HC Deb 16 October 1990 vol 177 cc1127-42

38A.—(1) A licensing board, when granting a licence, may attach a condition to the licence limiting the number of persons to be admitted to the premises in respect of which the licence is granted. (2) The holder of a licence to which a condition under subsection (1) above is attached or any employee or agent of his shall be guilty of an offence if there is a breach of such a condition.

(2) In section 17(6) of the principal Act (appeal as to conditions attached to licence) after the expression "38(3)" there shall be inserted the expression ",38A(1)".

(3) In Schedule 5 to the principal Act (offences and penalties) after the entry in respect of section 38(4) there shall be inserted the following entry:—

"Section 38A(2) Breach of condition attached to licence Yes Yes level 3 on the standard scale".'.

—[Lord James Douglas-Hamilton.]

Brought up, and read the First time.

Lord James Douglas-Hamilton

I beg to move, That the clause be read a Second time.

In Committee in another place, an amendment was moved enabling a licensing board, in granting renewal of a licence, and after consulting the fire authority, to fix, in the interests of public safety, the maximum number of persons entitled to be within the premises concerned from time to time and to make that number of condition of the licence.

On behalf of the Government, the then Minister of State said that he was aware of the problems of overcrowding in public houses in the Borders in the summer months that had given rise to the amendment, notwithstanding that under the Bill the fire authority will be added to the list of competent objectors to applications and that boards will have increased powers to impose restriction orders on licensed premises. He said that the Government would take the matter away and consider it further with a view to returning to it during the later stages of the Bill. I must say to the hon. and learned Member for Fife, North-East (Mr. Campbell) that members of his own party made that proposal.

Mr. Menzies Campbell

Name them.

Lord James Douglas-Hamilton

The proposal was put forward on behalf of the noble Lord Mackie of Benshie, who used to be a Member of this House.

I remember the former Secretary of State, Willie Ross, being asked by an hon. Member who represented a Cunninghame constituency when he had last been in a Scottish pub. His reply was, "Not as long as I can remember."

I believe that there is a serious safety risk. I could go through the evidence from the police and from the firemasters in certain circumstances. The point was made in the other place that there were similar provisions for restrictions on numbers in other enactments in respect of which similar difficulties could be said to exist in terms of the concentration of people in particular parts of the building. Lord Tordoff doubtless had in mind, among other enactments, section 41 of the Civic Government (Scotland) Act 1982, which provides that a public entertainment licence shall be required for the use of premises as a place of public entertainment, and that a licensing authority may attach conditions to such a licence limiting the number of persons to be admitted to the premises. So far as we are aware, enforcement of that provision has not given rise to any difficulty.

A number of licensing boards have already invited the Secretary of State to consent to amendment of byelaws to include a provision that would enable the board to limit the number of persons in licensed premises. However, in our view, such a provision could not be framed in a way that was not ultra vires, and the Secretary of State has been powerless to act.

I should mention that the chief constables of Grampian and Central, and the firemaster of Grampian have all written to express their concern about the lack of control of numbers in licensed premises. They suggest that, in some cases, it can lead to extreme danger to the public as a result of overcrowding. They are concerned that there are no powers under present licensing legislation to enable them to act.

The Scottish Office shares that concern and sees the new clause as an important additional public safety measure. In our view, it should not lead to widespread restrictions on numbers being imposed. We should expect licensing boards to consider the circumstances carefully when they have it in mind to impose such a condition, to do so with due regard to any concern of the applicant and to set such a condition only when they are satisfied that the measure is necessary in the interests of public safety. The premises, for example, may be regularly crowded for social events such as birthday parties and discos. The new clause is deliberately widely drawn so that boards will be able to specify the condition in the terms appropriate to a case. It will, of course, be open to the applicant to appeal to the sheriff against the terms if he so wishes.

Mr. Wilson

I thought for a moment that the Minister was going to give us a wee song, perhaps something like, "I knew a man who knew a man who couldn't get a drink in Peebles". The difference is that the man who could not get a drink in Peebles is a Member of the House of Lords. It is a tradition with these people when there is a slight irritation to think, "We'd better get some legislation through because we couldn't get to the bar at the common ridings."

This is a foolish and potentially dangerous proposal. If it is generally enforced, it will cause infinitely more problems than it will ever resolve. In his somewhat puzzling closing remarks, the Minister seemed to suggest that he did not want to see it enforced. Why on earth is it being put on the statute book when there are already many other ways of addressing the problem?

It is worth looking a little more closely at the origins of the new clause and also pointing out that we heard nothing of it in Committee. If we had, it would have received the usual savaging from Committee members of all parties. It was best withheld as a little surprise package for tonight.

It was not, alas, Lord Mackie of Benshie in person who introduced the new clause. It was Lord Tordoff who, according to the Minister, thinks of little else but the Civic Government (Scotland) Act 1982. I have been asked who Lord Tordoff is. I am sure that the hon. and learned Member for Fife, North-East (Mr. Campbell) will be able to give us copious biographical details. Unfortunately Lord Tordoff had to do the job because Lord Mackie of Benshie, he apologised, could not be present as he had an engagement at the cathedral in Lincoln involving laying up the colours of his old squadron. In the course of researching this matter, I am bound to wonder at the crowded social life that Lord Mackie enjoys.

Sir Nicholas Fairbairn

I know that we are not supposed to know anything about Members of the other place. Has Lord Tordoff ever been in Scotland and, if so, has he ever been in a pub in Scotland?

Mr. Wilson

Perhaps he got his title from what he perceived to be the instruction shouted at him when he entered a pub in Scotland.

The plot thickens because Lord Tordoff informed the House of Lords: The amendment arises out of discussions between my hon. Friend Mr. Archy Kirkwood and the police, and correspondence between my right hon. Friend Sir David Steel and the Ettrick and Lauderdale District Council"— this is the exciting bit— following experiences in the Roxburgh district. In his peroration, Lord Tordoff declared: It is because of that considerable perturbation in the Borders that I move the amendment."——[Official Report, House of Lords, 17 May 1990; Vol. 409, c. 412–13.] 8 pm

I thought to myself, "Perturbation is building up in the Borders, so by the time we reach the new clause, the Liberal Benches will be crowded with perturbed Borderers." Only a few minutes ago, I saw the distinguished former leader of the Liberal party, the right hon. Member for Tweeddale, Ettrick and Lauderdale (Sir D. Steel) entering the Chamber. What is more, he had brought with him the right hon. Member for Yeovil (Mr. Ashdown). I thought to myself, "Here is a true measure of the perturbation in the Borders. The right hon. Member for Tweeddale, Ettrick and Lauderdale not only comes here in person; he brings the leader of his party with him." But then they left. So where is testimony to the source of the disease? Where are the hon. Members ready and willing to support the proposal?

Mr. Menzies Campbell

It is too crowded.

Mr. Wilson

I do not think that there is any danger of the Liberal Benches becoming too crowded.

Where is the first-hand evidence of the circumstances that gave rise to this nonsense in the first place? Alas, we are not to hear from the perturbed representatives of Border constituencies—unless, that is, the hon. and learned Member for Fife, North-East is acting as their surrogate. Perhaps he will be the Lord Tordoff of these proceedings.

I accept that the power in the new clause is an enabling power. The new clause does not say, "This must happen" but allows licensing boards to set limits if they so wish. But once the power exists, it will be used. The licensing boards are not noted for their coyness. They do not usually say, "There are things that we can do but we decline to do them." If the power exists to set limits, they will set limits.

Such limits will become part of the normal licensing procedure and the important point is that they will apply on a year-round basis. They will be in force every day of the year. For 360 or even 364 days of the year, they may be perfectly sensible and reasonable limits. What I find irritating and unacceptable about the new clause—and this is why I have referred to its origins and to common ridings and riots in Roxburgh—is that it is aimed specifically at overcrowding in pubs on the big day in the small town. It is aimed at the big day in the local community—the one day in the year, perhaps, when the pubs will be en fête and overspilling and when people will be pouring into them in a general atmosphere of bonhomie.

For that one day in the year, there may not really be enough pubs to cope, but everyone adjusts and things go along very well. They certainly go along very well in every community—large or small—that I know in Scotland. If pubs have to observe a limit to avoid being found guilty of a criminal offence, there will have to be a man at the door—like a MacBrayne purser—standing there clicking them in and clicking them out, or perhaps even a turnstile, to ensure that the number of people in the pub does not exceed the legal limit.

Let me go back to my home town for an example. I am not familiar with the Border ridings, which may, indeed, be riotous occasions, but I think the Cowal games—the ones I know best—are quite a good example. I should not like to be the guy standing at the door of a pub during the games weekend saying, "We can have 150 inside; would the other 500 mind waiting outside in an orderly queue until there is room in the pub?" I am sure that neither Lord Tordoff nor Lord Mackie of Benshie imagined themselves being outside in the queue. No doubt they thought that they would be inside among the 150. The new clause would cause infinitely more problems than exist at present.

The problem would also arise on the night of the big football match, when pubs near the ground are inundated with people. Of course, people exercise their judgment: if the pub is so crowded that it is clear that they are not going to get a drink, they will not stand there waiting. I know that people should not drink on the way to football matches—it is very wicked—but some of them do. The pubs are crowded when people go in for a quick drink between work and an evening kick-off. Under the new clause they would be told to stand in a queue by a man on the door regulating the number of people in the pub to avoid a criminal offence being committed. I know that I am approaching the matter in a light-hearted way but I say in all seriousness that, in this, I can see the potential for trouble. It is ridiculous to legislate without taking account of the real circumstances that are bound to arise.

Another objection, raised in the other place by Lord Macaulay of Bragar, is that there may be only one man standing at the door in a pub where there are three bars. Two of those bars might be empty while the other is going like a fair. That would mean that we should have to have three men standing at each pub door to ensure that each space within the same licensed premises fell within the law. The new clause is impractical and unworkable and anyone who has anything to do with the licensed trade will confirm that.

There are already many ways of countering overcrowding. We already have legislation on the statute book. In the notes that the Minister kindly supplied to us, he points out that, in preparing the new clause, the Government had regard to section 1 of the Civic Government (Scotland) Act 1982 and that they also took account of the fact that, under the present Bill, the fire authority will be added to the list of competent objectors to applications, and boards will have increased powers to impose restriction orders in relation to the hours of opening of licensed premises. I repeat that there are many ways of approaching the matter, although I shall not go into all of them now. The most sensible way of dealing with serious overcrowding is for the police to exercise their right to enter and say, "There are too many people in this pub; please get some of them out." That is how matters function on a practical basis. It would be wrong, foolish and misguided to legislate as is proposed. It gives me no pleasure to do so, but I confidently predict that the new clause would create an awful lot more problems than it would solve. The Minister should take it away and reconsider it.

Sir Hector Monro

The hon. Member for Cunninghame, North (Mr. Wilson) has put the case for the opposition so well that not a great deal needs to be added. I hope that my hon. Friend the Minister will think twice about proceeding with the new clause. He knows that it would have had no hope of getting through the Standing Committee—for the very good reason that it is impracticable. I am the last chap to want to legislate for something that is practically impossible.

The new clause seems to have stemmed from Lord Mackie's visits to Border common ridings. As someone who has been to many dozens of common ridings—in the Borders, in Dumfries and Galloway and even in Strathclyde—I know that they are conducted with great good humour, that the police always manage the crowds with great sympathy and that the whole day goes by without any trouble. It is significant that those who advocate the new clause seem to belong to the police forces and fire services in the north-east; they are not from the Borders or from Dumfries and Galloway.

We should also bear in mind the fact that 20 Lord Mackie of Benshie would have a lot more trouble getting into a pub than 50 Members for Kilmarnock and Loudoun—on grounds of physical presence alone.

I agree with the point that the hon. Member for Cunninghame, North made about pubs with several doors and several bars. I shall not go into the rugby stories that I could tell about the length of rugby bars and so on. But with the best will in the world, how is a publican to check all his bars and doors while doing his best to sell drams and pints behind the counter?

In practical terms, the new clause would be impossible to implement, and we should think twice about proceeding with it, given that there seems to be so little evidence in its favour. Those of us with practical experience of the crowding that is alleged to cause offence would disagree with the argument that my hon. Friend the Minister is advancing.

We should bear in mind the fact that the common ridings take place in each town only once a year. However, we should also consider the many occasions when football and rugby crowds gather after matches. Those people certainly cause overcrowding, but only for a relatively short period. Why should they not do that? Why can we not get together in a huddle and have a drink if we want? There is no reason why we should be prevented from doing that.

The world may be a great nanny society in which people are not allowed to do anything; sooner or later we will not even be able to eat or drink. It would be very disappointing if the Government, who encourage freedom of choice, were to prevent me from going to the pub of my choice after a good rugby international at Murrayfield, particularly when we have all been so good at the match and have had nothing to drink. It seems very hard for the Government to stop us having anything to drink when we leave the game simply because there are too many people in a pub.

It is beyond one's comprehension to imagine the hard-pressed police behaving like Securicor and, as the hon. Member for Cunninghame, North (Mr. Wilson) said, checking people into the pub and then out again and even counting two if they are on a stretcher. The burden that we would be placing on the police force at a time when the police are particularly hard pressed is unimaginable.

We need more practical evidence from those involved in these affairs before we grant such tough powers to the licensing boards to allow them to tell a publican that he cannot have 100 people in his pub on a Saturday night or 50 people in at any one time while the police, the publican and his staff must also somehow ensure that the law is enforced. There may be good intentions behind the new clause, but it would be bad legislation.

Mr. Menzies Campbell

I should begin by declaring an interest. If new clause 13 is accepted, it may do much to create work for lawyers and especially work for those who, like me, from time to time practice in licensing law.

Although the Minister referred to my next point in his speech, and the issue is not reflected in the Bill, it is objectionable that a discretion is to be conferred on licensing boards without any sign of the factors upon which that discretion is to be exercised. The Minister referred to public safety. However, there is nothing in the new clause about public safety, convenience, comfort, nuisance, undue disturbance or anything else which features elsewhere in licensing legislation. It is unreasonable to confer on licensing boards a discretion as unfettered as this.

A license holder's only remedy to the provision would be to invoke the appeal provisions in clause 39, which provide a fairly restricted basis on which an appeal may be taken. If a board imposes a series of arbitrary limits on the number of people who may be admitted to a licensed premises within its jurisdiction, virtually all such impositions will go to appeal. Apart from creating work for lawyers, the Minister will ensure that the work of the sheriff court in Scotland is severely prejudiced and curtailed.

One should confer no discretion on an administrative body unless it is essential that that discretion is required in the public interest and no other way of preserving that public interest can be found. In the hands of responsible licensing boards that would create no difficulties, but from time to tune, boards act irresponsibly or unreasonably. They are sometimes motivated by considerations other than the merits of the application before them. The Minister should not confer yet another discretion on licensing boards willy-nilly.

One of the important changes to the law effected by the Licensing (Scotland) Act 1976, with which the hon. Member for Falkirk, East (Mr. Ewing) had so much to do, took away the unfettered discretion from licensing boards. At that time, Parliament thought it necessary that a new system of licensing should be created in which there was less discretion and in which decisions were more easily understood and more amenable to analysis and explanation. I believe that that was the correct way to proceed and I believe that the new clause contradicts that.

So far, the evidence in support of the new clause is pretty thin. I respect the views of Lord Tordoff and Lord Mackie of Benshie, because they are as entitled to their views as anyone else. However, their views are worth no more than mine or the views of the hon. Member for Falkirk, East, the hon. Member for Dumfries (Sir H. Monro) or anyone else with any experience of public houses in Scotland—and I include the Minister in that. No doubt, when he should have been reading the newspapers and discovering what was happening in the General Medical Council, he was in public houses around the country considering whether this proposal was necessary to preserve the peace and quiet of the people of Scotland.

The new clause is not necessary, it is ineptly framed, and it confers a discretion which is not needed and which may be abused. Those seem compelling reasons why we should not accept it.

8.15 pm
Mr. Allan Stewart

As the debate progresses, I hope that my hon. Friend the Minister is becoming increasingly convinced that the sensible course of action is to enhance his reputation for independence of mind and withdraw the new clause.

The House is in great difficulty when the Minister's justification for the new clause is that the subject was raised in another place in the context of a problem arising from the Border common ridings. The House has heard that my hon. Friend the Member for Dumfries (Sir H. Monro), who knows about the Border common ridings, is wholly opposed to this new clause.

If the justification for the new clause arises from problems at the Border common ridings, it is surprising that my hon. Friend the Minister calls in evidence representations from Grampian police and Central police. We can be reasonably assured that they do not have a particular expertise in what happens at the Border common ridings.

My hon. Friend the Minister also said that he did not expect there to be many restrictions on numbers in practice, although I may have got him wrong. If he does not expect there to be many restrictions in practice, why has he tabled the new clause? I do not want to labour the point about the Standing Committee. My hon. Friend the Minister has done his best with this Bill and has faced severe difficulties not of his making. However, if the issue was raised in another place and if an assurance was given that the Government would consider this provision, why was it not introduced in Standing Committee? That is where the provision should have been considered in detail. When hon. Members on both sides of the House do not want to stay up late, the House is placed in great difficulty if new provisions are brought forward on Report which are completely unrelated to the discussions that took place in Committee.

I do not want to detain the House, but I want to repeat a point which has been underlined by hon. Members on both sides of the House. The people in the licensing trade to whom I have spoken believe that the new clause is unnecessary and, for reasons given by hon. Members tonight, that it is impractical and unenforceable. The House should not pass such legislation. I hope that my hon. Friend the Minister will recognise that and that he will greatly enhance his already high reputation by withdrawing the new clause at the end of this debate.

Mr. Harry Ewing

I am beginning to be seriously worried about the Minister. The new clause reads like something that was said to him as a joke in a pub but which he has taken seriously and translated into the proposed legislation. As the Minister listens to the debate, surely he will come to the conclusion that he should withdraw the proposal. The legislation is founded on a number of points that the Minister put to us.

Lord Mackie of Benshie and I are very good friends. I have shared a drink with the noble Lord on many occasions. All I can say is that if there is a pub in the Borders in which Lord Mackie could not get a drink, it must be some pub. I have been in his company often in much bigger crowds than we get in pubs in the Borders and I have never noticed Lord Mackie having any difficulty in getting himself a drink, or in getting me one for that matter. I place no great emphasis on the fact that Lord Mackie had difficulty in getting a drink in a pub somewhere in the Borders.

The Minister told us that his hon. Friend the then Minister of State in another place was anxious to deal with the problem of overcrowding. I am the first to concede—this is the one concession that I shall make to the Minister—that the then Minister of State, Lord Sanderson, certainly knows a thing or two about overcrowding. Since he became chairman of the Tory party, he has fairly cleaned out the office in Chester street. If there was any overcrowding there, the noble Lord cleared it out.

The Minister told us that he has had two letters, one from the chief constable of Grampian and another from the chief constable of Central.

Sir Nicholas Fairbairn

It's the same fella.

Mr. Harry Ewing

I agree with the hon. and learned Gentleman. I have a feeling that it is the same fella. The present chief constable of Grampian took up his post on 1 September—[Interruption.] He was previously the chief constable of Central. I want to see those letters because I honestly believe that it was the same chief constable who wrote both letters.

Hon. Members are ridiculing the new clause because it deserves to be ridiculed. It is simply not capable of implementation. If there is one thing that we should not do when legislating, it is to introduce provisions that are incapable of implementation. All that we are doing is badly affecting the people in respect of whom the legislation would be applied—that is, the licensing board, licensees and, as the hon. Member for Dumfries (Sir H. Monro) said, the police force. They simply could not enforce it.

I have been watching the civil servants' Box. I have great affection for the people who occupy the Box. My right hon. and hon. Friends on the Opposition Front Bench will be working with them in a year's time, so I keep in with them. This afternoon the personnel in the Box changed at regular intervals depending on which part of the Bill and which clause we were debating. That is similar to what happens in a pub. A man goes into the pub, has a drink and comes out. Is the Minister trying to tell the House that we shall have someone standing at the door, saying, "There can be 150 in there. There are 149, so whoever is at the top of the queue can go in"? That is absolute madness.

Licensed clubs operate on a different basis. The licensing board is certainly responsible for granting a licence to a licensed club, but the licensed club is under an obligation to submit a list of members on a three-yearly basis before the licensing board will grant a new licence to a licensed club.

Mr. Dennis Canavan (Falkirk, West)

To the sheriff.

Mr. Ewing

I am grateful to my hon. Friend the Member for Falkirk, West (Mr. Canavan).

Before it will grant a new licence, the licensing board sees the official list of members. What will the licensing board do if the club has a membership of 800 people—every member is entitled to get into the club as that is part of the conditions of membership—but the capacity of the premises is only 300? Will the licensing board refuse a licence because the club has been successful in attracting 800 members but has accommodation for only 300? All those points serve to make the clause look more and more ridiculous. The Minister should say, "I have seen the light. I will withdraw the new clause because I know that it is not practicable."

Sir Nicholas Fairbairn

It is offensive that such a new clause should be introduced when it was not considered in Committee. That is the first of my propositions. Lest the Minister think that I shall be too serious, I shall give him one promise. I shall give him a way out, but I shall come to that at the end of my speech.

I am glad to say that the hon. and learned Member for Fife, North-East (Mr. Campbell) denied Christ Benshie before the fire, and Lord whoever-he-was whom I had never heard of who has never been in Scotland.

I wish to say various things partly in replication of what other hon. Members have said. As my hon. Friend the Member for Dumfries (Sir H. Monro) said, it is idiotic to base the number allowed in a public house on the number of those who use it annually or occasionally. As the hon. and learned Member for Fife, North-East said, it is manifestly unfair to reverse the intention of the 1976 Act to take arbitrary powers from the licensing authority. It has every form of absurdity. I shall point to the practicalities to demonstrate the absurdity.

The licensing authority—I am arguing for the moment without giving away my secret exit for the Minister—may say, "You may allow only 200 people in." I have in mind that bar at the end of Rose street, where people went on their way to Murrayfield, with that nasty woman, Ma Scott. The licensing authority may say, "You may allow only 200 people in Ma Scott's bar." After being at Murrayfield, 90 per cent. of the people who drink at Ma Scott's bar stand on the pavement outside anyway. Are they part of the people who are supposedly in the bar?

Along comes diligent Police Constable Brian Wilson, accompanied by Sergeant Harry Ewing. He goes into the public bar and, as everyone sways around saying, "Wasn't that a great game?", he says, "Stand still everybody, I am going to count you." Unfortunately, the pub is already so full that they cannot get around to count them. Eventually they manage to push their way through to the loo entrance at the back in the far corner to make sure that there is nobody in there to be included in the numbers. They manage to count 200 people in the pub.

One person then says, "I am actually a bartender," "Sorry, we will start again. You go outside. I am just counting the drinkers." He counts all the drinkers—199. He knocks at the locked door of the loo, and there are two people in it—a pair of gays who were not there to have a drink—and he says to Ma Scott, "You have committed a criminal offence; I have counted these people and there are 201 in here. Did you realise that?"

Can anyone imagine a greater absurdity? Meanwhile, in addition to those to whom I have alluded, there are people waiting outside the pub, like people waiting outside a loo, saying, "Come on, hurry up—I'm desperate." It is fatuous. I have never heard such junk. I have never heard any junk like that being thrown at us at this stage in a debate.

8.30 pm

The hon. and learned Member for Fife, North-East (Mr. Campbell) pointed out the important criterion of public safety and the role of fire officers. Mr. Oliver, formerly chief constable of Central Scotland and now the chief constable of Grampian, has written two letters about these serious matters, but when was a chap last burned in a pub? When was a chap last suffocated or asphyxiated in a pub? When was a chap last trampled to death in a pub? I suppose that in the history of Glasgow pubs the answer would be that if the punter realised that the fellow who runs the "Ship Bank Vaults" had one extra fellow in there, he might just stab him to death and say, "You're dead, I've saved you from being prosecuted, mister."

I should like to give the Minister a way out now. When granting a licence, a licensing board may attach a condition to that licence limiting the number of persons to be admitted to the premises in respect of which the licence is granted. As all hon. Members know, the ultimate lie that a Minister can tell, which is fed to him from the civil servants' Box to get him out of a difficulty, is "Unfortunately, the drafting is defective." The great secret is that nothing here says "at any one time". So the licensing board, when granting a licence, can say, "Until you lose your licence, you are only allowed to admit 100 people into your pub."

If it wants to be really sadistic, a licensing board could say, "Yes, Mr. Grant, we are granting you your licence and we are very impressed with the money that you have spent to comply with the safety regulations and the fact that you have lavatories for the disabled, the incurable and the blind, and facilities for dogs and cats, but we will only ever allow you to have one person on those premises. Do you still want your licence, Mr. Grant?" It has nothing to do with overcrowding. The provisions state simply that the number of people who will ever be allowed on the premises is limited. The drafting is therefore defective. If that is not a lifeboat into which a Minister can be pushed by those in the Box, there is no other known craft that can save him. There we have it.

The other thing that I find particularly infuriating is that, essentially, it is an English argument to say that someone is not allowed to enter a pub if a policeman, a fire officer or even a chief constable wearing two different chief constable's hats takes the view that he thinks that you might not enjoy the experience. I do not particularly mind that. I go into pubs—some of which are empty, some of which are full—and I can tell the House that before I have had my first drink, I would have a hell of a job counting the people up to see whether there are more people than there are supposed to be.

This is nonsense. If the Minister does not withdraw the new clause, he will be a laughing stock. If he does not withdraw this piece of mad Lewis Carroll fantasy, it will be passed into the laws of Scotland by the English majority in this House who have not heard one word of the argument. Furthermore, it will be passed by people who have probably never been in an English pub or any other pub. The day I receive a letter from a constituent stating, "Do you realise, Sir Nicholas, that I had to wait for half an hour for a drink in an overcrowded pub after Celtic beat Rangers?", I shall be very surprised, and the day I find a Scotsman who thinks that there is a danger of his being crushed on the way to get a drink, I shall be even more surprised. Let us throw this new clause in the swill bin where it belongs.

Mrs. Margaret Ewing (Moray)

Before the Minister accepts the lifeline that has been thrown to him by his hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn)—at least, I hope he will do so—I must express my own anger that the new clause has been tabled at this stage. We spent many hours in Committee discussing all aspects of the Bill, but only now, at this very late stage, has this particularly ludicrous new clause been tabled.

The practicalities of trying to implement the provisions have been highlighted by many hon. Members. It almost seems as though we are considering an employment opportunity scheme whereby we could have flying squads of counting agents dashing around the villages and small towns of Scotland when they have their gala days or common ridings.

I should like to pick up a point made by the hon. Member for Cunninghame, North (Mr. Wilson) and to talk about the importance of the big days for small communities when their pubs are extremely busy and perhaps overcrowded. I remind the Minister that in many small communities in areas such as the one that I represent, the big days or big weeks around an agricultural show are vital in sustaining the economies of those communities.

If the Minister visits Keith in Banffshire on the two days of the Keith show, he will find not only that the show ground is extremely busy, but that the pubs, the tourist shops, the restaurants, the fish and chip shops and the grocer are all busy because people from all around are buying from other businesses in the town. That is vital to those communities. The same would be true if the Minister were to visit Dallas, Garmouth, Kingston or Spey.

If the Minister were to visit any of those small communities on their gala day, he would see that that is when the tourists are there and that that is when the pubs and many other small businesses are busy and taking the money that will help to sustain them during the many other weeks when nobody else will be there apart from members of the local community.

Such businesses deserve our support. If the Minister brings in such a ludicrous new clause, which would detract from many of the fetes and gala days, he will be doing a great disservice to the rural communities of Scotland.

Lord James Douglas-Hamilton

This has been an interesting and colourful debate. I advise my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) that the drafting is based closely on the previous Civic Government (Scotland) Act 1982 which my hon. Friend the Member for Eastwood (Mr. Stewart) piloted on to the statute book and on which my hon. and learned Friend himself may have advised on the drafting when he was Solicitor-General for Scotland. [HON. MEMBERS: "Oh!"] However—

Sir Nicholas Fairbairn

If my hon. Friend the Minister can find any contribution from me to suggest that the number of people in a pub, myself included, should be controlled by a licensing authority, will he please direct me to the relevant part of the Civic Government (Scotland) Act?

Lord James Douglas-Hamilton

I am certainly not going that far, but I can reassure my hon. and learned Friend that new clause 13 does not apply to registered clubs, which in any case receive their certificate of registration from the sheriff, not the licensing board. It is also clear that boards are not administrative bodies but consist of the democratically elected representatives of local people, and they are the appropriate bodies to decide when the proposed condition should be applied.

Mr. Harry Ewing

The Minister is wrong. The certificate of registration is given by the sheriff, but the liquor licence is given by the licensing board. The sheriff does not grant liquor licences; the licensing board grants the club's licence.

Lord James Douglas-Hamilton

The information that I received states that the provision will not apply to registered clubs, but I shall certainly check the point made by the hon. Gentleman. He is correct to say that certificates of registration are granted by the sheriff, not the licensing board. The licensee has a right of appeal under section 39 of the Licensing (Scotland) Act 1976. Section 39(4) provides that the sheriff may uphold the matter on appeal if he considers that the board has exercised its discretion in an unreasonable manner.

The background to the new clause involved representations from the police and the Grampian fire brigade. I have checked, and the letters that I received are not confidential, so I shall make arrangements to have them placed in the Library. I stress that it was not the same chief constable who wrote on both ocasions, but different ones. [HON. MEMBERS: "Name them."] I am happy to name them. One was from the chief superintendent of central Scotland police and the other from Chief Constable Lynn of Grampian police.

The most significant letter comes from Grampian fire brigade's fire master. I shall not mention the particular club about which he is concerned and about which he made many points in his letter. He expressed concern about the numbers attending discos. He stated: The club … could not point out a means of escape in case of fire and when this means of escape was identified and followed, it was found to be obstructed.

Mr. Menzies Campbell

The Minister is reading from a letter that refers to clubs. I understand that the proposal before the House applies not to clubs, but only to licensed premises. Clubs are registered under a separate part of the licensing legislation.

Lord James Douglas-Hamilton

Yes, but the principal point made in the letter relates to discos—I shall certainly place the letter in the Library. The principal point he makes is: this situation is causing great concern to the Fire Authority and clearly some action must be taken immediately. I must make it absolutely clear that the new clause is a permissive provision; it is obviously not mandatory.

Mr. Dewar

The Minister is concerned about fires, but my impression is that the premises that he says are not covered by the clause—clubs and so on—are those most likely to have fire disasters. I concede that that is anecdotal evidence, but all my memories of newspaper articles suggest that. I take the point made by the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) that it is not pubs that go up in a blaze but the very premises that the Minister says are being excluded from the provision. Surely there are other ways, through fire regulations, of covering the fire danger.

In his support, the Minister has advanced two policemen and one fire master. How widespread has his consultation been? What about Strathclyde and the licensing boards? I should have thought that it was the views of the board members who are to have the power wished upon them that should be of importance. I suspect that for most people interested in the matter, the new clause comes as an equally puzzling surprise as it does to hon. Members.

Lord James Douglas-Hamilton

I shall go back a stage to the point about clubs. The discos to which I referred are not registered clubs, although they call themselves that—they are licensed premises, so the provision would apply to them.

That issue was raised at an earlier stage of the Bill, we promised to consider it and we received the further representations that I mentioned.

The new clause deliberately refrains from specifying circumstances in which a condition might be imposed, because we believe that it is right and proper that the licensing board should exercise its discretion against the background of its local knowledge in determining where the condition is appropriate. Any unreasonable exercise of that discretion is challengeable by means of the provisions enabling the applicant to appeal to the sheriff. Similarly, on the question of how the licence holder should ensure that the numbers in his premises are limited in accordance with the condition, we would expect licensing boards to take account of representations that applicants may wish to make during the hearing.

The 1976 Act already contains provisions imposing duties on licence holders in relation to the good order of their premises. Section 76 makes it an offence to sell alcohol to people who are drunk. The responsible licence holder can reasonably be expected to ensure also that his premises are not overcrowded where there is potential for that problem to occur.

It has been suggested elsewhere that that would require electronic counting equipment. The advocation of the condition in particular cases would be a matter for the licensing board. It is important to bear in mind that, should proceedings be taken against the licence holder for breach of the condition, the police and the licensing board would no doubt have regard to the seriousness of the breach and the risk to public safety that had occurred or was likely to occur.

The new clause is intended to reduce significantly the risk to public safety from overcrowding of licensed premises. It is framed in general terms to give licensing boards maximum flexibility in determining when and how its use would be appropriate, taking account of the concerns that the applicants may have.

8.45 pm
Sir Hector Monro

Surely my hon. Friend is not going to leave the matter like that. He has not explained how the condition will be breached. Hon. Members on both sides have shown the impossibility of controlling the number of people in a pub on a busy night, surely, as the new clause has received universal opposition, he will think again.

Lord James Douglas-Hamilton

Let me make it plain that, when somebody applies for a licence—for example, for a wedding party—and intends to invite a large number of people, through the by-laws a restriction may be placed on the numbers involved.

Mr. Wilson

I seriously begin to wonder whether the Minster has a clue what he is putting through. If we were talking about a specific licence for a specific function, it would be different. It is clear from the new clause that the figure would apply 365 days of the year to the premises and take no account of specific circumstances. The Minister must not put through this ridiculous piece of legislation on the basis of a personal misunderstanding of what it is about.

Lord James Douglas-Hamilton

The consideration that weighs most heavily with me is that of safety, which has emanated from the Grampian police and fire master. I have concluded my remarks.

Mr. Wilson

rose—

Mr. Deputy Speaker

Is the Minister giving way?

Lord James Douglas-Hamilton

No.

Mr. Deputy Speaker

If the hon. Member for Cunninghame, North (Mr. Wilson) has already spoken, he needs the leave of the House to speak again.

Mr. Wilson

With the leave of the House, I shall briefly seek to sum up. To put it at its mildest, the balance of the argument has been against the Minister. The points that have been raised from both sides of the House remain conspicuously unanswered. If we were arguing the merits of the case tonight, we should have to cancel the Division because the No Lobby would be overcrowded. I hope that hon. Members from outwith Scotland who have been listening to the debate will at least pass on to their colleagues outside that every Scottish Member who has spoken, including every Conservative Member, apart from the Minister, has not only opposed the provision but ridiculed and roasted it, for excellent reasons. If people troop in to vote the measure through, they bear the responsibility for it.

Sir Nicholas Fairbairn

The Minister has said that his prime consideration is public safety. He is also in charge of the Scottish Development Department—it is under his authority. It might say that it was not going to put in a pedestrian crossing in a certain place because only 22 people had been knocked down so far, so it did not qualify. How many people have ever been crushed or burned in pubs in Scotland? The answer is none, so why are we passing legislation to protect people from something that has never happened?

Mr. Wilson

The hon. and learned Gentleman is absolutely right. Another aspect that the Minister has not mentioned is that other crowds will be created by this. They might not be inside the pub but they will be outside, so instead of being happy customers they will be extremely dissatisfied people, perhaps outside in bad weather, and they will see no rational reason why they are not allowed inside the pub.

The Minister has also not mentioned that we are creating a new criminal offence. It will not result only in a black mark at the next licensing board; the person who administers the pub and allows in a number above the quota will be guilty of a criminal offence. That is outrageous.

Mr. Menzies Campbell

Is the hon. Gentleman aware that certain licensing boards regard behaviour outside the licensed premises as capable of being relied upon to establish that the premises are not being properly managed? If an artificial limit on the permissible numbers inside is created, and as a result people congregate outside, when reliance may be placed on their conduct as a reason for removing the licence, the consequence of such a proposal may be that innocent people will suffer the loss of their licence, not simply a breach of condition.

Mr. Wilson

That is another excellent point. If we were playing games, I could go around the Chamber and hon. Members could adduce additional arguments against the proposal. If the measure had been discussed in Committee, it could have been better examined. We are getting no answers and we expect none, but very serious points have been raised.

Sir Nicholas Fairbairn

There is a perfectly good solution: if anyone in the pub is sober enough to count up to the limit, all he will do is buy pints and pass them out to those standing outside—not a very good idea.

Mr. Wilson

The hon. and learned Gentleman confirms my point. Football or rugby crowds have never been examined in this context. Does anyone seriously think that in these circumstances—

Lord James Douglas-Hamilton

I have given further consideration to the matter and, given what has been said, I think that there is a case for consulting more widely than merely with Grampian police. That means that we shall not be able to deal with the matter conclusively in this Bill, but I shall withdraw the new clause and we will consult more widely—

Mr. Dennis Canavan (Falkirk, West)

Hear, hear.

Lord James Douglas-Hamilton

The hon. Gentleman had better wait until he gets back to his constituency, where he will find that the police take a view different from him.

Mr. Canavan

They usually do.

Lord James Douglas-Hamilton

Indeed. My hon. Friends have validly stated that there should be wider consultation, so the matter cannot be dealt with in the context of this Bill.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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