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The Nicholson Committee: Review of Liquor Licensing Law in Scotland
CHAPTER 13
CHILDREN AND YOUNG PERSONS
Access to licensed premises, and access to alcohol
13.1 In this chapter we deal with two distinct matters relating to children and young persons. The first relates to the circumstances in which, and the conditions under which, persons under the age of 18 should be permitted entry to licensed premises; and the second relates to measures designed to prohibit the sale or supply of alcohol to, and its consumption by, persons under that age. It has not been suggested to us that the current absence of access controls in respect of off-sale licensed premises creates any problems, or requires to be addressed by us, and as a consequence the first part of this chapter is concerned solely with premises licensed to sell or supply alcoholic liquor for "on" consumption. By contrast, what is said in the second part of the chapter is directed at licensed premises of all kinds, including off-sale premises, not least on account of the fact that it appears to be the case that some off-sale premises represent the most common source of alcohol for persons under the age of 18.
(1) Access to licensed premises
13.2 Under existing law access to licensed premises by a person under the age of 18 is unrestricted to a substantial, and possibly surprising, extent. Children of any age may lawfully be present in any part of licensed premises save that, subject to a number of exceptions, persons under the age of 14 may not be present in a bar during the permitted hours. Persons aged 14 and over may be present in a bar at any time, and they need not be accompanied by a responsible adult. Section 68(4) of the 1976 Act, which is framed in virtually impenetrable terms, provides that, for access purposes, references to a "bar" do not include "a bar at any time when it is, as is usual in the premises in question, set apart for the service of table meals and not used for the sale or supply of alcoholic liquor otherwise than to persons having table meals there and for consumption by such a person as an ancillary to his meal". The clarity of the relevant provisions is not assisted by the absence of any definition of the term "meal" or by the unhelpful meaning ascribed to the term "bar". Section 139 of the Act provides that "bar" includes "any place exclusively or mainly used for the sale and consumption of alcoholic liquor". However, the use of the word "includes" rather than "means" indicates that section 139 is not to be regarded as providing an exhaustive definition of the word "bar". By way of further complication, a "place" may fall to be regarded as a "bar" although it does not contain a bar counter. 1 The foregoing gives no more than a flavour of the complex, uncertain, and at times almost unintelligible provisions which at present regulate this matter.
13.3 The Clayson Committee also noted that at the time of its deliberations there were "no age restrictions on the admission of children to licensed premises except to a bar as defined in the 1959 Act". 2 That Committee went on to recommend that there should be provision to allow children a right of entry to bars "where the conditions are right". 3 In that situation the Clayson Committee recommended the introduction of children's certificates which, at the discretion of a licensing board, would entitle children to be present in a bar of licensed premises at certain times and subject to certain conditions. In making that recommendation the Clayson Committee said: "We would hope that this step would tend to reduce the possibility of children regarding (as some no doubt do at present) drinking, particularly in a public house, as a symbol of adulthood which is desirable in itself. We are firmly of the view that it is much better that they should come to see drinking in the right conditions as simply an incidental part of normal social activity". 4
13.4 In fact the foregoing recommendation was not introduced by the 1976 Act: and it was only in 1990 that provision was first made for the granting of children's certificates. 5
The legislation of that year allows a licensing board to grant children's certificates if it is satisfied, among other things, that the premises in question constitute an environment in which it is suitable for children to be present. A children's certificate permits a person under the age of 14, if accompanied by a person of not less than 18 years of age, to be present in a bar of licensed premises at any time between 11 a.m. and 8 p.m. for the purpose of the consumption of a meal sold or supplied on the premises. A licensing board is entitled to attach such conditions to the grant of a certificate as appear to the board to be appropriate.
13.5 Many of our consultees have criticised the foregoing provisions and the way in which they have in fact been operated by some licensing boards. It has been suggested to us, for example, that in this day and age it is unsatisfactory that a children's certificate is effective only until 8 p.m. since, it is said, many families with children may well wish to have a meal in a public house or hotel bar after that time. This point was particularly made to our Chairman when he visited Orkney. He was told that in the summer, when many families visit the islands, and when the daylight hours are almost without limit, the ferry from the mainland does not arrive at Kirkwall until about 8 p.m. with the consequence that families disembarking from that ferry cannot obtain an evening family meal since, apparently, such a meal is most likely to be available in the bar of a public house. It has also been said to us that in some instances licensing boards attach to the grant of children's certificates conditions which are difficult to comply with or which are perceived as simply being ridiculous. Such conditions apparently include the provision of baby-changing facilities, 'parking' places for prams and push-chairs, the guarding of heating appliances, stairs and electrical sockets, and a requirement that steps should be taken to ensure that small children are not subjected to offensive language. 6
It appears that a consequence of all of this has been that in some parts of the country only a relatively small number of licensees has attempted to obtain children's certificates. That, it is said, is detrimental to the tourist industry since many visitors from abroad are baffled and irritated when they find that they cannot take children into premises of a kind to which they would have normal access at home.
Our approach
13.6 Broadly speaking, we are very much in sympathy with the views expressed by the Clayson Committee on this matter. We agree that, if young people can be introduced in a suitably controlled way to environments where alcohol is sold and consumed as a normal part of social life, it is at least possible that they will grow up without feeling the need to demonstrate their manhood (and increasingly womanhood) by drinking illicitly or to excess. We also consider that it is likely to be of benefit to family life in general if families and other mixed groups of adults and children can go together into all parts of licensed premises - certainly for a meal but also, perhaps, simply for a drink, albeit a non-alcoholic one in the case of children. We see no advantage in maintaining the poorly defined distinction between a "bar" and other parts of licensed premises, nor are we persuaded that entry to parts of premises used mainly for the sale and consumption of alcohol (and thus likely to be regarded as "bars") should be conditional upon the consumption of a meal. We are also in agreement with those of our consultees who view with dissatisfaction the 8 p.m. watershed which is a feature of children's certificates. We share the view that contemporary eating habits make a later terminal hour desirable. We accept, however, that much may depend on the nature of the premises in question.
13.7 How, then, is an improvement on the present situation to be achieved? Given our views on the subject of "bars" we do not consider that it would be appropriate or helpful to attempt simply to revise the present provisions relative to children's certificates in order to try to make them more flexible and more suitable for the way of life at the beginning of the 21st century. Instead we prefer a more radical approach. Given the background of the general licensing scheme which we have recommended earlier in this report we consider that there would be advantage if, in future, there were to be a statutory presumption in favour of allowing children and young persons into all parts of licensed premises. Plainly, of course, there will be some licensed premises of a kind where it would not be appropriate for entry to be permitted. Premises offering extreme adult entertainment, including for example nudity, would be an obvious example of that. However, it is our view that for the future it should be for premises licence holders, if so advised, to opt out of the presumption in favour of children and young persons having a full right of entry rather than for them to have to seek express permission for such entry to take place. Premises licence holders should have an absolute right to opt out of the presumption, and licensing boards should not, in our view, have any entitlement to impose it on unwilling licence holders. We consider that the foregoing general approach should greatly widen the number and range of licensed premises to which children would have access in future.
13.8 As we understand it, the current Licensing Bill for England and Wales makes provision for a presumption similar to that which we have just described. However, it is also our understanding that the Bill does not restrict the presumption in any way, for example by providing that it is to apply only when a child is accompanied by someone over the age of 18, or by limiting access to the purpose of consuming a meal, or by imposing a cut-off time when the right of access will come to an end. We take the view that access by children and young people must be restricted in certain respects, though we also take the view that any such restrictions should arise only where necessary. Licensed premises vary to a substantial extent in terms of their location, their character, their facilities and their clientele, and we consider that that variety should be reflected in the range of access which ought to be accorded to children and young persons. At one extreme is, say, a public house with a small drinking area which becomes very busy at night, but which also has a separate room where meals are provided. Assuming that the premises licence holder has not opted out of the presumption which we are proposing, it might, in that example, be reasonable to restrict access by children to the room where meals are provided, and furthermore to require any such children to be accompanied by a person aged 18 or over. At the other extreme is, say, a café of the kind often found nowadays in towns and cities which has no area which would presently be regarded as a bar and which, particularly during the day, mainly sells coffee, soft drinks and snacks, but which also has a liquor licence entitling it to sell alcohol on its own or with meals. Many such places have outside tables and seating during the summer months. Assuming that the premises licence holder has not opted out of the presumption it might, in that example, be reasonable to allow access to children and young persons on their own, at least during the day, and without any requirement that such access should be for the purpose of consuming a meal. Many examples between these extremes can be readily imagined.
13.9 As can be seen, the approach which we favour is one which will, at least in theory, presume that children and young persons should have unlimited access to all parts of licensed premises but with the extent of that access in fact being tailored to suit the nature of individual premises. Under that approach what we envisage is that, in the first place, an applicant for a premises licence will, on the assumption that he is not opting out of the presumption entirely, set out in his operating plan or schedule the arrangements which he proposes in respect of access by children and young persons. Those arrangements might designate particular parts of the premises to which access would or would not be permitted; the times of the day when access would be permitted; whether or not access would be permitted only in the company of an adult; whether access would be permitted only for the purpose of consuming a meal; and so on. In the second place, it would then be for the licensing board either to approve those arrangements or to modify them as they thought appropriate. It is, we believe, essential that licensing boards should retain some control over such matters not least on account of the fact that it will be their duty under the general scheme which we propose to promote the licensing principles, one of which is the protection of children from harm. We hope, however, that licensing boards will not find it necessary to impose conditions of an extreme kind such as we described earlier in this chapter, and we suggest that one of the tasks of the National Licensing Forum (the formation of which we have earlier recommended 7) should be to offer guidance on this matter, possibly in the form of standard licence conditions. Any such guidance could, as necessary, be reinforced by further guidance directly from Ministers.
13.10 If effect were to be given to the above proposals they would, of course, replace entirely the present provisions regarding access to licensed premises by children and young people. For the avoidance of doubt, however, we should make it absolutely clear that we are not proposing any change to the existing prohibitions in relation to the sale or supply of alcohol to persons under the age of 18. Those prohibitions are absolutely essential and must be maintained. Similarly, it is no part of our proposals that children and young people should thereby become entitled to consume alcohol in licensed premises. 8
13.11 On this whole matter, therefore, we recommend:
59. (a) There should be a statutory presumption to the effect that persons under the age of 18 have a full right of entry to licensed premises of any kind.
(b) That presumption should, however, be subject to such restrictions as appear in a premises licence with those restrictions having been proposed in the operating plan accompanying an application for a premises licence, and having been authorised, with or without modification, by the relevant licensing board.
(c) Notwithstanding the foregoing, it should be open to any applicant for a premises licence to opt out of the statutory presumption and to state in his operating plan or schedule that persons under the age of 18 will not have a right of access to his premises or to specified parts of them.
(d) The National Licensing Forum should, at an early stage in its existence, devise appropriate guidance in relation to the restrictions which are likely to be appropriate for premises of different types, and they might offer that guidance in the form of a list of standard conditions which are to apply in premises to which children have admission. As necessary, Ministers might also offer national guidance on such matters.
(e) The foregoing recommendations should replace all existing provisions relative to the presence of persons under the age of 18 in licensed premises.
(2) Sale and supply of alcohol to, and its consumption by, persons under the age of 18
13.12 In terms of subsections (1) to (3) of section 68 of the 1976 Act an offence is committed where (a) alcohol is sold to any person under 18; (b) a person under 18 buys or attempts to buy alcohol; and (c) a person "knowingly" acts as a purchasing agent for a person under 18. We have already stressed that these prohibitions are absolutely essential and must be retained. However, the current provisions relating to the consumption of alcohol by persons under 18 are surprisingly eclectic. We echo the views of the Clayson committee 9 when we say that some of the potential effects of the present law are perhaps not widely realised. Broadly speaking, the consumption of alcohol by persons over the age of five is lawful except in a bar of licensed premises. That means that a person over the age of five may lawfully consume alcohol in those parts of licensed premises which are not a bar notwithstanding that it is unlawful for alcohol to be supplied to, or purchased for, such a person. In our view such a situation is illogical and unsupportable, and it seems to us that it represents a wholly unsatisfactory state of affairs which ought not to continue. We have no quarrel with the view that it is perfectly reasonable and acceptable for older children to be introduced to alcohol in a supervised fashion - preferably by their parents in a domestic environment; but we find it unacceptable that, under existing law, the consumption of alcohol by children is permitted in licensed premises apart from that part of those premises which is to be regarded as a "bar". We can see no good reason why the consumption of alcohol by a person under the age of 18 in any part of licensed premises should not be unlawful. We are, however, disposed to retain the provision which presently appears in section 68(4), and which permits the sale to and purchase by a person aged 16 or over of certain drinks (other than spirits) for consumption at a meal. This provision does not appear to have caused any problems in the past, and we consider that there is no basis for discontinuing it. However, contrary to what is in the present provision we tend to think that this should be permissible in any part of licensed premises which has not been excluded by the terms of the relevant premises licence. We should also add in this connection that it is our understanding that there is no longer such a product as porter, and we therefore consider that it could with safety be omitted from the list of permitted alcoholic drinks provided for in section 68(4). It may also be the case that made-wine and perry could in addition be omitted from the list since we are advised that they too are now virtually unknown to the licensed trade.
13.13 In chapter 2 of this report we drew attention to the apparently growing problem in Scotland arising from the consumption of alcohol, often in large quantities, by those who are aged under 18. We noted that this is so notwithstanding the fact that, as we have just explained, it is in general unlawful for such young people themselves to purchase, or to attempt to purchase, alcohol; it is unlawful to sell or supply alcohol to such a person; and it is unlawful for anyone to purchase or to attempt to purchase alcohol on behalf of such a person. Notwithstanding the foregoing, however, there has been a significant increase in the number of young people being admitted to hospital for emergency treatment as a result of alcohol consumption. Plainly this is a serious problem, and we have given anxious consideration to it in order to see whether there are proposals which we might make in the hope of alleviating it within the terms of reference under which we are working.
13.14 At the end of the day we have come to the conclusion that there is only a limited amount that might be achieved by changes to licensing law. Like so many other forms of alcohol abuse so-called "under-age drinking" is a cultural and social phenomenon of our time; and its causes, and the explanation for it, are not easy to discern with any certainty. We suspect that more might be done in our schools and communities in order to make young people aware of the dangers to health which are associated with drinking at any age and in particular at a time when physical development is still taking place. Almost without exception the young people to whom we talked during the course of our work said to us that, while the dangers of illicit drug use were constantly being brought before them during their time at school, alcohol received little more than a scant mention when they were aged about 12 or 13, and never again thereafter. Although it is not strictly within our terms of reference we venture to suggest that there would be advantage if those responsible for the education of our young people were to give consideration to the possibility of introducing more extensive, and more frequent, teaching on the dangers of alcohol consumption within the school curriculum. There is some mention of this in SACAM's Plan for Action, and we understand that it is something which that Committee continues to address. We should also add here that in our view at least some young people who drink to excess may be doing no more than copying the behaviour of older people, and in particular parents, who are perceived, whether consciously or not, as role models. That suggests to us that it will be just as important that any behaviour-changing initiatives should be targeted at adults as well as at children.
13.15 In the context of our own terms of reference we consider that some reduction in the sale and supply of alcoholic liquor to children may come about as a result of some of the recommendations which are made in this chapter and elsewhere in this report. If effect were to be given to our recommendation that in future there should be a designated personal licence holder in charge of all licensed premises both large and small, with that person having undergone appropriate training and possessing an appropriate qualification, that should go some way to ensuring that the business of all licensed premises is conducted in an appropriate and lawful manner. We consider that licensing standards officers, if introduced in accordance with our recommendations, would have a significant role to play in advising and assisting licence holders about how best to comply with the legal prohibitions relating to the sale and supply of alcohol to those who are under-age. It will also be of advantage if, as we have suggested elsewhere 10 in this report, all licensed premises were to be obliged to display sensible drinking information in a prominent place in their premises. Finally, we also tend to think that increased penalties for non-observance of statutory prohibitions may have some deterrent effect in bringing about a reduction in the incidence of breaches of those prohibitions. We deal with that in more detail in the next chapter.
13.16 There remains, however, an issue about how to identify with certainty those who are above, or below, the age of 18 (or 16 in the case of the limited exception which we have recommended above). Existing law provides a defence to a charge of breaching one or more of the age-related offences created by sections 68, 69 and others where the person concerned used due diligence to prevent the occurrence of the offence or where he had no reason to suspect that the person in relation to whom the charge was brought was under the relevant age. 11 Very often that defence is invoked in circumstances where the licensee in question claims that he saw an identification card of some sort or another which appeared to indicate that the person concerned was above the relevant age. There appear, however, to be some problems in relation to proof-of-age cards.
13.17 The first problem arises from the fact that at present there is a considerable proliferation of cards which young people may tender in order to establish their age. Some such cards have been introduced only in certain, limited, localities and are therefore unknown to publicans and other licensees elsewhere. Other cards have been introduced on a national basis; but, because there are several of them, it may be difficult for those working in licensed premises to be aware of all the different cards which are available to young people. All of this leads to uncertainty and a lack of uniformity. We have recently become aware of some moves towards a nationally recognised proof-of-age card in that, as we understand it, the Scottish Executive is giving its support to a development of what is known as the Young Scot card. However, we also understand that, with the support of the Home Office, the British Retail Consortium is about to launch a national Proof of Age Standards Scheme (PASS). If, as appears to be the case, it is intended that cards issued under that Scheme should be used in Scotland as well as in England and Wales, the current problem arising from a proliferation of cards may not be reduced. Our terms of reference confine us, of course, to the licensing system in Scotland. We are bound to say, however, that in our view there would be advantage if the Scottish Executive and the Home Office were able to formulate proposals which would result in a single approved proof-of-age card for the whole of the United Kingdom.
13.18 A second problem in respect of present arrangements arises from the fact that, as we have been told, it is relatively easy to forge certain proof-of-age cards. Apparently, with the assistance of modern computer technology this presents little difficulty in some cases. In all the foregoing circumstances many of our consultees have suggested that there would be advantage in having a single proof-of-age card made available by, or approved by, the Scottish Executive. It has been suggested that this should be available free of charge, and should be readily obtainable at a variety of sources such as post offices, universities and elsewhere. Needless to say, it would be essential that such a card should, so far as modern technology allows, be incapable of being forged. The great advantage of such a card, it has been suggested, is that it would be recognised throughout the whole country, and would be the only acceptable proof of age in most cases. We say "in most cases" because it has not been suggested that a card of the kind just described should be the sole means of establishing age. Obviously, a visitor from abroad is unlikely to possess a card of the kind just described; but he or she is likely to have a passport which, as an official document, should be just as acceptable as a means of proving age. The point here, as we understand it, is first of all to have a uniform system which will be readily recognised by all concerned, and secondly to have that system predominantly based on an official, forgery-proof, card while at the same time allowing for other means of proof of age in appropriate circumstances. However, were the system which we have been describing to be introduced, it would be much more difficult in future for licensees to say that they had used due diligence to prevent the commission of an offence if they had relied on a document other than the Scottish Executive proof-of-age card or some other official document such as a passport.
13.19 We for our part are attracted by the proposals which have been put to us, and we consider that, if implemented, they would go some way to strengthening controls over so-called under-age drinking. We should say, however, that, when we discussed those proposals with some of the young people whom we met in the course of our work, they provoked a mixed response. Some of the young people were fairly enthusiastic but others were unhappy at the prospect of having to obtain a card and of having to produce it when they went into a bar for a drink. We recognise that for those young people who are aged 18 or over it may be slightly irritating if they have to produce a card in order to prove their entitlement to what the law already permits. On the other hand, that happens to some extent already. It is also for consideration whether, as already happens in some instances, a national proof-of-age card might also offer some positive advantages in the form of discounts for non-alcoholic products and services. More importantly, however, a national scheme of the kind we have described should make it more difficult for those who are not entitled to do so to obtain unauthorised access to alcohol. There is virtually universal agreement that that is something which is essential in the interests of health and public order, and for that reason we do not consider that the introduction of a national proof-of-age card can be regarded as an unreasonable or unacceptable imposition on those who are legally entitled to purchase alcohol but whose appearance may seem to put that in doubt. In all the circumstances, therefore, we recommend:
60. (a) Current prohibitions on the sale or supply of alcohol to persons under the age of 18 should be retained. Persons under that age should not be permitted to consume alcohol in any part of licensed premises; but a person of the age of 16, but below the age of 18, should continue to be entitled to purchase beer, wine, made-wine, cider or perry for consumption with a meal in any part of licensed premises which has not been excluded by the terms of the relevant premises licence. Since they are now virtually unknown to the licensed trade it is for consideration whether made-wine and perry should be excluded from the foregoing list.
(b) The Scottish Executive should arrange for the introduction of a national proof-of-age card which would certify that the holder is of an age when he or she is entitled to purchase or to be supplied with alcoholic liquor in licensed premises. So far as is practicable that card should be incapable of forgery, and it should be readily available, free of charge, at various places such as post offices, universities, and the like. Licensees and their staff should be entitled to refuse to serve a young person who cannot produce that proof-of-age card, but as appropriate they should be entitled to rely on any other official document such as a passport.
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