Age restricted products: A code of practice for regulatory delivery
The Better Regulation Delivery Office (BRDO) of the Department of Business Innovation and Skills (BIS) has published a new code of practice with a view to "improving regulation in this area" through a "non-statutory response."
The objective of the Code is to set out a "process that follows the steps that an enforcing authority will work through, from prioritising the use of its resources, through its proactive work to support compliance, to targeted checks on compliance where these are warranted, and appropriate responses to non-compliance."
The Code supersedes the guidance issued by the Local Authorities Coordinators Regulatory Services (LACORS) of 2010, though adopts much of that guidance.
Top 10 key points:
- The theme and emphasis throughout the Code is that regulation should be exercised in a way that is transparent, accountable, proportionate and consistent and targeted only at cases where it is needed (s21 Legislative and Regulatory Reform Act 2006). NB: The Code states this approach must be taken when considering the attachment of conditions on a premises licence.
- In considering what enforcement activities to undertake an authority should take account of the outcomes it is trying to achieve, the public interest and where intervention is likely to have the greatest impact. This may result in the identification of particular geographic areas or individual businesses.
- It recommends the Authority publish their compliance and enforcement policy.
- A "consistent" approach to enforcement does not mean consistent as between all venues but consistent with the advice the business has received in managing its compliance.
- The conduct of test purchases must be risk assessed taking account of all relevant available information and intelligence to make an informed assessment of the level of hazard and likelihood of compliance. This includes reference to: past compliance, existence of systems to manage compliance; external accreditation or self/third party testing and the willingness to comply. No fishing expeditions.
- Before deciding on what action to take for a failed test purchase the Authority should consult the businesses Primary Authority or Home Authority or other relevant regulatory authority e.g. Gambling Commission.
- The Authority may consider discussing compliance issues with a business before carrying out covert test purchases.
- Code reminds authorities of the Regulation of Investigatory Powers Act 2000 (RIPA) in that it is unlikely to be considered proportionate to carry out covert methods without demonstration that overt methods have been attempted and failed.
- Test purchase volunteers should dress as a young person would and wear any clothes, jewellery or make up they might ordinarily wear but their appearance must be such to lead a reasonable person to suspect there were under the legal age. Any proof of age document given must be genuine and relate to the person. The test purchaser should be under the legal age permitted to make the purchase.
- A business failing a test purchase should be written to within 5 working days and one which passes, written to within 10 working days.
The new code of practice should be welcomed by the licensed trade with the underlying tone of partnership working and the use of enforcement as a last resort. It seems this would bring an end to random test purchasing "campaigns" across an authority's area and extinguish those policies which still exist where two (or even one) failed test purchase must lead to a review of the premises licence.
We have argued for clients at review hearings for many years that their compliance management systems are relevant and must carry weight in any decision. Rarely has a Local Authority Licensing Committee acknowledged this, unreasonably seeking to "punish" licensed retailers for what actually is the failure of their employees rather than the owner/retailer. In other words the retailer with no compliance systems in place at all has received the same outcome following a review of the premises licence as has the most diligent retailer. That is not consistent and we hope this Code helps to eradicate such an approach by Local Authorities in the future.
We remain concerned however, at whether there is sufficient guidance on the appearance and conduct of the test purchaser. The reason for the concern is that the statutory defence (of believing the test purchaser was over 18, and that nobody could reasonably have suspected from the individuals appearance that they were under 18 [s146(4) Licensing Act 2003]) is only available to the seller and not the premises licence holder. In our experience the "employee seller" invariably accepts a fixed penalty or caution without knowing they had such a defence, and often without informing the premises licence holder.
This has serious implications because of the offence of persistently selling alcohol to persons under the age of 18 (2 sales within 3 months).