Licensing and Clubs (Amendment) (Northern Ireland) Order 1989

HL Deb 17 October 1989 vol 511 cc856-62

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Skelmersdale) rose to move, That the draft order laid before the House on 25th July be approved.

The noble Lord said: My Lords, I beg to move that the Licensing and Clubs (Amendment) (Northern Ireland) Order 1989, a draft of which was laid before this House on 25th July 1989, be approved. The order is short, but it contains important changes, one of which is designed to reduce the availability of off-sales alcohol late at night. This is a most serious matter in Northern Ireland, where there is a great deal of concern about the abysmal behaviour of many who drink in public in the later hours. I hope that your Lordships will support these changes.

The guts of this order are to be found in Articles 3 to 6, and I shall come to those soon. First, I shall briefly explain each article in sequence. Article 3 concerns ancillary businesses on licensed premises. The present law restricts public houses and off-licences to the business authorised by the licence, which is the sale of alcohol. However, it also allows them to sell cigarettes, crisps, nuts and other items which go naturally with selling alcohol. Whilst the Government do not currently intend to make any changes to the statutory lists, it seems more than strange that such changes can only be made by primary legislation. This article therefore simply gives a power allowing any future changes to be made by regulations.

Article 4 is wholly beneficial. It provides for extension licences and special authorisations when New Year's Eve falls on a Sunday. This occurs on average once every seven years, and next New Year's Eve will be one of those occasions. The present law prevents alcohol being sold in licensed premises or registered clubs after 10 o'clock on Sunday. The Government have been persuaded by representations received that the special nature of New Year's Eve merits a modest relaxation of the law. The effect of the article therefore will be to enable hotels, restaurants, and pubs of an approved standard, as well as registered clubs, to sell drink beyond the normal time of 10 in the evening on that particular Sunday, up to one o'clock in the morning on the Monday, provided—and this is an important safeguard—they obtain the requisite licence or authorisation.

I turn now to Article 5 which introduces a ban on the sale of alcohol from all off-sales outlets after 9 p.m. It is the most important part of the order, and is really an extension of provisions in the Licensing (Northern Ireland) Order 1987, which banned sales from freestanding off-licences after 9 p.m. The ban did not extend to off-sales from pubs or the off-sales outlets attached to them, which were able to continue with off-sales to 11 p.m.

That restriction was aimed at reducing the alcohol available to those persons, mainly in the younger age group, who persist in drinking in public and generally behaving in a most offensive way. It was apparent that these people had been buying their drink mainly from the freestanding off-licensed premises. The 1987 change helped to alleviate the problem but there remained substantial concern that futher restriction was needed, since they were turning to the other outlets for their drink.

In passing, may I commend the no alcohol pubs. Armagh, Ballymena and more recently Dungannon, have introduced these to encourage young people away from an alcohol related environment. There was another factor to be considered. The 1987 ban affected the viability of some of the off-sales shops, who claimed that the loss of two hours' trading was having a disproportionate effect on their business. Following a review of the position in the light of various representations received, the Government were persuaded that some of these shops were indeed trading at a disadvantage.

In order to meet all these concerns the Government decided that the most sensible answer was to put a ban on all off-sales after 9 p.m., including those from the off-sales outlets attached to pubs. That is the purpose of this article, which also bans off-sales over the bar in pubs. Article 6 deals with offences involving minors. I know your Lordships are concerned, as I am, about under-age drinking. I have already mentioned the encouraging move towards no alcohol pubs. However, we still have to keep a tight rein on licensing offences involving minors. This article creates a new ground of defence for a person charged with selling alcohol to a minor, requiring him to prove that he had used all due diligence to prevent the offence from ocurring. The same defence will apply to a person charged with allowing a minor in the bar area of a pub, or in an off-licence.

The noble Baroness, Lady Masham, and her group, in their report on young people and alcohol, recommended that the onus in these circumstances should be placed firmly on the licensee. I agree wholeheartedly, but believe that we must get the balance right. On the one hand, licensees must know their responsibilities. On the other, we must have a sound defence for the conscientious licensee who makes a genuine mistake. I believe that the new defence, which is identical to comparable ones in the rest of the United Kingdom, strikes a sensible balance. The next few minutes will show whether I have gone into sufficient detail in this order. As usual I shall be delighted to answer such questions as your Lordships may have. In the meantime I beg to move.

Moved, that the draft order laid before the House on 25th July be approved.—(Lord Skelmersdale.)

8 p.m.

Lord Prys-Davies

My Lords, I thank the Minister for explaining the provisions of this short but important order affecting the licensing laws of Northern Ireland. It seems that the order can be viewed as the third package of the recent reform of the licensing Acts in Northern Ireland, the other two having been introduced in 1987.

I shall be brief and merely comment on three of the provisions of the order. First, and for the reasons given by the Minister, I welcome the wording of the defence that will be made available to a licensee in a prosecution brought against him in respect of the sale to a minor of intoxicants on licensed premises. That will bring the law in Northern Ireland on this matter into line with the law not only of England and Wales, but also of Scotland which, I believe, first introduced this defence as long ago as 1976.

I myself have no brief for harmonisation unless there is a real need for it. However, I am sure that everyone will agree that the terms of the new defence contained in Article 6 should be made available in Northern Ireland.

Secondly, I wish to raise a small point about Article 8(5). I understand and fully agree with the reason for paragraph (5) which extends the definition of the word "resident" to include a guest who receives overnight accommodation in a public house. According to the wording of the paragraph, a resident means inter alia a person who, has in writing engaged a room for the succeeding night". I am not aware that this phrase has been construed by the courts. Neither am I aware that there is a precedent for this phrase in other legislation. However, I may well be wrong on that point. I wonder whether the phrase should have been more closely defined. I am a little worried that the provision as worded could raise problems. For example, would a written record of a telephone booking amount to a written engagement by the guest? I am not so sure that it would. When does the written document become an engagement? If there is a written record but it is unsigned by the guest or the traveller, does that amount to an engagement? I raise those two questions as evidence that there could be problems with the wording of the paragraph.

Thirdly, I want to refer to Article 3. As the Minister has explained, this article empowers the department by regulations, subject to affirmative resolution, to modify the list of the ancillary businesses which may lawfully be carried on in licensed premises. Until I had read the article I had not appreciated that an Order in Council could provide a safe legal route for modifying the scope of primary legislation in respect of a specific matter which is itself covered in primary legislation. I am not an expert in this field and it is with considerable diffidence that I refer to this point of constitutional propriety. Perhaps the noble Lord can confirm to me, if not tonight then in writing, that there is no possible conflict between Article 3 of the order and the primary legislation contained in Section 28(7) of the Licensing Act 1971. If the noble Lord confirms that it is legitimate to use the Order in Council to authorise a way around a specific provision contained in primary legislation, that would be a further cause of concern about the government of Northern Ireland by Orders in Council.

My comments may not be of much help to the Minister. I shall follow his reply with interest and, subject thereto, we support the order.

Lord Blease

My Lords, my noble friend Lord Prys-Davies has as usual dealt thoroughly and ably with the contents of this amending order. I fully support the views he has expressed from the Opposition Front Bench. I welcome the Minister's statement of concern about under-age drinking in Northern Ireland. It is worth noting that in June the Minister's own department issued a report of a survey that indicated that there are fewer under-age drinkers in Northern Ireland than in the rest of the United Kingdom, though I do not mean to express that we are in a better position in Northern Ireland in regard to under-age drinking. Indeed the noble Lord has indicated that there is still great concern in Northern Ireland and that efforts are being made to curtail that sad habit.

Can the Minister explain the proposed extension of the licence to registered clubs, hotels and public houses for New Year's Eve when it falls on a Sunday? He has indicated that on average this occurs once in seven years. As I understand it, the extension applies only to the sale of intoxicating liquor for consumption on the premises. The extension is limited to three hours, until 1 a.m. on Monday, 1st January. Therefore, purchases of alcohol should cease at 1 a.m. Does this mean that public houses will continue to have the additional 30 minutes for what is commonly known as the clearing up period during which barmen can do their work about the premises and whatever alcohol has been bought can be consumed? It is important clearly to understand the closing hours from the point of view of enforcing the legislation. It has been a contentious point for many years.

This is the first occasion in the House on which I have addressed the noble Lord since his appointment as a Northern Ireland Minister of State. We all recognise that ministerial responsibilities in Northern Ireland are not the easiest of government portfolios. The holder of any Northern Ireland ministerial position is deserving of every possible understanding and goodwill. I wish to add my good wishes to those already expressed to the Minister from all sides of the House and also to indicate my support for all earnest efforts to promote peace and prosperity for the people in Northern Ireland. I support the order.

Lord Skelmersdale

My Lords, I agree with the noble Lord, Lord Prys-Davies, that this is a genuinely beneficial and helpful order. Article 8(5) almost exactly duplicates Section 84(1) of the Licensing Act (Northern Ireland) 1971, the only difference being the reference to cover pubs which of course can, since the Licensing (Northern Ireland) Order 1987, provide accommodation. Therefore, it has quite a long precedent. The noble Lord asked whether the way one deals with a telephone call and so on has ever been tested in the courts. I do not know but I anticipate—this is purely an off-the-cuff statement—that the proof of the pudding, so to speak, would be in the signing of the residents' book when one gets the key of one's room. If I am wrong I shall write to the noble Lord.

The noble Lord asked about Article 3. I too find this process rather confusing. I am advised that, so far as concerns Northern Ireland, and for all I know more generally, Orders in Council are primary legislation, and so it is "cricket", so to speak, to amend existing primary legislation by new primary legislation. That is what we are doing throughout the order.

I appreciate that that brings a rather wider and very much larger subject into the debate. The noble Lord may have noticed that the noble Lord, Lord Hylton, has a Starred Question down for answer on Wednesday next week which will cover that precise point. With the agreement of the noble Lord, we can perhaps develop the thinking then.

Why have we changed the defences for offences relating to minors? As I said earlier, that stems from a recommendation made by the group chaired by the noble Baroness, Lady Masham. As the law stands, it is too easy for a licensee to claim that he did not know the age of a customer, and all too difficult for the prosecution to prove otherwise. The onus will now shift to the licensee to either persuade the court that he had no reason to suspect that the person was under 18 or that he exercised all due diligence to avoid commission of the offence. He might do the latter by, for example, asking the customer for proof of his age or by making sure that his staff are fully conversant with the law in that area.

The noble Lord, Lord Blease, whom I am delighted to welcome back to our debates—this is the second debate that I have had the honour of handling from the Dispatch Box—asked about the record of the consumption of alcohol by minors and what the department was doing about that. As he said, a recent DHSS report on drinking among school children showed that a large proportion of young people—66 per cent. of boys and 80 per cent.of girls—either do not drink or do so only a few times a year. However, a small proportion drink frequently and consume significant amounts of alcohol. Indeed, the drinking habits of young people seem to mirror the pattern of adult drinking in Northern Ireland. I am sure that the noble Lord will agree that that leaves a certain amount to be desired. That confirms that the attitudes of young people to the use of alcohol are clearly influenced by the example set by parents in particular and by adults in general.

For that reason, the department is convinced that, while it is important to provide health education for young people on all aspects of alcohol, it would be wrong to concentrate solely on that group. A health education promotion awareness campaign aimed at all groups in society is required and the department intends that the issue of its health promotion strategy for the prevention of alcohol misuse in Northern Ireland should be the first step in that direction. The new Northern Ireland health promotion unit has been asked to develop a health education programme for the whole community as a matter of urgency.

I am glad to say that the Department of Education is supporting and encouraging a broad and balanced health education programme in schools. Programmes of study in the compulsory and contributory subjects in the new school curriculum will include guidance on alcohol and alcohol misuse. Schools will be expected to include activities which develop healthy lifestyles and increase pupils' understanding and awareness of the social and physical hazards associated with alcohol misuse. The emphasis in all of that work will be on preventive measures.

Because of the apparent flouting of the law by some young people who claim that they are able to drink in pubs and clubs and buy alcohol from off-licences, the RUC is reviewing the present handling of under-age drinking and associated offences. It is proposed to initiate a number of measures to ensure a standard and effective approach to the problem throughout the force. These will include close monitoring by sub-divisional commanders of local stations of all incidents of under-age drinking and associated offences, and the submission of regular returns to RUC headquarters. That will be supported by a publicity campaign to help raise the general level of public awareness of the problem and advise parents, those in the drinks trade and those at risk of offending that existing laws will be rigorously enforced.

This is a genuine problem in Northern Ireland, and in my view the order will help to crack it. With those words, I commend the order to the House.

On Question, Motion agreed to.

Viscount Long

My Lords, I beg to move that the House do now adjourn during pleasure until 8.50 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.16 to 8.50 p.m.]