Coercion in disguise
The idea of "voluntary" agreements has been around for a long time in the licensed trade, and has not improved with age.
The latest, in Rotherham, has the same bad smell that most of the others do, including the appallingly-named "Acceptable Behaviour Contract" in Bexley, which I find both patronising and offensive. The fact that they often come from the police puts them on the same level as an ASBO, so that the licensed trade appears to be criminalised from the outset, only just staying on the right side of the law.
The problem with this is that the "voluntary" element, even if true, does not affect the result. Signing up to something, however well motivated it might seem, places a form of obligation on the signatory.
Calling it a contract clearly means that it can be enforced in some way; calling it a code of practice is similar, because such methods are used by governments and bodies such as the Gambling Commission to establish legally enforceable rules for a particular sector.
So what these codes achieve is some form of legality, although the contents have not been drafted by experts or sanctioned by the courts. It is often the actual contents that are questionable. For example, who actually devised the queuing system for Oldham It is not in any form of proposal from the Home Office or the Department for Culture, Media and Sport. It has not been discussed in Parliament. As far as I know, the licensed trade "experts" from Sheffield University, who are the leading lights on minimum pricing, according to the Home Office, have not ruled on this idea.
To be fair, Sheffield's research on minimum pricing has been deliberately taken out of context to suit the Government: it is not their fault. But minimum-pricing agreements of the kind proposed in Rotherham are illegal — and that's official. In fact, the Rotherham police know this, which is why they assume that a "voluntary" agreement to do exactly the same thing does not breach competition law and will not be frowned upon by the Competition Commission.
I am not so sure. This code has been dreamed up by the police, who need to find some way of getting all on-licensed premises to sign up to it. It depends entirely on whether they have at some stage let it be known, for example, that adherence to the code will give some sort of advantage to the participant, such as not having their licence reviewed, or refusal to sign, or non-adherence, a greater chance of a review in fairly short order.That isn't voluntary. It's a form of coercion. I have commented before that any hint of the licensing laws being differently applied according to such a yardstick would be unlawful, even if a joint agreement to limit price reductions was not in itself anti-competitive and therefore illegal.
The licensing laws have been approved by Parliament to include the new concept of review, only on the grounds that one of the licensing objectives has been breached or undermined. Failure to adhere to a non-statutory code of practice is not, in itself, such a breach, but clearly if low pricing contributed to disorder, then it could be cited as a reason. The problem, as always, is what the code actually contains in terms of restrictions on trade. If any of the participants feels in any way uneasy about what is being asked of them, they should politely refuse to sign up, or seek to negotiate an agreement that clearly outlawed entirely irresponsible promotions, but which specifically made mention of flexibility for licensees to use price reductions as a boost to trade. Setting a minimum price generally is bad news, and should be resisted at all costs.
