary initiatives that showcase how alcohol misuse can be reduced when businesses are seen as part of the solution instead of as part of the problem.

Specific Comments

( Part 2, Ch. 1, S. 103) Making relevant licensing authorities responsible authorities

7. This measure raises concerns as, under the Act, Licensing Authorities have a role to play as adjudicators in the licensing system. Under this proposal local authorities will have the power to initiate reviews that they will ultimately judge, creating serious concerns about fairness. Local authorities are already well represented in the licensing process; the power for local councillors to object to any licence in their area came into force as recently as 2010 [2] . The impact of this change has not yet been assessed and there is no evidence of a need for more powers.

8. The Government has stated that "there will be a separation of responsibilities within the licensing authority to ensure that different functions are not exercised by the same individuals. This regime is similar to that which operates under the Gambling Act 2005 and works well." It is not clear what the Gambling Act provisions are and how they will ensure fairness. At the time of the Policing & Crime Act 2009, Government reassured businesses that the Local Authorities (Model Code of Conduct) Order 2007 would safeguard against unfair decisions resulting from local councillors both making representations on and judging reviews. However, it was recently announced that the Code is to be scrapped. It is not therefore clear how a separation of responsibilities within the licensing authority can be ensured.

(S. 104) Designating health bodies as a responsible authorities

9. Under the public safety objective of the Licensing Act, health bodies can usefully share information and concerns about A&E services and similar issues. However, the interventions of health authorities could become a hindrance if they are not relevant to the licensing objectives or refer to too wide an area to be relevant to individual premises.

10. In Scotland, health is a licensing objective but licensing boards have still experienced problems with local health bodies make standard objections to licences on health grounds, whether they are relevant or not [3] . Such use of the licensing system is costly for the local authorities who have to hold hearings as well as for businesses, and forces licencees to routinely hire specialist law firms to defend their licences – unaffordable for all but the largest players.

(S. 105-8) Removing the requirement for interested parties to show vicinity when making relevant representations.

11. This will allow national groups from outside the local authority area to make representations, even though they are not directly affected by the licence in question. The current definition of ‘in the vicinity’ is purposely worded to allow licensing authorities flexibility when deciding which representations are relevant [4] , so the need for this change is not clear.

12. Premises licence applications will now need to be advertised to "persons who live, or are involved in a business, in the relevant licensing authority’s area and who are likely to be affected by it" [5] . This seems to be a better description of those who should be able to make representations on a license, i.e. that they should be within the local authority area and are directly affected. Alternatively, a similar provision to Section 158 of the Gambling Act 2005 could be used [6] .

13. To avoid a high volume of irrelevant representations, a robust definition of ‘vexatious and frivolous’ representations would be needed. It would also need to be made clear that representations must be relevant to the promotion of the licensing objectives in that local area and not country as a whole.

(S. 109-111) Reducing the burden of proof on licensing authorities

14. This measure would change the obligation for a decision to be 'necessary' to being 'appropriate'. It is not entirely clear how the word 'appropriate' will be defined by the Courts and it is likely to be a significant change to the way the licensing regime works.

15. Allowing less rigour in local licensing decisions could result in unnecessary burdens on business. Public money could also be wasted if initiatives are undertaken without their suitability to local problems and resources being properly assessed. With increased pressure on local authority budgets it seems that evidence based decision making should be promoted rather than downgraded. One WSTA member who applied for a small variation to their morning licenced hours for a number of stores in England and Wales had to undergo 50 hearings following objections. In a large number of these hearings, those who had made the objection could not back up their representation with evidence. Some were unaware that the variation being sought was in the morning rather than later night opening and some did not show up to the hearing at all. All the variations were ultimately granted. In cases like these, a lower evidence base could result in minor changes to licenced hours being rejected or unnecessary conditions being imposed on licences, without any benefit to the public.

16. Most local authorities already manage the licensing process very effectively. The problem seems to be that not all are as effective [7] rather than that evidential requirements are too high. A solution might be more collaboration and information sharing to help these local authorities work better, rather than lowering the bar for evidence based decision making.

(S. 118) Extending the period of voluntary closure for persistent underage selling to a minimum of 168 hours (7 days) and doubling the fine for persistent underage sales

17. All retailers accept that there have to be significant penalties in place for those who persistently sell alcohol to children. However, the definition of persistent underage sales was recently tightened to two instances in three months in the Policing and Crime Act 2009. A period of closure or fine and then a licence review with a revocation as the default option [8] is an extremely heavy penalty to pay, when these instances could have been unrelated mistakes rather than intentional selling.

18. Currently, using a closure notice of up to 48 hours allows the police to deal with two underage sales quickly and cost effectively, in cases where perhaps the Premises Licence Holder has sufficient systems and procedures in place but has been let down by a lack of management control.  The premises effectively has 48 hours to ‘get its house in order’ by retraining, replacing staff, updating procedures or some other measure.  In the case where the sales were wilful, deliberate or perhaps foreseeable due to lack of adequate measures, then it maybe that a closure notice is not the appropriate course of action and that prosecution should be considered as the correct approach.  This would seem proportionate, workable and cost effective.

19. To date, the full £10,000 fine has not been issued so there seems to be limited value in doubling this sanction. A 48 hour closure notice for persistently selling alcohol to children was issued by police or trading standards officers 100 times in 2009/10.

20. Increasing this period from a maximum of 48hours to a period between 48-336 hours will mean that retailers are less likely to accept the voluntary closure notice and that more cases will have to be dealt with in the courts, increasing the costs for all involved. It is worth noting that some businesses could be placed at risk if they are not allowed to sell alcohol for two weeks. Small retailers operate on tight margins and a sudden decline in revenue can undermine cash flow and imperil the business.

21. Retailers have pumped resources into initiatives such as Challenge 25 and enhanced staff training, which have reduced underage sales significantly. While more work needs to be done, many local authorities now recognise that most children obtain their alcohol from other sources than buying it themselves, most commonly through ‘proxy purchasing’ when an adult buys alcohol for a child [9] . Retailers are now working with local authorities and police on Community Alcohol Partnerships to address this issue but there is plenty of evidence that existing legislation is not being fully utilised [10] .

22. There is no evidence that current penalties for persistent sales are inadequate. This measure ignores the improvements in underage sales due to the efforts of local authorities and retailers. Rather than adding to existing legislation, Government could build on the existing work being done locally by retailers, police and local authorities to clamp down on the supply of underage alcohol, both bought directly and by proxy.

(S. 119) Extending the flexibility of Early Morning Restriction Orders

23. The WSTA did not support the introduction of Early Morning Restriction Orders (EMROs) through the Crime and Security Act 2010 and we remain unconvinced of the principles behind them and their utility.

24. Although this proposal is intended to be flexible, unless there is a robust system to ensure that imposing an EMRO on each premises is justified, it has the effect of imposing a blanket ban on premises that may be trading perfectly lawfully. A blanket closing time for even a small area could see a return to the problems of pinch points and the "11’o’clock swill".

25. Imposing an EMRO could have serious consequences for a business whose customers expect to able to buy alcohol late at night (such as a hotel or 24-hour supermarket). These premises have a legitimate right to open late unless they are breaking the law, and their licenced hours will have been approved by the local authority. There also seems to be no provision to avoid a business that pays the Late Night Levy also having an EMRO imposed on them so that they are unable to remain open for the extra time they are paying for.

( Ch. 2, Sec. 124) Late Night Levy

26. This proposal is of concern as it would not discriminate between stores that are simply open late and those that are trading irresponsibly and adding to local problems. Powers to deal with these irresponsible traders already exist. Law abiding licensees already pay for services through business rates, corporation tax, licensing fees, excise duty and VAT.

27. Another concern with this clause is the fact that it applies to the entire Local Authority area. Local Authorities vary all over the country and some will only include one or two town centres, while the remaining area may not experience problems in the night time economy. However under the provision, every late opening premise would have to pay.

28. The introduction of any levy should only take place if there is proven disorder and in the specific area where it takes place. The amount levied on business should be transparent and based on evidence of the actual extra costs of policing. The projected annual levy amount [11] is more than the original application fee and the annual renewal fee. This has no relation to the cost of late night disorder in a specific community.

29. Local authorities will have discretion over which types of business and which schemes, they offer discounts on the levy to. There will need to be safeguards that this is done in line with competition law and with only the objectives of the Licensing Act in mind. Care must be taken that such measures are not used to favour a particular type of business and that it does not inadvertently create a captive source of revenue for a profit-making scheme.

30. Members of schemes that lower the cost of policing in other ways should also be included (many examples are listed at Annex 1). There is a danger that if such schemes are not offset against the levy, companies will no longer be able to continue them.

31. It is also worth noting that if the Government is looking for industry contribution to the costs of the night time economy, Business Improvement Districts (BIDs) can provide similar services on a voluntary basis through business contributions [12] . BIDs have successfully been used to deal with the night time economy in Birmingham Broad Street [13] and Kingston [14] .

Other issues:

Below cost selling ban

32. The Government has committed to implement a ban on below cost selling. Although this is not contained within this Bill, it is worth noting that that any pricing restrictions would only be workable if applied nationally. Any local variations would irritate consumers and cause chaos for national businesses (who buy their stock and set their prices for their stores across the whole country). Local businesses would also be disadvantaged by pricing restrictions as customers would be likely to leave their area to shop at normal prices.

January 2011

Annex 1 – Industry Initiatives

COMMUNITY ALCOHOL PARTNERSHIPS

Community Alcohol Partnership (CAP) projects bring together local retailers, trading standards and police to tackle the problem of underage drinking and associated anti-social behaviour.

Retailers work with local authorities to share intelligence about attempted underage purchase and proxy purchasing and larger stores share their training and facilities with independents. Police and local authorities carry out evidence based enforcement and work with local groups, such as schools and families, to address underlying reasons behind local underage drinking.

The independently evaluated project in Kent showed that CAP pilot areas saw a decline in 6 out of the 7 measures of different anti-social behaviour

There are now 26 CAP schemes in 11 counties in the UK. RASG is ambitious to implement these schemes more widely and has for the past year employed a project officer. This role is jointly funded by RASG retailers.

BEST BAR NONE

Best Bar None (BBN) is a national award scheme supported by the Home Office and aimed at promoting responsible management and operation of alcohol licensed premises. It was piloted in Manchester in 2003 and found to improve standards in the night time economy, with premises now competing to participate. It has since been adopted by 100 towns and cities across the UK and is now being taken up internationally.

The aim of BBN is to reduce alcohol related crime and disorder in a town or city centre by building a positive relationship between the licensed trade, police and local authorities.

BBN has proven its success by:

§ Reducing the risk of alcohol related harm, disorder and crime

§ Established benchmark of good practice

§ Recognising and rewarding responsible operators

§ Creating consistency of standards throughout the UK

§ Creating a positive vehicle for all sectors of the night time economy to work together in partnership

As a snapshot of success, the chart below shows the crime reduction statistics in 6 towns following the introduction of BBN schemes.

P URPLE FLAG

Backed by The Home Office, the Purple Flag scheme aims to raise the standard and broaden the appeal of town and city centres between 6pm and 6am – The Evening Economy.

It is an award scheme offered by the Association of Town Centre Management (ATCM), which recognises excellence in place management in town & city centres at night, setting standards going forward for managing successful evening economies and benchmarking performance.

The initiative aims to improve perceptions of places, address imbalances in activities, retail offer and entertainment, tackle anti-social behaviour, and encourage a diverse evening offer; providing significant recognition for councils and partnerships who deliver key services associated with the night-time economy.

The programme offers the opportunity for national recognition of excellent strategies and best practice across these areas for a variety of places. The scheme helps drive up standards and replace negative perceptions with positive visions by rewarding well-managed evening and night-time economies.

Developed by a team of industry experts since 2003, Purple Flag is a rigorous accreditation process that helps to tackle many prominent issues associated with night time economy management and is supported by the Home Office, Association of Chief Police Officers, Local Government Regulation (LACORS), NOCTIS, Diageo, and many other high profile national bodies. The scheme’s increasing popularity has led to a record number of applications for the latest round following the success of the initial rounds in 2009, which saw the likes of Manchester, Birmingham, Liverpool, Bath, Kingston, Leicester Square, and Covent Garden gain full accreditation. If a town or city centre offers a clean and safe environment, diverse activities, entertainment and retail offer, excellent transport links, and a great nightlife then the Purple Flag award applies, regardless of size or population.

BUSINESS IMPROVEMENT DISTRICT (BID)

A Business Improvement District is a partnership between a local authority and the local business community to develop projects and services that will benefit the trading environment within the boundary of a clearly defined commercial area.

Businesses have the opportunity to agree on the projects for which they are contributing and to vote in a ballot on the amount of money they are prepared to raise, enabling them to become involved in the administration of the schemes themselves.

If a majority, both by number and by rateable value, approve the proposal, all ratepayers will contribute through their business rates

BIDs give local businesses the power to effect changes that will benefit them in their local community. Improvements may include extra safety/security, cleansing and environmental measures, improved promotion of the area, improved events, and greater advocacy on key issues, but the legislation does not put a limit on what products or services are provided

Annex 2 – T he Wine and Spirit Trade Association

The WSTA has been involved in a range of work to reduce underage access to alcohol and promote a responsible drinking culture. These include:

Retail of Alcohol Standards Group

The Retail of Alcohol Standards Group (RASG) was formed at the end of 2005 when several major retailers of alcohol came together to examine ways they could cooperate to reduce the incidence of alcohol sales to minors. RASG is an example of unprecedented cooperation between hugely competitive rival companies; it has provided a focus for the entire alcohol retail trade and continues to be a source of industry best practice. The secretariat for RASG is provided by the WSTA.

Challenge 25

The Challenge 25 scheme is part of the RASG’s commitment to reduce sales of alcohol to those under 18. It encourages anyone who is over 18 but looks under 25 to carry acceptable proof of age if they wish to buy alcohol , b uilding on the highly successful Challenge 21 campaign developed by RASG in 2005. The Challenge 25 signage is freely available to download from the WSTA website and is used by police , local authorit ies and independent retailers.

Community Alcohol Partnerships

Comm unity Alcohol Partnership (CAP ) projects bring together local retailers, trading standards and police to tackle the problem of underage drinking and associated anti-social behaviour. The partners share information and training to facilitate risk-based e nforcement and to resolve local, alcohol-related problems swiftly. C APs operate under the banner of the Retail of Alcohol Standards Group , employing a dedicated project manager to manage schemes.

Campaign for Smarter Drinking

The Campaign for Smarter Drinking is a £100 million social marketing campaign aimed at encouraging responsibility among young adults and shifting attitudes towards drunkenness. The initiative was developed by over 45 of Britain ’s best known companies across the drinks trade and was launched in partnership with charity Drinkaware and is supported by Government.


[1] Police Reform & Social Responsibility Bill Impact Assessment, Home Office, Dec 2010, Pg. 13

[2] The Policing and Crime Act 2009 made members of the local licensing authority ‘interested parties ’ and therefore able to make representations on licences.

[3] For example , the Chairman of Glasgow’s licensing board recently criticised the NHS Greater Glasgow and Clyde for making ‘frivolous’ objections to a retailer seeking a licence to sell cooking products like rice wine . Source: ‘ Attempt to prevent store from selling alcohol was ‘frivolous ’ The Herald, 3 rd January 2011

[3]

[4] Hansard HC Standing Committee D, 10 April 2003, Col 222

[5] Police Reform and Social Responsibility Bill 2010, S. 105, (3)(a)

[6] This defines an interested party as 'someone who, in the opinion of the Licensing Authority which issues the licence, or to which the application is made, is a person who: a) Lives sufficiently close to the premises to be likely to be affected by the authorised activities; b) Has a business interest that might be affected by the authorised activities; c) Represents persons who satisfy a) or b).'

[7] The Home Office: Reducing the risk of violent crime, National Audit Office, Feb 2008

[8] “ Licensing Act Statutory Guidance will be amended to state that all licences will be reviewed where the licence holder is found to be persistently selling alcohol to children and making the presumption will be that the licence will be revoked at review will encourage licensing authorities to make greater use of these powers. ” Responses to consultation: Re-balancing the Licensing Act , Home Office, 2010

[9] The most common ways to for young people to get alcohol were being given it by friends (24%of all pupils), a parent (22%) or asking someone else to buy alcohol (18%) or taking alcohol from home with permission (14%). Buying or attempting to buy alcohol from a shop (6%) or pub (4%) was the least common method. Smoking, Drinking and Drug Use Among Young People 2008. http://www.ic.nhs.uk/webfiles/publications/sdd08fullreport/SDD_08_%2809%29_%28Revised_Oct_09%29.pdf

[9]

[10] Bet ween 2005 and 2009, an average of just 16 people a year have been convicted of purchasing alcohol on behalf of a person aged under 18. (House of Commons Deposited Papers, DEP2010-2137, Home Office, 29 November 2010)

[10]

[11] Impact Assessment for the alcohol measures in the Police Reform and Social Responsibility Bill, 19 th November 2011

[12] Dunfermline BID Brings Improvements in Crime Statistics as Well as Business , BIDS Scotland, 9 July 2010

[13] http://www.broadstreet.co.uk/broad-street-business-improvement-district/

[14] http://www.kingstonfirst.co.uk/about/safer-streets.htm