Licensing (Amendment) (Scotland) Bill (Hansard, 26 March 1993)

§ Mr. Phil Gallie (Ayr)
I beg to move, That the Bill be now read the Third time.
Today, it is my unenviable—perhaps some would say, regrettable—task to present the Licensing (Amendment) (Scotland) Bill. I carry a great burden, if not an unusual one, because it is, indeed, a rare task. None the less, I feel privileged as a minnow in the shoal of the massed ranks of Tory Members on these green Benches. It is, perhaps, not such a mass as before the 1992 election, but, for Scotland, I am pleased to say that it is an expanded mass. We have almost 20 per cent. more representation than we had prior to the 1992 election.
What is unusual or regrettable about the task to which I refer? Indeed, what is the task? If I do not define it, I shall risk your rebuke, Madam Speaker. The task is to amend the Licensing (Scotland) Act 1976. The means is the Licensing (Amendment) (Scotland) Bill 1992. I emphasise 1992, because the Bill is not based on a sudden impulse. It has been around for a while. It was first introduced in December. Since then, it has experienced a tortuous journey through Committee, where it had a thorough analysis. It was fully endorsed by hon. Members on both sides of the House. It was, indeed, warmly welcomed.
The Bill was fully debated for a marathon 12 minutes in Committee on 16 February. Until that time, all had gone to plan. Then, in the words of Britain's finest, most revered and most respected poet, Robert Burns, whose birth in Alloway in my constituency some 200 years ago gives cause for a worldwide celebration and ensures a worldwide reputation for my constituency and whose claim to such a position would, I am sure, be endorsed by Opposition Members, The best laid schemes o' Mice an' Men, Gang aft agley. Something went wrong when the Bill was presented for Third Reading at the end of February. An Opposition Member representing a Welsh constituency was heard to object. I suggest that a slight error may have been made, because it seemed more like a cough. It is a reasonable Bill, it is fully accepted by all and there was no real reason for objection. But Mr. Deputy Speaker thought that he heard an objection and, of course, Deputy Speakers are always right. I have no argument with that. The Bill is necessary to the well-being of the Scottish people and the fortunes of all who live in the land beyond Hadrian's wall.
That brings me back to my opening words—unusual, regrettable and rare. The Bill is necessary because of a mistake that was made by the Government and endorsed by a Committee of the House. I am sure that hon. Members will agree that a mistake by a Conservative Government is a rare event. It is an unusual event, certainly since 1979. I offer no comment on pre-1974.
A mistake was made in the Planning and Compensation Act 1991. The Bill amends the Licensing (Scotland) Act 1976 and the problem is contained in section 23 of that Act, which requires licensing boards, when granting new liquor licences, to witness a certificate to ensure that the 1345 availability of premises to which it refers is valid with respect to planning, building control and hygiene. Applicants must produce a certificate showing that full or outline planning permission has been obtained under section 1 of the Town and Country Planning (Scotland) Act 1972 and that further planning permission is not required.
As from 25 September 1992, section 51 determinations were replaced by section 90A certificates of lawfulness of proposed use of development, which were introduced by section 42 of the Planning and Compensation Act 1991. Therein lies the problem that we are dealing with today.
The 1991 Act repealed section 51 of the 1972 Act, but it did not consequently amend section 23(2) of the Licensing (Scotland) Act to refer to section 90A certificates.

§ Mr. Bernard Jenkin (Colchester, North)
What a scandal.

§ Mr. Gallie
It sent reverberations shaking through every town hall in Scotland. It sent every licensee who thought that he might wish to change the terms of his licence scurrying to his solicitors to see what dastardly Act had been imposed on them.
The Bill rectifies all those wrongs. Clause 1(1) will amend section 23 of the Licensing (Scotland) Act. Clause 1(2) adds to section 23(2) of the 1976 Act a reference to a certificate under section 90A of the Town and Country Planning (Scotland) Act. It should be noted that the reference to section 51 remains, to ensure that determinations established before 25 September 1992 remain valid. That is very important. Section 90A enables planning authorities to grant certificates of lawful use or development to premises. Clause 2(1) contains the short title and subsection (2) provides that the Bill extends to Scotland only. I thank hon. Members from England and Wales for being present to listen to this essential piece of Scottish legislation.
I said that it is unusual and rare that such amendments are necessary—certainly in Scottish legislation. That reflects credit on my right hon. Friend the Secretary of State for Scotland and his energetic, vibrant and meticulous team of Scottish Office Ministers, and there is no one more fitting to represent them today than my hon. Friend the Member for Edinburgh, West (Lord James Douglas-Hamilton). It also reflects credit on Scottish Office officials, who draft legislation. I pay particular tribute to them.

§ Mr. Jenkin
I congratulate my hon. Friend on the detail and thoroughness with which he has approached this short but complex measure, but will he comment on the source of the error, how it arose and who might have been responsible for it?

§ Mr. Gallie
We are dealing with a complex array of measures, with many pages of documents amending legislation, especially the 1991 Act. It would be incongruous to investigate one minor omission among a mass of legislation. We do not need a witch hunt; we simply need to rectify a wrong, which I seek the blessisng of the House to do today.
I thank the Scottish Office officials for their speedy action in drafting the amendment. I particularly thank 1346 Michael Clancey of the Law Society of Scotland, who has been of much assistance in highlighting and assisting with the problems surrounding the Bill. It would be wrong not to thank the hon. Member for Dumbarton (Mr. McFall), who is not here today, and the hon. Member for Glasgow, Muyhill (Mrs. Fyfe) who, like me, has given up a day in her constituency to be here. My constituents in Ayr usually expect my presence on a Friday. I ask all hon. Members in the House today to approve the Bill and to give it their full support.

§ Mrs. Maria Fyfe (Glasgow, Maryhill)
I congratulate the hon. Member for Ayr (Mr. Gallie) on introducing the Bill, and I congratulate the officials concerned in the Scottish Office and anyone else who played a part in correcting an admitted error.
I do not want to prolong discussion of the Bill as our agenda today contains an important Bill that matters a great deal to the people of Scotland—the Carrying of Knives etc. (Scotland) Bill on which, I hope, the hon. Member for Ayr will speak.
The Labour party supports the Bill. We know that the Convention of Scottish Local Authorities is happy for it to be introduced. It is a welcome change for a Conservative Member to admit an error. That is a rare event. Confession is good for the soul and I hope that the Government will confess their errors more often.

§ The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)
I warmly congratulate my hon. Friend the Member for Ayr (Mr. Gallie) on his splendid Bill which helps to put right an anomaly and to rectify the matter. I also thank the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) for her support in the matter.
During the past 90 years, there have been only four major pieces of licensing legislation in Scotland. The Licensing (Scotland) Act 1976 arose from the recommendations of the report of the departmental committee on Scottish licensing, chaired by Dr. Christopher Clayson. That forms the main corpus of current law on liquor licensing in Scotland. It was amended in 1990, as my hon. Friend the Member for Ayr said, by the Law Reform (Miscellaneous Provisions) (Scotland) Act, which introduced the new concept of children's certificates and standardised permitted hours for pub opening during the week and on Sundays.
The current liquor licensing law in Scotland has generally stood the test of time, although, from time to time, proposals are made to improve procedures and we consider them carefully. Problems occasionally arise which, if not remedied by statute, result in lacunas. The Bill aims to remove such a lacuna.
Section 23 of the Licensing (Scotland) Act 1976 requires applicants for the grant of a new liquor licence to produce to the licensing board certificates about the suitability of their premises in relation to planning, building control and food hygiene. The applicant has to submit a certificate from the planning authority to the effect that full or outline planning permission has been obtained or that the planning authority has made a determination under section 51 of the Town and Country Planning (Scotland) Act 1972 that planning permission is not required.
1347 With effect from 25 September 1992, section 51 determinations will be replaced by section 90A certificates of lawfulness of the proposed use or development, introduced by section 42 of the Planning and Compensation Act 1991. The 1991 Act repealed section 51 of the 1972 Act, but, unfortunately, it did not make any consequential amendment to section 23(2) of the 1976 Act. I am grateful to my hon. Friend the Member for Ayr for saying that there is no need for a witch hunt in this connection. Occasionally, even the best officials in Whitehall and Ministers can miss errors. I am glad that my hon. Friend is putting the matter right.
The purpose of the Bill is to amend the Licensing (Scotland) Act 1976 to take account of the changes introduced by the Planning and Compensation Act 1991. The change introduced by that Act concerned what are known as certificates of lawful use or development. That amendment was a single point of detail in a wide-ranging Act. The impact on the Licensing (Scotland) Act 1976 was inadvertent, so it may be helpful for me to explain some of the underlying issues.
In general terms, the Planning and Compensation Act 1991 was intended to improve the efficiency of the planning system and of the compensation code. It did so in a number of ways, not all of which are directly related, and as a follow-up to the commitments in the environment White Paper "This Common Inheritance" and as a result of recommendations in the 1989 Carnwath report, which focused primarily on the efficiency and effectiveness of the planning enforcement system. It had been the subject of detailed investigation and Mr. Carnwath undertook to carry out a review of that work and to draw up appropriate conclusions and recommendations for change.
I do not intend to detail those recommendations, but I shall highlight some of the general conclusions that Mr. Carnwath reached, as they provide the relevant background to the Planning and Compensation Act 1991. Mr. Carnwath concluded that previous enforcement arrangements were unduly technical and complex and that, as a result, there was considerable confusion about what the law required. He also considered that the previous system did not lend itself to dealing quickly with urgent cases of enforcement. Speed is, of course, necessary in these matters. The processes needed to be simplified. Similarly, the previous arrangements were too cumbersome and protracted for dealing with even the more simple breaches of conditions. The system also lacked teeth, in the sense that the courts appeared to be imposing inadequate penalties, a point which my hon. Friend the Member for Ayr has rightly highlighted on many occasions.
The national guidance provided to local authorities was seen as being ambiguous. In consequence, Mr. Carnwath recommended that we provided for better information and co-operation, that we rationalised and simplified our enforcement notice procedures, that we clarified the powers of the Secretary of State on appeal, that we reduced legal delay in the courts, that we better defined the nature of lawful land use and that we modified the stop notice and enforcement procedures. He recommended that we introduced injunctions and interdicts, that we increased penalties, as my hon. Friend the Member for Ayr would wish, and that we revised our policy guidelines.
The Planning and Compensation Act 1991 sought to implement many of the recommendations. In so doing, our attempts to provide for a determination of lawful land use 1348 inadvertently clashed with the need to provide certificates of established use under section 23 of the Licensing (Scotland) Act 1976. The precise significance and use of the certificates is inevitably a complex arid technical matter. In general terms, the 1991 Act sought on this point of detail to define the concept of lawfulness in the context of land use and to introduce a better system for certifying the lawfulness of proposed or existing operations, uses or activities on, over and under land. It did so by providing for the new certificates of lawful use or development. The Town and Country Planning (Scotland) Act 1972 provided for certificates of established use or section 51 determinations for which, as my hon. Friend the Member for Ayr realises, planning permission was not required.
Both arrangements were repealed by section 42 of the 1991 Act. The intention was to provide a single coherent mechanism for establishing the planning status of land and to provide a statutory document for certifying the lawfulness of such uses. The benefits of such a revision were greater flexibility, convenience and a less ambiguous statutory arrangement for certifying the lawfulness of land use.
The new procedure provides a single mechanism for establishing the planning status of land, whether for existing use or for proposed development. It provides for the first time a mechanism for obtaining from the planning authority or from the Secretary of State on appeal a statutory document for certifying the lawfulness for planning purposes of existing operation, development or use.
The system contrasts sharply with the previous system under which lawfulness was determined not by reference to a single certificate, but by reference to a number of different conditions. Those conditions are related to particular definitions of development under the 1972 Act, to the nature of exact grants of planning permission and to the date of development. Anomalies could arise under those arrangements. It was, for example, possible for breaches of planning control to become immune from enforcement action. It was thus possible for ambiguities to arise, such as developments that were unlawful, but were immune from any remedies. That anomaly no longer exists.
If a development or activity is immune from enforcement action, it is now also lawful for planning purposes. In that context, certificates of lawful use or development will not preclude the need to examine the underlying issues, but, once they have been examined and a certificate has been issued, remaining ambiguities will be removed as a statutory and, therefore, unambiguous statement of the lawfulness of the land.
A number of other benefits have been conferred by the new certificates. The Act enables anyone to apply to the planning authority for a decision on whether an activity is lawful for planning purposes. The certificates also provide for a detailed statement of such land uses. Once issued, the certificates preclude the need for further detailed work by the applicants or planning authorities in relation to the granting of planning permission. The certificates equate to the granting of planning permission for the designated activity. Clearly, that will have a beneficial effect and will reduce the work for both the developer and the regulator. I stress that the certificates in no way pre-empt the need for careful consideration of the appropriateness of the specific land uses.
1349 My hon. Friend the Member for Ayr has done a substantial service in introducing the Bill to put right the anomaly. I welcome the comments of the hon. Member for Maryhill and I am glad that the matter can be put behind us and that the Bill will soon be on the statute book. I congratulate my hon. Friend the Member for Ayr.