Alcohol Disorder Zones – A Lesson from England
With the controversy over the Scottish Governments new strategic approach on alcohol including a “social responsibilty fee”, we look at similar developments in England & Wales.
Article on Alcohol Disorder Zones; an English creation which may become law in Scotland under the guise of "social responsibility fees" for the licenced trade; first published in Scottish Licensing Law & Practice in December 2008.
On 14 May 2008 Westminster approved the Local Authorities (Alcohol Disorder Zones) Regulations 2008. Alcohol Disorder Zones (ADZs), the brainchild of the British Labour government, were originally part of their manifesto pledges prior to the last general election, in an attempt to address the negative health aspects of what some describe as the “excessive drinking epidemic”, but politically as a sop to the detractors of the Licensing Act 2003, when certain elements of the media and other organisations predicted the meltdown of the fabric of English society, should pubs and bars be allowed an extra hour or so at the weekend.
The regulations were approved despite strong concerns from Baroness Miller of Chilthorne Domer who tried to have them withdrawn and rewritten following harsh criticism from the House of Lords Merits of Statutory Instruments Committee, who had said: “We remain of the impression that the system is unduly bureaucratic and without clear explanation of how [the zones] offer benefits additional to the other methods for combating alcohol fuelled disorder that are already available to the local authorities”. Tory Home Affairs minister James Brokenshire said: “The regulations are fundamentally flawed and if any get adopted I would like to see how these weaknesses are addressed”. The regulations were passed by 240 to 158 votes.
Needless to say, the trade in Scotland was watching these developments with increasing concern and frustration – following the impact of the smoking ban on trade, outlays for conversion applications, architects fees, legal fees, and of course the infamous 10p budget, a bunker mentality may not be far off. Certainly, the trade will glean no solace from Justice Minister Kenny MacAskill, who said in a recent interview with The Guardian: “There is not a God-given right to dispense alcohol. You are not dispensing an elixir of eternal youth or a life-saving medicine. When you are given a liquor licence, you are given the right to make a profit, and therefore those who make a profit must meet some of the social and economic costs”.
The concept of an ADZ is also controversial from a sociological perspective – if a particular area is given such a label, would that not be counterproductive to the area’s ability to redress any negative aspects arising from a thriving late night economy, and self-perpetuate those negative aspects? Who would want to book a visit to a town centre labelled as a ADZ? Perhaps the very sort of drunken lout that the regulations are trying to strike at, thereby defeating the purpose. Certainly, it can do no good for the area’s tourism and hospitality ratings.
So what exactly is an ADZ? It is a “locality designated as such a zone” by a local authority under s.16 of the Violent Crime Reduction Act 2006, which is in the following terms: “A local authority may by order designate a locality in their area as an alcohol disorder zone if they are satisfied—
- that there has been nuisance or annoyance to members of the public, or a section of the public, or disorder, in or near that locality;
- that the nuisance, annoyance or disorder is associated with the consumption of alcohol in that locality or with the consumption of alcohol supplied at premises in that locality; and
- that there is likely to be a repetition of nuisance, annoyance or disorder that is so associated;
The process is not as simple as merely designating an area as an ADZ. The local authority must first prepare a document called an “action plan” under s.16(4) of the 2006 Act, detailing the steps it thinks need to be taken – including a mandatory payment scheme, a tax on licence holders within the zone. There is an 28 day consultation period to be observed regarding the proposed elements of the action plan (although late representations could be considered, see BelfastCity Council v Miss Behavin’ Ltd [2007] 70 LR 19).
This consultation period could be frought with legal headaches regarding implementation and correspondence, and would create a massive workload for English authorities – for example in data gathering and communicating the various parts of the consultation stage to each licence holder affected. The regulations allow for the police to separately propose the status to the local authority, who must consider the proposal even if they had no thoughts to do so themselves.
Crucially, only if this action plan phase is a failure and the social problems persist can the local authority then impose the ADZ status, which at that point activates the requirement for licence holders to contribute to the mandatory payment scheme.
The money raised through this “scheme of payments” would be put towards services to reduce the nuisance or annoyance. The regulations include an exemption for certain licence holders from these payments, namely premises licensed under the 2003 Act but not for the sale of alcohol, and premises where the availability of alcohol is “not the main reason, or one of the main reasons” for entering the premises. This second exemption led to some discomfort from the on-trade who suspected this may allow supermarkets to avoid the levy. However, following the final debate Lord Bassam of Brighton said: “Some have asked whether supermarkets will be exempt from the charging mechanism. The short answer is no. If the availability of alcohol is one of the main reasons why people visit a supermarket during an ADZ service period, then it is right that it is liable to pay a charge”. In my view, this statement hardly alleviates the concern of the on-trade and supermarkets could easily argue that their shoppers did not enter their premises with alcohol on the mind.
The actual payment itself is to be calculated based on expenditure by the local authority (other than “baseline” services), the police and the British Transport Police. It is estimated in the English trade press that the payment could be as much as £100 per premises per week. Payment is collected by invoicing the affected premises; if payment is not forthcoming the regulations provide for the premises licence to be suspended.
And now that the regulations have been passed there is much to learn as those of us north of the border may yet see a Scottish version – Justice Minister Kenny MacAskill has been hammering home the “polluter pays” message for some time now, and the ADZ is a form of “polluter pays” polemic. In August 2007 he said: “The effects of alcohol on our city and town centres is not cost free and those who profit from it must contribute to addressing it. It's not right that taxpayers pick up the whole of the bill, licensees should pay their way too”. Curiously, Mr MacAskill’s party had previously rejected the idea of a polluter pays paradigm when it was proposed by ACPOS back at the Stage 2 amendment of the Licensing (Scotland) Bill (which later became the 2005 Act). Fergus Ewing, SNP MSP, said the scheme was “impossible to interpret and implement”, and Lib Dem MSP Andrew Arbuckle said “good law is law that can be enforced…local businesses already pay taxes and, rightly, expect to benefit from public services”.
Readers of SLLP will be aware that the Scottish Government has released its own “long term alcohol strategy” which has yielded a Scottish ADZ: the “social responsibility fee”, amongst other policy measures such as separate point of sale tills for alcohol, raising the legal age for purchase of alcohol for consumption off the premises to 21 and a minimum price per unit of alcohol; much of which has been been met with criticism and resistance.
One wonders what the Licensing (Scotland) Act 2005 would have looked like if part of that strategy, had it not already made the statute books.
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