Policing and Crime Bill

Public Bill Committee, 12 February 2009.

Nicholas Winterton (Conservative, Macclesfield)

I welcome all hon. Members who have arrived so far to this sitting of the Committee. It is at the moment a lovely day; I hope that it remains just like that. Before we begin, it might be for the benefit of hon. Members if I clarify the arrangements for tabling amendments in the forthcoming brief recess. To be selectable for the sitting on Tuesday 24 February, amendments must be tabled by 4.30 pm on Thursday 19 February. Thereafter, normal deadlines will apply.

Vernon Coaker (Labour, Gedling)

On a point of order, Sir Nicholas. I have been asked by the president of the Association of Chief Police Officers, Sir Ken Jones, to bring to the attention of all Committee members a letter that he has sent, which deals with some of the points raised in respect of ACPO. No doubt Committee members will have seen that and will read it, but he asked me to point that out.

Nicholas Winterton (Conservative, Macclesfield)

The Minister said what he needed to say before I had had time to consider whether it was a point of order or not. In fact, it was not; it was a point of information, but I am sure that the Chair and members of the Committee are grateful to him. In case I forget to say this at the end of the sitting, I shall say now that I hope that all hon. Members have a restful and enjoyable recess with their families.

Clause 27

James Brokenshire (Conservative, Hornchurch)

Thank you, Sir Nicholas. I reciprocate by offering you the best wishes of the Committee for a restful and recuperative recess next week.

Clause 27 amends section 147A of the Licensing Act 2003 relating to the offence of persistently selling alcohol to children. That section states:

“A person is guilty of an offence if...on 3 or more different occasions within a period of 3 consecutive months alcohol is unlawfully sold on the same premises to an individual aged under 18”.

That is punishable by a fine of up to £10,000 or, as an alternative remedy, an immediate closure notice can be sought under section 169A of the 2003 Act for a period of up to 48 hours.

Section 147A was inserted into the 2003 Act by the Violent Crime Reduction Act 2006 and has been in force for only about 18 months. Indeed, the provision is so new that data on prosecutions will not be available until this autumn, so we have no real feel for how widely used the power is before the change proposed in this Bill to reduce the qualification for persistence from three to two occasions.

The position is clouded further, as the Association of Convenience Stores notes in its submission to the Committee. It states:

“There is no evidence that the current offence is not effective and”—

this is interesting—

“the Home Office Toolkit cautions against using this power, suggesting enforcement authorities should instead pursue a review of the licence.”

I should be grateful if the Minister clarified whether the toolkit states what the ACS says, because clearly that is a relevant factor in our consideration of the clause, which changes a previous provision. If it does say that, I should be grateful to know why it does and whether, in the light of the change in the Bill, the Minister is considering a change in the language in the toolkit, given that it seems to suggest that enforcement authorities take a different route, a different option, from the power envisaged under section 147A.

As I said, the provision has been in force for a relatively short time. We have no specific data on it; we seem to have no prosecution data at the moment, as it is too new. However, from the frequent discussions that he has with the police and other law enforcement agencies, can the Minister say what the experience of using this power has been on the ground to explain why this change is proposed? The change implies that the provision is not working in some way, that something has changed or that the Government believe that a different emphasis is required.

Will the Minister give some background on the thinking behind this decision? Given that we are talking about only 18 months, is the change to section 147A an admission that the Government were wrong in the first place and that they should have gone for two rather than three occasions when the power was introduced? This rapid change of heart is re-emphasised on considering that the change in approach reflected in the clause was first telegraphed in June last year in the “Youth Alcohol Action Plan”, just a year after the power was brought into effect. Will he explain why “persistent” was taken to mean three occasions when the offence was introduced and what evidence there is to necessitate the change? If not, will he confirm that a mistake was made in the Government’s thinking when the power was introduced?

I want it to be made clear that this provision will operate equally for all licensees. I am sure that the Minister will confirm that it is intended that the provision be applied to small shops and huge hypermarkets equally. All premises should be treated the same in triggering the two occasions required for persistence. The Bill makes that clear but I want to clarify whether the Home Office envisages giving further guidance or clarification on enforcement. That is an important point. The provision will put greater pressure on larger retailers in ensuring that their systems and procedures are in place, simply because of the volume and nature of their sales. The number of transactions that go through their tills will mean a large number of potential under-age sales may be attempted at their premises. It would be helpful to clarify whether the Home Office, ACPO or any other agency proposes to issue guidance on enforcement when the provision is introduced. If so, what does the Minister expect the guidance to say?

Paul Holmes (Liberal Democrat, Chesterfield)

I agree in principle with the intention of the clause. Off-trade retailers will always argue that young people, especially young girls, often look older than they are, that it is difficult to establish age and that it is unfair to penalise them for selling by mistake. That argument wears thin these days.

Many pubs and other on-premises and some off-premises voluntarily run the effective 21-and-under scheme. That involves clear labelling saying that people who look under 21 will be asked to prove that they are 18. Recently, when buying some drinks at a pub in Chesterfield, I was asked whether my son, who is 20 and in his second year at university, was old enough. How can anyone object to that? Alcohol is a dangerous drug.

That point relates to another topic that has been discussed in the Palace of Westminster this week; alcohol kills far more people than ecstasy. It causes far more violence on the streets of this country and far more crime. When out on patrol with police, they say that alcohol is undoubtedly the No. 1 drug misuse issue that they face. We are discussing off-premises, but whether in the on-trade or off-trade, people are selling a dangerous drug, although it is legal and can be sold under various licences. I therefore welcome the principle of the clause.

I am sure that every MP in the room today could give an example from their constituency of premises where the police will say that it is not just that some under-age people occasionally get to buy alcohol there, but that the person running the premises is making a lot of money out of deliberately selling it to under-age kids. We can all name a hotspot like that, and if local residents complain to the police they say, “Yes we know, it’s under observation and we are trying to collect the evidence.” However, the business of getting three consecutive proofs of selling to under-age children can be an obstacle. I know that that is why the police favour this move. Can the Minister confirm whether that is the thinking behind it?

I very much agree with the principle behind the clause, but how effective will it be? I asked in a parliamentary question about the effectiveness of using earlier legislation in this respect. I asked how many establishments had been prosecuted for selling alcohol to under-age people. The figures showed an interesting trend. In 2003 there were 616 prosecutions. They rose to 1,084 in 2005 and by 2007 had dropped back to 693. It would be interesting to get the Minister’s comments on the reason for that particular trend and what that tells us about the new legislation and clause 27. Can he say what lessons we are learning from previous practice, why there was a big increase in prosecutions and then a big drop. Is the reason behind clause 27 that we are trying to get around those problems?

Finally, Alcohol Concern has noted that there is no register of licensees, so if an individual who loses their licence, or is convicted in this way goes to another part of the country, to another local authority area, they will not automatically be picked up. Is there a clear central register or a provision for establishing one, so that it can be known all around the country when someone has previous convictions?

Alan Campbell (Labour, Tynemouth)

Good morning, Sir Nicholas. One always deeply regrets, when going into an establishment where there is a challenge 21 or challenge 25 sign, that one is too old to be challenged. I want to put on record our support for the challenge 21 initiative and those who have gone further with challenge 25. It forms an important part of the work of retailers and publicans and we want to see it extended as far as possible.

Clause 27 amends the offence of persistently selling alcohol to children from three strikes, to two strikes within three months. The purpose is to reduce the number of times that alcohol is illegally sold to children by increasing the likelihood of being prosecuted if caught selling. A number of questions have been posed with regard to this. First, the hon. Member for Hornchurch is right that the prosecution figures for 2008 are not yet available. However, the pattern to which the hon. Member for Chesterfield referred showed a reduced number of prosecutions between 2006-07, but an increased number of penalty notices being issued, reflecting the flexibility that police officers would have in a circumstance where they might want to use penalty notices where someone was selling to under-age children. That could also reflect the purpose of the clause, which is to say that test purchasing operations can have an effect in areas and retailers can put right the wrongs that they have been doing. That might be reflected, but nevertheless, there is still a persistent problem in some areas, and addressing that is the purpose of the clause.

James Brokenshire (Conservative, Hornchurch)

How does the Minister envisage enforcement operating? He has identified the issue of penalty notices for disorder being applied in relation to under-age sales and the approach that is taken there. That is understood and I understand the arguments about ease of enforcement at times. Does he think that that would be an appropriate remedy in relation to clause 27? It addresses more serious events because of the escalation and the persistence that is involved, but does he envisage that penalty notices for disorder would be issued in respect of this offence? How does he see that operating in practice?

Alan Campbell (Labour, Tynemouth)

This is about tightening the current system. As the hon. Member for Hornchurch says, there is a system of escalation, but the purpose of the clause is to escalate that system more quickly where premises are persistently selling alcohol to under-age children. That is something that the Local Government Association and the police have welcomed. It goes back to a theme that we have already touched on in this section of the Bill, which is not only about giving powers to the police and the trading standards authority but giving police officers the flexibility to decide on the most appropriate approach in different circumstances. If a shop is not heeding warnings and test purchasing operations, and not learning from them, we want to make it easier to escalate the response more quickly, which is why we are reducing the offence from three strikes in three months to two strikes in three months.

The hon. Gentleman made a point about earlier legislation and in response I would say that the situation is always moving on. This particular offence was introduced after the review of the Licensing Act that took place in March 2008. That review said a number of things about licensing and it reaffirmed the need to crack down on under-age sales. It also said that there was still a problem in some areas and in some communities. If we are to send out the strongest possible signal that selling alcohol to children under 18 will not be tolerated, this is an appropriate way to do it.

We also carried out a tackling under-age sales of alcohol campaign that demonstrated that those were the worst areas, although I accept the point made in the oral evidence sessions. Nevertheless, I envisage the legislation being enacted in those worst areas, and it is in those problem areas that we need to send the strongest and swiftest message. The message that came out of the tackling under-age sales of alcohol campaign was that despite test purchasing and warnings, and police and trading standards activity, some premises continued to sell alcohol to under-age children. Not only is that wrong in itself but it can lead to alcohol-related disorder in a particular area.

The hon. Gentleman talked about the toolkit and the guidance in it. The toolkit does not caution against the use of prosecution, but it shows that targeted test purchasing enforcement, and a co-operative approach between the police and the trading standards and licensing authorities, can be effective in tackling under-age sales. We listened very carefully to the experiences of the trading standards authority and the police, who broadly support what we are doing.

James Brokenshire (Conservative, Hornchurch)

I have listened carefully to the Minister and I agree that we need very firm and strong powers to control under-age sales of alcohol to ensure that the systems are upgraded and the irresponsible retailers who sell alcohol to those who are under age are dealt with very firmly.

I queried whether the toolkit seeks to adopt the review of a licence approach rather than a prosecution-type approach. That was the point that was being made. The advice was that in such circumstances a review was more appropriate than using the section 147A power. Will the Minister reflect upon that in the light of the points that he has made about sending out signals? It seems to me that that is not necessarily using the power in the way that he perhaps intended in respect of sending out that clear signal to those who persistently—this is the point—sell alcohol in that way.

Alan Campbell (Labour, Tynemouth)

I will certainly reflect on that. However, the guidance does not suggest that prosecution is not an appropriate early response—it could be appropriate, but it depends on the circumstances that the police and trading standards officers find. The system must be flexible: it must not make assumptions or have in place one track for every circumstance, otherwise people will say, “That is a disproportionate response in some areas, but insufficient in others.” It really depends on the circumstances.

The hon. Gentleman asked whether all sales establishments will be treated the same and whether renewed guidance will be produced. The fundamental offence will not be altered by the Bill, which simply puts in place a tightening-up mechanism. At this stage, therefore, the guidance does not need to be renewed, but I may consider his point in the future. On the first question, under-age sales is both an on and off-sales issue. We must send out that message very clearly. On-sales people tell me that it is not their problem, but I get the same message from off-sales people too. It is their, and indeed everyone’s, problem, and it is important that the law is applied equally.

We work very carefully with large retailers, where sometimes it is easier to enforce the provisions. However, we also work closely with, and listen carefully to the concerns of small retailers, and we take into account the fact that one might be the only shop on an estate and that they might therefore feel under pressure on under-age sales. That is not an excuse, however, but an enforcement issue. In such circumstances, retailers and the police need to work closely with each other.

James Brokenshire (Conservative, Hornchurch)

Does the Minister recognise that some retailers are under pressure as a result of the abuse, violence, threats and intimidation meted out to their staff and themselves? We need to ensure firm enforcement of the law on selling to under-age people and, equally, to protect retailers and shopkeepers putting up with unacceptable behaviour and threats when upholding the law.

Alan Campbell (Labour, Tynemouth)

We agree entirely. The latter point is a police matter that I have discussed with retailers and the police. Everyone recognises that it is an enforcement matter. Such intimidation might explain why retailers feel under pressure to sell to under-age people, or to those who then pass on the alcohol to them, but it does not excuse it—the law is the law. However, I understand the hon. Gentleman’s point about enforcement. We agree on that, so I hope that we can agree on clause 27 too.

Clause 29

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 35, in clause 29, page 22, line 33, leave out ‘reasonable excuse’ and insert

‘the permission of his or her parent or guardian’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: amendment 86, in clause 29, page 22, line 34, leave out from ‘place’ to end of line 35 and insert

‘and in doing so is in breach of a current acceptable behaviour contract which has been signed by that person’.

Amendment 242, in clause 29, page 22, line 35, at end insert

‘and in doing so is in breach of a current Acceptable Behaviour Contract which has been signed by that person.’.

James Brokenshire (Conservative, Hornchurch)

Clause 29 creates a new offence of persistently possessing alcohol in a public place without a “reasonable excuse” where the person is under the age of 18. Amendments 35 and 86, in my name and that of my hon. Friend the Member for Bury St. Edmunds, are designed to test the scope, application and purpose of the new offence, and how enforceable it is likely to be.

It would be helpful to get a clear understanding of what the Government mean by the concept of “reasonable excuse”. The Minister will remember that I asked one of the police officers giving evidence to us what he understood by that concept. Obviously, it may apply in other circumstances: the most obvious might be the possession of a knife in a public place without a reasonable excuse. The concept is understood there. However, the situation dealt with by the clause is different, and some clarification of the scope and intention of those words would be helpful in understanding the Government’s approach.

Equally, we must ensure that the clause, if enacted, is enforceable, robust and clearly understood by police officers, prosecution authorities and the community as a whole. It seems to have been based on the concept of possession of an offensive weapon in a public place, so that an offence is committed unless there is a justifiable reason for having the item on one’s person. In some ways, that requirement for a defence is understandable in the context of offensive weapons. To take knives as an example, a chef travelling between work and home might have to take the tools of the trade with him, and that might be a reasonable excuse. I understand the concept; but it would be interesting to know what the Minister would consider a reasonable excuse under the clause.

I understand and appreciate the problems that many communities have with some teenagers drinking in public places and leaving bottles strewn all over the place. Parks and play areas spring to my mind, given the situations that I have had to deal with. Leading on from that, there is potential for antisocial behaviour and crime to result from excessive alcohol consumption. The question is whether the concept of reasonable excuse will in those circumstances deal with the issue as the Government think it will.

At the moment the law on the consumption of alcohol by children is that it is illegal to give an alcoholic drink to a child under five, except under medical supervision in an emergency. However, the law is not prescriptive on consumption per se for children over five. The Confiscation of Alcohol (Young Persons) Act 1997 provides the police with a power to require the surrender of intoxicating liquor, and the Licensing Act 2003 places restrictions banning sales of alcohol to anyone under 18, while at the same time permitting the consumption of alcohol on licensed premises by 16 and 17-year-olds if they are consuming food and are with an adult.

The Government’s “Youth Alcohol Action Plan” notes:

“The current law allows anyone over the age of 5 to consume alcohol and in practice this is a matter for parents to decide.”

The starting point under the clause is that possession of alcohol and therefore, by extension, the consumption of alcohol in a public place, by someone under 18, will potentially trigger liability if repeated, unless a reasonable excuse can be provided. Therefore—it would be perverse if this were not the case—notwithstanding that it has not to my knowledge otherwise been an offence, the consumption of alcohol by someone under 18 cannot be considered to be a reasonable excuse per se, should it happen in a public space. If I have misunderstood the clause I am sure that the Minister will return to that point.

It seems to me that by extension consumption goes with possession, because obviously a person must possess alcohol in the first place to consume it; one follows the other. Following that logic, if a 16 or 17-year-old was in a park with their parents having some food, and that was repeated on three occasions, they would potentially be committing an offence, although if the same actions took place on licensed premises they would not constitute an offence. The point that I am trying to understand comes back again to what would be considered a reasonable excuse. Would it be a reasonable excuse to apply the argument about what happens in licensed premises, in contrast to what might happen in a public space?

Sally Keeble (Labour, Northampton North)

My reading of the clause is that it relates to possession; so it is like dealing with possession of an offensive weapon. As an example, I once saw the trial of a Rasta for having a stick which could be either a religious object or an offensive weapon. The offence was not using it but having it. In just the same way, a kid could be walking along with several cans of lager, and the issue would be whether he had them with fair reason—perhaps because he was going to a party—or whether he was going to drink them all in a park and cause havoc. The possession is the thing; not the consumption.

James Brokenshire (Conservative, Hornchurch)

I agree with the hon. Lady. Whether vessels containing alcohol have been open or closed has been an issue and a distinction for the police in the past, as has whether there was a right of confiscation in such circumstances. In some ways, the clause is intended to cover that. However, it could extend to the situation on licensed premises as contrasted with the one in which those self-same actions took place in a park or a public open space. The young person would be in possession of alcohol, albeit that they happen to be consuming it at the same time. I am probably implying that such a distinction might not be correct, although I am sure that the Minister will correct me if I have misunderstood the position. However, consumption implies that people have possession of alcohol, so would that not equally be covered under the clause? Perhaps the definition of “reasonable excuse” is a defence in those circumstances. A lot turns on that language, which is why we tabled the amendment with the concept of without

“the permission of his or her parent”.

I accept that the amendment is not necessarily perfect and that it has been tabled for testing purposes more than anything else, but it would clarify the intention behind the words and the real scope of the clause. I am not sure whether the Government’s meaning of the provision is the same as the intention behind amendment 35 and whether they mean that being in possession of alcohol must be under the supervision of the parent or guardian or whether it is considered directly or indirectly, through guidance or otherwise, that the concept of “reasonable excuse” would cover that situation. It would be interesting to hear what the Minister thinks.

A balance clearly needs to be struck between the needs of a community with antisocial behaviour problems, and the roles of the state and parents. The “Youth Alcohol Action Plan” envisages that, in many respects, parents have a fundamental role. That is absolutely right, given the relationship, but equally I recognise that, sadly, some parents are irresponsible, which is the reason behind my comments about supervision. I should like to understand the Government’s intentions more clearly in respect of the provision.

According to research on the source of alcohol consumed by 11 to 15-year-olds who drank 14 or more units in the previous week, 48 per cent. claimed to have been given alcohol directly by their parents, while 42 per cent. claimed to have taken it without their parents’ consent. Sadly, situations can occur when parents turn a blind eye. It could be a matter of the kids going out in the evening and parents not wanting them in the house and willing to turn a blind eye if they take a bottle or two, or some cans, out of the garage. Such “out of sight, out of mind” experiences have been expressed to me by the police and others when the concept of what their children should be consuming in terms of alcohol is perhaps not always considered as carefully and closely as it should be.

On my outings with the police, I have experienced situations in which a child in possession of alcohol has been found in a public place or park. The alcohol is taken away and the child is returned to the home. Even then, just two minutes later, the parent lets the child straight back out again as if nothing had happened. There is a need to look at enforcement and child protection issues, and how we can demonstrate and promote greater thought and encourage parents to behave responsibly when undertaking their role and duty in such matters.

Does the current language of the clause properly encapsulate that balance? Can the Minister also provide some examples of what would and would not be considered as a “reasonable excuse” for the purposes of the clause? How would that be applied in practice, given that many of the cases are likely to be dealt with summarily, without going anywhere near a court? Clearly, therefore, arguments that might be applied are saying that we need to test what the case law is and to follow through on the definition and how it might be interpreted by the courts. That is something that will be at the forefront right at the outset, given that in a lot of cases it would be the sort of offence to be dealt with summarily, rather than necessarily going to the courts in the first instance.

Amendment 86 addresses a slightly different issue. The proposals outlined in the clause were first trailed in the Government’s “Youth Alcohol Action Plan”, published in June 2008, which said, in the case of persistent public drinking by young people, that:

“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.”

As I said in my previous comments, that balance is absolutely right. The linkage with parents is needed, and that greater sense of responsibility. The Government said that it would be bringing forward legislation on persistent drinking, stating that it 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”

acceptable behaviour contract.

“The penalties applied will depend on the nature of the behaviour in question, whilst taking into account the young person’s previous criminal record.”

That wording is reflected equally in the regulatory impact assessment that sits alongside the clause.

Despite that, clause 29 does not seem to follow the stated policy objection in a number of ways. It does not require breach of an acceptable behaviour contract—it is a simple “three strikes and you’re nicked” test. Secondly, the penalty applied is simply a fine of up to £250. 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 breach of an acceptable behaviour order? That is certainly more understandable in the context of the wider policy intention of giving a role to the parents and family in the welfare of their child.

Amendment 86, therefore, seeks to introduce the concept of a breach of an acceptable behaviour contract to give effect to the Government’s previously stated intention, albeit that the Minister may be saying that that was not the intention. He may wish to give the police the greater flexibility, notwithstanding what was stated in the policy document and the regulatory impact assessment, and envisage that there should not be the fourth trigger of an acceptable behaviour contract being breached.

It is important that we understand how the provision is intended to operate, given what I said about the need for greater parental responsibility and linking in that relationship between the child and their parent or guardian, where they have one. Is it simply a straightforward enforcement test based on three occasions of persistent possession, or does the Minister envisage that there would be the additional step of escalation, with an acceptable behaviour contract having been issued at some stage during that process, or after that third occasion? How would that operate in practice, given the appropriate and understandable intention stated in the policy document, which obviously is not fully reflected in the clause before us?

Sally Keeble (Labour, Northampton North)

It is a great pleasure to be here, Sir Nicholas, particularly dealing with the alcohol clause, which I am interested in. I listened carefully to the hon. Member for Hornchurch moving his amendment, because there are some important issues around the points he raised and around how the clause operates.

The clause is one of those that is key to the whole operation of the Bill, because it deals with one of the real mischiefs of alcohol, which is what young people do with alcohol, how they consume it and the resulting public nuisance. It was either on Second Reading or earlier in the Committee stage that I referred to the problem of young people drinking in parks. Research shows that such drinkers tend to be aged between 11 and 15. Presumably, they drink in public places because they cannot go into pubs to drink. As the hon. Gentleman said, we have all had to deal with the problem of young people drinking in public, and experienced the distress that it can cause. My own interest in binge drinking—apart from having to deal with a death following a happy hours promotion and antisocial behaviour in the town centre—stems from seeing young people drinking in a park in the Moulton Leys area of my constituency and causing distress to people living in the area. Therefore, this is a key clause.

It is important that the provisions are workable and designed to deal with the public mischief. We should not get into the realms of acceptable behaviour contracts, which are also very important, because they provide a different sequence of events to deal with some different patterns of behaviour. Oddly, the hon. Gentleman’s second proposal—I am sure that he does not mean to do this—makes the provisions less enforceable. The Liberal Democrats’ proposal make them less enforceable as well, but I suspect that that is what they intended. Oddly, therefore, both sets of provisions would have the same result.

I have discussed the issue of “reasonable excuse” with my local police officers because it is important that the provision is workable. It is right that the provision relates to “possession” and calls for “reasonable excuse”. Although the hon. Gentleman’s amendment was a probing one, we must consider the group about which we are talking. It often comprises young people under 18 who, if they are living at home, have very slight parental or guardian control. The hon. Gentleman referred to that, but we are dealing with young people on the street, and not parental issues.

The provision also deals with young people who might have a perfectly good reason for having alcohol in a public place, and they might not have parents or guardians because they have left home. For example, they could be in the armed services. They could be walking along the road with some alcohol because they are celebrating exam results, which is a perfectly reasonable excuse for a young person to be carrying a bottle of champagne or a can of lager. They could be buying alcohol to wet the head of a newborn baby, which is a perfectly reasonable excuse for a young person to be walking along a road with large amounts of alcohol. Those are perfectly reasonable excuses, and I think that everyone would accept them.

James Brokenshire (Conservative, Hornchurch)

The hon. Lady makes some reasonable points and highlights some specific examples of what might be considered reasonable. Does she share my concern about the way in which the clause is currently drawn? Any judgment that a police officer may reach with regard to such an offence will potentially be quite subjective.

Sally Keeble (Labour, Northampton North)

Yes, that is an important point. I mentioned wetting the head of a newborn baby. I am sure that the hon. Gentleman can understand that someone might feel that it is not appropriate to be required to have the permission of the grandparents to hold a bottle of champagne or a can of beer to celebrate the birth of the baby. I know that the amendment is a probing one, but I feel that using the words “reasonable excuse” is the right way to go. The hon. Gentleman is also right that there could be a degree of subjectivity about the judgment. Perhaps I will deal with that issue further on when I deal with the way in which the whole clause is implemented. Obviously, when police have to use their judgment, we want to ensure that the judgments are consistent and are not applied differently to different groups of young people. Now that we have police community support officers, perhaps there will be more engagement between the people on the streets and the officers who make up the law and order community.

The hon. Gentleman’s proposal, outlined in amendment 86, means that for the tests that people have to jump through, instead of putting in the three or more occasions in the 12 consecutive months, we put in the ASBO part—the old acceptable behaviour contract. It seems that would mean that either the police would have to know that the kid had such a contract, and therefore would be able to be nicked for the particular offence, or having seen the kid out on the streets a good number of times, carrying alcohol and being up to no good, the police would go off to get a contract. That would spin the process out quite considerably.

Since acceptable behaviour contracts—I believe—have to be initiated by local authorities, instead of the police dealing with them and managing them, as they will be able to do under the clause, they would have to get a contract from the local authority, which could take a long time. Some local authorities are not very good at it—I have a Liberal Democrat local council, and if I had to choose between the efficiency of my local police officers in negotiating with young people on the streets, and that of the council in getting a contract, I am absolutely clear about who I would prefer to be responsible for getting the piece of legislation in place—it is as simple as that.

James Brokenshire (Conservative, Hornchurch)

Again, the hon. Lady makes some interesting observations regarding the operation of acceptable behaviour contracts. The only point I put back to her is that the suggestion is not mine—it is the Government’s suggestion in their policy document, the “Youth Alcohol Action Plan”—so her comments on my amendments, which are to test our understanding of what the Government said, are very relevant, and I am sure that the Minister is listening carefully.

Sally Keeble (Labour, Northampton North)

I am glad that we are taking the current road regarding the clause. I have always supported—and still do—strong and practical law and order measures that can be implemented.

Amendment 242, which suggests that there must be both the three or more occasions in 12 consecutive months and the acceptable behaviour contract, would set too high a threshold, and would make the measure virtually unworkable. Having talked to my local police force about the measure, it seems that in the way that we have it now, the enforcement of the clause will depend greatly on the judgment of police officers and their knowledge of local people in the community.

Returning to the dynamics of the process, when a crime is committed, I always think, “Surprise, surprise” that there could really be no prior knowledge of who the criminal might be. Obviously, that is completely wrong. In my constituency several years ago, on an estate that had a high crime rate, the community studied the antisocial behaviour and crime. It found that on the estate, which had a crime rate approaching Toxteth levels, a quarter of all crimes were committed by five members—all children, I think—of one family. The terms of the clause imply the ability to track what is happening and that conforms to the pattern of police awareness about who in the community is being a nuisance—I was about to use unparliamentary language, but I am sure that you would have intervened, Sir Nicholas.

The police know which children or young people—they are not all children—are likely to wander around with alcohol causing problems. They will know the faces as they will come up repeatedly. The issue is one of good policing and the management of public space problems.

Let me refer again to the park that I mentioned, and the kids who have caused such misery there. I have seen them coming into the park from different estates and gathering together with alcohol. The provision would give the police a tool that allowed them to deal with such problems in a proportionate way, so that the young person involved did not end up with an acceptable behaviour contract for something that is a particular problem for a particular group of people. If acceptable behaviour contracts are breached, that can lead to much more serious consequences for the young people. The provision would be an important tool, which I hope that the police will use. It would provide a proportionate sanction for the kind of problems and behaviour that we see.

Once young people get older they often change their behaviour. Some will move on from that kind of offence and become a serious problem in terms of antisocial behaviour, crime or alcohol or whatever. In those cases, it is right to have other sanctions. However, in respect of that age group and the kind of problems that they cause, these are the right penalties and the right level of implementation. I hope that the provision succeeds; it is important.

Nicholas Winterton (Conservative, Macclesfield)

Before I call the hon. Member for Chesterfield, let me say that I want to be helpful to the Committee and I do not want to deter valuable contributions to the debate in any way. However, after this sitting, which must finish at 10.25 am, we have only a further five sittings of the Committee. We still have more than 60 clauses to debate; there are a number of new clauses and I am aware that there are some amendments still to be tabled. I ask all members of the Committee to bear that in mind when deciding whether to speak.

Paul Holmes (Liberal Democrat, Chesterfield)

The intention of my amendment 242 is similar to that of amendment 86, but it provides a slightly different way of arriving at the same path. The hon. Member for Northampton, North said that perhaps the two amendments were designed to make the penalty less enforceable, which was a cheap political point. Perhaps we will come back to that in a minute when dealing with some of the other comments. However, if there is a danger of unnecessarily criminalising the young—as most people accept—any measures that avoid doing so while effectively stopping public disorder are to be welcomed. It is better to find a different way rather than automatically criminalising people and I am sure that the hon. Lady would agree.

The number of young people convicted of criminal offences increased between 2002 and 2008 by 27 per cent. That could be a worrying trend. Research evidence also suggests a 31 per cent. increase in 11 to 15-year-olds drinking outside between 1990 and 2006. Nobody can doubt, as I have said repeatedly during previous sittings, that public disorder and young people drinking in parks, streets and other public places are of major concern to people. Clearly, we want to tackle that, but as many sensible commentators would observe, if we automatically criminalise young people through offences of this kind, that can create a downward trend in their behaviour.

There was some mistaken comparison between ABCs and ASBOs. They are quite different. ABCs are a much more positive way to alter young people’s behaviour than slapping on ASBOs, which have come to be seen as a badge of pride by young people in some circles. There is a difference between a purely harsh, punitive approach that criminalises young people at the drop of a hat and a sensible approach that deals with public disorder issues in a way that leads young people away from getting further involved in criminality rather than giving them a badge of pride to wear by slapping on ASBOs and criminal offences. A number of the commentators on the Bill who sent in evidence, including Alcohol Concern, raised exactly those points.

Sally Keeble (Labour, Northampton North)

Does the hon. Gentleman not agree that acceptable behaviour contracts are part of the suite of measures including and leading on to ASBOs? If he looks in secure training and custodial centres and other heavy-duty places, he will find a number of young people who went down that route—they started with acceptable behaviour contracts, then received ASBOs, then went into custody. That is much more serious than giving them a fine and dealing with them there and then.

Paul Holmes (Liberal Democrat, Chesterfield)

That is true, although we should also consider the people who were given acceptable behaviour contracts and did not proceed to criminality or young offenders institutions. Otherwise, that observation is fairly meaningless, because it considers only those who end up at the worst end route of criminality rather than those who are diverted from it by more effective interventions.

The hon. Lady said that to go down the route of ABCs the police would have to know who the people involved were, but during the first week of the Committee, we heard in evidence from the police and others that of course they know who those people are. That is the whole point: they are the persistent offenders. They are the ones who, in public places known to the police, have been observed, caught and recorded three times in 12 months drinking and participating in the rowdy behaviour that goes with it. Of course the police know who they are. That is the whole point.

We are not talking about hitting somebody who drinks in public once, moves away when told off by the police and does not do it again. We are also not talking about situations such as those we discussed earlier where the police—I have been with the police when they have done this—take a young offender back to their parents and say, “Do you know what your child was doing?” Some parents will shrug their shoulders and say, “So what?” Other parents—we need to remind ourselves that they are the majority—are horrified. That is simple intervention. It is one of the welcome effects of the regrowth of beat police teams and the work of PCSOs and police officers within them. Through such simple interventions, children’s and teenagers’ behaviour is picked up. Often, when it is referred back to their parents, they hit the roof, and that alters their children’s behaviour.

We are not talking about random, one-off or early, low-level misbehaviour that is caught, referred back through police and parents and solved without criminality or court. We are talking about regular offenders. That is the whole point, as witnesses pointed out in the first week of evidence-taking sessions in the Committee. Such people are known to the police, because they offend over and over.

I am sure that every Member in this room, just like every councillor and police officer, can rattle off a list, off the top of their head, of kids who cause problems in various areas of town, because they are known persistent offenders. They are the ones about whom we receive correspondence over and over. Of course they are known. The point is, what do we do? Do we wait until they have committed three offences and then criminalise them, or do we intervene earlier with an acceptable behaviour contract to divert them? Of course some of them will end up in young offenders institutions, but how many can we divert before that with effective interventions? I will not go into all the other questions of what we can do through youth services, youth clubs and other interventions of a more positive kind, in which local authorities have a huge part to play.

The hon. Lady said, “Oh, you know, the trouble is that the police have to work with the local authorities”, but that is one of the welcome aspects of the thrust of crime and disorder reduction partnerships. At last, we are accepting that crime is an issue not just for the police, the offender and suffering neighbours, but for the whole community. As part of that, remarkable steps forward have been taken through local authorities and police working together effectively in all sorts of ways. A cheap political point could be made about Northampton council—the Conservatives echoed it—but until less than two years ago it was a Conservative-run council and judged to be the worst in the country. It has improved remarkably in less than two years, since the Liberal Democrats took over, as I am sure that any objective observer, including the local press, who dubbed it the worst council in the country, would agree. However, we shall not go down that route. [Hon. Members: “You just did.”] Only under severe provocation.

In a slightly different way, but with the same intent as amendment 86, amendment 242 is designed to ask the Government to consider, while still going down the same route, pausing a little and saying, “Before we go for automatic criminality, are there other more effective things that we could do first?” Are the police just going to wait until someone they know of hits that barrier of three or more offences over 12 months before charging them with a criminal offence? Or are we going to intervene earlier? That is where an acceptable behaviour contract has much to offer.

On amendment 35, we have explored already the difficulty of defining “reasonable excuse”. However, there is also a difficulty with defining parental permission. Either way, we have the same issue: what is a reasonable excuse? What is reasonable parental permission? I disagreed greatly with a recent statement by the chief medical officer that parents should never allow children under 15 to drink alcohol. That is absolute nonsense. Responsible parenting and drinking, and the Government’s aim through 24-hour licensing to bring about a continental cafÃ(c) culture, will come about only with a responsible attitude to drinking. One way of encouraging that, as can be seen in Europe, is to allow parents to show children how to drink responsibly. When my family sits down to a formal meal, my children have a glass of wine—when it is a celebration, such as new year’s eve or a birthday and so on. Touch wood, so far, they have never been found lying drunk in the gutter, because drinking is not a novelty to them. It is not a big deal; it is a normal, sensible part of life. The chief medical officer was absolutely wrong about that.

That brings us to the question of parental permission in amendment 35 and of “reasonable excuse” in clause 29. What is reasonable permission? As we have discussed already, some parents would think it quite reasonable to permit children to take alcohol and get smashed in the park, cemetery, town centre, bus stop of wherever it is that they hang out. Some parents would think, “What’s wrong with that?” That is parental permission, but it is not parental permission that we would want to accept as a reasonable excuse for carrying alcohol in a public place. However, we would accept other parental permissions and reasonable excuses—we have debated some of those details already, so I shall not repeat them.

The intention of amendment 35 is to get the Government to clarify “reasonable excuse”. Simply stating “parental permission” leaves as many hostages to fortune as “reasonable excuse”. We need some clarity on that. Then of course we are back to the question of exactly how the police enforce it, how sensitive they are and how they apply the provisions. That returns us to the question of whether, in a middle-class area, they say, “Well it’s okay. It’s just high spirits if they are drinking round the back of the pavilion or rugby club,” as opposed to, in another area, saying, “Oh no, that’s wrong because it’s in a different part of town.” The crucial factor will be the sensitivity of the police—in Derbyshire, as far as I can see, it is excellent—in applying the provisions.

Alan Campbell (Labour, Tynemouth)

It is interesting that the Liberal Democrats reject the advice of the chief medical officer, but leap to the defence of the chair of the Advisory Council on the Misuse of Drugs—it is well that the hon. Member for Oxford, West and Abingdon is not here.

The measures are not about further criminalising young people, but they do take into consideration the frequency of the offence of public drinking and the severity of the associated antisocial behaviour through the use of a tiered approach. Again, that returns us to flexibility. We do not envisage the situation that the hon. Member for Chesterfield flagged up, in which the police simply wait before using the measures or move to use them too quickly. We envisage that one-off offenders will be dispersed from the locations and the alcohol will be confiscated. Those caught a second time may well be subject to an acceptable behaviour contract, and prosecution may be reserved for serious persistent offenders; but those are the people who are beyond the diversion that the hon. Gentleman is talking about.

Those people may also be beyond other measures. The hon. Member for Chesterfield flagged up the age-old idea of ASBOs being badges of honour, but the National Audit Office report shows that in reality interventions using those measures work, by and large. Two thirds of people change their behaviour after one intervention, and 93 per cent. change their behaviour after three interventions. It is for the small group of people who believe they are beyond the law that we need further measures. I thought that that was a theme picked up by the chief constable of Northumbria when he gave evidence to the Committee. It is not that the police do not know who the people in question are; the hon. Gentleman said that the police do know that. The question is what they can do with them. Do they have the tools and powers? Are those effective and useable, and do they give the police the flexibility they need?

Paul Holmes (Liberal Democrat, Chesterfield)

The point I was making was that the police know who those people are; but do they wait 12 months, or do they start doing something much earlier?

Alan Campbell (Labour, Tynemouth)

They do not wait. They intervene. We are talking about occasions when there is persistence—perhaps not only in having alcohol but in disregarding police warnings and action. The strong message that we received when the chief constable of Northumbria gave evidence was that the police would welcome the measures because they believe they need an extra push to be able to deal with the few people to whom the offence would be relevant.

I want to answer the points that the hon. Member for Hornchurch raised about amendment No. 35. We have been clear throughout that parents should take responsibility for their children. That includes their children’s drinking. However, as the hon. Gentleman has said, some parents do not take that view at all. An alarming number of young people said that they had either taken the alcohol that they had from their homes, or had been given it by their parents. That is entirely unacceptable. Winding on slightly, to see what might happen if parents were involved in that way and their children had been caught with alcohol in public, they would probably say, “We gave it to them.” If they had no qualms about giving it to them in the first place, why would not they leap to their defence if the police became involved? The provision is not about saying that the idea of parental responsibility is not a proper way of looking at the question. We are saying that for some people we need to go beyond it.

The hon. Gentleman asked about reasonable excuse and made a point about possession. Unless I am mistaken—I shall certainly check—I do not think that possession is the same as consumption. Part of the problem that the police were talking about was that young people might have drink that had not been opened, and they wanted the power to take that too, as a preventive measure. That is a very important step forward.

James Brokenshire (Conservative, Hornchurch)

This is a pretty important point about the ambit and scope of the clause. Is the Minister saying that the clause will cover only the possession of sealed bottles, or is it wider than that? Obviously, if a bottle is unsealed it could potentially link to consumption indirectly, because people are in possession of alcohol so they can consume it. That was the point I was trying to make.

Alan Campbell (Labour, Tynemouth)

No, it applies whether the container has been opened or not. Sealed or unsealed: it would not matter.

What would constitute a reasonable excuse? It is probably better to sketch out a couple of quick scenarios. For example, if a young person was employed, perhaps in a part-time job, and part of that involved the delivery of alcohol, of course that would constitute a reasonable excuse. Helping a family member or other person to transport alcohol from one location to another would likely be a reasonable excuse.

The hon. Gentleman raised the issue of teenagers in a park with parents, but that goes back to the point made about the common-sense approach that the police would be expected to adopt. I would not see anything wrong with the scenario he sketched.

Sally Keeble (Labour, Northampton North)

My hon. Friend is right about the police interpretation of what people are doing with the alcohol, but is a park definitely included under the category of public place? My local police force wanted some clarification on what exactly constitutes a public place. Does it include recreation and sports grounds, school playing fields and those types of places? Will the Minister give us a list? I am sure that a list will be produced.

Alan Campbell (Labour, Tynemouth)

My understanding is that a park and the other things that my hon. Friend talked about will be included in public places. However, she will however be aware of the dangers of producing a list: if we produced a list, we could leave something off it, which could provide a way around the legislation. We will look at the situation, and I will get back to her. We will also look at guidance and giving greater clarity. It is not only a case of the police using common sense; if there were a prosecution, the Crown Prosecution Service would have to take a view.

On acceptable behaviour contracts, I want to refer in passing to my hon. Friend’s wise words. We do not want to get the approaches mixed up. Acceptable behaviour contracts are voluntary agreements with persons involved in antisocial behaviour. They are voluntary by nature, and if we somehow tag that on to the offence, it would not be long before the young person worked out that they should not enter into a contract.

We want to encourage the approach that the hon. Member for Chesterfield talked about, but not to muddy the waters or complicate matters by making the breach of an acceptable behaviour contract a condition. Similarly, we would not want to get it mixed up other antisocial behaviour measures. If we linked the offence to acceptable behaviour contracts, what would happen if the person was on an ASBO? That takes us into all sorts of areas to which we do not need to go. It would be beneficial to keep the many pillars of the policy absolutely separate from one another.

James Brokenshire (Conservative, Hornchurch)

I have listened to what the Minister has said, but will he confirm that it is no longer the Government’s policy, as stated in the “Youth Alcohol Action Plan” that

“Prosecution will require evidence of continued confiscation and failure to abide by an”

acceptable behaviour contract?

Alan Campbell (Labour, Tynemouth)

I do not think that the position has changed in that regard. We are saying that there is an alternative, complementary approach. I do not think that the two approaches contradict each other in the way that the hon. Gentleman says.

James Brokenshire (Conservative, Hornchurch)

That is what the plan says.

Alan Campbell (Labour, Tynemouth)

We clearly disagree, in which case the hon. Gentleman must let me come back to him on the issue. He obviously does not accept my words on it.

Sally Keeble (Labour, Northampton North)

I should have asked my hon. Friend about this earlier. He gave two examples of reasonable excuses that were employment related, but what about a reasonable excuse that is socially related? What if a young person is carrying alcohol, not for the purposes of employment or helping, but for consumption, when there is a reasonable excuse, and when it might be consumed in a place where it would not fall foul of a ban on drinking in public places? Will those reasonable excuses be accepted in such situation?

Alan Campbell (Labour, Tynemouth)

I am not absolutely sure that I get my hon. Friend’s point. Does she want to have another go?

Sally Keeble (Labour, Northampton North)

Suppose someone is taking alcohol to a party or having a drink with friends outside school following exam results. They would not be causing a huge mischief. That is the scenario I was talking about.

Alan Campbell (Labour, Tynemouth)

I think the answer is that the officer will have discretion. I meant to say in passing that I parted company with my hon. Friend when she talked about people celebrating exams. Having spent some time in education, I assure her that it is not as benign a situation as she has described. It will be at the officer’s discretion, but I am not confident that the scenario she sketched of going to a party with young people would not fall foul of the provision.

We do not want to link the acceptable behaviour contracts approach with the group of amendments. We believe that the amendments would complicate the situation. We need a clear and tiered approach and the amendments do not provide that. I hope that the hon. Gentleman will withdraw the amendment.

James Brokenshire (Conservative, Hornchurch)

I have listened carefully to the Minister and note that he will reflect on some of the points that have been made. The amendments were intended to test the Government’s intentions. I believe that he has set out a change in policy and emphasis, as encapsulated in the “Youth Alcohol Action Plan”. It is sensible and practical that there be greater flexibility. However, it seems that there has been a move away from a requirement for a breach of an acceptable behaviour contract, which gives greater discretion. I note that he will reflect on that matter and have heard his comments on reasonable excuse. This issue will need careful consideration as the Bill proceeds. On the basis of his comments, I beg to ask leave to withdraw the amendment.

Alan Campbell (Labour, Tynemouth)

I beg to move amendment 126, in clause 29, page 22, line 37, leave out ‘licensed’ and insert ‘excluded’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss Government amendments 127 to 129.

Alan Campbell (Labour, Tynemouth)

We made it clear when we published the youth alcohol action plan last year that our aim is to deter young people from drinking unsupervised in public. Unfortunately, the Bill inadvertently captures young people drinking in premises with a qualifying club premises certificate, such as a working men’s club or sports club bar. As the offence aims to deter persistent drinking in public places, it is important to be clear about what a public place is in relation to alcohol consumption. A young person in possession of alcohol in a licensed club premises should not be at risk of committing this offence.

The Licensing Act 2003 is clear that persons under 18 cannot be sold alcohol in, nor can they consume it unsupervised in such premises. By accepting these amendments to the definition of licensed premises so that it includes premises that hold a club premises certificate, young people will be prosecutable under the new persistent possession offence only if they are caught in possession of alcohol in a public place three times within a consecutive 12-month period without a reasonable excuse. This provision will reduce the incidence of alcohol consumption by children in public and thereby reduce the likelihood of antisocial behaviour, crime and disorder.

Nicholas Winterton (Conservative, Macclesfield)

I hope that we can complete consideration of the clause before 10.25.

James Brokenshire (Conservative, Hornchurch)

I will take your comment to heart, Sir Nicholas. I just have some quick questions for the Minister. First, is it intended that there will be formal recording of the warnings to trigger whether the offence has actually been arrived at? How will that procedure operate in practice?

The equality impact assessment notes:

“The police commented that in order to be effective the new offence of persistent possession will require details of all alcohol confiscations to be recorded. Whilst this will help us to monitor the effectiveness of the policy, it may increase the amount of time the police need to spend dealing with each confiscation.”

What assessment has the Minister made of the impact of the operation of the clause on police time? That is obviously a relevant factor in considering the operability of the clause.

The equality impact assessment also states:

“No reliable trend data on the use of existing alcohol-related police powers exists.”

Is the Home Office likely to remedy that to ensure that there is best practice and best effect in relation to the various triggers that might be used and the various provisions that might be appropriate?

The regulatory impact assessment notes that the cost of implementing the provisions is estimated at £56.1 million, yet it states that the annual benefits are currently “unknown”. What consideration has been given to that issue?

Finally, the regulatory impact assessment states:

“Although we anticipate the number of young people drinking in public places to reduce we expect there to be a lesser effect on the overall level of consumption of alcohol by young people. In some cases it may simply be that the young people switch to drinking at home or friends houses rather than in public places.”

What does the Minister see as the overall impact and how does he assess the effects of the clause if, as the regulatory impact assessment seems to suggest, it may simply result in displacement and nothing more?

Alan Campbell (Labour, Tynemouth)

As I recall, the police view on recording was that that is good practice in some areas. We would certainly want to see that good practice rolled out. However, they were also keen to tell us that it is predominantly a local matter. As the hon. Member for Chesterfield said, the police will know the people, and they will not only be aware of who they are but will record that information. That is the usual practice.

Of course, we are very much aware of the issue of burdens on the police and the best use of their time. However, as I said, it is good practice in some areas to record the information. The police will put it into their pocket books now and, if it is not a burden on them now, I am not sure how it will be a burden on them in the future if that best practice is extended. When it comes to considering best practice for all the measures, of course we take such factors into consideration all the time. I cannot give the hon. Member for Hornchurch a definitive answer. I cannot say that there will be a review and it will be published on a particular day, but of course we will examine the effectiveness of the measures. We will seek to quantify their effect, not least because we want to ensure, in line with what the police are telling us, that they are working.

On the point about displacement and the apparent worthlessness of what we are seeking to do, I do not agree at all. There may well be some displacement, of course. People may move on to somewhere else, another public place, and then fall foul of the legislation. They may go to someone’s house. We are not claiming that there will be no displacement, but the police tell us that the powers will be useful on the street and we believe that they will have an effect. We believe that they will send the strong message that we need to continue to send to young people, as well as giving the police the effective powers that they are asking us for. I certainly do not agree with the hon. Gentleman if he says that there will be no effect. Interventions can and do work with young people. This provision is part of a package of measures, but it is an important part.

Clause 30

James Brokenshire (Conservative, Hornchurch)

I can begin the debate on this clause as I have a few seconds. It is an important provision that will require careful consideration, given the impact that it may have on some very young children and the overall impact on and interrelationship with child protection issues. It extends directions to leave an area from people aged 16 or over to those aged 10 or over. I look forward to continuing the debate.

James Brokenshire (Conservative, Hornchurch)

We had just made a start on clause 30, which includes a new provision relating to directions to individuals who represent a risk of disorder. The clause will amend section 27 of the Violent Crime Reduction Act 2006. Currently, an individual aged 16 or over who is in a public place can be given a direction to leave that locality and be prohibited from returning within 48 hours. There are two trigger requirements: first, that the presence of the individual in that locality is likely, in all the circumstances, to cause or to contribute to the occurrence of alcohol-related crime or disorder, and secondly, that the giving of a direction is necessary for the purpose of removing or reducing the likelihood of there being crime or disorder in that locality. Clause 30 will reduce the minimum age from 16 to 10.

I understand the concept behind what the Government are trying to do. We heard from the police during the Committee’s evidence sessions why they felt that the power would be helpful. However, it was interesting that they felt that it was at the top end of that age range—I think they mentioned 14 and 15-year-olds—that the power was most likely to be used. In all genuineness, because it will extend to 10-year-olds, the provision makes me feel somewhat uncomfortable because of the clear relationship between criminal law and child protection issues.

The clause as it stands speaks only of the requirement to prohibit someone from being within an area for 48 hours and the removal of that person from the area, but we know that the police have other powers to take children to a place of safety, their home or where their parent or guardian might be. I want to understand properly how the provisions are intended to fit together. For example, in clause 28, the Government give the police an additional power to take a child home in circumstances where alcohol has been confiscated. I accept that alcohol may not be confiscated in the circumstances contemplated in clause 30, although there may be some overlap, and that the police have other, general powers to take children back home if they feel that they are at risk or in danger. I am still trying to understand clearly why there is a power in the Bill to move children on, particularly young children, rather than a requirement to take them to a place of safety or ensure that appropriate child protection arrangements are being followed through.

On the question of 10-year-olds, if there is a risk to their safety—section 27 of the Violent Crime Reduction Act 2006 specifically contemplates a risk of crime or disorder—do we think that it is acceptable simply to move the child on and displace them in those circumstances? It is important that we hear from the Minister how the power is intended to relate to other police powers as well as to social services and everything that goes with them. Certain agencies have picked up on the issue. The YWCA said in its briefing notes to the Committee that it

“has serious concerns about reports from some young women that they have been ‘moved on’ by the police under existing legislation, but not always to an established place of safety. This has meant in some circumstances that young women have been put at risk by being moved to unsafe places like unlit parks or by having to find their own way home. This can put young women into extremely vulnerable positions.

We believe that an approach of providing a package of support for young people is the best way to ensure that they do not get locked into a cycle of offending. Any ‘Direction to Leave’ to young people that does enter legislation must include a requirement for young people to be taken to an agreed place of safety.”

Obviously the YWCA is highlighting its specific concerns, but there is something worrying about the extension from 16 to 10. It is horrifying to think that a 10-year-old would be out late at night at risk of offending and getting into disorder. Sadly, that reflects some of the difficulties, problems and challenges faced by many of our communities up down the country, which is why I understand the Government’s belief that a simple power of removal may not necessarily be appropriate in isolation. The police may feel that they are constantly taking children back to their home or elsewhere. In those circumstances, as we discussed this morning, some parents simply let the child back out again. There is no parental responsibility. The Government are trying to say that we need an additional trigger or lever to get parents to take their responsibilities seriously, albeit that it is now through something that is almost a criminal process.

The real question underlying all of this is what options have the Government explored to avoid going down the criminalisation route? Clearly they must have examined other options, some of which we touched on this morning. The Government have formed the view that it is necessary to go down a criminal justice route. It would be helpful to know what their rationale was, what the evidence was and what their thoughts were in trying to balance the issue of child protection and parenting with the issue of criminal justice. Why do they think it appropriate to take this approach rather than seeking to trigger support from social services or child welfare, which I wholly accept are not mutually exclusive? Clearly something has gone on for the Government to feel that escalation to this level is required.

In that context, and because I think there is a need for interlinkage, will the Minister explain why, according to my reading of clause 3, there is no requirement to notify the parent or guardian of a child issued with a notice under section 27 of the Violent Crime Reduction Act? That may happen, but I should be grateful if the Minister considered that. If a child is at risk of offending and is in a situation where the police feel strongly that this power needs to be invoked, there should be a requirement for notification to go to the parents or the guardian.

It would be interesting to understand what protocols and procedures are envisaged. If a child is in receipt of that notice, would the police notify children’s social services in the local authority concerned? There are child welfare issues and risk and danger issues if a child as young as 10 is issued with this sort of notice. As we know, some of the problems that many young children face are linked to their home environment, behavioural issues, mental health issues and drug addiction. Their parents may have similar issues too. We need to ensure a more co-ordinated and strategic approach once an at-risk child has been identified through this mechanism and a notice has been issued. I understand some of the rationale behind the direction that the Government are taking, but in isolation, it is difficult to understand and appreciate how the provision is intended to operate in practice. This is a sensitive clause, because of the age of the children concerned.

I have a question for the Minister arising from the youth alcohol action plan, which includes in its summary of actions the issuing of

“guidance to the police, health and children’s services to strengthen their approach to dealing with young people drinking in public places.”

That relates to our previous debate, and the action plan says that the timing of the provision is subject to the parliamentary timetable. The Bill deals with a number of the aspects of the action plan. If we are to gain a better understanding what sort of response is intended to deal with children in such situations, what has happened to the guidance contemplated in annexe A of the action plan? If parliamentary approval is required, or if it is still envisaged that it will be required, why is such a measure not included in part 3, which seems to encompass the main aspects of the guidance? Perhaps it has been published already or dealt with in another way. However, it would be helpful to understand clause 30 better, because of the significant and sensitive nature of the additional powers that the Government seek to give to the police.

Paul Holmes (Liberal Democrat, Chesterfield)

I have three brief points to make. First, I am sure that the police would say that the existing powers are too limited. However, it can be argued that there is a battery of existing powers that could be used in the situations envisaged in clause 30. Under section 46 of the Children Act 1989, the police can, under certain circumstances, remove children for their own safety. Under the Anti-social Behaviour Act 2003, under certain circumstances, children under 16 can be removed to their place of residence. Under sections 4 and 5 of the Public Order Act 1986, action can be taken if anyone—children, in this case—is using

“threatening, abusive or insulting words or behaviour”.

A group of 10, 13 or 15-year-olds under the influence of alcohol might well fall under the provisions in the Public Order Act in respect of their language, behaviour and so on. Why are all those existing powers in legislation deemed so inappropriate that we need a blanket provision or catch-all so that all children between the ages of 10 and 18 can be dealt with as stated in the Bill?

My second point concerns a matter that we have already touched on. Is it suitable simply to say that we can move people on? Let us imagine a group of 10, 11 or 13-year-olds in a public place, perhaps on a dark winter’s evening: the police believe that there is a problem and that they need moving on. Is it really appropriate simply to move a group of 10-year-olds from one spot to another, rather than taking them back home, for example, or taking some other action? There is a question about the suitability of moving very young children around and whether we are simply displacing their behaviour.

The police will say that in some cases the issue is not clear-cut. A group of children might well be causing what the neighbours perceive as a public order problem, but are not actually breaking the law. At 9.30 pm one evening, I was with a police community support officer in Duckmanton, a pit village on the edge of my constituency. Three 13 and 14-year-old lads were riding around on their bikes, hitting each other over the head with a huge lump of polystyrene. No offence was being committed, although some litter might have resulted and they were shouting very loudly. However, the neighbours would certainly have been unhappy about it. If the police had a word with them and they would move to another area and repeat the performance. In what way is existing legislation inadequate and why is it suitable simply to move the problem around, especially when dealing with particularly young children—the Bill proposes to amend legislation to cover children as young as age 10?

My third point concerns the attitude in this country towards age and criminality and the way in which we treat children. Rod Morgan, former chairman of the Youth Justice Board, said about eight days ago that we have one of the lowest ages of criminal responsibility in Europe, although it is even lower in Scotland at eight years old. However, we lock up twice as many young people as we did in the early 1990s, and we are criminalising many more. When we lock them up, it costs £200,000 a head to keep them in secure accommodation: money which might be better spent on adopting—the Government are fond of this—the Finnish example of strict liability.

In Finland, the age of criminal responsibility is 15, and the emphasis is on trying to rehabilitate young children aged 10 to 15, working with them through psychological approaches or rehabilitation programmes—whatever is appropriate for them and their families. That would cost much less than £200,000 to lock them up, as we tend to do. In Finland, only three children in the 10 to 18 age range are in confinement, as opposed to the 3,000 here. Statute that allows us to experiment with the Scandinavian route already exists, but with clause 30, we seem to be looking more at a punitive approach rather than tackling the problem at its source.

Simon Burns (Conservative, West Chelmsford)

I shall make a brief contribution to raise a specific point. I agree wholeheartedly with my hon. Friend the Member for Hornchurch, that it is incredible that children as young as 10 should roam the streets of our towns and villages, particularly at night, unsupervised by their parents. Sadly, as he alluded in his contribution, in certain circumstances that is a sad reflection of society but it is a fact of life at present.

The issue that puzzles me, which is connected to the clause, is the reverse of that situation. Notwithstanding what the Government are seeking to do, which basically is to grant powers to be used on the streets against groups of young people who need to be moved on, why are they not also looking at the other side of the coin? It came as a considerable surprise to learn, as a parent of teenage children, that in most cases in law, if a young person in that age group wishes to leave their home at night, and their parents say no, the parents have no legal right to stop their children from disobeying, except in certain narrow circumstances. If parents seek to bar the exit of the home for that young person because they do not think that it is appropriate for their children to go out on their own at night, and if they take action forcibly—in the peaceful meaning of that word—to stop their children, they are liable for prosecution. As a parent, that case came as a surprise to me—it is staggering. Why have the Government not looked at the problem from that angle to deal with what they are seeking to achieve in the clause?

Alan Campbell (Labour, Tynemouth)

It is a rare occasion when I hope that no young people read the record of the Committee and discover the power that the hon. Member for West Chelmsford tells us that they have; I will return to that point in a moment.

The hon. Member for Chesterfield asked whether the power is necessary, because all existing powers are—I think he said—superfluous, but that is certainly not the case. The power should be seen for what it is, which is a power to plug a particular gap that has been flagged up to the Committee during the evidence sessions by the police, who complain of a situation where a mixed group of young people might be having alcohol and causing trouble, or have the potential to cause trouble. There is a clear power for those aged 16 and over, but it might be a mixed group we are talking about, so what do we do with the younger members of that group? Just because they might be younger, it does not mean that they might not be the most serious perpetrators of disorder or trouble among that group—that is what the clause is about.

The hon. Gentleman states that it might be more suitable just to move children on, and there is nothing in the Bill that would prevent a police officer from doing that. It takes us back to the point raised throughout our deliberations in this part of the Bill about allowing the police to use their discretion and ensuring that they have the power that they need. In their view—a view that we share—it is a power that they may need to use in some circumstances, but it is a power that they do not yet have.

Paul Holmes (Liberal Democrat, Chesterfield)

I was in fact asking whether it is suitable just to move the children on, or move the problem round the corner, rather than tackling it as a wider issue. On the previous point, if there are children aged 10 to 16 with a group of older children and they are intoxicated on the street, why are the existing powers not allowing them to be taken back home or referred to social services? If the children are on the street with a gang of intoxicated youths, what exactly is the gap that this is filling?

Alan Campbell (Labour, Tynemouth)

I had written down the point and then misinterpreted it, so it is my fault and not the hon. Gentleman’s. The point that I am trying to make is that it might be entirely suitable for a police officer simply to move children on. In other circumstances it might be suitable for the officer to take the child to a place of safety. The police must have the ability to make that judgment. We must not be too restrictive and second-guess what they must do in every circumstance. We had little, if any, debate on clause 28. Clause 30 should be seen only in the context of clause 28 because that clause deals with the issue of child safety. Again, it depends on the circumstances.

The hon. Member for Chesterfield went on to argue a point about the age of criminality. That is a bigger debate than this particular measure has the time or inclination to deal with. But it is not about criminalising young people. It is a preventive measure to be used when the police officer thinks that it is proportionate and useful to do so. It is not about a quick escalation.

Sally Keeble (Labour, Northampton North)

Does my hon. Friend agree that the measure is a response to the common-sense observation that a lot of people make, which is that when the younger kids cause a nuisance the police do not have any powers to do anything? They can get social services and do all kinds of things, but simply getting them to go home, which might be some distance or just round the corner on the same estate, is a useful power to deal with a problem that everybody knows exists with the younger kids on their estates.

Alan Campbell (Labour, Tynemouth)

That reminds me of a recent visit to South Tyneside where very good work by the local partnership has been successful in tackling youth disorder, and problems with alcohol too. One part of the solution was to build a shelter for young people on the other side of a field rather than at the side where they were congregating. It certainly moved the children on, but in the view of residents it helped to tackle the problem. It was not a case of out of sight, out of mind. As far as the residents were concerned, the problem was removed.

I do not underplay, however, the point about child safety that the hon. Members for Hornchurch and for Chesterfield raised. In an emergency the police have the powers to bring in social services and other agencies that the hon. Member for Hornchurch was talking about. But that is not what this is about. As my hon. Friend the Member for Northampton, North said, it is about giving the police a particular power to move children on, and if used in conjunction with clause 28, the opportunity to take them to a place of safety too.

The example of a young woman complaining that she may be put into a more dangerous situation by being moved on is something that a police officer would need to consider. The hon. Member for West Chelmsford made a point about 10-year-olds in the dark at night. I do not think that that is incredible. It is incredibly sad that that should happen, but we acknowledge and the hon. Gentleman acknowledges that in some circumstances that can happen. Of course, the existing legislation applying to 16-year-olds has a time scale on it. We are not talking only about tackling problems in the dark of night. If we do not put a time scale on the measure, we could be talking about situations that the police might encounter at 5 pm or earlier, say on a school holiday or weekend. I hope that that helps to explain things.

Why are parents not notified of the powers? We have to be proportionate. We have a very good scheme in my constituency called Child Safe to take children back to their parents. That is how to notify the parents. We must be careful not to make the measure too burdensome. The police want a power specifically to move children that are younger than those that they are currently able to move on. I am not sure whether a detailed recording mechanism or having conditions applied would be helpful, particularly when we are conscious of the time and energy that the police already have to spend on such matters.

The hon. Member for Hornchurch asked where the measure fits in the overall scheme of things and in particular why parents are not involved. This measure is part of a range of measures. There is an element of escalation, so we could be talking—at some point in relation to the same child—acceptable behaviour contracts and ASBOs. However, we could also be talking about parenting contracts and parenting orders. We have to see the measure for what it is, but we must also put it into the context of the measures that are available at the discretion of the police.

James Brokenshire (Conservative, Hornchurch)

I rise to remind the Minister—this may be in his pile of papers—that I asked a specific question on the youth alcohol action plan and the proposal for a more partnership-based or collegiate toolkit. I do not think that he has addressed that.

Alan Campbell (Labour, Tynemouth)

Forgive me; I do indeed have a note on that. The guidance that the hon. Gentleman mentioned has not yet been published. The decision has been made not to do so until we have the new laws on the statute book and see how they fit into the overall picture of what needs to be done regarding young people. He may have a view on that. [Interruption.] He looks bemused.

James Brokenshire (Conservative, Hornchurch)

I am bemused only about the parliamentary timetable. I suppose the Minister is saying that he needs the Bill to be on the statute book before the guidance for all the agencies can be issued, and no more than that. However, I am sure he appreciates that the guidance that is referred to is quite important in the context of fitting all the different aspects and tools together to ensure that we get the necessary cohesive approach.

Alan Campbell (Labour, Tynemouth)

The guidance is important, and I do not by any means underestimate its importance. The hon. Gentleman is exactly right on why we have taken the decision.

Simon Burns (Conservative, West Chelmsford)

Will the Minister respond to the point that I made in the debate?

Alan Campbell (Labour, Tynemouth)

Will the hon. Gentleman remind me what that was?

Simon Burns (Conservative, West Chelmsford)

My point was that parents have no legal powers to prevent their children leaving home if they want to go out.

Alan Campbell (Labour, Tynemouth)

Again, I apologise to the hon. Gentleman. That is an interesting point, which I suppose touches on the measure we are discussing. However, if a child leaves home, the parents can call the police if they think that they are not safe. In that case, presumably, the child could be taken to a place of safety.

Simon Burns (Conservative, West Chelmsford)

I am grateful to the Minister, but that is not what I was asking. I was asking this: as part of solving or minimising the problem, are the Government going to consider taking such an approach, and why have they not already done so?

Alan Campbell (Labour, Tynemouth)

That is an interesting question. I will reflect on it and perhaps write to the hon. Gentleman.

Ms Keeblerose—

Hugh Bayley (Labour, City of York)

Before the hon. Lady intervenes I should say that the question of parental controls goes rather wider than the clause itself. The Minister said that he will respond to Mr. Burns, and I am sure that he will circulate the letter to other Members. The hon. Lady should therefore seek to ask him about another matter.

Sally Keeble (Labour, Northampton North)

I had not realised that parents do not have that power—I hope nobody tells my son. If the Minister is going to respond, perhaps he would also say how any such measure could be enforced. It seems difficult to do.

Hugh Bayley (Labour, City of York)

I must give the Minister the last word and then he may have some concluding remarks.

Alan Campbell (Labour, Tynemouth)

I think that the hon. Member for West Chelmsford is seeking not simply the enforcement of the power, but a clarification of the situation now. Parents do have the power of reasonable chastisement, and I am confident that if they took reasonable steps to prevent the situation that the hon. Gentleman talked about, no court would prosecute them.

Schedule 4

Paul Holmes (Liberal Democrat, Chesterfield)

I beg to move amendment 244, in schedule 4, page 123, line 17, leave out paragraph 2.

Hugh Bayley (Labour, City of York)

With this it will be convenient to discuss the following: amendment 37, in schedule 4, page 123, line 24, leave out ‘appropriate’ and insert ‘necessary and proportionate’.

Amendment 38, in schedule 4, page 123, line 25, at end insert

‘provided always that no such condition shall increase the minimum statutory age at which alcohol can be purchased.’.

Amendment 39, in schedule 4, page 123, line 26, leave out sub-paragraph (2).

Amendment 40, in schedule 4, page 124, line 2, at end insert—

‘(4A) Before making an order under this section the Secretary of State shall undertake such public consultation as he considers appropriate in the context of the conditions proposed and have due regard to the representations received.’.

Sally Keeble (Labour, Northampton North)

On a point of order, Mr. Bayley. Will you definitely be having a stand part debate? I wanted to speak on the clause, but it is pointless to speak to each group of amendments. I am happy to speak in a stand part debate, provided we have one at the end.

Hugh Bayley (Labour, City of York)

If it helps the Committee, I intend to hold a stand part debate with which we will also consider new clause 6.

Paul Holmes (Liberal Democrat, Chesterfield)

In the consultation, before the Bill was in its final form, Rob Hayward, the chief executive of the British Beer and Pub Association, expressed a fear that a mandatory code would disadvantage already struggling pubs. He said:

“The Government has the weapons it needs to tackle irresponsible retailers by rigorously enforcing the Licensing Act”—

the existing laws—

“We don’t need new laws and regulations, just better enforcement of existing laws.”

I would not go the whole way along with him on that, but the general point is good. The vast majority of licensed premises are not a problem. With proposed new section 19A the Minister is creating a series of mandatory offences; and a blanket roll-out across every licensed premises, regardless of whether the measures are needed in nine out of 10 cases, is overkill. From working with the Local Government Association—I declare an interest as a former councillor for 12 years —I know that local authorities would rather not see blanket requirements produced from the centre, and would rather have the flexibility to act as they see fit. They know best because they are on the spot, are elected by and live in the local community, and know where the trouble spots are and what is needed to tackle them.

We have already debated the concept of decentralising power on police collaboration and direction from the centre, and the same principle applies here. We are one of the most centralised democracies in western Europe. If we really believe in decentralisation and localism, why not give democratically elected local authorities more flexibility and power to operate as they see fit in their localities?

Schedule 4 amends the Licensing Act 2003 to create the enabling power to impose mandatory licence conditions on all existing and new pubs through secondary legislation. Surely that is a retrograde step. Do we believe what all three parties have been saying recently, and the Liberal Democrats for a very long time, about decentralisation, devolution and localism? The Licensing Act 2003 introduced greater local flexibility and democratic influence in the licensing regime and this measure reverses that completely.

It would be interesting to hear from the Minister on the mandatory code and Conservative amendment 39. Out of interest, I should like to know how the Government have arrived at the figure nine in this measure. Why not five, six, a dozen, 10 or 20? It seems a strange figure to arrive at, but that is a side issue. Local authorities know which premises cause concern, and they can focus licence conditions on them, so why impose restrictions and requirements on staffing and so on that might be expensive and that will affect everyone, including many pubs that are struggling to survive in the present climate, with taxation and the economy?

Removing subsection (2) would remove a swathe of over-regulation that many well-run pubs and restaurants cannot really afford in the current climate. For example, the Licensing Act 2003 requires premises to have a designated premises supervisor, in the form of a personal licensee, in place whenever alcohol is sold. The unforeseen consequence of that blanket condition has been an excessive burden on community groups when organising events at which alcohol is sold on a relatively ad hoc and irregular basis. As a result, only 30 per cent. of such groups have carried on applying for licences to sell alcohol at such events, and the Department for Culture, Media and Sport has since undertaken a costly, retrospective legislative reform order to try to undo the damage done by that legislation. We are in danger of going down the same road and making a similar mistake that we might want to reverse in a few years’ time.

Local licensing authorities are best placed to know and recognise the diversity of premises, or groups of premises, in each community and the problems that do or do not arise from them, depending on the area. Surely, the Government’s licensing objectives could be better met through local conditions and flexibility for local authorities. Where regulations need to be consistent across the country, the Government should provide guidance to that effect, rather than having automatic, stifling legislation and a blanket, mandatory process.

Some people in the trade have said that the danger of letting local authorities have greater freedom and flexibility is that there will be different conditions in different local authority areas, but so what? We get that in varying degrees now in different areas of local authority activity, as there are different licensing regulations on taxis and minicabs in different parts of the country. That is why we have democratically elected local authorities. There are also different educational regimes in different parts of the country, in so far as the Government allow that, because that is what locally elected authorities want, but so what?

The Home Office has indicated that the mandatory conditions are likely to be totemic and concerning activities that no premises should be carrying out. In reality, they are likely to include many things that the vast majority of premises simply do not do, so why take a sledgehammer to crack a nut by imposing blanket regulations across the board? One example that comes to mind is an “all you can drink for x pounds” promotion. A mandatory list is likely to be a list of “do nots” rather than “dos”, and staff training would be affected when licensed premises moved from one category to another.

Elsewhere, the Government follow the logic that mandatory conditions apply to responsible retailers as well as to irresponsible ones, and that there should be some variation in local conditions. In defending the new cost of the code, the Government say in the impact assessment:

“Allowing local authorities the discretion to apply some of these conditions will ensure that, to a large extent, these costs will be targeted at those premises which pose a real threat to the four licensing objectives. This is in accordance with the principals of Better Regulation.”

If that logic applies to other provisions in the Bill involving local conditions, why does it not apply to this measure? Why not allow all nine mandatory conditions—I still do not understand why it is nine—to be within the gift and control of local authorities, which are locally elected and locally accountable, and know local circumstances far better than any Minister sitting here in London?

James Brokenshire (Conservative, Hornchurch)

Amendment 244 would delete paragraph 2 of schedule 4, which sets out the main thrust of the mandatory code. In many ways I sympathise with the hon. Member for Chesterfield, who tabled the amendment, because we are having to debate the issue in isolation—in a void—and we are second-guessing what the proposal is actually about. As he rightly identified, the provision in paragraph 2 is effectively only an enabling power—it enables the code to be created and the provisions to be adopted.

Although we have been given a hint and some suggestions, we do not know what the mandatory code will contain. The Government are saying, “Don’t worry. We cannot really do this until the Bill has been enacted and then we will tell you what we propose,” but that makes it extremely difficult to understand properly the likely impact of the schedule and the operation of the system.

To be fair to the Minister, there have been a few signposts, directions and hints, but we do not have the code, so we do not know whether the proposal is appropriate. I accept that we need to face up to the concept of irresponsible promotion. We can debate it in more detail during the stand part debate, along with the other procedures and steps that could be taken and the way in which they would interact with the good practice that already exist in some parts of the country to try to manage the night-time economy, deal with promotions and address other factors. I have some sympathy with that approach, and I am trying to understand the issue, but we struggle to do so without the code.

The amendments tabled by my hon. Friend the Member for Bury St. Edmunds and I are testing and probing. The Government tabled a series of significant amendments last week to clarify their intention to create a new mandatory code for licensees, so for the Committee’s convenience, I will comment first on our amendments and then on those Government amendments.

Schedule 4 provides for detailed arrangements to establish the proposed code through the addition to the Licensing Act 2003 of new subsection (4) to section 19 and new sections 19A and 21A. Proposed new section 19A(1) states that the Secretary of State can impose mandatory conditions on

“all relevant premises licences or relevant premises licences of a particular description if the Secretary of State considers it appropriate to do so for the promotion of the licensing objectives.”

Those objectives are obviously the prevention of crime and disorder, the protection of children from harm, the prevention of public nuisance and public safety.

Amendment 37 would replace the word “appropriate” with the words “necessary and proportionate”. In part, this touches on issues of consistency. Under section 18(4) of the 2003 Act, a local authority, when considering applications for licenses, may grant the licence, subject to such conditions

“as the authority considers necessary for the promotion of the licensing objectives”.

I accept that defining what is necessary and appropriate might be a slightly legalistic point, but there is a distinction to be made. What one person considers to be appropriate might not be considered necessary by another. I am trying to drill down on the Government’s intentions.

Clearly, parliamentary counsel have opted for a different formulation in schedule 4, presumably to grant the Secretary of State wider discretion. I assume that that is why the different language is used here, but it would be useful to know whether I am picking up on a point that has not been contemplated. Will the Minister confirm whether or not the use of the word “appropriate” is intended to grant the Secretary of State a much wider discretion on the setting of conditions than would otherwise be available to local authorities through the 2003 Act’s provisions? If that is the case, it seems somewhat odd. Can the Minister explain the rationale? In the light of that discretion, amendment 38 would make it clear that the provision could not be used to raise, through secondary legislation, the statutory age at which alcohol could be purchased.

As I said, we do not know what the mandatory code looks like, or what it may look like in the future. I am sure that the intention is not to put through something that could be considered a significant change to the law. We could debate at length, although not in this sitting, what the appropriate age might be, but it ought to be set out in primary legislation for the whole House to debate. It should not, in essence, be implied through a licensing condition so that the Government could seek to impose through the mandatory code a requirement that the age limit be higher than 18 as a term of the licence. In certain local circumstances, there might be individual factors for a local authority to consider within the context of a licensing review, such as whether there has been disorder. Although that could be appropriate individually, a blanket approach would not be right. Such a thing should be introduced through primary legislation to enable proper debate and scrutiny. The amendment would preserve that position and clarify what the situation ought to be.

As we have heard, proposed new section 19A(2) of the 2003 Act rather strangely provides that the maximum number of mandatory conditions in effect at any one time should not exceed nine—nine is the magic number, for some reason. The hon. Member for Chesterfield was curious about how that number had been alighted upon. My best guess—I am sure that the Minister will be able to give us a definitive answer—is that it relates to the alcohol social responsibility principles set out in the youth alcohol action plan, which number nine in total. Again, we do not know how that number was arrived at. It was slightly odd that the Government sought to make that requirement, even though the social responsibility principles talk about promoting

“responsible drinking and the ‘Sensible Drinking Message’...To avoid any actions that encourage or condone illegal, irresponsible or immoderate drinking such as drunkenness, drink driving or drinking in inappropriate circumstances”

in addition to various other things.

Many aspects of that principle are understood and not contentious. I may have the wrong end of the stick, because we are slightly bemused as to how the number nine was arrived at, but perhaps the Minister can indicate why that particular aspect has been fastened upon. Does it relate to the alcohol social responsibility principles, or does it touch on something completely different? The Minister might be trying to reassure the industry that there would not be a huge shopping list of issues—I have some sympathy with that—but that there would be a focus on a small number of things. The Minister might be giving assurance to local authorities given that, as we have heard, almost all their discretion could be taken away in one sweep—if that is the case, why bother having local authorities at all? If all the mandatory conditions are set out by the Secretary of State from the centre, it undermines the ability of local authorities to judge what is appropriate for their particular area.

We were told at the outset that the approach on licensing was about letting local communities decide which licences should be granted in their area and on what terms. I have concerns about rowing back from that, because circumstances—we have confronted them—where the national guidance did not necessarily give local authorities the discretion that they thought that they had meant restrictions on things such as saturation and various other aspects that needed to be addressed locally. Those issues were quite problematic when the legislation was introduced, because local authorities felt that their hands were tied, despite some of the promises made about the intention behind the Act in the first place. That is why what is hidden in the detail—the statutory instruments or the guidance—is quite important for how the provisions will operate.

We need to understand the Government’s approach to ensure that the Bill does not give some sort of carte blanche discretion to license from the centre. To be fair, from what the Government have said, that is not the intention. The question is not about the intention now, but that in the future, in x years’ time, once the powers have been granted. They appear to give wide-ranging discretion to make changes or proposals that could erode a lot of what was originally set out in the 2003 Act. Some aspects of the agenda seek, understandably, to ensure that local communities have the powers they need to control excessive consumption of alcohol and to regulate licensed premises in their area.

Amendment 40 would set out some statutory basis for consultation. Because everything is left somewhat up in the air, we are almost reliant on statutory instrument for a definition. The schedule seems to suggest that the issue of how this would operate in practice would be addressed and the guidance would come through in secondary legislation.

It is important that the Bill states the need for consultation on this matter with local authorities, local communities and bodies that might be affected. I know that a consultation on the mandatory code is ongoing, although we do not know what it looks like. However, for purposes of reassurance, it is necessary to have a statement in the Bill requiring consultation, instead of a reliance on secondary legislation.

We must ensure that there are rights of appeal, challenge and consideration. If the Secretary of State came up with a proposal that was wholly unreasonable, irrational and disproportionate, and somebody had an issue with something in the mandatory code, I assume that the only redress would be judicial review. Perhaps the Minister can confirm whether that is the intention, or whether there will be a way of ensuring the right to challenge or appeal through the process outlined in the Bill. We need some way of considering the Government’s approach to the mandatory code. That approach might be laudable. It might deal with some of the appalling promotions that we have seen, which are designed for and targeted at binge drinkers and young people in particular. There is merit in addressing marketing, but I am trying to understand better the structure and intention of the mandatory code in isolation. We must ensure that it does not erode the important local discretion that we need for communities properly to address problems of alcohol, alcohol-related crime and licensing.

Alan Campbell (Labour, Tynemouth)

I shall reply to some of those points and then explain why we feel unable to accept the amendments. The first issue raised by the hon. Member for Chesterfield goes to the heart of the debate: why have a mandatory code and not just a local code? I hope that he accepts that there is almost universal concern about some of these issues in every part of the country. It would not necessarily be appropriate to leave it up to local licensing authorities to ensure that that concern is addressed in their own areas. We could end up with a postcode lottery of conditions that a sufficient number of people felt were important.

There were 2,000 responses to the Department of Health consultation, 90 per cent. of which were in favour of a mandatory code. There is common ground across the country and across groups. Certainly, with the support of the Association of Chief Police Officers and Alcohol Concern, there is enough anxiety around issues such as “Drink as much as you can for £10”, to warrant the application of the code across the whole country. That does not mean that we ignore local considerations, which is why there will be conditions that can be applied locally as well as mandatory conditions.

The hon. Members for Chesterfield and for Hornchurch both asked why there were nine conditions. That is a good question—I asked it myself—but it has nothing to do with the reference made by the hon. Member for Hornchurch to the youth plan, and much more to do with what he called the “huge shopping list” in our desire to be reasonable. He asked why not have five or 20 conditions. There will be nine because five would probably be too few and 20 would be too many. That is not a scientific answer, but I am saying that we are trying to be proportionate and to ensure that there are sufficient conditions, while leaving headroom for a future Home Secretary who might, with public support, bring forward further proposals. The number nine has not simply been plucked from the air. The other effect of having that number in the Bill is that it puts a statutory limit on mandatory sanctions so that they are limited as well as being imposed.

Paul Holmes (Liberal Democrat, Chesterfield)

If the Department has already done enough work to say that nine will be a reasonable figure giving some headroom for further expansion, it must have quite a clear idea about what people are suggesting and what it is likely to reject and accept. It is a shame that the Department has not published some of its thinking because, as is so often the case, we will not see much of the detail, which is the crucial part, until the Bill is passed. The detail then comes out in statutory instruments and all sorts of other backstairs methods that we cannot really discuss or reject.

Alan Campbell (Labour, Tynemouth)

I shall return to that point shortly. The hon. Gentleman talked about expensive conditions. I assure him that we have gone to great lengths to ensure that the kind of burdens that the industry has said—quite rightly—that it is most concerned about are not in the mandatory conditions. I will come back to what might and might not be in there. The hon. Gentleman will see from Government amendments that defining locality better and being able to target is an important part of proportionality.

We heard about the cost of regulations, and it was rightly pointed out that it would be quite possible that many, if not all, of these mandatory regulations will be “don’t dos”. Most of the “don’t dos” that I can think of will not cost the industry, or at least they will not cost the legitimate side of the industry. For example, if “Drink as much as you want for £10”, the purpose of which is to get people drunk, was not allowed, and if women were not allowed into pubs for free to attract men in to drink more, I fail to see how that would be an undue burden and where the financial cost would be. We will have to wait to see what the code looks like, but that is the principle upon which we are moving.

The hon. Gentleman referred to the number of pubs that had closed. I raised that point during the evidence sessions. I agree that we have to be very careful about burdens, but the evidence sessions showed that there was a whole range of reasons why pubs closed, not least the social changes that are taking place. I am trying to think of the last time that I was in a pub. It is probably easier for MPs not go to into pubs because we have work to do when we go in there—I do not mean bar work. There have been significant social changes, so while we need to be wary of burdens, we also need to put that into context. We will be providing guidance as part of the ongoing process, and there will be a mixture of national and local means through which to address the local issues that the hon. Gentleman is talking about.

We are working hard with a range of people about what should be in the mandatory code. I do not want to read everyone into the record, but we are talking—and have talked—to enforcement and local government agencies, the on-trade and off-trade, the third and health sectors, the Tourism Alliance, and the civic trust. We are also talking to the alcohol industry. The list is long, and I am happy to put it in writing for members of the Committee, or to put it in the Library, so that people can see who we have been talking to.

Sally Keeble (Labour, Northampton North)

Is my hon. Friend talking to any community group organisations? The public who have to put up with the menace of alcohol-related crime are the people who, above all, want to see proportionate measures to manage it. That is not about the third sector, but specifically about tenants, residents, community groups and suchlike. It is not about local authorities either; it is about local people.

Alan Campbell (Labour, Tynemouth)

I understand the point well. We are consulting those groups about what might go into the code. The Home Secretary has made it clear that we shall have the most extensive consultation process possible, so we are looking at what further measures we can take. I am not willing to say to my hon. Friend the Member for Northampton, North that that process will be in a particular form, of a particular length on a particular day because issues will depend not only on our progress in Committee, but the progress of the Bill. We are keen for the code to be in place when the Bill receives Royal Assent. Our ambition in respect of consultation will be shaped to some extent by what progress has been made.

My hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing referred on Second Reading to extensive consultation. No one can accuse us of having been shy in that regard. We have talked to a lot of people and have taken many views into consideration. If my hon. Friend the Member for Northampton, North is saying that we need to go wider, I will certainly bear that in mind. I am not closing my door to that proposal.

When the draft code is in place, I will be happy to share it with the Committee and I give a commitment to do that as soon as possible. The hon. Member for Hornchurch talked about saying something about it before the Bill is enacted, and it is certainly my intention to do that. As he knows, however, the schedule is an enabling measure because the mandatory code will be enacted through a statutory instrument. I am not saying that there are, but if there were nine elements to the code we could enact it through nine statutory instruments—if we wanted to—or through one statutory instrument and treat it as a basket of measures. [Interruption.] Whips and Ministers are terrified at that prospect, but as members of the Committee know, statutory instruments cannot be amended. We therefore want to consult widely and have as much sign-up to the measure as possible, which includes considering how much the parliamentary process reflects it. I am happy to put the list of consultees in writing and to share the draft code with members of the Committee.

I wish to explain some of our problems with specific amendments. Amendment 37 tabled by the hon. Member for Hornchurch concerns “appropriate” versus “necessary and proportionate”. Any Government action must be necessary and proportionate, and we believe that “appropriate” captures that definition sufficiently. We are looking especially at the targeting of the measures. I understand the mandatory code argument about all pubs, but we must remember that a series of other measures can be applied locally to particular pubs. We are conscious of that, and believe that targeting is part of the appropriateness of such matters.

A licence could constitute a possession under article 1 of protocol 1 of the European convention on human rights, and we accept that human rights may be in play. The Secretary of State, as a public authority, is required to act compatibly with the rights of the convention and, in practice, conditions must be necessary and proportionate. When talking to amendment 38, the hon. Member for Hornchurch referred to the legal age for purchasing alcohol in light of the recent discussions in Scotland. I wish to place it on the record that we do not believe that that would be an appropriate way to deal with the matter. I agree entirely with him that such matters should be dealt with under primary legislation, if we decided to go down that route. However, it is entirely inappropriate that a young man or woman can fight for their country in Iraq and Afghanistan, yet not be able to buy a pint of beer or a bottle of wine to celebrate their being back home with their family, so I hope that the hon. Gentleman is reassured by the fact that we have no plans to increase or decrease the age at which alcohol can be purchased.

Amendment 40 would introduce a statutory requirement to consult before introducing or changing the mandatory licensing conditions. I have already talked about consultation, but the effect of that proposal would be that whenever a condition was changed, there would have to be a costly and lengthy consultation process. It would create an unnecessary situation, and I hope that it will not be pressed to a Division.

Amendment 244, which was moved by the hon. Member for Chesterfield, would prevent the Secretary of State from imposing any national mandatory licensing conditions on all licensed premises. It would, however, still allow mandatory licensing conditions to be imposed on premises that hold a club premises certificate, so even if we went down that route, that would not be a suitable measure.

We believe that there is strong and widespread public support for a mandatory code. I have also given the Committee undertakings on sharing information and on consulting as widely as possible, so, in the spirit in which those undertakings were offered, I hope that the hon. Gentleman will withdraw his amendment.

Paul Holmes (Liberal Democrat, Chesterfield)

Clearly, we will have to continue to disagree with the Government about the degree to which local authorities, which are elected by, and represent and live in, their local communities, can be trusted and empowered to actually govern on behalf of those communities, as opposed to being told what to do and micro-managed from London.

Much of what the Minister said about the possible content of the mandatory code, as well as how it might be applied and the burdens it might place on licensed premises, was reassuring. However, as the Minister said, given the absolute lack of detail we will have to wait and see. I therefore beg to ask leave to withdraw the amendment.

Alan Campbell (Labour, Tynemouth)

I beg to move amendment 130, in schedule 4, page 124, line 15, leave out ‘in particular localities’ and insert ‘for existing licences’.

Hugh Bayley (Labour, City of York)

With this it will be convenient to discuss the following: amendment 245, in schedule 4, page 124, line 17, leave out ‘permitted’.

Amendment 41, in schedule 4, page 124, line 17, leave out ‘appropriate’ and insert ‘necessary and proportionate’.

Amendment 42, in schedule 4, page 124, line 17, after ‘on’, insert ‘all’.

Government amendment 131.

Amendment 43, in schedule 4, page 124, line 17, leave out ‘relevant’.

Amendment 44, in schedule 4, page 124, line 30, at end insert

‘provided always that no such condition shall impose a condition requiring specific financial payment’.

Government amendments 132 to 135

Amendment 45, in schedule 4, page 125, leave out lines 18 to 20.

Government amendments 136 to 149

Alan Campbell (Labour, Tynemouth)

I want to speak to Government amendments 131 and 137 first. The Bill as drafted would require a licensing authority to define an area that is experiencing levels of alcohol-related crime and disorder. The Bill can also be read as requiring general licensing conditions to be applied to all premises, whether they are contributing to the problem or not, in such an area. That was not our intention when preparing the Bill.

Government amendment 131 therefore ensures that, when applying general licensing conditions to licensed premises, a licensing authority no longer needs to define a locality. That will allow the authority to impose licensing conditions on two or more premises that are contributing to alcohol-related harm. By allowing licensing authorities to impose conditions on groups of premises, the amendment will make it easier for the authorities to deal with the problems that we see in town centres up and down the country every weekend. Such problems are not caused by single-problem premises, but are the cumulative result of several premises contributing to alcohol-related crime and disorder. While the Licensing Act 2003 deals effectively with individual premises, it can be difficult to take action against several premises because it is much harder to demonstrate which ones specifically contribute to a particular problem.

We are committed to ensuring that the action taken to tackle alcohol-related crime and disorder must be proportionate and targeted at businesses that sell alcohol irresponsibly. We recognise that the majority of businesses do sell alcohol responsibly, and we certainly do not want to impose unfair burdens upon them, particularly in the difficult economic climate.

Sally Keeble (Labour, Northampton North)

Will my hon. Friend explain what he means by “responsible”? Some of the public will have a different opinion on what he regards as the responsible or irresponsible selling of alcohol.

Alan Campbell (Labour, Tynemouth)

That is a wide-ranging area of discussion. By “responsible,” I am certainly referring to pubs and clubs that do not fall foul of the legislation or the conditions of the licensing committee. Of course, residents will always be concerned, especially when they live near pubs, but a large number of pubs and clubs do run respectable establishments. They do take precautions in order not to add to difficulties and dangers in either their establishment or their locality. I am not sure that I share my hon. Friend’s pessimism or, perhaps, scepticism about the majority of pubs and clubs. We need to ensure that, where we need to take further action and further conditions need to be applied to those pubs that are not respectable, the measures that we take are targeted and proportionate.

If a licensing authority wants to impose general licensing conditions, the Bill requires that it first identify a locality. Once a licensing authority has defined a locality, the Bill could be read as requiring it to impose general licensing conditions on every licensed premises within that locality, irrespective of whether each individual premises was contributing to the problem.

Amendment 42, tabled by my hon. Friend, would make that requirement even more explicit. Clearly, that could result in some businesses having disproportionate and, frankly, unfair burdens imposed on them just because they happen to be in an area that has experienced problems. The Government amendment allows the licensing authority to impose general licensing conditions on particular licensed premises, which are thought to be contributing to those problems.

James Brokenshire (Conservative, Hornchurch)

The Minister made an interesting point, saying that it would be unfair to impose those conditions on other licensees in the area. Does that mean that the Government are now in full retreat over their alcohol disorder zones, because that was precisely what that regulation was intended to do?

Alan Campbell (Labour, Tynemouth)

No, we are not in full retreat at all. Guidance was issued, as the hon. Gentleman knows, at the end of last year in order to make it easier for local authorities to bring forward proposals for alcohol disorder zones. He will know that they were always intended as a tool of last resort and there are many other measures that can be applied locally.

Let me tell him a difference between alcohol disorder zones and what we are proposing here. He will know that one of the reasons for setting up alcohol disorder zones was to allow a levy to be applied on licensed premises—all licensed premises—to go towards the cost of policing in an area where there was alcohol disorder. I am not sure whether he is suggesting that that is a better way of approaching the problem than the one that we are bringing forward now, because we would share his scepticism of that. A key difference is about raising money for enforcement. This is a much more targeted approach, but that does not mean that if a licensing authority went down that particular route and was unable to tackle a problem, they could not introduce an alcohol disorder zone. We would welcome local authorities bringing forward such proposals if they felt that it was necessary.

In addition, the amendment that we are proposing removes annoyance as a reason for imposing general licensing conditions on licensed premises. That is because annoyance is not defined in the Licensing Act and is not one of the four licensing objectives. Removing it therefore removes any possibility of potential confusion with nuisance. Licensing authorities can therefore impose general licensing conditions on a group of premises if there is an alcohol-related nuisance or disorder. Government amendment 137 is identical to Government amendment 131, except that it allows licensing authorities to impose general licensing conditions on just those particular club premises—for example, a members’ club that might be contributing to the problem—rather than a blanket provision for all clubs in a locality, and I invite hon. Members to accept both of those amendments.

Government amendments 130, 132, 133, 135, 142, 143 and 144, are consequential amendments as a result of Government amendment 131, which removes the reference to locality. If Government amendment 131 is accepted, the licensing authority would no longer need to define a locality. Again, I invite hon. Members to accept the amendments.

Government amendment 134 is a technical amendment to remove what is clearly an unnecessary subsection from the Bill. Under section 182 of the Licensing Act 2003, the Secretary of State must issue guidance to licensing authorities and under section 4 of that Act, licensing authorities must have regard to that guidance when carrying out all of their licensing functions. The Bill amends the Licensing Act so that that requirement will automatically extend to the new powers to impose general licensing conditions on a group of premises. The Bill inserts into the Licensing Act new section 21A(4), which states that

“licensing authorities must have regard to any guidance”

when imposing general licensing conditions on licensed premises. Clearly, that section is unnecessary and the amendment will remove it to prevent any confusion.

Government amendment 140 is identical to amendment 134, except that it removes new section 74A(4), which relates to club premises, rather than licensed premises. Amendments 136, 138, 139, 141, 146, 147 and 149 are consequential amendments as a result of amendment 137 to remove references to locality and, again, if amendment 137 is accepted, the licensing authority will no longer need to define a locality.

Government amendment 145 will remove the provision requiring licensing premises to display on the premises a list of all mandatory and general conditions imposed upon them. Instead, it will require licensees to keep a list of those conditions on the premises and to make the list available to the police and other authorities. When inspecting premises, it is essential that the police and local authorities can find out exactly what licensing conditions a premises has to comply with in order to enforce them effectively. Currently, the Licensing Act requires licensees to keep a certified copy of their licence on the premises and to allow the authorities to view it if they so wish.

The Bill also requires licensees to display a list of all mandatory and generally locally applied conditions that have been imposed upon them. However, licensees currently have to display only a summary of their licence, which does not include any conditions. The requirement to do so could impose an additional burden on some licensees. The amendment removes that requirement and therefore removes the potential burden. As I have mentioned, it is important that local authorities can check easily what the licensing conditions are and therefore the amendment requires the licensee to keep a list of the mandatory and general licensing conditions. Again, amendment 148 is identical to amendment 145 except that it relates to club premises certificates. With that, I invite hon. Members to accept these conditions.

James Brokenshire (Conservative, Hornchurch)

I am grateful for some of the Minister’s explanation of the further changes being proposed through the amendments to the provisions of schedule 4. Certainly, the modification to existing licences rather than particular localities implies that there might be a widening of the scope, but from what the Minister has said, I think he is intending to narrow down the scope—particularly through Government amendment 131, which we will come on to—in terms of those licensed premises that might be contributing specifically to problems of disorder.

Obviously, I heard what the Minister said about the deletion of the word “annoyance” from the list of factors in respect of which the local authority can trigger the application of one of the localised conditions from the Secretary of State’s approved list. However, as the Minister has explained, Government amendment 131 in essence allows a local authority to impose one of those blessed conditions on to two or more existing licences if certain factors have been triggered—in other words, nuisance or disorder is the fundamental aspect. The condition is appropriate for the purposes of mitigating or preventing that nuisance from taking place.

The issue about which I am still not entirely sure is the relationship between the requirements that could be imposed through the localised conditions and the review process itself. Normally, if the local authority has to demonstrate that there has been a nuisance to members of the public in relation to an individual licence, there would have to be a hearing, and the evidence would be presented by the police or the local authority—as the case may be—to justify that the licence should be reviewed and that potentially additional conditions be imposed or certain other changes be made in respect of that already-granted licence.

Does the Minister envisage, given this requirement to show that there has been nuisance to the public, that there would be some form of hearing in respect of that evidence? Or would it be accepted on the nod that this nuisance had occurred? It seems to take a different approach from that of the licence review—which I accept is only about individual licences—but equally it seems there is some overlap in that there could be conditions imposed and a licence review. Does the Minister consider that is appropriate, given that they touch upon similar themes and issues? He has made the point that it might be difficult to say whether disorder relates to particular licensed premises. Government amendment 131 states that the relevant activities need to have taken place

“on or near the premises”.

That does not necessarily mean that they have been caused by those premises. He will be aware of the relationship between on-sales and off-sales, with pre-loading before people go out, consumption of alcohol while they are out and post-loading when they get home. It is a complicated picture to work out where the responsibility lies. This was a topic of debate during consideration of the original construction of alcohol disorder zones. I welcome the fact that the Government’s amendments have rowed back from the alcohol disorder zone type of structure, which on its original drafting this schedule strongly echoed. I tabled amendment 42, not because I wanted to put all in there, but as a probing amendment, to clarify whether this was an alcohol disorder zone by another name. Amendment 44 was tabled on the basis that conditions should not impose a requirement of a specific financial payment. If local authorities wanted to go down that route the ADZ approach would be the way to do it, albeit that no local authority has in fact applied for an ADZ. I have described the ADZ as a policy disaster zone because of the complexity and nature of the issue and the fact that one does not know how to charge or cost it or which licensed premises would be caught by the ADZ regime. That is one for another day when a local authority does decide to dip its toe in the water and embark on an ADZ approach.

Will the Minister also clarify, even in that context, whether he considers this to be mutually exclusive of an ADZ application? When a nuisance or disorder has been experienced, could these additional conditions be levied as well an alcohol disorder zone applied for? In other words, there could be financial payment under an ADZ process plus additional conditions on certain licences under the localised mandatory conditions that could be imposed on two or more licences. It does not seem to suggest that they are mutually exclusive so I am assuming that one could go down that potentially triple-track approach of review, mandatory conditions and an ADZ. I am assuming that is the process and is in the toolbox for local authorities potentially to adapt and take. It would be useful to have clarification. The point of amendment 44 is important to understand properly— whether financial payment could be obliged in pursuant to this. That would be inappropriate. If a financial condition is to be imposed it should be through an ADZ approach. This localised condition approach should not be seen as a back-door way of imposing additional licence fees.

The other, more general, point about the principle of the issue is how the arrangement might hamper the ability of local authorities to take a licence review approach, anyway. If the conditions are designed to address nuisance and disorder, which is one of the licensing principles and therefore relevant if a local authority decides to take a licensing review approach, why should the Secretary of State restrict and prescribe certain conditions when the authority sets a licence if they are necessary and appropriate to address nuisance and disorder? It will be a fetter on some of the conditions that the authority might otherwise be able to apply through a licence review if, at that stage, someone says, “This condition that a local authority is trying to invoke on a licence review is unreasonable and unnecessary, because it is not within the mandatory or prescribed list of conditions that the Secretary of State has imposed from the centre.”

I am concerned about the relationship between the two regimes, and anxious that there are no unintended consequences of the Government’s proposals to introduce mandatory conditions that local authorities may impose when nuisance and public disorder has been triggered. I recognise some of the issues that the Minister seeks to address, but the situation may be more complicated than it appears.

Paul Holmes (Liberal Democrat, Chesterfield)

Amendment 245 would tackle the same issue to which the hon. Member for Hornchurch just referred: permitted conditions and the restrictions that they impose on the flexibility—the democratic, local accountability—of a local authority. Why should the Bill state that the only conditions applicable are those permitted by the Government in London, rather than those that the local authority believes to be appropriate? In the vast majority of cases, local licensing authorities will work from the same hymn sheet, from good practice nationally and from guidelines produced by the Government; but local circumstances and views could well differ. By removing “permitted,” the amendment would give local authorities the flexibility to represent their communities and to do what they think is best for their local areas.

Alan Campbell (Labour, Tynemouth)

The hon. Member for Hornchurch asked how the proposals would fit with alcohol disorder zones, and, as I tried to point out earlier, they are significantly different from those zones. We do not rule out the possibility of an authority considering both measures, but I cannot understand why they would want to do so. They will want to choose one or the other or, indeed, one of the other powers that are available to target the problem. Alcohol disorder zones apply to a whole area, but that goes against the principle that we set out in the Government amendments that would target particular premises in a particular area by redefining locality. One of the main reasons to set up alcohol disorder zones is to raise money for enforcement in that area, and the Government do not believe that general licensing conditions should be a way of raising money in an area, so we are talking about two different situations. I should be surprised if anyone found a way or, indeed, a reason for introducing alcohol disorder zones along with the measures under discussion.

The hon. Gentleman also raised the question of evidence of nuisance. Let me be honest with him: we will introduce in secondary legislation proposals setting out the process to which he referred, and we will consult on it. But, in any regard, a licensing authority would have to be convinced of the evidence that was put before it—whether it would allow the legislation to be enacted in that way; and we have already said that there will be an appeals procedure, so if the evidence does not exist it will become abundantly clear. Again, the procedure will be set out in legislation, and we are working on it.

James Brokenshire (Conservative, Hornchurch)

I accept what the Minister is saying about working through the detail, and I appreciate that his views may not be finalised, but would he envisage that in circumstances in which certain conditions would be imposed through this route, the matter would be referred to, for example, the licensing panel of the local authority? It would normally decide on licences, reviews and conditions, and it would be for it to judge, on the basis of evidence provided and any other representations, whether the imposition of such conditions would be appropriate.

Alan Campbell (Labour, Tynemouth)

Those are precisely the issues that we will be considering, because we want the legislation to be used properly and effectively. I do not have answers to those questions for the hon. Gentleman today, but I assure him that we are looking at them and want to bring forward measures as soon as possible.

I hope that I have dealt with amendment 44, which concerns financial payments, by saying that this is not a revenue-generating measure. The hon. Member for Chesterfield spoke about the balance between the local and what looks like imposition from the centre. Yes, individual town centres may have particular premises that are causing problems, but we believe that there can be a cumulative effect in an area, and there is also concern across the whole country about such premises and town centres.

It is not unusual for particular towns to have these problems, so it is important that we allow premises and groups of premises to be targeted, but it is also important that we do not get variation across the country. That would be the danger if we left this purely to localities.

There are 377 licensing authorities. They operate significantly differently and allow local application, but that can be a weakness when tackling the issue across the country as a whole. There is a trade-off between the locality and what we want to achieve across the country, which is at the heart of the argument.

We are not allowing licensing authorities to have an entirely free hand in deciding which conditions they may impose on a group of premises. Instead, they should choose from a nationally set list which will focus on certain activities and help licensing authorities deal in a more consistent way than at present with the cumulative effect of a number of premises contributing to harm.

If there is a particular problem in an area that would benefit from a licensing condition that is not on the list that the Secretary of State prescribes, the licensing authority can impose a condition on an individual premises under existing powers in the Licensing Act 2003.

To ensure that the licensing conditions that we allow licensing authorities to use will be effective in dealing with groups of premises, we are currently consulting with a wide range of stakeholders and will conduct a wider consultation later this year. I hope that in those brief and rushed remarks I have addressed the key parts of the amendments.

Sally Keeble (Labour, Northampton North)

I assumed that it would be possible for a condition to be imposed on either a shop or a shopping centre, for example, bearing in mind that alcohol-related disorders do not have to occur in a big area. There can be a big nuisance in a small area, even a little shopping centre on an estate that has only a betting shop, an off-licence, a post office—well, no longer—and a newsagent.

Would a local authority be able to use the kind of powers that are set out here to impose conditions on that type of off-licence or on-licence to deal with alcohol-related disorders?

Alan Campbell (Labour, Tynemouth)

My understanding is that they can already use the 2003 Act to deal with one premises. We need to introduce these measures to deal with groups of premises. Local authorities will be able to identify a group of premises—they might not be next to each other but in different parts of a locality, and contributing to a perceived problem in the area—and impose a condition on them. Currently, they are unable to impose a condition on a group basis under the Act.

Hugh Bayley (Labour, City of York)

With this it will be convenient to consider new clause 6—Premises licences: authorised persons, interested parties and responsible authorities—

‘(1) The Licensing Act 2003 (c. 17) is amended as follows.

(2) After section 13(3)(d), insert—

“(e) a member of—

(i) the licensing authority in whose area the premises are situated, or

(ii) any other licensing authority if there are persons living in the area of that authority or bodies in the area of that authority who fall within subsection (3).’.

James Brokenshire (Conservative, Hornchurch)

Looking at the schedule in the round—the desire to move to a mandatory condition requirement, and the more localised conditions—the main issue that it seeks to address is irresponsible drinking linked to irresponsible promotions and certain other activities. I sympathise with the Government on the need to address that issue, but the question is whether these provisions are the most appropriate way to do that, and what alternatives the Government explored before deciding on this route. Before I get into that, I am interested to know how the proposals will interlink and interrelate with the interesting partnership-based approaches taking place around the country.

I will draw on two models that are being developed, which seem to be making some ground and are being effective in the communities where they are operating. They are dealing with irresponsible drinking and cutting sales to those under age, and certainly one of them is addressing the longer-term social and educational issues. The first is the community alcohol project, which I am sure the Minister knows. It was first piloted in St. Neots and is now being piloted in other parts of the country, around Cambridgeshire and elsewhere. It draws together trading standards, the police, the education sector, and the on and off-trade to ensure consistent messages for young people, and consistent enforcement and a greater understanding of how the law should operate.

The second model being put forward on a partnership or voluntary basis is the use of business improvement districts in areas with many pubs, clubs and off-licences—night-time economy—Broad street in Birmingham, for example. I went to Kingston the other day to see the BID in operation there. That model is very much part of trying to draw together the responsible retailers—if I can put it like that—and using them to put greater pressure on those that do not act responsibly. It is not being developed in a rigid, regulatory framework, but it is being used constructively. Some of the funding that is being raised through the BID structure is being invested in safety and the night-time economy—wardens, for example.

I am interested to hear what the Minister thinks about his proposed provisions, in the context of that very good work and those very good ideas that are being developed around the country. I am concerned that a rigid approach to licensing conditions could upset or undo some of the good practice in certain parts of the country—I accept that some of my examples are localised. I am concerned that such an approach could undermine some of the good partnership working that has been established and which certainly appears from initial evidence to be making a difference by making some of those communities safer. It is also addressing responsibility among retailers and getting to young people and making them appreciate the volume of alcohol that they are consuming and starting to deal with some of the other issues that we touched on in previous debates. It would certainly be a retrograde step if those initiatives and approaches were dissipated as a result of the proposed change.

But why have a mandatory code? The Minister will be aware that an alternative proposal was set out which was the concept of co-regulation. In other words, there would be a code of practice which off-licences and on-licence holders would abide by and which would effectively become part of the licence conditions. The licence conditions would state that a licensee would undertake to abide by the terms of that code drawn up between the industry and Government. It is a variant of what is proposed here, but it certainly appears to give greater flexibility and that stronger partnership working between business, Government and local authorities by an alternative means.

Because it is not statutory, such a code has certain flexibilities of modification and involvement. Once we have certain statutory requirements in place they are set in stone: we have to come back with statutory instruments and changing it becomes quite formalistic. There are arguments about whether that is appropriate, but it is an alternative model that has been suggested as a means of setting the bar and the standards. Equally it would ensure that compliance is operated and maintained by local authorities, for example by way of licence review if the conditions or the relevant code of practice or code of conduct are not complied with.

That sense of flexibility is what one gets as a driving force behind the proposals before us today. The regulatory impact assessment states on page 10:

“The advantage of introducing a code of practice through this mechanism rather than as a standalone Act of Parliament is flexibility.”

Well, if flexibility is one of the driving forces behind one of the proposals in the schedule, it would be interesting to hear why the Government decided to reject the concept of co-regulation. It could be structured in a way to provide flexibility, while setting appropriate standards for the way that alcohol is marketed and promoted and the approach taken by licensees.

The other issue that I am still not certain about is why the conditions the Government are suggesting, and the conditions that the regulatory impact assessment seems to suggest may be introduced, are so focused on the on-trade. It is all about the size of glasses that may be used in a pub or a club. The provisions seem to be about the control of an on-licence, but as we recognised, many of the problems also come from the off-trade and the volume of alcohol that may be sold at one particular time or how it is marketed. When we say that licensees will comply with the terms of these conditions, is a balance being thought through about the conditions that should apply to off-licences as well as to on-licences?

We need to recognise that the problems of alcohol-related disorder and alcohol consumption are part of a more complex picture. We have this increasing mix of alcohol consumed at home and alcohol consumed on licensed premises such as a pub or a club. A lot of alcohol may be consumed even before people reach the pub—the concept of pre-loading, and increasingly post-loading when they get home. The Minister needs to be cognisant of the fact that this is not simply about licensed premises such as pubs and clubs. That may be where some of the problems exhibit themselves, but the problems may be a consequence of indirect activities linked to the off-trade rather than specifically the on-trade. How does he envisage that this code of practice will operate to ensure that an appropriate balance is struck?

Similarly, there has been some suggestion—I hinted at this during the evidence session when I put a question to the Minister—regarding what I think are good schemes: the Think 21 and, increasingly, the Think 25 that the industry are now adopting. To ensure compliance on under-age sales, businesses are saying that if someone looked younger than a certain age, that person would need to provide some sort of identification to assure that he or she was indeed over 18. That has been developed by the industry, and is being rolled out more widely. I support its adoption because it provides certain means, a safety net, of ensuring that the 18 age requirement is met.

If the Minister was tempted to mandate a condition on the industry to adopt a Think 25 or Think 21 strategy, it would probably be incumbent on trading standards departments to send people around who are 21 or 20—or look 20—to test that that approach is being taken. If he did that, he would almost be indirectly setting a further age verification requirement by the back door, so that if a business sold alcohol to somebody who was over the statutory age of 18, but looked under 21 or 25, it would be effectively breaking the law, the licensing conditions and everything that go with it.

That approach had been developed as a way of ensuring compliance with the 18 age requirement. By seeking to set the approach as a condition, there is more to it than appears at face value: whether mandating that age is setting a further regulatory hurdle that will have to be tested and complied with, and whether that is intended by virtue of putting good practice as best practice. Mandating the approach as a condition would bring some potential issues and problems.

Are we thinking of just micro-managing the size of glasses? Is that what it is all about? One gets a sense that that is the case when looking at the regulatory impact assessment. I am not sure about the extent to which a mandatory code would represent an intention to try to micro-manage operations in that way, and I am interested to hear the Minister’s view on that issue.

Equally, there is the issue of the application to licensees more generally. One concern that the Mayor of London has put forward in his briefing note for the clause is that

“the mandatory conditions will impose blanket regulations across the board, which will not take account of local conditions. Mandatory conditions (without exemption) that apply to village halls, or sports and members clubs could impose a significant burden on them.”

The Minister has introduced certain changes in other parts of the Bill to deal with private premises, as they may be described, but the possible unintended consequence of that is that he might set additional high hurdles or restrictions on those sorts of outlets that may not be appropriate. While I note that he is trying to reserve the approach of saying that the conditions may apply to a specific class of licensees, is that what he intends by that language, that certain places, such as community halls, might fall outside the mandatory conditions in certain circumstances? I do not know, and it will be interesting to hear from him whether the language that has been adopted addresses that.

Clearly, we have the potential regulatory burden, and one issue that was clearly highlighted in the regulatory impact assessment is the potential costs on businesses. I return to the statement in paragraph 19 of the assessment:

“However, we recognise that in the short run, there is the potential for significant transitional costs including job losses and the closure of small businesses.”

The Minister is absolutely right that the statement that we had from the British Beer and Pub Association during our evidence session was that they could not say that the regulatory impact would close down all the pubs, and that it was a more complex situation, but it is relevant that even the regulatory impact assessment contemplates that businesses will shut as a consequence of the legislation. That may not be about driving out bad businesses, but about the regulatory position that has been put in there. Good businesses that are complying with the law, being responsible, and trying to adhere to what might be regarded as good social responsibility practice, may be forced out because of the costs and burdens being applied.

What discussions has the Minister had with the Department for Business, Enterprise and Regulatory Reform on the proposals? Has it expressed any concerns about the application of the provisions? Equally, what discussions has he had on licensing more generally with the Department for—what is it called?—Communities and—[Hon. Members: “DCLG.”] Yes, DCLG—but in fact the Department for Culture, Media and Sport is the Department I was looking for; there are so many different acronyms for Departments now. DCMS’s review of the Licensing Act noted concerns about the regulatory burdens and the flexibility within the licensing arrangements, and said that more flexibility within the existing licensing regime may be more appropriate. How is this consistent with that and how does it fit in?

We have touched in detail on the fettered discretion of local authorities regarding the nature of the conditions and how the licensing review fits into that. It is difficult to understand properly how it fits together until the code is published, so our comments have to be reserved until the final code is revealed and the consultation has been completed. I still feel that we are debating in a vacuum, notwithstanding the Minister’s assurance on the consultation, because we do not know the end result—so we can debate some of the principles, but as always the devil is in the detail.

I am genuinely sorry that the hon. Member for Stourbridge cannot be here this afternoon, and I understand why. Her proposal, new clause 6, has merit and I am happy to speak in support of it. My understanding of the new clause is that it would add councillors in local authorities to the list of interested parties pursuant to the licensing regime. One real frustration over the Licensing Act has been that local councillors have not been able to object or make representations directly, because they lived more than 100 m away from the relevant premises. The approach to who can make representations in relation to a licence is restrictive, which has been a problem.

Sally Keeble (Labour, Northampton North)

I agree with the issues about representations, but it is possible for elected representatives to make representations, provided they have the agreement of a local resident. Therefore, it is possible, but there is a process.

James Brokenshire (Conservative, Hornchurch)

I agree that, in essence, councillors, and indeed Members of Parliament, can do that. I have had to say that I was appointed by a particular resident to make representations on their behalf as their agent. It seems so perverse and peculiar that we have to go through that formal process of ensuring that we have someone who lives within 100 m of the licensed premises. It would be sensible, particularly for ward councillors, to be able to have an interest in applications and in making representations, given that they are supposed to be the representatives of the people living within that area. Therefore, I sympathise with the purpose of new clause 6, which appears to embody those points and add them into the Licensing Act. It avoids the formulaic and unnecessary process the local councillors need to go through to participate in something that directly affects their ward. After all, they would be able to get involved on issues such as planning.

I should be interested to hear the Minister’s response to new clause 6, because it touches on a relevant and serious point. I hope that it will be given some consideration and that this debate about the amendments and the new clause tabled by the hon. Member for Stourbridge will be reported to her.

Sally Keeble (Labour, Northampton North)

On that last point, I must say that I was taken aback at having to produce a signed consent form from a local resident agreeing to my representing them in a licensing application. I, like the hon. Gentleman, thought it a bit odd, given how it is normally accepted that when we, as elected representatives, speak on behalf of our constituents, we do just that. The only justification I can find for the provision is that the situation under discussion involves a quasi-legal process, so we also perform a function that has a direct financial bearing on local businesses. Although I agree that the measure goes strongly against a particular principle, it will add rigour to our thinking and representations. Like the hon. Gentleman, I shall be interested to hear my hon. Friend’s response.

Schedule 4 goes to the heart of the Bill, which is why it is infuriating that we will have so little information about the proposed code and so little access to the process until the code is published. It is also why I ask my hon. Friend the Minister for the definition of reasonableness. We all say that, by and large, drinking in pubs is reasonable. Indeed, many of us think it reasonable to go to the corner shop to buy some alcohol, and to do so outside our former licensing hours. We accept that, but we then end up with the current binge drinking problem among young people, and everyone says, “How did we get here?” I am concerned that, unless we are clear about what society considers to be the reasonable drinking and selling of alcohol, we will end up with a mandatory code that does either too much or too little.

I am concerned also because the opportunities to legislate on this matter are extremely rare. I first became interested in the happy hour issue when a constituent’s son died after following a happy hour promotion at a pub. He got very drunk and behaved in what was thought to be a threatening way to a man, who thumped him quite heftily. Unfortunately, the man was a doorkeeper at a pub in town, and my constituent’s son fell over, hit his head on a kerb and died a couple of days later. He was not remotely threatening, but his behaviour was read as such, and if he had not been drinking, he would not have behaved in that way. He was a student, did not have much money, was in a pub with a special promotion, and that is what happened. Moving from that day to this, we reach the point where regulations might have to be put in place. However, we must get them right, because, if it is another 10 years before such an opportunity comes along again, a lot of mischief will be done, the public will have to live with the consequences of it and it will be impossible for us to regulate.

I am not so concerned about the question, “Why nine?” There are fewer than 10 commandments, and that is the only significance I can see in the figure. I am, however, extremely concerned about what the nine conditions will be. It is important that they are seen, not just by the industry but by the public, as the nine key things that can be used to manage one of the public malaises of the present time—the chronic rise in binge drinking, particularly among young people. This is a Public Bill Committee, not a policy debate, so I will not go into all the statistics; those are on the record not only on crime but also on health consequences for young people.

It is extremely important that we know what the nine proposed conditions are. I agree with the hon. Member for Hornchurch; if they concern types of glasses and similar matters, people will think that we have taken leave of our senses. Everybody will accept that there are much bigger fish to fry than the issue about glasses, important though that is.

I completely accept the point made by the hon. Member for Hornchurch, my hon. Friend the Minister and others that the bulk of the industry is perfectly reasonable, operates properly and wants to help people live and work in a decent society. There are many other ways in which local authorities, pubwatches and other bodies—I have a very good pubwatch in Northampton—can work to mitigate some of the downsides of the night-time economy and drinking generally. However, those are special interest groups; some are in industry, some in local government and some are law enforcement agencies. They are not generally collective upholders of the public interest and do not have powers to regulate within it. That power rests with the Government, and that is why this legislation is so important.

In the discussions so far, the lists and names that I have heard are all honourable organisations and I would not question their motives or integrity. Some, such as Alcohol Concern, are outstanding. I have deep respect for the retailers and know that some do outstanding work in managing their businesses properly. However, such groups have particular interests at heart. I am concerned that I have not heard the list of those representatives of the public interest with whom my hon. Friend has spoken. Secondly, I have not heard what might be in the code. It is clear that discussions have been going on and that people in industry know what the discussions are about. It is wrong that certain sectoral interests should have access to that information while MPs who are debating this matter and making decisions on it do not.

My hon. Friend is shaking his head. Maybe no one has seen a list, but there will have been discussions on different issues and points of concern for the industry. We are looking at a matter that is of great concern to our constituents, and MPs should know roughly the content of those discussions and which general areas are being considered. I hope that my hon. Friend will say what those areas are in his reply, but in case he does not, I have a few suggestions.

The first suggestion is about minimum pricing. That issue is deeply controversial—I introduced a ten-minute Bill on the subject. Whenever I ask about it people say, “Don’t worry; we are not doing that but we are doing something about happy hours.” I do not accept that doing something about happy hours is compensation for not doing something about minimum pricing or pricing more generally. The general consensus is that happy hours are not a good idea. It is accepted that they should be regulated against.

The hon. Member for Hornchurch has repeatedly mentioned a change in drinking patterns. I cannot conceive why anyone would want to stop people buying a pint of beer for 89p or 99p, as in some of the special pub promotions, when they are not being stopped from going to a supermarket and buying 3 litres of a much stronger cider—White Lightning, say—for something over £1. A Department of Health study reveals that price and availability are factors in leading to people drinking too much and causing antisocial behaviour. If price is a factor, then one has to hit both the happy hours and the White Lightnings, especially since White Lightning benefits from the lower tax rates that apply to ciders. It seems the tax system rewards the drinks industry for producing a noxious drink that makes people very drunk very cheaply. I therefore want to know that there will be a level playing field between the on and off-licence. We have not had much discussion about the off-licence. On the pricing issues, the regulatory framework is roughly the same. One can take the same attitude to price, whether people are drinking in a pub, or going to the supermarket and then going to the pub, provided they are over 18, to get blind drunk there.

The second suggestion concerns labelling, which goes back to the issue of responsibility and what is reasonable in the sale of alcohol. Do people actually know what they are drinking? If I go to a pub or buy something from an off-licence, I normally have no idea how many units I am drinking. I very much hope that one of the mandatory conditions will stipulate that drinks are labelled or that people are told how many units they are drinking. Again, it would have to apply to an on and off-licence.

When I introduced my ten-minute Bill and I talked about this to the industry, they said, “Well, that’s very stupid. The kids would look at the strength of the drink and the price, and then work out how they could get really drunk cheaply.” But it is important for the ordinary, reasonable drinker to know how much they are drinking, so that they know whether they will get into trouble if they drive, or to limit their intake for health reasons. I wonder, therefore, whether the code will deal with labelling and whether that will include on and off-licences.

The third suggestion concerns alcohol displays and whether they will be in the code. We know that to protect children from the evil consequences of smoking, cigarettes must be hidden under the counter and not even displayed behind the counter. But the same child going into the corner shop can trip over a whole shedload of super-strength lager right in the middle of the shop on their way to buy the bread for tea. If we think that exposure to something that is damaging to health should be managed, we ought to look at the issue of alcohol displays.

In the case of convenience store displays, the store is also the place where people buy alcohol. In Scotland, they have taken quite an extreme approach. I understand that parts of Australia have adopted a similar approach and I personally think that they are rather severe given the size of some corner shops. I would want the code to cover such aspects as what is thought to be appropriate for a corner shop whose primary purpose is to sell food, or for a supermarket, where there are issues about whether the alcohol is in one place or pepperminted around the shop. How does that relate to displays of drinks in pubs and clubs? It is really important, again, that the code deals with off-licence as well as on-licence.

One reason why it is important to know what the thinking is and what the possibilities are for the code is that consultation with the public, who are concerned about the issues, takes much longer than Departments give credit for. Three months, which is the usual time given, is just about enough to get through the cycle of local community meetings. If there is to be a proper consultation, there needs to be the opportunity to take the issues out and look at them carefully. Being given a list of nine and asked, “This is a proposal, what do you think of it?” is not quite the same as having real discussions to identify the public’s priorities and looking to codify them in an organised fashion. I hope that my hon. Friend will say what timetable he is proposing. If the list of nine is to be drawn up, or if the draft code is to be ready by the time of Royal Assent, what will be the options for change? At what point will we as Members, or the public, get to see it?

One reason why it is of such concern is that some of the decisions that have to be made might seem small to the people drawing up the code or to the industry, but are massive to the people out there living with the consequences. I shall provide my hon. Friend with one example. Convenience stores—corner shops—rely on alcohol sales for 14 per cent. of their turnover. Anything that affects their viability—such as a code that set the wrong standards for in-store promotions or the amount of space devoted to alcohol sales—could put a corner shop out of business. The impact on some estates—we all know them: the post office is gone, the newsagent is struggling—would be profound indeed. There needs to be a discussion with the public about their concerns and priorities. Do they want to see the sale of alcohol managed to prevent the antisocial behaviour that sometimes occurs after youths have been out buying tins of alcohol in the local shop? Or would they prefer to find some other way to manage drinking? There may be a risk to the future of the shop. There are some major issues, which it is important for the public to be in a position to discuss. As I said, the schedule is probably the only chance that we have to deal with the issues, and may well be the only chance for a long time.

As others have said, the pattern of drinking is shifting. It has shifted from going down to the pub, having a few drinks and going home, to getting cheap alcohol from off-licences, going home to drink it, then going out and drinking again afterwards. Another issue is access to different types of drinks. I am concerned that we might end up with a code that is driven by yesterday’s agenda and which does not catch up, anticipate and deal properly with the current patterns of drinking and their impact on the well-being of our constituents and their community.

Everything that I have seen, and the input from my constituents, shows that this is a major area of concern. I receive much fewer complaints about pubs and clubs than about the drunken antisocial behaviour of people who have had drink elsewhere. I would hate it if we had a code that was toothless, or had the wrong teeth, and we then had to wait another 10 years for another real opportunity to deal with the problem again. It is important that we get this code and I ask my hon. Friend to tell us in exactly which areas thinking is going on that will lead to the choice of the nine items.

Can my hon. Friend also bring forward the publication of the draft? I am hoping to do an online consultation—I have already written to ask if he will come to launch it. I want to be absolutely sure that all the different interest groups that have expressed concern—the police, doctors, head teachers, the National Union of Students—get a really good chance to have their input as to how they want to see drink managed and regulated in our society so that it can be a source of pleasure and we can reduce the incidence of antisocial behaviour and health and other problems linked with it.

Paul Holmes (Liberal Democrat, Chesterfield)

I will address my points mainly to new clause 6. It was tabled by the hon. Member for Stourbridge. Unfortunately she cannot be here today, so I have added my name to it so that I can also speak to it. The initial arguments for the new clause could be taken as part of all the issues we have been repeating throughout these debates about the need for devolution and decentralisation, but let us park all that on one side on this occasion, because it is a new clause that has been submitted by a Labour Member. Those on the Conservative Front Bench have also expressed their support for it and we also support it, so it has a remarkable degree of cross-party support.

The clause is not asking the Government to reverse the whole thrust of central direction and give local government more power; it is asking for a simple, logical amendment or extension of a power that is already in the Licensing Act 2003. The issue is that, at the moment, a ward councillor can only make objections to the licensing authority if they are acting directly on behalf of a resident of the ward. The hon. Member for Northampton, North said that that is not a problem because members of the ward can approach the ward councillor and take the issue up. It seems strange that the councillor cannot do so directly and it raises particular problems if they can act only on the open public instruction of one of their ward members. There is the basic, democratic principle that an elected ward councillor should surely be able to make representations about something that happens in their ward, but particular problems can arise.

I want to give an example, from a London councillor whom I know personally. In 2007 a nightclub in inner London was raided by the police. As a result, a premises licence review was instigated. Local residents who were concerned about the club and had sensitive, confidential information about drug dealing on the premises went to their ward councillor and asked if the councillor would raise their concerns in the licence committee hearing. However, under the present licensing regime from the 2003 Act that can only be done if the residents will publicly declare who they are. As we were dealing with local residents living near a club, where drug dealing was taking place, the residents were too frightened and were not prepared to go public. The council would have done so but could not, because the provisions of the Licensing Act 2003 state that council can do only so when acting in the name of publicly declared local residents. The licence holder’s lawyers were therefore able to effectively gag the elected representative, thus requiring the councillor to leave the committee hearing without putting forward the concerns about drug dealing on the premises.

It seems strange that although the 2003 Act makes provision for licence reviews and for local voters to make objections, it does not automatically allow an elected local councillor to do exactly the same. As a general democratic principle, I urge the Government to look at new clause 6, since it has obvious cross-party support in most cases. It is not only a democratic principle, however, but a practical issue of residents who live above premises that cause problems being simply too scared to go public and give evidence, whereas their ward council could do so.

A temporary events notice works on the same principle, in that the police can object, but local councillors, the local council as a whole, and the environmental health authority cannot, so they have to lobby the police to raise an objection. A new schedule that I tabled on the matter was not selected for debate, but the subject follows the same principle as the issue of a ward councillor on a licence review. Why not simply allow a local authority’s ward councillors to make objections, rather than have them follow a circuitous route that does not always lead anywhere? The argument can be seen as being about devolving power, but if we leave that to one side, it is actually about making a simple change to legislation introduced by the Government in 2003 that would allow it to work much more effectively and allow local elected representatives to do their job properly.

The Bill and the schedule aim to deal with the problem of sales of alcohol to under-age people from on-premises as well as off-premises. The Bill also aims to deal with the issue of premises selling cheap alcohol in happy hour deals and all you can drink deals. However, it misses the opportunity to deal with the much greater problem of the sale of cheap alcohol from off-premises. While some pubs and clubs have happy hours, all you can drink deals and so on, the vast majority of supermarkets take part in loss-leader sales of alcohol at very cheap prices, and some of the larger off-licence chains do so, too, on a regular basis. In my experience, the majority of complaints that I receive from my constituents relate to the problem of cheap alcohol getting into the hands of people, both under and over age, who then drink it in public places. I obviously receive complaints about Chesterfield town centre, where the central pubs and clubs are located, and some complaints about Brimington and Staveley town centre, but the vast majority of complaints that come to me, and as far as I can see from talking to the police, that go to them, concern young people, some over age, many under age, drinking cheap alcohol that they bought from off-licence premises, in the parks, children’s play areas, cemeteries, bus shelters, and all the other public areas where they can gather. They pose much the greater problem, yet the Bill, despite have some welcome measures, seems to sidestep that.

In some countries, supermarket customers who wish to buy alcohol must go into a separate, sectioned-off part of the store rather than finding it while walking through the aisles containing food, sweets and frozen goods. The alcohol is not just placed in two or three separate aisles on the premises: the customers actually have to go through a door into a separate section. Why can such simple measures not be considered? When will the next Bill in which we could take those steps come along and how big a missed opportunity will this be if the Government do not respond to that?

Alan Campbell (Labour, Tynemouth)

We have had a wide-ranging and useful debate. I will begin with the comments made by the hon. Member for Hornchurch on community alcohol projects and the work done by St. Neots, and business improvement districts. I welcome both projects, which play an important part in helping to address the issue, and hope that they do well. The hon. Gentleman mentioned the importance of putting pressure on bad premises, particularly in business improvement districts. That is in the interests of not only the wider community, but good premises. He also made a point about problems in parts of the country, as he described it, but unfortunately few parts of the country are not touched by the issues we are talking about, and we believe that we need to do more about the bad premises to which he referred, using a combined mandatory and local approach.

The hon. Gentleman asked whether we have had discussions with the Department for Business, Enterprise and Regulatory Reform and other Departments, and the answer is yes, there have been wide-ranging discussions and sign-up by the Departments, which bring a slightly different perspective to the issue, but we share a view across Government and acknowledge the importance of flexibility in what we are doing. There ought to be and is concern across Government about the impact of regulation. We believe that the Bill’s measures allow flexibility but are not over-burdensome.

The hon. Gentleman mentioned village halls. Proposed new section 19A(1) states:

“The Secretary of State may by order specify conditions relating to the supply of alcohol and applicable to all relevant premises licences or relevant premises licences of a particular description if the Secretary of State considers it appropriate to do so”.

That gives us an opportunity to look at how wide ranging the mandatory part of that should be. Of course, that will depend on what the code will look like. My hon. Friend the Member for Northampton, North has been a stout campaigner on that issue and raised some important points. I refer again to the commitments I made earlier to send her and other members of the Committee a list of all the bodies we have talked to and to send a copy of the draft code as soon as possible, although I cannot give a firm date. I remind my hon. Friend that we are looking at wider, extensive consultation, to use the Home Secretary’s word, and that there is a further parliamentary process before those measures can be brought in and at each stage they will be open to influence.

My hon. Friend asked what will be in the code, but I cannot give her specifics because we are trying to determine the extent of and obtain sign-up to what will be in the code. The number of conditions will not have to be nine, because the Bill stipulates nine as a maximum figure. We would not want to start with a blank sheet of paper in any consultation. There has already been wide discussion of many of the issues. Committee members could already agree on areas that are commonly of concern, such as irresponsible promotions, whether on or off-sales. She said, and to some extent I agree with her, that if it is just about matters such as glass size it will not be enough. Of course it will not be enough, but nevertheless there is concern about consumer choice and the size of glasses or whether free tap water is available in pubs. We do not have to consume alcohol in a pub, so why do pubs not supply free tap water?

The licensing provisions are not concerned primarily with reducing consumption, as my hon. Friend acknowledged in her remarks, but with reducing crime and disorder. It is important, of course, that we discuss widely and look at matters such as labelling, units and all of those health-related issues. That is not the specific focus of this legislation.

A number of hon. Members have talked about pricing. The price in pubs has never been the same as in supermarkets. There has always been that difference and we can argue about how great a one it is. I take seriously the comments made by my hon. Friend about White Lightning. She also talked about displays and loss-leaders, and I acknowledge that those are areas of concern. Whether they are addressed through this particular measure or others, they are nevertheless areas of concern and include the issue around units.

The hon. Member for Hornchurch asked why we need to go down this route if one has the community alcohol project, the good work with industry and all of those things. The simple answer is that when we asked KPMG to conduct an independent review into how standards were operating based on the voluntary sign-up to the social responsibility standards, it concluded that there was not widespread recognition of those among alcohol retailers, and that they had little or no effect on reducing crime and disorder. We welcome the work being done by industry and the voluntary sector but that voluntary approach has not worked sufficiently, and in some cases it simply has not worked. Therefore, we need to go further by introducing a mandatory code to make people step up to the mark in those areas where there is considerable concern.

I keep going back to the enabling power, which is what we are discussing here. It is an enabling power and the mandatory conditions will come later. The whole point is to attack the binge drinking culture, not to attack responsible drinkers. Pre-loading has been mentioned on a number of occasions. The off-sales sector needs to take that issue very seriously. Whether it could be addressed by the approach we are talking about is difficult. How could that be put into the legislation? If, having pre-loaded, a person then goes out, drinks more and gets into trouble in a pub or club, that is an enforcement matter. We have to be careful about what we can or cannot do. We are aiming at the binge drinking culture and its effects. We are not aiming at the people who go out day after day, work hard, come home and go to the supermarket at the weekend to buy something for a decent meal and a bottle of wine. They are not the people this legislation is meant to focus on. Of course, they need to drink their wine with knowledge about the possible health effects, but they are not the ones who by and large cause the trouble. It is the ones who do cause trouble that we need to get at.

Paul Holmes (Liberal Democrat, Chesterfield)

Does the Minister accept that the same principle applies to people who go to pubs? Most people go to pubs and drink responsibly but the legislation is looking to impose a sort of minimum pricing system by apparently preventing happy hours and all you can drink offers. We do not want to penalise responsible drinkers in pubs—I would judge myself as one—but with the off-licence trade, why not look at applying minimum pricing, without penalising the sensible drinkers?

Alan Campbell (Labour, Tynemouth)

The minimum pricing argument is very interesting. We have ruled out, as far as the mandatory code is concerned, minimum pricing, partly because of the reasons we discussed earlier. The evidence we have suggests there would have to be a dramatic increase in pricing in order to have a significant effect on people’s drinking habits. That is a clear message. Rather than the one or two pence in tax on alcohol having an effect, to be honest if someone is going out and spending £50 or £60 in an evening a small increase in price will not make much difference.

Sally Keeble (Labour, Northampton North)

The awful killing of the young goth girl was by a young man who had drunk so much. To get drunk cost him only a fiver, not £50. If it cost £50 to get drunk, I would say, well fine, not many people get drunk. However, it is a fact that you can get plastered for a fiver on very cheap alcohol that has had a tax concession or is a loss-leader. Very cheap alcohol is lethal, relates directly to crime and needs to be tackled.

Alan Campbell (Labour, Tynemouth)

I do not disagree with my hon. Friend that there is an issue around loss-leaders, nor do I disagree with her when she says that there is an issue about the level of taxation. For example, it is true to say that in the Scotch whisky industry the levels of taxation have been varied in the past predominately to protect the jobs of that industry. Someone could make the argument, with the price of a bottle of Scotch whisky now compared with what it was, and compare it with the price of beer or wine, and there may well be an issue there. However, what we are talking about here is whether we have minimum pricing. The Government have taken the decision, particularly at this time, not to make it a mandatory condition. If, however, anyone wants to take it up as a local condition, the same difficulties with minimum pricing would actually apply. Minimum pricing in one local area and not in another area would presumably breach competition law. Minimum pricing—I am not saying that we are not prepared to look at minimum pricing and I am not saying that there is still not a discussion to be had—is a complex issue and our present position is that we do not want it to be a mandatory condition.

With regard to new clause 6, I am slightly bemused by the idea that, by virtue of the Licensing Act, a local councillor has been prevented from doing the job that we want that councillor to do. There are two ways, of course, in which a councillor can act. They can act if they are a resident in that particular area. Reference was made to a club that was associated with drugs. There is an issue far beyond licensing if there is a drug problem that needs to be addressed, but if the councillor is a resident in that area, why can he or she not, even if all the other residents are scared, begin to take up that issue themselves, not as a councillor but as a resident? They can do that.

Paul Holmes (Liberal Democrat, Chesterfield)

Obviously, where the ward councillor lives in the ward, they can do that, but of course not all live in their ward. Sometimes they live a yard over the boundary, sometimes they live quite a way away, especially in urban and city areas. It is an issue and the Local Government Association, which obviously deals with many such issues, feels strongly that this is an obstacle, and I gave one particular example from the inner London borough.

Alan Campbell (Labour, Tynemouth)

It is a long-running argument and I understand that. I sometimes believe that there is some misinformation or misunderstanding about the true powers that a councillor would have as a resident in an area. But of course, they also have influence in an area provided someone brings that issue to them. I would—this is my reply on new clause 6—be very careful about putting a councillor in a position where for example they became an interested party themselves. If they are part of the licensing authority, there is the issue of them wearing two hats. We have to be conscious of that.

Paul Holmes (Liberal Democrat, Chesterfield)

I had thought about raising that issue, but perhaps we should not go down that track because there is the whole issue of the restrictions on councillors and how, if they are part of the planning authority and the licensing authority as well, they are hamstrung. They cannot represent their ward because they cannot speak out on something in their ward because they are then banned from voting when it comes to planning committee or licensing. That is a different area and not specifically for us, but the Government need to look at the issue. It seems strange that a councillor is elected to represent an area but then banned from actually saying anything on planning or licensing issues that are really getting local people wound up.

To return to the intimidation point in the example that was given, local residents who live next to a club or pub, or wherever the problems might be, are scared, whereas an elected representative might still be scared but is less likely to be. They took on the job of being the elected representative so that they could take up such issues, but they are not allowed to under the 2004 Act in those circumstances.

Hugh Bayley (Labour, City of York)

We will have to leave planning issues out of the discussion.

Alan Campbell (Labour, Tynemouth)

Thank you, Mr. Bayley. We are defining circumstances in which an individual might believe that they are not able to do the job that they thought they were being elected to do. In the example described, I am not sure that it is only the residents who are concerned about that club. The police will have concerns and they can play their full part in that process too. I am not quite sure that I would agree with the hon. Gentleman on that.

The hon. Gentleman could say that one of the reasons why councillors need to be seen in a particular way in the light of the legislation is the fact that any attempt to change a licence would be the basis, heaven forbid, for a “Focus” leaflet and a campaign. We need to make sure that it is part of the political process but we need to make sure that there is not a party political knockabout every time that anyone wants to change their licence in a particular area.

The hon. Gentleman mentioned temporary event notices. We have discussed that before in the context of lap dancing, and I told him that we are concerned about this. Officials in my Department are looking into the matter. It has been drawn to the attention of the Department for Culture, Media and Sport and it has agreed to consider it too, not just in the context of lap dancing but in the context to which the hon. Gentleman referred. If we are talking about community empowerment, whether it is for licensing or lap dancing, we have to make sure that as far as possible that extends not just to the police.

There are issues about members of licensing authorities and licensing authorities and what role they would play if they were in a different scenario. At the end of the day the licensing authority must be the adjudicator between a responsible authority and an interested party. We have to maintain that gap between the role of the authority, the interested parties and the licensee. Our fear is that if the new clause was accepted, that distinction would be blurred. One of the effects might be that the impartiality of the authority could be called into question. It is not about weakening the powers of licensing committees. To be honest, I wish that they would make more use of their powers. They need to be more robust. People need to have more confidence in licensing committees. I am not absolutely sure that his proposal would do very much to address that impartiality.

I understand that the Local Government Association supports the new clause. I hope that I have not given the impression that we are not sympathetic to it. We are. My officials met recently with representatives from the LGA and other stakeholders to discuss mandatory and general licensing conditions, and we will continue to work with them both in both this regard and to consider the issues raised by the new clause. I hope that the new clause will not be pressed to a vote.

Clause 32

Vernon Coaker (Labour, Gedling)

I beg to move amendment 259, in clause 32, page 23, line 36, leave out second ‘the’ and insert ‘a’.

Hugh Bayley (Labour, City of York)

With this it will be convenient to discuss Government amendments 260, 191, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289.

Vernon Coaker (Labour, Gedling)

Good afternoon Mr. Bayley. A new voice needs to be injected into the proceedings. This is a very important clause. I know that hon. Members on both sides of the Committee have important points to make, but they also want to make some progress. It would be right for me to put on the record the fact that the hon. Members for Hornchurch, for Bury St. Edmunds and for Chesterfield, as well as other Opposition and Labour Members—indeed, all members of the Committee—support the need to try to take from criminals more of their ill-gotten gains. There is no divide between us on that point. I hope that it is helpful to put that on the record, notwithstanding some of the discussion that will take place on part 4.

All hon. Members are tracking these amendments very carefully, because the issue is a little complicated. I found it complicated; I am sure that those who grouped the amendments found it the same, too, and I thank them for their efforts. Government amendment 191 is a minor and technical amendment to the new power under the Proceeds of Crime Act 2002 to seize and retain property in anticipation of having to sell it to raise the sum for an outstanding confiscation order in future. Once property has been seized, the new powers will provide for continued detention. An officer may initially detain seized property for 48 hours. In Scotland, if there is no restraint order or the officer decides not to apply for one, he must obtain a detention order from the sheriff. This amendment provides that an appeal not to make the order or an appeal against a decision on discharge or the variation of such an order must be made in 21 days. That is the standard time limit for an appeal in Scottish law, rather than 30 days, as currently drafted. I apologise for that initial error, and I thank Scottish officials for advising us accordingly.

Government amendments 266 to 269, 273 to 278, 282, and 284 to 286 will add to the new provisions in the Proceeds of Crime Act that relate to seizing, detaining and selling property to meet the value of an outstanding confiscation order. They merely provide that, from the amount paid in settlement of a confiscation order, the police and other law enforcement agencies can claim back their reasonable costs in having to store and sell the property. It is entirely reasonable that the additional cost that falls on the police and others is reimbursed, much as it is at the moment under the 2002 Act in respect of receivers. On a matter of budgeting, they receive their costs after the event, rather than being funded up front.

It is important to note that the amount is paid from the settled amount, so no additional burden of payment falls on the defendant. This is simply to do with the distribution of the money that has been collected. It is also a safeguard, as the magistrates court determines what the reasonable costs are, thus ensuring open and independent oversight of the costs that are incurred. Government amendments 259, 260, 270, 272, 279, 281, 283, 287 and 289 will add to the new provisions in the 2002 Act. They simply amend the provisions on distributing sums received in consequence of payment of a confiscation order. Notably, they provide that, where a court has determined the reasonable costs that the police or another law enforcement agency have incurred, those costs are paid from the recovered amount. They also provide for the court to make directions on any payment. Therefore, any third-party interests in the property can be paid back.

Government amendments 271, 280 and 288 are merely technical. They will remove from the Bill proposed changes to the 2002 Act, and those changes will be made in schedule 6. Nothing is changing; it is just tidier, I am advised, to make all the consequential amendments that flow from the changes to the 2002 Act in one place. The amendments to schedule 6 will be tabled in due course.

James Brokenshire (Conservative, Hornchurch)

I welcome the Minister’s introductory remarks in relation to part 4, as Her Majesty’s Opposition support powers to ensure that the ill-gotten gains of criminals and organised crime are seized and returned where appropriate. Our difficulty with part 4 is its extent and nature, the protections that it affords and the judicial oversight that may apply—in other words, its practical import. The Minister will be aware of the comments made by the Bar Council during the evidence session, when it noted that this was a significant change, rather than merely a tidying-up exercise. We will come to some of those revisions as we work through part 4.

The Minister’s explanation of some of the amendments in this group was helpful. I would appreciate further clarification on amendment 267, which allows the new right to charge. The Minister said that the amendment was not adding a extra cost but was setting out the regulation and the approach to be taken on payment. Proposed new section 67AA(3) states:

“If the court makes a determination under this section the appropriate officer is entitled to payment of the amount under section 55(4)”

of the Proceeds of Crime Act. However, yet section 55(4) of that Act does not provide for an amount. It makes provision for the order in which certain payments are to be made. Am I missing something? I appreciate that we are considering Government amendments to a provision that amends another measure, so it is not necessarily easy to follow this, and the Minister may not be able to give me a straight answer to my question and may need some assistance. Some of these technical issues are a little difficult to follow. Proposed new section 67AA(3) seems to be about a payment, but the section to which it refers does not appear to mention payment. Perhaps I have misunderstood something. The Minister, or a note passed to him, may be able to elucidate that point.

Vernon Coaker (Labour, Gedling)

I am advised that it is the payment of costs. I wish to reiterate that the purpose of the amendment is simply to ensure that the amount paid is the reasonable cost as determined by the magistrates court. It will be for the court to determine what those reasonable costs are; it is not about trying to ensure that somebody profits from the exercise. That judicial oversight is built into the Bill. The provision refers to the payment of an amount that the court will determine as the costs incurred by the law enforcement body in storing the detained property, and as such will encourage that body to do more of this work, knowing that it does not have to incur a cost.

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 87, in clause 32, page 24, line 4, leave out paragraph (c).

Hugh Bayley (Labour, City of York)

With this it will be convenient to discuss the following: amendment 88, in clause 32, page 24, line 17, leave out subsection (10).

Amendment 89, in clause 32, page 24, line 28, leave out paragraph (c).

Amendment 90, in clause 32, page 24, line 39, leave out subsection (10).

Amendment 91, in clause 33, page 25, line 17, leave out paragraph (a).

Amendment 92, in clause 33, page 25, line 21, leave out paragraph (e).

Amendment 94, in clause 35, page 26, line 30, leave out paragraph (a).

Amendment 95, in clause 35, page 26, line 34, leave out paragraph (e).

Amendment 96, in clause 36, page 27, line 10, leave out from ‘or’ to the end of line 15.

James Brokenshire (Conservative, Hornchurch)

These amendments relate to the application of the power of confiscation and the power to retain seized property so that it is available to accredited financial investigators. My first question is whether it is appropriate to grant those significant powers to people who are not warranted police officers or officers of the Serious Organised Crime Agency or Revenue and Customs. Accredited financial investigators are simply defined as such by order of the Secretary of State. Will the Minister confirm who is considered to be an accredited financial investigator and what plans he has to extend that definition, if at all? I acknowledge that this has been a steady move by the Government over a period of time. In their 2006 consultation document, “New powers against organised and financial crime”, they said:

“Financial investigators are becoming more independent from police in their work and therefore to give them the full range of powers would be beneficial.”

The example given to support that was police staff designated by chief constables to have certain powers under the Police and Criminal Evidence Act 1984.

What controls and standards are expected of such financial investigators? How independent are they and what checks exist to ensure that they use the powers appropriately? In its report on the Assets Recovery Agency published in 2007, the Public Accounts Committee was highly critical of the agency’s role in supervising the financial investigators’ regime:

“The agency has not been adequately monitoring the accreditation of trained Financial Investigators, despite its obligation under the Proceeds of Crime Act 2002. It did not know, for example, how many active Financial Investigators should have been completing Continuing Professional Development activities in order to retain their accreditation and it was not monitoring completion of these activities.”

What assurances can the Minister provide that the situation has improved? Given the complexity and nature of the powers that are at issue, it is pretty significant if we are not sure how many financial investigators have retained the qualifications to fulfil the job. Given the PAC’s comments, is it appropriate to grant further powers to financial investigators in the light of this, and what steps have been taken to ensure that the accreditation process is robust and reliable?

Why are the powers to retain seized property that are proposed to be granted to accredited financial investigators in England, Wales and Northern Ireland not intended to apply to Scotland? The reference to accredited financial investigators is conspicuous by its absence from proposed new section 120A of the Proceeds of Crime Act 2002. Why or how will this impact on operations across the whole of the United Kingdom?

Vernon Coaker (Labour, Gedling)

Let me deal first with my response to the hon. Gentleman’s amendment, while I receive advice about Scotland.

The National Policing Improvement Agency trains the accredited financial investigators. My understanding from the people there is that they take this area of work seriously, putting a great deal of credence in it, because they understand, with the additional powers given to accredited financial investigators, how important is the need to ensure that they are accredited properly. It is something that the NPIA has been working extremely hard on over the past period of time.

The hon. Gentleman asked me about monitoring. The monitoring takes the form of monthly activities and work-based evidence submissions, via the NPIA’s financial investigation professional register. There is a dip sample of evidence submitted in support of continued correct use of those powers. If they see in that dip sample that there is inappropriate or incorrect use of the powers, the NPIA has the power to withdraw that accredited status. From that point of view, that is a significant step forward.

The hon. Gentleman also asked about numbers and, it might be of interest to the Committee, to learn that the latest total, from February 2009, is 2,135. Of those, the majority—1,311—are warranted police officers, the remainder civilian investigators. I shall answer his point about Scotland later, when I receive advice. We see the role of accredited financial investigators as a particularly important part of this whole area of work. I hope that the assurances that I have given him about the importance of training are helpful.

There are no accredited financial investigators in Scotland. Scotland has no need for accredited financial investigators according to the law enforcement agencies there—only police are used. Given that that is the case, it would not be appropriate to include anything with respect to Scotland in the amendments. With that, I hope that the hon. Gentleman will see fit to withdraw his amendment.

James Brokenshire (Conservative, Hornchurch)

There is still a question of why there is the distinction, but we can leave that for another day. I beg to ask leave to withdraw the amendment.

Clause 33

Vernon Coaker (Labour, Gedling)

I beg to move amendment 150, in clause 33, page 25, leave out line 2 and insert—

‘(1) The Proceeds of Crime Act 2002 (c. 29) is amended as follows.

(2) After section 41 insert—’.

Hugh Bayley (Labour, City of York)

With this we may discuss the Government amendments 151 to 155, 164 to 166, 172, 183 to 185, 192 to 200, 202 to 204, 210, 211, and 239 to 241.

Vernon Coaker (Labour, Gedling)

I have spoken to the hon. Members for Hornchurch and for Chesterfield, and I will move some of the Government amendments formally. On others, however, I will read into the record the facts, which may be of help not only to the Committee, but also to other hon. Members.

The amendments add to the new provisions in the Proceeds of Crime Act, as set out in clauses 33 to 38. Clauses 33 to 35 introduce a new power to continue to detain property seized under other powers where the relevant property is subject to an existing restraint order. As the Committee knows, a restraint order is an interim measure under the Proceeds of Crime Act, which prohibits persons from dealing with or disposing of specified property. A restraint order does not, however, provide for a general power to retain property. Although restraint orders effectively freeze property, that property may remain in the hands of a defendant. That obviously carries the risk that the defendant may dispose of, hide or devalue it to frustrate a subsequent confiscation order. That is particularly true of moveable property such as cars, jewellery and electronic equipment.

There is, of course, provision for those affected by the restraint order, and therefore the detention of the property, to challenge the order. If a decision discharges or varies the restraint order and releases the said property from detention, the prosecutors or others have the right of appeal. Clause 33 provides that in England and Wales, such property can continue to be retained by law enforcement with a view to it still being available for sale to meet a future confiscation order. That will ensure that items from which the defendant benefits as a result of criminal conduct are available for confiscation, which is only right, just and proper. The powers under which property has been seized and can be detained are certain powers of the Police and Criminal Evidence Act 1984 and the Proceeds of Crime Act 2002. For example, property seized as evidence under PACE, and also subject to a restraint order may continue to be retained even when the evidential purpose for retention no longer exists.

To explain why there seem to be so many amendments, clauses 34 and 35 provide equivalent provisions for the equivalent schemes in Scotland and Northern Ireland. The amendments are parallel amendments to those provisions. Clause 36 inserts several new sections—47A to 47P—into the Proceeds of Crime Act. It provides for specific search and seizure powers in England and Wales to prevent the dispersal or devaluation of personal property in anticipation of a confiscation order being made. Therefore, it differs from clauses 33 to 35, which provide for detention powers only. The powers are subject to judicial oversight and various other safeguards. Clauses 37 and 38 provide equivalent provisions for the equivalent schemes in Scotland and Northern Ireland. Once property has been seized under clauses 36 to 38, the seizing officer can initially detain it for 48 hours. He then needs to obtain judicial approval for continued detention. That will ensure, along with other safeguards, that the detention of the property is proportionate. Depending on the facts of the case, the judicial approval may be from a magistrates court making a detention order or a Crown court making a restraint order or varying an existing order to authorise the continued detention. Restraint orders are, and will be, used in more complex and high-value cases.

The amendments provide that if a decision is made by the courts relating to the detention of property, which is then appealed, the property remains detained until the appeal is concluded. That also applies in cases where there is an outstanding application before the courts. That is necessary as the circumstances by which the property is detained may cease while the appeal or application is pending, if, for example, under proposed new section 47K of the Proceeds of Crime Act, the initial 48 hours of detention expires and an application to the Crown court for a restraint order, which would authorise the continuing detention of that property, has been made but awaits a decision. In those circumstances, as the provisions are currently drafted, the property would have to be returned.

Amendment 172 provides that during an appeal the property remains detained until that appeal is concluded. That is necessary as the provisions, as currently drafted, require the property to be returned. Other amendments in the group achieve the same in other applications and appeals where otherwise have to be returned. The amendments ensure that property continues to be detained until there is no further possibility of an appeal. If the property were returned, it would be to those who are likely to dissipate it, thwarting the original reason for the seizure and detention and thereby undermining the policy intention. The property could be unavailable when a confiscation is made and needs to be paid, which would undermine the purpose of the clause.

In the clauses, the powers to detain are made with the view that when a confiscation order is made and requires payment, the property retained under the order can be sold to meet that confiscation order. The power of the magistrates courts to authorise sale of seized property is provided in clause 39. The amendments plug a gap to ensure the ongoing detention of property when that continuing detention is being contested.

Amendments 194 to 200 add to the new search and seizure provisions in clauses 36 to 38 of the Proceeds of Crime Act 2002. The three clauses are necessary for each of the three jurisdictions of the UK. They provide powers for the search and seizure of property to prevent its being made unavailable for satisfying a confiscation that has been, or might be, made. It also provides for the seizure of property that might otherwise be diminished in value by the conduct of a defendant or anyone else. That is an important addition to ensure that confiscation orders are paid when they are made.

As background to the amendments, the existing confiscation provisions in the Proceeds of Crime Act relate not only to the property held by a defendant but to certain gifts made by them to third parties, such as family and friends. That is an important provision as it stops offenders circumventing confiscation by placing their proceeds into the hands of other people, notably immediate family. The legislation calls such property “tainted gifts”, and it is an established and accepted law that in calculating a confiscation order, the court also considers the value of the property that the defendant has given away. “Tainted gifts” includes outright gifts, as well as under-value transactions. It is of note that criminals often reside in houses registered in another family member’s name.

Regarding the amendments, although aware of the tainted gift aspect of confiscation, our initial thinking was that the new powers of search and seize should be limited to the suspect. Practitioners have since voiced concerns that that would be a significant loophole. Defendants could engineer the exclusion of their property by making gifts; an extreme example being a defendant handing over his jewellery and other expensive moveable goods to family members present at a search. Accordingly, the amendments introduce the ability to search for and seize not only property directly held by the defendant, but those tainted gifts made by him or her.

I have tried to answer the point that the hon. Member for Hornchurch made at the beginning, and to look at such matters during the development of the Bill. It is significant that the same stringent safeguards will apply to such searches and seizures. For example, an officer would need reasonable grounds of suspicion before carrying out a search and seizure, and either a warrant or consent to be on the premises would be required for a premises search.

The code of practice will deal with the point of search and seizure from third parties suspected of being recipients of tainted gifts. Under the Proceeds of Crime Act, restraint orders can refer to third parties if they are recipients of tainted gifts. It is also of note that under that Act a search and seizure of cash under Part 5, and the execution of an investigation search and seizure warrant under Part 8 do not have to be against a person suspected of crime. As with this new power, both those measures are subject to a code of practice and have been operating successfully for six years.

Amendments 193 and 211 repeal the existing seizure power in the confiscation provisions of the Proceeds of Crime Act. Section 126 in Scotland and the Northern Ireland equivalent provide that property subject to an interim restraint order may be seized in the one circumstance of preventing its removal from the country. Clauses 37 and 38 of the Bill make provision for more extensive search and seizure powers that subsume those existing powers. Their continued existence is therefore not justified and the powers are repealed.

Amendments 239 to 241 are consequential on those made in respect of the powers to detain property under clauses 36 to 38. Those clauses specify that property may continue to be detained until there is no further possibility of an appeal. The amendments clarify the meaning of that. There are three amendments for the three separate UK jurisdictions.

I apologise to the Committee for the length of that, but sometimes that is necessary, because we must ensure that accurate information is read into the record, so that our legislators can refer back to it. Many of the provisions in this part of the Bill will have to be dealt with that way, and I apologise in advance.

James Brokenshire (Conservative, Hornchurch)

I will compile my comments to amendments 153, 155, 172, 192 and 210, which all cover the same point, but one that is reflected in different parts of the Bill. The current provisions provide for the continuing detention of seized assets where a restraint order has been recalled or varied and detention is no longer applied. In the case of amendment 153, and as reflected in the other similar amendments that I referred to, and notwithstanding the decision of judicial authorities, the assets can continue to be detained until the time when there is no further possibility of an appeal or a review of the court’s decision. I question how that can be appropriate, proportionate or reasonable. It is not even a requirement that the relevant authorities have to intend to appeal or seek a review. As I read it, they can simply hold on to the assets until whatever time they see fit.

I question the need for such a measure, particularly if a legal authority has taken the view that the order should no longer apply. Why then should the assets be, or seemingly be, retained until the right of appeal has lapsed? It almost seems to allow authorities to invoke the power simply at will, if they do not like a decision that has been reached. That does not seem to be right, and I cannot see how it can be compatible with convention rights. It is a serious issue, and one of the points that we have reached where the boundaries that are being pushed are starting to reach the edge of acceptability. The judicial authorities would have reached a conclusion at that point, which may well be subject to appeal, but it seems fundamentally wrong that the local authority can sit on the assets, notwithstanding that a court has effectively said that they no longer need to be detained. Why is that appropriate or necessary? Why should we accept the amendments?

Vernon Coaker (Labour, Gedling)

I hesitate to say that we disagree with the hon. Gentleman, but we believe that the amendment is appropriate, proportionate and reasonable. Every piece of legislation conforms to the Human Rights Act 1998, and the assets will have to be released if it is not proportionate to detain them. We are trying to close a loophole, meaning that we can detain the property while an appeal has been applied for or is pending. What we are trying to prevent all along is a case that if a restraint order was overturned and an appeal was made, a person in that case might, in that gap, get rid of the assets and the various goods that they have, to try to circumvent a subsequent confiscation order.

There is a point of difference between us: I believe that the clause is proportionate, while the hon. Member for Hornchurch believes that it is not. I think that it is, because there have been far too many occasions when the appeal process has been used as a way of circumventing the due process of law. In the end, if an appeal is successful, the defendant will be able to get their goods back. It is merely detaining them until such time as we can ensure that, should a confiscation order be made, those goods can be used towards the settlement of that order.

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 93, in clause 33, page 25, line 30, leave out subsection (5).

Hugh Bayley (Labour, City of York)

With this it will be convenient to discuss the following:

Amendment 97, in clause 36, page 27, line 18, at end insert

‘and that use of such power is proportionate’.

Amendment 98, in clause 36, page 27, line 25, leave out ‘the person has benefited’ and insert

‘the arrested person has benefited financially’.

Amendment 99, in clause 36, page 28, line 8, leave out

‘or the officer believes that such an application is to be made’.

Amendment 100, in clause 36, page 28, line 14, leave out

‘or the officer believes that such an application is to be made’.

Amendment 101, in clause 36, page 28, line 22, leave out

‘or the officer believes that such an application is to be made’.

Amendment 102, in clause 36, page 28, line 39, leave out ‘by the defendant’ and insert

‘by the person arrested in the case of a situation satisfying the first or second condition referred to in Clause 47B or the defendant in any other case’.

Amendment 103, in clause 36, page 29, line 13, leave out

‘unless, in the circumstances, it is not practicable to obtain that approval before exercising the power’.

Amendment 104, in clause 36, page 29, line 34, leave out

‘unless, in the circumstances, it is not practicable to obtain that approval before exercising the power’.

Amendment 105, in clause 36, page 29, line 40, leave out ‘a person’ and insert

‘the person arrested in the case of a situation satisfying the first or second condition referred to in Clause 47B or the defendant in any other case’.

Amendment 106, in clause 36, page 30, line 14, leave out ‘a person’ and insert

‘the person arrested in the case of a situation satisfying the first or second condition referred to in Clause 47B or the defendant in any other case’.

Amendment 107, in clause 36, page 30, line 36, leave out from ‘47G’ to end of line 37.

Government amendment 178

James Brokenshire (Conservative, Hornchurch)

The group gathers a number of different of amendments to clause 33 and subsequent clauses. Amendment 93 would delete subsection (5) of the proposed new section 41A of the Proceeds of Crime Act 2002, which provides the powers in secondary legislation to expand the list of relevant seizure powers to which the new restraint order will apply. Given the nature of this proposed new power, it seems inappropriate for its potential scope to be expanded, rather than pursued into primary legislation. In any event, such new powers would presumably be created by future primary legislation anyway, so why is this provision needed? If not, what additional powers under existing statutes does the Minister have in mind, to which this may apply?

Remaining amendments relate to new search and seizure powers in clause 36 in circumstances where potentially no one has been charged with any offence. Amendment 97 would ensure that the power was used only in circumstances where it was proportionate to do so. This is quite a blunt instrument in terms of how the clause is drafted. That may be appropriate in cases of serious criminality, where significant assets have been accrued because of such activity, but it is equally easy to see that it could be open to misuse.

Amendment 98 is designed to make clear that for the trigger permitting the use of the search and seizure powers to be operable in circumstances where someone has been arrested but not charged, there must be reasonable belief that the arrested person has benefited financially from the suspected illegal conduct. It clarifies who may be subject to the seizure powers. Are they be applied broadly, to virtually anyone, even though they may be completely innocent and unaware that the assets that they hold may have been financed by funds obtained directly, or indirectly, through criminal activity? How far down the chain do the Government intend to go?

As the Bar Council points out in its briefing note, it must be remembered that property that is detained under part 2 of the Proceeds of Crime Act, need not form or be alleged to be proceeds of crime, and the person from whom it is taken need not even be suspected of any crime, let alone charged or convicted. For example, property could be taken from the innocent recipient of a gift. Again, the need for proportionality and reasonableness is relevant in this context, as well as taking account of convention rights.

Amendments 99 to 101 would require the qualification that an appropriate officer can exercise search and seizure powers where he believes that certain applications by the prosecutor have been made. They either have or they have not. It is interesting to note that the officer’s belief does not even have to be a reasonable one. There is seemingly no obligation to check. This seems unacceptable and unreasonable—it does not seem too much of a hardship or a time constraint for the relevant application to have been made.

Amendments 103, 104 and 107 would make a similar point by stating that approval under proposed new section 47G should have been received. Suggesting that the power should be capable of being exercised in circumstances where it is said to be impracticable to obtain such approval seems to drive a coach and horses through the protections. In whose judgment would it be impracticable? Again, it is easy to see where this provision might be misapplied.

Amendment 105 is particularly important, as it relates to powers to search individuals. As the clause is currently drawn, it grants a general power of search of anyone beyond even existing rights of search under the Police and Criminal Evidence Act. Can the Minister explain the reason behind the measure, as it seems difficult to understand why that would be appropriate.

Amendment 102 would clarify the language around the use of the word “defendant” in proposed new section 47C, given that there will be no defendant if someone has simply been arrested. Amendments 105 and 106 make a similar point in different contexts.

Vernon Coaker (Labour, Gedling)

I accept the hon. Gentleman’s desire for proportionality and oversight with respect to all of the various powers that we are discussing—particularly in clauses 33 and 36. I also understand that in his amendments about necessity and proportionality that is what he trying to do. Having spent a long time helping officials and others in law enforcement put this Bill together, we too have been trying to do that. We all want to get more proceeds of crime from criminals to ensure that more of the ill-gotten gains are not enjoyed by people who break the law and do not conform to the rules.

The hon. Gentleman will have read the Bill carefully and knows that all the way through there is judicial oversight and the power to vary or discharge an order, and an appeal to the Crown court is available if people feel that a magistrate’s decision, for example, is inappropriate. I have argued all along for the need for that judicial oversight, which the Bill allows for. That relates to search and seizure powers, because obviously if we do not have powers of search and seizure we will have no property to detain, and in clause 33 that is exactly what we have tried to do.

James Brokenshire (Conservative, Hornchurch)

I accept what the Minister has said, but he will recognise that the scope and ambit of the provisions do not necessarily touch only those people who have undertaken criminal activity, but extend to those who might be completely oblivious to the fact that they are in receipt or possession of assets that are caught within the regime he has set out. Indeed, search powers might equally be applied to them—a point to which I have alluded. He talks about judicial oversight, but essentially that would take place after the event, which is why my amendment would make it clearer from the outset to anyone seeking to use the powers ab initio, regardless of what appeal right or judicial oversight might arise thereafter, that they should have regard to that initial action rather than what might happen after the event.

Vernon Coaker (Labour, Gedling)

The search powers are based on those used in cash search and seizure. We know that criminal conduct is required on the part of the person, but the property is the key concern to which the provision relates, rather than the individual, who will be dealt with through due process of the law. We are trying to stop significant amounts of property being dispersed before the confiscation order is made, and we have to address that as a public policy issue.

James Brokenshire (Conservative, Hornchurch)

I accept that.

Vernon Coaker (Labour, Gedling)

I know that the hon. Gentleman does, and as I said at the beginning of the debate, the difference between us is our view of how to do that proportionately. That is why we have built in the judicial oversight and not tried to extend the existing search and seizure powers. No general power of entry is given to anyone dealing with this and, as I have said, we believe that that is proportionate.

Amendment 97 deals with the issue of proportionality and the exercise by officers of the new seizure powers. I agree with the hon. Gentleman that the powers are potentially invasive and intrusive and that the police and others must exercise restraint and caution when using them—that is a given. When giving evidence to the Committee, Mr. Creedon, the chief constable of Derbyshire, gave assurances on behalf of ACPO that the powers would be used in a proportionate way and only when necessary. He said:

“human rights underpin what we do...Human rights are fundamentally important.”——[Official Report, Policing and Crime Public Bill Committee, 27 January 2009; c. 74, Q117.]

Similar assurances were given by Paul Evans, a director of the Serious Organised Crime Agency.

That said, we would not, as a matter of course, put into statute a requirement on law enforcement agencies to act in a way that was compatible with the European convention on human rights because they are automatically required to do so. Were we to include some express provision on proportionality in clause 36, there is a risk that that might cast doubt on whether law enforcement needed to ensure proportionality in the use of other powers granted by the Proceeds of Crime Act 2002 and other legislation. For example, there is nothing specific in the Police and Criminal Evidence Act 1984 to require the police to exercise their search and seizure powers proportionately. Rather, that is a general requirement.

As I have pointed out, there are numerous safeguards in clause 36 to ensure that the powers are used proportionately, including the preconditions set out before the search and seizure powers can be exercised in proposed new section 47B, which require a person to have been arrested, to be already subject to criminal proceedings, or to be subject to an application for a confiscation order or reconsideration of an existing order. Threshold tests for the seizure power, which vary according to the stage in the procedure at which it is proposed to seize the property, are also found in proposed new section 47B.

James Brokenshire (Conservative, Hornchurch)

I was going to raise this point in the stand part debate, but I shall make it now to save time. The Minister explained why the powers were necessary. However, the Bar Council’s briefing notes on this part of the Bill set out various other powers that may be applicable. They say:

“In other words, the need for a new power of detention of property is debatable in the first place, so it should only be invoked where at least a real degree of necessity is demonstrated.”

That comes back to my point about necessity. The Bar Council clearly feels that there is a debatable point. In the context of our debate, I am asking the Minister to reflect on the matter, given that such views are being espoused by not just me, but people who have more knowledge than I could possibly have.

Vernon Coaker (Labour, Gedling)

Of course I shall reflect on that. To be fair, the Bar Council also said that it saw a case for what the Government were doing. It did not oppose it in principle. What it was worried about—again, this addresses the issue of necessity and proportionality—was the creation of what it called a lower tier, de facto restraint order. The Bar Council did not oppose the provision in principle, however, but wanted to ensure, as the hon. Gentleman has argued, that we act proportionately. I shall consider his points and see whether there are further measures that we should take to meet some of the concerns.

The seizure power is exercisable only if the officer has reasonable grounds for suspecting either that the property may, unless seized, not be available for satisfying any confiscation order, or that the value of the property may be diminished. That is covered in proposed new section 47C. Certain property is exempt property and may not be seized. The search powers also require reasonable grounds for suspicion before they can be exercised.

There are further safeguards. For example, the value of property seized must not exceed the value of the anticipated confiscation order. There is judicial oversight of any seizure of property and there are rights for the defendant and affected third parties to apply for variation or discharge of the order. Furthermore, a code of practice will be issued to provide further details on the exercise of the powers, with an emphasis on the proportionality requirements. Although I am satisfied that we have done all that we can to ensure that the powers are to be used proportionately, I shall consider the hon. Gentleman’s points.

Let me turn to the issues of prior approval and the appropriate level of approval in the exercise of the search and seizure powers. The search and seizure powers in clause 36 require the prior approval of a justice of the peace or, where not practicable, of a “senior officer”. If the powers are exercised without prior judicial approval and seized property is released within 48 hours, or no property is seized, the Bill imposes additional requirements on law enforcement to explain in writing to the independent “appointed person” why it was not practicable to obtain judicial approval. The appointed person must publish a report every year on the exercise of the powers in cases where officers are required to report to him. The appointed person is a distinguished criminal barrister, Mr. Andrew Clark.

Clause 36 also requires judicial approval of the detention of the property within 48 hours of it being seized. All the new powers are modelled on similar powers already in chapter 3 of part 5 of the 2002 Act as regards searches for, and the seizure of, cash that is suspected of being the proceeds of crime or intended for use in unlawful conduct. Those powers have been operating satisfactorily over the past six years. Judicial oversight in such cases is provided by the magistrates court or a justice of the peace. The senior officer also has an important role in relation to the matter of prior approval. We are, therefore, not venturing into new territory with the search and seizure powers in clause 36. We see no reason to depart from tried and tested approval procedures, or to depart from the rule that appropriate judicial oversight is provided by a justice of the peace or the magistrates court in those cases where there is no restraint order in place.

Under our proposals, applications for a restraint order, or for a variation of a restraint order to include the detention of seized property, will have to be made to the Crown court. I repeat that we would expect higher value or complex cases to be subject to a restraint order, and therefore judicial authority for the further detention of property would come from the Crown courts. In cases where no restraint order is in place, the application to detain seized property is made to the magistrates court. The magistrate must be satisfied that there are reasonable grounds for suspecting that the seized property may be disposed of or hidden, or that the value of the property may be diminished.

I turn to amendments 98 to 101. Amendment 98 would ensure that the arrested person’s benefit from the alleged criminal conduct was financial. Our view is that this amendment is unnecessary. The part of the clause that the hon. Gentleman seeks to amend with amendment 98 is based on existing provisions in the 2002 Act—specifically in sections 6 and 40. They refer simply to benefit, rather than financial benefit, and benefit is defined in section 6. Neither the courts nor any law enforcement agencies have had any difficulty with this terminology.

Similarly the aspects of clause 36 that the hon. Gentleman wishes to amend with amendments 99 to 101 are based on existing provisions in the 2002 Act, specifically the restraint order provisions in section 40. The issue that amendments 102, 105 and 106 would address, regarding references to the defendant, is dealt with satisfactorily in proposed new section 47B(2). However these amendments have been overtaken by Government amendments 161, 162 and 167, which we will debate later.

On amendment 93, the order-making power proposed in the clause does no more than enable the Secretary of State to add a reference to a provision in an Act or to remove a reference to a provision. It does not allow the Secretary of State to provide for exceptions or to qualify a statutory provision. If a new piece of statute were to provide a new power of seizure, the Secretary of State could, by order, add that provision to the definition of a relevant seizure power. The power to amend the definition of a relevant seizure power by order is subject to the affirmative procedure, so there would be an opportunity for parliamentary oversight and scrutiny.

Government amendment 178 clarifies that references to the accused in the search and seizure powers under clause 37 are to the person arrested for the relevant offence when there is a relevant precondition for triggering the powers. The amendment relates to the Scottish provisions. Equivalent amendments to the England, Wales and Northern Ireland provisions are being made elsewhere.

Let me say this again: these are very complicated provisions. I apologise again to the Committee for reading some of this into the record, but it is extremely important. The points made by the hon. Member for Hornchurch were also extremely important. I regard this power as necessary, but potentially invasive. I will consider the issues that he has raised regarding whether further oversight is needed. We have tried at every stage in the development of this to ensure that there is judicial oversight and that there are safeguards built into the legislation. It would be an arrogant Minister who, when asked to reconsider, just said no. I will look at it again. However, on the basis of my remarks, I ask the hon. Gentleman to consider withdrawing the amendment.

James Brokenshire (Conservative, Hornchurch)

I appreciate the Minister’s comments and his undertaking to review this proportionality test. We will obviously wait to see whether any progress is made. I beg to ask leave to withdraw the amendment.

Clause 34

Clause 35