§ [Nos. 5–11.]
§ Schedule 4, leave out Schedule 4.
§ The Commons disagreed to this Amendment and proposed the following Amendments to the words so restored to the Bill:416
Page 91, line 32, at end insert—
4A. Section 10(2)(b) and section 10(5) of this Act shall, with any necessary modifications., apply in relation to an application for Sunday opening as they apply in relation to an application for the grant of a new licence."
§ Page 91, line 43, after "that" insert ", except as otherwise provided by this Act".
Page 92, line 16, at end insert—
11A. An application for the renewal of a public house licence or refreshment licence under section 10 of this Act shall state whether the applicant is making an application for Sunday opening."
§ Page 92, line 17, leave out "5 to 9" and insert "4A to 10".
§ Page 92, line 18, after "11" insert "or 11A".
Page 92, line 20, at end insert—
12A. The grant of an application for Sunday opening under paragraph 2 or 11 above shall come into effect on the making of the grant except that where there were objections at the hearing the grant shall not come into effect until—
12B. The grant of an application for Sunday opening under paragraph 11A above shall come into effect on the renewal of the licence to which the application relates.
12C. If an application for Sunday opening is made under paragraph 11A above any existing grant of such an application shall continue to have effect—
12D. The grant of an application for Sunday opening shall cease to have effect when the licence to which it relates ceases to have effect."
§ Lord KIRKHILL
My Lords, I beg to move that the House doth not insist on their Amendment No. 5 to which the Commons have disagreed, and agree to Amendments Nos. 6 to 11 en bloc proposed by the Commons to the words so restored to the Bill. The point which has to be made, as has earlier and usually been the position, is that there should be safeguards on the question of Sunday opening. I agree with the Commons that Schedule 4 contains important safeguards which should be preserved. The Amendments to the Schedule made by the Commons have two main purposes. These are to apply to applications for Sunday opening the relevant procedural requirements which 417 are imposed on applications for licences and to provide for the currency of permission for Sunday opening to he of the same duration as the licence to which it relates.
§ Moved, That this House doth not insist on the said Amendment to which the Commons have disagreed, and agree to the Amendments proposed by the Commons to the words so restored to the Bill.—(Lord Kirkhill.)
§ Baroness ELLIOT of HARWOOD
My Lords, I do not know what has happened to all our supporters on this Licensing Bill, but again I would simply say that in my view this is a great mistake. We are now putting ourselves into an inferior position to that of the English. In my view that is a mistake. I think that the debates which went on in the other House did not face the problems which they will now have to face, especially in regard to the making of applications for licences for Sundays, and so on. That is a great mistake.
§ On Question, Motion agreed to.
§ 7 p.m.
My Lords, I beg to move as a further Amendment to the words restored to the Bill, manuscript Amendment No. 12:Schedule 4, page 92, line 39, leave out from second ("to") to end of line 40 and insert ("each individual premises named in a complaint").My Lords, I beg to move manuscript Amendment No. 12 which has been circulated in my name. It seems not inappropriate that at an hour when noble Lords are allowed to rise from their pay beds and take some refreshment we should perhaps turn to a Bill concerned with refreshment, albeit of an alcoholic nature. At the outset, let me reassure the House that I have no intention of attempting a rerun of the arguments about the opening of public houses in Scotland on Sundays, in regard to which I made my position clear in Committee and on Report, with both my voice and my vote. Not only would it be an abuse of your Lordships' tolerance, but it would serve no useful purpose to add to the remarks already made by my noble friend Lady Elliot of Harwood.
My Lords, any similarity between the issue of Schedule 4 and the major legislative 418 matters concerning our attention at this time is purely coincidental, but there is a coincidence. It so happens that Schedule 4 to the Bill has not been debated as to its content in any detailed sense. However, any similarity to anything else ends here, because in our Public Bill Committee we followed our convictions and inclinations, and also the lead of the noble and learned Lord, Lord Guest, and we expunged Schedule 4 from the Bill. Maybe that was a tactical error. Certainly I was not seized then of the point I am bringing to the attention of your Lordships this evening. In any event, on Report, this house backed in the Division Lobbies the action of the Public Bill Committee.
I repaired to another place to listen, Divisions here permitting, to the debate on Schedule 4 when the Bill returned to the House of Commons, and I have since read what else was said that I may have missed. The debate did not enlighten me on the point which is now troubling me, since it only re-enacted the arguments pertaining to Sunday opening of public houses in general, despite the absence of any consideration of the Schedule when it was introduced on Third Reading in another place, to meet the insistence of Members in another place on Committee and on Report with regard to writing in Sunday opening. I would not deny a certain sympathy with some of the main arguments advanced here and in another place—particularly in another place—concerning the peculiar circumstances of some of our city areas. Maybe Schedule 4 is a way of dealing with these particular problems. Someone who has pushed as many pints and halves of whisky across the bar as I have could never be doubted as to his sympathy with the staff affected—another point made in another place but which, frankly, is not one that could be dealt with in this Bill. It is a matter for the staff and the employers in their own good time to sort out.
That I think that a number of Amendments should have been made to Schedule 4 is not material to my case this evening. Under the twin constraints of procedure and appropriate behaviour, I am content with my suggested Amendment in order to draw to the attentoin of your Lordships a single provision in Part II of Schedule 4. Part II of Schedule 4 becomes operative when permission 419 has been granted to a public house to open on a Sunday. Part II provides that where a competent objector—and if any noble Lord wishes to check on what they are he will find them in Clause 16(1) of the Bill—complains, as provided for, to a licensing board, and the Board finds the complaint justified, the Board shall make a Sunday restriction order. The order can either say, "No opening on Sunday henceforth", or it can alter the permitted opening hours on Sunday.
My Lords, paragraph 15 on page 92 says:The licensing board may make a Sunday restriction order in relation to individual premises or in relation to a group of premises in respect of which the same type of licence is held".I believe that one may interpret those words to mean that a licensing board is empowered to close public houses in a group, whatever that may be (in a locality one assumes) which have not offended under the terms of the Bill, purely on the grounds that one public house in the locality had attracted a complaint that the board found proved. I have found nothing in any official utterance to suggest that it is intended that Schedule 4 should be used as a device for implementing an unofficial, unauthorised, no-licence resolution in respect of Sundays, and I acquit the Government of any such intention. I would submit, however, that it would be open to a licensing board, were it so minded, to so operate it if the interpretation of paragraph 15 be as I suggest. That such an eventuality should arise would be singularly undesirable in any circumstances, and particularly when arising from a Bill which abolishes no-licence and limiting resolutions is obvious.
Paragraph 14 on page 92 of the Bill draws attention to the procedure to be followed on receipt of a complaint, bringing into play subsections (4), (5) and (6) of Clause 31, with, as it puts it, "necessary modifications". I do not find comfort in any safeguard that it might be suggested lies here. I still submit that paragraph 15 can stand on its own simply as an expression of the power of the licensing board. Even if one accepted that, it should be read in conjunction with paragraph 14 and its attendant provisions. I think the position remains far from clear.
420 Surely the words "necessary modification" in paragraph 14 could attract modifications to meet the apparent power of paragraph 15. Furthermore, I can find nothing in the wording of Clause 31 of the Bill to say that the requirement to notify a licensee of the intention to hold a hearing, where a complaint has been lodged, carries with it a restriction that notification can be made only to the licensee or licensees against whom a complaint is made. That might appear to quarrel with common sense, but that is not so, surely, when one has regard to the words in paragraph 15 of Schedule 4. The words in the manuscript Amendment seek to make clear that a restriction order should be made only in relation to those premises that provoked the complaint, if the complaint is found proven.
I think that dubiety exists; that the words in the Bill do not make clear what I am sure is the Government's intention. If the words of which I complain are open to the interpretation which I suggest, there are only two further points to make. The first relates specifically to the Bill and it is the less important of the two, although it is important in the context of this reforming measure. The Bill creates a new category of licence—the refreshment licence. In my speech I have, to avoid confusion, particularly not referred to the fact that refreshment licences can be dealt with under this Schedule. The point I make here is not in regard to that. I think that all of us who have taken an interest in this measure hope, all your Lordships hope and everyone in Scotland hopes, that the creation of these refreshment houses will have a civilising influence upon drinking in Scotland and become part and parcel of improvement generally in the conditions of the licensed premises to which people resort for refreshment.
However, if a hoard was so minded and able suddenly to close all public houses in an area where there were also refreshment houses, purely because of action under my interpretation of the Bill, the refreshment houses would be forced, regardless of their wishes, inevitably to become bars or public houses overnight, or choose to close on Sundays.
There is the second point, which is my main point in this particular argument. It is a general one and goes outside the 421 Bill. If I am right, we are surely introducing a singularly unattractive principle—a principle which says, in effect, that if a Mr. Gray is convicted and imprisoned, every other Mr. Gray in the neighbourhood should also be gaoled. To incarcerate all Grays and silence them might appeal to the noble Lord, Lord Kirkhill, at this moment, and perhaps to other noble Lords, but I am sure that he would be as opposed accidentally to introducing such a principle into the Bill as would anyone in your Lordships' House.
It would, I am sure, he singularly inappropriate to send this Bill back for further debate and argument in another place. Therefore, I hope that the Minister can either say that he is pleased to accept the Amendment, in which case it will require no noticeable amount of Parliamentary time in another place or perhaps he could, in the circumstances in which we find ourselves, say that when the Department issues the instructions and guidance, which inevitably it must with a measure of this complexity, he will undertake to have it made clear in any circular that the Government's intention as to how paragraph 15 should be interpreted is the same as my Amendment seeks to spell out.
§ Lord KIRKHILL
My Lords, the noble Lord, Lord Gray, will not be surprised to hear that I am unable to accept his Amendment. However, in view of what has been said, I am willing to give this assurance. When the time comes for guidance to be issued in a Departmental circular on these provisions, it is envisaged that licensing boards will be advised that premises which have not been the subject of a complaint should not be dealt with under Part II of Schedule 4.
The Earl of SELKIRK
My Lords, we should express our gratitude to the noble Lord, Lord Gray, for his eagle eye in finding a perfectly clear case of bad drafting. This is rather more interesting than it appears, because the Bill—and although it is non-political, it is controversial—has been thoroughly examined in the other place. It has been thoroughly examined in this place, and it is quite interesting to see that numerically we sent no less than 53 Amendments to the other place. Of those, only three were disagreed to. This is how the constitution of 422 this country works. It is not sensational; it is not a matter which catches the eye of the media, whether in writing, pictures or orally, but it is a very important function and the noble Lord has shown how important it is to exercise revising factors.
To me there is a perfectly clear lack of logic between Clause 16 and Part II, paragraph 15 of the Schedule. The clause deals purely in the singular—that is to say, when a mistake is made that particular house can be restricted and the Schedule goes to groups of houses. There is not only a lack of logic here but it is also contrary to natural justice. We are grateful to Lord Gray for drawing our attention to it. I am sorry that the noble Lord, Lord Kirkhill, cannot accept what is obviously a desirable, proper and right Amendment. I am not unsympathetic to the problems that he faces, but it is a pity that he cannot accept the Amendment.
§ The Earl of MANSFIELD
My Lords, one does not want to be contentious about this. Equally, perhaps, the noble Lord, Lord Kirkhill, treated my noble friend, Lord Gray, a little cavalierly. I say that purely from the point of view of trying to understand what paragraph 15 says. Perhaps I should preface my remarks by declaring an interest, because I am the holder of a justice's licence in Scotland. Although I may be a publican, in view of the flattering remarks made about me in the Daily Mail yesterday, I hope that as a landlord noble Lords opposite will not think of me as a sinner.
Could the noble Lord tell us what those who were engaged in the drafting of this subsection intended it to mean. Did they intend it to mean that if, for instance, a firm or individual held premises or several sets of premises with Sunday licences, misbehaviour at one could bring the curtain down on all? Is that what is meant, otherwise it is difficult to see the logic?
The only other matter about which I am a little puzzled is this. If Parliament makes a legislative nonsense—and goodness knows! in this Session we have made an awful lot—on this particularly small point, is it constitutionally right to leave it to some administrative set of instructions, issued by we know not who to persons whose identity is equally obscure, setting out how presumably properly appointed 423 justices are to carry out their duties in accordance with the Act on which they are engaged? It is a matter upon which the noble Lord might care to reflect.
§ Lord KIRKHILL
My Lords, certainly it was not my intention, and I hope noble Lords did not feel that I was treating in a cavalier manner the very serious point which the noble Lord, Lord Gray, was putting before your Lordships' House. Indeed, I join in paying tribute to the fact that throughout the somewhat prolonged debate upon the Bill the noble Lord has been pertinacious in his close analysis and line by line concern with the Bill. I think I can in part allay fears which your Lordships have expressed. If we look at the provisions of Part II of the Schedule, paragraph 13 gives the Board power to make an order to restrict or reduce Sunday opening on a complaint being made. Paragraph 14 then applies the provisions of subsections (4) to (6) of Clause 31 to the Sunday restriction order procedure with any necessary modifications. It is necessary, therefore, then to look in detail at these subsections.
Subsection (4) of Clause 31 says that on receipt of a complaint the board shall decide whether or not to hold a hearing on the issue. I emphasise the words "on the issue", because the issue which is to be heard is the issue raised by the complaint and no other. Subsection (5) then goes on to set out what happens when the board has decided to hold a hearing on the issue raised by the complaint. Under paragraph (a) of that subsection, the clerk of the board shall serve on the holder of the licence a notice specifying the complaint and the grounds upon which the restriction of the orders is sought.
My Lords, it is inconceivable, in our view, that a board would use this procedure to notify a licence holder whose premises had not been the subject of a complaint. Paragraph (d) further protects the licence holder by providing that the Board shall not order restriction of the hours without hearing the holder. The hearing is, of course, on the issue raised by the complaint. Subsection (6) then gives additional protection to the licence holder by giving him a right of appeal to the sheriff, and ultimately, on a point of law, to the Court of Session. I might emphasise, with regard to the 424 right of appeal to the sheriff, that that is a fairly speedy course of action on the Scottish scene.
My Lords, when all these provisions are read together, I do not see any danger that a licence holder whose premises had not been the subject of a complaint could lose his Sunday hours. It may then he asked—and indeed the noble Lord posed this question—what is the purpose of paragraph 15 of Schedule 4. At least, the noble Lord, Lord Gray, alluded to that. It is included to allow a board to make an order in relation to a group of premises where the group of premises has been the subject of a complaint which is upheld at a hearing.
A comparable provision is included in subsection (3) of Clause 64, which deals with restriction orders concerning the permitted hours after 10 p.m. Again its purpose is to enable the board to make a single order affecting a group of premises where a complaint about a group of premises is upheld. That is the Government's position. However, my earlier statement, while it falls short of the acceptance by the Government of the position of the noble Lord, Lord Gray, I submit goes more than half-way to meeting his point.
§ 7.28 p.m.
My Lords, I will confess to disappointment that my words are not to get into the Bill through ready acceptance by the noble Lord, Lord Kirkhill. I should like to thank my noble friends for their support and for pointing to aspects of the situation which I had not myself seen. In view of the hour and the business of the night—and I understand perhaps even early morning—that lies before us, I will not now indulge in a debate with the noble Lord, Lord Kirkhill. I would only comment—he said I might not he surprised to find he did not agree with me—that I am sure he will not be surprised to find that I do not agree with him. I would cite one aspect in particular which calls into question the introduction of similarities from other parts of the Bill. In Schedule 4 we are inviting licensing boards to make rather complicated and difficult qualitative judgments concerning Sunday; and there are words in that Schedule which noble Lords will appreciate are going to place difficulties enough before licensing boards without our adding to 425 them. It seems sad that if, as seems to be the case, the wrong words have got into the Bill, we cannot deal with them now.
Having said all that, it would be churlish of me not to acknowledge the ready way in which the noble Lord, Lord Kirkhill, has come to meet me on this, and to say that I am grateful for the statement he has made as to what will happen. However, perhaps one day an opportunity will occur to tidy this up, but until that day arises I hope my noble friends, to whom once again I express my thanks, will accept that we should rest, if not entirely content, with the offer of the noble Lord, Lord Kirkhill. With those observations, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.