House of Lords
Tuesday, 13 October 2009.
Prayers—read by the Lord Bishop of Liverpool.
Introduction: Lord Martin of Springburn
The right honourable Michael John Martin, having been created Baron Martin of Springburn, of Port Dundas in the City of Glasgow, was introduced and took the oath, supported by Lord Falconer of Thoroton and Lord Foulkes of Cumnock.
To ask Her Majesty’s Government whether, in announcing eight hyper-acute stroke units for London, they will give further consideration to the policy that all suspected stroke cases will be sent in the first instance to those units for three days and then transferred to their local stroke centre.
My Lords, after consultation with patients, clinicians and healthcare workers, on 20 July a joint committee of London’s primary care trusts endorsed plans to establish eight hyper-acute stroke units in the capital. These will admit stroke patients who, once stabilised, will be treated at one of the 24 supporting units throughout the capital. As this plan has just been established, it is not anticipated that this will be reconsidered.
My Lords, I thank the Minister. I declare an interest in that my husband and I have both been patients of the Chelsea and Westminster, which is not one of the eight but is one of the 24. Is she aware that there is only a three-hour opportunity during which thrombolysis or clot-busting can work? Most of the other stroke units, which are not hyper-acute classified, ask what the point is of taking someone who is beyond that stage to the hyper-acute unit when they could more conveniently and less expensively be treated at their local stroke unit.
Of the 11,500 people who suffer from stroke in the capital each year, only 1,000 of those, it is estimated, would need thrombolysis. However, many of the others would need rapid action to diagnose and treat their stroke. But the noble Baroness raises an important point about those people who present having had a stroke perhaps a day or several days before. At that point, when a patient visits their doctor or a local stroke unit with those symptoms, an assessment would be made whether it was appropriate to send them to one of the hyper-acute units or to keep them and treat them in their local hospital.
My Lords, does the Minister agree that the necessary services for strokes and their acute treatment have been delayed for an excessively long time? The establishment of these eight hyper-acute units is therefore very welcome. However, what action are the Government taking to advise the emergency services, and members of the public at large, to recognise that stroke is an emergency? The three-hour window of opportunity in which it is necessary for individuals to have a scan, before those who have had a stroke due to a reduction in blood supply rather than a haemorrhage can be treated with these clot-busting drugs, is crucial. It is a matter of fundamental importance: stroke is an emergency.
The noble Lord is absolutely right. In a Question in February, I demonstrated the FAST message to your Lordships’ House, which is the way in which all of us can diagnose stroke with the face, arms and speech test. This has been promoted by the Stroke Association with the support of the department. The emergency services are part of the strategy in London and are being geared up to take patients with threatened stroke to the new acute centres.
My Lords, is my noble friend aware of the rather depressing news this morning that only a small proportion of the budget allocated for carers’ breaks is in fact reaching them? In view of this, will she take account of the extra cost for families of visiting other than in their local area when someone has had a stroke?
The stroke networks for London are designed to ensure that those living within this region should be able to reach a hyper-acute unit within 30 minutes. The strategic authorities outside London, I am pleased to say, are developing their own units. In the east of England region, for example, there are new 24/7—that is a terrible term; rather, 24-hour services offering thrombolysis services for stroke patients. The same is happening in the south central region, where there are 14 acute combined stroke units. Each area is developing its own strategy.
Part of the strategy, both nationally and regionally in London, is about recruiting and training therapists. Resources are being made available for that. It is specialist nurses and therapists whom we need to recruit and train to ensure that the 24 stroke centres are properly equipped. I am not going to pretend that all the centres are as we would wish them to be right now.
That is a very important question, as the whole strategy would fall down if that were not the case. We are confident that the service can reach all the centres within 30 minutes. The London Ambulance Service already has an impressive track record in getting heart-attack patients to the centres of excellence that exist to treat them. We are therefore confident that it has the experience to be able to diagnose and get people to the centres on time.
Is the policy proposed by my noble friend really necessary? I speak as one of those suspected stroke cases. The provision that was given to me by the doctor was, “Well, you’re over 90. You’d better have a check”. So I was sent around, had a check and they said, “Yes, for heaven’s sake, look at what you drink and what you eat”—I shall not describe it. You just change it, and I am no longer a suspected case.
The Minister is more aware than I am of the necessity of follow-up treatment. Is she able to reassure this House that the follow-up treatment in the local stroke units will be as good as or better than that provided by the Oxford Centre for Enablement, which is primus inter pares as far as I am aware?
Disabled People: Benefits
My Lords, the Green Paper, Shaping the Future of Care Together, proposed that one way to deal with the challenge of an ageing society may be to bring some disability benefits and the new care and support system together into a single system as a better way of providing support. At this stage, we do not want to rule out any options and so are considering all disability benefits.
I thank my noble friend for that reply. Is he aware that any attempt by the Government to withdraw these benefits, or any benefits at all, will be very strongly resisted by disabled people, by their organisations and by many Members of both Houses of Parliament?
My Lords, I reiterate that no decision has been made on this matter—it is a consultation—and I acknowledge the benefit that many disabled people see in the current benefit structure, particularly DLA and attendance allowance. However, there is a case for bringing some disability benefits and the adult social care system together to provide better support through a new national care service. We should remember that the social care system and disability benefit system have in many ways developed in isolation from each other—they are separately assessed and have separate applications—and there may be benefits for individuals in bringing them together. However, we have made clear in the Green Paper that should we make a change in this direction, individuals receiving the relevant benefits at the time of the reform will continue to receive an equivalent level of support and protection.
Perhaps I may illustrate the nature of the challenge that we face. There are currently 1.26 million adults who get their care and support needs addressed. Over the next 20 years, 1.7 million more adults will need to be supported. Currently, 20 per cent of cases cost less than £1,000 a year and 20 per cent cost more than £50,000 a year.
My Lords, does my noble friend consider it acceptable that if attendance allowance were absorbed into the social care fund in future, many thousands of disabled people who get the benefit now, such as visually impaired people who fall outside the fair-access-to-care criteria, would no longer get any help with the extra costs of disability?
My Lords, these are exactly the points that need to be fed into the consultation so that they can be taken fully into account. Currently, there is a considerable degree of overlap between the social care support system and attendance allowance, in particular, and many claimants of attendance allowance effectively have a significant loss of their benefit in the assessment for social care.
My Lords, I declare an interest in that I receive a disability benefit. Is the Minister aware of the very real fear that has been engendered among disabled people at the possibility of attendance allowance, and possibly the care element of disability living allowance, being swept into the kitty to plug the gap in the funding of adult social care? Many disabled people think that that is about to happen and say that they just do not trust local authority funding, which of course is where it would end up. Will the Government make an unequivocal statement to the effect that this is very much open for consultation and is not going to happen tomorrow, as a lot of people think it is?
Indeed. I can absolutely reassure the noble Baroness and the whole House on that issue. This is a Green Paper. It is a consultation and we need fully to take account of people’s views. There is no prospect of people simply having their disability benefits removed overnight. That is no way in contemplation.
It is very much to the contrary. It is a clear thrust of the Green Paper that when we establish the national care service, some of its key components will be prevention services and information and advice, and personalised choice and control will be at the centre of those proposals. In a sense, this is being reinforced by the Welfare Reform Bill at the moment.
My Lords, notwithstanding what the Minister has said about all disability benefits being up for consideration, and given the reported statement by the Minister for Care Services that disability living allowance is not under threat, can the Minister confirm that neither component of the disability living allowance, whether paid to present or future recipients over as well as under 65, is being considered as a possible source of funding for social care?
My Lords, as I said in answer to the first Question, currently no particular benefit is ruled out of consideration. We are conscious of the fact that DLA is overwhelmingly used by people who are under 65, and obviously care needs are overwhelmingly for people who are older.
Gulf War 1990-91: Nerve Agent Pre-treatment Tablets
To ask Her Majesty’s Government what is their response to the decision of the Pensions Appeal Tribunal in Edinburgh on 29 August in the case of Michael John Kozac that his death in October 2003 was directly attributable to high blood pressure caused by the consumption of nerve agent pre-treatment tablets, which he was required to take during his service in the Gulf in 1990-91.
My Lords, the decision of the Pensions Appeal Tribunal was based on the coroner’s verdict that Mr Kozac’s death was due to natural causes to which his military service in the Gulf campaign and an assault on 31 August 2000 were contributing factors. The coroner did not say that his death was directly attributable to the consumption of NAPS tablets, and the overwhelming evidence from scientific research shows no adverse effects from NAPS tablets.
My Lords, I thank the noble Baroness for that Answer. As she will know, Mr Kozac died in hospital after an operation. Mrs Kozac then had to wait four years for an inquest. The coroner found that his death was attributable in part to his war service but the department refused to accept that finding, so Mrs Kozac appealed. The department fought the appeal and lost. How does that history square with what the noble Baroness was saying yesterday in answer to my noble and gallant friend Lord Bramall about the importance of providing for the families of deceased and injured veterans?
My Lords, it did indeed take four years before this inquest was held. That had nothing to do with the Ministry of Defence. Indeed, when the inquest took place, the Ministry of Defence was not represented. The coroner said that the assault which led to Mr Kozac having a dissection of his aorta had been a contributing factor. It is regrettable that anybody has to suffer any ill effects, but the question of Gulf War syndrome—which we have discussed at length in this House and which I know the noble and learned Lord has a great interest in—is something to which the department has given great resources. Indeed, those who suffer from the syndrome get financial support, depending on the nature of their disability.
My Lords, I too thank my noble friend. Is she aware that this decision is seen as one of landmark importance by the ex-service community? Recalling the admiration felt across the House yesterday for British troops killed and maimed in our service, what action is the MoD taking to identify other veterans and bereaved families who could benefit from the implications of the tribunal’s decision?
My Lords, I think my noble friend will be aware that any decision of the Pensions Appeal Tribunal is not a precedent. That is an important fact. The Ministry of Defence cannot appeal, except on a point of law. Disagreeing with the evidence, and indeed the suggestions made about the cause of death, is not a basis for appeal, so I do not think it is a landmark decision in that respect. As far as yesterday’s decision is concerned, Lord Justice Carnwath said that the Secretary of State was,
“entirely justified in bringing the appeal”,
“seeks to clarify some important and difficult issues”.
Those issues are complex. I remind the House that we have only had the compensation scheme since 2005 and it is, of course, subject to review by the noble and gallant Lord, Lord Boyce.
My Lords, can the Minister at least accept that veterans will think that this has important implications for others who may have suffered severe ill health as a result of their service in the Gulf War? As a member of the Royal British Legion Gulf War Group, I am very conscious of the extent to which veterans have been looking at tribunal decisions of this sort and assuming that they have implications for others. Will the Minister give us at least the assurance that, if others come forward who appear to have illnesses of a nature similar to that of Mr Kozac, they will be dealt with speedily and not delayed in the way that, unfortunately, has happened in this case? I accept that it is not the fault of the Ministry of Defence.
My Lords, I welcome the noble Lord’s last point—that he accepts that the delay was not due to the department. Perhaps I can remind the House of exactly what the verdict was. Death was due to natural causes, to which Mr Kozac’s military service in the Gulf campaign and an assault on 31 August 2000 were contributing factors. Indeed, the coroner said, when explaining the verdict to the widow, that the evidence,
“goes no more than to suggest that that may be an explanation on the balance as to why his blood pressure was”,
high. That was considered to be a contributing factor. We should be careful not to mislead others into thinking that there are more implications in this decision than perhaps there are.
My Lords, I return to this subject, but with nothing new to say. We have made it clear that we are awaiting the outcome of the Institute of Medicine’s review. It is now looking at the report that was prepared. We have discussed it in this House. The report is due, I understand, in February. Lawrence Deyton, the chief public health and environmental hazard officer at the Department of Veterans Affairs, reconfirmed on 19 May that the Institute of Medicine is looking at the review that took place last year. Until that work is completed, it is not the intention of the Ministry of Defence to make any more comments on that research.
My Lords, I think it was clear in the Gulf War that there was a real concern about the threat of the use of chemical and potentially biological weapons. Those who took these tablets did so to protect themselves in what could have been extremely hazardous circumstances. It would have been negligent of the Ministry of Defence not to consider how best to protect our troops at that time.
The Government’s approach to the question in principle is that, if there is a problem and veterans are suffering, we should do all that we can to support them and identify their problems. The work that we are doing on Gulf War syndrome at the moment and the research that we are supporting, which is based mainly at the University of Cardiff, is about looking at how to help veterans face the future and deal with any medical problems that they have. As I mentioned earlier, there is also financial support which is based on the need of individual servicemen. It is important that that financial help is given on the basis of need and not on the basis of any label attached to any illness.
My Lords, the Government have put in place a regulatory framework that sets the strategic direction and allows the necessary investment in energy infrastructure for both energy security and sustainability to come forward. There are explicit incentives in this framework for delivering secure supplies and for sustainability, such as our support for renewable energy.
My Lords, the national policy statements on energy will set out the Government’s policy on energy, which will provide the context in which the new Infrastructure Planning Commission will take its decisions on planning projects of major national significance. Clearly, those national policy statements on energy, which I hope will be published in draft form very shortly, will embrace the Government’s energy policies. Our aim to reduce carbon emissions in this country and to negotiate internationally to reduce carbon emissions worldwide will be fully included in that.
My Lords, I set the context in which the national policy statements on energy will be put forward. We have not yet published the national policy statements. I will not anticipate what is in those statements but clearly it will be consistent with the Government’s energy policy.
My Lords, two of the key messages of the Ofgem report concerned gas: first, that imports will increase substantially under any of the scenarios; and, secondly, that the biggest risk to energy dislocation is gas supplies in winter. What figure or percentage do the Government consider to be the maximum for imported gas that is compatible with energy security in this country?
My Lords, I certainly do not wish to give such a figure as I do not think that is an appropriate way to look at the gas needs of this country. As the reservoir of gas in the North Sea starts to decline, as it is doing at the moment, it is very important that we diversify our supply.
The noble Lord will know that there has been a large increase in import facilities. We work very closely in Europe for a greater liberalisation of the European market to increase those diverse supplies. We are active in relation to the southern corridor to bring gas from the Caspian through to Europe. We think that the best approach is to ensure as liberal a market as possible to ensure that we continue to see diversity in supply; but we should never forget the continuing importance of the North Sea as a strategic reserve.
My Lords, the Minister will be aware of the report of the Committee on Climate Change, of which I am a member. The report, which was laid before Parliament yesterday, showed the need for a step change in government policy if the Government are to meet their carbon emissions reduction targets in the Climate Change Act. Can he confirm, therefore, that the Government will make a step change to achieve the requirements set out in the climate change committee’s report—for example, by 2020 introducing 8,000 new wind turbines, three nuclear power stations and, by 2016, four carbon capture and storage demonstration plants?
My Lords, the report of the Committee on Climate Change is very important. It was published yesterday, and the Government will consider it very carefully and respond in due course. I believe that the policies that we have set out and are embarking upon do, indeed, represent a step change. The very fact that we have set a target that renewable energy should be responsible for 30 per cent of our electricity needs by 2020 is a visible indication of that step change.
My Lords, the Minister is struggling manfully to cover the Government’s rising panic that, because of their dithering—as we all know now from their own scientists that they put in at DECC—the lights most certainly will go out. Is he aware that in less than nine months, he will be out of his misery, because a Conservative Government, who do have a plan, will be responsible for it all?
In your dreams, my Lords. The Government believe that we have the right energy policy. On the question of generation in the future, the fact is that more than 10 gigawatts is under construction, and a further 10 gigawatts has already received planning consent. I am confident that we will have the energy security and supply we need. As for dithering, what about the policy of the party opposite in relation to nuclear power and the ambiguity—to put it at its kindest—of the remarks of the leader of the Opposition?
Can my noble friend advise the House on what progress the Government are making in establishing an economically viable pricing structure for feed-in tariffs? Without any such meaningful structure, the Government’s ambitions for low-scale generation are likely to be stillborn.
My Lords, we set forward a tariff in a consultative paper, we have received a lot of comments, and we will consider those and publish the finalised tariff in due course. Of course we want to make a success of feed-in tariffs. We believe that microgeneration, which is available to householders, schools and small businesses, is a fantastic way to show the way forward in relation to renewable energy. The kind of financial structure that we have put forward does, we believe, provide the answer in terms of providing the right incentives and is very much in parallel to schemes that are in operation in continental Europe.
Welfare Reform Bill
Order of Consideration Motion
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 3, Schedule 1, Clauses 4 to 7, Schedule 2, Clauses 8 and 9, Schedule 3, Clauses 10 to 20, Schedule 4, Clauses 21 to 42, Schedule 5, Clauses 43 to 46, Schedule 6, Clauses 47 and 48, Schedule 7, Clauses 49 to 52.
Policing and Crime Bill
Committee (4th Day)
Clause 30 : Offence of persistently possessing alcohol in a public place
107: Clause 30, page 26, line 18, leave out subsection (1)
My Lords, if I can make myself heard, I will introduce myself by saying that although there is a new face at the Dispatch Box on this subject, it does not signify a different approach to the Bill. However, there will inevitably be a change of style.
Our amendments in this group are designed to probe various aspects of the new offence, and clarify what the Government are intending to achieve. Why, in a word, will the new provision work? The Government are right to address the scourge of underage drinking. My noble friends Lady Hanham and Lord Bridgeman spoke of the Conservative Party’s commitment to take seriously this growing problem. The shadow Secretary of State laid out further policies last week to address a problem that has only grown worse under the Labour Government. The phrase of the former Prime Minister, “Tough on crime, tough on the causes of crime”, has become a soubriquet for continuing lawlessness. I am therefore extremely doubtful that this measure will do anything significant.
First, there are already numerous powers on the statute book that the Government have brought in, in the hope that they would be used to protect communities, and the children involved in serious underage drinking. It is evident from the crime and health figures that these powers are simply not working. The problem is too great to be solved by another minor offence being added to the patchwork that we have seen over the past 13 years. This is one more example of an area where the Government have run out of steam, endlessly tweaking existing legislation rather than getting to grips with the problem and going back to basics.
I also have a few questions about the offence that my amendments are designed to probe. For example, Justice has raised the possibility that the interaction between this clause and the previous one will lead young people to be forced to incriminate themselves for a criminal offence. Will the Minister confirm whether the power in Clause 29 to take a name and address will be used to build up evidence for this offence? How else will the police know whether the same young person has been caught three times?
I would also appreciate more clarity on the level of penalty that will be imposed. Presumably, in cases where the person is under 17, the case will be held in the youth courts. What penalty would then be considered appropriate? Is my contention correct that the clause is intended to work solely in conjunction with the amended offence in Clause 29? If so, why does the legislation not make it obvious that there is a clear progression from two strikes involving confiscation to an offence on the third occasion?
Amendment 108 explores what might be considered a reasonable excuse. Is the presence of an adult sufficient, as current legislation would suggest? If so, why is that not specified? In the debates in another place, the attitude of “Of course that would be a reasonable excuse” came up a lot; and it is easy to think of situations where prosecution for an offence would be completely unwarranted. Unfortunately, with vague legislation one can almost guarantee that power will be applied inappropriately, and another young person will be criminalised. The Minister must be clearer about what sort of behaviour will fall on the wrong side of the line, and what will be considered acceptable. It is very easy to talk in black and white in this House, but it is always the grey that occurs on our country’s streets that causes problems.
Amendment 109 is intended to explore why the Government did not limit this offence to open containers only, as is the case in other legislation. I should say that I think I know the answer following a private discussion with the Minister this morning, but I think that it should be public knowledge.
Amendment 110 is designed to probe the definition of a “public place”. Current legislation allows 16 and 17 year-olds to drink on licensed premises, yet here we are making it an offence for them to drink persistently in a park, for example. It appears that even where a family has hired a public place for a private party an offence could still be committed if it were to happen three times within a year. Is that the case? If so, why? I beg to move.
My Lords, I shall speak to Amendment 109A and the Question whether the clause shall stand part of the Bill. Amendment 109A seeks to introduce the concept of a breach of an acceptable behaviour contract to give effect to the Government’s intentions. The proposals outlined in Clause 30 were first trailed in the Government’s Youth Alcohol Action Plan published in June last year, which said that in the case of persistent public drinking by young people:
“In these cases, it is essential that any interventions should involve not only the young people themselves, but should also address the behaviour of parents who are not taking their responsibilities seriously”.
I cannot disagree with that. The Government then said that they would be bringing forward legislation on persistent drinking, stating that they would,
“implement new legislation to make it an offence for under-18s to persistently possess alcohol in public places. Prosecution will require evidence of continued confiscation and failure to abide by an ABC. The penalties applied will depend on the nature of the behaviour in question, whilst taking into account the young person’s previous criminal record”.
The wording is reflected equally in the regulatory impact assessment that sits alongside the clause.
Despite that, the offence in Clause 30 does not seem to follow the stated policy objective in that it does not require a breach of an acceptable behaviour contract. It is a simple “three strikes and you’re out” test, so can the Minister explain whether there has been a change in approach? If not, is it intended that ACPO or the Home Office will issue guidance on the use of the powers, such that there will be a need for a breach of an acceptable behaviour contract before the offence is deemed to have been committed?
Confiscation is a simplistic and inadequate response to the problem but at least an acceptable behaviour contract involves some co-operation with the child and his family and a more holistic approach to the problem. It is interesting that during the Recess we saw a report from the BMA, Under the Influence, about the damaging effects of alcohol marketing on young people. The solutions are all to do with marketing and not with simply removing the alcohol from the child on the street.
We believe that this clause should be removed from the Bill because it introduces a new offence of persistently possessing alcohol in a public place. Those under the age of 18 can be prosecuted for this offence if they are caught with alcohol in a public place three times within a 12-month period. There is a maximum punishment of a level 2 fine, which is currently £500.
We do not agree that this new offence is either necessary or helpful. For young people who are drinking at harmful levels and getting into trouble, the most effective way of supporting them will be, as I said in debates before the Recess, through voluntary access to education and treatment, rather than through drawing them into the criminal justice system.
A large number of factors increase the risk of young people using alcohol at a harmful level, including bad example from their parents or siblings, poverty, bad housing, exclusion from school, low self-esteem, having previously been in trouble with the law, being at risk of or involved in child sexual exploitation and influence by peers. All those things are stressful to the child and may cause him to seek oblivion in alcohol; the same sort of stresses cause many adults to do the same. Addressing alcohol misuse requires an integrated approach that goes to the bottom of their problems and considers their individual needs. There is currently a lack of such services and I urge the Government to give priority to filling that gap.
Clause 30 involves the criminalisation of children by creating an offence that does not even have a parallel with adults and which unfortunately blurs the distinction between offending and non-offending. The proposed offence is unprecedented in that it criminalises something that is not in itself criminal but becomes so if done a certain number of times. In this case it is not illegal if you do it once or even twice, but it is illegal if you do it three times. That is fundamentally flawed and an undesirable approach to creating offences. It would also bring about considerable difficulties of implementation. It will require the police to record every single incidence of a child in possession of alcohol in a public place just in case they do it again, and again within the period.
I draw your Lordships’ attention to the phrase, “without reasonable excuse”, which is too broad and potentially very subjective. Moreover, criminalising teenagers for possessing alcohol will fast-track more children into the criminal justice system, which is not the way to tackle underage drinking. While it is currently illegal to sell alcohol to those under 18, it is not an offence for under-18s to buy alcohol or to consume it in private. The clause sends very confused messages to children. If they are inappropriately gaining access to alcohol it should be dealt with by better enforcing restrictions on sale. When it places them in danger it could be dealt with under current child protection laws. This is far preferable to the counterproductive criminalisation of those we should be trying to protect. It is also unclear what constitutes a reasonable excuse.
In the Public Bill Committee in the House of Commons on 12 February this year, the Government stated that what would constitute a reasonable excuse would be determined on a case-by-case basis by the police when enforcing the provision. We have recently seen on TV some examples of the somewhat questionable judgment of the police. This will mean that each police officer will have to use his or her subjective discretion on what is considered a reasonable excuse, making it unclear not only for teenagers, parents and the community as a whole how this offence will apply but making it difficult for the police themselves, to whom we should pay attention. This is an unworkable and undesirable provision that should be removed in its entirety from the Bill.
Clause 30 introduces a new offence of persistently possessing alcohol in a public place for under-18s. Amendment 107, proposed by the noble Lord, Lord Skelmersdale, and the noble Viscount, Lord Bridgeman, would effectively render this clause unworkable, which I believe would be wrong.
All of us understand the seriousness of heavy drinking—indeed, persistent heavy drinking—by young people. We are coming at it a different way. I should say at the outset that I have listened to the concerns and views expressed by some noble Lords that this offence may unnecessarily criminalise young people. I absolutely agree with those who believe that young people should not enter the criminal justice system unless it is absolutely necessary. However, I also believe that it is very important to have this legislation because while fewer young people are drinking, drinking in public by young people is unfortunately a growing problem that we need to tackle.
The need for action is illustrated by a survey, Smoking Drinking and Drug Use Among Young People in England in 2008, which showed that 27 per cent of 11 to 15 year-olds who drink usually do so outside in public places. This represents a 6 per cent increase from 1999. It is also usually the heaviest drinkers who drink in public. More than half of the 11 to 15 year-olds who drink more than 10 units of alcohol a week usually drink outside. That is compelling.
Unsupervised drinking by young people in public not only puts them at significant risk of harm—I know that the noble Baroness, Lady Walmsley, is well aware of that risk—but all too often can lead to crime, anti-social behaviour and concern and worry for the public at large. The Government are clear that that is completely unacceptable and that it can create significant problems in certain local community areas.
Of course, there is no straightforward answer to this. The noble Baroness, Lady Walmsley, mentioned the need for an integrated approach, and she is absolutely right about that: there is not a straightforward answer. Drinking by young people must be dealt with through a comprehensive approach that includes education and involves their parents—as was rightly said by both the noble Baroness and the noble Lord, Lord Skelmersdale. We have therefore rolled out six alcohol arrest-referral pilot schemes for young people and committed to making personal, social and health education a statutory part of young people’s education. Subject to Parliament’s agreement, alcohol and drug education could become a statutory part of PSHE. This month, we will begin a consultation on revising existing drug and alcohol guidance for schools. In the new year, we will launch a national communications campaign to provide support, advice and information to parents and young people about the risks and harms associated with alcohol.
However, although support and advice are key to tackling those issues effectively, we believe that enforcement also has an important role to play. The police already have some powers to deal with young people drinking in public, such as the ability to confiscate alcohol. However, these powers are not sufficient because they lack the flexibility to deal with the different types of public drinking behaviour and they do little to deter repeat drinking.
In the youth alcohol action plan, we outlined our new tiered approach for dealing with young people drinking in public. For one-off instances, a young person’s alcohol could be confiscated and their parents may be informed. They could be dispersed from the location or under new provisions in the Bill, where appropriate, a person under 16 could be taken home. For repeat instances, we will encourage the police and local authorities to use acceptable behaviour contracts and parenting contracts.
The new offence in the Bill forms the third tier of that approach to deal with the very small minority of young people who are persistently caught drinking in public. Those young people are not being deterred by simply having their alcohol confiscated; they take no notice of any attempted interventions; and they continue to think it is acceptable to drink in public and to cause trouble. This offence is therefore necessary to ensure that the small minority—it is only a small minority—who cause a significant problem for their communities is dealt with.
Of course, there are certain circumstances where it may be acceptable for a young person to be in possession of alcohol—for example if it is a necessary part of their work or part of the family groceries. Therefore, the clause allows the police to use their discretion where the young person has a reasonable excuse for possessing alcohol.
Nobody wants young people to be unnecessarily criminalised, which is why the offence allows young people “three strikes”. That allows those who are not persistent drinkers to have their public drinking nipped in the bud through non-criminal interventions, such as ABCs, but I feel that it is necessary to introduce the new offence so that the minority of persistent drinkers, those who drink in public and are most likely to cause anti-social behaviour or worse, can be dealt with.
As I understand it, the first time that any action is taken against the young person is on the third occasion when he is caught drinking in public, and then he becomes a criminal. I am saying: why not provide for the use of acceptable behaviour contracts as a precondition before the person gets into the criminal justice system?
My Lords, I do not believe that the person becomes a criminal. As I say, I am very conscious of not wanting to do that. It is not a criminal offence but a civil offence if he breaks that ABC. This is appropriate sequencing to capture the very small minority who are guilty of drinking in public.
Amendment 108 would make any young person in possession of alcohol in a public place on three occasions in a 12-month period subject to this new offence, regardless of whether they had a “reasonable excuse” for possessing alcohol or not. As a general rule, we take the view that young people should not be in possession of alcohol in public. However, clearly there are some reasons why they might; I touched on them before. For instance, if they need to carry it as part of their job or are helping a family member to carry shopping, it is clearly quite acceptable for them to possess alcohol. It would also be acceptable for children to be given alcohol by their parents at a family picnic, as the noble Lord, Lord Skelmersdale, mentioned. These are the sorts of things that we consider to be “reasonable excuses”, so in these circumstances it is right that they do not count towards this offence.
While I do not think that it would be right to remove “reasonable excuse” from this clause, I also do not think it is right to try to provide a list of excuses that could be used as a defence. The best way to ensure that this new power will be used effectively and appropriately is to leave what types of things may constitute a “reasonable excuse” to the guidance that will accompany this new offence. The police will then be able to use their discretion while having regard to that guidance.
If we accepted Amendment 109, young people could be prosecuted only if they were caught with open containers of alcohol. This would make the new offence much less effective at tackling young people’s drinking in public and would raise all the same issues that we have had in the past with the police’s confiscation powers. The police currently have the power to confiscate from young people alcohol in open containers and in sealed containers if they believe that the individual intends to consume it. However, the police tell us that young people are using this requirement on the police to prove intent to consume to get around these powers. Too often, the police hear excuses such as, “It’s not mine, I was just holding it for someone else”, or “I wasn’t going to drink it”. This makes it very difficult for the police to confiscate alcohol even when they believe they have a good reason to do so.
We should not underestimate how quick young people are to recognise where such workarounds may be possible, and I am certain that this amendment would have similar implications if it were accepted. It would lead to situations in which, as soon as the young people see the police, they will just throw away the open containers and pretend that they have not been drinking the alcohol or are holding it for a friend. Even though they might be in possession of significant quantities of alcohol and had already been caught drinking in public before, the police could not take any further action under this provision until they caught them with an open container. That cannot be right; it does not help local communities, it does not allow the police to help the young person in question, and it sends the wrong message.
I understand noble Lords’ concerns; they do not want to see those who are carrying alcohol but have no intention of drinking it in public to be liable to prosecution. However, the amendment is unnecessary because, as I said in response to Amendment 108, the clause already allows young people to possess alcohol in public if they have a reasonable excuse. If they do not have a reasonable excuse for holding the alcohol, they should not be in possession of it, whether it is open or not.
I understand the intention behind Amendment 109A, and although I am pleased with the endorsement that the amendment gives to the use of acceptable behaviour contracts, it would make the new offence in Clause 30 much less effective. We certainly want to see much greater use of acceptable behaviour contracts as part of our approach to dealing with young people drinking in public, but the amendment would mean that a young person could be prosecuted for this offence only if they had agreed to an ABC. ABCs are voluntary agreements, and the amendment would simply deter young people from signing up to them in the first place, knowing that doing so could prevent them from facing prosecution for persistently possessing alcohol in public. It is not right that young people who persistently drink in public and cause trouble can escape prosecution by simply refusing to engage with the ABC process.
Similarly, for those involved in more serious alcohol-related disorder or anti-social behaviour, an ABC may not be issued. They may be instead given an ASBO. This amendment would have the effect of preventing those who had been involved in more serious issues and had received an ASBO, rather than an ABC, being eligible for prosecution for persistently possessing alcohol, even though by repeatedly possessing alcohol in public they may be causing serious problems.
Furthermore, if breaching an ABC were to be included as a precondition, a statutory definition of an ABC would be necessary. This could be extremely difficult as they are purposely designed to be flexible, voluntary arrangements, which can vary widely across the country. We certainly would not want any definition to have the effect of standardising ABCs, as it is clear that their use must be tailored to local, and even individual, circumstances.
I want to reiterate that we fully encourage the use of ABCs and would like to see them used more widely. We will issue new guidelines to the police, health and children’s services for dealing with young people’s drinking, including the use of ABCs and the new offence in Clause 30. But the very things which make ABCs effective—their flexible voluntary nature—means that it is not appropriate to include them as a statutory prerequisite for this offence.
Finally, I believe that the aim of Amendment 110 is to seek an explanation of those areas where possession of alcohol by a young person would count towards this new offence. However, this amendment, if accepted, removes the definition of public place from the Bill and would create unnecessary uncertainty.
As I have already said, there are significant risks associated with unsupervised drinking, including crime, disorder and anti-social behaviour. We have therefore said that if young people are caught possessing alcohol in any place the public has access to, apart from licensed premises, or are caught in a place they have unlawfully gained access to, it should count towards this offence. We believe that this is wide enough to capture all the public places where young people drink, such as parks, estates or out on the street.
We have explicitly excluded licensed premises because young people drinking on licensed premises are already covered by the Licensing Act 2003. Under Section 150, it is an offence to allow under-18 year-olds to consume alcohol on licensed premises unless they are 16 or 17 and it is with a table meal. However, the provisions cover the scenario where young people are caught in places which are not public but that they have unlawfully gained access to. We want to avoid the unintended consequence of encouraging young people to go underground and to drink in abandoned buildings, for example, where they may be even more vulnerable to the dangers that this sort of thing brings.
Drinking in the home is of course also excluded from this offence. The YAAP makes it clear that drinking at home is a matter for parents and not for government. Our role is to educate young people and their parents as to the effects of alcohol on young people so that they can make an informed decision. To that end, earlier this year we consulted on draft guidance and guidelines for young people and their parents based on the Chief Medical Officer’s advice. The consultation showed that there was broad support for these guidelines and so they will form part of the new communications campaign next year. I believe that the areas we have set out where possession of alcohol will count towards this offence will ensure that the police can deal with public drinking by young people effectively. Accepting this amendment would create unnecessary confusion over whether somewhere is a public place or not and would make this clause ineffective.
The noble Lord, Lord Skelmersdale, asked how the police will know that a person has been caught three times. Under Clause 29(3), a police officer may take the name and address of the person whose alcohol they are confiscating. That is how they will know a person has been caught three times in one year. It will be on the police record.
The noble Lord also asked about people incriminating themselves. This clause will make a difference by giving young people the opportunity to stop drinking in public before they can be prosecuted for this offence. We have proposed a three-tiered approach, which sits alongside Clause 30, to help deter young people from drinking in public. One-off offenders should have their alcohol confiscated and, if it is contributing to an alcohol-related crime or disorder, they may be given direction to leave the area. Those who are caught for a second time may be subject to interventions such as an acceptable behaviour contract or, if it is very serious, an ASBO. Again, we may wish to see a parenting order to help deter future drinking. In most cases, we expect to see that the interventions may be sufficient, on the third occasion, to stop the young person persistently drinking in public. We do not believe that they are incriminating themselves, because the offence kicks in only if they are caught the full three times. Each individual case of confiscation before that will be dealt with as I have set out above.
The noble Baroness, Lady Walmsley, asked what we think of what the police think about Clause 30. Specifically, do they think it bureaucratic or unenforceable? It is a good question, as I understand that some of the police have concerns about all that recording of young people’s names and addresses, and whether that will add significantly to bureaucracy. However, I also understand from other forces that recording that information is already regarded as good practice and is done in many areas. On balance, it is probably nothing dramatic but something that can be done without too much difficulty.
On the issue of the YAAP, about which the noble Baroness, Lady Walmsley, asked, we announced in the youth alcohol action plan that,
“prosecution will require evidence of continued confiscation”,
of alcohol and failure to abide by acceptable behaviour contracts, in so far as a breach of the ABC is concerned. We recognise that the proposed legislation differs from that announced in the youth action plan but, as I have said, we fully encourage the use of ABCs and our policy intention remains that they should be breached before this new offence is triggered.
I think that I have answered the questions that were asked. We will be issuing guidance for this new offence, which will encourage the use of ABCs where appropriate, and on that basis—
Perhaps I may ask the noble Lord about one matter. He said on a number of occasions that the object of this clause is to deal with unsupervised drinking. Would it not be better to state in Clause 30, if we need an offence at all, that no offence is committed if the alcohol is in the possession of a young person under the supervision of an adult? Rather than leaving it entirely to the discretion of the police, that would at least cover the cases of the family picnic, the youngster who is employed in the shop and, no doubt, many others.
My Lords, I am content that what we have here covers that, but rather than answering straight away while on my feet I should like to look at what the noble Lord has said. If that has a feasible and sensible way forward, I might come back with it, but at the moment we have certainly covered those points and I am content with what we are proposing.
My Lords, there is something rather delicious about this. The noble Lord reminds me irresistibly on this occasion of the Venerable Bede, who waxed lyrical about the drunkenness of his young monks. Garibaldi sent his English volunteers back because they got paralytic and behaved badly. The troops in the 1914 War drank wine out of pint tankards because they thought it was Watneys Mild, or something like that. There is an inherent thing in English culture of going out with the deliberate effort of getting totally and utterly paralysed, and I am afraid that there is nothing we can do about it. While I accept that it is not totally germane to this exact clause, it is well worth while that, on this occasion, the noble Lord is giving a very good imitation of the Venerable Bede.
My Lords, I do not quite know how to respond to the noble Earl, Lord Onslow, on that. We absolutely have to do something about this drinking. It is really worrying that this small group of youngsters are wrecking their lives, their future, their families and communities. We have to do something about that very real issue. On Sunday, up in north London, I came across some youngsters who were throwing rubbish around and causing absolute mayhem. They were about 14 years old, and they were so drunk. I sort of stopped them, and a couple of them were a little surprised at that, but it was just terrible. This was happening on a Sunday afternoon and it was absolutely awful. I can imagine that some people would be really frightened by this sort of thing and we have to do something about it.
Those children, and for the sake of this argument they are children, were obviously committing an offence. Surely it is up to the officers of the law either to apprehend them or do whatever is right. Those children were doing something wrong and illegal under existing legislation.
I said that I do not want to criminalise people, but if they commit a criminal act, the police are there to prosecute them. I believe that what we are doing here is the right way to go about trying to stop what is a sort of cancer in a tiny part of our society.
I want to question the Minister on a point of detail in what he said, but before I do so perhaps I may say how pleased we are to see the noble Lord, Lord Skelmersdale, on the Opposition Front Bench. I also pay tribute to the sterling work of the noble Baroness, Lady Hanham, who I very much enjoyed working with. She brought with her a considerable measure of wisdom not only from her years as a leading councillor but also as a magistrate. We will all miss her as a Front Bencher on home affairs.
My question of detail is this. The Minister mentioned that the young person would be “in a sense” on the police record. If the police have taken a note of the young person’s name and address, at what stage will that record be struck out or will it remain, in a sense, on the police record even though the person has not committed a crime?
I should like first to share in the welcome given by the noble Baroness to the noble Lord, Lord Skelmersdale, and to thank the noble Baroness, Lady Hanham, who sat opposite me for two years or so. We enjoyed skirmishing across the Dispatch Box and I wish her well in whatever she is now doing. As regards the point of detail, I am afraid that I do not have the answer off the top of my head and I shall write to the noble Baroness, Lady Miller.
Before the noble Lord, Lord Skelmersdale, winds up, I should like to respond to the comments made by the Minister on my amendment. He talked about the clause being helpful, but we do not believe that it will be helpful to young people, to communities or to the police. In this country we are developing a thought police by asking officers to be mind-readers and to make up their own minds on the street about the intentions of members of the public—and that is not just in this clause but in relation to other potential offences as well. My noble friend Lord Avebury was right to say that it would be far preferable for the first official action to be taken against a young person who is causing a problem to be an acceptable behaviour contract. In rejecting that suggestion, the noble Lord is rejecting a very important principle that has been known to Alcoholics Anonymous ever since it was established. To address an alcohol problem, there needs to be acceptance that there is a problem by the person concerned. That is what the acceptable behaviour contract does, so it is desirable that the young person should agree to the contract and involve themselves in addressing the objectionable behaviour. That is one of the strengths of Amendment 109A, not a weakness. I hope that the Minister will take these thoughts back with him.
The aim, if it can be achieved, is to have an acceptable behaviour contract before going on to anything else. Having guidance for people like police officers is a much better approach than trying to articulate this exactly. Certainly when I was the captain of a ship, I much preferred to have an outline of what my admiral or commander-in-chief wanted me to do. I then got on with it and delivered it within certain parameters rather than through specific guidance. Things like that work a lot better. What we propose here will be extremely useful and will achieve what we need, which is to look after these youngsters. As I have said, it is an integrated approach. This is not the only element and we are looking at the other aspects.
My Lords, I am glad the Minister has just said what he has said because my reaction to leaving out this clause is that something of the stick is required in these very serious—although, as the Minister said, small number of—instances of underage drinking as well as the carrot of education. I, therefore, cannot go along with removing the clause.
I was also glad to hear the Minister say that drinking at home is a matter for parents and not government. I assume that means that someone of tenderish years going to a wedding in a village hall, marquee or whatever is regarded, or should be regarded, as under the control of an adult. I do not expect the Minister to answer now but he might like to think about it.
I do not intend to reminisce like my noble friend Lord Onslow on the subject of the Venerable Bede but when the noble Baroness, Lady Miller, was speaking I was reminded that my nickname at school was “Back-to-Basics Bootle”. But, as I said, you need both the carrot and the stick, although not necessarily the stick in the form that is in the Bill. I shall look carefully at what the Minister and others have said, not least the noble Lord, Lord Pannick, who made a very valuable suggestion. I was glad to hear the Minister say that he would take it on board and look at it seriously, without any commitment, obviously.
Having said that, we have had a useful discussion on this difficult clause and I beg leave to withdraw the amendment.
Amendment 107 not moved.
Amendments 108 to 110 not moved.
Clause 30 agreed.
Clause 31 : Directions to individuals who represent a risk of disorder
110A: Clause 31, page 27, line 13, leave out “10” and insert “18”
My Lords, I support the other amendments in this group as well as the opposition to clause stand part. I add to the welcome that has been extended to the noble Lord, Lord Skelmersdale, and wish to say how much I too enjoyed working with the noble Baroness, Lady Hanham, who was so well informed, so clear and always absolutely to the point.
Clause 31 extends the police’s powers to issue directions to leave under Section 27(1) of the Violent Crime Reduction Act 2006, which means that these directions can be issued to children aged 10 to 15. Section 27 grants the power for a police constable to issue an individual with a direction to leave a locality for up to 48 hours. A direction may be issued if an individual in the locality is likely, in all the circumstances, to cause or contribute to the occurrence, repetition or continuance of alcohol-related crime or disorder in that place, or may be issued if necessary to remove or reduce that likelihood. This is a very wide power but it is hard to see how it will deal with underage drinking other than by moving it elsewhere, and it may criminalise a lot of young people.
When the Minister replies, I hope he will throw a little more light on the encounter that will take place between a police officer and, say, a 10 year-old under these provisions. Presumably, the officer will say, “You mustn’t come back here for the next 48 hours”. What is “here”? How big is it? How many streets are covered by it? When does 48 hours end? Suppose that the young person does not have a watch. I would be interested to have a little more information on the practicalities of extending this measure down the age range to children aged 10.
My amendment is supported by the Standing Committee for Youth Justice, whose membership includes Action for Children, Barnardo’s, the Children’s Society, the Council for Disabled Children, Justice, the National Children’s Bureau, the NSPCC, the Prince’s Trust and the Sainsbury Centre for Mental Health. I am giving this list not because the Minister is unaware of the membership of the standing committee, but to stress that his ideas for the best way of dealing with children who are out and about in places where there might be or is likely to be some alcohol-related crime and disorder are not shared by a range of expert organisations that have between them scores of years of work with children and experience of making children’s lives better. All those organisations are very opposed to this and the other measures that we have discussed in earlier sittings.
Why are they so opposed? Their arguments are that measures to deal with children should be welfare-oriented, not punitive, in order to deal with the problem, and that children will get the wrong message from these measures—the message that the forces of law and order are arbitrary, inexplicable and oppressive rather than helpful. A number of problems arise from the use of such a measure on children. The Standing Committee on Youth Justice points out that:
“There are no requirements in the provisions to ensure that a child who was required to leave a location is adequately safeguarded. There is … no requirement for the child to have access to an independent adult to explain the implications”,
of the matters that I raised earlier—how big is the locality, how long have you got to stay away, what happens to you if you should come back?
The standing committee would like to see this clause deleted from the Bill, as well as an amendment to Section 27(1) of the Violent Crime Reduction Act 2006 to raise the age there to eliminate 16 and 17 year-olds from the power to remove or to ask people to leave the locality. I beg to move.
My Lords, I listened, as always, with immense care to what the noble Baroness, Lady Stern, said. She is one of the wiser Members of your Lordships’ House. I pay that compliment with great sincerity; I believe it to be right.
We must be very careful about criminalising younger and younger people. Surely, if the Government do not accept the idea of raising the age to 18, it should be kept at 16, which seemed to be appropriate last year—or was it the year before?—when they passed a Bill saying that 16 was the right age. I cannot see why that should suddenly change in two years.
I accept, in spite of my remarks about the Venerable Bede, that there is a problem of young people drinking, but it is surely a problem of social disorder and lack of parental control and should be much more carefully dealt with by voluntary bodies and the probation service as applicable, rather than by dragging these children into the criminal system. We have, I think, the youngest age of criminal consent of any country in northern Europe. Some countries have it at 18; in my view, that is probably slightly too low, but we should be careful about the police, the courts and everyone getting involved with children as young as 11 and 12.
My Lords, I have some amendments in this group—namely, Amendment 11 and Clause 31 stand part—so perhaps it might be appropriate if I spoke to them. In fact, they follow on from what my noble friend Lord Onslow has just said.
My amendments are purely probing, to explore the new offence. We on these Benches are concerned that it will do more harm than good. It covers some very young people, as my noble friend has said, who must not be put in harm’s way. If the Government are serious about reducing youth crime, they must protect the young people.
The noble Baroness, Lady Stern, asked whether it is appropriate to allow a 10 year-old to leave with a group that represents a risk of disorder, with no steps taken to protect the child. Can we have a bit of joined-up thinking here? There is plenty of child protection legislation on the statute book, but it seems that this clause does not pay any regard to it.
The noble Baroness’s amendment also raises some pertinent concerns. There is a disconnect between the international definition of a child, to which we have signed up, and the different age specified in UK law, which causes many inconsistencies and much confusion when establishing offences and powers relating to this age group. I also have great sympathy with concern expressed for young adults who fall into the grey area between 16 and 18. The law appears to have conflicting expectations of them in terms of behaviour and penalties.
However, I am not quite sure that the noble Baroness’s amendment is the best way forward. I entirely agree with her concern about the trend of treating young people with suspicion when they are doing nothing wrong. There is certainly an unfair and slightly hysterical perception on the part of some that any teenager not actively engaged in meaningful activity in public is automatically looking for trouble—I just do not believe that that is true. That said, there is no doubt that some communities suffer from a real problem of genuinely anti-social and threatening behaviour, often committed by young people under the age of 18 and sometimes by young people under 16. The police need the appropriate tools to be able to deal with this behaviour.
I agree with the noble Baroness that the direction to move individuals on could be misused. My later amendment to the clause suggests an alternative solution that would offer a more appropriate way of dealing with misbehaving groups of young people, because there is not a shadow of doubt that there are some, perhaps very few, young people who misbehave and we have to get at them somehow.
My Lords, I have two amendments in this group, Amendments 111A and 112. Clause 31 proposes an amendment to Section 27(1) of the Violent Crime Reduction Act 2006, to reduce the age at which an individual may be directed to leave a public place from 16 to 10, even when no offence has been committed.
When the power that applied to those aged 16 or over was proposed, we on these Benches expressed our concern about the adequacy of the safeguards accompanying it. The JCHR said that,
“we consider that the safeguards to which the Government refers may not be adequate to provide the necessary assurance that the new summary power to give directions to leave a locality would only be used where it is necessary and proportionate to do so for the prevention of disorder and crime”.
The JCHR also asked the Minister why the power was necessary, in view of the existing powers to move people on for anti-social behaviour and to return children to their homes, and whether the Government had considered the additional safeguards proposed. The Minister, unfortunately, said that the Government were,
“not persuaded that any of these safeguards are essential”.
In the view of both the organisations Liberty and Justice, extending the power to disperse even younger children might endanger them by forcing them to move from places of relative safety—well lit places with plenty of people around, such as town centres—into unsafe areas where they would be at far greater risk. If children as young as 10 are posing a risk of alcohol-related disorder, this is a matter of concern for their legal guardians and for health and welfare services; simply banishing them from public sight is entirely inappropriate.
The proposed amendment to existing law in Clause 31 does not require officers to return children to their homes or to a place of safety but simply authorises an officer to direct children to leave the area—hence all the amendments that we have just heard about. There is nothing in Clause 31 or Section 27(1) of the Violent Crime Reduction Act 2006, which it amends, to ensure that a police officer takes into account the effect of such a direction on the welfare of the child to whom the direction is given. That should be included in the Bill to ensure that officers do so. Will the Minister accept that that must happen and give the Committee assurances that it will?
I have often quoted the UN Committee on the Rights of the Child’s observations on the UK’s culture in relation to children. It said recently that there are a,
“general climate of intolerance and negative public attitudes towards children”,
in the UK. Clause 31 appears to target children as potential offenders rather than as children with welfare needs. My amendments pose two different responses. Amendment 111A would force the police officer to take the child’s welfare into account before using the power and Amendment 112 would delete the clause and replace it with one that included a test for circumstances in which the power could be used and limited the area from which a person could be excluded to the “immediate area”.
Section 27, which is amended by the clause that we are discussing, has already been used by police in a disproportionate and indiscriminate manner to remove people without any real assessment of the risk of alcohol-related disorder that they may pose. On 15 November 2008, relying on Section 27, the Greater Manchester Police rounded up 80 Stoke City FC fans who had stopped at a pub on the way to a match at Old Trafford. Although the fans were well behaved and the pub landlord had no complaints, supporters were detained for about four hours and transported by the police back to Stoke-on-Trent on coaches, forcing them to miss the game. That is very serious.
In recent months, there have been more reports of police using Section 27 to prevent fans from attending football matches, with the Football Supporters’ Federation receiving many first-hand accounts from supporters of clubs across England. That organisation has now started a campaign to defend the rights of football fans wrongly served with Section 27 orders.
Amendment 112 would restrict the power to circumstances where individuals were causing alcohol-related crime or disorder and where it was necessary to use the power. As currently drafted, Section 27 is too broad. It allows the police to make an assessment of possible future problems—the thought police that I mentioned a little earlier—and to direct people to leave a locality whether or not they have anything to do with the problems envisaged. That is unfair and divisive within society and could well be counterproductive.
The amendment would also amend references to “locality” to “immediate locality”. Locality is not defined in statute. The Home Office guidance advises that a locality can be,
“the area in or around particular licensed premises, a geographical area including one or more licensed premises, or any other area defined by the constable”.
“could constitute the centre of a town or city … In deciding on the size of the area … consider practical issues such as ease of enforcement”.
However, Liberty has found that “locality” under Section 27 has been interpreted by the police to include a much wider area than the Government envisaged. In the Stoke City case, the locality from which the fans were excluded for 24 hours was the entire city of Greater Manchester—an area of 493 square miles. The obvious difficulty of enforcing a direction such as that relating to Greater Manchester indicates that the locality was drawn far too widely. In any case, the idea of excluding a 10 year-old child from the whole of Greater Manchester is quite ridiculous. This is sloppy drafting and it needs to be changed. I hope that the Minister will take due consideration of the two amendments that we have in this group.
My Lords, may I express my concern about the Government’s proposal to lower the age to 10? I admire the Government for the seriousness with which they have taken anti-social behaviour over the past 10 years. It has been a real blight on the most deprived areas, making those communities very uncomfortable for many people to live in. The Government deserve credit for taking this matter seriously. Of course, some young people are involved in that.
I also welcome the Government’s investment in various services for children, including youth work. My question for the Minister is: what training and support do police officers have to make such interventions with very young children? I apologise if I missed his reference to this earlier this afternoon. Do they experience training with youth workers at some point in their development? Do they have an understanding of, or are they taught at some point about, child development?
Of course, for some children with certain backgrounds, that sort of intervention from a man in a uniform may be rather like a red rag to a bull and might exacerbate the situation. I imagine that in most cases the most sensible response from the police might be to seek some youth work intervention. I know that the Government have been working on this. Very often, I would think, the best and most effective approach would be to get some youth work input into such a problem, particularly if it is one that recurs over time. I look forward to the Minister’s response.
As the Government set out in the Youth Alcohol Action Plan, we want the police to be able to deal with all children who are drinking in public. I have at length been through how their behaviour can affect them very badly, as well as their communities and a number of other things. At the moment this cannot happen because the police have the power to move along only those children aged 16 and over if they are likely to cause or contribute to alcohol-related crime or disorder. Unfortunately, it is not only the 16 year-olds. At the beginning of this debate I mentioned that a survey of 11 to 15 year-olds in 2008 showed that the weekly alcohol consumption of that age group had increased significantly since the 1990s. Indeed, of that age group, 27 per cent of those who are heavy drinkers drink outside.
The noble Baroness, Lady Stern, talked about looking at welfare rather than punitive measures. I go back to what we said in the initial part of this debate. We need a golf bag full of different clubs, most to do with helping the children, their families and all those aspects. The noble Earl, Lord Listowel, touched on youth work and that whole area, which is very important. I declare an interest: I am chairman of the charity the Cadet Vocational Qualification Organisation and I have witnessed how such organisations can make a difference. We saw a young man who was on drugs and was, effectively, an alcoholic at 15. Through joining the Cadet Force he ended up with four GCSEs, went into an apprenticeship and has recovered. We are well aware of how important that is, but I am afraid that we need a little bit of the stick as well as all those other measures. That is really where we are coming from on this. We have to be a little careful about youngsters judging some of these things to be arbitrary, inexplicable and aggressive. They do not need to be that and are not always that. These youngsters are sometimes a lot cuter in their understanding of things than we give them credit for.
The current age restriction on issuing a direction to leave means that when police officers encounter groups of children of mixed ages, as they very often are, they can get rid only of those aged 16 and above. I have talked about this group. The police are very clear that this limits the power’s effectiveness. They have commented on this and would like to have an ability to affect the others. That is why I oppose Amendment 110A. If accepted, it would increase the minimum age at which a person could be issued with a direction to leave from 16 to 18. That would mean that police powers to tackle alcohol-related crime and disorder would become considerably less effective than they are even now.
Clause 31 seeks to allow the police to issue directions to leave to persons aged 10 and over. I fully understand the concerns that have been raised that extending this power to 10 year-olds may put very young people in a vulnerable position. We do not want to see vulnerable young people being dispersed with no thought as to what will happen to them. On occasions, where it is better to take these young people home or into a safe place, we expect the police to do so. For those under 16 who are in possession of alcohol and are intoxicated or at risk, we want the police to take them home or to a safe place under the proposed powers in Clause 29.
Exactly. What the noble Lord, Lord Skelmersdale, is saying seems to me a sensible, grown-up way of approaching this: take the child back home and give it to its parents. That would be much better than letting it get into the criminal system. We must do everything that we can to keep children out of the criminal system and to look after them. Of course, what the noble Lord says about cadet groups is very important, but the solution proposed by my noble friend Lord Skelmersdale seems to me eminently sensible and therefore should be on the face of the Bill.
My Lords, perhaps I could finish; I am trying to follow through in a logical sequence and may come to an answer. Children at risk of significant harm can also be taken into police protection under existing powers in the Children Act 1989. Where it is better to disperse young people, Home Office guidance already advises police officers to consider whether dispersing them would put them into a more vulnerable position; for example, it could lead to them being assaulted or robbed or, as the noble Baroness, Lady Walmsley, said, they could be sent to a very difficult, nasty and dangerous area. This guidance will be amended, should this clause become law, specifically to address the dispersal of those under 16. Of course, the police already have a duty under Section 11 of the Children Act 2004 to have regard to safeguarding and promoting the welfare of children in carrying out their functions. We want to ensure that the child’s welfare is paramount in their considerations when using this power.
I hope that noble Lords are assured of the necessity of this clause to effectively remove or minimise alcohol-related crime and disorder when it is being caused by, or likely to be caused by, groups of children of mixed ages, some of whom may be over 16 but a number of whom will be, very often, under 16. It cannot be right for the police to be able to deal only with a proportion and not all the young people in that group. I also hope that I have assured noble Lords that we take child protection seriously.
Amendment 111 would give the police an alternative to the powers that we have proposed in Clause 31. Under this amendment, where the police encounter a person under 16 who is likely to contribute to alcohol-related crime and disorder, they may return them home or to a place of safety rather than issue them with a direction to leave. If there is a risk that simply moving a child on would leave them vulnerable, I agree that the police should take that young person home, but this amendment would require the police to choose between issuing a direction or taking the child home.
It is clear that the intention behind this amendment is to protect the safety and welfare of children, on which I am sure that we all agree. That is why I am happy to accept the principle behind the amendment and give the police the power to take young people home or to a place of safety in these circumstances. However, there may be some circumstances where it is appropriate to issue the child with a direction to leave and to take the child home. I would like to return to this issue on Report, when I will have had the opportunity to consider the exact wording, but I accept the thrust of the argument that has been made.
My Lords, as regards the training of police officers, we are talking about very young people. Of course, police officers encounter them, but I would appreciate receiving a letter from the Minister advising me and other Members of the House what support officers are given to engage sensitively with 11 and 12 year-olds. Is there a lead officer within each team, for example? I envisage a situation where an 11 year-old has had a bit to drink. They might be given a gentle talking-to and be encouraged to move away or the situation could become exacerbated and an argument could develop between an authority figure and the young person resulting in the young person being put into a police van and spending a night in a cell. That is not a good experience for a young person and we want to avoid that if at all possible. It would be helpful to receive advice on that.
My Lords, the noble Earl makes a good point in terms of training. I am very happy to write to him on this issue. It is important that we should think more about it—I am not sure exactly what thought has been given as to how that should be done—but it makes sense, because there are lots of risks, dangers and pitfalls. The aim, ideally, is to make these youngsters understand the slippery slope that they are on and to realise what the issues are. We should use an integrated approach to try to get them off this and make them become proper members of society.
Amendment 111A amends the clause so that a constable must have regard to the welfare and safety of an individual aged under 16 when issuing him with a direction to leave. I understand the intentions behind the amendment. I mentioned earlier that we would always want the police to have regard to a child’s welfare, and that is why such things as training are important and is why the existing guidance on directions to leave makes it clear that the police should be mindful of their existing statutory obligations under the Children Act 2004. Under that Act, the police must ensure that,
“their functions are discharged having regard to the need to safeguard and promote the welfare of children”.
This applies to all the police functions, including when issuing a direction to leave.
Our guidance suggests ways in which the police can fulfil this duty, such as by ensuring that vulnerable children are referred to the relevant service for a common assessment, that the police use their powers to take children into protective custody when appropriate, and that the police work with partner agencies in the criminal justice system to divert children away from crime and/or away from custodial sentences when community-based sentencing is most appropriate. The guidance will of course be updated should this clause become law. The amendment is unnecessary because the police already have obligations under the Children Act and guidance on protecting young people when issuing directions to leave.
Does the Minister accept that if Amendment 111A is not included, there is a real risk of uncertainty as to what takes priority—the duties of the police to prevent risks of disorder or the welfare of the child? That is why it is essential that something like Amendment 111A is included in the Bill.
My Lords, I do not believe that that is necessary. With the guidance there, the judgment is best made at the time by the police. I should think that generally the welfare of the child and looking after the children takes priority, but there may be exceptional circumstances when there is a high risk of something else happening. Although I would not wish to predict that, there needs to be a certain amount of flexibility.
Amendment 112 removes from the Bill provisions to extend direction-to-leave powers to persons under 16. As I said earlier, the police are telling us that the current age limit severely limits their ability to deal with groups of young people; the police find it very hard and they are keen that we should extend the powers. I therefore believe that extending directions to leave to 10 to 15 year-olds is necessary to ensure that the police are equipped with sufficient tools and powers to deal with these problems effectively.
As well as removing Clause 31, Amendment 112 would change Section 27 of the Violent Crime Reduction Act 2006 in two ways that would significantly weaken the police’s power to deal with those individuals likely to cause alcohol-related violence. First, it would mean that a direction to leave could be issued by a constable only to an individual who is actually causing alcohol-related crime or disorder. Secondly, the amendment would amend the Act whereby a direction could be issued only to leave the “immediate locality” rather than the “locality” as currently stated in the Act.
I shall explain why the Government believe that the amendment is unnecessary. There are clear steps that an officer must consider before issuing a direction to leave to an individual. An officer must consider whether it is necessary to do so under two stringent tests. First, they must be assured that the person’s continued presence is likely, in all circumstances, to cause or contribute to the occurrence, repetition or continuance of alcohol-related crime or disorder. Secondly, the police officer must also believe that the issuing of the direction to leave is necessary to remove or reduce the likelihood, repetition or continuance of such crime or disorder.
This is quite different from what is proposed by the noble Baroness. If the amendment were accepted, police would have to catch people in the act of causing alcohol-related crime or disorder. I am not convinced that this will be of much comfort or help to those worried about groups of young people who are drunk and likely to cause trouble in their area. Where crime and disorder is likely to occur but has not actually occurred, the police will not be able to disperse individuals to defuse the situation and prevent the crime or disorder from occurring. Surely this cannot be right. Should residents in a community have to wait for serious problems to arise before the police can intervene?
Similarly, the amendment would mean that a direction to leave can be issued only to compel a person to leave the “immediate locality” rather than the “locality”. If these powers are to be effective, the police must be able to tailor directions to leave to the individual and their surroundings. Narrowing that flexibility by allowing directions to leave to apply only to the “immediate locality” would severely limit their effectiveness to prevent alcohol-related crime and disorder, as it could lead to individuals regrouping a short distance away. For example, on a council estate the young people might leave the playground and congregate at the far end of the football field. I do not believe that it is right that a person dispersed from one street or one end of an estate can move a short distance and continue behaving in the way that warranted a direction to leave in the first place.
The noble Baroness, Lady Walmsley, raised a point about Stoke City football supporters. I am not aware of the case, but I am interested that the law was used to ban them from the whole of Manchester. I will look into the circumstances, because I would be interested to know myself. However, I am not aware of the case.
We believe that it is appropriate for the police to continue to use their discretion to identify the locality where an order applies; and if we want these powers to be effective, we should not limit their ability to tailor an order to the individual’s surroundings—these things need to be tailored. Nor should we introduce uncertainty about the extent of the “immediate locality”.
The noble Earl asked about police training, and I have had a note from the Box. All police are given access to Home Office guidance on directions to leave. We are also training front-line police in the use of these tools. However, I will write to the noble Earl, who deserves a more comprehensive answer.
My Lords, before the noble Baroness withdraws her amendment, I will say how pleased I am that the Minister will look with seriousness at my Amendment 111. In this complicated patchwork area of the law, it is likely that the legislation as drafted could have unintended consequences. With his myriad support troops behind him, he is far better equipped than I to ascertain what those are. I am extremely grateful.
My Lords, I do not doubt for one minute the Minister’s sincerity. Nor do I underestimate the scale of the problem. However, unfortunately I have not been convinced—although I have listened carefully to the Minister—that the measure will help the neighbourhoods that are plagued by groups of underage drinkers, or the young people who are ruining their health by drinking at such an early age. I am left with the impression that we are moving the problem from the playground to the football field and back again, instead of dealing with it in a long-term way.
I am also very much aware, thanks to the noble Baroness, Lady Walmsley, of the dangers of mission creep, and of powers being used for something that we had no idea they might end up being used for. In the mean time, and until we come back to this at a later stage, I beg leave to withdraw the amendment.
Amendment 110A withdrawn.
Amendments 111 to 112 not moved.
Clause 31 agreed.
Clause 32 : General licensing conditions relating to alcohol
113: Clause 32, leave out Clause 32 and insert the following new Clause—
“Licensing conditions relating to alcohol
(1) Section 19 of the Licensing Act 2003 (c. 17) (mandatory conditions where licence authorises supply of alcohol) is amended as follows.
(2) After subsection (3) insert—
“( ) The third condition is that the responsible person (as defined in section 153(4)) shall ensure that staff of licensed premises must not carry out (or arrange or participate in) any promotions or activities on the premises for the purpose of promoting the supply, sale or consumption of alcohol which encourages the irresponsible drinking of alcohol, including—
(a) games or other activities that require or encourage (or are designed to require or encourage) individuals to drink a quantity of alcohol against a time limit (except for finishing already purchased drinks at closing time), or to drink as much alcohol as they can (whether within a time limit or otherwise), or which encourages (or is designed to require or encourage) individuals to drink alcohol irresponsibly;(b) promotions for free or discounted alcohol to any group that is defined by sex, age, appearance, vocation, dress or numbers within the group (except any promotion or discount that is made with a table meal as defined in section 159);(c) providing unlimited or unspecified quantities of alcohol for a fixed or discounted fee which relates to alcohol and entry to the premises offers;(d) selling or supplying alcohol subject to conditions that encourage or reward (or are designed to encourage or reward) the purchase and consumption of alcohol in one 24-hour period by the awarding of a prize, including the award of free gifts or free alcohol;(e) selling or supplying alcohol for free or at a discounted price dependent upon the occurrence or non-occurrence of unpredictable events occurring or being viewed on the premises; and(f) promotions on the premises, other than those already covered by the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) advertising codes, for the sale or supply of alcohol that could be interpreted as conditioning, encouraging or glamorising irresponsible drinking or drunkenness or encouraging anti-social behaviour, or referring to the effects of alcohol intoxication in any favourable manner.””
Amendment 113 not moved.
Clause 32 agreed.
113A: After Clause 32, insert the following new Clause—
“Permitted temporary activities
Schedule (Permitted temporary activities) (which makes provision about permitted temporary activities) has effect.”
My Lords, I do not work on my own, rather like the Minister. Amendments 113A and 125L were suggested by the Local Government Association and relate to its concerns about the limitations on the role of a licensing authority member in objecting to various licences, including temporary activities.
Under current legislation, a named constituent or the police may raise an objection but a councillor or licensing authority cannot do so of their own accord. Would not extending this right address the Government’s concern, stated in earlier debates, that local residents might not see a licence application in time to object or might not realise that their concerns could be addressed? These amendments would also deal with the concern that local residents might be intimidated by the public complaints procedure, especially when expressing concerns about, for example, the prevalence of drug-dealing at a club. Although anonymous complaints bring with them their own problems, such as giving vindictive or unjustified objections a platform, these problems are not insurmountable. After all, local authorities are well used to dealing with vexatious objections to planning applications.
I understand that there are arguments against these amendments, particularly the possibility that the licensing authority would end up having the roles of both raising the objection and deciding on its validity, but it appears that in many cases normal practice is for a member of the local authority to go informally to the police to request an objection to get round that restriction, which seems to me rather silly. Have the Government considered seeking other ways to prevent any unfairness, perhaps by ensuring that members of the appointed committee who will be looking at the objection do not include the objecting member? Again, cannot we have a bit of joined-up government here?
During the Recess, I had occasion to go to, but not speak at, a public meeting of the local planning committee. Relevant interests were declared by both local and county councillors, and the former was prohibited from voting for or against the proposal by the chairman. Surely this would be a sensible way to proceed in licensing cases. I beg to move.
My Lords, Amendments 113A and 125L would allow local authority officers or members of the licensing authority to object to a temporary event notice on the grounds of any of the four licensing objectives. It is worth noting that last year some 120,000 temporary event notices were issued and that more than 300,000 have been issued since the Licensing Act came in—a remarkable number. To date, while we have heard of a few individual problems, there have been no reports of widespread issues. Thousands of voluntary and charitable organisations are able to benefit from holding these small infrequent events in village halls and community centres up and down the country.
The nature of these events means that it is important to strike the right balance between reducing bureaucracy and public protection. The temporary event notice regime provides a deliberately light-touch system which allows these small infrequent events to happen easily and cheaply. They are specifically designed to avoid long and costly bureaucratic processes, and giving additional powers to regulate their use, by broadening both who can object and on what grounds, runs counter to that objective that we have been trying to meet.
Such a light-touch approach is possible because of the controls that the Licensing Act places on their use. Premises are limited to holding 12 events per year under these notices, a personal licence-holder can issue no more than 50 notices in a year and a person without a personal licence can give no more than five notices a year. If these limits are exceeded the licensing authority can, quite rightly, intervene. If the event gets out of hand, under the Licensing Act, the police can close down an event instantly for up to 24 hours on the grounds of disorder, imminent disorder or as a result of noise nuisance.
Broadening the scope of not only who can object but on what grounds, as this amendment suggests, would be likely to lead to a significant increase in the number of objections made. While some of these will be valid, many may not, and dealing with those additional objections will lengthen significantly the process and increase the bureaucracy in what is supposed to be a “light touch” system. This will increase the burden on both licensing authorities and applicants, and that will be most felt by those events that are very unlikely to contribute to alcohol-related crime and disorder, such as charities and village fêtes, which rely on this system being cheap and straightforward. These amendments would therefore not be consistent with a targeted or proportionate response. Of course, if there are concerns about how the temporary event system is operating generally, the Government are happy to look at any evidence. Indeed, Ministers have already agreed to consider adjustments to the period of notice given to the police, but so far, there does not appear to be evidence of widespread problems of the kind that would warrant more significant changes to the regime.
I can understand the thrust of Amendment 113B, which we accept in principle. This new clause would mean that members of the licensing authority—the same people we talked about before—are added to the definition of “interested party”. This would allow them to object to a licence application or to initiate a licensing review—powers that are currently exercisable only by “responsible authorities” and “interested parties” under the Licensing Act and not by the relevant licensing authority, which is neither of those. I can understand the intentions behind this amendment and I understand that the Local Government Association is very supportive of it. I agree that local authorities need more powers to be proactive to deal with premises that are causing problems. That is why the Bill contains new powers for licensing authorities to impose general licensing conditions on groups of problem premises. This should address many of their concerns by allowing licensing authorities to deal with a number of premises in an area at a time.
That said, I recognise that allowing local councillors to act as interested parties or responsible authorities would give them more flexibility to decide what action to take and to act more proactively than is proposed in the Bill and in our recent consultation on the detail of the code. I have concerns that the amendment as drafted could lead to a perception of bias and we would need to ensure that appropriate arrangements are in place to dispel this concern, so I would like to consider the issue more fully and return to it on Report.
If at that time we decide to proceed with the new powers proposed by the amendment, following a licensing review, the licensing authority would be able to impose any licensing conditions it deemed appropriate. There would therefore be no need for the locally applied portion of the code in Schedule 4, which would allow the licensing authority to impose conditions only from a permitted list. I am aware that noble Lords have tabled a number of amendments to this portion of the code, and I shall refer back to it if noble Lords still wish to debate the amendments. The mandatory aspects of the code would of course be unaffected. On that basis, I invite the noble Lord to withdraw the amendment.
According to the Local Government Association—which, as the noble Lord, Lord Skelmersdale, pointed out, has asked for this amendment—the process that has to be undertaken now if there is an objection is complicated and circuitous. When there is an objection from constituents to a particular event, the local authority will have to lobby the police. The noble Lord exaggerated when he said that the power might be used against the village fête or the charities because it is highly unlikely that a local authority will object to an event planned by some of its constituents. It would be the exception rather than the rule for the local authority to object. In circumstances where a local authority believed that disorder would be created, it is an unnecessarily roundabout system for it to have to lobby the police, in a very short space of time, to have an event cancelled. I am glad that the noble Lord said that he will reconsider the matter before Report, but I hope that he will listen carefully to the Local Government Association in the mean time.
My Lords, we are certainly listening closely to what the LGA says. I have concerns about this being a light-touch measure. Notwithstanding what the noble Lord says, I know from my own experience that local politics can sometimes be a little tricky, and they will make this more bureaucratic and difficult. It is interesting how, once you give people opportunities to raise objections, they sometimes occur, though not always because they are sensible. Yes, of course we will listen, but we need to be very wary of removing this light-touch regime, which helps all these people.
My Lords, no one wants to stop the village fête or whatever other charitable activity may come under this provision. The Minister talks about a light touch, but the procedure for objecting is not as light as he makes out. None the less, I am glad that he will look at this matter, and I shall await with interest what, if anything, he comes up with. He can rest assured that I shall most certainly comment when the time comes. I beg leave to withdraw the amendment.
Amendment 113A withdrawn.
Amendment 113B not moved.
Schedule 4 : General licensing conditions relating to alcohol
Amendment 114 not moved.
115: Schedule 4, page 154, line 18, leave out paragraph 2
My Lords, I shall speak very briefly indeed to this probing amendment in order to give the Minister the opportunity to clarify what he intends the interaction between discretionary and mandatory conditions to be. He said a little bit about this in response to my previous amendment but, as I have already made clear, we believe that local authorities and local communities should have more powers to involve themselves in the awarding and amending of licences in their area.
The local authority is the appropriate place for such decisions to be made, given its knowledge of the area and the premises that such conditions will affect. Under what circumstances does the Minister intend mandatory conditions, which he said that under no circumstances would be removed from the Bill, to be made? Do the Government have a shortlist of mandatory conditions that they intend to impose quickly, with the discretionary power to be used only if local authorities feel that the mandatory conditions do not go far enough for their individual purposes? Or is it the other way around, with mandatory conditions to be used only if, in the Government’s mind, local authorities are not introducing discretionary conditions fast enough? It is a bit of a chicken-and-egg situation, and I am trying to identify the difference between the two. I beg to move.
My Lords, Amendment 115 would prevent the Secretary of State imposing any national mandatory licensing conditions on licensed premises. We fully recognise that the majority of businesses sell alcohol responsibly, and we certainly do not want to impose unfair burdens on them, particularly in a difficult economic climate. However, a minority of premises in this country operate irresponsible practices and promotions. By irresponsible, I mean offers such as, “All you can drink for £10” or “Girls drink free”—I have never managed to get to one of those with my wife, I must say, but apparently they exist. Such promotions encourage excessive drinking and contribute to alcohol-related crime, disorder and anti-social behaviour.
Many people, including many in the alcohol industry, would agree that this should not be happening anywhere. While we recognise that local problems are usually best dealt with at a local level, there are some problems or practices that are not local and therefore need a consistent and national approach. Almost half of all violent crime in England and Wales is alcohol-related. That is almost 1 million offences. Around one in five adults in this country admit to binge drinking at least once a week, and around one in four people think that drunken or rowdy behaviour is a problem in their area. These are clearly issues of national concern and certain types of industry practices and promotions are contributing to them. That is why we must take action at national level to restrict them.
That view was supported by about 90 per cent of more than 2,000 respondents to the Department of Health’s public consultation last year. ACPO stated that it believed that mandatory restrictions were necessary, and the independent review conducted by KPMG into the industry’s voluntary standards also concluded that a set of mandatory standards was necessary. The Bill therefore establishes the framework through which we can take action at national level to put a stop to those irresponsible practices and promotions once and for all.
We recognise the potential impact of such blanket restrictions, and that is why this Bill limits the number of mandatory conditions to nine to ensure that we do not impose undue burdens on the majority of businesses, small or large, that sell alcohol responsibly. That is why we held such a wide-ranging consultation on the detail of the conditions earlier this year. More than 7,000 responses were received and, although they are still being analysed, I assure noble Lords that they will be fully taken into account when developing the final conditions to ensure that they are proportionate and targeted.
I believe that it is right that we have the power to tackle these promotions and practices at national level, as the Bill allows, and we will continue to work to ensure that the mandatory conditions are as targeted as possible. I hope that, on this basis, the noble Lord will withdraw his amendment. In a direct answer to the specific question asked by the noble Lord, Lord Skelmersdale, we do not currently have a list of mandatory conditions. As I said, we have consulted, we have received 7,000 responses, and we will come out with the conditions.
My Lords, of course I was not intending to press the amendment, not least because I knew that there had been a hiccup, as one might describe it, in the consultation process. I received a letter with attachments from the British Beer and Pub Association, which gave some results of voting in the various areas where consultation was undertaken, and I am sure that there will also be written representations which need analysing.
It is interesting that between 60 and 75 per cent of the votes taken at the time disagreed or strongly disagreed with the current proposals. I think that that is across the board. I have not done the maths entirely—perhaps I should have done. I am very glad that consultation means that the Minister and his colleagues will be going back to the drawing board. On that basis, I shall await what happens. I beg leave to withdraw the amendment.
Amendment 115 withdrawn..
116: Schedule 4, page 154, line 24, leave out “appropriate” and insert “necessary and proportionate”
My Lords, my amendments in this group, Amendments 116 to 123, are probing amendments to clarify just how the conditions will be drawn up. As I said, I understand that the details of the conditions are out for consultation and have already been considerably amended in draft after the initial responses. I ask the Minister a direct question: will they go out to full consultation again before they finally see print? It is remarkable just how little detail the Government have inserted in the Bill. Will we have a draft of the relevant statutory instrument before the House gets to Third Reading? From what the Minister just said, that is extremely unlikely, so we will have to take it on trust.
My amendments focus on four areas: the proportionality of the conditions; the possibility of financial penalty; the interaction between the new conditions and existing legislation; and the number of conditions that the legislation allows to be imposed. My noble and learned friend asked a pertinent question about why there are to be nine. It does not really matter whether there are five, seven or nine; the fact is that they are currently in prospect. I hope the Minister will take this opportunity to clarify exactly what the Government’s intentions are.
Are these conditions intended to replace much of what is in existing legislation in order to establish a whole new level of licensing restrictions, or will they be used only where the existing legislation is failing or where powers are not available? The word “mandatory” leads me to believe that they will be imposed on every occasion, whether relevant or not, and I regard that as rather silly. Will they be used to impose conditions that many think desirable but are not strictly necessary, or are they to be used, as I said, in the last resort? Will financial penalties be used to enforce the conditions or to add a hidden cost to certain activities? Does the Minister anticipate that the full quota of conditions will be used, or are the numbers in existing provisions a high-end estimate? That is almost what my noble and learned friend asked. I beg to move.
My Lords, the noble Lord, Lord Skelmersdale, has raised some interesting and important questions, and I look forward to the Minister’s response. One of the questions in my mind, which Amendment 118 perhaps touches on, is how the Government’s proposal works alongside the present alcohol disorder zones, which, after all, local authorities have only just begun. There is possibly one in existence, but they have been barely used to date. Is it intended that this will be used alongside them? If so, how will that work?
My worry is that we are trying to solve this problem with legislation and that it will not react well to legislation. There are many other ways of approaching this, some of which my noble friend and the noble Lord, Lord Skelmersdale, touched on this afternoon. To burden the trade with more conditions would be reasonable if they solved the problem. As we have heard, the number of mandatory conditions is going up from two to nine—alongside the existing legislation, some of which was brought in only in 2007 under the Violent Crime Reduction Act—so I would be interested if the Minister can go into more detail on how they will work together.
My Lords, I have one question for the Minister that arises out of something that he said a few minutes ago. He talked about irresponsible promotions that have been used to persuade people to drink more than was good for them. He mentioned one in particular: the offer of free drink for all women. Can he tell us something about the nine matters that he has in mind? Do they include the prohibition of that sort of marketing ploy? Are similar initiatives by unscrupulous retailers already in his sights? It would be very interesting for your Lordships to know at least some of the nine conditions that will be covered.
My Lords, the Bill allows the Secretary of State to introduce such mandatory licensing conditions as he deems appropriate for the promotion of the licensing objectives. Amendment 116 would insert an explicit requirement that those mandatory conditions were necessary and proportionate rather than appropriate. The term “necessary” could be taken to mean that there must be no other way of preventing the type of problems, promotions and practices that we are trying to stop, and while I understand the intention behind the amendment, in practice this is not the correct test for introducing a limited number of conditions that are aimed at providing an effective national solution to the most irresponsible business practices.
The Bill requires that the mandatory conditions be appropriate. I hope that noble Lords will be reassured that any decisions regarding what is appropriate will be taken following this wide and detailed consultation. We are going through the 7,000 responses received in great detail. They are being fully considered and we probably will not complete that consideration until the new year.
In answer to the noble Lord, Lord Skelmersdale, there are no specific plans to hold a further consultation, but that will, to an extent, depend on where we are by the new year when we have gone through all possible aspects. There is no doubt that feedback to some elements of the code has raised practical difficulties with what we propose. We have listened to those, and the licensed trade and local authorities were particularly concerned about the locally applied portion of the code. In the light of our reconsideration of allowing licensing authorities to act as interested parties, clearly we will look at whether locally applied conditions are still necessary. We will return on Report with the change that we were talking about.
Amendment 117 would prevent any of the mandatory licensing conditions requiring licensed premises to pay a specific fee. I believe that this amendment is unnecessary. I can assure noble Lords that we would certainly not introduce such a condition because that is not the aim of these new powers. The aim of the new code is to ensure that all alcohol retailers sell alcohol responsibly to prevent alcohol-related problems arising. I do not see how a mandatory fee would achieve this.
There is also a need to strike the right balance between tackling irresponsible behaviour and not unduly penalising the responsible majority. A mandatory condition which imposed a financial payment on alcohol retailers would certainly not strike that balance. It would be unfair and disproportionate. However, I am concerned that putting such an exemption in the Bill could be interpreted as the only issue which Parliament felt should be outside the scope of the conditions, which I can assure noble Lords is not the case.
Amendment 118 would place a statutory duty on the Secretary of State to consider, before introducing the mandatory conditions, whether the objectives could be achieved through existing legislation. This is of course an important issue but I do not believe that this amendment is necessary. The Bill limits the number of mandatory conditions that can be imposed to nine, which will require us to consider very carefully which irresponsible practices and promotions should not happen anywhere, as well as force us to consider whether these could be addressed by other means. However, I agree with the noble and learned Lord that nine, while being a balance between too many and too few, is hardly done very scientifically. After this debate, I will talk to my team about that in more detail.
Let me reassure noble Lords that we share concerns about the enforcement of existing legislation and that a large programme of work is in place to address this. Over the past year, we have provided £6 million to fund enforcement and alcohol-related partnership activity campaigns, as well as training thousands of front-line practitioners. Effective enforcement should not be viewed as a substitute for ensuring that all alcohol retailers play their part. Both must happen if meaningful and lasting change is to occur, which is why I believe that these mandatory conditions are necessary.
Amendment 119 would reduce the number of mandatory conditions which can be imposed from nine to six. I fully understand noble Lords’ wishes to keep the number of mandatory conditions to a minimum, which is why we have imposed a statutory limit. I can assure noble Lords we will not simply impose nine conditions because the Bill allows for nine. That will come out of the consultation and all the work that is being done. Over time the code will need to develop to reflect changes in the way alcohol is promoted and sold. Reducing that limit to six could severely limit that necessary flexibility and may significantly reduce the effectiveness of the code. Therefore, I do not believe that six conditions strikes the right balance between tackling those acting irresponsibly while not penalising the responsible majority. Keeping the limit at nine will allow that flexibility while still ensuring that responsible businesses are not unduly burdened.
The noble Lord, Lord Avebury, talked about such things as free drinks for women; a Home Office document produced in May lays out some of the bans and issues that are to be addressed. I shall not go through them all, because it goes on at some length, but on page 19 of the Safe. Sensible. Social. Selling Alcohol Responsibly consultation document, various options are laid out. To go through those would take rather overlong.
Amendment 120 seeks to require that the Secretary of State must have regard to any existing licensing conditions before mandatory conditions can be imposed. I do not believe that this would be workable in practice. For this condition to be met, the Secretary of State would need to consider all the licensing conditions imposed by the 350 licensing authorities across England and Wales in all 179,000 licensed premises. That would be an impossible task. I understand that there may be a concern about mandatory conditions conflicting with existing conditions, but we have provided in the schedule that the mandatory conditions override any existing conditions where they are identical to or tougher than the existing conditions. This will remove any potential conflicts between conditions.
Amendments 121 to 123 relate to the locally applied conditions in the code. As I said earlier, I will reconsider, before Report, allowing licensing authorities to act as interested parties. Should it be right to proceed with new powers to that effect, there may be no need at all for the locally applied provisions in the code. On the basis of my earlier explanation on Amendments 116, 117 to 119 and 120, and in light of my intention to reconsider allowing licensing authorities to act as interested parties, I invite the noble Lord to withdraw his amendment.
Certainly, my Lords, and I am grateful to all those who have joined in this short debate. I do not think that I need to come back now to the Minister on any of the expositions that he gave in answer to my miscellaneous questions, so I beg leave to withdraw the amendment.
Amendment 116 withdrawn.
116A: Schedule 4, page 154, line 25, at end insert—
“(1A) The first order under subsection (1) must be to the effect that the sale of all alcohol in all establishments must be set as a minimum price per unit of alcohol sold.
(1B) A unit of alcohol for the purposes of subsection (1A) shall be defined as each ten millilitres of ethanol per whole beverage.
(1C) The minimum price per unit of alcohol sold to which subsection (1A) refers shall be determined by an independent board of experts.
(1D) The membership of the independent board of experts mentioned in subsection (1C) shall be determined by the Secretary of State.
(1E) The order referred to in subsection (1A) shall be exempt from the provisions of the Competition Act 1998.”
My Lords, I am moving this amendment to enable us to have a debate about the effect of pricing on the buying and consumption of alcohol. This amendment, therefore, proposes to set up a mechanism for creating a minimum price for various sorts of alcohol. I have done this, of course, against the background of alcohol consumption in the UK having risen markedly in the past 70 years. Although I heard the noble Earl, Lord Onslow, comment that we are just a nation of drinkers, consumption is very affected by price. That would also be shown to be the case historically because when Hogarth, for example, was complaining about Gin Alley, one proposal to solve that issue was to stop gin from being such an incredibly cheap drink.
Among the young now, the drink of choice on which to get completely drunk before going out to clubs or pubs is vodka which, again, is remarkably cheap for a very strong spirit. Quite a number of studies have been done with regard to this; the School of Health and Related Research at the University of Sheffield has reviewed the effects of alcohol pricing and promotion. It did a detailed analysis of how much was spent, in particular by those who were deemed to be binge-drinking already; that is, men drinking 50-plus units a week and women drinking 35-plus units a week. It is, of course, those people who are drinking far too much already who we really worry about, whether they are underage or over 18. The cost of that excess drinking in both health and social terms is something that this Committee has already touched on.
The Government now have some experience of dealing with things that affect health, such as putting a high price on tobacco. It is just one of the many weapons in their armoury for the fight against smoking. The purpose of my amendment is to ask whether pricing could form part of the fight against the excessive consumption of alcohol. What I am also trying to do in this amendment is not to have anything more than a minimal effect on those who buy one bottle of quality wine or a pint of decent beer in the pub.
In response to previous amendments, the Minister touched on the irresponsible promotions that take place. I shall quote some of the findings in the study that I have already referred to. The policy responses suggested in the study are to increase alcohol duty and link alcohol taxes to inflation; to link taxation rates to alcohol strength, including the introduction of tax incentives for low-alcohol alternatives; minimum pricing and policies targeting price-based promotions. A range of responses could be made. Research into the effect, for example, of setting a minimum price of 50p per unit of alcohol, which is pretty basic, shows that every year in England alone there would be 3,393 fewer deaths, 97,000 fewer hospital admissions, 45,800 fewer crimes and over 250,000 fewer sick days taken. The estimated total saving would be £7.4 billion over 10 years. Of course, those statistics are based on a number of assumptions, but common sense tells us that if the level of harmful binge drinking were to fall dramatically, obviously the monetary cost to society would fall as well.
In June 2009, the Centre for Economics and Business Research published a report looking at the potential economic impact of a minimum unit price for alcohol being introduced in the UK. The report, which was commissioned by SABMiller—a brewer, of course—interestingly looked particularly at the evidence base of the Sheffield report. It concluded that the economic case for minimum pricing is weak, saying that consumers would pay a significant price for little benefit and, because heavier drinkers are relatively unresponsive to price changes, the savings to wider society would be minimal. It is not a cut and dried argument and there is a lot to debate. I would suggest at the very least that apart from debating the issue today, the Government should invest far more heavily in their own research. I do not think that they have done a lot in this area, but they are aware of the benefits of this approach through, as I have mentioned, the reaction to tobacco when ensuring that VAT rose to a level that provided a disincentive. This is an area worthy of far more examination, and I beg to move.
I am particularly glad that my noble friend has raised the question of the price of alcohol and the effect this can have on overall consumption and on the various indices of alcohol harms such as health and crime. When the Government first introduced their own alcohol strategy in 2003, it was obviously the intention that measures would be adopted to reduce these harms, but they specifically eschewed the use of either price or availability, even though the preliminary study that was used to develop the strategy showed that these two forms of leverage were the only ones that would prove effective. That has turned out to be the case because since the 2003 alcohol harm reduction strategy was first published everything has got worse: alcohol-induced crime, alcohol-caused health problems and alcohol-caused deaths. That is all there in the statistics.
My noble friend mentioned specifically the Sheffield University study—which I think was paid for by the Government—which goes into an enormous amount of detail on what the effects would be of particular increases. If I remember rightly, a 10 per cent increase overall showed a reduction in hospital admissions of 50,000 a year and there were commensurate benefits in terms of crime reduction and in other factors such as family breakdown and so on. What is the Government’s intention? How do they intend to apply the lessons of the Sheffield strategy? Have they fully studied these effects and do they think that increases in price now are a lever that should be introduced into the strategy, as it was not in 2003? Will there be an opportunity for your Lordships to discuss the Sheffield study? It has enormously important lessons, not only for crime reduction and health but also, potentially, for plugging a hole in the Government’s revenue by advocating an increase in the taxation of alcohol. That is not dealt with there but the Sheffield model shows that a 10 per cent increase in price would produce another £1.5 billion in government revenue if the whole of the 10 per cent was accounted for by increases in the price of alcohol.
It may be that the public are not ready to tolerate such a one-off, huge increase in the price of alcohol, but we should at least talk about it to see whether there are any other alternative measures that can deal with an enormously important problem affecting our society. Not only the young people we have been talking about, but older people, too, are poisoning themselves with excessive consumption of alcohol while we sit back in this House and do nothing. I hope that the Government will pay attention not only to the minimum pricing suggestions in my noble friend’s amendment but to other ways in which increases in the cost of alcohol can be used to minimise the harm it causes.
My Lords, it is worth bearing in mind the following set of statistics. Last week the Agricultural Wages Board said that the wage for a skilled man was £333 a week, or something like that; half a pint of beer costs now £1.50. From the time of my birth in 1938 up until the first Budget of the war in 1940, if someone placed sixpence on the counter they could get five Woodbines, half-a-pint of beer and a farthing change. That half-a-pint of beer was bought for proper, old-fashioned pennies. The wage of a skilled agricultural labourer then was 27 shillings and sixpence a week, so the proportion of an agricultural labourer’s wage to buy half-a-pint of beer was infinitely larger then than it is now.
This illustrates that alcohol has become very, very much cheaper. To make vodka costs about tuppence a litre or something; it is extremely cheap to do. The European Commission says that it may not be less than 37.5 per cent alcohol, and that makes it impossible for people to sell lower strength vodkas.
I am producing these pieces of information to inform the Committee. I am not totally sure that the public would stand the price being put up to the same proportion of an agricultural labourer’s wage in 2009 as it was in 1938 or 1939, but it is worth while bearing this in mind while we discuss the whole problem.
My Lords, I note in passing that the Scottish Government are attempting to introduce the same sort of amendments as my noble friend is, particularly regarding unit pricing.
The Minister and his civil servants should go out and examine the price of white cider sold in blue bottles. I believe that there are about six or seven units of alcohol in a one-litre bottle, and the price is about £1.25. I regard that price as extremely irresponsible. I note—this is a classic House of Lords remark—that in one of the woodlands that I own there is a huge pile of those blue bottles, put there not by me but by youngsters who enjoy the peace and quiet when consuming their excessively cheap alcohol.
I entirely agree with much of what the noble Baroness, Lady Miller, has said. The explosion of pricing offers that result in the sale of strong alcohol at incredibly low, even below-cost, prices has been a major contributory factor in the rise of the binge-drinking culture in this country over recent years.
My noble friend will remember that I was responsible for health matters in your Lordships’ House many years ago. I have always looked at health matters in terms of the cost per working hour—on an average basis, rather than based on an agricultural labourer’s wage, but none the less that gives you some guideline. He is right: alcohol has become very much cheaper since the war.
I am not sure that the noble Baroness’s preferred way of addressing this problem is the most effective. The independent board of experts that she is calling for, in particular, seems to be an expensive and unnecessary obstacle to a rapid and effective policy of preventing irresponsible pricing offers. My noble friend Lord Onslow may or may not know that our intended way forward is to impose a higher rate of tax on super-strength alcohol, targeting only those who are seeking to drink to get drunk, not penalising responsible drinkers who like to enjoy a pint or two in their local pub, perhaps on their way home from work. To prevent excessively low prices, we would also impose an outright ban on below-cost-price offers—something that a board of experts is not needed to assess. This would of course include half-price happy hours in public houses.
It must also be wrong that some stores offer only multipacks. The impossibility of buying a single can of, say, beer, means that there is a double incentive to buy and, more importantly, to consume a six-pack. However, I am certainly in agreement with the intentions behind the noble Baroness’s amendment, and I encourage the Minister to listen carefully to her arguments, aided and abetted, I hope, by myself.
My Lords, I thank the noble Baroness for bringing forward the amendment. This is an important area and it is something that we need to think about. We as a Government are committed to tackling alcohol-related disorder and health harms. However, we also have to think about the impact on the majority of people in this country who drink alcohol responsibly, and we must ensure that they are not unfairly penalised.
I specifically asked questions about this issue when I was being briefed by my team, and there is no doubt, as they pointed out to me, that the majority of adults in this country drink alcohol. Any intervention on price could have far-reaching consequences, depending on how exactly it is targeted and how it is done, and that can be more difficult than one might think. I take the point, well hoisted in by the noble Earl, Lord Mar and Kellie, about the blue bottles of white cider. It is disgraceful that stuff like that is sold so cheaply—I share the noble Earl’s view. I would hope that part of what we achieve with this Bill will enable us to sort out those youths and stop them doing this and get them playing some sport or doing something a little bit better for them. I agree that this is a real issue that has to be dealt with, but we have to be very careful because it can have an impact that goes beyond what we would hope for on moderate and responsible drinkers. As the noble Earl, Lord Onslow, said, this country historically has people who drink—I have to say that I enjoy a nice drink. It has got to be done sensibly and we should not penalise those people.
The evidence of the impact of minimum pricing is not as conclusive as one might think. The noble Lord, Lord Avebury, was absolutely right that we paid for the fascinating Sheffield report, which suggests that minimum unit pricing may have a beneficial impact. It also suggests that the impact on crime and disorder would be only modest for a number of other reasons. However, I intuitively feel that a minimum unit price would help tackle the problem—a view which I was pushing with my officials—and would stop people preloading on large quantities of cheap alcohol and going on to cause trouble later. The price of some types of lager as well as cider is absolutely ludicrous. It is a loss leader and I cannot quite see what they are trying to achieve with it sometimes.
However, the fact that there is a disparity between this view and the current evidence base—we do not have enough evidence—illustrates that further work needs to be done before we take any action on price. That is why we announced last December and again in May, when we published the consultation on the new code, that we had decided not to proceed at the moment with measures concerning minimum unit price, but we are not ruling anything out. I assure noble Lords that the Government take very seriously the effect of cheap alcohol, which is pernicious. That is why we commissioned the Sheffield report last year and why, in the consultation on the code, the Department of Health committed to undertaking further research, building on the Sheffield review and with a view to identifying concrete proposals for action. That research will look to fill the key evidence gaps, such as the impact of price interventions on the alcohol industry, how it may differ across regions, and how different social groups will be affected. These are all very important issues which it is right to explore before we take any action on price.
Noble Lords will be aware that the Scottish Government have decided to introduce minimum unit pricing as part of their new health Bill, which has a long way to run. It is right that Scotland should consider a range of options to deal with its particularly acute problem. Up to 50 per cent of men and 30 per cent of women in Scotland exceed the recommended weekly guidelines. The data show that enough alcohol is sold in Scotland to allow everyone over 16 to drink considerably more per week than the guidelines recommend. Significant harm to health is done there: for example, there were 40,000 discharges due to alcohol-related illnesses last year. So Scotland has real problems, but the basis on which it has introduced the measures is not hard, complicated evidence such as the Sheffield study and further work. I believe that we need to do that kind of work.
In practice, therefore, the amendment, by requiring that we introduce a minimum unit price before any other mandatory conditions, would simply result in an unnecessary delay to the rest of the code until that further research had been completed. Unfortunately, the levels of alcohol-related crime and disorder are unacceptable now and we have to take action now. Introducing the new code is vital. It cannot be right that we delay this action because we are not yet in a position to make a full and final judgment on minimum pricing.
I hope that my response reassures the noble Baroness and the Committee that we recognise the problems arising from the availability of cheap alcohol. We need more precise evidence, because a lot of other factors are involved. If further research shows that price has a major impact and that it is necessary that we do something about it, that can be implemented, but we need to wait until that is done.
Will the noble Lord confirm that the Government have changed their fundamental policy that was announced at the time of the 2003 review that price was not a factor to be used in affecting consumption? At least the Government have moved this far to saying that price is an important lever that can be used to affect consumption.
I am saying that we need to have all the evidence that price is a factor. Certainly, intuitively, I believe that it is, but we need to have the Sheffield study developed further to get the precise evidence so that we can absolutely say that it is.
In terms of the taxation side of life, the Treasury announced in the 2008 Budget that duty on alcohol would rise in real terms by 6 per cent in 2008-09 and then 2 per cent each year over the following four years until 2012-13. The Chancellor also decided that an increase in duty to compensate for the reduction of VAT would stay in place once VAT is increased. I understand that that is another way of trying to tackle this issue and it would merit a sensible debate as well. On the basis of that discussion, I ask the noble Baroness to withdraw her amendment.
Before the noble Lord sits down, is he aware that the reason that the pernicious gut-rot white cider, which he so rightly deplores, is so cheap is that the Government, for reasons best known to themselves, have chosen to impose excise duty on strong cider at only one third of the rate they impose on strong beer?
The noble Lord said, quite rightly, that he is worried about cheap beer. I do not know whether this is within that context, but I remember very clearly when my daughter went up to Oxford that there were young people absolutely paralytic at four o'clock on the first day because of very cheap, subsidised university drink. That cannot be right. Will the Government make representations to the universities to stop that happening?
My Lords, I am not aware of that. I will take it away to see whether there is something that can be done without interfering too much. There are some things I do not think Government should put their nose into, but I will certainly go away and have a look at it.
My Lords, I thank all noble Lords who have spoken in what was a useful short debate. I certainly thank the noble Earl, Lord Onslow, for his historic perspective. I had gone back only as far as 1980 with the NHS's own figures that show that alcohol was 75 per cent more affordable in 2008 than in 1980. That means it has effectively halved in price over only 30 years, and those 30 years were when binge drinking was developing. There is undoubtedly a link.
My noble friend Lord Avebury has been working on this issue and pressing the Government on it for many years. No doubt he will disappointed, as I am, that the Minister, although sympathetic, has not said that further research will be undertaken in this area. I hope we will hear from him about that in due course. Perhaps by Report he will know what actual further research will result from the Sheffield study.
I am honoured and flattered to be aided and abetted by the noble Lord, Lord Skelmersdale. I understand why he does not like the independent board. We share with the Conservative Party a dislike of quangos. However, the difficulty is that whichever party introduces an across-the-board tax increase, everybody disregards the health aspect and says that it is just because the Government want more tax. There is an argument to be had both ways and possibly the end justifies the means. This is an area we will return to. Once again, I thank everyone who spoke and I beg leave to withdraw the amendment.
Amendment 116A withdrawn.
Amendments 117 to 119 not moved.
119A: Schedule 4, page 154, line 31, after “may” insert “—
My Lords, the Government have brought forward Amendments 119A, 119B, 125C and 125D, which are necessary to ensure that the mandatory conditions in the code can allow other bodies to exercise some discretion over their implementation. This is necessary because it will allow the mandatory conditions to refer to other existing rules and regulations with which licensees already have to comply, such as advertising codes, and can therefore ensure that the conditions are not simply duplicating these rules and regulations, and that neither are they inconsistent with them. The amendments are also necessary so that the police and other authorities can be given some discretion over how particular conditions are implemented on the ground to ensure that the conditions are effective and that they can be tailored so as to not impose unfair burdens on premises and to ensure that such activity is within the scope of our powers.
Amendments 120A and 125E ensure that if the mandatory licensing conditions set out in secondary legislation are varied or removed, the conditions are also varied or removed in the same way in the individual premises’ licences. That was always our intention, but as the Bill is currently drafted it is not clear that that would occur. It would seem unfair for Parliament to decide that a particular mandatory condition was no longer appropriate, but still require licensees to comply with it.
Amendments 123B, 124A, 124B, 125A, 125B, 125F, 125G, 125H, 125J and 125K relate to the locally applied conditions and, as I said earlier, in considering whether licensing authorities should be able to act as interested parties, I shall also reconsider our position on these conditions and will return to this issue on Report. However, the amendments are all necessary to ensure that the locally applied conditions would be effective if implemented.
Amendments 125B and 125K are necessary to ensure that the locally applied conditions could allow other bodies to exercise some discretion over their implementation, for the same reasons that I set out earlier. Amendments 123B, 124A, 124B, 125A, 125F, 125G, 125H and 125J all relate to the processes around the implementation of the local discretionary conditions. We have consulted widely on the process by which licensing authorities could impose these conditions and we are still considering over 7,000 responses to the consultation. The amendments ensure that we have the flexibility to implement whatever process emerges from the consultation.
Similarly, the amendments allow us to clarify in regulations what happens if a licensing authority wishes to revoke the local discretionary conditions, what happens if the licence itself is varied, reviewed or revoked and what happens to premises that have had the local discretionary conditions imposed if those conditions could no longer be imposed. The responses to the consultation will help us to determine these processes and it is important that the regulations can clarify these matters to remove unnecessary uncertainty. I beg to move.
My Lords, this group of amendments is very wide-ranging and covers several important points, which I hope I have understood correctly. We are, of course, extremely supportive of the intention that more power should be devolved to licensing authorities. We would like to see considerably more powers given to them, so on that basis we will not oppose the amendments. However, these provisions are becoming extremely complicated, with conditions coming thick and fast from all directions. I hope that the Minister will give some thought to ensuring that the implementation of these conditions will be made as clear as possible for the numerous businesses that will be complying with them.
Similarly, although consultation with those businesses is of course essential, the Minister is admitting with these amendments that the Government's policy with these provisions is more than a little unformed. This schedule is starting to look like an admission that the current licensing regime is unsatisfactory—with which we agree—but that the Government have no clear idea of what should replace it. They are therefore opening up the question in the hope that someone comes up with a better idea.
Finally, I did not hear the noble Lord mention the necessity or possibility of an appeal, which, as I read at least one of his amendments, is intended. If I am wrong in that, we will not need to move the appeal amendments which I have on the Marshalled List. Perhaps the noble Lord will confirm that moving them will be unnecessary.
The noble Lord, Lord Skelmersdale, is absolutely right about the complexity of these amendments. As I went through amendment after amendment, one could see that. It sounds more complex than it is because of the way that one has to put it across, but I think the noble Lord is absolutely right and noble Lords expect no less than for us to have a much clearer way of putting this across. That is only fair to all the people whom this applies to. Certainly, we will ensure that we achieve that.
It is wrong to say that we do not have a clear way ahead and that we are just waiting for the inputs. The document that we produced—to which I referred earlier— about the safe, sensible and social selling of alcohol has a very clear perspective on where we are going. We wanted to get the views of everyone involved in this area so that we were not doing something silly because we had not seen an effect that we were not aware of. It is really building on that, so we have a clear vision of the way ahead. On a final point, the noble Lord raised the appeals process. He is absolutely correct; there will be an appeals process.
Amendment 119A agreed.
119B: Schedule 4, page 154, line 32, at end insert—
“(b) specify conditions which involve, or consist of, the exercise of a discretion by any person.”
Amendment 119B agreed.
Amendment 120 not moved.
120A: Schedule 4, page 155, line 2, at end insert—
“(4A) Any conditions included, or treated as included, in relevant premises licences by virtue of section 19(4) and this section cease to have effect so far as they cease to be specified under this section in relation to those licences.
(4B) Any conditions treated as mentioned in subsection (4)(b) cease to be so treated so far as they cease to be specified under this section in relation to the relevant premises licences concerned.
(4C) So far as conditions cease to be treated as mentioned in subsection (4)(b), the existing conditions revive.
(4D) Subsections (4A) to (4C) are subject to any alternative transitional or saving provision made by the order revoking the specification.”
Amendment 120A agreed.
Amendments 121 to 123 not moved.
123A: Schedule 4, page 155, line 28, at end insert—
“( ) In considering whether to make any resolutions under subsection (1), the relevant licensing authority will have a duty to consider whether crime, disorder or violence could be reduced or prevented by the use of toughened polycarbonate drinking vessels, and if it is deemed that violence could be reduced or prevented, that licensing authority has a duty to take steps to ensure that such vessels are being used at the relevant times in relevant licensed premises.”
The point of this amendment is to give licensing authorities the duty to take steps to ensure that, where it is necessary, a condition could be imposed in the licence to move from glass to toughened polycarbonate drinking vessels. I have suggested toughened polycarbonate in the amendment, but it could be anything that was not glass and could not be used as a weapon. When I raised this issue in the House before, it was said that licensing authorities already have the power to do this. They certainly may already have the power to do it, but not many are availing themselves of that power. When one talks to the police, for example, as I have done in various areas, they say that one of the things that would make the biggest difference to them in the major trouble spots would be a no-glass rule.
This has been further backed up by research from the University of Wales College of Medicine in Cardiff, which shows that thousands of fight injuries could be prevented if clubs served drinks in plastic bottles. The man behind that study is a plastic surgeon, Jon Shepherd, who lobbied Welsh MPs. They have tabled a Motion in the other place, calling for glass bottles to be replaced by safer multi-layered plastic ones. The same argument applies to glasses being used in pubs. It is a terrible comment on society that there is a verb that comes from all this—to glass somebody. It means to smash them in the face with a broken-off glass, thereby causing absolutely horrendous injuries. It is a very small change to require that licensing authorities have a duty to look at this, but I believe that it would add urgency in addressing what is clearly one of the most effective ways to reduce injuries from binge drinking. We have talked this afternoon about the much wider health and crime issues. When either other drinkers or, as in many cases, innocent passers-by are attacked with glass and horrendous fights break out, started by people who are often so drunk that they have no idea what they are doing, we should do as much as we can to remove what clearly becomes a weapon in their hands. I hope we might be able to make this small change. I beg to move.
If this amendment had been moved 10 years ago I would have been hesitant about supporting it. Then, the only plastic glasses available were flimsy, brittle and discarded very easily. Things are very different today. You can now buy plastic glasses which look exactly like the genuine article. Only when you pick them up and see how light they are do you realise that they are not glass. This is a very worthwhile amendment. Does the Minister have any statistics about the number of people who are severely injured or disfigured in fights or unprovoked attacks in pubs and other drinking venues in the course of a year?
I also support this amendment. Certainly, I invite the Minister to carry out further research. I first came across glassing when I was a young national service officer. Young gunners—often from Glasgow, alas—often used to be brought up before the colonel and subsequently go to much more serious courts because they had got drunk in Salisbury and glassed other people, causing hideous injuries. Everybody who has been in the criminal courts knows that this is a very serious problem. The noble Lord will know this because I suspect that it even happens in the Navy from time to time.
It was raised quite recently and the licensed trade is obviously worried about it. We have to recognise that we must give the licensed trade time to make changes and encourage further research to find suitable alternative glasses—whether they are made of polycarbonate or something else—to substitute for what is, at the moment, a very popular drinking vessel. I would have though that bottles were less of a problem, but breaking bottles and shoving them in somebody’s face is another very common cause of grievous bodily harm. I do not know whether quite as many injuries are caused by breaking a bottle as by smashing a glass, but it is the sort of thing that the Home Office ought to know. It is a very serious problem; it exacerbates what would otherwise probably have been an unimportant fight into grievous bodily harm, and it is well worth looking into. I ask the Minister to think about it carefully and let us know as much as he can today and more on Report.
I will be very brief. The one thing that worries me about this is that it may not make much difference. Very often, people will find another weapon. It is very difficult to have something that cannot be used in some way. If you use rigid polycarbonate or other plastics, they can still be jumped on and broken. If they are rigid, they will still present a sharp edge of some sort, so you may find that you have spent a lot of money to not a huge effect, but it sounds good. When it comes to bottles, I believe that the recent Ig Nobel awards rewarded some research by someone who had found out whether it was worse to be hit over the head with an empty bottle or a full one. This may be of some use but I doubt it.
I support this amendment to the extent that I believe it is right that further research should be carried out. The noble Earl mentioned the possibility that a vessel of this kind might be used in a way that is almost as damaging as glass. However, we should certainly encourage the noble Lord to look into this question.
This amendment deals with drinking vessels. It might be as well to include bottles, as whether they are drinking vessels may depend on the way in which they are used. I am sorry that my noble friend referred to Glasgow, perhaps following the use of the term “glassing”. This certainly was a severe problem in Glasgow years ago. The answer to it that was produced at the time was very severe prison sentences. The judge who dealt with that problem meted out much more severe sentences than had previously been the case and reduced the incidence of the problem in Glasgow, at least for a short time.
My Lords, this is a very useful issue to have talked about. I assure noble Lords that I understand the intentions behind the amendment. We share concerns about the use of glasses in violent incidents. The noble Baroness mentioned Professor Jon Shepherd, who has worked very closely with the Home Office over the past few years. We are keen to see something like the Cardiff model develop. I had to ask what a polycarbonate vessel was. As has been said, when you pick up some plastic vessels the whole pint squishes everywhere, but I understand that polycarbonate vessels are more substantial. We would like a system whereby these are used on a voluntary basis. Most places are responsible. We would not want to remove all glasses because of an irresponsible minority. However, I take the points made by noble Lords. It is interesting that the noble and learned Lord, Lord Mackay, referred to Glasgow. The only injury that I have sustained to my face resulted from having been hit by a brick in a fight in a pub in Glasgow. What a person was doing carrying a brick around is another question, the answer to which has eluded me. However, it certainly was not a piece of glass, so different weapons can be used. One has to think of that.
The noble Lord, Lord Monson, asked about statistics. It is interesting to note that the British Crime Survey of 2007-08 estimated that there had been 87,000 violent incidents involving glass. That is a considerable number, but what it does not tell us—I tried to drill down into this—is how severe these incidents were. Some of them are likely to be less serious, such as threatening someone with a glass, bottle or whatever, but others will involve more serious injuries, and injuries inflicted by glass can be pretty awful. But certainly research suggests that the cost of glass-related violence is probably about £100 million a year, so this is not an insubstantial issue.
In the public consultation on the detail of the code of practice, we proposed a condition which could be locally applied by licensing authorities to prevent premises serving alcohol in glass containers at certain times. This is done by some pubs that serve drinks outside and we will all have been to such pubs, so this happens to an extent already. Of course, in light of our earlier debate, if we decide on Report to proceed with amendments which would make local councillors interested parties within the terms of the Licensing Act, which I think that we will do, there may no longer be a need for the locally applied portion of the code. But should this condition be in the final code, which of course also depends on the results of the consultation, licensing authorities could require the use of safer alternatives to glassware where appropriate. However, at this stage, imposing on authorities a statutory requirement to consider it places undue weight on one condition when in fact they should consider lots of options available to them and impose only those conditions appropriate. I share the consensus within the House that we need to look at this in more detail and consider substitutes. I will talk to my team about where we can go in the future on this. However, I do not believe that at the moment we should include this measure in the Bill.
Whatever views this House may have on the damage that people do to themselves through drinking, I should have thought we would take a more robust view on the damage they do to other people as a consequence of their drinking. This may be a statutory step. Unless the Government are willing to look at other statutory steps in addition, is there any reason why they should not take this statutory step?
My Lords, I hoped that what I had said previously had explained why I do not believe now is the time to do this. We need to consider all these things. I do, however, believe that we ought to do some research into this area and consider what could be done, not just in terms of glasses but of bottles, what things are bottled in and how that is done. However, I do not believe that at the moment it is right to include this measure in the Bill. On that basis, I ask the noble Baroness to withdraw the amendment.
My Lords, I am very grateful for the comments from noble Lords and noble and learned Lords. The distinction that has just been made is very important; namely, the distinction between damaging yourself, which is bad enough given all the costs involved to society and to your family, and damaging others, which falls into a different category. We should bear that in mind.
I am mindful that the Minister has just mentioned the estimated £100 million a year cost of this violence. I am grateful to him for highlighting that and the 87,000 incidents. This is a very serious issue. Although I understand that he does not want to include lots of extra measures in the Bill, many different bodies have asked for this measure. After all, we are not saying that it has to be undertaken automatically, but are proposing only that a licensing authority should be under a duty to consider taking this step. We are not saying that licensed premises must serve drinks in polycarbonate vessels or in an alternative material to glass; we are simply saying that the licensing authority must take steps in this direction.
Given the scale of the problem that the Minister has just enunciated, it is a reasonable ambition to wish to see the measure included in the Bill. I shall mull over the Minister’s comments and the support for the measure that I have received throughout the House before Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 123A withdrawn.
123B: Schedule 4, page 155, line 37, at end insert—
“(2A) Conditions treated as mentioned in subsection (2)(a) and (b) do not cease to be so treated except in accordance with subsection (2B) (and, in particular and subject to that subsection, do not cease to be so treated merely because they could not be included in a new resolution under subsection (1)).
(2B) Conditions treated as mentioned in subsection (2)(a) and (b) cease to be so treated so far as provided by—
(a) regulations under subsection (4), or(b) any transitional or saving provision made by an order under subsection (6) revoking the specification of permitted conditions in relation to the relevant premises licences concerned.(2C) So far as conditions cease to be treated as mentioned in subsection (2)(b), the existing conditions revive except so far as provided as mentioned in subsection (2B)(a) or (b).”
Amendment 123B agreed.
Amendment 124 not moved.
Amendments 124A and 124B
124A: Schedule 4, page 155, line 44, at end insert—
“(ba) a hearing before making such a resolution (including provision of a kind which may be made under section 183),”
124B: Schedule 4, page 155, line 46, at end insert—
“(ca) any other procedure to be followed in connection with such a resolution,(cb) appeals in relation to such a resolution (including provision delaying the coming into force of any condition) or any other appeals in relation to conditions,”
Amendments 124A and 124B agreed.
Amendment 125 not moved.
Amendments 125A and 125B
125A: Schedule 4, page 156, line 1, leave out from “reviewing” to end of line 2 and insert “, revoking or otherwise terminating such a resolution or conditions treated as included in relevant premises licences by virtue of this section (including provision about such a resolution or conditions which corresponds to provision made by or under this Act about the variation, review, revocation or termination of relevant premises licences)”
125B: Schedule 4, page 156, line 15, at end insert “(and such conditions may include conditions involving, or consisting of, the exercise of a discretion by any person)”
Amendments 125A and 125B agreed.
Amendment 125BA not moved.
Amendments 125C to 125K
125C: Schedule 4, page 157, line 1, after “may” insert “—
125D: Schedule 4, page 157, line 2, at end insert—
“(b) specify conditions which involve, or consist of, the exercise of a discretion by any person”
125E: Schedule 4, page 157, line 11, at end insert—
“(4A) Any conditions included, or treated as included, in relevant club premises certificates by virtue of section 73A and this section cease to have effect so far as they cease to be specified under this section in relation to those certificates.
(4B) Any conditions treated as mentioned in subsection (4)(b) cease to be so treated so far as they cease to be specified under this section in relation to the relevant club premises certificates concerned.
(4C) So far as conditions cease to be treated as mentioned in subsection (4)(b), the existing conditions revive.
(4D) Subsections (4A) to (4C) are subject to any alternative transitional or saving provision made by the order revoking the specification.”
125F: Schedule 4, page 158, line 2, at end insert—
“(2A) Conditions treated as mentioned in subsection (2)(a) and (b) do not cease to be so treated except in accordance with subsection (2B) (and, in particular and subject to that subsection, do not cease to be so treated merely because they could not be included in a new resolution under subsection (1)).
(2B) Conditions treated as mentioned in subsection (2)(a) and (b) cease to be so treated so far as provided by—
(a) regulations under subsection (4), or(b) any transitional or saving provision made by an order under subsection (6) revoking the specification of permitted conditions in relation to the relevant club premises certificates concerned.(2C) So far as conditions cease to be treated as mentioned in subsection (2)(b), the existing conditions revive except so far as provided as mentioned in subsection (2B)(a) or (b).”
125G: Schedule 4, page 158, line 9, at end insert—
“(ba) a hearing before making such a resolution (including provision of a kind which may be made under section 183),”
125H: Schedule 4, page 158, line 11, at end insert—
“(ca) any other procedure to be followed in connection with such a resolution,(cb) appeals in relation to such a resolution (including provision delaying the coming into force of any condition) or any other appeals in relation to conditions,”
125J: Schedule 4, page 158, line 12, leave out from “reviewing” to end of line 13 and insert “, revoking or otherwise terminating such a resolution or conditions treated as included in relevant club premises certificates by virtue of this section (including provision about such a resolution or conditions which corresponds to provision made by or under this Act about the variation, review, revocation or termination of relevant club premises certificates)”
125K: Schedule 4, page 158, line 26, at end insert “(and such conditions may include conditions involving, or consisting of, the exercise of a discretion by any person)”
Amendments 125C to 125K agreed.
Schedule 4, as amended, agreed.
Amendment 125L not moved.
Clause 33 : Injunctions to prevent gang-related violence
126: Clause 33, page 27, line 21, leave out “two” and insert “four”
My Lords, I have put my name to this amendment, which arises out of the deliberations of the Joint Committee on Human Rights. As your Lordships probably know, the spectrum on that committee is wide, but unanimously we were unconvinced that the Government had made their case for these gang injunctions. For instance, we are concerned by the Government’s ongoing discussion as regards the case of Shafi in the Court of Appeal as to whether civil injunctions can be amended to apply to children and young people. The Court of Appeal in that case made clear that the authorities have ample powers to deal with this behaviour.
Let us assume for the sake of argument that the courts have to have these powers. We would like to add a further two subconditions into the Bill. The amendment, with Amendments 130 and 131, increases the conditions that have to be met by the person or body bringing the injunction. Why do the Government need to resort to injunctions when there are criminal courts and ASBOs to deal with gang-related violence? They have been used in Birmingham to address anti-social behaviour, and the Minister told us—the JCHR—that this method had been a flexible and preventive tool which was able to provide immediate relief for a particular problem, without criminalising young people. The Minister also said that the criminal law would be used where it can be used. Therefore, we remain unconvinced that the use of injunctions is fair. Methods of controlling individuals that are outside the criminal process often avoid the appropriate standard of fairness. The Bill does not make it explicit that criminal proceedings are used whenever possible.
Amendment 130 produces a third condition whereby the applicant should have demonstrated that the prosecution of the respondent for a criminal offence was considered but not proceeded with. We also add a fourth condition, which is that the respondent should be over 18. I hope that that adequately explains the view of the JCHR. I underline that it was arrived at unanimously without any form of division and, therefore, I beg to move.
My Lords, I am very grateful to the JCHR for raising these issues in such a strong way, and to the noble Earl, Lord Onslow, for elucidating that. We on these Benches feel that this clause is a considerable move away from what we understand to be our justice system. Over the past few years, we have had to make some exceptions because of terrorism, and we have introduced control orders. These injunctions are similar in effect to control orders, but are taken out on someone who is not a terrorist. I have heard the Minister say that they are to apply to serious gang members, but we have to bear in mind when passing this legislation that these injunctions would be imposed on the person before proof that anything had happened. There would have been no court case to deprive them of their liberty. Therefore, it is a very extreme step to take on fairly flimsy evidence.
Having said that, we do not decry the seriousness of what happens between gangs, and when innocent members of the public are caught in that crossfire. It is extremely serious, but a number of aspects of the proposals within the clause worry us deeply. The idea that they will be applied to people under 18 is particularly serious. If the Government are minded to insist that the clause remains in the Bill, it should apply to adults, not children. We have already had an argument in this House as to whether children involved in prostitution should be regarded as victims or criminals, and we could have the same discussion about children who are regarded as gang members but then have an injunction served upon them.
There are a number of issues here. Before we would even dream of passing legislation that moved us so far towards depriving members of the public of their liberty without any court case, we would have to have a very full debate. I hope that these amendments will be the start of that debate as we move through this clause.
My Lords, Amendments 126, 130 and 131 seek to add to the conditions which must be met before a court can grant an injunction against an individual involved in gang-related violence.
Amendment 130 would require the applicant for an injunction to demonstrate that a criminal prosecution for the offences had been considered but not proceeded with, but I can assure noble Lords that these injunctions will not normally be sought against individuals where the evidence was such that the criminal justice system was already engaged or could properly be engaged. That is clearly always our preferred action. The amendment presumes that an identifiable criminal offence has been committed, which is capable of being investigated without delay and a charging decision made within a very short space of time. In reality, criminal investigations into gang activity are extremely complex and adding this extra condition would take a considerable period in cases where immediate action is needed—indeed, the police agree with this. This time lapse naturally carries an ongoing risk to the public in the interim. The ability to obtain immediate injunctive relief is essential, given the very real risk that gang offenders pose to the community.
The guidance issued on these injunctions will make it clear that, where appropriate, the criminal justice system should be used. That is the prime option. It is also worth noting that an injunction can provide the interim relief while a criminal investigation, resulting, one hopes, in a successful prosecution, proceeds. These injunctions can create the breathing space for the police to gather the evidence and for the CPS to make a charging decision while protecting the public from the individuals perpetrating the gang-related violence blighting their community.
The need to be able to respond immediately can be illustrated by a hypothetical example of an individual from a particular gang who has been shot at and seriously injured. A full criminal investigation is launched and community mediation services are deployed. The police receive credible intelligence warning them that specific members of the opposing gang are planning a reprisal shooting. The gang members identified are well known to the police, and there is previous evidence of gang membership and their links to gang violence. To try to prevent a reprisal shooting and to give breathing space for the criminal investigation and for community intervention and mediation, the police could apply for a without-notice injunction to prevent those thought to be planning the reprisal shooting visiting certain areas or associating with each other. I hope this hypothetical and practical example, and the reasons I have given, satisfy the Committee as to why that course of action is needed.
Amendment 131 seeks expressly to exclude persons under 18 from the gangs injunctions regime. For a court to grant an injunction, it must be enforceable. These injunctions are enforceable only by bringing proceedings for contempt of court. Should a civil contempt of court be proved, a court can impose a sentence of a fine and/or up to two years’ imprisonment. A court can hand down a fine only when the individual has a legitimate source of income. Most gang members do not have a legitimate source of income. However, where the person in question is over 18, the court can impose a custodial sentence for breach. In contrast, where the individual is under 18, the court cannot sentence him to detention in a young offender institution for breach of a civil gang injunction. For these reasons, it is highly unlikely that a gang injunction will be imposed by a court on an individual who is under 18. However, the Government acknowledge that there may be circumstances in which a gang injunction is a reasonable tool to be used against an under-18. Where a gang injunction is appropriate and enforceable, it must remain an option as a tool for reducing the harm caused by gang-related violence.
It is appropriate at this point to make it clear that we remain committed to considering whether a new tool is necessary to prevent gang-related violence resulting from the involvement of under-18s in gangs. We are in discussions with the MoJ and DCSF on that. All proposals will be carefully scrutinised to ensure that they are necessary and proportionate in their effect, while ensuring that the safeguarding of children remains a priority. On that basis, I request that Amendment 126 be withdrawn.
I quite see what the Government are trying to do here, but they must realise that it is not very easy. I will ask two questions. First, is there any practical distinction when it comes to decisions by the Crown Prosecution Service between evidence that is sufficient to satisfy a civil standard of proof and that which will satisfy a criminal standard of proof? That may seem an obvious distinction in theory, but in practice one must consider the evidence that one has, and whether the evidence that you will use for your injunction is not sufficient to bring a criminal case. The question highlights something that is more of a practical problem than has been realised.
My second point is that many gang members are under 18. When the issue was highlighted in the news in London a few months ago, almost all the gang members seemed to be under 18 and without means of support. They were not earning any money. So you cannot fine them, as the Minister and other noble Lords correctly said—but what are you going to do with them if you cannot fine them? If you cannot send them to a young offender institution either, what weapons does the court have to make the injunction effective? It is one of the great principles of injunctive relief that the court will do nothing in vain, partly because it brings justice into disrepute. I put these questions because I entirely see what the Government are trying to achieve; but before we come back to this on Report, and perhaps briefly this afternoon, will the Minister enlighten us on those two points?
The trouble is that there is a real possibility that the provisions could be used as an easy way out by police who are finding it difficult to gather sufficient evidence for the prosecution of dangerous gang members. Alternatively, injunctions could be used as an inappropriately disproportionate and extreme response to vulnerable children who need support—we have already discussed the matter this afternoon.
I know that it is dangerous for a shadow Minister to take on the JCHR—we do so at our peril. However, I agree with the Minister and my noble and learned friend Lord Lyell—I am afraid that we on these Benches cannot agree that injunctions should be applied only to over-18 year-olds. Gang violence, tragically, affects children and young adults, too; but great care must be taken to ensure that injunctions are applied only with discretion in these cases. I shall listen very carefully to what the Minister says in response to my noble and learned friend Lord Lyell and may come back should I feel it necessary.
My Lords, I agree with the questions put by my noble and learned friend Lord Lyell. The question of the enforceability of an injunction in relation to a person under 18 is of fundamental importance. With regard to the example given by the Minister of the need for one of these, it occurred to me that if the police had evidence of previous gang violence by the gang against which the injunction was to be sought, the answer would be to prosecute the gang members as rapidly as possible. I cannot think that the mere fact that it is difficult to gather evidence will help much in producing a situation that will satisfy Clause 33(2).
My Lords, the noble and learned Lord, Lord Lyell of Markyate, raised some important points. This is not an easy area—it is extremely difficult. We know from examples in Birmingham, where police have been trying to do these things, that they have found this extremely useful. The noble and learned Lord, Lord Mackay, asked why we cannot go ahead with the prosecution of people whom we know have been involved in gang activity. The answer is that often we cannot get enough evidence to make a case that will stand up—certainly not in short order. It is extremely difficult with gangs to get enough evidence. They use intimidation and have oaths of loyalty. It is absolutely right that a considerable number of gang members are under 18. However, there are particularly nasty gangs—noble Lords may remember the incident of a biker being shot on the M40—that often have members who are older than 18 and in key positions to run them. It is not just an under-18 problem—it is broader than that.
The points raised by the noble and learned Lord are good ones. I cannot answer them in detail now. If noble Lords will permit, I will come back on Report with a more complete answer on some of those complex issues. This has been thought through, but I am not for a moment underestimating how difficult and complex it is. However, that does not mean that we should not try to do it, because we have had good results from trials. On these gang issues, unusually, I have had very supportive letters from various chief constables and police forces, saying how keen they are to move down this route. I assure noble Lords that it is unusual for me to get supportive letters—normally I do not. So I believe that the measures are important and ask that the amendment be withdrawn.
My Lords, I listened with particular interest to what my noble and learned friend Lord Lyell has just said. It strikes me as very odd that we should be legislating for something that it is illegal to do—in other words, produce injunctions for those under 18. I was impressed by what the noble Baroness, Lady Miller, said about the implication of getting a civil order, which could make the police sloppy in prosecution. I suggest that the problem of gangs is nothing new. I remember my father telling me, when I was a small boy, how well Sir Percy Sillitoe had done with pre-war Glasgow gangs. By proper policing and intense detective work, the gang culture in Glasgow was dealt a very heavy blow. Surely that is the way to go—good, proper, heavy policing, getting a conviction and locking up the real nasties. That must be right, because if you do use these civil orders, it will be tempting, as the noble Baroness, Lady Miller, said, not to be as efficient as possible in your policing.
The Minister mentioned without-notice injunctions. The point about them is that the chap probably does not even know that an injunction has been made, which must be a bad way to go. He also said that something was not properly engaged—that is what I have written down here—and that the police had not got to it. What they want to do is to put an order on somebody whom they suspect is going wrong, to give them time to do the proper detective work. That surely goes against every single principle of English law, going back to the Magna Carta. You have to prove somebody guilty of a crime beyond all reasonable doubt, in trial by his peers. If we go down these slippery ways of civil injunctions, that will ultimately undermine the rule of law and the liberty of the subject. I concede that talking about the liberty of the subject when it applies to a Kray twin appears unattractive. However, it is of such fundamental importance. We should never lose sight of that ancient English liberty, because it is so good.
Having listened to what everybody has said, I shall withdraw the amendment, although I reserve the right to come back to discuss it at Report. I beg leave to withdraw the amendment.
Amendment 126 withdrawn.
127: Clause 33, page 27, line 22, leave out “on the balance of probabilities” and insert “beyond reasonable doubt”
This amendment relates to what the noble and learned Lord, Lord Lyell of Markyate, was talking about a moment ago—the standard of proof. We are saying that we should not have in the Bill,
“on the balance of probabilities”,
and that we should insert “beyond reasonable doubt”. The amendment has been proposed by both Liberty and Justice; it suggests that the court must be satisfied that the criminal standard of proof is met against the person who has either been engaged in or encouraged or assisted in gang-related violence.
The first amendment in the group addresses the standard of proof for a relevant injunction. There was the well known case of McCann in the House of Lords, in relation to anti-social behaviour orders. In that it was decided, given the seriousness of the matters involved—and with gang-related injunctions, they will be even more serious—that at least some reference to the heightened civil standard of proof, all but indistinguishable from the criminal standard, should apply. It was decided that, as a matter of pragmatism, a criminal standard of proof should be applied in ASBO cases. That is our argument here, particularly since the likelihood is that, if matters are so serious as to be gang-related, they will be a lot more serious than ASBOs. Furthermore, while ASBOs can impose only prohibitions, these gang injunctions can include mandatory requirements of indefinite duration, equivalent to or more serious than many community sentences following criminal convictions. The procedural guarantees of the criminal process, as guaranteed under Article 6.3 of the ECHR, and the criminal standard of proof should, therefore, apply. I beg to move.
The noble Baroness mentioned a list of people who support this proposal. It was also one of the issues on which the JCHR was unanimous. I draw the Minister’s attention to our report, where it says that:
“The proposed injunctions are identical to or more severe than ASBOs which require proof on the criminal standard that the individual has behaved”,
badly, et cetera. As I said on the last amendment, trial by peers and “innocent until proved guilty” are so fundamental and we must not start allowing people to be put away, which would be the end product of this provision, on the grounds of insufficient standard of proof. Let us be honest; there have been miscarriages of justice even after going through the full standard of proof and the “guilty beyond all reasonable doubt” test. It would be very wrong for us not to have “beyond all reasonable doubt” in these gang-related injunctions, if we are to have them in the first place.
I support the amendment, at least for very careful consideration. The noble Baroness reminded me of the McCann judgment. It is really a distinction without a difference here, because the criminal standard of proof and the enhanced civil standard must be so close.
We want to make this measure effective, if we are to put it on the statute book. In Clause 33(2):
“The first condition is that the court is satisfied on the balance of probabilities that the respondent has engaged in, or has encouraged or assisted, gang-related violence”.
I can see that, for the reasons that the Minister gave, it may be difficult to prove that they actually engaged in it; there may be a wall of silence. But if there is to be an injunction at all, it is likely to be possible to prove on the criminal standard of proof, leaving aside the civil standard, that they have “encouraged or assisted”. It is all very close to “aided and abetted”—the ancient words used in so many criminal statutes.
This matter demands further thought in the Home Office to come up with exactly the right formula and not to make it too weak in an area where very substantial infringements of liberty could be wrongly imposed. I believe that you can square the circle and probably achieve what you need without breaking away from the criminal standard of proof. That is what I would like the Minister to think further about.
I have listened to the debate with interest. I have always been very worried about administratively depriving people of their liberty and about control orders and things. It really depends how long these injunctions last. Society has to be able to defend itself; a huge amount of what we have erected almost goes in favour of the criminal, so we are very often powerless to stop people. You read about marauding done by feral youths in the street, and so on. It is reasonable to have new powers to try to inhibit their activities, and I do not think that we should limit them to people of a certain age because this could happen at any age. However, if we are going to lower the standards of proof, the measures must be fairly temporary, so that they are just a stop-gap to try to inhibit activity until something proper is done about it, at which point the criminal standards of proof would cut in. As long as there is a fairly short sunset on these injunctions, I tend to go in favour of what the Government propose.
There is no doubt that the Minister needs to give the Committee a great deal more information about the chosen level of proof. I do not want to be a thorn in the flesh but I must say that I am not certain that reasonable doubt is the correct level of proof. Surely if there was reasonable doubt that the respondent was engaged in gang-related violence, a full prosecution would be waged. Nevertheless, the balance of probabilities is not a high test and will bring a great number of people, many of whom may be completely innocent, into the court system, which, again, nobody wants. Can the Minister give us some examples of the sort of evidence that would be admissible and the protection that would be put in place to guard against injunctions being laid inappropriately on the grounds of hearsay or gossip? There is a distinct danger that that could happen.
For reasons that I shall explain again when we come to the debate on Clause 33, I do not agree with the proposed amendment. Evidence needs to be considered to the civil standard for a number of reasons, not least that this is a civil tool throughout, with civil procedures and civil penalties for breach. It is not like an ASBO, to which the noble Baroness, Lady Miller, referred, as ASBOs have a criminal penalty, which these do not. We carefully considered the case of McCann and the subsequent House of Lords case re B, in which it was clarified that there is only one civil standard of proof. Since it is not a criminal offence to breach an injunction, the Government are content that the situation is distinguished from that of ASBOs.
If an injunction is breached, it is contempt of court and the penalties are either a fine or imprisonment for up to two years. In the event of imprisonment, the individual does not receive a criminal record, so it is very different. In addition, with a civil standard, to which the noble Lord, Lord Skelmersdale, referred, hearsay evidence can be given by the police or a local authority so that witnesses can recall their accounts to officers or officials, who can present them in court. Again, if the standard were elevated, much of the evidence would be provided by terrified individuals, which is what one gets. It is difficult for us to realise sometimes how vulnerable those on some of these estates and roads feel, especially when they live close to and right up alongside these people who threaten them daily. They can be easily got at. One does not get that sort of information. It could be lost, leaving gang members to continue their violent ways with no intervention.
I reinforce the fact that the Government are firmly in favour of prosecuting offences where the evidence is sufficient and the public interest is such to support a prosecution under the criminal law, but we are talking about a violent gang culture in some difficult and deprived areas of this country that can lead to loss of lives. This tool enables us to protect communities through the effective prevention of serious crime by stopping someone going to a certain street. A previous speaker said that we should not be able to do that easily, but if the police know that someone is a gang member who has been involved in gang violence but have been unable to prove it, preventing that person from going to a street where he will make a revenge attack is sensible. Not least, it will stop him getting into more trouble, it will stop the chap he is trying to get at from getting shot and it might stop somebody who is in between the two of them from getting shot as well. It allows us to engage these individuals and, we hope, persuade them to change their behaviour. The civil standard of proof is intrinsic to this approach for the reasons that I have outlined and I ask that Amendment 127 be withdrawn.
I am listening carefully to the Minister about people being prevented from going to a particular street. Would it be a defence or an argument that the person’s granny lived in that street and he went to see her once a week to take her shopping? I am interested to see how this is envisaged.
In the hypothetical case that I gave, I think that you would not allow the person in the street at all. There would have to be some negotiation on mitigation if half his family lived there. But if all his previous behaviour leads one to believe that he is a violent individual and between the two gangs huge animosity has built up in which there is a culture of an eye for an eye and a tooth for a tooth—it is rather like the tribal uplands in Afghanistan, which has the same sort of flavour—for his own good, the safety of the people on the other side and the public, he should not be allowed to visit that area. Such detail will be dealt with as it comes up.
I am in a bit of a dilemma. The more the Minister talks, the more uneasy I become. He has expanded on the fact that serious gang members have been involved in violence, in which case they would certainly already be good subjects for anti-social behaviour orders. You do not need to be a member of a gang, as defined in this Bill, to drive a mother and daughter to suicide, for example, as a collection of young people did. Would they be defined as a gang, or should they have had an ASBO imposed? Unfortunately, the end result was as it was, but I am uneasy that we are proposing to put this clause on the statute book.
The Government have explained that the reason for it is dangerous and violent gangs, but the more we have thought about it this afternoon, the more we see that what most of these people—whether they were under or over 18—were engaged in should have been subject to an ASBO already. If it became even more serious, which is what the Minister is implying, surely action should be taken to prosecute. If they have not done anything criminal until this date, we are still talking about depriving people of their liberty in all sorts of ways. Severe conditions may be put on them. While I have no wish to defend a gang culture and I recognise absolutely that it makes life very difficult for people, the Government already have in their armoury a number of ways of dealing with that.
It would be useful for a group of us to get together before Report to talk through this again, because I have felt more and more uneasy since we began debating it this afternoon and now feel less and less reassured of the need for the measure at all, let alone the safeguards that we are proposing. In that spirit, I beg leave to withdraw the amendment.
Amendment 127 withdrawn.
128: Clause 33, page 27, line 26, leave out “for either or both of the following purposes”
I shall also speak to Amendment 129. We have just been considering the first condition for imposing one of these injunctions in subsection (2). The combined effect of these two amendments is to subsection (3), to ensure that an injunction cannot be granted simply to protect the respondent from gang-related violence.
We do not believe that adults, except in the mental health or mental capacity context, should be subject to compulsory protective interventions of this kind. Let us look at what the person can be asked to do in Clause 34. Under subsection (3)(a), the applicant can know where the respondent lives and whether they move. Under paragraph (b), the respondent can be forced to be at a particular place at a particular time on a particular day and, under paragraph (c), the respondent must present himself to a particular person on that particular day. Also, under paragraph (d), the respondent can be forced to take part in a particular activity.
All those things are a restriction on the person’s freedom, but it is also suggested that they could be done to protect that person from gang-related violence. It is inconceivable that an adult—a free citizen of this country—should be forced to do any of those things for their own protection. They may very well wish to do them if they feel threatened by a gang, but we on these Benches do not believe that they should be forced to do them.
Nor am I clear from the Minister’s remarks whether these injunctions, in particular under subsection (3), would apply to under-18s. If they are to apply to children, I believe that there will be considerable difficulties of enforcement, particularly if the injunction is breached. There are much better ways of protecting children than submitting them to an injunction of this kind. Will the Minister therefore be very clear about whether it is the Government’s intention that these injunctions, and any part of Clause 33, will be applied to under-18s? I beg to move.
My Lords, again, the noble Baronesses—perhaps for the purposes of this series of debates I can join them together as heavenly twins—have raised some important questions. These injunctions are unusual for two reasons: first, they carry the possibility of imposing positive requirements rather than just restrictions, which is what I look at as normal injunctions and which we will discuss in a later group; and, secondly, there is the potential use of an injunction to protect someone from harm.
The idea that a person’s activities can be restricted for their own safety is extremely unusual and not one that we should accept easily. In what circumstances will this occur? Will there have to be any indication that non-gang members might be hurt before an injunction is used for this purpose, or will one be imposed at the first indication that any incident is being planned?
I am particularly concerned about the possibility that a respondent may fulfil the requirement in subsection (3)(b), which protects him from gang-related violence, but not subsection (3)(a), which prevents him from engaging in or encouraging or assisting gang-related violence.
I note that subsection (4) provides that the injunction could be for either or both these purposes, but surely subsection (3)(b) almost encompasses subsection (3)(a), does it not? I can understand Ministers’ desire to prevent someone from taking an ongoing gang-related dispute to a public place, but that would surely be met by paragraph (a). I am less sympathetic to the idea that these injunctions will be used essentially to force someone to accept police protection, which is what I believe they really amount to. I hope that the Minister will give an explanation on that point.
My Lords, I have to concede that it is unusual for an injunction to be used in this way. We believe that there are situations in which taking such action is necessary and proportionate to prevent gang-related violence and to protect the individuals and the communities involved. If we take, for example, a situation where police intelligence suggests that a certain individual is at serious risk of a retaliation shooting by 40 members of the Hell’s Whatsit gang, or whatever it is, an applicant authority could apply for an injunction to protect the respondent from harm by limiting where he goes and who he may contact. That is easier—
My Lords, the noble Baroness has been kind in intervening with that question because it allows me to go to a specific case. We do have individuals who seem to be stupid enough to do this. The case is of a youngster who was shot in the leg in 2007. He went back to the same area and, luckily, threatened a PCSO, so he was able to be taken into custody and charged. Immediately, however, bail conditions restricting him from going to the place where he was likely to be shot at were removed and he went back there for the same thing to happen again. It seems inconceivable to us, but I am afraid that this is a specific example of someone who has done just that—gone back.
You could say, “What an idiot. It serves him right if he’s shot”, although I think that that is a bit of a hard line. But we know from bitter experience that a youngster going home from football, for instance, will pedal his bicycle between those committing violent behaviour and be killed. We should not put up with that, which is why we have drafted this provision. I know that such an example seems extraordinary—I find it amazing, too—but it is the case. Although we could say, “Well, if he wants to do harm to himself, good luck to him”, I am afraid that more is involved and it is not right to allow him to do that. By preventing that individual from going into an area where he faces risk, the provision will have achieved its purpose in protecting the public and him. Furthermore, where intelligence suggests that a particular member of a gang of, say, 40 is at risk of retaliatory attack, it makes practical sense to go for that one member rather than the 40 who are likely to mount the attack.
This provision also includes many positive elements such as mentoring, training and education. We are aware of the need to ensure adequate safeguards, so we will bear in mind the nature and requirement of the prohibition’s duration. There is a right to appeal and express provision has been made to allow applications for discharge or a variation of the injunction. That goes back to the point made by the noble Baroness, Lady Stern, about someone having his family around him. I therefore believe that the positive elements of a gang injunction regime are important in this aspect, too. I probably have another example, but I am afraid that there are people who behave in extraordinary ways. On that basis, I hope that the amendment will be withdrawn.
This is not an area of which I have enormous knowledge. There are Members present in the Committee who have much more. However, in my ignorance, I would have thought that the police had systems for protecting people who were in danger and that it did not require a new law, an injunction and a court process to prove something beyond reasonable doubt. I understand that witnesses are protected and I assume that the police will see it as part of their duty to protect people who they know from information are in danger. Therefore, I ask the Minister again to reflect on how necessary this extremely strange provision is.
My Lords, it is extremely difficult for the police to do that. I return to the example that I gave earlier. Because the young man was arrested, having threatened to shoot a PCSO, it was possible to impose bail conditions excluding him from the area of the gangs who kept shooting him and whom he was trying to shoot. When that case went to court, he was found guilty and the exclusion and curfew were not part of the sentencing order. Therefore, with no bail conditions, there was no reason why he could not return and he did exactly that. It is difficult for the police to protect people who do not want to be protected. Of course, by returning to the area there can be an exchange of gunfire, which will affect the public.
My Lords, I thank the Minister for his reply. My former pupils occasionally used to say, “Miss, you’re a hard woman”. I may be a hard woman but I do not think that I am as hard as to say that someone as stupid as the person whom the Minister described deserves all he gets. I remind the noble Lord that sad cases make bad law.
The Minister is talking about a couple of very rare situations. I should not have thought that such a few cases justified overriding the principle that you do not in any way restrict the liberty of a fully competent adult who has not done anything wrong simply to protect him and for no other reason, especially given, as the noble Baroness, Lady Stern, has just reminded us, that the police have a whole spectrum of measures to protect witnesses. If someone is on bail, I am sure that certain conditions could be applied without the need for overriding the principle that a fully competent adult should not be restricted simply to protect them.
I accept that what the Minister tells me about the particular case is true—I have no reason to doubt it—but I do not believe that a very few cases of that nature are sufficiently serious to override that important principle. That is why my noble friend and I have laid the amendments. We will consider what the noble Lord has said and see whether we can find any more hard cases of that nature—he may wish to write to me if he has a whole file full of them, but I am not sure that I would be convinced even then. For the moment, I beg leave to withdraw the amendment.
Amendment 128 withdrawn.
Amendments 129 to 131 not moved.
132: Clause 33, page 27, line 30, at beginning insert “Subject to section 34,”
My Lords, these two amendments would amend Clause 33(4) and Clause 34 to ensure that an injunction may only be made subject to Clause 34, which sets out a list of prohibitions and requirements. They would also remove Clause 34(6), which makes clear that the provisions are intended to be a non-exhaustive list of prohibitions and requirements. We are uneasy that the court should be allowed to require or prohibit anything as long as it falls within the purpose of Clause 33. We are interested to hear from the Minister just how wide he thinks the list should be. It would be helpful if he were to give some examples. I beg to move.
My Lords, the noble Baroness is not alone. Like her, I read the current wording to allow the injunction to do anything at all, with Clause 34 being in the way of an example, rather than a restrictive list. Can the Minister explain whether we are right and, if so, why on earth the Government are doing that? What other possible restrictions or requirements might be imposed? The list in Clause 34 is already enormously vague, covering all sorts of aspects of a respondent's life, from their pets to their clothing. Surely to goodness that flexibility is quite sufficient for the purposes.
Noble Lords will be aware that Clause 33(4) sets out that a court may prohibit a respondent from doing anything, or require the respondent to do anything. I am aware that noble Lords have concerns about those provisions. However, I should make clear that in placing any prohibitions or requirements on a respondent, the court must be satisfied that the prohibitions or requirements are necessary to prevent gang-related violence as per subsection (3). It safeguards against the ordering of measures that are simply punitive and without true purpose.
Clause 34 gives examples of effects that prohibitions or requirements could have, and therefore that a court could consider, including effectively to prevent gang-related violence. The list is non-exhaustive to allow maximum flexibility to the courts and police to tailor the provisions to the individual circumstances of each respondent and thereby maximise the effectiveness of the injunctions in protecting the individuals and the public.
Amendments 132 and 138, when combined with other amendments tabled by the noble Baroness, would turn Clause 34 into an exhaustive list of prohibitions, instead of an open list of both prohibitions and requirements. The purpose of that appears to be to give a greater degree of certainty to the respondent and to limit the powers of the court. However, that would severely damage the flexibility of the injunction, which is a key aspect of its effectiveness.
Gang culture is a modern problem that appears to be changing and evolving all the time. The courts need the flexibility to evolve with the problem, and we do not want to restrict their ability to tackle these issues on an individual and case-by-case basis. I draw noble Lords’ attention to Clause 34(2)(c), to which the noble Lord, Lord Skelmersdale, referred, which makes reference to animals. That demonstrates what I am talking about. Five years ago, it would not have crossed our mind to include such a provision. However, we have seen a steady and exponential rise in the number of gang members using particularly vicious dogs to intimidate and to perpetrate violence. If that subsection were not included in an exhaustive list—and it would not have been before now, because we would not have thought of it—the court would be powerless to make provision in that respect.
The problem of gang violence will continue to change and evolve, as it does all the time, because it ties in with culture. There will be new trends that the Government cannot foresee. We believe that the provisions need to be able to keep up with the changing profile of gangs.
I recognise the concerns that lie behind th