15.We begin this chapter by looking at the background to the Act and the development of the Government’s policy. We then outline the provisions of the Act, including its many amendments, culminating in those made by the Policing and Crime Act 2017. We then consider the difficult relationship between licensing policy and alcohol policy. Finally we look at the views of some of our witnesses on whether, overall, the Act is working satisfactorily to achieve its intended purpose.
16.Prior to the 2003 Act, the principal legislation governing the licensing of the sale of alcohol was the Licensing Act 1964. It was a consolidation Act and, like earlier statutes, it adopted a restrictive approach to the “retail sale of intoxicating liquor”. An applicant for a licence had to demonstrate to the licensing justices for the relevant petty sessional division that he was a “fit and proper person” to hold a licence. The hours during which alcohol could be served were strictly (and not very rationally) limited to 11.00 am to 11.00 pm on Mondays to Saturdays, 12 noon to 10.30 pm on Sundays and Good Friday, and on Christmas Day 12 noon to 3.00 pm and 7.00 pm to 10.30 pm. The justices had little discretion to extend these hours. The fact that there might be public demand for longer hours played no part; matters were regulated by the State, and not by market forces. The sale of alcohol for occasional entertainment still required a temporary licence.
17.Public entertainments were licensed by local authorities under the Local Government (Miscellaneous Provisions) Act 1982 and the London Government Act 1963, and the provision of late night refreshment was licensed by local authorities under the Late Night Refreshment Houses Act 1969. There were other provisions in five other statutes and a large amount of secondary legislation.
18.On 5 May 1998 George Howarth MP, the responsible Minister in the Home Office, announced a review of the liquor licensing laws. This involved all key stakeholders: the police, magistrates, local authorities, industry and interested groups. The review continued until 1999 and led to the White Paper Time for Reform: Proposals for the Modernisation of Our Licensing Laws which was published on 10 April 2000 for a three month public consultation which generated just over 1,200 responses.
19.Also in 1998, a sub-group of the Better Regulation Task Force (BRTF), chaired by the Association of Chief Police Officers, reviewed the licensing laws. Their work led to the BRTF’s report Licensing Legislation, published in 1998. It recommended that the Government should reform the alcohol and public entertainment licensing laws; deregulate licensing; allow greater flexibility; and transfer responsibility from the magistrates to local authorities.
20.In May 2001 the Home Secretary announced his intention to legislate to reform the laws with only minor adjustments to the original White Paper proposals. The Home Office was thus the department with primary responsibility for the changes in licensing policy. However on 8 June 2001, the Government transferred responsibility for licensing policy to the Department for Culture, Media and Sport. The Licensing Bill was introduced in the House of Lords in November 2002 and the Licensing Act 2003 received Royal Assent on 10 July 2003. The Act came fully into force on 24 November 2005, seven and a half years after the original announcement of the review of the law. The Home Office resumed responsibility for the Act in 2010.
21.The Act aimed for the first time to bring clarity to the purposes for which activities were to be regulated. The statutory purpose of the system introduced is to promote four fundamental objectives (“the licensing objectives”). Those objectives are:
We consider these further in Chapter 6.
22.Section 182 of the Act requires Ministers to issue Guidance to local authorities on their functions under the Act. They did so before the Act came into force, and it has been revised a number of times. From the outset the Guidance has made clear that “the promotion of the four objectives is a paramount consideration at all times”, but ministers have stressed that the legislation “also supports a number of key aims and purposes” which (in the latest version of the Guidance) include:
23.The Guidance states that these aims “are vitally important and should be principal aims for everyone involved in licensing work”. Since it has statutory force, the aims cannot be departed from without good reason.
24.Currently the Guidance is subject to affirmative resolution. This will soon cease, but the Guidance will continue to have statutory force. Many of our recommendations will require amendment of the Guidance.
25.The Act regulates:
26.Schedule 1 to the Act defines “regulated entertainment” and lists exemptions. It has been amended a number of times, most significantly by the Policing and Crime Act 2009 for sexual entertainment venues, and by the Live Music Act 2012 which we consider in Chapter 11. Sexual entertainment venues are exempt from a premises licence under the Act, but only because they are regulated under the Local Government (Miscellaneous Provisions) Act 1982. If they wish to sell alcohol, they do still need to be licensed under the Licensing Act.
27.The types of premises affected by the Act include:
28.Personal licences authorise individuals to sell or supply alcohol, or authorise the sale or supply of alcohol, for consumption on or off premises for which a relevant premises licence is in force. A personal licence is not required where the licensable activities are confined to entertainment or late night refreshment.
29.Premises licences set out the operating conditions relating to the use of the premises for licensable activities, in order to regulate the use of the premises in line with the licensing objectives. They will vary according to the risks individual premises present to the promotion of the four objectives. Under the previous licensing regime an applicant for a licence had to satisfy a demand test. One of the main changes made by the Licensing Act 2003 was that this test was removed. Under the Act an application for a licence has to be granted if no one makes a relevant representation, and grounds for refusal are limited to reasons based on the licensing objectives.
30.A premises licence has effect until the licence is revoked or surrendered, but otherwise is not time limited unless the applicant requests a licence for a limited period. Under the Licensing Act 1964 as originally enacted a licence had to be renewed every year, and although this was subsequently extended to three years, the indefinite continuation of a premises licence was another significant change made by the 2003 Act.
31.Any person may make representations about an application for the grant of a premises licence, or about a variation or review. Most commonly these will be local residents and businesses, but there is no longer a “vicinity” test, so those living further afield but with an interest may also make representations. The responsible authorities which most commonly make representations are the police and environmental health, and the local authority itself. Such representations must concern “the likely effect of the grant … on the promotion of the licensing objectives” or, in the case of a review, must be “relevant to one or more of the licensing objectives”—a lower test. Once the licence has been granted the same classes of persons and bodies may seek a review of the premises licence and the conditions attaching to it if problems occur which present a risk to the licensing objectives.
32.Club premises certificates provide authorisation for qualifying clubs to use club premises for qualifying club activities. Such clubs tend to be, for example, political clubs, sports clubs, ex-services clubs, working men’s clubs and social clubs with at least 25 members. The qualifying club activities are a subset of the licensable activities: the supply of alcohol by or on behalf of a club to a member of the club, the sale by retail of alcohol by or on behalf of a club to a guest of a member for consumption on the premises, and the provision of regulated entertainment by or on behalf of a club for its members and guests. As with premises licences, the right to make representations on the application for a club premises certificate is given to a range of persons and bodies. We discuss this in more detail in Chapter 13.
33.The 2003 Act established new arrangements for the carrying on of licensable activities at occasional or temporary events. These arrangements replace the multiple systems of “occasional permissions” and “occasional licences” which applied to the old alcohol and entertainment regimes. We consider TENs in Chapter 8.
34.The Act allows interested parties and responsible authorities to ask the licensing authority to review premises licences and certificates if problems arise in relation to a licensing objective. Licensing authorities have the power, on review of a premises licence or certificate, to suspend or revoke the licence, to exclude specific licensable activities from the licence, to modify operating conditions attaching to the licence, and to require the removal of the designated premises supervisor.
35.Part 8 of the Act (sections 160–171) conferred powers on the police to close groups of licensed premises and individual licensed premises to deal expeditiously with disorderly behaviour and excessive noise; these powers were both anticipatory and reactive. However the Anti-social Behaviour, Crime and Policing Act 2014 repealed sections 161–166 and substituted a new power consolidating various existing closure powers relating to licensed and non-licensed premises which were causing, or were likely to cause, nuisance or disorder. A closure notice that lasts for up to 48 hours may be issued by a police officer of at least the rank of superintendent, or someone designated by the chief executive officer of a local authority.
36.When a closure notice is issued, the police or local authority must apply to the magistrates’ court for a closure order. The magistrates’ court must hear the application for the closure order within 48 hours and can make a closure order for a maximum period of three months. Unlike the closure notice, a closure order can prohibit access to anyone, including the landlord, owner or habitual residents.
37.The powers on reviews and closures are among the most difficult and controversial that licensing committees have to exercise, and one of the chief sources of the criticisms of those committees. We explore reviews and closures in Chapter 9.
38.Under the previous alcohol licensing regime, the laws governing sales of alcohol to children applied only to licensed premises. The Act made it an offence to sell alcohol to children under 18 anywhere, and abolished the arrangements which had made it lawful to sell alcohol to children in almost 20,000 non-profit making members’ clubs, on river and coastal cruises, and on trains. Provisions which had allowed children over five to consume alcohol in around 25,000 restaurants and in areas in public houses away from the bar area (such as the beer garden) were also repealed.
39.It had also been lawful for children aged 16 or 17 to purchase and consume beer, porter and cider where they were consuming them with a table meal. These provisions were replaced with new provisions which allowed children aged 16 and 17 to consume (but not purchase) wine, beer and cider with a table meal where they were accompanied at the meal by an adult who had purchased the alcohol.
40.Test purchasing of alcohol sales to under 18s under the authority of police or trading standards officers was first made lawful by the Criminal Justice and Police Act 2001. These provisions were continued in the 2003 Act and have become central to campaigns since 2004 to tackle unlawful selling to children.
41.The regime is supported by a range of inspection powers and enforcement provisions. Part 7 of the Act (sections 136–159) creates a large number of offences relating in particular to unauthorised licensable activities, drunkenness, disorderly conduct, and children and alcohol. Whether these enforcement powers are adequate and are sufficiently used is a matter we look at in Chapter 13.
42.One might have expected, and would certainly have hoped, that a completely new regime, devised after extensive consultation, would have been allowed to bed down without substantial amendment. A Home Office Minister, contemplating the Act at the time of its entry into force, might not have anticipated that his own department would as early as the following year be responsible for the first of six major Acts dealing with policing and crime which, in the space of 11 years, would each make significant changes to the Licensing Act.
43.The Violent Crime Reduction Act 2006 inserted three new sections allowing summary reviews of premises licences in the case of serious crime or disorder, on the application of a senior police officer. These provisions have in turn been amended by the Policing and Crime Act 2017.
44.The Policing and Crime Act 2009 created a new category of “sexual entertainment venue” which could be regulated under Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, as “sex establishments” already were. This resulted in the removal of lap dancing clubs from the regime of the Licensing Act to that of the 1982 Act. The consequence is that premises for which a sexual entertainment venue licence is required under the Local Government (Miscellaneous Provisions) Act 1982 do not also require a premises licence, club premises certificate or TEN under the Licensing Act in order to provide relevant entertainment unless the premises also carry on other licensable activities (like the sale of alcohol or the provision of other regulated entertainment), as the great majority do.
45.The 2009 Act also added new provisions allowing the Secretary of State to specify mandatory conditions relating to the supply of alcohol if the Secretary of State considers it appropriate to do so for the promotion of the licensing objectives.
46.Next came the Police Reform and Social Responsibility Act 2011. Its main contribution was the addition of five sections on Early Morning Restriction Orders (EMROs). These repealed and replaced similar provisions which had been added the previous year by the Crime and Security Act 2010, but never brought into force. We explain in Chapter 10 why the provisions which are in force are of scarcely more value than those which were repealed without being brought into force.
47.The 2011 Act also included 15 sections introducing the Late Night Levy (LNL). These provisions do not operate by amendment of the Licensing Act, but are as much part of the law on licensing as if they were included in that Act. Again, we consider this in Chapter 10. And finally, the 2011 Act also repealed the provisions on Alcohol Disorder Zones introduced by the Violent Crime Act 2006. Those provisions were in force for just four years.
48.Fifthly, the Anti-Social Behaviour, Crime and Policing Act 2014 contained major provisions on the closure of premises associated with nuisance or disorder, including licensed premises. We look at these in Chapter 9.
49.As our inquiry progressed, so did the passage through both Houses of the Policing and Crime Bill, culminating in Royal Assent on 31 January 2017. When the relevant provisions are in force, the most important will be those dealing with the use of Cumulative Impact Policy (CIP), which we consider in Chapter 9, and yet further amendments to EMROs and to Late Night Levies (LNLs) (Chapter 10).
50.Attempts were made in both Houses, but unsuccessfully, to use this Bill as a means of amending the statutory licensing objectives. We consider this in Chapter 6.
51.The Legislative and Regulatory Reform Act 2006 allows ministers to make Orders “removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation”,—in other words, removing red tape. Three Orders have been made amending the Licensing Act which respectively simplify applications for minor variations of premises licences or club premises certificates, do the same for variations of licences for community premises, and provide that in certain circumstances the provision of regulated entertainment will no longer need to be authorised under the Act. Examples are travelling circuses, incidental film, and entertainment put on by local authorities, health care providers and schools in their own premises.
52.The Deregulation Act 2015 made a number of amendments, including those relating to TENs and those (not yet in force) dealing with Community and Ancillary Sellers’ Notices (CANs). We consider both of these in Chapter 8.
53.The Bill for the Live Music Act 2012 was introduced in this House by Lord Clement-Jones, who was briefly a member of this Committee, and piloted through the House of Commons by Don Foster MP, now Lord Foster of Bath and also a member of this Committee. It removed the licensing requirements for live music in a number of circumstances. We consider these in Chapter 11.
54.A number of the recommendations we make in this report will involve amendments to the Act, some of them significant. Nevertheless we think it unfortunate that in the 11 years since the full implementation of the Licensing Act there have been piecemeal amendments made by nine different Acts of Parliament, a large number of significant amendments made by other Acts and by secondary legislation, and further changes to licensing law and practice made by amendment of the section 182 Guidance.
55.A significant amendment made by the Policing and Crime Act 2017 will mean that from 6 April 2017 the section 182 Guidance will no longer require Parliamentary approval. This would restore the position to what it was when the Licensing Bill was introduced in the House of Lords in November 2002. We regret that there will no longer be any opportunity for Parliament to scrutinise the Guidance in draft, nor even to ensure that there has been adequate consultation during its preparation.
56.Consumption of alcohol in this country has fluctuated wildly, from the gin-soaked back streets of eighteenth-century London depicted by Hogarth, through to the temperance movements of the nineteenth century and the low consumption prompted by the legislation of the First World War, to rising consumption from the 1960s, and to today’s consumption which is anything but constant. There are changes in the numbers of outlets, in the types of outlets—in particular from on-licences to off-licences—in the consumption by different age groups and by geographical location, in alcohol-related crime and in alcohol-related hospital admissions.
57.The figures for numbers of licences can be given with some accuracy since nearly all local authorities respond to Home Office requests for figures, and for the few that do not, the figures can be imputed. The statistics given in the Home Office’s Memorandum go up to 2014. No figures were collected for 2015, and the figures for 2016 were published after the Memorandum. The following chart illustrates that there was only a small increase in premises licences between 2007 and 2014, and an equally small decrease in the number of club premises certificates. The apparent doubling in the number of personal licences is mainly, if not entirely, due to the fact that individuals who are authorised to supply alcohol are no longer required to surrender their personal licences when they leave the alcohol industry.
58.As at 31 March 2016 the position in England and Wales was as shown in Box 1:
There were 210,000 premises licences, an increase of 3% (5,500) compared with March 2014, in line with the broadly increasing trend seen since March 2010 when there were 202,000 premises licences. Of these, 18% were licensed only for on-sales of alcohol, 27% only for off-sales, and 38% for both on-and off-sales. 16% are not licensed to sell alcohol at all (and so were licensed only for late night refreshment).
There were 86,500 premises licences with night refreshment. Fewer than 20,000 of these were licensed only for late night refreshment (and so not also for the sale of alcohol). Whilst there was no consistent trend between 2010 and 2016, the total figure represented a decrease of 0.1% (100) compared with March 2014 and an increase of 2% (1,600) compared with March 2010. The number of premises licences with late night refreshment made up 41% of the total number of premises licences.
There were 8,300 premises with 24-hour alcohol licences. Since March 2010 there had been an increase of 6% (500); however, the number of premises with 24-hour alcohol licences had remained steady since March 2012, ranging between 8,200 and 8,400. Of these, 43% were for hotel bars, 15% for large supermarkets, 17% for other convenience stores, and 11% for pubs, bars and night clubs.
There were 14,700 club premises certificates, a decrease of 5% (700) compared with March 2014 and continued the decline seen since March 2010 when there were 17,000 certificates.
There were 646,500 personal licences, an 11% increase (63,000) compared with March 2014. This continued the increasing trend seen since March 2010 when the figure was 434,200 licences, and is probably accounted for by the fact that personal licences no longer have to be surrendered.
59.During the passage of the Licensing Bill one of the much over-used expressions was that it was going to change the UK to a “café culture”, by which was meant the imagined Continental habit of modest and leisurely consumption of alcohol at any civilised hour, preferably in clement weather. The fact that this has not materialised seems to have come as no surprise to any of our witnesses, nor to us; it takes more than an Act of Parliament to change the habits of generations, and this country’s climate was never going to favour such a change. The café culture which has grown up takes a rather different form and is confined to town centres, where between 2011 and 2016 a fall of 2,000 in the number of bars, pubs and night clubs has been accompanied by an increase of 6,000 in the number of cafés, fast food outlets and restaurants. This is not the café culture that was envisaged in 2003.
60.Changes in the proportion of alcohol sold in on- and off-trade premises are particularly significant. In 2000 the volume of beer sold at off-licences was less than half that sold at on-licences. The proportion steadily increased until in 2014 the volume of beer bought at off-licences, the equivalent of 13.78 million barrels, for the first time exceeded the 13.66 million barrels sold in pubs, clubs and restaurants. An increasing proportion of off-trade sales now take place online, but witnesses were unable to provide us with separate figures for this emerging market. In Chapter 7 we look in more detail at these changes, and consider whether the licensing system has sufficiently changed to take account of them.
61.As the Home Office explain in paragraphs 194–200 of their Memorandum, there is a wide range of indicators which describe trends, and the data are collected in different ways and cover different populations. The Home Office referred us to the HMRC data on the volume of alcohol cleared after duty for consumption in the UK. As Figure 2 shows, over the 20 years from 1992/93 to 2012/13 the annual consumption in litres of pure alcohol per adult rose to a peak of 11.73 litres in 2004/05, declining since then to 9.65 litres in 2012/13.
HMRC did not collect data on this basis after that date. There may additionally be alcohol consumed on which duty has not been paid, but there is no reason to suppose that this would affect the trend.
62.For estimates since 2012/13, the Home Office have referred us to surveys by Health Survey for England which show that mean units of alcohol consumed by men per week fell from 17.0 in 2012 to 14.9 in 2015. For women the figures were 10.2 in 2012 and 8.9 in 2015. We do not dispute that, as Alcohol Concern say, “Survey measures of drinking behaviour are generally acknowledged to underestimate consumption.” However the trend is clear, and we accept the Home Office view that the figures demonstrate a continuing trend of “falling alcohol consumption … over the past decade.”
63.It is tempting to look for a causal connection in the fact that consumption peaked at around the time the Licensing Act came into force in November 2005, but there is no evidence for this. The Home Office say in their Memorandum: “It is not possible to say with any certainty whether any of the changes in alcohol-related trends took place due to the implementation of the LA2003.”
64.No Committee which has heard evidence about the effects of excessive alcohol consumption, as we have over many months, can fail to be concerned. Some of the evidence we have received refers to changes in alcohol-related hospital admissions and alcohol-related deaths. This immediately raises the question of what is meant by ‘alcohol-related’. A narrower measure is obtained where an alcohol-related disease, injury or condition was the primary diagnosis or there was an alcohol-related external cause. On this measure there were 333,000 estimated admissions in England in 2014–15, similar to 2013–14 but 32% higher than 2004–05. A broader measure is obtained where an alcohol-related disease, injury or condition was the primary reason for admission or a secondary diagnosis. On this measure, in 2014–15 there were 1.1 million estimated admissions, 3% more than 2013–14 and nearly double the level in 2004–05.
65.The same problems of definition arise when looking at numbers of alcohol-related deaths. The ONS definition includes only causes regarded as most closely related to alcohol consumption, on which basis in 2014 there were 6,831 alcohol-related deaths in England. This is 1% of all deaths, an increase of 4% since 2013, and 13% higher than in 2004.
66.As always, the absolute number of deaths has to be distinguished from death rates. Figure 3, which relates to the whole UK, shows how the alcohol-related death rate in 2014, at 14.3 per 100,000, was down from a peak of 15.8 in 2008, and in fact lower than in 2004, but still some 50% higher than the figure of 9.1 per 100,000 in 1994, when these records began.
67.It has to be remembered that some alcohol-related admissions, and even more so alcohol-related deaths, may be the result of consumption levels many years previously, and cannot be used directly as evidence of current consumption levels, or current changes in consumption levels. Nevertheless, these figures are startling. Consistent with our remit, we have considered whether there are any changes which could be made to licensing law which might improve the situation.
68.It is in our view unarguable that an increase in the price of alcohol will decrease consumption. The Government’s 2012 Alcohol Strategy stated: “There is strong and consistent evidence that an increase in the price of alcohol reduces the demand for alcohol which in turn can lead to a reduction in harm, including for those who regularly drink heavily and young drinkers under 18.”
69.Sarah Newton MP, the Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism at the Home Office, told us: “Since I was elected I have supported measures to tax the strongest and most harmful types of alcohol more highly … we have brought in other measures such as that alcohol cannot be sold for less than the cost of production plus VAT. They are all measures the Government have taken on duties and tax to recognise the harmful effects of certain alcohols taken to excess.”
70.There can be, and is, a great deal of debate about the degree to which a particular increase in cost will be effective in reducing consumption, about how the increase should be targeted to have maximum effect, and about whether it will have any undesirable consequences.
71.The use of taxation or pricing policy to influence alcohol consumption is largely outside our remit. We did however include in our call for evidence the following question: “Should alcohol pricing and taxation be used as a form of control, and if so, how? Should the Government introduce minimum unit pricing in England? Does the evidence that MUP would be effective need to be “conclusive” before MUP could be introduced, or can the effect of MUP be gauged only after its introduction?”
72.We included this question because Scotland, the only country in the world (so far as we are aware) which has MUP on its statute book, has introduced it by an amendment to the Licensing (Scotland) Act 2005. We note the view of Alcohol Research UK that: “… it is not clear that a discussion of minimum pricing falls within a consideration of the 2003 Licensing Act. Although the Minimum Pricing (Scotland) Act [sic] proposes introducing MUP through a mandatory licensing condition, pricing policy is distinct from licensing policy.” The British Beer and Pub Association (BBPA) made the same point: “We do not see the relevance regarding pricing and taxation in an evaluation of licensing law. Taxation and pricing are very separate mechanisms to the licensing regime, and should not in our view be conflated.” However we believe that the fact that MUP can be, and has been, introduced as a mandatory licensing condition, means that on balance it falls within our terms of reference.
73.The amendment made to the Licensing (Scotland) Act 2005 would allow the Scottish Government to prohibit the sale of alcohol at less than a specified price per unit; the price they are considering is 50 pence per unit. This provision is however not yet in force. Within a month of the enactment of the Alcohol (Minimum Pricing) (Scotland) Act 2012 the Scotch Whisky Association petitioned for judicial review of the Act on the ground that it was contrary to the prohibition by Article 34 of the Treaty on the Functioning of the European Union (TFEU) on quantitative restrictions on imports and measures having equivalent effect, and not saved by the derogation in Article 36 which provides that these prohibitions do not preclude prohibitions or restrictions justified on grounds of the protection of public health. The case was referred by the Inner House of the Court of Session to the Court of Justice of the European Union (CJEU), which ruled in December 2015 that the policy could be justified on health grounds under EU law only if it was more proportionate and effective than using general taxation. The CJEU ruled that “the effect of the Scottish legislation is significantly to restrict the market, and this might be avoided by the introduction of a tax measure designed to increase the price of alcohol instead of a measure imposing a minimum price per unit of alcohol.” It was for the national court to decide whether an alternative approach, such as a tax increase, might achieve the same result but be less restrictive.
74.The case was referred back to the Inner House of the Court of Session which ruled on 21 October 2016 that the Scottish Government was within its rights in deciding that MUP would be more effective than taxation in protecting public health. However on 21 December 2016 the Inner House granted the Scotch Whisky Association permission to appeal to the Supreme Court, and this provision has still not been brought into force.
75.We received views which were predictably divided. Dr Jeanelle de Gruchy, the Director of Public Health at Haringey Council, speaking on behalf of the Association of Directors of Public Health, said: “Among the vast array of public health issues and policy responses we deal with, directors of public health felt MUP came out as No. 1 in having sufficient evidence of impact and import.” Professor Sir Ian Gilmore, the Chair of the Alcohol Health Alliance, told us: “Targeting those we really want to help is the key benefit of MUP. The Scottish courts have crawled over that with enormous alacrity and come to the conclusion, with new evidence coming to light since it was first put before them, that the case is now overwhelming. It will be a real benefit to public health.”
76.Rosanna O’Connor, the Director for Alcohol, Drugs and Tobacco of Public Health England (PHE), told us that PHE would be publishing later in the year a report which would include an assessment of the impact of policy interventions on alcohol-related harms. That report, published in December 2106, concludes:
“Implementing a MUP is a highly targeted measure which ensures any resulting price increases are passed on to the consumer improving the health of the heaviest drinkers who experience the greatest amount of harm. MUP would have a negligible impact on moderate drinkers and the price of alcohol sold in pubs, bars and restaurants.”
77.While these witnesses felt that MUP was “targeting those we really want to help”, the industry respondents were opposed to the introduction of MUP precisely because they felt it was not in fact properly targeted. The Scotch Whisky Association said:
“We do not believe the Government should introduce minimum unit pricing in England. The previous Government stated it would not proceed with MUP noting that it “has not provided evidence that conclusively demonstrates that MUP will actually do what it is meant to: reduce problem drinking without penalising all those who drink responsibly”. There is no justification for requiring responsible drinkers to pay more, and those in poverty are hardest hit … Evidence from Scotland shows the majority of hazardous and harmful drinkers are in the top three income quintiles”.
78.The Wine and Spirit Trade Association (WSTA) told us in written evidence that “the Government’s Economic Impact Assessment highlighted that an MUP of 45p would cost the Treasury £200m in lost revenue and also cost consumers an additional £1bn and, at a time of significant uncertainty for business and the Government, this could have a significant impact.” In oral evidence Miles Beale, their Chief Executive, said: “We think that it would be very unfair on the poorest, in particular. We certainly do not see that it would work, given that there is no evidence that it would.” Brigid Simmonds, the Chief Executive of the British Beer and Pub Association, said: “It is a total tax on everybody and if you are not careful it takes money from those who can least afford it when actually they are drinking perfectly sensibly.”
79.A non-industry view to the same effect was given by Chris Snowdon from the Institute of Economic Affairs:
“It is a mistake to think that the very cheapest alcohol will suddenly sell for more; the cheapest alcohol will disappear and it will be the second or third cheapest that will become the cheapest. So effectively, you are forcing people to drink slightly better-quality alcohol for more money. People who would rather buy cheap alcohol and keep the difference would be forced to spend more money for alcohol which is better, and might be more widely advertised, but they would be happier drinking something cheaper because they are very price sensitive. That is a result of the fact that the people most affected by this are people on low incomes.”
80.These witnesses regard MUP as a regressive form of price control, hitting those on lower incomes and sensible drinkers hardest while diverting the money raised into the hands of industry.
81.In relation to England and Wales, in the 2012 Alcohol Strategy the Government said unequivocally: “We will introduce a minimum unit price (MUP) for alcohol meaning that, for the first time ever in England and Wales, alcohol will not be allowed to be sold below a certain defined price.” This was specifically endorsed by David Cameron as Prime Minister in his Foreword: “So we are going to introduce a new minimum unit price.” That is not what happened. In July 2013 the Government published its Next Steps paper and the then Home Secretary wrote: “[The consultation] has not provided evidence that conclusively demonstrates that Minimum Unit Pricing (MUP) will actually do what it is meant to: reduce problem drinking without penalising all those who drink responsibly. In the absence of that empirical evidence, we have decided that it would be a mistake to implement MUP at this stage. We are not rejecting MUP—merely delaying it until we have conclusive evidence that it will be effective.”
82.In oral evidence, Sarah Newton MP would go no further than to say:
“We do not want to go ahead with a policy that we would not be able to implement because of rulings in the courts. We are waiting to see what happens. I expect it will go to the Supreme Court, which will make a ruling as to whether the Scottish Government were right and were able to introduce MUP. We will wait to see what results from that. We keep the whole alcohol pricing area under review.”
83.The minimum pricing provisions introduced by the Alcohol (Minimum Pricing) (Scotland) Act 2012 expire after 6 years, unless previously renewed. The first assessment as to whether MUP is effective will not come until the Scottish provision has been in force for five years. Such an assessment cannot therefore come before 2023 at the earliest. Evidence after such a short time, if it is significant at all, is more likely to be persuasive than conclusive; and however persuasive it may be, it will not be accepted as such by the industry. As the Court of Session said, “The only way in which minimum pricing can be tested is by trialing it; which is what the [Scottish] Government seek to do.”
84.The argument that a policy should not be introduced because there was no conclusive evidence that it would be effective was once deployed to oppose compulsory seat belts and restrictions on smoking. It does not make sense for a decision for England and Wales to be postponed indefinitely. UK Ministers must be guided by the Scottish experience.
85.We recognise that MUP cannot be brought into force in Scotland, or any part of the UK, until the Supreme Court has ruled on the appeal by the Scotch Whisky Association. If that appeal succeeds, it will not be possible to introduce MUP at all, either in Scotland or in England and Wales, unless and until the relevant Treaty provisions cease to apply on the UK leaving the European Union. If and when MUP is introduced in England and Wales, we believe that the change will be best made as a stand-alone legislative provision rather than (as in Scotland) as a mandatory licensing condition.
86.Assuming that minimum unit pricing is brought into force in Scotland, we recommend that once Scottish ministers have published their statutory assessment of the working of MUP, if that assessment demonstrates that the policy is successful, MUP should be introduced in England and Wales.
88.The original purpose of licensing the sale of alcohol, and still one of its main purposes, was to attempt to control the crime and disorder which seem inevitably to accompany the uncontrolled sale of alcohol. While the Vagabonds and Beggars Act 1494, from which we have already quoted, allowed justices to prevent the sale of alcohol, the Ale Houses Act 1551 provided that no one was permitted to keep an ale house unless allowed to by Justices sitting in Sessions, who were empowered to take sureties–the equivalent of today’s licence fee. The reason given for this provision was that “intolerable hurte and trobles to the Common Wealthe of this Realme dothe daylie growe and increase through suche abuses and disorders as are had and used in comen Alehouses”.
89.The Licensing Act has to perform a delicate exercise, balancing the enjoyment of the great majority of moderate responsible drinkers with the rights of local residents and the expectations of the wider public. The holders of personal licences and the managers of licensed premises (who will often be the same person) have every interest in ensuring that their business is conducted in accordance with the law; their livelihood depends on it. Their livelihood also depends on maximising sales to their clients, but not at the expense of allowing behaviour which will become criminal conduct or will spill into the streets as public nuisance, to the annoyance of local residents and the possible imperilment of their licence. Many pubs and other retailers have signed up to the voluntary Public Health Responsibility Deal, though there are doubts about its effectiveness which we cover in more detail in Chapter 7.
90.At national level, licensing still has a part to play in the reduction of alcohol-fuelled crime, in the protection of children and in its influence on public health, but at local level its importance lies in balancing the enjoyment of alcohol for social purposes with the protection of the community from the crime, disorder and public nuisance caused by excessive drinking. The main distinction is that now the purchase and consumption of alcohol is no longer exclusively in “comen Alehouses”, but increasingly off the premises.
91.The Government stated in its Memorandum that the Act “is being used effectively in conjunction with other interventions as part of a coherent national and local strategy.” In oral evidence Anna Paige, the Head of Drugs and Alcohol Unit/Drugs and Firearms Licensing Unit at the Home Office, explained what was meant by this: “We see local authorities, licensing authorities, directors of public health … police and crime commissioners and environmental health working effectively at a local level to make decisions about licensing … The point that we were aiming to make with the memorandum is that the fundamental aspects of the Licensing Act are about local decision-making, and they allow local authorities to make decisions in the context of their local strategy for a community, for business development, for diversification of the night-time economy, in a way that imposing a strict national framework would not necessarily support.”
92.In our call for evidence we quoted the Government’s statement that the Act “is being used effectively in conjunction with other interventions as part of a coherent national and local strategy,” and asked witnesses if they agreed. Some did agree, though mostly without giving reasons. A number welcomed the interaction between the Act and the Modern Crime Prevention Strategy. Balance North East, with whom a number of other witnesses from the North East agreed, said: “At a local level the Act can be used in an effective strategic way, using Statements of Licensing Policy (SLP) to set out a clear and positive view as to what the public good in relation to licensing requires in an area. Some are also well coordinated with other local strategies, such as the planning strategy, the corporate strategy, or the health and wellbeing strategy.”
93.By no means all agreed with the Government’s assessment. Equity complained that for some time their members had reported a “wide variation in the current application of regulation by different authorities, which leads to higher costs and a great deal of uncertainty for event and entertainment organisers and performers. One example is the rise in the number of local authorities introducing street entertainment policies which are punitive to buskers and other entertainers.”
94.Almost all our witnesses who considered the issue agreed that one area where there is not a coherent local strategy is in the interaction between licensing and planning. We consider this in Chapter 5.
95.With many of our witnesses, we began by asking what their overall impression was of the Act and the way it had worked over the first 11 years of its life. Most witnesses from a variety of backgrounds thought the Act was working well, though all had suggestions to make for its improvement, many of which we consider in the following chapters. Some witnesses, residents in particular, were less enthusiastic. We give in Box 2 some of the views of the Act.
“Generally, the Act has been a success. Residents have more say, and it is a simpler system.”
“As licensing practitioners, we are here to make it work. We have clients to represent. It has had its challenges, certainly in the early days, but my overall impression is that the system works.”
“Generally, I think it has worked well. As a solicitor, I focus quite a lot on the procedure behind the applications. The Act has allowed a lot more engagement and has made it easier for both the trade and local residents to engage in the process.”
“The Licensing Act 2003 has failed where the previous legislation succeeded—in stemming the proliferation of licensed premises. The demand test has been removed. The demand test was a very good filter that made sure that there was not an excess of supply over demand. The current regime requires a grant, if no one has objected, and even where there are objections limits the reasons for refusal to something arising under the licensing objectives. Overall, I think that has been bad.”
“We see the Licensing Act as having dealt a raw deal to residents when it comes to making decisions on where and what premises should be licensed. There is a general impression from our members that there is a presumption of approval by licensing committees in granting the applications as they stand.”
“We are broadly supportive of the intent of the Licensing Act … but there are areas where I think the Act can be strengthened to support communities. The three broad areas I would focus on are consistency, training or development of those involved in this through their knowledge and approach, and partnership working.”
“We [Sainsbury’s] regard the Act as broadly effective. If we think back to the regime that existed before, there was certainly a greater degree of inconsistency among licensing justices. Although there is still inconsistency in application, we none the less think the Act has been effective.
“From the Act’s introduction, its stated aims—one of the main ones is to protect children from harm—have been relatively successful. We have seen every statistic on children accessing alcohol go down significantly.”
“Generally it has worked very well … .. The only problem that the union has with different authorities is inconsistency. Different authorities interpret the law in different ways.”
“We have adapted to it now. It works very well for the London clubs.”
“In general, it seems to work very well. It is certainly an improvement on the old system.”
96.One theme running through much of the evidence was criticism of the inconsistency of the approaches by local authorities, by licensing committees and, on appeal, by magistrates’ courts. This was eloquently put by Kate Nicholls, the Chief Executive of the Association of Licensed Multiple Retailers:
“If I try to sum up our members’ experience of the Licensing Act over the past decade in one word, that would be variability. Where it works well, it works really well, but there is no consistent good practice across the country. There is variation in the way in which policy is envisaged at a national level and how it is applied at a local level. There is variation between local authorities in their understanding and interpretation of the national legislation and there is variability between enforcement authorities in a specific local licensing area. Licensing reform is always envisaged as being driven by localism, quite rightly. What we have now over the course of a decade where we have had about 60 changes to the Licensing Act is a very individualised interpretation and application of the law. That is down to the lack of a robust clear national framework. That leads to very inconsistent decision-making. It is not good for business. It is not good for local residents … and crucially it means that that very careful balancing act of competing interests that the Licensing Act 2003 was based on has been lost.”
In a system which relies on local decision-making about local issues, some degree of variability is inevitable, but plainly the current degree of inconsistency is unacceptable. We consider in the following two chapters how matters might be improved.
19 That is, the area over which they had jurisdiction; since 2005 the “local justice area”.
20 , , , , and .
21 Home Office, Time for Reform: Proposals for the Modernisation of our Licensing Laws, Cm 4696, April 2000
22 Home Office, Revised Guidance issued under section 182 of the Licensing Act 2003 (March 2015): . [accessed 10 March 2017] The latest version was issued in March 2015. This is the version we refer to in this Report.
23 Paragraph 1.4
24 Paragraph 1.5
26 See paragraph 55.
27 See further paragraph 44.
28 By the 1988
29 Licensing Act 2003,
30 Licensing Act 2003,
31 The Police Reform and Social Responsibility Act 2011 had already substituted provisions, but these were never brought into force, so that the first changes were those made by the 2014 Act.
32 Licensing Act 2003,
33 See paragraphs 422–431.
34 Policing and Crime Act 2009,
35 See the Licensing Act 2003, inserted by the Policing and Crime Act 2009,
36 See the Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2014 (, made under section 19A of the Licensing Act 2003 which was inserted by the Policing and Crime Act 2009, and allowed amendment of the five mandatory conditions applicable to every off-licence (and, in the case of age verification, to on-licences as well). )
37 Licensing Act 2003,
38 Police Reform and Social Responsibility Act 2011,
39 Legislative and Regulatory Reform Act 2006,
44 ‘Coffee shops on the march as pubs decline, town centre data shows’, BBC News (17 January 2017): [accessed 10 March 2017]
45 ‘Off-trade beer sales volumes exceed on-trade sales for first time on record’, The Grocer (30 January 2015): [accessed 10 March 2017]
46 Home Office, Memorandum to the House of Lords Select Committee: Post-legislative Scrutiny of the Licensing Act 2003, Cm 9278, June 2016: [accessed 10 March 2017]
47 Health and Social Care Information Centre, Health Survey for England 2012, Vol 1 (2013) chapter 6, p 28: [accessed 10 March 2017]
48 NHS Digital, ‘Health Survey for England 2015: Adult alcohol Excel Tables’ (14 December 2016), Table 2: [accessed 10 March 2017]
49 Alcohol Concern, ‘Alcohol statistics’ (August 2016): [accessed 10 March 2017]
50 Home Office, Memorandum to the House of Lords Select Committee: Post-legislative Scrutiny of the Licensing Act 2003, Cm 9278, June 2016, paragraph 196: [accessed 10 March 2017]
51 Home Office, Memorandum to the House of Lords Select Committee: Post-legislative Scrutiny of the Licensing Act 2003, Cm 9278, June 2016, paragraph 194: [accessed 10 March 2017]
52 Health & Social Care Information Centre (HSCIC), Statistics on Alcohol, England, 2016 (30 June 2016): [accessed 10 March 2017]
53 Health & Social Care Information Centre (HSCIC), Statistics on Alcohol, England, 2016 (30 June 2016): [accessed 10 March 2017]
54 Home Office, The Government’s Alcohol Strategy, Cm 8336, March 2012, paragraph 2.4, p 6: [accessed 10 March 2017]
56 (Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism, Home Office)
57 Russia, Moldova, Ukraine and Uzbekistan have introduced some form of minimum pricing, and so have some Canadian provinces. However minimum pricing relates to the volume of the drink rather than its alcoholic strength.
60 In relation to England and Wales, it was the Government’s intention to follow the Scottish example and introduce MUP via primary legislation as a new licensing condition of the Licensing Act 2003: see its Impact Assessment, 1 November 2012, p 23: [accessed 10 March 2017]
61 Scotch Whisky Association and others v Lord Advocate and Advocate General, Court of Justice of the European Union, Second Chamber, case C-333/14, judgment of 23 December 2015: [accessed 10 March 2017]
62 Scotch Whisky Association and others v Lord Advocate and Advocate General, First Division, Inner House, Court of Session,  CSIH 77: [accessed 22 March 2017]
63 ‘Court of Session allows Scotch Whisky Association appeal to Supreme Court’, Scottish Legal News (22 December 2016): [accessed 14 March 2017]. The appeal is listed to be heard on 24–25 July 2017.
64 (Dr Jeanelle de Gruchy, Vice-President, Association of Directors of Public Health)
66 (Rosanna O’Connor, Director, Alcohol, Drugs & Tobacco, Public Health England)
67 Public Health England, The Public Health Burden of Alcohol and the Effectiveness and Cost-Effectiveness of Alcohol Control Policies: an evidence review (December 2016) pp. 88–95 and 202–203: [accessed 10 March 2017]
68 Scottish Government, The Scottish Health Survey, 2014 Edition (September 2015): [accessed 10 March 2017]
69 Home Office, Impact Assessment: A Minimum Unit Price for Alcohol (1 November 2012): [accessed 10 March 2017]
70 Mr Beale gave evidence to the same effect to the Home Affairs Sub-Committee of the House’s European Union Committee for its inquiry into the EU Alcohol Strategy: [accessed 22 March 2017]
71 (Miles Beale, Chief Executive, Wine Spirit and Trade Association)
72 (Brigid Simmonds, Chief Executive, British Beer and Pub Association)
73 (Chris Snowdon, Institute of Economic Affairs)
74 Home Office, The Government’s Alcohol Strategy, Cm 8336, March 2012, paragraph 2.8 and Foreword: [accessed 10 March 2017]
75 Home Office, Next Steps following the consultation on delivering the Government’s Alcohol Strategy (July 2013) Introduction by Rt Hon Theresa May MP, paragraph 5, and paragraphs 1.3–1.5: [accessed 10 March 2017]
76 Ms Newton gave evidence on 13 December 2016. On 21 December 2016 the Inner House granted the Scotch Whisky Association permission to appeal to the Supreme Court.
77 (Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism, Home Office)
78 Alcohol (Minimum Pricing) (Scotland) Act 2012,
79 Alcohol (Minimum Pricing) (Scotland) Act 2012,
80 This of course assumes that the Supreme Court will hold that the introduction of MUP would be legal.
81 Scotch Whisky Association and others v Lord Advocate and Advocate General, First Division, Inner House, Court of Session, Judgment of 21 October 2016, paragraph 202:  CSIH 77: [accessed 22 March 2017]
82 Paragraph 1
83 Department of Health, ‘Alcohol Network’: [accessed 10 March 2017]
84 Paragraph 123
85 (Anna Paige, Head of Drugs and Alcohol Unit/Drugs and Firearms Licensing Unit, Home Office)
90 (Andrew Grimsey, Solicitor, Poppleston Allen)
91 (John Gaunt, Partner, John Gaunt and Partners)
92 (Andrew Cochrane, Senior Partner and Head of Licensing, Flint Bishop Solicitors)
93 (Gerald Gouriet QC)
94 (Dr Alan Shrank, Chairman, National Organisation of Residents’ Associations)
95 (Chief Superintendent Gavin Thomas, Police Superintendents Association of England and Wales)
96 (Nick Grant, Head of Legal Services, Sainsbury’s Supermarkets Ltd)
97 (James Brodhurst-Brown, Manager, Regulatory Affairs and Trading Law, Waitrose)
98 (George Dawson, Union President, Working Men’s Club and Institute Union)
99 (Paul Varney, Association of London Clubs)
100 (Peter Adkins, Director of Regulatory Services, Emms Gilmore Liberson Solicitors)
101 (Kate Nicholls, Chief Executive, Association of Licensed Multiple Retailers)