I have some degree of sympathy with staff where an individual truly looks much older than they really are. I had an unusual situation only six weeks ago when, on a trip to London, my daughter, who is 5ft 6in (yes, she is the goalkeeper in the local football team and stands taller than the mini-soccer goals) was offered a glass of wine by a very pleasant and unassuming waiter in a very expensive west London restaurant. Imagine my incredulity and his shock when I explained that she was only 10.
Is there anything wrong with the volunteer going into licensed premises with people much older than them?
The then Local Better Regulation Office (LBRO) carried out a consultation exercise on age-restricted products in 2011 and published responses to the consultation in November of that year. As a result of the exercise an Age-Restricted Products and Services Framework was published in the same month.
That framework made it clear that regulators had to make sure that the “compliance and enforcement approaches to age-restricted products and services legislation are transparent”.
It could be suggested that, if the enforcing authorities have particular concerns over 16/17-year-olds drinking alcohol with older customers who can legally drink alcohol, this should be made clear to the licensed premises in that particular area. In that way there is no question of there being any lack of transparency in how the regulators are seeking to enforce the law on age-restricted products.
Proportionate response?
The Better Regulation Delivery Office, which took over the LBRO’s work, has published a further consultation on introducing a code of practice for age-restricted products and services.
Point 2 of the proposed code states that “an enforcing authority should ensure its regulatory resources are allocated on the basis of an assessment of the priority risks in its area”.
Point 4 of the code advocates that “an enforcing authority should select compliance and enforcement activities that have the greatest potential to deliver improved protection for local communities and young people”.
It would have to be asked whether sending a 16 or 17-year-old with two much older people is addressing these two parts of the code but that would depend on the local issues concerning under-age drinking identified in any risk assessment carried out by the enforcing authorities in the area.
The draft code then emphasises in points 13 and 14 that any response to complaints or intelligence that an enforcing authority receives in any geographical area or for any particular business has to be “proportionate”.
It is questionable whether sending a 16 or 17-year-old to premises with much older people is proportionate, unless intelligence directly suggests that there is a problem with people on the borderline of 18 accessing these premises with older people and then drinking with them.
It would be interesting to see the intelligence available to the enforcing authorities in the particular case that has recently hit the headlines.
Unlikely scenario
The suggested code of practice then goes into detail about how individuals should be selected and, in particular, that they be allowed to dress as a young person would normally dress for visiting the type of establishment where the test is to take place — including jewellery and make-up.
If that is the case and the code of practice suggests that “real-life” situations should be replicated, would a 16/17-year-old realistically go into a premises with a 30-year-old? One would have thought that
this is a very unlikely scenario. If the regulatory authorities are suggesting that, to ensure that the volunteer is not at any risk the presence of the older adults is required, then we know of many authorities that will send in two volunteers under the age of 18 followed separately by two members of the regulatory authority to ensure their safety.
In short, I question whether the operation fully complies with the spirit of the revised code of practice that was published for consultation in July — in terms of transparency, the intelligence behind the visit and the “real-life” scenario that the authorities were trying to replicate.
Nevertheless, legally, it is no defence to simply argue that the volunteer was with two older people. If in doubt, ask for proof of age.