Alcohol measures: one part confusion with a dash of dogma

IN A recent article, the police said parents who let their children consume alcohol at home could be prosecuted. This, no doubt, arose as a result of real concerns about drunkenness at house parties, but the article included commentary by a community police sergeant, Alcohol Focus Scotland and the Royal College of Physicians, who all poured scorn on the suggestion that anyone under 18 should be allowed alcohol. AFS said: “Our position is that if you are under 18 you shouldn’t be drinking at all.”

Depressingly, this is the sort of zealous bandwagoning that has influenced licensing law in recent years and has left us with a quality of legislation which leaves a lot to be desired, and is more restrictive on responsible small businesses than even temperance legislation ever was.

Under certain circumstances, it is perfectly legal for persons under 18 to consume alcohol. It has been that way for hundreds of years. People often think there is some sort of rule about allowing children a drink at home unless they are under five. This springs from the Children and Young Persons (Scotland) Act 1937 which created an offence of providing alcohol to anyone under five unless upon the order of a doctor, for medical reasons. The old licensing system – the Licensing (Scotland) Act 1976 – only prevented consumption by under-18s “in a bar”.

Both the 1937 and 1976 acts were, however, repealed under the Licensing (Scotland) Act 2005 and are no longer relevant. The 2005 act created the offence of selling alcohol to a child (15 and below) or young person (16 or 17). There is no link to the sale taking place on licensed premises, so by extension the offence can occur in a private home, or anywhere. The difficulty is that the offence only relates to a “sale”.

A “sale” constitutes the traditional definition, but elsewhere in the act the definition also extends to a supply of alcohol pursuant to a contract. It does not capture a mere supply where there is no contract, or giving alcohol for free. In the recent article, police said parents who tolerated a youngsters’ house party could be prosecuted under the 2005 act for supplying alcohol to persons under 18. From a general public-interest perspective, that sounds sensible; in law, it is unsupportable.

For a parent to be prosecuted, there would need to be a sale, or at least evidence of a contractual relationship involving the supply of the alcohol between the parent and the friend of their son/daughter who was “hosting” the party”; that, I suggest, would be unlikely.

What about the under-18s themselves? Again, the law leaves little option for police to press charges. The offence here is the knowing consumption of alcohol “on any relevant premises”. “Relevant premises” here basically means licensed premises, so there is no offence if the consumption takes place at home. Again, you might find that odd from a public policy perspective, but that is what the law states. But there are even exemptions for under-18s consuming alcohol on licensed premises – young persons of 16 and 17 are legally entitled to have a pint or a glass of wine with a meal, if it has been bought by an adult.

It seems sensible to most people that alcohol consumption should be in a safe, responsible environment. There is a clear difference between the continental approach of introducing and demystifying alcohol by having a glass of wine with dinner, and a drunken house party with no regulation or control leading to excessive drunkenness, violence or worse. The problem is that the act is silent on this and police feel constrained.

The 2005 act is already under attack from various quarters but that is what happens when neo-prohibitionist dogma drives public policy – you end up with bad law.

l Stephen McGowan is director in the licensing team at Lindsays